Brownlie's Principles of Public International
Law
(8th Edition)
James R Crawford
Outline Contents
PART I PRELIMINARY TOPICS
1 Introduction 3
2 The Sources of International Law 20
3 The Relations of International and National Law 48
PART II PERSONALITY AND RECOGNITION
4 Subjects of International Law 115
5 Creation and Incidence of Statehood 127
6 Recognition of States and Governments 143
7 International Organizations 166
PART III TERRITORIAL SOVEREIGNTY
8 Forms of Governmental Authority over Territory 203
9 Acquisition and Transfer of Territorial Sovereignty 215
10 Status of Territory: Further Problems 245
PART IV LAW OF THE SEA
11 The Territorial Sea and Other Maritime Zones 255
12 Maritime Delimitation and Associated Questions 281
13 Maritime Transit and the Regime of the High Seas 296
PART V THE ENVIRONMENT AND NATURAL RESOURCES
14 Common Spaces and Co-operation in the Use of
Natural Resources 333
15 Legal Aspects of the Protection of the Environment 352
PART VI INTERNATIONAL TRANSACTIONS
16 The Law of Treaties 367
17 Diplomatic and Consular Relations 395
18 Unilateral Acts; Estoppel 415
19 Succession to Rights and Duties 423
PART VII STATE JURISDICTION
20 Sovereignty and Equality of States 447
21 Jurisdictional Competence 456
22 Privileges and Immunities of Foreign States 487
PART VIII NATIONALITY AND RELATED CONCEPTS
23 The Relations of Nationality 509
24 Nationality of Corporations and Assets 527
PART IX THE LAW OF RESPONSIBILITY
25 The Conditions for International Responsibility 539
26 Consequences of an Internationally Wrongful Act 566
27 Multilateral Public Order and Issues of
Responsibility 590
PART X THE PROTECTION OF INDIVIDUALS AND GROUPS
28 The International Minimum Standard: Persons and
Property 607
29 International Human Rights 634
30 International Criminal Justice 671
PART XI DISPUTES
31 The Claims Process 693
32 Third-Party Settlement of International Disputes 718
33 The Use or Threat of Force by States 744
Index 775
Contents
Author biographies xvi
Preface xvii
Table of treaties xxi
Table of cases xxxii
Abbreviations lxii
Glossary lxxvii
PART I PRELIMINARY TOPICS
1 INTRODUCTION 3
1. Development of the Law of Nations 3
2. International Law as Law 6
3. The Reality and Trajectory of International Law 12
2 THE SOURCES OF INTERNATIONAL LAW 20
1. Introduction 20
2. The Statute of the International Court of
Justice 21
3. International Custom 23
4. Treaties 30
5. General Principles of Law 34
6. Judicial Decisions 37
7. Other Material Sources 42
8. Other Considerations Applicable in Judicial
Reasoning 44
3 THE RELATIONS OF INTERNATIONAL AND NATIONAL
LAW 48
1. Theoretical Approaches 48
2. Relations of International and National Law: An
Overview 51
3. International Law in the Common Law
Tradition 62
4. International Law in the Civil Law Tradition 88
5. Conclusions 110
PART II PERSONALITY AND RECOGNITION
4 SUBJECTS OF INTERNATIONAL LAW 115
1. Introduction 115
2. Established Legal Persons 116
3. Special Types of Personality 121
4. Conclusions 126
5 CREATION AND INCIDENCE OF STATEHOOD 127
1. Introduction 127
2. Legal Criteria of Statehood 128
3. Some Issues of Statehood 136
4. Achieving Independence: Secession and SelfDetermination 141
5. Identity and Continuity of States 142
6 RECOGNITION OF STATES AND GOVERNMENTS 143
1. Recognition as a General Category 143
2. Recognition of States 144
3. Recognition of Governments 151
4. Collective Non-Recognition and Sanctions 155
5. Issues of Recognition Before National Courts 157
7 INTERNATIONAL ORGANIZATIONS 166
1. Introduction 166
2. Legal Personality 166
3. Privileges and Immunities 171
4. Performance of Acts in the Law 179
5. Interpretation of the Constituent Instrument 184
6. Relations of International Organizations 188
7. Law-Making Through Organizations 192
8. Control of Acts of Organizations 196
(p. ix) PART III TERRITORIAL SOVEREIGNTY
8 FORMS OF GOVERNMENTAL AUTHORITY OVER
TERRITORY 203
1. The Concept of Territory 203
2. Key Terms and Distinctions 204
3. Territorial Administration Separated from State
Sovereignty 206
4. Restrictions on Disposition of Territory 210
5. Conclusions 211
9 ACQUISITION AND TRANSFER OF TERRITORIAL
SOVEREIGNTY 215
1. Introduction 215
2. Determining Title 216
3. The ‘Modes’ of Acquisition 220
4. Displacement of Title 229
5. Extent of Sovereignty: Territorial Disputes 237
6. Territorial Sovereignty and Peremptory
Norms 242
10 STATUS OF TERRITORY: FURTHER PROBLEMS 245
1. International Procedures of Territorial
Disposition 245
2. Sovereignty Displaced or in Abeyance 249
PART IV LAW OF THE SEA
11 THE TERRITORIAL SEA AND OTHER MARITIME
ZONES 255
1. The Territorial Sea 255
2. The Contiguous Zone 265
3. The Continental Shelf 269
4. The Exclusive Economic Zone/Fisheries
Zone 274
5. Other Zones for Special Purposes 279
(p. x) 12 MARITIME DELIMITATION AND ASSOCIATED
QUESTIONS 281
1. Introduction 281
2. Territorial Sea Delimitation 283
3. Continental Shelf Delimitation 285
4. Exclusive Economic Zone Delimitation 293
5. The Effect of Islands Upon Delimitation 294
13 MARITIME TRANSIT AND THE REGIME OF THE
HIGH SEAS 296
1. Introduction 296
2. Freedom of the High Seas 297
3. Jurisdiction over Ships on the High Seas 311
4. Regimes of Transit to and from the High
Seas 316
5. Regulation of High Seas Fisheries 320
6. The Seabed and Ocean Floor Beyond the Limits
of National Jurisdiction 326
PART V THE ENVIRONMENT AND NATURAL RESOURCES
14 COMMON SPACES AND CO-OPERATION IN THE
USE OF NATURAL RESOURCES 333
1. Introduction 333
2. Co-operation in the Generation and Use of
Energy 334
3. Transboundary Water Resources 337
4. The Polar Regions 345
5. Outer Space 347
15 LEGAL ASPECTS OF THE PROTECTION OF THE
ENVIRONMENT 352
1. The Role of International Law in Addressing
Environmental Problems 352
2. Emergent Legal Principles 356
3. Development of Multilateral Standard-Setting
Conventions 360
4. Evaluation 364
(p. xi) PART VI INTERNATIONAL TRANSACTIONS
16 THE LAW OF TREATIES 367
1. Introduction 367
2. Conclusion of Treaties 371
3. Reservations 374
4. Observance, Application, and Interpretation of
Treaties 377
5. Amendment and Modification of Treaties 386
6. Invalidity, Termination, and Suspension of
Treaties 387
17 DIPLOMATIC AND CONSULAR RELATIONS 395
1. Modalities of Interstate Relations 395
2. General Legal Aspects of Diplomatic
Relations 396
3. Staff, Premises, and Facilities of Missions 399
4. Inviolability of Missions 402
5. Diplomatic Agents 405
6. Other Matters 411
18 UNILATERAL ACTS; ESTOPPEL 415
1. Introduction 415
2. Unilateral Acts 416
3. Estoppel 420
4. Relation Between Unilateral Acts and
Estoppel 421
19 SUCCESSION TO RIGHTS AND DUTIES 423
1. Introduction and Overview 423
2. The Forms of Territorial Change 425
3. State Successsion and Municipal Legal
Relations 428
4. State Succession: Fields of Operation 438
5. Conclusions 443
(p. xii) PART VII STATE JURISDICTION
20 SOVEREIGNTY AND EQUALITY OF STATES 447
1. The Concept of Sovereignty 447
2. Some Uses of ‘Sovereignty’ 448
3. The Interaction of States with International
Law 449
21 JURISDICTIONAL COMPETENCE 456
1. Overview 456
2. Prescriptive Jurisdiction over Crimes 457
3. Civil Prescriptive Jurisdiction 471
4. The Separateness of the Grounds of
Jurisdiction 476
5. Enforcement Jurisdiction 478
6. A General View of the Law 486
22 PRIVILEGES AND IMMUNITIES OF FOREIGN
STATES 487
1. Evolution of the International Law of
Immunity 487
2. The Modalities of Granting Immunity 491
3. Attachment and Seizure in Execution 502
4. Further Concerns and Issues 504
PART VIII NATIONALITY AND RELATED CONCEPTS
23 THE RELATIONS OF NATIONALITY 509
1. Introduction 509
2. The Effective Link Principle and Nottebohm 513
3. The Application of Rules of International Law 518
4. A Functional Approach to Nationality 525
24 NATIONALITY OF CORPORATIONS AND
ASSETS 527
1. General Aspects 527
2. Nationality of Corporations 527
(p. xiii) 3. Nationality of Ships 530
4. Other Rules of Allocation 533
PART IX THE LAW OF RESPONSIBILITY
25 THE CONDITIONS FOR INTERNATIONAL
RESPONSIBILITY 539
1. Configuring the Law of Responsibility 539
2. The Basis and Character of State
Responsibility 540
3. Attribution to the State 542
4. Breach of an International Obligation 555
5. Circumstances Precluding Wrongfulness 563
26 CONSEQUENCES OF AN INTERNATIONALLY
WRONGFUL ACT 566
1. Introduction 566
2. Cessation, Reparation, Invocation 567
3. The Forms of Reparation 569
4. Invocation of Responsibility 580
27 MULTILATERAL PUBLIC ORDER AND ISSUES OF
RESPONSIBILITY 590
1. The Varying Content of Illegality 590
2. Objective Consequences of Illegal Acts 594
3. An Emerging System of Multilateral Public
Order? 602
PART X THE PROTECTION OF INDIVIDUALS AND GROUPS
28 THE INTERNATIONAL MINIMUM STANDARD:
PERSONS AND PROPERTY 607
1. State and Individual: The Search for
Standards 607
2. Admission, Expulsion, and Liabilities of
Aliens 608
3. Requirements for and Standards of Diplomatic
Protection 610
4. Breach and Annulment of State Contracts 627
(p. xiv) 29 INTERNATIONAL HUMAN RIGHTS 634
1. Introduction 634
2. Historical Perspectives 635
3. Sources of Human Rights Standards 638
4. Non-Discrimination and Collective Rights 644
5. Scope of Human Rights Standards: Some
General Issues 651
6. Protection and Enforcement of Human Rights 656
7. An Evaluation 667
30 INTERNATIONAL CRIMINAL JUSTICE 671
1. Introduction 671
2. Development of International Criminal Law and
Institutions 672
3. International Criminal Courts and Tribunals 674
4. International Criminal Justice in National
Courts 687
5. Conclusions 690
PART XI DISPUTES
31 THE CLAIMS PROCESS 693
1. Jurisdiction and Admissibility Distinguished 693
2. Interstate Claims: Prior Negotiations and the
Requirement of a Dispute 694
3. Interstate Claims: Grounds of Inadmissibility 697
4. Diplomatic Protection 701
5. Mixed Claims: Private Persons versus States 715
32 THIRD-PARTY SETTLEMENT OF INTERNATIONAL
DISPUTES 718
1. Peaceful Settlement in General 718
2. Development of International Dispute
Settlement 719
3. The International Court of Justice 721
4. Other International Courts and Tribunals 733
(p. xv) 33 THE USE OR THREAT OF FORCE BY
STATES 744
1. Historical Overview 1815–1945 744
2. The Charter Prohibition on Use or Threat of
Force 746
3. Authorizing the Use of Force: The Security
Council 757
4. Continuing Sources of Controversy under the
Charter 768
Index 775
Author Biographies
Ian Brownlie (1932–2010) was born on 19 September 1932 in Liverpool
and was educated at Alsop High School, Liverpool and Hertford College
Oxford, before undertaking a doctorate at Oxford under Humphrey
Waldock. He spent a year (1955–56) at Kings College Cambridge as
Humanitarian Trust Student in Public International Law. He taught at
Nottingham Law School (1957–63) before becoming a tutorial fellow and
university lecturer in law at Wadham College (1963–76). Following a
period as Professor of International Law at the LSE, from 1980 to his
retirement in 1998 he was Chichele Professor of Public International Law
in the University of Oxford and a Fellow (later Distinguished Fellow) of All
Souls College. He was a member of the International Law Commission
from 1997–2008, and its Chairman in 2007. He was knighted in 2009 for
services to international law. He was the author of numerous books on
international law, including International Law and the Use of Force by
States (1963), African Boundaries (1979), State Responsibility (Part
I) (1983), and his 1995 Hague lectures, The Rule of Law in International
Affairs (Martinus Nijhoff, 1998). A member of Blackstone Chambers, he
was a leading advocate before the International Court of Justice, the
European Court of Justice, the European Court of Human Rights, and
other international tribunals, as well as before the English courts. He was
an arbitrator in a number of important cases including Barbados/Trinidad
& Tobago (2006).
James Crawford is Whewell Professor of International Law and a Fellow
of Jesus College, Cambridge and concurrently Research Professor of
Law at LaTrobe University. He is a Senior Counsel (NSW) and a member
of the English bar, practising from Matrix Chambers. He was the first
Australian member of the United Nations International Law Commission
and was responsible for the ILC’s work on the International Criminal
Court (1992–94) and for the second reading of the ILC Articles on State
Responsibility (1997–2001). A graduate student of Ian Brownlie’s, he has
appeared before the International Court of Justice and other international
tribunals and was, for many years, Director of the Lauterpacht Centre for
International Law in the University of Cambridge.
Preface
It is difficult to overestimate the importance of successive editions of Ian
Brownlie’s Principles for the teaching of international law over the last 45
years. It is not too much to say that several generations of Anglophone
international lawyers have absorbed their sense of the structure of their
subject from Principles.
That is certainly true in my case. I first used this work (in its first edition of
1966) when studying international law at the University of Adelaide in
1968. My undergraduate lecturer, DP O’Connell, was less than pleased
to see me carrying the ‘radical’ Brownlie around in that year of student
unrest. In fact I had also bought (but did not carry around) O’Connell’s
much heavier work.
In 1972, I began a doctorate at Oxford. My supervisor was Brownlie, as I
had hoped. Despite expressing considerable reserve when I announced
that my doctoral subject was statehood (not one aspect but all of it), he
eventually warmed to the idea. I realize once again, in reviewing closely
the relevant chapters of the 7th edition, how much I owe the ‘insights’ of
that thesis to Principles.
It was thus both an honour and a responsibility to be asked to undertake
the 8th edition of Principles, following Ian’s tragic death in January 2010.1
It turned out to be a more difficult commission than I had thought. The
text was in need of an overhaul, and there were many new developments
to be taken into account. The Press stipulated that this all had to be done
within the same length as the 7th edition, so that for every insertion there
had to be an equal excision. While it has proved possible to preserve
much of Brownlie’s text and, I hope, the general spirit and tone of the
work, it proved necessary to engage not only in updating, but also in
some restructuring. A determined effort has been made to review the
footnotes so as to include the best recent literature of the subject, while
not losing sight of the literature of the period 1945–75 to which so much
reference was made in successive editions.
I am only too aware of the warning against ‘“ancestor worship” in textbook literature…the tyranny of mortmain’.2 There has been a cottage
industry of renovating texts,3 prompting calls for ‘another book, rather
4
than a new edition of this one’.4 Robert Jennings made the same
complaint of the 6th edition of Oppenheim,5before going on to co-edit the
9th. Whether the present effort was worth it is for others to judge; but in
my view Brownlie still speaks perceptively about international law as law,
about its systematic character, (p. xviii) about sovereignty as a value,
about the relations of nationality, and the implications of peremptory
norms outside the field of treaties, among many other things.
A more fundamental question is whether any single volume can account
in a meaningful way for the scope and content of modern international
law, or even cope with its general principles. The subject is now too large,
too diverse, too ramified to permit such treatment. We do not produce—
except for foreign audiences—single volume works on English law (still
less British) law. Why should international law be any different?
There are a number of answers. First of all, international law is still
normally studied as such, especially at first degree level. In studying it
students approach it as a foreign law, foreign at least to their experience
of law; many doubt that it could be law—though with every second
problem in our world an international one, they have no difficulty seeing
that it should be. It is a function of a single volume handbook, among
other things, to address both this ‘should’ and this ‘could’.
Secondly, international law has been and remains a system, based on
and helping to structure a system of relations among states and other
entities. Yet this systemic aspect is lost or obscured if one studies only
the law of the sea, the law of the environment, the law of human rights.
For these presume, and are configured by, the law of the land, the
anthropocene environment, the powers of states. The sea, the
environment would not be problems if not for ourselves and our
associations.
Thirdly, we need international law as a whole, not a set of parts attracting
differential affiliation or disrespect. Trade notoriously suffers in wars;
children suffer from misrule; the environment suffers from misguided
production because of subsidies. Things are connected. This is not to
suggest that international law is a universal solvent or solution. But it is
an indispensable method—the world being as it is—for exploring and
implementing solutions.
Note on the text
The first edition of Principles (1966) contained 26 chapters in 11 parts,
some parts consisting only of one or two chapters. Some new chapters
were later added, as follows: immunities (2nd edition), environmental law
(5th edition), international criminal law (6th edition), and the use or threat
of force by states (6th edition). In this edition I have restructured the parts
and chapters to some extent, while trying not to alter the overall
conception of the book as, first, an advanced text for students,
undergraduate and graduate, treating core issues from a lawyer’s
perspective, and secondly, a useful guide to the components of the
subject for scholars and practitioners. I have added an introduction and
rewritten certain chapters. Internal numbering of sections and subsections has been introduced. Cross-referencing is to chapters only and
each chapter is as far as possible self-contained (at the expense of a
limited amount of duplication between chapters). Instead of crossreferencing, there is a very full index.
Despite these changes, the text of the 8th edition is still essentially
Brownlie’s. But I have not hesitated to modify it where this seemed to be
appropriate in the interests of clarity, concision, current priorities, or the
need to reflect developments. The danger of editions of (p. xix) classic
texts (both Brierly and Oppenheim are examples) is that they atrophy by
interpolation, become encrusted. The other strategy—the assumption of
ownership of the text— seems to me the only course, while preserving a
decent respect for the original author’s known views. Otherwise one ends
up with a text which no-one—author or editor—can be held to accept or
believe. In our online days—the days of the splendidly recursive Max
Planck Encyclopedia—we need not more detail, more fragments, but a
coherent account of the core. That is what Principles always promised.
For this attempt at fulfilling the promise I take full responsibility.
***
Acknowledgements
My thanks are due to the institutions and the many people within them
who made this edition possible: to the Lauterpacht Centre for
International Law under its Director, Professor Marc Weller; to my
associates at LCIL who assisted with this project (notably Tiina Pajuste,
Juliette McIntyre, Cameron Miles, Anna Cowan, and Rumiana Yotova),
and to the Cambridge graduate cohort of 2010–11 who spent many hours
checking references and gathering materials for the revision. They were:
Daniel Barton, Fernando Bordin, Sophie Chapman, Daniel Costelloe,
Riddhi Dasgupta, Michail Dekastros, Berk Demirkol, Ali El-Haj, Henner
Goett, Caroline Henckels, Luis Jardón Piña, Jonathan Ketcheson,
Apurba Khatiwada, Belinda McRae, Jasmine Moussa, Thang Nguyen
Dang, Agnieszka Paszcza, Kate Purcell, Cecily Rose, Andrew Sanger,
Geraldo Vidigal Neto, and Helen Worsnop.
Individual chapters, once completed in draft, were read by colleagues
and friends, whose help and suggestions I greatly appreciate. They were:
Pierre Bodeau-Livinec, Rodman Bundy, William Butler, Matthew Craven,
John Crook, Zachary Douglas, John Dugard, Malcolm Evans, Malgosia
Fitzmaurice, Guy Goodwin-Gill, Tom Grant (multiple chapters), Christine
Gray, Douglas Guilfoyle, Kaj Hober, Ben Juratowitch, Jan Klabbers,
Pierre Klein, Martti Koskenniemi, Stephen McCaffrey, John Merrills,
Sarah Nouwen (multiple chapters), Roger O’Keefe, Simon Olleson
(multiple chapters), Alain Pellet, Philippe Sands, Danesh Sarooshi,
William Schabas, Nico Schrijver, Malcolm Shaw, Ivan Shearer, Bruno
Simma, Stefan Talmon, Christian Tams, Tullio Treves, Colin Warbrick,
and Xiaodong Yang. The illustrative map of maritime zones in
chapter 12 I owe to Dr Robin Cleverly, Head, UK Hydrographic Office,
Taunton, with whom I have spent many happy cartographic hours.
At Oxford University Press I must thank Jacqueline Senior, John Louth,
and Helen Davis.
The text is, as far as possible, current as at 1 January 2012. All websites
cited were current on that day. Opportunity was taken to add references
to a few major developments between January and June 2012.
JRC
Lauterpacht Centre for International Law
University of Cambridge
1 June 2012
Footnotes:
1
A biographical memoir of Brownlie is in British Academy,
XI Biographical Memoirs (in press). See also Owada (2010)
81 BYIL 1; Lowe, ibid, 9
2
J M[ervyn] J[ones] (1944) 21 BY 242, 243
3
On the British textbook tradition: Crawford, in Beatson & Zimmermann
(eds), Jurists Uprooted. German-speaking Emigré Lawyers in Twentieth
Century Britain (2004) 681.
4
Warbrick (2000) 11 EJIL 621, 632. I am indebted to this best of
Brownlie reviews, and have taken much of its advice.
5
RY J[ennings] (1947) 24 BYIL 512, 513
Preface to the Seventh Edition
Changes have occurred in many areas of the law since the last edition of
this book. Care has been taken to renovate the treatment of a number of
topics, including jurisdictional immunities, the responsibility of states,
indirect expropriation, international criminal justice and informal
extradition.
At the same time, the procedure of renovation has been accompanied by
certain inhibitions stemming from the inherent nature of a single volume
treatment of the principles of public international law. The temptation to
include a detailed treatment of recent complex events (the invasion and
occupation of Iraq, for example) has been resisted. To deal adequately
with such events would involve excursions well beyond the ambit of a
legal handbook. If the situation of Iraq be taken as an example, the
limitations can be seen immediately. In the first place, the determination
of the material facts would involve considerable difficulty. Secondly, there
is the central problem which is the tendency of the State actors to adopt
convenient suppositions of fact, this tendency leading to the risk of
positing a State practice based upon fiction.
The recent episodes of unilateralism have usually involved law-breaking
rather than the development of the law, and it is inappropriate to appear
to characterise law-breaking actions as ‘precedents’ or ‘practice’. The
book continues to present an analysis of the principles of public
international law when the law is being applied in a framework of
normality.
The new text reflects the substantial case law of the International Court of
Justice and the recent work of the International Law Commission.
I would thank the Hague Academy of International Law and Mr Steven
van Hoogstraten for his permission to make use of some passages of my
General Course delivered in 1995 and published by the Academy under
the title The Rule of Law in International Affairs (pp. 65–74) in 1998. I
would also like to thank the staff of Oxford University Press, and in
particular Rebecca Gleave and Rekha Summan, for their care and
consideration. I am grateful for assistance received from Lavonne Pierre
and Adam Sloane of Blackstone Chambers.
Finally, my thanks go to my wife for her assistance.
IAN BROWNLIE, Q.C.
Blackstone Chambers
Temple
2008
Table of Treaties
Act Concerning the Punishment of Grave Breaches of
International Humanitarian Law 1999 (Belgium) 688
African Charter on Human and Peoples’ Rights 1981 640, 644
Art 11 665
Art 12 665
Arts 19–24 662
Art 20(1) 647
Art 27(2) 665, 666
Art 50 664
Art 56(5) 664
Agreement concerning Interim Arrangements relating to
Polymetallic Nodules of the Deep Seabed 1982 328
Agreement establishing the World Trade Organization 1994 358
Agreement on the Resolution of Practical Problems with Respect
to Deep Seabed Mining Areas 1987 328
Agreement relating to the Implementation of Part XI 1994 328
American Convention on Human Rights 1969 640, 644
Art 1 651
Arts 3–6 666
Art 9 666
Art 12 666
Arts 17–20 666
Art 23 666
Art 27 666
Art 46(1)(a) 664
Arts 52–69 661
Antarctic Treaty 1959
Art IV 220, 252, 345
Art VI 345
Art VIII(1) 460
Protocol on Environmental Protection 1991 346
Articles on Diplomatic Protection 2006 509, 539, 607, 612, 701
Art 4 516–18
Art 5 437, 516, 702–3
Arts 6–7 710
Art 9 707
Art 10 703
Art 11 709
Art 12 708
Art 14 612, 711, 713
Art 15 612, 711, 713–14
Art 17 717
Art 18 532, 702
Articles on Responsibility of States for Internationally
Wrongful Acts 2001 44, 539–40, 566, 572, 616, 758
Art 2 542, 557
Art 3 51, 519
Art 4 543, 547, 558, 629
Art 5 544
Art 6 555
Art 7 549
Art 8 545
Art 10 119, 552
Art 11 442, 555
Art 12 542, 568, 593
Art 14 555
Art 16 555
Arts 20–25 563
Art 21 586
Art 22 586
Art 31 573
Art 32 519
Art 34 569
Art 35 569, 571
Art 36 571, 573
Art 37 574–5, 577
Arts 40–41 578–80, 592, 598, 600, 603
Art 41(2) 155, 602
Art 42 581, 584–5
Art 45 700
Art 47 554, 575
Art 48 330, 579, 584–5, 592
Art 49 588
Art 50(2)(b) 403
Art 52(1) 587
Art 54 588, 592
Art 55 568
Association of South-East Asian Nations Investment Guarantee
Agreement 1987 741
Australia–Nauru Settlement 1993 554
(p. xxii) Barcelona Convention and Statute on the Regime of
Navigable Waterways of International Concern 1921 339
Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal, 1989, Art 6 362
Biological Diversity Convention 1992 356, 358
Art 6 364
Art 8 364
Charter of the United Nations 1945 13, 31, 565, 644
Ch VI 718
Ch VII 304, 718
Art 1 634
Art 1(1) 593
Art 1(2) 141
Art 2 746
Art 2(1) 452
Art 2(3) 718
Art 2(4) 389, 718, 746–7, 752, 754, 756
Art 2(5) 168
Art 2(6) 191, 385
Art 2(7) 190, 452–4
Art 4 146
Art 10 168
Art 13(1)(a) 44
Art 14 386
Art 15 283
Art 17(2) 186, 452
Art 24(1) 758
Art 24(2) 593, 762
Art 25 168, 758–9, 763
Art 27(3) 14, 195
Art 28 758
Art 33 718
Art 36 725
Art 36(3) 593
Art 39 14, 185, 189, 756, 759–60, 762
Art 40 600, 762
Art 41 186, 189, 600, 762–4
Art 42 14, 189, 756, 762, 764–6
Art 43 168
Art 51 747–51, 754, 756, 761, 766, 771
Art 52(1) 767
Art 55 141, 634
Art 56 634
Art 57 180
Art 62 634
Art 63 180
Art 68 634
Art 76 634
Art 81 190
Art 92 722
Art 93 722
Art 94 78, 724
Art 94(2) 229
Art 96 730
Art 96(1) 185
Art 100 14
Art 102 374
Art 103 73, 378, 758, 763
Art 104 14, 167–8
Art 105 14, 168, 172
Art 105(3) 180
Art 108 386
Art 109 386
Comprehensive Nuclear Test Ban Treaty 1995 (CTBT) 335–6
Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances 1988 (Narcotics Convention)
Arts 3–8 314
Art 8(7) 315
Art 17 314
Convention against the Recruitment, Use, Financing and Training
of Mercenaries 1989, Art 9(2) 470
Convention against Transnational Organized Crime 2000, Art
15(4) 470
Convention between France and Great Britain for Defining the
Limits of Exclusive Fishing Rights 18 39 219
Convention between Great Britain, Japan, Russia and the United
States Requesting Measures for the Preservation and Protection
of Fur Seals in the North Pacific Ocean 1911 299
Convention concerning Certain Questions Relating to the Conflict
of Nationality Laws 1930
Art 1 511
Art 14 512
Convention for the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter 1972 363
Convention for the Protection of All Persons from Enforced
Disappearance 2006, Art 9(2) 641
Convention for the Protection of Submarine Cables 1884, Art
10 311
(p. xxiii) Convention for the Protection of the Marine Environment
of the North-East Atlantic 1992 (OSPAR Convention) 363
Convention for the Regulation of Aerial Navigation 1919, Arts 5–
10 533
Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation 1971, Art 5 470
Art 14(1) 695
Convention for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation 1988 461
Art 6(4) 470
Convention for the Suppression of Unlawful Seizure of Aircraft
1970 (Hague Convention), Art 4 470
Convention on Early Notification of a Nuclear Accident 1986 364
Convention on International Civil Aviation 1944 (Chicago
Convention) 160
Arts 17–21 533
Convention on International Liability for Damage Caused by Space
Objects 348
Art II 561
Art III 561
Art XXII(3) 182, 184
Convention on International Trade in Endangered Species of Wild
Fauna and Flora 1973 (CITES), Art 2(1) 361
Convention on Nuclear Safety 1994 334
Convention on Offences Committed on Board Aircraft 1963 (Tokyo
Convention) 533
Art 3 466
Art 4 461, 466
Convention on Registration of Objects Launched into Outer Space
1974 348
Convention on the Conservation and Management of Fishery
Resources in the South East Atlantic Ocean 2001 323
Convention on the Conservation and Management of Highly
Migratory Fish Stocks in the Western and Central Pacific Ocean
2000 737
Convention on the Conservation of Antarctic Marine Living
Resources 1980 346
Convention on the Conservation of Antarctic Seals 1972 346
Convention on the Elimination of All Forms of Discrimination
against Women 1979 (CEDAW) 511, 645, 658
Convention on the Law of Non-Navigational Uses of International
Watercourses 1997 340, 364
Convention on the Nationality of Married Women 1957 511
Convention on the Physical Protection of Nuclear Material 1980,
Art 8(2) 470
Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents
1973, Art 3(2) 470
Convention on the Protection and Use of Transboundary
Watercourses and Lakes 1992 338, 364
Convention on the Protection of the Underwater Cultural Heritage
2001 737
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards 1958 (New York Convention)
Art III 61
Arts III–V 743
Convention on the Reduction of Statelessness 1961
Art 2 512
Art 3 511
Art 8 522
Convention on the Safety of Spent Fuel and Radioactive Waste
Management 1997 334
Convention on the Safety of United Nations and Associated
Personnel 1994, Art 10(4) 470
Convention on the Settlement of Investment Disputes between
States and Nationals of Other States 1965 (ICSID
Convention) 742
Art 25(2)(b) 529, 716
Art 26 715
Art 53 61
Art 54 61, 743
Convention on the Suppression of Unlawful Acts Relating to
International Civil Aviation 2010 466
Art 8(3) 470
Convention on the Transboundary Effect of Industrial Accidents
1992 364
Convention on the Transit Trade of Landlocked States 1965 344
Convention Regarding the Regime of Navigation on the Danube
1948 339
Convention Relating to Intervention on the High Seas in Cases of
Oil Pollution Casualties 1969 312
(p. xxiv) Convention Relating to the Status of Stateless Persons
1954, Art 16(3) 526
Convention to Suppress the Slave Trade and Slavery 1926 311
Covenant of the League of Nations 1919 13
Art IV 14
Art V 14
Art XII 14
Art XIII 14
Art XV 14
Art XV(8) 453
Art XVI 14, 764
Cuba–US Treaty 1903 249
Declaration of Lima 1970 276
Declaration of Paris 1856 31
Declaration of Principles on Interim Self-Government
Arrangements 1993 (Oslo Accord) 139
Declaration of Santo Domingo 1972 276
Deep Seabed Hard Mineral Resources Act 1980 (USA) 328
Draft Articles on the Responsibility of International Organizations
2011 182–3, 539
Art 2 167, 171
Energy Charter Treaty 1994
Art 1(7) 529
Art 7 337
Art 26 336
Art 45(3)(a) 336
Espoo Convention on Environmental Impact Assessment in a
Transboundary Context 1991 346, 360
European Agreement for the Prevention of Broadcasts
Transmitted from Stations outside National Territories 1965 457
European Convention on Human Rights and Fundamental
Freedoms 1950 (ECHR) 66, 375, 640, 644
Art 1 651–2, 660
Art 2 652, 666–7
Art 3 660, 666–7
Art 4(1) 660, 666
Art 5 74, 667
Art 6 58, 505
Art 7 660, 666
Art 7(2) 34
Art 8 97, 665, 667
Art 13 667, 714
Art 15 74, 662, 665
Art 17 660
Art 26 60
Art 35(1) 165, 663, 716
Protocol 1, Art 1 666
European Convention on Nationality 1997, Art 3 511
European Convention on State Immunity 1972
Art 1 495
Art 2 492, 501
Art 3 501
Art 6 498
Art 7(1) 495
Art 8 498
Art 9 497
Art 10 497
Arts 10–17 489
Art 11 497
Art 15 489
Art 28 492
European Energy Charter 1991 336
Exchange of Notes between the United States and the Parties to
the Agreement 1987 328
Fishery Conservation and Management Act 1976 (USA) 276
General Act for the Repression of the Slave Trade 1890 311
General Agreement on Tariffs and Trade 1994 (GATT)
Art V 325
Art XX 325
Art XXIII 738
General Treaty for the Renunciation of War 1928 31
Geneva Convention 1922 570
Geneva Conventions 1949 31, 468
I Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field
Art 3 654
Art 49 470
Art 50 674
II Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea
Art 3 654
Art 50 470, 674
Art 51 674
(p. xxv) III Relative to the Treatment of Prisoners of War
Art 3 654
Art 125 125, 470
Art 129 674
Art 130 674
IV Relative to the Protection of Civilian Persons in Time of
War
Art 3 654
Art 146 470, 674
Art 147 674
Additional Protocol I 123
Art 91 546
Geneva Convention on the Continental Shelf 1958 (GCCS) 26
Arts 1–3 271
Art 2(4) 272
Art 5 273
Art 5(1) 272
Art 6 27, 45, 285–7
Art 7 273
Geneva Convention on the High Seas 1958 (GCHS)
Art 1 296
Art 2 299, 326
Art 3 344
Art 5 301, 531
Art 6(1) 312
Art 11 25
Art 15 302
Art 19 303
Art 22(1) 307
Art 23 310, 311
Arts 26–29 311
Geneva Convention on the Territorial Sea and Contiguous Zone
(GCTS)
Art 2 256
Art 3 257
Art 4 259
Art 4(3) 263
Art 7 259
Art 7(2) 261
Art 7(4) 261
Art 10 251, 262, 264, 295
Art 11 263
Art 12(1) 261, 283
Art 13 259
Art 14 265, 317
Art 15 317
Art 21 255
Art 24 265, 267
Art 24(1) 268
Geneva Convention Relating to the Status of Refugees 1951
Art 1 641
Art 16(3) 526
Genocide Convention 1948 (Convention on the Prevention and
Punishment of the Crime of Genocide)31, 145, 250, 375, 542, 641
Art VI 468
Art IX 695
Hague Convention for the Pacific Settlement of International
Disputes 1899 31, 719, 733
Hague Convention IV for the Pacific Settlement of International
Disputes 1907 31–2, 46, 468, 719
Art 3 546
Havana Convention on Asylum 1928 404
Helsinki Final Act 1975 642
Arts 3, 4 242
ILO Convention 169 Concerning Indigenous and Tribal Peoples in
Independent Countries 1989 649
Inter-American Treaty of Reciprocal Assistance 1947 769
International Agreement for the Regulation of Whaling 1938 355
International Convention Against the Taking of Hostages 1979 470
International Convention for the Prevention of Pollution from Ships
1973 346, 363
International Convention for the Regulation of Whaling 1946
(ICRW) 19
Art VIII(1) 326
Protocol 1956 326
International Convention for the Suppression of Acts of Nuclear
Terrorism 2005 Art 9(4) 470
International Convention for the Suppression of Counterfeiting
Currency 1929, Art 9 470
International Convention for the Suppression of Terrorist Bombings
1997 Art 6(4) 470
International Convention for the Suppression of the Financing of
Terrorism 1999 Art 7(4) 470
International Convention on the Elimination of All Forms of Racial
Discrimination 1965 (ICERD) 522, 645
(p. xxvi) Art 1(4) 646
Art 22 695, 696
International Court of Justice Statute 1945 (ICJ Statute)
Art 34 718
Art 38 21–3
Art 38(1)(c) 34–7, 59
Art 38(1)(d) 37, 41
Art 38(2) 45
Art 59 22, 25, 37, 38
International Covenant on Civil and Political Rights 1966
(ICCPR) 80, 522, 609, 638, 644, 658, 667
Art 1 141, 649
Art 1(1) 647
Art 1(2) 651
Art 2(1) 639, 653
Art 26 522
Art 27 648–50
International Covenant on Economic, Social and Cultural Rights
1966 (ICESCR) 638, 644, 658
Art 1 141, 649
Art 1(1) 647
Art 1(2) 651
Art 2(1) 639
Art 8 639
Art 15 651
International Criminal Court Statute 1998 (Rome Statute) 468
Art 2(2) 482
Art 4(1) 169
Art 8bis 593, 761
Art 12(2) 679
Art 12(2)(a) 385
Art 13 680
Art 13(b) 764
Art 17 13
Art 27 501, 682
Art 53(1)(c) 681
Art 98(2) 681
International Telecommunications Satellite Organization
Agreement 1971 350
Iran–USSR, Treaty concerning the Settlement of Frontier and
Financial Questions 1954 297
Iran–USSR, Treaty of Establishment, Commerce and Navigation,
Arts 14, 15 297
Italian Peace Treaty 1947 424, 434
Art 11 211
Art 12 570
Art 14 211
Art 37 570
Art 78 570
Annex VI 249
Annex XIV 570
Jay Treaty 1794 (Treaty of Amity, Commerce, and Navigation (GBUSA)) 734
Kyoto Protocol 1997 see UN Framework Convention on Climate
Change
Minorities Treaty 1919, Art 4 433
Montevideo Convention on Rights and Duties of States 1933 128
Art 6 144
Montreal Protocol on Substances that Deplete the Ozone Layer
1987 18
Niue Treaty on Cooperation in Fisheries Surveillance and Law
Enforcement in the South Pacific Region 1992 311
North American Free Trade Agreement 1994 (NAFTA) 617
Art 1105 608
Art 1105(1) 614
Art 1117(1) 529
Art 1135(2) 529
Organization of American States Charter 1948 (OAS) 33, 189, 661
Oslo Accords 1993 (Declaration of Principles on Interim SelfGovernment Arrangements) 136
Panama Canal Treaty 1977 341
Partial Test Ban Treaty 1963 335
Persia–Russian Socialist Federal Soviet Republic, Treaty of
Friendship 1921, Art 11 297
Preservation of Fauna and Flora in their Natural Habitat
Convention 1936 355
Protection of Migratory Birds and Game Mammals Convention
1937 (USA-Mexico) 355
Protocol for the Suppression of Unlawful Acts against the Safety of
Fixed Platforms Located on the Continental Shelf 1988, Art
3(2) 470
(p. xxvii) Provisional Understanding Regarding Deep Seabed
Matters 1984 328
Rio Treaty 1947 (Inter-American Treaty of Reciprocal Assistance)
Art 3 769
Art 6 769
Art 8 769
Roosevelt–Litvinov Agreement 1933 151
Santiago Declaration 1952 285
State Treaty 1955 (Austria), Art 4 210
Statute of the International Criminal Tribunal for Rwanda 1994
(ICTR Statute) 676–7, 683
Statute of the Permanent Court of International Justice 1920
Art 2 722
Art 3(1) 722
Art 9 722
Art 11 723
Art 12 723
Art 16(1) 722
Art 17 722
Art 18(1) 722
Art 19 722
Art 31 723
Art 32 722
Art 36 725
Art 36(1) 726
Art 36(2) 726
Art 38(1) 728
Art 38(2) 728
Art 37 725
Art 41 725
Art 65 731
Art 65(1) 730
Art 68 730
Art 79(9) 724
Statute of the River Uruguay 1975 343
Stockholm Conference, Declaration on the Human Environment
1972 334
Stockholm Convention on Persistent Organic Pollutants 2001 346
Straddling Stocks Agreement 1995
Art 21 324
Art 23 465
Art 63 323
Art 63(2) 321–2
Supplementary Convention on the Abolition of Slavery, the Slave
Trade, and Institutions and Practices Similar to Slavery 1956 311
Torture Convention 1984 (Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment) 461, 468, 641, 658
Art 5(2) 470
Treaty concerning Pacific Salmon 1985 (Canada-USA) 323
Treaty establishing the European Economic Community 1957
(EEC Treaty) 95
Treaty of Friendship 1918 (France-Monaco), Art 3 206
Treaty of Guarantee 1960 (Cyprus), Art IV595
Treaty of Lausanne 1923, Art 16 246
Treaty of Limits 1858 (Costa Rica-Nicaragua), Art VI 338
Treaty of London 1841 (London Straits Convention) 311
Treaty of Paris 1947 See Italian Peace Treaty434
Treaty of Peace with Japan 1951
Art 2 229, 250
Art 3 207
Treaty of Peace, St Germain-en-Laye 1919 311, 424, 434
Art 88 210
Arts 89–91 228
Art 249 519
Art 256 519
Treaty of Peace, Trianon 1920 (Hungary) 434
Art 250 530
Treaty of Peace, Versailles 1919 (Germany) 135, 341
Arts 100–108 118
Art 308 450
Art 380 342
Treaty of Trade and Navigation 1958 (USSR–PRC), Art 4 504
Treaty on European Union 1992 (Treaty of
Maastricht) 89, 106, 525
Art 8(1) 524
Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and other
Celestial Bodies 1967 (Outer Space Treaty) 348, 460
Art 1 351
Art 2 351
Art 3 347, 349
Art 4 349
Art 6 350
Arts 6–9 349
(p. xxviii) Art 8 534
Art 13 350
Treaty on the Basis of Intra-German Relations 1973 137–8
Treaty on the Final Settlement with Respect to Germany 1990, Art
1 229
Treaty on the Functioning of the European Union 2007
(TFEU) 133, 524
Art 54 529
Art 335 192
Art 351 378
Treaty on the Non-Proliferation of Nuclear Weapons 1968
(NPT) 335
Treaty Relating to Co-operative Development of the Water
Resources of the Columbia River Basin (Canada–USA) 1961 338
Treaty to Combat Illicit Drug Trafficking at Sea 1990 (SpainItaly) 314
Treaty with Respect to Walvis Bay and the offshore Islands 1994
(South Africa-Namibia) 228
UN Charter see Charter of the United Nations
UN Convention on the Conditions of Registration of Ships
1986 464, 531
UN Convention on the Jurisdictional Immunities of States and their
Property 2004 490
Art 2 493–4
Art 2(1) 495–6
Art 5 489
Art 7 501
Art 8 501
Art 9 495
Art 12 497
Art 13 497
Art 14 498
Art 15 498
Art 18 502
Art 19 502
Art 20 503
Art 21 503
UN Convention on the Law of the Sea 1982 (UNCLOS) 31, 33
Pt V 25
Pt VI 300
Pt VII 300, 307
Pt X Arts 124–32 344
Pt XI 300
Art 1(1) 737
Art 2 251, 255
Art 3 24, 256–7, 260
Art 5 257
Art 7(2) 259
Art 7(4) 263
Art 9 259
Art 10 259
Art 10(2) 261
Art 10(4) 261
Art 12(3) 262
Art 13 263
Art 15 261, 283, 284
Art 17 24, 265, 317
Art 18(2) 318
Arts 18–22 317
Art 21(1)(a) 320
Art 21(1)(f ) 320
Art 25 317–18
Art 26 317
Art 27(1) 318
Art 27(1)(d) 313
Art 28 318
Art 30 317
Art 32 319
Art 33 265–8
Arts 36–39 319
Arts 46–54 264
Art 52 320
Art 53(1) 320
Art 53(12) 264
Art 55 265, 271
Arts 55–75 276
Art 56 267, 269, 294, 300
Art 56(1) 276
Art 56(3) 277
Art 57 300
Art 58 294, 300
Art 59 278
Art 60 273, 277
Art 61 267, 278
Art 62 278–9
Art 63 323
Art 63(2) 321
Art 64 277, 322–3
Art 66 322
Art 67 322
Art 68 279
Art 69 278
Art 70 278–9
Art 71 279
Art 73 267, 279
(p. xxix) Art 74 293
Art 74(3) 343
Art 76 274, 292
Art 76(5) 274
Art 76(8) 274, 292
Art 77 271
Art 77(4) 272
Art 78 294
Art 78(1) 271
Art 79 24, 272, 294
Art 80 273
Art 81 272
Art 82 327
Art 83 293
Art 83(1) 286–7
Art 83(3) 343
Art 83(4) 286
Art 85 273
Art 86 265, 271, 276, 296
Art 86(1) 299
Art 87 24, 276, 298–9
Art 87(1) 301
Art 87(1)(e) 321
Arts 88–115 300, 319
Art 91 301, 534
Art 91(1) 531
Arts 91–94 464
Art 92(1) 312
Art 94(1) 268
Art 94(2) 268
Art 95 307
Art 96 307
Art 97 25
Art 97(1) 312
Art 100 251
Art 101 251, 302, 304
Art 101(a) 305
Art 102 303
Art 105 251, 303
Art 107 308
Art 108(1) 313
Art 108(2) 313, 316
Art 109 313
Art 109(4) 308
Art 110 301, 307, 313, 560
Art 110(1)(d) 308
Art 110(2)–(5) 308
Art 111 310
Art 116 321
Art 117 322
Art 118 322–3
Art 121(1) 262
Art 121(2) 295
Art 121(3) 295
Art 125 344
Art 134 327
Art 135 327
Art 137 327
Art 139(2) 330
Art 140 327–8
Art 142 327
Art 144 328
Art 148 328
Art 149 327
Art 150 327–8
Art 152 328
Art 153 327
Art 156 327
Art 157 327
Art 159(1) 737
Art 160 328
Art 176 169
Art 187 737
Art 191 737
Art 192 267, 363
Art 209(2) 330
Art 211 268
Art 218 465
Art 220 268
Art 287 734, 736–7
Art 287(1) 697, 735–6
Art 288 736
Art 310 260
Art 311(2) 312
Annex VII 735
Annex VIII 735
UN Framework Convention on Climate Change 1992
(UNFCCC) 356, 358, 362–3
Kyoto Protocol 362–3
UNCITRAL Arbitration Rules 2010 733
Unification Treaty 1990 89
Universal Declaration of Human Rights 1948 636
Art 15(2) 522
Vienna Convention for the Protection of the Ozone Layer 1985 18
Art 2 361
Art 7 361
Art 10 361
(p. xxx) Vienna Convention on Consular Relations 1963
(VCCR) 117, 549, 571
Art 31 412
Art 32 412
Art 33 413
Art 36 78
Art 36(1)(b) 413
Art 40 413
Art 41 413
Vienna Convention on Diplomatic Relations 1961 (VCDR) 395
Art 1 399, 403
Art 2 396
Art 3 398
Art 4(1) 400
Art 4(2) 400, 401
Art 5(1) 401
Art 7 400, 401
Art 8 401, 526
Art 9 399
Art 9(1) 401
Art 11 399, 401
Art 13 400
Art 14(1) 400
Art 14(2) 400
Art 19 402
Art 22 402
Art 22(1) 403
Art 22(2) 403
Art 24 403
Art 25 402
Art 26 402
Art 27(1) 402
Art 29 414
Art 33(2)(a) 526
Art 36 24
Art 38 526
Art 39(3) 401
Art 39(4) 401
Art 41 398
Art 44 401
Art 45 401
Vienna Convention on the Law of Treaties 1969 (VCLT) 179, 367
Art 1 369
Art 2 372, 374
Art 2(1)(a) 369
Art 3 369
Art 4 368
Art 7(2) 372
Arts 7–11 371
Art 10 372
Arts 11–17 373
Art 14 227, 373
Art 18 372
Art 22 404
Art 22(3) 405
Art 23 409
Art 24 404, 405
Art 24(2) 373
Art 26 377
Art 27 51, 377, 405
Art 27(2)–(4) 404
Art 27(3) 187
Art 28 378
Art 29 378, 404, 406
Arts 29–36 409
Art 30 378, 404
Art 31 65, 100, 379–82, 407, 451
Art 31(1) 187, 406, 407
Art 31(2) 382
Art 31(3) 382, 404, 407
Art 31(3)(b) 187
Art 31(3)(c) 383
Arts 31–33 23
Art 32 65, 100, 383–4, 411
Art 32(2) 410
Art 32(3) 410
Art 32(4) 411
Art 34 409
Arts 34–38 384
Art 35 385
Art 36 386
Art 37 409
Art 37(2) 386
Art 38(1) 408
Art 39 410
Art 39(2) 408, 410
Arts 39–41 386
Arts 40–41 21
Art 41 386
Art 41(1) 404, 406
Art 42 377
Art 42(2) 387
Art 44 394
Art 46 51, 388
Art 48 388
Art 49 388
Art 50 388
Art 51 35, 389, 394
(p. xxxi) Art 52 35, 389
Art 53 23, 389, 579, 594
Art 54 390
Art 55 21
Art 56 390
Art 58 21
Art 59 21, 378
Art 60 392
Art 60(1) 21
Art 62 393
Art 64 389, 579
Arts 69–72 394
Art 70 21
Art 73 387
Art 75 385
Art 76 374
Art 77 374
Vienna Convention on Succession of States in Respect of
Property Archives and Debts 1983 424, 430
Art 2(1)(e) 432
Arts 36–41 432
Vienna Convention on Succession of States in Respect of Treaties
1978 424, 438
Art 10 441
Art 11 439–40
Art 12 439–40
Arts 17–23 441
Arts 18–20 442
Art 31 441
Arts 31–33 439
Table of Cases
A v Secretary of State for the Home Department (No 2) [2005]
UKHL 71; [2006] 2 AC 221 66, 67, 69, 72, 74
A v UK [1998] ECtHR 25599/94 552
AB v MB (1951) 17 ILR 110 519
Aaland Islands (1920) LNOJ Sp Supp No 3 214
Abbasi v Foreign Secretary [2002] EWCA Civ 1598 209
Abbott v Republic of South Africa (1999) 113 ILR 411 396, 504
Abdulaziz, Cabales and Balkandali (1985) 81 ILR 139 646
Abdullahi v Pfizer Inc, 562 F3d 163 (2nd Cir, 2009) 83
Abebe-Jira v Negewo, 72 F.3d 844 (11th Cir, 1996) 83
Abu Dhabi (Petroleum Development Ltd v Sheikh of Abu Dhabi)
(1951) 18 ILR 144 631
Abyei Arbitration See Government of Sudan v Sudan People’s
Liberation Movement/Army
Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, Opinion of 22 July
2010 120, 140, 142, 150, 155, 195, 647, 761, 732
AD v Canada (1984) 76 ILR 261 649
Adams v Adams [1971] P 188 157, 159
ADC Affiliate Ltd and ADC & ADMC Management Ltd v Republic
of Hungary (2006) 15 ICSID Reports 534 743
Aderhold v Dalwigk, Knüppel, 2 BvR 1908/03, 24.10.2006 609
ADF v US (2003) 6 ICSID Reports 470 617
Administration des Douanes v Société Cafés Jacques Vabre
[1975] Rec Dalloz 497; (1975) 93 ILR 240 95
Aegean Sea Continental Shelf (Greece v Turkey), ICJ Reports
1978 p 3 218, 368, 694, 727
Aerial Incident of 27 July 1955 (Israel v Bulgaria), Preliminary
Objections, ICJ Reports 1959 p 127 38, 576
Aerolíneas Peruanas SA, Foreign Permit (1960) 31 ILR 416 530
Aérospatiale v District Court, 482 US 522 (1987)486
AES v Hungary, 23 September 2010619
African Development Bank (2005) 138 ILR 498 175
African Reinsurance Corp v Abate Fantaye (1986) 86 ILR 655 174
Agbor v Metropolitan Police Commissioner [1969] 2 All ER
707 406
AGIP v Government of the Popular Republic of Congo (1979) 67
ILR 318 632
Aguas del Tunari SA v Republic of Bolivia (2005) 16 ICSID
Reports 297 706, 717
Ahlbrecht, Re (SS Member) (1947) 14 ILR 196 460
Ahmadou Sadio Diallo (Guinea v Democratic Republic of the
Congo) Preliminary Objections, ICJ Reports 2005 p
582 27, 528, 529, 608, 709, 713, 714
Judgment, 30 November 2010 37, 38, 53, 54, 608, 610, 659
Compensation, Judgment of 19 June 2012 572, 577, 610
AIC Ltd v Federal Government of Nigeria [2003] EWHC 1357 496
AIG Capital Partners Inc v Republic of Kazakhstan [2006] 1 WLR
1420 490
AIG v Kazakhstan (2003) 11 ICSID Reports 7 623
Air Services Agreement of 27 March 1946 (US v France) (1978)
54 ILR 303; (1978) 18 RIAA 417 588, 712, 720
Air Transport Services Agreement (1963) 38 ILR 182 23
Airbus Industrie GIE v Patel [1999] 1 AC 119 472, 484
Aksoy v Turkey [1996] ECtHR 21987/93 667, 714
AKU (1956) 23 ILR 21 624
Al Maqaleh v Gates, 605 F.3d 84 (DC Cir, 2010) 209
Alabama, The, Moore, 1 Int Arb 653 24
ALB v Austrian Federal Ministry for the Interior (1922) 1 ILR
20 136
Alcan Aluminium Ltd v Ircable Corp (1983) 72 ILR 725 706
Alcom Ltd v Republic of Colombia [1984] AC 580 67, 491
(p. xxxiii) Alfred Dunhill of London Inc v Republic of Cuba, 425 US
682 (1976) 86, 87
Allgemeine Gold-und Silberscheideanstalt v Customs and Excise
Commissioners [1980] 2 WLR 555 624
Allianz SpA v West Tankers Inc (C-185/07) [2009] ECR I663 474, 485
Almeida de Quinteros and Quinteros Almeida v Uruguay (1983) 79
ILR 168 404
Almonacid Arellano v Chile, IACtHR C/154, 26 September
2006 569
Al-Adsani v UK (2001) 123 ILR 24 487, 488, 498, 499, 505
Al-Bihani v Obama, 590 F.3d 866 (DC Cir 2010) 79, 81, 82
Al-Jedda See R (Al-Jedda)
Al Jedda v UK [2011] ECtHR 27021/08 378, 547, 670
Al-Skeini See R (Al-Skeini)
Al-Skeini v UK [2011] ECtHR 55721/07 651, 667
AM Luther v James Sagor & Co [1921] 1 KB 456; [1921] 3 KB
532 75, 85, 159
Ambatielos (Greece v UK), Preliminary Objection, ICJ Reports
1952 p 28 728
Merits, ICJ Reports 1953 p 10 725
Ambatielos (Greece v UK) (1956) 23 ILR 306 699, 713
Ambrose Light, The (1885) 25 F 408 305
Amchem Products Inc v British Columbia Workers Compensation
Board (1993) 102 DLR (4th) 96 484
Amco Asia Corp v Republic of Indonesia (1990) 89 ILR
366 59, 60, 627
American Electric and Manufacturing Co (1905) 9 RIAA 145 564
American European Beth-El Mission v Minister of Social Welfare
(1967) 47 ILR 205 636, 645
American Intern Group Inc v Islamic Republic of Iran, 493 F.Supp
522 (DDC, 1980) 86
Aminoil (1982) 66 ILR 518 630
Amirov v Russian Federation (2009) CCPR/
C/95/D/1447/2006 667
Amnesty International v Sudan (2000) AHRLR 297 665
Amoco International Finance v Iran (1987) 83 ILR
500 570, 623, 625
Amoco Iran Oil Co v Iran (1982) 70 ILR 490 388
Amto v Ukraine, 26 March 2008 617
Andries, Re (1950) 17 ILR 109 435
Anglo-Chinese Shipping Co Ltd v US (1955) 22 ILR 982 554
Anglo-French Continental Shelf See Delimitation of the
Continental Shelf (UK/France)
Anglo-Iranian Oil Co (UK v Iran) Order of 5 July 1951, ICJ Reports
1951 p 89 725
Jurisdiction, ICJ Reports 1952 p 93 450, 630, 723, 727, 728
Anglo-Iranian Oil Co Ltd v SUPOR Co (1954) 22 ILR 23 625
Anglo-Norwegian Fisheries See Fisheries (UK v Norway)
Anna B v Union of Soviet Socialist Republics [1934] NJA 206 93
Anna, The (1805) 5 C Rob 373 256
Annette, The [1919] P 105 158
Antelope, The, 10 Wheaton 66 (1825) 307
Antonekov v Ukraine [2005] ECtHR 14183/02 665
Appeal relating to the Jurisdiction of the ICAO Council (India v
Pakistan), ICJ Reports 1972 p 46 368, 726
Applicability of Article VI, Section 22 of the Convention Immunities
of the United Nations on the Privileges and Nations, ICJ Reports
1989 p 177 173
Applicability of the Obligation to Arbitrate under Section 21 of the
United Nations Headquarters Agreement of 26 June 1947, ICJ
Reports 1988 p 12 51
Application of the Convention of 1902 governing the Guardianship
of Infants (Netherlands v Sweden), ICJ Reports 1958 p
55 53, 54, 457
Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia),
Provisional Measures, ICJ Reports 1993 p 325 593, 723, 760
Preliminary Objections, ICJ Reports 1996 p
595 145, 150, 371, 425, 440, 578
Merits, ICJ Reports 2007 p 43 43, 59, 380, 428, 440, 542–
4, 554, 558, 577, 584, 595
Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Croatia v Serbia), Preliminary
Objections, ICJ Reports 2008 p 412 39, 428, 440, 724
Application of the International Convention on the Elimination of All
Forms of Racial (p. xxxiv) Discrimination (Georgia v Russia),
Preliminary Objections, Judgment of 1 April
2011 584, 694, 695, 696
Application to Aliens of the Tax on Mortgagors’ Gains (1963) 44
ILR 149 621
Application to Enforce Admin Subpoenas Deces Tecum of the
SEC v Knowles, 87 F.3d 413 (10th Cir, 1996) 473
Arab Monetary Fund v Hashim (No 3) [1991] 2 AC 114 192
Arantzazu Mendi, The [1939] AC 256 58, 149
Arbitral Award Made by the King of Spain on 23 December 1906
(Honduras v Nicaragua), ICJ Reports 1960 p 192 36, 421
Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), ICJ
Reports 1991 p 53 380
Arbitration between Newfoundland and Labrador and Nova Scotia
Concerning Portions of the Limits of their Off shore Areas (2002)
128 ILR 425 35, 292
Archer Daniels Midland Co and Tate & Lyle v Mexico (2007) 146
ILR 440 565, 587, 625
Argentina-Chile Frontier (La Palena) (1966) 38 ILR 10; (1966) 16
RIAA 109 230, 233, 240, 720
Argentine Republic v Amerada Hess Shipping Corp, 488 US 428
(1989) 498
Argoud, Re (1964) 45 ILR 90 483
Arkansas v Tennessee, 246 US 158 (1918) 241
Armed Activities on the Territory of the Congo (New Application:
2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction
and Admissibility, ICJ Reports 2006 p
6 376, 578, 595, 597 371, 415
Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v Uganda), ICJ Reports 2005 p
168 26, 403, 414, 653, 479, 544, 572, 712, 746, 748, 749, 761, 769, 771
Armon v Katz (1976) 60 ILR 374 406, 410
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
v Belgium), ICJ Reports 2002 p 3302, 458, 461–
3, 487, 467, 469, 470, 476–8, 488–500, 571, 597, 687, 689
Arsia, The (1949) 16 ILR 577 526
Article 19 v Eritrea (2007) AHRLR 73 666
Ashtiani v Kashi [1987] QB 888 484
Asian Agricultural Products Ltd v Republic of Sri Lanka (1990) 106
ILR 416 368, 608, 742
Assets of Hungarian Company in Germany (1961) 32 ILR 565 624
Association of Lawyers for Peace v Netherlands, NJ (2002) No
217 108
Association Protestante (1966) 47 ILR 198 645
Asylum (Colombia/Peru), ICJ Reports 1950 p 266 28, 451, 510
Athens Maritime Enterprises Corp v Hellenic Mutual War Risks
Association (Bermuda) Ltd [1983] QB 647302, 303
Athinai, The (1942) 12 ILR 386 526
A-G v Associated Newspapers [1994] 2 AC 238 66
A-G v BBC [1981] AC 303 67
A-G v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 67
A-G v Nissan [1970] AC 179 72
A-G (Canada) v Attorney-General for Ontario and Others [1937]
AC 326 117
A-G (Israel) v Eichmann (1961) 36 ILR 5 136, 477, 483, 687
A-G (Israel) v El-Turani (1951) 18 ILR 164 209
Australia—Salmon (21.5), WT/DS18/RW, 18 February 2000 548
Austrian Citizen’s Compensation (1960) 32 ILR 153 700
Austrian Nationality (1955) 22 ILR 430 436
Austro-German Customs Union (1931) PCIJ Ser A/B No 41 135
Austro-German Extradition (1956) 23 ILR 364 436
Autocephalous Church of Cyprus v Goldberg and Feldman Fine
Arts Inc, 917 F.2d 278 (2nd Cir, 1990)162
Avena and Other Mexican Nationals (Mexico v US), ICJ Reports
2004 p 12 51, 78, 117, 380, 413, 549, 571, 585, 712
AY Bank Ltd (in liquidation), Re [2006] EWHC 830 430
Azinian v Mexico (1999) 5 ICSID Reports 272 617, 619, 628
Aziz v Aziz; HM The Sultan of Brunei intervening [2008] 2 All ER
501 397, 406, 491
Aziz v Republic of Yemen [2005] EWCA Civ 745 500
B (A child), Re [2003] 2 WLR 168 407
B v T (1957) 24 ILR 962 61
Babanaft International Co v Bassatne [1990] Ch 13 484
Badinter Commission (Conference on Yugoslavia)
(p. xxxv) Opinion 1 (1991) 92 ILR 162 128, 135, 152
Opinion 2 (1992) 92 ILR 167 239
Opinion 3 (1992) 92 ILR 170 239
Opinion 8 (1992) 92 ILR 199 152
Opinion 9 (1992) 92 ILR 203 424, 428
Opinion 10 (1992) 92 ILR 206 128, 145, 152
Opinion 12 (1993) 96 ILR 729 424
Opinion 14 (1993) 96 ILR 723 424, 430
Opinion 15 (1993) 96 ILR 733 424, 430
Baena-Ricardo v Panama, IACtHR C/72, 2 February 2001 664
Bakalian & Hadjithomas v Banque Ottomane (1965) 47 ILR
216 530
Baker v Carr, 369 US 186 (1962) 84, 85
Baltic Shipping v Translink [1995] 1 Lloyd’s Rep 673 484
Banca Carige v Banco Nacional de Cuba [2001] 3 All ER 923 75
Banco Nacional de Cuba v Chase Manhattan Bank, 658 F.2d 875
(2nd Cir, 1981) 87
Banco Nacional de Cuba v First National City Bank (1961) 35 ILR
2 625
Banco Nacional de Cuba v Sabbatino 376 US 398 (1964); (1964)
35 ILR 2 85, 86, 161, 625
Bancoult v Foreign Secretary [2008] UKHL 61 208
Bancoult v McNamara, 445 F.3d 427 (DC Cir, 2006); 549 US 1166
(2007) 84, 208
Bangladesh/Myanmar See Delimitation of the Maritime Boundary
between Bangladesh and Myanmar
Banin v Laviani and Ellena (1949) 16 ILR 73 226–8
Bank Bumiputra Bhd v International Tin Council (1987) 80 ILR
24 174
Bank Indonesia v Senembah Maatschappij & Twentsche Bank
(1959) 30 ILR 28 625
Bank of China v NMB LLC [2002] 1 WLR 844 484
Bank of Credit and Commerce International (Overseas) Ltd v Price
Waterhouse [1997] 4 All ER 108 492
Bank of Ethiopia v National Bank of Egypt and Liguori [1937] Ch
513 153
Banković v Belgium (2001) 123 ILR 94 383, 652, 653
Banks of Grisbadarna (Norway/Sweden) (1909) 11 RIAA
147 211, 218, 230, 382
Barbados v Trinidad and Tobago (2006) 139 ILR 449; (2006) 27
RIAA 214; (2006) 45 ILM 798 40, 269, 283, 288–90, 720
Barbie, 20 December 1985, JCP 1986 II 20655; (1988) 78 ILR
136; (1988) 100 ILR 330 56, 95, 687
Barbuit (1737) Cases t Talbot 281 62
Barcelona Traction, Light and Power Co Ltd (Belgium v Spain),
Second Phase, ICJ Reports 1970 p
3 36, 37, 39, 54, 477, 480, 486, 528, 531, 569, 583, 592, 595, 596, 607
Bari Institute v Jasbez (1977) 77 ILR 602 174
Barrandon v USA (1992) 113 ILR 464 496
Barrios Altos v Peru, IACtHR C/75, 14 March 2001 569
Basic Right to Marry (1971) 72 ILR 295 636
Batavian National Bank (1957) 26 ILR 346 704
Bayindir v Pakistan, 27 August 2009 617
BB v UK [2004] ECtHR 53760/00 579
Beagle Channel (1977) 52 ILR 93; (1977) 21 RIAA
53 203, 719, 720
Beaumartin v France (1994) 107 ILR 50 58
Beer and Regan v Germany [1999] ECtHR 28934/95 175
Behrami & Saramati v France, Germany & Norway [2007] ECtHR
71412/01, 78166/01 (GC) 546
Behring Sea Fisheries Arbitration (1893) 28 RIAA 263; (1893) 1
IELR 43; (1902) 9 RIAA 51 299
Bekker v Willcox (1923) 2 ILR 50 162
Belgian Linguistics (1968) 45 ILR 114 646
Belgium, France, Switzerland, UK & USA v Germany (Young Loan
Arbitration) (1980) 59 ILR 494 382, 720
Belilos v Switzerland (1988) 88 ILR 635 376
Benvenuti & Bonfant Srl v Government of the Popular Republic of
the Congo (1980) 67 ILR 345 632
Bernstein v NV Nederlandsche-Amerikannsche StoomvartMaatschappij, 210 F.2d 375 (2nd Cir, 1954)86
Bianchi, Re (1957) 24 ILR 173 464
Bidar (C-209/03) [2005] ECR I-2119 525
Bielinis, Matter of, 284 NYS.2d 819 (1967) 162
Billerbeck and Cie v Bergbau-Handel GmbH (1967) 72 ILR 69 162
Binder-Haas (1953) 20 ILR 236 704
Bittner, Re (1949) 16 ILR 95 460
Biwater Gauff v Tanzania, 24 July 2008 617
Black Sea See Maritime Delimitation in the Black Sea
(p. xxxvi) Blackburn v Attorney-General [1971] 2 All ER 1380 72
Blad v Bamfield (1674) 36 ER 992 (Ch) 62
Blake v Guatemala, IACtHR C/36, 24 January 1998 551
Bo Xilai, Re (2005) 128 ILR 713 489, 500, 689
Board of Trade v Owen [1957] AC 602 459, 462
Boedecker & Ronski, Re (1965) 44 ILR 176 210
Bogovic (1955) 21 ILR 156 703
Bolin, Re [1934] NJA 206; (1934) 7 ILR 186 93
Bolivar Railway Co (1903) 9 RIAA 445 553
Bonne & Company X v Company Y (1970) 69 ILR 280 406
Bonser v La Macchia (1969) 51 ILR 39 272
Border and Transborder Armed Actions (Nicaragua v Honduras),
ICJ Reports 1988 p 69 694
Boryk v de Havilland Aircraft Co, 341 F.2d 666 (2nd Cir, 1965) 473
Bosphorus v Ireland [2005] ECtHR 45036/98 199
Bosphorus v Minister for Transport (1996) 117 ILR 267 670
Bostadsrättsföreningen x 13 v Kingdom of Belgium [2009] NJA
905 93
Boumediene v Bush, 553 US 723 (2008) 209
Bouzari v Islamic Republic of Iran (2004) 128 ILR 586 498, 505
BP Exploration Co (Libya) Ltd v Government of Libyan Arab
Republic (1974) 53 ILR 297 570, 627, 630, 632
Bradley v Commonwealth of Australia (1973) 128 CLR 557 60
Branno v Ministry of War (1954) 22 ILR 756 169, 175
Brazil-British Guiana Boundary (1904) 11 RIAA 21 229, 230, 237
Brazilian Loans (1929) PCIJ Ser A No 21 53–5
Breard v Greene, 523 US 371 (1998) 60
Brehm v Acheson, 90 F.Supp 662 (SD Tex, 1950) 137
Bresciani (C-87/75) [1976] ECR 128 64
Brig Ann, The (1815) 1 Gallison’s US Cir Ct R 62 256
British Airways v Laker Airways [1985] AC 58 64
British Arab Commercial Bank plc v National Transitional Council
of the State of Libya [2011] EWHC 2274
(Comm) 58, 154, 157, 158
British Claims in the Spanish Zone of Morocco (1925) 2 RIAA
615 613, 615, 623
British Guiana-Venezuela Boundary (1899) 28 RIAA 331 231
British Nylon Spinners Ltd v ICI Ltd [1952] 2 All ER 780; [1954] 3
All ER 88 480
Broadbent v Organization of American States, 628 F.2d 27 (DC
Cir, 1980) 174
Brzak v United Nations, 597 F.3d 107 (2nd Cir, 2010) 79
Buck v Attorney-General [1965] Ch 745 486
Burger King v Rudzewicz, 471 US 462 (1985) 473
Burna v US, 240 F.2d 720 (4th Cir, 1957) 207
Buron v Denman (1848) 2 Ex D 167 74
Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888 75, 85
C (An infant), Re [1958] 2 All ER 656 410
Cadenhead (1914) 6 RIAA 40 557
Caglar v Billingham (1996) 108 ILR 510, 519 154, 159
Caire (1929) 5 ILR 146; (1929) 5 RIAA 516 545, 550, 556
Caisse Industrielle d’Assurance Mutuelle v Consul Général de la
République Argentine (1972) 45 ILR 381 408
Cakici v Turkey (23657/94) [1999] ECtHR 667
Cal v Attorney General (2007) 46 ILM 1022 222
Cameroon v Nigeria, See Land and Maritime Boundary
Cámpora, Re (1957) 24 ILR 518 42
Camuzzi International SA v Argentine Republic (2005) 16 ICSID
Reports 3 706, 717
Can v United States, 14 F.3d 160 (2nd Cir, 1994) 84
Canada Labour Code, Re (1989) 86 ILR 626 497
Canada v Cargnello (1998) 114 ILR 559 413
Canada v Employment Appeals Tribunal & Burke (1991) 95 ILR
467 496
Canadienne, The (1914) 6 RIAA 29 577
Canevaro (1912) 11 RIAA 397 613, 706, 709
Capitol Records Inc v Thomas, 579 F.Supp 2d 1210 (D Minn,
2008) 80
Caramba-Coker v Military Affairs Office of the Embassy of the
State of Kuwait [2003] All ER (D) 186 498
(p. xxxvii) Cargill Inc v Mexico (2009) 146 ILR
642 565, 587, 614, 625
Caribbean Sea See Territorial and Maritime Dispute between
Nicaragua and Honduras
Carl Zeiss Siftung v VEB Carl Zeiss, 293 F.Supp 892 (SDNY,
1968) 162
Carl Zeiss Siftung v Rayner and Keeler Ltd (No 2) [1967] AC 853;
(1967) 43 ILR 25 153, 158, 159
Carron Iron Co v Maclaren (1855) 5 HLC 416 480
Carthage, The (1913) 11 RIAA 457 576
Casablanca (1909) 11 RIAA 119 557
Castañeda Gutman v Mexico, IACtHR C/184, 6 August 2008 665
Castanho v Brown & Root [1981] AC 557 484
Castillo Páez v Peru, IACtHR C/24, 30 January 1996 664
Castle John and Nederlandse Stichting Sirius v NV Mabeco & NV
Parfin (1986) 77 ILR 537 303, 306
Cayuga Indians (Great Britain) v United States (1926) 6 RIAA
173 519
Cernograz and Zudich v INPS (1978) 77 ILR 627 228
Certain Criminal Proceedings in France (Republic of the Congo v
France), Provisional Measures, ICJ Reports 2003 p 102 488, 728
Certain German Interests in Polish Upper Silesia, Preliminary
Objections (1925) PCIJ Ser A No 6 37, 43, 59
Merits (1926) PCIJ Ser A No
7 38, 52, 54, 136, 149, 226, 371, 528, 562, 623, 625
Certain Norwegian Loans (France v Norway), ICJ Reports 1957 p
9 711, 727
Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary
Objections, ICJ Reports 1992 p 240353, 554, 699, 723
Certain Questions of Mutual Assistance in Criminal Matters
(Djibouti v France), ICJ Reports 2008 p
11753, 481, 488, 495, 500, 728
Chagos Islanders v Attorney General [2003] EWHC 2222 (QB) 71
Chagos Islanders v UK, ECtHR 35622/04 (pending) 208
Chamizal (1911) 11 RIAA 309 233, 240
Charan Lal Sahu v Union of India (1989) 118 ILR 451 636
Chase National Bank (1957) 26 ILR 463 704
Chassagnou v France [1999] ECtHR 25088/94 664
Chattin (1927) 4 ILR 248; (1927) 4 RIAA 282 543, 557
Cheall v Association of Professional Executive Clerical and
Computer Staff [1983] 2 AC 180 67
Chemical Weapons Deployment (Danger to Life), 77 BVerfGE 170
(1987); (1987) 106 ILR 389 106
Chevreau (1931) 2 RIAA 1113 545, 564
Chevron Corp and Texaco Petroleum v Ecuador, 30 March
2010 420, 619
Chiger v Chiger (1926) 3 ILR 26 162, 163
Christian & Ors v R [2007] 2 WLR 120 481
Christian v R [2006] UKPC 47 226
Chuidian v Philippines, 912 F.2d 1095 (9th Cir, 1990) 494
Chung Chi Cheung v R [1938] 4 All ER 786 70
Church of Scientology (1978) 65 ILR 193 493
Cia de Transportes de Gelabert, Re (1939) 9 ILR 118 208
Cibrario v Russian Trade Delegation (1931) 6 ILR 54 163
Cisatlantic (1954) 21 ILR 293 706
City of Berne v Bank of England (1804) 9 Ves Jun 346 159
Civil Air Transport Inc v Civil Air Transport Corp [1953] AC 70 158
Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32 (2004) 135
ILR 374 521, 522
Clark (Inspector of Taxes) v Oceanic Contractors Inc [1983] 2 AC
130 272
Clarsfield v Office Franco-Allemand pour la Jeunesse (1968) 72
ILR 191 174
Clerget v Représentation Commerciale de la République
démocratique du Viet-Nam (1969) 96 JDI 894152
Cleveland Museum of Art v Capricorn International SA [1990] 2
Lloyd’s Rep 166 472
Clipperton Island (1931) 2 RIAA 1105 223, 224, 226, 233
CME (Czech Republic) BV v Czech Republic Partial Award (2001)
9 ICSID Reports 121 622, 711, 717
Final Award (2003) 9 ICSID Reports 264 618, 626, 711
(p. xxxviii) CMS Gas Transmission v Argentina Award (2005) 14
ICSID Reports 158; (2005) 44 ILM 120555, 564, 617, 621
Decision on Annulment (2005) 14 ICSID Reports
251 55, 631
Coenca Bros v Germany (1924) 4 ILR 570 541
Cohen v Whitcomb, 142 Minn 20 (Minn SC, 1919) 251
Coleman v Miller, 307 US 433 (1939) 84
Colgrove v Green, 328 US 549 (1946) 84
Commercial and Estates Co of Egypt v Ball (1920) 36 Times LR
526 68
Commercial and Estates Co of Egypt v Board of Trade [1925] 1
KB 271 67, 68
Commission Nationale des Droits de l’Homme et des Libertés v
Chad (2000) AHRLR 66 666
Commission v Ireland (C-459/03) [2006] ECR I-4635 355
Commission v Kadi (No 2), ECJ (GC) (pending) 199
Committee of United States Citizens Living in Nicaragua v
Reagan, 859 F.2d 929 (DC Cir, 1988) 60, 78, 80
Commonwealth v Tasmania (1983) 68 ILR 266 117
Compania de Gas de Nuevo Laredo v Entex Inc, 696 F.2d 332
(5th Cir, 1982) 87
Compañía del Desarrollo de Santa Elena SA v Costa Rica (2000)
5 ICSID Reports 157 626
Compania Naviera Vascongada v SS Christina [1938] AC 485 71
Company, A v Republic of X [1990] 2 Lloyd’s Rep 570 501
Competence of the General Assembly for the Admission of a State
to the United Nations, ICJ Reports 1950 p 4 731
Competence of the ILO to Regulate Incidentally the Personal Work
of the Employer (1926) PCIJ Ser B No 13 38, 184
Conditions of Admission of a State to the United Nations (Article 4
of the Charter), ICJ Reports 1948 p 57 731
Conka v Belgium [2002] ECtHR 51564/99 609
Conrades v UK (1981) 65 ILR 205 496
Consistency of Certain Danzig Legislative Decrees with the
Constitution of the Free City (1935) PCIJ Ser A/B No 65 55
Consortium RFCC v Kingdom of Morocco, 22 December
2003 627, 628
Constitutional Rights Project v Nigeria (2000) AHRLR
227 665, 666
Continental Casualty v Argentina, 22 February 2008 618
Continental Shelf (Libya/Malta), ICJ Reports 1985 p 13 271, 86–
92, 290, 295, 450
Continental Shelf (Tunisia/Libya), ICJ Reports 1982 p
18 277, 288, 290–4
Contomichalos v Drossos (1937) 8 ILR 314 526
Cook v Sprigg [1899] AC 572 73, 75
Corfu Channel (UK v Albania) Preliminary Objection, ICJ Reports
1947 p 15 724, 726, 728
Merits ICJ Reports 1949 p
4 36, 298, 353, 448, 542, 543, 556–
8, 560, 572, 576, 590, 636, 654, 712, 747
Corn Products International v Mexico (2008) 146 ILR
581 565, 587, 625
Corrie v Caterpillar, 503 F.3d 974 (9th Cir, 2007) 84
Corte di Cassazione, 22 March 1984, Judgment No 1920 98
Corte di Cassazione, 13 January 2009, Judgment No 1072 90, 92
Corus Staal BV v Department of Commerce, 395 F.3d 1343 (Fed
Cir, 2005) 78
Costa Rica Journalists Association (1985) 75 ILR 30 664
Costa v Military Service Commission of Genoa (1939) 9 ILR
26 436
Council of Civil Service Unions v Minister for the Civil Service
[1985] AC 374 72
Credit Suisse Fides Trust SA v Coughi [1998] QB 818 484, 485
Cristiani v Italian Latin-American Institute (1985) 87 ILR 20 174
Crow v von Herder [1964] NJA 65 93
Cruise Missiles (Danger to Life), 66 BVerfGE 39 (1983); (1983)
106 ILR 353 108
Cruzel v Massip (1960) 39 ILR 412 210
Cummings, Re (1958) 26 ILR 549 408
Curran v City of New York, 77 NYS.2d 206 (Sup Ct, 1947) 178
Customs Regime between Germany and Austria (1931) PCIJ Ser
A/B No 41 131, 210
Cyprus v Turkey (Fourth Interstate Case) (2001) 120 ILR
10 164, 599, 646, 652
(p. xxxix) Czech Republic v European Media Ventures SA [2007]
EWHC 2851 (Comm) 65
Czechoslovak Republic (1926) 3 ILR 180 490
D’Hoop (C-224/98) [2002] ECR I-6191 525
Daimler v Continental Tyre Co [1916] 2 AC 307 526
Dallal v Bank Mellat [1986] 1 QB 441 60
Dalmia Dadri Cement Co Ltd v Commissioner of Income Tax
(1958) 26 ILR 79 431
Daniunas v Simutis, 481 F.Supp 132 (SDNY, 1978) 162
Davis (1903) 9 RIAA 460 564
DC v Public Prosecutor (1972) 73 ILR 38 424, 426
De Andrade v De Andrade (1984) 118 ILR 299 407
De Malglaive [1970] Rec Lebon 635; (1970) 72 ILR 236 103
De Queiroz v Portugal (1992) 115 ILR 430 497
De Sabla (1933) 7 ILR 241 623
De Wütz v Hendricks (1824) 2 Bing 314 62
Delagoa Bay Railway Co (1900) 3 Whiteman (1943) 1694; (1900)
30 Martens, NRG, 2nd Ser 329 577, 628
Delimitation of the Continental Shelf (UK/France) First Decision
(1977) 54 ILR 6; (1977) 18 RIAA
3 40, 258, 271, 289, 291, 292, 294, 376, 419, 720
Interpretation (1978) 54 ILR 139 720
Delimitation of Maritime Areas between Canada and the French
Republic (St Pierre and Miquelon) (1992) 95 ILR
645 284, 292, 293, 720
Delimitation of the Maritime Boundary between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS
Case No 16 (Judgment 14 May
2012) 269, 284, 287, 291, 294, 295, 736
Delimitation of the Maritime Boundary between Guinea-Bissau and
Senegal (1989) 83 ILR 1 124, 239
Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/US), ICJ Reports 1984 p
24626, 36, 232, 271, 277, 278, 287, 420, 422
Delle Buttner [1953] Rec Lebon 184 103
Democratic Republic of Congo v FG Hemisphere Associates LLC,
Hong Kong Court of Final Appeal, Judgment of 8 June
2011 28, 490, 501, 504
Democratic Republic of East Timor & Fretilin v State of the
Netherlands (1980) 87 ILR 73 163
Demopoulos v Turkey [2010] ECtHR 46113/99, 3843/02,
13751/02, 13466/03, 14163/04, 10200/04, 19993/04 & 21819/04
(GC) 156, 165, 599
Denmark v Turkey (Friendly Settlement) [2000] ECtHR
34382/97 717
Derby & Co Ltd v Larsson [1976] 1 WLR 202 472
Derby & Co Ltd v Weldon [1990] Ch 48 (CA) 484
Derbyshire County Council v Times Newspapers [1992] QB
770 67
Desert Line Projects LLC v Yemen, 6 February 2008 617, 618
Deutsch Continental Gas-Gesellschaft v Polish State (1929) 5 ILR
11 128, 136, 145, 152
Deutsche Amerikanische Petroleum Gesellschaft Oil Tankers
(1926) 2 RIAA 777 535
Diallo See Ahmadou Sadio Diallo
Dickinson v Del Solar [1930] 1 KB 376 406
Dickson Car Wheel Co (USA) v United Mexican States (1931) 4
RIAA 669 542
Diergaardt v Namibia (2000) CCPR/ C/69/D/760/1997 650
Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the Commission on Human Rights, ICJ Reports
1999 p 62 58
Différends Sociétés Dufay et Gigandet (1962) 16 RIAA 197 226–8
Diggs v Richardson, 555 F.2d 848 (DC Cir, 1976) 60
Digmeloff v State Civil Officer of St Josse-Ten-Noode (1928) 4 ILR
69 163
Distomo Massacre (2000) 129 ILR 513; (2003) 129 ILR
556 487, 498, 506
Diversion of Water from the Meuse (1937) PCIJ Ser A/B No
70 43, 44, 338
Diverted Cargoes (1955) 12 RIAA 53 368
Dix (1903) 9 RIAA 119 559, 577
Dobozy (1958) 26 ILR 345 704
Doe v Unocal, 395 F.3d 932 (9th Cir, 2002) 82, 83
Dohnert, Muller, Schmidt & Co, Re (1961) 32 ILR 570 624
(p. xl) Donegal International Ltd v Republic of Zambia [2007]
EWHC 197 500
Donohue v Armco Ltd [2002] 1 Lloyd’s Rep 425 485
Dorf (1973) 71 ILR 552 397
DPP v Doot [1973] AC 807 459
DPP v Joyce [1946] AC 347 460
DPP v Stonehouse [1977] 2 All ER 909 459
Dubai-Sharjah Border (1981) 91 ILR 543 288, 290
Duc de Guise, Heirs of (1951) 13 RIAA 150 547
Duchy of Sealand, Re (1978) 80 ILR 683 128
Dudgeon (Article 50) (1981) 67 ILR 395 665
Duff Development Co Ltd v Government of Kelantan [1924] AC
797; (1924) 2 ILR 124 135, 500
Duff v R (1979) 73 ILR 678 414
Duggan v Tapley (1951) 18 ILR 336 636
Duke Energy Electroquil Partners & Electroquil SA v Republic of
Ecuador, 18 August 2008 55, 617, 618
Duke of Brunswick v King of Hanover (1848) 9 ER 993 62
Dunlop Ltd v Cudell & Co [1902] 1 KB 342 472
Dutch Diplomat Taxation (1980) 87 ILR 76 410
East African Asians (1973) 3 EHRR 76 646
East Timor (Portugal v Australia), ICJ Reports 1995 p
90 156, 578, 583, 596, 597, 646, 694, 699, 723
Eastern Carelia See Status of Eastern Carelia
Eastern Extension, Australasia and China Telegraph Co, Ltd
(1923) 6 RIAA 112 45
Eastern Greenland See Legal Status of Eastern Greenland
Eastern Sugar BV v Czech Republic, 12 April 2007 619
Eckhardt v Eurocontrol (No 2) (1984) 94 ILR 331 173
Economic Community of West African States v BCCI (1993) 113
ILR 472 174
EDF v Romania, 8 October 2009 618
Effects of Awards of Compensation made by the UN
Administrative Tribunal, ICJ Reports 1954 p 47 59
Eichmann See A-G (Israel) v Eichmann
Einhorn-Fielstein v Netherlands Claims Commission
(Czechoslovakia) (1971) 73 ILR 378 704
Eis (1959) 30 ILR 116 545
El Paso Energy v Argentina, 27 April 2006 631
El Triunfo (1901) 15 RIAA 467 623, 628
Electricity Co of Sofia and Bulgaria (1939) PCIJ Ser A/B No
77 36, 562, 727, 729
Elettronica Sicula SpA (ELSI) (US v Italy), ICJ Reports 1989 p
15 51, 528, 618, 712
El-Hadad v UAE, 496 F.3d 658 (DC Cir, 2007) 497
El-Masri v Macedonia, al Nasheri v Poland & Abu Zubaydaf v
Lithuania, ECtHR 39630/09 (pending) 483
Embassy Interpreter Dismissal (1985) 77 ILR 485 497
Emperor of Austria v Day & Kossuth (1861) 3 De GF & J 217;
(1861) 30 LJ Ch 690 62, 71
Empson v Smith [1966] 1 QB 426 396, 406
Engelke v Musmann [1928] AC 433 410
Engquist v The School Board of Luleå Municipality [1974]
Regeringsrättens Årsbock No 61 102
Equal Employment Opportunity Commission v Arabian American
Oil Co, 499 US 244 (1991) 533
Ergi v Turkey [1998] ECtHR 23818/94 667
Erich Gasser GmbH v MISAT srl (C-116/02) [2003] ECR I14693 474, 485
Eritrea and Yemen
Phase 1: Territorial Sovereignty (1998) 114 ILR 1; (1998) 22
RIAA
209 40, 203, 207, 218, 219, 221, 233, 236, 239, 246, 720
Phase 2: Maritime Delimitation (1999) 119 ILR 417; (1999)
22 RIAA 367 40, 284, 720
Eritrea-Ethiopia Boundary Delimitation (2002) 130 ILR
1 215, 218, 225, 240
Eschauzier (1931) 5 RIAA 207 703
Esphahanian v Bank Tejarat (1983) 72 ILR 478 710
Establishment of Czechoslovak State (1925) 3 ILR 13 136
Ethiopia’s Damages Claims (Final Award) (2009) 26 RIAA 631 580
Ethyl Corp v Government of Canada (1998) 122 ILR 250 368
Eureko BV v Republic of Poland (2005) 12 ICSID Reports
331 631, 700
European Roma Rights v Immigration Officer [2005] 2 AC 1 645
European Space Operations Centre Official Immunity (1973) 73
ILR 683 174
(p. xli) Eurotunnel (2007) 132 ILR 1 632
Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No
10 38, 52, 54, 170
Exportchleb Ltd v Goudeket (1935) 8 ILR 117 162
Expropriated Religious Properties (1920) 1 RIAA 7 521, 623
Extrajudicial Executions and Forced Disappearances v Peru,
IACHR 101/01, 11 October 2001 667
Faber (1903) 10 RIAA 438 339
Fabiani (1902) 10 RIAA 83 35
Factory at Chorzów Jurisdiction (1927) PCIJ Ser A No
9 36, 40, 541, 624
Merits (1928) PCIJ Ser A No 17 568, 624, 571, 625
Fang v Jiang Zemin (2006) 141 ILR 702 490, 494, 494, 505
Farrugia v Nuova Comp Gen Autolinee (1951) 18 ILR 77 228
Fatemi v United States, 192 A.2d 535 (1963) 403, 405, 406
Favourite, The (1921) 6 RIAA 82 556
Fayed v Al-Tajir [1988] 1 QB 712 404
Fayed v UK [1994] ECtHR 17101/90 665
Fedax v Venezuela (1997) 5 ICSID Reports 183 631
Federal Insurance Co (1958) 26 ILR 316 705
Federal Ministry of the Interior (1925) 4 ILR 25 136
Federal Republic and National Bank of Yugoslavia v Republics of
Croatia, Slovenia, Macedonia and Bosnia-Herzegovina (1999) 128
ILR 627 428
Federal Republic of Germany v Elicofon, 358 F.Supp 747 (EDNY,
1972) 162
Feierabend (1960) 42 ILR 157 627
Feiner, Re (1956) 23 ILR 367 436
Feldman v Mexico (2002) 126 ILR 26 35
Ferrini v Federal Republic of Germany, Corte di Cassazione, 11
March 2004, Judgment No 5044; (2004) 128 ILR
659 58, 90, 91, 487, 498, 506
Filartiga v Peña-Irala, 630 F.2d 876 (2nd Cir, 1980) 58, 82, 475
Filleting within the Gulf of St Lawrence (Canada v France) (1986)
19 RIAA 225 418
Finance Ministry [1966] Rec Lebon 476 104
Finnish Ships (1934) 3 RIAA 1479 711, 713, 715
First National City Bank of New York (1957) 26 ILR 323 700, 704
First National City Bank v Banco Nacional de Cuba, 406 US 750
(1972) 87
First National City Bank v Banco Para el Comercio Exterior de
Cuba, 462 US 611 (1983) 493
Fisheries (UK v Norway), ICJ Reports 1951 p
116 23, 28, 29, 40, 51, 53, 54, 211, 255, 258–
64, 299, 419, 458, 510, 515
Fisheries Jurisdiction (Germany v Iceland) Jurisdiction, ICJ
Reports 1973 p 49 275, 321, 393, 417, 572
Merits, ICJ Reports 1974 p 175 300
Fisheries Jurisdiction (Spain v Canada), Jurisdiction, ICJ Reports
1998 p 432 723, 727
Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1974 p
4 25, 28, 45, 275, 300, 321, 368, 389, 393
Flack (1929) 5 RIAA 61 703, 706
Flatow v Islamic Republic of Iran, 999 F.Supp 1 (DDC, 1998) 461
Flegenheimer (1958) 25 ILR 91 520, 710
Flesche, Re (1949) 16 ILR 266 594, 636
Flexi-Van Leasing, Inc v Iran (1986) 70 ILR 496 530
Flomo v Firestone Natural Rubber Co, 643 F.3d 1013 (7th Cir,
2011) 656
Fogarty v UK (2001) 123 ILR 53 488, 496, 497
Foka v Turkey [2008] ECtHR 28940/95 164
Folke B v Navarsvikens jaktvårdsområdesförening [1994] NJA
290 102
Food and Agriculture Organization v INDPAI (1982) 87 ILR 1 174
Ford v United States, 273 US 593 (1927) 459
Foreign Press Attaché (1962) 38 ILR 160 398, 408
Forests in Central Rhodopia (1933) 3 RIAA 1405 713
Forti v Suarez-Mason, 694 F.Supp 707 (ND Cal, 1988) 83
Foster v Neilsen, 27 US 253 (1829) 77, 79
Fothergill v Monarch Airlines Ltd [1981] AC 251 65
Foundation for the Prohibition of Cruise Missiles, NJ (1991) No
248; (1991) 106 ILR 400 108
(p. xlii) Franco-Ethiopian Railway Co (1957) 24 ILR
602 226, 229, 431, 570
Fraport AG Frankfurt Airport Services Worldwide v Republic of the
Philippines Award, 16 August 2007451
Decision on Annulment, 23 December 2010 53
Free City of Danzig and the ILO (1930) PCIJ Ser B No 18 118
Free Zones of Upper Savoy and the District of Gex (1930) PCIJ
Ser A No 24 36, 45, 51, 450
Free Zones of Upper Savoy and the District of Gex (1932) PCIJ
Ser A/B No 46 51, 381, 439, 562
French Claims against Peru (1921) 1 ILR 182 623
French Consulate in Cracow (1958) 26 ILR 178 490
FRG-GDR Relations Case (1973) 78 ILR 149 163
Frolova v Union of Soviet Socialist Republics, 761 F.2d 370 (7th
Cir, 1985) 78
Frontier Dispute (Benin/Niger), ICJ Reports 2005 p
90 213, 239, 240
Frontier Dispute (Burkina Faso/Mali), ICJ Reports 1986 p
554 45, 216, 238, 239, 244, 418, 439
Furst (1960) 42 ILR 153 621
Gabčíkovo-Nagymaros Project (Hungary/ Slovakia), ICJ Reports
1997 p 7 43, 208, 339, 353, 354, 356, 359, 382, 385, 391–
3, 417, 424, 571, 572, 587
Gaddafi (2000) 125 ILR 490 41, 500, 689
Gangaram Panday v Suriname, IACtHR C/12, 4 December
1991 664
García & Garza (1926) 4 RIAA 119 545
Garcia Avello (C-148/02) [2003] ECR I-11613 525
Garland v British Rail Engineering Ltd [1983] 2 AC 751 66
Garrido & Baigorria v Argentina, IACtHR C/39, 27 August
1998 548
Gdynia Ameryka Linie Zeglugowe AS v Boguslawski [1953] AC
11 158
Gencor Ltd v Commission (T-102/96) [1999] ECR II-753 463
Generation Ukraine v Ukraine (2003) 10 ICSID Reports 236 622
Genin v Estonia (2001) 6 ICSID Reports 236 617, 618
Genocide See Application of the Convention
Georges Pinson (France) v United Mexican States (1928) 5 RIAA
327 52, 59
Georgia v South Carolina, 497 US 376 (1991) 240, 241
Gerhardy v Brown [1985] HCA 11 645
German Immunities in Poland (1937) 8 ILR 239 490
German Nationality (1952) 19 ILR 319 513
German Settlers in Poland (1923) PCIJ Ser B No 6 43, 55, 624
Germany v Mantelli, Court of Cassation, No 14201/2008, 29 May
2008 498
Gibbs v Rodríguez (1951) 18 ILR 661 41
Giles v Tumminello (1969) 38 ILR 120 462
Gilligan v Morgan, 413 US 1 (1973) 84
Gillow (1986) 75 ILR 561 665
Girod de l’Ain (1986) 82 ILR 85 174
GITSI [1992] Rec Lebon 346; (1992) 106 ILR 198 103
Glaeser [1976] Rec Dalloz 1; (1976) 74 ILR 700 95
Glamis Gold v US, 8 June 2009 614, 617, 628
Gleadell (1929) 5 RIAA 44 703, 704
Gleaves v Deakin [1980] AC 477 67
Glen v Club Mediterranee SA, 450 F.3d 1251 (11th Cir, 2006) 87
Goering, Re (1946) 13 ILR 203 32, 39
Goldenberg (1928) 4 ILR 542 623
Golder (1975) 57 ILR 200 637
Goldwater v Carter, 444 US 996 (1976) 84, 380
Golshani v Islamic Republic of Iran (1993) 29 Iran–US CTR
78 420
Gomes Lund v Brazil, IACtHR C/219, 24 November 2010 569
González (‘Cotton Field’) v Mexico, IACtHR C/205, 16 November
2009 384
Gonzalez-Vera v Kissinger, 449 F.3d 1260 (DC Cir, 2006) 84
Goodyear Dunlop Tyres Operations SA v Brown, 131 S.Ct 2846
(2011) 473
Gordon (1930) 4 ILR 586 550
Government of Kuwait v American Independent Oil Co (Aminoil)
(1982) 66 ILR 518 632
Government of Somalia v Woodhouse, Drake & Carey (Suisse) SA
[1993] QB 54 151, 154, 158
Government of Sudan/Sudan People’s Liberation Movement/Army
(Abyei Arbitration) (2009) 144 ILR 348 35, 215
(p. xliii) Government of the Dominican Republic v AES Corp, 466
F.Supp 2d 680 (ED Va, 2006) 87
Greco-Bulgarian Communities (1930) PCIJ Ser B No 17 51
Greece v Bulgaria (Treaty of Neuilly) (1933) 7 ILR 91 570
Greek National Military Service (1973) 73 ILR 606 459
Greek Powder & Cartridge Co v German Federal Republic (1958)
25 ILR 544 35
Greenham Women against Cruise Missiles v Reagan, 591 F.Supp
1332 (1984) 84
Greenpeace USA v Stone, 924 F.2d 175 (9th Cir, 1991) 533
Greens Association, The [1984] Rec Lebon 382 103
Grovit v De Nederlandsche [2006] 1 WLR 3323 494
Guatemala-Honduras Boundary (1933) 2 RIAA 1322 230, 239
Gudder Singh v The State (India) (1953) 20 ILR 145 205
Guiana Boundary (Brazil v UK) (1904) 11 RIAA 11 213
Guidance Regarding Jus Ad Bellum Liability (Decision No 7)
(2007) 26 RIAA 1 572
Guinea/Guinea-Bissau Maritime Delimitation (1985) 77 ILR
635 239, 271, 288–90, 294, 439, 720
Gulf of Maine, See Delimitation of the Maritime Boundary in the
Gulf of Maine Area
Gur Corp v Trust Bank of Africa Ltd [1987] 1 QB
599 58, 154, 157–9
Gustaf FW Hamester GmbH & Co KG v Republic of Ghana, 18
June 2010 701
Gustavo JL (1987) 86 ILR 517 401, 411
Gutierrez, Re (1957) 24 ILR 265 459
Guyana v Suriname (2007) 139 ILR 566; (2008) 47 ILM
166 213, 283, 284, 541, 747
Haas v Humphrey, 246 F.2d 682 (DC Cir, 1957) 700
Hague City Party v Netherlands, ILDC 849 (NL 2005) 108
Haile Selassie v Cable & Wireless Ltd (No 2) [1939] 1 Ch
182 149, 158
Hallberg v Pombo Argaez (1963) 44 ILR 190 412
Hamdin v Rumsfeld 542 US 507 (2004) 82 548
US 557 (2006) 41, 209, 654
Handyside (1976) 58 ILR 150 664
Hanover Bank (1957) 26 ILR 334 703, 704
Hartford Fire Insurance v California, 509 US 764 (1993) 479, 480
Hartmann and Pude, Re, Italian Constitutional Court, 18 April
1967, Judgment No 48; (1967) 71 ILR 23291
Haw Pia v China Banking Corp (1951) 18 ILR 642 56
Hawaiian Claims (1925) 6 RIAA 157 442
Haya de la Torre (Columbia v Peru), ICJ Reports 1951 p 71 404
Heaney v Government of Spain, 445 F.2d 501 (2nd Cir, 1971) 413
Heathfield v Chilton (1767) 4 Burr 2015 62
Heathrow Airport User Charges Arbitration (1993) 102 ILR
215 712
Helbert Wagg & Co Ltd, Re [1956] 1 Ch 323; (1955) 22 ILR
480 76, 625
Helicopteros Nacionales de Columbia v Hall, 466 US 408
(1984) 473
Hellenic Lines Ltd v Moore, 345 F.2d 978 (DC Cir, 1965) 403
Hendry (1930) 4 RIAA 616 521
Henriquez (1903) 10 RIAA 727 550
Her Majesty’s Advocate v Abdelbaset Ali Mohmed Al Megrahi and
Al Amin Khalifa Fhimah, Scottish Court in the Netherlands,
Judgment of 31 January 2001, Case No 1475/99 672
Herrera Ulloa v Costa Rica, IACtHR C/107, 2 July 2004 664
Hesperides Hotels Ltd v Aegean Turkish Holidays [1978] QB
205 153, 159
Hexner (1962) 42 ILR 169 627
High Commissioner for India v Ghosh [1960] 1 QB 134 411, 495
Hilao v In re Estate of Marcos, 25 F.3d 1467 (9th Cir, 1994) 69, 83
Hilton v Cuyot, 159 US 113 (1895) 485
Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941]
AC 308 (PC) 63
Holland v Lampen-Wolfe [2000] 1 WLR
1573 487, 491, 493, 498, 499
Holy See v Starbright Sales (1994) 102 ILR 163 124
Home Missionary Society (1920) 6 RIAA 42 557, 564
Honduras Aircraft Registry Ltd v Government of Honduras, 129
F.3d 543 (11th Cir, 1997) 87
(p. xliv) Honorary Consul of X v Austria (1986) 86 ILR 553 413
Hopkins (1926) 3 ILR 229 613, 623
Hopu and Bessert v France (1997) 118 ILR 262 656
Hunt v Coastal States Gas Producing Co (1979) 66 ILR 361 87
Huntington v Attrill [1893] AC 150 482
Hussein v Governor of Acre Prison (1950) 17 ILR 112 518
Hyde Park v Moldova (No 4) (18491/07) [2009] ECtHR 664
I Congreso del Partido [1978] 1 QB 500 68, 71, 490
Iannelli v United States, 420 US 770 (1975) 459
Illinois Central Railroad Co (USA) v United Mexican States (1926)
4 RIAA 21 55
(1926) 4 RIAA 134 577
Iloilo (1925) 6 RIAA 158 557
Impregilo SpA v Islamic Republic of Pakistan (2005) 12 ICSID
Reports 245 628, 632
Inao Horimoto v The State (1954) 32 ILR 161 700
Inceysa Vallisoletana v Republic of El Salvador, 2 August
2006 701
Incres v International Maritime Workers Union (1963) 34 ILR
66 533
Indian Foreign Minister (1988) 90 ILR 408 493
Indpai v Food and Agriculture Organization (1982) 87 ILR 5 175
Indus Waters Kishenganga Arbitration (Pakistan v India), Order of
23 September 2011 354, 355
Ingela C v KFA [1981] NJA 1205 102
Inginer N Vlassopol, The (1951) 18 ILR 725 526
Interhandel (Switzerland v US), Preliminary Objections, ICJ
Reports 1959 p 6 455, 570, 711, 713, 714, 725, 729
Interights v Mauritania (2004) AHRLR 87 665
International Atomic Energy Agency Representative Immunity
(1971) 70 ILR 413 174
International Institute of Agriculture v Profili (1930) 5 ILR 413 174
International Patents Institute Employee (1969) 70 ILR 418 174
International Registration of Trade-Mark (1959) 28 ILR 82 163
International Responsibility for the Promulgation of Laws in
Violation of the Convention (Article 1 and 2 of the American
Convention on Human Rights) (1994) 116 ILR 320 53
International Shoe Co v Washington, 326 US 310 (1945) 473
International Status of South West Africa, ICJ Reports 1950 p
128 206, 246, 247, 380
International Thunderbird Gaming Corp v Mexico, 26 January
2006 617, 618
International Tin Council (No 2), Re [1988] 3 All ER 257 491
International Tin Council v Amalgamet Inc, 524 NYS.2d 971 (Sup
Ct, 1988) 173, 174
Internationale Handelsgesellschaft v Einfuhr-und Vorratsstelle für
Getreide und Futtermittel (Solange I) (1970) 93 ILR 362 670
Interoceanic Railway of Mexico (1931) 5 RIAA 178 706
Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania First Phase, ICJ Reports 1950 p 65 38, 694, 730, 731
Second Phase, ICJ Reports 1950 p 221 541
Interpretation of the Statute of the Memel Territory (1932) PCIJ Ser
A/B No 49 53, 118, 450
Intpro Properties (UK) Ltd v Sauvel [1983] 2 All ER 495 407
Ioannis Kardassopoulos v Georgia, 6 July 2007 55
Iran, Re, 659 F.Supp 2d 31 (DDC, 2009) 498
Iranian Naturalization (1968) 60 ILR 204 636
Iran–US Claims Tribunal v AS (1985) 94 ILR 321 173
Iran–US, Case No A/18 (1984) 75 ILR 175 368
Iraq v Vinci Constructions (2002) 127 ILR 101 403, 487
IRC v Collco Dealings Ltd [1962] AC 1 64
Ireland v UK [1976] ECtHR 5310/71; (1978) 58 ILR 188 550, 664
Iron Rhine (Belgium v Netherlands) (2005) 27 RIAA 35 214
Island of Palmas (Netherlands v US) (1928) 2 RIAA
828 40, 212, 213, 217, 218, 225, 227, 228, 230, 232, 233, 237, 238, 240
Issa v Turkey (2005) 41 EHRR 567 652
(p. xlv) Italian South Tyrol Terrorism Case (No 2) (1970) 71 ILR
242 462
Italy v Djukanovic, ILDC 74 (IT 2004) 163
Italy v FRG (1959) 29 ILR 442 570
Italy v UK (1953) 25 ILR 2 424
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 66
JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry
[1989] Ch 72; [1990] 2 AC 418 63, 69
Jackson v People’s Republic of China, 794 F.2d 1490 (11th Cir,
1986) 504
Jacobellis v Ohio, 378 US 184 (1964) 462
Jacobsen v Norwegian Government (1933) 7 ILR 109 250
Jaffe v Miller (1993) 95 ILR 446 494
Jakóbski v Poland [2010] ECtHR 18429/06 664
James (1986) 75 ILR 396 666
James Buchanan and Co Ltd v Babco (UK) Ltd [1977] AC 141 379
Jan de Nul v Egypt (2008) 15 ICSID Reports 437 617
Jan Mayen Continental Shelf (1981) 62 ILR 108 291, 292
Jan Mayen See Maritime Delimitation in the Area between
Greenland and Jan Mayen
Janes (1925) 4 RIAA 82 573
Jany v Staatssecretaris van Justitie (C-268/99) [2001] ECR I8615 368
Javor and Others (1996) 127 ILR 126 467
Jenni v Conseil d’État (1978) 75 ILR 99 117
Jersild v Denmark (1994) 107 ILR 23 664
Jessie, The (1921) 6 RIAA 57 556
Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya
(Kingdom of Saudi Arabia) [2006] UKHL 26; [2007] 1 AC
270 56, 490, 494, 498, 500, 505, 506, 689
Jorgic v Germany [1997] ECtHR 74614/01 468
Joy Mining v Egypt (2004) 13 ICSID Reports 123 631
Joyce v Director of Public Prosecutions [1946] AC 347 462
Julhiard v Secretary-General of the United Nations (1955) 22 ILR
809 525
Juno Trader, The (2004) 128 ILR 267 532
Jurisdiction of the Courts of Danzig (1928) PCIJ Ser B No 15 54
Jurisdiction of the European Commission of the Danube (1927)
PCIJ Ser B No 14 29, 170, 184, 339
Jurisdiction over Berlin, 20 BVerfGE 257 (1966); (1966) 75 ILR
113 105
Jurisdictional Immunities of the State (Germany v Italy), Judgment
of 3 February 2012 488, 498, 499, 501, 505, 506
Kadi v Council and Commission (T-315/01) [2005] ECR II3649 198
Kadi & Al Barakaat International Foundation v Council &
Commission (C-402/05 P & C-415/05 P) [2008] ECR I06351 198, 368, 593, 670
Kadi v European Commission, Judgment of the General Court
(Seventh Chamber) of 30 September 2010 593
Kadić v Karadžić, 70 F.3d 232 (2nd Cir, 1995) 83–5
Kahan v Pakistan Federation [1951] 2 KB 1003 500
Kahane (Successor) v Parisi and Austrian State (1929) 5 ILR
213 514, 519
Kahler v Midland Bank [1950] AC 24 628
Kalamazoo Spice Extraction Co v PMG of Socialist Ethiopia, 728
F.2d 422 (6th Cir, 1984) 86
Kalogeropoulou v Greece (2002) 129 ILR 537 505
Kane v Winn, 319 F.Supp 2d 162 (D Mass, 2004) 80
Kansas v Missouri, 322 US 213 (1943) 240
Kardassopoulos v Georgia
Decision on Jurisdiction, 6 July 2007 611
Award, 3 March 2010 623
Kasikili/Sedudu Island (Botswana v Namibia), ICJ Reports 1999 p
1045 38, 124, 213, 222, 226, 231, 233, 240
Kate, The (1921) 6 RIAA 188 556
Kaunda v President of the Republic of South Africa (2004) 136 ILR
452 700
Kaya v Turkey [1998] ECtHR 22729/93 667, 714
Keller v Central Bank, 277 F.3d 811 (6th Cir, 2002) 494
Kelley (1930) 4 RIAA 608 564
Kenyan Diplomatic Residence (2003) 128 ILR 632 403, 487
(p. xlvi) Khadr v Canada (No 1) (2008) 143 ILR 212 209
Khan v Holder, 594 F.3d 773 (9th Cir, 2009) 80
Khordodovskiy, Re (2006) 133 ILR 365 92
Khurts Bat v Investigating Judge of the German Federal Court
[2011] EWHC 2029 (Admin) 414, 489, 499, 500
King Faisal II, In the Estate of, 199 NYS.2d 595 (Surr Ct,
1966) 404
Kiobel v Royal Dutch Petroleum Co, 621 F.3d 111 (2nd Cir,
2010) 82, 475, 476, 656
Kitok v Sweden (1988) 96 ILR 637 648
Kiyutin v Russia [2011] ECtHR 2700/10 646
Klass v Germany (1978) 58 ILR 423 664
Kleindienst v Mandel, 408 US 753 (1972) 609
Kling (1930) 4 RIAA 575 545
Klinghoffer v SNC Achille Lauro, 937 F.2d 44 (2nd Cir,
1991) 84, 161
Knab v Republic of Georgia et al (1998) 1998 US Dist LEXIS
8820 408, 411
Knesevich (1954) 21 ILR 154 704
Knuller (Publishing, Printing and Promotions) Ltd v Director of
Public Prosecutions [1973] AC 435 70
Koch, Re (1966) 30 ILR 496 468
Koh-i-noor L&C v Koh-i-noor Tužkárna L&C Hardtmuth (1958) 26
ILR 40 436
Kokkinakis v Greece (14307/88) [1993] ECtHR 664
Koo Golden East Mongolia v Bank of Nova Scotia [2008] QB
717 496
Koowarta v Bjelke-Petersen (1982) 68 ILR 181 117
Kren (1955) 20 ILR 233 703
Krimtschansky v Officier de l’Etat Civil de Liège (1929) 5 ILR
47 163
KTHY v Secretary of Transport [2009] EWHC 1918 (Admin);
[2010] EWCA Civ 1093 205, 211
Kunstsammlungen zu Weimar v Elicofon, 358 F.Supp 747 (EDNY,
1972) 162
Kupferberg (C-104/81) (1982) 93 ILR 76 64
Kurt v Turkey [1998] ECtHR 24276/94 667
Kuwait Airways Corp v Iraqi Airways Co [1995] 1 Lloyd’s Rep 25;
[1995] 1 WLR 1147 491, 493, 500
Kuwait Airways Corp v Iraqi Airways Co and the Republic of Iraq
(1998) 116 ILR 534 154
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC
883 75, 76
L v R (1977) 68 ILR 175 413
LaGrand (Germany v US) Provisional Measures, ICJ Reports
1999 p 9 547
Merits, ICJ Reports 2001 p
466 117, 379, 413, 549, 585, 700, 725
Lakah Group v Al Jazeera Satellite Channel [2002] EWHC 1297
(QB); [2003] EWCA Civ 1781 473
Lake Lanoux (France v Spain) (1957) 12 RIAA 281; (1957) 24 ILR
101 338, 451, 561, 720
Laker Airways Ltd v Sabena, 731 F.2d 909 (DC Cir, 1984) 479
Lamont v Woods, 948 F.2d 825 (2nd Cir, 1991) 85
Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v Nigeria; Equatorial Guinea intervening) Preliminary
Objections, ICJ Reports 1998 p 275 36, 39, 420
Application by Equatorial Guinea to Intervene, ICJ Reports
1999 p 1029 698
Merits, ICJ Reports 2002 p
303 38, 210, 213, 218, 227, 228, 233, 235, 236, 287, 288–
90, 342, 371, 415, 541, 572, 694
Land Reclamation by Singapore (Malaysia v Singapore) (2003)
126 ILR 487 355
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras;
Nicaragua intervening) Application by Nicaragua to Intervene, ICJ
Reports 1990 p 92 420
Merits, ICJ Reports 1992 p 351 40, 219, 221, 239–41, 419
Landreau (1921) 1 ILR 185 623, 628
Länsman v Finland (1996) 115 ILR 300 648
Latvian State Cargo & Passenger Steamship
Line v McGrath, 188 F.2d 1000 (DC Cir, 1951) 162
Lauritzen v Government of Chile (1956) 23 ILR 708 29, 41, 56
Lauritzen v Larsen, 345 US 571 (1953) 486
League of Arab States v I (2001) 127 ILR 94 175
Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), ICJ Reports 1971 p
16 38, 42, 156, 164, 187, 195, 197, 218, 247, 380, 382, 452, 592, 595
(p. xlvi) Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, ICJ Reports 2004 p
136 61, 156, 578, 592, 643, 646, 653, 701, 730, 757, 759
Legal Status of Eastern Greenland (1933) PCIJ Ser A/B No
53 36, 40, 61, 212, 217, 219, 220, 222, 223, 226, 233, 235, 241, 415,
Legality of the Threat or Force of Nuclear Weapons, ICJ Reports
1996 p 226 57, 194, 731, 747
Legality of the Use by a State of Nuclear Weapons in Armed
Conflict, ICJ Reports 1996 p 66 174, 187, 188, 195, 731
Legality of Use of Force (Serbia and Montenegro v Belgium),
Preliminary Objections, ICJ Reports 2004 p 279 36, 39, 428, 724
Legality of Use of Force (Yugoslavia v Spain), ICJ Reports 1999 p
761 697
Legality of Use of Force (Yugoslavia v US), Provisional Measures,
ICJ Reports 1999 p 916 753
Lena Goldfields (1929) 5 ILR 3 35
Letelier and Moffitt, Re (1992) 88 ILR 727 719
Letelier v Chile, 488 F.Supp 665 (1980) 498
Lewis v Attorney-General of Jamaica [2001] 2 AC 50 (PC) 72
LG&E v Argentina, Decision on Liability, 3 October 2006 618
Award 25 July 2007 572
Li Chia Hsing v Rankin (1978)73 ILR 173 257
LIAMCO v Libyan Arab Republic (1982) 62 ILR 140 570, 627, 632
Liangsiripraset v United States [1991] 1 AC 225 459
Liberian Eastern Timber Corp (LETCO) v Government of the
Republic of Liberia (1986) 89 ILR 313 627
Libya/Chad See Territorial Dispute (Libya/Chad)
Libya/Malta See Continental Shelf (Libya/Malta)
Libyan American Oil Co (LIAMCO) v Government of the Libyan
Arab Republic (1977) 62 ILR 140 630
Libyan Arab Foreign Investment Co v Republic of Burundi (1991)
96 ILR 279 609
Lighthouses Arbitration between France and Greece Claim No 8
(Second Part) 23 ILR 79 429, 432
Claims No 11 and 4 (1956) 23 ILR 81 442
Claim No 1 (Second Part) (156) 23 ILR 341 623
Claims No 19 and 21 (1956) 23 ILR 352 558, 565
General (1956) 23 ILR 659 219, 228, 564, 699
Lighthouses in Crete and Samos Merits (1934) PCIJ Ser A/B No
62 53
Application of Judgment (1937) PCIJ Ser A/B No
71 135, 207, 226
Lindisfarne (1913) 6 RIAA 21 577
Lingens (1986) 88 ILR 513 664
Lithgow (Shipbuilding Nationalization) (1986) 75 ILR 438 368, 665
Lithgow and others v UK [1986] ECtHR 9006/80, 9262/81,
9263/81, 9265/81, 9266/81, 9313/81, 9405/81 623
Littrell v US (No 2) [1995] 1 WLR 82 490, 498, 499
Loewen Group v United States (2003) 7 ICSID Reports 421;
(2004) 128 ILR 334 617, 618, 700, 704, 713
Logan v Styres (1959) 27 ILR 239 519
Loizidou v Turkey Preliminary Objections (1995) 103 ILR
622 156, 376, 652
Merits, (1996) 108 ILR
443 156, 164, 205, 599, 601, 652, 688
Lonrho Exports Ltd v Export Credits Guarantee Department [1999]
Ch 158 72, 157
López Ostra v Spain (1994) 111 ILR 210 664
Lord Advocate’s Reference No 1, 2000 [2000] SLT 50757
Lotus See SS Lotus
Louisiana v Mississippi, 282 US 458 (1940)241
Lovelace v Canada (1981) 68 ILR 17 648
Lozano v Italy, ILDC 1085 (IT 2006)91, 500, 689
Lubbe v Cape plc [2000] 1 WLR 1545 472
Luberg’s Estate, Matter of, 243 NYS.2d 747 (NR App Div,
1963) 162
M and H (Minors), Re (Local Authority: Parental Rights) [1990] 1
AC 686 63
M v Cantonal Appeals Commission of Berne (1977) 75 ILR 85 174
M v Federal Department of Justice and Police (1979) 75 ILR
1079 425, 438
M v United Nations and Belgium (1969) 69 ILR 139 174, 636
(p. xlviii) M/V Saiga (St Vincent and the Grenadines v Guinea) (No
1) (1997) 110 ILR 736 735
(No 1) (1999) 120 ILR
143 278, 301, 532, 568, 571, 576, 702
Mabo v Queensland (No 2) (1992) 112 ILR 457 220, 251
Maclaine Watson & Co Ltd v Council & Commission of the
European Communities (C-241/87) (1990) 96 ILR 201 103, 104
Maclaine, Watson & Co Ltd v Department of Trade and Industry
[1990] 2 AC 418 64
Madera Co (1931) 5 RIAA 156 706
Magalhais v Fernandes (1936) 10 ILR 290 513
Magdalena Steam Navigation Co v Martin [1859] 2 El & El 94 410
Magellan Pirates, The (1853) 1 Sp Ecc & Ad 81 302
Maharanee of Baroda v Wildenstein [1972] 2 QB 283 472
Malewicz v City of Amsterdam, 517 F.Supp 2d 332 (DDC,
2007) 87
Mallén (1927) 4 RIAA 173 547, 550
Malone v Metropolitan Police Commissioner (No 2) [1979] 1 Ch
344 67, 73
Mamatkulov and Askarov v Turkey (2005) 134 ILR 230 483
Mannington Mills Inc v Congoleum Cor, 595 F.2d 1287 (3rd Cir,
1979) 479
Manouba, The (1913) 11 RIAA 471 575, 576
Mara’abe v Prime Minister of Israel (2005) 129 ILR 241 61
Marbury v Madison, 5 US (1 Cranch) 137 (1803) 84
Marcinkus, Mennini & De Strebel, Re (1987) 87 ILR 48 124
Marcos and Marcos v Federal Department of Police (1989) 102
ILR 198 489
Maret, The, 145 F.2d 431 (3rd Cir, 1944) 161
Mareva Compania Naviera SA v International Bulkcarriers SA
[1975] 2 Lloyd’s Rep 509 484
Margellos v Federal Republic of Germany (2002) 129 ILR
525 498, 499
Margulies v Austria and Hungary (1929) 6 RIAA 279 519
Maria v McElroy, 68 F.Supp 2d 206 (EDNY, 1999) 80
Maria B v Austrian Cultural Institute (1987) 82 ILR 1 490
Marianna Flora, The, 11 Wheaton 1 (1826) 308
Mariposa, The (1933) 6 RIAA 338; (1933)7 ILR 255 548, 623
Maritime Boundary Dispute between Norway and Sweden (1910)
4 AJIL 226 419
Maritime Delimitation and Territorial Questions between Qatar and
Bahrain (Qatar v Bahrain) Jurisdiction and Admissibility, ICJ
Reports 1994 p 112 368, 371
Merits, ICJ Reports 2001 p 40 222, 226, 263, 284, 287, 295
Maritime Delimitation in the Area between Greenland and Jan
Mayen (Denmark v Norway), ICJ Reports 1993 p
38 271, 275, 287, 289, 290
Maritime Delimitation in the Black Sea (Romania v Ukraine), ICJ
Reports 2009 p 61 40, 263, 287, 289, 295, 297
Maritime Dispute (Peru v Chile) (2008, pending) 300
Maroufidou v Sweden (1981) 62 ILR 278 609
Marshall v Canada (1991) 96 ILR 707 650
Masinimport v Scottish Mechanical Light Industries (1976) 74 ILR
559 390
Masri v Consolidated Contractors International (UK) Ltd (No 3)
[2009] QB 503 484
Massey (1927) 4 RIAA 155 543, 544
Mathison (1903) 9 RIAA 485 519, 710
Matsuyama v Republic of China (1928) 4 ILR 168 504
Mavrommatis Palestine Concessions (1924) PCIJ Ser A No
2 569, 581, 591, 694
Mavrommatis Jerusalem Concessions (1925) PCIJ Ser A No
5 432, 569, 576
Maya Indigenous Communities of the Toledo District v Belize
(2004) 135 ILR 1 645
Mayagna (Sumo) Awas Tingni Community v Nicaragua (2008) 136
ILR 73 656
Mazzanti v HAFSE (1954) 22 ILR 758 169
McCulloch v Sociedad Nacional (1963) 34 ILR 51 533
McElhinney v Ireland (2000) 121 ILR 198; (2001) 123 ILR
73 488, 498, 499
McKerr, Re [2004] 2 All ER 409 64, 74
Medellín v Dretke, 544 US 660 (2005) 60, 78
Medellín v Texas, 552 US 491 (2008) 60, 79, 82, 571
(p. xlix) Media Rights Agenda v Nigeria (2000) AHRLR 200 665
Meerauge Arbitration (Austria v Hungary) (1902) 8 RDI 2nd Ser,
207 40
Mégret [2000] Rec Lebon 291 104
Mellenger v New Brunswick Development Corp [1971] 1 WLR
604 492
Mentes v Turkey [1997] ECtHR 23186/94 667
Mergé (1955) 22 ILR 443 516, 710
Messina v Italy (No 2) [2000] ECtHR 25498/94 664
Messina v Petrococchino (1872) LR 4 PC 144 60
Metalclad Corp v Mexico (2000) 5 ICSID Reports 209; (2000) 119
ILR 615 547, 622
Methodist Church (1957) 26 ILR 279 704
Mexico—Soft Drinks, WT/DS308/AB/R, 6 March 2006 587, 625
Mexico v Metalclad (2001) 125 ILR 468 622
MGN Ltd v UK [2011] ECtHR 39401/04 664
Michael Domingues, IACtHR 62/02, 22 October 2002 595, 662
Micheletti and others v Delegacion del Gobierno en Catanbria (C369/90) [1992] ECR I-4329 525
Midland Bank plc v Laker Airways Ltd [1986] QB 689 485
Mighell v Sultan of Johore [1894] 1 QB 149 158, 500
Milde v Italy, No 1027/2008, 21 October 2008 498
Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v US), Jurisdiction and Admissibility, ICJ Reports 1984
p 392 417, 696, 723, 726, 727, 729
Merits, ICJ Reports 1986 p
14 26, 33, 34, 42, 46, 319, 297, 368, 418, 576, 586, 588, 595, 637, 654
Mingtai Fire and Marine Insurance Co Ltd v United Parcel Service,
177 F.3d 1142 (9th Cir, 1999) 161
Mininni v Bari Institute (1986) 87 ILR 28 174
Minister of State for Immigration and Ethnic Affairs v Teoh (1995)
104 ILR 460 41
Ministry of Defence of the Islamic Republic of Iran v Gould Inc, No
CV 87-03673-RG, US Dist Ct, CD Cal, 14 January 1988 161
Ministry of Home Affairs v Kemali (1962) 40 ILR 191 435
Ministry of Trade of the Republic of Iraq v Tsavliris Salvage
(International) Ltd [2008] 2 All ER (Comm) 805 493
Minority Schools in Albania (1935) PCIJ Ser A/B No 64 55, 645
Minquiers and Ecrehos (France v UK), ICJ Reports 1953 p
47 215, 221, 223, 225, 229, 237, 418
Mirza v Secretary of State for the Home Department [1996] Imm
AR 314 (CA) 66
Mittermaier, Re (1946) 13 ILR 69 460
Mobil Oil Iran Inc v Government of the Islamic Republic of Iran
(1987) 86 ILR 230 627
Mofaz, Re (2004) 128 ILR 709 489, 500, 689
Molefiv Principal Legal Adviser (1969) 39 ILR 415 441
Molvan v AG for Palestine [1948] AC 351 307
Molyneaux, Ex parte [1986] 1 WLR 331 72
Momcilovic v R [2011] HCA 34 59
Mondev International Ltd v United States of America (2002) 6
ICSID Reports 181; (2002) 125 ILR 98 59, 451, 614, 617, 619, 629
Monetary Gold (1953) 20 ILR 441 535
Monetary Gold Removed from Rome in 1943 (Italy v France, UK
and US), ICJ Reports 1954 p 19 535, 698, 723
Monnot (1903) 9 RIAA 232 559
Morguard v De Savoye [1990] 3 SCR 1077 485
Morris v People’s Republic of China, 478 F.Supp 2d 561 (SDNY,
2007) 505
Mortensen v Peters (1905–6) F (JC) 93 63, 67, 70
Morton (1929) 4 RIAA 428 550
Motorola Credit Corp v Uzan [2004] 1 WLR 113 484
MOX Plant (2001) 126 ILR 257 354
MTD Equity Sdn Bhd & MTD Chile SA v Chile Award (2004) 12
ICSID Reports 3 743
Decision on Annulment (2007) 13 ICSID Reports 500 615
Müller (1988) 88 ILR 570 664
Muller v Superintendent, Presidency Jail, Calcutta (1955) 22 ILR
497 609
Municipality of Västerås v Iceland [1999] NJA 821; (1999) 128 ILR
705 93
Munyeshyaka (1998) 127 ILR 134 467
Murray v Parkes [1942] 2 KB 123 435
(p. l) Murray v Schooner Charming Betsy, 6 US 64 (1804) 79–82
Musgrove v Toy [1891] AC 272 608
Mustafic & Nuhanovic v Netherlands (2011) LJN: BR 5388,
200.020.174/01 546
Musurus Bey v Gadban [1894] 2 QB 352 410
Mwenya, Ex parte [1960] 1 QB 241 210
Mytilineos v Serbia and Montenegro (2006) 16 ICSID Reports
567 717
N v B (1957) 24 ILR 941 61
N v Public Prosecutor of the Canton of Aargau (1953) 20 ILR
363 30
N Masthan Sahib v Chief Commissioner (1976) 49 ILR 484 227
Naim Molvan v AG for Palestine [1948] AC 351 301, 459, 462
Namibia See Legal Consequences for States
Namibia (1994) 100 ILR 257 164
National City Bank of New York v Republic of China, 348 US 356
(1955) 495
National Union of Belgian Police (1975) 57 ILR 262 646
Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No
4 132, 190, 210, 454
Naulilaa (1928) 2 RIAA 1011 545, 586, 587
Navigational and Related Rights (Costa Rica v Nicaragua), ICJ
Reports 2009 p 213 214, 338, 379
Nebraska v Iowa, 143 US 359 (1892) 240
Neer (1926) 3 ILR 213; (1926) 6 RIAA 60 556, 613
Neger v Hesse (1969) 52 ILR 329 492
Netherlands v Short (1990) 29 ILM 1375 483
Ng v Canada (1993) 98 ILR 497 483
Nicaragua see Military and Paramilitary Activities in and against
Nicaragua
Nicolo v Creni (1952) 19 ILR 145 205
Nicolo, Re [1989] Rec Lebon 748 94
Nixon v United States, 506 US 224 (1993) 84
NML Capital Ltd v Republic of Argentina [2011] 3 WLR
273 496, 501
Noble Ventures Inc v Romania (2005) 16 ICSID Reports
210 122, 619, 631
Nonis v Federation of Seamen (1930) 5 ILR 45 163
Nordmeer, The (1946) 13 ILR 401 526
North Atlantic Fisheries (1910) 1 HCR 141 35, 261
North Sea Continental Shelf (Federal Republic of Germany v
Netherlands; Federal Republic of Germany v Denmark), ICJ
Reports 1969 p
3 24, 26, 28, 32, 36, 38, 45, 128, 205, 271, 283, 286–
8, 291, 292, 368, 420, 594
North Transylvania Nationality (1970) 40 ILR 43 435
Northern Cameroons (Cameroon v UK), Preliminary Objections,
ICJ Reports 1963 p 15 38, 150, 582, 693, 697, 724
Norwegian Shipowners (1922) 1 ILR 189; (1922) 1 RIAA
309 45, 46, 51, 55, 613, 623
Nottebohm (Liechtenstein v Guatemala) Preliminary Objections,
ICJ Reports 1953 p 111 40, 721, 725, 729
Second Phase, ICJ Reports 1955 p
4 29, 30, 53, 54, 457, 511, 517, 518, 520, 521, 527, 531, 702, 706
Noyes (1933) 6 RIAA 308 551
Nuclear Tests (Australia v France), ICJ Reports 1974 p
253 27, 335, 353, 354, 417, 450, 576, 583, 699, 727
Nuclear Tests (New Zealand v France), ICJ Reports 1974 p
457 335, 353, 417, 583, 699
Nulyarimma v Thompson (1999) 96 FCR 153 58
Nusselein v Belgian State (1950) 17 ILR 136 462
NV Verenigde Deli-Maatschappijen v Deutsch-Indonesische
Tabak-Handelsgesellschaft mbH (1959) 28 ILR 16 625
Nykomb Synergetics AB v Latvia (2003) 11 ICSID Reports
153 622
Nyugat, The (1956) 24 ILR 916 526
Nzie v Vassah (1978) 74 ILR 519 410, 411
Oakland Truck Sales Inc v US (1957) 24 ILR 952 553
Öcalan v Turkey [2005] ECtHR 46221/99 483
Occidental Exploration & Production Co v Ecuador [2006] QB
432 73
Occidental Exploration v Ecuador (2004) 12 ICSID Reports 54;
(2004) 138 ILR 35 60, 617
Oil Platforms (Iran v US) Preliminary Objections, ICJ Reports 1996
p 803 695
Merits, ICJ Reports 2003 p 161 106, 701, 749, 750
(p. li) Ominayak and the Lubicon Lake Band v Canada (1990) 96
ILR 667 648, 650
Opel Austria v Council of the EU (1997) 113 ILR 295 368
Open Door v Ireland [1992] ECtHR 14234/88 665
Opinion 1/76, Draft Agreement Establishing a European Laying-up
Fund for Inland Waterway Vessels [1977] ECR 741 188
Opinion 2/91, Convention No 170 of the International Labour
Organization concerning Safety in the Use of Chemicals at Work
[1993] ECR I-1061 188
Opinion 1/94, Competence of the Community to Conclude
International Agreements concerning Services and the Protection
of Intellectual Property—Article 228 (6) of the EC Treaty [1994]
ECR I-5267188
Opinion 2/94, Re Accession of the European Community to the
Convention for the Protection of Human Rights and Fundamental
Freedoms [1996] ECR I-1759; (1996) 108 ILR 225 180, 670
Oppenheimer v Cattermole [1976] AC 249 76, 524
Orinoco Steamship Co (1910) 1 HCR 228 45
Oscar Chinn (1934) PCIJ Ser A/B No 63 621
Oseri v Oseri (1952) 17 ILR 111 519
Ottoman Debt (1925) 1 RIAA 529 426, 431
Ousset (1954) 22 ILR 312 559
Outjen v Central Leather Co, 246 US 297 (1918) 85
Ownership and Jurisdiction over Off shore Mineral Rights, Re
(1967) 43 ILR 93 272
Owusu v Jackson (C-281/02) [2005] ECR I-1383 (ECJ) 474
P (GE) (An infant), Re [1964] 3 All ER 977 460
P (No 1), Re [1998] 1 FLR 625 410
P (No 2), Re [1998] 1 FLR 1027 407
Pan American Energy v Argentina, 27 July 2006 631
Pan-American World Airways Inc v Department of Trade [1976] 1
Lloyd’s Rep 257 63
Panevezys–Saldutiskis Railway (1939) PCIJ Ser A/B No
76 53, 437, 713, 714
Paniagua Morales v Guatemala (‘White Van Case’), IACtHR C/23,
25 January 1996 667
Paquete Habana, 175 US 677 (1900) 24, 25, 41
Parent v Singapore Airlines & Civil Aeronautics Administration
(2003) 133 ILR 264 159
Paris de Bollardière [1975] Rec Lebon 423; (1975) 74 ILR 95 103
Parking Privileges for Diplomats (1971) 70 ILR 396 23, 24, 397
Parlement Belge, The [1880] 4 PD 129 63
Passage through the Great Belt (Finland v Denmark) Order of 29
July 1991, ICJ Reports 1991 p 12 355
Order of 10 September 1992, ICJ Reports 1992 p 348 354
Passport Seizure (1972) 73 ILR 372 459
Peat Marwick v Davison (1997) 104 ILR 526 43
Pellat (1929) 5 RIAA 534 547
Penati, Re (1946) 13 ILR 74 460
Penza, The, 277 F 91 (EDNY, 1931) 161
People of Saipan v US Department of the Interior, 302 F.2d 90 (9th
Cir, 1974) 78
Perle (1954) 21 ILR 161 704
Peter Pázmány University (1933) PCIJ Ser A/B No
61 40, 430, 528, 530, 535, 624
Petit T [1973] Rec Lebon 921 103
Petrobart Ltd v Kyrgyz Republic Award I (2003) 13 ICSID Reports
335 617
Award II (2005) 13 ICSID Reports 387 619, 743
Petrochemical v The M/T Stolt Sheaf, 860 F.2d 551 (2nd Cir,
1988) 161
Philadelphia-Girard National Bank (1929) 8 RIAA 67 559
Philippine Admiral, Re [1977] AC 373 490
Philippine Embassy Bank Account (1977) 65 ILR 146 396, 501
Phillips Petroleum Co, Iran v Iran, National Iranian Oil Co (1982)
70 ILR 483 388
Phosphates in Morocco (1938) PCIJ Ser A/B No 74 541, 542, 729
Pine Valley Developments Ltd v Ireland [1991] ECtHR
12742/87 665
Pinochet See R v Bow Street Metropolitan Stipendiary Magistrate
Pinson (1928) 5 RIAA 327 551, 553, 577
Pious Funds of the Californias (1902) 9 RIAA 11 40
Piracy Jure Gentium, Re [1934] AC 586 56, 302
(p. lii) Pisani Balestra di Mottola, Re (1969) 71 ILR 565 174
Pittacos v État Belge (1964) 45 ILR 24 431
Police v Labat (1970) 70 ILR 191 636
Polish Postal Service in Danzig (1925) PCIJ Ser B No
11 5, 40, 381
Polites v Commonwealth (1945) 70 CLR 60; (1945) 12 ILR
208 70, 610
Pope & Talbot v Canada Ruling on Interim Measures (2000) 122
ILR 293 368, 622
Interim Award (2000) 7 ICSID Reports 69 62
Award on Merits (2001) 7 ICSID Reports 102 617
Award on Damages (2002) 7 ICSID Reports 148 618
Porru v Food and Agriculture Organization (1969) 71 ILR 240 174
Portugal v Germany (1930) 5 ILR 150 623
Post Office v Estuary Radio Ltd (1968) 2 QB 740 63
Poznanski v Lentz & Hirschfeld (1924) 2 ILR 228 136
Prefect of La Gironde v Mahmedi [1992] Rec Lebon 446; (1992)
106 ILR 204 96, 103
Presbyterian Church of Sudan v Talisman Energy Inc, 582 F.3d
244 (2nd Cir, 2009) 82, 475, 656
President of the Council v Marcović, Corte di Cassazione, 5 June
2002, Judgment No 8157; (2002) 128 ILR 652 107
Prince Salm-Salm v Netherlands (1957) 24 ILR 893 624
Prince Sliman Bey v Minister for Foreign Affairs (1959) 28 ILR
79 553
Prince v South Africa (2004) AHRLR 105 666
Princess Zizianoff v Kahn and Bigelow (1927) 4 ILR 384 412
Prisoners of War—Eritrea’s Claim 17 (2003) 26 RIAA 23 424
Private Servant (1971) 71 ILR 546 397
Procurator General v D (1948) 15 ILR 70 211
Propend Finance Pty Ltd v Sing [1997] EWCA Civ 1433; (1997)
111 ILR 611; 408, 410, 494
Prosecutor v Akayesu (ICTR-96-4-T) 677
Prosecutor v Ayyash (STL-11-01/I/PTJ) 686
Prosecutor v Barayagwiza (ICTR-97-19-AR72) 677
Prosecutor v Blaškić (1997) 110 ILR 607 493, 500, 501
Prosecutor v Furundžija Trial Chamber II (1998) 38 ILM 317 26
Appeals Chamber (2002) 121 ILR 213 468
Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (ICC01/04-01/07-949) 680
Prosecutor v Kanyabashi (ICTR-96-15-T) 764
Prosecutor v Karadzić (IT-95-5/18) 676
Prosecutor v Lennart A [1988] NJA 572 102
Prosecutor v Milosević (IT-99-37-PT) 676
Prosecutor v Mladić (IT-09-92) 676
Prosecutor v Nahimana (ICTR-99-52-T) 677
Prosecutor v Nezmi A [1989] NJA 131 102
Prosecutor v Omar Al Bashir (ICC-02/05-01/09) 500
Prosecutor v Simić (1999) 116
Prosecutor v Sulayman F [1992] NJA 532 102
Prosecutor v Tadić (IT-94-1) Jurisdiction (1995) 105 ILR
419 186, 675, 678, 685, 764
Appeal (1999) 124 ILR 61 41
Prosecutor v Taylor (2004) 128 ILR 239 500
Protopapa v Turkey [2009] ECtHR 16084/90 164
Public Prosecutor v Drechsler (1946) 13 ILR 73 460
Public Prosecutor v DS (1958) 26 ILR 209 458
Public Prosecutor v Günther B and Manfred E (1970) 71 ILR
247 459
Public Prosecutor v JBC (1984) 94 ILR 339 411
Public Prosecutor v L (1951) 18 ILR 206 462
Public Prosecutor v Orhan Olmez (1987) 87 ILR 212 410
Public Trustee v Chartered Bank of India, Australia and China
(1956) 23 ILR 687 700
Pugh (1933) 3 RIAA 1439 544, 557
Pulau Batu Puteh See Sovereignty over Pedra Branca/Pulau Batu
Puteh
Pulau Ligitan/Sipadan See Sovereignty over Pulau Ligitan and
Pulau Sipidan
Pulp Mills on the River Uruguay (Argentina v Uruguay), ICJ
Reports 2010 p 14 26, 32, 43, 170, 338, 343, 354, 355, 561, 570
Qatar v Bahrain, See Maritime Delimitation and Territorial
Questions
Quaglia v Caiselli (1952) 19 ILR 144 205
(p. liii) Queensland v Commonwealth (1975) 135 CLR 337 272
Queensland v Commonwealth (1989) 90 ILR 115 117
Question of Jaworzina (1923) PCIJ Ser B No 8 43
Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libya v
US) Preliminary Objections, ICJ Reports 1998 p 115 699
R (Abassi) v Secretary of State for Foreign and Commonwealth
Affairs [2002] EWCA Civ 1598 72, 76
R (Alamieyeseigha) v Crown Prosecution Service [2005] EWHC
2704 (Admin) 491, 492
R (Al Rawi) v Foreign Secretary [2006] EWCA Civ 1279; [2008]
QB 289 72, 700
R (Al-Fawwaz) v Governor of Brixton Prison [2001] 1 AC 556 65
R (Al-Haq) v Secretary of State for Foreign and Commonwealth
Affairs [2009] EWHC 1910 68
R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC
332 56, 73
R (Al-Saadoon) v Secretary of State of Defence [2009] EWCA Civ
7 69
R (Al-Skeini) v Secretary of State for Defence [2004] EWHC 2911
(Admin) 65 [2007] 3 WLR 33; [2008] 1 AC 153 66, 459, 652
R (B and Others) v Secretary of State [2005] QB 643 412
R (Campaign for Nuclear Disarmament) v Prime Minister [2002]
EWHC 2777 (Admin); (2002) 126 ILR 727 67, 73
R (Corner House Research) v Director of the Serious Fraud Office
[2009] 1 AC 756 74
R (European Roma Rights Centre) v Immigration Officer at Prague
Airport [2005] 2 AC 1 56, 67, 68, 74, 609
R (Gentle) v Prime Minister [2008] 1 AC 1356 72
R (Hirst) v London Northern District Coroner [2005] 1 AC 400 66
R (Jackson) v Attorney General [2006] 1 AC 262 63
R (Kibris Türk Hava Yollari & CTA Holidays) v Secretary of State
for Transport [2009] EWHC 1918 (Admin) 160
R (Mohamed) v Secretary of State for Foreign and Commonwealth
Affairs [2008] EWHC 2048 (Admin)69
R (Quark Fishing Ltd) v Secretary of State for Foreign and
Commonwealth Affairs [2006] 1 AC 529 73
R (R) v Durham Constabulary [2005] 2 All ER 369 74
R (Sultan of Pahang) v Secretary of State [2011] EWCA Civ
616 157
R (Ullah) v Special Adjudicator [2004] UKHL 26 609
R v Asfaw [2008] 1 AC 1061 65, 66
R v Bow Street Magistrate, ex parte Pinochet (No 1) [2000] 1 AC
61 71, 75, 76
R v Bow Street Metropolitan Stipendiary Magistrate, ex parte
Pinochet Ugarte (No 3) [2000] 1 AC
14741, 468, 493, 500, 687, 688
R v Casement [1917] 1 KB 98 460
R v Commissioner of Correctional Services, ex parte Fitz Henry
(1976) 72 ILR 63 438
R v Cox [1968] 1 All ER 410 459
R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC
326 63, 74
R v Director of Public Prosecutions, ex parte Schwartz (1976) 73
ILR 44 424, 425
R v Governor of Brixton Prison, ex parte Soblen [1963] 2 QB
283 609
R v Horseferry Road Magistrates’ Court, ex parte Bennett [1993] 3
WLR 90; [1994] 1 AC 42 483, 609
R v Immigration Appeal Tribunal, ex parte Shah [1999] 2 AC
629 66
R v International Trustee for the Protection of Bondholders AG
[1937] AC 500 628
R v Iraq (1994) 116 ILR 664 497
R v Jones (Margaret) [2005] QB 259 68, 71
[2007] 1 AC 136 58, 68, 69–70, 72
R v Kent Justices, ex parte Lye [1967] 2 QB 153 263
R v Keyn (‘The Franconia’) (1876) 2 Ex D 63 56, 62, 67, 457
R v Khan [1997] AC 588 73
R v Lambeth Justices, ex parte Yusufu (1985) 88 ILR
323 399, 401
R v Lynch [1903] 1 KB 444 460
R v Lyons [2003] 1 AC 976 63, 64, 67
R v Madan [1961] 2 QB 1 410
R v Martin [1956] 2 QB 272 465
(p. liv) R v Minister of Agriculture, Fisheries and Food, ex parte SP
Anastasiou (Pissouri) Ltd (C-432/92) (1994) 100 ILR
257 156, 163, 164, 368
R v Minister of Agriculture, Fisheries and Food; ex parte SP
Anastasiou (Pissouri) Ltd (C-219/98) [2000] ECR I-5268 164
R v Ministry of Defence, ex parte Smith [1996] QB 517 73
R v Secretary of State for Foreign and Commonwealth Affairs, ex
parte Everett [1989] QB 811 72
R v Secretary of State for the Environment, Transport and the
Regions, ex parte International Air Transport Association [2000] 1
Lloyd’s Rep 242 65
R v Secretary of State for the Home Department, ex parte Launder
[1997] 1 WLR 839 74
R v Secretary of State for the Home Department, ex parte Brind
[1991] 1 AC 696 64, 66
R v Secretary of State for the Home Department, ex parte
Johnson [1999] QB 1174 75
R v Secretary of State for the Home Department, ex parte Thakrar
[1974] QB 684 68, 69, 70
R v Seven Named Accused (2004) 127 ILR 232 481
R v Turnbull, ex parte Petroff (1979) 52 ILR 303 403
Racke v Hauptzollamt Mainz (1998) 117 ILR 399 368, 393
Radilla-Pacheco v Mexico, IACtHR C/209, 23 November 2009 376
Radio Corp of America v National Government of China (1935) 8
ILR 26 629
Radiodiffusion française [1950] Rec Lebon 652 104
Rahimtoola v Nizam of Hyderabad [1958] AC 379 494
Rainbow Warrior UN Secretary-General’s Opinion (1986) 74 ILR
241 574, 575, 719
Award (1990) 82 ILR 499; (1990) 20 RIAA
215 564, 570, 576
Ram Narain v Central Bank of India (1951) 18 ILR 207 460
Rankin v Iran (1987) 82 ILR 204 551
Rann of Kutch (1968) 50 ILR 2; (1968) 17 RIAA
1 219, 229, 239, 720
Raptis v South Australia (1977) 69 ILR 32 261
Rasul v Bush, 542 US 466 (2004) 58, 209, 210
Rau, Re (1930) 6 ILR 251 523
Reel v Holder (1981) 74 ILR 105 125
Refco v Eastern Trading Co [1999] 1 Lloyd’s Rep 159
(CA) 484, 485
Reference re Secession of Quebec (1998) 115 ILR
536 41, 142, 145
Regele v Federal Ministry (1958) 26 ILR 544 406
Reineccius v Bank of International Settlements (2003) 140 ILR
1 122
Relations Treaty between the FRG and GDR, 36 BVerfGE 1
(1973); (1973) 78 ILR 149 106
Reparation for Injuries Suffered in the Service of the United
Nations, ICJ Reports 1949 p 174 38, 40, 169, 179–
81, 187, 188, 252, 447, 580, 710
Republic of ‘A’, Embassy Bank Account (1988) 77 ILR 489 396
Republic of Argentina v City of New York, 25 NY.2d 252
(1969) 413
Republic of Argentina v Weltover, 504 US 607 (1992) 495, 496
Republic of Bolivia v Indemnity Mutual Marine Assurance Co
[1909] KB 785 302
Republic of Croatia v GiroCredit Bank AG der Sparkassen (1996)
36 ILM 1520 430
Republic of Croatia v Republic of Serbia [2009] EWHC 1559 430
Republic of Ecuador v ChevronTexaco Corp, 376 F.Supp 2d 334
(SDNY, 2005) 87
Republic of Ecuador v Occidental Exploration & Production [2007]
EWCA Civ 656 65
Republic of Haiti v Duvalier [1990] 1 QB 202 484, 495
Republic of Italy v Hambros Bank [1950] Ch 314 73
Republic of Panama v Republic National Bank of New York, 681
F.Supp 1066 (SDNY, 1988) 161
Republic of Panama v Southern International Bank, 682 F.Supp
1144 (SD Fla, 1988) 161
Republic of Vietnam v Pfizer Inc, 556 F.2d 892 (8th Cir, 1977) 161
Republican Party of Russia v Russia [2011] ECtHR 12976/07 664
(p. lv) Request for Interpretation of the Judgment of 15 June 1962
in the Case concerning the Temple of Preah Vihear (Cambodia v
Thailand) Order of 18 July 2011 209
Judgment (pending) 324
Request for Interpretation of the Judgment of 31 March 2004 in
the Case concerning Avena and Other Mexican Nationals (Mexico
v US) Provisional Measures, ICJ Reports 2008 p 311 547
Merits, ICJ Reports 2009 p 3 413
Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, ICJ Reports 1951 p 15 730
Responsibilities and Obligations of States Sponsoring Persons
and Entities with Respect to Activities in the Area, ITLOS Case No
17 (Advisory Opinion, 1 February 2011) 26, 28, 353
Restitution of Households Effects Belonging to Jews Deported
from Hungary (Germany) (1965) 44 ILR 301 132
Restrepo v McElroy, 369 F.3d 627 (2nd Cir, 2004) 80
Revere Copper & Brass v Overseas Private Investment Corp
(1978) 56 ILR 258 627, 630
Rey v Government of Switzerland [1999] 1 AC 54 (PC) 65
Ricaud v American Metal Co, 246 US 304 (1918) 85
Right of Passage over Indian Territory (Portugal v India)
Preliminary Objections, ICJ Reports 1957 p
12537, 39, 373, 724, 729
Merits, ICJ Reports 1960 p
6 36, 132, 141, 214, 218, 220, 344, 419, 428, 582, 694, 729
Rights of Access to Danzig Harbour (1931) PCIJ Ser A/B No
43 450
Rights of Nationals of the United States of America in Morocco
(France v US), ICJ Reports 1952 p
17630, 132, 135, 218, 381, 382
Rigmor, The [1942] NJA 65; 10 ILR 240 93
Rio Tinto Zinc Corp v Westinghouse [1978] AC 547 486
Rizaeff Frères v Soviet Mercantile Fleet (1927) 40 ILR 84 504
Rizzo, Re (1955) 22 ILR 317 559
Roach and Pinkerton (Case 9647), IACHR 3/87 27 March
1987 662
22 September 1987 595
Robert E Brown (1923) 6 RIAA 120 554, 619, 714
Roberts (1926) 3 ILR 227; (1926) 6 RIAA 77 556, 613
Robinson v Secretary-General of the UN (1952) 19 ILR 494 636
Rocha v United States, 288 F.2d 545 (9th Cir, 1961) 462
Rogdai, The, 276 F.294 (ND Cal, 1920) 161
Roper (1927) 4 RIAA 145 544
Rose Mary, The (1953) 20 ILR 316 68
Rothmann v Austria and Hungary (1928) 4 ILR 254 519
Rottman v Freistaat Bayern (C-135/08), Judgment of 2 March
2010 525
Roumania v Germany (1927) 4 ILR 542 35
Roussety v The Attorney General (1967) 44 ILR 108 70
Royal Bank of Scotland plc v Hicks & Gillette [2010] EWHC 2579
(Ch) 484, 485
RSFSR v Cibrario, 235 NY 255 (1923) 161
Rudloff (1905) 9 RIAA 244 628
Rudolf Hess (1980) 90 ILR 386 700
Rumeli Telecom v Kazakhstan, 29 July 2008 617
Rundqvist v Montan [1892] NJA 377 102
Russel v Societa Immobiliare Soblim, Italian Constitutional Court,
18 June 1979, Judgment No 48; (1979) 78 ILR 101 90
Russell & Co v Cayzer, Irvine Ltd [1916] 2 AC 298 472
Russian Indemnity (1912) 11 RIAA 421 557, 564
Russian Volunteer Fleet v United States, 282 US 481 (1931) 161
Rustomjee v R [1876] 2 QB 69 63
Ryabikina v Russia [2011] ECtHR 44150/04 665
Ryan v Friction Dynamics [2001] CP Rep 75 484
S v Ebrahim (1991) 95 ILR 417 483
Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan
[2002] EWCA Civ 1643 491, 501
Saipem SpA v Bangladesh, 30 June 2009 619
Salaman v Secretary of State in Council of India [1906] 1 KB
613 75
Salem (1932) 6 ILR 188 520
Salimoff v Standard Oil Co of New York, 186 NE 679 (1933); 262
NY 220 (1933) 152, 162
(p. lvi) Salomon v Commissioners of Customs and Excise [1967] 2
QB 116 66
Saluka v Czech Republic (2006) 15 ICSID Reports
274 616, 618, 622
Salvador Commercial Co (1902) 15 RIAA 455 543
Samantar v Yousuf, 130 S.Ct 2278 (2010) 81, 494, 505
Sammut v Strickland [1938] AC 678 226
San Lorenzo Title & Improvement Co v City Mortgage Co (1932) 6
ILR 113 226, 240
Sanchez-Llamas v Oregon, 548 US 311 (2006) 78
Sandline International v Papua New Guinea (1998) 117 ILR
552 55, 122
Sandström v The Crown [1973] NJA 423 102
Sapphire International Petroleum Ltd v National Iranian Oil Co
(NIOC) (1963) 35 ILR 136 628
Sarei v Rio Tinto, 456 F.3d 1069 (9th Cir, 2006) 296
Sarei v Rio Tinto (9th Cir, Docket No 02-56256/02-56390/0956381, 25 October 2011) 82, 83
Sarropoulos v Bulgarian State (1927) 4 ILR 246263 35, 551, 700
Saudi Arabia v Arabian American Oil Co (Aramco) (1958) 27 ILR
117 623, 628
Saudi Arabia v Nasser [2000] EWCA Civ 1114 497
Saudi Arabia v Nelson, 507 US 349 (1993) 493, 496, 497, 505
Schempp (C-403/03) [2005] ECR I-6421 525
Schinz v High Court of Zurich (1926) 3 ILR 32 162
Schmeichler-Pagh (1965) 92 JDI 689 710
Schmidt v Home Secretary (1997) 2 IR 121 493
Schneider v Kissinger, 412 F.3d 190 (DC Cir, 2005) 84
Schreiber v Germany (2002) 216 DLR (4th) 513 487, 498
Scimet v African Development Bank (1997) 128 ILR 582 174, 175
Scotia, The, 81 US 170 (1871) 41
SD Myers Inc v Canada (2000) 8 ICSID Reports 18; (2000) 121
ILR 72 547, 573, 619, 629
Seabed and Subsoil of the Continental Shelf Offshore
Newfoundland, Re (1984) 86 ILR 593 270
Secession of Austria (1954) 21 ILR 175 436
Secretary of State for India v Sardar Rustam Khan (1941) 10 ILR
98 208
Sedco Inc v NIOC (1987) 84 ILR 483 706
Sedelmayer v Russian Federation, 1 July 2011 93
Self-Determination of the Comoros Islands, Re, 30 December
1975 Rec 41; (1975) 74 ILR 91 89
Selwyn (1903) 9 RIAA 380 623
Sengupta v India (1982) 64 ILR 352 497
Serbian Loans (1929) PCIJ Ser A No 20 53–5
Serhassan Pirates, The (1845) 2 Wm Rob 354 302
Serra v Lapin, 600 F.3d 1191 (9th Cir, 2010) 80, 81
Serventi, Re (1921) 1 ILR 294 162
SGS Société Générale de Surveillance SA v Philippines (2004) 8
ICSID Reports 518; 2004 129 ILR 4444 55, 122, 631, 633
SGS Société Générale de Surveillance SA v Pakistan (2003) 8
ICSID Reports 406 631
Shaffer v Singh, 343 F.3d 324 (DC Cir, 1965) 410
Sharon & Yaron (2003) 127 ILR 110 467, 500, 688, 689
Shaw v Shaw [1979] FLR 62 396
Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd (No 2)
[1988] 1 All ER 116 175, 404
Shimshon Palestine Portland Cement Co Ltd v AG (1950) 17 ILR
72 431
Short v Islamic Republic of Iran (1987) 82 ILR 148 551, 609
Shufeldt (1930) 5 ILR 179; (1930) 2 RIAA 1081 51, 623, 627, 628
Siemens AG v Argentina (2007) 14 ICSID Reports 518 617, 628
Sierra Leone Telecommunications Co Ltd v Barclays Bank [1998]
2 All ER 821 158
Silver v UK (1983) 72 ILR 334 664
Sindicato UIL v Bari Institute (1986) 87 ILR 37 174
Siskina (Owners of cargo lately laden on board) v Distos
Compania Naviera SA [1979] AC 210 485
Slouzak Minority in Teschen (Nationality) (1940) 11 ILR 179 435
(p. lviii) Smith v Office National de l’Emploi (1971) 69 ILR 276 397
Social and Economic Rights Action Centre and Anor v Nigeria
(2001) AHRLR 60 656
Société Despa et Fils v USSR (1931) 6 ILR 37 163
Société Nachfolger Navigation Co Ltd [1987] Rec Lebon 319;
(1987) 89 ILR 3 104
Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987]
AC 871 (PC) 485
Société Sapvin [1988] Rec Lebon 133; (1988) 89 ILR 6 103
Socobel v Greek State (1951) 18 ILR 3 60
Socony Vacuum Oil Co (1954) 21 ILR 55 132, 152
Soering v UK (1989) 98 ILR 270 483, 651, 653
Sokoloff v National City Bank of New York, 239 NY 158
(1924) 152, 162
Sola Tiles Inc v Iran (1987) 83 ILR 460 706
Sopron-Köszeg Railway (1929) 2 RIAA 961 432
Sorensen and Jensen (1991) 89 ILR 78 265
Sorkis v Amed (1950) 17 ILR 101 228
Sosa v Alvarez-Machain. 542 US 692 (2004) 41, 58, 69, 81–
3, 475, 476
Sossetti v Multinational Force and Observers (1994) 128 ILR
640 174
Soufraki v United Arab Emirates, 5 June 2007 520
South Moluccas v The Netherlands New Guinea (1954) 21 ILR
48 162
South West Africa (Ethiopia v South Africa; Liberia v South Africa)
Preliminary Objections, ICJ Reports 1962 p
319 38, 39, 179, 206, 374, 381, 417, 576, 581, 694, 697
Second Phase, ICJ Reports 1966 p
3 46, 569, 582, 591, 595, 644–6
Southern Bluefin Tuna (Australia and New Zealand v Japan)
Provisional Measures (1999) 117 ILR 148330, 353, 355
Jurisdiction (2000) 119 ILR 508 323
Southern Pacific Properties (Middle East) Ltd v Arab Republic of
Egypt (1988) 3 ICSID Reports 131 53
Sovereignty over Certain Frontier Land (Belgium/Netherlands), ICJ
Reports 1959 p 209 217, 225–7, 231, 233
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks
and South Ledge (Malaysia v Singapore), ICJ Reports 2008 p
12 40, 219, 222, 230, 231, 233, 235, 419, 421
Sovereignty over Pulau Ligitan and Pulau Sipidan
(Indonesia/Malaysia), ICJ Reports 2002 p
625 219, 222, 225, 226, 368, 380, 381
Soviet Government v Ericsson (1921) 1 ILR 54 162
Soviet Marriages case (1925) 3 ILR 31 162
Soviet Representation in Czechoslovakia (1925) 3 ILR 60 162
Spanish Zone of Morocco (1925) 2 RIAA 615 545, 553, 557, 564
Spaulding (1957) 24 ILR 452 710
Special Representative of State of the City of the Vatican v
Pieciukiewicz (1982) 78 ILR 120 124, 496
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 472
SS Lea Lott, The (1959) 28 ILR 652 526
SS Lotus, The (1927) PCIJ Ser A No
10 5, 25, 40, 43, 458, 463, 479
SS Wimbledon, The (1923) PCIJ Ser A No 1,
25 9, 25, 30, 43, 51, 214, 341, 439, 450, 568, 572, 706
Stafford Allen & Sons, Ltd v Pacific Steam Navigation Co [1956] 2
All ER 716 208
Stahel v Bastid (1971) 75 ILR 76 174
Standard Chartered Bank v International Tin Council [1987] 1
WLR 641 173
Standard Vacuum Oil Co (1959) 30 ILR 168 152, 613
Starrett Housing Corp v Iran (1983) 85 ILR 349 621, 706
State (Duggan) v Tapley [1952] IR 62 56
State of Arizona v Willoughby, 862 P.2d 1319 (Az Sup Ct,
1995) 458
Status of Eastern Carelia (1923) PCIJ Ser B No 5 39, 731
Steel v UK [1998] ECtHR 24838/94 665
Steiner and Gross v Polish State (1928) 4 ILR 291 5
Stevenson (1903) 9 RIAA 385 703
Stockë v Germany (1991) 95 ILR 350 483
Straub (1953) 20 ILR 228 704
Studer (US) v Great Britain (1925) 6 RIAA 149 553
(p. lviii) Suarez, Re (1944) 12 ILR 412 410
Sudan Human Rights Organisation & Centre on Housing Rights
and Eviction v Sudan, Comm 279/03, 296/05, 28th ACHPR AAR
Annex (2009–10) 667
Suez, Sociedad General de Aguas de Barcelona
SA v Argentina, 30 July 2010 621
Sugar BV v Czech Republic, 12 April 2007 617
Sunday Times (1979) 58 ILR 490 664
Svenska Petroleum Exploration AB v Republic of Lithuania (No 2)
[2007] QB 886 490, 491, 496, 501
Swedish Engine Drivers’ Union v The State [1972]
Arbetsdomstolens Domar No 5 102
Swiss Confederation v German Federal Republic (No 1) (1958) 25
ILR 33 712
Taba (1988) 80 ILR 224 720
Tabar (1954) 20 ILR 211 621
Tabatabai (1983) 80 ILR 388 408
Tancredi, Re (1950) 17 ILR 203 436
Tangiora v Wellington District Legal Services Committee (1999) 24
ILR 570 640
Tas-Hagen and Tas (C-192/05) [2006] ECR I-10541 525
Tatchell v Mugabe (2004) 136 ILR 572 500, 689
TECMED v Mexico (2003) 10 ICSID Reports 130 615, 617, 618
Teheran Hostages See US Diplomatic and Consular Staff in
Teheran
Temple of Preah Vihear (Cambodia v Thailand) Preliminary
Objections, ICJ Reports 1961 p 17 371
Merits, ICJ Reports 1962 p 6 36, 217, 225, 239, 388, 419–
21, 535, 570
Tennyson, The (1918) 45 JDI 739 458
Tepe v Turkey [2003] ECtHR 27244/95 714
Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea, ICJ Reports 2007 p
659 219, 222, 283, 284, 287, 293, 295
Territorial Dispute (Libya/Chad), ICJ Reports 1994 p 6 227, 379
Territorial Jurisdiction of the International Commission of the River
Oder (1929) PCIJ Ser A No 23 339, 379, 384
Terrorist Attacks, Re, 538 F.3d 71 (2nd Cir, 2008) 494
Texaco Overseas Petroleum Co & California Asiatic Oil Co v
Government of the Libyan Arab Republic (1977) 53 ILR
389 570, 627, 628, 630, 632
Texas v Louisiana, 426 US 465 (1976) 261
Texas v White, 74 US 700 (1868) 162
Third Avenue Associates v Permanent Mission of Zaire to the UN,
988 F.2d 295 (2nd Cir, 1993) 397
Thai-Europe Tapioca Service Ltd v Government of Pakistan [1975]
3 All ER 961; [1975] 1 WLR 1485 71, 472
Thomas v Baptiste [2000] 2 AC 1 (PC) 63
Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 71
Tietz v People’s Republic of Bulgaria (1959) 28 ILR 369 397
Timberland Lumber Co v Bank of America, 549 F.2d 597 (9th Cir,
1976) 475, 479
Timurtas v Turkey [2000] ECtHR 23431/94 667
Togen Akiyama v The State (1963) 32 ILR 233 700
Tokios Tokelés v Ukraine Decision on Jurisdiction (2004) 11 ICSID
Reports 313 54, 628
Award, 26 July 2007 617
Tokyo Sanyo Boeki Co Ltd v Pakistan, 21 July 2006 504
Tomko v Republic of Cyprus, ILDC 834 (CY 2007) 205
Torres v State of Oklahoma (2004) 43 ILM 1227 78
Tradax Hellas SA v Albania (1996) 5 ICSID Reports 43 451
Trade Delegation at Warsaw of USSR v Maurycy Fajans (1928) 4
ILR 170 490
Trail Smelter (1938) 3 RIAA 1905; (1941) 9 ILR 315; (1941) 3
RIAA 1938; (1948) 9 ILR 315; 45, 59, 344, 353, 357, 561, 562
Treatment of Polish Nationals in the Danzig Territory (1932) PCIJ
Ser A/B No 44 52, 118
Trendtex Trading Corp v Central Bank of Nigeria [1977] QB
529 56, 67, 71, 490, 493
Tribble, Re (1953) 20 ILR 366 30
Triquet v Bath (1764) 3 Burr 1478 62
Trochel v State of Tunisia (1953) 20 ILR 47 553
Tsesis, The [1983] NJA 102
(p. lix) Tuck v Pan-American Health Organization, 668 F.2d 547
(DC Cir, 1981) 174
Tunisia/Libya See Continental Shelf (Tunisia/Libya)
Turner v Grovit [2002] 1 WLR 107 484, 485
Turner v Grovit (C-159/02) [2005] ECR I-3565 (ECJ) 474, 485
Turri (1960) 30 ILR 371 710
Twee Gebroeders, The (1800) 3 C Rob 162 256
Twycross v Dreyfus [1877] 5 Ch 605 494
UAE v Abdelghafar (1995) 107 ILR 626 496
Uganda Co (Holdings) Ltd v Government of Uganda [1979] 1
Lloyd’s Rep 481 71
Underhill v Hernandez, 168 US 250 (1897) 85
Union Bridge Co (1924) 6 RIAA 138 541
Union of Burma v Kotaro Toda (1965) 53 ILR 149 430
Union of India v Sukumar Sengupta (1990) 92 ILR 554 208
Unitas, The [1950] 2 All ER 219 526
United Communist Party of Turkey v Turkey (1998) 122 ILR
404 664
United Kingdom and Governor of Hong Kong [1993] Rec Lebon
267; (1993) 106 ILR 233 103, 104
US—Anti-Dumping and Countervailing Duties (China),
WT/DS379/AB/R, 11 March 2011 544
US Diplomatic and Consular Staff in Tehran (US v Iran), ICJ
Reports 1980 p 3 396, 551, 576, 585, 637
US, ex rel Reichel v Carusi, 157 F.2d 732 (3rd Cir, 1946); (1946)
13 ILR 119 436
US v 144, 774 Pounds of Blue King Crab, 410 F.3d 1131 (9th Cir,
2005) 322
US v 594, 464 Pounds of Salmon, More or Less, 687 F.Supp 525
(WD Wash, 1987) 322
US v Aluminium Co of America, 148 F.2d 416
(1945) 459, 463, 479
US v Alvarez-Machain, 504 US 655 (1992) 483
US v Anchor Line Ltd, 232 F.Supp 379 (SDNY, 1964) 533
US v Baker, 136 F.Supp 546 (SDNY, 1955) 459
US v Baker, 609 F.2d 134 (5th Cir, 1980) 459
US v Belmont, 301 US 324 (1937) 77
US v Burns and Rafay (2001) 124 ILR 298 483
US v Cadena, 585 F.2d 1252 (5th Cir, 1978) 307
US v California, 332 US 19 (1947) 272
US v California (1952) 57 ILR 54 261
US v California, 381 US 139 (1965) 261
US v Cameron, 888 F.2d 1279 (9th Cir, 1989) 322
US v Chen De Yian, 905 F.Supp 160 (SDNY, 1995) 471
US v Coplon and Gubitchev, 88 F.Supp 915 (SDNY, 1950) 178
US v Cortes, 588 F.2d 106 (5th Cir, 1979) 308
US v DeWeese, 352 F.2d 1267 (5th Cir, 1980) 459
US v F/V Taiyo Maru, 395 F.Supp 413 (D Me, 1975) 308
US v Flores, 289 US 137 (1933) 464
US v Friedland (1999) 120 ILR 417 493
US v Germany (1923) 2 ILR 367 35
US v Giffen, 326 F.Supp 2d 497 (SDNY, 2005) 87
US v Gonzales, 776 F.2d 931 (11th Cir, 1985) 308
US v Guinto (1990) 102 ILR 132 497
US v Inkley [1989] QB 255 (CA) 482
US v Lanza, 260 US 227 (1922) 61
US v Lin, 101 F.3d 760 (DC Cir, 1996) 471
US v Lo Gatto (1995) 114 ILR 555 413
US v Louisiana, 339 US 699 (1950) 272
US v Louisiana, 389 US 155 (1967); 394 US 11 (1969) 261
US v Makharadze, No F-1446-97 (DC Sup Ct) 411
US v Mann, 615 F.2d 669 (5th Cir, 1980) 459
US v Marino-Garcia, 679 F.2d 1373 (11th Cir, 1982) 308
US v Mendez-Casarez, 624 F.3d 233 (5th Cir, 2010) 459
US v Monroy, 614 F.2d 61 (5th Cir, 1980) 306
US v Ni Fa Yi, 951 F.Supp 42 (SDNY, 1997) 471
US v Postal, 589 F.2d 862 (5th Cir, 1979) 78, 306
US v Proceeds from Approximately 15,538 Panulirus Argus
Lobster Tails, 834 F.Supp 385 (SD Fla, 1993) 322
US—Restrictions on the Imports of Tuna (1991) 30 ILM 1594;
(1994) 33 ILM 839 325
US v Rezaq, 899 F.Supp 697 (DDC, 1995); 134 F.3d 1121 (DC Cir,
1998) 471
US v Ricardo, 619 F.2d 1124 (5th Cir, 1980) 459
US v Smith, 18 US 153 (1820) 302
(p. lx) US v Texas, 339 US 707 (1950) 272
US v Wang Kun Lue, 134 F.3d 79 (2nd Cir, 1997) 471
US v Watchmakers of Switzerland Information Center Inc, 133
F.Supp 40 (SDNY, 1955); 134 F.Supp 710 (SDNY, 1955) 479
US v Wheeler, 435 US 313 (1978) 61
US v Winter 509 F.2d 975 (5th Cir, 1975) 459
US v Wright Barker, 784 F.2d 161 (3rd Cir, 1986) 459
US v Yousef, 327 F.3d 56, 92 (2nd Cir, 2003) 80
US v Yunis (No 2) 681 F.Supp 896 (DDC, 1990) 461, 471
Upright v Mercury Business Machines Co, 213 NYS.2d 417 (App
Div NY, 1961) 161
Upton (1903) 63 ILR 211 623
Usón Ramírez v Venezuela, IACtHR C/207, 20 November
2009 665
Uzun v Germany [2010] ECtHR 35623/05 664
Valentine Petroleum & Chemical Corp v Agency for International
Development (1967) 44 ILR 79 627
Valeriani v Amuna Bekri Sichera (1934) 8 ILR 283 519
Van den Plas, Re (1955) 22 ILR 205 462
VEB Carl Zeiss Jena v Carl Zeiss Heidenheim (1965) 72 ILR
550 162
Velásquez Rodríguez v Honduras, IACtHR C/4, 21 July 1989;
(1989) 95 ILR 232 551, 552, 579, 656, 662, 664, 714
Vereano (1957) 24 ILR 464 710
Verlinden v Central Bank, 461 US 480 (1983) 497
Veysi Dag v Secretary of State (2001) 122 ILR 529 154, 158
Victoria v Commonwealth (1996) 187 CLR 416 117
Victory Transport Incorporation v Comisaria General de
Abastecimientos y Transportes, 336 F.2d 354 (2nd Cir, 1964) 491
Vienna Convention on Consular Relations (Paraguay v US),
Provisional Measures, ICJ Reports 1998 p 248 413, 549
Vigoureux v Comité des Obligataires Danube-Save-Adriatique
(1951) 18 ILR 1 122
Viveash v Becker (1814) 3 M & S 284 70
Vivendi v Argentina
Award I (2000) 5 ICSID Reports 296 717
Decision on Annulment (2002) 6 ICSID Reports 340 632
Award II, 20 August 2007 617
Volga, The (Russia v Australia) (Prompt Release) (2002) 126 ILR
433 310
Von Hannover v Germany [2004] ECtHR 59320/00 97
Waddington v Miah [1974] 1 WLR 683 636
Waite and Kennedy v Germany (1999) 118 ILR 121 175, 183
Walker v Baird [1892] AC 491 63
Wall See Legal Consequences of the Construction of a Wall
Walter Fletcher Smith (1927) 2 RIAA 913 570
Wal-Wal Incident (1935) 3 RIAA 1657 557
Wanderer, The (1921) 6 RIAA 177 556
Wang v Switzerland, ILDC 90 (CH 2004) 162
Warenzeichenverband Regekungstechnik eV v Ministry of Trade
and Industry (1975) 77 ILR 571 163
Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi,
ICC-01/11, Pre-Trial Chamber I, 27 June 2011 500
Waste Management Inc v United Mexican States (2002) 41 ILM
1315; (2002) 132 ILR 146 35, 59
Waste Management (No 2) v Mexico Decision on Preliminary
Objections (2004) 6 ICSID Reports 538 717
Award (2004) 11 ICSID Reports
361 615, 617, 618, 628, 629, 632
Way (1928) 4 RIAA 391 543, 544
Weidner v International Telecommunications Satellite Organization
382 A.2d 508 (DC, 1978) 174
Weinberger v Rossi, 456 US 25 (1982) 80
Weiss v Inspector-General (1958) 26 ILR 210 459
Wena Hotels Ltd v Egypt (2000) 6 ICSID Reports 89 617, 623
West Rand Central Gold Mining Co v R [1905] 2 KB
391 56, 67, 69, 70, 73, 431
Westchester County v Ranollo, 67 NYS.2d 31 (City Ct Ranollo,
1946) 178
Western Sahara, ICJ Reports 1975 p
12 218, 220, 221, 228, 237, 248, 646, 647, 730
Westhold Corp (1953) 20 ILR 266 706
(p. lxi) Westinghouse Electric Corp Uranium Contract Litigation
(Nos 1& 2), Re [1978] AC 547 65, 157
Westland Helicopters v Arab Organization for Industrialization &
Others (1989) 80 ILR 595 186
Westland Helicopters Ltd v Arab Organization for Industrialization
[1995] 2 WLR 126 192
Westminster City Council v Government of the Islamic Republic of
Iran [1986] 3 All ER 284 403
Whaling in the Antarctic (Australia v Japan) (2010,
pending) 326, 584
Wijngaarde v Bouterse, NJ (2001) No 51; (2000) 3 Ybk IHL
677 500, 688
Wilhelm Finance Inc v Ente Administrador Del Astillero Rio
Santiago [2009] EWHC 1074 (Comm) 493
Wimbledon, See SS Wimbledon
Wisconsin v Pelican Insurance Co, 127 US 265 (1887) 482
Wood v Verity, 729 F.Supp 1324 (SD Fla, 1989) 322
Woodend (KV Ceylon) Rubber and Tea Co v IRC [1971] AC
321 64
Woodpulp Cases (1988) 96 ILR 174 464
World-Wide Volkswagen Corp v Woodson, 444 US 286 (1980) 473
WS Kirkpatrick & Co Inc v Environmental Tectonics Corp
International, 493 US 400 (1990) 86, 87
Wulfsohn v RSFSR, 234 NY 372 (Ct App, 1923) 152, 160, 161
Wünsche Handelsgesellschaft (Solange II) (1986) 93 ILR 403 670
X (Minors) v Bedfordshire County Council [1995] 2 AC 633 71
X and Y v Netherlands [1985] ECtHR 8978/80 656
X v Argentina (1996) 114 ILR 502 497
X v Austria (1960) 30 ILR 268 713
X v Department of Justice & Police of Canton of Geneva (1977) 75
ILR 90 174
X v Israel (2002) 127 ILR 310 487, 497
X v Saudi School in Paris (2003) 127 ILR 163 487
X v Y (1946) 13 ILR 19 162
Xuncax v Gramajo, 886 F.Supp 162 (D Mass, 1995) 83
Yarmirr v Northern Territory (2001) 125 ILR 320 211
Yasa v Turkey [1998] ECtHR 22495/93 667
Yaung Chi Oo Trading v Myanmar (2003) 8 ICSID Reports
463 530
Yeager v Iran (1987) 82 ILR 178 551, 609
Yener and Erez [1987] Rec Lebon 151; (1987) 89 ILR 1 104
Youmans (1926) 4 RIAA 110 547, 551
Young, James and Webster (1981) 62 ILR 359 664
Yugoslav Military Mission (1969) 65 ILR 108 397
Yukon Lumber (1913) 6 RIAA 17 564
Yukos Universal Ltd v Russia, 30 November 2009 336
Yusef & Al Barakaat International Foundation v Council and
Commission (T-306/01) [2005] ECR II-3533198
Zadeh v US (1955) 22 ILR 336 553
Zambian Embassy v Sendanayake (1992) 114 ILR 532 497
Zamora, The [1916] 2 AC 77 41
Zennaro, Italian Constitutional Court, 8 April 1976, Judgment No
69; (1976) 77 ILR 581 91
Zhang v Jiang Zemin (2008) 141 ILR 542 43, 505
Ziat, Ben Kiran (1924) 2 RIAA 729 551
Zivotofsky v Secretary of State, 571 F.3d 1227 (DC Cir, 2010) 84
ZM v Permanent Delegation of the League of Arab States to the
United Nations (1993) 116 ILR 643 173, 174
Zoernsch v Waldock [1964] 1 WLR 675; [1964] 2 All ER
256 170, 178, 408
Zuk (1956) 26 ILR 284 621
Abbreviations
NOTE: UK and international law reports appear in the following list
without reference to their jurisdiction of origin (e.g. Weekly Law Reports,
International Law Reports). The origin of all other report series may be
determined from their title (e.g. Australian Law Reports) or a reference to
jurisdiction in parentheses (e.g. Federal Reporter, Lauterpacht, Function
of Law (1933, repr 2011) Second Series (US)).
A.2d
Atlantic Reporter (Second Series) (US)
ABS
American Behavioral Scientist
AC
Appeal Cases
AdV
Archiv des Völkerrechts
Af & Asian S
African and Asian Studies
Af HRLJ
African Human Rights Law Journal
Af JICL
African Journal of International and Comparative Law
Af JLS
African Journal of Legal Studies
AFDI
Annuaire français de droit international
AHRLR
African Human Rights Law Reports
Air & Space L
Air and Space Law
AJCL
American Journal of Comparative Law
AJIL Supp
American Journal of International Law, Supplement
AJIL
American Journal of International Law
Akron LR
Akron Law Review
ALJ
Australian Law Journal
ALR
Australian Law Reports
ALRC
Australian Law Reform Commission
Ann ASL
Annals of Air and Space Law
Ann de l’Inst
Annuaire de l’Institut de droit international
Ann Suisse
Annuaire Suisse de Droit International
APSR
American Political Science Review
AR En Res
Annual Review of Environmental Resources
Arb Int
Arbitration International
ARSIWA
Articles on the Responsibility of States for Internationally Wrongful
Acts
(p. lxiii) AU
African Union
AUJIL & Pol
American University Journal of International Law and Policy
AUILR
American University International Law Review
AULR
American University Law Review
Austrian JPIL
Austrian Journal of Public and International Law
Austrian RIEL
Austrian Review of International and European Law
AYIL
Australian Year Book of International Law
BD
British Digest of International Law
Berkeley JIL
Berkeley Journal of International Law
BFSP
British and Foreign State Papers
BIT
Bilateral Investment Treaty
Boston Col ICLR
Boston College International and Comparative Law Review
Boston UILJ
Boston University International Law Journal
BPIL
British Practice in International Law
Brooklyn JIL
Brooklyn Journal of International Law
BVerfGE
Bundesverfassungsgerichts (Germany)
BvR
Verfassungsrechtliche Beschwerde (Germany)
BY
British Year Book of International Law
C&SLJ
Company and Securities Law Journal
California WJIL
California Western Journal of International Law
Cam RIA
Cambridge Review of International Affairs
Can BR
Canadian Bar Review
Can JEPS
Canadian Journal of Economics and Political Science
Cardozo JICL
Cardozo Journal of International and Comparative Law
Cardozo LR
Cardozo Law Review
Case WRJIL
Case Western Reserve Journal of International Law
CEDAW
Convention on the Elimination of All Forms of Discrimination
against Women
CEPMLP
Centre for Energy, Petroleum and Mineral Law and Policy Internet
Journal
CETS
Council of Europe Treaty Series
(p. lxiv) Ch
Law Reports, Chancery Division
Chicago JIL
Chicago Journal of International Law
ChiKentLR
Chicago-Kent Law Review
Chin JIL
Chinese Journal of International Law
CJIELP and Policy
Colorado Journal of International Environmental Law
CLF
Criminal Law Forum
CLJ
Cambridge Law Journal
CLP
Current Legal Problems
CLR
Commonwealth Law Reports (Australia)
Cmd, Cmnd
United Kingdom, Command Papers
CMLR
Common Market Law Review
Col HRLR
Columbia Human Rights Law Review
Col J EurL
Columbia Journal of European Law
Col JEL
Columbia Journal of Environmental Law
Col JTL
Columbia Journal of Transnational Law
Col LR
Columbia Law Review
Comm L Bull
Commonwealth Law Bulletin
Conn JIL
Connecticut Journal of International Law
Cornell ILJ
Cornell International Law Journal
CP Rep
Civil Procedure Reports
Crawford, Selected Essays
Crawford, International Law as an Open System: Selected
Essays (2002)
CTS
Consolidated Treaty Series
CYIL
Canadian Yearbook of International Law
Den LJ
Denver Law Journal
DePaul LR
DePaul Law Review
Dir Int
Diritto Internazionale
DJILP
Denver Journal of International Law and Policy
DLR (4th)
Dominion Law Reports, Fourth Series (Canada)
Dods
Dodson’s Admiralty Reports
DRC
Democratic Republic of the Congo
DSB
Department of State Bulletin
(p. lxv) Duke JCIL
Duke Journal of Comparative and International Law
Duke LJ
Duke Law Journal
ECHR
European Convention for the Protection of Human Rights and
Fundamental Freedoms
ECLR
European Constitutional Law Review
ECOMOG
Economic Community of West African States Monitoring Group
ECOWAS
Economic Community of West African States
ECR
European Court Reports
ECtHR
European Court of Human Rights
EECC
Eritrean-Ethiopian Claims Commission
EEZ
Exclusive Economic Zone
EHRLR
European Human Rights Law Review
EJIL
European Journal of International Law
ELJ
European Law Journal
ELR
European Law Review
EPIL
Max Planck Encyclopedia of International Law, paper edition
ETL
European Transport Law
ETS
European Treaty Series
EWCA
England and Wales Court of Appeal
EWHC
England and Wales High Court
Ex D
Law Reports, Exchequer Division
F
Federal Reporter (US)
F.2d
Federal Reporter, Second Series (US)
F.3d
Federal Reporter, Third Series (US)
F.Supp 2d
Federal Supplement, Second Series (US)
F.Supp
Federal Supplement (US)
FCR
Federal Court Reports (Australia)
Fed Comm LJ
Federal Communications Law Journal
Fin YIL
Finnish Yearbook of International Law
Florida JIL
Florida Journal of International Law
(p. lxvi) FLR
Family Law Reports
FLR
Federal Law Review
Fordham ILJ
Fordham International Law Journal
Fordham LR
Fordham Law Review
FRUS
Foreign Relations of the United States
FRY
Federal Republic of Yugoslavia
G Wash ILR
George Washington International Law Review
G Wash LR
George Washington Law Review
Ga JICL
Georgia Journal of International and Comparative Law
GAOR
General Assembly Official Records
GCCS
Geneva Convention on the Continental Shelf
GCHS
Geneva Convention on the High Seas
GCTS
Geneva Convention on the Territorial Sea and Contiguous Zone
Geneva Convention I
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field
Geneva Convention II
Geneva Convention for the Amelioration of the Condition of the
Wounded, Sick and Shipwrecked Members of the Armed Forces
at Sea
Geneva Convention III
Geneva Convention Relative to the Treatment of Prisoners of War
Geneva Convention IV
Geneva Convention Relative to the Protection of Civilian Persons
in Time of War
Genocide Convention
Convention on the Prevention and Punishment of the Crime of
Genocide
Geo J
GeoJournal
Geo LJ
Georgetown Law Journal
Geo Rev
Geographical Review
GG
Global Governance
GIELR
Georgetown International Environmental Law Review
GLJ
German Law Journal
GST
Transactions of the Grotius Society
Guggenheim
Guggenheim, Traité de droit international public (2 vols, 2nd edn,
1967)
GYIL
German Yearbook of International Law lxvii ABBREVIATIONS
(p. lxvii) Hackworth
Hackworth, Digest of International Law (1940–44)
Hague JJ
Hague Justice Journal
Hague Recueil
Recueil des cours de l’Académie de droit international
Hague YIL
Hague Yearbook of International Law
Harv HRJ
Harvard Human Rights Journal
Harv ILJ
Harvard International Law Journal
Harv LR
Harvard Law Review
Harv NSJ
Harvard National Security Journal
Hastings ICLR
Hastings International and Comparative Law Review
HCA
High Court of Australia
HCR
Scott (ed), Hague Court Reports
Higgins, Development (1963)
Higgins, The Development of International Law through the
Political Organs of the United Nations (1963)
Hitotsubashi JLP
Hitotsubashi Journal of Law and Politics
Hous JIL
Houston Journal of International Law
HRLR
Human Rights Law Review
HRQ
Human Rights Quarterly
Hudson, Int Legis
Hudson (ed), International Legislation (9 vols, 1931–50)
Hyde
Hyde, International Law Chiefly as Interpreted and Applied by the
United States (3 vols, 2nd edn, 1947)
IACHR
Inter-American Commission on Human Rights
IACtHR
Inter-American Court of Human Rights
ICC Statute
Rome Statute of the International Criminal Court
ICCPR
International Covenant on Civil and Political Rights
ICERD
International Convention on the Elimination of all Forms of Racial
Discrimination
ICESCR
International Covenant on Economic, Social and Cultural Rights
ICJ Pleadings
International Court of Justice: Pleadings, Oral Arguments,
Documents
ICJ Reports
Reports of Judgments, Advisory Opinions and Orders of the
International Court of Justice
ICLQ
International and Comparative Law Quarterly
(p. lxviii) ICRC
International Committee of the Red Cross
ICSID Rev-FILJ
ICSID Review – Foreign Investment Law Journal
ICSID
International Centre for the Settlement of Investment Disputes
ICTY Statute
Statute of the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since
1991
ICTY
International Criminal Tribunal for the Former Yugoslavia
Idaho LR
Idaho Law Review
IDI
Institut de Droit International
IELR
International Environmental Law Reports
IHRR
International Human Rights Reports
IJMCL
International Journal of Marine and Coastal Law
ILA
International Law Association
ILC Ybk
Yearbook of the International Law Commission
ILC
International Law Commission
ILDC
Oxford Reports on International Law, International Law in
Domestic Courts
ILM
International Legal Materials
ILQ
International Law Quarterly
ILR
International Law Reports (continuation of the Annual Digest)
ILSA JICL
International Law Students Association Journal of International &
Comparative Law
Imm & Nat LR
Immigration and Nationality Law Review
Indian JIL
Indian Journal of International Law
Indiana JGLS
Indiana Journal of Global Legal Studies
Int Comm LR
International Community Law Review
Int Crim LR
International Criminal Law Review
Int Environ Agreements
International Environmental Agreements: Politics, Law and
Economics
Int Lawyer
International Lawyer
Int Org LR
International Organizations Law Review
(p. lxix) Int Org
International Organization
IR
Irish Reports
Iran–US CTR
Iran–US Claims Tribunal Reports
IRRC
International Review of the Red Cross
Is LR
Israel Law Review
Is YBHR
Israeli Yearbook of Human Rights
It YIL
Italian Yearbook of International Law
ITBL
International Tax and Business Lawyer
ITLOS
International Tribunal for the Law of the Sea
J Marshall LR
John Marshall Law Review
J Space L
Journal of Space Law
J Trans LP
Journal of Transnational Law and Policy
JAIL
Japanese Annual of International Law
JCCP
Journal of Commonwealth and Comparative Politics
JCP
Juris-Classeur Périodique
JCSL
Journal of Conflict & Security Law
JDI
Journal du droit international
JEL & P
Journal of Environmental Law and Practice
JEL
Journal of Environmental Law
JEMIE
Journal on Ethnopolitics and Minority Issues in Europe
JIA
Journal of International Arbitration
JIANL
Journal of Immigration Asylum and Nationality Law
JICJ
Journal of International Criminal Justice
JIDS
Journal of International Dispute Settlement
JMLC
Journal of Maritime Law and Commerce
JORF
Journal officiel de la République Français
JWIT
Journal of World Investment and Trade
JWT
Journal of World Trade
JYIL
Japanese Yearbook of International Law (continuation of JAIL)
KB
Law Reports, King’s Bench
Lauterpacht, Development (1958)
H Lauterpacht, The Development of International Law by the
International Court (1958)
(p. lxx) Lauterpacht, Function of Law (1933, repr 2011)
H Lauterpacht, The Function of Law in the International
Community (1933, repr 2011)
LCP
Law and Contemporary Problems
LDD
Law, Democracy & Development
Lewis & Clark LR
Lewis & Clark Law Review
LJIL
Leiden Journal of International Law
LJN
Landelijk Jurispr Nr (Netherlands)
Lloyd’s Rep
Lloyd’s List Law Reports
LLR
Liverpool Law Review
LNOJ
League of Nations, Official Journal
LNTS
League of Nations, Treaty Series
Lowe & Fitzmaurice (eds), Jennings Essays (1996)
Lowe & Fitzmaurice (eds), Fifty Years of the International Court of
Justice: Essays in Honour of Sir Robert Jennings (1996)
Loyola LA ICLJ
Loyola of Los Angeles International & Comparative Law Journal
Loyola LA ICLR
Loyola of Los Angeles International & Comparative Law
Review (continuation of Loyola LA ICLJ)
Loyola LR
Loyola Law Review
LPIB
Law and Policy in International Business
LPICT
Law & Practice of International Courts and Tribunals
LQR
Law Quarterly Review
Mar Policy
Maritime Policy and Management
McGill LJ
McGill Law Journal
McNair, Opinions
McNair, International Law Opinions (3 vols, 1956)
McNair, Treaties (1961)
McNair, The Law of Treaties (1961)
Md LR
Maryland Law Review
Mélanges Reuter
Mélanges offerts à Paul Reuter: le droit international, unité et
diversité (1981)
Melb JIL
Melbourne Journal of International Law
Melb ULR
Melbourne University Law Review
MES
Middle Eastern Studies
Mich JIL
Michigan Journal of International Law
Mich LR
Michigan Law Review
(p. lxxi) Millenium
Millennium: Journal of International Studies
Minn JIL
Minnesota Journal of International Law
Minshu
Saikou Saibansho Minji Hanreishu (Japan)
MLR
Modern Law Review
Moore, Digest
Moore, A Digest of International Law (8 vols, 1906)
Moore, Int Arb
Moore, History and Digest of the International Arbitrations to which
the United States Has Been a Party (6 vols, 1898)
MPEPIL
Max Planck Encyclopedia of International Law, online edition
MPUNYB
Max Planck Yearbook of United Nations Law
MSU JIL
Michigan State University College of Law Journal of International
Law
NAFTA
North American Free Trade Agreement
NATO
North Atlantic Treaty Organization
NELR
New England Law Review
NILR
Netherlands International Law Review
NJ
Nederlandse Jurisprudentie (Netherlands)
NJA
Nyutt Juridiskt Arkiv (Sweden)
NJW
Neue Juristische Wochenschrift
Nordic JIL
Nordic Journal of International Law
Notre Dame LR
Notre Dame Law Review
NQHR
Netherlands Quarterly of Human Rights
NRG 2nd Ser
Nouveau Recueil Général de traités et autres actes relatifs aux
rapports de droit international, Second Series
NRJ
Natural Resources Journal
Nw JIHR
Northwestern Journal of International Human Rights
Nw ULR
Northwestern University Law Review
NY
New York Reports (US)
NYCLR
New York City Law Review
NYIL
Netherlands Yearbook of International Law
NYLJ
New York Law Journal
NYS.2d
New York Supplement (Second Series) (US)
(p. lxxii) NYUJILP
New York University Journal of International Law and Politics
NZLJ
New Zealand Law Journal
NZYIL
New Zealand Yearbook of International Law
OAS
Organization of American States
OAU
Organization of African Unity (now African Union)
Ocean Ybk
Ocean Yearbook
OCLJ
Ocean and Coastal Law Journal
OCM
Ocean and Coastal Management
ODIL
Ocean Development & International Law
Ohio NULR
Ohio Northern University Law Review
Ohio St LJ
Ohio State Law Journal
OJEU
Official Journal of the European Union
OJLS
Oxford Journal of Legal Studies
Oppenheim
Oppenheim, International Law (9th edn, 1992), edited by Sir
Robert Jennings and Sir Arthur Watts
OZföR
Österreichische Zeitschrififur öffentliches Recht
P
Probate, Divorce and Admiralty Division
P.2d
Pacific Reporter, Second Series (US)
Palestine YIL
Palestine Yearbook of International Law
PAS
Proceedings of the American Society of International Law
PCA
Permanent Court of Arbitration
PCIJ
Publications of the Permanent Court of International Justice
PLO
Palestine Liberation Organization
Pol YIL
Polish Yearbook of International Law
PRC
People’s Republic of China
Public LR
Public Law Review
QB
Law Reports, Queen’s Bench
RBDI
Revue Belge de Droit International
RCEEL
Review of Central and Eastern European Law
(p. lxxiii) RDI (La Pradelle)
Revue de droit international (Paris, ed La Pradelle)
RDI
Revue de droit international
Rdi
Rivista di Diritto Internazionale
RDILC
Revue de droit international et de législation comparée (Brussels)
RDISDP
Revue de Droit International, de Sciences Diplomatiques et
Politiques
Rec Dalloz
Recueil Dalloz (France)
Rec Lebon
Recueil des arrêts du Conseil d’État (France)
Rec
Recueil des décisions du Conseil constitutionnel (France)
Restatement Third
American Law Institute, Restatement of the Law Third: The
Foreign Relations Law of the United States (2 vols, 1987)
Rev Arb
Revue de l’Arbitrage
Rev crit DIPriv
Revue critique de droit international privé
RG
Rossiiskaia gazeta
RGDIP
Revue générale de droit internaional public (Paris)
RIAA
United Nations, Reports of International Arbitral Awards
RITD
Revue internationale de la théorie du droit
S Af YIL
South African Yearbook of International Law
San Diego ILJ
San Diego International Law Journal
Satow
Satow, Satow’s Diplomatic Practice (6th edn, 2009), edited by Sir
Ivor Roberts
Scan SL
Scandinavian Studies in Law
SCR
Supreme Court Reports (Canada)
Seoul LJ
Seoul Law Journal
SFRY
Socialist Federal Republic of Yugoslavia
Sørensen, Les Sources (1946)
Sørensen, Les Sources du droit international: Étude sur la
jurisprudence de la Cour Permanente de Justice
Internationale (1946)
Soviet YIL
Soviet Yearbook of International Law
Sp YIL
Spanish Yearbook of International Law
Stanford JIL
Stanford Journal of International Law
Stanford LR
Stanford Law Review
(p. lxxiv) SWJL & Tr Am
Southwestern Journal of Law and Trade in the Americas
Syracuse JILC
Syracuse Journal of International Law and Commerce
Syracuse LR
Syracuse Law Review
TDM
Transnational Dispute Management
TEE
Trends in Ecology and Evolution
Temple ICLJ
Temple International and Comparative Law Journal
Texas ILJ
Texas International Law Journal
Texas LR
Texas Law Review
TFEU
Treaty on the Functioning of the European Union
Times LR
Times Law Reports
Trans L
Transnational Lawyer
Tul Mar LJ
Tulane Maritime Law Journal
U Chic LR
University of Chicago Law Review
U Chic LSR
University of Chicago Law School Roundtable
U Miami IA LR
University of Miami Inter-American Law Review
U Miami ICLR
University of Miami International and Comparative Law Review
U Penn JIL
University of Pennsylvania Journal of International Law
U Penn LR
University of Pennsylvania Law Review
U Pitt LR
University of Pittsburgh Law Review
UBCLR
University of British Columbia Law Review
UC Davis JILP
University of California, Davis Journal of International Law & Policy
UCLA JILFA
UCLA Journal of International Law and Foreign Affairs
UKHL
United Kingdom House of Lords
UKMIL
UK Materials on International Law (in BY)
UKTS
United Kingdom Treaty Series
UN Charter
Charter of the United Nations
UNCLOS I
First United Nations Conference on the Law of the Sea, 1956
(p. lxxv) UNCLOS II
Second United Nations Conference on the Law of the Sea, 1960
UNCLOS III
Third United Nations Conference on the Law of the Sea, 1973–82
UNCLOS
United Nations Convention on the Law of the Sea
UNMIK
United Nations Interim Administration Mission in Kosovo
UNTAET
United Nations Transitional Administration in East Timor
UNTS
United Nations Treaty Series
US Digest
Digest of United States Practice in International Law
US
United States Supreme Court Reports
USC
United States Code
UST
United States Treaties
Utah LR
Utah Law Review
Utrecht LR
Utrecht Law Review
Va JIL
Virginia Journal of International Law
Va LR
Virginia Law Review
Vand JTL
Vanderbilt Journal of Transnational Law
VCCR
Vienna Convention on Consular Relations
VCDR
Vienna Convention on Diplomatic Relations
VCLT II
Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations
VCLT
Vienna Convention on the Law of Treaties
Villanova ELJ
Villanova Environmental Law Journal
VKS
Vestnik Konstitutionnogo Suda Rossiskoi Federatsii (Russian
Federation)
Wayne LR
Wayne Law Review
Wheaton
Wheaton’s Supreme Court Reports (US)
Whiteman
Whiteman, Digest of International Law (1963–73)
Wisconsin ILJ
Wisconsin International Law Journal
WLR
Weekly Law Reports
WRD
Water Resources Development
(p. lxxvi) WTAM
World Trade & Arbitration Materials
Yale JIL
Yale Journal of International Law
Yale JWPO
Yale Journal of World and Public Order
Yale LJ
Yale Law Journal
Ybk Air & Space Law
Yearbook of Air and Space Law
Ybk ECHR
Yearbook of the European Convention on Rights Human
Ybk IEL
Yearbook of International Environmental Law
Ybk IHL
Yearbook of International Humanitarian Law
Ybk Space P
Yearbook of Space Policy
YBWA
Yearbook of World Affairs
ZaöRV
Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht
Zemanek Festschrift
Ginther & Hafner (eds), Festschrift für Karl Zemanek zum 65.
Geburtstag (1994)
Glossary
acquis communautaire.
From the French ‘that which has been agreed upon by the
Community’; the accumulated body of case-law, treaties, and
legislation that comprise the laws of the European Union.
acta iure imperii; iure imperii.
An act characteristic of or unique to a state, e.g. involving
governmental authority (as opposed to acta iure gestionis).
acta iure gestionis; iure gestionis.
An act not characteristic of or unique to a state, e.g. a commercial
transaction (as opposed to acta iure imperii).
ad hoc.
Formed or derived for a particular purpose; lacking in generality.
amicus curiae.
A person permitted to present arguments bearing upon issues
before a tribunal yet not representing the interests of any party to
the proceedings.
aut dedere aut iudicare.
A principle usually embodied in a treaty requiring a state to either
try an accused or extradite him or her to another state willing to do
so.
casus foederis.
The preconditions contained within a treaty (usually regional) for
the formation of an alliance. Commonly contained within pacts of
collective self-defence.
causa sine qua non.
A necessary cause of the event.
compromis.
A special agreement between states to submit a particular issue
either to an arbitral tribunal or to the International Court.
conflict of laws (private international law).
A Part of the law of each state which provides rules for deciding
cases involving foreign factual elements, e.g. a contract made
abroad.
cujus est solum usque ad caelum et ad inferos.
He who owns the surface has title both to the airspace above and
the subsoil.
culpa.
The civil/Roman law term employed to refer to negligence, lack of
reasonable care.
de facto.
A situation arising in fact, whether recognized legally or not; as
opposed to de iure.
de iure.
According to law or by right; as opposed to de facto.
de lege ferenda.
Relating to the law as it should be if it were to accord with good
policy (cf de lege lata, concerning the law as already laid down).
delicta iuris gentium.
Wrongs recognized by public international law.
détournement de pouvoir.
A term of French administrative law originally, meaning abuse of
administrative powers by public officials.
dicta.
Propositions of law stated by tribunals not directed to the principal
matters in issue; not the grounds of decision (cf ratio decidendi).
(p. lxxviii) dies ad quem.
The day to which.
diligentia quam in suis.
The standard of care normally exercised by a person in the
conduct of his or her own affairs.
dolus.
The intention to inflict harm.
dominium.
Title or ownership.
equity infra legem.
Equity defined by legal principles.
erga omnes.
Opposable to or valid against ‘all the world’, i.e. all other legal
persons, irrespective of specific consent on the Part of those thus
affected.
ex aequo et bono.
Equity at large, unconstrained by law (cf equity infra legem).
ex gratia.
As a matter of discretion (e.g. a compensation payment made ex
gratia).
ex hypothesi.
In accordance with or following from a hypothesis stated.
ex injuria non oritur jus.
The principle that no right can be arise from an unlawful act.
ex officio.
By virtue of office; a right derived by virtue of holding a particular
position.
ex post facto.
Occurring after the fact.
ex proprio motu.
See proprio motu.
force majeure.
The occurrence of an irresistible force or unforeseen restraint.
forum non conveniens.
A common law doctrine used at the discretion of the court to deny
jurisdiction where there is a more appropriate forum for the
resolution of a dispute elsewhere.
forum prorogatum.
Jurisdiction on the basis of tacit consent after a case has been
submitted.
imperium.
Governmental authority; a governmental interest.
in absentia.
Used ordinarily in relation to a civil or criminal trial conducted
without the presence of the accused.
in limine.
At the outset.
in statu nascendi.
In the process of formation.
in pari delicto.
Equally at fault; equally implicated in wrongful conduct.
in personam.
Applicable to an individual, natural or juridical; a personal action
(cf in rem).
inter alia.
Among other things.
inter se.
Between the parties to a specific agreement or other transaction.
intuitu personae.
By virtue of the person concerned.
ipso facto.
By the fact itself; the direct consequence of an action.
iura in re aliena.
Rights in another property.
iura novit curia.
The principle that a court or tribunal is presumed to know the law.
ius cogens.
Peremptory norms of general international law.
(p. lxxix) ius gentium.
Those rules of law common to all nations; the law of nations.
Originally a Roman term preceding the modern formulation
‘international law’.
jurisprudence constante.
A consistent jurisprudence or line of authority.
lato sensu/stricto sensu.
The broad sense/the narrow sense.
lex ferenda.
See de lege ferenda.
lex lata.
The law as it exists; as opposed to de lege ferenda.
lex specialis.
The principle that a particular law that may displace a more
general law in the event of a conflict between the two.
lis alibi pendens; lis pendens.
Dispute pending elsewhere; a doctrine of private international law
to obviate or otherwise reduce the risk of parallel proceedings in
the same matter.
locus delicti.
The state or jurisdiction where a tort or civil wrong was committed.
locus standi.
The existence of a sufficient legal interest in a case; title to sue.
mala in se.
Recognized as inherently wrong.
mutatis mutandis.
Applicable to an analogous situation with necessary modifications.
nemo dat quod non habet..
The principle that a donor cannot give a greater interest than he or
she already has.
ne bis in idem.
The principle that no person should be proceeded against twice
over the same matter.
nullum crimen sine lege.
The principle that a crime cannot be committed unless it was
considered as such under an applicable system of law at the time
of its commission; also called the principle of legality.
obiter; obiter dicta.
See dicta.
opinio iuris sive necessitatis.
The element in the practice of states which denotes that the
practice is required by international law.
pacta sunt servanda.
The principle that agreements are binding and are to be
implemented in good faith.
pacta tertiis nec nocent nec prosunt; pacta tertiis.
The principle that an agreement or treaty is only binding on those
who are party to it.
persona non grata.
One who is not welcome; term of art in diplomatic relations used to
formally proscribe a person from entering or remaining within the
receiving state.
petitio principii.
An argument or assertion which begs the question.
prima facie.
In principle; presumptively.
proprio motu.
Of the court’s s own motion.
qua.
Considered as; in the character or capacity of.
quid pro quo.
A reciprocal exchange, e.g. consideration for acts performed or to
be performed.
(p. lxxx) ratio; ratio decidendi.
The principal proposition or propositions of law determining the
outcome of a case, or necessary for the decision of a particular
case (cf dicta).
ratione materiae.
By reason of the subject-matter; thus an immunity ratione
materiae is an immunity accorded by reference to the subjectmatter of the claim.
ratione personae.
By reason of the person; thus an immunity ratione personae is
accorded by reason of a person’s status (e.g. a serving head of
state).
ratione temporis.
By reference to time; thus an objection to jurisdiction ratione
temporis is an objection by reference to the time at which a claim
arose.
rebus sic stantibus.
The implication that the obligations under a treaty are terminable
in the event of a fundamental change of circumstances.
res communis.
Objects or areas held in common, not subject to the sovereignty of
a single state (e.g. high seas, outer space).
res inter alios acta.
A matter affecting third parties and not opposable to the legal
persons between whom there is an issue.
res iudicata.
The principle that an issue actually decided by a court should not
be reopened.
res nullius.
An asset susceptible of acquisition but presently under the
ownership or sovereignty of no one.
siège social.
French legal concept for determining corporate domicile; may be
loosely rendered as ‘head office’ or ‘predominant place of
administrative activity’.
stare decisis.
The principle that a tribunal should follow its own previous
decisions and those of other tribunals of equal or greater authority.
stipulation pour autrui.
Contractual stipulation in favour of a third party.
sui generis.
Not falling within normal legal categories; unclassifiable.
travaux préparatoires.
Preparatory work; preliminary drafts, minutes of conferences, and
the like, relating to the conclusion of a treaty.
ultra vires.
Unauthorized by legal authority; invalid as beyond power.
uti possidetis iuris; uti possidetis.
The presumption that the boundaries of a new state or entity follow
those that existed under the previous (colonial) regime.
Part I Preliminary Topics
(p. 3) 1 Introduction
‘Then felt I like some watcher in the skies
When a new planet swims into his ken…’
Keats1
1. Development of the Law of Nations
The law of nations, now known as (public) international law,2 developed
out of the tradition of the late medieval ius gentium.3 Through an
influential series of writers—
Vitoria,4 Gentili,5 Grotius,6 Pufendorf,7 Wolff,8 Vattel,9and others—it came
to be seen as a specialized body of legal thinking about the relations
between rulers, reflective of (p. 4) custom and practice in such matters as
treaty-making, the status of ambassadors, the use of the oceans, and the
modalities of warfare. It was not continuous with the ius gentium of the
Romans, but the thirteenth-century rediscovery of Roman or civil law by
figures such as Thomas Aquinas10 reinforced the idea that law could
structure or at least moderate the relations between kingdoms,
principalities, and republics.11The Thomist conceptualization of such
relations owed much to the notion of the ‘just war’ that was later to
preoccupy Grotius and others. At that time, international law—if the term
was even applicable—was essentially a moral question (resulting in the
elevation of the ‘just war’ to a matter of Christian doctrine); but it was
engaged with issues familiar to a modern practitioner, such as territorial
claims, treaties, the right of legation, and related matters.12 A signal
development hinting at advances yet to come was that war was seen as
the prerogative of the sovereign:
For it is not the business of a private individual to declare war,
because he can seek for redress of his rights from the tribunal of
his superior. Moreover it is not the business of a private
individual to summon together the people, which has to be done
in wartime. And as the care of the common weal is committed to
those who are in authority, it is their business to watch over the
common weal of the city, kingdom or province subject to them.13
In terms of intellectual history, international law was thus European in
origin, although the Europe in question was large, extending to the whole
Mediterranean, to Russia and the Near East; thence international law
travelled with the colonizers to the Americas, to Asia, to Africa and
eventually to Oceania.14 At this time Europe was not chauvinistic in
defining membership of the international system.15 For example, the
Ottoman Empire was accepted as a valid participant as early as 1649.16
In the Far East, a number of states such as Siam/Thailand, China, and
Japan survived the colonial onslaught and continued to assert their
independence, as demonstrated by Macartney’s embassy to China in
1792 and his acid reception by the Qianlong Emperor.17 By the midnineteenth century China had been largely cowed (p. 5) by the use of
gunboat diplomacy, leading to the Treaties of Beijing in 1860.18 Japan, by
contrast, engaged in a controlled opening to the west, with British naval
advisers and an early translation of Wheaton’s International Law.19 A few
Asian nations were able to maintain their autonomy, either because it
was convenient for the colonial powers (as in the case of Siam/Thailand)
or because the state succeeded in internal modernizing (as in the case of
Japan, whose navy crushed Russia’s at the battle of Tsushima in 1905).
Similarly, Ethiopia was able to maintain its independence at the expense
of Italy following the latter’s defeat at the battle of Adowa in 1896. The
remainder of the African continent, however, was subjugated: following
the Berlin Conference of 1884 and the ‘Scramble for Africa’20 it was
divided between Great Britain, France, Belgium, Germany, Spain,
Portugal, and Italy to create a political landscape that would last until
after the Second World War.21
By this stage, the ‘modern structure’ of the law of nations was
recognizably in place. The system of diplomatic relations, recognition,
international organizations, treaties, and customary international law had
taken on essentially modern contours. At the same time, colonialism had
reshaped the world in a Eurocentric image. By the 1920s, the number of
states in the world had been reduced to some 64, of which 16 were
former Spanish and Portuguese colonies in South and Central America.
Of the non-European nations, only seven—Ethiopia, Liberia, the Ottoman
Empire (Turkey), Thailand, China, Japan, and Afghanistan—had
managed to retain independence without formal qualification of their
sovereignty.
Perhaps as a concomitant of this reduction, sovereignty was assigned
unique value in the international sphere. By the 1920s, it was widely
thought that international law was entirely dependent on the consent—
express or implied—of states,22 and was applicable to states alone:
‘Since the Law of Nations is based on the common consent of individual
States, and not of individual human beings, States solely and exclusively
are the subjects of International Law’.23 But the influence of earlier eras
was not entirely expunged. Even at this point in time—the crest of the
positivist wave—the Permanent Court of International Justice had
indicated that rights under international law could be conferred on
individuals.24
References
(p. 6) At around this time, international legal personality gained an added
dimension with the emergence of international organizations. In the
nineteenth century states moved from the bilateral treaty and reliance on
diplomatic contact to other forms of co-operation. The Congress of
Vienna (1814–15) heralded an era of international conferences and
multilateral treaties: later there appeared river commissions such as the
European Commission of the Danube (1856) and administrative unions
such as the International Telegraph Union (1865). After 1919 the League
of Nations and then the United Nations provided a more developed
attempt at universal peacekeeping arrangements, and many specialized
institutions concerned with technical, economic, and social co-operation
were established. Permanent organizations with executive and
administrative organs paralleled but did not completely replace the
system of ad hoc diplomacy and conferences.25
Over the course of the twentieth century, international law underwent a
profound process of expansion. Developments included, inter alia, the
creation of international organizations of universal membership with
treaty-making powers (see chapter 7), a detailed elaboration of the law of
the sea (see chapters 11–13), the establishment of permanent bodies (or
at least permanently available institutions) for the settlement of
international disputes, including ‘mixed’ disputes between states and
private parties (see chapter 32), the prohibition on the use of force by
states (see chapter 33); the emergence of various sub-disciplines or
specialist areas of work and study; notably, human rights (see
chapter 29), international environmental law (see chapters 14, 15),
international economic law,26 international criminal law (see chapter 30),
and progress towards the codification of international law, principally
through the work of the International Law Commission.27
2. International Law as Law
At an elementary level, the normative system of international law is
derived from four sources, enumerated in Article 38(1) of the Statute of
the International Court of Justice: (1) treaties; (2) customary international
law; (3) general principles of law; and (4) ‘judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as
a subsidiary means for the determination of rules of law’.28 But (p.
7) these, important in their own right, tell us little about the wider
intellectual history of the field or its normative underpinnings.
(A) Natural Law Origins
The early development of international law saw its gradual separation
from natural law, a process spurred on by the Reformation and the wars
of religion, notably the Thirty Years War which ended with the Peace of
Westphalia (1648). Natural law as a school of thought had emerged from
the philosophical traditions of Roman law and the Roman Church, which
conceived of a universal ius naturale (natural law properly speaking) of
which the ius gentium (the law of peoples) was a subset.29 Natural law,
thus conceived, was universal; this was the background from which
emerged Vitoria, Grotius, and other early theorists. Their contribution,
willingly or not, was the separation of the ius gentium from the ius
naturale and its modulation into a law of nations, which applied
specifically to the rulers of states. This was particularly evident in the
work of Grotius, who depicted international law as the gradual
development of universal principles of justice which could be deciphered
through human agency (independent of received religion):
But as the Laws of each State respect the Benefit of that State;
so amongst all or most States there might be, and in Fact there
are, some Laws agreed on by common Consent, which respect
the Advantage not of one Body in particular, but of all in general.
And this is what is called the Law of Nations, when used in
Distinction to the Law of Nature.…
Let it be granted then, that Laws must be silent in the midst of
Arms, provided they are only those Laws that are Civil and
Judicial, and proper for Times of Peace; but not those that are of
perpetual Obligation, and are equally suited to all Times. For it
was very well said…That between Enemies, Written, that is,
Civil Laws, are of no Force, but Unwritten are, that is, those
which Nature dictates, or the Consent of Nations has instituted.
…[T]here are some Things, which it would be unlawful to
practise even against an Enemy.30
Thus understood, the law of nations was a system of norms whether
derived from a universally applicable, ‘natural’ morality or attested by ‘the
Consent of Nations’. But over time, thinking on the subject became
progressively more concerned with a limited agenda of legal issues
external to the state, as can be seen from a side-by-side comparison of
Grotius’ De iure belli ac pacis (1625) and Vattel’s Le Droit des
gens (1758). The bridge between the two was Wolff, who attempted a
description of the ius gentium according to scientific principles.31 Wolff
argued that collective society could (p. 8) not be promoted unless states
formed a universal political entity, a ‘supreme state’ from which would
proceed the law of nations:32
[A]ll the nations scattered throughout the whole world cannot
assemble together, as is self-evident, that must be taken to be
the will of all nations which they are bound to agree upon, if
following the leadership of nature they use right reason. Hence it
is plain, because it has to be admitted, that what has been
approved by the more civilized nations is the law of nations.33
Wolff was the progenitor of Vattel’s Le Droit des gens, which could claim
to be the first international law textbook.34 But Vattel’s text was at odds
with many of Wolff ’s conclusions, most notably with the concept of the
‘supreme state’, preferring instead to see the (European) state system as
a collective capable of acting in the common interest.35 Thus Vattel
asserted that the continent formed…
a political system in which the Nations inhabiting this part of the
world are bound by their relations and various interests into a
single body. It is no longer, as in former times, a confused heap
of detached parts, each of which had little concern for the lot of
the others, and rarely troubled itself over which did not
immediately affect it. The constant attention of sovereigns to all
that goes on, the custom of resident ministers, the continual
negotiations that take place, make of modern Europe a sort of
Republic, whose members—each independent but all bound
together by a common interest—unite for the maintenance of
order and the preservation of liberty. Hence arose that famous
scheme of the political balance, or the equilibrium of power.36
But greater minds than Vattel’s were at play. Immanuel Kant (1724–
1809)37 sought to re-characterize the binding character of international
law, proposing an international federation of republican states ( foedus
pacificum)—along substantially similar lines to Wolff ’s ‘supreme
state’38 —backed by coercive rules, as the only method by which a
secure and lasting peace could be achieved:
There is only one rational way in which states coexisting with
other states can emerge from the lawless condition of pure
warfare. Just like individual men, they must renounce their
savage and lawless freedom, adapt themselves to public
coercive laws, and thus form an international state (civitas
gentium), which would necessarily continue to grow until it (p.
9) embraced all the peoples of the earth. But since this is not the
will of the nations, according to their present conception of
international right…the positive idea of a world republic cannot
be realised. If all is not to be lost, this can at best find a negative
substitute in the shape of an enduring and gradually
expanding federation likely to prevent war. The latter may check
the current of man’s inclination to defy the law and antagonise
his fellows, although there will always be a risk of it bursting
forth anew.39
(B) From Positivism to the Present Day
The early modern period also saw the emergence of ‘sovereign’ states
from the claims of Empire, secular or religious. States emerged as
material, independent entities and international law was one of the ways
they developed of managing their relations. The apparent paradox of how
law could operate between sovereigns is resolved by the priority given to
consent in the formation of legal obligation and the role of co-operation in
interstate affairs—combined with the insight that sovereignty includes the
capacity to make commitments not merely temporary in
character.40 Indeed the law itself begins to say what it takes to become a
state and what, as a matter of law, it means to be a state.
Since the law of nations developed within a system wholly lacking in
other institutions, international law is highly state-centric, a position
reinforced from the early nineteenth century by the development and
subsequent dominance of positivism as an account of law and legal
obligation. Applied to jurisprudence, positivism was distinguished by the
notion that only positive law—that is, law which had in some form been
enacted or made by authority—could be considered true law.
International law, which could only with difficulty be seen to be made—
and then in a diffuse way—was caught up in this.
Positivism saw the law as a creation of power, a command of a sovereign
enforced by a sanction. International law was not law above states, but
law between states, enforceable, short of war, by way of moral
opprobrium or by reciprocal denial of benefits. Indeed according to some
positivists, notably John Austin (1790–1859), international law was only
‘law improperly so called’.41 In this sense, Austin conjectured:
[T]he law obtaining between nations is not positive law: for every
positive law is set by a given sovereign to a person or persons
in a state of subjugation to its author…[T]he law obtaining
between nations is law (improperly so called) set by general
opinion. The duties which it imposes are enforced by moral
sanctions: by fear on the part of nations, or by fear on the part of
sovereigns, of provoking general hostility, and incurring its
probable evils, in case they shall violate maxims generally
received and objected.42
Austin’s attitude to international law arose from its not complying with his
positivist axiom: in the international system there was no sovereign, thus
no command, and
References
(p. 10) sanctions were decentralized and sporadic. This was an extreme
position, not inherent in positivism as such but in the dogma of a single
sovereign as the fount of all law. Austin’s friend and intellectual
predecessor—Jeremy Bentham (1748–1832)—had no such issue with
international law, principally because he thought that national sovereigns,
just as they could proclaim laws for the benefit of their own communities,
could also together promulgate international law: they were not disabled
from collective action.43 Bentham, unlike Austin, also believed that a real
law might be enforced by a religious or moral sanction:
When a foreign state stands engaged by an express covenant
to take such a part in the enforcement of such a law as that in
question, this is one of the cases in which a foreign state is said
to stand with reference to such law in the capacity of a
guarantee. Of a covenant of this sort many examples are to be
met with in the history of international jurisprudence.44
A more refined version of positivist legal theory was elaborated by HLA
Hart(1907–92). Drawing on Kelsen, Hart distinguished three categories of
rules: (a) primary rules, concerning human action and interaction; (b)
secondary rules (rules of adjudication, enforcement, and change) which
underpin and operate in relation to the primary rules; and (c) the master
‘rule of recognition’, which enables the observer to identify the
components of the system and to treat them as legal. It was the internal
attitude, mainly of the officials, those responsible for the application of the
secondary rules, which marked the system as legal and not merely a set
of social rules. What mattered was not their acceptance of primary rules
but their acceptance of the system by which those rules were generated
and applied: it was the combination of primary and secondary rules which
was the essence of law.45
Measured by this more complex standard, Hart saw international law as a
marginal form, possessing some but not all the characteristics of a
developed legal system and then only imperfectly.46 It had only
rudimentary institutions of adjudication, enforcement, and change—no
courts of compulsory jurisdiction, no legislature, a frail internal attitude on
the part of officials: ‘no other social rules are so close to municipal law as
international law’,47 but social rules they remained.
This position was the subject of critical scrutiny by Brownlie,48 who
argued that whatever the theoretical overlay of law/not law imposed by
Hart (and positivists in general), the reality of international law told a
different story:
The lack of compulsory jurisdiction and a legislature is regarded
by Hart not as the special feature of a system which operates in
conditions of a certain kind, but as the marks of an outcast, of a
butterfly which is not wanted for a pre-determined collection.
Yet…the stability of international relations compares quite well
with internal law, given the grand (p. 11) total of municipal
systems ruptured by civil strife since 1945. And whilst it may be
said that international law lacks secondary rules, this matters
less if one accepts the view that secondary rules do not play
such a decisive role in maintaining the more basic forms of
legality in municipal systems.49
(C) The Basis of Obligation
In fact there are many examples of public order systems which lack an
identifiable sovereign but manage to function—ranging from the
customary laws of indigenous societies to the law of the European Union.
The classification of a system as legal does not predetermine its
effectiveness: witness various national law systems in greater or lesser
disarray. The question is whether the rules, traditions and institutions of a
given system enjoy at least some salience within the relevant society,
meet its social needs, and are applied through techniques and methods
recognizably legal—as distinct from mere manifestations of unregulated
force. There is no reason to deny to such systems the classification of
being legal—recognizing however that this leaves many questions open.
During the twentieth century, understanding of international law has been
further articulated through sociological theories,50 as well as, latterly, by
the resurgence of a more rigorous and pragmatic natural law
approach.51 In particular, John Finnis has defended the idea of an
international law—particularly customary international law—able to
emerge without being made by anyone with authority to make it, and
without the benefit of Hart’s secondary rules for the authorized generation
and alteration of rules:
[A]lthough there are direct ‘moral’ arguments of justice for
recognizing customs as authoritative…the general
authoritativeness of custom depends upon the fact that customformation has been adopted by the international community as
an appropriate method of rule creation. For, given this fact,
recognition of the authoritativeness of particular customs affords
all states an opportunity of furthering the common good of the
international community by solving interaction and co-ordination
problems otherwise insoluble. And this opportunity is the root of
all legal authority, whether it be the authority of rulers or (as
here) of rules.52
(p. 12) 3. The Reality and Trajectory of
International Law
(A) The State and Sovereignty53
States are ‘political entities equal in law, similar in form…the direct
subjects of international law’.54 Despite the manifest historical
contingencies involved, once statehood is generally recognized, a new
situation arises: the new state is ‘sovereign’, has ‘sovereignty’; and this is
true no matter how fragile its condition or diminutive its resources. In this
respect, sovereignty has not evolved much from the position described
by Vattel in the eighteenth century:
Since men are naturally equal, and a perfect equality prevails in
their rights and obligations…nations composed of men and
considered as so many free persons living together in a state of
nature, are naturally equal, and inherit from nature the same
obligations and rights. Power or weakness does not in this
respect produce any difference. A dwarf is as much a man as a
giant; a small republic is no less a sovereign state than the most
powerful kingdom.55
The state monopoly of sovereignty—and the capacity to act on the
international plane that it brings with it—is on occasion the subject of
criticism, to the point that it is suggested that the word be avoided
entirely.56 A stronger challenge is the opposition to sovereignty as the key
organizing concept of the international community. With the emergence
of privatization and globalization as influential forces within the world
economy, it is argued, sovereignty bears less resemblance to the way
things are, a perception heightened when viewed against a background
of anti-formalism and rule scepticism:57 from that perspective, sovereign
equality, a formal rule if ever there was one, is an obvious target.
These criticisms call for a response. For example Kingsbury emphasizes
the disadvantages of any normative transformation:
State sovereignty as a normative concept is increasingly
challenged, especially by a functional view in which the state
loses its normative priority and competes with supranational,
private and local actors in the optimal allocation of regulatory
authority. But discarding sovereignty in favour of a functional
approach will intensify inequality, weakening restraints on
coercive intervention, diminishing critical roles of the state as a
locus of identity as an autonomous zone of politics, and
redividing the world into zones.58
(p. 13) But it is also important to stress the flexibility of the concept of
sovereignty and its capacity to provide a common denominator for the
world’s manifold cultures and traditions such that an international society
is possible. As a concept, sovereignty carries limited substantive
consequences and is consistent with a range of internal forms of
government. It is also capable of responding to developments on the
international plane, as seen with the rise of international organizations.
The relationship there, however, is a symbiotic one, with institutions such
as the International Criminal Court bolstering the internal competence of
sovereignty through the principle of complementarity, at least in theory.59
Despite repeated suggestions of the ‘death’ of sovereignty—or its
irrelevance— its normative basis within international law remains. Indeed,
the system is ordered such that entrenched ideas are unlikely to
succumb, as distinct from being modified through practice or through the
accretion of new ideas and values. Such modification or accretion is at
the present time dependent on the will of states, and it is not difficult to
predict that sovereignty will retain its hold on the international plane for
the foreseeable future.60
(B) The Institutional Structure
One of the major developments of international law in the past century
has been the emergence of international organizations with universal
membership that seek to regulate the use of force between states.61Two
such organizations may be identified, each the product of a World War.
The first, the League of Nations, largely conceived by United States
President Woodrow Wilson,62 was established as part of the Peace of
Versailles in 1919;63 it disintegrated with that peace over the course of
the 1930s. The second, the United Nations, was established by the
Charter of the United Nations in 1945.64 Despite many tribulations, it still
occupies the field as the general purpose forum on the international
plane.
Although the two organizations are superficially similar, they chose
different strategies to regulate the interaction of states. The Covenant of
the League of Nations65 did not outlaw war per se, as distinct from
limiting the circumstances of resort to war
References
(p. 14) (Articles XII, XIII, XV). Indeed, it sought to use the institution of
war as a response to the violation of its provisions (Article XVI).
1. Should any Member of the League resort to war in disregard of its covenants under
Articles XII, XIII or XV, it shall ipsofacto be deemed to have committed an act of war
against all other Members of the League, which hereby undertake immediately to subject
it to the severance of all trade and financial relations, the prohibition of all intercourse
between their nationals and the nationals of the covenant-breaking State, and the
prevention of all financial, commercial and personal intercourse between the nationals of
the covenant-breaking State and the nationals of any other State, whether a Member of
the League or not.
Article XVI sought to guarantee the key commitments or covenants which
positioned the League as a system for collective security and as
guarantor of the performance of obligations under international law. A
central procedural requirement was that of unanimity or qualified
unanimity within the League Council, with guarantees for representation
of any Member ‘during the consideration of matters specifically affecting
the interests of that Member’ (Articles IV and V). In practice the idea of
‘automaticity’ of sanctions was watered down—but automaticity was one
of the factors which kept an isolationist United States outside the
League.66
The United Nations is a very different construct. It was created
independent of any peace treaty, avoiding the unfortunate associations
with a punitive peace that had dogged the League. The close connection
between commitment and sanction that characterised the Covenant was
ruptured and replaced by a broad discretionary power of the Security
Council. Where the Covenant overtly attempted to guarantee
international law, backed by a system of collective security, the Charter
outlawed the unilateral use of force outright save in defined and limited
circumstances (Articles 2(4) and 51). Articles 39 and 42 of the Charter
give the Security Council power to respond or not respond limited by the
deliberately vague need to identify a ‘threat to or breach of the peace or
act of aggression’ (see chapter 33). Where the League required
consultation and unanimity in the decision making process, the
Charter withdrew the veto from all except the five Permanent Members
(Article 27(3))—the US, the UK, France, the People’s Republic of China
(formerly the Republic of China), and Russia (formerly the USSR). The
veto ceased to be a concomitant of sovereignty and became a guarantee
that the five major powers could not be outvoted on key issues.67
A distinction might perhaps be drawn between the UN as an international
organization—a piece of legal machinery with its own international
personality (Articles 100, 104, and 105)—and its capacity to give effect to
the common policies of the members within broad areas of competence.
No trace of such a ‘constitutional’ aspect may be found in the language of
the Charter. But such an understanding may be hinted at in subsequent
interpretations. In Reparation for Injuries, for example, in
References
(p. 15) according to the United Nations claim-bringing capacity analogous
to that of a state, the Court said that the founding members of the UN
‘represent[ed] the vast majority of the members of the international
community’.68 But it is too much to say that the UN is pre-eminent within
the international system; we are only at the beginning of developments
which might justify such a conclusion.69 Notably, for the UN to function in
such a manner would require the better institution of democratic
accountability and respect for individual human rights at a global level.
(C) A System of International Laws
The reality of international law—whatever its theoretical underpinnings—
is clearly that of a system of laws, albeit one that cannot be uncritically
analogized to domestic legal systems.70 Moreover it is a system which,
day in and day out, is generally effective: millions of people are
transported daily by air and otherwise across state boundaries; those
boundaries are determined and extended; the resources so allocated are
extracted and sold across boundaries; states are represented and
committed. In Henkin’s words, ‘almost all nations observe almost all
principles of international law and almost all of their obligations almost all
71
of the time’.71 International law provides—in significant part—not merely
the vocabulary of interstate relations but its underlying grammar.
[T]he reality of international law, that is to say, the actual use of
rules described as rules of international law by governments, is
not to be questioned. All normal governments employ experts to
provide routine and other advice on matters of international law
and constantly define their relations with other States in terms of
international law. Governments and their officials routinely use
rules which they have for a very long time called ‘the law of
nations’ or ‘international law’…The law delimits the competence
of States. No journey by air could take place in reasonable limits
if it were not for a network of legal structures involving the
jurisdiction of States, the agreements of States and various
[International Civil Aviation Organization] procedures and
standards. The law also provides tools for constructing
institutions. Typically, what is, in effect, the loi cadre of the EEC
is a multilateral treaty.72
In the absence of any formal hierarchy—the negation of which is the
point of the established doctrine of the equality of states—the basis of
obligation in international law is found in the practice of states, which
regard certain processes as generating legal rights and obligations and
conduct themselves with international legal rules in (p. 16) mind:
obtaining legal advice about making and complying with the law;
instructions to state officials about their obligations under international
law; applying international law domestically (including making multiple
modifications of domestic law).73
International law has the characteristics of a system, not just a random
collection of rules: the basic constructs of personality, sources (including
treaties), interpretation, and responsibility, provide a framework within
which rules may be generated, applied and, increasingly, adjudicated
upon. The system is, though, institutionally deficient. The absence of a
legislature with universal authority and the consensual basis for judicial
jurisdiction reinforce the voluntarist and co-operative character of most
international law most of the time.
(D) The Trajectory of International Law
As demonstrated, the history of international law has been unusually
tumultuous, though perhaps not more so than any other system of law
developing over a comparable length of time. Have its fundamentals
changed? There is no legal reason why they should not. Indeed, the
system itself exists in a persistent and even necessary state of flux.
At a fundamental level, the power structures within the international
system are such that sovereignty and statehood remain the basic units of
currency. Thus, states may use their power to modify the law to make
rules about statehood itself—and they have done, notably about colonial
self-determination (chapter 5). They may qualify aspects of their
sovereignty of an institutional basis by becoming members of
international organizations (chapter 7) or accepting the jurisdiction of
international tribunals (chapter 32). And such undertakings are no longer
exceptional; there is no longer a presumption against commitment. These
developments (and others not supported by any institutional apparatus)
have greatly expanded the content of international law and in so doing
have diminished the sphere of domestic jurisdiction. The demands of
international co-operation to give effect to the widening range of
international obligations has both enhanced the rights of states and given
them more obligations to fulfil. But they have not altered the character of
the state nor the basis for the obligation to comply with international law.
The standard international legal relation remains that bilateral right and
duty between two states (and this is often true even though the formal
basis of the relationship is found in a multilateral treaty). It corresponds to
a simple civil obligation (whether in contract or tort (delict) or property) in
domestic legal systems. However, this simplified version of international
law is beginning to change. In part this is because of the commitment of
states to international organizations, in part to the use of international law
to create obligations in the general interest (at least of those states which
accept the obligations), such as for the protection of human rights or
of (p. 17) the environment. But there is no legal manifestation of the
‘international community’, the interests of which are promoted in this way.
Where there is an international organization, it may have rights as
against state members to implement (or even to enforce) accepted
standards. Where there is not, the burden falls upon other states to take
action to secure the implementation in the general interest of another
state’s obligations, without themselves being direct victims of any breach
of the law. It is not too much of an exaggeration to detect the
development of a limited system of rules of public law in modern
international law (and, for international organizations and tribunals, a
similar development of administrative law) (see further, chapter 27).
There is no international criminal law which applies to states as accused,
but there is an increasing body of rules, administered in part by
international tribunals, which subjects the conduct of individuals
(potentially including state officials) to international criminal law.
These developments, particularly in the field of human rights, have added
another category of personality (albeit heavily qualified) to those within
the international legal system, namely individuals and sometimes
corporations created by national law. It is no longer possible to deny that
individuals may have rights and duties in international law; but what rights
and duties they do have depends upon the operation of particular rules of
international law and not on any notion of natural personality operating
with the legal system. The importance attached to international human
rights within many modern constitutions has added another dimension to
the international legal system, an element of constitutional law where
identified values give a category of rules hierarchical authority. Thus, it is
maintained, egregious violations of fundamental rules of human rights
have constitutional consequences for an errant state, beyond those
prescribed by the standard law of state responsibility.
There are difficulties with this concept, both in identifying the particular
rules and in isolating the legal consequences of their violation. The
possibility has encouraged recent speculation about the
‘constitutionalization’ of international law, a concept which would appear
to imply that statehood is something which is conferred by the
international system (and which could be taken away), rather than
predominantly the consequence of material facts of which the law takes
account. But there is little evidence, even from the most progressive
perspective, that the foundation of international legal obligation and the
basic character of the legal system which is its product have been
significantly modified. Proposals for judicial review of Security Council
resolutions, for ‘global administrative law’ and so forth look fragile, given
the persistence of the institutional limitations of the international
system.74
(p. 18) (E) Scepticism and Idealism
This is not to say that the institutions of international law have not given
rise to undesirable outcomes. Wealth and power are extremely unequally
divided, within and between states, and the inequalities may be growing.
The absence of anything approaching an international constitution based
on democratic principles allows tyrants to safely graze, sometimes for
decades.75 Open breaches fester. But critics of international law have
tended to approach the subject in extreme ways—by dismissing the
project entirely,76 or by attributing to the agencies of reform almost
magical powers.77 Koskenniemi has seen the progress of international
law as the function of an irresolvable duality between apology and utopia:
A law which would lack distance from State behaviour, will or
interest would amount to a non-normative apology, a mere
sociological description. A law which would base itself on
principles which are unrelated to State behaviour, will or interest
would seem utopian, incapable of demonstrating its own content
in any reliable way. To show that international law exists, with
some degree of reality, the modern lawyer needs to show that
the law is simultaneously normative and concrete—that it binds
a State regardless of that State’s behaviour, will or interest but
that its content can nevertheless be verified by reference to
actual State behaviour, will or interest.78
It is easy to be sceptical of the claims of international law given the
discrepancies between the power of states, the complexity of modern
military systems and, more generally, the scope of the enterprise of
international relations. It is also facile. No doubt we should be critical—
and even sceptical—in our approach to particular questions and
proposals. The fact remains however that there are things which
manifestly need to be done which can be done only by collective action.
There is no point in one state ceasing to produce chlorofluorocarbons if
other states continue to do so. The solution to the global problem
precipitated by the hole in the ozone layer was achieved by co-ordinated
action.79 Political decolonization, which changed the face of the globe,
would not have happened so quickly or comprehensively without
international law’s articulation of priorities.80 The moratorium on the
hunting of the great whales has saved some species from extinction and
led to the substantial recovery
References
(p. 19) of others.81 The examples could be multiplied. In sum,
international law provides a set of techniques for addressing the huge
collective action problems presented by the co-existence of nearly 200
sovereign states. There is no large stock of available replacements for it.
Despite its critics, it provides a normative structure for a rules-based
system of international society. At present it is being tested, possibly to
destruction.82 But if it is destroyed we shall all be the worse for it.
References
Footnotes:
1
‘On First Looking into Chapman’s Homer’ (1816), reproduced in
Strachan, Routledge Literary Sourcebook on the Poems of John
Keats (2003) 79–82.
2
The term ‘international law’ was invented by Jeremy Bentham in 1789
and established itself in the 19th century in preference to the older ‘law of
nations’, itself a translation of the ius gentium of Grotius and the droit des
gens of Vattel: Janis (1984) 78 AJIL 405. For the history of international
law: Grewe, The Epochs of International Law (1984, tr Byers
2000); Koskenniemi, The Gentle Civilizer of Nations (2002); Neff,
in Evans (ed), International Law (3rd edn, 2010) 3; Simpson, in Crawford
& Koskenniemi (eds), Cambridge Companion to International Law (2012)
25; Koskenniemi, ibid, 47; Jouannet, The Liberal-Welfarist Law of
Nations (2012).
3
Though antecedents may be identified e.g. in the rules-based system
of diplomacy of New Kingdom Egypt (1550–1069BCE) and the Bronze
Age world system of the Near East: Liverani, in Cohen & Westbrook
(eds), Amarna Diplomacy (2000) 15; Westbrook, ibid, 28; Moran, The
Amarna Letters (1992). Generally: Bederman, International Law in
Antiquity (2001).
4
c1492–1546. Vitoria’s lectures at the University of Salamanca were
transcribed by his students: e.g. De Indis (1532); De Iure belli
Hispanorum in barbaros (1532). Further: Pagden & Lawrance
(eds), Vitoria: Political Writings (1991); Scott, The Spanish Origin of
International Law (1934, repr 2000).
5
1550–1608. De Legationibus Libri Tres (1585); Hispanicae
advocationis libri duo (1613). With the emergence of Grotius, Gentili’s
contribution to international law was forgotten until his ‘rediscovery’ by
Holland: Haggenmacher, in Bull, Kingsbury & Roberts (eds), Hugo
Grotius and International Relations (1990) 133. Further: Kingsbury (1998)
92 AJIL 713; (2008) 79 BY 1.
6
1563–1645. Mare Liberum (1609); De iure belli ac pacis (1625).
Generally: Tuck, The Rights of War and Peace (1999) ch 3; Miller, in
Zalta (ed), The Stanford Encyclopedia of Philosophy (2011), available
at www.plato.stanford.edu/entries/grotius/.
7
1632–1694. De iure naturae et gentium (1672). Further: Tuck (1999) ch
5.
8
1679–1754. Ius naturae methodo scientifica pertractatum (1740–
1748); Ius gentium methodo scientifica pertractatum (1750). Further:
Hettche, in Zalta (ed), The Stanford Encyclopedia of Philosophy (2008),
available at www.plato.stanford.edu/entries/wolff-christian/#HumSci.
9
1714–1767. Le Droit des gens (1758). Further: Tuck (1999) ch 6.
10
1225–1274. Principally: Summa Theologia (1274) and the Summa
contra Gentiles (c1264–1274).
11
Further: Kingsbury & Straumann, in Besson & Tasioulas (eds), The
Philosophy of International Law (2010) 33.
12
Draper, in Bull et al (1990) 177, 181–5. On the concept of ‘just war’:
chapter 33.
13
13
Aquinas, Summa Theologia (1274, tr English Dominican Province
1974), Question 4, Art 1.
14
Generally: Anghie, Imperialism, Sovereignty and the Making of
International Law (2005).
15
Brownlie, in Bull & Watson (eds), The Expansion of International
Society (1984) 357.
16
E.g. Instrument for the Prolongation of the Peace between the
Emperor of the Holy Roman Empire and the Sultan of Turkey, 1 July
1649, 1 CTS 457. The idea that the Ottoman Empire was only accepted
into international society with the Treaty of Paris, 30 March 1856, 114
CTS 409 is a solecism.
17
Generally: Peyrefitte, The Collision of Two Civilizations (1993). The
Qianlong Emperor refused Macartney’s embassy and later wrote to King
George III explaining in greater detail the reasoning behind his rejection
of the English request. He concluded with the threat that any attempt by
English merchants to exceed the minimal freedoms already granted
would be met with instant expulsion (‘[i]n that event your barbarian
merchants will have had a long journey for nothing’) and the injunction
that the English king was to ‘[t]remblingly obey and show no negligence’.
18
24 October 1860, 123 CTS 71 (China–Great Britain); 25 October
1860, 123 CTS 79 (China–France); 14 November 1860, 123 CTS 125
(China–Russia).
19
Generally: Yamauchi (1996) 24 Hitotsubashi JLP 1.
20
Generally: Packenham, The Scramble for Africa (1991); Anghie,
‘Berlin West Africa Conference (1884–5)’ (2007) MPEPIL. The
Conference was capped by the General Act concerning the Congo, 26
February 1885, 165 CTS 485, which in effect formalized the terms of the
Scramble. Also: chapter 9.
21
Liberia, a free settlement of former slaves, was never colonized.
Morocco was divided into Spanish and French zones but maintained a
certain identity: Nationality Decrees Issued in Tunis and Morocco (1923)
PCIJ Ser B No 4; Rights of Nationals of the United States of America in
Morocco (France v US), ICJ Reports 1952 p 176.
22
22
The SS Lotus (1927) PCIJ Ser A No 10, 18.
23
1 Oppenheim (1st edn, 1904) 18. Further: chapter 4.
24
Polish Postal Service in Danzig (1925) PCIJ Ser B No 11, 32–41.
Also: Steiner and Gross v Polish State (1928) 4 ILR 291; Parlett, The
Individual in the International Legal System (2010) ch 2.
25
On the history of international organizations: Klabbers, An Introduction
to International Institutional Law (2nd edn, 2009) ch 2;
Reinalda, Routledge History of International Organizations (2009).
26
For public regulation of monetary, trade and economic issues: RuizFabri, in Crawford & Koskenniemi (2012) 352. For protection of foreign
investment: chapter 28.
27
For the ILC’s work: Watts, Pronto & Wood, 1–4, The International Law
Commission, 1949–1998 and 1999–2009 (1999, 2010).
28
Further: Pellet, in Zimmerman, Tomuschat & Oellers-Frahm (eds), The
Statute of the International Court of Justice (2006) 677. On the sources of
international law: chapter 2.
29
Further: Gierke, Political Theories of the Middle Age (1900, tr Maitland
1938) 73, 167, 172. Also: Neff, in Evans (3rd edn, 2010) 3, 6–8.
30
Grotius, De iure belli ac pacis (1625, ed Tuck 2005) I.Prelim.§§XVIII,
XXVII.
31
During the 1740s, Wolff published a vast work attempting to describe
natural law according to science. The last volume applied these
principles to the law of nations: Wolff, Ius Gentium Methodo Scientifica
Pertractatum (1749, tr Drake & Hemelt 1934).
32
Tuck (1999) 187–8.
33
Wolff (1749, tr Drake & Hemelt 1934) §20.
34
The influence of Vattel was perhaps strongest in the newly formed
United States of America. Alongside Grotius and Pufendorf, Jefferson
referred to Vattel frequently: Sears (1919) 13 APSR 379; Cohen &
Jefferson (1971) 119 U Penn LR 823. George Washington borrowed a
copy of Le Droit des gens from the New York public library in 1789 and
failed to return it: AFP, ‘George Washington’s library book returned, 221
years later’ (The Guardian, 20 May 2010). Generally: Janis, The
American Tradition of International Law (2004).
35
Tuck (1999) 191–2. Also: Allott, The Health of Nations (2002) 412–16,
lamenting Vattel’s victory over Wolff.
36
Vattel, Le Droit des gens (1758) III.iii.§47.
37
On Kant and international law: Tuck (1999) ch 7; Perreau-Saussine, in
Besson & Tasioulas (2010) 53. For Kant’s own work see the polemic
‘Perpetual Peace: A Philosophical Sketch’ (1795), reproduced in Reiss
(ed), Kant: Political Writings (2nd edn, 1992) 93.
38
Perreau-Saussine, in Besson & Tasioulas (2010) 53, 59 n33; cf Tuck
(1999) 219–20.
39
Kant (1795) 105.
40
The SS Wimbledon (1923) PCIJ Ser A No 1, 25.
41
Austin, The Province of Jurisprudence Determined (1832, 1995 edn)
123.
42
Ibid, 171.
43
For an analysis of Bentham in this respect: Janis (1984) 78 AJIL 405,
410–15.
44
Bentham, An Introduction to the Principles of Morals and
Legislation (1789, 1970 edn) 68–70.
45
Hart, The Concept of Law (2nd edn, 1994) ch 5.
46
Ibid, ch 10.
47
Ibid, 237.
48
Brownlie (1981) 52 BY 1.
49
Ibid, 8.
50
Notably through the work of Myers McDougal and the ‘Yale’ or ‘New
Haven’ school of international legal thinking: e.g. McDougal & Burke, The
Public Order of the Oceans (1962); McDougal, Lasswell & Chen, Human
Rights and World Public Order (1980); McDougal (ed), Studies in World
Public Order (1987); McDougal & Felciano, The International Law of
War (1994). Further: Reisman (1992) 86 PAS 118.
51
Neff, in Evans (3rd edn, 2010) 3, 18–19. Further: Orakhelashvili,
‘Natural Law and Justice’ (2007) MPEPIL.
52
Finnis, Natural Law and Natural Rights (2nd edn, 2011)
244 (emphasis added); the whole passage (ibid, 238–45) should be read.
53
Generally: Crawford, in Crawford & Koskenniemi (2012) 117.
54
Reparation for Injuries suffered in the Service of the United Nations,
ICJ Reports 1949 p 174, 177–8.
55
Vattel, Le Droit des gens (1758) I.Prelim.§18.
56
‘[T]he sovereignty of states in international relations is essentially a
mistake, an illegitimate off spring’: Henkin (1999) 68 Fordham LR 1, 2.
57
E.g. Kennedy (2008) 34 Ohio NULR 827.
58
Kingsbury (1998) 9 EJIL 599, 599.
59
ICC Statute, 17 July 1998, 2187 UNTS 3, Art 17. Further: Benzing
(2003) 7 Max Planck UNYB 591. For complementarity in practice:
Nouwen, Complementarity in the Line of Fire (2012).
60
Skinner, in Kalmo & Skinner (eds), Sovereignty in Fragments (2010)
26, 46.
61
Further: Crawford, in Fox (ed), The Changing Constitution of the
United Nations (1997) 3. On the history of international
organizations: Claude, Swords into Plowshares (4th edn, 1984).
62
Schwietzke, ‘Fourteen Points of Wilson (1918)’ (2007) MPEPIL.
63
Generally: Fleury, in Boemeke, Feldman & Glaser (eds), The Treaty of
Versailles (1998) 507. This association with Versailles was to ultimately
undermine the Covenant and the League, as both became synonymous
with the ‘Carthaginian peace’ of massive reparations and the war guilt
clause: Keynes, The Economic Consequences of the Peace (1920);
Mantoux, The Carthaginian Peace, or The Economic Consequences of
Mr Keynes (1946).
64
65
26 June 1945, 892 UNTS 119.
65
28 June 1919, 225 CTS 195.
66
E.g. Walters, 1 History of the League of Nations (1952) 66–74.
67
On proposals for the reform of the Security Council: Fassbender, UN
Security Council Reform and the Right of Veto (1998); Bourantonis, The
History and Politics of UN Security Council Reform (2005); Blum (2005)
99 AJIL 632.
68
ICJ Reports 1949 p 174, 185.
69
Further: Lavalle (2004) 41 NILR 411; Talmon (2005)
99 AJIL 175; Bianchi (2006) 17 EJIL 881; Joyner (2007)
20 LJIL 489; Hinojosa Martinez (2008) 57 ICLQ 333;
Orakhelashvili, Collective Security (2011) 220–2.
70
The value of municipal law analogies was proclaimed (to the point of
overstatement) by Hersch Lauterpacht (1897–1960): Lauterpacht, Private
Law Sources and Analogies of International Law (1927);
Lauterpacht, Function of Law (1933, repr 2011) ch 6.
71
Henkin, How Nations Behave (2nd edn, 1979) 47; cf Koh (1997)
106 Yale LJ 2599.
72
Brownlie (1981) 52 BY 1, 1–2.
73
Cf Crawford (1979) 73 AJIL 628. A generation later the picture would
be the same.
74
E.g. Alvarez (1996) 90 AJIL 1; Martenczuk (1999)
10 EJIL 517; Petculescu (2005) 52 NILR 167; Hinojosa Martinez (2008)
57 ICLQ 333. On the emergence of a ‘global administrative
law’: Kingsbury, Krisch & Stewart (2005) 68 LCP 15; Stewart (2005)
68 LCP 63; Dyzenhaus (2005) 63 LCP 127; McLean (2005) 63 LCP 167.
Further: chapter 27.
75
Brownlie (1981) 52 BY 1, 2 (admitting that at any one time
‘international society contains a certain number of dangerous
eccentrics’).
76
Notably within the US academy: e.g. Goldsmith & Posner, The Limits
of International Law (2005).
77
77
E.g. Pogge, in Crawford & Koskenniemi (2012) 373. For a more
hesitant ‘utopian’ view: Allott, The Health of Nations (2002).
78
Koskenniemi, From Apology to Utopia (2nd edn, 2005) 17. For a
potential ‘third way’: Bowring, The Degradation of the International Legal
Order (2008).
79
Vienna Convention for the Protection of the Ozone Layer, 22 March
1985, 1513 UNTS 324; Montreal Protocol on Substances that Deplete
the Ozone Layer, 16 September 1987, 1522 UNTS 28. Further: Held,
Hervey & Theros (eds), The Governance of Climate Change (2011). For
international environmental law generally: chapter 15.
80
Generally: Pahuja, Decolonising International Law (2011).
81
International Convention for the Regulation of Whaling, 2 December
1946, 161 UNTS 72, Art VIII and Schedule I, §10(d–e). Further:
Gillespie, Whaling Diplomacy (2005).
82
Generally: Pellet, in Crawford & Nouwen (eds), 3 Select Proceedings
of the European Society of International Law (2010) 81.
2 The Sources of International Law
(p. 20) 1. Introduction
International law provides a normative framework for the conduct of
interstate relations. In this sense, international society is no exception to
the maxim of ibi societas, ibi ius: where there is social structure, there is
law. The sources of international law define the rules of the system: if a
candidate rule is attested by one or more of the recognized ‘sources’ of
international law, then it may be accepted as part of international law.
Simultaneously, the diffuse character of the sources highlights the
decentralization of international law-making.
The formally recognized sources of international law are reflected in
Article 38 of the Statute of the International Court of Justice.1 These
sources are oft en presented—as in Article 38—as separate, but they
influence each other in practice.
It is common for writers to differentiate between formal and material
sources of law. Formal sources are those methods for the creation of
rules of general application which are legally binding on their addressees.
The material sources provide evidence of the existence of rules which,
when established, are binding and of general application. In the context
of international relations, however, the use of the term ‘formal source’ is
misleading since it conjures up notions associated with the constitutional
machinery of law-making within states. No such machinery exists for the
creation of international law. Decisions of the International Court,
unanimously supported resolutions of the General Assembly concerning
matters of law, and important multilateral treaties seeking to codify or
develop rules of international law are all significant to varying degrees.
Nonetheless they are not binding on states generally. In this sense
‘formal sources’ hardly exist in international law. As a substitute, and
perhaps as a ‘constitutional’ equivalent to formal sources, international
law works on the basis that the general consent or acceptance of states
can create rules of general application. The definition of custom in
international law is essentially a statement of this principle, and not a
reference to ancient custom as in English law.
(p. 21) In international law the distinction between formal and material
sources is consequently difficult to maintain. The former reduces to a
quasi-constitutional principle of inevitable but unhelpful generality. What
matters more is the variety of material sources. These are the allimportant evidence of a normative consensus among states and other
relevant actors concerning particular rules or practices. Decisions of the
International Court, resolutions of the General Assembly, and ‘lawmaking’ multilateral treaties are evidence of the attitude of these actors
toward particular rules and of the presence or absence of consensus.
Moreover, there is a process of interaction which gives these a status
somewhat higher than other ‘material sources’. Neither an unratified
treaty nor a report of the International Law Commission (ILC) to the
General Assembly has any binding force as a matter of treaty law or
otherwise. However, such documents stand as candidates for public
reaction, approving or not as the case may be. They may approach a
threshold of consensus and confront states which wish to oppose their
being given normative force in a significant way.
The law of treaties concerns the content of specific obligations accepted
by the parties (states and other persons with treaty-making power), that
is, it concerns the incidence of obligations resulting from express
agreement. Treaties may be bilateral or multilateral,2 but even if
multilateral the obligations they create may run primarily between the two
parties concerned—for example, the sending state and the receiving
state in the case of diplomatic relations. But even if genuinely multilateral,
the constraints of the treaty form still apply: in principle, treaties neither
oblige nor benefit third parties without their consent. Thus the incidence
of particular conventional obligations is a matter distinct from the sources
of general international law, which is made by more diffuse processes.
Treaties as such are a source of obligation and not a source of rules of
general application. Treaties may however form an important material
source in that they may be reflective of, or come to embody, customary
international law.3
2. The Statute of the International Court of
Justice
Historically the most important attempt to specify the sources of
international law was Article 38 of the Statute of the Permanent Court of
International Justice,4
References
(p. 22) taken over nearly verbatim5 as Article 38 of the Statute of the
International Court of Justice:
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
States;
(b) international custom, as evidence of a general practice
accepted as law;
(c) the general principles of law recognized by civilized
nations;
(d) subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto.
Article 59 provides that decisions ‘have no binding force except between
the parties and in respect of that particular case’.
These provisions are expressed in terms of the function of the Court.
However they reflect the previous practice of arbitral tribunals, and Article
38 is often put forward as a complete statement of the sources of
6
international law.6 Yet the article makes no reference to ‘sources’ and, on
close inspection, cannot be regarded as a straightforward enumeration.
The first question is whether paragraph 1 creates a hierarchy of sources.
There is no express hierarchy, but the draftsmen stipulated an order, and
in one draft the word ‘successively’ appeared.7 In practice subparagraphs (a) and (b) are the most important: we can explain the priority
of (a) by the fact that it refers to a source of obligation which will ordinarily
prevail as being more specific.8 But it is unwise to think in terms of
hierarchy as dictated by the order (a) to (d) in all cases. Source (a)
relates to obligations; in some circumstances a treaty does not give rise
to a corresponding
References
(p. 23) obligation of a state party, notably when it is contrary to a
peremptory norm of international law;9 and in all cases the content of a
treaty obligation depends on the interpretation of the treaty, a process
governed by international law.10 A treaty may even be displaced by a
subsequent rule of customary international law, at least where its effects
are recognized in the subsequent conduct of the parties.11
Dating back to 1920, Article 38 has been described, inter alia, as out of
date, narrow and ill-adapted to modern international relations.12 But in
practice it is malleable enough, and its emphasis on general acceptance
is right: customary law is not to be confused with the last emanation of
will of the General Assembly.13
3. International Custom14
(A) The Concept of Custom
Article 38 refers to ‘international custom, as evidence of a general
practice accepted as law’. The wording is prima facie defective: the
existence of a custom is not to be confused with the evidence adduced in
its favour; it is the conclusion drawn by someone (a legal adviser, a court,
a government, a commentator) as to two related questions: (a) is there a
general practice; (b) is it accepted as international law? Judge Read has
described customary international law as ‘the generalization of the
practice of States’,15 and so it is; but the reasons for making the
generalization involve an evaluation of whether the practice is fit to be
accepted, and is in truth generally accepted, as law.
Although the terms are sometimes used interchangeably, ‘custom’ and
‘usage’ are terms of art with different meanings. A usage is a general
practice which does not reflect a legal obligation: examples include
ceremonial salutes at sea and the practice of granting certain parking
privileges to diplomatic vehicles.16 Such practices are carried on out of
courtesy (or ‘comity’) and are neither articulated nor claimed as legal
References
(p. 24) requirements. International comity is a species of accommodation:
it involves neighbourliness, mutual respect, and the friendly waiver of
technicalities.17 However, particular rules of comity, maintained
consistently without reservation, may develop into rules of customary
law.18
The material sources of custom are manifold and include: diplomatic
correspondence, policy statements, press releases, the opinions of
government legal advisers, official manuals on legal questions (e.g.
manuals of military law), executive decisions and practices, orders to
military forces (e.g. rules of engagement), comments by governments on
ILC drafts and accompanying commentary, legislation, international and
national judicial decisions, recitals in treaties and other international
instruments (especially when in ‘all states’ form),19 an extensive pattern
of treaties in the same terms, the practice of international organs, and
resolutions relating to legal questions in UN organs, notably the General
Assembly. The value of these sources varies and will depend on the
circumstances.
(B) The Elements of Custom
(i) Duration and consistency of practice
The question of uniformity and consistency of practice is very much a
matter of appreciation. Complete uniformity of practice is not required,
but substantial uniformity is, and for this reason in Anglo-Norwegian
Fisheries the Court refused to accept the existence of a 10-mile rule for
the closing line of bays.20
Provided the consistency and generality of a practice are established, the
formation of a customary rule requires no particular duration. A long
practice is not necessary, an immemorial one even less so: rules relating
to airspace and the continental shelf have emerged following a fairly
quick maturation period.21 In North Sea Continental Shelf the Court said:
Although the passage of only a short period of time is not necessarily, or of itself, a bar to
the formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement would be that within
the period in question, short though it might be, State practice, including that of the
States whose interests are specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked;—and should moreover have
occurred in such a way as to show a general recognition that a rule of law or legal
obligation is involved.22
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(p. 25) This sets a high standard: it was met in the case of some of the
rules concerning the continental shelf articulated in the Truman
Proclamation, but not the delimitation rule which the ILC had proposed as
a matter of convenience and which was not contained in that
Proclamation.23
(ii) Generality of practice
Complete consistency is not required; often the real problem is to
distinguish mere abstention from protest by a number of states in face of
a practice followed by others. Silence may denote either tacit agreement
or a simple lack of interest in the issue. It may be that the Permanent
Court in the Lotus case misjudged the consequences of absence of
protest and the significance of fairly general abstention from prosecutions
by states other than the flag state.24 In the event the Geneva Convention
on the High Seas adopted the rule which the Court had rejected—a rare
example of the overruling by treaty of a decision of the Court on a point of
custom.25
In Fisheries Jurisdiction(UK v Iceland) the International Court referred to
the extension of a fishery zone up to a 12nm limit ‘which appears now to
be generally accepted’ and to ‘an increasing and widespread acceptance
of the concept of preferential rights for coastal states’ in a situation of
special dependence on coastal fisheries.26But while refusing to ‘render
judgment sub specie legis ferendae, or [to] anticipate the law before the
legislator has laid it down’,27 the Court did in fact articulate a rule of
preferential coastal state rights, a transitional step towards the Exclusive
Economic Zone regime which would be included in the United Nations
Convention on the Law of the Sea28 (UNCLOS).
