Chapter Resources

Chapter 1. Introduction


Materials

Lotus, PCIJ, series A, no. 10 (1927)
Wimbledon, The (1923), PCIJ series A, no. 1
These two cases illustrate the dynamics of interaction between State sovereignty and international legal obligations discussed in Chapter 1.

Brierly, The Basis of Obligation in International Law, Chapter 1
Brierly, So-Called Political Disputes in Basis of Obligation
Bederman, The Spirit of International Law, Chapter 1

H. Lauterpacht, The Grotian Tradition of International Law, BYIL (1945)
SG Neff, Justice Among Nations – A History of International Law (Harvard 2014), Chapters 4 and 5
A. Orakhelashvili, The Relevance of Theory and History: The Essence and Origins of International Law, Chapter 1 in A. Orakhelashvili (ed.), Research Handbook on Theory and History of International Law (2020) (open access)

M. McDougal and H. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 AJIL (1959), 1
P. Allott, The Concept of International Law, 10 EJIL 1999, 31
B.S. Chimni, International Law and World Order (CUP), Chapter 7

A. Orakhelashvili, International Law, Politics and Ideology, Chapter 9 in A. Orakhelashvili (ed.), Research Handbook on Theory and History of International Law (2020)
A. Orakhelashvili, Hegemony, Multipolarity and the System of International Law, in M. Happold (ed.), International Law in a Multipolar World (Routledge 2011)

Discussion Questions

  1. How has the doctrinal understanding of international law evolved to get to its present stage? What contributions have classical writers made to understanding the nature of international law? Which theories reflect the actual nature of the international legal system more accurately?
  2. What are principal theses of the natural law theory? How does natural law reasoning differ from positivist reasoning? What does it take to be a natural lawyer?
  3. In which ways could one deny that international law is law? Could such denial be subconscious or otherwise unarticulated?
  4. What was the original agenda of the New Haven policy-oriented theory? What is its current utility for understanding international law? In which version has the New Haven policy-oriented theory been resurrected after the end of the Cold War?

Quiz question

What is the relationship between State sovereignty and international law? How does the international legal system handle that relationship?

Guide to answer

See what theories are discussed in Chapter 1 regarding the relationship between sovereignty and international law. Familiarise yourself with the Lotus and Wimbledon cases. How did State sovereignty relate to legal obligation in each of those cases? How did the Permanent Court handle underlying controversies?

Quiz question

What is the relevance and utility of critical or non-positivist theories in understanding the essence and workings of international law?

Guide to answer:

  • What are theories that could be described as critical or non-positivist? What does each of those theories focus upon?
  • What are features common to critical theories?
  • What is the net relevance of ethical or normative criteria formulated by non-positivist theories of international law? Why do those theories advance those criteria? What do they want to prove or demonstrate? How do those criteria relate to positive international law?

Chapter 2. History


Materials

Short timeline of international legal history:
25th–24th centuries BC – first international agreements in Middle East
1280 BC – peace treaty between Egypt and Hittite Kingdom
1648 – Peace of Westphalia
1713 – Peace of Utrecht
1823 – Monroe doctrine
1841 – “Opium War” between UK and China
1856 – Peace of Paris and end of Crimean War
1878 – Congress of Berlin and settlement on the Balkans
1907 – First treaty outlawing use of force, with regard to contract debts
1919 – Versailles Peace Treaty and creation of the League of Nations
1932 – Stimson Doctrine of non-recognition of forcible territorial changes
1936 – League of Nations imposes sanctions on Italy for its invasion of Ethiopia
1945 – adoption of the UN Charter and Statute of the International Court of Justice
1950 – adoption of the European Convention on Human Rights
1960 – UN General Assembly declaration on independence of colonial territories
1962 – UN General Assembly resolution on permanent sovereignty over natural resources
1966 – adoption of UN human rights covenants on civil and political rights and economic and social rights
1990–1992 – end of Cold War and dissolution of the Socialist bloc
1998 – adoption of the International Criminal Court’s Statute
2001 – 9/11 attacks on US; beginning of the War in Afghanistan and proclamation of “war on terror” by US government
2015 – adoption of Paris Agreement on Climate Change

D. Bederman, International Law in Antiquity (2001), Chapter 5
L. Gross, Peace of Westphalia 1648–1948, 42 AJIL (1948), 20
D. Vagts, Balance of Power: History of an Idea, 73 AJIL (1979), 555
C.H. Alexandrowicz, Doctrinal Aspects of the Universality of the Law of Nations, 37 BYIL (1961), 506
A. Orakhelashvili, The Idea of European International Law, 17 EJIL (2006), 315
A. Orakhelashvili, Hegemony, Multipolarity and the System of International Law, in M. Happold (ed.), International Law in a Multipolar World (Routledge 2011)
A. Orakhelashvili, Unlocking the Unreal: An Inter-disciplinary Take on Hedley Bull’s Notions of “International Society” and “International Order”, 14 Chinese JIL (2015), 15
A. Orakhelashvili, Chapter 11: Origins, Record and Narratives: Uses and Abuses of International Legal History, Chapter 11 in A. Orakhelashvili (ed.), Research Handbook on Theory and History of International Law (2nd ed., 2020)

1648 Treaty of Westphalia

1815 Final Act of the Vienna Congress

1856 Treaty of Paris

1878 Berlin Conference

The Covenant of the League of Nations

Charter of the United Nations

Panch Shila Principles, UNTS No. 4307, p.70

1955 Bandung Conference Final Communique

1970 Declaration on Principles of International Law

1997 Russia–China declaration on multipolar world

US National Security Strategy 2006

2016 Russia–China Joint Declaration on Promotion and Principles of International Law

Discussion Questions

  1. What is the difference between history of international law and history of international legal thought?
  2. Where do the roots of international law lie?
  3. What were the lessons from the failure of the League of Nations and how were they reflected in the constitution of the UN?
  4. What is the influence of the Third World on the formation of basic principles of international law?
  5. What challenges do unilateralism and unipolar hegemony aspirations pose to the international legal system?

Quiz question

What concerns does Eurocentrism raise in international legal discourse?

Guide to answer

Read the material included in this section and discuss:

  • At what time did Eurocentrism become dominant in Western international law tradition?
  • What were the reasons for which the proponents of European international law developed their Eurocentrist theory?
  • How accurately have nineteenth-century Eurocentrist authors at the time of colonial expansion (second half of the nineteenth century) actual workings of international law by that time?
  • How accurately have Eurocentrist authors addressed international legal history from the periods of antiquity, middle ages, and colonial expansion?
  • Which authors purport to re-invigorate Eurocentrism in the twentieth century and for which purpose?

Chapter 3. Sources of International Law


Materials

Anglo-Norwegian Fisheries case, ICJ judgment 1951
This case demonstrates the dynamics of custom formation on bilateral or multilateral planes, especially considering the degree to which the relevant States are involved in State practice or are affected by the relevant rule.

North Sea Continental Shelf, ICJ judgment 1969
Nicaragua, ICJ judgment on merits 1986
Chagos Archipelago, ICJ Advisory Opinion, 2019
The ICTY Trial Chamber decisions on:
Kunarac, IT-96-23-T, 22 February 2001, paras 465–514
Furundzija, Case IT-95-17/1-T, judgment of 10 December 1998, paras 134–164
Delalic, Music & Delic, case no. IT-96-2-T, judgment of 16 November 1998, paras 402–417; 420–497
Kuprsekic, IT-95-16-T, judgment of 14 January 2000, paras 511–536; 537–542
These cases demonstrate the relationship between treaty and custom, as well as the dynamics of multilateral contexts of custom formation discussed in Chapter 3.

Eastern Greenland¸ PCIJ Series A/B 53, judgment of 5 April 1933
Nuclear Tests, ICJ judgment 1974
These two cases demonstrate the relevance of good faith and agreement between States in creating the binding force of unilateral declarations made by States.

M. Akehurst, Custom as a Source of International Law, BYIL (1975–1976), 1
K. Heller, Specially Affected States and the Formation of Custom, 112 AJIL (2018), 192
R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BYIL (1965–1966), 271

W. Friedmann, The Uses of “General Principles” in the Development of International Law, 57 AJIL (1963), 279
O. Schachter, Chapter 4 in International Law: Theory and Practice, General Course of Public International Law, Hague Academy Lectures
M. Akehurst, Equity and General Principles of Law, 25 ICLQ (1976), 801

A. Orakhelashvili, Changing Jus Cogens Through State Practice? Chapter 7 in M. Weller (ed.), OUP Handbook on the Use of Force in International Law (OUP 2015), pp.159–166
A. Orakhelashvili, Audience and Authority: The Merit of the Doctrine of Jus Cogens, Netherlands YIL (2015), 115

Discussion Questions

  1. What forms does State practice take in the process of custom formation? What are the conditions for State practice to be a relevant or sufficient element of custom generation?
  2. What is the relevance of multilateral fora and contexts in formation of customary international law?
  3. Is the process of custom formation in the area of human rights and humanitarian law different from custom formation in other areas of international law?
  4. Does the Court of Appeal judgment in Freedom and Justice Party (2018) correctly apply the requirements of custom formation?
  5. What is the rationale of the hierarchy of norms in international law?
  6. What is the relationship between jus cogens and State practice?
  7. What is the range of effects that jus cogens produces across various areas of international law?

Reflective Quiz

State practice as an element of customary international law:

Against the background of cases discussed in Chapter 3, assess:

  1. What is to be given greater importance:
  • Practice of the State which asserts that a customary rule exists
  • Practice of the State whose conduct is assessed in the case
  • Individual third States’ practice
  • Third States’ practice collectively
  1. What happens if:
  • Practice of the State whose conduct is assessed in the case differs from the position of other States involved in the same situation?
  • Practice of States who are involved in or related to the situation discussed in the case, differs from practice of States which are not involved in it?
  1. In which ways is the number of States involved in the relevant State practice relevant? In which contexts do we see greater number of States engaging in State practice more transparently and obviously than in other contexts?

Quiz question

Does the thesis of “specially affected” States have added value in the process of custom generation?

Guide to answer

Consult cases and materials in this chapter and discuss:

  • Can the “specially affected” status be relevant with regard to all customary norms?
  • Who are “specially affected” States? What does it mean to be “specially affected” by a putative or actual rule of customary international law?
  • What makes a State “specially affected” in the process of custom formation: substance of the putative norm, or involvement in the practice that potentially leads to the crystallisation of that norm?
  • Who are States not “specially affected”?
  • Does a State bear a burden to prove that it is “specially affected”?
  • On the whole, what is the net value of the “specially affected” thesis?

Quiz question

What is the relationship between multilateral treaties and customary law:

  • With treaties to which one of litigant States is not a party?
  • With treaty which is not in force (yet)?

Guide to answer

Read cases referred to in this section and discuss:
What factors will lead international courts and tribunals to endorse the outcome that a multilateral treaty in question also reflects customary international law? In which areas of international law is this more likely to happen?

Quiz question

Do the ILC’s draft conclusions on the identification of customary law accurately reflect the requirements of custom formation in international law?

Guide to answer

Reflect on whether the ILC’s formulations accurately reflect positions taken by international courts and tribunals by the time the draft articles were adopted. Does the ILC accurately account for all headings of State practice? Have the ILC’s draft conclusions been acted upon in the practice of international courts?

Quiz question

What is the difference between general principles of law, equity, and customary international law?

