Page 1


THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT OF JUSTICE


This page intentionally left blank


The Development of International Law by the International Court of Justice Edited by

CHRISTIAN J TAMS AND JAMES SLOAN

1


3

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors, 2013 The moral rights of the authors have been asserted First Edition published in 2013 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2013937234 ISBN 978–0–19–965321–8 Printed in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.


Preface Courts apply and interpret law, and in applying and interpreting, they engage with it. By engaging, they advance views about the state of the law on the points in dispute. All this may seem obvious, but it raises important questions: What is the status of these judicial ‘views’? Do they influence the development of the law? If so, in what way, and to what extent? This book is an attempt to shed some light on these questions, and to evaluate the impact of one particular court, the International Court of Justice (ICJ), on the development of one particular legal order, international law. The theme is no doubt familiar, but the approach taken in this collection may be less so: the inquiry is organized in the form of ‘field studies’, surveying broadlydefined areas of international law and tracing the impact of ICJ pronouncements— and, where appropriate, those of the Permanent Court of International Justice—on their development. Taken together, these field studies offer readers a balanced and nuanced assessment of the Court’s influence on contemporary international law—a ‘judicial impact assessment’, if you will, based on a broad sample of evidence. This book has its origins in a series of lectures delivered at the University of Glasgow in 2009/10, which have been revised for publication. The series was occasioned by the 75th anniversary of Hersch Lauterpacht’s The Development of International Law by the Permanent Court of International Justice (1934), later expanded to cover the work of the ICJ. The choice of title for this collection is not meant to suggest that this book is in any way a successor to Lauterpacht’s work, the focus and approach of which is quite different. Instead we have chosen it as a small tribute to Lauterpacht’s lasting influence on many of the issues addressed in this book, as well as on the study of the ICJ more generally. As editors, we first and foremost would like to thank the scholars who generously accepted our invitation to participate in this project. In compiling our ‘wish list’ of potential contributors we aimed very high indeed. It was deeply gratifying that virtually all of those approached—whose expertise in the various areas of ‘field study’ is unrivalled—readily agreed to participate. We are very grateful for their participation and the cooperative spirit they have shown throughout. In preparing the manuscript for publication, we have incurred many debts, which we gladly acknowledge: to Ruth Massey for her diligent editorial work on the manuscripts; to the University of Glasgow Chancellor’s Foundation and the Clarke Trust for Legal Education for their financial support; to Emma Brady and Alison Thomas for their skilful handling of the copy-editing process; and to John Louth and Merel Alstein for their encouragement throughout. Finally, we would like to thank the University of Glasgow, School of Law, which has supported this project as part of its strategic focus on international law and internationalization more broadly. Christian J Tams James Sloan July 2013


This page intentionally left blank


Contents List of Abbreviations List of Contributors Table of Cases

xiii xv xix

I. PROLOGUE 1. General Introduction Christian J Tams and James Sloan 2. The International Court of Justice as an ‘Agent’ of Legal Development? Sir Franklin Berman 1. Introduction 2. Legislative intent 3. The World Court’s approach 4. The effect of the Court’s judicial activity 5. Concluding remarks

3

7 7 8 10 17 20

I I . T H E L A W O F TR E A T I E S 3. The Role of the International Court of Justice in the Development of the Contemporary Law of Treaties Vera Gowlland-Debbas 1. Introduction 2. The Court and the diversity of forms and actors involved in treaty-making 3. The Court, the hierarchization of international law, and the concept of collective interest treaties 4. The ICJ and the unity of the international system 5. Concluding remarks 4. The International Court of Justice and State Succession to Treaties: Avoiding Principled Answers to Questions of Principle Andreas Zimmermann 1. Introduction 2. Distinguishing state succession from state identity/continuity in the jurisprudence of the ICJ

25 25 29 34 46 51 53 53 54


viii

Contents 3. Treaty succession in the jurisprudence of the ICJ 4. Impact of the Court’s jurisprudence on the law of treaty succession

57 68

III. THE LAW O F CLAIMS 5. The International Court of Justice and the Law of State Responsibility James Crawford 1. Introduction 2. Contribution of the PCIJ to the law of state responsibility 3. The ICJ’s first responsibility cases and the initiation of the ILC’s work on responsibility 4. Ago’s influence on the ILC’s work 5. The introduction of the concept of obligations owed to the international community as a whole 6. The Court’s activism in Gabčíkovo-Nagymaros 7. Reception and influence of the ILC Articles 8. Conclusion 6. Diplomatic Protection and the International Court of Justice Kate Parlett 1. Introduction 2. Origins of the doctrine of diplomatic protection 3. The inter-war period: the contours of the doctrine as shaped by the PCIJ 4. Diplomatic protection in the ICJ 5. Conclusions: progress and stagnation 7. Jurisdictional Immunities Roger O’Keefe 1. Introduction 2. Less contentious questions 3. More contentious questions 4. The ICJ versus other international lawmaking processes 5. Conclusion

71 71 71 73 75 76 79 81 85 87 87 87 88 93 105 107 107 109 115 146 148

IV. SPATIAL REGIMES 8. The International Court of Justice and the Law of Territory Malcolm N Shaw 1. Introduction 2. Sovereignty, territory, and title 3. Pre-colonial title 4. Validity of colonial title 5. Self-determination and the process of decolonization 6. Uti possidetis

151 151 152 155 156 160 162


Contents 7. Title and boundary treaties 8. Relevance of the exercise of effective authority (effectivités) 9. Territorial integrity and secession in the post-independence situation 10. A role for human rights? 11. Conclusion 9. The Development of the Law of the Sea by the International Court of Justice Vaughan Lowe and Antonios Tzanakopoulos 1. Introduction 2. The development of international law by the ICJ 3. The agents of development of the law of the sea 4. Influencing the development of the law: kind and degree 5. Contribution of the ICJ to the development of the law of the sea 6. Conclusion: the Court’s influence

ix

166 168 172 174 176 177 177 178 179 185 188 193

V. THE UNITED NATIONS 10. The Role of the International Court of Justice in the Development of the Institutional Law of the United Nations James Sloan and Gleider I Hernández 1. Introduction 2. The United Nations as an international organization 3. Powers of the principal organs 4. The Court’s powers vis-à-vis the non-judicial principal organs 5. Conclusion