(iii) ‘Accepted as law’: opinio iuris sive necessitatis
The Statute of the International Court refers to ‘a general practice
accepted as law’. Some writers do not consider this psychological
element to be required for custom,29 but something like it must be
necessary.30 It is ordinarily expressed in terms of the Latin
neologism opinio iuris sive necessitatis, a phrase which has, perhaps
regrettably,
References
(p. 26) become established.31 But the idea of normativity—the articulation
of a practice as binding—is not new: as a necessary requirement of a
customary rule it goes back to Isidore of Seville (c540–636CE) and
beyond.32
The International Court will often infer the existence of opinio iuris from a
general practice, from scholarly consensus or from its own or other
tribunals’ previous deter-minations.33 But in a significant minority of cases
the Court has displayed greater rigour. Examples include the Lotus,
where France asserted that the flag state has exclusive criminal
jurisdiction over accidents occurring on the high seas. The Permanent
Court rejected the French claim:
Even if the rarity of the judicial decisions to be found among the reported cases were
[established]…it would merely show that States had often, in practice, abstained from
instituting criminal proceedings, and not that they recognized themselves as being
obliged to do so; for only if such abstention were based on their being conscious of
having a duty to abstain would it be possible to speak of an international custom. The
alleged fact does not allow one to infer that States have been conscious of having such a
duty; on the other hand…there are other circumstances calculated to show that the
contrary is true.34
Presumably the same principles should apply to both positive conduct
and abstention, yet in the Lotus the Court was not ready to accept
continuous conduct as evidence of a legal duty and required a high
standard of proof of opinio iuris.35
Again in North Sea Continental Shelf Denmark and the Netherlands
argued that the equidistance–special circumstances method of delimiting
the continental shelf had become accepted as law by the date of the
Convention on the Continental Shelf.36 The Court declined to presume
the existence of opinio iuris based on the practice as at that date. Nor did
it accept that the subsequent practice of states based upon the
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(p. 27) Convention had produced a customary rule. However, the
decision is not incompatible with the view that existing general practice
raises a presumption of opinio iuris. Before 1958, there was little practice
concerning the equidistance principle apart from the records of the ILC,
which revealed the experimental aspect of the principle at that time.37 As
to post-1958 practice, the Court’s rejection of the argument rested
primarily on two factors: (a) Article 6 was directed at agreement and was
not of a norm-creating character;38 (b) the convention having been in
force for less than three years, the state practice was inadequate ‘to
show a general recognition that a rule of law or legal obligation is
involved’.39 But the tenor of the judgment is hostile to the presumption
of opinio iuris.40
In Nicaragua,41 the Court expressly referred to North Sea Continental
Shelf:
In considering the instances of the conduct…the Court has to emphasize that, as was
observed in the North Sea Continental Shelf cases, for a new customary rule to be
formed, not only must the acts concerned ‘amount to a settled practice’, but they must be
accompanied by the opinio juris sive necessitatis. Either the States taking such action or
other States in a position to react to it, must have behaved so that their conduct is
‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of
law requiring it. The need for such a belief, i.e., the existence of a subjective element, is
implicit in the very notion of the opinio juris sive necessitatis’.42
Likewise, the Court in Diallo took the more exacting approach to custom,
and to the requirement of opinio iurisin particular. The Court noted the
inconclusiveness and insufficiency of mere practice:
The fact…that various international agreements, such as agreements for the promotion
and protection of foreign investments and the Washington Convention, have established
special legal régimes governing investment protection, or that provisions in this regard
are commonly included in contracts entered into directly between States and foreign
investors, is not sufficient to show that there has been a change in the customary rules of
diplomatic protection; it could equally show the contrary.43
The choice of approach appears to depend on the character of the issues
—that is, the state of the law may be a primary point in contention—and
on the discretion of the Court. The approach may depend on whether
practice is largely treaty-based (in which case opinio iuris is sufficient to
expand application of the treaty norms as custom), or whether the law on
the question is still developing.
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(p. 28) (C) The Relativity of Custom
The term ‘general international law’ should not be taken to require
universal acceptance of a rule by all subjects of international law. True,
there are rules of international law which are universally accepted, and
the system of international law is daily reaffirmed by states in making and
responding to claims of right. But the principles of the system—consent,
the requirements for custom, the persistent objector—mean that
particular rules may have less than universal acceptance, yet still form
part of international law. Similarly a rule of international law to which a
state has not expressly or by implication accepted may not be opposable
to that state.
(i) The persistent objector
The reduction of custom to a question of special relations is illustrated by
the rule that a state may exempt itself from the application of a new
customary rule by persistent objection during the norm’s
formation.44 Evidence of objection must be clear, and there is a
rebuttable presumption of acceptance. Whatever the theoretical
underpinnings of the persistent objector principle, it is recognized by
international tribunals,45 and in the practice of states. Indeed given the
majoritarian tendency of international relations the principle is likely to
have increased prominence.46 However, with the increasing emergence
of communitarian norms, reflecting the interests of the international
community as a whole, the incidence of the persistent objector rule may
be limited.47 More common may be disagreement as to the meaning or
scope of an accepted rule, as to which the views of particular disputing
states will not be decisive.48 Nonetheless the persistent objector rule
reinforces the principle of state consent in the creation of custom.
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(p. 29) (ii) The subsequent objector
In Anglo-Norwegian Fisheries part of the Norwegian argument was that
even if the 10nm closing line for bays and certain rules were part of
general international law, they did not bind Norway which had
‘consistently and unequivocally manifested a refusal to accept
them’.49 The UK admitted the general principle, while denying that
Norway had manifested its supposed refusal to accept the rules. Thus it
regarded the question as one of persistent objection. The Court did not
deal with the issue in this way, however. Its ratio was that Norway had
departed from the alleged rules, if they existed, and that other states had
acquiesced in this practice. But the Court was not explicit with respect to
the role of acquiescence in validating a subsequent contractingout.50Here one must face the problem of change in a customary rule.51 If
a substantial group of states asserts a new rule, the momentum of
increased defection, complemented by acquiescence, may result in a
new rule,52 as was the case concerning the continental shelf. If the
process is slow and neither the new nor the old rule has an overwhelming
majority of adherents, the consequence is a network of special relations
based on opposability, acquiescence and even perhaps historic title. This
situation will normally be transitional in character—though in affairs of
state, transitions can take some time.
(iii) Bilateral relations and local custom
Some customary norms may be practised only within a particular region,
creating a ‘local’ customary law. Such a norm is reducible to the level of a
bilateral relation, as in the Right of Passage case.53 There, Portugal
relied on such a custom to establish a right of access to Portuguese
enclaves in Indian territory inland from the port of Daman. The Court
held:
It is difficult to see why the number of States between which a local custom may be
established on the basis of long practice must necessarily be larger than two. The Court
sees no reason why long continued practice between two States accepted by them as
regulating their relations should not form the basis of mutual rights and obligations
between two States.54
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(p. 30) When considering the formation of bilateral custom, general
formulae concerning custom will not supplant the need for case-by-case
analysis. Where a party seeks to vary the general law on a bilateral
basis, the proponent of the special right has to give proof of a sense of
obligation on the part of the territorial sovereign. In such circumstances
the notion of opinio iuris merges into the principle of
acquiescence.55 In Right of Passage, the transit arrangement dated back
to the Mughal period, and went unquestioned by the British and later
independent Indian governments.56
The best-known example of a regional custom is that of diplomatic
asylum in Latin-America, concerning the right of the embassies of other
states to give asylum to political refugees.57 Specifically Columbia relied
against Peru on ‘an alleged regional or local custom peculiar to LatinAmerican States’.58 The Court observed:
The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party. The
Colombian Government must prove that the rule invoked by it is in accordance with a
constant and uniform usage practised by the States in question, and that this usage is
the expression of a right appertaining to the State granting asylum and a duty incumbent
on the territorial State.59
The Court went on to remark that ‘even if such a custom existed between
certain Latin-American States only, it could not be invoked against Peru
which, far from having its attitude adhered to it, has on the contrary
repudiated it’.60 Other attempts to establish a norm of local custom before
an international court or tribunal have likewise failed.61
4. Treaties
Treaties are the most important source of obligation in international
law.62 ‘Law-making’ treaties moreover have a direct influence on the
content of general international law, an influence not conveyed
adequately by their designation as material sources.
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(p. 31) Bilateral treaties may provide evidence of customary rules,63 and
indeed there is no dogmatic distinction between ‘law-making’ treaties and
other treaties. If bilateral treaties, for example those on extradition, are
habitually framed in the same way, a court may regard the standard form
as law even in the absence of a treaty obligation in that case.64 However,
caution is necessary in evaluating treaties for this purpose.
(A) ‘Law-Making’Treaties
So-called ‘law-making’ treaties create legal obligations, the one-time
observance of which does not discharge the obligation. Thus a treaty for
the joint carrying-out of a single enterprise is not law-making, and
fulfilment of the treaty’s objects will discharge the obligation. Law-making
treaties create general norms, framed as legal propositions, to govern the
conduct of the parties, not necessarily limited to their conduct inter se—
indeed the expression of an obligation in universal or ‘all states’ form is
an indication of an intent to create such a general rule. The Declaration of
Paris of 1856 (on neutrality in maritime warfare), the Hague Conventions
of 1899 and of 1907 (on the law of war and neutrality), the Geneva
Protocol of 1925 (on prohibited weapons), the General Treaty for the
Renunciation of War of 1928, the Genocide Convention of 1948, and the
four Geneva Conventions of 1949 (on the protection of civilians and other
groups in time of war) are examples of this type. Moreover, those parts of
the UN Charter that do not spell out the constitutional competence of the
organization’s organs, and other organizational questions, have the same
character—notably the principles set out in Article 2 and further
articulated in the Friendly Relations Declaration of 1970.65 UNCLOS is a
more recent example.66 Although treaties are as such binding only on the
parties, the number of parties, the explicit acceptance of these rules by
states generally and, in some cases, the declaratory character of the
provisions combine to produce a powerful law-creating effect.67 Nonparties may by their conduct accept the provisions of a convention
References
(p. 32) as representing customary international law.68 This has been the
case with Hague Convention IV of 190769 and the annexed rules on land
warfare. In special circumstances even an unratified treaty may be
regarded as evidence of generally accepted rules.70
In North Sea Continental Shelf71 the principal issue was the extent to
which, if at all, Germany was bound by the provisions of the Geneva
Convention on the Continental Shelf (GCCS) which it had signed but not
ratified. The Court concluded that only the first three articles represented
emergent or pre-existing customary law.72 The basis on which the Court
distinguished between articles included reference to the faculty of making
unilateral reservations, a faculty which applied to some articles but not to
those which, by inference, had a more fundamental status. That was a
case where the treaty itself made the distinction; by contrast the mere
existence of reservations where no provision for reservations is made in
the treaty will not by itself annul the probative value of its
provisions.73 The Court concluded, further, that the provision on
delimitation of shelf areas in Article 6 of the Convention had not become
a rule of customary law by virtue of the subsequent practice of states
and, in particular, of non-parties.74 The six dissenting judges regarded
the Convention as having greater potency, particularly with respect to the
generation of rules after the conclusion of the Convention.75 In both Gulf
of Maine76 and Continental Shelf (Libya/Malta),77 considerable weight
was accorded to aspects of UNCLOS, although it was not yet in force.
According to Baxter, aft er North Sea Continental Shelf it became clear
that ‘the treaty-making process may also have unwelcome side-effects’:
this is the so-called ‘Baxter paradox’.78 In particular, he notes that treaties
declaratory or constitutive of custom may ‘arrest’ its further development
and that until ‘the treaty is revised or amended, the customary
international law will remain the image of the treaty as it was before it
was revised.’79
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(p. 33) (B) Relation of Treaties to Custom
When norms of treaty origin crystallize into new principles or rules of
customary law, the customary norms retain a separate identity even
where the two norms may be identical in content. Thus a state which fails
to become a party to a law-making treaty may find itself indirectly affected
by the norms contained in the treaty—unless its opposition rises to the
level of persistent objection. Even then its position may be awkward: it
will be unable to invoke the new rule itself but unable also to secure from
other states continued adherence to the old. This was the experience of
the US and Japan in continuing to assert a maximum 3nm territorial sea
once it became clear that most states rejected that standard in favour of
12nm.80 More generally the US has sought to rely on provisions of
UNCLOS—for example in the field of maritime transit—despite its
repeated failure to ratify.
In the long run, one significant effect of non-participation in a law-making
treaty is inability to invoke its dispute settlement provisions: a dispute can
only arise under a treaty as between parties to the treaty. This may not
matter if there is a separate basis for jurisdiction, for example under the
Optional Clause or a free-standing dispute settlement treaty,81 and if the
customary law rule is arguably the same as that contained in the treaty.
In Nicaragua, the position was unusual: the US relied on an Optional
Clause reservation that excluded the Court from applying the
Organization of American States (OAS) Charter, under which the dispute
arose, in the absence of other affected states. The Court avoided the
effect of the jurisdictional reservation by holding that it was free to apply
customary international law (the content of which was, it held, the same
as the OAS Charter).82 But this was to confuse jurisdiction and applicable
law: states do not cease to have disputes under a treaty merely because
the Court has, in consequence, no jurisdiction over those disputes. The
views of the dissenting judges on this point are to be preferred.83
As a general rule, the requirements of duration, consistency, and
generality of practice, as well as opinioiuris, means that customary law is
often outpaced by specific treaties. But this is not always the case; in the
longer term, customary law may be called on to mould and even modify
treaty texts which cannot realistically be amended, however desirable
amendment might be. A case in point is the law of self-defence as
expressed in Article 51 of the UN Charter.84 This parallels the right of
self-defence that existed in customary international law prior to the
Charter, but makes no mention
References
(p. 34) of necessity and proportionality. Despite the absence of these
words in Article 51, the International Court has read them in.85 The
principle does not, however, cut both ways, and the requirement in Article
51 that any exercise of the right be reported to the Security Council has
not been imported into custom.86
5. General Principles of Law87
Article 38(1)(c) of the Statute of the International Court refers to ‘the
general principles of law recognized by civilized nations’.88 This source is
listed aft er treaty and custom, both of which depend more immediately
on state consent. Nonetheless, these general principles are not
considered ‘subsidiary means’, a term confined to Article 38(1)(d). The
formulation appeared in the compromis of arbitral tribunals in the
nineteenth century, and similar formulae appear in draft instruments on
the functioning of tribunals.89 In the Committee of Jurists that prepared
the Statute there was no consensus on the significance of the phrase.
Descamps (Belgium) had natural law concepts in mind; his draft referred
to ‘the rules of international law recognized by the legal conscience of
civilized peoples’. Root (US) considered that governments would mistrust
a court that relied on subjective concepts associated with principles of
justice. However, the Committee realized that the Court must have a
certain power to develop and refine such principles. In the end a joint
proposal by Root and Phillimore (UK) was accepted, and this became the
text we now have.90
Root and Phillimore regarded these principles as rules accepted in the
domestic law of all civilized states, and Guggenheim held the firm view
that paragraph (c) must be applied in this light.91 However, Oppenheim’s
view is preferable: ‘[t]he intention is to
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(p. 35) authorize the Court to apply the general principles of municipal
jurisprudence, in particular of private law, insofar as they are applicable to
relations of States’.92 The latter part of this statement is significant.
Tribunals have not adopted a mechanical system of borrowing from
domestic law. Rather they have employed or adapted modes of general
legal reasoning as well as comparative law analogies in order to make a
coherent body of rules for application by international judicial process. It
is difficult for state practice to generate the evolution of the rules of
procedure and evidence as well as the substantive law that a court must
employ. An international tribunal chooses, edits, and adapts elements
from other developed systems. The result is a body of international law
the content of which has been influenced by domestic law but which is
still its own creation.93
(A) General Principles of Law in the Practice of Tribunals
(i) Arbitral tribunals
Arbitral tribunals have frequently resorted to analogies from municipal
law. In the Fabiani94 case between France and Venezuela the arbitrator
had recourse to municipal public law on the question of state
responsibility for the state’s agents, including judicial officers, for acts
carried out in an official capacity. The arbitrator also relied on general
principles of law in assessing damages. The Permanent Court of
Arbitration applied the principle of moratory interest on debts in Russian
Indemnity.95 Since the Statute of the Permanent Court was concluded in
1920, tribunals not otherwise bound by it have generally treated Article
38(1)(c) as declaratory.96
In practice tribunals show considerable discretion in matters involving
general principles. Decisions on the acquisition of territory tend not to
reflect domestic derivatives of real property, and municipal analogies may
have done more harm than good here. The evolution of the rules on the
effect of duress on treaties has not depended on changes in domestic
law.97 In North Atlantic Fisheries the tribunal considered the concept of
servitude but refused to apply it.98 Moreover, in some cases, for example
those
References
(p. 36) involving the expropriation of private rights, reference to domestic
law might yield uncertain results, and the choice of model reveal
ideological predilections.
(ii) The International Court and general principles
The Court has used Article 38(1)(c) sparingly. ‘General principles’
normally enter judicial reasoning without formal reference or label.
However, the Court has on occasion referred to general notions of
responsibility. In Chorzów Factory the Court observed that ‘one Party
cannot avail himself of the fact that the other has not fulfilled some
obligation or has not had recourse to some means of redress, if the
former Party has, by some illegal act, prevented the latter from fulfilling
the obligation in question, or from having recourse to the tribunal which
would have been open, to him’.99 The Court went on to observe that ‘it is
a principle of international law, and even a general conception of law, that
any breach of an engagement involves an obligation to make
reparation’.100 The Court has relied on occasion on the principle of
estoppel or acquiescence.101 At other times references to abuse of rights
and to good faith may occur.102 But the most frequent and successful use
of domestic law analogies has been in the field of evidence, procedure,
and jurisdiction. Thus there have been references to the rule that no one
103
104
105
can be judge in his own suit,103 to litispendence,104 to res iudicata,105 to
various ‘principles governing the judicial process’,106 and to ‘the principle
universally accepted by international tribunals…to the effect that the
parties to a case must abstain from any measure capable of exercising a
prejudicial effect in regard to the execution of the decision to be
given’.107 In Corfu Channel the Court considered circumstantial evidence
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(p. 37) and remarked that ‘this indirect evidence is admitted in all systems
of law, and its use is recognized by international decisions’.108 In his
dissenting opinion in South West Africa (Second Phase), Judge Tanaka
referred to Article 38(1)(c) of the Court’s Statute as a basis for grounding
the legal force of human rights concepts and suggested that the provision
contains natural law elements.109 The Court’s reasoning in Barcelona
Traction relied on the general conception of the limited liability company
in municipal legal systems,110 a position repeated in Diallo.111
(B) General Principles of International Law
The rubric ‘general principles of international law’ may alternately refer to
rules of customary international law, to general principles of law as in
Article 38(1)(c), or to certain logical propositions underlying judicial
reasoning on the basis of existing international law. This shows that a
rigid categorization of sources is inappropriate. Examples of this type of
general principle of international law are the principles of consent,
reciprocity, equality of states, finality of awards and settlements, the legal
validity of agreements, good faith, domestic jurisdiction, and the freedom
of the seas. In many cases these principles may be traced to state
practice. However, they are primarily abstractions and have been
accepted for so long and so generally as no longer to
be directly connected to state practice. Certain fundamental principles of
international law enjoy heightened normativity as peremptory norms (see
chapter 27).
6. Judicial Decisions112
(A) Judicial Decisions and Precedent in International Law
Judicial decisions are not strictly a formal source of law, but in many
instances they are regarded as evidence of the law. A coherent body of
previous jurisprudence will have important consequences in any given
case. Their value, however, stops short of precedent as it is understood
in the common law tradition.
Article 38(1)(d) starts with a proviso: ‘[s]ubject to the provisions of Article
59, judicial decisions…as subsidiary means for the determination of rules
of law’. The significance of the word ‘subsidiary’ here is not to be
overstated.113 Article 59 provides that a decision of the Court has ‘no
binding force except as between the parties and
References
(p. 38) in respect of that particular case’. Lauterpacht argued that Article
59 does not refer to the major question of judicial precedent but to the
particular question of interven-tion.114 Article 63 provides that if a third
state avails itself of the right of intervention, the construction given in the
judgment shall be equally binding on the intervening third state.
Lauterpacht concludes that ‘Article 59 would thus seem to state directly
what Article 63 expresses indirectly’. However, the debate in the
Committee of Jurists indicates clearly that Article 59 was not intended
merely to express the principle of res iudicata, but rather to rule out a
system of binding precedent.115 In Polish Upper Silesia the Court said:
‘[t]he object of [Article 59] is simply to prevent legal principles accepted
by the Court in a particular case from being binding on other States or in
other disputes’.116 In practice, however, it has not treated earlier
decisions in such a narrow spirit.117
It is true that the Court does not observe a doctrine of precedent, except
perhaps on matters of procedure. But it strives to maintain judicial
consistency. In Exchange of Greek and Turkish Populations, the Court
referred to ‘the precedent afforded by’ the Wimbledon, reflecting the
principle that treaty obligations do not entail an abandonment of
sovereignty.118 In Reparation for Injuries,119 the Court relied on a
pronouncement in a previous advisory opinion120 for a statement of the
principle of effectiveness in interpreting treaties. Such references are
often a matter of ‘evidence’ of the law, but the Court aims for consistency
and thus employs the technique of distinguishing previous
decisions.121 In Peace Treaties, for example, the questions submitted to
the Court concerned the interpretation of dispute settlement clauses in
the peace treaties with
References
(p. 39) Bulgaria, Hungary, and Romania. In fact the request arose from
other parties’ allegations against these three states of breaches of treaty
provisions on the maintenance of human rights, allegations of substance.
The Court rejected arguments that it lacked the power to provide an
opinion. It said:
Article 65 of the Statute is permissive. It gives the Court the power to examine whether
the circumstances of the case are of such a character as should lead it to decline to
answer the Request. In the opinion of the Court, the circumstances of the present case
are profoundly different from those which were before the Permanent Court of
International Justice in the Eastern Carelia case.122
Attempts have sometimes been made to have the Court depart explicitly
from an earlier decision: the Court has either declined to do so123 or has
by-passed the point entirely.124 But there is no doubt as to the Court’s
power to depart from or qualify the effect of an earlier decision,
something which it is more inclined to do tacitly.125The position may be
different when there is a line of concordant decisions (a jurisprudence
constante), in which case reversal is not to be expected.
(B) Decisions of International Tribunals
The literature contains frequent reference to decisions of arbitral
tribunals. The quality of such decisions varies considerably. However,
certain arbitral awards have made notable contributions to the
development of the law.126
Much depends on the status of the tribunal and of its members, and on
the conditions under which it conducts its work. The judgment of the
International Military Tribunal for the Trial of German Major War
Criminals,127 the decisions of the Iran–United
References
(p. 40) States Claims Tribunal, and the decisions of the International
Criminal Tribunal for the Former Yugoslavia, among others, contain
significant findings on issues of law. The International Court has referred
to arbitral decisions on many occasions;128 it also refers compendiously
to the jurisprudence of international arbitration.129
(C) Decisions of the International Court and its
Predecessor
In theory the Court applies the law and does not make it, and Article 59 of
the Statute reflects a feeling on the part of the drafters that the Court was
intended to settle disputes as they came to it rather than to shape the
law. Yet a decision, especially if unanimous or almost unanimous, may
play a catalytic role in the development of the law. The early decisions
and advisory opinions in Reparation for Injuries, Reservations,
and Anglo-Norwegian Fisheries had a decisive influence. However, some
discretion is called for in handling decisions. The muchcriticized Lotus decision for instance, the outcome of the casting vote of
the President, was rejected by the ILC, a position endorsed in 1958 and
again in 1982.130 At its third session, the ILC refused to accept the
principles emerging from the Reservations advisory opinion (a stance
which was reversed at its fourteenth session).131 Moreover, it may
display a lack of caution to extract general propositions from opinions and
judgments devoted to a specific problem or to the settlement of a dispute
entangled with the special relations of two states.132
References
(p. 41) In practice open defiance of the Court’s authority is
rare.133 Although its judgments are only binding between the parties, and
not binding at all in the case of an advisory opinion, the Court’s
uninterrupted history, stated preference for consistency and wide
jurisdiction ratione materiae have resulted in its pronouncements on
issues of substance being given great weight.
Moreover, the Court has proved influential in defining the procedural law
of international courts and tribunals, such that some commentators have
now begun to refer to ‘a common law of international
adjudication’.134Whilst it is correct to state that in international law ‘every
tribunal is a self-contained system (unless otherwise provided)’,135 the
Court’s lengthy period of operation—throughout much of which it was the
only international tribunal of any significance—has enabled it to lay down
a body of procedural case-law which was and is a natural source of
inspiration for later tribunals.
(D) Decisions of National Courts136
Article 38(1)(d) of the Statute of the International Court is not limited to
international decisions. Decisions of national courts also have value.
Some decisions provide indirect evidence of the practice of the forum
state on the question involved. Others involve an independent
investigation of a point of law and a consideration of available sources,
and thus may offer a careful exposition of the law. Municipal judicial
decisions have been an important source of material on the recognition of
governments and states, state succession, sovereign immunity,
diplomatic immunity, extradition, war crimes, belligerent occupation, the
concept of a ‘state of war’, and the law of prize.137 However, the value of
these decisions varies considerably, and individual decisions may
present a narrow, parochial outlook or rest on an inadequate use of
sources. A further problem arises from the sheer number of domestic
decisions touching on international law. While the most significant of
these may be widely circulated,138 others go unnoticed.
References
(p. 42) 7. Other Material Sources
(A) The Conclusions of International Conferences
The ‘final act’ or other statement of conclusions of a conference of states
may be a form of multilateral treaty, but, even if it is an instrument
recording decisions not adopted unanimously, the result may constitute
cogent evidence of the state of the law on the subject. Even before the
necessary ratifications are received, a convention embodied in a Final
Act and expressed as a codification of existing principles may be
influential.139
(B) Resolutions of the General Assembly
General Assembly resolutions are not binding on member states except
on certain UN organizational matters. However, when they are concerned
with general norms of international law, acceptance by all or most
members constitutes evidence of the opinions of governments in what is
the widest forum for the expression of such opinions.140 Even when
resolutions are framed as general principles, they can provide a basis for
the progressive development of the law and, if substantially unanimous,
for the speedy consolidation of customary rules. Examples of important
‘law-making’ resolutions include the General Assembly’s Affirmation of
the Principles of International Law recognized by the Charter of the
Nürnberg Tribunal;141 the Declaration on the Granting of Independence
to Colonial Countries and Peoples;142 the Declaration of Legal Principles
Governing Activities of States in the Exploration and Use of Outer
Space;143 the Rio Declaration on Environment and Development,144 and
the UN Declaration on the Rights of Indigenous Peoples.145 In some
cases a resolution may have effect as an authoritative interpretation and
application of the principles of the Charter: this is true notably of the
Friendly Relations Declaration of 1970.146 But each resolution must be
assessed in the light of all the circumstances, including other available
evidence of the states’ opinions on the point or points in issue.
(C) The Writings of Publicists147
The Statute of the International Court includes, among the ‘subsidiary
means for the determination of rules of law’, ‘the teachings of the most
highly qualified publicists
References
(p. 43) of the various nations’ or, in the French text, ‘la doctrine’. The
phrase ‘most highly qualified’ is—fortunately or otherwise—not given a
restrictive effect, but authority naturally affects weight. In some areas
individual writers have had a formative influence. However, subjective
factors enter into any assessment of juristic opinion and individual writers
will tend to reflect national and other prejudices; further, some publicists
see themselves to be propagating new and better views rather than
providing a presentation of the existing law, a tendency the more
widespread given increasing specialization.
Whatever the grounds for caution, the opinions of publicists enjoy wide
use. Arbitral tribunals and national courts make sometimes copious
reference to jurists’ writings. National courts are generally unfamiliar with
state practice and are ready to rely on secondary sources as a substitute.
Ostensibly the International Court might seem to make little or no use of
jurists’ writings.148 However this is because of the process of collective
drafting of judgments, and the need to avoid an invidious selection of
citations. The fact that the Court makes use of writers’ work is evidenced
by dissenting and separate opinions,149 in which the ‘workings’ are set
out in more detail, and which reflect the Court’s actual methods. There
are many references to writers in pleadings before the Court.
(D) Codification and the Work of the International Law
Commission
A source analogous to the writings of publicists, and at least as
authoritative, is the work of the ILC, including its articles and
commentaries, reports, and secretariat memoranda. Also in the same
category are the bases of discussion of the 1930 Hague Codification
Conference, and (though to a lesser extent) the reports and resolutions of
the Institute of International Law and other expert bodies.150
References
(p. 44) Narrowly defined, codification involves the comprehensive setting
down of the lex lata and the approval of the resulting text by a lawdetermining agency. The process has been carried out historically at
international conferences, beginning with the First and Second Hague
Peace Conferences of 1899 and 1907, and by groups of experts whose
drafts were the subjects of conferences sponsored by the League of
Nations or by the American states. However, the ILC, created as a
subsidiary organ of the General Assembly in 1947 on the basis of Article
13(1)(a) of the Charter, has had more success in the process of
codification than the League bodies had.151 Its membership combines
technical qualities and civil service experience, so that its drafts may
reflect solutions acceptable to governments. Moreover, it reflects a
variety of political and regional standpoints. In practice the ILC has found
it impossible to maintain a strict separation of its tasks of codification and
of ‘progressive development’ of the law. Its work on various topics,
notably the law of the sea, has provided the basis for successful
conferences of plenipotentiaries and for the resulting multilateral
conventions. In 2001 it adopted its Articles on Responsibility of States for
Internationally Wrongful Acts following nearly four decades of work, but
expressed the view that there was no immediate need to convene a
conference for their adoption as a treaty.152 They have been relied upon
extensively by international courts and tribunals as an authoritative
statement of the law on state responsibility.153
8. Other Considerations Applicable in Judicial
Reasoning
(A) Equity in the Jurisprudence of the International Court
‘Equity’ refers to considerations of fairness and reasonableness often
necessary for the application of settled rules of law. Equity is not itself a
source of law, yet it may be an important factor in the process of
decision-making. Equity may play a significant role in supplementing the
law, or may unobtrusively enter judicial reasoning. In Diversion of Water
from the River Meuse Judge Hudson applied the principle that equality is
equity, and stated as a corollary that a state requesting the interpretation
of a treaty must itself have fulfilled its treaty obligations. He observed that
under ‘Article 38 of the Statute, if not independently of that Article, the
Court has some freedom to consider
References
(p. 45) principles of equity as part of the international law which it must
apply’.154 For its part the Court focused on the interpretation of the
relevant treaty.
In North Sea Continental Shelf155 the Court had to resort to the
formulation of equitable principles concerning the lateral delimitation of
adjacent areas of the continental shelf. This was a consequence of its
opinion that GCCS Article 6 did not represent customary law. In Fisheries
Jurisdiction (UK v Iceland) the International Court outlined an ‘equitable
solution’ to the differences over fishing rights and directed the parties to
negotiate accordingly.156 In Frontier Dispute (Burkina Faso/Mali) the
Chamber of the Court applied the principle of ‘equity infra legem’ to the
division of a frontier pool.157
Reference should also be made to Article 38(2),158 which provides: ‘[t]his
provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto’. The power of decision ex
aequo et bono involves elements of compromise and conciliation,
whereas equity in the general sense (‘equity infra legem’) finds
application as part of the normal judicial function. In Free Zones the
Permanent Court, under an agreement between France and Switzerland,
was asked to settle the questions involved in the execution of a provision
in the Treaty of Versailles.159 While the Court had to decide on the future
customs regime of the zones, the agreement contained no reference to
any decision ex aequo et bono. Switzerland argued that the Court should
work on the basis of existing rights, and, by a technical majority including
the vote of the President, the Court agreed. It said:
…even assuming that it were not incompatible with the Court’s Statute for the Parties to
give the Court power to prescribe a settlement disregarding rights recognized by it and
taking into account considerations of pure expediency only, such power, which would be
of an absolutely exceptional character, could only be derived from a clear and explicit
provision to the effect, which is not to be found in the Special Agreement…160
The majority doubted the Court’s power to give decisions exaequo
etbono, but it would be unwise to draw general conclusions since much
turned on the nature of the agreement. Additionally, the majority regarded
the power to decide cases ex aequo et bono as distinct from the notion of
equity. However, the terminology is not well settled. The
References
(p. 46) drafters of the General Act of Geneva of 1928161 apparently
regarded a settlement ex aequo et bono as synonymous with equity. The
converse, where ‘equity’ refers to settlement ex aequo et bono, has
arisen in some arbitration agreements. On occasion equity is treated as
the equivalent of general principles of law.162
(B) Considerations of Humanity
Considerations of humanity will depend on the judge’s subjective
appreciation, a factor which cannot be excluded. However, these
considerations may relate to human values already protected by positive
legal principles which, taken together, reveal certain criteria of public
policy and invite analogy. Such criteria are connected with general
principles of law and equity, and need no particular justification.
References to principles or laws of humanity appear in preambles to
conventions,163 in GA resolutions,164 and in diplomatic practice. The
classic reference is a passage from Corfu Channel,165 in which the Court
relied on certain ‘general and well-recognized principles’, including
‘elementary considerations of humanity, even more exacting in peace
than in war’. On occassions the provisions of the UN Charter concerning
the protection of human rights and fundamental freedoms have seen use
as a basis for the legal status of considerations of humanity.166
(C) ‘Legitimate Interests’
In particular contexts the applicability of rules of law may depend on
criteria of good faith, reasonableness, and the like. Legitimate interests,
including economic interests, may in these circumstances be taken into
account. Recognition of legitimate interests explains the extent of
acquiescence in the face of claims to the continental shelf and to fishing
zones. In this type of situation it is, of course, acquiescence and
recognition that provide the formal bases for the development of the new
rules. In Anglo-Norwegian Fisheries the Court did not purport to be doing
anything other than applying existing rules, but it had to justify this special
application of the normal rules to the Norwegian
References
(p. 47) coastline. In doing so it referred to ‘certain economic interests
peculiar to a region, the reality and importance of which are clearly
evidenced by a long usage’.167 It also referred to traditional fishing rights
buttressed by ‘the vital needs of the population’ in determining particular
baselines.168
Judge McNair, dissenting, expressed disquiet:
In my opinion the manipulation of the limits of territorial waters for the purpose of
protecting economic and other social interests has no justification in law; moreover, the
approbation of such a practice would have a dangerous tendency in that it would
encourage States to adopt a subjective appreciation of their rights instead of conforming
to a common international standard.169
This caution is justified, but the law is inevitably bound up with the
accommodation of different interests, and the application of rules usually
requires an element of appreciation.
Footnotes:
1
26 June 1945, 892 UNTS 119.
2
VCLT, 22 May 1969, 1155 UNTS 331, does not define ‘bilateral’ or
‘multilateral’. However, Art 60(1) assumes that a bilateral treaty is
between two parties. Likewise, Arts 40–1, 55, 58, 60, 69, and 70 assume
that a multilateral treaty is between three or more. Further: Crawford
(2006) 319 Hague Recueil 326.
3
Thirlway, in Evans (ed), International Law (3rd edn, 2010) 95, 97.
4
16 December 1920, 112 BFSP 317.
5
The clause in the first paragraph ‘whose function is to decide in
accordance with international law’ was added in 1946 in order to
emphasize that the application of the enumerated sources was the
application of international law: Thirlway, in Evans (3rd edn, 2010) 95,
98–9.
6
Generally: Hudson, The Permanent Court of International
Justice(1943) 601–12; Pellet, in Zimmermann, Tomuschat & OellersFrahm (eds), The Statute of the International Court of Justice (2006) 677.
Also: the Revised General Act for the Pacific Settlement of International
Disputes, 28 April 1949, 71 UNTS 101, Art 28; ILC Model Rules on
Arbitral Procedure, Art 10, ILC Ybk 1958/II, 78, 83; Scelle,
ILC Ybk 1958/II, 1, 8. Art 38 has often been incorporated textually or by
reference in the compromis of other tribunals.
7
Cf Quadri (1964) 113 Hague Recueil 245, 343–4; Akehurst (1974–75)
47 BY 273, 274–5. But see South West Africa (Ethiopia v South
Africa;Liberia v South Africa), Second Phase, ICJ Reports 1966 p 6, 300
(Judge Tanaka, diss). In general: Kennedy (1987) 2 AUJIL & Pol 1, 20–
45; Mendelson, in Lowe & Fitzmaurice (eds), Fifty Years of the
International Court of Justice (1996) 63; Villiger, Customary International
Law and Treaties (2nd edn, 1997); Charney, in Delbrück (ed), New
Trends in International Lawmaking (1997) 171; Meron (2003) 301
Hague Recueil 9, 373.
8
In accordance with the lex specialis principle: see Fragmentation of
International Law, Report of the Study Group of the ILC, A/CN/4/L.702,
18 July 2006, esp 8–11; Vranes (2006) 17 EJIL 295. For special custom
as a lex specialis: Right of Passage over Indian Territory (Portugal v
India), ICJ Reports 1960 p 6, 39–40.
9
Indeed this is the definition of a peremptory norm, at least according to
VCLT, Art 53. Further: chapter 27.
10
Cf VCLT, Arts 31–3. Further: chapter 16.
11
Air Transport Services Agreement (1963) 38 ILR 182, 248–55.
12
Thirlway, in Evans (3rd edn, 2010) 95, 99.
13
Ibid, 115.
14
Séfériadès (1936) 43 RGDIP 129; de Visscher (1955) 59 RGDIP 353;
Lauterpacht, Development (1958) 368–93; D’Amato, The Concept of
Custom in International Law (1972); Thirlway, International Customary
Law and Codification (1972); Akehurst (1974–75) 47 BY 1; Bernhardt
(1976) 36 ZaöRV 50; Haggenmacher (1986) 90 RGDIP 5;
Stern, Mélanges Reuter (1981) 479–99; Kirgis (1987)
81 AJIL 146; Thirlway (1990) 61 BY 1, 31–110; Wolfke, Custom in
Present International Law (2nd edn, 1993); Mendelson (1995) 66 BY 177;
ILA, Report of the Sixty-Ninth Conference (2000) 712; Thirlway (2005)
76 BY 1, 92–108; Perreau-Saussine & Murphy (eds), The Nature of
Customary Law (2007); Orakhelashvili (2008) 68 ZaöRV 69;
d’Aspremont, Formalism and the Sources of International Law (2011)
162–70; Kammerhofer, Uncertainty in International Law (2011) 59–85.
For approaches to custom that draw on economic theory: Goldsmith &
Posner (1999) 66 U Chic LR 1113; Norman & Trachtman (2005)
99 AJIL 541.
15
Fisheries (UK v Norway), ICJ Reports 1951 p 116, 191 (Judge Read).
16
Parking Privileges for Diplomats (1971) 70 ILR 396; Roberts
(ed), Satow’s Diplomatic Practice (6th edn, 2009) §9.15.
17
See the Alabama (1872), in Moore, 1 Int Arb 653; The Paquete
Habana, 175 US 677, 693–4, 175 (1900); Parking Privileges for
Diplomats (1971) 70 ILR 396, 402–4.
18
E.g. some diplomatic tax exemptions were originally granted as a
matter of comity but are now consolidated as legal requirements in Art 36
of the VCDR, 18 April 1961, 500 UNTS 95. See further Roberts (6th edn,
2009) §§8.4–8.5.
19
E.g. references to ‘every State’ or ‘all States’ in UNCLOS, Arts 3, 17,
79, 87, etc.
20
ICJ Reports 1951 p 116, 131.
21
On the rapid evolution of key rules concerning the continental shelf:
Crawford & Viles, in Crawford, Selected Essays (2002) 69.
22
North Sea Continental Shelf (Federal Republic of
Germany/Netherlands; Federal Republic of Germany/ Denmark), ICJ
Reports 1969 p 3, 43.
23
(1946) 40 AJIL Supp 45. For the Court’s reasons for rejecting the
‘equidistance/special circumstances’ rule, see ICJ Reports 1969 p 6, 43–
6. For maritime delimitation see further chapter 12.
24
SS Lotus (1927) PCIJ Ser A No 10, 16; cf Lauterpacht (1958) 384–6.
Also The Paquete Habana, 175 US 677 (1900).
25
29 April 1958, 450 UNTS 11, Art 11; UNCLOS, Art 97.
26
ICJ Reports 1974 p 3, 23–6. For reliance on the practice of a limited
number of states, see the SS Wimbledon(1923) PCIJ Ser A No 1, 15, 25–
8.
27
ICJ Reports 1974 p 3, 23–4.
28
UNCLOS, Part V, and further: chapter 11.
29
See Guggenheim, 1 Études Scelle (1950) 275. For Kelsen opinio
iuris is a fiction to disguise the creative powers of the judge: Kelsen
(1939) 1 RITD 253. Cf Kelsen, Principles of International Law (2nd edn,
1967) 450–1. But analytically the judge is in no different position than any
other evaluator of custom, except that the judge’s decision may bind the
parties (ICJ Statute, Art 59).
30
Further: Kirgis (1987) 81 AJIL 146, arguing that custom operates on a
‘sliding scale’, along which the level of opinio iuris required to
substantiate an assertion of custom is directly relative to the
manifestation of state practice. Also Roberts (2001) 95 AJIL 757.
31
Lit, ‘an opinion of law or necessity’. The first appearance of the term
seems to have been in von Liszt, Das Völkerrecht (1st edn, 1898) 6; von
Liszt, Das Völkerrecht (3rd edn, 1925) 16; also Rivier, Principes de droit
des gens (1896) 35, who refers to the idea but does not use the term. It is
implicit in the judgment in the Lotus (1927) PCIJ Ser A No 10, 28, but
was not actually used by the Court until North Sea Continental Shelf, ICJ
Reports 1969 p 3, 43–4; thence (spuriously) Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v US), ICJ Reports 1986 p
14, 96–8. Cf Mendelson (1995) 66 BY 177, 194.
32
Isidore of Seville, Etymologiae, Liber V: De Legibus et Temporibus,
reproduced in Barney, Lewis & Berghof, The Etymologies of Isidore of
Seville (2011) ch 3, §§3–4 (‘Custom is law established by moral habits,
which is accepted as law when written law is lacking: it does not make a
difference whether it exists in writing or reason, since reason too commits
to law…Custom is so called also because it is in common usage’).
33
North Sea Continental Shelf, ICJ Reports 1969 p 3, 44; Delimitation of
the Maritime Boundary in the Gulf of Maine Area (Canada/US), ICJ
Reports 1984 p 246, 293–4; Nicaragua, ICJ Reports 1986 p 14, 108–
9; Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996 p
226, 254–5; Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v Uganda), ICJ Reports 2005 p 168, 226–7,
242; Legal Consequences of the Construction of a Wallin the Occupied
Palestinian Territory, ICJ Reports 2006 p 136, 171–2; Pulp Mills on the
River Uruguay (Argentina v Uruguay), Judgment of 20 April 2010,
§§203–6. Also: Prosecutor v Furundžija (1998) 38 ILM
317; Responsibilities and Obligations of States Sponsoring Persons and
Entities with Respect to Activities in the Area, ITLOS Case No 17
(Advisory Opinion, 1 February 2011) 41, 44–6.
34
(1927) PCIJ Ser A No 10, 28; also ibid, 60 (Judge Nyholm, diss); 97
(Judge Altamira, diss).
35
For criticism: Lauterpacht (1958) 386. See, however, MacGibbon
(1957) 33 BY 115, 131.
36
29 April 1958, 499 UNTS 311.
37
ICJ Reports 1969 p 3, 28, 32–41.
38
Ibid, 41–2.
39
Ibid, 43.
40
Ibid, 43–5. For contemporary comment: Baxter (1970) 129
Hague Recueil 31, 67–9; D’Amato (1970) 64 AJIL 892; Marek (1970)
6 RBDI 44. Also Nuclear Tests (Australia v France), ICJ Reports 1974 p
253, 305–6 (Judge Petrén).
41
ICJ Reports 1986 p 14, citing ICJ Reports 1969 p 6, 44.
42
ICJ Reports 1986 p 14, 108–9. Also ibid, 97–8, 97–103, 106–8.
43
Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo),
Preliminary Objections, Judgment of 24 May 2007, §§30–1.
44
44
The principle was recognized by both parties, and by the Court,
in Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116, 131. Also: North
Sea Continental Shelf, ICJ Reports 1969 p 3, 26–7, 131 (Judge
Ammoun); 235, 238 (Judge Lachs, diss); 247 (Judge ad hoc Sørensen,
diss); Asylum (Colombia/Peru), ICJ Reports 1950 p 266, 277–8; and cf
the central finding of non-opposability of exclusive fisheries zone claims
in Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1974 p 3, 29–31.
45
Examples include the US and Japan’s refusal to accept territorial sea
claims of more than 3nm (1 O’Connell (1982) 156, 163–4), and the
PRC’s refusal to accept the restrictive doctrine of sovereign immunity
(Democratic Republic of Congo v FG Hemisphere Associates LLC, Hong
Kong Court of Final Appeal, Judgment of 8 June 2011).
46
See esp Charney (1985) 56 BY 1; Charney (1993) 87 AJIL 529.
Further: Fitzmaurice (1957) 92 Hague Recueil 5, 99–101; Waldock
(1962) 106 Hague Recueil 5, 49–53; Schachter (1982) 178
Hague Recueil 21, 36–8; Lau (2005) 6 Chicago JIL 495; Elias, ‘Persistent
Objector’ (2006) MPEPIL; Quince, The Persistent Objector and
Customary International Law (2010); Dumberry (2010) 59 ICLQ 779.
47
Seabed Advisory Opinion, ITLOS Case No 17, op §2 (B) referring to
the obligations of states in general with respect to activities in the deep
seabed. Also ibid, §180 on ‘the erga omnes character of the obligations
relating to preservation of the environment of the high seas and in the
Area.’
48
E.g. the disagreement between the US and many other states as to
the definition of torture: United States Reservation upon ratification of the
Convention against Torture, 21 October 1994, and objections by Finland,
27 February 1996; Netherlands, 26 February 1996; Sweden, 27 February
1996; Germany, 26 February 1996. Cf further criticism in Report of the
Committee against Torture, A/55/44 (2000) §§179–80; Murphy, 1 US
Digest (2002) 279–80, 289–98; Nowak & McArthur (eds), The United
Nations Convention against Torture (2008), §§A1:10, 20, 24–5, 50–4.
49
50
ICJ Reports 1951 p 116.
The dictum requiring explanation is: ‘In any event the ten-mile rule
would appear to be inapplicable as against Norway inasmuch as she has
always opposed any attempt to apply it to the Norwegian coast.’ ICJ
Reports 1951 p 116, 131. See Fitzmaurice (1957) 92 Hague Recueil 5,
99–101; Sørensen (1960) 101 Hague Recueil 5, 43–7.
51
E.g. Lauritzen v Chile (1956) 23 ILR 708, 710–12.
52
Since a delict cannot be justified on the basis of a desire to change
the law, the question of opinio iuris arises in a special form. In the early
stages of change this can amount to little more than a plea of good faith.
53
ICJ Reports 1960 p 6, 39–43; cf 62–3 (Judge Wellington Koo); 82–4
(Judge Armand-Ugon, diss); 110 (Judge Spender, diss). Also: Jurisdiction
of the European Commission of the Danube (1927) PCIJ Ser B No 14, 6,
114 (Deputy-Judge Negulesco, diss); Nottebohm(Liechtenstein v
Guatemala), Second Phase, ICJ Reports 1955 p 4, 30 (Judge Klaestead,
diss).
54
ICJ Reports 1960 p 6, 39. Further: Thirlway, in Evans (3rd edn, 2010)
95, 107.
55
Generally: D’Amato (1969) 63 AJIL 211; Antunes, Estoppel,
Acquiescence and Recognition in Territorial and Boundary Dispute
Settlement (2000); Marques Antunes, ‘Acquiescence’ (2006) MPEPIL.
56
Thirlway, in Evans (3rd edn, 2010) 95, 107.
57
Ibid, 106.
58
Asylum, ICJ Reports 1950 p 266, 276.
59
Ibid, 276–7.
60
Ibid, 277–8.
61
E.g. Rights of Nationals of the United States of America in Morocco
(France v US), ICJ Reports 1952 p 176, 199–200 (emphasis added),
citing Asylum, ICJ Reports 1950 p 266, 276–7. Also: Lauterpacht (1958)
388–92; Thirlway, in Evans (3rd edn, 2010) 95, 107.
62
Generally: McNair, The Law of Treaties (1961); Rosenne, The Law of
Treaties (1970); Baxter (1970) 129 Hague Recueil 27; Elias, The Modern
Law of Treaties (1974); Sinclair, Vienna Convention on the Law of
Treaties (2nd edn, 1984); Bastid, Les Traités dans la vie
internationale (1985); Rosenne, Breach of Treaty (1985); Gaja (1987)
58 BY 253; Rosenne, Developments in the Law of Treaties 1945–
1986 (1989); Combacau, Le Droit des traités (1991); Menon, The Law of
Treaties between States and International Organizations (1992);
Buergenthal (1992) 235 Hague Recueil 303; Reuter, Introduction to the
Law of Treaties (2nd edn, 1995): Klabbers, The Concept of Treaty in
International Law (1996); Gowlland-Debbas (ed), Multilateral TreatyMaking (2000); Fitzmaurice (2002) 73 BY 141; Wolfrum & Röben
(eds), Developments of International Law in Treaty Making (2005);
Fitzmaurice & Elias, Contemporary Issues in the Law of Treaties (2005);
Corten & Klein (eds), Les Conventions deVienne sur le Droit des
Traités (2006); Dinstein (2006) 332 Hague Recueil 243; Aust, Modern
Treaty Law and Practice (2nd edn, 2007); Ulfstein (ed), Making Treaties
Work (2007); Villiger, Commentary on the 1969 Vienna Convention on
the Law of Treaties (2009); Orakhelashvili & Williams (eds), 40 Years of
the Vienna Convention on the Law of Treaties (2010); Canizzaro
(ed), The Law of Treaties beyond the Vienna Convention (2010);
Fitzmaurice, ‘Treaties’ (2010) MPEPIL.
63
See the Wimbledon (1923) PCIJ Ser A No 1, 25; Panevezys–
Saldutiskis Railway (1939) PCIJ Ser A/B No 76, 51–2 (Judge
Erich); Nottebohm, ICJ Reports 1955 p 4, 22–3. See also Baxter (1970)
129 Hague Recueil 31, 75–91; Sørensen, Les Sources du droit
international (1946) 96–8.
64
Cf Re Tribble (1953) 20 ILR 366; N v Public Prosecutor of the Canton
of Aargau (1953) 20 ILR 363.
65
GA Res 2625(XXV), 24 October 1970, as to which see Arangio-Ruiz
(1972) 137 Hague Recueil 419.
66
10 December 1982, 1833 UNTS 3.
67
McNair (1961) 216–18 describes Art 2, §§3–4 of the Charter as the
‘nearest approach to legislation by the whole community of States that
has yet been realised’.
68
There must be evidence of consent to the extension of the rule,
particularly if the rule is found in a regional convention: European Human
Rights Convention (1955) 22 ILR 608, 610. Cf the treatment of a
European regional convention in Pulp Mills, Judgment of 20 April 2010,
§§203–19.
69
69
E.g. In re Goering (1946) 13 ILR 203.
70
See Nottebohm, Second Phase, ICJ Reports 1955 p 4, 23; Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), ICJ Reports 1971 p 16, 47. Cf North Sea Continental Shelf,
ICJ Reports 1969 p 3, 41–3; Baxter (1970) 129 Hague Recueil 31, 61.
71
ICJ Reports 1969 p 3.
72
Ibid, 32–41, 86–9 (Judge Padilla Nervo); 102–6, 123–4 (Judge
Ammoun).
73
ICJ Reports 1969 p 3, 182 (Judge Tanaka, diss); 198 (Judge Morelli,
diss); 223–5 (Judge Lachs, diss); 248 (Judge Sørensen, diss). Cf Baxter
(1970) 129 Hague Recueil 31, 47–51.
74
North Sea Continental Shelf, ICJ Reports 1969 p 3, 41–5.
75
Ibid, 56 (Judge Bengzon); 156–8, 163, 169 (Vice-President Koretsky,
diss); 172–80 (Judge Tanaka, diss); 197–200 (Judge Morelli, diss); 221–
32 (Judge Lachs, diss); 241–7 (Judge Sørensen, diss).
76
ICJ Reports 1982 p 246, 294–5.
77
ICJ Reports 1985 p 13, 29–34.
78
Baxter (1970) 129 Hague Recueil 27, 92. Further: Baxter (1965–66)
41 BY 275.
79
Baxter (1970) 129 Hague Recueil 27, 97.
80
Nicaragua, ICJ Reports 1986 p 14, 92–6, 152–4 (President Nagendra
Singh); 182–4 (Judge Ago); 204–8 (Judge Ni); 216–19 (Judge Oda, diss);
302–6 (Judge Schwebel, diss); 529–36 (Judge Jennings, diss).
81
E.g. American Treaty on Pacific Settlement, 30 April 1948, 30 UNTS
55; European Convention for the Pacific Settlement of Disputes, 29 April
1957, 320 UNTS 243.
82
Nicaragua, ICJ Reports 1986 p 14, 92–6, 152–4 (President Nagendra
Singh).
83
Ibid, 216–19 (Judge Oda, diss); 302–6 (Judge Schwebel, diss); 529–
36 (Judge Jennings, diss). Further: Crawford, ‘Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v United States of
America)’ (2006) MPEPIL. It is only fair to record that this was one of Ian
Brownlie’s outstanding wins before the Court (as counsel for Nicaragua).
84
Jia (2010) 9 Chin JIL 81, 98–100. On self-defence in international law:
chapter 33.
85
Nuclear Weapons, ICJ Reports 1995 p 226, 244–5.
86
Nicaragua, ICJ Reports 1986 p 14, 105.
87
Generally: Lauterpacht, Private Law Sources and Analogies of
International Law (1927). See further Fitzmaurice (1957) 92
Hague Recueil 1; Herczegh, General Principles of Law and the
International Legal Order (1969); Cheng, General Principles of Law as
Applied by International Courts and Tribunals (2nd edn, 1987);
Raimondo, General Principles of Law in the Decisions of International
Criminal Courts and Tribunals (2007); Gaja, ‘General Principles of Law’
(2007) MPEPIL.
88
The adjective ‘civilized’ was introduced by the Committee of Jurists in
1920. The Committee apparently considered all nations ‘civilized’, though
it is easy to see that how term could possess an unfortunate colonialist
connotation. ‘It can be firmly admitted that, for the time being, all States
must be considered as “civilized nations”’: Pellet, in Zimmermann et al
(2006) 789.
89
See Art 7 (on general principles of justice and equity) of Convention
XII Relative to the Establishment of an International Prize Court, 18
October 1907, 3 NRG (3d) 688 (signed but never entered into force).
Also: ECHR, 4 November 1950, 213 UNTS 222, Art 7(2), providing for
‘the trial and punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to the general
principles of law recognized by civilized nations’ (emphasis added).
90
Descamps, Procés-verbaux (1920) 316, 335, 344. Sørensen remarks
that the compromise formula has an inherent ambiguity which is inimical
to any rational interpretation of the provision: Sørensen (1946) 125.
91
Guggenheim (1958) 94 Hague Recueil 6, 78.
92
1 Oppenheim, §12.
93
93
See Tunkin (1958) 95 Hague Recueil 5, 23–6; de Visscher, Theory
and Reality in Public International Law (3rd edn, 1968) 400–2. Cf South
West Africa, ICJ Reports 1950 p 128, 158 (Judge McNair, diss).
94
(1902) 10 RIAA 83. The claim was based on denial of justice by the
Venezuelan courts.
95
(1912) 1 HCR 297. See also Sarropoulos v Bulgaria (1927) 4 ILR 263
(extinctive prescription).
96
See e.g. US v Germany (1923) 2 ILR 367; Roumania v
Germany (1927) 4 ILR 542; Lena Goldfields (1929) 5 ILR 3; Greek
Powder &CartridgeCovGerman Federal Republic (1958) 25 ILR 544,
545; Arbitrationbetween Newfoundland and Labrador and Nova
Scotia (2002) 128 ILR 425, 534–5; Feldman v Mexico (2002) 126 ILR 26,
42; Waste Management v Mexico (2002) 132 ILR 146, 171–2; Abyei
Arbitration (2009) 144 ILR 348, 504.
97
Nineteenth-century writers took the view that duress directed against
the state had no vitiating effect. Since 1920 the contrary view has been
accepted, under the influence not of domestic analogy but developments
in the law relating to the use of force: VCLT, Arts 51–2, and further:
chapters 16, 33.
98
(1910) 1 HCR 141.
99
Factory at Chorzów, Jurisdiction (1927) PCIJ Ser A No 9, 31.
100
101
Factory at Chorzów, Merits (1928) PCIJ Ser A No 17, 29.
Legal Status of Eastern Greenland (1933) PCIJ Ser A/B No 53, 52–4,
62, 69; Arbitral Award Made by the King of Spain on 23 December 1906
(Honduras v Nicaragua), ICJ Reports 1960 p 192, 209, 213; Temple of
Preah Vihear (Cambodia v Thailand), ICJ Reports 1962 p 6, 23, 31–2,
39–51 (Judge Alfaro). Also ibid, 26, where the Court said: ‘It is an
established rule of law that the plea of error cannot be allowed as an
element vitiating consent if the party advancing it contributed by its own
conduct to the error’. Further: Barcelona Traction, Light and Power
Company, Limited (Belgium v Spain), Preliminary Objections, ICJ
Reports 1964 p 6, 24–5; North Sea Continental Shelf, ICJ Reports 1969
p 3, 26; Gulf of Maine, ICJ Reports 1984 p 246, 308–9; Land and
Maritime Boundary between Cameroon and Nigeria, Preliminary
Objections, ICJ Reports 1998 p 275, 303–4; Legality of Use of Force
(Serbia and Montenegro v Canada), Preliminary Objections, ICJ Reports
2004 p 429, 444–7.
102
E.g. Free Zones of Upper Savoy and the District of Gex, Second
Phase (1930) PCIJ Ser A No 24, 12; (1932) PCIJ Ser A/B No 46, 167.
For references to individual judges’ use of analogies: Lauterpacht (1958)
167. Also Right of Passage, ICJ Reports 1960 p 6, 66–7 (Judge
Wellington Koo); 90 (Judge Moreno Quintana, diss); 107 (Judge
Spender, diss); 136 (Judge Fernandes, diss).
103
Interpretation of Article 3, Paragraph 2, of the Treaty of
Lausanne (1925) PCIJ Ser B No 12, 32.
104
Certain German Interests in Polish Upper Silesia, Preliminary
Objections (1925) PCIJ Ser A No 6, 20.
105
Effect of Awards of Compensation Made by the United Nations
Administrative Tribunal, ICJ Reports 1954 p 47, 53.
106
Application for Review of Judgment No. 158 of the United Nations
Administrative Tribunal, ICJ Reports 1973 p 166, 177, 181,
210; Application for Review of Judgment No. 273 of the United Nations
Administrative Tribunal, ICJ Reports 1982 p 325, 338–40, 345, 356.
107
Electricity Company of Sofia and Bulgaria(1939) PCIJ Ser A/B No 79,
199.
108
ICJ Reports 1949 p 4, 18. Also: Right of Passage, Preliminary
Objections, ICJ Reports 1957 p 125, 141–2; German
Interests, Preliminary Objections (1925) PCIJ Ser A No 6, 19.
109
ICJ Reports 1966 p 6, 294–9 (Judge Tanaka, diss).
110
Barcelona Traction, ICJ Reports 1970 p 3, 33–5.
111
Diallo, Judgment of 30 November 2010, §47.
112
Generally: Lauterpacht (1958) 8–22. Further: Pellet, in Zimmermann
et al (2006) 784–90.
113
Fitzmaurice, in Symbolae Verzijl (1958) 153, 174 (criticizing the
classification).
114
115
Lauterpacht (1958) 8.
115
See Descamps (1920) 332, 336, 584. Also: Sørensen (1946) 161;
Hudson (1943) 207; Waldock (1962) 106 Hague Recueil 5, 91. Waldock
observes: ‘It would indeed have been somewhat surprising if States had
been prepared in 1920 to give a wholly new and untried tribunal explicit
authority to lay down law binding upon all States’.
116
German Interests(1926) PCIJ Ser A No 7, 19.
117
Generally: Lauterpacht (1931) 12 BY 31, 60; Lauterpacht (1958) 9–
20. Further: Shahabuddeen, Precedent inthe World
Court (1996); Rosenne, 1–3 The Law and Practice of the International
Court 1920–2005 (4th edn, 2006); Brown, A Common Law of
International Adjudication (2007). See also Diallo, Judgment of 30
November 2010, §§67–8, where the Court referred expressly to the caselaw of other international courts and treaty bodies, namely the ECtHR
and the African Commission on Human and Peoples’ Rights.
118
Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No
10, 21.
119
Reparation for Injuries Suffered in the Service of the United Nations,
ICJ Reports 1949 p 174, 182–3.
120
Competence of the ILO to Regulate, Incidentally, the Personal Work
of the Employer (1926) PCIJ Ser B No 13, 7, 18.
121
Also: Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, First Phase, ICJ Reports 1950 p 65, 89 (Judge Winiarski, diss);
103 (Judge Zoričič, diss); 106 (Judge Krylov, diss); South West
Africa, Preliminary Objections, ICJ Reports 1962 p 319, 328,
345; Northern Cameroons, Preliminary Objections, ICJ Reports 1963 p
15, 27–8, 29–30, 37; Aerial Incident of 27 July 1955(Israel v Bulgaria),
ICJ Reports 1959 p 127, 192 (Judges Lauterpacht, Wellington Koo &
Spender, diss); South West Africa, Second Phase, ICJ Reports 1966 p 6,
240–1 (Judge Koretsky, diss); North Sea Continental Shelf, ICJ Reports
1969 p 3, 44, 47–9; 101–2, 121, 131, 138 (Judge Ammoun); 210 (Judge
Morelli, diss); 223, 225, 229, 231–3, 236, 238 (Judge Lachs, diss); 243–
4, 247 (Judge Sørensen, diss); Namibia, ICJ Reports 1971 p 16, 26–7,
53–4; Kasikili/Sedudu Island, ICJ Reports 1999 p 1045, 1073, 1076,
1097–100; Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v Nigeria), ICJ Reports 2002 p 303, 353–4, 359, 415–16,
420–1, 440–7, 453.
122
Peace Treaties, First Phase, ICJ Reports 1950 p 65, 72, referring
to Status of Eastern Carelia (1923) PCIJ Ser B No 5, 27. See
Lauterpacht (1958) 352–7, for criticism of the distinction between
procedure and substance. See further Fitzmaurice (1952) 29 BY 1, 50–2.
Cf South West Africa, Preliminary Objections, ICJ Reports 1962 p 319,
471–3 (Judges Spender & Fitzmaurice, diss); Cameroons, Preliminary
Objections, ICJ Reports 1963 p 15, 35, 37–8; 62–4 (Judge Wellington
Koo); 68–73 (Judge Spender); 108, 125–7 (Judge Fitzmaurice); 140–1
(Judge Morelli); 150–1 (Judge Badawi, diss); 156–9, 170, 182 (Judge
Bustamante, diss); 187–91, 194–6 (Judge Beb a Don, diss). Eastern
Carelia was also distinguished in Namibia, ICJ Reports 1971 p 16, 23,
and in Wall, ICJ Reports 2004 p 136, 161–2.
123
E.g. Cameroon v Nigeria, Preliminary Objections, ICJ Reports 1998 p
275, 291, following the decision in Right of Passage, Preliminary
Objections, ICJ Reports 1957 p 125, 146, on the immediate effect of an
Optional Clause declaration.
124
E.g. Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Croatia v Serbia), Preliminary Objections, ICJ
Reports 2008 p 412, 434–5, avoiding applying the decision in Legality of
Use of Force (Serbia and Montenegro v Belgium), Preliminary
Objections, ICJ Reports 2004 p 279, 318–24, on the interpretation of Art
35(2) of the Statute.
125
E.g. the development of obligations erga omnes in Barcelona
Traction, Jurisdiction, ICJ Reports 1970 p 3, 32 tacitly reversing South
West Africa, Second Phase, ICJ Reports 1966 p 6, in which standing was
denied to Liberia and Ethiopia.
126
E.g. The Alabama (1872), in Moore, 1 Int Arb 653; Behring Sea
Fisheries (1893), in Moore, 1 Int Arb 755.
127
128
In re Goering (1946) 13 ILR 203.
E.g. Polish Postal Service in Danzig (1925) PCIJ Ser B No 11, 30
(referring to Pious Funds of the Californias (1902) 9 RIAA
11); Lotus(1927) PCIJ Ser A No 10, 26 (referring to Costa Rica Packet, in
Moore, 5 Int Arb 4948); Legal Status of Eastern Greenland (1933) PCIJ
Ser A/B No 53, 45–6 (referring to Island of Palmas (1928) 2 RIAA
828); Nottebohm, Preliminary Objections, ICJ Reports 1953 p 113, 119
(‘since the Alabama case, it has been generally recognized, following the
earlier precedents, that in the absence of any agreement to the contrary,
an international tribunal has the right to decide as to its own jurisdiction
and has the power to interpret for this purpose the instruments which
govern that jurisdiction’); Gulf of Maine, ICJ Reports 1984 p 246, 302–3,
324 (referring to Anglo–French Continental Shelf (1979) 54 ILR 6); Land,
Island and Maritime Frontier Dispute (El Salvador v Honduras), ICJ
Reports 1992 p 351, 387 (referring to the Swiss Federal Council’s award
in Certain Boundary Questions between Colombia and Venezuela (1922)
1 RIAA 228); Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle
Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008 p 12,
32 (referring to the Meerauge Arbitration (Austria v Hungary) (1902)
8 RDI 2nd Ser, 207), 80 (referring to Territorial Sovereignty and Scope of
the Dispute (Eritrea v Yemen) (1998) 22 RIAA 209); Maritime Delimitation
in the BlackSea (Romania v Ukraine), ICJ Reports 2009 p 61, 109
(referring to Eritrea/ Yemen (Maritime Delimitation) (1999) 22 RIAA 367),
125 (referring to Barbados v Trinidad and Tobago (2006) 27 RIAA 214).
129
Factory at Chorzów, Jurisdiction, (1927) PCIJ Ser A No 9,
31; Factory at Chorzów (1928) PCIJ Ser A No 17, 31, 47; AngloNorwegian Fisheries, ICJ Reports 1951 p 116, 131. Also: Peter Pázmány
University(1933) PCIJ Ser A/B No 61, 243 (consistent practice of mixed
arbitral tribunals); Barcelona Traction, Second Phase, ICJ Reports 1970
p 30, 40. The Court has also referred generally to decisions of other
tribunals without specific reference to arbitral tribunals. E.g. Legal Status
of Eastern Greenland(1933) PCIJ Ser A/B No 53, 46; Reparation for
Injuries, ICJ Reports 1949 p 174, 186.
130
See GCHS, 29 April 1958, 450 UNTS 82, Art 11; ILC Ybk 1982/II,
41–2.
131
132
ILC Ybk 1951/I, 366–78; ILC Ybk 1962/I, 229–31, 288–90.
On Genocide: McNair (1961) 167–8. On Nottebohm:
Flegenheimer (1958) 25 ILR 91, 148–50.
133
133
Cf the decision of the ICTY in Prosecutor v Tadić (1999) 124 ILR 61,
98–121, which disagreed with the International Court’s requirement of
effective control when attributing the conduct of private actors to a state
under the rules of state responsibility, as laid down in Nicaragua, ICJ
Reports 1986 p 14, 61–5. The International Court reasserted the view
in Nicaragua in Genocide (Croatia v Serbia), ICJ Reports 2007 p 43,
209–11. Further: Cassese (2007) 18 EJIL 649.
134
Generally: Brown, A Common Law of International
Adjudication (2007).
135
Prosecutor v Tadić (1995) 105 ILR 419, 458 (Jurisdiction).
136
Generally: Lauterpacht (1929) 10 BY 65. Further: Falk, The Role of
Domestic Courts in the International Legal Order (1964);
Nollkaemper, National Courts and the International Rule of Law (2011).
137
See The Scotia, 81 US 170 (1871); The Paquete Habana, 175 US
677 (1900); The Zamora [1916] 2 AC 77; Gibbs v Rodríguez (1951) 18
ILR 661; Lauritzen v Government of Chile (1956) 23 ILR 708.
138
E.g. Minister of State for Immigration and Ethnic Affairs v
Teoh (1995) 104 ILR 460; Reference re Secession of Quebec (1998) 115
ILR 536; R v Bow Street Metropolitan Stipendiary Magistrate, ex parte
Pinochet Ugarte (No 3) [2000] 1 AC 147; Gaddafi(2000) 125 ILR
490; Sosa v Alvarez-Machain, 542 US 692 (2004); Hamdan v Rumsfeld,
548 US 557 (2006). See generally the cases in the ILR and the ILDC.
139
See Re Cámpora (1957) 24 ILR 518, Namibia, ICJ Reports 1971 p
16, 47.
140
Nicaragua, ICJ Reports 1986 p 14, 98–104, 107–8.
141
GA Res 95(I), 11 December 1946, adopted unanimously.
142
GA Res 1514(XV), 14 December 1960 (89–0:9).
143
GA Res 1962(XVIII), 13 December 1963, adopted unanimously.
144
GA Res 47/190, 22 December 1992, adopted without a vote.
145
GA Res 61/295, 13 September 2007 (144–4:11).
146
Declaration on Principles of International Law Concerning Friendly
Relations, GA Res 2625(XXV), 24 October 1970, adopted without vote.
147
147
Generally: Lauterpacht (1958) 23–5; Allott (1971) 45 BY 79; Cheng
(ed), International Law (1982); Westberg & Marchais (1992) 7 ICSID
Rev-FILJ 453; Jennings, in Makarczyk (ed), Theory of International Law
at the Threshold of the21st Century (1996) 413; Rosenne, The
Perplexities of Modern International Law (2004) 51–3; Wood, ‘Teachings
of the Most Highly Qualified Publicists’ (2010) MPEPIL.
148
But see the Wimbledon (1923) PCIJ Ser A No 1, 28 (‘general
opinion’); German Settlers in Poland (1923) PCIJ, Ser B No 6, 6, 36
(‘almost universal opinion’); Question of Jaworzina (1923) PCIJ Ser B No
8, 37 (‘doctrine constante’); German Interests, Preliminary Objections
(1925) PCIJ Ser A No 6, 20 (‘the “teachings of legal authorities”’, ‘the
jurisprudence of the principal countries’); Lotus (1927) PCIJ Ser A No 10,
26 (‘teachings of publicists’, ‘all or nearly all writers’); Nottebohm, Second
Phase, ICJ Reports 1955 p 4, 22 (‘the writings of publicists’).
Also: Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Serbia and
Montenegro), ICJ Reports 2007 p 43, 125, referring to Lemkin, Axis Rule
in Occupied Europe (1944) 79.
149
Diversion of Water from the Meuse (1937) PCIJ Ser A/B No 70, 76–7
(Judge Hudson); South West Africa, ICJ Reports 1950 p 128, 146–9
(Judge McNair); Peace Treaties, Second Phase, ICJ Reports 1950 p 221,
235 (Judge Read, diss); Asylum, ICJ Reports 1950 p 266, 335–7 (Judge
Azevedo, diss); Temple, ICJ Reports 1962 p 6, 39–41 (Vice-President
Alfaro); Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports
1997 p 7, 88–119 (Judge Weeramantry); Pulp Mills, Judgment of 20 April
2010, Joint dissenting opinion of Judges Al-Khasawneh & Simma, §§3,
12, 14.
150
E.g. the reference to ALRC 24, Foreign State Immunity (1984)
in KPMG Peat Marwick v Davison (1997) 104 ILR 526, 616 (NZCA)
and Zhang v Jiang (2008) 141 ILR 542 (NSWCA).
151
GA Res 174(II), 21 November 1947. On the ILC’s work: Briggs, The
International Law Commission (1965); United Nations, International Law
on the Eve of the Twenty-first Century (1997); Watts (ed), 1–4 The
International Law Commission 1949–1998 (1999–2010); Morton, The
International Law Commission of the United Nations (2000); Rao,
‘International Law Commission’ (2006) MPEPIL; United Nations, The
Work of the International Law Commission (7th edn, 2007).
152
ILC Ybk 2001/II, 31.
153
Also: Crawford, Pellet & Olleson (eds), The Law of International
Responsibility (2010). Further: chapters 25–7.
154
Diversion of Water from the Meuse (1937) PCIJ Ser A/B No 70, 73
(Judge Hudson). Also Wimbledon (1923) PCIJ Ser A No 1, 32 (on the
currency in which the damages are to be paid). Instances of equity in
arbitral jurisprudence include Orinoco Steamship Co (1910) 1 HCR
228; Norwegian Shipowners (1922) 1 ILR 189; Eastern Extension,
Australasia and China Telegraph Company, Limited (1923) 6 RIAA
112; Trail Smelter (1941) 9 ILR 315.
155
ICJ Reports 1969 p 3, 46–52, 131–5 (Judge Ammoun); 165–8 (VicePresident Koretsky, diss); 192–6 (Judge Tanaka, diss); 207–9 (Judge
Morelli, diss); 257 (Judge Sørensen, diss).
156
ICJ Reports 1974 p 3, 30–5.
157
ICJ Reports 1986 p 554, 631–3. Also: Review of UNAT Judgment No
273, ICJ Reports 1982 p 325, 536–7 (Judge Schwebel, diss).
158
Judge Kellogg thought otherwise but was in error. Free
Zones, Second Phase (1930) PCIJ Ser A No 24, 39–40 (Judge Kellogg).
See North Sea Continental Shelf, ICJ Reports 1969 p 3, 48.
159
Free Zones (1930) PCIJ Ser A No 24, 4. Cf the earlier phase (1929)
PCIJ Ser A No 22. Also: Lauterpacht, Function of Law (1933) 318;
Lauterpacht (1958) 213–17.
160
Free Zones (1930) PCIJ Ser A No 24, 10.
161
General Act for the Pacific Settlement of International Disputes, 26
September 1928, 93 LNTS 343, Art 28. The provision was copied in other
treaties.
162
163
E.g. Norwegian Shipowners (1922) 1 ILR 189, 370.
See especially preamble to the Hague Convention Concerning the
Laws and Customs of War on Land, 18 October 1907, 36 Stat 2227:
‘Until a more complete code of the laws of war has been issued, the High
Contracting Parties deem it expedient to declare that, in cases not
included in the Regulations adopted by them, the inhabitants and the
belligerents remain under the protection and the rule of the principles of
the law of nations, as they result from the usages established among
civilized peoples, from the laws of humanity, and the dictates of the public
conscience’. This is known as the Martens clause.
164
E.g. Declaration on the Prohibition of the Use of Nuclear and
Thermo-nuclear Weapons, GA Res 1653(XVI), 24 November 1961.
165
ICJ Reports 1949 p 4, 22. The statement referred to Albania’s duty to
warn of the presence of mines in its waters. See also Nicaragua, ICJ
Reports 1986 p 14, 112–14; Thirlway (1990) 61 BY 1, 6–13.
166
In South West Africa, Second Phase, ICJ Reports 1966 p 6, 34, the
Court held that humanitarian considerations were not decisive. But
see ibid, 252–3, 270, 294–9 (Judge Tanaka, diss).
167
ICJ Reports 1951 p 116, 133. Also ibid, 128: ‘In these barren regions
the inhabitants of the coastal zone derive their livelihood essentially from
fishing’. Further: Fitzmaurice (1953) 30 BY 1, 69–70; Fitzmaurice (1957)
92 Hague Recueil 5, 112–16; Thirlway (1990) 61 BY 1, 13–20.
168
ICJ Reports 1951 p 116, 142.
169
ICJ Reports 1951 p 116, 169 (Judge McNair, diss).
(p. 48) 3 The Relations of International and
National Law
1. Theoretical Approaches1
The relationship between international and national law2 is often
presented as a clash at a level of high theory, usually between ‘dualism’
and ‘monism’. Dualism emphasizes the distinct and independent
character of the international and national legal systems.3 International
law is perceived as a law between states whereas national law applies
within a state, regulating the relations of its citizens with each other and
with that state. Neither legal order has the power to create or alter rules
of the other. When international law applies in whole or in part within any
national legal system, this is because of a rule of that system giving effect
to international law. In case of a conflict between international law and
national law, the dualist would assume that a national court would apply
national law, or at least that it is for the national system to decide which
rule is to prevail.
Monism postulates that national and international law form one single
legal order, or at least a number of interlocking orders which should be
presumed to be coherent and consistent. On that basis international law
can be applied directly within the national legal order. This position is
represented by jurists whose views diverge in significant respects.
Hersch Lauterpacht was a forceful exponent of a version of monism; he
emphasized that individuals are the ultimate subjects of international law,
representing both the justification and moral limit of the legal order.4 The
state (p. 49) is disliked as an abstraction and distrusted as a vehicle for
maintaining human rights. International law is seen as the best available
moderator of human affairs, and also as a condition of the legal existence
of states and therefore of the national legal systems.5
Hans Kelsen developed monist principles on the basis of formal methods
of analysis dependent on a theory of knowledge.6 According to Kelsen,
monism is scientifically established if international and national law are
part of the same system of norms receiving their validity and content by
an intellectual operation involving the assumption of a single basic norm
(Grundnorm). Only that assumption makes sense of the shared
normativity of law. This basic norm he formulates, with nice circularity, as
follows: ‘The states ought to behave as they have customarily
behaved’.7 International law in turn contains a principle of effectiveness,
which allows revolution to be a law-creating fact and accepts as
legitimate the historically first legislators of a state. This, as if by
delegation, provides the basic norm of national legal orders; the whole
legal ordering of humanity is at once presupposed and integrated: ‘Since
the basic norms of the national legal orders are determined by a norm of
international law, they are basic norms only in a relative sense. It is the
basic norm of the international legal order which is the ultimate reason of
validity of the national legal orders, too’.8
Thus Kelsen developed a monist theory of the relation between
international and national law.9 Law is a hierarchical system whereby
each legal norm derives its validity from a higher norm. This chain of
validity can be traced to the Grundnorm, which is not a norm of positive
law but rather a ‘hypothesis of juristic thinking’.10International and
national law form a single system of norms because they receive their
validity from the same source:11 the Grundnorm evidently has a lot to
answer for. But Kelsen’s theory is complicated in that he considered it
equally possible that the relationship between legal orders could be
conceived on the basis of the primacy of national law (p. 50) rather than
of international law.12 The choice between these alternatives is to be
made on political rather than legal grounds.13
Faced with this apparent impasse, it seems natural to seek to escape
from the dichotomy of monism and dualism. Above all, neither theory
offers an adequate account of the practice of international and national
courts, whose role in articulating the positions of the various legal
systems is crucial. Fitzmaurice attempted to by-pass the debate by
arguing that there was no common field of operation: the two systems do
not come into conflict as systems since they work in different spheres,
each supreme in its own field.14 However, there could be a conflict
of obligations, an inability of the state on the domestic plane to act in the
manner required by international law in some respect: the consequence
of this will not be the invalidity of state law but the responsibility of the
state on the international plane.15 Rousseau propounded similar views,
characterizing international law as a law of co-ordination which does not
provide for automatic abrogation of national rules in conflict with
obligations on the international plane, instead international law deals with
incompatibility between national and international law through state
responsibility.16
In considering these and later contributions to the debate about the
relations between legal systems, it seems desirable to leave behind the
glacial uplands of juristic abstraction. In fact legal systems are
experienced by those who work within them as having relative autonomy
(how much autonomy depends on the power and disposition of each
system, and varies over time). The only theory which can adequately
account for that fact is some form of pluralism.17 Each legal system has,
almost by definition, its own approach to the others (though in practice
there is much borrowing). To talk of ‘national law’ is to generalize; but as
soon as one asks what approach a given system (international law,
English law, French law…) takes to another, the mist clears: it is possible
to state the position with clarity and to understand that each system
reserves to itself the authority to determine for the time being the extent
and terms of interpenetration of laws and related issues of the separation
of powers.
(p. 51) 2. Relations of International and National
Law: an Overview
(A) International Law’s Approach to National Law18
(i) In general
Here the position is not in doubt. A state cannot plead provisions of its
own law or deficiencies in that law in answer to a claim against it for a
breach of its obligations under international law.19 This principle is
reflected in Article 3 of the ILC’s Articles on Responsibility of States for
Internationally Wrongful Acts which provides that:
The characterization of an act of a State as internationally wrongful is governed by
international law. Such characterization is not affected by the characterization of the
same act as lawful by internal law.20
Arbitral tribunals,21 the Permanent Court,22 and the International
Court23 have consistently endorsed this position. It goes back to Alabama
Claims,24 where the US recovered damages from Great Britain for
breach of its obligations as a neutral during the Civil War. The absence of
legislation to prevent the fitting out of commerce raiders in British ports or
to stop them leaving port to join the Confederate forces provided no
defence to the claim. In Free Zones the Permanent Court observed ‘…it
is certain that France cannot rely on her own legislation to limit the scope
of her international obligations…’.25 The same principle applies where the
provisions of a state’s constitution are relied upon. In the words of the
Permanent Court:
a State cannot adduce as against another State its own Constitution with a view to
evading obligations incumbent upon it under international law or treaties in force.
Applying these
References
(p. 52) principles to the present case, it results that the question of the treatment of
Polish nationals or other persons of Polish origin or speech must be settled exclusively
on the basis of the rules of international law and the treaty provisions in force between
Poland and Danzig.26
An associated question is whether the mere enactment of legislation can
give rise to international responsibility, or whether an obligation is only
breached when the state implements that legislation. There is a general
duty to bring national law into conformity with obligations under
international law,27 but what this entails depends on the obligation in
question. Normally a failure to bring about such conformity is not in itself
a breach of international law; that arises only when the state concerned
fails to observe its obligations on a specific occasion.28 But in some
circumstances legislation (in its absence) could of itself constitute a
breach of an international obligation, for example where a state is
required to prohibit certain conduct or to enact a uniform law.
(ii) National laws as ‘facts’ before international tribunals
In Certain German Interests in Polish Upper Silesia, the Permanent Court
observed:
From the standpoint of International Law and of the Court which is its organ, national
laws are merely facts which express the will and constitute the activities of States, in the
same manner as do legal decisions or administrative measures. The Court is certainly
not called upon to interpret the Polish law as such; but there is nothing to prevent the
Court’s giving judgment on the question whether or not, in applying that law, Poland is
acting in conformity with its obligations towards Germany under the Geneva
Convention.29
Thus a decision of a national court or a legislative measure may
constitute evidence of a breach of a treaty or of customary international
law.30 However, the general proposition that international tribunals take
account of national laws only as facts ‘is, at most…debatable’.31
The concept of national law as ‘merely facts’ has at least six distinct
aspects.
(a) National law may itself constitute, or be evidence of, conduct
in violation of a rule of treaty or customary law.
(b) National law may be part of the ‘applicable law’ either
governing the basis of a claim or more commonly governing a
particular issue.
(c) Whereas the principle iura novit curiaapplies to international
law, it does not apply to matters of national law. International
tribunals will generally require proof of
References
(p. 53) national law, although they may also (subject to due
process constraints) undertake their own researches.32
(d) When called upon to apply national law an international
tribunal should seek to apply that law as it would be applied in the
state concerned.33It is for each state, in the first instance, to
interpret its own laws.34International tribunals are not courts of
appeal and they do not have the authority to substitute their own
interpretation of national law for those of the national authorities,
especially when that interpretation is given by the highest national
courts. In many situations an international tribunal must simply
take note of the outcome of a domestic decision and then deal
with its international implications.35It will only be in exceptional
circumstances that an international tribunal will depart from the
construction adopted by a national authority of its own law, such
as where a manifestly incorrect interpretation is put forward in the
context of a pending case.36
(e) International tribunals cannot declare the unconstitutionality or
invalidity of rules of national law as such.37Only if it is
transparently clear that a national law would be treated as
unconstitutional or invalid by the national courts should an
international tribunal follow suit.
(f) The proposition that an international tribunal ‘does not interpret
national law as such’38is open to question. When it is called on to
apply rules of national law, an international tribunal will interpret
and apply domestic rules as such.39This may occur in a variety of
circumstances. First there is the case of renvoi: in Lighthouses, for
example, the special agreement required the court to decide if the
contracts had been ‘duly entered into’ under Ottoman law.40Or
international law may designate a system of domestic
References
(p. 54) law as the applicable law in respect of some claim or
transaction.41Where relevant issues (whether classified as ‘facts’
or otherwise) require investigation of national law, the Court has
made the necessary findings.
(iii) Treatment of national law by international tribunals
Cases where a tribunal dealing with issues of international law has to
examine the national law of one or more states are by no means
exceptional.42 The spheres of competence claimed by states,
represented by territory, jurisdiction, and nationality of individuals and
legal persons, are delimited by legislation and judicial and administrative
decisions. International law sets the limits of such competence, but in
order to decide whether particular acts are in breach of obligations under
treaties or customary law, the Court has had to examine national law
relating to a wide range of topics including expropriation,43 fishing
limits,44 nationality,45guardianship and welfare of infants,46 the rights of
shareholders in respect of damage suffered by corporations,47 and the
arbitrary arrest and expulsion of aliens.48 National law is very frequently
implicated in cases concerning individuals, including those relating to the
protection of human rights and the exhaustion of local remedies.
A considerable number of treaties contain provisions referring directly to
national law49 or employing concepts which by implication are to be
understood in the context of a particular national law.50 Many treaties
refer to ‘nationals’ of the contracting parties,51 and the presumption is that
the term connotes persons having that status under the internal law of
one of the parties. Similarly, treaties often involve references to legal
interests of individuals and corporations existing within the cadre of a
given national law. Treaties having as their object the creation and
maintenance of certain standards of treatment of minority groups or
aliens may refer to a national law as a method of describing the status to
be created and protected.52 The protection of rights may be stipulated as
being ‘without discrimination’ or as ‘national treatment’ for the
References
(p. 55) categories concerned.53 Controversy has been generated in
relation to the meaning and scope of the so-called ‘umbrella
clause’54 including the circumstances in which breach of a contract
between an investor and a host state will also amount to a breach of such
a clause contained in an investment treaty.55 The better view is that, if the
obligation in question is one which arises under national law, for example
under a contract, it is only if in truth the obligation is breached that the
umbrella clause has anything to operate upon: that clause does not
‘internationalize’ the contract.56
On occasion an international tribunal may be faced with the task of
deciding issues solely on the basis of national law. Serbian
Loans57 concerned a dispute between the French bondholders of certain
Serbian loans and the Serb-Croat-Slovene government, the former
demanding loan service on a gold basis, the latter holding that payment
in French paper currency was permissible. The French government took
up the case of the French bondholders and the dispute was submitted to
the Permanent Court. The Court emphasized its duty to exercise
jurisdiction duly conferred by agreement, in the absence of provision to
the contrary in the Statute.58On the merits the Court held that the
substance of the debt and the validity of the clause defining the obligation
of the debtor state were governed by Serbian law, but, with respect to the
method of payment, the law applicable was that of the place of payment,
in this case French law.
(B) International Law before National Courts: General
Considerations
(i) Establishing international law before national courts
An initial issue is whether the jurisdiction considers international law to be
‘part of ’ (in the sense of generally available to) national law, a question
that is oft en constitutional in character, and which may be answered
differently for customary law and
References
(p. 56) treaties.59 Thus, the 1949 German Grundgesetz provides in
Article 25 that ‘[t]he general rules of public international law shall be an
integral part of federal law’. Where such a position is adopted, a national
court will go about establishing the content of international law as a
matter of legal argument.60 Once a court has ascertained that there are
no bars within its own legal system to applying the rules of international
law or provisions of a treaty, the rules are accepted as rules of law and
are not required to be established by evidence, as in the case of matters
of fact and foreign law.61 But in the case of international law, this process
of judicial notice has a special character. In the first place, there is a
serious problem involved in finding reliable information of international
law, especially customary law, in the absence of formal proof and resort
to expert witnesses. Secondly, issues of public policy and difficulties of
obtaining evidence on larger issues of state relations combine to produce
a procedure whereby the executive may be consulted on certain
questions of mixed law and fact, for example, the existence of a state of
war or the status of an entity claiming sovereign immunity.
Thus in France, for example, the Minister of Foreign Affairs may give an
interpretation of a treaty to a court, which may then be relied upon in later
cases involving the same provision.62 Detailed research is normally out of
the question, and counsel cannot always fill the gap. In these
circumstances it is hardly surprising that courts have historically leaned
heavily on the opinions of writers, though modern practice—at least in
England—has tended to steer away from academic commentaries as a
source of law.63 It can happen that a national court itself makes a full
investigation of all the legal sources,64 including treaties and state
practice—yet here also works of authority may be relied upon as
repositories and assessors of state practice. Reference may also be
made to decisions of international tribunals65 and the work of the ILC.66
References
(p. 57) (ii) International law as the applicable law in national courts
Once a national court has determined that international law is in some
way applicable to a matter before it, it falls to the court to determine how
that law is to sit alongside any national law that may also be applicable.
Indeed, the increasing penetration of international law into the domestic
sphere has to an extent muddied the distinction between the two.67 Thus,
international law is increasingly finding its way into national courts, and
judges are increasingly finding themselves called upon to interpret and
apply it—or at least to be aware of its implications.
Again, the approach of a national court to international law will be largely
determined by the rules of the jurisdiction in question. But certain issues
common to many or all jurisdictions may be identified.
(a) Courts may be called upon to adjudicate in conflicts between a
municipal law on the one hand, and a rule of customary
international law on the other. Many municipal systems now
appear to have in one way or another accepted customary
international law as ‘the law of the land’, even where no
68
constitutional provision is made,68but questions remain as to how
it fits within the internal hierarchy of a national system. As a
general (but by no means absolute) rule, an extant statute will
prevail over a rule of customary international law if no
reconciliation is possible by way of interpretation.69
(b) The question also arises with respect to treaties, but will take
on a more overtly constitutional flavour. ‘Monist’ systems may
expressly provide that duly signed and ratified treaties take
precedence over national legislation.70In other (‘dualist’) systems
where the conclusion of a treaty is an executive act, it will be for
the legislature to implement the treaty as part of domestic law—
insofar as this may be required. In such a system the treaty is
applied by the courts as mediated by the legislation, and
legislation will prevail, again unless the issue can be resolved by
interpretation.71
(c) When applying international law rules, municipal courts may
find it necessary to develop the law, notably where it is unclear or
uncertain.72This will include consideration of how the international
rule is applicable in a domestic context, a process
References
(p. 58) which has been notable, for example, in the field of state
immunity.73The question is particularly vexed in the US due to the
so far unique provisions of the Alien Tort Statute74and subsequent
efforts to define its scope.75
(d) Even in monist systems, the court may need to determine the
extent to which a rule of international law may be directly applied.
For example, a treaty (even if duly ratified and approved in
accordance with constitutional processes) may be held ‘non-selfexecuting’, that is to say, inapplicable without further specification
or definition by the legislature.76
(e) A further question is the extent to which the executive may
intervene in the court’s application of international law. One
consideration may be the need for the judiciary and the executive
to speak with one voice with respect to the foreign policy of the
country in question. Thus, when considering issues such as the
recognition of states and governments, state immunity and
diplomatic immunity the courts may accept direction from the
executive.77Caution must be exercised, however, particularly in
the European context, with the European Court of Human Rights
holding in Beaumartin v France that the practice in extreme forms
is incompatible with the right of access to ‘an independent and
impartial tribunal’.78There, the practice scrutinized was the French
procedure of referring preliminary questions on matters of treaty
interpretation to the Minister for Foreign Affairs, and treating any
opinion given as binding.79The revised French practice does not
attribute binding effect to such opinions and indeed does not
require them to be given at all.80
(f) A court may be called upon under the rules of private
international law to apply foreign law. If it is alleged that the
applicable law is in conflict with international law, the court may be
required to determine whether the act or law of a foreign state is
contrary to its international obligations. In many jurisdictions—
notably in the US—such issues have given rise to the ‘act of state’
doctrine, whereby a court will, as an organ of a sovereign, refuse
to pass judgment on the acts of another, formally equal, sovereign.
The scope of the doctrine varies from one jurisdiction to another.
References
(p. 59) (g) Finally, the court, confronted with an intricate issue of
international law, may simply concede that it is beyond its capacity
to decide, that is, is non-justiciable. As will be seen, the doctrine
exists in England and in other common law jurisdictions.81
A further suite of issues emerges with respect to federal states:82 the
capacity of entities other than the federal government to deal with
questions of foreign affairs; the place of international law in the
components of the federal system,83 and the capacity of courts other
than those at a federal level to apply international law.
84
(C) Res iudicata and the Two Systems84
(i) National res iudicata before international courts
From a formal point of view, res iudicata is a general principle within the
meaning of Article 38(1)(c) of the Statute, applied in tandem by
international and national courts.85 But there is no effect of res
iudicata from the decision of a national court so far as an international
jurisdiction is concerned. Even if the subject-matter may be substantially
the same, the parties may well not be, at least in the context of diplomatic
protection and possibly outside that context also.86 Other considerations
also play a role, not least the principle that international law is (in its own
terms) supreme. But an international tribunal may be bound by its
constituent instrument to accept certain categories of national decisions
as conclusive of particular issues.87
Some international tribunals afford natural and juridical persons standing
against states, including decisions of state courts. For example the
European Court of Human
References
(p. 60) Rights functions as a court of final resort on human rights issues;
it is only accessible once local remedies have been exhausted and does
not re-examine any questions of fact already dealt with by a municipal
court.88 In the case of investor-state arbitration tribunals, the default
position is that the decisions of national court create no res
iudicata insofar as the work of the tribunal is concerned,89 but the parties
to the bilateral or multilateral treaty granting the tribunal jurisdiction may
incorporate procedural roadblocks into the bargain, such as the so-called
‘fork in the road’ clause.90 Such a clause requires the claimant to elect
investor-state arbitration or litigation before the courts of the host state of
the investment as its preferred method of dispute resolution. Once an
election is made, other ways of bringing the original claim are closed to
the claimant.
(ii) International res iudicata before national courts
In principle decisions by organs of international organizations are not
binding on national courts without the co-operation of the national legal
system,91 which may adopt a broad constitutional provision for
‘automatic’ incorporation of treaty norms or require specific acts of
incorporation or implementation. On the other side of the equation,
however, municipal courts may seek to circumvent the finality of such
decisions without engaging the question of res iudicata through
interpretive legerdemain. In recent times this has been a feature of US
practice, which links the effect of a judgment to the status of the relevant
international court or tribunal’s constitutive instrument within municipal
law.92
Leaving aside such arguments, a decision of the International Court,
even one concerning substantially the same issues as those before a
national court, does not of itself create a res iudicata for the
latter.93 However, it does not follow that a national court should not
recognize the validity of the judgment of an international tribunal of
manifest competence and authority, at least for certain purposes.94 For
this reason, states oft en accord res iudicata effect to international and
domestic arbitral awards.95 On the one hand, this is desirable as a matter
of common sense, and the arguments
References
(p. 61) from a policy perspective are well known; parties to litigation are
at a certain point in time entitled to draw a line under a dispute and be
free of continued legal harassment. On the other, it may be the subject of
a treaty obligation, for example under the New York Convention96 or the
ICSID Convention.97 Outside those areas with specific treaty obligations,
state practice is extremely variable, with a number of countries not
affording res iudicata effect to foreign judgments,98 or even those
judgments arising from a different federal unit of the same country.99
(iii) Res iudicata and third parties
In international law res iudicata includes issue estoppel, but does not
extend to the US doctrine of collateral estoppel (binding upon third
parties).100 But the decisions of an international court or tribunal may
carry evidentiary weight even vis-à-vis third parties. For example national
courts, in dealing with cases of war crimes and issues arising from
belligerent occupation, the validity of acts of administration, of requisition
and of transactions conducted in occupation currency have relied upon
the findings of the International Military Tribunals at Nuremberg and
Tokyo as evidence, even conclusive evidence, of the illegality of the war
which resulted in the occupations.101
Quite aside from this, the legal reasoning employed by international
tribunals may carry weight. In Mara’abe v Prime Minister of Israel, the
Supreme Court of Israel found that the International Court’s Wall advisory
opinion102 did not constitute res iudicata but that the Court’s interpretation
of international law (as opposed to factual determinations) should be
given ‘full appropriate weight’.103
References
(p. 62) 3. International Law in the Common Law
Tradition104
(A) Development of the common law approach
The common law was initially seen, and saw itself, as the law of the land
—of the kingdom of England. It was applied by the common law courts at
Westminster and set over against the civil law which governed maritime
matters, foreign trade and also, given its links to the ius gentium, the
relations of princes and republics. The latter law was practised by the
civilians before the civil law courts such as the Court of Admiralty, and
before the Council. The Council’s advice on the law of nations came from
civilian-trained lawyers, not from the common lawyers.105
The situation changed to some extent in the eighteenth century, following
the abolition of the conciliar courts at the Restoration and the opening up
to the common law courts of the field of international commercial
litigation. Part of that opening was a greater willingness to be influenced
by foreign and civil law, a trend personified by Lord Mansfield, who first
recorded the principle of ‘incorporation’, that is, that international law was
‘part of the law of England’, a tradition he attributed to Lord Talbot and
handed on to Blackstone.106 What the Court of Admiralty in its prize
jurisdiction saw as a simple matter of applicable law became for the
common law courts a deliberate choice.107 But this open-minded
approach was qualified in various ways: the supremacy of parliament
meant that treaties (the conclusion of which were a royal prerogative)
were not part of English law, and the old role of the Council in matters of
external relations left a prototype of the act of state doctrine108together
with a deference to executive authority in matters of the foreign
prerogative (notably recognition). The overall result was eclectic,
reflecting a practical rather than theoretical policy in the courts. In the
post-Judicature Act period (post-1875) there has been much by way of
practical development, but the essential pattern has not changed and the
various components of the tradition remain poorly integrated.
It is necessary to take the components in turn, beginning with the most
straightforward.
References
(p. 63) (B) Treaties in English law109
(i) Unincorporated treaties
In England the conclusion and ratification of treaties are within the
prerogative of the Crown, and if a transformation doctrine were not
applied, the Crown could legislate for the subject without parliamentary
consent,110 in violation of the basal notion of parliamentary
sovereignty.111 The rule does not apply in the very rare cases where the
Crown’s prerogative can directly extend or contract jurisdiction without
the need for legislation.112
Thus, as a strongly dualist system, English law will not ordinarily permit
unimplemented treaties to be given legal effect by the courts.113 A
concise statement of this rule was provided by the Privy Council
in Thomas v Baptiste:
Their Lordships recognise the constitutional importance of the principle that international
conventions do not alter domestic law except to the extent that they are incorporated into
domestic law by legislation. The making of a treaty…is an act of the executive
government, not of the legislature. It follows that the terms of a treaty cannot effect any
alteration to domestic law or deprive the subject of existing legal rights unless and until
enacted into domestic law by or under authority of the legislature. When so enacted, the
courts give effect to the domestic legislation, not to the terms of the treaty.114
Thus unimplemented treaties cannot create directly enforceable rights
nor deprive individuals of legal rights previously bestowed; this is known
as the principle of no direct effect. They similarly cannot prevail over
statutes, are not ordinarily contracts capable of enforcement in domestic
courts, and their infringement by the UK is domestically without legal
effect.115 Neither do decisions by international courts and
References
(p. 64) tribunals which determine the UK to be in breach of
unimplemented treaty obligations have any domestic effect. In R v
Lyons,116 Lord Hoffmann noted that despite the fact that the judiciary is
one of the three organs of state, it was not the responsibility of the courts
to uphold the UK’s international obligations in such cases:
The argument that the courts are an organ of state and therefore obliged to give effect to
the state’s international obligations is in my opinion a fallacy. If the proposition were true,
it would completely undermine the principle that the courts apply domestic law and not
international treaties.…International law does not normally take account of the internal
distribution of powers within a state. It is the duty of the state to comply with international
law, whatever may be the organs which have the power to do so. And likewise, a treaty
may be infringed by the actions of the Crown, Parliament or the courts. From the point of
view of international law, it ordinarily does not matter. In domestic law, however, the
position is very different. The domestic constitution is based upon the separation of
powers. In domestic law, the courts are obliged to give effect to the law as enacted by
Parliament. This obligation is entirely unaffected by international law.117
(ii) Incorporated treaties
Once a treaty is implemented by Parliament,118 the resulting legislation
forms part of UK law and is applicable by the courts as so
implemented.119 Accordingly, there is no distinction in the law of the UK
between self-executing and non-self-executing treaties; all treaties may
be classified as non-self-executing as all require legislative action to
become law. An apparent exception to this rule arises in the case of
treaties concluded by the institutions of the European Union, with the
European Court of Justice holding these to be directly enforceable within
member states as part of the acquis communautaire. But in UK law EU
treaties have this effect because of the relevant statute.120
Once enacted, the statute implementing the treaty will function as any
other Act of Parliament. Thus, for example, the words of a subsequent
Act of Parliament will prevail over the provisions of a prior treaty in case
of clear inconsistency between the two.121
References
(p. 65) Legislation to give effect in domestic law to treaty provisions may
take various forms. A statute may directly enact the provisions of the
international instrument, which will be set out as a schedule to the
Act.122 It may employ its own substantive provisions to give effect to a
treaty, the text of which is not itself enacted. It may be that the enacting
legislation makes no specific reference to the treaty in question, though
there is extrinsic evidence to show that the statute was intended to give
effect to it.123 The result is a balancing act that requires the court to
scrutinize the strength of the relationship between the enacting statute
and its parent treaty, and determines the124 strength of the latter as an
interpretative tool.
(iii) Treaties and the interpretation of statutes125
Questions surrounding the interpretation of treaties and statutes in
English law can generally be divided into two categories: the
interpretation of enabling instruments, and the interpretation of other
legislation in light of treaties entered into, both incorporated and
unincorporated. As to the former, it is to be remembered that primary
object of interpretation is the implementing statute, and only at one
remove the treaty which implements or incorporates it.126 Accordingly,
although international courts and tribunals may rule on the interpretation
of a treaty, their rulings are not binding.127
On the other hand the interpretation of treaty provisions is a matter of
law. Unlike in some countries, the courts do not seek binding
interpretations of treaties from the executive.128 They will apply
international rules of treaty interpretation, as reflected in the Vienna
Convention on the Law of Treaties,129 rather than the domestic canons of
statutory interpretation (though these are less different than they
were).130 Furthermore,
References
(p. 66) in the interests of coherent interpretation between states parties to
the relevant agreement, the decisions of other domestic tribunals on the
interpretation of treaties are taken into account.131
Difficulties may arise where the implementing statute is ambiguous on its
face as to the extent to which it implements a treaty, or fails to mention
the treaty entirely. But where it is clear that Parliament intended to
implement a treaty through the legislation, the terms of the legislation are
to be construed if possible so as to conform to the treaty.132
More generally, as noted by Diplock LJ in Salomon: ‘Parliament does not
intend to act in breach of international law, including therein specific
treaty obligations’.133 This presumption applies to unincorporated treaties
as much as incorporated ones,134 but it only applies to legislation
enacted after a treaty has been signed or ratified.135 On the other hand, it
will apply even where there is no link between the treaty and the
legislation in question.136 In addition to legislation, the presumption may
also apply to other instruments or guidelines given domestic effect.137
The presumption itself will only act as an aid to interpretation where the
statutory provision is open to interpretation in that it is not clear on its
face.138 In Ex parte Brind, Lord Bridge, having regard to the thenunimplemented European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR), said:
But it is already well settled that, in construing any provision in domestic legislation which
is ambiguous in the sense that it is capable of a meaning which either conforms to or
conflicts with the Convention, the courts will presume that Parliament intended to
legislate in conformity with the Convention, not in conflict with it. Hence, it is submitted,
when a statute confers upon an administrative authority a discretion capable of being
exercised in a way which infringes any basic human right protected by the Convention, it
may similarly be presumed that the legislative intention was that the discretion should be
exercised within the limitations which the Convention imposes.139
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(p. 67) (iv) Treaties and the determination of the common law
The presumption in favour of interpreting English law in a way which
does not place the UK in breach of an international obligation applies not
only to statutes but also to the common law.140 Use may be made of
unincorporated treaties particularly where the common law is uncertain or
developing.141 The English courts have regularly taken into account
treaty-based standards concerning human rights in order to resolve
issues of common law, including the legality of telephone tapping,142 the
offence of criminal libel,143 contempt of court,144and freedom of
association.145 This development is not confined to human rights
treaties: Alcom Ltd v Republic of Colombia, for example, involved
reference to general international law for purposes of statutory
interpretation in the context of state immunity.146
(C) Customary International Law147
(i) ‘Incorporation’
It has become received wisdom that the common law approach to
customary international law is that of ‘incorporation’,148 under which
customary rules are to be considered ‘part of the law of the land’ provided
they are not inconsistent with Acts of Parliament. The following statement
by Lord Denning MR in Trendtex Trading Corp v Central Bank of
Nigeria is usually cited in support of the proposition:
Seeing that the rules of international law have changed—and do change—and that the
courts have given effect to the changes without any Act of Parliament, it follows…
inexorably that the rules of international law, as existing from time to time, do form part of
149
English law.
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(p. 68) But according to Lord Wilberforce, it may be wise to ‘avoid
commitment to more of the admired judgment of Lord Denning MR than
is necessary’.150 The position in England is not that custom forms part of
the common law (how can foreign states of whatever legal tradition make
the common law?), but that it is a source of English law that the courts
may draw upon as required.151 The doctrine is decisive only occasionally.
According to O’Keefe, outside of immunities cases it has only twice had a
decisive impact on the outcome,152 although there are other cases where
it has been influential.
As Lord Bingham said in R v Jones (Margaret):
The appellants contended that the law of nations in its full extent is part of the law of
England and Wales. The Crown did not challenge the general truth of this proposition, for
which there is indeed old and high authority…I would for my part hesitate…to accept this
proposition in quite the unqualified terms in which it has oft en been stated. There seems
to be truth in Brierly’s contention…that international law is not a part, but is one of the
sources, of English law.153
In short, the relationship of custom and the common law is more nuanced
than either the doctrines of incorporation or transformation would
suggest.154
(ii) The process and limits of ‘incorporation’
It is possible to discern a broad process in the way the common law
adopts customary international law. There is an initial question of or akin
to choice of law: is this a subject matter on which international law has
something to say, and which it allows (or even requires) national courts to
say. If (as with foreign state immunity) the answer to both questions is
yes, there is a second, constitutional question: is this an area where the
common law courts retain law-making power or (as with substantive
criminal law) not.155 Where it is appropriate to consider norms of
international law, rather than the law of the forum or a foreign law, then
the courts will take judicial notice of the applicable rules, whereas formal
evidence is required of foreign (national) law.
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(p. 69) However, the courts still have to ascertain the existence of the
rules of international law and their effect within the national sphere: the
latter task is a matter on which the rules of international law may provide
limited guidance. Case-law suggests that four considerations are relevant
to the question of incorporation.156
(a) The first question is whether the customary international law
rule is susceptible to domestic application.157For example, is the
rule in question of a strictly interstate character, or does it implicate
the rights of private parties? Self-evidently, the former may be
difficult to restructure as a norm within a domestic legal system,
aside from cases where the common law has transposed the
various state immunities directly from international law. In the case
of the latter, individual rights may be more readily
transposed.158Some courts have identified further limits that might
be imposed on such an attempted transposition, based not on
amenability for adoption, but on the character of the norm. In AlSaadoon, Laws LJ said:
[T]he…proposition that the customary rule may be sued as a cause of action in
the English courts is perhaps not so clear cut. It would of course have to be
shown that the rule did not conflict with any provision of English domestic law…I
apprehend the rule would also have to possess the status of jus cogens erga
omnes…159
But whilst ‘incorporation’ as conceived here has existed since the
eighteenth century, the concept of peremptory norms is much
more recent. The combination of the two is ahistorical—but the
insight that certain norms may imperatively call for implementation
is a valuable one. Something similar may have been implied by
Justice Souter’s dictum for the Supreme Court in Sosa that norms
of international law, to be given direct effect under the Alien Tort
Statute, have to be ‘specific, universal, and obliga tory’
(although Sosa concerned statutory, not common law
incorporation).160
(b) The next question is whether the proposed common law rule is
contradicted by any constitutional principle.161Thus in R v Jones
(Margaret), the issue was whether the crime of aggression in
customary international law could be considered part of the law of
England. Lord Bingham said that in order for a customary norm to
be translated to the common law, it must conform to the
constitution: ‘customary international
References
(p. 70) law is applicable in the English courts only where the
constitution permits’.162As the constitution requires that only
Parliament could be responsible for the creation of crimes in
English law,163aggression could not be considered an element of
the common law but was a matter for legislation.164Lords
Hoffmann and Mance reached substantially similar conclusions.165
Within the consideration of constitutionality and custom is the
principle that the common law is inferior to statute, a concept
flowing directly from the doctrine of parliamentary
sovereignty.166Thus, a customary norm may only be transposed
into the common law to the extent that it does not conflict with an
Act of Parliament. In Chung Chi Cheung v R, Lord Atkin said:167
The courts acknowledge the existence of a body of rules which nations accept
amongst themselves. On any judicial issue, they seek to ascertain the relevant
rule, and, having found it, they will treat it as incorporated into the domestic law,
so far as it is not inconsistent with rules enacted by statutes or finally declared
by their tribunals.
Thus, in Ex parte Thakrar, a statement in the Immigration Act 1979
that any exceptions to the rule that a non-patrial required leave to
enter the UK were to be found within the Act itself prevented the
introduction of an additional exception through the operation of
customary international law.168Similarly, in Al-Adsani v
Government of Kuwait, Mantell J would not accept the argument
that a common law tort of ‘torture’ arising from custom (even if it
could be said that one existed) would prevail over the provisions of
the State Immunity Act 1978.169
(c) A third consideration is whether the proposed rule is itself
contradicted by some antecedent principle of the common law.
In West Rand, Lord Alverstone CJ accepted that custom could
contribute to the common law insofar as it was not ‘contrary to the
principles of her laws as decided by her courts’.170Similarly, Lord
Atkin in Chung Chi Cheung v R conditioned incorporation on
consistency ‘with rules…finally
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(p. 71) declared by…tribunals’.171A practical example of how
extant principles may bar the expansion of the common law in this
way occurred in Chagos Islanders v Attorney General.172The case
concerned a claim for damages based in reliance on the UK’s
supposed breach of the international human right not to be
prevented from returning to one’s home state. Ouseley J denied
the claim, noting that even if breach of the right in question could
be said to violate a common law as well as customary right, this
could not, in itself, give rise to an action for damages. To do so,
His Honour noted, would be ‘no more and no less than a particular
example of a tort for unlawful administrative acts’,173the possibility
of which the House of Lords had previously excluded at common
law.174
(d) A further problem is one of precedent. In Trendtex, Lord
Denning said:
International law knows no rule of stare decisis. If this court is satisfied that the
rule of international law on a subject has changed from what it was 50 or 60
years ago, it can give effect to that change—and apply the change in our
English law— without waiting for the House of Lords to do it…After all, we are
not considering here the rules of English law on which the House has the final
say. We are considering the rules of international law.175
By contrast in Thai-Europe Tapioca Service Ltd v Government of
Pakistan Scarman LJ said:
it is important to realise that a rule of international law, once incorporated into
our law by decisions of a competent court, is not an inference of fact but a rule
of law. It therefore becomes part of our municipal law and the doctrine of stare
decisisapplies as much to that as to a rule of law with a strictly municipal
provenance.176
But it is excessively parochial to think that an incorporated rule of
international law is entirely domesticated, any more than an incorporated
treaty. It should be open to the courts to reconsider the rule if there are
indications of material change in international law, and more generally to
track developments in the law. On the one hand it was artificial to think
that a House of Lords decision on absolute immunity of 1938177 should
be considered as preclusive in the very different state of affairs in 1978.
On the other hand the decision in Trendtex was authority on the
contemporary state of international law, and was in fact followed as
such.178
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(p. 72) (D) Non-justiciability and act of state
(i) Non-justiciability
It was a long-standing position in English law that the Crown’s
prerogative powers were immune from judicial control. That is no longer
so,179 although the extent of judicial review depends on the subjectmatter.180
Despite these developments, several areas of government activity
connected with international law remain generally off limits to the courts.
In Abassi the Court of Appeal was asked to require the Foreign Secretary
to make representations to the US government on behalf of British
nationals detained in Guantanamo Bay. Although the Court was deeply
concerned by what it saw as US intransigence, it declined to make the
orders requested.181
The courts are also extremely reluctant to pronounce on issues
connected to the deployment of armed forces.182 In R v Jones
(Margaret), Lord Hoffmann acknowledged that whilst the House of Lords
was in principle capable of examining the deployment of armed forces by
the government, ‘[t]he decision to go to war, whether one thinks it was
right or wrong, fell squarely within the discretionary powers of the Crown
to defend the realm and conduct its foreign affairs’.183
Another area which remains within the traditional non-justiciable Crown
prerogative is treaty-making:184 this (in conjunction with the doctrine of no
direct effect) precludes most adjudication on unincorporated treaties. As
Lord Scott said in A v Secretary of State for the Home Department:
It is not, normally, the function of the courts to entertain proceedings the purpose of
which is to obtain a ruling as to whether an Act of Parliament is compatible with an
international treaty obligation entered into by the executive.…The executive has
extensive and varied prerogative powers that it can exercise in the name of the Crown
but none that permit lawmaking. In being asked, therefore, to perform the function to
which I have referred,
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(p. 73) the courts are…being asked to perform a function the consequences of which will
be essentially political in character rather than legal.185
There is, however, a measure of flexibility here,186 and the courts have
sought to reduce the effects of non-justiciability, including in relation to
unincorporated treaties. In the first place, courts are willing to interpret
unincorporated treaties where it is necessary to do so in order to
determine rights and obligations under domestic law and thereby ‘draw
the court into the field of international law’.187 In Occidental Exploration,
the Court of Appeal held that an award made in favour of the appellant
under the bilateral investment treaty (BIT) between the US and Ecuador
gave rise to justiciable rights in the UK, even though the BIT was
(unsurprisingly) not part of English law.188 The Court concluded:
We accept that the English principle of non-justiciability cannot, if it applies, be ousted by
consent. We are however concerned with issues regarding its proper scope and
interpretation in a novel context. The considerations which we have identified…all
militate against an understanding of that principle…which would tend, if anything, to
undermine the chosen scheme of those involved.189
Similarly, in Al-Jedda,190 the claimant alleged that his detention in Iraq by
British forces was in breach of the UK’s obligations under the ECHR. In
turn, the government asserted that the claimant’s detention was not only
justified by the need to ensure security in Iraq, but also by the terms of
Security Council Resolution 1546 of 2004, which qualified the UK’s
ECHR obligations by way of Article 103 of the Charter. Neither the
Charter nor the Resolution had been incorporated into English law. The
necessary foothold came from the Human Rights Act 1998, which gave
effect to the ECHR in UK law. As the Act provided that ECHR rights were
only applicable to the extent they were recognized on the international
law plane, the court was required to examine the effect of the Resolution
to determine the scope of the ECHR in the particular circumstance.191
In the second place, courts have demonstrated that they are willing to
consider unincorporated treaties as part of the process of finding the UK
to be in breach of its
References
(p. 74) obligations under international law, though the determination of
breach will have no legal effect of its own.192 Its use is most notable
when illuminating rights present in municipal law under the ECHR and
particularly Article 15, which permits the UK to take measures derogating
from the Convention provided that such measures are not inconsistent
with its other obligations under international law. Thus, in A v Secretary of
State for the Home Department, Lord Bingham—determining the validity
of a derogation under ECHR Article 15193 and the compatibility of the
Anti-terrorism, Crime and Security Act 2001 with ECHR Article 5—said:
What cannot be justified here is the decision to detain one group of suspected
international terrorists, defined by nationality or immigration status, and not another. To
do so was a violation of [ECHR] article 14. It was also a violation of article 26 of the
[International Covenant on Civil and Political Rights] and so inconsistent with the United
Kingdom’s other obligations under international law within the meaning of [ECHR] article
15…194
It is however very doubtful whether there is a broader exception to nonjusticiability for unincorporated human rights treaties.195
Thirdly, where the decision-maker explicitly relies on a treaty in making a
decision, the courts will apply normal standards of judicial review to the
treaty as so relied on.196
(ii) Judicial restraint and act of state
Policy considerations of a similar kind have led courts to apply a further
rule of non-justiciability, holding a claim to be barred if it requires
determination of the lawfulness or validity of acts of a foreign state. This
is a doctrine of English public law which, long familiar in a general way,
still has very uncertain limits.197
Broadly, the doctrine prescribes that courts do not adjudicate on matters
of international law arising in disputes between foreign states. The
modern source of the doctrine is Lord Wilberforce’s statement in Buttes
Gas that:
[T]he essential question is whether…there exists in English law a more general principle
that the courts will not adjudicate upon the transactions of foreign sovereign states.
Though I would prefer to avoid argument on terminology, it seems desirable to consider
this principle,
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(p. 75) if existing, not as a variety of ‘act of state’ but one for judicial restraint or
abstention…In my opinion there is, and for long has been, such a general principle,
starting in English law, adopted and generalized in the law of the United States of
America which is effective and compelling in English courts. This principle is not one of
discretion, but is inherent in the very nature of the judicial process…I find the principle
clearly stated that the courts in England will not adjudicate upon acts done abroad by
virtue of sovereign authority.198
Within this principle there are in fact two overlapping doctrines: judicial
restraint on the one hand, and act of state on the other. The former is
triggered by issues relating to the transactions of states,199 and requires
the court to exercise its discretion to determine whether it is sufficiently
equipped to handle the dispute. In Buttes Gas, the Court would have
been required to address vexed questions of international law arising
from the actions of two emirates in the Arabian Gulf with regard to a
contested island, Abu Musa, and two competing oil companies claiming
concessions within its territorial sea.
Judicial restraint is a discretionary principle,200 but where it applies it is a
substantive bar to adjudication, reflecting the incapacity of a national
court to deal adequately with certain issues on the international plane.
Thus, it cannot be waived, even by the state(s) concerned.201
The concept of act of state forms the hard core of the principle:202 it
refers to the non-justiciability in a national court of the acts of a foreign
state within its own territory203 or, exceptionally, outside it.204 Thus, in Ex
parte Johnson, it was held that once consent to a re-extradition had been
obtained by the UK from Austria under the European Convention on
Extradition,205 in the form of a diplomatic note, the court could not then
proceed to inquire into the quality of the consent so offered.206 As a
domestic rule of law, it is distinct from the doctrine of state immunity, a
rule of international law.207 Justiciability in this context refers to the act of
determining the lawfulness or validity
References
(p. 76) of a foreign act of state performed within its own domain; the court
is not prevented from taking note of its existence.208
As with the wider doctrine of non-justiciability, exceptions to the doctrine
of act of state nonetheless exist.209The first is that the acts of a foreign
state will be justiciable where their recognition would be contrary to
English public policy. The exception arose originally with respect to gross
human rights violations in Oppenheimer v Cattermole,210 and was
expanded in the decision of Kuwait Airways Corporation v Iraqi Airways
Company to include acts of state done in clear violation of international
law more generally.211 The case concerned the seizure and removal of
aircraft owned by Kuwait Airways during the illegal invasion of Kuwait by
Iraq in August 1990. But the scope of this exception is uncertain. Lord
Steyn stated that not every rule of public international law will create such
an exception.212 Lord Nicholls (with whom Lord Hoffmann agreed) stated
that the points of law before them were ‘rules of fundamental importance’
and quoted Oppenheim v Cattermole more generally to the effect that
‘[i]nternational law, for its part, recognises that a national court may
properly decline to give effect to legislative and other acts of foreign
states which are in violation of international law’. Moreover, the exception
was applied more broadly to the doctrine of judicial restraint as identified
in Buttes Gas, based on the dictum by Lord Wilberforce that abstention
was predicated on a lack of ‘manageable standards’. As Lord Nicholls
noted, the breach of international law was ‘plain beyond dispute’, and
was acknowledged as such by Iraq with its acceptance of the Security
Council-mandated ceasefire; accordingly, ‘[t]he standard being applied by
the court [was] clear and manageable, and the outcome not in doubt’.213
Thus ‘clearly established’ rules of international law may be considered
part of the public policy of the UK,214 as are human rights more
generall.215
The second exception arises where Parliament has rendered an issue
which is ordinary beyond the competence of the court justiciable. In the
first Pinochet case before the House of Lords, Lord Nicholls noted that
‘there can be no doubt that the [act of state] doctrine yields to a contrary
intention shown by Parliament’. In that case, the definition of ‘torture’ in
section 134(1) of the Criminal Justice Act 1988 and section
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(p. 77) 1(1) of the Taking of Hostages Act 1982 in terms required the
investigation of foreign officials in certain cases.
(E) The Common Law Tradition in the United States216
(i) Treaties
Formally US law views treaties and other international agreements as a
source of law, as described by Article VI§2 of the Constitution (the
Supremacy Clause):
[A]ll Treaties made or which shall be made with the authority of the United States, shall
be the supreme Law of the Land and the Judges in every state shall be bound thereby,
217
anything in the Constitution of Laws of any state to the contrary notwithstanding.
As such, treaties are on par with federal legislation, and will prevail over
laws enacted by the states. As Justice Sutherland said in United States v
Belmont:
Plainly, the external powers of the United States are to be exercised without regard to
state laws or policies…And while this rule in respect of treaties is established by the
express language of [Article VI] of the Constitution, the same rule would result in the
case of all international compacts and agreements from the very fact that complete
power over international affairs is in the national government and is not and cannot be
subject to any curtailment or interference on the part of the several states…In respect of
all international negotiations and compacts, and in respect of our foreign relations
218
generally, state lines disappear.
A principal point of difference between the common law tradition as
developed in the UK and the tradition that subsequently emerged in the
US is the method by which treaties are incorporated into municipal law.
In Foster v Neilsen,219 Justice Marshall adopted for the US a modified
version of the UK’s dualist model. At its heart was the distinction between
self-executing treaties, which by their terms could be incorporated into
municipal law without more, and non-self-executing treaties,220 which
required enabling legislation to be effective.221
Currently, the central question within US jurisprudence on treaties is the
process by which a court determines that a treaty or other international
agreement is self-executing. Here, vigorous debate has been prompted
by the Supreme Court’s decision in Medellin v Texas,222 which concerned
the domestic effect within the US of the
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(p. 78) decision of the International Court in Avena.223 There the
International Court held that the US was in breach of its obligations under
Article 36 of the Vienna Convention on Consular Relations (VCCR)224 to
provide consular notification to foreign nationals who are detained or
arrested. The consequence was an order for the ‘review and
reconsideration’ of the cases of 51 individuals so affected. The question
for determination by the Supreme Court in Medellin was whether the
Charter—which had not been the subject of an enabling statute issued by
Congress—was in this respect self-executing.
Earlier US decisions starting in the 1970s had referred to a variety of
factors to determine the self-executing status of the treaty under
consideration.225 The following list is indicative: ‘the purposes of the
treaty and the objectives of its creators, the existence of domestic
procedures and institutions appropriate for direct implementation, the
availability and feasibility of alternative enforcement methods, and the
immediate and long-range consequences of self- or non-selfexecution’.226 In Medellin, the Court gave far greater weight to the text of
the Charter. Chief Justice Roberts, speaking for the majority, said of
Article 94 (requiring that each Member comply with decisions of the
International Court to which it is a party):
The Article is not a directive to domestic courts. It does not provide that the United States
‘shall’ or ‘must’ comply with an ICJ decision, nor indicate that the Senate that ratified the
UN Charter intended to vest ICJ decisions with immediate legal effect in domestic courts.
Instead, ‘[t]he words of Article 94…call upon governments to take certain action.’227
On this basis, the majority concluded that as the Charter, the Optional
Protocol to the VCCR, and the Statute had not been incorporated into US
law by way of legislation and the treaties were not themselves selfexecuting, they could not be given judicial effect.228
As shown by Medellin, the Supreme Court’s current approach utilizes
predominantly the text of the treaty.229The ultimate issue is whether the
text ‘conveys an intention’
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(p. 79) of self-execution.230 In Medellin, the Court appears to have
viewed the intention of US treaty-makers as dispositive.231 In addition,
although some commentators—and notably the Restatement Third232—
had previously taken the position that there was, in cases of ambiguity, a
strong presumption in favour of the self-execution of treaties, the Court
in Medellin appears to have distanced itself from such a notion, instead
requiring that each treaty be considered on its facts, with reference to
text, structure, and ratification history.233However,
notwithstanding Medellin, important lower courts continue to apply the
more nuanced test for self-execution advocated in the Restatement
Third.234 In addition, the Supreme Court’s emphasis on text in Medellin is
not universally shared. The Senate Foreign Relations Committee, for
example, was unhappy with Medellin and modified its procedures in
response.235 Moreover, it might be suggested that the Supreme Court’s
approach does not accord with the reality of international treaty-making,
particularly in a multilateral context: it is not realistic to expect a
multilateral treaty involving negotiators from a range of legal cultures to
deliberately include in the text of their agreement express language to
satisfy the Court’s parochial requirements.236
The final question is the effect—if any—of an unimplemented non-selfexecut-ing treaty. As Bradley points out, Medellin is ambiguous on this
point.237 The Court rejected the argument that such a treaty merely fails
to provide a private right of action within US law, but may still be applied
where such a cause of action is not necessary,238 but refused to
comment further. As a basic rule, however, a non-self-executing treaty
which has not been the subject of implementing legislation has no status
in domestic law and is not judicially enforceable.239 In Medellin, the
dissent went so far as to imply that the conclusion of such a treaty is to
be considered ‘a near useless act’.240
But an analogue of the UK’s presumption of compatibility is present in US
law. In Murray v Schooner Charming Betsy, Marshall CJ wrote that ‘an
act of Congress
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(p. 80) ought never be construed to violate the law of nations if any other
possible construction remains’.241 In the Restatement Third, this is
rendered as ‘[w]here fairly possible, a United States statute is to be
construed so as not to conflict with international law or with an
international agreement of the United States’.242 The canon was
developed to resolve situations in which a treaty or rule of customary
international law conflicted with a statute passed later in time by
Congress. Ordinarily, this would result in the latter impliedly repealing the
former. Charming Betsy by contrast required later statutes to be
interpreted, if possible, consistently with the earlier international law
obligations of the US. As with the UK presumption of compatibility,
the Charming Betsy canon is only applicable where the statute to be
interpreted is ambiguous on its face.243
Neither the Charming Betsy nor the Restatement Third makes any
distinction between self-executing and non-self-executing treaties. As
such, courts have interpreted the canon to breathe life into non-selfexecuting treaties.244 Such treaties may be held to have codified
customary international law;245 more broadly they represent international
obligations entered into in good faith from which the US presumably does
not wish to depart. Particularly influential is the International Covenant on
Civil and Political Rights (ICCPR),246 which was ratified by the US in
1992 with a declaration that Articles 1 to 27 were not self-executing.
Despite this, the courts regularly utilize Charming Betsy in order to avoid
conflicts with the non-self-executing provisions of the ICCPR.247
The Charming Betsy has been applied to treaties other than the
ICCPR,248 may be invoked in a purely domestic context with no
international nexus,249 and its relevance does not appear to have been
diminished appreciably by the decision in Medellin.250
(ii) Customary international law
The traditional understanding is that the US relationship with custom is
essentially monist in character. This position was formulated early on in
the Paquete Habana:
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(p. 81) International law is part of our law, and must be ascertained and administered by
the courts of justice of appropriate jurisdiction as often as questions of right depending
on it are duly presented for their determination. For this purpose, where there is no treaty
and no controlling executive or legislative act or judicial decision, resort must be had to
the customs and usages of civilized nations.251
The conventional view of custom252 vis-à-vis the municipal law of the US
is therefore that it is a source of law, first in the sense that state and
federal courts may apply these rules to determine a dispute, and
secondly in the sense that rules of custom, as per the Charming Betsy,
are tools of interpretation.253 Thus the Restatement Third:254 ‘[c]ustomary
international law is considered to be like common law in the US, but is
federal law’. This basic position remains unchallenged: two recent
Supreme Court decisions saw no reason to depart from the Paquete
Habana.255 But ‘[c]ustomary law does not ordinarily confer legal rights on
individuals or companies, even rights that might be enforced by a
defensive suit such as one to enjoin or to terminate a violation by the
United States (or a State) of customary international law’.256
Customary international law, however, has recently been the cause of
considerable scholarly friction,257 with some critics arguing that the
monist incorporation of custom into municipal law is inconsistent with
principles of democratic governance.258 Dubinsky links these concerns
with emerging efforts to diminish the scope of custom in American
municipal law, principally through the undermining of the Charming
Betsy canon.259 In Serra v Lapin, a case concerning the consistency of
prison wages with customary international law, it was said that
the Charming Betsy ‘bears on a limited range of cases’260 and could not
apply to purely domestic matters that did not inject considerations of
international comity.261 In Al-Bihani v Obama,262 the DC Circuit Court of
Appeals was called upon to determine whether a foreign national was
detained validly pursuant to the 2001 Congressional Authorization for the
Use of Military Force (AUMF). Remarkably, Judge Brown, writing for the
majority, held that international law could not limit the President’s
authority under the AUMF for three reasons. First, the AUMF contained
no indication that the customary international
References
(p. 82) humanitarian law constituted an extra-textual limiting
principle,263 an argument that cuts clear across the line of authorities
beginning with the Charming Betsy that such an intention need not be
expressed. Second, the laws of war had not been introduced directly into
US law via enabling legislation and therefore could not be a source of
authority for the court.264 True it is, customary international law could not
have provided the detainee in Al-Bihani with rights opposable against the
US government,265 but that was not what was sought; rather, Al-Bihani
was relying on the AUMF as the source of his rights as interpreted in light
of custom. Third, it was said that the laws of war were so vague that they
were of limited use in determining the scope of the President’s powers
under the AUMF and that moreover, ‘we have no occasion here to
quibble over the intricate application of vague treaty provisions and
amorphous customary principles’.266 Leaving to one side questions as to
the indeterminacy of international humanitarian law, this is—in the words
of the separate opinion of Judge Williams—‘hard to square’267 with the
decision of the Supreme Court in Hamdin v Rumsfeld which relied
explicitly on the laws of war to determine that the AUMF included the
authority to detain.268
The DC Circuit, sitting en banc, declined to rehear Al-Bihani v
Obama,269 but in refusing the application, the majority took the unusual
step of simply issuing a short statement to the effect that the issues of the
domestic legal status of the laws of armed conflict addressed in the
panel’s decision were not necessary for the disposition of the merits.270
(iii) The Alien Tort Statute (ATS)271
The ATS gives federal courts jurisdiction272 over cases where the
applicable law is customary international law where (a) the plaintiff is an
alien, (b) the defendant273 is responsible for a tort, and (c) the tort in
question violates international law, including
References
(p. 83) customary international law. Since the ‘rediscovery’ of the ATS in
the 1980s, it has been extensively litigated, breathing life into custom as
an element of domestic law in the US. Dozens of actions have been
brought, some resulting in sizeable settlements. To date, the claims
pursued have related largely to human rights abuses; courts have found
that such norms include (but are not limited to) prohibitions on genocide
and war crimes,274 torture275 and cruel, inhuman, or degrading
treatment,276 summary execution,277disappearances,278 non-consensual
medical experimentation on children,279 and forced labour.280 The
Supreme Court in Sosa v Alvarez-Machain,281 however, narrowed the
scope of those customary international law rules the breach of which
could grant a right of action under the ATS to ‘norm[s] of an international
character accepted by the civilized world’ that are ‘defined with a
specificity comparable to the features of the 18th-century paradigms we
have recognized’,282 being those norms with a definite content and
similar international acceptance to the rules extant at the time the Act
was passed (e.g. offences against ambassadors, violations of safe
conduct, and piracy). Thus, in Sosa, the applicant failed in his claim
based on ‘the clear and universally recognized norm prohibiting arbitrary
arrest and detention’.283 The principles enunciated in Sosa were applied
in Sarei v Rio Tinto, with the majority there holding that the plaintiffs’
claims of genocide and war crimes fell within the ATS, whereas claims
alleging crimes against humanity arising from a blockade and racial
discrimination did not.284
(iv) Non-justiciability of political questions and acts of state
The doctrines of act of state and the non-justiciability of political
questions are analogous to the similar doctrines that exist in the UK. Both
are, however, in a state of considerable flux.
Like the English conception of non-justiciability, the political question
doctrine seeks to remove from judicial scrutiny certain politically sensitive
questions thought
References
285
(p. 84) inappropriate for judicial resolution.285 A judicial construct and not
constitutionally required, it may be traced back to Marbury v
Madison,286 though the most authoritative modern statement was
in Baker v Carr, which identified six factors that might render a dispute
non-justiciable:
Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving
it; or the impossibility of deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.287
Despite the litany of factors given in Baker v Carr, the doctrine has been
applied only rarely and idiosyncratically by the Supreme Court and others
in a few discrete domestic fields, including political apportionment and
gerrymandering,288 impeachment,289 constitutional amendments,290 the
political status of foreign countries,291 and most importantly for the
purposes of the present discussion, foreign affairs and the deployment of
armed forces.292 Thus in Greenham Women against Cruise Missiles v
Reagan,293 the decision to deploy American cruise missiles in the UK
was held non-justiciable.
As was emphasized in Klinghoffer, ‘the doctrine is one of “political
questions”, not “political cases” ’.294 Similarly, in Kadić v Karadžić, it was
said:
Although we too recognize the potentially detrimental effects of judicial action in cases of
this nature, we do not embrace the rather categorical views as to the inappropriateness
of judicial action…Not every case ‘touching foreign relations’ is nonjusticiable…and
judges should not reflexively invoke these doctrines to avoid difficult and somewhat
sensitive
References
(p. 85) decisions in the context of human rights. We believe a preferable approach is to
weigh carefully the relevant considerations on a case-by-case basis. This will permit the
judiciary to act where appropriate in light of the express legislative mandate of the
Congress…without compromising the primacy of the political branches in foreign
affairs.295
296
The doctrine of act of state296 in the US developed alongside its UK
counterpart, and to a certain extent influenced its development.297 It is
presented in the Restatement Third as follows:
In the absence of a treaty or other unambiguous agreements regarding controlling legal
principles, courts in the United States will generally refrain from examining the validity of
a taking by a foreign state of property within its own territory, or sitting in judgment on
other acts of a governmental character done by a foreign state within its own territory
and applicable there.298
The doctrine emerged in Underhillv Hernandez,299 which rooted the
concept in considerations of international comity, and presented it as an
iron rule from which no derogation was permitted:
Every sovereign state is bound to respect the independence of every other sovereign
State, and the courts of one country will not sit in judgment on the acts of the
government of another done within its own territory. Redress of grievances by reason of
such acts must be obtained through the mean open to be availed of by sovereign powers
as between themselves.300
Over time, however, the rationale of the doctrine shifted and in the
process it became more flexible.301 In Banco Nacional de Cuba v
Sabbatino the Supreme Court repositioned the act of state doctrine and
abandoned the Underhill justification of state sovereignty as
determinative, though sovereignty still ‘bears on the wisdom of employing
[it]’.302 Rather, the court aligned act of state—like the political question
doctrine— with considerations of the separation of powers, and concerns
as to possible adverse effects on US foreign
policy.303 The Sabbatino Court listed three non-exclusive factors as
relevant in applying the doctrine: (a) the greater the degree of codification
or
References
(p. 86) consensus concerning a particular area of international law to
which the act relates, the more appropriate it is for the judiciary to render
decisions regarding it; (b) the greater the political controversy attending
the matter, the more likely the doctrine is to be applied; and (c) where the
government that committed the act still exists, the doctrine is more likely
to be applied. In applying these factors, the court concluded that it was
not competent to examine the validity of the nationalization of foreign
property by the Cuban government within its own territory, even where
the action was illegal under international law.304
The doctrine was significantly restricted in its operation when revisited by
the Supreme Court in Kirkpatrick.305Two American contractors had bid
for a construction contract with the Nigerian Air Force. The winner
secured the contract through bribery, and the loser sued under US antiracketeering laws. The Court held that the kind of balancing act set down
in Sabbatino was only required where a plaintiff challenged the legal
effect of the act of a foreign state. Thus the act of state doctrine will only
apply where a US court is called upon squarely to assess the validity of
the act in question under the sovereign’s own laws. Peripheral
engagement with acts of state will not frustrate a claim, nor will an
assessment of whether the act took place in fact or the motivations
behind it.306 Moreover, the doctrine applies only to ‘official’ or ‘public’ acts
of the sovereign (acts iure imperii);307 thus it will apply to acts such as the
passage of laws, governmental decrees, the creation of government
agencies and military/police actions, but not to those things performed in
a private capacity (acts iure gestionis).308
The act of state doctrine is also subject to a series of discrete further
exceptions.309 In the first place, as it is, in some sense, a choice of law
issue, it will not apply where a US court can look to a treaty or other
‘unambiguous instrument regarding controlling legal principles’.310
The second exception is sometimes referred to as
the Bernstein exception,311 and will arise where the State Department
guides the courts as to the applicability of the act of state doctrine. The
status of this exception is controversial, however; in Bernstein itself, a
majority of the justices refused to accept the directive of the State
Department as dispositive. In a later case, Justice Douglas warned that
such a rule would make
References
(p. 87) the Supreme Court a ‘mere errand boy for the Executive Branch
which may choose to pick some people’s chestnuts from the fire, but not
others’.312 The Supreme Court in Kirkpatrick placed special emphasis on
the judiciary’s responsibilities under Article III of the Constitution, placing
the exception further in doubt.313
The third exception is similarly inchoate, and may arise where the act of
state complained of is ‘commercial’ rather than ‘official’.314 This
distinction can be seen as a continuation of the public/private discussion
surrounding the scope of the original doctrine and has never been
adopted squarely by the Supreme Court.315But the situation is
characterized by divisions and debate between and even within the
various Circuit Courts of Appeal.316
The fourth, fifth, and six exceptions to the act of state doctrine are
statutory in origin. The fourth is relatively straightforward: the Federal
Arbitration Act317 provides expressly that ‘[e]nforcement of arbitration
agreements…shall not be refused on the basis of the Act of State
doctrine’.318 The fifth was an amendment introduced by the outraged
Senator Hickenlooper of Iowa in response to the decision in Sabbatino.
The so-called ‘Second Hickenlooper Amendment’319 provides generally
that the act of state doctrine shall not apply to claims concerning alleged
expropriations in violation of international law. It has, however, been
interpreted narrowly by the courts, which have held that the amendment
applies only where specific properly directly involved in the unlawful act
of state is located in the US.320 Other courts have held that the
amendment will only apply in relation to property rights, as opposed to
rights arising in contract.321 The sixth statutory exception may arise in the
case of the Torture Victims Protection Act,322 which allows the filing of
civil suits against individuals who, acting in an official capacity for a
foreign nation, have committed torture or extrajudicial killing.
References
(p. 88) 4. International Law in the Civil Law
Tradition
It is misleading to speak of a civil law approach to the reception of
international law; since no uniform approach can be identified. A few
general observations may be made before moving on to consider six
specific case studies (viz., France, Germany, Italy, Russia, the
Netherlands, Sweden).
With some notable exceptions, such as the Netherlands, Italy, and
Sweden, European jurisdictions approach customary international law
from a monist perspective, and indeed many give it some form of
constitutional standing. Europe is also emblematic of the monist
approach to treaty law, with treaties—to the extent they are capable of
standing alone—given direct effect. This is not to say that the executive is
given a free hand to make treaties, but rather that the constitutions of
states such as France, the Russian Federation, and the Netherlands
provide that the legislature play a role in the treaty-making
process prior to signature and/or ratification. Finally, with regard to
judicial avoidance techniques, the European countries tend to view the
non-justiciability of foreign acts of state as an Anglo-American doctrine.
They do, however, practice varying degrees of judicial restraint with
regard to the acts of their own governments, with France and Italy
practicing a model of non-justiciability similar to UK and US practice,
Germany and the Netherlands operating a more overtly constitutional
model, Sweden coming close to seeing all legislative acts as nonjusticiable, and Russia adopting the completely opposite view.
(A) Customary international law in the European tradition
As a general rule, the civil law jurisdictions adopt a monist stance with
regard to customary international law, with incorporation frequently
occurring at a constitutional level.
(i) France
In France, this situation subsists despite the fact that the 1958
Constitution of the Fifth Republic makes no reference to custom. Rather,
it contains in its preamble a renvoi to its predecessor,323 the 1946
Constitution of the Fourth Republic, which had stated that ‘the French
Republic, true to its traditions, conforms to the rules of international public
law’.324 The only relevant substantive provision in the 1946 preamble
states that: ‘Subject to reciprocity, France shall consent to the limitations
upon its sovereignty (p. 89) necessary to the organization and
preservation of peace’.325 These are ambiguous guidelines for the
incorporation of custom.326 But the Conseil Constitutionnel appears to
have accepted the applicability of custom into the French system and
attempts to ensure the compatibility of French legislation with it.327 For
example, by referring in its decision of 9 April 1992328 on the Treaty of
Maastricht329 to the ‘rules of public international law’,
the Conseil accepted ‘the rule pacta sunt servanda which implies that all
treaties that are in force bind the parties and must be executed by them
in good faith’.
Some scholars seek to draw comparisons between the approach of
the Conseil Constitutionnel and the supposedly negative approach of
the Conseil d’État.330 This is not entirely unfair: as noted by
Decaux,331 whilst the latter may recognize the existence of custom it
tends to bestow on it an infra-legislative character, at least insofar as it
cannot prevail over later domestic laws.332
(ii) Germany
The position is much more straightforward in Germany: the Basic Law
provides in Article 25 that ‘[t]he general rules of public international law
form part of the Federal law. They take precedence over the laws and
directly create rights and duties for the inhabitants of the Federal
territory’.333 The first sentence of Article 25 establishes custom as part of
German law; the second elevates it in the municipal hierarchy of norms,
such that any internal legislation deemed inconsistent will be void.
Custom is, however, subject to the provisions of the Basic Law itself. But
the Federal Constitutional Court has developed an unwritten principle on
the commitment of the Basic Law to international law,334 requiring all
municipal law—including the Basic Law itself—to be interpreted
consistently with international law to the extent possible.
References
(p. 90) In general German judges may take judicial notice of the rules of
customary international law and apply them as such.335 In case of doubt
as to whether a customary rule exists or is capable of creating individual
rights, Article 100(2) of the Basic Law requires the matter to be referred
to the Federal Constitutional Court, which by tradition includes a public
international law specialist.
(iii) Italy
A similar position has been taken by Italy, with Article 10(1) of the
Constitution of 1948 providing that ‘[t]he Italian legal system conforms to
the generally recognized rules of international law’. This provides a
vehicle for the incorporation of custom into municipal law, though the
ordinary method of integration via legislation remains especially for those
norms of customary international law which are considered to be nonself-executing. Within the domestic hierarchy, therefore, custom assumes
the status of a constitutional directive, and municipal laws will be invalid
to the extent of any inconsistency. This leaves open the question whether
custom is to be considered superior to the Constitution itself, an issue
addressed by the Constitutional Court in Russel v Societa Immobiliare
Soblim,336 which concerned a possible conflict between diplomatic
immunity and Article 24(1) of the Constitution guaranteeing an individual
right of suit. There it was held that custom—by way of the lex
specialis rule—could only prevail over the terms of the Constitution where
the norm in question was formed prior to the entry into force of the
Constitution. More recently, however, the Court appears to have adjusted
this rigidly chronological rule, and has since stated that ‘fundamental
principles of the constitutional order’ and ‘inalienable rights of the human
being’ are the only limitations on the incorporation of custom.337 Thus
custom is considered a source of law that may override the Constitution
as lex specialis to the extent that is does not conflict with a fundamental
rule of the constitutional order concerning an inalienable human
right.338 In a more recent case the Corte di Cassazione said:
Article 10, paragraph 1, of the Constitution affirms that the Italian legal order must
conform to the generally recognized rules of international law…However, even those
scholars maintaining that customary rules incorporated by means of Article 10 enjoy a
constitutional status…recognize that they must respect the basic principles of our legal
order, which cannot be derogated from or modified. Fundamental human rights are
among the constitutional principles which cannot be derogated from by generally
recognized rules of international law.339
References
(p. 91) Within the Italian system, Article 10(1) represents an unusually
powerful method of direct incorporation with respect to custom; it has
been said to be a ‘permanent converter’ of such norms.340 It has been
held to extend to peremptory norms as well as general principles of
international law.341 Thus all domestic legal institutions have jurisdiction
to verify the content of customary international law and apply it to
relevant municipal statutes. The courts are considered independent in
this respect and intervention by legislature or executive is not permitted.
Nor is the court required to seek proof from a party seeking to apply a
customary rule any more than any other rule of Italian law.
(iv) Russian Federation
Perhaps the most unusual situation is that of the Russian Federation. On
the surface, the Russian position owes much to the strongly monist
attitude towards custom seen in Germany and Italy. Article 15(4) of the
Constitution of the Russian Federation of 1993 provides that the
‘commonly recognized principles and norms of the international law and
the international treaties of the Russian Federation shall be a component
part of its legal system’.342 This is not an ordinary constitutional norm; it
is part of the first chapter of the Constitution, which may only be
amended via a complicated special procedure. Moreover, the rule has
been replicated in all codes and Federal Laws adopted after the
Constitution entered into effect.343 This stands in marked contrast to the
system as it stood under the Soviet Union, where the invocation of
international law by the courts was rare.344
Nonetheless the reality differs very much from the theory of Article 15(4).
Quite simply, Russian courts are ill equipped to determine the content of
custom and the Supreme Court offers the lower courts very little in the
way of useful direction. In the 10 October 2003 ruling of the Plenum of
the Supreme Court, it was held that:
The commonly recognised principles of the international law shall imply the basic
imperative norms of the international law accepted and recognised by the international
community of States as a whole, the deviation from which is inadmissible. The commonly
recognised principles of the international law, in particular, comprise the principle of
universal respect for human rights and the principle of fair implementation of international
obligations. The commonly recognised norm of the international law shall imply the rule
of conduct
References
(p. 92) accepted and recognised as legally mandatory by the international community of
States as a whole.345
The failure to articulate the procedure by which custom is to be received
into Russian municipal law underpins Tikhomirov’s observation that
Russian courts tend not to apply customary international law, but prefer
to have reference to the corpus of conventional law that Russia has
accumulated.346 Nonetheless, custom is applied on occasion, for
example in Re Khordodovskiy,347 where the applicant brought
proceedings to have a portion of the Rules of Internal Discipline in
Penitentiary Institutions invalidated. The provision prevented a prisoner
from obtaining access to a lawyer or other representative within the
prisoner’s working hours, a position contrary to customary international
law.348 The Cassation Chamber of the Supreme Court held that by virtue
of Article 15(4) of the Constitution, this norm had been integrated into the
municipal law of the Russian Federation, and upheld the decision of the
Supreme Court invalidating the offending regulation.349
(v) The Netherlands
In contrast to its position on treaties, the Constitution of the Netherlands
is silent as to the municipal effect of custom.350 In principle, it does not
prevail over domestic legislation,351 the Constitution or the 1954 Charter
for the Kingdom.352 But several domestic statutes seek to incorporate
custom into municipal law on a sui generis basis; where this occurs and
the norm in question is self-executing, it will prevail over other domestic
laws.353 In certain other instances, custom may be integrated without the
need for implementing legislation,354 though custom will only take priority
over domestic delegated legislation. On those rare occasions where the
Dutch courts make
References
(p. 93) reference to custom, it is considered appropriate for them to take
into account the views of the government, which represents the state in
international affairs and is as such considered to be a law-making
actor,355 unless the custom in question is so clear that no further input is
required.
(vi) Sweden
Of the systems analysed, the most strongly dualist (at least formally) is
that of Sweden. Nowhere in the Swedish Constitution is customary law
mentioned and no statute purports to integrate customary international
law as a whole into Swedish municipal law. Aside from European Court of
Human Rights and EU cases, sui generis examples of transformation of
customary norms are largely confined to the criminal sphere.356
However, customary international law is not deprived of all legal effect
within the Swedish legal system. In fact, the Swedish Supreme Court has
applied principles of customary international law when such principles are
not enshrined in statute.357 Moreover, Swedish courts assume that
the Riksdag and the executive do not intend to violate international law
when enacting statutes or issuing regulations.358 Ambiguous statutes will,
where possible, be interpreted consistently with international law.
Moreover, Swedish courts may go further still and assume a tacit
reservation in favour of international law within Swedish legislation
generally. In light of the above, Swedish courts have granted foreign
states jurisdictional immunity despite the absence of any rule that permits
it.359 But where a principle of custom conflicts directly with Swedish law
and permits no reinterpretation, the court is expected to follow the
municipal directive.360
(B) Treaties and National Law in the European tradition
A relatively common theme between European jurisdictions is the
supremacy of treaties over domestic law. For this reason, European
constitutions will generally prescribe careful controls over the signature
and ratification of international agreements.
References
(p. 94) (i) France
This may be seen in the context of the French Constitution, which
provides in Article 55 that:
Treaties or agreements duly ratified or approved shall, upon publication, prevail over
Acts of Parliament, subject, with respect to each agreement or treaty, to its application by
the other party.
This places treaties at a level superior to ordinary legislation but inferior
to the Constitution.361 But the Conseil Constitutionnel does not consider
treaties to form part of the corpus of constitutionality (i.e., constitutional
norms in their own right), meaning that it is spared the ordeal of
assessing the conformity of every new treaty or international agreement
with those that came before it.362 Article 54 does provide some form of
constitutional oversight by way of referral ‘from the President of the
Republic…the Prime Minister…the President of one or the other Houses
or from sixty Members of the National Assembly or sixty Senators’.
Where the Conseil declares a proposed agreement incompatible, revision
of the Constitution prior to ratification under Article 52 or 53 is required or
the treaty will need to be abandoned.363
Insofar as the actual incorporation of treaties is concerned, the
Constitution distinguishes between ordinary treaties, which may be
signed and ratified by the President under Article 52, and those treaties
which require an additional act of Parliament in order for ratification to
occur (Article 53):
Peace Treaties, Trade agreements, treaties or agreements relating to international
organization, those committing the finances of the State, those modifying provisions
which are the preserve of statute law, those relating to the status of persons, and those
involving the ceding, exchanging or acquiring of territory, may be ratified or approved
only by an Act of Parliament.
They shall not take effect until such ratification or approval has been secured.
The category of treaties defined by Article 53 is potentially broad,
rendering France in respect of most significant agreements effectively
dualist,364 though it claims to be a monist jurisdiction in the sense that no
directly implementing statute is required
References
(p. 95) to give a duly concluded and published treaty domestic effect. The
Article 53 division does not correspond to any taxonomy found
elsewhere, and thus irrespective of whether ratification by Parliament is
required prior to signature, France will incur an international obligation
upon signature.
As stated in Article 55 of the Constitution, once a treaty has (as the case
may be) been subjected to prior scrutiny by the Conseil Constitutionnel,
prompted constitutional revision, been ratified by the required number of
parties and been published in the Journal Officiel, it will prima facie have
supremacy over domestic law. Treaties will ordinarily be held to be selfexecuting, save where (a) the treaty in question contains only obligations
directed to and as between states or (b) it cannot be applied without
legislative elaboration. The obstacle course does not end there, however:
the Conseil Constitutionnel has proved curiously reticent when called
upon to assess the conformity of domestic laws with published
treaties.365 This may be explained by the refusal of the Conseil to give
constitutional status to international norms,366 thus allowing for the Cour
de Cassation and Conseil d’État, which have no jurisdiction to exercise
constitutional control, to assess the conformity of later laws with treaties.
The jurisprudence of the Cour de Cassation is accordingly more
forthright: in Cafés Jacques Vabre367 it was held that the EEC
Treaty368 was to be applied over the French Customs Code, even though
the latter was later in time. The Conseil d’État went further still in
the Gardedieu judgment, noting that the responsibility of the state is
…susceptible to being engaged…because of obligations that belong to it to ensure the
respect for international conventions by public authorities, to make amends for all
prejudices that result from the intervention of a law that is adopted in disregard of the
international obligations of France.369
When applying this principle, French courts must continue to comply with
the terms of the Constitution. A treaty that has not been published in
the Journal Officiel cannot be invoked before a judge and will not have
domestic effect, even if in force
References
370
(p. 96) internationall.370 The court will also be required to assess the
condition of ‘reciprocity’ in Article 55,371though the Conseil
Constitutionnel has somewhat narrowed the scope of this caveat such
that it does not have to apply to all treaties,372 either on the basis of the
subjective intention of the legislature in ratifying it or the objective
character of the rights contained within the treaty.373 Thus, when
examining the ICC Statute,374 the Conseil stated that the obligations that
follow from it ‘apply to each of the State parties independently from
conditions for their execution by other parties; that thus the reservation of
reciprocity mentioned in Article 55 of the Constitution is not to be
applied’.375 Where the issue is raised before the Conseil d’État, it must
consult the Ministry of Foreign Affairs as to whether reciprocity
exists.376 It has generally confined application of the doctrine to bilateral
treaties, presumably due to the difficulty of monitoring international
participation in multilateral treaties of an objective character.377 This
traditional stance is subject to potential changes, however, as the
European Court of Human Rights has considered it to be a violation of
the right to fair trial.378
(ii) Germany
Again, the position in Germany is more direct. Article 59(2) of the Basic
Law bestows on the legislature the capacity to regulate the treaty-making
power of the executive as follows:
Treaties that regulate the political relations of the Federation or relate to subjects of
federal legislation require the consent or participation, in the form of a federal statute, of
the bodies competent in any specific case for such federal legislation.
Due to the broad wording of Article 59(2), most treaties concluded by
Germany will require prior legislative ratification, published in
the Bundesgesetzblatt.379 Following entry into force of the treaty, the
German courts will apply it as part of national law.380 Thus a treaty
stands on a similar footing to an ordinary statute and may be repealed
References
(p. 97) expressly or impliedly by later legislation, though there is a heavy
presumption against this.381 The views of the executive will not be taken
into account due to a fairly strict separation of powers and the total
absence of any amicus curiae procedure by which it might make itself
heard.382
In applying treaties, German courts recognize the distinction between
self-executing and non-self-executing treaties, though there is a certain
tendency to assume the latter. A treaty provision will be considered nonself-executing where (1) the treaty excludes direct application, (2) the
treaty refers to the necessity of further implementation by states parties,
either nationally (by decree) or internationally (by further interstate
agreements), and (3) the treaty provision in question cannot be applied
directly as it (a) does not designate the responsible administration, (b)
does not define a necessary administrative procedure, or (c) does not
designate the jurisdiction of a specific court.383 The Federal
Constitutional Court has a special role to play in exercising judicial review
of lower courts beyond what would be appropriate in ordinary domestic
cases:
[T]he Federal Constitutional Court is also competent to prevent and remove, if possible,
violations of public international law that consist in the incorrect application or nonobservance by German courts of international law obligations and may give rise to
international law responsibility on the part of Germany…In this, the Federal
Constitutional Court is indirectly in the service of enforcing international law and in this
way reduces the risk of failing to comply with international law. For this reason, it may be
necessary, deviating from the customary standard, to review the application and
interpretation of international law treaties by the ordinary courts.384
Under this system, problems may arise where a treaty requiring
implementation via domestic legislation refers matters to an international
tribunal which then issues a decision inconsistent with a pronouncement
of the Federal Constitutional Court. This occurred in 2004, where the
European Court of Human Rights ruled the developed approach of the
Federal Constitutional Court with respect to the right to privacy
inconsistent with ECHR Article 8.385 As a result, the Court made a
pronouncement as to the rank and role of the ECHR within the German
legal order:386 it held that while a constitutional complaint could only be
based on an alleged violation of fundamental rights guaranteed in
the Grundgesetz, and not on the ECHR as such, the ECHR nonetheless
formed part of the legal order. Thus the German courts were required to
take heed of the ECHR as interpreted by the European Court of Human
Rights, with a failure to do so being grounds for a constitutional
complaint.387
References
(p. 98) (iii) Italy
The Italian Constitution makes no express provision for the incorporation
of international treaties into municipal law; accordingly, a treaty will
produce no direct effect unless it has been integrated via
legislation.388 Two methods for this are usually identified:389 the ‘special’
method, which incorporates the treaty into law via a short statute with the
treaty annexed; and the ‘ordinary’ method, which reformulates and
interprets the treaty before amending national legislation in order to
achieve implementation. The two are on occasion combined. The
ordinary procedure is utilized wherever the treaty is incapable of standing
on its own two feet as a national law, and therefore requires legislative
elaboration, with the special method used where international norms
‘have an inherent aptitude—to be ascertained on a case-by-case basis—
to be directly applied in the domestic order’.390
Legislative ratification via the special method will usually contain two
operative provisions: an article authorizing ratification, and an article
ordering ‘full implementation’ of the treaty. The latter is not a
constitutional requirement. The use of the special method will also
indicate that the legislature and executive consider the treaty in question
to be self-executing. In applying a treaty ratified through the use of the
special method, the courts need not defer to the other organs of state,
though they are bound to take into account treaty reservations that the
executive or legislature may formulate.391
The Italian Constitution was amended by a Constitutional Law of 18
October 2003 which introduced, inter alia, a new Article 117(1). This
states that ‘The legislative power shall be exercised by the State and the
Regions in compliance with the Constitution and with the constraints
deriving from European Union legislation and international obligations’.
This provision has been interpreted by the Constitutional Court as
meaning that provisions of those treaties that are in conformity with the
Constitution as regards their content and the procedure for their adoption
have indirectly a constitutional status which makes them prevail over
‘ordinary’ laws. This result is obtained by a case-by-case mechanism: a
judge who considers that a domestic law provision is incompatible with a
treaty, or with a customary international rule, may submit to the
Constitutional Court the question of non-conformity of that law with Article
117(1). The Constitutional Court has in various cases held legislation to
be contrary to Article 117(1), and abrogated them because of their nonconformity with the ECHR.392 Article 117 has not yet been applied to
other treaties or to customary rules.
(p. 99) (iv) Russian Federation
As with customary international law, treaties concluded by the Russian
Federation are formally integrated into its municipal legal system by
virtue of Article 15(4) of its Constitution.393 Article 15(4) goes on to state
that ‘[i]f other rules have been established by an international treaty of the
Russian Federation than provided for by law, the rules of the international
treaty shall apply’. This gives an international treaty priority over domestic
law, at least as a matter of principle;394 it does not, however state
whether a treaty has to fulfil certain conditions to gain such priority.395
In order for a treaty to enter the Russian legal system, it must be signed
and ratified. This was clarified by the Supreme Court as follows:
The courts shall take into consideration that an international treaty is applicable if the
Russian Federation expressed by competent authorities its consent to be bound by the
treaty through its action (signature, expressed of instruments constituting a treaty,
ratification, acceptance or approval, accession or by any other means if so agreed) and
on the assumption of entry into force for the Russian Federation.396
Under a federal law of 1995, a treaty which is self-executing and officially
published has direct legal effect within the Russian legal system.397 As
Butler observes, however, substantial numbers of USSR treaties were in
all likelihood never gazetted and are thus not subject to application by the
Russian courts.398 The Supreme Court gave some guidance in
determining the self-executing character of a treaty, giving particular
weight to ‘indications, contained in the treaty, regarding obligations of
Member States to amend national laws of these states’.399 Where a
treaty is not self-executing, municipal effect will be provided via legislative
enactment and embellishment.
In interpreting and applying international conventions, Russian courts
have proved punctilious in enforcing the above requirements.400 Insofar
as interpretation is concerned, the courts may have recourse to the views
of the Ministry of Foreign Affairs, (p. 100) but will ordinary apply VCLT
Articles 31 and 32. Their scope of review does not, however, extend to
assessing the content or legitimacy of any reservations made by the
government.401 Failure to apply relevant treaty provisions, or error in their
application, may be corrected on appeal.402
(v) The Netherlands
With respect to treaties, the system of incorporation described by the
Netherlands sits the furthest towards the monist end of the spectrum. All
treaties binding on the Netherlands as a matter of international law are
automatically incorporated into the Dutch municipal legal system, without
any need for implementing legislation. The rule is not constitutional per
se,403 but may be traced back to a 1919 decision of the Supreme
Court.404The historical rationale for the principle is only partly satisfied by
the democratic fact that treaties entered into by the Netherlands must be
approved by Parliament. Rather, as Nollkaemper notes,405 it is more a
reflection of the Netherlands’ generally accepting attitude towards
international law, as reflected in the constitutional imperative that the
Netherlands actively promote the development of the international legal
order.406
Due to the unusual efficiency of the Dutch system, careful control is
exercised over the treaty-making process by the bicameral legislature of
the Netherlands, the States-General.407 Although the government is
directly responsible for the negotiation of treaties, the legislature must be
kept informed throughout the process of negotiation and updated
regularly.408 It may also add interpretive declarations or reservations to
the bill approving the treaty, which are then incorporated by the
government once the treaty is formally concluded.409Once the text is
finalized and approved by the Council of Ministers, it will be referred to
the legislature prior to final signature or ratification and accompanied by
an explanatory memorandum, consisting primarily of an
References
(p. 101) article-by-article commentary. Article 91(1) of the Constitution
provides that ‘The Kingdom shall not be bound by treaties, nor shall
treaties be denounced without the prior approval of Parliament’. It goes
on to state, however, that ‘cases in which approval is not required shall
be specified by Act of Parliament’, leading the Law on Treaties to create
several significant loopholes by way of a list of exceptions contained in
Article 7 thereof.410 Treaties need not be the subject of prior approval
where exemption from this requirement has already been provided by
law,411 where they concern exclusively treaties for which approval has
already been granted,412 where the treaty is for a period of less than one
year and does not impose considerable financial obligations,413 where
the treaty (exceptionally) is secret and confidential,414 where the new
treaty merely extends an existing but expiring treaty415 and, with respect
to changes to execution, annexes that are already part of an approved
treaty.416 Furthermore, both the Constitution and the Law on Treaties
provide for the facility of merely tacit approval.
Treaties will ordinarily be approved by a simple majority within the StatesGeneral. Where, however, a proposed treaty conflicts with a provision of
the Constitution, Article 91(3) provides that a two-thirds majority in both
the upper and lower houses will be required for approval to be granted.
Once approved, the provisions of self-executing treaties will on a sui
generis basis override the Constitution, making the Netherlands one of
the few jurisdictions in the world that places international law obligations
above its constitutional instrument within the domestic legal order. This
much is provided in Article 94 of the Constitution, which provides that
‘[s]tatutory regulations in force within the Kingdom shall not be applicable
if such application is in conflict with provisions of treaties or of resolutions
of international organizations that are binding on all persons’. The
inclusion of the caveat ‘binding on all persons’ is an important one, and
has been interpreted as excluding those treaty provisions that require by
virtue of their content further parliamentary action in order to take effect
(i.e. non-self-executing provisions).417 The question of direct effect is
resolved by the courts first by reference to the intention of the states
parties to the treaty, with the (p. 102) court then resorting to a textual
418
analysis where intention cannot be determined.418 Even without direct
effect, treaties may still play a role in the interpretation of legislation:
‘Dutch courts should, as far as is possible, interpret and apply Dutch law
in such a way that the State meets its treaty obligations’.419
(vi) Sweden
During the eighteenth century, the Swedish position on the direct validity
and effect of treaties was similar to the current, liberal Dutch
practice,420 but in more recent times it has come to adopt the same
rigidly dualist position that it displays formally with regard to custom: an
international treaty will have no direct effect unless incorporated into
municipal law via a legislative act.421 Though the Constitution provides
no direct support for this notion, some commentators point to Chapter 10,
Article 3 of the Instrument of Government as indirectly confirming it. It
provides:
The Riksdag’s approval is required before the Government concludes an international
agreement which is binding upon the Realm:
1. if the agreement requires the amendment or abrogation of an act of law or the
enactment of a new act of law;
2. or if it otherwise concerns a matter to be decided by the Riksdag.
This attitude was confirmed by leading cases decided by three of the
highest courts in Sweden, the Supreme Court,422 the Supreme
Administrative Court,423 and the Labour Court.424 On the other hand
there are examples of Swedish courts interpreting domestic laws so as to
comply with unincorporated treaties in a manner that would appear to
conflict with reasonably clear statutory wording.425
The legislative act itself that incorporates the treaties will depend largely
on the form of the treaty in question. If it is capable of being applied by
the Swedish courts, its text will usually be translated into Swedish and
incorporated by reference. Where it is not, transformation and elaboration
via statute will need to occur.426Where the (p. 103) Swedish statute does
not fully reflect the wording of the original treaty, the court is expected to
attempt a reconciliation; if none is possible, the statute prevail.427
(C) Non-Justiciability in the European Tradition
As with customary and conventional international law, the question of
judicial abstention or intervention in state affairs is the result of choices
internal to each legal system.428
(i) France
In France, this is represented by the doctrine of acte de gouvernement,
which will exclude judicial review of an executive decision where it either
(a) ‘project[s] onto the international plane the manifestation of the wishes
of the French authorities and consequently only [has] meaning in the
context of the relations between the French State and an international
organization or another State’; or (b) ‘exclusively [involves] an
assessment of the appropriateness of action from the standpoint of
foreign policy’.429 The Conseil d’État has confirmed that the question is
one of the competence of French tribunals and not the admissibility of the
claim.430 The doctrine has been applied, inter alia,431 to the exercise of
government powers to protect French nationals abroad,432the decision
whether or not to publish an international agreement,433 an alleged
omission in the conduct of relations with a foreign government,434 the
vote of a Minister in the Council of the European Community,435 the
establishment of an international maritime exclusion zone,436 a refusal to
enter into international negotiations with a foreign state or institute
proceedings before the International Court,437 the suspension of an
international agreement,438 and the suspension of scientific co-operation
with Iraq following the invasion of Kuwait.439 It was applied to the
decisions to deploy French
References
(p. 104) troops against Yugoslavia during the Kosovo War440 and to allow
US/UK aircraft to access French airspace during the Second Gulf War.441
The French judiciary will only consider an acte de gouvernement where it
has a definable international flavour; where the act is based primarily on
considerations relating to public policy or the national public services,
whether carried out at home or abroad, it will be justiciable.442 The
withdrawal of a French co-operation assistant serving abroad was
considered not so much a sovereign act as an act of management
carried out by the national public services responsible for cooperation.443 The same may be said of the allegedly inadequate
protection of foreign diplomats by French police,444 and the destruction
by the French Navy of a ship abandoned on the high seas.445
The doctrine of actedegouvernement has been the subject of erosion,
however, under what Advocate-General Darmon referred to as the theory
of ‘detachable acts’.446 On this approach, an act that might prima facie
appear non-justiciable may nevertheless be subject to the courts’
jurisdiction ‘if the French authorities have some independent choice with
regard to the procedure by which they perform their international
obligations and can themselves take the initiative as regards the means
by which they comply with those obligations’.447Decisions as to
extradition have proved particularly susceptible to such separation, as
seen in United Kingdom and Governor of Hong Kong. There, the British
government applied to the Conseil d’État for the review of a decision by
the French government not to extradite a Malaysian businessman
accused of serious fraud and financial mismanagement in Hong
Kong. Commissaire du Gouvernement Vigouroux argued that judicial
review of extradition matters would not impede the government’s freedom
of action in foreign policy. Accordingly, a decision rejecting extradition
was severable from the wider field of bilateral diplomatic relations and
judicial review was permitted.448
(ii) Germany
The German constitutional model is characterized by a strong system of
judicial review that virtually eliminates non-justiciability.449 Judicial review
of executive acts is not an implied right but a deliberate choice in a
system that establishes a court for the purpose of assessing the
conformity of executive acts and legislation with the Basic Law. Article
19(4) of the Basic Law provides that ‘Should any person’s right be
violated
References
(p. 105) by public authority, recourse to the court shall be open to him’.
Article 93(1)(1) further permits suits to be launched between different
organs of the federal government on questions of competence.450 The
Federal Constitutional Court was created to sit outside the ‘ordinary’ court
system and hear those matters associated with the enforcement of the
Basic Law.451
Although prima facie applying only to those basic rights contained within
the Basic Law itself (which, it must be remembered, are to be interpreted
in accordance with international law, itself superior to domestic
statute)452this limitation has been eroded through the breadth of the
rights in question,453 and subsequent judicial expansion through
interpretation. An affected citizen may invoke the interests of third
parties454 and questions of federalism and the separation of powers in
bringing a suit.455 Even more remarkably, Article 93(1)(2) permits onethird of the members of the Bundestag to file an action directly in the
Federal Constitutional Court challenging the constitutionality of a piece of
legislation; thus, when a divisive piece of legislation is passed by a
narrow majority, it can reasonably be expected to get a second airing
before the Court.456
Within the German constitutional system, there is no tradition of
automatic judicial deference to the executive in regard to foreign
policy.457 This potentially extends to questions surrounding the
deployment of Germany’s armed forces.458 When the German
government sought to join NATO forces charged with enforcing
resolutions of the Security Council in Yugoslavia, this was challenged
in International Military Operations.459 The Federal Constitutional Court
held that such action was permissible so long as it remained within the
framework of a ‘system of mutual collective security’.460 The power of
review further extends to the treaty-making power of the German state,
with the court intervening to assess and provide texture to both the Basic
Treaty461 between the (p. 106) German Democratic Republic
(GDR)462 and the Federal Republic of Germany (FRG) and the
Maastricht Treaty.463
Confusingly, however, some hints of an aversion to ‘political questions’
may on occasion be detected.464 In Cruise Missiles(Danger to Life),465 a
number of FRG citizens launched a constitutional challenge against the
deployment in the FRG of American medium-range missiles with nuclear
warheads in accordance with a NATO resolution. The applicants alleged
that the missiles violated the right to life and physical integrity under
Article 2(2) of the Basic Law, and further argued that the deployment
infringed Article 25 since it violated a general rule of international law
prohibiting such weapons. The Court refused to hear the application for
three reasons: (a) there was no data available by which the Court could
ascertain the alleged risk to life and health and, in any case, the
materialization of such a risk was wholly dependent on the future political
and military decisions of the USSR;466 (b) any infringement of the Basic
Law on which such a claim could be based could only be actionable
against the German state, with the direct threat here arising from the
nuclear potential of the USSR;467 and (c) it was the responsibility of the
government to decide upon the foreign and defence policy of FRG, not
the Court.468
According to Currie, in refusing to hear such matters the Court is doing
nothing more than concluding that the Basic Law commits a certain issue
to the discretion or determination of another branch of government.469 A
similar solution was hinted at in Chemical Weapons, linking the
availability of judicial review to the particular character of national
defence. The Court held that:
in order to comply with the requirements for the admissibility of constitutional complaints
based on an alleged violation of the duty of protection enshrined as a basic right in
Article 2(2)…the complainant must be able to prove conclusively that the public
authorities either totally failed to take precautionary measures or that the regulations
enacted and the measures actually taken were totally inappropriate or wholly insufficient
to achieve the aim of providing protection…470
In such cases the Court has not excluded judicial review entirely, but
imposed an evidentiary hurdle commensurate with the gravity of the
issues under consideration. Formally, it remains the case that Germany
has not yet developed a doctrine of non-justiciability.
References
(p. 107) (iii) Italy
As with the French system, Italian doctrine provides that acts of
government (teoria dell’attodo governo) are non-justiciable, basing its
position on the notion that the exercise of government discretion is
necessary in order to preserve certain constitutional or political
imperatives.471 Here, the point of reference is the Constitution, which
reserves certain matters for the executive and legislature, most notably
the capacity of Parliament to declare a state of war and vest the
government with the necessary powers of prosecution.472Such acts, by
reason of their inherently discretionary character but also due to
separation of powers considerations, are non-justiciabl473
The leading decision is Marković, where the Corte di Cassazione ruled
on the liability of the Italian government in claims brought by Serbian
civilians whose relatives were killed during an aerial bombardment of
Belgrade by NATO forces in 1999. Liability was premised on two
alternative bases: that Italy was jointly liable for the airstrike as a NATO
member; or the bombardment was carried out from bases located on
Italian soil. In a concise judgment, the Court held that the acts in question
were non-justiciable:
The selection of a method for conducting hostilities is amongst those acts which are
performed by the Government. All such acts are expressions of a political function which,
under the Constitution, is envisaged as emanating from a constitutional organ. The
nature of this function is that it is impossible to protect individual interest from its effects
on the basis that those acts falling within its scope are incapable of precise definition…
With regard to acts of this type, no court has the power to review the manner in which
the function is exercised.474
Thus, the Italian approach sits within the same tradition as that of France,
the UK, and the US.475
(iv) Russian Federation
The Russian system for judicial review is similar to its German
counterpart. Article 46(2) of the Constitution provides that ‘[d]ecisions and
actions (or inaction) of state bodies, bodies of local self-government,
public associations and officials may be
References
(p. 108) appealed in a court of law’. Courts tend to see any attempt to
transgress this right as unconstitutional.476 Moreover, administrative
complaints are generally not subject to the defence of sovereign
immunity.477 A wider jurisdiction is posited by the Article 125 with respect
to the Constitutional Court;478 though its capacity to hear certain disputes
is dependent on referral of the matter by a relevant government
body,479 it retains the general jurisdiction to hear complaints regarding
the violation of the constitutional rights and freedoms of citizens on
petition.480
The landscape of judicial review and non-justiciability in Russia is
complicated by the fact that the current Constitutional Court is Russia’s
second since the break-up of the Soviet Union. The first was established
in 1991, with its jurisdiction based in part on the 1978 Constitution of the
Soviet Union combined with the 1991 Law on the Constitutional Court of
the Russian Soviet Federative Socialist Republic, which did not exclude
the court from involvement in political affairs.481 The result was a highly
destructive confrontation between the Court and President Yeltsin in the
context of the 1993 Russian constitutional crisis. This ended with the
introduction of the current 1993 Constitution and the 1994 Law on the
Constitutional Court, Article 3 of which states that the court ‘shall rule
exclusively on questions of law’. The Court lost the right to examine
cases ex proprio motu as well as its competence over non-normative acts
of the president and other executive officials and agencies.482
Despite the imperative contained in Article 3 of the 1994 Law on the
Constitutional Court, the Court has not refrained from addressing issues
which would ordinarily be thought political in nature. For example in
the Chechnya case,483 the Court was asked by a minority in the Russian
Parliament pursuant to Article 125(2) of the Constitution to assess the
constitutionality of a decision by President Yeltsin to order troops to
Chechnya. Although it refused to consider ‘the political expediency of the
[Government’s] decisions or the validity of the actions carried out on that
basis’, the Court nonetheless considered itself competent to rule on the
legality of the initial orders, which were upheld.484
It is to be remembered that Article 3 of the 1994 Law on the
Constitutional Court is a jurisdictional limitation applicable to that court
alone; there is no evidence of a
References
(p. 109) similar doctrine developing at other levels of the Russian judicial
hierarchy, though its theory and practice remain relatively inchoate.
(v) The Netherlands
Judicial review in the Netherlands bears a passing similarity to German
position, but is at the same time quite different owing first to the unusual
position that treaty law holds within the jurisdiction, and secondly to the
strictures of the Dutch Constitution. Article 120 of the Constitution
provides that the ‘constitutionality of Acts of Parliament and treaties shall
not be reviewed by the courts’.485 This automatically places a
jurisdictional limitation—unique amongst liberal democracies—on judicial
review that may only be resolved by the fact that Dutch law does not
consider treaties to be ‘constitutional’ in nature, opening the possibility of
assessing municipal statutes according to the yardstick of international
conventions signed and ratified by the Netherlands.486
Dutch law does not know of a political question doctrine, in the sense that
those issues intrinsically connected with the legislature are automatically
removed from the competence of the courts.487 Rather, it has in recent
times begun to demonstrate—on a discretionary basis—an extreme
deference towards the exclusive competence of the legislature with
respect to political matters. This first arose in Association of Lawyers for
Peace which again considered a pre-emptive application by a community
group seeking a declaration that the deployment of nuclear weapons by
the Netherlands would be illegal. Dismissing the application the Court
held that:
[T]he applications instituted in the present action relate to questions concerning the
policy of the State in the area of foreign policy and defence, which…will depend to a
large extent on political considerations…This means that the civil courts should observe
a large degree of restraint in assessing applications such as the one instituted in the
present case, which are designed to designate in advance as unlawful…acts to
implement political decisions in the area of foreign policy and defence…It is not, after all,
the function of the civil courts to make political decisions of this nature.488
This doctrine of judicial restraint in matters of foreign policy and defence
has been applied repeatedly since,489most notably in dismissing an
application to have President Bush arrested for war crimes on an official
visit to the Netherlands,490 and (p. 110) in yet another pre-emptive
application to prevent the deployment of Dutch forces in any attempt to
support retributive measures by the US in the wake of the 9/11 terrorist
attacks without the authorization of force by the Security Council.491
(vi) Sweden
In Sweden, judicial review of administrative and legislative action is a
comparative latecomer owing to a strong belief in democratic sovereignty.
Indeed, the institution has, until recently, been seen as ‘undemocratic and
not a natural part of a living, vital democracy’.492 Nonetheless, a right to
judicial review was accepted by the Supreme Court in 1964,493 and was
introduced to the Constitution in 1979, in the form of review for ‘manifest’
error.494 Thus, non-justiciability was not determined by the sub-jectmatter but by the magnitude of the perceived inconsistency.495
This limitation on review was in 2010 replaced with a vaguer requirement
that ‘In the case of review of an act of law…particular attention must be
paid to the fact that the Riksdag is the foremost representative of the
people and that fundamental law takes precedence over other law’. The
wider effect of this amendment on Swedish jurisprudence is not yet
apparent.
5. Conclusions
On the whole question of the relation between national and international
law theoretical constructions have done much to obscure realities. If one
had to choose between the theories considered earlier in this chapter,
then the views of Fitzmaurice and Rousseau might be preferred as
coming closer to the truth. Each system is supreme in its own field;
neither has hegemony over the other. And yet any generalities offered
can only provide a background to the complex relations between the
national and international systems. Three factors operate. The first is
organizational: to what extent are the organs of states ready to apply
rules of international law internally and externally? 496
(p. 111) This seems to suggest a pluralist vision, in which it falls to each
system to regulate its own relationship with other legal systems. The
second factor is the difficulty of proving the existence of particular rules of
international law. In case of difficulty national courts usually rely on
advice from the executive or existing precedents, and the result may not
accord with an objective appreciation of the law. Thirdly, courts, national
and international, will often be concerned with the question of which is
the appropriate system to apply to particular issues arising. The question
of appropriateness emphasizes the distinction between organization, that
is, the character of the jurisdiction as ‘national’ or ‘international’, and the
character of the rules of both systems as flexible instruments for dealing
with disputes and regulating non-contentious matters. An international
court may find it necessary to apply rules of national law, while bodies,
such as the United States Foreign Claims Settlement Commission, which
are national in terms of organization and competence may find it
appropriate, and be authorized, to apply rules of international law on a
large scale. When a national court applies a rule of international law
because it is appropriate, it is pointless to ask if the rule applied has been
‘transformed’, except insofar as ‘transformation’ describes a process
required by a particular national system before certain organs are
permitted, or are willing, to apply rules of international law.
Footnotes:
1
Triepel (1923) 1 Hague Recueil 77; Kelsen, Principles of International
Law (2nd edn, 1967) 290, 551; Lauterpacht, 1 International Law:
Collected Papers (1970) 151; Santulli, Le statut international de l’ordre
juridique étatique (2001); Nijman & Nollkaemper (eds), New Perspectives
on the Divide Between National and International Law (2007); cf Denza,
in Evans (ed), International Law (3rd edn, 2010) 411, 417–18.
2
Terminology is not consistent; the terms ‘national’, ‘municipal’,
‘domestic’, and ‘internal’ are all used to refer to the legal order of or within
the state, although the terms have slightly different connotations. Here
the term used is ‘national’, but it includes local or regional as well as
central laws and institutions.
3
4
Gaja, in Nijman & Nollkaemper (2007) 52.
4
Lauterpacht, International Law and Human Rights (1950) 70.
5
1 Oppenheim (8th edn, 1955) 38: ‘…it is only by reference to a higher
legal rule in relation to which they are all equal, that the equality and
independence of a number of sovereign States can be conceived. Failing
that superior legal order, the science of law would be confronted with the
spectacle of some sixty sovereign States, each claiming to be the
absolutely highest and underived authority’.
6
Kelsen, General Theory of Law and State (1945) 363; Kelsen (2nd
edn, 1967) 553. For views related to but not identical with those of
Kelsen: Verdross (1927) 16 Hague Recueil 247, 287; Kunz (1924)
10 GST 115; Starke (1936) 17 BY 661. On Kelsen: Kammerhofer (2009)
22 LJIL 225; von Bernstorff, The Public International Law Theory of Hans
Kelsen (2010); Kammerhofer, Uncertainty in International Law (2011);
Kammerhofer, in Orakhelashvili (ed), Research Handbook on the History
and Theory of International Law (2011) 143.
7
Kelsen (2nd edn, 1967) 564. This was Kelsen’s second attempt at the
basic norm; the first was pacta sunt servanda (Kelsen, Das Problem der
Souveränität und die Theorie des Völkerrechts (2nd edn, 1928) 217),
which was later subsumed within the Grundnorm: Kelsen, Reine
Rechtslehre (1934) 130. Further: Koskenniemi, The Gentle Civilizer of
Nations (2001) ch 3; Koskenniemi, From Apology to Utopia (2nd edn,
2005) 226–40.
8
Kelsen (1945) 367; Kelsen (2nd edn, 1967) 562.
9
Kelsen (1945) 363; Kelsen (2nd edn, 1967) 553. For criticism of
Kelsen’s theory of the unity of all law: Hart, Essays in Jurisprudence and
Philosophy (1983) 309.
10
Kelsen (2nd edn, 1967) 559.
11
Ibid, 564.
12
Ibid, 580.
13
Ibid, 587–8.
14
Fitzmaurice (1957) 92 Hague Recueil 1, 68.
15
15
Ibid, 79. Anzilotti, 1 Cours de droit international (1929) 57, puts
forward this view, but is oft en classified as a dualist.
16
Rousseau (1958) 93 Hague Recueil 369, 473. Rousseau asserts the
primacy of international law—but by this means primacy in its own field.
17
To talk simply of dualism is to imply that national legal systems all
have the same features. Why should this be? The US is not the Federal
Republic of Germany; their relation is international not constitutional, but
international law holds them apart; it does not unify them: e.g. Cohen, in
Besson & Tasioulas (eds), The Philosophy of International Law (2010) ch
12. For EU law, which unifies to a degree: Slaughter & Burke-White, in
Nijman & Nollkaemper (2007) 110.
18
Dupuy, in Crawford, Pellet & Olleson (eds), The Law of International
Responsibility (2010) 173; Denza, in Evans (3rd edn, 2010) 411, 412–17;
Lauterpacht, Development (1958) 262, 314, 332; Fitzmaurice (1957) 92
Hague Recueil 1, 85.
19
VCLT, 22 May 1969, 1155 UNTS 331, Art 27, referring to justification
for failure to perform a treaty. Cf VCLT, Art 46, permitting a state to argue
the invalidation of consent by reason of the violation of its internal law
where the violation was ‘manifest and concerned a rule of its internal law
of fundamental importance’. Further: chapter 16.
20
Appended to GA Res 56/83, 12 December 2001. Also: Draft
Declaration on Rights and Duties of States, GA Res 375(IV), 6 December
1949, Art 13.
21
Shufeldt (1920) 2 RIAA 1081, 1098; Norwegian Shipowners (1922) 1
RIAA 309, 331.
22
SS Wimbledon (1923) PCIJ Ser A No 1, 29; Jurisdiction of the Courts
of Danzig (1928) PCIJ Ser B No 15, 26; Free Zones of Upper Savoy and
the District of Gex (1930) PCIJ Ser A No 24, 12.
23
The leading cases are Fisheries (UK v Norway), ICJ Reports 1951 p
116, 132; Applicability of the Obligation to Arbitrate under Section 21 of
the United Nations Headquarters Agreement of 26 June 1947, ICJ
Reports 1988 p 12, 34; Elettronica Sicula SpA (ELSI) (US v Italy), ICJ
Reports 1989 p 15, 51, 74; Avena and Other Mexican Nationals (Mexico
v US), ICJ Reports 2004 p 12, 65.
24
24
Moore, 1 Int Arb 653.
25
Free Zones of Upper Savoy and the District of Gex (1932) PCIJ Ser
A/B No 46, 96, 167. Also: Greco-Bulgarian Communities (1930) PCIJ Ser
B No 17, 32.
26
Treatment of Polish Nationals in the Danzig Territory (1932) PCIJ Ser
A/B No 44, 24. Also: Georges Pinson (France) v United Mexican
States (1928) 5 RIAA 327.
27
Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No 10,
20. The principle applies to both unitary and federal states.
28
McNair, Treaties (1961) 100. Cf Fitzmaurice (1957) 92
Hague Recueil 1, 89.
29
(1926) PCIJ Ser A No 7, 19.
30
India—Patents, WTO Doc WT/DS50/AB/R, 15 December 1997, §65.
31
Jenks, The Prospects of International Adjudication (1964) 552, 548.
32
Brazilian Loans (1929) PCIJ Ser A No 21, 124–5; Nottebohm
(Liechtenstein v Guatemala), Second Phase, ICJ Reports 1955 p 4, 35
(Judge Read, diss), 51 (Judge Guggenheim, diss); United States—
Carbon Steel, WTO Doc WT/DS213/AB/R, 28 November 2002, §157.
33
Serbian Loans (1929) PCIJ Ser A No 20, 46; Brazilian Loans (1929)
PCIJ Ser A No 21, 125: ‘It is French legislation, as applied in France,
which really constitutes French law.’
34
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of
the Congo), Judgment of 30 November 2010, §70. Also: PanevezysSaldutiskis Railway (1939) PCIJ Ser A/B No 76, 19.
35
Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116, 181 (Judge
McNair); Certain Questions of Mutual Assistance in Criminal Matters
(France v Djibouti), ICJ Reports 2008 p 177, 230.
36
Diallo, Judgment of 30 November 2010, §70. Also: Fraport AG
Frankfurt Airport Services Worldwide v Philippines, 23 December 2010,
§§236, 242, available at www.italaw.com.
37
Interpretation of the Statute of the Memel Territory (1932) PCIJ Ser
A/B No 49, 294, 336; International Responsibility for the Promulgation of
Laws in Violation of the Convention (Article 1 and 2 of the American
Convention on Human Rights) (1994) 116 ILR 320, 332.
38
The PCIJ in Upper Silesia was not unequivocal in its remark that the
Court was ‘not called upon to interpret the Polish law as such’: (1926)
PCIJ Ser A, No 7, 19. Also: Nottebohm, Second Phase, ICJ Reports
1955 p 4, 36 (Judge Read, diss), 52 (Judge Guggenheim,
diss); Application ofthe Convention of 1902governing the Guardianship of
Infants (Netherlands v Sweden), ICJ Reports 1958 p 55, 108 (Judge
Moreno Quintana).
39
Guardianship of Infants, ICJ Reports 1958 p 55, 91 (Judge
Lauterpacht); Southern Pacific Properties (Middle East) Limited v Arab
Republic of Egypt (1988) 3 ICSID Reports 131, 141.
40
Lighthouses in Crete and Samos (1934) PCIJ Ser A/B No 62, 19.
41
Serbian Loans (1929) PCIJ Ser A No 20; Brazilian Loans (1929) PCIJ
Ser A No 21.
42
Marek (1962) 66 RGDIP 260; Stoll, L’application et l’interprétation du
droit interne par les juridictions internationales (1962); Jenks (1964) 547;
Santulli, Le statut international de l’ordre juridique étatique (2001).
43
Upper Silesia (1926) PCIJ Ser A No 7.
44
Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116, 176 (Judge
McNair, diss).
45
Nottebohm, Second Phase, ICJ Reports 1955 p 4.
46
Guardianship of Infants, ICJ Reports 1958 p 55.
47
Barcelona Traction, Light and Power Company Limited (Belgium v
Spain), Second Phase, ICJ Reports 1970 p 3.
48
Diallo, Judgment of 30 November 2010.
49
E.g. the treaty considered in Tokios Tokelés v Ukraine (2004) 11
ICSID Reports 313.
50
Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No 10,
20.
51
51
E.g. Convention on the Settlement of Investment Disputes between
States and Nationals of Other States, 18 March 1965, 575 UNTS 159, Art
25(1), (2) (ICSID Convention).
52
Jurisdiction of the Courts of Danzig (1928) PCIJ Ser B No 15; Statute
of the Memel Territory (1932) PCIJ Ser A/B No 49.
53
German Settlers in Poland (1923) PCIJ Ser B No 6; Minority Schools
in Albania (1935) PCIJ Ser A/B No 64, 4. The Permanent Court did not
regard formal equality as the only criterion of equal treatment.
Further: Fitzmaurice (1959) 35 BY 183, 191.
54
A typical formulation of such a clause is found in Art 7(2) of the
German Model BIT (2008): ‘Each Contracting State shall fulfil any other
obligations it may have entered into with regard to investments in its
territory by investors of the other Contracting State.’
55
Crawford (2008) 24 Arb Int 351, 366. On the history of umbrella
clauses: Sinclair (2004) 20 Arb Int 411.
56
SGS Société Générale de Surveillance SA v Philippines (2003) 129
ILR 444, 490; CMS Gas Transmission Company v Argentine Republic, 25
September 2007, §§89–100; Duke Energy Electroquil
Partners&Electroquil SA v Republic of Ecuador, 18 August 2008, §§317–
25, both available at www.italaw.com. Outside the field of umbrella
clauses, Sandline International v Papua New Guinea (1998) 117 ILR 552,
560–3, in holding a domestic contract internationalized was wrongly
decided; also Ioannis Kardassopoulos v Georgia, 6 July 2007, §§171–94,
available at www.italaw.com, which was real ly a case of estoppel.
57
Serbian Loans (1929) PCIJ Ser A No 20. Also: Brazilian Loans (1929)
PCIJ Ser A No 21; Consistency of Certain Danzig Legislative Decrees
with the Constitution of the Free City (1935) PCIJ Ser A/B No 65; Illinois
Central Railroad Company (USA) v United Mexican States (1926) 4 RIAA
21; Norwegian Shipowners (1922) 1 RIAA 309, 330.
58
59
Serbian Loans (1929) PCIJ Ser A No 20, 19.
Generally: Shelton (ed), International Law and Domestic Legal
Systems (2011). Also: Denza, in Evans (3rd edn, 2010) 411, 417 –24.
60
60
Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB
529, 569 (Stephenson LJ).
61
Fentiman, International Commercial Litigation (2010) ch 6.
62
E.g. Barbie, 20 December 1985, JCP 1986 II 20655 (1988) 100 ILR
330. Likewise, under US judicial practice, great weight is given to
opinions on international law given by the executive by way of amicus
curiae briefs, interventions as party or non-party, or ‘executive
suggestions’: Denza, in Evans (3rd edn, 2010) 411, 422.
63
They may, however, provide structure and focus to more direct
sources (i.e. the decisions of international courts and tribunals):
Fatima, Using International Law in Domestic Courts (2005) 50–1.
Further: R v Keyn (1876) 2 Ex D 63, 202 (Cockburn J); West Rand
Central Gold Mining Co v R [1905] 2 KB 391, 407 (Lord Alverstone
CJ); R (European Roma Rights Centre) v Immigration Officer at Prague
Airport [2005] 2 AC 1, 38 (Lord Bingham).
64
R v Keyn (1876) 2 Ex D 63; In re Piracy Jure Gentium [1934] AC
586; State (Duggan)v Tapley [1952] IR 62; Haw Pia v China Banking
Corp (1951) 18 ILR 642; Lauritzen v Government of Chile (1956) 23 ILR
708.
65
E.g. R (on the application of Al-Jedda) (FC) v Secretary of State for
Defence [2008] 1 AC 332.
66
Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya
(Kingdom of Saudi Arabia) [2006] UKHL 26, §12 (Lord Bingham).
67
Brölmann, in Nijman & Nollkaemper (2007) 84.
68
Shelton, in Shelton (2011) 1, 6–7.
69
Ibid, 7.
70
Thus, in monist systems the parliament will usually play a much more
active role in the debate prior to adoption of the treaty: e.g. Constitution
of the Netherlands, Arts 91, 94; Constitution of the Russian Federation,
Art 15.3. Further: Shelton, in Shelton (2011) 1, 6.
71
Shelton, in Shelton (2011) 1, 6–7. E.g. Minister for Immigration and
Ethnic Affairs v Teoh (1995) 104 ILR 460, 471 (Mason CJ & Deane J).
72
72
E.g. Lord Advocate’s Reference No 1, 2000 [2000] SLT 507, where a
Scottish court had to determine the legality of the UK’s Trident nuclear
missile programme, despite the fact that the International Court had
earlier avoided answering the question of whether the mere holding of
nuclear weapons was in breach of international law: Legality of the
Threat or Force of Nuclear Weapons, ICJ Reports 1996 p 226.
Further: Neff (2002) 51 ICLQ 171.
73
E.g. Nulyarimma v Thompson (1999) 96 FCR 153; Rasul v Bush 542
US 466 (2004); Ferrini v Federal Republic of Germany (2004) 128 ILR
658; R v Jones (Margaret) [2007] 1 AC 136. Also: Guilfoyle (2001)
29 FLR 1. On state immunity: chapter 22.
74
28 USC §1350 (initially enacted in 1789). Also: the Torture Victims
Protection Act 1991, 106 Stat 73. Further: chapter 21.
75
Filartiga v Pena-Irala, 630 F.2d 876 (2nd Cir, 1980); Sosa v AlvarezMachain, 542 US 692 (2004). Further: Roth (2004) 98 AJIL 798.
76
Paust (1988) 82 AJIL 760; Vásquez (1995) 89 AJIL 685; Crootof
(2011) 120 Yale LJ 100.
77
E.g. Arantzazu Mendi [1939] AC 256; Gur Corporation v Trust Bank of
Africa Ltd [1987] QB 599; GITSI [1990] Rec Lebon 171, 111 ILR
499; Agyepong [1994] Rec Lebon 523, 111 ILR 531; British Arab
Commercial Bank plc v National Transitional Council of the State of
Libya [2011] EWHC 2274.
78
ECHR, 4 November 1950, 213 UNTS 222, Art 6.
79
Beaumartin v France (1994) 107 ILR 50, 56.
80
Further: Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights, ICJ Reports
1999 p 62, 87–8.
81
Denza, in Evans (3rd edn, 2010) 411, 435.
82
Shelton, in Shelton (2011) 1, 20–2.
83
E.g. the adoption of legislation based on international human rights
standards by the Australian Capital Territory and the state of Victoria,
where no comparable bill of rights exists on a constitutional or federal
level: Human Rights Act 2004 (ACT); Charter of Human Rights and
Responsibilities Act 2006 (Vic); Momcilovic v R [2011] HCA 34.
84
Reinisch (2004) 3 LPICT 37; Shany, Regulating Jurisdictional
Relations Between National and International Courts (2007).
85
Cheng, General Principles of International Law (1953) 336; Reinisch
(2004) 3 LPICT 37, 44; Shany (2007) 159; Schreuer, Malintoppi, Reinisch
& Sinclair, The ICSID Convention (2nd edn, 2009) 609.
Also: Interpretation of Judgments No 7 and 8 (Factory at
Chorzów) (1927) PCIJ Ser A No 13, 27 (Judge Anzilotti, diss); Trail
Smelter (1938) 3 RIAA 1905, 1950; Waste Management Inc v United
Mexican States (2002) 41 ILM 1315, 1322; Effects of Awards of
Compensation made by the UN Administrative Tribunal, ICJ Reports
1954 p 47, 53; Amco Asia Corp v Indonesia (1988) 1 ICSID Reports 543,
549; Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Serbia and
Montenegro), ICJ Reports 2007 p 43, 90–1. Some scholars go so far as
to elevate it to the status of custom: Reinisch (2004) 3 LPICT 37, 44;
Shany (2007) 159–60.
86
Upper Silesia (1925) PCIJ Ser A No 6, 20; Amco Asia Corp v
Indonesia (1984) 89 ILR 366, 459.
87
Cf Georges Pinson (France) v United Mexican States (1928) 5 RIAA
327, 348 (the commission held that it would give great weight to factual
findings made by the national claims commission). Under NAFTA, 17
December 1992, 32 ILM 289. Art 1131(2), decisions of the Free Trade
Commission (an intergovernmental executive body) are binding on
tribunals: e.g. Mondev International Ltd v United States of
America (2002) 6 ICSID Reports 181, 223–4.
88
ECHR, Art 26.
89
Amco Asia Corp v Republic of Indonesia (1984) 89 ILR 366, 459.
90
E.g. Occidental Exploration and Production Company v Republic of
Ecuador (2004) 138 ILR 35, 48–53.
91
Schreuer, Decisions of International Institutions before Domestic
Courts (1981); Skubiszewski (1968–69) 2 Pol YIL 80; Shany (2007) 161.
Also: Diggs v Richardson, 555 F.2d 848 (DC Cir, 1976) (Security Council
resolution non-self-executing); Bradley v Commonwealth of
Australia(1973) 128 CLR 557; Medellin v Dretke, 544 US 660 (2005).
92
E.g. Medellin v Texas, 552 US 491 (2008).
93
Socobelv Greek State (1951) 18 ILR 3; Committee of United States
Citizens Living in Nicaragua v Reagan, 859 F.2d 929 (DC Cir,
1988); Breard v Greene, 523 US 371 (1998), and generally
Schulte, Compliance with Decisions of the International Court of
Justice (2004) 77.
94
Messina v Petrococchino (1872) LR 4 PC 144; Dallal v Bank
Mellat [1986] 1 QB 441, 457 (Hobhouse J). For comment: Fox (1988)
37 ICLQ 1, 24; Crawford (1986) 57 BY 410.
95
E.g. Arbitration Act 1996 (UK) ss58, 66; 9 USC §13; International
Arbitration Act 1974 (Cth) ss16, 33; UNCITRAL Model Law on
International Commercial Arbitration 2006, Art 17H(1).
96
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, 10 June 1958, 330 UNTS 38, Art III.
97
ICSID Convention, Arts 53, 54.
98
The same may be said of its correlative in the criminal law, ne bis in
idem: van den Wyngaert & Stessens (1999) 48 ICLQ 779, 781–90.
99
E.g. United States v Lanza, 260 US 227 (1922); United States v
Wheeler, 435 US 313 (1978). Further: Shany (2007) 160.
100
On estoppel: Legal Status of Eastern Greenland (1933) PCIJ Series
A/B No 5. Cf Bowett (1957) 33 BY 176; Martin, L’estoppel en droit
international public (1979); Tams, in Crawford, Pellet & Olleson (2010)
1035, 1044–5, 1047–8. Also: the ILA committee reports on lis
pendens and res iudicata in international commercial arbitration: (2009)
25 Arb Int 35 (Interim Report); (2009) 25 Arb Int 67 (Final Report); (2009)
25 Arb Int 83 (Recommendations), and chapter 18.
101
Brownlie, Use of Force (1963) 185. Also: N v B (1957) 24 ILR 941; B
v T (1957) 24 ILR 962. On the special relationship between the Allied
military tribunals in occupied Germany and the IMT at Nuremberg: UN
War Crimes Commission, 15 Law Reports of Trials of War
Criminals (1949) 17.
102
102
Legal Consequences of the Construction of a Wallin the Occupied
Palestinian Territory, ICJ Reports 2004 p 136.
103
(2005) 129 ILR 241, 285, 298.
104
Westlake (1906) 22 LQR 14; Lauterpacht (1939) 25 GST 51; 1
Lauterpacht (1970) 154, 218; Crawford (1982) 76 PAS 232; Fatima
(2005) 403.
105
McNair, 3 Opinions Appendix II, and for a synopsis Crawford, in
Zimmermann & Beatson (eds), Jurists Uprooted (2004) 681.
106
Barbuit (1737) Cases t Talbot 281; Triquet v Bath (1764) 3 Burr 1478,
1481; Heathfield v Chilton (1767) 4 Burr 2015, 2016. Later: De Wütz v
Hendricks (1824) 2 Bing 314, 315; Emperor of Austria v Day (1861) 30 LJ
Ch 690, 702 (reversed on appeal on another point); R v Keyn (The
Franconia) (1876) 2 Ex D 63. Further: O’Keefe (2008) 79 BY 7, 12–23.
107
For an overview of the legal history: Baker, An Introduction to English
Legal History (4th edn, 2002) 117–54. On the rise and fall of the civilians:
Squibb, Doctors’ Commons (1977) 1–22, 102–9.
108
E.g. Blad v Bamfield (1674) 36 ER 992 (Ch); Duke of Brunswick v
King of Hanover (1848) 9 ER 993.
109
The term ‘English law’ has been used here for the sake of concision,
but the position in England broadly reflects that in other Commonwealth
countries: McNair, Treaties (1961) 81; Mann (1958–59) 44 GST 29;
Jacobs & Roberts (eds), The Effect of Treaties in Domestic
Law (1987); Gardiner (1995) 44 ICLQ 620; Fatima (2005); Sales &
Clement (2008) 124 LQR 388, 394–413; Aust, Modern Treaty Law and
Practice (2nd edn, 2007) 178; Neff, in Shelton (2011) 620, 621–6.
110
Sales & Clement (2008) 124 LQR 388, 399.
111
‘The bedrock of the British constitution’: R (Jackson) v Attorney
General [2006] 1 AC 262, 274 (Lord Bingham).
112
JH Rayner (Mincing Lane) Ltd v Department of Trade and
Industry [1990] 2 AC 418, 500. Further: The Parlement Belge [1880] 4
PD 129, 150; Post Office v Estuary Radio Ltd (1968) 2 QB 740, 753.
113
113
JH Rayner (Mincing Lane) Ltd v Department of Trade and
Industry [1990] 2 AC 418, 499–500 (Lord Oliver). Also: Rustomjee v
R [1876] 2 QB 69, 74 (Lord Coleridge); The Parlement Belge (1879) 4 PD
129, 150, 154–5 (Sir Robert Phillimore); Walker v Baird [1892] AC 491,
496–7 (Lord Herschell); Mortensen v Peters (1905–6) F (JC) 93, 100–
1; Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC
308 (PC), 324–5 (Viscount Simon LC); Pan-American World Airways Inc
v Department of Trade [1976] 1 Lloyd’s Rep 257, 260 (Lord Denning
MR), 261–2 (Scarman LJ); JH Rayner (Mincing Lane) Ltd v Department
of Trade and Industry [1989] Ch 72, 164 (Kerr LJ); In re M and H (Minors)
(Local Authority: Parental Rights) [1990] 1 AC 686, 721 (Lord
Brandon); R v Director of Public Prosecutions, ex parte Kebilene [2000] 2
AC 326, 340 (Lord Bingham MR); R v Lyons [2003] 1 AC 976, 987 (Lord
Bingham), 995 (Lord Hoffmann).
114
[2000] 2 AC 1 (PC), 23 (Lord Millett); ibid, 31–3 (Lords Hoffmann &
Goff, diss).
115
Fatima (2005) 283–8; Sands & Clement (2008) 124 LQR 388, 397–8.
116
R v Lyons [2003] 1 AC 976, 987 (Lord Bingham). Also: R v Secretary
of State for the Home Department, ex parte Brind [1991] 1 AC 696, 747
(Lord Bridge); Re McKerr [2004] 2 All ER 409.
117
[2003] 1 AC 976, 995.
118
In some cases, ratification may take place through the executive
order of a Minister who has previously been granted legislative
authorization to do so: Neff, in Shelton (2011) 620, 622.
119
Maclaine, Watson & Co Ltd v Department of Trade and
Industry [1990] 2 AC 418, 500 (Lord Oliver). Also: British Airways v Laker
Airways [1985] AC 58. The most obvious example of this is the Human
Rights Act 1998 (UK), which gives qualified domestic effect to the
European Convention on Human Rights.
120
Case C-87/75, Bresciani [1976] ECR 128; Case C104/81, Kupferberg (1982) 93 ILR 76. Also: the European Communities
Act 1972 (UK); Fatima (2005) ch 6.
121
IRC v Collco Dealings Ltd [1962] AC 1; Woodend (KV Ceylon)
Rubber and Tea Co v IRC [1971] AC 321.
122
122
E.g. Diplomatic Relations Act 1964 (UK), giving direct effect to certain
provisions of the VCDR, 18 April 1961, 500 UNTS 95.
123
E.g. In re Westinghouse [1978] AC 547 (regarding the Evidence
(Proceedings in other Jurisdictions) Act 1975, implementing the
unmentioned Hague Convention on the Taking of Evidence abroad in
Civil or Commercial Matters, 18 March 1970, 847 UNTS 241).
124
For a case of an unimplemented treaty giving rise to domestic rights
and obligations: Ecuador v Occidental Exploration & Production [2007]
EWCA Civ 656 (BIT arbitration). For BIT arbitration: chapters 28, 32.
125
Sinclair (1963) 12 ICLQ 508; Mann, Foreign Affairs in English
Courts (1986) 97; Fatima (2005) 65–186; Gardiner (1995) 44 ICLQ 620;
Gardiner, Treaty Interpretation (2008) 129; Neff, in Shelton (2011) 620.
126
On the primacy of the incorporating statute: Rey v Government of
Switzerland [1999] 1 AC 54 (PC), 63 (Lord Steyn); R v Secretary of State
for the Environment, Transport and the Regions, ex parte International Air
Transport Association [2000] 1 Lloyd’s Rep 242, 244 (Jowitt J); R (AlFawwaz) v Governor of Brixton Prison [2001] 1 AC 556, 606–7 (Lord
Rodger); R (Al-Skeini) v Secretary of State for Defence [2004] EWHC
2911 (Admin), §301 (Rix LJ).
127
Though the courts will, as a general rule, follow them: Neff, in Shelton
(2011) 620, 623. Further: R v Lyons [2003] 1 AC 976, 992.
128
Absent a direction as to interpretation in the enacting statute itself:
e.g. the Carriage by Air Act 1961, s4A. Cf Neff, in Shelton (2011) 620,
623.
129
22 May 1969, 1155 UNTS 331, Arts 31–2. Further: chapter 16.
130
E.g. Fothergill v Monarch Airlines Ltd [1981] AC 251, 282 (Lord
Diplock); Republic of Ecuador v Occidental Exploration &
Production[2007] EWCA Civ 656, §26; Czech Republic v European
Media Ventures SA [2007] EWHC 2851 (Comm), §51; R v Asfaw [2008]
1 AC 1061, 1114–15 (Lord Mance).
131
R v Immigration Appeal Tribunal, ex parte Shah [1999] 2 AC 629, 657
(Lord Hoffmann) (‘[a]s a general rule it is desirable that international
treaties should be interpreted by the courts of all states parties
uniformly’). Also: R v Asfaw [2008] 1 AC 1061, 1095 (Lord Hope).
132
Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771 (Lord
Diplock); R v Secretary of State for the Home Department, ex parte
Brind [1991] 1 AC 696, 748 (Lord Bridge); A v Secretary of State for the
Home Department (No 2) [2006] 2 AC 221, 255 (Lord Bingham); R (AlSkeini) v Secretary of State for Defence [2008] 1 AC 153, 192 (Lord
Rodger).
133
Salomon v Commissioners of Customs and Excise [1967] 2 QB 116,
143.
134
Fatima (2005) 296–316.
135
R (Hirst) v London Northern District Coroner [2005] 1 AC 400, 415–
16 (Lord Brown).
136
Salomon v Commissioners of Custom and Excise [1967] 2 QB 116,
144 (Diplock LJ); R v Secretary of State for the Home Department, ex
parte Brind [1991] 1 AC 696, 747–8 (Lord Bridge).
137
Mirza v Secretary of State for the Home Department [1996] Imm AR
314 (CA), 318 (Nourse LJ).
138
R v Secretary of State for the Home Department, ex parte
Brind [1991] 1 AC 696, 760 (Lord Ackner); Attorney-General v Associated
Newspapers [1994] 2 AC 238, 261–2 (Lord Lowry); JA Pye (Oxford) Ltd v
Graham [2003] 1 AC 419, 444 (Lord Browne-Wilkinson); R v
Lyons [2003] 1 AC 976, 987 (Lord Bingham).
139
R v Secretary of State for the Home Department, ex parte
Brind [1991] 1 AC 696, 747–8; cf ibid, 760 (Lord Ackner).
140
R v Lyons [2003] 1 AC 976, 992 (Lord Hoffmann). Also: AttorneyGeneral v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 283 (Lord
Goff).
141
A v Secretary of State for the Home Department (No 2) [2005] UKHL
71, §27 (Lord Bingham); Derbyshire County Council v Times
Newspapers [1992] QB 770, 812 (Balcombe LJ).
142
142
Malone v Metropolitan Police Commissioner (No 2) [1979] 1 Ch 344,
379 (Megarry V-C); noted Crawford (1979) 50 BY 217, 232.
143
Gleaves v Deakin [1980] AC 477.
144
Attorney-General v BBC [1981] AC 303.
145
Cheallv Association of Professional Executive Clerical and Computer
Staff [1983] 2 AC 180.
146
[1984] AC 580, 597 (Lord Diplock).
147
O’Keefe (2008) 79 BY 7; Sales & Clement (2008) 123 LQR 388,
413–20; Neff, in Shelton (2011) 620, 626–30. Also: Bingham, The Rule of
Law (2010) ch 10.
148
The antagonist of incorporation is the doctrine of ‘transformation’,
under which custom will only become part of the law of England once
codified in statute or in prior authoritative judicial decision—a doctrine of
stasis so far as the common law is concerned. English courts have
subscribed to an incorporationist approach since the 18th
century: O’Keefe (2008) 79 BY 7, 9–10; Lauterpacht (1939) 25 GST 51,
65, 75–6, 84, 86; Holdsworth, Essays in Law and History (1945) 266.
Also: R v Keyn (1876) 2 Ex D 63; West Rand Central Gold Mining Co v
R [1905] 2 KB 391; Mortensen v Peters (1906) 8 F (J) 93; Commercial
and Estates Co of Egypt v Board of Trade [1925] 1 KB 271, 295.
149
[1977] QB 529, 554; reiterated in R (Campaign for Nuclear
Disarmament) v Prime Minister of the United Kingdom (2002) 126 ILR
727, 738; and as a general principle underlying R (European Roma
Rights Centre) v Immigration Officer at Prague Airport [2005] 2 AC 1.
Cf R v Secretary of State, ex parte Thakrar [1974] QB 684, 701. Further:
Neff, in Shelton (2011) 620, 627.
150
I Congreso del Partido [1983] AC 244, 261–2. Also: R v Jones
(Margaret) [2007] 1 AC 136, 155 (Lord Bingham).
151
152
Brierly (1935) 51 LQR 24, 31.
Commercial and Estates Co of Egypt v Ball (1920) 36 Times LR
526; Commercial and Estates Co of Egypt v Board of Trade [1925] 1 KB
271. Further O’Keefe (2008) 79 BY 7, 24–9. Also: Rose Mary (1953) 20
ILR 316; O’Connell (1955) 4 ICLQ 267.
153
153
[2007] 1 AC 136, 155 (citations omitted).
154
E.g. R (Al-Haq) v Secretary of State for Foreign and Commonwealth
Affairs [2009] EWHC 1910, §40 (‘[t]he issue of the incorporation of
customary international law into domestic law is not susceptible to a
simple or general answer’). Also: O’Keefe (2008) 79 BY 7, 60 (‘[i]t pays to
emphasize at this point that the terms “incorporation” (as conceptualized
here), “transformation”, “adoption”, “translation”, “transposition” and the
like are no more than metaphors for what is actually going on, and like
many metaphors, they tend to obscure as much as they promise to
enlighten’).
155
R v Jones (Margaret) [2007] 1 AC 136.
156
O’Keefe (2008) 79 BY 7, 63–6.
157
R v Secretary of State for the Home Department, ex parte
Thakrar [1974] QB 684, 702 (Lord Denning MR), 708–9 (Orr LJ); JH
Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1989] Ch
72, 184–5 (Kerr LJ), cf 219–20 (Nourse LJ). Also: West Rand Central
Gold Mining Co v R [1905] 2 KB 391, 409–12 (Lord Alverstone CJ).
158
O’Keefe (2008) 79 BY 7, 64.
159
R (Al-Saadoon) v Secretary of State of Defence [2009] EWCA Civ 7,
§59 (Laws LJ), noted by O’Keefe (2009) 80 BY 451, 463. Similar
terminology may be found in A v Secretary of State for the Home
Department (No 2) [2006] 2 AC 221, 262 (Lord Bingham); R(Mohamed) v
Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC
2048 (Admin), §171.
160
Sosa v Alvarez-Machain, 542 US 692, 732 (2004), citing Hilao v In re
Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir, 1994).
161
Sales & Clement (2008) 124 LQR 388, 414.
162
[2007] 1 AC 136, 160, quoting O’Keefe (2001) 72 BY 293, 335.
163
Whilst the judiciary did have a common law power to create new
crimes, this was surrendered in Knuller (Publishing, Printing and
Promotions) Ltd v Director of Public Prosecutions [1973] AC 435.
164
164
[2007] 1 AC 136, 160–3. Another persuasive consideration for Lord
Bingham was the fact that the incorporation of aggression into the
common law would grant the courts the capacity to review the executive’s conduct of foreign affairs and the deployment of armed forces,
areas traditionally considered non-justiciable: ibid, 162–3.
165
Ibid, 170–1 (Lord Hoffmann); 179 (Lord Mance).
166
Generally: Goldsworthy, Parliamentary Sovereignty (2010).
167
[1938] 4 All ER 786, 790. Also: Mortensen v Peters (1906) 8 F (J) 93
(Court of Justiciary, Scotland); Polites v Commonwealth (1945) 70 CLR
60; Roussety v The Attorney General (1967) 44 ILR 108.
168
R v Secretary of State for the Home Department, ex parte
Thakrar [1974] QB 684, 708 (Orr LJ), 710 (Lawton LJ). The position was
affirmed by the Divisional Court: [1974] QB 684, 690–2 (Lord Widgery
CJ, with whom May and Bridge JJ agreed). Also: Viveash v
Becker (1814) 3 M & S 284, 298 (Lord Ellenborough CJ).
169
(1995) 103 ILR 420; upheld on appeal: (1997) 107 ILR 536.
Also: Jones v Saudi Arabia [2007] 1 AC 270 (similar reasoning, though
customary basis of proposed cause of action not explicit).
170
West Rand Central Gold Mining Co v R [1905] 2 KB 391, 408 (Lord
Alverstone CJ).
171
[1938] 4 All ER 786, 790
172
[2003] EWHC 2222 (QB). Also (far earlier) Emperor of Austria v Day
& Kossuth (1861) 3 De G F & J 217, 251 (Turner LJ).
173
[2003] EWHC 2222 (QB), §379.
174
Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1, 190 (Lord
Steyn), citing X (Minors) v Bedfordshire County Council [1995] 2 AC 633.
175
Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB
529, 554.
176
[1975] 3 All ER 961, 969–70; Ibid, 968 (Lawton LJ). Also: The
Uganda Co (Holdings) Ltd v Government of Uganda [1979] 1 Lloyd’s Rep
481, 487 (Donaldson J), criticized by Crawford (1980) 51 BY 303, 325–6.
177
178
Compania Naviera Vascongada v SS Christina [1938] AC 485.
178
Also: I Congreso del Partido [1978] 1 QB 500, 518 (Robert Goff J); R
v Metropolitan Stipendary Magistrate, ex parte Pinochet Ugarte (No
1) [2000] 1 AC 61, 77 (Lord Slynn); R v Jones (Margaret) [2005] QB 259,
273.
179
Fatima (2005) 273; Sales & Clement (2008) 124 ILQ 388, 395–6;
Masterman, The Separation of Powers in the Contemporary
Constitution (2011) 89–114.
180
Council of Civil Service Unions v Minister for the Civil Service [1985]
AC 374, 398 (Lord Fraser), 408 (Lord Scarman), 411 (Lord Diplock), 418
(Lord Roskill); R v Secretary of State for Foreign and Commonwealth
Affairs, ex parte Everett [1989] QB 811, 820 (Taylor LJ); R (Abassi) v
Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA
Civ 1598, §106 (Lord Phillips MR).
181
R (Abassi) v Secretary of State for Foreign and Commonwealth
Affairs [2002] EWCA Civ 1598, §107; cf Ibid, §§65, 67. Further: R (Al
Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008]
QB 289.
182
R (Gentle) v Prime Minister [2008] 1 AC 1356; cf [2006] EWCA Civ
1689. Further: Masterman (2011) 100–1.
183
[2007] 1 AC 136, 172; cf 163 (Lord Bingham).
184
Attorney-General v Nissan [1970] AC 179, 216 (Lord
Morris); Blackburn v Attorney-General [1971] 2 All ER 1380, 1382 (Lord
Denning MR); Ex parte Molyneaux [1986] 1 WLR 331, 335–6 (Taylor
J); Council of Civil Service Unions v Minister for the Civil Service [1985]
AC 374, 398 (Lord Fraser), 407 (Lord Scarman), 441 (Lord
Diplock); Lonrho Exports Ltd v Export Credits Guarantee
Department [1999] Ch 158, 179 (Lightman J); Lewis v Attorney-General
of Jamaica [2001] 2 AC 50 (PC), 77 (Lord Slynn).
185
[2005] 2 AC 68, 146. Also: Cook v Sprigg [1899] AC 572, 578; West
Rand Central Gold Mining Co Ltd v R [1905] 2 KB 391, 408–9 (Lord
Alverstone CJ); Republic of Italy v Hambros Bank [1950] Ch 314, 329
(Vaisey J); Malone v Metropolitan Police Commissioner [1979] Ch 344,
352–4 (Sir Robert Megarry V-C); R v Ministry of Defence, ex parte
Smith [1996] QB 517, 558 (Sir Thomas Bingham MR); R v Khan [1997]
AC 588, 581–2 (Lord Nolan); R (Campaign for Nuclear Disarmament) v
The Prime Minister [2002] EWHC 2777 (Admin), §§36–7.
186
Fatima (2005) 273–4.
187
R (Campaign for Nuclear Disarmament) v Prime Minister [2002]
EWHC 2777 (Admin), §§36–41 (Simon Brown LJ).
188
Occidental Exploration & Production Co v Ecuador [2006] QB 432,
457.
189
Ibid, 467.
190
R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332.
Further: Sands & Clement (2008) 124 LQR 388, 397.
191
[2008] 1 AC 332, 357 (Lord Rodger). Cf R (Quark Fishing Ltd) v
Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC
529, 544 (Lord Bingham), 545–6 (Lord Nicholls), 559 (Lord Hope).
192
Fatima (2005) 279, 281–2.
193
Human Rights Act 1998 (Designated Derogation) Order 2001 (UK).
194
[2005] 2 AC 68, 124. Also: R (European Roma Rights Centre) v
Immigration Officer at Prague Airport [2005] 2 AC 1, 45–7 (Lord Steyn),
64–5 (Baroness Hale); R (R) v Durham Constabulary [2005] 2 All ER
369, 385 (Lord Bingham), 392–4 (Baroness Hale).
195
Re McKerr [2004] 2 All ER 409, 425 (Lord Steyn), citing Hunt, Using
Human Rights Law in English Courts (1998) 26–8; Collins (2002)
51 ICLQ 485, 496–7. Contra: Sales & Clement (2008) 124 LQR 388,
398–400.
196
R v Secretary of State for the Home Department, ex parte
Launder [1997] 1 WLR 839, 867 (Lord Hope); R v DPP, ex parte
Kebilene [2000] 2 AC 326, 367 (Lord Steyn). But the treaty must be the
basis of the decision, not simply mentioned in passing by the decisionmaker: R(Corner House Research) v Director of the Serious Fraud
Office [2009] 1 AC 756, 851.
197
It is not to be confused with what is sometimes referred to as the
domestic act of state doctrine: cf Buron v Denman (1848) 2 Ex D 167.
Generally: Perreau-Saussine (2007) 78 BY 176.
198
198
Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888, 932–3. Also
the well-known earlier statement of Lord Halsbury LC in Cook v
Sprigg [1899] AC 572, 578 (‘It is a well-established principle of law that
the transactions of independent states between each other are governed
by laws other than those which the municipal courts administer’). For
criticism of the breadth of the dictum: Crawford (1982) 53 BY 253, 259–
68.
199
Fatima (2005) 385.
200
E.g. R v Bow Street Magistrate, ex parte Pinochet (No 1) [2000] 1 AC
61, 104 (Lord Lloyd, diss).
201
Ibid, 90.
202
Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002]
2 AC 883, 1108 (Lord Hope). Thus, all acts of state will trigger judicial
restraint, but not the reverse.
203
AM Luther v James Sagor& Co [1921] 3 KB 532, 548 (Warrington
LJ); Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888, 934 (Lord
Wilberforce); Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 &
5) [2002] 2 AC 883, 922 (Lord Hope); Jones v Saudi Arabia [2004] EWCA
Civ 1394, §10.
204
R v Bow Street Magistrate, ex parte Pinochet (No 1) [2000] 1 AC 61,
106 (Lord Nicholls); Banca Carige v Banco Nacional de Cuba [2001] 3 All
ER 923, §29 (Lightman J).
205
13 December 1957, 359 UNTS 273.
206
R v Secretary of State for the Home Department, ex parte
Johnson [1999] QB 1174, 1186 (Bell J). Also: Salaman v Secretary of
State in Council of India [1906] 1 KB 613.
207
R v Bow Street Magistrate, ex parte Pinochet (No 1) [2000] 1 AC 61,
106 (Lord Nicholls); R v Bow Street Magistrate, ex parte Pinochet (No
3) [2000] 1 AC 147, 269 (Lord Millett). On state immunity: chapter 22.
208
R v Bow Street Magistrate, ex parte Pinochet (No 1) [2000] 1 AC 61,
118 (Lord Steyn); cf Ibid, 103 (Lord Lloyd, diss). Also: Salaman v
Secretary of State in Council of India [1906] 1 KB 613, 639–40 (Fletcher
Moulton LJ).
209
209
Fatima (2005) 395–401.
210
[1976] AC 249, 265 (Lord Hodson), 277–8 (Lord Cross).
211
Ibid, 278, citing In re Claim by Helbert Wagg & Co Ltd [1956] Ch 323,
334 (Upjohn J).
212
[2002] 2 AC 833, 1102; O’Keefe (2002) 73 BY 400. Also: Jones v
Saudi Arabia [2005] EWCA 1394, §90 (Mance LJ); R (Abbasi) v
Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA
Civ 1598, §§57–67 (Lord Phillips MR).
213
Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 &
5) [2002] 2 AC 833, 1081.
214
Oppenheim v Cattermole [1976] AC 249, 265 (Lord Hodson), 277–8
(Lord Cross); Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 &
5) [2002] 2 AC 883, 1081 (Lord Nicholls), 1103 (Lord Steyn).
215
Oppenheim v Cattermole [1976] AC 249, 263 (Lord Hailsham), 278
(Lord Cross), 282–3 (Lord Salmon).
216
1 Restatement Third §§111–15; Paust, International Law as Law of
the United States (2nd edn, 2003); Dubinsky, in Shelton (2011) 631.
217
1 Restatement Third §111, comment (d); Dubinsky, in Shelton (2011)
631, 641–2.
218
301 US 324, 331 (1937).
219
27 US 253 (1829).
220
E.g. Paust (1986) 82 AJIL 760; Iwasawa (1986) 26 Va JIL 635;
Buergenthal (1992) 235 Hague Recueil 303; Vásquez (1995)
89 AJIL 695; Hathaway (2008) 117 Yale LJ 1236; Bederman (2008)
102 AJIL 528; Bradley (2008) 102 AJIL 540; Charnovitz (2008)
102 AJIL 551; Vásquez (2008) 102 AJIL 563; Wuerth (2009) 13 Lewis &
Clark LR 1; Huang (2011) 79 Fordham LR 2211.
221
Further: 1 Restatement Third §111.
222
552 US 491 (2008).
223
Avena, ICJ Reports 2004 p 12.
224
22 April 1963, 596 UNTS 261.
225
225
E.g. People of Saipan v US Department of the Interior, 302 F.2d 90,
97 (9th Cir, 1974); United States v Postal, 589 F.2d 862, 877 (5th Cir,
1979); Frolova v Union of Soviet Socialist Republics, 761 F.2d 370, 373–
4 (7th Cir, 1985).
226
United States v Postal, 589 F.2d 862, 877 (5th Cir, 1979),
quoting People of Saipan v US Department of the Interior, 302 F.2d 90,
97 (9th Cir, 1974). This approach was favoured by the dissenters
in Medellin, who urged reliance on a ‘practical, context-specific’
methodology to determining self-execution: 552 US 491, 549 (2008)
(Justice Breyer, diss). This was rejected by the majority on the basis that
it was indeterminate and would ‘assign to the courts—not the political
branches—the primary role in deciding when and how international
agreements would be enforced’: Ibid, 516.
227
552 US 491, 508 (2008), citing Committee of United States Citizens
living in Nicaragua v Reagan, 859 F.2d 929, 938 (DC Cir, 1989).
Further: McGuinness (2008) 102 AJIL 622.
228
552 US 491, 511 (2008). Also: Corus Staal BV v Department of
Commerce, 395 F.3d 1343, 1348–9 (Fed Cir, 2005); Sanchez-Llamas v
Oregon, 548 US 311, 354 (2006). Cf Medellin v Dretke, 544 US 660,
693–4 (2005) (Breyer J, diss), arguing that Art 94 of the
Charter does require internal compliance by US domestic courts with
decision of the International Court. Also: Torres v State of
Oklahoma (2004) 43 ILM 1227.
229
Cf Bradley (2008) 104 AJIL 540, 542.
230
Medellin v Texas, 552 US 491, 505 (2008).
231
552 US 491, 521 (2008). Cf Reisenfeld (1980) 74 AJIL 892; Vásquez
(1995) 98 AJIL 695; Vásquez (2008) 83 Notre Dame LR 1601; Moore
(2006) 75 G Wash LR 1.
232
1 Restatement Third §111, comment 5. Also: Henkin, Foreign Affairs
and the United States Constitution (2nd edn, 1996) 201; Vásquez (1999)
99 Col LR 2154. Other commentators argue for a
presumption against self-execution: e.g. Yoo (1999) 99 Col LR 1955,
2218.
233
233
552 US 491, 518, 520 (2008); Bradley (2008) 102 AJIL 540, 545–
7; Crootof (2011) 120 Yale LJ 1784, 1787. Also: Al-Bihani v Obama, 619
F.3d 1, 15–16 (DC Cir, 2010) (Judge Kavanaugh).
234
E.g. Brzak v United Nations, 597 F.3d 107 (2nd Cir, 2010).
Further: Crook (2010) 104 AJIL 281.
235
Since Medellin, the Senate has taken care to state in both its reports
and in declarations included in all resolutions of advice and consent
whether treaties (or specific provisions thereof) are or are not selfexecuting: Crook (2010) 104 AJIL 100; Crook (2011) 105 AJIL 124.
236
The situation may be different with respect to bilateral
arrangements: Crook (2011) 105 AJIL 124.
237
Bradley (2008) 102 AJIL 540, 547–50.
238
E.g. when invoked defensively in a criminal case: 552 US 491, 505
n2 (2008) (‘a “non-self-executing” treaty does not by itself give rise to
domestically enforceable federal law’); Ibid, 506 n3. Also: 1 Restatement
Third §111, comment (a).
239
Foster v Neilson, 27 US 253, 314 (1829). Further: Crootof (2011)
120 Yale LJ 1784, 1786.
240
552 US 491, 553 (Breyer J, diss). Also: Powell (2001) 150 U Penn
LR 245.
241
6 US 64, 118 (1804).
242
1 Restatement Third §114
243
E.g. United States v Yousef, 327 F.3d 56, 92 (2nd Cir, 2003). Cf
Eskridge, Frickey & Garrett, Statutes and the Creation of Public
Policy (4th edn, 2007) 884.
244
An idea generally credited, at least in the modern era, to Vásquez
(1995) 89 AJIL 695, 716 (‘In countless cases, the vast majority of those
raising treaty-based claims, the Court has resolved the case without even
mentioning the self-execution issue’).
245
Crootof (2011) 120 Yale LJ 1784, 1796–801. Thus the VCLT, signed
but not ratified by the US, is applied in US courts: e.g. Weinberger v
Rossi, 456 US 25, 29 (1982); Committee of US Citizens living in
Nicaragua, 859 F.2d 929, 940–1 (DC Cir, 1988).
246
16 December 1966, 999 UNTS 171.
247
Maria v McElroy, 68 F.Supp 2d 206, 231–2 (EDNY, 1999), reversed
on other grounds by Restrepo v McElroy, 369 F.3d 627 (2nd Cir, 2004).
248
E.g. Khan v Holder, 594 F.3d 773 (9th Cir, 2009) (interpreting statute
in accordance with the United Nations Protocol Relating to the Status of
Refugees, 4 November 1967, 606 UNTS 267).
249
E.g. Kane v Winn, 319 F.Supp 2d 162, 196 (D Mass, 2004). Cf Serra
v Lapin, 600 F.3d 1191, 1198 (9th Cir, 2010).
250
E.g. Capitol Records Inc v Thomas, 579 F.Supp 2d 1210 (D Minn,
2008).
251
175 US 677, 700 (1900).
252
E.g. Dickinson (1952) 101 U Penn LR 26; Henkin (1984) 82 Mich
LR 1555; Koh (1998) 111 Harv LR 1824.
253
Dubinsky, in Shelton (2011) 631, 642–3.
254
1 Restatement Third §111, comment (d).
255
Sosa v Alvarez-Machain, 542 US 692, 737–8 (2004); Samantar v
Yousuf, 130 S Ct 2278 (2010).
256
1 Restatement Third §111, reporters’ note 4.
257
Dubinsky, in Shelton (2011) 631, 644–51. E.g. Maier (1989) 10 Mich
JIL 450, 461, 475–6.
258
E.g. Bradley & Goldsmith (1997) 110 Harv LR 815.
259
Dubinsky, in Shelton (2011) 631, 644–51. Further: Bradley (1997)
86 Geo LJ 479, 536; and generally Alford (2006) 67 Ohio St LJ 1339.
260
600 F.3d 1191, 1198 (DC Cir, 2010).
261
For criticism: Dubinsky, in Shelton (2011) 631, 648–9.
262
590 F.3d 866 (DC Cir, 2010).
263
590 F.3d 866, 871 (DC Cir, 2010).
264
264
Ibid.
265
Further: Medellin v Texas, 552 US 491, 505 (2008).
266
590 F.3d 866, 871 (DC Cir, 2010).
267
Ibid, 885.
268
542 US 507, 519 (2004) (O’Connor J, plurality).
269
619 F.3d 1 (DC Cir, 2010).
270
Ibid, 1. Cf Ibid, 10–53 (Judge Kavanagh). Further: Crook (2010)
104 AJIL 656, 657.
271
28 USC §1350. Further: Filartiga v Pena-Irala, 630 F.2d 876 (2nd Cir,
1980). Also: the Torture Victims Protection Act 1991, which provides a
cause of action for any victim of torture or extrajudicial killing wherever
committed: 106 Stat 73. For a fuller account of the ATS and its operation
in a jurisdictional sense: chapter 21.
272
E.g. Sosa v Alvarez-Machain, 542 US 692, 720 (2004) (‘[the ATS]
furnished jurisdiction for a relatively modest set of actions alleging
violations of the law of nations’).
273
There is no nationality requirement imposed on the defendant by the
ATS; accordingly, US companies are named as defendants in most ATS
cases, converting the statute into a corporate social responsibility tool:
e.g. Doe v Unocal, 395 F.3d 932 (9th Cir, 2002) But a determination by
the Supreme Court as to whether corporations can be held liable under
the ATS has not yet been made: cf Presbyterian Church of Sudan v
Talisman Energy Inc, 582 F.3d 244 (2nd Cir, 2009); Kiobel v Royal Dutch
Petroleum, 621 F.3d 111 (2nd Cir, 2010) (cert granted); Sarei v Rio
Tinto (9th Cir, Docket No 02–56256/02–56390/09–56381, 25 October
2011) slip op; cf Crook (2010) 104 AJIL 119. Following argument on the
point, the Supreme Court has relisted Kiobel for argument as to its extraterritorial effect generally: Order of 5 March 2012.
274
Kadić v Karadžić, 70 F.3d 232, 240 (2nd Cir, 1995).
275
Abebe-Jira v Negewo, 72 F.3d 844, 847 (11th Cir, 1996).
276
Xuncax v Gramajo, 886 F.Supp 162, 179 (D Mass, 1995).
277
277
Hilao v In re Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir,
1994); Xuncax v Gramajo, 886 F.Supp 162, 179 (D Mass, 1995).
278
Forti v Suarez-Mason, 694 F.Supp 707, 720 (ND Cal, 1988).
279
Abdullahi v Pfizer Inc, 562 F.3d 163, 176–7 (2nd Cir, 2009).
280
Doe v Unocal, 395 F.3d 932, 957 (9th Cir, 2002).
281
542 US 692 (2004).
282
Ibid, 725.
283
Alvarez had previously succeeded in making out this cause of action
before the 9th Circuit sitting en banc: 331 F.3d 604, 620 (9th Cir, 2003).
For the Supreme Court reasoning dismissing the identified norm as a
cause of action: 542 US 692, 731–8 (2004).
284
(9th Cir, Docket No 02–56256/02–56390/09–56381, 25 October
2011) slip op 19332–3, 19358–80.
285
Henkin (1976) 85 Yale LJ 597; Redish (1984) 79 Nw
ULR 1031; Charney (1989) 83 AJIL 805; Franck, Political
Questions/Judicial Answers (1992); Seidman (2004) 37 J Marshall
LR 441; Choper [2005] Duke LJ 1457.
286
5 US (1 Cranch) 137, 165–6 (1803).
287
369 US 186, 217 (1962). Also: Schneider v Kissinger, 412 F.3d 190
(DC Cir, 2005); Bancoult v McNamara, 445 F.3d 427 (DC Cir,
2006); Gonzalez-Vera v Kissinger, 449 F.3d 1260 (DC Cir, 2006). As a
whole, the doctrine is linked to Jeffersonian considerations of the
separation of powers: US Department of Commerce v Montana, 503 US
442, 456 (1992), quoting Baker v Carr, 369 US 186, 217 (1962).
288
E.g. Colgrove v Green, 328 US 549 (1946).
289
E.g. Nixon v United States, 506 US 224 (1993).
290
E.g. Coleman v Miller, 307 US 433, 450 (1939).
291
Zivotofsky v Secretary of State, 571 F.3d 1227 (DC Cir, 2010)
(cert granted), concerning a statue passed by Congress requiring that
‘Israel’ be inserted as the place of birth for every American child born in
Jerusalem. Further: Crook (2010) 104 AJIL 278; Crook (2011)
105 AJIL 814.
292
E.g. Goldwater v Carter, 444 US 996 (1976).
293
591 F.Supp 1332 (1984). Also: Gilligan v Morgan, 413 US 1 (1973)
(composition, training, equipping, and control of the National Guard nonjusticiable) Can v United States, 14 F.3d 160 (2nd Cir, 1994) (issues of
succession arising from assets of a foreign state non-justiciable); Corrie v
Caterpillar, 503 F.3d 974 (9th Cir, 2007) (provision of military assistance
by US to foreign states a political question).
294
Klinghoffer v SNC Achille Lauro, 937 F.2d 44, 49 (2nd Cir, 1991).
295
70 F.3d 232, 249 (2nd Cir, 1995), citing Baker v Carr, 369 US 186,
211 (1962); Lamont v Woods, 948 F.2d 825, 831–2 (2nd Cir, 1991).
296
Bazyler (1986) 134 U Penn LR 325; Chow (1987) 62 Wash
LR 397; Fox (1992) 33 Harv ILJ 521; Born, International Civil Litigation in
United States Courts (3rd edn, 1996) ch 9; Pearsall (2005) 43 Col
JTL 999; Patterson (2008) 15 UC Davis JILP 111.
297
Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888, 932–3 (Lord
Wilberforce), citing Underhillv Hernandez, 168 US 250, 252
(1897), Oetjen v Central Leather Co, 246 US 297, 304 (1918), both of
which influenced AM Luther v James Sagor & Co [1921] 3 KB 252.
298
1 Restatement Third §443(1).
299
168 US 250 (1897).
300
Ibid, 251–2. Also: Outjen v Central Leather Co, 246 US 297, 300–4
(1918) (stressing the need to protect comity and ‘the peace of
nations’); Ricaud v American Metal Co, 246 US 304, 309 (1918) (‘to
accept a ruling authority and to decide accordingly is not a surrender or
abandonment of jurisdiction, rather it is an exercise of it’).
301
1 Restatement Third §443, comment (a).
302
376 US 398, 401(1964).
303
Ibid, 423.
304
Ibid, 428. Further: Alfred Dunhillof London Inc v Republic of Cuba,
425 US 682 (1976).
305
305
WS Kirkpatrick & Co Inc v Environmental Tectonics Corporation
International, 493 US 400 (1990). Further: Bederman, International Law
Frameworks (2001) 199 (arguing that Kirkpatrick took the act of state
doctrine in the US ‘to the vanishing point’).
306
493 US 400, 405, 409 (1990).
307
Ibid, 409–10.
308
Alfred Dunhillof London Inc v Republic of Cuba, 425 US 682, 711
(1976). Also: Malewicz v City of Amsterdam, 362 F.Supp 2d 298, 314
(DDC, 2005).
309
Born (3rd edn, 1996) 729–44.
310
Banco Nacional de Cuba v Sabbatino, 376 US 398, 428
(1964); American Intern Group Inc v Islamic Republic of Iran, 493 F.Supp
522, 525 (DDC, 1980); Kalamazoo Spice Extraction Co v PMG of
Socialist Ethiopia, 728 F.2d 422 (6th Cir, 1984). Further: Born (3rd edn,
1996) 738–4.
311
Bernstein v NV Nederlandsche-Amerikannsche StoomvartMaatschappij, 210 F.2d 375 (2nd Cir, 1954).
312
First National City Bank v Banco Nacional de Cuba, 406 US 750, 733
(1972).
313
WS Kirkpatrick & Co Inc v Environmental Tectonics Corporation
International, 493 US 400, 404–10 (1990). Further: Denza, in Evans (3rd
edn, 2010) 411, 412–17.
314
315
Born (3rd edn, 1996) 733–8.
E.g. Alfred Dunhillof London Inc v Republic of Cuba, 425 US 682,
695 (1976) (White J, plurality); WS Kirkpatrick & Co Inc v Environmental
Tectonics Corporation International, 493 US 400, 404–5 (1990); United
States v Giffen, 326 F.Supp 2d 497 (SDNY, 2005) (declining to apply act
of state doctrine where parties’ contract made actions commercial, as
opposed to governmental); Government of the Dominican Republic v
AES Corporation, 466 F.Supp 2d 680, 695 (ED Va, 2006) (‘The act of
state doctrine does not cover private and commercial acts of sovereign
states’); Malewicz v City of Amsterdam, 517 F.Supp 2d 332, 337–9 (DDC,
2007) (acquisition of painting by city official not a public act); but
cf Honduras Aircraft Registry Ltd v Government of Honduras, 129 F.3d
543, 550 (11th Cir, 1997); Glen v Club Mediterranee SA, 450 F.3d 1251,
1254 n2 (11th Cir, 2006) (no commercial activity exception).
316
Patterson (2008) 15 UC Davis JILP 111, 125–8.
317
9 USC §15.
318
Further: Republic of Ecuador v Chevron Texaco Corporation, 376
F.Supp 2d 334, 367 (SDNY, 2005).
319
22 USC §2370(e)(2).
320
E.g. Banco Nacional de Cuba v Chase Manhattan Bank, 658 F.2d
875, 882 (2nd Cir, 1981); Compania de Gas de Nuevo Laredo v Entex
Inc, 696 F.2d 332 (5th Cir, 1982).
321
Hunt v Coastal States Gas Producing Co (1979) 66 ILR 361. Further:
Born (3rd edn, 1996) 744.
322
28 USC §1350.
323
Constitution of the Fift h Republic, Preamble (‘The French people
solemnly proclaim their attachment to the Rights of Man and the
principles of national sovereignty as defined by the Declaration of 1789,
confirmed and complemented by the Preamble to the Constitution of
1946’).
324
Constitution of the Fourth Republic, Preamble, §14.
325
Ibid, §15.
326
Decaux, in Shelton (2011) 205, 235.
327
E.g. Re Self-Determination of the Comoros Islands, 30 December
1975, Rec 41, 74 ILR 91; Nationalization Law, 16 January 1982, Rec 18,
75 ILR 700; Nationalization Law (No 2), 11 February 1982, Rec 31, 75
ILR 700; Law on the Evolution of New Caledonia, 8 August 1985, Rec
63; Law on the Evolution of New Caledonia (No 2), 23 August 1985, Rec
70.
328
Treaty on European Union, 9 April 1992, Rec 55, 93 ILR 337.
329
Treaty on European Union, 7 February 1992, OJEU C 191/1.
330
E.g. Carreau, Droit international (9th edn, 2007) 447.
331
331
Decaux, in Shelton (2011) 205, 236–7.
332
E.g. Paulin [2000] Rec Lebon 317; Zaidi [2000] Rec Lebon
159; Aquarone [1997] Rec Lebon 206.
333
23 May 1949; amended by the Unification Treaty, 31 August 1990, 30
ILM 457. The most recent (58th) amendment occurred on 27 July 2010.
On reunification: Harris (1991) 81 Geo Rev 170. Notable considerations
of Art 25 by the Constitutional Court include: Philippine Embassy, 46
BVerfGE 342 (1977), 65 ILR 146; National Iranian Oil Company, 64
BVerfGE 1 (1983), 65 ILR 215; 75 BVerfGE 1 (1988) (further: decision of
4 December 2007, 2 BvR 38/06); Diplomatic Immunity (Syria), 96
BVerfGE 68 (1997), 115 ILR 595; 117 BVerfGE 141 (2006); Argentine
Necessity, 118 BVerfGE 124 (2007), 138 ILR 1.
334
Pithily rendered in German as Völkerrechtsfreundlichkeit des
Grundgesetzes: Folz, in Shelton (2011) 240, 245–6.
335
Ibid, 245.
336
Constitutional Court, 18 June 1979, Judgment No 48, 78 ILR 101.
337
Constitutional Court, 23 March 2001, Judgment No 73. Earlier:
Constitutional Court, 29 January 1996, Judgment No 15.
338
Scholars differ on whether peremptory norms are subject to the same
limitations. It seems arguable that they may be considered themselves as
‘fundamental principles of the constitutional order’: Cataldi, in Shelton
(2011) 328, 346, 349–52. Also: Constitutional Court, 29 December 1988,
Judgment No 1146; Ferrini v Federal Republic of Germany, Corte di
Cassazione, 11 March 2004, Judgment No 5044, 128 ILR 659.
339
Corte di Cassazione, 13 January 2009, Judgment No 1072.
340
Further: Cataldi, in Shelton (2011) 328, 342–4.
341
On general principles: Re Hartmann and Pude, Constitutional Court,
18 April 1967, Judgment No 48, 71 ILR 232; Zennaro, Constitutional
Court, 8 April 1976, Judgment No 69, 77 ILR 581; Constitutional Court,
27 April 1994, Judgment No 168. On peremptory norms: Ferrini v Federal
Republic of Germany, Corte di Cassazione, 11 March 2004, Judgment
No 5044, 128 ILR 659; Lozano v Italy, Corte di Cassazione, 24 July
2008, Case No 31171/2008, ILDC 1085 (IT 2008); Corte di Cassazione,
13 January 2009, Judgment No 1072.
342
Butler, Russian Law (3rd edn, 2009) 693–6.
343
Marochkin (2007) 6 Chin JIL 329, 330.
344
On international law and the USSR: Gryzbowski, Soviet Public
International Law (1970).
345
Plenum of the Supreme Court of the Russian Federation, Decree No
5, 10 October 2003, §1.
346
Tikhomirov, in Shelton (2011) 517, 523. But cf Danilenko (1999)
10 EJIL 51, 57–9, identifying an emerging trend in the application of
custom in the jurisprudence of the Russian Constitutional Court.
Danilenko goes on to note, however, that ‘ordinary’ Russian courts have
much less experience in applying custom, and are more likely to rely on
treaties and ‘commercial customs in the sphere of international trade’
(Ibid, 58–9). Further: Denza, in Evans (3rd edn, 2010) 411, 420–
1. Marochkin (2007) 6 Chin JIL 329, 344, who despite his initial
pessimism, nonetheless concludes ‘we can speak [generally] about a
positive attitude of the Court system towards international law’.
347
Re Khordodovskiy (2006) 133 ILR 365.
348
As reflected in the Body of Principles for the Protection of All Persons
under any Form of Detention or Imprisonment, GA Res 43/173, 9
December 1988, Principle 18.
349
(2003) 133 ILR 365, 370.
350
The Constitution dates from 1848, but has been amended repeatedly,
most recently in 2002. Further: Erades, in van Panhuys, Jitta, Sik & Stuyt
(eds), 3 International Law in the Netherlands (1980) 388.
351
NJ (1961) No 2.
352
Alkema, in Shelton (2011) 407, 419. The Charter (Statuut) regulates
the relationship between the Netherlands and its former colonial
territories in the Caribbean. E.g. NJ (1974) No 361.
353
Alkema, in Shelton (2011) 407, 419. This form of integration will
generally concern the execution of court judgments, as well as certain
matters of criminal and fiscal law. E.g. General Provisions Kingdom
Legislation Act of 1829, Art 13(a): ‘The courts’ jurisdiction and the
enforceability of judgments is subject to the exceptions recognised in
international law’.
354
E.g. NJ (1979) No 113, reported in Barnhoorn (1980) 11 NYIL 289,
326.
355
Alkema, in Shelton (2011) 407, 420.
356
Bogdan (1994) 63 Nordic JIL 3, 4–6; Klamberg (2009) 9 Int Crim
LR 395, 296–7. E.g. Swedish Criminal Code (Brottsbalken), ch 22.6: ‘A
person guilty of a serious violation of a treaty or agreement with a foreign
power or an infraction of a generally recognised principle or tenet relating
to international humanitarian law concerned armed conflict shall be
sentenced for [a] crime against international law and imprisoned at most
for four years’.
357
E.g. Anna B v Union of Soviet Socialist Republics [1934] NJA
206; The Crow v von Herder [1964] NJA 65.
358
Bogdan (1994) 63 Nordic JIL 3, 5.
359
Ibid. Cf e.g. In re Bolin [1934] NJA 206, 7 ILR 186; The
Rigmor [1942] NJA 65, 10 ILR 240; Municipality of Västerås v
Iceland [1999] NJA 821, 128 ILR 705. Apart from a statute of 1938 which
implements the 1929 Brussels Convention on state-owned vessels,
Sweden does not have any general legislation on sovereign immunity.
The Swedish Supreme Court has applied the rules and principles of
customary international law in the area of state immunity:
e.g. Bostadsrättsföreningen x 13 v Kingdom of Belgium [2009] NJA
905; Sedelmayer v Russian Federation, 1 July 2011, available
at www.italaw.com.
360
361
Bogdan (1994) 63 Nordic JIL 3, 5.
Decaux, in Shelton (2011) 207, 216. This much is confirmed by
the Conseil Constitutionnel: Treaty establishing a European Constitution,
19 November 2004, Rec 173. The Conseil d’État only conceded that Art
55 applies to legislation that post-dates the treaty in question in 1989 (Re
Nicolo [1989] Rec Lebon 748, 93 ILR 286): Denza, in Evans (3rd edn,
2010) 411, 420. In Sarran, the Conseil held that the superiority of treaties
did not extend to provisions of a constitutional character: [1998] Rec
Lebon 368. Also: Syndicat national de l’industrie pharmaceutique [2001]
Rec Lebon 624.
362
The sole exception to this rule is where a new treaty addresses
directly a previously ratified treaty: Treaty on European Union, 9 April
1992, Rec 55, 93 ILR 337.
363
The use of this procedure is not uncommon. The Treaty of Maastricht
was the subject of three referrals: one presidential leading to Treaty on
European Union, 9 April 1992, Rec 55, 93 ILR 337; a senatorial referral
leading to Treaty on European Union (No 2), 2 September 1992, Rec 76,
98 ILR 180; and one referral by the National Assembly on the referendum
law authorizing ratification, leading to Treaty on European Union (No 3),
23 September 1992, Rec 94. Further: Decaux, in Shelton (2011) 207,
217.
364
Decaux, in Shelton (2011) 207, 212.
365
Abortion Law, 15 January 1975, Rec 19, 74 ILR 523; 1961
Supplementary Budget Amendment, 20 July 1977, Rec 39; Monthly
Payment Law, 18 January 1978, Rec 21; Mutual Assistance in Criminal
Matters, 17 July 1980, Rec 36; Finance Act 1990, 29 December 1989,
Rec 110; Senate Rules Amendment, 23 July 1991, Rec 81; Economic
and Financial Law, 24 July 1991, Rec 82; Planning and Building Law, 21
January 1994, Rec 40; Foreign Residence and Asylum Law, 5 May 1998,
Rec 245; Finance Act 1999, 29 December 1998, Rec 326; Universal
Healthcare Law, 23 July 1999, Rec 100; Equal Opportunity Law, 30
March 2006, Rec 50. Further: Decaux, in Shelton (2011) 207, 223–5.
366
Abortion Law, 15 January 1975, Rec 19, 74 ILR 523. When acting as
electoral judge, however, the Conseil will assess the conformity of
domestic laws to international treaties (Elections of the Val d’Oise, 21
October 1988, Rec 183, 111 ILR 496).
367
Administration des Douanes v Société Cafés Jacques Vabre [1975]
Rec Dalloz 497, 93 ILR 240, 263. This approach has been expanded
beyond the Community sphere, most notably in the context of the
criminal law: e.g. Glaeser [1976] Rec Dalloz 1, 74 ILR 700; Barbie, 20
December 1985, JCP 1986 II 20655, 78 ILR 124.
368
368
Treaty establishing the European Economic Community, 25 March
1957, 298 UNTS 3.
369
[2007] Rec Lebon 78.
370
National Federation of Guardianship Associations [2000] Rec Lebon
781; Prefect of La Gironde v Mhamedi [1992] Rec Lebon 446, 106 ILR
204 (suspension of application of treaty must also be subject to
publication). Further: Decaux, in Shelton (2011) 207, 226.
371
Further: Decaux, La Réciprocité en droit international (1980).
372
Finance Act 1981, 30 December 1980, Rec 53; Higher Education
Framework Act, 30 October 1981, Rec 31.
373
Decaux, in Shelton (2011) 207, 227.
374
17 July 1998, 2187 UNTS 3.
375
Re ICC Statute, 22 January 1999, Rec 29, 125 ILR 475.
376
E.g. GITSI [1992] Rec Lebon 346, 106 ILR 198; Mme ChevrolBenkeddach [1999] Rec Lebon 116.
377
Decaux, in Shelton (2011) 207, 227.
378
Chevrol v France [2003] EtCHR 49636/99, §§76–84.
379
Paulus, in Sloss (ed), The Role of Domestic Courts in Treaty
Enforcement (2009) 209, 214–18.
380
There is some disagreement within the German authorities as to how
this is brought about. Total incorporation is seen as too radical, whereas
transformation tends to decontextualize the treaty from the international
sphere. The approach most germane to Art 59(2) is that of ‘execution’
which characterizes the legislative ratification of the treaty as a legislative
directive to follow the provisions of the treaty as international law within
the domestic order: Ibid, 217–18.
381
Ibid, 209–10.
382
Folz, in Shelton (2011) 240, 244; cf Paulus, in Sloss (2009) 209,
221–2.
383
384
Folz, in Shelton (2011) 240, 242–3.
384
111 BVerfGE 307, 328 (2004).
385
Von Hannover v Germany [2004] ECtHR 59320/00, overruling 101
BVerfGE 361 (1999).
386
Generally: 111 BVerfGE 307 (2004).
387
The Court upheld this realignment with Strasbourg in principle in 120
BVerfGE 180 (2008), which was then appealed (again) to the ECtHR
(Application No 60641/08, pending). Similar developments have occurred
in preventive detention cases: e.g. 109 BVerfGE 133 (2004), overruled
in M v Germany [2009] ECtHR 19359/09, in turn implemented in 2 BvR
2933/08 (2011). Further: Kirchhof (2011) 64 NJW 3681.
388
Corte di Cassazione, 22 March 1984, Judgment No 1920.
389
Cataldi, in Shelton (2011) 328, 338.
390
Ibid, 339.
391
Ibid, 342.
392
E.g. Constitutional Court, 24 October 2007, Judgment No 248;
Constitutional Court, 24 October 2007, Judgment No 249.
393
Further implementation is provided by Federal Law No 101-Φ? of 15
July 1995 on the International Treaties of the Russian Federation: Butler
(3rd edn, 2009) 696–7.
394
Further: Tikhomirov, in Shelton (2011) 517, 521.
395
Plenum of the Supreme Court of the Russian Federation, Decree No
5, 10 October 2003, §8 (‘The rules of the effective international treaty of
the Russian Federation, the consent on the mandatory nature of which
was issued in the form of a federal law, shall be given priority against the
laws of the Russian Federation’). Also: Plenum of the Supreme Court of
the Russian Federation, Decree No 8, 31 October 1995. If consent to a
treaty was not given by way of ratification in the form of a federal law,
then treaty rules will only have priority with respect to subordinate
normative-legal acts issued by the governmental agency which
concluded the treaty: Butler, in Sloss (2009) 410, 421.
396
Resolution adopted by the Plenum of the Supreme Court of the
Russian Federation, Decree No 5, 10 October 2003, §4. In 2007 Federal
Law No 101-Φ? of 15 July 1995 was amended to give Rosatom, a stateowned corporation, treaty-making capacity: Butler (2008) 102 AJIL 310;
Butler (3rd edn, 2009) 696.
397
Plenum of the Supreme Court of the Russian Federation, Decree No
5, 10 October 2003, §3.
398
Butler, in Sloss (2009) 410, 417. The period between entry into force
and publication may be as long as several years: Ibid, 434.
399
Plenum of the Supreme Court of the Russian Federation, Decree No
5, 10 October 2003, §3.
400
In particular the requirement of official publication: Butler, in Sloss
(2009) 211, 436–8.
401
Tikhomirov, in Shelton (2011) 517, 523. Also: Plenum of the Supreme
Court of the Russian Federation, Decree No 5, 10 October 2003, §5.
Further: Butler, in Sloss (2009) 411, 418–21.
402
Butler, in Sloss (2009) 411, 418.
403
Reference is sometimes made to Art 93 of the Constitution, which
provides that ‘Provisions of treaties and resolutions by international
institutions that are binding on all persons by virtue of their contents shall
become binding after they have been published’ as providing a
constitutional basis for the validity of treaties, but this is better
characterized as going to their direct effect within municipal law:
Nollkaemper, in Sloss (2009) 326, 331–3.
404
NJ (1919) No 371.
405
Nollkaemper, in Sloss (2009) 326, 332.
406
Constitution of the Netherlands, Art 90 (‘The Government shall
promote the development of the international rule of law’). On this
imperative: Besselink (2003) 34 NYIL 89.
407
On the role of Parliament in the treaty-making process: Alkema
(1984) 31 NILR 307; van Dijk & Tahzib (1991) 67 Chi Kent LR 413.
408
Law on the Approval and Promulgation of Treaties, Stb 1994, 542,
Art 1 (Law on Treaties); also Klabbers (1995) 44 ICLQ 629. The
government is not required to inform Parliament as the content of the
treaty in question, merely its progress, though this does not prevent
Parliament from requesting that further information be provided.
409
Nollkaemper, in Sloss (2009) 326, 328.
410
Further: Klabbers (1995) 44 ICLQ 629, 631–5.
411
Law on Treaties, Art 7(a). E.g. the Act of Approval for the Convention
on the Privileges and Immunities of the United Nations, 13 February
1946, 1 UNTS 15, states that the government has the right to enter into
similar agreements with international organizations without the need for
prior legislative approval. On immunities agreements and international
organizations: chapter 7.
412
Law on Treaties, Art 7(b).
413
Ibid, Art 7(c).
414
Ibid, Art 7(d).
415
Ibid, Art 7(e).
416
Ibid, Art 7(f). This loophole could permit changes to the fabric of
existing treaties that rely on lengthy indexes for their substance. E.g. it
would exclude from parliamentary approval changes in annexes to
environmental treaties detailing prohibited or restricted substances
unless Parliament has made a reservation precluding unapproved
changes: Klabbers (1995) 44 ICLQ 629, 634–5; Nollkaemper, in Sloss
(2009) 326, 328.
417
The justification for this is rooted in the separation of powers; were
vague or hortatory provisions given supremacy, this would give too much
power to the courts to override the codified will of the legislature:
Nollkaemper, in Sloss (2009) 326, 332–5.
418
See e.g. NJ (1995) No 619, reported in Barnhoorn (1997)
27 NYIL 336. On the process: Nollkaemper, in Sloss (2009) 326, 341–5.
419
NJ (1992) No 107. The principle applies irrespective of whether the
law so interpreted entered into force before or after the adoption of the
treaty: Nollkaemper, in Sloss (2009) 326, 349–50.
420
E.g. Rundqvist v Montan [1892] NJA 377.
421
Bogdan (1994) 63 Nordic JIL 3, 6–11.
422
422
Swedish Engine Drivers’ Union v The State [1972] Arbetsdomstolens
Domar No 5.
423
Sandström v The Crown [1973] NJA 423.
424
Engquist v The School Board of Luleå
Municipality [1974] Regeringsrättens Årsbock No 61.
425
This is especially the case with the ECtHR: e.g. Prosecutor v
Sulayman F [1992] NJA 532; Folke B v Navarsvikens
jaktvårdsområdesförening [1994] NJA 290. On the general doctrine that
statutes should be interpreted consistently with Sweden’s obligations
under international law: Ingela C v KFA [1981] NJA 1205; The
Tsesis [1983] NJA 3; Prosecutor v Lennart A [1988] NJA 572; Prosecutor
v Nezmi A [1989] NJA 131.
426
Bogdan (1994) 63 Nordic JIL 3, 10–11.
427
Ibid, 10.
428
For a comparative view of emerging trends: Benvenisti (1993)
4 EJIL 159; Amaroso (2010) 23 LJIL 933. Also: the (now slightly dated)
overview of European attitudes towards non-justiciability given by
Advocate-General Darmon in Case C-241/87, Maclaine Watson & Co Ltd
v Council & Commission of the European Communities (1990) 96 ILR
201, 217–18.
429
United Kingdom and Governor of Hong Kong [1993] Rec Lebon 267,
106 ILR 233 (Commissaire du Gouvernement Vigouroux).
430
Ibid, 236. Also: GITSI [1992] Rec Lebon 346, 106 ILR 198, 200
(Commissaire du Gouvernement Kessler).
431
Further: United Kingdom and Governor of Hong Kong [1993] Rec
Lebon 267, 106 ILR 233, 238–40.
432
Delle Buttner [1953] Rec Lebon 184.
433
De Malglaive [1970] Rec Lebon 635, 72 ILR 236. However, if the
treaty is published, the judge is competent to assess whether the act of
publication is in conformity with constitutional provisions: Commune of
Porta [2002] Rec Lebon 260.
434
435
Petit T [1973] Rec Lebon 921.
435
The Greens Association [1984] Rec Lebon 382.
436
Paris de Bollardière [1975] Rec Lebon 423, 74 ILR 95.