Guide to answer

Read the North Sea case and contributions by Akehurst and Schachter, and discuss:

  • What is the statutory or normative basis of each of these legal categories?
  • In what place do courts start identifying each of them?
  • What tasks does each of these elements fulfil in difference from other elements?

Comments & Updates

Peremptory Norms (jus cogens)

ILC’s work on jus cogens: a comment is available here.

Customary law

In the Continental Shelf case (Nicaragua v Colombia), the International Court has dealt with the issue of extending a State’s continental shelf into closer than 200 nautical miles from another State’s coast. The Court observed that “the vast majority of States parties to the Convention that have made submissions to the CLCS have chosen not to assert, therein, outer limits of their extended continental shelf within 200 nautical miles of the baselines of another State. The Court considers that the practice of States before the CLCS is indicative of opinio juris, even if such practice may have been motivated in part by considerations other than a sense of legal obligation. … Among the small number of coastal States that are not States parties to the Convention, the Court is not aware of any that has claimed an extended continental shelf that extends within 200 nautical miles from the baselines of another State.” (para.77)

This means that the scale of State practice could be a strong indicator of whether opinio juris is available on the relevant matter. On the Court’s account in this case, it was widespread practice not witnessing significant deviations or opposition.

Chapter 4. International Law and Municipal Law


Materials

UK Constitutional Governance and Reform Act 2010

F.A. Mann, The Consequences of an International Wrong in National and International Law, BYIL (1976–1977), 1

Trendtex Trading Corporation v Central Bank of Nigeria, Court of Appeal, [1977] 1 QB 529
R v Jones et al., [2006] UKHL 16
Regina (on the application of General Abdul Waheed Shannan Al Rabbat) v Westminster Magistrates Court, High Court, 31 July 2017
A. Orakhelashvili, High Court and Crime of Aggression, 5 JUFIL (2018), 2
The Freedom and Justice Party & Ors R (On the Application Of) v The Secretary of State for Foreign and Commonwealth Affairs & Anor [2018] EWCA Civ 1719 (19 July 2018)
These materials illustrate the scope of the incorporation doctrine in the UK, especially the limited importance of the House of Lords’ 2006 decision in Jones, as discussed in Chapter 4.

A v Secretary of State, UK House of Lords 2005
Al-Skeini and Others v Secretary of State for Defence,[2007] UKHL 26, judgment of 13 June 2007
ZH (Tanzania), UK Supreme Court judgment 2011
Hilal Al-Jedda v Secretary of State for the Home Department, Court of Appeal (Civil Division), [2012] EWCA Civ 358
These cases demonstrate the scope to which unincorporated treaty provisions can be applied in English law.

Oppenheimer v Cattermole, House of Lords 1975
Kuwait Air Co., House of Lords, [2002] UKHL 19, [2002] 2 AC 883
Rahmatullah v MOD, UK Supreme Court judgment 2017
Belhaj v Straw, UK Supreme Court judgment 2017
These cases demonstrate the pattern of evolution of the act of State doctrine and non-justiciability in English law.

British Arab Commercial Bank Plc v The NTC of the State of Libya, 2011 EWHC 2274

Discussion Questions

  1. What is the status of national law on the international plane?
  2. What is the discrete relevance of dualist and monist theories? How far do they rationalise the actual status of international law in domestic law?
  3. Across various national legal systems, how is the effect of international law regulated on the national plane?
  4. What judicial obstacles have been put up to the direct effect of international law in English law? Is the approach taken by English courts in Jones and Al-Rabbat consistent with the doctrine of criminalisation under English law?
  5. To what extent do treaties apply directly in English law?
  6. What is the current validity and relevance of the doctrine of self-executing treaties (a) in US law; (b) in English law?
  7. What relevance ought to be accorded to the Executive Certificate in English courts?
  8. To what extent are English courts justified in following the Executive’s position in litigation involving the matters of international law?
  9. What does the “one voice” doctrine suggest and whose voice is given priority in the practice where that doctrine is applied?

Quiz question

On what conditions does international law apply in the UK’s legal system?

Guide to answer

Read relevant materials cited in this section, especially cases of Trendtex, Gul, and Keyu, and discuss:

  • When do courts in the UK have to ask whether a rule of international law applicable to the case exists?
  • Which sources of English law can displace domestic effect of international law? On what conditions? What legislative techniques have to be used?
  • What are presumptions to ascertain if international law has been displaced by a rule of domestic law?
  • What are consequences when international law is displaced (1) domestically; (2) internationally?

Quiz question

How do foreign act of State and British (Crown) act of State doctrines differ from each other?

Guide to answer

Read cases cited in this chapter, and discuss:

  • How do circumstances in which British act of State is invoked differ from those where foreign act of State is invoked?
  • What are the initial rationales of each of those doctrines and what interests do they purport to safeguard?
  • How did each of those doctrines evolve in judicial practice, and what exceptions to them have been admitted?
  • What other exceptions do you think are necessary, if any, and why?

Chapter 5. Creation and Recognition of States


Materials

1933 Montevideo Convention on Rights and Duties of States
Taiwan’s Accession to WTO as a separate customs territory, WT/L/433, 23 November 2001
EC Guidelines and Opinions on recognition of new States, 1991–1992
Greece–Macedonia Interim Accord, 1995
Prespa Agreement
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) (22 July 2010) ICJ Reports, 2010; and separate opinions of Vice President Tomka and Judge Bennouna
2018 Greece–Macedonia Agreement relating Macedonia’s name

British Arab Commercial Bank Plc v The NTC of the State of Libya, 2011 EWHC 2274
Bouhadi v Breish, High Court judgment 2016
Mohammed v Breish, [2019] EWHC 306 (Comm)
Maduro Board v Guaidó Board [2020] EWCA Civ 1249
These cases demonstrate the problems arising with the English courts’ reliance on the Executive’s position in the matters of recognising foreign States and governments, as highlighted in Chapter 5.

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports, 1971, 16
ECJ judgment on Anastasiou, 5 July 1994
ECJ judgment on Brita, 25 February 2010
These cases expose the implications of the duty not to recognise illegal territorial changes discussed in Chapter 5.

J. Crawford, Creation of States in International Law (OUP 2006), Chapters 2–5
G. Fitzmaurice, 30 BYIL (1954), 2–5
H. Al-Baharna, The Legal Status of Arabian Gulf States (1968), 61–67
S. Charnowitz, Taiwan’s WTO Membership and Its International Implications, 1 Asian Journal of WTO and International Health Law and Policy (2006), 401
J. Dugard, Recognition and the United Nations (CUP 1987)
C.G. Fenwick, The Recognition of New Governments Instituted by Force, 38 AJIL (1944), 448
S. Talmon, Recognition of Governments: An Analysis of the New British Policy and Practice, 61 BYIL (1992), 231
S. Hille, Mutual Recognition of Serbia and Croatia, 6 EJIL (1995), 598
H. Lauterpacht, Recognition of States in International Law (1943–1944) 53 Yale Law Journal 385
R. Rich, Recognition of States: The Collapse of Yugoslavia and the Soviet Union, 4 EJIL (1993), 36
D. Turns, The Stimson Doctrine of Non-Recognition: Its Historical Genesis and Influence on Contemporary International Law, 2 Chinese Journal of International Law (2003), 105
H. Aufricht, Principles and Practices of Recognition by International Organizations, American Journal of International Law, Vol. 43, No. 4 (October 1949), 679–704
Sean D. Murphy, Democratic Legitimacy and the Recognition of States and Governments, International and Comparative Law Quarterly, Vol. 48, No. 3 (July 1999), 545–581
Z. Nedjati, Acts of Unrecognised Governments, International and Comparative Law Quarterly, Vol. 30, No. 2 (April 1981), 388–415

Discussion Questions

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

Quiz question

What does it take to recognise a State or government? How do you identify whether recognition has or has not been given to the relevant entity?

Guide to answer

Read cases of Namibia, Anastasiou, Brita, and other materials cited in this chapter, and discuss:

  • What types of contact, cooperation or activities, what types of policy statements involve an intention to recognise?
  • Could recognition be given in circumstances when it is being disclaimed?

Comments & Updates

Recognition of governments

From early 2019 onwards, the results of the election returning President Nicolas Maduro to power have been contested by the opposition, and the president of the National Assembly Juan Guaidó has declared himself as the country’s interim president. He was recognised as such by a number of European States and the US, among others.

On 24 January 2019, the UK Foreign Secretary has stated that “the United Kingdom believes Juan Guaidó is the right person to take Venezuela forward.”

In the statement issued on 29 January 2019, “The UK along with Spain, Portugal, Germany, Denmark, the Netherlands, France, Hungary, Austria, Finland, Belgium, Luxemburg, the Czech Republic, Latvia, Lithuania, Estonia, Poland, Sweden and Croatia . . . and in accordance with the provisions of the Venezuelan Constitution, they acknowledge and support Mr. Juan Guaidó, President of the democratically elected National Assembly, as President ad interim of Venezuela, in order for him to call for free, fair and democratic presidential elections.”

The above statement makes no allusion to pertinent clauses in Venezuela’s constitution. Ostensibly, at least, the above policy is premised on internal legitimacy as the recognition criterion, as opposed to effectiveness (see Akehurst p. 113 for background). However that requires identifying the basis validating this policy in the Venezuelan Constitution. Moreover, Joint Declaration of the UK and European Countries of 4 February 2019 expressly relies on Article 233 Venezuelan Constitution as basis for its recognition policy with regard to Venezuela’s leadership.

Article 233 Venezuelan Constitution provides:

“The President of the Republic shall become permanently unavailable to serve by reason of any of the following events: death; resignation; removal from office by decision of the Supreme Tribunal of Justice; permanent physical or mental disability certified by a medical board designated by the Supreme Tribunal of Justice with the approval of the National Assembly; abandonment of his position, duly declared by the National Assembly; and recall by popular vote.

When the President of the Republic becomes permanently unavailable to serve during the first four years of this constitutional term of office, a new election by universal suffrage and direct ballot shall be held within 30 consecutive days. Pending election and inauguration of the new President, the Executive Vice-President shall take charge of the Presidency of the Republic.”

On the basis of Venezuela’s Constitution, there is, thus, no reason to say that President Maduro has been or is “permanently unavailable”. Juan Guaidó and his supporters have not cited any reason that the Constitution would allow him to take the president’s office pending fresh elections or on any other ground.

A separate issue is that of the rigging of the elections, which is not a phenomenon unknown to a number of countries. However, even if it were to be proved that presidential elections in Venezuela were rigged, this would hardly enhance or benefit Juan Guaidó’s constitutional position and claims, owing to the conditions on which the Constitution recognises his current position as the speaker.

The outcome is that President Maduro remains Venezuela’s president; if he were to be overthrown through domestic processes or foreign intervention as has been mooted repeatedly by now, the nature and degree of illegalities involved in such regime change would depend on which entities would be involved, either in terms of the domestic Constitution of Venezuela, or international law if regime change were to be externally engineered or assisted.

Recognitions of Juan Guaidó as Venezuela’s interim leader are therefore unlawful and premature. The US “call on other governments to recognize interim President Juan Guaidó and take similar steps to protect Venezuela’s patrimony from further theft by Maduro’s corrupt regime” (29 January 2019) further exposes that the US recognition policy operates without regard to the effectiveness of the government that is being recognised, and as a tool of externally engineered change of the target State’s government.