197 197 200 207 224 233

VI. ARMED CONFLICT 11. The International Court of Justice and the Use of Force Christine Gray 1. Introduction 2. The Court’s first case on the use of force: Corfu Channel 3. The language of the Court in Corfu Channel and subsequent cases 4. The Nicaragua case 5. The prohibition of the use of force 6. Self-defence 7. Conclusion 12. The International Court of Justice and the Law of Armed Conflicts Claus Kreß 1. Introduction 2. The judicial acquis: a sketch

237 237 238 240 241 246 251 260 263 263 264


x

Contents 3. Some reflections on the character and style of the Court’s jurisprudence 4. The Court as a political agent and as a diplomat 5. Conclusion: on the Court’s contribution to the development of the law of armed conflicts

280 290 295

VII. COMMUNITY CONCERNS 13. Human Rights Before the International Court of Justice: Community Interest Coming to Life? Bruno Simma 1. Introduction 2. The first phase: hesitation and restraint 3. The more recent jurisprudence: a qualitative leap? 4. Background and context of the Court’s human rights case law 5. Prospects for the future 6. A proper role for the Court 14. The International Court of Justice and the Rights of Peoples and Minorities Gentian Zyberi 1. Introduction 2. International protection of the rights of minorities through the Permanent Court 3. The rights of peoples through the lens of the ICJ 4. Concluding remarks 15. The International Court of Justice and International Environmental Law Malgosia Fitzmaurice 1. Introduction 2. Formulating basic concepts: Corfu Channel, Barcelona Traction 3. Initial caution: Nuclear Tests I 4. Growing awareness, procedural strictures: Nauru, Nuclear Tests II 5. Mainstreaming international environmental law: Nuclear Weapons, Gabčíkovo-Nagymaros 6. Proceduralizing environmental law: Pulp Mills 7. The diversity of international environmental law: pending cases 8. The nature and relevance of the Court’s contribution

301 301 303 308 318 321 322 327 327 329 338 351 353 353 355 358 360 363 370 372 373


Contents

xi

VIII. CONCLUSION 16. The ICJ as a ‘Law-Formative Agency’: Summary and Synthesis Christian J Tams 1. Introduction 2. Taking stock 3. Explaining the Court’s impact on legal development 4. The Court’s contribution in perspective

377 377 388 395

Index

397

377


This page intentionally left blank


List of Abbreviations AB WTO AFDI ASR AT UNCnLOS BYIL CAT CERD CJEU CLJ CLP CoC CSM DLR DRC ECnHR ECOSOC ECSI ECtHR EIA EJIL FOA FRY FSIA GA GATT GA Res IACtHR ICCPR ICJ ICLQ ICRC ICSECR ICSID ICTR ICTY ILA ILC Ybk ILM ILO ILR IMO IRRC ITLOS LNTS

Appellate Body of the World Trade Organization Annuaire franรงais de droit international Articles on State Responsibility Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea British Yearbook of International Law Convention Against Torture Convention on the Elimination of Racial Discrimination Court of Justice of the European Union Cambridge Law Journal Current Legal Problems Court of Cassation Convention on Special Missions Dominion Law Reports (Canada) Democratic Republic of Congo European Commission of Human Rights UN Economic and Social Council European Convention on State Immunity European Court of Human Rights environmental impact assessment European Journal of International Law Food and Agriculture Organization Federal Republic of Yugoslavia Foreign Sovereign Immunities Act United Nations General Assembly General Agreement on Tariffs and Trade General Assembly Resolution Inter-American Court of Human Rights International Covenant on Civil and Political Rights International Court of Justice International and Comparative Law Quarterly International Committee for the Red Cross International Covenant on Social, Economic and Cultural Rights International Centre for the Settlement of Investment Disputes International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Law Association Yearbook of the International Law Commission International Legal Materials International Labour Organisation International Law Reports International Maritime Organization International Review of the Red Cross International Tribunal for the Law of the Sea League of Nations Treaty Series


xiv LOSC MEA PCA PCIJ RIAA SC SC Res SFRY SIA UNCnLOS UNCSI UNHRC UNTS VCDR VCLT VCRS VCSST WTO

List of Abbreviations United Nations Convention on the Law of the Sea multilateral environmental agreement Permanent Court of Arbitration Permanent Court of International Justice Reports of International Arbitral Awards United Nations Security Council Security Council Resolution Socialist Federal Republic of Yugoslavia State Immunity Act (UK) United Nations Convention on the Law of the Sea United Nations Convention on Jurisdictional Immunities of States and Their Property United Nations Human Rights Committee United Nations Treaty Series Vienna Convention on Diplomatic Relations Vienna Convention on the Law of Treaties Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character Vienna Convention on the Succession of States in respect of Treaties World Trade Organization


List of Contributors Sir Franklin Berman KCMG QC is a barrister and international arbitrator, and Visiting Professor of International Law in the Universities of Oxford and Cape Town. Between 1991 and 1999 he was the Legal Adviser to the Foreign & Commonwealth Office, and served as UK Agent in various proceedings before the International Court of Justice. He is a former Judge ad hoc on the Court, a member of the Permanent Court of Arbitration, and on the list of Arbitrators under the Washington Convention on the Settlement of International Investment Disputes. James Crawford AC SC is Whewell Professor of International Law, a Fellow of Jesus College, Cambridge, and a member of the Australian and English bars. He is also a Research Professor of Law at Latrobe University, Victoria. In addition to scholarly work on statehood, collective rights, investment law and international responsibility, he has appeared frequently before the International Court of Justice and other international tribunals, and is engaged as expert, counsel and arbitrator in international arbitration. From 1992–2001 he was a member of the International Law Commission. Malgosia Fitzmaurice holds a Chair of Public International Law at Queen Mary, University of London. She specializes in the law of treaties, international environmental law and the law relating to indigenous peoples, on which subjects she has published extensively. She is also Editor-in-Chief of the International Community Law Review. She has been invited to teach at many universities, such as Sorbonne-Pantheon and Berkeley Law School. Vera Gowlland-Debbas is Emeritus Professor of Public International Law, Graduate Institute of International and Development Studies, Geneva, and Visiting Professor at University College London (UCL). She has also taught at UC Berkeley and Université Paris II among others, and been a Visiting Fellow at All Souls College, Oxford. Her publications cover fields such as UN sanctions, treaty law, and international responsibility. Her latest work is The Security Council and Issues of Responsibility under International Law (Hague Academy Recueil des Cours, 2011). She acted as Counsel for the Arab League in the ICJ Wall Advisory Opinion, currently counsels governments and international organizations, and is an Academic Member of Doughty Street Chambers. Christine Gray is a Professor of International Law at the University of Cambridge, and a Fellow of St John’s College. She specializes in the law on the use of force. Her main work in this area is International Law and the Use of Force (Oxford: OUP, 3rd edition 2008). She also works on the peaceful settlement of disputes and on judicial remedies in international law. Gleider I Hernández is Lecturer in Law at the University of Durham. Previously, he was Associate Legal Officer at the International Court of Justice (2007–2010), serving from 2008–2010 as Law Clerk to Vice-President Peter Tomka and Judge Bruno Simma. He holds a DPhil from Wadham College, Oxford, an LLM (Hons) from Leiden University, and BCL and LLB degrees from McGill University. His first monograph, The International Court of Justice and the Judicial Function, is forthcoming from Oxford University Press. Prior to his academic career, he practised as a barrister and solicitor at the law offices of Fasken Martineau DuMoulin LLP.