437
Société Sapvin [1988] Rec Lebon 133, 89 ILR 6.
438
Prefect of La Gironde v Mahmedi [1992] Rec Lebon 446, 106 ILR
204.
439
GITSI [1992] Rec Lebon 346, 106 ILR 198.
440
Mégret [2000] Rec Lebon 291.
441
Committee against the Iraq War [2003] Rec Lebon 707.
442
United Kingdom and Governor of Hong Kong [1993] Rec Lebon 267,
106 ILR 223, 239–40.
443
Finance Ministry [1966] Rec Lebon 476.
444
Yener and Erez [1987] Rec Lebon 151, 89 ILR 1.
445
Société Nachfolger Navigation Company Ltd [1987] Rec Lebon 319,
89 ILR 3.
446
Case C-241/87, Maclaine Watson & Co Ltd v Council & Commission
of the European Communities (1990) 96 ILR 201, 217–18.
447
Ibid, quoting Radiodiffusion française [1950] Rec Lebon 652 (Tribunal
des conflits).
448
United Kingdom and Governor of Hong Kong [1993] Rec Lebon 267,
106 ILR 223, 240–3.
449
For a comparison with the common law tradition of judicial review as
practised in the US: Currie, The Constitution of the Federal German
Republic (1999) 162–72; Quint (2006) 65 Md LR 152.
450
This form of jurisdiction is known as Organstreit or ‘dispute between
constitutional organs’: Quint (2006) 65 Md LR 152, 156–7.
451
Basic Law, Arts 92–4, 100.
452
Folz, in Shelton (2011) 240, 245.
453
Basic Law, Art 2(1) refers to ‘freedom of personality’. The Federal
Constitutional Court has interpreted this as including any and all things
that a person might wish to do: 6 BVerfGE 32, 41 (1957). Further: Currie
(1999) 165–6.
454
E.g. 85 BVerfGE 191, 205–6 (1992) (employer permitted to argue
that a ban on nocturnal employment discriminated against female
employees).
455
E.g. Jurisdiction over Berlin, 20 BVerfGE 257, 268–71 (1966), 75 ILR
113, 114–16 (excessive delegation); 26 BVerfGE 246, 253–8 (1969) (lack
of federal authority).
456
E.g. 39 BVerfGE 1 (1975) (challenging a statute relaxing the criminal
penalties for abortion).
457
Folz, in Shelton (2011) 240, 244.
458
Quint (2006) 65 Md LR 152, 161–2.
459
On the basis that German forces could only be deployed for the
purposes of ‘defence’: Basic Law, Art 87a(2).
460
90 BVerfGE 286 (1994), 106 ILR 319, 327–30. Further: Quint, The
Imperfect Union (1997) 290–6.
461
Treaty concerning the basis of relations between the Federal
Republic of Germany and the German Democratic Republic, 21
December 1972, Bundesgesetzblatt II (1973) 423.
462
Relations Treaty between the FRG and GDR, 36 BVerfGE 1 (1973),
78 ILR 149. The Court gave a restrictive interpretation to the agreements
so as to avoid the full recognition of the GDR in international law.
463
Maastricht Treaty 1992, 89 BVerfGE 155 (1993), 98 ILR 196. The
Court affirmed that any further derogation from German sovereignty
would be met with extremely close scrutiny.
464
Further: Currie (1999) 170–1; Quint (2006) 65 Md LR 152, 166.
465
66 BverfGE 39 (1983), 106 ILR 353.
466
Ibid, 362.
467
Ibid, 361.
468
Ibid, 362.
469
469
Currie (1999) 170–1.
470
Chemical Weapons Deployment(Danger to Life), 77 BVerfGE 170
(1987), 106 ILR 389, 395.
471
Frulli (2003) 1 JICJ 406, 410.
472
Constitution of Italy, Arts 78 and 87.
473
Further: Virga, 1 Diritto amministravito (6th edn, 2001) 280.
474
President of the Council v Marcović, Corte di Cassazione, 5 June
2002, Judgment No 8157, 128 ILR 652, 655–6. Frulli argues that while
the initial declaration of war may not be justiciable, those individual acts
performed in the prosecution of armed conflict ought to be, with any other
alternative depriving a plaintiff of his or her rights under Arts 2 and 24 of
the Constitution. Moreover, this argument is consistent with
representations previously made by the Italian government before the
ECtHR: Frulli (2003) 1 JICJ 406, 412–14.
475
There is here a certain tension with Art 2 of the Constitution, which
provides that ‘[t]he Republic recognizes and guarantees the inviolable
rights of man, as an individual, and in the social groups where he
expresses his personality, and demands the fulfilment of the
intransgressible duties of political, economic, and social solidarity’. This is
paired with Art 24, which itself provides the right to an effective judicial
remedy for the violation of fundamental rights and interests. Further: Frulli
(2003) 1 JICJ 406, 412.
476
Burnham, Maggs & Denilenko, Law and Legal System of the Russian
Federation (4th edn, 2009) 640–1.
477
Ibid, 645.
478
Butler (3rd edn, 2009) 172–7. For a history of the Constitutional
Court: Trochev, Judging Russia (2008).
479
Constitution of the Russian Federation, Art 125(2).
480
Ibid, Art 125(4).
481
Burnham et al (4th edn, 2009) 72.
482
Ibid, 73. Further: Trochev (2008) ch 3.
483
483
Ruling No 10-P, VKS 1995 No 11, 3 (31 July 1995).
484
Additionally, the court managed to avoid giving substantive
consideration to the human rights issues raised by the case, by referring
them to unspecified further proceedings before the criminal
courts: Pomeranz (1997) 9 RCEEL 9, 26–8.
485
Generally: van der Schyff (2010) 11 GLJ 275.
486
Van der Schyff (2010) 11 GLJ 275, 279–81.
487
E.g. Foundation for the Prohibition of Cruise Missiles, NJ (1991) No
248, 106 ILR 400, concerning an attempt by a community organization to
pre-empt the Dutch government from permitting US cruise missiles to be
based on Dutch soil. In Germany, the question was considered effectively
non-justiciable: Cruise Missiles(Danger to Life), 66 BVerfGE 39 (1983),
106 ILR 353. The Dutch court did not even refer to the doctrine when
dismissing the application.
488
Association of Lawyers for Peace v Netherlands, NJ (2002) No 217,
§3.3.
489
Generally: Fleurin (2010) 57 NILR 262.
490
Here, the interlocutory judge paid particular attention to the effects
that such an order, if granted, would have on US–Dutch relations and
Dutch foreign policy as a whole: Hague City Party v Netherlands, ILDC
849 (NL 2005), §§3.4–5, 3.8.
491
NJ (2004) No 329, §3.4. Also: NJ (2003) No 35 (concerning Kosovo).
492
Nergelius, Constitutional Law in Sweden (2011) 121.
493
[1964] NJA 471.
494
The requirement was introduced in case-law prior to constitutional
integration: [1951] NJA 39. Also: [1948] NJA 188. The resulting standard
is steep. One former Swedish judge has stated that it required him to rule
non-justiciable issues surrounding legislation he believed clearly
unconstitutional where one of his colleagues could not detect a manifest
error; if his colleagues were in disagreement, the error could by definition
not be manifest: Nergelius (2011) 120.
495
496
See Nergelius (2011) 117–20.
496
Monists underestimate this aspect of the matter or gloss it over with
conceptualism. The fact is that national law is more viable in terms of
organization whereas international law is less of a system in this sense.
From this perspective there is some substance in the view that
international law derives from the activities of the constitutional organs of
states. International law has often been dependent on state machinery
for its enforcement. Although there has been a strengthening of
international institutions, especially of dispute settlement (see
chapter 32), international law remains largely dependent on state
machinery for enforcement. Further, many aspects of international law
are to be implemented primarily at a domestic level and international
institutions play a secondary role. This view, characterized as monism-inreverse, was supported by e.g. Decencière-Ferrandière (1933)
40 RGDIP 45. Critics have tended to caricature this position, but it
accords with widely held views that international law is international and
not dependent on a supranational coercive order.
Part II Personality and Recognition
(p. 115) 4 Subjects of International Law
1. Introduction1
A subject of international law is an entity possessing international rights
and obligations and having the capacity (a) to maintain its rights by
bringing international claims;2 and (b) to be responsible for its breaches
of obligation by being subjected to such claims.3 This definition, though
conventional, is unfortunately circular since, while the indicia referred to
depend in theory on the existence of a legal person, the main way of
determining whether the relevant capacity exists in case of doubt is to
inquire whether it is in fact exercised. All that can be said is that an entity
of a type recognized by customary law as capable of possessing rights
and duties and of bringing and being subjected to international claims is a
legal person. If the latter condition is not satisfied, the entity concerned
may have legal personality of a very restricted kind, dependent on the
agreement or acquiescence of recognized legal persons and opposable
on the international plane only to those agreeing or acquiescent. The
principal formal contexts in which the question of personality has arisen
have been: capacity to make claims in respect of breaches of
international law, capacity to make treaties and agreements valid on the
international plane, and the enjoyment of privileges and immunities from
national jurisdiction. States pre-eminently have these capacities and
immunities; indeed the incidents of statehood as developed under
customary law have provided the indicia for, and instruments of
personality in relation to, other entities.
Apart from states, organizations may have these capacities and
immunities if certain conditions are satisfied. The capacity to claim under
international law, at least for organizations of a certain type, was
established in Reparation for Injuries.4 Waldock’s first report on the law of
treaties noted the capacity of international organizations to (p.
116) become parties to international agreements, and this reflected the
existing practice.5Since Reparation for Injuries international organizations
have joined states as a recognized category of legal persons, and this
has facilitated acceptance of quite limited or marginal entities as such (for
international organizations see chapter 7).
Thus it is states and organizations which represent the normal types of
legal person on the international plane. However, the realities of
international relations are not reducible to a simple formula. The ‘normal
types’ have congeners which create problems, and various entities which
are of neither type can have a certain personality—for example. the
International Committee of the Red Cross (ICRC).6 Moreover, abstraction
of types of acceptable persons at law falls short of the reality, since
recognition and acquiescence may sustain an entity which is in some
respects anomalous and yet has a web of legal relations on the
international plane.
In spite of the complexities, it is as well to remember the primacy of
states as subjects of the law. As Friedmann observes:
The basic reason for this position is…that ‘the world is today
organized on the basis of the co-existence of States, and that
fundamental changes will take place only through State action,
whether affirmative or negative’. The States are the repositories
of legitimated authority over peoples and territories. It is only in
terms of State powers, prerogatives, jurisdictional limits and lawmaking capabilities that territorial limits and jurisdiction,
responsibility for official actions, and a host of other questions of
co-existence between nations can be determined…This basic
primacy of the State as a subject of international relations and
law would be substantially affected, and eventually superseded,
only if national entities, as political and legal systems, were
absorbed in a world state.7
2. Established Legal Persons
(A) States
This category is by far the most important, but it has its own problems,
analysed in chapter 5. For instance, the existence of ‘dependent’ states
with certain qualified legal
References
(p. 117) capacities has historically complicated the picture, but, providing
the basic conditions for statehood existed, the ‘dependent’ state retained
its personality. In some federations (notably those created by a union of
states at the international level), the constituent members retain certain
residual capacities. In the constitutions of Switzerland8 and
Germany,9 component states are permitted to exercise certain state
functions, including treaty-making. Normally, the states, even when acting
in their own name, do so as agents for the union.10 The US Constitution
enables the states of the Union to enter into agreements with other states
of the Union or with foreign states with the consent of Congress.11 But
this happens rarely if at all, and in most federations, old and new, the
federal government’s power to make treaties with foreign states is
exclusive.12 The position of the International Court, set out
in LaGrand and Avena, is that international obligations under the Vienna
Convention on Consular Relations (VCCR) must be fully observed
irrespective of constitutional limitations, and, though the means of
implementation remain for it to choose, the federal state incurs
responsibility for the wrongful acts of its subdivisions.13
(B) Entities Legally Proximate to States
Political settlements have from time to time produced entities, such as
the former Free City of Danzig, which, possessing a certain autonomy,
territory and population, and some legal capacities on the international
plane, are more or less like states. Politically such entities are not states
in the normal sense, yet legally the distinction is not very significant. The
treaty origin of the entity and the existence of some form of protection by
an international organization—the League of Nations in the case of
Danzig—matter little if, in the result, the entity has autonomy and a
nucleus of the more significant legal capacities, for example the power to
make treaties, to maintain
References
(p. 118) order and exercise jurisdiction within the territory, and to have an
independent nationality law. The jurisprudence of the Permanent Court
recognized that Danzig had international personality proximate to that of
a state, except insofar as treaty obligations created special relations in
regard to the League and to Poland.14Under Articles 100 to 108 of the
Treaty of Versailles, the League of Nations had supervisory functions and
Poland had control of the foreign relations of Danzig.15 The result was a
protectorate, the legal status and constitution of which were externally
supervised. To describe legal entities like Danzig as ‘internationalized
territories’16 is not very helpful since the phrase covers a number of
distinct entities and situations and elides the question of legal
personality.17
The point is that a special status may attach without the creation of a
legal person. An area within a state may be given a certain autonomy
under treaty without this leading to any degree of separate personality on
the international plane: this was the case with the Memel Territory, which
had a special status in the period 1924 to 1939 yet remained part of
Lithuania.18 Another type of regime, more truly international, involves
exclusive administration of a territory by an international organization: this
was the regime proposed for Jerusalem by the Trusteeship Council in
1950 but never implemented.19 In such a case no new legal person is
established except insofar as an agency of an international organization
may have a certain autonomy.
(C) Entities Recognized as Belligerents
In practice, belligerent or insurgent bodies within a state may enter into
legal relations and conclude agreements on the international plane with
states and other belligerents/ insurgents. Fitzmaurice has attributed
treaty-making capacity to ‘para-Statal entities recognized as possessing
a definite if limited form of international personality, for example,
insurgent communities recognized as having belligerent status—de facto
References
(p. 119) authorities in control of specific territory’.20 This statement is
correct as a matter of principle,21 but its application to particular facts
requires caution. A belligerent community often represents a political
movement aiming at secession: outside the colonial context, states have
been reluctant to accord any form of recognition in such cases, including
recognition of belligerency.22
(D) International Administration of Territories Prior to
Independence
In relation to territories marked out by the UN as under a regime of illegal
occupation and qualified for rapid transition to independence, an interim
transitional regime may be installed under UN supervision.23 Thus the
final phase of Namibian independence involved the UN Transition
Assistance Group, established by SC Resolution 435 (1978).24
In 1999 the long-drawn-out crisis concerning the illegal Indonesian
occupation of East Timor was the subject of decisive action by the
Security Council. SC Resolution 1272 (1999) established the UN
Transitional Administration in East Timor (UNTAET) with a mandate to
prepare East Timor for independence.25 UNTAET had full legislative and
executive powers and assumed its role independently of any competing
authority. After elections, East Timor (Timor-Leste) became independent
in 2002.26
Following the dissolution of the Socialist Federal Republic of Yugoslavia
(SFRY), civil war broke out in the disputed, previously self-governing,
territory of Kosovo, ending with NATO military intervention.27 The
Security Council in Resolution 1244 (1999) put in place the framework for
an interim civil administration, further elaborated by regulations of the UN
Mission in Kosovo (UNMIK). UNMIK regulation 2001/9 of 15 May 2001
set out a Constitutional Framework for Provisional Self-Government,
dividing administrative responsibilities between UN representatives and
the Provisional Institutions of Self-Government of Kosovo. Following
unsuccessful
References
(p. 120) negotiations between Serbia and Kosovo regarding final status,
on 17 February 2008 a declaration of independence of Kosovo was
adopted, giving rise to a request by the General Assembly for an advisory
opinion.28
On the one hand, the Court held, ‘[t]he Constitutional Framework derives
its binding force from the binding character of resolution 1244 (1999) and
thus from international law. In that sense it…possesses an international
legal character’.29 On the other hand ‘[t]he Constitutional Framework…
took effect as part of the body of law adopted for the administration of
Kosovo during the interim phase’,30 and it did not dispose of the territory
beyond that phase. SC Resolution 1244 (1999) could not be interpreted
as precluding all action aimed at resolving the impasse which the parties
beyond question had reached.31 Rather it was a matter for the UN
Special Representative or the Security Council to prohibit (or to condemn
after the fact) any unilateral declaration of independence. Neither had
done so. In the circumstances ‘the authors of that declaration did not act,
or intend to act, in the capacity of an institution created by and
empowered to act within that legal order but, rather, set out to adopt a
measure the significance and effects of which would lie outside that
order’.32There was thus no breach of the Constitutional Framework
either. Apparently, guarantees of international territorial administration go
only so far, as against claims to sovereignty.33 The status of Kosovo
remains unresolved.
(E) International Organizations
The conditions under which an organization acquires legal personality on
the international plane are examined in chapter 7. The most important
person of this type is the United Nations.
Entities, acting with delegated powers from states, may appear to enjoy a
separate personality and viability on the international plane.34 By
agreement states may create joint agencies with delegated powers of a
supervisory, rule-making, and even judicial character. Examples are the
administration of a condominium, a standing arbitral tribunal, the
International Joint Commission set up under an agreement concerning
boundary waters between Canada and the US and the former European
Commission
References
(p. 121) of the Danube.35 As the degree of independence and the legal
powers of the particular agency increase it will approximate to an
international organization.
(F) Individuals
There is no general rule that the individuals cannot be ‘subjects of
international law’, and in particular contexts individuals have rights inuitu
personae which they can vindicate by international action, notably in the
field of human rights and investment protection.36 At the same time to
classify the individual as a ‘subject’ of the law is unhelpful, since this may
seem to imply the existence of capacities which do not exist and does not
avoid the task of distinguishing between the individual and other types of
subject. Moreover while international human rights law recognizes a
variety of rights for individuals (and even corporations), the norms of
human rights law are not yet regarded as applying horizontally between
individuals, in parallel to or substitution for the applicable national law. To
the extent that some human rights instruments include provisions dealing
with individual responsibilities as well as rights, international law provides
no means for their enforcement. In practical terms, human rights (and
other obligations assumed for the benefit of individuals and corporations)
arise against the state, which so far has a virtual monopoly of
responsibility.37
3. Special Types of Personality
(A) Corporations, Public and Private
Reference to states and similar political entities, to organizations, and to
individuals does not exhaust the tally of entities active on the international
scene. Corporations, whether private or public, often engage in economic
activity in one or more states other than the state under the law of which
they were incorporated or in which they have their economic seat. The
resources available to the individual corporation may be greater than
those of the smaller states, and they may have powerful diplomatic
backing from their home government. Such corporations can and do
make agreements, (p. 122) including concession agreements, with
foreign governments.38 In this connection in particular, some have argued
that the relations of states and foreign corporations as such should be
treated on the international plane and not as an aspect of the normal
rules governing the position of aliens and their assets on the territory of a
state.39 In principle, however, corporations do not have international legal
personality. Thus a concession or contract between a state and a foreign
corporation is not governed by the law of treaties.40 The question will be
pursued further in chapter 24.
On the other hand conduct of corporations may sometimes be attributed
to the state for the purposes of responsibility, and separate statecontrolled entities may be able to plead state immunity before foreign
courts. It will not always be easy to distinguish corporations which are so
closely controlled by governments as to be state agencies for such
purposes. The conferral of separate personality under national law is not
conclusive of autonomy vis-à-vis the state for purposes of international
law.41
Important functions are performed today by bodies which have been
grouped under the labels ‘intergovernmental corporations of private law’
or ‘établissements publics internationaux’.42 The point is that states may
by treaty create legal persons whose status is regulated by the national
law of one of the parties. At the same time, the treaty may contain
obligations to create a privileged status under the national law or laws to
which the corporation is subjected. The parties by their agreement may
accord certain immunities to the institution created and confer on it
various powers. Where the independence from the national laws of the
parties is marked, the body concerned may simply be a joint agency of
the states involved, with delegated powers effective on the international
plane and with a privileged position vis-à-vis local law in respect of its
activities.43 Where there is, in addition to independence from national
law, a considerable quantum of delegated powers and the existence of
organs with autonomy in decision and rule-making, the body concerned
has the characteristics of an international organization. It is when the
institution created by treaty has a viability and special function which
render the description ‘joint agency’ inappropriate, and yet has powers
and privileges primarily within the national legal systems and jurisdictions
of the
References
(p. 123) various parties, that it calls for use of a special category. An
example of an intergovernmental enterprise of this kind is Eurofima, a
company set up by a treaty involving 14 states in 1955, with the object of
improving the resources of railway rolling stock. The treaty established
Eurofima as a corporation under Swiss law subject to certain
modifications.44 The parties agreed that they would recognize this
(Swiss) private law status, as modified by the treaty, within their own legal
systems. The corporation is international in function and the 14
participating railway administrations provide the capital. The corporation
is also given privileges on the international plane, including exemption
from taxation in Switzerland, the state of domicile. However, useful as the
category ‘établissements publics internationaux’ may be, it is not an
instrument of exact analysis, and does not reflect a distinct species of
international legal person. This type of arrangement is the product of a
careful interlocking of national and international legal orders on a treaty
basis, and the product will vary considerably from case to case.
(B) Non-Self-Governing Peoples
Quite apart from the question of protected status and the legal effect of
mandate or trusteeship agreements, it is probable that the populations of
‘non-self-governing territories’ within the meaning of Chapter XI of the
Charter have legal personality, albeit of a special type. This proposition
depends on the principle of self-determination (see chapter 29).
Furthermore, practice in the course of the anti-colonial campaign
conducted within the UN and regional organizations conferred legal
status upon certain national liberation movements.45Most of the peoples
represented by such movements have acquired statehood.
National liberation movements may, and usually do, have other roles,
as de facto governments and belligerent communities. Political entities
recognized as liberation movements have a number of legal rights and
duties, the more significant of which are as follows:
(a) In practice liberation movements have the capacity to
conclude binding international agreements with other international
legal persons.
(b) There are rights and obligations under the generally
recognized principles of humanitarian law. The provisions of the
Geneva Protocol I of 1977 apply to conflicts involving national
liberation movements if certain conditions are fulfilled.46
References
(p. 124) (c) The legal capacity of national liberation movements is
reflected in the right to participate in the proceedings of the UN as
observers, this right being conferred expressly in various GA
resolutions.47
(d) The designation of a non-self-governing people engaged in a
process of national liberation has implications for the colonial (or
dominant) power. Thus the colonial authorities do not have the
capacity to make agreements affecting the boundaries or status of
the territory which are opposable to the people concerned.48
(C) Entities Sui Generis
Whilst due regard must be had to legal principle, the law cannot ignore
entities which maintain some sort of existence on the international legal
plane in spite of their anomalous character. The role played by politically
active entities such as belligerent communities indicates that, in the
sphere of personality, effectiveness is an influential principle. As
elsewhere (and subject to compliance with any relevant peremptory
norm), acquiescence, recognition, and the incidence of voluntary bilateral
relations may prevail. Some special cases may be briefly considered.
In a Treaty and Concordat of 1929, Italy recognized ‘the Sovereignty of
the Holy See in the international domain’ and its exclusive sovereignty
and jurisdiction over the City of the Vatican.49 Numerous states recognize
the Holy See and have diplomatic relations with it and the Holy See is a
party to many treaties. Functionally, and in terms of its territorial and
administrative organization, the Vatican City is proximate to a state.
However, it has no population, apart from resident functionaries, and its
sole purpose is to support the Holy See as a religious entity. Some jurists
regard the Vatican City as a state but its special functions make this
doubtful. However, it is widely recognized as a legal person with treatymaking capacity.50 Its personality rests partly on its approximation to a
state, in spite of the peculiarities, including the patrimonial sovereignty of
the Holy See, and partly on acquiescence and recognition by existing
legal persons. More difficult is the question of the personality of the Holy
See apart from its territorial base in the Vatican City.51 Probably the
personality of political and
References
(p. 125) religious institutions of this type can only be relative to those
states prepared to enter into relations with them on the international
plane. Even in the sphere of recognition and bilateral relations, the legal
capacities of institutions like the Sovereign Order of Jerusalem and Malta
must be limited simply because they lack the territorial and demographic
characteristics of states.52
Two other political animals require classification. ‘Governments-in-exile’
may be accorded considerable powers within the territory of most states
and be active in various political spheres. Apart from voluntary
concessions by states and the use of ‘governments in exile’ as agencies
for unlawful activities against established governments and states, the
status of a ‘government-in-exile’ is consequential on the legal condition of
the community it claims to represent, which may be a state, belligerent
community, or non-self-governing people. Its legal status will be
established the more readily when its exclusion from the community of
which it is an agency results from acts contrary to a peremptory norm.53
Lastly, there is the case of territory title to which is undetermined, which is
inhabited and has an independent administration. Communities existing
on territory with such a status may be treated as having a modified
personality, approximating to that of a state. In one view, this is the
situation of Taiwan. Since 1972 the UK, like most other governments, has
recognized the Government of the People’s Republic of China (PRC) as
the sole government of China, and it acknowledges the position of the
PRC that Taiwan is a province of China.54 No government has managed
to sustain a recognition policy based on two Chinese states. The
question whether Taiwan is a ‘country’ may nevertheless arise within
particular legal contexts;55 it is also a ‘fishing entity’ for law of the sea
purposes,56 and as a separate customs territory it is a WTO
member.57 Though not recognized as a state, it has an international legal
identity.
References
(p. 126) 4. Conclusions
This survey should carry with it a warning against facile generalizations
on the subject of legal personality. In view of the complexity of
international relations and the absence of a centralized law of
corporations, it would be strange if the legal situation was simple or
uniform. The number of entities with personality for particular purposes is
considerable. Moreover, the tally of autonomous bodies increases if
agencies of states and organizations with a quantum of delegated
powers are taken into account. The listing of candidates for personality,
as characters to be encountered in the practice of international law and
relations, has a certain value. Yet such a procedure has its pitfalls. In the
first place, a great deal depends on the relation of the particular entity to
the various aspects of the substantive law. Thus individuals are in certain
contexts regarded as legal persons, yet it is obvious that they cannot
make treaties, nor (if only because of lack of any available forums) can
they be subjected to international claims—outside the limited field of
international criminal law applicable in international tribunals.
The context remains paramount. Further, subject to the operation of
peremptory norms, the institutions of acquiescence and recognition have
been active in sustaining anomalous relations. Finally, the intrusion of
agency and representation has created problems both of application and
of principle. Thus it is not always easy to distinguish a dependent state
with its own personality from a subordinate entity with no independence,
a joint agency of states from an organization, or a private or public
corporation under some degree of state control from the state itself.
Given the breadth and occasional vagueness of the concept of ‘subjects
of international law’ (and the complete disappearance of the term
‘objects’, whose only function was denial of status)58 it has been asked
whether the concept has any value.59 The answer must be in the
affirmative. It matters whether an entity has direct access to international
forums; it matters whether an entity is directly bound by the body of
general international law. On the other hand, being so bound is a
constraint that most entities such as INGOs do not need. States and
international organizations, and by inference other subjects, are bound
not to intervene in the domestic jurisdiction of another state (see
chapter 20). The whole point of an NGO may be to do just that, in the
pursuit of its aims. The ‘international plane’ is a construct, not a place—
but it remains an arena to which, in most circumstances, one needs a
ticket.
Footnotes:
1
Especially Lauterpacht, 2 International Law (1975) 487; Barberis
(1983) 179 Hague Recueil 145; Higgins, Problems and Process(1994)
39–55; Nijman, The Concept of International Legal
Personality(2004); Crawford, Creation of States (2nd edn, 2006) 28–33;
Portmann, Legal Personality in International Law (2010).
2
Reparation for Injuries Suffered in the Service of the United Nations,
ICJ Reports 1949 p 174, 179.
3
For the ILC’s rejection of the concept of ‘delictual capacity’ in the
context of state responsibility: ILC Ybk 1998/I, 1, 31, 196.
4
5
Reparation for Injuries, ICJ Reports 1949 p 174.
ILC Ybk 1962/II, 31, 32, 35, 37. Also: Brierly, ILC Ybk 1950/II, 230;
Lauterpacht, ILC Ybk 1953/II, 96; Fitzmaurice, ILC Ybk 1956/II, 117–18;
1958/II, 24, 32; Waldock, ILC Ybk 1962/II, 31, 35–7. At a later stage the
Commission decided to confine the draft articles to the treaties of states:
ILC Ybk 1965/II, 18; 1966/II, 187, Art 1, commentary. Instead a separate
treaty was concluded, modelled on the VCLT: Convention on the Law of
Treaties between States and International Organizations or between
International Organizations, 12 March 1986, 25 ILM 543.
6
E.g. Agreement between the International Committee of the Red Cross
and the Swiss Federal Council to Determine the Legal Status of the
Committee in Switzerland, 19 March 1993, GA Res 45/6, 16 October
1990, Rules of Procedure and Evidence for the Application of the Rome
Statute of the International Criminal Court, Art 73; Prosecutor v
Simić (1999) §46, available
at www.icty.org/x/cases/simic/tdec/en/90727EV59549.htm.
7
Friedmann, The Changing Structure of International Law (1964) 67,
quoting Jessup, A Modern Law of Nations (1948) 17. Cf Anghie (1999)
40 Harv ILJ 1, 2; Cassese, International Law (2nd edn, 2005) 71.
8
Jenni v Conseil d’État (1978) 75 ILR 99. The Swiss Cantons may
‘conclude treaties with foreign countries within the domain relevant to
their competencies’ but these ‘may not be contrary to the law and
interests of the Federation nor to the rights of other Cantons’: Swiss
Constitution (as amended, entered into force 1 January 2000) Art 56.
9
German Constitution, Art 32(3); Lindau Agreement regarding the
Treaty Making Power of the Federation, 14 November 1957:
(1957) Bulletin des Bundesregierung 1966.
10
Waldock, ILC Ybk 1962/II, 31, 36–7; Wildhaber, Treaty-Making Power
and Constitution (1971); Uibopuu (1975) 24 ICLQ 811; Di
Marzo, Component Units of Federal States and International
Agreements (1980) 48–9; Hocking, Foreign Relations and Federal
States (1993); Opeskin (1996) 43 NILR 353; Rudolf, ‘Federal States’
(2007) MPEPIL; Grant, in Hollis (ed), Oxford Guide to Treaties (2012) ch
6.
11
Constitution Art I (10)(3); 1 Restatement Third, §302(f); Hollis (2010)
88 Texas LR 741.
12
The Australian federal executive has exclusive power to enter into
treaties, which the federal Parliament can implement by legislation under
the ‘external affairs’ power: Koowarta v Bjelke-Petersen (1982) 68 ILR
181; Commonwealth v Tasmania (1983) 68 ILR 266; Queensland v
Commonwealth (1989) 90 ILR 115; Victoria v Commonwealth (1996) 187
CLR 416. In Canada, s132 of the Constitution Act 1867 (UK) vests the
power to make treaties in the federal government, but the federal
Parliament cannot legislate to implement in domestic law treaties falling
within areas of provincial jurisdiction. See Attorney-General for Canada v
Attorney-General for Ontario and Others [1937] AC 326.
13
LaGrand (Germany v US), ICJ Reports 2001 p 466, 514; Avena and
Other Mexican Nationals (Mexico v US), ICJ Reports 2004 p 12, 65–6.
14
E.g. Free City of Danzig and the ILO (1930) PCIJ Ser B No 18; Polish
Nationals in Danzig (1932) Ser A/B No 44, 23–4. Germany occupied the
Free City in 1939 and since 1945 the area has been part of Poland.
15
Treaty of Peace, 28 June 1919, 225 CTS 188. On Danzig see further
Crawford (2nd edn, 2006) 236–41; Stahn, The Law and Practice of
International Territorial Administration (2008) 173–85.
16
Ydit, Internationalized Territories (1961); Verzijl, 2 International Law in
Historical Perspective (1970) 500–2, 510–45. A more recent label—
hardly more informative—is ‘international territorial administration’, of
which the type-case is Kosovo under SC Res 1244 (1999): e.g.
Wilde, International Territorial Administration (2008) 114–27.
17
The Italian Peace Treaty of 1947 provided for the creation of a Free
Territory of Trieste with features broadly similar to those of the Free City
of Danzig, but placed under the direct control of the UN Security Council.
The Permanent Statute of Trieste was not implemented: the
administration of the territory was divided by agreement in 1954 and the
partition made definitive by the Treaty of Osimo, 1 October 1975, 1466
UNTS 25; Crawford (2nd edn, 2006) 235–6.
18
Interpretation of the Statute of the Memel Territory (1932) PCIJ Ser
A/B No 49, 313. Cf the complex legal status of the International Zone of
Tangier, wound up in 1956: Gutteridge (1957) 33 BY 296; Ydit (1961)
154–84.
19
GA Res 181(II), 29 November 1947. Further: Ydit (1961) 273–
314;Cassese (1986) 3 Palestine YIL 13; Hirsch, Housen-Couriel &
Lapidoth, Whither Jerusalem? (1995); Stahn (2008) 99–102.
20
20
ILC Ybk 1958/II, 24, 32; Fitzmaurice (1957) 92 Hague Recueil 5, 10.
The draft articles on the law of treaties as initially adopted referred to
‘States or other subjects of international law’: ILC Ybk 1962/II, 161. This
was intended to cover the case of insurgents.
21
McNair, Law of Treaties (1961) 676; Kelsen, Principles of International
Law (2nd edn, 1967) 252. Further: Chen, The International Law of
Recognition (1951) 303–6; Crawford (2nd edn, 2006) 380–2.
22
Under ARSIWA, Art 10, successful insurgents may be responsible
(qua government of the old or new state, as the case may be) for conduct
of the insurgent movement, but this is a rule of attribution, not a
retrospective recognition of legal personality. Cf Cahin, in Crawford,
Pellet & Olleson (eds), The Law of International Responsibility (2010)
247–55; Zegveld (2002) 160–4; and further: chapter 25.
23
Generally: Chesterman, You, The People: The United Nations,
Transitional Administration and State-Building(2004); Knoll, The Legal
Status of Territories subject to Administration by International
Organisations (2008); Ronen, Transition from Illegal Regimes under
International Law (2011).
24
See Berat, Walvis Bay: Decolonization and International Law (1990);
Ronen (2011) 38–46.
25
SC Res 1272 (1999). Further: Drew (2001) 12 EJIL 651.
26
SC Res 1414 (2002); GA Res 57/3, 27 September 2002, admitting the
Democratic Republic of Timor-Leste to UN membership.
27
S/1999/648.
28
GA Res 63/3, 8 October 2008.
29
Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, Opinion of 22 July 2010, §§88–9.
30
Ibid, §§89, 99–100.
31
Ibid, §§114–15, 118–19, and for the impasse in negotiations see the
Ahtisaari Report: S/2007/168, 2 February 2007.
32
33
Ibid, §105.
33
For criticism: e.g. Kohen & LaMar (2011) 24 LJIL 109. Further on
Kosovo see Weller, Contested Statehood (2009). Generally on
secession: chapter 5.
34
See Fitzmaurice, ILC Ybk 1952/II, 118. On the role of the chartered
companies such as the English East India Company and the Dutch East
India Company: McNair, 1 Opinions 41, 55; Island of Palmas (1928) 2
RIAA 829, 858–9.
35
Baxter, The Law of International Waterways (1964) 103–7, 126–9.
36
Parlett, The Individual in the International Legal System (2011). See
also chapters 28 (investment arbitration), 29 (human rights).
37
Similar considerations apply to international non-governmental
organizations (INGOs), some of whom—e.g. Greenpeace, Medecins
sans Frontières, Amnesty International—have become very influential,
but without the need to claim international legal personality:
Lindblom, Non-Governmental Organizations in International Law (2005);
Dupuy & Vierucci (eds), NGOs in International Law (2008).
38
E.g. the Channel Tunnel Concession of 1986 between an AngloFrench consortium and the British and French governments, analysed
in Eurotunnel (2007) 132 ILR 1, 51–5.
39
Seidl-Hohenveldern, Corporations in and under International
Law (1987) 12–14. For a particularly egregious example: Sandline v
Papua New Guinea (1998) 117 ILR 552.
40
Waldock, ILC Ybk 1962/II, 32. Cf Anglo-Iranian Oil Co (UK v Iran),
Jurisdiction, ICJ Reports 1952 p 93, 112; SGS v Philippines (2004) 8
ICSID Reports 518, 553.
41
McNair, 2 Opinions, 39. See Noble Ventures v Romania, 12 October
2005, §§68–86, available at www.italaw.com.
42
Sereni (1959) 96 Hague Recueil 169;Goldman (1963) 90 JDI 321;
Friedmann (1964) 181–4, 219–20; Adam, 1–4 Les Organismes
internationaux spécialisés (1965–77); Angelo (1968) 125
Hague Recueil 482; Salmon, Dictionnaire (2001) 453, 1029.
43
The treaty concerned may result in legal personality under the
national law of the parties. See Vigoureux v Comitédes Obligataires
Danube-Save-Adriatique(1951) 18 ILR 1. For the Bank for International
Settlements prior to its restructuring in 1993: Bederman (1988)
6 ITBL 92;Tarin (1992) 5 Trans L 839; Reineccius v Bank of International
Settlements (2003) 140 ILR 1.
44
Convention on the Establishment of ‘Eurofima’, European Company
for the Financing of Railway Equipment, 20 October 1955, 378 UNTS
159.
45
Wilson, International Law and the Use of Force by National Liberation
Movements (1988); Ranjeva, in Bedjaoui (ed), International Law (1991)
107–10; David, Principes de Droit des Conflits Armés (2nd edn, 1999)
195–8; Younis, Liberation and Democratization (2000).
46
Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed Conflicts
(Protocol I), 8 June 1977, 1125 UNTS 3, Arts 1(4), 96(3).
47
Thus the Palestine Liberation Organization was granted observer
status in GA Res 3237(XXIX), 22 November 1974, granted the right to
circulate communications without the need for an intermediate in GA Res
43/160, 9 December 1988, designated ‘Palestine’ in GA Res 43/77, 15
December 1988, and granted the right to participate in debate and certain
additional rights in GA Res 52/250, 7 July 1998. Further: Kassim (1980)
9 DJILP 1; Shaw (1984) 5 LLR 19.
48
See Delimitation of the Maritime Boundary between Guinea-Bissau
and Senegal (1989) 83 ILR 1, 25–30; Kasikilili/Sedudu Island
(Botswana/Namibia), ICJ Reports 1999 p 1045, 1091–2.
49
Lateran Pacts, Treaty of Conciliation, 11 February 1929, 130 BFSP
791. See Duursma, Fragmentation and the International Relations of
Micro-States (1996) 374–419. Further: Kunz (1952) 46 AJIL 308; 2 Verzijl
(1970) 295–302, 308–38; Crawford (2nd edn, 2006) 221–33.
50
Fitzmaurice, ILC Ybk, 1956/II, 107, 118; State of the Vatican City v
Pieciukiewicz (1982) 78 ILR 120; Re Marcinkus, Mennini & De
Strebel (1987) 87 ILR 48; Holy See v Starbright Sales (1994) 102 ILR
163.
51
The problem of personality divorced from a territorial base is difficult to
isolate because of the interaction of the Vatican City, the Holy See, and
the Roman Catholic Church: Duursma (1996) 386–96.
52
In the law of war the status of the Order is merely that of a ‘relief
society’ within the meaning of Geneva Convention III, 12 August 1949, 75
UNTS 135, Art 125. Cf Prantner, Maltesorden und
Völkergemeinschaft (1974), reviewed by O’Connell (1976–77)
48 BY 433; Theutenberg, The Holy See, the Order of Malta and
International Law (2003).
53
Talmon, Essays in Honour of Ian Brownlie (1999) 499; and generally
Talmon, Recognition of Governments in International Law (1998) 113–
268.
54
Official statements reported in (1986) 57 BY 509, 512; (1991)
62 BY 568; (1995) 66 BY 618, 620–1; Additional Articles to the
Constitution of China, 25 April 2000, Art 11; White Paper Taiwan Affairs
Office and the Information Office of the State Council 21 February 2000,
‘The One-China Principle and the Taiwan Issue’; Anti-Secession Law of
PRC, 14 March 2005. Also: Crawford (2nd edn, 2006) 197–221; Freund
Larus (2006) 42 Issues & Studies 23.
55
E.g. Reel v Holder (1981) 74 ILR 105, noted (1981) 52 BY 301.
56
Serdy (2004) 75 BY 183.
57
Marrakesh Agreement establishing the WTO, 15 April 1994, 1867
UNTS 3, Art XII; Cho, Taiwan’s Application to GATT/WTO (2002);Mo
(2003) 2 Chin JIL 145; Hsieh (2005) 39 JWT 1195.
58
Oppenheim, International Law (1st edn, 1905) 344–5 (individuals
classed as ‘objects’ alongside rivers, canals, lakes, straits, etc).
59
E.g. Higgins (1994) 49–50.
(p. 127) 5 Creation and Incidence of Statehood
1. Introduction
As noted in chapter 4, the state is a type of legal person recognized by
international law. Yet, since there are other types of legal persons so
recognized, the possession of legal personality is not in itself a sufficient
mark of statehood. Moreover, the exercise of legal capacities is a normal
consequence, rather than conclusive evidence, of legal personality: a
puppet state may have all the paraphernalia of separate personality and
yet be little more than an agency for another power. It is sometimes said
that statehood is a question of fact, meaning that it is not a question of
law.1 However, as lawyers are usually asking if an entity is a state with a
specific legal claim or function in view, it is pointless to confuse issues of
law with the difficulties of applying the legal principles to the facts and of
discovering the key facts in the first place. The criteria of statehood are
laid down by the law. If it were not so, then statehood would produce the
same type of structural defect that has been detected in certain types of
doctrine concerning nationality. In other words, a state would be able at
its own unfettered discretion to contract out of its obligations under
international law simply by refusing to characterize the other party as a
state. A readiness to ignore the law may be disguised by a plea of
freedom in relation to a key concept, determinant of many particular
rights and duties, like statehood or nationality. To some extent this
position anticipates the results of the examination of recognition in
chapter 6. Nevertheless, as a matter of presentation the question
whether recognition by one or more other states is a determinant (as
mandated by the ‘constitutive theory’ of recognition) will be ignored in the
present chapter. The subject of state succession is also excluded from
this discussion: the subject-matter conventionally described by that label
is considered in chapter 19.
Despite the importance of the subject-matter, the literature is rather
uneven.2 Three factors have contributed to this. First, though the subject
is important as a matter of (p. 128) principle, the issue of statehood does
not often raise long-standing disputes. Secondly, much of the literature is
devoted to broad concepts of sovereignty and equality of states and
gives prominence to incidents of statehood rather than its origins and
continuity. Finally, many rifts in relations between particular states
concern issues of government rather than statehood.
2. Legal Criteria of Statehood
Article I of the Montevideo Convention on Rights and Duties of States
provides: ‘The State as a person of international law should possess the
following qualifications: (a) a permanent population; (b) a defined
territory; (c) government; and (d) capacity to enter into relations with the
other States.’3 This brief enumeration is oft en cited,4 but it is no more
than a basis for further investigation. Not all the conditions are necessary,
and in any case further criteria must be employed to produce a working
definition.5
(A) Population
The Montevideo Convention refers to ‘a permanent population’. This
criterion is intended to be used in association with that of territory, and
connotes a stable community. Evidentially this is important, since in the
absence of the physical basis for an organized community, it will be
difficult to establish the existence of a state.
(B) Defined Territory
There must be a reasonably stable political community and this must be
in control of a certain area. It is clear that the existence of fully defined
frontiers is not required and that what matters is the effective
establishment of a political community.6 In 1913
References
(p. 129) Albania was recognized by a number of states in spite of a lack
of settled frontiers,7 and Israel was admitted to the UN in spite of
8
disputes over its borders.8
There is no fixed lower limit either of population or territory, and some
recognized states have tiny quantities of both. At one time it was thought
that the UN admission of ‘micro-states’, in particular the European microstates of Liechtenstein, San Marino, Monaco, and Andorra, was
precluded because of their size, but the principle of universality of UN
membership prevailed. In the 1990s, all were admitted to membership—
in the case of Andorra aft er significant reforms which removed doubts as
to its independence from France and Spain.9
(C) Government
The shortest definition of a state for present purposes is perhaps that it is
a stable political community supporting a legal order to the exclusion of
others in a given area. The existence of effective government, with
centralized administrative and legislative organs, is the best evidence of
a stable political community.10However, effective government is in certain
cases either unnecessary or insufficient to support statehood. Some
states have arisen before government was very well organized, as, for
example, Poland in 191911 and Burundi and Rwanda, admitted to the UN
in 1962.12 The principle of self-determination—also discussed in
chapter 29—was once commonly set against the concept of effective
government, more particularly when the latter was used as an argument
for continued colonial rule. The relevant question has become, instead, in
whose interest and for what legal purpose is government ‘effective’?
Once a state has been established, extensive civil strife or the
breakdown of order through foreign invasion or natural disasters are not
considered to affect personality. Nor is effective government sufficient,
since this leaves open the questions of independence and representation
by other states, discussed below.
(D) Independence
In the Montevideo Convention’s enumeration, the concept of
independence is represented by the requirement of capacity to enter into
relations with other states. Independence is the decisive criterion of
statehood.13Guggenheim distinguishes the (p. 130) state from other legal
orders by means of two tests which he regards as quantitative rather than
qualitative.14 First, the state has a degree of centralization of its organs
not found elsewhere. Secondly, in a particular area the state is the sole
executive and legislative authority. In other words the state must be
independent of other state legal orders, and any interference by such
legal orders, or by an international agency, must be based on a title of
international law.
In the normal case independence as a criterion may create few problems.
However, there are sources of confusion. In the first place, independence
may be used in close association with a requirement of effective
government,15 leading to the issues considered earlier. Again, since a
state is, in part, a legal order, there is a temptation to rely on formal
criteria. Certainly, if an entity has its own executive and other organs,
conducts its foreign relations through its own organs, has its own system
of courts and legal system, and a nationality law of its own, then there is
strong evidence of statehood. However, there is no justification for
ignoring foreign control exercised in fact through the ostensibly
independent machinery of state. But the emphasis is on
foreign control overbearing the decision-making of the entity concerned
on a wide range of matters and doing so systematically and on a
continuing basis. The practice of states has been to ignore—so far as
issues of statehood are concerned—forms of political and economic
blackmail and interference directed against weaker members. Further
there is a distinction between agency and control, on the one hand, and
ad hoc interference and ‘advice’, on the other.16
(i) ‘Dependent States’
Foreign control of the affairs of a state may occur under a title of
international law, for example as a consequence of a treaty of protection,
or some other form of consent to agency or representation in external
relations, or of a lawful war of collective defence and sanction leading to
an occupation and imposition of measures designed to remove the
sources of aggression. Allied occupation of Germany under the Berlin
Declaration of 5 June 1945 is an example of the latter: supreme authority
was assumed in Germany by the Allies jointly.17 Providing that the
representation and agency exist in fact and in law, then there is no formal
difficulty in saying that the criterion of independence is (p. 131) satisfied.
Unfortunately, writers have created confusion by rehearsing
independence as an aspect of statehood and then referring to ‘dependent
states’, which are presented as an anomalous category.18 Here the
incidents of personality are not sufficiently distinguished from its
existence. The term ‘dependent’ is used to indicate the existence of one
or more of the following distinct situations:
(1) the absence of statehood, where the entity concerned is
subordinated to a state so completely as to be within its control
(and the origin of the subordination does not establish agency or
representation);
(2) a state which has made concessions to another state in
matters of jurisdiction and administration to such an extent that it
has in some sense ceased to be sovereign;19
(3) a state which has legally conferred wide powers of agency and
representation in foreign affairs on another state;20
(4) a state, which in fact suffers interference from another state
and may be a ‘client’ state politically, but which quantitatively is not
under the complete and permanent control of the ‘patron’;
(5) a legal person of a special type, appearing on the international
plane for certain purposes only, as in the case of mandated and
trust territories and some protectorates.
The category of independence (or sovereignty used synonymously) can
only be applied concretely in the light of the legal purpose with which the
inquiry is made and the particular facts. In Austro-German Customs
Union21the Permanent Court was asked whether the proposed customs
union was contrary to the obligations of Austria under a Protocol of 1922
‘not to alienate its independence’ and to ‘abstain from any negotiations or
from any economic and financial engagement calculated directly or
indirectly to compromise this independence’.22 By a majority of eight to
seven the Court held that the customs regime contemplated would be
incompatible with these obligations. Here the term ‘independence’
referred to a specialized notion of economic relations in a treaty, and the
obligations were not confined to abstention from actual and complete
alienation of independence. In Nationality Decrees the Permanent Court
emphasized that protectorates have ‘individual legal characteristics
resulting from the special
References
(p. 132) conditions…under which they were created, and the stage of
their development’.23 A protected state may provide an example of
international representation which leaves the personality and statehood
of the entity represented intact, though from the point of view of
the incidents of personality the entity may be ‘dependent’ in one or more
of the senses noted above. In US Nationals in Morocco the International
Court, referring to the Treaty of Fez and the creation of a French
protectorate in 1912, stated: ‘Under this Treaty, Morocco remained a
sovereign State but it made an arrangement of contractual character
whereby France undertook to exercise certain sovereign powers in the
name and on behalf of Morocco, and, in principle, all of the international
relations of Morocco’.24 In fact it appears that the relation was one of
subordination and not agency.
Another aspect of dependency emerges in the context of former colonies.
Postcolonial dependency has been analysed in the general framework of
development economics and public administration. With regard to the
latter, the colonial analogy is manifested in a state or other territorial unit
being placed under partial or full administration by an international
organization, thereby losing control over some or all aspects of
governance and becoming dependent on the administrator.25 The
discourse of development, on the other hand, created a scalar system of
states—dividing states into ‘developed’ or ‘developing’—secured by
positing an ostensibly universally attainable end point in the status of
‘developed’. This division made it possible for the West to mediate the
potentially disruptive effects of formal sovereign equality and prevent it
from leading to substantive equality. The economic institutions created
the possibility for ongoing surveillance and interventions to transform
‘developing’ states.26 Numerous ‘developing’ states are reliant on foreign
aid and loans from institutions such as the World Bank and the UN
Development Programme. The economic assistance programmes usually
have conditions attached to them. The conditions can relate, for example,
to the use of the money, to the recipient’s policies on matters such as
human rights, expropriation, or democratization. The recipient has little
choice but to comply if it wants to gain and retain access to these funds.
Such ‘developing’ states
References
(p. 133) are reliant on foreign resources and consequently prone to
influence and interferences by the ‘developed’ world.
It has been suggested that some of the post-colonial states have ‘failed’
and now require supervision by the international community or select
states. Brooks has even argued that post-colonial states ‘rarely
possessed the attributes of robust states in anything other than a purely
formal legal sense’.27 To address the problem of ‘failed states’, Helman
and Ratner proposed ‘United Nations Conservatorship’, envisaging three
options whereby the UN ‘manages the affairs’ of the ‘failed state’.28 Pfaff
declared that ‘[m]uch of Africa needs, to put it plainly, what one could call
a disinterested neocolonialism’ and suggested that the European Union
should ‘collectively assume such responsibilities in cooperation with
Africans in an effort to arrest the conti-nent’s decline and put it on a
progressive course’.29 This remains a minority position. Moreover, some
African states are exhibiting solid growth and poverty reduction,
supporting the view that the causes of the persistence of severe poverty,
and hence the key to its eradication, lie within those countries
themselves.30
A different side of post-colonial dependency is exhibited by the fact that
some states elect to stay associated with the former colonial power.
Guam is an American dependency, Aruba is part of the Kingdom of the
Netherlands, the British Virgin Islands is a Crown Colony, and Anguilla is
an ‘associated state’ of Britain. In these cases local authorities are
responsible for most internal affairs, while ‘parent’ states are responsible
for defence and external relations.31
(ii) Associations of states
Independent states may enter into forms of co-operation by consent and
on an equal footing. The basis for the co-operation may be the
constitution of an international organization, such as the UN or the World
Health Organization. However, by treaty or custom other structures for
maintaining co-operation may be created. One such structure, the
confederation, has in practice either disintegrated or been transformed
into a federation. Membership does not affect the legal capacities and
personality of member states any more than membership of an
organization and has less effect than membership of some organizations,
for example, the European Union, which has a certain federal element,
albeit on a treaty basis.32
References
(p. 134) (E) A Degree of Permanence33
If one relies principally on the concept of a stable political community, it
might seem superfluous to stipulate for a degree of permanence. Time is
an element of statehood, as is space. However, permanence is not
necessary to the existence of a state as a legal order, and a state which
has only a very brief life may nevertheless leave an agenda of
consequential legal questions on its extinction.34
(F) Willingness to Observe International Law
In the modern literature, this is not oft en mentioned as a criterion, and it
has been subjected to trenchant criticism.35 Delictual and other
responsibilities, even though no longer exclusive to states, are
consequences of statehood, and it is indefensible to express as a
criterion of statehood a condition which the entity can only
accept because it is a state.
A more fundamental issue is whether some degree of ‘civilization’ is
inherent in statehood. For example Hyde adds a further criterion: ‘the
inhabitants must have attained a degree of civilization, such as to enable
them to observe…those principles of law which are deemed to govern
the members of the international society in their relations with each
other’.36 However, it is usually omitted from enumerations of criteria and
is redolent of the period when non-European states were not accorded
equal treatment by the European Concert.37
(G) Sovereignty38
The term ‘sovereignty’ may be used as a synonym for independence, an
important element in statehood considered already. However, a common
source of confusion lies in the fact that ‘sovereignty’ may be used to
describe the condition where a state has not exercised its own legal
capacities in such a way as to create rights, powers, privileges, and
immunities in respect of other states. In this sense a state which has
consented to another state managing its foreign relations, or which has
granted extensive extra-territorial rights to another state, is not
‘sovereign’. If this or a similar content is given to ‘sovereignty’ and the
same ideogram is used as a criterion of (p. 135) statehood,39 then the
incidents of statehood and legal personality are once again confused with
their existence. Thus the condition of Germany after 1945 involved a
considerable diminution of German sovereignty in this sense, and yet
Germany continued to exist as a state. Considerations of this sort have
led some to reject sovereignty as a criterion.40
An alternative approach is that of the International Court in US Nationals
in Morocco, where the judgment described Morocco as a ‘sovereign
State’, meaning that it had maintained its basic personality in spite of the
French protectorate.41 It would be possible for a tribunal to hold that a
state which had granted away piecemeal a high proportion of its legal
powers had ceased to have a separate existence as a consequence. But
it may be difficult to distinguish granting away of capacities and the
existence of agency or representation, and there is a strong presumption
against loss of status.
(H) Function as a State
Experience has shown that entities may exist which are difficult to regard
as states but which have a certain, even considerable international
presence. The Treaty of Versailles of 1919 created the Free City of
Danzig, which had the legal marks of statehood in spite of the fact that it
was placed under the guarantee of the League of Nations and Poland
42
had the power to conduct its foreign relations.42 The Italian Peace Treaty
of 1947 provided for the creation of the Free Territory of Trieste, which
was to be placed under the protection of the Security Council.43 The type
of legal personality involved in these two cases is a congener of
statehood, and it is the specialized political function of such entities, and
their relation to an organization, which inhibits use of the category of
statehood.
(i) States in statu nascendi
A political community with considerable viability, controlling a certain area
of territory and having statehood as its objective, may go through a
period of travail before that objective has been achieved. In any case,
since matters such as definition of frontiers and effective government are
not looked at too strictly, the distinction between entities in statu
nascendi and statehood cannot be very readily upheld.44 States not
References
(p. 136) infrequently first appear as independent belligerent entities under
a political authority which may be called, and function effectively as, a
provisional government. Once statehood is firmly established, it is
justifiable, both legally and practically, to assume the retroactive
validation of the legal order during a period prior to general recognition as
a state, when some degree of effective government existed. Leaving
questions of state succession on one side, the principle of effectiveness
dictates acceptance, for some legal purposes at least, of continuity
before and after statehood is firmly established.45
In particular, the principle of self-determination may justify the granting of
a higher status to certain types of belligerent entities and exile
governments than would otherwise be the case. In exceptional
circumstances, a people may be recognized by the international
community, and by interested parties, as having an entitlement to
statehood, and thus as being a state in statu nascendi. Normally, this
transitional status leads, without too much delay, to independence under
the auspices of the UN. However, in the case of the Palestinian people,
there has been an eccentric bilateral process in which the question of
statehood has been in issue between the government of Israel and the
Palestine Liberation Organization (PLO),46 which, in turn, has given rise
to problems in multilateral institutions.47 The Palestine question is
considered below.
3. Some Issues of Statehood
Three major situations affecting world order provide insight into the
issues of statehood in our time.
(A) Germany since 194548
The termination of hostilities against the German Reich in June 1945
coincided with the disappearance of effective national government in its
territory.49 In response, the
References
(p. 137) Allied Powers assumed ‘supreme authority with respect to
Germany’, under which an Allied Control Council took the place of the
German government.50 Though the Allies affirmed the integrity of
Germany in principle, they divided the country into four Zones of
Occupation, and, instead of a single central government, the
Commanders-in-Chief of the Four Powers acted separately in each Zone
and jointly only with respect to ‘Germany as a whole’. Difficult questions
of interpretation arose for the courts of the states involved in zonal
administration.51 As for the subject-matter of joint administration, this
was, evidently, a residue of the general governmental functions and of
the rights and responsibilities of the one state which had existed as at the
time of capitulation, though there, too, the arrangement was unusual and
tended to defy formal categorization. That some authority was reserved
under the rubric of ‘Germany as a whole’ was suggested in various
instruments,52but the primacy of the separate zonal administrations
remained, and it was from them that the post-war configuration of
Germany emerged.
In particular, the failure of the four Powers to implement the Potsdam
Agreement regarding reunification opened the way to the evolution of two
separate governmental units—one in the Soviet Zone, one in the three
Western Zones. The Federal Republic of Germany (FRG) began as a
subordinate government of the Western Allies in their Zones, from 23
May 1949, though they quickly adopted the view that this was no mere
delegate. Their Declaration of 19 December 1950 indicated as follows:
‘The Three Governments consider that the Government of the Federal
Republic is the only German Government freely and legitimately
constituted and therefore entitled to speak for the German people in
international affairs.’53 A Tripartite Convention on Relations of 26 May
1952 enlarged the authority of the Federal Republic, though this was not
an unlimited authority: the three Western Allies retained ‘the rights and
responsibilities, heretofore exercised or held by them, relating to Berlin
and to Germany as a whole, including the reunification of Germany and a
peace settlement.’54 Soviet recognition of the FRG on 13 September
195555 retrospectively validated what was otherwise a series of ultra
vires acts, for no Ally or group of Allies, save the four as a whole, had
had the competence to relinquish quadripartite authority.56
The Soviet Union, in response to developments in the Western Zones, on
7 October 1949 declared the establishment of a German Democratic
Republic (GDR). A treaty of 20 September 1955 indicated that the GDR
held general freedom of action in respect of ‘domestic and foreign policy,’
reserving for the USSR the ‘obligations of the Soviet
References
(p. 138) Union and of the GDR under existing international agreements
relating to Germany as a whole.’57 The Western Allies resisted these
developments. The principal arguments which they set out against the
statehood of the GDR were (a) that the absence of general recognition of
the GDR was a fundamental infirmity (even though this was a position
already largely untenable by the 1950s); (b) that the lack of democratic
institutions prevented the GDR from attaining independence; (c) that the
GDR was subordinate to the USSR; and (d) that the putative
independence of the GDR was in breach of the self-determination of
‘Germany as a whole.’58Whatever the legal characterization of the
process by which the GDR became consolidated as a state, its statehood
eventually received general recognition. This was through a series of
transactions, in particular a Non-Aggression Treaty between the FRG
and the USSR of 12 August 1970, in which the frontier between the two
German states was affirmed;59 and a Treaty on the Basis of InterGerman Relations between the FRG and GDR of 21 December 1972 in
which each acknowledged that neither ‘can represent the other in the
international sphere or act on its behalf ’.60 The Four Powers declared
their acceptance of separate UN membership on 9 November
1972,61 and the two German states were admitted unopposed the next
year.62
It is clear enough that the Four Powers, in 1990, relinquished their
remaining joint powers in respect of ‘Germany as a Whole’,63 including,
concretely, what remained of their territorial rights in Berlin, the eastern
sector of which the Western Powers had never accepted as integral to
the GDR.64 But, by the same provision of the final settlement, ‘the united
Germany shall have accordingly full sovereignty over its internal and
external affairs,’65 which suggests a reversion of authorities and
responsibilities, rather than their disappearance. So, while the two
Germanies after 1945 were in some sense successor states,66 a strong
element of continuity persisted to 1990, and was thereaft er reaffirmed in
the form of the Federal Republic.
(B) Palestine
Since 1945 there has been a consolidation of the view that statehood is a
question of law rather than just fact. Peremptory norms have influenced
this process, but it has (p. 139) nonetheless been highly politicized in
particular cases, the Israel–Palestine conflict presenting an acute
example.67
The agenda between the government of Israel and the PLO has, since
1993, included ‘the permanent status negotiations’, which were (it was
assumed) to lead to an independent Palestinian state. Article I of the
Oslo Accords of 199368 provided as follows:
The aim of the Israeli-Palestinian negotiations within the current Middle East peace
process is, among other things, to establish a Palestinian Interim Self-Government
Authority, the elected Council (the ‘Council’), for the Palestinian people in the West Bank
and the Gaza Strip, for a transitional period not exceeding five years, leading to a
permanent settlement based on Security Council Resolutions 242 and 338. It is
understood that the interim arrangements are an integral part of the whole peace
process and that the negotiations on the permanent status will lead to the
implementation of Security Council Resolutions 242 and 338.69
A decade later, the Israelis and the Palestinians still had not reached a
final-status peace agreement. In 2003, the Quartet co-ordinating the
negotiations (the US, the EU, the Russian Federation, and the UN)
proposed a performance-based Roadmap envisaging the emergence of a
Palestinian state.70 Phase III of the Roadmap required that the parties
negotiate a final and comprehensive permanent status agreement based
on SC Resolutions 242, 338, and 1397 and entailing ‘two states, Israel
and sovereign, independent, democratic and viable Palestine, living sideby-side in peace and security’. The Roadmap was endorsed by the
Security Council in November 2003.71 However, the parties still failed to
agree on final status. In November 2007, the Israeli–Palestinian Joint
Understanding declared the intent of the parties to ‘immediately launch
good-faith bilateral negotiations in order to conclude a peace treaty,
resolving all outstanding issues, including all core issues without
exception, as specified in previous agreements’, ‘[i]n furtherance of the
goal of two states, Israel and Palestine, living side by side in peace and
security’.72 The parties also committed to implement their respective
obligations under the Roadmap.73 Peace talks stalled after Israel refused
to extend a 10-month freeze on settlement activity in the occupied
Palestinian territory. That decision prompted the Palestinian Authority to
withdraw from direct talks with Israel, which had only resumed a few
weeks earlier after a two-year hiatus.
References
(p. 140) In November 2011, noting an agreement of the parties in
October 2011 to make comprehensive proposals on territory and security,
the UN called for an immediate resumption of peace talks.74
Though the parties had not reached a final status agreement, Palestine
applied for admission to membership in the UN on 23 September
2011.75 The Security Council Committee on the Admission of New
Members was unable to recommend action to the Security Council and
instead adopted a report noting deep divisions within the
Council.76 Palestine had previously been accepted into membership in
the Non-Aligned Movement, the Organization of Islamic Cooperation, the
Economic and Social Commission for Western Asia, the Group of 77, and
UNESCO.77 Some 130 states have recognized Palestine as a state.78
(C) Kosovo
Another unresolved case is that of Kosovo. States submitting
observations in the Kosovo advisory proceedings addressed, inter alia,
the right to self-determination (outside the colonial context), and some
posited that a state might be created under a right to ‘remedial
secession’.79 However, the Court found that it was ‘not necessary to
resolve these questions in the present case’, as the General Assembly
had requested the Court’s opinion on a narrower question—that is,
whether the declaration of independence was in accordance with
international law. The Court concluded that ‘general international law
contains no applicable prohibition of declarations of independence’.
Accordingly, the ‘declaration of independence of 17 February 2008 did
not violate general international law’.80 The Court found that SC
Resolution 1244 (1999) did not address the authors of the declaration of
17 February 2008 and so did not constrain them from issuing a
declaration of independence either. The authors of the declaration were
not acting as one of the Provisional Institutions of Self-Government within
the Constitutional Framework, but rather were representatives of the
people of Kosovo acting outside the framework of the interim
administration.81 Nor did the resolution reserve the final determination of
the status of Kosovo to the Security Council.82 The Court chose not to
address the consequences of such a declaration of independence—
whether a new state had been
References
(p. 141) created or whether other states would be obliged to recognize
(or to refrain from recognizing) it. As at 1 January 2012, some 85 states
had recognized Kosovo.83
4. Achieving Independence: Secession and SelfDetermination84
If independence is the decisive criterion of statehood, self-determination
is a principle concerned with the right to be a state.85 A key initial
development was the reference to ‘the principle of equal rights and selfdetermination of peoples’ in Articles 1(2) and 55 of the UN
Charter.86 Many saw these references as merely hortatory, but the
practice of UN organs powerfully reinforced the principle—in particular
the Declaration on the Granting of Independence to Colonial Countries
and Peoples, adopted by the General Assembly in 1960 and referred to
in a long series of resolutions since.87 The Declaration treats the principle
of self-determination as one of the obligations stemming from the
Charter: it is in the form of an authoritative interpretation.88 The right to
self-determination of ‘all peoples’ was subsequently included as common
Article 1 of the two human rights Covenants of 1966.89
Means of achieving self-determination include the formation of a new
state through secession, association in a federal state, or autonomy or
assimilation in a unitary (nonfederal) state.90 It is generally accepted that
peoples subjected to colonial rule have a right to elect independence
under international law, but the question of secession, and selfdetermination more generally, has been highly controversial outside the
colonial context.91In practice a marked distinction has developed
between full (‘external’) self-determination and qualified (‘internal’) selfdetermination. This was perhaps definitively formulated by the Canadian
Supreme Court:
We have also considered whether a positive legal entitlement to secession exists under
international law in the factual circumstances contemplated by Question 1, i.e., a clear
democratic
References
(p. 142) expression of support on a clear question for Quebec secession. Some of those
who supported an affirmative answer to this question did so on the basis of the
recognized right to self-determination that belongs to all ‘peoples’. Although much of the
Quebec population certainly shares many of the characteristics of a people, it is not
necessary to decide the ‘people’ issue because…a right to secession only arises under
the principle of self-determination of peoples at international law where ‘a people’ is
governed as part of a colonial empire; where ‘a people’ is subject to alien subjugation,
domination or exploitation; and possibly where ‘a people’ is denied any meaningful
exercise of its right to self-determination within the state of which it forms a part. In other
circumstances, peoples are expected to achieve self-determination within the framework
of their existing state. A state whose government represents the whole of the people or
peoples resident within its territory, on a basis of equality and without discrimination, and
respects the principles of self-determination in its internal arrangements, is entitled to
maintain its territorial integrity under international law and to have that territorial integrity
recognized by other states.92
Questions of internal self-determination and remedial secession are left
open here and remain controversial. The International Court did not
address submissions on remedial secession in the Kosovo opinion.93
5. Identity and Continuity of States94
The term ‘continuity’ of states is not employed with any precision, and
may be used to preface a diversity of legal problems. Thus it may
introduce the proposition that the legal rights and responsibility of states
are not affected by changes in the head of state or the internal form of
government.95 This proposition can, of course, be maintained without
reference to ‘continuity’ or ‘succession’, and it is in any case too general,
since political changes may result in a change of circumstances sufficient
to affect particular types of treaty relation. More significantly, legal
doctrine tends to distinguish between continuity (and identity) and state
succession. The latter arises when one international personality takes the
place of another, for example by union or lawful annexation. In general, it
is assumed that cases of ‘state succession’ are likely to involve important
changes in the legal status and rights of the entities concerned, whereas
if there is continuity, the legal personality and the particular rights and
duties of the state remain unaltered. The distinction is examined in more
detail in chapter 19.
References
Footnotes:
1
1
Oppenheim, 1 International Law (1st edn, 1905) 99–101; cf 1
Oppenheim 120–3.
2
Generally: 1 Whiteman 221–33, 283–476; Guggenheim (1952) 80
Hague Recueil 1; Higgins, Development (1963) 11–57; Fawcett, The
British Commonwealth in International Law (1963) 88–
143; Marek, Identity and Continuity of States in Public International
Law (2nd edn, 1968); Verzijl, 2 International Law in Historical
Perspective (1969) 62–294, 339–500; Rousseau, 2 Droit International
Public (1974) 13–93; Arangio-Ruiz, L’État dans le sens du droit des gens
et la notion du droit international (1975); Crawford (1976–77) 48 BY 93;
Lauterpacht, 3 International Law (1977) 5–25; Grant, The Recognition of
States (1999); Crawford, Creation of States (2nd edn, 2006); Caspersen
& Stansfield, Unrecognized States in the International System (2011). On
UN membership: Grant, Admission to the United Nations (2009);
Duxbury, The Participation of States in International
Organisations (2011).
3
Convention on Rights and Duties of States adopted by the Seventh
International Conference of American States, 26 December 1933, 165
LNTS 19.
4
E.g. Fitzmaurice (1957) 92 Hague Recueil 1, 13; Higgins (1963) 13;
Fawcett (1963) 92.
5
Grant (1999) 37 Col JTL 403.
6
Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 ILR
11; North Sea Continental Shelf (Federal Republic of
Germany/Netherlands; Federal Republic of Germany/Denmark), ICJ
Reports 1969 p 3, 32; In re Duchy of Sealand (1978) 80 ILR 683. Further:
Badinter Commission, Opinion No 1 (1991) 92 ILR 162; Opinion No
10 (1992) 92 ILR 206.
7
On Albania: Ydit, Internationalized Territories (1961) 29–33; Crawford
(2nd edn, 2006) 510–12.
8
See Jessup, US representative in the SC, 2 December 1948, quoted in
1 Whiteman 230; also SC Res 69 (1949), GA Res 273(III), 11 May 1949.
9
On the European micro-states generally: Duursma, Fragmentation and
the International Relations of Microstates (1996). On micro-states as UN
members: Crawford (2nd edn, 2006) 182–5. On Andorra before the
reforms of 1993: Crawford (1977) 55 RDISDP 259; on those reforms:
Duursma (1996) 316–73.
10
Guggenheim (1952) 80 Hague Recueil 1, 83; Higgins (1963) 20–5.
11
Temperley, 5 History of the Peace Conference at Paris (1921) 158. Cf
Chen, The International Law of Recognition (1951) 201. Further:
Crawford (2nd edn, 2006) 530–1.
12
Higgins (1963) 22.
13
2 Rousseau (1974) 68–73. Cf Marek (1968) 161–90.
14
Guggenheim (1952) 80 Hague Recueil 183, 96.
15
In Aaland Islands the Commission of Jurists referred to the disorder
existing in Finland and observed: ‘It is therefore difficult to say at what
exact date the Finnish Republic in the legal sense of the term actually
became a definitely constituted sovereign State. This certainly did not
take place until a stable political organization had been created, and until
the public authorities had become strong enough to assert themselves
throughout the territories of the State without the assistance of foreign
troops’: (1920) LNOJ Sp Supp No 3, 3. This sets the bar very high and
would have embarrassing consequences if generally applied.
16
On independence as a criterion for statehood: Crawford (2nd edn,
2006) 62–88.
17
The occupation was not a belligerent occupation, nor was there
a debellatio leading to extinction of Germany as a state: Protocol on
Zones of Occupation in Germany, 12 September 1944, 227 UNTS 279;
further: Jennings (1946) 23 BY 112; Sharp, The Wartime Alliance and the
Zonal Division of Germany (1975); Hendry & Wood, The Legal Status of
Berlin (1987); Piotrowicz & Blay, The Unification of Germany in
International and Domestic Law (1997).
18
Hall, International Law (8th edn, 1924) 18, 20, 33; 1 Oppenheim 125–
6 (‘sovereignty’ used as a synonym for ‘independence’).
19
On the Gulf States: Al Baharna, The Arabian Gulf States (2nd rev edn,
1975); Al Baharna, British Extra-Territorial Jurisdiction in the Gulf
1913–1971(1998).
20
20
This may occur without subordination. Since 1919 by agreement the
Swiss Federal Council has conducted the diplomatic relations of
Liechtenstein: Duursma (1996) 161–9. Also Busek & Hummer (eds), Der
Kleinstaat als Akteur in den Internationalen Beziehungen (2004).
21
Customs Régime between Germany and Austria (1931) PCIJ Ser A/B
No 41, 37.
22
Protocol No 1, 4 October 1922, 116 BFSP 851.
23
Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4, 7.
24
Rights of Nationals of the United States of America in Morocco
(France v US), ICJ Reports 1952 p 176, 188. Also Guggenheim (1952)
80 Hague Recueil 1, 96. Cf the separate but dependent personality of
India 1919–47; on which see McNair, The Law of Treaties (1938)
76;Poulose (1970) 44 BY 201; Right of Passage over Indian Territory
(Portugal v India), ICJ Reports 1960 p 6, 95 (Judge Moreno Quintana,
diss). Cf also the position of Monaco in relation to France: Duursma
(1996) 274–91. On the status of Hungary after German occupation in
1944: Restitution of Households Effects Belonging to Jews Deported
from Hungary (Germany) (1965) 44 ILR 301, 334–42. On the status of
Croatia in Yugoslavia during the German occupation: Socony Vacuum Oil
Company (1954) 21 ILR 55, 58–62. On Morocco as a French
protectorate: Treaty for the Organisation of the Protectorate, 30 March
1912, 106 BFSP 1032.
25
The colonial analogy has been made in different ways e.g. in Helman
&Ratner (1992) 89 Foreign Policy 3;Lyon (1993) 31 JCCP 96;Gordon
(1995) 28 Cornell ILJ 301;Richardson (1996) 10 Temple ICLJ 1; Perritt
(2004) 15 Duke JCIL 1. Cf Wilde, International Territorial
Administration (2008) ch 8. For more on international administrations:
chapter 4.
26
Pahuja, Decolonising International Law (2011) 46–7.
27
Brooks (2005) 72 U Chic LR 1159, 1168.
28
Helman & Ratner (1992) 89 Foreign Policy 3, 13.
29
Pfaff (1995) 74 Foreign Affairs 2, 2, 6. Also Kreijen, State Failure,
Sovereignty and Effectiveness (2004).
30
30
Further: Pogge, in Crawford & Koskenniemi (eds), Cambridge
Companion to International Law (2012) 373.
31
Ehrenreich & Brooks (2005) 72 U Chic LR 1159, 1187.
32
TFEU, 13 December 2007, OJEU C 115/47 2008. Generally:
Gerven, The European Union (2005); Dashwood, Law and Practice of EU
External Relations (2009); Hix, The Political System of the European
Union (3rd edn, 2011).
33
Chen (1951) 59–60; Kelsen, Principles of International Law (2nd edn,
1966) 381–3; Waldock, ILC Ybk 1972/II, 34–5; 1 Restatement Third,
§§201–2.
34
Cf the anti-Jewish legislation of the Italian Social Republic of
Sálo: Mossé (1953) 20 ILR 217; Levi (1957) 24 ILR 303; Sonnino (1956)
24 ILR 647; Wollemborg (1956) 24 ILR 654. British Somaliland became
independent on 26 June 1960 but united with Somalia to form the Somali
Republic on 1 July 1960. It remains formally unrecognized as a separate
state: UKMIL (2010) 81 BY 453, 503–5.
35
Chen (1951) 61.
36
Hyde, 1 International Law (1922) 23; Chen (1951) 127–9. Also 1
Whiteman 223.
37
Gong, The Standard of ‘Civilization’ in International Society (1984);
Bull & Watson, The Expansion of International Society (1985); Fidler
(2001) 2 Chic JIL 137. And see chapter 1.
38
Generally: Crawford, in Crawford & Koskenniemi (2012) ch 5. Further:
Chayes & Chayes, The New Sovereignty(1995); Krasner, Sovereignty,
Organized Hypocrisy(1999); MacCormick, Questioning
Sovereignty (1999); Kalmo & Skinner (eds), Sovereignty in
Fragments (2010).
39
Cf Badinter Commission, Opinion No 1 (1991) 92 ILR 162: ‘The
Committee considers…that such a state is characterized by sovereignty’.
But cf 1 Oppenheim (1st edn, 1905) 108.
40
Rousseau (1948) 73 Hague Recueil 1, 178–80. Cf Duff Development
Co v Government of Kelantan (1924) 2 ILR 124, 127 (Viscount Finlay);
Judges Adatci, Kellogg, Rolin-Jaequemyns, Hurst, Schücking, van
Eysinga & Wang (diss), Austro-German Customs Union (1931) PCIJ Ser
A/B No 41, 37, 77. Further: Fawcett (1963) 88–93; Lighthouses in Crete
and Samos (1937) PCIJ Ser A/B No 71, 94.
41
ICJ Reports 1952 p 176, 185, 188. Also: Rolin (1950) 77
Hague Recueil 305, 326.
42
Crawford (2nd edn, 2006) 236–41. But disputes between Danzig and
Poland were referred to the PCIJ by means of its advisory jurisdiction in
view of Art 34 of the Statute of the Court, which gives locus standi in
contentious cases only to states. On Danzig: chapter 4.
43
49 UNTS 124.
44
Cf the cases of Albania in 1913; Poland and Czechoslovakia in 1917–
18; Estonia, Latvia, and Lithuania, 1918–20. See 1 Hackworth 199–222.
Also the case of Indonesia, 1946–49: 2 Whiteman 165–7. Cf the
observations of Lord Finlay, German Interests in Polish Upper
Silesia (1926) PCIJ Ser A No 7, 4, 84.
45
For the asserted continuity of the Palestine Mandate and Israel
see AG (Israel)v Eichmann (1961) 36 ILR 5, 52–3; (1962) 36 ILR 277,
304. See further ALB v Austrian Federal Ministry for the Interior (1922) 1
ILR 20; Poznanski v Lentz & Hirschfeld (1924) 2 ILR 228; Establishment
of Czechoslovak State (1925) 3 ILR 13; HE v Federal Ministry of the
Interior (1925) 4 ILR 25; Deutsche Continental Gas-Gesellschaft v
Poland (1929) 5 ILR 11.
46
Oslo Accords (1993) 32 ILM 1542. Cassese, Self-determination of
Peoples (1995) 230–48; Shehadeh, From Occupation to Interim
Accords (1997); McDowall, The Palestinians (1998); Crawford (2nd edn,
2006) 434–48. Further: Legal Consequences of the Construction of a
Wallin the Occupied Palestinian Territory, ICJ Reports 2004 p 136.
47
E.g. the ICC: Shaw (2011) 9 JICJ 301, with citations to literature at
302 n2.
48
Hendry & Wood (1987);Frowein (1992) 86 AJIL 152;Piotrowicz (1992)
63 BY 367; Crawford (2nd edn, 2006) 452–66.
49
50
Berlin Declaration, 5 June 1945, 145 BFSP 796.
50
Statement on Control Machinery in Germany, 5 June 1945, 145 BFSP
803.
51
See Brehm v Acheson, 90 F.Supp 662 (SD Tex, 1950); Recidivism
(Soviet Zone of Germany) (1954) 21 ILR 42.
52
1952 Tripartite Convention, Art 2: 331 UNTS 327; 1955 Convention
(USSR–GDR), Art 1, 226 UNTS 201; 1972 Treaty on the Basis of IntraGerman Relations, Art 9, 21 December 1973, 12 ILM 16.
53
[1964] BPIL 276.
54
331 UNTS 327.
55
Letter from Prime Minister Bulganin to FRG delegation, 13 September
1955: 162 BFSP 623.
56
Mann, Studies in International Law (1972) 671.
57
226 UNTS 201. Also USSR–GDR Treaty of Friendship, Mutual
Assistance and Co-operation, 12 June 1964, 553 UNTS 249, Arts 7, 9.
58
Crawford (2nd edn, 2006) 456–7.
59
1972 UNTS 315, 9 ILM 1026, Art 3.
60
12 ILM 16, Art 6.
61
12 ILM 217.
62
SC Res 344 (1973); GA Res 3060(XXVIII), 18 September 1973.
63
Treaty on the Final Settlement with Respect to Germany, 12
September 1990, 1696 UNTS 123, Art 7(1).
64
Three Powers note of 14 April 1975: A/10078. Further: (1977)
81 RGDIP 494, 613–14, 772–4. About Berlin generally: Hendry & Wood
(1987).
65
Treaty on the Final Settlement, Art 7(2).
66
Ress, Die Rechtslage Deutschlands (1978) 199–228.
67
And one giving rise to unusually sharp exchanges: Crawford (1990)
1 EJIL 307;Boyle (1990) 1 EJIL 301; Benoliel &Perry (2010) 32 Mich
JIL 73; Quigley (2011) 32 Mich JIL 749.
68
Declaration of Principles on Interim Self-Government Arrangements,
13 September 1993, 32 ILM 1527, and see Benvenisti (1993) 4 EJIL 542;
Cassese, ibid, 564; Malanczuk (1996) 7 EJIL 485.
69
SC Res 242 (1967) provided for the ‘withdrawal of Israeli armed
forces from territories occupied in the recent conflict’; SC Res 338 (1973)
called upon the parties concerned to begin the process of implementation
of SC Res 242 (1967).
70
Performance-based Roadmap to a Permanent Two-State Solution to
the Israeli–Palestinian Conflict, S/2003/529, 7 May 2003.
71
SC Res 1515 (2003), op §1.
72
Joint Understanding Read by President Bush at Annapolis
Conference, 27 November 2007, released by the White House, Office of
the Press Secretary, available at www.unispal.un.org.
73
Ibid.
74
14 November 2011, UN calls for immediate resumption of peace talks,
available at www.un.org/apps/news/story.asp?
NewsID=40381&Cr=Palestin&Cr1=.
75
Application of Palestine for Admission to Membership in the UN,
A/66/371, 23 September 2011.
76
Report of the Committee on the Admission of New Members
concerning the application of Palestine for admission to membership in
the UN, S/2011/705, 11 November 2011, §21.
77
The latter occurred on 31 October 2011: ‘General Conference admits
Palestine as UNESCO Member State’, 31 October 2011, Doc
UNESCO_Pal-MemberState, UNESCO Press release.
78
Ibid, §14.
79
Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, Opinion of 22 July 2010, §82.
80
Ibid, §84.
81
Ibid, §§109, 114, 118–19.
82
Ibid, §114.
83
www.mfa-ks.net/?page=2,33.
84
84
Cristescu, The Right to Self-Determination(1981); Higgins, Problems
and Process(1994) 111–28; Cassese (1995); Franck, Fairness in
International Law and Institutions (1995) 140–69;Quane (1998)
47 ICLQ 537; McCorquodale (ed), Self-Determination in International
Law (2000); Ghanea & Xanthaki (eds), Minorities, Peoples and SelfDetermination (2005); Crawford (2nd edn, 2006) 108–28.
85
Crawford (2nd edn, 2006) 107.
86
Also chapters XI (Declaration Regarding Non-Self-Governing
Territories) and XII (International Trusteeship System).
87
GA Res 1514(XV), 14 December 1960.
88
Waldock (1962) 106 Hague Recueil 33; Right of Passage, ICJ
Reports 1960 p 6, 95–6 (Judge Moreno Quintana, diss).
89
ICESCR and ICCPR, GA Res 2200A(XXI), 16 December 1966;
respectively 993 UNTS 3 and 999 UNTS 171.
90
GA Res 1541(XV), 15 December 1960; GA Res 2625(XXV), 24
October 1970.
91
See chapter 29.
92
Reference re Secession of Quebec (1998) 115 ILR 536, 594–5.
Also: Crawford (1998) 69 BY 115; Bayefsky (ed), Self-Determination in
International Law: Quebec and Lessons Learned (2000).
93
Kosovo, Opinion of 22 July 2010, §82.
94
In particular: Kunz (1955) 49 AJIL 68; Kelsen (1966) 383–7; Marek
(1968); O’Connell, 1–2 State Succession in Municipal Law and
International Law (1967); Eisemann & Koskenniemi (eds), State
Succession (2000); Crawford (2nd edn, 2006) 667–99; Craven, The
Decolonization of International Law (2007).
95
McNair, 1, 3 Opinions; 1 Hackworth 387–92; Tinoco
Concessions (1923) 2 ILR 34.
(p. 143) 6 Recognition of States and
Governments
1. Recognition as a General Category1
Whenever a state acts in a way which may affect the rights or interests of
other states, the question arises of the significance of their reaction to the
event. In Legal Status of Eastern Greenland, it was held that Norway
had, through a declaration by its Foreign Minister, Nils Ihlen, accepted
Danish title to the disputed territory.2There the acceptance by Norway of
Denmark’s claim was by informal agreement: in other instances formal
treaty provisions will involve recognition of rights. However, apart from
agreement, legally significant reactions may occur in the form of
unilateral acts or conduct involving recognition or acquiescence. Unlawful
acts of states may meet with protest from other states. Such acts are not
in principle opposable to other states in any case, and protest is not a
condition of their illegality. Conversely, the validity of a claim to territory is
not conditioned on its acceptance by other states.
But acts of protest or recognition play a significant role. Furthermore,
there is a spectrum of issues involving areas of uncertainty, novel, and
potentially law-changing claims (cf the development of claims to
continental shelf resources), or which arise in a context where issues are
most sensibly settled on an ad hoc and bilateral basis. (p. 144) Disputes
are often decided on the basis of facts, including elements of
acquiescence, establishing a special content of legal relations between
the parties, and this quite apart from treaty. Finally, protest and
recognition may involve pure acts of policy not purporting to involve legal
characterizations of other states’ conduct.
More specifically, however, the term ‘recognition’ (if not exactly a term of
art)3 is commonly used to refer to two related categories of state acts:
first, the recognition of another entity as a state; and second, the
recognition of that entity’s government as established, lawful or
‘legitimate’, that is as entitled to represent the state for all international
4
purposes.4 It further implies an undertaking by the recognizing state that
it will treat the entity in question as a state (or as the government of an
already recognized state).5
2. Recognition of States
(A) Theoretical Overlay6
In this context legal writing has adopted the emphasis and terminology of
political relations, notably in relation to the fundamental issue of
recognition of states. Indeed ‘there is probably no other subject in the
field of international relations in which law and politics appear to be more
closely interwoven’.7
The dominance of the category ‘recognition’ has led to some perverse
doctrine. When a state is in dispute over title to territory, a court or
tribunal will examine all the available and legally significant conduct of
either party. A declaration by one party that it does not ‘recognize’ the title
of the other will not determine the issue, and will usually be worth very
little. A statement registering the fact that at a certain date the opponent
was in actual occupation may be evidence, but only within the context of
the particular case will the statement have significance. When the
existence of states and governments is in issue, by contrast, a sense of
perspective seems to be elusive.
Indeed the complexity one may expect of legal issues in interstate
relations has been compacted into a doctrinal dispute between the
‘declaratory’ and ‘constitutive’ views (p. 145) of recognition.8 According to
the declaratory view,9 the legal effects of recognition are limited:
recognition is a declaration or acknowledgement of an existing state of
law and fact, legal personality having been conferred previously by
operation of law. In a relatively objective forum such as an international
tribunal, it would be entirely proper to accept the existence of a state
although the other party to the dispute, or third states, do not recognize
it.10 This perspective appears to have been accepted (at least tacitly) by
the International Court. In Genocide (Bosnia and Herzegovina v
Yugoslavia),11 it was argued by the Socialist Federal Republic of
Yugoslavia (SFRY) that the allegations of the breach of the Genocide
Convention12 made by Bosnia-Herzegovina were not admissible as the
parties to the dispute had not recognized each other at the time of the
events in question. The Court dismissed this argument on the basis that,
as recognition had been given subsequently in the Dayton Accord,13 any
defect was merely procedural and could be remedied by re-filing the
claim to relate to events of genocide occurring prior to 1995.
Substantial state practice supports the declaratory view.14 Unrecognized
states are quite commonly the object of international claims by the very
states refusing recognition. An example is Israel, long held accountable
under international humanitarian and human rights law by certain Arab
states that persistently deny it recognition.15
The declaratory theory of recognition is opposed to the constitutive view,
according to which the political act of recognition is a precondition of the
existence of legal rights: in its extreme form this implies that the very
personality of a state depends on the political decision of other
states.16 The most nuanced defence of this perspective
References
(p. 146) is that of Lauterpacht, who conceives of states as the
gatekeepers of the international realm:
[T]he full international legal personality of rising communities…
cannot be automatic…[A]s its ascertainment requires the prior
determination of difficult circumstances of fact and law, there
must be someone to perform the task. In the absence of a
preferable solution, such as the setting up of an impartial
international organ to perform that function, the latter must be
fulfilled by States already existing. The valid objection is not
against the fact of their discharging it, but against their carrying
it out as a matter of arbitrary policy distinguished from legal
duty.17
Taken to its logical conclusion, however, the constitutive view is as a
matter of principle impossible to accept: it is clearly established that
states cannot by their independent judgment remove or abrogate any
competence of other states established by international law (as distinct
from agreement or concession). Moreover, the constitutive theory of
recognition leads to substantial difficulties in terms of practical
application. How many states must recognize? Can existence be relative
only to those states which recognize?18 Is existence dependent on
recognition only when this rests on an adequate knowledge of the facts?
More vitally, does nonrecognition by a state entitle it to treat an entity as a
non-state for the purposes of international law, for example, by
intervening in its internal affairs or annexing its territory?
One solution put forward is that of the ‘collectivization’ of recognition,
under which statehood matures through membership of the United
Nations, or at least a call by the UN that the new state be
recognized.19 Whilst this would circumvent what Lauterpacht called the
‘grotesque spectacle’20 of relative statehood, it has its own
problems:21 notably, it cannot account for the legal position of a state in
the period between its declaration of independence and its admission to
the UN, which in the case of the two Koreas lasted some 43
years.22Moreover, under Article 4 of the UN Charter statehood is a
criterion for membership, not a consequence.
References
(p. 147) (B) The Varied Legal Consequences of
Recognition and Non-Recognition
There is no such thing as a uniform type of recognition or nonrecognition.23 The terminology of official communications and
declarations is not very consistent: there may be ‘de iure recognition’, ‘de
facto recognition’, ‘full diplomatic recognition’, ‘formal recognition’, and so
forth. The term ‘recognition’ may be absent, taking the form instead of
agreement to establish diplomatic relations or a congratulatory message
on independence day. The typical act of recognition has two legal
functions. First, the determination of statehood, a question of law: such
individual determination may have evidential value.24 Secondly, a
condition of the establishment of formal relations, including diplomatic
relations and the conclusion of bilateral treaties: it is this second function
which has been described by some as ‘constitutive’, but it is not a
condition of statehood. Since states are not legally required to make a
public declaration of recognition nor to undertake optional relations such
as the exchange of ambassadors, the expression of state intent involved
is political in the sense of being voluntary. But it may also be political in a
more obvious sense. An absence of recognition may not rest on any legal
basis at all, there being no attempt to pass on the question of statehood
as such. Non-recognition may simply be part of a general policy of
disapproval and boycott. Recognition may be part of a policy of
aggression involving the creation of a puppet state: the legal
consequences here stem from the breaches of international law
involved.25
Above all, recognition is a political act and is to be treated as such.
Correspondingly, the term ‘recognition’ does not absolve the lawyer from
inquiring into the intent of the recognizing government, placing this in the
context of the relevant facts and law. Indeed, non-recognition (in the
sense of a refusal to have formal relations) may carry with it the
implicit assumption of recognition (in the sense of an acknowledgement
of existence). Warbrick notes that a bare statement of non-recognition
carries five possible meanings, only one of which is a definitive
declaration that the entity in question is not regarded as a state. Under
his taxonomy, non-recognition is: (a) a statement of neutrality, under
which no view is taken deliberately as to the entity’s statehood; (b) driven
purely by political calculations (thereby implying recognition of statehood
in law); (c) driven by the understanding that recognition would be
unlawful or premature (genuine non-recognition); (d) issued on the basis
that supervening obligations in custom or (p. 148) treaty prevent
recognition; (e) issued on the basis of a supervening obligation imposed
by the Security Council.26
This leads to a consideration of the practicalities of recognition: the
existence of a state is of little worth unless it is accepted as such into the
community of nations. It is of little value to assert that Taiwan or
Somaliland is a state if nobody will engage with it on such a basis.27
(C) The ‘Duty to Recognize’
28
29
Lauterpacht28 and Guggenheim29 adopt the view that recognition is
constitutive but that there is a legal duty to recognize. This standpoint has
been vigorously criticized as bearing no relation to state practice and for
its inconsistency, providing as it does that state consent is determinative
of statehood whilst in the same breath narrowing its scope until only one
option remains.30 A constitutive argument dependent on a duty to
recognize in order to reconcile theoretical inconsistency becomes the
declaratory theory viewed from a different perspective.
In principle the legal duty implies that the entity in question already bears
the marks of statehood and (although Lauterpacht does not express it
thus) the duty would seem to be owed to the entity concerned. The
argument postulates personality on an objective basis. Discussion of
Lauterpacht’s views often reveals a certain confusion among the critics.
Recognition, as a public act of state, is an optional and political act and
there is no legal duty in this regard. However, in a deeper sense, if any
entity bears the marks of statehood, other states put themselves at risk
legally if they ignore the basic obligations of state relations. Few, for
example, took the view that its Arab neighbours could treat Israel as a
non-entity. In this context of state conduct there is a duty to accept and
apply certain fundamental rules of international law, a legal duty to
‘recognize’ for certain purposes at least.31 But there is no duty to make
an express, public determination or to declare readiness to enter into
diplomatic relations by means of recognition: this remains political and
discretionary. Non-recognition (in this sense) is not a determinant of
diplomatic relations, and the absence of diplomatic relations is not in itself
non-recognition of the state.32
(p. 149) (D) Implied Recognition33
Recognition is a matter of intention and may be express or implied.34 The
implication of intention is a process aided by certain presumptions.
According to Lauterpacht, in the case of recognition of states, only the
conclusion of a bilateral treaty, the formal initiation of diplomatic relations,
and, probably, the issue of consular exequaturs, justify the
implication.35 No recognition is implied from negotiations, unofficial
representation, the conclusion of a multilateral treaty to which the
unrecognized entity is also a party, admission to an international
36
organization (at least in respect to those not supporting admission),36 or
participation with the entity concerned at an international conference.
Confusion arises from two sources. First, the terminology of
governmental statements may lead tribunals to give legal status to acts
intended only to give a low level of recognition:37 for example, an
authority with which only informal and limited contacts have been
undertaken may be accorded sovereign immunity by national
courts.38 Secondly, different considerations ought to apply to different
aspects of recognition, yet doctrine tends to generalize about the subject.
Thus, in terms of evidence in an international tribunal, informal relations,
especially if these persist, may have probative value on the issue of
statehood. However, as a matter of optional bilateral relations,
recognition depends on intention.39
(E) Retroactivity of Recognition40
British and American courts have applied the principle of retroactivity in
following or interpreting the views of the executive in matters of
recognition, but Oppenheim describes the rule as ‘one of convenience
rather than of principle’.41 Once again one ought not to generalize except
to say that on the international plane there is no rule of retroactivity. As to
the basic rights and duties entailed by statehood, delayed recognition
cannot be ‘retroactive’ because in a special sense it is superfluous.
Optional and consensual relations it may or may not be, since the area is
one of discretion.42
References
(p. 150) (F) Recognition and Membership of International
Organizations43
Collective recognition may take the form of a joint declaration, for
example that of the Allied Supreme Council after the First World War, or
an invitation to a new state to become a party to a multilateral treaty of a
political character such as a peace treaty. The functioning of international
organizations of the type of the League of Nations and United Nations
provides a variety of occasions for recognition, of one sort or another, of
states. Recognition of other members, or of non-members, may occur in
the course of voting on admission to membership44 and consideration of
complaints involving threats to or breaches of the peace. Indeed, it has
been argued that admission to the League and the UN entails recognition
by operation of law by all other members, whether or not they voted for
admission.
The position, supported by principle and practice, would seem to be as
follows. Admission to membership is evidence of statehood,45 and nonrecognizing members are at risk if they ignore the basic rights of
existence of an entity the object of their non-recognition.46 However,
there is nothing in the Charter, or customary law, which requires a nonrecognizing state to enter into optional bilateral relations with other
members.47 In any event the test of statehood in general international law
is not necessarily applicable to the issue of membership in the
specialized agencies of the United Nations,48 as demonstrated by the
recent admission of Palestine to UNESCO.
There are other elements in the case of organizations, adequate
treatment of which cannot be given here. Can the UN and its organs
(including the Secretariat), as such, accord recognition? For the purposes
of the Charter numerous determinations of statehood are called for: thus,
for example, the UN Secretary-General acts as depositary for important
treaties. Whether, and to what extent, such determinations provide
evidence of statehood for general purposes must depend on the
relevance to general international law of the criteria employed in a given
case.49 Attitudes of non-recognition
References
(p. 151) may depend on the political positions of individual members and
the view that in any case the special qualifications for membership
contained in Article 4 of the Charter are not fulfilled: statehood may be
necessary but it is not sufficient.
3. Recognition of Governments50
The status of an entity as the government of a state raises somewhat
different issues to those raised by recognition of statehood, although the
differences were historically obscured by the practice of diplomatic
recognition being applied to both states and governments. The legal
entity in international law is the state; the government is in normal
circumstances the representative of the state, entitled to act on its behalf.
The consequences of an entity not being considered a state are
potentially greater. The absence of a (recognized) state with respect to
some area of the world raises the possibility of a legal vacuum, although
in practice this may be mitigated in various ways.51 By contrast the
absence of a (recognized) government does not lead to a loss of title,
and may simply require some form of curatorship.52
In short although recognition of government and state may be closely
related, they are not identical. Non-recognition of a particular regime is
not necessarily a determination that the community represented by that
regime does not qualify for statehood. Non-recognition of a government
may mean that it is not regarded as a government in terms of
independence and effectiveness, or that the non-recognizing state is
unwilling to have normal intergovernmental relations with it. Recognition
in the context of voluntary relations may be made conditional on the
democratic character of the regime, the acceptance of particular claims,
or the giving of undertakings, for example on treatment of
minorities.53 Here, the European Community’s Guidelines on the
Recognition of New States, adopted in response to the breakup of the
USSR and Yugoslavia, are instructive.54The sphere of optional relations
and voluntary obligations is one of discretion and bargain. In terms of
bilateral voluntary relations, an unrecognized government is little better
off than an unrecognized state.
References
(p. 152) In Tinoco Concessions, Great Britain claimed on the basis of
concessions granted by a former revolutionary government of Costa Rica
which had not been recognized by some other states, including Great
Britain itself. The arbitrator, Taft CJ, observed:
The non-recognition by other nations of a government claiming to be a national
personality, is usually appropriate evidence that it has not attained the independence and
control entitling it by international law to be classed as such. But when recognition vel
non of a government is by such nations determined by inquiry, not into its de
facto sovereignty and complete governmental control, but into its illegitimacy or
irregularity or origin, their nonrecognition loses something of evidential weight on the
issue with which those applying the rules of international law are alone concerned. What
is true of the non-recognition of the United States in its bearing upon the existence of
a de facto government under Tinoco for thirty months is probably in a measure true of
the non-recognition by her Allies in the European War. Such non-recognition for any
reason, however, cannot outweigh the evidence disclosed by this record before me as to
the de facto character of Tinoco’s government, according to the standard set by
international law.55
In the case of governments, ‘the standard set by international law’ is so
far the standard of secure de facto control of all or most of the state
territory. The Tinoco regime had that, and was thus the government for
the time being of Costa Rica, irrespective of non-recognition.
(A) De Iure and De Facto Recognition
The distinction between de iure and de facto recognition occurs
exclusively in the context of recognition of governments: there is no such
thing as a de facto state.56 General propositions about the distinction are
to be distrusted; everything depends on the intention of the government
concerned and the general context of fact and law.57 On the international
plane a statement that a government is recognized as the ‘de
facto government’ of a state may involve a purely political judgment,
involving a reluctant or cautious acceptance of an effective government,
lawfully established in terms of international law and not imposed from
without, or an unwarranted acceptance of an unqualified agency. On the
other hand, the statement may be intended as a determination of the
existence of an effective government, but with reservations as to its
References
(p. 153) permanence and viability. No doubt the legal and political
reasons for caution may coincide, but they rarely affect courts, which,
with or without the epithet de facto, accord recognition the same effect. It
is sometimes said that de iure recognition is irrevocable while de
facto recognition can be withdrawn. In the political sense recognition of
either kind can always be withdrawn: legally it cannot be unless a change
of circumstances warrants it.
Situations do occur where there is a serious legal distinction between de
iure and de facto recognition. Thus some governments accepted certain
legal consequences of German control of Austria, 1938–45, and
Czechoslovakia, 1939–45, for example in the fields of nationality law and
consular relations. Yet these same governments did not accept the
lawfulness of German authority.58 In documents relating to these matters
‘de facto recognition’ may be used to describe acceptance of facts with a
dubious legal origin: de iure recognition would be inappropriate and
unjustifiable.59 In this context it is hazardous to accept the full legal
competence of an administration accorded only ‘de facto recognition’.
Thus, in Bank of Ethiopia v National Bank of Egypt and Liguori,60 the
Court gave effect to an Italian decree in Ethiopia on the basis that the UK
had recognized Italy as the de facto government. In truth Italy was no
more than a belligerent occupant. Furthermore, in situations where rival
governments were accorded de iure and de facto recognition in respect
of the same territory, problems arise if the same legal consequences are
given to both forms of recognition.61
(B) Recognition of Governments Inabeyance
There is a school of thought supporting the automatic recognition of de
facto governments, exemplified by the ‘Estrada doctrine’ enunciated by
the Mexican Secretary of Foreign Relations in 1930.62 As a means of
reducing non-recognition as a source of interference in internal affairs
this is laudable, but difficulties remain.
In 1980 the British government adopted the practice of no longer
according recognition to governments. The statement read as follows:
Where an unconstitutional change of regime takes place in a
recognised State, Governments of other States must
necessarily consider what dealings, if any, they should have with
the new regime, and whether and to what extent it qualifies to
be treated as the Government of the State concerned. Many of
our partners and allies take the position that they do not
recognise Governments and that therefore no question of
recognition arises in such cases. By contrast, the policy of
successive British Governments has been that we should make
and announce a decision formally ‘recognising’ the new
Government.
References
(p. 154) This practice has sometimes been misunderstood, and,
despite explanations to the contrary, our ‘recognition’ interpreted
as implying approval…
We have therefore concluded that there are practical
advantages in following the policy of many other countries in not
according recognition to Governments. Like them, we shall
continue to decide the nature of our dealings with regimes which
come to power unconstitutionally in the light of our assessment
of whether they are able of themselves to exercise effective
control of the territory of the State concerned, and seem likely to
continue to do so.63
The practical result of this change has been unfortunate. Executive
certificates, like the one supplied in Gur Corporation,64 may be indecisive
and reflect the premise that the issues are unrelated to questions of
general international law. Such a premise is especially inappropriate in
cases where the legitimacy of the regime raises issues of validity in terms
of general international law, for example, in case of foreign intervention,
or there are competing administrations and their internal validity is linked
to issues of international law. No doubt the facts are paramount in each
case but the facts can only be assessed within the appropriate legal
framework.65
When issues of international legality have been in question, however, the
UK government has provided the necessary guidance, for example, in
relation to the status of Kuwait under Iraqi occupation in 1990;66 and the
status of the ‘Turkish Republic of Northern Cyprus’ (TRNC).67 Most
recently, clarification as to the legitimate government of Libya was
provided in the form of a certificate (apparently contrary to the announced
policy) explicitly stating that the government considered the National
Transitional Council (NTC) to be the legitimate government of Libya and
did not recognize any other government in Libya, notably the former
Qaddafiregime. This certificate permitted the NTC to obtain access to
English bank accounts in Libya’s name formerly under the control of
Qaddafiand his supporters.68
(C) Credentialsand Representation in International
Organizations
The approval of the credentials of state representatives by organs of the
United Nations raises problems similar, but not identical, to those
concerning admission, since in
References
(p. 155) practice the formal requirements for approving credentials have
been linked with a challenge to the representation of a state by a
particular government.69
4. Collective Non-Recognition and Sanctions
One form of collective non-recognition seen in practice is the resolution
or decision of an organ of the United Nations, based on a determination
that an illegal act has occurred.70 Support for the concept was provided
by the International Court in the Kosovo advisory opinion.71 Article 41(2)
of the ILC Articles on the Responsibility of States for Internationally
Wrongful Acts takes this further, providing that ‘no State shall recognize
as lawful a situation created by a serious breach’ of an obligation arising
under a peremptory norm of international law.72In the present context,
this obligation entails two central duties of abstention: (a) not to recognize
as lawful situations created by a serious breach of international law; and
(b) not to render aid or assistance in maintaining the situation. Thus there
is a duty not to recognize the illegal acquisition of territory, an obligation
confirmed as customary international law in the Wall opinion.73
It is possible, though by no means necessary, to refer to such practice as
collective non-recognition. There is no doubt a duty of states parties to a
system of collective security or other multilateral conventions not to
support or condone acts or situations contrary to the treaty
concerned.74 The duty of non-recognition is not, however, absolute. As
the International Court stated in Namibia:
In general, the non-recognition of South Africa’s administration of the Territory should not
result in depriving the people of Namibia of any advantages derived from international
cooperation. In particular, while official acts performed by the Government of South
Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal
and invalid, this invalidity cannot be extended to those acts, such as, for instance, the
registration of
References
(p. 156) births, deaths and marriages, the effects of which can be ignored only to the
detriment of the inhabitants of the Territory.75
This formulation is very similar to the historical position adopted by the
US and later by the UK, whereby the national courts of a non-recognizing
state may continue to give effect to rights and liabilities of non-recognized
regimes which are of an essentially internal and private law character.
In some contexts the duty of non-recognition will be carefully spelled out
and may be associated with measures recommended or required as a
form of sanction or enforcement. The Security Council resolutions of
1965 and 1966 characterized the Smith regime in Rhodesia as unlawful
in terms of the UN Charter and called upon all states not to recognize
it.76 Similar issues arose in relation to the situation in Namibia (formerly
South West Africa) following the termination of the Mandate,77 the South
African ‘Bantustans’,78 the status of the Turkish-occupied area of Cyprus
(the ‘TRNC’) after the Turkish invasion of 1974,79 and in relation to the
annexation of East Timor by Indonesia.80 More recently, the obligation
has arisen in relation to Israeli activities in the Occupied Territories as a
consequence of the Wall advisory opinion, where the Court said:
Given the character and the importance of the rights and obligations involved, the Court
is of the view that all states are under an obligation not to recognize the illegal situation
resulting from the construction of the wall in the Occupied Palestinian Territory, including
in and around East Jerusalem. They are also under an obligation not to render aid or
assistance in maintaining the situation created by such construction.81
The General Assembly subsequently called on all Members ‘to comply
with their legal obligations as mentioned in the Advisory Opinion’,82 but
the Security Council took no
References
(p. 157) action with respect to the matter, and no state undertook to alter
its behaviour towards Israel, even with respect to the provision of aid.83
5. Issues of Recognition Before National
Courts84
(A) Overview
Individual recognition may have important practical consequences on a
domestic level. Where the local courts are willing or obliged to follow the
advice of the executive, the unrecognized state or government cannot
claim immunity from the jurisdiction, obtain recognition for purposes of
conflict of laws of its legislative and judicial acts, or sue in the local
courts. The attitude to questions of recognition adopted by municipal
courts will thus reflect the policies of the forum state, and great caution is
needed in using municipal cases to establish propositions about
recognition in general international law. In particular, because of the
constitutional position of many courts in matters concerning foreign
relations, it is unjustifiable to treat the cases as evidence supporting the
constitutive position.
(B) The Position of The United Kingdom Courts
In matters of recognition, the UK judiciary has historically adhered to two
closely-related principles. The first, expressed in the Arantzazu Mendi, is
that ‘[o]ur State cannot speak with two voices on such a matter, the
judiciary saying one thing, the executive another.’85 The second is that
although both the executive and the judiciary are considered to be
manifestations of the state, only the former is competent to determine
foreign policy. It is accordingly not within the purview of the courts to, sua
sponte, ‘recognize’ a state or
References
(p. 158) government;86 rather, they must follow the lead of the executive.
Thus, in the early case of The Annette,87 the courts refused to extend
state immunity to ships of the unrecognized ‘Provisional Government of
Northern Russia’. Although the UK government has professedly ceased
issuing formal statements of recognition of governments, it still does so
on occasion, in which case its certificate will be taken by the courts as
conclusive.88
In the absence of a certificate, the court may examine executive action to
infer that recognition has taken place.89 But the court is not required to
guess at an unexpressed intent, and can look at the matter at large.
In Republic of Somalia v Woodhouse Drake and Carey (Suisse) SA,
Hobhouse J saw the following factors as determinative in the absence of
a certificate: (a) whether the government in question is the constitutional
government of the state; (b) the degree, nature, and stability of its
administrative control; (c) whether the executive has had any dealings
with the purported government and the nature of those dealings; and (d)
in marginal cases only, the attitude of other states towards the purported
government.90 He added that mere statements by the Foreign and
Commonwealth Office falling short of outright recognition, though highly
persuasive as evidence, were not determinative.91
The question may be complicated where the executive chooses to qualify
its recognition as de facto rather than de iure. In AM Luther v James
Sagor & Co the Court of Appeal held that the fact that recognition was
extended on a de facto basis alone did not diminish the legal rights
available to the state.92 This position was refined in the Haile
Selassie case.93 This was a claim by the Emperor of Ethiopia to assets
located in England at a time when the UK recognized Italy as the de
facto government, whilst Selassie remained de iure sovereign. At first
instance, it was held that the Italian de facto authority did not impair the
Emperor’s capacity to recover the assets in question, but before the
defendant appealed, the UK government extended de iure recognition to
the Italian authorities in Ethiopia. The Court of Appeal held this to operate
retroactively94 from
References
(p. 159) the date at which de facto authority was first extended. Thus, the
Emperor’s claim was displaced and any rights to property held vested in
the King of Italy.
The Haile Selassie case gives texture to an obvious problem, that is
when there is both a de iure and de facto government with respect to the
same territory.95 Historically, the practice of the British courts was
‘uniform to the point of rigidity’:96 the acts of unrecognized states and
governments were given no weight.97 But the courts have adopted a
number of devices by way of mitigation. The first, which is virtually a legal
fiction, operates on the basis of an imputed agency: the acts of the
unrecognized entity are considered to be performed under powers
delegated to it by the legitimate sovereign. In the Carl Zeiss case,98 the
House of Lords interpreted the acts of the unrecognized government of
the German Democratic Republic (GDR) as those of a subordinate organ
of the Soviet Union, the de iure government of the relevant territory; the
practical effect was that the acts of the GDR government could give rise
to rights and liabilities ordinarily seen to emanate from a de
iure government without offending the executive’s policy of nonrecognition. A similar situation emerged in Gur Corporation, where the
Court of Appeal found the unrecognized ‘Bantustan’ of Ciskei to be a
subordinate body of South Africa.99
A second device permits the recognition of private acts internal to the
unrecognized states. Put simply, the English courts have endeavoured to
recognize rights and obligations which are of a wholly private law
character, unconnected to the grounds for nonrecognition.100 In Hesperides Hotels, Lord Denning MR expressed the
view that the laws of a non-recognized entity could give rise to rights and
obligations opposable in English courts insofar as they related to ‘the
day-to-day affairs of the people, such as their marriages, their divorces,
their leases, their occupations and so forth’.101 Lord Donaldson MR
in Gur Corporation agreed, noting (again obiter) that:102
I see great force in this [private law] reservation, since it is one thing to treat a state or
government as being ‘without the law’, but quite another to treat the inhabitants of its
territory as ‘outlaws’ who cannot effectively marry, beget legitimate children, purchase
goods on credit or undertake countless day-to-day activities having legal consequences.
The ‘private acts’ exception was actually applied by Sumner J in Emin v
Yeldag,103 who expanded Lord Denning’s position to include all private
acts done within a
References
(p. 160) non-recognized state, provided that (a) there was no statutory
prohibition on the recognition of the act, and (b) the act of recognition did
not undermine the political or diplomatic goals of the executive.104
The limits of the exception were demonstrated in Kibris Türk, where the
court reviewed a decision by the Secretary of State for Transport refusing
to permit a Turkish airline to operate flights between the United Kingdom
and Northern Cyprus. Wyn Williams J held that the decision was correct
for two reasons. In the first place, though it controlled only the south of
the island, the government of Cyprus was the recognized government for
the territory in question within the meaning of the Chicago
Convention105 and therefore had the capacity to regulate air traffic within
the territo-ry.106 In the second, for the court to allow the granting of a
permit would be to contradict the government’s long-standing nonrecognition of the TRNC; in this respect, the private acts exception could
not be invoked:
[M]any of the acts of the Government of the TRNC as they relate to aviation are public
and international in character. They are not properly described as laws which regulate
the day to day affairs of the people who reside in the TRNC either as described by Lord
Denning MR, or Sumner J…This court is obliged to refuse to give effect to the validity of
acts carried out in a territory which is unrecognized unless the acts in question can
properly be regarded as regulating the day to day affairs of the people within the territory
in question and can properly be regarded as essentially private in character.107
(C) The Position of the United States Courts
Much of the jurisprudence concerning non-recognition arose from the US’
refusal to recognize the Soviet Union from the latter’s emergence in
1922108 to the Roosevelt–Litvinov Agreements of 1933.109 The US
position on the recognition of governments generally is as set out in
the Restatement Third:110
(1) an entity not recognized as a state, or a regime not recognized
as the government of a state, is ordinarily denied access to courts
in the United States;
References
(p. 161) (2) a regime not recognized as the government of a state
is not entitled to property belonging to that state located in the
United States;
(3) courts in the United States ordinarily give effect to acts of a
regime representing an entity not recognized as a state, or of a
regime not recognized as a government of a state, if those acts
apply to territory under the control of that regime and relate to
domestic matters only.
In respect of principles (1) and (2) above, the situation in the US is similar
to that of the UK: a non-recognized state111 or government can neither
appear before the forum courts, nor assert a right to property held in the
US.112 Although the courts have indicated that a mere absence of
recognition is not determinative,113 where the executive has indicated
clearly that the courts are closed to an unrecognized state, the judiciary
will normally comply.114
The prohibition on access, however, may be relaxed depending on the
facts of the case, the practical consequences of granting or not granting
access and the extent to which access is germane to the foreign policy
goals of the United States.115 Thus in Upright v Mercury Business
Machines Co116 non-recognition of the GDR did not prevent the assignee
of a trade acceptance issued by a GDR instrumentality from bringing suit.
By contrast in Kunstsammlungen zu Weimar a GDR government agency
was converted into a purportedly separate legal person in an attempt to
intervene in a case concerning the recovery of two valuable paintings.
The court determined that the formal change had no effect on the GDR’s
control of the erstwhile agency, and denied it standing, noting that to do
otherwise would be
References
(p. 162) to ‘render our government’s non-recognition of the German
Democratic Republic a meaningless gesture’.117
US courts since the Civil War118 have acknowledged the acts of nonrecognized states, provided that such acts ‘[deal] solely with private, local
and domestic matters’ and not ‘matters extending beyond the borders’ of
the unrecognized entity.119 This in effect presaged the private acts
exception: Lauterpacht called it the doctrine of ‘justice and public
policy’.120 The rationale was expressed in Salimoff v Standard Oil Co of
New York: ‘to refuse to recognize Soviet Russia as a government
regulating the internal affairs of the country, is to give to fictions an air of
reality which they do not deserve’.121 The limits of the doctrine, however,
may be seen in The Maret,122where the court refused to recognize the
nationalization of a ship by the unrecognized Soviet Republic of
Estonia.123
(D) The Position in Europe
(i) A ‘Pan-European’ Approach
The legal consequences of non-recognition in Europe vary from state to
state, but some overarching framework is provided by pan-European
institutions, especially the European Court of Justice. As a general rule
(to which Switzerland and the Netherlands are notable
exceptions)124 non-recognized states have no right of appearance, and
their acts will not be given effect by European courts.125 This was seen in
the early Soviet Marriages case, where the Royal Hungarian Court of
Appeal refused to acknowledge a marriage concluded under the laws of
the unrecognized Russian Soviet Federative Socialist Republic.126 The
position softened somewhat by the later
References
(p. 163) twentieth century, as suggested in the attitude of the Italian Court
of Cassation towards the GDR:
In conformity with long-standing doctrine in Italy and throughout the European
continent…where the question arises of establishing the effects in Italy of an act of
private law executed abroad, it is irrelevant whether or not a State maintains diplomatic
relations with another State whose rule of private international law is to be enforced, or
whether or not the latter State is recognized by the former. The only prerequisite for the
enforcement of a foreign legal rule is its effectiveness, provided that the particular legal
provision does not also require reciprocity of treatment and so long as the principles of
the foreign law to be enforced do not appear incompatible with the fundamental rules of
the lex fori, in which case the foreign law is unenforceable for reasons of public
127
policy.
Differences in approach may depend on the readiness of national courts
to apply international law. In some states, the judiciary treats the political
question of recognition as distinct from statehood and assesses the
capacity of an entity proprio motu rather than deferring to executive acts.
This may be seen in Fretilin v Netherlands, in which an East Timorese
resistance group attempted to halt the sale of three Dutch corvettes to
the Indonesian government. The District Court of Amsterdam held the
claim inadmissible on grounds that East Timor was not a state and the
Fretilin Liberation Front therefore had no legal personality. It said,
however, that ‘this question must be decided independently by a court of
law, irrespective of the question of recognition’ and, further, ‘on the basis
of the factual criteria for statehood laid down by international law’.128 A
more recent example is the Italian Court of Cassation in Djukanovic,
deciding that Montenegro was not then a state.129
In Anastasiou I,130 the European Court of Justice heard questions
referred to it by the English High Court regarding the importation of
agricultural products from Northern Cyprus. Under the terms of an
Association Agreement between the European Communities and the
Republic of Cyprus in 1972 and a Protocol concluded in 1977, in order to
obtain preferential tariff treatment each consignment of goods for export
was to be accompanied by a certificate issued by the customs authorities
of the exporting state as proof of origin. Northern Cypriot goods were
exported into the UK and elsewhere131 with certificates produced by
TRNC authorities, prompting the question whether these were valid for
the purposes of the Agreement and Protocol. Although
References
(p. 164) the question turned mainly on the interpretation of the relevant
texts, the UK and the European Commission argued that to deny the
validity of the certificates would be to deny the inhabitants of the TRNC
the advantages granted by the Agreement and Protocol, and thus
the Namibia exception applied.132 The Court, adopting the position of
Advocate-General Gulmann,133 disagreed:
While the de facto partition of the territory of Cyprus, as a result of the intervention of the
Turkish armed forces in 1974, into a zone where the authorities of the Republic of
Cyprus continue fully to exercise their powers and a zone where they cannot in fact do
so raises problems that are difficult to resolve in connection with the application of the
Association Agreement to the whole of Cyprus, that does not warrant a departure from
the clear, precise and unconditional provisions of the 1977 Protocol on the origin of
products and administrative cooperation.134
(ii) Expanding the Namibia exception
Notwithstanding the judgment of the European Court of Justice
in Anastasiou I, the Namibia exception arguably has expanded before the
European Court of Human Rights.135
In Loizidou v Turkey, Turkey argued that in order to provide housing for
displaced Turkish Cypriots fleeing from the south, the TRNC was justified
in expropriating the houses of displaced Greek Cypriots. The majority did
not reject this argument outright, but said that in the circumstances the
expropriation was disproportionate.136 The Court went further in Cyprus v
Turkey (Fourth Interstate Case), where it accepted that the remedies
available in the TRNC were ‘domestic’ remedies provided by Turkey:137
It is to be noted that the International Court’s Advisory Opinion…shows clearly that, in
situations similar to those arising in the present case, the obligation to disregard acts
of de facto entities is far from absolute. Life goes on in the territory concerned for its
inhabitants. That life must be made tolerable and be protected by the de
facto authorities, including their courts; and, in the very interest of the inhabitants, the
acts of these authorities related thereto cannot be simply ignored by third States or by
international institutions, especially courts, including this one. To hold otherwise would
amount to stripping the inhabitants of the territory of all their rights whenever they are
discussed in an international context, which would amount to depriving them even of the
minimum standard of rights to which they are entitled.138
References
(p. 165) The Court built on this further in Demopoulos v Turkey, where
access to the Court was barred under Article 35(1) of the European
Convention for the Protection of Human Rights and Fundamental
139
Freedoms139on the basis that domestic remedies in the TRNC had not
been exhausted.140
References
Footnotes:
1
State practice and other materials: 2 Whiteman 1–746; 1 Hackworth
161–387; 1 Moore 67–248. Literature: Lauterpacht, Recognition in
International Law (1947); Jessup, A Modern Law of Nations (1948) 43–
67; Brown (1950) 44 AJIL 617; Chen, The International Law of
Recognition (1951); Fitzmaurice (1957) 92 Hague Recueil 1, 16–
35; Kelsen, Principles of International Law (2nd edn, 1967) 387; Jennings
(1967) 121 Hague Recueil 323, 349–68; Lauterpacht, 1 International
Law: Collected Papers (1970) 308; Salmon, La Reconnaissance
d’état (1971); Verhoeven, La Reconnaissance internationale dansla
pratique contemporaine (1975); Brownlie (1982) 53 BY 197;
Dugard, Recognition and the United Nations (1987); Verhoeven (1993)
39 AFDI 7; Rich (1993) 4 EJIL 36; Hillgruber (1998) 9 EJIL 491;
Talmon, Recognition of Governments in International Law (1998);
Grant, The Recognition of States (1999); Murphy (1999) 48 ICLQ 545;
Talmon, Recognition in International Law: A Bibliography (2000); Talmon
(2004) 75 BY 101; Crawford, Creation of States (2nd edn, 2006) 12–28;
Talmon, La non reconnaissance collective des Etats illégaux (2007);
Fabry, Recognizing States (2010); Craven, in Evans (ed), International
Law (3rd edn, 2010) 203.
2
(1933) PCIL Ser A/B No 53, 73. The better view is that the facts
disclosed an agreement rather than a unilateral act, the quid pro
quo being Danish recognition of Norwegian sovereignty over Svalbard
(Spitzbergen). On unilateral acts in general: chapter 18.
3
4
Brownlie (1982) 53 BY 197, 197–8.
E.g. 1 Restatement Third §§202, 203. Recognition of a state may be
independent of the recognition of its government, though the reverse is
not true: ibid, §203, comment (a).
5
5
Ibid, §202, comment (c). Also: Montevideo Convention on the Rights
and Duties of States, 26 December 1933, 165 LNTS 19, Art 6 (‘The
recognition of a State merely signifies that the State which recognizes it
accepts the personality of the other with all the rights and duties
determined by international law’).
6
Generally: Brownlie (1982) 53 BY 197; Grant (1999); Talmon (2004)
75 BY 101; Crawford (2nd edn, 2006) 19–28.
7
Lauterpacht (1947) v.
8
Talmon helpfully characterizes the declaratory position as statusconfirming and the constitutive position as status-creating: Talmon (2004)
75 BY 101, 101–2.
9
Adherents include Chen (1951); Waldock (1962) 106 Hague Recueil 1,
147–51; Rolin (1950) 77 Hague Recueil 305, 326–37; Kunz (1950)
44 AJIL 713; Charpentier, La Reconnaissance internationale (1956);
Duursma, Fragmentation and the International Relations of MicroStates (1996) 110–15; Talmon (2004) 75 BY 101; Crawford (2nd edn,
2006) 19–22.
10
E.g. Tinoco Concessions (1923) 1 RIAA 369; Deutsch Continental
Gesellschaft v Polish State (1929) 5 ILR 11.
11
Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia),
Preliminary Objections, ICJ Reports 1996 p 595, 612–13.
12
Convention on the Prevention and Punishment of the Crime of
Genocide, 9 December 1948, 78 UNTS 277.
13
General Framework Agreement for Peace in Bosnia and Herzegovina,
14 December 1995, 35 ILM 75.
14
Montevideo Convention, Arts 3 (‘The political existence of the State is
independent of recognition by the other States’), 6. Also: 1 Restatement
Third §202(1); Badinter Commission, Opinion No 10 (1992) 92 ILR 206,
208; Reference re Secession of Quebec (1998) 115 ILR 536, 589–90.
Further: Talmon (2004) 75 BY 101, 106–7.
15
16
Craven, in Evans (3rd edn, 2010) 203, 244.
16
Constitutive doctrine takes many forms; many jurists allow certain
rights prior to recognition. Adherents include Anzilotti, 1 Cours de droit
international (1929) 160; Kelsen (1932) 42 Hague Recueil 117, 260–94
(earlier he was a declaratist: (1929) 4 RDI 613, 617–18); Lauterpacht
(1947). Certain German Interests in Polish Upper Silesia (1926) PCIJ Ser
A No 7, 28 does not unequivocally support the constitutive view, since the
issue was the existence of a contractual nexus between Germany and
Poland: that Poland could not invoke a treaty against Germany did not
connote its non-existence as a state. For the view that UN Secretariat
practice supported the constitutive position: Schachter (1948) 25 BY 91,
109–15.
17
Lauterpacht (1947) 55. Lauterpacht tempers the severity of this
position by reference to a ‘duty’ of recognition.
18
Further: Kelsen (1941) 35 AJIL 605, 609; Lauterpacht (1947) 67, 88;
Crawford (2nd edn, 2006) 21–2.
19
E.g. Chen (1951) 222; Dugard (1987) 125–7; Duursma (1996) 110–
12; Hillgruber (1998) 9 EJIL 491; Grant (2009) 256. Also and earlier:
Lauterpacht (1947) 167–9.
20
Lauterpacht (1947) 78.
21
Talmon (2004) 75 BY 101, 105.
22
The Republic of Korea was established on 15 August 1948 and the
Democratic Republic of North Korea on 9 September 1948. Both states
were admitted to the UN on 17 September 1991: SC Res 702 (1991); GA
Res 46/1, 17 September 1991.
23
1 Restatement Third §202, comment (a): ‘States may recognize an
entity’s statehood by formal declaration or by recognizing its government,
but states often treat a qualified entity as a state without any formal act of
recognition’.
24
Recognition is rarely ‘cognitive’ in a simple sense: the issue is one of
law as well as fact, and cognition, which may involve no outward sign,
occurs before, often long before, public recognition. Cf 2 Whiteman 13
(Secretary of State Dulles).
25
25
E.g. the Japanese recognition of ‘Manchukuo’: Crawford (2nd edn,
2006) 78–9.
26
Warbrick, in Evans (ed), Aspects of Statehood and Institutionalism in
Contemporary Europe (1997) 9, 1–11.
27
Generally: Brenthurst Foundation, The Consequences of Somaliland’s
International (Non) Recognition, Discussion Paper 2011/05 (2011).
Further: UKMIL (2006) 77 BY 597, 618–19; (2007) 78 BY 634, 682;
(2008) 79 BY 565, 596–7; (2009) 80 BY 661, 709–10, 712–13; (2010)
81 BY 435, 503–5.
28
Lauterpacht (1947) 73–5; 158–61; 1 Lauterpacht (1970) 308, 312–14.
29
1 Guggenheim 190–1.
30
Kunz (1950) 44 AJIL 713; Cohn (1948) 64 LQR 404; Briggs (1949)
43 AJIL 113; Jessup (1971) 65 AJIL 214, 217; Brownlie (1982)
53 BY 197, 209; Talmon (2004) 75 BY 101, 103; Crawford (2nd edn,
2006) 22.
31
E.g. 1 Restatement Third §202(1).
32
Brownlie (1982) 53 BY 197, 209.
33
Lauterpacht (1947) 369–408; Chen (1951) 201–16; Lachs (1959)
35 BY 252. US practice: 1 Hackworth 327–63; 2 Whiteman 48–59, 524–
604; 1 Restatement Third §201.
34
In some cases, a state may base its policy of recognition with respect
to both states and governments around an approach of implied
recognition: Talmon (2009) 7 NZYIL 1.
35
Lauterpacht (1947) 406.
36
Some international organizations are open to non-states: e.g.
autonomous customs territories under the WTO (Hong Kong, Macao &
Taiwan) and the World Tourism Organization. Further: chapter 7.
37
Cf Talmon (2009) 7 NZYIL 1, 17.
38
E.g. Arantzazu Mendi [1939] AC 256.
39
Brownlie (1982) 53 BY 197, 208.
40
40
E.g. Haile Selassie v Cable And Wireless Ltd (No 2) [1939] 1 Ch 182.
Also: 2 Whiteman 728–45; 1 Hackworth 381–5; Chen (1951) 172–
86; Brownlie (1982) 53 BY 197, 208–9.
41
1 Oppenheim 161 (9th edn, 1992).
42
Cf Polish Upper Silesia (1926) PCIJ Ser A No 7, 27–39, 84 (Lord
Finlay).
43
Generally: Rosenne (1949) 26 BY 437; Aufricht (1949)
43 AJIL 679; Wright (1950) 44 AJIL 548; Higgins, Development (1963)
131–2, 140–4, 146–50; Dugard (1987); Crawford (2nd edn, 2006) ch 4;
Grant, Admission to the United Nations (2009); Duxbury, The
Participation of States in International Organisations (2011) 314–15.
44
Cf Northern Cameroons (Cameroon v UK), Preliminary Objections,
ICJ Reports 1963 p 15, 119–20 (Judge Fitzmaurice).
45
E.g. Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary
Objections, ICJ Reports 1996 p 595, 611. Also: Rosenne, Developments
in the Law of Treaties 1945–1986 (1989) 215; Grant (2009) 254. For UK
state practice: UKMIL (2009) 80 BY 661, 706 (UK written intervention in
the Kosovo advisory opinion).
46
Grant (2009) 255 (‘UN admission, entailing the participation of all
members in a multilateral treaty, may be described as putting a formal
frame around the opposability of statehood toward all other UN
members’). E.g. the UN admission of Montenegro: SC Res 1691 (2006),
GA Res 60/264, 12 July 2006.
47
S/1466, 9 March 1950; Kelsen, Law of the United Nations (1951) 946.
48
Morgenstern, Legal Problems of International Organizations (1986)
46–68.
49
United Nations organs have been involved in varying degrees in the
process of political creation of some states, viz., Indonesia, Israel, Libya,
Republic of Korea, Somalia, Namibia, and Kosovo. On the UN role:
Crawford (2nd edn, 2006) ch 12. See also chapter 8.
50
Generally: Galloway, Recognizing Foreign Governments (1978); Ando
[1985] JAIL 28, 29–46; Talmon (1992) 63 BY 231; Talmon (1998). Also:
1 Restatement Third §203; Pavot (2006) 14 Rev Affeur 297; Talmon
(2009) 8 Chin JIL 135.
51
Thus de facto control may continue while issues of succession are
resolved: e.g. the continued involvement in Kosovo of UNMIK:
S/2011/675, 31 October 2011, §2.
52
E.g. Government of Somalia v Woodhouse, Drake & Carey (Suisse)
SA [1993] QB 54.
53
Kelsen (2nd edn, 1966) 403–4; cf Murphy (1999) 48 ICLQ 545. E.g.
the Roosevelt–Litvinov Agreement, 16 November 1933, 11 TIAS 1248
(recognition of the USSR by the US dependent on the resolution of
certain financial claims and an undertaking by the USSR not to take acts
prejudicial to the internal security of the US). Also: Duxbury (2011) 101–3
on EC recognition of former-Soviet states.
54
16 December 1991, 31 ILM 1485. Further: Hillgruber (1998)
9 EJIL 491.
55
(1923) 1 RIAA 369, 381. Also: Wulfsohn v RSFSR, 234 NY 372
(1923); Sokoloff v National City Bank, 239 NY 158 (1924); Salimoff v
Standard Oil Co, 262 NY 220 (1933); Deutsche Continental GasGesellschaft v Polish State (1929) 5 ILR 11; Socony Vacuum Oil
Company (1954) 21 ILR 55; Standard Vacuum Oil Company (1959) 30
ILR 168; Clerget v Représentation Commerciale de la République
démocratique du Viet-Nam (1969) 96 JDI 894, 898; Badinter
Commission, Opinion No 1 (1991) 92 ILR 162; Opinion No 8 (1992) 92
ILR 199; Opinion No 10 (1992) 92 ILR 206.
56
Frowein, Das de facto-Regime im Völkerrecht (1968) proposed the
idea of a ‘de facto regime’ to describe political entities that exercise
control over territories, but which are not recognized as states. The
concept is not reflected in state practice and appears chiefly in the
German literature. Further: Talmon (2004) 75 BY 101, 103–5; Frowein,
‘De Facto Regime’ (2009) MPEPIL.
57
Briggs (1939) 33 AJIL 689; Brownlie (1982) 53 BY 197, 207–8;
Talmon (1998) 59–111; Craven, in Evans (3rd edn, 2010) 203, 244–5.
58
59
On UK and US policies: Brownlie, Use of Force (1963) 414–16.
59
British de iure recognition in 1938 of the Italian conquest of Ethiopia in
1936 was avoided in 1941: Wright (1937) 31 AJIL 683; Talmon (1998)
102–3, 290; Crawford (2nd edn, 2006) 519–20.
60
[1937] Ch 513.
61
Further: Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1
AC 853, 898–904 (Lord Reid), 950–78 (Lord Wilberforce).
Also: Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd [1978] QB
205, 218 (Lord Denning MR).
62
Estrada (1931) 25 AJIL Supp 203; Jessup (1931) 25 AJIL 719.
63
UKMIL (1980) 51 BY 355, 367–8. Also: Warbrick (1981) 30 ICLQ 568.
Further: 1 Restatement Third §203, reporter note (1).
64
Gur Corporation v Trust Bank of Africa Ltd [1987] 1 QB 599.
65
For criticism: Brownlie (1982) 53 BY 197, 209–11; Crawford (1986)
57 BY 408; Talmon (1998) 3–14. Also: Republic of Somalia v Woodhouse
Drake and Carey (Suisse) SA [1993] QB 54, noted Kingsbury (1993)
109 LQR 377; Crawford (1993) 52 CLJ 4.
66
Kuwait Airways Corporation v Iraqi Airways Company and the
Republic of Iraq (1999) 116 ILR 534, 580–1.
67
Caglar v Billingham (1996) 108 ILR 510, 519; Veysi Dag v Secretary
of State (2001) 122 ILR 529, 536.
68
British Arab Commercial Bank plc v National Transitional Council of
the State of Libya [2011] EWHC 2274 (Comm) [23]–[25] (Blair J).
69
Higgins (1963) 131–2, 140–4, 146–50; Kelsen (2nd edn, 1967) 946.
70
1 Lauterpacht (1970) 308, 321; Kelsen (2nd edn, 1967) 415–16;
Dugard (1987) 81–111; Crawford (2nd edn, 2006) 157–73; Talmon, in
Talmon et al (eds), Fundamental Rules of the International Legal
Order (2006) 99; Talmon (2007); Ronen, Transition from Illegal Regimes
under International Law (2011) chs 2 and 3.
71
Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, Opinion of 22 July 2010, §81.
72
On the aetiology of Art 41: Talmon, in Talmon et al (2006) 99, 102–3;
Dawidowicz, in Crawford, Pellet & Olleson (eds), The Law of International
Responsibility (2010) 677. See also chapter 27.
73
Legal Consequences of the Construction of a Wallin the Occupied
Palestinian Territory, ICJ Reports 2004 p 136, 171, cf ibid, 232 (Judge
Kooijmans).
74
Cf the Stimson Doctrine: League of Nations, Official Journal, Spec
Supp No 101 (1932) 87–8 (‘it is incumbent upon the members of the
League of Nations not to recognize any situation, treaty or agreement
which may be brought about by means contrary to the Covenant of the
League of Nations or the Pact of Paris’). Further: 1 Lauterpacht (1970)
308, 337–48; Turns (2003) 2 Chin JIL 105; Fabry, Recognizing
States (2011) 135–7; Grant, ‘Doctrines (Monroe, Hallstein, Brezhnev,
Stimson)’ (2008) MPEPIL, §C. See further chapter 27.
75
Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), ICJ Reports 1971 p 16, 56. Also: Loizidou v
Turkey (Merits) (1996) 108 ILR 443, 462. Generally: Ronen (2011) 80–
100.
76
SC Res 216 (1965); SC Res 217 (1965); SC Res 232 (1966); SC Res
253 (1968); SC Res 277 (1970). Later: SC Res 318 (1972); SC Res 320
(1972); SC Res 388 (1976); SC Res 409 (1977); SC Res 423 (1978). On
the UN resolutions concerning Rhodesia: Fawcett (1965–66)
41 BY 103; McDougal & Reisman (1968) 62 AJIL 1; Dugard (1987) 90–8;
Gowlland-Debbas, Collective Responses to Illegal Acts in International
Law (1990); Ronen (2011) 27–37.
77
Generally: Namibia, ICJ Reports 1971 p 16.
78
SC Res 385 (1976); SC Res 402 (1976); SC Res 407 (1977); SC Res
417 (1977).
79
SC Res 541 (1983); SC Res 550 (1984). Further: Case C-432/92, R v
Minister of Agriculture, Fisheries and Food, ex parte SP Anastasiou
(Pissouri) Ltd (1994) 100 ILR 257; Loizidou v Turkey (Preliminary
Objections) (1995) 103 ILR 622; Loizidou v Turkey (Merits) (1996) 108
ILR 443; Demopoulos v Turkey [2010] ECtHR 46113/99. Generally:
Ronen (2011) 38–54.
80
80
GA Res 3485(XXX), 12 December 1975; GA Res 31/53, 1 December
1976; GA Res 32/34, 28 November 1977; GA Res 33/39, 13 December
1978; GA Res 34/40, 21 November 1979; GA Res 35/27, 11 November
1980; GA Res 36/50, 24 November 1981; GA Res 37/30, 22 November
1982; SC Res 384 (1975); SC Res 389 (1976). Further: Ronen (2011)
54–61. Also: East Timor (Portugal v Australia), ICJ Reports 1995 p 90.
81
Wall, ICJ Reports 2004 p 136, 200.
82
GA Res ES-10/15, 20 July 2004, §3.
83
Ronen (2011) 312 attributes the ineffectiveness of collective nonrecognition to (a) non-uniform application of the duty (Soviet annexation
of the Baltic states, Indonesian annexation of East Timor), (b) the internal
strength of certain illegal regimes (the case of Rhodesia), or (c) the
political consequences inherent in implementing non-recognition (the
case of Israel and Palestine). Talmon, in Talmon et al (2006) 99, 125, is
more sanguine, but believes the scope of the duty to be limited.
84
Generally: Mann (1943) 29 GST 143; Merrills (1971)
20 ICLQ 476; Nedjati (1981) 30 ICLQ 388; Verhoeven (1985) 192
Hague Recueil 13; Talmon (1998) Appendix I; Fatima, Using International
Law in Domestic Courts (2005) 388.
85
[1939] AC 256, 264 (Lord Atkin). This principle still exists: Adams v
Adams [1971] P 188, 198 (Simon P); In re Westinghouse Electric
Corporation Uranium Contract Litigation (Nos 1 & 2) [1978] AC 547,
617; Gur Corporation v Trust Bank of Africa Ltd [1987] QB 599, 604
(Steyn J), on appeal, ibid, 625 (Nourse LJ); Lonrho Exports Ltd v Export
Credits Guarantee Department [1999] Ch 158, 179 (Lightman J); R
(Sultan of Pahang) v Secretary of State [2011] EWCA Civ 616, §14
(Maurice Kay LJ), [30] (Moore-Bick LJ); British Arab Commercial Bank
plc v National Transitional Council of the State of Libya [2011] EWHC
2274 (Comm), §25 (Blair J).
86
As noted by Mann (1943) 29 GST 143, 145: ‘[t]he Courts
cannot make foreign policy’ (emphasis in original).
87
[1919] P 105. Also: Luther v Sagor [1921] 1 KB 456, on appeal [1921]
3 KB 532.
88
88
E.g. Mighellv Sultan of Johore [1894] 1 QB 149, 158 (‘When once
there is the authoritative certificate of the Queen through her minister of
state as to the status of another sovereign, that in the courts of this
country is decisive’); Carl Zeiss Siftung v Rayner and Keeler Ltd (No
2) [1967] AC 853, 43 ILR 25; Gur Corporation v Trust Bank of Africa
Ltd [1987] QB 599; Veysi Dag v Secretary of State (2001) 122 ILR 529,
535–6; British Arab Commercial Bank plc v National Transitional Council
of the State of Libya [2011] EWHC 2274 (Comm), §25 (Blair J).
89
[1987] QB 599, 625. Cf Mann (1987) 36 ICLQ 348, 349–50; Beck
(1987) 36 ICLQ 350.
90
[1993] QB 54, 68.
91
Ibid, 65. Further Sierra Leone Telecommunications Co Ltd v Barclays
Bank [1998] 2 All ER 821.
92
[1921] 1 KB 456.
93
Haile Selassie v Cable & Wireless Ltd (No 2) [1939] 1 Ch 182.
94
But cf Gdynia Ameryka Linie Zeglugowe AS v Boguslawski [1953] AC
11 (recognition of the new de iure government’s acts only retrospective
‘in so far as those acts related to matters under its control at the time
when the acts were done’); Civil Air Transport Inc v Civil Air Transport
Corporation [1953] AC 70 (‘retroactivity of recognition operates to
validate acts of a de facto Government which has subsequently become
the new de iure government, and not to invalidate acts of a previous de
iure Government’).
95
Generally: Mann (1987) 36 ICLQ 348.
96
Lauterpacht (1947) 145.
97
E.g. City of Berne v Bank of England (1804) 9 Ves Jun 346; AM
Luther v James Sagor & Co [1921] 1 KB 456. Much later: Adams v
Adams [1971] P 188.
98
Carl Zeiss Siftung v Rayner and Keeler Ltd (No 2) [1967] AC 853.
Also: Greig (1987) 83 LQR 96.
99
100
101
Gur Corporation v Trust Bank of Africa Ltd [1987] 1 QB 599.
Further: Caglar v Billingham (1996) 108 ILR 510, 534.
101
Hesperides Hotels Ltd v Aegean Turkish Holidays [1978] QB 205,
218. Also: Carl Zeiss Siftung v Rayner and Keeler Ltd (No 2) [1967] AC
853, 954 (Lord Wilberforce).
102
Gur Corporation v Trust Bank of Africa Ltd [1987] 1 QB 599, 622.
103
[2002] 1 FLR 956; cf B v B [2000] FLR 707. Also: Parent v Singapore
Airlines & Civil Aeronautics Administration (2003) 133 ILR 264.
Further Ronen (2004) 63 CLJ 268.
104
The Foreign Corporations Act 1991 c 44 (UK) s1, provides that
where a question arises as to the corporate status of a body under the
laws of a non-recognized country, and those laws are applied by a settled
court system, the question shall be determined as if the territory were a
recognized state. Also: UKMIL (1991) 62 BY 535, 565–8.
105
Convention on International Civil Aviation, 7 December 1944, 15
UNTS 295 (as amended).
106
R (on the application of Kibris Türk Hava Yollari & CTA Holidays) v
Secretary of State for Transport [2009] EWHC 1918 (Admin), §§44–67.
The decision was affirmed on appeal: [2010] EWCA Civ 1093.
Further: Talmon (2005) 43 AdV 1; Talmon (2009) 8 Chin JIL 135.
107
R (on the application of Kibris Türk Hava Yollari and CTA Holidays) v
Secretary of State for Transport [2009] EWHC 1918 (Admin), §89.
108
E.g. Wulfsohn v RSFSR, 234 NY 372 (1923). On the early US
cases: Dickinson (1931) 25 AJIL 214; Borchard (1932) 36 AJIL 261;
Lauterpacht (1947) 145–50 (comparing early UK and US practice).
109
Further: Kallis (1933) 20 Va JIL 1; Talmon (1998) 34–7; Grant (1999)
49–51.
110
111
Generally: Fountain (1988–89) 29 Va JIL 473.
But cf the special provisions under the Taiwan Relations Act, 22 USC
§3301 and further Mingtai Fire and Marine Insurance Co Ltd v United
Parcel Service, 177 F.3d 1142 (9th Cir, 1999). Further: Lee, The Making
of the Taiwan Relations Act (2010); Ahl, ‘Taiwan’ (2008) MPEPIL. More
generally, non-recognized governments are still offered certain
protections under the US Criminal Code in relation to, e.g. counterfeiting
of currency or killing of officials and representatives: 18 USC §§11, 1116.
Non-recognized states are also entitled to sovereign immunity: Wulfsohn
v RSFSR, 234 NY 372 (1923); cf Klinghoffer v SNC Achille Lauro, 937
F.2d 44 (2nd Cir, 1991).
112
E.g. The Penza, 277 F 91 (EDNY, 1931); The Rogdai, 276 F 294 (ND
Cal, 1920); RSFSR v Cibrario, 235 NY 255 (1923); Republic of Vietnam v
Pfizer Inc, 556 F.2d 892 (8th Cir, 1977). However, the courts remain open
to recognized governments with which the US does not have diplomatic
relations: Banco Nacional de Cuba v Sabbatino, 376 US 398, 408–12
(1964).
113
E.g. Ministry of Defence of the Islamic Republic of Iran v Gould Inc,
No CV 87–03673-RG, US Dist Ct, CD Cal, 14 January 1988 (1988)
82 AJIL 591; Petrochemical v The M/T Stolt Sheaf, 860 F.2d 551 (2nd
Cir, 1988).
114
E.g. Republic of Panama v Republic National Bank of New York, 681
F.Supp 1066 (SDNY, 1988); Republic of Panama v Southern International
Bank, 682 F.Supp 1144 (SD Fla, 1988). Further: Fountain (1988–89)
29 Va JIL 473.
115
E.g. The Maret, 145 F.2d 431, 439 (3rd Cir, 1944); Transportes
Aerosde Angola v Ronair, 544 F.Supp 856, 863–4 (D Del, 1982)
(corporations owned by non-recognized governments permitted to
appear); Russian Volunteer Fleet v United States, 282 US 481, 492
(1931) (alien investor from non-recognized country entitled to
compensation for expropriation). Further: 1 Restatement Third §205,
comment (a).
116
213 NYS (2d) 417 (1961).
117
Kunstsammlungen zu Weimar v Elicofon, 358 F.Supp 747, 757
(EDNY, 1972), affirmed on appeal 478 F.2d 231 (2nd Cir, 1973). The US
later recognized the government of East Germany, after which it was
permitted to intervene: Federal Republic of Germany v Elicofon, 358
F.Supp 747 (EDNY, 1972).
118
119
Texas v White, 74 US 700 (1868).
Carl Zeiss Siftung v VEB Carl Zeiss, 293 F.Supp 892, 900 (SDNY,
1968). Also: Sokoloff v National City Bank of New York, 239 NY 158
(1924); Federal Republic of Germany v Elicofon, 358 F.Supp 747 (EDNY,
1972); Daniunas v Simutis, 481 F.Supp 132 (SDNY, 1978); Matter of
Bielinis, 284 NYS.2d 819 (1967); Matter of Luberg’s Estate, 243 NYS.2d
747 (1963). Further: Lauterpacht (1947) 147; 1 Restatement Third §202,
reporter note 6; ibid, §205, reporter note 3.
120
Lauterpacht (1947) 147.
121
186 NE 679, 882 (1933); cf Latvian State Cargo & Passenger SS
Line v McGrath, 188 F.2d 1000 (DC Cir, 1951). Further: Dickinson (1933)
27 AJIL 743.
122
Maret, 145 F.2d 431 (3rd Cir, 1944).
123
Further: Autocephalous Church of Cyprus v Goldberg and Feldman
Fine Arts Inc, 917 F.2d 278 (2nd Cir, 1990).
124
E.g. Schinz v High Court of Zurich (1926) 3 ILR 32; Exportchleb Ltd v
Goudeket (1935) 8 ILR 117; Mrs X v Y (1946) 13 ILR 19; South Moluccas
v The Netherlands New Guinea (1954) 21 ILR 48; VEB Carl Zeiss Jena v
Carl Zeiss Heidenheim (1965) 72 ILR 550; Billerbeck and Cie v BergbauHandel GmbH (1967) 72 ILR 69; Wang v Switzerland (2004) ILDC 90.
125
On the early European cases: Lauterpacht (1947) 151–3.
126
(1925) 3 ILR 31. Further: Soviet Government v Ericsson (1921) 1 ILR
54; In re Serventi (1921) 1 ILR 294; Bekker v Willcox (1923) 2 ILR
50; Soviet Representation in Czechoslovakia (1925) 3 ILR 60; Chiger v
Chiger (1926) 3 ILR 26; Digmeloff v State Civil Officer of St Josse-TenNoode (1928) 4 ILR 69; Krimtschansky v Officier de l’Etat Civil de
Liège (1929) 5 ILR 47; Nonis v Federation of Seamen (1930) 5 ILR
45; Société Despa et Fils v USSR (1931) 6 ILR 37; Cibrario v Russian
Trade Delegation (1931) 6 ILR 54; International Registration of TradeMark (1959) 28 ILR 82.
127
Warenzeichenverband Regekungstechnik EV v Ministry of Trade and
Industry (1975) 77 ILR 571, 571.
128
Democratic Republic of East Timor & Fretilin v State of the
Netherlands (1980) 87 ILR 73, 74. Also: FRG-GDR Relations
Case (1973) 78 ILR 149, 165–6.
129
130
Italy v Djukanovic (2004) ILDC 74.
130
Case C-432/92, R v Minister of Agriculture, Fisheries and Food, ex
parte SP Anastasiou (Pissouri) Ltd (1994) 100 ILR 257.
131
Belgium, France, Germany, Ireland, Italy, Netherlands: ibid, 270.
132
(1994) 100 ILR 257, 276. Further: Namibia, ICJ Reports 1971 p 16,
56.
133
(1994) 100 ILR 257, 281.
134
Ibid, 297. But cf Case C-219/98, R v Minister of Agriculture, Fisheries
and Food, ex parte SP Anastasiou (Pissouri) Ltd [2000] ECR I-5268.
135
Ronen (2011) 88–98.
136
Loizidou v Turkey (Merits) (1996) 108 ILR 443, 468; 474 (Judge
Baka, diss), 481 (Judge Pettiti, diss). Further: Foka v Turkey [2008]
ECtHR 28940/95; Protopapa v Turkey [2009] ECtHR 16084/90.
137
(2001) 120 ILR 10, 42–6.
138
Ibid, 44–5.
139
4 November 1950, 213 UNTS 222.
140
[2010] ECtHR 46113/99, §§68–129. Further: Ronen (2011)
95; Loucaides (2011) 24 LJIL 435, and see chapter 27.
(p. 166) 7 International Organizations
1. Introduction
As discussed in chapter 1, in the late eighteenth and nineteenth century
states developed multilateral forms of co-operation, supplementing
reliance on bilateral treaties and diplomacy. These included the first
international organizations. Initially the mandates of such organizations
were constrained, for example the European Commission of the Danube
(1856) and the International Telegraph Union (1865). But after 1920 the
League of Nations and then the United Nations provided a more
developed notion of universal peacekeeping arrangements, and many
specialized institutions concerned with technical, economic, and social
co-operation were established. The study of international organizations
and the multiplicity of institutions and agencies is a department of the
political and social sciences: the present chapter can only indicate the
main legal problems arising from interstate organizations.1
2. Legal Personality
(A) International Organizations as Subjects of International
Law
Given the large number of international organizations extant,2 it is difficult
to find a catch-all definition that is neither under- nor over-inclusive. One
possible starting point (p. 167) is Article 2(a) of the ILC’s 2011 Draft
Articles on the Responsibility of International Organizations, which
provides:
‘[I]nternational organization’ means an organization established by treaty or other
instrument governed by international law and possessing its own international legal
personality. International organizations may include as members, in addition to States,
3
other entities.
Whilst useful, this definition was developed in the context of international
responsibility, which presupposes legal personality. It is possible for an
international organization to have no such personality but still—by virtue
of its treaty-based, interstate character and activity—be considered an
international organization. Nonetheless, most international organizations
will possess separate personality.
Although international organizations have existed since the midnineteenth century, attribution of legal personality to them is relatively
new.4 A shift began aft er 1919, though it was characterized by
equivocation. The Covenant of the League of Nations made no reference
to legal personality.5 By 1926, however, its modus vivendi with
Switzerland included recognition of its separate existence on the
international plane.6
Then, in Reparation for Injuries7 the International Court went a step
further. Following the assassination of the United Nations’ envoy Count
Folke Bernadotte and his entourage by Zionist nationalists,8 the Court
was asked to advise on the capacity of the UN, as an organization, to
bring an international claim for injury to its personnel on the lines of
diplomatic protection, and in respect of injury to the UN caused by the
harm to its agents. The Charter did not contain any explicit provision on
the international legal personality of the UN,9 but the Court drew on the
implications of
References
(p. 168) the instrument as a whole, noting that, if the UN was to fulfil its
tasks, ‘the attribution of international personality is indispensable.’10
The Court then analysed the Charter itself and identified those textual
elements that implied that the UN was intended to possess such
personality, noting, inter alia, the defined position of Members in relation
to the UN and the requirement that they assist it (Article 2(5)), the
obligation to comply with and enforce decisions of the Security Council
(Article 25), the capacity of the General Assembly to make
recommendations to Members (Article 10), the grant of legal capacity,
privileges, and immunities to the UN in the territory of its Members
(Articles 104 and 105), and the conclusion of treaties between the UN
and its Members (e.g. Article 43). These, the Court held, indicated that:
the Organization was intended to exercise and enjoy, and is in fact exercising and
enjoying, functions and rights which can only be explained on the basis of the
possession of a large measure of international personality and the capacity to operate
upon an international plane. It is at present the supreme type of international
organization, and it could not carry out the intentions of its founders if it was devoid of
international personality. It must be acknowledged that its Members, by entrusting certain
functions to it, with the attendant duties and responsibilities, have clothed it with the
competence required to enable those functions to be effectively discharged.
Accordingly, the Court has come to the conclusion that the Organization is an
international person. That is not the same thing as saying that it is a state, which it
certainly is not, or that its legal personality and rights and duties are the same as those
of a state. Still less is it the same thing as saying that it is ‘a super-state’, whatever that
expression may mean.…What it does mean is that it is a subject of international law and
capable of possessing international rights and duties, and that it has capacity to maintain
11
its rights by bringing international claims.
(B) Indicia of International Legal Personality
Two main theories have been offered to explain the decision.12 The first
is that it is the will of the founders that determines whether an
international organization possesses international legal personality.13 If
international law is based on the freely expressed consent of states, they
may breathe personality into an organization.14 But some organizations
are not expressly endowed with international legal personality forcing its
generation via inference.15 This problem was pronounced with
organizations
References
(p. 169) formed in the early years of the United Nations,16 but has
declined with respect to later institutions.17More substantial is the
question how organizations created by some states interact with third
parties, whose refusal to acknowledge personality could reflect upon the
potential emptiness of the concept. One solution is to condition
personality on recognition by third parties, but in practice the institution of
recognition has not been extended to organizations.18
The alternative and better view is that international organizations are
capable of attaining ‘objective’ legal personality independent of
recognition by performing certain functions on the international
plane.19 This was the position taken, at least in part, by the Court
in Reparation for Injuries.20 The criteria for the possession of legal
personality by an international organization may be summarized as
follows:21
(1) a permanent association of states, or other organizations, with
lawful objects, equipped with organs;
(2) distinction, in terms of legal powers and purposes, between
the organization and its member states; and
(3) the existence of legal powers exercisable on the international
plane and not solely within the national systems of one or more
states.22
An organization may exist but lack the organs and objects necessary for
legal personality. The Commonwealth of Nations was such an
association initially: it is now regarded as a distinct legal entity, though
lacking a formal constitution.23 Similarly, a multilateral convention may be
institutionalized to some extent with provision for regular conferences, yet
not involve any separate personality.24 On the other hand joint agencies
of states,25for example an arbitral tribunal or a river commission, may
References
(p. 170) have restricted capacities and limited independence but be
regarded as a separate legal person.26This applies also to agencies and
subsidiary organs of organizations, such as the United Nations
Conference on Trade and Development (UNCTAD), the High
Commissioner for Refugees, and the Technical Assistance Board in
relation to the United Nations.27
Secondly, if an organization has considerable independence and power
to intervene in the affairs of member states, the arrangement may
resemble a federal union. The EU is sometimes characterized in this way,
though this is debatable, as it is only competent to exercise those powers
attributed to it by its member states.28
Thirdly, while an organization with legal personality is normally
established by treaty, the source could be the resolution of a conference
of states or a uniform practice.29 The constitutional basis of the United
Nations Industrial Development Organization (UNIDO) is to be found in
resolutions of the General Assembly,30 whilst the Organization of the
Petroleum Exporting Countries (OPEC) and the Organisation for Security
and Cooperation in Europe (OSCE) derive from government consensus
reached at international conferences.31
In short, at the international level there is no legal and administrative
process comparable to the municipal concept of incorporation. Where
there is no constitutional system for recognizing and registering
associations as legal persons, the primary test is functional. Indeed, it
would be fatuous to work from an abstract model in face of the existence
of some 250 organizations of states, varying from the universal to the
bilateral.
(C) Objective Personality and Third States
One attribute of the objective theory of legal personality for international
organizations is that it renders that personality opposable to third states,
even though the
References
(p. 171) organization in question is normally the creation of treaty. This is
made clear in the ILC’s commentary to Draft Article 2, where it is said
that ‘it would not be necessary to enquire whether the legal personality of
an organization has been recognized by an injured State before
considering whether the organization may be held internationally
responsible according to the present articles’.32 In this, the ILC saw as
conclusive the decision in Reparation for Injuries, with its emphasis on
‘objective legal personality’.33 Although the Court conditioned its opinion
on the quantity and standing of the founding Members of the United
Nations, there are good reasons for applying this proposition
to all international organizations, and in practice this has occurred.
34
3. Privileges and Immunities34
In order to function effectively, international organizations require
minimum standards of freedom and legal security for their assets,
headquarters, and other establishments, and for their personnel and
accredited representatives of member states. By analogy with diplomatic
privileges and immunities, the necessary privileges and immunities of
agents of international organizations, as well as of the organizations
themselves. in respect of the territorial jurisdiction of host states (that is,
those states which have agreed to house the headquarters or other
activities of an organization) may be recognized. The analogy is not
perfect, however, and three difficulties are apparent.35 First, in contrast to
diplomatic immunity, it is normal for officials of an organization to have
the nationality of (and often a special relationship with) a member state,
including the host state. A national of the receiving state who is a
member of a foreign mission will only be extended diplomatic immunity
on a narrow and highly conditioned basis.36 Secondly, a diplomat,
although immune from the jurisdiction of the receiving state, remains
under the sending state’s jurisdiction. Thirdly, whereas reciprocity
provides an incentive for states to respect international diplomatic law, an
international organization does not have access to an effective regime of
sanctions.
References
(p. 172) (A) Sources of Privileges and Immunities37
(i) Treaty law
The privileges and immunities of international organizations derive from
multiple sources. In the first place, the constituent instrument of the
organization will ordinarily contain at least a general provision38 stating
that the organization and its personnel are to be accorded immunity.
Article 105 of the Charter is emblematic:
1. The Organization shall enjoy in the territory of each of its
Members such privileges and immunities as are necessary for the
fulfilment of its purposes.
2. Representatives of the Members of the United Nations and
officials of the Organization shall similarly enjoy such privileges
and immunities as are necessary for the independent exercise of
their functions in connexion with the Organisation.39
A further source of privileges and immunities are separate multilateral
agreements. The Convention on the Privileges and Immunities of the
United Nations40 is the example most frequently identified as such,
having inspired other similar instruments, notably the Convention on the
Privileges and Immunities of the Specialized Agencies.41 These may be
further cemented by headquarters agreements between the organization
and host state, for example the agreement between the United Nations
and the US with respect to the UN headquarters in New York.42
(ii) National law
National law, especially host state law, is central in ensuring the
privileges and immunities of international organizations. It will generally
be required to implement relevant international agreements.43 It may add
to these agreements, or act as substitute where the state in question has
yet to enter into them.
References
(p. 173) (iii) Customary international law
Then there is the question of the role of customary international law in
this context.44 Some governments and municipal courts have adopted
the view that immunity exists in custom.45 The Restatement
Third specifies that international organizations are entitled in custom to
‘such privileges and immunities as are necessary for the fulfilment of the
purposes of the organization, including immunity from legal process and
from financial controls, taxes and duties’.46 Immunity has occasionally
been recognized by the courts of non-member states,47 and aspects of
the immunity may have the status of general principles of law, though it
has been suggested that this may only extend to the United Nations
system, due to its universal character.48
As to organizations of more limited membership, the question remains
open.49 Speaking of the International Tin Council, Bingham J said:
[I]nternational organizations such as the ITC have never so far as I know been
recognized at common law as entitled to sovereign status. They are accordingly entitled
to no sovereign or diplomatic immunity in this country save where such immunity is
granted by legislative instrument, and then only to the extent of such grant.50
According to Amerasinghe51 and Higgins,52 this misses the point:
immunity is necessary to allow these organizations to function, and there
is no difference between organizations of limited and unlimited
membership in this respect. It would seem churlish for a state to agree to
house an organization but deprive it of those attributes that would allow it
to function as intended.53 This was observed by the International Court
in Privileges and Immunities of the UN.54
A further question is whether international organizations are entitled to
immunity with respect to non-member states. Practice suggests that
there is no customary rule in point.55 A Malaysian court held that comity
did not require it to acknowledge immunity granted to an organization of
limited membership by the
References
(p. 174) UK.56 A Swiss court held that it lacked jurisdiction over an
employment dispute between an organization and one of its
officials,57 though this may ref lect a sui generis exception as distinct
from a general rule.58
It may be argued, however, that if the personality of international
organizations stems from an objective assessment of their functions and
non-parties are required to accept their separate identity, then this
personality must be populated with the attributes necessary for the
organization to carry out its mandate, including as necessary the
immunity of the institution and its personnel.59
(B) Privileges and Immunities Attaching to the
Organization
As noted, the source of privileges and immunities of most organizations
is a general treaty provision; some international organizations (notably
the UN) have concluded additional treaties articulating these
immunities.60But if they do not, the general provision in the original
agreement will need to be given content. In that case reference may be
had to the functional basis of privileges and immunities, with the
extension of a particular protection predicated on necessity.
Organizations vary, so may their immunities. As experience with UN
peacekeeping forces shows, relations with the host state in particular will
depend a great deal on the specific function involved and all the
circumstances. Decisions of national courts on the immunities of agents
of international organizations do not as yet produce a coherent body of
principles. Some decisions rely by analogy on diplomatic immunities;
others take a more rigorously functional view.61 But four broad immunities
and
References
(p. 175) privileges are generally identified as attaching to—and subject to
waiver by62—the organization.63
The first is immunity from jurisdiction, that is, from all forms of legal
process of the forum state. It includes immunity from execution,
principally in the sense of judgments or arbitral awards.64 An expanded
example may be seen in the General Agreement Article II, section
2,65 which provides that:
the United Nations, its property and assets, wherever located and by whomsoever held,
shall enjoy immunity from every form of legal process, except and in so far as in any
particular case it has expressly waived its immunity.
The key rationale for this immunity is that otherwise member state courts
may purport to rule on the legality of acts of the organization. Some
jurisdictions have sought to limit the scope of this immunity by reference
to acts done iure gestionis as distinct from iure imperii, by analogy with
state immunity.66 But practice is limited to a few states. However a trend
may be developing whereby national courts are willing to deny immunity
with respect for claims for denial of justice before administrative tribunals
internal to the organization,67 due to the circumstantial inconsistency of
the immunity with other supervening principles of international law. This is
notable in the case of the European Court of Human Rights. In Waite and
Kennedy v Germany68 and Beer and Regan v Germany69 the Court held
that Germany’s maintenance of the immunity of the European Space
Agency (ESA) was consistent with its obligations under ECHR Article
6(1) regarding the right to a fair trial.70The Court held, however, that
maintenance of the immunity could not be reflexive, and that access to
the German courts with respect to actions against international
organizations could only be refused to the extent that the organization
possessed an internal process of review that could protect adequately
the Article 6(1) rights of any claimants, a requirement fulfilled by the ESA
Appeals Board.71
References
(p. 176) The second common protection concerns the inviolability of the
organization’s premises and archives.72 In practice, this mirrors the
protection granted to diplomatic missions; the authorities may not enter
the premises of the organization, even where effecting an arrest or
serving a writ, without the consent of the administrative head of the
organization. On rare occasions this protection has been breached: for
example, schools administered by the United Nations Relief and Works
Agency in the Gaza Strip were damaged severely through the actions of
the Israeli Defence Force during 2009 operations against Hamas.73
The third protection afforded to international organizations pertains to
currency and other fiscal matters.74Many international organizations
administer considerable funds, often contributed by their membership,
the mobility of which is crucial to their operation. General Convention
Article II, section 5 provides:
Without being restricted by financial controls, regulations or moratoria of any kind,
(a) the United Nations may hold funds, gold or currency of any kind and operate
accounts in any currency;
(b) the United Nations shall be free to transfer its funds, gold or currency from
one country to another or within any country and to convert any currency held by it
75
into any other currency.
This protects the United Nations from municipal exchange control
regimes. It is supplemented by Article II, section 7, which protects it from
direct taxation and customs duties, except municipal taxes which are
merely a charge for the use of public utilities.76
The fourth functional protection extended to international organizations is
freedom of communication.77 This is modelled on the similar freedom of
diplomatic missions, and includes freedom from censorship, the right to
use codes and couriers, the privilege of the diplomatic bag and its
attendant inviolability, and, in the territory of each state, treatment of
official communications in a manner as favourable as that accorded to
diplomatic missions. The exemplar is General Convention Article III,
sections 9 and 10.78
(p. 177) (C) Privileges and Immunities Attaching to
Personnel
The privileges and immunities of personnel are again functional:
international organizations require people to make decisions and carry
them out.79
(i) Immunity attaching to organization officials
There is no general agreement on the scope of immunity in the absence
of treaty. The minimum principle appears to be that officials of
international organizations are immune from local jurisdiction and
execution in respect of all official acts. Thus General Convention Article
VII, section 18 provides:
Officials of the United Nations shall:
(a) be immune from legal process in respect of words spoken or written and all
acts performed by them in their official capacity;
(b) be exempt from taxation on the salaries and emoluments paid to them by the
United Nations;
(c) be immune from national service obligations;
(d) be immune, together with their spouses and relatives dependent on them,
from immigration restrictions and alien registration;
(e) be accorded the same privileges in respect of exchange facilities as are
accorded to the officials of comparable ranks forming part of diplomatic missions
to the Government concerned;
(f) be given, together with their spouses and relatives dependent on them, the
same repatriation facilities in time of international crisis as diplomatic envoys;
(g) have the right to import free of duty their furniture and effects at the time of
first taking up their post in the country in question.
Whilst such provisions ordinarily extend such immunity to officials of the
organization only, some institutions cast the net wider. The ICC
Immunities Agreement and the agreement between the UN and Sierra
Leone regarding the Special Court for Sierra Leone80 both grant
immunity to counsel and persons otherwise assisting,81 witnesses82 and
victims.83 The ICSID Convention provides for the immunity of parties,
agents, counsel, advocates, witnesses, and experts (Articles 21 and 22).
(p. 178) Difficulties can arise in determining whether an individual has
committed an act in an official capacity.84The International Court has held
that any determination of an official act made by the Secretary-General is
binding,85 a position not adopted with alacrity by states.86
Treaties may also require that certain officials be given the equivalent of
full diplomatic immunity. Both the General Convention (Article V, section
19) and the Council of Europe Immunity Agreement (Article 16) require
that such protection be extended to the Secretary-General and Assistant
Secretaries-General, their spouses and minor children. The immunity
given to judges of the International Court87 and other holders of judicial or
prosecutorial offices88 is also equated to diplomatic privileges.
(ii) Immunity attaching to state representatives
The agreements that provide immunity to the officials of international
organizations usually extend protection to state representatives to the
organization.89 General Convention Article IV, section 11 grants
representatives to the United Nations an even broader set of immunities
than those ordinarily granted to officials of the Organization. Indeed state
representative immunity has much more in common with full diplomatic
immunity90than the protections afforded to officials of the
organization,91 though the two do not completely align, notably in the
frequent restriction that a state representative is only granted immunity
from legal process with respect to acts done in an official capacity.92
State representatives to international organizations are not ordinarily
accredited to the host state but to the organization itself.93 A notable
exception to this practice is contained within UN Headquarters
Agreement, Article IX, section 25, which requires that apart from
permanent representatives and certain other high-ranking officials, the
staff of the mission must be agreed between the sending state, the US
and the Secretary-General.
References
(p. 179) The question of privileges and immunities of state
representatives is addressed by the Vienna Convention on the
Representation of States in their Relations with International
Organizations of a Universal Character,94 adopted in 1975 in face of
opposition from the major host states. It shows no sign of entering into
force, and is an example of the futility of majoritarian processes in
matters where a balance between the majority (sending states) and a
controlling minority (host states) is essential.95
4. Performance of Acts in the Law
The analogue for the exercise of legal functions in international relations
is the state, in spite of the obvious analogical dangers. The most viable
type of organization will have legal powers similar to those normally
associated with statehood. However, the individuality of each
organization must be emphasized: in the first place the extent of legal
capacity will be found in the constituent treaty of the organization.
(A) Treaty-Making Power96
Although the capacity of international organizations to enter into treaties
was originally doubted,97 it is now accepted.98 The Vienna Convention on
the Law of Treaties between States and International Organizations or
between International Organizations was adopted on 21 March 1986;99 it
is modelled, perhaps too closely, on the 1969 Vienna Convention on the
Law of Treaties (VCLT).100 It is open for accession ‘by any organization
which has the capacity to conclude treaties’ (Article 84). It is not yet in
force but acts as a legal and practical guide.
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(p. 180) The existence of legal personality does not necessarily imply
power to make treaties, though in practice organizations readily assume
a treaty-making power. Additionally, the constituent instrument may limit
the treaty-making powers of the organization to certain organs.101 The
competences of the organization as a whole provide a further
limitation.102 Where an agreement is entered into, however, the
organization as a whole will be bound,103 even, potentially, where the
contracting organ is acting ultra vires.104 On the other hand while the
organization is bound by its organs, member states are not as such
bound due to their separate legal personality.105
Constituent instruments do not normally confer a general treaty-making
power, but this may be (somewhat problematically) established via the
interpretation of the instrument as a whole or the doctrine of implied
powers.106 The UN Charter authorizes the conclusion of trusteeship
agreements (Chapter 12), relationship agreements with the specialized
agencies (Articles 57, 63), specialized agreements permitting national
armed forces to be placed at the disposal of the Security Council (Article
43) and conventions concerning privileges and immunities (Article
105(3)). But it has concluded headquarters agreements and agreements
on co-operation with other organizations, without express authorization.
Thus a specific constrained power to enter into treaties is used to infer
legal personality, which is in turn used to infer a general treating-making
capacity.107
(B) Capacity to Espouse International Claims
In Reparation for Injuries, the International Court held unanimously that
the United Nations was a legal person with capacity to bring claims
against both member and nonmember states for direct injuries to the
Organization.108 The power to bring such claims was apparently
regarded as concomitant with legal personality. However, the Court also
expressed its conclusion in terms of implied powers and
109
effectiveness.109 Similar reasoning may apply to other organizations. The
capacity to espouse claims thus depends (a) on the existence of legal
personality, and (b) on the interpretation of the constituent instrument in
the light of the functions of the particular organization.110 In contrast, the
existence of immunities is not conditioned on the separate legal
personality of the entity concerned.
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(p. 181) As to functional protection of agents, the Court in Reparation for
Injuries used similar reasoning to justify its opinion that the UN could
espouse claims for injury to its agents.111 On this point the Court was not
unanimous,112 and certainly this capacity cannot readily be invoked by
other organizations, especially when their functions do not include
peacekeeping.113 The principle is now largely (but not entirely) uncontroversial.114 The situation remains particularly delicate when a claim is
made on behalf of an agent who is a national of the respondent
state.115 The Court addressed this difficulty, noting that:
The action of the Organization is in fact based not upon the nationality of the victim but
his status as an agent of the Organization. Therefore it does not matter whether or not
the State to which the claim is addressed regards him as its own national, because the
question of nationality is not pertinent to the admissibility of the claim.116
A problem which remains to be solved is the determination of priorities
between the state’s right of diplomatic protection and the organization’s
right of functional protec-tion.117 Again by analogy with states, it may be
that the right to espouse is concurrent but subject to a rule against double
recovery.
(C) Standing before International Tribunals
When an organization has legal personality it has in principle locus
standi before international courts and tribunals. But everything depends
on the statute governing the adjudicatory body or
the compromis concerned, and in many cases international organizations
have no such access.118 Notably while certain organizations have access
to the International Court through its advisory jurisdiction, the Statute still
limits standing to states (Article 34).119 But international organizations
may have standing before international tribunals where the jurisdiction of
the tribunal may be activated through the treaty-making or contracting
capacity of the organization.120
(p. 182) (D) Capacity to Own Property
Another element of legal personality is the capacity for an international
organization to own property under the municipal law of a state. This is a
simple matter of functional necessity.121 Conversely ownership of
property may act as an indication of legal personality.122 Any property so
owned falls under the aegis of the organization’s privileges and
immunities.
(E) Responsibility123
If an organization has a legal personality distinct from that of the member
states, and performs functions which in the hands of states may give rise
to responsibility, then it is in principle reasonable to impute responsibility
to that organization.124 Such claims are ordinarily predicated on the
exhaustion of ‘local remedies’, that is, before any competent organ of the
organization.125 This follows generally from the Court’s reasoning
in Reparation for Injuries. The most notable development in the law of
responsibility for international organizations is its codification in the ILC’s
Draft Articles of 2011, a project which owes much to the Commission’s
previous work on state responsibility. Under Draft Article 3, every
internationally wrongful act by an organization entails its international
responsibility (see also Draft Article 4). Similar rules have also been
adopted with respect to attribution (Draft Articles 6 to 9), breach of
international obligations (Draft Articles 10 to 13), circumstances
precluding wrongfulness (Draft Articles 20 to 27), the content of
international responsibility (Draft Articles 28 to 42) and its implementation
(Draft Articles 41 to 57).
Moreover, separate legal personality presumptively prevents liability from
attaching to an organization’s members, as demonstrated in
the International Tin Council cases. This litigation commenced as a
consequence of the inability of the ITC to meet its liabilities; the issues of
public international law (e.g. the question of the residual responsibility of
the member states) were not faced head on by the English courts and the
decisions turned to an extent on the construction of the International Tin
Council (Immunities and Privileges) Order in relation to matters
essentially of English law.126
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(p. 183) In the Court of Appeal in the ‘direct actions’ by creditors against
the member states Kerr LJ concluded:
In sum, I cannot find any basis for concluding that it has been shown that there is any
rule of international law, binding upon the member states of the ITC, whereby they can
be held liable, let alone jointly and severally, in any national court to the creditors of the
ITC for the debts of the ITC resulting from contracts concluded by the ITC in its own
name.127
The House of Lords agreed with this view.128
In adopting the Draft Articles, the ILC confirmed that member states
cannot generally be regarded as responsible for the internationally
wrongful acts of the organization. However, it would be contrary to good
sense if one or a few states could avoid responsibility by creating an
international organization to do something they could not lawfully do
themselves.129 But regard must be had to each set of circumstances. In
relation to the use of forces under UN authority in peacekeeping
operations, the general practice is that financial responsibility is
determined by agreements between contributing governments and the
UN,130 and between the latter and the host state. Draft Article 7 here
contributes, providing that:
The conduct of an organ of a State or an organ or agent of an international organization
that is placed at the disposal of another international organization shall be considered
under international law an act of the latter organization if the organization exercises
effective control over that conduct.
Additionally, provision is made at length in Part V for the joint
responsibility of states and organizations with respect to internationally
wrongful acts. States may be held responsible for aiding and abetting
wrongful acts by organizations (Draft Article 58), as well as the exercise
of direction or control (Draft Article 59), coercion (Draft Article 60), and
the acceptance of responsibility (Draft Article 62). Of special note is Draft
Article 61, which provides that a state member may incur international
responsibility if it causes an organization to commit an act that would
have breached an international obligation if committed by the state,
irrespective of whether the organization by so doing commits a breach.
In practice the United Nations has accepted responsibility for the acts of
its agents.131 However, in the case of more specialized organizations
with a smaller membership, it may be necessary to fall back on the
collective responsibility of members. There is a strong presumption
against a delegation of responsibility by a state to an organization
References
(p. 184) arising simply from membership. But the organization may
occasionally be conceived of as creating risks and incurring liabilities in
the course of its activities and as a vehicle for the distribution of costs
and risks. This can be seen from Article XXII(3) of the Convention on
International Liability for Damage Caused by Space Objects, which,
subject to certain preliminary conditions, provides that ‘[i]f an international
intergovernmental organization is liable for damage by virtue of the
provisions of this Convention, that organization and those of its members
which are States Parties to this Convention shall be jointly and severally
liable’.132
5. Interpretation of the Constituent
Instrument133
Unlike states, international organizations do not possess general
competence: they may only exercise those powers expressly or impliedly
bestowed upon them. The fundamental rule of the law of international
organizations is the principle of attributed powers or speciality
(compétences d’attribution). This was stated by the International Court in
the Nuclear Weapons opinion:
[I]jnternational organizations…do not, unlike States, possess a general competence.
International organizations are governed by the ‘principle of speciality’, that is to say, they
are invested by the States which create them with powers, the limits of which are a
134
function of the common interests whose promotion those States entrust to them.
135
(A) Identity of the Interpreter135
(i) Self-interpretation within international organizations
Within international organizations, each organ must interpret its own
jurisdiction, irrespective of whether a power is expressly
conferred.136 The International Court
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(p. 185) accepted this reality in Certain Expenses, holding that, in the
absence of further direction within the Charter, each constituent organ of
the United Nations was entitled to determine its jurisdiction in the first
instance. Moreover such determinations, when accompanied by an
assertion of propriety, are presumptively intra vires.137 Full advantage of
this has been taken by the General Assembly, which has determined its
own jurisdiction on multiple occasions.138 The Security Council has also
been willing to engage in such introspection, notably when considering
the meaning of ‘threat to the peace’ under Article 39 of the Charter.
(ii) Judicial and other third-party interpretation
In the event of dispute as to the interpretation of an organization’s
constituent instrument, the instrument itself may provide for resolution
through a judicial organ. In the context of the UN, this is the International
Court which, through its advisory jurisdiction, is able to opine on the
capacity of the organs139 and specialized agencies of the
Organization.140 But advisory opinions are not—absent special
agreement141— binding on the organization concerned, although in
practice implementation is normal.
In Certain Expenses, the Court faced an issue on which members of the
United Nations were divided, the constitutional basis for the use of armed
forces in the United Nations Emergency Force (UNEF) and the United
Nations Mission in the Congo (ONUC). The Court concluded that ‘when
the Organization takes action which warrants the assertion that it was
appropriate for the fulfilment of one of the stated purposes of the United
Nations, the presumption is that such action is not ultra vires
References
(p. 186) the Organization’.142 The majority opinion held that the
operations were in pursuance of the stated purposes and that the
corresponding expenses were ‘expenses of the Organization’ under
Article 17(2). The Opinion has been cogently criticized on the ground that
it permits non-obligatory recommendations to result in binding financial
obligations, giving the General Assembly a supranational budgetary
power denied to more integrated communities.143 To speak of
‘institutional effectiveness’ or ‘implied powers’ is to beg the question.
More generally, this type of judicial control does not reconcile major
divisions between member states: indeed, the opinion could have had a
disastrous outcome had the issue of arrears attributable to peacekeeping
not been settled by negotiation.144
Aside from judicial options for the interpretation of a constituent
instrument, other sui generis options may also exist.145 A constitution
may call for the convening of an arbitral tribunal to hear
disputes.146 Alternatively, an arbitral tribunal established under an
agreement between an organization and another party may have to
interpret the organization’s constituent instrument.147 Finally, an
international tribunal may interpret an organization’s constituent
instrument incidentally to determining its own jurisdiction. For example
in Tadić, the International Criminal Tribunal for the Former Yugoslavia
held that the Security Council had the capacity to establish an
international criminal tribunal under Article 41 of the Charter.148
(B) Principles of Interpretation149
Whilst acknowledging that ‘the constituent instruments of international
organizations are multilateral treaties, to which the well-established rules
of treaty interpretation apply’, the Court has sought to distinguish ‘certain
special characteristics’:
[T]he constituent instruments of international organizations are also treaties of a
particular type; their object is to create new subjects of law endowed with a certain
autonomy, to which the parties entrust the task of realizing common goals. Such treaties
can raise specific problems of interpretation owing, inter alia, to their character which is
conventional and at the same time institutional; the very nature of the organization
created, the objectives
References
(p. 187) which have been assigned to it by its founders, the imperatives associated with
the effective performance of its functions, as wellas its own practice, are all elements
which may deserve special attention when the time comes to interpret these constituent
treaties.150
Thus, when the issue of interpretation relates to an organization’s
constitution, a flexible and even teleological approach may be evident.
However, this does not justify the outright abandonment of the unitary
process of interpretation outlined in VCLT Article 31(1), as distinct from
the reorganization of priorities within it.
In Reparation for Injuries the Court observed that ‘the rights and duties of
an entity such as the Organization must depend upon its purpose and
functions as specified or implied in its constituent documents and
developed in practice’.151 Interpretation is to be accomplished with
reference to what will enable the organization to achieve its goals
effectively.152 Thus the Court has held that a capacity to establish a
tribunal to do justice between the Organization and staff members,
absent an express provision, ‘arises by necessary intendment out of the
Charter’.153
(i) Subsequent practice within the organization
As indicated in the Nuclear Weapons in Armed Conflict advisory opinion,
‘the imperatives associated with the effective performance of its
functions, as well as its own practice, are all elements which may
deserve special attention when the time comes to interpret…constituent
treaties’.154 The Court thus identified the canon of interpretation in VCLT
Article 31(3)(b) (‘any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its
interpretation’) as particularly pertinent. Article 31(3)(b), is not, however, a
perfect analogue, referring impliedly as it does to the practice of states
parties to the treaty rather than that of the organization itself.155
When interpreting the text of a constituent instrument, regard is to be had
to the fact that ‘[t]he practice of the organization may have altered the
156
application of the text without affecting its actual wording’.156 In Namibia,
the Court held, in light of established Security Council practice
concerning the use of the term ‘concurring vote’ in Article 27(3) of the
Charter, that abstention on the part of a permanent member amounted to
a concurrence and did not involve the exercise of a veto.157 The words
were barely capable of sustaining that interpretation, but the supporting
practice was of lengthy duration and universal in its scope.
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(p. 188) (ii) Implied powers
This raises the difficult issue of implied powers of international
organizations. As was stated in Reparation for Injuries:
Under international law, an Organization must be deemed to have those powers which,
though not expressly provided in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties.158
The underlying idea is that an international organization is expected to
evolve and adapt to changes on the international plane.
Obviously the organization’s power of appreciation is wide, but it is not
unlimited. Thus in Nuclear Weapons in Armed Conflict the Court denied
the World Health Organization (WHO) the capacity to address the legality
of the use of nuclear weapons:
In the opinion of the Court, to ascribe to the WHO the competence to address the legality
of the use of nuclear weapons—even in view of their health and environmental effects—
would be tantamount to disregarding the principle of speciality; for such competence
could not be deemed a necessary implication of the Constitution of the Organization in
the light of the purposes assigned to it by its member States.159
The need for balance has led Blokker to identify four limitations on the
existence and scope of implied powers.160 First, the implied power in
question must be essential or indispensable to the organization.
Secondly, it must not contradict the express provisions of the constituent
instrument. Thirdly, it must not violate fundamental rules and principles of
international law. Fourthly, it must not change the distribution of power
between organs of the organization. Testing the boundaries of
interpretive power with respect to constituent instruments may lead to
significant disagreements between members.161
6. Relations of International Organizations
(A) Relations with Members
A central aspect of any international organization is the relationship
between the institution and its membership. International organizations
are normally composed
References
(p. 189) of states, but a number of organizations have operated an
effectively functional concept of membership compatible with their special
purposes. Thus the Universal Postal Union is a union of postal
administrations, the World Meteorological Organization a union of states
and territories having their own meteorological service, and the World
Trade Organization a union of separate customs territories.
Under this type of membership regime dependent territories have a
functional equality with member states. In other organizations dependent
territories are given ‘associate’ membership,162 although in practice they
may have equality with other members.
(i) Decision-making
In the League of Nations decisions could in general only be taken on a
basis of una-nimity.163 Today the principle of majority decision is
commonly adopted,164 although voting rules may vary between
organizations and even between organs of the same organization.165 In
the International Monetary Fund, weighted voting applies; in the UN
Security Council the five permanent members have a veto on matters of
substance.
International organizations are constrained by the fact that they are
ordinarily poorly situated to carry out substantive decisions
directly.166 For example, the Security Council may identify a threat to
international peace or security under Article 39 of the Charter, and
attempt to redress it under Articles 41 and 42, but it does not have an
economy of its own with which to levy sanctions, nor a military with which
to forcibly address the situation (absent troop contribution agreements
under Article 43). In effect all it can do is make decisions binding on its
Members under Articles 25, 39, and 103.167
(ii) Domestic jurisdiction
The type of international co-operation undertaken through an
organization and its constituent treaty will normally leave the reserved
domain of domestic jurisdiction untouched. When the powers of the
organization are extensive, as in the case of the UN, an express
reservation may be inserted (Article 2(7) of the Charter).168However,
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(p. 190) the Charter does not allow the reservation to affect the
application of enforcement measures against states under Chapter VII.
The classic declaration of precisely what constitutes domestic jurisdiction
was made by the Permanent Court in Nationality Decrees, where it was
said that matter remaining solely within the domestic jurisdiction of states
are such ‘matters which are not, in principle, regulated by international
law’ and ‘with respect to which States, therefore, [remain] sole judge’.
The Court continued:
The question whether a certain matter is or is not solely within the domestic jurisdiction
of a State is essentially a relative question; it depends on the development of
international relations.169
Some elaboration has been provided by Nolte:
[T]he concept of ‘domestic jurisdiction’ does not denote specific
areas which are clearly defined, irreducible or in any way
inherently removed from the international sphere. It rather
circumscribes areas which, taking into account the situation in
issue, are not even prima facie affected by rules of international
law.170
But provisions such as Article 2(7) have not proved a generally effective
restraint.171
(iii) Agency172
By agreement between the states and the organization concerned, the
latter may become an agent for member states, and others, in regard to
matters outside its ordinary competence. Conversely, a state may
become an agent of an organization for a particular purpose, for
example, as an administering authority of a trust territory under Article 81
of the UN Charter.173
(iv) Applicable law174
An organization may enter into legal relations both on the international
plane and with persons of private law within particular systems of
municipal law. In principle the relations of the organization with other
persons of international law will be
References
(p. 191) governed by international law, with the norms of the constituent
treaty predominating when relations with member states of the
organizations are concerned. When an issue arises from relations with
persons of private law, the question may be regulated by a choice of law
provision in a treaty which refers to a system of municipal law or possibly
to ‘general principles of law’. Otherwise, everything will depend on the
forum before which the issue is brought and on the rules of conflict of
laws applicable.175
Indeed, for expediency, most international organizations will subject their
contracts to one or more systems of municipal law (usually that of the
host state); thus, the majority of the Universal Postal Union and WHO
contracts are governed by Swiss law, whereas those of the International
Civil Aviation Organization (ICAO) are governed by the law of Quebec.
As for personal injury and other forms of tort, the host state agreement
may provide a regime of liability for the institution.176 Where no indication
exists, however, it is a generally accepted principle that the organization
can be held liable, with the applicable law being that of the place of the
injury.177
(B) Relations with Non-Member States
The general rule is that only parties to a treaty are bound by the
obligations contained in it, and this rule applies in principle to the
constituent instruments of international organizations. An apparent
exception appears in UN Charter Article 2(6), which provides: ‘The
Organization shall ensure that States which are not Members of the
United Nations act in accordance with the Principles so far as may be
necessary for the maintenance of international peace and security’. The
exception, if it is one,178 rests on the special character of the UN as a
quasi-universal organization concerned primarily with the maintenance of
global peace and security.
With international legal personality comes the capacity to contract.
Certainly, third states enter into agreements with organizations which are
valid on the international plane. Non-member states may also enter into
relations with an organization via special missions. However, the
existence of legal personality in an organization does not connote the
spectrum of legal capacities, and the constituent instrument remains the
prime determinant of specific powers in the matter of third state relations.
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(p. 192) (C) Relation to Municipal Law179
An organization will necessarily enter into relations within particular
systems of municipal law, both in the state in which the headquarters are
sited and in the course of its wider activities. The extent to which the
particular system recognizes its legal personality will depend on the local
law as modified by any relevant agreement. Thus the Treaty on the
Functioning of the European Union180 provides in Article 335 that the
Union shall be accorded legal capacity in each member state to the
greatest extent accorded to ‘legal persons under their laws’. In the case
of the ICAO, the Constitution makes no provision as to the precise
content of its legal personality, and as a consequence the status of the
organization varies according to the unco-ordinated municipal laws of its
members.
In the case of the English courts a foreign entity will only be recognized
as having legal personality if it has been accorded it under the law of a
foreign state recognized by the UK. An international organization will be
accorded legal personality (and the capacity to sue) if it has been
accorded the legal capacity of a corporation under the law of one or more
of the member states or of the law of the state where it has its seat, if that
state is not a member state.181
7. Law-Making through Organizations182
The activities of international organizations do not feature in the sources
of international law enumerated in Article 38 of the Statute of the
International Court. But they are well placed to contribute to its
development. This is due primarily to the capacity for international
organizations to express collectively the practice of member states. As
Higgins has noted:
The United Nations is a very appropriate body to look to for
indications of developments in international law, for international
custom is to be deduced from the practice of States, which
includes their international dealings as manifested by their
diplomatic actions and public pronouncements. With the
development of international organizations, the votes and views
of States have come to have legal significance as evidence of
customary law…Collective
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(p. 193) acts of States, repeated by and acquiesced in by
sufficient numbers with sufficient frequency, eventually attain the
status of law. The existence of the United Nations—and
especially its accelerated trend towards universality of
membership since 1955—now provides a very clear, very
concentrated focal point for state practice.183
But the United Nations is a special case in this regard. The same may not
be said for other international organizations, the relative influence of
which will depend on their competence and membership. The varied
roles played by organizations may be distinguished as follows:
(A) Forums for State Practice
Statements on legal questions by governments through their
representatives in organs and committees of organs can provide
evidence of customary law; so also with the voting on resolutions
concerned with legal matters, for example the resolution of the General
Assembly affirming the principles of the Nuremberg Charter.184 In this
sense there is nothing inherently special about an international
organization; whilst it may provide a state with the opportunity to make a
statement on or consider an issue, any opinion so expressed reflects
state practice with respect to that state alone.
(B) Prescriptive Resolutions
A resolution, not in itself binding,185 may prescribe principles of
international law and purport to be merely declaratory. However, the mere
formulation of principles may articulate and develop the law.186 When a
resolution of the General Assembly touches on subjects dealt with in the
UN Charter, it may be regarded as an authoritative interpretation:
examples are the Declaration on the Granting of Independence to
Colonial Countries and Peoples187 and the Friendly Relations
Declaration.188 Resolutions on new legal problems provide a means of
corralling and defining the growing practice of states, while remaining
formally hortatory.189As the International Court said in Nuclear Weapons:
General Assembly resolutions, even if they are not binding, may sometimes have
normative value. They can, in certain circumstances, provide evidence important for
establishing the existence of a rule or the emergence of an opinio juris. To establish
whether this is true of a given General Assembly resolution, it is necessary to look at its
content and the conditions of (p. 194) its adoption; it is also necessary to see whether
an opinio juris exists as to its normative character. Or a series of resolutions may show
the gradua1 evolution of the opinio juris required for the establishment of a new rule.190
(C) Channels for Expert Opinion
Organizations oft en establish bodies of legal experts, the most important
being the ILC,191 the central project of which is the codification and
progressive development of international law as a whole.192 Key areas of
ILC influence include diplomatic and consular relations, the law of the
sea, the law of treaties, and the law of responsibility. Paradoxically
perhaps, it has been less successful in influencing the law of international
organizations, emphasizing the diversity and particularity of that field and
the unwillingness of states to be subject to indirect constraints or
potential liabilities in their action through international organizations.
(D) Decisions of Organs with Judicial Functions
Clearly decisions of judicial organs, such as the International Court and
the Court of Justice of the European Union, contribute to the
development of the law of treaties including principles of interpretation as
well as general international law.193 The specialized function of such
bodies may naturally limit their contribution to the latter.
(E) The Practice of Political Organs
Political organs, and particularly the General Assembly and the Security
Council of the United Nations, make numerous recommendations and
decisions relating to specific issues which involve the application of
general international law or the provisions of the Charter and other
instruments. Such continued practice may have considerable legal
significance. However, as with state practice, the content of the particular
decision and the extent to which legal matters were considered must be
examined before
References
(p. 195) legal weight is ascribed. Furthermore, to give legal significance
to an omission of an organ is problematic Many jurists seem to treat the
decisions of political organs in terms of the arithmetic of voting, the
decisions being taken to represent the views of n states in the majority
and their cogency being roughly on a scale n majority divided
by n minority states. However, states cannot by their control of numbers
of international organizations raise the value of their state practice by
reference to the ‘practice of organizations’.194
On occasion a consistent interpretation by members of an organ based
upon a persistent practice, for example, in matters of voting, adopted by
that organ will be opposable to all members provided that there is
substantial evidence of general acceptance by members of the
organization. This was the basis for the decision in Namibia195 as to the
meaning of Article 27(3) of the Charter.
It may be that the recent jurisprudence of the International Court has
adopted a more liberal view as to the value of the practice of international
organizations. In Nuclear Weapons in Armed Conflict, the Court indicated
that the practice of the organization is one of the ‘elements which may
deserve special attention’ in the interpretation of constituent
instruments.196 The Court went on to consider the practice of the WHO in
deciding whether the legality of nuclear weapons fell within its
competence as a specialized agency. In the Kosovo advisory opinion, the
Court suggested that the ‘silence of the Special Representative of the
Secretary-General in the face of the declaration of independence of 17
February 2008’ corroborated the conclusion that the declaration had
been made outside of the framework established by the Security
Council.197 This is more problematic: the silence of the Special
Representative was more likely a result of the neutrality policy adopted
by the Secretariat than of a legal conviction concerning the authorship of
the declaration.
(F) External Practice of Organizations
Organizations may make agreements with member and non-member
states and with other organizations, and may present international claims
and make official pronouncements on issues affecting them. Subject to
what has been said about the need for care in evaluating acts of political
organs, the practice of organizations provides evidence of the law. In
addition, the behaviour of international organizations ‘in the field’ may
influence the discourse of international law, and thereby indirectly
influence the formation of custom.198
References
(p. 196) (G) Internal Law-Making199
Organizations have considerable autonomy in internal matters such as
procedure and the relations between the organization and its staff.
Resolutions of organs of the United Nations on questions of procedure
create internal law for members. The UN has developed a code of staff
regulations governing the service of its officials, and in 1949 the General
Assembly established the United Nations Administrative Tribunal (UNAT)
to adjudicate upon applications alleging non-observance of employment
contracts of staff members of the Secretariat.200 The United Nations
Internal Justice System has been reformed, and the UNAT has replaced
by a two-tiered system comprising a United Nations Dispute Tribunal and
a United Nations Appeals Tribunal.201Other international organizations
also have staff tribunals which have collectively built up substantial
administrative jurisprudence.202
8. Control of Acts of Organizations
(A) Responsibility under General International Law
There is no compulsory system for review of the acts of international
organizations by external bodies. In this situation limited control is
provided by general international law. As noted, the correlative of legal
personality and a capacity to present international claims is
responsibility.203 Moreover, when creating institutions states cannot
always hide behind the organization when its activities cause damage to
third party interests.
(B) Internal Political and Judicial Control
The question of practical control turns on the powers of the executive and
deliberative organs and the constitutional limitations placed upon
them.204 The division of competence between organs and the limits to
the powers of the organization as a whole may be carefully drawn, and,
as in the UN Charter, the obligations set out in the relevant instrument
may be expressed to apply to the organization itself and (p. 197) its
organs.205Interpretation of the constituent treaty by the organ entrusted
with the power in question is the general rule. Under the Charter,
however, reference to the International Court depends on the readiness
of political organs to request an advisory opinion and to comply with it
once given. Thus in Namibia it was remarked that ‘undoubtedly, the Court
does not possess powers of judicial review or appeal in respect of the
decisions taken by the United Nations organs concerned’. However, the
Court did in fact consider the validity of acts of organs ‘in the exercise of
its judicial function and since objections have been advanced’.206
Notwithstanding the self-determining jurisdiction of many organizations,
there is momentum towards greater accountability, as illustrated by the
establishment of an Inspection Panel within the World Bank in 1993 and
of an Independent Evaluation Office within the International Monetary
Fund in 2001.207 But these bodies remain the exception rather than the
rule.208
Judicial organs may produce an impressive and consistent case-law on
points of interpretation. However, the political organs may support
constitutional developments which are distinctly controversial. An early
example was the use of the Uniting for Peace Resolution to create the
United Nations Emergency Force following the Suez crisis in 1956.209 A
similar situation arose when the Security Council gave a mandate to the
Secretary-General to organize forces for operations in the Congo.210 The
practice of the Security Council in passing overtly ‘legislative’ resolutions
responding to a general phenomenon as a threat to peace under Article
39, rather than a specific, geographically defined, situation is a more
recent example.211
The fact is that individual states have no right of recourse and minority
opinion can be over-ridden.212 States in a minority may withdraw from the
organization, acquiesce in what they regard as unlawful operations, resist
military forces acting under putative authority of the organization, or
simply disobey what they perceive to be a resolution ultra vires. As Judge
Morelli said in Certain Expenses:
In the case of acts of international organizations…there is nothing comparable to the
remedies existing in domestic law in connection with administrative acts. The
consequence of this is that there is no possibility of applying the concept of voidability to
the acts of the United Nations. If an act of an organ of the United Nations had to be
considered as an invalid act, such invalidity could constitute only the absolute nullity of
the act.213
References
(p. 198) States may also withhold financial contributions. This course was
adopted in Certain Expenses, and eventually the General Assembly
requested an advisory opinion.214 Even at this juncture political control
was prominent. The request was formulated in a manner calculated to
narrow the issue artificially to the interpretation of ‘expenses of the
Organization within the meaning of Article 17, paragraph 2, of the Charter
of the United Nations’. Moreover, the Court’s opinion was sought
retrospectively, long after the actions were authorized and enormous
expenditure incurred.215 As a general matter, the problems arising from
the ultra vires acts of international organizations are far from being
resolved. They are certainly not susceptible to resolution through
simplified formulations.216
(C) The Rule of Law and International Organizations
So far one organization seems to escape from this pervasive sense of
non-accountability. Direct judicial control of the acts of organizations by a
specially created organ is rare, but it appears in a developed form in the
European Court of Justice.217 The Court has considerable powers of
review in respect of acts of organs of the European Union on grounds of
incompetence, violation of the relevant treaty or rules for its application,
procedural irregularity, and détournement de pouvoir. The Treaty on the
Functioning of the European Union also provides for a reference to a
judicial organ of the question of compatibility with the basic treaty of an
agreement at the stage of negotiation.218
219
Out of this arose the decisions of the Court in the Kadi cases,219 brought
in response to Security Council Resolutions 1333 and 1373 of 2001 and
successor resolutions220 compelling Members to freeze the assets of
certain suspected terrorists and their listed confederates as part of a
targeted sanctions regime. The identity of those whose assets were to be
frozen was determined by a Security Council committee.221 As originally
composed, listed individuals were given no facility to contest the
decisions made against them or to challenge the measure before a
court.222 The European Court, applying the
References
(p. 199) doctrine of equivalent protection formulated in Bosphorus v
Ireland,223 recognized that implementation of the sanctions required the
positive action of the EU, which was bound to do so in accordance with
fundamental rights as provided by the ECHR. Although the Charter
required that the EU comply with Security Council directives, it did not
require transposition of these resolutions in a strict and pre-determined
fashion.224It was open to the Court to order that the resolutions be
implemented in such a fashion as to respect human rights—and
particularly ECHR Article 6(1).225 This interpretive approach represents a
useful mechanism by which international organizations may be held to
account, an area of weakness in current international law. Difficulties
would arise, however, if the Security Council directed Members to permit
no flexibility in application.226 In such a situation, Article 103 requires the
resolution to be implemented by Members to the letter, irrespective of
how the EU and ECHR view the subject, and irrespective of the absence
of equivalent protection on the level of the Security Council. So the
ultimate question of compliance with authority at the international level
turns out to be a question of the law of international organizations!
References
Footnotes:
1
Generally: Klabbers, An Introduction to International Institutional
Law (2nd edn, 2009); Sands & Klein, Bowett’s Law of International
Institutions (6th edn, 2009). Also: Morgenstern, Legal Problems of
International Organizations(1986); Colliard, Institutions des relations
internationales (9th edn, 1990); Kirgis, International Organizations in
Their Legal Setting (2nd edn, 1993); White, The Law of International
Organisations (1996); Dupuy (ed), A Handbook of International
Organizations (2nd edn, 1998); Schermers & Blokker, International
Institutional Law (4th edn, 2003); Amerasinghe, Principles of the
Institutional Law of International Organizations (2nd edn, 2005);
Sarooshi, International Organizations and Their Exercise of Sovereign
Powers (2005); Alvarez, International Organizations as LawMakers (2005); Diez de Velasco Vallejo, Las organizaciones
internacionales (15th edn, 2008); Akande, in Evans (ed), International
Law (3rd edn, 2010) 252.
2
There is no definitive list of international organizations: Amerasinghe
(2nd edn, 2005) 6. The Yearbook of International Organizations
2009/10 states that there were at that point 241 ‘conventional’
intergovernmental organizations: Figure 2.9. Also: Blokker, in Blokker &
Schermers (eds), Proliferation of International Organizations (2001) 1.
3
A/CN.4/L.778, 30 May 2011. Akande draws on this definition to derive
three primary attributes of an international organization: (1) the entity is
composed predominantly of states and other international organizations;
(2) the entity is established by an instrument recognized by international
law, whether a treaty or some other mechanism; and (3) the entity
possesses autonomous organs with a will separate from its members:
Akande (2010) 252, 254.
4
Bederman (1996) 36 Va JIL 275; Crawford, Selected Essays (2002)
19–22; Sands & Klein (6th edn, 2009) 474–6; Portmann, Legal
Personality in International Law (2010) ch 5.
5
The Covenant did however provide for the immunity of officials and
representatives of the League (Art 7(4)) and the inviolability of League
premises (Art 7(5)).
6
Communications du Conseil Fédéral Suisse concernant le Régime des
Immunités Diplomatique du Personnel de la Société des Nations et du
Bureau International du Travail, 18 September 1926, 7 OJLN (1926)
annex 911a, 1422. Further: Hill, Immunities and Privileges of International
Officials (1947) 14–23; Gautier (2000) 4 MPUNYB 331, 341–2.
7
Reparation for Injuries suffered in the Service of the United Nations,
ICJ Reports 1949 p 174.
8
SC Res 57 (1948).
9
Art 104 of the Charter relates solely to legal capacity of the
Organization in the municipal law of member states: Bridge (1969)
18 ICLQ 689; Seidl-Hohenveldern & Rudolph, in Simma (ed), 2 The
Charter of the United Nations (2nd edn, 2002) 1302.
10
ICJ Reports 1949 p 174, 178–9.
11
Ibid, 179.
12
Further: Amerasinghe (2nd edn, 2005) 79–91; Akande (2010) 252,
256–7.
13
E.g. Sands & Klein (6th edn, 2009) 479–80.
14
Amerasinghe (2nd edn, 2005) 79.
15
Tunkin argued that an international organization could only acquire
international personality by express constitutional provision: (1966) 119
Hague Recueil 1, 20–5.
16
E.g. Constitution of the United Nations Educational, Scientific and
Cultural Organization, 15 November 1945, 4 UNTS 275, Art XII;
Constitution of the World Health Organization, 22 July 1946, 14 UNTS
185, Art 66.
17
E.g. UNCLOS, 10 December 1982, 1833 UNTS 3, Art 176
(International Seabed Authority); Agreement Establishing the World
Trade Organization, 15 April 1994, 1867 UNTS 154, Art VIII.1; ICC
Statute, 17 July 1998, 2187 UNTS 3, Art 4(1).
18
The main counter-example was the initial non-recognition of the EEC
by the USSR: Schermers & Blokker (4th edn, 2003) 1133, 1174–6, 1182–
3. It was not a success and did not inspire imitation.
19
Amerasinghe (2nd edn, 2005) 79. Also: Higgins, Problems and
Process (1994) 47–8. The theory was first developed by
Seyersted, Objective International Personality of Intergovernmental
Organizations (1963); Seyersted (1964) 4 Indian JIL 53.
20
ICJ Reports 1949 p 174, 178–9.
21
Cf Amerasinghe (2nd edn, 2005) 82–3.
22
Further: Jenks (1945) 22 BY 267; Ginther, Die völkerrechtliche
Verantwortlichkeit internationaler Organisationen gegenüber
Drittstaaten (1969); Dupuy (1960) 100 Hague Recueil 461, 467–88;
Weissberg, The International Status of the United
Nations (1961); Amerasinghe (1995) 47 Austrian JPIL 123.
23
On the Commonwealth of Nations: Fawcett, British Commonwealth in
International Law (1963); Dale (1982) 31 ICLQ 451.
24
Cf the conflicting decisions of Italian courts on the status of the North
Atlantic Treaty Organization (NATO): Branno v Ministry of War (1954) 22
ILR 756; Mazzanti v HAFSE (1954) 22 ILR 758.
25
E.g. the International Joint Commission (US–Canada): Boundary
Waters Treaty, 11 January 1909, USTS 548; MacKay (1928) 22 AJIL 292;
Spencer, The International Joint Commission Seventy Years On (1981);
Reardon, in Susskind et al (eds), International Environmental Treaty
Making (1992) 125; International Joint Commission, Annual Report for
2008: Boundary Waters Treaty Centennial Edition (2008) available
at www.ijc.org/php/publications/pdf/ID1629.pdf.
26
In Pulp Mills on the River Uruguay, the ICJ affirmed that a river
commission established by Argentina and Uruguay had ‘a permanent
existence of its own’ and was an ‘international organization with legal
personality’: ICJ Reports 2010 p 14, 52–3 (§§86–9).
27
28
Morgenstern (1986) 23–6.
Treaty on European Union, 7 February 1992, OJEU C 191/1, Arts 4, 5.
The EU is thus a classic example of the competences d’attribution, as
spoken of by the Permanent Court in Jurisdiction of the European
Commission of the Danube (1927) PCIJ Ser B No 14, 64.
Also: Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No
10. Further: Amerasinghe (2nd edn, 2005) 77–8.
29
29
E.g. the World Tourism Organization; it is unusual in having three tiers
of membership: (a) full members (states); (b) associate members
(dependencies of states); and (c) affiliate members (companies and
NGOs): Gilmour (1971) 18 NILR 275. Cf Zoernsch v Waldock [1964] 1
WLR 675 (on the constitution of an organ of an organization).
30
Gutteridge, The United Nations in a Changing World (1969) 75–85.
UNIDO’s legal status as a specialized agency has been the subject of an
express treaty: Constitution of the United Nations Industrial Development
Organization, 8 April 1979, 1401 UNTS 3, Art 21(1).
31
Akande, in Evans (3rd edn, 2010) 252, 254.
32
ILC Report 2011, A/66/10, 76.
33
ICJ Reports 1949 p 174, 185.
34
Secretariat Study, ILC Ybk 1967/II, 154–324; El-Erian,
ILC Ybk 1967/II, 133–53; ILC Ybk 1968/II, 119–62; ILC Ybk 1969/II, 1–
21; ILC Ybk 1970/II, 1–24; ILC Ybk 1971/II(1), 1–142; Privileges and
Immunities of International Organizations, Res (69) 29 of the Committee
of Ministers, Council of Europe (1970). Also: Lalive (1953) 84
Hague Recueil 205, 291–385; Jenks, International
Immunities (1961); Schröer (1971) 75 RGDIP 712;
Michaels, International Privileges and Immunities (1971); Dominicé
(1984) 187 Hague Recueil 145; Glenn, Kearney & Padilla (1981–82)
22 Va JIL 247; Duffar, Contribution à l’étude des priviléges et immunités
des organisations internationales (1982); Singer (1995–96) 36 Va
JIL 53; Gaillard & Pingel-Lenuzza (2002) 51 ICLQ 1; Amerasinghe (2nd
edn, 2005) ch 10; Robert, Mélanges Salmon (2007)1433; Miller (2007)
4 Int Org 169; Sands & Klein (6th edn, 2009) 489–516; Möldner,
‘International Organization or Institutions, Privileges or Immunities’
(2011) MPEPIL.
35
Sands & Klein (6 th edn, 2009) 490.
36
VCDR, 18 April 1961, 500 UNTS 95, Arts 8(2), 38(1).
37
Sands & Klein (6th edn, 2009) 490–3; Ryngaert (2010) 7 Int Org
LR 121.
38
38
Other constituent instruments may establish privileges and immunities
in detail: e.g. Articles of Agreement of the International Bank for
Reconstruction and Development, 22 July 1944, 2 UNTS 134, Art VII
(IBRD Articles); Convention on the Settlement of Investment Disputes
between States and Nationals of Other States, 18 March 1965, 575
UNTS 159, Arts 18–24 (ICSID Convention).
39
Further: Statute of the International Atomic Energy Agency, 26
October 1956, 276 UNTS 4, Art XV; Constitution of the International
Labour Organization, 1 April 1919, 15 UNTS 40, Art 40; Agreement
Establishing the World Trade Organization, 15 April 1994, 1867 UNTS
154, Art VIII.
40
13 February 1946, 1 UNTS 15 (General Convention).
41
21 November 1947, 33 UNTS 261. Also: General Agreement on
Privileges and Immunities of the Council of Europe, 2 September 1949,
1337 UNTS 420 (Council of Europe Immunities Agreement); Agreement
on Privileges and Immunities of the Organization of American States, 15
May 1949, 1438 UNTS 83; Agreement on the Privileges and Immunities
of the International Criminal Court, 9 September 2002, 2271 UNTS 3
(ICC Immunities Agreement).
42
26 June 1947, 11 UNTS 11 (UN Headquarters Agreement). Also:
Interim Agreement on Privileges and Immunities of the United Nations
concluded between the Secretary-General of the United Nations and the
Swiss Federal Council, 11 June 1946, 1 UNTS 164 (UN Immunities
Agreement); Headquarters Agreement between the International Criminal
Court and the Host State, 7 June 2007, ICC-BD/04-01-08; Sands & Klein
(6th edn, 2009) 491.
43
E.g. International Organizations 1968 (UK); International
Organizations Immunity Act 1945, 59 Stat 669 (US); International
Organizations (Privileges and Immunities) Act 1963 (Cth) (Australia).
44
Higgins (1994) 90–4; Amerasinghe (2nd edn, 2005) 344–8; Sands &
Klein (6th edn, 2009) 492–3; Ryngaert (2010) 7 Int Org LR 121, 123–32.
45
Generally: Iran–US Claims Tribunal v AS (1985) 94 ILR 321; Eckhardt
v Eurocontrol (No 2) (1984) 94 ILR 331.
46
46
All examples given by the Reporter are of universal organizations:
1 Restatement Third §467(i). For the view that immunity will not be
extended to limited membership organizations to which the US does not
belong: International Tin Council v Amalgamet Inc, 524 NYS.2d 971
(Supp, 1988).
47
ZM v Permanent Delegation of the League of Arab States to the
United Nations (1993) 116 ILR 643.
48
Sands & Klein (6th edn, 2009) 493.
49
Higgins (1994) 91; Reinisch, International Organizations before
National Courts (2000) 145–57; Amerasinghe (2nd edn, 2005) 347–8.
50
Standard Chartered Bank v International Tin Council [1987] 1 WLR
641, 648.
51
Amerasinghe (2nd edn, 2005) 347–8.
52
Higgins (1994) 91.
53
This may also extend to situations in which non-member states have
consented to host state operations within their territory: Akande, in Evans
(3rd edn, 2010) 252, 272–3.
54
Applicability of Article VI, Section 22 of the Convention on the
Privileges and Immunities of the United Nations, ICJ Reports 1989 p 177,
192–6.
55
E.g. Sands & Klein (6th edn, 2009) 493.
56
Bank Bumiputra Bhd v International Tin Council (1987) 80 ILR 24.
Also: International Tin Council v Amalgamet Inc, 524 NYS.2d 971 (Supp,
1988) (international organization entered into an arbitration clause; held
to have impliedly waived immunity).
57
ZM v Permanent Delegation of the League of Arab States to the
United Nations (1993) 116 ILR 643.
58
Higgins (1994) 92; Amerasinghe (2nd edn, 2005) 324–8.
Also: International Institute of Agriculture v Profili (1930) 5 ILR
413; Weidner v International Telecommunications Satellite Organization,
382 A.2d 508 (DC, 1978).
59
60
Sands & Klein (6th edn, 2009) 493; cf Reinisch (2000) 146.
60
Alternatively, they may be incorporated by reference: e.g. WTO
Agreement, Art VIII.4.
61
E.g. Clarsfield v Office Franco-Allemand pour la Jeunesse (1968) 72
ILR 191; International Patents Institute Employee (1969) 70 ILR 418; M v
United Nations and Belgium (1969) 69 ILR 139; Porru v Food and
Agriculture Organization (1969) 71 ILR 240; Re Pisani Balestra di
Mottola (1969) 71 ILR 565; International Atomic Energy Agency
Representative Immunity (1971) 70 ILR 413; Stahel v Bastid (1971) 75
ILR 76; European Space Operations Centre Official Immunity (1973) 73
ILR 683; Bari Institute v Jasbez (1977) 77 ILR 602; M v Cantonal Appeals
Commission of Berne (1977) 75 ILR 85; X v Department of Justice &
Police of Canton of Geneva (1977) 75 ILR 90; Weidner v International
Telecommunications Satellites Organization, 382 A.2d 508 (DC,
1978); Broadbent v Organization of American States, 628 F.2d 27 (DC
Cir, 1980); Tuck v Pan-American Health Organization, 668 F.2d 547 (DC
Cir, 1981); Food and Agriculture Organization v INDPAI (1982) 87 ILR
1; Cristiani v Italian Latin-American Institute (1985) 87 ILR 20; Girod de
l’Ain (1986) 82 ILR 85; African Reinsurance Corporation v Abate
Fantaye (1986) 86 ILR 655; Mininni v Bari Institute (1986) 87 ILR
28; Sindicato UIL v Bari Institute (1986) 87 ILR 37; Economic Community
of West African States v BCCI (1993) 113 ILR 472; Sossetti v
Multinational Force and Observers (1994) 128 ILR 640; Scimet v African
Development Bank (1997) 128 ILR 582; League of Arab States v I (2001)
127 ILR 94; African Development Bank (2005) 138 ILR 498.
Further: Ryngaert (2010) 7 Int Org LR 121.
62
E.g. Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd (No
2) [1988] 1 All ER 116 (inviolability of official archives waived by
communication of documents by member states to third parties).
63
Sands & Klein (6th edn, 2009) 493ff.
64
Ibid, 499–500. On the distinction between immunity from jurisdiction
and execution: Ryngaert (2010) 7 Int Org LR 121, 144–6.
65
Further: Council of Europe Immunities Agreement, Art 3; ICSID
Convention, Art 20; ICC Immunities Agreement, Art 6. A constituent
instrument may also narrow the scope of the immunity: e.g. IBRD
Articles, Art VII(3). Also: Sands & Klein (6th edn, 2009) 495.
66
66
E.g. the practice of the Italian courts: Branno v Ministry of War (1954)
22 ILR 756; Indpai v Food and Agriculture Organization (1982) 87 ILR 5.
For the US approach: Oparil (1991) 24 Vand JTL 689.
67
Reinisch (1999) 93 AJIL 933; Reinisch (2008) 7 Chin JIL 285; Sands
& Klein (6th edn, 2009) 497–9.
68
(1999) 118 ILR 121.
69
[1999] ECtHR 28934/95.
70
4 November 1950, 213 UNTS 222.
71
(1999) 118 ILR 121, 136 (‘For the Court, a material factor in
determining whether granting ESA immunity from German jurisdiction is
permissible is whether the applicants had available to them a reasonable
alternative means to protect their rights under the Convention’).
72
Amerasinghe (2nd edn, 2005) 330–5; Sands & Klein (6th edn, 2009)
500–2. Also: e.g. Council of Europe Immunities Agreement, Arts 4–5;
ICSID Convention, Art 23(1); ICC Immunities Agreement, Arts 4, 7.
73
UN Office for the Coordination of Humanitarian Affairs, ‘Field Update
on Gaza from the Humanitarian Coordinator. 30 January–2 February
2009’, available
at www.ochaopt.org/documents/ocha_opt_gaza_humanitarian_situation_report_2009
74
Amerasinghe (2nd edn, 2005) 328–30; Sands & Klein (6th edn, 2009)
502–3.
75
Further: Council of Europe Immunities Agreement, Arts 6, 7; ICSID
Convention, Art 24; ICC Immunities Agreement, Arts 6, 8–10.
76
For the regime of trust funds held by organizations: Bantekas (2010)
81 BY 224.
77
Amerasinghe (2nd edn, 2005) 335–7; Sands & Klein (6th edn, 2009)
503.
78
Also: e.g. Council of Europe Immunity Agreement, Art 8; ICC
Immunity Agreement, Art 11.
79
Amerasinghe (2nd edn, 2005) 337–40; Sands & Klein (6th edn, 2009)
508–16.
80
80
Agreement between the United Nations and the Government of Sierra
Leone on the Establishment of a Special Court for Sierra Leone, 16
January 2002, appended to Report of the Secretary-General on the
Establishment of a Special Court for Sierra Leone, S/2000/915, 4
October 2000 (SCSL Agreement).
81
ICC Immunities Agreement, Art 18; SCSL Agreement, Art 14.
82
ICC Immunities Agreement, Art 19; SCSL Agreement, Art 15.
83
ICC Immunities Agreement; Art 20; SCSL Agreement, Art 15 (to the
extent that victims can be considered witnesses).
84
Sands & Klein (6th edn, 2009) 508.
85
Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the Commission of Human Rights, ICJ Reports 1999 p 62,
87.
86
E.g. Westchester County v Ranollo, 67 NYS.2d 31 (City Ct Ranollo,
1946) (State Department certificate required). Further: Preuss (1947)
41 AJIL 555. Cf Curran v City of New York, 77 NYS.2d 206 (Sup Ct,
1947). Some acts may never be considered official: e.g. espionage: US v
Coplon and Gubitchev, 88 F.Supp 915 (SDNY, 1950).
87
ICJ Statute, Art 19.
88
E.g. ICC Immunities Agreement, Art 15. Further: Zoernsch v
Waldock [1964] 2 All ER 256.
89
Sands & Klein (6th edn, 2009) 504–7.
90
Cf UN Headquarters Agreement, Art V, s15 granting full diplomatic
immunity to state representatives attending the UN in the US.
91
Further: Council of Europe Immunities Agreement, Arts 9–10
(representatives to the Committee of Ministers) 13–15 (representatives to
the Consultative Assembly); ICC Immunities Agreement, Arts 13–14
(representatives to the Assembly of States and ICC subsidiary organs).
92
E.g. ICC Immunities Agreement, Art 13(1)(b); General Convention ,
Art III, s11. Also: UN Immunities Agreement, Art IV, s9(a).
93
94
Amerasinghe (2nd edn, 2005) 338–9.
94
14 March 1975, A/CONF.67/16.
95
Fennessy (1976) 70 AJIL 62.
96
Dupuy (1960) 100 Hague Recueil 461, 489ff; Karunatilleke (1971)
75 RGDIP 12; Chiu, The Capacity of International Organizations to
Conclude Treaties (1966); Zemanek (ed), Agreements of International
Organizations and the Vienna Convention on the Law of Treaties (1971).
Also: Draft Articles on Treaties Concluded between States and
International Organizations or between International Organizations,
ILC Ybk 1982/II(2), 17 (Reuter, Special Rapporteur). Further:
Brölmann, The Institutional Veil in Public International Law (2007); Corten
& Klein (eds), Les Conventions de Vienne sur le Droit des Traités (2006)
183–93.
97
E.g. South West Africa (Ethiopia v South Africa;Liberia v South
Africa), Preliminary Objections, ICJ Reports 1962 p 319, 495–503
(Judges Fitzmaurice & Spender) (treaty-making capacity of League of
Nations). Cf the majority, which appears to have tacitly accepted the
capacity of the League to enter into treaties at 330–2.
98
Reparations for Injuries, ICJ Reports 1949 p 174, 178–9. Also:
Amerasinghe (2nd edn, 2005) 101–3; Sands & Klein (6th edn, 2009) 483.
99
100
(1986) 25 ILM 543. Further: Gaja (1987) 58 BY 253.
22 May 1969, 1155 UNTS 331.
101
E.g. Art 63 of the Charter, conferring power to conclude relationship
agreements with specialized agencies on ECOSOC.
102
E.g. Opinion 2/94, Accession by the Community to the European
Convention for the Protection of Human Rights and Fundamental
Freedoms [1996] ECR I-1759.
103
Sands & Klein (6th edn, 2009) 486.
104
Art 46(2) of the 1986 Convention.
105
But on mixed agreements of the EU: Hillion & Kautrakos (eds), Mixed
Agreements Revisited (2010).
106
Amerasinghe (2nd edn, 2005) 102; Sands & Klein (6th edn, 2009)
483. Some early commentators were of the opinion that such powers
needed to be conferred expressly: e.g. Kelsen, Law of the United
Nations (1950) 330; Lukashuk (1960) Soviet YIL 144.
107
Sands & Klein (6th edn, 2009) 484.
108
ICJ Reports 1949 p 174, 184–5, 187.
109
Ibid, 180. Cf Schermers & Blokkers (4th edn, 2004) 1183–4.
110
Sørensen (1960) 101 Hague Recueil 1, 139, relates the capacity
directly to legal personality.
111
ICJ Reports 1949 p 174, 181–4. Further: El-Erian, ILC Ybk 1963/II,
159, 181–3; Hardy (1961) 37 BY 516; Hardy, ILC Ybk 1967/II, 218–19;
Carabot & Ubeda-Saillard, in Crawford, Pellet & Olleson (eds), The Law
of International Responsibility (2010) 1073.
112
ICJ Reports 1949 p 174, 189 (Judge Winiarski, diss), 196 (Judge
Hackworth, diss), 205 (Judge Badawi, diss), 217 (Judge Krylov, diss).
113
E.g. Pescatore (1961) 103 Hague Recueil 1, 219–21.
114
Carabot & Ubeda-Saillard (2010) 1073, 1083.
115
E.g. the Alicja Wesolowska case, where a Polish national in the
employ of the UN was arrested and imprisoned by Polish authorities in
1979. The UN’s claim and attempts to obtain a right of visit failed: ibid,
1082–3. Further: Meron (1980) 167 Hague Recueil 285, 336.
116
ICJ Reports 1949 p 174, 186.
117
Ibid, 185–6; Bowett, United Nations Forces (1964) 151, 242–8;
Carabot & Ubeda-Saillard (2010) 1073, 1081–2.
118
Schermers & Blokker (4th edn, 2003) 1185.
119
Though Art 34(3) of the Statute obliges the Court to update
international organizations on cases concerning their constituent
instruments. Also: Jenks, The Prospects of International
Adjudication (1964) 185–224; Schermers & Blokker (4th edn, 2003)
1185–6.
120
E.g. UNESCO-France, Question of the tax regime governing
pensions paid to retired UNESCO officials residing in France (2003) 25
RIAA 231.
121
121
Akande, in Evans (3rd edn, 2010) 252, 259–60.
122
Reinisch (2000) 44–5.
123
Eagleton (1950) 76 Hague Recueil 318; Ginther, Die völkerrechtliche
Verantwortlichkeit internationaler Organisationen gegenüber
Drittstaaten (1969) 1336–40; Hirsch, The Responsibility of International
Organizations toward Third Parties (1995); Klein, La Responsabilité des
organisations internationales dans les ordres juridiques internes et en
droit des gens (1998); Sands & Klein (6th edn, 2009) 516–30; Klein, in
Crawford, Pellet & Olleson (2010) 297. Cf further the Report of Higgins
(1995) 66 Ann de l’Inst 249; and the Resolution adopted in 1995 (1995)
66 Ann de l’Inst 445; ILA, Report of the 71st Conference (2004) 164–241.
124
Schermers & Blokkers (4th edn, 2004) 1184–5.
125
E.g. Convention on International Liability for Damage Caused by
Space Objects, 29 March 1972, 961 UNTS 187, Art XXII(3).
126
International Tin Council Appeals [1988] 3 All ER 257.
127
Ibid, 307. Ralph Gibson LJ, expressed a similar view: ibid, 341–56.
But Nourse LJ proposed a residual liability of the member states for debts
not discharged by the ITC itself: ibid, 326–34.
128
[1989] 3 WLR 969, 983–4 (Lord Templeman); 1010–12 (Lord Oliver).
Also: Marston (1991) 40 ICLQ 403; Higgins, 2 Themes and
Theories (2009) 920; Akande, in Evans (3rd edn, 2010) 252, 268–9.
129
Waite and Kennedy v Germany (1999) 118 ILR 121, 135. Also: Draft
Article 61 of the Draft Articles on the Responsibility of International
Organizations. Further: Brownlie, in Ragazzi (ed), Essays in Memory of
Oscar Schachter (2005) 355; Yee, ibid, 435.
130
For the UN’s comments on the draft articles: A/CN.4/637/Add, 17
February 2011, 30.
131
UN Ybk 1965, 138; ILC Ybk 1967/II, 216–20.
132
29 March 1972, 961 UNTS 187.
133
Hexner (1959) 53 AJIL 341; Lauterpacht, Development (1958) 267–
81; Amerasinghe (1994) 65 BY 175; Schermers & Blokker (4th edn,
2003) 153–83; Alvarez (2005) 65–108; Amerasinghe (2nd edn, 2005) ch
2; Smith & Klein (6th edn, 2009) 448–61; Alvarez (2005) ch 2; Blokker,
‘International Organizations or Institutions, Implied Powers’
(2009) MPEPIL.
134
Legality of the Use by a State of Nuclear Weapons in Armed Conflict,
ICJ Reports 1996 p 66, 78. Also: Competence of the ILO to Regulate
Incidentally the Personal Work of the Employer (1926) PCIJ Ser B No 13,
18; European Commission of the Danube (1927) PCIJ Ser B No 14,
64; Reparation for Injuries, ICJ Reports 1949 p 174, 182–3; Effect of
Awards of Compensation Made by the United Nations Administrative
Tribunal, ICJ Reports 1954 p 47, 57.
135
For a useful summary of a wide range of organizations and their
approach to interpretation: Sands & Klein (6th edn, 2009) 451–4.
136
Sands & Klein (6th edn, 2009) 451. Further: Sohn, in Schachter &
Joyner (eds), United Nations Legal Order (1995) 169.
137
Certain Expenses of the United Nations (Article 17, paragraph 2, of
the Charter), ICJ Reports 1962 p 151, 168 (‘when the Organization takes
action which warrants the assertion that it was appropriate for the
fulfilment of one of the stated purposes of the United Nations, the
presumption is that such action is not ultra vires the Organization’).
138
Though sometimes after considering a legal opinion provided by the
Office of the Legal Counsel: Amerasinghe (2nd edn, 2005) 26.
139
UN Charter, Art 96(1) (General Assembly, Security Council), (2)
(other authorized organs and specialized agencies). On the advisory
jurisdiction: chapter 32.
140
A specialized agency can only request advisory opinions if (a) it is so
provided in its constitution, or (b) it is the subject of separate agreement
with the UN: e.g. WHO Constitution, Art 76; Convention on the
International Maritime Organization, 6 March 1948, 289 UNTS 3, Art 66.
Further: (c) a specialized agency ‘is not empowered to seek an
interpretation of its Constitution in relation to matters outside the scope of
its functions’: Nuclear Weapons in Armed Conflict, ICJ Reports 1996 p
66, 82. Cf Akande (1998) 9 EJIL 437, 452–7 (arguing that an agency is
always entitled to seek an interpretation of its constituent instrument). In
fact of 26 requests for an advisory opinion since 1945, only five were
made by specialized agencies: Judgments of the Administrative Tribunal
ofthe ILOupon Complaintsmadeagainst UNESCO, ICJ Reports 1956 p 77
(UNESCO); Constitution of the Maritime Safety Committee of the InterGovernmental Maritime Consultative Organization, ICJ Reports 1960 p
150 (IMO); Interpretation of the Agreement of 25March 1951between the
WHO and Egypt, ICJ Reports 1980 p 73 (WHO); Nuclear Weapons in
Armed Conflict, ICJ Reports 66 (WHO); Judgment No 2867 of the
Administrative Tribunal of the International Labour Organization upon a
Complaint Filed against the International Fund for Agricultural
Development (IFAD), Advisory Opinion of 1 February 2012.
141
E.g. General Convention, Art VIII, s30.
142
ICJ Reports 1962 p 151, 168; 204, 208 (Judge Fitzmaurice); 223
(Judge Morelli); 298 (Judge Bustamante, diss).
143
Gross (1963) 16 Int Org 1; Simmonds (1964) 13 ICLQ 854; Verzijl
(1963) 10 NILR 1.
144
The US invoked Art 19 of the Charter in consequence of the Opinion
and for a whole session no voting took place in the General Assembly:
(1965) 4 ILM 1000.
145
Notably the international financial organizations may refer such
questions to the Executive Board, Board of Directors, Board of
Governors, etc: e.g. IBRD Articles, Art IX(a); Articles of Agreement of the
International Monetary Fund, 22 July 1944, 2 UNTS 35, Art XXIX(a) (IMF
Articles); Agreement Establishing the Asian Development Bank, 4
December 1965, 571 UNTS 123, Art 59.
146
E.g. Constitution of the Universal Postal Union, 10 July 1964, 611
UNTS 7, Art 32. The UPU has not been authorized by the GA to seek an
interpretation of its constitution: Sands & Klein (6th edn, 2009) 453.
147
E.g. Westland Helicopters v Arab Organization for Industrialization &
Others (1989) 80 ILR 595.
148
Prosecutor v Tadić (Jurisdiction) (1995) 105 ILR 419 (Appeals
Chamber).
149
Schermers & Blokker (4th edn, 2003) 840–6; Amerasinghe (2nd edn,
2005) 33–61; Sands & Klein (6th edn, 2009) 454–6; Akande, in Evans
(3rd edn, 2010) 252, 262–4.
150
Nuclear Weapons in Armed Conflict, ICJ Reports 1996 p 66, 74–5
(emphasis added). Also: Certain Expenses, ICJ Reports 1962 p 151,
157.
151
ICJ Reports 1949 p 174, 180.
152
Akande, in Evans (3rd edn, 2010) 252, 263.
153
Effect of Awards, ICJ Reports 1954 p 47, 56–7. Also: E Lauterpacht
(1976) 52 Hague Recueil 377, 420.
154
ICJ Reports 1996 p 66, 75.
155
Schermers & Blokker (4th edn, 2003) 842.
156
Ibid, 841.
157
Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276(1970), ICJ Reports 1971 p 16, 22.
158
ICJ Reports 1949 p 174, 182. A substantial contribution has also
been made by the European Court of Justice: Blokker, ‘International
Organizations or Institutions, Implied Powers’ (2009) MPEPIL, §C. E.g.
Opinion 1/76, Draft Agreement Establishing a European Laying-up Fund
for Inland Waterway Vessels [1977] ECR 741; Opinion 2/91, Convention
No 170 of the International Labour Organization concerning Safety in the
Use of Chemicals at Work [1993] ECR I-1061; Opinion
1/94, Competence of the Community to Conclude International
Agreements concerning Services and the Protection of Intellectual
Property—Article 228(6) of the EC Treaty [1994] ECR I-5267.
Further: Dashwood (1996) 21 ELR 113.
159
ICJ Reports 1993 p 66, 79. For comment: E Lauterpacht, in Boisson
de Chazournes & Sands (eds), International Law, the International Court
of Justice and Nuclear Weapons (1999) 92; Bothe, ibid, 103; Leary, ibid,
112.
160
Blokker, ‘International Organizations or Institutions, Implied Powers’
(2009) MPEPIL, §D.
161
161
E.g., GA Res 377(V), 3 November 1950. Further: Binder, ‘Uniting for
Peace Resolution (1950)’ (2006) MPEPIL.
162
E.g. ITU, WHO, IMCO, UNESCO, and FAO.
163
Covenant, Art 4(6), 5(1), but cf Arts 5(2) (matters of procedure),
15(6), (7) (parties to a dispute unable to prevent adoption of a Council
report on the dispute). Also: Voting Procedure on Questions Relating to
Reports and Petitions Concerning the Territory of South West Africa, ICJ
Reports 1955 p 67, 98–103 (Judge Lauterpacht).
164
Under the Dispute Settlement Body of the WTO (DSU Arts 6.1, 16.4,
17.14, and 22.6) a rule of ‘reverse consensus’ has been adopted; all
WTO Members must agree that a decision of a panel or the Appellate
Body not be adopted in order to prevent implementation: Matsushita,
Schoenbaum & Mavroidis, The World Trade Organization (2nd edn,
2008) 107. Further: chapter 32.
165
Sands & Klein (6th edn, 2009) 268–81.
166
Schermers & Blokker (4th edn, 2003) 1202–3; Klabbers (2nd edn,
2009) 174–6.
167
Tzanakopoulos, Disobeying the Security Council (2010).
168
Cf also its progenitor, Art 15(8) of the League Covenant. Further:
Charter of the OAS, 30 April 1948, 119 UNTS 3, Art 1; cf Caminos
& Lavalle (1989) 83 AJIL 395.
169
Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4,
24.
170
Nolte, in 1 Simma (2nd edn, 2002) 148, 157. Further: McGoldrick, in
Lowe & Warbrick (eds), The United Nations and Principles of
International Law (1994) 85, 86ff; Conforti, Law and Practice of the
United Nations (3rd edn, 2005) 132–3.
171
Schermers & Blokker (4th edn, 2003) 159. Also: Nolte, in 1 Simma
(2nd edn, 2002) 148, 159; cf Alvarez (2005) 156–83, on the shrinking
concept of domestic jurisdiction. Also: chapter 20.
172
Generally: Hawkins, Lake, Neilson & Tierney (eds), Delegation and
Agency in International Organizations (2006).
173
173
On territorial administration by international organizations: Knoll, The
Legal Status of Territories Subject to Administration by International
Organizations (2008); Wilde, International Territorial
Administration (2008); Stahn, The Law and Practice of International
Territorial Administration (2008); chapter 9.
174
On the law applicable to the relations between international
organizations and private persons: Seyersted (1967) 122
Hague Recueil 427; Valticos (1977) Ann de l’Inst 1; Amerasinghe (2nd
edn, 2005) ch 13.
175
Sands & Klein (6th edn, 2009) 466.
176
E.g. Headquarters Agreement between the Organization of American
States and the United States, 14 March 1992, US Treaty Doc 102–40, Art
VIII(1).
177
Sands & Klein (6th edn, 2009) 470.
178
For the view that the provision does not bind non-members:
Bindschedler (1963) 108 Hague Recueil 307, 404–6. For the opposite
view: Kelsen (1950) 85–6, 106–10; Vitzthum, in 1 Simma (2nd edn, 2002)
146–7.
179
O’Connell (1963) 67 RGDIP 6, 26–9, 34; Skubiszewski (1972) 2 Pol
YIL 80; Schreuer (1978) 27 ICLQ 1; Reinisch (2000).
180
25 March 1957, OJEU C 83/47.
181
Arab Monetary Fund v Hashim (No 3) [1991] 2 AC 114, 161 (Lord
Templeman); Westland Helicopters Ltd v AOI [1995] 2 WLR 126, 140–1
(Colman J). Also: Marston (1991) 40 ICLQ 403.
182
Skubiszewski (1965–66) 41 BY 198; Virally (1956) AFDI 66; Johnson
(1955–56) 32 BY 97; Sørensen (1960) 101 Hague Recueil 5, 91–
108; Sloan (1987) 58 BY 39; Higgins, Development (1963);
Yemin, Legislative Powers in the United Nations and Specialized
Agencies (1969); Buergenthal, Law-Making in the International Civil
Aviation Organization (1969); Vignes, in Macdonald and Johnston
(eds), The Structure and Process of International Law (1983) 809–53;
Schwebel, The Legal Effect of Resolutions and Codes of Conduct of the
United Nations (1986); Alvarez (2005); Johnstone (2008) 40 G Wash
ILR 87; Klabbers (2009) 188–93.
183
Higgins (1963) 2. Further: Higgins (1994) 23.
184
GA Res 95(I), 11 December 1946.
185
Thus General Assembly resolutions are recommendations creating
prima facie no legal obligation. Cf however, Voting Procedure, ICJ
Reports 1955 p 57, 118–19, 122 (Judge Lauterpacht); and Digest of US
Practice (1975) 85. Generally: Amerasinghe (2nd edn, 2005) ch 6.
186
Higgins (1994) 25–8.
187
GA Res 1514(XV), 14 December 1960.
188
GA Res 2625(XXV), 24 October 1970.
189
Cf the declaration of principles governing activities in outer space:
GA Res 1962(XVII), 13 December 1963.
190
Nuclear Weapons, ICJ Reports 1999 p 225, 254–5. Also: South West
Africa, ICJ Reports 1966 p 248, 291 (Judge Tanaka, diss); North Sea
Continental Shelf (Federal Republic of Germany/Netherlands; Federal
Republic of Germany/Denmark), ICJ Reports 1969 p 3, 177 (Judge
Tanaka, diss).
191
Statute of the International Law Commission, 21 November 1947, GA
Res 174(II), 21 November 1947 (ILC Statute). Generally: United
Nations, The International Law Commission 50 Years After (2000);
Morton, The International Law Commission of the United
Nations (2000); United Nations, The Work of the International Law
Commission (6th edn, 2004); Watts, Pronto & Wood, 1–4 The
International Law Commission, 1949–1998 and 1999–2009 (1999, 2010).
192
Further: UN Charter, Art 13(1)(a); Fleischhauer, in 1 Simma (2nd
edn, 2002) 298; Rao, ‘International Law Commission (ILC)’
(2006) MPEPIL; Watts, ‘Codification and Progressive Development of
International Law’ (2006) MPEPIL. Other UN expert bodies include
UNCTAD, the United Nations Commission on International Trade Law
(UNCITRAL), and the International Institute for the Unification of Private
Law (UNIDROIT).
193
193
Generally: Lauterpacht, Development (1958); McMahon (1961)
37 BY (1961) 320; Lowe & Fitzmaurice (eds), Jennings Essays (1996);
Amerasinghe (2nd edn, 2005) ch 8.
194
Cf Sørensen (1960) 101 Hague Recueil 1, 100–1, 105–6. For views
on the reliability of subsequent practice of organs in interpretation of the
Charter: Certain Expenses, ICJ Reports 1962 p 151, 187 (Judge
Spender), 210 (Judge Fitzmaurice).
195
ICJ Reports 1971 p 16, 22.
196
Nuclear Weapons in Armed Conflict, ICJ Reports 1996 p 66, 75.
197
Accordance with International Law of the Unilateral Declaration of
Independence in respect of Kosovo, Opinion of 22 July 2010, §108.
198
Generally: Johnstone (2008) 40 G Wash ILR 87.
199
Schermers & Blokker (4th edn, 2003) ch 8; Amerasinghe (2nd edn,
2005) ch 9; Sands & Klein (6th edn, 2009) ch 14.
200
Generally: Amerasinghe, The Law of the International Civil
Service (1988); Effect of Awards, ICJ Reports 1954 p 47.
201
GA Res 61/261, 4 April 2007; Reinisch (2008) 12 MPUNYB 447.
202
Amerasinghe (2nd edn, 2005) ch 9; Riddell, ‘Administrative Boards,
Commissions and Tribunals in International Organizations’
(2006) MPEPIL.
203
Generally: Klein, La Responsabilité des Organisations
internationales (1998); Wellens, Remedies against International
Organisations (2002).
204
Generally: Bindschedler (1963) 108 Hague Recueil 307, 312–418.
205
UN Charter, Arts 2, 24(2), 55.
206
ICJ Reports 1971 p 16, 45.
207
On the prospects of current non-judicial accountability
mechanisms: de Wet (2008) 9 GLJ 1987. On the World Bank Inspection
Panel: Shihata, The World Bank Inspection Panel (2nd edn,
2000); Gualtieri (2002) 72 BY 213; Orakhelashvili (2005) 2 Int Org LR 57.
208
209
De Wet (2008) 2010.
209
GA Res 998(ES-1), 4 November 1956; GA Res 1000(ES-1), 5
November 1956.
210
SC Res 143 (1960).
211
SC Res 1373 (2001); SC Res 1540 (2004). Further: Talmon (2005)
99 AJIL 175; Bianchi (2007) 17 EJIL 881; Hinojosa-Martinez (2009)
57 ICLQ 333.
212
Generally: Akande (1997) 46 ICLQ 309; Alvarez (1996) 90 AJIL 1; de
Wet (2000) 47 NILR 181.
213
ICJ Reports 1962 p 151, 222.
214
Ibid, 203–4 (Judge Fitzmaurice), 232 (Judge Winiarski, diss), 304–5
(Judge Bustamante, diss).
215
Ibid, 237 (Judge Basdevant).
216
Generally: E Lauterpacht, in Cambridge Essays in International
Law (1965) 88; Cahier (1972) 76 RGDIP 645, 659; Osieke (1983)
77 AJIL 239; Furukawa, in Mélanges Reuter (1981) 293; Bernhardt, in
Makarczyk (ed), Essays in Honour of Krzysztof Skubiszewski (1996) 599;
Buchowska (2006–08) 28 Pol YIL 9.
217
E.g. Arnull, The European Union and its Court of Justice (2nd edn,
2006); Hilpold (2009) 13 MPUNYB 141; Reinisch (ed), Challenging Acts
of International Organizations before National Courts (2010).
218
TFEU, Art 218(11).
219
Joined Cases C-402/05P and C-415/05P, Kadi & Al Barakaat
International Foundation v Council & Commission [2008] ECR I-06351.
Further: the Opinion of Advocate-General Poiares Maduro and at first
instance Case T-315/01, Kadi v Council and Commission [2005] ECR II3649; Case T-306/01, Yusef & Al Barakaat International Foundation v
Council and Commission [2005] ECR II-3533. Also: Tzanou (2009)
10 GLJ 123; Hilpold, in Reinisch (2010) 18.
220
SC Res 1390 (2002); SC Res 1344 (1003); SC Res 1526 (2004); SC
Res 1617 (2005); SC Res 1735 (2006); SC Res 1822 (2008).
221
The Al Qaeda/Taliban Sanctions Committee: SC Res 1267 (1999).
222
Cf SC Res 1822 (2008). Further: Almqvist (2008) 57 ICLQ 303.
223
223
[2005] ECtHR 45036/98.
224
[2008] ECR I-6351, §298. More controversially, the Court also built a
second line of defence based on the principle that UN law cannot prevail
over EC primary law, of which fundamental rights form a part: at §§304–
8. Art 103 of the Charter is conspicuous by its absence from the Court’s
reasoning: Hipold, in Reinisch (2010) 18, 34–5.
225
226
[2008] ECR I-6351, §§334, 348ff.
Hipold, in Reinisch (2010) 11, 34. For subsequent proceedings
see Commission v Kadi (No 2), pending before ECJ (GC).
Part III Territorial Sovereignty
p. 203) 8 Forms of Governmental Authority over
Territory
1. The Concept of Territory
In spatial terms the law knows four types of regime: territorial sovereignty,
territory not subject to the sovereignty of any state or states and which
possesses a status of its own (e.g. trust territories), res nullius, and res
communis. Territorial sovereignty extends principally over land territory
and the territorial sea, its seabed and subsoil. The concept of territory
includes islands, islets, rocks, and (in certain circumstances)
reefs.1 Exceptionally an area of territory may be under the sovereignty of
several states (a condominium), though in practice these have always
been states with other territory subject to their exclusive
sovereignty.2 A res nullius consists of an area legally susceptible to
acquisition by states but not as yet placed under territorial sovereignty.
The res communis, consisting of the high seas (which for present
purposes include exclusive economic zones) and also outer space, is not
capable of being placed under sovereignty. In accordance with customary
international law and the dictates of convenience, the airspace above and
subsoil beneath state territory, the res nullius, and the res communis are
included in each category.
References
(p. 204) 2. Key Terms and Distinctions
(A) Sovereignty and Jurisdiction
State territory and its appurtenances (airspace and territorial sea),
together with the government and population within its boundaries,
constitute the physical and social base for the state. The legal
competence of states and the rules for their protection depend on and
assume the existence of this stable, physically identified (and normally
legally delimited) base.
The competence of states in respect of their territory is usually described
in terms of sovereignty and jurisdiction, but the terminology is not
employed very consistently even in legal sources. At the same time,
some uniformity of usage may be noted. The normal complement of state
rights, the typical case of legal competence, is described commonly as
‘sovereignty’: particular rights, or accumulations of rights quantitatively
less than the norm are referred to as ‘jurisdiction’. In brief, ‘sovereignty’ is
shorthand for legal personality of a certain kind, that of statehood;
‘jurisdiction’ refers to particular aspects of the substance, especially rights
(or claims), liberties, and powers. Of particular significance is the criterion
of consent. State A may have considerable forces stationed within the
boundaries of state B. State A may also have exclusive use of a certain
area of state B, and exclusive jurisdiction over its own forces. If, however,
these rights exist with the consent of the host state then state A has no
claim to sovereignty over any part of state B.3 In such case there has
been a derogation from the sovereignty of state B, but state A does not
gain sovereignty as a consequence. It would be otherwise if state A had
been able to claim that exclusive use of an area hitherto part of state B
belonged to state A as sovereign, as of right and independently of the
consent of any state.
(B) Sovereignty and Ownership
The analogy between sovereignty over territory and ownership of real
property appears more useful than it really is. For the moment it is
sufficient to establish certain distinctions. The legal competence of a
state includes considerable liberties in respect of internal organization
and the disposal of territory. This general power of government,
administration, and disposition is imperium, a capacity recognized and
delineated by international law. Imperium is distinct from dominium in the
form of public ownership of property within the state;4 a fortiori in the form
of private ownership recognized as such by the law.5
(p. 205) (C) Sovereignty and Administration
It may happen that the process of government over an area, with the
concomitant privileges and duties, falls into the hands of another state.
Thus after the defeat of Nazi Germany in the Second World War the four
major Allied Powers assumed supreme power in Germany.6 The German
state did not, however, disappear. What occurred is akin to legal
representation or agency of necessity. Indeed, the legal basis of the
occupation depended on its continued existence. The very considerable
derogation of sovereignty involved in the assumption of powers of
government by foreign states, without the consent of Germany, did not
constitute a transfer of sovereignty. A similar case, long recognized in
customary law, is the belligerent occupation of enemy territory in time of
war.7 The important features of ‘sovereignty’ in such cases are the
continued existence of a legal personality and the attribution of territory to
that legal person and not to holders of the territory for the time being.8
(D) ‘Sovereign Rights’ beyond State Territory
A further source of confusion is the fact that sovereignty is not only used
as a description of legal personality accompanied by independence but
also as a reference to various types of rights, indefeasible except by
special grant, in the patrimony of a state, for example the ‘sovereign
rights’ a coastal state has over the resources of the continental shelf,9 or
a prescriptive right of passage between the main territory and
References
(p. 206) an enclave. Rights which are ‘owned’ and in this special sense
‘sovereign’ involve a broader concept, not reducible
to territorial sovereignty.
3. Territorial Administration Separated From
State Sovereignty
While the concept of territorial sovereignty normally applies in relation to
states, there is now considerable experience with international
organizations not only administering territory in the capacity of agent but
also assuming legal responsibility for territory in respect of which no state
has title. Such a situation arose in 1966 when the General Assembly
terminated the Mandate of South West Africa. The legal relations of an
organization to the territory in such a case can only be classified as sui
generis because terms and concepts like ‘sovereignty’ and ‘title’ are
historically associated with the patrimony of states.10
(A) Terminable and Reversionary Rights
Territorial sovereignty may be defeasible in certain circumstances by
operation of law, for example by fulfilment of a condition subsequent or
the failure of a condition under which sovereignty was transferred where
there is an express or implied condition that title should revert to the
grantor. The first situation is exemplified by the status of Monaco before
2005; its independence was conditional, in that if there was a vacancy in
the Crown of Monaco it would have become a protectorate of
France.11 Until such a condition operates the tenant had an interest equal
in all respects to that of sovereignty.12
The second type of case was represented, on one view, by the system of
mandates created after the First World War. The mandatories, or
administering states for the various ex-German territories, were
nominated by the five principal Allied and Associated Powers, in whose
favour Germany had renounced sovereignty. On this basis, and because
they took the decision to place the territories under mandate, it was
suggested that ‘the Principal Powers retained a residual or reversionary
interest in the actual territories concerned except where these have
attained self-government or independence’.13 The precise incidents of
such a reversion would depend on the circumstances of each
References
(p. 207) case.14 But they did not amount to sovereignty; they took the
form of a power of disposition, or of intervention or veto in any process of
disposition.
(B) Residual Sovereignty
Occupation of foreign territory in time of peace may occur on the basis of
a treaty with the territorial sovereign. The grantee under the treaty may
receive very considerable powers of administration, amounting to a
delegation of the exercise of many of the powers of the territorial
sovereign to the possessor for a particular period. Thus, in Article 3 of the
Treaty of Peace of 8 September 1951, Japan agreed that, pending any
action to place the Ryukyu Islands under the trusteeship system of the
UN:
The United States will have the right to exercise all and any powers of administration,
legislation and jurisdiction over the territory and inhabitants of these islands, including
their territorial waters.15
US courts, in holding that inhabitants of the Ryukyus were not nationals
of the US and that the islands were a ‘foreign country’ in connection with
the application of various US statutes, referred to the ‘de
facto sovereignty’ of the US and to the Japanese interest in terms of
‘residual sovereignty’ or ‘de iure sovereignty’.16 Restoration of full
Japanese sovereignty was the subject of subsequent bilateral
agreements.17
This type of interest may have practical consequences. In Lighthouses in
Crete and Samos, the Permanent Court held that in 1913 Crete and
Samos were under the sovereignty of Turkey, which therefore had the
power to grant or renew concessions with regard to the islands. As
regards Crete the Court said:
Notwithstanding its autonomy, Crete has not ceased to be a part of the Ottoman Empire.
Even though the Sultan had been obliged to accept important restrictions on the exercise
of his rights of sovereignty in Crete, that sovereignty had not ceased to belong to him,
however it might be qualified from a juridical point of view.18
(C) International Leases
There are examples of concessions of territory, including full
governmental authority, for a period of years (the New Territories of Hong
Kong prior to 1997)19 or even in
References
(p. 208) perpetuity (Guantanamo Bay). In such cases the term ‘lease’
may be applied, but it is no more than a superficial guide to the interest
concerned: each case depends on its particular facts and especially on
the precise terms of the grant. Certainly there is a presumption that the
grantor retains residual sovereignty. Certain types of ‘lease’ were
however, virtual cessions of territory.20 The return of full control over
several leased territories (Hong Kong in 1997, Macao in 1999, the
Panama Canal Zone in 2000)21 may indicate a trend towards confirming
the lessor’s sovereignty.
The best-known extant international lease is that between Cuba and the
US with respect to Guantanamo Bay.22The initial lease was concluded in
1903,23 shortly aft er Cuba was declared independent. A second lease
was concluded in 1934.24 The revolutionary government in place since
1959 has consistently claimed both to be illegal.25 Although rarely
articulated in legal terms, the basis for the Cuban claim is that the leases
are voidable due to their inequitable character and the change in
circumstances since the end of the Cold War.26 Material in this context is
Article III of the 1903 Lease, which provides that:
While on the one hand the United States recognizes the continuance of the ultimate
sovereignty of the Republic of Cuba over the above described areas of land and water,
on the other hand the Republic of Cuba consents that during the period of occupation by
the United States of said areas under the terms of this agreement the United States shall
exercise complete jurisdiction and control over and within said areas with a right to
acquire…for the public purposes of the United States any land over or other property
therein by purchase or by exercise of eminent domain with full compensation to the
owners thereof.
References
(p. 209) The apparently perpetual character of the rights assigned by this
clause has given rise to much commentary, a key issue being whether
US constitutional rights protections extend to Guantanamo Bay.27
The difficulties concerning the nature of the grantor’s interest in this type
of case, new examples of which are unlikely to arise, are not present in
the amenity-providing ‘lease’ of railway station or a military, naval, or air
base.28 Here the rights conferred by a treaty, executive agreement or
other intergovernmental agreement are of a more limited kind:
consequently the grantor has a right to revoke the ‘contractual licence’
(according to its terms) and, after a reasonable time has elapsed,
proportionate steps (even, in the last resort, force) may be employed to
evict the trespasser.
(D) Demilitarized and Neutralized Territory
Restrictions on use of territory, accepted by treaty, do not affect territorial
sovereignty as a title, even when the restriction concerns matters of
national security and preparation for defence.29 The same applies where
demilitarized zones have been imposed by the Security Council30 or even
(in the context of provisional measures) by the International Court.31
(E) Vassalage, Suzerainty, and Protection
As noted, a condominium involves a sovereignty jointly exercised by two
(or more) states on a basis of equality. Historically, other types of shared
sovereignty have occurred in which the dominant partner, state A, has
acquired a significant role in the government of state B, and particularly in
the taking of executive decisions relating to the conduct of foreign affairs.
The legal aspects of the relationship will vary with the circumstances of
each case, and not too much can be deduced from the terminology of the
relevant instruments.32 It may be that the protected community or ‘state’
is a
References
(p. 210) part of state A and, as a colonial protectorate, has no
international legal personality, although for purposes of internal law it may
have a special status.33 The question of the status of colonial
protectorates is complex and can only be approached on a case by case
basis.34 The protected state may retain a measure of externally effective
legal personality, although the exercise of its legal capacities be
delegated to state A. In this latter case treaties by state A will not
necessarily apply to state B. However, for certain purposes, including the
law of neutrality and war, state B may be regarded as an agent of state A.
Thus if state A declares war the protected state may be treated as
belligerent also, although much will depend on the precise nature of the
35
relations between states A and B.35 These questions, though they can
still be important for the determination of the legal status of territory,
pertain closely to the question of the independence of states, considered
in chapter 5.
4. Restrictions on disposition of Territory
(A) Treaty Provisions
States may by treaty agree not to alienate certain parcels of territory in
any circumstances, or they may agree not to transfer to a particular state
or states.36 Moreover, a state may agree not to unite with another state:
by the State Treaty of 1955, Austria is obliged not to enter into political or
economic union with Germany.37Previously, in Article 88 of the Treaty of
St Germain of 1919, the obligation was expressed differently: the
independence of Austria was ‘inalienable otherwise than with the consent
of the Council of the League of Nations’.38 An obligation not to acquire
territory may also be undertaken. In case of a breach of a treaty
obligation not to alienate, or acquire, territory, the grantee may regard the
treaty as res inter alios acta, and it is doubtful if the existence of a claim
by a third state for breach of a treaty can result in the nullity of the
transfer.
References
(p. 211) (B) The Principle of Appurtenance
The territory of a state by legal implication includes a territorial sea and
the airspace above its land territory and territorial sea.39 Thus if state A
merges with state B, state B’s territory will include the territorial sea and
the airspace formerly of state A.40 This simple idea is sometimes
described as the principle of appurtenance,41 and high authority supports
the view that as a corollary the territorial sea cannot be alienated without
the coast itself (no doubt similarly in the case of airspace).42 But the
logical and legal basis for the corollary is not compelling. Another form of
appurtenance appears in the dissenting opinion of Judge McNair in
the Anglo-Norwegian Fisheries case. In his words: ‘[i]nterna-tional law
imposes upon a maritime State certain obligations and confers upon it
certain rights arising out of the sovereignty which it exercises over its
maritime territory. The possession of this territory is not optional, not
dependent upon the will of the State, but compulsory’.43 Attractive though
this view may seem at first sight, it raises many difficulties. How many of
the various territorial extensions are possessed by compulsion of law?
The desire to invest the coastal state with responsibility for the
maintenance of order and navigational facilities is not a sufficient basis
for McNair’s rule; indeed, this kind of logic would equally support a
doctrine of closed seas. States are permitted to abandon territory, leaving
it res nullius, whereas the presumptive consequence of disclaiming the
territorial sea is simply to extend a res communis, the high seas.
5. Conclusions
(A) The Concept of Title44
The content of sovereignty has been examined from various points of
view. By and large the term denotes the legal competence which a state
enjoys in respect of its territory.
References
(p. 212) This competence is a consequence of title and by no means
conterminous with it. Thus an important aspect of state competence, the
power of disposition, may be limited by treaty, but the restriction, provided
it is not total, leaves title unaffected. However, the materials of
international law employ the term sovereignty to describe both the
concept of title and the legal competence which flows from it. In the
former sense the term ‘sovereignty’ explains (a) why the competence
exists and what its fullest possible extent may be; and (b) whether claims
may be enforced in respect of interference with the territorial aspects of
that competence against a particular state.
The second aspect mentioned is the essence of title: the validity of claims
to territorial sovereignty against other states. The equivalent concept in
French, titre, has been defined as follows: ‘[t]erme qui, pris dans le sens
de titre juridique, désigne tout fait, acte ou situation qui est la cause et le
fondement d’un droit’.45 In principle the concept of ownership, opposable
to all other states and unititular,46 does exist. Thus the first and
undisputed occupation of land which is res nullius may give rise to title
which is equivalent to the dominium of Roman law. However, in practice
the concept of title employed to solve disputes approximates to the notion
of the better right to possess familiar in the common law.47 The operation
of the doctrines of acquiescence and recognition makes this type of
approach inevitable, but in any case tribunals will favour an approach
which reckons with the limitations inherent in a procedure dominated by
the presentation of evidence by two claimants, the result of which is not
automatically opposable to third states.48
(B) Title, Delimitation, Demarcation
In a broad sense many questions of title arise in the context of ‘boundary
disputes’, but as a matter of principle the determination of the location in
detail of the boundary line is distinct from the issue of title. Considerable
dispositions of territory may take place in which the grantee enjoys the
benefit of a title derived from the grant although no determination of the
precise boundary line is made.49 On the other hand precise
determination of the boundary may be made a suspensive condition in a
treaty of
References
(p. 213) cession. The process of determination is carried out in
accordance with a special body of rules. For example according to
the thalweg principle in the case of a navigable river, the middle of the
principal channel of navigation is accepted as the boundary. In the case
of non-navigable watercourses the boundary is constituted by the median
line between the two banks.50
The practical aspects of boundaries must be emphasized. Agreement as
to the precise details of a boundary is often followed by the separate
procedure of demarcation, that is, the marking, literally, of the boundary
on the ground by means of posts, stone pillars, and the like. A boundary
may be legally definitive and yet remain undemarcated. Boundaries
which are de facto, either because of the absence of demarcation or
because of the presence of an unsettled territorial dispute, may
nevertheless be accepted as the legal limit of sovereignty for some
purposes, for example those of civil or criminal jurisdiction, nationality
law, and the prohibition of unpermitted intrusion with or without the use of
arms.