The US government has begun according to Guaidó the prerogatives that ought to be enjoyed only by governments of a sovereign State. On 27 January 2019 it was stated that “The United States accepted interim President Juan Guaidó’s designation of Carlos Alfredo Vecchio as the Chargé d’Affaires of the Government of Venezuela to the United States on January 25. Mr. Vecchio will have authority over diplomatic affairs in the United States on behalf of Venezuela. . . . The United States looks forward to working with Mr. Vecchio and other diplomatic staff as designated by interim President Guaidó.”

Assets of Venezuela were also seized in the United States by the US government, in a way comparable to the disposal of Libyan assets in the UK as was dealt with in the British Arab Commercial Bank case before the High Court back in 2011. Under the rubric of Protecting Venezuela’s Assets for Benefit of Venezuelan People, the US government, namely “Secretary of State Michael R. Pompeo certified the authority of Venezuela’s interim President Juan Guaidó to receive and control certain property in accounts of the Government of Venezuela or Central Bank of Venezuela held by the Federal Reserve Bank of New York or any other U.S. insured banks, in accordance with Section 25B of the Federal Reserve Act. This certification will help Venezuela’s legitimate government safeguard those assets for the benefit of the Venezuelan people.”

The difference of all that from the above UK case is that President Maduro is still the effectively and constitutionally operating president of the Venezuelan State, and on legal as well as practical terms, the US owes to Venezuela the duty to compensate for seizing its assets.

The UK Supreme Court’s ruling on Venezuela’s funds deposited in the UK

On 20 December 2021, the UK Supreme Court ruled on the issue of Venezuela’s funds held in the UK (for discussion of the High Court and the Court of Appeal decisions see Akehurst, 9th ed., Chapter 5).

The Court has decided to follow the position taken by the Foreign, Commonwealth and Development Office that Juan Guaido is recognised by the UK as the interim leader of Venezuela. Lord Lloyd Jones placed reliance on the “one voice” principle, according to which the judiciary will not question the executive’s position on recognising or not recognising foreign States and governments (paras 77-79). He further disagreed with the Court of Appeal that the FCDO’s certificate left open the possibility that HMG continues to recognise Mr Maduro as President de facto (para. 89).

The Supreme Court’s decision will no doubt appeal to those who find the so-called “dualist” logic about the relationship between national law and international law attractive (on the merit of which position see Akehurst, 9th ed., Chapter 4). The Supreme Court does not seem to accept that it is not obliged to endorse the Executive’s decisions which may contradict international law.

As is well known, Nicholas Maduro remains the President of Venezuela both in fact and under the Venezuelan Constitution (see above). Juan Guaido does not yield any effective authority in the country, much as he is supported by influential foreign forces. Guaido cannot be viewed to be Venezuela’s President whether this issue is looked at from the prism of the doctrine of effectiveness, or from the prism of constitutional legitimacy. Political considerations notwithstanding, Maduro’s Government is fully entitled to access Venezuela’s funds held in the UK. A refusal to let them do that engages the UK’s responsibility for the seizure for another State’s sovereign assets and for the intervention into Venezuela’s domestic affairs and political processes. In this vein, both recognition of Guaido as head of State and refusal to return to Venezuela its financial assets amount to internationally wrongful acts. As explained in ILC’s Article 4 on State responsibility, a State incurs international legal responsibility for internationally wrongful activities of all its organs, including its courts. The fact that UK law may have obliged UK courts to do what they did does not alter this outcome (see Akehurst, 9th ed., Chapter 4).

The Supreme Court essentially validates the executive’s attempt to influence domestic political process in a foreign country. As has been explained earlier, the UK courts’ jurisprudence on the matters of international law has long since displayed a trend that UK courts perform a political role by taking sides in political controversies abroad, in relation to which the UK government may have taken a position expressly or implicitly. The Supreme Court’s decision further consolidates that trend.

Another rather awkward element in the Court’s reasoning is that the Court referred to Venezuela’s Constitution (Articles 226 and 236) to claim that Guaido is head of the State and national Executive and directs the activities of the government in Venezuela (para. 109). This flies against the fact that Guaido didn’t become the President of Venezuela according to the constitution of that country in the first place. The awkwardness of the Court’s reasoning is obvious if we consider the fact that the Court places reliance on Venezuela’s Constitution to determine that Guaido is a head of State, but does not determine whether Guaido has in fact become Venezuela’s President according to the same Constitution.

Kosovo and recognition of States

The CJEU has issued the judgment on this matter: a comment is available here.

Chapter 6. Legal Personality of Non-State Entities


Materials

ICJ Advisory Opinion on Reparation for Injuries, 1949
ICJ Advisory Opinion on Legality of the Use by a State of Nuclear Weapons in Armed Conflict(WHO Request), 8 July 1996

ECJ judgment on Costa v ENEL, 15 July 1964
ECJ judgment on Kadi v Commission, 3 September 2008
These cases expose the diverse ways in which the EU judiciary can perceive the “autonomy” of the EU legal order and implications of these perceptions.

A.D. McNair, The Law Relating to the Civil War in Spain, Law Quarterly Review (1937), 471
H. Lauterpacht, Recognition in International Law (CUP 1947), 175–238
Practice discussed in these two contributions exposes the motives behind the recognition of belligerency as discussed in Chapter 6.

A. Orakhelashvili, The Position of an Individual in International Law, 31 California Western International Law Journal (2001), 240

Discussion Questions

  1. What is the relevance of the doctrine of delegation for the legal personality and powers of international organisations?
  2. Does the practice of international organisations always comply with restrictions that the scope of their authority and functions or the range of their membership imposes on them?
  3. Is “supranationality” a coherent and viable notion?
  4. What is the net value of the thesis that the EC (EU) amounts to a “new legal order” under international law?
  5. What is the distinct utility of the recognition of belligerency?
  6. Does the claim of legal personality of individuals serve any meaningful purpose? What would an individual gain if it were to be proclaimed as a subject of international law?
  7. What are non-governmental organisations and in which contexts are they relevant?

Chapter 7. Territory


Materials

Minquiers and Ecrehos, ICJ judgment 1954
Qatar v Bahrain, ICJ judgment on merits 2001, paras 36–165
Cameroon v Nigeria, ICJ judgment on merits 2002, paras 30–225
Indonesia v Malaysia, ICJ judgment 2002

H. Waldock, Disputed Sovereignty in the Falklands Islands, 25 BYIL (1948), 311

N. Schrijver and V. Prislan, Cases Concerning Sovereignty over Islands Before the International Court of Justice and the Dokdo/Takeshima Issue, 46 ODIL (2015), 281
J.M. Van Dyke, Legal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary, 38 ODIL (2007), 157

A.B. Quillen, The Kuril Islands or the Northern Territories: Who Owns Them – Island Territorial Dispute Continues to Hinder Relations Between Russia and Japan, 18 North Carolina JIL (1993), 633

The Helsinki Rules on the use of international rivers and waterways

Discussion Questions

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

Quiz question

Discuss the extent to which effective exercise of State authority (effectivités) is required to acquire or retain title over territory.

Guide to answer

What do effectivités consist of? What is their generic essence that distinguishes them from irrelevant factors? What factors could adversely affect or overtake the relevance of effectivités in the relevant case? When are treaties relevant or irrelevant for determining who has title over the contested piece of territory? Does international law treat acquisition of territorial sovereignty and its maintenance in the same way?

Quiz question:

  • Who has sovereignty over Dokdo: Japan or Korea?
  • Who has sovereignty over Kurile Islands: Japan or Russia?

Guide to answer

  • From articles cited above, identify what issues of territorial title and sovereignty arise in these cases.
  • From cases cited in Chapter 7 and in this section, identify how the International Court has dealt with those issues.
  • Suggest how the Court would decide the Dokdo or Kurile Islands issue if these matters were to be submitted to it.

Chapter 8. The Law of the Sea


Materials

UNCLOS 1982
 
B. Buzan, Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea, 75 AJIL (1981), 324

Qatar v Bahrain, ICJ judgment on merits 2001, paras 166ff
Cameroon v Nigeria, ICJ judgment on merits 2002, paras 226ff
Philippines v China, arbitral award on merits 2016
Nicaragua v Colombia, ICJ judgment 2012

V.D. Degan, Internal Waters, Netherlands YIL (1986), 3
A.N. Honniball, The Exclusive Jurisdiction of Flag States: A Limitation on Pro-active Port States? 31 International Journal of Marine and Coastal Law (2016), 499
F. Francioni, Peacetime Use of Force, Military Activities, and the New Law of the Sea, 18 Cornell ILJ (1985), 226

National claims to maritime areas

UK Territorial Waters Order 1964
UK Territorial Waters Act 1987
UK, The Territorial Sea (Baselines) Order 2014

UK maritime limits

ECJ judgment Commission v UK 1991

W.L. Walker, Territorial Waters – The Cannon Shot Rule, 22 BYIL (1945), 210
G. Marston, Low-tide Elevations and Straight Baselines, 46 BYIL (1972–1973), 405

Corfu Channel, ICJ judgment on merits 1949
E. Franckx, Innocent Passage of Warships, Marine Policy (1990)
Joint Statement with Attached Uniform Interpretation of the Rules of Innocent Passage signed by US Secretary Baker and USSR Foreign Minister Shevardnadze on 23 September 1989, US Department of State, Limits of the Seas No 112
These materials highlight the challenges arising with the exercise of the right to innocent passage, as discussed in Chapter 8.

The Saiga judgment of ITLOS, 1999, paras 153–159
Ki Beom Lee, The Korea Coast Guard’s Use of Force Against Chinese Fishing Vessels: A Note, 49 ODIL (2018), 226
Arctic Sunrise, PCA Award on Merits, 14 August 2015, paras 221ff.

IMO Guidance for Ships Transiting Archipelagic Waters, 8 January 1999
K. Baumbert and B. Melchior, The Practice of Archipelagic States: A Study of Studies, 46 ODIL (2015), 60

North Sea Continental Shelf, ICJ judgment 1969
Libya v Malta, ICJ judgment 1985
Jan Mayen, ICJ judgment 1993, with Separate Opinion of Judge Shahabuddeen
These cases illustrate the use and essence of equitable methods of maritime delimitation along the lines discussed in Chapter 8.

G. Vega-Barbosa, The Admissibility of Outer Continental Shelf Delimitation Claims Before the ICJ Absent a Recommendation by the CLCS, 39(2) ODIL (2018), 103
B. Kunoy, Assertions of Entitlement to the Outer Continental Shelf in the Arctic Ocean, 66 ICLQ (2017), 367

S.P. Milan, The Legal Status of the Persian Gulf as a Semi-Enclosed Sea, 25 AVR (1987), 92

Mining Code of the International Sea-Bed Authority
Laws, regulations and administrative measures adopted by sponsoring States and other members of the International Seabed Authority with respect to the activities in the Area, Report by UN Secretary-General, 2017
UK Deep Sea Mining (Temporary Provisions) Act 1981
UK Deep Sea Mining Act 2014

Discussion Questions

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

Quiz question

Is the use of force against a foreign ship, in territorial waters or the high seas, governed by the same principles as use of force in general? Should it be?

Guide to answer

Read Saiga and Arctic Sunrise cases, and the UNCLOS provisions dealt with in those cases. What factors are treated as a matter of priority in those cases? What is the difference between military activities and law enforcement?