xvi

List of Contributors

Claus Kreß is a Professor of International Law and Criminal Law. He holds the Chair for German and International Criminal Law and he is the Director of the Institute of International Peace and Security Law at the University of Cologne. In addition to scholarly work on the law on the use of force, the law of armed conflicts and international criminal law, he has been representing Germany in the negotiations regarding the International Criminal Court since 1998. He is Life Member of Clare Hall College at the University of Cambridge and a Member of the North Rhine-Westphalian Academy of Sciences, Humanities and the Arts. Vaughan Lowe QC is Emeritus Professor of International Law, an Emeritus Fellow of All Souls College, Oxford University, and a Bencher of Gray’s Inn. He practises as a barrister and arbitrator from Essex Court Chambers, London. He has acted as arbitrator and as counsel in cases before the ICJ, the ITLOS and other international tribunals, including in cases concerning the Law of the Sea. Roger O’Keefe is University Senior Lecturer in Law and Deputy Director of the Lauterpacht Centre for International Law at the University of Cambridge; Fellow of Magdalene College, Cambridge; and Visiting Professor at the Department of Legal Studies, Central European University, Budapest. He is the co-editor, with Christian J Tams, of The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (Oxford: OUP, 2013). Kate Parlett is an associate at Freshfields Bruckhaus Deringer LLP, based in the Paris office. She specializes in public international law and arbitration and has appeared before international arbitral tribunals and the International Court of Justice. She holds a PhD and LLM in public international law from the University of Cambridge. Her doctoral thesis was published under the title The Individual in the International Legal System. Her research interests include the law of international responsibility, state immunity, and questions of structural change in the international legal system. Before joining Freshfields, Kate was a research fellow at the Lauterpacht Centre for International Law at the University of Cambridge. Malcolm N Shaw QC is Senior Fellow at the Lauterpacht Centre for International Law, University of Cambridge, and Research Professor at the University of Leicester. He is also a Trustee of the British Institute of International and Comparative Law and a practising barrister at Essex Court Chambers, London. He is the author of inter alia Title to Territory in Africa (Oxford: OUP, 1986) and International Law (Cambridge: CUP, 6th edition 2008). Bruno Simma is a Judge at the Iran-US Claims Tribunal in The Hague, a Professor (retired) at the University of Munich and a Professor of Law at the University of Michigan in Ann Arbor (on leave during his tenure at the Iran-US Claims Tribunal). Between 2003 and 2012, he was a Judge at the International Court of Justice in The Hague. His scholarly work notably explores the role of human rights in international law, the law of state responsibility, and the law of treaties. He is the author, with Alfred von Verdross, of Universelles Völkerrecht (Duncker und Humblot, 3rd edition 1984), and an editor of The Charter of the United Nations—A Commentary (Oxford: OUP, 3rd edition 2012). James Sloan is a Senior Lecturer in International Law at the University of Glasgow, School of Law, where he specializes in the Law of the United Nations, International Human Rights Law and International Criminal Law. He is also Visiting Professor at the University of California, Hastings College of the Law. Prior to joining the School of Law, he worked for the United Nations in different capacities. His monograph The Militarisation of Peacekeep-


List of Contributors

xvii

ing in the Twenty-First Century was published by Hart in 2011. He has advised a number of intergovernmental and non-governmental organizations on international legal matters. He has been admitted to the Bars of New York and Ontario. Christian J Tams is Professor of International Law at the University of Glasgow, where he directs the Law School’s LLM in international law. He is a member of the Royal Society of Edinburgh Young Academy of Scotland, of the ILA Committee on the Use of Force and of the German Court of Arbitration for Sport, and he sits on the scientific advisory board of the European Journal of International Law. His recent publications include (as co-editor) The Statute of the International Court of Justice—A Commentary (Oxford: OUP, 2nd edition 2012) and Legacies of the Permanent Court of International Justice (Leiden: Brill/Nijhoff, 2013). In addition to his academic work, he has advised states in proceedings before the International Court of Justice and the International Tribunal for the Law of the Sea. Antonios Tzanakopoulos is a University Lecturer in Public International Law at the University of Oxford and a Fellow of St Anne’s College, as well as a Lecturer in Public International Law at the University of Glasgow. His research focuses on the responsibility of states and international organizations, the relationship between international and domestic law, and the law of dispute settlement. His book Disobeying the Security Council was published by Oxford University Press in 2011. In addition to his scholarly work, he is Associate Editor for the Oxford Reports on International Law in Domestic Courts, CoRapporteur of the ILA Study Group on Principles on the Application of International Law by Domestic Courts, and an advocate with the Athens Bar in Greece. Andreas Zimmermann is Professor of International Law at the University of Potsdam and Director of its Centre of Human Rights. He holds a Dr. jur. from the University of Heidelberg and an LLM from Harvard Law School. He has been an adviser to the German delegation to the United Nations Diplomatic Conference on the Establishment of an International Criminal Court and is a member of the Permanent Court of Arbitration. He has acted as counsel in proceedings before the ICJ and as judge ad hoc in various cases before the European Court of Human Rights. He is arbitrator under the annex to the Vienna Convention on the Law of Treaties and member of the advisory boards on United Nations issues and on public international law of the German Ministry of Foreign Affairs, where he also teaches international law to German diplomats. He is inter alia co-editor of The Statute of the International Court of Justice—A Commentary (Oxford: OUP, 2nd edition 2012). Gentian Zyberi is Associate Professor of International Law at the Norwegian Centre for Human Rights, University of Oslo, Norway. Over the last ten years he has researched and published, and prepared and taught courses on international human rights, humanitarian law, international criminal law and public international law at different universities in the Netherlands, the United States, China, and Albania. From November 2004 to November 2012 he provided legal assistance to defence teams in the Limaj et al. and the Haradinaj et al. cases tried before the International Criminal Tribunal for the former Yugoslavia. Throughout 2009 he acted as legal advisor and coordinator of the Albanian legal team in the Kosovo case before the International Court of Justice. His current research focuses on issues related to transitional justice, responsibility to protect, and the contribution of international courts and tribunals to interpreting and developing international human rights and humanitarian law.