(C) Nemo Dat Quod Non Habet51
This maxim, together with some exceptions, is a familiar feature of
English law, but the principle is undoubtedly part of international law also.
In Island of Palmas, Arbitrator Huber stated:
The title alleged by the United States of America as constituting the immediate
foundation of its claim is that of cession, brought about by the Treaty of Paris, which
cession transferred all rights of sovereignty which Spain may have possessed in the
region.…It is evident that Spain could not transfer more rights than she herself
possessed.52
The effect of the principle is much reduced by the operation of
acquiescence and recognition.
Certain connected principles require consideration. First, in principle the
adjudication by a tribunal of a piece of territory as between states A and
B is not opposable to state C. The tribunal, insofar as adjudication of
itself gives title, only has jurisdiction to decide as between the parties
before it.53 The fact that state C claims a particular parcel of territory
does not deprive the tribunal of power to adjudicate and does not prevent
states A and B from defining their rights in relation to the parcel
mutually.54 In
References
(p. 214) certain cases, the principle operates through particular rules
governing special problems. Thus an aggressor, having seized territory
by force may purport to transfer the territory to a third state. The validity
of the cession will depend on the effect of specific rules relating to the
use of force by states. Again, a state may transfer territory which it lacks
the capacity to transfer. In this type of situation much turns on the extent
to which defects of title may be cured by acquiescence, and recognition.
Under certain conditions it is possible that the law accepts the existence
of encumbrances passing with territory ceded. McNair refers to ‘treaties
creating purely local obligations’ and gives as examples territory over
which the ceding state has granted to another state a right of transit55 or
a right of navigation on a river,56 or a right of fishery in territorial or
internal waters.57 This is also the approach of the 1978 Vienna
Convention on the Succession of States in Respect of Treaties, Article 21
of which provides that a succession of states shall not affect obligations
or rights ‘relating to the use of territory’ which are ‘established by a treaty
for the benefit of any territory of a foreign state and considered as
attaching to the territories in question’.58
References
Footnotes:
1
For the dispute over the large Caribbean reef structure Quitasueño
Bank: Pratt (2001) IBRU Boundary and Security Bulletin 108.
Generally: Argentina/Chile (Beagle Channel) (1977) 21 RIAA 53,
189; Eritrea v Yemen(Territorial Sovereignty) (1998) 114 ILR 1, 138–
9; Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, ICJ Reports 2001 p 40, 200, and on the distinction between lowand high-tide elevations: chapter 11.
2
Generally: Bantz (1998) 12 Florida JIL 77; Barberis, in Kohen
(ed), Liber Amicorum Lucius Caflisch (2007) 673; Samuels (2008)
29 Mich JIL 732. The best-known example is the former condominium of
the New Hebrides (now Vanuatu): O’Connell (1968–69) 43 BY 71. The
legal regime may be used to deal with problems of neighbourhood
relating to boundary rivers and the like: Dutch-Prussian
Condominium (1816) 6 ILR 50; also: Brown, The Saudi Arabia Kuwait
Neutral Zone (1963). For the Anglo-Egyptian Sudan: Taha (2005)
76 BY 337. In certain cases, e.g. land-locked lakes and bays bounded by
two or more states, it has been argued that riparian states have
a condominium by the operation of law. This is doubtful, but it is possible
for such a regime to arise by usage. In relation to the Gulf of Fonseca the
Chamber held that its waters, other than the three-mile maritime belts,
‘are historic waters and subject to a joint sovereignty of the three coastal
states’: Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras), ICJ Reports 1992 p 351, 601. Also Gulf of
Fonseca (1917) 11 AJIL 674. In each case the particular regime will
depend on the facts, and it is unsafe to rely on any general theory of
community of property.
3
E.g. British Sovereign Base Areas in Cyprus. Further: Hendry &
Dickson, British Overseas Territories Law (2011) 339–42.
4
Or elsewhere: cf the John F Kennedy Memorial Act 1964, s1 which
transferred to and vested in the US land at Runnymede, England for an
estate in fee simple absolute to be held in perpetuity.
5
Cf Lauterpacht, 1 International Law(1970) 367, 367–70. Generally:
Shan et al (eds), Redefining Sovereignty in International Economic
Law (2008).
6
It is assumed that the form which the occupation took was lawful.
See Jennings (1946) 23 BY 112, and on post-1945
Germany, Crawford, Creation of States (2nd edn, 2006) 452–66, 523–6;
chapter 5.
7
L v N (1947) 14 ILR 242. The basic rule in the modern law of military
occupation that the occupation of territory during war does not confer
sovereignty upon the occupying power is borne out, inter alia, in Arts 43,
45 of the Hague Regulations 1907 which establish the occupying force as
a mere de facto administrator: Pictet (ed), Commentary on Geneva
Convention IV of 1949 (1958) 273. Further: Fleck (ed), The Handbook of
International Humanitarian Law (2nd edn, 2008) 273–84. Cf McCarthy
(2005) 10 JCSL 43, questioning the right of the Coalition forces to
implement structural changes in the government of Iraq during its
occupation 2003–04. Another instance is provided by the situation in
which the ceding state still administers the ceded territory, by agreement
with the state taking cession: Gudder Singh v The State (India) (1953) 20
ILR 145. Further examples of delegated powers: Quaglia v
Caiselli (1952) 19 ILR 144; Nicolo v Creni (1952) 19 ILR 145. On
belligerent occupation generally: Benvenisti, The International Law of
Occupation (1993); Dinstein, The Law of Belligerent Occupation (2009).
On the issue of Northern Cyprus, see e.g. Loizidou v Turkey (1996) 108
ILR 443, 462: Cyprus, which does not exercise effective control over
Northern Cyprus, ‘has remained the sole legitimate Government of
Cyprus’; also Tomko v Republic of Cyprus, ILDC 834 (CY 2007). Further,
the lack of effective control over part of a state’s territory does not
diminish that state’s rights over that territory under international law. E.g.
the Republic of Cyprus, whilst not having effective control over the
occupied northern part of the island, is still entitled to exercise its
sovereign rights over the latter’s airspace under the Chicago Convention
on Civil Aviation: KTHY v Secretary of Transport [2009] EWHC 1918
(Admin) §52; [2010] EWCA Civ 1093, §§38, 68–9; also Franklin (2011)
36 Air & Space L 109; Franklin & Porter (2010) 35 Air & Space L 63.
8
On recent international administrations: e.g. Knoll, The Legal Status of
Territories Subject to Administration by International
Organisations (2008); Stahn, The Law and Practice of International
Territorial Administration (2008); Wilde, International Territorial
Administration (2008).
9
E.g. GCCS, 28 April 1958, 499 UNTS 311, Art 2, recognized as
customary law in North Sea Continental Shelf (Federal Republic of
Germany/Netherlands; Federal Republic of Germany/Denmark), ICJ
Reports 1969 p 3, 19, reiterated in UNCLOS, 10 December 1982, 1833
UNTS 3, Art 77.
10
International Status of South West Africa, ICJ Reports 1950 p 128,
150 (Lord McNair). Also Perritt (2003) 8 UCLA JILFA 385.
11
Treaty of Friendship, 17 July 1918, 981 UNTS 364, Art 3.
12
Now Treaty of 24 October 2002, 48 AFDI 792, 48; Crawford (2nd edn,
2006) 328.
13
South West Africa (Ethiopia v South Africa; Liberia v South Africa),
Preliminary Objections, ICJ Reports 1962 p 319, 482 (Judges Spender &
Fitzmaurice, diss).
14
Eritrea v Yemen(Territorial Sovereignty) (1998) 114 ILR 1, 40, 115,
where the Tribunal held that Yemen had not shown that the doctrine of
reversion exists in international law.
15
136 UNTS 45.
16
E.g. Burna v US, 240 F.2d 720 (1957). Also: Oda & Owada (eds), The
Practice of Japan in International Law 1961–1970 (1982) 76–96.
17
(1968) 7 ILM 554; Rousseau (1970) 74 RGDIP 682, 717; Rousseau
(1970) 64 AJIL 647.
18
Lighthouses in Crete and Samos (1937) PCIJ Ser A/B No 71, 126–30.
Also: 1 Lauterpacht (1970) 367, 372–3.
19
Treaty between China and Great Britain, 29 August 1842, 30 BFSP
389. On the expiry of the lease: UKMIL (1985) 56 BY 363, 483–5; UKMIL
(1986) 57 BY 487, 513–14, 529–34. Further: Malanczuk, ‘Hong Kong’
(2010) MPEPIL.
20
Secretary of State for India v Sardar Rustam Khan (1941) 10 ILR 98.
Also: Union of India v Sukumar Sengupta (1990) 92 ILR 554, for
discussion on the difference between a lease and servitude.
21
Panama-US Convention of 18 November 1903, USTS No 431. In In re
Cia de Transportes de Gelabert (1939) 9 ILR 118, the Panama Supreme
Court held that Panama retained ‘its jurisdictional rights of sovereignty’ in
the airspace of the Canal Zone. Cf Stafford Allen & Sons, Ltd v Pacific
Steam Navigation Co [1956] 2 All ER 716. The Panama Canal Treaty
and the Treaty Concerning the Permanent Neutrality and Operation of
the Panama Canal, 7 September 1977, 1161 UNTS 177, 1280 UNTS 3,
superseded the 1903 Convention: Arcari, ‘Panama Canal’
(2009) MPEPIL.
22
Lazar (1968) 62 AJIL 730; Lazar (1969) 63 AJIL 116; Johns (2005)
16 EJIL 613; Strauss (2006–07) 10 NYCLR 479. Another example is the
British Indian Ocean Territory (BIOT). In 1966, the UK made the BIOT
available to the US for a period of at least 50 years; it subsequently
agreed to the establishment of a military base on Diego Garcia Island
and to allow the US to occupy the other islands of the Archipelago if they
should wish to do so. Cf Bancoult v Foreign Secretary [2008] UKHL 61.
On the alleged violations of the indigenous people’s rights in
BIOT: Bancoult v McNamara, 445 F.3d 427 (DC Cir, 2006); 549 US 1166
(2007); and the cases pending before the ECtHR, Chagos Islanders v
UK, Application 35622/04, and an UNCLOS Annex VII Tribunal (Mauritius
v UK): see ITLOS/Press 164, 25 March 2011.
23
Agreement between Cuba and the United States for the Lease of
Lands for Coaling and Naval Stations, 16 and 23 February 1903, 192
CTS 429.
24
Treaty Concerning the Relations between the United States of
America and the Republic of Cuba, 29 May 1934, 150 LNTS 97.
25
Further: de Zayas, ‘Guantánamo Naval Base’ (2009) MPEPIL.
26
Ronen, ‘Territory, Lease’ (2008) MPEPIL. Further: GabčíkovoNagymaros Project (Hungary/Slovakia), ICJ Reports 1997 p 7, 64–5.
27
Particularly in relation to the US use of its naval facility at
Guantanamo to house detainees captured as part of the so-called ‘war
on terror’: e.g. Steyn (2004) 53 ICLQ 1 (describing the facility as a ‘legal
black hole’); Abbasi v Foreign Secretary [2002] EWCA Civ 1598 (Eng)
§64. Also: de Zayas (2003–04) 37 UBCLR 277; Neuman (2004)
50 Loyola LR 1; Johns (2005) 16 EJIL 613. Key US decisions are Rasul v
Bush, 542 US 466 (2004); Hamdan v Rumsfeld, 548 US 557
(2006); Boumediene v Bush, 553 US 723 (2008); Al Maqaleh v Gates,
605 F.3d 84 (DC Cir, 2010). Also: Khadr v Canada (No 1) (2008) 143 ILR
212; Khadr v Canada (No 2) (2009) 143 ILR 225.
28
Another example of a modern lease agreement is the US Manas
Airbase in Kyrgyzstan, renewed in 2010: US–Kyrgyzstan Status of
Forces Agreement, 4 December 2001.
29
A-G of Israel v El-Turani (1951) 18 ILR 164.
30
E.g. SC Res 687 (1991) re-confirming the territorial sovereignty of
both Iraq and Kuwait while imposing a demilitarized zone in the border
region between the states; SC Res 1973 (2011) re-confirming the
territorial sovereignty of Libya while imposing a no-fly zone.
31
Request for Interpretation of the Judgment of 15 June 1962 in the
case concerning the Temple of Preah Vihear (Cambodia v Thailand),
Order of 18 July 2011, §§39–42, 61.
32
Verzijl, 2 International Law in Historical Perspective (1969) 339–454;
Rousseau, 2 Droit International Public(1974) 276–300. On the unique co-
seigneury of Andorra before the adoption of its constitution in 1993
see Cruzel v Massip (1960) 39 ILR 412; Re Boedecker & Ronski (1965)
44 ILR 176; Crawford (1977) 55 RDISDP 258. Now:
Duursma, Fragmentation and the International Relations of MicroStates (1996) 316–73.
33
Ex parte Mwenya [1960] 1 QB 241 (sovereignty of the British Crown
over the protectorate of Northern Rhodesia indistinguishable in legal
effect from that of a British colony; habeas corpus thus
available). Mwenya was cited by the US Supreme Court in Rasul v Bush,
542 US 466, 482 (2004).
34
Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v Nigeria), ICJ Reports 2002 p 303, 402–7 (kings and chiefs
of Old Calabar).
35
Cf Nationality Decrees Issued in Tunis and Morocco (1923) PCIJ Ser
B No 4, 27.
36
Rousseau, 3 Droit International Public (1977) 197–8; Verzijl (1969)
477–8.
37
15 May 1955, 217 UNTS 223, Art 4.
38
(1920) 14 AJIL Supp 30. See Customs Regime between Germany
and Austria (1931) PCIJ Ser A/B No 41.
39
E.g. when Great Britain acquired sovereignty over Australia’s Northern
Territory in 1824 it also acquired sovereignty over the territorial sea ‘by
operation of international law’: Yarmirr v Northern Territory (2001) 125
ILR 320, 350. Cf Art 1 of the Convention on International Civil Aviation, 7
December 1944, 15 UNTS 295, reflecting customary law: ‘[t]he
contracting States recognize that every State has complete and exclusive
sovereignty over the airspace above its territory’; KTHY v Secretary of
Transport [2009] EWHC 1918 (Admin), §41; [2010] EWCA Civ 1093, §26.
40
Claims to territory and treaties of transfer usually refer to territory as
specified, or islands, without referring to territorial waters: e.g. the Italian
Peace Treaty, 10 February 1947, 49 UNTS 3, Arts 11, 14; Treaty between
US and Cuba relating to the Isle of Pines, 2 March 1904, 127 LNTS
143: Wright (1925) 19 AJIL 340.
41
41
Grisbadarna (Norway v Sweden) (1909) 11 RIAA 147, 155.
Cf Procurator General v D (1948) 15 ILR 70 (status of the maritime belt
determined by that of the adjoining land); on the power of the mandatory
to legislate for the territorial waters of the mandated territory, Naim
Molvan v A-G for Palestine [1948] AC 351.
42
1 Oppenheim 479–84; also Towey (1983) 32 ICLQ 1013.
43
Fisheries (UK v Norway), ICJ Reports 1951 p 116, 160 (Judge McNair,
diss). Also: Fitzmaurice (1954) 31 BY 371, 372–3; Fitzmaurice (1957) 92
Hague Recueil 1, 129, 137–8.
44
The following works are helpful, since the problems in the sphere of
international law are basically the same: Honoré, in Guest (ed), Oxford
Essays in Jurisprudence (1961) 107, 134–41; Buckland
& McNair, Roman Law and Common Law (2nd edn, 1965) 71–
88 (excursus by Lawson). Also: Castellino & Allen, Title to Territory in
International Law (2003).
45
Basdevant, Dictionnairedelaterminologiedudroitinternational (1960) sv. Cf
Salmon (ed), Dictionnaire de droit international public (2001) 1084.
46
Honoré, in Guest (1961) 137, for a definition of a unititular system:
‘[u]nder it, if the title to a thing is in A, no title to it can be acquired
(independently) by B, except by a process which divests A. There is only
one “root of title” for each thing, and the present title can ultimately be
traced back to that root.’
47
Jennings, Acquisition of Territory in International Law (1963) 5–6. The
common law is ‘multititular’: Honoré, in Guest (1961) 139; so is
international law: Legal Status of Eastern Greenland (1933) PCIJ Ser A/B
No 53, 46; Island of Palmas (Netherlands v US) (1928) 2 RIAA 829, 840.
48
Statute of the International Court of Justice, 26 June 1945, 33 UNTS
993, Art 59.
49
On the effect of treaties of cession or renunciation relating to
territories the boundaries of which are undetermined: Interpretation of
Article 3, Paragraph 2, of the Treaty of Lausanne (1925) PCIJ Ser B No
12, 21.
50
50
Kasikili/Sedudu Island (Botswana v Namibia), ICJ Reports 1999 p
1045, 1061–2; Frontier Dispute (Benin v Niger), ICJ Reports 2005 p 90,
149–50. Also: Guyana/Suriname Arbitration (2007) 139 ILR 566, §§137,
194, 226, 301. Generally: Cukwurah, The Settlement of Boundary
Disputes in International Law (1967); 3 Rousseau (1977) 231–72;
Brownlie, African Boundaries (1979); Shaw, Title to Territory in
Africa (1986) 221–63; Biger (1989) 25 MES 249; McCaffrey, The Law of
International Watercourses (2nd edn, 2007) 70–2; Islam, The Law of
Non-Navigational Uses of International Watercourses (2010).
51
Cameroon v Nigeria, ICJ Reports 2002 p 303, 400–7. Also
McNair, Treaties (1961) 656, 665.
52
Island of Palmas (Netherlands v US) (1928) 2 RIAA 829, 842.
53
Guiana Boundary (Brazil v UK) (1904) 11 RIAA 11, 22.
54
Boundary Agreement between China and Pakistan, 2 March 1963,
(1963) 57 AJIL 713, which is expressed as fixing ‘the alignment of the
boundary between China’s Sinkiang and the contiguous areas the
defence of which is under the actual control of Pakistan’. Thus India’s
rights in respect of Kashmir are not foreclosed (Art 6 of the Agreement).
55
‘A right of transit by one country across the territory of another can
only arise as a matter of specific agreement’: Iron Rhine (Belgium v
Netherlands) (2005) 27 RIAA 35, 64.
56
E.g. the rights of Costa Rica over the San Juan River: Navigational
and Related Rights (Nicaragua v Costa Rica), ICJ Reports 2009 p 213.
57
McNair (1961) 656. Others speak of ‘international servitudes’, a term
McNair rejects since it ‘would make the category depend upon the
recognition by international law of the institution known as a servitude,
which is highly controversial’. See however Eritrea v Yemen (Territorial
Sovereignty) where the Tribunal noted that the traditional open fishing
regime in the southern Red Sea together with the common use of the
islands in the area by populations of both coasts was capable of creating
historic rights accruing to the two states in dispute in the form of ‘a
“servitude internationale” falling short of territorial sovereignty’: (1998)
114 ILR 1, 40–1. Evidently the Tribunal could not quite stomach the idea
of a servitude in English. In the region this well-meaning dictum has been
a further source of conflict. On the question of servitudes see also Right
of Passage over Indian Territory (Portugal v India), ICJ Reports 1960 p
6; Aaland Islands (1920) LNOJ Sp Supp No 3, 18; SS Wimbledon (1920)
PCIJ Ser A No 1, 24. Traditionally, such rights were to be interpreted
restrictively as limitations to sovereignty. However, such a restrictive
interpretation has been rejected in more recent cases: e.g. Iron
Rhine (2005) 27 RIAA 35, 64–7; Navigational Rights, ICJ Reports 2009 p
213, 237–8.
58
23 August 1978, 1946 UNTS 3. Art 12 does not however say when
rights and duties are so considered.
(p. 215) 9 Acquisition and Transfer of Territorial
1
Sovereignty
1. Introduction
Disputes concerning title to land territory, including islands, and over the
precise determination of boundaries are regularly the subject of
international proceedings. Recourse to arbitration may be part of an
overall peace settlement.2 But many such conflicts are dormant and it is
only when a dispute flares up that it receives publicity. While the
occupation of territory not belonging to any state (terra nullius) is no
longer a live issue, issues concerning such occupation in the past may
still arise. Legally relevant events may have occurred centuries ago.3 The
pressures of national sentiment, the exploitation of areas once thought
barren or inaccessible, the strategic significance of areas previously
neglected, and the pressure of population on resources suggest that
territorial disputes will continue to be significant.
References
(p. 216) 2. Determining Title
(A) The Centrality of Title4
If the basic unit of the international legal system is the state, the space
which the state occupies in the world is its territory, traditionally thought of
as realty, with the state (a person) its proprietor. Thus there were sales
and bequests of state territory, leaseholds and reversions, with little or no
regard for the wishes of the inhabitants. Indeed international law
developed a notion of entitlement to territory well before the state itself
developed as a normative concept. Thereafter title arose not simply by
physical occupation (i.e. actual administration, often referred to
as effectivités) but through acquisition in accordance with law—although
until 1928, the law included the rule that coerced treaties were valid.5 Yet
there were areas of uncertainty, with territory (oft en islands, islets, or
rocks but sometimes whole provinces) contested between states.6 In
such cases it was largely a historical question which of the claimant
states had the better claim.
The basic principle in the modern law is that stated by the Chamber
in Frontier Dispute (Burkina Faso/Mali):
Where the act corresponds exactly to law, where effective administration is additional to
the uti possidetis iuris, the only role of effectivité is to confirm the exercise of the right
derived from a legal title. Where the act does not correspond to the law, where the
territory which is the subject of the dispute is effectively administered by a State other
than the one possessing the legal title, preference should be given to the holder of the
title. In the event that the effectivité does not co-exist with any legal title, it must
invariably be taken into consideration. Finally, there are cases where the legal title is not
capable of showing exactly the territorial expanse to which it relates. The effectivité can
then play an essential role in showing how the title is interpreted in practice.7
Thus title prevails over possession, but if title is equivocal, possession
under claim of right matters.
Title to territory, like ownership of land, is normally ‘objective’, but there is
no system of registration, no international Torrens title.8 Unquestioned
title is a contingency
References
(p. 217) arising from history, general recognition, and the absence of any
other claimant. Title may be relative in several quite different contexts.
(1) The principle nemo dat quod non habet(no donor can give a
greater interest than he or she already has) places a restrictive
effect on titles dependent on bilateral agreement: see chapter 8.
(2) A judicial decision on issues of title cannot foreclose the rights
of third parties.
(3) In a situation where physical holding is not conclusive of the
question of right, recognition becomes important, and this may be
forthcoming from some states and not others.
(4) The compromison the basis of which a dispute is submitted to
a court or tribunal may assume that title is to go to one of the two
claimants. In Minquiers and Ecrehos the Court interpreted
the compromisas excluding a finding that the islets were res
nulliusor subject to a condominium.9In such a case, in the
absence of any other claimant, the result seems to be a title valid
against all, but the parties have not had to come up to any
minimum requirements of effective control.
(5) In any event, in instances such as Island of
Palmas and Minquiers and Ecrehos,10the Court assesses the
relative intensity of the competing acts of state authority to
determine which party has the better right.
(6) In appropriate circumstances the Court will lean in favour of
title in one claimant even though there are grounds for a finding
that the territory was at the relevant time terra nullius. Thus
in Eastern Greenland11Danish activity in the disputed area had
hardly been intensive, but the Court refused to consider the
area terra nullius.12
(7) In some cases the sheer ambiguity of the facts may lead the
Court to rely on matters which are less than fundamental,13or to
seek evidence of acquiescence by one party. In this context it is
academic to use the classification ‘inchoate’. A title, though resting
on very preliminary acts, is sufficient as against those without a
better title.14In coming to a decision on the question of right, it may
be necessary to measure ‘titles’ against each other.15
References
(p. 218) (B) The Intertemporal Law16
In many instances the rights of parties to a dispute derive from a legally
significant act done, or treaty concluded, long ago. As Fitzmaurice says,
it is ‘an established principle of international law that in such cases the
situation in question must be appraised, and the treaty interpreted, in the
light of the rules of international law as they existed at the time, and not
17
as they exist today’.17 In Island of Palmas, Judge Huber stated the
principle and continued: ‘The effect of discovery by Spain is…to be
determined by the rules of international law in force in the first half of the
16th century—or (to take the earliest date) in the first quarter of
it…’.18 The rule has also been applied in the interpretation of treaties
concerning territory.19 It is justified by reference to the need for
predictability and stability in the international system of title.20
In Island of Palmas, Judge Huber had to consider whether Spanish
sovereignty over the island subsisted at the critical date in 1898. In doing
so he gave a new dimension to the rule:
As regards the question which of different legal systems prevailing at successive periods
is to be applied in a particular case (the so-called intertemporal law), a distinction must
be made between the creation of rights and the existence of rights. The same principle
which subjects the act creative of a right to the law in force at the time the right arises,
demands that the existence of the right, in other words its continued manifestation, shall
follow the conditions required by the evolution of law.21
This extension of the doctrine has been criticized on the grounds that to
require title to be actively maintained at every moment of time would
threaten many titles and lead to instability.22 This emphasizes the need
for care in applying the rule.23 In any case the intertemporal principle
does not operate in a vacuum: its impact will be reduced
References
(p. 219) by the effect of recognition, acquiescence, and the rule that
abandonment is not to be presumed. Thus in Pedra Branca, the historic
title of the Sultanate of Johore to the disputed features survived into the
modern period, despite little or nothing by way of the exercise of
governmental authority over them.24
(C) The Critical Date25
In any dispute a certain date will assume prominence in the process of
evaluating the facts. The choice of such a date is within the province of
the tribunal and will depend on the logic of the law applicable to the facts
as well as on the practical necessity of confining the dossier to the more
relevant facts and thus to acts prior to the existence of a dispute. In the
latter context the tribunal is simply excluding evidence consisting of selfserving acts of parties after the dispute arose. But evidence of acts and
statements occurring after the critical date may be admissible if not selfserving, as in the case of admissions against interest. There are several
types of critical date, and it is difficult and probably misleading to
formulate general definitions:26 the facts of the case are dominant
(including the terms of the special agreement empowering the tribunal to
hear the case) and there may be no necessity for a tribunal to choose
any date whatsoever.
In some cases there will be several dates of significance. Eastern
Greenland arose from a Norwegian proclamation of 10 July 1931
announcing occupation of the area. The Court held that ‘as the critical
date is July 10th, 1931…it is sufficient [for Denmark] to establish a valid
title in the period immediately preceding the occupation.’27 In Island of
Palmas the US claimed as successor to Spain under a treaty of 10
December 1898, and everything turned on the nature of Spanish rights at
that time. The Court did not specifically choose a critical date
in Minquiers and Ecrehos.28 In Argentine-Chile Frontier the tribunal
‘considered the notion of the critical date to be of little value in the
present litigation and…examined all the evidence submitted to it,
irrespective of the date of the acts to which such evidence relates’.29
References
(p. 220) (D) Terra Nullius30
Terra nullius is land not under the sovereignty or authority of any
state; occupatio was the mode by which such territory could be
acquired.31 In the modern context, it has fallen into disuse. This is
because there remains on the surface of the earth no truly ‘vacant’
territory,32 but also because the term gradually assumed imperialist
overtones when it was used to justify colonization of large areas of
inhabited lands through a theory of European supremacy. That theory
underlay the Congress of Berlin of 1885 but now ‘stands
condemned’.33 In Western Sahara, the Court had to decide whether the
Western Sahara was terra nullius at the time of Spanish colonization (in
the 1890s). It held it was not, because the people of the territory were
socially and politically organized under chiefs with a capacity to represent
them. In fact the territory was acquired by treaty, not occupation.34
3. The ‘Modes’ of Acquisition
(A) Basic Principles
Standard textbooks, particularly those in English, classify the modes of
acquisition in a stereotyped way reflecting those of Roman
law.35 According to this analysis there are five modes of acquisition—
occupation, accretion, cession, conquest, and prescription. But the
concept of modes of acquisition is unsound in principle: such labels only
make the task of analysis more difficult.36 The inadequacies of the
orthodox approach are more apparent when the relevant questions have
been examined, but a few things may be usefully said here.
First, it is common to classify the five orthodox modes of acquisition as
‘original’ or ‘derivative’. Occupation and accretion are usually described
as ‘original’, cession as ‘derivative’. There are differences of opinion in
regard to conquest and prescription, and again the classification has no
practical value.37 In one sense all titles are original, since much depends
on the acts of the grantee in the case of a cession. In any event the
References
(p. 221) dual classification oversimplifies the situation, and the modes
described as ‘derivative’ are so in rather different ways. Moreover the
usual analyses do not explain how title is acquired when a new state
comes into existence.38 Events leading to independence of the new state
are mostly within the domestic jurisdiction of another state, yet they are
legally relevant to territorial disputes involving the new state. In this type
of case there is no ‘root of title’ as such: title is a by-product of the events
leading to the creation of a state as a new source of territorial
sovereignty.39
Secondly, in determining title, a tribunal will concern itself with proof of
the exercise of sovereignty via conduct à titre de souverain before the
critical date or dates, and will not apply the orthodox analysis to describe
its process of decision. The issue of territorial sovereignty is often
complex and involves the application of various legal principles to the
facts, including (as concerns the modern period) principles deriving from
the prohibition on the acquisition of territory by force and the invalidity of
coerced treaties. The result often cannot be ascribed to any single ‘mode
of acquisition’. Orthodox analysis does not allow for the interaction of
acquiescence and recognition with the other rules. Furthermore, a
category like ‘cession’ or ‘prescription’ may bring quite distinct situations
into unhappy fellowship.40 Lastly, the importance of showing a better right
in contentious cases, that is, of relative title, is obscured if too much
credit is given to the five ‘modes’. Thus the following headings represent
categories of convenience.
(B) Original and Historic Title
It may happen that a current dispute involves not only reliance upon the
exercise of state authority but the invocation of an ancient, original or
historic title. The concept informs the principle of ‘immemorial possession’
and reliance upon evidence of general repute or opinion as to matters of
historical fact. Particularly in Asia, traditional boundaries play a significant
role.41 International tribunals have recognized the concept of ancient or
original title,42 but require appropriate evidence in support.
(C) Effective Occupation43
The concept of effective occupation in international law represents the
type of legal relation which in private law would be described as
possession. In Eastern Greenland
References
(p. 222) the Permanent Court said ‘a claim to sovereignty based not upon
some particular act or title such as a treaty of cession but merely upon
continued display of authority, involves two elements each of which must
be shown to exist: the intention and will to act as sovereign, and some
actual exercise or display of such authority’.44 This statement has not lost
its force, and was (in part) reiterated in Eritrea/Yemen: ‘[t]he modern
international law of the acquisition (or attribution) of territory generally
requires that there be: an intentional display of power and authority over
the territory, by the exercise of jurisdiction or State functions, on a
continuous and peaceful basis’.45
In the absence of a formal basis of title in a treaty or judgment, and in a
system without registration of title, possession plays a significant role. It
must be borne in mind that ‘legal possession’ involves a search for an
interest worth protection by the law. Legal policy may lead a court to
regard as sufficient a tenuous connection with the territory in certain
conditions. Moreover, what is important is state activity and especially
acts of administration: use by local peoples generally lacks this element
and is only tangentially relevant.46‘Occupation’ here derives
from occupatio in Roman law and does not necessarily signify occupation
in the sense of actual settlement and a physical holding.
As in private law, the concept of effective occupation is complex, and
many difficulties arise in applying it to the facts. Precisely what acts will
be sufficient to found sovereignty is a matter of fact and degree,47 and
may depend on the character of the territory: for example, the bar with
respect to remote and sparsely settled areas will be set lower than in the
context of more heavily populated territory.
Effective and long-established occupation is key to a claim of acquisitive
prescription, although courts and tribunals have rarely applied that
doctrine as such.48 In practice it may not be easy to distinguish effective
occupation and prescription, and neither Island of Palmas nor Eastern
Greenland employs the categories. Beckett classified the former as a
case of prescription, the latter as resting on occupation.49 But in both
cases the issue was simply which of two competing sovereignties had the
better right. Prescription classically involves usurpation, yet these cases
involved, for all practical purposes, contemporaneous, competing acts of
state sovereignty. In
References
(p. 223) Minquiers and Ecrehos, the Court stated the issue as one of
possession,50 which in the context was equated with sovereignty.51 Its
task was ‘to appraise the relative strength of the opposing claims to
sovereignty over the Ecrehos’.52
(i) Discovery53
This category, much employed, is equally unsatisfactory for the purpose
of legal analysis. It links the concept of ‘discovery’ to that of terra nullius,
and is discredited for the same reasons. At one time it was thought that in
the fifteenth and sixteenth centuries discovery conferred a complete
title.54 But it seems that it gave no more than an inchoate title: an
effective act of appropriation seems to have been necessary.55 The
modern view, certainly, is that it gave no more than an inchoate title, an
option, as against other states, to proceed to effective occupation within a
reasonable time.56 In Island of Palmas the US argued that, as successor
to Spain, its title derived from Spanish discovery in the sixteenth century.
Huber responded that, even if discovery without more gave title at that
time, the continued existence of the right must be determined according
to the law prevailing in 1898, the critical date. In his opinion the modern
law is that ‘an inchoate title of discovery must be completed within a
reasonable period by the effective occupation of the region claimed to be
discovered’.57 British58 and Norwegian59 practice supports this view. The
US view now is that mere discovery gives no title, inchoate or otherwise,
and this has much to commend it.60 The notion of discovery only makes
sense if it is placed firmly in the context of effective occupation, and it is
best to avoid the category altogether. Further, the notion of inchoate title
is misleading. Title is never ‘inchoate’, though it may be weak if it rests on
slight evidence of state activity.
References
(p. 224) (ii) Symbolic annexation61
Symbolic annexation62 may be defined as a declaration or other act of
sovereignty or an act of private persons, duly authorized, or subsequently
ratified by a state, intended to provide unequivocal evidence of the
acquisition of sovereignty over a parcel of territory or an island. The
subject must be seen as a part of the general question of effective
occupation. There is no magic in the formal declaration of sovereignty by
a government, whether or not this is preceded, accompanied or followed
by a formal ceremony in the vicinity. In the case of uninhabited,
inhospitable and remote regions little is required in the nature of state
activity and a first, decisive act of sovereignty may suffice to create a
valid title. But in principle the state activity must satisfy the normal
requirements of ‘effective occupation’. ‘Symbolic annexation’ does not
give title except in special circumstances (as in Clipperton Island).
However, it is a part of the evidence of state activity. It has been stated
that ‘a prior State act of formal annexation cannot after a long interval
prevail against an actual and continuous display of sovereignty by
another State’.63 But if the initial act was effective to vest title then a
latecomer can only succeed, if at all, on the basis of prescription or
acquiescence. To require too much in respect of the maintenance of
rights may encourage threats to the peace. In the case of remote islands,
it is unhelpful to require a determinate minimum of ‘effectiveness’, once
title is actually established.64
In Clipperton Island a French lieutenant, duly authorized, proclaimed
French sovereignty in 1858: this was notified to the government of Hawaii
by the French consulate. In 1897, after inactivity in the intervening years,
a French vessel called at the island and found three Americans collecting
guano for an American company. The US denied any intention of
claiming sovereignty. In the same year the island received its first visit
from a Mexican gunboat and a diplomatic controversy began. The
Mexican case rested on Spanish discovery, but the arbitrator held that
even if a historic right existed it was not supported by any manifestation
of Mexican sovereignty. The award continues:
if a territory, by virtue of the fact that it was completely uninhabited, is, from the first
moment when the occupying State makes its appearance there, at the absolute and
undisputed disposition of that State, from that moment the taking of possession must be
considered as accomplished, and the occupation is thereby completed.65
References
(p. 225) The annexation, though symbolic in form, had legal effect.
(iii) Effective and continuous display of state authority
As was noted by Huber in Island of Palmas ‘the actual continuous and
peaceful display of state functions is in the case of dispute the sound and
natural criterion of territorial sovereignty’.66 This is in contrast to older
works on international law, stressing a nineteenth-century view of
occupation in terms of settlement and close physical
possession.67 Rather the question has become one of administrative
character, under which those acts which are reflective of the intention to
govern, and not merely to possess in some nominal fashion, are
constitutive of title.68
Thus, in Island of Palmas the Dutch claim to the contested territory was
preferred on the basis of evidence ‘which tends to show that there were
unchallenged acts of peaceful display of Netherlands sovereignty from
1700 to 1906 and which…may be regarded as sufficiently proving the
existence of Netherlands sovereignty’.69In Eastern Greenland the Danish
claim, based not on any physical presence in the contested territory but
on (a) the long-term presence of colonies in other parts of Greenland, (b)
the wording of legislation and treaties so as to render them applicable to
Eastern Greenland, and (c) seeking to have the resulting title recognized
internationally, was held to be superior to the Norwegian claim, based on
the wintering of various expeditions in the territory and the construction of
a wireless station there. The Permanent Court held that Denmark, at
least in the 10 years prior to Norwegian involvement, had ‘displayed and
exercised her sovereign rights to an extent sufficient to constitute valid
title to sovereignty’.70
The emphasis on the display of state activity, and the interpretation of the
facts in the light of a legal policy which favours stability and allows for the
special characteristics of uninhabited and remote territories, suggest a
change in the law.71 The modern law concentrates on title, on evidence
of sovereignty, and the notion of occupation has been refined
accordingly.72 Thus in Minquiers and Ecrehos in relation to the Ecrehos
group the Court was concerned with acts involving the exercise of
jurisdiction, local administration, such as the holding of inquests,73 and a
British Treasury Warrant of 1875 constituting Jersey a Port of the
Channel Islands.74
References
(p. 226) By contrast acts by private persons purporting to appropriate
territory may be ratified by the state and may then constitute evidence of
its effective occupation.75 Otherwise they will have no legal effect.76
(iv) The intention to act as sovereign
The requirement of an intention to act as sovereign, otherwise referred to
as animus occupandi77 or animus possidendi,78 is generally stressed.
However, the notion may create more problems than it solves: Ross
described the subjective requirement of the ‘will to act as sovereign’ as
‘an empty phantom’.79 In truth the subjective criterion is unrealistic in
seeking a coherent intention from activity involving numerous individuals
often over a considerable period of time. Furthermore, the criterion begs
the question in many cases where there are competing acts of
sovereignty.80
In certain contexts, however, the animus occupandi (or something like
it) has a function. First, the activity must be à titre de souverain in the
sense that the agency must be that of the state and not of unauthorized
persons. Secondly, it has a negative role: if the activity is by the consent
of another state recognized as the rightful sovereign then no amount of
state activity is capable of maturing into sovereignty. Thirdly, the state
activity taken as a whole may be explicable only on the basis that
sovereignty is assumed.81 Thus in Minquiers and Ecrehos the fact that
both parties had conducted official hydrographic surveys of the area was
not necessarily referable to an assertion of sovereignty by either. But
certain forms of activity, whilst not necessarily connected with territorial
sovereignty, have probative value, for example, the exercise of criminal
jurisdiction.
(D) Cession82
A right to territory may be conferred by treaty, provided the transferee
takes in accordance with the treaty.83 An actual transfer is not
required.84 The date on which title
References
(p. 227) changes will normally be the date on which the treaty comes into
force:85 an unratified treaty does not confer sovereignty.86 Naturally the
transferee cannot receive any greater rights than those possessed by the
transferor: nemo dat quod non habet.87
Apart from cession and transfer in accordance with a treaty, title may
exist on the basis of a treaty alone, the treaty marking a reciprocal
recognition of sovereignty in solemn form.88 In the case of a disputed
frontier the boundary treaty which closes the dispute will create title,
previously unsettled, whereas a treaty of cession merely transfers an
extant (though definitive) title.89 In the case where a territorial regime is
established by a treaty, this settlement achieves a permanence which the
treaty itself does not necessarily enjoy: the continued existence of that
regime is not dependent upon the continuing life of the treaty under which
the regime is agreed.90
(i) Agreements concluded with indigenous rulers91
Treaties between indigenous peoples and the state were a feature of the
period of colonization but are of limited relevance, externally, following
the partition of the world into independent equal states. The early position
was defined primarily in the era of Western European colonial expansion,
notably in the so-called ‘Scramble for Africa’,92 under which an immense
number of treaties were concluded with various African polities.93 Such
arrangements with indigenous rulers were not normally considered as
cessions, but gave a form of derivative title distinguishing the act of
acquisition from that of mere occupation. This was characterized by
Huber in Island of Palmas as follows:
In substance, it is not an agreement between equals; it is rather a form of internal
organisation of a colonial territory, on the basis of autonomy of the natives…And thus
suzerainty
References
(p. 228) over the native States becomes the basis of territorial sovereignty as towards
other members of the community of nations.94
Subsequent decisions of the International Court have qualified Huber’s
dictum to a degree. In Western Sahara the Court stated that in the period
beginning in 1884, ‘agreements with local rulers, whether or not
considered as an actual “cession” of the territory, were regarded as
derivative roots of title, and not original titles obtained by occupation
of terra nullius’.95
In Cameroon v Nigeria, the Court was called upon to determine the legal
effect of an 1884 treaty between the UK and the ‘Kings and Chiefs of Old
Calabar’, an area in the Niger Delta, and its consequent effect on the
UK’s capacity to deal later with the ter-ritory.96 Nigeria considered the
1884 treaty to have created an international protectorate, which did not
therefore result in the transfer of title to the UK; rather it remained vested
in Old Calabar as a sovereign entity. The Court disagreed, noting that: (a)
at the time, the UK did not regard Old Calabar as a state, a position
consistent with its activity in the rest of the region; (b) the region did not
possess a central federal authority sufficient to create a protectorate; (c)
British activity in the region was reflective of an intention to administer,
rather than merely protect; and (d) Nigeria was unable to identify with any
degree of precision the source and character of Old Calabar’s
international personality, either in 1884 or thereaft er.97The Court
concluded that ‘under the law at the time, Great Britain was in a position
in 1913 to determine its boundaries with Germany in respect of Nigeria,
including in the southern section’.98
(ii) Renunciation or relinquishment
It is possible for states to renounce title over territory in circumstances in
which the subject-matter does not thereby become terra nullius. This
distinguishes renunciation from abandonment. Furthermore, there is no
element of reciprocity, and no commitment to transfer, as in the case of a
treaty of cession. Renunciation may be recognition that another state
now has title99 or an agreement to confer a power of disposition to be
exercised by another state or a group of states.100
References
(p. 229) A series of unilateral acts may constitute evidence of an implicit
relinquishment of rights.101Renunciation is to be distinguished from
reversion, that is, recognition by an aggressor that territory seized is
rightfully under the sovereignty of the victim. Here, there is no title to
renounce.102
(E) Adjudication
While the subject is generally neglected, some jurists accept adjudication
by a judicial organ as a mode of acquisition.103 The question then, as
with a treaty of cession, is whether the award is self-executing, or merely
gives an executory right.104 At least in certain cases the award is
dispositive as between the parties: (a) when the character of the territory
is such that no physical act is necessary to its effective appropriation (this
is true of maritime delimitations); (b) where the two disputants are both
exercising acts of administration in respect of the territory concerned and
the award merely declares which of the two ‘possessors’ is a lawful
holder; (c) where the loser is to continue in possession with delegated
powers of administration and jurisdiction; (d) when the successful
claimant is already in possession; and (e) (perhaps) where the award
relates only to the detailed fixing of a frontier line.105
4. Displacement of Title
(A) The Concept of ‘Prescription’106
(i) The place of prescription in the law
At its core, prescription refers to the removal of defects in a putative title
arising from usurpation of another’s sovereignty by the acquiescence of
the former sovereign. The standard apology for the principle rests on
considerations of good faith and the need
References
(p. 230) to preserve international order and stability. It is inelegant to
describe it as a mode of acquisition: the real source of title is recognition
of or acquiescence in the consequences of unchallenged possession and
control.
Prescription is distinct from the outright abandonment or relinquishment
of territory. Abandonment refers to a situation where a state is held to
have surrendered its title, converting the territory to res nullius, before
another state establishes its own title by way of lawful allocation or
effective occupation. In the case of abandonment, there is no usurpation
of sovereignty since there are no contemporaneous competing
claims.107Relinquishment is the giving up of a claim to territory in face of
what is thereby acknowledged to be a better claim, or at least a
subsisting one.108
In particular cases the difference between prescription and effective
occupation is not easy to establish. In Island of Palmas and cases like it,
there is simply contemporaneously competing state activity: in deciding
on title the tribunal will apply the criterion of effective control associated
with ‘effective occupation’.109 To speak of prescription is unhelpful,110 and
significantly Huber avoided the term, apart from a passing reference to
‘so-called prescription’, by which he meant merely ‘continuous and
peaceful display of State sovereignty’.
(ii) The role of private law analogies
In addressing problems of prescription, writers have drawn on analogies
from the private law of both civil and common law traditions.111 From the
civilian tradition has been drawn the concept of abandonment
or derelictio, under which the title-holder makes a conscious decision to
relinquish its rights with respect to the contested territory, which may
result in its becoming res nullius prior to the assertion of the other state’s
claim. From the common law comes the doctrine of estoppel, under
which a representation made by one state that is relied on by another to
its detriment may preclude the former state from acting in a contrary
fashion. Another, now declining, source of analogy has been the civil law
doctrine of acquisitive prescription and the common law ‘equivalent’ of
adverse possession.112
References
(p. 231) Apart from the imperfect nature of these ‘sources’, there is the
distinct issue of the effect of the presumption of legality. Analogies with
municipal law reveal the difficulty with any general doctrine of
prescription. Although it is sometimes said that the International Court
would accept acquisitive prescription as a general principle of
law,113 what is the content of the general principle? Instead of providing
guidance, analogies to acquisitive prescription, adverse possession or
similar concepts tend to spark confusion and lead to inconsistent
terminology.114
(B) The Requirements of Prescription
(i) Conduct on the part of the usurping party
To establish such a case for the usurpation of title, certain prerequisites
need to be clearly established.115
(1) Possession must be exercised à titre de souverain. There
must be a display of state authority and the absence of recognition
of sovereignty in another state, for example under conditions of a
protectorate leaving the protected state with a separate
personality. Without adverse possession there can be no
prescription.
(2) The possession must be public, peaceful, and uninterrupted.
As Johnson has remarked: ‘Publicity is essential because
acquiescence is essential’.116By contrast in a situation of
competing state activity, as in Island of Palmas, publicity will not
play an important role because acquiescence may not be relevant
except in minor respects.
(3) Finally, possession must persist. In the case of recent
possession it is difficult to adduce evidence of tacit acquiescence.
A few writers have prescribed fixed periods of years.117Such
suggestions are due to a yearning after municipal models and to
the influence of the view that ‘acquiescence’ may be ‘implied’ in
certain conditions. The better view is that the length of time
required is a matter of fact depending on the particular case.118
References
(p. 232) Where the necessary effectivités on the part of the usurping
party have been established, the competing conduct of the title-holder
must be assessed to determine whether title has been relinquished.
(ii) The importance of acquiescence119
In Island of Palmas, Huber observed that the continuous and peaceful
display of effectivités by a state ‘may prevail even over a prior, definitive
title put forward by another State’.120 In the face of competing activity and
claims by another, a state may by conduct or admission acquiesce in the
extension of its competitor’s sovereignty.
At its simplest, this may take the form of an express declaration by one
state that it considers another to hold title to the territory, combined with
evidence of conduct à titre de souverainby that other. This was a key
feature in Eastern Greenland: Norway had, through a declaration by its
Foreign Minister, Nils Ihlen, accepted Danish title to the disputed
territory.121 In Pulau Buta Puteh the Court gave great weight to a
response given in 1953 by the Acting Secretary of State of Johor that ‘the
Johor government [did] not claim ownership of Pedra Branca’:
Johor’s reply shows that as of 1953 Johor understood that it did not have sovereignty
over Pedra Branca/Pulau Batu Puteh. In light of Johor’s reply, the authorities in
Singapore had no reason to doubt that the United Kingdom had sovereignty over the
island.122
Even without an express declaration of relinquishment, the absence of
state activity, combined with an absence of protest that might otherwise
be expected in response to the effectivités of the opposing party, may be
decisive.123 In the jurisprudence of the International Court, this has
become known as acquiescence, a concept which is equivalent to tacit
recognition manifested by unilateral conduct which the other party may
properly interpret as consent. Although the term originally emerged in the
context of maritime delimitation,124 it has been adopted by the Court in
the context of territorial disputes as well. In Pulau Bata Puteh, it was said
that:
Under certain circumstances, sovereignty over territory might pass as a result of the
failure of a state which has sovereignty to respond to conduct à titre de souverain of the
other
References
(p. 233) State…Such manifestations of the display of sovereignty may call for a response
if they are not opposable to the State in question. The absence of a reaction may well
amount to acquiescence…That is to say, silence may also speak, but only if the conduct
of the other State calls for a response.125
But because of the need to maintain stability and to avoid temptations to
‘squatting’, abandonment is not to be presumed.126 As the Chamber said
in Burkina Faso/Mali, where there is a conflict between title
and effectivités, preference will be given to the former.127 Accordingly,
very little evidence of effectivités will be required to prove maintenance of
title, particularly in regard to remote and uninhabited areas. In Clipperton
Island it was stated: ‘There is no reason to suppose that France has
subsequently lost her right by derelictio, since she never had
the animus of abandoning the island, and the fact that she has not
exercised her authority there in a positive manner does not imply the
forfeiture of an acquisition already definitively protected’.128 In Eastern
Greenland Norway had argued that Greenland became terra nullius after
the disappearance of the early settlements. The Court, rejecting the
argument, observed:
It is impossible to read the records of the decisions in cases as to territorial sovereignty
without observing that in many cases the tribunal has been satisfied with very little in the
way of the actual exercise of sovereign rights, provided that the other State could not
make out a superior claim. This is particularly true in the case of claims to sovereignty
over areas in thinly populated or unsettled countries.129
Similarly, in Cameroon v Nigeria the Court found that Cameroon had not
abandoned its title to the Bakassi region, despite having engaged in only
occasional acts of administration in the area due to a lack of
resources.130
Thus it would seem that nothing short of the total (or near-total) absence
of conduct à titre de souverain in an area by the title-holder will be
sufficient to signal movement away from the status quo. An illustration
is Pulau Batu Puteh where the Court held that ‘any passing of
sovereignty over territory on the basis of the conduct of the Parties…
must be manifested clearly and without any doubt by that conduct and
the relevant facts…especially so if what may be involved, in the case of
one of the parties, is in effect the abandonment of sovereignty over part
of its territory’.131 This was only
References
(p. 234) established with reference to Pulau Batu Puteh (Pedra Branca)
itself and then only because of the declaration of the Acting State
Secretary.
(iii) Estoppel132
Recognition, acquiescence, admissions constituting a part of the
evidence of sovereignty,133 and estoppel form an interrelated subjectmatter; everything depends on the precise alchemy of the opposing
parties’ effectivités, combined with the presence of some form of
representation by a party that it does not consider itself as sovereign.
In Temple the Court held that by its conduct Thailand had recognized the
frontier line contended for by Cambodia in the area of the temple, as
marked on the map drawn up by French members of a Mixed
Delimitation Commission. In particular the Court placed reliance on a visit
of a ‘quasi-official character’ by a member of the Siamese royal family to
the disputed territory where he was ‘officially received’ by the local
French plenipotentiary ‘with the French flag flying’.134 The Court
remarked:
Looking at the incident as a whole, it appears to have amounted to a tacit recognition by
Siam of the sovereignty of Cambodia (under French Protectorate) over Preah Vihear,
through a failure to react in any way, on an occasion that called for a reaction in order to
affirm of preserve title in the face of an obvious rival claim. What seems clear is that
either Siam did not in fact believe that she had any title—and this would be wholly
consistent with her attitude all along…—or else she decided not to assert it, which again
means she accepted the French claim, or accepted the frontier of Preah Vihear as it was
drawn on the map.135
In many situations acquiescence and express admissions are but part of
the evidence of sovereignty. Estoppel differs in that, if the conditions for
an estoppel are satisfied, it suffices to settle the issue. Resting on good
faith and the principle of consistency in state relations, estoppel may
involve holding a government to a declaration which in fact does not
correspond to its real intention, if the declaration is unequivocal and the
state to which it is made has relied on it to its detriment. Such a principle
must be used with caution, more particularly in dealing with territorial
issues.136 Thus the Court held that the declaration of the Acting State
Secretary that Johor did not possess sovereignty over Pedra Branca did
not give rise to an estoppel. The Court said:
(p. 235) [A] party relying on an estoppel must show, among
other things, that it has taken distinct acts in reliance on the
other party’s statement…The Court observes that Singapore did
not point to any such acts. To the contrary, it acknowledges in its
Reply that, aft er receiving the letter, it had no reason to change
its behaviour; the actions after 1953 to which it refers were a
continuation and development of the actions it had taken over
the previous century.137
By contrast, in cases such as Temple, where much of the evidence is
equivocal, acquiescence over a long period may be treated as decisive:
here it is not itself a root of title but an aid in the interpretation of the facts
and legal instruments.138 To be decisive acquiescence must rest on very
cogent evidence. Express recognition in a treaty of the existence of title
in the other party (as opposed to recognition by third states) is of course
conclusive.139
(C) ‘Negative Prescription’
Some writers seem to suggest that prescriptive title arises even without
acquiescence, simply by lapse of time and possession not disturbed by
measures of forcible self-help.140 A similar result is reached by
formulations which presume acquiescence under certain conditions.
Such views are not supported by the jurisprudence,141which sets an
exacting evidentiary standard for the displacement of confirmed title, a
standard which requires at least some evidence (tacit or express) of
acquiescence. They commonly antedate the period when forcible selfhelp and conquest were prohibited. It is probably the case now that
prescription cannot create rights out of situations brought about by illegal
acts.142 Finally, it must be remembered that in Island of
Palmas, Minquiers and Ecrehos and other like cases, the possession
upheld by the tribunal is adverse only in a special sense; there is no
deliberate usurpation with a sequel of adverse holding, but a more or less
contemporaneous competition.
(D) Historical Consolidation of Title: An Epitaph
Historical consolidation as a concept refers to an acquisition of title on the
basis of its use without challenge over a significant period of time. Its
origin is generally seen to lie in Anglo-Norwegian Fisheries; there, the
Court, having established that Norway had delimited the territorial sea by
a system of straight baselines since 1869, had to
References
(p. 236) decide whether, as against other states, it had title to waters so
delimited. The Court said:
[I]t is indeed this system itself [of straight baselines] which would reap the benefit of
general toleration, the basis of an historical consolidation which would make it
enforceable as against all States…The general toleration of foreign States with regard to
the Norwegian practice is an unchallenged fact. The notoriety of the facts, the general
toleration of the international community, Great Britain’s position in the North Sea, her
own interest in the question, and her prolonged abstention would in any case warrant
Norway’s enforcement of her system against the United Kingdom.143
The attitude of other states was taken as evidence of the legality of the
system, but there were certain special features. The extension of
sovereignty claimed was over a res communis and therefore the
toleration of foreign states in general was of significance. Moreover, the
Court appeared to regard British silence as an independent basis of
legality as against the UK.
De Visscher took the decision as an example of the ‘fundamental interest
of the stability of territorial situations from the point of view of order and
peace’, which ‘explains the place that consolidation by historic titles holds
in international law’:
This consolidation, which may have practical importance for
territories not yet finally organized under a State regime as well
as for certain stretches of sea-like bays, is not subject to the
conditions specifically required in other modes of acquiring
territory. Proven long use, which is its foundation, merely
represents a complex of interests and relations which in
themselves have the effect of attaching a territory or an expanse
of sea to a given State.144
Thus, ‘consolidation’ differs from prescription and occupation in de
Visscher’s doctrine. It is, moreover, certain that the elements which he
calls ‘consolidation’ are influential; the essence of the matter is peaceful
holding and acquiescence or toleration by other states.145 But the
concept of historical consolidation is not much more than a compendium
of pre-existing modes of acquisition. Certainly, as late as 1998 a
distinguished arbitral tribunal referred to the concept of consolidation of
title with approv-al.146 Nonetheless, the accepted view is that
consolidation does not exist as a concept independent of the established
rules governing effective occupation and prescription. In Cameroon v
Nigeria, the Court stated that ‘the theory of historical consolidation is
highly controversial and cannot replace the established modes of
acquisition of title under international law’.147
References
(p. 237) 5. Extent of Sovereignty: Territorial
Disputes148
We are here concerned with certain logical and equitable principles which
are not roots of title but are important in determining the actual extent of
sovereignty derived from some source of title such as a treaty of cession
or effective occupation.
(A) The Principle of Contiguity
Considerations of contiguity and geographical unity come to the fore
when the disputed territory is uninhabited, barren or uncharted. In relation
to islands contiguity is a relevant concept.149 Thus, in Land, Maritime and
Frontier Dispute, the Chamber held that the island of Meanguerita was a
dependency of the larger island of Meanguera, due to its small size, its
proximity, and the fact that the claimants to the dispute treated the two as
a single unit.150 But this is a presumption only: in Pulau Batu Puteh one
of three disputed features was held to belong to Singapore, a second
(and by inference a third) to Malaysia.151
The principles are simply a part of judicial reasoning, but have
significance in other respects. State activity as evidence of sovereignty
need not press uniformly on every part of territory. Associated with this is
the presumption of peripheral possession based on state activity, for
example, on the coast of a barren territory.152Lastly, in giving effect to
principles of geographical unity in Eastern Greenland,153 and thus
concluding that somewhat localized Danish activity gave title over the
whole of Greenland, the Permanent Court was not swayed the
significance of unity isolated from the context of effective occupation.
Writing of the decision, Lauterpacht remarked on ‘those principles of
finality, stability and effectiveness of international relations which have
characterized the work of the Court’.154 Contiguity may be in itself an
earnest of effectiveness.
In conclusion the ‘principle of contiguity’ is little more than a technique in
the application of the normal principles of effective occupation.155 In the
case of islands in
References
(p. 238) particular the notion of contiguity may be unhelpful. Huber
in Island of Palmas said that ‘the alleged principle itself is by its very
nature so uncertain and contested that even governments of the same
State have on different occasions maintained contradictory opinions as to
its soundness…’.156
(B) The Uti Possidetis Principle
Put simply, the concept of uti possidetis provides that states emerging
from the dissolution of a larger entity inherit as their borders those
administrative boundaries which were in place at the time of
independence. In Burkina Faso/Mali, the Chamber in applying the
principle to Africa said as follows:157
The essence of the principle lies in its primary aim of securing
respect for territorial boundaries at the moment when
independence is achieved. Such territorial boundaries might be
no more than delimitations between different administrative
divisions or colonies all subject to the same sovereign. In that
case, the application of the principle of uti possidetis resulted in
administrative boundaries being transformed into international
frontiers in the full sense of the term.
Though like many concepts in this chapter it has its origins in Roman
law,158 the modern application of the doctrine began in Latin America in
the nineteenth century, whereby the elites who had declared
independence from Spain adopted the administrative divisions imposed
by the Spanish as the borders of the new states that emerged in the
region.159 Thus by their practice the successor states agreed to apply, as
between themselves, and later in their disputes with Brazil, a principle for
the settlement of frontier disputes in an area in which terra
nullius (territory belonging to no state) by stipulation did not exist: the
independent republics regarded their titles as co-extensive with that of
the former Spanish empire. The principle involves implied agreement to
base territorial settlement on a rule of presumed possession by the
previous Spanish administrative unit in 1821, in Central America, or in
1810, in South America. Its use has persisted throughout the twentieth
century, and in a slightly different form it has
References
(p. 239) been adopted by governments and tribunals concerned with
boundaries in Asia160 and Africa.161 The principle was also applied in
relation to the appearance of new states on the territory of the former
Yugoslavia.162
The operation of uti possidetis does not always give satisfactory
solutions.163 The administrative boundaries are frequently ill-defined or
difficult to prove.164 Furthermore, the colonial boundaries on which the
future of contested regions now rely were often not drawn in the first
place with any degree of ethnic sensitivity, leading to the inclusion of
opposed groups within the same new state.165 Finally, the doctrine may
impede the recognition of new states due to the unwillingness of states to
acknowledge a desire for independence contrary to uti possedetis. In a
worst case scenario, this may result in an otherwise successful polity
being shackled to a ‘failed state’.166
No doubt the principle is not peremptory and the states concerned are
free to adopt other principles as the basis of a settlement.167 But the
general principle that pre-independence boundaries of former
administrative divisions subject to the same sovereign remain in being is
in accordance with good policy. Three arguments are generally posited
as justifying this conclusion:168 (a) the doctrine renders the division of a
state susceptible to only one outcome, preventing armed conflict over
territory; (b) a division based on administrative boundaries is as valid as
any other approach in principle, and far simpler in execution; and (c) uti
possidetis has achieved the status of a general principle or default rule of
international law.169
References
(p. 240) (C) Accretion170
Accretion concerns the process of increase of territory through new
geological formations. In the simple case, deposits on a sea coast may
result in an extension of sovereignty. A more dramatic example is
provided with the emergence of an island within the territorial sea of Iwo
Jima due to volcanic activity in 1986; this was subject to immediate
recognition by the UK government as part of the territory of Japan.171 In
such a case, ‘[n]o formal acts of appropriation are required’.172
(D) Hydraulic Boundaries
(i) Boundary rivers173
The principle of delimitation apparently established in the law is that of
the thalweg, presumed to mean the middle of the main navigable
channel. However, the term may have another meaning in particular
instruments and treaties, viz., the line of deepest soundings. The two
definitions will often coincide. But conditions prevailing, even within the
same river system, are very variable and the learning in the books tends
to be unhelpful in practice. Expertise is called for, particularly in relation to
the determination of the main channel among several arms of a river.174
Unlike purely terrestrial borders, boundary rivers may change their
course. This is not a true case of accretion. Thus, in relation to the
southern boundary of New Mexico, the solution of disputes between the
US and Mexico depended on principles of acquiescence and the
interpretation of agreements as to the outcome of natural changes.175 In
this type of case, even in the absence of applicable agreements, sudden,
forcible, and significant changes in river courses (avulsion) will not be
considered to have changed the frontier line:176 in other words, the
boundary will be fixed along the route of the former river bed, following
not the river but the land underneath. Accretion, the gradual and
imperceptible addition of sediments, can give rise to an extension of the
sovereignty of the co-riparian to areas already under
References
(p. 241) effective occupation177 on the basis of principles of contiguity
and certainty. The gradual nature of the process leads to a presumption
of occupation by the riparian state and one of acquiescence by other
states; thus the boundary will be held to move with the river.178
(ii) Boundary lakes
As to boundary lakes the principle of the median line applies, but as
usual express agreement or acquiescence may produce other modes of
division.
179
(E) The Polar Regions: The Sector Principle179
Particularly in the case of the Arctic, the question of rights over frozen
sea or ‘ice territory’ arises,180 but otherwise normal principles apply to
territory situated in polar regions. In the making of claims to ice deserts
and remote groups of islands, it is hardly surprising that governments
should seek to establish the limits of territorial sovereignty by means of
straight lines, and similar systems of delimitation may be found in other
regions, for example in North America. In the polar regions use has been
made of lines of longitude converging at the Poles to produce a sector of
sovereignty. While the ‘sector principle’ does not give title, it may
represent a reasonable application of the principles of effective
occupation as they are now understood, and as applied in Eastern
Greenland.181 It remains a rough method of delimitation, and has not
become a separate rule of law.
Confusion of claims has arisen primarily from the indecisive nature of
state activity in the polar regions. However, three reservations may be
made: the ‘sector principle’ has the defects of any doctrine based upon
contiguity; its application is a little absurd insofar as there is claim to a
narrow sliver of sovereignty stretching to the Pole; and, lastly, it cannot
apply so as to include areas of the high seas.
References
(p. 242) In the Arctic,182 Denmark, Finland, Norway, and the US have
refrained from sector claims linked to territories peripheral to the polar
seas. On the other hand Canada183 and the Russian Federation184 have
made use of the sector principle. It is probable that it is recognition by
treaty or otherwise which creates title in the Arctic rather than the sector
principle as such.185
Sector claims in Antarctica have been made by the UK,186 New Zealand,
Australia, France, Norway, Argentina, and Chile.187 The state practice
calls for brief comment. First, some claims are made which do not
depend on contiguity but on discovery. Secondly, claimants are not
confined to peripheral neighbours as in the Arctic. And thirdly,
recognition188 is obviously important in establishing title in an otherwise
fluid situation created by overlapping claims, many of which in law may
amount to little more than ambit claims or declarations of interest.
Overlaying all such claims, however, is the Antarctic Treaty189 which in
Article IV(2) prevents any additional claims to the continent being made
and signals non-recognition by third states of claims already made.
6. Territorial Sovereignty and Peremptory
Norms
The complex question of the effect of breaches of peremptory norms on
the validity of interstate transactions is considered in chapter 27. The
concern here is the effect of certain rules on the power of alienation.
(A) Transfer by an Aggressor
The modern law forbids conquest and regards a treaty of cession
imposed by force as a nullity, a logical extension of the prohibition on the
use of force contained in Article 2(4) of the UN Charter.190 Even if—and
this is open to considerable doubt—the
References
(p. 243) vice in title can be cured by recognition by third states, it is clear
that the loser is not precluded from challenging any title based upon a
transfer from the aggressor. It is the force of a powerful prohibition, the
stamp of illegality, which operates here rather than the principle nemo dat
quod non habet. In the event, the Charter era has been attended by far
less acquisition of territory by force than periods before it.191 This is
reflected in the terms of SC Resolution 242 (1967), which highlighted the
inadmissibility of the acquisition of territory by force, and more
emphatically, the Friendly Relations Declaration of 1970, which stipulates
that:
the territory of a state shall not be the object of acquisition by another state resulting from
the threat or use of force. No territorial acquisition resulting from the threat or use of
192
force shall be recognized as legal.
Exceptions could perhaps occur when there is a disposition of territory by
the principal powers or some other international procedure valid as
against states generally. So far in the modern period such dispositions
have not resulted in an aggressor keeping territory seized.
(B) The Principle of Self-Determination and Territorial
Transfers
Is there a rule of law inhibiting the transfer of territory if certain minimum
conditions of local consent are not fulfilled? Dispositions by the principal
powers, transfers under procedures prescribed by international
organizations, and bilateral cessions in the period since 1919 have been
expressed to be in accordance with the principle of self-determination.
The machinery of the plebiscite is sometimes applied,193 or affected
individuals may be given an option of nationality and/or repatriation.194
Some opinions support the view that transfers must satisfy the principle.
However, there is insufficient practice to warrant the view that a transfer
is invalid simply because there is no sufficient provision for expression of
opinion by the inhabitants.195 At present most claims are made in terms
which do not include a condition as to due consultation of the population
concerned. Those jurists who insist on the principle refer to exceptions, in
particular the existence of a collective decision of states representing (p.
244) the international community to impose measures on an
aggressor,196 and the principle of respect for pre-independence
administrative divisions following attainment of independence by former
colonies (uti possidetis).197 In any event the application of the principle
may be difficult in practice. In relation to the British–Argentine dispute
over the Malvinas/Falklands the relevant UN resolutions call for transfer
by virtue of a principle of decolonization while the UK regards transfer
without local consent as a breach of the principle of self-determination.198
References
Footnotes:
1
Jennings, The Acquisition of Territory in International
Law (1963); Fitzmaurice (1955–56) 32 BY 20; de Visscher, Les
Effectivités du droit international public (1967) 101; Blum, Historic Titles
in International Law (1965); Bardonnet (1976) 153
Hague Recueil 9; Kaikobad (1983) 54 BY 119; Shaw, Title to Territory in
Africa (1986); Thirlway (1995) 66 BY 10; Kohen, Possession contestée et
souveraineté territoriale (1997); Sharma, Territorial Acquisition, Disputes
and International Law (1997); Ratner (2006) 100 AJIL 808; Prescott &
Triggs, International Frontiers and Boundaries (2008); Shaw, The
International Law of Territory (2012). For acquisition of maritime territory
and zones see chapter 11; for maritime delimitation, chapter 12.
2
E.g. Eritrea-Ethiopia Boundary Delimitation (2002) 130 ILR 1; Simma &
Khan, in Ando, McWhinney & Wolfrum (eds), 2 Liber Amicorum Judge
Shigeru Oda (2002) 1179; Shaw (2007) 56 ICLQ 755; Kohen, in Kohen
(ed), Liber Amicorum Lucius Caflisch (2007) 767. Also, for
Sudan: Government of Sudan v Sudan People’s Liberation
Movement/Army (Abyei Arbitration) (2009) 144 ILR 348; Daly &
Schofield, ‘Abyei Arbitration’ (2010) MPEPIL; Bockenforde (2010)
23 LJIL 555.
3
In Minquiers and Ecrehos (France/UK), ICJ Reports 1953 p 47, the
parties and, to a lesser extent, the Court considered it necessary to
investigate legal transactions of the medieval period.
4
Fitzmaurice (1955–56) 32 BY 20, 64–6; Schwarzenberger (1957)
51 AJIL 308, 320–2; Castellino & Allen, Title to Territory in International
Law (2003); Kohen (2004) 108 RGDIP 562; Shaw (ed), Title to
Territory (2005); Ratner (2006) 100 AJIL 808. See also chapter 8. For
linguistic confusion over the term: O’Keefe (2011) 13 Int Comm LR 147,
153–4.
5
Thus the objection to British acquisition of the Boer Republics was
merely that it was premature, not that it was intrinsically unlawful: West
Rand Central Gold Mining Co v R [1905] 2 KB 391. For the development
of rules relating to the use of force see chapter 33.
6
7
On Gibraltar see Waibel, ‘Gibraltar’ (2009) MPEPIL.
ICJ Reports 1986 p 554, 586–7. The term uti possidetis (iuris) refers to
the presumption that the boundaries of a new state or entity follow those
that existed under the previous (usually colonial) regime. Further:
Lalonde, Determining Boundaries in a Conflicted World (2002); Castellino
& Allen (2003) ch 1.
8
That is, a system of municipal title registration whereby inclusion on the
register confers on the holder indefeasible title: see Black’s Law
Dictionary (9th edn, 2010) 1625. The civil law equivalent is a cadastre.
9
ICJ Reports 1953 p 47, 52. See also the special agreement in Island of
Palmas (1928) 2 RIAA 831, 869.
10
Also: Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports
1962 p 6, 72 (Judge Moreno Quintana).
11
Legal Status of Eastern Greenland (1933) PCIJ Ser A/B No 53.
Further: Alfredsson, ‘Eastern Greenland Case’ (2007) MPEPIL.
12
Cf Lauterpacht, Development (1958) 241. Also: Clipperton
Island (1931) 2 RIAA 1105.
13
Sovereignty over Certain Frontier Land (Belgium/Netherlands), ICJ
Reports 1959 p 209, 231 (Judge Lauterpacht), 232 (Judge Spiropoulos),
249–51 (Judge Armand-Ugon), where title resting on an ambiguous
treaty conflicted with various acts of administration.
14
Cf French rights as against Mexico in Clipperton; Danish rights as
against Norway in Eastern Greenland. See Beckett (1934) 50
Hague Recueil 189, 230, 254–5.
15
Island of Palmas (1928) 2 RIAA 831, 870.
16
Jennings (1963) 28; Fitzmaurice (1953) 30 BY 1, 5; Elias (1980)
74 AJIL 285; Thirlway (1995) 66 BY 128; Higgins, in Makarczyk
(ed), International Law at the Threshold of the 21st Century (1996) 173;
Kotzur, ‘Intertemporal Law’ (2008) MPEPIL.
17
Fitzmaurice (1953) 30 BY 1, 5 (emphasis added). See also
Fitzmaurice (1975) 56 Ann de l’Inst 536, Art 1 (‘Unless otherwise
indicated, the temporal sphere of application of any norm of public
international law shall be determined in accordance with the general
principle of law by which any fact, action or situation must be assessed in
light of the rules that are contemporaneous with it’).
18
Island of Palmas (1928) 2 RIAA 831, 845. Further: Jessup (1928)
22 AJIL 735; also Banks of Grisbadarna (1909) 11 RIAA 155, 159.
19
19
Rights of Nationals of the United States of America in Morocco
(France v US), ICJ Reports 1952 p 176, 189; Right of Passage over
Indian Territory (Portugal v India), ICJ Reports 1960 p 6, 37; also Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), ICJ Reports 1971 p 16, 31; Aegean Sea Continental Shelf
(Greece v Turkey), ICJ Reports 1978 p 3, 32.
20
E.g. Eritrea and Yemen (1998) 114 ILR 1, 46, 115; Eritrea-Ethiopia
Boundary (2002) 130 ILR 1, 34; Land and Maritime Boundary between
Cameroon and Nigeria, ICJ Reports 2002 p 303, 404–7.
21
Island of Palmas (1928) 2 RIAA 831, 845.
22
Lauterpacht, Function of Law (1933, repr 2011) 283–5. See Jessup
(1928) 22 AJIL 735, 739; Jennings (1963) 28; Jennings (1967) 121
Hague Recueil 422.
23
This form of the doctrine was applied sensibly in Minquiers and
Ecrehos, ICJ Reports 1953 p 47, 56; see also Western Sahara, ICJ
Reports 1975 p 12, 38; ibid, 168 (Judge de Castro).
24
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and
South Ledge (Malaysia/Singapore), ICJ Reports 2008 p 12.
25
Fitzmaurice (1955–56) 32 BY 20; Blum (1965) 208; Thirlway (1995)
66 BY 31. See also the Chamber in Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras), ICJ Reports 1992 p 351, 401. For the
problems arising in the context of treaties of cession and the rights of
successor states see Lighthouses (France and Greece) (1956) 23 ILR
659, 668.
26
See Jennings (1963) 31; Jennings (1967) 121 Hague Recueil 423.
27
Eastern Greenland (1933) PCIJ Ser A/B No 53, 45.
28
ICJ Reports 1953 p 47. France relied on the date of the Convention
between France and Great Britain for Defining the Limits of Exclusive
Fishing Rights, 2 August 1839, 89 CTS 221; the UK on the date of
the compromis (29 December 1950). See Johnson (1954) 3 ICLQ 189,
207–11. Critical dates did not feature in Temple, ICJ Reports 1962 p 6.
However, the Court treated two dates as material: 1904, the date of a
frontier treaty between France and Thailand, and 1954, when Thailand
sent military or police forces to occupy the area. See also Rann of
Kutch (1968) 50 ILR 2, 470.
29
(1966) 38 ILR 10, 79–80. Also: Eritrea and Yemen (1998) 114 ILR 1,
32; Sovereignty over Pulau Ligitan and Pulau Sipidan
(Indonesia/Malaysia), ICJ Reports 2002 p 625, 682; Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean
Sea, ICJ Reports 2007 p 659, 697–701.
30
Generally: Andrews (1978) 94 LQR 408.
31
E.g. Eastern Greenland (1933) PCIJ Ser A/B No 53, 44–51; Western
Sahara, ICJ Reports 1975 p 12, 38–40, 85–6 (Vice-President Ammoun).
32
Aside from some very small rocks and a small sector of Antarctica
(over which in any case no sovereignty may be claimed by virtue of the
Antarctic Treaty, 1 December 1959, 402 UNTS 71, Art IV). Also: Shaw, in
Shaw (2005) 3, 24; Ratner (2006) 100 AJIL 808, 811.
33
Western Sahara, ICJ Reports 1975 p 12, 86.
34
Ibid, 39–40. For the classification of Australia as terra nullius: Mabo v
Queensland (No 2) (1992) 112 ILR 457, 491–2. Generally on the 18th–
19th century practice: Crawford, Creation of States (2nd edn, 2006) 263–
74.
35
Castellino & Allen (2003) ch 2.
36
For criticism: Johnson (1955) 13 CLJ 215; Jennings (1963) 6–7.
37
Thus an ‘original’ mode does not necessarily give a title free of
encumbrances: Right of Passage, ICJ Reports 1960 p 6.
38
Jennings (1963) 7–11. Also: 1 Hyde 390; 1 Hackworth 444–5.
39
Crawford (2nd edn, 2006) 664–5; see further chapter 5.
40
The term ‘annexation’ is neither a term of art nor a root of title, but
describes an official state act signifying an extension of sovereignty.
Whether it is legally effective is another matter. See McNair,
1 Opinions 285, 289; 1 Hackworth 446–9.
41
42
Kaikobad (1983) 54 BY 119, 130–4.
42
Minquiers and Ecrehos, ICJ Reports 1953 p 47, 53–7, 74–9 (Judge
Basdevant); Rann of Kutch (1968) 50 ILR 2, 474; Western Sahara, ICJ
Reports 1975 p 12, 42–3; El Salvador/Honduras, ICJ Reports 1992 p
351, 564–5; Eritrea and Yemen (1998) 114 ILR 1, 37–45.
43
Waldock (1948) 25 BY 311; von der Heydte (1935)
29 AJIL 448; Fitzmaurice (1955–56) 32 BY 20, 49–71; Shaw, in Shaw
(2005) xi.
44
(1933) PCIJ Ser A/B No 53, 45–6, 63; Western Sahara, ICJ Reports
1975 p 6, 12, 42–3. These criteria were applied in Caribbean Sea, ICJ
Reports 2007 p 659, 711–21.
45
(1998) 114 ILR 1, 69.
46
Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports 1999 p 1045,
1105–6.
47
E.g. Eastern Greenland (1933) PCIJ Ser A/B No 53, 45–6; Maritime
Delimitation and Territorial Questions between Qatar and Bahrain, ICJ
Reports 2001 p 40, 100 (and see Kohen (2002) 106 RGDIP 295); Pulau
Ligitan/Sipadan, ICJ Reports 2002 p 625, 682; Pulau Batu Puteh, ICJ
Reports 2008 p 12, 34–7.
48
E.g. Pulau Batu Puteh, ICJ Reports 2008 p 12.
49
Beckett (1934) 50 Hague Recueil 218, 220. Eastern Greenland (1933)
PCIJ Ser A/B No 53 is commonly thought to have been decided on the
basis that the area concerned was terra nullius at the critical date, but
this is a misreading: de Visscher (1967) 105. The Belize Supreme Court
held that Britain gained sovereignty over Belize ‘by a combination of the
various treaties with Spain and later with Guatemala, first acquired
interests in British Honduras and by effective occupation and
administration together with the passage of time’: Cal v Attorney
General (2007) 46 ILM 1022, 1038.
50
Minquiers and Ecrehos, ICJ Reports 1953 p 47, 55–7.
51
Ibid, 58–9.
52
Ibid, 67. Cf Eastern Greenland (1933) PCIJ Ser A/B No 53, 22, 46.
53
53
See 1 Hyde 312–30; Lindley (1926) ch 8; von der Heydte (1935)
29 AJIL 448; Goebel, The Struggle for the Falkland Islands (1927) 47–
119; Waldock (1948) 25 BY 311, 322–5; McDougal, Lasswell, Vlasic &
Smith (1963) 111 U Penn LR 521, 543–4, 558–60, 598–611; McDougal,
Lasswell & Vlasic, Law and Public Order in Space (1963) 829–44; Kohen
& Hébié, ‘Territory, Discovery’ (2011) MPEPIL.
54
Hall, International Law (1880) 126.
55
In the 16th century Roman law relating to acquisition by finding was
applied, and this emphasized actual taking. Contemporary state practice
usually demanded a first taking followed by public and continuous
possession evidenced by state activity. See the instructions of Charles V
of Spain to his ambassador of 18 December 1523 respecting the Spanish
claim to the Moluccas: Goebel (1927) 96–7; 1 Hyde 324. Keller, Lissitzyn
& Mann argue that whereas mere discovery could not give a valid title,
symbolic acts of taking of possession could do so: Creation of Rights of
Sovereignty through Symbolic Acts, 1400–1800 (1938) 148–9.
56
Hall (1880) 127; McNair, 1 Opinions 285.
57
See also Clipperton Island (1931) 2 RIAA 1105, in which Mexico relied
unsuccessfully on alleged discovery by Spain.
58
McNair, 1 Opinions 285, 287, 320; 1 Hackworth 455.
59
1 Hackworth 400, 453, 469, 459 (French view on Adélie Land); Orent
& Reinsch (1941) 35 AJIL 443; cf 1 Hyde 325 (Portuguese view in 1782).
60
1 Hackworth 398–400, 457, 460.
61
McDougal, Lasswell, Vlasic & Smith (1963) 111 U Penn LR 521, 543–
4, 558–60, 598–611; McDougal, Lasswell, Vlasic & Smith, Law and
Public Order in Space (1963) 829–44; 1 Hackworth 398–9; Waldock
(1948) 25 BY 311, 323–5; McNair, 1 Opinions 314ff; Marston (1986)
57 BY 337.
62
The term ‘annexation’ is neither a term of art nor a root of title. The
term commonly describes an official state act signifying an extension of
sovereignty. Whether it is legally effective is another matter. See McNair,
1 Opinions 285, 289; 1 Hackworth 446–9.
63
63
See Waldock (1950) 36 GST 325. Cf Fitzmaurice (1955–6) 32 BY 20,
65.
64
On the establishment of British sovereignty over Rockall in 1955:
Verzijl, 3 International Law in Historical Perspective (1968) 351.
65
(1931) 2 RIAA 1105, 1110.
66
E.g. Island of Palmas (1928) 2 RIAA 831, 839.
67
See Hall, International Law (8th edn, 1924) 125. Also: McNair,
1 Opinions 291, 315–16; 1 Hyde 342.
68
Cf Eritrea-Ethiopia Boundary (2002) 130 ILR 1, 42.
69
Island of Palmas (1928) 2 RIAA 829, 870–1.
70
(1933) PCIJ Ser A/B No 53, 63.
71
See Shaw, in Shaw (2005) xi, xxiii–xxiv.
72
See von der Heydte (1935) 29 AJIL 448, 462ff; 3 Rousseau, 169.
73
ICJ Reports 1953 p 47, 65–6. On acts relating to the Minquiers see
ibid, 67–70.
74
Minquiers and Ecrehos, ICJ Reports 1953 p 47. Further: Frontier
Dispute (Belgium/Netherlands), ICJ
Reports 1959 p 209, 228–9, 231–2, 248–50, 251, 255; Temple, ICJ
Reports 1962 p 6, 12, 29–30, 59–60, 72, 91–6; Pulau Ligitan/Sipidan, ICJ
Reports 2002 p 625, 678–86.
75
McNair, 1 Opinions 295, 314, 316–19, 323–5. Also: Orent & Reinsch
(1941) 35 AJIL 443, 450–4; Shaw, in Shaw (2005) xi, xxiii.
76
E.g. Qatar v Bahrain, ICJ Reports 2001 p 40, 99–100 (digging of
artesian wells not reflective of sovereignty); Pulau Ligitan/Sipadan, ICJ
Reports 2002 p 625, 683 (illegal fishing not evidence of sovereign
conduct). See also the Court’s treatment of the persistent presence of
indigenous peoples in the contested territory in Kasikili/Sedudu Island,
ICJ Reports 1999 p 1045.
77
Cf Fitzmaurice (1955–56) 32 BY 20, 55–8; Clipperton Island (1931) 2
RIAA 1105, 1110.
78
78
See Eastern Greenland (1933) PCIJ Ser A/B No 53, 83 (Judge
Anzilotti, diss). See also Frontier Dispute (Belgium/Netherlands), ICJ
Reports 1959 p 209, 255 (Judge Moreno Quintana, diss).
79
Ross, International Law (1947) 147.
80
Cf Eastern Greenland (1933) PCIJ Ser A/B No 53, 45–6.
81
Fitzmaurice (1955–56) 32 BY 20, 56–8.
82
The term ‘cession’ is used to cover a variety of transactions:
cf Différends Sociétés Dufay et Gigandet (1962) 16 RIAA 197, 208–12.
Also: Christian v R [2006] UKPC 47, §11. See generally Dörr, ‘Cession’
(2006) MPEPIL. On the possibility of cession by the people of a territory
(Malta) see Sammut v Strickland [1938] AC 678.
83
San Lorenzo Title & Improvement Cov City Mortgage Co(1932) 6 ILR
113, 116; Franco-EthiopianRailway Co(1957) 24 ILR 602, 616,
623; Christian vR [2006] UKPC 47, §11. Cf Certain German Interests
inPolishUpper Silesia (1926) PCIJ Ser A No 7, 30; Lighthouses in Crete
and Samos (1937) PCIJ Ser A/B No 71, 103.
84
Some cases of transfer may be better classified as
renunciation: Sorkis v Amed (1950) 17 ILR 103, although the term
cession is sometimes used: German Reparations (1924) 1 RIAA 429,
443; Banin v Laviani and Ellena (1949) 16 ILR 160; Différends Sociétés
Dufay et Gigandet (1962) 16 RIAA 197, 208–12. In the Treaty on the
Final Settlement with Respect to Germany, 12 September 1990, 1696
UNTS 115, Germany confirmed its border with Poland and other territorial
changes.
85
Date of Entry into Force of Versailles Treaty (1961) 32 ILR 339; N
Masthan Sahib v Chief Commissioner (1976) 49 ILR 484; and see Treaty
of Cession relating to the Kuria Muria Islands, 15 November 1967, 617
UNTS 319.
86
Territorial Dispute (Libya/Chad), ICJ Reports 1994 p 6, 25. Further:
VCLT, 22 May 1969, 1155 UNTS 331, Art 14.
87
88
E.g. Island of Palmas (1928) 2 RIAA 829, 842.
Consequently disputes as to title may involve the interpretation of a
treaty and nothing more: e.g. Beagle Channel (1977) 52 ILR 93.
89
89
See McNair, Law of Treaties (1961) 656–7; McNair,
1 Opinions 287; Frontier Dispute (Belgium/ Netherlands), ICJ Reports
1959 p 209, 226, 231, 256; Temple, ICJ Reports 1962 p 6, 16, 52, 67,
73–4, 102–3.
90
Territorial and Maritime Dispute (Nicaragua v Colombia), Preliminary
Objections, ICJ Reports 2007 p 832, 861; Libya/Chad, ICJ Reports 1994
p 6, 37.
91
Generally: Crawford (2nd edn, 2006) ch 6; Alfredsson, ‘Indigenous
Peoples, Treaties with’ (2007) MPEPIL. See also UN Declaration on the
Rights of Indigenous Peoples, GA Res 61/295, 13 September 2007, Art
37.
92
Generally: Pakenham, The Scramble for Africa (1991);
Anghie, Imperialism, Sovereignty and the Making of International
Law (2005).
93
The Court estimated that during the later 19th century, some 350
treaties were concluded between Great Britain and the local chieftains of
the Niger Delta: Cameroon v Nigeria, ICJ Reports 2002 p 303, 404. Also:
Castellino & Allen (2003) ch 4.
94
Island of Palmas (1928) 2 RIAA 829, 858.
95
Western Sahara, ICJ Reports 1975 p 12, 39; 123–4 (Judge Dillard).
But cf Cameroon v Nigeria, ICJ Reports 2002 p 303, 405, referring in
passing to ‘treaties for cession of land’.
96
10 September 1884, 163 CTS 182.
97
Cameroon v Nigeria, ICJ Reports 2002 p 303, 404–7.
98
Ibid, 407.
99
E.g. Treaty of St Germain-en-Laye, 10 September 1919, 226 CTS 8,
Arts 36, 43, 46–7, 53–4, 59; South Africa-Namibia, Treaty with Respect to
Walvis Bay and the Offshore Islands, 28 February 1994, 33 ILM 1256, Art
2. Also: German Reparations (1924) 1 RIAA 429, 442.
100
Treaty of St Germain-en-Laye, Arts 89–91; Lighthouses (France and
Greece) (1956) 23 ILR 659, 663–6. On Italian renunciation of all right and
title to territories in Africa see the Treaty of Peace, 10 February 1947, 49
UNTS 3, Art 23; Banin v Laviani and Ellena (1949) 16 ILR 73; Sorkis v
Amed (1950) 17 ILR 101; Farrugia v Nuova Comp Gen Autolinee (1951)
18 ILR 77; Cernograz and Zudich v INPS (1978) 77 ILR 627; Différends
Sociétés Dufay et Gigandet (1962) 16 RIAA 197, 208–12. Also: Treaty of
Peace with Japan, 8 September 1951, 136 UNTS 45, Art 2. For the
former German eastern territories: Treaty on the Final Settlement with
Respect to Germany, 12 September 1990, 1696 UNTS 115, Art 1.
101
Rann of Kutch (1968) 17 RIAA 1, 531–53, 567–70.
102
Franco-Ethiopian Railway Co (1957) 24 ILR 602, 605.
103
3 Rousseau 186; 1 Guggenheim 442; Shaw, in Shaw (2005) xi, xvii.
Also: Minquiers and Ecrehos, ICJ Reports 1953 p 47, 56; Brazil-British
Guiana Boundary (1904) 11 RIAA 22; further Kaikobad, Interpretation and
Revision of International Boundary Decisions (2007) 3–14.
104
At any rate, before execution of the award the successful claimant
cannot simply seize the territory: UN Charter, Art 94(2); Mosler & OellersFrahm, in Simma (ed), 2 The Charter of the United Nations (2nd edn,
2002) 1174.
105
3 Rousseau 186.
106
Generally: 2 Whiteman 1062–84; Fitzmaurice (1953) 30 BY 1, 27–
43; Fitzmaurice (1955–56) 32 BY 20, 31–7; Jennings (1963) 20–3; Blum
(1965) 6–37; Thirlway (1995) 66 BY 1, 12–14; Lesaffer (2005)
16 EJIL 25; O’Keefe (2011) 13 Int Comm LR 147; Wouters & Verhoeven,
‘Prescription’ (2008) MPEPIL.
107
In particular cases the distinction may wear thin: O’Keefe (2011)
13 Int Comm LR 147, 179–80.
108
See Judges Simma and Abraham (diss) in Pulau Batu Puteh, ICJ
Reports 2008 p 12, 121: ‘In fact, it is not of great importance that…the
Court should use this or that legal category or characterization, as those
categories, it must be acknowledged, are often not hermetically
separated from one another.’
109
Island of Palmas (1928) 2 RIAA 829, 840; Frontier Dispute (Burkina
Faso/Mali), ICJ Reports 1986 p 554, 587; El Salvador/Honduras, ICJ
Reports 1992 p 351, 398, 429; Kasikili/Sedudu Island, ICJ Reports 1999
p 1045, 1094–5. Also: the dictum in Argentine-Chile Frontier (1966) 16
RIAA 109, 173, emphasizing the relevance of effective administration.
110
Examples of references to Island of Palmas as an instance of
prescription: Beckett (1934) 50 Hague Recueil 220, 230; Johnson (1950)
27 BY 342, 348. Other cases misleadingly classified in this way include
the Brazil-British Guiana Boundary (1904) 11 RIAA
21; Grisbadarna (1909) 11 RIAA 155; Guatemala-Honduras
Boundary (1933) 2 RIAA 1322.
111
Lauterpacht, Private Law Sources and Analogies of International
Law (1927) 91; Lesaffer (2005) 16 EJIL 25; Kohen (1997) 10–48.
112
O’Keefe (2011) 13 Int Comm LR 147, 176–88.
113
Johnson (1950) 27 BY 343.
114
See Schwarzenberger (1957) 51 AJIL 308, 324 (‘it appears that the
practice of international courts and tribunals fits easily into a pattern
which dispenses completely with analogies from private law. It then
emerges that titles to territory are governed primarily by the rules
underlying the principles of sovereignty, recognition, consent and good
faith’).
115
E.g. Kasikili/Sedudu Island, ICJ Reports 1999 p 1045, 1103–4; Pulau
Batu Puteh, ICJ Reports 2008 p 12, 122 (Judges Simma and Abraham,
diss).
116
(1950) 27 BY 347.
117
Field, Outlines of an International Code (1872) §52 (50 years). The
50-year period specified in Art IV(a) of the arbitration treaty relative to the
British Guiana–Venezuela boundary represents an ad hoc rule of thumb:
2 February 1897, 89 BFSP 57; British Guiana-Venezuela
Boundary (1899) 28 RIAA 331, 333–7. In Frontier Dispute
(Belgium/Netherlands), an important factual aspect was that Belgium had
not challenged the Netherlands’ exercise of effective administration over
the territory in question for at least 50 years: ICJ Reports 1959 p 209,
231 (Judge Lauterpacht).
118
119
Johnson (1950) 27 BY 347, 354; 1 Hyde 388–9.
119
1 Hyde 392–4; McNair, 1 Opinions 299–305; Moore, 1 Digest 300;
Beckett (1934) 50 Hague Recueil 189, 252–5; 1 Hackworth 442–
3; Fitzmaurice (1955–56) 32 BY 20, 67; Jennings (1963) 36–
40; Kaikobad (1983) 54 BY 119; Marston (1986) 57 BY 337; Marques
Antunes & Bradley, Estoppel, Acquiescence and Recognition in Territorial
and Boundary Dispute Settlement (2000); O’Keefe (2011) 13 Int Comm
LR 147, 147; Kohen, ‘Abandonment’ (2008) MPEPIL.
120
Island of Palmas (1928) 2 RIAA 828, 838–9, 846.
121
Eastern Greenland (1933) PCIL Ser A/B No 53, 73. The better view
is that the facts disclosed an agreement rather than a unilateral act,
the quid pro quo being Danish recognition of Norwegian sovereignty over
Svalbard (Spitzbergen). On unilateral acts generally see chapter 18.
122
ICJ Reports 2008 p 12, 81. Although there is a distinction between
sovereignty and ‘ownership’, the Court took them here to be
synonymous: ibid, 80.
123
Thus mere protest will be sufficient to prevent the conclusion that title
has been abandoned: e.g. Chamizal (1911) 11 RIAA 309.
124
Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/US), ICJ Reports 1984 p 246, 305.
125
Pulau Batu Puteh, ICJ Reports 2008 p 12, 50–1.
126
Tribunals for many years avoided pronouncing on
whether derelictio was even possible, preferring instead to find the claim
was not made out on the facts: e.g. Chamizal (1911) 11 RIAA 309, 328
(displacement of extant title ‘very controversial’); Frontier Dispute
(Belgium/Netherlands), ICJ Reports 1959 p 207, 227–31; Kasikili/Sedudu
Island, ICJ Reports 1999 p 1045, 1105. See also O’Keefe (2011) 13 Int
Comm LR 147, 158–62.
127
ICJ Reports 1986 p 554, 586–7. See also Island of Palmas (1928) 2
RIAA 829, 867; Argentine-Chile Frontier (1966) 16 RIAA 109, 173; Eritrea
and Yemen (1998) 114 ILR 1, 51.
128
129
(1931) 2 RIAA 1105, 1110–11.
Eastern Greenland (1933) PCIJ Ser A/B No 53, 46. The Court then
went on to say that ‘As regards voluntary abandonment, there is nothing
to show any definite renunciation on the part of the Kings of Norway or
Denmark’ (ibid, 47).
130
It did, however, collect taxation from the area: Cameroon v Nigeria,
ICJ Reports 2002 p 303, 415–16.
131
ICJ Reports 2008 p 12, 50–1.
132
See Bowett (1957) 33 BY 176; MacGibbon (1958) 7 ICLQ 468, 5069;
Martin, L’Estoppel en droit international public (1979); Thirlway (1989)
60 BY 29; Sinclair, in Lowe & Fitzmaurice, Fifty Years of the International
Court of Justice (1996) 104. Generally see chapter 18.
133
See Fitzmaurice (1955–56) 32 BY 20, 60–2; Bowett (1957)
33 BY 176, 196–7.
134
Temple, ICJ Reports 1962 p 6, 30.
135
Ibid, 30–1.
136
See Bowett (1957) 33 BY 176, 197–201, 202; and Temple, ICJ
Reports 1962 p 6, 142–6 (Judge Spender, diss). In his view, on the facts,
the elements of estoppel were not present in any case. For
criticism: Chan (2004) 3 Chin JIL 555; Buss (2010) 9 Chin JIL 111. The
dispute has returned to the Court, under the guise of a request for
interpretation under Art 60 of the Statute: Request for Interpretation of the
Judgment of 15June 1962 in the Case Concerning the Temple of Preah
Vihear (Cambodia v Thailand) (Cambodia v Thailand) (2011, pending).
137
Pulau Batu Puteh, ICJ Reports 2008 p 12, 81.
138
Jennings (1963) 51.
139
See McNair, Treaties (1961) 487, referring to Eastern
Greenland (1933) PCIJ Ser A/B No 53, 68–9. McNair takes a less strict
view of estoppel than Bowett (1957) 33 BY 197, 202.
140
See Moore, 1 Digest 293–5 (ambiguous and diverse dicta of
publicists collected); 1 Hyde 386, 387 (stressing the element of
acquiescence); 1 Guggenheim 442.
141
Cameroon v Nigeria, ICJ Reports 2002 p 303, 346; Pulau Batu
Puteh, ICJ Reports 2008 p 12, 120 (Judges Simma and Abraham, diss).
142
143
Lauterpacht (1950) 27 BY 367, 397–8.
143
ICJ Reports 1951 p 116, 130, 138–9.
144
De Visscher, Theory and Reality in Public International Law (4th edn,
1970) 226.
145
Schwarzenberger (1957) 51 AJIL 308, 316–24.
146
Eritrea and Yemen (1998) 114 ILR 1, 117.
147
Cameroon v Nigeria, ICJ Reports 2002 p 303, 352.
148
1 Hyde 331–6; von der Heydte (1935) 29 AJIL 448, 463–71; Waldock
(1948) 25 BY 311, 339ff; Lauterpacht (1950) 27 BY 376, 423–
31; Fitzmaurice (1955–56) 32 BY 20, 72–5; Kelsen, Wehberg
Festschrift (1956) 200–11; McNair, 1 Opinions 287–8, 292; 3 Rousseau,
193–203; Sharma (1997); Ratner (2006) 100 AJIL 808; Prescott & Triggs
(2008).
149
See further Sharma (1997) 51–61.
150
ICJ Reports 1992 p 351, 570.
151
ICJ Reports 2008 p 12, 95–6 (Pedra Branca (Pulau Bata Puteh)), 99
(Middle Rocks), 100–1 (South Ledge).
152
Brazil-British Guiana Boundary (1904) 11 RIAA 21. See also Island of
Palmas (1928) 2 RIAA 855; Minquiers and Ecrehos, ICJ Reports 1953 p
47, 99; Jennings (1963) 74–6.
153
(1933) PCIJ Ser A/B No 53, 45–52; also Western Sahara, ICJ
Reports 1975 p 12, 42–3.
154
Lauterpacht, Development (1958) 241.
155
For a different opinion: 1 Guggenheim, 440–1. Also: 2 Whiteman
1104–8.
156
Island of Palmas (1928) 2 RIAA 854. Other disputes involving
arguments based on contiguity: Bulama Island (1870), Moore, 2 Int
Arb 1909; Lobos Islands (1852), Moore, 1 Digest 265–6, 575; Navassa
Island (1872), Moore, 1 Digest 266–7; Aves Island (1865), Moore, 5 Int
Arb 5037 (Spanish report). Further: 1 Hyde 343–6; McNair,
1 Opinions 315.
157
157
Burkina Faso/Mali, ICJ Reports 1986 p 554, 566; see also El
Salvador/Honduras, ICJ Reports 1992 p 351, 386–8 (‘uti possidetis
juris is essentially a retrospective principle, investing as international
boundaries administrative limits intended originally for another purpose’).
Further: Shaw (1993) 42 ICLQ 929; Lalonde, Determining Boundaries in
a Conflicted World (2002); Abi-Saab, in Kohen (2007) 657.
158
In litigation over contested property, the praetor would issue an edict
granting provisional title to the party already in possession of the land,
unless he had come about it through trickery, violence or in some form
revocable by the other party, hence the maxim ‘as you possess, so you
may possess’ (uti possidetis, ita possidetis): Ratner (1996) 90 AJIL 590,
593; Castellino & Allen (2003) 8–11.
159
Further: Ratner (1996) 90 AJIL 590, 593–5; Shaw (1996) 67 BY 75,
98–100; Castellino & Allen (2003) ch 3.
160
See Temple, ICJ Reports 1962 p 6; Rann of Kutch (1968) 50 ILR 2.
Cf Eritrea and Yemen (1998) 114 ILR 1, 32–4.
161
OAU Resolution on Border Disputes, AHG/Res 16(I), 21 July
1964; Touval (1967) 21 Int Org 102; Burkina Faso/Mali, ICJ Reports 1986
p 554, 565–8, 586–7; Guinea-Guinea (Bissau) Maritime
Delimitation (1985) 77 ILR 636, 657; Guinea (Bissau)-Senegal
Delimitation (1989) 83 ILR 1, 22; 56–85 (Bedjaoui, diss).
Also: Libya/Chad, ICJ Reports 1994 p 6, 83–92 (Judge ad hoc Ajibola).
162
Badinter Commission, Opinion No 2 (1992) 92 ILR 167; Opinion No
3 (1992) 92 ILR 170; Craven (1995) 66 BY 333, 385–90.
163
Ratner identifies two central complaints: (1) its inherent simplicity
gives rise to the temptation on the part of ethnic separatists to further
divide territory along existing boundaries; (2) application of the principle
to modern state collapses may lead to significant populations both
unsatisfied with their status in the new state and uncertain of their
political participation there; see Ratner (1996) 90 AJIL 590.
164
See Guatemala-Honduras Boundary (1933) 2 RIAA 1322. For
comment: Fisher (1933) 27 AJIL 403. Cf Waldock (1948) 25 BY 325.
Also: El Salvador/Honduras, ICJ Reports 1992 p 351, 386–95; Frontier
Dispute (Benin/Niger), ICJ Reports 2005 p 90, 108–10, 133–
49; Caribbean Sea, ICJ Reports 2007 p 659, 727–9.
165
Further: Luker (2008) 158–61.
166
On Somaliland: see Poore (2009) 45 Stanford JIL 117; Crawford (2nd
edn, 2006) 412–18.
167
Opinion No 2 (1992) 92 ILR 167, 168.
168
Ratner (1996) 90 AJIL 590, 591.
169
Further: Burkina Faso/Mali, ICJ Reports 1986 p 554, 565:
‘Nevertheless [uti possidetis] is not a special rule which pertains solely to
one specific system of international law. It is a general principle, which is
logically connected with the phenomenon of obtaining independence,
wherever it occurs. Its obvious purpose is to prevent the independence
and stability of new states being endangered by fratricidal struggles.’
Also: Badinter Commission, Opinion No 3 (1992) 92 ILR 170, 171–2.
Some scholars have come to attribute to it the status of customary
international law: Ratner (2006) 100 AJIL 808, 811.
170
See 1 Hackworth 409–21; 1 Hyde 355; Island of Palmas (1928) 2
RIAA 829, 839; Kanska & Manko (2002–3) 26 Pol YIL 135.
171
UKMIL (1986) 57 BY 487, 563.
172
1 Hyde 355–6.
173
See E Lauterpacht (1960) 9 ICLQ 208; Bouchez (1963) 12 ICLQ 789;
McEwen, International Boundaries of East Africa (1971) 76–96;
Kaikobad, The Shatt-al-arab Boundary Question (1988); Bardonnet
(1976) 153 Hague Recueil 9, 83–95; Schroeter (1992) 38 AFDI 948.
Also: the dispute related to the boundary river San Juan between
Nicaragua and Costa Rica, Certain Activities carried out by Nicaragua in
the Border Area (Costa Rica v Nicaragua), Order of 8 March 2011.
174
See Argentine-Chile Frontier (1966) 38 ILR 10, 93; Kasikili/Sedudu
Island, ICJ Reports 1999 p 1045, 1060–74; Eritrea-Ethiopia
Boundary (2002) 130 ILR 1, 116; Benin/Niger, ICJ Reports 2005 p 90,
149–50.
175
175
See Chamizal (1911) 11 RIAA 309, 316; San Lorenzo (1932) 6 ILR
113. Also: Chamizal Convention, 28 August 1963, 505 UNTS 185.
176
Nebraska v Iowa, 143 US 359 (1892); Kansas v Missouri, 322 US
213 (1943); Georgia v South Carolina, 497 US 376 (1991); El
Salvador/Honduras, ICJ Reports 1992 p 351, 546; cf Chamizal (1911) 11
RIAA 309.
177
See Island of Palmas (1928) 2 RIAA 839.
178
El Salvador/Honduras, ICJ Reports 1992 p 351, 546. Also: Arkansas
v Tennessee, 246 US 158 (1918); Louisiana v Mississippi, 282 US 458
(1940); Georgia v South Carolina, 497 US 376 (1991).
179
On the Antarctic: 1 Hackworth 399–400, 449–76; Waldock (1948)
25 BY 311; Auburn (1970) 19 ICLQ 229; Watts, International Law and the
Antarctic Treaty System (1992); Kaye, in Oude Elferink & Rothwell
(eds), The Law of the Sea and Polar Maritime Delimitation and
Jurisdiction(2001) 157. On the Arctic: Lakhtine (1930) 24 AJIL 703; 1
Hyde 349–50; Head (1963) 9 McGill LJ 200. Further: Smedal, Acquisition
of Sovereignty over Polar Areas (1931); 2 Whiteman 1051–61; 3
Rousseau, 203–30; Scovazzi, in Oude Elferink & Rothwell (2001)
69; Churchill, ibid, 105; Timchencko, ibid, 269; Scott, (2009) 20 Ybk
IEL 3. Generally: Rothwell, The Polar Regions and the Development of
International Law (1996).
180
Some writers take the view that permanently frozen ice shelves are
susceptible to effective occupation. See Waldock (1948) 25 BY 311, 317–
18; Fitzmaurice (1957) 92 Hague Recueil 1, 155. The USSR was
particularly fond of such claims: for state practice see Lakhtine (1930)
24 AJIL 703; 1 Hackworth 449–52; 2 Whiteman 1266–7. On the status of
ice in international law, see further Joyner (1991) 31 NRJ 213; Joyner
(2001) 23. In the Antarctic context, see the New Zealand claim over the
Ross Dependency, part of which includes a claim over the Ross ice shelf:
Rothwell (1996) 55, Fig 3. Also: Richardson (1957) 33 NZLJ 38;
Auburn, The Ross Dependency (1972).
181
182
See Wall (1947) 1 ILQ 54.
Head (1963) 9 McGill LJ 200; Rothwell (1996) 4–6, 166–73; also
288–91 (on the ‘Arctic lake’ theory). See also Scovazzi (2001) 69.
183
183
No precise declaration was made, but see 1 Hackworth 463; 2
Whiteman 1267. For the Canadian declaration that the sector principle
does not apply to the Arctic: (1970) 9 ILM 607, 613.
184
Decree of 15 April 1926; 1 Hackworth 461.
185
1 Hackworth 463–8; 2 Whiteman 1268. Also: Rothwell (1996) 59–63.
186
The first sector claim in the area was by Letters Patent in 1917
defining the Falkland Islands Dependencies. Further: Rothwell (1996) 54.
187
For the various claims: ibid, 51–8.
188
Thus the Norwegian proclamation of 1939 was accompanied by a
minute of the Ministry of Foreign Affairs which recognized the British,
New Zealand, Australian, and French claims: ibid, 57–8. Norway does
not accept the sector principle as such.
189
1 December 1959, 402 UNTS 72.
190
Also: Arts 3 and 4 of the Helsinki Final Act, 1 August 1975, 14 ILM
1292.
191
Zacher (2001) 55 Int Org 215, 223–4; Ratner (2006) 100 AJIL 808,
811.
192
GA Res 2625(XXV), 24 October 1970. See also SC Res 662 (1990)
§1, declaring that the Iraqi annexation of Kuwait ‘under any form and
whatever pretext has no legal validity and is considered null and void’.
Further: VCLT, Art 52 (treaty procured through use or threat of force is
void ab initio).
193
1 Hyde 364–5, 372; 2 Whiteman 1168–72. This most recently
occurred in the cases of East Timor and South Sudan.
194
E.g. India–Bangladesh, Agreement Concerning the Demarcation of
the Land Boundary between India and Bangladesh and Related Matters,
16 May 1974, available at www.hcidhaka.org/agreement_india_bd.php,
Art 3 as enacted by the Protocol of 6 September
2011, www.mea.gov.in/mystart.php?id=500418206.
195
196
Ratner (2006) 100 AJIL 808, 811.
Cf the debate over the Oder-Neisse frontier established by the
Potsdam Declaration (1945) 39 AJIL Supp 245; Brownlie, Use of
Force (1963) 409.
197
See Burkina Faso/Mali, ICJ Reports 1986 p 554, 566–7; ibid, 652–3
(Judge ad hoc Luchaire).
198
See UKMIL (1985) 56 BY 402–6, 473–4. Also: Reisman (1983)
93 Yale LJ 287; Crawford (2nd edn, 2006) 637–47. On Kosovo: e.g.
Corten, in Cot (ed), Liber Amicorum Jean-Pierre Cot, le procès
international (2009) 30.
(p. 245) 10 Status of Territory: Further Problems
1. International Procedures of Territorial
Disposition1
A basic assumption of the international system is that sovereignty—
plenary power over territory—inheres individually in each state which has
the better claim to title over that territory, and that it is not shared. But this
is an assumption; from a legal point of view it may even be a
presumption: it is not a rule, still less a peremptory norm. There is nothing
to prevent a state from freely abandoning its sovereignty in favour of
merger in another state, and what can be done in whole can be done in
part. Groups of states, or an international organization, can come to
exercise dispositive authority over a given territory: questions may then
arise as to the modalities of the exercise of such powers and their
relation to the self-determination of the people of the territory concerned.
Some of these situations are grouped for consideration here.
(A) Agreement between the States Concerned
A cession of territory may depend on the political decision of the states
concerned in a dispute. Such a cession may be the result of a political
claim, on grounds of history or security, a legal claim, or a combination of
these. The conditions under which transfer occurs may be influenced by
the recommendations of political organs of international organizations
and, latterly, by the principle of self-determination (see chapters 5, 29).
On numerous occasions, plebiscites have been organized under the
auspices of the United Nations, with the results treated as indicative or
binding.2
(p. 246) (B) Joint Decision of the Principal Powers
Likewise on a number of occasions a group of leading powers, perhaps
in association with a number of other states, have assumed a power of
disposition, although the legal bases of such a power were sometimes
problematic.3 It is possible that, as in the case of the creation of a new
constitution by rebellion, the political and legal bases are inseparable:
certainly the legal consequences of this power of disposition are
commonly accepted. The mandates system rested in substantial part at
least on such a power of disposition, and the International Court
accepted its consequences in its successive advisory opinions on the
status of South West Africa.4
Disposition of territory alone is not enough for a transfer of sovereignty,
however. In the Eritrea/Yemen arbitration, the Tribunal considered the
status of certain Red Sea islands in light of Article 16 of the Treaty of
Lausanne, by which the Ottoman Empire renounced sovereignty over the
islands. It held that no doctrine of reversion of historical title applied, so
that sovereignty over the islands in question had remained indeterminate
after Turkey divested itself of the territory.5 What was required for
acquisition of the territory was ‘an intentional display of power and
authority over the territory, by the exercise of jurisdiction and state
functions, on a continuous and peaceful basis’.6
(C) Action by United Nations Organs
It is doubtful if the UN has a capacity to convey title, in part because it
cannot assume the role of territorial sovereign: in spite of the principle of
implied powers, the UN is not a state and the General Assembly only has
a power of recommendation. On this basis it can be argued that GA
Resolution 181(II) of 29 November 1947, approving a partition plan for
Palestine, was if not ultra vires at any rate not binding on member
states.7
However this may be, the fact is that states may agree to delegate a
power of disposition to a political organ of the UN, at least where the
previous sovereign has relinquished title; but there is no transfer of
sovereignty and no disposition of a title inhering in the Organization. In
such cases the Organization acts primarily as a referee. The General
Assembly played this type of role in relation to the creation of the new
states of Libya and Somalia and in the case of territory relinquished by
Italy under the Peace Treaty of 1947.8
References
(p. 247) On similar principles, the General Assembly probably retained a
power to terminate trusteeship status for cause.9 But the termination of
mandates was a matter of more difficulty, partly because the power of
disposition arguably inhered in the principal Allied Powers participating in
the Treaty of Versailles.10 It may be that, in the historic cases of mandate
and trusteeship, and also of the few remaining territories to which
Chapter XI of the Charter applies, the UN does not ‘confer sovereignty’,
but rather decides on or approves the manner in which the principle of
self-determination is to be implemented. Certainly resolutions of the
General Assembly play an important element in the consolidation of title
over territory. This is especially the case with the resolutions based on
Resolution 1514(XV), the Declaration on the Granting of Independence to
Colonial Countries and Peoples.11
However that may be, the General Assembly assumed the power to
terminate the Mandate for South West Africa in Resolution 2145(XXI) of
27 October 1966.12 Subsequently the General Assembly established the
Council for South West Africa, appointed a UN Commissioner to
administer the territory, and renamed the territory ‘Namibia’. South Africa
failed to respond to these developments and the Security Council
adopted resolutions in 1969 and 1970 ‘recognizing’ the decision of the
General Assembly to terminate the Mandate and calling upon all states to
take measures to implement the finding that South Africa’s continued
presence in Namibia was illegal. By a further resolution the International
Court was asked to give an advisory opinion on the question, ‘What are
the legal consequences for States of the continued presence of South
Africa in Namibia notwithstanding Security Council Resolution 276
(1970)?’ As a preliminary to giving its views on the substance of the
question, the Court considered the validity of GA Resolution 2145(XXI) in
terms of the Charter.13 The Court held that the power of the League of
Nations, and therefore of the United Nations, to revoke the Mandate for
reasons recognized by general international law (termination on the
ground of material breach of a treaty) was to be implied.14 The role
adopted by the General Assembly, assisted by the Security Council, was
to take such action as was necessary to ensure the application of the
provisions of Resolution 1514(XV) to the people of Namibia. In formal
terms at least, this did not involve a power of disposition as such, but the
application of the provisions of the Charter, as interpreted by the practice
of the organs, relating to the principle of self
References
(p. 248) determination.15 Namibia eventually achieved independence in
1990 aft er elections supervised by the UN Transition Assistance
Group.16
The role of the General Assembly in the decolonization of Western
Sahara has involved a complex of issues concerning the principle of selfdetermination and the legal interests of Morocco (and at one time
Mauritania).17The situation remains unresolved.18
In the aftermath of the Iraqi invasion and occupation of Kuwait the
Security Council adopted Resolution 687 (1991). The resolution specified
the measures to be taken under Chapter VII of the Charter. In particular,
the Security Council demanded respect for the agreed territorial
delimitation,19 and decided ‘to guarantee the inviolability of the…
international boundary and to take as appropriate all necessary
measures to that end in accordance with the Charter of the United
Nations’. In the event, following the eviction of Iraq by a broad-based
coalition acting under a Security Council mandate, a Demarcation
Commission was created: it submitted a Final Report on the demarcation
of the international boundary between Iraq and Kuwait on 20 May
1993.20 In Resolution 833 (1993) the Security Council adopted the
decisions of the Commission as ‘final’. The exercise was, at least in form,
the demarcation of an already agreed alignment and no ‘reallocation’ was
intended. However, when the Final Report is examined it follows almost
inexorably that elements of delimitation were involved, especially in
relation to the maritime delimitation.21 The outcome was controversial but
it is important to remember that the Security Council expressly disclaimed
an intention to use the demarcation process for the purpose of
‘reallocating territory between Kuwait and Iraq’. Iraq subsequently
recognized the boundary so determined.22
In the context of maintaining international peace and security UN organs
have also been prepared to assume administrative functions in relation,
for example, to the
References
(p. 249) City of Jerusalem,23 the Free City of Trieste,24 East Timor,25 and
Kosovo.26 The existence of such administrative powers rests legitimately
on the principle of necessary implication and is not incompatible with the
view that the UN cannot have territorial sovereignty.
2. Sovereignty displaced or in abeyance
Although an undivided sovereignty is the normal mode of territorial
administration, exceptional situations exist which cannot be forced into
the sovereignty straightjacket. Thus sovereignty may be held jointly by
two states, as in a condominium,27 or distributed in time, as with a
leasehold or other grant of sovereign rights subject to an ultimate right of
reversion.28 Or it may be in abeyance, as with the mandate and
trusteeship systems.29 A brief analysis of some other possibilities follows.
(A) Territory Sub Iudice
When a territorial dispute is referred to adjudication, there is a real sense
in which sovereignty is in abeyance pendente lite: at any rate the tribunal
cannot acknowledge either state as sovereign pending its decision,
although the decision once given will be declaratory in form. The analogy
here is perhaps with the right of possession which the sequester or
stakeholder had in Roman law.30 The existing regime rests on acts in the
law which in principle could not create sovereignty in the existing holder
but which do not render the region terranullius. For practical purposes the
present possessor may be regarded as exercising normal powers of
jurisdiction and administration, subject only to external limitations arising
from the legal instruments determining the status of the region. Thus the
relevant agreement may contain provisions for demilitarization.
Furthermore, there must be an implied obligation not to act in such a way
as to render fulfilment of the ultimate objective of the arrangement
impossible. Thus if the
References
(p. 250) stated objective is to provide for an expression of opinion by
certain minority groups it would be ultra vires to deport or to harass and
blackmail the groups concerned.31 In this respect, the absence of a
textually-prescribed enforcement mechanism is not enough to offset the
obligation not to impede fulfilment of the end goal, though the presence
of such a mechanism will add yet another arrow to the bow. The status of
the inhabitants in terms of nationality and citizenship will depend on the
circumstances of the particular case.32 If one accepts the obligations
inherent in the doctrine of the ultimate objective then the conferment and
deprivation of nationality would not be a matter of domestic jurisdiction for
the administering state.
(B) Territory Title to which is Undetermined
It may happen that a piece of territory not a res nullius has no
determinate sovereign. This is not simply a case where two states have
conflicting claims to territory. In principle such cases can be assessed
according to law, with judgment in the form of a declaration. By contrast
there are cases where title is in effect suspended pending some future
event.
Existing cases spring chiefly from the renunciation of sovereignty by the
former holder and the existence of an interregnum with disposition
postponed until a certain condition is fulfilled, or where the states having
a power of disposition for whatever reason do not exercise the power or
fail to exercise it validly. For example, in the 1951 Peace Treaty Japan
renounced all rights to Taiwan.33 But the better view is that Taiwan was
not the subject of any act of disposition; it was not transferred to any
state. The former view of the British government was that: ‘Formosa and
the Pescadores are…territory the de iure sovereignty over which is
uncertain or undetermined’.34 Since 1972 the British government has
acknowledged the position of the Chinese government that Taiwan is a
province of China.35
(C) Terra Nullius36
For practical purposes the cases of terra nullius and territory sub
iudice or title to which is undetermined may, to a certain extent, be
assimilated. In both cases activity is limited by principles similar to those
protecting a reversioner’s interest in municipal law. However, in the case
of the terra nullius the state which is in the course of
References
(p. 251) consolidating title37 is in principle entitled to carry out acts of
sovereignty. The important difference is that whereas a terra nullius is
open to acquisition by any state, the territory sub iudice is not susceptible
to occupation, since the express conditions for its attribution may have
been laid down already. In any case, there already is a possessor whose
interim possession may have received some form of recognition.
A terra nullius is subject to certain rules of law which depend on two
assumptions, first, that such zones are for the time being free for the use
and exploitation of all and, second, that persons are not deprived of the
protection of the law merely because of the absence of state sovereignty
—the law of the sea gives the relevant analogy for this. States may
exercise jurisdiction in respect of their individuals and companies carrying
on activities in a terra nullius, as well as in respect of stateless persons.
There is also universal jurisdiction in certain cases: Article 101 of the UN
Convention on the Law of the Sea defines piracy to include acts directed
‘against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State’.38 Acts in the nature of aggression or breaches
of the peace, war crimes, or crimes against peace and humanity, will
equally be so in terra nullius.39 Unjustified interference from agencies of
another state with lawful activity will create international responsibility in
the ordinary way. As far as succession of obligations to the new state
goes, it is doubtful whether private interests established prior to the
reduction into sovereignty of a terra nullius must be respected by the new
sovereign.40
Several issues remain unsettled. It is not clear that a terra nullius has a
territorial sea: the logic, such as it is, of the doctrine of
appurtenance41 does not apply here, and it would be reasonable to
regard the adjacent waters as high seas.42
(D) Res Communis
The high seas are commonly described as res communis omnium,43 and
occasionally as res extra commercium.44 The use of these terms is
innocent enough, providing not too
References
(p. 252) much is read into them. They represent only a few basic
guideposts and do not provide a viable regime of themselves. The res
communis may not be subjected to the sovereignty of any state, general
acquiescence apart, and states are bound to refrain from any acts which
might adversely affect the use of the high seas by other states or their
nationals. It is now generally accepted that outer space and celestial
bodies have the same general character. Legal regimes that are similar in
type may be applied by treaty to other resources, for example an oilfield
underlying parts of two or more states.45
(E) Territorial Entities (Other Than States) Enjoying Legal
Personality
In Western Sahara the International Court considered the legal status of
the ‘Mauritanian entity’ at the time of colonization by Spain in the years
1884 onwards. It was accepted that the entity was not a state. However,
in coming to this conclusion the Court accepted as a principle that in
certain conditions a legal entity, other than a state, ‘enjoying some form
of sovereignty’, could exist distinct from the several emirates and tribes
which composed it.46 These conditions were not described with any
precision by the Court but were related to the existence of ‘common
institutions or organs’ and of an entity which was in ‘such a position that it
possesses, in regard to its Members, rights which it is entitled to ask
them to respect’.47
48
(F) Antarctica48
Escaping all classifications—but illustrating well the possibilities and
weaknesses of international arrangements for the government of territory
—is Antarctica. Virtually the whole continent is claimed by one of the
seven claimant states (there is a small unclaimed sector which is the last
surviving terra nullius on earth). But these claims are not recognized by
any other participant in Antarctic activity, and the legal positions of both
claimants and non-claimants are protected by a continental ‘without
prejudice’ clause, Article IV of the Antarctic Treaty.49It is on this fragile
basis of claims and their non-recognition that the entire edifice of
Antarctic scientific and (increasingly) touristic activity is based, as well as
the regulatory framework of the Antarctic Treaty System.
References
Footnotes:
1
See esp Jennings, Acquisition of Territory (1963) 69–
87; Crawford, Creation of States (2nd edn, 2006) 501–647.
2
Wambaugh, Plebiscites since the World War (1933);
Beigbeder, International Monitoring of Plebiscites, Referenda and
National Elections (1994).
3
Cf International Status of South West Africa, ICJ Reports 1950 p 128,
146–63 (Lord McNair).
4
Status of South West Africa, ICJ Reports 1950 p 128; Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), ICJ Reports 1971 p 16; Western Sahara, ICJ Reports 1975 p
12.
5
Eritrea and Yemen(Territorial Sovereignty) (1998) 114 ILR 1, 40.
6
Ibid, 69.
7
Kelsen, The Law of the United Nations (1950) 195–7; Crawford (2nd
edn, 2006) 424–36.
8
8
See GA Res 289A(IV), 21 November 1949; GA Res 387(V), 17
November 1950; GA Res 1418(XIV), 5 December 1959. Further: GA Res
515(VI), 1 February 1952, on the transfer of Eritrea to Ethiopia.
9
This may be inferred from Arts 76 and 85 of the Charter: Jennings
(1963) 81. No express provision appears, but (except with strategic
trusteeships) it was the GA that approved the trusteeship agreement in
each case. Further: Marston (1969)18 ICLQ 1; Crawford (2nd edn, 2006)
581–6.
10
Also: Status of South West Africa, ICJ Reports 1950 p 128, 150
(Judge McNair), 168 (Judge Read), 180–1 (Judge Alvarez, diss);
Crawford (2nd edn, 2006) 574–81.
11
14 December 1960. Further: Jennings (1963) 82–7.
12
For contemporary comment: Dugard (1968) 62 AJIL 78; Marston
(1969) 18 ICLQ 1, 28ff; Rousseau (1967) 71 RGDIP 382.
13
Namibia, ICJ Reports 1971 p 16, 45–50.
14
Ibid, 47–9. Also: Dugard (1968) 62 AJIL 78, 84–8.
15
For criticism of the opinion on the basis that neither the GA nor the SC
has the power to abrogate or alter territorial rights, see Judge Fitzmaurice
(diss), ICJ Reports 1971 p 16, 280–3, 294–5. But in the Friendly
Relations Declaration, the GA stated that achieving any political status
freely determined by plebiscite is tantamount to achieving selfdetermination: Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations, Annex to GA Res 2625(XXV), 24
October 1970.
16
GA Res S-18, 23 April 1990, following SC Res 652 (1990).
17
Western Sahara, ICJ Reports 1975 p 12, 69–77 (Judge Gros), 105–15
(Judge Petrén), 116–26 (Judge Dillard), 127–72 (Judge de Castro).
18
Franck (1976) 70 AJIL 694; Shaw (1978) 49 BY 118; Crawford (2nd
edn, 2006) 637–47; S/2007/210.
19
Iraq-Kuwait, Agreed Minutes Between the State of Kuwait and the
Republic of Iraq Regarding the Restoration of Friendly Relations,
Recognition and Related Matters, Baghdad, 4 October 1963, 485 UNTS
321. The Agreed Minutes did not delimit maritime areas.
20
S/25811, 21 May 1993.
21
Mendelson & Hulton (1993) 64 BY 135.
22
S/1994/1173, 14 October 1994. Also: SC Res 949 (1994).
23
See Trusteeship Council, Statute for the City of Jerusalem, T/592, 4
April 1950; Stahn (2001) 5 MPUNYB 105, 126–7, 134; Chesterman, You,
The People: The United Nations, Transitional Administration, and StateBuilding (2004) 52–4.
24
See Permanent Statute for the Free Territory of Trieste, Annex VI to
the Treaty of Peace with Italy, 10 February 1947, 49 UNTS 3; Stahn
(2001) 5 MPUNYB 105, 125–6, 135–6, 180; 3 Whiteman 68–109;
Chesterman (2004) 50–2.
25
On the UN Transitional Administration in East Timor (1999–2002) see
Crawford (2nd edn, 2006) 560–2; Chesterman (2004) 60–4, 135–43.
26
Ruffert (2001) 50 ICLQ 613; Stahn (2001) 5 MPUNYB 105; Wilde
(2001) 95 AJIL 583; Chesterman (2004) 79–83. Further: chapter 4.
27
Lauterpacht (1956) 5 ICLQ 409; Seyersted (1961) 37 BY 351, 45–3.
Cf Kelsen (1950) 195–7, 684–7.
28
E.g. O’Connell (1968–69) 43 BY 71 (New Hebrides).
29
The best-known case is Guantanamo Bay under the Cuba–US Treaty
of 23 February 1903, 193 CTS 314.
30
Holmes, The Common Law (1881) 209.
31
Genocide Convention, 9 December 1948, 78 UNTS 277.
32
Cf Eritrea/Ethiopia Claims Commission, Partial Award: Loss of
Property in Ethiopia owned by Non-Residents (Eritrea’s Claim No 24), 19
December 2005, §§8–11.
33
Treaty of Peace with Japan, 8 September 1951, 136 UNTS 45, Art
2(b).
34
Written answer by the Secretary of State, 4 February 1955, in (1956)
5 ICLQ 405, 413; also: (1959) 8 ICLQ 146, 166.
35
35
See the official statements in (1986) 57 BY 509, 512; (1991)
62 BY 568; (1995) 66 BY 618, 620–1. On the legal status of Taiwan cf
Crawford (2nd edn, 2006) 206–21.
36
Island of Palmas (1928) 2 RIAA 829; Fitzmaurice (1957) 92
Hague Recueil 129, 140–4. Cf McNair, 1 Opinions 314–25; Jacobsen v
Norwegian Government (1933) 7 ILR 109. Also: chapter 9.
37
Since states do not always advertise an animus possidendi this is
probably to be presumed, except where representations from other states
provoke a disclaimer. See Escorihuela (2003) 14 EJIL 703, 717
(presenting one view of animus possidendi as an ‘empty
phantom’); Legal Status of Eastern Greenland (1933) PCIJ Ser A/B No
53.
38
UNCLOS, 10 December 1982, 1833 UNTS 3. Also: UNCLOS, Arts
100, 105; ILC Ybk 1956/II, 282–3 (Arts 38–9 and 43 and commentary
thereon). On piracy: chapter 13.
39
Fitzmaurice (1957) 92 Hague Recueil 129, 142.
40
Cf Mabo v Queensland (No 2) 112 ILR 457.
41
E.g. Cohen v Whitcomb (1919) 142 Minn 20, 23 (Minn SC)
defining appurtenance as ‘[t]hat which belongs to something else.
Something annexed to another thing more worthy.’
42
GCTS, 29 April 1958, 516 UNTS 215, Art 10 and UNCLOS Art 2
speak of the extension of the sovereignty of a state, not of the extent of a
territory.
43
Fitzmaurice (1957) 92 Hague Recueil 129, 142, 143, 150–1, 156–7,
160–2. In Roman law the concept did not acquire a very definite content
and was confused at times with res publicae. On the high seas:
chapter 13.
44
Lindley, The Acquisition and Government of Backward Territory in
International Law (1926) 23 uses the term territorium nullius.
45
UK-Netherlands, Agreement relating to the Exploitation of Single
Geological Structures extending across the Dividing Line on the
Continental Shelf under the North Sea, 6 October 1965, 595 UNTS 106.
46
46
ICJ Reports 1975 p 12, 57–65, 67–8.
47
Ibid, 63, referring to Reparation for Injuries Suffered in the Service of
the United Nations, ICJ Reports 1949 p 174, 178. On legal personality:
chapter 4.
48
See Bush, Antarctica and International Law (1988); Rothwell, The
Polar Regions and the Development of International Law (1996); Stokke
& Vidas, Governing the Antarctic (1996); Crawford, in French, Saul &
White (eds), International Law and Dispute Settlement (2010) 271.
49
Antarctic Treaty, 1 December 1959, 402 UNTS 71, Art IV.
Part IV Law of The Sea
(p. 255) 11 The Territorial Sea and Other
1
Maritime Zones
1. The Territorial Sea
(A) Introduction
Traditionally states were regarded as exercising sovereignty, subject to a
right of innocent passage, over a belt of sea adjacent to their coastlines
and bounded by the high seas. The breadth of this ‘territorial sea’2 was
never definitively settled despite codification attempts in 1930, 1958, and
1960; claims varied between three and six nautical miles (nm) and even
more.3 It came to be understood that the territorial sea was founded on a
baseline, related to the low-water mark, and enclosing internal waters
(rivers, bays, gulfs, harbours, etc) lying on its landward side. Both the
1958 Geneva Convention on the Territorial Sea and Contiguous Zone
(GCTS)4and the UN Convention on the Law of the Sea
(UNCLOS)5 assume that every coastal state has a territorial sea.6
References
(p. 256) Following early debate,7 it came to be settled that states have
sovereignty over the territorial sea. GCTS Article 2 and UNCLOS Article
3 both state that sovereignty is exercised subject to the provisions of the
respective conventions and other rules of international law. This was
intended to highlight that the limitations upon sovereignty in this area set
out in the Convention are non-exhaustive. The sovereignty of the coastal
state extends to the seabed and subsoil of the territorial sea and the
airspace above it.8
An understanding of the modern law depends on an understanding of its
history. In the eighteenth century extravagant claims to sovereignty over
the seas came to be seen as obsolete or nearly so. In 1702, the Dutch
jurist Bynkershoek propounded the doctrine that the power of the
territorial sovereign extended to vessels within cannon range of
shore.9 At first this doctrine seemed commensurate with the control of the
actual guns of ports and fortresses over adjacent waters: it was not a
maritime belt of uniform breadth.10 However, in the latter half of the
eighteenth century, several states laid down limits for belts for purposes
of customs or fishery control in legislation and treaties, and Danish
practice—after 1745 based on a four-mile belt11—had some impact on
European thinking.12
In the later eighteenth century, two developments occurred. Writers and
governments conceived of a hypothetical cannon-shot rule, a belt over
which cannons could range if they were placed along the whole
seaboard. Further, as ‘cannon-shot’ was a somewhat imprecise criterion,
suggestions for a convenient substitute appeared. In 1782, the Italian
writer Galiani proposed three nautical miles, or one marine league.13The
diplomatic birth of the three-mile limit appears to have been the US Note
to Britain and France of 8 November 1793, in which the limit was
employed for purposes of neutrality.14 During and after the Napoleonic
wars, British and American prize courts translated the cannon-shot rule
into the three-mile rule.15
A significant legal development was the shift from claims to jurisdiction for
particular purposes to the extension of sovereignty over a maritime belt.
Some claims, such as those of Denmark and Sweden, though
commencing as pronouncements for
References
(p. 257) neutrality purposes, quickly developed into assertions of
sovereignty,16 especially when associated with exclusive fishery limits. In
other cases it remained unclear whether a claim was only to certain types
of jurisdiction or a general limit of sovereignty.17
Such claims to jurisdiction have tended to harden into claims to
sovereignty, and indeed a few states still claim a territorial sea or other
zone of sovereignty beyond 12nm, the limit now laid down by UNCLOS
Article 3. This process was, however, arrested to some extent by
recognition of a legal distinction between the territorial sea as an
extension of sovereignty and special jurisdictional zones.18 A variety were
claimed during the twentieth century, and four were eventually accepted,
namely the contiguous zone, the continental shelf and the exclusive
economic zone (EEZ), and (in certain cases) archipelagic seas. These
are now regulated by UNCLOS, with non-parties showing little disposition
to challenge its provisions. UNCLOS characterizes the coastal state’s
rights over the continental shelf and the EEZ as ‘sovereign rights’, but
they co-exist with high seas rights applicable to other matters, notably
maritime transit, the laying of submarine cables, etc (see chapter 13).
(B) The Baseline for Measurement of the Territorial Sea
The baseline from which the breadth of the territorial sea is measured is
normally the coastal low-water line.19There is no standard by which
states determine this line, although UNCLOS Article 5 defines the line ‘as
marked on large scale charts officially recognised by coastal States’.20
References
(p. 258) At one time it was arguable that the baseline was for all
purposes the low-water mark. But in the signal case Anglo–Norwegian
Fisheries the Court decided otherwise.21
The Norwegian limit of four nautical miles for territorial waters had been
established by royal decree in 1812 and was not at issue in the case.
However, later decrees of 1869, 1881, and 1889 continued the measure
of 1812 in terms of a system of straight lines drawn from certain
outermost points of the skjaergaard or rampart of rocks and islands which
fringes much of the Norwegian coast. By a decree of 12 July 1935,
Norway applied the system in a more detailed way, and the validity of the
new limits was challenged by the UK. After a series of incidents, the UK
took the case to the Court, seeking damages for interference with British
fishing vessels outside the permissible limits.22 The Court held that the
system of straight baselines following the general direction of the coast
had been consistently applied by Norway and was unopposed by other
states. The UK had not explicitly protested the position of baselines until
1933.23 Thus the decree of 1935 could have been upheld on the basis of
acquiescence; indeed, Judge Hackworth would have upheld Norway’s
historic title to the areas in question.24
But the Court went further, holding that the Norwegian system of
baselines was lawful in principle.25 It stressed the broken and indented
character of the Norwegian coastline:26 to draw the baseline along the
outer limit of the skjaergaard was a solution ‘dictated by geographical
realities’.27 By contrast, a line which was an exact image of the coastline
(the tracé parallèle), assumed to be the normal method of applying the
low-water mark rule,28 did not apply to a coast where the baseline could
only be determined by means of a geometric construction.29
The British argument that the length of closing lines must not exceed
10nm was criticized in these terms:
[T]he practice of States does not justify the formulation of any general rule of law…
[A]part from any question of limiting the lines to ten miles, it may be that several lines can
be envisaged. In such cases the coastal State would seem to be in the best position to
appraise the local
References
(p. 259) conditions dictating the selection…[A]ll that the Court can see [in the Norwegian
system] is the application of general international law to a specific case.30
The Court went on to elaborate criteria for determining the validity of
straight baselines. First, because of the dependence of the territorial sea
upon the land, ‘the drawing of baselines must not depart to any
appreciable extent from the general direction of the coast’.31 Secondly, a
close geographical relationship between sea areas and land formations is
a ‘fundamental consideration’ in deciding ‘whether certain sea areas lying
within [the baselines] are sufficiently closely linked to the land domain to
be subject to the regime of internal waters’.32Thirdly, it is relevant that
there exist ‘certain economic interests peculiar to a region, the reality and
importance of which are evidenced by long usage’.33
Even if one regards Anglo-Norwegian Fisheries as an instance of judicial
legislation, its significance for the development of the law cannot be
underestimated. The Court’s pronouncements on the straight lines
method were intended to have general application to coasts of that type.
They have been codified in GCTS Article 4 and UNCLOS Article 7, which
confirm the place of Anglo-Norwegian Fisheries in the modern law of the
sea. A good number of states employ straight baselines, although not
always in conformity with the rules.34
UNCLOS Article 14 provides that ‘[t]he coastal State may determine
baselines in turn by any of the methods provided for…to suit different
conditions.’ Thus straight baselines may be used in conjunction with
closing lines across river mouths35 and bays.36 Furthermore, under
UNCLOS Article 7(2) straight baseline systems may apparently be
maintained despite changes in coastal morphology.
(C) Breadth of the Territorial Sea37
In the seventeenth century several forms of limit were known, including
the range of vision on a fair day and the range of cannons on shore. By
the last quarter of the eighteenth century, the cannon-shot rule obtained
in western and southern Europe. It was not dominant, however, and other
claims rested simply on a belt with a stated breadth.38 In 1793, the
cannon-shot rule was first given a standard value of one marine league
References
(p. 260) or three nautical miles in diplomatic practice.39 By 1862,40 and
probably earlier, the cannon-shot rule and the three-mile limit were
generally regarded as synonymous.41
The three-mile limit gained currency during the nineteenth century.
However, practice was not uniform,42 and France, Belgium, Portugal,
Germany, and Russia did not differentiate clearly in their practice
between territorial sea and jurisdictional zones. Many states with a threemile limit claimed contiguous zones extending beyond three nautical
miles.
Thus some jurists doubted whether the three-mile limit had been
unequivocally settled.43 The results of the Hague Codification
Conference of 1930 provide a significant balance sheet. Although a
majority of states favoured a three-mile limit, some also claimed
contiguous zones. In its report to the Conference the second committee
explained that, due to differences of opinion, it preferred not to express
any conclu-sion.44 Likewise the ILC indicated that a majority of members
did not regard the three-mile rule as positive law.45 It proved impossible
to agree on a limit at UNCLOS I (1958) and II (1960). But as part of the
trade-off which occurred at UNCLOS III, agreement was reached.
UNCLOS Article 3 provides that ‘every state has the right to establish the
breadth of its territorial sea up to a limit not exceeding 12 nautical miles’.
Until 1987 and 1988 respectively, the US and the UK supported the
three-mile limit and protested wider claims. British adherence to the
three-mile limit was reinforced by the legislative embodiment of the limit,
commencing with the Territorial Waters Jurisdiction Act 1878. Now,
however, most states have a 12nm limit,46 including non-parties to
UNCLOS such as the US.47 Claims apparently in excess of 12nm call for
careful assessment. Certain of these are fishing conservation zones,
wrongly characterized.48
References
(p. 261) (D) Bays49
In certain circumstances, bays may be enclosed by a line which leaves
internal waters on its landward side and provides a baseline for delimiting
the territorial sea.
(i) Bays the coasts of which belong to a single state
The drawing of a closing line is possible only where the coast of the bay
belongs to a single state. GCTS Article 7(2) and UNCLOS Article 10(2)
provide a geometrical, semicircle test for bays.50 This is a necessary but
not sufficient condition for the existence of a bay: there must be ‘a wellmarked indentation with identifiable headlands’.51 Gulfs, fjords, and
straits, or parts thereof, are not excluded from the legal concept of a bay.
On the other hand the provisions concerning bays are not intended to
introduce the system of straight lines to coasts whose configuration does
not justify this.
It was asserted formerly that the closing line was limited to 10nm.
Practice was, however, not uniform,52 and in Anglo-Norwegian
Fisheries the International Court concluded that ‘the ten-mile rule has not
acquired the authority of a general rule of international law’.53 GCTS
Article 7(4) and UNCLOS Article 10(4) prescribe 24nm.
Coastal states may derive title to bays as a consequence of the AngloNorwegian Fisheries system of straight lines. A considerable number of
claims related to ‘bays’ are based on historic title, often on questionable
or equivocal evidence.54
(ii) Bays bounded by the territory of two or more states
Although the issue has not been uncontroversial, GCTS Article 12(1) and
UNCLOS Article 15 now represent the law. Article 15 provides:
Where the coasts of two States are opposite or adjacent to each other, neither of the two
States is entitled, failing agreement between them to the contrary, to extend its territorial
References
(p. 262) sea beyond the median line every point of which is equidistant from the nearest
points on the baselines from which the breadth of the territorial seas of each of the two
States is measured.
The above provision does not apply, however, where it is necessary by reason of historic
title or other special circumstances to delimit the territorial seas of the two States in a
way which is at variance therewith.
The reference to ‘other special circumstances’ is vague, but seems to
cater for geographical peculiarities and the elimination of practical
problems.55
(E) Islands, Rocks, and Low-Tide Elevations56
(i) Definition of ‘island’
Whatever its size or population, a formation is legally an island if two
conditions are satisfied: (1) the formation must be ‘a naturally formed
area of land’; (2) it must always be above sea level. Permanently
submerged banks and reefs generally do not produce a territorial sea,
and formations visible only at low tide (low-tide elevations) will only do so
in limited circumstances. Islands are ordinarily entitled to a territorial sea,
contiguous zone, EEZ, and continental shelf.57
However, UNCLOS Article 121(3) provides that ‘[r]ocks which cannot
sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf ’. This provision reflects the
concern that minor features permanently above sea level but otherwise
insignificant should not generate extended maritime zones up to or
beyond 200nm. It is unlikely that the term ‘rocks’ further restricts the
application of Article 121(3) to features meeting unspecified geological
criteria. A UN study on baselines published in 1989 suggests as a
definition, ‘[a] solid mass of limited extent’.58 Yet proposals to limit those
islands capable of supporting an EEZ by reference to size were not
accepted.59 The term ‘rocks’ might be considered to refer to islands
meeting conditions (1) and (2) which cannot sustain habitation or
economic life of their own.
But the qualifying phrase is unclear. Is past, present, or future
sustenance of human habitation or economic life sufficient? The
conjunction ‘or’ may suggest that an island may generate an EEZ
provided it is capable of sustaining independently either human habitation
or economic life; or it may operate cumulatively. The concept of
‘economic life of their own’ is also vague:60 many small island
populations are dependent on
References
(p. 263) remittances and metropolitan aid but presumably qualify as
having an ‘economic life of their own’. It is possible that sovereign rights
to exploit living and non-living marine resources in the territorial sea could
fulfil the requirement of ‘economic life’. By contrast fisheries or sea-bed
minerals beyond 12nm could not do so: otherwise every rock would be
capable of sustaining economic life of its own and the provision would be
entirely circular. State practice is equivocal. While the UK’s renunciation
of any claim to an EEZ or continental shelf off Rockall upon acceding to
UNCLOS is oft en cited in this context,61 other states continue to claim
extended maritime zones for similar features.62
Whatever interpretative difficulties may attach to Article 121(3), it is part
of the negotiated text and must be given effect. Moreover the only explicit
definition of ‘island’ in the 1958 Conventions is in the GCTS, and it is not
disputed that islands and rocks of any size are entitled to a territorial sea.
What is disputed is whether they are entitled to maritime zones beyond
12nm, but the conventions do not contemplate the EEZ, and the Geneva
Convention on the Continental Shelf (GCCS) is equivocal.63
(ii) Low-tide elevations64
In two cases low-tide elevations (by definition not islands) affect the limit
of the territorial sea. GCTS Article 4(3) and UNCLOS Article 7(4) provide
that straight baselines shall not be drawn to or from low-tide elevations
unless lighthouses or similar installations which are permanently above
sea level have been built on them.65 Secondly, and independently, the
low-water line on an elevation situated at a distance not exceeding the
breadth of the territorial sea from the mainland or an island may serve as
the baseline.66 Low-tide elevations outside the territorial sea have no
territorial sea of their own.
References
(p. 264) (iii) Groups of islands: archipelagos67
The ILC failed to produce a draft article on archipelagos for inclusion in
GCTS, although in its commentary on Article 10 it noted that the straight
baselines system might be applicable.68 This provides no solution to the
problem of extensive island systems unconnected with a mainland.
Indonesia and the Philippines69 have for some time employed straight
baselines to enclose such island systems, and it may be that a polygonal
system is the only feasible one. It is arguable that this is only a further
application, to special facts, of principles of unity and interdependence
inherent in Anglo-Norwegian Fisheries. The difficulty is to allow for such
cases without giving a general prescription which, being unrelated to any
clear concept of mainland, will permit abuse.
At UNCLOS III the archipelagic states as a group70 successfully
advanced the cause of straight archipelagic baselines. UNCLOS includes
a Part concerning archipelagic states (Articles 46 to 54). These are
defined as ‘a state constituted wholly by one or more archipelagos and
may include other islands’. This definition unaccountably excludes
archipelagic baselines for those states, such as Ecuador and Canada,
which also consist of continental coasts as well as one or more
archipelagos.
Archipelagic straight baselines may be employed subject to conditions:
for example, that these baselines ‘shall not depart to any appreciable
extent from the general configuration of the archipelago’. The
archipelagic state has sovereignty over the waters enclosed by the
baselines subject to limitations created by the provisions of this Part of
the convention. These limitations consist of the right of innocent passage
for ships of all states, and, unless the archipelagic state designates sea
lanes and air routes, the right of archipelagic sea lanes passage ‘through
the routes normally used for international navigation’.71
(F) Legal Regime of the Territorial Sea
The coastal state has all the practical rights and duties inherent in
sovereignty, whereas foreign vessels have privileges, associated
particularly with the right of innocent passage, which have no general
counterparts in respect of the land domain. The coastal
References
(p. 265) state may reserve fisheries for national use. It may also exclude
foreign vessels from navigation and trade along the coast (cabotage).
Obviously, there are general police powers in matters of security,
customs, fiscal regulation, and sanitary and health controls.
Foreign ships have a right of innocent passage through the territorial sea
in customary law.72 GCTS Article 14 and UNCLOS Article 17 codify this
right (see further chapter 13).
2. The Contiguous Zone
The power of the coastal state may be manifested in other ways. The
territorial sea is, however, the form which involves a concentration of
‘sovereign’ legal rights. The general interest in maintaining the freedom of
the seas outside the territorial sea has been reconciled with the
tendencies of coastal states to extend their power seaward by the
development of generally-recognized specialized extensions of
jurisdiction and associated rights. The contiguous zone was the first to
emerge.
(A) The Concept of the Contiguous zone73
There is general recognition that contiguous zones give jurisdiction
beyond the territorial sea for special purposes. In 1958, the sole article on
the contiguous zone was GCTS Article 24, which referred to control by
the coastal state ‘in a zone of the high seas contiguous to its territorial
sea’. UNCLOS Article 33 describes it simply as a zone contiguous to the
territorial sea of the coastal state. Under UNCLOS Article 55 the
contiguous zone, if claimed, will be superimposed upon the EEZ. In the
absence of a claimed EEZ, the areas concerned form part of the high
seas (see Article 86). It follows that the rights of the coastal state in such
a zone do not constitute sovereignty,74 and other states have the rights
exercisable over the high seas save as qualified by these jurisdictional
zones.
Only recently has a consistent doctrine of contiguous zones
appeared.75 UNCLOS Article 33 provides for the creation of contiguous
zones for the same purposes and on the same basis as GCTS Article 24,
except that (a) the contiguous zone is no longer
References
(p. 266) considered ‘a zone of the high seas’; and (b) the maximum limit
is expressed to be 24nm from the territorial sea baselines. Most coastal
states claim a contiguous zone within and up to this maximum
limit;76these, when limited to the purposes specified in Article 33, are
uncontroversial.
(B) Functional Jurisdiction in the Contiguous Zone
In considering the purposes for which a contiguous zone may be
maintained, UNCLOS Article 33 is now the departure point. It refers to
the exercise of control necessary to prevent infringement of ‘customs,
fiscal, immigration or sanitary regulations within the territory or territorial
sea of the coastal State’. Although it does not refer to the exercise of
control for security purposes, some states have claimed jurisdiction in a
zone contiguous to the territorial sea on this basis, both prior to and after
the entry into force of the GCTS and UNCLOS.77 A set of draft articles
relating to the territorial sea in times of peace approved by the Institut in
1928 included security measures among the controls exercised in a zone
contiguous to the territorial sea.78 In 1956, however, the ILC stated that it
did not recognize special security rights in the contiguous zone. It considered that the
extreme vagueness of the term ‘security’ would open the way for abuses and that the
granting of such rights was not necessary. The enforcement of customs and sanitary
regulations will be sufficient in most cases to safeguard the security of the State. In so far
as measures of self-defence against an imminent and direct threat to the security of the
State are concerned, the Commission refers to the general principles of international law
and the Charter of the United Nations.79
It may be added that recognition of such rights would go far toward
equating rights over the contiguous zone and the territorial sea.
(i) Customs
The exercise of this jurisdiction is frequent and no doubt rests on
customary international law. UNCLOS Article 33 refers compendiously to
‘customs and fiscal’ regulations in the contiguous zone; other sources
refer to ‘revenue laws’. Modern vessels would find smuggling quite
straightforward if a narrow enforcement area were employed, and
customs zones of 6 and 12nm were common. The US exercised customs
jurisdiction over inward-bound foreign vessels within a four-league zone
from 1790. The UK had similar ‘hovering acts’ operating against foreign
vessels from 1736 until (p. 267) 1876.80 Claims for the enforcement of
national legislation in areas of the high seas are limited by
reasonableness, and regulations designed for revenue enforcement
cannot be employed in such a way as to accomplish another purpose, for
example the exclusion of foreign vessels.81 Treaty regimes may be
created for the mutual recognition of zones and enforcement procedures,
reducing the likelihood of incidents.82
(ii) Immigration
In practice customs and fiscal regulations might be applied to deal with
immigration, and this jurisdiction shares the same policy basis as that
relating to customs. Immigration zones were reconciled partially by
inclusion in the GCTS and UNCLOS.83 The limitation to immigration may
be significant, although in its 1955 report the ILC indicated that the term
was intended to include emigration.84
(iii) Sanitary purposes
Such zones are included in GCTS Article 24 and UNCLOS Article 33.
The ILC’s commentary notes:
Although the number of States which claim rights over the contiguous zone for the
purpose of applying sanitary regulations is fairly small, the Commission considers that, in
view of the connection between customs and sanitary regulations, such rights should
also be recognized for sanitary regulations.85
Doctrine supports this type of claim.86
Sanitary purposes might cover measures to prevent pollution, particularly
by oil, but the position is unclear. Jurisdiction to police pollution has been
advanced by the extension of the territorial sea and the appearance of
the EEZ, wherein the coastal state has the right of conserving and
managing natural resources.87 UNCLOS Part XII also sets out a general
obligation to protect and preserve the marine environment.88 States are
further required to take ‘all measures consistent with [the] Convention
that are necessary to prevent, reduce and control pollution of the marine
environment from any source’ and to ‘take all measures necessary to
ensure that activities under their jurisdiction or control are so conducted
as not to cause damage by pollution to other States and their
environment, and that pollution arising from incidents or activities under
their jurisdiction or control does not spread beyond the areas where
References
(p. 268) they exercise sovereign rights’.89 The coastal state may adopt
‘laws and regulations for the prevention, reduction and control of pollution
from vessels conforming to and giving effect to generally accepted
international rules and standards’ in their EEZs.90 UNCLOS Article 220
sets out coastal state rights of enforcement in respect of vessels within its
territorial sea and EEZ.
(C) Issues of Enforcement
Under general international law the coastal state may take steps
necessary to enforce compliance with its laws in the prescribed zone.
The power is one of police and control, and transgressors cannot be
visited with consequences amounting to reprisal or summary punishment.
Forcible self-help may not be resorted to as readily as in the case of
trespass over a terrestrial frontier.
Thus the conventional law may be more restrictive from the perspective
of a coastal state than customary law.91 Both GCTS Article 24(1) and
UNCLOS Article 33 provide for the exercise of control necessary to
prevent and punish infringement of customs, fiscal, immigration or
sanitary laws or regulations within its territory or territorial waters.
Fitzmaurice promoted this text prominently in the ILC. In his view:92
It…is control, not jurisdiction, that is exercised…[T]aken as a
whole, the power is essentially supervisory and preventative.
The basic object is anticipatory. No offence against the laws of
the coastal State is actually being committed at the time. The
intention is to avoid such an offence being
committed subsequently, when, by entering the territorial sea,
the vessel comes within the jurisdiction of the coastal State; or
else to punish such an offence already committed when the
vessel was within such jurisdiction…Whatever the eventual
designs of the [incoming] vessel, she cannot ex hypothesi at this
stage have committed an offence ‘within [the coastal State’s]
territory or territorial sea’…As regards ordering, or conducting,
the vessel into port under escort, the case is less clear. Though
formally distinct from arrest, enforced direction into port is, in the
circumstances, almost tantamount to it, and should therefore in
principle be excluded: any necessary inquiries, investigation,
examination, search, etc., should take place at sea while the
ship is still in the contiguous zone.…In case this may seem to
be unduly restrictive, it must be observed that only by insistence
on such limitations is it possible to prevent coastal States from
treating the contiguous zone as virtually equivalent to territorial
sea.
This interpretation, whilst open, is not inevitable, and the travaux
préparatoires indicate that most delegations at UNCLOS I did not intend
to restrict rights by distinguishing between ‘control’ and
‘jurisdiction’.93 The language of GCTS Article 24 was retained in
UNCLOS Article 33: again the record of negotiations does not indicate an
intention to limit coastal state powers in the contiguous zone by using the
term
References
(p. 269) ‘control’.94 The decision to retain the contiguous zone, however,
seems to have been based upon the observation that coastal state
jurisdiction in the EEZ related primarily to natural resources and did not
cover the functions specified for the exercise of control in the contiguous
zone. Although enforcement jurisdiction in the contiguous zone relates to
the threatened or actual infringement of laws and regulations within the
territory or territorial waters and does not extend jurisdiction to the
contiguous zone, a small number of states argue that this limitation was
not supported by the majority at UNCLOS I or by state
practice.95 Nevertheless, a Polish amendment removing the reference to
infringement within the territory or the territorial sea (and adding security
to the list of recognized purposes for the exercise of control) failed in
plenary.
3. The Continental Shelf
Submarine areas may be classified as follows: (a) the seabed of the
internal waters and territorial seas of coastal states, which are under
territorial sovereignty; (b) the seabed and subsoil of the EEZ, which is
part of that zone; (c) the continental shelf area, which overlaps with the
EEZ within 200nm but may extend further; and (d) the seabed and ocean
floor beyond the outer limits of the continental shelf and EEZ, which
come within the legal regime of the high seas.
UNCLOS Article 56 purports to solve the problem of overlapping regimes
by providing that rights with respect to the seabed and subsoil in the EEZ
shall be exercised in accordance with Part VI, that is, the continental
shelf regime. But this does not solve the problem entirely, since an area
may be within 200nm of state A (and thus part of its EEZ) but beyond
200nm from state B yet claimed by it as outer continental shelf.96 The
legal regime of the international seabed ‘Area’ and the International
Seabed Authority are discussed in chapter 13.
(A) Origins of the Continental Shelf
Much of the seabed consists of the deep ocean floor, several thousand
metres deep. In many parts of the world the ‘abyssal plain’ is separated
from the coast of the land masses by a terrace or shelf. This is
geologically part of the continent itself, overlain by
References
(p. 270) the relatively shallow waters of the continental margin. The width
of the shelf varies from a mile to some hundreds of miles and the depth
ranges from 50 to 550 metres. The configuration of the seabed has
certain regularities. The increase in depth is gradual until the shelf edge
or break is reached, when there is a steep descent to the ocean floor.
The average depth of the edge is between 130 and 200 metres. The
relatively steep incline of the continental slope gives way to the often
large apron of sediments, which masks the boundary between the deep
ocean floor and the pedestal of the continental mass, and is called the
continental rise.
The shelf carries oil and gas deposits in many areas and the seabed
itself provides sedentary fishery resources. In 1944, an Argentine Decree
created zones of mineral reserves in the epicontinental sea.97However,
the decisive event in state practice was a US proclamation of 28
September 1945 relating to the natural resources of the subsoil and
seabed of the continental shelf (the Truman Proclamation).98 The shelf
was regarded as a geological feature extending up to the 100 fathoms
line. The resources concerned were described as ‘appertaining to the
United States, subject to its jurisdiction and control’. Significantly, the
claim was limited to the resources themselves and the proclamation
declared that ‘the character as high seas of the waters of the continental
shelf and the right to their free and unimpeded navigation are in no way
thus affected’.
The Truman Proclamation was in substance followed by Orders in
Council of 1948 relating to the Bahamas and Jamaica, and by
proclamations issued by Saudi Arabia in 1948 and nine Gulf sheikhdoms
under UK protection in 1949.99 Practice varied, however. The Truman
Proclamation and an Australian proclamation of 10 September 1953
related the claim to the exploitation of the resources of the seabed and
subsoil of the continental shelf, and stipulated that the legal status of the
superjacent waters as high seas was unaffected. Other states claimed
sovereignty over the seabed and subsoil of the shelf but reserved
consideration of the status of the waters above.100
The Truman Proclamation proved attractive to many states. It provided a
basis for the exploitation of petroleum and at the same time
accommodated freedom of fishing and navigation in the superjacent
waters. However, practice was uneven,101 and the discussions in the ILC
from 1951 to 1956 indicated the immaturity of the regime.
References
(p. 271) Inevitably the text of the GCCS represented in part an essay in
progressive devel-opment.102Nevertheless, the first three articles by
1958 reflected the customary law position.103 Article 1 defined the
continental shelf by reference to a general concept of adjacency and a
more specific (but still apparently open-ended) depth-plus-exploita-bility
limit; it also extended the shelf regime to islands (undefined). Article 2
defined the rights of the coastal state over the shelf as ‘sovereign rights
for the purpose of exploring it and exploiting its natural resources’: these
rights are exclusive and do not require proclamation. Article 3 preserved
‘the legal status of the superjacent waters as high seas, or that of the air
space above those waters’.
The GCCS may remain relevant where both parties to a dispute are
parties to it and not to UNCLOS.104However, the present position in
general international law depends upon numerous sources, each given
appropriate weight. The Chamber in Gulf of Maine recognized the
relevance of codification conventions, the decisions of the Court and of
other international tribunals, and the proceedings of UNCLOS III where
they indicated that certain provisions reflected a consensus.105 In its
decision in Continental Shelf (Libya/Malta), the International Court took
careful account of certain aspects of UNCLOS as evidence of
custom,106 while emphasizing state practice.107
(B) Rights of the Coastal State In The Shelf
According to GCCS Article 2, repeated in UNCLOS Article 77, the coastal
state exercises ‘sovereign rights for the purpose of exploring [the shelf]
and exploiting its natural resources’. The term ‘sovereignty’ was
deliberately avoided, as it was feared that this term, redolent of territorial
sovereignty (which operates in three dimensions), would prejudice the
status as high seas of the waters over the shelf. While the area within a
claimed 200nm EEZ is not designated ‘high seas’,108 UNCLOS Article
78(1) provides that ‘the rights of the coastal State over the continental
shelf do not affect the legal status of the superjacent waters or of the
airspace above those waters’.109 In the absence of a claimed EEZ, and
also when the shelf extends beyond 200nm, the superjacent waters will
be legally considered the high seas. When an EEZ exists, the
superjacent waters remain subject to most high seas freedoms in
accordance with custom and UNCLOS Article 58.
References
(p. 272) Several provisions attest to the delicate problem of balancing the
rights of the coastal state in exploiting shelf resources and the rights of
other states. UNCLOS Article 78(2) provides that ‘the exercise of the
rights of the coastal State over the continental shelf must not infringe or
result in any unjustifiable interference with navigation and other rights
and freedoms of other States as provided for in this Convention’ (see
also GCCS Article 5(1)). UNCLOS Article 79 provides that ‘all States are
entitled to lay submarine cables and pipelines on the continental shelf ’
subject to certain conditions. The coastal state ‘shall have the exclusive
right to authorise and regulate drilling on the continental shelf for all
purposes’.110
A major objective has been to provide a stable basis for operations on the
seabed and to avoid squatting by offshore interests. Thus ‘sovereign
rights’ inhere in the coastal state by law and are not conditioned on
occupation or claim. They are indefeasible except by express grant.
While coastal states apply various parts of criminal and civil law to
activities in the shelf area, it is by no means clear that they do this as an
aspect of their territorial or other rights in the shelf area. Legislation of the
UK111 and other states indicates that the shelf regime is not assimilated
to state territory.112
(C) Natural Resources of the Shelf113
The Truman Proclamation concerned the mineral resources of the shelf,
especially hydrocarbons. Subsequently Latin American states pressed for
recognition of the interest of coastal states in off shore fisheries (whether
or not they had a geophysical shelf). The ILC had decided to include
sedentary fisheries in the shelf regime,114 and GCCS Article 2(4) defines
‘natural resources’ to include ‘sedentary species, that is to say, organisms
which, at the harvestable stage, either are immobile on or under the
seabed or are unable to move except in constant physical contact with
the seabed or the subsoil’.115 The definition excludes dermersal species
which swim close to the seabed; it is reproduced in UNCLOS Article
77(4). Provided an encompassing EEZ has been claimed, definitional
issues will not arise, as living resources will be caught by one regime or
the other.
References
(p. 273) (D) Artificial Islands and Installations on the Shelf
The right to authorize and regulate artificial islands, installations and
other structures within the EEZ is set out in UNCLOS Article 60, which is
applied ‘mutatis mutandis to artificial islands, installations and structures
on the continental shelf ’ by Article 80. Such installations do not have
116
their own territorial sea.116 The coastal state may, where necessary,
establish safety zones not exceeding 500 metres around
them.117 Installations must not be established where they will interfere
with the use of recognized sea lanes essential to international
navigation.118
The GCCS and UNCLOS are silent on the subject of defence
installations on the shelf. Defence installations may thus be lawful if some
other justification exists.119 To suggest that the coastal state may create
defence installations and prohibit comparable activities by other
states120 is to risk justifying a shelf-wide security zone.
(E) Regime of the Subsoil
UNCLOS Article 85 provides that Part VI ‘does not prejudice the right of
the coastal State to exploit the subsoil by means of tunnelling irrespective
of the depth of water above the subsoil’ (see also GCCS Article 7). In
other words, such activity falls outside the scope of the Convention and is
governed by custom. There is a notable distinction; if exploitation is by
tunnel from the mainland, a different regime applies: if exploitation of the
subsoil occurs from above the shelf, the UNCLOS regime applies.121
(F) Outer Limit of the Shelf
The inner limit is the outer edge of the territorial sea and its seabed. As to
the outer limit, the solution proposed by UNCLOS is substantively and
procedurally different from the criteria in GCCS Article 1. According to
Article 1 the 200-metre depth criterion is subject to the exploitability
criterion, but the latter is controlled by the generally geological conception
of the shelf, and by the principle of adjacency.122 Only a handful of states
still rely on this formul.123
References
(p. 274) UNCLOS Article 76 adopts a different approach. It recognizes a
200nm breadth limit as an independently valid criterion, and provides
complex guidelines for locating the ‘outer edge of the continental margin’,
if that feature lies beyond 200nm from the relevant baselines. Article
76(5) sets maximum limits for the outer continental shelf, either 350nm
from the relevant baselines or ‘100 nautical miles from the 2,500 metre
isobath’.
So much for substantive difference. The key procedural difference is that
Annex II provides for an expert Commission on the Outer Limits of the
Continental Shelf. In accordance with Article 76(8):
Information on the limits of the continental shelf beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured shall be submitted by
the coastal State to the Commission…The Commission shall make recommendations to
coastal States on matters related to the establishment of the outer limits of their
continental shelf. The limits of the shelf established by a coastal State on the basis of
these recommendations shall be final and binding.
The relationship between the work of the Annex II Commission and
interstate delimitation of shelf areas is discussed in chapter 12.
Despite its complexity and the evident signs of diplomatic compromise in
its formulations, Article 76 is generally recognized as representing the
new standard of customary law for the shelf. There is always the
possibility that states opposing the 200-mile breadth criterion might have
adopted the role of persistent objectors, but in practice this has not
happened.124
4. The Exclusive Economic Zone/Fisheries Zone
(A) Introduction
Although the EEZ is considered one of the central innovations of
UNCLOS, it was foreshadowed by claims to fisheries jurisdiction beyond
the territorial sea. While most states now secure their right to fisheries by
claiming an EEZ of up to 200nm from the territorial sea baseline, a
number of states continue to claim Exclusive Fishery Zones (EFZ) either
instead of or as well as an EEZ. The EEZ is not only a fisheries zone: it
covers the exploitation and management of non-living as well as living
resources. UNCLOS Article 56 further provides for the sovereign rights of
the coastal state ‘with regard to other activities for the economic
exploitation and exploration of the zone’; it also lays down certain duties
(though these are not denominated ‘sovereign’).
References
(p. 275) (B) Fishery Zones
Since 1945, at least, coastal states with particular interests in off shore
fisheries have sought means of limiting major operations by extraregional fishing fleets. Paradoxically it was the US, historically an
opponent of fishing zones, which drove initial change. In the first place
the US took an important initiative in claiming the mineral resources of
the continental shelf in 1945, on the basis of the generous concept of
‘adjacency’. Unsurprisingly other states were ready to claim the biological
resources of the adjacent waters or ‘epicontinental sea’ by a general
parity of reasoning. Secondly, the US produced a Fisheries Proclamation
also of 28 September 1945,125 which empowered the government to
establish ‘explicitly bounded’ conservation zones in areas of the high
seas ‘contiguous to the United States’.
Beginning in 1946 a number of Latin American states made claims to the
natural resources of the epicontinental sea, in effect a fishery
conservation zone of 200nm breadth.126 Icelandic legislation on these
lines was adopted in 1948. The tendency was initially incoherent.
Adherents were scattered and the legal quality of some of the claims was
uncertain and varied. Some, for example the Peruvian claim, were on
one view an extended territorial sea with certain concessions to overflight
and free navigation. In 1970 nine out of 20 Latin American states
subscribed to the Montevideo Declaration on the Law of the
Sea,127 which asserted a 200nm zone, involving ‘sovereignty and
jurisdiction to the extent necessary to conserve, develop and exploit the
natural resources of the maritime area adjacent to their coasts, its soil
and its subsoil’, but without prejudice to freedom of navigation and
overflight.
Meanwhile the fishery conservation zone was attracting support as
customary law. In the Fisheries Jurisdiction cases an Icelandic fishing
zone 50nm in breadth was held to be not opposable to the UK and
Germany as a consequence of a 1961 bilateral agree-ment.128 The Court
avoided taking a position on the validity of the Icelandic claim in general
international law.129 But the Court went half-way, upholding as customary
law ‘preferential rights of fishing in adjacent waters in favour of the
coastal state in a situation of special dependence on its coastal fisheries,
this preference operating in regard to other states concerned in the
exploitation of the same fisheries’.130 The status of fishery zones in
custom was also recognized by the Court in Jan Mayen.131 Thus the
References
(p. 276) concept of preferential fishing rights seems to have survived in
customary law despite its absence from UNCLOS.132
But the development of 200nm fishery zones has been made largely
redundant by the preponderance of EEZs. By 2010 only 14 states
retained fishing zones of up to 200nm.133 The adherents to such zones
included the US,134 Japan, and certain EU members.135 The UK claims a
200nm fishing zone, together with a 200nm fishery conservation zone in
respect of the Falkland (Malvinas) Islands.136
(C) The Eez as an Established Zone137
The increase in claims to exclusive rights in respect of the fisheries in an
adjacent maritime zone, described above, led eventually to claims
encompassing all natural resources in and of the seabed and superjacent
waters in a zone 200nm in breadth. By 1972 this development was
presented, in more or less programmatic form, as a ‘patrimonial
sea’,138 or ‘economic zone’.139
At UNCLOS III there was widespread support for the EEZ, and UNCLOS
Articles 55 to 75 provide a detailed structure. The zone is to extend no
further than 200nm from the baselines of the territorial sea. It is not
defined as a part of the high seas (Article 86) and is sui generis. But
apart from the freedom of fishing, the freedoms of the high seas apply
(Article 87). The position of the coastal state is described as follows in
Article 56(1):
In the EEZ, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the waters
superjacent to the sea-bed and of the sea-bed its sub-soil, and with regard to
other activities for the economic exploitation and exploration of the zone, such as
the production of energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of the present
Convention with regard to:
References
(p. 277) (i) the establishment and use of artificial islands, installations and
structures;
(ii) scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
No less than 137 states claim an EEZ and these claims are recognized
by states generally. Thus the EEZ forms part of customary law, as has
been recognized by the International Court140 and by the US.141 The
customary law version of the concept is closely related to the version
which emerged within UNCLOS III.
Both under UNCLOS and customary law the zone is optional and its
existence depends upon an actual claim. Certain states, such as
Canada, Germany, and Japan, are content to maintain 200-mile
exclusive fishing zones.
When claimed, an EEZ co-exists with the regime of the continental shelf
which governs rights with respect to the seabed and the subsoil
(UNCLOS Article 56(3)). It may also co-exist with a contiguous zone out
to 24nm.
The US initially took the view that ‘highly migratory species’, including the
commercially important tuna, were excluded from the jurisdiction of the
coastal state, and therefore available for foreign distant water fishing
fleets.142 This position became increasingly untenable; it was
contradicted by the provisions of UNCLOS Article 64 and is not reflected
in state practice.143
The legal regime of the EEZ has various facets. UNCLOS Article 60
provides (in part) as follows:
1. In the EEZ, the coastal State shall have the exclusive right to
construct and to authorise and regulate the construction, operation
and use of:
(a) artificial islands;
(b) installations and structures for the purposes provided
for in Article 56 and other economic purposes;
(c) installations and structures which may interfere with the
exercise of the rights of the coastal State in the zone.
2. The coastal State shall have exclusive jurisdiction over such
artificial islands, installations and structures, including jurisdiction
with regard to customs, fiscal, health, safety and immigration laws
and regulations.
The same article confirms that artificial islands, installations, and
structures have no territorial sea of their own and do not affect the
delimitation of the territorial sea, EEZ, or continental shelf (paragraph 8).
References
(p. 278) Article 61 elaborates upon coastal state responsibility in
managing the living resources in the zone via its duty to ‘ensure through
proper conservation and management measures that the maintenance of
the living resources in the EEZ is not endangered by over-exploitation’.
Similarly, Article 62 requires the coastal state to promote the optimum
utilization of the living resources in the zone. In particular it is provided
that:
2. The coastal State shall determine its capacity to harvest the living resources of the
exclusive economic zone. Where the coastal State does not have the capacity to harvest
the entire allowable catch, it shall, through agreements or other arrangements and
pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give
other States access to the surplus of the allowable catch, having particular regard to the
provisions of Articles 69 and 70, especially in relation to the developing States
mentioned therein.
The allocation of the respective rights and duties of the coastal state and
those of other states in the zone involves a delicate balancing process
which is articulated in fairly general terms in the provisions of the
Convention.144 Article 58 provides as follows:
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy,
subject to the relevant provisions of this Convention, the freedoms referred to in Article
87 of navigation and overflight and of the laying of submarine cables and pipelines, and
other internationally lawful uses of the sea related to these freedoms, such as those
associated with the operation of ships, aircraft and submarine cables and pipelines, and
compatible with the other provisions of this Convention.
…
3. In exercising their rights and performing their duties under this Convention in the
exclusive economic zone, States shall have due regard to the rights and duties of the
coastal State and shall comply with the laws and regulations adopted by the coastal
State in accordance with the provisions of this convention and other rules of international
law in so far as they are not incompatible with this Part.145
Article 59 appears under the rubric ‘basis for the resolution of conflicts
regarding the attribution of rights and jurisdiction in the EEZ’ and
provides:
In cases where this Convention does not attribute rights or jurisdiction to the coastal
State or to other States within the exclusive economic zone, and a conflict arises
between the interests of the coastal State and any other State or States, the conflict
should be resolved on
References
(p. 279) the basis of equity and in the light of all the relevant circumstances, taking into
account the respective importance of the interests involved to the parties as well as to
the international community as a whole.
The coastal state has the power to take reasonable measures of
enforcement of its rights and jurisdiction within the zone in accordance
with the standards of general international law and UNCLOS itself (Article
73).
(D) The Eez and Continental Shelf Compared
Comparison of the legal concepts of the continental shelf and EEZ is
instructive. They co-exist both in the sphere of customary law and under
UNCLOS, and contain significant elements of similarity and
interpenetration. Both concepts focus upon control of economic
resources and are based, in varying degrees, upon adjacency and the
distance principle.146 The EEZ includes the continental shelf interest in
the seabed of the 200nm zone.
However, there are significant points of distinction:
(1) The EEZ is optional, whereas rights to explore and exploit the
resources of the shelf inhere in the coastal state by operation of
law. Thus several states of the Mediterranean have shelf rights
unmatched by an EEZ (which is less relevant in semi-enclosed
seas in any case).
(2) Shelf rights exist beyond the limit of 200nm from the pertinent
coasts when the continental shelf and margin extend beyond that
limit. Consequently, within the UNCLOS regime the rights of the
International Sea-bed Authority must be reconciled with those of
the coastal state.
(3) The EEZ regime involves the water column and consequently
its resources (apart from sedentary species of fish) are subject to
the rules about sharing the surplus of the living resources of the
EEZ with other states and, in particular, with land-locked and
geographically disadvantaged states of the same region or
subregion (UNCLOS Articles 62, 68, 69, 70, and 71).
(4) The EEZ regime confers upon coastal states a substantial
jurisdiction over pollution by ships, and also greater control in
respect of marine scientific research.
5. Other Zones for Special Purposes
The twentieth century produced a number of national claims to noncontiguous, but adjacent, zones for special purposes.
References
(p. 280) (A) Security Zones
Defence zones147 in polygonal or similar forms extending beyond the
territorial sea, and zones for purposes of air identification148 have made
their appearance in the practice of states. Insofar as those zones
represent claims to extra-territorial jurisdiction over nationals they do not
necessarily conflict with general international law, and, furthermore,
groups of states may co-operate and be mutually obligad to respect such
zones by convention. Again, such zones may take the form of a lawful
aspect of belligerent rights in time of war. Otherwise such zones would be
incompatible with the status of waters beyond the limit of the territorial
sea, at least if they involved the application of powers of prevention or
punishment in regard to foreign vessels or aircraft .
(B) Other Miscellaneous Claims
Evidently the period 1945–82 saw a growth not only in the extent of
seaward claims but in new types of maritime zone. To the simple longestablished picture of territorial sea and internal waters were added the
four newcomers discussed here. The widespread ratification of UNCLOS
has done much to stabilize the law, and for the moment it seems unlikely
that new exclusive claims to high seas resources will be made. Yet new
developments cannot be categorically excluded in a dynamic customary
law system. Chile’s claim to a so-called ‘Presencial Sea’ is perhaps a
case in point, although it has been authoritatively explained as a nonexclusive zone of interest and not a territorial claim.149
Footnotes:
1
Generally: Nordquist (ed), United Nations Convention on the Law of
the Sea 1982 (1985); O’Connell, 1–2 The International Law of the
Sea (ed Shearer, 1982, 1984); Platzöder (ed), 1–17 Third United Nations
Conference on the Law of the Sea (1982–88); Kittichaisaree, The Law of
the Sea and Maritime Boundary Delimitation in South-East Asia (1987);
Dupuy & Vignes (eds), 1–2 A Handbook on the New Law of the
Sea (1991); Lucchini & Voelckel, 1–2 Droit de la Mer (1990,
1996); Churchill & Lowe, The Law of the Sea (3rd edn, 1999); Roach &
Smith, United States Responses to Excessive Maritime Claims (2nd edn,
1996); UN, Handbook on the Delimitation of Maritime Boundaries (2000);
Coustère, Daudet, Dupuy, Eisemann & Voelckel (eds), La Mer et son
droit (2003); Prescott & Schofield, The Maritime Political Boundaries of
the World (2nd edn, 2005); Rothwell & Stephens, The International Law
of the Sea (2010).
2
Other terms in use included the ‘marginal sea’, and ‘territorial waters’.
The term ‘territorial waters’ was used occasionally in national legislation
to describe internal waters, or internal waters and the territorial sea
combined. Cf Fisheries (UK v Norway), ICJ Reports 1951 p 116, 125.
3
The marine or nautical mile (nm) is equivalent to 1,852 metres.
National definitions have historically varied, however, this value was
approved by the International Hydrographic Conference in 1929: see
International Hydrographic Organization (IHO), Hydrographic Dictionary,
Special Publication No 32 (5th edn, 1994) 116. Although a nautical mile is
not an SI unit it has been accepted for use by the General Conference on
Weights and Measures as defined by the
IHO; www.bipm.org/en/si/si_brochure/chapter4/table8.html.
4
29 April 1958, 516 UNTS 205.
5
10 December 1982, 1833 UNTS 3, Art 311.
6
GCTS, Art 21; UNCLOS, Art 2.
7
Gidel, 3 Droit international public de la mer (1934) 181; O’Connell
(1971) 45 BY 303; 1 O’Connell (1982) 59.
8
GCTS, Art 2; UNCLOS, Art 2.
9
Bynkershoek, De Dominio Maris (1702, tr Magoffin 1923) ch 2.
10
This is the view of Walker (1945) 22 BY 210. The concept of actual
control is probably referable to the diplomatic practice of Holland and
France in the 17th and 18th centuries.
11
So also Sweden, at least after 1779. Vattel adopted the theory of a
maritime belt, but regarding breadth concluded that ‘all that can
reasonably be said, is, that, in general, the dominion of the state over the
neighbouring sea extends as far as her safety renders it necessary and
her power is able to assert it’: Vattel, Le Droit des gens (1758, tr Anon
1797) I.xxiii.§289.
12
Kent (1954) 48 AJIL 537; O’Connell (1971) 45 BY 303, 320–3.
13
Similar views were expressed by Azuni in Sistema universale dei
principii del diritto marittimo dell’Europa (1795, tr Johnson 1806).
Also: Kent (1954) 48 AJIL 537, 548.
14
1 Hyde 455. See also US Proclamation of Neutrality, 22 April 1793,
which refers to the range of a cannon-ball, ‘usually stated at one sea
league’.
15
The Twee Gebroeders (1800) 3 C Rob 162; (1801) 3 C Rob 336; The
Anna(1805) 5 C Rob 373; The Brig Ann (1815) 1 Gallison’s US Cir Ct R
62. Also McNair, 1 Opinions 331.
16
In the case of Denmark and Norway, probably in 1812. Also:
Fulton, The Sovereignty of the Sea (1911) 566ff; Verzijl, 3 International
Law in Historical Perspective (1970) 60–5.
17
Cf the Portuguese six-mile limit for customs and neutrality:
Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927)
41. The Spanish six-mile limit for a territorial sea appears to have
originated in customs legislation. The 12-mile zone claimed by Imperial
Russia related to customs and fisheries legislation.
18
Such general recognition certainly existed by 1920 and perhaps as
early as 1880. Generally: Masterson, Jurisdiction in Marginal Seas (1929)
375ff. In 1914, Chile, which already had a territorial sea with a three-mile
limit, declared the same limit for purposes of neutrality. British sources
often refer to ‘territorial jurisdiction’.
19
GCTS, Art 3; UNCLOS, Art 5; ILC Ybk 1956/II, 266; Waldock (1951)
28 BY 114, 131–7; McDougal & Burke, The Public Order of the
Oceans (1962) 305ff; Gihl (1967) 11 Scan SL 119.
20
Art 5 states this as a definition and not as presumptive evidence.
See Li Chia Hsing v Rankin (1978) 73 ILR 173. The relevant
subcommittee of the Hague Codification Conference entered a proviso
‘provided the latter line does not appreciably depart from the line of mean
low-water spring tides’; however, this was neither discussed nor adopted
by the Second Committee given disagreement between states regarding
the breadth of the territorial sea: 1 Hackworth 643–4; and the critical
comment in McDougal & Burke (1962) 322–6. In its 1989 Baselines
Report, the UN Office for Ocean Affairs and the Law of the Sea describes
‘[t]he low-water mark on a chart’ as ‘the line depicting the level of chart
datum’, going on to endorse the IHO reference to ‘a plane so low that the
tide will not frequently fall below it’. The UN Report identifies four
possibilities consistent with this general requirement: the lowest
astronomical tide (LAT); mean low-water springs (MLWS); mean lower
low-water (MLLS); and mean sea level (MSL). These widely accepted
chart data are drawn from the British Admiralty Tables, however, there
may be other options open to states: UN Office for Ocean Affairs and the
Law of the Sea, Baselines: An Examination of the Relevant Provisions of
the United Nations Convention on the Law of the Sea (1989) 3, 43.
21
ICJ Reports 1951 p 116. For contemporary comment: Waldock (1951)
28 BY 114; Hudson (1952) 46 AJIL 23; Johnson
(1952) ICLQ 145; Evensen (1952) 46 AJIL 609; Wilberforce (1952)
38 GST 151; Auby (1953) 80 JDI 24; Fitzmaurice (1953)
30 BY 8; Fitzmaurice (1954) 31 BY 371;
Lauterpacht, Development (1958) 190–9.
22
Under the 1935 decree (not strictly enforced until 1948), 48 fixed
points were employed: 18 lines exceeded 15nm in length, one was 44nm
in length. The decree refers to a fisheries zone, but both parties assumed
in argument that it delimited the territorial sea: ICJ Reports 1951 p 116,
125.
23
Ibid, 138, but see 171–80 (Judge McNair, diss).
24
Ibid, 206. Also the Anglo-French Continental Shelf (1978) 54 ILR 6,
74–83 on acceptance of a basepoint by conduct.
25
The later references to the attitude of other governments appear to
have been partially intended as evidence of legality: ICJ Reports 1951 p
116, 139.
26
Ibid, 127.
27
Ibid, 128.
28
See Waldock (1951) 28 BY 114, 132–7.
29
29
ICJ Reports 1951 p 116, 129–30.
30
Ibid, 131.
31
Ibid, 133.
32
Ibid, 133.
33
See also the statement that ‘in these barren regions the inhabitants of
the coastal zone derive their livelihood essentially from fishing’: ibid, 128.
34
Roach & Smith (2000) 31 ODIL 47. Generally: US Department of
State, Limits in the Seas No 36 and revisions; UN Division for Ocean
Affairs and the Law of the Sea, Deposit of Charts/Lists of
Coordinates, www.un.org/Depts/los/LEGISLATIONANDTREATIES/depositpublicity.htm
35
GCTS, Art 13; UNCLOS, Art 9.
36
GCTS, Art 7; UNCLOS, Art 10.
37
Gidel (1934) 62ff; McDougal & Burke (1962) 446–564; Fulton (1911)
537ff.
38
Denmark and Norway, 4nm (1745); Sweden, 4nm (1779); Spain, 6nm
(1760).
39
1 Hyde 455. Also US Proclamation of Neutrality, 22 April 1793, which
refers to the range of a cannonball, ‘usually stated at one sea league’.
40
Cf Moore, 1 Digest 706–7.
41
An isolated case of reliance on the rule to justify a limit of 12nm
occurred in 1912, when Russia referred to the rule to justify extensions of
jurisdiction for customs and fishery purposes: 1 Hackworth 635.
Also Costa Rica Packet (1902), in Moore, 4 Int Arb 4948; The
Alleganean, in Moore, 4 Int Arb 4332.
42
Spain had a 6-mile limit; Norway, Denmark, and Sweden claimed 4
nm. Cf (1926) 20 AJIL Sp Supp 73–4; Gidel (1934) 69ff, on treaty
practice.
43
E.g. Hall, International Law (1880) 191–2; Westlake, International
Law (1904) part I, 184–6. Also Fulton (1911) 664.
44
For the views expressed: (1930) 24 AJIL Sp Supp 253; 1 Hackworth
628.
45
45
ILC Ybk 1956/II, 265–6.
46
For information on maritime claims: UN Office of Legal Affairs, Law of
the Sea Bulletin. The current situation is as follows: Jordan claims 3nm;
Greece claims 6nm. Six states claim 200nm: Benin, Ecuador (only in one
area), El Salvador, Liberia, Peru, Somalia. The remainder claim 12nm.
47
Presidential Proclamation No 5928, 27 December 1988, 54 FR 777.
48
UNCLOS, Art 310, allows states to make ‘declarations or statements,
however phrased or named, with a view, inter alia, to the harmonization
of its laws and regulations with the provisions of this Convention’. Such
declarations or statements may clarify how zones characterized
differently at the national level might correspond with those under
UNCLOS. In Anglo-Norwegian Fisheries, the Court took the fisheries
zone delimited by the Norwegian Royal Decree of 1935 as ‘none other
than the sea are which Norway considers to be her territorial sea’: ICJ
Reports 1951 p 116, 125.
49
In particular: Gidel (1934) 532ff; Waldock (1951) 28 BY 114, 137–
42; Fitzmaurice (1959) 8 ICLQ 73, 79–85; McDougal & Burke (1962)
327–73; 4 Whiteman 207–33; Bouchez, The Regime of Bays in
International Law (1964); Blum, Historic Titles in International Law (1965)
261–81; Gihl (1967) Scan SL 119; Edeson (1968–69) 5 AYIL 5; 1
O’Connell (1982) 338–416; Westerman, The Juridical Bay (1987).
50
UNCLOS, Art 10(2). On the application of this provision: Post Office v
Estuary Radio [1967] 1 WLR 1396. Also: US v California (1952) 57 ILR
54; US v California, 381 US 139 (1965); US v Louisiana, 389 US 155
(1967); US v Louisiana, 394 US 11 (1969); Texas v Louisiana, 426 US
465 (1976). In Australia: Raptis v South Australia (1977) 69 ILR 32.
51
North Atlantic Fisheries (1910) 11 RIAA 167, 199; US v Louisiana, 394
US 11, 48–55 (1969); Raptis v South Australia (1977) 69 ILR 32. Cf 1
O’Connell (1982) 384; Westerman (1987) 79–98.
52
53
McNair, 1 Opinions 353–6, 360.
ICJ Reports 1951 p 116, 131. Also ibid, 163–4 (Judge McNair).
However Judge Read regarded the rule as customary: ibid, 188.
54
54
For bays claimed as ‘historic bays’ (over 30 in all): Jessup (1927)
383–439; Colombos, International Law of the Sea (6th edn, 1967) 180–8.
Further: Gidel (1934) 621–63; McDougal & Burke (1962) 357–68
(discounting the basis in authority of some claims); Goldie (1984)
11 Syracuse JILC 211. The Central American Court of Justice in 1917
declared that the Gulf of Fonseca was ‘an historic bay possessed of the
characteristics of a closed sea’ and further, that without prejudice to the
rights of Honduras, El Salvador and Nicaragua had a right of coownership in the extra-territorial waters of the Gulf. See the Land, Island
and Maritime Frontier Dispute (El Salvador/Honduras), ICJ Reports 1992
p 351, 588–605. On claims to treat the Straits of Tiran and the Gulf of
Aqaba as a closed sea: Gross (1959) 53 AJIL 564, 566–72; Selak (1958)
52 AJIL 660, 689–98.
55
See the declaration on Art 12 by Venezuela: McDougal & Burke
(1962) 1184.
56
GCTS, Art 10; UNCLOS, Art 121(1); ILC Ybk 1956/II, 270. Also: Gidel
(1934) 670ff; McNair, 1 Opinions, 363ff; Fitzmaurice (1959) 8 ICLQ 73,
85–8; McDougal & Burke (1962) 373, 391–8; Bowett, The Legal Regime
of Islands in International Law (1979); Symmons, The Maritime Zones of
Islands in International Law (1979); Jayewardene, The Regime of Islands
in International Law (1990).
57
UNCLOS, Art 121(2).
58
UN Office for Ocean Affairs and the Law of the Sea, Baselines (1989)
61.
59
3 Virginia Commentary (1985) 328–36.
60
Soons & Kwiatkowska (1990) 21 NYIL 139, 160–9.
61
Hansard, HC Deb 21 July 1997 vol 298 cc397–8W: ‘The United
Kingdom’s fishery limits will need to be redefined based on St Kilda,
since Rockall is not a valid base point for such limits under article 121(3)
of the convention.’ Cf [1997] UKMIL 591, 599–600.
62
E.g. Japan’s claims to an extended continental shelf in respect of
Okinotorishima, as indicated in its submission to the Commission on the
Limits of the Continental Shelf on 12 November 2008. This claim has
been protested by China (Letter of the Permanent Mission to the UN of
the People’s Republic of China to the UN Secretary-General, 6 February
2009, CML/2/2009 [translation]) and the Republic of Korea (Letter of the
Permanent Mission to the UN of the Republic of Korea to the UN
Secretary-General, 27 February 2009, MUN/046/2009).
63
29 April 1958, 499 UNTS 311. In the context of maritime delimitation,
small islands and rocks are frequently ignored or discounted:
e.g. Maritime Delimitation in the Black Sea (Romania v Ukraine), ICJ
Reports 2008 p 61 (giving nil effect to Serpents’ Island beyond 12nm),
and further: chapter 12.
64
Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, ICJ Reports 2001 p 40, 100–3. Also : Marston (1972–73)
46 BY 405; Weil, 1 Liber Amicorum Judge Shigeru Oda (2002) 307;
Guillaume, Mélanges offerts à Laurent Lucchini et Jean-Pierre
Quéneudec (2003) 287.
65
Marston (1972–73) 46 BY 405. Also: Qatar v Bahrain, ICJ Reports
2001 p 40, 100–3.
66
GCTS, Art 11; UNCLOS, Art 13. Also Anglo-Norwegian Fisheries, ICJ
Reports 1951 p 116, 128, and cf R v Kent Justices, ex p Lye [1967] 2 QB
153; US v Louisiana, 394 US 11 (1969).
67
Gidel (1934) 706–27; Waldock (1951) 28 BY 114, 142–7; Evensen,
UNCLOS, 1 Official Recs (1958) A/ CONF.13/18, 289; Fitzmaurice (1959)
8 ICLQ 73, 88–90; McDougal & Burke (1962) 373–87; ILC Ybk 1953/ II,
69, 77; O’Connell (1971) 45 BY 1; Hodgson & Alexander, Law of the Sea
Institute, Occasional Paper No 13 (1972); Bowett(1979) 73–113;
Symmons (1979) 62–81; Anand (1979) 19 Indian JIL 228;
Lattion, L’Archipel en droit international (1984); Herman (1985)
23 CYIL 172; Rajan (1986) 29 GYIL 137; Jayewardene (1990) 103–72;
Churchill & Lowe (3rd edn, 1999) 118–31; Jiménez Piernas, ‘Archipelagic
Waters’ (2009) MPEPIL.
68
ILC Ybk 1956/II, 270.
69
Philippines claim: ILC Ybk 1956/II, 69–70. For the Indonesian claim
and the UK protest: (1958) 7 ICLQ 538.
70
22 coastal states parties to UNCLOS claim archipelagic status.
In Qatar v Bahrain, the Court declined to consider whether Bahrain,
which had not formally claimed status as an archipelagic state, was
entitled to do so: ICJ Reports 2001 p 40, 97.
71
UNCLOS, Art 53(12). For archipelagic sea lanes passage: chapter 13.
72
GCTS, Art 14; UNCLOS, Art 17.
73
Jessup (1927) 75–112, 241–352; Gidel (1934) 361–492; François,
ILC Ybk 1951/II, 91–4; Fitzmaurice (1959) 8 ICLQ 73, 108–21; Lowe
(1981) 52 BY 109; 2 O’Connell (1984) 1034–61; Roach & Smith (2nd
edn, 1996) 163–72.
74
Fitzmaurice (1959) 8 ICLQ 73, 111–13; Sørensen (1960) 101
Hague Recueil 145, 155–8. Also: Sorensen and Jensen (1991) 89 ILR
78.
75
Gidel (1934) 372ff deserves credit for giving the concept authority and
coherence. Cf the materials of the Hague Codification Conference; and
Renault (1889–92) 11 Ann de l’Inst 133, 150. Colombos (6th edn, 1967)
111–13 gives rather idiosyncratic treatment, as do McDougal & Burke
(1962) 565–630.
76
UN Division for Ocean Affairs and the Law of the Sea, table of claims
to maritime
jurisdiction, www.un.org/Depts/los/LEGISLATIONANDTREATIES/claims.htm
77
Shearer (2003) 17 Ocean Ybk 548.
78
Institut de droit international, 3 Projet de règlement relatif à la mer
territoriale en temps de paix (1928) Ann de l’Inst 755; Caminos,
‘Contiguous Zone’ (2008) MPEPIL.
79
ILC Ybk 1956/II, 295. Also: Oda (1962) 11 ICLQ 131, 147–8.
80
On British and American legislation and the diplomatic repercussions:
Masterson (1929).
81
See the opinion excerpted in 1 Hackworth 657–9.
82
Helsingfors Convention for the Suppression of the Contraband Traffic
in Alcoholic Liquors, 19 August 1925, 42 LNTS 75. On the ‘liquor treaties’
concluded by the US: Masterson (1929) 326ff.
83
The type had appeared in the ILC draft articles in 1955, but was
deleted from the draft in 1956: ILC Ybk 1956/II, 295. Cf Fitzmaurice
(1959) 8 ICLQ 73, 117–18 (critical of inclusion); Oda (1962) 11 ICLQ 131,
146.
84
GAOR, 8th Sess, Supplement No 9, A/2456, §111.
85
ILC Ybk 1956/II, 294–5.
86
Gidel (1934) 455–7, 476, 486; Fitzmaurice (1959) 8 ICLQ 73, 117.
87
UNCLOS, Arts 56, 61, 73.
88
UNCLOS, Art 192.
89
UNCLOS, Art 94(1)–(2).
90
UNCLOS, Art 211.
91
Oda (1962) 11 ICLQ 131; McDougal & Burke (1962) 621–30.
92
(1959) 8 ICLQ 73, 113. Also: Fitzmaurice (1954) 31 BY 371, 378–9; 2
O’Connell (1984) 1057–9.
93
Oda (1962) 11 ICLQ 131; 2 O’Connell (1984) 643–4.
94
2 Virginia Commentary (1985) 267–75.
95
Caminos, ‘Contiguous zone’ (2008) MPEPIL.
96
Indeed this will be the case, to a degree, wherever the lateral maritime
boundary between A and B departs from equidistance. The tribunal
in Barbados v Trinidad and Tobago (2006) 45 ILM 798 sought to
eliminate it by tapering the EEZ/shelf boundary to a single point 200nm
from the nearest (Tobago) coast. By contrast in Bangladesh/Myanmar,
ITLOS delimited the grey area by allocating water column rights over that
area to Myanmar and continental shelf rights to Bangladesh: Dispute
concerning Delimitation of the Maritime Boundary between Bangladesh
and Myanmar in the Bay of Bengal, Judgment of 14 March 2012, ITLOS
Case No 16, §§471–6, 506.
97
98
Decree 1836 of 24 February 1944.
Truman Proclamation (1946) 40 AJIL Sp Supp 45; 4 Whiteman 756.
For the background: Hollick (1976) 17 Va JIL 23; Hollick, United States
Foreign Policy and the Law of the Sea (1981). On the impact of the
Proclamation in terms of custom: Crawford & Viles, in Crawford, Selected
Essays (2002) 317.
99
99
Surveys of state practice: 4 Whiteman 752–814; UN Legis Series,
1 The Regime of the High Seas (1951) and Special Supp (1959); UN
Secretariat, Survey of National Legislation Concerning the Seabed and
the Ocean Floor, and the Subsoil thereof, underlying the High Seas
beyond the Limits of Present National Jurisdiction, A/AC.135/11, 4 June
1968; UN Legis Series, National Legislation and Treaties Relating to the
Territorial Sea (1970) 319–476; US Department of State, Limits in the
Seas No 36 and revisions.
100
E.g. Bahamas (1948), Saudi Arabia (1949), Pakistan (1950), India
(1955).
101
See the award in Abu Dhabi (1951) 18 ILR 144. The date at which
the concept of the shelf matured as part of custom may still matter: Re
Seabed and Subsoil of the Continental Shelf Offshore
Newfoundland (1984) 86 ILR 593.
102
For contemporary discussion: Whiteman (1958)
52 AJIL 629; Gutteridge (1959) 35 BY 102; Young (1961) 55 AJIL 359.
103
North Sea Continental Shelf (Federal Republic of
Germany/Netherlands; Federal Republic of Germany/ Denmark), ICJ
Reports 1969 p 3, 39.
104
Anglo-French Continental Shelf (1977) 54 ILR 6; Delimitation of the
Maritime Boundary in the Gulf of Maine Area (Canada/US), ICJ Reports
1984 p 246, 291, 300–3; Maritime Delimitation in the Area between
Greenland and Jan Mayen (Denmark v Norway), ICJ Reports 1993 p 38,
57–9.
105
ICJ Reports 1984 p 246, 288–95.
106
ICJ Reports 1985 p 13, 29–34.
107
Ibid, 29–30, 33, 38, 45.
108
UNCLOS, Arts 55, 86.
109
Cf GCCS, Art 3.
110
UNCLOS, Art 81.
111
Continental Shelf Act 1964; Clark (Inspector of Taxes) v Oceanic
Contractors Inc [1983] 2 AC 130.
112
112
For jurisdiction over shelf resources in federal states: United States v
California, 332 US 19 (1947); United States v Texas, 339 US 707
(1950); United States v Louisiana, 339 US 699 (1950); In re Ownership
and Jurisdiction over Offshore Mineral Rights(1967) 43 ILR 93; Bonser v
La Macchia(1969) 51 ILR 39; Queensland v Commonwealth (1975) 135
CLR 337.
113
Gutteridge (1959) 35 BY 102, 116–19; 1 O’Connell (1982) 498–503;
Brown, 1 Sea-bed Energy and Minerals (1992).
114
ILC Ybk 1956/II, 297–8.
115
This distinction presents difficulties in relation to king crabs: Oda
(1969) 127 Hague Recueil 371, 427–30, and some species of
lobster: Azzam (1964) 13 ICLQ 1453.
116
GCCS, Art 5(4); UNCLOS, Art 60(8) via Art 80.
117
GCCS, Art 5(3); UNCLOS, Art 60(5) via Art 80.
118
GCCS, Art 5(6); UNCLOS, Art 60(7) via Art 80.
119
Treves (1980) 74 AJIL 808; Zedalis (1981) 75 AJIL 926; Treves
(1981) 75 AJIL 933; Brown (1992) 23 ODIL 115, 122–6; Hayashi (2005)
29 Marine Policy 123, 129–30, 131–2.
120
1 O’Connell (1982) 507.
121
On the Channel tunnel project: van den Mensbrugghe (1967)
71 RGDIP 325; Marston (1974–75) 47 BY 290.
122
Further: Jennings (1969) 18 ICLQ 819; 1 O’Connell (1982) 488–95,
509–11; Goldie (1968) 8 NRJ 434; Weissberg (1969) 18 ICLQ 41,
62; Henkin (1969) 63 AJIL 504; Finlay (1970) 64 AJIL 42; Goldie (1970)
1 JMLC 461; Hutchinson (1985) 56 BY 111; Vasciannie (1987)
58 BY 271.
123
According to the UN unofficial table of claims to maritime space, 11
states use 200m depth plus exploitability; a further three use an
exploitability criterion
alone: www.un.org/Depts/los/LEGISLATIONANDTREATIES/claims.htm.
124
There are now 81 states with shelf limits based on Article 76. 46
states have made submissions (some more than one) to the Annex II
Commission: 27 others have submitted preliminary information: ibid.
125
(1946) 40 AJIL Sp Supp 45; 4 Whiteman 954. The Proclamation has
never been implemented by Executive Order.
126
Argentina (1946), Panama (1946), Peru (1947), Chile (1947),
Ecuador (1947), Honduras (1950), El Salvador (1950).
127
Text:(1970) 64 AJIL 1021.
128
Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1974 p 3; Fisheries
Jurisdiction (Germany v Iceland), ICJ Reports 1974 p 175.
129
ICJ Reports 1974 p 3, 35–8 (Judge Ignacio-Pinto); 39 (Judge
Nagendra Singh). In a joint separate opinion five judges expressed the
firm view that no rule of customary law concerning maximum fishery
limits had yet emerged: ibid, 45ff (Judges Forster, Bengzon, Jiménez de
Aréchaga, Nagendra Singh & Ruda).
130
Ibid, 23–31.
131
Jan Mayen, ICJ Reports 1993 p 38, 59, 61–2.
132
For a more sceptical view: Churchill & Lowe (3rd edn, 1999) 285.
133
US Department of State, Limits in the Seas, No 36 and revisions.
134
Fishery Conservation and Management Act 1976; 15 ILM 635. This
legislation has some controversial features: Statement by the President,
ibid, 634.
135
On EU fisheries jurisdiction: Churchill (1992) 23 ODIL 145;
Berg, Implementing and Enforcing European Fisheries Law (1999);
Churchill & Owen, The EC Common Fisheries Policy (2010).
136
Fishery Limits Act 1976 (UK). For the dispute over the Falkland
(Malvinas) Islands: chapter 9.
137
Phillips (1977) 26 ICLQ 585; Extavour, The Exclusive Economic
Zone (1979); Moore (1979) 19 Va JIL 401; Orrego Vicuña (ed), The
Exclusive Economic Zone (1984); Charney (1985) 15 ODIL 233; Orrego
Vicuña (1986) 199 Hague Recueil 11; Smith, Exclusive Economic Zone
Claims (1986); Attard, The Exclusive Economic Zone in International
Law (1987); McLean & Sucharitkul (1988) 63 Notre Dame LR 492;
Orrego Vicuña, The Exclusive Economic Zone (1989); Roach & Smith
(2nd edn, 1996) 173–92.
138
Declaration of Santo Domingo, 9 June 1972, 11 ILM 892; Castañeda
(1972) 12 Indian JIL 535; Nelson (1973) 22 ICLQ 668; Gastines (1975)
79 RGDIP 447; cf the Declaration of Lima, 8 August 1970, 10 ILM 207.
139
Lay, Churchill & Nordquist, 1 New Directions in the Law of the
Sea (1973) 250.
140
Continental Shelf (Tunisia/Libya), ICJ Reports 1982 p 18, 38, 47–9,
79; Gulf of Maine, ICJ Reports 1984 p 246, 294–5; Libya/Malta, ICJ
Reports 1985 p 13, 32–4.
141
US Presidential Proclamation, 10 March 1983, 22 ILM 461.
142
Ibid. Nevertheless, the US conceded that tuna was included in the
EEZ resources of Pacific Island States in the Treaty of Port Moresby, 2
April 1987, 2176 UNTS 173.
143
Burke (1984–85) 14 ODIL 273; Attard (1987) 184–7. The position
was eventually abandoned via a 1996 amendment to the Magnuson–
Stevens Fisheries Management and Conservation Act of 1976: 16 USC §
1802(21).
144
Attard relies on the reference to ‘sovereign rights’ in Art 56(1)(a) to
support a presumption in favour of the coastal state: Attard (1987) 48.
This may be true of the modalities of the recognized rights of the coastal
state, but not when independently constituted rights (like those of landlocked and geographically disadvantaged states) are in question (Arts 69,
70, 71). The general formulations of Art 59 beg the question, but
Churchill & Lowe (3rd edn, 1999) 175–6, hold that the article rules out
any presumption.
145
On the interpretation of Art 58 and various related issues see the M/V
Saiga (No 2) (1999) 120 ILR 145, 188–92.
146
147
Libya/Malta, ICJ Reports 1985 p 13, 33.
See legislation of Ethiopia and South Korea in UN Legis
Series, Laws and Regulations on the Regime of the Territorial Sea (1957)
128, 175; Park (1978) AJIL 866. On maritime security generally:
Klein, Maritime Security and the Law of the Sea (2011).
148
148
Murchison, The Contiguous Air Space Zone in International
Law (1956); 4 Whiteman 495–8; Hailbronner (1983) 77 AJIL 490, 500,
515–19; Dutton (2009) 103 AJIL 691; Pedrozo (2011) 10 Chin JIL 207,
211–13.
149
Kibel (2000) 12 JEL 43.
(p. 281) 12 Maritime Delimitation and Associated
Questions
Coram et judice in alto mare sumus in manu Dei.
1. Introduction1
The rules of entitlement to maritime zones are set out in chapter 11. But a
coastal state may be so located vis-à-vis its neighbours that its potential
zones overlap con-siderably—what may be termed ‘overlapping potential
entitlement’. In fact there is no coastal state in the world that does not
have an overlapping maritime zone with at least one other state (see
Figure 12.1). There is also a question of entitlement vis-à-vis the high
seas and its seabed, an effective delimitation between the coastal states
severally and the international public domain or ‘global commons’, a
commons until recently in sharp retreat.
Most maritime boundaries are determined by agreement and recorded in
a treaty. 2 Many remain undelimited. A significant number are
disputed.3 Resolving such disputes has become an important task for the
International Court and, to a lesser extent, other tribunals.4 A great
variety of geographical situations is encompassed, from (p. 282)
Figure 12.1 Global Maritime Zones
Source: Dr Robin Cleverly, Head, Law of the Sea, UK Hydrographic
Office, Taunton
(p. 283) long-coastline adjacent states crowded together on a concave
coastline5 to small islands facing out into the open ocean.6 Yet courts and
tribunals are expected to decide on maritime delimitation in a principled
way, without recasting geography yet still achieving an equitable result.
The consequence has been a considerable test of judicial technique—or
according to some, a demonstration of its failure.
2. Territorial Sea Delimitation Between Opposite
or Adjacent States7
Delimitation of territorial seas between states opposite or adjacent to
each other is primarily governed by Article 15 of the UN Convention on
the Law of the Sea (UNCLOS),8 which is virtually identical to Article 12(1)
of the Geneva Convention on the Territorial Sea (GCTS)9 and is
considered reflective of customary international law.10 Article 15 provides:
Where the coasts of two States are opposite or adjacent to each other, neither of the two
States is entitled, failing agreement between them to the contrary, to extend its territorial
sea beyond the median line every point of which is equidistant from the nearest points on
the baselines from which the breadth of the territorial seas of each of the two States is
measured. The above provision does not apply, however, where it is necessary by
reason of historic title or other special circumstances to delimit the territorial seas of the
two States in a way which is at variance therewith.
Article 15 stipulates primacy of agreement, and failing that, application of
the principle of equidistance. Departure from the equidistance principle is
possible only where necessary by reason of historic title or other ‘special
circumstances’.11 Thus a presumption of equidistance exists in the case
of the territorial sea, justified by the comparatively small distances
involved.
References
(p. 284) Given the institutional age of the territorial sea, many of the
disputes surrounding its application have been resolved. Major cases
have included Qatar v Bahrain,12 Caribbean Sea,13 Guyana v
Suriname,14 Eritrea v Yemen,15 and Bangladesh/Myanmar16 but several
decisions were handed down pre-UNCLOS, notably the Banks of
Grisbadarna between Norway and Sweden17 and the St Pierre and
Miquelon arbitration between France and Canada.18 Following the Qatar
v Bahrain and Caribbean Sea maritime delimitations, a
methodology19 has developed; in Caribbean Sea the Court considered
the application of the following process in the context of an UNCLOS
Article 15 territorial sea boundary delimitation:
(1) Consideration should first be given to the drawing of a
provisional line of equidistance.20
(2) But the provisional equidistance line may be abandoned due
to special circumstances.21
(3) The tribunal in question may then consider its own means of
delimitation, or adopt those proposed by the parties.22
(4) At all stages, the tribunal will need to take into account
relevant coasts, including the geography of the immediate
coastline, the delimitation of the territorial sea of adjacent states
and geomorphological features of the area adjacent to the
endpoint of a land boundary.23
References
(p. 285) Whether or not there is a formal presumption of equidistance in
territorial sea delimitation may be debated, but it is certainly the norm.
3. Continental Shelf Delimitation Between
Opposite or Adjacent States24
(A) Sources
The continental shelf has its immediate origins in the Truman
Proclamation of 28 September 1945. In a remarkable exercise in
prescience, the Proclamation addressed delimitation in the following
terms:
In cases where the continental shelf extends to the shores of another State, or is shared
with an adjacent State, the boundary shall be determined by the United States and the
25
State concerned in accordance with equitable principles.
At this time there was almost no delimitation practice: the 1942 Gulf of
Paria Treaty, the first seabed delimitation treaty, represented an attempt
by Venezuela and the UK to delimit the Gulf, a shallow inland sea
between the British colony of Trinidad and the Venezuelan coast.26 At its
core, the treaty simply described three lines according to longitude and
latitude, allocating to the UK those areas east and north of these lines.27
Practice was not much further advanced upon consideration by the ILC
beginning in 1953.28 On cartographical advice, the ILC proposed and the
Geneva Conference adopted GCCS Article 6.29 Article 6 applies to those
cases where the ‘same continental shelf ’ extends between opposite or
adjacent states. In separate provisions, it stipulates that the boundary is
determined by agreement but ‘in the absence of agreement, and unless
another boundary line is justified by special circumstances’, the boundary
shall be determined by a median line, that is, a line equidistant from the
nearest points of the baselines from which the breadth of the territorial
sea of each state is measured.
References
(p. 286) In 1969 the International Court rejected the equidistance/special
circumstances rule articulated in Article 6 as a matter of custom,30 and
after many vicissitudes in the cases and doctrine and in the negotiations,
this position was apparently upheld in 1982.31 UNCLOS Article 83(1)
provides:
The delimitation of the continental shelf between States with opposite or adjacent coasts
shall be effected by agreement on the basis of international law, as referred to in Article
38 of the Statute of the International Court of Justice, in order to achieve an equitable
solution.
Article 83(1) appears as an elaborated version of the Truman
Proclamation provision concerned with delimitation. To that extent
UNCLOS Part VI had returned to its customary law origins.32
(B) The Established Approach
In the meantime, practice and case-law had moved on.
In Libya/Malta,33 the Court was called upon to delimit the continental
shelf boundary between the two states. The parties were in agreement
that their dispute was governed by customary international law, with the
Court discerning its reflection in UNCLOS (notably Article 83(1)).34 The
Court went on to emphasize the preference in Article 83(1) for an
‘equitable’ solution to delimitation problems concerning the continental
shelf, and further noted that:
The Convention sets a goal to be achieved, but is silent as to the method to be followed
to achieve it. It restricts itself to setting a standard, and it is left to the States themselves,
or the courts, to endow this standard with specific content.35
The Court held:
Thus the justice of which equity is an emanation, is not abstract justice but justice
according to the rule of law; which is to say that its application should display
consistency and a degree of predictability; even though it looks with particularity to the
peculiar circumstances of an instant case, it also looks beyond it to principles of more
general application.36
Taking account of the differences in coastal length, the Court adopted a
proportionality test to justify deviation from the median line,37 while
stressing that it was not required to achieve a predetermined ratio
between the relevant coasts and the respective continental shelf areas.38
References
(p. 287) As a result of this and subsequent decisions, a ‘received
approach’ has emerged, though it is not invariable.39 This is first to draw
provisionally an equidistance line.40 If this proves inappropriate, the court
or tribunal may use a different method of delimitation, such as the
bisector method, according to which the line is formed by bisecting the
angle created by a linear approximation of coastlines.41 The court may
then move to consider whether the line so created must be adjusted in
the light of ‘relevant circumstances’, such as small islands, maritime
features or coastal geography. An equidistance line is usually seen as the
most equitable starting point for any delimitation. The ‘relevant
circumstances’ that have been produced by custom are similar to the
‘special circumstances’ seen in GCCS Article 6.42
Accordingly, delimitation of the continental shelf is usually done in three
stages. First, the relevant tribunal establishes a provisional delimitation
line based on ‘methods that are geometrically objective and also
appropriate for the geography of the area in which the delimitation is to
take place’.43 This provisional delimitation line is an equidistance line in
case of two adjacent coasts, and a median line when two opposite coasts
are concerned.44 Secondly, the tribunal considers whether there are
‘relevant circumstances’ calling for the adjustment or shifting of the
provisional equidistance line in order to achieve an equitable
result.45 Thirdly, the tribunal verifies that the delimitation line as it stands
does not lead to an inequitable result by reason of any marked
disproportion between the ratio of the respective coastal lengths and the
ratio between the relevant maritime area of each state.46
(C) The Equitable Principles
The notion that an equidistance line is the ordinary starting point for
continental shelf delimitation is only one of the equitable principles
governing the solution under UNCLOS Article 83(1) and customary
international law. The ‘equitable principles’, as defined judicially
since North Sea Continental Shelf, have a normative character as a part
of general international law, and their application is to be distinguished
References
(p. 288) from decision-making ex aequo et bono.47 Nonetheless the
‘principles’ are general in character. As was noted in Libya/Malta, the
term ‘equitable’ in Article 83(1) sets an amorphous
standard.48 Nonetheless, specific criteria or indicia have emerged. These
may be formulated as follows:
(1) Delimitation is to be effected by agreement on the basis of
international law.49
(2) As far as possible neither party should encroach on the natural
prolongation of the other (the principle of non-encroachment).50
(3) As far as possible, there should be no undue cut-off of the
seaward projection of the coast of either of the states concerned.51
(4) Delimitation is to be effected by the application of equitable
criteria and by the use of practical methods capable of ensuring,
with regard to the geographical configuration of the area and other
relevant circumstances, an equitable result.52
(5) There is a mild presumption that the equitable solution is an
equal division of the areas of overlap of the continental shelves of
the states in dispute.53
(D) Relevant Circumstances
The application of equitable principles involves (variously) reference to
the ‘relevant circumstances’, or ‘factors to be taken into account’, or
‘auxiliary criteria’.54 Relevant circumstances recognized by international
tribunals include the following:
(1) the general configuration of the coasts of the parties;55
(2) disregarding or giving less than full effect to incidental features
(e.g. minor offshore islands) which would otherwise have a
disproportionate effect on the delimitation;
References
(p. 289) (3) disparity of coastal lengths in the relevant area;56
(4) the general geographical framework or context;57
(5) the principle of equitable access to the natural resources of
the disputed area.58
Factors sometimes referred to, but not as well accepted, include:
(6) the geological structure of the sea-bed and its geomorphology
(or surface features);59
(7) the conduct of the parties, such as the de factoline produced
by the pattern of grants of petroleum concessions in the disputed
area;60such concessions need to be, however, premised on
express or tacit agreement between the parties;61
(8) the incidence of natural resources in the disputed area;62
(9) defence and security interests of the states in dispute;63
(10) navigational interests of the states in dispute;64
(11) consistency with the general direction of the land boundary;65
(12) maritime delimitations already effected in the region.66
Some comment is called for on several of these.
As to the second factor, given a geographical situation of quasi-equality
as between coastal states, it is often necessary to abate the effects of an
incidental special feature from which an unjustifiable difference of
treatment would result. This principle has been employed to avoid, or at
least to diminish, the effects of a concave coast,67 the location of islands
of state A near the coast of state B68 and the eccentric alignment of
References
69
(p. 290) small islands lying off a peninsula.69 On occasion, the effect of a
group of islands has been reduced by half when the geography was not
markedly eccentric.70
As to existing or reasonably-suspected incidence of resources, resourcerelated criteria have been treated much more cautiously by international
courts and tribunals, which have not generally applied this factor as a
relevant circumstance—at least explicitly.71 An exception—concerning
delimitation within 200nm—was Jan Mayen,, where a portion of the line
was adjusted to a take account of Danish access to an established
capelin fishery.72 Thus in the context of a single maritime boundary,
considerations relating to the EEZ determined the location of a shelf
boundary.
It is to an extent misleading to talk of a recognized canon of relevant
circumstances justifying deviation from the provisional line. As with
delimitation in the territorial sea, the list of relevant circumstances is not
closed. However an outer limit has been imposed by Libya/Malta, where
the Court remarked:
[A]lthough there may be no legal limit to the considerations which States may take
account of, this can hardly be true for a court applying equitable procedures. For a court,
although there is assuredly no closed list of considerations, it is evident that only those
that are pertinent to the institution of the continental shelf as it has developed within the
law, and to the application of equitable principles to its delimitation, will qualify for
inclusion. Otherwise, the legal concept of continental shelf could itself be fundamentally
changed by the introduction of considerations strange to its nature.73
Irrelevant factors include the population, extent of hinterland or
development status of the coastal state.74
(E) Proportionality75
In North Sea Continental Shelf the Court stated that one of the factors ‘to
be taken into account’ in delimitation is ‘the element of a reasonable
degree of proportionality, which a delimitation in accordance with
equitable principles ought to bring about between the extent of the
continental shelf areas appertaining to the coastal State and the length of
the coast measured in the general direction of the coastline, account
being taken for this purpose of the effects, actual or prospective, of any
other continental
References
(p. 291) shelf delimitations between adjacent States in the same
region’.76 Proportionality, however, is not an independent principle of
delimitation (based on the ratio of the lengths of the respective coasts),
but only a test of the equitableness of a result arrived at by other
means.77 This process of ex post facto verification of a line arrived at on
the basis of other criteria may take two forms. Exceptionally, it may take
the form of a ratio loosely based on the lengths of the respective
coastlines.78 More generally, it takes the form of vetting the delimitation
for evident disproportionality resulting from particular geographical
features.79 If coasts are not born equal, delimitations are to achieve
proportionality—but not to have it thrust upon them.80
(F) Application of the Equitable Principles and Relevant
Circumstances
The International Court has emphasized that there must be a process of
balancing up all pertinent considerations wherein the relative weight to be
given to the various principles and factors varies with the
circumstances.81 The practical application of the equitable principles
normally involves drawing a boundary line and the method chosen will be
the method (or combination of methods) which will produce an equitable
result. Methods available include a median or equidistance line, a median
line subject to a factor of equitable correction, a perpendicular to the
general direction of the coast, using a bisector of the angle of the lines
expressing the general direction of the relevant coasts82 and the creation
of a zone of joint development or joint access to resources.83
(G) The Concept of Natural Prolongation84
A further factor is that of natural prolongation, but its precise relevance is
problematic. Its initial significance, reflected in North Sea Continental
Shelf, was that shelf was seen as a physical or geomophological feature
appurtenant to the land territory and as a natural prolongation of land
territory into and under the sea: states lacking the
References
(p. 292) feature had no shelf entitlement.85 This encouraged the view that
geological factors should enjoy qualified pre-eminence in the process of
delimitation. In practice, these formulations constitute no more than a
simple epitome of the shelf concept and the root of title of the coastal
state. Indeed, starting with the Libya/Malta the International Court has
stressed the principle of distance as a basis of entitlement and concluded
that, within the areas at a distance of under 200nm from either of the
coasts in question, there is no role for geological or geophysical factors
either in terms of verifying title or as factors in delimitation.86 It has also
been established that natural prolongation is not as such a test of
equitableness.87 Even when the seabed contains marked discontinuities,
these will not play any significant role as an equitable criterion, unless
they ‘disrupt the essential unity of the continental shelf ’ (and in practice
they rarely do),88 or occur outside areas within 200nm of the coasts in
question.89
(H) Continental Shelf Delimitation Beyond 200nm90
Delimitation of the continental shelf beyond the 200nm line is a complex
process legally, geographically, and geologically. The criteria for
determining the outer limits of the continental shelf are set out in
UNCLOS Article 76. In contrast with continental shelf delimitation within
200nm from the baseline, when a coastal state wants to establish the
outer limits of its continental shelf beyond 200nm, it has to submit
particulars of such limits to the Commission on the Limits of the
Continental Shelf.91 Based on the file, the Commission makes
recommendations, and when these are accepted and implemented by
the state, the limits of the shelf become final and binding.92
The procedure before the Commission is available only for noncontentious delimitation. The Court of Arbitration in St Pierre and
Miquelon declared itself not competent to comment upon the arguments
regarding French rights to continental shelf areas beyond the 200nm limit
because any such decision would have constituted a pronouncement
involving a delimitation not ‘between the parties’ but between each one of
them and the Commission, representing the international
community.93 Conversely, the Arbitration Tribunal in Newfoundland and
Labrador v Nova Scotia found itself able to engage in delimitation beyond
the 200nm line. It gave two reasons: first, it was a national and not an
international tribunal; and second, it was called to specify the offshore
areas of the two parties inter se for the purposes of the Accord Acts,
which it could do by providing that the line did not extend beyond the
point of
References
(p. 293) intersection with the outer limit of the continental margin
determined in accordance with international law.94 The second reason is
compelling, and the St Pierre and Miquelon decision is in this as in other
respects eccentric. However, in Caribbean Sea, the Court indicated that
the delimitation line could not extend more than 200nm because claims
to outer continental shelf had to be submitted to the Commission.95 The
situation is slightly different again with respect to the International
Tribunal for the Law of the Sea (ITLOS). In Bangladesh/Myanmar, the
Tribunal confirmed that it possessed jurisdiction to delimit the continental
shelf beyond 200nm at least as between adjacent states. More
controversial was whether the jurisdiction should be exercised.96 The
Tribunal eventually decided that it was appropriate to engage in
delimitation beyond the 200nm limit, as delimitation would not impede the
Commission in carrying out its functions;97 furthermore, it was noted,
without ITLOS intervention, the shelf might never been delimited, due to
a lack of consent to the Commission’s consideration by the two coastal
states.98
4. Exclusive Economic Zone Delimitation
Between Adjacent or Opposite States99
The provisions of UNCLOS Article 74 concerning delimitation of the
Exclusive Economic Zone (EEZ) between states with opposite or
adjacent coasts are identical with those of Article 83 relating to
continental shelf delimitation. Moreover, the basis of entitlement of the
coastal state to the EEZ is less differentiated from that of shelf areas
since the International Court emphasized the distance principle of 200nm
in Libya/Malta.100 The principles of delimitation are strikingly similar,
unless the coasts involved are more than 400nm apart. However, some
differences may manifest themselves in balancing equitable factors, more
especially when the EEZ areas to be delimited are of interest on account
of fisheries rather than oil and gas.
In this context, the state practice and decisions of international tribunals
relating to single maritime boundaries are significant.101 Such a boundary
divides areas of
References
(p. 294) different status, for example, a continental shelf and a fisheries
zone of 200nm, as in Gulf of Maine.102There, the Chamber applied
equitable criteria essentially identical with those applicable to shelf
delimitation, while emphasizing the need to use criteria suited to a multipurpose delimitation involving the shelf and the superjacent water
column.103
A further issue of interest with respect to delimitation of the continental
shelf beyond 200nm is that of the ‘grey zone’ or ‘grey area’. This refers to
situations in which the natural prolongation of state A’s continental shelf
extends into state B’s EEZ. In Bangladesh/Myanmar, the Tribunal noted
that the grey area created in Myanmar’s EEZ by reason of the
Bangladesh’s continental shelf did not ‘otherwise limit Myanmar’s rights
[with respect to the EEZ]’,104 and granted Bangladesh the rights to the
continental shelf in the area whilst giving Myanmar the rights to the
superjacent water column: each state was required to ‘exercise its rights
and perform its duties with due regard to the rights and duties of the
other’105 by reference to UNCLOS Articles 56, 58, and 78 to 79.
5. The Effect of Islands Upon Delimitation106
Islands may constitute a relevant circumstance for the purpose of
delimiting areas of continental shelf or exclusive economic zone between
opposite or adjacent states and in this context they may be given full
107
108
effect107 or half-effect.108 Alternatively they may be ignored or
enclaved.109
References
(p. 295) Much will depend on the particular geographical relationships of
the island rather than its classification, which can be avoided if it is not
central to a particular case. UNCLOS Article 121(2) provides that all
islands, as defined, count as land territory,110 but Article 121(3) then
formulates an exception. ‘Rocks which cannot sustain human habitation
or economic life of their own’ have no EEZ or continental shelf.
Consequently, such features need not be taken into account, as between
UNCLOS parties, in delimitations beyond 12nm; whereas as a matter of
customary international law the question was whether taking such
features into account would have a disproportionate effect on the putative
delimitation line. Thus, in Libya/Malta, the Court found it equitable to
disregard the uninhabited Maltese islet of Filfa when drawing the
boundary line.111
Whether an island plays a significant role in maritime delimitation is to a
large extent dependent on the stage of the delimitation process at which
the island is considered. If the island is taken into consideration at the
initial stage of drawing the provisional line, its impact will generally be
significant. If the island is assessed only at a later stage as a relevant
factor for adjustment or shifting of the provisional equidistance line, its
impact will be reduced considerably. The latter was the case of Serpents’
Island, a maritime feature of 0.17km2 located 20nm to the east of the
Danube delta, which was not considered as generating base points for
drawing the provisional line at the first delimitation stage, and its
presence was later not seen as requiring adjustment of the provisional
equidistance line.112 In such a case the potential impact of Article 121(3)
may be occluded.
In other cases, an island may be given varying treatment depending on
the act of delimitation in question. In Bangladesh/Myanmar, St Martin’s
Island was given a 12nm territorial sea,113 but no additional continental
shelf or EEZ so as to avoid undue distortion of the equidistance line:114 it
was thus largely irrelevant in the drawing of the single maritime boundary
of the continental shelf and EEZ.
References
Footnotes:
1
Generally: O’Connell, 2 The International Law of the Sea (1984) 684–
732; Jagota, Maritime Boundary (1985); Kittichaisaree, The Law of the
Sea and Maritime Delimitation in South-East Asia (1987) 57–119;
Johnston & Saunders (eds), Ocean Boundary Making (1988); Weil, The
Law of Maritime Delimitation (1989); Evans, Relevant Circumstances and
Maritime Delimitation (1989); Evans (1991) 40 ICLQ 1; Churchill &
Lowe, The Law of the Sea (3rd edn, 1999) ch 10; Antunes, Towards the
Conceptualisation of Maritime Delimitation (2003); Lagoni & Vignes
(eds), Maritime Delimitation (2006); Tanaka, Predictability and Flexibility
in the Law of Maritime Delimitation (2006); Rothwell & Stephens, The
International Law of the Sea (2010) ch 16; Scovazzi, ‘Maritime
Delimitation Cases before International Courts and Tribunals’
(2008) MPEPIL.
2
For a partial
collection: www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionslist.htm
3
Including, perhaps surprisingly, the maritime boundaries between
Canada and the US: McDorman, Salt Water Neighbours (2009).
4
Since the first decision in 1969, 18 cases out of 87 on the Court’s
docket (including cases later consolidated) have concerned either
maritime delimitation or applications for the reconsideration of earlier
decisions on maritime delimitation. A further four cases have concerned
related questions of sovereignty over islands in overlapping maritime
zones or boundaries lying along rivers.
5
E.g. North Sea Continental Shelf (Federal Republic of
Germany/Netherlands; Federal Republic of Germany/Denmark), ICJ
Reports 1969 p 3; Guyana v Suriname (2007) 139 ILR 566.
6
7
E.g. Barbados v Trinidad and Tobago (2006) 139 ILR 449.
7
Generally: Arnaut (2002) 8 OCLJ 21; Shi (2010) 9 Chin JIL 271, 279–
81.
8
10 December 1982, 1833 UNTS.
9
29 April 1958, 516 UNTS 205.
10
Maritime Delimitation and Territorial Questions between Qatar and
Bahrain (Qatar v Bahrain), ICJ Reports 2001 p 40, 93–4.
11
As to what may be considered ‘special circumstances’, there is no
closed list: Continental Shelf (Libya/ Malta), ICJ Reports 1985 p 13,
40; Guyana v Suriname (2007) 139 ILR 566, 650–1. On occasion, a
tribunal may need to have recourse to the ILC commentary to the 1956
draft articles to determine the meaning of the term: e.g. Guyana v
Suriname (2007) 139 ILR 566, 650; Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v
Honduras), ICJ Reports 2007 p 659, 744. Also: Rothwell & Stephens
(2010) 400.
12
ICJ Reports 2001 p 40.
13
ICJ Reports 2007 p 659.
14
(2007) 139 ILR 566.
15
Eritrea v Yemen (Phase Two) (1999) 119 ILR 417.
16
Dispute concerning Delimitation of the Maritime Boundary between
Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar),
Judgment of 14 March 2012, ITLOS Case No 16. Further; Churchill
(2012) 1 CJICL 137.
17
(1909) 11 RIAA 147.
18
Delimitation of Maritime Areas between Canada and the French
Republic (St Pierre and Miquelon) (1992) 95 ILR 645 (though in that
case, the parties continued to update their positions based on
developments occurring at UNCLOS III).
19
In the context of the territorial sea, boundaries are often delimited
within the context of a single determination encompassing both the EEZ
and related continental shelf areas: e.g. Guyana v Suriname (2007) 139
ILR 566, where an UNCLOS Annex VII tribunal first delimited the
territorial sea, followed by the continental shelf and the EEZ.
20
Caribbean Sea, ICJ Reports 2007 p 659, 740.
21
ICJ Reports 2007 p 659, 744–5. Also: Qatar v Bahrain, ICJ Reports
2001 p 40, 179 (‘The most logical and widely practiced approach is first
to draw provisionally an equidistance line and then to consider whether
the line must be adjusted in light of the existence of special
circumstances.’). Cf Bangladesh/Myanmar, ITLOS Case No 16, §§151–2
(holding that St Martin’s Island was not considered a special
circumstance requiring abandonment of equidistance).
22
Thus, in Caribbean Sea, the Court found that the presumption of an
equidistance line was displaced due to the nature of the coastline and the
difficulty in identifying suitable baseline points from which a determination
of equidistance could be made. The alternative was a ‘bisector’ line: ICJ
Reports 2007 p 659, 741–5.
23
Ibid, 748. This will be especially important where a river mouth forms
part of the land boundary: Rothwell & Stephens (2010) 398.
24
Generally: Bowett (1978) 49 BY 1; Pazarci, La Délimitation du plateau
continental et les îles (1982); Hutchinson (1984) 55 BY 133; Colson
(2003) 97 AJIL 91; Kunoy (2006) 53 NILR 247; Rothwell & Stephens
(2010) ch 16.
25
1945 United States Presidential Proclamation No 2667, reprinted in
Lowe & Talmon, The Legal Order of the Oceans (2009) 19.
26
Treaty relating to the Submarine Areas of the Gulf of Paria, 26
February 1942, 205 LNTS 121.
27
Ibid, Art 3.
28
In 1952, Chile, Peru, and Ecuador adopted the Santiago Declaration,
18 August 1952, 1006 UNTS 323, establishing an EEZ-type zone; its
effect on delimitation is sub iudice in Maritime Dispute (Peru v
Chile) (2008, pending). Further: Colson (2003) 97 AJIL 91.
29
30
29 April 1958, 499 UNTS 311.
30
North Sea Continental Shelf, ICJ Reports 1969 p 6, 38 and further
chapter 2.
31
UNCLOS, Art 83(4) preserves existing delimitation agreements,
including those based on different principles.
32
Nordquist (ed), 2 United Nations Convention on the Law of the
Sea (1993) 953–4.
33
Libya/Malta, ICJ Reports 1985 p 13.
34
ICJ Reports 1985 p 13, 55.
35
Ibid, 30.
36
Ibid, 39.
37
Ibid, 49–50.
38
Ibid, 55.
39
Further: Scovazzi, ‘Maritime Delimitation Cases before International
Courts and Tribunals’ (2008) MPEPIL, §F.
40
E.g. Qatar v Bahrain, ICJ Reports 2001 p 40, 94; Caribbean Sea, ICJ
Reports 2007 p 659, 742–5; Bangladesh/Myanmar, ITLOS Case No 16,
§§239–40.
41
Caribbean Sea, ICJ Reports 2007 p 659, 746; Delimitation of the
Maritime Boundary in the Gulf of Maine Area (Canada/US), ICJ Reports
1984 p 246, 327.
42
Maritime Delimitation in the Area between Greenland and Jan Mayen
(Denmark v Norway), ICJ Reports 1993 p 38, 62. Also: Guyana v
Suriname (2007) 139 ILR 566, 650–1.
43
Maritime Delimitation in the Black Sea (Romania v Ukraine), ICJ
Reports 2009 p 61, 101.
44
Libya/Malta, ICJ Reports 1985 p 13, 46–9; Black Sea, ICJ Reports
2009 p 61, 101.
45
Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v Nigeria; Equatorial Guinea intervening), ICJ Reports 2002 p
303, 441; Black Sea, ICJ Reports 2009 p 61, 101–
3; Bangladesh/Myanmar, ITLOS Case No 16, §292.
46
46
Black Sea, ICJ Reports 2009 p 61, 103, 129–30.
47
North Sea Continental Shelf, ICJ Reports 1969 p 3, 46–7; Continental
Shelf (Tunisia/Libya), ICJ Reports 1982 p 18, 60; Libya/Malta, ICJ
Reports 1985 p 13, 38–9.
48
ICJ Reports 1985 p 13, 30.
49
UNCLOS, Art 83(1); North Sea Continental Shelf, ICJ Reports 1969 p
3, 46–8, 53; Gulf of Maine, ICJ Reports 1984 p 246, 292–3,
299; Libya/Malta, ICJ Reports 1985 p 13, 39.
50
North Sea Continental Shelf, ICJ Reports 1969 p 3, 46–7, 53; Gulf of
Maine, ICJ Reports 1984 p 246, 312–13; Libya/Malta, ICJ Reports 1985
p 13, 39; Dubai-Sharjah Border (1981) 91 ILR 543, 659; Barbados v
Trinidad and Tobago (2006) 139 ILR 449, 521.
51
North Sea Continental Shelf, ICJ Reports 1969 p 3, 17–88; Gulf of
Maine, ICJ Reports 1984 p 246, 298–9, 312–13, 328, 335; Guinea–
Guinea-Bissau Maritime Delimitation (1985) 77 ILR 635, 681; Barbados v
Trinidad and Tobago (2006) 139 ILR 449, 521; Bangladesh/Myanmar,
ITLOS Case No 16, §331.
52
Gulf of Maine, ICJ Reports 1984 p 246, 299–300; Libya/Malta, ICJ
Reports 1985, p 13, 38–9, 57; Barbados v Trinidad and Tobago (2006)
139 ILR 449, 521.
53
North Sea Continental Shelf, ICJ Reports 1969 p 3, 36, 52–3; Gulf of
Maine, ICJ Reports 1984 p 246, 300–1, 312–13, 327–
32; Libya/Malta, ICJ Reports 1985 p 13, 47.
54
Libya/Malta, ICJ Reports 1985 p 13, 40.
55
North Sea Continental Shelf, ICJ Reports 1969 p 3, 49, 53–
4; Tunisia/Libya, ICJ Reports 1982 p 18, 61–3; Gulf of Maine, ICJ
Reports 1984 p 246, 327–31; Libya/Malta, ICJ Reports 1985 p 13, 50,
52; Guinea–Guinea-Bissau Maritime Delimitation (1985) 77 ILR 635,
676–9; Cameroon v Nigeria, ICJ Reports 2002 p 303, 445–6.
56
Gulf of Maine, ICJ Reports 1984 p 246, 323; Libya/Malta, ICJ Reports
1985 p 13, 48–50; Jan Mayen, ICJ Reports 1993 p 38, 65–70; Cameroon
v Nigeria, ICJ Reports 2002 p 303, 446–7; Barbados v Trinidad and
Tobago (2006) 139 ILR 449, 523; Black Sea, ICJ Reports 2009 p 61,
116–18.
57
Anglo-French Continental Shelf (1977) 54 ILR 6, 95–
8; Libya/Malta, ICJ Reports 1985 p 13, 42, 50–3; Guinea–Guinea-Bissau
Maritime Delimitation (1985) 77 ILR 635, 683–5.
58
Jan Mayen, ICJ Reports 1993 p 38, 70–3 (fisheries).
59
North Sea Continental Shelf, ICJ Reports 1969 p 3, 53–
4; Tunisia/Libya, ICJ Reports 1982 p 18, 58, 64.
60
Tunisia/Libya, ICJ Reports 1982 p 18, 83–4; Gulf of Maine, ICJ
Reports 1984 p 246, 310–11; Jan Mayen, ICJ Reports 1993 p 38, 75–7.
61
Cameroon v Nigeria, ICJ Reports 2002 p 303, 447–8.
62
North Sea Continental Shelf, ICJ Reports 1969 p 3, 54; Tunisia/Libya,
ICJ Reports p 18, 77–8; Libya/ Malta, ICJ Reports 1985 p 13, 41.
63
Anglo-French Continental Shelf (1977) 54 ILR 6, 98; Libya/Malta, ICJ
Reports 1985 p 13, 42; Guinea–Guinea-Bissau Maritime
Delimitation (1985) 77 ILR 635, 689; Maritime Delimitation in the Area
between Greenland and Jan Mayen, ICJ Reports 1993 p 38, 74–5; Black
Sea, ICJ Reports 2009 p 61, 127–8.
64
Anglo-French Continental Shelf (1977) 54 ILR 6, 98.
65
Tunisia/Libya, ICJ Reports 1982 p 18, 64–6; Guinea–Guinea-Bissau
Maritime Delimitation (1985) 77 ILR 635, 682–3.
66
Black Sea, ICJ Reports 2009 p 61, 118–20.
67
North Sea Continental Shelf, ICJ Reports 1969 p 3, 36, 49–50.
68
Anglo-French Continental Shelf (1977) 54 ILR 6, 100–2 (Channel
Islands enclaved).
69
Ibid, 123–4 (Scilly Isles given half-effect).
70
Tunisia/Libya, ICJ Reports 1982 p 18, 88–9. For criticism of this
approach: ibid, 149–56 (Judge Gros, diss). Also: Dubai-Sharjah
Border (1981) 91 ILR 543, 673–7.
71
Barbados v Trinidad and Tobago (2006) 139 ILR 449, 523; Black Sea,
ICJ Reports 2009 p 61, 125–6.
72
72
Maritime Delimitation in the Area between Greenland and Jan Mayen,
ICJ Reports 1993 p 38, 70–2. Cf Cameroon v Nigeria, ICJ Reports 2002
p 303, 447–8 (irrelevance of oil practice).
73
ICJ Reports 1985 p 13, 40. The use of the term ‘equitable principles’
here is reflective of a mild conflation in the case-law, under which
‘relevant circumstances’ represent another, more situationally responsive,
equitable principle: e.g. Jan Mayen, ICJ Reports 1993 p 38, 62. Also:
Guyana v Suriname (2007) 139 ILR 566, 650–1.
74
Tunisia/Libya, ICJ Reports 1982 p 18, 77–8; Libya/Malta, ICJ Reports
1985 p 13, 41; Guinea–Guinea-Bissau Maritime Delimitation (1985) 77
ILR 635, 688–9.
75
Jaenicke, in Bos & Siblesz (eds), Realism in Law-Making (1986) 51.
76
ICJ Reports 1969 p 3, 52–4. In Bangladesh/Myanmar, the test was
referred to as the ‘disproportionality test’: ITLOS Case No 16, §§477–99.
77
Libya/Malta, ICJ Reports 1985 p 13, 45–6.
78
Tunisia/Libya, ICJ Reports 1982 p 18, 75–6, 78, 91, 93.
79
Anglo-French Continental Shelf (1977) 54 ILR 6, 67–8; Gulf of Maine,
ICJ Reports 1984 p 246, 323; Libya/Malta, ICJ Reports 1985 p 13, 53–5.
80
Shakespeare, Twelft h Night, Act II sc 4.
81
North Sea Continental Shelf, ICJ Reports 1969 p 3, 50–
1; Tunisia/Libya, ICJ Reports 1982 p 18, 59–61; Libya/Malta, ICJ Reports
1985 p 13, 40.
82
Cf the Judgment of the Chamber in Gulf of Maine, ICJ Reports 1984 p
246, 313–14; and the Judgment of the Full Court in Caribbean Sea, ICJ
Reports 2007 p 659, 745–9, 759–60.
83
North Sea Continental Shelf, ICJ Reports 1969 p 3, 53; Jan Mayen
Continental Shelf (1981) 62 ILR 108.
84
Generally: Hutchinson (1984) 55 BY 133; Highet, in Dallmeyer & De
Vorsey (eds), Rights to Oceanic Resources (1989) 87; Colson (2003)
97 AJIL 91, 102–7; Kaye (2008) 14 OCLJ 73, 74–9.
85
ICJ Reports 1969 p 3, 22, 32, 37, 46–7, 51, 53; Jan Mayen
Continental Shelf (1981) 62 ILR 108, 119, 124.
86
86
Libya/Malta, ICJ Reports 1985 p 13, 32–7, esp 35.
87
Tunisia/Libya, ICJ Reports 1982 p 18, 46–7.
88
Anglo-French Continental Shelf (1977) 54 ILR 6, 68–70. Also: North
Sea Continental Shelf, ICJ Reports 1969 p 3, 32; Tunisia/Libya, ICJ
Reports 1982 p 18, 57–8, 64.
89
Libya/Malta, ICJ Reports 1985 p 13, 35–6.
90
Generally: Kunoy (2006) 53 NILR 247; McDorman (2009) 18 J Trans
LP 155.
91
UNCLOS, Annex II, esp Art 4.
92
UNCLOS, Art 76(8).
93
St Pierre and Miquelon (1992) 95 ILR 645, 648, 673–5.
94
Arbitration between Newfoundland and Labrador and Nova Scotia
concerning Portions of the Limits of their Off shore Areas (2002) 128 ILR
425, 537–9.
95
Caribbean Sea, ICJ Reports 2007 p 659, 759.
96
Bangladesh/Myanmar, ITLOS Case No 16, §§360–3.
97
Ibid, §§378–90, 393.
98
Ibid, §§390–2.
99
Generally: Evensen, in Rozakis & Stephanou (eds), The New Law of
the Sea (1983) 107; 2 O’Connell (1984) 727–32; Attard, The Exclusive
Economic Zone in International Law (1987) 221–76; Weil (1989); Evans
(1989) 39–62; 2 Nordquist (1993) 796–817; Rothwell & Stephens (2010)
401–7.
100
ICJ Reports 1985 p 35. Cf Tunisia/Libya, ICJ Reports 1982 p 18, 48–
9, 114–15 (Judge Jiménez de Aréchaga), 222 (Judge Oda).
101
Generally: Oda, 2 International Law at the Time of its
Codification (1987) 349; Evans (1993) 64 BY 283; Rothwell & Stephens
(2010) 407–8.
102
ICJ Reports 1984 p 246. For comment: Rhee (1981)
75 AJIL 590; Legault & McRae (1984) 22 CYIL 267; Legault & Hankey
(1985) 79 AJIL 961; Schneider (1985) 79 AJIL 539; Oda (1987)
349; Kaye (2008) 14 OCLJ 73.
103
ICJ Reports 1984 p 246, 326–7. Also: the Court of Arbitration
decision in the Guinea–Guinea-Bissau Maritime Delimitation (1985) 77
ILR 635, 658–9, 685–7; Dubai-Sharjah Border (1981) 91 ILR 543; St
Pierre and Miquelon (1992) 95 ILR 645, 663–4; Eritrea v Yemen (Phase
Two) (1999) 119 ILR 417, 457–8; Qatar v Bahrain, ICJ Reports 2001 p
40, 91–3; Cameroon v Nigeria, ICJ Reports 2002 p 303, 440–
2; Caribbean Sea, ICJ Reports 2007 p 659, 738–40.
104
Bangladesh/Myanmar, ITLOS Case No 16, §§471, 474.
105
Ibid, §475.
106
Generally: Bowett, The Legal Regime of Islands in International
Law (1979); Dipla, Le Régime jurid ique des îles dans le droit
international de la mer (1984); 2 O’Connell (1984) 714–23, 731–
2; Symmons (1986) 35 ICLQ 344; Jayewardene, The Regime of Islands
in International Law (1990); Rothwell & Stephens (2010) 404–6;
Scovazzi, ‘Maritime Delimitation Cases before International Courts and
Tribunals’ (2008) MPEPIL, §D2. On artificial islands: Johnson (1951)
4 ILQ 203; Papadakis, The International Legal Regime of Artificial
Islands (1977); 1 O’Connell (1982) 196–7. On the Rockall
issue: Symmons (1986) 35 ICLQ 344.
107
Anglo-French Continental Shelf (1977) 54 ILR 6, 123 (Island of
Ushant); Bangladesh/Myanmar, ITLOS Case No 16, §§151–2 (St
Martin’s Island given a full 12nm territorial sea).
108
Tunisia/Libya, ICJ Reports 1982 p 18, 88–9 (Kerkennah
Islands); Anglo-French Continental Shelf (1977) 54 ILR 6, 121–4 (Scilly
Isles); Gulf of Maine, ICJ Reports 1984 p 246, 336–7 (Seal Island).
109
Anglo-French Continental Shelf (1977) 54 ILR 6, 98–104 (Channel
Islands); Bangladesh/Myanmar, ITLOS Case No 16, §§318–19 (St
Martin’s Island given no effect with respect to the EEZ and continental
shelf).
110
111
Also: GCTS Art 10.
111
Libya/Malta, ICJ Reports 1985 p 13, 48. Also: Qatar v Bahrain, ICJ
Reports p 40, 104; Caribbean Sea, ICJ Reports 2007 p 659, 751–
2; Black Sea, ICJ Reports 2009 p 61, 122.
112
Black Sea, ICJ Reports 2009 p 61, 68–70, 110–12, 122–3.
113
Bangladesh/Myanmar, ITLOS Case No 16, §§151–2.
114
Ibid, §§317–19.
(p. 296) 13 Maritime Transit and the Regime of
the High Seas
1. Introduction1
The modern law of the high seas is largely set out in two multilateral
treaties, one built substantially on and intended to replace the other, both
setting out propositions in ‘all states’ form. The first is the Geneva
Convention on the High Seas (GCHS),2 the preamble of which asserts
that its articles ‘are generally declaratory of established principles of
international law’. Its provisions were substantially co-opted by Part VII
(High Seas) of the UN Convention on the Law of the Sea
(UNCLOS),3 which, despite the continued non-participation of some
states, can for most purposes be taken to reflect the definitive position on
the subject.4
The high seas traditionally encompassed all parts of the sea beyond the
territorial sea and the internal waters of a state.5 By contrast UNCLOS
specifies that the provisions of Part VII ‘apply to all parts of the sea that
are not included in the exclusive economic zone, in the territorial sea or in
the internal waters of a State, or in the archipelagic waters of an
archipelagic State’ (Article 86). This invites two observations. First, by
References
(p. 297) no means all coastal states claim an Exclusive Economic Zone
(EEZ). Secondly, many high seas freedoms are applicable in the EEZ
(Articles 58, 86), and this is also the position in customary international
law.6
The regime of the high seas does not apply to international lakes and
land-locked seas, which are not open to free navigation except by special
agreement. However, seas which are virtually land-locked may acquire
the status of high seas: this is so of the Baltic and Black Seas. In such
cases much turns on the maintenance of freedom of transit through the
straits communicating with other large bodies of sea.7 It is doubtful
whether, apart from special agreements on access and other issues, the
Baltic and Black Seas would have the status of open seas. The Caspian
Sea does not.8
2. Freedom of the High Seas
(A) Historical and Jurisprudential Origins
The modern law governing the high seas has its foundation in the rule
that the high seas were not open to acquisition by occupation on the part
of states individually or collectively: it was res extra commercium or res
communis. The emergence of the rule is associated with the rise to
dominance of maritime powers and the decline of the influence of states
which had favoured closed seas. By the eighteenth century the position
had changed completely. Dutch policies had supported freedom of
navigation and fishing, and Grotius had written against the Portuguese
monopoly of navigation and commerce in the East Indies.9 After the
accession of William of Orange to the English throne in 1689, English
disputes with Holland over fisheries ceased. By the
References
(p. 298) late eighteenth century the British claim to sovereignty (the
King’s Chambers) was obsolete; insistence on the flag ceremony ended
in 1805. Also by this time, the cannon-shot rule predominated and claims
to large areas of sea faded away.10 In the nineteenth century naval power
and commercial interests dictated British, French, and American support
for the principle of freedom of the seas. Whatever special interests the
principle may have served historically, it commended itself as
representing a sensible concept of shared use in circumstances where
the level of technology did not threaten the maritime global commons.
Although the freedom of the high seas was described by Gidel as ‘multiforme et fugace’,11 in truth it is a general principle of international law, a
policy or concept from which particular rules may be inferred. But its
application to specific problems oft en fails to give precise results. For
example, weapons testing, which involves the temporary closure of large
areas of ocean, is regarded by some as a legitimate use and by others as
a serious denial of the freedom of the seas.12 Gidel regards the concept
as essentially negative, in the sense that states are prima facie obliged
not to impede vessels under the flag of another state from going about
their business on the high seas, and vice versa.13 However, both the
substance of the principle and its character as such give rise to certain
presumptions which may aid in the resolution of particular problems, and
some consideration of its positive content is, therefore, useful. Grotius
stated two propositions: first, that the sea could not be the object of
private or public appropriation; secondly, that the use of the high seas by
one state would leave the medium available for use by another.14 To
these propositions it is necessary to add that the general principle applies
in time of war or armed conflict as well as time of peace.15 On two
occasions the International Court has taken the opportunity to invoke ‘the
principle of the freedom of maritime communication’.16
(B) Unclos and the Freedom of the High Seas
UNCLOS Article 87 Renders the Principle of Freedom of the High Seas
As follows:
References
(p. 299) 1. The high seas are open to all States, whether coastal
or land locked. Freedom of the high seas is exercised under the
conditions laid down by this Convention and by other rules of
international law. It comprises, inter alia, for both coastal and landlocked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject
to Part VI;
(d) freedom to construct artificial islands and other
installations permitted under international law, subject to
Part VI;
(e) freedom of fishing, subject to the conditions laid down
in section 2;
(f) freedom of scientific research, subject to Parts VI and
XIII.
2. These freedoms shall be exercised by all States with due
regard to the interests of other States in their exercise of the
freedom of the high seas, and also with due regard for the rights
under this Convention with respect to activities [on the sea bed
and ocean floor and subsoil thereof].
Of the six freedoms enumerated in Article 87, only freedom of navigation,
fishing, the laying of submarine cables and pipelines, and overflight were
included in GCHS Article 2. These four freedoms are supported by
arbitral jurisprudence and are inherent in many particular rules of law.
Freedom of fishing is an assumption at the base of the decision in AngloNorwegian Fisheries17 and the awards in the Behring Sea
Fisheries arbitrations in 189318 and 1902.19 Both arbitrations arose from
attempts to enforce conservation measures on the high seas. In the
former case the US had arrested Canadian sealers, and in the latter
Russian vessels had arrested American sealers, with the object of
preventing the depletion of seal stocks. Both awards rejected claims to
enforce conservation measures against foreign vessels on the high seas.
In the absence of a treaty, a coastal state could only apply such
measures to vessels flying its own flag. Of the questions submitted for
decision to the tribunal of 1893 the fift h concerned an issue of general
law: ‘Has the United States any right, and if so, what right of protection or
property in the fur-seals frequenting the islands of the United States in
Behring Sea when such seals are found outside the ordinary three-mile
limit?’ The arbitrators found, by a majority, that ‘the United States has not
any right of protection or property in the fur-seals frequenting the islands
of the United States in Behring Sea, when such seals are found outside
the ordinary three-mile limit’.20
UNCLOS Article 86(1) places additional limitations upon high-seas
freedoms as compared with the earlier law. The existing freedom to lay
submarine pipes and cables
References
(p. 300) and the ‘new’ freedoms to construct artificial islands and other
structures and to undertake scientific research are limited by UNCLOS
Part VI, governing activities on the continental shelf. The freedom to fish
is limited by Part VII, section 2, concerning the conservation and
management of living resources on the high seas. In particular, Articles
117 and 118 condition the freedom to fish by requiring states parties to
cooperate with other states in taking such measures for their respective
nationals as may be necessary for the conservation and management of
living resources on the high seas, to the extent of establishing
subregional or regional fisheries management organizations to this end.21
UNCLOS Part XI is also relevant, regulating activities on the sea bed and
ocean floor and its subsoil beyond the limits of national jurisdiction. It
establishes the International Seabed Authority, an international
organization through which the states parties to UNCLOS can organize
and control seabed activities, with a particular focus on administering
resources beneath the sea floor.22
The most significant modification to customary international law arising
from by UNCLOS, however, is the emergence of the EEZ as a separate
jurisdictional zone claimable by each coastal state as of right.23 The
concept of the EEZ only gained traction in the later part of the twentieth
century;24 it was not recognized in the third Geneva Convention of 1958,
which instead endorsed a coastal state right of pref-erence.25 By 1974,
however, when the Third UN Conference on the Law of the Sea
(UNCLOS III) opened, it was clear that a majority of especially
developing states supported the concept and that all that remained was
its full articulation. UNCLOS Part V provides a set of rules which regulate
EEZs, and, in Article 57, sets the outer limit of the EEZ at 200nm
seaward of the coastal state’s baselines: Article 56 provides for the
rights, jurisdiction, and duties of the coastal state in its EEZ. As provided
in Article 86, an EEZ does not form part of the high seas, though
significant aspects of the regime of the high seas apply to the zone. This
is seen primarily in the wording of Article 58(1), which sets out the rights
and duties of other states in an EEZ, and preserves for them the
freedoms of navigation, overflight, the laying of submarine cables and
pipelines, and all other internationally lawful uses of the seas relating to
these freedoms. Furthermore, Article 58(2) extends the application of
Articles 88 to 115 (the bulk of
References
(p. 301) the general provisions regulating the high seas, with the
exception of the additional freedoms of Article 87(1)) to the EEZ to the
extent they do not conflict with the provisions of Part V, creating in the
process substantial overlap between the two fields.
(C) Jurisdictional Aspects of the High Seas Regime
Although the basal principle of the law of the high seas is that one state
cannot interfere with vessels sailing under the flag of another without the
consent of the latter, UNCLOS Article 110 provides a number of
exceptions, conferring power to stop, search, and even seize foreign
vessels as an exercise of a state’s jurisdiction to enforce in certain
cases.26 In other cases the parties are obliged only to incorporate the
relevant prohibition in their national legislation, and enforcement is left to
national courts in respect of the flag vessels and nationals of the forum
state. The system of enforcement, whether specified by treaty or custom,
rests on co-operation under international law and notably under the
national laws of states possessing a maritime flag. Every state is under a
duty to fix the conditions for the grant of nationality, for the registration of
ships in its territory, and for the right to fly its flag. Ships have the
nationality of the state whose flag they are entitled to fly.27
Insofar as jurisdiction is concerned, UNCLOS Part VII generally reflects
customary international law, providing in Articles 88 and 89 respectively
that the high seas are reserved for peaceful purposes28 and that no state
may subject any part of the high seas to its sovereignty. Article 90 grants
every state, coastal or land locked, the right to sail ships flying its flag on
the high seas. Article 92(1) provides that ships shall sail under the flag of
one state only; subject to certain exceptions, ships are subject to the
exclusive jurisdiction of the flag state whilst on the high seas. Article 94
fixes the obligations of states with respect to vessels flying its flag. The
right to enjoy the protection of the law balances the responsibility of the
flag state for the behaviour of its ships.29
A ship without nationality30 loses the protection of the law with respect to
boarding (and potentially seizure) on the high seas.31 However, such
ships are not outside the law altogether; their occupants are protected by
elementary considerations of humanity.
References
(p. 302) The seizure of ships by insurgents has created some difficult
problems, and the issues have been obscured by a tendency for courts to
describe ships under the control of insurgents as pirates. Such ships, it
seems, should not be interfered with provided they do not attempt to
exercise belligerent rights against foreign vessels and the lives of any
‘neutral’ aliens on board are not threatened.
(D) Piracy32
Piracy is the principal exception to the freedom of the high seas, and one
that has attained a new significance. The dissenting opinion of Judge
Moore in the Lotus provides a useful starting-point. He said that
in the case of what is known as piracy by law of nations, there has been conceded a
universal jurisdiction, under which the person charged with the offence may be tried and
punished by any nation into whose jurisdiction he may come. I say ‘piracy by law of
nations’, because the municipal laws of many States denominate and punish as ‘piracy’
numerous acts which do not constitute piracy by law of nations, and which therefore are
not of universal cognizance, so as to be punishable by all nations. Piracy by law of
nations, in its jurisdictional aspects, is sui generis. Though statutes may provide for its
punishment, it is an offence against the law of nations; and as the scene of the pirate’s
operations is the high seas, which it is not the right or duty of any nation to police, he is
denied the protection of the flag which he may carry, and is treated as an outlaw, as the
enemy of all mankind—hostis humani generis—whom any nation may in the interest of
all capture and punish.33
The term ‘universal jurisdiction’ refers to the jurisdiction of a state to
prescribe conduct occurring extraterritorially without a territorial, national
or other internationally recognized nexus, as well as the capacity to
enforce that jurisdiction on the high seas.34
(i) The definition of piracy
The definition of piracy was historically a source of controversy,35 but
UNCLOS Article 101 (reflecting almost verbatim GCHS Article 15)
represents the existing
References
(p. 303) customary law—or rather, custom has come to reflect it.36 Article
101 provides:
1. Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of
depredation, committed for private ends by the crew or
passengers of a private ship or private aircraft , and
directed:
(i) on the high seas, against another ship or aircraft,
or against persons or property on board such ship or
aircraft;
(ii) against a ship, aircraft, persons or property in a
place outside the jurisdiction or any State;
(b) any act of voluntary participation in the operation of a
ship or of an aircraft with knowledge of facts making it a
pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act
described in subparagraph (a) or (b).
The only innovation here as compared with the pre-1958 understanding
of piracy is the reference to aircraft, a sensible application of
analogy.37 The essential feature is that the acts must be committed for
private ends.38Piracy cannot be committed by warships or other
government ships, or government aircraft, except where the crew ‘has
mutinied and taken control of the ship or aircraft’ (Article 102). Acts
committed on board a ship by the crew and directed against the ship
itself or against persons or property on the ship are also not within the
definition.39
Article 101(1) confines piracy to acts on the high seas or ‘in a place
outside the territorial jurisdiction of any State’. An illegal act of violence or
depredation committed against a ship whilst in the territorial sea of a
state is not piracy; it is armed robbery, murder or another crime under the
municipal law of the territorial state committed at sea.40
Article 105 (replicating GCHS Article 19) provides:
On the high seas, or in any other place outside the jurisdiction of any State, every State
may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of
pirates, and arrest the persons and seize the property on board. The courts of the State
which carried out the seizure may decide upon the penalties to be imposed, and may
also determine the action to be taken with regard to the ships, aircraft or property, subject
to the rights of third parties acting in good faith.