Quiz question

Is the current approach to the nationality of vessels on high seas satisfactory?

Guide to answer

Identify relevant passages in Saiga and Arctic Sunrise. What factors do those cases prioritise to determine the nationality of ships? How does nationality of a ship relate to nationality of crew? Do the two cases draw a fair balance in terms of rights and interests of the coastal State and the State of a ship’s nationality? What could be alternative approaches?

Comments & Updates

The ICJ’s judgment on maritime delimitation in Somalia v Kenya

In this judgment, the Court has reiterated the approach asserted across its previous jurisprudence (discussed in Akehurst, 9th ed., Chapter 8), that there is a rather high threshold for proving that a bilateral or unwritten agreement has been reached between two States about the delimitation of maritime boundaries between them, or that one State has accepted or acquiesced into the claim put forward by another State (Judgment, paras 51ff.). Kenya did not maintain its claims consistently and hence no response to those claims was required from Somalia. The acquiescence claim also failed because the Court noted that Somalia considered that the boundary dispute remained unresolved in the pertinent years, and that also allowance was to be made to the fact that over several years Somalia did not have a functioning and operational government, a factor which affected Somalia’s position to react to Kenya’s claims (paras 78–79). (On States and governments see Akehurst, 9th ed., Chapter 5.)

The Court refused to infer the existence of a de facto boundary in the context of the parties’ oil concessions practice. This practice was based on the parties’ caution rather than their sense of legal obligation (para. 87). Later in the judgment, the Court refused to let this factor influence the delimitation on the basis of equidistance (para. 161).

The Court identified relevant coasts by using radial projections which overlap within 200 nautical miles (para. 137), and excluded the relevant area south of the agreed Kenya–Tanzania boundary (para. 138).

The Court’s approach to delimitation corresponds to its earlier jurisprudence (discussed in detail in Akehurst, 9th ed., Chapter 8). Having drawn the provisional equidistance line, the Court recognised in paragraph 169 that “The provisional equidistance line between Somalia and Kenya progressively narrows the coastal projection of Kenya, substantially reducing its maritime entitlements within 200 nautical miles”. Hence, the equidistance line was adjusted northwards.

Maritime delimitation criteria

In the merits judgment on Mauritius v Maldives, the ITLOS Seabed Chamber has refused to consider Blenheim reef as a base point for the purposes of delimitation of maritime areas between the two States, because the reef is a low-tide elevation (para. 153). However later in the Judgment the Chamber observed that “the purpose of the second stage of the delimitation process is to examine whether there are any relevant circumstances requiring the adjustment of the provisional equidistance line, drawn from the selected base points, in order to ensure an equitable solution.” Therefore, Blenheim reef was given half effect (paras 244, 247).

Chapter 9. Air Space and Outer Space


Materials

1944 Chicago Convention on International Civil Aviation
1963 Outer Space Treaty
UN General Assembly resolution 1962 (XVIII): Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space
1979 Moon Agreement

Status of International Agreements Relating to Activities in Outer Space

US–Russia Agreement on International Space Station

Kibris Hava Yollari v Secretary of State for Transport, [2010] EWCA Civ 1093, 12 October 2010
This case demonstrates the dependence of air communication rights on the legality of territorial control.

R Deplano, The Artemis accords: evolution or revolution in international space law? 70 ICLQ (2021), 799

Discussion Questions

  1. How has conventional law on airspace evolved over the twentieth century?
  2. What is the law regarding the entitlement of the territorial State with regard to unauthorised overflight over its territory by foreign civilian and military aircraft?
  3. What is the regime applicable to scheduled and non-scheduled flights?
  4. Do territorial State’s right to control flights into or through its sovereign airspace depend on its effective control of the relevant territory? What other areas of international law are relevant in determining this issue?
  5. Would the definition of air space and specification of the exact boundary between airspace and outer space be desirable and useful? Whose interests militate towards or against certainty regarding this particular matter?
  6. What is the potential of the “common heritage of mankind” doctrine in international space law? How does the relevance of this concept in this area differ from its relevance in law of the sea? How essential is that difference in determining the rights and duties of States with regard to their activities in the outer space?

Reflective quiz question

Read the following blogpost by Jackson and Tzanakopoulos, and answer the following questions:

  • Do you agree that State obligations under ICAO Agreement or the Montreal Convention are obligations erga omnes or erga omnes partes? Would it be right to say that those obligations have indivisible object and do not provide for a bundle of bilateral State obligations?
  • Has the government of Belarus violated its obligations under ICAO Agreement? Has it used force against any other State?
  • Does the text of Article 3bis ICAO Convention sustain the argument that a seizure of or attack on a civil aircraft could amount to use of force contrary to the UN Charter? Do other provisions of the ICAO Agreement strengthen or weaken such presumption?

Chapter 10. State Jurisdiction


Materials

R.Y. Jennings, Extra-territorial Jurisdiction and United States Antitrust Laws, 33 BYIL (1957), 146
F.A. Mann, The Doctrine of Jurisdiction in International Law, 111 RdC (I-1964), 1
M. Akehurst, The Doctrine of Jurisdiction in International Law, BYIL 1972–1973
A. Orakhelashvili, Peremptory Norms in International Law (2006), Chapter 9
A. Orakhelashvili, State Jurisdiction in International Law: Complexities of a Basic Concept, Chapter 1 in A. Orakhelashvili, Research Handbook on Jurisdiction and Immunities in International Law (2015) (open access)

Lotus, PCIJ, series A, no. 10 (1927)
Pinochet, UK House of Lords 1999
Arrest Warrant judgment and Joint Separate Opinion to the ICJ’s judgment on Arrest Warrant, 2002
“Enrica Lexie” Incident, PCA Case No. 2015-28, Award of 21 May 2020

C.K. Hall, The Duty of States Parties to the Convention Against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad, 18 EJIL (2008), 921
UN Committee against Torture, Observations of the Report of Canada, CAT/C/CO/34/CAN, paras 4(g) and 5(f)
UN Committee Against Torture, Concluding observations on the fifth periodic report of the United Kingdom, adopted by the Committee at its fiftieth session (6–31 May 2013), para 17
These materials demonstrate that Article 14 CAT 1984 is not and has never been qualified by any restriction as to its territorial scope.

2003 UK–US Extradition Treaty

Discussion Questions

  1. What are the basic presumptions applicable to the exercise of State jurisdiction?
  2. What is the difference between prescriptive jurisdiction and enforcement jurisdiction?
  3. What is the difference between territoriality and extraterritoriality? In which contexts is this difference manifested?
  4. When is the exercise of State jurisdiction illegal? Does being far-reaching make the exercise of jurisdiction illegal?
  5. Over which crimes is universal criminal jurisdiction applicable?
  6. Does the approach taken by UK, Canadian, and US courts to universal civil jurisdiction comply with international law?

Quiz question

To what extent does universal jurisdiction operate in international law?

Guide to answer

  • What sources of international law endorse universal jurisdiction and in relation to which crimes? Could universal jurisdiction operate without reference to any particular source of law that endorses it?
  • What is the difference between universal criminal jurisdiction and universal civil jurisdiction?
  • What is the relevance of the presence of the accused within the territory of the State exercising jurisdiction? Is that a jurisdictional requirement under international law? Are in absentia trials inherently unlawful under international law?

Chapter 11. Immunity from Jurisdiction


Materials

Trendtex Trading Corporation v Central Bank of Nigeria, Court of Appeal, [1977] 1 QB 529
I Congreso, House of Lords, 1983
These cases demonstrate the scope of the restrictive doctrine of State immunity.

Arrest Warrant judgment and Joint Separate Opinion to the ICJ’s judgment on Arrest Warrant, 2002
ICJ judgment on Jurisdictional Immunities (Germany v Italy), 2012
“Enrica Lexie” Incident, PCA Case No. 2015-28, Award of 21 May 2020
Immunities and Criminal Proceedings (Equatorial Guinea v France), judgment of 11 December 2020
ILC Work on Immunity of State officials from foreign criminal jurisdiction
I. Sinclair, European Convention on State Immunity, 22 ICLQ (1973), 254
D.W. Greig, Forum State Jurisdiction and Sovereign Immunity Under the International Law Commission’s Draft Articles, 38 ICLQ (1989), 243
A. Orakhelashvili, review of the Jurisdictional Immunities judgment, 106 AJIL (2012), 609
A. Orakhelashvili, State Practice, Treaty Practice and State Immunity in International and English Law, M. Andenas and E. Bjorge (eds.), A Farewell to Fragmentation: Reassertion and Convergence in International Law (CUP 2015), 407
A. Orakhelashvili, Jurisdictional Immunity of States and General International Law – Explaining the Jus Gestionis v. Jus Imperii Divide, in T. Ruys, N. Angelet and L. Ferro (eds.), Cambridge Handbook on Immunities and International Law (CUP 2019), 105–124

UK State Immunity Act 1978
For a commentary see A. Orakhelashvili, Chapter 8: The UK State Immunity Act 1978: History, Scope and Relation to International Law, in A. Orakhelashvili, Research Handbook on Jurisdiction and Immunities in International Law (Elgar 2015)

1972 European Convention on State Immunity, together with Explanatory Report, its ratification status, and declarations made by States-parties
2004 UN Convention on Jurisdictional Immunities of States, and its ratification status, with declarations and reservations made by States-parties
For a commentary see A. Orakhelashvili, Chapter 9: Treaties on State Immunity: the 1972 and 2004 Conventions, in A. Orakhelashvili, Research Handbook on Jurisdiction and Immunities in International Law (Elgar 2015)

Practice of Italian courts overviewed: Simoncioni, Decision No 238, Italian Constitutional Court 2013, Deutsche Bahn case 2019, Flatow case 2016

S.R. Subramanian, Abuse of Diplomatic Privileges and the Balance Between Immunities and the Duty to Respect the Local Laws and Regulations Under the Vienna Conventions: The Recent Indian Experience, 3 The Chinese Journal of Global Governance (2017), 182
Xinxiang Shi, Official Acts and Beyond: Towards an Accurate Interpretation of Diplomatic Immunity Ratione Materiae Under the Vienna Convention on Diplomatic Relations, Chinese Journal of International Law (2019), 669
Reyes v Al-Malki, UK Supreme Court judgment 2017

Discussion Questions

  1. What is the content of the restrictive doctrine of State immunity and how does it differ from the doctrine of absolute State immunity?
  2. What versions of State immunity rule has State practice proposed over past few decades? Are those versions mutually consistent? Can they apply simultaneously to the same conduct of a State?
  3. To what extent does the UK State Immunity Act 1978 reflect the international legal position on State immunity?
  4. Do treaties on State immunity provide a reliable guide as to the international legal position on State immunity?
  5. Do the House of Lords decision in Jones v Saudi Arabia and the ICJ’s decision on Jurisdictional Immunities adhere to restrictive doctrine of State immunity?
  6. Does the distinction between criminal and civil proceedings make sense in determining when State immunity should apply?
  7. Does the Jurisdictional Immunities judgment correctly assess the state of customary law on State immunity? Does it cover the practice of sufficient number of States?
  8. What is the continuing relevance and sustainability of the approach to State immunity taken in Jones and Jurisdictional Immunities?
  9. What is the scope of State officials’ immunity ratiome materiae?
  10. Is the approach taken by an English court in the Mofaz case and in the UK government’s Note on the investigation and prosecution of crimes of universal jurisdiction (para. 43) in accordance with the International Court’s approach on the immunity ratione personae?
  11. How does the scope of diplomatic immunity differ from that of the immunity of State officials?
  12. Is the scope of immunity from execution different from that of immunity from adjudication? What kind of property is protected from execution and for which reason? Do State property in general and diplomatic agency’s property in particular have to be treated the same way?