This page intentionally left blank


Table of Cases ICJ Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403 . . . . . 16, 17–8, 41, 42, 162, 173–4, 199, 217–8, 226–232, 247, 248, 306, 342 Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Order) [2008] ICJ Rep 410 . . . 338 Admissibility of Hearings by the Committee of South West Africa (Advisory Opinion) [1956] ICJ Rep 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 219, 305–6, Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3. . . . . . . . . . 29, 30, 38, 58, 157, 166, 225 Aerial Herbicide Spraying (Ecuador v Columbia) (<http://www.icj-cij.org/docket/ index.php?p1=3&p2=1&code=ecol&case=138&k=ee> (accessed 17 May 2013)) [for information] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 372–3 Aerial Incident of 10 August 1999 (Pakistan v India) (Jurisdiction) [2000] ICJ Rep 12 . . . . 237 Aerial Incident of 3 July (Iran v USA) Order of 9 April 1998 . . . . . . . . . . . . . . . . 238 Ahmadou Sadio Diallo (Guinea v DRC) (Compensation) Judgment of 19 June 2012 (<http://www.icj-cij.org/docket/files/103/17044.pdf> (accessed 17 May 2013)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 311–2 Ahmadou Sadio Diallo (Guinea v DRC) (Merits) [2010] ICJ Rep 639 . . . . . . . 99, 101, 102, 106, 307–8, 310–2, 319, 322, 324–5, 386 Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections) [2007] ICJ Rep 582 . . . . 32, 75, 93, 94, 99, 101, 104, 106, 311–2 Anglo-Iranian Oil Company (UK v Iran) (Preliminary Objections) [1952] ICJ Rep 89 . . . . . 32 Anglo-Norwegian Fisheries (UK v Norway) [1951] ICJ Rep 116 . . . . . . . . . 19, 21, 168, 190 Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan) [1972] ICJ Rep 46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) [1989] ICJ Rep 177 . . . . . . . . 107, 205, 305 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 12. . . . . . 199, 202, 220 Application for Review of Judgment No 158 of the United Nations Administrative Tribunal (Advisory Opinion) [1973] ICJ Rep 166 . . . . . . . . . . . . . . . . . . . . . . 17, 203 Application for Review of Judgment No 273 of the United Nations Administrative Tribunal (Advisory Opinion) [1982] ICJ Rep 325 . . . . . . . . . . . . . . . . . . . . . . 17, 207 Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) Preliminary Objections (Yugoslavia v Bosnia and Herzegovina) [2003] ICJ Rep 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Preliminary Objections) [2008] ICJ Rep 412 . . . . . . . . . . 26, 57, 310, 318, 383 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43 . . . . . 57, 60, 72, 78, 84–5, 207, 239, 264, 267, 275, 310, 318, 324–5, 328, 345–8, 386–7


xx

Table of Cases

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595 . . . . 44, 45, 56, 60–6 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Further Provisional Measures) [1993] ICJ Rep 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 225 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Provisional Measures) [1993] ICJ Rep 3. . . . 56, 64 Application of the Interim Accord of 13 September 1995 (Macedonia v Greece) Judgment of 5 December 2011 (<http://www.icj-cij.org/docket/files/142/16827.pdf> (accessed 17 May 2013)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia) (Preliminary Objections) Judgment of 1 April 2011 (<http://www.icj-cij.org/docket/files/140/16398.pdf> (accessed 17 May 2013)) . . . 14, 61, 63, 237, 312, 319, 324–5, 339, 349 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia) (Provisional Measures) [2008] ICJ Rep 353 . . . . . . . . . 48, 55, 61, 63, 324–5, 349 Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168 . . . . . . . . . . . . . . . . 48, 72, 172, 237, 239, 241–4, 246, 248–9, 251–2, 255–7, 259–61, 264, 310, 321, 342–3, 386 Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda) ( Jurisdiction and Admissibility) [2006] ICJ Rep 6 . . . 14, 31, 34, 43–4, 143, 237, 309, 328 Arrest Warrant of 11 April 2000 (DRC v Belgium) [2002] ICJ Rep 3 . . . . . . .79, 93, 108–9, 111, 115–31, 143, 147, 264, 278, 282, 297, 315, 325, 385, 387 Asylum (Colombia v Peru) [1950] ICJ Rep 266 . . . . . . . . . . . . . . . . . . . . . . 152–3 Avena and Other Mexican Nationals (Mexico v USA) [2004] ICJ Rep 12 . . . . . . 93, 304–5, 307–8, 324 Barcelona Traction, Light, and Power Company, Limited (Belgium v Spain) (Second Phase) (Merits) [1970] ICJ Rep 3 . . . . . . . .5, 14, 32, 34, 75, 77, 87, 93, 95, 99, 100, 102–4, 106, 266, 281, 304, 343–4, 355, 357–8, 373, 389 Border and Transborder Armed Actions (Nicaragua v Honduras) [1988] ICJ Rep 95 . . . . . 228 Border and Transborder Armed Actions (Nicaragua v Honduras) (Order) [1992] ICJ Rep 222. 237 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (<http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=crn&case=150&k=ec> (accessed 17 May 2013)) [for information] . . . . . . . . . . . . . . . . . . . . . . . 238 Certain Criminal Proceedings in France (Republic of the Congo v France) (Removal from List) [2010] ICJ Rep 635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 Certain Criminal Proceedings in France (Republic of the Congo v France) (Provisional Measures) [2003] ICJ Rep 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108, 315 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151. . . . . . . . . . . . . . . 16, 36, 39, 41, 198–9, 202, 210, 214–6, 219–21, 223, 225, 229–30 Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 361, 363, 373 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ Rep 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) [1950] ICJ Rep 4 . . . . . . . . . . . . . . . . .40, 209–10, 212, 214 Conditions for Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1947] ICJ Rep 57 . . . . . 201, 208–9, 212, 221–3, 230, 385 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 171 . . . . . . . . . . . . . . . . . 224