References
(p. 304) The second part of this provision reflects the maxim pirata non
mutat dominium: the rightful owner is not deprived of his title by virtue of
acts of piracy relating to his goods.41 Seizures on account of piracy may
only be carried out by warships or military aircraft, or other government
ships or aircraft authorized to that effect (Article 107). Capture may occur
in other circumstances as a consequence of acts of self-defence by an
intended victim of piratical action.42
Piracy has often been considered to be something of a historical
curiosity.43 In the early part of the twenty-first century, however,
interference by pirates operating from bases in Somalia with commercial
shipping in the Gulf of Aden has become a matter of significant
international alarm.44 The human and economic cost of Somali piracy
has resulted in a co-ordinated international effort to combat it. Concerns
raised before the International Maritime Organisation (IMO) led to a
Memorandum of Understanding to combat the problem on an African
level.45 UN Security Council Resolution 1816 utilized the powers of
Chapter VII of the UN Charter to authorize foreign military incursions by
‘co-operating states’ into Somali territorial waters over an initial six-month
46
period.46 UN Security Council Resolution 1851 went further still,
authorizing the use of military force to prosecute land-based operations
against pirates.47 A number of those detained for piracy have been
handed over for trial in neighbouring states, notably Kenya.48
(ii) Other illegal acts committed on the high seas
The use of force against foreign vessels on the high seas may be
unlawful and yet may not fall within the definition of piracy. From time to
time, however, tribunals, governments, and writers have assimilated
certain categories of acts to piracy,49 though the definition in UNCLOS
Article 101 would now appear to preclude any such extension. The
subject as a whole is dominated by the problem of keeping order beyond
the territorial jurisdiction of states and, in particular, of maintaining legal
controls in respect of those not identifiable with a state on which
responsibility may be placed. Thus Hall
References
(p. 305) considered piracy to include acts done ‘by persons not acting
under the authority of any politically organized community,
notwithstanding that the objects of the persons so acting may be
professedly political’.50
(iii) Actions by insurgents at sea
Ships controlled by insurgents may not, without recognition of
belligerency, exercise belligerent rights against the shipping of other
states. Forcible interference of this kind is unauthorized by law and may
be resisted. It is very doubtful that it is correct to characterize such acts
as piracy:51 UNCLOS Article 101(a) covers only acts committed ‘for
private ends’.52 However, it may be lawful to punish acts constituting
murder, robbery, and so on—carried out ultra vires by
insurgents.53 Opinions which favour the treatment of insurgents as such
as ‘pirates’ are surely incorrect,54 save perhaps in circumstances where
insurgents attack foreign flagged private vessels in international waters, a
conclusion reached not only from the plain words of the definition in
Article 101, but from the general prohibition in international humanitarian
law on attacks upon civilians.55
(iv) Acts committed with the authority of a lawful government
Illegal attacks on or seizures of innocent merchant ships by warships or
government ships result in the responsibility of the flag state, but the
offending ships do not become pirate ships. This was the basis for the
older practice of privateering, in which a private ship authorized by a
belligerent to act in its service, was not treated as piratical, even if acts of
violence were committed against neutral ships. In the latter case the
belligerent was responsible as principal.56
Guilfoyle’s conclusion is persuasive:
The test of piracy lies not in the pirate’s subjective motivation,
but in the lack of public sanction for his or her acts. This is why
vessels on military or government service, absent the revolt of
the crew, cannot, by definition, be pirate vessels. To claim that a
political motive can exclude an act from the definition of piracy is
to mistake the applicable concept of ‘public’
References
(p. 306) and ‘private’ acts. The essence of a piratical act is that it
neither raises ‘the immunity which pertains to state or
governmental acts’ nor engages state responsibility.57
(v) Politically motivated acts by organized groups
Harassing operations by organized groups deploying forces on the high
seas may have political objectives,58and yet be neither connected with
insurgency against a particular government nor performed by agents of a
lawful government. Ships threatened by such activities may be protected,
and yet the aggressors not be regarded as pirates. However certain
municipal courts have demonstrated flexibility in attributing private ends
to prima facie political acts.59
(vi) Unrestricted submarine warfare
The term ‘piracy’ has been employed on occasion to describe acts by
ships acting on the orders of a recognized government ‘which are in
gross breach of International Law and which show a criminal disregard of
human life’.60 By the 1937 Nyon Agreement61 eight states agreed on
collective measures ‘against piratical acts by submarines’ with regard to
attacks on merchant ships in the Mediterranean during the Spanish Civil
War, in effect creating an early species of naval exclusion zone.62 The
acts were stated to be ‘acts contrary to the most elementary dictates of
humanity which should be justly treated as acts of piracy’. The word
‘piracy’, however, was used purely for rhetorical effect and nothing in the
Convention dealt with individual criminal liability.
(E) Other Exceptions to the Principle of The Freedom of
the High Seas
(i) The right of approach in time of peace63
To maintain order on the high seas, it is necessary to provide for an
approach by warships in order to verify the identity and nationality of
ships. Such a right of approach
References
(p. 307) (droit d’approche;enquéte ou vérification du
pavillon;reconnaissance) is recognized by customary law, though it is not
mentioned expressly in UNCLOS Part VII. The right of approach exists in
all circumstances, but does not extend to the actual examination of
papers or seizure of the vessel.
(ii) Visit, search, and seizure in time of peace64
There is no general power of police exercisable over foreign merchant
ships on the high seas, and the occasions on which ships can be visited
and seized by warships in time of peace are limited.65 Early British and
American jurisprudence refused to admit a right of visit in the case of
ships suspected of taking part in the slave-trade,66 and, apart from piracy,
the right could only exist on the basis of treaty or if a ship refused to show
its flag.
The legal regime of high-seas freedom has met with a number of threats.
Apart from attempts to extend the concept of piracy, claims to a right of
self-defence on the high seas constitute another source of instability. A
further source of confusion lies in the definition of the right of approach or
verification of flag. It was realized that the right of visit could be abused
and that there must be reasonable ground for suspicion, for example a
refusal by a ship to hoist a flag.67
This has been codified in UNCLOS Article 110,68 which provides as
follows:
1. Except where acts of interference derive from powers conferred
by treaty, a warship which encounters on the high seas a foreign
ship, other than a ship entitled to complete immunity in
accordance with articles 95 and 96, is not justified in boarding it
unless there is a reasonable ground for suspecting that:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting, and
the flag state of the warship has jurisdiction under article
109;
(d) the ship is without nationality;
(e) though flying a foreign flag or refusing to show its flag,
the ship is, in reality, of the same nationality as the warship.
References
(p. 308) The modalities of the exercise of jurisdiction over foreign ships
on the high seas are spelt out in Article 110(2) to (5).
Despite the broad range of circumstances in which a warship may
exercise the right of visit on the high seas, UNCLOS appears to limit the
circumstances in which seizure may occur, expressly providing for such a
right only with respect to pirate ships under Article 105 and ships
engaged in unauthorized broadcasting under Article 109(4). A right of
search and seizure with respect to the slave trade operates under a
separate sui generis set of treaty obligations.69 In an even more
restrictive vein, UNCLOS Article 108(1) provides that states must cooperate in the suppression of the trafficking of narcotics and illicit drugs
on the high seas, but does not expressly provide a right of seizure, or
even a right of visit.
The matter is most complicated when considering stateless vessels.
Article 110(1)(d) provides a right of visit but is silent on seizure. Guilfoyle
identifies two schools of practice.70 The first, adopted by the US and in
certain circumstances the UK, is that a stateless vessel enjoys the
protection of no state, and as such may be subject to the jurisdiction of
any.71 The second is that some further jurisdictional nexus is required to
convert a right of visit into a right of seizure, a position more consistent
with existing treaty practice.
The act of boarding, even when ‘reasonable ground’ for boarding exists,
is a privilege, and under UNCLOS Article 107, if no act justifying the
suspicions has been committed by the ship boarded, there is strict
liability, and the flag state of the warship must compensate for ‘any loss
or damage’.72 In its commentary the ILC stated that the severe penalty
‘seems justified in order to prevent the right of visit being abused’.73
(iii) The right of self-defence
The claim to visit and seize vessels on the high seas may take the form
of a ‘security zone’, a ‘defence zone’, or a ‘neutrality zone’; the legality of
these zones has been considered in chapter 11. Quite apart from claims
to contiguous and other zones, however, some states have asserted a
right to detain vessels on the ground of security or selfdefence.74 Nevertheless the legal basis of such a right, in the absence of
an attack on other shipping by the vessel sought to be detained, is
lacking. In the present context
References
(p. 309) it is significant that the ILC, and the majority of states, do not
accept the legality of security zones and that states are unlikely to regard
an ambulatory exercise of a right of (anticipatory) self-defence with any
favour.75 Similarly, UNCLOS Part VII contains no express right of selfdefence.
(iv) Blockade and contraband
In time of war the exercise of belligerent rights will be justified and may
take the form of a blockade of the enemy’s ports and coast. Enforcement
may take place on the high seas adjoining the coast, and neutral
merchant ships may be confiscated if they attempt to break the blockade.
The right of visit, search, and capture may be exercised against neutral
ships or aircraft carrying contraband or engaged in acts of non-neutral
service.76 Self-evidently, a blockade which is illegal under international
law will not support a right of visit, search, and capture. A controversial
example of the right of visit, search, and capture in order to preserve the
integrity of a blockade occurred in relation to the Mavi Marmara,77 a
passenger vessel carrying humanitarian aid and construction materials
which attempted to breach the Israeli–Egyptian blockade of the Gaza
Strip in May 2010. The matter was complicated in that Hamas, the target
of the blockade, was a non-state actor and the blockade was in aid of a
non-international armed conflict.78 Whilst still on the high seas, the flotilla
was intercepted by the Israeli Navy, and boarded by Israeli commandos,
resulting in the deaths of nine civilians and injury to several dozen more.
Several Israeli soldiers were also injured. An investigation by a UN
Human Rights Commission fact-finding mission concluded that as the
blockade itself was illegal under international law due to the humanitarian
crisis that had developed in Gaza, so too was Israel’s visit, search, and
capture of the Mavi Marmara79 and that, even if the blockade could be
considered legal, the disproportionate force exercised by Israeli forces
rendered its exercise of the right unlawful.80 In contrast, the Palmer
Report, commissioned by the United Nations Secretary-General,
concluded that the blockade was lawful but the use of force excessive.81
(p. 310) (v) The right of hot pursuit82
Although a state may not, with certain exceptions, enforce its laws on the
high seas, it may continue on the high seas a pursuit validly commenced
in the territorial sea or contiguous zone (or by extension the EEZ) and if it
apprehends the suspect vessel, may arrest it on the high seas. The right
of hot pursuit, and its rationale, was expressed by Hall as follows:
The reason for the permission seems to be that pursuit under
these circumstances is a continuation of an act of jurisdiction
which has been begun, or which but for the accident of
immediate escape would have been begun, within the territory
itself, and that it is necessary to permit it in order to enable the
territorial jurisdiction to be efficiently exercised.83
This statement remains a neat encapsulation of the concept, despite its
considerable geographical extension beyond the territorial sea.
In its present form hot pursuit had appeared in Anglo-American practice
in the first half of the nineteenth century, but it was not until the Hague
Codification Conference of 1930 that there was sufficient evidence of
general recognition by states. This provided the basis for the draft article
adopted by the ILC,84 which, with some amendment, became GCHS
Article 23, now UNCLOS Article 111(1).85 Hot pursuit may be undertaken
when the authorities of the coastal state have good reason to believe that
a foreign ship has violated applicable laws and regulations of that state.
Such pursuit must be commenced when the ship or one of its boats is
within the internal waters, the archipelagic waters, the territorial sea or
the contiguous zone of the pursuing state and may only be continued
outside that zone if the pursuit has not been interrupted.
Article 111(2) applies the right of hot pursuit mutatis mutandis to
violations of the laws of the territorial state in the EEZ or the continental
shelf, including safety zones around continental shelf installations. Under
Article 111(3) the right of hot pursuit is exhausted as soon as the ship
pursued enters the territorial waters of another state, whether or not the
flag state. Article 111(4) stipulates the conditions under which hot pursuit
may commence, requiring the pursuing ship to confirm that the pursued
ship—or any craft using the pursued ship as a mother ship—is within its
territorial waters, contiguous zone or EEZ before giving chase. It further
requires that a visual or auditory signal to stop (the proverbial ‘shot
86
across the bow’) is given prior to commencing pursuit.86 Under Article
111(5) only military or clearly identifiable government ships or aircraft are
capable of giving hot pursuit. Under Article 111(8), if it turns out
References
(p. 311) that the right of hot pursuit has been exercised mistakenly, the
ship and its owners must be compensated for loss or damage which may
have resulted.
(F) Restrictions by Treaty
Treaties conferring powers of visit and capture beyond those permitted
by customary law relate to a variety of subject-matter. Great Britain was a
party to numerous bilateral treaties after 1815 concerning repression of
the slave-trade; in 1841 the Treaty of London87 provided that warships
with special warrants could search, detain, or send for trial suspected
merchant ships flying the flags of contracting states. The General Act for
the Repression of the Slave Trade of 1890 provided for a limited right of
search of suspected vessels in a defined zone.88 The General Act was in
major part abrogated as between parties to the Treaty of St Germain-enLaye,89 and the Slavery Conventions of 192690 and 195691 do not
provide for visit, search, and seizure: a right of visit is provided for,
however, in GCHS Article 23 and UNCLOS Article 110. Mutual powers of
visit and search are conferred by bilateral treaties the parties to which are
concerned to conserve fish stocks, to control smuggling, or to repress
certain aspects of the trade in arms.92
The Convention for the Protection of Submarine Cables of 1884, Article
10, confers the right to stop and verify the nationality of merchant ships
suspected of breach of the treaty.93 GCHS Articles 26 to 29 do not refer
to such a right, but it was not intended to supersede the Convention of
1884; the same is true of UNCLOS Article 311(2). States have also been
willing to agree by treaty on the mutual exercise of hot pursuit.94
3. Jurisdiction Over Ships on the High Seas
(A) The Decision in the Lotus
UNCLOS affirms the general principle enunciated by the Permanent
Court in the Lotus:
Vessels on the high seas are subject to no authority except that of the State whose flag
they fly. In virtue of the principle of the freedom of the seas, that is to say, the absence of
any
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(p. 312) territorial sovereignty upon the high seas, no State may exercise any kind of
jurisdiction over foreign vessels upon them.95
Thus UNCLOS Article 92(1) provides that ‘[s]hips shall sail under the flag
of one State only and, save in exceptional cases expressly provided for in
international treaties or in these articles, shall be subject to its exclusive
jurisdiction on the high seas’.96 Article 97(1) provides:
In the event of a collision or of any other incident of navigation concerning a ship on the
high seas, involving the penal or disciplinary responsibility of the master or of any other
person in the service of the ship, no penal or disciplinary proceedings may be instituted
against such persons except before the judicial or administrative authorities either of the
flag State or of the State of which such person is a national.
This provision negatives the decision in the Lotus that there could be
concurrent penal jurisdiction in respect of collisions on the high seas. In
its commentary on the relevant draft article, the ILC commented:
This judgement, which was carried by the President’s casting vote after an equal vote of
six to six, was very strongly criticized and caused serious disquiet in international
maritime circles. A diplomatic conference held at Brussels in 1952 disagreed with the
conclusions of the judgement. The Commission concurred…It did so with the object of
protecting ships and their crews from the risk of penal proceedings before foreign courts
in the event of collision on the high seas, since such proceedings may constitute an
intolerable interference with international navigation.97
(B) Jurisdiction Over Oil Pollution Casualties
States may claim special zones of jurisdiction over areas of high seas
adjacent to their coasts in order to regulate activities of various kinds: the
contiguous zone is an example. But new problems requiring regulation
may arise. When the Torrey Canyon, registered in Liberia, ran aground
off the Cornish coast in 1967 and lost some 60,000 tons of oil, the British
government ordered that the wreck be bombed, aft er salvage attempts
had failed. Even so, British and French coasts received serious pollution.
Such remedial action may be justified on the ground of necessity (but not
of self-defence).98 This led to the conclusion of an International
Convention Relating to Intervention on the High Seas in Cases of Oil
Pollution Casualties.99 The use of protective measures is now recognized
by UNCLOS Article 221(1), which preserves the right of states ‘to
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(p. 313) take and enforce measures beyond the territorial sea
proportionate to the actual or threatened damage to protect their coast
line or related interests, including fishing, from pollution or threat of
pollution following upon a maritime casualty…which may reasonably be
expected to result in major harmful consequences’.100
(C) Unauthorized Broadcasting101
The Council of Europe sponsored the conclusion in 1965 of an
Agreement for the Prevention of Broadcasts Transmitted from Stations
outside National Territories.102 The Convention focuses on acts
supporting ‘pirate’ broadcasting committed within the national jurisdiction
of states parties and does not authorize interference with foreign ships,
aircraft, or nationals. By contrast UNCLOS provides for broad bases of
jurisdiction and powers of arrest in respect of ‘the transmission of sound
radio or television broadcasts from a ship or installation on the high seas
intended for reception by the general public contrary to international
regulations, but excluding the transmission of distress calls’ (Articles 109
to 110).103
(D) Drug Interdiction
In respect of certain varieties of transnational crime, sui generis treaty
regimes provide states with high-seas boarding rights.104 One of these is
the interdiction of drug traffickers.105 Whilst UNCLOS Article 27(1)(d)
provides a coastal state with jurisdiction over a foreign ship suspected of
carrying illicit narcotics within its territorial sea, waiting for drug runners to
enter the territorial sea before exercising a right of arrest may not be
practicable. Article 108(1) provides a minor exhortation to states to cooperate in suppressing the trafficking of illicit narcotics on the high seas.
Article 108(2), however, provides only that any state ‘with reasonable
grounds for believing’ that a vessel sailing under its own flag is engaged
in the trafficking of illicit narcotics ‘may request’ the co-operation of other
states, leaving unaddressed the (much more likely) situation in which a
state suspects a ship sailing under the flag of another state to be carrying
such substances.106
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(p. 314) In this respect UNCLOS is supplemented by the UN Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(Narcotics Convention).107 Article 17(1) requires states parties to cooperate to the fullest extent possible to suppress the carriage of drugs by
sea, in conformity with the law of the sea.108Article 17(2) and (3) provides
that a party with ‘reasonable grounds’ to suspect that a vessel flying the
flag of another party and ‘exercising freedom of navigation’ may request
‘confirmation of registry and…authorization to take appropriate
measures’.109 If consent is granted, Article 17(4) provides that the flag
state may authorize the inquiring state to board and search the vessel
and take appropriate action.110 The inclusion of the words ‘exercising
freedom of navigation’ in Article 17(3) arguably encompasses all vessels
outside territorial waters, including in the EEZ.111
(E) Migrant Smuggling
Migrant smuggling is the unlawful movement of persons with a view to
evading immigration control;112 it frequently involves maritime transport
often in hazardous conditions. As defined by the Migrant Smuggling
Protocol, it involves the procurement of a person’s entry into a state ‘of
which the person is not a national or permanent resident’ for personal
gain without complying with municipal migration laws.113
The Migrant Smuggling Protocol principally provides for the
criminalization of the movement of persons across international borders
(Articles 3 and 6), but also includes high seas interdiction provisions
based on Article 17 of the Narcotics Convention. Article 7 of the Protocol
provides that ‘States Parties shall cooperate to the fullest extent possible
to prevent and suppress the smuggling of migrants by sea, in accordance
with the international law of the sea’. Article 8(2) permits a state party
with a reasonable suspicion that a ship flying the flag of another state
party is smuggling migrants to request the permission of the flag state to
take appropriate measures, in response to which the flag state may
authorize boarding, search or seizure as it sees fit.114 Article 8(5)
expressly preserves the jurisdiction of the flag state. Where the
References
(p. 315) vessel in question appears stateless, Article 8(7) allows the
interdicting state to board and search the vessel if there are reasonable
grounds to suspect that it is engaged in migrant smuggling. If evidence
confirming the suspicion is found, the interdicting state may take
appropriate measures in accordance with relevant international and
municipal law. This perpetuates the ambiguity regarding the exercise of
prescriptive and enforcement jurisdiction over stateless vessels.115
Unlike the Narcotics Convention, however, the Protocol does not
expressly permit the interdicting state to exercise prescriptive jurisdiction
over an intercepted vessel. The jurisdiction of the flag state will prevail
unless it permits the interdicting state to prosecute.116
(F) Human Trafficking
The modern equivalent of slavery, human trafficking involves the
recruitment and transportation of persons by coercive means for the
purpose of exploitation, including sexual exploitation, forced labour, and
‘slavery or practices similar to slavery’.117 The Human Trafficking
Protocol does not provide for the interdiction of ships engaged in human
trafficking on the high seas, due principally to the fact that those trafficked
are seldom moved in large groups or by sea.118 There is, however, an
overlap between migrant smuggling and human trafficking in the sense
that someone may agree to be smuggled by sea, only to be exploited
when they reach their destination. This would arguably provide a nexus
for interdiction under the Migrant Trafficking Protocol, Article 8.119
(G) Suppression of Terrorism and the Maritime Transport
of Weapons120
Another sui generis regime relating to the suppression of terrorist
activities against ships (and latterly, the suppression of the maritime
transport of chemical, biological, and nuclear weapons) is the object of
the Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation (SUA Convention) adopted on 10 March 1988 at a
diplomatic conference convened by IMO121 and later amended by way of
a Protocol concluded in 2005 (SUA Protocol).122
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(p. 316) Drafted in the wake of the Achille Lauro affair,123 the SUA
Convention is one of the 13 ‘sectoral’ agreements concluded once it
became apparent that agreement on a comprehensive and general
definition of terrorism was not in prospect. Article 3 defines an offence of
ship hijacking, for example unlawfully ‘seizing or exercising control over a
ship by force or threat thereof or any other form of intimidation’ and
cognate acts. The scope of the SUA Convention was altered by the SUA
Protocol, which was directed not at maritime terrorism but at enhancing
the Treaty on the Non-Proliferation of Nuclear Weapons.124 On its entry
into force in 2010, the SUA Protocol became the first international
instrument creating a crime of transporting biological, chemical or nuclear
weapons (BCN weapons) by sea: it also provides for high seas
interdictions. It had its origins in the ‘Proliferation Security Initiative’ (PSI),
a US project,125 though its inspiration was arguably UN Security Council
Resolution 1540, the second attempt by the Security Council to create
‘international legislation’ by using Chapter VII of the UN Charter: it
obliged states to take measures against trade in such weapons and their
precursors.126 Article 3bis(1) creates an offence of intentionally using a
ship as part of an action ‘likely to cause death or serious injury’ when the
purpose of that act ‘by its nature or context, is to intimidate a population,
or compel a government or international organization to do or abstain
from doing any act’, irrespective of whether that action involves the
carriage of a BCN weapon. The high seas interdiction regime of the SUA
Convention is contained in Article 8bis. It provides for an interdicting state
to request from the flag state authorization to board and search the
vessel. The flag state is under no obligation to accede to the request
(thus replicating the weakness seen in Article 17 of the Narcotics
Convention).127
4. Regimes of Transit to and from the High Seas
A vital aspect of the law of the sea in general, and UNCLOS in particular,
is its articulation of the various maritime transit regimes. The scope of
transit rights depends on the zones in question.
References
(p. 317) (A) Innocent Passage128
Customary law recognizes the right of innocent passage through the
territorial sea, reflected in UNCLOS Article 17. Article 8 preserves the
right of innocent passage in internal waters previously considered part of
the territorial sea or high seas where enclosed by straight baselines.
These provisions were based on GCTS Articles 14 and 15.
Historically the right of innocent passage evolved at a time when special
zones of jurisdiction were not clearly distinguished from zones of
sovereignty: the maritime belt was considered to be the high seas but
with restrictions in favour of the coastal state. As a question of policy
innocent passage is a sensible accommodation between the necessities
of sea communication and the interests of the coastal state.
The definition of innocent passage was previously a matter of some
difficulty. But the basic rule of innocent passage is now clear; it is
elaborated upon in UNCLOS Articles 18 and 19. Article 18(1) lists the
purposes for which innocent passage may be exercised: these do not
include coastal trade (cabotage) or fishing. Under Article 18(2), passage
must be ‘continuous and expeditious’. Article 19(1) provides that passage
shall be considered innocent ‘so long as it is not prejudicial to the peace,
good order or security of the coastal State’. Article 20 provides that ‘[i]n
the territorial sea, submarines and other underwater vehicles are required
to navigate on the surface and to show their flag’.
Whilst Article 19 is phrased in terms of the ‘peace, good order and
security’ of the coastal state, the list in Article 19(2) makes mention of
several acts which can be considered as causing solely economic
prejudice to the coastal state, notably fishing.129 Indeed, Article 19(2)(l)
provides that any activity not having a direct bearing on passage will be
considered prejudicial to the coastal state’s interests.
Under UNCLOS Article 25(1) the coastal state may take the necessary
steps in its territorial sea to prevent passage which is not innocent.
Vessels exercising the right of passage are subject to local laws and
regulations, providing these conform with international law and treaty
obligations (Articles 21, 22, and 25(2)). Article 25(3) confers on the
coastal state a right to suspend innocent passage temporarily in specified
areas of the territorial sea if such suspension ‘is essential for the
protection of its security’. Article 26 provides that no charge may be
levied on foreign vessels by reason only of their passage, but only for
specific services rendered to the ship.
UNCLOS Article 30 contains a special regime applicable to warships and
other government ships operated for non-commercial purposes. It
excludes enforcement
References
(p. 318) against warships, which in case of non-compliance with the
regulations of the coastal state can only be required to leave the territorial
sea.130
(B) Criminal Jurisdiction During Innocent Passage
Although the coastal state has both prescriptive and enforcement
jurisdiction over its territorial sea, this jurisdiction does not extend to
foreign ships exercising a right of innocent passage unless certain
conditions are met. In relation to criminal matters, UNCLOS Article 27(1)
provides that jurisdiction over a foreign ship passing innocently through
the coastal state’s territorial waters can only be exercised if: (a) the
consequences of the crime extend to the host state; (b) the crime is of
such a nature as to disturb the peace of the coastal state or the good
order of its territorial sea; (c) the assistance of the coastal state has been
requested by the master of the foreign ship or a diplomatic or consular
official of its flag state; or (d) such measures are necessary for the
suppression of illicit traffic in narcotic drugs or other psychotropic
substances.131 Where the foreign ship has entered the territorial sea from
the coastal state’s internal waters, the coastal state does not lose its right
to arrest the foreign ship, provided the flag state is notified.132
UNCLOS Article 28(1) provides that the coastal state should not stop or
divert a foreign ship passing through the territorial sea for the purpose of
exercising its civil jurisdiction in relation to a person on board. Likewise,
Article 28(2) provides that the coastal state may not levy execution
against or arrest the foreign ship for the pursuit of any civil
proceedings,133 save only in respect of liabilities incurred by the ship
during such passage. But if the foreign ship is passing through the
territorial sea aft er leaving internal waters or has dropped anchor in the
territorial sea in a manner inconsistent with innocent
passage,134 jurisdiction may be exercised under Article 28(3).
References
(p. 319) As to foreign warships or government vessels operating for noncommercial purposes, UNCLOS Article 32 preserves their customary
immunity. Such vessels must still comply with the rules applicable to all
ships in exercising innocent passage but in the event of violation the
most that the coastal state can do is require the offending vessel to
depart its territorial sea under Article 30. In the event that the noncompliance of such a vessel results in any loss or damage to the coastal
state, the flag state bears responsibility under Article 31.
(C) Transit Passage Through International Straits135
Transit passage refers to the movement of a foreign vessel through
international straits in order to access the high seas or the EEZ.
UNCLOS Part III governs such movement. Article 37 provides that the
section applies to ‘straits which are used for international navigation
between one part of the high seas or an [EEZ] and another part of the
high seas or an [EEZ]’. Article 38(2) defines transit passage as ‘the
exercise in accordance with this Part of the freedom of navigation and
overflight solely for the purpose of continuous and expeditious transit of
the strait’ and includes passage ‘for the purpose of entering, leaving or
returning from a State bordering the strait, subject to the conditions of
entry to that State’.
The right of transit passage in the territorial sea is subject to fewer
constraints than the right of innocent passage. But Articles 36 and 38(1)
only apply where there is no ‘route through the high seas or through an
exclusive economic zone of similar convenience with respect to
navigational and hydrographical characteristics’. UNCLOS also provides
obligations specific to ships in transit passage in Article 39(2) and aircraft
in Article 39(3).
(D) Passage through the EEZ
For the purposes of passage through the EEZ, UNCLOS treats the zone
much the same as the high seas as a whole, a position consistent with
custom.136 Article 58 reserves the freedoms of navigation, overflight, and
the laying of submarine cables in the EEZ, as well as the rights and
obligations laid out in Articles 88 to 115. The conditions of passage with
respect to the EEZ accordingly have less in common with passage
through the territorial sea or international straits, and more in common
with the more liberal high seas regime.
(E) Archipelagic Sea Lanes Passage
UNCLOS Articles 52(1) and 53(2) provide for ‘the right of archipelagic
sea lanes passage in such sea lanes and air routes’. This type of
passage is akin to transit passage
References
(p. 320) in international straits. The right is not entirely uncontrolled,
however: under Article 53(1) the archipelagic state may designate sea
lanes and air routes suitable for the continuous and expeditious passage
for foreign ships and aircraft through or over its archipelagic waters and
territorial sea. Moreover, Article 52(2) allows the archipelagic state to
suspend temporarily in its archipelagic waters the innocent passage of
foreign ships if this is essential for the protection of its security.
(F) Compulsory Pilotage137
In certain situations, a coastal state may insist that a vessel passing
through superjacent waters take on an approved pilot to navigate it
through particularly treacherous waters or through significant and delicate
ecosystems. Pilotage regimes must accord with the terms of UNCLOS,
and recommendatory programmes will prima facie comply. Compulsory
regimes are more controversial.
Under UNCLOS Article 21(1)(a) and (f), the coastal state may adopt laws
and regulations relating to innocent passage through the territorial sea for
various protective purposes: this includes, where necessary, the
introduction of a compulsory pilotage regime.138
The imposition of compulsory pilotage through international straits is
more controversial, and states have demonstrated their willingness to
challenge compulsory pilotage with respect to transit passage, notably in
relation to Australian and Papua New Guinean attempts to introduce a
pilotage regime to the Torres Strait.139Charging for the cost of pilot
services is not in contravention of UNCLOS and will not impair transit.140
5. Regulation of High Seas Fisheries141
(A) Historical Overview
After freedom of navigation, the freedom to fish is arguably the
fundamental historical freedom of the high seas. Fish were historically
seen as an inexhaustible
References
142
(p. 321) resource,142 an expectation which has been thoroughly
debunked by the refinement of industrial fishing technology since the
Second World War.143
The modern law of fisheries can be divided into two phases. The first is
the period up to the mid-1970s, characterized by generally narrow
coastal state maritime zones, with a large number of high seas fisheries
regulated by international commissions. The second is the period since
the mid-1970s, typified by the emergence of the EEZ. The EEZ
embraced most commercially exploitable fish stocks, reducing somewhat
the role of the international fisheries commissions. Their exclusion from
coastal fisheries led distant water fishing states to focus on often remote
and slow-breeding species (e.g. Patagonian toothfish). The result has
been a progressive tragedy of the commons, redeemed by a few cases
of successful coastal state or regional regulation (e.g. Norwegian spring
spawning herring).
(B) Freedom of Fisheries and its Limitations
The freedom of fishing on the high seas was well established in
customary international law, though it did little more than to state the
existence of the principle in a negative sense: states should not interfere
with vessels fishing under another flag.144 But while freedom of
navigation has been relatively unabated since its Grotian formulation, the
freedom to fish has been constrained in various ways in an attempt to
promote the goals of conservation and orderly access.
UNCLOS Article 87(1)(e) establishes the freedom of fishing on the high
seas, subject to the conditions laid down in UNCLOS Part VII, Section
2.145 Article 116 provides that all states have the right for their nationals
to engage in fishing on the high seas, subject to treaty obligations, the
rights, duties, and interests of the coastal state. Article 63(2) concerns
straddling stocks, that is, where the same or associated fish species
occur within an EEZ and adjacent high seas areas. In such cases cooperation is mandated, either directly or through an appropriate fisheries
organization.
The position under customary international law was at one time less
clear. In the Fisheries Jurisdiction cases,146 the Court was asked to
determine the validity of Iceland’s extension of its fishing limits from 12 to
50nm. It held that according to custom, a coastal state particularly
dependent on fishing for its economic livelihood
References
(p. 322) enjoyed in certain circumstances preferential rights of access to
high seas fisheries adjacent to its territorial sea. The judgment was
criticized for the lack of evidence and general imprecision of the rule so
identified.147 No coastal state before or since the Court’s judgment has
attempted to rely on it to further its share of a high seas fishery, and the
decision—transitional in terms—has been superseded by the introduction
of the EEZ.
(i) The obligation of conservation and co-operation
The principal obligation of states as to high seas fisheries is that of
conservation and co-operation. UNCLOS Article 117 requires parties to
‘take, or to cooperate with other States in taking, such measures for their
respective nationals as may be necessary for the conservation of the
living resources of the high seas’. This is not only an obligation to
regulate the behaviour of flag vessels; it arguably extends
to allnationals irrespective of the flag they sail under.148 This
interpretation has been endorsed by the UN Food and Agriculture
Organization (FAO).149
UNCLOS Article 118 establishes an obligation on the part of states
parties to cooperate for the purpose of conserving and managing living
resources on the high seas.150 Articles 63 to 67 lay down further specific
conservation and co-operation obligations in relation to straddling stocks,
highly migratory species, marine mammals, and anadromous151 and
catadromous152 species. Of particular significance are the provisions on
straddling stocks and highly migratory species. Article 63(2) provides that
any states with an interest in a straddling stock
shall seek, either directly or through appropriate subregional or regional organizations, to
agree upon the measures necessary for the conservation of these stocks in the adjacent
area.
As to highly migratory species, Article 64 provides that the coastal state
and other states whose nationals fish in the region for such species ‘shall
co-operate directly or
References
(p. 323) through appropriate international organisations with a view to
ensuring conservation and promoting the objective of optimum utilization
of such species throughout the region’.
Obligations of co-operation and conservation are insufficient. High seas
fisheries can only be managed appropriately through international
cooperation, for example through the creation of regional or speciesspecific agencies. However, except for highly migratory species (Article
64), states parties are under no obligation in this regard; UNCLOS either
presents the creation of regional bodies as an alternative to direct
negotiation, as in the case of straddling stocks (Article 63), or qualifies
the obligation with considerations of ‘appropriateness’, as seen more
generally in Article 118.
(ii) Regional fisheries management organizations
Despite these somewhat weak obligations of co-operation, numerous
regional fisheries management organizations (RFMOs) have been
created.153 As their name implies, RFMOs co-operate in managing high
seas fisheries for certain stocks in a defined area, principally through the
prescription of management and conservation measures. There are
common responsibilities such as the collection and distribution of
fisheries statistics,154 the evaluation and management of fish stocks
within their jurisdiction,155 the determination and allocation of the total
allowable catch (TAC),156 the regulation of equipment,157 and the
oversight of scientific research. RMFO agreements frequently contain
dispute resolution provisions or provide for a compliance committee.158
(iii) Straddling and highly migratory stocks
The creation of credible RFMOs has been aided by the development of
the Straddling Stocks Agreement,159which reflects considerable effort to
create a comprehensive
References
(p. 324) regulatory framework for the management of high seas fisheries,
while addressing some of the weaknesses stemming from the
generalized terms of UNCLOS.160
Articles 8 to 13 of the Agreement assign a central role to RFMOs in the
co-operative management of straddling and highly migratory fish stocks.
Article 8(1), like UNCLOS,161 calls for co-operation in relation to
straddling and highly migratory fish stocks. But it envisages a regime
which attempts to eliminate free riders and a system whereby ‘only those
who play by the rules can fish’.162 In particular Article 8(4) provides that
only states which are members of or agree with the RFMO shall have
access to the fisheries which the RFMO oversees.
These obligations are bolstered by a boarding, inspection, and
enforcement regime which exceeds that directed to even more serious
international maladies such as drug running, human trafficking, the
smuggling of migrants, and the transport of biological, chemical, and
nuclear weapons. Members of RFMOs are instructed to establish
schemes whereby one member of the RFMO can board and inspect
vessels of any state party to the Straddling Stocks Agreement (whether a
member of the RFMO or otherwise).163 Where, following a boarding and
inspection, there are clear grounds for believing that a vessel has
engaged in activity contrary to an applicable RFMO regime, the
interdicting state shall secure evidence and promptly notify the flag state
of the alleged violation.164 The flag state may then investigate itself or
authorize the interdicting state to do so.165Where the interdicting state or
its own investigators uncover sufficiently incriminating evidence, the flag
state is bound to take enforcement action, or to authorize the inspecting
state to take such enforcement action as the flag state specifies,
consistent with the terms of the Agreement.166 This is subject to the flag
state’s right to require that the vessel be released to it,167 in which case
the flag state’s obligation to take appropriate enforcement action will
remain.
(iv) The role of the WTO168
The World Trade Organization (WTO) is relevant to the management of
high seas fi sheries in that WTO Members interested in the preservation
of threatened fish stocks are able to introduce discriminatory trade
policies which would otherwise
References
(p. 325) be in violation of various provisions of the General Agreement on
Tariffs and Trade (GATT).169 GATT Article XX(b) provides that nothing in
the GATT can be construed to prevent the adoption or enforcement by a
WTO Member of a trade policy which is necessary to protect human,
animal or plant life or health. Likewise, under GATT Article XX(g), a
Member may introduce an otherwise GATT-inconsistent measure
which relates to the conservation of exhaustible natural resources if such
measures are made effective in conjunction with restrictions on domestic
production or consumption. The measures in question must also comply
with the so-called ‘chapeau’ conditions of GATT Article XX.
In the Tuna Dolphin I decision, a GATT panel held that a US embargo on
tuna caught using fishing methods which resulted in a high level of
dolphin mortality could not be justified under these provisions, as the
measure was neither ‘necessary’ for the preservation of animal health nor
sufficiently ‘related to’ the conservation of an exhaustible natural
resource, a conclusion reiterated in the Tuna Dolphin II decision.170 In
particular, the unilateral nature of the regime was seen as objectionable.
The decisions were never adopted, but were treated as received wisdom.
They were overturned when the Appellate Body returned to consider
GATT Article XX in the US—Shrimp decision, which concerned another
US embargo, this time on shrimp caught by trawlers without a device to
exclude sea turtles. The Appellate Body considered the measure as one
‘related to’ the conservation of an exhaustible natural resource,171 but
held that some negotiation with the state or states affected is required to
meet the chapeau conditions.
A similar set of circumstances also gave rise to a long-running dispute
over swordfish fisheries in the South Pacific between Chile and the
EU.172 Before the International Tribunal for the Law of the Sea (ITLOS),
Chile claimed that the EU had failed to cooperate with the coastal state in
order to ensure the conservation of highly migratory swordfish stocks in
violation of UNCLOS.173 This proceeding was issued in response to a
parallel action before the Dispute Settlement Body, claiming that Chile’s
denial of port access violated GATT Article V relating to freedom of transit
for goods.174
References
(p. 326) The parties suspended proceedings in 2001 following an
agreement for bilateral co-operation.
(C) Regulation of Whaling175
Whaling is the subject of a separate international agreement, the 1946
International Convention for the Regulation of Whaling (ICRW).176 It
established the International Whaling Commission (IWC), which plays the
role of international regulator of whaling and whaling practices. Initially
catch limits were set too high and the use of generalized units of capture
resulted in the near-extinction of several species. By 1974, a new
procedure had been introduced, and the hunting of all but the five most
populous species of whale was prohibited.177 Then in 1986 the IWC
adopted a total moratorium on all commercial whaling.178 The measure
was objected to by Japan, Norway, and the USSR, but Japan
subsequently withdrew its opposition, though it still undertakes a
programme of ‘scientific’ whaling by reference to ICRW Article
VIII(1).179 Norway returned to commercial whaling in 1994 and Iceland
has similarly resumed whaling since 2006, having left the IWC in 1992
and returned in 2002 with a (controversial) reservation to the moratorium.
6. The Seabed and Ocean Floor Beyond the
Limits of National Jurisdiction
(A) The Pre-Existing Seabed Regime180
Under classical international law, the seabed of the high seas was not
susceptible of appropriation by states, and the regime of the freedom of
the high seas applied (GCHS Article 2). Historic title and prescription
could play a role, and title to certain seabed (sedentary) fisheries (e.g.
pearl, oyster, and sponge fisheries) could be acquired on the basis of
prescription, but these were marginal exceptions, in the nature of profits à
prendre rather than involving a right to the seabed as such.181 The
category of sedentary fisheries was made effectively redundant by the
continental shelf and the EEZ.
References
(p. 327) (B) UNCLOS and the International Seabed
Authority182
During the 1960s it was asserted that exploitation of the mineral
resources of the deep seabed and ocean floor was technically possible in
areas not included in the regime of the continental shelf, and proposals
were made which would have permitted either the partition of the ocean
floor between coastal states or the development of mining operations by
individual enterprises. The prize in view took the form of allegedly vast
deposits of polymetallic nodules, principally in the Pacific and Indian
Oceans, containing manganese, nickel, copper, and cobalt.
On 1 November 1967, Dr Arvid Pardo (Malta) presented a proposal to the
First Committee of the UN General Assembly to the effect that the
seabed and its resources beyond the limits of national jurisdiction should
be declared to be part of the ‘common heritage of mankind’.183 This
proposal became a key issue of UNCLOS III. In the event UNCLOS Part
XI contained a regime for the internationalization of the mineral resources
of the deep seabed. These ‘resources’ and the ‘Area’ were declared to be
‘the common heritage of mankind’ (Article 136).
This regime applied beyond the 200nm EEZ limit, and thus overlapped
with those areas of continental shelf extending beyond that limit (see
Articles 82, 134, 142). In general the treaty regime for the mineral
resources of the Area co-existed with the legal regime of the high seas.
Thus Article 135 provided that the treaty regime would not affect the legal
status of the waters superjacent to the Area or that of the airspace above
those waters. The institutional underpinning of the regime relating to the
resources of the Area was to be the International Seabed Authority, of
which all states parties are ipso facto members, which is empowered to
organize and control activities in the Area (Article 157).184
The regime for the development of the resources of the Area had four
key elements. First, it purported to establish an erga omnes regime: no
state could claim sovereignty or sovereign rights over any part of the
Area or its resources and no state or natural or juridical person could
appropriate any part thereof (Article 137(1)). Secondly and correlatively,
activities in the Area were to be organized and controlled exclusively by
the Authority and carried out for the benefit of mankind as a
whole.185 Thirdly, exploration and exploitation of the Area would involve
parallel activities by the Enterprise (an organ of the Authority) and by
operators;186 such operators had to possess the
References
(p. 328) nationality of a state party or be effectively controlled by a party.
Fourthly, the Authority was required to provide for the equitable sharing of
the economic benefits of activities in the Area,187 but in doing so was
entitled to pay special regard to the interests of developing states.188
This was an ambitious regime, and a claim by UNCLOS parties to
represent the international public domain of the Area. But it was
vulnerable in a number of respects. First, from an economic viewpoint it
depended on sufficient recoverable resources being discovered and
being commercially exploitable (at a time of volatile demand for landbased minerals). Secondly, despite the uncertain economic prospects, a
substantial bureaucratic structure was created and had to be funded.
Thirdly, the claim of UNCLOS parties not merely to represent the
international public domain but to appropriate all its benefits was legally
problematic: nemo dat quod non habet.189 The issue of non-parties was
made even more acute in that potential seabed miners having the
nationality of and controlled by non-parties to UNCLOS or their nationals
were disqualified: they thus had no incentive to organize so as to bring
themselves within the regime, and every reason to oppose it. In an
attempt to head off such opposition, the Preparatory Commission
(Prepcom) undertook the recognition of so-called ‘pioneer investors’
(Resolution II).190
Partly for these reasons and partly out of ideological opposition to
schemes of ‘international government’, a group of states, mostly western
but eventually including Japan and Russia, developed a competing
regime of reciprocal recognition of claims to deep seabed
resources.191 This produced something of a diplomatic impasse: under
neither scheme did any significant seabed exploration, still less
exploitation, occur.
The diplomatic impasse was resolved in 1994 when the General
Assembly adopted the Agreement relating to the Implementation of Part
XI (Deep Seabed Agreement),192 thereby allowing UNCLOS to enter into
force in amended form, with the express or tacit consent of all
signatories. Under this dispensation the Deep Seabed Agreement and
UNCLOS are to be interpreted and applied together ‘as a single
instrument’
References
(p. 329) (Article 2). The Deep Seabed Agreement modified certain
aspects of Part XI in order to meet the objections raised by the US and
others.193
(C) The Amended Seabed Regime
(i) The Deep Seabed Agreement and the Mining Code
The Deep Seabed Agreement is relatively brief, consisting of 10
operative provisions, a preamble and a substantive Annex. It is largely
procedural, but its Annex includes new rules for the operation of the
seabed regime, including an agreed interpretation of certain provisions of
Part XI and new provisions regarding the operation of the Authority.
Articles 4 and 5 provide a unified and simplified approach to the granting
of state consent to be bound by UNCLOS and the Deep Seabed
Agreement operating in severalty under Article 2. The Agreement thus
modifies UNCLOS, providing alternative rules to secure universal
participation.
In 2000 the International Seabed Authority adopted the Regulation on
Prospecting and Exploration for Polymetallic Nodules in the Area
(RPNM). This is the first instrument to be promulgated by the Authority in
what is known as the Mining Code,194 a set of comprehensive rules,
regulations, and procedures to be issued by the Authority to administer
the prospecting, exploration, and exploitation of marine minerals in the
Area. In 2010 the Authority also adopted the Regulations on Prospecting
and Exploration for Polymetallic Sulphides and a third set of Regulations
on Prospecting and Exploration for Cobalt-Rich Crusts will eventually be
adopted as well. The RPNM enabled the Authority in 2001 to enter into a
series of 15-year contracts for the exploration of polymetallic nodules. In
this way the Prepcom’s regime of Resolution II came to an end.195
(ii) State liability for sponsored entities and contractors
In its Advisory Opinion on responsibility and liability for international
seabed mining,196 the Seabed Disputes Chamber of ITLOS made
several important clarifications regarding a state’s liability for private
entities that it sponsors to carry out seabed mining.
First, the basic obligation of a state in such cases is ‘to ensure’ that
‘activities in the Area’ conducted by a sponsored entity or contractor are
in conformity or compliance with UNCLOS Part XI, relevant Annexes to
UNCLOS, the regulations and procedures of the Authority, the terms of
its exploration contract with the Authority, and any other (p.
330) obligations under UNCLOS and the Seabed
Agreement.197 Sufficient due diligence on the project must also be done,
and undertaken in light of the precautionary principle, best environmental
practices, and an environmental impact assessment.198
Second, UNCLOS Article 139(2) sets out the limits of state liability in
respect of the actions of sponsored entities and contractors, and
identifies several ‘liability gaps’ in respect of which states do not bear
residual liability.199 ITLOS raised the possibility of an addition to the
Mining Code that may assign liability within these lacunae, and further
hinted that the obligation to preserve the environment of the high seas
and the seabed may be erga omnes in character.200
Finally, states must have in place effective laws and supporting
administrative regulations that oversee such operations which exceed
mere contractual safeguards. These must be ‘no less effective than
international rules, regulations and procedures’ adopted by the Authority
and other international bodies.201
References
Footnotes:
1
Still of considerable authority are the Secretariat Memo of 14 July
1950, ILC Ybk 1950/II, 67 (believed to be the work of Gidel), and the
reports of Special Rapporteur François: ILC Ybk 1950/II, 36;
ILC Ybk 1951/ II, 75; ILC Ybk 1952/II, 44; ILC Ybk 1954/II, 7. Further
McDougal & Burke, The Public Order of the Oceans (1962) 730–1007;
Bardonnet & Virally (eds), Le Nouveau droit international de la
mer (1983); O’Connell, 2 The International Law of the Sea (1984) 792–
830; Dupuy & Vignes (eds), Traité du nouveau droit de la mer (1985)
337–74; 3 Nordquist (1995); Churchill & Lowe, The Law of the Sea (3rd
edn, 1999) 203–432; Klein, Dispute Settlement in the UN Convention on
the Law of the Sea (2005); Guilfoyle, Shipping Interdiction and the Law of
the Sea (2009); Rothwell & Stephens, The International Law of the
Sea (2010) ch 7.
2
29 April 1958, 450 UNTS 82.
3
10 December 1982, 1833 UNTS 3.
4
There are currently 162 parties to UNCLOS, including the
EU: www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm
The US is conspicuous by its continuing absence ; it remains a party to
the GCHS. Some US courts have declared UNCLOS to be reflective of
customary international e.g. Sarei v Rio Tinto, 456 F.3d 1069, 1078 (9th
Cir, 2006); but cf Mank (2007) Utah LR 1085.
5
6
GCHS, Art 1.
6
Cf the reference to freedom of navigation in the EEZ in Military and
Paramilitary Activities in and Against Nicaragua (Nicaragua v US), ICJ
Rep 1986 p 14, 111–12.
7
On access to the Black Sea: the Montreux Convention Regarding the
Regime of the Turkish Straits, 20 July 1936, 173 LNTS 214. This
agreement in effect gave Turkey full control of the straits whilst
guaranteeing the free passage of civilian vessels during peacetime. The
International Court considered various questions of the delimitation of
maritime boundaries in the Black Sea in Maritime Delimitation in the
Black Sea (Romania v Ukraine), ICJ Reports 2009 p 61.
8
Following the dissolution of the Soviet Union, the political and
economic interests of the Caspian states (now Russia, Kazakhstan,
Turkmenistan, Iran, and Azerbaijan) resulted in a prolonged and fruitless
dispute over its status. Differing interpretations of the pre-existing Soviet–
Iranian treaties led to a dispute over the international law applicable to
the Caspian: e.g. Persia–Russian Socialist Federal Soviet Republic,
Treaty of Friendship, 26 February 1921, 9 LNTS 383, Art 11; Iran–USSR,
Treaty of Establishment, Commerce and Navigation, 27 August 1935,
176 LNTS 301, Arts 14, 15; Iran–USSR, Treaty of Commerce and
Navigation, 25 March 1940, 144 BFSP 419 (referring to the Caspian as a
‘Soviet–Iranian Sea’); Iran–USSR, Treaty concerning the Settlement of
Frontier and Financial Questions, 2 December 1954, 451 UNTS 250. At
the present time, the littoral states cannot agree on the overall legal
status of the Caspian, though they appear to agree on sectoral division of
the sea bed: Mehdiyoun (2000) 94 AJIL 179.
9
Mare Liberum sive de jure quod Batavis competit ad Indicana
commercia dissertatio (1609, tr Hakluyt 2004). Mare Liberum was a
chapter of De iure praedae, which was not published until unearthed in
the 19th century: De iure praedae (1868, tr Hamaker 2006). On its
significance: Blom (ed), Property, Piracy and Punishment (2009);
Feenstra (ed), Hugo Grotius Mare Liberum 1609–2009 (2009). Generally:
Fulton, The Sovereignty of the Sea (1911).
10
The extravagant Portuguese and Spanish pretensions had ended
before this. Spain supported a six-mile limit in 1760. On earlier British
claims and the general development of the concept of the territorial and
high seas: Selden, Mare Clausum (1636); Churchill & Lowe (3rd edn,
1999) 71–5.
11
Gidel, ILC Ybk 1950/II, 68.
12
Churchill & Lowe (3rd edn, 1999) 206, 426; Gidel, in Festschrift für
Jean Spiropolous (1957) 173; Oda & Owada (eds), The Practice of Japan
in International Law 1961–1970 (1982) 110–21 and the applications of
Australia and New Zealand in Nuclear Tests (Australia v France), ICJ
Reports 1974 p 253; Nuclear Tests (New Zealand v France), ICJ Reports
1974 p 457.
13
Gidel, in Festschrift Spiropolous (1957) 691. Also: SS Lotus (1927)
PCIJ Ser A No 10, 25.
14
Grotius, Mare Liberum (1609, tr Hakluyt 2004) ch 5.
15
On the modern law of maritime blockade: Guilfoyle (2010) 81 BY 9.
Also: International Committee of the Red Cross, San Remo Manual on
International Law Applicable to Armed Conflicts at Sea (1994).
16
Corfu Channel (UK v Albania), ICJ Reports 1949 p 4, 22; Nicaragua,
ICJ Reports 1986 p 14, 111–12.
17
Fisheries (UK v Norway), ICJ Reports 1951 p 116; cf 187–9 (Judge
Read, diss).
18
(1893) 28 RIAA 263, 1 IELR 43.
19
(1902) 9 RIAA 51. The seal fishery was later regulated by the
Convention between Great Britain, Japan, Russia and the United States
Requesting Measures for the Preservation and Protection of Fur Seals in
the North Pacific Ocean, 7 December 1911, 214 CTS 80.
20
28 RIAA 263, 267; 1 IELR 43, 53.
21
On these organizations: Young, Trading Fish, Saving Fish (2011) 38–
46.
22
23
UNCLOS, Arts 156–7.
On the evolution of the EEZ: Attard, The Exclusive Economic Zone in
International Law (1985); Orrego Vicuña, The Exclusive Economic
Zone (1989); Churchill & Lowe (3rd edn, 1999) ch 9; Rothwell &
Stephens (2010) ch 4.
24
24
The first claim to an exclusive fisheries zone beyond 12nm was made
by Chile and Peru in 1947, mutually recognized in the Santiago
Declaration on the Maritime Zone, 18 August 1952, 1006 UNTS 325
(Chile, Peru, Ecuador). Currently sub iudice: Maritime Dispute (Peru v
Chile) (2008, pending).
25
Convention on Fishing and Conservation of the Living Resources of
the High Seas, 29 April 1958, 559 UNTS 285. This was the least
successful of the four Geneva Conventions, having at its height only 38
parties. For the state of customary international law aft er 1958: Fisheries
Jurisdiction (UK v Iceland), ICJ Reports 1974 p 3, 24, 29; (Federal
Republic of Germany v Iceland), ICJ Reports 1974 p 175, 196, where the
Court expressed matters in terms of opposability rather than validity of
claims.
26
To be distinguished from a state’s jurisdiction to prescribe, which is not
regulated by UNCLOS but by the general law: Guilfoyle (2009) 7–10; and
see chapter 21.
27
GCHS, Art 5; UNCLOS, Art 91; Churchill & Lowe (3rd edn, 1999)
257–63.
28
This has by no means demilitarized the oceans: Oxman (1983–84)
24 Va JIL 809, 830–1.
29
On the nationality of ships: generally Constitution of the Maritime
Safety Committee of the Inter-Governmental Maritime Consultative
Organization, ICJ Reports 1960 p 150; M/V Saiga (No 2) (St Vincent and
the Grenadines v Guinea) (1999) 120 ILR 143. Also: O’Keefe (2000)
59 CLJ 428; Simmonds (1963) 12 ICLQ 56. Further: chapter 24.
30
To which will be assimilated a vessel flying a flag without authority of
the flag state and a ship sailing under the flags of two or more states,
using them according to convenience: GCHS, Art 6.2; UNCLOS, Art
92(2); Churchill & Lowe (3rd edn, 1999) 213–14.
31
Naim Molvan v AG for Palestine [1948] AC 351, 369; François,
ILC Ybk 1950/II, 36, 38; but cf UNCLOS, Art 110(1)(d), which makes
reference only to boarding, not seizure, with reference to ships without
nationality: Guilfoyle (2009) 16–18. On the status of derelict
vessels: Costa Rica Packet (1897), in Moore, 5 Int Arb 808.
32
32
Guilfoyle (2009) 26–74; Shearer, ‘Piracy’ (2010) MPEPIL. Also: Gidel,
1 Le Droit international public de la mer (1932) 303–55; Harvard
Research in International Law, Draft Convention on Piracy (1932) 26 AJIL
Supp 739; Secretariat Memorandum, ILC Ybk 1950/II, 70; Johnson
(1957) 43 GST 63 (a useful mid-20th century signpost); McNair,
1 Opinions 265–81; Shubber (1968–69) 43 BY 193 (distinguishing aircraft
hijacking from piracy); 2 O’Connell (1984) 967–83; Rubin, The Law of
Piracy (1988).
33
(1927) PCIJ Ser A No 10, 70.
34
Further: Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v Belgium), ICJ Reports 2002 p 3, 36–44 (Judge Guillaume), 53
(Judge Oda, diss), 56–7 (Judge Ranjeva), 62 (Judge Koroma), 75, 79–80
(Judges Higgins, Kooijmans & Buergenthal); O’Keefe (2002) 2 JICJ 735.
35
Note that definitions by municipal courts are often out of date, and
may involve an amalgam of municipal rules and international law, or the
narrow issue of the meaning of ‘piracy’ in an insurance policy. The
treatment in 2 Oppenheim, 610–14, presents an unusually wide
conception of piracy. For judicial essays in definition: United States v
Smith, 18 US 153, 163–80 (1820); The Serhassan Pirates (1845) 2 Wm
Rob 354; The Magellan Pirates (1853) 1 Sp Ecc & Ad 81; Republic of
Bolivia v Indemnity Mutual Marine Assurance Co [1909] KB 785; In re
Piracy Jure Gentium [1934] AC 586; Athens Maritime Enterprises
Corporation v Hellenic Mutual War Risks Association (Bermuda)
Ltd [1983] QB 647; Castle John and Nederlandse Stichting Sirius v NV
Mabeco & NV Parfin (1986) 77 ILR 537.
36
Guilfoyle (2009) 26–79. Also: the ILC draft and comment:
ILC Ybk 1956/II, 282.
37
The ILC draft did not refer to attacks by aircraft on aircraft. Further:
Tokyo Convention Act 1967 (UK), s4 and Schedule, subsequently
repealed and replaced by the Merchant Shipping and Maritime Security
Act 1997 (UK), s26(1), (3), Schedule 5, which incorporates the UNCLOS,
Art 101 definition of piracy and its associated reference to aircraft .
38
39
Guilfoyle (2009) 32–42.
39
Cf 2 Oppenheim, 751; Hall, International Law (8th edn, 1924) 314.
Further: 2 O’Connell (1984) 970–3.
40
Guilfoyle (2009) 42–5.
41
Wortley (1947) 24 BY 258.
42
Further: ILC Ybk 1956/II, 283.
43
E.g. Dickinson (1924–25) 38 Harv LR 334.
44
Guilfoyle (2009) 61–74. Concern also arose in relation to pirate
activity off the coast of South East Asia, South America, and Africa, but
did not result in much attention from the SC: Churchill & Lowe (3rd edn,
1999) 209. Further: IMO, Acts of Piracy and Armed Robbery against
Ships (MSC/Circ.4 – Series), available
at www.imo.org/blast/mainframe.asp?topic_id=334.
45
Guilfoyle (2009) 72–4; Roach (2010) 104 AJIL 397, 409–11.
46
SC Res 1816 (2008); reenacted in SC Res (2008) and annually since
that time. For a useful summary of the efforts of the IMO and Security
Council to combat piracy, Guilfoyle (2008) 57 ICLQ 690.
47
SC Res 1851 (2008).
48
Kenya has concluded Memoranda of Understanding with the US and
UK to accept and try piracy suspects apprehended off the Gulf of Aden.
Universal prescriptive jurisdiction over non-nationals captured on the high
seas is established through the provisions of the Kenyan Merchant
Shipping Act, Act No 4 of 2009, Part XVI: generally Gathii (2010)
104 AJIL 416. Also: Guilfoyle (2008) 57 ICLQ 690; Roach (2010)
104 AJIL 397; Kontorovoch & Art (2010) 104 AJIL 436; UKMIL (2010)
81 BY 453, 675–87.
49
E.g. the Nyon Agreement, 14 September 1937, 181 LNTS 137.
50
Hall (8th edn, 1924) 311, 314; Johnson (1957) 43 GST 63, 77–80.
51
For the view doubted: Hall (8th edn, 1924) 314, 318–19; 2
Oppenheim, 751–2; McNair, 1 Opinions 274–80; Lauterpacht (1939)
46 RGDIP 513; Secretariat Memorandum, ILC Ybk 1950/II, 70.
Further: van Zwanenberg (1961) 10 ICLQ 798; Green (1961)
37 BY 496; Halberstam (1988) 82 AJIL 269, 282; Garmon (2002) 27 Tul
Mar LJ 257, 265 (expanding the definition to terrorism).
52
A limitation which has existed in the law since the preparation of the
1932 Harvard Draft Convention on Piracy (1932) 26 AJIL Supp 739.
Further: Guilfoyle (2009) 32–42. This question was brought to a head in
relation to the events surrounding the Santa Maria and the Achille Lauro,
and the response was to create a new offence, not to extend the
definition of piracy.
53
Convention on the Rights and Duties of States in the Event of Civil
Strife, 20 February 1928, 134 LNTS 45, Arts 1–2.
54
E.g. Ambrose Light (1885) 25 F 408.
55
Guilfoyle (2009) 35.
56
Privateering was abolished by the Declaration of Paris, 16 April 1856,
61 BFSP 155.
57
Guilfoyle (2009) 36–7, citing Harvard Research in International Law:
Draft Convention on Piracy, (1932) 26 AJIL Supp 739, 798.
58
E.g. the activities of the NGO Greenpeace in relation to French
nuclear testing in the South Pacific, and in more recent times, the tactics
of the anti-whaling organization Sea Shepherd in relation to Japanese
whaling in the Southern Ocean: Roeschke (2009) 20 Villanova ELJ 99.
59
E.g. the Belgian Court of Cassation in Castle John and Nederlandse
Stichting Sirius v NV Mabeco & NV Parfin (1986) 77 ILR 537, which held
that a Greenpeace vessel which attacked an allegedly polluting Dutch
ship committed an act of piracy as the act in question was not political in
character, ‘but in support of a political point of view’. Further: Guilfoyle
(2009) 36–7; Geiß & Petrig, Piracy and Armed Robbery at Sea (2010) 61;
Klein, Maritime Security and the Law of the Sea (2011) 119.
60
2 Oppenheim, 750.
61
14 September 1937, 181 LNTS 137.
62
Guilfoyle (2009) 37.
63
2 Oppenheim, 736–7; 1 Gidel (1932) 299; Colombos, The
International Law of the Sea (6th edn, 1967) 311; François, First Report,
ILC Ybk 1950/II, 41; Second Report, ILC Ybk 1951/II, 81; 2 O’Connell
(1984) 802–3. Further: United States v Postal, 589 F.2d 862 (5th Cir,
1979); United States v Monroy, 614 F.2d 61 (5th Cir, 1980).
64
Generally: Guilfoyle (2009); Churchill & Lowe (3rd edn, 1999) 208–20;
McNair, 1 Opinions 229–45; Colombos (6th edn, 1967) 310–14; 1 Gidel
(1932) 288–300; McDougal & Burke (1962) 885–93; 2 O’Connell (1984)
757, 801–8, 1114–15. Also: United States v Cadena, 585 F.2d 1252 (5th
Cir, 1978).
65
McNair, 1 Opinions 233. For the contemporaneous US position, see 2
Hackworth 659–65; Moore, 2 Digest 987–1001.
66
Cf the decisions of Lord Stowell in Le Louis (1817) 2 Dods 210; and
the US Supreme Court in Antelope (1825) 10 Wheaton 66. Further:
Moore, 2 Digest 914–18.
67
E.g Hall (8th edn, 1924) 317–18 (‘when weighty reasons exist for
suspecting’); 1 Gidel (1932) 299; McNair, 1 Opinions 233, 240
(‘vehement suspicion of Piracy’); François, ILC Ybk 1951/II, 81–3;
Colombos (6th edn, 1967) 312–13; Churchill & Lowe (3rd edn, 1999)
210.
68
Itself a descendent of GCHS, Art 22(1). UNCLOS, Art 110, however,
provides for the right of visit in cases of unauthorized broadcast and
statelessness, though the latter arguably already existed as a matter of
custom: Molvan v AG for Palestine [1948] AC 351, 369.
69
On maritime aspects of the slave trade: Guilfoyle (2009) 75–7.
70
Ibid, 17–18. Also: McDougal & Burke (1966) 767, 881ff.
71
United States v Cortes, 588 F.2d 106, 110 (5th Cir, 1979); United
States v Marino-Garcia, 679 F.2d 1373, 1383 (11th Cir, 1982).
Also: Molvan v AG for Palestine [1948] AC 351, 369.
72
Cf Marianna Flora (1826) 11 Wheaton 1; Moore, 2 Digest 886.
73
ILC Ybk 1956/II, 284.
74
E.g. Hall (8th edn, 1924) 328; Colombos (6th edn, 1967) 314–15.
Also: ILC Ybk 1950/II, 61; United States v F/V Taiyo Maru, 395 F.Supp
413 (D Me, 1975); United States v Gonzales, 776 F.2d 931 (11th Cir,
1985) (purporting to enable the extension of the contiguous zone for
security reasons). Further Churchill & Lowe (3rd edn, 1999) 216–18.
Generally on the use of force under this title: Brownlie, Use of
Force (1963) 305–8. Also: chapter 33.
75
ILC Ybk 1956/II, 284. Also the Secretariat Memorandum,
ILC Ybk 1950/II, 71.
76
ICRC, San Remo Manual on International Law Applicable to Armed
Conflicts at Sea (1994) §§67–71 (purporting to codify custom).
77
Generally: Guilfoyle (2010) 81 BY 9.
78
Limited precedents include the Confederate States of America during
the US Civil War: Guilfoyle (2010) 81 BY 9, 21.
79
A/HRC/15/21, 27 September 2010, §261. Also: Guilfoyle (2010)
81 BY 9.
80
A/HRC/15/21, 27 September 2010, §264.
81
Report of the Secretary-General’s Panel of Inquiry on the 31 May
2010 Flotilla Incident, 3 September 2011, available
at www.un.org/News/dh/infocus/middle_east/Gaza_Flotilla_Panel_Report.pdf
The Israeli inquiry, The Public Commission to Examine the Maritime
Incident of 30 May 2010, 23 January 2011, available at www.turkelcommittee.gov.il/files/wordocs/8808report-eng.pdf exonerated Israeli
forces entirely.
82
McDougal & Burke (1962) 893–923; 2 Hackworth, 700–9; François,
First Report, ILC Ybk 1950/ II, 43–5; Second Report, ILC Ybk 1951/II,
89–91; Bowett, Self-Defence in International Law (1958) 82–6; McNair,
1 Opinions 253–5; 2 O’Connell (1984) 1075–93; Gilmore (1995)
44 ICLQ 949. The question of hot pursuit was among the issues raised
by I’m Alone (1935) 3 RIAA 1609. Also: Fitzmaurice (1936) 17 BY 82.
Irregularities in hot pursuit do not affect ITLOS’s prompt release
jurisdiction: The Volga (Russia v Australia) (Prompt Release) (2002) 126
ILR 433 (failure to warn within 200nm).
83
Hall, International Law (1st edn, 1880) 309.
84
ILC Ybk 1956/II, 284–5.
85
85
Itself derived from GCHS, Art 23.
86
There is a historical controversy as to whether a signal by radio meets
this criterion: Klein (2011) 110; cf ILC Ybk 1956/II, 285.
87
20 December 1841, 92 CTS 437 (Austria, Great Britain, Prussia, and
Russia. Belgium acceded. France signed but did not ratify).
88
2 July 1890, 173 CTS 293.
89
Treaty between the Allied and Associated Powers and the Kingdom of
the Serbs, Croats and Slovenes, 10 September 1919, 226 CTS 186.
90
Convention to Suppress the Slave Trade and Slavery, 25 September
1926, 60 LNTS 254.
91
Supplementary Convention on the Abolition of Slavery, the Slave
Trade, and Institutions and Practices Similar to Slavery, 7 September
1956, 226 UNTS 3.
92
Guilfoyle (2009) chs 6, 9.
93
14 March 1884, 163 CTS 391. Also: McDougal & Burke (1962) 843; 4
Whiteman 727–39.
94
E.g. Niue Treaty on Cooperation in Fisheries Surveillance and Law
Enforcement in the South Pacific Region, 9 July 1992, 32 ILM 136.
95
(1927) PCIJ Ser A No 10, 25.
96
Also: GCHS, Art 6(1).
97
ILC Ybk 1956/II, 281, citing the International Convention for the
Unification of Certain Rules relating to Penal Jurisdiction in matters of
Collisions and Other Incidents of Navigation, 10 May 1952, 439 UNTS
233.
98
Brown (1968) 21 CLP 113; Queneudec (1968) AFDI 701; Caflisch
(1972) 8 RBDI 7; 2 O’Connell (1984) 997–1012; Churchill & Lowe (3rd
edn, 1999) 328–96. On necessity as a defence: chapter 25.
99
100
29 November 1969, 970 UNTS 211.
Generally: Boyle (1985) 79 AJIL 347; Brubacker, Marine Pollution
and International Law (1993); Churchill & Lowe (3rd edn, 1999) ch 15. In
protection of the marine environment: chapter 15.
101
101
On ‘pirate’ radio: François (1965) 12 NILR 113; Bos (1965)
12 NILR 337; Woodliffe (1965) 12 NILR 365; 2 O’Connell (1984) 814–19;
Guilfoyle (2009) 170–9.
102
2 January 1965, 4 ILM 115.
103
UNCLOS, Article 109 introduces to the high seas regime the offence
of unauthorized broadcasting from the high seas, and grants the capacity
to arrest, seize, and prosecute to states affected. Further Post Office v
Estuary Radio Ltd [1968] 2 QB 740 (CA). With the end of state
monopolies on broadcasting the problem of commercial ‘pirate’ radio
stations has not recurred.
104
Churchill & Lowe (3rd edn, 1999) 218–19.
105
Generally: Guilfoyle (2009) ch 5.
106
Gilmore (1991) 15 Mar Policy 183, 185.
107
20 December 1988, 1582 UNTS 95. Further Guilfoyle (2009) 83–5.
108
E.g. Agreement to facilitate the interdiction by the United States of
vessels of the United Kingdom suspected of trafficking in drugs, 13
November 1981, 1285 UNTS 197; Treaty between the Kingdom of Spain
and the Italian Republic to Combat Illicit Drug Trafficking at Sea, 23
March 1990, 1776 UNTS 229; Agreement on Illicit Traffic by Sea
implementing Article 17 of the United Nations Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, 3 January 1995,
ETS 156. Further Siddle (1982) 31 ICLQ 726; Gilmore (1989) 13 Mar
Policy 218; Gilmore (1996) 20 Mar Policy 3.
109
UN Narcotics Convention, 28th meeting, E/CONF.82/C.2/SR.28, §7.
110
The discursive nature of this list implies that the flag state may decide
exactly how far the inquiring state may exercise its enforcement
jurisdiction. Flag states may therefore reserve their position on seizure
until evidence of illicit narcotics is discovered; Gilmore (1991) 15 Mar
Policy 183, 190; Guilfoyle (2009) 83–5. Also: UN Narcotics Convention,
29th meeting, E/CONF.82/C.2/SR.29, §§8, 108, 123–4.
111
Guilfoyle (2009) 83–4; cf Gualde (1996) 4 Sp YIL 91, 95.
112
Generally: Guilfoyle (2009) 182–226.
113
113
Protocol against the Smuggling of Migrants by Land, Sea and Air,
Supplementing the United Nations Convention against Transnational
Organized Crime, GA Res 55/25 (Annex III), 15 November 2000, Arts 3,
6.
114
Narcotics Convention, Art 17(4).
115
UNCLOS, Art 110(1)(d); Narcotics Convention, Art 17(2). Further
Guilfoyle (2009) 185.
116
Guilfoyle (2009) 186.
117
Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime, GA Res 55/25,
Annex II, 15 November 2000.
118
Obokata (2005) 54 ICLQ 445, 448; Guilfoyle (2009) 227.
119
Guilfoyle (2009) 227–8. If a person is being trafficked into outright
slavery, a right of visit and search would arise under UNCLOS, Art 110(1)
(b).
120
(2004) 98 AJIL 526; Guilfoyle (2007) 12 JCSL 1; Guilfoyle (2009) ch
9.
121
10 March 1988, 1678 UNTS 221. Further Ronzitti (ed), Maritime
Terrorism and International Law (1990); Halberstam (1988)
82 AJIL 269; Tuerk (2008) 15 U Miami ICLR 337.
122
Protocol to the Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation, 14 October 2005, IMO Doc
LEG/CONF.15/21.
123
In 1985 the Achille Lauro was hijacked by members of the
Palestinian Liberation Front (PLF) while still in port: Halberstam (1988)
82 AJIL 269; Guilfoyle (2009) 32–42.
124
Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968,
729 UNTS 161.
125
Murphy (2004) 98 AJIL 349, 355–7. A complete list of PSI bilateral
treaties can be found at www.state.gov/t/isn/trty/index.htm.
Further Guilfoyle (2005) 29 Melb ULR 733, Guilfoyle (2009) 246–54.
126
126
The first such resolution was SC Res 1373 (2001). Generally: Talmon
(2005) 99 AJIL 175; Bianchi (2006) 17 EJIL 881; Hinojosa-Martinez
(2008) 57 ICLQ 333.
127
SUA Convention, Arts 8bis(4), 8bis(5) reflect UNCLOS, Art 108(2)
and Narcotics Convention, Art 17 in relation to the interdiction of drug
shipments on the high seas.
128
3 Gidel (1934) 193–291; 4 Whiteman 343–417; François,
ILC Ybk 1952/II(2), 38; Fitzmaurice (1959) 8 ICLQ 73, 90–108; McDougal
& Burke (1962) 174–269; 1 O’Connell (1982) 260–98; Lucchini &
Voelckel, 2 Droit de la mer (1996) 202–303.
129
Fishing vessels are capable of undertaking passage, though any
unauthorized act of fishing actually occurring in the territorial waters of
the coastal state will render passage prejudicial to the interests of the
coastal state and hence not innocent.
130
Harvard Research (1929) 23 AJIL Sp Supp 295–6; 3 Gidel (1934)
227–89; Jessup (1959) 59 Col LR 234, 247–9; François, ILC Ybk 1952/II,
42–3; UN Legislative Series, Laws and Regulations on the Regime of the
Territorial Sea (1957) 361–420; McDougal & Burke (1962) 192–4, 216–
21; Oxman (1984) 24 Va JIL 809; Butler (1987) 81 AJIL 331; 1 O’Connell
(1982) 274–98; Roach & Smith, United States Responses to Excessive
Maritime Claims (2nd edn, 1996) 251–78; Hakapää, ‘Innocent Passage’
(2008) MPEPIL; Heintschel von Heinegg, ‘Warships’ (2009) MPEPIL;
US–USSR, Uniform Interpretation of Rules of International Law
Governing Innocent Passage, 23 September 1989, 28 ILM 1444, 1446.
Also: Corfu Channel, ICJ Reports 1949 p 4, 28.
131
The position may not be absolute. UNCLOS, Art 27(1) commences
with the words ‘should not’, which were deliberately chosen to exhort
restraint not impose absolute limitations: Shearer (1986) 35 ICLQ 320,
327; Churchill & Lowe (3rd edn, 1999) 95–8; Guilfoyle (2009) 11.
Nonetheless, there is some state practice suggesting the provision is
exhaustive: e.g. the US–USSR, Joint Statement on the Uniform
Interpretation of Rules of International Law Governing Innocent Passage,
23 September 1989, 28 ILM 1444.
132
133
UNCLOS, Arts 25(5), 27(2).
133
E.g. by attempting to seize a ship in order to enforce an arbitral
award where that ship is merely passing innocently through the enforcing
state’s territorial sea.
134
That is, in situations other than where the ship is lying in the territorial
sea in a manner incidental to ordinary navigation, by reason of force
majeure or in order to respond to a distress signal: UNCLOS, Art 18(2).
135
Churchill & Lowe (3rd edn, 1999) ch 5; Rothwell & Stephens (2010)
ch 11.
136
Nicaragua, ICJ Reports 1986 p 14, 111–12.
137
Generally: Kachel, Particularly Sensitive Sea Areas (2008) 202–4;
Mahmoudi, ‘Transit Passage’ (2008) MPEPIL; Kaye, ‘Torres Strait’
(2009) MPEPIL; Hakapää, ‘Innocent Passage’ (2008) MPEPIL; Bateman
& White (2009) 40 ODIL 184.
138
E.g. the pilotage regime with regard to navigation through the Great
Barrier Reef: Great Barrier Reef Marine Park Act 1975 (Cth) Part VIIA.
139
The Australian and Papua New Guinean governments succeeded in
gaining IMO support for a recommended pilotage regime for certain large
vessels and oil and gas tankers: IMO Res A.619/13, 6 November 1991.
The IMO further agreed to extend the Great Barrier Reef ’s PSSA
designation to include the Torres Strait, but did not expressly provide for
compulsory pilotage: IMO Res MEPC.133/53, 22 July 2005.
Further Bateman & White (2009) 40 ODIL 184.
140
2 Nordquist (1995) 236.
141
On fisheries: Burke, The New International Law of Fisheries (1994);
Orrego Vicuña, The Changing International Law of High Seas
Fisheries (1999); Churchill & Lowe (3rd edn, 1999) ch 14; Guilfoyle
(2009) ch 6; Young (2011); Serdy (2011) 60 ICLQ 387. On the practice
and ecology of fishing as a whole: Jennings, Kaiser & Reynolds, Marine
Fisheries Ecology (2001).
142
Grotius, Mare Liberum (1609, tr Hakluyt 2004) 25–30; Wolff, Jus
gentium methodo scientifica pertractatum (1764, tr Drake 1934) 64; cf
Vattel, Le Droit des gens (1758, tr Anon 1797) I.xxiii.§287.
143
143
Roberts & Hawkins (1999) 14 TEE 241, 241; Caddy & Garibaldi
(2000) 43 OCM 615, 649–50; Churchill & Lowe (3rd edn, 1999) 279–83.
144
Orrego Vicuña (1999) 13.
145
29 April 1958, 559 UNTS 285. Art 1(1) contains the freedom to fish.
Further Orrego Vicuña (1999) 18–21.
146
Fisheries Jurisdiction (FRG v Iceland), ICJ Reports 1974 p 175,
195; (UK v Iceland), ICJ Reports 1974 p 4, 26.
147
Churchill & Lowe (3rd edn, 1999) 285; Orrego Vicuña (1999) 15–17.
148
Guilfoyle (2009) 101.
149
FAO International Plan of Action to Prevent, Deter and Eliminate
Illegal, Unreported and Unregulated Fishing, 23 June 2001, §18,
available at www.fao.org/docrep/003/y1224e/y1224e00.htm.
150
The Lacey Act, 16 USC §§3371–8, makes it a crime for US nationals
to violate any applicable fisheries regulations anywhere, effectively coopting other states’ conservation measures adopted under UNCLOS. For
prosecutions: United States v Cameron, 888 F.2d 1279 (9th Cir, 1989)
(violating International Pacific Halibut Commission regulations); Wood v
Verity, 729 F.Supp 1324 (SD Fla, 1989) (violating Bahamian EEZ
regulations). Also: the forfeiture proceedings in United States v 594,464
Pounds of Salmon, More or Less, 687 F.Supp 525 (WD Wash, 1987)
(violation of Taiwanese Salmon regulations); United States v Proceeds
from Approximately 15,538 Panulirus Argus Lobster Tails, 834 F.Supp
385 (SD Fla, 1993) (Turks and Caicos Islands fishing restrictions); United
States v 144,774 Pounds of Blue King Crab, 410 F.3d 1131 (9th Cir,
2005) (Russian Federation fishing and resource protection laws).
151
Species of fish which migrate from salt to fresh water to breed, such
as the various species of Pacific salmon: UNCLOS, Art 66.
152
Species of fish which migrate from fresh to salt water to breed, such
as the freshwater eels of the genus Anguilla: UNCLOS, Art 67.
153
E.g. Convention on the Conservation and Management of Fishery
Resources in the South East Atlantic Ocean, 20 April 2001, 41 ILM 257
(2002) (SEAFOC); Convention on the Conservation of Antarctic Marine
Living Resources, 20 May 1980, 19 ILM 841 (1982) (CCAMLR);
Convention for the Conservation of Southern Bluefin Tuna, 10 May 1993,
1819 UNTS 360 (CCSBT); Treaty between the Government of Canada
and the United States of America concerning Pacific Salmon, 28 January
1985, 1469 UNTS 358 (PST).
154
SEAFOC, Art 6(3)(k)–(l); CCAMLR, Art IX(1)(c)–(d); CCSBT, Arts
5(2), 8(1); PST, Arts II(17), XIV(c).
155
SEAFOC, Art 6(3)(a)–(b), (g)–(h); CCAMLR, Art IX(1)(e), (1)(f), (2),
XI; CCSBT, Art 8(2); PST, Art II(8).
156
SEAFOC, Arts 6(3)(c), (8)(a)–(c); CCAMLR, Art IX(1)(f), (2)(a)(g);
CCSBT, Art 8(3)(a), (4); PST, Art IV(3), (4), (5).
157
SEAFOC, Arts 6(3)(c), 8(d)–(e); CCAMLR, Art IX(1)(f), (2)(h);
CCSBT, Art 8(3)(b), (4); PST, Art IV(3)–(5).
158
SEAFOC, Art 9; CCAMLR, Art XXV; CCSBT, Art 16; PST, Art XXI,
Annex III. The capacity for these provisions to oust the jurisdiction of an
ITLOS tribunal under UNCLOS, Part XV and Annex VII was highlighted in
the Annex VII tribunal decision in the Southern Bluefin Tuna decision,
which concerned CCSBT, Art 16: Southern Bluefin Tuna (Australia and
New Zealand v Japan) (2000) 119 ILR 508. The decision has been
criticized heavily: Boyle (2001) 50 ICLQ 447; Boyle, ‘Southern Bluefin
Tuna’ (2008) MPEPIL.
159
Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982
Relating to the Conservation and Management of Straddling Fish Stocks
and Highly Migratory Fish Stocks, 4 December 1995, 2167 UNTS 3.
160
Orrego Vicuña (1999) 201; Churchill & Lowe (3rd edn, 1999) 309–10;
Guilfoyle (2009) 103.
161
Notwithstanding the use of the term ‘states parties’ here, the
Straddling Stocks Agreement makes reference throughout to ‘states’,
raising a question whether the Agreement purported to require even nonstates parties to comply with its provisions: Guilfoyle (2009) 104. The
Chairman of the draft ing conference, however, reiterated the parties’
understanding that the Agreement was to apply to states parties
only: Rayfuse (1999) 20 AYIL 253, 268.
162
162
Balton (1996) 27 ODIL 125, 138. Also: Guilfoyle (2009) 104.
163
Straddling Stocks Agreement, Art 21(1). Further Churchill & Lowe
(3rd edn, 1999) 310; Guilfoyle (2009) 106.
164
Straddling Stocks Agreement, Art 21(5).
165
Ibid, Art 21(6).
166
Ibid, Art 21(7).
167
Ibid, Art 21(12).
168
Generally: Young (2011) ch 5.
169
Marrakesh Agreement Establishing the World Trade Organization
(Annex 1A: GATT 1994), 15 April 1994, 1867 UNTS 187.
170
US—Restrictions on the Imports of Tuna (1991) 30 ILM 1594; US—
Restrictions on the Imports of Tuna (1994) 33 ILM 839.
Further Matsushita, Schoenbaum & Mavroidis, The World Trade
Organization (2nd edn, 2006) 794–6. The decisions prompted vigorous
criticism from those who wish to see a stronger link between trade and
the environment: e.g. Charnovitz (1994) 27 Cornell ILJ 459; Charnovitz
(1993) 6 GIELR 1; Bhagwati, in Zaelke et al (eds), Trade and the
Environment (1993) 159; cf Petersmann (1993) 27 JWT 43.
171
WTO Doc WT/DS58/AB/R, 12 October 1998, §§134–42. For
commentary: Howse (2002) 27 Col JEL 491; Mann (1998) 9 Ybk
IEL 28; Schoenbaum (1998) 9 Ybk IEL 35; Wirth (1998) 9 Ybk IEL 40.
172
Generally: Stoll & Vöneky (2002) 62 ZaöRV 21.
173
Conservation and Sustainable Exploitation of Swordfish Stocks in the
South-Eastern Pacific Ocean, Order of 20 December 2000 [2000] ITLOS
Rep 148.
174
Request for Consultations: Chile—Swordfish, WTO Doc
WT/DS193/1, 26 April 2000. Request for Establishment of a Panel: Chile
—Swordfish, WTO Doc WT/DS193/2, 7 November 2000.
175
176
Generally: Gillespie, Whaling Diplomacy (2005).
2 December 1946, 161 UNTS 72; amended by the Protocol to the
International Convention for the Regulation of Whaling, 19 November
1956, 338 UNTS 336.
177
Churchill & Lowe (3rd edn, 1999) 317–18.
178
Whaling Convention, Schedule, §10(e).
179
In May 2010, Australia filed a challenge to Japan’s whaling
programme in the International Court: Whaling in the Antarctic (Australia
v Japan) (2010, pending).
180
1 Gidel (1932) 493–501; François, ILC Ybk 1951/II, 94–9; O’Connell
(1955) 49 AJIL 185; 1 O’Connell (1982) 449–57; Churchill & Lowe (3rd
edn, 1999) 223–54; Nandan, in Freestone, Barnes & Ong (eds), The Law
of the Sea (2006) 75.
181
McNair, 1 Opinions 258–64.
182
Anand, Legal Regime of the Seabed and the Developing
Countries (1976); Bennouna (1980) 84 RGDIP 120; Kronmiller, 1–3 The
Lawfulness of Deep Seabed Mining (1980–81); Paolillo (1984) 188
Hague Recueil 135; Dupuy & Vignes (eds), Traité du nouveau droit de la
mer (1985) 499–686; Brown, 1–3 Sea-Bed Energy and Mineral
Resources and the Law of the Sea (1986); Joyner (1986) 35 ICLQ 190;
Churchill & Lowe (3rd edn, 1999) 223–54.
183
Churchill & Lowe (3rd edn, 1999) 224–9.
184
UNCLOS, Art 157. For the delimitation of the outer limits of the
continental shelf (and therefore of the Area): chapter 12.
185
UNCLOS, Arts 137(2), 140, 150(i), 153(2), 156, 157. Also: Art 149
(‘Archaeological and historical objects’).
186
UNCLOS, Art 153.
187
UNCLOS, Arts 140(2), 160(2)(f)(i).
188
UNCLOS, Arts 140(1), 144(2), 148, 150, 152(2), 160(2)(f)(i).
Reference was also made to the ‘special need’ of the land-locked and
geographically disadvantaged states among the developing states: Arts
148, 152(2), 160(2)(k).
189
Bennouna (1980) 84 RGDIP 120; 2 Brown (1986); 1 Kronmiller
(1981) 207–521; Malone (1983) 46 LCP 29.
190
190
Churchill & Lowe (3rd edn, 1999) 230–1. Registrations were lodged
of sites for India, France, Japan, and the USSR with respect to eight
investors.
191
Deep Seabed Hard Mineral Resources Act 1980 (US), 19 ILM 1003,
and equivalent interim legislation passed by France, Germany, Italy,
Japan, Russian Federation, and UK; Agreement concerning Interim
Arrangements relating to Polymetallic Nodules of the Deep Seabed, 2
September 1982, 21 ILM 950 (France, Germany, US, UK); Provisional
Understanding Regarding Deep Seabed Matters, 3 August 1984, 23 ILM
1354 (Belgium, France, Germany, Italy, Japan, the Netherlands, UK, US).
Also: Agreement on the Resolution of Practical Problems with Respect to
Deep Seabed Mining Areas, 14 August 1987 (Canada, Belgium, Italy,
Netherlands, USSR); Exchange of Notes between the United States and
the Parties to the Agreement, 14 August 1987, 26 ILM 1502.
192
Agreement relating to the Implementation of Part XI, 28 July 1994,
1836 UNTS 3.
193
Nash (1994) 88 AJIL 733; Oxman (1994) 88 AJIL 687; Sohn (1994)
88 AJIL 696; Charney (1994) 88 AJIL 705.
194
Available at www.isa.org.jm/en/documents/mcode.
195
Oude Elferink & Rothwell, Oceans Management (2004) 341–5.
196
Obligations of States Sponsoring Persons and Entities with Respect
to Activities in the Area, ITLOS Case No 17 (Advisory Opinion, 1
February 2011).
197
Ibid, §§103–4.
198
Ibid, §§110–20, 125–37, 141–50, 148. Further Southern Bluefin
Tuna (1999) 117 ILR 148.
199
Seabed Advisory Opinion, ITLOS Case No 17, §204.
200
Ibid, §180 (citing ARSIWA, Art 48).
201
Ibid, §241; UNCLOS Art 209(2).
Part V The Environment and Natural Resources
(p. 333) 14 Common Spaces and Co-operation
in the Use of Natural Resources
1. Introduction
The world’s resources and environment are at the same time shared and
partitioned, indivisible and divided. A world of sovereigns creates the
greatest collective action problem in history: international law is both the
product of this world and one of the few tools at our disposal for
addressing the problem. Yet apart from the concepts of res communis as
applied to the high seas and outer space, and ‘the common heritage of
mankind’ as variously and vaguely applied to the atmosphere and the
oceans,1 international law depends to a great extent on voluntarist
devices, in the form of treaties, agreements, international agencies, and
organizations, in order to regulate access to resources not located wholly
within national territory. Indeed, the use of such devices in the political
conditions of the past led to a situation where the law appeared to
prevent developing states from having control over their own resources,
creating by way of backlash a demand for a ‘new international economic
order’.2
Apart from such questions of economic self-determination, the subject as
a whole is concerned with machinery, organization, and also the
influence of technical considerations to a degree uncommon in other
areas of the law. Customary international law plays a role, at times a
dynamic role, but caution is needed to avoid postulating as rules what are
in truth local or temporary factors. Moreover the agenda evolves with (p.
334) changes in technology: in the 1960s lawyers were concerned with
activities such as atmospheric nuclear testing with potential to seriously
affect the environment; more recently the concerns surrounding
anthropogenic climate change have prompted the development of an
international climate change regime.3
The following sections briefly identify some legal issues that can arise in
connection with the use of shared resources; the generation and use of
energy and other uses of transboundary water resources, and other
forms of transboundary co-operation, as well as issues specific to the
polar regions and outer space.
2. CO-Operation in the Generation and Use of
Energy
(A) Nuclear Energy and the Non-Proliferation Treaty4
The utilization of atomic energy for peaceful purposes has been a major
field for cooperation between states, and between organizations and
states, for several reasons: its relation to questions of security and
disarmament; its (controversial) contribution to dealing with
anthropogenic climate change by providing a non-fossil-fuel-based
energy source; the immense cost of development, and the risk posed to
human health by nuclear accidents. The most important organization, the
International Atomic Energy Agency (IAEA), was established in
1957.5 The IAEA provides assistance of various kinds for the
development of atomic energy in particular states under a system of
inspection and control to ensure, inter alia, that the aid is not used for
military purposes. Following the increased concern about nuclear
reactors after the Chernobyl accident,6 the IAEA oversaw the
development of two new international agreements: the Convention on
Nuclear Safety7 and the Joint Convention on the Safety of Spent Fuel
and Radioactive Waste Management.8 The disaster at the Fukushima
nuclear plant in Japan in 2011 has raised fresh concerns about the risks
of nuclear power, and the regime is under scrutiny once again.9
References
(p. 335) Other relevant agencies include the European Atomic Energy
Community (Euratom)10 and the Nuclear Energy Agency of the
Organisation for Economic Co-operation and Development (OECD).11
As for the use of nuclear energy for non-peaceful purposes, international
law does not contain a comprehensive prohibition of the threat or use of
nuclear weapons as such, although it is unlikely that any actual use of
nuclear weapons would be consistent with international law.12 The
current nuclear disarmament regime consists primarily of the Treaty on
the Non-Proliferation of Nuclear Weapons (NPT),13 the Partial Test Ban
Treaty of 1963,14 and the Comprehensive Nuclear Test Ban Treaty
(CTBT).15 CTBT bans all nuclear explosions on earth, whether for military
or peaceful purposes, and sets up a global verification regime monitored
by the CTBT Organization. It was opened for signature in 1996 but is not
yet in force, pending ratification by nine of the 44 ‘Annex 2 states’, being
those states that possess nuclear technology. Pressure is mounting on
those states that are yet to ratify, including the US, Iran, China, and
Israel. There is also a strong movement to conclude a multilateral
convention banning nuclear weapons, supported by over 130 states at
the NPT Review Conference in 2010.16 However, the regime has faced
many challenges, including North Korea’s continued testing of weapons
and its withdrawal from the NPT,17 growing concern over Iran’s nuclear
programme,18 and an apparently contradictory special deal between the
US and India.19 French nuclear testing in the South Pacific has been the
subject of disputes before the International Court.20 It is unlikely CTBT
will come into force in the near future,21 and the conclusion of a
multilateral ban could take decades. Nonetheless, recent steps taken by
the US, including negotiating Strategic Arms Reduction treaties
References
(p. 336) with Russia22 and pursuing CTBT ratification in the Senate,
suggest that the only nuclear power to have actually used nuclear
weapons is once more (and for the time being) ready to take a
responsible role in the move towards nuclear disarmament.
(B) The Energy Charter Treaty23
The Energy Charter Treaty, together with the Protocol on Energy
Efficiency and Related Environmental Aspects,24 establishes an
ambitious multilateral regime for energy cooperation, building on the
25
political declaration of the 1991 European Energy Charter25 following the
collapse of the Soviet Union. The Charter was an attempt to accelerate
economic recovery in Eastern Europe through co-operation in the energy
sector. Its current membership reflects the growing importance of the
Asian energy market. There are 52 members including the European
Union. Russia signed the Treaty in 1994, but in 2009 announced its
intention not to ratify the Treaty; provisional application ended on 18
October 2009 in accordance with Article 45(3)(a).26
The Treaty includes provisions on energy-related foreign investment and
trade, dispute resolution, and energy efficiency. The investment regime is
particularly noteworthy, being the first such regime contained in a widely
ratified multilateral agreement. The regime is divided into pre-investment
and post-investment provisions. The pre-investment provisions govern
market access, and are largely framed as ‘best endeavours’
undertakings. By contrast, the post-establishment regime provides for
binding obligations resting on the principles of most-favoured nation and
national treatment. A salient feature is the inclusion of the right for foreign
private investors to initiate compulsory arbitration proceedings against
non-compliant state parties (Article 26).
(C) Other Cases
Further areas of concern in the sharing of energy resources include the
creation and maintenance of transnational energy grids and the
international transport of energy. Liberalization of energy-related trade
has proceeded apace but the corresponding extension and integration
between national grids has not kept up. As yet there are no multilateral
instruments governing transnational energy grids, but there
References
(p. 337) are proposals for extensive integrated grids in Northern
Europe,27 and progress has been made with hydropower development
and power interconnection in the Greater Mekong Subregion.28 The
Association of South East Asian Nations (ASEAN) signed an Agreement
on ASEAN Energy Cooperation in 1986 and is working towards the
establishment of an ASEAN power grid, as well as trans-ASEAN gas
29
pipelines.29 Initiatives such as these present numerous legal and political
challenges.
Article 7 of the Energy Charter Treaty provides that parties shall facilitate
free transit of energy materials and products on a non-discriminatory
basis, and shall ‘encourage relevant entities to cooperate’ in
modernization, development, and operation of the infrastructure required
for the transport of energy, such as transmission lines and pipelines.
Various European states have declared that Article 7 is subject to general
and conventional international law on jurisdiction over submarine cables
and pipelines, reflected in Article 7(8). The transport of nuclear energy is
governed by IAEA Regulations and the Convention on Physical
Protection of Nuclear Material.30
3. Transboundary Water Resources
(A) Shared Freshwater and Canals
(i) Shared freshwater resources31
The term ‘international’ with reference to a body of water is merely a
general indication of rivers and reservoirs which geographically and
economically affect the territory and interests of two or more states.
Conceivably a body of water could be ‘internationalized’, that is, given a
status entirely distinct from the territorial sovereignty and jurisdiction of
any state, on the basis of treaty or custom, general or regional. Rivers
separating or traversing the territories of two or more states are usually
subject to the territorial jurisdiction of riparian states up to the medium
filum aquae, taken to be
References
(p. 338) the deepest channel of navigable waters or thalweg.32 But there
are exceptions where some other boundary is agreed—for example the
River San Juan, which forms part of the boundary between Nicaragua
and Costa Rica, runs wholly in Nicaragua: the boundary is the right bank
of the river on the Costa Rican side. However, the border treaty between
the riparians also provides Costa Rica with a right of navigation on the
San Juan ‘con objetos de comercio’.33 This right and its qualifier were
considered in Navigational Rights, with the International Court
determining, inter alia, that the phrase meant ‘for the purposes of
commerce’, thereby ascribing to Costa Rica the right to carry goods and
passengers on the river,34 as well as finding that persons so travelling
were not required to obtain Nicaraguan visas or make payment to
Nicaragua.35
The legal regime of rivers, creating rights for other riparians and nonriparian states and limiting the exercise of territorial jurisdiction for
individual riparians, consists to a large extent of treaty law, and the
International Court has focused on the terms of the particular treaty,
making secondary reference to general international law or local custom.36 Broadly, there are different legal regimes for navigational and nonnavigational uses of rivers.37 The early assumption that navigational uses
enjoyed primacy is no longer accurate; irrigation, hydro-electricity
generation, and industrial uses are now more prominent in many regions
than navigation, fishing, and floating of timber, and domestic use is
growing rapidly.
Lac Lanoux concerned the interpretation of a treaty between France and
Spain. However, the tribunal made observations on certain Spanish
arguments based on customary law. On the one hand, the tribunal
seemed to accept the principle that an upstream state is acting unlawfully
if it changes the waters of a river in their natural condition in a way that
could do serious injury to a downstream state. On the other, the tribunal
stated that ‘the rule according to which States may utilize the hydraulic
force of international watercourses only on condition of a prior agreement
between the interested States cannot be established as a custom, or
even less as a general principle of law’.38
References
(p. 339) The issues of liability for changes in the flow of a river as
between riparian states will be determined within the framework of the
law of treaties in combination with the principles of state responsibility, as
in Gabčíkovo-Nagymaros. At the same time the Court referred to the
‘basic right’ of Hungary ‘to an equitable and reasonable sharing of the
resources of an international watercourse’.39 The case was in some
respects special since a boundary river was involved.
In the case of navigable rivers it is accepted that customary law does not
recognize a right of free navigation.40Only a minority of states have
accepted the Barcelona Convention and Statute on the Regime of
Navigable Waterways of International Concern of 1921,41 which provides
for free navigation as between the parties on navigable waterways of
international concern. Several treaty regimes for specific river systems
provide for free navigation and equality of treatment for riparian states
only.42 By contrast the treaty regime for the Danube has long conferred
rights of navigation on non-riparians. The Belgrade Convention of 1948
maintained free navigation for all states whilst retaining powers of control
for riparian states.43 Navigation by warships of non-riparian states is
prohibited. In construing a treaty which creates machinery for supervision
of an international regime of navigation, a tribunal may prefer not to
employ a restrictive interpretation of the powers of the agency of control
as against the territorial sovereigns.44
In the River Oder case, the Permanent Court, referring to the various
conventions since the Act of the Congress of Vienna in 1815, stressed
the ‘community of interest of riparian States’ which in a navigable river
‘becomes the basis of a common legal right, the essential features of
which are the perfect equality of all riparian States in the use of the whole
course of the river and the exclusion of any preferential privilege of any
one riparian State in relation to the others’.45
In 1966 the International Law Association (ILA) adopted the Helsinki
Rules on the Uses of Waters of International Rivers as a statement of
existing international law covering both navigational and non-navigational
uses.46 The ILA also adopted the
References
(p. 340) comprehensive revised Berlin Rules on Water Resources in
2004.47 The International Law Commission worked on the topic for over
20 years, culminating in the adoption of the Convention on the Law of
Non-Navigational Uses of International Watercourses in 1997. Part II of
the Convention sets out general principles for watercourses, including
factors to be considered for ensuring equitable and reasonable utilization
and participation, the avoidance of significant harm and how to remedy it,
and general obligations of co-operation including sharing of information.
Part III contains detailed provisions on prior notification of planned
measures. In the absence of agreement no particular use of the
watercourse enjoys inherent priority over others.48
A further advance occurred in Gabčíkovo-Nagymaros. There, the Court
considered a dispute arising from a 1977 agreement between
Czechoslovakia and Hungary to dam the Danube River in their respective
territories in order to produce hydroelectric power in peaking mode.
When Hungary refused to construct its dam due to environmental
concerns, Slovakia diverted the river further onto its territory and built a
second upstream dam—a contingency known as ‘Variant C’. The
question was whether Slovakia was entitled to undertake Variant C
despite the objections of its co-riparian. The Court noted that not only
was the Danube a shared international watercourse, but also an
international boundary river to which the principle of perfect equality
between riparian states applied. Thus, by unilaterally diverting the
Danube, Czechoslovakia assumed control of a shared resource and
deprived Hungary of its right to a reasonable and equitable share thereof.
In so deciding, the Court extended the principle in the River Oder case to
non-navigational uses of watercourses.49
(ii) International canals
Canals are in principle subject to the territorial sovereignty and
jurisdiction of the state or states which they separate or traverse. Where
the canal serves more than one state or otherwise affects the interests of
more than one state a treaty regime may be created to regulate use and
administration. The history of three canals of international concern has
provided the basic materials for jurists seeking to establish general rules.
The Suez Canal was built and opened in 1869 under a private law
concession for 99 years granted by the Egyptian government to the
Universal Suez Maritime Canal Company. For most of its history the latter
was a joint Franco-Egyptian company with aspects of its existence and
functioning subjected to either French or Egyptian law. The British
government was the largest shareholder. Eventually the affairs of the
Canal were regulated by the Convention of Constantinople in
1888.50 Article I provided that the Canal ‘shall always be free and open,
in time of war as in time of peace, to every
References
(p. 341) vessel of commerce or of war, without distinction of flag’. The
parties agreed not to interfere with the free use of the Canal and not to
subject it to the right of blockade.
In 1954 Britain and Egypt agreed on British withdrawal from the Suez
Canal base; the parties recognized that the Canal ‘which is an integral
part of Egypt, is a waterway economically, commercially and strategically
of international importance’.51 In 1956 the Egyptian government
nationalized the Canal Company, under a law providing for
compensation,52 but made no claim to alter the status of the Canal itself.
Britain, France, and other states argued for the illegality of this measure,
linking the status of the Company and the concession with the status of
the Canal, and alleging that the nationalization was incompatible with the
‘international status’ of the Canal. As a result of the Franco-British
invasion later in the same year Egypt abrogated the 1954
Agreement.53 On 24 April 1957 Egypt made a declaration confirming the
rights and obligations arising from the Convention of Constantinople: the
Declaration was registered under Charter Article 102, although in law it
was a unilateral act.54
Until 1978 the Panama Canal Zone was occupied and administered by
the US, independently of Panama, under the Hay–Bunau–Varilla Treaty
of 1903,55 which provided that the Canal should be neutral in perpetuity
and open to the vessels of all nations. Even before this, the Hay–
Pauncefote Treaty had guaranteed free navigation, even in time of war, in
terms borrowed from the Convention of Constantinople.56 But by a Treaty
of 1977 (as amended in 1978), Panama was recognized as ‘territorial
sovereign’ with rights of management of the Canal granted to the US for
the duration of the Treaty.57
The Kiel Canal, though important for international commerce, was
controlled by Germany untrammelled by special obligations until, in the
Treaty of Versailles, it was provided that, except when Germany was a
belligerent, the Canal was to be open to vessels of commerce and of war
of all nations on terms of equality (Article 380). In 1936 the relevant
provisions of the Treaty of Versailles were denounced by Germany, and
other states seem to have acquiesced in this.58
It is doubtful if the existing materials justify any general principle of
international canals. But there is some authority to the contrary in The SS
Wimbledon. In 1921 a British vessel chartered by a French company, en
route to Danzig with munitions for the Polish government, was refused
access to the Kiel Canal. The issue was whether, given that Poland and
Russia were at war, Germany was justified in holding that
References
(p. 342) Article 380 of the Versailles Treaty did not preclude the
observance of neutrality. The judgment, in upholding an expansive
interpretation of the right of transit, referred to the Suez and Panama
Canals as ‘precedents’ which were
merely illustrations of the general opinion according to which when an artificial waterway
connecting two open seas has been permanently dedicated to the use of the whole
world, such waterway is assimilated to natural straits in the sense that even the passage
of a belligerent man-of-war does not compromise the neutrality of the sovereign State
under whose jurisdiction the waters in question lie.59
It will be noted that this proposition was ancillary to an exercise in treaty
interpretation and that even the general proposition depends on the
incidence of ‘permanent dedication’. Moreover, interested states are
reluctant to generalize: in 1956 the US regarded the Suez Canal as
having an ‘international status’, while denying this in the case of the
Panama Canal.60
(B) Joint Boundary Commissions
Joint boundary commissions have been used to facilitate trans-border cooperation and the resolution of boundary disputes between neighbouring
states for centuries, with the Ottoman commissions in the late 1400s,61 or
the Caro-Ornano commission attempting to negotiate the border between
France and Spain in the 1780s.62 Today there are 72 joint boundary
commissions operating in different regions of the world.
Traditionally the primary function of a boundary commission has been to
delimit or demarcate and maintain the boundary, frequently as part of a
peace settlement or dispute resolution process. Commissions are often
also involved in ongoing cross-border water and environmental
management.63 They are usually established by treaty, and can be
temporary or permanent. Examples include the Canada/US International
Joint Commission,64the US/Mexico International Boundary and Water
Commission,65 and the Cameroon/Nigeria Mixed Commission.66
References
(p. 343) In Pulp Mills, the Court had occasion to consider the role of the
Administrative Commission of the River Uruguay (CARU), as established
by the 1975 Statute of the River Uruguay.67 The Statute established
CARU as a co-operative interface between Argentina and Uruguay for
management of the river, a position that the Court took seriously.
Accordingly, when Uruguay failed to inform Argentina through CARU that
it was ready to issue initial environmental approval for two contested pulp
mills, the Court held it to be in breach of its international obligations.68
(C) Joint Development Zones69
Since the Second World War the jurisdiction of coastal states over marine
resources (living and non-living) has expanded dramatically.70 The need
for co-operation in the exploitation of such resources in areas that are
subject to competing unresolved territorial claims, or where the resources
straddle maritime boundaries, has led to the practice among states of
establishing joint development zones (JDZs). In other cases the
establishment of a JDZ may actually be a permanent alternative to
drawing a definitive boundary line.
The practice of establishing JDZs as an interim measure to enable
exploitation to proceed for the benefit of two or more states with
overlapping claims is reinforced by UNCLOS Articles 74(3) and 83(3),
which provide that pending agreement on the delimitation of the EEZ or
continental shelf, respectively, the states concerned ‘shall make every
effort to enter into provisional arrangements of a practical
nature’.71 These arrangements are set down in bilateral treaties,
governing matters such as the allocation of rights and obligations arising
from exploitation activities, supervision and management of the
exploitation, protection of the marine environment, inspection rights, and
dispute settlement.72
JDZs are important both in the context of non-living resources, such as
off shore hydrocarbon deposits,73 and for the exploitation, conservation,
and management of transboundary fish stocks.74 Examples include
zones established between Nigeria and
References
(p. 344) São Tomé and Principe;75 Indonesia and Australia;76 and various
arrangements in North East Asia.77
(D) Land-Locked States and Enclaves
There are 43 land-locked states (plus Kosovo) and numerous enclaves
detached from the metropolitan territory and lacking access to the
sea.78 Rights of transit, particularly for trade purposes, are normally
arranged by treaty, but they may exist by revocable licence or local
custom.79 A right of transit may be posited as a general principle of law in
itself or on the basis of a principle of servitudes or other general
principles of law.80 However, a general right of transit is difficult to
sustain.
Against this unpromising background must be considered various
attempts to improve the legal position of land-locked states. At UNCLOS I
the Fift h Committee considered the question of free access to the sea of
land-locked states. The result was Article 3 of the Convention on the High
Seas,81 which provides for free transit on a basis of reciprocity, and equal
treatment in respect of port access and use. Article 4 recognized the right
of every state, whether coastal or not, to sail ships under its flag on the
high seas. The UN Convention on the Transit Trade of Landlocked
82
States82 adopts the principle of free access and sets out the conditions
under which freedom of transit will be granted. The Convention provides
a framework for the conclusion of bilateral treaties and is not directly
dispositive with respect to rights of access.
UNCLOS Part X is devoted to the ‘right of access of land-locked states to
and from the sea and freedom of transit’ (Articles 124 to 132).83 The key
provision is Article 125, which provides for land-locked states to enjoy
freedom of transit through the territory of transit states by all means of
transport (Article 125(1)), in accordance with bilateral, subregional, or
regional agreements between the land-locked states and transit states
(Article 125(2)). Article 125(3) provides that transit states have the right to
take all measures necessary to ensure their legitimate interests are not
thereby infringed. While this article constitutes a clear recognition of the
principle involved, the modalities called for in paragraphs (2) and (3) must
involve substantial qualifications in practice.
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(p. 345) Thirty-one of the land-locked states are developing states,
among them 16 least developed countries.84 The economic
marginalization and special needs of these countries were recognized in
the Millennium Declaration and at subsequent international conferences,
leading to the convening of an international ministerial conference on the
issue in 2003.85 The conference resulted in the adoption of the Almaty
Declaration and Programme of Action, setting as priorities the
strengthening of transit transport cooperation, infrastructure, and trade for
the benefit of developing land-locked and transit states. The UN Office of
the High Representative for the Least Developed Countries, Landlocked
Developing Countries and Small Island Developing States, established in
2001, has a primary role in co-ordinating and monitoring
implementation.86
4. The Polar Regions87
(A) Antarctica
The issues arising from territorial claims in polar regions were outlined in
chapter 10. The object of the Antarctic Treaty is to ensure that Antarctica
is used for peaceful purposes only, to promote international scientific cooperation within Antarctica and also to put aside disputes about territorial
sovereignty.88 Military personnel and equipment may be used in pursuing
peaceful purposes. Nuclear explosions, for whatever purpose, are
prohibited. The treaty applies to the area south of 60°S, and includes all
the shelves but reserves the rights of states (not only contracting parties)
with regard to the high seas in the area (Article VI).
Article IV reserves the rights and claims of contracting parties to territorial
sovereignty in the area; also the legal position of the non-recognizing
states.89 Thus states with outstanding claims are protected from new
sources of competition, while non-claimants are free to pursue scientific
research without seeking permission.90
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(p. 346) Two other matters may be mentioned. First, there is a liberal
inspection system involving a right to designate observers unilaterally
and provision for complete freedom of access for such observers at any
time to all areas of Antarctica. Secondly, jurisdiction cannot in the context
rest on the principle of territoriality. From the jurisdictional point of view
the area is treated as res nullius and the nationality principle governs.
However, general principles will have to be resorted to when a national of
one party commits an offence or civil wrong against a national of another
party or of a non-party.91
Three instruments supplement the regime: the Convention on the
Conservation of Antarctic Seals (1972),92 the Convention on the
Conservation of Antarctic Marine Living Resources (1980),93 and the
Protocol on Environmental Protection to the Antarctic Treaty
(1991).94 Whaling disputes, continental shelf claims, prospecting for
offshore hydrocarbon resources, and the effects of climate change
present significant challenges to the Antarctic treaty system.95
(B) The Arctic
No overarching regime equivalent to the Antarctic Treaty system
operates in the Arctic,96 which is instead governed largely by the law of
the sea,97 as well as various multilateral and bilateral agreements on
specific issues,98 soft law declarations and understandings, and the
domestic legislation of the eight Arctic states.99These states work
together to implement the Arctic Environmental Protection Strategy, also
known as the Rovaniemi Process.100 In 1996 they created the Arctic
Council as a forum for intergovernmental co-operation and co-ordination
on issues of sustainability and
References
(p. 347) environmental protection in the region. Several indigenous
organizations are recognized as permanent participants in the Council.
The presence of a permanent human population in the Arctic (around 4
million people), the fact that there is no land territory underlying the Arctic
ice cap, and other fundamental differences mean many of the successful
measures of the Antarctic regime could not feasibly be transposed
there.101 Prominent areas of environmental concern in the Arctic include
the melting of the sea ice and other effects of global warming, particularly
for the indigenous peoples of the region; mineral exploitation; pollution;
and the protection of living resources.102There are also numerous
sources of potential conflict in terms of the law of the sea, including
maritime delimitation and regulating navigation as the ice melts.103
5. Outer Space104
There is no reason for believing that international law is spatially
restricted. It may not be required to boldly go in advance of human
interaction—but it is applicable to international exchanges and relations
wherever they may occur. New arenas of human activity create problems
and the law may have to adapt very quickly to cope with them, as it did in
the case of exploitation of the continental shelf after 1945 (see
chapter 11). The General Assembly has proclaimed that ‘[i]nternational
law, including the Charter of the United Nations, applies to outer space
and celestial bodies’.105 The analogy most applicable is that of the high
seas, a res communis, but such a category is not a source of precise
rules.
Although much remains to be done, particularly in relation to controlling
military uses of space, a solid area of agreement on some basic rules
has been achieved since space exploration began in 1957 with the
launch of Sputnik 1 by the Soviet Union. The basis for agreement has
been an early acceptance of the principle that outer space and
References
(p. 348) celestial bodies are not susceptible to appropriation by
states.106 Evidence of generally accepted principles is provided by the
General Assembly Resolution of 13 December 1963,107 adopted
unanimously, which contains ‘a declaration of legal principles’ governing
activities of states in the exploration and use of outer space.108
Five multilateral treaties on outer space have been concluded since the
1963 resolution:
(1) Outer Space Treaty (1967);
(2) Agreement on the Rescue of Astronauts, the Return of
Astronauts and the Return of Objects Launched into Outer Space
(1968);109
(3) Convention on International Liability for Damage Caused by
Space Objects (1972);110
(4) Convention on Registration of Objects Launched into Outer
Space (1974);111and
(5) Agreement Governing the Activities of States on the Moon and
Other Celestial Bodies (1979).112
The regime created by the Outer Space Treaty, adopted as a sequel to
the 1963 resolution, is not dissimilar to that of the Antarctic Treaty of
1959, with the important difference that there are no claimants to
sovereignty in outer space. Article 1 provides that exploration and use of
outer space ‘shall be carried out for the benefit and in the interests of all
countries…and shall be the province of all mankind’; and further, outer
space (including the moon and other celestial bodies) ‘shall be free for
exploration and use by all states without discrimination of any kind, on a
basis of equality and in accordance with international law, and there shall
be free access to all areas of celestial bodies’. Freedom of scientific
investigation is established. Article 2 provides that outer space ‘is not
subject to national appropriation by claim of sovereignty, by means of use
or occupation, or any other means’.
There is no provision on the precise boundary between outer space and
airspace, that is, between the regime of res communis and the
sovereignty of states over national territory. Until there is agreement on
the legality of certain types of activity on the fringes of national airspace,
states will tend to reserve their positions on a boundary line beyond
which the application of sanctions against unlawful activities may be
References
(p. 349) problematic.113 The lowest limit above the earth sufficient to
permit free orbit of spacecraft would make a sensible criterion: this limit
would be of the order of 100 miles, the lowest technically desirable
altitude of orbit.114 There may be a customary rule that satellites in orbit
cannot be interfered with unless interference is justified in terms of the
law concerning individual or collective self-defence.
The general regime is, like that of the high seas, based upon free use
and a prohibition of claims to sovereignty by individual states. However, if
and when the moon and other bodies are the objects of regular human
activity, bases will be set up which may create some sort of possessory
title. At any rate the existing rules need development to cope with the
practical problems of peaceful but competing uses and matters of
jurisdiction. Article 8 of the Outer Space Treaty provides that ‘a State
Party to the Treaty on whose registry an object launched into outer space
is carried shall retain jurisdiction and control over such object, and over
any personnel thereof, while in outer space or on a celestial body’. The
UN has maintained registers of launchings, first in accordance with a
1961 General Assembly resolution,115 then under the Registration
Convention of 1974. Article 6 of the Outer Space Treaty provides that
states parties shall bear responsibility for national activities in space,
whether carried on by governmental or by non-governmental entities.
Article 7 provides that states parties that launch objects into outer space,
and states parties from whose territory or facility objects are launched,
are strictly liable for damage caused by such objects to other states
parties or their nationals. Article 9 of the Outer Space Treaty lays down
standards of conduct for states engaged in exploration and use of outer
space. Thus activities shall be conducted ‘with due regard to the
corresponding interests of all other States Parties to the Treaty’ and study
and exploration shall be carried out so as to avoid harmful contamination
of outer space and celestial bodies and also ‘adverse changes in the
environment of the Earth resulting from the introduction of extraterrestrial
matter’.
Article 4 of the Outer Space Treaty creates a regime of
demilitarization.116 But the desire to maintain outer space for peaceful
uses has led to growing concern that the regime is inadequate to prevent
the ‘weaponization’ of outer space, through the placement in orbit of
devices with destructive capacity.117 In 2008 Russia and China presented
to the Conference a draft treaty on the prevention of the placement of
weapons in outer space and of the threat or use of force against outer
space objects.118 The draft
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(p. 350) has not yet been adopted, not least because of US
opposition.119 The General Assembly has observed that the Conference
on Disarmament has prime responsibility for negotiating a multilateral
treaty on preventing an arms race.120
An important feature of the use of outer space, as opposed to its
exploration, has been the employment of satellites in orbit to develop
telecommunications and systems of broadcasting. The major
developments so far have been based upon the cooperative
management of such activities by means of international organizations.
The principal organization is INTELSAT, first established as a consortium
of interests in 1964, but placed on a permanent basis in 1973. The
definitive arrangements consist of an interstate agreement and an
Operating Agreement,121 to which both governments and designated
entities, public or private, may be parties. INTELSAT was privatized in
2005.122
In addition there are regional systems and a global specialized network,
International Maritime Satellite Organization (INMARSAT).123 Problems
created by these developments include the conservation of the radio
frequency spectrum and the powers of the International
Telecommunications Union (ITU) and UNESCO to take action in the
matter, and also the legal responsibility of international organizations for
space activities. Article 6 of the Outer Space Treaty provides that
‘responsibility for compliance with this Treaty shall be borne both by the
international organization [which carries on activities in outer space] and
by the States Parties to the Treaty participating in such
organization.’124 The collision of a dead Russian satellite and an active
US satellite in 2009 has highlighted the need for improved management
of space debris and traffic.125
Activities in outer space necessarily involve the type of problem met with
in the context of enjoyment of the freedoms of the high seas. Certain
activities are considered in certain quarters either to infringe the principle
of non-appropriation or to involve breaches of other principles of general
international law. The first category is exemplified by the phenomenon of
geostationary (or synchronous) satellites, which remain fixed above a
given location on the earth’s surface. Eight equatorial states have
claimed that the individual segments of the unique (and therefore finite)
geostationary orbit
References
(p. 351) are subject to a regime of national sovereignty.126 Such claims
are difficult to reconcile with Articles 1 and 2 of the Outer Space Treaty.
In any case there is a fine line to be drawn between excessive use of the
orbit and appropriation. Space satellites can also be used for the
collection of data relating to the earth’s surface and also subsurface
conditions, that is, remote sensing. The legality of remote sensing is to
some extent problematic.127
The General Assembly continues to promote international co-operation in
the peaceful uses of outer space,128as well as transparency and
129
confidence-building measures in outer space activities.129 It has
designated 12 April as the annual International Day of Human Space
Flight to commemorate the first human space flight by Soviet Yuri
Gagarin in 1961.130
References
Footnotes:
1
Baslar, The Concept of the Common Heritage of Mankind in
International Law (1998) ch 3; Wolfrum, ‘Common Heritage of Mankind’
(2009) MPEPIL. The concept has been explored in the context of the
deep seabed: Brown, Sea-Bed Energy and Minerals (2001); Antarctica:
Bastmeijer, The Antarctic Environmental Protocol and its Domestic Legal
Implementation (2003); and the moon: Tronchetti, The Exploitation of
Natural Resources of the Moon and Other Celestial Bodies (2009).
2
E.g. Declaration on the Establishment of a New International Economic
Order, GA Res 3201(S-VI), 1 May 1974; Agarwala, The New International
Economic Order(1983); Ghosh (ed), New International Economic
Order (1984).
3
Stockholm Conference, Declaration on the Human Environment, 16
June 1972, 11 ILM 1416; Yamin & Depledge, The International Climate
Change Regime (2004); Voigt, Sustainable Development as a Principle of
International Law (2009) 57–87; Faure & Peeters (eds), Climate Change
Liability (2011).
4
Generally: van Leeuwen (ed), Future of the International Nuclear NonProliferation Regime (1995); Shaker (2006) 321 Hague Recueil 9; Falk &
Krieger (eds), At the Nuclear Precipice (2008); Stoiber et al, Handbook
on Nuclear Law (2010); International School of Nuclear Law (ISNL)
(ed), International Nuclear Law (2010); Joyner, Interpreting the Nuclear
Non-Proliferation Treaty (2011).
5
Statute of the International Atomic Energy Agency, 26 October 1956,
276 UNTS 3. See Jankowitsch-Prevor, in ISNL (2010) 13; Rockwood, in
ISNL (2010) 243.
6
6
Smith & Beresford, Chernobyl (2005).
7
20 September 1994, 1963 UNTS 293.
8
5 September 1997, 2153 UNTS 303.
9
The UN System-Wide Study on the Implications of the Accident at the
Fukushima Daiichi Nuclear Power Plant, SG/HLM/2011/1, 16 August
2011, addresses numerous safety issues, including the IAEA’s role and
the adequacy of nuclear disaster preparedness and response
frameworks.
10
25 March 1957, 298 UNTS 167. See Kilb, in ISNL (2010) 43.
11
14 December 1960, 888 UNTS 179. See Wolfe, in Mahon & McBride
(eds), The OECD and Transnational Governance (2008) 25. On the
Nuclear Energy Agency: Shaw, Europe’s Nuclear Power
Experiment (1983); Schwarz, in ISNL (2010) 31.
12
Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996 p
226, 266. The Court was divided on whether or not the use of nuclear
weapons might be lawful in self-defence against a threat to the life of the
nation itself. Further: Boisson de Chazournes & Sands
(eds), International Law, the International Court of Justice and Nuclear
Weapons (1999).
13
1 July 1968, 729 UNTS 168. See Moxley, Burroughs & Granoff (2011)
34 Fordham ILJ 595; Joyner (2011).
14
5 August 1963, 480 UNTS 43.
15
GA Res 50/245, 10 September 1995.
16
See the revised Model Nuclear Weapons Convention submitted by
Costa Rica and Malaysia in 2007: A/62/605, 18 January 2008.
Further: Weiss (2011) 34 Fordham ILJ 776.
17
See SC Res 1718, 14 October 2006; SC Res 1874, 12 June 2009.
Further: Falk & Krieger (2008); Joyner (2011).
18
Bâli, in Falk & Krieger (2008) 97; Ronen, The Iran Nuclear
Issue (2011).
19
USA–India, Agreement for Cooperation concerning Peaceful Uses of
Nuclear Energy, 10 October
2008, www.state.gov/documents/organization/122068.pdf; India–IAEA,
Agreement for the Application of Safeguards to Civilian Nuclear Facilities,
29 May 2009, INFCIRC/754. See Ranganathan (2011) 51 Indian JIL 146.
20
Nuclear Tests (Australia v France), ICJ Reports 1974 p 253; Nuclear
Tests (New Zealand v France), ICJ Reports 1974 p 457; Request for an
Examination of the Situation in Acccordance with Paragraph 63 of the
Court’s Judgment of 20 December 1947 in the Nuclear Tests (New
Zealand v France) Case, ICJ Report 1995 p 388.
21
Mackby (2011) 34 Fordham JIL 697.
22
The latest of these is the New START (Strategic Arms Reduction
Treaty): Measures for the Further Reduction and Limitation of Strategic
Offensive Arms, 8 April 2010, Senate Treaty Doc 111–15.
23
17 December 1994, 2080 UNTS 95. See Doré & de Bauw, The
Energy Charter Treaty (1995); Wälde, ‘Sustainable Development’ and the
1994Energy Charter Treaty (1997); Ostry, in Kirton, Larionova & Savona
(eds), Making Global Economic Governance Effective (2010) 131.
24
17 December 1994, 2081 UNTS 3.
25
Concluding Document of the Hague Conference on the European
Energy Charter, 17 December 1991, text reproduced in Wälde &
Ndi, International Oil and Gas Investment (1994) 367–73.
26
For the putative continuing effects of provisional application: Yukos
Universal Limited v Russia, 30 November 2009, at www.italaw.com.
27
North Seas Countries’ Offshore Grid Initiative, Memorandum of
Understanding, 3 December 2010, available
at www.ec.europa.eu/energy/renewables/grid/doc/north_sea_countries_offshore_grid
28
Lei, in de Jong, Snelder & Ishikawa (eds), Transborder Governance of
Forests, Rivers, and Seas (2010) 163.
29
Atchatavivan, in Moomaw & Susskind (eds), 15 Papers on
International Environmental Negotiation (2006); Ansari, Energy Law in
Malaysia (2011) 78–80.
30
3 March 1980, 1456 UNTS 101. Cf Jankowitsch-Prevor, in ISNL
(2010) 187.
31
31
Generally: Fuentes (1996) 67 BY 337; Fuentes (1998)
69 BY 119; Upadhye (2000) 8 Cardozo JICL 61; Malla (2008) 77 Nordic
JIL 461; McIntyre, Environmental Protection of International
Watercourses under International Law (2007); McCaffrey, The Law of
International Water courses (2nd edn, 2007); Dinar, International Water
Treaties (2008); Islam, The Law of Non-Navigational Uses of
International Watercourses (2010).
32
On the problems of river boundaries: E Lauterpacht (1960)
9 ICLQ 208, 216–22; Biger (1988) 17 Geo J 341; Caflisch (1989) 219
Hague Recueil 9; Biger (1989) 25 MES 249; McCaffrey (2nd edn, 2007)
70–2.
33
Treaty of Limits, 15 April 1858, 118 CTS 439, Art VI.
34
Police patrol vessels were excluded, as were vessels resupplying
Costa Rican border posts: Navigational and Related Rights (Costa Rica v
Nicaragua) ICJ Reports 2009 p 213, 232–48.
35
Ibid, 248–63.
36
Diversion of Water from the Meuse(1937) PCIJ Ser A/B No
70; Gabčíkovo-NagymarosProject(Hungary/ Slovakia), ICJ Reports 1997
p 7; Dispute regarding Navigational and Related Rights (Costa Rica v
Nicaragua), ICJ Reports 2009 p 213; Pulp Mills on the River Uruguay
(Argentina v Uruguay), ICJ Reports 2010 p 14.
37
Salman (2007) 23 WRD 625.
38
(1957) 24 ILR 101. Also: Duléry (1958) 62 RGDIP 469; Griffin (1959)
53 AJIL 50. For the Convention made subsequently by the parties: (1958)
4 AFDI 692, 708–11. Further: Treaty Relating to Co-operative
Development of the Water Resources of the Columbia River Basin
(Canada–USA), 17 January 1961, 542 UNTS 245; Helsinki Convention
on the Protection and Use of Transboundary Watercourses and
International Lakes, 17 March 1992, 1936 UNTS 269.
39
40
Gabčíkovo-Nagymaros, ICJ Reports 1997 p 7, 54.
Faber (1903) 10 RIAA 438, 439–41. Also: Baxter & Triska, The Law of
International Waterways (1964) 133; Uprety, The Transit Regime for
Landlocked States (2006) 37–44. Cf Caflisch (1989) 219
Hague Recueil 9, 104–32 (suggesting that a regional custom of free
navigation has developed in Europe, and possibly in South America);
McCaffrey (2nd edn, 2007) ch 6.
41
20 April 1921, 7 LNTS 35.
42
E.g. Treaty Relating to Boundary Waters between the US and Canada
(US–Great Britain), 11 January 1909, 4 AJIL Supp 239.
43
Convention Regarding the Regime of Navigation on the Danube, 18
August 1948, 33 UNTS 181; see Kunz (1949) 43 AJIL 104.
44
Territorial Jurisdiction of the International Commission of the River
Oder (1929) PCIJ Ser A No 23, 29; Jurisdiction of the European
Commission of the Danube (1927) PCIJ Ser B No 14, 61, 63–4.
45
(1929) PCIJ Ser A No 23, 28; the Court referred also to the interest of
non-riparian states in navigation on the waterways in question.
46
ILA, Report of the 52nd Conference (1966) 477–533. On the status of
the Rules: Salman (2007) 23 WRD 625, 630.
47
ILA, Report of the 71st Conference (2004) 334–421; Salman (2007)
23 WRD 625, 635–8.
48
GA Res 51/229, 21 May 1997 (not yet in force).
49
ICJ Reports 1997 p 7, 55–7.
50
Convention Respecting the Free Navigation of the Suez Canal, 29
October 1888, 171 CTS 241. See Matthews (1967) 21 Int Org 81.
51
UK–Egypt, Agreement regarding the Suez Canal Base, 19 October
1954, 221 UNTS 227; further: Selak (1955) 49 AJIL 487.
52
Suez Canal Company Nationalisation Law, Decree Law No 285, 1956;
for the heads of agreement as to compensation of 29 April 1958,
see (1960) 54 AJIL 493.
53
(1957) 51 AJIL 672.
54
265 UNTS 300. See E Lauterpacht, The Suez Canal
Settlement (1960) 35; Mensbrugghe (1964) 397.
55
56
18 November 1903, 33 Stat 2234; TS 431.
56
18 November 1901, 32 Stat 1903; TS 401.
57
Panama Canal Treaty, 7 September 1977, 16 ILM 1022. The Protocol
to the Treaty Concerning the Permanent Neutrality and Operation of the
Panama Canal (ibid, 1042) is open to accession by all states.
58
Böhmer (1995) 38 GYIL 325; Lagoni, ‘Kiel Canal’ (2009) MPEPIL.
59
(1923) PCIJ Ser A No 1, 28.
60
Baxter & Triska (1964) 182, 308, 343.
61
Wright, Bartolomeo Minio: Venetian Administration in 15th-Century
Nauplion (2000) ch 3.
62
Sahlins, Boundaries (1989) 98–102.
63
E.g. the Joint Rivers Commission (Bangladesh/India); Joint
Commission on Protection and Sustainable Use of Transboundary
Waters (Estonia/Russia); Chu and Talas Rivers Commission
(Kazakhstan/ Kyrgyzstan).
64
Boundary Waters Treaty, 11 January 1909, 36 Stat 2448.
See Lemarquand (1993) 33 NRJ 59; O’Sullivan (2001) 9 Boundary &
Security Bulletin 86; Tarlock (2008) 54 Wayne LR 1671.
65
Treaty Relating to the Utilization of Waters of Colorado and Tijuana
Rivers and of the Rio Grande, 3 February 1944, 59 Stat 1219; Mumme
(2001) 9 Boundary & Security Bulletin 117; Handl, ‘American-Mexican
Boundary Disputes and Cooperation’ (2010) MPEPIL.
66
Established by the UN Secretary-General to facilitate implementation
of the ruling of the International Court in Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v Nigeria; Equatorial Guinea
intervening), ICJ Reports 2002 p 303; further: Bekker (2003) 97 AJIL 387,
398; Udogu (2008) 7 Af & Asian S 77, 89–96.
67
26 February 1975, 1295 UNTS 339.
68
Pulp Mills, ICJ Reports 2010 p 14, 56–7, 66–7.
69
Generally: Fox (ed), Joint Development of Offshore Oil and
Gas (1990); Churchill & Lowe, The Law of the Sea (3rd edn, 1999) 198–
202, 294–6; Kim, Maritime Delimitation and Interim Arrangements in
North East Asia (2004); Gao (2008) 23 IJMCL 55.
70
70
Churchill, in Fox (1990) 55–8.
71
10 December 1982, 1833 UNTS 3. Generally: Nordquist, Rosenne &
Nandan, 2 United Nations Convention on the Law of the Sea,
1982 (1993) 796–816, 948–85.
72
For a model agreement: Fox (1990) 3–23.
73
Ong (1999) 93 AJIL 771.
74
Also: Agreement on Straddling Fish Stocks and Highly Migratory Fish
Stocks, 4 December 1995, 2167 UNTS 3.
75
Treaty between the Federal Republic of Nigeria and the Democratic
Republic of São Tomé and Príncipe on the Joint Development of
Petroleum and other Resources, in respect of Areas of the Exclusive
Economic Zone of the Two States, 21 February 2001. See Tanga
Biang, The Joint Development Zone between Nigeria and Sao Tome and
Principe (2010).
76
11 December 1989, 1654 UNTS 105; see Burmester, in Fox (1990)
128; Marques Antunes (2003) 13 CEPMLP,
at www.dundee.ac.uk/cepmlp/journal/html/Vol13/vol13-13.html.
77
Kim (2004).
78
Generally: Vasciannie, Land-Locked and Geographically
Disadvantaged States in the International Law of the Sea (1990); Uprety
(2006); Mishra & Singh (2008) 64 India Quarterly 55.
79
Right of Passage over Indian Territory (Portugal v India), ICJ Reports
1960 p 6, esp 66 (Judge Wellington Koo), 79–80 (Judge Armand-Ugon).
80
Uprety (2006) 27–44.
81
29 April 1958, 450 UNTS 11.
82
8 July 1965, 597 UNTS 3.
83
Nordquist, Rosenne & Nandan, 3 Commentary (1995) Part X.
84
See www.unohrlls.org/.
85
GA Res 56/180, 21 December 2001.
86
A/CONF.202/3, 29 August 2003, §51.
87
87
Generally: Verhoeven, Sands & Bruce (eds), The Antarctic
Environment and International Law (1992);
Watts, International Law and the Antarctic Treaty System (1993);
Francioni & Scovazzi (eds), International Law for Antarctica (1996);
Rothwell, The Polar Regions and the Development of International
Law (1996); Vidas, Protectingthe Polar Marine Environment (2000);
Koivurova, Environmental Impact Assessment in the Arctic (2002); Triggs
& Riddell (eds), Antarctica (2007); Byers, ‘Arctic Region’ (2010) MPEPIL;
Loukacheva (ed), Polar Law Textbook (2010); Crawford, in French, Saul
& White (eds), International Law and Dispute Settlement (2010) 2;
Joyner, in Berkman et al (eds), Science Diplomacy (2011) 97.
88
1 December 1959, 402 UNTS 71, Arts I–IV.
89
On sovereignty and jurisdiction in Antarctica: Scott (2009) 20 Ybk
IEL 3.
90
On the question whether the Antarctic regime is an objective regime:
Wolfrum, The Convention on the Regulation of Antarctic Mineral
Resource Activities (1991) 18–20.
91
The nationality principle is applied to observers and scientific
personnel exchanged under the Treaty: Art VIII(1).
92
1 June 1972, 1080 UNTS 175.
93
20 May 1980, 1329 UNTS 47. See Brown, in Triggs & Riddell (2007)
85; Potts, in Loukacheva (2010) 65; Rose & Milligan (2009) 20 Ybk
IEL 41.
94
Madrid, 4 October 1991, 30 ILM 1461. Annex II of the Protocol
replaced the Agreed Measures for the Protection of Flora and Fauna
(1964). See generally Joyner (1987) 81 AJIL 888; Blay (1992)
86 AJIL 377; Joyner, in Vidas (2000) 104; Bastmeijer (2003). The Madrid
Protocol effectively replaces the Convention on the Regulation of
Antarctic Mineral Resource Activities, 2 June 1988, 27 ILM 868.
95
Joyner (2011). Further: Rogan-Finnemore, in Leane & von Tigerstrom
(eds), International Law Issues in the South Pacific (2005) 199; Triggs &
Riddell (2007); Hemmings & Stephens (2009) 20 Public LR 9.
96
97
Vidas, in Vidas (2000) 78.
97
Pharand, The Law of the Sea in the Arctic (1973); Byers, ‘Arctic
Region’ (2010) MPEPIL.
98
E.g. International Convention for the Prevention of Pollution from
Ships, 2 November 1973, 1340 UNTS 184, modified by Protocol of 17
February 1978, 1340 UNTS 61; Agreement on Conservation of Polar
Bears, 15 November 1973, 13 ILM 13; Espoo Convention on
Environmental Impact Assessment in a Transboundary Context, 25
February 1991, 1989 UNTS 309; Stockholm Convention on Persistent
Organic Pollutants, 22 May 2001, 2256 UNTS 119.
99
Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, US.
100
Vukas, in Vidas (2000) 34; Sands, Principles of International
Environmental Law (2nd edn, 2003) 728–30.
101
For comparison: Loukacheva (2010).
102
Nowlan, Arctic Legal Regime for Environmental Protection (2001);
Koivurova (2002); Potts, Tavis & Clive Schofield (2008) 23 IJMCL 151;
Potts, in Loukacheva (2010) 65; Bankes, in Loukacheva (2010)
101; Smith (2011) 41 G Wash ILR 651.
103
Generally: Joyner, in Triggs & Riddell (2007) 61; Byers, ‘Arctic
Region’ (2010) MPEPIL; Smith (2011).
104
Generally: Lachs, Law of Outer Space (1972); Christol, The Modern
International Law of Outer Space (1982); Reynolds (1992) 25 Vand
JTL 225; Jasentuliyana (ed), Space Law (1992); Lafferranderie &
Crowther (eds), Outlook on Space Law Over the Next 30 Years (1997);
Jasentuliyana, International Space Law and the United Nations (1999);
Sands (2nd edn, 2003) 382–5; Hermida, Legal Basis for a National
Space Legislation (2004); Wolter, Common Security in Outer Space and
International Law (2006); Lyall & Larsen, Space Law (2009);
Jakhu, International Space Law (2011).
105
GA Res 1721(XVI), 20 December 1961. Also: Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and other Celestial Bodies, 27 January 1967,
610 UNTS 205, Art 3.
106
106
Although existing principles on acquisition of territory would have
been applicable, as they are to uninhabited polar regions.
107
GA Res 1962(XVII), 13 December 1963 (Declaration of Legal
Principles Governing the Activities of States in the Exploration and Uses
of Outer Space). On the relations of the Outer Space Treaty and the
resolution: Fawcett, International Law and the Uses of Outer
Space (1968) 4–14.
108
Other statements of principles on outer space adopted by the GA are
compiled in ST/SPACE/11, 2002.
109
22 April 1968, 672 UNTS.
110
29 March 1972; 961 UNTS 187.
111
GA Res 3235(XXIX), 12 November 1974, 1023 UNTS 15.
112
5 December 1979, 1363 UNTS 3.
113
Fawcett (1968) 23–4; Goedhuis (1982) 174 Hague Recueil 367–
408; Marston (1984) 55 BY 405, 564–6.
114
Fawcett (1968) 23–4. In Article 1 of the draft treaty presented by
Russia and China to the Conference on Disarmament in 2008, outer
space is defined as ‘space beyond the elevation of approximately
100 km above ocean level of the Earth’ (emphasis added; CD/1839, 29
February 2008).
115
GA Res 1721B(XVI), 20 December 1961.
116
Also Art 3. Earlier developments: Partial Test Ban Treaty; GA Res
1884(XVIII), 17 November 1963. Further: Fawcett (1968) 29–42; Bridge
(1979–80) 13 Akron LR 649; Wolter (2006).
117
E.g. 49th session of the Legal Subcommittee on the Peaceful Uses of
Outer Space (‘Legal Subcommittee’), A/AC.105/942, 16 April 2010, 6, 8;
53rd session of the Committee on the Peaceful Uses of Outer Space,
A/65/20, 18 June 2010, 8. See further Jasentuliyana (1999) 67–129;
Wolter (2006).
118
119
CD/1839 29, February 2008.
E.g. CD/1680, 10 July 2002. Some argue that an international code
of conduct for outer space activities would be a more feasible alternative,
which might cover other matters of concern including space traffic
management and the problem of space debris: see revised draft code
approved by the Council of the European Union, 14455/10, 11 October
2010; Krepon & Black, in Pelton & Jakhu (eds), Space Safety
Regulations and Standards (2010) 239.
120
E.g. GA Res 62/20, 5 December 2007; GA Res 65/44, 8 December
2010.
121
Operating Agreement relating to the International
Telecommunications Satellite Organization (INTELSAT), 20 August 1971,
1220 UNTS 149; see Bender, Launching and Operating Satellites (1998)
120.
122
Katkin (2005) 38 Vand JTL 1323.
123
3 September 1976, 15 ILM 219, 1051; amendments: 27 ILM 691.
124
Also Art 13.
125
Jakhu (2008–9) 3 Ybk Space P 254.
126
Bogotá Declaration, 1976, Jasentuliyana & Lee (eds), 2 Manual on
Space Law (1979) 383–7; Digest of US Practice (1979) 1187–8.
127
Draft Principles adopted by the Legal Sub-Committee, 13 June 1986,
25 ILM 1334. Further: Lyall & Larsen (2009) 411–42.
128
E.g. GA Res 65/97, 10 December 2010.
129
E.g. GA Res 65/68, 8 December 2010.
130
GA Res 65/271, 7 April 2011.
(p. 352) 15 Legal Aspects of the Protection of
the Environment
1. The Role of International Law in Addressing
Environmental Problems
Increased appreciation of the many risks to the earth’s environment and
the potentially irreversible damage which may be caused by human
activity has resulted in a conscious effort by governments acting
collectively, by international organizations, and by non-governmental
organizations, to enhance legal protection of the environ-ment.1 The
resulting agenda is extensive: it includes the depletion of the ozone layer,
problems of transboundary air pollution and anthropogenic climate
change, the risks created by reliance upon nuclear power, the protection
of the polar regions, the conservation of endangered species of flora and
fauna, the control of the disposal of ultrahazardous wastes, and a range
of procedural obligations from information exchange to environmental
assessment. The policy issues generated by such an agenda are oft en
difficult to resolve: inevitably the issues do not concern the ‘environment’
in isolation, but relate to economic and social priorities, systems of loss
distribution and issues of development. Reconciling the protection of the
environment with other issues such as these is sometimes referred to as
the goal of sustainable development.
(p. 353) (A) Environmental Issues under General
International Law
Environmental concerns are reflected in many areas of international law:
relevant categories include the law of the sea, the legal regime of
Antarctica, and the non-navigational uses of international watercourses.
Simultaneously, it is evident that general international law does not
provide the focused problem-solving which results from carefully
prepared standard-setting treaties linked with domestic and international
support systems and funding. The development of specialized
environmental regimes by treaty serves to address this deficiency.
Nonetheless, the legal underpinnings of the protection of the environment
continue to be institutions of general international law. This is apparent
from the literature, which typically invokes the principles of state
responsibility of the territorial sovereign for sources of danger to other
states created or tolerated within its territory, and cites Trail Smelter2 and
(less appropriately) Corfu Channel.3 It comes as no surprise that cases
concerning environmental issues have also—and centrally—involved
issues of general international law. Nuclear Tests concerned issues of
admissibility and remedial law, as well as the status of unilateral
promises.4Certain Phosphate Lands in Nauru related to issues of
admissibility, the regime of a former UN trust territory, and state
responsibility.5 The advisory opinion of the ITLOS Seabed Disputes
Chamber, on responsibility and liability for international seabed mining,
addressed important questions of treaty interpretation.6
In practice, specific transboundary problems will have a background in
treaty relations and other dealings between states. GabčíkovoNagymaros, relating to a joint hydroelectric project on the Danube, was
concerned with the law of treaties and related points of state
responsibility (issues of justification for alleged breaches of treaty
obligations).7 Pulp Mills dealt with the law of treaties, international
organizations, and international watercourses.8 Environmental concerns
may arise in connection with law of the sea issues,9 and international
trade disputes brought before the WTO Dispute Settlement
Body,10 among others.
References
(p. 354) (B) Deficiencies in the Adversarial System of
Responsibility
The key problem with focusing on responsibility as a means of ensuring
environmental protection is that it addresses issues after damage has
already occurred, instead of focusing on the need for prevention of
damage in the first place. This deficiency is reflected in the growing
support for the principle of preventive action in the area of environmental
protection.
A particular difficulty is the selection and deployment of an appropriate
basis of claim. Environmental impacts are often, in physical terms,
incremental and may involve complex and diffuse causal mechanisms.
The requirement of material or significant damage as a necessary
condition of claim bears an uneasy relation to the scientific proof of a
certain threshold of damage caused by an overall rise in radiation or
other forms of pollution, and problems of multiple causation oft en arise.
In Nuclear Tests, the applicants employed the international law
equivalent of trespass to deal with this problem: the deposit of radioactive
fall-out was classified as a violation of their territorial
sovereignty.11 Likewise, the concept of ‘decisional sovereignty’ was used,
referring to their right to determine what acts should take place within its
territory. Implicit in these arguments was the proposition that little or no
material harm to the applicants or their nationals would be caused by
levels of fall-out which—over the distances involved—were rather less
than the natural background radiation. The Court in a somewhat
contrived manner avoided the problem, and French atmospheric testing
ceased.12
It has been said that the decision in Nuclear Tests ‘suggested that an
international tribunal cannot grant injunctions or prohibitory orders
restraining violations of international law’.13 This is unjustified, and
declarations are given by the Court which are injunctive in effect, as the
joint dissenting opinion pointed out.14
But international claims—whether before the Court or a tribunal—can
take many years to resolve, during which time the project in question—
whether dam,15 bridge,16 or
References
(p. 355) large-scale land reclamation project17—may have been
completed with little prospect of reversal. Requests for interim measures
of protection addressed to the International Court or other tribunals thus
have a crucial role.18
(C) The Rio Conference 1992 and the Development of
International Environmental Law
Evidence of international concern for environmental protection may be
found in earlier international agreements19 such as the Convention
relative to the Preservation of Fauna and Flora in their Natural Habitat
(1936),20 the Convention between the United States of America and
Mexico for the protection of migratory birds and game mam mals
(1937),21 and the International Agreement for the Regulation of Whaling
(1938).22 But greater momentum and political impact was afforded by
such organizations as World Wildlife Fund (founded 1961) and
Greenpeace (founded 1971). The earlier sectoral approach was to a
degree subsumed in a broader political and legal agenda culminating in
the Rio Conference in 1992. An important step was the Brundtland
Report, produced in 1987 by the World Commission on Environment and
Development to address the challenge of finding multilateral paths toward
sustainable development.23 It was the first major report to focus on global
sustainability, linking environmental and developmental issues; further, it
proposed solutions based on international cooperation, and institutional
and legal change.
In 1992, more than 100 governments met in Rio de Janeiro for the UN
Conference on Environment and Development. The Earth Summit
produced Agenda 21, a comprehensive plan of action calling for the
‘further development of international law on sustainable development,
giving special attention to the delicate balance between environmental
and developmental concerns.’24 It also produced the Rio Declaration on
Environment and Development,25 containing 27 principles linked to the
concept of sustainable development, and the non-binding Authoritative
Statement of Principles for a
References
(p. 356) Global Consensus on the Management, Conservation and
Sustainable Development of All Types of Forests (the Forest
Principles).26 In addition, the Convention on Biological Diversity
(Biodiversity Convention)27and the Framework Convention on Climate
Change (UNFCCC)28 were opened for signature.
2. Emergent Legal Principles
A number of candidate legal principles have emerged from this ferment of
activity: the more important of these may be briefly reviewed.
(A) The Preventive Principle29
As the International Court has observed, the ‘often irreversible’ character
of environmental damage, and the limitations of reparation after the fact,
mean that prevention is of the utmost importance.30 The preventive
principle requires action to be taken at an early stage. It is supported
through a wide range of domestic and international measures directed at
prohibiting harmful activities and enforcing compliance with standards.
In 2001 the ILC adopted the Draft Articles on the Prevention of
Transboundary Harm from Hazardous Activities.31 This was the result of
dividing its work on transboundary harm into two parts,32 the other
pertaining to liability for transboundary harm.33 The Draft Articles dealing
with prevention ‘apply to activities not prohibited by international law
which involve a risk of causing significant transboundary harm through
their physical consequences’. Limiting activities to those ‘not prohibited
by international law’ was ostensibly intended to separate issues of
international liability from the topic of responsibility.34
The Draft Articles draw on other established principles of international
environmental law. For example, the requirement that a state ‘shall take
all appropriate measures to prevent significant transboundary harm or at
any event to minimize the risk thereof ’ invokes the precautionary
principle, though the formulation used has
References
(p. 357) been criticized.35 Draft Article 7 includes environmental impact
as a tool to assess the likelihood of transboundary harm. In requiring cooperation between states to prevent transboundary harm the Draft
Articles also rely on the dynamics of international politics and supporting
structures of international law to implement the provisions of any
convention based upon them. Seeking to address circumstances which
formed the basis of disputes in cases such as Trail Smelter, the ILC also
sets out the ‘fundamental principle that the prior authorization of a state is
required for activities which involve a risk of causing significant
transboundary harm undertaken in its territory or otherwise under its
jurisdiction or control’.
Despite the uncertainty surrounding their future status, the Draft Articles
provide an authoritative statement on the scope of a state’s international
legal obligation to prevent a risk of transboundary harm.36
(B) The Precautionary Principle37
Probably the best known of the still evolving legal principles of
environmental protection is the precautionary principle. This has been
described as ‘an attempt to codify the concept of precaution in
law’38 where ‘precaution’ is defined as a strategy for addressing risk.39 It
concerns ‘the manner in which policy-makers, for the purposes of
protecting the environment, apply science, technology and
economics’.40 Although well known, it is difficult to define. Sands
observes that there is ‘no uniform understanding of the meaning of the
precautionary principle among states and other members of the
international community’.41 It has been noted that the consequences of
applying a precautionary approach differ widely, depending on the
context.42
On the other hand, from the 1970s a precautionary approach has been
used in some national systems (e.g., Germany and the US),43 and it is
part of European law.44 Extending the logic of precaution to the
international level, the ‘precautionary approach’ receives clear support in
the Rio Declaration (Principle 15):
In order to protect the environment, the precautionary approach shall be widely applied
by states according to their capabilities. Where there are threats of serious or irreversible
References
(p. 358) damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental degradation.
Different permutations of the precautionary principle are found in
numerous multilateral instruments, such as the UNFCCC and the
Biodiversity Convention. The precautionary principle can be interpreted to
imply that precautionary regulation is justified when there is no clear
evidence about a particular risk scenario, when the risk itself is uncertain,
or until the risk is disproved.45 The precautionary approach was affirmed
as an obligation of sponsoring states in the advisory opinion of the ITLOS
Seabed Disputes Chamber.46
(C) The Concept of Sustainable Development47
Although emerging as a distinct field of scholarship, the existence of
sustainable development as a distinct legal concept, that is, one which
gives rise to or defines actionable rights, is controversial. Given the
breadth of the concept, which includes trade, investment, and social
concerns, it can be argued that sustainable development is better
understood as a collection, or collocation, of different legal categories,
and as a ‘general guideline’.48
The most commonly cited definition, from the Brundtland Report, is
‘development that meets the needs of the present without compromising
the ability of future generations to meet their own needs’.49 Development,
a process of change toward improving quality of life for human beings
and their communities, is said to be sustainable when it is achieved by
the integration of social, economic, and environmental considerations in a
way that provides for and protects the long-term well-being of
populations. The field of sustainable development law refers to the
emerging body of legal instruments, norms, and treaties directed at
implementing this balance, as well as to the distinctive procedural
elements (often based upon human rights law) underpinning them. The
objective of sustainable development is increasingly included in general
economic treaties and regional integration treaties.50
References
(p. 359) (D) The Polluter-Pays Principle
51
The polluter-pays principle51 is again not so much a rule as a ‘general
guideline’.52 Article 16 of the Rio Declaration expresses the idea in these
terms:
National authorities should endeavour to promote the internalisation of environmental
costs and the use of economic instruments, taking into account the approach that the
polluter should, in principle, bear the cost of pollution, with due regard to the public
interest and without distorting international trade and investment.
Birnie, Boyle, and Redgwell describe the principle as ‘an economic policy
for allocating the costs of pollution or environmental damage borne by
public authorities’ with ‘implications for the development of international
and national law on liability for damage’.53 It is clear from the language of
Article 16 of the Rio Declaration that the principle is essentially
programmatic and hortatory: ‘it is doubtful whether it has achieved the
status of a generally applicable rule of customary international
law…’.54 Its content is vague; it is unclear for example whether it entails
strict liability. If so, it goes beyond normal principles of state responsibility
for damage affecting the legal interest of another state.
(E) The Sic Utere Tuo Principle
The general obligation of states to ensure that activities within their
jurisdiction and control respect the environment of other states (and of
areas beyond national control) was affirmed by the International Court
in Legality of the Threat or Use of Nuclear Weapons.55
(F) The Obligation of Environmental Impact Assessment56
Environmental impact assessment is a technique for integrating
environmental considerations into decision-making processes.57 In
international law, the duty to undertake an environmental impact
assessment is expressed in Principle 17 of the Rio Declaration:
[E]nvironmental impact assessment, as a national instrument, shall be undertaken for
proposed activities that are likely to have a significant adverse impact on the
environment and are subject to a decision of a competent national authority.
References
58
(p. 360) EC Directive 85/337/EEC58 was the first international instrument
to adopt environmental impact assessment, although implicit recognition
can also be found in Principle 21 of the Stockholm Declaration of
1972.59 The most prominent international convention in the field is the
Espoo Convention on Environmental Impact Assessment in a
Transboundary Context of 1991,60 which ‘requires its parties to assess
the transboundary environmental effects of certain actions within their
jurisdiction and to notify and consult with potentially affected states about
those effects.’61 The latest periodic review of the Convention notes the
inconsistent levels of application and communication issues between
states.62 Nonetheless, the requirement to conduct environmental impact
assessments is an important element of preventing transboundary harm
from hazardous activities. This was recognized by the International Court
in Pulp Mills, where it was said that the practice of undertaking
environmental impact assessments
has gained so much acceptance among States that it may now be considered a
requirement under general international law to undertake an environmental impact
assessment where there is a risk that the proposed industrial activity may have a
significant adverse impact in a transboundary context, in particular, on a shared
resource.63
On the other hand, the Court held, the content of any such assessment is
a matter to be defined by the relevant national law.64 This ‘hybrid’
obligation raises problems, in particular, for the evaluation of
transboundary harm.
3. Development of Multilateral Standard-Setting
Conventions
A significant development in international law, and one that characterizes
international environmental law, is the evolution of multilateral standardsetting conventions. These conventions, draft ed and agreed in response
to international collective action problems pertaining to the environment,
establish international environmental regimes which provide both the
structure and resources for addressing the issue at their core. Both the
development and the effectiveness of international environmental
regimes have been the subject of interdisciplinary scholarship.65
References
(p. 361) (A) Traffic in Endangered Species
The Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) was agreed in 1973 and now has 175
parties.66 An earlier meeting of the World Conservation Union (IUCN) in
Nairobi (1963) was a catalyst for CITES;67 IUCN continues to support
CITES through scientific advice and advocacy. The CITES Secretariat is
located in Geneva and is administered by the UN Environment Program
(UNEP). CITES seeks to regulate trade in species threatened with
extinction by providing that the trade in such species ‘must be subject to
particularly strict regulation in order not to endanger further their survival
and must only be authorized in exceptional circumstances.’68 Parties are
obliged to penalize trade in listed species and confiscate specimens
when found; they are also required to make periodic reports to the
Secretariat regarding their implementation of the Convention. CITES is
an example of an environmental convention which targets the economic
activity (trade) supporting the environmental harm (loss of species) as a
means to address the problem; however, it does not directly address the
demand-side drivers (such as consumer preference) or the supply-side
drivers (such as poverty) of the trade in endangered species.69
(B) Protection of the Ozone Layer
The Vienna Convention on the Protection of the Ozone Layer of 1985 is
largely a framework requiring further action by the parties.70 However, it
did serve as an important step towards further control measures, notably
the Montreal Protocol of 1987 which established substantive controls on
substances linked to ozone depletion (Article 2), a mechanism for
reporting progress (Article 7), and a multilateral fund ‘for the purposes of
providing financial and technical co-operation, including the transfer of
technologies’ to support implementation (Article 10).71 The Montreal
Protocol incorporated a significant amount of the law concerning
transboundary pollution (procedural and substantive) which attained
customary status prior to its negotiation.72 This regime has been
described as ‘dynamic and flexible’ in its operation,73 and the high
participation (191 parties) in combination with some evidence supporting
a reduction in ozone depletion suggests a measure of success.74
References
(p. 362) (C) Transboundary Movement of Hazardous
Wastes
The Basel Convention of 198975 was negotiated in response to concerns
that the transport of hazardous wastes between countries could pose an
environmental hazard to both transit and recipient countries. It does not
ban the transport of hazardous wastes, but places limits on their
movement: it is permissible to export waste if the exporting country does
not have sufficient disposal capacity or disposal sites capable of disposal
in an environmentally sound manner, and if the wastes are required as
raw material for recycling or recovery industries in the importing country.
In addition, the exporting state must obtain the consent of the importing
state and transit states before allowing a shipment of hazardous wastes.
There is an obligation on parties to reduce hazardous waste and manage
it in a manner consistent with environmental protection. Export of
hazardous waste to Antarctica is explicitly banned (Article 6). The Basel
Convention has been criticized for not adequately regulating the
production of hazardous waste within states and, by allowing its trade,
endorsing the export of an environmental problem from the developed to
the developing world.76 However, given the political realities underpinning
what can be an expensive problem for exporting countries and a costeffective solution offered by importers who develop an industry around
transboundary shipments of such waste, the progress made in regulating
some aspects of this issue through the Basel Convention could also be
seen as a step forward.
(D) Climate Change77
The Fourth Assessment Report of the Intergovernmental Panel on
Climate Change confirmed that the release of greenhouse gases into the
atmosphere constitutes a major anthropogenic contribution to climate
78
change.78The international climate change regime includes the UNFCCC
and its Kyoto Protocol,79 which is designed to facilitate climate protection
through market-based initiatives. The Kyoto Protocol established a
carbon market until 2012, with rules pertaining to emissions trading and
‘flexible mechanisms’ to be used by member states to help them meet
their emissions reduction targets. The concept of carbon trading is
controversial, and the nature of a successor
References
(p. 363) agreement to the Kyoto Protocol is the subject of heated debate.
The success of emissions trading as a strategy depends not only on
binding targets, but on robust reporting and a strong national and
international infrastructure to track, verify, and compel compliance,
features largely still lacking.80
(E) Protection of the Marine Environment81
Controlling marine pollution is an increasingly important matter of
environmental concern, which features in a large number of international
treaties and instruments. UNCLOS Article 192 provides generally that
states have the obligation to protect and preserve the marine
environment, and the rest of Part XII is dedicated to that objective, with
further relevant provisions found throughout.82 In addition to UNCLOS,
numerous regional agreements address aspects of the protection of the
marine environment, including the 1992 Convention for the Protection of
the Marine Environment of the North-East Atlantic (OSPAR
Convention),83 and the framework conventions developed under the
UNEP Regional Seas programme.84
Specific sources of marine pollution are also covered by separate
instruments. The early focus was on oil spills,85 but over time
international rules have developed to address pollution from a range of
sources including land-based activities, dumping at sea, other effects of
maritime transport, and seabed activities.86 Particularly prominent among
the specific instruments are MARPOL 73/78,87 regulating pollution from
vessels, and the London Convention regulating dumping of
waste.88 Instruments such as these have had some impact; however, the
biggest difficulties lie in effectively regulating pollution from land-based
activities, by far the largest source of marine pollution. Chapter 17 of
Agenda 21, the plan of action adopted at the Earth Summit in 1992,
establishes a programme on marine environmental protection and urges
states to adhere to the 1985 Montreal Guidelines for the Protection of the
Marine Environment from Land-Based Sources.89
References
(p. 364) (F) Other Conventions and Institutions
Numerous other environmental regimes, established by international
conventions, exist to regulate different types of environmental risks and
impacts. Examples include the Convention on Early Notification of a
Nuclear Accident,90 the Convention on the Protection and Use of
Transboundary Watercourses and Lakes,91 the Convention on the
Transboundary Effect of Industrial Accidents,92 the Biodiversity
Convention, the Protocol on Further Reduction of Sulphur
Emissions,93 and the Convention on the Law of the Non-Navigational
Uses of International Watercourses.94
There is a clear trend towards the development of issue-specific legal
mechanisms as a preferred means of dealing with environmental
problems; the articulation of international legal principles through dispute
resolution processes is gradual and cannot address issues of prevention
and collective action in the fine-grained way that law-making via treaty
can. Nonetheless, political compromises in negotiation and a reliance on
national implementation of texts once adopted both raise their own
difficulties, and there can be striking differences between the text of an
international environmental agreement and how it operates in practice.
4. Evaluation
Since the 1970s, general principles of international law have been
adapted to reflect concerns as to the protection of the environment,
including the prevention of transboundary environmental harm, with some
new approaches to collective action emerging: an emphasis on
preventing foreseeable harm (the precautionary principle), on assigning
responsibility (the polluter-pays principle), and emphasizing the
importance of integrating environmental protection within economic
activity (sustainable development). In addition, numerous treaty-based
regimes have responded to particular environmental issues.
The instruments of international environmental law are found in
multilateral, regional, and bilateral agreements. States increasingly have
duties not just in respect of transboundary environmental harm or the
global environment, but also in respect of conserving their own domestic
environment.95 Although implementation in national law and practice
remains uneven, the authoritative statement of principles in international
environmental agreements, and the dispute resolution and law-making
institutions attached to them, provide a reference point for future
development in the field.
References
Footnotes:
1
Kummer, International Management of Hazardous Wastes (1995);
Okowa, State Responsibility for Transboundary Air Pollution (2000); de
Sadeleer, Environmental Principles (2002); Sands, Principles of
International Environmental Law (2nd edn, 2003); Yamin &
Depledge, The International Climate Change Regime (2004); Stephens
(2006) 25 AYIL 227; Bodansky, Brunnee & Hey, The Oxford Handbook of
International Environmental Law (2007); Birnie, Boyle &
Redgwell, International Law and the Environment (3rd edn, 2009);
Stephens, International Courts and Environmental Protection (2009);
Hunter, Salzman & Zaelke, International Environmental Law and
Policy (2010); Redgwell, in Evans (ed), International Law (3rd edn, 2010)
687.
2
(1938) 3 RIAA 1905; (1941) 3 RIAA 1938.
3
(UK v Albania), ICJ Reports 1949 p 4.
4
4
(Australia v France), ICJ Reports 1974 p 253; (New Zealand v France),
ICJ Reports 1974 p 457.
5
(Nauru v Australia), ICJ Reports 1992 p 240.
6
Responsibilities and Obligations of States Sponsoring Persons and
Entities with Respect to Activities in the Area, ITLOS Case No 17
(Advisory Opinion, 1 February 2011) available at www.itlos.org.
7
(Hungary/Slovakia), ICJ Reports 1997 p 7.
8
Pulp Mills on the River Uruguay (Argentina v Uruguay), ICJ Reports
2010 p 14.
9
E.g. Southern Bluefin Tuna (1999) 117 ILR 148; MOX Plant (2001) 126
ILR 257.
10
E.g. US—Gasoline, WTO Doc WT/DS2/AB/R, 29 April 1996; US—
Shrimp WTO Doc WT/DS58/AB/R, 12 October 1998; Brazil—Measures
Affecting Imports of Retreaded Tyres, WTO Doc WT/DS332/AB/R, 3
December 2007.
11
ICJ Pleadings, 1 Nuclear Tests, 479–90 (Argument of Byers QC).
12
The Court dismissed the application on the basis that, as France had
made a unilateral declaration that it would cease nuclear testing, the
claim raised by Australia and New Zealand was rendered moot: Australia
v France, ICJ Reports 1974 p 253, 271–2; New Zealand v France, ICJ
Reports 1974 p 457, 477. See Elkind (1974) 8 Vand JTL 39; Thierry
(1974) 20 AFDI 286; Franck (1975) 69 AJIL 612; Lellouche (1975)
16 Harv ILJ 614; Macdonald & Hough (1977) 20 GYIL 337; Stephens
(2009) 137–50; Watts, ‘Nuclear Tests Cases’ (2007) MPEPIL.
Also: Request for an Examination of the Situation in Accordance with
Paragraph 63 of the Court’s Judgment of 20 December 1974 in the
Nuclear Tests Case, ICJ Reports 1995 p 288.
13
Birnie, Boyle & Redgwell (3rd edn, 2009) 228.
14
ICJ Reports 1974 p 457, 494–523 (Judges Onyeama, Dillard, Jiménez
de Aréchaga & Waldock, joint diss).
15
In GabčIkovo-Nagymaros, ICJ Reports 1997 p 7, the Special
Agreement specifically excluded provisional measures. But for a
successful application see Indus Waters Kishenganga Arbitration
(Pakistan v India), Order of 23 September 2011, available at www.pcacpa.org/showpage.asp?pag_id=1392.
16
Passage through the Great Belt (Finland v Denmark), Order of 10
September 1992, ICJ Reports 1992 p 348.
17
Land Reclamation by Singapore (Malaysia v Singapore) (2003) 126
ILR 487 (provisional measures).
18
See Southern Bluefin Tuna (1999) 117 ILR 148, the beneficial
consequences of which were not entirely eliminated by the Annex VII
tribunal’s denial of jurisdiction: (2000) 119 ILR 508. Likewise the
improved interstate co-operation that resulted from the limited provisional
measures orders in MOX Plant (2001) 126 ILR 257 assisted in the
resolution of that problem, notwithstanding the subsequent decision of
the ECJ: Case C–459/03, Commission v Ireland [2006] ECR I-4635.
Further: Indus Waters Kishenganga Arbitration, Order of 23 September
2011. For environmental cases in which provisional measures were
refused: Great Belt, Provisional Measures, Order of 29 July 1991, ICJ
Reports 1991 p 12; Pulp Mills, Provisional Measures, Order of 23
January 2007, ICJ Reports 2007 p 3.
19
For discussion of environmental treaty ratification in the 1900s: Frank
(1999) 69 Sociological Inquiry 523.
20
9 November 1933, 172 LNTS 241.
21
7 February 1936, 178 LNTS 310.
22
8 June 1937, 190 UNTS 79.
23
World Commission on Environment and Development (WCED), Our
Common Future (1987).
24
A/CONF.151/26/Rev.1, Annex II, 12 August 1992.
25
A/CONF.151/26 (Vol 1), Annex I, 12 August 1992.
26
A/CONF.151/26 (Vol 3), Annex III, 14 August 1992.
27
5 June 1992, 1760 UNTS 79.
28
9 May 1992, 1771 UNTS 107. Further: Yamin & Depledge (2004).
29
29
De Sadeleer (2002) ch 2; Sands (2nd edn, 2003) 246–9.
30
GabčIkovo-Nagymaros, ICJ Reports 1997 p 7, 78.
31
ILC Ybk 2001/II(2), 144–70.
32
Knox (2002) 96 AJIL 292, 308.
33
In 2006 the ILC adopted a set of eight draft principles on the allocation
of loss in case of transboundary harm arising out of hazardous activities;
GAOR, 58th Session, Supplement No 10, A/61/10, 106–82.
Further: Boyle (2005) 17 JEL 3. Unlike the case of prevention of harm,
the adoption of a convention is not envisaged in relation to the allocation
of loss.
34
ILC Ybk 2001/II(2), 150 (Commentary to Art 1, §6).
35
Ibid, 153–5 (Art 3): Handl, in Bodansky, Brunnee & Hey (2007) 540.
36
Handl, in Bodansky, Brunnee & Hey (2007) 540.
37
De Sadeleer (2002) ch 3; Freestone & Hey (eds), The Precautionary
Principle and International Law (1996); Sands (2nd edn, 2003) 266–79;
Birnie, Boyle & Redgwell (3rd edn, 2009) 159–64; Zander, The
Application of the Precautionary Principle in Practice(2010);
Foster, Science and the Precautionary Principle in International Courts
and Tribunals (2011); Schröder, ‘Precautionary Approach/Principle’
(2009) MPEPIL.
38
Bodansky, Brunnee & Hey (2007) 599.
39
Ibid, 598.
40
Hey (1991–92) 4 GIELR 307.
41
Sands (2nd edn, 2003) 212. For a critical perspective: Sunstein
(2002–3) 151 U Penn LR 1003.
42
Birnie, Boyle & Redgwell (3rd edn, 2009) 161.
43
For an exploration of how the precautionary approach developed in
different national jurisdictions: Cameron & Abouchar (1991) 14 Boston
Col ICLR 4.
44
45
Bodansky, Brunnee & Hey (2007) 599–600.
45
Birnie, Boyle & Redgwell (3rd edn, 2009) 604–7.
46
ITLOS Advisory Opinion, §§125–35.
47
Boyle & Freestone (eds), International Law and Sustainable
Development (1999); EC Commission, The Law of Sustainable
Development (2000); Sands (2nd edn, 2003) 252–66; Cordonier Segger
& Khlalfan (eds), Sustainable Development Law (2004); Beyerlin,
‘Sustainable Development’ (2009) MPEPIL; Cordonier Segger, Gehring &
Newcombe (eds), Sustainable Development in World Investment
Law (2011). Further: ILA, Report of the 70th Conference (2002) 380; ILA
New Delhi Declaration of Principles of International Law relating to
Sustainable Development, A/57/329, 31 August 2002.
48
Cassese, International Law (2nd edn, 2005) 492–3.
49
WCED (1987) 43.
50
E.g. Agreement Establishing the World Trade Organization, 15 April
1994, 1867 UNTS 410, preamble; TFEU (2008) OJEU C 115/47, Art 11.
51
De Sadeleer (2002) ch 1.
52
Cassese (2nd edn, 2005) 492–3.
53
Birnie, Boyle & Redgwell (3rd edn, 2009) 322.
54
Sands (2nd edn, 2003) 280.
55
ICJ Reports 1996 p 226, 241–2. Also: Rio Declaration, Principle
2; Institute of International Law, Resolution on Responsibility and Liability
under International Law for Environmental Damage (1998) 67 Ann de
l’Inst 487; GabčIkovo-Nagymaros, ICJ Reports 1997 p 7, 41.
56
Generally: Knox (2002) 96 AJIL 291; Sands (2nd edn, 2003) ch 16;
Craick, The International Law of Environmental Impact
Assessment (2008); Epiney, ‘Environmental Impact Assessment’
(2009) MPEPIL.
57
58
Sands (2nd edn, 2003) 799–800.
Directive 85/337/EEC, Council Directive of 27 June 1985 on the
assessment of the effects of certain public and private projects on the
environment, 85/337/EEC OJ L175, 05/07/1985 0040–0048.
59
59
Further: Knox (2002) 96 AJIL 292.
60
25 February 1991, 1989 UNTS 309.
61
Knox (2002) 96 AJIL 292, 302.
62
Economic Commission for Europe, Review of Implementation of the
Espoo Convention, ECE/ MP.EIA/11 (2008), Section 1.4: Findings of the
Review.
63
ICJ Reports 2010 p 14, 82q–3.
64
Ibid, 83.
65
For the effectiveness of international environmental regimes:
Raustiala & Slaughter, in Carlsnales, Risse & Simmons (eds), Handbook
of International Relations (2002); Young (ed), The Effectiveness of
International Environmental Regimes (1999); Young, Rosenau &
Czempiel (eds), Governance Without Government (1992).
66
3 March 1973, 993 UNTS 243.
67
For the history: Sand (1997) 8 EJIL 29; Bowman, Davies & Redgwell
(eds), Lyster’s International Wildlife Law (2nd edn, 2011) 483–6.
68
CITES, Art 2(1)—Fundamental Principles.
69
Favre (1993) 33 NRJ 875; Wijnstekers, The Evolution of
CITES (1995); Hutton & Dickson (eds), Endangered Species Threatened
Convention (2000); Young (2003) 14 CJIELP 167.
70
22 March 1985, 1513 UNTS 293.
71
Montreal Protocol on Substances That Deplete the Ozone Layer, 16
September 1987, 1522 UNTS 3.
72
Blegen (1987–88) 16 DJILP 413, 424.
73
Birnie, Boyle & Redgwell (3rd edn, 2009) 354.
74
Ibid, 355. Also: Christie, The Ozone Layer (2001); Yoshida, The
International Legal Régime for the Protection of the Stratospheric Ozone
Layer (2001).
75
Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal, 22 March 1989, 1673 UNTS 57.
Generally: Kummer (1992) 41 ICLQ 530; Kummer (1995); Sanders &
Bowal (2001) 11 JEL & P 143; Sands (2nd edn, 2003) 691–5; Moen
(2008) 32 Marine Policy 1053.
76
Sands (2nd edn, 2003) 692; Sonak, Sonak & Guriyan (2008) 8 Int
Environ Agreements 143; Quadri (2010) 22 Florida JIL 467.
77
Generally: Yamin & Depledge (2004); Freestone & Streck (eds), Legal
Aspects of the Kyoto Protocol Mechanisms (2005); Asselt, Sindico &
Mehling (2008) 30 Law & Policy 423; Birnie, Boyle & Redgwell (3rd edn,
2009) 356–77; Held, Hervey & Theros (eds), The Governance of Climate
Change (2011).
78
Intergovernmental Panel on Climate Change (IPCC), Climate Change
2007: A Synthesis
Report (2007): www.ipcc.ch/publications_and_data/ar4/syr/en/contents.html
The IPCC’s Fifth Assessment Report is currently underway, with
completion expected in 2014.
79
Kyoto Protocol to the United Nations Framework Convention on
Climate Change, FCCC/CP/1997/L.7/ Add.1, 10 December 1997. Also:
UN Convention to Combat Desertification in those Countries
Experiencing Serious Drought and/or Desertification, Particularly in
Africa, 12 September 1994, 1954 UNTS 3.
80
Peterson,’Mointoring, Accounting and enforcement in Emissisons
Trading Regimes’, OECD Doc CCNM/GF/SD/ENV(2003)5/Final Yamin &
Depledge (2004) 156; Tietenberg Emissions Trading Principles and
Practice (2nd edn, 2006 170).
81
Sands (2nd edn, 2003) 391–458. Generally chapter 12.
82
10 December 1982, 1833 UNTS 3. For discussion: Charney (1994)
28 Int Lawyer 879.
83
22 September 1992, 2354 UNTS 67.
84
Generally: Sands (2nd edn, 2003) 399–408.
85
Ibid, 393–5.
86
Ibid, 415–48.
87
87
International Convention for the Prevention of Pollution from Ships, as
modified by the Protocol of 1978, 17 February 1978, 1340 UNTS 61.
88
Convention for the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter, 29 December 1972, 1046 UNTS 138.
89
A/CONF.151/26/Rev.1 (Vol I), 238.
90
28 September 1986, 1439 UNTS 275.
91
17 March 1992, 1936 UNTS 269.
92
17 March 1992, 2105 UNTS 457.
93
14 June 1994, 2030 UNTS 122.
94
GA Res 51/229, 21 May 1997 (not yet in force).
95
E.g. Biodiversity Convention, preamble, Arts 6, 8.
Part VI International Transactions
(p. 367) 16 The Law of Treaties
1. Introduction1
Many international disputes are concerned with the interpretation and
effects of international agreements, that is, treaties, and much of the
practical content of state relations is embodied in and structured by
treaties. International organizations, including the United Nations, have
their legal basis in multilateral treaties. So too do arrangements on
matters ranging from geostationary orbit to the regulation of intellectual
property to the governance of Antarctica. Networks of bilateral treaties
regulate such matters as aviation, boundaries, extradition, investment
protection, and shared natural resources.
Since 1949 the ILC has concerned itself with the law of treaties.2 In 1966
it adopted a set of 75 draft articles:3these formed the basis for the 1969
Vienna Convention on the Law of Treaties (VCLT), which entered into
force on 27 January 1980.4
At the time of its adoption, it could not have been said that the VCLT was,
taken as a whole, declaratory of general international law. Various
provisions clearly involved progressive development. Nonetheless it has
had a very strong influence, and a good number of articles are now
essentially declaratory of existing law; those which are not
References
(p. 368) constitute presumptive evidence of emergent rules.5 Indeed its
provisions are regarded as the primary source of the law, irrespective of
whether the VCLT applies qua treaty in the given case.6 In Namibia the
Court observed that:
The rules laid down by the Vienna Convention…concerning termination of a treaty
relationship on account of breach (adopted without a dissenting vote) may in many
respects be considered as a codification of existing customary law on the subject.7
The European Court of Justice has observed that the customary
international law of treaties forms part of the European legal order, and it
generally follows the VCLT (implicitly or explicitly);8 the WTO dispute
settlement body has also emphasized the customary status of the VCLT
rules of treaty interpretation.9
The Convention was adopted by a very substantial majority at the Vienna
Conference10 and covers the main areas of the law of treaties. It does not
deal with (a) treaties between states and organizations, or between two
or more organizations;11 (b) state succession to treaties;12 or (c) the
effect of armed conflict on treaties,13 each of which has been the subject
of separate ILC projects.
References
(p. 369) (A) Definition of ‘Treaty’
A provisional ILC draft defined a ‘treaty’ as:
any international agreement in written form, whether embodied in a single instrument or
in two or more related instruments and whatever its particular designation (treaty,
convention, protocol, covenant, charter, statute, act, declaration, concordat, exchange of
notes, agreed minute, memorandum of agreement, modus vivendi or any other
appellation), concluded between two or more States or other subjects of international law
14
and governed by international law.
The reference to ‘other subjects’ of the law was designed to provide for
treaties concluded by international organizations, the Holy See, and other
international entities. But the ILC’s Final Draft, and the VCLT itself, are
confined to treaties between states (Article 1).15 Article 3 provides that
the fact that the Convention is thus limited shall not affect the legal force
of agreements between states and other subjects of international law or
between such other subjects.
Article 2(1)(a) defines a treaty as ‘an international agreement concluded
between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation’. The distinction
between a transaction which is a definitive legal commitment between
two states, and one which involves something less than that is difficult to
draw. But the form or title of the instrument, for example, a joint
communiqué, is not decisive.16
Article 2(1)(a) also stipulates that the agreements to which the
Convention extends must be ‘governed by international law’; this
excludes commercial arrangements made between governments under
one or more national laws.17
(B) The Functions of Treaties
McNair long ago pointed to the variety of functions which treaties
perform.18 Some treaties, dispositive of territory and rights in relation to
territory, are like conveyances.
References
(p. 370) Treaties involving bargains between a few states are like
contracts; whereas the multilateral treaty creating either a set of rules,
such as the Hague Conventions on the Law of War, or an institution, such
as the Copyright Union, is ‘law-making’. The treaty constituting an
institution is akin to a charter of incorporation. It is certainly fruitful to
contemplate the different features of different kinds of treaties and even
to expect the development of specialized rules. Thus the effect of war
between parties varies according to the type of treaty involved. However,
McNair and others have tended to support the position that the genus of
treaty produces fairly general effects on the applicable rules. Thus the
lawmaking character of a treaty is said (a) to rule out recourse to
preparatory work as an aid to interpretation; (b) to avoid recognition by
one party of other parties as states or governments; and (c) to render the
doctrine of rebus sic stantibus inapplicable.19
By contrast the ILC deliberately avoided any classification of treaties
along broad lines and rejected the concept of the ‘objective regime’ in
relation to the effects of treaties on non-parties. It accepted specialized
rules in a few instances,20 but did not consider it necessary to make a
distinction between ‘law-making’ and other treaties.21 The ILC and in turn
the Vienna Conference saw the law of treaties as essentially a
unity.22Moreover jurists are now less willing to accept categorical
distinctions between treaty-contract (vertrag) and treaty-law
(vereinbarung).23 The contrast intended between the bilateral political
bargain and the ‘legislative act’ produced by a broad international
conference does not correspond to reality. Political issues and bargaining
lie behind law-making efforts like UNCLOS III. Further, the distinction
obscures the real differences between treaty-making and legislation in a
municipal system. Nonetheless, it should be acknowledged that some of
the VCLT rules, for example Article 18 and the rules relating to
reservations, may work better with contractual-type agreements than with
law-making ones.
(C) Participation in Treaties
In an early draft the ILC defined a ‘general multilateral treaty’ as ‘a
multilateral treaty which concerns general norms of international law and
deals with matters of general interest to States as a whole’.24 But which
states and other entities are permitted to participate in drawing up such a
treaty is a matter for the proponents, or in the case of a treaty concluded
under the auspices of an international organization, the organization. In
the ILC it was proposed that states should have a right to become parties
to this type of treaty, a solution adopted in the insubstantial form that the
right existed except where the treaty or the rules of an international
organization (p. 371) provided otherwise.25 The ILC’s Final Draft
contained no provision on the subject and amendments intended to give
‘all States a right to participate in multilateral treaties’ were defeated at
the Vienna Conference.26
2. Conclusion of Treaties
(A) Form and Intention27
How treaties are negotiated and brought into force depends on the
intention of the parties. There are no overriding requirements of
form:28 for example, an agreement recorded in an exchange of letters or
even the minutes of a conference may have the same legal effect as a
formally drafted treaty contained in a single instrument.29 In practice form
is governed partly by usage, and will vary according to whether the
agreement is expressed to be between states, heads of states,
governments, or particular ministers or departments. The VCLT applies
only to agreements ‘in written form’ but Article 3 stipulates that this
limitation is without prejudice to the legal force of agreements ‘not in
written form’.30
Where the parties wish to record mutual understandings for the conduct
of their business or other relationships, but do not intend to create legally
binding obligations, they often conclude non-binding instruments
commonly referred to as memoranda of understanding (MOUs).31 The
name of the instrument is not conclusive as to its legal status, however;
what matters is the intention of the parties as reflected in the terms of the
instrument.32
(B) Full Powers and Signature33
The era of absolute monarchs and slow communications produced a
practice whereby a state agent would be given full powers to negotiate
and to bind his principal. In modern practice, full powers give the bearer
authority to negotiate and to sign and seal
References
(p. 372) a treaty but not to commit the state. In the case of less formal
agreements full powers are often dispensed with.34 Thus the definition in
VCLT Article 2(c):
…a document emanating from the competent authority of a State designating a person
or persons to represent the State for negotiating, adopting or authenticating the text of a
treaty, for expressing the consent of a State to be bound by a treaty, or for accomplishing
any other act with respect to a treaty.
One example of full powers arose in Land and Maritime Boundary
between Cameroon and Nigeria, with the Court confirming that the full
powers afforded to a head of state derive from his or her position at the
top of a state’s hierarchy.35 This position was expanded upon—beyond
the law of treaties—in Genocide, with VCLT cited for the proposition that
‘every Head of State is presumed to be able to act on behalf of the State
in its international relations’.36
The successful outcome of negotiation is the adoption and authentication
of an agreed text. Signature has, as one of its functions, authentication,
but a text may be authenticated in other ways, for example by
incorporation in the final act of a conference or by initialling.37
Where the signature is subject to ratification, acceptance, or approval,
signature does not establish consent to be bound nor does it create an
obligation to ratify.38 What it does is to qualify the signatory to proceed to
ratification, acceptance, or approval; it also creates an interim obligation
of good faith to refrain from acts calculated to frustrate the objects of the
treaty.39
Where the treaty is not subject to ratification, acceptance, or approval,
signature establishes consent to be bound. Sometimes signature may be
dispensed with: the text may be adopted or approved by resolution of the
UN General Assembly and submitted to member states for accession.
(C) Ratification
Ratification involves two distinct procedural acts: the first an internal act
of approval (e.g. by the parliament, or the Crown in the UK); the second
the international procedure
References
(p. 373) which brings a treaty into force by a formal exchange or deposit
of instruments of ratification. Ratification in the latter sense is an
important act involving consent to be bound.40 But everything depends
on the intention of the parties, and modern practice contains many
examples of less formal agreements intended to be binding on signature.41 As to the small number of treaties containing no express provision
on ratification, the ILC initially considered that ratification should be
required.42 However, it changed its view, partly because of the difficulty of
applying the presumption to treaties in simplified form. VCLT Article 14
regulates the matter by reference to the parties’ intention without any
presumption.
(D) Accession, Acceptance, and Approval
‘Accession’ occurs when a state which did not sign a treaty formally
accepts its provisions: this may be before or after the treaty has entered
into force. The conditions for accession and the procedure involved
depend on the provisions of the treaty. Accession may be the only means
of becoming a party, as in the case of a convention approved by the
General Assembly and proposed for accession by member
states.43 Recent practice has introduced the terms ‘acceptance’ and
‘approval’ to describe the substance of accession. Terminology is not
fixed, however, and where a treaty is expressed to be open to signature
‘subject to acceptance’, this is equivalent to ‘subject to ratification’.
(E) Other Expressions of Consent to be Bound
These are not the only means by which consent to be bound may be
expressed. Other means may be agreed, for example an exchange of
instruments constituting a treaty.44
(F) Entry into Force, Deposit, and Registration
The provisions of the treaty determine how and when the treaty enters
into force. Where the treaty does not specify a date, there is a
presumption that the treaty comes into force as soon as all the
negotiating states have consented to be bound.45
After a treaty is concluded, the written instruments of ratification,
accession, etc and also reservations and other declarations are placed in
the custody of a depositary,
References
(p. 374) which may be one or more states or an international
organization.46 The UN Secretariat plays a significant role as depositary
of multilateral treaties.
Article 102 of the UN Charter provides as follows:
1. Every treaty and every international agreement entered into by
any Member of the United Nations aft er the present Charter
comes into force shall as soon as possible be registered with the
Secretariat and published by it.
2. No party to any such treaty or international agreement which
has not been registered in accordance with the provisions of
paragraph 1 of this Article may invoke that treaty or agreement
before any organ of the United Nations.
This provision (which goes back to President Woodrow Wilson)47 is
intended to discourage secret diplomacy and to promote the availability
of treaty texts. The Secretariat accepts agreements for registration
without conferring any status on them or the parties which they would not
have otherwise. However, this is not the case where the regulations
provide for ex officio registration. This involves initiative by the Secretariat
and extends to agreements to which the UN is a party, trusteeship
agreements, and multilateral agreements with the UN as depositary. The
phrase ‘every international agreement’ has a wide scope. Technical
intergovernmental agreements, declarations accepting the optional
clause in the Statute of the International Court, agreements between
organizations and states, agreements between organizations, and
unilateral engagements of an international character are included.48
Non-registration does not affect the validity of agreements, but these may
not be relied upon in proceedings before UN organs. In relation to the
similar provision in the Covenant of the League the view was expressed
that an unregistered agreement could be invoked if otherwise
appropriately publicized.49
3. Reservations50
VCLT Article 2(d) defines a reservation as ‘a unilateral statement,
however phrased or named, made by a State, when signing, ratifying,
accepting, approving or acceding to
References
(p. 375) a treaty, whereby it purports to exclude or to modify the legal
effect of certain provisions of the treaty in their application to that State’. It
is to be distinguished from an interpretative declaration, which is an
expression of view by a declarant state as to the meaning of a treaty
which is not put forward as a condition of being bound.51
Considerable uncertainty has surrounded the law and practice with
regard to reservations.
(A) Historical Background
League of Nations practice in regard to multilateral conventions lacked
consistency. The League Secretariat, and later the UN SecretaryGeneral, as depositary of conventions concluded under the auspices of
the League, followed the principle of absolute integrity: a reservation
would only be valid if the treaty permitted it or all contracting parties
accepted it; otherwise the reserving state would not be considered a
party.52 In contrast the Pan-American Union, later the Organization of
American States, adopted a flexible system which permitted a reserving
state to become a party vis-à-vis non-objecting states. This system,
dating from 1932, promotes universality at the expense of consistency of
obligation.
Following the adoption of the Genocide Convention in 1948, a divergence
of opinion arose on the admissibility of reservations to the Convention,
which contained no provision on the subject; an advisory opinion was
sought. The International Court stressed the divergence of practice and
the special characteristics of the Convention, including the intention of
the drafters that it be universal in scope. The Court’s principal finding was
that ‘a State which has made…a reservation which has been objected to
by one or more of the parties to the Convention but not by others, can be
regarded as being a party to the Convention if the reservation is
compatible with the object and purpose of the Convention’.53
In 1951 the ILC rejected the ‘compatibility’ criterion as too subjective,
preferring a rule of unanimous consent.54However, in 1952 the General
Assembly requested the Secretary-General to conform practice to the
opinion of the Court and, in respect of
References
(p. 376) future conventions of which the Secretary-General was
depositary, to leave it to each state to draw its own conclusions from
reservations communicated to it.55 In 1959 the General Assembly
extended this to cover all UN conventions, unless they contained contrary
provisions.56 In 1962 the ILC decided in favour of the ‘compatibility’
rule.57
(B) Impermissible Reservations
VCLT Article 20 provides for acceptance of and objection to reservations
other than those expressly authorized by a treaty.58 The ‘compatibility’
test is by no means ideal;59 in particular its application is a matter of
appreciation, left to individual states. How is the test to apply to
provisions for dispute settlement, for example? In practical terms the
‘compatibility’ test may not sufficiently maintain the balance between the
integrity and the effectiveness of multilateral conventions in terms of a
firm level of obligation. It is very doubtful whether there can be any place
for the ‘compatibility’ test in relation to unlawful reservations.60
The issue of severability in relation to human rights treaties has been
particularly controversial.61 In Belilos62and Loizidou63 the European
Court of Human Rights treated the objectionable reservation as
severable. So did the Human Rights Committee: a state could not, for
example, reserve the right to subject persons to torture, or to presume a
person guilty unless proven innocent;64 rather than the state’s
participation in the treaty being negated, it was held to be a party to the
treaty without benefit of its reservation, whatever its underlying intention
may have been.
(C) The ILC Guide (2011)
Some of the difficulties in respect of permissibility of reservations are
addressed in the comprehensive Guide to Practice on Reservations to
Treaties adopted by the
References
65
(p. 377) ILC in 2011, the culmination of 15 years of work.65 The Guide is
intended as a ‘toolbox’ for practitioners in dealing with the permissibility
and effects of reservations, pointing them towards solutions consistent
with existing rules. The Guide is not a binding instrument and is not
intended to form the basis of a convention66 but it is likely to make a
significant contribution to clarification of law and practice in this area.
On the question of severability the Guide adopts an ingenious
intermediate solution. Under Guideline 4.5.1, an invalid or impermissible
reservation is null and void, and has no legal effect. Practice has varied
on whether the author of an invalid reservation remains bound by the
treaty without the benefit of the reservation, or whether the nullity of the
reservation vitiates that party’s consent to be bound altogether.67 The
Guide provides a presumption that the former applies, unless the
contrary intention of that party is expressed or otherwise established.68 In
this way the Guide affirms that the key to the status of the reserving party
in relation to the treaty is that party’s intention,69 and offers ‘a reasonable
compromise between the underlying principle of treaty law—mutual
consent—and the principle that reservations prohibited by the treaty or
incompatible with the object and purpose of the treaty are null and
void’.70
4. Observance, Application, and Interpretation
of Treaties
(A) Pacta Sunt Servanda
The VCLT entails a certain presumption as to the validity and
continuance in force of a treaty.71 This may be based upon pacta sunt
servanda as a general principle of international law: a treaty in force is
binding upon the parties and must be performed by them in good
faith.72 Legally, treaties are enduring instruments, not easily disposed
of.73 Internal law may not be invoked to justify a failure to perform a
treaty.74
References
(p. 378) (B) Application of Treaties
Treaties are not retroactive; that is, unless a contrary intention is
established, parties are only bound in respect of acts or facts taking place
after the treaty has entered into force for the party in question.75 Unless
otherwise stated, they apply within the whole territory of the states
parties.76
VCLT Article 30 covers the application of successive treaties to the same
subject-matter.77 The relation of treaties between the same parties and
with overlapping provisions is primarily a matter of interpretation, aided
by presumptions. Thus it is to be presumed that a later treaty prevails
over an earlier treaty concerning the same subject-matter. A treaty may
provide expressly that it is to prevail over subsequent incompatible
treaties; Article 103 of the UN Charter goes further by providing that in
the case of conflict, obligations under the Charter prevail over obligations
arising under any other international agreement. Article 351 of the Treaty
on the Functioning of the European Union (TFEU) provides that preexisting rights and obligations shall not be affected by its provisions or
those of the Treaty on European Union (TEU), but that where
incompatibilities exist, parties shall take appropriate steps to eliminate
them.78 Whether or not there is a conflict in a given case is of course a
matter of interpretation: thus a resolution which is capable of being
performed in a manner consistent with the International Covenant on Civil
and Political Rights, for example, may be construed as not intending to
override the relevant rights.79 VCLT Article 59 provides for the termination
or suspension of a treaty in certain circumstances where all parties have
concluded a later treaty relating to the same subject-matter.
(C) Interpretation of Treaties80
(i) Competence to interpret
Obviously the parties have competence to interpret a treaty, but this is
subject to the operation of other legal rules. The treaty itself may confer
competence on an ad hoc
References
(p. 379) tribunal or the International Court. The UN Charter is interpreted
by its organs, which may seek advisory opinions from the Court.81
(ii) The ‘rules of interpretation’
Various ‘rules’ for interpreting treaties have been put forward over the
years.82 These include the textual approach, the restrictive approach, the
teleological approach, and the effectiveness principle. Of these only the
textual approach is recognized in VCLT: Article 31 emphasizes the
intention of the parties as expressed in the text, as the best guide to their
common intention.83 The jurisprudence of the International Court likewise
supports the textual approach.84
In a number of cases the Permanent Court committed itself to the
principle that provisions implying a limitation of state sovereignty should
receive a restrictive inter-pretation.85 As a general principle of
interpretation this is question-begging, and later decisions have given
less scope to it.86 However, the principle may operate in cases
concerning regulation of core territorial privileges. In these instances it is
not an ‘aid to interpretation’ but an independent principle.
According to the teleological approach, any ambiguity in a treaty text
should be resolved by preferring the interpretation which gives effect to
the object and purpose of the treaty.87 This may involve a judicial
implementation of purposes in a fashion not contemplated by the parties.
The teleological approach has many pitfalls, not least its overt ‘legislative’
character.
A version of the teleological approach is often referred to under the rubric
of ‘evolutive’ (or ‘progressive’) interpretation. It was apparently applied
in Navigational Rights. There the question was whether the phrase ‘for
the purposes of commerce’ in a boundary treaty of 1858 extended to
cover commercial tourism, that is, the carriage
References
(p. 380) of passengers for hire. The Court held that the term in the 1858
treaty should be interpreted so as to cover all modern forms of
commerce, of which tourism is one:
[W]here the parties have used generic terms in a treaty, the parties necessarily having
been aware that the meaning of the terms was likely to evolve over time, and where the
treaty has been entered into for a very long period or is ‘of continuing duration’, the
parties must be presumed, as a general rule, to have intended those terms to have an
evolving meaning.88
The result was evidently correct; it was relevant that the right of transit
was permanent in character, being part of the regime of the boundary.
But the Court may have assumed that the term ‘commerce’ in the midnineteenth century had a stereotyped meaning; in fact, persons were
carried for hire on the river at the time of the treaty.
As to the effectiveness principle, in opinions concerning powers of UN
organs, the Court has often adopted a principle of institutional
effectiveness and has implied the existence of powers which in its view
were necessary or conducive to the purposes of the Charter.89 The
European Court of Human Rights has preferred an effective and
‘evolutionary’ approach in applying the European Convention on Human
Rights.90 However, this approach suffers from the same defects as the
principle of restrictive interpretation. The ILC did not adopt the principle,
considering that, as a matter of existing law it was reflected sufficiently in
the doctrine of interpretation in good faith in accordance with the ordinary
meaning of the text.91
Care must be taken to ensure that such ‘rules’ do not become rigid and
unwieldy instruments that might force a preliminary choice of meaning
rather than acting as a flexible guide. The ILC avoided taking a
doctrinaire position and instead confined itself to isolating ‘the
comparatively few general principles which appear to constitute general
rules for the interpretation of treaties’.92 Those principles appear as an
economical code in VCLT Articles 31 and 32, following exactly the ILC’s
Final Draft .
(iii) The general rule: VCLT Article 31
VCLT Article 31, entitled ‘General rule of interpretation’, has been
recognized by the International Court as reflecting customary
93
international law.93 It provides as follows:
1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose.
References
(p. 381) 2. The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its preamble
and annexes:
(a) any agreement relating to the treaty which was made
between all the parties in connection with the conclusion of
the treaty;
(b) any instrument which was made by one or more parties
in connection with the conclusion of the treaty and accepted
by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the application
of its provisions;
(b) any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its
interpretation;
(c) any relevant rules of international law applicable in the
relations between the parties.
4. A special meaning shall be given to a term if it is established
that the parties so intended.
In its Commentary the ILC emphasized that applying this ‘general rule’
would be a single combined operation: hence the use of the singular. The
various elements present in any given case would interact.
The first principle stated in VCLT Article 31 is that ‘a treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty’. In Polish Postal Service in Danzig the
Permanent Court observed that the postal service which Poland was
entitled to establish in Danzig by treaty was not confined to working
inside the postal building: ‘postal service’ must be interpreted ‘in its
ordinary sense so as to include the normal functions of a postal
service’.94 Since then the principle of ordinary meaning has become well
established as a fundamental guide to interpreting treaties.
A corollary of the principle of ordinary meaning is the principle of
integration: the meaning must emerge in the context of the treaty as a
whole (including the text, its preamble and annexes, and any agreement
or instrument related to the treaty and drawn up in connection with its
conclusion)95 and in the light of its object and purpose.96 Another
corollary is the principle of contemporaneity: the language of
References
(p. 382) the treaty must be interpreted in the light of the rules of general
international law in force at the time of its conclusion,97 and also in the
light of the contemporaneous meaning of terms.98 The doctrine of
ordinary meaning involves only a presumption: a meaning other than the
ordinary meaning may be established, but the proponent of the special
meaning has a burden of proof.99 In complex cases the tribunal will be
prepared to make a careful inquiry into the precise object and purpose of
a treaty.100
Article 31(3) lists further factors to be taken into account along with the
context (as defined in Article 31(2)). The parties may make an agreement
regarding the interpretation of the treaty, or the application of its
provisions. Such agreements can take various forms; they need not be
formal amendments to the treaty.101
Reference may be made to ‘subsequent practice in the application of the
treaty which clearly establishes the understanding of all the parties
regarding its interpretation’.102 Subsequent practice by individual parties
also has some probative value. In a series of important advisory opinions
the Court has made considerable use of the subsequent practice of
103
organizations in deciding controversial issues of interpretation.103 Two
points arise. The first is that members who were outvoted in the organs
concerned may not be bound by the practice. Secondly, the practice of
political organs involves elements of discretion and opportunism: what is
significant is the reasoning behind the practice which can indicate its
legal relevance, if any.104
The rule contained in Article 31(3)(c), requiring interpreters to take into
account ‘any relevant rules of international law applicable in the relations
between the parties’, places treaties within the wider context of general
international law.105 In Oil Platforms the Court described the application
of relevant rules of international law as an ‘integral part of the task of
interpretation’,106 although the majority judgment has been criticized for
the manner in which it then applied substantive customary and Charter
References
(p. 383) rules on the use of force to interpret a treaty provision about
freedom of commerce.107 Article 31(3)(c) has been central to the debate
around the so-called ‘fragmentation’ of international law,108 forming the
basis for arguments promoting systemic integration between different,
more or less specialized areas of the law.109 In a world of multiplying
institutions with overlapping jurisdiction and choices to make between
various sources of applicable law, it is seen as increasingly important to
maintain coherence between what may seem self-contained subsystems
of law.110 Treaties cannot be interpreted in isolation of the wider context,
but at the same time, tribunals should be cautious about using Article
31(3)(c) as a guise for incorporating extraneous rules in a manner that
oversteps the boundaries of the judicial function.111
(iv) Supplementary means of interpretation: VCLT Article 32
The VCLT cautiously qualifies the textual approach by permitting
recourse to further means of interpretation in certain circumstances.
VCLT Article 32 provides:
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to confirm
the meaning resulting from the application of Article 31, or to determine the meaning
when the interpretation according to Article 31:
(a) leaves the meaning ambiguous or obscure; or
112
(b) leads to a result which is manifestly absurd or unreasonable.
In general the Court has refused to resort to preparatory work if the text is
sufficiently clear in itself.113 But on a number of occasions the Court has
used preparatory work to confirm a conclusion reached by other
means.114Preparatory work is an aid to be employed with care, since its
use may detract from the textual approach: moreover, particularly in the
case of multilateral agreements, the records of conference
References
(p. 384) proceedings, treaty drafts, etc may be confused or
inconclusive.115 The ILC has taken the view that states acceding to a
treaty and not taking part in its draft ing cannot claim for themselves the
inadmissibility of the preparatory work, which could have been examined
before accession.116
Resorting to consideration of the preparatory work in cases referred to in
Article 32(b) is not the same as the teleological approach. The textual
approach in practice often leaves the decision-maker with a choice of
possible meanings, and in exercising that choice it is impossible to keep
considerations of policy out of account. Many issues of interpretation are
by no means narrow technical inquiries.
At the Vienna Conference the US proposed an amendment to combine
Articles 31 and 32, thus giving more scope to preparatory work and the
circumstances in which the treaty was concluded. This proposal received
little support. In its Commentary the ILC pointed out that the two articles
should operate in conjunction, and would not have the effect of drawing a
rigid line between ‘supplementary’ and other means of interpretation. At
the same time the distinction itself was justified since the elements of
interpretation in the first article all relate to the agreement between the
parties ‘at the time when or after it received authentic expression in the
text’. Preparatory work did not have the same authentic character
‘however valuable it may sometimes be in throwing light on the
expression of agreement in the text’.117
118
(D) Obligations and Rights for Third States118
The maxim pacta tertiis nec nocent nec prosunt expresses the
fundamental principle that a treaty applies only between the parties to it.
The VCLT refers to this as the ‘general rule’; it is a corollary of the
principle of consent and of the sovereignty and independence of states.
Article 34 provides that ‘a treaty does not create either obligations or
rights for a third State without its consent’. This falls slightly short of
expressing the customary rule, however: besides not creating obligations
or rights, treaties cannot infringe the rights of third states without their
consent.119 This argument has been central to US objections to the
possibility of its nationals becoming subject to the jurisdiction of the
International Criminal Court without its consent, through the operation of
References
(p. 385) Article 12(2)(a) of the Rome Statute,120 although the equation of
nationals (not being state officials) with the state makes this argument
problematic.
The existence and extent of exceptions to the general rule have been
controversial. The ILC did not accept the view that treaties creating
‘objective regimes’ (e.g. the demilitarization of a territory by treaty or a
legal regime for a major waterway) had a specific place in the law of
treaties.121 VCLT Article 35 provides that ‘an obligation arises for a third
State from a provision of a treaty if the parties to the treaty intend the
provision to be the means of establishing the obligation and the third
State expressly accepts that obligation in writing’.
However, two apparent exceptions to the principle exist. First, a rule in a
treaty may become binding on non-parties if it becomes a part of
international custom.122 Secondly, a treaty may provide for lawful
sanctions for violations of the law which are to be imposed on an
aggressor state.123 The VCLT contains a reservation in regard to any
obligation in relation to a treaty which arises for an aggressor state ‘in
consequence of measures taken in conformity with the Charter of the
United Nations with reference to the aggression’ (Article 75).
Article 2(6) of the Charter provides that:
The Organization shall ensure that states which are not Members of the United Nations
act in accordance with these Principles so far as may be necessary for the maintenance
of international peace and security.
Kelsen held the view that the provision created duties, and liabilities to
sanctions under the enforcement provisions of the Charter, for nonmembers.124 Assuming that this was the intention of the draftsmen, the
provision could only be reconciled with general principles by reference to
the status of the principles in Article 2 as general or customary
international law. By now the question is largely academic, given that
virtually all states are members of the UN and the Charter is binding on
them directly as parties.
More controversial is the conferral of rights on third parties, the stipulation
pour autrui. Not infrequently treaties make provisions in favour of
specified third states or for other states generally, for example the treaties
concerning certain of the major international waterways, including, on
one view, the Panama Canal.125 The problem has been to discover
when, if at all, the right conferred becomes perfect and enforceable by
the third state: is the third state required to give express or implicit assent
to the
References
(p. 386) creation of the right before it will benefit, or is it unconditional?
Views were divided, but the ILC took the view that the two opposing
views did not differ substantially in their practical effects. VCLT Article 36
creates a presumption as to the assent of the third state.
The third state may, of course, disclaim any already inhering right
expressly or tacitly through failure to exercise the right. The right of a
third state may not be revoked or modified by the parties if it is
established that it was intended that this could only occur with the
consent of the third state: Article 37(2).
5. Amendment and Modification of Treaties126
The amendment of treaties depends on the consent of the parties, and
the issue is primarily political. However, the lawyer may be concerned
with procedures for amendment, as a facet of the large problem of
peaceful change in international relations. Many treaties, including the
Charter (Articles 108 and 109), provide a procedure for amendment.
International organizations have amendment procedures which in some
cases show considerable sophistication. In the League Covenant (Article
19) and, less explicitly, in the Charter (Article 14), provision for peaceful
change was made as part of a scheme to avoid threats to the peace.
Apart from amendment, a treaty may undergo ‘modification’ when some
of the parties conclude an inter se agreement altering the application of
the treaty between themselves alone: VCLT Article 41 restricts this
capacity in certain cases.
Modification may also result from the conclusion of a subsequent treaty
or even the emergence of a new peremptory norm of general
international law. The ILC’s Final Draft provided that ‘a treaty may be
modified by subsequent practice in the application of the treaty
establishing the agreement of the parties to modify its provisions’.127 This
was rejected at the Vienna Conference on the ground that such a rule
would create instability.128 This result is unsatisfactory. First, Article 39
provides that a treaty may be amended by agreement without requiring
any formality for the expression of agreement. Secondly, a consistent
practice may provide cogent evidence of common consent to a change.
Thirdly, modification of this type occurs in practice. The process of
interpretation through subsequent practice is legally distinct from
modification, although the distinction is often rather fine.
References
(p. 387) 6. Invalidity, Termination, and
Suspension of Treaties129
VCLT Part V governs invalidity, termination, and suspension of the
operation of treaties. It sets out an exhaustive list of grounds (see Article
42(2)). However, the grounds for termination and the requirements of
essential validity do not exhaust the matters relevant to justification for
non-performance of obligations. That issue can arise irrespective of
validity or termination of the source of obligation, the treaty. The topic of
justification belongs to the law of state responsibility,130 expressly
reserved by VCLT Article 73.
(A) Invalidity131
Generally speaking, the validity and continuance in force of a treaty and
of consent to be bound is presumed (Article 42), but various matters may
give rise to issues of invalidity. Invalidity may be relative (where a treaty
is voidable if a party establishes certain grounds) or absolute (where the
treaty is void per se). Issues of invalidity tend to arise rarely in practice.
(i) Violations of Internal Law132
The extent to which constitutional limitations on the treaty-making power
can be invoked on the international plane is a matter of controversy.
Historically, three main views have received support. According to the
first, constitutional limitations determine validity on the international
plane.133 Criticism of this view emphasizes the insecurity in treaty-making
it would entail. The second view varies from the first in that only
‘notorious’ constitutional limitations are effective on the international
plane. The third view is that a state is bound irrespective of internal
limitations by consent given by an agent properly authorized according to
international law. Some advocates of this view qualify the rule in cases
where the other state is aware of the failure to comply
References
(p. 388) with internal law or where the irregularity is manifest. This
position, which involves a presumption of competence and excepts
manifest irregularity, was approved by the ILC in 1966.134 At the Vienna
Conference the draft provision was strengthened, and the result appears
in VCLT Article 46.135
(ii) Defects of authority136
The VCLT provides that if the authority of a representative to express the
consent of his state to be bound by a particular treaty has been made
subject to a specific restriction, omission to observe the restriction may
not be invoked as a ground of invalidity unless the restriction was
previously notified to the other negotiating states.
(iii) Error137
Under VCLT Article 48,138 a state may invoke an error as invalidating its
consent to a treaty if the error relates to ‘a fact or situation which was
assumed by that State to exist at the time when the treaty was concluded
and formed an essential basis of its consent to be bound by the treaty’.
However, consistent with the previous law, Article 48(2) provides that this
does not apply ‘if the State in question contributed by its own conduct to
the error or if the circumstances were such as to put that State on notice
of a possible error’.139
(iv) Fraud140
There are few helpful precedents. The VCLT provides141 that a state
which has been induced to enter into a treaty by the fraud of another
negotiating state may invoke the fraud as invalidating its consent to be
bound by the treaty. Fraudulent misrepresentation of a material fact
inducing an essential error is dealt with by the provision relating to error.
The ILC decided that corruption of representatives was not adequately
dealt with as a case of fraud142 and an appropriate provision appears as
VCLT Article 50.143
References
(p. 389) (v) Coercion
Coercion includes coercion of state representatives144 and of states
themselves.145 VCLT Article 51 provides that ‘the expression of a State’s
consent to be bound by a treaty which has been procured by the coercion
of its representative through acts or threats directed against him shall be
without legal effect’. The concept of coercion extends to blackmailing
threats and threats against the representative’s family.
As for coercion of a state, the ILC considered that Article 2(4) of the UN
Charter, together with other developments, justified the conclusion that a
treaty procured by the threat or use of force in violation of the Charter
shall be void. VCLT Article 52 so provides.146 An amendment with the
object of defining force to include any ‘economic or political pressure’ was
withdrawn: instead a declaration condemning such pressure appears in
the Final Act of the Conference.147
(vi) Conflict with a peremptory norm148
VCLT Article 53 provides that a treaty is void if at the time of its
conclusion it conflicts with a peremptory norm of general international law
(ius cogens).149 Further, a treaty becomes void if it conflicts with a
peremptory norm of general international law established after the treaty
comes into force.150 This does not have retroactive effects on the validity
of a treaty. The discussion on the issue of ius cogens proved to be one of
the ‘longest, most heated and disorganized debates’ at the Vienna
Conference.151 Views differ on whether the VCLT provisions correspond
to the existing law on the relationship between treaties and peremptory
norms;152 but the answer seems clear enough. A peremptory norm is one
from which no derogation is permitted on the part of one or
References
(p. 390) a few states: the form the attempted derogation takes must be
irrelevant. Issues raised by peremptory norms are dealt with in more
detail in chapter 27.
(B) Termination and Suspension153
VCLT Part V Section 3 deals with termination and suspension of the
operation of treaties. A treaty may of course specify the conditions of its
termination, and may provide for denunciation by the parties.154 Where a
treaty contains no provisions regarding its termination, the existence of a
right of denunciation depends on the intention of the parties, which can
be inferred from the terms of the treaty and its subject-matter, but,
according to the VCLT, the presumption is that the treaty is not subject to
denunciation or withdrawal.155 At least in certain circumstances
denunciation is conditional upon a reasonable period of notice. Some
important law-making treaties contain no denunciation clause. Treaties of
peace are not open to unilateral denunciation.
(i) War and armed conflict156
Hostile relations do not automatically terminate treaties between the
parties to a con-flict.157 Many treaties, including the UN Charter, are
intended to be no less binding in case of war, and multipartite law-making
agreements such as the Geneva Conventions of 1949 survive war or
armed conflict.158 However, in state practice many types of treaty are
regarded as at least suspended in time of war, and war conditions may
lead to termination of treaties on grounds of impossibility or fundamental
change of circumstances. In many respects the law on the subject is
uncertain. Thus it is not clear to what extent the illegality of the use or
threat of force has had effects on the right (where it may be said to exist)
to regard a treaty as suspended or terminated.159
References
(p. 391) The ILC decided to include the topic ‘effects of armed conflicts
on treaties’ in its long-term programme of work in 2000.160 A set of draft
articles with commentaries was adopted at second reading in 2011.161
(ii) Denunciation and termination by agreement
Termination or withdrawal may take place by consent of all the
parties.162 Such consent may be implied. In particular, a treaty may be
considered as terminated if all the parties conclude a later treaty which is
intended to supplant the earlier treaty or if the later treaty is incompatible
with its provisions.163 The topic of ‘desuetude’, which is probably not a
term of art, is essentially concerned with discontinuance of use of a treaty
and its implied termination by consent.164 However, it could extend to the
distinct situation of a unilateral renunciation of rights under a treaty.
Moreover, irrespective of the agreement of the parties, an ancient treaty
may become meaningless and incapable of practical application.
(iii) Material breach165
It is widely recognized that material breach by one party entitles the other
party or parties to a treaty to invoke the breach as the ground of
termination or suspension. This option by the wronged party is accepted
as a sanction for securing the observance of treaties. However,
considerable uncertainty has surrounded the precise circumstances in
which such right of unilateral abrogation may be exercised, particularly in
respect of multilateral treaties. In practice material breach has rarely
been invoked, an exception being Gabčíkovo-Nagymaros Project
(Hungary/Slovakia).166
References
(p. 392) VCLT Article 60167 deals with the matter with as much precision
as can be reasonably expected, although its formulation has attracted
some criticism.168 Paragraphs 1 and 2 set out what parties to bilateral
and multilateral treaties are entitled to do in response to a material
breach by another party. Paragraph 3 defines a material breach as a
repudiation of the treaty not sanctioned by the VCLT, or the violation of a
provision essential to the accomplishment of the object or purpose of the
treaty.169 It should be observed that the focus here is on the importance
of the provision violated, not the magnitude of the breach.170 Paragraph 4
stipulates that the first three paragraphs are without prejudice to any
provision in the treaty applicable in the event of a breach, and paragraph
5 excludes the application of the first three paragraphs to ‘provisions
relating to the protection of the human person contained in treaties of a
humanitarian character’.
A state may by its own conduct prejudice its right to terminate a treaty on
the ground of material breach.171
(iv) Supervening impossibility of performance172
The VCLT provides that a party ‘may invoke the impossibility of
performing a treaty as a ground for terminating it if the impossibility
results from the permanent disappearance or destruction of an object
indispensable for the execution of the treaty’.173 Situations envisaged
include the submergence of an island, the drying up of a river, or
destruction of a railway, by an earthquake, or other disaster. The effect of
impossibility is not automatic, and a party must invoke the ground for
termination. Impossibility of performance may not be invoked by a party
to the relevant treaty when it results from that party’s own breach of an
obligation flowing from the treaty.174
(v) Fundamental change of circumstances175
The principles by which fundamental change of circumstances may be
invoked as a ground for terminating or withdrawing from a treaty are
expressed in VCLT Article 62.
References
(p. 393) An example of a fundamental change would be the case where a
party to a military and political alliance, involving exchange of military
intelligence and information, has a change of government incompatible
with the basis of alliance. The provision reflects the doctrine of rebus sic
stantibus, which involves the implication of a term that the obligations of
an agreement would end if there had been a change of circumstances.
As in municipal systems, so in international law it is recognized that
changes frustrating the object of an agreement, even if not amounting to
actual impossibility, may justify its termination. Some jurists dislike the
doctrine, regarding it as a source of insecurity of obligations, more
especially in the absence of a system of compulsory jurisdiction. But it
has generally been applied very conservatively, as it was in Free
Zones.176 Further the VCLT excludes boundary treaties from the
operation of the principle in order to avoid an obvious source of threats to
the peace.
In Fisheries Jurisdiction (UK v Iceland) the International Court accepted
VCLT Article 62 as a statement of customary law but decided that the
dangers to Icelandic interests resulting from new fishing techniques
‘cannot constitute a fundamental change with respect to the lapse or
subsistence’ of the jurisdictional clause in a bilateral
177
agreement.177 In Gabčíkovo-Nagymaros, Hungary specified profound
changes of a political character, the Project’s diminishing economic
viability, the progress of environmental knowledge, and the development
of new norms and prescriptions of international environmental law, as
grounds entitling it to invoke the fundamental change of circumstances
principle. The Court recalled its findings in Fisheries Jurisdiction and
rejected the Hungarian argument, holding that:
The changed circumstances advanced by Hungary are, in the Court’s view, not of such a
nature, either individually or collectively, that their effect would radically transform the
extent of the obligations still to be performed in order to accomplish the Project. A
fundamental change of circumstances must have been unforeseen; the existence of the
circumstances at the time of the Treaty’s conclusion must have constituted an essential
basis of the consent of the parties to be bound by the Treaty.178
Referring to the language of VCLT Article 62, the Court concluded that
‘the stability of treaty relations requires that the plea of fundamental
change of circumstances be applied only in exceptional cases’.179 In
contrast to this generally accepted position, the Court of Justice of the
European Communities applied a relaxed interpretation of
the rebus doctrine to uphold the suspension of the EC–Yugoslavia
Cooperation Agreement in the case of Racke v Hauptzollamt Mainz.180 It
conceded that the
References
(p. 394) Commission could have continued to grant tariff concessions
after the outbreak of hostilities, but noted that impossibility of
performance was not required and that there was ‘no point’ in continuing
to grant preferences in circumstances where Yugoslavia was breaking
up.181
Treaties may also be affected when one state succeeds wholly or in part
to the legal personality and territory of another. The conditions under
which the treaties of the latter survive depend on many factors, including
the precise form and origin of the ‘succession’ and the type of treaty
concerned.182
(C) Procedure and Consequences183
The consequences of invalidity, termination, and suspension will depend
on the grounds relied upon. Certain grounds of invalidity must be invoked
by a party184 and so the treaties concerned are not void but voidable.
These grounds are: incompetence under internal law, restrictions on
authority of representative, error, fraud, and corruption of a
representative. The same is true of certain grounds of termination—
material breach, impossibility, and fundamental change of circumstances.
On the other hand a treaty is void in case of coercion of a state
(invalidity), and conflict with an existing or emergent peremptory norm
(invalidity or termination). Consent to be bound by a treaty procured by
coercion of the representative of a state ‘shall be without any legal effect’
(Article 51, invalidity). The rules governing separability of treaty
provisions (Article 44), that is, the severance of particular clauses
affected by grounds for invalidating or terminating a treaty, do not apply to
the cases of coercion of a representative, coercion of a state, or conflict
with an existing peremptory norm.185Articles 69 to 72 deal with the
consequences of invalidity, termination, or suspension.
References
Footnotes:
1
Harvard Research (1935) 29 AJIL Supp; McNair, The Law of
Treaties (1961); Jennings (1967) 121 Hague Recueil 527; Elias, The
Modern Law of Treaties (1974); Sinclair, The Vienna Convention on the
Law of Treaties (2nd edn, 1984); Rosenne, Developments in the Law of
Treaties, 1945–1986 (1989); Thirlway (1991) 62 BY 2; Thirlway (1992)
63 BY 1; Reuter, Introduction to the Law of Treaties (2nd edn,
1995); Aust, Modern Treaty Law and Practice (2nd edn, 2007);
Villiger, Commentary on the 1969 Vienna Convention on the Law of
Treaties (2009); Villiger (2009) 344 Hague Recueil 9; Corten & Klein
(eds), The Vienna Conventions on the Law of Treaties (2011).
2
In addition to its work on interstate treaties, the ILC produced draft
articles on treaties of international organizations, which became VCLT II,
21 March 1986, 25 ILM 543 (not yet in force). In 2011 it completed an
enormous Guide to Practice on Reservations to Treaties: A/CN.4/L.779,
19 May 2011. It is working on temporal aspects of
treaties: www.untreaty.un.org/ilc/summaries/1_11.htm.
3
The principal items are: Reports by Brierly, ILC Ybk 1950/II, 222;
ILC Ybk 1951/II, 1; ILC Ybk 1952/ II, 50; Lauterpacht, ILC Ybk 1953/II,
90; ILC Ybk 1954/II, 123; Fitzmaurice, ILC Ybk 1956/II, 104;
ILC Ybk 1957/II, 16; ILC Ybk 1958/II, 20; ILC Ybk 1960/II, 69; Waldock,
ILC Ybk 1962/II, 27; ILC Ybk 1963/II, 36; ILC Ybk 1964/II, 4;
ILC Ybk 1965/II, 3; ILC Ybk 1966/II, 1; ILC Final Report and Draft
Articles, ILC Ybk 1966/II, 172.
4
22 May 1969, 1155 UNTS 331. See Kearney & Dalton (1970)
64 AJIL 495.
5
Villiger (2009) 24–7.
6
Under Art 4, VCLT only applies to treaties concluded between states all
of which at that time were already parties to VCLT. Since only 111 states
are parties, this means in effect that VCLT does not apply to major
multilateral treaties. In practice it is applied as customary international
law in any event.
7
Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), ICJ Reports 1971 p 16, 47. Also: Appeal relating
to the Jurisdiction of the ICAO Council (India v Pakistan), ICJ Reports
1972 p 46, 67; Fisheries Jurisdiction (UK v Iceland), ICJ Reports 1973 p
3, 18; Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia/
Malaysia), ICJ Reports 2002 p 625, 645–6; Iran–US, Case No
A/18 (1984) 75 ILR 175, 187–8; Lithgow and Others (Shipbuilding
Nationalization) (1986) 75 ILR 438, 483–4; Restrictions to the Death
Penalty (1983) 70 ILR 449, 465–71; Asian Agricultural Products Ltd v
Republic of Sri Lanka (1990) 106 ILR 416, 437–46; Ethyl Corporation v
Government of Canada (1998) 122 ILR 250, 278–80; Pope and Talbot v
Canada (2001) 122 ILR 293, 328.
8
E.g. R v Minister of Agriculture, ex parte SP Anastasiou (Pissouri)
Ltd (1994) 100 ILR 257, 298–9; Opel Austria v Council of the EU (1997)
113 ILR 295, 323–4; Racke v Hauptzollamt Mainz (1998) 117 ILR 399,
437–43; Case C-268/99 Jany v Staatssecretaris van Justitie [2001] ECR
I-8615, para 35; Joined Cases C-402/05 P and C-415/05 P Kadi & Al
Barakaat International Foundation v Council & Commission [2008] ECR I06351, §291. Further: Kuijper (1998) 25 Legal Issues of Economic
Integration 1; Klabbers (1999) 30 NYIL 45; Verwey, The European
Community and the European Union and the International Law of
Treaties (2004).
9
E.g. US—Gasoline, WTO Doc WT/DS2/AB/R, 29 April 1996, 16–
17; US—Gambling, WTO Doc WT/ DS285/AB/R, 7 April 2005, 51.
Further: van Damme, Treaty Interpretation by the WTO Appellate
Body (2009).
10
79–1 (France): 19.
11
VCLT II; Gaja (1987) 58 BY 253; Zemanek, in Hafner et al (eds), Liber
Amicorum Ignaz Seidl-Hohenveldern (1998) 843; Menon, Law of Treaties
between States and International Organizations (1992); Brölmann, in
Klabbers & Lefeber (eds), Essays on the Law of Treaties (1998) 121;
Footer, in Orakhelashvili & Williams (eds), 40 Years of the Vienna
Convention on the Law of Treaties (2010) 183; Tomuschat, in Cannizzaro
(ed), The Law of Treaties Beyond the Vienna Convention (2011) 206.
12
Vienna Convention on Succession of States in Respect of Treaties, 22
August 1978, 1946 UNTS 3; also chapter 19.
13
See ILC website, www.untreaty.un.org/ilc/summaries/1_10.htm.
14
ILC Ybk 1962/II, 161.
15
On the concept of a treaty: Widdows (1979) 50 BY 117; Virally, in Diez
et al (eds), Festschrift für Rudolf Bindschedler (1980) 159; Thirlway
(1991) 62 BY 1, 4–15; Klabbers, The Concept of Treaty in International
Law (1996); Fitzmaurice (2002) 73 BY 141.
16
The conclusion of treaties in simplified form is increasingly common.
Many treaties are made by an exchange of notes, the adoption of agreed
minutes, etc. See ILC Ybk 1966/II, 188; Aust (2nd edn, 2007) 102; Corten
& Klein, Les Conventions de Vienne Sur le Droit des Traités (2006) 343;
Villiger, Commentary (2009) 181. Also: Aegean Sea Continental Shelf
(Greece v Turkey), ICJ Reports 1978 p 3, 38–44; Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v US), ICJ
Reports 1986 p 14, 130–2; Maritime Delimitation and Territorial
Questions between Qatar and Bahrain (Qatar v Bahrain), Jurisdiction and
Admissibility, ICJ Reports 1994 p 112, 120–2.
17
See Mann (1957) 33 BY 20; Mann (1959) 35 BY 34; Fitzmaurice
(2002) 73 BY 141, 168; cf Diverted Cargoes (1955) 12 RIAA 53, 70.
18
McNair (1961) 739–54. On the special role of multilateral treaties:
Lachs (1957) 92 Hague Recueil 229, 233–41; Crawford (2006) 319
Hague Recueil 325, 349–420.
19
McNair (1961) 743–9.
20
VCLT, Art 62(2) (fundamental change of circumstances rule
inapplicable to boundary treaties).
21
ILC Ybk 1966/II, 219.
22
Dehaussy, in Recueil d’études en hommage à Guggenheim (1968)
305; Gardiner, Treaty Interpretation (2008) 142.
23
For the history: Lauterpacht, Private Law Sources and Analogies of
International Law (1927) 156–9, §70.
24
ILC Ybk 1962/II, 161.
25
Draft Articles, I, ILC Ybk 1962/II, 167–9 (Art 8); Waldock (1962) 106
Hague Recueil 1, 53–8.
26
ILC Ybk 1966/II, 200; UN Secretariat Working Paper, A/CN.4/245, 23
April 1971, 131–4. Also: Lukashuk (1972) 135 Hague Recueil 231.
27
Generally: Aust (1986) 35 ICLQ 787.
28
Temple of Preah Vihear (Cambodia v Thailand), Preliminary
Objections, ICJ Reports 1961 p 17, 31–2.
29
Qatar v Bahrain, Jurisdiction and Admissibility, ICJ Reports 1994 p
112, 120–2; Aust (2nd edn, 2007) 16–31.
30
ILC Ybk 1966/II, 190–1 (Art 3).
31
Aust (2nd edn, 2007) 32–57; E Lauterpacht, in Flume (ed), Festschrift
für FA Mann (1977) 38; Thirlway (1991) 63 BY 1, 18–19.
32
33
Aust (2nd edn, 2007) 16–31, esp 23–7.
33
VCLT, Arts 7–11; Waldock, ILC Ybk 1962/II, 38ff; ILC Ybk 1966/II, 189,
193–7; Watts (1994) 247 Hague Recueil 10, 19; Sabel, Procedure at
International Conferences(2nd edn, 2006) 58–67. Further: Armed
Activities on the Territory of the Congo (New Application: 2002) (DRC v
Rwanda), Jurisdiction and Admissibility, ICJ Reports 2006 p 6, 27–9.
34
Heads of state, heads of government, and foreign ministers are also
not required to furnish evidence of their authority: VCLT, Art 7(2). Further:
Aust (2nd edn, 2007) 75–83.
35
ICJ Reports 2002 p 303, 430.
36
Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia),
Preliminary Objections, ICJ Reports 1996 p 595, 661–2.
37
VCLT, Art 10.
38
ILC Ybk 1962/II, 171. But cf Lauterpacht, ILC Ybk 1953/II, 108–12;
Fitzmaurice, ILC Ybk 1956/II, 112–13, 121–2. Also: Rosenne (2000)
4 EPIL 932; Kolb (2004) 51 NILR 185; Corten & Klein (2006) 343–538;
Aust (2nd edn, 2007) 94–102; Villiger, Commentary (2009) 181–228.
39
VCLT, Art 18; Certain German Interests in Polish Upper Silesia (1926)
PCIJ Ser A No 7, 30; Aust (2nd edn, 2007) 116–21; Palchetti, in
Cannizzaro (2011) 25. Note Art 18(a): if a state that has signed a treaty
makes it clear that it does not intend to ratify it, it is released from any
obligations under Art 18 and its signature has no legal effect. The US
relied on this to ‘unsign’ the ICC Statute (17 July 1998, 2187 UNTS 3) in
May 2002, by lodging a note with the UN to the effect that it did not intend
to become a party: Swaine (2003) 55 Stanford LR 2061.
40
VCLT, Art 14; for other means of expressing consent to be bound:
VCLT, Arts 11–17.
41
Cameroon v Nigeria, ICJ Reports 2002 p 303, 429–30.
42
Draft Articles, I, ILC Ybk 1962/II, 161, 171–3 (Arts 1(1)(d), 12);
Waldock, ILC Ybk 1962/II, 48–53. Also: ILC Final Report and Draft
Articles, ILC Ybk 1966/II, 187–9, 195–9, 201 (Arts 2(1)(b), 10–11, 13).
43
44
McNair (1961) 153–5.
44
VCLT, Arts 11, 13; Fitzmaurice, in Klabbers & Lefeber (1998)
59; Fitzmaurice & Hollis (2005) 23 Berkeley JIL 137.
45
VCLT, Art 24(2). The International Court has described Art 24 as
declaratory of the general rule: Cameroon v Nigeria, Preliminary
Objections, ICJ Reports 1998 p 275, 293–4; Right of Passage over
Indian Territory (Portugal v India), Preliminary Objections, ICJ Reports
1957 p 125, 145–7.
46
VCLT, Arts 76–7; Rosenne (1967) 61 AJIL 923; Rosenne (1970)
64 AJIL 838.
47
The first of Wilson’s Fourteen Points Address, delivered at a joint
session of Congress on 8 January 1918, called for ‘open covenants of
peace, openly arrived at’: US Department of State, Papers Relating to the
Foreign Relations of the United States 1918—Supplement 1, The World
War (1933) 12, 15; Schwietzke, ‘Fourteen Points of Wilson (1918)’
(2007) MPEPIL.
48
If an agreement is between international legal persons it is registrable
even if governed by a particular municipal law; cf Higgins (1963) 329.
49
South West Africa (Ethiopia v South Africa; Liberia v South
Africa), Preliminary Objections, ICJ Reports 1962 p 319, 359–60 (Judge
Bustamante), 420–2 (Judge Jessup); cf 503 (Judges Spender &
Fitzmaurice, joint diss).
50
VCLT, Arts 19–23; further: Lauterpacht, ILC Ybk 1953/II, 123–
36; Fitzmaurice (1953) 2 ICLQ 1; McNair (1961) ch 4; Bishop (1961) 103
Hague Recueil 249; Draft Articles, I, ILC Ybk 1962/II, 161, 163, 175–82
(Arts 1(1)(f), 18–22); Anderson (1964) 13 ICLQ450; Waldock,
ILC Ybk 1966/II, 27, 60–8; ILC Final Report and Draft Articles,
ILC Ybk 1966/II, 189–90, 202–9 (Arts 2(1)(d), 16–20); Jennings (1967)
121 Hague Recueil 534; Bowett (1976–77) 48 BY 67; Sinclair (2nd edn,
1984) 51–82; Greig (1995) 16 AYIL 21; Villiger (2009) 344
Hague Recueil 9, 77–112; Pellet & Müller, in Cannizzaro (2011) 37;
Corten & Klein (2011) 405–627. Further: reports of the Special
Rapporteur on Reservations to Treaties (Pellet), available
at www.untreaty.un.org/ilc/summaries/1_8.htm and ILC Report 2011,
GAOR, 66th Session, Supp No 10, A/66/10, 12–49.
51
51
E.g. the Swiss declaration regarding ECHR, 4 November 1950, ETS
5, Art 6(1): Belilos v Switzerland (1988) 88 ILR 635, 636. On the difficulty
in some cases of distinguishing interpretative declarations from
reservations: ibid, 663–6.
52
On this contractual conception of treaties, a reservation would
constitute a counter-offer requiring a new acceptance, failing which the
state making the counter-offer would not become a party to the treaty.
See Reservations to the Convention on the Prevention and Punishment
of the Crime of Genocide, ICJ Reports 1951 p 15, 21, 24.
53
Ibid, 29.
54
ILC Ybk 1951/II, 128–31.
55
GA Res 598(VI), 12 January 1952.
56
GA Res 1452A(XIV), 7 December 1959.
57
Draft Articles, I, ILC Ybk 1962/II, 175–81 (Arts 18(1)(d) and 20(2)).
The Commission rejected a ‘collegiate’ system which would require
acceptance of the reservation by a given proportion of the other parties:
cf Anderson (1964) 13 ICLQ 450.
58
Special provisions concerning the making of reservations may present
difficult problems of interpretation. See UK-French Continental
Shelf (1977) 54 ILR 6, 41–57; Bowett (1976–77) 48 BY 67.
59
Waldock, ILC Ybk 1962/II, 65–6; ILC Ybk 1966/II, 205; Sinclair (1970)
19 ICLQ 53.
60
E.g. Bowett (1976–77) 48 BY 67, 70–5; Redgwell (1993) 64 BY 245.
61
See Chinkin et al (Gardner ed), Human Rights as General Norms and
a State’s Right to Opt Out (1997).
62
Belilos v Switzerland (1988) 88 ILR 635. Further: Cameron & Horn
(1990) 33 GYIL 69; Marks (1990) 39 ICLQ 300.
63
Loizidou v Turkey, Preliminary Objections (1995) 103 ILR 622. For a
similar approach under the Inter-American system: Radilla-Pacheco v
Mexico, IACtHR C/209, 23 November 2009, §§299–312.
64
CCPR, General Comment 24 (1994) CCPR/C/21/Rev.1/Add.6. The
UK government was critical: (1995) 66 BY 655. Also: Hampson,
E/CN.4/Sub.2/1999/28, 28 June 1999; Simma, in Hafner et al (1998)
659; Helfer (2002) 102 Col LR 1832. Further: Armed Activities (2002
Application) (DRC v Rwanda), Jurisdiction and Admissibility, ICJ Reports
2006 p 6, 69–70 (Judges Higgins, Kooijmans, El Araby, Owada &
Simma).
65
ILC Report 2011, GAOR, 66th Session, Supp No 10, A/66/10, 12–51
and Add.1.
66
A/CN.4/647/Add.1, 6 June 2011, 15–20.
67
A/66/10/Add.1, commentary to Guideline 4.5.2.
68
Ibid, Guideline 4.5.3, §2.
69
Ibid, Guideline 4.5.3, §1.
70
Ibid, commentary to Guideline 4.5.3.
71
VCLT, Art 42. Also: Draft Articles, II, ILC Ybk 1963/II, 189–90 (Art 30);
ILC Final Report and Draft Articles, ILC Ybk 1966/II, 236–7 (Art 39).
72
VCLT, Art 26; ILC Final Report and Draft Articles, ILC Ybk 1966/II,
210–11 (Art 23); Villiger, Commentary (2009) 361–8; Corten & Klein
(2011) 659–87.
73
And this despite General de Gaulle’s maxim, ‘Treaties are like roses
and young girls. They last while they last’: Time, 12 July 1963.
74
VLCT, Art 27; Villiger, Commentary (2009) 369–75; Corten & Klein
(2011) 688–717.
75
VCLT, Art 28; Villiger, Commentary (2009) 379–86; Corten & Klein
(2011) 718–30.
76
VCLT, Art 29; Villiger, Commentary (2009) 387–94; Corten & Klein
(2011) 731–63.
77
Generally: Draft Articles, III, ILC Ybk 1964/II, 185–92 (Art 63); ILC
Final Report and Draft Articles, ILC Ybk 1966/II, 214–17 (Art 26); Jenks
(1953) 30 BY 401; Sciso (1987) 38 ÖZfÖR 161; Binder, Treaty Conflict
and Political Contradiction (1988); Kohen (2000) 106 RGDIP 577; SadatAkhavi, Methods of Resolving Conflicts between Treaties (2003);
Villiger, Commentary (2009) 395–411; Klabbers, in Cannizzaro (2011)
192.
78
78
TFEU (2008) OJEU C 115/47.
79
Al Jedda v UK [2011] ECtHR 27021/08, §§105–9.
80
McNair (1961) chs 20–9; Fitzmaurice (1971) 65 AJIL 358; Yasseen
(1976) 151 Hague Recueil 1; Thirlway (1991) 62 BY 1, 16–75; Thirlway
(2007) 77 BY 1; Torres Bernárdez, in Hafner et al (1998) 721; Berman
(2004) 29 Yale JIL 315; Kolb, Interprétation et creation du droit
international (2006); French (2006) 55 ICLQ 281; Linderfalk, On the
Interpretation of Treaties (2007); Gardiner (2008); Orakhelashvili, The
Interpretation of Acts and Rules in Public International
Law (2008); Villiger (2009) 344 Hague Recueil 9, 113–34; van Damme
(2009); Villiger, in Cannizzaro (2011) 105; Corten & Klein (2011) 804–86.
81
Certain Expenses of the United Nations (Article 17, paragraph 2, of
the Charter), ICJ Reports 1962 p 151, 163. Also: Navigational and
Related Rights (Costa Rica v Nicaragua), ICJ Reports 2009 p 213, 237.
82
For interpretation in the World Court pre-VCLT: Fitzmaurice (1951)
28 BY 1.
83
On interpretation of treaties authenticated in two or more languages:
Art 33; James Buchanan and Co Ltd v Babco(UK) Ltd[1977] AC
141; Young Loan(1980)59 ILR 494; Nicaragua, Jurisdiction and
Admissibility, ICJ Reports 1984 p 392, 522–3 (Judge Ago), 537–9 (Judge
Jennings), 575–6 (Judge Schwebel, diss); LaGrand (Germany v US), ICJ
Reports 2001 p 466, 502.
84
As the International Court put it in 1950, ‘[i]f the relevant words in their
natural and ordinary meaning make sense in their context, that is an end
of the matter’: Competence of the General Assembly for the Admission of
a State to the United Nations, ICJ Reports 1950 p 4, 8. Also: Territorial
Dispute (Libya/Chad), ICJ Reports 1994 p 6, 21–2; Qatar v Bahrain,
Jurisdiction and Admissibility, ICJ Reports 1995 p 6, 18; Pulau
Ligitan/Sipadan, ICJ Reports 2002 p 625, 645; Genocide (Bosnia and
Herzegovina v Serbia and Montenegro), ICJ Reports 2007 p 43, 109–10.
Further: Fitzmaurice (1951) 28 BY 1, 1–28; Fitzmaurice (1957)
33 BY 203, 203–38; Thirlway (1991) 62 BY 1, 18–37; Gardiner (2008)
13–17.
85
85
E.g. Territorial Jurisdiction of the International Commission of the
River Oder (1929) PCIJ Ser A No 23, 261. On restrictive interpretation
generally: Lauterpacht (1949) 26 BY 48; Crook (1989) 83 AJIL 278, 304–
7; Orakhelashvili (2003) 14 EJIL 529; Crema (2010) 21 EJIL 681.
86
E.g. Navigational Rights, ICJ Reports 2009 p 213, 237–8.
87
Generally: Waldock, in Mélanges Reuter, 535; Klabbers (2001)
34 Vand JTL 283; Jonas & Saunders (2010) 43 Vand JTL 565, 581.
88
ICJ Reports 2009 p 213, 343.
89
International Status of South West Africa, ICJ Reports 1950 p
128; South West Africa, Preliminary Objections, ICJ Reports 1962 p
319; Namibia, ICJ Reports 1971 p 16, 47–50. Also: Certain Expenses,
ICJ Reports 1962 p 151, 198–215 (Judge Fitzmaurice).
90
See Golder v UK (1975) 57 ILR 200, 245–6. Also: Letsas, A Theory of
Interpretation of the European Convention on Human Rights (2008);
Gros-Espiell, in Nieto Navia, La Corte y el Sistema Interamericanos de
Derechos Humanos (1994) 223.
91
ILC Ybk 1966/II, 219.
92
ILC Ybk 1966/II, 218–19.
93
E.g. Arbitral Award of 31July 1989(Guinea-Bissau v Senegal), ICJ
Reports 1991 p 53, 70; Pulau Ligitan/Sipadan, ICJ Reports 2002 p 625,
645; Avena and Other Mexican Nationals (Mexico v US), ICJ Reports
2004 p 12, 48; Genocide (Bosnia and Herzegovina v Serbia and
Montenegro), ICJ Reports 2007 p 43, 109–10.
94
95
(1925) PCIJ Ser B No 11, 37.
VCLT, Art 31(2); further: Competence of the ILO to Regulate the
Conditions of the Labour of Persons Employed in Agriculture (1922) PCIJ
Ser B Nos 2 and 3, 23; Free Zones of Upper Savoy and the District of
Gex (1932) Ser A/B No 46, 140; South West Africa, Preliminary
Objections, ICJ Reports 1962 p 319, 335; Young Loan (1980) 59 ILR
494, 534–40, 556–8; Arbitral Award of 31 July 1989, ICJ Reports 1991 p
53. Also: Bernhardt (1967) 27 ZaöRV 491, 498; Gardiner (2008) 165–6.
96
96
Rights of Nationals of the United States of America in Morocco
(France v US), ICJ Reports 1952 p 176, 183–4, 197–8; Pulau
Ligitan/Sipadan, ICJ Reports 2002 p 625, 645–6, 651–3. See also
Sur, L’Interpretation en droit international public (1974) 227–31; Reuter, in
Dinstein & Tabory (eds), International Law at a Time of Perplexity (1989)
623, 628; Jennings, in Bedjaoui (ed), International Law Achievements
and Prospects (1991) 135, 145; Buffard & Zemanek (1998) 3 Austrian
RIEL 311, 319; Linderfalk (2007) 205.
97
Grisbadarna (1909) 11 RIAA 159; Namibia, ICJ Reports 1971 p 16,
31.
98
US Nationals in Morocco, ICJ Reports 1952 p 176, 189.
99
For critical comment on the concept of natural or plain meaning:
Lauterpacht, Development (1958) 52–60.
100
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports
1997 p 7, 35–46.
101
Aust (2nd edn, 2007) 238–41.
102
ILC Ybk 1966/II, 221; Air Transport Services Agreement (US v
France) (1964) 38 ILR 182, 245–8, 256–8; Young Loan (1980) 59 ILR
494, 541–3; ibid, 573–4 (Robinson, Bathurst & Monguilan, diss). Also:
Fitzmaurice (1951) 28 BY 1, 20–1; Fitzmaurice (1957) 33 BY 203, 223–
5 (commending subsequent practice for its ‘superior reliability’ as an
indication of meaning); Aust (2nd edn, 2007) 241–3;
Villiger, Commentary (2009) 431–2.
103
Admissions, ICJ Reports 1950 p 4, 9; Constitution of the Maritime
Safety Committee of the Inter-Governmental Maritime Consultative
Organization, ICJ Reports 1960 p 150, 167–71; Certain Expenses, ICJ
Reports 1962 p 151. Further: Engel (1967) 16 ICLQ 865; Amerasinghe
(1994) 65 BY 175.
104
Certain Expenses, ICJ Reports 1962 p 151, 187 (Judge Spender);
201–3 (Judge Fitzmaurice); Namibia, ICJ Reports 1971 p 16, 52–3.
105
Aust (2nd edn, 2007) 243–4.
106
Oil Platforms (Iran v US), ICJ Reports 2003 p 161, 182–3.
107
107
In her separate opinion Judge Higgins accused the majority of
invoking the concept of treaty interpretation to displace the applicable
law, with the result that the text of the treaty itself was ignored: ibid, 237–
8 (Judge Higgins).
108
On fragmentation: e.g. Simma (2004) 25 Mich JIL 845; Pauwelyn
(2004) 25 Mich JIL 903; Fragmentation of International Law: Difficulties
Arising From The Diversification and Expansion of International Law,
Report of the Study Group of the ILC, 58th Session, A/CN.4/L.682, 13
April 2006; Buffard, in Buffard et al (eds), International Law between
Universalism and Fragmentation (2008) 13.
109
McLachlan (2005) 54 ICLQ 279.
110
E.g. Dupuy (2002) 297 Hague Recueil 9; Higgins (2003) 52 ICLQ 1;
Pauwelyn, Conflict of Norms in Public International Law (2003); Simma &
Pulkoswki (2006) 17 EJIL 483; Higgins (2006) 55 ICLQ 791;
Vanneste, General International Law before Human Rights
Courts (2010).
111
French (2006) 55 ICLQ 281.
112
ILC Ybk 1966/II, 222–3; Schwebel, in Makarczyk (ed), Theory of
International Law at the Threshold of the21stCentury(1996)
541; Gardiner (1997) 46 ICLQ 643; Klabbers (2003) 50 NILR267; Sbolci,
in Cannizzaro (2011) 145. See also Genocide (Bosnia and Herzegovina v
Serbia), ICJ Reports 2007 p 43, 109–10.
113
Conditions of Admission of a State to Membership in the United
Nations (Article 4 of the Charter), ICJ Reports 1948 p 57, 63; (Second)
Admissions, ICJ Reports 1950 p 4, 8; Fitzmaurice (1951) 28 BY 1, 10–
13; (1957) 33 BY 203, 215–20.
114
See Convention of 1919concerning the Work of Women at
Night (1932) PCIJ Ser A/B No 50, 380; Libya/ Chad, ICJ Reports 1994 p
6, 27–8. See also Banković v Belgium (2001) 123 ILR 94, 110–11.
115
For an interpretation that constituted a manifest inconsistency
between the text of the treaty and its preparatory work: González(‘Cotton
Field’) v Mexico, IACtHR, C/205, 16 November 2009, §73: ‘inasmuch as
it relates to a subsidiary method of interpretation, the preparatory works
are completely insufficient to provide solid grounds to reject the
interpretation made of Article 12 of the Convention of Belém do Pará.’
116
Differing thus from River Oder (1929) PCIJ Ser A No 23.
Further: Sinclair (1963) 12 ICLQ 512; Arbitral Commission on Property,
etc, in Germany (1966) 29 ILR 442, 460.
117
ILC Ybk 1966/II, 219–20.
118
VCLT, Arts 34–8; Draft Articles, III, ILC Ybk 1964/II, 180–5 (Arts 58–
62); ILC Final Report and Draft Articles, ILC Ybk 1966/II, 226–31 (Arts
30–4); Lauterpacht, Development (1958) 306–13; Sinclair (2nd edn,
1984) 98–106; Chinkin, Third Parties in International Law (1993) 25–114;
Tomuschat (1993) 241 Hague Recueil 195; Villiger, Commentary (2009)
465–504; Corten & Klein (2011) 887–960.
119
See O’Keefe (2010) Cam RIA 1, 9.
120
ICC Statute, 17 July 1998, 2187 UNTS 3 (currently 119 parties). For
analysis of US arguments about the ‘third-party effect’ of the ICC Statute,
see O’Keefe (2010) Cam RIA 1.
121
See McNair (1961) 310. Cf Vienna Convention on the Succession of
States in Respect of Treaties, Arts 11, 12; Gabčíkovo-Nagymaros, ICJ
Reports 1997 p 7, 70–3; Klabbers (1998) 11 LJIL 345, 352–5.
122
VCLT, Art 38; ILC Final Report and Draft Articles, ILC Ybk 1966/II,
230–1 (Art 34).
123
ILC Ybk 1966/II, 227.
124
The Law of the United Nations (1951) 106–10; cf Bindschedler
(1963) 108 Hague Recueil 307, 403–7. Also: McNair (1961) 216–18.
125
126
Ibid, 265–8.
VCLT, Arts 39–41; Draft Articles, III, ILC Ybk 1964/II, 193–9 (Arts 65–
8); ILC Final Report and Draft Articles, ILC Ybk 1966/II, 231–6 (Arts 35–
8); Handbook of Final Clauses, ST/LEG/6, 130–52; Hoyt, The Unanimity
Rule in the Revision of Treaties (1959); Zacklin, The Amendment of the
Constitutive Instruments of the United Nations and Specialized
Agencies (1968, repr 2005); Kontou, The Termination and Revision of
Treaties in Light of New Customary International Law (1994); Bowman
(1995) 44 ICLQ 540; Frowein, in Hafner et al (1998) 201;
Villiger, Commentary (2009) 507–38; Corten & Klein (2011) 961–1011.
127
ILC Ybk 1966/II, 236 (Art 38).
128
GAOR, 1st Session, 207–15. Also: Kearney & Dalton (1970)
64 AJIL 495, 525.
129
McNair (1961) chs 30–5; Elias (1971) 134 Hague Recueil 333;
Haraszti, Some Fundamental Problems of the Law of Treaties (1973)
229–425; Rozakis (1974) 16 AdV 150; Jiménez de Aréchaga (1978) 159
Hague Recueil 1, 59–85; Ruda, in Dinstein & Tabory (1989) 61; Conforti
& Labella (1990) 44 EJIL 44; Thirlway(1992) 63 BY 63; Corten & Klein
(2006) 1593–2587; Villiger, Commentary (2009) 541–798; Corten & Klein
(2011) 1015–642.
130
On the relationship between the law of treaties and the law of state
responsibility generally: Dupuy (1997) 43 AFDI 7; Lefeber (1998)
11 LJIL 609; Crawford & Olleson (2000) 21 AYIL 55; Simma & Pulkowski
(2006) 17 EJIL 483; Verhoeven, in Crawford, Pellet & Olleson (eds), The
Law of International Responsibility (2010) 105.
131
McNair (1961) 206–36; Aust (2nd edn, 2007) 312–23; Corten & Klein
(2011) 1090–235.
132
See de Visscher, De la Conclusion des traités internationaux (1943)
219–87; Lauterpacht, ILC Ybk 1953/II, 141–6; McNair (1961) ch 3;
Waldock, ILC Ybk 1963/II, 41–6; ILC Ybk 1963/II, 190–3; ILC Final
Report and Draft Articles, ILC Ybk 1966/II, 240–2; de Visscher (1972)
136 Hague Recueil 1, 94–8; Meron (1978) 49 BY 175;
Villiger, Commentary (2009) 583–94.
133
This was the position of the ILC in 1951: ILC Ybk 1951/II, 73.
134
ILC Ybk 1966/II, 240–2.
135
Cameroon v Nigeria, ICJ Reports 2002 p 303, 430.
136
VCLT, Art 47. See Draft Articles, II, ILC Ybk 1963/II, 193; Waldock,
ILC Ybk 1963/II, 46–7; ILC Final Report and Draft Articles,
ILC Ybk 1966/II, 242–3 (Art 44); Villiger, Commentary (2009) 595–602.
Further: Phillips Petroleum Co, Iran v Iran, National Iranian Oil Co (1982)
70 ILR 483, 486; Amoco Iran Oil Co v Iran (1982) 70 ILR 490, 492.
137
137
Lauterpacht, ILC Ybk 1953/II, 153; Fitzmaurice (1953) 2 ICLQ 25,
35–7; Waldock, ILC Ybk 1963/II, 48–50; Oraison, L’Erreur dans les
traités (1972); Thirlway (1992) 63 BY 1, 22–8;
Villiger, Commentary (2009) 603–12.
138
Also: ILC Ybk 1966/II, 243–4.
139
Temple, ICJ Reports 1962 p 6, 26–7; ibid, 57–9 (Judge Fitzmaurice).
140
Lauterpacht, ILC Ybk 1953/II, 152; Fitzmaurice, ILC Ybk 1958/II, 25,
37; Waldock, ILC Ybk 1963/II, 47–8; Oraison (1975) 75 RGDIP 617;
Villiger, Commentary (2009) 613–22.
141
VCLT, Art 49. See ILC Final Report and Draft Articles,
ILC Ybk 1966/II, 244–5.
142
ILC Ybk 1966/II, 245.
143
Villiger, Commentary (2009) 621–8; Corten & Klein (2011) 1169–78.
144
Fitzmaurice, ILC Ybk 1958/II, 26, 38; Waldock, ILC Ybk 1963/II, 36,
50; ILC Final Report and Draft Articles, ILC Ybk 1966/II, 245–6 (Art
48); de Jong (1984) 15 NYIL 209; Villiger, Commentary (2009) 629–37.
145
Draft Articles, II, ILC Ybk 1963/II, 197–8 (Art 36); Waldock,
ILC Ybk 1963/II, 51–2; Lauterpacht, ILC Ybk 1953/II, 147–52; McNair
(1961) 206–11; Brownlie, Use of Force (1963) 404–6; Fitzmaurice,
ILC Ybk 1957/II, 32, 56–7; Fitzmaurice, ILC Ybk 1958/II, 26, 38–9; de
Jong (1984) 15 NYIL 209; Caflisch (1992) 35 GYIL 52. Also: Fisheries
Jurisdiction (UK v Iceland), Jurisdiction, ICJ Reports 1973 p 3,
14; Thirlway (1992) 63 BY 1, 28–31.
146
Also: ILC Final Report and Draft Articles, ILC Ybk 1966/II, 246–7 (Art
49); Kearney & Dalton (1970) 64 AJIL 495, 532; de Jong (1984)
15 NYIL 209; Villiger, Commentary (2009) 638–50; Corten & Klein (2011)
1201–23.
147
148
A/CONF.39/26, 23 May 1969, 285.
De Visscher (1971) 75 RGDIP 5; Gaja (1981) 172
Hague Recueil 271; D’Amato (1990) 6 Conn JIL 1; Charney (1993)
87 AJIL 529; Kolb, Théorie du Jus Cogens International (2001); Kolb
(2005) 109 RGDIP 305; Tomuschat & Thouvein (eds), The Fundamental
Rules of the International Legal Order (2006) 83;
Orakhelashvili, Peremptory Norms in International Law (2006).
149
ILC Final Report and Draft Articles, ILC Ybk 1966/II, 247–9 (Art
50); Gaja (1981) 172 Hague Recueil 271, 279–89;
Villiger, Commentary (2009) 661–78; Corten & Klein (2011) 1224–35.
150
VCLT, Art 64. See Fitzmaurice, ILC Ybk 1957/II, 29–30, 51; Draft
Articles, II, ILC Ybk 1963/II, 211 (Art 45); Waldock, ILC Ybk 1963/II, 77,
79; ILC Final Report and Draft Articles, ILC Ybk 1966/II, 261 (Art 61);
Villiger (2009) 344 Hague Recueil 9, 135–41.
151
Villiger (2009) 344 Hague Recueil 9, 137.
152
E.g. Gaja (1981) 172 Hague Recueil 271, 279; cf Villiger (2009) 344
Hague Recueil 9, 140–1.
153
E.g Aust (2nd edn, 2007) 277–311; Corten & Klein (2011) 1236–454.
154
If it is a bilateral treaty, denunciation by one party will terminate it; if it
is multilateral, the withdrawal of the denouncing party will usually not
terminate the whole treaty. Treaties may also be terminated at any time
by the consent of all the parties, after consultation. See VCLT, Art 54; ILC
Final Report and Draft Articles, ILC Ybk 1966/II, 249 (Art 51); Briggs
(1974) 68 AJIL 51; Helfer (2005) 91 Va LR 1579; Aust (2nd edn, 2007)
277.
155
VCLT, Art 56; Fitzmaurice, ILC Ybk 1957/II, 22; Draft Articles, II,
ILC Ybk 1963/II, 200–1 (Art 39); Waldock, ILC Ybk 1963/II, 63–70; ILC
Final Report and Draft Articles, ILC Ybk 1966/II, 250–1 (Art 53); Jiménez
de Aréchaga (1978) 159 Hague Recueil 1, 70–1; Widdows (1982)
53 BY 83; Sinclair (2nd edn, 1984) 186–8; Plender (1986) 57 BY 133,
143; Villiger, Commentary (2009) 695–706. See also Interpretation of the
Agreement of 25 March 1951 between the WHO and Egypt, ICJ Reports
1980 p 73, 94–6, 128–9 (Judge Mosler), 159–62 (Judge Ago), 176–7
(Judge El-Erian), 184–9 (Judge Sette-Camara); Nicaragua, Jurisdiction
and Admissibility, ICJ Reports 1984 p 392, 419–20.
156
McNair (1961) ch 43; Broms (1981/I) 59 Ann de l’Inst 201; Chinkin
(1981) 7 Yale JWPO 177; Delbrück (2000) 4 EPIL 1367.
157
158
IDI Res, Helsinki/III (1985); Greenwood (1987) 36 ICLQ 283, 296–7.
158
Masinimport v Scottish Mechanical Light Industries (1976) 74 ILR
559, 564.
159
ILC Ybk 1963/II, 187, 189.
160
See www.untreaty.un.org/ilc/summaries/1_10.htm. Brownlie was
appointed Special Rapporteur; he was succeeded by Caflisch in 2009.
161
ILC Report 2011, GAOR, 66th Session, Supp No 10, A/66/10, 173–
217. Further: Bannelier, in Angelet, Corten & Klein (eds), Droit du
Pouvoir, Pouvoir du Droit (2007) 125.
162
VCLT, Art 54; Draft Articles, II, ILC Ybk 1963/II, 203–4 (Art 40); ILC
Final Report and Draft Articles, ILC Ybk 1966/II, 251–2 (Art 54). Also:
Kontou (1994).
163
VCLT, Art 59; Draft Articles, II, ILC Ybk 1963/II, 203–4 (Art 41); ILC
Final Report and Draft Articles, ILC Ybk 1966/II, 252–3 (Art 56); Plender
(1986) 57 BY 133, 153–7. Also: Electricity Company of Sofia and
Bulgaria (1939) PCIJ Ser A/B No 77, 92 (Judge Anzilotti).
164
Fitzmaurice, ILC Ybk 1957/II, 28, 47–8, 52; ILC Final Report and
Draft Articles, ILC Ybk 1966/II, 237; Thirlway (1992) 63 BY 1, 94–6;
Kohen, in Cannizzaro (2011) 350. Also: Widjatmiko v Gebroeders Zomer
en Keunig’s Drukkerij Vada, Uitgeversmij (1971) 70 ILR 439; Nuclear
Tests (Australia v France), ICJ Reports 1974 p 253, 337–8 (Judges
Onyeama, Dillard, Jiménez de Aréchaga & Sir Humphrey Waldock, diss),
381 (Judge de Castro, diss), 404, 415–16 (Judge Barwick, diss).
165
McNair (1961) ch 36; Simma, (1970) 20 ÖZföR 5; Rosenne, Breach
of Treaty (1985); Hutchinson (1988) 58 BY 151; Kirgis (1989) 22 Cornell
ILJ 549; Kontou (1994); Gomaa, Suspension and Termination of Treaties
on Grounds of Breach (1996); Fitzmaurice (2001) 6 Austrian RIEL 3;
Laly-Chevalier, La Violation du traité (2005); Villiger (2009) 344
Hague Recueil 9, 144–59; Corten & Klein (2011) 1350–81.
166
The Court rejected Hungary’s argument: ICJ Reports 1997 p 7, 60–2,
65–7. Of course it makes a difference under Art 60 which party is trying
to get rid of the treaty. In Rainbow Warrior the tribunal held that France
had committed a material breach of the agreement in question but
ultimately this finding was of little practical consequence: see (1990) 82
ILR 499.
167
167
Also: Draft Articles, II, ILC Ybk 1963/II, 204–6 (Art 42); Waldock,
ILC Ybk 1963/II, 72–7; ILC Final Report and Draft Articles,
ILC Ybk 1966/II, 253–5 (Art 57).
168
E.g. Simma (1970) 20 ÖZföR 5; Klabbers, in Tupamäki (ed), Essays
on International Law (1998) 20; Fitzmaurice (2001) 6 Austrian RIEL 3.