Comments & Updates

Some latest practice on State immunity

On 20 January 2021, the Supreme Court of Germany (Bundesgerichtshof) decided that no immunity is available in criminal proceedings where a State official is prosecuted abroad for the commission of one of the core international crimes, in this case torture. This decision contains a rather streamlined analysis of the law relating to the facts of the case and adds to the existing jurisprudence about the unavailability of State immunity for international crimes.

The Supreme Court held that, while immunity ratione personae is available to heads of State, heads of government, and foreign ministers in line with the ICJ’s 2002 decision on Arrest Warrant, State officials who are lower in rank than the above-named persons do not enjoy functional immunity for international crimes (para. 39).

The Supreme Court also held that the existence of some isolated voices among international law writers that State officials enjoy immunity under international law even when they are accused of core international crimes was not sufficient to let the Court alter its conclusions (para. 59). It is also important that the Court decided that it was not necessary for it to address the issue as to whether a State’s ratification of the 1984 UN Convention on Torture removes the otherwise existing immunity available to State officials, as some writers had contended the Convention does. The Court refused to enter into discussion regarding this issue because the immunity in question was not available under customary international law anyway (para. 60).

See further here (section V), for a discussion of the Torture Convention in the context of State immunity.

On a related note, the Supreme Court of Brazil issued a decision in September 2021 in which it ruled on State immunity for acts amounting to international crimes, and refused to let the ICJ’s 2012 decision on Jurisdictional Immunities (Germany v Italy) affect the outcome of the case. This continues the approach which Italian and Korean courts have adopted, in 2013 and 2021, respectively.

State immunity and territorial torts

The High Court Judgment on Al-Masarir: a comment is available here.

State immunity and Jus Cogens

ILC’s work on jus cogens: a comment is available here.

Diplomatic Immunity

In Basfar v Wong, the UK Supreme Court has held that the employment of a domestic worker does not amount to commercial activity in the sense of the 1961 Vienna Convention on Diplomatic relations. However, exploiting domestic workers in the condition of modern slavery was not the same as an ordinary employment relationship, because the voluntariness requirement characteristic to employment relations would not be met. The respondent has made commercial profit by withholding salaries from the applicant. On those facts, the respondent would not benefit from the immunity otherwise available to it under the Convention.

Chapter 12. Law of Treaties


Materials

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

ICJ judgment on Qatar v Bahrain, 1994, paras 21ff
This case acutely exposes the parameters of the definition of a treaty under Article 2 VCLT 1969

A Zimmerman & N Jauer, Legal shades of grey? Indirect legal effects of 'Memoranda of Understanding', 59 AVR (2021), 278

UK–France Continental Shelf Arbitral Award, 1977
Loizidou v Turkey, ECHR judgment on preliminary objections 1995
UN Human Rights General Comment No 24, 1994
The position of Chairpersons Human Rights treaties on reservations to human rights treaties
These materials acutely illustrate the regime of validity and opposability of reservations made by States to treaties.

IMCO advisory opinion, ICJ 1960
Philippines v China, arbitral award on merits, 2016
Whaling in the Antarctic (Australia v Japan), ICJ judgment 2014
These cases illustrate the challenges arising when the Vienna Convention requirements on treaty interpretation are applied to contested terms contained in a treaty.

Reyes v Al-Malki, UK Supreme Court judgment 2017
This case purports to show the limits on the evolutive interpretation of treaties.

Gabcikovo/Nagymaros (Slovakia/Hungary), ICJ judgment of 25 September 1997
Racke v Hauptzollamt Mainz, ECJ judgment, 16 June 1998

Discussion Questions

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

Quiz question

What is the relevance of subsequent practice under international law?

Guide to answer

  • What are statutory conditions of subsequent practice under VCLT? How does subsequent practice differ from subsequent agreement?
  • How was subsequent practice dealt with in these cases: ICJ, Kasikili/Sedudu (Botswana/Namibia) 1999, and CJEU, Council of the European Union v Polisario Front, Case C‑104/16 P, 21 December 2016?
  • What are the criteria for relevance of subsequent practice and criteria of its legality?
  • How similar or different is the process of formation of subsequent practice to treaties or customary rules of international law?
  • Why is it that subsequent practice is pleaded by counsel rather frequently but form part of judicial reasoning very rarely?

Chapter 13. State Responsibility


ILC Articles on State responsibility with commentaries, 2001
ILC draft articles on Prevention of Transboundary Damage from Hazardous Activities

Convention on International Liability for Damage Caused by Space Objects

Corfu Channel, ICJ judgment on merits 1949
Tehran Hostages, ICJ judgment on merits 1980
Military and Paramilitary Activities in and Against Nicaragua, Merits, ICJ Reports 1986, 14, paras 92–122
Application of the Genocide Convention (Bosnia v Serbia), ICJ judgment of 26 February 2007, paras 202–230, 377–471
These cases are of key importance in assessing the extent of State responsibility in relation to acts carried out by other entities, as discussed in Chapter 13.

Gabcikovo/Nagymaros (Slovakia/Hungary), ICJ judgment of 25 September 1997
Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v Greece), judgment of 5 December 2011
These cases illustrate the limited scope to which defences can be invoked in the law of State responsibility.

Discussion Questions

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

Reflective quiz question

Assess judicial practice on reparation.

Guide to answer

Read two arbitral awards on reparation, Duzgit Integrity and Arctic Sunrise. Are awards of reparation in those cases adequate to remedy the harm caused? Do these two awards meet the priority stated in Chorzhow by PCIJ that reparation must wipe out consequences of an internationally wrongful act?

Reflective quiz question

What difference does the remedy of guarantees of non-repetition make?

Guide to answer

Read these two decisions: 2001 LaGrand judgment on merits, paras 117ff, and 2019 Jadhav judgment on merits, paras 133ff. What is the range of remedies awarded in those cases? How do guarantees of non-repetition protect the rights of States of nationality? Do guarantees of non-repetition make more sense when they are awarded together with other remedies?

Comments & Updates

Reparation awarded in DRC v Uganda

On 9 February 2022, the International Court of Justice rendered its judgment on reparation to be awarded to the Democratic Republic of the Congo (DRC) in DRC v Uganda case, at the merits stage of which case the Court has found that Uganda has violated applicable rules of international law when undertaking military operations on the territory of DRC. The Court obliged Uganda to pay the total amount of 325 million US dollars to the DRC for the relevant violations, to be paid in five annual instalments of 65 million dollars starting on 1 September 2022. The Court has also determined that the annual post-judgment interest of 6 per cent will accrue on any overdue amount as from the day which follows the day on which the instalment was due.

The Court has rejected Uganda’s claim that it should rule that formal findings of the DRC’s international responsibility in the 2005 Judgment constitute an appropriate form of satisfaction for injuries suffered by the DRC. Reparation awarded by the Court extends to loss of life, personal injury, sexual violence, and damage to property.

Chapter 14. State Succession


Materials

1978 and 1983 Conventions on State succession
M. Craven, The Problem of State Succession and the Identity of States Under International Law, 9 EJIL (1999), 142
M. Craven, The Genocide Case, the Law of Treaties and State Succession, 68 BYIL (1998), 127
J. Chan, State Succession to Human Rights Treaties: Hong Kong and the International Covenant on Civil and Political Rights, 45 ICLQ (1996), 928

Timeline of events over which State succession issues have arisen:

1795 – partition of Poland between Prussia, Austria, and Russia
1918 – end of First World War and dissolution of Austrian, Ottoman, and Russian Empires
1938 – annexation of Austria by German Reich
1945 – allied occupation of Germany
1949 – creation of Western and Eastern German States
1975 – reunification of Vietnam
1990 – unification of Yemen and Germany
1991 – dissolution of USSR
1992 – dissolution of SFRY
1997 – restoration of Hong Kong to China
2005 – independence of South Sudan

Discussion Questions

  1. Is there general international law on State succession? Does international law provide for a ready-made or transparent concept of succession?
  2. Do 1978 and 1983 conventions provide a fair and sustainable balance of rights and interests as between predecessor, successor, and third States?
  3. What is the relevance of pre-empting State succession through special agreements?
  4. Is succession to human rights treaties automatic?
  5. What is the impact of the Sino-British Joint Declaration on Hong-Kong on the continuing applicability of the ICCPR to Hong-Kong?
  6. Has the International Court of Justice dealt with the issue of succession by Federal Republic of Yugoslavia (FRY) to the former Socialist Federal Republic of Yugoslavia (SFRY) coherently?
  7. Do Articles 11 and 12 of the 1978 Vienna Convention on State succession accurately reflect the legal position on succession in relation to territorial rights?

Quiz question

Could State succession apply across the board to all cases of change of sovereignty over a territory?

Guide to answer:

  • Are all cases of change of sovereignty over a territory similar? What differentials do various situations involve? How do situations of unification, separation, and dissolution compare to each other?
  • How does identity and continuity of a State influence matters of succession?
  • How does the legality of territorial change influence matters of State succession?
  • Would applying the same principles of succession to all cases of territorial change lead to a fair balance of rights and interests between predecessor, successor, and third States?

Chapter 15. Protected Persons and Entities: Nationality and Individual Rights


Materials

Nottebohm (Second Phase), ICJ judgment 1955
2019 Jadhav judgment on merits
ILC draft articles on diplomatic protection, 2006
1997 European Convention on Nationality
Hilal Al-Jedda v Secretary of State for the Home Department, Court of Appeal (Civil Division), [2012] EWCA Civ 358

NAFTA Chapter 11
G. Fitzmaurice, The Meaning of the Term “Denial of Justice”, 13 BYIL (1932), 92
F. Francioni, Access to Justice, Denial of Justice and International Investment Law, 20 EJIL (2009), 729
C. Schreuer, Full Protection and Security, 2 JIDS (2010), 1

Discussion Questions

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

Quiz question

What happens when two States disagree as to whose national the relevant individual person is?

Guide to answer

Read the cases and treaties referred to in Chapter 15. Is one State obliged to recognise another State’s grant of nationality to:

  • A person entitled to that nationality under the latter State’s laws;
  • A person who is the former State’s national;
  • A person whom international law does not consider to be the former State’s national?

What sources of international law become relevant in this process?

Comments & Updates

The right of a child to acquire nationality

Article 24(3) ICCPR requires that “Every child has the right to acquire a nationality”. In DZ v Netherlands the UN Human Rights Committee has addressed the situation that the child in question was born in the Netherlands, yet the Dutch legislation prevented his access to Dutch nationality and prevented him from being recognized as stateless. The Committee saw that the Dutch Judiciary “acknowledged that the lack of a status determination procedure in the State party meant that individuals entitled to protection, including children, were falling through a gap in legislation” (para. 8.5). The State had thereby “acknowledged that the author is currently unable to effectively enjoy his right as a minor to acquire a nationality”. The violation of Article 24(3) was therefore identified.