Table of Cases

xxi

Construction of a Road in Costa Rica along the River San Juan (Nicaragua v Costa Rica) <http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=ncr2&case=152&k=7f> (accessed 17 May 2013) [for information] . . . . . . . . . . . . . . . . . . . . . . . 372 Continental Shelf (Libya/Malta) [1985] ICJ Rep 13 . . . . . . . . . . . . . . . . . . . . . 189 Continental Shelf (Tunisia v Libya) (Application by Malta for Permission to Intervene) [1981] ICJ Rep 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Continental Shelf (Tunisia/Libya) [1982] ICJ Rep 18 . . . . . . . . . . . . . . . 4, 165, 189–90 Corfu Channel (UK v Albania) (Expert Opinion: Order) [1948] ICJ Rep 124 . . . . . . . . . 73 Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4. . . . . . . . . 10, 26, 71, 73–4, 177, 191–2, 237–42, 244, 246–7, 249, 260–1, 263–6, 286, 304, 355–60, 365, 373 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/USA) [1984] ICJ Rep 246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 179, 185 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62 . . . . . . . . 31, 107, 198, 202, 205, 221, 305 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) [2009] ICJ Rep 213 . . . . . . . . . . . . . . . . . . . . . . . . 37, 153, 166, 175–6, 323, 370 East Timor (Portugal v Australia) [1995] ICJ Rep 90 . . . . . . . . . . . 79, 162, 306, 341, 343 Effect of Awards of Compensation made by the United Nations Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47 . . . . . . . . . . . . . . . . . 41, 202–3, 210–12 Elettronica Sicula SpA (ELSI) (US v Italy) [1989] ICJ Rep 15 . . . . . . . . . . . 32, 93, 102–3 Fisheries Jurisdiction (Germany v Iceland) (Merits) [1974] ICJ Rep 175 . . . 13, 72, 82, 190, 380 Fisheries Jurisdiction (Spain v Canada) [1998] ICJ Rep 432 . . . . . . . . . . . . . . . 93, 190 Fisheries Jurisdiction (UK v Iceland) (Merits) [1974] ICJ Rep 3 . . . 13, 26, 82, 190–1, 238, 380 Frontier Dispute (Benin/Niger) [2005] ICJ Rep 90 . . . . . . . . . . . . . . . . . . . . . 170 Frontier Dispute (Burkina Faso/Mali) [1986] ICJ Rep 554 . . 154, 155, 163–5, 169–70, 173, 385 Frontier Dispute (Burkina Faso/Niger) Judgment of 16 April 2013 (http://www.icj-cij.org/ docket/index.php?p1=3&p2=3&code=bfn&case=149&k=f 9 (Accessed 17 May 2013)). . 163 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7. . . . . 37–9, 48, 50–1, 60, 63, 72, 77, 79, 81, 207, 366–7, 383 Interhandel (Switzerland v USA) (Preliminary Objections) [1959] ICJ Rep 6 . . . . . . . . . 93–4 International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128 . . . . . . 16, 26, 202, 218–21, 230, 305–6, 340, 351 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase) (Advisory Opinion) [1950] ICJ Rep 65 . . . . . . . . . . . . . . . . . . 197–8, 219, 305 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase) (Advisory Opinion) [1950] ICJ Rep 221 . . . . . . . . . . . . . . . . . . . . . . . 4, 305 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73 . . . . . . . . . . . . . . . . . . . . . . . . . 31, 202, 206 Jurisdictional Immunities of the State (Germany v Italy) (Application by Greece for Permission to Intervene) Order of 4 July 2011 (<http://www.icj-cij.org/docket/files/143/16556.pdf> (accessed 17 May 2013)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 Jurisdictional Immunities of the State (Germany v Italy) Order of 6 July 2010 (<www.icj-cij.org/ docket/files/143/16027.pdf> (accessed 17 May 2013)) . . . . . . . . . . . . . . . 315, 316 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) Judgment of 3 February 2012 (<www.icj-cij.org/docket/files/143/16883.pdf> (accessed on 17 May 2013)) . . . . . . . . . . . . . . . .28, 55, 79, 108, 264, 267, 277–8, 315–7, 385 Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep 1045 . . . . 38, 167, 175, 369, 385 LaGrand (Germany v USA) (Provisional Measures) [1999] ICJ Rep 9 . . . . . . . . . . . . . 30 LaGrand (Germany v USA) [2001] ICJ Rep 466 . . . . . . . 82, 93, 303, 305, 307–8, 324, 385