169
This definition was applied by analogy in Namibia, ICJ Reports 1971
p 16, 46–7, in respect of South African violations of the Mandate for
South West Africa (Namibia) and the consequent revocation of the
Mandate by the UN General Assembly.
170
For comment: Simma (1970) 20 ÖZföR 5, 61.
171
Gabčíkovo-Nagymaros, ICJ Reports 1997 p 7, 65–7.
172
Sinclair (2nd edn, 1984) 190–2; Aust (2nd edn, 2007) 296;
Villiger, Commentary (2009) 752–61.
173
VCLT, Art 61(1); Draft Articles, II, ILC Ybk 1963/II, 206 (Art 43); ILC
Final Report and Draft Articles, ILC Ybk 1966/II, 255–6 (Art 58). Another
example of impossibility arises from the extinction of one of the parties to
a bilateral treaty, apart from any rule of state succession which might
allow devolution: Waldock, ILC Ybk 1963/II, 77–9. For succession see
chapter 18.
174
Gabčíkovo-Nagymaros, ICJ Reports 1997 p 7, 63–4.
175
Draft Articles, II, ILC Ybk 1963/II, 207–11 (Art 44); Waldock,
ILC Ybk 1963/II, 79–85; ILC Final Report and Draft Articles,
ILC Ybk 1966/II, 256–60 (Art 59); van Bogaert (1966)
70 RGDIP 49; Lissitzyn (1967) 61 AJIL 895; Schwelb (1969)
29 ZaöRV 39; Haraszti (1975) 146 Hague Recueil 1; Cahier, in Lamberti
Zanardi et al (eds), Essays in Honour of Roberto Ago (1987)
163; Thirlway (1992) 63 BY 1, 75–82.
176
(1932) PCIJ Ser A/B No 46, 156–8; the Court observed that the facts
did not justify the application of the doctrine, which had been invoked by
France.
177
Jurisdiction, ICJ Reports 1973 p 3, 20–1. Also: Fisheries Jurisdiction
(Germany v Iceland), Jurisdiction, ICJ Reports 1973 p 49; and Briggs
(1974) 68 AJIL 51.
178
178
Gabčíkovo-Nagymaros, ICJ Reports 1997 p 7, 65.
179
Ibid.
180
(1998) 117 ILR 399.
181
Ibid, 442. The issue was not addressed in much depth, however, as
the Court approached it as a matter of judicial review: see Aust (2nd edn,
2007) 299. For criticism of Racke: Klabbers (1999) 36 CMLR 179.
182
VCLT, Art 73. In its work on the law of treaties the ILC put this
question aside: ILC Final Report and Draft Articles, ILC Ybk 1966/II, 267–
8 (Art 69). See also chapter 19.
183
See VCLT, Part V, Sections 3–4. Further: Cahier (1972)
76 RGDIP 645, 672–89; Villiger, Commentary (2009) 799–891; Corten &
Klein (2011) 1455–62.
184
Procedure: Arts 65–8. Further: Briggs (1967) 61 AJIL 976; Morelli
(1974) 57 RDI 5; David, The Strategy of Termination (1976); Thirlway
(1992) 63 BY 1, 85; Villiger (2009) 344 Hague Recueil 9, 160–82.
185
ILC Ybk 1966/II, 238–9, 261. For comment: Sinclair (1970)
19 ICLQ 67.
(p. 395) 17 Diplomatic and Consular Relations
1. Modalities of Interstate Relations1
In its simplest sense diplomacy comprises any means by which states
establish or maintain mutual relations, communicate with each other, or
carry out political or legal transactions, in each case through their
authorized agents. Diplomacy may thus exist between states in a state of
war or armed conflict with each other, but the concept relates to
communication friendly or hostile,2 rather than the material forms of
economic or military conflict.
Normally, diplomacy involves the exchange of permanent diplomatic
missions, and similar permanent, or at least regular, representation is
necessary for states to give substance to their membership of the United
Nations and other major intergovernmental organizations. Then there are
the categories of special missions or ad hoc diplomacy, and the
representation of states at ad hoc conferences.
The rules of international law governing diplomatic relations are at the
most formal end of the spectrum of international communication. They
are the product of long-established state practice reflected in treaties,
national legislation, and judicial decisions. The law has now been codified
substantially in the Vienna Convention on Diplomatic Relations
(VCDR).3 Although parts of the VCDR were progressive, its widespread
acceptance and implementation means that it now is mostly reflective
References
(p. 396) of custom.4 The importance of the principles embodied in the
VCDR was stressed in Tehran Hostages, where the Court observed that
‘the obligations of the Iranian Government here in question are not
merely contractual…but also obligations under general international
law’.5 For English courts the Diplomatic Privileges Act of 1708 was
expressed to be declaratory of the common law. The Act of 1708 was not
replaced until the Diplomatic Privileges Act 1964, which gives effect to
the VCDR in UK law.6 The VCDR does not affect customary rules
governing ‘questions not expressly regulated’ by its provisions7 and
states may vary the position by agreement.
2. General Legal Aspects of Diplomatic
Relations
(A) Incidence
VCDR Article 2 provides that ‘the establishment of diplomatic relations
between States, and of permanent diplomatic missions, takes place by
mutual consent’. There is no right of legation in general international law,
though all states have the capacity to establish diplomatic relations. The
mutual consent involved may be expressed quite informally.
(B) Relation to Recognition
While recognition is a condition for the establishment and maintenance of
diplomatic relations, these are not necessary consequences of
recognition. The non-establishment or withdrawal or reduction of
diplomatic representation may follow purely practical considerations or
constitute a form of non-military sanction. In recent history, this has taken
the form of co-ordinated international action against states suspected of
shielding or sponsoring terrorism. One example occurred following
Libya’s refusal to surrender those individuals thought responsible for the
bombing of Pan Am Flight 103 over Lockerbie, Scotland and UTA Flight
772 over Chad and Niger. Security Council Resolution 748 provided that:
References
(p. 397) all States shall…[s]ignificantly reduce the number and the level of the staff at
Libyan diplomatic missions and consular posts and restrict or control the movement
within their territory of all such staff who remain; in the case of Libyan missions to
international organizations, the host State may, as it deems necessary, consult the
8
organization concerned on the measures required to implement this subparagraph.
When Libya failed to comply with this resolution, Security Council
Resolution 883 directed all countries to continue to reduce staff at Libyan
diplomatic missions and consular posts.9
(C) Rationale of Privileges and Immunities10
Diplomatic relations entail the exercise by the sending government of
state functions on the territory of the receiving state by licence of the
latter. Having agreed to the establishment of diplomatic relations, the
receiving state must enable the sending state to benefit from the content
of the licence. Doing so results in a body of privileges and immunities.
One explanation, now discredited, for this situation was that the
diplomatic agent and the mission premises were ‘exterritorial’, legally
assimilated to the territorial jurisdiction of the sending state.11The
consequences of this theory were never worked out and the law does not
rest on any such premise. Indeed it rests on no particular theory or
combination of theories, though the system is generally compatible with
both the representative theory, which emphasizes the diplomat’s role as
agent of a state, and the functional theory,12 resting on practical
necessity.13 Under the functional model, the immunity is first a statement
recognizing the sovereign and independent status of the sending state,
as well as the public nature of a diplomat’s acts and his or her
consequent immunity from the receiving state’s jurisdiction. Secondly, the
immunity exists to protect the diplomatic mission and staff and to ensure
the
References
(p. 398) efficient performance of functions designed to preserve
international order and maintain communication between states.14
In the final analysis, the question must be related to the dual aspect of
diplomatic representation: the state immunity (immunity ratione materiae)
attaching to official acts of foreign states, and the overlying, yet more
conditional, elements of ‘functional’ privileges and immunities of the
diplomatic staff and the premises.15
(D) Fulfilment of Duties by the Receiving State
The observance of legal duties by the receiving state requires the taking
of various steps, legislative and administrative, in the municipal sphere.
Appropriate care must be shown in providing police protection for
personnel and premises and the state will incur responsibility if the
judiciary fails to maintain the necessary privileges and immunities.
An obvious example is again Tehran Hostages. There, Iran was held
responsible for failing to prevent and for subsequently adopting the
actions of militants who invaded the US mission in Tehran and holding
the diplomatic and consular personnel as hostages. The International
Court held:
The approval given to these facts by the Ayatollah Khomeini and other organs of the
Iranian State, and the decision to perpetuate them, translated continuing occupation of
the Embassy and detention of the hostages into acts of that State. The militants, authors
of the invasion and jailers of the hostages, had now become agents of the Iranian State
for whose acts the State itself was internationally responsible.16
(E) Functions of Missions
VCDR Article 3 sets out succinctly the functions of a diplomatic mission,
primarily those of representing the sending state in the receiving state
and ‘protecting in the receiving State the interests of the sending State
and of its nationals, within the limits permitted by international law’.17 The
mission may negotiate with the receiving state’s authorities, ascertain
and report on local events, promote friendly relations between the two
states, etc.
References
(p. 399) (F) Abuse of Diplomatic Immunities
Serious breaches of diplomatic immunity are rare,18 due principally to the
reciprocal benefits that accrue through mutual observance of diplomatic
law.19 This position might be thought remarkable, given the stringent
limitations on jurisdictional competence placed on states by the VCDR
and the points of historical, ideological, political, or other friction often
existing between states maintaining diplomatic relations with each other.
But there have been serious abuses. A Nigerian former minister was
found drugged in a ‘diplomatic bag’ (a container) at Stansted
Airport.20 Police Constable Yvonne Fletcher, on guard outside the Libyan
People’s Bureau in London, was killed by a weapon fired from the
premises.21 When, a week later, the embassy was finally evacuated and
searched in the presence of a Saudi representative, weapons and
relevant forensic evidence were uncovered. The House of Commons
Foreign Affairs Committee prepared a detailed review of the VCDR,22 but
concluded that any attempt to alter the balance of rights and duties so as
to further require protected individuals to respect the laws of the receiving
state was undesirable.23 It recommended more rigorous application of
safeguards in the VCDR, notably Articles 9 (persona non grata) and 11
(limitation of mission size), a recommendation adopted in full by the
government.24
3. Staff, Premises, and Facilities of Missions
(A) Classification of Personnel
VCDR Article 1 divides mission staff into three categories, the diplomatic
staff (those members of the mission having diplomatic rank as
counsellors, diplomatic secretaries, or attachés), the administrative and
technical staff, and those persons in the domestic service of the mission.
Two other terms are important. A ‘diplomatic agent’ is the head of the
mission or a member of the diplomatic staff of the mission; the ‘head of
References
(p. 400) the mission’ is ‘the person charged by the sending State with the
duty of acting in that capacity’.
(B) Heads of Mission
25
(i) Accreditation and Agrément25
VCDR Article 4(1) provides that the sending state must secure
the agrément or ‘consent’ of the receiving state prior to a proposed head
of mission assuming the post. The receiving state holds a unilateral right
of rejection in this respect, and is not obliged to provide reasons in the
event that agrément is refused (Article 4(2)).26
(ii) Classes and precedence27
Under VCDR Article 14(1) heads of mission fall into three classes: (a)
ambassadors or nuncios28 accredited to heads of state, or other heads of
mission of equivalent rank;29 (b) envoys, ministers and internuncios
likewise accredited; and (c) chargés d’affaires accredited to Ministers of
Foreign Affairs. With the doctrine of sovereign equality now formally
embedded, there is no class-based differentiation between heads of
mission save as concerns precedence and etiquette (Article 14(2)).
VCDR Article 16(1) provides that heads of mission take precedence in
their respective classes in the order of taking up their functions in
accordance with Article 13, a provision that goes back to 1815.30
(C) Appointment of Members Other than the Head of
Mission31
VCDR Article 7 provides that the sending state may freely appoint the
mission staff. In the case of military, naval or air attachés, the receiving
state may require their names to be submitted for approval beforehand.
In the ILC there was considerable difference of opinion as to the extent to
which the consent of the receiving state conditioned the appointment of
members other than the
References
(p. 401) head of mission. The text of Article 7 may seem sufficiently
clear32 but at the Vienna Conference several delegations adopted the
position that the article was to be interpreted in accordance with
prevailing custom,33 namely that the consent of the receiving state was
always required. Practice has now apparently crystallized in favour of an
unrestricted right of appointment on the part of the sending state, save as
provided for in Article 7.34
In a controversial English decision35 it was held that Article 7 was
qualified by Article 10 and that a failure to notify the receiving state
precluded an appointee’s immunity. In any case the receiving state has
special powers of control in case of appointments to more than one state
(Article 5(1)), appointment of non-nationals (Article 8), and excessive
appointments (Article 11). In addition, Article 9(1) permits the receiving
state to declare a proposed appointee persona non grata prior to arrival.
There is no requirement to give reasons for such a rejection.36
(D) Termination of Functions
Diplomatic relations are consensual and may be terminated by
withdrawal of the mission by either the sending or receiving state.37
The sending state may for its own reasons, practical or political,
terminate the functions of individual staff members on notification to the
receiving state. Under VCDR Article 9(1), the receiving state may also, at
any time and without explanation, declare any member of a diplomatic
mission persona non grata or not acceptable. In such a case, the sending
state must either recall the individual in question or terminate his or her
functions within the mission. Under Article 9(2), a refusal by the sending
state to comply with such a declaration gives the receiving state the right
to refuse recognition of the individual as a member of the mission.
Following its codification in the VCDR, the persona non grata rule has
been used to respond to conduct which was not considered by the ILC, a
sign of versatility rather than misuse.38 It was used extensively during the
Cold War to remove suspected spies. In the modern era, it is most
frequently invoked for espionage, involvement in terrorist or subversive
activities, and other criminal behaviour. For example, in 1976 the entire
diplomatic staff of the North Korean missions to Denmark, Finland,
Norway, and Sweden were declared persona non grata following the
revelation that the embassies
References
(p. 402) were a front for the illegal import and sale of drugs, cigarettes,
and alcohol.39 From the mid-1980s the UK has declared various
embassy staff members persona non grata for the consistent violation of
parking regulations in London; when the outstanding fines were paid, the
declarations were withdrawn.40
(E) Premises and Facilities
VCDR Article 25 provides that the receiving state ‘shall accord full
facilities for the performance of the functions of the mission’. Other
provisions refer to freedom of movement for members of the mission,
subject to legal restrictions established to ensure national security,41 and
‘free communication on the part of the mission for all official
purposes’.42 A particular problem is the acquisition of premises as some
domestic legal systems may exclude a market in land or restrict the
acquisition of land by aliens or foreign states. The ILC draft43 had
required the receiving state either to permit acquisition by the sending
state or to ‘ensure adequate accommodation in some other way’. The
VCDR contains less decisive provisions in Article 21.
4. Inviolability of Missions
(A) Premises44
A consequence of the establishment and functioning of a mission is the
protection of the premises from external interference. The mission
premises, including ancillary land, are the headquarters of the mission
and benefit from the immunity of the sending state.45 The principle flows
from the concept of diplomatic immunity, and is pre-Grotian in
origin.46 VCDR Article 22 recapitulates the customary position, providing
expressly for the inviolability of the mission from intrusion by agents of
the receiving state (Article 22(1)), and setting out the receiving state’s
duty to take all appropriate
References
(p. 403) steps to protect the premises of the mission against intrusion or
damage and to prevent any disturbance of the mission’s peace or
impairment of its dignity (Article 22(2)).47
Article 22(1) contains no proviso relating either to cases of emergency,
for example, the situation in which the premises present a pressing
danger to the surrounding district by reason of fire, or to
countermeasures in case of a use of the premises by the staff
themselves for unlawful purposes. It is a nice question whether, if
remedial steps were taken by the host state, a defence of necessity
or force majeure could be sustained,48 and in any event
countermeasures infringing on inviolability are excluded.49 The practice
to date has generally been that missions will avoid at all costs calling on
external assistance in the event of an emergency.50
It follows from Article 22 that writs cannot be served, even by post, within
the premises of a mission but only through the local Ministry for Foreign
Affairs.51 Article 22(2) creates a special standard of care over and above
the normal obligation to show due diligence in protecting aliens within the
state. The International Court found that breaches of Article 22 had
occurred in Armed Activities on the Territory of the Congo (Democratic
Republicof the Congo v Uganda) in respect of attacks against the
Ugandan embassy in Kinshasa by Congolese troops.52
Embassy bank accounts are protected by VCDR Article 24, as are
archives or documents of the mission, which are ‘inviolable at any time
and wherever they may be’.53
(B) Diplomatic Asylum54
The VCDR contains no provision on diplomatic asylum, although in
Article 41 the reference to ‘special agreements’ allows for bilateral
recognition of the right to give asylum to political refugees within the
mission. The issue was deliberately excluded from the agenda during the
ILC’s preparatory work. It is doubtful if a right of asylum for either political
or other offenders is recognized by general international law.55 There is
References
(p. 404) a qualified right under the Havana Convention on Asylum of
192856 and it may be that a Latin-American regional custom exists.57
The question of diplomatic asylum under the VCDR is dependent on the
joint application of Article 41(1)—on respect for law and non-interference
in the affairs of the receiving state—and Article 22, which allows no
exception to the inviolability of a diplomatic mission. Thus while there is
no right to grant asylum, once one or more refugees have been accepted
onto embassy property the receiving state cannot retrieve them, a
situation which will ordinarily force the sending and receiving state to the
negotiating table. In 2002, for example, various groups from North Korea
sought refuge in sympathetic Western embassies in Beijing. Twenty-five
North Korean defectors took refuge in the Spanish embassy; following
negotiations between China, South Korea, Spain, and the Philippines,
they were returned to Seoul via Manila.58
(C) Archives, Documents, and Official Correspondence59
The VCDR establishes the inviolability of the archives and documents of
the mission ‘at any time and wherever they may be’,60 as well as official
correspondence.61 It is provided simply that ‘the diplomatic bag shall not
be opened or detained’.62 A significant breach of this obligation was the
subject of Tehran Hostages before the International Court. The US
embassy was ransacked and documents purporting to come from the
diplomatic archive of the mission disseminated by the militants and media
outlets controlled by the Iranian government.63
The evidence of abuse of the diplomatic bag in the form of drug
trafficking or involvement in terrorist activities has led the UK government
to resort to the scanning of bags where there are strong grounds of
suspicion: a member of the relevant mission is invited to be present.64 In
1989 the ILC adopted a set of more precise rules concerning diplomatic
bags and diplomatic couriers, but no agreement could be reached in the
General Assembly.65
References
(p. 405) A diplomatic bag is given its character by its express label,
though its contents may attract de facto protection under other provisions
of the VCDR. For example, the Eritrea-Ethiopia Claims Commission held
that the interception of an Ethiopian diplomatic bag in 1999 by Eritrean
officials at Asmara airport violated Article 24. Although the package was
incorrectly labelled and shipped by private courier and was thus not a
‘diplomatic bag’ for the purposes of Article 27, the character of the blank
passports, invoices, and receipts found within was apparent.66
As the mission does not have separate legal personality, archives and
other documents remain the property of the sending state. Where there is
a change of government, ownership of these materials will be transferred
to the new government by the receiving state. The new government may
then enforce any rights accruing to it through ownership of the materials,
though in so doing it will also assume responsibility for any related
liabilities.67
(D) Other Property
VCDR Article 22(3) expands protection to other embassy property: the
premises of the mission, their furnishings, and other property, as well as
the means of transport of the mission are immune from search,
requisition, attachment, or execution.
5. Diplomatic Agents
(A) Inviolability
VCDR Article 29 provides:
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of
arrest or detention. The receiving state shall treat him with due respect and shall take all
appropriate steps to prevent any attack on his person, freedom or dignity.
This inviolability is distinct from immunity from criminal jurisdiction. As
with inviolability of the mission premises, there is no express reservation
for action in cases of emergency, for example a drunken diplomat with a
loaded gun in a public place.68
VCDR Article 30 provides that the private residence (including a
temporary residence) of a diplomatic agent is likewise inviolable, as are
the agent’s papers, correspondence, and property, subject to Article
31(3). However, there is no jurisdictional immunity in case of a real action
concerning immovable property and, whilst no measures of execution
may be taken against property, courts may be unwilling to
References
(p. 406) support measures of self-help undertaken by the diplomatic
agent to recover premises from a person in possession under a claim of
right made in good faith.69
It has recently been suggested that the scope of the duty in Article 29
should include indirect attacks on the dignity of a diplomat, or even
events in general which may embarrass or offend a diplomat. In Aziz70 a
former wife of the Sultan of Brunei brought proceedings against a fortune
teller for the return of property given under a false understanding. The
Sultan intervened, arguing that as a foreign head of state he was entitled
to the same protections as offered to a foreign head of mission under
section 20 of the State Immunity Act 1978 (enacting VCDR Article 29)
and that there was a duty to prevent any attack on his dignity. The Court
disagreed, finding that no outrage on the Sultan’s dignity would be
committed if the judgments in question were published. Collins LJ
concluded:
I am far from convinced by the material before us that there is a rule of customary
international law which imposes an obligation on a State to take appropriate steps to
prevent conduct by individuals which is simply offensive or insulting to a foreign head of
state abroad.71
This position is consistent with the functional framework of modern
diplomatic law.
(B) The Concept of Immunity72
Diplomatic agents enjoy immunity from local curial jurisdiction, not an
exemption from the substantive law.73 The immunity can be waived and
the local law may then be applied. VCDR Article 41(1) stipulates that ‘it is
the duty of all persons enjoying such privileges and immunities to respect
74
the laws and regulations of the receiving State’,74 though without
prejudice to those privileges or immunities.
(C) Immunity of Serving Agents from Criminal
Jurisdiction75
VCDR Article 31(1) provides without qualification that ‘a diplomatic agent
shall enjoy immunity from the criminal jurisdiction of the receiving
State’.76 This has long been
References
(p. 407) the position in custom. A diplomatic agent guilty of serious or
persistent breaches of the law may be declared persona non grata but is
immune from prosecution while in post, irrespective of the character of
the crime or its relation to the functions or work of the mission.77
(D) Immunity from Civil and Administrative Jurisdiction78
Article 31(1) also confers immunity on the diplomatic agent from the local
civil and administrative jurisdiction, except in the case of: (a) a real action
relating to private immovable property in the territory of the receiving
state (unless held on behalf of the sending state for the purposes of the
mission);79 (b) an action relating to succession in which the agent is
involved as executor, administrator, heir or legatee in his or her capacity
as a private individual; and (c) any professional or commercial activity by
the diplomatic agent outside his or her official duties.80
The exceptions to this form of immunity represent a modern development
in the law and reflect the principle that the personal immunities of
diplomatic agents should not be unqualified. The exception relating to
immovable property applies to the situation in which the property is the
residence of the diplomatic agent. However, in that case such measures
of execution as affect the inviolability of his person or of his residence are
ruled out.81
The jurisdictions referred to in VCDR Article 31(1) ‘comprise any special
courts in the categories concerned, e.g. commercial courts, courts set up
to apply social legislation, and administrative authorities exercising
judicial functions’.82 Immunity covers not only direct claims against a
diplomat and his or her property, but also family law claims, including
proceedings to protect children and other family members.83 An unsettled
point is whether the immunity covers coronial inquests. Article 31
provides no neat answer, but the UK practice is that such an inquest
should not take place with out the mission’s approval.84
References
(p. 408) (E) Immunity from Jurisdiction for Acts
Done Ratione Personae85
In the case of official acts undertaken by a protected person the immunity
is permanent, since it is that of the sending state.86 In respect of private
acts the immunity is contingent and supplementary, terminating when the
individual concerned leaves his post.87 VCDR Article 39(2) refers to the
termination of diplomatic functions and the concomitant immunities, and
provides: ‘However, with respect to acts performed by such a person in
the exercise of his functions as a member of the mission, immunity shall
continue to subsist’.88 The definition of official acts is by no means selfevident, though in case of doubt weight should be given to the assertion
of the sending state.89 It appears to extend to acts undertaken by a
diplomat which were ordered by the sending state. For example, in a
German case,90 the Syrian Ambassador to the German Democratic
Republic was instructed to ‘do everything possible’ to assist a terrorist
organization. He accepted for safekeeping a bag of explosives which
were then used in a bombing in West Berlin. The court took the view that
the ambassador’s acts were subject to immunity ratione materiae and
any liability consequentially accruing was attributed to Syria.91
The principle extends to matters which are essentially ‘in the course of ’
official duties, for example a road accident involving a car on official
business.92 The difficulty this may cause was seen in Knab v Republic of
Georgia, which concerned the death of a girl caused by a Georgian
diplomat, driving intoxicated following a diplomatic reception. The parties
agreed he was entitled to personal immunity, leaving the victim’s family to
proceed against the Georgian state alone.93
(F) Application of Certain Local Laws94
Certain immunities from the application of the local law are ancillary to
the main body of privileges and immunities. Perhaps the most decisive is
that from measures
References
(p. 409) of execution.95 There is exemption from all dues and taxes with a
number of exceptions (notably indirect taxes incorporated in the price of
goods or services).96 Further privileges concern customs
duties,97personal services, public service (i.e. jury service), military
obligations,98 social security provisions,99 and the giving of evidence as a
witness.100 The exemption from customs duties of articles for the
personal use of the diplomatic agent or members of his or her family
belonging to the household is a rendering of a long current practice into a
legal rule. The exemption from dues and taxes probably existed in the
previous customary law, though practice was inconsistent.101
(G) Beneficiaries of Immunities102
Diplomatic agents who are not nationals of or permanently resident in the
receiving state are beneficiaries of the privileges and immunities set out
in VCDR Articles 29 to 36.103 The extent to which administrative and
technical staff (as non-diplomatic staff members) should have these
privileges and immunities was a matter on which state practice was not
uniform104 and on which there was considerable debate at the Vienna
Conference. The position for this group and also for members of service
staff is regulated by Article 37.105 Under Article 37(2), members of a
mission’s administrative and technical staff, as well as members of a
diplomatic household enjoy those immunities specified in VCDR Articles
29 to 35. However, the Article 31(1) immunity from civil and
administrative jurisdiction is limited in respect of these individuals to acts
performed in the course of their official duties (if any). Insofar as the
service staff of the mission are concerned, provided they are not
nationals of the receiving state, Article 31(2) provides for immunity in
respect of acts performed in the course of their duties and exemption
from dues and taxes on the emoluments they receive through their
employment and from social security provisions.
In the case of diplomatic agents and the administrative and technical staff
of the mission the respective immunities extend to ‘members of the
family’ ‘forming part
References
(p. 410) of ’ their households. In view of variations in family law and social
custom a precise definition was thought inappropriate.106
(H) Duration of Privileges and Immunities107
The duration of privileges and immunities is governed by VCDR Article
39. This provides, first, that privileges and immunities apply from the
moment a protected person enters the receiving state, or if already there,
the moment that the receiving state is appropriately notified of his or her
appointment. Secondly, where the functions of a protected person
terminate, the attached privileges and immunities normally cease at the
moment when the protected person leaves the country, or on the expiry
of a reasonable period in which to do so.108 Immunity with respect to acts
done ratione materiae will outlast the termination or expiration of the
protected office.
There is no precise definition of a ‘reasonable period’ under VCDR Article
39(2).109 Absent a legislative statement on the subject this will vary
circumstantially, with those declared persona non grata given
considerably less leeway. For example, following the shooting of PC
Fletcher, the persons expelled were given seven days to leave the
UK.110 In contrast, Swiss law lays down a default ‘reasonable period’ of
six months until the immunity terminates, and Venezuela allows a
minimum of a month.111
(I) Waiver112
It has always been accepted that immunity may be waived by the
sending state.113 Previous practice had been in part tolerant of implied
waiver based on conduct but VCDR Article 32(2) states that ‘waiver must
always be express’.114 Under Article 32(3)
References
(p. 411) the initiation of proceedings excludes immunity from jurisdiction
in respect of any counterclaim directly connected with the principal
claim.115
Article 32(4) provides that waiver of immunity from civil or administrative
jurisdiction does not imply waiver in respect of the execution of the
judgment, for which separate waiver is necessary. But a waiver once
given is irrevocable.116
Article 32 makes no reference to criminal jurisdiction, but this is a simple
oversight: a waiver will be just as valid if invoked in relation to a criminal
matter as with respect to civil jurisdiction.117 But the scope of a waiver
may be limited to civil or criminal jurisdiction. In United States v
Makharadze, the prequel to Knab v State of Georgia, the Georgian state
waived the diplomat’s immunity in respect of criminal prosecution, but
maintained civil immunity in respect of a suit brought by the victim’s
family.118
Self-evidently, the waiver is only valid if given by somebody with the
necessary authority to do so. Given that the immunity belongs to the
state,119 only the state can grant the authority to waive it.120 This applies
even when considering a protected per-son’s attempt to waive
their own immunity; for example, in Nzie v Vassah,121a letter written by a
diplomat from the Cameroon embassy in Paris saying that he agreed to
divorce his wife under French law did not constitute a valid waiver of
immunity.
6. Other Matters
(A) Consular Relations122
Consuls are in principle distinct in function and legal status from
diplomatic agents. Though agents of the sending state for particular
purposes, they are not accorded the type of immunity from the laws and
enforcement jurisdiction of the receiving state enjoyed by diplomatic
agents. Consular functions vary and include the protection of the
interests of the sending state and its nationals, development of economic
and cultural relations, the issuing of passports and visas, administration
of the property of nationals of the sending state, registration of births,
deaths, and marriages, and supervision of vessels and aircraft attributed
to the sending state.
References
(p. 412) Since the eighteenth century the status of consuls has been
based upon general usage rather than law, together with special treaty
provisions. The customary law as it has evolved is as follows.123 The
consul must have the authority of the sending state (his commission) and
the authorization of the receiving state (termed an exequatur). The
receiving state must give consular officials and premises special
protection, that is, a higher standard of diligence than that appropriate to
protection of aliens generally. The consular premises are not inviolable
from entry by agents of the receiving state.124 Consular archives and
documents are inviolable and members of the consulate are immune
from the jurisdiction of the judicial and administrative authorities of the
receiving state in respect of acts performed in the exercise of consular
functions.125 This immunity for official acts is generally regarded as
deriving from state immuni-ty.126 Articles intended for the use of the
consulate are exempt from customs duties, and members of the
consulate, other than the service staff, are exempt from all public
services, including military obligations. The authorities reveal differences
of opinion concerning the personal inviolability of consular officials and in
principle they are liable to arrest or detention.127 In addition they are
amenable to criminal and civil jurisdiction in respect of non-official acts, to
local taxation, and to customs duties. In a general way it could be said
that the jurisdiction of the host state is presumed applicable.
The existence of fairly uniform practices(whatever the customary law
might be), evidenced by a large number of bilateral
128
treaties,128 encouraged the ILC to produce draft articles on consular
relations, and led to the 1963 Vienna Convention on Consular Relations
(VCCR).129 It is provided that the Convention ‘shall not affect other
international agreements in force as between parties to them’. The VCCR
has a strong element of development and reconstruction of the existing
law and brings the status of career consuls, as opposed to honorary
consuls, nearer to that of diplomatic agents. Career consuls are
exempted from taxation and customs duties in the same way as
diplomats. Consular premises are given substantial inviolability (Article
31) and are exempted from taxation (Article 32). Immunities and the duty
of protection already recognized
References
(p. 413) by customary law are maintained.130 A significant extension of
protection and immunity occurs in Article 41131 regarding the personal
inviolability of consular officials. Under Article 41(1) such officials shall not
be liable to arrest or detention prior to trial, save in the case of a serious
criminal offence and a decision to this effect by a competent judicial
authority.132 Likewise, consular officials shall not be liable to any form of
restriction on their personal freedom, save in execution of a judicial
decision of final effect or the circumstances referred to in Article 41(1)
(Article 41(2)). Finally, whilst a consular official may be compelled to
appear before a criminal court of the receiving state, they must be treated
in a manner commensurate to their station and unless the circumstances
referred to in Article 41(1) subside, any penalty imposed must hamper
the exercise of consular functions as little as possible (Article 41(3)).
Although the VCCR has attracted no less than 187 parties, it is not yet
conclusive evidence on the present state of international
law.133 Nevertheless, states and municipal courts134 may use its
provisions as the best evidence of the lex lata, quite apart from its effect
for the actual parties.135 In Tehran Hostages the International Court
emphasized that the consular obligations disregarded by Iran were part
of general international law and not merely contractual obligations
established by the VCCR.136
In a series of cases involving foreign nationals sentenced to death in
various component states of the US, requests for provisional measures
have been addressed to the International Court. The requests have been
based upon allegations of breaches of the provisions of the VCCR;
particularly the requirement that arresting authorities must inform foreign
nationals of their right to contact the appropriate consulate (Article 36(1)
(b)).137
(B) Special Missions138
Beyond the sphere of permanent relations by means of diplomatic
missions or consular posts, states make frequent use of ad hoc
diplomacy or special missions. These
References
(p. 414) vary considerably in functions: examples include a head of
government attending a funeral abroad in his official capacity, a foreign
minister visiting his opposite number in another state for negotiations,
and the visit of a government trade delegation to conduct official
business. The UN General Assembly adopted and opened for signature
the Convention on Special Missions 1969, which entered into force in
1985.139 This provides a fairly flexible code of conduct based on the
VCDR with appropriate divergences. The Convention has influenced the
customary rules concerning persons on official visits (special missions),
which have developed largely though domestic case-law.140 The
Convention confers a higher scale of privileges and immunities upon a
narrower range of missions than the extant customary law, which focuses
on the immunities necessary for the proper conduct of the mission,
principally inviolability and immunity from criminal jurisdiction.141
(C) Crimes Against Internationally Protected Persons
Inviolability of diplomatic personnel is one of the oldest principles of
international law, but the kidnapping, murder, and assault of diplomatic
agents increased markedly aft er 1961.142 The International Court found
that breaches of VCDR Article 29 had occurred in Armed Activities(DRC
143
v Uganda).143 In 2005 al-Qaeda abducted and killed the prospective
Egyptian Ambassador to Iraq, Ihab al-Sherif, apparently to deter Arab
governments from strengthening diplomatic relations with the elected
government in Baghdad.144
Due to the high incidence of political acts of violence directed against
diplomats and other officials, the General Assembly adopted the 1973
Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents.145 The
offences envisaged are primarily the ‘murder, kidnapping or other attack
upon the person or liberty of an internationally protected person’, the
latter category including heads of state, foreign ministers, etc.
Contracting parties undertake to make these crimes punishable by
‘appropriate penalties which shall take into account their grave nature’,
and either to extradite the alleged offender or submit the case to the
domestic prosecuting authorities.
References
Footnotes:
1
ILC Ybk 1956/II, 129; ILC Ybk 1957/I, 2; ILC Ybk 1958/I, 84;
ILC Ybk 1958/II, 16, 89; 7 BD ch 19; Cahier, Le Droit diplomatique
contemporain (1962); 4 Rousseau 139–210; Salmon, Manuel de Droit
diplomatique (1994); Satow’s Diplomatic Practice (ed, Roberts, 6th edn,
2009); Lee & Quigley, Consular Law and Practice (3rd edn,
2008); Denza, Diplomatic Law (3rd edn, 2008); Fox, The Law of State
Immunity (2nd edn, 2008) 700–36; van Alebeek, ‘Immunity, Diplomatic’
(2009) MPEPIL; Hestermeyer, ‘Vienna Convention on Diplomatic
Relations (1961)’ (2009) MPEPIL. Also Frey & Frey, The History of
Diplomatic Immunity (1999); Barston, Modern Diplomacy (2006).
2
Cf Sir Henry Wooton’s definition of an ambassador: ‘an honest man
sent to lie abroad for the good of his country’ (1604). According to Satow,
the joke is in the translation, not in the original Latin: Satow (6th edn,
2009) 82.
3
3
18 April 1961, 500 UNTS 95. Further: Optional Protocol concerning the
Acquisition of Nationality, 18 April 1961, 500 UNTS 223; Optional
Protocol concerning the Compulsory Settlement of Disputes, 18 April
1961, 500 UNTS 241. The VCDR has 186 parties; the Optional Protocol
concerning Acquisition of Nationality, 51 parties; the Optional Protocol
concerning the Compulsory Settlement of Disputes, 66 parties.
4
Fox (2nd edn, 2008) 703; Denza (3rd edn, 2008) 1–12; Hestermeyer,
‘Vienna Convention on Diplomatic Relations (1961)’ (2009) MPEPIL.
5
United States Diplomatic and Consular Staff in Tehran (US v Iran), ICJ
Reports 1980 p 3, 31, 33, 41.
6
Empson v Smith [1966] 1 QB 426; Shawv Shaw [1979] FLR 62. The
schedule to the 1964 Act sets out those provisions of the VCDR which
are incorporated into UK law. Cf Buckley (1965–66) 41 BY 321.
7
Philippine Embassy (1984) 65 ILR 146, 161–2, 186–7; Republic of ‘A’,
Embassy Bank Account (1988) 77 ILR 489; Abbott v Republic of South
Africa (1999) 113 ILR 411.
8
SC Res 748 (1992), operative §6.
9
SC Res 883 (1993), operative §7.
10
Salmon (1994) §§271–3; Denza (3rd edn, 2008) 13–15; Fox (2nd edn,
2008) 700–1; Lee & Quigley (3rd edn, 2008) 341–2.
11
E.g. Grotius, De Iure Belli ac Pacis (1695, ed Tuck 2005) II.xviii.§IV.5:
‘yet that an Exception should be made in Favour of Embassadors, who,
as they are, by a Sort of Fiction, taken for the very Persons whom they
represent…so may they be by the same kind of Fiction be imagined to be
out of the Territories of the Potentate, to whom they are sent’.
12
Based on the maxim ne impediatur legatio: Fox (2nd edn, 2008) 701.
The functional theory is not a latecomer, having been well articulated by
Vattel, Le Droit des gens (1758, tr Anon 1797) IV.vii.§92: ‘Now,
embassadors and other public ministers are necessary instruments for
the maintenance of that general society, of that mutual correspondence
between nations. But their ministry cannot effect the intended purpose
unless it be invested with all the prerogatives which are capable of
ensuring its legitimate success, and of enabling the minister freely and
faithfully to discharge his duty in perfect security.’
13
ILC Ybk 1958/II, 94; Tietz v People’s Republic of Bulgaria (1959) 28
ILR 369; Yugoslav Military Mission (1969) 65 ILR 108; Parking
Privileges (1971) 70 ILR 396; Smith v Office National de l’Emploi (1971)
69 ILR 276; Private Servant (1971) 71 ILR 546; Dorf (1973) 71 ILR
552; 767 Third Avenue Associates v Permanent Mission of Zaire to the
UN, 988 F.2d 295 (2nd Cir, 1993); Aziz v Aziz;HM The Sultan of Brunei
intervening [2008] 2 All ER 501. The preamble to the VCDR refers to
both considerations.
14
Satow (6th edn, 2009) 98; Fox (2nd edn, 2008) 701.
15
Courts seeking to develop a restrictive doctrine of state immunity are
tempted to emphasize the distinction between state immunity and the
more extensive immunity of diplomatic agents: e.g. Foreign Press
Attaché (1962) 38 ILR 160, 162.
16
ICJ Reports 1980 p 3, 35. In respect of state responsibility for the acts
of agents and the co-option of acts: chapter 25. Further: Buffard &
Wittich, ‘United States Diplomatic and Consular Staff in Tehran Case (US
v Iran)’ (2007) MPEPIL.
17
Also: VCDR, Art 41 which provides, inter alia, that persons enjoying
privileges and immunities have a duty not to interfere in the internal
affairs of the receiving state. Further: Denza (3rd edn, 2008) 464–8.
18
Cf Tehran Hostages, ICJ Reports 1980 p 3. At the height of the Cold
War, espionage operations of considerable scale were based in both
Western and Soviet Embassies: Roberts (6th edn, 2009) 115. Generally:
Richelson, American Espionage and the Soviet Target (1987); Gaddis
(2007) 13 Diplomatic History 191.
19
Higgins (1985) 78 AJIL 641, 641.
20
R v Lambeth Justices, ex parte Yusufu (1985) 88 ILR 323.
21
Further: Satow (6th edn, 2009) 86, 102, 107–8. On the accreditation
problem: Denza (3rd edn, 2008) 68.
22
Generally: Cameron (1985) 34 ICLQ 610; Higgins (1985)
79 AJIL 641; Higgins (1986) 80 AJIL 135; Davidson, Freestone, Lowe &
Warbrick (1986) 35 ICLQ 425; Herdegen (1986) 46 ZaöRV 734; Orrego
Vicuña (1991) 40 ICLQ 34. Also: UKMIL (1985) 56 BY 363, 437–62.
Generally: Barker, The Abuse of Diplomatic Privileges and
Immunities (1996).
23
Cf VCDR, Art 41(1), which contains this obligation (but without
prejudice to the inviolability of protected individuals).
24
Diplomatic and Consular Premises Act 1987 (UK); UKMIL (1985)
65 BY 363, 439–40; UKMIL (1987) 58 BY 540.
25
Satow (6th edn, 2009) 84–5.
26
In case of the appointment of a chargé d’affaires ad interim to act
provisionally as head of the mission, owing to the vacancy of the post of
head or his inability, no agrément is required: VCDR, Art 19(1).
27
Generally: Hardy, Modern Diplomatic Law (1968) 21–4; Satow (6th
edn, 2009) 90–3. The practice was regulated previously by the Congress
of Vienna, 1815, and the Conference of Aix-la-Chapelle, 1818, which
established four classes. Further: 7 BD 655.
28
Representatives of the Holy See. On their precedence: VCDR, Art
16(3). Further: Satow (6th edn, 2009) 91.
29
High Commissioners between Commonwealth countries are
considered the equivalent of ambassadors. On occasion, a distinctly
lower rank of diplomat may be sent as head of mission, a situation
usually reflecting a historical anomaly or coolness in diplomatic relations:
Satow (6th edn, 2009) 92.
30
Règlement on the Precedence of Diplomatic Agents, Vienna, 19
March 1815, 64 CTS 1.
31
Generally: Satow (6th edn, 2009) 85–90.
32
4 Rousseau 158–9; Brown (1988) 37 ICLQ 53, 54.
33
Harvard Research (1932) 26 AJIL Supp 15, 67 (Art 8).
34
Denza (3rd edn, 2008) 60–8; Satow (6th edn, 2009) 85–6.
35
R v Lambeth Justices, ex parte Yusufu (1985) 88 ILR 323; Crawford
(1985) 56 BY 311, 328–31.
36
36
VCDR, Art 4(2) so provides with respect to heads of mission, but this
is no basis for an expressio unius interpretation in the case of other
appointees, e.g. defence attachés: Denza (3rd edn, 2008) 61.
37
VCDR, Arts 44, 45(a). On the effect of death: Art 39(3) and (4).
Further: 7 Whiteman 83–108; Denza (3rd edn, 2008) 449–50; Satow (6th
edn, 2009) 206–15. Also: Gustavo JL (1987) 86 ILR 517.
38
Denza (3rd edn, 2008) 76–7.
39
Satow (6th edn, 2009) 213.
40
Denza (3rd edn, 2008) 78–86. It remains the practice of the UK
government to ask for the removal of any foreign diplomat who incurs
more than a set number of unpaid parking tickets, whilst the US contents
itself with the revocation of driving privileges: Satow (6th edn, 2009) 129.
41
VCDR, Art 26. Also: Denza (3rd edn, 2008) 205–10.
42
VCDR, Art 27(1). Also: Kerley (1962) 56 AJIL 88, 110–18; Denza (3rd
edn, 2008) 211–24.
43
VCDR, Art 19. Also: Hardy (1968) 33–4; Denza (3rd edn, 2008) 128–
30.
44
Denza (3rd edn, 2008) 135–79; Satow (6th edn, 2009) 101–
8; Embassy Eviction (1965) 65 ILR 248.
45
It further includes the droit de chapelle, the right to maintain within the
mission a chapel and to practise the faith of the head of the mission,
which, e.g., exempted foreign priests in the service of foreign missions
from anti-Catholic laws during the 1745 rebellion in England: Martens,
2 Causes célèbres de droit des gens (1827) 22–5. Cf Denza (3rd edn,
2008) 143–4.
46
Grotius states that diplomatic immunity encompassed the immunity of
diplomatic persons and possessions or the levying of execution on
embassy premises: Grotius, De Iure Belli ac Pacis (1695, ed Tuck 2005)
II.xviii.§§8–9.
47
VCDR, Art 1(i) defines ‘the premises of the mission’ as ‘the
buildings…and the land ancillary thereto…used for the purposes of the
mission’; premises not so ‘used’ are outside the terms of VCDR, Art
22; Westminster City Councilv Government of the Islamic Republic of
Iran [1986] 3 All ER 284.
48
E.g. the case of Sun Yat Sen, detained in the Chinese Legation in
London in 1896: McNair, 1 Opinions 85; and the shooting episode at the
Libyan embassy in London in April 1984: UKMIL (1984) 55 BY 459, 582–
4. Also: Higgins (1985) 79 AJIL 641, 646–7; Denza (3rd edn, 2008) 144–
5; Fatemi v United States, 192 A.2d 535 (1963); R v Turnbull, ex parte
Petroff (1979) 52 ILR 303.
49
See ARSIWA, Art 50(2)(b): ‘A State taking countermeasures is not
relieved from fulfilling its obligations…(b) to respect the inviolability of
diplomatic or consular agents, premises, archives and documents’. See
the commentary, paras (14)–(15).
50
The rationale for this was demonstrated by an incident in which
‘firefighters’ called to the US embassy in Moscow proved to be KGB
agents: Denza (3rd edn, 2008) 145.
51
Hellenic Lines Ltd v Moore, 345 F.2d 978 (DC Cir, 1965). Denza (3rd
edn, 2008) 151–3.
52
ICJ Reports 2005 p 168, 277–9. Also: Kenyan Diplomatic
Residence (2003) 128 ILR 632.
53
Iraq v Vinci Constructions (2002) 127 ILR 101.
54
Morgenstern (1948) 25 BY 236; 7 BD, 905–23; Ronning, Diplomatic
Asylum (1965); Satow (6th edn, 2009) 108–12.
55
Harvard Research Draft (1932) 26 AJILSupp 15, 62–6 (Art
6); Asylum(Columbia/Peru), ICJ Reports 1950 p 266, 282–6.
Cf Morgenstern (1948) 25 BY 236. Denza (3rd edn, 2008) 142 suggests
that a limited and temporary right to grant asylum exists in custom where
there is immediate danger to the life or safety of a refugee. Satow is more
circumspect, suggesting that the question remains an open one: Satow
(6th edn, 2009) 108–9.
56
20 February 1928, 132 LNTS 323, Art 2(1); also the Montevideo
Convention on Political Asylum, 26 December 1933, 165 LNTS 19.
57
Asylum, ICJ Reports 1950 p 266, 395; Haya de la Torre (Columbia v
Peru), ICJ Reports 1951 p 71. Cf the Organization of American States
Convention on Diplomatic Asylum, 28 March 1954, 1438 UNTS 104; 6
Whiteman, 436; Almeida de Quinteros and Quinteros Almeida v
Uruguay (1983) 79 ILR 168.
58
A similar event occurred in 1989 with respect to East German
refugees seeking asylum in West German embassies in Czechoslovakia
and Poland: Denza (3rd edn, 2008) 142–3; Satow (6th edn, 2009) 111–
12.
59
7 Whiteman 389–92; Cohen (1948) 25 BY 404; Hardy (1968) 49;
Satow (6th edn, 2009) 113–19. Cf In re Estate of King Faisal II, 199
NYS.2d 595 (Surr Ct, 1966). Also: Fayed v Al-Tajir [1988] 1 QB 712.
60
VCDR, Art 24.
61
VCDR, Art 27(2). Denza (3rd edn, 2008) 189–99, 225–6. On the issue
of waiver (by way of analogy): Shearson Lehman Bros v Maclaine
Watson & Co Ltd (No 2) [1988] 1 All ER 116.
62
VCDR, Art 27(3); also Art 27(4). Also: Denza (3rd edn, 2008) 227–48.
63
ICJ Reports 1980 p 3, 14, 36.
64
E.g. UKMIL (1985) 56 BY 446, 459; UKMIL (1987) 58 BY 548, 566,
570.
65
ILC Ybk 1989/II, 8.
66
Partial Award:Diplomatic Claim—Ethiopia’s Claim 8 (2005) 26 RIAA
407, 423–4.
67
Denza (3rd edn, 2008) 197.
68
7 BD 785; Giuliano (1960) 100 Hague Recueil 81, 111, 120–2; Denza
(3rd edn, 2008) 162–5; Satow (6th edn, 2009) 122–6. Also: Fatemiv
United States, 192 A.2d 535 (1963).
69
Agbor v Metropolitan Police Commissioner [1969] 2 All ER 707.
70
Aziz v Aziz;HM The Sultan of Brunei intervening [2008] 2 All ER 501.
Further: Denza (3rd edn, 2008) 263–4; Satow (6th edn, 2009) 125.
71
[2008] 2 All ER 501, 522. A protest outside an embassy does not
prima facie constitute an attack on the dignity of the mission, provided it
does not obstruct the ordinary business of the embassy: Boos v Barry,
798 F.2d 1450 (DC Cir, 1986).
72
The jurisdiction of the sending state applies in principle: Hardy (1968)
55; Denza (3rd edn, 2008) 321–3; VCDR, Art 31(4).
73
Dickinson v Del Solar [1930] 1 KB 376; Regele v Federal
Ministry (1958) 26 ILR 544; Fatemi v United States, 192 A.2d 535
(1963); Empson v Smith [1966] 1 QB 426; Bonne & Company X v
Company Y (1970) 69 ILR 280; Armon v Katz (1976) 60 ILR 374. Also:
Satow (6th edn, 2009) 128–33.
74
Further: UKMIL (1981) 52 BY 431.
75
Generally: 4 Hackworth 515; 7 BD 756; Giuliano (1960) 100
Hague Recueil 81, 91–2; 4 Rousseau 200–2; Satow (6th edn, 2009)
129–30.
76
Further: Tehran Hostages, ICJ Reports 1980 p 3, 37.
77
UKMIL (1985) 56 BY 363, 451; Denza (3rd edn, 2008) 83–6; Satow
(6th edn, 2009) 129–30.
78
Generally: Giuliano (1960) 100 Hague Recueil 81, 92–104; 4
Rousseau, 197–200, 206–9; Denza (3rd edn, 2008) 280–313; Satow (6th
edn, 2009) 130–3. On proceedings begun before immunity
applied: Ghosh v D’Rozario [1963] 1 QB 106.
79
Intpro Properties (UK) Ltd v Sauvel [1983] 2 All ER 495.
80
VCDR, Art 42 provides that ‘a diplomatic agent shall not in the
receiving state practise for personal profit any professional or commercial
activity’. The exception in VCDR, Art 31(1) applies (a) to cases in which
the receiving state allows exceptions to the operation of VCDR, Art 42;
and (b) to activities of members of the staff not of diplomatic rank.
81
VCDR, Art 31(3).
82
ILC Ybk 1958/II, 98. Cf 7 BD 798.
83
E.g. De Andrade v De Andrade (1984) 118 ILR 299; Re P (No
2) [1998] 1 FLR 1027, 1035; In re B (a child) [2003] 2 WLR 168. Further:
Satow (6th edn, 2009) 133.
84
85
Denza (3rd edn, 2008) 241.
85
Hardy (1968) 64–7; van Panhuys (1964) 13 ICLQ 1193; Dinstein
(1966) 15 ICLQ 76; Harvard Research (1932) 26 AJIL Supp 15, 97–9,
104–6, 136–7; Niboyet (1950) 39 Rev crit DIPriv 139; Giuliano (1960)
100 Hague Recueil 81, 166–80; ILC Ybk 1956/II, 145; Parry, Cambridge
Essays (1965) 122, 127–32; Denza (3rd edn, 2008) 438–43; Satow (6th
edn, 2009) 139–40. Also: Zoernsch v Waldock [1964] 2 All ER
256; Foreign Press Attaché (1962) 38 ILR 160; Tabatabai (1983) 80 ILR
388; Propend Finance Pty Ltd v Sing [1997] EWCA Civ 1433.
86
Zoernsch v Waldock [1964] 2 All ER 256.
87
This is similar to the situation with respect to state immunity ratione
materiae and ratione personae: further chapter 22. On the interaction
between state and diplomatic immunity: Denza (2008) 102 PAS 111.
88
Also: VCDR, Arts 37(2), (3), 38(1).
89
Denza (3rd edn, 2008) 439–43.
90
Former Syrian Ambassador to the German Democratic
Republic (1997) 115 ILR 595.
91
The court regarded it as immaterial that the acts in question may have
fallen outside the scope of VCDR, Art 3: ibid, 605–7.
92
Kerley (1962) 56 AJIL 88, 120–1. Cf Re Cummings (1958) 26 ILR
549; Caisse Industrielle d’Assurance Mutuelle v Consul Général de la
République Argentine (1972) 45 ILR 381.
93
Knab v Republic of Georgia et al (1998) 1998 US Dist LEXIS 8820.
94
Generally: Satow (6th edn, 2009) 141–50.
95
VCDR, Arts 31(3) and 32(4).
96
VCDR, Arts 23 and 34. Cf Art 37 concerning the family of the agent
and administrative, technical, and service staff.
97
VCDR, Art 36. Cf Art 37.
98
VCDR, Art 35. Cf Art 37.
99
VCDR, Art 33. Cf Art 37.
100
VCDR, Art 31(2). Cf Giuliano (1960) 100 Hague Recueil 81, 118–19;
VCDR, Art 37.
101
101
On VCLT Art 34(e) and the dispute over road user charges (e.g. the
London congestion charge): Denza (3rd edn, 2008) 370–3; Satow (6th
edn, 2009) 144–5.
102
Hardy (1968) 74–80; Giuliano (1960) 100 Hague Recueil 81, 141–65;
7 Whiteman 260–70; Wilson (1965) 14 ICLQ 1265; Denza (3rd edn,
2008) 390–425; Satow (6th edn, 2009) 155–67.
103
VCDR, Art 37(1). There had been some inconsistent practice in
relation to diplomatic agents apart from heads of mission: Gutteridge
(1947) 24 BY 148; cf Giuliano (1960) 100 Hague Recueil 81, 142.
104
Gutteridge (1947) 24 BY 148; Giuliano (1960) 100 Hague Recueil 81,
153–8.
105
On the previous position: Giuliano (1960) 100 Hague Recueil 81,
159–62.
106
In re C (an infant) [1958] 2 All ER 656; Dutch Diplomat
Taxation (1980) 87 ILR 76; Re P (No 1) [1998] 1 FLR 625.
Generally: UKMIL (1978) 49 BY 368; UKMIL (1985) 56 BY 441; 4
Rousseau 196–7; O’Keefe (1976) 25 ICLQ 329; Brown (1988)
37 ICLQ 53.
107
Generally: 7 Whiteman, 436–45; Lauterpacht, 3 International
Law (1970) 433–57; Denza (3rd edn, 2008) 426–50; Satow (6th edn,
2009) 137–40.
108
E.g. Magdalena Steam Navigation Co v Martin [1859] 2 El & El
94; Musurus Bey v Gadban [1894] 2 QB 352; Re Suarez (1944) 12 ILR
412; Shaffer v Singh, 343 F.3d 324 (DC Cir, 1965); Propend Finance Pty
v Sing [1997] EWCA Civ 1433.
109
Denza (3rd edn, 2008) 437–8; Satow (6th edn, 2009) 138–9.
110
UKMIL (1984) 55 BY 405, 458–9.
111
LeGault (1983) 21 CYIL 307; Denza (3rd edn, 2008) 437.
112
Denza (3rd edn, 2008) 330–48; Satow (6th edn, 2009) 153–7.
113
The Resolution on Consideration of Civil Claims adopted by the
Vienna Conference on 14 April 1961 recommended that the sending
state should waive immunity ‘in respect of civil claims of persons in the
receiving State when this can be done without impeding the performance
of the functions of the mission’. It recommended, further, ‘that in the
absence of waiver the sending state should use its best endeavours to
bring about a just settlement of claims’.
114
For the position in English law: Engelke v Musmann [1928] AC
433; R v Madan [1961] 2 QB 1; Diplomatic Privileges Act 1964 s2(3);
7 BD 867–75. Also: Armon v Katz (1976) 60 ILR 374; Nzie v
Vessah (1978) 74 ILR 519; Public Prosecutor v Orhan Olmez (1987) 87
ILR 212.
115
High Commissioner for India v Ghosh [1960] 1 QB 134.
116
Denza (3rd edn, 2008) 337.
117
Ibid, 343.
118
No F-1446–97 (DC Sup Ct). Further: Murphy (1999) 93 AJIL 485.
119
VCDR, Art 32(1).
120
Cf Satow (6th edn, 2009) 135–6.
121
(1978) 74 ILR 519. Further: Gustavo JL (1987) 86 ILR 517; Public
Prosecutor v JBC (1984) 94 ILR 339.
122
8 BD; Harvard Research (1932) 26 AJIL Supp 189, 189–449; 4
Hackworth 655–949; 7 Whiteman 505–870; 1 Guggenheim 512–15;
ILC Ybk 1961/II, 55, 89, 129; Zourek (1962) 106 Hague Recueil, 357;
3 Répertoire suisse 1552–93; Digest of US Practice (1979) 654–75; 4
Rousseau 211–63; Angelet, ‘Consular Treaties’ (2010) MPEPIL; Lee &
Quigley (3rd edn, 2008); Satow (6th edn, 2009) chs 18–20.
123
ILC Ybk 1961/II, 110ff. There are differing views on the ambit of the
customary law: compare Zourek (1962) 106 Hague Recueil 357,
451; Beckett (1944) 21 BY 34; 8 BD 146, 151, 158, 164; Lee & Quigley
(3rd edn, 2008).
124
8 BD 125; Beckett (1944) 21 BY 34; ILC Ybk 1961/II, 109. Cf 7
Whiteman, 744. Lee & Quigley dispute this, and identify the emergence
of three schools of thought prior to 1963 (no inviolability, conditional
inviolability, and absolute inviolability): Lee & Quigley (3rd edn, 2008)
353–6.
125
125
Princess Zizianoff v Kahn and Bigelow (1927) 4 ILR 384, 386–7;
8 BD 146; Beckett (1944) 21 BY 34; 7 Whiteman 770; ILC Ybk 1961/II,
117; Parry, Cambridge Essays (1965) 122, 127–32, 154; Lee & Quigley
(3rd edn, 2008) 388–93.
126
Also: Hallberg v Pombo Argaez (1963) 44 ILR 190; Lee & Quigley
(3rd edn, 2008) 440–5.
127
8 BD 103–22, 214; 7 Whiteman 739; ILC Ybk 1961/II, 115; Lee &
Quigley (3rd edn, 2008) 433–6.
128
For a substantial bibliography of consular treaties: Lee & Quigley (3rd
edn, 2008) Appendix I.
129
24 April 1963, 596 UNTS 261 (187 parties). For comment: do
Nascimento e Silva (1964) 13 ICLQ 1214; Torres Bernardez (1963)
9 AFDI 78; and generally Lee & Quigley (3rd edn, 2008). Substantial
parts of the VCCR are incorporated into UK law: Consular Relations Act
1968 (UK) s1. Further: R (B and Others) v Secretary of State [2005] QB
643.
130
VCCR, Arts 40 (Protection of consular officers), 33 (Inviolability of
consular archives and documents), 43 (Immunity from jurisdiction in
respect of acts performed in the exercise of consular functions), and 52
(Exemption from personal services and contributions). Also: L v R (1977)
68 ILR 175; United States v Lo Gatto (1995) 114 ILR 555; Canada v
Cargnello (1998) 114 ILR 559.
131
Generally: Lee & Quigley (3rd edn, 2008) chs 28–34.
132
Moreover, when pre-trial detention is necessary under VCCR, Art
41(1), proceedings against the consular official must be instituted with
minimal delay: VCCR, Art 41(3).
133
134
Satow (6th edn, 2009) 251.
Cf Republic of Argentina v City of New York, 25 NY.2d 252
(1969); Heaney v Government of Spain, 445 F.2d 501 (2nd Cir, 1971); 7
Whiteman 825–8; Digest of US Practice (1974) 183; Digest of US
Practice (1975) 249–50, 259–60. Also: Honorary Consul of X v
Austria (1986) 86 ILR 553.
135
135
Cf generally the conclusions drawn as to benefits of the VCCR by
Lee & Quigley (3rd edn, 2008) 585–9.
136
ICJ Reports 1979 p 3, 31, 33, 41.
137
Vienna Convention on Consular Relations (Paraguay v US),
Provisional Measures, ICJ Reports 1998 p 248; LaGrand (Germany v
US), ICJ Reports 2001 p 466; Avena and Other Mexican Nationals
(Mexico v US), ICJ Reports 2004 p 12; Request for Interpretation of the
Judgment of 31 March 2004 in the Case Concerning Avena and Other
Mexican Nationals (Mexico v US) (Mexico v US), ICJ Reports 2009 p 3.
138
7 Whiteman 33–47; ILC Ybk 1964/II, 67; ILC Ybk 1965/II, 109;
ILC Ybk 1966/II, 125; ILC Ybk 1967/ II, 1; Bartos (1963) 108
Hague Recueil 425; Waters, The Ad Hoc Diplomat (1963); Kalb,
‘Immunities, Special Missions’ (2011) MPEPIL.
139
8 December 1969, 1400 UNTS 231. Also: GA Res 2531(XXIV), 8
December 1969. On the substance of the Convention: Paszkowski
(1974) 6 Pol YIL 267; Donnarumma (1972) 8 RBDI 34.
140
Khurts Bat v Investigating Judge of the German Federal Court [2011]
EWHC 2029 (Admin).
141
Wood (2012) 16 MPUNYB.
142
Denza (3rd edn, 2008) 256–63.
143
ICJ Reports 2005 p 168, 277–9.
144
Denza (3rd edn, 2008) 259. If this was the strategy, it appeared to
work; Egypt did not appoint another ambassador to Iraq until 2009.
145
14 December 1973, 1035 UNTS 167. Further: Internationally
Protected Persons Act 1978 (UK); Duff v R (1979) 73 ILR 678. Also:
Organization of American States Convention to Prevent and Punish the
Acts of Terrorism Taking the Form of Crimes Against Persons and
Related Extortion That Are Of International Significance, 2 February
1971, 10 ILM 255.
(p. 415) 18 Unilateral Acts; Estoppel
1. Introduction
States are corporate entities that necessarily operate under a regime of
representation. In order to hold them bound by consensual obligations,
the normal rules of authorization under treaty law apply; in order to
attribute conduct to them for the purposes of determining their
compliance with such obligations, the normal rules of attribution for the
purposes of state responsibility apply. In addition to these normal rules,
there are other cases where states’ consent is given, assumed or
implied.
With respect to the rules of representation in treaty law, the organs
authorized to represent the state include the head of state, head of
government, and minister of foreign affairs, but may also include heads of
executive departments and diplomatic representatives, depending on the
circumstances.1 But the legal boundaries of the state are not to be
defined in simple terms. Specific authority may be given to individuals
constituting delegations to conferences or special missions to foreign
governments. The existence of authority in a particular instance may be a
matter regulated in part by international law. Thus, in treaty-making and
in the making of unilateral declarations a foreign minister is presumed to
have authority to bind the state.2 Moreover, the quality of ‘the state’ varies
on a functional basis: thus ‘sovereign immunity’ from other state
jurisdictions extends to the agents of the state, including its armed forces
and warships, and state property in public use.
References
(p. 416) 2. Unilateral Acts
(A) In General
The conduct of governments may not be directed towards the formation
of agreements but still be capable of creating legal effects. The formation
of customary rules and the law of recognition are two of the more
prominent (though very different) categories concerned with the
‘unilateral’ acts of states. Some authors have been prepared to bring
unilateral acts (including protest, promise, renunciation, and recognition)
within a general concept of ‘legal acts’, either contractual or unilateral,
based upon the manifestation of will by a legal person.3 This approach
may provide a framework for the discussion, but it may also obscure the
variety of legal relations involved.4 Analysis in terms of categories of
‘promise’, ‘protest’, and the like tends to confuse conditioning facts and
legal consequences. Much will depend on the context in which a
‘promise’ or ‘protest’ occurs, including the surrounding circumstances and
the effect of relevant rules of law.5
It is true that treaties can be very different one from another yet the
category ‘law of treaties’ makes practical as well as analytical sense. It is
possible that the same is true of unilateral acts, understood not just as
any act of a single state but in some narrower (still to be determined)
sense of ‘acts implicating the good faith of the state’, or more simply as
‘commitments and representations implying commitment’. Yet while at
some level the principle of good faith undoubtedly applies to unilateral
acts as well as to bilateral or multilateral ones, the question which
commitments or which representations engage the good faith of the state
can only be decided situationally. It has never been the case that they all
did, still less can this be true in the age of the twice-daily press
conference and the internet.
(B) Formal Unilateral Declarations
A state may evidence a clear intention to accept obligations vis-à-vis
certain other states by a public declaration which is not an offer or
otherwise dependent on reciprocal (p. 417) undertakings from its
addressees.6 Apparently the terms of such a declaration will determine
the conditions under which it can be revoked.7 In 1957 the Egyptian
government made a Declaration on the Suez Canal and the
Arrangements for its Operation in which certain obligations were
accepted. The Declaration was communicated to the UN SecretaryGeneral together with a letter which explained that the Declaration was to
be considered as an ‘international instrument’ and it was registered as
such by the Secretariat.8 Such a declaration may implicitly or otherwise
require acceptance by other states as a condition of its validity or at least
of its effectiveness.9 In short, it seems that while a bare (unaccepted)
declaration may be valid, it can produce its intended effects only if
accepted (expressly or implicitly).
In the Nuclear Tests cases the International Court held that France was
legally bound by publicly given undertakings, made at the highest level of
government, to cease carrying out atmospheric nuclear tests.10 The
criteria of obligation were: the intention of the state making the
declaration that it should be bound according to its terms; and that the
undertaking be given publicly. There was no requirement of a quid pro
quo or of any subsequent acceptance or response.11 As a result of the
French
References
(p. 418) undertaking, so interpreted by the Court, the dispute, it held, had
disappeared and ‘the claim advanced…no longer has any object’. While
the principle applied—that a unilateral declaration may have certain legal
effects—is not new, when the declaration is not directed to a specific
state or states but is expressed erga omnes, as here, the detection of an
intention to be legally bound, and of the structure of such intention,
involves very careful appreciation of the facts. In any event the principle
recognized in the Nuclear Tests cases was applied by the Court
in Nicaragua12 and also by the Chamber in Frontier Dispute (Burkina
Faso/Mali).13
(C) Withdrawal of Unilateral Commitments
Principle 10 of the ILC Guiding Principles applicable to unilateral
declarations of states provides:
A unilateral declaration that has created legal obligations for the State making the
declaration cannot be revoked arbitrarily. In assessing whether a revocation would be
arbitrary, consideration should be given to:…
(b) The extent to which those to whom the obligations are owed have relied on
such obligations…14
Unilateral declarations may reflect commitments but they are not treaties,
and are not subject to the relatively strict VCLT regime for termination or
withdrawal.
(D) Evidence of Inconsistent Rights
Unilateral declarations involve, in principle at least, concessions which
are intentional, public, coherent, and conclusive of the issues. However,
acts of acquiescence and official statements may have probative value
as admissions of rights inconsistent with the claims of the declarant, such
acts individually not being conclusive. In Eastern Greenland the Court, as
a subsidiary matter, attached significance to the fact that Norway had
become a party to several treaties which referred to Danish sovereignty
over Greenland as a whole, Norway having contended that Danish
sovereignty had not been extended over the whole of Greenland.15
(E) Opposable Situations
Once a dispute is already known to exist, the other party may damage its
case seriously by recognition or acquiescence. Consent by way of
acquiescence, recognition, or implied consent may have the result of
conceding as lawful the rights claimed.
References
(p. 419) A similar role appears when a state is claiming rights on a basis
which is plausible to some extent, and yet rests either on ambiguous
facts, or on a contention that the law has changed or provides an
exception in its favour. Here acquiescence involves an acceptance of the
legal basis of the opponent’s claim, which can perhaps be more readily
proved than in the case of a state faced by an undoubted usurper.16
(F) Acquiescence17
As a substantive legal concept, acquiescence has its origins in the
common law, although the civil law has a similar procedural notion. It
crystallized in the system of international law through international
adjudication.18
In 1910, an arbitral tribunal constituted to delimit the maritime boundary
between Norway and Sweden upheld Swedish sovereignty based on its
uncontested extensive practice in the disputed region, including the
fishing of lobsters, the conduct of measurements, and the stationing of a
light boat, concluding that:
It is a settled principle of the law of nations that a state of things which actually exists and
has existed for a long time should be changed as little as possible.19
The International Court upheld the legality of the straight baselines
established by Norway, reasoning in similar vein that:
The notoriety of the facts, the general toleration of the international community, Great
Britain’s position in the North Sea, her own interest in the question, and her prolonged
abstention would in any case warrant Norway’s enforcement of her system against the
United Kingdom.20
The requirements for acquiescence include: the notoriety of the facts and
claims, their prolonged tolerance by the state(s) whose interests are
specially affected, and general toleration by the international community.
As to the burden of proof, it has been said that the inference from the
conduct amounting to acquiescence may be ‘so probable as to almost
certain’.21 Acquiescence has so far been applied mostly to claims over
References
(p. 420) territory. As tacit acceptance justifying an assumption of consent
over time, however, it falls within the broader category of unilateral acts.
In the North Sea Continental Shelf cases the International Court stated
that unilateral assumption of the obligations of a convention by conduct
was ‘not lightly to be presumed’, and that ‘a very consistent course of
conduct’ was required in such a situation.22 But in the Jurisdiction Phase
of Nicaragua the Court held that Nicaragua’s ‘constant acquiescence’ in
the publication of its purported optional clause declaration in the
Court’s Yearbook ‘constitutes a valid mode of manifestation of its intent to
23
recognize the compulsory jurisdiction of the Court’.23 Apparently this
amounted to ‘a very consistent course of conduct’.
3. Estoppel
(A) The Place of Estoppel in International Law
There is a tendency to refer to any representation or conduct having legal
significance as creating an estoppel, precluding the author from denying
the ‘truth’ of the representation, express or implied. By analogy with
principles of municipal law, and by reference to decisions of international
tribunals, Bowett has stated the essentials of estoppel to be: (a) an
unambiguous statement of fact; (b) which is voluntary, unconditional, and
authorized; and (c) which is relied on in good faith to the detriment of the
other party or to the advantage of the party making the statement.24 A
considerable weight of authority supports the view that estoppel is a
general principle of international law, resting on principles of good faith
and consistency.25 The essence of estoppel is the element of conduct
which causes the other party, in reliance on such conduct, detrimentally
to change its position or to suffer some prejudice.26 But it is necessary
References
(p. 421) point out that estoppel in municipal law is regarded with great
caution, and that the ‘principle’ has no particular coherence in
international law, its incidence and effects not being uniform.27 Thus
before a tribunal, the principle largely defined may operate to resolve
ambiguities and as a principle of equity and justice:28 here it becomes a
part of the reasoning. Elsewhere, its content is taken up by the principles
noted in the last section, which are interrelated.29
A good example of judicial application of the broader version of the
principle is Arbitral Award by the King of Spain. Nicaragua challenged the
validity of the award: the Court held the award valid and added that it was
no longer open to Nicaragua, which, by express declaration and by
conduct had recognized the award as valid, to challenge it.30 This and
similar cases support a particular type of estoppel, but the rule concerned
could operate independently of any general doctrine.
4. Relation Between Unilateral Acts and
Estoppel
The relation between unilateral acts and estoppel needs clarification. The
two institutions were imported in international law from the systems of
civil and common law respectively, and grew up separately, shading into
each other. Even though they are both rooted in the principle of good
faith, unilateral acts are in their essence statements or representations
intended to be binding and publicly manifested as such, whereas
estoppel is a more general category, consisting of statements or
representations not intended as binding nor amounting to a promise,
whose binding force crystallizes depending on the circumstances.
The issue of rescinding unilateral acts is also distinct from estoppel. A
binding unilateral act may be revoked with a good justification when it has
not been relied upon or when the circumstances have materially
changed. Given that the essential circumstance for creating the legal
obligation in the first place is the publicity of the unilateral act, publicity is
also a condition for the notice of its withdrawal, subject to the particular
circumstances. There is no such requirement of publicity for an estoppel
to arise. A common feature of both is that there is no reason to assume
that either is subject to the rules of terminating obligations under the law
of treaties.
References
(p. 422) Estoppel should be distinguished from acquiescence too: the
latter involves allowing an existing legal or factual situation to continue in
circumstances where objection could and should have been made,
leading, in the course of time, to the assumption of consent.
Acquiescence is not subject to the requirement of detrimental reliance but
is a promise implied in the context of lapse of time. In the words of the
Chamber in Gulf of Maine:
[T]he concepts of acquiescence and estoppel, irrespective of the status accorded to
them by international law, both follow from the fundamental principles of good faith and
equity…[They] are, however, based on different legal reasoning, since acquiescence is
equivalent to tacit recognition manifested by unilateral conduct which the other party may
interpret as consent, while estoppel is linked to the idea of preclusion.31
To summarise:
(1) There is a principle of estoppel recognized in international law.
(2) An estoppel is precisely not a unilateral act; it is a
representation the truth of which the entity on whose behalf it is
made is precluded from denying in certain circumstances, notably
reliance and detriment.
(3) By contrast a unilateral act in the sense of international law is
a commitment intended to be binding and accepted as such.
(4) The principle of good faith in international law is not exhausted
by these two doctrines; what further role it may play, however,
depends on the facts and circumstances.
References
Footnotes:
1
(1965) 7 BD; Sørensen (1960) 101 Hague Recueil 1, 58–68;
ILC Ybk 1962/II, 164–6. In Armed Activities on the Territory of the Congo
(New Application: 2002)(Democratic Republic of the Congo v Rwanda),
the ICJ noted, ‘that with increasing frequency in modern international
relations other persons representing a State in specific fields may be
authorized by that State to bind it by their statements in respect of
matters falling within their purview. This may be true, for example, of
holders of technical ministerial portfolios exercising powers in their field of
competence in the area of foreign relations, and even of certain officials’:
Jurisdiction and Admissibility, ICJ Reports 2006 p 6, 27.
2
Cf Legal Status of Eastern Greenland (1933) PCIJ Ser A/B No 53, 71;
McNair, The Law of Treaties (1961) 73–5; VCLT, 23 May 1969, 1155
UNTS 331, Art 7(2)(a). Also Land
andMaritimeBoundarybetweenCameroon and Nigeria, ICJ Reports 2002
p 303, 430–1 (Maroua Declaration).
3
Especially Suy, Les Actes juridiques unilatéraux en droit international
public (1962); Jacqué, Éléments pour une théorie de l’acte juridique en
droit international public, (1972). Further: Martin, L’Estoppel en droit
international public (1979); Sicault (1979) 83 RGDIP 633; Skubiszewski,
in Bedjaoui (ed), International Law (1991) 221; Reisman & Arsanjani
(2004) 19 ICSID Rev-FILJ 328; D’Aspremont Lynden (2005)
109 RGDIP 163; Rodríguez-Cedeño & Torres Cazorla, ‘Unilateral Acts of
State in International Law’ (2007) MPEPIL; Suy, Mélanges Salmon (2007)
631.
4
The ILC’s work on unilateral acts was in part vitiated by unfounded
assumptions as to the uniform character of unilateral acts as promises:
Rodríguez-Cedeño, First Report on Unilateral Acts of States,
ILC Ybk 1998/II(1), 319–39; Second Report, ILC Ybk 1999/II(1), 195–
213; Third Report, ILC Ybk 2000/II(1), 247–82; Fourth Report,
ILC Ybk 2001/II(1), 115–136; Fifth Report, ILC Ybk 2002/II(1), 91–116;
Sixth Report, A/CN.4/534; Seventh Report, A/CN.4/542; Eighth Report,
A/CN.4/557; Ninth Report, A/CN.4/569 & Add.1. The ILC work
nevertheless ended with a series of Guiding Principles Applicable to
Unilateral Declarations of States Capable of Creating Legal Obligations
with Commentaries, ILC Ybk 2006/II(2), 369.
5
Reuter (1961) 103 Hague Recueil 425, 547–82; Charney (1985)
56 BY 1; Breutz, Der Protest Im Völkerrecht (1997); Eick, ‘Protest’
(2006) MPEPIL; Suy & Angelet, ‘Promise’ (2007) MPEPIL.
6
See McNair (1961) 11; Brierly, ILC Ybk 1950/II, 227; Lauterpacht,
ILC Ybk 1953/II, 101–2; South West Africa, Preliminary Objections, ICJ
Reports 1962 p 319, 402–4, 417–18; (Judge Jessup); Fitzmaurice (1957)
33 BY 229; Lachs (1980) 169 Hague Recueil 9, 198; Virally, in Bedjaoui
(1991) 241; Charpentier, in Makarczyk (ed), Theory of International Law
at the Threshold of the 21st Century (1996) 367;
Torres, Losactosunilaterales de los estados (2010).
7
Cf Fitzmaurice, ILC Ybk 1960/III, 79 (Art 12), 81 (Art 22), 91, 105; ILC
Guiding Principles applicable to unilateral declarations of States capable
of creating legal obligations, with commentaries thereto,
ILC Ybk 2006/II(2), Principle 10 and commentary, 380–1. See
further Military and Paramilitary Activities in and Against Nicaragua,
Jurisdiction and Admissibility, ICJ Reports 1984 p 392, 415; Fisheries
Jurisdiction (Germany v Iceland), Jurisdiction, ICJ Reports 1973 p 49,
63; Gabčíkovo-Nagymaros Project, ICJ Reports 1997 p 7, 64.
8
Declaration of the Government of the Republic of Egypt on the Suez
Canal and the arrangements for its operation, 24 April 1957, 265 UNTS
299. See also the Declaration of 18 July 1957 recognizing the ICJ’s
jurisdiction ‘over all legal disputes that may arise under…paragraph 9 (b)’
of the substantive Declaration: 272 UNTS 299.
9
Cf the Austrian Declaration of 1955, contained in the Constitutional
Federal Statute on Austria’s permanent neutrality, 26 October
1955, Bundesverfassungsgesetz, BGBl 1955, 4 November 1955, No
211; Kunz (1956) 50 AJIL 418.
10
Nuclear Tests (Australia v France), ICJ Reports 1974 p 253, 267–
71; Nuclear Tests (New Zealand v France), ICJ Reports 1974 p 457,
472–5. For comment: Bollecker-Stern (1974) 20 AFDI 299; Thierry (1974)
20 AFDI 286; Franck (1975) 59 AJIL 612; Sur (1975)
79 RGDIP 972; Dupuy (1977) 20 GYIL 375; Hough & Macdonald (1977)
20 GYIL 337; Ruiz (1977) 20 GYIL 358; Scobbie (1992)
41 ICLQ 808; Carbone (1975) 1 It YIL 166; Rubin (1977) 71 AJIL 1; de
Visscher, in Makarczyk (ed), Essays in Honour of Manfred Lachs (1984)
459; Thirlway (1989) 60 BY 1, 8–17.
11
But cf Nuclear Tests (Australia v France), ICJ Reports 1974 p 253,
373–4 (Judge de Castro, diss), accepting the principle, but deciding on
the facts that the French statements lay within ‘the political domain’. The
Court’s own unease at its solution can be detected in the unprecedented
provision (ibid, 272) for either claimant to ask for an ‘examination of the
situation’ if France did not comply with the Court’s soi-disant commitment.
In response to later French underground tests, New Zealand did so, but
failed on the basis that the 1974 commitment concerned atmospheric
tests only: Request for an Examination of the Situation in Accordance
with Paragraph 63 of the Court’s Judgment of 20 December 1974
in Nuclear Tests (New Zealand v France), ICJ Reports 1995 p 288.
12
12
Nicaragua, ICJ Reports 1986 p 14, 132. Also ibid, 384–5 (Judge
Schwebel, diss).
13
ICJ Reports 1986 p 554, 573–4. Also Filleting within the Gulf of St
Lawrence (Canada v France) (1986) 19 RIAA 225, 265.
14
ILC Ybk 2006/II(2), Principle 10, 380.
15
PCIJ Ser A/B No 53, 70–1. Also Minquiers and Ecrehos (France/UK),
ICJ Reports 1953 p 47, 66–7, 71–2.
16
Fisheries (UK v Norway), ICJ Reports 1951 p 116, 138–9.
17
MacGibbon (1957) 33 BY 115; Bowett (1957) 33 BY 176,
197; Thirlway (1989) 60 BY 1, 29–49; Sinclair, in Lowe & Fitzmaurice
(eds), Jennings Essays (1996) 104; Antunes, Estoppel, Acquiescence
and Recognition in Territorial and Boundary Dispute
Settlement (2000); Chan (2004) 3 Chin JIL 421; Tams, in Crawford, Pellet
& Olleson (eds), The Law of International Responsibility (2010) 1035.
18
E.g. Maritime Boundary Dispute between Norway and Sweden (1910)
4 AJIL 226, 233–5; Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116,
138–9; Right of Passage over Indian Territory (Portugal v India), ICJ
Reports 1960 p 6, 39–44; Temple of Preah Vihear (Cambodia v
Thailand), ICJ Reports 1962 p 6, 23–33; Continental Shelf (France v
UK) (1977) 18 RIAA 3, 68–74; Land, Island and Maritime Frontier Dispute
(El Salvador v Honduras), ICJ Reports 1992 p 351, 401–9, 566–
70; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and
South Ledge (Malaysia/Singapore), ICJ Reports 2008 p 12, 50–1, 120–1.
19
Maritime Boundary Dispute between Norway and Sweden (1910)
4 AJIL 226, 233.
20
Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116, 139.
21
Maritime Boundary Dispute between Norway and Sweden (1910)
4 AJIL 226, 234.
22
North Sea Continental Shelf (Federal Republic of
Germany/Netherlands; Federal Republic of Germany/ Denmark), ICJ
Reports 1969 p 3, 25.
23
23
Nicaragua, ICJ Reports 1984 p 392, 411–13; also ibid, 413–15, on
issues of estoppel. Further: ibid, 458–60 (Judge Ruda); 463–5 (Judge
Mosler); 483–9 (Judge Oda); 527–31 (Judge Ago); 595–600 (Judge
Schwebel, diss).
24
Bowett (1957) 33 BY 176, 202. This author takes some pains to
isolate estoppel from other things. Further: Dominicé, in Battelli
(ed), Recueil d’étudesenhommageàPaul Guggenheim(1968) 327, 364–
5; Vallée (1973) 77 RGDIP 949; Martin (1979); Thirlway (1989) 60 BY 1,
29–49; Youakim, Estoppel in International Law (1994); Sinclair, in Lowe &
Fitzmaurice (1996) 104; Cottier & Müller, ‘Estoppel’ (2007) MPEPIL.
25
Temple, ICJ Reports 1962 p 6, 61–5 (Judge Fitzmaurice); Delimitation
of the Maritime Boundary in the Gulf of Maine Area(Canada/US), ICJ
Reports 1984 p 246, 305. Also: Bowett (1957) 33 BY 176,
202; MacGibbon (1958) 7 ICLQ 468; Lauterpacht, Development (1958)
168–72; ILC Ybk 1963/II, 212–13; Waldock, ibid, 39–40; ILC Ybk 1966/II,
239. Cf Fauvarque-Cosson, La Confiance légitime et l’Estoppel (2007).
26
Gulf of Maine, ICJ Reports 1984 p 246, 309. Also El Salvador v
Honduras, Application to Intervene by Nicaragua, ICJ Reports 1990 p 92,
118; Cameroon v Nigeria, Preliminary Objections, ICJ Reports 1998 p
275, 303–4. Also: Golshani v Islamic Republic of Iran (1993) 29 Iran–US
CTR 78; Chevron-Texaco v Ecuador, 30 March 2010, 161–2, available
at www.italaw.com.
27
Temple, ICJ Reports 1962 p 6, 39 (Judge Alfaro), 143 (Judge
Spender, diss).
28
Cf Cheng, General Principles (4th edn, 1987) 141–58. Also:
Schwarzenberger (1955) 87 Hague Recueil 191, 312–14; Bowett (1957)
33 BY 176, 195; Lauterpacht (1958) 168–72.
29
Comments of Venturini (1964) 112 Hague Recueil 363, 370–4. Bowett
uses the principle of reliance to isolate ‘simple’ or ‘true’ estoppel from the
other principles. In some contexts, such as renunciation, reliance is not
active in determining legal consequences: see Pulau Batu Puteh, ICJ
Reports 2008 p 12. Nor does his distinction as to statements of fact have
much viability. Further: Vallée (1973) 77 RGDIP 949.
30
30
Arbitral Award Made by the King of Spain on 23 December 1906
(Honduras v Nicaragua), ICJ Reports 1960 p 192, 213. Cf Johnson
(1961) 10 ICLQ 328.
31
Gulf of Maine, ICJ Reports 1984 p 246, 305.
(p. 423) 19 Succession to Rights and Duties
1. Introduction and Overview
(A) State Succession as a Category1
State succession occurs when there is a definitive replacement of one
state by another in respect of sovereignty over a given territory, that is, a
replacement in conformity with international law.2 The political events
concerned include dismemberment of an existing state, secession or
separation of part of a state, decolonization, merger of existing states into
a new state, and cession or annexation of state territory. Succession is
predicated upon the permanent displacement of sovereign power, and
thus temporary changes resulting from belligerent occupation, agency, or
grants of exclusive possession of territory by treaty are excluded.
When the sovereignty of one state replaces that of another, a number of
legal problems arise. Is the successor state bound by all or any of the
treaties of the predecessor? Do the inhabitants of the territory concerned
automatically become nationals of the successor? Is the successor state
affected by international claims involving the predecessor, by the
predecessor’s national debt and its other obligations under the legal
system now supplanted? It is important to note that the phrase ‘state
succession’ is employed to describe an area, a source of problems: it
does not connote any overriding principle, or even a presumption, that a
transmission or succession of legal rights and duties occurs in a given
case. The phrase ‘state succession’ is well established, (p. 424) despite
the misleading municipal law analogy of continuity of legal personality in
an individual’s general property, passing as an inheritance, involving a
complete or ‘universal succession’. Generally speaking the only event of
‘universal succession’ in international law is state continuity—life rather
than death.
State succession is an area of uncertainty and controversy. Much of the
practice is equivocal and could be explained on the basis of special
agreement or of rules distinct from the concept of legal succession.
Indeed, it is possible to take the view that not many settled rules have yet
emerged.
Nonetheless, the ILC has sought to codify the law on state succession
leading to two separate conventions; the 1978 Vienna Convention on the
Succession of States in Respect of Treaties3 and the 1983 Vienna
Convention on the Succession of States in Respect of Property Archives
and Debts.4 Both were criticized for departing from established
international law,5 they have attracted a limited number of ratifications
(the 1978 Convention only entered into force in 1996 and has 22 parties;
the 1983 Convention is not yet in force).6 The territorial transformations
of the last two decades however, revealed a tendency to rely on them or
at least some of their provisions to resolve controversial questions, for
want of any better articulation of the legal principles involved.7
(B) The Pre-Emption of Issues Byagreement
When multilateral peace treaties constituted new states or reallocated
territory (e.g. in 1815, 1919–23, or 1947) they would often regulate
succession problems as part of the territorial rearrangement. The Treaty
of St Germain provided for the responsibility of the successor states of
the Austro-Hungarian monarchy for its public debts.8 Provisions of the
Italian Peace Treaty of 1947 determined questions concerning the
relations of Italy and its former colony of Libya.9 On other occasions the
conduct of states might produce informal novation by means of unilateral
declarations, legislation, or other expressions of position.10 In 1958 when
the United Arab Republic was created by the union
References
(p. 425) of Egypt with Syria, the Minister of Foreign Affairs of the Union
said in a Note to the Secretary-General: ‘…all international treaties and
agreements concluded by Egypt or Syria with other countries will remain
valid within the regional limits prescribed on their conclusion and in
accordance with the principles of international law’.11 Such a declaration
of itself could not bind third states parties to treaties with Egypt and Syria.
However, third states acquiesced in the position adopted by the United
Arab Republic and the US expressly took note of the assurance
given.12 New states may become parties to treaties by notification of
succession the validity of which is accepted by other states, by
international organizations and, if necessary, by the Court.13
The devolution of treaty rights and obligations has often been the subject
of agreements between the predecessor and successor states.14 Such
agreements promote certainty and stability of relations.15 They also
create certain problems. First, the agreement may appear to be a part of
the bargain exacted by the outgoing colonial power at independence and
the new state may seek legal means of disputing its validity and
application. Secondly, third states cannot be bound by inheritance
agreements unless by express declaration or conduct they agree to be
bound.16
2. The forms of Territorial Change
There is clearly some relation between the form of territorial change and
the transmissibility of rights and duties. Thus the ‘moving treaty
boundaries’ principle holds that a transfer of territory from state A to state
B is presumed not to affect existing treaties: state B’s treaties cover the
transferred territory whereas state A’s cease to apply. However, there
seems to be little value in establishing, as major categories, concepts of
cession, dismemberment, merger, decolonization, and the like.17 It may
be
References
(p. 426) that decolonization attracts special principles but there is
no general significance in the distinction between decolonization,
dismemberment, secession, and annexation. Too ready a reliance on
such distinctions is deceptive. Particular factual situations are presented
as though they are legal categories. Distinctions are made in the legal
rules adduced which may seem anomalous or invidious. Thus O’Connell
employs the category of ‘annexation’ and accepts the view that
annexation terminates ‘personal’ treaties.18 But he adopts a different
approach to survival of treaties in the case of ‘grants of independence’
without explaining why there should be such a different outcome.
The events producing a change of sovereignty may nevertheless have
legal relevance in particular circumstances. Thus if the successor
repudiates or acknowledges continuity with the predecessor this may
produce the effect of preclusion in respect of consequential legal matters.
There may well be a presumption against continuity in cases where the
political and legal machinery of change has involved relinquishment of
sovereignty followed by reallocation in the form of a multilateral territorial
settlement, as in the case of the peace treaties in Europe in 1919–
20.19 Similarly, there will be a presumption against continuity in the case
of a forcible secession or its equivalent, as with the creation of
Israel.20 The reference to either acknowledged or repudiated continuity
with a predecessor state raises problems for third states, which are not
bound to accept the determination of the putative successor.21 The
recognition of continuity by third states must be an important element
since continuity is very much a matter of election and appreciation.22 This
is also true where complex political change produces a double
succession within a short space of time, as with India and Pakistan,
Senegal and Mali. Normally, these matters will be regulated by treaty:
thus Turkey as a new political entity was treated as continuous with the
Ottoman Empire by the Treaty of Lausanne.23
(A) The Distinction between Continuity and Succession
In short, there is a ‘fundamental distinction’ between state continuity and
state succession; ‘continuity’ denoting cases where the same state
continues to exist, succession
References
(p. 427) referring to the replacement of one state by another with respect
to a particular terri-tory.24 The question of continuity precedes that of
succession: state continuity presupposes stability in legal relations. In
other words, where the ‘same’ state continues to exist, the question of
succession to rights and obligations does not arise for that state.25
Nonetheless, distinguishing cases of identity from succession can
present difficulties, particularly where drastic changes have occurred to a
state’s territory, government, or population.26 This question can be
particularly problematic as concerns membership of international
organizations.27 Because there are no well-defined criteria for state
extinction, subjective factors may be pertinent, including the state’s own
claim to continuity, as well as recognition by other states.28 Despite the
precarious character of determinations of identity and continuity, a
number of criteria have been advanced to resolve questions of state
continuity. Marek relies on the criterion of formal ‘independence’ (or the
preservation of the concerned state’s legal order) as the
touchstone.29 Another possibility is to refer to the basic criteria for
statehood (such as continuity of territory and population), applied in the
context of claim, recognition, and acquiescence by third states.30
(B) Dismemberment of Federal States31
Much has been written about the dissolution, or partial dissolution, of the
USSR and the SFRY. In the case of the Russian Federation, the principal
surviving component of the USSR, the international community accepted
the Russian assertion made in communications to the UN and a circular
note to all states with diplomatic missions in Moscow that Russia was the
continuator of the former Soviet Union. Russia was also accepted by the
members of the Security Council as the continuator of the USSR. Russia
assumed all treaty obligations and consolidated the debts and property
abroad of the USSR (although Soviet property and indebtedness might
have been apportioned among all the former republics).
(p. 428) In the wake of the disintegration of Yugoslavia, Serbia and
Montenegro, then denominated the Federal Republic of Yugoslavia,
declared that it was the sole successor of the former Yugoslavia. This
position was unacceptable to the European Community and its member
states.32 Apparently as a consequence of this difference, Yugoslavia was
prevented from exercising many of its rights as a member of the UN, but
without affecting for the time being its status as a party to the Statute of
the International Court of Justice. Yet after 2001 a completely different
view was taken of the situation; the Court for its part oscillated.33 It is
difficult to give legal articulation to these episodes.
34
(C) The Doctrine of Reversion34
It is possible that continuity by virtue of general recognition by third states
can arise in the form of reversion. The successor state may be regarded
as recovering a political and legal identity displaced by an intervening
period of dismemberment or colonization.35 Such cases will be rare and
the consequences of a doctrine of reversion may create a threat to the
security of legal relations: thus the successor may not consider itself
bound by territorial grants or recognition of territorial or even
demographic changes imposed by the predecessor.36 The suggestion
has been made that, quite apart from recognition by third states, in a
case of post-colonial reversion, the principle of self-determination may
create a presumption in favour of the successor state.37 This raises large
issues of the relation between peremptory norms (including selfdetermination) and the law relating to state succession.
3. State Successsion and Municipal Legal
Relations
After a change of sovereignty various issues may be raised in the context
of municipal law, viz., the destiny of the property of the ceding or former
state, the continuity of
References
(p. 429) the legal system, the status of private property rights, including
rights deriving from contracts and concessions concluded under the
former law, and issues of nationality. Hyde and others have maintained
that the municipal law of the predecessor remains in force until the new
sovereign takes steps to change it.38O’Connell and others support a
principle of vested or acquired rights, that is, that a change of sovereignty
has no effect on the acquired rights of foreign nationals.39 The principle
has received support from tribunals,40 but it is a source of confusion
since it is question-begging and is used as the basis for a variety of
propositions. For some, it means simply that private rights are not
affected by the change of sovereignty as such. For others it appears to
mean that the successor state faces restrictions on its powers in relation
to private rights of aliens additional to the ordinary rules of international
law governing treatment of aliens in cases not involving a succession.
Moreover, writers oft en fail to relate the concept of acquired rights to
other principles affecting a change of sovereignty. The new sovereign
receives the same sort of sovereignty as the transferor had, and this
involves normal powers of legislation and jurisdiction. Survival of the old
law depends on the consent of the new sovereign, not in the sense that
there is a legal vacuum pending such consent, but in the sense (a) that
the constitutional or public law of the territory will necessarily change to
accommodate the new situation, and (b) that the new sovereign has,
prima facie, the same freedom to change the law as the old sovereign
had.41Indeed some proponents of acquired rights formulate the principle
in a qualified form. Thus O’Connell states that ‘the principle of respect for
acquired rights in international law is no more than a principle that
change of sovereignty should not touch the interests of individuals more
than is necessary’, and goes on to say that the successor state which
alters or terminates acquired rights must comply with the minimum
standards of international law.42 In the case of decolonization, the
continuation of the pre-independence economic structure, which
commonly involves extensive foreign ownership of major resources,
would produce a situation in which political independence and formal
sovereignty were not matched by a normal competence to regulate the
national economy. The declaration of the UN
References
(p. 430) General Assembly on ‘Permanent Sovereignty over Natural
Resources’43 contains a proviso thus:
Considering that nothing in paragraph 4 below in any way prejudices the position of any
Member State on any aspect of the question of the rights and obligations of successor
States and Governments in respect of property acquired before the accession to
sovereignty of countries formerly under colonial rule.…
This is a reservation of competence; it does not give the new
sovereign carte blanche.
(A) State Property44
It is generally accepted that succession to the public property of the
predecessor state located on the territory in question is a principle of
customary international law and the jurisprudence of the Permanent
Court of International Justice supports this posi-tion.45 Another approach
would be to say that the ‘principle’ is really a presumption that acquisition
of state property is inherent in the grant of territorial sovereignty and is a
normal consequence of the acquisition of sovereignty in situations apart
from a grant or cession. The position is in general confirmed by the
Vienna Convention on Succession of States in respect of State Property,
Archives and Debts of 1983,46 although the Convention propounds a
rather different legal regime for the case where the successor is a ‘newly
independent state’.
In practice, the partition of state property among successor states may
raise difficulties, which are usually resolved by negotiations and bilateral
agreements based on the principle of ‘equity’. Differences of opinion
regarding the form of change in sovereignty for the purposes of
regulating succession to property (particularly the distinction between
dissolution and secession) may lead to conflict,47 and in some cases, the
very definition of ‘state property’ may be disputed: the competing claims
of the SFRY’s successors relating to ‘social property’ is a case in point.48
References
(p. 431) In the aftermath of the USSR’s break-up, special solutions were
required to address the partition of nuclear forces and other military
property, deviating significantly from both the principles of territoriality and
equitable apportionment. Despite initial protest, it was eventually agreed
that Russia would maintain control of all nuclear weapons, while other
members of the Commonwealth of Independent States in whose
territories nuclear weapons had been located (Belarus, Kazakhstan, and
Ukraine) would commit to total nuclear disarmament. Agreement was
reached through negotiations and guarantees of compensation.49 The
Black Sea fleet, located in the Crimean peninsula (which had been
transferred to Ukraine in 1954) was partitioned between Russia (81.7%)
and Ukraine (18.3%), with Russia maintaining the right to use the
Ukrainian port of Sevastopol for 20 years.50
51
(B) Public Law Claims and Public debts51
It follows from what has already been said that the successor state has a
right to take up fiscal claims belonging to the former state which relate to
the territory in question, including the right to collect taxes due. Much
more a matter of controversy is the fate of the public debts of the
replaced state. It may be that there is no rule of succession
established,52 but some writers have concluded that in cases of
annexation or dismemberment (as opposed to cession, i.e. where the
ceding state remains in existence), the successor is obliged to assume
the public debts of the extinct state.53 Zemanek confines succession to
the situation where before independence an autonomous political
dependency has, through the agency of the metropolitan power,
contracted a ‘localized debt’ which is automatically attributed to the new
state aft er separation.54 In practice, however, municipal courts will
enforce obligations of the predecessor state against the successor only
when the latter has recognized them,55 although recognition could take
References
(p. 432) the form of unqualified continuation of the legal system under
which the debts arise. The 1983 Vienna Convention provides for the
passing of the state debt to the successor state (as a general principle)
with a reduction according to an equitable proportion in the cases of
transfer of part of a state, secession, or dissolution of a state (Articles 36
to 37, 39 to 41). However, when the successor state is a ‘newly
independent State’, no state debt shall pass, except by agreement (and
then only if certain other conditions are satisfied) (Article 38). According
to Article 2(1)(e) a ‘newly independent State’ means a successor state
the territory of which had been ‘a dependent territory for the international
relations of which the predecessor State was responsible’. This
distinction between ‘newly independent states’ and other successor
states is problematic, especially when it has such categorical effects.
(C) State Contracts and Concessions
As in the case of all rights acquired under the municipal law of the
predecessor state, rights deriving from state contracts and concessions
are susceptible to change by the new sovereign. Limitations on such
interference derive from relevant international standards concerning
treatment of aliens or human rights in general.56However, a number of
writers57 state the principle that the acquired rights of a concessionaire
must be respected by a successor state.58 There is a certain anomaly in
the selection of concessions as beneficiaries of the principle, which could
be related to other matters, including contracts of employment and
pension rights. It will be appreciated that judicial pronouncements to the
effect that the mere change of sovereignty does not cancel concession
rights59 do not give support to the acquired rights doctrine in the form
that after the change of sovereignty the new sovereign must maintain the
property rights of aliens acquired before the change of sovereignty.
In the Lighthouses Arbitration between France and Greece certain claims
were concerned with an alleged Greek responsibility for breaches of
concessions occurring prior to extension of Greek sovereignty over the
autonomous state of Crete.60 The tribunal also approached the matter on
the basis of recognition and adoption by Greece of the breach of the
concession contract occurring before and even after the change of
sovereignty over the island in question. The tribunal said:
Greece, having adopted the illegal conduct of Crete in its recent past as autonomous
state, is bound, as successor state, to take upon its charge the financial consequences
of the breach of the concession contract. Otherwise, the avowed violation of a contract
committed by one
References
(p. 433) of the two States…with the assent of the other, would, in the event of their
merger, have the thoroughly unjust consequence of cancelling a definite financial
responsibility and of sacrificing the undoubted rights of a private firm holding a
concession to a so-called principle of non-transmission of debts in cases of territorial
succession, which in reality does not exist as a general and absolute principle. In this
case the Greek Government with good reason commenced by recognising its own
responsibility.61
The short point remains that territorial change of itself neither cancels nor
confers a special status on private rights: they gain no regulatory or other
immunity post-succession but they continue subject to the international
minimum standard of protection (as to which see chapter 29). Where the
private rights involve a substantial foreign control of the economy, some
modern exponents of the principle of vested or acquired rights are moved
to formulate qualifications concerning ‘odious concessions’ or
‘concessions contrary to the public policy of the successor state’,62 for
example a major concession granted on the eve of independence and
involving vital resources. Qualified to this degree, the principle would
seem to lose its viability.
(D) Nationality63
The problem involved is that of the nationality of inhabitants of the
transferred territory. In resolving that problem little or no help is to be
derived from the categories of the law of state succession.64
(i) Nationality as a consequence of territorial transfer
In fact the evidence is overwhelmingly in support of the view that the
population follows the change of sovereignty in matters of nationality. At
the end of the First World War the peace treaties contained a number of
provisions, more or less uniform in content, relating to changes of
sovereignty which exhibited all the variations of state succession.65 Thus
Article 4 of the Minorities Treaty signed at Versailles provided as follows:
Poland admits and declares to be Polish nationals ipso facto and without the
requirements of any formality persons of German, Austrian, Hungarian or Russian
nationality who were born in the said territory of parents habitually resident there, even if
at the date of the coming into force of the present Treaty they are not themselves
habitually resident there.
References
(p. 434) Nevertheless, within two years after coming into force of the present Treaty,
these persons may make a declaration before the competent Polish authorities in the
country in which they are resident stating that they abandon Polish nationality, and they
will then cease to be considered as Polish nationals. In this connexion a declaration by a
husband will cover his wife and a declaration by parents will cover their children under 18
years of age.66
The Treaties of St Germain,67 Trianon,68 and Paris69 had similar
provisions, except that the Treaties of St Germain and Trianon refer to
persons born of parents ‘habitually resident or possessing rights of
citizenship [pertinenza–heimatrecht] as the case may be there’. The
precedent value of such provisions is considerable in view of their
uniformity and the international character of the deliberations preceding
the signature of these treaties. The objection that they give a right of
option does not go far, since the option is a later and additional
procedure. Only when the option is exercised does the nationality of the
successor state terminate: there is no statelessness. The Italian Peace
Treaty of 1947 provided that Italian citizens domiciled in territory
transferred would become citizens of the transferee; and a right of option
was given.70
State practice evidenced by the provisions of internal law is to the same
effect. The law of the UK has been expressed as follows by McNair:
The normal effect of the annexation of territory by the British
Crown, whatever may be the source or cause of the annexation,
for instance, a treaty of cession, or subjugation by war, is that
the nationals of the State whose territory is annexed, if resident
thereon, become British subjects; in practice, however, it is
becoming increasingly common to give such nationals an
option, either by the treaty of cession or by an Act of Parliament,
to leave the territory and retain their nationality.71
In view of the state practice it is hardly surprising to find works of
authority stating that persons attached to territory change their nationality
when sovereignty changes hands.72 Somewhat surprising is the caution
of Weis. In his view:
there is no rule of international law under which the nationals of
the predecessor State acquire the nationality of the successor
State. International law cannot have such a direct effect, and the
practice of States does not bear out the contention that this is
inevitably the result of the change of sovereignty. As a rule,
however, States have conferred their nationality on the former
nationals of the predecessor State, and in this regard one may
say that there
References
(p. 435) is, in the absence of statutory provisions of municipal
law, a presumption of international law that municipal law has
this effect.73
But if international law can create a presumption it can create a rule:
whether it is complied with is not the question, but in fact practice bears
out the rule. Variations of practice, and areas of doubt, certainly exist, but
they are hardly inimical to the general rule. Some difficulties merely
concern modalities of the general rule itself. Thus, the position of
nationals of the predecessor state who at the time of the transfer are
resident outside the territory the sovereignty of which changes is
unsettled. The rule probably is that, unless they have or forthwith acquire
a domicile in the transferred territory, they do not acquire the nationality
of the successor state.74 This, it seems, is the British doctrine.75
The general principle is that of a substantial connection with the territory
concerned by citizenship, residence or family relation to a qualified
person. This principle may be a special aspect of the general principle of
the effective link.76 However, it could be argued that for the individuals
concerned, at the moment of transfer, the connection with the successor
state is fortuitous. Whatever the merits of this, the link, in cases of
territorial transfer, has special characteristics. Territory, both socially and
legally, is not to be regarded as an empty plot: with obvious geographical
exceptions, it connotes population, ethnic groupings, loyalty patterns,
national aspirations, a part of humanity, or, if one is tolerant of the
metaphor, an organism. To regard a population, in the normal case, as
related to particular areas of territory, is not to revert to forms of feudalism
but to recognize a human and political reality which underlies modern
territorial settlements. Sovereignty denotes responsibility, and a change
of sovereignty does not give the new sovereign the right to dispose of the
population concerned at
References
(p. 436) discretion. The population goes with the territory: on the one
hand, it would be unlawful, and a derogation from the grant, for the
transferor to try to retain the population as its own nationals (though a
right of option is another matter). On the other hand, it would be unlawful
for the successor to take any steps which involved attempts to avoid
responsibility for conditions on the territory, for example by treating the
population as de facto stateless. The position is that the population has a
‘territorial’ or local status, and this is unaffected whether there is a
universal or partial successor or whether there is a cession, that is, a
‘transfer’ of sovereignty, or a relinquishment by one state followed by a
disposition by international authority.
In certain cases other considerations arise. Where one of the states
concerned claims continuity, retention of the former nationality may be
more common, but in the event the result may not be very different than
in cases of succession.77 The question of the legality of population
transfer (apart from voluntary exercise of rights of option) may also
arise.78
(ii) Diplomatic claims and the principle of continuous nationality
In principle the requirement of continuity of nationality between the time
of injury and the presentation of the claim (or, in cases of resort to judicial
settlement, the making of the award) is not satisfied if the individual
concerned suffers a change of nationality as a result of a change of
territorial sovereignty.79 At least one of the arguments used to support the
continuity principle, namely that it prevents the injured citizen choosing a
protector by a shift of nationality, has no application in such a case. The
rule of continuous nationality would have adversely affected the whole
citizen population of Tanzania after the voluntary union of Tanganyika and
Zanzibar. In some cases of transfer the predecessor and successor
states may act jointly in espousing claims on behalf of persons of their
nationality successively, but this solution is inapplicable in case of
mergers and dismemberment of states. The correct solution in principle
References
(p. 437) is surely a rule of substitution, putting the successor in charge of
claims belonging to the predecessor. This would be consonant with the
idea of an effective change of sovereignty.
In Panevezys–Saldutiskis Railway the Permanent Court was concerned
with an Estonian claim and a Lithuanian counterclaim relating to the
property of a company established under the law of the Russian Empire
and operating in the territory which in 1918 constituted the new states of
Estonia and Lithuania.80 In 1923 the company became an Estonian
company with registered offices in Estonia. Estonia subsequently claimed
compensation for assets of the company which Lithuania had seized in
1919; the Court upheld Lithuania’s preliminary objection of nonexhaustion of local remedies. Judge van Eysinga (dissenting) referred to
the ‘inequitable results’ of a rule requiring continuity and concluded that it
had not been established that the rule could not resist the normal
operation of the law of state succession.81
The continuous nationality rule was considered by the ILC in its work on
diplomatic protection. Article 5 of the ILC Articles of 2006 provides:
1. A State is entitled to exercise diplomatic protection in respect of
a person who was a national of that State continuously from the
date of injury to the date of the official presentation of the claim.
Continuity is presumed if that nationality existed at both these
dates.
2. Notwithstanding paragraph 1, a State may exercise diplomatic
protection in respect of a person who is its national at the date of
the official presentation of the claim but was not a national at the
date of injury, provided that the person had the nationality of a
predecessor State or lost his or her previous nationality and
acquired, for a reason unrelated to the bringing of the claim, the
nationality of the former State in a manner not inconsistent with
international law.
3. Diplomatic protection shall not be exercised by the present
State of nationality in respect of a person against a former State of
nationality of that person for an injury caused when that person
was a national of the former State of nationality and not of the
present State of nationality.82
According to this formulation, a change of nationality by reason of state
succession would not preclude espousal by the successor state against a
third state, but would do so against the predecessor state.
References
(p. 438) 4. State Succession: Fields of Operation
A common fault of writers is to classify issues primarily as ‘succession’
and consequently to consider particular issues in isolation from the matrix
of rules governing the subject-matter, which might involve, for example,
the law of treaties, state responsibility, or the constitution of an
international organization. The need to consider problems precipitated by
a change of sovereignty in relation to the particular body of legal
principles is well illustrated by the law of treaties.
(A) Succession to Treaties: in General83
It seems to be generally accepted that in cases of ‘partial succession’,
that is, annexation or cession, where the predecessor state is not
extinguished, no succession to treaties can occur. Existing treaties of the
successor state will apply prima facie to the territories concerned. Other
problems should be approached on the basis that the law of treaties is
the prime reference and the fact of succession fitted into that context.
When a new state emerges it is not bound by the treaties of the
predecessor by virtue of a mandatory rule of state succession. In many
instances the termination of a treaty affecting a state involved in territorial
changes will be achieved by the normal operation of provisions for
denunciation. However, as a matter of general principle a new state, ex
hypothesi a non-party, is not bound by a treaty, and other parties to a
treaty are not bound to accept a new party, as it were, by operation of
law.84
The rule of non-transmissibility applies both to secession of ‘newly
independent states’ (i.e. to cases of decolonization) and to other
appearances of new states by the union or dissolution of states. The
distinctions drawn by the ILC and, subsequently, the Vienna Convention
on Succession of States in respect of Treaties85are not reflected in the
practice of states.86 This is not to deny that considerations of principle
and
References
(p. 439) policy may call for a different outcome in the case of a union of
states (see the Vienna Convention, Articles 31 to 33). However, the
distinction between secession and the dissolution of federations and
unions is unacceptable, both as a proposition of law and as a matter of
principle.
To the general rule of non-transmissibility (the ‘clean slate’ doctrine)
certain important exceptions are said to exist.
(i) Boundary treaties
Many jurists regard boundary treaties as a special case depending on
clear considerations of stability in territorial matters. It would seem that
the question depends on normal principles governing territorial transfers:
certainly the change of sovereignty does not as such affect
boundaries.87 This principle is expressed in the Vienna Convention of
1978 (Article 11). A Chamber of the International Court has referred to
the obligation to respect pre-existing boundaries in the event of a state
succession.88
(ii) ‘Objective regimes’ and localized treaties in general
A number of writers, including O’Connell89 and McNair,90 have taken the
view that there is a category of dispositive or localized treaties
concerning the incidents of enjoyment of a particular piece of territory in
the matter of demilitarized zones, rights of transit, navigation, port
facilities, and fishing rights. This category of treaties in their view is
transmissible. The subject-matter overlaps considerably with the topic of
international servitudes considered elsewhere. Others consider that there
is insufficient evidence in either principle or practice for the existence of
this exception to the general rule.91 First, much of the practice is
equivocal and may rest on acquiescence. Secondly, the category is
difficult to define92 and it is not clear why the treaties apparently included
should be treated in a special way. Supporters of the alleged exception
lean on materials which are commonly cited as evidence of an
independent concept of state servitudes.93 However, the Vienna
Convention of 1978 provides that a succession of states shall not affect
obligations, or rights, ‘relating to the use of territory’, and ‘established by
a treaty for the benefit of any territory of a foreign state and considered
as attaching to the territories in question’ (Article 12). In GabčíkovoNagymaros the International Court had to determine whether the relevant
Treaty of 1977 between
References
(p. 440) Hungary and Czechoslovakia had survived the dissolution of
Czechoslovakia.94 The Court held that Article 12 ‘reflects a rule of
customary international law’ and, further, that the content of the 1977
Treaty indicated that it must be regarded as establishing a territorial
regime within the meaning of Article 12.95
In fact the 1977 Treaty at stake in that case, although subsequent to the
treaty establishing the boundary,96could have been regarded as a treaty
‘relating to the regime of a boundary’ in the sense of Article 11(b) of the
1978 Vienna Convention, if only because it modified the boundary in a
minor respect contingent on the functioning of the upstream barrage. If
the boundary survives the succession, it is reasonable that provisions
which form part of the boundary regime should equally survive. But it was
unnecessary for the Court to express a view as to such wider and less
certain categories as ‘servitudes’, and a fortiori ‘localized treaties’,
especially where the localization takes the form merely of prior
application to the transferred territory.
(iii) Other categories
Most writers deny that other exceptions exist. But some consider that in
the case of general multilateral or ‘law-making’ treaties there is a
transmission. O’Connell’s view is that in such cases the successor state
is obliged by operation of law.97 However, practice rather indicates that
the successor has an option to participate in such a treaty in its own right
even if this is not expressly envisaged in the final clauses of that
treaty.98 It is probable that the regular acquiescence of states parties to
such conventions and of depositaries in such informal participation
indicates an opinio juris. However, there is some difficulty in producing a
99
definition of general multilateral treaties for this pur-pose.99 Common
characteristics are the generality of participation allowed for in the
conventions themselves, and the primary object of providing a
comprehensive code of rules or standards for the particular subjectmatter.100 Recent state practice indicates that successor states will often
accept human rights101 and arms control agreements102 of their
predecessors, although this is arguably contingent on the successor
state’s consent rather than a rule of automatic succession.103
References
(p. 441) The Vienna Convention of 1978 adopts a fairly restrictive view of
participation in multilateral treaties but allows an informal regime of
participation for ‘newly independent States’ on the basis of ‘a notification
of succession’ (see Articles 10, 17 to 23, 31).
In practice problems of succession are usually dealt with by devolution
agreements, or by original accession to conventions by new states or
unilateral declarations. In 1961 the government of Tanganyika made a
declaration containing the following elements: (a) valid bilateral treaties
would continue to apply for two years unless abrogated or modified
earlier by mutual consent; (b) at this point they would prima facie be
regarded as having terminated unless they would have been succeeded
to under international law; (c) multilateral treaties would be reviewed
individually and decisions taken; (d) during the review period any party to
a multilateral treaty which has prior to independence been applied or
extended to Tanganyika could, on the basis of reciprocity, rely against
Tanganyika on its terms.104 This approach has been adopted, with
variations, by a considerable number of states.105 Such declarations
combine a general recognition that unspecified treaties do survive as a
result of the application of rules of customary law with an offer of a grace
period in which treaties remain in force on an interim basis without
prejudice to the declarant’s legal position but subject to
reciprocity.106 Practice based on such declarations suggests that what
eventually occurs is either termination or novation as the case may be in
respect of the particular treaty.
The practice concerning optional continuance of treaties is not confined
to multilateral treaties.107 The question arises whether the practice in
relation to multilateral conventions is to be interpreted on the basis that
the new state has the option to participate as of right. The answer is,
probably, yes, but this can only be tentative; the practice of continuity of
treaties of all types may be explicable simply as a novation of the original
treaty by the new state and the other pre-existing contracting party or
parties.108
(iv) Succession to Signature, Ratification, and Reservations
Within the existing possibilities of inheritance of treaties, there is
considerable practice to the effect that a new state can inherit the legal
consequences of a ratification by a predecessor of a treaty which is not
yet in force. But it is doubtful if a new state can
References
(p. 442) inherit the consequences of signature of a treaty which is subject
to ratification.109 A further issue, as yet unsettled, is whether a state
continuing the treaties of a predecessor inherits the latter’s reservations
or is entitled to make reservations and objections of its own.110 The
Vienna Convention of 1978 contains a number of provisions creating
privileges in matters of this kind in favour of ‘newly independent States’
(Articles 18 to 20).
(B) Succession to Responsibility
The preponderance of authority is in favour of a rule that responsibility for
an international delict is extinguished when the responsible state ceases
to exist either by annexation or voluntary cession.111 Such liability is
considered ‘personal’ to the responsible state and remains with that state
if it continues to exist after the succession. This reasoning is, however,
less cogent in relation to voluntary merger or dissolution. Nor does it
apply when a successor state accepts the existence of succession. In
the Lighthouses Arbitration it was held in connection with one claim that
Greece had by conduct adopted an unlawful act by the predecessor state
and recognized responsibility.112
A related problem is the status of the local remedies rule when, for
example, a taking of property has occurred under the law of the previous
sovereign. If continuity of the legal system is accepted, does it follow that
the successor by providing ‘local remedies’ is precluded from contesting
succession to responsibility after such remedies have been exhausted?
The answer is presumably in the negative as a matter of international
law, though if the responsible unit or entity is continuous before or aft er
succession as a matter of national law, the remedy will survive, and with
it the possibility of a denial of justice claim if the remedy is subsequently
denied on discriminatory or other unreasonable grounds.
(C) Membership of International Organizations113
The prevailing view is that principles of succession to treaties have no
application to membership of international organizations. The position is
determined by the
References
(p. 443) provisions of the constitution of the particular organization. In the
case of the United Nations all new states are required to apply for
membership. However, the member states by general tacit agreement or
acquiescence may treat particular cases in a special way. When an
original member of the UN, India, was partitioned in 1947 the General
Assembly treated the surviving India as the ‘successor’ to pre-1947 India
and admitted Pakistan as a new member of the UN. The union of Egypt
and Syria in 1958 as the United Arab Republic and the dissolution of the
union in 1961 resulted in informal consequential changes in membership
of the UN rather than formal admission, in the first instance of the United
Republic, and in the second instance of the restored Egypt (still called the
United Arab Republic) and Syria.114
Because a state’s membership of an international organization is
personal in character, the only way it can be retained is in the case of
legal continuity. The form of territorial change is therefore central to the
question of succession to membership in an international organization, as
evidenced by the contrasting cases of Russia and SerbiaMontenegro.115 Where, despite one or more secessions, the ‘rump’ state
continues to exist (such as the former USSR) it may assert continued
membership of the organization; on the other hand, dissolution
presupposes the complete extinction of the predecessor state and all
successors must apply for membership as new states.116 This was the
position taken in relation to the former Yugoslavia, and eventually
acquiesced in by Serbia.
5. Conclusions
The territorial transformation of Europe in the aftermath of the collapse of
communism (the unification of Germany, dissolution of the USSR,
Yugoslavia, and Czechoslovakia) prompted scholars to revisit the
question of state succession, largely overlooked since the ILC’s
attempted codification coinciding with the end of decolonization. The
significant number of recent state successions has resulted in an
attempted re-engagement with the law of state succession in a different
historical and political context, based on the accumulation of relatively
consistent state practice over the past two decades.
Although the law of state succession remains politicized and is strongly
influenced by interactions with other areas of law, it is possible to discern
certain legal rules. In (p. 444) the area of state succession with respect to
treaties, there has been a slow move towards greater continuity of treaty
relations,117 or at least less by way of unilateral repudiation of the
predecessor’s treaties. Alongside this has been the consolidation of an
obligation to enter into negotiations in good faith where readjustments of
legal relations are necessary.118 Various principles can also be identified
in the areas of state succession to public property (with exceptions for
special categories of property) and membership in international
organizations. Nonetheless, traditional critiques of the law of state
succession, which posit it as an area dominated by politically-motivated
bilateral agreements rather than generalizable rules, predicated upon the
will of ‘new’ states rather than general principles of automaticity, and
dependent on recognition by other states parties, retain their salience.
Footnotes:
1
1
Principal items of literature include: Zemanek (1965) 116
Hague Recueil 187; O’Connell, State Succession in Municipal Law and
International Law (1967); O’Connell (1970) 130 Hague Recueil 95;
Bedjaoui (1970) 130 Hague Recueil 455; Verzijl, 7 International Law in
Historical Perspective (1974); Crawford (1980) 51 BY 1;
Makonnen, International Law and the New States of Africa (1983);
Makonnen (1986) 200 Hague Recueil 93; Hafner & Kornfeind (1996)
1 Austrian RIEL 1; Stern (1996) 262 Hague Recueil 164; Eisemann &
Koskenniemi (eds), State Succession (2000); Craven, The
Decolonisation of International Law (2007).
2
Where territory is occupied by a state in circumstances not in
accordance with international law (or at least with a peremptory norm),
there is no succession and the regime is one of occupation pending
resolution of the problem: Ronen, Legal Aspects of Transition from Illegal
Territorial Regimes in International Law (2010), and further: chapter 27.
3
23 August 1978, 1946 UNTS 3.
4
7 April 1983, 22 ILM 306. The Convention was adopted by 54–11:11.
5
O’Connell (1979) 39 ZaöRV 730; Vagts (1992–93) 3 Va JIL 275, 295;
Stern (ed), Dissolution, Continuation and Succession in Eastern
Europe (1998).
6
See also ILC draft articles on nationality of natural persons in relation
to the succession of states, ILC Ybk 1999/II(2), 23–47; in Pronto &
Wood, The International Law Commission 1999–2009 (2010) IV, 75–126.
The draft articles were brought to the attention of governments by GA
Res 55/153, 12 December 2000, and finalized as a non-treaty text by GA
Res 66/469, 9 December 2011.
7
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997
p 7, 70–2; Badinter Commission, Opinion No 9 (1992) 92 ILR
203, Opinion No 12 (1993) 96 ILR 729, Opinion No 14 (1993) 96 ILR
723, Opinion No 15 (1993) 96 ILR 733; Partial Award:Prisoners of War—
Eritrea’s Claim 17 (2003) 26 RIAA 23, 38.
8
Principal Allied & Associated Powers-Austria, Treaty of St Germain-enLaye, 10 September 1919, 226 CTS 8, Art 203. Also: Administrative
Decision no 1 (1927) 6 RIAA 203; Ottoman Debt (1925) 1 RIAA 529.
9
9
Treaty of Peace with Italy, 10 February 1947, 49 UNTS 124; and
e.g. Italy v United Kingdom (1953) 25 ILR 2.
10
Waldock, ILC Ybk 1971/II(1), 149–53; ILC Ybk 1972/II, 272–7;
ILC Ybk 1974/II(1), 236–41. Also e.g. DC v Public Prosecutor (1972) 73
ILR 38 (continuity of post-1992 FRY); R v Director of Public Prosecutions,
ex parte Schwartz (1976) 73 ILR 44 (reliance on Jamaican constitutional
provision); M v Federal Department of Justice and Police (1979) 75 ILR
107 9 (continuity of 1880 Anglo-Swiss Extradition Treaty based on the
tacit acceptance of Switzerland and South Africa).
11
ILC Ybk 1958/II, 77.
12
2 Whiteman 959–62, 1014. The UAR dissolved in 1964 with similar
consequences in terms of treaty continuity: 2 O’Connell (1967) 71–4,
169–70.
13
Cf SC Res 757 (1992); SC Res 777 (1992); Application of the
Convention on the Prevention and Punishment of Genocide (Bosnia and
Herzegovina v Yugoslavia), Preliminary Objections, ICJ Reports 1996 p
595, 612. There the ICJ did not consider it necessary to decide whether
Bosnia and Herzegovina became a party to the Genocide Convention
through succession or accession after independence: ibid. It relied on the
‘object and purpose’ of the Genocide Convention to establish its
jurisdiction ratione tempore rather than an acceptance of Yugoslavia’s
notification of succession (indeed, it implicitly discounted the notification
of succession by applying the Convention retroactively: ibid, 617).
14
Lauterpacht (1958) 7 ICLQ 514, 524–30; 2 O’Connell (1967) 352–73.
15
ILA, The Effect of Independence on Treaties (1965) 191; 2 O’Connell
(1967) 154; Craven (2007) 122.
16
UK–Venezuela Agreement, 17 February 1966, 561 UNTS 321, Art
VIII; Waldock, Second Report, ILC Ybk 1969/II, 54–62; ILC Ybk 1972/II,
236–41; ILC Ybk 1974/II(1), 183–7; Craven (2007) 120–31.
17
But see Bedjaoui, ILC Ybk 1968/II, 100–1. Other ILC members
adopted a similar point of view: ILC Ybk 1969/I, 53ff.
18
2 O’Connell (1967) chs 2, 8. Luke O’Connell, Jennings (1967) 121
Hague Recueil 323, 447–8 regards ‘evolution towards independence’
within the British Commonwealth as creating a continuity in personality
with the pre-independence colonial government. This view is not reflected
in the relevant materials except in the rather different case where a
protectorate is held to have had international personality before the
subordinate status was removed: Zemanek (1965) 116
Hague Recueil 195, 228; Crawford, Creation of States (2nd edn, 2006)
307–10. Cf Rosenne (1950) 27 BY 267.
19
Cf Affaires des réparations allemande selon l’article 260 du Traité de
Versailles (1924) 1 RIAA 429, 441–4. Special provision was made in the
treaties for the maintenance of public debts.
20
UN Legis Series, Materials on Succession of States (1967)
38; Shimshon Palestine Portland Cement Factory Ltd v A-G (1950) 17
ILR 72.
21
2 Whiteman 758–9; 3 Répertoire suisse 1337–57.
22
DC v Public Prosecutor (1972) 73 ILR 38.
23
Ottoman Debt (1925) 1 RIAA 529, 571–4, 590–4, 599.
24
Cf Stern (1996) 262 Hague Receuil 9, 39; Crawford (2nd edn, 2006)
667–8.
25
Marek, Identity and Continuity of States in International Law (1968)
10; Mälksoo, Illegal Annexation and State Continuity (2003). But see
Craven (2007) 78–80.
26
The general rule is that internal changes of government do not affect a
state’s identity: Crawford (2nd edn, 2006) 678–80. Claims by the USSR
of discontinuity with Tsarist Russia were rejected.
27
Russia assumed the USSR’s place as a permanent member of the
SC: Müllerson (1993) 42 ICLQ 473, 475–8; Shaw (1994) 5 Fin YIL 34,
49–50; Craven (2007) 218–19. By contrast Serbia-Montenegro was
denied automatic UN membership as a continuator of Yugoslavia. The
Czech Republic and Slovakia agreed to reapply to UN membership as
new states; their attempt to divide between themselves Czechoslovakia’s
seats in the specialized agencies was rejected: Scharf (1995) 28 Cornell
ILJ 29, 30–1.
28
28
Bühler, in Eismann & Koskenniemi (2000) 187–201; Caflisch (1963)
10 NILR 337, 338. But see Crawford (2nd edn, 2006) 668.
29
Marek (1968) 188, 216.
30
Crawford (2nd edn, 2006) 670–1.
31
Schachter (1948) 25 BY 91, 101–9; Zemanek (1965) 116
Hague Recueil 181, 254; 2 O’Connell (1967) 183–211; 2 Whiteman
1016–27; Bühler, in Eisemann & Koskenniemi (2000) 187.
32
Badinter Commission, Opinion No 9 (1992) 92 ILR 203. For other
Opinions: Opinion No 11 (1992) 96 ILR 718; Opinion No 12 (1993) 96 ILR
723; Opinion No 13 (1993) 96 ILR 726; Opinion No 14 (1993) 96 ILR 729.
Also Federal Republic and National Bank of Yugoslavia v Republics of
Croatia, Slovenia, Macedonia and Bosnia-Herzegovina (1999) 128 ILR
627.
33
Further: Legality of the Use of Force (Serbia and Montenegro v
Belgium), ICJ Reports 2004 p 279; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v Serbia and Montenegro), ICJ Reports 2007 p 43; Croatia
v Serbia, ICJ Reports 2008 p 412.
34
Alexandrowicz (1969) 45 International Affairs 465; Jain (1969)
9 Indian JIL 525; Långström, in Eisemann & Koskenniemi (2000) 723,
730–3.
35
Cf the history of Poland and India: Crawford (2006) 697–9.
36
The major modern example is the Baltic States: Ziemele, State
Continuity and Nationality (2005); Crawford (2006) 689–90. Only limited
consequences flowed from recognition of pre-1940 continuity.
37
Right of Passage over Indian Territory (Portugal v India), ICJ Reports
1960 p 6, 93–6 (Judge Quintana, diss). Cf Bedjaoui, ILC Ybk 1968/II,
128. In the Red Sea Islands, the Yemeni argument based on reversion
was rejected on the facts: (1998) 114 ILR 1, 115–17. It is not clear that
the Court of Arbitration appreciated the precise historical sequence of
events.
38
39
1 Hyde 397ff.
39
2 O’Connell (1967) chs 6–18; O’Connell (1970) 130
Hague Recueil 95, 134–46. Zemanek (1965) 116 Hague Recueil 181,
279, points out that only when one assumes that the chain of continuity is
broken does it become necessary to have recourse to a special rule on
vested rights.
40
Forests of Central Rhodopia (1933) 3 RIAA 1405, 1431–
6; Lighthouses (1956) 23 ILR 79, 79–80.
41
Kaeckenbeeck (1936) 17 BY 1, 13; Rosenne (1950) 27 BY 267, 273,
281–2; 1 Guggenheim 136; Zemanek (1965) 116 Hague Recueil 181,
281; Bedjaoui, ILC Ybk 1968/II, 115; Bedjaoui, ILC Ybk 1969/II, 69. For
the debate: ILC Ybk 1969/I, 53ff; Bedjaoui (1970) 130
Hague Recueil 455, 531–61. The often-quoted passage in German
Settlers in Poland (1923) PCIJ Ser B No 6, 36, that, in the instance of
German territory transferred to Poland after 1918, German law had
continued to operate in the territory in question, is a factual statement.
Further L and JJ v Polish State Railways (1957) 24 ILR 77.
42
1 O’Connell (1967) 266. O’Connell points out that the principle of
continuity of law is only a presumption: ibid, 170. Also O’Connell (1970)
130 Hague Recueil 95, 141.
43
GA Res 1803, 18 December 1972.
44
For ILC proceedings: ILC Ybk 1970/II, 131; ILC Ybk 1971/II(1), 157;
ILC Ybk 1973/II, 3; ILC Ybk 1974/ II(1), 91; ILC Ybk 1975/II, 110;
ILC Ybk 1976/II(1), 55; ILC Ybk 1976/II(2), 122; ILC Ybk 1981/II(2), 24–
47; Union of Burma v Kotaro Toda (1965) 53 ILR 149. Also: Dronova,
in Eisemann & Koskenniemi (2000) 782, 798–810; Terol, ibid, 889, 916–
24; Stanič (2001) 12 EJIL 751; Resolution, Institut de Droit International
(2001) 69 Ann de l’Inst 713.
45
Peter Pázmány University (1933) PCIJ Ser A/B No 61, 237. Also Haile
Selassie v Cable and Wireless, Ltd (No 2) [1939] Ch 182, 195.
46
22 ILM 298, 306. For comment: Streinz (1983) 26 GYIL 198; Monnier
(1984) 30 AFDI 221. Further: Badinter Commission, Opinion No 9 (1992)
92 ILR 203, Opinion No 12 (1993) 96 ILR 729, Opinion No 14 (1993) 96
ILR 723, Opinion No 15 (1993) 96 ILR 733.
47
47
Republic of Croatia v Giro Credit Bank AG der Sparkassen (1996) 36
ILM 1520; Re AY Bank Ltd (in liquidation) [2006] EWHC 830; Republic of
Croatia v Republic of Serbia [2009] EWHC 1559; Bosnia and
Herzegovina-Croatia-Macedonia-Slovenia-FRY, Agreement on
Succession Issues, 29 June 2001, 2262 UNTS 253.
48
Badinter Commission, Opinion No 14 (1993) 96 ILR 723.
49
Långström, in Eisemann & Koskenniemi (2000) 742, 743–5;
Dronova, ibid, 800–2.
50
Agreement Between the Russian Federation and Ukraine on the
Status and Conditions of the Russian Federation Black Sea Fleet’s Stay
on Ukrainian Territory, 28 May 1997, RG (7 June 1997) analysed in Sherr
(1997) 39 Survival 33, extended for 25 years by the Russian-Ukrainian
Naval Base for Natural Gas Treaty, 21 April 2010, RG (28 April 2010):
Anatoly Medetsky, ‘Deal Struck on Gas, Black Sea Fleet’ (The Moscow
Times, 22 April 2010). Cf Dronova, in Eisemann & Koskenniemi (2000)
805–10.
51
ILA, Report of the 53rd Conference (1968) 598, 603; Lauterpacht,
3 International Law (1977) 121; Cazorla, in Eisemann & Koskenniemi
(2000) 663–71, 696–706; Stanič (2001) 12 EJIL 751. For ILC
proceedings: Bedjaoui, ILC Ybk 1971/II(1), 185; ILC Ybk 1977/II(1), 45;
ILC Ybk 1977/II(2), 59; ILC Ybk 1978/II(1), 229; ILC Ybk 1978/II(2), 113;
ILC Ybk 1979/II(2), 40; ILC Ybk 1981/II(2), 72–113. As to state archives
see ILC Ybk 1979/II(1), 67; 1 ILC Ybk 1979/II(2), 77; ILC Ybk 1980/II(1),
1; ILC Ybk 1980/II(2), 11; ILC Ybk 1981/ II(2), 47–71.
52
Ottoman Debt (1925) 1 RIAA 531, 573; Franco-Ethiopian Railway
Company (1957) 24 ILR 602, 629.
53
Feilchenfeld, Public Debts and State Succession (1931); Sack (1931–
32) 80 U Penn LR 608; 1 O’Connell (1967) 369ff.
Also Lighthouses (1956) 23 ILR 659.
54
(1965) 116 Hague Recueil 181, 255–70. Also: 1 Guggenheim 472;
Bedjaoui, ILC Ybk 1968/II, 109–10. Cf Pittacos v État Belge (1964) 45
ILR 24, 31–2.
55
E.g. West Rand Central Gold Mining Company v R [1905] 2 KB
391; Shimshon Palestine Portland Cement Company Ltd v AG (1950) 17
ILR 72; Dalmia Dadri Cement Company Ltd v Commissioner of Income
Tax (1958) 26 ILR 79.
56
1 Guggenheim 474; Castrén, ILC Ybk 1969/I, 63; Ruda,
ILC Ybk 1969/II, 82; Ago, ILC Ybk 1969/II,
57
E.g. 3 Rousseau 393–425; 1 Guggenheim 476–7; 1 O’Connell (1967)
266, 304ff.
58
Also: Bedjaoui, ILC Ybk 1968/II, 115–17; 3 Répertoire suisse 1394–
403; Cazorla, in Eisemann & Koskenniemi (2000) 707–12.
59
Sopron-Köszeg Railway (1929) 2 RIAA 961, 967.
60
(1956) 23 ILR 79. Of some interest, though depending on treaty
provisions, is Mavrommatis Jerusalem Concessions (1925) PCIJ Ser A
No 5, 21, 27.
61
(1956) 23 ILR 79, 92.
62
Zemanek (1965) 116 Hague Recueil 181, 282–9. Also Craven (2007)
43–5, 84–7.
63
ILC Draft Articles on Nationality of Natural Persons in Relation to the
Succession of States, ILC Ybk 1999/II(2), 21–3. Also Memorandum by
the Secretariat, Nationality in Relation to the Succession of States,
A/CN.4/497, 8 March 1999.
64
Cf Weis, Nationality and Statelessness in International Law (2nd edn,
1979) 136, 144; Zimmermann, in Eisemann & Koskenniemi (2000) 611.
65
UN, Laws Concerning Nationality (1954) 586ff. Also: Treaty of Neuillysur-Seine, 27 November 1919, 112 BFSP 781, Arts 51–2; Treaty of
Lausanne, 24 July 1923, 28 LNTS 11, Arts 30–6.
66
Principal Allied and Associated Powers-Poland, Minorities Treaty, 28
June 1919, 225 CTS 412.
67
Principal Allied & Associated Powers-Austria, Treaty of St Germainen-Laye, 10 September 1919, 226 CTS 8.
68
Allied and Associated Powers-Hungary, Treaty of Peace and Protocol
and Declaration, 4 June 1920, 6 LNTS 188.
69
69
Allied Powers-Roumania, Treaty of Peace, 10 February 1947, 42
UNTS 3, Art 4. Also: Markt v Prefect of Trent(1945) 10 ILR
281; Caggiano (1976) 2 It YIL 248, 264–71.
70
Allied Powers-Italy, Treaty of Peace, 10 February 1947, 49 UNTS 4,
Art 19.
71
McNair, 2 Opinions 24. Also Parry, Nationality and Citizenship Laws of
the Commonwealth (1957) 274–5. Cf British Nationality Act 1948
(repealed by the British Nationality Act 1981).
72
3 Rousseau 343; 2 Hyde 1090; Harvard Draft, Art 18 (1929) 23 AJIL
Sp Supp 61.
73
Weis (2nd edn, 1979) 143–4. Under the rubric ‘Partial succession’ he
concludes: ‘the predecessor state is under an obligation vis-à-vis the
successor state to withdraw its nationality from the inhabitants of the
transferred territory if they acquire the nationality of the successor state.
In the absence of explicit provisions of municipal law there exists a
presumption of international law that the municipal law of the
predecessor state has this effect’: ibid, 147–8. A formula involving a
presumption as to the effect of municipal law is infelicitous: inter alia one
cannot be criticized for failure to comply with a presumption. But other
authors offer similarly cautious opinions: Graupner (1946) 32 GST 87, 92;
Jones, British Nationality Law (1956) 206; Crawford (1986) 27 Seoul
LJ 34.
74
Slouzak Minority in Teschen (Nationality) (1940) 11 ILR 179; Ministry
of Home Affairs v Kemali (1962) 40 ILR 191; North Transylvania
Nationality (1970) 40 ILR 43, 191. Cf In re Andries (1950) 17 ILR 109
(dual nationality); Weis (2nd edn, 1979) 140–4, 149–53; Draft Articles on
Nationality of Natural Persons in relation to Succession of States, Arts
20–4, ILC Ybk 1997/II(2), 13, 20, 36–42; Blackman (1997–98) 19 Mich
JIL 1141, 1155–71
75
McNair, 2 Opinions 21–6; Weis (2nd edn, 1979)
140; Fransman, British Nationality Law (3rd edn, 2011) 601–2. Parry
(1957) 163–4, 275, believes the rule is uncertain. Also Murray v
Parkes [1942] 2 KB 123.
76
76
Cf Secretariat Survey, 14 May 1954, ILC Ybk 1954/II, 61: ‘[t]he opinion
is widely held that, in case of change of sovereignty over a territory by
annexation, or its voluntary cession by one State to another, the annexing
State is obliged to grant its nationality to the inhabitants of the territory
concerned who were citizens of the ceding State, at least if they have, at
the time of annexation, their permanent residence in the ceded territory.
In most instances these questions are settled by treaty’. Also the UN
Convention on the Reduction of Statelessness, 30 August 1961, 989
UNTS 175, Art 10.
77
Costa v Military Service Commission of Genoa (1939) 9 ILR
26; United States, ex rel Reichel v Carusi, 157 F.2d 732 (3rd Cir, 1946)
13 ILR 119; Re Tancredi (1950) 17 ILR 203; Secession of Austria (1954)
21 ILR 175; Austrian Nationality (1955) 22 ILR 430; In re Feiner (1956)
23 ILR 367; Austro-German Extradition (1956) 23 ILR 364 Koh-i-noor
L&C v Koh-i-noor Tužkárna L&C Hardtmuth (1958) 26 ILR 40, 42.
Cf Austrian Nationality (1953) 20 ILR 250; Loss of Nationality
(Germany) (1965) 45 ILR 353. After the breakup of Yugoslavia, the
Badinter Commission stated that the consequences of the principle of
self-determination might include for ‘the members of the Serbian
population in Bosnia-Hercegovina and Croatia to be recognised under
agreements between the Republics as having the nationality of their
choice’: Opinion No 2 (1991) 92 ILR 167, 169.
78
There is no rule that prevents transfer of populations (such as the
2011 agreement concluded between India and Bangladesh to swap 162
territorial enclaves between the two states: Protocol to the Agreement
Concerning the Demarcation of the Land Boundary between India and
Bangladesh and Related Matters, Dhaka, 6 September
2011, www.mofa.gov.bd/bd_in/Boundary_Demarcation.pdf). But
Ethiopia’s forced expulsion of dual Ethiopian–Eritrean nationals in 1992–
93 was held to breach international law: Eritrea-Ethiopia Claims
Commission, Civilian Claims (2004) 26 RIAA 195, 224–30. Cf
Henckaerts, Mass Expulsion in Modern International Law (1995);
Bruce, Twice a Stranger (2006).
79
Wyler, La règle dite de la continuité de la nationalité dans le
contentieux international (1990) 111–17, and further: chapter 23.
80
80
(1939) PCIJ Ser A/B No 76.
81
Ibid, 32–5. Also: Monnier (1962) 8 AFDI 65, 68–72; 1 O’Connell
(1967) 537–41; Jennings (1967) 121 Hague Recueil 323, 476.
82
ILC Ybk 2006/II(2), 35. According to the commentary to Art 5, §(10),
the condition to Art 5(2) ‘is designed to limit exceptions to the continuous
nationality rule mainly to cases involving compulsory imposition of
nationality, such as those in which the person has acquired a new
nationality as a necessary consequence of factors such as marriage,
adoption or the succession of States’: ibid, 39. The matter is not dealt
with in the 1999 Articles on nationality of persons in relation to
succession of states.
83
ILC Ybk 1950/II, 206–18. For ILA proceedings: ILA, The Effect of
Independence on Treaties (1965); ILA, Report of the 53rd Conference
(1968) 596; ILA, Report of the 54th Conference (1970); O’Connell, in ILA,
The Present State of International Law (1973) 331. Generally: Onory, La
Succession d’états aux traités (1968); Udokang, Succession of New
States to International Treaties (1972). Caggiano (1975) 1 It YIL 69;
Mériboute, La Codificationde la succession d’états aux
traités (1984); Vagts (1992–93) 3 Va JIL 275; Eisemann & Koskenniemi
(2000); Craven (2007).
84
McNair, Law of Treaties (1961) 592, 600–1, 629, 655; Sørensen
(1968) 294–5, 298–9; Jennings (1967) 121 Hague Recueil 323, 442–6; 1
Guggenheim 463; ILC Ybk 1970/II, 31–7; ILC Ybk 1972/II, 227, 250–4;
ILC Ybk 1974/II(1), 7–9, 168–9, 211–14. But see Craven (2007) 120–31,
138–9.
85
23 August 1978, 1946 UNTS 3. The Swiss Federal Tribunal has
recognized the ILC final draft as ‘authoritative’: M v Federal Department
of Justice and Police (1979) 75 ILR, 107. Further: Sinclair, Essays in
Honour of Erik Castrén (1979) 149. Also Badinter Commission, Opinion
No 1 (1991) 92 ILR 162, Opinion No 9 (1992) 92 ILR 203.
86
Reports to GA; ILC Ybk 1972/II, 250, 286; ILC Ybk 1974/II(1), 211,
252. The evidence set forth in the reports does not satisfy the criteria of a
rule of customary law. Also R v Commissioner of Correctional Services,
ex parte Fitz Henry (1976) 72 ILR 63.
87
87
2 O’Connell (1967) 273; Waldock, ILC Ybk 1968/II, 92–3; Bedjaoui,
ILC Ybk 1968/II, 112–14; Waldock, ILC Ybk 1972/II, 44–59;
ILC Ybk 1972/II, 298–308; ILC Ybk 1974/II(1), 196–208.
88
Frontier Dispute (Burkina Faso/Mali), ICJ Reports 1986 p 554, 566;
cf Guinea-Guinea(Bissau) Maritime Delimitation (1985) 77 ILR 635, 657.
Also: Kaikobad (1983) 54 BY 119; Kaikobad (1985) 56 BY 49.
89
2 O’Connell (1967) 12–23, 231ff.
90
McNair (1961) 655–64. Also: Zemanek (1965) 161
Hague Recueil 181, 239–44; 3 Rousseau 491–4; Sørensen (1968) 297–
8; 1 Guggenheim 465. Further: 3 Répertoire suisse 1333–4, 1339–40,
1358–92.
91
E.g. Castrén (1951) 78 Hague Recueil 379, 448–9; Jennings (1967)
121 Hague Recueil 323, 442.
92
See the miscellany in McNair (1961) 656–64, 705, 740–2.
93
Free Zones of Upper Savoy and the District of Gex (1932) PCIJ Ser
A/B, No 46; SS Wimbledon (1923) PCIJ Ser A No 1.
94
Hungary–Czechoslovakia, Treaty concerning the GabčíkovoNagymaros Barrage System, 16 September 1977, 1109 UNTS 211.
95
ICJ Reports 1997 p 7, 69–72.
96
Treaty of Peace with Hungary, 15 September 1947, 41 UNTS 135.
97
1 O’Connell (1967) 212–29.
98
Waldock, ILC Ybk 1968/II, 130–1, 145–6; Castañeda, ibid, 137;
Waldock, ILC Ybk 1970/II, 37–60; ILC Ybk 1972/II, 254–72;
ILC Ybk 1974/II(1), 214–36; Indonesian Note in UN Legis Series (1967)
37. Further: the Secretariat studies in ILC Ybk 1968/II, 1; ILC Ybk 1969/II,
23; ILC Ybk 1970/II, 61.
99
100
101
UN Secretariat Memo, A/CN4/150, ILC Ybk 1962/II, 106, ch 11.
Jennings (1967) 121 Hague Recueil 323, 444.
Genocide (Bosnia and Herzegovina v Yugoslavia), ICJ Reports 1996,
595 (Judge Weeramantry); Genocide (Bosnia and Herzegovina v Serbia
and Montenegro), ICJ Reports 2007 p 43; Croatia v Serbia, ICJ Reports
2008 p 412. Also: Schachter (1992–93) 33 Va JIL 253; Müllerson (1993)
42 ICLQ 473; Kamminga (1996) 7 EJIL 469. But see Rasulov (2003)
14 EJIL 141.
102
Långström, in Eismann & Koskenniemi (2000) 742, 745.
103
Ibid, 742, 749–56, 775.
104
UN Legis Series (1967) 177. Also: Seaton & Maliti, Tanzania Treaty
Practice (1973); Waldock, ILC Ybk 1969/II, 62–8; ILC Ybk 1972/II, 241–6;
ILC Ybk 1974/II(1), 187–93.
105
E.g. UN Legis Series (1967) 233 (Malagasy); Waldock, Second
Report, ILC Ybk 1969/II, 62–8; UKMIL (1981) 52 BY 384 (Kiribati); UKMIL
(1981) 52 BY 443 (Suriname).
106
But see Molefiv Principal Legal Adviser (1969) 39 ILR 415, where the
Privy Council treated a declaration of this type as an accession to the
1951 Convention Relating to the Status of Refugees.
107
For the unilateral declarations noted above: Zemanek (1965) 116
Hague Recueil 181, 243; ILA, The Effect of Independence on
Treaties (1965) 99–100, 109, 144ff; UN Legis Series (1967) 37, 42, 218.
108
UK view on a bilateral treaty with France as affecting Laos: UN Legis
Series (1967) 188–9; ILC Ybk 1969/II, 60.
109
ILC Ybk 1962/II, 124.
110
Waldock, ILC Ybk 1970/II, 46–52; Gaja (1975) 1 It YIL 52.
111
Brown (1923) 6 RIAA 120; Hawaiian Claims (1925) 6 RIAA 157,
and Hurst (1924) 5 BY 163; 1 Guggenheim 474; Monnier (1962)
8 AFDI 65; Czaplinski (1990) 28 Can YIL 339; Dumberry (2006)
49 GYIL 413; Dumberry, State Succession to International
Responsibility (2007).
112
Lighthouses (1956) 23 ILR 81. The decision rests on the adoption of
the wrongful act by Greece. The tribunal referred to ‘the vagaries of
international practice and the chaotic state of authoritative writings’: ibid,
91–2. Further: 7 Verzijl (1974) 219–28; Minister of Defence, Namibia v
Mwandinghi (1991) 91 ILR 341; ARSIWA, Art 11 & commentary.
113
113
Schachter (1948) 25 BY 91, 101–9; ILC Ybk 1962/II, 101, 106
(§§144–9); 2 Whiteman, 1016–27; Zemanek (1965) 116
Hague Recueil 181, 254; Green, in Schwarzenberger (ed), Law, Justice
and Equity (1967) 152; 2 O’Connell (1967) 183–211; ILC Ybk 1968/II, 1;
ILC Ybk 1969/II, 23; Bühler, in Eisemann & Koskenniemi (2000) 187.
114
Crawford (2nd edn, 2006) 489, 690, 706.
115
The UN’s general practice is to consider the ‘parent’ state’s
membership unaffected by the loss of territory, whereas the new state
must apply for membership: Blum (1992) 3 EJIL 354, 355–7. Therefore,
Eritrea was admitted to the UN as a new member after it seceded from
Ethiopia, while the latter continued its prior membership. SC Res 828
(1993); GA Res 47/230, 28 May 1993. Similarly, South Sudan was
admitted as a new state, while Sudan’s membership was unaffected. SC
Res 1999 (2011); GA Res 65/308, 14 July 2011.
116
Blum (1992) 3 EJIL 354, 359; Scharf (1995) 28 Cornell ILJ 29, 34–6,
67–8.
117
Schachter (1992–93) 33 Va JIL 253, 258.
118
Müllerson (1993) 42 ICLQ 473, 473.
Part VII State Jurisdiction
(p. 447) 20 Sovereignty and Equality of States
1. The Concept of Sovereignty1
The sovereignty of states represents the basic constitutional doctrine of
the law of nations, which governs a community consisting primarily of
states having, in principle, a uniform legal personality.2 If international law
exists, then the dynamics of state sovereignty can be expressed in terms
of law. If states (and only states) are conceived of as sovereign, then in
this respect at least they are equal, and their sovereignty is in a major
aspect a relation to other states (and to organizations of states) defined
by law.
The corollaries of the sovereignty and equality of states are: (a) a
jurisdiction, prima facie exclusive, over a territory and the permanent
population living there; (b) a duty of non-intervention in the area of
exclusive jurisdiction of other states; and (c) the ultimate dependence
upon consent of obligations arising whether from customary law or from
treaties. The last of these has certain special applications: in principle the
jurisdiction of international tribunals depends on the consent of the
parties; membership of international organizations is not obligatory; and
the powers of the organs of such organizations to determine their own
competence, to take decisions by majority vote, and to enforce decisions
depend ultimately on the consent of member states.3
The manner in which the law expresses the content of sovereignty varies,
and much of the law could be expressed in terms of the co-existence and
conflict of sovereignties. Yet another perspective is provided by the
notion of sovereignty as discretionary
References
(p. 448) power within areas delimited by the law. Thus states alone can
confer nationality for purposes of municipal law, delimit the territorial sea,
and decide on the necessity for action in self-defence. Yet in all these
cases the exercise of the power is conditioned by international law, and
compliance with those conditions is not a matter for the acting state
alone.
2. Some Uses of ‘Sovereignty’
(A) The Competence of States
The term ‘sovereignty’ is variously used to describe the legal competence
which states have in general, to refer to a particular function of this
competence, or to provide a rationale for a particular exercise of this
competence. The word itself has a lengthy and troubled history, and is
susceptible to multiple meanings and justifications.4 In its most common
modern usage, however, the term is rather descriptive in character,
referring in a ‘catch-all’ sense to the collection of rights held by a state,
first in its capacity as the entity entitled to exercise control over its
territory and second in its capacity to act on the international plane,
representing that territory and its people.5 Sovereignty is not to be
equated with any specific substantive right, still less is it a precondition to
state-hood.6 Thus jurisdiction, including legislative competence over
national territory, may be referred to by the terms ‘sovereignty’ or
‘sovereign rights’. Sovereignty may refer to the title to territory or to the
rights accruing from the exercise of title. The correlative duty of respect
for territorial sovereignty,7 and the privileges in respect of territorial
jurisdiction referred to as sovereign (or state) immunity, are described
after the same fashion. In general ‘sovereignty’ characterizes powers and
privileges resting on customary law which are independent of the
particular consent of another state.
(B) Sovereignty as Equality
A corollary of their independence is the equality of states,8 historically
expressed by the maxim par in parem non habet imperium.9 In
international law, the maxim is
References
(p. 449) frequently invoked as a basis for state immunity, at the core of
which (in its restricted modern application) is the concept of equality
between sovereigns.10 But equality has further implications: it refers to
the juridical conceptualization of the division of power between states.
Obviously, the allocation of power and the capacity to project it in reality
are different things, which suggests that while all states are equal, some
are more equal than others.11
But nonetheless formal equality remains and has meaning. When, by
legislation or executive decree, a state delimits a fishing zone or the
territorial sea, the manner and provenance of the exercise of such power
is in the first place a matter for the state. But when it is comes to
enforcing the limit vis-à-vis other states, the issue is placed on the
international plane. Similarly, the conferral or withdrawal of nationality
may lead to a collision of interest between two states as to the right to
exercise diplomatic protection. One might conclude that the criterion
depends on a distinction between internal competence—no outside
authority can annul or prevent the internally valid act of state power—and
international responsibility for the consequences of the wrongful exercise
of that competence. This distinction certainly has wide application, but it
is not absolute in character. Thus, in particular contexts, international law
may place restrictions on the ‘internal’ territorial competence of states as
a consequence of treaty obligations, for example, forbidding legislation
which discriminates against certain groups among the population. In the
case of various territorial privileges, created either by general or local
custom or by treaty, other states are permitted to exercise governmental
functions, that is, perform sovereign acts, within the territorial domain.
3. The Interaction of States with International
Law
At this point it may be useful to review some of the ways states interact
with international law.
(A) Sovereignty and the Application of Rules12
(i) The performance of obligations arising from treaties
One of the central canons of the customary international law of treaties is
the rule pacta sunt servanda, that is, the notion that states must comply
with their obligations (p. 450) in good faith.13 No case has yet arisen in
which an international court or tribunal repudiated the rule or challenged
its validity. From a certain point of view, the rule is axiomatic and selfevident.14 From another, it is in tension with the concept of sovereignty, in
that the obligation to perform (and to be held to account for nonperformance) appears to restrain a state’s ability to exercise its
sovereignty.
In the Wimbledon the Permanent Court firmly rejected the argument that
a treaty provision could not deprive a state of the sovereign right to apply
the law of neutrality to vessels passing through the Kiel Canal.
The SSWimbledonwas a British-owned steamship time-chartered to a
French company. On board was a cargo of Italian munitions destined for
the Polish naval base at Danzig. Poland was at war with Russia, a
conflict in respect of which Germany had pledged neutrality. For fear that
German neutrality would be breached if the ship were allowed passage,
the Wimbledon was detained and eventually forced to find its way to
Danzig through the Denmark Strait, with consequent delays. Britain,
France, Italy, and Japan (but not Poland) claimed reparation, asserting
that Germany’s refusal to grant passage to the Wimbledon was contrary
to Article 308 of the Treaty of Versailles,15 requiring Germany to allow
passage through the Kiel Canal to all vessels of nations with which it was
not at war.
The Court held that the idea that the treaty restrained Germany’s
sovereign right to impose the law of neutrality on the Kiel Canal was
fallacious. The treaty itself was an expression of conduct to which the
state consented to be bound. Rather than removing the right to apply the
law of neutrality to the Kiel Canal, it created an obligation to exercise that
right in a certain way, with the capacity to enter into an agreement giving
rise to an internationally binding obligation being itself an attribute of
sovereignty.16
(ii) Interpretation of treaties
On occasion the International Court has referred to sovereign rights as a
basis for a restrictive interpretation of treaty obligations.17 But under the
unitary theory of
References
(p. 451) interpretation set out in VCLT Article 31 and customary
international law, everything depends on the context, the intention of the
parties, and the relevance of other, countervailing, principles such as that
of effectiveness. In certain contexts, this application of other canons of
interpretation has led to a complete reversal of the restrictive approach,
particularly in circumstances where a dispute concerns a state and a
private party.18 Investor-state arbitration tribunals are particularly forward
in this respect, often holding that international investment agreements be
interpreted either neutrally19 or for the benefit of the private investor.20
(iii) Presumptions and burdens
Many areas of international law are uncertain or contain principles which
do not admit of easy application to concrete issues. Thus much could
turn on the answer to the question whether there is a presumption in
favour of sovereignty. In another form the issue is whether, in case of
doubt as to the mode of application of rules or in case of an absence of
rules, the presumption is that states have legal competence or not. In
the Lotus the Court decided the issue of jurisdiction on the basis that
‘restrictions upon the independence of States cannot be presumed’.21 But
yet again there is no general rule, and in judicial practice issues are
approached empirically. Indeed, a general presumption of either kind
would lead to inconvenience or abuse. The context of a problem will
determine the incidence of the burdens of proof of a given issue: whether
that produces a burden of proving a restriction on sovereignty will vary.
The ‘jurisdictional geography’ of the problem may provide useful
indications: more than one sovereignty may be involved. Thus
in Asylum the Court stressed the fact that diplomatic asylum involves a
derogation from sovereignty as represented by the normally exclusive
jurisdiction of the territorial state.22
23
(B) Sovereignty and International Organizations23
The institutional aspects of organizations of states result in an actual, as
opposed to a formal, qualification of the principle of sovereign equality. In
an organization subject
References
(p. 452) to majority or weighted voting, organs may be permitted to take
decisions, and even to make binding rules, without the express consent
of all member states. But on joining the organization each member
consented in advance to the institutional aspects, and thus in a formal
way the principle that obligations can only arise from the consent of
states and the principle of sovereign equality are satisfied.
On the other hand, international organizations can evolve and may
assume roles very different to that initially contemplated. In the case of
the UN the organs have interpreted the Charter in accordance with the
principles of effectiveness and implied powers at the expense, it may
seem, of Article 2(1) and (7).24 In Certain Expenses, the Court held that
in the absence of any particular procedure to determine the validity of the
acts of the UN’s institutions, each of them must determine its own
jurisdiction.25 Some 40 years later, this position arguably enabled the
Security Council to pass several ‘legislative’ resolutions, using its Chapter
VII powers.26 These resolutions require states to enact particular
domestic laws, thereby supplanting the recommendatory role of the
General Assembly, the treaty-making process and the principle of
consent.27 True, the Security Council has always had the power to bind
UN members to the point of overriding other treaty obligations,28 but
legislative resolutions require members to respond to a general
phenomenon (the financing of terrorism, the transport of nuclear
weapons) rather than a specific situation involving a particular country or
region. That is at odds with the original conception of the Security Council
as a force for the maintenance of world peace, not the alteration of world
order.29
If an organization encroaches on the domestic jurisdiction of members to
a substantial degree the structure may approximate to a federation.
Given the modern conception of the relationship between states and
international organizations, such a position seems inherently unlikely, and
in any event, the consent-based conception of this relationship precludes
the argument that state sovereignty is under threat from some form of
overarching ‘world government’. Pending an (unlikely) revolution, ‘world
government’ is an essentially decentralized enterprise, something
international law provides because states have accepted it: it is the
government we have when we are not having a government.
References
(p. 453) (C) Article 2(7) of the UN Charter: Domestic
Jurisdiction30
Matters within the competence of states under general international law
are said to be within the reserved domain, the domestic jurisdiction, of
states. But this is tautologous, and in practice the category of domestic
jurisdiction is not very fruitful. As a source of confusion, however, it
deserves some consideration.
(i) Original intent
The advent of international organizations with powers to settle disputes
on a political basis caused some states to favour express reference to
the reserved domain in order to reinforce state sovereignty. Article 15(8)
of the League of Nations Covenant provided, in relation to disputes
submitted to the Council as distinct from arbitration or judicial settlement:
If the dispute between the parties is claimed by one of them, and is found by the Council,
to arise out of a matter which by international law is solely within the domestic jurisdiction
of that party, the Council shall so report, and shall make no recommendation as to its
settlement.
In making a political settlement the Council might well touch on the
reserved domain, since this contains matters frequently the cause of
disputes, and the need to write in the legal limit of action was apparent.
During the drafting of the UN Charter similar issues arose, and the result
was Article 2(7):
Nothing contained in the present Charter shall authorize the United Nations to intervene
in matters which are essentially within the domestic jurisdiction of any State or shall
require the Members to submit such matters to settlement under the present Charter; but
this principle shall not prejudice the application of enforcement measures under Chapter
VII.
Certain contrasts with Article 15(8) of the Covenant will be apparent.
There is no reference to international law, the reference is to matters
‘essentially’ within the domestic jurisdiction, and there is no designation
of the authority which is to have the power to qualify particular matters.
Article 2(7) of the Charter was intended to be flexible and non-technical.
At the same time the restriction was meant to be comprehensive, the use
of the formula ‘essentially within’ stemming from the wide implications of
the economic and social provisions of the Charter (Chapter IX).
(ii) The practice of the political organs
But these intentions have in practice worked against each other. The
flexibility of the provision, and the assumption in practice that it does not
override other, potentially conflicting, provisions have resulted in the
erosion of the domain of domestic
References
(p. 454) jurisdiction, although the drafters intended its reinforcement.
Moreover, the word ‘intervene’ has been approached empirically.
Discussion, recommendations in general terms, and even resolutions
addressed to particular states have not been inhibited by the formulation
of Article 2(7).31
Ultimately, the early debates about the meaning of the term ‘to intervene’
in the context of Article 2(7) have lost their importance. Over time, it has
been proved that the provision does not serve as an effective restraint on
the activities of the UN.32 This is not due to a narrow interpretation of the
term ‘intervention’33 but to a narrowing of those things which are seen as
solely within the domestic jurisdiction of states. As the Permanent Court
already said in Nationality Decrees:
The question whether a certain matter is or is not solely within the jurisdiction of a State
is an essentially relative question; it depends on the development of international
relations.34
The implications are far-reaching:
This means that the concept of ‘domestic jurisdiction’ does not
denote specific areas which are clearly defined, irreducible or in
any way inherently removed from the international sphere. It
rather circumscribes areas which, taking into account the
situation at issue, are not even prima facie affected by rules of
international law…In order to remove an area from the sphere of
domestic jurisdiction, it is sufficient that this area be regulated by
international law only in certain respects.35
UN organs have taken action on a wide range of topics dealing with the
relations of governments to their own people. Resolutions on breaches of
human rights, the right of self-determination, and democratic governance
have been adopted regularly. If the organ concerned felt that the acts
complained of were contrary to the purposes and principles of the
Charter and also that the issue was ‘endangering international peace and
security’, a resolution was passed. Certain issues are regarded as
inherently matters of international concern, without the need for express
reference to any threat to international peace and security.36 The Security
Council initially adopted a resolution concerning apartheid only partly on
the basis that the situation ‘constitutes a potential threat to international
peace and security’.37 But over time the potential has become actual. In
1992, the President of the Security Council stated that those economic,
social, humanitarian, and ecological factors that could lead to a threat to
peace
References
(p. 455) and security were themselves threats that could justify Security
Council action under Chapter VII.38
As a separate notion in general international law, the reserved domain is
mysterious only because many have failed to see that it stands for a
tautology. However, if a matter is prima facie within the reserved domain
because of its character and the issue presented in the normal case, then
certain presumptions against any restriction on that domain may be
created. Thus the imposition of customs tariffs is prima facie unrestricted
by international law, whilst the introduction of forces into another state is
not prima facie an internal matter for the sending state.39 As with other
issues associated with sovereignty, domestic jurisdiction has content as
presumption rather than rule.40
References
Footnotes:
1
Kelsen (1944) 53 Yale LJ 207; Rousseau (1948) 73
Hague Recueil 167, 171–253; van Kleffens (1953) 82 Hague Recueil 1,
5–130; Fitzmaurice (1957) 92 Hague Recueil 1, 48–59;
Lauterpacht, Development (1958) 297–400; Verzijl, 1 International Law in
Historical Perspective (1968) 256–92; Lachs (1980) 169 Hague Recueil
9, 77–84; Virally (1983) 183 Hague Recueil 9, 76–88; Anand (1986) 197
Hague Recueil 9; Koskenniemi (1991) 32 Harv ILJ 397; Schreuer (1993)
4 EJIL 447; Koskenniemi, From Apology to Utopia (2005) ch 4; Crawford,
in Crawford & Koskenniemi (eds), Cambridge Companion to International
Law (2012) 117.
2
Reparation for Injuries Suffered in the Service of the United Nations,
ICJ Reports 1949 p 174, 177–8.
3
The qualifier ‘ultimately’ bears some considerable weight. In practice
the sovereignty of most states is sullied by consent—e.g. the consent of
UN member states that are not permanent members of the Security
Council to be bound by the Council’s resolutions. The principle of consent
has retained practical content more in some fields than others, and more
in certain formal settings—e.g. the jurisdiction of the ICJ (see
chapter 32).
4
Koskenniemi (2005) 228–33, 240–5. Many consider the term to be
outdated: Charney recommends its eradication as evoking ‘the total
independence and autonomy of the state…a fundamentalist view that is
difficult to debate in light of its emotive baggage’: Charney (1997)
91 AJIL 394, 395.
5
Although states are not the only entities with international legal
personality, there is certainly a perception that they are
paramount: Schreuer (1993) 4 EJIL 447, 455. This perception is
reaffirmed by scholars of international relations: Abbott (1989) 14 Yale
JIL 335; Jackson, Sovereignty (2007).
6
Crawford, Creation of States (2nd edn, 2005) 32–3.
7
Corfu Channel (UK v Albania), ICJ Reports 1949 p 4, 35; UN Charter,
Art 2(4).
8
Draft Declaration on the Rights and Duties of States, ILC Ybk 1949,
287, Art 3. Cf SS Lotus (1927) PCIJ Ser A No 10, 25.
9
The maxim may be traced back to the 14th-century jurist Bartolus, who
wrote ‘Non enim una civitas potest facere legem super alteram, quia par
in parem non habet imperium’ (‘For it is not for one city to make the law
upon another, for an equal has no power over an equal’): Badr, State
Immunity (1984) 89, citing Bartolus, Tractatus Repressalium (1394)
Quaestio 1/3, §10.
10
Kokott, ‘States, Sovereign Equality’ (2007) MPEPIL.
11
Cf Orwell, Animal Farm (1945) 90; and see Simpson, Great Powers
and Outlaw States (2004).
12
Fitzmaurice (1953) 30 BY 1, 8–18; Fitzmaurice (1957) 92
Hague Recueil 1, 49–59; Lauterpacht (1958) 359–67; McNair, Law of
Treaties (1961) 754–66; Waldock (1962) 106 Hague Recueil 1, 159–
69; Crawford (1995) 38 American Behavioural Scientist 867.
13
VCLT, 23 May 1969, 1155 UNTS 331, Art 26. Also: Aust, Modern
Treaty Law and Practice (2nd edn, 2007) 179–81; Villiger, Commentary
on the 1969 Vienna Convention on the Law of Treaties (2009) 363–8.
14
It was one of Kelsen’s two candidates for the grundnorm of
international law: Kelsen, Reine Rechtslehre (1934) 129–30; Kelsen
(1936) 10 RITD 253, 254–6. Also: Rigaux (1998) 9 EJIL 325; von
Bernstorff, The Public International Law Theory of Hans Kelsen (2010)
and further: chapter 3.
15
Treaty of Peace between the Allied and Associated Powers and
Germany, 28 June 1919, 225 CTS 188.
16
16
(1923) PCIJ Ser A No 1, 25. Further: Feinäugle, ‘The Wimbledon’
(2008) MPEPIL. But the principle operates equally in favour of freedom
as constraint: cf the view of the International Court on reservations by
states to multilateral treaties: Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951
p 15, 24.
17
Wimbledon (1923) PCIJ Ser A No 1, 24; Free Zone of Upper Savoy
and the District of Gex (1930) PCIJ Ser A No 24, 12; (1932) PCIJ Ser A/B
No 46, 96, 167; Rights of Access to Danzig Harbour (1931) PCIJ Ser A/B
No 43, 142; Interpretation of the Statute of Memel (1932) PCIJ Ser A/B
No 49, 294, 313–14; Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, ICJ Reports 1950 p 221, 227; Fisheries (UK v
Norway), ICJ Reports 1951 p 116, 143; Anglo-Iranian Oil Company (UK v
Iran), ICJ Reports 1952 p 93, 105, cf 143 (Judge Read, diss); Continental
Shelf (Libya v Malta), ICJ Reports 1985 p 13, 22; Nuclear Tests (Australia
v France), ICJ Reports 1974 p 253, 267; ibid, 286 (Judge Gros); 306
(Judge Petrén); 365–6 (Judges Oneyana, Dillard, Jiménez de Aréchaga
& Waldock, diss) (on unilateral declarations). Also: Lauterpacht (1949)
26 BY 48; Koskenniemi (2005) 253–4; Linderfalk, On the Interpretation of
Treaties (2007) 280–4; Gardiner, Treaty Interpretation (2008) 60–2.
18
Crema (2010) 21 EJIL 681, 691.
19
E.g. Mondev International Ltd v United States of America (2002) 125
ILR 98, 123. Further: Dolzer & Schreuer, Principles of International
Investment Law (2008) 62; Amerasinghe, Jurisdiction of Specific
International Tribunals (2009) 438.
20
Tradax Hellas SA v Albania (1996) 5 ICSID Reports 43, 68–9; Fraport
AG Frankfurt Airport Services Worldwide v Republic of the Philippines, 16
August 2007, §80, available at www.italaw.com.
21
Cf Lake Lanoux (France v Spain) (1957) 12 RIAA 281, 306.
Further: De Pascale (1970) 40 ILR 250, 256.
22
23
Asylum (Columbia/Peru), ICJ Reports 1950 p 266, 274–5.
Van Kleffens (1953) 82 Hague Recueil 1, 107–26; Bourquin, L’Etat
souverain et l’organisation internationale (1959); Broms, The Doctrine of
Equality of States as Applied in International Organizations (1959);
Korowicz, Organisations internationales et souveraineté des états
membres (1961); Waldock (1962) 106 Hague Recueil 1, 20–38, 171–
2; Lachs (1980) 169 Hague Recueil 9, 141–2; Morgenstern, Legal
Problems of International Organizations (1986) 46–
68; Amerasinghe, Principles of the Institutional Law of International
Organizations (2nd edn, 2005) 48; Duxbury, The Participation of States in
International Organisations (2011) 166–7.
24
Simma (ed), The Charter of the United Nations (2nd edn, 2002) 149–
76; and further: chapter 7.
25
Certain Expenses of the United Nations (Article 17, paragraph 2, of
the Charter), ICJ Reports 1962 p 151, 162. Also Reparation for Injuries,
ICJ Reports 1962 p 174, 185.
26
SC Res 1373 (2001) and 1540 (2004).
27
On the scope and potential limitations of these resolutions: Talmon
(2005) 99 AJIL 175; Bianchi (2006) 17 EJIL 881; Hinojosa-Martinez
(2008) 57 ICLQ 333. Also Koskenniemi (1995) 6 EJIL 325.
28
UN Charter, Arts 25, 39, 41–2, 103.
29
E.g. Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), ICJ Reports 1971 p 16, 294 (Judge
Fitzmaurice, diss).
30
Kelsen, The Law of the United Nations (1950) 769–91;
Verdross, Mélanges offerts à Charles Rousseau (1974) 267. For the
practice of UN organs: Rajan, The United Nations and Domestic
Jurisdiction (2nd edn, 1961); Higgins, Development (1963) 58–130;
Nolte, in 1 Simma (2nd edn, 2002) 148; Oxman, ‘Jurisdiction of States’
(2007) MPEPIL.
31
Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4,
7; Peace Treaties, ICJ Reports 1950 p 65, 70–1; Lauterpacht (1958)
270–2.
32
Goodrich, Hambro & Simons, Charter of the United Nations (3rd edn,
1969) 68.
33
33
Which has been interpreted broadly: Military and Paramilitary
Activities in and Against Nicaragua (Nicaragua v US), ICJ Reports 1986 p
14, 107; Abi-Saab, in Wellens (ed), International Law (1998) 230–
3; Conforti, The Law and Practice of the United Nations (3rd edn, 2005)
143–5.
34
(1923) PCIJ Ser B No 4, 24.
35
Nolte, in 1 Simma (2nd edn, 2002) 157.
36
On the concept of international concern: Higgins (1963) 77–81.
37
SC Res 282 (1970). Note that this and other SC resolutions on the
same subject were adopted under Chapter VI.
38
S/23500 (1992) §3; Talmon (2005) 99 AJIL 175, 180.
39
See, however, the opinion of Judge Lauterpacht in Certain Norwegian
Loans (France v Norway), ICJ Reports 1957 p 9, 51–2.
40
For the decline of the plea of domestic jurisdiction as a preliminary
plea before international courts and tribunals: Interhandel (Switzerland v
US), Preliminary Objections, ICJ Reports 1959 p 6; Peace Treaties, ICJ
Reports 1950 p 65, 70–1. Also: Nolte, in 1 Simma (2nd edn, 2002) 159;
Tams, ‘Interhandel Case’ (2007) MPEPIL.
(p. 456) 21 Jurisdictional Competence
1. Overview1
Jurisdiction is an aspect of sovereignty: it refers to a state’s competence
under international law to regulate the conduct of natural and juridical
persons. The notion of regulation includes the activity of all branches of
government: legislative, executive, and judicial. Although the state is
conceived in international law as a single unit, nonetheless for the
purposes of analysing jurisdiction and its limits some distinctions are
usually made. On the one hand is the power to make laws, decisions or
rules (prescriptive jurisdiction); on the other is the power to take
executive or judicial action in pursuance of or consequent on the making
of decisions or rules
(respectively enforcement or adjudicative jurisdiction).2
The starting-point in this part of the law is the presumption that
jurisdiction (in all its forms) is territorial, and may not be exercised extraterritorially without some specific basis in international law. However, the
territorial theory has been refined in (p. 457) the light of experience and
what amounts to extra-territorial jurisdiction is to some extent a matter of
appreciation. If there is a cardinal principle emerging, it is that of genuine
connection between the subject-matter of jurisdiction and the territorial
base or reasonable interests of the state in question.3
It should be stressed that this sufficiency of grounds for jurisdiction is
normally considered relative to the rights of other states.4 There is no
assumption (even in criminal cases) that individuals or corporations will
be regulated only once, and situations of multiple jurisdictional
competence occur frequently. In such situations there is no ‘natural’
regulator and the consequences of multiple laws applying to the same
transaction are managed rather than avoided—double taxation being a
case in point.5
6
2. Prescriptive Jurisdiction Over Crimes6
(A) General Bases of Jurisdiction
The discussion which follows concerns the general principles for
determining whether a state may prescribe acts as criminal under
municipal law. The question emerged as a distinct one only after about
1870,7 and the appearance of clear principles has been retarded by the
prominence in the sources of municipal decisions, which exhibit
empiricism and adherence to national policies. The early structure of
prescriptive criminal jurisdiction was provided by the Permanent Court in
the SS Lotus. That case concerned a collision on the high seas between
a French steamer and a Turkish collier in which the latter sank and
Turkish crew members and passengers lost their lives. The French
steamer having put into port in Turkey for repairs, the officers of the
watch were tried and convicted of involuntary manslaughter. On the
question of jurisdiction in general the Permanent Court said:
References
(p. 458) Far from laying down a general prohibition to the effect that States may not
extend the application of their laws and the jurisdiction of their courts to persons,
property or acts outside their territory, [international law] leaves them in this respect a
wide measure of discretion which is only limited in certain cases by prohibitive rules; as
regards other cases, every State remains free to adopt the principles which it regards as
best and most suitable.8
This passage has been much criticized.9 Its emphasis on plenary state
discretion is contradicted by the approach of the Court in AngloNorwegian Fisheries10 and Nottebohm,11 which concerned comparable
competences of states, respectively, to delimit the territorial sea and to
confer nationality on individuals: we may call them regulatory
competences. Following Arrest Warrant,12 there are hints that it has been
reversed: if a state wishes to project its prescriptive jurisdiction extraterritorially, it must find a recognized basis in international law for doing
so. This shift in focus is, however, largely cosmetic, and in general the
Permanent Court’s statement that ‘all that can be required of a State is
that it should not overstep the limits which international law places upon
its jurisdiction; within these limits, its title to exercise jurisdiction rests in
its sovereignty’ remains correct.13
(i) The territorial principle
The principle that the courts of the place where the crime is committed
may exercise jurisdiction is universally recognized. It is an application of
the essential territoriality of sovereignty, the sum of legal competences
which a state has. In the case of crime, the principle has a number of
practical advantages, including the convenience of the forum and the
presumed involvement of the interests of the state where the crime was
committed. The territorial principle has been given an extensive
application. In the first place, there is subjective territoriality, which
creates jurisdiction over crimes commenced within the state even if
completed or consummated abroad.14 Generally accepted and often
applied is the objective territorial principle, according to which jurisdiction
is founded when any essential constituent element of a crime is
consummated on the forum state’s territory. The classic illustration is the
firing of a gun across a border causing death on the territory of the forum,
but the principle can be employed
References
(p. 459) to found jurisdiction in cases of conspiracy,15 violation of
antitrust16 and immigration laws17 by activity abroad, and in many other
fields of policy.18 The effect of the two principles combined is that
whenever the constituent elements of a crime occur across an interstate
boundary both states have jurisdiction.
The objective principle received general support in the Lotus; what was
controversial was its application to collisions in international waters.
France contended that the flag state alone had jurisdiction over acts
performed on board on the high seas. Turkey argued, inter alia, that
vessels on the high seas were to be considered part of the territory of the
flag state. By the casting vote of the President, the Court decided that
Turkey had not acted in conflict with the principles of international law by
exercising criminal jurisdiction. The basis of the majority view (with which
Judge Moore concurred) was the principle of objective territorial
jurisdiction. The principle was familiar but to apply it the Court had to
assimilate the Turkish vessel to Turkish national territory.19 This crucial
step did not attract a majority, and is out of line with subsequent
developments.
(ii) The nationality principle
Nationality, as a mark of allegiance and an aspect of sovereignty, is also
generally recognized as a basis for jurisdiction over extra-territorial
acts.20 The application of the principle may be extended by reliance on
residence21 and other connections as
References
(p. 460) evidence of allegiance owed by aliens,22 and also by ignoring
changes of nationality.23 For example the UK legislature has conferred
jurisdiction on its courts in respect of, inter alia,
treason,24 murder,25 bigamy,26soccer hooliganism,27 child sexual
abuse,28 and breaches of the Official Secrets Acts29 wherever committed
by British nationals or residents.
The territorial and nationality principles (as well as the increasing
incidence of dual nationality) create parallel jurisdictions and possible
double jeopardy, and many states place limitations on the nationality
principle,30 for example, by confining it to serious offences.31 But such
limitations are not required by international law.32Nationality provides the
primary criterion for criminal acts in locations such as Antarctica, where
the ‘territorial’ criterion is not generally recognized.33
For nationality jurisdiction, it is often asserted that the person over whom
the state purports to exercise its prescriptive jurisdiction must have been
a national at the time of the offence. Otherwise, it is argued, a violation of
the principle of nullum crimen sinelege could occur.34 However, state
practice is varied, with some states providing for nationality jurisdiction
over persons who subsequently acquire their nationality.35
References
36
(p. 461) (iii) The passive personality principle36
If the nationality head of jurisdiction may be characterized as one of
‘active personality’, the reverse of the coin is ‘passive personality’.
According to this principle aliens may be punished for acts abroad
harmful to nationals of the forum. This is considerably more controversial,
as a general principle, than the territorial and nationality principles.
In Cutting a Mexican court exercised jurisdiction in respect of the
publication by a US citizen in a Texas newspaper of matter defamatory of
a Mexican citizen. The court applied the passive nationality principle
among others. This led to diplomatic protests from the US, although the
outcome was inconclusive.37
In the Lotus, the Turkish penal code provided for punishment of acts
abroad by foreigners against Turkish nationals; in effect it was a
comprehensive exercise of passive personality jurisdiction. The Court
declined to assess the law as such. The question was whether the
specific factual situation fell within Turkish jurisdiction or not;38 it held that
it did, invoking the protective principle.39 Judge Moore, in a separate
opinion, agreed with the majority as to the outcome but expressly
rejected the protective principle.40
The passive personality principle has been much criticized. One early
complaint was that it served no wider goal of criminal justice: it did not
correspond to a domestic conceptualization of jurisdiction, would not
close an enforcement gap and lacked any social aim of
repression.41 There is also concern that it could expose individuals to a
large number of jurisdictions.42 Such objections have not, however,
prevented the development of something approaching a consensus on
the use of passive personality in certain cases, oft en linked to
international terrorism.43 Moreover, aut dedere aut iudicare provisions in
most criminal law treaties authorize the use of passive personality
jurisdiction as between states parties.44
References
(p. 462) (iv) The protective or security principle45
Nearly all states assume jurisdiction over aliens for acts done abroad
which affect the internal or external security or other key interests of the
state, a concept which takes in a variety of offences not necessarily
confined to political acts.46 Currency, immigration, and economic
offences are frequently punished. The UK and the US allow significant
exceptions to the doctrine of territoriality, though without express reliance
upon the protective principle. Thus, courts of the former have punished
aliens for acts on the high seas concerning illegal immigration,47 and
perhaps considerations of security helped the House of Lords in Joyce v
Director of Public Prosecutions48 to the view that an alien who left the
country in possession of a British passport owed allegiance and was
accordingly guilty of treason when he subsequently broadcast
propaganda for Germany in wartime. Insofar as the protective principle
rests on the protection of concrete interests, it is sensible enough, but the
interpretation of the concept of ‘protection’ may vary widely. For example,
the protective principle was invoked in the Eichmann case in relation to
the Jewish victims of the accused,49 despite the fact that Israel was not a
state when the offences in question occurred.50
The categories of what may be considered a vital interest for the
purposes of protective jurisdiction are not closed,51 and no criteria exist
for determining such interests beyond a vague sense of gravity.
Ultimately, the identification of exorbitant jurisdiction may be a matter of
knowing it when one sees it.52
(v) The effects doctrine
In addition, it has been suggested that there exists a further head of
prescriptive jurisdiction, the so-called ‘effects doctrine’.53 This may gain
traction where an
References
(p. 463) extra-territorial offence causes some harmful effect in the
prescribing state, without actually meeting the criteria of territorial
jurisdiction or representing an interest sufficiently vital to the internal or
external security of the state in question to justify invoking the protective
principle.
54
While controversial, the doctrine is not objectionable in all cases.54 It was
at least acknowledged by the majority in the Lotus55 and by certain
members of the International Court in Arrest Warrant.56 Today, ‘effects’ or
‘impact’ jurisdiction is practised largely by the US and, with greater
qualifications, by the EU.57 In Alcoa, for example, Judge Learned Hand
stated that it was ‘settled law’ that ‘any state may impose liabilities, even
upon persons not within its allegiance, for conduct outside its borders
which has consequences within its borders which the state
reprehends’,58 a position since followed extensively in US antitrust
jurisprudence.59
Since Alcoa, the effects doctrine and its expansion have, in many cases,
been driven by the US approach to jurisdiction. Whereas previously this
resembled closely the conception of various heads of prescriptive
jurisdiction, it has now changed its perspective; it is possible to speak of
antitrust jurisdiction, tort jurisdiction, and taxation jurisdiction, with some
of these having a broader extra-territorial reach than others. This has the
potential to muddy the waters, resulting in the uncertain position of the
effects doctrine within international law as either a head of prescription in
its own right, or a subject-driven application of the territorial or protective
principles with unusual reach.60 These policies have provoked a strong
reaction from a number of foreign governments. The UK61 and other
states have enacted legislation to provide defensive measures against
American policy. Similar episodes have arisen as a result of the
application of the US Export Administration Act in particular, in the face of
US measures directed against non-American corporations involved in
contracts relating to the construction of the West Siberian pipeline.62 Both
the European Community63 and the UK64protested and asserted the
illegality of the actions of US authorities
References
(p. 464) intended to prevent the re-export of machinery of American
origin and the supply of products derived from American data. But it must
be noted that competition legislation in several European states is based
on principles similar to those adopted in the US.65 Moreover, the
European Court of Justice has applied a principle similar to the American
‘effects doctrine’ in respect of company subsidiaries66 and the Advocate67
General espoused this view in his Opinion in the Woodpulp Cases.67 In
any event US legislation has continued to provoke protests from the EU
and from individual states.68 This legislation includes the Cuban
Democracy Act (1992),69 the D’Amato-Kennedy Act (1996),70 and the
Helms-Burton Act (1996).71
(B) Jurisdiction Over Ships and Aircraft
Jurisdiction over ships on the high seas or exercising the right of innocent
passage through the territorial sea or EEZ is discussed in
chapters 11 and 13. The question here is the relation between the
territorial sovereign and the flag state in the matter of jurisdiction over
private vessels in ports or other internal waters.72 The view that a ship is
a floating part of state territory has long fallen into disrepute, but the
special character of the ‘internal economy’ of ships is still recognized, the
rule being that the law of the flag depends on the nationality of the
ship73 and that the flag state has regulatory responsibility for and
jurisdiction over the ship.74 But when a foreign ship enters a port, except
perhaps as a consequence of distress,75 temporary allegiance is owed to
the territorial sovereign and concurrent jurisdiction arises.76
References
(p. 465) There has been debate on the limits of the local criminal
jurisdiction. In principle, there are no limits provided action is taken with
regard only to breaches of local law and not to breaches of rules set by
the law of the flag state.77 During the preparatory work of the Hague
Codification Conference of 1930, the UK stated its opinion on the issues
as follows:
[T]he State is entitled to exercise jurisdiction over a foreign
merchant vessel lying in its ports and over persons and goods
on board…In criminal matters it is not usual for the authorities to
intervene and enforce the local jurisdiction, unless their
assistance is invoked by, or on behalf of the local representative
of the flag State, or those in control of the ship, or a person
directly concerned, or unless the peace or good order of the port
is likely to be affected. In every case it is for the authorities of
the State to judge whether or not to intervene.78
On this view derogation from the exercise of local criminal jurisdiction is a
matter of comity and discretion, but may be invoked in practice where: (a)
the act in question disturbs the peace and good order of the port; (b)
assistance is requested by the captain or a representative of the flag
state of the ship; or (c) a non-crew member is involved.79
Quite aside from matters relating to the internal economy of ships, port
state jurisdiction is increasingly recognized as a remedy for the failure of
flag states to exercise effective jurisdiction and control of their ships. The
jurisdiction is no longer used solely to enforce local questions of civil and
criminal law, but is actively playing a role in the international regulatory
sphere. This is especially notable in the context of maritime pollution, with
Article 218 of the UN Convention on the Law of the Sea (UNCLOS)
granting port states the right to institute proceedings or impose monetary
penalties for illegal discharges that occur outside of their territorial sea
and EEZ. Port state jurisdiction is also used as a response to illegal and
unregulated fishing on the high seas. Under Article 23 of the Straddling
Stocks Agreement,80 a port state has the right (and indeed duty) to take
certain steps to combat illegal fishing, revolving centrally around the
inspection of documents, fishing gear, and the catch itself. This provision
is not the equivalent of UNCLOS Article 218 optimized for use in relation
to fishing, but it does underwrite the use of existing port state jurisdiction
in a certain fashion. The same may be said of Article 15 of the UNESCO
Convention on the Protection of Underwater Cultural Heritage,81which
requires states parties to prohibit the use of their ports in support
References
(p. 466) of any activity directed at underwater cultural heritage which is
not in conformity with the Convention.
Aircraft initially posed some problems for the jurisdictional rules of
domestic and international law, and crimes on board civil aircraft over the
high seas or in the airspace of foreign states were the subject of
considerable variations of opinion.82 In the UK, for example, the extraterritorial commission of common law offences such as murder and theft
83
is punishable,83 but many provisions, apart from aeronautical regulations
made under the Civil Aviation Act 1949, have no application to crimes on
aircraft abroad or over the high seas.84 The practice of states on the
relation between the national law of the aircraft and the law of any foreign
territory overflown was not very coherent; however, work sponsored by
the International Civil Aviation Organization produced the Convention on
Offences and Certain Other Acts Committed on Board Aircraft (Tokyo
Convention),85 which in Article 3(1) provides that the state of registration
of the aircraft is competent to exercise jurisdiction over offences and acts
committed on board and further requires the state to take necessary
measures to claim jurisdiction over such acts (Article 3(2)). Article 3(3)
provides that criminal jurisdiction exercised in accordance with national
law is not excluded.
In addition, Article 4 of the Tokyo Convention prohibits states other than
the state of registration interfering with an aircraft in flight, save where an
offence committed on board: (a) has effect in the territory of the
intercepting state; (b) has been committed by or against a national or
permanent resident of such state; (c) is against the security of the state;
or (d) consists of a breach of any rules or regulations relating to the flight
of aircraft .
Aircraft hijacking has prompted multilateral conventions creating duties
for states to punish the seizure of aircraft in flight and to exercise
jurisdiction in specified conditions, for example, when the offence is
committed on board an aircraft registered in the contracting state.86
References
(p. 467) (C) Universal Jurisdiction87
(i) Defining universal jurisdiction
Defined simply, universal jurisdiction amounts to the assertion of criminal
jurisdiction by a state in the absence of any other generally recognized
head of prescriptive jurisdiction.88 In O’Keefe’s words:
universal jurisdiction can be defined as prescriptive jurisdiction over offences committed
abroad by persons who, at the time of the commission, are non-resident aliens, where
such offences are not deemed to constitute threats to the fundamental interests of the
prescribing state or, in appropriate cases, to give rise to effects within its territory.89
A considerable number of states have adopted, usually with limitations, a
principle allowing jurisdiction over acts of non-nationals where the
circumstances, including the nature of the crime, justify repression as a
matter of international public policy. In this sense, universal jurisdiction is
defined by the character of the crime concerned, rather than by the
presence of some kind of nexus to the prescribing state. The prosecution
of crimes under customary international law is often expressed as an
acceptance of the principle of universality,90but this is not strictly correct,
since what is punished is the breach of international law. The case is thus
different from the punishment, under national law, of acts which
international law permits and even requires all states to punish, but does
not itself declare criminal.
(ii) The content of universal jurisdiction
How then to define the content of universal jurisdiction? As alluded, some
commentators have argued for its extension on moral or public policy
grounds, and that universal jurisdiction accordingly applies to certain
crimes under customary international law the commission of which is
generally accepted ‘as an attack upon the international order’.91 As the
District Court of Jerusalem in the Eichmann case remarked:
The abhorrent crimes defined in [the Israeli Law] are not crimes under Israeli law alone.
These crimes, which struck at the whole of mankind and shocked the conscience of
nations, are grave offences against the law of nations itself (delicta juris gentium).
Therefore, so far from international law negating or limiting the jurisdiction of countries
with respect to such
References
(p. 468) crimes, international law is, in the absence of an International Court, in need of
the judicial and legislative organs of every country to give effect to its criminal
interdictions and bring the criminals to trial. The jurisdiction to try crimes under
international law is universal.92
The original crime to which universal jurisdiction attached was that of
piracy iure gentium,93 which was in turn followed by slavery.94 In modern
times, it has been extended to the so-called ‘core crimes’ of customary
international law,95 being genocide,96 crimes against humanity and
breaches of the laws of war, and especially of the Hague Convention of
1907 and grave breaches of the Geneva Conventions of 1949.97 Torture
within the meaning of the Torture Convention 1984 is also likely to be
subject to universal jurisdiction.98
Beyond such clear cases, public policy is less useful as a criterion. There
are no examples of prosecutions for the crime of aggression under
universal jurisdiction, but given the relatively recent formulation of an
agreed definition of the crime in international law99 this is not
surprising.100 At the same time, however, the intense political implications
of the charge of aggression may also explain the unwillingness of states
to attempt prosecutions on the basis of universal jurisdiction. For now,
therefore, it is questionable as to whether aggression can be considered
a crime of universal jurisdiction. The better view may be that it is not.
Thus, notwithstanding the fact that the ‘moral’ justification for universal
jurisdiction has dominated discussion of this subject,101 it does not
explain the reality of universal jurisdiction, which is oft en influenced—
sometimes decisively—by political considerations. It seems that
attempting to derive a coherent theory for the extension of universal
jurisdiction with respect to some crimes but not others may be to
References
(p. 469) overstate the situation: rather, it may simply be that such
jurisdiction is extended on a case-by-case basis in customary
international law, with the notion of an attack upon the international order
being a necessary but not sufficient condition.
(iii) Universal jurisdiction in absentia?
The most substantial consideration of universal jurisdiction by an
international court or tribunal occurred in Arrest Warrant, even though the
discussion was obiter (the Court felt it could address immunity without
deciding upon jurisdiction).102 The opinions of those judges who did
consider universal jurisdiction reveal a deeply divided court. Four judges
(President Guillaume, Judges Ranjeva, Rezek, and Judge ad hoc Bula-
Bula) were opposed to the use of the jurisdiction, whereas six (Judge
Koroma, Judges Higgins, Kooijmans, Buergenthal in their joint separate
opinion, Judge al-Khasawneh (impliedly), and Judge ad hoc van den
Wyngaert) supported its application by Belgium.103
On examination, however, of those judges who opposed the use of
universal jurisdiction by Belgium, only President Guillaume104 and Judge
Rezek105 disagreed with a concept of universal jurisdiction in general.
Judge Ranjeva and Judge ad hoc Bula-Bula criticized only its use in
absentia, that is, where the prescribing state did not have custody of the
accused.106
Although the notion of universal jurisdiction in absentia is not unknown in
academic literature prior to the Arrest Warrant case,107 it is not
compelling. Universal jurisdiction is a manifestation of a state’s
jurisdiction to prescribe. The question whether jurisdiction is exercised in
personam or in absentia is a manifestation of a state’s jurisdiction to
enforce.108 In the context of Arrest Warrant, the Belgian law on war
crimes and the issue of an arrest warrant in support of that law were
separate acts. To speak of universal jurisdiction in absentia is to conflate
prescriptive and enforcement jurisdiction.109
(iv) Treaty-based quasi-universal jurisdiction110
Another, more restricted, form of quasi-universal jurisdiction arises
from sui generis treaty regimes incorporating penal characteristics. These
regimes have for the most
References
(p. 470) part been developed in order to respond to particular behaviours
viewed as undesirable; they require states parties to exercise mandatory
prescriptive jurisdiction over certain individuals within their territories,
independent of any ordinary nexus. They are frequently characterized by
the obligation of aut dedere aut iudicare, which will compel a state party
to either try the accused or extradite to a state that is willing to do so.111
An example112 arises in the context of the Convention for the
Suppression of Unlawful Seizure of Aircraft (Hague Convention).113 This
provides in Article 4(2) that:
Each Contracting State shall likewise take such measures as may be necessary to
establish its jurisdiction over the offence in the case where the alleged offender is
present in its territory and it does not extradite him pursuant to Article 8 to any of the
States mentioned in paragraph 1 of this Article.
This formula has been applied, more or less identically, in a considerable
number of international conventions.114 Early examples include the aut
dedere aut iudicare obligations also appeared in the Geneva
Conventions in 1949.115 Chief amongst the more recent treaties are the
12 ‘sectoral’ anti-terrorism agreements which were developed
References
(p. 471) when it became clear that meaningful agreement on a generic
definition of ‘terrorism’ was unreachable.116
To describe the jurisdictional regime established by these treaties as
‘universal’ is a misnomer.117 As Ryngaert notes:
The operation of the aut dedere requirement is indeed limited to
States Parties, which pool their sovereignty and explicitly
authorize each other to exercise jurisdiction over crimes
committed by their nationals or on their territory.118
That, however, has not prevented certain states from insisting on the
application of sui generis bases of jurisdiction to nationals of non-states
parties to the treaties in question. The US is notable in this regard, often
exercising jurisdiction over suspected terrorists who are nationals of
states not party to the relevant sectoral agreements.119 In Yunis, for
example, a Lebanese national was prosecuted with respect to the
hijacking of Royal Jordanian Airlines Flight 402 from Beirut to Amman.
The plane carried several American nationals, but was registered in
Jordan, flew the Jordanian flag and never landed on American soil or flew
over American airspace. The Court found that it had universal jurisdiction
to prosecute with respect to the act of hijacking and the taking of
hostages by the accused. Although jurisdiction was grounded on the fact
that Lebanon was a state party to the Hague and Montreal Conventions,
the Court further held that jurisdiction was also furnished by the
provisions of the Hostage Taking Convention. This was despite the fact
that Lebanon and Jordan were not parties to that treaty.120
3. Civil Prescriptive Jurisdiction
There are different views as to the law concerning civil jurisdiction. On
one view, exorbitant assertions of civil jurisdiction could lead to
international responsibility. Further, as civil jurisdiction is ultimately
reinforced by criminal sanctions through contempt of court, there is in
principle no great difference between the problems created by assertion
of civil and criminal jurisdiction over aliens.121 In particular, antitrust
References
(p. 472) legislation (the source of many of the difficulties in practice)
involves a process which, though formally ‘civil’, is in substance coercive
and penal, as is the field of securities regulation.122 On another view,
there is little by way of limitation on a state’s exercise of civil jurisdiction
in what are effectively private law matters; different states assert
jurisdiction on different grounds, but deference to foreign law through
conflicts rules mitigates any exorbitant elements.
(A) The Basis of Civil Jurisdiction Indifferent Legal
Traditions
Notwithstanding broad similarities, the different legal traditions conceive
of the civil jurisdiction to prescribe in different ways. This division is
particularly apparent when considering the willingness of municipal courts
to exercise jurisdiction over a foreign party as an actualization of
prescriptive jurisdiction.
In order to satisfy international law standards in regard to the treatment of
aliens a state must in normal circumstances maintain a system of courts
empowered to decide civil cases and, in doing so, be prepared to apply
private international law where appropriate in cases containing a foreign
element.123 Municipal courts may be reluctant to assume jurisdiction in
cases concerning a foreign element, adhering to the territorial principle
conditioned by the situs of the facts in issue, and supplemented by
criteria relating to the concepts of allegiance or domicile and doctrines of
submission to the jurisdiction (including tacit submission on the basis of
ownership of property in the forum state).124
As a general rule, the common law systems will assert jurisdiction over a
foreign defendant who can be served with originating process.125 Under
the most basic formulation, a writ may be served whenever the defendant
sets foot126 or establishes a commercial presence127 in the jurisdiction,
no matter how temporarily. Where the defendant has no such presence,
a writ may nonetheless be served outside of the jurisdiction in certain
cases.128 Though civil lawyers complain of the perceived exorbitance
References
(p. 473) of the service rule,129 common lawyers point out that the
defendant may challenge the exercise of the jurisdiction on the basis that
the appropriate forum for the hearing of the dispute is elsewhere.130
Some common law jurisdictions have extended the concept of jurisdiction
by service further still. In the US, ‘minimum [territorial] contacts’131 will
suffice for the purpose of finding jurisdiction over the defendant, a term
which has been subject to liberal interpretation by the courts.132 For
example, the mere presence of a subsidiary of a foreign corporation in
the US may provide the necessary minimum contact for the parent
corporation.133
In contrast, the civil law approach to the exercise of jurisdiction is
predicated on the principle that, where possible, the defendant ought to
be sued in its domicile. This may be seen in EC Regulation 44/2001 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters (the Brussels 1 Regulation),134 Article 2 of which
provides that ‘[s]ubject to this Regulation, persons domiciled in a Member
State [of the EU] shall, whatever their nationality, be sued in the courts of
that Member State’.135 The Regulation, however, provides alternative
bases of jurisdiction that are not so rigorously territorial where the
defendant is already domiciled in the EU, including, inter alia, the locus
delicti in cases of tort (Article 5(3)), in cases of contract, the place of
performance of the obligation which has been breached (Article 5(1)(a)),
the place of delivery of goods or performance of services (Article 5(1)(b))
or, as regards commercial disputes arising out of the operations of a
branch, agency or other establishment, the place in which the branch,
agency or other establishment is situated (Article 5(5)).136
References
(p. 474) In a further significant difference with the common law, the notion
of discretionary refusal of jurisdiction is anathema to the civil law. As a
general rule, if properly seised, a court will be unable to decline
jurisdiction unless expressly authorized to do so by the terms of the
Regulation.137 For example, under Article 27, in the event of lis pendens,
the court second seised must stay the proceedings before it in favour of
the court first seised unless the latter determines that it lacks
jurisdiction.138
Whilst this approach has the virtue of certainty and consistency, its
rigidity may lead to unfortunate practical consequences. In Owusu,139 for
example, a single English defendant and five Jamaican defendants were
sued in the English courts with respect to an alleged tort taking place in
Jamaica. Although the forum conveniens was clearly Jamaica, the
mandatory wording of Article 2 and the English domicile of one of the
defendants prevented the court from declining jurisdiction.
(B) Jurisdiction and the Conflict of Laws140
Conflict of laws, also known as private international law, is concerned
with issues of the jurisdiction of national courts, the municipal law
applicable to disputes with foreign elements, and the cross-border
enforcement of judgments. It is usually considered to be merely municipal
law, and a bright line is drawn between its study and the study of public
international law. If it must be considered international law, the argument
runs, then it is international only in the sense that it involves competing
and horizontal ‘inter-national’ claims.
According to Mills, the adoption of an international systemic perspective
on the conflict of laws reveals an ‘essential confluence’ of public and
private international law, sharing as they do similar intellectual
141
progenitors.141 Nationality, for example, is the defining jurisdictional
principle for civil legal systems. Article 15 of the French Civil Code
provides that ‘French persons may be called before a court of France for
obligations contracted by them in a foreign country, even with an alien’.
Passive personality is also the focus of Article 14 of the French Civil
Code, which permits a foreign person to be called before the French
courts with respect to obligations entered into with a French national.
The influence of the territoriality principle in private international law is
likewise pervasive, notably in common law systems where the presence
of the defendant within the jurisdiction is sufficient to ground the court’s
adjudicative power. This is rightly
References
(p. 475) controversial, for under the public international law conception of
territoriality, the act or thing which is the subject of adjudicative power
must be done within the jurisdiction; the subsequent presence of the
defendant will be insufficient. That said, this perceived overreach is
reduced by the use of forum non conveniens to decline jurisdiction where
another forum is better suited to hear the matter; in the US, consideration
of ‘reasonableness’ may also come into play.142 Territoriality is also (less
controversially) present in Article 22(1) of the Brussels 1 Regulation,
which provides for the exclusive jurisdiction for certain courts, regardless
of the defendant’s domicile, where the proceedings in question have as
their object rights in rem in immovable property or tenancies in
immovable property.
(C) The Alien Tort Statute and Cognate Legislation143
The universality principle, as expressed in the Eichmann case, is most oft
en associated with the prosecution of particularly heinous crimes. Only a
few states assert universal civil jurisdiction, that is, prescriptive
jurisdiction absent any minimal territorial or national nexus to the delict in
question.144 The example par excellence is the United States’ Alien Tort
Claims Act 1789, now codified as the Alien Tort Statute (ATS).145
The ATS provides in its relevant part that ‘[t]he district courts shall have
original jurisdiction of any civil action by an alien for a tort only, committed
in violation of the law of nations or a treaty of the United States’.
Apparently enacted for the purpose of providing a recourse in tort for acts
of piracy or the violation of safe conduct or of the rights of
ambassadors,146 the statute fell dormant for almost two centuries before
gaining modern importance in Filartiga v Peña-Irala,147 where the
Second Circuit Court of Appeals held that it was to be read
as incorporating current customary international law protective of
individual rights.
An actionable ATS violation will occur only where (a) the plaintiff is an
alien, (b) the defendant148 is responsible for a tort, and (c) the tort in
question violates international
References
(p. 476) law.149 Not every violation of international law will, however, be
considered actionable: the Supreme Court in Sosa v Alvarez-Machain,
while falling short of articulating a coherent category, limited the scope of
the statute to ‘norm[s] of an international character accepted by the
civilized world’.150 In this sense, the ATS draws its legitimacy at least to
some extent from the same well-spring as universal criminal jurisdiction
over genocide, war crimes, and crimes against humanity.151
Perhaps because of its prescriptive and procedural limitations, the ATS
has been the subject of surprisingly little opposition.152 Whilst European
states may prefer criminal or administrative remedies for gross human
rights violations, they do not seem resistant in principle to ‘universal’ tort
jurisdiction of this kind, though they remain opposed to the perceived
exorbitance of the US regime of civil jurisdiction in personam.153
(D) Conclusion
Notwithstanding the prevailing understanding of a conceptual rift between
public and private international law, the two share a certain theoretical
underpinning. Although perhaps not recognized by practitioners, states
are certainly taking action to unify their approaches to conflict of laws,
and moreover, doing it through the conclusion of treaties, the tool of
public international law. Aside from those regimes concluded on a
regional basis,154 global international conventions have also emerged,
notably the Hague Conventions on Private International Law and on
International Civil Procedure.155
4. The Separateness of the Grounds of
Jurisdiction
(A) The Relationship Between the Separate Grounds
The status of treaty-based crimes under international law involves special
considerations and can be left on one side. The various principles held to
justify jurisdiction over
References
(p. 477) aliens are commonly listed as independent and
cumulative,156 although some may be labelled ‘subsidiary’ to some
others.157 However, it must be remembered that the ‘principles’ are in
substance generalizations of a mass of national provisions which by and
large do not reflect categories of jurisdiction specifically recognized by
international law. It may be that each individual principle is only evidence
of the reasonableness of the exercise of jurisdiction.158 The various
principles often interweave in practice. Thus, the objective applications of
the territorial principle and also the passive personality principle have
strong similarities to the protective or security principle. Nationality and
security may go together, or, in the case of the alien, factors such as
residence may support an ad hoc notion of allegiance. These features of
the practice have led some jurists to formulate a broad principle resting
on some genuine or effective link between the crime and the state of the
forum.159
(B) Consequences of Excess of Prescriptive
Jurisdiction160
(i) The legal position
If enforcement action is taken in a case of exorbitant jurisdiction with
consequent injury, an international wrong will presumably have been
committed. The consequences of the mere passage of legislation
asserting exorbitant jurisdiction remain an open question. The situation is
clouded by the uncertain status of the statement in the Lotus that, in the
absence of a rule in international law to the contrary, a state may do
whatever it pleases;161 although the various separate opinions in
the Arrest Warrant case may have signalled the reversal of this
position,162 the reversal itself is inchoate, and it remains to be seen
whether it represents merely a cosmetic shift in emphasis or something
more substantive.163 In part, this is due to the fact that although
vigorously
References
(p. 478) criticized and perceived widely to be
obsolete,164 the Lotus remains the only judgment of an international court
to tackle directly this particular aspect of jurisdiction.165
(ii) Practical consequences
As a practical matter, whilst states may protest the use of exorbitant
prescriptive jurisdiction by others, unless the prescribing state attempts to
enforce the jurisdiction claimed, it is unlikely that any substantive legal
action will be taken. As O’Keefe notes, although the concepts of
jurisdiction to prescribe and jurisdiction to enforce are logically
independent, they are practically intertwined.166 At the same time, a
prescriptive statement—even absent immediate enforcement action—is
fundamentally a threat, which may compel foreign nationals to alter their
behaviour.167 This may cause the other state to take its own action in the
form of a ‘blocking statute’, being a law enacted in one jurisdiction to
obstruct the local (extra-jurisdictional) application of a law enacted in
another jurisdiction.168
5. Enforcement Jurisdiction
169
(A) The Basic Principle169
As with prescriptive jurisdiction, a state’s use of enforcement jurisdiction
within its own territory is uncontroversial. By contrast, the unilateral and
extra-territorial use of enforcement jurisdiction is impermissible. As the
Permanent Court said in the Lotus:
[T]he first and foremost restriction imposed by international law upon a state is that—
failing the exercise of a permissive rule to the contrary—it may not exercise its power in
any form in the territory of another State. In this sense jurisdiction is certainly territorial; it
cannot be exercised by a State outside its territory except by virtue of a permissive rule
derived from international custom or a convention.170
(p. 479) The governing principle of enforcement jurisdiction is that a state
cannot take measures on the territory of another state by way of
enforcement of its laws without the consent of the latter.171 Persons may
not be arrested, a summons may not be served, police or tax
investigations may not be mounted, orders for production of documents
may not be executed, on the territory of another state, except under the
terms of a treaty or other consent given.172 One key example of such
consent is a Status of Mission or Status of Forces Agreement (SOMA or
SOFA), whereby one state consents to the presence of another’s troops
on its territory and to related military jurisdiction.173
(B) Enforcement with Respect to Extra-Territorial Activities
The principle of territoriality is not infringed just because a state takes
action within its own borders with respect to acts done in another state.
But the correctness of this position has not prevented controversy from
arising. This is especially the case when considering the use by US
courts of the ‘effects doctrine’ to promote certain prescriptive objectives in
the field of economic regulation, especially antitrust law. US courts in, for
example, Alcoa174 and Watchmakers of Switzerland,175 have taken the
view that whenever activity abroad has consequences or effects within
the US which are contrary to local legislation then the American courts
may make orders requiring the disposition of patent rights and other
property of foreign corporations, the reorganization of industry in another
country, the production of documents, and so on. The American doctrine
appears to be restricted to agreements abroad intended to have material
176
effects within the US and actually having such effects.176 Such orders
may be enforced by action within the US against individuals or property
present within the territorial jurisdiction, and the policy adopted goes
beyond the normal application of the objective territorial principle. US
courts have, in the past, adopted a principle of the balancing of the
various national interests involved, which, though unhelpfully vague,
could result in some mitigation of the cruder aspects of the ‘effects
doctrine’.177
References
(p. 480) The courts, the US government,178 and foreign governments in
reacting to US measures assume that there are some limits to
enforcement jurisdiction but there is no consensus on what those limits
are.179 The UK view appears to be that a state ‘acts in excess of its own
jurisdiction when its measures purport to regulate acts which are done
outside its territorial jurisdiction by persons who are not its own nationals
and which have no, or no substantial, effect within its territorial
jurisdiction’.180 Jennings has stated the principle ‘that extra-territorial
jurisdiction may not be exercised in such a way as to contradict the local
law at the place where the alleged offence was committed’.181 In the case
of corporations with complex structures and foreign-based subsidiaries, a
principle of substantial or effective connection could be applied as a basis
for jurisdic-tion.182 This approach would accord with the relevant notions
of the conflict of laws, in particular, the ‘proper law’ of a transaction. The
present position is probably this: a state has enforcement jurisdiction
abroad only to the extent necessary to enforce its legislative jurisdiction.
This latter rests upon the existing principles of jurisdiction and these, it
has been suggested, are close to the principle of substantial connection.
(C) Recognition and Enforcement Abroad
(i) Criminal jurisdiction
In a criminal context, enforcement jurisdiction will ordinarily entail the
pursuit and arrest of the accused, detention and trial, and the carrying out
of any sentence.183
With respect to extra-territorial enforcement action leading to the capture
of the accused, state consent can be given on ad hoc basis,184 but in
circumstances where movement between two states is relatively regular
and straightforward, bi- or multilateral agreements may be entered into in
order to provide standing orders for enforcement jurisdiction between
states. The most notable of these is the Schengen
References
(p. 481) Convention185 between some members of the EU. Article 40(1)
provides that where the officials of one contracting party are keeping
under surveillance a person suspected of an extraditable offence, they
may request that surveillance be continued in the territory of another
contracting party by officials of that party. Article 40(2) further provides
that in circumstances where, for particularly urgent reasons, authorization
cannot be requested from the other contracting party, the officials
carrying out the surveillance may be authorized to continue the
surveillance in the territory of the other contracting party. On similar lines,
Article 41 of the Convention permits the officials to engage in hot pursuit
of a subject across state borders, where due to the urgency of the
situation, the permission of the other contracting state cannot be
obtained.
More generally, Article 39(1) provides that, subject to the requirements of
municipal law, the police authorities of each contracting party undertake
to assist each other for the purpose of detecting and preventing criminal
offences, though this does not expressly mandate extra-territorial
enforcement. Article 39 is supplemented in this respect by the
Convention on Mutual Assistance in Criminal Matters between the
Member States of the European Union.186 Treaties of mutual criminal
assistance, like enforcement agreements, can also be concluded on a
bilateral or multilateral basis.187
Unlike activities connected to the surveillance of the accused and his or
her arrest, trial and incarceration is rarely carried out in an extra-territorial
capacity, particularly in circumstances not linked to a SOMA or SOFA.
But when the Libyan government refused to extradite those thought to be
responsible for the 1988 bombing of Pan Am Flight 103 over Lockerbie,
Scotland, unless they were tried in a neutral country, the UK and the
Netherlands entered into an agreement to permit a Scots court applying
Scots criminal law to sit in a former US Air Force base in Zeist in order to
try the accused.188
References
(p. 482) Provision is also made by treaty for the enforcement of foreign
criminal judgments. Here, there is generally a divide between the civil
and common law approaches to the subject, with the latter rejecting in
principle the enforcement of the penal law of another state.189 Civil law
systems are less averse to the concept, as witness the European
Convention on the International Validity of Criminal Judgments.190
Apart from trial in absentia, an unsatisfactory procedure, states have to
depend on the co-operation of the other states in order to obtain
surrender of suspected criminals or convicted criminals who are, or have
fled, abroad. Where this co-operation rests on a procedure of request
and consent, regulated by certain general principles, the form of
international judicial assistance is called extradition.191 Due to the
profusion of extradition treaties, it is possible to speak of an international
law of extradition, a term which does not imply the existence of custom,
but of a significant corpus of conventional law exhibiting certain common
elements. Such treaties are usually bilateral,192 but the European
Convention on Extradition (ECE)193 is in effect between EU Member
States (though it has been largely replaced by the European arrest
warrant (EAW), which combines elements of arrest and
extradition).194 The UN has also issued a Model Treaty on Extradition
(UNMTE).195 Common conditions include double criminality (the act in
question must be criminal under the laws of both the requesting and
requested states),196 non-extradition for ‘political offences’,197 and the
rule of speciality which prevents prosecution founded on a treaty-based
extradition
References
(p. 483) from proceeding on any basis other than that upon which the
request was founded.198 Another significant limitation is the rule ne bis in
idem, which precludes extradition of persons already tried for the same
offence.199 Finally, many states reserve the right to refuse extradition
owing to human rights concerns, for example, where extradition may
mean that the accused is liable to torture,200 or the death penalty.201
Since the attacks by al-Qaeda on the US in 2001, there has been an
increase in ‘informal’ extradition or rendition, though the practice is not
new.202 If it takes place with the consent of the ‘sending’ state, there is no
transgression of international law standards.203 If, however, there is no
extradition of any kind—informal or otherwise— but the suspect is simply
seized by the agents of the receiving state in the absence of any legal
process, then there is clearly a breach of international law.204 This
described generally as ‘extraordinary rendition’, has been practised by
the US since 2001. Depending on the legal system in question, the
attendant illegality may not prevent the trial of the suspect, an application
of the maxim male captus bene detentus.205
(ii) Civil and administrative jurisdiction
With respect to civil and administrative jurisdiction, extra-territorial
enforcement revolves largely around the recognition and enforcement of
judgments and orders abroad. This is one of the central preoccupations
of private international law. In general, the field is parochial, with each
state developing its own process and criteria for recognition and
enforcement. The Brussels 1 Regulation seeks to unify the procedures
References
(p. 484) for the recognition of judgments between EU member
states.206 The judgment of a court of a member state is subject to
automatic recognition (Article 33) and enforcement (Article 38) by the
courts of other member states, with the onus on the defendant to contest
enforcement according to a limited number of clearly defined
exceptions.207
However, the need to approach the court of the jurisdiction where
enforcement is sought is circumvented—in form if not in substance—
when considering certain orders issued by common law courts (notably in
England but also the US) which act in personam on the conscience of a
party properly before the court to restrain its dealings with assets or
processes outside the jurisdiction. The first of these, the so-called
‘freezing injunction’,208 acts in personam to prevent a defendant from
moving, hiding or otherwise dissipating its assets so as to render itself
judgment-proof.209 The injunction neither creates, transfers nor revokes
property rights; it merely affects the capacity of the defendant to exercise
them freely.210 But what the freezing injunction lacks in extra-territorial
form, it makes up for in extra-territorial effect. The scope of the order has
been expanded considerably. First, by virtue of its in personam operation,
the injunction can be granted with respect to assets which are not within
the jurisdiction of the court granting the order.211 Further, it can be given
effect against foreign third parties, normally multinational banks with a
branch within the jurisdiction granting the order.212Finally, it can be
granted in aid of foreign proceedings even where no proceedings are on
foot before the court granting the order.213
The second example is the anti-suit injunction, which acts to restrain a
party subject to the jurisdiction of the court from launching or continuing
proceedings in a foreign court injurious to the defendant in those
proceedings.214 Ordinarily, the claimant in the foreign proceedings must
be already before the court,215 though the relief may be
References
(p. 485) granted autonomously of any domestic proceedings where the
subject-matter of the proceedings216 or the relationship between the
parties217 is such as to give the granting court exclusive jurisdiction.
Although the order is usually granted where the claimant in the foreign
proceedings has commenced them in a manner which is somehow
objectionable, it may also be granted where the foreign claimant has
apparently acted without blame.218
The perceived exorbitance of the common law jurisdictions in respect of
these orders is often criticized on the basis of ‘comity’.219 Comity arises
from the horizontal arrangement of state jurisdictions in private
international law and the field’s lack of a hierarchical system of norms. It
plays the role of a somewhat uncertain umpire: as a concept, it is far from
a binding norm, but it is more than mere courtesy exercised between
state courts. The Supreme Court of Canada said in Morguard v De
Savoye,220 citing the decision of the US Supreme Court in Hilton v
Cuyot,221 that:
Comity is the recognition which one nation allows within its territory to the legislative,
executive or judicial acts of another nation, having due regard both to international duty
and convenience, and to the rights of its own citizens or of other persons who are under
the protection of its law.
Common lawyers have been anxious to justify the development of the
freezing and anti-suit injunctions on the basis of comity.222 For this
reason, as with the doctrine of forum non conveniens, whilst the
jurisdiction to grant the remedy may be easily established, the claimant
must nonetheless persuade the court to exercise its discretion. A
substantial body of jurisprudence has built up around these remedies to
guide the court in its use of discretion. But so far these efforts at
justification have fallen on deaf European ears: the European Court of
Justice has repeatedly disqualified such injunctive measures as
inconsistent with full faith and credit as between EU member state courts,
however dilatory or parochial the latter may be.223
References
(p. 486) 6. A General View of the Law
To conclude, based on this review the following propositions may be
suggested:
First, the exercise of civil jurisdiction in respect of aliens presents
essentially the same problems as the exercise of criminal jurisdiction over
them, though in practical terms there are differences, both procedurally
and in the reactions that can be expected.
Secondly, the two generally recognized bases for prescriptive jurisdiction
of all types are the territorial and nationality principles, but their
application is complemented by the operation of other principles
especially in certain fields. The use of the passive personality principle in
cases of international terrorism appears to be accepted and, over time,
opposition to the use of the effects doctrine by the US and EU in the
pursuit of certain competition law objectives is diminishing. As a general
rule, however, it remains true that if a state wishes to avoid international
criticism over its exercise of extra-territorial jurisdiction, it is better to base
the prescriptive elements on territoriality or nationality.
Thirdly, extra-territorial acts can lawfully be the object of prescriptive
jurisdiction only if certain general principles are observed:
(1) There should be a real and not colourable connection between
the subject-matter and the source of the jurisdiction (leaving aside
cases of universal jurisdiction).224
(2) The principle of non-intervention in the territorial jurisdiction of
other states should be observed, notably in an enforcement
context.225
(3) Elements of accommodation, mutuality, and proportionality
should be duly taken into account. Thus nationals resident abroad
should not be constrained to violate the law of their place of
residence.
(4) These basic principles do not apply or do not apply very
helpfully to (a) certain cases of concurrent jurisdiction, and (b)
crimes against international law within the ambit of universal
jurisdiction. In these areas special rules have evolved. Special
regimes also apply to the high seas, continental shelf, EEZ, outer
space, and Antarctica.
(5) Jurisdiction is often concurrent and there is no hierarchy of
bases for jurisdiction. However, an area of exclusivity may be
established by treaty, as in the case of offences committed on
board aircraft in flight.
References
Footnotes:
1
1
Generally: Mann (1964) 111 Hague Recueil 1; Jennings (1967) 121
Hague Recueil 323, 515–26; Akehurst (1972–73) 46 BY 145;
Mann, Studies in International Law (1973) 1; Bowett (1982) 53 BY 1;
Schachter (1982) 178 Hague Recueil 240; Rosenthal &
Knighton, National Laws and International Commerce (1982);
Lowe, Extraterritorial Jurisdiction (1983); Mann (1984) 186
Hague Recueil 11; Meessen (1984) 78 AJIL 783; Lange & Born
(eds), The Extraterritorial Application of National Laws (1987);
1 Restatement Third §§401–33; Neale & Stephens, International
Business and National Jurisdiction (1988); Stern (1992)
38 AFDI 239; Gilbert (1992) 63 BY 415; Meessen (ed), Extra-territorial
Jurisdiction in Theory and Practice (1996); O’Keefe (2004) 2 JICJ 735;
Oxman, ‘Jurisdiction of States’ (2007) MPEPIL; Ryngaert, Jurisdiction in
International Law (2008); Simma & Müller, in Crawford & Koskenniemi
(eds), Cambridge Companion to International Law (2012) 134. On the
developing area of jurisdiction over the Internet: Wilske & Schiller (1997)
50 Fed Comm LJ 117; Reidenberg (2004–5) 153 U Penn LR 1951;
Kohl, Jurisdiction and the Internet (2007); Schultz (2008) 19 EJIL 799.
2
On adjudicative jurisdiction (also referred to
as judicial or curial jurisdiction): Akehurst (1972–73) 46 BY 145, 152–78;
Schachter (1982) 178 Hague Recueil 9, 244–9; 1 Restatement
Third §§401, 421–33; Cassese (2002) 13 EJIL 853, 858; Oxman,
‘Jurisdiction of States’ (2007) MPEPIL. This refers to the competence of a
municipal court to sit in judgment over a foreign national and may be
better seen as a manifestation of prescriptive jurisdiction: the application
of municipal law by the court is, in effect, the actualization of prescription,
though the carrying out of any judgment or sentence is an expression of
enforcement jurisdiction: O’Keefe (2004) 2 JICJ 735, 737. But the
different elements may be difficult to separate out in this way.
3
Cf the doctrine stated in Nottebohm(Liechtenstein v Guatemala), ICJ
Reports 1955 p 4 (further: chapter 23); Kingdom of Greece v Julius Bär
and Co (1956) 23 ILR 195; and the statements in Application of the
Convention of 1902 Governing the Guardianship of Infants (Netherlands
v Sweden), ICJ Reports 1958 p 55, 109 (Judge Moreno Quintana), 135–6
(Judge Winiarski, diss), 145 (Judge Córdova, diss), 155 (Judge ad hoc
offerhaus, diss).
4
4
Thus jurisdiction may be exercised over stateless persons or over nonnationals by agreement with their state of nationality. Cf European
Agreement for the Prevention of Broadcasts Transmitted from Stations
outside National Territories, 22 January 1965, 634 UNTS 239.
5
E.g. OECD Model Tax Convention on Income and Capital (8th edn,
2010); UN Model Double Taxation Convention between Developed and
Developing Countries, ST/ESA/PAD/SER.E/21 (2001).
6
Fitzmaurice (1957) 92 Hague Recueil 2, 212–17; Mann (1964) 111
Hague Recueil 1, 82ff; Jennings (1957) 33 BY 146; Fawcett, (1962)
38 BY 181; Harvard Research (1935) 29 AJIL Supp 439;
Higgins, Problems and Process (1994) ch 4; Ryngaert (2008); Oxman,
‘Jurisdiction of States’ (2007) MPEPIL.
7
An early cause célèbre was R v Keyn (The Franconia) (1878) 2 Ex D
63, which concerned criminal jurisdiction over the German captain of a
German merchant ship which collided with a British vessel in the UK
territorial sea. The Court denied jurisdiction (on a vote of 8–7), a decision
quickly reversed by statute: Territorial Waters Jurisdiction Act 1878.
Further: Crawford (1980) 51 BY 1, 48–61.
8
(1927) PCIJ Ser A No 10, 19.
9
E.g. Brierly (1936) 58 Hague Recueil 1, 146–8, 183–4; Basdevant
(1936) 58 Hague Recueil 471, 594–7; Fitzmaurice (1957) 92
Hague Recueil 1, 56–7; Lauterpacht, 1 International Law (1970) 488–9;
Higgins, Problems and Process (1994) 76–7; Cameron, The Protective
Principle of International Criminal Jurisdiction (1994) 319; Ryngaert
(2008) 22–6. Further: Opinion of the Inter-American Juridical Committee,
23 August 1996, 35 ILM 1329.
10
Fisheries (UK v Norway), ICJ Reports 1951 p 116, 131–4.
11
ICJ Reports 1955 p 4, 20. Also chapter 23.
12
Arrest Warrant of 11April 2000(Democratic Republic of the Congo v
Belgium), ICJ Reports 2002 p 3, 78 (Judges Higgins, Kooijmans &
Buergenthal), 169 (Judge ad hoc van den Wyngaert).
13
14
Lotus (1927) PCIJ Ser A No 10, 19.
14
Harvard Research (1935) 29 AJIL Supp 439, 480, 484–7; The
Tennyson (1918) 45 JDI 739; Public Prosecutor v DS (1958) 26 ILR
209; State of Arizona v Willoughby, 862 P.2d 1319 (Az Sup Ct, 1995).
15
Board of Trade v Owen [1957] AC 602, 634 (Lord Tucker); R v
Cox [1968] 1 All ER 410, 413; DPP v Doot [1973] AC 807, esp 817 (Lord
Wilberforce); DPP v Stonehouse [1977] 2 All ER 909, 916 (Lord
Diplock); Liangsiripraset v United States [1991] 1 AC 225. Under US law,
conspiracy can be seen as either an inchoate or independent crime,
allowing the protective principle and effects doctrine to found jurisdiction
independently: Ford v United States, 273 US 593 (1927); Iannelli v
United States, 420 US 770 (1975); United States v Winter, 509 F.2d 975
(5th Cir, 1975); United States v Baker, 609 F.2d 134 (5th Cir,
1980); United States v Ricardo, 619 F.2d 1124 (5th Cir, 1980); United
States v Mann, 615 F.2d 669 (5th Cir, 1980); United States v DeWeese,
352 F.2d 1267 (5th Cir, 1980); United States v Wright Barker, 784 F.2d
161 (3rd Cir, 1986); United States v Mendez-Casarez, 624 F.3d 233 (5th
Cir, 2010). Further: 18 USC §371. Generally: Blackmore (2006)
17 CLF 71; Ryngaert (2009) 9 Int Crim LR 187, 194–7.
16
United States v Aluminium Company of America, 148 F.2d 416 (2nd
Cir, 1945). In US antitrust cases wide extension of the territorial principle
might be explained by, though it is not expressed in terms of, a principle
of protection. It can also be described in terms of the effects doctrine:
Ryngaert (2008) 76–7. At length: Ryngaert, Jurisdiction over Antitrust
Violations in International Law (2008).
17
Cf Naim Molvan v AG for Palestine [1948] AC 351.
18
The European approach is notable; as soon as one of the constituent
elements of an offence is committed in a state’s territory, the state will
ordinarily have jurisdiction: Ryngaert (2009) 9 Int Crim LR 187, 197–
202 (review of France, Germany, the Netherlands, and Belgium).
19
20
(1927) PCIJ Ser A No 10, 23.
Ibid, 92 (Judge Moore); Harvard Research (1935) 29 AJIL
Supp 519; Jennings (1957) 33 BY 146, 153; Sarkar (1962) 11 ICLQ 446,
456–61. See also United States v Baker, 136 F.Supp 546 (SDNY,
1955); Re Gutierrez (1957) 24 ILR 265; Weiss v InspectorGeneral (1958) 26 ILR 210; Public Prosecutor v Günther B and Manfred
E (1970) 71 ILR 247; Passport Seizure (1972) 73 ILR 372; Greek
National Military Service (1973) 73 ILR 606; UKMIL (1986) 57 BY 487,
561; Al-Skeini v Secretary of State for Defence [2008] 1 AC 153. Also
Ergec, La Compétence extraterritoriale à la lumiére du contentieux sur le
gazoduc Euro-Sibérien (1984) 53–68; Ryngaert (2008) 88–92.
21
E.g. Terrorism Act 2000 (UK), ss63B, 63C.
22
Public Prosecutor v Drechsler (1946) 13 ILR 73; Re Penati (1946) 13
ILR 74; In re Bittner (1949) 16 ILR 95; cf DPP v Joyce [1946] AC 347; Re
P (GE)(an infant) [1964] 3 All ER 977.
23
In re Mittermaier (1946) 13 ILR 69; In re SS Member Ahlbrecht (1947)
14 ILR 196, 200–1; Ram Narain v Central Bank of India (1951) 18 ILR
207.
24
Treason Act 1351, sII; further: R v Lynch [1903] 1 KB 444; R v
Casement [1917] 1 KB 98; Lew (1978) 27 ICLQ 168.
25
Offences Against the Person Act 1861, s9.
26
Ibid, s57.
27
Football Spectators Act 1989, s22.
28
Sexual Offences Act 2003, s72, Schedule 2.
29
Official Secrets Act 1989, s15.
30
Harvard Research (1935) 29 AJIL Supp 439, 519; Ryngaert (2008)
88–91.
31
E.g. UKMIL (2006) 77 BY 597, 756. See also Ryngaert (2008) 89.
Naturally, this will depend on the definition of ‘serious’: cf Misuse of Drugs
Act (Singapore) ss8A, 33, 33A, Schedules 2 and 4.
32
Ryngaert (2008) 89. The practice of limiting the use of nationality
jurisdiction to serious offences is largely common law in origin, with civil
law countries applying a more expansive approach: e.g. Bosnia/
Herzegovina Criminal Code, Art 12(2) (‘The criminal legislation of Bosnia
and Herzegovina shall be applied to a citizen of Bosnia and Herzegovina
who, outside the territory of Bosnia and Herzegovina, perpetrates a
criminal offence’).
33
33
Antarctic Treaty, 1 December 1959, 402 UNTS 71, Art VIII(1) and e.g.
Antarctic Act 1994 (UK), s21. The same situation subsists with respect to
criminal jurisdiction on the International Space Station, though the
governing instrument also provides for subsidiary territorial and passive
personality jurisdiction in certain cases: Agreement Concerning
Cooperation on the Civil International Space Station, 29 January 1998,
TAIS 12927, Art 22. Further: Sinha (2004) 30 J Space L 85. The position
is not replicated with respect to the earlier Treaty on Principles Governing
the Activities of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies, 27 January 1967, 610
UNTS 205: Art 8 provides that when a state party launches an object into
outer space, it retains jurisdiction over that object and over any personnel
—a species of flag state jurisdiction.
34
O’Keefe (2004) 2 JICJ 735, 742–3.
35
E.g. Swedish Penal Code, ch 2, s2. Further: Harvard Research (1935)
29 AJIL 439, 535; Ryngaert (2008) 88–9.
36
Jennings (1957) 33 BY 146, 154; Sarkar (1962) 11 ICLQ 446,
461; Harvard Research (1953) 29 AJIL Supp 439, 443, 445, 573, 579;
Mann (1964) 111 Hague Recueil 1, 40–1; Akehurst (1972–73) 46 BY 145,
162–6; Watson (1993) 28 Texas ILJ 1; Higgins (1994) 65–9; Ryngaert
(2008) 92–6. Also United States v Yunis (No 2), 681 F.Supp 896, 901–3
(DDC, 1990).
37
Moore, 2 Digest 228–42; FRUS (1887) 751–867.
38
(1927) PCIJ Ser A No 10, 15.
39
Lauterpacht has stated that in the Lotus the Court ‘declared the
exercise of such protective jurisdiction to be consistent with international
law’: (1947) 9 CLJ 330, 343. Cf Verzijl, 1 The Jurisprudence of the World
Court (1965) 78–80.
40
(1927) PCIJ Ser A No 10, 89–94 (Judge Moore, diss). Also Flatow v
Islamic Republic of Iran, 999 F.Supp 1, 15–16 (DDC, 1998). For comment
on the extension of US jurisdiction with respect to terrorism: Higgins
(1994) 66–7.
41
Donnedieu de Vabres, Les Principes modernes du droit penal
international (1928) 170. Also Ryngaert (2008) 92–3.
42
42
Brierly (1928) 44 LQR 154, 161; Ryngaert (2008) 93–4.
43
E.g. Arrest Warrant, ICJ Report 2002 p 3, 76–7 (Judges Higgins,
Kooijmans & Buergenthal): ‘Passive personality jurisdiction, for so long
regarded as controversial, is reflected not only in the legislation of various
countries…and today meets with relatively little opposition, at least so far
as a particular category of offences is concerned’. Also Higgins (1994)
66; Ryngaert (2004) 94.
44
E.g. Convention on Offences Committed on Board Aircraft, 14
September 1963, 704 UNTS 219, Art 4(b); Convention for the
Suppression of Unlawful Acts Against the Safety of Maritime Navigation,
10 March 1988, 1678 UNTS 221; Convention Against Torture, 10
December 1984, 1485 UNTS 85, Art 5(1)(c).
45
Bourquin (1927) 16 Hague Recueil 117, 121–89; Harvard Research
(1935) 29 AJIL Supp 439, 543; Sarkar (1962) 11 ILCQ 446, 462–
6; Garcia-Mora (1957–58) 19 U Pitt LR 567; van Hecke (1962) 106
Hague Recueil 253, 317–18; Ryngaert (2008) 96–100.
46
Nusselein v Belgian State (1950) 17 ILR 136; Public Prosecutor v
L (1951) 18 ILR 206; Re van den Plas (1955) 22 ILR 205; Rocha v United
States, 288 F.2d 545 (9th Cir, 1961); Italian South Tyrol Terrorism
Case(2) (1970) 71 ILR 242; Arrest Warrant, ICJ Reports 2002 p 3, 37
(President Guillaume), 92 (Judge Rezek).
47
Naim Molvan v AG for Palestine [1948] AC 531; Giles v
Tumminello (1969) 38 ILR 120.
48
[1946] AC 347 (on which see Lauterpacht, 3 International Law (1977),
221). Also Board of Trade v Owen [1957] AC 602, 634 (Lord Tucker).
Further: the US Anti-Smuggling Act of 1935 (19 USC §§1701–
11); Preuss (1944) 30 GST 184; Sarkar (1962) 11 ICLQ 446, 453–6.
49
50
(1962) 36 ILR 5, 18, 54–7 (Dist Ct), 304 (Sup Ct).
Lasok (1962) 11 ICLQ 355, 364. Notwithstanding this, the District
Court of Jerusalem felt able to say that the law under which Eichmann
was prosecuted ‘conforms to the best traditions of the law of nations’:
(1962) 36 ILR 5, 18, 25. Also the statement of the Supreme Court, ibid,
287.
51
51
E.g. the US asserts jurisdiction over foreigners on the high seas on
the basis of the protective principle, arguing that the illegal trade in
narcotics is sufficiently prejudicial to its national interest: United States v
Gonzalez, 776 F.2d 931 (11th Cir, 1985); United States v Davis, 905 F.2d
245 (1st Cir, 1990); Maritime Drug Law Enforcement Act 1986; Murphy
(2003) 97 AJIL 183.
52
Jacobellis v Ohio, 378 US 184, 197 (1964) (Justice Stewart).
53
O’Keefe (2004) 2 JICJ 735, 739. The doctrine focuses on the
deleterious effects of extra-territorial acts to the state. It is therefore
primarily manifested in the criminal and regulatory spheres. Although civil
manifestations are possible, it is presented here for the sake of
convenience.
54
E.g. in respect of inchoate conspiracies to murder or import illegal
narcotics, where these offences are almost certainly illegal in those
countries in which the plotting took place. In other areas, notably the
fields of antitrust/competition law, such illegality cannot be assumed, and
the validity of the doctrine remains uncertain: ibid, 739.
55
(1927) PCIJ Ser A No 10, 23.
56
ICJ Reports 2002 p 3, 77 (Judges Higgins, Kooijmans & Buergenthal).
57
E.g. Case T-102/96, Gencor Ltd v Commission [1999] ECR II-753.
Further: Agreement between the European Communities and the
Government of the United States on the Application of Positive Comity
Principles in the Enforcement of their Competition Laws, 4 June 1998
[1998] OJEU L 173/28.
58
United States v Aluminium Co of America, 149 F.2d 416, 443 (2nd Cir,
1945).
59
Generally: Raymond (1967) 61 AJIL 558; Metzger (1967)
61 AJIL 1015; Norton (1979) 28 ICLQ 575; Kelley (1991) 23 U Miami IA
LR 195. Further Basedow, ‘Antitrust or Competition Law, International’
(2009) MPEPIL.
60
Lowe & Staker, in Evans (ed), International Law (3rd edn, 2010) 322–
3.
61
62
Shipping Contracts and Commercial Documents Act 1964 (UK).
62
Lowe (1984) 27 GYIL 54; Kuyper, ibid, 72; Meessen, ibid, 97.
63
Cf the Note dated 12 August 1982 and comments, Lowe (1983) 197.
64
Note dated 18 October 1982, UKMIL (1982) 53 BY 337, 453; Lowe
(1983) 212.
65
On the German position: Gerber (1983) 77 AJIL 756; Steinberger, in
Olmstead (ed), Extra-territorial Application of Laws and Responses
Thereto (1984) 77.
66
ICI v EEC Commission (1972) 48 ILR 106, 121–3.
67
(1988) 96 ILR 174. However, the Court based its decision on ‘the
territoriality principle as universally recognized in public international law’:
(1988) 96 ILR 193, 196–7. Further: Waelbroeck, in Olmstead (ed), Extraterritorial application of laws and responses thereto (1984) 74; Akehurst
(1988) 59 BY 408, 415–19.
68
E.g. UKMIL (1992) 63 BY 615, 724–9; UKMIL (1993) 64 BY 579, 643–
5; UKMIL (1995) 66 BY 583, 669–71; UKMIL (1996) 67 BY 683, 763–5;
UKMIL (1998) 69 BY 433, 534; UKMIL (2001) 72 BY 551, 627, 631.
69
22 USC §6001.
70
Iran and Libya Sanctions Act, 110 Stat 1541.
71
Cuban Liberty and Democratic Solidarity (Libertad) Act, 22 USC
§6021.
72
Gidel, 2 Le Droit international public de la mer (1932) 39–252;
Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927)
144–208; Harvard Research (1929) 23 AJIL Supp 241, 307–28; Harvard
Research (1935) 29 AJIL Supp 508; McDougal & Burke, The Public
Order of the Oceans (1962) 161–73; Churchill & Lowe, The Law of the
Sea(3rd edn, 1999) 65–9; Molenaar, ‘Port State Jurisdiction’
(2009) MPEPIL; Rothwell & Stephens, The International Law of the
Sea (2010) 56–7. For analogous cases of concurrence: Beale (1922–23)
36 Harv LR 241, 247–51; Lauterpacht (1960) 9 ICLQ 208, 231–2.
73
Also Lauritzen v Larsen, 345 US 571, 584–6 (1953); Churchill & Lowe
(3rd edn, 1999) 66–7.
74
74
Further: UNCLOS, 10 December 1982, 1833 UNTS 3, Arts 91–4; UN
Convention on the Conditions of Registration of Ships, 7 February 1986,
26 ILM 1229; M/V Saiga (No 2) (1999) 120 ILR 143.
75
Molenaar, Coastal State Jurisdiction over Vessel Source
Pollution (1998) 187; Churchill & Lowe (3rd edn, 1999) 68; Rothwell &
Stephens (2010) 56.
76
United States v Flores, 289 US 137 (1933); Re Bianchi (1957) 24 ILR
173.
77
2 Gidel (1932) 204, 246; Churchill & Lowe (3rd edn, 1999) 65–6.
78
McNair, 2 Opinions 194.
79
Churchill & Lowe (3rd edn, 1999) 66–7.
80
Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating
to the Conservation and Management of Straddling Fish Stocks and
Highly Migratory Fish Stocks, 4 August 1995, 2167 UNTS 3.
81
2 November 2001, 41 ILM 40. Further: Rau (2006) 6 MPUNYB 387.
82
E.g. Shubber, Jurisdiction over Crimes on Board Aircraft (1973).
83
R v Martin [1956] 2 QB 272, 285–6 (Devlin J); R v Naylor [1962] 2 QB
527.
84
In R v Martin [1956] 2 QB 272 it was decided that s62 of the Civil
Aviation Act 1949 (UK) has procedural effect and confers jurisdiction only
if a substantive rule makes the act concerned criminal when committed
on board a British aircraft; that case involved the Dangerous Drugs
Regulations 1953 (UK). Generally: Cheng (1959) 12 CLP 177.
85
14 September 1963, 704 UNTS 219. Further: Mendelsohn (1967)
53 Va LR 509; and, for the UK, the Tokyo Convention Act 1967; comment
by Samuels (1967) 42 BY 271.
86
Convention for the Suppression of Unlawful Seizure of Aircraft, 16
December 1970, 860 UNTS 105; Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971,
974 UNTS 178; Convention on the Suppression of Unlawful Acts Relating
to International Civil Aviation, 10 September 2010, available
at www.icao.int/DCAS2010/restr/docs/beijing_convention_multi.pdf; the
Aviation Security Act 1982 (UK).
87
Harvard Research (1935) 29 AJIL Supp 439, 563; Jennings (1957)
33 BY 146, 156; Bishop (1965) 115 Hague Recueil 147, 323–4; Bowett
(1982) 53 BY 1, 11–14; Brown (2001) 35 NELR 383; Higgins (1994) 56–
65; The Princeton Principles on Universal Jurisdiction (2001);
Reydams, Universal Jurisdiction (2003); Ryngaert (2008) ch 5; and esp
O’Keefe (2004) 2 JICJ 735.
88
O’Keefe (2004) 2 JICJ 735, 745. Cf Reydams (2003) 5. Also la
Pradelle, in Ascensio, Decaux & Pellet (eds), Droit International
Pénal (2005) 905.
89
O’Keefe (2004) 2 JICJ 735, 745.
90
Brand (1949) 26 BY 414; Baxter (1951) 28 BY 382. Cf Röling (1960)
100 Hague Recueil 323, 357–62. Also Re Sharon and Yaron (2003) 127
ILR 110; Javor and Others (1996) 127 ILR 126; Munyeshyaka (1998) 127
ILR 134.
91
Higgins (1994) 58. See also Arrest Warrant, ICJ Reports 2002 p 3, 81
(Judges Higgins, Kooijmans & Buergenthal).
92
(1968) 36 ILR 18, 26.
93
This can be explained by the fact that no state could exercise
territorial jurisdiction: e.g Lotus (1927) PCIJ Ser A No 10, 51 (Judge
Finlay, diss), 70–1 (Judge Moore, diss), 95 (Judge Altamira, diss); Arrest
Warrant, ICJ Reports 2002 p 3, 37–8, 42 (President Guillaume), 55–6
(Judge Ranjeva), 78–9, 81 (Judges Higgins, Kooijmans & Buergenthal).
On piracy: UNCLOS, Art 105, and chapter 13.
94
E.g. Lotus (1927) PCIJ Ser A No 10, 95 (Judge Altamira, diss); Arrest
Warrant, ICJ Reports 2002 p 3, 61–2 (Judge Koroma).
95
96
Ryngaert (2008) 110–15.
Jorgic v Germany[1997] ECtHR 74614/01, §69. Institut de Droit
International, Seventeenth Commission, Universal Jurisdiction Over
Genocide, Crimes Against Humanity and War Crimes (2005) 2.
Generally: Kreß (2006) 4 JICJ 561; Reydams (2003) 1 JICJ 428;
cf Reydams (2003) 1 JICJ 679. This has become the position despite the
fact that the Genocide Convention, 9 December 1948, 78 UNTS 277, Art
VI reserves universal jurisdiction in case of genocide for an international
court: cf In re Koch (1966) 30 ILR 496; Jorgic v Germany [1997] ECtHR
74614/01 (alternate interpretation of Genocide Convention, Art VI, which
permits universal jurisdiction for states); Schabas (2003) 1 JICJ 39.
97
Higgins (1994) 61.
98
R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet
Ugarte (No 3) [2000] 1 AC 147, 275 (Lord Millett); Furundžija (2002) 121
ILR 213, 262; Cassese, International Criminal Law (2nd edn, 2008) 338.
99
ICC Doc RC/Res.6, 16 June 2010; ICC Statute, 17 July 1998, 2187
UNTS 3, Arts 8bis, 15bis, 15ter.
100
An attempt to persuade German authorities to prosecute for
aggression with respect to the US invasion of Iraq failed: Kreß (2004)
2 JICJ 245; Kreß (2004) 2 JICJ 347.
101
Ryngaert (2008) 113–15.
102
Generally: Winants (2003) 16 LJIL 491; O’Keefe (2004) 2 JICJ 735;
Goldmann, ‘Arrest Warrant Case (Democratic Republic of Congo v
Belgium)’ (2009) MPEPIL.
103
Cf also the dissenting opinion of Judge Oda: ICJ Reports 2002 p 3,
51.
104
President Guillaume took an extremely conservative stance on
universal jurisdiction holding that under customary international law it
only applied with respect to piracy and within the confines of certain sui
generis treaty regimes: ibid, 37–8.
105
Ibid, 94.
106
Ibid, 55–7 (Judge Ranjeva), 121–6 (Judge ad hoc Bula-Bula).
107
Reydams (2003) 55, 74, 88–9, 156, 177, 222, 224, 226–7; Cassese
(2nd edn, 2008) 338.
108
O’Keefe (2004) 2 JICJ 735, 750.
109
Ibid, 751.
110
110
Generally: Reydams (2003) ch 3; Ryngaert (2008) 100–27; Scharf,
‘Aut dedere aut iudicare’ (2008) MPEPIL.
111
The concept again comes from Grotius, who found the notion of a
fugitive arriving on the territory of a state and there remaining to enjoy the
fruits of his iniquity offensive: Grotius, De Iure Belli ac Pacis (1625, Tuck
2005) II.xxi.§4.1. The position was later reversed by Enlightenment
philosophers who sought to restrict the prescriptive jurisdiction of states
to territorial concerns alone: e.g, Beccaria, Traité des délits et des
peines (1764) §21. Further: Arrest Warrant, ICJ Reports 2002 p 3, 36–40
(President Guillaume).
112
In the modern era, the concept first appeared in the International
Convention for the Suppression of Counterfeiting Currency, 20 April
1929, 112 LNTS 371, Art 9.
113
114
16 December 1970, 860 UNTS 105, Art 4(1).
E.g Convention for the Suppression of Unlawful Acts Against the
Safety of Civilian Aviation, 23 September 1971, 974 UNTS 117, Art 5(1)
(c), (2) and (2bis); Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons, including Diplomatic
Agents, 14 December 1973, 1035 UNTS 167, Art 3(2); International
Convention Against the Taking of Hostages, 17 December 1979, 1316
UNTS 205, Art 5(2); Convention on the Physical Protection of Nuclear
Material, 3 March 1980, 1456 UNTS 124, Art 8(2); Convention Against
Torture, 10 December 1984, 1465 UNTS 85, Art 5(2); Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation,
20 March 1988, 1678 UNTS 221, Art 6(4); Protocol for the Suppression
of Unlawful Acts against the Safety of Fixed Platforms Located on the
Continental Shelf, 10 March 1988, 1678 UNTS 304, Art 3(2), Convention
against the Recruitment, Use, Financing and Training of Mercenaries, 4
December 1989, 2163 UNTS 96, 9(2); Convention on the Safety of
United Nations and Associated Personnel, 9 December 1994, 2051
UNTS 363, Art 10(4); International Convention for the Suppression of
Terrorist Bombings, 15 December 1997, 2149 UNTS 256, Art 6(4);
International Convention for the Suppression of the Financing of
Terrorism, 9 December 1999, A/RES/54/109, Art 7(4); Convention
against Transnational Organized Crime, 15 November 2000, 2225 UNTS
209, Art 15(4); International Convention for the Suppression of Acts of
Nuclear Terrorism, 13 April 2005, 2445 UNTS 89, Art 9(4); Convention for
the Protection of All Persons from Enforced Disappearance, 20
December 2006, A/RES/61/177, Art 9(2); Convention on the Suppression
of Unlawful Acts relating to International Civil Aviation, 10 September
2010, Art 8(3), available at www.icao.int/DCAS2010/.
115
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75
UNTS 31, Art 49; Geneva Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea, 12 August 1949, 75 UNTS 85, Art 50; Geneva Convention
Relative to the Treatment of Prisoners of War, 75 UNTS 135, Art 129;
Geneva Convention Relative to the Protection of Civilian Persons in Time
of War, 12 August 1949, 85 UNTS 287, Art 146.
116
Generally: Saul (2005) 52 NILJ 57; Saul, Defining Terrorism in
International Law (2006); cf Cassese (2nd edn, 2008) ch 8.
117
Higgins (1994) 64 (‘Although these treaties seek to provide wide
alternative bases of jurisdiction, they are not examples of universal
jurisdiction. Universal jurisdiction, properly called, allows any state to
assert jurisdiction over an offence’).
118
Ryngaert (2008) 105. Also Lowe & Staker, in Evans (3rd edn, 2010)
313, 318–35.
119
E.g. United States v Rezaq, 899 F.Supp 697 (DDC, 1995); United
States v Rezaq, 134 F.3d 1121 (DC Cir, 1998); United States v Wang
Kun Lue, 134 F.3d 79 (2nd Cir, 1997); United States v Lin, 101 F.3d 760
(DC Cir, 1996); United States v Ni Fa Yi, 951 F.Supp 42 (SDNY,
1997); United States v Chen De Yian, 905 F.Supp 160 (SDNY, 1995).
120
United States v Yunis (No 2), 681 F.Supp 896, 901 (DDC, 1988).
121
There are many specialized areas, e.g. those relating to conscription
and taxation. On the former: Parry (1954) 31 BY 437; 8 Whiteman 540–
72. On the latter: Mann (1964) 111 Hague Recueil 1, 109–19;
Martha, The Jurisdiction to Tax in International Law (1989).
122
Ryngaert (2008) 76–8. Also Ryngaert, Jurisdiction over Antitrust
Violations in International Law (2008).
123
123
On the relations of public and private international law: Mann (1964)
111 Hague Recueil 9, 10–22, 54–62; Akehurst (1972–73) 46 BY 145,
216–31, Mills, The Confluence of Public and Private International
Law (2009).
124
Beale (1922–23) 36 Harv LR 241. For a different view see Akehurst
(1972–73) 46 BY 145, 170–7; and see Derby & Co Ltd v Larsson [1976]
1 WLR 202; Crawford (1976–77) 48 BY 333, 352. Also Thai-Europe
Tapioca Service v Government of Pakistan [1975] 1 WLR 1485, 1491–2
(Lord Denning).
125
Russell& Co v Cayzer, Irvine Ltd [1916] 2 AC 298, 302.
126
E.g. Maharanee of Baroda v Wildenstein [1972] 2 QB 283.
127
E.g. Dunlop Ltd v Cudell& Co [1902] 1 KB 342; Cleveland Museum of
Art v Capricorn International SA [1990] 2 Lloyd’s Rep 166.
128
E.g. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460; Airbus
Industrie GIE v Patel [1999] 1 AC 119; Lubbe v Cape plc [2000] 1 WLR
1545. Where the defendant has a territorial connection with England
sufficient to allow the writ to be served directly, the court may decline
jurisdiction on the basis that England is forum non conveniens. Generally:
Fentiman, International Commercial Litigation (2010) chs 8–9, 12.
129
E.g. Ehrenzweig (1956) 65 Yale LJ 289. Relations between common
law and civil law countries on the service of process have been a source
of difficulty: e.g. Decision of 7 December 1994 concerning Service of
Punitive Damage Claims (1995) 34 ILM 975.
130
The unfortunate corollary of which is that the onus is then on the
defendant to disprove jurisdiction: Fentiman (2010) 230.
131
International Shoe Co v Washington, 326 US 310, 316 (1945).
Also World-Wide Volkswagen Corp v Woodson, 444 US 286, 297
(1980); Helicopteros Nacionales de Columbia v Hall, 466 US 408, 415–
16 (1984); Burger King v Rudzewicz, 471 US 462, 473 (1985); In the
Matter of an Application to Enforce Admin Subpoenas Deces Tecum of
the SEC v Knowles, 87 F.3d 413, 417 (10th Cir, 1996); Goodyear Dunlop
Tyres Operations SA v Brown, 131 SC 2846 (2011).
132
133
Ryngaert (2008) 12.
133
E.g. Boryk v de Havilland Aircraft Co, 341 F.2d 666 (2nd Cir, 1965);
cf also Lakah Group v Al Jazeera Satellite Channel [2002] EWHC 1297
(QB); aff’d [2003] EWCA Civ 1781.
134
[2001] OJEU L 12/1, an elaboration on the Convention on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters,
Brussels, 27 September 1968, 1262 UNTS 153 As an EU member, the
UK is bound by the terms of the Brussels 1 Regulation. To the extent that
the Regulation does not apply, however, the common law rules of
jurisdiction will have residual effect: Brussels 1 Regulation, Art 4. Also of
note is EC Regulation 593/2008 on the law applicable to contractual
relations: [2008] OJEU L 177/6 (Rome 1 Regulation).
135
The Brussels 1 Regulation permits certain exceptions to this principle
based on questions of subject-matter and the relationship between the
parties: e.g. Arts 5(1) (matters relating to a contract), 5(3) (matters
relating to a tort or delict), 5(5) (matters relating to a dispute arising from
the activities of a branch, agent or other establishment); 22 (exclusive
jurisdiction), 23 (jurisdiction agreements), and 27 and 28 (lis pendens and
related actions).
136
Further: Fentiman (2010) 384–96.
137
Cf Brussels 1 Regulation, Art 28.
138
E.g. because the court second seised is the beneficiary of an
exclusive jurisdiction agreement between the parties (Art 23) or the
subject-matter of the dispute is something within the exclusive jurisdiction
of the court second seised (Art 22).
139
Case C-281/02, Owusu v Jackson [2005] ECR I-1383 (ECJ). Also
Case C-159/02, Turner v Grovit [2005] ECR I-3565 (ECJ); Case C116/02, Erich Gasser GmbH v MISAT srl [2003] ECR I-14693 (ECJ);
Case C-185/07, Allianz SpA v West Tankers Inc [2009] ECR I-663.
140
Ryngaert (2008) ch 1; Mills (2009).
141
Mills (2009) 298 and generally: chs 1–3.
142
E.g. Timberland Lumber Co v Bank of America, 549 F.2d 597 (9th
Cir, 1976).
143
143
Dodge (1996) 19 Hastings ICLR 221; Steinhardt & D’Amato
(eds), The Alien Tort Claims Act (1999); Paust (2004) 16 Fla
JIL 249; Ryngaert (2007) 38 NYIL 3; Ryngaert (2008) 126–7; SeibertFohr, ‘United States Alien Tort Statute’ (2008) MPEPIL.
144
Reydams (2008) 126–7.
145
28 USC §1350. After the ‘rediscovery’ of the Alien Tort Claims Act,
the Torture Victims Protection Act of 1991 was passed: it provides a
cause of action for any victim of torture or extrajudicial killing wherever
committed: 106 Stat 73.
146
These are the offences against the law of nations described by
Blackstone as addressed by the criminal law of England: Sosa v AlvarezMachain, 542 US 692, 725 (2004). The origins of the original statute are
obscure: Paust (2004) 16 Fla JIL 249; Seibert-Fohr, ‘United States Alien
Tort Statute’ (2008) MPEPIL.
147
630 F.2d 876 (2nd Cir, 1980).
148
There is no nationality requirement imposed on the defendant by the
ATS; accordingly, US companies are named as defendants in most ATS
cases, converting the statute into a corporate social responsibility tool:
e.g. Doe v Unocal, 249 F.3d 915 (9th Cir, 2001). That said, a
determination by the Supreme Court as to whether corporations can be
held liable under the ATS has not yet been made: cf Presbyterian Church
of Sudan v Talisman Energy Inc, 582 F.3d 244 (2nd Cir, 2009); Kiobel v
Royal Dutch Petroleum, 621 F.3d 111 (9th Cir, 2010); and Crook (2010)
104 AJIL 119. The Supreme Court has ordered a rehearing of
the Kiobel appeal on grounds related to the scope of jurisdiction under
the ATS.
149
Ryngaert (2008) 126.
150
542 US 692, 749 (2004).
151
Ryngaert (2003) 38 NYIL 3, 35–8.
152
E.g. Arrest Warrant, ICJ Reports 2002 p 3, 77 (Judges Higgins,
Kooijmans & Buergenthal) (‘[w]hile this unilateral exercise of the function
of guardian of international values has been much commented on, it has
not attracted the approbation of States generally’). Cf Ramsay (2009)
50 Harv ILJ 271.
153
Ryngaert (2008) 126.
154
The Brussels 1 Regulation and the Rome I Regulation are the
characteristic examples of this, but cf also the results of the Organization
of American States Specialized Conferences on Private International
Law: www.oas.org/dil/privateintlaw_interamericanconferences.htm.
155
Cf the list of conventions at www.hcch.net/index_en.php.
156
E.g. Janković, Decision on Art 11bisreferral (ICTY Appeals Chamber,
Case No IT-96–23/2-AR11bis.2, 15 November 2005), §34 (‘In this
context, the Appeals Chamber notes that attempts among States to
establish a hierarchy of criteria for determining the most appropriate
jurisdiction for a criminal case, where there are concurrent jurisdictions
on a horizontal level (i.e. among States), have failed thus far’). Availabl e
at www.icty.org/x/cases/stankovic/acdec/en/051115.htm.
157
E.g. Eichmann (1962) 36 ILR 277, 302; Arrest Warrant, ICJ Reports
2002 p 3, 80 (Judges Higgins, Kooijmans & Buergenthal) (arguing that
universal jurisdiction can only be exercised once the territorial state has
declined to take action).
158
Further: Ryngaert (2008) ch 5.
159
Mann (1964) 111 Hague Recueil 9, 43–51, 82–126; Sarkar (1962)
11 ICLQ 446, 466–70; Fawcett (1962) 38 BY 181, 188–90; Steinberger,
in Olmstead (1984) 77, 91–3. Cf Fitzmaurice (1957) 92 Hague Recueil 1,
215–17.
160
Ryngaert (2008) ch 2; Kamminga, ‘Extraterritoriality’ (2008) MPEPIL.
161
(1927) PCIJ Ser A No 10, 19.
162
ICJ Reports 2002 p 3, 78 (Judges Higgins, Kooijmans &
Buergenthal), 169 (Judge ad hoc van den Wyngaert). Further: Barcelona
Traction, Light and Power Co Ltd (Belgium v Spain), Second Phase, ICJ
Reports 1970 p 3, 105 (Judge Fitzmaurice).