Chapter 16. Protected Persons and Entities: Human Rights, Group Rights, and Self-Determination


Materials

Human rights

UN Human Rights Treaties database
Al-Skeini v UK, ECHR Grand Chamber judgment 2011

ICESCR General Comment No. 3
Report of the Special Rapporteur on extreme poverty and human rights, Philip Alston, A/HRC/29/31, 27 May 2015
Extreme Poverty and Human Rights, Report of the Special Rapporteur on extreme poverty and human rights, A/72/502, 4 October 2017
Report of the Special Rapporteur on extreme poverty and human rights on his mission to the United States of America, A/HRC/38/33/Add.1, 4 May 2018
These materials demonstrate the interdependence between political and civil and socio-economic human rights, as well as outcomes required on the ground by treaty obligations discussed in Chapter 16.

Minority and group rights

1992 European Charter for Regional or Minority Languages, and its ratification status

1992 Framework Convention for the Protection of National Minorities, and reservations and declarations to it

Self-determination

Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by General Assembly resolution 1514 (XV) of 14 December 1960
Non-Self-Governing Territories within the UN system
Western Sahara, Advisory Opinion, ICJ Rep. 1975, 12
ICJ Advisory Opinion on Wall in Occupied Palestinian Territory, 2004
Chagos Archipelago, ICJ Advisory Opinion, 2019

ECJ Case C-104/16 P, Polisario2006
2018 Western Sahara Campaign, ECJ judgment

UN General Assembly declaration on permanent sovereignty over natural resources
R. McCorquodale, Negotiating Sovereignty: The Practice of the United Kingdom in Regard to Self-Determination, 66 BYIL (1996), 283
M. Weller, Settling Self-determination Conflicts: Recent Developments, 20 EJIL (2009), 111

Timeline on self-determination:

1918 – dissolution of German, Austrian, Ottoman, and Russian Empires
1919 – creation of the League of Nations and its mandates system
1945 – endorsement of the right to self-determination in the UN Charter, creation of trusteeships and non-self-governing territories status
1960 – UN General Assembly proclaims that non-self-governing territories have right to self-determination
1962 – UN General Assembly proclaims the right of peoples to have permanent sovereignty over their natural resources
1966 – UN human rights covenants endorse the right of all peoples to self-determination
1995 – ICJ confirms the right to self-determination of East Timor, in a non-colonial context
2004 – ICJ confirms the right to self-determination of Palestine, in a non-colonial context

Discussion Questions

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

Quiz question

Discuss the relevance of self-determination with regard to Palestine, Kosovo, and Chagos archipelago.

Guide to answer

Are the three cases similar? What do relevant sources of international law and relevant decisions of international courts suggest about each of those cases? Do all those cases involve a self-determination unit? Why, or why not?

Quiz question

What is the relationship between self-determination and territorial sovereignty?

Guide to answer

Read relevant UN General Assembly resolutions on self-determination and court decisions referred to in Chapter 16 (also consult Chapter 5 and Chapter 8); do those materials endorse the thesis that a self-determination unit has a valid claim to all its territory? Do you agree with the outcome? What would be implications if it was otherwise?

Comments & Updates

Climate change and its impact on the right to privacy

See the entry on Chapter 17.

Self-determination and permanent sovereignty over natural resources in Polisario v Council (CJEU)

In the above judgment the Court has annulled the deals between the EU and Morocco with regard to Western Sahara (on discussion of the background on these matters see Akehurst, 9th ed., Chapters 5 and 16). Basing itself on the relevance of the principle of self-determination and the relevance of Polisario as the representative of the self-determination unit (the Sahrawi people), the Court of Justice of the European Union has specified that “the Council wrongly considered that the current situation in that territory did not make it possible to secure the consent of that people and, in particular, through the applicant” (para. 364).

The implication of the Court’s judgment is that the EU fishermen cannot lawfully operate in Western Sahara’s waters on the basis of Morocco’s permits. For a similar approach with regard to trade relations, see another of the Court’s judgments.

Self-determination and the independence referendum in Scotland

The recent case decided by the Supreme Court saw the UK Government’s acknowledgment that “the United Kingdom recognises and respects the right of self-determination in international law”; yet the Government did not agree that “the right to self-determination in international law obliges the United Kingdom to make provision, either through the terms of the Scotland Act or otherwise, for a further advisory referendum on Scottish independence in the terms of the proposed Bill” (para. 88). The Court has rejected the thesis that self-determination requirements apply to Scotland (para. 90). That is a correct conclusion. At the same time, the logic in the Government’s (above) and the Court’s assessment of this issue is somewhat confusing. The Court states with regard to the Scotland Act on devolution that “Nothing in the allocation of powers, however widely or narrowly interpreted, infringes any principle of self-determination”. For if, as is the case, Scotland is not a self-determination unit, the analysis of Scotland-related UK legislation in terms of the latter’s compatibility with the principle of self-determination as part of international law is moot.

Relationship between human rights law and humanitarian law

In Netherlands and Ukraine v Russia the European Court of Human Rights held that “the simultaneous application of provisions of international humanitarian law in a context of armed conflict cannot remove allegations of Convention violations from the Court’s ratione materiae jurisdiction.” (para. 718) The Court concluded that “there is no apparent conflict between the provisions of the Convention and the relevant provisions of international humanitarian law in respect of the complaints made, with the possible exception of the complaints under the substantive limb of Article 2.” (para. 720)

Racial discrimination

In the merits judgment on CERD (Ukraine v Russia), the International Court has addressed the issue of racial discrimination and the two elements contained in its definition in Article 1 CERD: differentiation between persons based on one of the prohibited grounds stated in Article 1, and the “purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights”. The Court has observed that “A measure whose stated purpose is unrelated to the prohibited grounds contained in Article 1, paragraph 1 [CERD], does not constitute, in and of itself, racial discrimination by virtue of the fact that it is applied to a group or to a person of a certain race, colour, descent, or national or ethnic origin. However, racial discrimination may result from a measure which is neutral on its face, but whose effects show that it is “based on” a prohibited ground. This is the case where convincing evidence demonstrates that a measure, despite being apparently neutral, produces a disparate adverse effect on the rights of a person or a group distinguished by race, colour, descent, or national or ethnic origin, unless such an effect can be explained in a way that does not relate to the prohibited grounds in Article 1, paragraph 1. Mere collateral or secondary effects on persons who are distinguished by one of the prohibited grounds do not, in and of themselves, constitute racial discrimination within the meaning of the Convention.” (para. 196)

The Court held “that the prominent political role and views of these persons within their respective communities do not, as such, establish that they were targeted on the basis of their ethnic origin.” (para.214) Also, “physical violence in Crimea was not only suffered by Crimean Tatars and ethnic Ukrainians, but also by persons of Russian and Central Asian origin” (para.216) Therefore, “the Court [was] not convinced by the evidence placed before it that Crimean Tatars and ethnic Ukrainians were subjected to acts of physical violence based on their ethnic origin.” (para.217) This has led to the Court’s finding that Russia had not violated its duty to investigate racial discrimination claims, because there was no reasonable ground to suspect that racial discrimination had taken place (para. 220). However, the Court held that Russian educational policies in Crimea since 2014 has violated the Convention (para. 370).

Chapter 17. Protection of the Environment


Materials

1972 Stockholm Declaration (p.8)
1992 Rio Declaration
Convention on the Climate Change, Kyoto Protocol, and 2015 Paris Agreement
Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, ITLOS Advisory Opinion of 1 February 2011
Gabcikovo/Nagymaros (Slovakia/Hungary), ICJ judgment of 25 September 1997
ICJ judgment on Pulp Mills (Argentina v Uruguay), 2010
Whaling in the Antarctic (Australia v Japan), ICJ judgment 2014
ICJ judgment on Costa Rica v Nicaragua, 2015
US-Import Prohibition of Certain Shrimp and Shrimp Products, AB-1998-4, Report of the Appellate Body, WT/DS58/AB/R, 12 October 1998
GATT Panel Report, Tuna-Dolphin II, DS29/R(1994)

Discussion Questions

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

Reflective quiz question

Is there one single duty to prevent environmental harm applicable to all situations where such harm is likely to occur?

Guide to answer

  • Explore the rationales of the general prevention duty, precautionary principle, and EIA obligation, especially as discussed in cases of Pulp Mills and Costa-Rica v Nicaragua.
  • At what point are each of those duties triggered and what do they involve?
  • Would the protection of the environment be enhanced if all these obligations were to be viewed as parts of the single normative frameworks? Would such outcome be endorsed by the relevant sources of international law?

Comments & Updates

Climate change and its impact on the right to privacy

In its report in the case of Daniel Billy v Australia, the UN Human Rights Committee has concluded that Australia’s failure to adequately protect indigenous people against adverse impacts of climate change violated their rights to enjoy their culture and be free from arbitrary interferences with their private life, family and home. The Committee has pointed out that the relevant people “depend on fish, other marine resources, land crops, and trees for their subsistence and livelihoods, and depend on the health of their surrounding ecosystems for their own wellbeing” (para. 8.10). When addressing the scope of Article 17 ICCPR (privacy), the Committee held that it “should not be understood as being limited to the act of refraining from arbitrary interference, but rather also obligates States parties to adopt positive measures that are needed to ensure the effective exercise of the rights under article 17 in the presence of interference by the State authorities and physical or legal persons”. The respondent State had undertaken a number of relevant steps but “the State party has not explained the delay in seawall construction with respect to the islands where the authors live. It has not contested the factual allegations set forth by the authors concerning the concrete climate change impacts on their home, private life and family. The Committee notes that the State party has not provided alternative explanations concerning the reduction of marine resources used for food, and the loss of crops and fruit trees on the land on which the authors live and grow crops, elements that constitute components of the authors’ private life, family and home. The Committee notes the authors’ specific descriptions of the ways in which their lives have been adversely affected by flooding and inundation of their villages and ancestral burial lands; destruction or withering of their traditional gardens through salinification caused by flooding or seawater ingress; decline of nutritionally and culturally important marine species and associated coral bleaching and ocean acidification. The Committee also notes the authors’ allegations that they experience anxiety and distress owing to erosion that is approaching some homes in their communities, and that the upkeep and visiting of ancestral graveyards relates to the heart of their culture, which requires feeling communion with deceased relatives. The Committee further notes the authors’ statement that their most important cultural ceremonies are only meaningful if performed on native community lands” (para 8.12). On this basis, the Committee has concluded that the respondent State has violated Article 17 ICCPR.

Chapter 18. International Economic Relations


Materials

Oscar Chinn, PCIJ series A/B, no. 63 (1934), 81
Nicaragua, ICJ judgment on merits 1986
Oil Platforms, ICJ judgment on preliminary objections 1996
These cases demonstrate how general international law regulates rights and obligations of States with regard to trade.

General Agreement on Tariffs and Trade
C. Brown (ed.), The Law, Economics and Politics of Retaliation in WTO Dispute Settlement (CUP 2010)

IMF Articles of Agreement
Article IV of the Fund’s Articles of Agreement: An Overview of the Legal Framework, prepared by the Legal Department, in consultation with the Policy Development and Review Department, approved by Sean Hagan, 28 June 2006
Review of the 1977 Decision on Surveillance over Exchange Rate Policies Preliminary Considerations,Background Information, and Summing Up of the Board Meeting, 19 July 2006
Bilateral Surveillance over Members’ Policies Executive Board Decision, 15 June 2007
Report of the Special Rapporteur on extreme poverty and human rights, A/HRC/38/33, 8 May 2018
These materials demonstrate the challenges arising with the IMF’s interpretation of its own competence in dealing with the compliance by member States with the IMF Articles of Agreement, as discussed in Chapter 18.