xxii

Table of Cases

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) [2002] ICJ Rep 303 . . . . . . . . . . 33, 72, 82, 155, 157, 159–60, 166–7, 170–71, 173–5, 189, 237, 254 Land, Island and Maritime Frontier (El Salvador/Honduras: Nicaragua Intervening) [1992] ICJ Rep 351 . . . . . . . . . . . . . . . . . . . . . . . . . 154, 163, 164, 166, 170, 173 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 27, 28, 36–7, 39, 41–2, 46, 161, 199, 201–2, 215, 217, 222, 224, 306, 327, 229–32, 340, 348–9, 351, 385 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136. . . . . . . . . . . 16–8, 28, 33, 34, 41, 42, 47, 48, 74, 82, 84, 162, 199, 202, 214, 215–16, 220, 221, 238, 246, 251, 259–61, 263, 266–72, 276–8, 280–2, 287–8, 290–2, 295–7, 306, 309, 319, 322, 324–5, 340–2, 379, 386 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Order) [2003] ICJ Rep 428. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 338 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 . . . 4, 16, 18, 26, 34, 40, 47, 49, 51, 199, 206, 217, 219, 220, 238, 243, 250, 251, 254–8, 261, 263–70, 273–4, 276, 279–86, 288–9, 292–5, 308, 325, 346, 364–7, 370, 373, 380, 388 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66. . . . . . . . . . . . . . . . . . . . . . . . . 36, 40, 42, 206, 364, 370, 373 Legality of Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections) [2004] ICJ Rep 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 328 Legality of Use of Force (Serbia and Montenegro v Netherlands) (Preliminary Objections) [2004] ICJ Rep 1011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Legality of Use of Force (Yugoslavia v Netherlands) (Provisional Measures) [1999] ICJ Rep 761 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 237 Legality of Use of Force (Yugoslavia v Spain) (Provisional Measures) [1999] ICJ Rep 542 . . . 43, 237, 309 Legality of Use of Force (Yugoslavia v USA) (Provisional Measures) [1999] ICJ Rep 916 . . . 43, 237, 309 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Merits) [2001] ICJ Rep 40 . . . . . . . . . . . . . . . . . . . . . . . . . 153, 169, 189 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) ( Jurisdiction and Admissibility) [1994] ICJ Rep 112 . . . . . . . . . . . . . . 29–30, 189 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 189 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14 . . . . . . . . 49, 77, 85, 237, 241–261, 263–268, 271, 275, 279, 282, 284–6, 289, 295, 305, 379, 386, 394 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Jurisdiction and Admissibility) [1984] ICJ Rep 392 . . . . . . . . . . . . . . . 10, 45, 225, 241–243, Minquiers and Ecrehos (France v UK) [1953] ICJ Rep 47 . . . . . . . . . . . . . . .157, 168–9 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands) [1969] ICJ Rep 3 . . 5, 19, 21, 49, 180, 189, 371 Nottebohm (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4 . . . . . . . 93, 97–99 Nuclear Tests (Australia v France) [1974] ICJ Rep 253 . . . . . . . . 31, 358–60, 362, 364, 370 Nuclear Tests (Australia v France) (Interim Protection) [1973] ICJ Rep 99 . . . . . . . . . . 359 Nuclear Tests (Australia v France; New Zealand v France) (Application by Fiji for Permission to Intervene) [1973] ICJ Rep 535 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Nuclear Tests (New Zealand v France) (Interim Protection) [1973] ICJ Rep 135 . . . . . . . 359


Table of Cases

xxiii

Nuclear Tests (New Zealand v France) [1974] ICJ Rep 457 . . . . . 31, 358–60, 362, 364–5, 370 Oil Platforms (Iran v USA) [2003] ICJ Rep 161 . . . . . . . . 49, 93, 237–8, 240, 242–3, 246, 251, 253–7, 261 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Provisional Measures) [2007] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371 Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14 . . . . . . . 370, 371 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v UK ) (Order of 10 September 2003) . . . . . . 12, 202 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v UK ) (Preliminary Objections) [1998] ICJ Rep 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15, 202, 227–8 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v USA) (Provisional Measures) [1992] ICJ Rep 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 45, 225–8 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Ariel Incident at Lockerbie (Libya v UK) (Provisional Measures) [1992] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 45, 225–8 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) Judgment of 20 July 2012 (<http://www.icj-cij.org/docket/files/144/17064.pdf> (accessed 17 May 2013)) . . . . . . . . . . . . . . . . . 264, 290, 308, 313–4, 320, 324 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 . . . . . . . . . . . . . . . . . . 16, 19, 31, 40–1, 73, 199, 202–6, 210–11, 215, 219–20 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case [1995] ICJ Rep 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360–3, 370, 373 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v USA) (Merits) [2009] ICJ Rep 3. . . . . . . . . 82 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15 . . . . . . . . . 5, 19–20, 36, 41, 43, 220, 265–6, 305, 324, 344–5, 379, 386 Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Rep 6 . . . . . 156 Rights of Nationals of the United States of America in Morocco (France v USA) [1952] ICJ Rep 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 South West Africa (Ethiopia and Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 29, 36 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJ Rep 6. . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 26, 38, 306, 344 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) [2008] ICJ Rep 12 . . . . . . . . . . . . . . . . . 153, 154, 168–71 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) [2002] ICJ Rep 625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168–170 Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep 6 . . . 156, 163, 165–6 Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections) [1961] ICJ Rep 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Territorial and Maritime Dispute (Nicaragua v Colombia) (Preliminary Objections) [2007] ICJ Rep 832 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Territorial and Maritime Dispute (Nicaragua v Colombia) Judgment of 19 November 2012 (<http://www.icj-cij.org/docket/files/124/17164.pdf> (assessed 17 May 2013)) . . . 164, 165, 168, 169, 237–8 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) [2007] ICJ Rep 659 . . . . . . . . . . . . . . . . 164, 169, 189 Territorial Dispute (Libya /Chad) [1994] ICJ Rep 6 . . . . . . . . 36, 156, 157, 166–7, 170, 385


xxiv

Table of Cases

Trial of Pakistani Prisoners of War (Pakistan v India) (Order) [1973] ICJ Rep 347 . . 58, 59, 295 United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . 47, 77, 93, 108, 225, 238, 304–5, 385–6 Vienna Convention on Consular Relations (Paraguay v USA) [1998] ICJ Rep 248 . . . . . . . 93 Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa (Advisory Opinion) [1955] ICJ Rep 67 . . . . . . . . . . . . . . . 16, 305–6 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 . . . . . . . . . 33, 153–5, 158–9, 161, 219, 306, 340–1 Whaling in Antarctic (Australia v Japan) (<http://www.icj-cij.org/docket/index.php?p1=3& p2=1&code=aj&case=148&k=64> (accessed 17 May 2013)) [for information] . . . . . . 373