163
164
Ryngaert (2008) 22–6; cf Higgins (1994) 162–3.
164
E.g. Mann (1964) 111 Hague Recueil 1, Higgins (1994) 77; Ryngaert
(2008) 21–6; Arrest Warrant, ICJ Reports 2002 p 3, 140–1 (Judge ad hoc
van den Wyngaert).
165
Cf Ryngaert (2008) 26–41.
166
O’Keefe (2004) 2 JICJ 735, 741.
167
Ryngaert (2008) 24–5.
168
E.g. Protection of Trading Interests Act 1980 (UK) (which has
however been little used). Also EC Regulation 2271/96, enacted in
response to the Helms-Burton and D’Amato-Kennedy Acts. Further: the
1982 comments of the European Community regarding the so-called
‘pipeline dispute’: Lowe (1984) 33 ICLQ 515.
169
Mann (1964) 111 Hague Recueil 9, 126–58; Mann (1964)
13 ICLQ 1460; Jennings (1957) 33 BY 146; 6 Whiteman 118–83; Verzijl
(1961) 8 NILR 3; van Hecke (1962) 106 Hague Recueil 253, 257–
356; Akehurst (1972–73) 46 BY 145, 179–212; Rosenthal &
Knighton, National Laws and International Commerce (1982); Meessen
(ed), Extra-territorial Jurisdiction in Theory and Practice (1996).
170
(1927) PCIJ Ser A No 10, 18.
171
E.g. Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v Uganda), ICJ Reports 2005 p 168, 196–9.
172
Lotus (1927) PCIJ Ser A No 10, 18; Service of Summons (1961) 38
ILR 133; 2 Répertoire suisse de droit international public, 986–1017.
173
E.g. Agreement between the Parties to the North Atlantic Treaty
regarding the Status of their Forces, 19 June 1951, 199 UNTS 67, Art VII;
Agreement between the Democratic Republic of East Timor and the
United Nations concerning the Status of the United Nations Mission of
Support in East Timor, 20 May 2002, 2185 UNTS 368, Arts 43–4. Further:
chapter 22.
174
175
United States v Aluminium Co of America, 148 F.2d 416 (1945).
United States v Watchmakers of Switzerland Information Center
Inc, 133 F.Supp 40 (SDNY, 1955); 134 F.Supp 710 (SDNY, 1955).
176
176
Intention was not a prominent requirement in United States v ICI, 100
F.Supp 504 (SDNY, 1951); 105 F.Supp 215 (SDNY, 1952), and in many
circumstances it can be inferred.
177
Timberlane Lumber Company v Bank of America, 549 F.2d 597 (9th
Cir, 1976); Mannington Mills Inc v Congoleum Corporation, 595 F.2d
1287 (3rd Cir, 1979). The ‘balancing’ approach was criticized in Laker
Airways Ltd v Sabena, 731 F.2d 909 (DC Cir, 1984). Also Meessen
(1984) 78 AJIL 783. Hartford Fire Insurance v California, 509 US 764
(1993) ignored almost all the balancing factors and held that US courts
should exercise jurisdiction where there is a substantial effect within the
US and there is no conflict, i.e. no foreign law requires that a party act or
not act in a certain manner contrary to US laws.
178
6 Whiteman 133, 159, 164.
179
Barcelona Traction, Second Phase, ICJ Reports 1970 p 3, 103–6
(Judge Fitzmaurice); ICJ Pleadings, Barcelona Traction, Belgian
Memorial, 114; ICJ Pleadings, 1 Barcelona Traction (New Application:
1962), Belgian Memorial, 165, 167–8.
180
The Attorney-General, Sir John Hobson, 15 July 1964; British
Practice (1964) 146, 153.
181
(1957) 33 BY 146, 151. Also British Nylon Spinners Ltd v ICI
Ltd [1952] 2 All ER 780; [1954] 3 All ER 88; Kahn-Freund (1955)
18 MLR 65.
182
Carron Iron Co v Maclaren (1855) 5 HLC 416, 442 (Lord
Cranworth); The Tropaioforos (1962) 1 Lloyd’s List LR 410; Mann (1964)
111 Hague Recueil 1, 149–50.
183
Generally: McClean, International Co-operation in Civil and Criminal
Matters (2002).
184
E.g. police officials of various nationalities were permitted to enter
Indonesia in the wake of the Bali bombings (2002), UK police were
permitted to operate in Germany during the soccer World Cup in order to
regulate football hooliganism (2006), and French forces were permitted to
enter Somali territory in order to capture the pirates responsible for the
seizure of the French yacht Le Ponant (2008).
185
185
Convention implementing the Schengen Agreement of 14 June 1985
between the Governments of the States of the Benelux Economic Union,
the Federal Republic of Germany and the French Republic on the
gradual abolition of checks at their common borders [2000] OJEU L
239/19.
186
[2001] OJEU C 197/1. Also: Convention on the Establishment of a
European Police Office [1995] OJEU C 316/2. Further: McClean (2002)
167–8, 224–37.
187
The UN has concluded a series of model and actual treaties
designed to secure greater co-operation in criminal matters: UN Model
Treaty on Mutual Assistance in Criminal Matters, 14 December 1990, A/
RES/45/117, amended by A/RES/53/112, 20 January 1999; Model Treaty
on the Transfer of Proceedings in Criminal Matters, 14 December 1990,
A/RES/45/118; UN Convention Against Transnational Organized Crime,
15 November 2000, A/RES/55/25 (Annex I). Further: McClean (2002)
213–20; Certain Questions of Mutual Assistance in Criminal Matters
(Djibouti v France), ICJ Reports 2008 p 117.
188
Agreement between the Government of the United Kingdom of Great
Britain and Northern Ireland and the Government of the Kingdom of the
Netherlands concerning a Scottish trial in the Netherlands, 18 September
1998, 2062 UNTS 81. This approach was approved in SC Res 1192
(1998). Further: Scharf (1999–2000) 6 ILSA JICL 355; Elegab (2000)
34 Int Lawyer 289; Aust (2000) 49 ICLQ 278; Plachta (2001)
12 EJIL 125. Also: Agreement between the Government of the United
Kingdom of Great Britain and Northern Ireland and the Government of
New Zealand concerning trials under Pitcairn law in New Zealand and
related matters, 11 October 2002, 2219 UNTS 57; Pitcairn Trials Act
2002 (NZ); R v Seven Named Accused (2004) 127 ILR 232; Christian &
Ors v R [2007] 2 WLR 120.
189
E.g. Wisconsin v Pelican Insurance Co, 127 US 265
(1887); Huntington v Attrill [1893] AC 150; United States v Inkley [1989]
QB 255 (CA).
190
191
28 May 1970, ETS No 70. Further: McClean (2002), 367–78.
Generally: Shearer, Extradition in International
Law (1971); Stanbrook & Stanbrook, Extradition Law and Practice (2nd
edn, 2000); Sambei & Jones, Extradition Law Handbook (2005); Nicholls
& Montgomery, The Law of Extradition and Mutual Assistance (2nd edn,
2007); Stein, ‘Extradition’ (2006) MPEPIL. On reciprocity as a basis for
extradition: Rezek (1981) 52 BY 171.
192
E.g. Extradition Treaty between the Government of the United
Kingdom of Great Britain and Northern Ireland and the Government of
the United States of America, 31 March 2003, Cm 5821.
193
13 December 1957, 359 UNTS 273. Also: Additional Protocol to the
European Convention on Extradition, 15 October 1975, CETS No 86;
Second Additional Protocol to the European Convention on Extradition,
17 March 1978, CETS No 98.
194
Cf EC Framework Decision of 13 June 2002 on the European arrest
warrant and surrender procedures between Member States
[2002] OJEU L 190/1; and see Assange v Swedish Prosecution
Authority [2012] UKSC 22. A similar though voluntary scheme persists
between Commonwealth nations: London Scheme for Extradition within
the Commonwealth (incorporated agreed amendments at Kingstown,
November 2002), in Commonwealth Secretariat, 2002Meeting of
Commonwealth Law Ministers and Senior Officials (2003) Annex B.
195
14 December 1990, A/RES/45/116. The Model Treaty has been
supplemented by a UN Model Law on Extradition, issued by the UN
Office on Drugs and Crime: 10 May 2004, E/EN.15/2004/CRP.10.
196
E.g. UNMTE, Art 2. Older treaties phrased this requirement in terms
of an exhaustive list of offences for which extradition could be requested:
ECE, Art 2, but cf Art 2(4). The EAW does away with this entirely with
respect to certain serious offences, including those deemed to be crimes
under the ICC Statute: EAW, Art 2(2).
197
E.g. UNMTE, Art 3(a), ECE, Art 3. Also the European Convention on
Extradition, 13 December 1957, 359 UNTS 273, Art 3, supplemented by
Additional Protocol, 15 October 1975, 1161 UNTS 450, Art 1.
198
199
E.g. UNMTE, Art 14, ECE, Art 14.
E.g. UNMTE, Art 3(d), ECE, Arts 8–9. EAW, Art 4(5), extends the
principle to situations where third states have given judgment against the
accused, subject to the treaty in question.
200
200
E.g. UNMTE, Art 3(f). Additionally, the European Court of Human
Rights held that all parties to the ECHR could not knowingly extradite an
individual where that individual would be in danger of torture: Soering v
United Kingdom (1989) 98 ILR 270. Cf Netherlands v Short (1990) 29
ILM 1375; Ng v Canada (1993) 98 ILR 497; Aylor (1993) 100 ILR
664; US v Burns and Rafay (2001) 124 ILR 298; Mamatkulov and
Askarov v Turkey (2005) 134 ILR 230.
201
E.g. UNMTE, Art 3(d), ECE, Art 11.
202
Cf notoriously, Eichmann (1962) 36 ILR 5. There, the accused was
abducted from Argentina, drugged, and dressed as a flight attendant for
rendition to Israel. Further: Fawcett (1962) 38 BY 181.
203
Including human rights standards: Öcalan v Turkey [2005] ECtHR
46221/99 (irregular rendition not automatically contrary to ECHR Art
5(1)).
204
E.g. Opinion of the Inter-American Jurisdiction Committee on the
International Legality of SCOTUS Case 91–712 (1993)
4 CLF 119; Stocké v Germany (1991) 95 ILR 327. Further: Parry (2005)
6 Melb JIL 516; Sadat (2005) 37 Case WRJIL 309; Weissbrodt &
Bergquist (2006) 19 Harv HRJ 123; Sands, in Mélanges Salmon (2007)
1074; Satterthwaite (2007) 75 G Wash LR 1333; Winkler (2008)
30 Loyola LA ICLR 33; Messineo (2009) 7 JICJ 1023; Jensen & Jenks
(2010) 1 Harv NSJ 171. Cf also the reports of the Council of Europe on
rendition: EC Docs 10957, 12 June 2006, 11302 rev, 11 June 2007.
205
This is so in the US: United States v Alvarez-Machain, 504 US 655
(1992). But cf R v Horseferry Road Magistrates’ Court, ex parte
Bennett [1994] 1 AC 42; S v Ebrahim (1991) 95 ILR 417. Traditionally
European jurisdictions would ordinarily accept jurisdiction in exorbitant
circumstances, but this has changed with the ECtHR: Re Argoud (1964)
45 ILR 90; cf Stockë v Germany (1991) 95 ILR 350. Further: El-Masri v
Macedonia, al Nasheri v Poland & Abu Zubaydaf v Lithuania, pending
before the ECtHR.
206
Generally: Brussels 1 Regulation, Ch III; Kennett, The Enforcement
of Judgments in Europe (2000); Fentiman (2010) ch 18.
207
208
Brussels 1 Regulation, Arts 34, 35.
208
Mareva Compania Naviera SA v International Bulkcarriers SA [1975]
2 Lloyd’s Rep 509; and cf generally: Fentiman (2010) 642–90. Also:
Senior Courts Act 1981 (UK) s37(1) and (3); Civil Jurisdiction and
Judgments Act 1982 (UK) s25.
209
Ashtiani v Kashi [1987] QB 888.
210
Babanaft International Co v Bassatne [1990] Ch 13, 37–9 (Kerr LJ),
41–2 (Nicholls LJ).
211
E.g. Babanaft International Co v Bassatne [1990] Ch 13; Derby & Co
Ltd v Weldon [1990] Ch 48 (CA).
212
Where compliance with the freezing injunction would prevent the
third party complying with what it reasonably believes to be its obligations
under the law of the jurisdiction in which the assets are located, it need
not comply with the order: Babanaft International Co v Bassatne [1990]
Ch 13; Baltic Shipping v Translink [1995] 1 Lloyd’s Rep 673; Bank of
China v NMB LLC [2002] 1 WLR 844.
213
E.g. Credit Suisse Fides Trust SA v Coughi [1998] QB 818; Republic
of Haiti v Duvalier [1990] 1 QB 202; Refco v Eastern Trading Co [1999] 1
Lloyd’s Rep 159 (CA); Ryan v Friction Dynamics [2001] CP Rep
75; Motorola Credit Corporation v Uzan [2004] 1 WLR 113.
214
Castanho v Brown & Root [1981] AC 557, 573; Airbus Industrie GIE v
Patel [1999] 1 AC 119, 133; Amchem Products Inc v British Columbia
Workers Compensation Board (1993) 102 DLR (4th) 96, 119; Turner v
Grovit [2002] 1 WLR 107. Generally: Fentiman (2010) ch 15; Senior
Courts Act 1981 (UK) s27.
215
Masri v Consolidated Contractors International (UK) Ltd (No 3) [2009]
QB 503, 533. This also includes cases where the foreign claimant is
prevented from re-litigating previous proceedings: e.g. Royal Bank of
Scotland plc v Hicks & Gillette [2010] EWHC 2579 (Ch).
216
E.g. Midland Bank plc v Laker Airways Ltd [1986] QB 689; cf Siskina
(Owners of cargo lately laden on board) v Distos Compania Naviera
SA [1979] AC 210.
217
Notably where the parties have concluded an exclusive jurisdiction
agreement in favour of the injuncting court: e.g. Donohue v Armco
Ltd [2002] 1 Lloyd’s Rep 425.
218
As was the case in Société Nationale Industrielle Aérospatiale v Lee
Kui Jak [1987] AC 871 (PC).
219
Generally: Maier (1982) 76 AJIL 280; Paul (1991) 32 Harv JIL 1;
Collins, in Fawcett (ed), Reform and Development of Private International
Law (2002) 89.
220
[1990] 3 SCR 1077, 1096.
221
159 US 113, 164 (1895).
222
E.g. in relation to anti-suit injunctions, Turner v Grovit [2002] 1 WLR
107, §28 (Lord Hobhouse). Further: Hartley (1987) 35 AJCL 487; Peel
(1998) 114 LQR 543; Fentiman (1998) 57 CLJ 467; Fentiman (2010)
579–85. In relation to freezing injunctions: Credit Suisse Fides Trust SA v
Cuoghi [1998] QB 818; Refco v Eastern Trading Co [1999] 1 Lloyd’s Rep
159.
223
E.g. Case C-150/02, Turner v Grovit [2005] ECR I-3565; Case C116/02, Erich Gasser GmbH v MISAT srl [2003] ECR I-14693 (ECJ);
Case C-185/08, Allianz SpA v West Tankers Inc [2009] ECR I-663.
224
The various principles of criminal jurisdiction overlap and could be
synthesized in this way. Further: Mann (1964) 111 Hague Recueil 1, 44–
51, 126; Survey of International Law, 23 April 1971, A/CN.4/245, §§80–
90; Barcelona Traction, Second Phase, ICJ Reports 1970 p 3, 248–50,
262–3 (Judge Padilla Nervo). Cf ibid, 103–6 (Judge Fitzmaurice).
225
E.g. Buck v Attorney-General [1965] Ch 745, 770–2 (Diplock
LJ); Lauritzen v Larsen, 345 US 571, 584–6 (1953); Rio Tinto Zinc
Corporation v Westinghouse [1978] AC 547, 607ff (Lord Wilberforce),
618ff (Lord Dilhorne). For the view of the Federal Cartel Office, German
Federal Republic, and the Constitutional Court: Gelber (1983)
77 AJIL 756, 776–7. Further: UKMIL (1978) 49 BY 329, 388–90; (1984)
55 BY 405, 540; (1985) 56 BY 363, 385–6. Cf Aérospatiale v District
Court, 482 US 522, 554–61 (1987) (Justice Blackmun, diss).
(p. 487) 22 Privileges and Immunities of Foreign
States
1. Evolution of the International Law of
Immunity1
(A) The Law in Context
State immunity is a rule of international law that facilitates the
performance of public functions by the state and its representatives by
preventing them from being sued or prosecuted in foreign courts.
Essentially, it precludes the courts of the forum state from exercising
adjudicative and enforcement jurisdiction in certain classes of case in
which a foreign state is a party. It is a procedural bar (not a substantive
defence) based on the status and functions of the state or official in
question.2 Previously described as a privilege conferred at the behest of
the executive,3 the grant of immunity is now understood as an obligation
under customary international law.4But although the
References
(p. 488) existence of this obligation is supported by ample authority, no
general statement of principle appeared at the international level until
2004: the law developed primarily through domestic case-law and limited
treaty practice, supplemented more recently by comprehensive
legislation in certain states. Immunity exists as a rule of international law,
but its application depends substantially on the law and procedural rules
of the forum. Increasingly, however, these issues are being elevated to
an international level, including through international litigation.5 This
development may tend to the consolidation of the law of immunity at
more or less its present phase of development.
(B) Rationales for State Immunity
Derived from the immunity historically attaching to the person of a visiting
sovereign, reflected in the Latin maxim par in parem non habet
imperium (an equal has no authority over an equal), state immunity
operates on twin bases. First, as an immunity ratione materiae, it is a
direct inference from the equality and independence of states.6 If organs
of the forum state could decide on core questions pertaining to the
functioning of a respondent state without its consent, the respondent
state’s sovereignty would be to that extent impugned. But this rationale
goes only so far; it does not cover matters remote from sovereign
authority, notably transactions within the host state, especially those of a
commercial or private law character. This provoked the development of
the so-called restrictive theory of immunity, which holds that immunity is
only required with respect to transactions involving the exercise of
governmental authority (acta iure imperii) as distinct from commercial or
other transactions which are not unique to the state (acta iure gestionis).
But the distinction raises difficulties of application and definition having
regard to the range of functions in which states engage.7
The second rationale for immunity (immunity ratione personae) operates
on the personal or functional level: foreign state officials should not be
impeded in the performance of their functions by a host state’s exercise
of adjudicative or enforcement jurisdiction over them. (Immunity does not
bar prescriptive jurisdiction, however; foreign officials are not exempt
from compliance with the laws of the host state.) This rationale for
immunity is pragmatic in nature, analogous to immunities granted to
diplomats. Immunity ratione personae covers all acts by the agent during
the period of office, whether performed in a private or official capacity,
given that the rationale
References
(p. 489) is to prevent interference with the performance of the official’s
role (and by extension with the sovereignty of the sending state).
Historically, immunity ratione personae was exemplified in the head of
state, who was seen as personifying the state itself.8 However, the law
has developed to recognize personal immunities for other high-ranking
state officials, including heads of government, foreign ministers, and
others.9There are no settled criteria for determining which types of official
enjoy personal immunity,10 but it is clear that the immunity belongs to the
state and not the individu-al.11 Once the period of office ends,
immunity ratione personae will expire; however, immunity ratione
materiae continues if the acts concerned are such that state immunity
attaches. In all cases the immunity can be waived by the state.
(C) Current State of the Law
In 1978 the ILC took on the task of reconciling the forum state’s territorial
jurisdiction with the foreign state’s sovereign authority,12 culminating in
Draft Articles of 1991.13 The Sixth Committee, however, had difficulty
adopting a consensus text. Upon resuming consideration of the topic in
1999, the General Assembly sought the ILC’s views on five outstanding
issues.14 The formation of an Ad Hoc Committee in 200015 finally
provided the impetus for agreeing a text. Following the Committee’s final
report,16 the General Assembly adopted the UN Convention on
Jurisdictional Immunities of States and Their Property on 2 December
2004.17
The Convention closely follows the ILC Draft Articles.18 Like the Draft
Articles, it conclusively adopts the restrictive theory of immunity. Like the
1972 European Convention on State Immunity19 and domestic
legislation, it does so by asserting a general rule that states and their
property benefit from immunity from adjudicative jurisdiction,20 and then
enumerating proceedings in which state immunity cannot be invoked21
References
(p. 490) or is considered to have been waived.22 The Convention treats
immunity from adjudicative jurisdiction and immunity from execution as
distinct, in accordance with general state practice. It is not applicable to
criminal proceedings23 nor to the immunities of a head of state ratione
personae.24
Although not yet in force, the UN Convention has been understood by
several courts to reflect an international consensus on state immunity.25 It
was cited by the Supreme Court of Japan to support its adoption of the
restrictive theory of immunity,26 and it has been signed, though not yet
ratified, by several states historically opposed to restrictive immunity,
such as China and Russia.27
Independently of the UN Convention, the restrictive theory of immunity is
now very widely, although not unanimously, accepted.28 But at a certain
point, the respondent state’s adherence to ‘absolute’ immunity is not the
issue: the question is whether a forum state is free to adopt a regime of
restrictive immunity, despite the dissenting views of a few states. Of that
there seems no doubt. Though adoption of the restrictive theory does not
avoid the problem of determining its precise boundaries, a broad
consensus exists as to the type of exceptions. These are reflected in the
legislation, the European Convention, and the UN Convention.29
The position in the UK evidences the approach described. Despite its
earlier adherence to absolute immunity, English courts applied the
restrictive theory of immunity at common law in the 1970s30 and
cemented the distinction between acts iure imperii and acts iure
gestionis, notably in I Congreso del Partido.31 The State Immunity
References
(p. 491) Act 1978,32 enacted to ‘bring [the UK’s] law on the immunity of
foreign States more into line with current international practice’ and to
implement the European Convention, interrupted this process.33 It is
broadly consistent with the UN Convention, which the UK signed on 30
September 2005.
The Act does not apply to criminal matters, nor does it affect diplomatic
and consular immunities,34 but it extends state immunity to heads of state
and separate entities.35 In certain respects (notably visiting forces) it
contemplates the parallel operation of the common law.36 The Act also
deals with immunity from execution, allowing execution against property
used for ‘commercial purposes’, though this exception has a narrow
scope.37 It provides for waiver in the same manner as the common law,
with separate waiver required for adjudication and enforcement.38
State immunity is treated as a public claim in open court.39 There is a
presumption that a state possesses immunity, with the plaintiff bearing
40
the burden of proof to the contrary.40 In the absence of the respondent
state, the court has a duty to determine immunity proprio motu.41
2. The Modalities of Granting Immunity
(A) Definitional Issues
(i) The sovereign act
Though a US court made an early attempt to deal with the issue by
delineating particular categories of exclusively sovereign activity,42 the
domestic legislation has primarily
References
(p. 492) regulated the scope of state immunity through a catalogue of
detailed exceptions. This approach does not eliminate the distinction
between acts iure imperii and acts iure gestionis, although it reduces its
operational significance. In the State Immunity Act 1978, several sections
demand factual inquiries into acts done ‘in the exercise of sovereign
authority’ and for ‘commercial purposes’;43 others simply call for literal
interpretation (e.g. sections 4 (contracts of employment), 5 (local
personal injuries and damage to property)).
(ii) Constituent units and political subdivisions
State practice has diverged on whether immunity extends to political
subdivisions, for example, the component units of federal states. One
school of thought considers the ability of a state to act iure imperii on its
own behalf to be decisive.44 The point is that political subdivisions are
generally unable to satisfy this requirement. Another view (held by most
federal states themselves) is that constituent units exercise governmental
authority, even if subordinated to the federal unit, and that immunity is not
lost because such authority is exercised locally. The divergence in state
practice is reflected in the texts. Under the European Convention,
immunity is not accorded to ‘constituent states of a federal state’, unless
45
a contracting state issues a declaration to the opposite effect.45No
reference is made to political subdivisions. In the State Immunity Act
1978, ‘constituent territories of a federal state’ are considered to be
‘separate entities’, only enjoying immunity if the requirements of section
14(2) are satisfied (unless an Order in Council is made according
immunity to a specific territory).46 The UN Convention takes a different
approach, equating constituent units with political subdivisions and
extending immunity to those entities ‘which are entitled to perform acts in
the exercise of sovereign authority, and are acting in that capacity’.47 By
applying the criterion of sovereign authority to both kinds of entity, it is
perhaps more reflective of state practice.
(iii) Separate entities
There are also diverse approaches to the question of separate entities
like state corporations. In the UK, the legislation enacts a presumption
against immunity for ‘separate
References
(p. 493) entities’, only according immunity where two further criteria are
satisfied. First, the entity must be separate from the state, that is, ‘distinct
from the executive organs of the government of the State and capable of
suing or being sued’: these are hardly words of limitation.48 Secondly, the
act in question must have been carried out ‘in the exercise of sovereign
authority’.49 The focus here is on whether ‘the act in question is of its own
character a governmental act, as opposed to an act which any private
citizen can perform’.50
An entirely different approach is taken by the US Act. Any ‘agency or
instrumentality of a foreign state’ enjoys a presumption of immunity51 and
its terms encompass, for example, state-owned corporations.52 Whilst the
US courts have also adopted a multifaceted test to determine an entity’s
status,53 the analysis of function that occupies the English courts is not
called for by the inclusive definition in USC §1603. On the other hand
§1603 requires an entity to have some connection to the state, unlike in
the UK, where a wholly private corporation could (in theory) be accorded
immunity.
The UN Convention attempts to reconcile these competing positions by
including both status and functions. It establishes a presumption that
‘agencies and instrumentalities of the state or other entities’ will have
immunity ‘to the extent that they are entitled to perform and are actually
performing acts in the exercise of the sovereign authority of the
state’.54 By including separate entities within the definition of the state, it
adheres to the US formulation; by requiring that they exercise sovereign
authority, it reflects the UK approach.
(iv) Individuals
In addition to organs and entities of the state, it is important to specify
exactly which individuals are entitled to immunity whether ratione
personae or ratione materiae. Despite some recent contrary US practice,
it seems to be generally settled that state officials acting in their official
capacity enjoy the same immunity as the state they represent.55 This
position is reflected in UK practice: the common law long considered
References
(p. 494) state agents to share the immunity of the state and sought
(through the concept of indirect impleading) to ensure that state immunity
was not circumvented by suing an individual defendant rather than the
Crown or a government department.56 No distinction is made between a
state official acting as an organ of the state or as an agent.57 Even
though it does not expressly refer to officials,58 the definition of ‘state’ has
been interpreted expansively by English courts: ‘[s]ection 14(1) must be
read as affording to individual employees or officers of a foreign State
protection under the same cloak as protects the State itself.’59 The House
of Lords endorsed this position in Jones v Saudi Arabia.60 The UN
Convention takes a similar approach by extending immunity to state
officials, and takes the further step of including ‘representatives of the
state acting in that capacity’ within the definition of ‘state’.61
The US Supreme Court recently expressed a contrary position. It had
long been understood that the US Act covered individuals,62 but the
Supreme Court held that individuals (in that case the former Prime
Minister of Somalia) were not included in the definition of ‘foreign state’ or
63
as ‘agencies or instrumentalities’.63 The Court also firmly rejected the
petitioner’s argument that the Act covered his claim to immunity due to its
purpose and intent to codify the law on the immunity of individual officials.64 Nor was the Court concerned that its interpretation would ‘make
the statute optional’.65 The viability of this position is yet to be
determined; presumably individuals may be covered to some extent at
least at common law. But a dual regime is untidy and undesirable: as
observed by the Ontario Court of Appeal, ‘[w]hat is the point of the state
having immunity if its personnel have none when carrying out their official
duties in the host country?’66
The State Immunity Act 1978 specifically extends privileges and
immunities ratione materiae to ‘the sovereign or other head of that state
in his public capacity’.67 While
References
(p. 495) in office, such officials will also enjoy immunity ratione
personae.68 Although the UN Convention does not (along with the
European Convention and the US legislation) specify the immunity of
heads of state, such individuals are included through article 2(1)(b)(i) and
(iv). It must be emphasized, however, that former heads of state occupy a
distinct category and enjoy only immunity ratione materiae; absolute
personal immunity ceases on termination of office.69
(B) Foreign States as Claimants
Foreign states generally have the capacity to appear in foreign courts as
claimants, and quite frequently do so.70 Having submitted to the
jurisdiction of the foreign court by instituting proceedings, the state has
no immunity from jurisdiction in respect of those proceedings.71 This
extends to counterclaims relating to the legal relationship or facts arising
from the state’s principal claim,72 but does not entail a waiver of immunity
from enforcement jurisdiction.73 In the US, a state may be subject to a
counterclaim unrelated to its original claim provided that the counterclaim
‘does not seek relief exceeding in amount or differing in kind from that
sought by the foreign state’.74 This principle is said to prevent a foreign
state ‘invoking [United States] law but resisting a claim against it which
fairly would curtail its recovery’.75
(C) Foreign States as Respondents
(i) Commercial transactions
The ‘most significant’76 exception to the rule of immunity from jurisdiction
concerns ‘commercial transactions’77or ‘commercial activity’.78 Section 3
of the State Immunity
References
(p. 496) Act 1978, on which Article 2(1) of the UN Convention is
based,79 typifies the list approach adopted for the former category. As
well as providing an exception for contracts to be performed in the
UK,80 it includes three categories of exceptions under the ‘commercial
transactions’ umbrella: contracts for the supply of goods or services;
financial transactions; and a residual category covering other acts iure
gestionis.81 This residual category has been interpreted as expressing
the distinction between acts iure imperii and iure gestionis in respect of
transactions generally. It is only for this latter category that the court will
have to consider the sovereign character of the act, since section 3(3)
extends to all transactions and contracts.82 Further, the relationship
between the proceedings and the commercial transaction must also be
firmly established. Indeed, it has been held by the majority of the
Supreme Court that an enforcement judgment is insufficiently related to
the transaction with which the original judgment was concerned.83
A second group of domestic laws relies on a broad reference to
‘commercial activity’ as the basis of the exception, but a precise definition
of this term is not provided.84 In the US, the commercial activity must
have a sufficient nexus to the US;85 no such territorial link is required
under the ‘commercial transaction’ exception in section 3(1)(a) of the UK
Act. The US Supreme Court has also placed strict emphasis on the
nature of the act as the determinative criterion.86
(ii) Local employment
The exception for ‘contracts of employment’ is likewise subject to diverse
approach-es.87 Though the trend towards limiting state immunity in
respect of local employment disputes is clear,88 different jurisdictions
treat the same subject-matter differently.89 The more significant problem
arising from contracts of employment is the inadequacy
References
(p. 497) of the private law criterion in this context.90 Neither this criterion,
nor an examination of the ‘nature of the act’, provides any scope for the
recognition of sovereign activity. States have also taken different
approaches in evaluating which duties of an employee amount to
participation in sovereign activity.91
States have essentially resorted to two distinct models, with the
differences represented again by the UK and US legislation. The State
Immunity Act 1978 excludes employment contracts from the definition of
‘commercial transaction’, with the exclusion of immunity in respect of
those contracts depending on a ‘minimum contacts’ approach, rather
than requiring a characterization of the breach.92 The commerciality of
the arrangement is not a relevant factor; the focus is on meeting the
statutory thresholds of connection between the defendant and the
forum.93 By contrast, the US Act treats employment contracts under the
rubric of ‘commercial activity’.94 The operation of the exception from
immunity under this model depends on the characterization of the claim
as one arising from a commercial contract between the foreign state and
the individual.95 Nationality or residence is not relevant.96 Across the
jurisdictions, factors including the employment relationship,97 the duties
of the employee,98 and the status of the employer99 have been
considered to militate against immunity.100
(iii) Other local private law claims
There are several exceptions from state immunity within the realm of
private law. They extend, inter alia, to claims concerning personal injury
and damage to property locally occurring,101 ownership, possession, and
use of property,102 intellectual property
References
(p. 498) rights,103 and membership of bodies corporate.104 Of particular
interest is the exception for (ex hypothesi) non-commercial torts. Given
that jurisdiction for tort claims is founded on the fact of injury locally
caused, the traditional acta iure gestionis/acta iure imperii dichotomy has
no place:105 thus torture on embassy premises would be covered, but not
defamation. In other words, the exception applies irrespective of the
sovereign character of the delictual act.106 However, despite the
irrelevance of this distinction in each of the statutes and conventions,
common law courts have maintained it,107 in a manner similar to civil law
jurisdictions.108
The key criterion is the occurrence of a tortious act or omission within the
territory; the fact of damage occurring in the territory is insufficient under
UK law. Thus personal injuries inflicted by agents of a foreign state in
another jurisdiction have been held to be excluded from the
exception.109 This can be contrasted with the position in Canada, where
the key criterion is the occasioning of physical injury in Canada,110 and
the US, where it appears that both the act and the injury must occur
locally.111 Under the UK Act the author need not be present locally, in
contrast to the position under the European and UN Conventions.
Though the equivalent exception in the Foreign Sovereign Immunities Act
1976 requires that the tortious act or omission have been committed in
the US, discretionary decisions, as well as certain claims (such as libel,
slander, deceit, and misrepresentation) remain protected by
immunity.112 Further, the UK Act concerns physical, rather than mental
injury,113 and loss of or damage to tangible property, rather than pure
economic loss.114
While exceptions for non-commercial torts were originally directed
towards ‘insurable’ personal risks, such as traffic accidents, there has
been some controversy over the extent of their application. In particular,
there have been contrary findings in cases of war damage.115 Generally,
states appear to retain their immunity in the
References
116
(p. 499) case of tortious acts occasioned by their armed forces.116 For
example, in Germany v Italy the International Court concluded that
customary international law continues to require that a state be accorded
immunity in proceedings for torts allegedly committed on the territory of
another state by its armed forces and other organs of state in the course
of conducting an armed conflict. The Court held that practice in the form
of judicial decisions, opinio iuris, and an almost complete absence of
contrary authority supported this position.117This limitation on the
exception to immunity has been subject to criticism, particularly in the
context of human rights violations causing personal injuries.118
(D) Criminal Jurisdiction
Whether and when state immunity will apply in domestic criminal
proceedings is a complex question. In theory it should not matter for the
purposes of immunity under international law if the conduct is classified
by the forum state as civil or criminal. The European Convention
impliedly endorses the absolute immunity of the state from foreign
criminal jurisdiction.119 The UN Convention and the domestic statutes
arguably implicitly allow a distinction on the basis of the domestic
characterization of the act by excluding criminal proceedings from their
scope.120
The scope of immunity from foreign criminal jurisdiction is yet to be
conclusively determined.121 Customary international law in principle
extends immunity ratione materiae to acts of state officials undertaken in
their official capacity; but there is practice supporting an exception if the
act was committed in the territory of the forum state.122
The situation is even more complex if the conduct in question amounts to
an international crime.123 It is well established that serving heads of state
enjoy immunity
References
(p. 500) ratione personae from foreign criminal jurisdiction for
international crimes as they do for domestic crimes.124 Other ‘holders of
high-ranking office in a State’ are also now recognized as enjoying this
125
same immunity,125 although given the functional basis for recognition of
immunity ratione personae the category of officials enjoying immunity on
these grounds has no obvious limit. It appears that this privileged group
extends to heads of government,126 defence ministers,127 and ministers
for commerce and international trade.128 The International Court was not
prepared to extend personal immunities to the Djiboutian Procureur de la
République and Head of National Security, though the lack of clarity in
Djibouti’s submissions on this point may have affected the Court’s
position.129
It is less clear whether international crimes committed by former officials
before or during their period of office will be covered by immunity ratione
materiae, given that immunity ratione personae will have ceased to apply.
There are increasing examples of state practice denying immunity in
such circumstances,130 and some jurists go so far as to suggest that
there is an emerging norm of customary international law denying
immunity ratione materiae for international crimes.131 The starting point
for such arguments is normally the decision of the House of Lords
in Pinochet (No 3), refusing to uphold the immunity ratione materiae of a
former head of state in a prosecution for torture at international
law.132 However, despite the common assumption that immunity was
denied because torture was considered not to be an official function
subject to immunity ratione materiae, most of the Law Lords put forward
other rationales for not allowing immunity; the case ultimately turned on
the specific circumstances of Chile’s treaty obligations.133 There is a
striking contrast between what the case narrowly decided and the farreaching influence it has had. However, practice is not yet sufficiently
widespread or consistent, whatever the position may be de lege ferenda,
to assert that a customary norm has crystallized denying
immunity ratione materiae in prosecutions of international crimes in
domestic courts.
This is not necessarily inconsistent with the practice of international
criminal tribunals denying immunity to those accused of having
committed international crimes.
References
(p. 501) Individual state agents can commit crimes intuitu personae, and
their status as agents generally will not be a defence against individual
responsibility for international crimes in an otherwise competent
international forum.134 But the matter is heavily dependent on the
structure and legal foundation of the relevant tribunal, including whether
or not the UN Security Council is involved.135 In the case of the
International Criminal Court, for example, states parties have consented
to the waiver of immunity for their nationals.136 The entitlement of
nationals of non-parties to personal immunity is not obviously eroded,
particularly in the light of Article 98(1) of the ICC Statute.137 However, the
Pre-Trial Chamber holds a firm opinion to the contrary.138
(E) Waiver of Immunity
Subject to the doctrine of non-justiciability, no fundamental principle
prohibits the exercise of jurisdiction, and immunity may be waived by the
state concerned either expressly or by conduct. Whether express or
implied, consent must be granted by an authorized state agent.139 Under
the State Immunity Act 1978 (in this respect broadly reflective of the
European and UN Conventions),140 a foreign state will be deemed to
have waived its immunity from jurisdiction in one of four ways: (a) by
submission to the jurisdiction after the dispute has arisen; (b) by prior
written agreement; (c) by the institution of proceedings; and (d) by
intervening or taking a step in the proceedings (other than to assert
immunity).141 The Act’s inclusion of waiver by prior written agreement is a
change from the common law, which required a genuine and unequivocal
submission in the face of the court.142 In terms of prior agreements
specifying recourse to arbitration, the state cannot avoid proceedings
related to the arbitration, which
References
(p. 502) extends to enforcement proceedings.143 However, an arbitration
agreement specifying the application of the law of the UK is not regarded
as a waiver.144 Although a foreign state may be deemed to have
consented to the enforcement stage of an arbitration, a waiver to the
jurisdiction of the court does not, as a rule, entail a waiver of immunity
from enforcement.145
3. Attachment and Seizure in Execution146
The issue of immunity from adjudicative jurisdiction is distinct from the
question of immunity from measures of constraint consequent upon the
exercise of enforcement jurisdiction, that is, immunity from
execution.147 The terms ‘measures of constraint’ and ‘execution’ in this
context encompass the full variety of pre- and post-judgment measures
available in national legal systems, from injunctions preventing a
respondent state from disposing of certain assets pending resolution of a
dispute to attachment or seizure orders against a foreign state’s property
for enforcing a final judgment.148
There is no absolute rule prohibiting execution against property of a
foreign state within the forum, but there are significant restrictions on
such execution.149 One important restriction is that measures of
constraint cannot be enforced in personam against state officials acting in
their official capacity.150 Most attempts at enforcement against foreign
states focus instead on state property.151
The exceptions to immunity from execution against state property are
covered in Articles 18 (pre-judgment) and 19 (post-judgment) of the UN
Convention, generally
References
(p. 503) reflecting the position developed by national courts.152 As a
starting point, immunity from execution of foreign judgments and orders
against the property of a state can be waived by the express consent of
that state.153 Such consent is not to be inferred from a waiver of immunity
from foreign jurisdiction;154 it is well established that the regimes
governing immunity from adjudicative jurisdiction and immunity from
execution are separate.155 The Convention sets out two further
exceptions to immunity from execution: first, state property will not be
immune if it has been specifically earmarked for satisfaction of the claim
in question.156 Secondly, in the case of post-judgment measures only,
property will not be immune if it is used or intended to be used for ‘other
than government non-commercial purposes’ and it is in the territory of the
forum state.157 Article 21 specifies five categories of state property that
are presumed to be excluded from this exception.158 The purpose
exception in the UN Convention also comes with a proviso that postjudgment measures of constraint may be taken only against property that
has a connection with the entity against which the proceeding was
directed.159The purpose exception is the most commonly invoked, as it is
rare for states to waive their immunity from execution or to earmark
property.
The transition from absolute immunity towards a restrictive doctrine has
been slower to take hold in the case of immunity from execution against
state property than for immunity from adjudicative jurisdiction.160 The
exceptions to immunity from execution are narrow in scope, and courts
tend to respect the discretion of states in claiming that the property at
issue is used for public purposes. This is understandable, given that
measures of constraint are much more intrusive on state sovereignty
than the mere exercise of declaratory jurisdiction by a foreign court. State
property
References
(p. 504) used for public purposes is not the same as property of private
persons.161 On the other hand, there should be no justification for
refusing to enforce a judgment if the use to which the asset is put does
not involve a foreign state’s sovereignty.162 The purpose test is a means
of balancing respect for state sovereignty and the judgment debtor’s right
to be paid amounts judged due and owing.
4. Further Concerns and Issues
(A) Third World Concerns
The transition from absolute immunity ratione materiae has not been
straightforward or unproblematic for states whose primary exposure is as
defendants in foreign courts. Although the Asian-African Legal
Consultative Committee published a report adopting restrictive immunity
as early as 1960163 and certain Asian and African states actually
introduced legislation to this effect,164 many states, including China and
Japan, stuck steadfastly to the doctrine of absolute immunity.165 Japan
now embraces restrictive immunity, and is a signatory to the UN
Convention.166 China, too, has signed the Convention, having actively
participated in its drafting, and has demonstrated a willingness to waive
immunity through bilateral arrangements.167 However, China’s
commitment to restrictive immunity has been called into question by its
confirmation of its practice of absolute immunity, in connection with a
recent case before the Hong Kong Court of Final Appeal. A majority of
the Court considered that, although Hong Kong embraced restrictive
immunity before handover, the doctrine of state immunity adopted in the
Hong Kong Special Administrative Region must, as a matter of legal and
constitutional principle, mirror that espoused by the Central People’s
Government in China.168 In finding that China adopted the absolute
theory of immunity, the Court relied on statements issued by the Office of
the Commissioner of the
References
(p. 505) Ministry of Foreign Affairs to this effect.169 China’s (and thus
Hong Kong’s) proclaimed acceptance of absolute immunity in connection
with this judgment and its anomalous position on its signature of the UN
Convention create an obstacle to the consolidation of the customary rule
of restrictive immunity.
(B) State Immunity and Human Rights
There is a persistent tension in the case-law between the profile of state
immunity and the principles of human rights. A large body of academic
opinion has developed on this issue, particularly on the subject of
immunity for civil claims relating to tor-ture.170 An exception for civil
claims for serious violations for human rights was considered but not
adopted in the UN Convention due to a lack of consensus.171 Despite the
calls for progressive development of the law to encompass an exception,
recent case-law has confirmed that state immunity provides a procedural
bar to civil claims for damages arising from human rights
violations.172Moreover, the European Court of Human Rights has held
that the grant of state immunity in this context does not infringe Article 6
of the 1950 European Convention on Human Rights.173 In Jones v Saudi
Arabia, Pinochet (No 3) was firmly distinguished from civil proceedings
under the State Immunity Act 1978.174 The House of Lords held that no
exception to the rule of immunity existed in the case of torture committed
abroad. Not only was there no statutory exception to the rule of immunity,
but the peremptory character of the prohibition had no bearing on the
grant of immunity. Consistent with other state practice, the House of
Lords rejected the argument that a peremptory norm is hierarchically
superior to and thus abrogates the operation of state immunity.175 As Fox
has observed, ‘there is no substantive content in a procedural plea of
state immunity upon which a ius cogens mandate can bite’.176 This was
confirmed in Germany v Italy, where the Court drew a fundamental
distinction between questions of substance and procedure, holding that
the peremptory status of the rule (as a substantive matter) could
References
(p. 506) have no impact on the question of state immunity (as a
procedural matter).177 Unless the relevant prohibition develops to include
an ancillary procedural rule requiring the assumption of civil jurisdiction,
state immunity remains unaffected.178 Despite the emphasis
in Distomo and Ferrini on the peremptory character of the relevant
prohibitions, the fact that the impugned conduct was committed in the
territory of the forum state suggests that these cases may not be
irreconcilable with the Al-Adsani/Jones line of authority, at least insofar as
concerns acts not performed iure belli.179
References
Footnotes:
1
Harvard Research (1932) 26 AJIL Supp 451; Fitzmaurice (1933)
14 BY 101; Allen, The Position of Foreign States before National
Courts (1933); Mann (1938) 2 MLR 57; Lauterpacht (1951) 28 BY 220;
Lalive (1953) 84 Hague Recueil 205; Mann (1955) 18 MLR 184;
Sucharitkul, State Immunities and Trading Activities (1959); Sucharitkul
(1976) 149 Hague Recueil 87; Sinclair (1980) 167 Hague Recueil 113;
UN Legislative Series, Materials on Jurisdictional Immunities of States
and Their Property (1982); Higgins (1982) 29 NILR 265; ILA, Report of
the 60th Conference (1982) 325; Badr, State Immunity: An Analytical and
Prognostic View (1984); Trooboff (1986) 200 Hague Recueil 235;
Schreuer, State Immunity (1988); ILA, Report of the 64th Conference
(1990) 393; IDI (1991) 64/II Ann de l’Inst 388; ILA, Report of the 66th
Conference (1994) 452; Cosnard, La Soumission des États aux tribunaux
internes (1996); Pingel-Lenuzza, Les Immunités des États en droit
international (1997); IDI (2001) 69 Ann de l’Inst 742; Dickinson, Lindsay
& Loonam, State Immunity (2004); Pingel, Droit desimmunités et
exigencies du procès equitable (2004); Bankas, The State Immunity
Controversy in International Law (2005); Hafner, Kohen & Breau
(eds), State Practice Regarding State Immunities (2006); Fox, The Law
of State Immunity (2nd edn, 2008); IDI (2009) 73 Ann de l’Inst 3;
Franey, Immunity, Individuals and International Law (2011); Yang, State
Immunity in International Law (2012).
2
On the personal character of the plea of state immunity: Fox (2nd edn,
2008) 102–3.
3
Caplan (2003) 97 AJIL 741. This notion persists in the US: Republic of
Austria v Altmann, 541 US 677, 689 (2004).
4
E.g. Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1583; Distomo
Massacre (2000) 129 ILR 513, 516; Al-Adsani v UK (2001) 123 ILR 24,
§54; Arrest Warrant of 11 April 2000 (DRC v Belgium), ICJ Reports 2002
p 3, 20–1; Schreiber v Germany (2002) 216 DLR (4th) 513, 518; Iraq v
Vinci (2002) 127 ILR 101, 109; X v Israel (2002) 127 ILR 310, 310–11; X
v Saudi School in Paris (2003) 127 ILR 163, 166; Kenyan Diplomatic
Residence (2003) 128 ILR 632, 635–6; Ferrini v Federal Republic of
Germany (2004) 128 ILR 658, 663–4; Jones v Saudi Arabia [2007] 1 AC
270, 291, 306; Jurisdictional Immunities of the State (Germany v Italy),
Judgment of 3 February 2012, §§53–61. Cf Finke (2010) 21 EJIL 853.
5
Arrest Warrant, ICJ Reports 2002 p 3; Certain Criminal Proceedings in
France (Republic of the Congo v France), Provisional Measure, Order of
17 June 2003, ICJ Reports 2003 p 102; Certain Questions of Mutual
Assistance in Criminal Matters (Djibouti v France), ICJ Reports 2008 p
177. Also: Germany v Italy, ICJ, Judgment of 3 February 2012; Gattini
(2011) 24 LJIL 173.
6
Arrest Warrant, ICJ Reports 2002 p 3, 84 (Higgins, Kooijmans &
Buergenthal), 98 (Al-Khasawneh, diss), 151 (van den Wyngaert, diss); AlAdsani v UK (2001) 123 ILR 24, §54; Fogarty v UK (2001) 123 ILR 53,
§34; McElhinney v Ireland (2001) 123 ILR 73, §35; Council of
Europe, Explanatory Reports on the European Convention on State
Immunity and the Additional Protocol (1972) §1. See also chapter 20.
7
Further: Crawford (1983) 54 BY 75.
8
E.g. Fox (2nd edn, 2008) 203; Pinochet (No 3) [2000] 1 AC 147, 269
(Lord Millett).
9
E.g. Arrest Warrant, ICJ Reports 2002 p 3; Mofaz (2004) 128 ILR
709; Bo Xilai (2005) 128 ILR 713. Cf Mutual Assistance in Criminal
Matters, ICJ Reports 2008 p 177; Bat v Investigating Judge of the
German Federal Court [2011] EWHC 2029 (Admin).
10
In the criminal context see UN Secretariat memorandum, A/CN.4/596,
31 March 2008, §§93–136.
11
E.g. Marcos and Marcos v Federal Department of Police (1989) 102
ILR 198, 203; Arrest Warrant, ICJ Reports 2002 p 3, 21.
12
GA Res 32/151, 19 December 1977.
13
With commentaries; ILC Ybk 1991/II(2), 12.
14
GA Res 53/98, 8 December 1998, §2. See ILC Ybk 1999/II(2), 149.
15
GA Res 55/150, 12 December 2000, §3.
16
Report of the Ad Hoc Committee on Jurisdictional Immunities of
States and Their Property, A/59/22, 5 March 2004.
17
18
GA Res 59/38, Annex, 2 December 2004.
It should be read together with the ILC commentary: GAOR, Summary
Record of the 13th Meeting, Sixth Committee, A/C.6/59/SR.13, 22 March
2005, §35.
19
19
16 May 1972, ETS 74.
20
UN Convention, Art 5. See FSIA, 28 USC §1604; State Immunity Act
1978, s1; European Convention, Art 15.
21
Ibid, Arts 10–17.
22
Ibid, Arts 7–8. Note also Art 20.
23
GA Res 59/38, 2 December 2004, §2.
24
UN Convention, Art 3(2).
25
AIG Capital Partners Inc v Republic of Kazakhstan[2006] 1 WLR
1420, 1446; Fang v Jiang Zemin(2006) 141 ILR 702, 717; Jones v Saudi
Arabia [2007] 1 AC 270, 280, 289, 293; Svenska Petroleum Exploration
AB v Government of the Republic of Lithuania (No 2) [2007] QB 886,
929.
26
Case No 1231(Ju) [2003], 21 July 2006 (Japan), discussed in Jones
(2006) 100 AJIL 908. For further civil law practice: Case 00–02837 K/04
(2001) (Norway), discussed in Fife & Jervell (2001) 70 Nordic JIL 531,
551.
27
But note China’s recent position on the UN Convention: ‘the
Convention has no binding force on China, and moreover it cannot be the
basis of assessing China’s principled position on relevant issues. Aft er
signature of the Convention, the position of China in maintaining absolute
immunity has not been changed, and has never applied or recognized
the so-called principle or theory of “restrictive immunity” ’, cited in DRC v
FG Hemisphere Associates LLC, Hong Kong Court of Final Appeal,
Judgment of 8 June 2011, §202.
28
E.g. the early practice of Poland adopting absolute immunity, based
on reciprocity, and the lack of contrary recent practice: Czechoslovak
Republic (1926) 3 ILR 180; Trade Delegation at Warsaw of USSR v
Maurycy Fajans (1928) 4 ILR 170; German Immunities in Poland (1937)
8 ILR 239; French Consulate in Cracow (1958) 26 ILR 178; Maria B v
Austrian Cultural Institute (1987) 82 ILR 1; UN Legislative
Series, Materials on Jurisdictional Immunities of States and Their
Property (1982) 90–1; Wyrozumska (2000) 24 Pol Ybk 77. Note,
however, the Polish delegation’s support of the ILC Draft Articles: GAOR,
Summary Record of the 22nd Meeting, Sixth Committee,
A/C.6/46/SR.22, 28 October 1991, §§66, 68. Poland has neither signed
nor ratified the European or the UN Convention.
29
See the review of earlier approaches in ALRC 24, Foreign State
Immunity (1984) on which the 1985 Australian Act was based.
30
The Philippine Admiral [1977] AC 373, 401–2 (actions in
rem); Trendtex Trading Corporation v The Central Bank of Nigeria [1977]
QB 529 (actions in personam); I Congreso del Partido [1983] 1 AC 244.
31
See Lord Wilberforce’s much-cited test at [1983] 1 AC 244, 267,
though there is no ‘bright line’: Littrell v US (No 2) [1995] 1 WLR 82, 95.
32
Bowett (1978) 37 CLJ 193; Delaume (1979) 73 AJIL 185; Mann
(1979) 50 BY 43; White (1979) 42 MLR 72. For the US counterpart:
Foreign Sovereign Immunities Act 1976 (FSIA), 28 USC §1602ff. For
comment: Delaume (1977) 71 AJIL 399; von Mehren (1978) 17 Col
JTL 33; Brower, Bistline, Loomis (1979) 73 AJIL 200.
33
Hansard, House of Lords, vol 388, c59, 17 January 1978 (Second
Reading).
34
State Immunity Act 1978, s16. Criminal matters are still dealt with by
the common law: see R (on the application of Alamieyeseigha) v Crown
Prosecution Service [2005] EWHC 2704 (Admin).
35
State Immunity Act 1978, s14(1), (2). On s14(1): Kuwait Airways
Corporation v Iraqi Airways Co [1995] 1 WLR 1147.
36
Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1575–6. The US FSIA,
by contrast, was intended to cover the field formerly governed by the
common law: Samantar v Yousuf 130 S.Ct 2278, 2289 (2010).
37
State Immunity Act 1978, s13(4). See Alcom Ltd v Republic of
Colombia [1984] AC 580; Crawford (1981) 75 AJIL 820.
38
State Immunity Act 1978, s13(3). See the broad interpretation of
waiver in A Company v Republic of X [1990] 2 Lloyd’s Rep 570; Sabah
Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan [2002] EWCA Civ
1643. Cf s9 and the narrower approach in Svenska Petroleum
Exploration AB v Republic of Lithuania (No 2) [2007] QB 886.
39
39
Aziz v Aziz [2008] 2 All ER 501.
40
Re International Tin Council (No 2) [1988] 3 All ER 257, 358.
41
State Immunity Act 1978, s1(2).
42
Victory Transport Incorporation v Comisaria General de
Abastecimientos y Transportes, 336 F.2d 354 (2nd Cir, 1964). Also:
Lauterpacht (1951) 28 BY 220, 237–9.
43
State Immunity Act 1978, ss 4(3), 10–11, 13(4), (5), 14(4)
(‘commercial purposes’); (3)(c), 14(2)(a) (‘in the exercise of sovereign
authority’).
44
E.g. Neger v Hesse (1969) 52 ILR 329, 330; R (on the application of
Alamieyeseigha) v Crown Prosecution Service [2005] EWHC 2704
(Admin); cf Mellenger v New Brunswick Development Corporation [1971]
1 WLR 604.
45
European Convention, Art 28(1), (2). See Declaration of Republic of
Austria, 10 July 1974; Declaration from the Permanent Representative of
the Federal Republic of Germany, 5 June 1992; Declaration from the
Minister of Foreign Affairs of Belgium, 4 September 2003.
46
State Immunity Act 1978, s14(5), (6). Also: Bank of Credit and
Commerce International (Overseas) Ltd v Price Waterhouse [1997] 4 All
ER 108 (immunity denied the head of a constituent territory for which an
Order in Council had not been issued). Cf the broader common law
position in Mellenger v New Brunswick Development Corporation [1971]
1 WLR 604.
47
UN Convention, Art 2(1)(b)(ii); cf ILC Ybk 1990/II(1), 7;
ILC Ybk 1991/II/(2), 13.
48
State Immunity Act 1978, s14(1). See also the treatment of ‘legal
entities’ in European Convention, Art 27. Cf the combination of US,
European, and UK approaches in Foreign States Immunities Act 1985, s3
(Australia). Also: Ministry of Trade of the Republic of Iraq v Tsavliris
Salvage (International)Ltd [2008] 2 All ER (Comm) 805, 825–6; Wilhelm
Finance Inc v Ente Administrador Del Astillero Rio Santiago [2009]
EWHC 1074 (Comm), §§12, 52. For the position pre-1978: Trendtex
Trading Corporation v Central Bank of Nigeria [1977] QB 529, 573–5.
49
49
State Immunity Act 1978, s14(2). See Kuwait Airways Corporation v
Iraqi Airways Co [1995] 1 WLR 1147, 1158, 1174.
50
Kuwait Airways Corporation v Iraqi Airways Co [1995] 1 WLR 1147,
1160.
51
Saudi Arabia v Nelson, 507 US 349, 355 (1993).
52
FSIA, 28 USC §1603(a), (b).
53
First National City Bank v Banco Para el Comercio Exterior de Cuba,
462 US 611, 624 (1983).
54
UN Convention, Art 2(1)(b)(iii). Also: comments in the Annex to the
Convention on the interpretation of ‘entity’ in Art 19(c).
55
Church of Scientology (1978) 65 ILR 193, 198; Indian Foreign
Minister (1988) 90 ILR 408, 410; Schmidt v Home Secretary (1997) 2 IR
121; Prosecutor v Blaški? (1997) 110 ILR 607, 707; USA v
Friedland (1999) 120 ILR 417, 450; Pinochet(No 3) [2000] 1 AC 147, 269,
285–6; Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1583; AXA c
Asecna (2005) 94 Rev crit DIPriv 470; Fang v Jiang Zemin (2006) 141
ILR 702, 706–7; cf Samantar v Yousuf 130 S.Ct 2278 (2010).
56
Whomersley (1992) 41 ICLQ 848, 850. See Twycross v Drefus [1877]
5 Ch 605; Rahimtoola v Nizam of Hyderabad [1958] AC 379.
57
Ibid, 406.
58
As noted by Mance LJ in Jones v Saudi Arabia [2005] QB 699, 721.
59
Propend Finance Pty Ltd v Sing (1997) 111 ILR 611, 669.
60
[2007] 1 AC 270, 281, 299; followed in Fang v Jiang Zemin (2006) 141
ILR 702, 706–7. On Jones: O’Keefe (2006) 77 BY 500. Also: Grovit v De
Nederlandsche [2006] 1 WLR 3323, 3338–9 (aff’d [2008] 1 WLR 51, 56–
7).
61
UN Convention, Art 2(1)(b)(iv). Further: Fox (2nd edn, 2008) 460.
62
Chuidian v Philippines, 912 F.2d 1095 (9th Cir, 1990); Keller v Central
Bank, 277 F.3d 811 (6th Cir, 2002); In re Terrorist Attacks, 538 F.3d 71
(2nd Cir, 2008).
63
64
Samantar v Yousuf, 130 S.Ct 2278, 2286–7, 2289 (2010).
64
Ibid, 2289–91.
65
Ibid, 2292.
66
Jaffe v Miller (1993) 95 ILR 446, 458–9.
67
State Immunity Act 1978, s14(1). See the comparable position under
the Australian Foreign States Immunities Act 1985, s3(3)(b).
68
State Immunity Act 1978, s20(1) by reference to the Diplomatic
Privileges Act 1964.
69
If a state claims immunity on behalf of one of its organs, it assumes
responsibility for any internationally wrongful acts committed by its agent
or organ: Mutual Assistance in Criminal Matters, ICJ Reports 2008 p 177,
244.
70
E.g. Republic of Haiti v Duvalier [1990] 1 QB 202.
71
European Convention, Art 1(1); FSIA, 28 USC §1605; State Immunity
Act 1978, s2(1), (3)(a); UN Convention, Art 8(1)(a); ILC Ybk 1991/II(2),
29.
72
European Convention, Art 1(2); State Immunity Act 1978, s2(6); UN
Convention, Art 9. Also: High Commissioner for India v Ghosh [1960] 1
QB 134, 140.
73
European Convention, Arts 1(2), 20(1)(a); State Immunity Act 1978,
s13(3); UN Convention, Art 20. See the common law rule as articulated
in Duff Development Co Ltd v Government of Kelantan [1924] AC 797.
74
FSIA, 28 USC §1607; National City Bank of New York v Republic of
China, 348 US 356 (1955).
75
Ibid, 361.
76
Republic of Argentina v Weltover, 504 US 607, 611 (1992).
77
State Immunity Act 1978, s 3(1)(a); State Immunity Act 1979, s5
(Singapore); State Immunity Ordinance 1981, s5 (Pakistan); Foreign
States Immunities Act 1981, s4 (South Africa); Foreign States Immunities
Act 1985, s11(1) (Australia); UN Convention, Arts 2(1)(c), 10(1). See Fox
(1994) 43 ICLQ 193.
78
78
European Convention, Art 7(1); FSIA, 28 USC §1605(a)(2); State
Immunity Act 1982, s5 (Canada); Immunity of Foreign States from the
Jurisdiction of Argentinean Courts 1995, Art 2(c) (Argentina).
79
On the similarity between the two sections: Svenska Petroleum
Exploration AB v Republic of Lithuania (No 2) [2007] QB 886, 929.
80
State Immunity Act 1978, s3(1)(b). Also: European Convention, Art 4.
81
State Immunity Act 1978, s3(3).
82
Cf Koo Golden East Mongolia v Bank of Nova Scotia [2008] QB 717.
See O’Keefe (2007) 78 BY 582.
83
NML Capital Ltd v Republic of Argentina [2011] 3 WLR 273, 306–10,
313, approving the narrow construction of ‘relating to’ in AIC Ltd v
Federal Government of Nigeria [2003] EWHC 1357 and Svenska
Petroleum Exploration AB v Republic of Lithuania (No 2) [2007] QB 886.
Cf the dissentients’ disapproval of these cases: [2011] 3 WLR 273, 288
(Lord Phillips of Worth Matravers PSC), 318 (Lord Clarke JSC).
84
FSIA, 28 USC §1603(d), 1605(a)(2); Republic of Argentina v
Weltover, 504 US 607, 612 (1992): ‘This definition…leaves the critical
term “commercial” largely undefined.’ Also: Immunity of Foreign States
from the Jurisdiction of Argentinean Courts 1995, Art 2(c).
85
FSIA, 28 USC §1605(a)(2).
86
Republic of Argentina v Weltover, 504 US 607, 614 (1992).
Also: Saudi Arabia v Nelson, 507 US 349 (1993), a controversial
decision.
87
Garnett (1997) 46 ICLQ 81. Also: Fox (1995) 66 BY 97.
88
Fogarty v UK (2001) 123 ILR 53, §37.
89
E.g. Barrandon v USA (1992) 113 ILR 464, 466; Barrandon v
USA (1995) 113 ILR 464, 469; Barrandon v USA (1998) 116 ILR 622,
624; Canada v Employment Appeals Tribunal & Burke (1991) 95 ILR 467,
470; (1992) 95 ILR 470, 473, 481. In the case of interpreters: Conrades v
UK (1981) 65 ILR 205; Special Representative of State of the City of the
Vatican v Pieciukiewicz (1982) 78 ILR 120; UAE v Abdelghafar (1995)
107 ILR 626; Saudi Arabia v Nasser [2000] EWCA Civ J 1114; cf the
denial of immunity in Embassy Interpreter Dismissal (1985) 77 ILR
485; Zambian Embassy v Sendanayake (1992) 114 ILR 532; R v
Iraq (1994) 116 ILR 664.
90
Sengupta v India (1982) 64 ILR 352, 360–1. Also: Re Canada Labour
Code (1989) 86 ILR 626, 630; X v Argentina (1996) 114 ILR 502, 504–6.
91
R v Iraq (1994) 116 ILR 664, 667; cf X c Saudi School in Paris (2003)
127 ILR 163, 166.
92
State Immunity Act 1978, s3(3), 4. Also: European Convention, Art 5;
State Immunity Act 1979, s6 (Singapore); State Immunity Ordinance
1981, s6 (Pakistan); Foreign States Immunities Act 1981, s5 (South
Africa); States Immunities Act 1985, s12 (Australia); Immunity of Foreign
States from the Jurisdiction of Argentinean Courts 1995, Art 2(d)
(Argentina); UN Convention, Arts 2(1)(c), 11.
93
On the notion of ‘minimum contacts’ generally: Trooboff (1986) 200
Hague Recueil 235, 331–2.
94
FSIA, 28 USC §1605(a)(2); State Immunity Act 1982, s5 (Canada).
For jurisdictions without legislation: e.g. USA v Guinto (1990) 102 ILR
132, 145.
95
Saudi Arabia v Nelson, 507 US 349 (1993). US courts have recently
employed a multi-factor inquiry in analysing these issues: El-Hadad v
UAE, 496 F.3d 658, 665 (2007).
96
Indeed, §1605(a)(2) makes no reference to nationality. Also: Verlinden
v Central Bank, 461 US 480, 490–1 (1983).
97
E.g. De Queiroz v Portugal (1992) 115 ILR 430, 434.
98
E.g. X v Israel (2002) 127 ILR 310, 313.
99
E.g. USA v Guinto (1990) 102 ILR 132, 145.
100
Fogarty v UK (2001) 123 ILR 53, §38. This term is not defined in any
of the domestic or international instruments. The State Immunity Act
1978 appears to encompass statutory claims where the claimant was an
independent contractor: see s4(6).
101
European Convention, Art 11; State Immunity Act 1978, s5; UN
Convention, Art 12. Also: FSIA, 28 USC §1605(a)(5).
102
102
European Convention, Arts 9, 10; State Immunity Act 1978, s6; UN
Convention, Art 13.
103
European Convention, Art 8; State Immunity Act 1978, s7; UN
Convention, Art 14.
104
European Convention, Art 6; State Immunity Act 1978, s8; UN
Convention, Art 15.
105
Letelier v Chile, 488 F.Supp 665, 671 (1980); Crawford (1983)
54 BY 75, 111.
106
See e.g. Schreiber v Germany (2002) 216 DLR (4th) 513, 528–30.
107
Littrellv US (No 2) [1995] 1 WLR 82; Holland v Lampen-Wolfe [2000]
1 WLR 1573; Mizushimi (2001) 64 MLR 472.
108
See the review of state practice undertaken in McElhinney v
Ireland (2000) 121 ILR 198.
109
Al-Adsani v UK (2001) 123 ILR 24; Jones v Saudi Arabia [2007] 1 AC
270. Cf the reference to ‘national jurisdiction’ in IDI Res, Basel/III (1991),
Art 2(e).
110
State Immunity Act 1982, s6 (Canada); Bouzari v Islamic Republic of
Iran (2004) 128 ILR 586.
111
Argentine Republic v Amerada Hess Shipping Corp, 488 US 428
(1989).
112
The Act allows the exercise of extra-territorial jurisdiction in the case
of specific terrorist acts committed by state: FSIA, 28 USC §1605A.
E.g. In re Iran (2009) 659 F.Supp 2d 31.
113
Caramba-Coker v Military Affairs Office of the Embassy of the State
of Kuwait [2003] All ER (D) 186. Also: Bouzari v Islamic Republic of
Iran (2004) 128 ILR 586.
114
115
State Immunity Act 1978, s5(b).
Distomo Massacre (2000) 129 ILR 513, (2003) 129 ILR
556; Margellos v Federal Republic of Germany (2002) 129 ILR
525; Ferrini v Federal Republic of Germany (2004) 128 ILR 658
(confirmed by the Court of Cassation in Germany v Mantelli, No
14201/2008, 29 May 2008; Milde v Italy, No 1027/2008, 21 October
2008). Also: Germany v Italy, ICJ, Judgment of 3 February 2012.
116
Littrell v US (No 2) [1995] 1 WLR 82; Holland v Lampen-Wolfe [2000]
1 WLR 1573; McElhinney v Ireland (2001) 123 ILR 73; Margellos v
Federal Republic of Germany (2002) 129 ILR 525.
117
Germany v Italy, Judgment of 3 February 2012, §§77–8.
118
Al-Adsani v UK (2001) 123 ILR 24; Hall (2006) 55 ICLQ 411.
119
European Convention, Art 15 (Arts 1–14 relate only to civil matters).
120
GA Res 59/38, 2 December 2004, §2; FSIA, 28 USC §1603(a); State
Immunity Act 1978, s16(4); State Immunity Act 1979, s19(2)(b)
(Singapore); State Immunity Ordinance 1981, s17(2)(b) (Pakistan); State
Immunity Act 1982, s18 (Canada); Foreign States Immunities Act 1981,
s2(3) (South Africa); States Immunities Act 1985, s3(1) (Australia). Note
the human rights-related provision in Immunity of Foreign States from the
Jurisdiction of Argentinean Courts 1995, Art 3 (not yet in force), also Art
2(e). On immunity from criminal jurisdiction for diplomatic agents: e.g.
Diplomatic Privileges Act 1964, c81, Schedule 1, art 31(1).
121
The scope of state immunity from foreign criminal jurisdiction is
presently before the ILC: ILC Report 2008, GAOR, 63rd Session, Supp
No 10, A/63/10, Ch X; Second Report of Special Rapporteur Kolodkin, A/
CN.4/631, 10 June 2010. For the related UN Secretariat memorandum:
A/CN.4/596, 31 March 2008.
122
E.g. Bat v Investigating Judge of the German Federal Court [2011]
EWHC 2029 (Admin) and practice referred to therein.
123
Zappala (2001) 12 EJIL 595; Cassese (2002) 13 EJIL 853; Wirth
(2003) 13 EJIL 877; Akande (2004) 98 AJIL 407; van Alebeek, The
Immunity of States and their Officials in International Criminal Law and
International Human Rights Law (2008); Akande & Shah (2010)
21 EJIL 815.
124
Pinochet (No 3) [2000] 1 AC 147, 244, 261, 265, 268–9,
277; Gaddafi (2001) 125 ILR 490; Re Sharon & Yaron (2003) 127 ILR
110; Tatchellv Mugabe (2004) 136 ILR 572. Cf Bouterse (2000) 3 Ybk
IHL 677. Note the omission of any exception for international crimes
in Arrest Warrant, ICJ Reports 2002 p 3, 25.
125
Ibid, 20–1, 24 (noted in Yang (2002) 61 CLJ 242).
126
Arrest Warrant, ICJ Reports 2002 p 3, 21.
127
Re Mofaz (2004) 128 ILR 709.
128
Re Bo Xilai (2005) 128 ILR 713.
129
Mutual Assistance in Criminal Matters, ICJ Reports 2008 p 177, 243–
4. Also: Bat v Investigating Judge of the German Federal Court [2011]
EWHC 2029 (Admin), §§61–2.
130
E.g. Bouterse (2000) 3 Ybk IHL 677; Lozano v Italy (2008) Case No
31171/2008, ILDC 1085 (IT 2008); IDI Res, Naples/I (2009), Art 3(1); IDI
(2009) 73 Ann de I’Inst 3.
131
E.g. Zappalà (2001) 12 EJIL 595; Cassese (2002) 13 EJIL 853; Wirth
(2003) 13 EJIL 877.
132
For commentary on Pinochet (No 3): Denza (1999)
48 ICLQ 949; Chinkin (1999) 93 AJIL 703; Fox (1999) 48 ICLQ 687; van
Alebeek (2000) 71 BY 29; McLachlan (2002) 51 ICLQ 959. See also Bat
v Investigating Judge of the German Federal Court [2011] EWHC 2029
(Admin), in which immunity was denied.
133
Pinochet (No 3) [2000] 1 AC 147, 266–7, 277–8; Jones v Saudi
Arabia [2007] 1 AC 270, 286.
134
E.g. International Military Tribunal (Nuremberg), Judgment and
Sentences (1947) 41 AJIL 172, 221; Prosecutor v Blaški? (1997) 110 ILR
607, 710; Arrest Warrant, ICJ Reports 2002 p 3, 25; Prosecutor v
Taylor (2004) 128 ILR 239, 264. Further: e.g. ICTY Statute, SC Res 827
(1993), Art 7(2); ICC Statute, Art 27.
135
Akande (2004) 98 AJIL 407, 417; O’Keefe (2011) 24 Cam RIA 334,
345–50.
136
137
ICC Statute, Art 27.
Note the AU’s public opposition to the denial of immunities in the
case of Omar Al-Bashir: AU Assembly Decision 245 (XIII), 3 July 2009;
AU Assembly Decision 296 (XV), 27 July 2010; AU Assembly Decision
334 (XVI), 31 January 2011; AU Assembly Decision 366 (XVII), 1 July
2011. Further: O’Keefe (2011) 24 Cam RIA 334, 340.
138
Prosecutor v Omar Al Bashir, ICC-02/05–01/09, Pre-Trial Chamber,
Decision on the Prosecution’s Application for a Warrant of Arrest against
Omar Hassan Ahmad Al Bashir, 4 March 2009, §§41–5 (noted
by Ssenyonjo (2010) 59 ICLQ 205). Also: Warrant of Arrest for Muammar
Mohammed Abu Minyar Gaddafi, ICC-01/11, Pre-Trial Chamber I, 27
June 2011. On international criminal jurisdiction see chapter 30.
139
State Immunity Act 1978, s2(7); Aziz v Republic of Yemen [2005]
EWCA Civ 745, §48. Also: Donegal International Ltd v Republic of
Zambia [2007] EWHC 197.
140
State Immunity Act 1978, s2(1)–(3); European Convention, Arts 2–3;
UN Convention, Arts 7–8. Also: FSIA, 28 USC §§1605(a)(1), 1610(a)(1).
141
Pleading non-justiciability or forum non conveniens will not constitute
such a step: Kuwait Airways Corporation v Iraqi Airways Co [1995] 1
Lloyd’s Rep 25 (aff’d in Kuwait Airways Corporation v Iraqi Airways
Co [1995] 1 WLR 1147). See further chapter 3.
142
Mighellv Sultan of Johore [1894] 1 QB 149; Duff Development Co Ltd
v Government of Kelantan [1924] AC 797; Kahan v Pakistan
Federation [1951] 2 KB 1003.
143
State Immunity Act 1978, s9; Svenska Petroleum Exploration AB v
Republic of Lithuania (No 2) [2007] QB 886. Cf DRC v FG Hemisphere
Associates LLC, Hong Kong Court of Final Appeal, Judgment of 8 June
2011.
144
State Immunity Act 1978, s2(2). Note the limitations in UN
Convention, Art 17.
145
State Immunity Act 1978, s13(3); UN Convention, Art 20. Cf the
broad clauses in A Company v Republic of X [1990] 2 Lloyd’s Rep
570; Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan [2002]
EWCA Civ 1643.
146
Generally: Crawford (1981) 75 AJIL 820; ILC Ybk 1991/II(2), 13, 55–
9; Ostrander (2004) 22 Berkeley JIL 541; Stewart (2005) 99 AJIL 194,
206–7; Reinisch (2006) 17 EJIL 803; Fox (2nd edn, 2008) 599–662; Fox
(2009) 125 LQR 544; Yang (2012) ch 9.
147
E.g. in Germany v Italy (Judgment of 3 February 2012, §113) the
Court held that the ‘rules of customary international law governing
immunity from enforcement and those governing jurisdictional immunity
(understood strictosensu as the right of a State not to be the subject of
judicial proceedings in the courts of another State) are distinct, and must
be applied separately’.
148
Yang (2012) 398–400.
149
Philippine Embassy Bank Account (1977) 65 ILR 146; NML Capital
Ltd v Republic of Argentina [2011] 3 WLR 273, §29. Further: Crawford
(1981) 75 AJIL 820, esp 838–9, 860–6.
150
See the decision of the ICTY Appeals Chamber in Prosecutor v
Blaški? (1997) 110 ILR 607, 707–13 (Objection to the Issue
of Subpoenae Duces Tecum).
151
An example of such an attempt is the registration of a legal charge
on Villa Vigoni, German state property, by Italian authorities, which was
considered in Germany v Italy and held to constitute a violation by Italy of
its obligation to respect the immunity owed to Germany (§§109–20).
152
Reinisch (2006) 17 EJIL 803, 835. See also the European
Convention, Arts 23 and 26. For domestic provisions see e.g. UK: State
Immunity Act 1978, s13 and Civil Jurisdiction and Judgments Act 1982,
s31; US: FSIA, 28 USC §§1609–11.
153
Arts 18(a), 19(a); Fox (2nd edn, 2008) 630. Domestic regimes differ
over whether waiver must be express or can be implied: Ostrander
(2004) 22 Berkeley JIL 541, 548–52.
154
Art 20; further: Crawford (1981) 75 AJIL 820, 860–1.
155
E.g. Fox (2nd edn, 2008) 600–4.
156
Arts 18(b), 19(b); see Reinisch (2006) 17 EJIL 803, 820–1.
157
Art 19(c). Cf UK State Immunity Act 1978, s13(4): ‘property which is
for the time being or is intended for use for commercial purposes’; US:
FSIA, 28 USC §1610(a): ‘property in the United States of a foreign state,
…used for a commercial activity in the United States’.
158
These are: (a) property, including any bank account, which is used or
intended for use in the performance of the functions of the diplomatic
activities of the state (including consular activities, special missions, and
so forth); (b) property of a military character; (c) property of the central
bank or other monetary authority of the state; (d) property forming part of
the cultural heritage of the state or part of its archives and not placed or
intended to be placed on sale; and (e) property forming part of an
exhibition of objects of scientific, cultural, or historical interest and not
placed or intended to be placed on sale. For comment: Reinisch (2006)
17 EJIL 803, 823–34; Fox (2nd edn, 2008) 634–51.
159
Art 19(c); further: Fox (2nd edn, 2008) 631–4. The ILC Draft Articles
were more closely based on the controversial version of the ‘nexus
requirement’ articulated in the US legislation, requiring a link between the
property and the underlying claim in the proceeding. For comparative
analysis: Ostrander (2004) 22 Berkeley JIL 541, 557–
61; ReinischReinisch (2006) 17 EJIL 803, 822–3; Sun (2010) 9 Chin
JIL 699.
160
Generally: Reinisch (2006) 17 EJIL 803; Fox (2nd edn, 2008) 600–1.
161
Yang (2012) 401–2.
162
Abbott v South Africa (1992) 113 ILR 411, 422.
163
Asian-African Legal Consultative Committee Report, The Immunity of
States in Respect of Commercial Transactions, Third Session, Colombo,
1960.
164
State Immunity Act 1979 (as revised in 1985) (Singapore); State
Immunity Ordinance 1981 (Pakistan); Foreign Sovereign Immunity Act
1981 (South Africa). Note also Law of the People’s Republic of China on
the Immunity of the Property of Foreign Central Banks from Judicial
Compulsory Measures 2005 (PRC).
165
Rizaeff Frères v Soviet Mercantile Fleet (1927) 40 ILR
84; Matsuyama v Republic of China (1928) 4 ILR 168; Jackson v
People’s Republic of China, 794 F.2d 1490 (1986). See further Qi (2008)
7 Chin JIL 307.
166
166
Tokyo Sanyo Boeki Co Ltd v Pakistan, 21 July 2006,
60(6) Minshu 2542. Translated: (2006) 49 JAIL 144. Noted: Jones (2006)
100 AJIL 908; Yokomizo (2008) 51 JYIL 485.
167
E.g. Treaty of Trade and Navigation between the Union of Soviet
Socialist Republics and the People’s Republic of China, 25 July 1958,
152 UNTS 1958, Annex, Art 4.
168
DRC v FG Hemisphere Associates LLC, Hong Kong Court of Final
Appeal, Judgment of 8 June 2011 (provisional judgment finalized 8
September 2011).
169
Ibid, §§202, 211, 222–6. See further China’s position in Morris v
People’s Republic of China, 478 F.Supp 2d 561 (2007).
170
Brohmer, State Immunity and the Violation of Human
Rights (1997); Bianchi (1999) 10 EJIL 237; Fox (2005)
121 LQR 353; McGregor (2006) 55 ICLQ 437; Parlett [2006] EHRLR 49;
Fox [2006] EHRLR 142; McGregor (2007) 18 EJIL 903; van Alebeek
(2008); Wright (2010) 30 OJLS 143.
171
ILC Ybk 1999/II(2), 172.
172
Al-Adsani v UK (2001) 123 ILR 24; Kalogeropoulou v Greece (2002)
129 ILR 537; Bouzari v Islamic Republic of Iran (2004) 128 ILR
586; Fang v Jiang Zemin (2006) 141 ILR 702; Jones v Saudi
Arabia [2007] 1 AC 270; Zhang v Zemin (2010) 141 ILR 542. Also: Saudi
Arabia v Nelson, 507 US 349 (1993); Samantar v Yousuf, 130 S.Ct 2278
(2010); Germany v Italy, Judgment of 3 February 2012.
173
4 November 1950, ETS 5. See Al-Adsani v UK (2001) 123 ILR
24; Kalogeropoulou v Greece (2002) 129 ILR 537.
174
Jones v Saudi Arabia [2007] 1 AC 270, 286, 290, 293, 300, 303–4.
175
Ibid, 288–9, 293. Also: Al-Adsani v UK (2001) 123 ILR 24, §§61,
66; Kalogeropoulou v Greece (2002) 129 ILR 537, 546–7; Bouzari v
Islamic Republic of Iran (2004) 128 ILR 586, 604–6; Fang v Jiang
Zemin (2006) 141 ILR 702; Zhang v Zemin (2010) 141 ILR 542, 551–3.
176
Fox (2nd edn, 2008) 151 (cited in Jones v Saudi Arabia [2007] 1 AC
270, 288–9, 293).
177
177
Germany v Italy, Judgment of 3 February 2012, §93.
178
Jones v Saudi Arabia [2007] 1 AC 270, 293.
179
Distomo Massacre (2000) 129 ILR 513, 516; Ferrini v Federal
Republic of Germany (2004) 128 ILR 658. Further: Gattini (2005)
3 JICJ 224; Yang (2006) 3 NZYIL 131; O’Keefe (2011) 44 Vand JTL 999.
Part VIII Nationality and Related Concepts
(p. 509) 23 The Relations of Nationality
1. Introduction
(A) The Doctrine of the Freedom of States in Matters of
Nationality1
It is widely thought that states have general freedom of action in matters
of nationality. For example in Nationality Decrees Issued in Tunis and
Morocco the Permanent Court said:
The question whether a certain matter is or is not solely within the jurisdiction of a State
is an essentially relative question; it depends upon the development of international
relations. Thus, in the present state of international law, questions of nationality are, in
the opinion of this Court, in principle within this reserved domain.2
Or as ILC Special Rapporteur Manley Hudson put it, ‘[i]n principle,
questions of nationality fall within the domestic jurisdiction of each state’.3
There are compelling objections of principle to the doctrine of the
complete freedom of states in the present context. Before these are
considered it is necessary to recall the significance of nationality in the
law. First a state whose national has suffered an injury caused by an
internationally wrongful act of another state may exercise diplomatic
protection.4 Secondly, numerous duties of states in relation to war and
neutrality, resting for the most part on customary law, are framed in terms
of the acts or
References
(p. 510) omissions by nationals which states should prevent and, in some
cases, punish. Thirdly, aliens on the territory of a state produce a
complex of legal relations consequent on their status of non-nationals.
Governmental acts may give rise to questions of international
responsibility when they affect aliens or their property. Aliens may be
expelled for sufficient cause and their home state is bound to receive
them. Many states will not extradite their nationals. Fourthly, nationality
provides a regular basis for the exercise of civil and criminal jurisdiction
and this even in respect of acts committed abroad (see chapter 21).
(B) The Structural Problem
Nationality involves the assignment of persons to states, and regarded in
this way resembles the law relating to territorial sovereignty.5 National law
prescribes the extent of the territory of a state, but this prescription does
not preclude an international forum from deciding questions of title in its
own way, using criteria of international law. A sovereignty in principle
unlimited by the existence of other states is ridiculous. For instance, as
regards the delimitation of the territorial sea, the Court in AngloNorwegian Fisheries allowed that in regard to rugged coasts the coastal
state is in the best position to appraise the local conditions dictating the
selection of baselines, but the Court did not support complete
autonomy.6 The conferral of nationality as a status is in this respect akin
to a process of delimitation.
It is important to avoid relying on abstract statements purporting to
establish the boundaries of the reserved domain.7 Everything depends
on how a particular issue arises. Nationality is not confined either to the
reserved domain or the realm of state relations: in principle it has two
aspects, either of which may be dominant depending on the facts and
type of dispute. The approach of the International Court
in Nottebohm would seem to be perfectly logical in this respect. The
Court said:
It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the
rules relating to the acquisition of its nationality, and to confer that nationality by
naturalization granted by its own organs in accordance with that legislation. It is not
necessary to determine whether international law imposes any limitations on its freedom
of decision in this domain…Nationality serves above all to determine that the person
upon whom it is conferred enjoys the rights and is bound by the obligations which the law
of the State in question grants to or imposes on its nationals. This is implied in the wider
concept that nationality is within the domestic jurisdiction of the State. But the issue
which the Court must decide is not one which pertains to the legal system of
Liechtenstein. It does not depend on the law
References
(p. 511) or on the decision of Liechtenstein whether that State is entitled to exercise its
protection…To exercise protection, to apply to the Court, is to place oneself on the plane
of international law. It is international law which determines whether a State is entitled to
exercise protection and to seise the Court.8
Similarly, Article 3 of the European Convention on Nationality of 1997
provides:
Each State shall determine under its own law who are its nationals. This law shall be
accepted by other States in so far as it is consistent with applicable international
conventions, customary international law and principles of law generally recognised with
regard to nationality.9
(C) Common Criteria for Nationality10
The two main principles on which nationality has traditionally been based
are descent from a national (ius sanguinis) and birth within state territory
(ius soli). More recent developments have included giving equal status to
men and women in the determination of nationality, and providing
reinforced guarantees against statelessness, both trends underwritten by
multilateral treaties.11 Except for the presumption against statelessness
(where the iussoliapplies in case of doubt), it is incorrect to regard the
two principles as mutually exclusive: in varying degrees the law of a large
number of states rests on both.12 A common special stipulation is that
children born to non-nationals who are members of diplomatic and
consular missions do not thereby acquire the nationality of the receiving
state.13
The Harvard Research draft refers to ‘territory or a place assimilated
thereto’, and states have generally applied the principle of the ius soli to
birth on ships and aircraft registered under the flag.14 Where apparent
conflict may arise, as in the case of birth on a foreign ship in territorial
waters, it seems clear that the child does not in principle acquire ipso
facto the nationality of the littoral state.15
References
(p. 512) The position as regards naturalization is stated as follows by
Weis:
Naturalisation in the narrower sense may be defined as the
grant of nationality to an alien by a formal act, on an application
made for the specific purpose by the alien…It is generally
recognised as a mode of acquiring nationality. The conditions to
be complied with for the grant of naturalisation vary from country
to country, but residence for a certain period of time would seem
to be a fairly universal requisite.16
Hudson remarks: ‘[n]aturalization must be based on an explicit voluntary
act of the individual or of a person acting on his behalf ’.17 Some jurists
have concluded that prolonged residence is a precondition for
naturalization. But in regard to voluntary naturalization two points must be
borne in mind. First, the voluntary nature of the act supplements other
social and residential links. Not only is the act voluntary but it is specific:
it has that very objective. The element of deliberate association of
individual and state is important and should rank with birth and descent,
not to mention marriage, legitimation, and adoption. Secondly, while it is
true that a considerable number of states allow naturalization on easy
terms, the legislation often presents such relaxed conditions as available
exceptionally.
Nationality ex necessitate iuris is a convenient notion to analyse a further
situation. It is not in all respects satisfactory, since acquisition by
marriage, legitimation, and adoption might also be so described.
However, the cases to be mentioned are sufficiently clear to justify the
concept. For example, there is in the legislation of many countries a
provision that a child of parents unknown is presumed to have the
nationality of the state where the child is found. In a great many instances
it is provided that the rule applies to children born to parents of unknown
nationality or who are stateless. The rule as to foundlings appears in the
Convention on Certain Questions relating to the Conflict of Nationality
Laws, Article 14,18 and in the 1961 Convention on the Reduction of
Statelesness, Article 2.19
(D) Legal Status of the ‘General Principles’
Some at least of the principles considered above are generally
recognized as far as the laws of the various states are concerned. But
Weis is very cautious in assessing this material in terms of state practice:
Concordance of municipal law does not yet create customary
international law; a universal consensus of opinion of States is
equally necessary. It is erroneous to attempt to establish rules of
international law by methods of comparative law, or even to
declare that rules of municipal law of different States which
show a certain degree of uniformity are rules of international
law.20
References
(p. 513) This is unexceptionable insofar as the reversal of the statement
would result in a proposition much too dogmatic. But Weis
underestimates the significance of legislation as evidence of the opinio of
states. In the case of the territorial sea, the evidence of state practice
available to the ILC was chiefly in the form of legislation, and the
comments of governments concentrated on their own legislation.
It might be said that, particularly in the field of nationality, the
necessary opinioiuris is lacking; but insistence on clear evidence of this
may produce capricious results. The fact is that municipal law
overwhelmingly rests on significant links between the individual and the
state. Such lack of uniformity as there is in nationality laws is explicable
not in terms of a lack of opinio iuris, but by reference to the fact that
inevitably municipal law allocates natonality in the first place, and also to
the occurrence of numerous permutations and hence possible points of
conflict in legislation on a subject-matter so mobile and complex. But in
spheres where conflict on the international plane is easily foreseeable,
the rules are there to meet the case.
Thus the conclusions of the Court in Nottebohm are not particularly
novel. Aft er considering the evidence for the doctrine of the real or
effective link,21 the judgment proceeds:
According to the practice of States, to arbitral and judicial decisions and to the opinions
of writers, nationality is a legal bond having as its basis a social fact of attachment, a
genuine connection of existence, interests and sentiments, together with the existence of
reciprocal rights and duties. It may be said to constitute the juridical expression of the
fact that the individual upon whom it is conferred, either directly by the law or as the
result of an act of the authorities, is in fact more closely connected with the population of
the State conferring nationality than with that of any other State. Conferred by a State, it
only entitles that State to exercise protection vis-à-vis another State, if it constitutes a
translation into juridical terms of the individual’s connection with the State which has
made him its national.22
2. The Effective Link Principle and Nottebohm
(A) Precursors of Nottebohm
Seen in its proper perspective, the decision in Nottebohm is a reflection
of a fundamental concept long present in the materials concerning
nationality on the international plane. The doctrine of the effective link
had already been recognized for some time in continental literature23 and
the decisions of some national courts.24 That was
References
(p. 514) commonly in connection with dual nationality, but the particular
context does not obscure its role as a general principle with a variety of
applications.
In its reply to the Preparatory Committee of the Hague Codification
Conference the German government declared that ‘a State has no
power…to confer its nationality on all the inhabitants of another State or
on all foreigners entering its territory…if the State confers its nationality
on the subjects of other States without their request, when the persons
concerned are not attached to it by any particular bond, as, for instance,
origin, domicile or birth, the States concerned will not be bound to
recognize such naturalization’.25 The legislation of states makes general
use of residence, domicile, immigration with an intent to remain
permanently, and membership of ethnic groups associated with the state
territory, as connecting factors. International law has rested on the same
principles in dealing with the situations where a state has no nationality
legislation or where certain parts of the population fall outside the scope
of such legislation. The principle of effective link may be seen to underlie
much of the practice on state succession and to support the concept
of ressortissant found frequently in treaties.26
(B) The Decision and its Critics
In Nottebohm Liechtenstein claimed damages in respect of the acts of
the government of Guatemala in arresting, detaining, expelling, and
refusing to readmit Nottebohm, and in seizing and retaining his property
without compensation.27 Guatemala asked the Court to declare the claim
inadmissible, in part ‘because Liechtenstein had failed to prove that
Nottebohm…properly acquired Liechtenstein nationality in accordance
with the law of that Principality’; because anyway that law could not be
regarded as ‘in conformity with international law’; and because he
appeared ‘in any event not to have lost, or not validly to have lost, his
German nationality’. In the final submissions, inadmissibility was also
based on ‘the ground that M. Nottebohm appears to have solicited
Liechtenstein nationality fraudulently, that is to say, with the sole object of
acquiring the status of a neutral national before returning to Guatemala,
and without any genuine intention to establish a durable link, excluding
German nationality, between the Principality and himself ’.
In its judgment the Court regarded the plea relating to Nottebohm’s
nationality as fundamental. The issue was one of admissibility and the
Court observed:
In order to decide upon the admissibility of the Application, the Court must ascertain
whether the nationality conferred on Nottebohm by Liechtenstein by means of a
References
(p. 515) naturalization which took place in the circumstances which have been
described, can be validly invoked as against Guatemala, whether it bestows upon
Liechtenstein a sufficient title to the exercise of protection in respect of Nottebohm as
against Guatemala…what is involved is not recognition [of acquisition of Liechtenstein
nationality] for all purposes but merely for the purposes of the admissibility of the
Application, and,…secondly, that what is involved is not recognition by all States but only
by Guatemala.28
In the event, having applied the doctrine of the effective link to the facts,
the Court held the claim inadmissible. Dissenting judges29 and
critics30 have pointed out that Guatemala had not argued the case on the
basis that there was no effective link, and also that the precise ratio of the
decision was the question of opposability as against Guatemala. This is
true, but the effect of such formal arguments in limiting the significance of
the judgment is negligible. The tendency to look for precise grounds for
decision is a standard judicial technique, and few jurists seriously believe
that, apart from cases of treaty interpretation, the pronouncements of the
Court can be placed in quarantine by formal devices.31 In any case, the
fact that admissibility was the issue does not affect the general
significance of the decision. As the Court said: ‘[t]o exercise protection, to
apply to the Court, is to place oneself on the plane of international law. It
is international law which determines whether a State is entitled to
exercise protection and to seise the Court’.32 The Court did not base its
decision on estoppel as against Liechtenstein, but focused on the
existence or not of a right of protection, an issue which necessarily
affects states in general and not just the parties.33
To those who regard the Court’s approach as a novelty,34 the inadequacy
of its review of state practice is a source of disquiet. But, first, the Court is
usually somewhat oracular in its announcement of rules of customary
law; this does not mean the relevant materials were not duly assessed.
Secondly, the Court’s somewhat varied collection of propositions and
references to previous practice reads not as a survey but rather as an
attempt at further and better particulars as to the logical necessity of the
general principle for which the Court was contending. The relevant
section of the judgment commences well before the ‘survey of materials’,
and the burden of the section as a whole is that, to settle issues on the
plane of international law, principles have to be applied apart from the
rules of national law.35 The major point is made on the basis of a ‘general
principle of international law’ and not on the basis of a customary rule of
the usual sort. Thirdly, critics of the judgment seek materials which
support the ‘link’ theory explicitly as a specific rule. Not all the materials
support such a rule, but there
References
(p. 516) is much material which supports the general principle. Moreover
there was very little on the international plane which expressly denied the
effective link doctrine, and the incidental rejection of it in Salem36 was
regarded by contemporaries as a novelty.37
38
39
Judge Read38 and others39 have also contended that the Court relied
irrelevantly on the principles adopted by arbitral tribunals in dealing with
cases of double nationality,40 since the facts of Nottebohm did not
present this problem: Nottebohm either had Liechtenstein nationality or
none. But the principle of effectiveness is not restricted to cases of dual
nationality. If the principle exists it applies to the Nottebohm permutation
also.
In terms of the application of the principle to the facts, Nottebohm was
German by birth and was still a German national when he applied for
naturalization in Liechtenstein in October 1939. He had left Germany in
1905, although he maintained business connections there. As a
consequence of naturalization he lost his German nationality.41 The Court
decided that the effective nationality was not that of Liechtenstein (but
without characterizing the links with Guatemala in terms of effective
nationality): it found ‘the absence of any bond of attachment between
Nottebohm and Liechtenstein and, on the other hand, the existence of a
long-standing and close connection between him and Guatemala, a link
which his naturalization in no way weakened’.42
The Court did not consider whether an absence of connection when the
nationality was originally acquired can be cured by later events. However,
while in 1955 Nottebohn’s effective nationality was that of Liechtenstein,
when the main acts complained of occurred it was not: it is doubtful, to
say the least, if aft er suffering a wrong a national can then take on
another nationality and, after a lapse of time, call on the new state to
espouse the claim against the state of former nationality.43
As to the implications of the Nottebohm judgment in the realm of policy,
critics have concentrated on the severance of diplomatic protection and
nationality.44 The practical result of the decision is seen to be a narrowing
of the ambit of diplomatic protection. In fact in the vast number of cases
effective nationality matches formal nationality.45 Long-resident refugees
are an important source of problems, and it would seem likely that the
link doctrine is more helpful here than reference to national laws. The
latter method leaves the refugee stateless or links him or her to a
community which has proved repugnant or been abandonded.
References
(p. 517) The UN Convention on the Reduction of Statelessness of
196146 contains detailed provisions relying on various criteria of factual
connection and evidence of allegiance. The 1961 Conference also
adopted a resolution recommending ‘that persons who are stateless de
facto should as far as possible be treated as stateless de jure to enable
them to acquire an effective nationality’.47 Weis remarks that the
convention and recommendation ‘clearly reflect the importance which is
attached to an increasing degree to effectiveness of nationality’.48
(C) The ILC’s Work on Diplomatic Protection
In its work on diplomatic protection the ILC took a narrow view
of Nottebohm’s implications. Article 4 of the ILC Articles on Diplomatic
Protection of 2006 reads as follows:
State of nationality of a natural person
For the purposes of the diplomatic protection of a natural person, a State of nationality
means a State whose nationality that person has acquired, in accordance with the law of
that State, by birth, descent, naturalization, succession of States, or in any other manner,
not inconsistent with international law.
The commentary elaborates:
Draft article 4 does not require a State to prove an effective or genuine link between itself
and its national, along the lines suggested in the Nottebohm case, as an additional factor
for the exercise of diplomatic protection, even where the national possesses only one
nationality. Despite divergent views as to the interpretation of the case, the Commission
took the view that there were certain factors that served to limit Nottebohm to the facts of
the case in question, particularly the fact that the ties between Mr. Nottebohm and
Liechtenstein…were ‘extremely tenuous’ compared with the close ties between Mr.
Nottebohm and Guatemala…for a period of over 34 years, which led the International
Court of Justice to repeatedly assert that Liechtenstein was ‘not entitled to extend its
protection to Nottebohm vis-à-vis Guatemala’. This suggests that the Court did not intend
to expound a general rule applicable to all States but only a relative rule according to
which a State in Liechtenstein’s position was required to show a genuine link between
itself and Mr. Nottebohm in order to permit it to claim on his behalf against Guatemala
with whom he had extremely close ties. Moreover, it is necessary to be mindful of the
fact that if the genuine link requirement proposed by Nottebohm was strictly applied it
would exclude millions of persons from the benefit of diplomatic protection…49
References
(p. 518) The use of the double negative in draft Article 4 (‘not
inconsistent’) is intended to show that the burden of proving that
nationality was acquired in violation of international law rests upon the
state which disputes the nationality of the injured person.50 This is said to
follow from the proposition that the state conferring nationality must be
given a ‘margin of appreciation’;51 correspondingly there is a presumption
in favour of the validity of the conferral of nationality.52 It would follow in
any event on the basis of the maxim actori incumbit probatio.
A factor not to be overlooked in discussions of Nottebohm was that the
case involved a putative enemy alien. Nottebohm acquired the nationality
of Liechtenstein, a neutral state, with a view to avoiding the risk of
becoming an enemy alien if Guatemala entered the Second World War.53
3. The Application of Rules of International Law
(A) The Limits of State Authority in the Matter of
Nationality
If rules of international law are to work effectively or at all, there must be
limitations on the powers of individual states to treat persons as their
nationals. Some of these limitations must now be considered.
It may happen that a state has not adopted any nationality laws on the
modern pattern. Although such cases are rare,54 examples of the
absence of nationality legislation arise from the creation of new states. By
definition they must possess a population which is their own. In a
decision on the status of former Palestine citizens55prior to the enactment
of the Israeli Nationality Law of 1952, a judge of the District Court of TelAviv observed:
So long as no law has been enacted providing otherwise, my view is that every individual
who, on the date of the establishment of the State of Israel was resident in the territory
which today constitutes the State of Israel, is also a national of Israel. Any other view
must lead to
References
(p. 519) the absurd result of a State without nationals—a phenomenon the existence of
which has not yet been observed.56
If a new state, relying on the absence of a municipal law, tried to deport a
part of its permanent population, it would be acting in clear breach of its
obligations and would be internationally responsible.
Another situation concerns persons outside the scope of national
legislation. The legislation of a number of states has categorized the
population into those with a higher status, usually designated ‘citizens’,
and others. In the case of the UK, the position is that the inhabitants of
dependencies, whatever their internal status under the British Nationality
Act 1981, are considered to have the status of national for purposes of
international law.57 US law has the category ‘“non-citizen”
nationals’.58 The necessity for assignment of nationality where a
deliberate denial of citizenship occurs is apparent. In an arbitral award
the status of the Cayuga Indians, who had migrated from the US to
Canada, was established on the basis of factual connection.59 They were
held to have become British nationals, and the assumption was that, for
purposes of international law, they had previously been attached to the
US.60 In Kahane (Successor)v Parisi and Austrian State the tribunal in
substance regarded Romanian Jews as Romanian nationals, since
Romania, while withholding citizenship, did not consider them to be
stateless.61 However, the main point of the decision was to establish the
meaning of the term ressortissant in the Treaty of St Germain.62
(B) State Responsibility and the Doctrine of the Genuine
Link
States cannot plead their internal law in justification of international
wrongs,63 and they may be held responsible for conditions on their
territory which constitute a breach of their international
obligations.64However, many important duties of a specific character are
prescribed by reference to nationals of a state. For example there is a
duty to admit nationals expelled from other states and, by way of
corollary, a duty not to expel
References
(p. 520) nationals. Yet obviously ad hoc denationalization would provide a
ready means of evading these duties. In appropriate circumstances
responsibility would be established for the breach of duty if it were shown
that the withdrawal of nationality was itself a part of the wrongful conduct,
facilitating the result.65 Again, states could avoid rules governing the
treatment of aliens if they could at their discretion impose nationality on
aliens resident in or passing through state territory, however brief their
stay. Similar considerations apply to the law of belligerent
occupation66 and the law of neutrality.
The principles needed to solve this type of problem are simple enough if,
on the facts of the case, the manipulation of the law of nationality is part
and parcel of the wrongful conduct. However, it is possible to postulate a
general principle of genuine link relating to the causa for conferment of
nationality (and the converse for deprivation), a principle distinguishable
from that of effective link. Significantly enough, authors,67with support
from state practice and the jurisprudence of international
tribunals,68 have often stated the rule that a diplomatic claim cannot be
validly presented if it is based on a nationality which has been
fraudulently acquired. Admittedly the rule is often formulated with the acts
of the individual in mind, but in principle it is applicable to fraud on the
part of a state. In Nottebohm Guatemala contended that Liechtenstein
had acted fraudulently in granting nationality to Nottebohm, and further,
that Nottebohm himself acted fraudulently in applying for and obtaining
the certificate of naturalization.69 The Court did not address these
arguments explicitly, but, in adverting to Nottebohm’s motive of acquiring
neutral status,70 the Court accepted the substance of the argument: in
this context the doctrine of genuine link, in the narrow sense, and the
broad concept of effective link were brought into close relation.
In applying the principle of genuine link, two considerations are relevant.
In the first place, there is a presumption of the validity of an act of
naturalization, since acts of governments are presumed to have been
performed in good faith.71 Secondly, this is reinforced by the concept of
nationality as a status, since an act of conferment is not to be invalidated
except in very clear cases.72
(C) Nationality by Estoppel
In many cases where the basic facts concerning the individual are
ambiguous, the conduct of governments may provide the answer.
Express declarations and admissions by
References
(p. 521) diplomatic representatives may create an estoppel. However,
acts of administration of an incidental or routine nature, especially in the
absence of any actual or apprehended dispute, may not have this effect.
In Nottebohm Liechtenstein argued that Guatemala had recognized his
naturalization on the basis of the entry of a visa in his Liechtenstein
passport and official acts relating to the control of aliens. The Court
observed:
All of these acts have reference to the control of aliens in Guatemala and not to the
exercise of diplomatic protection. When Nottebohm thus presented himself before the
Guatemalan authorities, the latter had before them a private individual: there did not thus
come into being any relationship between governments. There was nothing in all this to
show that Guatemala then recognized that the naturalization conferred upon Nottebohm
gave Liechtenstein any title to the exercise of protection.73
Admissions by the parties in the face of a court will normally be relied
upon in matters of nationality.74 In some cases the tribunal has been
prepared to rely on the conduct of governments in the absence of any
declaration. In Hendry the Mexican–US General Claims Commission held
that Mexico was estopped from denying Hendry’s American nationality by
reason of its having discharged him from employment because he was
an American.75However, in Flegenheimer the Italian–US Conciliation
Commission rejected an Italian argument that the claim was inadmissible
because at the date of the acts complained of Flegenheimer’s apparent
nationality was German, since he had used a German passport in
dealings with the Italian authorities. This argument failed on the facts, but
the Commission noted ‘that the doctrine of apparent nationality cannot be
considered as accepted by the Law of Nations’.76
The issue was confronted in an important decision of the Eritrea Ethiopia
Claims Commission (EECC) in 2004.77 The case concerned expulsion
and deprivation of property of a large number of persons of Eritrean
origin who continued to live in Ethiopia after the separation of Eritrea in
1993 and who were still resident there when war broke out in 1998.
Numbers of them had voted in the April 1993 Referendum on Eritrean
independence (voting in which was limited by law to ‘Eritrean citizens’).
But they continued to exercise civil and political rights as Ethiopian
nationals, until their denationalization and expulsion. The EECC held that
in the special circumstances they were dual nationals by estoppel—and
this despite the fact that the law of neither state allowed dual nationality.
[T]he Commission is not…persuaded by Eritrea’s argument that registration as an
Eritrean national in order to participate in the 1993 Referendum was without important
legal consequences. The governing entity issuing those cards was not yet formally
recognized as independent or as a member of the United Nations, but it exercised
effective and independent control over a defined territory and a permanent population
and carried on effective and
References
(p. 522) substantial relations with the external world, particularly in economic matters. In
all these respects, it reflected the characteristics of a State in international law. On the
other hand, neither is the Commission persuaded by Ethiopia’s argument that the
continued issuance of Ethiopian passports and other official documents was not
evidence of continued Ethiopian nationality. Passports in particular contain the issuing
State’s formal representation to other States that the bearer is its national. The decision
to issue such a document, intended to be presented to and relied upon by friendly
foreign States, is an internationally significant act, not a casual courtesy…
…nationality is ultimately a legal status. Taking into account the unusual transitional
circumstances associated with the creation of the new State of Eritrea and both Parties’
conduct before and after the 1993 Referendum, the Commission concludes that those
who qualified to participate in the Referendum in fact acquired dual nationality. They
became citizens of the new State of Eritrea pursuant to Eritrea’s Proclamation No.
78
21/1992, but at the same time, Ethiopia continued to regard them as its own nationals.
In so holding the EECC was influenced by an Agreed Minute of 1996
which, whether or not it was a treaty, postponed a process by which
‘Eritreans who have so far been enjoying Ethiopian citizenship’ should be
made to elect one or other nationality.79
(D) Compulsory Change of Nationality
Existing practice and jurisprudence do not support a general rule that
deprivation of nationality is unlawful.80On the other hand, Article 15(2) of
the Universal Declaration of Human Rights of 1948 stipulates that
persons may not be ‘arbitrarily deprived’ of their nationality, and although
81
this has no equivalent in the International Covenant,81 there is some
basis for holding it to be a rule of customary international law.
The EECC’s Civilian Claims decision of 2004 is relevant here. As to the
applicable law it said:
[T]he Commission also recognizes that international law limits States’ power to deprive
persons of their nationality. In this regard, the Commission attaches particular importance
to the principle expressed in Article 15, paragraph 2, of the Universal Declaration of
Human Rights, that ‘no one shall be arbitrarily deprived of his nationality.’ In assessing
whether deprivation of nationality was arbitrary, the Commission considered several
factors, including whether the action had a basis in law; whether it resulted in persons
being rendered stateless; and whether there were legitimate reasons for it to be taken
given the totality of the circumstances.82
References
(p. 523) In applying these criteria the EECC distinguished between
differently situated groups. On the one hand, as to persons considered a
security risk, it held:
Deprivation of nationality is a serious matter with important and lasting consequences for
those affected. In principle, it should follow procedures in which affected persons are
adequately informed regarding the proceedings, can present their cases to an objective
decision maker, and can seek objective outside review. Ethiopia’s process often fell short
of this…Notwithstanding the limitations of the process, the record also shows that
Ethiopia faced an exceptional situation. It was at war with Eritrea. Thousands of
Ethiopians with personal and ethnic ties to Eritrea had taken steps to acquire Eritrean
nationality. Some of these participated in groups that supported the Eritrean Government
and often acted on its behalf. In response, Ethiopia devised and implemented a system
applying reasonable criteria to identify individual dual nationals thought to pose threats to
its wartime security. Given the exceptional wartime circumstances, the Commission finds
that the loss of Ethiopian nationality after being identified through this process was not
arbitrary and contrary to international law.83
But as to a group of registered dual nationals the Commission held:
Whatever the numbers affected, there was no evidence indicating that the dual nationals
in this group threatened Ethiopian security or suggesting other reasons for taking away
their Ethiopian nationality. There was no process to identify individuals warranting special
consideration and no apparent possibility of review or appeal. Considering that rights to
such benefits as land ownership and business licenses, as well as passports and other
travel documents were at stake, the Commission finds that this wide-scale deprivation of
Ethiopian nationality of persons remaining in Ethiopia was, under the circumstances,
arbitrary and contrary to international law.84
Similar analyses were applied to other affected sub-groups.85
The analogue of deprivation of nationality is provided by the cases
described as compulsory change of nationality and ‘collective
naturalization’. The whole pattern of rules and the practice of states is
based on the circumstance that states set the conditions under which
nationality is acquired and lost. The law concerned may call for
expressions of will on the part of individuals directly, or indirectly, by their
establishing residence or service in the armed forces, but the conditions
are set by the law. Nevertheless tribunals have occasionally stated in
terms that international law does not permit compulsory change of
nationality.86
The US, the UK, France, and other states have often protested against
‘forced naturalization provisions’, as they are sometimes called, in the
laws of various Latin American states.87 This practice is bound up with
the rule that international law does
References
(p. 524) not permit states to impose their nationality on aliens resident
abroad.88 But the practice is again better seen as yet another aspect of
the effective link principle,89 according to which nationality is not to be
conferred on nationals of other states unless the new nationality is based
upon adequate links. Even an unlawful deprivation of nationality may
become irreversible if the individual voluntarily becomes permanently
resident elsewhere at a stage when resumption of the original citizenship
would have been possible.90
(E) Nationality of the European Union91
The 1992 Treaty on European Union created the concept of European
citizenship with Article 8(1):
Citizenship of the Union is hereby established. Every person holding the nationality of a
Member State shall be a citizen of the Union.92
This marked the first time in the history of the Westphalian political order
that a citizenship design beyond the nation state emerged, challenging
the exclusivity of national citizenship.93 Most commentators initially saw
European citizenship as a purely symbolic concept with limited content,
premised on the pre-existing Community law rights of free movement and
non-discrimination on grounds of nationality.94 The concept experienced
a subsequent transformation in the hands of the European Court of
References
(p. 525) Justice. Union citizenship has been used by the Court as a
means to expand the material and personal scope of the Treaty to
encompass situations where the reliance on free movement might seem
artificial.95
EU citizenship is a derivative or dependent citizenship. A person is a
citizen of the Union only if he or she is a citizen of a member state. EU
member states attached Declaration No 2 to the Maastricht Treaty stating
that ‘the question whether an individual possesses the nationality of the
Member State shall be settled solely by reference to the national law of
the Member State concerned’.96 In Micheletti the European Court of
Justice confirmed that determination of nationality falls within the
exclusive competence of the member states, but added that member
states have to have ‘due regard to Community law’.97
Micheletti has been interpreted as a first hint at the development of a new
approach. In Rottman v Freistaat Bayern, the Court held that nationality
laws of the member states are within the scope of EU law and that EU
law has to be taken into account when member states exercise their
powers in the sphere of nationality. The European Court of Justice further
asserted that it is the final arbiter in disputes arising in this context.98 This
decision has been described as a ‘serious blow to one of the last
bastions of state sovereignty’.99
4. A Functional Approach to Nationality
Despite the continued reiteration of the proposition that nationality
depends exclusively on municipal law, it is common for legislation and
judicial decisions to create functional nationality100 whereby aspects of
national law are applied on the basis of allegiance, residence or other
connections. There seems to be general acquiescence in this splitting up
of the legal content of nationality for particular purposes. Thus legislation
in many countries has defined enemy alien status in functional terms
without depending on the technical nationality of the country in question.
The control test has
References
(p. 526) been widely applied to corporations and goods in determining
enemy character.101 The use of factual tests occurs equally widely when
the issue is one of the law of war and neutrality.102
Moreover, in the context of treaties, rules are often functional rather than
declaratory as to general status. Thus in IMCO the issue was the
interpretation of the phrase ‘the largest ship-owning nations’ in Article 28
of the Convention for the Establishment of the Inter-Governmental
Maritime Consultative Organization, and the Advisory Opinion delivered
rested on an inquiry into the legislative history of the provision and usage
under other maritime conventions.103 The Geneva Convention on the
Status of Refugees of 1951 provides that a refugee must be treated, for
the purpose of access to the courts and related matters, as if a national
of the country where the refugee is habitually resident.104 The Vienna
Convention on Diplomatic Relations restricts the conferment of privileges
and immunities in the case of members of the mission if they are
nationals of the receiving state or ‘permanently resident’ there.105 There
is thus an interplay between nationality as a core concept of international
and national law and elements associated with the effective link which
provide a functional overlay. Taken together these ingredients avoid the
extremity of solipsism implied in the mantra that nationality of individuals
falls within the domestic jurisdiction of each state.
References
Footnotes:
1
Generally on nationality: Fitzmaurice (1957) 92 Hague Recueil 191;
van Panhuys, The Role of Nationality in International
Law (1959); Brownlie (1963) 39 BY 284; Weis, Nationality and
Statelessness in International Law (2nd edn, 1979); Rezek (1986) 198
Hague Recueil 333; Bederman (1993) 42 ICLQ 119; Donner, The
Regulation of Nationality in International Law (2nd edn,
1994); Rubenstein & Adler (2000) 7 Indiana JGLS 519; Muchmore (2005)
26 Imm & Nat LR 327; Bosniak, The Citizen and the Alien (2006); van
Waas, Nationality Matters (2008); Sloane (2009) 50 Harv ILJ 1;
Trevisanut, ‘Nationality Cases before International Courts and Tribunals’
(2011) MPEPIL.
2
(1923) PCIJ Ser B No 4, 24.
3
ILC Ybk 1952/II, 3, 7.
4
ILC Articles on Diplomatic Protection, GAOR, 61st Sess, Supp No 10,
A/61/10; Amerasinghe, Diplomatic Protection (2008). For the nationality
of claims rule in the law of diplomatic protection: chapter 31.
5
Parry, 1 Nationality and Citizenship Laws of the Commonwealth and
the Republic of Ireland (1957) 17, regards the analogy of territory as ‘very
attractive’, but remarks that it should not be pushed too far: ibid, 21.
However, for the purpose of comment on the possible results of a certain
type of doctrine the analogy would seem to be valid.
6
Fisheries (UK v Norway), ICJ Reports 1951 p 116, 132.
Further: Fitzmaurice (1953) 30 BY 1, 11. Cf Asylum (Colombia/Peru), ICJ
Reports 1950 p 274, 278.
7
De Visscher, Theory and Reality in Public International Law (4th edn,
1968) 229–31.
8
Nottebohm(Liechtenstein v Guatemala), ICJ Reports 1955 p 4, 20.
9
6 November 1997, ETS No 166. There are 20 states parties. Also
Convention Concerning Certain Questions Relating to the Conflict of
Nationality Laws, 12 April 1930, 179 LNTS 89, Art 1.
10
For earlier studies: Sandifer (1935) 29 AJIL 248; Survey of the
problem of multiple nationality prepared by the Secretariat,
ILC Ybk 1954/II, 52, 63. Also Kemp (2002) 4 JEMIE i; Bosniak (2002)
42 Va JIL 979.
11
For the equality of men and women in nationality matters: e.g.
Convention on the Nationality of Married Women, 20 February 1957, 309
UNTS 65; CEDAW, 18 December 1979, 1249 UNTS 13, Art 9(2);
CEDAW Committee, General Recommendation No 21 (13th session,
1994) §6. For protection against statelessness: UN Convention on the
Reduction of Statelessness, 30 August 1961, 989 UNTS 175. Also van
Waas (2008) 31.
12
The Harvard draft provided that states must choose between the two
principles: (1929) 23 AJIL Supp 1, 27 (Art 3). But there is no legal basis
for such a stipulation (cf Weis (2nd edn, 1979) 95); hybrid sets of
nationality laws have not attracted criticism as such, provided they
address the question of statelessness.
13
VCDR, Optional Protocol concerning Acquisition of Nationality, 18
April 1961, 500 UNTS 223, Art II; Johnson (1961) 10 ICLQ 597;
ILC Ybk 1958/II, 89, 101; VCCR, Optional Protocol concerning
Acquisition of Nationality, 24 April 1963, 596 UNTS 469, Art II;
ILC Ybk 1961/II, 92, 122.
14
(1932) 26 AJIL Supp 1. Generally: Córdova, ILC Ybk 1953/II 167, 177
(Art IV).
15
UN Convention on the Reduction of Statelessness, Art 3 (test of flag
of registration); van Waas (2008) 31.
16
Weis (2nd edn, 1979) 99.
17
ILC Ybk 1952/II, 3, 8. His rubric is: ‘[n]aturalization in the narrower
sense. Option’. In his terminology naturalization means every nationality
acquired subsequent to birth.
18
12 April 1930, 179 LNTS 89.
19
30 August 1961, 989 UNTS 175.
20
Weis (2nd edn, 1979) 96, 99.
21
ICJ Reports 1955 p 4, 22, and for the Liechtenstein law: ibid, 13–14.
22
ICJ Reports 1955 p 4, 23.
23
Basdevant (1909) 5 Rev crit DIPriv 41, 59.
24
Magalhais v Fernandes (1936) 10 ILR 290. Also German
Nationality (1952) 19 ILR 319.
25
25
League of Nations, Conference for the Codification of International
Law, 1 Bases for Discussion Drawn up for the Conference by the
Preparatory Committee (1929) 13.
26
Weis (2nd edn, 1979) 7; Kahane(Successor)v Parisi and Austrian
State(1929) 5 ILR 213.
27
ICJ Reports 1955 p 4. For contemporary comment: Mervyn Jones
(1956) 5 ICLQ 230; Loewenfeld (1956) 42 GST 5; de Visscher (1956)
60 RGDIP 238; Bastid (1956) 45 Rev crit DIPriv 607; Maury (1958)
23 ZaöRV 515; Kunz (1960) 54 AJIL 536; Lauterpacht, 4 International
Law (1978) 5.
28
ICJ Reports 1955 p 4, 16. Also ibid, 20.
29
ICJ Reports 1955 p 4, 30 (Judge Klaestad, diss), 35 (Judge Read,
diss), 53 (Judge ad hoc Guggenheim, diss).
30
E.g. Mervyn Jones (1956) 5 ICLQ 230, 238; Kunz (1960) 54 AJ 536,
541, 552; Weis (2nd edn, 1979) 176.
31
Cf the effect of Anglo-Norwegian Fisheries, ICJ Reports 1951 p 116.
32
ICJ Reports 1955 p 4, 20.
33
Cf Kunz (1960) 54 AJIL 536, 564.
34
Jones (1956) 5 ICLQ 230, 240; Kunz (1960) 54 AJIL 536, 552, 555.
35
ICJ Reports 1955 p 4, 20.
36
(1932) 6 ILR 188.
37
ibid, 192, note by Lauterpacht; Jones (1956) 5 ICLQ 230, 242.
38
ICJ Reports 1955 p 4, 41.
39
ibid, 59 (Judge ad hoc Guggenheim, diss). Also Kunz (1960)
54 AJIL 536, 556.
40
E.g. Mergé (1955) 22 ILR 443, 450.
41
ICJ Reports 1955 p 4, 55 (Judge ad hoc Guggenheim, diss).
42
ibid, 25.
43
For the continuous nationality rule as eventually formulated: ILC
Articles on Diplomatic Protection 2006, Art 5, and further: chapter 31.
44
ICJ Reports 1955 p 4, 46 (Judge Read, diss).
45
Cf ILC Articles on Diplomatic Protection, commentary to Art 4, §5.
46
30 August 1961, 989 UNTS 175.
47
UN Conference on the Elimination or Reduction of Future
Statelessness, Resolutions, 29 August 1961, A/CONF.9/14/Add.1, Res I.
48
Weis (1962) 11 ICLQ 1073, 1087. For diplomatic protection of
refugees: chapter 31.
49
Commentary to Art 4, §5: ILC Report 2006, GAOR, 61st Session,
Supp No 10, A/61/10, 32–3. Also Dugard’s First Report on Diplomatic
Protection, ILC, 52nd Session: ILC Ybk 2000/II(1), 228.
50
Commentary to draft Art 4, §7.
51
ibid, citing the advisory opinion of the IACtHR in Proposed
Amendments to the Naturalization Provisions of the Political Constitution
of Costa Rica, IACtHR OC-4/84, 19 January 1984, §§58–63.
52
Commentary to draft Art 4, §7.
53
In Nottebohm Rolin for Guatemala argued that, because Nottebohm’s
aim was to acquire neutral status by naturalization, there was no genuine
link. This point was taken by the Court at the end of its judgment, ICJ
Reports 1955 p 4, 26. The dissenting judges regarded the question as a
part of the issues concerning abuse of rights and fraud: ICJ Reports 1955
p 4, 32 (Judge Klaestad, diss), 48 (Judge Read, diss), 64 (Judge ad hoc
Guggenheim, diss).
54
Cf Parry (1957) 355.
55
Palestine citizenship had ceased to exist: Hussein v Governor of Acre
Prison (1950) 17 ILR 112.
56
AB v MB (1951) 17 ILR 110. However, the same court in another case
assumed the absence of nationality until the Nationality Law: Oseri v
Oseri (1952) 17 ILR 111 (and cf Shifris (1950) ibid, 110). Also Rosenne
(1954) 81 JDI 4, 6.
57
Generally: Fransman, British Nationality Law (3rd edn, 2011).
58
8 USC §1542.
59
59
Cayuga Indians (Great Britain) v United States (1926) 6 RIAA 173,
177.
60
Also Rothmann v Austria and Hungary (1928) 4 ILR 254; Margulies v
Austria and Hungary (1929) 6 RIAA 279. Both cases turn on the
interpretation of a US statute. Further: Mathison (1903) 9 RIAA 485,
490; Valeriani v Amuna Bekri Sichera (1934) 8 ILR 283; Logan v
Styres (1959) 27 ILR 239 (as to the Six Nations Indians of Ontario).
61
(1929) 5 ILR 213.
62
Principal Allied & Associated Powers–Austria, Treaty of St Germainen-Laye, 10 September 1919, 226 CTS 8, Arts 249, 256.
63
ARSIWA, Arts 3, 32.
64
Kahane(Successor)v Parisiand Austrian State (1929) 5 ILR 213.
65
Weis (2nd edn, 1979) 123; also Williams (1927) 8 BY 45, 59; Jennings
(1939) 20 BY 98, 112.
66
Thus the German ordinance of 1942, which authorized the grant of
nationality to certain classes of the population in territories occupied by
Germany was not opposable to third states as it was contrary to
international law: ICJ Reports 1955 p 4, 54 (Judge ad hoc Guggenheim,
diss).
67
E.g. Weis (2nd edn, 1979) 218.
68
E.g. Salem (1932) 6 ILR 188; Flegenheimer (1958) 25 ILR 91, 98.
69
ICJ Reports 1955 p 4, 26.
70
ibid, 26.
71
On proof of nationality ex lege in the face of declarations by the
executive that legal requirements have been fulfilled see Soufraki v
United Arab Emirates, Decision on Annulment, 5 June 2007, §§60–78,
72
Jennings (1967) 121 Hague Recueil 323, 459.
73
ICJ Reports 1955 p 4, 18. Cf ibid, 48 (Judge Read, diss).
74
Expropriated Religious Properties (1920) 1 RIAA 7, 46.
75
(1930) 4 RIAA 616, 616.
76
76
(1958) 25 ILR 91, 151.
77
Civilians Claims, Eritrea’s Claims 15, 16, 23& 27–32 (2004) 135 ILR
374.
78
ibid, 394–5.
79
ibid, 395–6, and on the status of the 1996 Agreed Minute: ibid,
396 (§53).
80
Conclusions of Hudson, ILC Ybk 1952/II, 3, 10; Weis (2nd edn, 1979)
125. Also Convention on the Reduction of Statelessness, Art 8; ICERD,
21 December 1965, 660 UNTS 195, Art 5(d)(iii). Nationality of adults is
not addressed in the ICCPR.
81
ICCPR, 23 March 1976, 999 UNTS 171. A discriminatory
denationalization would infringe Art 26. Further: chapter 29.
82
Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32 (2004) 135 ILR
374, 397–8.
83
ibid, 400.
84
ibid, 401.
85
ibid, 401–2.
86
In re Rau (1930) 6 ILR 251, 251.
87
Hudson, ILC Ybk 1952/II, 3, 8; Weis (2nd edn, 1979) 102. It is
important to determine the exact bases of such protests. The US was
concerned with the principle of voluntary expatriation. Other states were
in substance reserving their rights and at the same time intimating that
these matters were not within the discretion of the territorial sovereign.
The British view seems to have been that conferment of nationality on the
basis of a number of years’ residence, provided that due notice is given
and a declaration of a contrary intention may be made, was lawful:
indeed in such circumstances it is probably not involuntary. See ibid, 104;
5 BDIL 28, 250.
88
Morgenstern, note in (1948) 15 ILR 211.
89
Cf Makarov (1949) 74 Hague Recueil 269, 299.
90
90
Oppenheimer v Cattermole [1976] AC 249; Mann (1973)
89 LQR 194; Mann (1976–77) 48 BY 1, 43, 50. Cf Loss of Nationality
(Germany) (1965) 45 ILR 353. Further: Lauterpacht, 3 International
Law (1977) 383.
91
Generally on EU nationality: Kostakopoulou, Citizenship, Identity and
Immigration in the European Union (2001); Barber (2002)
27 ELR 241; Cygan & Szyszczak (2006) 55 ICLQ 977; Jacobs (2007)
13 ELJ 591; Kostakopoulou (2007) 13 ELJ 623; Shaw, The
Transformation of Citizenship in the European Union (2007); Somek
(2007) 32 ELR 787; Spaventa (2008) 45 CMLR 13; Kochenov (2009)
15 Col J Eur L 169;
92
29 July 1992, OJEU C 191.
93
Kostakopoulou (2007) 13 ELJ 623, 624–5.
94
EU citizenship confers rights: (a) to move and reside freely within the
territory of the member states; (b) to vote and to stand as candidates in
elections to the European Parliament and in municipal election in their
state of residence; (c) to enjoy the protection of the diplomatic and
consular authorities of any member state on the same conditions as the
nationals of that state (if the state of which the person is a national does
not have representation in that country); (d) to petition the institutions and
advisory bodies of the Union in any of the Treaty languages and to obtain
a reply in the same language: TFEU (former Treaty of Rome, as renamed
by the Treaty of Lisbon), 25 March 1957, OJEU C 83/47, Art 20. For the
initial scholarly response to EU citizenship: e.g. Everson, in Shaw & More
(eds), The New Dynamics of European Union (1995); d’Oliveira, in Rosas
& Antola (eds), A Citizens’ Europe (1995); Lehning, in Lehning & Weale
(eds), Citizenship, Democracy and Justice in the New Europe (1997)
175; Downes, in Bellamy & Warleigh (eds), Citizenship and Governance
in the European Union (2001) 93.
95
E.g. Case C-148/02, Garcia Avello [2003] ECR I-11613; Case C224/98, D’Hoop [2002] ECR I-6191; C-209/03, Bidar [2005] ECR I- 2119;
Case C-403/03, Schempp [2005] ECR I-6421; Case C-192/05, TasHagen and Tas [2006] ECR I-10541.
96
97
1992 OJEU C 191, 98.
97
Case C-369/90, Micheletti and Others v Delegacion del Gobierno en
Catanbria [1992] ECR I-4329.
98
Case C-135/08, Rottman v Freistaat Bayern, Judgment of 2 March
2010, available at www.curia.europa.eu/, §§42, 45–6. For commentary:
e.g. Mantu (2010 ) 24 JIANL 182; D’Oliveira (2011) 7 ECLR 138; De
Groot & Seling (2011) 7 ECLR 150.
99
Mantu (2010) 24 JIANL 182, 191.
100
A different type of functionalism may occur when a forum is prepared
to disregard dual nationality where policy demands a choice. Note also
the provision in the staff regulations and rules of the UN which make it
mandatory for the Secretary-General to select a single nationality for the
purpose of the staff rules: Julhiard v Secretary-General of the United
Nations (1955) 22 ILR 809.
101
Daimler v Continental Tyre Co [1916] 2 AC 307; Contomichalos v
Drossos (1937) 8 ILR 314. Further: Watts (1957) 33 BY 52, 78.
102
For early examples: The Athinai (1942) 12 ILR 386; The
Nordmeer (1946) 13 ILR 401; The Arsia (1949) 16 ILR 577; The Inginer
N Vlassopol (1951) 18 ILR 725; The Nyugat (1956) 24 ILR 916; The SS
Lea Lott (1959) 28 ILR 652. Cf The Unitas [1950] 2 All ER 219 on the
conclusiveness of a vessel’s flag and limitations thereon. On the
evolution of the law of neutrality: Schindler, in Delissen & Tanja
(eds), Humanitarian Law of Armed Conflict (1991) 367.
103
Constitution of the Maritime Safety Committee of the InterGovernmental Maritime Consultative Organization, ICJ Reports 1960 p
149, 171; and Simmonds (1963) 12 ICLQ 56.
104
Geneva Convention Relating to the Status of Refugees, 28 July
1951, 189 UNTS 150, Art 16(3); Grundul v Bryner (1957) 24 ILR 483.
The same provision occurs in the Convention Relating to the Status of
Stateless Persons, 28 September 1954, 360 UNTS 117, Art 16(3).
105
18 April 1961, 500 UNTS 95, Arts 8, 33(2)(a), 38.
(p. 527) 24 Nationality of Corporations and
Assets
1. General Aspects
The assignment of persons (including corporations) and property to
states, in particular for the purposes of diplomatic protection, is normally
approached through the concept of nationality. Yet the problem must be
solved in a variety of contexts, including jurisdiction. It is suggested that
problems of jurisdiction can be solved on a satisfactory basis by the use
of the principle of genuine connection affirmed in Nottebohm.1 The need
for international law to have its own rules of nationality rather than simply
leaving nationality to be defined entirely by municipal law is apparent
when issues of nationality on the plane of international law are related to
corporations, ships, aircraft , and other assets, not to mention the assets
of international organizations.2
2. Nationality of Corporations3
The borrowing of a concept developed in relation to individuals is
awkward in some respects but is now well established. A major point of
distinction is the absence of domestic legislative provisions which assign
nationality to corporations: domestic nationality laws do not concern
themselves with corporations, and corporations laws
References
(p. 528) rarely deal with nationality. Nationality must be derived either
from the fact of incorporation, that is, creation as a legal person, within a
given system of domestic law, or from links to a particular state such as
the centre of administration (siège social) or the nationality of the natural
or legal persons that own or control the company.
Rules of municipal law may make use of the concept of nationality of
legal persons even without explicit treatment of the subject. Areas of
domestic law referring to the nationality of corporations include private
international law (conflict of laws), the law relating to trading with the
enemy, sanctions, and (in some jurisdictions) taxation.
In international law, many treaty provisions define ‘nationals’ to include
corporations for specified purposes. Treaty provisions may explicitly or
implicitly adopt the conflict of laws rule that the law of the place of
creation determines whether an association has legal personality. For the
purposes of a particular treaty, unincorporated associations—including
partnerships—may be assimilated to corporations. Public corporations
may also be included.4
In Barcelona Traction the Court affirmed that:
In allocating corporate entities to States for the purposes of diplomatic protection,
international law is based, but only to a limited extent, on an analogy with the rules
governing the nationality of individuals. The traditional rule attributes the right of
diplomatic protection of a corporate entity to the State under the laws of which it is
incorporated and in whose territory it has its registered office. These two criteria have
been confirmed by long practice and by numerous international instruments.5
Thus the Canadian nationality of the corporation was confirmed
notwithstanding its 75 per cent Belgian shareholding.6 In Diallo, the Court
relied on Barcelona Traction to conclude that despite the Guinean
nationality of Diallo as the sole shareholder in the two companies in
question, ‘the normal rule of nationality’ applied and that having regard to
their place of incorporation, ‘[t]he companies in question have Congolese
nationality’.7Thus under customary international law the nationality of a
corporation will normally be determined by its place of incorporation.
In Diallo the Court acknowledged that,
in contemporary international law, the protection of the rights of companies and the rights
of their shareholders, and the settlement of the associated disputes, are essentially
governed by bilateral or multilateral agreements for the protection of foreign investments,
such as the
References
(p. 529) treaties for the promotion and protection of foreign investments…and also by
contracts between States and foreign investors.8
Free trade agreements also create standards of treatment in relation to
‘nationals’, ‘companies’ or ‘enterprises’ of the contracting parties. The
North American Free Trade Agreement (NAFTA) contains the following
definitions:
enterprise means any entity constituted or organized under applicable law, whether or
not for profit, and whether privately-owned or governmentally-owned, including any
corporation, trust, partnership, sole proprietorship, joint venture or other association;
enterprise of a Party means an enterprise constituted or organized under the law of a
Party;…
person means a natural person or an enterprise;
person of a Party means a national, or an enterprise of a Party…
9
NAFTA allows investors to bring claims ‘on behalf of an enterprise of
another Party that is a juridical person that the investor owns or controls
directly or indirectly’.10 This permits derivative claims without deeming
corporations to have a nationality that they do not have.
Certain treaties concerned with the protection of investments employ
more complex formulations.11 Pursuant to Article 25(2)(b) of the
Convention on the Settlement of Investment Disputes, ‘national of
another Contracting State’ means:
any juridical person which had the nationality of a Contracting State other than the State
party to the dispute…and any juridical person which had the nationality of the
Contracting State party to the dispute on that date and which, because of foreign control,
the parties have agreed should be treated as a national of another Contracting State for
12
the purposes of this Convention.
The Treaty on the Functioning of the European Union provides in Article
54 that corporations under the law of a member state and having their
‘registered office’, ‘central administration’, or ‘principal place of business’
within the Union are assimilated, for the purposes of the chapter on the
right of establishment, to ‘natural persons who are nationals of Member
States’.13 For this purpose corporations include all legal persons whether
of public or private law other than non-profit-making bodies.
Bilateral treaties concerned with double taxation contain rules of
assignment which may invoke the concepts of nationality, residence or
fiscal domicile, while defining the
References
(p. 530) crucial points of contact. These are commonly management and
control.14 Air transport agreements may require that airlines acquiring a
foreign carrier permit satisfy a condition of substantial ownership and
effective control by nationals of the other contracting party.15 Important
provisions ascribing a national character to corporations and other
associations appear in peace treaties, agreements on reparation for war
losses, SC resolutions imposing sanctions,16 treaties of cession, and
agreements for compensation in case of nationalization and other events
causing loss to foreign interests on state territory. In Peter Pázmány
University the Permanent Court found that the University, as a legal
person under Hungarian law, was a Hungarian national for the purpose of
submitting a claim to restitution of property under Article 250 of the Treaty
of Trianon.17 Treaty provisions employ a variety of criteria including place
of creation, sometimes accompanied by a requirement to have
substantial business activities in that place, siège social,18 the national
source of actual control or effective management,19 and immediate or
ultimate ownership.
3. Nationality of Ships20
In maintaining a viable regime for common use of the high seas, the law
of the flag and the necessity for a ship to have a flag are paramount.
Historical opinion was strongly in favour of the unqualified freedom of
each state to determine for itself the conditions under which its nationality
could be conferred on vessels.21 This view of state competence suffers
from the faults considered in a wider setting in chapter 23. The act of
conferment of nationality (registration) is within the competence of states,
but
References
(p. 531) registration is only evidence of nationality, and valid registration
under the law of the flag state does not preclude an assessment of
nationality under international law. The Nottebohm principle applies
equally here. The UN Convention on the Law of the Sea of 1982 provides
in Article 91(1):
Every State shall fix the conditions for the grant of its nationality to ships, for the
registration of ships in its territory, and for the right to fly its flag. Ships have the
nationality of the State whose flag they are entitled to fly. There must exist a genuine link
between the State and the ship.22
Jennings has remarked that ‘the assumption that the “genuine link”
formula, invented for dealing with people, is capable of immediate
application to ships and aircraft , smacks of a disappointing naiveté’ and,
further, that ‘a provision which might seem to encourage governments to
make subjective decisions whether or not to recognize the nationality of
this aircraft or that vessel is clearly open to abuse and for that reason to
grave criticism’.23
Article 91(1) has met with criticism from partisans of the exclusive
competence of states to ascribe national character to vessels.24 The US
Department of State has argued that the requirement of a genuine link is
not a condition for recognition of the nationality of the ship but an
independent obligation to exercise effective jurisdiction and control over
ships once registered.25
Article 91(1) repeats most of Article 5 of the High Seas Convention of
1958.26 However, the duties of the flag state are enumerated separately
in Article 94. The general opinion is that the position remains the same,
with the opponents of the ‘genuine link’ un-appeased. The UN
Convention on Conditions for Registration of Ships adopted by a
diplomatic conference in 1986 seeks to impose precise modalities for the
effective exercise of jurisdiction and control by the flag state.27 The
convention has not yet entered into force as it lacks the requisite 40
ratifications.
In relation to ships’ crews, the ILC has affirmed the right of the state of
nationality of a ship’s crew to exercise diplomatic protection on their
behalf, while at the same time
References
(p. 532) acknowledging that the state of nationality of the ship also has a
right to seek redress on behalf of its crew.28
In M/V Saiga (No 2) the International Tribunal for the Law of the Sea
rejected an objection to admissibility based upon the absence of a
genuine link:
83. The conclusion of the Tribunal is that the purpose of the
provisions of the Convention on the need for a genuine link
between a ship and its flag State is to secure more effective
implementation of the duties of the flag State, and not to establish
criteria by reference to which the validity of the registration of ships
in a flag State may be challenged by other States.
84. This conclusion is not put into question by the United Nations
Convention on Conditions for Registration of Ships of 7 February
1986 invoked by Guinea. This Convention…sets out as one of its
principal objectives the strengthening of ‘the genuine link between
a State and ships flying its flag’. In any case, the Tribunal
observes that Guinea has not cited any provision in that
Convention which lends support to its contention that ‘a basic
condition for the registration of a ship is that also the owner or
operator of the ship is under the jurisdiction of the flag State’.29
In The Juno Trader30 the Tribunal found on the facts that there had been
no change in the flag state and that accordingly it had jurisdiction.
However, in a Joint Separate Opinion, Judges Mensah and Wolfrum
rejected the view that a change in the ownership of a ship resulted in the
automatic change of the flag of a ship:
The term ‘nationality’, when used in connection with ships, is merely shorthand for the
jurisdictional connection between a ship and a State. The State of nationality of the ship
is the flag State or the State whose flag the ship is entitled to fly; and the law of the flag
State is the law that governs the ship. The jurisdictional connection between a State and
a ship that is entitled to fly its flag results in a network of mutual rights and obligations, as
indicated in part in article 94 of the Convention. For example, granting the right to a ship
to fly its flag imposes on the flag State the obligation to effectively exercise its jurisdiction
and control in administrative, technical and social matters. In turn, the ship is obliged to
fully implement the relevant national laws of the State whose flag it is entitled to fly. All
States which have established ships’ registers provide for specific procedural and factual
requirements to be met before a ship is entered on their registers or is granted the right
to fly the flag of the particular State. Ships receive respective documents to prove that
they are entitled to fly a particular flag. Similarly, the laws of these States establish clear
procedures to be followed for ships to leave the register, including the conditions under
which a ship may lose the right to remain on the register.31
Treaties may contain specialized rules determining
nationality.32 The IMCO case concerned the constitution of the Maritime
Safety Committee of the IMCO (now the
References
(p. 533) IMO). The convention provided that ‘[t]he Maritime Safety
Committee shall consist of fourteen Members elected by the Assembly
from the Members, governments of those nations having an important
interest in maritime safety, of which not less than eight shall be the
largest ship-owning nations’.33 Panama and Liberia had not been elected
and they and other states contended that the proper test was registered
tonnage, not beneficial ownership. The Court found that the reference in
the convention was solely to registered tonnage. This conclusion
depended on the construction of the text and was assumed to be
consistent with the general purpose of the Convention. The Court thus
found it unnecessary to examine the argument that registration was
qualified by the requirement of a genuine link.34
US courts have refused to apply US law to the internal management of
vessels in American ports flying Honduran or Liberian flags despite their
close contacts with the US.35 This refusal to go behind the law of the flag
and the fact of registration was based in part upon the construction of the
relevant treaty and in part upon the general principle governing
jurisdiction over ships in port.
4. Other Rules of Allocation
(A) Nationality of Aircraft36
The Convention for the Regulation of Aerial Navigation of 1919,37 and
later the Chicago Convention of 1944,38provided that the nationality of
aircraft is governed by the state of registration. The former stipulated that
registration could only take place in the state of which the owners were
nationals; the latter merely forbids dual registration. Neither convention
applies in time of war, and the Chicago Convention does not apply to
state aircraft , that is, ‘aircraft used in military, customs and police
services’. The Tokyo Convention on Offences Committed on Board
Aircraft provides that the state of registration has jurisdiction over
offences and acts committed on board.39 These
References
(p. 534) provisions may be thought to support a doctrine of freedom in
conferring national status by registration, in contrast to UNCLOS Article
91.40 However, in the absence of flags of convenience in air traffic, it may
be that the issue was left on one side by the authors, the assumption
being that registration in practice depended on the existence of
substantial connections. In the absence of substantial connections the
state of registry will not be in a position to ensure that an aircraft is
operated in accordance with the Chicago Convention. However, the
application of a genuine link test is by no means straightforward and, as
in the case of naturalization of individuals, registration is itself a
presumptively valid and genuine connection of some
importance.41 Obviously the Nottebohm principle ought to apply to
aircraft as it does to ships. It must surely apply at the least to discover to
which state non-civil aircraft belong, but even where the Chicago
Convention applies, registration by one state may not preclude another
state from exercising diplomatic protection. In bilateral treaties the US
has reserved the right to refuse a carrier permit to an airline designated
by the other contracting party ‘in the event substantial ownership and
effective control of such airlines are not vested in nationals of the other
contracting party’.42
In principle, aircraft of joint operating agencies, for example, the
Scandinavian Airlines System, must be registered in one of the states
involved. However, in 1967 the ICAO Council adopted a resolution
requiring the constitution of a joint register in such cases for the purposes
of Article 77 of the Chicago Convention and the designation of a state as
recipient of representations from third states.43
(B) Nationality of Space Objects44
The Outer Space Treaty of 1967 does not employ the concept of
nationality in relation to objects launched into outer space.45 Article VIII
provides in part that the state of registration ‘shall retain jurisdiction and
control over such object, and over any
References
(p. 535) personnel thereof, while in outer space or on a celestial body’.
The Convention on Registration of Objects Launched into Outer Space
provides that the launching state shall maintain a register of space
objects.46 Each state of registry has a duty to furnish certain information
to the UN Secretary-General.
(C) State Property in General
Ownership in international law is normally seen either in terms of private
rights under national law, which may become the subject of diplomatic
protection and state responsibility, or in terms of territorial
sovereignty.47However, situations arise which call for a counterpart of
ownership on the international plane. This is the case for state ships,
aircraft, space vehicles, and national treasures.48 Many treaties confer or
refer to ‘property’ or ‘title’ without referring to the national law of
the situs or to any other local law.49 Thus the US agreed to lend a vessel
to the Philippines for five years, title to remain with the US and the
transferee having the right to place the vessel under its
flag.50 In Monetary Gold (1953),51 Sauser-Hall (sole arbitrator) referred in
his award to a concept of ‘patrimoine nationale’ which could extend to
gold functioning as a monetary reserve, although the gold did not belong
to the state concerned under its national law but to a private bank under
foreign control.
Issues of title under international law can also arise, even if sometimes
incidentally, in connection with the disposition of vessels taken in prize,
title to booty of war, the taking of reparation in kind, the effect of territorial
cession on public property in the territory concerned,52 and claims by the
victors of 1945 to German assets in neutral countries.53
References
Footnotes:
1
Nottebohm(Liechtenstein v Guatemala), ICJ Reports 1955 p 4, 23; and
see chapter 23.
2
On issues of diplomatic protection and admissibility of claims:
Amerasinghe, Diplomatic Protection (2008) ch 10; also chapter 31.
3
Generally: Jenks, in Friedmann (ed), Transnational Law in a Changing
Society (1972); Ijalave, The Extension of Corporate Personality in
International Law (1978); Lipson, Standing Guard: Protecting Foreign
Capital in the 19th and 20th Century (1985); SeidlHohenveldern, Corporations in and under International
Law (1987); Rahman (1988) 28 Indian JIL 222; Proceedings Fourth
Annual International Business Law Symposium: Multinational
Corporations and Cross Border Conflicts, Nationality, Veil Piercing and
Successor Liability (1995) 10 Florida JIL 221; Zerk, Multinational
Corporations and Corporate Social Responsibility (2006); Pannier, in
Ortino (ed), Nationality and Investment Treaty Claims (2007) 1;
Muchlinski, Regulating Multinationals (2008); Juratowitch (2010)
81 BY 281.
4
Certain German Interests in Polish Upper Silesia (1926) PCIJ Ser A No
6; Peter Pázmány University (1933) PCIJ Ser A/B No 61.
5
Barcelona Traction, Light and Power Company, Limited (Belgium v
Spain), Second Phase, ICJ Reports 1970 p 3, 42.
6
Ibid, 25.
7
Ahmadou Sadio Diallo (Guinea v Democratic Republic of theCongo),
Preliminary Objections, Judgment of 24 May 2007, §31. Cf Elettronica
Sicula SpA (ELSI) (US v Italy), ICJ Reports 1989 p 15, where a Chamber
of the Court upheld the admissibility of the claim of the national state of
the sole shareholder of a company registered in the respondent state on
the basis of the applicable 1948 Treaty of Friendship, Commerce and
Navigation between Italy and the US.
8
Diallo, Preliminary Objections, Judgment of 24 May 2007, §88.
9
17 December 1992, 32 ILM 289, Art 201.
10
10
NAFTA, Art 1117(1). In such cases restitution or damages shall be
made or paid to the enterprise: Art 1135(2).
11
Mann (1981) 52 BY 241, 242.
12
Washington Convention on the Settlement of Investment Disputes
between States and Nationals of Other States, 18 March 1965, 575
UNTS 160, Art 25(2)(b) (emphasis added). Also Energy Charter Treaty,
17 December 1994, 2080 UNTS 95, Art 1(7).
13
TFEU, 30 March 2010, OJEU C 83/47.
14
US Model Income Tax Convention, 20 September 1996, Art 3.
15
Aerolíneas Peruanas SA, Foreign Permit (1960) 31 ILR 416.
16
E.g. SC Res 1929 (2010) (Iran).
17
(1933) PCIJ Ser A/B No 61, 232. Also: German Interests(1926) PCIJ
Ser A No 7, 69–71; Flexi-Van Leasing, Inc v Iran (1986) 70 ILR 496; Ray
Go Wagner Equipment Company v Iran Express Terminal
Corporation (1983) 71 ILR 688, 690–3.
18
This concept of French law overlaps with residence and domicile.
Normally the siège social is the place where the administrative organs
operate and where general meetings are held. However, tribunals may
insist that the siège social should not be nominal and thus relate the test
to that of effective control. See Bakalian & Hadjithomas v Banque
Ottomane (1965) 47 ILR 216.
19
E.g. Yaung Chi Oo Trading v Myanmar (2003) 8 ICSID Reports 463,
473–8.
20
Especially: Watts (1957) 33 BY 52, 84; Meyers, The Nationality of
Ships (1967); Jennings (1967) 121 Hague Recueil 327, 460–5; Singh
(1962) 107 Hague Recueil 1, 38–64; Dupuy & Vignes, Traité du nouveau
droit de la mer (1985) 354–9; McConnell (1985) 16 JMLC 365; Churchill
(1991) 26 ETL 591; Anderson (1996) 21 Tul Mar LJ 139; Ready, Ship
Registration (3rd edn 1998); Jacobsson, in Nordquist & Mahmoudi
(eds), The Stockholm Declaration and Law on the Marine
Environment (2003); Kamto, in Coussirat-Coustère et al (eds), La mer et
son droit (2003); Witt, Obligations and Control of Flag States (2007);
König, ‘Flag of Ships’ (2009) MPEPIL.
21
21
Gidel, 1 Le droit international public de la mer (1932) 80; Harvard
Research (1935) 29 AJIL Supp 435, 518–19; Rienow, The Test of the
Nationality of a Merchant Vessel (1937) 218–19.
22
10 December 1982, 1833 UNTS 3, Art 91. Further: 9 Whiteman 7–17;
UNCLOS I, 1 Off Recs 78, 83, 85, 91, 108, 111–12; 4 Off
Recs 61ff; IMCO Pleadings (1960) 357–58 (Riphagen), 364–8
(Seyersted), 383 (Vallat); Jessup (1959) 59 Col LR 234, 256; Barcelona
Traction, Second Phase, ICJ Reports 1970 p 184, 186–9 (Judge Jessup).
23
Jennings (1967) 121 Hague Recueil 327, 463.
24
McDougal, Burke & Vlasic (1960) 54 AJIL 25; McDougal & Burke, The
Public Order of the Oceans (1962) 1008–140; Boczek, Flags of
Convenience (1962). The debate relates to the use of flags of
convenience by American interests in competition with European
shipping. Further on flags of convenience: OECD Study on Flags of
Convenience (1973) 4 JMLC 231; Sieke (1979) 73 AJIL 604;
Metaxas, Flags of Convenience (1985); Marti (1991) 15 Mar Policy 193;
FAO Code of Conduct for Responsible Fisheries 1995, available
at: www.ftp.fao.org/docrep/fao/005/v9878e/v9878e00.pdf;
OECD, Ownership and Control of Ships (2003); Treves (2004) 6 San
Diego ILJ 179; Ademuni-Odeke (2005) 36 ODIL 339; König, ‘Flags of
Convenience’ (2008) MPEPIL.
25
9 Whiteman 27, 29. For the contrary view: Recommendation 108,
General Conference of the ILO, 1958 (144:0–3); Meyers (1967) 225.
26
29 April 1958, 450 UNTS 82
27
7 February 1986, 26 ILM 1229. Wefers Bettink (1987) 18 NYIL 69.
28
ILC Draft Articles on Diplomatic Protection with Commentaries,
ILC Ybk 2006/II, 22, Art 18 with commentary, ibid, 90–4.
29
(1999) 120 ILR 179. The Tribunal also held that the evidence was not
sufficient to establish a genuine link.
30
(2004) 128 ILR 267.
31
Ibid, 307.
32
32
E.g. Treaty of Peace with Italy, 10 February 1947, 49 UNTS 3, Art
78(9)(c), Annex VI, Art 33.
33
Convention for Establishment of Inter-Governmental Maritime
Consultative Organization, 6 March 1948, 289 UNTS 3, Art 28(a).
34
Constitution of the Maritime Safety Committee of the InterGovernmental Maritime Consultative Organization, ICJ Reports 1960 p
150, 171.
35
McCulloch v Sociedad Nacional (1963) 34 ILR 51; Incres v
International Maritime Workers Union (1963) 34 ILR 66; United States v
Anchor Line Ltd, 232 F.Supp 379 (SDNY, 1964). Generally on the US
position : Greenpeace USA v Stone, 924 F.2d 175 (9th Cir, 1991); Equal
Employment Opportunity Commission v Arabian American Oil Co, 499
US 244 (1991).
36
Generally: Lambie, Universality versus Nationality of
Aircraft (1934); Fitzgerald (1964) 5 CYIL 191; Milde (1985) 10 Ann
ASL 133; Naveau, Godfroid & Frühling, Précis de droit aérien (2nd edn,
2006) ch 2; Wouters & Verhoeven, ‘State Aircraft ’ (2008) MPEPIL.
37
13 October 1919, 11 LNTS 173, Arts 5–10.
38
Convention on International Civil Aviation, 7 December 1944, 15
UNTS 296, Arts 17–21.
39
14 September 1963, 704 UNTS 220.
40
Makarov (1959) 48 Annde l’Inst 359. Cf Affaire F OABV (1958)
4 AFDI 282. UNCLOS, Art 91 states that ‘[e]very State shall fix the
conditions for the grant of its nationality to ships, for the registration of
ships in its territory, and for the right to fly its flag. Ships have the
nationality of the State whose flag they are entitled to fly. There must
exist a genuine link between the State and the ship’: 10 December 1982,
1833 UNTS 3.
41
Jennings (1967) 121 Hague Recueil 327, 460–6. Parties to the
Chicago Convention may be precluded from contesting nationality based
on registration: Cheng, The Law of International Air Transport (1962)
128–31.
42
43
Aerolíneas Peruanas SA, Foreign Permit (1960) 31 ILR 416.
43
9 Whiteman 383–90; Cheng (1966) 5 Ybk Air & Space Law 31; ILA,
Report of the 52nd Conference (1966) 228–86; ILA, Report of the 53rd
Conference (1968) 147–56.
44
McDougal, Lasswell & Vlasic, Law and Public Order in Space (1963)
513–87; Goedhuis (1963) 109 Hague Recueil, 257, 301–8; Lachs, The
Law of Outer Space (1972) 68–78; Fawcett, Outer Space (1984) 27–8;
Cheng, Studies in International Space Law (1997); Kayser, Launching
Space Objects (2001); Hole, Schmidt-Tedd & Schrogl (eds), Current
Issues in the Registration of Space Objects (2005); Lee (2006) 1 Space
Policy 42; Hobe, ‘Spacecraft, Satellites and Space Objects’
(2007) MPEPIL; Tronchetti, The Exploitation of Natural Resources of the
Moon and Other Celestial Bodies (2008). Also Outer Space Act 1986
(UK), ss1, 7, 13(1).
45
Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies, 27 January 1967, 610 UNTS 205.
46
GA Res 3235(XXIX), 12 November 1974, 1023 UNTS 15.
47
Generally: Staker (1987) 58 BY 151, 252.
48
Cambodian claim in Temple of Preah Vihear (Cambodia v Thailand),
ICJ Reports 1962 p 6. Further: Williams (1977) 15 CYIL 146, 172. Note
also the case of a sunken Soviet submarine (Rubin (1975) 69 AJIL 855)
and a Confederate warship (Roach (1991) 85 AJIL 381). Cf Wright
(2008–9) 33 Tul Mar LJ 285; Aznar Gómez (2010) 25 IJMCL 209.
49
Soviet–Swedish Agreement on Construction of Embassy Buildings, 27
March 1958, 428 UNTS 322. Also the contract between the International
Atomic Energy Agency, the US, and Pakistan for the transfer of enriched
uranium for a reactor, 19 October 1967, 425 UNTS 69.
50
Exchange of Notes constituting an Agreement relating to the Loan of a
Vessel to the Philippines, 4 October 1961, 433 UNTS 83.
51
(1953) 20 ILR 441, 469. Further: Lalive (1954)
58 RGDIP 438; Fawcett (1968) 123 Hague Recueil 215, 248–51.
Cf Monetary Gold Removed from Rome in 1943 (Italy v France, UK and
US), ICJ Reports 1954 p 19. Also Deutsche Amerikanische Petroleum
Gesellschaft Oil Tankers (1926) 2 RIAA 777, 795.
52
52
German Interests (1926) PCIJ Ser A No 7, 41; Peter Pázmány
University (1933) PCIJ Ser A/B No 61, 237; also chapter 19.
53
Mann (1957) 24 BY 239; Simpson (1958) 34 BY 374.
Part IX The Law of Responsibility
(p. 539) 25 The Conditions for International
Responsibility
1. Configuring the Law of Responsibility1
In international relations as in other social relations, the invasion of the
legal interest of one subject of the law by another creates responsibility in
a form and to an extent determined by the applicable legal system.
International responsibility is traditionally attributed to states as the major
subjects of international law, but it is a broader question inseparable from
legal personality in all its forms. As with the law of treaties, historically the
issue of responsibility of states was treated first, and the potential for
international organizations and individuals to make claims and to bear
responsibility on the international plane (to the extent it exists at all) has
been developed later and by analogy.
As also with the law of treaties, the law of responsibility has been largely
articulated through the work of the ILC, here in three texts, the ILC
Articles on Responsibility of States for Internationally Wrongful Acts of
2001 (ARSIWA),2 the ILC Articles on Diplomatic Protection of 2006,3 and
the ILC Draft Articles on Responsibility of International Organizations of
2011.4 In this chapter, the focus will be on state responsibility and on
ARSIWA.5
References
(p. 540) Following an intuition of Roberto Ago,6 in all three projects the
ILC focused on what he termed ‘secondary rules’, that is, the framework
rules of attribution, breach, excuses, reparation, and response to breach
(i.e. invocation)—as distinct from the primary obligations whose disregard
gives rise to responsibility. The distinction is no doubt somewhat artificial
—but any other course would have entailed a spelling out of the rights
and duties of states generally, and these vary indefinitely between states
depending on their treaty lists and general commitments.
Unlike the two Vienna Conventions of 1969 and 1986 on the law of
treaties, the ILC Articles have not (or not yet) been reduced to treaty
form. But even before 2001 and more especially since, they have been
much cited and have acquired increasing authority as an expression of
the customary law of state responsibility.7 This has led some authors and
governments to conclude that a convention is not needed, and that a
diplomatic conference could rupture the delicate equilibrium achieved by
ARSIWA.8 Others, however, would like to see certain articles, especially
those expressive of the idea of ‘multilateral responsibility’, reopened, a
process likely to be interminable (or terminal).
2. The Basis and Character of State
Responsibility
It is a general principle of international law that a breach of an
international obligation entails the responsibility of the state concerned.
Shortly, the law of responsibility is concerned with the incidence and
consequences of unlawful acts, and particularly the forms of reparation
for loss caused. However, the law may incidentally prescribe
compensation for the consequences of legal or ‘excusable’ acts, and it is
proper to consider this aspect in connection with responsibility in general.
(A) Origins
In the early modern period treaties laid down particular duties and
sometimes specified the liabilities and procedures to be followed in case
of breach. But the inconvenience of (p. 541) private reprisals,9 the
development of rules restricting forcible self-help, and the work of
international tribunals have contributed towards a concept of
responsibility more akin to that of national law. Of course the notions of
reparation and restitution in the train of unlawful acts had long been part
of the available stock of legal concepts in Europe, and the classical
writers referred to reparation and restitution in connection with unjust
war.10
(B) The Classification of International Wrongs
State responsibility is not based upon delict in the municipal sense, and
‘international responsibility’ relates both to breaches of treaty and to other
breaches of obligation. There is no harm in using the term ‘delict’ to
describe a breach of duty actionable by another legal person, but the
term must be understood broadly; the term ‘tort’, also sometimes
used,11 could mislead. The compendious term ‘international
responsibility’ is widely used and is least confusing.
In Spanish Zone of Morocco Judge Huber said: ‘[r]esponsibility is the
necessary corollary of a right. All rights of an international character
involve international responsibility. If the obligation in question is not met,
responsibility entails the duty to make reparation’.12 In Factory at
Chorzów (Jurisdiction), the Permanent Court stated that: ‘[i]t is a principle
of international law that the breach of an engagement involves an
obligation to make reparation in an adequate form. Reparation therefore
is the indispensable complement of a failure to apply a convention and
there is no necessity for this to be stated in the convention itself ’.13 This
was repeated with emphasis in Chorzów Factory(Indemnity):
It is a principle of international law, and even a general conception of law, that any
breach of an engagement involves an obligation to make reparation.…The Court has
already said that reparation is the indispensable complement of a failure to apply a
convention, and there is no necessity for this to be stated in the convention itself.14
Corfu Channel involved a finding that Albania was, by reason of its failure
to warn of the danger, liable for the consequences of mine-laying in its
territorial waters even though it had not laid the mines. The International
Court said: ‘[t]hese grave, omissions involve
References
(p. 542) the international responsibility of Albania [which] is responsible
under international law for the explosions which occurred…and for the
damage and loss of human life which resulted from them’.15
In Genocide (Bosnia and Herzegovina v Serbia and Montenegro), the
Court considered whether a violation of the Genocide Convention
entailed particular consequences for the breaching state:
The Court observes that the obligations in question in this case, arising from the terms of
the Convention, and the responsibilities of States that would arise from breach of such
obligations, are obligations and responsibilities under international law. They are not of a
criminal nature.16
These pronouncements show that there is no acceptance of a
contract/delict (tort) dichotomy, still less one between delicts and
international crimes of states.17 Rather there is a single undifferentiated
concept of responsibility, the key elements of which are the breach of an
obligation of the state by a person or body whose conduct is, in the
circumstances, attributable to the state.18 When requested to establish
the responsibility of Iran in US Diplomatic and Consular Staff in Tehran
(US v Iran), the Court formulated its task as follows:
First, it must determine how far, legally, the acts in question may be regarded as
imputable to the Iranian State. Secondly, it must consider their compatibility or
incompatibility with the obligations of Iran under treaties in force or under any other rules
of international law that may be applicable.19
In listing attribution and breach as the two elements of the internationally
wrongful act, ARSIWA Article 2 reflects a long-standing jurisprudence.20
3. Attribution to the State
(A) General Aspects
Every breach of duty on the part of states must arise by reason of the act
or omission of one or more organs or agents (although the 2001 Articles
eschew the
References
(p. 543) terminology of agency). The status of the individual actor is only
one factor in establishing attribution—in effect, a causal connection
between the corporate entity of the state and the harm done.
There is no need for state agents to be the direct perpetrators of the
unlawful act. In Corfu Channel Albania was held responsible for the
consequences of mine-laying in her territorial waters by reason of the
Albanian authorities’ knowledge and failure to warn of the presence of the
mines. In fact (though the Court did not say this), the mines were laid by
Yugoslavia. Similarly, a neutral state may be responsible for allowing
armed expeditions to be fitted out within its jurisdiction which
subsequently carry out belligerent operations against another
state.21 Depending on the obligation in question, failure to ensure
compliance may be attributed to the state even when the conduct was
that of private entities. In Canada—Dairy(21.5 II), the WTO Appellate
body observed that ‘irrespective of the role of private parties…the
obligations…remain obligations imposed on Canada…The question is
not whether one or more individual milk producers, efficient or not, are
selling CEM at a price above or below their individual costs of production.
The issue is whether Canada, on a national basis, has respected its
WTO obligations’.22 With these extensive reservations, attention may be
directed to the problems associated with particular categories of organs
and persons.
(B) State Organs
Pursuant to ARSIWA Article 4, ‘the conduct of any State organ shall be
considered an act of that State under international law’, regardless of the
character of that organ and whatever functions it exercises. This is in line
with established jurisprudence.23
(i) Executive and administration
Early arbitrations established the principle that governmental action or
omission by the executive gives rise to international responsibility. This
was most visible in the failure by states to provide security to foreigners
and their property. In Massey24 the US recovered $15,000 by reason of
the failure of the Mexican authorities to take adequate measures to
punish the killer of a US citizen working in Mexico. Commissioner Nielsen
stated:25
It is undoubtedly a sound general principle that, whenever misconduct on the part of
[persons in state service], whatever may be their particular status or rank under domestic
law,
References
(p. 544) results in the failure of a nation to perform its obligations under international law,
the nation must bear the responsibility for the wrongful acts of its servants.
Unreasonable acts of violence by police officers and a failure to take the
appropriate steps to punish the culprits will also give rise to
responsibility.26 In principle the distinction between higher and lower
officials has no significance in terms of responsibility.27
More recently, the situation has grown more complex with the assumption
by governments of functions of an economic and social character. On
occasions, governments act not by agents of the state but by delegating
governmental functions to para-statal entities. Companies with varying
degrees of governmental participation, as well as regulatory agencies
with varying degrees of independence, blur the usual public-private
distinction and demand a detailed examination of their function in order to
determine when their conduct is attributable to the state. ARSIWA tackles
the issue by providing an open formulation: under Article 5, entities not
formally state organs may still engage the responsibility of the latter when
‘empowered by the law of that State to exercise elements of the
governmental authority’ and so long as they are ‘acting in that capacity in
the particular instance’.
This formulation has been influential directly but also by analogy. In US—
Anti-Dumping and Countervailing Duties (China), a WTO Panel had
decided that a ‘public body’ for the purposes of the Agreement on
Subsidies and Countervailing Measures was ‘any entity controlled by a
government’, including a private corporation with more than 50 per cent
government ownership, irrespective of its functions.28 On appeal, the
Appellate Body recalled its earlier finding that ‘the essence of
government is that it enjoys the effective power to regulate, control, or
supervise individuals, or otherwise restrain their conduct, through the
exercise of lawful authority’; ‘this meaning is derived, in part, from the
functions performed by a government and, in part, from the government
having the powers and authority to perform those functions’.29 It went on
to reverse the finding of the Panel, providing a set of guidelines to
determine whether an entity is a public body which draw in part on
ARSIWA Article 5.30
Another topic of growing importance is the question of attribution for the
acts of entities not belonging to the state or acting under official
governmental authority but which hold enough links with the state that a
degree of control by the state can be envisaged. This is a difficult matter,
in particular regarding the assessment of evidence.
References
(p. 545) The International Court discussed the relevant jurisprudence
in Genocide (Bosnia and Herzegovina v Serbia and Montenegro). After
determining that the massacre at Srebrenica in July 1995 constituted the
crime of genocide within the meaning of the convention, the Court dealt
with the question whether this conduct was attributable to the
respondent. The Court said:
This question has in fact two aspects, which the Court must consider separately. First, it
should be ascertained whether the acts committed at Srebrenica were perpetrated by
organs of the Respondent, i.e., by persons or entities whose conduct is necessarily
attributable to it, because they are in fact the instruments of its action. Next, if the
preceding question is answered in the negative, it should be ascertained whether the
acts in question were committed by persons who, while not organs of the Respondent,
did nevertheless act on the instruments of, or under the direction or control of, the
Respondent.31
The Court decided that the Bosnian Serb militia did not have the status of
organs, de iure or de facto, at the material time.32 The Court then moved
to the further alternative argument of the Applicant, namely, that the
actions at Srebrenica were committed by persons who, although not
having the status of organs of the respondent, acted on its instructions or
under its direction or control, applying ARSIWA Article 8. The Court
concluded that there was no sufficient factual basis for finding the
Respondent responsible on the basis of direction or control.33
(ii) Armed forces
The same principles applicable for the executive apply to members of the
armed forces, but a higher standard of prudence in their discipline and
control is required.34 In Kling, Commissioner Nielsen said: ‘[i]n cases of
this kind it is mistaken action, error in judgment, or reckless conduct of
soldiers for which a government in a given case has been held
responsible. The international precedents reveal the application of
principles as to the very strict accountability for mistaken
35
action’.35 Another example of responsibility arising from mistaken but
culpable action by units of the armed forces is the shooting down of a
South Korean commercial aircraft by Soviet forces in 1983.36
In Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v Uganda) the International Court addressed the question
whether Uganda was responsible for the acts and omissions of its armed
forces on the territory of the DRC as follows:
The conduct of the UPDF as a whole is clearly attributable to Uganda, being the conduct
of a State organ. According to a well-established rule of international law, which is of
customary
References
(p. 546) character, ‘the conduct of any organ of a State must be regarded as an act of
that State’…In the Court’s view, by virtue of the military status and function of Ugandan
soldiers in the DRC, their conduct is attributable to Uganda. The contention that the
persons concerned did not act in the capacity of persons exercising governmental
authority in the particular circumstances, is therefore without merit. It is furthermore
irrelevant for the attribution of their conduct to Uganda whether the UPDF personnel
acted contrary to the instructions given or exceeded their authority. According to a wellestablished rule of a customary nature, as reflected in Article 3 of the Fourth Hague
Convention respecting the Laws and Customs of War on Land of 1907 as well as in
Article 91 of Protocol 1 additional to the Geneva Conventions of 1949, a party to an
armed conflict shall be responsible for all acts by persons forming part of its armed
forces.37
A related issue is whether the conduct of state military forces acting
under the command and control of a different entity may be attributed to
the state of nationality of the military forces. In Behrami, the European
Court of Human Rights refused to attribute to states the conduct of their
forces participating in the deployment of forces to Kosovo in 1999, on the
grounds that the deployment had been authorized by an SC resolution
and ‘the UNSC retained ultimate authority and control and that effective
command of the relevant operational matters was retained by
NATO’.38 But the Court of Appeal in The Hague explicitly refuted this
reasoning in Mustafic and Nuhanovic, two cases concerning the
responsibility of the Dutch state for the omissions of the Dutch battalion
of the Airborne Brigade (Dutchbat) during the massacre of Srebrenica:
[T]he Court adopts as a starting point that the possibility that more than one party has
‘effective control’ is generally accepted, which means that it cannot be ruled out that the
application of this criterion results in the possibility of attribution to more than one party.
For this reason the Court will only examine if the State exercised ‘effective control’ over
the alleged conduct and will not answer the question whether the UN also had ‘effective
control’…
An important part of Dutchbat’s remaining task after 11 July 1995
consisted of the aid to and the evacuation of the refugees. During this
transition period, besides the UN, the Dutch Government in The Hague
had control over Dutchbat as well, because this concerned the
preparations for a total withdrawal of Dutchbat from Bosnia and
Herzegovina. In this respect [the commanding officer] fulfilled a double
role because he acted on behalf of the UN and also on behalf of the
Dutch Government. The fact that The Netherlands had control over
Dutchbat was not only theoretical, this control was also exercised in
practice…The Court concludes therefore that the State possessed
‘effective control’ over the alleged conduct of Dutchbat that is the subject
of Nuhanovic’s claim and that this conduct can be attributed to the
State.39
References
(p. 547) In Al-Jedda, the European Court of Human Rights issued a
decision recognizing attribution, but under different circumstances. The
case concerned the detention of an Iraqi citizen, held for three years in
Basra by UK forces. The Court considered that:
the United Nations’ role as regards security in Iraq in 2004 was quite different from its
role as regards security in Kosovo in 1999…the United Nations Security Council had
neither effective control nor ultimate authority and control over the acts and omissions of
troops within the Multi-National Force and that the applicant’s detention was not,
therefore, attributable to the United Nations…The internment took place within a
detention facility in Basrah City, controlled exclusively by British forces, and the applicant
was therefore within the authority and control of the United Kingdom throughout…40
In holding that the internment of Al-Jedda was attributable to the UK, the
Court attached great weight to the lack of an SC resolution such as that
for the deployment of forces to Kosovo in 1999. In making this formal
distinction, it stopped short of considering, as the Dutch court did, that
multiple entities may have ‘effective control’ over forces, and that
effective control by a state makes the conduct of these forces attributable
to the state regardless of the legal form taken by the operation. But both
propositions are true.
(iii) Federal units, provinces, and other internal divisions41
A state cannot plead its own law, including its constitution, in answer to
an international claim. ARSIWA Article 4 makes explicit reference to this,
specifying that acts of a state organ are attributable to a state ‘whatever
its character as an organ of the central government or of a territorial unit
of the state’. Arbitral jurisprudence contains examples of the
responsibility of federal states for acts of authorities of units of the
federations.42 This was confirmed in LaGrand (Provisional Measures),
where the Court observed that the governor of Arizona was legally
empowered to take the action necessary to comply with the provisional
measure, and stressed that, from the viewpoint of international law, the
domestic distribution of functions between federated entities is irrelevant:
‘the international responsibility of a State is engaged by the action of the
competent organs and authorities acting in that State, whatever they may
be…the Governor of Arizona is under the obligation to act in conformity
with the international undertakings of the United States’.43
References
(p. 548) In Australia—Salmon, regarding a ban on imports of salmon
imposed by Tasmania, the WTO Panel observed that ‘the Tasmanian ban
is to be regarded as a measure taken by Australia, in the sense that it is
a measure for which Australia, under both general international law and
relevant WTO provisions, is responsible’.44 More controversially, the
Inter-American Court of Human Rights has construed the ‘federal clause’
in the American Convention to imply state responsibility for the actions of
federated units.45
(iv) The legislature
The legislature is in normal circumstances a vital part of state
organization and gives expression to official policies by its enactments.
The problem specific to this category is to determine when the breach of
duty entails responsibility. Commonly, in the case of injury to aliens, a
claimant must establish damage consequent on the implementation of
legislation or the omission to legislate.46 However, it may happen that,
particularly in the case of treaty obligations,47 the acts and omissions of
the legislature are, without more, creative of responsibility.48For example,
if a treaty creates a categorical obligation to incorporate certain rules in
domestic law (as with uniform law treaties), failure to do so entails
responsibility without proof of actual damage.
(v) The judicature
The activity of judicial organs relates substantially to the rubric ‘denial of
justice’, which will be considered in chapter 29. However, the doings of
courts may affect the responsibility of the forum state in other ways. Thus
in respect of the application of treaties McNair states: ‘a State has a right
to delegate to its judicial department the application and interpretation of
treaties. If, however, the courts commit errors in that task or decline to
give effect to the treaty or are unable to do so because the necessary
change in, or addition to, the national law has not been made, their
judgments involve the State in a breach of treaty’.49 In US—Shrimp, in
response to the argument that discriminatory treatment had been a
consequence of the government’s obligation to follow judicial decisions,
the WTO Appellate Body affirmed that ‘[t]he United States, like all other
members of the WTO and of the general community of states, bears
responsibility for acts of all its departments of government, including its
judiciary’.50
References
(p. 549) In LaGrand51 and Avena,52 foreigners in the US had been
condemned to capital punishment without regard for their consular rights
under the Vienna Convention.53 In LaGrand (Provisional Measures), the
Court ordered the stay of the executions, reminding the parties that ‘the
international responsibility of a State is engaged by the action of the
competent organs and authorities acting in that State, whatever they may
be’.54Following the rejection of the order by the US courts, the ICJ
adjudged ‘that the United States, by applying rules of its domestic law…
violated its international obliga-tions’.55 Similarly, in Avena, the Court
considered that ‘the rights guaranteed under the Vienna Convention are
treaty rights which the United States has undertaken to comply with…the
legal consequences of [a] breach have to be examined and taken into
account in the course of review and reconsideration…the process of
review and reconsideration should occur within the overall judicial
proceedings relating to the individual defendant concerned’.56
(C) Ultra vires or Unauthorized Acts57
It has long been apparent in the sphere of domestic law that acts of
public authorities which are ultra vires should not by that token create
immunity from legal consequences for the state. In international law there
is a clear reason for disregarding a plea of unlawfulness under domestic
law: the lack of express authority cannot be decisive as to the
responsibility of the state.
It is thus well established that states may be responsible for ultra
vires acts of their officials committed within their apparent authority or
general scope of authority. In Union Bridge Company, a British official of
the Cape Government Railways appropriated neutral (American) property
during the Second Boer War, mistakenly believing it was not neutral: the
tribunal considered that responsibility was not affected by the official’s
mistake or the lack of intention on the part of the British authorities to
appropriate the material, stating that the conduct was within the general
scope of duty of the official.58 In Caire a captain and a major in the
Conventionist forces in control of Mexico had demanded money from
Caire under threat of death, and had then ordered the shooting of their
victim when the money was not forthcoming. In holding Mexico
responsible, the Commission said:
The State also bears an international responsibility for all acts committed by its officials
or its organs which are delictual according to international law, regardless of whether
References
(p. 550) the official or organ has acted within the limits of his competency or has
exceeded those limits…However, in order to justify the admission of this objective
responsibility of the State for acts committed by its officials or organs outside their
competence, it is necessary that they should have acted, at least apparently, as
authorized officials or organs, or that, in acting, they should have used powers or
measures appropriate to their official character…59
In Youmans, the Commission stated: ‘[s]oldiers inflicting personal injuries
or committing wanton destruction or looting always act in disobedience of
some rules laid down by superior authority. There could be no
responsibility whatever for such misdeeds if the view were taken that any
acts committed by soldiers in contravention of instructions must always
be considered as personal acts’.60
It is not always easy to distinguish personal acts and acts within the
scope of (apparent) authority. In the case of higher organs and officials
the presumption will be that there was an act within the scope of
authority.61Where the standard of conduct required is very high, as in the
case of military leaders and cabinet ministers in relation to control of
armed forces, it may be quite inappropriate to use the dichotomy of
official and personal acts: here, as elsewhere, much depends on the type
of activity and the related consequences in the particular case.62
It is not difficult to find cases in which the acts of state agents were
clearly ultra vires and yet responsibility has been affirmed. In
the Zafiro the US was held responsible for looting by the civilian crew of a
merchant vessel employed as a supply vessel by American naval forces,
under the command of a merchant captain who in turn was under the
orders of an American naval officer.63 The tribunal emphasized the failure
to exercise proper control in the circumstances.64 What really matters,
however, is the amount of control which ought to have been exercised in
the particular circumstances, not the amount of actual control.65
This principle is of particular importance in relation to administrative
practices involving violations of human rights, as well as for the conduct
of armed forces during conflict. In Armed Activities (DRC v Uganda), the
International Court observed that
References
(p. 551) customary international law provides that, in the case of armed
conflict, all the acts of a state’s armed forces are attributable to that state,
regardless of which instructions were given or whether personnel
acted ultra vires:
The conduct of individual soldiers and officers of the UPDF [Uganda People’s Defence
Force] is to be considered as the conduct of a State organ. In the Court’s view, by virtue
of the military status and function of Ugandan soldiers in the DRC, their conduct is
attributable to Uganda. The contention that the persons concerned did not act in the
capacity of persons exercising governmental authority in the particular circumstances, is
therefore without merit.66
In Velásquez Rodríguez, the Inter-American Court of Human Rights
observed that unlawful conduct may arise from acts of any state organs,
officials or public entities and that:
[t]his conclusion is independent of whether the organ or official has contravened
provisions of internal law or overstepped the limits of his authority: under international
law a State is responsible for the acts of its agents undertaken in their official capacity
and for their omissions, even when those agents act outside the sphere of their authority
or violate internal law.67
(D) Mob Violence, Insurrection, Revolution, and Civil War68
The general principles considered below apply to a variety of situations
involving acts of violence either by persons not acting as agents of the
lawful government of a state, or by persons acting on behalf of a rival or
candidate government set up by insurgents. The latter may be described
as a ‘de facto government’. In the case of localized riots and mob
violence, substantial neglect to take reasonable precautionary and
preventive action and inattention amounting to outright indifference or
connivance on the part of responsible officials may create responsibility
for damage to foreign public and private property in the area.69 In the
proceedings arising from the seizure of US diplomatic and consular staff
as hostages in Tehran, the International Court based responsibility for
breaches of the law of diplomatic relations upon the failure of the Iranian
authorities to control the militants (in the early phase) and also upon the
adoption and approval of the acts of the militants (at the later stage).70
References
(p. 552) McNair extracts five principles from the reports of the legal
advisers of the British Crown on the responsibility for the consequences
of insurrection or rebellion. The first three principles are as follows:
(i) A State on whose territory an insurrection occurs is not
responsible for loss or damage sustained by a foreigner unless it
can be shown that the Government of that State was negligent in
the use of, or in the failure to use, the forces at its disposal for the
prevention or suppression of the insurrection;
(ii) this is a variable test, dependent on the circumstances of the
insurrection;
(iii) such a State is not responsible for the damage resulting from
military operations directed by its lawful government unless the
damage was wanton or unnecessary, which appears to be
substantially the same as the position of belligerent States in an
international war.71
The general rule of non-responsibility rests on the premise that even
objective responsibility requires a normal capacity to act, and a major
internal upheaval is tantamount to force majeure. But uncertainty arises
when the qualifications put upon the general rule are examined. There is
general agreement among writers that the rule of non-responsibility
cannot apply where the government concerned has failed to show due
diligence.72However, the decisions of tribunals and the other sources
offer no definition of ‘due diligence’. No doubt the application of this
standard will vary according to the circumstances,73 yet, if ‘due diligence’
be taken to denote a fairly high standard of conduct the exception will
overwhelm the rule. In a comment on the Harvard Research Draft it is
stated that: ‘[i]nasmuch as negligence on the part of the government in
suppressing an insurrection against itself is improbable, the claimant
should be deemed to have the burden of showing negligence.’74
In fact there is no modern example of a state being held responsible for
negligent failure to suppress insurgents. The ILC made the point in its
commentary to ARSIWA Article 10, referring to ‘[t]he general principle
that the conduct of an insurrectional or other movement is not attributable
to the State…on the assumption that the structures and organization of
the movement are and remain independent of those of the State…
Exceptional cases may occur where the State was in a position to adopt
measures of vigilance, prevention or punishment in respect of the
movement’s conduct but improperly failed to do so’.75 There is older
authority for the view that the granting of an amnesty to rebels constitutes
a failure of duty and an acceptance of responsibility for their acts, but
again this is doubtful absent conduct of the state amounting to complicity
or adoption.76
References
(p. 553) The other two principles propounded by McNair are generally
accepted:
(iv) such a State is not responsible for loss or damage caused by
the insurgents to a foreigner after that foreigner’s State has
recognized the belligerency of the insurgents;
(v) such a State can usually defeat a claim in respect of loss or
damage sustained by resident foreigners by showing that they
have received the same treatment in the matter of protection or
compensation, if any, as its own nationals (the plea of diligentia
quam in suis).77
Victorious rebel movements are responsible—qua new government of
the state—for unlawful acts or omissions by their forces occurring during
the course of the con-flict.78 The state also remains responsible for the
unlawful conduct of the previous government.
(E) Joint Responsibility
Two issues affecting responsibility in the context of the ‘joint’ action of
states demand attention. The first concerns the official acting in different
capacities. In Chevreau, part of the French claim against the UK related
to loss flowing from the negligence of the British consul in Persia, acting
at the material time as agent for the French consul: the tribunal rejected
this part of the claim.79 The second problem concerns the dependent
state. In the case where the putative dependent state cannot be regarded
as having any degree of international personality because of the extent of
outside control, then the incidence of responsibility is no longer in
question. In other cases a state may by treaty or otherwise assume
international responsibility for another government.80 In Spanish Zone of
Morocco, Huber said:
[I]t would be extraordinary if, as a result of the establishment of the Protectorates, the
responsibility incumbent upon Morocco in accordance with international law were to be
diminished. If the responsibility has not been assumed by the protecting Power, it
remains the burden of the protected State; in any case, it cannot have disappeared.
Since the protected State is unable to act without an intermediary on the international
level, and since every measure by which a third State sought to obtain respect for its
rights from the Cherif, would inevitably have an equal effect upon the interests of the
protecting Power, it is the latter who must bear the responsibility of the protected State,
at least by way of vicarious liability…the responsibility of the protecting State…is based
on the fact that it is that State alone which represents the protected State in international
affairs…81
References
(p. 554) However, in cases where the dependent state retains sufficient
legal powers to maintain a separate personality and the right to conduct
its own foreign relations, the incidence of responsibility will depend on the
circumstances.82
The principles relating to joint responsibility of states are as yet indistinct,
and municipal analogies are unhelpful. A rule of joint and several
responsibility in delict should certainly exist as a matter of principle, but
practice is scarce.83 Practice in the matter of reparation payments for
unlawful invasion and occupation in the immediate post-war period rested
on the assumption that Axis countries were liable on the basis of
individual causal contribution to damage and loss, unaffected by the
existence of co-belligerency.84 However, if there is joint participation in
specific actions, for example where state A supplies planes and other
material to state B for unlawful dropping of guerrillas and state B
operates the aircraft, what is to be the position?
In Certain Phosphate Lands in Nauru (Nauru v Australia) the International
Court held that the possibility of the existence of a joint and several
responsibility of three states responsible for the administration of the
Trust Territory at the material time did not render inadmissible a claim
brought against only one of them.85 The question of substance was
reserved for the merits. In fact, a negotiated settlement was
reached86 and, subsequently, the UK and New Zealand, the other states
involved, agreed to pay contributions to Australia on an ex gratia basis.87
ARSIWA Article 47 incorporates this reasoning, providing that the
responsibility of each state may be invoked in the case of plurality of
responsible states, as long as total compensation does not exceed the
damage suffered by the injured state. In other words, each state is
separately responsible and that responsibility is not reduced by the fact
that one or more other states are also responsible for the same act.
(F) Complicity
In Genocide (Bosnia and Herzegovina v Serbia and Montenegro), an
issue arose concerning Serbia’s alleged complicity for genocide within
the meaning of Article III(e) of the Genocide Convention. The Court said:
[A]lthough ‘complicity’, as such, is not a notion which exists in the current terminology of
the law of international responsibility, it is similar to a category found among the
customary rules constituting the law of State responsibility, that of the ‘aid or assistance’
furnished by one State for the commission of a wrongful act by another State…to
ascertain whether the Respondent is responsible for ‘complicity in genocide’ within the
meaning of Article III, paragraph (e), which is what the Court now has to do, it must
examine whether organs of
References
(p. 555) the respondent State, or persons acting on its instructions or under its direction
or effective control, furnished ‘aid or assistance’ in the commission of the genocide in
Srebrenica, in a sense not significantly different from that of those concepts in the
general law of international responsibility.88
The Court thereby endorsed ARSIWA Article 14, which provides:
Aid or assistance in the commission of an internationally wrongful act
A State which aids or assists another State in the commission of an
internationally wrongful act by the latter is internationally responsible for
doing so if:
(a) That State does so with knowledge of the circumstances of the
internationally wrongful act; and
(b) The act would be internationally wrongful if committed by that
State.
This is a potentially wide-ranging principle of ancillary responsibility
(although valuable clarifications are offered in the commentary).89
90
(G) Approval or Adoption by a State of Wrongful Acts90
Responsibility accrues, quite apart from the operation of other factors, if a
state accepts or otherwise adopts the conduct of private persons or
entities as its own. The International Court applied this principle to the
actions of the militants in Tehran Hostages.91 It is expressed in ARSIWA
Article 11, which specifies that the state only becomes responsible ‘if and
to the extent that the State acknowledges and adopts the conduct in
question as its own’. The commentary adds:
The phrase…is intended to distinguish cases of acknowledgement and adoption from
cases of mere support or endorsement…In international controversies States often take
positions which amount to ‘approval’ or ‘endorsement’ of conduct in some general sense
but do not involve any assumption of responsibility. The language of ‘adoption’, on the
other hand, carries with it the idea that the conduct is acknowledged by the State as, in
effect, its own conduct.92
4. Breach of an International Obligation
(A) ‘Vicarious Responsibility’
In general, broad formulas on state responsibility are unhelpful and, when
they suggest municipal analogies, even a source of confusion. Unhappily
Oppenheim draws a
References
(p. 556) distinction between original and vicarious state responsibility.
Original responsibility flows from acts committed by, or with authorization
of, the government of a state; vicarious responsibility flows from
unauthorized acts of the agents of the state.93 It is true that the legal
consequences of the two categories of acts may not be the same; but
there is no fundamental difference between the two categories, and, in
any case, the use of ‘vicarious responsibility’ here is surely erroneous.
(B) ‘Objective Responsibility’
Technically, objective responsibility rests on the doctrine of the voluntary
act: provided that agency and causal connection are established, there is
a breach of duty by result alone. Defences, such as act of third party, are
available, but the defendant has to exculpate itself.94 In the conditions of
international life, which involve relations between complex communities
acting through a variety of institutions and agencies, the public law
analogy of the ultra vires act is more realistic than a seeking for
subjective culpa in specific natural persons who may, or may not,
‘represent’ the legal person (the state) in terms of wrongdoing. Where, for
example, an officer in charge of a cruiser on the high seas orders the
boarding of a fishing vessel flying the flag of another state, there being no
legal justification for the operation, and the act being in excess of
authority, a tribunal will not regard pleas that the acts were done in good
faith, or under a mistake of law, with any favour.95
The practice of states and the jurisprudence both of arbitral tribunals and
the International Court have followed the theory of objective responsibility
as a general principle (which may be modified or excluded in certain
cases).96 Objective tests of responsibility were employed by the US–
Mexico General Claims Commission
in Neer97 and Roberts.98 In Caire,99 Verzijl, President of the FrancoMexican Claims Commission, applied
the doctrine of the objective responsibility of the State, that is to say, a responsibility for
those acts committed by its officials or its organs, and which they are bound to perform,
despite the absence of faute on their part…The State also bears an international
responsibility for all acts committed by its officials or its organs which are delictual
according to international law, regardless of whether the official organ has acted within
the limits of his competency or has exceeded those limits.…However, in order to justify
the admission of this objective responsibility of the State for acts committed by its
officials or organs outside
References
(p. 557) their competence, it is necessary that they should have acted, at least
apparently, as authorised officials or organs, or that, in acting, they should have used
powers or measures appropriate to their official character…100
This view has general support in the literature.101 At the same time
certain authorities have supported the Grotian view that culpa provides
the basis of state responsibility in all cases.102 A small number of arbitral
103
awards also support the culpa doctrine.103 In Home Missionary Society,
the tribunal referred to a ‘well-established principle of international law
that no government can be held responsible for the act of rebellious
bodies of men committed in violation of its authority, where it is itself
guilty of no breach of good faith, or of no negligence in suppressing
insurrection’.104 However, many of the awards cited in this connection are
concerned with the standard of conduct required by the law in a particular
context, for example claims for losses caused by acts of rebellion, of
private individuals, of the judiciary, and so on. Thus in Chattin the
General Claims Commission described the judicial proceedings in Mexico
against Chattin as ‘being highly insufficient’ and referred, inter alia, to ‘an
insufficiency of governmental action recognizable by every unbiased
man’.105 Chattin had been convicted on a charge of embezzlement and
sentenced by the Mexican court to two years’ imprisonment. The
Commission referred to various defects in the conduct of the trial and
remarked that ‘the whole of the proceedings discloses a most astonishing
lack of seriousness on the part of the Court’. Furthermore, both
writers106 and tribunals107 may use the words faute or fault to mean a
breach of legal duty, an unlawful act. Culpa, in the sense of culpable
negligence, will be relevant when its presence is demanded by a
particular rule of law. Objective responsibility would seem to come nearer
to being a general principle, and provides a better basis for maintaining
acceptable standards in international relations and for effectively
upholding the principle of reparation.
The proposition that the type of advertence required varies with the legal
context can be illustrated by Corfu Channel. In fact the Court was
concerned with the particular question of responsibility for the creation of
danger in the North Corfu Channel by the laying of mines, warning of
which was not given. The necessary predicate for responsibility was
Albania’s knowledge of the presence of the mines. The Court considered
‘whether it has been established by means of indirect evidence
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(p. 558) that Albania has knowledge of mine-laying in her territorial
waters independently of any connivance on her part in this
operation’.108 Later on it concluded that the laying of the minefield ‘could
not have been accomplished without the knowledge of the Albanian
Government’ and referred to ‘every State’s obligation not to allow
knowingly its territory to be used for acts contrary to the rights of other
States’.109 Responsibility thus rested upon violation of a particular legal
duty. The Court was not concerned with culpa as such, and it fell to the
dissentients to affirm the doctrine of culpa.110
In Genocide (Bosnia and Herzegovina v Serbia and Montenegro), the
International Court excluded the culpa doctrine, reaffirming what it termed
‘the well-established rule, one of the cornerstones of the law of State
responsibility, that the conduct of any State organ is to be considered an
act of the State under international law, and therefore gives rise to the
responsibility of the State if it constitutes a breach of an international
obligation of the State. This rule, which is one of customary international
law, is reflected in Article 4 of the ILC Articles on State Responsibility’.111
Although culpa is not a general condition of responsibility, it may play an
important role in certain contexts. Thus where the loss complained of
results from acts of individuals not employed by the state, or from
activities of licensees or trespassers on the territory of the state,
responsibility will depend on an unlawful omission. In this type of case
questions of knowledge may be relevant in establishing responsibility for
failure to act.112However, tribunals may set standards of ‘due diligence’
and the like, in respect of the activities, or failures to act, of particular
organs. In effect, since looking for specific evidence of a lack of proper
care on the part of state organs is often a fruitless task, the issue
becomes one of causation.113 In the Lighthouses arbitration between
France and Greece one of the claims arose from the eviction of a French
firm from their offices in Salonika and the subsequent loss of their stores
in a fire which destroyed the temporary premises. The Permanent Court
of Arbitration said:
Even if one were inclined…to hold that Greece is in principle responsible for the
consequences of that evacuation, one could not…admit a causal relationship between
the damage caused by the fire, on the one part, and that following on the evacuation, on
the other, so as to justify holding Greece liable for the disastrous effects of the fire…The
damage was neither a foreseeable nor a normal consequence of the evacuation, nor
attributable to any want of care on the part of Greece. All causal connection is lacking,
and in those circumstances Claim No 19 must be rejected.114
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(p. 559) In any case, as Judge Azevedo pointed out in his dissenting
opinion in Corfu Channel,115 the relations of objective responsibility and
the culpa principle are very close: the effect of the judgment was to place
Albania under a duty to take reasonable care to discover hazardous
activities of third parties.
When a state engages in lawful activities, responsibility may be
generated by culpa in the execution of the lawful measures. In In re
Rizzo, concerning the sequestration of Italian property in Tunisia by the
French government after the defeat of Italy, the Conciliation Commission
said: ‘the act contrary to international law is not the measure of
sequestration, but an alleged lack of diligence on the part of the French
State—or, more precisely, of him who was acting on its behalf—in the
execution of the said measure…’.116 The existence and extent
of culpa may affect the extent of damages,117 and, of course, a
requirement to exercise due diligence may be stipulated for in treaty
provisions.
(C) The Problem of State Motive or Intent
Motive and intention are frequently a specific element in the definition of
permitted conduct. Once it is established that conduct is unlawful,
however, the fact that an ultra vires act of an official is accompanied by
malice, that is, an intention to cause harm, without regard to whether or
not the law permits the act, does not affect the responsibility of the state
(although it may be relevant to quantum). Indeed, the principle of
objective responsibility dictates the irrelevance of intention to harm as a
condition of responsibility. Yet general propositions of this sort should not
lead to the conclusion that intention plays no role. For example the
existence of a deliberate intent to injure may have an effect on
remoteness of damage as well as helping to establish the breach of
duty.118
(D) The Individuality of Issues
At this stage it is perhaps unnecessary to repeat that over-simplification
of the problems, and too much reliance on general propositions about
objective responsibility and the like, can result in lack of finesse in
approaching particular issues. Legal issues, particularly in disputes
between states, have an individuality which resists a facile application of
general rules. Much depends on the assignment of the burden of proof,
the operation of the law of evidence, acquiescence and estoppel, the
terms of the compromis, and the content of the relevant substantive rules
or treaty provisions.
References
(p. 560) Thus in Corfu Channel, the approach adopted by the majority
fails to correspond neatly with either the culpa doctrine or the test of
objective responsibility. ‘Intention’ is a question-begging category and
appears in the case only in specialist roles. Thus, in the case of the
British passage ‘designed to affirm a right which had been unjustly
denied’ by Albania, much turned on the nature of the passage.119 Taking
all the circumstances into account, the Court held that the passage of two
cruisers and two destroyers through a part of the North Corfu Channel
constituting Albanian territorial waters, was an innocent passage. As to
the laying of the mines which damaged the destroyers, Saumarez and
Volage, the Court looked for evidence of knowledge on the part of
Albania. The case also illustrates the interaction of the principles of proof
and responsibility. The Court said:
[I]t cannot be concluded from the mere fact of the control exercised by a State over its
territory and waters that that State necessarily knew, or ought to have known, of any
unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known,
the authors. This fact, by itself and apart from other circumstances, neither
involves prima facie responsibility nor shifts the burden of proof.
On the other hand, the fact of this exclusive territorial control exercised
by a State within its frontiers has a bearing upon the methods of proof
available to establish the knowledge of that State as to such events. By
reason of this exclusive control, the other State, the victim of a breach of
international law, is often unable to furnish direct proof of facts giving rise
to responsibility. Such a State should be allowed a more liberal recourse
to inferences of fact and circumstantial evidence. The Court must
examine therefore whether it has been established by means of indirect
evidence that Albania has knowledge of mine-laying in her territorial
waters independently of any connivance on her part in this operation. The
proof may be drawn from inferences of fact, provided they leave no
room for reasonable doubt. The elements of fact on which these
inferences can be based may differ from those which are relevant to the
question of connivance.120
(E) Liability for Lawful Acts
It may happen that a rule provides for compensation for the
consequences of acts which are not unlawful in the sense of being
prohibited.121 Thus UNCLOS Article 110 provides for the boarding of
foreign merchant ships by warships where there is reasonable ground for
suspecting piracy or certain other activities. Paragraph 3 then provides:
‘[i]f the suspicions prove to be unfounded, and provided that the ship
boarded has not committed any act justifying them, it shall be
compensated for any loss or damage that may have been sustained’.122
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(p. 561) Liability for acts not prohibited by international law has acquired
great relevance in the field of international environmental law, as lawful
economic activity may produce pollution and other externalities that
transcend the borders of a single state.123 Yet there is little authority
supporting the category as such, apart from express stipulations such as
Article 110(3). In Trail Smelter, a smelter located in Canada was
producing air pollution which affected the US. The Arbitral Tribunal
considered that Canada was responsible under international law for the
damage, regardless of the legality of the activity itself. Drawing analogies
essentially from domestic law cases, the Tribunal concluded ‘that, under
the principles of international law, as well as of the law of the United
States, no State has the right to use or permit the use of its territory in
such a manner as to cause injury by fumes in or to the territory of another
or the properties or persons therein, when the case is of serious
consequence and the injury is established by clear and convincing
evidence’.124
The topic was examined at length by the ILC, which eventually concluded
in 2006 its Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm Arising out of Hazardous Activities.125 Principle
4(1) provides that states must ‘ensure that prompt and adequate
compensation is available for victims of transboundary damage’. While it
is doubtful whether courts will be willing to impose responsibility for
transboundary damage on states in the absence of an express
obligation,126 specific regimes have advanced in establishing different
means of legal redress in the case of environmental harm.127
In all of these cases, one can always refer back to the duty of due
diligence. The fact that an activity is itself not prohibited by international
law does not exclude that damage caused by poor judgement or poor
management in carrying out the activity cannot entail responsibility.128 In
that sense, the sole example unanimously accepted as creating liability
for an act that is completely lawful under international law is contained in
the 1972 Convention on International Liability for Damage Caused by
Space Objects. Article II provides that ‘[a] launching State shall be
absolutely liable to pay compensation for damage caused by its space
object on the surface of the Earth or to aircraft in flight’; Article III contains
the usual provision of liability for fault in the case of damage caused by a
space object outside the surface of the earth.129
References
(p. 562) (F) ‘Abuse of Rights’
Several systems of law recognize the doctrine of abuse of rights.130 Thus
Article 1912 of the Mexican Civil Code: ‘If in the exercise of a right
damage is caused to another, there is an obligation to indemnify the
injured party if it is shown that the right was exercised only to cause
injury, without any benefit to the holder of the right’.131 This doctrine has
had only limited support from international tribunals.132 In Certain
German Interests in Polish Upper Silesia, the Permanent Court held that,
after the peace treaty came into force and until the transfer of sovereignty
over Upper Silesia, the right to dispose of state property in the territory
remained with Germany. Alienation would constitute a breach of her
133
obligations if there was a ‘misuse’ of this right.133 But in the view of the
Court, German policy in alienating land in that case amounted to no more
than the normal administration of public property.
In Free Zones of Upper Savoy and the District of Gex the Court held that
French fis-cal legislation applied in the free zones (which were French
territory), but that ‘a reservation must be made as regards the case of
abuse of a right, an abuse which, however, cannot be presumed by the
Court’.134
It is not unreasonable to regard the principle of abuse of rights as a
general principle of law. However, its application is a matter of some
delicacy. After considering the work of the International Court,
Lauterpacht observed:
These are but modest beginnings of a doctrine which is full of
potentialities and which places a considerable power, not devoid
of a legislative character, in the hands of a judicial tribunal.
There is no legal right, however well established, which could
not, in some circumstances, be refused recognition on the
ground that it has been abused. The doctrine of abuse of rights
is therefore an instrument which…must be wielded with studied
restraint.135
In some cases the doctrine may help explain the genesis of a rule of law,
for example the principle that no state has a right to use or permit the use
of its territory in such a manner as to cause injury by fumes to the
territory of another.136 Often it represents a plea for legislation or the
modification of rules to suit special circumstances. In general
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(p. 563) the question is whether the exercise of a state power or privilege
is dependent on the presence of certain objectives. The presumption in
the case of acts prima facie lawful is that motive is irrelevant, but the law
may provide otherwise. When the criteria of good faith, reasonableness,
normal administration, and so on are provided by an existing legal rule,
reference to ‘abuse of rights’ adds nothing. Similarly, in the case of
international organizations, responsibility for excess of
authority, détournement de pouvoir, exists independently of any general
principle of abuse of rights. In conclusion while the doctrine is a useful
agent in the progressive development of the law as a general principle, it
is not part of positive international law. Indeed it is doubtful if it could be
safely recognized as an ambulatory doctrine, since it would encourage
doctrines as to the relativity of rights and would result, outside the judicial
forum, in instability.
5. Circumstances Precluding Wrongfulness137
Circumstances precluding wrongfulness are ‘excuses’, ‘defences’, and
‘exceptions’, that is, justifications available to states which exclude
responsibility when it would otherwise be engaged. After much
refinement and debate, the ILC included in ARSIWA five types of
circumstances precluding wrongfulness: these are consent (Article 20),
self-defence (Article 21), countermeasures (Article 22), force
majeure (Article 23), distress (Article 24), and necessity (Article 25).
These classifications however, are conventional and not entirely logical;
the very presence of this section has been criticized as being outside the
scope of the Articles, since some of the circumstances—notably consent
and self-defence—seem more akin to ‘primary’ rules, which define the
content of obligations than to ‘secondary’ ones.138
The existence of a separate category for ‘defences’ should imply a legal
burden of proof on the proponents of defences, and some adjudicating
organs, such as the WTO Appellate Body, have instituted complex
procedural rules. In EC—Tariff Preferences, it said:
In cases where one provision permits, in certain circumstances, behaviour that would
otherwise be inconsistent with an obligation in another provision, and one of the two
provisions refers to the other provision, the Appellate Body has found that the
complaining party bears the burden of establishing that a challenged measure is
inconsistent with the provision permitting particular behaviour only where one of the
provisions suggests that the obligation is not applicable to the said measure. Otherwise,
the permissive provision has been
References
(p. 564) characterized as an exception, or defence, and the onus of invoking it and
proving the consistency of the measure with its requirements has been placed on the
139
139
responding party.
But this is not always the case. In international law the incidence of the
burden of proof is not simply dependent on a claimant-respondent
relation as assumed in systems of municipal law.140 When cases are
submitted to courts through a compromis, neither of the parties can be
considered respondent—and often both make affirmative claims.
Moreover, defences such as extinctive prescription and consent
(acquiescence or waiver) may be considered as issues of admissibility or
may be reserved to the merits. In general the rule is actori incumbit
probatio (he who asserts a proposition must prove it).
Tribunals accept defences of voluntary assumption of risk141 and
contributory fault.142 Force majeure143 will apply to acts of war144 and,
under certain conditions, to harm caused by insurrection and civil
war.145 It has been doubted whether necessity exists as an omnibus
category, and in any event its availability as a defence is circumscribed
by rigorous conditions. While necessity has been argued before a
number of tribunals in a diversity of situations, its recognition as a
possibility is usually followed by a denial of its applicability. This was so
both before arbitral tribunals, in the Neptune146 and Russian
Indemnity,147 and before courts, in Gabčíkovo-Nagymaros Project148 and
in M/V Saiga (No 2).149 In LG&E Energy Corp. v Argentina, the tribunal
affirmed that necessity ‘should be only strictly exceptional and should be
applied exclusively when faced with extraordinary circumstances’.150
In particular contexts in the law of armed conflict, military necessity may
be pleaded, and the right of angary allows requisition of ships belonging
to aliens lying within the jurisdiction in time of war or other public
danger.151 The use of force in self-defence, collective self-defence, and
defence of third states now involves a specific legal regime, though it
related in the past to the ambulatory principle of self-preservation. Armed
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(p. 565) reprisals are clearly excluded by the law of the UN Charter, but
the propriety of economic reprisals and the plea of economic necessity is
still a matter of controversy.152
Finally, the increase in the number of multilateral treaties and the
emergence of a diversity of treaty regimes in past decades means that
specialized courts may consider themselves unable to examine an
argument based on a rule outside their domain of competence. This is
particularly the case when the circumstance argued is the application of
general countermeasures before a specialized tribunal. In Mexico—Soft
Drinks, Mexico claimed that its WTO-inconsistent measures were in fact
countermeasures necessary to secure compliance by the US with its
NAFTA obligations. The WTO Appellate Body rejected this argument,
affirming the impossibility for WTO adjudicative organs ‘to assess
whether the relevant international agreement has been violated’.153 Even
a tribunal considering an argument based on its own treaty regime may
consider that a circumstance precluding wrongfulness in not applicable
with regard to a third party. In Cargill, Inc v Mexico, the tribunal affirmed
that ‘[c]ounter-measures may not preclude the wrongfulness of an act in
breach of obligations owed to third States [and] would not necessarily
have any such effect with regard to nationals of the offending State,
rather than to the offending State itself ’.154
References
Footnotes:
1
Anzilotti, Teoria Generaledella Responsabilitàdello Stato nel Dirit to
Internazionale (1902); de Visscher, 2 Bibliotheca Visseriana (1924) 89;
Eagleton, The Responsibility of States in International Law (1928);
Reuter (1961) 103 Hague Recueil 583; Brownlie, System of the Law of
Nations (1983); Riphagen, in Macdonald & Johnston (eds), The Structure
and Process of International Law (1983) 581; Dupuy (1984) 188
Hague Recueil 9; Spinedi & Simma (eds), United Nations Codification of
State Responsibility (1987); Fitzmaurice & Sarooshi (eds), Issues of
State Responsibility before International Judicial Institutions (2004);
Ragazzi (ed), International Responsibility Today (2005); Crawford, Pellet
& Olleson (eds), The Law of International Responsibility (2010).
2
Appended to GA Res 56/83, 12 December 2001.
3
Available with commentary in A/61/10.
4
4
A/CN.4/L.778.
5
ARSIWA and its accompanying commentary are reproduced with
apparatus in Crawford, The International Law Commission’s Articles on
State Responsibility (2002). Of continuing value are the reports of
successive Special Rapporteurs published in ILC Ybk II: García-Amador
(1956–61), Ago (1969–80), Riphagen (1980–6), Arangio-Ruiz (1988–96),
and Crawford (1998–2001).
6
ILC Ybk 1970/II, 177, 179. Ago distinguished ‘rules of international law
which, in one sector of inter-State relations or another, impose particular
obligations on States, and which may, in a certain sense, be termed
“primary”, as opposed to the other rules—precisely those covering the
field of responsibility—which may be termed “secondary”, inasmuch as
they are concerned with determining the consequences of failure to fulfil
obligations established by the primary rules’.
7
A/62/62, 1 February 2007 & Add.1; A/65/76, 30 April 2010, identifying
154 cases referring to ARSIWA.
8
Caron (2002) 96 AJIL 857; Crawford & Olleson (2005) 54 ICLQ 959.
For the conflicting views of governments: A/65/96 & Add.1 (2010).
9
Formerly sovereigns authorized private citizens to perform acts of
reprisal (special reprisals) against the citizens of other states:
Wheaton, Elements of International Law (1866) 309–11.
10
Gentili, De Iure Belli Libri Tres (1612) II.iii; Grotius, De Iure Belli ac
Pacis (1625, ed Tuck 2005) III.x.§4, and generally Crawford, Grant &
Messineo, in Boisson de Chazournes & Kohen (eds), International Law
and the Quest for its Implementation (2010) 377.
11
Union Bridge Company (1924) 6 RIAA 138, 142; cf Jenks, The
Prospects of International Adjudication (1964) 514–33.
12
Translation; French text, 2 RIAA 615, 641. Also Coenca Bros v
Germany (1924) 4 ILR 570.
13
(1927) PCIJ Ser A No 9, 21. See, however, Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v Nigeria), ICJ
Reports 2002 p 303, 452–3; Guyana v Suriname (2008) 47 ILM 166, 232.
14
14
(1928) PCIJ Ser A No 17, 29. Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, Second Phase, ICJ Reports 1950 p
221, 228; Phosphates in Morocco, Preliminary Objections, (1938) PCIJ
Ser A/B No 74, 28.
15
Corfu Channel (UK v Albania), ICJ Reports 1949 p 4, 23.
16
Application of the Convention for the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Serbia and
Montenegro), ICJ Reports 2007 p 43, 115.
17
For the absence of a contract/delict distinction: ARSIWA, Art 12. For
the rejection of a category of ‘international crimes’: ARSIWA, commentary
to Art 12, §§5–7. Doctrinal attempts have been made to define different
regimes for responsibility depending on the gravity of the breach. E.g.
Jørgensen, The Responsibility of States for International Crimes (2000);
Crawford, in Crawford, Pellet & Ollesen (2010) 405; Ollivier, ibid, 703.
18
ARSIWA, Art 2 & commentary.
19
ICJ Reports 1980 p 3, 29. Also Dickson Car Wheel Company
(USA) v United Mexican States (1931) 4 RIAA 669, 678; Phosphates in
Morocco, Preliminary Objections (1938) PCIJ Ser A/B No 74, 28.
20
Christenson, in Lillich (ed), International Law of State Responsibility
for Injuries to Aliens (1983) 321–60.
21
Alabama (1872) in Moore, 1 Int Arb, 653.
22
Canada—Dairy(21.5 II), WTO Doc WT/DS103/AB/RW2, 20 December
2002, §§95–6.
23
Salvador Commercial Company(1902) 15 RIAA 455,
477; Chattin (1927) 4 RIAA 282, 285–6; Difference Relating to Immunity
from Legal Process of a Special Rapporteur of the Commission on
Human Rights, ICJ Reports 1999 p 62, 87. Also Genocide (Bosnia and
Herzegovina v Serbia and Montenegro), ICJ Reports 2007 p 43, 202.
24
(1927) 4 RIAA 155. Also Way (1928) 4 RIAA 391.
25
Massey (1927) 4 RIAA 155, 159.
26
Roper (1927) 4 RIAA 145; Pugh (1933) 3 RIAA 1439.
27
27
Massey (1927) 4 RIAA 155; Way (1928) 4 RIAA 391. For another
opinion: Borchard, Diplomatic Protection of Citizens Abroad (1928) 185–
90.
28
WTO Doc WT/DS/379/R, 22 October 2010, §8.94.
29
US—Anti-Dumping and Countervailing Duties (China), WTO Doc
WT/DS379/AB/R, 11 March 2011, §290. The finding paraphrased
concerned the issue whether Canada’s provincial milk marketing boards
were ‘government agencies’ for the purposes of the Agreement on
Agriculture. See Canada—Dairy, WTO Doc WT/DS103/AB/R, 13 October
1999, §§97, 101.
30
US—Anti-Dumping and Countervailing Duties (China), WTO Doc
WT/DS379/AB/R, 11 March 2011, §318. For a thorough treatment of the
subject: ibid, §§282–356.
31
ICJ Reports 2007 p 43, 201.
32
Ibid, 202–5.
33
Ibid, 211–15. For criticism: Cassese (2007) 18 EJIL 649.
34
Spanish Zone of Morocco (1925) 2 RIAA 615, 645; García &
Garza (1926) 4 RIAA 119; Naulilaa (1928) 2 RIAA 1011; Caire (1929) 5
RIAA 516, 528–9; Chevreau (1931) 2 RIAA 1113; Eis (1959) 30 ILR 116.
35
Kling (1930) 4 RIAA 575, 579.
36
(1983) 22 ILM 1190–8, 1419 (requests from affected states and third
states that the USSR provide compensation); (1983) 54 BY 513 (request
from the UK).
37
ICJ Reports 2005 p 168, 242.
38
Behrami & Saramati v France, Germany & Norway [2007] ECtHR
(GC) 71412/01 & 78166/01, §140. The matter will be discussed in
chapter 29.
39
Mustafic & Nuhanovic v Netherlands; Nuhanovic v Netherlands, 5 July
2011, LJN: BR5386 & BR5388, §§5.9, 5.18, 5.20. See
further: Nollkaemper (2011) 9 JICJ 1143; Boutin (2012) 25 LJIL 521.
40
Al-Jedda v UK [2011] ECtHR (GC) 27021/08, §§83–5. For an account
of the earlier cases: Messineo (2009) 61 NILR 35;
Milanovic, Extraterritorial Application of Human Rights Treaties (2011).
41
Accioly (1959) 96 Hague Recueil 349, 388–91; McNair,
1 Opinions 36–7; Bernier, International Legal Aspects of
Federalism (1973) 83–120.
42
Youmans (1926) 4 RIAA 110; Mallén (1927) 4 RIAA 173; Pellat (1929)
5 RIAA 534; Heirs of the Duc de Guise (1951) 13 RIAA 150,
161; Metalclad Corporation v United Mexican States (2000) 119 ILR
615; SD Myers Inc v Canada (2000) 121 ILR 72.
43
LaGrand(Germany v US), Provisional Measures, ICJ Reports 1999 p
9, 16. Also Request for Interpretation of the Judgment of 31 March 2004
in the Case concerning Avena and Other Mexican Nationals (Mexico v
US), Provisional Measures, ICJ Reports 2008 p 311, 329.
44
Australia—Salmon(21.5), WTO Doc WT/DS18/RW, 18 February 2000,
§7.12.
45
Garrido & Baigorria v Argentina, IACtHR, C/39, 27 August 1998, §38.
46
Mariposa (1933) 6 RIAA 338, 340–1.
47
Where, on a reasonable construction of the treaty, a breach creates a
claim without special damage. In any case, representations may be made
and steps to obtain redress may be taken on a quia timet basis. On the
Panama Canal Tolls controversy between the UK and the US:
McNair, Law of Treaties (1961) 547–50; 6 Hackworth 59.
48
International Responsibility for the Promulgation and Enforcement of
Laws in Violation of the Convention, IACtHR A/14, 9 December 1994,
§50.
49
McNair (1961) 346.
50
WTO Doc WT/DS58/AB/R, 12 October 1998, §173.
51
ICJ Reports 2001 p 466, 508.
52
ICJ Reports 2004 p 12, 66.
53
Also Vienna Convention on Consular Relations (Paraguay v US),
Provisional Measures, ICJ Reports 1998 p 248.
54
55
ICJ Reports 1999 p 9, 16.
55
ICJ Reports 2001 p 466, 472–3. Also Avena Interpretation, ICJ
Reports 2009 p 3, 15.
56
ICJ Reports 2004 p 12, 65–6.
57
Meron (1957) 33 BY 85; García-Amador, ILC Ybk 1957/II 107, 109–
10; Accioly (1959) 96 Hague Recueil 349, 360–3; Anzilotti,
1 Cours (1929) 470–4; Freeman (1955) 88 Hague Recueil 263, 290–2;
Quadri (1964) 113 Hague Recueil 237, 465–8; ILC Ybk 1975/II 47, 61–
70. Now ARSIWA, Art 7 & commentary.
58
(1924) 2 ILR 170, 171.
59
(1929) 5 ILR 146, 147–8.
60
(1926) 3 ILR 223.
61
But see Bensley (1850), in Moore, 3 Int Arb 3018 (responsibility
denied for the personal act of the governor of a Mexican state).
62
Cf the finding of the International Military Tribunal for the Far East on
the operations by the Japanese Kwantung Army at Nomonhan in 1939,
reproduced in Brownlie, International Law and the Use of Force by
States (1963) 210–11.
63
(1925) 3 ILR 221. Also Metzger (1903) 10 RIAA 417; Roberts (1905) 9
RIAA 204; Crossman (1903) 9 RIAA 356.
64
Viz, the absence of civil or military government in Manila during the
Spanish–American war. The tribunal might seem to overemphasize the
need for failure to control, but the case is different from those in which
unauthorized acts of armed forces occur within the area of established
sovereignty of the state to which the armed forces belong: cf Caire (1929)
5 ILR 146.
65
Henriquez (1903) 10 RIAA 727; Mallén (1927) 4 RIAA
173; Morton (1929) 4 RIAA 428 (murder in a cantina by a drunken officer
off duty); Gordon (1930) 4 ILR 586 (army doctors at target practice with
privately acquired pistol); Ireland v UK [1978] ECtHR 5310/71.
66
67
ICJ Reports 2005 p 168, 242.
Velásquez Rodríquez v Honduras, IACtHR C/4, 29 July 1988, §170.
Also Blake v Guatemala, IACtHR C/36, 24 January 1998.
68
68
Ago, ILC Ybk 1972/II, 126–52; McNair, 2 Opinions 238–73, 277;
Harvard Research Draft (1929) 23 AJIL Sp Supp 133, 188–96.
69
Ziat, Ben Kiran (1924) 2 RIAA 729, 730; Youmans (1926) 4 RIAA
110; Noyes (1933) 6 RIAA 308; Pinson (1928) 5 RIAA 327; Sarropoulos v
Bulgaria (1927) 4 ILR 245.
70
Tehran Hostages, ICJ Reports 1980 p 3, 29–30, 33–6. Short v
Iran (1987) 82 ILR 148. Also Yeager v Iran (1987) 82 ILR 178; Rankin v
Iran (1987) 82 ILR 204.
71
McNair, 2 Opinions 245.
72
Brierly (1928) 9 BY 42; de Frouville, in Crawford, Pellet & Olleson
(2010) 257, 261–4.
73
This may be particularly strict in the case of alleged breach of human
rights: A v UK [1998] ECtHR 25599/94, §22; Velásquez Rodríquez v
Honduras, IACtHR C/4, 29 July 1988, §148.
74
Harvard Research Draft (1929) 23 AJIL Sp Supp 133, 194.
75
ARSIWA, Art 10 & commentary, §§4, 15. Also García-Amador,
ILC Ybk 1957/II, 121–3.
76
Accioly (1959) 96 Hague Recueil 349, 402–3.
77
McNair, 2 Opinions 245. Also García-Amador, ILC Ybk 1957/II, 122.
78
Bolivar Railway Company (1903) 9 RIAA 445; Pinson (1928) 5 RIAA
327.
79
(1931) 2 RIAA 1113, 1141. Also Prince Sliman Bey v Minister for
Foreign Affairs (1959) 28 ILR 79.
80
The basis of responsibility may then rest either on the actual extinction
of the personality of the protected state or on estoppel. Studer(US)v
Great Britain (1925) 6 RIAA 149. Cf agreements for indemnification of the
agent: Zadeh v US (1955) 22 ILR 336; Oakland Truck Sales Inc v
US (1957) 24 ILR 952.
81
(1925) 2 RIAA 615, 648–9. Also Trochelv State of Tunisia (1953) 20
ILR 47.
82
83
Brown (1923) 6 RIAA 120, 130–1.
83
Brownlie, State Responsibility Part I (1983) 189–92. On the question
of complicity Ago, ILC Ybk 1978/II(1), 52–60; ILC Ybk 1978/II(2), 98–105;
ILC Ybk 1979/II(2), 94–106; Quigley (1986) 57 BY 77; Aust, Complicity
and the Law of State Responsibility (2011).
84
But see Anglo-Chinese Shipping Co Ltd v US (1955) 22 ILR 982, 986.
85
ICJ Reports 1992 p 240, 258–9; ibid, 301 (President Jennings, diss).
86
Australia–Nauru Settlement, 10 August 1993, 32 ILM 1471.
87
UK Agreement, 24 March 1994, in UKMIL (1994) 65 BY 625.
88
ICJ Reports 2007 p 43, 217.
89
ARSIWA, commentary to Art 16, §§3–6.
90
Brownlie (1983) 157–8; ARSIWA, Art 11 & commentary.
91
ICJ Reports 1980 p 3, 29–30, 33–6.
92
ARSIWA, commentary to Art 6, §6.
93
Oppenheim 501. Further: Kelsen, Principles of International Law (2nd
edn, 1952) 199–201.
94
Corfu Channel, ICJ Reports 1949 p 4, 85–6 (Judge Azevedo).
95
The Jessie (1921) 6 RIAA 57; The Wanderer (1921) 6 RIAA 177; The
Kate (1921) 6 RIAA 188; The Favourite (1921) 6 RIAA 82.
96
Borchard (1929) 1 ZaöRV 223, 225; Schachter (1982) 178
Hague Recueil 1, 189; Gattini (1992) 3 EJIL 253; Cheng, General
Principles of Law as Applied by International Courts and Tribunals (1994)
218–32.
97
Neer (1926) 6 RIAA 60, 61.
98
Roberts (1926) 6 RIAA 77, 80.
99
Caire (1929) 5 RIAA 516.
100
101
Ibid, 529.
Reports by García-Amador, ILC Ybk 1956/II, 186; ILC Ybk 1957/II,
106. This was the approach ultimately adopted in ARSIWA, commentary
to Art 2, §§1–4. But see Gattini (1999) 10 EJIL 397.
102
102
Eagleton (1928) 209; Lauterpacht (1937) 62 Hague Recueil 95, 359;
Ago (1939) 68 Hague Recueil 415, 498; Accioly (1959) 96
Hague Recueil 349, 364.
103
Casablanca (1909) 11 RIAA 119; Cadenhead (1914) 6 RIAA
40; Iloilo (1925) 6 RIAA 158, 160; Pugh (1933) 3 RIAA 1439; Wal-Wal
Incident (1935) 3 RIAA 1657. Also: Davis (1903) 9 RIAA 460,
463; Salas (1903) 10 RIAA 720.
104
Home Missionary Society (1920) 6 RIAA 42, 44.
105
Chattin (1927) 4 ILR 248, 250. Also Spanish Zone of Morocco (1925)
2 RIAA 615, 644.
106
Accioly (1959) 96 Hague Recueil 349, 369.
107
Prats (1868), in Moore, 3 Int Arb 2886, 2895; Russian
Indemnity (1912) 11 RIAA 421, 440. Further: Cheng (1994) 218–32.
108
Corfu Channel, ICJ Reports 1949 p 4, 18. But see ibid, 65 (Judge
Badawi, diss) supporting a doctrine of fault which was in fact based on
the notion of the unlawful, voluntary act.
109
Ibid, 22.
110
ICJ Reports 1949 p 4, 71 (Judge Krylov, diss), 127 (Judge ad hoc
Ečer, diss).
111
ICJ Reports 2007 p 43, 202.
112
Cf Corfu Channel, ICJ Reports 1949 p 4, 18, 22. Also Lévy (1961)
65 RGDIP 744.
113
García-Amador, ILC Ybk 1960/II 41, 63.
114
(1956) 23 ILR 352.
115
ICJ Reports 1949 p 4, 85 (Judge Azevedo, diss).
116
In re Rizzo (1955) 22 ILR 317, 322. Also: Philadelphia-Girard
National Bank (1929) 8 RIAA 67, 69; Ousset (1954) 22 ILR 312, 314.
117
Baldwin (1842), in Moore, 4 Int Arb 3235; Janes (1926) 4 RIAA
81; Rau (1930), in 1 Whiteman 26.
118
119
Dix (1903) 9 RIAA 119, 121; cf Monnot (1903) 9 RIAA 232, 233.
119
ICJ Reports 1949 p 4, 30.
120
Ibid, 18.
121
Sørensen (1960) 101 Hague Recueil 1, 221; Quadri (1964) 113
Hague Recueil 237, 461; Boyle (1990) 39 ICLQ 1.
122
10 December 1982, 1833 UNTS 396. Further: chapter 13.
123
Akerhurst (1985) 16 NYIL 3; Barboza (1994) 247 Hague Recueil 295;
Brans, Liability for Damage to Public Natural Resources (2001);
Xue, Transboundary Damage in International Law (2003); Voigt (2008)
77 Nordic JIL 1.
124
(1949) 3 RIAA 1905, 1965. See Read (1963) 1 CYIL 213. Also Lac
Lanoux (1957) 12 RIAA 281 (potential harm only not actionable in a
transboundary context).
125
A/61/10, 101. Cf Boyle, in Crawford, Pellet & Olleson (2010) 95.
126
Pulp Mills on The River Uruguay (Argentina v Uruguay), Judgment of
20 April 2010, §§271–6.
127
Koskenniemi (1992) 3 Ybk IEL 123; Treves, Tanzi, Pineschi, Pitea,
Ragni & Jacur, Non-Compliance Procedures and the Effectiveness of
International Environmental Agreements (2009).
128
Caubet (1983) AFDI 99, 107; Dupuy, La Responsabilité internationale
des États pour les dommages d’origine technologique et
industrielle (1976) 189.
129
961 UNTS 187. See Christol (1980) 74 AJIL 346. Damage caused in
Canadian territory by the fall in 1977 of a Soviet satellite, Cosmos 954,
was settled by diplomatic means, including the payment of C$3 million
compensation: 20 ILM 689; Burke (1984) 8 Fordham ILJ 255.
130
Kiss, L’Abus de droit en droit international (1953); Schwarzenberger
(1956) 42 GST 147; Taylor (1972) 46 BY 323; Iluyomade (1975) 16 Harv
ILJ 47; Byers (2002) 47 McGill LJ 389.
131
132
Vargas, Mexican Civil Code Annotated (2009) 653.
Citations oft en involve ex post facto recruitment of arbitral awards,
e.g. Portendick (1843), in 1 Lapradelle & Politis (1905) 512.
133
133
(1926) PCIJ Ser A No 7, 30. The Court added: ‘[s]uch misuse cannot
be presumed, and it rests with the party who states that there has been
such misuse to prove its statement’.
134
(1930) PCIJ Ser A No 24, 12. Also Free Zones of Upper Savoy and
the District of Gex (1932) PCIJ Ser A/B No 46, 94, 167; Electricity
Company of Sofia and Bulgaria (1939) PCIJ Ser A/B No 77, 98 (Judge
Anzilotti); Conditions of Admission of a State to Membership in the United
Nations (Article 4 of Charter), ICJ Reports 1948 p 57, 79 (Judge
Azevedo, diss); Admissibility of Hearings of Petitioners by the Committee
on South West Africa, ICJ Reports 1955 p 65, 120 (Judge Lauterpacht).
135
Lauterpacht, Development (1958) 164. Also Verzijl, 1 International
Law in Historical Perspective (1968) 316–20.
136
Trail Smelter (1941) 9 ILR 315.
137
ARSIWA, Arts 20–5 & commentary. Szurek, in Crawford, Pellet &
Olleson (2010) 427, 475, 481; Ben Mansour, ibid, 439; Ménard, ibid,
449; Thouvenin, ibid, 455; Lesaffre, ibid, 469; Heathcote, 491. Also:
Alland, in Spinedi & Simma (1987) 143; Malanczuk, ibid,
197; Salmon, ibid, 235; Elagab, The Legality of Non-forcible CounterMeasures in International Law (1988); Thirlway (1995) 66 BY 1, 70–80.
138
Christakis, in Droit du pouvoir, pouvoir du droit (2007) 223.
139
EC—Tariff Preferences, WTO Doc WT/DS246/AB/R, 7 April 2004,
§88. Also: EC—Hormones, WTO Doc WT/DS26/AB/R & WT/DS48/AB/R,
16 January 1998, §104; Brazil—Aircraft, WTO Doc WT/DS46/ AB/R, 2
August 1999, §§139–41; EC—Sardines, WTO Doc WT/DS231/AB/R, 26
September 2002, §275.
140
Lauterpacht (1958) 363–7.
141
Home Missionary Society (1920) 6 RIAA 42. Cf Yukon Lumber (1913)
6 RIAA 17, 20. Also Brownlie, in Festschrift für FA Mann (1977) 309.
142
Davis (1903) 9 RIAA 460; Salmon, in 3 International Law at the Time
of Its Codification (1987) 371; Bederman (1989) 30 Va JIL 335.
143
UN Secretariat Study, ST/LEG/13, 27 June 1977; Rainbow Warrior
(New Zealand v France) (1990) 82 ILR 499, 551–5.
144
144
American Electric and Manufacturing Co (1905) 9 RIAA 145; Russian
Indemnity (1912) 11 RIAA 421, 443; Lighthouses (1956) 23 ILR 354.
Cf Kelley (1930) 4 RIAA 608; Chevreau (1931) 2 RIAA 1113, 1123.
145
Spanish Zone of Morocco (1925) 2 RIAA 615, 642.
146
Moore, 4 Int Arb 3843.
147
(1912) 12 RIAA 44.
148
ICJ Reports 1997 p 7, 46.
149
(1999) 120 ILR 143.
150
(2007) 46 ILM 40, 228. Also CMS Gas Transmission Company v
Argentina (2005) 44 ILM 1205, 1243.
151
McNair, 3 Opinions 398.
152
Zoller, Peacetime Unilateral Remedies (1984); Elagab (1988).
153
Mexico—Soft Drinks, WTO Doc WT/DS308/AB/R, 6 March 2006,
§78.
154
Cargillv Mexico (2009) 146 ILR 643, 764. Also: Archer Daniels
Midland Co and Tate & Lyle v Mexico (2007) 146 ILR 440, 498–500; Corn
Products International v Mexico (2008) 146 ILR 581, 627–9.
(p. 566) 26 Consequences of an Internationally
Wrongful Act
1. Introduction
In the event of an internationally wrongful act by a state or other subject
of international law, other states or subjects may be entitled to respond.
This may be done by invoking the responsibility of the wrongdoer,
seeking cessation and/or reparation, or (if no other remedy is available)
possibly by taking countermeasures. Cessation and reparation are dealt
with in Part Two of the ILC’s 2001 Articles on Responsibility of States for
Internationally Wrongful Acts (ARSIWA),1 whereas countermeasures are
dealt with in Part Three. There are important differences between them:
cessation and reparation are obligations which arise by operation of law
on the commission of an internationally wrongful act, whereas
countermeasures (if available at all) are an ultimate remedy which an
injured state may take aft er efforts to obtain cessation and reparation
have failed. They are responsive not just to the breach as such but to the
responsible state’s failure to fulfil its secondary obligations, which is why
they are dealt with in Part Three on invocation.
Not all states are entitled to respond to all breaches. For example in
bilateral relations (e.g. as between the parties to a bilateral treaty) only
the parties are presumed to have rights, including standing to object. But
not all legal relations are bilateral and that holds also for responsibility
relations. This too is the subject-matter of Part Three on invocation.2
References
(p. 567) 2. Cessation, Reparation, Invocation
The consequences of international responsibility must be treated with
care. They raise substantial issues as to the character of responsibility
and are far from being a mere appendix. While the systems of
responsibility developed within municipal legal systems may be helpful by
way of analogy, in the sphere of international relations there are
important elements, including the rules as to satisfaction, which might
seem out of place in the law of tort and contract in common law systems,
or in the law of obligations in civil law jurisdictions.
The terminology adopted here largely follows that of the ILC Articles of
2001, with some additions. The term ‘breach of an international
obligation’ denotes an unlawful act or omission. ‘Damage’ denotes
loss, damnum, usually a financial quantification of physical or economic
injury or damage or of other consequences of such a breach. ‘Cessation’
refers to the basic obligation of compliance with international law, which
in principle remains due in spite of any breaches. Cessation is required,
not as a means of reparation but as an independent obligation, whenever
the obligation in question continues to exist. ‘Reparation’ will be used to
refer to all measures which may be expected from the responsible state,
over and above cessation: it includes restitution, compensation, and
satisfaction. ‘Restitution’ refers to restitution in kind, a withdrawal of the
wrongful measure or the return of persons or assets seized illegally.
While restitution and cessation may sometimes overlap—for example, in
the case of release of an individual detained unlawfully—they remain
conceptually distinct. ‘Compensation’ will be used to describe reparation
in the narrow sense of the payment of money in the measure of the
wrong done. The award of compensation sometimes described as ‘moral’
or ‘political’ reparation, terms connected with concepts of ‘moral’ and
‘political’ injury, creates confusion. ‘Injury’ arises from a breach of
a legal duty and in such cases the only special feature is the absence of
a neat method of quantifying loss. ‘Satisfaction’ refers to means of
redressing a wrong other than by restitution or compensation. It may take
a variety of forms, including an apology, trial and punishment of the
individuals responsible, taking steps to prevent a recurrence of the
breach, etc.
Underlying this way of looking at the problem are certain basic
propositions about international responsibility (and about states as the
primary subjects of responsibility). First, international responsibility is
undifferentiated: just as custom and treaty are alternative (and even
complementary) ways of generating obligation, so there is no difference
in principle between responsibility arising, so to speak, ex contractu or ex
delicto.3 For a state party to the UN Convention on the Law of the Sea
(UNCLOS), the obligation to allow innocent passage through the
territorial sea arises by treaty; for the US as a non-party, it arises under
general international law. Materially the obligations (p. 568) are
indistinguishable and it would be odd if a wholly different regime of
responsibility applied to one as compared with the other.4 Secondly, the
regime of responsibility is undifferentiated also in the sense that it applies
to the whole array of obligations under international law. There is no a
priori limit to the content of international obligations, which can range
from rules about navigation of submarines to the protection of the ozone
layer.5 In both cases, the primary point of having the rule is to ensure
performance; the responsible state is not simply given an option to
perform or pay (perhaps unquantifiable) damages. International law fulfils
the function both of a public law system regulating shared resources
(such as the oceans or the atmosphere) and a private law system
covering bilateral (e.g. diplomatic) relations.6
Thirdly, and as a corollary, the function of reparation is, as far as possible,
the restoration of relations reflected in the status quo ante. In Factory at
Chorzów (Merits), the Permanent Court declared that:
The essential principle contained in the actual notion of an illegal act…is that reparation
must, as far as possible, wipe out all the consequences of the illegal act and re-establish
the situation which would, in all probability, have existed if that act had not been
committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding
to the value which a restitution in kind would bear; the award, if need be, of damages for
loss sustained which would not be covered by restitution in kind or payment in place of it
—such are the principles which should serve to determine the amount of compensation
due for an act contrary to international law.7
That was a claim for breach of a bilateral treaty having as its aim the
protection of the interests of the claimant state. It is to be distinguished
from the type of case in which the individual state is seeking to
establish locus standi in order to protect legal interests not identifiable
with itself alone or possibly with any state in particular. In standard cases,
a state protects its own legal interests in seeking reparation for damage
— material or otherwise—suffered by itself or its citizens. As put by
ITLOS in M/V Saiga (No 2):
It is a well-established rule of international law that a State which suffers damage as a
result of an internationally wrongful act by another State is entitled to obtain reparation
for the damage suffered from the State which committed the wrongful act and that
‘reparation must, as far as possible, wipe out all the consequences of the illegal act and
reestablish the situation which would, in all probability, have existed if that act had not
been committed’.8
This is complemented, in the case of injury suffered by nationals, by the
rule, enunciated by the Permanent Court in Mavrommatis, that ‘[b]y
taking up the case of one of its subjects and by resorting to diplomatic
action or international judicial proceedings
References
(p. 569) on his behalf, a State is in reality asserting its own rights—its
right to ensure, in the person of its subjects, respect for the rules of
international law’.9 But there are also cases where states seek to
vindicate collective or innominate interests, for example, in the field of
human rights or the environment. A different rule, expressed by the
International Court in its famous dictum in Barcelona Traction, applies to
these cases: ‘[i]n view of the importance of the rights involved, all States
can be held to have a legal interest in their protection’.10 In practice, it
may be difficult to apply reparation to interstate cases in which the
obligations violated protect a community interest. The principle of full
reparation applies generally, but the law has to take account of the entire
range of possibilities.11 In many cases claimants will focus on cessation
and redress to the individuals affected, or on remediation of
environmental harm, without seeking reparation for themselves.12
3. The Forms of Reparation13
(A) Restitution in Kind and Restitutio in Integrum14
To achieve the object of reparation tribunals may give ‘legal restitution’, in
the form of a declaration that an offending act of the executive, legislature
or judicature is unlawful and without international effect.15 Such action
can be classified either as a genuine application of the principle
of restitutio in integrum or as an aspect of satisfaction. Restitution in kind
is a logical means of repairing an injury. Customary law or treaty may
create obligations to which is annexed a power to demand specific
restitution. Thus in Chorzów Factory the Permanent Court took the view
that, the purpose of
References
(p. 570) the Geneva Convention of 1922 being to maintain the economic
status quo in Polish Upper Silesia, restitution was the ‘natural redress’ for
violation of or failure to observe the treaty provisions.16 In imposing
obligations on aggressor states to make reparation for the results of
illegal occupation, the victims may be justified in requiring restitution of
‘objects of artistic, historical or archaeological value belonging to the
cultural heritage of the [retro]ceded territory’.17 It would seem that
territorial disputes may also be settled by specific restitution, although the
declaratory form of judgments of the International Court often masks the
element of restitution.18
Apart from express treaty provisions, restitution in kind, that is, specific
restitution, is exceptional; the vast majority of claims conventions and
agreements to submit to arbitration provide for the adjudication of
pecuniary claims only.19 Writers20 and, from time to time, governments
and tribunals21 assert a right to specific restitution, sometimes quoting
the Chorzów Factory dictum. The International Court reaffirmed in Pulp
Mills that ‘customary international law provides for restitution as one form
of reparation for injury, restitution being the re-establishment of the
situation which existed before occurrence of the wrongful act’.22 But,
while this form of redress has a place in the law, it is difficult to state with
any certainty the conditions of its application, outside of cases in which it
is provided for explicitly.
In Rainbow Warrior, New Zealand demanded the return to custody of two
individuals released from detention by the French government in violation
of a previous settlement. The tribunal understood that this was a case of
cessation, and not of restitution, and went on to find that cessation could
not be granted on the implausible ground that the unfulfilled obligation to
detain had expired in the meantime.23
Tribunals should avoid encouraging the purchase of impunity by the
payment of damages; specific restitution will be appropriate in certain
cases. At the same time,
References
(p. 571) in many situations it may be clear that a remedy which
accommodates the internal competence of governments while giving
redress to those adversely affected is to be preferred: restitution is too
inflexible. ARSIWA Article 35 includes a proviso whereby restitution is
only due if it ‘does not involve a burden out of proportion to the benefit
deriving from restitution instead of compensation’. Two examples from
the jurisprudence of the International Court illustrate the difficulty.
In Arrest Warrant of 11 April 2000(Democratic Republic of the Congo v
Belgium), the Court recognized that a mere declaration of unlawfulness
under international law would be insufficient, and considered that
Belgium was under an obligation to cancel the arrest warrant issued
illegal-ly.24 In Avena and Other Mexican Nationals (Mexico v US),
however, the Court rejected a request to order the cancellation of the
death sentences passed without consular notification or assistance. It
merely established that the US was under an obligation to provide means
for review and reconsideration of sentences issued in violation of the
Vienna Convention on Consular Relations.25 In the latter case, the
difficulties faced by the federal executive in the American political system
had already generated noncompliance with the provisional measures
ordered by the Court.26 These difficulties would only be confirmed in the
US Supreme Court decision in Medellín v Texas.27
(B) Compensation, Damages28
Pecuniary compensation is usually an appropriate and often the only
remedy for injury caused by an unlawful act. Under ARSIWA Article 36
whenever restitution is not possible compensation becomes the standard
consequence for injury, covering ‘any financially assessable damage
including loss of profits’. This is consistent with the long-standing
jurisprudence of international courts, tribunals, and claims commissions.
In its judgment in Gabčíkovo-Nagymaros Project, the Court reaffirmed
the ‘well-established rule of international law that an injured State is
entitled to obtain compensation from the State which has committed an
internationally wrongful act for the damage caused by it’.29
Applying compensation is straightforward enough in the case of material
damages, whether to a state or to its nationals. Starting with the
commissions under the 1794 Jay Treaty, claims commissions and arbitral
tribunals have been established by treaty to
References
(p. 572) rule on claims and determine the extent of damages following
situations of conflict.30 Although the International Court has seldom
awarded damages,31 their jurisprudence has served as a basis both for
lump sum agreements32 and for awards by other international bodies,
such as the Iran–US Claims Tribunal,33 the UN Compensation
Commission,34 and the Eritrea–Ethiopia Claims Commission.35 The
burgeoning jurisprudence of investment tribunals deals almost
exclusively with claims for pecuniary compensation.36
When it comes to quantifying damages, international tribunals face the
same problems as other tribunals as regards indirect damage and deal
with the issues in much the same way.37 The particular context of and the
mode of breach, may determine the approach to damages.38 While
problems of causation may present particular theoretical
difficulties,39 ARSIWA pragmatically avoids the issue, leaving specific
determinations to the particularities of each case. This is consistent with
the practice, for, even if tribunals are often obscure in this respect, there
is a close connection between ‘remoteness’ and ‘measure of damages’,
on the one hand, and substantive rules on the other.
One nonetheless finds important similarities in the reasoning of
adjudicators. In LG&E v Argentina, an ICSID Tribunal considered that the
appropriate amount of damages, given the ‘economic collapse that
affected all assets in the country’, was that of which Argentina’s conduct
was the ‘proximate cause’.40 The same standard was used by the
Eritrea–Ethiopia Claims Commission when deciding which damages to
consider as connected with the violation of ius ad bellum by Eritrea.
While observing that other criteria (‘any direct injury’ and damage
41
‘reasonably foreseeable’) had been used in the past,41 the Commission
noted that if:
a State initiating a conflict through a breach of the jus ad bellum is liable under
international law for a wide range of ensuing consequences, the initiating State will bear
extensive liability
References
(p. 573) whether or not its actions respect the jus in bello…Imposing extensive liability for
conduct that does not violate the jus in bello risks eroding the weight and authority of that
law and the incentive to comply with it, to the injury of those it aims to protect.42
Both tribunals seem to have had in mind the need to adjust the amount of
compensation in such a way that it fits the wrongful conduct. Outside of
the few cases of objective liability,43 it may be that the rule is simply that if
harm is caused by wrongful or negligent conduct, whether or not in the
course of lawful activity, then compensation is payable. The scale of
compensation in cases of lawful activity may be less ambitious than that
applicable to activity unlawful at birth, such as unprovoked attacks or
unlawful expropriations. In SD Myers, Inc v Canada, the tribunal went to
great pains to identify the proportion of the losses suffered by the
claimant which were in fact connected with the period in which Canada
was in breach of its NAFTA obligations.44
There is some debate as to the possibility of ‘punitive’ or ‘penal’ damages
in international law.45 The problem concerns in part the granting of
compensation for breach of legal duties without actual damage, for
example by unlawful but temporary intrusion into the territory or airspace
of another state. The award of compensation in such cases is sometimes
described as ‘penal damages’,46 but this is incorrect: their
characterization by the ILC as ‘moral damages’ is more
accurate.47 Fitzmaurice expressed the view that any breach of treaty
entails the payment of ‘some damages…irrespective of whether the
breach has caused any actual material damage or pecuniary
loss’.48 However, tribunals are cautious in approaching cases of nonmaterial loss, and there is no simple solution to the problem of valuation
of such losses.
In Janes the US presented a claim based on a failure by Mexico to take
adequate steps to apprehend the murderer of an American citizen.49 The
award approached compensation in terms of the damage caused to the
individuals concerned rather than to the US,50 and gave compensation to
the relatives of Janes for the ‘indignity’ caused by the non-punishment of
the criminal.51 However, the US was only claiming ‘on behalf of ’ Janes’
dependants, and the only concern of the Claims Commission was one of
valuation rather than ascription. Although the practice of awarding
‘nominal’ or ‘token’ damages was once common,52 violations of national
honour or dignity will nowadays
References
(p. 574) often be dealt with by satisfaction, agreed with the responsible
state or awarded by a tribunal in the form of a declaratory judgment.53
(C) Satisfaction54
(i) The role of satisfaction
Satisfaction may be defined as any measure which the responsible state
is bound to take under customary law or under an agreement by the
parties to a dispute, apart from restitution or compensation. Satisfaction
is an aspect of reparation in the broad sense. However, it is not easy to
distinguish between pecuniary satisfaction and compensation in the case
of breaches of duty not resulting in death, personal injuries, or damage to
or loss of property. Claims of this sort are commonly expressed as a
claim for an ‘indemnity’, which may create confusion. If there is a
distinction between this and a claim for compensation, it would seem to
be in the intention behind the demand. If it is predominantly that of
seeking a token of regret and acknowledgement of wrongdoing then it is
a matter of satisfaction.
Satisfaction may take many forms, which may be cumulative: apologies
or other acknowledgement of wrongdoing by means of a payment of an
indemnity or a (somewhat outmoded) salute to the flag; the trial and
punishment of the individuals concerned, or the taking of measures to
prevent a recurrence of the harm. In the I’m Alone the Canadian
government complained of the sinking on the high seas of a liquorsmuggling vessel of Canadian registration by a US coastguard vessel, as
the climax to a hot pursuit which commenced outside US territorial waters
but within the inspection zone provided for in the ‘Liquor Treaty’ between
Great Britain and the US.55 The Canadian claim was referred to
Commissioners who reported that the ship ‘although a British ship of
Canadian registry, was de facto owned, controlled, and at the critical
times, managed…by a group of persons acting in concert who were
entirely, or nearly so, citizens of the United States, and who employed
her for the purposes mentioned [i.e. smuggling alcohol]…[I]n view of the
facts, no compensation ought to be paid in respect of the loss of the ship
or the cargo’.56 However the sinking having been unlawful, the
Commissioners recommended
References
(p. 575) that the United States ought formally to acknowledge its illegality, and to
apologize to His Majesty’s Canadian Government therefor; and, further, that as a
material amend in respect of the wrong the United States should pay the sum of $25,000
to His Majesty’s Canadian Government…57
This approach was taken up by the Secretary-General in his ruling on
the Rainbow Warrior affair. The vessel destroyed belonged to
Greenpeace, a Dutch NGO, but its destruction by French agents in the
port of Auckland was a violation of New Zealand’s sovereignty. Besides
ordering compensation, the Secretary-General ruled ‘that the Prime
Minister of France should convey to the Prime Minister of New Zealand a
formal and unqualified apology for the attack, contrary to international
law, on the Rainbow Warrior by French service agents’.58 New Zealand
also demanded that the two agents responsible, who had been
imprisoned after trial in New Zealand, be kept in custody if returned to
France. The Secretary-General ruled that these agents ‘should be
transferred to a French military facility on an isolated island outside of
Europe for a period of three years…[and] prohibited from leaving the
island for any reason, except with the mutual consent of the two
Governments’.59
Thus various modalities of satisfaction continue to be used in modern
state practice, and this is reflected in ARSIWA Article 37 and its
commentary.
A number of ancillary questions remain. It is sometimes suggested that
an affront to the honour of a state or intention to harm are preconditions
for a demand for satisfaction, but this is very doubtful. Such elements
may enter into the assessment of compensation, as also may the failure
to undertake measures to prevent a recurrence of the harm or to punish
those responsible. Measures demanded by way of apology should today
take forms which are not humiliating and excessive.60 There is no
evidence of a rule that satisfaction is alternative to and, on being given,
exclusive of a right to compensation for the breach (parties to a dispute
may, of course, agree otherwise).
(ii) Declaratory judgments61
In some cases a declaration by a court as to the illegality of the act of the
defendant state constitutes a measure of satisfaction (or reparation in the
broad sense). However, international tribunals may give a declaratory
judgment in cases where this is the appropriate and constructive method
of dealing with a dispute and the object is not
References
(p. 576) primarily to give ‘satisfaction’ for a wrong received.62 While the
International Court is unwilling to deal with hypothetical issues and
questions formulated in the abstract, the Permanent Court already
established the practice of giving declaratory judgments,63 and in some
cases, for example those concerning title to territory, it found it
appropriate to give a declaratory rather than an executory form to the
judgment.64 The applicant states in South West Africa were seeking a
declaration that certain legislation affecting the territory was contrary to
the obligations of South Africa under the Mandate.65 In the US Diplomatic
and Consular Staff in Tehran, the Court’s judgment included several
declaratory prescriptions concerning the termination of the unlawful
detention of the persons concerned.66 In Nicaragua the judgment
contained an injunctive declaration ‘that the United States is under a duty
immediately to cease and refrain from all such acts as may constitute
breaches of the foregoing legal obligations’.67
Sometimes it is difficult to separate neatly satisfaction through
declaratory judgments from the Court’s regular adjudicative function.
In Corfu Channel, the International Court declared that the minesweeping operation by the Royal Navy in Albania’s territorial waters was
a violation of sovereignty, and then stated: ‘[t]his declaration is in
accordance with the request made by Albania through her Counsel, and
is in itself appropriate satisfaction’.68 In spite of the terminology, this is not
an instance of satisfaction in the usual meaning of the word: the
declaration is that of a court and not a party, and is alternative to
compensation.
In Corfu Channel, no pecuniary compensation had been asked for by
Albania, and a judicial declaration was therefore the only means of giving
an effective decision on this aspect of the matter.69 But in M/V Saiga (No
2), compensation was effectively sought. Saint Vincent and the
Grenadines claimed damages not only for injury to the vessel flying its
flag and its crew, but also for breach of its rights as the flag state. The
tribunal, however, preferred to award damages for the former injuries,
while considering that for the latter the declaration of illegality constituted
adequate reparation.70
This was also the approach taken by the Rainbow Warrior tribunal. New
Zealand argued that the appropriate reparation for the release of the two
agents responsible for the bombing of the Rainbow Warrior—a breach by
France of the 1986 Ruling of the
References
(p. 577) Secretary-General—was to return the two agents to custody.
While considering that France had indeed violated its commitments, the
tribunal merely
declare[d] that the condemnation of the French Republic for its breaches of its treaty
obligations to New Zealand, made public by the decision of the Tribunal, constitutes in
the circumstances appropriate satisfaction for the legal and moral damage caused to
New Zealand…71
In Genocide (Bosnia and Herzegovina v Serbia and Montenegro), three
findings of violations were considered to ‘constitute appropriate
satisfaction’ to Bosnia and Herzegovina, since ‘the case [was] not one in
which an order for payment of compensation, or…a direction to provide
assurances and guarantees of non-repetition, would be appropriate’.72 In
these cases, the declaratory judgment would seem to be a way for the
Court to provide to the injured party a form of satisfaction which does not
depend on any action by the violator, when another type of reparation
could risk reigniting or aggravating a conflict.
(D) Interest73
Whenever compensation for a violation is due, the question arises
whether interest should be paid, at what rate, and from which date. This
is particularly relevant in cases where compensation is determined by
adjudication, since exhausting local remedies, going through the
adjudication process and obtaining the compensation may take
considerable time. The right to award interest as part of compensation
has been assumed by international tribunals in early
decisions,74 although in many cases interest was refused in the
circumstances of the case.75 More recent tribunals have been more
willing to award interest including compound interest.76
Rates vary widely: sometimes a rate is agreed upon by contract or treaty;
at other times tribunals will apply private international law rules and select
a national rate; other options include applying general principles of
international law or simply principles of fairness and
reasonableness.77 As for the date from which interest starts running,
tribunals are not consistent either: it may be the date when the obligation
became due and owing, the date of the violation or the date damages are
awarded. Again, much depends on the circumstances: tribunals will often
try to find a formula that is
References
(p. 578) not excessively punitive—although thereby running the risk of
under-compensation and of rewarding delay in payment.78
(E) Serious Breaches of Peremptory Norms: Arsiwa
Articles 40 and 41
Although international rules may cover any topic, not all rules have the
same salience. The debate on a hierarchy of norms is vast,79 but few
today would question the notion of obligations erga omnes. The
International Court has noted that the obligations relating to the
prevention and punishment of genocide,80requiring respect for the right to
self-determination,81 as well as relevant obligations determined by
international humanitarian law,82 constitute obligations of this kind.
Likewise, peremptory norms have been a component of the international
legal system since the 1969 Vienna Convention on the Law of Treaties
(VCLT)83 (although the International Court only dared to speak their
name for the first time in 2006).84 The existence of this superior
normative rank entails the question of whether violations of these rules,
and especially ‘gross’ violations of particularly important rules, warrant a
different regime of responsibility than that which corresponds to other
internationally wrongful acts. This was answered in the affirmative in the
1976 version of the Draft Articles on State Responsibility, adopted by the
ILC following the proposals of Special Rapporteur Roberto Ago. Its Article
19(2) provided that ‘the breach of an obligation so essential for the
protection of fundamental interests of the international community’ should
be considered to constitute ‘an international crime’.85
Ago never proposed any consequences to the aggravated responsibility
regime, and it is not even clear that all ‘crimes of state’ would in his view
have entailed a single, uniform set of consequences.86 His initial
statement on the issue of the aggravated regime was as follows: ‘the
responsibility flowing from the breach of those [erga omnes] obligations is
entailed not only with regard to the State that has been the direct victim
of the breach…it is also entailed with regard to all other members of the
international community’.87 This is certainly relevant to assess
entitlement to invoke responsibility
References
(p. 579) (see below), and has been retained in ARSIWA in the form of
Article 48; but problems appear regarding the precise object of this
responsibility.
The notion that violations of these obligations would constitute ‘crimes of
state’ for a long time generated heated debate, both within the ILC88 and
in the literature89 before being pragmatically abandoned by the Special
Rapporteur in favour of the notion of ‘serious breaches of obligations
under peremptory norms of general international law’.90 The commentary
quotes the 1946 International Military Tribunal, which affirmed that
‘crimes against international law are committed by men, not by abstract
entities’.91 For all the symbolic overtones lost in this change of
terminology, it has settled the issue to which norms the special regime
applies: they are the same as those accorded peremptory status under
VCLT Articles 53 and 64.92
On closer examination, ARSIWA Articles 40 and 41 provide not so much
a regime of aggravated consequences as one
of additional consequences. These affect in particular the legal status of
situations deriving from the wrongfulness. ARSIWA Article 41 provides
three such consequences. First, all states are to co-operate through
lawful means to bring an end to the violation. Second, all states must
refrain from recognizing as lawful the situation created thereby. Third, no
state may aid or assist the wrongdoer in maintaining the unlawful
situation. No punishment of the state responsible for the grave breaches
is envisaged by the Articles.
Other consequences remain de lege ferenda, and have seen only sparse
practice. A proposed reaction to particularly grave breaches, following the
lead of Special Rapporteur Arangio-Ruiz, is the possibility of the award of
punitive damages.93 But it is far from clear that the concept has any place
in international law, and the case-law certainly does not warrant a general
conclusion that it does.94 In the face of grave breaches in the fields of
human rights and armed conflict, courts and tribunals have refused to
award penal damages. The Inter-American Court has held that ‘although
some domestic courts…award damages in amounts meant to deter or to
serve as an example, this principle is not applicable in international law at
this time’.95 The European Court of Human Rights often observes that it
‘does not award aggravated or punitive damages’.96 The Eritrea–Ethiopia
Claims Commission reduced the potential
References
(p. 580) damages it could have awarded for the violation of ius ad
bellum by Eritrea, arguing that ‘[t]he Parties’ limited economic capacity is
relevant in determining damages claims’, and explaining that
‘[c]ompensation has a limited role which is remedial, not punitive’.97 The
consequences that flow from particularly grave violations are thus not
qualitatively different from those that flow from a breach of any customary
or conventional rule. The distinctive regime of responsibility that exists for
grave violations does not affect reparation, but finds its main effects in
the possibilities open to non-injured states of demanding cessation and
responding to illegality.
4. Invocation of Responsibility98
(A) Evolution of the Law
The question who can invoke the responsibility of a state for a breach of
international law is a disputed one. Early writers, for whom judicial
intervention was truly exceptional, dealt with this matter under the
heading of entitlement to punish a wrong committed against a third state.
Grotius, who saw natural law as standing over the mutual relations of
political entities, asserted a right of sovereigns to punish violations of that
law, even if they have not been especially affected:
[K]ings, and those who possess equal rights to those kings,
have the right of demanding punishments not only on account of
injuries committed against themselves or their subjects, but also
on account of injuries which do not directly affect them but
excessively violate the law of nature or of nations in regard to
any persons whatsoever.99
Vattel argued that for a sovereign ‘to grant reprisals against a nation in
favor of foreigners, is to set himself up as a judge between that nation
and those foreigners; which no sovereign has a right to do…reprisals can
only be granted to maintain the rights of the state’.100 Likewise, the only
states justified in going to war against a violator were those who have
suffered an injury.101 The only exception admitted was in relation to
nations that ‘openly despise justice’, trampling the rights of others
whenever possible. In Vattel’s words: ‘[t]o form and support an unjust
pretension, is only doing an injury to the party whose interests are
affected by that pretension; but, to despise justice in general, is doing an
injury to all nations’.102
References
(p. 581) With the consolidation of international law in the nineteenth
century, the dominant view among positivist international lawyers became
that only states may invoke the responsibility of other states, and only
when specially affected by the breach— that is, the state invoking the
responsibility, or one of its nationals, must have suffered material or
moral injury relating to the wrongful act. This view, reflected in
the Mavrommatis dictum,103 had Anzilotti as one of its early champions
and is still sometimes found among French writers.104 Its classical
formulation is expressed by Anzilotti in 1906:
The law of nations does not award rights to individuals…A State may indeed be obliged
to treat certain individuals in a certain way; but the State’s obligation does not exist vis-àvis individuals, it exists vis-à-vis another State, which holds the right to demand that the
former treat the relevant individuals as desired, and not otherwise.105
This is complemented by the view that the violation of a rule requires
some sort of injury, ‘a disturbance of the interest it protects’,106 and that
only the injured state is entitled to invoke the responsibility of the
wrongdoer. Although the specific theoretical grounds for this have oft en
been disputed,107 international claims which involve direct harm to the
legal rights of the claimant state are relatively uncontroversial, and the
rules discussed above apply. In Reparation for Injuries, the International
Court affirmed that, at least for breaches of obligations owed to individual
states, ‘only the party to whom an international obligation is due can bring
a claim in respect of its breach’.108 These rules are reflected in ARSIWA
Article 42(a) and (b)(i).
But it may happen that individual states ground a claim either in a broad
concept of legal interest or in special conditions which give the individual
state locus standi in respect of legal interests of other entities. In
the South West Africa cases109 Ethiopia and Liberia asked the Court to
affirm the status of South West Africa as a territory under mandate and to
declare that South Africa had violated various articles of the Mandate
Agreement and Article 22 of the Covenant of the League of Nations in
consequence of aspects of its administration of South West Africa, in
particular, the introduction of apartheid. South Africa submitted that
Ethiopia and Liberia had no locus standi in the proceedings.