Discussion Questions

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

Comments & Updates

Article XXI GATT and “emergency in international relations”

In its recent panel report, the WTO Panel has rejected the argument that US–China relations around Hong Kong amounted to an emergency in international relations that could justify a US resort to Article XXI measures under GATT (see Akehurst, 9th ed., Chapter 18). As “a total collapse of [parties’] relations, including economic relations” was identified in other cases, the Panel in the case at hand is of the view that “the events in Hong Kong, China condemned by the United States and other Members have not had an equivalent effect on the relations between the United States and other Members, on the one hand, and China and Hong Kong, China, on the other hand” (para. 7.357).

Chapter 19. International Criminal Justice


Materials

Nuremberg Tribunal Judgment
Tokyo Tribunal Judgment
US war crimes trials
ICTY Statute, ICTR Statute, ICC Statute
ICC Office of Public Prosecutor, Policy Paper on the Interests of Justice, September 2007
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (1993)
Security Council Resolution 827 (1993)
Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, 4 October 2000, S/2000/915
N. Boister and R. Cryer, The Tokyo International Military Tribunal (OUP 2007)

Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar
ICC-01/19-27, 14 November 2019 | Pre-Trial Chamber III | Decision
ICC Decision on opening investigation on Afghanistan, 5 March 2020
Situation in Palestine, ICC-01/18, 5 February 2021, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/18-143
Qaddafi pre-trial decision 2019
Prosecutor v Qaddafi, ICC Appeal Chamber No. ICC-01/11-01/11, 9 March 2020

Discussion Questions

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

Quiz question

What does the principle of complementarity require under the ICC Statute?

Guide to answer

  • See what provisions of ICC Statute the trial and appeal chambers use; what are crucial words in those provisions that ICC has to interpret and apply?
  • How are those statutory provisions used to balance conflicting considerations arising in that case?
  • Does the ICC have to wait before domestic criminal proceedings are completed?
  • Overall, what difference does it make whether domestic proceedings have been launched, (dis)continued, or completed?

Quiz question

Could prosecutorial discretion be used for extra-legal reasons?

Guide to answer

What provisions in ICC Statute deal with prosecutorial discretion? How are those provisions different from Statute provisions on jurisdiction or admissibility? What are criteria arising under prosecutorial discretion? Who has standing to make determinations on whether a case must be pursued? Could a decision made by a prosecutor be contrary to ICC Statute? If yes, on what ground, and what could be done about it?

What if quiz

What do “interests of justice” include under Article 15 ICC Statute? What would be the implications if “interests of justice” were broad enough to include political considerations involved in conflicts and crises as part of which crimes under ICC’s jurisdiction are committed?

Guide to answer

  • Ascertain what the object and purpose of ICC Statute is.
  • How does complementarity and distribution of authority between international and national courts operate under the Statute? What implications would the broad construction of “interests of justice” have for the attainment of the object and purpose of ICC Statute?
  • What are structural limits on “interests of justice” and how has ICC treated those limits in the Afghanistan decision?

Chapter 20. Use of Force


Materials

Nicaragua v US, ICJ judgment on merits 1986
Oil Platforms (Iran v US), ICJ judgment on merits 2003
Armed Activities (Congo v Uganda), ICJ judgment on merits 2005
UN Secretary-General’s High-Level Panel Report

O. Schachter, The Right of States to Use Armed Force, 82 Michigan LR (1984), 1620
A. Hamid Ghafur, The Legality of Anticipatory Self-Defence in the 21st Century World Order: A Reappraisal, Vol. 54, No. 3, Netherlands International Law Review (2007), 441–490
D.W. Bowett, Reprisals Involving Recourse to Armed Force, 66 AJIL (1972), 1
T.M. Franck, Who Killed Article 2(4)? Or: The Changing Norms Governing Use of Force by States, 64 AJIL (1970), 809
L. Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated, 65 AJIL (1971), 544
T. Franck, Terrorism and the Right to Self-defence, 95 AJIL (2001), 839
M. Bothe, Terrorism and the Legality of Pre-emptive Force, 14 EJIL (2003), 227
A. Orakhelashvili, Collective Security (OUP 2011), Chapter 6
J. Quigley, The Afghanistan War and Self-Defence, 37 Valparaiso University Law Review (2002–2003), 541
J. Rehman and S. Ghosh, International Law, US Foreign Policy and Post-9/11 Islamic Fundamentalism: The Legal Status of the “War on Terror”, 77 Nordic JIL (2008), 87
E. Myjer and N. White, The Twin Tower Attack: An Unlimited Right to Self-Defence? 7 JCSL (2002), 5
C. O’Meara, Should International Law Recognize a Right of Humanitarian Intervention? 66 ICLQ (2017), 441
J. Brunee and . Toope, Are Powerful States Willing but Unable to Change International Law? 67 ICLQ (2018), 263
A. Orakhelashvili, Legal Stability and Claims of Change: The International Court’s Treatment of Jus ad Bellum and Jus in Bello, 75 Nordic Journal of International Law (2006), 371
A. Orakhelashvili, Changing Jus Cogens Through State Practice? – the Case of the Prohibition of the Use of Force and Its Exceptions, in M. Weller (ed.), Oxford Handbook on the Use of Force (OUP 2015), 157
A. Orakhelashvili, Threat, Emergency and Survival: The Legality of Emergency Action in International Law, 9 Chinese JIL (2010), 345 at 355–357, 360–371

British forces air strikes in Iraq and Syria

NATO’s invocation of Article 5 1949 North Atlantic Treaty, 12 September 2001
Communication by the Government of Germany to the UN, 10 December 2015, S/2015/948
Communication by the Government of Norway to the UN, 3 June 2016, S/2016/513
Communication by the Government of Belgium to the UN, 9 June 2016, S/2016/523

Armed Activities on the Territory of Congo (DRC v Uganda), paras 92–105
Communication of the Iraqi Government to the UN, 25 June 2014, UN Doc. S/2014/440
Communication of the Iraqi Government to the UN, 22 September 2014, UN Doc. S/2014/691

L. Doswald-Beck, The Legality of the United States Intervention in Grenada, 31 NILR (1984), 355
R.J. Beck, The Grenada Invasion, International Law and the Scoon Invitation: A 30-Year Retrospective, 102 The Commonwealth Journal of International Affairs (2013), 281

C. Henderson, UK Government’s Legal Opinion on Forcible Measures in Response to the Use of Chemical Weapons by the Syrian Government, 64 ICLQ (2014), 179
C. O’Meara, Should International Law Recognise a Right to Humanitarian Intervention? 66 ICLQ (2017), 441

NATO statement on the use of force against FRY, 23 April 1999
Non-Aligned Movement, 2006 statement on humanitarian intervention (para. 249)

Arria Formula discussions on Article 51 UNC, written statements by States, and comment by Adil Haque

Discussion Questions

  1. What is the scope of the prohibition of the use of force under UN Charter and under customary international law?
  2. What is the practical implication of NATO’s 2001 invocation of Article 5 of the North Atlantic Treaty?
  3. Does the doctrine of “unable and unwilling” fit within the framework of modern jus ad bellum?
  4. What are the stakes with regard to claims as to the applicability of self-defence to attacks perpetrated by non-State actors? What is the difference between anticipatory self-defence and pre-emptive self-defence? Who is likely to endorse or object to such claims and for what reasons?
  5. How do we ascertain whether a government has indeed invited foreign armed forces to act on its territory and the parameters of such invitation? What concerns have arisen in practice as to the authenticity of invitations to intervene?
  6. What motivates States to invoke the doctrine of “humanitarian intervention”?

What if quiz

What would happen if self-defence were to be available with regard to attacks carried out by non-State actors?

Guide to answer

Consider the following factors:

  • Does proving the authorship of a non-State attack prove the same challenge as proving a State-authored attack?
  • Is it feasible to assert that admitting the expansive reading of the right to self-defence is in a genuine interest of a majority of States in the world?
  • How much certainty have Arria formula discussions provided on this issue?
  • Are attempts to re-interpret or alter the existing narrow scope of self-defence that would entail a tenfold increase of cases in which self-defence could be lawfully invoked reasonable?
  • What would be implications of the fact that illiberal States could also lawfully use force more often?

Chapter 21. Laws Applicable to War and Armed Conflict


Materials

1949 Geneva Conventions
1977 Additional Protocols

1939 Trading with the Enemy Act

General Comment No. 35, UN Human Rights Committee, paras 64–67

R. Baxter, So-Called “Unprivileged Belligerents”: Spies, Guerrillas and Saboteurs, 28, BYIL (1951), 323
R. Baxter, The Duty of the Obedience to Belligerent Occupant, 27 BYIL (1950), 235
I.P. Trainin, Questions of Guerrilla Warfare in the Law of War, 40 AJIL (1946), 534
G.I.A.D. Draper, Humanitarian Law and Internal Armed Conflicts, 13 GaJIL (1983), 254
G.I.A.D. Draper, Status of Combatants and the Question of Guerrilla Warfare, 45 BYIL (1971), 173
K. Dörmann, The Legal Situation of “Unlawful/Unprivileged Combatants”, 85 IRRC (2003), 45
A. Orakhelashvili, Overlap and Convergence: The Relationship Between Jus Ad Bellum and Jus in Bello, 12 JCSL (2007), 157

Permanent sovereignty over national resources in the occupied Palestinian and other Arab territories, UN General Assembly Resolution 37/135, 17 December 1982
P. Jessup, A Belligerent Occupant’s Power over Property, 38 AJIL (1944), 457

Kuprsekic, IT-95-16-T, Judgment of 14 January 2000, paras 511–517
Martic, IT-95-11-T, 12 June 2007, paras 464–468
These cases expose the scope of the law of reprisals as discussed in Chapter 21.

Discussion Questions

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

Quiz question

What is the relationship between international human rights law and international humanitarian law:

Guide to answer

Consider the following issues: What are initial conditions of applicability of both bodies of law? Do any intervening factors modify those initial conditions? Consequently, how do the two bodies of law apply to:

  • The active hostilities stage
  • Belligerent occupation
  • Treatment of individual persons (prisoners, unprivileged combatants)

Quiz question

Does IHL regulate the use of natural resources in the occupied territory?

Guide to answer

Consider the following factors:

  • Does IV Geneva Convention touch upon the use of natural resources by a belligerent occupier?
  • What sources of international law deal with this matter and how is the content of those sources of law identified?
  • Was the ICJ correct in DRC v Uganda to deal with occupier’s activities the way it did?

Chapter 22. The United Nations and Peace and Security


Materials

Charter of the UN 1945
Yalta voting formula, 1945

Certain Expenses Advisory Opinion, 1962
Namibia Advisory Opinion, 1971
Tadic, ICTY Appeal Chamber interlocutory appeal decision, 1995
Al-Jedda v UK, ECHR Grand Chamber judgment 2011
These cases demonstrate the conditions of the use of delegated powers by principal organs of the UN in the area of peace and security.