PCIJ Access to German Minority Schools in Upper Silesia (1931) PCIJ Ser A/B No 40. . . . . . . 335 Advisory Opinion given by the Court on September 10th 1923 on certain questions relating to settlers of German origin in the territory ceded by Germany to Poland (1923) PCIJ Ser B No 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331, 333 Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University v Czechoslovakia) (1933) PCIJ Ser A/B No 61 . . . . . . . . . . 89, 92 Competence of the ILO to Regulate Incidentally the Personal Work of the Employer (Advisory Opinion) (1926) PCIJ Ser B No 13 . . . . . . . . . . . . . . . . . . . . . . 10, 80, 205 Customs Regime between Germany and Austria (1931) PCIJ Ser A/B No 41 . . . . . . . . . . 29 Eastern Greenland (1933) PCIJ Ser A/B No 53 . . . . . . . . . . . . . . . . . . . . . 157, 169 Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No 10. . . . . . . . . . . 331–2 Factory at Chorzów (Interpretation) (1927) PCIJ Ser A No. 13 . . . . . . . . . . . . . . . 390 Factory at Chorzów (Jurisdiction) (1927) PCIJ Ser A No 9 . . . . . . . . . . . . . . . . . . 72 Factory at Chorzów (Merits) (1928) PCIJ Ser A No 17 . . . . . . . . . . . . 72, 91–2, 378, 389 Free Zones of Upper Savoy and the District of Gex (1929) PCIJ Ser A No 22 . . . . . . . . . 10 Interpretation of the Statute of the Memel Territory (1932) PCIJ Ser A/B Nos 47 and 49 . . . . 78 Interpretation of the Treaty of Neuilly (1924) PCIJ Ser A No 4 . . . . . . . . . . . . . . . . 30 Jurisdiction of the Courts of Danzig (1928) PCIJ Ser B No 15. . . . . . . . . . . . . . . . . 72 Jurisdiction of the European Commission of the Danube (1927) PCIJ Ser B No 14 . . . . . . . 40 Mavrommatis Palestine Concessions, Judgment No 2 (1924) PCIJ Ser A No 2 . . . . . . . . 32, 47, 89–91, 94–5, 311–2, 319, 378, 385 Minority Schools in Albania (1935) PCIJ Ser A/B No 64 . . . . . . . . . . . . . 331–3, 335–6 Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4 . . . . . . . . . . 96–7, 158 Oscar Chinn (1934) PCIJ Ser A/B No 63 . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Panevezys-Saldutikis Railway (Estonia v Latvia) (1939) PCIJ Ser A/B No 76 . . . . . . . . . 90–1 Phosphates in Morocco (1938) PCIJ Ser A/B No 74 . . . . . . . . . . . . . . . . . . . . . 72 Railway Traffic between Lithuania and Poland (Advisory Opinion) (1931) PCIJ Ser A/B No 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371 Rights of Minorities in Upper Silesia (Minority Schools) (1928) PCIJ Ser A No 15 . . . . . . 335 Serbian Loans (1929) PCIJ Ser A No 20 . . . . . . . . . . . . . . . . . . . . . . . 32, 89–90 SS ‘Wimbledon’ (UK, France, Italy, Japan, Poland [Intervening] v Germany) (1923) PCIJ Ser A No 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 71–2, 78, 177 Status of Eastern Carelia (Advisory Opinion) (1923) PCIJ Ser B No 5 . . . . . . . . . . . 15, 17 Greco-Bulgarian ‘Communities’ (1930) PCIJ Ser B No 17. . . . . . . . . . . . . . .330, 334–5 The SS ‘Lotus’ (1927) PCIJ Ser A No 10 . . . . . . . . . . . . . . . . . . . . . . 184, 389–90 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (1932) PCIJ Ser A/B No 44 . . . . . . . . . . . . . . . . . . . . . . . . . 330


Table of Cases

xxv

OTHER A v Ministère public de la Confédération, B and C, dossier no. BB.2011.140, decision of 25 July 2012 (Swiss Fed Crim Ct). . . . . . . . . . . . . . . . . . . . 110, 119, 120, 130 Abbasi v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76 . . . . . 95 Administrative Decision No II (US/Germany) (1923) 7 RIAA 23 . . . . . . . . . . . . . . . 92 Administrative Decision No V (Germany/US) (1924) 7 RIAA 119 . . . . . . . . . . . . . . . 91 Affaire Campbell (UK/Portugal) (1931) 2 RIAA 1145 . . . . . . . . . . . . . . . . . . . . . 92 Affaire Chevreau (France/UK) (1931) 2 RIAA 1113 . . . . . . . . . . . . . . . . . . . . . . 92 Affaire de l’attaque de la caravane du maharao de Cutch (UK/Ethiopia) (1927) 2 RIAA 821 . . . 92 Affaire de l’île de Clipperton (Mexico v France) (1931) 2 RIAA 1105 . . . . . . . . . . . . 169 Affaire des Grisbadarna (Norway/Sweden) (1909) 11 RIAA 147 . . . . . . . . . . . . . 157, 165 Affaire du lac Lanoux (Spain v France) (1957) 12 RIAA 281 . . . . . . . . . . . . . . . . . 356 Aguilar-Amory and Royal Bank of Canada claims (UK v Costa Rica) (1923) 1 RIAA 369 . . . . 92 Al-Adsani v Kuwait (1996) 107 ILR 536 . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Al-Adsani v UK (2001) 123 ILR 24 . . . . . . . . . . . . . . . . . . . . . . . 112, 138, 142 Al-Adsani v UK (2001) 123 ILR 24 (ECtHR (GC)). . . . . . . . . . . . .112, 137–9, 142, 315 Aramco v Saudi Arabia (1958) 26 ILR 167 . . . . . . . . . . . . . . . . . . . . . . . . . 180 Arar v Syria (2005) 127 CRR 2d 252. . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Argentina v Amerada Hess Shipping Corp. 488 US 428 (1989) . . . . . . . . . . . . . . . 137 Argentina/Chile Award (La Laguna del Desierto) (1999) 113 ILR 1 . . . . . . . . . . . . . 167 Argentina/Chile Frontier Award (La Palena) (1966) 38 ILR 10. . . . . . . . . . . . . . . . 167 Austria v Italy (1961) 4 Ybk ECHR 138 (ECnHR) . . . . . . . . . . . . . . . . . . . . . . 39 BE Chattin (US) v Mexico (1928) 4 RIAA 282 . . . . . . . . . . . . . . . . . . . . . . . . 92 Beagle Channel (Argentina v Chile) (1977) 21 RIAA 52 . . . . . . . . . . . . 156, 163, 166–167 Beaumartin v France (1994) 19 EHRR 485 (ECtHR) . . . . . . . . . . . . . . . . . . . . . 96 Blunden v Australia ILDC 207 (AU 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 181 Bouzari v Iran (2002) 124 ILR 427. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Bouzari v Iran (2004) 128 ILR 586. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Camuzzi v Argentina I (Jurisdiction) (ICSID Case No. ARB/03/2) 11 May 2005 . . . . . . . 104 Cass. No. 09-14743 (La Réunion Aérienne v Libyan People’s Socialist Jamahiriya), 9 March 2011, Bull. civ., 2011, I, No. 247 . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Cass. No 47-504 (Grosz v Federal Republic of Germany) 3 January 2006 . . . . . . . . . . 137 Cass. No. 02-45961 (Bucheron v Federal Republic of Germany) 16 December 2003, Bull. civ., 2003, I, No. 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Cass. No. 03-41851 (Gimenez-Esposito v Federal Republic of Germany) 2 June 2004, Bull. civ., 2004, I, No. 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Castro, Audiencia Nacional (Plenary) 13 December 2007 (Spain) . . . . . . . . . . . . . . 122 CME v Czech Republic (Merits) 9 ICSID Rep 121 . . . . . . . . . . . . . . . . . . . . . 103 CMS v Argentina (Jurisdiction) (ICSID Case No ARB/01/8) 17 July 2003 . . . . . . . . . . 103 Coard et al v US Judgment of 29 September 1999 (IACtHR) . . . . . . . . . . . . . . . . . 49 Colombia-Venezuela Boundary Dispute (1922) 1 RIAA 223 . . . . . . . . . . . . . . . . . 163 Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union) 2009/1 (Order Removing from List) 16 December 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Constitutional Court of Slovenia AA, Up-13/99, 8 March 2001 . . . . . . . . . . . . . . . 133 DCR v FG Hemisphere Associates LLC (No. 1) (2011) 147 ILR 376 (CFA HKSAR). . . . . 112 Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland and the French Republic (1977) 28 RIAA 3. . . . . . . . . . . . . . 180 Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) (Judgment) 14 March 2012 . . . . . . . . . . . . . 180, 189 Dubai/Sharjah (1993) 91 ILR 543 . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 156