In 1962, the Court accepted jurisdiction over the dispute, skimming over
the issue of locus standi and concentrating on the fact that the claim
corresponded to what had been provided for in Article 7 of the Mandate
Agreement. It fell to the dissenting
References
(p. 582) judges to call attention to the issue of the legal interest of the
claimants.110 In 1966, however, the view of the previously dissenting
judges was to prevail.111 In considering the argument that interpretation
of the Mandate should proceed in the light of the necessity for
effectiveness in the system of supervision, the Court said:
[T]he argument amounts to a plea that the Court should allow the equivalent of an ‘actio
popularis’, or right resident in any member of a community to take legal action in
vindication of a public interest. But, although a right of this kind may be known to certain
municipal systems of law, it is not known to international law as it stands at present.112
The Court said that it did not decide on whether there could be claims for
non-material or non-tangible interests, making specific reference to
‘agreements of a humanitarian character’.113 It affirmed that ‘[s]tates may
have a legal interest in vindicating a principle of international law, even
though they have, in the given case, suffered no material prejudice, or
ask only for token damages…[but] such rights or interests, in order to
exist, must be clearly vested in those who claim them, by some text or
instrument, or rule of law’.114 As this was not the case, the claims were
rejected.
A similar issue could have arisen in Northern Cameroons (Cameroon v
UK), but the Court rejected Cameroon’s request for a declaratory
judgment based on the absence of practical effect of any such
declaration.115 The major shift in the Court’s position came in the form of
an obiter dictum in Barcelona Traction, a dispute concerning wrongful
treatment of an investment made in Spain by a company incorporated in
Canada. Belgium claimed standing to exercise diplomatic protection of its
nationals, who comprised a vast majority of the shareholders of the
Canadian company, and demanded reparation for the damage. The
Court said:
When a State admits into its territory foreign investments or foreign nationals, whether
natural or juristic persons, it is bound to extend to them the protection of the law and
assumes obligations concerning the treatment to be afforded them. These obligations,
however, are neither absolute nor unqualified. In particular, an essential distinction
should be drawn between the obligations of a State towards the international community
as a whole, and those arising vis-à-vis another State in the field of diplomatic protection.
By their very nature the former are the concern of all States. In view of the importance of
the rights involved,
References
(p. 583) all States can be held to have a legal interest in their protection; they are
obligations erga omnes.116
The Court went on to explain that erga omnes obligations derive ‘in
contemporary international law, from the outlawing of acts of aggression,
and of genocide, as also from the principles and rules concerning the
basic rights of the human person, including protection from slavery and
racial discrimination’.117
Simma refers to the Barcelona Traction judgment as ‘a great leap
forward’:118 it was certainly a leap, but since it evaded the (thencontroversial) issue of peremptory norms, it might equally be described
as a great leap sideways. A number of requests for declaratory
judgments have since been made in cases brought by states that were
not specially injured. But, as the International Court has so far applied the
usual, fairly restrictive rules regarding jurisdiction and admissibility of
claims, its effects have been limited. In Nuclear Tests (Australia v
France)119 Australia asked the Court to declare that the carrying out of
nuclear tests in the South Pacific was ‘not consistent with applicable rules
of international law’.120 Four judges were of the opinion that the purpose
of the claim was to obtain a declaratory judgment.121 The majority of the
judges thought otherwise and, in the light of a French undertaking not to
continue tests, held that the dispute had disappeared and that, since
damages had not been requested, there was no need for a
judgment.122 In East Timor, Portugal claimed its rights as an
administering power but also invoked the right of the people of East
Timor to self-determination. The Court recognized the erga omnes nature
of the obligation to respect self-determination, only to dismiss the
application, made against Australia, on the grounds that it could not
decide on the matter without determining the lawfulness of the conduct of
Indonesia. The latter had not accepted the compulsory jurisdiction of the
International Court of Justice, and, in the Court’s view, ‘the erga
omnes character of a norm and the rule of consent to jurisdiction are two
different things’.123
In these cases much turns on the interpretations of the relevant
adjudication clause, the definition of a dispute, and notions of judicial
propriety. However, assuming that the hurdles of jurisdiction, admissibility,
and propriety are surmounted, there is no inherent limitation of the
concept of legal interest to ‘material’ interests. Thus states acting in
collective self-defence, or a war of sanction against an aggressor, would
seem
References
(p. 584) to have a claim for costs and losses.124 ‘Protective’ claims in
respect of ‘dependent’ peoples may have special features; for example, a
tribunal should be reluctant to reject a claim on account of prescription or
laches of the protecting sovereign.
Other possibilities are open, in particular in the field of environmental law.
Australia’s application against Japan for whaling activities in the Antarctic
Ocean presents a clear case of a state filing an application without being
either injured or specially affected. The remedies sought by Australia are
in consequence not focused on reparation for any damage, but go
beyond a mere declaration, and demand specific orders for cessation of
the allegedly unlawful conduct and assurances of non-repetition.125
(B) Arsiwa Articles 42 and 48
In the cases examined above one can observe a marked difference
between the remedies that are requested and granted in cases of claims
made by non-injured states, when compared to those usually requested
by injured states. In the latter case, the claimant state may demand, for
injury done to itself or to its nationals, reparation in the form of restitution,
compensation, and satisfaction. This holds true even when the injury in
question is not material—the problem then is one of valuation of the
injury; reparation is equally a possibility in cases in which the substantive
rules invoked are geared primarily to protecting a ‘collective interest’, so
long as the state invoking responsibility can be identified as specifically
injured.126
Cases in which the state invoking the responsibility of the violator is not
individually injured may present more difficulties. On the one hand, the
claimant cannot be ‘made whole’, since it has not suffered damage in the
first place; even if ‘punitive damages’ for violations of particular rules
could be contemplated, it would be hard for tribunals to calibrate these in
order not to overburden the responsible state. On the other hand,
empowering all states that feel aggrieved by the violation of a multilateral
treaty to react by means of countermeasures could generate pernicious
effects for political stability and undermine the function of international
law as a system that regulates interstate relations.
The ILC did not adopt in its codification work the vocabulary proposed by
the last Special Rapporteur, distinguishing between states holding a
‘right’ and those having merely a ‘legal interest’.127 But it still agreed with
the establishment of two different regimes of invocation, one for injured
states, in Article 42, and the second for other (‘non-injured states’) in
Article 48. An injured state, as explained by the
References
(p. 585) commentary, ‘is entitled to resort to all means of redress
contemplated in the arti-cles’.128 It may demand reparation of the injury
and cessation of the conduct, and it may resort to countermeasures in
order to demand the fulfilment by the violator of its legal obligations.
‘Injured state’, here, refers both to states to which the obligation is owed
individually, for example, for violations of the law of diplomatic relations or
of a commercial treaty, and to states which are ‘specially affected’ by an
obligation owed to a group of states or to the international community as
a whole.129 A state may also be injured if the obligation breached is of the
so-called ‘interdependent’ type—an obligation the violation of which by
any state ‘radically changes the position of all the other States to which
the obligation is owed with respect to the further performance of the
obligation’.130
For other states, Article 48 envisages a much more limited scope of
action. First, responsibility may only be invoked by a state to which the
obligation is owed and which has some sort of interest in its fulfilment—
either because the obligation in question, owed to a group of states,
protects a collective interest of the group, or because it is an erga
omnes obligation, which is due not to any state in particular but to the
international community as a whole. What may be demanded from the
violator by a non-injured state is, in accordance with Article 48(2), merely:
(a) cessation of the internationally wrongful act, and assurances
and guarantees of non-repetition in accordance with the preceding
articles, in the interest of the injured State or of the beneficiaries of
the obligation breached; and
(b) performance of the obligation of reparation in accordance with
the preceding articles, in the interest of the injured State or of the
beneficiaries of the obligation breached.
This is coherent with the practice, noted above, of invocation by states of
the responsibility of other states for breaches of humanitarian and
environmental obligations. But perhaps the most relevant impact of the
distinct responsibility regimes for injured and non-injured states relates
not to what the latter may request from a court, but to the options open to
each group to take measures in reaction to illegality.
(C) Countermeasures131
Countermeasures constitute one of the most distinctive aspects of
international law when compared to domestic legal systems. In essence,
the term refers to the possibility for a state to resort to ‘private justice’
when its demands for cessation of an illegal conduct and/or adequate
reparation are not met by the wrongdoer. The wronged state may
References
(p. 586) then respond by taking measures which would in principle violate
its duties to the latter state, but which are regarded as lawful due to their
character as countermeasures.
While the terminology of countermeasures is relatively recent, early
international lawyers already considered that, in the absence of
compulsory jurisdiction, sovereigns could take justice into their own
hands. Thus Grotius considered that a state which does not receive
reparation for injury done to itself or its nationals may justly seize goods
of the wrongdoing state and its nationals to recover the loss. Additionally,
both Grotius and Vattel accepted reprisals as an ‘enforcement of
right’,132 the right of nations ‘to do themselves justice’.133 The use of
armed force by a state to enforce its rights was accepted until the
beginning of the twentieth century, and it was only in the 1907 Hague
Conference that contracting states agreed not to have recourse to armed
force for the recovery of contract debts.134 For other cases, however,
reprisals were still permitted. In the Naulilaa arbitration, the tribunal
explained that ‘[a] reprisal is an act of self-help (Selbsthilfhandlung) of the
injured State, which responds to…an act contrary to the law of nations
commited by the wrongdoing State. Its effect is to suspend momentarily,
in the relations between the two States, the observation of this or that
rule of the law of nations’.135
With the growing restrictions on the use of force as an instrument of
foreign policy in the twentieth century, the vocabulary of ‘reprisals’,
comprising both the use of force and other measures short of such use,
was replaced by two different concepts: self-defence, now dealt with in
ARSIWA Article 21, and countermeasures, contained in Article 22.
Whereas most responses will fall under countermeasures, self-defence,
authorizing the use of force, applies only to an incoming armed attack.
This was confirmed by the International Court in Nicaragua. The Court
affirmed:
While an armed attack would give rise to an entitlement to collective self-defence, a use
of force of a lesser degree of gravity…could not justify counter-measures taken by a third
State, the United States, and particularly could not justify intervention involving the use of
force.136
Countermeasures thus do not admit of the use of force, even in response
to a ‘use of force of a lesser gravity’. They nonetheless retain the
essence of the idea expressed by the Naulilaa tribunal: permitting a state
to resort to what would otherwise be internationally wrongful conduct in
order to enforce its rights vis-à-vis another state. The concept has been
well explained by the arbitral tribunal in the Air Service Agreement:
Under the rules of present-day international law, and unless the contrary results from
special obligations arising under particular treaties, notably from mechanisms created
within the framework of international organisations, each State establishes for itself its
legal situation
References
(p. 587) vis-à-vis other States. If a situation arises which, in one State’s view, results in
the violation of an international obligation by another State, the first State is entitled,
within the limits set by the general rules of international law pertaining to the use of
armed force, to affirm its rights through ‘counter-measures’.137
Countermeasures are of course not unconditionally lawful. A series of
requirements exist to prevent the unrestrained use of countermeasures
and to avoid the danger of escalation of the conflict. Thus, before
resorting to countermeasures a state that finds itself injured must call
upon the wrongdoing state to cease the wrongful conduct, if it is
continuing, and to make reparation for any injury.138 ARSIWA Article
52(1) adds the requirement to formally notify the responsible state of the
decision to take countermeasures, as well as the need to offer to
negotiate.
Additionally, given that countermeasures are an instrument to exert
pressure on the responsible state precisely in the absence of an impartial
adjudicator they must not be taken while a dispute is pending before an
international adjudicative organ. As the tribunal in Air Services
Agreement noted, ‘[t]o the extent that the tribunal has the necessary
means to achieve the objectives justifying the counter-measures, it must
be admitted that the right of the Parties to initiate such measures
disappears’.139 The tribunal must be capable of exercising, for example
by way of interim measures, the function that would otherwise be that of
a countermeasure. Thus in the High-Fructose Corn Syrup dispute Mexico
took countermeasures against the US for the breach of a NAFTA
obligation, after having had its access to a NAFTA panel blocked by US
inaction. The effective blocking of the NAFTA panel by the US, which
refused to appoint its panel member, arguably entitled Mexico to take
countermeasures under general international law—although the tribunal
rejected the actual measures taken on various grounds.140
A central requirement of countermeasures is that they must
be proportional to the wrongful conduct. Many measures which are
claimed to be countermeasures are found by tribunals to be out of
proportion with the initial offence. Thus, in the Naulilaa arbitration, the
tribunal found an ‘evident disproportion’ between the killing of two
German officials in the Portuguese fort of Naulilaa and the subsequent
attack and destruction of six other forts by German
forces.141 In Gabčíkovo-Nagymaros, the International Court found that
the unilateral assumption of control over a large percentage of the waters
of the Danube was not ‘commensurate with the injury suffered,
References
(p. 588) taking account of the rights in question’.142 Conversely, in the Air
Service Agreement arbitration, the tribunal, taking into account the rights
violated and the positions of the parties, found that there was no
compelling evidence that the measures taken by the US had been
‘clearly disproportionate when compared to those taken by France’.143 It
thus accepted the legality of the countermeasures taken by the US.
In all of these cases, it must be noted, countermeasures were employed
in response to an injury done to the state that adopted them. ARSIWA
Article 49, following the opinion expressed by the International Court
in Nicaragua, provides that (except for an armed attack giving rise to
collective self-defence) only a state injured by the violation may resort to
countermeasures against the wrongdoer.144 ARSIWA Article 54, which
regulates the response of non-injured states, limits their legitimate
reaction to ‘lawful measures…to ensure cessation of the breach and
reparation’. These lawful if unfriendly measures, such as suspending aid
and expelling an ambassador, are known as retorsion. Being lawful,
retorsion is available to any state at any time to express disapproval
towards the conduct—whether or not unlawful—of another state.
One may ask, however, whether some illegalities, and in particular
‘serious breaches of peremptory norms’, do not entail a right to take
countermeasures in the collective interest. The strong emphasis on
bilateralism that accompanied the consolidation of international law until
the Second World War, however, led to their marginalization, and the
developments in international law after the creation of the UN were not
sufficient to endow the notion of crimes of state with a concrete content in
terms of responsibility. While the notion of international crimes was finally
dropped, the need for ‘a different regime of responsibility’145 was taken
into account by the last Special Rapporteur, who accordingly maintained
a proposal for third-party countermeasures in his Fourth Report.146
But strong reactions from many states, concerned in particular with the
potential for arbitrariness in imposition of third-party countermeasures,
led the ILC to adopt a mere saving clause, leaving the issue open.147 The
commentary lists a number of occasions when states did take
countermeasures in response to injuries done to third states or to grave
breaches. Its conclusion, however, is that the law on the matter is
‘uncertain’ and that there is ‘no clearly recognized entitlement of [noninjured states] to take countermeasures in the collective interest’.148 The
final text falls short of legitimizing third-party countermeasures in
response to grave violations, and has been criticized for that.149
References
(p. 589) It is perhaps an exaggeration to claim, as Alland does, that the
choice was ‘between the subjectivism of a decentralized response in
defence of general interests and the absence of any consequences for
the most serious wrongful acts’.150 There is broad agreement that
mechanisms and institutions for collective reaction to grave violations
must be put in place and those that exist improved. But it is far less
certain that a helpful way to protect the collective interest is by entrusting
the protection of collective interests to individual states, acting based on
their own understanding of international legality. Simma’s conclusion
appears appropriate:
It is precisely in these instances that the neuralgic points of the
development from bilateralism to community interest will
become visible: the grafting upon traditional international law of
innovative, and entirely positive, conceptions, and, at the same
time, the surrender of these concepts to the mercy of individual
auto-determination and auto-enforcement.151
Footnotes:
1
Appended to GA Res 56/83, 12 December 2001.
2
For analysis of ARSIWA on this point see Crawford, in Fastenrath et al
(eds), From Bilateralism to Community Interest: Essays in Honour of
Judge Bruno Simma (2011) 224.
3
The distinction, associated with the topic of ‘crimes of state’, was
debated by the ILC since the 1976 draft, but excluded from the final
version. Crawford, ILC Ybk 1998/II(1), 9–23; Crawford, in Crawford,
Pellet & Olleson (eds), The Law of International Responsibility (2010) 17.
For earlier literature see also Weiler, Cassese & Spinedi, International
Crimes of State (1989). Further: chapter 27.
4
ARSIWA, Art 12 & commentary. This does not, of course, prevent
states from designing particular regimes of responsibility by treaty:
ARSIWA, Art 55 & commentary.
5
SS Wimbledon (1923) PCIJ Ser A No 1, 25.
6
See Simma (1994) 250 Hague Recueil 217, 229–55.
7
(1928) PCIJ Ser A No 17, 47.
8
(1999) 120 ILR 143, 199, citing Factory at Chorzów (Merits) (1928)
PCIJ Ser A No 17, 47.
9
Mavrommatis Palestine Concessions (1924) PCIJ Ser A No 2, 12.
10
Barcelona Traction, Light and Power Company, Limited (Belgium v
Spain), ICJ Reports 1970 p 3, 32.
11
Further: Tomuschat (1993) 241 Hague Recueil 209, 353–68; Crawford
(2006) 319 Hague Recueil 325, 421–51.
12
Tams, Enforcing Obligations Erga Omnes in International Law (2005);
Gaja, in Crawford, Pellet & Olleson (2010) 941; Vaurs-Chaumette, ibid,
1023.
13
Generally: Eagleton (1929) 39 Yale LJ 52; Whiteman, Damages in
International Law (1937–43); García Amador, ILC Ybk 1961/II, 2–45;
Bollecker-Stern, Le Préjudice dans la théorie de la responsabilité
internationale (1973); Gray, Judicial Remedies in International
Law (1987); Shelton (2002) 96 AJIL 833; ARSIWA, Art 34 & commentary;
and the essays in Crawford, Pellet & Olleson (2010) part IV, section 1.
14
Baade (1960) 54 AJIL 801, 814–30; García Amador, ILC Ybk 1961/II,
17–18; Wortley (1961) 55 AJIL 680; Jiménez de Aréchaga (1978) 159
Hague Recueil 1, 285–6; Schachter (1982) 178 Hague Recueil 9, 190–1;
Gray (1987) 95–6. Also ARSIWA, Art 35 & commentary; Gray, in
Crawford, Pellet & Olleson (2010) 599.
15
Such action has become important in the jurisprudence of the IACtHR.
E.g. Barrios Altos v Peru IACtHR C/75, 14 March 2001, §51.
Also: Almonacid Arellano v Chile, IACtHR C/154, 26 September
2006; Gomes Lund v Brazil, IACtHR C/219, 24 November 2010. On a
similar trend in the ECtHR: Nifosi-Sutton (2010) 23 Harv HRJ 52. Outside
human rights law this is unusual, but see Martini (1930) 2 RIAA 975,
1002. Also: McNair, 1 Opinions 78; Barcelona Traction, Preliminary
Objections, ICJ Reports 1964 p 6; Barcelona Traction, Second Phase,
ICJ Reports 1970 p 4; South West Africa (Ethiopia v South Africa;Liberia
v South Africa), Second Phase, ICJ Reports 1966 p 3, 32 (with particular
reference to the apartheid laws).
16
(1927) PCIJ Ser A No 8, 28. Cf Italy v FRG (1959) 29 ILR 442, 474–
6; Amoco International Finance v Iran (1987) 83 ILR 500.
17
Italian Peace Treaty, 10 February 1947, 49 UNTS 3, Arts 12, 37, 78,
Annex XIV, §4; cf Franco-Ethiopian Railway Co (1957) 24 ILR 602.
Further: part III of the Agreement on Reparation from Germany, on the
Establishment of an Inter-Allied Reparation Agency and on the
Restitution of Monetary Gold, 14 January 1945, 555 UNTS 70, §A.
18
Legal Status of Eastern Greenland (1933) PCIJ Ser A/B No
53; Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1961 p
17. In the latter the Court found inter alia that Thailand was obliged to
restore to Cambodia any sculpture, stelae, fragments of monuments, and
pottery which might have been removed by the Thai authorities. In fact
nothing was shown to have been removed and Cambodia did not press
the point at the time.
19
Also General Act for the Pacific Settlement of International Disputes,
26 September 1928, 93 LNTS 342, Art 32; Revised General Act, 28 April
1949, 71 UNTS 101, Arts 1, 17.
20
Especially: Mann (1977) 48 BY 1, 2–5; Verzijl, 6 International Law in
Historical Perspective (1973) 742.
21
Walter Fletcher Smith (1927) 2 RIAA 913, 918; Greece v Bulgaria
(Treaty of Neuilly) (1933) 7 ILR 91, 99. In these two awards restitution
was not considered appropriate for practical reasons. Cf Interhandel
(Switzerland v US), ICJ Reports 1959 p 6. Also: BP Exploration Company
(Libya) Ltd v Libyan Arab Republic (1973) 53 ILR 297 (restitutio in
integrum not favoured); Texaco v Libyan Arab Republic (1977) 53 ILR
389 (restitutio affirmed as a principle); LIAMCO v Libyan Arab
Republic (1982) 62 ILR 140 (restitutio not favoured).
22
Pulp Mills on the River Uruguay (Argentina v Uruguay), 20 April 2010,
§273.
23
(1990) 20 RIAA 215, 268–71.
24
ICJ Reports 2002 p 3, 32.
25
ICJ Reports 2004 p 12, 60, 72.
26
ICJ Reports 2003 p 77.
27
(2008) 552 US 491, 525: ‘[t]he President has an array of political and
diplomatic means available to enforce international obligations, but
unilaterally converting a non-self-executing treaty into a self-executing
one is not among them. The responsibility for transforming an
international obligation arising from a non-self-executing treaty into
domestic law falls to Congress’. See Charnovitz (2008) 102 AJIL 551.
28
Further: Salvioli (1929) 28 Hague Recueil 231, 235–86; Yntema
(1924) 24 Col LR 134. Gattini (2002) 13 EJIL 161; Shelton, Remedies in
International Human Rights Law(2005); Marboe, Calculation of
Compensation and Damages in International Investment Law (2009);
Barker, in Crawford, Pellet & Olleson (2010) 599.
29
29
ICJ Reports 1997 p 7, 81. Also M/V Saiga (No 2) (1999) 120 ILR 143,
199. Chorzów Factory (1928) PCIJ Ser A No 17, 47.
30
For a summary of their work: Gray (1987) 5–58.
31
Ibid, 77 (Wimbledon), 83 (Corfu Channel); Ahmadou Sadio Diallo
(Guinea v Democratic Republic of the Congo), Compensation, Judgment
of 19 June 2012, §56 (where the Court took account of post-judgment
interest). Damages are reserved in Armed Activities on the Territory of
the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports
2005 p 168, 257, were refused in Fisheries Jurisdiction (Federal Republic
of Germany v Iceland), ICJ Reports 1974 p 175, 204, and Land and
Maritime Boundary between Cameroon and Nigeria, ICJ Reports 2002 p
303, 450–3, and were netted off in Gabčíkovo-Nagymaros Project
(Hungary/ Slovakia), ICJ Reports 1997 p 7, 81 (where the Court usefully
distinguished debt from damages).
32
Lillich & Weston (1988) 82 AJIL 69.
33
Drahozal & Gibson (eds), The Iran–US Claims Tribunal at 25 (2007).
34
Heiskanen (2002) 296 Hague Recueil 255.
35
Gray (2006) 17 EJIL 699; Matheson (2010) 9 LPICT 1.
36
Crawford (2010) 25 ICSID Rev-FILJ 127.
37
Cheng, General Principles of Law as Applied by International Courts
and Tribunals (1994) 233–40.
38
Dix (1903) 9 RIAA 119, 121, and cf Jennings (1961) 37 BY 156;
Salvioli (1929) 28 Hague Recueil 231, 268. On causation see also Cheng
(1994) 241–53.
39
Bollecker-Stern (1973) 177–359.
40
25 Jul y 2007, §50, available at www.italaw.com.
41
Decision No 7: Guidance Regarding Jus Ad Bellum Liability (2007) 26
RIAA 1, 12–15.
42
Final Award—Eritrea’s Damages (2009) 26 RIAA 505, 600–1.
43
E.g. damage caused by space objects: chapter 25.
44
(2002) 8 ICSID Reports 3.
45
45
Eagleton (1929) 39 Yale LJ 52; García Amador, ILC Ybk 1956/II, 211–
12; Jorgensen (1998) 68 BY 247; Wittich, in Crawford, Pellet & Olleson
(2010) 667.
46
Lusitania (1924) 18 AJIL 361, 368; Moke (1868), in Moore, 4 Int
Arb 3411. Also: Cheng (1994) 235–8; Gray (1987) 26–8.
47
ARSIWA, Arts 31, 36, with commentary.
48
(1936) 17 BY 82, 109.
49
(1925) 4 RIAA 82.
50
General Claims Convention (US–Mexico), 8 September 1923, 6 RIAA
7, Art 1.
51
Janes (1925) 4 RIAA 82, 89.
52
Gray (1987) 28–9.
53
See also the ruling of the Secretary-General in Rainbow
Warrior (1986) 74 ILR 241, 271, determining US$7 million in
compensation as a middle-ground solution between the amounts
proposed by France and New Zealand. In the subsequent arbitration,
New Zealand did not claim damages, and the tribunal did not award any
sum by way of compensation. However, the tribunal did recommend the
setting up of a joint fund to promote friendly relations and the making of
an initial monetary payment by France: Rainbow Warrior (New Zealand v
France) (1990) 20 RIAA 215, 272, 274–5. This was paid.
54
Wyler & Papaux, in Crawford, Pellet & Olleson (2010) 623; ARSIWA,
Art 37 & commentary. Further : Bissonnette, La Satisfaction comme
mode de réparation en droit international (1952); Przetacznik (1974)
78 RGDIP 919, 944–74.
55
(1933) 7 ILR 203.
56
Ibid, 206.
57
Ibid. Also Manouba (1913) 11 RIAA 471, 475; Hyde (1935)
29 AJIL 296; Fitzmaurice (1936) 17 BY 82; and for the Panay incident
(1937): 5 Hackworth 687.
58
59
(1986) 19 RIAA 199, 213.
59
Ibid, 214.
60
Cf Stowell, Intervention in International Law (1921) 21–35, on
measures of ‘expiation’ demanded in the past. On
the Tellini incident: Eagleton (1925) 19 AJIL 293, 304. ARSIWA, Art
47(3): ‘[s]atisfaction shall not be out of proportion to the injury and may
not take a form humiliating to the responsible State’.
61
Lauterpacht, Development (1958) 206, 250; de Visscher, Aspects
récents du droit procédural de la Cour internationale de justice (1966)
187–94; Ritter (1975) 21 AFDI 278; Gray (1987) 96–107;
Brownlie, Essays in Honour of Sir Robert Jennings (1996) 557.
62
Arabian-American Oil Co v Saudi Arabia (1963) 27 ILR 117, 144–6.
63
Mavrommatis (1925) PCIJ Ser A No 5, 51; Certain German Interests
in Polish Upper Silesia (1926) PCIJ Ser A No 7, 18; Interpretation of
Judgments Nos 7 and 8 (1927) PCIJ Ser A No 13, 20–1.
64
Eastern Greenland (1933) PCIJ Ser A/B No 53, 23–4, 75.
65
ICJ Reports 1962 p 319; ICJ Reports 1966 p 6.
66
ICJ Reports 1980 p 3, 44–5.
67
Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v US), ICJ Reports 1986 p 14, 146–9. Also Nuclear Tests
(Australia v France), ICJ Reports 1974 p 253, 312–19 (Judges Onyeama,
Dillard, Jiménez de Aréchaga & Sir Humphrey Waldock, joint diss).
68
ICJ Reports 1949 p 4, 35. Also Carthage (1913) 11 RIAA 457,
460; Manouba (1913) 11 RIAA 471, 476; Rainbow Warrior (New Zealand
v France) (1990) 82 ILR 499, 574–7.
69
ICJ Reports 1949 p 4, 113–14 (Judge Azevedo, diss); Aerial Incident
of 27 July 1955 (Israel v Bulgaria), Preliminary Objections, ICJ Reports
1959 p 127, 129–31.
70
M/V Saiga (No 2) (1999) 120 ILR 143, 200.
71
(1990) 20 RIAA 215, 275.
72
Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Serbia and
Montenegro), ICJ Reports 2007 p 43, 239.
73
73
ARSIWA, Art 37 & commentary. Further: Nevill (2007) 78 BY 255;
Lauterpacht & Nevill, in Crawford, Pellet & Olleson (2010) 613–22.
74
Delagoa Bay Railway Company (1900), in 3 Whiteman (1943) 1694,
1703; Dix (1903) 9 RIAA 119, 121; Lindisfarne (1913) 6 RIAA 21,
24; Illinois Central Railroad Co (1926) 4 RIAA 134, 136.
75
Montijo (1875), in Moore, 2 Int Arb 1427; Canadienne (1914) 6 RIAA
29; Pinson (1928) 5 RIAA 327, 329.
76
On compound interest: Nevill (2007) 78 BY 255, 307–29; Ahmadou
Sadio Diallo (Guinea v Democratic Republic of the Congo),
Compensation, Judgment of 19 June 2012, §56.
77
Gotanda (1996) 90 AJIL 40, 50–5.
78
Fellmeth (2010) 13 JIEL 423.
79
Weiler & Paulus (1997) 8 EJIL 545; Koskenniemi, ibid,
566; Salcedo,ibid, 583; Pauwelyn, Conflict of Norms in Public
International Law (2003); Shelton (2006) 100 AJIL 291.
80
Genocide (Bosnia and Herzegovina v Serbia and Montenegro),
Preliminary Objections, ICJ Reports 1996 p 595, 616.
81
East Timor (Portugal v Australia), ICJ Reports 1995 p 90, 102.
82
Legal Consequences of the Construction of a Wallin the Occupied
Palestinian Territory, ICJ Reports 2004 p 136, 199.
83
22 May 1969, 1155 UNTS 331.
84
Armed Activities (DRC v Rwanda), ICJ Reports 2006 p 6, 31–2, and
see chapters 16, 27.
85
ILC Ybk 1976/II(2), 95–6.
86
Spinedi, in Weiler, Cassese & Spinedi (1989) 7, 30–2.
87
Ago, ILC Ybk 1976/II(1), 3, 129.
88
Reports by Special Rapporteurs Ago, Arangio-Ruiz, and Riphagen
and the respective reports of the ILC to the General Assembly.
89
Weiler, Cassese & Spinedi (1989); Abi-Saab (1999)
10 EJIL 339; Gaja,ibid, 365; Pellet, ibid, 425; Crawford, ibid, 435. Also
Jørgensen, The Responsibility of States for International Crimes (2000);
Rao, in Ragazzi (ed), International Responsibility Today (2005).
90
Crawford, ILC Ybk 1998/II(1), 9–23. That the responsibility arising
from violations of these norms is ‘not of a criminal nature’ has been
confirmed by the ICJ: Genocide (Bosnia and Herzegovina v Serbia and
Montenegro), Judgment of 26 February 2007, §170.
91
ARSIWA commentary, part 2, ch III, §5.
92
But cf Cassese, in Crawford, Pellet & Olleson (2010) 415.
93
Arangio-Ruiz, ILC Ybk 1989/II(1), 41. Cf Jørgensen (1997)
68 BY 247; Wittich (2004) 14 Fin YIL 321.
94
Wittich, in Crawford, Pellet & Olleson (2010) 667; Ollivier, ibid, 713.
95
Velásquez Rodríguez v Honduras, IACtHR C/4, 21 July 1989, §38.
96
BB v UK [2004] ECtHR 53760/00, §36.
97
Final Award—Ethiopia’s Damages Claims (2009) 26 RIAA 631, 633–
4.
98
Mbaye (1988) 209 Hague Recueil 223; Simma (1994) 250
Hague Recueil 217, 229–55; Queneudec (1995) 255
Hague Recueil 339; Weiss (2002) 96 AJIL 798; Alland (2002)
13 EJIL 1221; Tams (2005); Brunnée (2005) 36 NYIL 21; Noellkamper
(2009) 16 Indiana JGLS 535; Proukaki, The Problem of Enforcement in
International Law (2010).
99
Grotius, De Iure Belli ac Pacis (1625, ed Tuck 2005) II.xx.§40(1).
100
Vattel, Le Droit des gens (1758, tr Anon 1797) II.viii.§348.
101
Ibid, III.iii.§27.
102
Ibid, II.v.§70.
103
(1924) PCIJ Ser A No 2, 12.
104
Combacau (1986) 31 Archives de Philosophie du Droit 85; Weil
(1992) 237 Hague Recueil 11, 313–69.
105
Anzilotti (1906) 13 RGDIP 5, 6.
106
Ibid, 13.
107
107
E.g. García Amador, ILC Ybk 1956/II, 192–3.
108
Reparation for Injuries Suffered in the Service of the United Nations,
ICJ Reports 1949 p 174, 181–2.
109
Preliminary Objections, ICJ Reports 1962 p 319. Cf Verzijl (1964)
11 NILR 1.
110
South West Africa, Preliminary Objections, ICJ Reports 1962 p 319,
455–7 (Judge Winiarski, diss). Also ibid, 547–9 (Judges Spender &
Fitzmaurice, joint diss); ibid, 569–71 (Judge Morelli, diss).
111
ICJ Reports 1966 p 6. Changes in the composition of the Court
meant that the minority of 1962 now appeared as a majority (the case
was decided 7 to 7, with the casting vote of President Spender). For
comment: Higgins (1966) 42 International Affairs 573; Jennings (1967)
121 Hague Recueil 323, 507–11; de la Rasilla (2008) 2 Int Comm
LR 171. Also on the concept of actio popularis: Scobbie (2002)
13 EJIL 1201.
112
South West Africa, Second Phase, ICJ Reports 1966 p 6, 47.
113
Ibid, 32. Also Preliminary Objections, ICJ Reports 1962 p 319, 424–
33 (Judge Jessup, sep).
114
South West Africa, Second Phase, ICJ Reports 1966 p 6, 32.
115
ICJ Reports 1963 p 15, 27. This is hard to reconcile with Corfu
Channel, ICJ Reports 1949 p 4, 36. Also: Right of Passage over Indian
Territory (Portugal v India), ICJ Reports 1960 p 6; Gross (1964)
58 AJIL 415, 427–8.
116
ICJ Reports 1970 p 3, 32.
117
Ibid.
118
Simma (1994) 250 Hague Recueil 217, 293.
119
ICJ Reports 1974 p 253. Ritter (1975) 21 AFDI 471.
120
ICJ Reports 1974 p 253, 256. By contrast, New Zealand had
requested a declaration that the tests constituted ‘a violation of New
Zealand’s rights under international law’: Nuclear Tests (New Zealand v
France), ICJ Reports 1974 p 457, 460.
121
121
ICJ Reports 1974 p 253, 312–21 (Judges Onyeama, Dillard, Jiménez
de Aréchaga & Sir Humphrey Waldock, joint diss).
122
Ibid, 270.
123
ICJ Reports 1995 p 90, 102.
124
Koliopoulos, La Commission d’indemnisation des Nations Unies et le
droit de la responsabilité international (2001); Gattini, The UN
Compensation Commission (2002). Also McNair (1936) 17 BY 150, 157;
Brownlie, Use of Force by States (1963) 148.
125
Whaling in the Antarctic (Australia v Japan), Application instituting
procedures (2010) 18.
126
E.g. Genocide (Bosnia and Herzegovina v Serbia and Montenegro),
ICJ Reports 2007 p 43, 65–6, Application of the International Convention
on the Elimination of All Forms of Racial Discrimination (Georgia v
Russia), Preliminary Objections, 1 April 2011, §§16–17.
127
Crawford, ILC Ybk 2000/II(1), 33; Gaja, in Crawford, Pellet & Olleson
(2010) 941–2.
128
ARSIWA, commentary to Art 42, §3.
129
Teheran Hostages, ICJ Reports 1980 p 3, 43; LaGrand (Germany v
US), ICJ Reports 2001 p 466; Avena, ICJ Reports 2004 p 12.
130
Art 42(b)(ii). This reproduces the language of VCLT, Art 60(2)(c).
131
Zoller, Peacetime Unilateral Remedies (1984); Alland, Justice privée
et ordre juridique international (1994); Bederman (2002)
96 AJIL 817; Franck (2008) 102 AJIL 715; Proukaki (2010).
132
Grotius (1646) III.ii.§4.
133
Vattel (1758) II.xviii.§342.
134
International Convention respecting the Limitation of the Employment
of Force for the Recovery of Contract Debts (1907) TS 007/1910 (Cd
5028), Art 1.
135
Naulilaa (1928) 2 RIAA 1011, 1026.
136
ICJ Reports 1986 p 14, 127.
137
137
(1978) 18 RIAA 417, 443.
138
Naulilaa (1928) 2 RIAA 1011, 1026; Gabčíkovo-Nagymaros, ICJ
Reports 1997 p 7, 56.
139
(1978) 18 RIAA 417, 445.
140
Mexico—Soft Drinks, WTO Doc WT/DS308/AB/R, 6 March 2006.
Also: Archer Daniels Midland Co and Tate & Lyle Ingredients v
Mexico (2007) 146 ILR 440, 484–505; Corn Products International v
Mexico (2008) 146 ILR 581, 624–38; Cargill Inc v Mexico (2009) 146 ILR
642, 752–66. Further: Pauwelyn (2006) 9 JIEL 197; Henckels (2008)
19 EJIL 571. On the articulation of different responsibility
regimes: Simma (1985) 16 NYIL 111; Simma & Pulkowski (2006)
17 EJIL 483; Gradoni, Regime Failure nel Diritto Internazionale (2009).
141
(1928) 2 RIAA 1011, 1026.
142
ICJ Reports 1997 p 7, 56.
143
(1978) 18 RIAA 417, 444.
144
ICJ Reports 1986 p 14, 127.
145
Ago, ILC Ybk 1976/II(1), 3
146
Crawford, ILC Ybk 2000/II(1) 3, 106–9.
147
ILC Ybk 2001/I, 112–13.
148
ARSIWA, Art 54 & commentary, §§3–7.
149
Proukaki (2010).
150
Alland (2002) 13 EJIL 1221, 1239.
151
Simma (1994) 250 Hague Recueil 217, 331.
(p. 590) 27 Multilateral Public Order and Issues
1
of Responsibility
1. The Varying Content of Illegality
The law of responsibility has had a precarious existence in a
decentralized system of international relations lacking compulsory
jurisdiction and generally applicable enforcement procedures. Much of
international law consists of rules concerning competence and functional
co-operation, and the most common mechanism for airing and maybe
resolving disputes is not a court or tribunal but diplomatic exchanges and
negotiated settlement. Thus acceptance of the delictual character of
breaches of treaty and of other rules, and the appearance of developed
principles of responsibility focusing on performance or damages rather
than political ‘indemnity’ or ‘satisfaction’, are relatively recent. Customary
international law historically developed through the form of liberties and
prohibitions, and has remained imprecise with respect to the scope and
consequences especially of serious, systemic illegality.
True, the contrast between old and new should not be overdrawn, nor the
capacity of the classical system for innovation completely discounted. In
addition to responsibility for one state’s causing material harm to another,
there were always situations in which illegality was formulated in more
general, per se terms, even within the normal framework of international
responsibility. Acts of trespass, for example temporary intrusion into the
airspace or territorial sea of another state, are delictual without proof of
special damage.2 Indeed the principle pacta sunt servanda implies as
much; in international law a breach of treaty is actionable without proof of
special damage,
References
(p. 591) unless the treaty otherwise provides. There are many cases
where the performance interests of states as promisees greatly outweigh
any material loss they might individually suffer from a breach—this is true
of most environmental treaties and all human rights treaties. The
collective action problem at the international level is serious enough as
things stand, without disabling rules about special damage based on
inappropriate domestic analogies.3
Moreover classical international law accepted that state conduct could
not only be unlawful but invalid, even invalid erga omnes. Any other
position would have amounted to a form of multilateral disarmament in
the face of unilateral action, no matter how outrageous. But beyond those
scenarios, open under the bilateral, ‘billiardball’ international law of the
period from Vattel to Mavrommatis,4 there can now be envisaged broader
possibilities of collective action under law. The process by which these
have emerged has not been based on logic but on some mixture of hope
and experience.5 Both the ILC and the Court have played significant
roles. The trajectory may be marked as follows:
1919:
League of Nations Covenant (embodying responses to breaches of the
Covenant, co-ordinated by the Council);6 1928: Kellogg–Briand Pact
(outlawing use of force in international relations, closing ‘gap’ in the
Covenant);7 1932: Stimson doctrine of non-recognition (propounding
collective non-recognition of Japanese aggression in Manchuria and
puppet state of Manchukuo);8
1936:
Ineffective sanctions against Italy for invasion of Ethiopia (involving
failure and subsequent collapse of League’s collective security system
leading to Second World War);9
1945:
UN Charter (reinstituting a collective security system acceptable to the
US, USSR, and others, reaffirming general prohibition on use of force
in international relations);10
1966:
South West Africa cases (rejecting public interest standing of Ethiopia
and Liberia to determine legality of apartheid in South West Africa);11
References
Inclusion of peremptory norms in VCLT Articles 53, 64 (recognizing
category of norms of general international law from which no
derogation is permissible);12
(p. 592) 1969:
1970:
Barcelona Traction dictum (recognizing analogous (or identical)
category of obligations erga omnes);13
1971:
Namibia Advisory Opinion (confirming validity of General Assembly’s
revocation of mandate; specifying collective non-recognition of South
Africa’s authority over territory);14
1976:
ILC adopts draft Article 19 (recognizing collective interest in certain
fundamental norms, although under the questionable rubric
‘international crimes of states’);15
1990:
Collective action consequential upon Iraqi invasion and purported
annexation of Kuwait (providing for collective non-recognition;
restoration of Kuwaiti sovereignty; machinery for substantial
compensation of affected interests under Security Council auspices);16
1998:
Rome Statute for an International Criminal Court (creating institutional
machinery for the prosecution of certain crimes under international law,
including of state officials);17
1999:
Independence of Timor Leste (achieved despite earlier Indonesian
‘annexation’; collective non-recognition helped keep issue alive);18
2001:
ILC Articles on State Responsibility, Articles 40, 41, 48, 54 (endorsing
consequences for third parties of serious breach of peremptory norms;
implementing Barcelona Traction dictum; reserves possibility of
collective countermeasures);19
2004:
Wall Advisory Opinion (pronouncing ergaomnes illegality of Wall,
indicating consequences for third states, borrowing language from ILC
Article 41);20
References
Congo/Rwanda (Court for the first time explicitly endorsing category of
peremptory norms);21
(p. 593) 2006:
2010:
Kampala Conference (agreeing definition of crime of aggression in ICC
Statute).22
These developments have not been unalloyed or unequivocal. Following
the rather swift and effective response to the Iraq invasion of Kuwait, the
Security Council did nothing to avert the Rwanda genocide (1994). It
stood back during the Iran–Iraq (1980–88) and Eritrea–Ethiopia (1998–
2000) wars, to mention only two examples of catastrophic human
conflicts that could have been stopped. The Security Council’s authority
is both large and at large: it has broad discretion as to the appreciation of
a situation and how to respond to it, with no explicit limitation on its
authority in case of a Chapter VII situation.23 The Charter enjoins it to
have regard to international law,24 but there is no sanction for not doing
so and virtually no recourse if it does not. Perhaps the individual
components of the system—the states, the EU, other actors— may insist
on compliance with fundamental rights as a condition of giving effect to
Security Council sanctions affecting individuals, but even that is
controversial.25 There is a price to be paid for the equivocal relation of
the Security Council to the law and so far there is, it seems, no way of
avoiding paying it.
Furthermore there have been retreats as well as advances. Among the
developments listed above, it was proposed, in draft article 19 of the ILC
Articles on State Responsibility as adopted on first reading in 1996, to
recognize a category of international crimes of state.26 But no penal
consequences could be allowed to flow from this, nor any requirements
of due process: the exercise would have been little more than namecalling and amidst some controversy the category was abandoned.27 Of
course, irrespective of the putative criminality of an act qua act of state,
individual criminal responsibility of those participating (including state
officials) may arise under
References
(p. 594) international law.28 But if sometimes the appropriate maxim
might be reculer pour mieux sauter, sometimes the opposite seems to fit
better!29
2. Objective Consequences of Illegal Acts
In the literature the principle of effectiveness (ex factis ius oritur) is often
set against the principle of legality (ex iniuria ius non oritur).30 A
decentralized custom-based system in which sovereignty is a cardinal
value must necessarily have regard to considerations of effectiveness—
but not at any price. The notion of delicta iuris gentium, as opposed to the
idea of torts as obligations of reparation between tortfeasor and claimant,
has thus developed. A number of elements are now engaged.
(A) Peremptory Norms (Ius Cogens)
Jurists have from time to time attempted to classify rules, or rights and
duties, on the international plane by using terms like ‘fundamental’ or,
with respect to rights, ‘inalienable’ or ‘inherent’. Such classifications have
not had much success, but have intermittently affected the tribunals’
interpretation of treaties. But during the 1960s scholarly opinion came to
support the view that there can exist overriding norms of international
law, referred to as peremptory norms (ius cogens).31 Their key
distinguishing feature is their relative indelibility. According to VCLT
Article 53, they are rules of customary law that cannot be set aside by
treaty or by acquiescence but only through the formation of a subsequent
customary rule of the same character.
The concept of peremptory norms (ius cogens) was accepted by the
ILC32 and incorporated in the final draft on the law of treaties in 1966.
Draft Article 50 provided that: ‘a treaty is void if it conflicts with a
peremptory norm of general international law from which no derogation is
permitted and which can be modified only by a subsequent norm of
general international law having the same character’.33 This was
inelegant
References
(p. 595) in that it appeared to leave open the possibility of a peremptory
norm not having a non-derogable character: the final text of Article 53
(cited below) in this respect is preferable.
The ILC’s commentary makes it clear that ‘derogation’ refers to an
agreement to contract out of rules of general international law.34 Thus an
agreement by a state to allow another state to stop and search its ships
on the high seas would be valid,35 but an agreement with a neighbouring
state to carry out a joint operation against a racial group straddling the
frontier in a manner that would constitute genocide is void, since the
prohibition with which the treaty conflicts is peremptory in character. Aft
er some controversy, the Vienna Conference on the Law of Treaties
reached agreement on a provision, Article 53.36 The principal difference
is that for the purposes of the VCLT a peremptory norm of general
international law is defined as ‘a norm accepted and recognized by the
international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character’.
The least controversial members of this class are the prohibition of the
use of force in Article 2(4) of the Charter,37 of genocide,38 of crimes
against humanity (including systematic forms of racial
discrimination),39 and the rules prohibiting trade in slaves.40 In Barcelona
Traction the International Court drew a distinction between an obligation
of a state arising vis-à-vis another state and an obligation ‘towards the
international community as a whole’—but the list it then gave is
indistinguishable from contemporary catalogues of peremptory norms.
The Court said:
Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning
References
(p. 596) the basic rights of the human person, including protection from slavery and
racial discrimination.41
Other rules that have this special status include the principle of selfdetermination, at least in its application to colonial countries and peoples
or peoples under alien domination.42
The ILC provided its own authoritative synopsis in 2006:
(33) The content of jus cogens. The most frequently cited examples of jus cogens norms
are the prohibition of aggression, slavery and the slave trade, genocide, racial
discrimination apartheid and torture, as well as basic rules of international humanitarian
law applicable in armed conflict, and the right to self-determination. Also other rules may
have a jus cogens character inasmuch as they are accepted and recognized by the
international community of States as a whole as norms from which no derogation is
permitted.43
More authority exists for the concept of peremptory norms than for its
particular consequences.44 But certain suggestions may be made. For
example, if outright state consent cannot derogate from a peremptory
norm, the same must be true for congeners of consent such as
acquiescence. This would imply that protest or recognition are irrelevant
where the breach of a peremptory norm is at issue. Nor, presumably, can
prescription remove the illegality—although at some level it must be
possible for the states concerned to regulate the consequences of such a
breach, provided this is done in a way which does not amount to mere
ratification of the breach.
Moreover, consequences must flow from a breach of a peremptory norm,
beyond the confines of the law of treaties. An aggressor should not
benefit from the rule that belligerents are not responsible for damage
caused to subjects of neutral states in military operations.45 Yet many
problems of application remain, for example with regard to the effect of
self-determination on the transfer of territory. If a state uses force to
implement the principle of self-determination, is it possible to assume that
one peremptory norm is more peremptory than another? Particular
corollaries of the concept are still being explored.46
References
(p. 597) An area where the influence of peremptory norms has so far not
been felt is that of curial jurisdiction. The International Court has gone out
of its way to emphasize that the basic requirements for jurisdiction must
be met, irrespective of the status of the norm relied on. Thus in Armed
Activities (DRC v Rwanda) it said:
The Court observes…that ‘the erga omnes character of a norm and the rule of consent
to jurisdiction are two different things’ (East Timor (Portugal v. Australia), Judgment,
I.C.J. Reports 1995, p. 102, para. 29), and that the mere fact that rights and
obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction
to entertain that dispute.
The same applies to the relationship between peremptory norms of general international
law (jus cogens) and the establishment of the Court’s jurisdiction: the fact that a dispute
relates to compliance with a norm having such a character, which is assuredly the case
with regard to the prohibition of genocide, cannot of itself provide a basis for the
jurisdiction of the Court to entertain that dispute. Under the Court’s Statute that
47
jurisdiction is always based on the consent of the parties…
And it said it not once but twice:
Finally, the Court deems it necessary to recall that the mere fact that rights and
obligations erga omnes or peremptory norms of general international law (jus
cogens) are at issue in a dispute cannot in itself constitute an exception to the principle
that its jurisdiction always depends on the consent of the parties.48
A similar distinction has been maintained, on the whole, with respect to
state immunity, in particular the immunity of serving senior officials from
arrest in third states. In Arrest Warrant the Court was categorical:
The Court has carefully examined State practice, including national legislation and those
few decisions of national higher courts, such as the House of Lords or the French Court
of Cassation. It has been unable to deduce from this practice that there exists under
customary international law any form of exception to the rule according immunity from
criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where
they are suspected of having committed war crimes or crimes against humanity.49
Such decisions confirm that the mere invocation of a peremptory norm is
not an automatic answer to the question at hand: it injects a new element
into the inquiry which may be expected to be influential but not
necessarily decisive.50
References
(p. 598) (B) The Obligation not to Recognize a Situation as
Lawful
Employing the category of ‘serious breach by a State of an obligation
arising under a peremptory norm of general international law’,51 the ILC
Articles of 2001 articulated the following specific consequences:
Article 41
Particular consequences of a serious breach of an obligation under this Chapter
1. States shall cooperate to bring to an end through lawful means any serious
breach within the meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious breach
within the meaning of article 40, nor render aid or assistance in maintaining that
situation.
3. This article is without prejudice to the other consequences referred to in this
Part and to such further consequences that a breach to which this Chapter applies
may entail under international law.
This is very much a residual set of obligations, involving no very
strenuous individual obligation to act on the part of third states. Despite
this, Article 41 is probably as much progressive development as
codification. If there is an element of customary international law here, it
is the element of collective non-recognition, which goes back to the
Stimson doctrine announced at the time of the Manchurian crisis in 1934
—and significantly involving not just League members but also the US, a
non-member.52 This precedent was relied on in the ILC’s commentary to
Article 41:
The Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations affirms this
principle by stating unequivocally that States shall not recognize
as legal any acquisition of territory brought about by the use of
force. As the International Court of Justice held in Military and
Paramilitary Activities, the unanimous consent of States to this
declaration ‘may be understood as an acceptance of the validity
of the rule or set of rules declared by the resolution by
themselves.’53
The principle of non-recognition was confirmed by the Court in Namibia,
but it was qualified in the following significant way:
[T]he non-recognition of South Africa’s administration of the Territory should not result in
depriving the people of Namibia of any advantages derived from international cooperation. In particular, while official acts performed by the Government of South Africa
on behalf of or concerning Namibia after the termination of the Mandate are illegal and
invalid, this invalidity cannot be extended to those acts, such as, for instance, the
registration of births,
References
(p. 599) deaths and marriages, the effects of which can be ignored only to the detriment
of the inhabitants of the Territory.54
The ‘Namibia exception’ has been applied by the European Court of
Human Rights,55 latterly in ways which have tended to make it the rule
rather than the exception.56
The first occasion aft er 2001 on which some of these issues were
judicially tested before the International Court was the Wall advisory
opinion.57 There the Court discussed the existence of consequences for
third states as a result of the breaches by Israel of its obligations ‘to
respect the right of the Palestinian people to self-determination and…
obligations under international humanitarian law and international human
rights law.’58The ‘Separation Barrier’ erected by Israel in the West Bank
encompassed (or when completed, would encompass) most of the Israeli
settlements there, together with most water sources and much vacant
land. The settlements themselves, the Court indicated, were in violation
of Article 49, paragraph 6 of the Fourth Geneva Convention, which
prohibits an occupying power from ‘organiz[ing] or encourag[ing]
transfers of parts of its own population into the occupied territory.’59 The
Wall also raised the risk of ‘creat[ing] a “fait accompli” on the ground that
could well become permanent,’ including, in addition to forced
demographic changes, prejudicing a future frontier between Israel and
Palestine. It would give ‘expression in loco to the illegal measures taken
by Israel with regard to Jerusalem.’60 The Court noted evidence (in the
form of UN and other reports) that the Wall had disrupted economic life
as well as hindering access to medical services.61 Above all, the Wall
prejudiced the right to self-determination of the Palestinian people, which
the Court indicated was recognized in UN practice and by the
agreements and exchanges of letters between Israel and the PLO in the
early 1990s.62 On the evidence before it the Court concluded that the
Wall was not necessary to attain Israel’s security objectives, and thus that
security exceptions under the relevant instruments were not a
justification.63
Turning to the consequences of these findings, the Court noted that the
norms in question constituted rights and obligations erga omnes and then
held that ‘[g]iven the character and the importance of the rights and
obligations involved’, other states were under an obligation not to
recognize the unlawful situation resulting from the construction of the
Wall. Furthermore they were under an obligation not to render aid and
assistance in maintaining the situation thereby created, as well as to see
to it that
References
(p. 600) ‘while respecting the United Nations Charter and international
law…any impediment, resulting from the construction of the wall, to the
exercise by the Palestinian people of its right to self-determination is
brought to an end.’64 In addition, the Court was of the view that the
‘United Nations, and especially the General Assembly and the Security
Council, should consider what further action is required to bring to an end
the illegal situation resulting from the construction of the wall’.65 Although
the Court made no express reference to Articles 40 and 41 it did use,
unacknowledged, formulations drawn from Article 41.
The Court’s approach should be contrasted with the partially dissenting
opinion of Judge Kooijmans. Agreeing on the illegality of the Wall and on
the consequences for Israel as the responsible state, he did not agree on
the consequences for third states. He said:
I must admit that I have considerable difficulty in understanding why a violation of an
obligation erga omnes by one State should necessarily lead to an obligation for third
States. The nearest I can come to such an explanation is the text of Article 41 of the
International Law Commission’s Articles on State Responsibility…
Article 41, paragraph 2, however, explicitly mentions the duty not to recognize as lawful a
situation created by a serious breach…In its commentary the ILC refers to unlawful
situations which—virtually without exception—take the form of a legal claim, usually to
territory…In other words, all examples mentioned refer to situations arising from formal
or quasi-formal promulgations intended to have an erga omnes effect. I have no problem
with accepting a duty of non-recognition in such cases.
I have great difficulty, however, in understanding what the duty not to recognize an illegal
fact involves. What are the individual addressees of this part of [the judgment] supposed
to do in order to comply with this obligation?…The duty not to recognize amounts,
therefore, in my view to an obligation without real substance.66
One can sympathize with the view that an obligation not to recognize a
fact is illusory and insubstantial. But that was not what was at stake with
regard to the Separation Barrier. Article 41, or rather the customary law
obligation it seeks to embody, is not concerned with the recognition of
facts but with their legitimation. States are obliged not to recognize as
lawful a situation created by a serious breach of a peremptory norm. The
recognition as lawful of a regime—whether of apartheid in South Africa or
of other forms of separation or alienation elsewhere—is not just the
recognition of a fact. It legitimates the regime and tends to its
consolidation. The widespread recognition of a regime as unlawful has
the reverse effect—as events have shown. There are, after all, few
enough weapons in the armoury of international law.
References
(p. 601) (C) The Obligation of Putting an End to an
Unlawful Situation
When competent organs of the UN make a binding determination that a
situation is unlawful, the states that are addressees of the relevant
resolution or resolutions are under an obligation to bring that situation to
an end.67Much depends on the precise manner in which such resolutions
spell out the consequences of non-compliance. At the least, this should
involve a ‘duty of non-recognition’, which must be observed irrespective
of or in the absence of any directives from a competent organ of the UN
if, in the careful judgement of the individual state, a situation has arisen
the illegality of which is opposable to states in general.
In 1970 the Security Council adopted Resolution 276 in which it
recognized the decision of the General Assembly to terminate the
mandate of South West Africa and to assume direct responsibility for the
territory until its independence. The General Assembly had also declared
that the South African presence in South West Africa (Namibia), as well
as all later acts by the South African government concerning Namibia,
were illegal and invalid.68 In Resolution 283 (1970) the Security Council
called upon all states to take specific steps in response to the illegality of
the South African presence, including the termination of diplomatic and
consular representation as far as such relations extended to Namibia, the
ending of dealings relating to the territory by state enterprises, and the
withdrawal of financial support from nationals and private corporations
that would be used to facilitate trade or commerce with Namibia.
In Resolution 284 (1970) the Security Council asked the International
Court for an advisory opinion on the following question: ‘[w]hat are the
legal consequences for States of the continued presence of South Africa
in Namibia, notwithstanding Security Council Resolution 276 (1970)’? In
its Opinion the Court considered a variety of issues including the legal
status of the GA resolution by which the Mandate was terminated. The
Court held that as a consequence of SC Resolution 276, which under the
UN Charter generated legal obligations, member states were under an
obligation to recognize the illegality and invalidity of South Africa’s
continued presence in Namibia.69 The Court recognized that the precise
determination of appropriate measures was a matter for the political
organs. Thus the Court would ‘confine itself to giving advice on those
dealings with the Government of South Africa which, under the Charter of
the United Nations and general international law, should be considered
as inconsistent
References
(p. 602) with the declaration of illegality and invalidity made in paragraph
2 of Resolution 276 (1970), because they may imply a recognition that
South Africa’s presence in Namibia is legal’.70 Matters touched upon in
connection with this included treaty relations in cases in which South
Africa purported to act on behalf of or concerning Namibia, diplomatic
relations, and economic dealings. The Opinion excluded acts such as
registration of births, deaths, and marriages from the taint of legal
invalidity. Finally, the Court expressed the view that the illegality of the
situation was opposable to all states and not merely to members of the
United Nations.71
In legal terms the consequences of illegality, including ‘the duty of nonrecognition’, are distinct from the application of economic and military
sanctions, voluntary or mandatory, in compliance with a UN resolution.
Such sanctions were, for example, imposed against Rhodesia following
the Smith regime’s unilateral declaration of inde-pendence.72 Politically
speaking the practical consequences of non-recognition are similar to
non-military sanctions.73 It may be true, as Judge Petrén suggests in his
separate opinion, that the resolutions concerning Namibia impose certain
duties going beyond the requirements of mere non-recognition in general
international law.74
This was explicitly recognized by Judge Kooijmans in his separate
opinion in the Wall, referring to
the second obligation mentioned in Article 41, paragraph 2, namely the obligation not to
render aid or assistance in maintaining the situation created by the serious breach. I…
fully support that part of operative subparagraph (3) (D). Moreover, I would have been in
favour of adding in the reasoning or even in the operative part a sentence reminding
States of the importance of rendering humanitarian assistance to the victims of the
construction of the wall…75
3. An Emerging System of Multilateral Public
Order?76
It was obvious—not least to the dissenters—that the notion of peremptory
norms, once accepted in 1969, could not be confined to the law of
treaties.77 So fundamental
References
(p. 603) a notion as a norm from which states cannot (individually or even
multilaterally) derogate was bound to have consequences beyond the law
of treaties, and so it has proved.78
The developments listed above constitute modest measures in the
direction of objective illegality and its consequences. But it should be
stressed that international law has other functions than the pursuit of
illegality, functions that may well have to be performed concurrently. Thus
unlawful conduct may entail a legal regime that arises by virtue of that
very conduct. For example, an ‘armed conflict’, the initiation of which may
have been a breach of the UN Charter and of customary international
law, will bring into operation most, if not all, of the rules governing the
conduct of war. Similarly, states have in some instances at least operated
according to a principle of effectiveness in circumstances of questionable
legality.79
But with whatever qualifications, the developments which form the
subject of the present chapter are based upon the premise that there are
certain peremptory norms and an acceptance of the corollary that there is
a duty not to recognize as lawful a situation created by a breach of a
peremptory norm. It was thus that the ILC, aft er considerable debate,
included Chapter III (of Part Two) in the Articles on State Responsibility
adopted on second reading in 2001: that Part was eventually entitled
‘Serious Breaches of Obligations under Peremptory Norms of General
International Law’. These normative structures look progressive on paper
but, in certain political circumstances, the result may be to give an
appearance of legitimacy to questionable policies based on objectives
which are (to say the least) collateral to the enforcement of the law. Great
caution is accordingly called for in their implementation.80
References
Footnotes:
1
Rozakis, The Concept of Jus Cogens in the Law of Treaties (1976);
Dugard, Recognition and the United Nations (1987);
Hannikainen, Peremptory Norms (Jus Cogens) in International
Law (1988); Kadelbach, Zwingendes Völkerrecht (1992); Kolb, Théorie
du juscogens international (2001); Tams, Enforcing Obligations Erga
Omnes in International Law (2005); Orakhelashvili, Peremptory Norms in
International Law (2006); Crawford, Creation of States (2nd edn, 2006)
99–105; Dawidowicz, in Crawford, Pellet & Olleson (eds), The Law of
International Responsibility (2010) 677; Jørgensen, ibid,
687; Ollivier, ibid, 703; Vaurs-Chaumette, ibid, 1023.
2
Cf Corfu Channel (UK v Albania), ICJ Reports 1949 p 4.
3
See especially Parry (1956) 90 Hague Recueil 657, 674ff.
4
Mavrommatis Palestine Concessions (1924) PCIJ Ser B No 3, and for
the epochs of international law: chapter 1.
5
Crawford (2006) 319 Hague Recueil 325; further: Daillier in Crawford,
Pellet & Olleson (2010) 37; Koskenniemi, ibid, 45.
6
Covenant of the League of Nations, 28 June 1919, 225 CTS 195.
7
27 August 1928, 94 LNTS 57.
8
8
LNOJ, Sp Supp No 101 (1932) 87–8 (‘it is incumbent upon the
members of the League of Nations not to recognize any situation, treaty
or agreement which may be brought about by means contrary to the
Covenant of the League of Nations or the Pact of Paris’).
9
Talmon, Recognition of Governments in International Law (1996) 102–
3.
10
26 June 1945, 892 UNTS 119.
11
South West Africa (Ethiopia v South Africa;Liberia v South Africa), ICJ
Reports 1966 p 6.
12
VCLT, 22 May 1969, 1155 UNTS 331.
13
Barcelona Traction, Light and Power Company, Limited (Belgium v
Spain), Second Phase, ICJ Reports 1970 p 3, 32.
14
Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276(1970), ICJ Reports 1971 p 16.
15
ILC Ybk 1976/I, 239.
16
E.g. SC Res 660 (1990); SC Res 661 (1990); SC Res 662 (1990); SC
Res 664 (1990), SC Res 665 (1990); SC Res 678 (1990); SC Res 686
(1991).
17
17 July 1998, 2187 UNTS 3.
18
The details of the referendum were agreed in the Agreement between
the Republic of Indonesia and the Portuguese Republic on the Question
of East Timor, 5 May 1999, available
at www.un.org/peace/etimor99/agreement/agreeFrame_Eng01.html.
19
ARSIWA, appended to GA Res 56/83, 12 December 2001.
20
Legal Consequences of the Construction of a Wallin the Occupied
Palestinian Territory, ICJ Reports 2004 p 136.
21
Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v Rwanda), Jurisdiction and
Admissibility, ICJ Reports 2006 p 6, 32, 52.
22
23
ICC Statute, Art 8bis.
23
But see Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia
and Montenegro), Provisional Measures, Order of 13 September 1993,
ICJ Reports 1993 p 325, 400 (Judge ad hoc Lauterpacht): ‘[t]he relief
which Article 103 of the Charter may give the Security Council in case of
conflict between one of its decisions and an operative treaty obligation
cannot—as a matter of simple hierarchy of norms—extend to a conflict
between a Security Council resolution and jus cogens.’
24
UN Charter, Arts 1(1), 24(2), 36(3).
25
See Joined Cases C-402/05 P and C-415/05 P, Kadi & al Barakaat
International Foundation v Council & Commission [2008] ECR I06351; Kadi v European Commission, Judgment of the General Court
(Seventh Chamber) of 30 September 2010 (appeal pending); and further:
Tzanakopoulos, Disobeying the Security Council (2011).
26
ILC Ybk 1996/II(2), 60.
27
ARSIWA, commentary to Art 12, §§5–7. Further: chapter 25.
28
Maison, in Crawford, Pellet & Olleson (2010) 717; and further:
chapter 30.
29
Viz., sauter pour mieux reculer. The original maxim translates as ‘[t]o
run back in order to give a better jump forwards; to give way a little in
order to take up a stronger position’: Brewer, Dictionary of Phrase and
Fable (1898) sv.
30
E.g. Lauterpacht, Recognition in International Law (1947) 427; Wright
(1953) 47 AJIL 365, 368; Cheng, General Principles of Law as Applied by
International Courts and Tribunals (1987, repr 1994) 186–7.
31
Lauterpacht, ILC Ybk 1953/II 90, 154–5, esp §4; Fitzmaurice (1957)
92 Hague Recueil 5, 120, 122, 125; Fitzmaurice (1959) 35 BY 183, 224–
5. Also In re Flesche (1949) 16 ILR 266, 269. For an early
source: Anzilotti, 1 Opere (3rd Italian edn, 1927) 289. Further: North Sea
Continental Shelf (Federal Republic of Germany/ Netherlands; Federal
Republic of Germany/Denmark), ICJ Reports 1969 p 3, 97–8 (Judge
Padilla Nervo), 182 (Judge Tanaka, diss), 248 (Judge Sørensen, diss).
32
32
ILC Ybk 1963/II, 187, 198 (Art 37), 211 (Art 45), 216 (Art 53). Also:
Lauterpacht ILC Ybk 1953/II, 90, 154–5; Fitzmaurice ILC Ybk 1958/II, 20,
27 (Art 17), 40; McNair, Treaties (1961) 213–18.
33
ILC Ybk 1966/II, 172, 247–9, 261 (Art 61), 266 (Art 67).
34
Commentary to Art 50 of the Draft Articles on the Law of Treaties,
ILC Ybk 1966/II, 187, 247–9.
35
Certain peremptory norms—notably the prohibition of the use of force
in international relations— are defeasible by consent, which could
presumably be given by treaty. The interaction between such norms and
the general principle of indefeasibility has not been well articulated. For
the controversy over Art IV of the Treaty of Guarantee, 16 August 1960,
382 UNTS 3. Further: Ehrlich, Cyprus 1958–67 (1974) 37–8, 140, 148–
9; Jacovides (1995) 10 AUJIL & Pol 1221, 1226–7; Hoffmeister, ‘Cyprus’
(2009) MPEPIL; Dinstein, War, Aggression and Self-Defence (5th edn,
2011) 292.
36
UN Conference on the Law of Treaties, 1st Sess, Official Records,
A/CONF.39/11, 26 March–24 May 1968, 293–328. Also Arts 64 (effect on
treaties of a subsequent peremptory norm), 71 (consequences of the
invalidity of a treaty which conflicts with a peremptory norm).
37
McNair (1961) 214–15; Nash (1980) 74 AJIL 418 (discussing US
Department of State Memorandum of December 29, 1979); Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v US), ICJ
Reports 1986 p 14, 100–1. Also Marston (1983) 54 BY 361, 379.
38
Armed Activities (DRC v Rwanda), Jurisdiction and Admissibility, ICJ
Reports 2006 p 6, 32; Genocide (Bosnia and Herzegovina v Serbia and
Montenegro), ICJ Reports 2007 p 43, 111.
39
South West Africa, Second Phase, ICJ Reports 1966 p 6, 298 (Judge
Tanaka, diss), Barcelona Traction, Second Phase, ICJ Reports 1970 p 3,
304 (Judge Ammoun); Namibia, ICJ Reports 1971 p 16, 78–81 (VicePresident Ammoun).
40
Roach and Pinkerton (Case 9647), IACHR 3/87, 22 September 1987,
§54. Also Michael Domingues, IACHR 62/02, 22 October 2002.
41
41
Second Phase, ICJ Reports 1970 p 3, 32. Also East Timor (Portugal v
Australia), ICJ Reports 1995 p 90, 102.
42
Barcelona Traction, Second Phase, ICJ Reports 1970 p 3, 304 (Judge
Ammoun).
43
ILC, Fragmentation of International Law: Difficulties arising from the
Diversification and Expansion of International Law, A/CN.4/L.702, 18 July
2006, §33.
44
See the trenchant comment by Schwarzenberger (1965) 43 Texas
LR 455, who regards the principle as a source of instability in treaty
relations, and the reply by Verdross (1966) 60 AJIL 55. For further
sceptical opinion: Weil (1983) 77 AJIL 413; Virally (1983) 183
Hague Recueil 25, 175–8.
45
McNair, 2 Opinions, 277. Authority also exists for the view that an
aggressor does not acquire title to property acquired even if the
confiscation and requisition were within the Hague Regulations. See
Brownlie, Use of Force (1963) 406.
46
E.g. Gaja (1981) 172 Hague Recueil 271, 290–301 (issues of state
responsibility); Schachter (1982) 178 Hague Recueil 21, 182–4 (rights of
third states to take countermeasures). On self-determination and the use
of force: Crawford (2nd edn, 2006) 134–48.
47
Jurisdiction and Admissibility, ICJ Reports 2006 p 6, 32.
48
Ibid, 50–1.
49
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v
Belgium), ICJ Reports 2002 p 3, 24.
50
Similarly, that certain international crimes or human rights are
peremptory does not mean that any concomitant obligation to prosecute
violations of these norms is equally peremptory, even less that on that
account amnesties for these crimes are by definition prohibited.
See Scharf (1996) 59 LCP 41; O’Brien (2005) 74 Nordic JIL 261; Sterio
(2006) 34 DJILP 373; Freeman, Necessary Evils: Amnesties and the
Search for Justice (2009).
51
ARSIWA, Art 40(1): ‘serious breach’ is defined in Art 40(2) as one
which ‘involves a gross or systematic failure by the responsible State to
fulfil the obligation’.
52
See Crawford (2nd edn, 2006) 75–6, 78, 132–3, with references to
relevant resolutions and declarations.
53
Commentary to Art 41, §(6), citing Nicaragua, ICJ Reports 1986 p 14,
100.
54
Namibia, ICJ Reports 1971 p 16, 56, §125.
55
Loizidou v Turkey (1996) 108 ILR 443; Cyprus v Turkey (2001) 120
ILR 10, 42–5.
56
Demopoulos v Turkey [2010] ECtHR (GC) 46113/99, 3843/02,
13751/02, 13466/03, 14163/04, 10200/04, 19993/04 & 21819/04, §94.
And Ronen, Transition from Illegal Regimes under International
Law (2011).
57
ICJ Reports 2004 p 136.
58
Ibid, 197.
59
Ibid, 183.
60
Ibid, 184.
61
Ibid, 189–92.
62
Ibid, 183.
63
Ibid, 192–4.
64
Ibid, 300.
65
Ibid.
66
Ibid, 231–2.
67
Namibia, ICJ Reports 1971 p 16, 54; and Decree No 1 for the
Protection of the Natural Resources of Namibia, UN Council for Namibia,
approved by GA Res 3295(XXIX), 13 December 1974. Also Loizidou v
Turkey (1996) 108 ILR 443.
68
GA Res 2145(XXI), 27 October 1966. On Namibia see also Crawford
(2nd edn, 2006) 591–6.
69
ICJ Reports 1971 p 16, 54–6, 58 (supported by 11 votes to 4). By 13
votes to 2 it was held that, because the continued presence of South
Africa in Namibia was unlawful, South Africa was under an obligation to
withdraw its administration immediately. Judges Fitzmaurice and Gros
dissented and considered the Mandate not validly terminated. Further:
ibid, 89–100 (Vice-President Ammoun), 119–20 (Judge Padilla Nervo),
133–7 (Judge Petrén), 147–9 (Judge Onyeama), 165–7 (Judge Dillard),
217–19 (Judge de Castro), 295–8 (Judge Fitzmaurice, diss). See Dugard
(1971) 88 S Af LJ 460.
70
Namibia, ICJ Reports 1971 p 16, 55.
71
Ibid, 56.
72
An early instance of collective action under General Assembly and
Security Council auspices was that taken against Southern Rhodesia:
Gowlland-Debbas, Collective Responses to Illegal Acts in International
Law (1990) 179–486.
73
See Namibia, ICJ Reports 1971 p 16, 134–7 (Judge Petrén).
74
Ibid, 148 (Judge Onyeama), 165 (Judge Dillard), 297 (Judge
Fitzmaurice, diss).
75
ICJ Reports 2004 p 133, 231–2.
76
On the cognate debate over constitutionalization see generally:
Orakhelashvili, in Muller & Frishman (eds), The Dynamics of
Constitutionalism in the Age of Globalization (2009) 153; Klabbers,
Peters & Ulfstein, The Constitutionalization of International Law (2009).
77
See the position of France, voting against the VCLT because of Art
53: UN Conference on the Law of Treaties, 2nd Sess, Official
Records A/CONF.39/11/Add.1, 203–4. On ‘relative normativity’: Weil
(1983) 77 AJIL 413.
78
The point was noted in the first edition of this book, even before the
adoption of the VCLT: see Brownlie, Principles of Public International
Law (1st edn, 1966) 417–18.
79
Generally: Touscoz, Le Principed’ effectivité dansl’ordre
international(1964); Lauterpacht, Development (1958) 227ff.
80
Koskenniemi (2001) 72 BY 337; and cf Crawford, in Crawford, Pellet &
Olleson (2010) 931.
Part X The Protection of Individuals and Groups
(p. 607) 28 The International Minimum Standard:
Persons and Property
1. State and Individual: the Search for
Standards
The legal consequences of belonging to a political community with a
territorial base have not changed a great deal since the seventeenth
century, despite changes in the various theories used to describe or
explain the relation. Ties of allegiance, citizenship, and nationality have
provided the basis for the community of the state, whether regarded
primarily as an organic unity expressed in terms of ‘personal’ sovereignty
or as a territorial domain. Modern practice tends toward the latter view,
but has not wholly abandoned the doctrine of Vattel who, in a muchquoted passage, wrote: ‘[w]hoever uses a citizen ill, indirectly offends the
state, which is bound to protect this citizen’.1 This is often described as a
fiction, but the legal relation between a ‘corporate’ legal person and its
members cannot be simply dismissed in this way. Vattel was not
contending that any harm to an alien was as such an injury to the alien’s
state: the link was indirect. In effect the relation of nationality provided a
basis for principles of responsibility and protection.2 In particular, the
state has a legal interest represented by its citizens, and anyone harming
its citizens may have to account to that state in its protective capacity. If
nationals are subjected to injury or loss by another state, then, whether
the harm occurs in the territory of a state, or on the high seas or in outer
space, the state of nationality may present a claim on the international
plane. The conditions on which it may do so were set out in the ILC’s
Articles on Diplomatic Protection (2006), some aspects of which reflect
general international law:3 the ILC did not however deal with the
substantive standards of protection.4
References
(p. 608) The law which has developed under the rubric of diplomatic
protection is now being affected by the jurisprudence of tribunals sitting
under bilateral and multilateral investment treaties. To a considerable
extent the standards involved are those of the particular treaty: the
International Court refused to draw any more general inferences from the
large number of similarly-worded treaties in Barcelona Traction5 and
again, four decades later, in Diallo.6 Nonetheless, some investment
treaties articulate a standard of general international law, notably the
international minimum standard of treatment. This is embodied, for
example, in North American Free Trade Agreement (NAFTA) Article
11057 as interpreted by the member states.8
Thus there are now two discrete streams of authority—one based on the
practice and jurisprudence of diplomatic protection, the other based on
the generic standards in over 2,500 BITs, as applied in some 300
reported or unreported tribunal decisions.9 For the purposes of exposition
the two streams will be presented together, but this is without prejudice to
the need for analysis of the specific context and the basis of claim in
every case.
2. Admission, Expulsion, and Liabilities of
Aliens
Problems of responsibility arise most frequently when aliens and their
assets are stationed on host state territory, and by way of preliminary,
something must be said of the entry of aliens within the state. In principle
this is a matter of domestic jurisdiction: a state may choose not to admit
aliens or may impose conditions on their admission.10
References
(p. 609) Internal economic policies and aspects of foreign policy may
result in restrictions on the economic activity of aliens. National policy
may require prohibition or regulation of the purchase of immovables,
ships, aircraft and the like, and the practice of certain professions by
aliens. Provisions for the admission of aliens in treaties of friendship,
commerce, and navigation are qualified by references to ‘public order,
11
morals, health or safety’.11 BITs normally provide expressly that the
question of admission is one for the law of the host state.12
In principle expulsion of aliens is also within the discretion of the
state,13 but this discretion is not unlimited.14 In particular, the power of
expulsion must be exercised in good faith and not for an ulterior
motive.15 While the expelling state has a margin of appreciation in
applying the concept of ‘ordre public’, this concept is to be measured
against human rights standards.16 The latter are applicable also to
the manner of expulsion.17 In certain conditions expulsion may infringe
the principle of nondiscrimination (racial or religious) which is part of
customary international law.18 Expulsion which causes specific loss to the
national state forced to receive large groups without adequate notice
could ground a claim for indemnity. Finally, the expulsion of persons who
by long residence and exercise of civil rights have acquired prima facie
the effective nationality of the host state is not a matter of discretion,
since the issue of nationality places the right to expel in question.
The International Court considered the issue of expulsion in Diallo. It
concluded that under the ICCPR and the relevant regional human rights
treaty (the African Charter):
the expulsion of an alien lawfully in the territory of a State which is a party to these
instruments can only be compatible with the international obligations of that State if it is
decided
References
(p. 610) in accordance with ‘the law’, in other words the domestic law applicable in that
respect. Compliance with international law is to some extent dependent here on
compliance with internal law. However…[this] is not a sufficient condition. First, the
applicable domestic law must itself be compatible with the other requirements of the
Covenant and the African Charter; second, an expulsion must not be arbitrary in nature,
since protection against arbitrary treatment lies at the heart of the rights guaranteed.19
The Court further underlined the obligation to provide grounds for
expulsion, the prohibition of mistreatment of aliens subject to expulsion,
the obligation to inform without delay the consular authorities of the state
of origin of the aliens pending expulsion, and the obligation to respect the
property rights of those being expelled.20
The liabilities of alien visitors under their own and under the local law can
lead to overlapping and conflicting claims of the state of origin and the
host state in various areas of jurisdiction, including antitrust, labour, and
welfare standards, monetary regulation, and taxation. The principles on
which conflicts of jurisdiction may be approached have been considered
in chapter 21. The point here is to examine the limits of the competence
of the host state in placing liabilities on aliens of a special kind, for
example, duties to serve in the armed forces, militia, or police and to
submit to requisitions in time of emergency.21 The legal position is not in
all respects clear. Thus there is authority to support the rule that an alien
cannot be required to serve in the regular armed forces of the host
state.22 However, in American and Australian practice an alien admitted
with a view to permanent residence or who has participated in the local
political franchise may be conscripted to serve in local militia and also in
forces for external defence.23 The basis for obligations of this kind is the
reciprocity between residence and local protection, on the one hand, and
the responsibilities of a ‘functional’ citizenship. In some cases long
residence and local connections may create a new, effective nationality
opposable to the state of origin (see chapter 23).
3. Requirements for and Standards of
Diplomatic Protection
(A) Overview
The exercise of diplomatic protection of nationals visiting or resident in
foreign countries has subsisted, with changes of terminology and
concept, since the Middle Ages.
References
(p. 611) Modern practice emerged in the late eighteenth century, when
the grant of letters of reprisal, an indiscriminate right of private war, to
citizens harmed by aliens disap-peared.24 It was the nineteenth century
which produced political and economic conditions in which the status of
aliens abroad became a problem of wide dimensions. The history has
been primarily concerned with the conflicts of interest between foreign
investors (represented by their national state) and the more-or-less
exploited hosts to foreign capital. In the century after 1840 some 60
mixed claims commissions were set up to deal with such
disputes.25 Literature on protection of aliens from the point of view of
investor states grew particularly aft er 1890; influential contributions were
made by Anzilotti and the Americans, Moore, Borchard, and Eagleton.26
This area of law has always been controversial. In the period 1945–80,
concepts of economic independence and political and economic
principles favouring nationalization and the public sector made headway.
The legal reasoning offered on precise issues stems from a small number
of general principles and the relations between them. Presumptively the
ordering of persons and assets is an aspect of the domestic jurisdiction of
a state and an incident of its territorial sovereignty.27 Exceptions may be
created by treaty, and in the past immunity for aliens was sometimes
coupled with the privilege of the sending state to maintain a special
system of courts for nationals on the territory of the receiving state
(capitulations).28
In principle, however, the territorial competence of the state subsists, and
the alien is admitted, at discretion, as a visitor with a duty to submit to
local law and jurisdiction. However, residence abroad does not deprive
an individual of the protection of the state of nationality. Diplomatic
protection is best seen as a function of the relation of nationality in the
absence of any better means of security. Where the state authorities
cause injury to the alien visitor, for example in the form of brutality by
police officials, the legal position is clear. The host state is responsible,
but, as a condition for
References
(p. 612) the presentation of the claim by the national state, the alien must
exhaust any remedies available in the local courts.29 The reasons for this
condition of admissibility are practical: claims by individuals are handled
better in municipal courts, governments dislike the multiplication of claims
for diplomatic intervention, and it is reasonable for the resident alien to
submit to the local system of justice. The ILC’s Articles on Diplomatic
Protection reaffirm that ‘diplomatic protection…is the procedure
employed by the State of nationality of the injured person to secure
protection of that person and to obtain reparation for the internationally
wrongful act inflicted.’30 Article 14 purports to codify the customary rule of
exhaustion of local remedies ‘as a prerequisite for the exercise of
diplomatic protection’.31 Article 15 sets out exceptions to the rule,
including where local courts offer no prospect of redress, where
circumstances make it unfair or unreasonable to exhaust the local
remedies and where the respondent state has waived the requirement.32
More difficult are the cases where the alien is harmed by acts or
omissions which are on their face a normal exercise of the competence
of organs of the host state. These situations include the malfunction of
judicial organs dealing with acts which are breaches of the local law
affecting the interests of the alien (‘denial of justice’), and also general
legislative measures, not directed at aliens as such, affecting the
ownership or enjoyment of foreign-owned assets. There has always been
a current of opinion to the effect that the alien, having submitted to the
local law, can only expect treatment on a basis of equality with nationals
of the host state. It is also said that the status of the alien is not the
subject of a privilege, but is simply that of an individual within the
territorial sovereignty and jurisdiction of the host state.33
(B) The National Treatment Standard34
An initial point of agreement is that certain forms of inequality are
admissible. Thus aliens are not entitled to political rights in the host state.
Moreover, the alien must accept local law in regard to regulation of the
economy, including restrictions on employment
References
(p. 613) of aliens in particular types of employment. Access to the courts
must be maintained, but rules in ancillary matters may be modified: thus
an alien need not have access to legal aid and may have to give security
for costs.35 Exceptions may of course be created by treaty, most notably
BITs. Standards of treatment commonly employed in treaties include
national, most-favoured-nation, and fair and equitable treatment.
The national treatment standard was supported by jurists both in Europe
and Latin America prior to 1940,36 by a small number of arbitral
awards,37 and by 17 states at the Hague Codification Conference in
1930.38 At the conference 21 states opposed the standard, although
some had relied on it in presenting claims to international tribunals.39
(C) The International Minimum Standard40
Since the beginning of the twentieth century the preponderant doctrine
has supported an ‘international minimum standard’.41 A majority of the
states represented at the Hague Codification Conference endorsed that
standard, and it was affirmed in the Declaration on Permanent
Sovereignty over Natural Resources in 1962.42The standard is articulated
in BITs, and has been applied by many tribunals and claims
commissions. Thus in the Neer Claim the General Claims Commission
set up by the US and Mexico expressed the position as follows:
[T]he propriety of governmental acts should be put to the test of international
standards…the treatment of an alien, in order to constitute an international delinquency
should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency
of governmental action so far short of international standards that every reasonable and
impartial man would readily recognize its insufficiency.43
References
(p. 614) This passage has become a focus for debate. On the one hand
the NAFTA Tribunal in Mondev said:
A reasonable evolutionary interpretation of Article 1105(1) is consistent both with
the travaux, with normal principles of interpretation and with the fact that, as the
Respondent accepted in argument, the terms ‘fair and equitable treatment’ and ‘full
protection and security’ had their origin in bilateral treaties in the post-war period. In
these circumstances the content of the minimum standard today cannot be limited to the
content of customary international law as recognised in arbitral decisions in the 1920s.44
On the other hand, another NAFTA Tribunal in Glamis Gold said:
Although situations may be more varied and complicated today than in the 1920s, the
level of scrutiny is the same. The fundamentals of the Neer standard thus still apply
today: to violate the customary international law minimum standard of treatment codified
in Article 1105 of the NAFTA, an act must be sufficiently egregious and shocking—a
gross denial of justice, manifest arbitrariness, blatant unfairness, a complete lack of due
process, evident discrimination, or a manifest lack of reasons—so as to fall below
accepted international standards and constitute a breach of Article 1105(1).45
(D) The Two Standards in Perspective
The controversy concerning the national and international standards has
not been finally resolved, and this is not surprising as the two viewpoints
reflect conflicting economic and political interests. Those supporting the
national treatment standard are not committed to the view that municipal
law has supremacy over international law: their position is that, as a
matter of international law, the standard of treatment is to be defined in
terms of equality under the local law. Protagonists of national treatment
point to the role the law associated with the international standard has
played in maintaining a privileged status for aliens and supporting alien
control of large areas of the national economy. The experience of the
Latin American states and others suggests caution in handling the
international standard, but it is necessary to distinguish between, on the
one hand, the content of the standard and its application in particular
cases and, on the other hand, the core principle, which is simply that the
territorial sovereign cannot avoid responsibility by pleading that aliens
and nationals had received equally bad treatment. Conversely, the rules
of international law authorize at least a measure of discrimination, for
example in matters of taxation.
A source of difficulty has been the tendency of some writers and tribunals
to give the international standard too ambitious a content. For example
in Tecmed the tribunal said:
The foreign investor expects the host State to act in a consistent manner, free from
ambiguity and totally transparently in its relations with the foreign investor…The foreign
investor also
References
(p. 615) expects the host state to act consistently, i.e. without arbitrarily revoking any preexisting decisions or permits issued by the state that were relied upon by the investor to
assume its commitments as well as to plan and launch its commercial and business
activities.46
This is an attempt to rewrite the fair and equitable treatment standard by
reference to the hypothetical expectations of one class of participant, as
distinct from using the specific expectations generated through the
parties’ actual course of dealings as relevant to the application of the
standard. Indeed many governments would fail to meet this utopian
standard much of the time.47
Another cause of difficulty has been the extension of delictual
responsibility to the malfunction of administrative and judicial organs, as
in the field of denial of justice. This aspect involves the imposition of the
law of delict where a better analogy would be the use of administrative
law remedies to ensure the proper exercise of legal powers. In regard to
non-exercise or malfunction of legal powers national treatment has some
significance, at least as creating a presumption of absence of malice.48
In short there is no universally applicable standard. Circumstances, for
example, the outbreak of war, may create exceptions to the international
treatment standard, even where this applies in principle. Where a
reasonable care or due diligence standard is applicable,49 it would
represent a more sophisticated version of national treatment. It would
allow for variations in wealth and educational standards between the
various states of the world and yet would not be a mechanical matter, tied
to equality.
Successive attempts have been made to synthesize the concept of
human rights and the principles governing the treatment of aliens. Early
on, García Amador, first ILC Special Rapporteur on state responsibility,
proposed the following formulation:
1. The State is under a duty to ensure to aliens the enjoyment of
the same civil rights, and to make available to them the same
individual guarantees as are enjoyed by its own nationals. These
rights and guarantees shall not however, in any case be less than
the ‘fundamental human rights’ recognized and defined in
contemporary international instruments.
2. In consequence, in case of violation of civil rights, or disregard
of individual guarantees, with respect to aliens, international
responsibility will be involved only if internationally recognized
‘fundamental human rights’ are affected.50
This particular synthesis involves codifying the ‘international minimum
standard’, raising that standard, extending it to new subject-matter, and
relating internal affairs and local law to international responsibility to a
degree which most states would find
References
(p. 616) intolerable.51 It is true that since 1945 a new content for the
international standard based upon those human rights principles which
have become a part of customary international law has arguably
emerged. Yet the world is not governed by tribunals and a careful
synthesis of human rights standards and the modern ‘treatment of aliens’
standards is required.52 Notably, the concept of discrimination calls for
more sophisticated treatment in order to identify unreasonable
discrimination as distinct from the different treatment of non-comparable
situations.53
It was precisely such difficulties that led to Ago’s reformulation of state
responsibility as concerned with ‘secondary rules’: the ILC Articles of
2001 are without prejudice to the substantive content of the international
obligations of states.54
(E) Forms of Delictual Responsibility
The general principles of state responsibility were examined in
chapter 25. They apply to cases where aliens are injured, whether within
or outside the territory of the respondent state. Thus one might expect to
rely upon a rule that a state is liable for failure to show due diligence in
matters of administration, for example by failing to take steps to
apprehend the murderer of an alien. However, the position is more
complex. International law is not a system replete with nominate torts or
delicts, but the rules are specialized in certain respects.
(i) Breach of the fair and equitable treatment standard55
The fair and equitable treatment standard (FET) is an autonomous
standard of investment protection set out in the vast majority of
BITs,56 though in varying formulations.
References
(p. 617) There are four main approaches: (a) a self-standing standard
without additional reference to international law or other criteria;57 (b)
FET defined in ‘accordance with international law’;58 (c) FET linked to the
customary standard of minimum treatment of aliens;59 and (d) FET with
express reference to substantive obligations, for example prohibiting
denial of justice or unreasonable or discriminatory measures.60 Thus the
application of the standard depends on the particular treaty invoked,
although there are common generic questions.
The FET standard has become a focus of interpretation in investment
treaty arbitration, invoked in most of the cases brought. Host state
measures challenged for breach of FET vary widely, including revocation
or non-renewal of licences,61 imposition of new regulatory requirements
by the legislative and executive organs affecting the economic operation
of the investment,62 tax and tariff measures,63 termination, modification
and breach of investment contracts,64 abusive treatment of
investors,65 and denial of justice by both the executive and the
judiciary.66 In ascertaining the meaning and scope of the FET standard,
tribunals have often considered it in its relation to the international
minimum standard of treatment, particularly in the context of NAFTA
arbitration.67 In the substantive protections afforded by the FET standard,
References
(p. 618) tribunals have included protection of investors’ legitimate
expectations,68 non-abusive treatment,69non-arbitrary and nondiscriminatory exercise of public powers,70 and its adherence to due
process requirements.71
One influential formulation of the FET standard in the context of NAFTA,
that is, with reference to the minimum standard of treatment under
customary international law, was given by the tribunal in Waste
Management (No 2)v Mexico:
The minimum standard of fair and equitable treatment is infringed by conduct attributable
to the State and harmful to the claimant if the conduct is arbitrary, grossly unfair, unjust or
idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice,
or involves a lack of due process leading to an outcome which offends judicial propriety
—as might be the case with a manifest failure of natural justice in judicial proceedings or
a complete lack of transparency and candour in an administrative process.72
In a BIT context, the tribunal in Saluka v Czech Republic was called upon
to assess what constituted permissible regulatory action by the Czech
National Bank in the course of the reorganization of the banking sector. It
observed that:
The ‘fair and equitable treatment’ standard in Article 3.1 of the Treaty is an autonomous
Treaty standard and must be interpreted, in light of the object and purpose of the Treaty,
so as to avoid conduct of the Czech Republic that clearly provides disincentives to
foreign investors. The Czech Republic, without undermining its legitimate right to take
measures for the protection of the public interest, has therefore assumed an obligation to
treat a foreign investor’s investment in a way that does not frustrate the investor’s
underlying legitimate and reasonable expectations. A foreign investor whose interests
are protected under the Treaty is entitled to expect that the Czech Republic will not act in
a way that is manifestly
References
(p. 619) inconsistent, non-transparent, unreasonable (i.e. unrelated to some rational
policy), or dis criminatory (i.e. based on unjustifiable distinctions).73
Irregularities in the investor’s conduct have sometimes influenced the
determination of whether a breach of FET has occurred.74 The standard
required for a breach of FET to be found varies depending on the
circumstances (and the decisions are notably inconsistent), but the
holding in SD Myers v Canada is indicative in underlying that
‘determination must be made in light of the high measure of deference
that international law generally extends to the right of domestic
authorities to regulate matters within their own borders’.75
(ii) Denial of Justice76
The term ‘denial of justice’ has sometimes been used to cover the
general notion of state responsibility for harm to aliens,77 but it is better
confined to a particular category of deficiencies on the part of the host
state, principally concerning the administration of justice.78 A helpful
definition was offered by the NAFTA Tribunal in Azinian v United Mexican
States:
A denial of justice could be pleaded if the relevant courts refuse to entertain a suit, if they
subject it to undue delay, or if they administer justice in a seriously inadequate way…
There is a fourth type of denial of justice, namely the clear and malicious misapplication
of the law. This type of wrong doubtless overlaps with the notion of ‘pretence of form’ to
mask a violation of international law. In the present case…the evidence [is] sufficient to
dispel any shadow over the bona fides of the Mexican judgments. Their findings cannot
possibly be said to have been arbitrary, let alone malicious.79
This approach was approved in Mondev v US.80
The most controverted issue is the extent to which erroneous decisions
may constitute a denial of justice. There is authority for the view that an
error of law accompanied
References
(p. 620) by a discriminatory intention is a breach of the international
standard.81 However, it is well established that the decision of a lower
court open to challenge does not constitute a denial of justice and that
the claimant must pursue remedies available higher in the judicial system
as a matter of substance.82
As in other contexts the international standard has been applied
ambitiously by tribunals and writers and difficulties have arisen. First, the
application of the standard may involve decisions upon fine points of
national law and the quality of national remedial machinery.83 In regard to
the work of the courts a distinction is sought to be made between error
and ‘manifest injustice’.84 Secondly, the application of the standard in this
field seems to contradict the principle that the alien, within some limits at
least, accepts the local law and jurisdiction. Thirdly, the concept of denial
of justice embraces many instances where the harm to the alien is a
breach of local law only and the ‘denial’ is a failure to reach a non-local
standard of competence in dealing with the wrong. Thus the concept of
the foreign state wronged in the person of its nationals is extended to
cases where the primary wrong is a breach of municipal law alone. This
is an eccentric application of the principles of responsibility;85 and it
would be better if such claims were regarded as resting on an equitable
basis only. The existence of the rule of admissibility that the alien should
first exhaust local remedies is a reflection of the special character of
denial of justice claims.86
(iii) Expropriation of foreign property87
A state may place conditions on the entry of an alien on its territory and
may restrict acquisition of certain kinds of property by aliens. Apart from
such restrictions, an alien individual, or a corporation controlled by aliens,
may acquire title to property within a state under local law. The subjectmatter may be shares in enterprises, items such as (p. 621) estates or
factories, or, on a monopoly basis, major areas of activities such as
railways and mining. In a number of countries foreign ownership has
extended to proportions of between 50 per cent and 100 per cent of all
major industries, resources and services such as insurance and
banking.88 Even in laissez-faire economies, the taking of private property
for certain public purposes and the establishment of state monopolies
have long been familiar. After the Soviet revolution and the extension of
the public sector in many economies, socialist and non-socialist, the
conflict of interest between foreign investors and their governments and
the hosts to foreign capital, seeking to regain control over their
economies, became more acute. The terminology of the subject is by no
means settled, and in any case form should not take precedence over
substance. The essence of the matter is the deprivation by state organs
of a right of property either as such, or by permanent transfer of the
power of management and control.89 The deprivation may be followed by
transfer to the territorial state or to third parties, as in systems of land
distribution as a means of agrarian reform. The process is commonly
described as expropriation. If compensation is not provided, or the taking
is regarded as unlawful, the taking is sometimes described as
confiscation. Expropriation of one or more major national resources as
part of a general programme of social and economic reform is generally
referred to as nationalization.
State measures, prima facie lawful, may affect foreign interests
considerably without amounting to expropriation. Thus foreign assets and
their use may be subjected to taxation, trade restrictions such as
quotas,90 revocation of licences for breach of regulations, or measures of
devaluation.91 While special facts may alter cases, in principle such
measures are not unlawful and do not constitute expropriation. If the
state gives a public enterprise special advantages, for example by
directing that it charge nominal rates of freight, the resulting de facto or
quasi-monopoly is not an expropriation of the competitors driven out of
business:92 but it might be otherwise if this were the object of a monopoly
regime. Taxation which has the precise object and effect of confiscation is
unlawful but high rates of tax, levied on a non-discriminatory basis, are
not.93 In general there is no expectation that tax rates will not change: a
foreign investor must obtain a clear commitment to that effect, for
example, in a stabilization agreement.
References
(p. 622) A constant difficulty is to establish the line between lawful
regulatory measures and forms of indirect or creeping
expropriation.94 In Pope and Talbot v Canada, the investor argued that a
statutory regime of export control involved a form of expropria-tion.95 The
tribunal held:
The…question is whether the Export Control Regime has caused an expropriation of the
Investor’s investment, creeping or otherwise. Using the ordinary meaning of those terms
under international law, the answer must be negative.…The sole ‘taking’ that the Investor
has identified is interference with the Investment’s ability to carry on its business of
exporting softwood lumber to the US. While this interference has…resulted in reduced
profits for the Investment, it continues to export substantial quantities of softwood lumber
to the US and to earn substantial profits…[T]he degree of interference with the
Investment’s operations due to the Export Control Regime does not rise to an
expropriation (creeping or otherwise) within the meaning of Article 1110.96
In Metalclad, another NAFTA case concerning a refusal to grant a
construction permit and a change of the regime of land to a national area
of protection, the tribunal found that indirect expropriation had taken
place, stating in a much quoted paragraph:
Thus, expropriation under NAFTA includes not only open, deliberate and acknowledged
takings of property, such as outright seizure or formal or obligatory transfer of title in
favour of the host State, but also covert or incidental interference with the use of property
which has the effect of depriving the owner, in whole or in significant part, of the use or
reasonably-to-be-expected economic benefit of property even if not necessarily to the
obvious benefit of the host State.97
This language has been criticized for its breadth and lack of
correspondence to the facts of the case.98
(iv) The compensation rule
The rule supported by all leading ‘Western’ governments and many jurists
in Europe and North America is as follows: the expropriation of alien
property is only lawful if ‘prompt, adequate, and effective
compensation’99 is provided for. In principle, therefore,
References
(p. 623) expropriation, as an exercise of territorial competence, is lawful,
but the compensation rule (in this version) makes the legality conditional.
The justifications for the rule are based on the assumptions prevalent in a
liberal regime of private property and in the principle that foreign owners
are to be given the protection accorded to private rights of nationals,
provided that this protection involves the provision of compensation for
any taking. These assumptions are used to support the compensation
principle as yet another aspect of the international minimum standard
governing the treatment of aliens. The emphasis is on respect for
property rights both as ‘acquired rights’100 and as an aspect of human
rights.101 The principle of acquired rights is unfortunately vague, and the
difficulty is to relate it to other principles of law: in short this and other
general principles beg too many questions.
Whatever the justifications offered for the compensation rule, it has
received considerable support from state practice and international
tribunals.102 Agreements involving provision for some sort of
compensation in the form of the ‘lump sum settlement’ are numerous, but
jurists disagree as to their evidential value: many agreements rest on a
bargain and on special circumstances.103 Although some awards were in
substance diplomatic compromises,104 a good number of international
tribunals have supported the compensation rule and the principle of
acquired rights.105 Dicta in a number of decisions of the Permanent Court
involving treaty interpretation and the effects of state succession on
various categories of property, may be regarded as supporting the
compensation principle.106
References
(p. 624) There are a number of exceptions to the compensation
rule.107 The most widely accepted are as follows: under treaty provisions;
as a legitimate exercise of police power, including measures of defence
against external threats; confiscation as a penalty for crimes;108 seizure
by way of enforcement of unpaid taxation or other fiscal measures; loss
caused indirectly by health and planning legislation and concomitant
restrictions on the use of property; the destruction of property of neutrals
as a consequence of military operations; and the taking of enemy
property as agreed war reparation.109
(v) Expropriation unlawful per se
The position may be summarized as follows:
(1) Expropriation for certain public purposes, for example,
exercise of police power and defence measures in wartime, is
lawful even if no compensation is payable.
(2) Expropriation of property is otherwise unlawful unless there is
provision for the payment of effective compensation.
(3) Nationalization, that is, expropriation of a major industry or
resource, is unlawful if there is no provision for compensation
payable on a basis compatible with the economic objectives of the
nationalization, and the viability of the economy as a whole.
Thus expropriation under (2) and (3) is unlawful only sub modo, that is, if
appropriate compensation is not provided for. The controversial
difference between (2) and (3) is the basis on which compensation is
assessed. Whatever may be the relation of these two categories, there is
evidence of a category of types of expropriation which are illegal apart
from a failure to provide for compensation, in which cases lack of
compensation is an additional element in, and not a condition of, the
illegality. It has been suggested that this category includes interference
with the assets of international organizations110 and taking contrary to
binding promises or (perhaps) legitimate expectations.111 Certainly it
includes seizures which are a part of crimes against
References
(p. 625) humanity or genocide, involve breaches of international
agreements,112 are measures of unlawful retaliation or reprisal against
another state,113 are discriminatory, that is, aimed at particular racial
114
groups or nationals of particular states,114 or concern property owned by
a foreign state and dedicated to public purposes.115
The practical distinctions between expropriation unlawful sub modo and
expropriation unlawful perse would seem to be these: the former involves
a duty to pay compensation only for direct losses, that is, the value of the
property, the latter involves liability for consequential loss (lucrum
cessans);116 the former confers a title which is recognized in foreign
courts (and international tribunals), the latter produces no valid
title.117 The case-law of the Iran–US Claims Tribunal includes
examination of the relevance of the distinction between lawful and
unlawful expropriation in the remedial sphere.118
(vi) Conclusions on expropriation
The Declaration of 1962 places emphasis on the rights of host states and
in a general way contradicts the acquired rights thesis. Its actual
formulations tend to cover up the real differences of opinion by the use of
such terms as ‘appropriate compensation’. But it is significant that the
right to compensation, on whatever basis, is recognized in
principle.119 Since 1962, the climate of opinion has shifted, from the
Charter of
References
(p. 626) Economic Rights and Duties of States,120 via the collapse of the
USSR, to the BIT ‘revolution’, still in spate. The position was summarized
by the tribunal in CME v Czech Republic:
The requirement of compensation to be ‘just’ and representative of the ‘genuine value of
the investment affected’ evokes the famous Hull Formula…That formula was
controversial.…The controversy came to a head with the adoption by the General
Assembly of the United Nations of the ‘Charter of Economic Rights and Duties of
States.’…But in the end, the international community put aside this controversy,
surmounting it by the conclusion of more than 2200 bilateral (and a few multilateral)
investment treaties. These treaties…concordantly provide for payment of ‘just
compensation’, representing the ‘genuine’ or ‘fair market’ value of the property taken.…
These concordant provisions are variations on an agreed, essential theme, namely, that
when a State takes foreign property, full compensation must be paid…The determination
of the compensation on the basis of the ‘fair market val-ue’—to eliminate the
consequences of the wrongful act for which the State is responsible—is acknowledged in
international arbitration.121
In his Separate Opinion, Sir Ian Brownlie concluded with respect to the
Declaration on Permanent Sovereignty over Natural Resources and the
Charter of Economic Rights and Duties that:
Whilst caution must be exercised in evaluating these resolutions, there can be no doubt
that the Cordell Hull formula no longer reflects the generally accepted international
standard…The standard of appropriate or just compensation carries the strong
implication that, in the case of a going concern and more generally, the compensation
should be subject to legitimate expectations and actual conditions.122
According to Brownlie, three considerations are particularly pertinent to
the assessment of compensation in investment law context:
First: the nature of an investment as a form of expenditure or transfer of funds for the
precise purpose of obtaining a return.
Secondly: the element of reasonableness, which rules out the compensation of returns
which go beyond the legitimate expectations of the investor.
Thirdly: the element which derives from the general principle that merely speculative
benefits, based upon unproven economic projections, do not count as investment or as
returns.123
References
(p. 627) 4. Breach and Annulment of State
Contracts
(A) General Principles124
Governments make contracts of various kinds with aliens or foreignowned corporations: loan agreements (including the issue of state
bonds), contracts for supplies and services, contracts of employment,
agreements for operation of industrial and other patent rights under
licence, agreements for the construction and operation of transport or
telephone systems, agreements conferring the sole right, or some
defined right, to exploit natural resources on payment of royalties, and
exploration and production-sharing agreements. Agreements involving
resource exploitation are sometimes described as ‘concession
agreements’, but this is not a term of art and these are not significantly
different from other state contracts. The contracting government may act
in breach of contract, legislate in such a way as to make the contract
worthless (e.g., by export or currency restrictions), use its powers under
domestic law to annul the contract, or repudiate the contract by means
contrary to its own law. What, then, is the position in terms of
international law?
In principle, the position is regulated by the general principles governing
the treatment of aliens. Thus, the act of the contracting government will
entail state responsibility if, by itself or in combination with other
circumstances, it constitutes a denial of justice or an expropriation
contrary to international law. The general view is that a breach of contract
(as opposed to its confiscatory annulment) does not create state
responsibility on the international plane.125 On this view the situation in
which the state exercises its executive or legislative authority to destroy
the contractual rights as an asset comes within the ambit of
expropriation.126 Thus, it is often stated that
References
(p. 628) the annulment is illegal if it is arbitrary or discriminatory.127 These
terms cover two situations. First, action directed against persons of a
particular nationality or race is discriminatory. Secondly, action which
lacks a normal public purpose is ‘arbitrary’. A government acting in good
faith may impose trade restrictions which incidentally (and without
discrimination) lead to the unenforceability of contractual rights. It is
difficult to treat such action as unlawful on the international plane.
There is a school of thought which supports the view that the breach of a
state contract by the contracting government of itself creates international
responsibility.128 Jennings has argued (though with some caution) that
there are no basic objections to the existence of an international law of
contract.129 He points out that in the field of nationality, for example,
rights created in municipal law may be evaluated according to
international law standards. Exponents of the international law character
of state contracts also use arguments based upon the doctrine of
acquired rights130 and the principle of pacta sunt servanda, and refer to
certain decisions of international tribunal.131
However there is little evidence that the ‘internationalized contract’ idea
corresponds to the existing law. Rather, some element is required,
beyond the mere breach of contract, to constitute a confiscatory taking or
denial of justice stricto sensu.132 Most of the arbitral decisions cited for
the ‘internationalized contract’ thesis are not in point, either because the
tribunal was not applying international law or because the decision rested
on some element apart from the breach of contract.133 There is no
evidence that the principles of acquired rights and pacta sunt
servanda have the particular consequences contended for.134 The
arguments based upon acquired rights could be applied to a number of
reliance situations created by the host state by the grant of public rights
such as citizenship or permission to reside or to work. The distinction
References
(p. 629) drawn by partisans of responsibility in contract situations
between loan agreements, concessions, and other contracts is
unsatisfactory.
In the proceedings arising from the Iranian cancellation of the 1933
Concession Agreement between the Iranian government and the AngloIranian Oil Company, the UK contended that violation of an explicit
undertaking in a concession by the government party not to annul was
unlawful per se.135 This view almost certainly does not represent the law
but it is not without merit.136
The issue of breaches and annulment of state contracts is even more
pertinent in the era of investment treaty arbitration. Under BITs,
investment contracts are invoked by reference to the treaty standards of
investment protection.137 It should be underlined however that the
distinction between treaty and contract remains valid in investor-state
arbitration, even with the ‘umbrella clause’. As the tribunal in Waste
Management concluded, the
mere non-performance of a contractual obligation [by the host State] is not to be equated
with a taking of property, nor (unless accompanied by other elements) is it tantamount to
expropriation…[I]t is one thing to expropriate a right under a contract and another to fail
to comply with the contract.138
Special standards are prescribed in NAFTA and virtually all BITs. Article
1105 of NAFTA provides that: ‘[e]ach Party shall accord to investments of
investors of another Party treatment in accordance with international law,
including fair and equitable treatment and full protection and security’.139
(B) Stabilization Clauses140
The term ‘stabilization clause’ relates to any clause contained in an
agreement between a government and a foreign legal entity by which the
government party undertakes not to annul the agreement nor to modify
its terms, either by legislation or by administrative measures. The legal
significance of such clauses is controversial, since the clause involves a
tension between the legislative sovereignty and public interest of
References
(p. 630) the state party and the long-term viability of the contractual
relationship. If the position is taken that state contracts are valid on the
plane of public international law then it follows that a breach of such a
clause is unlawful under international law.141 Another view is that
stabilization clauses as such are invalid in terms of public international
law as a consequence of the principle of permanent sovereignty over
natural resources.142
The problem calls for careful classification. If a state party to a contract
purports to annul it this may, depending on the circumstances, constitute
an expropriation: and the consequences will depend on the general
principles relating to expropriation. The legal position will not, on this
view, depend upon the existence of a stabilization clause. If there is a
provision for arbitration, the issue will be governed either by the express
choice of law (if there is one) or by the choice of law derived by a process
of interpretation. If the choice of law involves elements of public
international law, the arbitral tribunal will then approach the stabilization
clause in the light of all the relevant circumstances, including the history
of the relationship, the conduct of the parties, and the reasonable
expectations of the parties.143 It is to be noted that the tribunal
in Aminoil adopted the view that stabilization clauses were not prohibited
by international law, but gave a cautious interpretation to the particular
undertaking in question. Thus, such a clause could operate but only in
respect of ‘nationalisation during a limited period of time’. In the instant
case, the clause could not be presumed to exclude nationalization for a
period of 60 years.144
(C) The ‘Umbrella Clause’145
Umbrella clauses, whose origins can be traced back to the aft ermath
of Anglo-Iranian Oil Company (UK v Iran) of 1952,146 are now contained
in some 40 per cent of modern BITs. A standard formulation would be a
promise by the host state to comply with obligations assumed. For
instance, the Switzerland–Philippines BIT provides in Article X(2) ‘[e]ach
Contracting Party shall observe any obligation it has assumed with
References
(p. 631) regard to specific investments in its territory by investors of the
other Contracting Party’.147
The meaning and function of umbrella clauses is subject to an ongoing
debate with at least four discernable schools of thought: (a) the first
adopts a very narrow interpretation of umbrella clauses as being
operative only and to the extent that there is an identifiable shared intent
of the parties that any breach of contract is a breach of the BIT;148 (b) the
second purports to limit the application of umbrella clauses to breaches
of contract committed by the host state in the exercise of sovereign
authority;149 (c) according to the third view, umbrella clauses
internationalize investment contracts by automatically transforming
contractual claims into treaty ones;150 (d) the fourth approach stipulates
that umbrella clauses are operative and may serve as the basis for a
substantive treaty claim, but do not ipso iure transform a contractual
claim into a treaty one.151
This fourth view is preferable as it allows for integration between the
treaty terms and the contract, while respecting the construction of the
treaty clause at hand as well as the proper law and dispute settlement
provisions of the contract. In short, umbrella clauses do not erase the
distinction between treaty and contract, but create a shortcut to the
enforcement of contractual claims without internationalizing or
transforming the basis of the underlying obligation. As concluded by the
ad hoc Committee in CMS v Argentina:
The effect of the umbrella clause is not to transform the obligation which is relied on into
something else; the content of the obligation is unaffected, as is its proper law.152
(D) The Relevance of Forum Clauses153
A claim for breach of a contract between an alien and a government will
be decided in accordance with the applicable system of municipal law
designated by the rules of private international law of the forum.
Questions are however raised if the parties to a state contract expressly
choose an applicable law other than a particular system of local law,
either ‘general principles of law’ or public international law.154 A choice by
References
(p. 632) the parties of public international law is assumed by some writers
to place the contract on the international plane, but this cannot be right; a
state contract is not a treaty and cannot involve state responsibility as an
international obligation.155 In practice choice of law clauses in state
contracts oft en specify the local law ‘and such principles and rules of
public international law as may be relevant’, and in face of such clauses
arbitrators have a certain discretion in selecting the precise role of public
international law.156 The tribunal in the case of Aminoil v
Kuwait157 decided that by implication the choice of law was that of
Kuwait, that public international law was a part of the law of Kuwait, and
that in any event considerable significance was to be accorded to the
‘legitimate expectations of the parties’.158
In the context of investment treaty arbitration, Vivendi v
Argentina illustrates the relevance of forum selection clauses. The
dispute arose under a contract between the claimants and a province of
Argentina for the operation of water and sewerage systems. All claims
brought concerned the performance of the contract, which itself conferred
exclusive jurisdiction to the courts of the province. While the BIT Tribunal
upheld its jurisdiction to hear these claims, the ad hoc Committee
partially annulled the award, reasoning:
In a case where the essential basis of a claim brought before an international tribunal is
a breach of contract, the tribunal will give effect to any valid choice of forum clause in the
contract.159
On the other hand, where the ‘fundamental basis of the claim’ is a treaty laying down an
independent standard by which the conduct of the parties is to be judged, the existence
of an exclusive jurisdiction clause in a contract between the claimant and the respondent
state or one of its subdivisions cannot operate as a bar to the application of the treaty
standard…It is one thing to exercise contractual jurisdiction…and another to take into
account the terms of the contract in determining whether there has been a breach of a
160
distinct standard of international law.
References
(p. 633) This may be contrasted with SGS v Philippines where the
tribunal held:
Article X(2) makes it a breach of the BIT for the host State to fail to observe binding
commitments, including contractual commitments, which it has assumed with regard to
161
specific investments.
According to this view, contractual claims under a BIT ought not to be
pursued in breach of an applicable forum selection clause set out in the
contract in question, as by choosing to include this clause in the
investment contract the investor in effect has renounced the right to
arbitrate contract claims in a treaty forum.
References
Footnotes:
1
Vattel, Le Droit des gens (1758, tr Anon 1797) II.vi.§71.
2
But see Barcelona Traction, Light & Power Company, Limited (Belgium
v Spain), Second Phase, ICJ Reports 1970 p 3, 290–4, 300–1 (Judge
Ammoun).
3
19 May 2006, ILC Ybk 2006/II, 2, 71–6; and Crawford (2006) 31 S Af
YIL 19.
4
But see ILC, Expulsion of Aliens, A/CN.4/617, 21 July 2009;
Secretariat Memorandum, Expulsion of Aliens, A/CN.4/565, 10 July 2006;
Special Rapporteur Kamto, Seventh Report, A/CN.4/462, 4 May 2011.
5
5
Barcelona Traction, Second Phase, ICJ Reports 1970 p 3, 32–4. The
Court noted that ‘whenever legal issues arise concerning the rights of
States with regard to the treatment of companies and shareholders, as to
which rights international law has not established its own rules, it has to
refer to the relevant rules of municipal law’. This passage was quoted
with approval in Ahmadou Sadio Diallo (Guinea v Democratic Republic of
the Congo), Judgment of 30 November 2010, §34.
6
Judgment of 24 May 2007, §§30–1, holding that BIT practice ‘is not
sufficient to show that there has been a change in the customary rules of
diplomatic protection; it could equally show the contrary’.
7
17 December 1992, 32 ILM 289, Art 1105.
8
NAFTA Free Trade Commission, Notes of Interpretation of Certain
Chapter 11 Provisions, 31 July 2001, 13 WTAM 139, stating that ‘the
concepts of “fair and equitable treatment” and “full protection and
security” do not require treatment in addition to or beyond that which is
required by the customary international law minimum standard of
treatment of aliens’.
9
The texts of BITs and awards cited in this chapter can be found
at www.unctadxi.org and /or www.italaw.com. There are some 269
reported BIT cases at www.italaw.com of which 224 involve ICSID. The
first reported BIT decision was Asian Agricultural Products Ltd v Sri
Lanka (1990) 4 ICSID Reports 245.
10
For British practice: McNair, 2 Opinions 105–8; Musgrove v Toy [1891]
AC 272; 6 BD 9–77. Generally on admission and exclusion of
aliens: McDougal, Lasswell & Chen (1976) 70 AJIL 432; GoodwinGill, International Law and the Movement of Persons between
States(1978) chs 1–2, 6–10; Nafziger (1983) 77 AJIL 804;
Madureira, Aliens’ Admission to and Departure from National
Territory (1989); Aleinikoff (ed), From Migrants to Citizens (2000); Guild
(ed), International Migration and Security (2005). Also the International
Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families, 18 December 1990, 2220 UNTS 3; European
Convention on Establishment, 13 December 1955, 529 UNTS 142.
Further: Kleindienst v Mandel, 408 US 753 (1972); R (Ullah)v Special
Adjudicator [2004] UKHL 26; Aderhold v Dalwigk, Knüppel, 2 BvR
1908/03, 24.10.2006.
11
E.g. USA–Italy, Treaty of Friendship, Commerce and Navigation, 2
February 1948, 326 UNTS 71.
12
E.g. Germany–Guyana BIT (1989) 1909 UNTS 3, Art 2 (1); Sweden–
Argentina BIT (1991), Art 1(1); Switzerland–Croatia BIT (1996), Art 2;
Germany Model BIT (2008), Art 2.
13
6 BD 83–241; 8 Whiteman 850–63; Kälin, ‘Aliens, Expulsion and
Deportation’ (2010) MPEPIL. E.g. People’s Initiative ‘Expulsion of Foreign
Criminals’, Switzerland, adopted by referendum on 28 November 2010,
providing for automatic expulsion and ban on re-entry of aliens convicted
of certain crimes.
14
Yeager v Islamic Republic of Iran (1987) 82 ILR 178; Short v Islamic
Republic of Iran (1987) 82 ILR 148; Libyan Arab Foreign Investment Co v
Republic of Burundi (1991) 96 ILR 279. Generally: Goodwin-Gill (1978)
201–310. Further: Henckaerts, Mass Expulsion in Modern International
Law and Practice (1995); Alleweldt, Protection against Expulsion in the
Case of Threat of Torture or Inhuman or Degrading Treatment or
Punishment (1996); Guild & Minderhoud (eds), Security of Residence
and Expulsion (2001); Edwards & Ferstman (eds), Human Security and
Non-Citizens (2010).
15
For expulsion as disguised extradition: e.g. Muller v Superintendent,
Presidency Jail, Calcutta (1955) 22 ILR 497; R v Governor of Brixton
Prison, ex parte Soblen [1963] 2 QB 283; R v Horseferry Road
Magistrates’ Court, ex parte Bennett [1993] 3 WLR 90; Conka v
Belgium [2002] ECtHR 51564/99.
16
CCPR, General Comment 15: The Position of Aliens under the
Covenant (1986); Maroufidou v Sweden (1981) 62 ILR 278, 284.
17
The view is sometimes expressed that the expelling state must have
complied with its own law: 6 BD 151–2; Goodwin-Gill (1978) 263–81.
18
R (European Roma Rights Centre) v Immigration Officer at Prague
Airport [2004] UKHL 55, and on non-discrimination: chapter 29.
19
20
Diallo, Judgment of 30 November 2010, §24.
20
Ibid, §§29, 31, 35–7. Also: Diallo, Compensation, Judgment, of 19
June 2012, §§ 11–17.
21
For British practice: 6 BD368–405; McNair, 2 Opinions113–37.
Also: Parry (1954) 31 BY 437; Goodwin-Gill (1978) ch 3; Pérez Vera
(1996) 261 Hague Recueil 243; Hailbronner & Gogolin, ‘Aliens’
(2009) MPEPIL.
22
Verdross (1931) 37 Hague Recueil 327, 379. The law of war and
neutrality may reinforce the position when the host state is involved in
civil or foreign war. See 1 Répertoire suisse 348; Polites v
Commonwealth of Australia (1945) 12 ILR 208.
23
(1967) 3 AYIL 249; 8 Whiteman 540–73.
24
Saxoferrato, Tractatus represaliarum (1354), in Consiliorum Bartoli
Libri Duo (1555); Legnano Tractatus de bello, de represaliis et de
duello (1360; repr 1917); Vattel (1758) II.xvi; Onuf, Reprisals (1974);
Kalshoven, Belligerent Reprisals (2nd edn, 2005); Ruffert, The Public–
Private Law Divide (2009). At sea, letters of marque survived into the
19th century: Cooperstein (2009) 40 JMLC 221.
25
These included claims settlement conventions between Mexico and
the US of 1839, 1848, 1868, and 1923; the Venezuelan arbitrations of
1903 involving claims of 10 states against Venezuela; and conventions
between Great Britain and the US of 1853, 1871, and 1908.
See Borchard (1927) 21 AJIL 472; Feller, The Mexican Claims
Commissions 1923–1934 (1935); Stuyt, Survey of International
Arbitrations 1794–1989 (3rd edn, 1990); Dolzer, ‘Mixed Claims
Commissions’ (2006) MPEPIL.
26
Anzilotti (1906) 13 RGDIP 5, 285; Anzilotti The Diplomatic Protection
of Citizens Abroad (2nd edn, 1927); Eagleton, The Responsibility of
States in International Law (1928); Dunn, The Protection of
Nationals (1932); Freeman, The International Responsibility of States for
Denial of Justice (1938); Brownlie, System of the Law of Nations; State
Responsibility (1983) 1–9; Lillich (ed), International Law of State
Responsibility for Injuries to Aliens (1983). Also: Lillich (1978) 161
Hague Recueil 329; Lillich, The Human Rights of Aliens in Contemporary
International Law (1984); Dugard, in Crawford, Pellet & Olleson
(eds), The Law of International Responsibility (2010) 1051.
27
For a misguided attempt to exclude host state law: Kardassopoulos v
Georgia, 6 July 2007, §§142–6. The decision was right on the facts as
Georgia was plainly estopped from denying the legality of the investment.
28
On the abolition of capitulations: Bentwich (1933) 13 BY 89. In
general: Bell, ‘Capitulations’ (2009) MPEPIL.
29
Generally: Amerasinghe, Local Remedies in International Law (2nd
edn, 2004), and see chapter 31.
30
Ibid, 23–4.
31
Ibid, 71.
32
Conspicuous among examples of waiver are almost all BITs, which
dispense with the procedural requirement of exhaustion. See
Douglas, The International Law of Investment Claims (2009) §§610–15;
and for the local remedies rule as a ground of inadmissibility: chapter 31.
33
The debate: ILC Ybk 1957/I, 154–62; cf Sornarajah, The International
Law on Foreign Investment (3rd edn, 2010).
34
Harvard Draft Convention on Responsibility of States for Damage
Done in Their Territory to the Person or Property of Foreigners (1929)
23 AJIL SpSupp 131; Jessup (1946) 46 Col LR 903; Roth, The Minimum
Standard of International Law Applied to Aliens (1949); Sohn & Baxter
(1961) 55 AJIL 545; 6 BD 247–440; 8 Whiteman 704–6; García Amador,
Sohn & Baxter, Recent Codification of the Law of State Responsibility for
Injuries to Aliens (1974). Further: Melloni, The Principle of National
Treatment in the GATT (2005); Kurtz, in Kahn & Wälde, Les aspects
nouveaux du droit des investissements internationaux (2007) 311;
Bjorklund, in Yannaca-Small (ed), Arbitration under International
Investment Agreements (2010) 411; Gerhart & Baron, in Qureshi & Gao
(eds), 3 International Economic Law (2011) 77.
35
36
The cautio iudicatum solvi of civil law systems.
Also the citations by Herz (1941) 35 AJIL 243, 259. The equality
principle was advocated as early as 1868 by the Argentinian jurist
Calvo, Derecho Internacional teórico y práctico de Europa y
América (1868).
37
37
Canevaro(1912) 9 RIAA 397; Cadenhead (1914) 11 ILR
177; Standard-Vacuum Oil Company (1959) 30 ILR 168.
38
Roth (1949) 72–4. Also Guerrero, Rapporteur, League of Nations,
Responsibility of States for Damage Done in their Territory to the Person
or Property of Aliens (1926) 20 AJIL Sp Supp 176.
39
E.g. the US in Norwegian Shipowners (1922) 1 ILR 189. Also Havana
Convention on Status of Aliens, 20 February 1928, 132 LNTS 301, Art 5;
draft Convention on the Treatment of Aliens proposed by the Paris
Conference, 1929, Art 17, in Bustamante, La Comisión de Jurisconsultos
de Rio de Janeiro y el Derecho Internacional (1927) 206; Montevideo
Convention on Rights and Duties of States, 26 December 1933, 165
LNTS 19, Art 9.
40
Harvard Draft Convention (1929) 23 AJIL Sp Supp 131; Jessup (1946)
46 Col LR 903; Roth (1949); Sohn & Baxter (1961) 55 AJIL 545;
6 BD 247–440; García Amador, Sohn & Baxter (1974). For current
literature: Kurtz, in Kahn & Wälde (2007) 311; Paparinskis, The
International Minimum Standard and Fair and Equitable
Treatment (2012).
41
Leading proponents include Anzilotti, Verdross, Borchard,
Oppenheim, Guggenheim, de Visscher, Scelle, and Jessup. Also
2 Restatement Third, §722; Schachter (1982) 178 Hague Recueil 1, 314–
21; Dolzer & Schreuer, in 4 Qureshi & Gao (2011) 3.
42
GA Res 1803(XVII), 14 December 1962 (87–2:12).
43
(1926) 3 ILR 213. Also Roberts (1926) 3 ILR 227; Hopkins (1926) 3
ILR 229; British Claims in the Spanish Zone of Morocco (1925) 2 RIAA
615, 644.
44
Mondev v US (2002) 6 ICSID Reports 192, 224.
45
Glamis Gold v US, 8 June 2009, §§614–16. Also Cargill Inc v
Mexico (2009) 146 ILR 642, 724.
46
47
TECMED v Mexico (2003) 10 ICSID Reports 130, 192.
Cf the more balanced articulations in Waste Management Inc (No 2)v
United Mexican States (2004) 11 ICSID Reports 361, 386; MTD v
Chile (2007) 13 ICSID Reports 500, 521–2.
48
48
Paulsson, Denial of Justice in International Law (2005) 88–90;
McLachlan, Shore & Weiniger, International Investment Arbitration (2007)
243.
49
For references to such a standard: British Claims in the Spanish Zone
of Morocco (1925) 2 RIAA 615, 644 (Huber).
50
ILC Ybk 1957/II, 112. Generally on human rights: chapter 29.
51
For criticisms see ILC Ybk 1957/I, 154–62, and for the Special
Rapporteur’s response: Ibid, 1957/II, 104–31.
52
Further: McDougal, Lasswell & Chen (1976) 70 AJIL 432; Lillich
(1984). Cf UN Draft Norms on the Responsibilities of Transnational
Corporations and other Business Enterprises with regard to Human
Rights, E/CN.4/Sub.2/2003/12, 30 May 2003, 2 (which failed to gain
endorsement by the UN Human Rights Commission). Further: Simma &
Kill, in Binder et al (eds), International Investment Law for the 21st
Century (2009) 678; Pisillo-Mazzeschi, in Fastenrath et al (eds), From
Bilateralism to Community Interest (2011) 552; Paparinskis (2012) chs 7–
8.
53
McDougal, Lasswell & Chen (1976) 70 AJIL 432, 450–1; Schachter
(1982) 178 Hague Recueil 1, 314–21; Weiler, International Investment
Law and Arbitration (2005) 557; Lowenfeld, International Economic
Law (2nd edn, 2008) 22–36. Generally: Vierdag, The Concept of
Discrimination in International Law (1973); Schiek, Cases, Materials and
Text on National, Supranational and International Non-Discrimination
Law (2007); Baetens, in Schill (ed), International Investment Law and
Comparative Public Law (2010) 279; Baetens, Nationality Discrimination
in International Law (2012). In relation to discriminatory conduct see
also Saluka Investments BV v Czech Republic (2006) 15 ICSID Reports
274, 340–2.
54
Commentary, §1, in Crawford, The International Law Commission’s
Articles on State Responsibility (2002) 74; Crawford, in Crawford, Pellet
& Olleson (2010) 20.
55
OECD Working Paper 2004/3, Fair and Equitable Treatment Standard
in International Investment Law (2004). Further: Tudor, The Fair and
Equitable Treatment Standard in the International Law of Foreign
Investment (2008); Kläger, Fair and Equitable Treatment in International
Investment Law (2011); Alvarez (2011) 344 Hague Recueil 197;
UNCTAD, Fair and Equitable Treatment (2011); Paparinskis (2012).
56
Dolzer & Stevens, Bilateral Investment Treaties (1995) 60. Instances
of BITs not containing a FET clause include the Croatia–Ukraine BIT
(1997), a number of BITs concluded by Turkey and some FTAs adopting
a national treatment standard instead (e.g. the 2003 Australia–Singapore
and the 2001 India–Singapore FTAs).
57
Belgium–Luxembourg Economic Union–Tajikistan BIT (2009); China–
Switzerland BIT (2009); OECD Draft Convention on the Protection of
Foreign Property (1967).
58
El Salvador–US BIT (1999); Croatia–Oman BIT (2004).
59
NAFTA, Article 1105 (1) Notes of Interpretation, 31 July 2001, NAFTA
Free Trade Commission; Rwanda–US BIT (2008); Agreement
Establishing the ASEAN-Australia–New Zealand Free Trade Area 2009,
Ch 11, Art 6.
60
Romania–United States BIT (1994); ASEAN Comprehensive
Investment Agreement (2009), Art 11; Netherlands–Oman BIT (2009).
61
Wena Hotels Ltd v Egypt (2000) 6 ICSID Reports 89; Genin v
Estonia (2001) 6 ICSID Reports 236; Tecmed v Mexico (2003) 10 ICSID
Reports 130.
62
Pope & Talbot v Canada (2001) 7 ICSID Reports 102; ADF v
US (2003) 6 ICSID Reports 470; Eastern Sugar BV v Czech Republic, 12
April 2007; Glamis Gold v US, 8 June 2009.
63
Occidental Exploration v Ecuador (2004) 12 ICSID Reports 54; CMS v
Argentina (2005) 14 ICSID Reports 158; Biwater Gauff v Tanzania, 24
July 2008.
64
Azinian v Mexico (1999) 5 ICSID Reports 269; Mondev v USA (2002)
6 ICSID Reports 181; Waste Management Inc v Mexico (2004) 11 ICSID
Reports 361;Siemens AG v Argentina (2007) 14 ICSID Reports
518; Vivendi v Argentina, 20 August 2007; Rumeli Telecom v
Kazakhstan, 29 July 2008; Duke Energy v Ecuador, 18 August
2008; Bayindir v Pakistan, 27 August 2009.
65
65
Tokios Tokelés v Ukraine, 26 July 2007; Vivendi v Argentina, 20
August 2007; Desert Line Projects LLC v Yemen, 6 February 2008.
66
Azininan v Mexico (1999) 5 ICSID Reports 269; Petrobart v Kyrgiz
Republic (2003) 13 ICSID Reports 335; Loewen v USA (2003) 7 ICSID
Reports 442; Amto v Ukraine, 26 March 2008; Jan de Nul v Egypt (2008)
15 ICSID Reports 437.
67
Mondev v US (2002) 6 ICSID Reports 192, 221–3; ADF v US (2003) 6
ICSID Reports 470, 527–8; Waste Management v Mexico (2004) 11
ICSID Reports 361, 386, and International Thunderbird Gaming Corp v
Mexico, 26 January 2006, §194, all interpreting the Neer standard as an
evolving one. But see the narrow interpretation of minimum standard
in Glamis Gold v US, 8 June 2009, §§614–16.
68
TECMED v Mexico (2003) 10 ICSID Reports 130, 192–3, on the
expectation that the host state ‘acts in a consistent manner, free from
ambiguity and totally transparently’; Duke Energy v Ecuador, 18 August
2008, §340 stating that ‘[t]he stability of the legal and business
environment is directly linked to the investor’s justified expectations’. On
the balancing of investors’ legitimate expectations against the ‘host
State’s legitimate right subsequently to regulate domestic matters in the
public interest’: Saluka v Czech Republic (2006) 15 ICSID Reports 274,
338–9; Continental Casualty v Argentina, 22 Februay 2008, §258; EDF v
Romania, 8 October 2009, §217 stating that ‘[e]xcept where specific
promises or representations are made by the State to the investor, the
latter may not rely on a bilateral investment treaty as a kind of insurance
policy against the risk of any changes in the host State’s legal and
economic framework. Such expectation would be neither legitimate nor
reasonable.’ On the relevance of legitimate expectations at the
quantification of damages stage: CME v Czech Republic (2003), 9 ICSID
Reports 265, Separate Opinion of Sir Ian Brownlie, 419–21.
69
Pope & Talbot v Canada (2002) 7 ICSID Reports 148, 163–4; Desert
Line Projects LLC v Yemen, 6 February 2008, §§179–93.
70
On the due process standard in administrative proceedings: Waste
Management v Mexico(No 2) (2004) 11 ICSID Reports 361,
386; Thunderbird v Mexico, 26 January 2006, §200; ADC Affiliate Ltd v
Hungary (2006) 15 ICSID Reports 534, 608.
71
71
Elettronica Sicula SpA (ELSI) (US v Italy), ICJ Reports 1989 p 15, 74–
6 on the meaning of arbitrary and discriminatory measures under a FCN
treaty: ‘[a]rbitrariness is not so much something opposed to a rule of law
as something opposed to the rule of law’. Further: Genin v Estonia (2001)
6 ICSID Reports 236, 238; Loewen v USA (2003) 7 ICSID Reports 442,
467; LG&E v Argentina, 3 October 2006, §162.
72
(2004) 11 ICSID Reports 361, 386.
73
(2006) 15 ICSID Reports 250, 339.
74
Azinian v United Mexican States (1999) 5 ICSID Reports 269, 291–
2; Noble Ventures Inc v Romania (2005) 16 ICSID Reports 210, 274.
75
(2000) 8 ICSID Reports 18, 56. Also: Eastern Sugar BV v Czech
Republic, 12 April 2007, §272; AES v Hungary, 23 September 2010,
§9.3.40.
76
Eagleton (1928) 22 AJIL 538; Harvard Draft Convention (1929)
23 AJIL Sp Supp 131, 173–87; Fitzmaurice (1932) 13 BY 93; Lissitzyn
(1936) 30 AJIL 632; Freeman (1938); García Amador, ILC Ybk 1957/II,
110–12; Jiménez de Aréchaga (1978) 159 Hague Recueil 1, 278–82;
Paulsson (2005); Focarelli, ‘Denial of Justice’ (2009) MPEPIL. Also ELSI,
ICJ Reports 1989 p 15, 66–7, for an influential articulation, and for
representative BIT jurisprudence: Amco Asia Corporation v
Indonesia (1990) 1 ICSID Reports 569, 604–5; Azinian v United Mexican
States (1999) 5 ICSID Reports 272, 290–1; Mondev v US (2002) 6 ICSID
Reports 192, 225–6; Waste Management v Mexico No 2 (2004) 11 ICSID
Reports 361, 384–6; Petrobart Limited v Kyrgyz Republic No 2 (2005) 13
ICSID Reports 387, 415–16; Saipem SpA v Bangladesh, 30 June 2009,
§§176–84; Chevron Corporation and Texaco Petroleum v Ecuador, 30
March 2010, §§241–51.
77
Robert E Brown (1923) 6 RIAA 120, 128–9.
78
(1929) 23 AJIL Sp Supp 133, 173.
79
(1999) 5 ICSID Reports 269, 290.
80
(2002) 6 ICSID Reports 192, 225.
81
Jiménez de Aréchaga, in Friedmann, Henkin & Lissitzyn
(eds), Transnational Law in a Changing Society (1972) 171, 179,
referring to the submissions of both parties in Barcelona Traction, ICJ
Reports 1970 p 3; 8 Whiteman 727–31. Further: Greenwood, in
Fitzmaurice et al (eds), Issues of State Responsibility before International
Judicial Institutions (2004) 55.
82
Loewen Group Inc v US(2003) 7 ICSID Reports 442, 469–72.
83
Cf Mann (1967) 42 BY 1, 26–9.
84
McNair, 2 Opinions 205; 6 BD 287–95.
85
Cf Parry (1956) 90 Hague Recueil 653, 695–6. Further: Janes (1926)
3 ILR 218. The application of principles of responsibility is eccentric in the
context of international relations: there is no objection of legal principle to
extension of responsibility to cases of maladministration.
86
Further: Ténékidès (1933) 14 RDILC 514; de Visscher (1935) 52
Hague Recueil 365, 421–32. But see Saipem SpA v Bangladesh, 30
June 2009, §§181–2.
87
Friedman, Expropriation in International Law (1953); Bindschedler
(1956) 90 Hague Recueil 173, 179–306; Wortley, Expropriation in Public
International Law (1959); García Amador, ILC Ybk 1959/II, 2–24;
Foighel, Nationalization and Compensation(1961); Sohn & Baxter (1961)
55 AJIL 545; White, Nationalisation of Foreign Property (1961); Domke
(1961) 55 AJIL 585; Fouilloux, La Nationalisation et le droit international
public (1962); Petrén (1963) 109 Hague Recueil 487, 492–575;
2 Restatement Third, §712; 8 Whiteman 1020–185; Amerasinghe, State
Responsibility for Injuries to Aliens (1967) 121–68; Akinsanya, The
Expropriation of Multinational Property in the Third World (1980); Dolzer
(1981) 75 AJIL 553; Higgins (1982) 176 Hague Recueil 259; Asante
(1988) 37 ICLQ 588; Norton (1991) 85 AJIL 474; Wälde & Kolo (2001)
50 ICLQ 811; Newcombe, in Kahn & Wälde (2007) 391; Sornarajah (3rd
edn, 2010) ch 10.
88
UNCTAD Handbook of Statistics (2009) part 7, available
at: www.unctad.org/en/docs/tdstat34_enfr.pdf.
89
On the various procedures of taking: Sohn & Baxter (1961)
55 AJIL 545; Christie (1962) 38 BY 307; 8 Whiteman 1006–20; Reisman
& Sloane (2003) 74 BY 115; Hobér, Investment Arbitration in Eastern
Europe (2007). Also: ELSI, ICJ Reports 1989 p 15, 67–71; Starrett
Housing Corporation v Iran (1983) 85 ILR 349, 380–93.
90
Treaties may make such restrictions unlawful: e.g. Energy Charter
Treaty, 17 December 1994, 2080 UNTS 95, Art 21.
91
Currency depreciation is lawful unless it is
discriminatory: Tabar (1954) 20 ILR 211, 212–13; Zuk(1956) 26 ILR 284,
285–6; Furst (1960) 42 ILR 153, 154–5; cf CMS Gas Transmission v
Argentina (2005) 14 ICSID Reports 158, 180; Suez, Sociedad General de
Aguas de Barcelona SA v Argentina, 30 July 2010, §§125–5.
92
Oscar Chinn (1934) PCIJ Ser A/B No 63, 65. Further: Christie (1962)
38 BY 307, 334–6.
93
Application to Aliens of the Tax on Mortgagors’ Gains (1963) 44 ILR
149, 153–4.
94
Waelde & Kolo (2001) 50 ICLQ 811. Further: Saluka v Czech
Republic (2006) 15 ICSID Reports 250, 326–31.
95
(2000) 122 ILR 293.
96
Ibid, 335–7.
97
Metalclad Corporation v Mexico (2000) 5 ICSID Reports 209, 260;
also CME v Czech Republic (2001) 9 ICSID Reports 121, 236 and for
overview of the case-law and definitions: Generation Ukraine v
Ukraine (2003) 10 ICSID Reports 236, 300–6. But see Telenor v
Hungary, 13 September 2006, §§65–70, for a narrow definition. For the
Energy Charter Treaty: Nykomb Synergetics AB v Latvia (2003) 11 ICSID
Reports 153, 194. Also US Model BIT 2004, Art 6 (1) & Annex B,
available at www.unctadxi.org; OECD Working Paper 4/2004, Indirect
Expropriation and the Right to Regulate in International Investment
Law (2004).
98
99
Mexico v Metalclad (2001) 125 ILR 468.
The formula appears in a Note from US Secretary of State Cordell
Hull to the Mexican government dated 22 August 1938: 3 Hackworth
658–9. The formula appears in most BITs. On the criteria of adequacy,
effectiveness, and promptness: García Amador, ILC Ybk 1959/II, 16–24;
White (1961) 235–43; Jiménez de Aréchaga, ILC Ybk 1963/II, 237–
44; Cole (1965–66) 41 BY 368, 374–9; Schachter (1984) 78 AJIL 121;
McLachlan, Shore & Weiniger (2007) ch 9; Marboe, Calculation of
Compensation and Damages in International Law (2009). See discussion
in Wena Hotels v Egypt (2000) 6 ICSID Reports 89, 117–30; AIG v
Kazakhstan (2003) 11 ICSID Reports 7, 83–93; Kardassopoulos v
Georgia, 3 March 2010, §§501–17.
100
The statements of the Permanent Court on vested or acquired rights
occur in the context of state succession. Also Lighthouses (1956) 23 ILR
341.
101
Cf First Protocol to the ECHR, 20 March 1952, ETS 9, Art 1;
also Lithgow and others v UK (1986) 75 ILR 438.
102
The pre-1914 practice included the following cases: Charlton (1841)
31 BFSP 1025; Finlay (1846) 39 BFSP 40; King (1853), in Moore,
6 Digest 262; Savage (1852), in Moore, 2 Digest 1855; Delagoa Bay
Railway (1900), in La Fontaine, Pasicrisie international,
398; Expropriated Religious Properties (1920) 1 RIAA 7.
103
Friedman (1953) 86–101; White (1961) 193–243; Lillich, The
Protection of Foreign Investment (1965) 167–88; Lillich & Weston (1988)
82 AJIL 69; Sacerdoti (1997) 269 Hague Recueil 251, 379–411; Lillich,
Weston & Bederman, International Claims (1999); McLachlan, Shore &
Weiniger (2007) 332; Bank & Foltz, ‘Lump Sum Agreements’
(2009) MPEPIL.
104
Delagoa Bay Railway Arbitration, in Moore,
2 Digest 1865; Expropriated Religious Properties (1920) 1 RIAA 7;
Martens, 30 NRG 2nd Ser 329.
105
Norwegian Ships (1921) 1 ILR 189; French Claims against
Peru (1921) 1 ILR 182; Landreau (1921) 1 ILR 185; British Claims in the
Spanish Zone of Morocco (1925) 2 RIAA 615; Hopkins (1927) 3 ILR
229; Goldenberg (1928) 4 ILR 542; Hungarian Optants (1927)
8 LNOJ No 10, 1379 ; Portugal v Germany (1930) 5 ILR 150,
151; Shufeldt (1930) 5 ILR 179; Mariposa (1933) 7 ILR 255; de
Sabla (1933) 7 ILR 241, 243; Saudi Arabia v Arabian American Oil
Company (Aramco) (1958) 27 ILR 117, 144, 168, 205; Amoco
International Finance Corporation v Government of the Islamic Republic
of Iran(1987) 83 ILR 500, 541–3. Also: El Triunfo (1901) 15 RIAA
467; Upton (1903) 63 ILR 211; Selwyn (1903) 9 RIAA 380.
106
German Interests in Polish Upper Silesia (1926) PCIJ Ser A No 7,
21–2, 33, 42; Factory at Chorzów, Jurisdiction (1927) PCIJ Ser A No 927,
31; Interpretation of Judgments Nos 7 and 8, PCIJ Ser A No 13,
19; Factory at Chorzów, Indemnity (1928) PCIJ Ser A No 17, 46–
7; German Settlers in Poland (1923) PCIJ Ser B No 6, 23–4, 38; Peter
Pázmány University (1933) PCIJ Ser A/B No 61, 243.
107
Herz (1941) 35 AJIL 243, 251–2; Friedman (1953) 1–3; Wortley
(1959) 40–57; García Amador, ILC Ybk 1959/II, 11–12; Sohn & Baxter
(1961) 55 AJIL 545, 553, 561–2; Bishop, Crawford & Reisman, Foreign
Investment Disputes (2005) ch 8(I–J); Newcombe, in Kahn & Wälde
(2007); Sornarajah (3rd edn, 2010) ch 10(2); Wittich, ‘Compensation’
(2008) MPEPIL.
108
Allgemeine Gold-und Silberscheideanstalt v Customs and Excise
Commissioners [1980] 2 WLR 555; Crawford (1980) 51 BY 305.
Generally: Brower & Brueschke, The Iran–United States Claims
Tribunal (1998) 463; Meyler (2007) 56 DePaul LR 539; Henry (2010)
31 U Penn JIL 935.
109
AKU (1956) 23 ILR 21; Prince Salm-Salm v Netherlands (1957) 24
ILR 893. This view is controversial, however. Further: Assets of
Hungarian Company in Germany (1961) 32 ILR 565; Re Dohnert, Muller,
Schmidt & Co (1961) 32 ILR 570.
110
Delson (1957) 57 Col LR 771.
111
Friedmann (1956) 50 AJIL 475, 505. On estoppel: chapter 18.
112
Cf German Interests (1926) PCIJ Ser A No 7; Factory at
Chorzów, Indemnity (1928) Ser A No 17, 46–7.
113
Netherlands Note to Indonesia, 18 December 1959 (1960)
54 AJIL 484; US Notes to Libya, 8 July 1973, US Digest 1973, 334–5; 20
June 1974, US Digest 1975, 490–1. Also Banco Nacional de Cuba v First
National City Bank (1961) 35 ILR 2, 42, 45; Banco Nacional de Cuba v
Sabbatino (1962) 35 ILR 2. An obvious difficulty is to determine when a
countermeasure is lawful: in principle it should be a reaction to a prior
breach of legal duty, proportionate, and reversible. These conditions will
rarely if ever be met in BIT (as distinct from interstate) cases: Archer
Daniels Midland Co and Tate & Lyle v Mexico (2007) 146 ILR 439, 484–
505; Corn Products International v Mexico (2008) 146 ILR 581, 624–
38; Cargill Ltd v Mexico (2009) 146 ILR 642, 752–66; Mexico—Soft
Drinks, WT/DS308/AB/R, 6 March 2006, §§66–80. Commentary
in Paparinskis (2008) 79 BY 264.
114
There is much authority for this: Banco Nacional de Cuba v
Sabbatino (1962) 35 ILR 2; In re by Helbert Wagg & Co Ltd (1955) 22
ILR 480; Bank Indonesia v Senembah Maatschappij & Twentsche
Bank (1959) 30 ILR 28. The test of discrimination is the intention of the
government: the fact that only aliens are affected may be incidental, and,
if the taking is based on economic and social policies, it is not directed
against particular groups simply because they own the property involved.
ICJ Pleadings 1951, Anglo-Iranian Oil Co, Memorial of the UK, 97; AngloIranian Oil Co Ltd v SUPOR Company (1954) 22 ILR 23, 39–40; 8
Whiteman 1041–57. Also ELSI, ICJ Reports 1989 p 15, 71–3.
115
White (1961) 151–3.
116
Amoco International Finance Corporation v Islamic Republic of
Iran (1987) 83 ILR 500, 507–8. Also Ripinsky, in Ripinsky
(ed), Investment Arbitration (2009) 47.
117
Municipal courts often recognize measures lawful under the lex
situs: Luther v Sagor [1921] 3 KB 532; In re Helbert Wagg & Co
Ltd [1956] 1 Ch 323; NV Verenigde Deli-Maatschappijen v DeutschIndonesische Tabak-Handelsgesellschaft mbH (1959) 28 ILR 16.
Cf Staker (1987) 58 BY 151.
118
Amoco International Finance v Iran (1987) 83 ILR 500. Generally:
Mouri, The International Law of Expropriation as Reflected in the Work of
the Iran–US Claims Tribunal (1994); Aldrich, The Jurisprudence of the
Iran–United States Claims Tribunal (1996); Brower & Brueschke (1998).
119
Further: Mann (1981) 52 BY 241; Dolzer & Stevens (2005) ch 4;
Wittich, ‘Compensation’ (2008) MPEPIL. Cf Energy Charter Treaty, 17
December 1994, 2080 UNTS 95, Art 13 (1)(d); NAFTA, 17 December
1992 (1993) 32 ILM 289, Art 1110; US Model BIT (2004) Art 6; France
Model BIT (2006) Art 6; Germany Model BIT (2008) Art 4; UK Model BIT
(2005 as amended 2006) Art 4; cf China Model BIT (1997) Art 4.
120
GA Res 3281(XXIX), 12 December 1974 (120–6:10). For
contemporary comment: Lillich (1975) 69 AJIL 359; Jiménez de
Aréchaga (1978) Hague Recueil 1, 297–310; Brownlie (1979) 162
Hague Recueil 245.
121
CME v Czech Republic (2003) 9 ICSID Reports 264, 369–71
referring to the Compañía del Desarrollo de Santa Elena SA v Costa
Rica (2000) 5 ICSID Reports 157.
122
CME v Czech Republic (2003) 9 ICSID Reports 264, Separate
Opinion by Ian Brownlie, 418–19, citations omitted.
123
Ibid, 419.
124
Generally: Jennings (1961) 37 BY 156; Greenwood (1982)
53 BY 27; Bowett (1988) 59 BY 49; Schwebel, Justice in International
Law (1994) 425; Leben (2003) 302 Hague Recueil 197; Douglas (2003)
74 BY 151; Crawford (2008) 24 Arb Int 351.
125
Borchard, The Diplomatic Protection of Citizens Abroad or the Law of
International Claims (1927) ch 7; Eagleton (1928) 157–68 ; Dunn (1932)
165–7, 171; Feller (1935) 174 ; Foighel (1961) 178–93; Amerasinghe
(1967) 66–120; Mann, Studies in International Law (1973) 302–26;
Jiménez de Aréchaga (1978) 159 Hague Recueil 1, 305–6 ; Schachter
(1982) 178 Hague Recueil 1, 309–12; Lalive (1983) 181
Hague Recueil 9, 21–284; Bowett (1988) 59 BY 49;
Paasivirta, Participation of States in International Contracts and Arbitral
Settlement of Disputes (1990); Westberg, International Transactions and
Claims Involving Government Parties (1991); Kischel, State
Contracts (1992); Shihata & Parra (1995) 10 ICSID RevFILJ 183; Delaume (1997) 12 ICSID Rev-FILJ 1; Nassar (1997)
4 JIA 185; Kamto (2003) 3 Rev Arb 719; Alexandrov (2004) 5 JWIT 556.
Further: Crawford (2002) 96; Marboe & Reinisch, ‘Contracts between
States and Foreign Private Law Persons’ (2007) MPEPIL.
126
Shufeldt(1930) 5 ILR 179; Feierabend (1960) 42 ILR
157; Hexner(1962) 42 ILR 169; Valentine Petroleum & Chemical
Corporation v Agency for International Development (1967) 44 ILR 79,
85–91; BP Exploration Company (Libya) Ltd v Government of Libyan
Arab Republic (1974) 53 ILR 297; Texaco v Libyan Government (1977)
53 ILR 389; LIAMCO v Libya (1977) 62 ILR 140; Revere Copper & Brass
v Overseas Private Investment Corporation (1978) 56 ILR 258. Cf Mobil
Oil Iran Inc v Government of the Islamic Republic of Iran (1987) 86 ILR
230, 274–6; Liberian Eastern Timber Corporation (LETCO) v
Government of the Republic of Liberia (1986) 89 ILR 313, 337–8; Amco
Asia Corporation v Republic of Indonesia (1990) 89 ILR 366, 466–8. On
the expropriation of contractual rights as expropriation of
investment: Consortium RFCC v Kingdom of Morocco, 22 December
2003, 85–9; Tokios Tokelés v Ukraine (2004) 11 ICSID Reports 313,
336; Siemens v Argentina (2007) 14 ICSID Reports 518, 571–2.
127
Waste Management v Mexico (2004) 11 ICSID Reports 361, 382–6.
128
Harvard Draft Convention (1929) 23 AJIL Sp Supp 131, Art 8, 167–
73 (but the comment consider ably modifies the text). Also 2 Restatement
Third §712; Schwebel, 3 Essays in Honour of Roberto Ago (1987) 401–
13.
129
Jennings (1961) 37 BY 156.
130
Ibid, 173–5, 177. The award in Saudi Arabia v Aramco (1958) 27 ILR
117 referred to acquired rights as a ‘fundamental principle’. Also McNair
(1957) 33 BY 1, 16–18.
131
E.g. Delagoa Bay Railway (1900) 30 Martens, NRG, 2nd Ser 329; El
Triunfo (1901) 15 RIAA 467; Rudloff (1905) 9 RIAA 244; Landreau (1922)
1 ILR 185; Shufeldt (1930) 5 ILR 179; Saudi Arabia v Aramco(1958) 27
ILR 117. Also: Sapphire International Petroleum Ltd v National Iranian Oil
Company (NIOC) (1963) 35 ILR 136; Texaco v Libya (1977) 53 ILR 389.
132
Azinian v Mexico (1999) 5 ICSID Reports 272, 289; Consortium
RFCC v Kingdom of Morocco, 22 December 2003, §§85–9; Waste
Management v Mexico (2004) 11 ICSID Reports 361, 390; Impregilo SpA
v Islamic Republic of Pakistan (2005) 12 ICSID Reports 245, 296–
8; Glamis Gold v US, 8 June 2009, §620.
133
Mann (1960) 54 AJIL 572, 575–88. The award in Saudi Arabia v
Aramco (1958) 27 ILR 117 had a declaratory character as the principle of
acquired rights had been recognized by both parties.
134
English courts have upheld legislative abrogation of gold clauses: R v
International Trustee for the Protection of Bondholders AG [1937] AC
500; Kahler v Midland Bank [1950] AC 24. Cf Mann, The Legal Aspect of
Money (6th edn, 2005).
135
UK Memorial, Anglo-Iranian Oil Co, ICJ Pleadings 1951, 86–93.
Comment by Mann (1960) 54 AJIL 572, 587; cf US Digest (1975) 489–
90.
136
Also Radio Corporation of America v National Government of
China (1935) 8 ILR 26.
137
Alexandrov (2006) 5 TDM; Crawford (2008) 24 Arb Int 351.
138
Waste Management v Mexico (2004) 11 ICSID Reports 361, 403–8.
Further: ARSIWA, ILC Ybk 2001/ II, 31, Art 4 §6 with commentary.
139
SD Myers, Inc v Canada (2000) 8 ICISD Reports 18; Pope & Talbot,
Inc v Government of Canada (2000–1) 7 ICSID Reports 69; Mondev v
US (2002) 6 ICSID Reports 192, 215–26. On the standard of full
protection and security in investment law: Cordero Moss, in Reinisch
(ed), Standards of Investment Protection (2008) 131; Schreuer (2010)
1 JIDS 353; Zeitler, in Schill (2010) 183.
140
Generally: Weil (1969) 128 Hague Recueil 95, 229–34; Higgins
(1982) 176 Hague Recueil 259, 298–314; Greenwood (1982) 53 BY 27,
60–4; Lalive (1983) 181 Hague Recueil 9, 56–61, 147–62; Redfern
(1984) 55 BY 65, 98–105; Paasivirta (1989) 60 BY 315; Toope, Mixed
International Arbitration (1990); García-Amador (1993) 2 J Trans
LP 23; Coale (2001) 30 DJILP 217; Faruque (2006) 23 JIA 317;
Duruigbo, in Nweze (ed), Contemporary Issues of Public International
and Comparative Law (2009) 631.
141
Texaco v Libya(1977) 53 ILR 389, 494–5. In Libyan American Oil
Company (LIAMCO) v Government of the Libyan Arab Republic (1977)
62 ILR 140, 196–7, the sole arbitrator held that breach of a stabilization
clause was lawful but gave rise to a right to receive an equitable
indemnity. The issue was not considered in BP v Libya (1973) 53 ILR
297. Also: Revere v OPIC (1978) 56 ILR 258, 278–94; Weil, Mélanges
offerts à Charles Rousseau (1974) 301–28.
142
Jiménez de Aréchaga (1978) 159 Hague Recueil 1, 308;
Rosenberg, Le Principe de souveraineté des états sur leurs ressources
naturelles (1983) 297–332.
143
143
Majority Award in Aminoil (1982) 66 ILR 518, 587–91. In his Opinion,
Sir Gerald Fitzmaurice stated that the stabilization clauses rendered the
expropriation (in effect) unlawful; Ibid, 621–2. Further: Mann (1983)
54 BY 213; Redfern (1984) 55 BY 65, 98–105.
144
(1982) 66 ILR 518, 587–92.
145
Sinclair (2004) 20 Arb Int 411; Schreuer (2004) 5 JWIT 231; Wälde
(2005) 6 JWIT 183; OECD, Interpretation oftheUmbrellaClause in
Investment Agreements (2006); Halonen, in Weiler (ed), 1 Investment
Treaty Arbitration and International Law (2008) 27; Crawford (2008)
24 Arb Int 351; Gallus (2008) 24 Arb Int 157; McLachlan (2008) 336
Hague Recueil 199, 398; Schill, in Schill (2010) 317.
146
Jurisdiction, ICJ Reports 1952 p 93.
147
Switzerland–Philippines BIT (1997) Art X(2), available
at www.unctadxi.org.
148
SGS v Pakistan (2003) 8 ICSID Reports 406; Joy Mining v
Egypt (2004) 13 ICSID Reports 123.
149
Pan American Energy v Argentina, 27 July 2006; El Paso Energy v
Argentina, 27 April 2006.
150
Fedax v Venezuela (1997) 5 ICSID Reports 183; Eureko v
Poland (2005) 12 ICSID Reports 331; Noble Ventures Inc v
Romania (2005) 16 ICSID Reports 210.
151
SGS v Philippines (2004) 8 ICSID Reports 515; CMS v
Argentina (2007) 14 ICSID Reports 251.
152
(2007) 14 ICSID Reports 251, 268.
153
Generally: Born, International Arbitration and Forum Selection
Agreements (1999); Bishop, Crawford & Reisman (2005) ch 3(III), 225;
Douglas (2009) rules 20–1.
154
Abu Dhabi (Petroleum Development Ltd v Sheikh of Abu
Dhabi) (1951) 18 ILR 144; McNair (1957) 33 BY 1, 4–10; Sereni (1959)
96 Hague Recueil 129, 133–232; Mann (1959) 35 BY 33, 34–7; Mann
(1967) 42 BY 1; O’Connell, 2 International Law (1965) 977–84, 990–1;
Weil (1969) 128 Hague Recueil 95, 120–88; Mann et al (1975)
11 RBDI 562; (1977) 57 Ann de l’Inst 192–265; (1979) 58 Ann de
l’Inst 192 (Res); Weil, Mélanges Reuter (1981) 549–82; Greenwood
(1982) 53 BY 27; Alexandrov (2004) 5 JWIT 556.
155
(1977) 57 Anndel’Inst 246–53 (Report of van Hecke); Schachter
(1982) 178 Hague Recueil 1, 301–9. For a different view: Texaco
Overseas Petroleum Company & California Asiatic Oil Company v
Government of the Libyan Arab Republic (1977) 53 ILR 389. Also: von
Mehren & Kourides (1981) 75 AJIL 476; Leben (2003) 302
Hague Recueil 197; Marboe & Reinisch, ‘Contracts between States and
Foreign Private Law Persons’ (2007) MPEPIL. Further: Waste
Management Inc v Mexico (2004) 11 ICSID Reports 361, 404; Impregilo
SpA v Islamic Republic of Pakistan (2005) 12 ICSID Reports 245, 297–8.
156
BP Exploration Company v Libya (1974) 53 ILR 297; Texaco v
Libya (1977) 53 ILR 389; LIAMCO v Libya (1977) 62 ILR 140; AGIP v
Government of the Popular Republic of Congo (1979) 67 ILR
318; Benvenuti & Bonfant Srl v Government of the Popular Republic of
the Congo (1980) 67 ILR 345.
157
Government of Kuwait v American Independent Oil Company
(Aminoil) (1982) 66 ILR 518. For comment: Mann (1983)
54 BY 213; Redfern (1984) 55 BY 65.
158
Further: Eurotunnel (2007) 132 ILR 1, 120–5; Ecuador v
Occidental [2007] EWCA Civ 656, §21.
159
Vivendi v Argentina (2002) 6 ICSID Reports 340, 366.
160
Ibid, 367–8.
161
SGS v Philippines (2004) 8 ICSID Reports 515, 553.
(p. 634) 29 International Human Rights
1. Introduction
The events of the Second World War, and concern to prevent a
recurrence of catastrophes associated with the policies of the Axis
Powers, led to a programme of increased protection of human rights and
fundamental freedoms at the international level. A notable pioneer in the
field was Hersch Lauterpacht, who stressed the need for an International
Bill of the Rights of Man.1 No such instrument was included in the UN
Charter of 1945, but the Charter’s heuristic references to human rights
provided a basis for development of the law.2 The more important results
of the drive to protect human rights are recorded here, but first some
comment may be made on the forms it has assumed. Inevitably it has
carried to the international forum the differing concepts of freedom
asserted by various leading states, and ideological differences have
influenced the debates.
Human rights are a broad area of concern. Their potential subject-matter
ranges from questions of torture and fair trial to social, cultural, and
economic rights, for example, the right to housing or to water. While
‘human rights’ is a convenient category of reference, it is also a potential
source of confusion. Human rights problems arise in specific factual and
legal contexts. They must be decided by reference to the applicable law,
whether it is the law of a particular state, the provisions of a
convention, or principles of general international law. Human rights
treaties are not a distinct species, still less a phylum. They are, first of all,
treaties negotiated and entered into by states which oblige states parties
as to their treatment of people, including their own
References
(p. 635) nationals. While in this and other ways expanding the scope of
international law, they are also and as such part of the system of
international law.
2. Historical Perspectives
(A) The Equivocal Experience of the League of Nations
The appearance of human rights in the sphere of international law and
organizations is often traced to the era of the League Covenant of
19193 and associated minorities treaties and mandates.4 The minorities
treaties, in particular, constituted an important stage in the recognition of
human rights standards.
But neither the mandates system nor the minorities regimes were
representative: both only applied by way of exception and only to
designated territories or groups. The Covenant did not contain a
minorities clause, let alone any general statement of rights. Amongst the
proposals discarded was this Japanese amendment:
The equality of nations being a basic principle of the League of
Nations, the High Contracting Parties agree to accord as soon
as possible to all aliens [who are] nationals of states members
of the League equal and just treatment in every respect making
no distinction either in law or fact on account of their race or
nationality.5
The idea of universal human rights had to await the Allied wartime
planners: a draft bill of rights was prepared as early as December
1942.6 But the idea of universal human rights was at the same time a
reaction against special rights for particular groups, and it was agreed aft
er 1945 that the inter-war minorities treaties had lapsed.7
(p. 636) (B) The International Labour Organization (ILO)
Although its work is rather specialized, the ILO, created in 1919, has
done a great deal towards giving practical expression to some important
human rights and towards establishing standards of treatment. Its
agenda has included forced labour, freedom of association,
discrimination in employment, equal pay, social security, and the right to
work.8 The ILO’s Constitution has a tripartite structure, with separate
representation of employers and workers, as well as governments, in the
Governing Body and the General Conference. In addition, there are
provisions for union and employer organizations to make representations
and complaints. This procedure was augmented in 1951 when the ILO
Governing Body established a fact-finding and conciliation commission
on freedom of association.9
(C) The Universal Declaration of Human Rights, 194810
In 1948, the General Assembly adopted a Universal Declaration of
Human Rights which has been notably influential.11 The Declaration is
not a treaty, but many of its provisions reflect general principles of law or
elementary considerations of humanity, and the Declaration identified the
catalogue of rights whose protection would come to be the aim of later
instruments. Overall the indirect legal effect of the Declaration should not
be underestimated. It has been invoked, for example, by the European
Court of Human Rights as an aid to interpretation of the European
Convention on
References
(p. 637) Human Rights (ECHR),12 and by the International Court in
relation to the detention of hostages ‘in conditions of hardship’.13
The Declaration is a good example of an informal prescription given legal
significance by actions of authoritative decision-makers, and thus it has
been used as an agreed point of reference in the Helsinki Final Act, the
second of the ‘non-binding’ instruments which have been of considerable
importance in practice.14
(D) The Helsinki Final Act, 1975
On 1 August 1975 the Final Act of the Conference on Security and Cooperation in Europe was adopted in Helsinki.15 It contains a declaration
of principles under the heading ‘Questions Relating to Security in
Europe’. The Final Act was signed by the representatives of 35 states,
including the US and the USSR.
The Declaration is not in treaty form and was not intended to be legally
bind-ing.16 At the same time it signified the acceptance by participating
states of certain principles, including human rights standards. This
significance was recognized by the International Court in Nicaragua v
US.17 That was a special context, but the Helsinki process was a
significant element in the gradual move to acceptance, on the one hand,
of the political status quo in Europe and, on the other hand, of the
salience of human rights standards for Eastern Europe. As such it was a
precursor to the changes of 1989.18
(E) Subsequent Declarations
Subsequent important declarations on human rights include the Vienna
Declaration and Programme of Action adopted by the World Conference
on Human Rights on 25 June 1993, which led to the establishment of the
Office of the High Commissioner for Human Rights,19 the Beijing
Declaration and Programme for Action adopted by the Fourth World
Conference on Women on 15 September 1995,20 and the UN Millennium
Summit Declaration adopted on 8 September 2000,21 among many
others.
References
(p. 638) 3. Sources of Human Rights Standards
(A) Multilateral Conventions
The corpus of human rights standards derives from an accumulation of
multilateral standard-setting conventions. These fall into four general
categories: first, the two comprehensive International Covenants adopted
in 1966;22 secondly, regional conventions; thirdly, conventions dealing
with specific wrongs: for example, genocide, racial discrimination, torture,
and disappearances; and fourthly, conventions related to the protection of
particular categories of people: for example, refugees, women, children,
migrant workers, and people with disabilities. These conventions form a
dense, overlapping pattern of prescriptions, the more so as most states
are parties to most of the general treaties; likewise the regional treaties
are widely ratified within their regions. To a great degree, human rights
law involves the interpretation and application of these and other treaty
texts; only subsidiarily does it involve questions of substantive customary
international law.
(i) The International Covenants of 1966
The Universal Declaration of Human Rights was widely regarded as a
first step toward the preparation of a Covenant in treaty form. After
extensive work in the Commission on Human Rights and the Third
Committee of the General Assembly, the latter in 1966 adopted two
Covenants and a Protocol: the International Covenant on Economic,
Social, and Cultural Rights (ICESCR; 160 parties to date); the
International Covenant on Civil and Political Rights (ICCPR; 167 parties
to date);23 and an Optional Protocol to the latter (114 parties to date)
relating to the processing of individual communications. In 1989 a
Second Protocol to the ICCPR was adopted, aiming at the abolition of the
death penalty (73 parties to date),24 and in 2008 an Optional Protocol to
the ICESCR relating to the processing of individual communications (five
parties to date; not yet in force).25
The Covenants, which came into force in 1976, have legal effect as
treaties for the parties to them and constitute a detailed juridification of
human rights. The ICESCR contains various articles in which the parties
‘recognize’ such rights as the right to work, to social security, and to an
adequate standard of living.26 This type of obligation
References
(p. 639) is programmatic and promotional, except in the case of the
provisions relating to trade unions (Article 8). Each party ‘undertakes to
take steps…to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the
adoption of legislative measures’ (Article 2(1)). The rights recognized are
to be exercised under a guarantee of non-discrimination, but there is a
qualification in the case of the economic rights ‘recognized’ in that
‘developing countries…may determine to what extent they would
guarantee’ such rights to non-nationals. The machinery for supervision
consists of an obligation to submit reports on measures adopted, for
transmission to the Economic and Social Council. Since 1986 an expert
Committee on Economic, Social and Cultural Rights (CESCR) has
assisted in supervising compliance.27
The ICCPR is more specific in its delineation of rights, stronger in its
statement of the obligation to respect those rights, and better provided
with means of review and supervision.28 Its provisions clearly owe much
to the ECHR and the experience based upon it. Article 2(1) contains a
firm general stipulation: ‘Each State Party to the present Covenant
undertakes to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth, or other status’.29 The rights are reasonably well defined
and relate to classical issues including liberty and security of the person,
equality before the law, fair trial, etc. Parties must submit to the Human
Rights Committee (HRC) reports on measures adopted to give effect to
the Covenant.30 There is also a procedure for parties to the Covenant to
complain of non-compliance, subject to a bilateral attempt at adjustment
and prior exhaustion of domestic remedies, provided that such
complaints are only admissible if both states have recognized the
Committee’s competence to receive complaints (Article 41).31
In addition, the Optional Protocol to this Covenant provides for
applications to the HRC from individuals subject to its jurisdiction who
claim to have suffered violations of the Covenant, and who have
exhausted all available domestic remedies.32 The respondent state
submits to the HRC ‘written explanations or statements clarifying the
matter and the remedy, if any, that may have been taken by that state’.
The HRC forwards what are referred to as ‘views’ to the state party
concerned and to the
References
33
(p. 640) individual. The HRC’s ‘views’ are not per se binding,33 but they
are published and are oft en influential in bringing about internal
legislative or administrative changes.34 By December 2011 the HRC had
registered 2,115 communications, 826 of which had been concluded by
adopting ‘views’ under Article 5(4) of the Protocol.35
The work of the CESCR and HRC has been supplemented by
interpretive statements known as ‘General Comments’, for example the
HRC’s General Comment 12 on the right to self-determination.36 These
comments serve to clarify the application of specific provisions and
issues relating to the Covenants, and as such are of significant normative
value within the human rights system.37 Other human rights treaty bodies
also follow this practice.
(ii) Regional conventions
In addition to the multilateral human rights conventions, various regional
conventions recognize a range of civil, political, social, economic, and
cultural rights, and establish regional frameworks for their
protection.38 The first of the comprehensive regional human rights
conventions was the ECHR of 1950.39 It was followed by the American
Convention on Human Rights of 1969,40 and the African Charter on
Human and Peoples’ Rights of 1981.41
Another regional human rights convention is the Arab Charter on Human
Rights adopted by the League of Arab States on 22 May 2004.42 The
Arab Charter is a revision of a 1994 Charter which never came into
force.43 There is no binding human rights convention covering the AsiaPacific region, and there is debate over whether the notion of ‘universal
human rights’ conflicts with ‘Asian values’, said to focus more on the
collective good and civic order than on individual rights.44
References
(p. 641) (iii) Conventions dealing with specific rights
Besides the treaties of general application, the international human rights
framework also includes treaties that address specific wrongs. The first of
these was arguably the 1948 Genocide Convention, which defines
genocide and confirms it as a crime under international law which states
parties undertake to prevent and punish, whether committed in
peacetime or in time of war. It is distinguishable from other human rights
instruments in that it does not set out specific rights for individuals but
operates primarily through criminalizing involvement in genocide.45
Other examples in the category of specific conventions include the
treaties against racial discrimination and apartheid,46 the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,47 and the International Convention for the Protection of All
Persons from Enforced Disappearance.48 The implementation of each
treaty is monitored by committees specifically established for that
purpose.
(iv) Conventions protecting particular categories or groups
The fourth category of multilateral human rights treaties is directed at
protecting certain specific groups. The 1951 Convention Relating to the
Status of Refugees sets out a detailed regime for treatment of refugees,
as defined in Article 1 of the Convention.49 A 1967 Protocol extended its
coverage, removing geographical and temporal limitations in the
definition.50 Refugee law is generally seen as separate from (although
related to) general human rights law, and the system is administered by
the UN High Commissioner for Refugees.51
References
(p. 642) Other groups protected under specific treaties include
children,52 women,53 migrant workers and their families,54 and people
with disabilities.55 As above, the implementation of each of these treaties
is monitored by committees specifically established for that purpose.
(B) Customary International Law
It is now generally accepted that the fundamental principles of human
rights form part of customary international law, although not everyone
would agree on the identity or content of the fundamental principles. In
1970 the International Court in the Barcelona Traction case saw as
included in the category of ‘obligations erga omnes’ the following: ‘the
principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination’.56 This relative
indeterminacy is echoed in later declarations, some of them influential in
promoting the ‘cause’ of human rights.57
The role of the ‘customary international law of human rights’ is
recognized in the Third Restatement in the following terms:
A State violates international law if, as a matter of State policy, it practices, encourages,
or condones
(1) genocide
(2) slavery or slave trade,
(3) the murder or causing the disappearance of individuals,
(4) torture or other cruel, inhuman or degrading treatment or punishment,
(5) prolonged arbitrary detention,
References
(p. 643) (6) systematic racial discrimination, or
(7) a consistent pattern of gross violations of internationally recognized human
58
rights.
In the Wall opinion, the International Court found that the construction of
the wall by Israel, the occupying power, in the Occupied Palestinian
Territory, and the associated regime, were ‘contrary to international
law’.59In resolving certain questions raised by Israel, the Court had
recourse to aspects of customary international law concerning the
substance of international humanitarian law.60 It also relied upon
considerations of general international law in determining that the 1966
Covenants apply both to individuals present within a state’s territory and
to individuals outside that territory but subject to that state’s jurisdiction.61
(C) Summary
As to the substance of human rights themselves, a wide range of rights is
recognized in the core instruments, along with an ever-expanding group
of emerging or claimed ‘rights’ with unclear or contested legal
62
status.62Key human rights protected in two or more major instruments
are tabled below (see Table 28.1 on p. 644). The groupings are indicative
only, as the language and specific formulation of each right differs
between texts.
This table suggests that there may be something approaching a ‘common
core’ of human rights at the universal and regional levels. But it also
suggests that any such common core is partial and imperfect—and it
hides altogether the many differences in the articulation of the various
rights in the various treaties. The fact remains that governments have
chosen to develop and articulate human rights principles at the
international level largely by means of multilateral treaties, individually
negotiated. It is those treaties which for most practical purposes
constitute the international law of human rights.63
References
(p. 644)
Table 29.1 Key human rights protected
ICCPR
ICESCR
ECHR*
ACHR
African
Charter
Self-determination
Art 1
Art 1
-
-
Art 20
Equality & non-discrimination
Arts 2(1),
3,
Arts
2(2),
Art 14
Arts 1,
24
Arts 2,
3, 19
Right to life
Art 6
-
Art 2
Art 4
Art 4
Freedom from torture & other
inhuman treatment
Art 7
-
Art 3
Art 5
Art 5
Freedom from slavery
Art 8
-
Art 4
Art 6
Art 5
Liberty & security of person
Art 9
-
Art 5
Art 7
Art 6
Freedom of assembly &
association
Arts 21,
22
-
Art 11
Arts
15, 16
Arts 10,
11
*
Freedom of movement
Art 12
-
OP4, Art 2
Art 22
Art 12
Due process
Arts 9–
11, 14–16
-
Arts 6, 7;
OP4, Art 1
Arts 3,
8, 9,
24
Arts 3, 7
Freedom of expression
Art 19
-
Art 10
Art 13
Art 9
Freedom of thought,
conscience, & religion
Art 18
-
Art 9
Arts
12, 13
Art 8
Free elections/participation in
government
Art 25
-
OP1, Art 3
Art 23
Art 13
Rights of the family
Art 23
Art 10
Arts 8, 12
Art 17
Art 18
Right to work
-
Arts 6, 7
-
-
Art 15
Right to education
-
Art 13
OP1, Art 2
-
Art 17
Right to health
-
Art 12
-
-
Art 16
Cultural rights
Art 27
Art 15
-
-
Art
17(2)
OP1, OP4: First and Fourth Optional Protocols to ECHR.
4. Non-Discrimination and Collective Rights
The UN Charter contains various references to ‘human rights and
fundamental freedoms for all without distinction as to race, sex, language
or religion’. These general and to some extent promotional provisions
have constituted the background to the appearance of a substantial body
of multilateral conventions and practice by UN organs. By 1966, at the
latest, it was possible to conclude that in terms of the Charter the
principle of respect for and protection of human rights on a nondiscriminatory basis had become recognized as a legal standard.64
References
(p. 645) There is no great gulf between the legal and human rights of
groups, on the one hand, and individuals, on the other. Guarantees and
standards governing treatment of individuals tend, by emphasizing
equality, to protect groups as well, for example, in regard to racial
discrimination. In turn, protection of groups naturally encompasses
protection of individual members of those groups; some rights attaching
to individuals qua group members are only exercisable in community with
other members of the group.65
(A) Non-Discrimination
International law contains a legal principle of non-discrimination on
grounds of race, articulated in the International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD).66 This
principle is based, in part, upon the UN Charter, especially Articles 55
and 56; the practice of organs of the UN (e.g. General Assembly
resolutions condemning apartheid); the Universal Declaration of Human
Rights; the International Covenants on Human Rights; and the regional
human rights conventions.67 In 1970 the International Court in Barcelona
Traction referred to obligations erga omnes as specifically including
‘protection from slavery and racial discrimination’.68 There is also a legal
principle of non-discrimination in matters of sex, based upon the same
set of multilateral instruments,69 together with the widely ratified
Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW) adopted in 1979.70
The principle of equality before the law allows for factual differences,
such as age, and is not based on mechanical conceptions of
equality.71 But any distinction drawn must have an objective justification;
the means adopted to establish different treatment must be proportionate
to the justification for differentiation; and there is a
References
(p. 646) burden of proof on the party seeking to invoke an exception to
the equality principle.72 ICERD Article 1(4) is of particular interest,
making it clear that differential treatment in the form of special measures
necessary to secure the advancement of certain disadvantaged groups is
73
not racial discrimination in the sense of the Convention.73 The Committee
on the Elimination of Racial Discrimination clarified the meaning of
‘special measures’ in its General Recommendation XXXII.74
The Declaration on the Elimination of All Forms of Intolerance and
Discrimination Based on Religion or Belief, adopted by the UN General
Assembly on 25 November 1981, completes the picture.75
In a significant determination in 2001 the European Court of Human
Rights held that discriminatory treatment as such could be categorized as
degrading treatment within the terms of Article 3 ECHR.76
(B) Self-Determination77
The idea of collective or group rights became prominent in connection
with the principle of self-determination, progenitor of the category of socalled ‘peoples’ rights’.78 Self-determination is articulated variously as
political principle, legal principle, and legal right.79 It has been understood
as the right of peoples under colonial, foreign, or alien domination to selfgovernment,80 whether through formation of a new state, association in a
federal state, or autonomy or assimilation in a unitary (non-federal)
state.81 In different contexts, however, self-determination can mean
different things,
References
(p. 647) and there is no universally accepted definition.82 On a general
level, it can be defined as ‘the right of a community which has a distinct
character to have this character reflected in the institutions of government
in which it lives’.83 The International Court has described selfdetermination as the ‘need to pay regard to the freely expressed will of
peoples’,84 but there has been wide disagreement over the meaning of
‘peoples’, not least in the context of indigenous and minority claims to
self-determination.
Common Article 1(1) of the ICCPR and ICESCR upholds the right of ‘all
peoples’ to self-determination, and Article 2 of the Arab Charter contains
similar wording. The African Charter on Human and Peoples’ Rights
recognizes the ‘unquestionable and inalienable right to self-
determination’ of all peoples (Article 20(1)). The advisory opinion of the
Court in Western Sahara confirms ‘the validity of the principle of selfdetermination’ in the context of that dispute.85 In the Wall opinion the
Court recognized the principle of self-determination as one of the rules
and principles relevant to the legality of the measure taken by Israel: the
effect of the wall, in conjunction with the settlement policy, was to impair if
not to preclude the exercise of the right of self-determination of the
people of Palestine in relation to the territory of Palestine as a whole.86
The development of the principle of self-determination in practice has led
to a pronounced distinction between the colonial and non-colonial
context, reflecting a distinction between full (‘external’) self-determination
and qualified (‘internal’) self-determination.87 The question of internal
self-determination, and the possibility of remedial secession, remain
controversial.88
(C) Rights of Minorities89
The need to protect the rights of racial, linguistic, and religious minority
groups within states has been recognized in a general way since the
minorities treaties of the interwar period,90 but there is still no agreed
definition of what constitutes a ‘minority’ in international law,91 and the
question of legal personality for minority groups as such
References
(p. 648) is fraught.92 States have traditionally been wary of recognizing
rights and status of minority groups within their territory, for fear of claims
to secession. The HRC has affirmed that minority rights are different from
the right to self-determination, and their enjoyment should not prejudice
states’ sovereignty and territorial integrity.93
The only multilateral treaty dealing specifically with minority rights is the
European Framework Convention for the Protection of National
Minorities, adopted by the Council of Europe in 1994.94 The Convention
articulates a comprehensive set of principles for the protection of national
minorities and persons belonging to those minorities. It covers individual
rights as well as provisions directed specifically at protecting the
95
existence and identity of minority groups as such.95 The decision to adopt
the Convention, rather than a proposed additional protocol to the
ECHR,96 attracted criticism. The task of monitoring implementation of the
treaty was thus assigned to an Advisory Committee of the Council of
Europe, not the Strasbourg Court. In practice, however, the Advisory
Committee has made a contribution to the development and enforcement
of Convention rights, and states clearly treat the Convention as a legal
commitment, despite the general, framework character of some of its
provisions.97
The position under general international law is rather different. The key
text is ICCPR Article 27 which protects the right of members of ethnic,
religious, and linguistic minorities, in community with other members, to
enjoy their own culture, profess and practise their own religion, and use
their own language; this is poised between an individual and a collective
rights guarantee, but emphasizes the individu-al.98 The interpretative
potential in Article 27 has been tested to an extent in individual
complaints before the HRC.99
In 1992 the General Assembly adopted the Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious or Linguistic
Minorities. The Declaration was intended to strengthen the
implementation of human rights relating to minorities, based on the
principles of non-exclusion, non-assimilation, and non-discrimination.100
References
(p. 649) It elaborates on the principle of protection of identity under
ICCPR Article 27, and moves towards promotion of identity.
(D) Rights of Indigenous Peoples101
The UN Declaration on the Rights of Indigenous Peoples was adopted in
2007 by a large majority of the General Assembly.102 The Declaration
resulted from a draft ing process that lasted more than 20 years, and was
noteworthy for the level of participation of indigenous groups and their
NGOs.103 This also produced changes within the UN structure, with the
creation of the UN Permanent Forum on Indigenous Issues as an
104
advisory body to the Economic and Social Council;104 the extension of
the mandate of the Special Rapporteur on the Situation of Human Rights
and Fundamental Freedoms of Indigenous Peoples;105 and the creation
of the Expert Mechanism on the Rights of Indigenous Peoples, subsidiary
to the Human Rights Council.106
Previously the only international instruments addressing indigenous
rights as such107 were two ILO Conventions with limited participation,
characterized by markedly state-driven perspectives.108 The Declaration
represents a shift away from that approach, promoting a more inclusive
and consultative relationship with indigenous peoples. Perhaps its most
significant feature is the proclamation in Article 3 that indigenous peoples
have the right to self-determination. Despite the wording of
ICCPR/ICESCR Article 1, recognizing the right of allpeoples to selfdetermination, for a long time states resisted recognizing indigenous
claims.109 The HRC refuses to entertain claims for violations of Article 1,
taking the view that inherently collective
References
(p. 650) claims cannot be brought under the individual complaints
procedure of the First Optional Protocol. The Committee has generally
treated indigenous claims as coming within the minority rights protections
of Article 27 instead.110 The explicit recognition of indigenous peoples’
right to self-determination in the Declaration is a significant change—
though achieved on the ‘understanding’ that self-determination for this
purpose does not equate to a right to secede, as distinct from negotiating
the terms of indigenous engagement with the state.111
Besides self-determination, the Declaration also affirms a range of
individual and group rights of importance to indigenous peoples, including
equality and freedom from discrimination,112 cultural identity and
integrity,113participation in decision-making,114 autonomy and selfgovernment,115 and traditional lands and natural resources.116 The term
‘indigenous peoples’ is, however, left undefined.117 As a General
Assembly resolution, the Declaration does not impose obligations on
states, but its symbolic weight should not be underestimated.118
(E) Other Collective Rights
The notion of rights being enjoyed by groups of persons collectively,
rather than as individuals, remains controversial. A distinction should be
made between rights attaching to individuals because of their status as
members of a group, and rights attaching to the group as such, which
individuals can in practice only enjoy in
References
(p. 651) community with others. The instruments on minority and
indigenous rights contain examples of both.
Beyond the specific rights of minorities and indigenous peoples,
international law recognizes some other collective rights, in particular, a
people’s right to freely dispose of its natural wealth and resources and
not to be deprived of its own means of subsistence (ICCPR/ICESCR
Article 1(2)). Examples of other putative collective rights include the right
to development,119 and the right to culture;120 by now, however, we are
approaching the useful limits of law if not of language.
5. Scope of Human Rights Standards: Some
General Issues
(A) Territorial and Personal Scope of Human Rights
Treaties
International human rights instruments typically do not define the precise
territorial and personal scope of the human rights protections they
contain. ECHR Article 1 provides that the parties shall secure the rights
and freedoms defined in Section 1 of the Convention ‘to everyone within
their jurisdiction’. A similar reference to ‘jurisdiction’ appears in Article 1 of
the American Convention on Human Rights. The African Charter is silent
on the issue. Other instruments refer to territorial jurisdiction but with no
mention of the personal scope of the rights they protect. The question is
whether states parties to human rights treaties are bound to apply their
protections extra-territorially, including to non-nationals. This arises
particularly in the context of armed conflict and belligerent occupation.121
The European Court of Human Rights has had to consider the scope of
ECHR Article 1 on a number of occasions. Before 2001, it was
reasonably settled that ‘jurisdiction’ in Article 1 is primarily
territorial,122 but that in some cases, acts of states parties performed or
producing effects outside their territories might also constitute an
exercise of jurisdiction.123 In particular, a line of cases involving the
Turkish occupation of northern Cyprus had established that where a state
party exercises effective
References
(p. 652) control of an area outside its national territory as a consequence
of military action, the fact of that control triggers the Article 1 obligation to
secure Convention rights and freedoms there.124 Another recognized
exception to territoriality is the personal model of extraterritorial
jurisdiction, arising when state agents exercise authority and control over
individuals outside the national territory.125
Banković v Belgium126 arose out of the airstrike under NATO auspices on
the Radio Televizija Srbije building in Belgrade during the Kosovo crisis in
1999. The victims or their representatives brought claims against 17
respondent states, members of NATO, and parties to the ECHR. The
Court found that the case fell beyond the scope of Article 1 and was
inadmissible.127 The victims and the applicants were located in the
territory of the Federal Republic of Yugoslavia (FRY), outside the
territorial jurisdiction of any of the respondent states.128 In this way the
Court appeared to limit the Convention’s extraterritorial application to
those areas within the regional legal space (espace juridique) of the
Convention, the territories of the members of the Council of Europe.129
Banković has been a source of some confusion in the caselaw,130 notably in the context of the invasion and occupation of Iraq in
2003. In Al-Skeini v UK relatives of six Iraqi civilians killed in incidents
involving British soldiers in south-east Iraq alleged that the British
authorities had failed adequately to investigate the deaths, which
occurred during the period in which the UK was an occupying power in
131
that region.131 The House of Lords held there was ‘jurisdiction’ only in the
case of one person, held in a detention facility,132 but the ECtHR found
that there was a sufficient jurisdictional link for Article 1 purposes in all six
cases.133 It ultimately found a violation of the procedural duty to
investigate the deaths, pursuant to Article 2, in five cases.134
The Court emphasized that determining whether or not Article 1 is
satisfied was a matter of considering the circumstances of each
case.135 It did not make a finding as to
References
(p. 653) whether or not the UK had ‘effective control’ of the area in
question. Instead, it based its decision on a fresh articulation of the ‘state
agent authority’ exception to territoriality recognized in previous cases:
the exercise by state agents of physical power and control over the
person in question.136 It was relevant that the applicants’ relatives were
killed in the course of security operations while the UK was responsible
for the exercise of some of the public powers in that region;137 this
distinguishes Al-Skeini from Banković. But if Al-Skeini cannot be said to
overrule Banković, it qualifies it in certain respects. First, jurisdiction
under Article 1 is not necessarily restricted to the regional espace
juridique of the Convention.138 Second, the state exercising jurisdiction
has an obligation to secure the rights and freedoms that are relevant to
that individual’s particular situation; in that sense, the rights and
obligations in the Convention can be ‘divided and tailored’.139
The HRC has observed that ICCPR Article 2(1) requires states parties to
ensure and respect the Covenant rights of ‘anyone within their power or
effective control, even if not situated within the territory of the state party’,
and that this requirement is not limited to citizens; it also includes
situations where the state is acting outside its own territory and situations
of armed conflict.140
The International Court has also considered the issue. It concluded in
the Wall opinion that Israel was bound to apply the provisions of human
rights instruments to which it was a party in the Occupied Palestinian
Territory, observing that its position was consistent with that of the
HRC.141 The Court reiterated its finding that international human rights
instruments are applicable ‘in respect of acts done by a State in the
exercise of its jurisdiction outside its own territory, particularly in occupied
territories’ in respect of Uganda’s occupation of the Congolese province
of Ituri.142
(B) Human Rights and Humanitarian Law
This jurisdictional finding adds importance to the relationship between
international human rights and humanitarian law.143 The conventional
view saw the two regimes
References
(p. 654) as mutually exclusive, the former applicable in peacetime, the
latter in time of armed conflict. This strict dualism is no longer observed:
the two fields are now generally understood to be complementary, not
alternative.144 In short, human rights standards may also be applicable
during armed conflict.145
The International Court has described the basic standards of
humanitarian law as ‘elementary considerations of humanity, even more
exacting in peace than in war’,146 and has held the rules of Common
Article 3 of the four Geneva Conventions of 12 August 1949 to be a
‘minimum yardstick’ of treatment in all international and non-international
armed conflicts.147 In Nuclear Weapons, the Court stated that in principle
human rights obligations do not cease in times of armed conflict (unless
derogations are permitted by the relevant treaty), but that international
humanitarian law may operate as a lex specialis excluding more general
human rights standards.148 In other contexts, for example belligerent
occupation, it may even be that international human rights law constitutes
the more specialized standard.149
Despite the shift towards a more nuanced understanding of the
relationship, uncertainty remains in respect of various issues including
norm conflicts,150 fragmentation,151 and whether humanitarian law
provides a lower level of protection than human rights law.152 The
classification of the so-called ‘war on terror’ as an armed conflict153 also
raised human rights concerns. Critics have questioned whether the
campaign against al-Qaeda meets the threshold humanitarian law test for
the existence of a state of armed conflict, particularly those aspects
which have been carried out beyond the active combat zones of Iraq and
Afghanistan. Designating the campaign as an armed conflict subject to
international humanitarian law, instead of ordinary human rights and
criminal law, has facilitated certain operations that would violate
international law in the absence of an armed conflict.154
References
(p. 655) (C) Human Rights in the Private Domain: Issues of
‘Horizontal Application’155
To what extent do human rights obligations extend to provide protection
against private conduct? Where states are under a positive obligation to
protect individuals within their jurisdiction, human rights will indirectly
apply to private conduct, with the state acting in a measure as
guarantor.156 However, there is ongoing debate over whether
international human rights law can also produce a ‘horizontal’ effect, or
whether states have a monopoly of human rights responsibility. On one
view the implications of a guarantee of human rights must extend to
private action, and the absence of any institutional expression of that idea
is a merely temporary defect. According to another view, it is national not
international law which (leaving international crimes to one side)
necessarily creates individual responsibility: the focus of the international
human rights system remains on states as obligors. In recent years there
has been something of an ‘end-run’ around this theoretical impasse
through the development of practices of corporate social
responsibility.157 Steps were taken to develop a draft Declaration on
Human Social Responsibilities,158 and Norms on the Responsibilities of
Transnational Corporations and Other Business Enterprises with Regard
to Human Rights.159 In 2005 John Ruggie was appointed Special
Representative of the Secretary-General on the Issue of Human Rights
and Transnational Corporations and Other Business Enterprises, and he
reported to the Human Rights Council in 2008.160
Supporters of these developments see them as filling a gap in global
standards, serving to balance the power wielded by transnational
corporations and other private enti-ties.161 Critics warn that expanding
responsibility for human rights violations may help states evade their own
responsibility,162 and (more subtly) that holding transnational (p.
656) corporations accountable may imply regulatory prerogatives which
corporations do not and should not have.163 Codes of conduct are all
very well, but they influence only the willing and are no substitute for
enforcement by the state and (at the international level) against the state,
using existing channels of accountability.
At present, no international processes exist that bind private businesses
to protect human rights.164 Decisions of international tribunals focus on
states’ responsibility for preventing human rights abuses by those within
their jurisdiction.165 Nor is corporate liability for human rights violations
yet recognized under customary international law.166
6. Protection and Enforcement of Human Rights
(A) Protection and Enforcement under the United Nations
System
(i) Action under the Charter
UN political organs have sometimes been prepared to exercise a general
power of investigation and supervision in this field, but they have difficulty
in dealing with particular cases; discussion normally centres on political
implications and is oft en partisan. Nevertheless publicity, fact-finding
machinery, and other ‘measures’ under Article 14 of the Charter can be
useful.
For a long time the nearest approach to permanent machinery was the
Commission on Human Rights, set up by the Economic and Social
Council in 1946. Its principal function has been the preparation of various
declarations (starting with the Universal Declaration) and other texts.
Since 1967 the Commission has established investigatory procedures
(the 1235 Procedure) in respect of country-specific complaints of gross
violations.167
In 2006 growing unease with the way in which the Commission was
functioning led to its replacement by the Human Rights Council,
consisting of 47 member states.168 So far the substitution seems to have
made little difference.
References
(p. 657) The General Assembly lacks enforcement powers under the
Charter. But it has frequently expressed concern about human rights
violations occurring in different parts of the world. The Security Council
was unable to act effectively, prior to the end of the Cold War, because of
the veto, but did use its powers of investigation under Chapter VI from
time to time, as in relation to the situation arising in South Africa (1960).
In the period after 1990 the Council began to use its powers in respect of
peacekeeping and, on the basis of Chapter VII, to ensure the provision of
humanitarian assistance, as in the case of Somalia in 1992.169 Extensive
operations were undertaken in Bosnia in 1993 with the stated purpose of
delivering humanitarian assistance. The mandate also included the
creation of safe areas and the power to use force to protect UNestablished safe areas. These various operations were based upon
powers delegated to member States by the Security Council. In 1994 the
Council authorized certain member states, on a short-term basis, to
establish a safe haven in Rwanda for the protection of displaced persons,
refugees, and civilians at risk, but the failure to act earlier to prevent the
humanitarian catastrophe in Rwanda has been strongly criticized.170
Since that time the Council has authorized several peacekeeping
operations;171 it has also authorized forcible intervention in the Libyan
Arab Jamahiriya for the protection of civilians, without the consent of the
territorial state.172 In other cases, however, such as Darfur in Sudan, the
consensus recorded at the 2005 World Summit on the existence of a
‘responsibility to protect’ has failed to translate into collective action.
Verbally the ‘responsibility to protect’ gains broad acceptance; in truth it
states the problem without resolving it; and current articulations fall well
short of holding that states have a right to forcibly intervene, without
Security Council authorization, to alleviate humanitarian crises.173
The Security Council can also use its Chapter VII powers to refer
situations to the International Criminal Court when crimes within the
Court’s jurisdiction appear to have been committed.174 The Council has
exercised this power in respect of Sudan175 and Libya.176
(p. 658) (ii) Treaty bodies
It is impossible in a general work to provide a detailed picture of the
multiform institutions involved in the protection of human
rights.177 However, even in a small compass, attention must be drawn to
certain other organs. There are now nine bodies responsible for
monitoring implementation of the core international human rights treaties,
including the CESCR and HRC. In temporal sequence they are as set out
in Table 29.2.
Table 29.2 Implementation of international human rights treaties178
Committee
Convention
Commenced
Committee on the Elimination
of Racial Discrimination
(CERD)
International Convention
on the Elimination of All
Forms Racial
Discrimination179
1970
Human Rights Committee
(HRC)
ICCPR180
1976
Committee on the Elimination
of Discrimination against
Women (CEDAW)
Convention on the
Elimination of All Forms
of Discrimination against
Women181
1981
Committee against Torture
(CAT)
Convention against
Torture and other Cruel,
Inhuman or Degrading
Treatment or
Punishment182
Comment
Optional
Protocol
(1966)
Optional
Protocol
(2002)
created
system of
regular
visits to
prisons and
other places
of
detention183
ICESCR184
1986
Convention on the Rights
of the Child185
1991
Committee on the Protection of
the Rights of All Migrant
Workers and Members of their
Families (Committee on
Migrant Workers, CMW)
International Convention
for the Protection of the
Rights of All Migrant
Workers and Members of
their Families186
2004
Committee on the Rights of
Persons with Disabilities
(CRPD)
Convention on the Rights
of Persons with
Disabilities187
2009
Committee on Enforced
Disappearances (CED)
International Convention
for the Protection of All
Persons from Enforced
Disappearance188
2011
Committee on Economic,
Social and Cultural Rights
(CESCR)
References
Optional
Protocol
(2008)
(p. 659) Committee on the
Rights of the Child (CRC)
Optional
Protocol
(2006)
The International Court has indicated that when considering issues
arising in relation to the human rights treaties, it will ascribe ‘great weight’
to the interpretation of the treaty adopted by the relevant court or
committee.188
The treaty body system has faced major challenges with respect to
resources and coherence, amongst other things, and there have been
many proposals for its reform. The Dublin Statement on the Process of
Strengthening of the UN Human Rights Treaty Body System of 19
November 2009 represents an attempt by 35 serving or former members
of UN treaty bodies to create a roadmap for reform and galvanize the
debate.189
(iii) The High Commissioner for Human Rights
In 1993, the General Assembly created the office of UN High
Commissioner for Human Rights,190 whose principal task is to provide
leadership in the human rights field.191
References
(p. 660) (B) Regional Machinery
There is machinery for the judicial protection of human rights on a
regional basis in Europe, the Americas, and Africa and the Arab
world.192 The emphasis here will be on judicial protection.
(i) Europe
The ECHR193 is a comprehensive bill of rights on the Western liberal
model, born of the Council of Europe. The contracting parties undertake
to secure to ‘everyone within their jurisdiction’ the rights and freedoms
defined in Section I of the Convention. The precise definition therein has
enabled some of the parties to incorporate the rights in their national law
as self-executing provisions. In order to make the draft acceptable to
governments, certain qualifications on its field of application had to be
incorporated. Article 17 provides: ‘Nothing in this Convention may be
interpreted as implying for any State, group or person any right to engage
in any activity or perform any act aimed at the destruction of any of the
rights and freedoms set forth herein’. Article 15 permits measures
derogating from the obligations under the Convention ‘in time of war or
other public emergency threatening the life of the nation’. However, no
derogation is permitted under this provision from Articles 2 (right to life)
(except in respect of deaths resulting from lawful acts of war), 3 (torture
and inhuman punishment), 4(1) (slavery or servitude), and 7 (no
retrospective punishment).
The human rights protected by the treaty were originally implemented by
three organs: the European Commission of Human Rights, the European
Court of Human Rights, and the Committee of Ministers of the Council of
Europe. Of those, the principal organ was the European Commission
which received every complaint: individual complainants had standing if
the government concerned had recognized the competence of the
Commission to receive petitions from individuals. In November 1998 this
structure was replaced by a new system.194 Now the European Court of
Human Rights deals with both individual applications and interstate
cases, and the Commission has been abolished.
The Court has been a major influence in the development of European
human rights law, in matters major and minor. It has produced many
changes in national legislation and practice.195 Cases of non-compliance
have been relatively few. However, the Court
References
(p. 661) has been to an extent a victim of its own success; it is inundated
with cases and has a substantial backlog.196 Various reforms involving
greater selectivity in caseload are being implemented or are under
consideration.197
(ii) The Americas198
The Inter-American system for the protection of human rights is complex,
mainly because it consists of two overlapping mechanisms with different
diplomatic starting points. In the first place the Inter-American
Commission on Human Rights was created in 1960 as an organ of the
Organization of American States (OAS) with the function of promoting
respect for human rights. As amended by the Protocol of Buenos
Aires,199 the OAS Charter contains a substantial list of economic, social,
and cultural standards, and the Commission, as reordered in accordance
with the American Convention on Human Rights200 of 1969, has an
extensive competence in these matters in relation to OAS members. On
the basis of this Convention an additional system for the promotion of
human rights was created. The Inter-American Commission of Human
Rights was re-established and retains its broad powers within the context
of the OAS (Articles 41 to 43). At the same time the Commission has
responsibilities arising from the provisions of the American Convention.
Thus it has jurisdiction ipso facto to hear complaints against the parties
from individual petitioners (Article 44). In addition, the Commission may
deal with interstate disputes provided that both parties have made a
declaration recognizing its competence in this respect (Article 45).
In accordance with the American Convention (Articles 52 to 69) an InterAmerican Court of Human Rights began to function in 1979. The Court
has an adjudicatory jurisdiction according to which the Commission and,
if they expressly accept this form of jurisdiction, the states parties may
submit cases concerning the interpretation and application of the
Convention (Articles 61 to 63). Article 64 creates an advisory jurisdiction
according to which OAS member states (and the organs listed in Chapter
X of the Charter of the OAS) may consult the Court regarding
‘interpretation of this Convention or of other treaties concerning the
protection of human rights in the
References
(p. 662) American States’.201 In general the Court has been an innovator,
notably with respect to remedies.202
In general the American Convention draws upon the ECHR, the
American Declaration of the Rights and Duties of Man (1948),203 and the
ICCPR, and the result is a very extensive set of provisions. Only OAS
members have the right to become parties; to date 25 of the 35 OAS
members have done so.
In practice the Inter-American Commission has exercised its OAS
competence in respect of petitions (concerning the execution of juveniles)
on behalf of individuals, against the US, which is not a party to the
American Convention, but was held to be bound by the American
Declaration of the Rights and Duties of Man.204
(iii) Africa
On 17 June 1981 the Organization of African Unity (OAU) adopted the
African Charter on Human and Peoples’ Rights.205 While the Charter has
much in common with its European and American predecessors, it has
features of its own.206 Not only are rights of ‘every individual’ specified,
but also duties (Chapter II). Several provisions (Articles 19 to 24) define
the rights of ‘peoples’, for example, to ‘freely dispose of their wealth and
resources’ (Article 21). Some of these provisions are framed in vague
language, for example Article 24, which provides that ‘all peoples shall
have the right to a general satisfactory environment favourable to their
development’. There are no derogation clauses comparable to Article 15
ECHR (war or other public emergency).
In the sphere of institutional safeguards, the main organ has been the
African Commission on Human and Peoples’ Rights. The Commission’s
mandate is in very general terms, and includes the interpretation of the
Charter at the request of a state party, an institution of the OAU, or an
African organization recognized by the OAU (Article 45). The emphasis is
on conciliation. The Commission may investigate complaints by states
(Articles 47 to 54) and endeavour to reach an amicable solution (Articles
52 to 53). The Commission may also consider complaints
(‘communications’) from individuals (Articles 55 to 56). Only where a
complaint reveals ‘a series of serious or massive
References
(p. 663) violations’ is the Commission bound to involve the OAU
Assembly, which ‘may then request the Commission to undertake an indepth study of these cases, and make a factual report, accompanied by
its findings and recommendations’ (Article 58). The Commission
developed an increasingly judicialized procedure and jurisprudence,
despite the lack of an explicit mandate to consider individual
communications.207
For some time the Commission was the only implementation agency.
Since 1998, however, there have been various institutional changes. In
1998, the OAU adopted a Protocol on the Establishment of the African
Court on Human and Peoples’ Rights (‘the African Court
Protocol’).208 Two years later, the OAU was replaced by the African
Union, with its Constitutive Act of 11 July 2000.209 Article 5(1)(d) of the
Constitutive Act established a Court of Justice. The Assembly of the AU
adopted a Protocol of the Court of Justice of the African Union on 11 July
2003.210 In 2004, however, the Assembly decided to merge the two
institutions to form a single Court of Justice and Human Rights.211 A
Protocol on the Statute of the African Court of Justice and Human Rights
was adopted on 1 July 2008; it will come into force 30 days aft er the fift
eenth ratification, not yet in sight.212
(C) Supervision: Key Legal Issues
The work of the European Commission and the European Court of
Human Rights over a long period has produced a set of legal concepts.
These concepts, or variations of them, are also to be found in decisions
under the other regional conventions. They rest in part upon the political
premises that the respondent state is itself democratic and that there
must be a fair balance between the general interest and the interests of
the individual.
(i) Exhaustion of local remedies213
Article 35(1) ECHR provides that ‘the Court may only deal with the matter
aft er all domestic remedies have been exhausted, according to the
generally recognized rules of international law and within a period of six
months from the date when the final decision was taken’. This reflects the
role of the Court, which is supervisory and not
References
(p. 664) appellate.214 But the Court will not require recourse to local
remedies if the violation originates in an administrative practice of the
respondent state.215 Provisions on the exhaustion of local remedies are
similarly found in Article 46(1)(a) of the American Convention216 and
Articles 50 and 56(5) of the African Charter.217
(ii) Restrictions upon freedoms ‘necessary in a democratic
society’218
Key provisions in ECHR are expressed to be subject to restrictions which
are ‘necessary in a democratic society’. In Silver v UK, the Court
explained the general principles:
(a) the adjective ‘necessary’ is not synonymous with
‘indispensable’, neither has it the flexibility of such expressions as
‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’…;
(b) the Contracting States enjoy a certain but not unlimited margin
of appreciation in the matter of the imposition of restrictions, but it
is for the Court to give the final ruling on whether they are
compatible with the Convention…;
(c) the phrase ‘necessary in a democratic society’ means that, to
be compatible with the Convention, the interference must, inter
alia, correspond to a ‘pressing social need’ and be ‘proportionate
to the legitimate aim pursued’…;
(d) those paragraphs of…the Convention which provide for an
exception to a right guaranteed are to be narrowly interpreted…219
The issue arises regularly in cases concerning the right to respect for
private and family life;220 freedom of thought, conscience, and
religion;221 freedom of expression;222 and freedom of assembly.223
The American Convention mirrors the wording of the ECHR with its
reference to restrictions ‘necessary in a democratic society’ (e.g. Articles
15, 16(2), 22(3)).224 By
References
(p. 665) contrast, the text of the African Charter makes no mention of
democratic society in its provisions for limitations of rights: for example
Article 11 refers to ‘necessary restrictions provided for by law in particular
those enacted in the interest of national security, the safety, health, ethics
and rights and freedoms of others’ and Article 12 permits ‘restrictions,
provided for by law, for the protection of national security, law and order,
public health or morality’. Article 27(2), cited in the jurisprudence as
containing ‘the only legitimate reasons for restricting the rights and
freedoms contained in the Charter’,225 provides that ‘the rights and
freedoms of each individual shall be exercised with due regard to the
rights of others, collective security, morality and common interest’.
(iii) Proportionality: the balance between the general interest and
the interests of the individual
The ECHR seeks to maintain a balance between the general interest (a
pressing social need) and the rights and interests of the individual. To this
end the Court applies a principle of proportionality. In Dudgeon, the Court
said:
[I]n Article 8…the notion of ‘necessity’ is linked to that of a ‘democratic society’.
According to the Court’s case-law, a restriction on a Convention right cannot be regarded
as ‘necessary in a democratic society’—two hallmarks of which are tolerance and
broadmindedness— unless, amongst other things, it is proportionate to the legitimate
aim pursued…226
Notwithstanding the margin of appreciation left to the national authorities,
the question of proportionality is ultimately one for the Court.
Proportionality has played a major role in the jurisprudence.227 Whilst it is
on its face a logical principle, it inevitably entails significant policy
choices. In Fogarty v UK228 the Court held that, as an aspect of
proportionality, it was appropriate to interpret the Convention as far as
possible in harmony with other rules of international law, including those
relating to state immunity. The proportionality principle has also been a
significant feature of the American229 and African jurisprudence.230
(iv) Derogation ‘in time of national emergency’
As noted above, Article 15 ECHR permits derogation from the obligation
to comply with its provisions ‘in time of war or other public emergency
threatening the life
References
(p. 666) of the nation’, although certain provisions are specified as nonderogable: Articles 2 (right to life, except insofar as death is caused by
lawful acts of war), 3 (prohibition of torture), 4(1) (prohibition of slavery),
and 7 (prohibition of punishment without law). Similarly, allowance for
‘suspension of guarantees’ in time of ‘war, public danger, or other
emergency that threatens the independence or security of a State Party’
is provided in Article 27 of the American Convention, with Article 27(2)
excluding a wider range of provisions from derogation than the ECHR.231
No such derogation provision appears in the African Charter. The African
Commission has emphasized that ‘the lack of a derogation clause means
that limitations on the rights and freedoms in the Charter cannot be
justified by emergencies or special circumstances. The only legitimate
reasons for limitations of the rights and freedoms of the African Charter
are found in article 27(2)’.232
(v) The margin of appreciation233
This takes the form of a legal discretion which recognizes that the
respondent state can be presumed to be best qualified to appreciate the
necessities of a particular situation affecting its jurisdiction. The margin of
appreciation is also applied in practice under the American and African
frameworks,234 although the term has been avoided by the InterAmerican Court and the Human Rights Committee and raises its own
problems of appreciation.
Nonetheless something like it is inevitable if we are not to have
government by judiciary or—in the international context—by quasijudiciary. In James, the European Court of Human Rights, rejecting a
complaint against British leasehold reform legislation, observed that
national authorities are best placed to determine what is in the public
interest, and enjoy a wide discretion in implementing social and economic
policies. The Court will respect that discretion, but only as long as it is not
manifestly without reasonable foundation: ‘although the Court cannot
substitute its own assessment for that of the national authorities, it is
bound to review the contested measures under Article 1 of Protocol No 1
and, in so doing, to make an inquiry into the facts with reference to which
the national authorities acted’.235
References
(p. 667) (vi) Complaints and proceedings at national level
The classical and still general method of enforcement is by means of the
duty of performance of treaty undertakings imposed on the states parties.
It is the domestic legal systems of the states parties to the given treaty
which are the primary vehicles of implementation. Thus the ICCPR
contains express provisions setting forth the duty to ensure that domestic
law provides sufficient means of maintenance of treaty stand-ards.236 It is
also a characteristic of such treaties that the means of implementing the
treaty provisions are a matter of domestic jurisdiction. In this context it is
helpful to recall Robert Jennings’ remonstrance that it is a mistake to
think of domestic jurisdiction ‘in “either/or” terms’.237
In some cases, the absence of an official investigation may constitute
evidence of a breach. In a series of decisions the European Court has
responded to the extraordinary circumstances prevailing in certain
regions of Turkey. In order to deal effectively with cases involving illtreatment,238 disappearances,239 the destruction of a village,240 the death
of the applicant’s sister,241 and shooting by unidentified persons,242 the
Court has relied upon the evidence of a lack of effective investigation, or
of any investigation, by the authorities, as evidence of violations of Article
2 (right to life),243 Article 3 (prohibition of torture), Article 5 (right to liberty
and security of person), and Article 8 (right to home and family life). In
addition, such lack of an effective investigation has been held to
constitute a violation of Article 13 (right to an effective remedy).244 Similar
principles have been applied by the Inter-American Court of Human
Rights,245 the Human Rights Committee,246 and the African
Commission.247
7. An Evaluation
This account of human rights is, it should be emphasized, an analysis
from the perspective of public international law. This approach is
appropriate for several reasons,
References
(p. 668) including the fact that human rights as legal standards were
primarily the work of international lawyers; so too the normative
development of such standards through the various institutions.
An evaluation of the existing human rights system must begin by placing
emphasis on three elements. In the first place, the ‘system’ depends for
its efficacy upon the domestic legal systems of states. The decisions and
recommendations of the supervisory and monitoring bodies can only be
implemented by means of the legislatures and administrations of the
states parties to the various standard-setting conventions. Secondly, the
application of human rights forms part of a larger aim, belief in, and
maintenance of, the rule of law, including the existence of an independent
judiciary: overall the human rights bodies have been a very positive
influence in this regard. The third element is related to the second.
Adherence to human rights instruments presupposes that the states
adhering will apply the standards. In practice, such a system fails when it
has to face the worst case scenarios and a recalcitrant respondent state.
Practitioners within the Strasbourg system (and governments) are well
aware of the failure of Turkey to implement decisions of the European
Court of Human Rights, including the case of Loizidou v Turkey,248 and
the judgments in the series of applications brought by the Republic of
Cyprus against Turkey. These cases concern the rights of large groups,
and long-lasting, intractable situations.
The question of the efficacy of the system of human rights leads to a
wider problem. On occasion the Security Council may decide to take
coercive action under Chapter VII of the Charter, avowedly to deal with
the worst cases. This may appear to be the solution. But, in practice,
such action has been taken on a selective basis and has been shadowed
by ad hoc geopolitical reasons unconnected with human rights. This
element of discrimination can best be illustrated by instances of failure to
act, in particular, the failure of the Security Council to take any action in
face of the gross and persistent measures of discrimination and breaches
of humanitarian law on the part of Israel against the Palestinian people
and their institutions.249 The issue of selectivity can lead to claims of
human rights violations being used as nothing more than a powerful
political weapon.
Perhaps the most egregious example is provided by the case of Iraq. The
Iraq–Iran War raged for eight years (1980–88). Iran was not the
aggressor. There were several hundred thousand military and civilian
casualties. During the conflict leading Western powers gave assistance
to the Iraqi government in the form of matrices for chemical weapons
(which were used against Iran) and satellite intelligence. The Security
Council took no action under Chapter VII or otherwise. In contrast, in the
period from 1991 up to the US-led attack on Iraq in March 2003, the
same states took a strong line on the human rights record of the Iraqi
regime and the attack was justified in part by reference to the human
rights factor. Here is revealed a purely cyclical, if not (p. 669) cynical,
version of human rights, contingent upon collateral political
considerations. Similar criticisms of selectivity could be applied to the
Human Rights Commission, now the Council.
Problems of consistency and efficacy affect all systems of law, not only
public international law and human rights. The often appalling realities of
power politics must be balanced against the 50 years of successful
formulation of legal standards of human rights and the development of
mechanisms of supervision and monitoring. These at least put the
question of enforcement on the agenda.
Three further criticisms of the international human rights system deserve
attention. The first is the Marxian critique that the system replicates
liberal values and operates through liberal institutions which tend to
reinforce class divisions within society, keeping power in the hands of the
powerful and leaving those belonging to subordinated sectors to fall
through the gaps.250 This is certainly true to some degree— although it is
significant that those criticizing the system on such grounds rarely
advocate its destruction.251
The second is that the system is ‘Eurocentric’.252 While this too may be
true, certainly historically, it is less true than it was, and again the critics
do not advocate return to some (unachievable) status quo ante. The
Inter-American system has gone its own way, as compared to
Strasbourg, and the African system will likewise develop according to the
region’s own characteristics and priorities. The human rights treaties
have been widely ratified by countries outside Europe and the West.
Although the Universal Declaration was Western in its origin and focus,
the human rights system has evolved considerably since 1948. More
recent instruments are based on a broader consensus following
negotiation between the representatives of states and, to a lesser extent,
cultures.253
A third criticism is that the system operates under a democratic deficit; in
other words, unelected judges and experts sitting in international
tribunals and committees are making important decisions of public policy
that should be left to elected officials within states.254 A short answer is
that these tribunals and committees are mandated to act by treaties that
have been ratified by states; their authority derives from state consent. A
longer answer is that international human rights are part of an
international law in which state rights and prerogatives (reflecting, in
normal circumstances, the autonomy of the community of the state) are
set alongside and judged by reference (p. 670) to the products of state
consent. Each system retains a margin of appreciation (explicitly or
implicitly); none is immune from judgement in terms of the other. There is
no imperium, rather a dialectic of consent.
There is a close analogy in the system of closer union which is the EU,
and its relation to fundamental rights at the level of the ECHR as well as
of national law. Thus the German Federal Constitutional Court declined to
rule that laws derived from the Treaty of Maastricht which allegedly took
away rights protected by the Federal Constitution were invalid. The Court
noted that Community law and domestic law were independent systems,
operating side by side; the organs of one system were not competent to
assess the interpretation and observance of the laws of the other.255 The
allegation of a violation had to be assessed against the fundamental
guarantees inherent in Community law.256 In normal circumstances,
Community law could not be subject to constitutional review by municipal
courts without calling into question the legal basis of the Community
itself. At the same time, Community law cannot release member states
from their obligations under the ECHR.257 Each system retains
competence to inspect the other system and to intervene if there is a
sufficiently serious interference with rights. The principle of equivalent
protection holds that as long as equivalent rights are protected by the
regional human rights system, the state does not breach its obligations to
the individual; otherwise there could never be interstate cooperation as
envisaged by states when entering the Community. By contrast, an
arbitrary refusal to comply with rights is not excused, for example on the
grounds that the state is complying with a Security Council
resolution.258 There must be a presumption that the Security Council
does not intend to impose obligations on states to violate fundamental
human rights.259 But it is, in the last resort, only a presumption. National
systems are judged, or at least appraised, in terms they have formally
accepted. They are not silenced.
References
Footnotes:
1
Lauterpacht, An International Bill of the Rights of Man (1945);
Lauterpacht, International Law and Human Rights (1950). Further:
McDougal, Lasswell & Chen, Human Rights and World Public
Order (1980); Henkin (ed), The International Billof Rights (1981);
Alston, The United Nations and Human Rights (1992);
Jayawickrama, The Judicial Application of Human Rights
Law (2002); Steiner, Alston & Goodman (eds), International Human
Rights in Context (3rd edn, 2008); Moeckli, Shah & Sivakumaran
(eds), International Human Rights Law (2010); Rehman, International
Human Rights Law(2nd edn, 2010); Parlett, The Individual in the
International Legal System (2011); Tyagi, The UN Human Rights
Committee (2011).
2
Preamble, Arts 1, 55(c), 56. Also: Arts 62, 68, 76.
3
An important precursor was the anti-slavery movement: Davis, The
Problem of Slavery in the Age of Revolution, 1770–1823 (1999);
Miers, Slavery in the Twentieth Century (2003) 1–46; Weissbrodt,
‘Slavery’ (2007) MPEPIL; Martinez, The Slave Trade and the Origins of
International Human Rights Law (2012). Key steps towards a
comprehensive international legal prohibition of slavery included the
Slavery Convention, 25 September 1926, 60 LNTS 254, the Convention
for the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others, 21 March 1950, 96 UNTS 271, and the
Supplementary Convention on the Abolition of Slavery, the Slave Trade,
and Institutions and Practices Similar to Slavery, 7 September 1956, 266
UNTS 3. The struggle against ‘modern’ forms of servitude continues:
e.g. Rassam (1999) 39 Va JIL 303; Miers (2003). See also chapter 13.
4
On the minorities system: McKean, Equality and Discrimination under
International Law (1983) 14–26; Thornberry, International Law and the
Rights of Minorities (1991) 38–52. On mandates: Wright, Mandates under
the League (1930); Knop, Diversity and Self-Determination in
International Law (2002) 198–200; Parlett (2011) 287–91.
5
5
Miller, 2 The Drafting of the League Covenant (1928) 229, 323–5.
6
Russell & Muther, A History of the United Nations Charter (1958) 323–
9, 777–89.
7
Commission of Human Rights, Study of the Legal Validity of the
Undertakings Concerning Minorities, E/CN.4/367, 7 April 1950, 70–1.
This is the only occasion a whole group of treaties was held to have
lapsed on grounds of rebus sic stantibus. For criticism of the study:
Parlett (2011) 286–7. But the Court refused to hold that the mandates
had lapsed: International Status of South West Africa, ICJ Reports 1950
p 128, 132–6.
8
See Jenks, Social Justice in the Law of Nations (1970); McNair, The
Expansion of International Law (1962) 29–52; Wolf, in Meron (ed),
2 Human Rights in International Law (1984) 273; Swepston, in
Symonides (ed), Human Rights (2003) 91–109; Rodgers, Swepston, Lee
& van Daele (eds), The International Labour Organization and the Quest
for Social Justice, 1919–2009 (2009); Servais, International Labour
Law (2nd edn, 2009); van Daele (ed), ILO Histories (2010).
9
Other key developments included the creation of the International
Institute for Labour Studies in 1960, an amendment to the Constitution in
June 1986 affecting core aspects of the ILO’s function and structure (not
yet in force), the adoption of the Active Partnership Policy in 1993 to
strengthen the ILO’s field structure, and the establishment of the
independent World Commission on the Social Dimension of Globalization
in 2002.
See www.ilo.org/public/english/support/lib/resource/subject/history.htm.
On the impact of the 1998 ILO Declaration on Fundamental Principles
and Rights at Work: Alston(2004) 15 EJIL 457.
10
GA Res 217(III), 10 December 1948; Alfredsson & Eide (eds), The
Universal Declaration of Human Rights (1999); Jaichand & Suksi
(eds), Sixty Years of the Universal Declaration of Human Rights in
Europe (2009); Baderin & Ssenyonjo (eds), International Human Rights
Law (2010).
11
For domestic recourse to the UDHR: e.g. In re Flesche (1949) 16 ILR
266, 269; Duggan v Tapley (1951) 18 ILR 336, 342; Robinson v
Secretary-General of the UN (1952) 19 ILR 494, 496; Extradition of
Greek National (Germany) (1955) 22 ILR 520, 524; American European
Beth-El Mission v Minister of Social Welfare (1967) 47 ILR 205, 207–
8; Iranian Naturalization (1968) 60 ILR 204, 207; Waddington v
Miah [1974] 1 WLR 683, 694; M v UN and Belgium (1969) 69 ILR 139,
142–3; Police v Labat (1970) 70 ILR 191, 203; Basic Right to
Marry (1971) 72 ILR 295, 298; Charan Lal Sahu v Union of India (1989)
118 ILR 451. Further: Hannum (1995–96) 25 Ga JICL 287.
12
4 November 1950, ETS 5: e.g. Golder (1975) 57 ILR 200, 216–17.
13
United States Diplomatic and Consular Staff in Tehran (US v Iran), ICJ
Reports 1980 p 3, 42.
14
Some US writers have laid emphasis on the Universal Declaration as
custom, given the weaknesses and lacunae in subsequent US human
rights treaty practice: e.g. Sohn (1977) 12 Texas ILJ 129, 133; Lillich
(1995–96) 25 Ga JICL 1; Hannum (1995–96) 25 Ga JICL 287.
15
1 August 1975, 14 ILM 1292.
16
US Digest (1975) 325–7.
17
Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v US), ICJ Reports 1986 p 14, 100; also 133.
18
E.g. van der Stoel (1995) 6 Helsinki Monitor 23; Brett (1996)
18 HRQ 668.
19
GA Res 48/141, 20 December 1993.
20
Endorsed by GA Res 50/203, 23 February 1996.
21
GA Res 55/2, 8 September 2000.
22
GA Res 2200A(XXI), 16 December 1966; respectively 993 UNTS 3
and 999 UNTS 171.
23
Ibid. See Schwelb, in Eide & Schou (eds), International Protection of
Human Rights (1968) 103; Meron, Human Rights Law-Making in the
United Nations (1986) 83–127; Craven, The International Covenant on
Economic, Social and Cultural Rights (1995); Joseph, Schultz &
Castan, International Covenant on Civil and Political Rights (2nd edn,
2004); Nowak, UN Covenant on Civil and Political Rights (2nd edn,
2005).
24
24
GA Res 44/128, 15 December 1989; 1642 UNTS 414.
25
GA Res 63/117, 10 December 2008.
26
See Eide, Krause & Rosas (eds) Economic, Social and Cultural
Rights (2nd edn, 2001); Ssenyonjo (ed), Economic, Social and Cultural
Rights (2011). On the basis of Arts 11–12 of the Covenant, CESCR has
held that there is a human right to water: General Comment 15 (2002)
E/C.12/2002/11; for a critique see Tully (2005) 23 NQHR 43.
27
See Alston, in Alston (1992) 473; Craven (1995) 30–105; Craven, in
Eide, Krause & Rosas (2nd edn, 2001) 455.
28
Generally: Rodley, in Krause & Scheinin (eds), International Protection
of Human Rights (2009) ch 6.
29
The firmness of the stipulation is placed in question by para 2, which
makes it apparent that states may become parties on the basis of
a promise to bring their legislation into line with the obligations of the
Covenant: see Robertson (1968–69) 43 BY 21, 25. But see the clear
view of the HRC in General Comment 31 (2004) HRI/GEN/1/Rev.7, 192,
§5, according to which the obligation to respect and to ensure has
‘immediate effect’.
30
Generally: Tyagi (2011); also Cohn (1991) 13 HRQ 295.
31
The interstate complaint procedure has never been used: Tyagi (2011)
325–85.
32
De Zayas, Möller & Opsahl (1985) 28 GYIL 9; Ghandhi, The Human
Rights Committee and the Right of Individual Communication (1998);
Tyagi (2011) 386–630.
33
See CCPR, General Comment 33 (2008) CCPR/C/GC/33, §§11–15;
cf Tangiora v Wellington District Legal Services Committee (1999) 24 ILR
570, 575.
34
E.g. Lovelace v Canada (1981) 68 ILR 17; Toonen v Australia (1994)
112 ILR 328. Further: Tyagi (2011) 626–9.
35
Information provided by the Petitions and Inquiries Section of the
Office of the High Commissioner for Human Rights, 1 December 2011
(email correspondence on file with the editor).
36
36
CCPR, General Comment 12: Article 1 (1984) HRI/GEN/1/Rev.7, 134.
37
Further: Tyagi (2011) 7.
38
Generally: Shelton (ed), Regional Protection of Human Rights (2008).
39
4 November 1950, ETS 5. All Council of Europe member states are
parties to the ECHR (47 in total), and new members are expected to
ratify the convention as soon as possible: Parliamentary Assembly
Resolution 1031 (1994).
40
22 November 1969, OAS Treaty Series 36 (currently 25 parties).
41
17 June 1981, 1520 UNTS 323 (currently 53 ratifications). There is
also a Commonwealth of Independent States Convention on Human
Rights and Fundamental Freedoms, 26 May 1995 (1996) 3 IHRR 212.
Only Belarus, Kyrgyzstan, Tajikistan, and the Russian Federation have
ratified it. The envisaged Human Rights Commission has not been
created.
42
(2005) 12 IHRR 893.
43
El Din Hassan, in Symonides (2003) 239; Rishmawi (2005)
5 HRLR 661; Rishmawi (2010) 10 HRLR 169.
44
See Smith, Textbook on International Human Rights (4th edn, 2010)
90–2. On the Asian values debate: e.g. Davis(1998) 11 Harv HRJ 111;
Donnelly, in Bauer & Bell (eds), The East Asian Challenge for Human
Rights (1999) 60; Avonius & Kingsbury (eds), Human Rights in
Asia (2008).
45
Genocide Convention, 9 December 1948, 78 UNTS 277; Parlett
(2011) 313.
46
ICERD, GA Res 2106(XX), 21 December 1965, 660 UNTS 195
(currently 175 parties); International Convention on the Suppression and
Punishment of the Crime of Apartheid, GA Res 3068(XXVIII), 1015 UNTS
243 (currently 107 parties); International Convention Against Apartheid in
Sports, GA Res 40/64, 10 December 1985, 1500 UNTS 161 (currently 60
parties). Generally: Lerner, The UN Convention on the Elimination of All
Forms of Racial Discrimination (2nd edn, 1980); McKean (1983);
Banton, International Action against Racial Discrimination (1996);
Moeckli, in Moeckli, Shah & Sivakumaran (2010) 189.
47
47
GA Res 39/46, 10 December 1984, 1465 UNTS 85 (currently 149
parties). An Optional Protocol has also been adopted, establishing a
preventive system of regular visits to places of detention: GA Res 57/199,
18 December 2002 (61 parties). Further: Burgers & Danelius, The UN
Convention against Torture—A Handbook (1988); Nowak &
McArthur, The United Nations Convention Against
Torture (2008); Rodley, The Treatment of Prisoners under International
Law (3rd edn, 2009).
48
GA Res 61/177, 20 December 2006 (currently 30 parties).
See Anderson (2006) 7 Melb JIL 245; Rodley (3rd edn, 2009) 329–78.
49
28 July 1951, 189 UNTS 137 (currently 144 parties).
50
GA Res 2198(XXI), 16 December 1966; 660 UNTS 267 (currently 146
parties).
51
Further: Hathaway, The Rights of Refugees under International
Law (2005); Goodwin-Gill & McAdam, The Refugee in International
Law (3rd edn, 2007).
52
UN Convention on the Rights of the Child, 20 November 1989, 1577
UNTS 3 (currently 193 parties). Further: Detrick, A Commentary on the
United Nations Convention on the Rights of the Child (1999); Fottrell
(ed), Revisiting Children’s Rights (2000); Price Cohen, Jurisprudence on
the Rights of the Child (2005); Invernizzi & Williams (eds), The Human
Rights of Children (2011).
53
Convention on the Elimination of All Forms of Discrimination against
Women, 18 December 1979, 1249 UNTS 13 (currently 187 parties);
Convention on the Political Rights of Women, 31 March 1953, 193 UNTS
135 (currently 122 parties). Generally: Cook (ed), Human Rights of
Women (1994); Chinkin & Charlesworth, Boundaries of International
Law (2000); Brems, in Lyons & Mayall (eds), International Human Rights
in the 21st Century (2003) 100; Knop (ed), Gender and Human
Rights (2004); Lockwood (ed), Women’s Rights (2006).
54
International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families, 18 December 1990, 2220 UNTS
3 (currently 45 parties). Further: Cholewinski, Migrant Workers in
International Human Rights Law (1997); de Guchteneire, Pécoud &
Cholewinski (eds), Migration and Human Rights (2009).
55
Convention on the Rights of Persons with Disabilities, 13 December
2006, 2515 UNTS 3 (currently 106 parties), with Optional Protocol.
Further: Kanter (2007) 34 Syracuse JILC 287; Kayess & French (2008)
8 HRLR 1; Arnardóttir & Quinn (eds), The UN Convention on the Rights
of Persons with Disabilities (2009).
56
Barcelona Traction, Light and Power Company Ltd (Belgium v Spain),
ICJ Reports 1970 p 3, 32.
57
E.g. Helsinki Final Act, Declaration of Principles Guiding Relations
between Participating States, 1 August 1975, 14 ILM 1292.
58
2 Restatement Third §702. Also: Meron, Human Rights and
Humanitarian Norms as Customary International Law (1989).
59
Legal Consequences of the Construction of a Wallin the Occupied
Palestinian Territory, ICJ Reports 2004 p 136, 200.
60
Ibid, 172–7.
61
Ibid, 177–81.
62
There is concern about the rapid proliferation of interests claimed as
human rights, e.g. the assertion of a ‘right’ to tourism, or disarmament.
The international legal system lacks any clear process or criteria for
qualifying claims as deserving of legal recognition, and there is a trend
for new rights to be ‘conjured up’ simply by virtue of their being framed in
the language of rights: Alston (1984) 78 AJIL 607, 607. Further: Kennedy
(2002) 15 Harv HRJ 101; Kennedy, The Dark Side of Virtue (2004) 3–35.
63
See Raz, in Besson & Tasioulas (eds), The Philosophy of International
Law (2010) 321–37; Griffin, ibid, 339–55; Skorupski, ibid, 357–73.
64
South West Africa (Ethiopia v South Africa;Liberia v South Africa),
Second Phase, ICJ Reports 1966 p 6, 300 (Judge Tanaka, diss); Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), ICJ Reports 1971 p 16, 57.
65
65
ICCPR, Art 27. On collective rights generally: Dinstein (1976)
25 ICLQ 102; Crawford (ed), The Rights of Peoples (1988);
Lerner, Group Rights and Discrimination in International
Law (1991); Rodley (1995) 47 HRQ 48; Lyons & Mayall (2003); Weller
(ed), Universal Minority Rights (2007).
66
GA Res 2106(XX), 21 December 1965, 660 UNTS 195 (175 parties to
date). See Lerner (2nd edn, 1980).
67
E.g. South West Africa, Second Phase, ICJ Reports 1966 p 6, 286–
301 (Judge Tanaka, diss); European Roma Rights v Immigration
Officer [2005] 2 AC 1. Further: McKean (1983); Banton (1996);
Moeckli, Human Rights and Non-Discrimination in the ‘War on
Terror’ (2008); Moeckli, in Moeckli, Shah & Sivakumaran (2010) 189.
68
ICJ Reports 1970 p 3, 32.
69
On sexual equality: McDougal, Lasswell & Chen (1975) 69 AJIL 497;
McKean (1983) 166–93; Meron (1986) 53–82; CCPR, General Comment
28: Article 3 (2000) HRI/GEN/1/Rev.7, 178; Landau & Beigbeder, From
ILO Standards to EU Law (2008).
70
GA Res 34/180, 18 December 1979, 1249 UNTS 13 (currently 187
parties).
71
See Minority Schools in Albania (1935) PCIJ Ser A/B No
64; Association Protestante (1966) 47 ILR 198; American European
Beth-El Mission v Minister of Social Welfare (1967) 47 ILR 205; Gerhardy
v Brown [1985] HCA 11, §§25–6 (Brennan J); CCPR, General Comment
18: Non-discrimination (1989) HRI/GEN/1/Rev.7, 146, §§8–10; Maya
Indigenous Communities of the Toledo District v Belize (2004) 135 ILR 1,
67.
72
Belgian Linguistics (1968) 45 ILR 114; National Union of Belgian
Police (1975) 57 ILR 262, 265, 281, 287; Abdulaziz, Cabales and
Balkandali (1985) 81 ILR 139, 171; Juridical Condition and Rights of
Undocumented Migrants, IACtHR OC-18/03, 17 September 2003, §§82–
96; Burden v UK [2008] ECtHR 13378/05, §60; Kiyutin v Russia [2011]
ECtHR 2700/10, §62. Further: CCPR, General Comment 18, §13; CERD,
General Recommendation XIV: Article 1(1) (1993) HRI/GEN/1/Rev.7,
206, §2.
73
73
In some cases, the provision of special measures is obligatory: see
Art 2(2). Cf South West Africa, Second Phase, ICJ Reports 1966 p 6,
306–10 (Judge Tanaka, diss).
74
(2009) CERD/C/GC/32. Further: Brownlie, in Crawford (1988) 1, 6–11;
Alfredsson, in Weller (ed), The Rights of Minorities (2005) 141, 148–50
(in the context of Art 4 of the European Framework Convention for the
Protection of National Minorities, 10 November 1994, CETS 157).
75
GA Res 36/55, 25 November 1981. For comment: Sullivan (1988)
82 AJIL 487.
76
Cyprus v Turkey (2001) 120 ILR 10, 91–3. Also: East African
Asians (1973) 3 EHRR 76.
77
See Cristescu, The Right to Self-Determination (1981);
Higgins, Problems and Process (1994) 111–28; Cassese, SelfDetermination of Peoples (1995); Franck, Fairness in International Law
and Institutions (1995) 140–69; Quane (1998) 47 ICLQ 537;
McCorquodale (ed), Self-Determination in International Law (2000);
Ghanea & Xanthaki (eds), Minorities, Peoples and SelfDetermination (2005); Crawford, Creation of States (2nd edn, 2006) 108–
28.
78
Generally: Alston (ed), Peoples’ Rights (2001). Also: Knop (2002) 29–
49; Xanthaki, Indigenous Rights and United Nations Standards (2007)
143, 155–7.
79
The shift from ‘principle’ to ‘right’ first appeared in the Declaration on
the Granting of Independence to Colonial Countries and Peoples, GA
Res 1514(XV), 14 December 1960: see Higgins (1994) 114.
80
E.g. GA Res 1514(XV), 14 December 1960; GA Res 1541(XV), 15
December 1960; GA Res 2625(XXV), 24 October 1970. Also: Namibia,
ICJ Reports 1971 p 16, 31; Western Sahara, ICJ Reports 1975 p 12,
68; East Timor (Portugal v Australia), ICJ Reports 1995 p 90, 102; Wall,
ICJ Reports 2004 p 136, 171–2.
81
See GA Res 1541(XV), 15 December 1960; GA Res 2625(XXV), 24
October 1970. See further chapter 5.
82
83
E.g. Kirgis (1994) 88 AJIL 304.
83
Brownlie, in Crawford (1988) 1, 5.
84
Western Sahara, ICJ Reports 1975 p 12, 33.
85
Ibid, 31–3.
86
Wall, ICJ Reports 2004 p 136, 171–2. Also: East Timor, ICJ Reports
1995 p 90, 102.
87
Reference re Secession of Quebec (1998) 115 ILR 536, 594–5.
See Crawford (1998) 69 BY 115; Bayefsky (ed), Self-Determination in
International Law: Quebec and Lessons Learned (2000); further
chapter 5.
88
Several governments before the Court in Kosovo invoked remedial
self-determination: the Court did not reach the issue. See Accordance
with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, Opinion of 22 July 2010, §82; further chapter 5.
89
Generally: Capotorti, Study of the Rights of Persons Belonging to
Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/384/Rev.1;
Thornberry (1991); Skurbaty, As If Peoples Mattered: Critical Appraisal of
‘Peoples’ and ‘Minorities’ from the International Human Rights
Perspective and Beyond (2000); Weller (2005); Weller (2007).
90
Parlett (2011) 282–7; Eide, in Weller (2005) 25, 33–6.
91
Packer, in Packer & Myntti (eds), The Protection of Ethnic and
Linguistic Minorities in Europe (1993) 23; Hannum, in Weller (2007) 49.
92
Meijknecht, Towards International Personality (2001).
93
CCPR, General Comment 23: Article 27 (1994) HRI/GEN/1/Rev.7,
158. The distinction between minority rights and self-determination is also
clear in the European Framework Convention, 10 November 1994, CETS
157, Art 21: see Hofmann, in Weller (2005) 1, 4.
94
10 November 1994, CETS 157 (currently 39 parties). There are also
bilateral treaties addressing minority rights: see Bloed & van Dijk
(eds), Protection of Minority Rights Through Bilateral Treaties (1999); and
other relevant Council of Europe instruments, including the European
Charter for Regional or Minority Languages, 5 November 1992, CETS
148 (currently 25 parties).
95
95
E.g. certain linguistic rights (Arts 9–11), state obligations in respect of
education (Arts 12–14), the prohibition of forced assimilation (Arts 5(2)
and 16), and rights to cross-border contacts and co-operation (Art 17).
96
See Res 1201 (1993) of the Parliamentary Assembly of the Council of
Europe.
97
Weller, in Weller (2005) 609.
98
See Nowak (2nd edn, 2005) 635–67; CCPR, General Comment 23.
99
E.g. Lovelace v Canada (1981) 68 ILR 17; Kitok v Sweden (1988) 96
ILR 637; Ominayak and the Lubicon Lake Band v Canada (1990) 96 ILR
667; Länsman v Finland (1996) 115 ILR 300.
100
GA Res 47/135, 8 December 1992. See Phillips & Rosas (eds), The
UN Minority Rights Declaration (1993); Eide, Commentary to the
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious or Linguistic Minorities (1998) E/CN.4/Sub.2/AC.5/1998/WP.1.
101
Generally: Tennant (1994) 16 HRQ 1; Wiessner (1999) 12 Harv
HRJ 57; Aikio & Scheinin (eds), Operationalizing the Right of Indigenous
Peoples to Self-Determination (2000); Thornberry, Indigenous Peoples
and Human Rights (2002); Anaya, Indigenous Peoples in International
Law (2nd edn, 2004); Eide (2006) 37 NYIL 155; Xanthaki (2007); Daes
(2008) 21 Cam RIA 7; Allen & Xanthaki (eds), Reflections on the UN
Declaration on the Rights of Indigenous Peoples (2011).
102
GA Res 6/1295, 13 September 2007 (143–4 (Australia, Canada, New
Zealand, US): 11 (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia,
Georgia, Kenya, Nigeria, Russian Federation, Samoa, Ukraine)). A
number of these states have since endorsed the Declaration.
103
Barsh (1996) 18 HRQ 782, 783–6; Eide (2006) 161–2.
104
Economic and Social Council Res 2000/22, 28 July 2000. See
Lindroth (2006) 42(222) Polar Record 239.
105
Human Rights Council Res 6/12, 28 September 2007.
106
Human Rights Council Res 6/36, 14 December 2007.
107
Although in many cases indigenous groups constitute minorities
within states, indigenous people have consistently differentiated
themselves as ‘peoples’ rather than minorities. See AD v Canada (1984)
76 ILR 261, 264–5; see also Falk, in Crawford (1988) 17, 32; Thornberry
(1989) 38 ICLQ 867, 868–9; Cassidy (2003) 51 AJCL 409. Analytically,
however, one could be both.
108
ILO Convention 107 Concerning the Protection and Integration of
Indigenous and other Tribal and Semi-Tribal Populations in Independent
Countries, 26 June 1957, 328 UNTS 247 is no longer open for
ratification, and has effectively been replaced by ILO Convention 169
Concerning Indigenous and Tribal Peoples in Independent Countries, 27
June 1989, 28 ILM 1382. See Xanthaki (2007) 49–101; Erueti, in Allen &
Xanthaki (2011) 93–120.
109
E.g. Barsh (1996) 796–800.
110
E.g. Ominayak and the Lubicon Lake Band v Canada (1990) 96 ILR
667; Marshallv Canada (1991) 96 ILR 707. For criticism: Tyagi (2011)
598–9.
111
Eide (2006) 196–9, 211–12; Daes (2008) 15–18, 23–4; Quane, in
Allen & Xanthaki (2011) 259, 264–9; cf ILA, Report of the 74th
Conference (2010) 846–8.
112
E.g. Arts 1–2. Also: CERD, General Recommendation XXIII:
Indigenous Peoples (1997) A/52/18, Annex V (confirming that racial
discrimination against indigenous peoples falls within the scope of
ICERD).
113
E.g. Arts 11–16, 24–5, 31. See ILA, Report of the 74th Conference
(2010) 857–60; Stamatopoulou, in Allen & Xanthaki (2011) 387. On
recognition of traditional laws: ALRC, Report 31, Recognition of
Aboriginal Customary Laws (1986).
114
Over 20 provisions in the Declaration articulate different facets of the
right to participate in deci-sion-making, setting a high standard beyond
mere consultation: see UN Expert Mechanism on the Rights of
Indigenous Peoples, Progress Report on the Study on Indigenous
Peoples and the Right to Participate in Decision-Making (2010)
A/HRC/EMRIP/2010/2. It is notable that the right of political participation
is expressed as a collective right, cf the views of the HRC in respect of
ICCPR, Art 25: Marshallv Canada (1991) 96 ILR 707; Diergaardt v
Namibia (2000) CCPR/C/69/D/760/1997, §10.8 (but see sep op
Scheinin).
115
Art 4. See ILA, Report of the 74th Conference (2010) 850–7.
116
E.g. Arts 26–30, 32. Rights over land and natural resources are
fundamental to indigenous claims to self-determination: e.g. ILA, Report
of the 74th Conference (2010) 863–70; Gilbert & Doyle, in Allen &
Xanthaki (2011) 289; Errico, in Allen & Xanthaki (2011), 329.
117
On the definitional problem and its evasion: e.g. Thornberry (2002)
33–60; Special Rapporteur of the Sub-Commission on the Prevention of
Discrimination and Protection of Minorities, José Martínez-Cobo, Study
on the Problem of Discrimination Against Indigenous Populations (1987);
Daes (2008) 8–10.
118
Barelli (2009) 58 ICLQ 957; Coulter (2008) 45 Idaho LR 539. Note
also Art 46, requiring indigenous rights to be interpreted consistently with
respect for the rights of others.
119
Declaration on the Right to Development, GA Res 41/128, 4
December 1986; further: Rosas, in Eide, Krause & Rosas (2nd edn,
2001) 119–30; Andreassen & Marks (eds), Development as a Human
Right (2nd edn, 2010).
120
Art 15 ICESCR; see O’Keefe (1998) 47 ICLQ 904, esp 917–18;
Stavenhagen, in Eide, Krause & Rosas (2nd edn, 2001) 86; cf Eide, in
Eide, Krause & Rosas (2nd edn, 2001) 289.
121
Generally: Coomans & Kamminga (eds), Extraterritorial Application
of Human Rights Treaties (2004); Dennis (2005) 99 AJIL 119; Wilde
(2007) 40 Is LR 503; Milanović (2008) 8 HRLR 411; Gondek, The Reach
of Human Rights in a Globalising World (2009); Milanović, Extraterritorial
Application of Human Rights Treaties (2011).
122
Soering v UK (1989) 98 ILR 270, 300.
123
See the review of the case-law in Al-Skeini v UK [2011] ECtHR
55721/07, §§130–42.
124
See Loizidou v Turkey (1995) 103 ILR 622 (preliminary
objections); Loizidou v Turkey (1996) 108 ILR 443; Cyprus v
Turkey (2001) 120 ILR 10.
125
125
On the different models of extraterritorial jurisdiction generally:
Milanović (2011) 118–228.
126
(2001) 123 ILR 94.
127
Ibid, 109–10.
128
Ibid, 113–14.
129
Ibid, 115–16. On the concept of espace juridique: Wilde
[2005] EHRLR 115; Wilde (2007) 40 Is LR 503; Thienel (2008)
6 JICJ 115.
130
For analysis: e.g. Roxstrom, Gibney & Einarsen (2005) 23 Boston
UILJ 55; Milanović (2008) 8 HRLR 411; Altiparmak (2004) 9 JCSL 213.
For criticism of the UK courts’ interpretation of Banković: e.g. Williams
(2005) 23 Wisconsin ILJ 687; Thienel (2008).
131
Al-Skeini v UK [2011] ECtHR 55721/07.
132
See Al-Skeini v Secretary of State for Defence [2007] 3 WLR 33.
133
Al-Skeini v UK [2011] ECtHR 55721/07, §§149–50.
134
Ibid, §§168–77.
135
E.g. ibid, concurring opinion of Judge Bonello (advocating a
functional test of jurisdiction under Art 1, rather than territorial); Al-Skeini
v Secretary of State for Defence [2007] 3 WLR 33, §§67–84 (Lord
Rodger, on the difficulty in reconciling Banković with Issa v Turkey (2005)
41 EHRR 567, 588, where the Court held that ‘the Convention cannot be
interpreted so as to allow a State party to perpetrate violations of the
Convention on the territory of another State, which it could not perpetrate
on its own territory’).
136
Al-Skeini v UK [2011] ECtHR 55721/07, §§133–7, 149.
137
Ibid, §§143–9.
138
Ibid, §142; cf Banković v Belgium (2001) 123 ILR 94, 115–16.
139
Al-Skeini v UK [2011] ECtHR 55721/07, §137; cf Banković v
Belgium (2001) 123 ILR 94, 114. Also: Al-Jedda v UK [2011] ECtHR
27021/08; Al-Saadoon & Mufdhi v UK [2009] ECtHR 61498/08.
140
140
CCPR, General Comment 31 (2004) HRI/GEN/1/Rev.7, 192, §§10–
11. Also: López Burgos v Uruguay (1981) 68 ILR 29; Celiberti de
Casariego v Uruguay (1981) 68 ILR 41; and compare Dennis & Surena
[2008] EHRLR 714 with Rodley [2009] EHRLR 628.
141
Wall, ICJ Reports 2004 p 136, 177–81.
142
Armed Activities on the Territory of the Congo (DRC v Uganda), ICJ
Reports 2005 p 168, 242–3.
143
Generally: Provost, International Human Rights and Humanitarian
Law (2002); Arnold & Quénivet (eds), International Humanitarian Law
and Human Rights Law (2008); Ben-Naft ali (ed), International
Humanitarian Law and International Human Rights
Law (2011); Escorihuela (2011) 19 MSU JIL 299.
144
Ben-Naftali, in Ben-Naftali (2011) 3, 4–5.
145
See Parlett (2011) 193–6. International human rights law and the law
of armed conflict have been described as ‘inextricably entangled’: Stigall,
Blakesley & Jenks (2009) 30 U Penn JIL 1367, 1369.
146
Corfu Channel, ICJ Reports 1949 p 4, 22.
147
Nicaragua, ICJ Reports 1986 p 14, 114.
148
Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996
p 226, 239–40; reiterated in Wall, ICJ Reports 2004 p 136, 178; DRC v
Uganda, ICJ Reports 2005 p 168, 242–5. For a critical view on the use of
the lex specialis principle to define the relationship between human rights
and humanitarian law: Milanović, in Ben-Naftali (2011) 95; Prud’homme
(2007) 40 Is LR 356.
149
Parlett (2011) 195.
150
E.g. ibid, 195–6; Milanović, in Ben-Naftali (2011) 95.
151
ILC Study Group, Fragmentation of International Law: Difficulties
Arising From the Diversification and Expansion of International Law,
ILC Ybk 2006/II(2); Escorihuela (2011) 19 MSU JIL 299.
152
153
Orakhelashvili (2008) 19 EJIL 168.
Initially, the Bush administration took the position that its campaign
against terrorism was beyond the reach of the Geneva Conventions, as it
was not an armed conflict with another state, but that it was international
in scope and therefore escaped domestic disciplines. Since Hamdan v
Rumsfeld, 548 US 557 (2006), the official position has been that it is an
armed conflict not of an international character, to which the minimum
requirements of Common Art 3 of the Geneva Conventions apply.
154
E.g. targeted killings of suspected terrorists. See Alston, Report of
the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions: Study on Targeted Killings (2010) A/HRC/13/24/Add.6;
Melzer, Targeted Killing in International Law (2008) 37–43, 262–8, 394–
419; Duffy, The War on Terror and the Framework of International
Law (2005) 339–44; O’Connell (2008) 13 JCSL 393; Shany, in Ben-Naft
ali (2011) 13; Sassòli, in Ben-Naftali (2011) 34. Similar problems have
arisen in the Occupied Palestinian Territory, where tensions arising from
the continued Israeli occupation are treated by the Israeli government
and Supreme Court as an international armed conflict: Public Committee
Against Torture in Israel v State of Israel (1999) 133 ILR 283; Ben-Naftali
& Michaeli (2003) 36 Cornell ILJ 233; Kretzmer (2005)
16 EJIL 171; Milanović (2007) 89 IRRC 373; Melzer (2008) 27–36.
155
Generally: Charney [1983] Duke LJ 748; Ratner (2001) 111 Yale
LJ 443; Alston (ed), Non-State Actors and Human Rights (2005);
Clapham, Human Rights Obligations of Non-State Actors (2006);
Zerk, Multinationals and Corporate Social Responsibility (2006); Knox
(2008) 102 AJIL 1.
156
E.g. CESCR, General Comments 15 (2002) E/C.12/2002/11, §§23–4
and 18 (2005) E/C.12/GC/18, §35.
157
E.g. Charney [1983] Duke LJ 748; Watts (2005) 30 Ann Rev Env
Res 9.1.
158
Report of the Special Rapporteur, UN Commission on Human Rights,
Promotion and Protection of Human Rights: Human Rights and Human
Responsibilities, Annex I (2003) E/CN.4/2003/105.
159
(2003) E/CN.4/Sub.2/2003/12/Rev.2. See Weissbrodt & Kruger
(2003) 97 AJIL 901; Kinley, Nolan & Zerial (2007) 25 C&SLJ 30; Knox
(2008) 102 AJIL 1.
160
160
See Protect, Respect and Remedy: A Framework for Business and
Human Rights (2008) A/HRC/8/5 (including Add.1 and Add.2) and
A/HRC/8/16.
161
E.g. Weissbrodt & Kruger (2003) 97 AJIL 901.
162
Knox (2008) 102 AJIL 1.
163
Charney [1983] Duke LJ 748.
164
See Report of the Special Representative of the Secretary-General
on the Issues of Human Rights and Transnational Corporations and
Other Business Enterprises (2007) A/HRC/4/035, §44.
165
E.g. X and Y v Netherlands [1985] ECtHR 8978/80; Velásquez
Rodríguez v Honduras (1989) 95 ILR 232; Hopu and Bessert v
France (1997) 118 ILR 262; Social and Economic Rights Action Centre
and Anor v Nigeria (2001) AHRLR 60; Mayagna (Sumo) Awas Tingni
Community v Nicaragua (2008) 136 ILR 73.
166
See the disagreement over expert opinions of Crawford and
Greenwood (given in Presbyterian Church of Sudan v Talisman Energy,
Inc, 582 F.3d 244 (2nd Cir, 2009)) in Kiobel v Royal Dutch Petroleum
Co, 621 F.3d 111 (2nd Cir, 2010), not followed in Flomo v Firestone
Natural Rubber Co, 643 F.3d 1013 (7th Cir, 2011). The Supreme Court
has granted certiorari in Kiobel. For the Alien Tort Claims Act see
chapter 21.
167
See Alston, in Alston (1992) 126 (an excellent account).
168
GA Res 60/251, 15 March 2006; UKMIL (2006) 77 BY 726; Ghanea
(2006) 55 ICLQ 695; Crook (2006) 100 AJIL 697.
169
See Sarooshi, The United Nations and the Development of Collective
Security (1999) 210–29; Chesterman, Just War or Just Peace? (2001)
127–218; Ramcharan, The Security Council and the Protection of Human
Rights (2002); Gray, International Law and the Use of Force (3rd edn,
2008) 264–306.
170
See Report of the Independent Inquiry into the Actions of the United
Nations during the 1994 Genocide in Rwanda (1999) S/1999/1257; Gray
(3rd edn, 2008) 292–4.
171
171
Ibid, 272–326.
172
SC Res 1973 (2011). See Hansard, HC Deb, 21 March 2011, cols
700–801 (esp 716–22); Bellamy & Williams, (2011) 87 International
Affairs 825.
173
World Summit Outcome Document (2005) A/60/L.70, §139; Gray (3rd
edn, 2008) 53–5. On the ‘responsibility to protect’: Report of the
International Commission on Intervention and State Sovereignty, The
Responsibility to Protect (2001); Pattison, Humanitarian Intervention and
the Responsibility to Protect (2010); Badescu, Humanitarian Intervention
and the Responsibility to Protect (2011).
174
ICC Statute, 17 July 1998, 2187 UNTS 3, Art 13(b) (currently 117
parties).
175
SC Res 1593 (2005).
176
SC Res 1970 (2011).
177
Further: Alston & Crawford (eds), The Future of UN Human Rights
Treaty Monitoring(2000); Bayefsky (ed), The UN Human Rights Treaty
System in the 21st Century (2000); Bayefsky, How to Complain to the UN
Human Rights Treaty System (2003).
178
GA Res 2106(XX), 21 December 1965, 660 UNTS 195. Further:
Partsch, in Alston (1992) 339; Banton, in Alston & Crawford (2000) 55;
Vandenhole, Non-Discrimination and Equality in the View of the UN
Human Rights Treaty Bodies (2005).
179
Generally: Tyagi (2011); further: de Zayas, Möller & Opsahl (1985)
28 GYIL 9; Cohn (1991) 13 HRQ 295; Ghandhi (1998).
180
GA Res 34/180, 18 December 1979, 1249 UNTS 13. Further:
Jacobson, in Alston (1992) 444; Bustelo, in Alston & Crawford (2000) 79;
Schöpp-Schilling & Flinterman (eds), The Circle of Empowerment:
Twenty-Five Years of the UN Committee on the Elimination of
Discrimination against Women (2007).
181
GA Res 39/46, 10 December 1984, 1465 UNTS 85. Further: Byrnes,
in Alston (1992) 509; Bank, in Alston & Crawford (2000) 145;
Ingelse, The UN Committee Against Torture (2001); Nowak &
McArthur, The United Nations Convention Against Torture (2008) 579–
813.
182
GA Res 57/199, 18 December 2002 (currently 61 parties). See
Nowak & McArthur (2008) 937–1192.
183
See Alston, in Alston (1992) 473; Craven (1995) 30–105; Craven, in
Eide, Krause & Rosas (2nd edn, 2001) 455.
184
GA Res 44/25, 20 November 1989, 1577 UNTS 3. Further:
Lansdown, in Alston & Crawford (2000) 113–28; Doek, in Invernizzi &
Williams (2011) 90.
185
GA Res 45/158, 18 December 1990, 2220 UNTS 3 (currently 45
parties). Further: Cholewinski (1997); Edelenbos, in de Guchteneire,
Pécoud & Cholewinski (2009) 100.
186
GA Res 61/106, 13 December 2006. Further: Kanter (2007)
34 Syracuse JILC 287; Kayess & French (2008) 8 HRLR 1.
187
GA Res 61/177, 20 December 2006. On enforced
disappearance: Anderson (2006) 7 Melb JIL 245; Rodley (3rd edn, 2009)
329–78.
189
See O’Flaherty (2010) 10 HRLR 319.
190
GA Res 48/141, 20 December 1993. Further: Clapham (1994)
5 EJIL 556; Ramcharan, The United Nations High Commissioner for
Human Rights (2002); Steiner, Alston & Goodman (3rd edn, 2008) 824–
35.
191
Robertson & Merrills, Human Rights in the World (4th edn, 1996)
112–14.
192
Generally: Shelton (ed), Regional Protection of Human
Rights (2008).
193
4 November 1950, ETS 5. Further: European Social Charter, 18
October 1961, ETS 35. Generally: Higgins, in 2 Meron (1984) 495; Harris
& Darcy, The European Social Charter (2nd edn, 2001); van Dijk, van
Hoof, van Rijn & Zwaak (eds), Theory and Practice of the European
Convention on Human Rights (4th edn, 2006); Pettiti, Decaux &
Imbert, La Convention Européenne des Droits de l’Homme (2nd edn,
1999); Harris, O’Boyle & Warbrick, Law of the European Convention on
Human Rights (2nd edn, 2009); Jacobs, White & Ovey, The European
Convention on Human Rights (5th edn, 2010).
194
See Protocol 11, 11 May 1994, CETS 155.
195
See Drzemczewski, European Human Rights Convention in
Domestic Law (1997); Keller & Stone Sweet (eds), A Europe of
Rights (2008).
196
Protocol 14, 13 May 2004, CETS 194 (in force from 1 June 2010)
aims to improve the Court’s efficiency.
197
E.g. Helfer (2008) 19 EJIL 125; Keller, Fischer & Kühne (2010)
21 EJIL 1025.
198
Gros Espiell (1975) 145 Hague Recueil 1; Buergenthal, in 2 Meron
(1984) 439; Medina Quiroga, The Battle of Human Rights (1988);
Davidson, The Inter-American Court of Human Rights (1992);
Pasqualucci, The Practice and Procedure of the Inter-American Court of
Human Rights (2003).
199
Protocol of Amendment to the Charter of the Organization of
American States, 27 February 1967, 721 UNTS 324.
200
22 November 1969, 1144 UNTS 123. Also: Additional Protocol to the
American Convention on Human Rights in the Area of Economic, Social
and Cult
Qaisar Awan