Security Council Resolutions 678(1990), 687(1991), 688(1991), 1441(2002) on Iraq
Security Council Resolutions 731(1992) and 748(1992) on Lockerbie bombing/Libya
Security Council Resolution 1973(2011) on Libya

A. Orakhelashvili, Collective Security (OUP 2011), Chapters 2 and 6

Discussion Questions

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

Chapter 23. Settlement of Disputes


Materials

1907 Hague Convention on Settlement of International Disputes
Statute of the International Court of Justice
Rules of the International Court of Justice
PCA arbitration and mediation rules
WTO, Dispute Settlement Understanding

T. Franck, Fairness in International Law and Institutions (1995), Chapter 6
B. Ramcharan, Preventive Diplomacy at the UN (2008)

Optional Clause Declarations accepting the International Court’s jurisdiction
ICJ Jurisdiction Handbook, 19 August 2014, A/68/963

Nicaragua v US, ICJ judgment on jurisdiction 1984
Lockerbie, ICJ judgment on preliminary objections 1998
CERD (Georgia v Russia), ICJ judgment 2011
Oil Platforms (Iran v US), ICJ judgment on merits 2003
CERD (Ukraine v Russia), ICJ judgment on jurisdiction 2019
These cases illustrate the matters arising with the International Court’s exercise of its jurisdiction under compromissory clauses under Article 36(1) of its statute.

Interhandel (Switzerland v US), ICJ judgment 1959
Cameroon v Nigeria, judgment on preliminary objections 1998
Fisheries Jurisdiction (Spain v Canada), ICJ judgment on jurisdiction 1998; and separate opinion of President Schwebel
These cases illustrate the matters arising with the International Court’s exercise of its jurisdiction under Optional Clause declarations pursuant to Article 36(2) of its statute.

Nottebohm (Second Phase), ICJ judgment 1955
Barcelona Traction, ICJ judgment 1970
Diallo, ICJ judgment on preliminary objections 2007
Loewen v US, ICSID arbitral award 2003
These cases illustrate the dynamics of the nationality of claims rule in international dispute settlement.

Ukraine v Russia, ICJ provisional measures order 2017
Jadhav, ICJ provisional measures orders 2017-2018
CERD (Qatar v UAE), ICJ provisional measures order 2018
These cases demonstrate the more balanced approach to the criteria for indication of provisional measures in the light of problems attendant to the ICJ’s earlier handling of this matter as discussed in Chapter 23.

Western Sahara, Advisory Opinion, ICJ Rep. 1975, 12
ICJ Advisory Opinion on Wall in Occupied Palestinian Territory, 2004
These cases demonstrate the scope of the ICJ’s power to issue advisory opinions requested by principal organs of the UN.

H. Lauterpacht, The Doctrine of Non-Justiciable Disputes in International Law, 24 Economica (1928), 277
S.A. Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice, 1995
A. Orakhelashvili, The Competence of the International Court of Justice and the Doctrine of the Indispensable Party: From Monetary Gold to East Timor and Beyond, 2 JIDS (2011), 373
W. Dodge, National Courts and International Arbitration: Exhaustion of Remedies and Res Judicata Under Chapter Eleven of NAFTA, 23 Hastings ICLR (1999–2000), 357
J. Coe, Taking Stock of NAFTA Chapter Eleven in Its Tenth Year – An Interim Sketch of Selected Themes, Issues, and Methods, 36 Vanderbilt JTL (2003), 1
A. Orakhelashvili, Substantive Applicable Law, Consensual Judicial Jurisdiction, and Public Interest in International Litigation, 55 Japanese YBIL (2011)
J. Gao, The Exhaustion of Local Remedies Rule in the Settlement of Maritime Disputes, 19 Chinese JIL (2020), 425
A. Orakhelashvili, Adjudicating Racial Discrimination Claims: Issues of Jurisdiction and Admissibility in Ukraine v Russia, Moscow Journal of International Law (2021/01), 57

Discussion Questions

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

Quiz question

What is the current value of the Monetary Gold principle?

Guide to answer

  • Look into origins of the indispensable third-party doctrine and assess whether East Timor applied Monetary Gold in its original version.
  • Have other (international or national) tribunals followed the logic of East Timor?
  • Who is interested in preserving the relevance of the absent third-party doctrine?

What if quiz

What if international courts were to relax the rules determining the extent to which States can exercise diplomatic protection on behalf of their nationals:

Guide to answer

Consult Barcelona Traction, Diallo, Nottebohm, Loewen, and figure out the following:

  • What would have happened if the ICJ in Barcelona Traction allowed both the State of nationality of a company and the State of nationality of that company’s shareholders to sue Spain?
  • What impact would it have under a BIT if shareholders have third-party nationality, or a respondent State’s nationality, or if shareholders themselves are corporate entities?
  • What would be implications if more than one State could seize an international tribunal on behalf of the same company or individual?
  • If Loewen had been decided the other way, what would NAFTA tribunals have to do if an investor initially was a national of a non-party to NAFTA and then acquired nationality of a NAFTA State-party?
  • Who wants the diplomatic protection rule to be relaxed? Who would benefit from that? How far is it possible to envisage or endorse that possibility without overlooking the distinction between liberal economic ideology and positive international law?

Quiz question

Where does exhaustion of local remedies stand now? Is the rule swallowed by exceptions?

Guide to answer

Consider the following elements:

  • Practice of various tribunals, such as arbitration, human rights organs, UNCLOS tribunals, ICJ.
  • Is the treatment of the local remedies rule influenced by the same considerations across the jurisprudence of all above tribunals?
  • Are there specific differentials involved in each tribunals’ practice? What are those differentials?
  • What is the potential effect for workload of international tribunals?

Comments & Updates

Advisory opinions

The International Court of Justice has examined a number of preliminary objections against delivering the advisory opinion in the Chagos case. One objection meriting particular attention is the objection that the principle of res judicata would be contravened by delivering the opinion because the Arbitration Tribunal had examined some aspects of the Chagos situation in the 2015 Award on the Chagos Marine Protected Area. The Court was told that Advisory Opinion by the Court would reopen the findings of that Arbitral Tribunal, and the opposite argument was that res judicata would not apply because the matters dealt with in the Award and in the Opinion were not the same.

Paragraph 81 of the Opinion contains the Court’s own position on this matter:

“The Court recalls that its opinion “is given not to States, but to the organ which is entitled to request it” (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, ICJ Reports 1950, p. 71). The Court observes that the principle of res judicata does not preclude it from rendering an advisory opinion. When answering a question submitted for an opinion, the Court will consider any relevant judicial or arbitral decision. In any event, the Court further notes that the issues that were determined by the Arbitral Tribunal in the Arbitration regarding the Chagos Marine Protected Area . . . are not the same as those that are before the Court in these proceedings.”

The Court clearly emphasises the subject-matter difference between the 2015 Award and its own Advisory Opinion. But its approach to res judicata seems to be broader than that. By placing emphasis on the Opinion being requested by UN organs not by States, the Court could be seen to suggest that the res judicata principle only prevents States parties to a previous litigation to reopen its outcome, among others because they are bound by that previous decision, and not UN organs which were not parties to it. Thus, the Court’s principal point seems to be that res judicata is a priori inapplicable to its advisory proceedings, which could thus, in some cases, assume a form of non-binding appeal. The fact that the opinion deals with matters different from those dealt with in the 2015 Award could at most be a coincidental circumstance.

The ICJ’s judgment on preliminary objections in Gambia v Myanmar

In the case of Gambia v Myanmar regarding the claims of violations of the 1948 Genocide Convention, Myanmar raised four preliminary objections to the jurisdiction of the Court and the admissibility of the Application. Most relevantly, Myanmar argued that The Gambia lacked standing to bring this case (para. 32). The Court began addressing this issue by reiterating that the nature of treaty obligations under the Genocide Convention is specific, namely these obligations are objective and not reciprocal (para. 106). (On objective treaty obligations see Akehurst, 9th ed., Chapter 3, as well as here and here .) The Court emphasised that “All the States parties to the Genocide Convention thus have a common interest to ensure the prevention, suppression and punishment of genocide”; obligations under the Convention “are obligations erga omnes partes, in the sense that each State party has an interest in compliance with them in any given case”.

There has long been a body of doctrinal opinion that refused to endorse the position that when erga omnes obligations are at stake in the sense of Barcelona Traction, the standing of all States arises to bring judicial proceedings against the State that violates one of such obligations (see here for discussion of the flaws in that doctrinal opinion). The Court already at the interim proceedings stage has distanced itself from such preconception, and reiterated the same attitude in the judgment at hand. In the key paragraph 108, the Court states the following:

“The common interest in compliance with the relevant obligations under the Genocide Convention entails that any State party, without distinction, is entitled to invoke the responsibility of another State party for an alleged breach of its obligations erga omnes partes. Responsibility for an alleged breach of obligations erga omnes partes under the Genocide Convention may be invoked through the institution of proceedings before the Court, regardless of whether a special interest can be demonstrated. If a special interest were required for that purpose, in many situations no State would be in a position to make a claim. For these reasons, Myanmar’s purported distinction between the entitlement to invoke responsibility under the Genocide Convention and standing to pursue a claim for this purpose before the Court has no basis in law.”

One discrepancy still arises in the Court’s reasoning. The Court’s suggestion that obligations under the Genocide Convention are obligations erga omnes partes is baffling. The Court does cite the 1951 Reservations Advisory Opinion in its judgment (para. 106), but fails to follow that Opinion’s logic rationale that the objective nature of the Genocide Convention obligation was owed to the fact that those obligations bind States independently of their treaty-derived status. In reality, therefore, these are obligations erga omnes, not erga omnes partes (see also here). However this imprecision does not affect the correctness of the Court’s decision that Gambia does have standing it this case.

Admissibility of claims

In Guyana v Venezuela, the Court has emphasised that there is “a distinction between two different concepts: on the one hand, the existence of the Court’s jurisdiction and, on the other, the exercise of its jurisdiction where that jurisdiction is established. Only an objection concerning the existence of the Court’s jurisdiction can be characterized as an objection to jurisdiction.” Guyana v Venezuela, 2022, para. 64

The Court said that the indispensable party doctrine is an aspect of admissibility and not of jurisdiction, but it did not address that doctrine on its head. Instead, the Court relied on 1965 Agreement to dispose of the admissibility claim.
In Certain Iranian Assets, the Court distinguished the underlying context from that involved in Avena (Mexico v US), in which the interdependence of State and individual rights dispensed the requirement to exhaust local remedies. The Court held that “There is not the same relationship of interdependence in respect of the rights that Iran alleges have been violated in this case” (para. 65). However, “Under customary international law, the requirement that local remedies be exhausted is deemed to be satisfied when there are no available local remedies providing the injured persons with a reasonable possibility of obtaining redress” (para. 68) The Court observed that “the United States’ measures complained of by Iran in the present case is that they were established by legislative means, or by executive acts based on legislation, and that they were given effect by court decisions applying federal legislative provisions. As recalled by counsel for Iran, “according to settled United States jurisprudence, where there is an explicit inconsistency between a treaty and a statute adopted later than that treaty, the statute is deemed to have abrogated the treaty in United States law”.” Therefore, “Given the combination of the legislative character of the contested measures and the primacy accorded to a more recent federal statute over the treaty in the jurisprudence of the United States, it appears to the Court that, in the circumstances of the present case, the companies in question had no reasonable possibility of successfully asserting their rights in United States court proceedings.” (para. 73)