xxvi

Table of Cases

EC Measures concerning Meat and Meat Products (Hormones), AB WTO Report (16 January 1998) WT/DS26/AB/R . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 77) (Advisory Opinion) OC-2/82 of 24 September 1982, Ser A, No 2 (IACtHR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Emergia SA v Ministry of Economy and Finance and the National Customs Bureau ILDC 596 (PE 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Eritrea/Ethiopia (2002) 130 ILR 1 . . . . . . . . . . . . . . . . . . . . . . . 157, 166–7, 171 Eritrea/Ethiopia (2006) 45 ILM 430 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Eritrea/Yemen (Phase One: Territorial Sovereignty) (1999) 114 ILR 1 . . . . . 154, 157, 166, 168 Fang v Jiang (2006) 141 ILR 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Ferrini v Germany (2004) 128 ILR 658 . . . . . . . . . . . . . . . . . . . . . 140, 144, 146 FILT-CGIL Trento v US (2000) 128 ILR 644 . . . . . . . . . . . . . . . . . . . . . . . 133 Finnish Shipowners against Great Britain in respect of the use of certain Finnish vessels during the war (Finland/UK) (1934) 3 RIAA 1479 . . . . . . . . . . . . . . . . . . . . . . . 92 Fogarty v UK (2001) 123 ILR 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 FW Flack, on behalf of the estate of the Late DL Flack (UK) v Mexico (1929) 5 RIAA 61 . . . 91 Gaddafi (2001) 125 ILR 490 (Fr CoC) . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Germany v Autonomous Province of Voiotia ILDC 1815 (IT 2011) . . . . . . . . . . . . . 140 Germany v Mantelli ILDC 1037 (IT 2008). . . . . . . . . . . . . . . . . . . . . . . . . 140 Gorzelik et al. v Poland (Application no 44158/98) Judgment of 17 February 2004 (ECtHR (GC)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338 Greek Citizens v Germany (2006) 135 ILR 186. . . . . . . . . . . . . . . . . . . . . . . 137 Greek Citizens v Germany (Distomo Massacre Case) (2003) 129 ILR 556 . . . . . . . . 133, 137 Hashemi v Iran (2012) QCCA 1449 (Quebec C of A) . . . . . . . . . . . . . . . . . . . 132 Holland v Lampen-Wolfe (2000) 119 ILR 367 . . . . . . . . . . . . . . . . . . . . . . . 133 Iran v Hashemi (2012) QCCA 1449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Ireland v UK (1978) 2 EHRR 25 (ECtHR). . . . . . . . . . . . . . . . . . . . . . . . . . 39 Isayeva, Yusupova and Bazayeva v Russia (Application nos 57947/00, 57948/00 and 57949/00) Judgment of 24 February 2005 (ECtHR) . . . . . . . . . . . . . . . . . . . 48 Island of Palmas (Netherlands v US) (1928) 2 RIAA 829 . . . . . . 33, 37, 151–152, 155, 157, 159, 168–169 Italy v Djukanović ILDC 74 (IT 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Italy v Milde ILDC 1224 (IT 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (2006) 129 ILR 629 (UKHL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 130, 137, 146 Judgment n. 32139 of 30 May 2012, rendered 9 August 2012, Fr CoC (First Criminal Section) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Jurado v ILO (No 1) (1970) 40 ILR 296 . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Kadi v Council and Commission [2005] ECR II-3649 . . . . . . . . . . . . . . . . . . . . 46 Kalogeropoulou and Others v Greece and Germany (2002) 129 ILR 537 . . . . . . 112, 138, 142 Kate A. Hoff, Administratrix of the Estate of Samuel B. Allison, Deceased (US) v Mexico (1929) 4 RIAA 444. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Kennedy v Trinidad and Tobago (No 845/1999) (UN Doc CCPR/C/67/D/845/1999) (UNHRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Khurts Bat v Investigating Judge of the German Federal Court (2011) 147 ILR 633 . . . . . 119 Kircaoglu and Sanaga ILDC 1635 (IT 2010) . . . . . . . . . . . . . . . . . . . . . . . . 181 Kuwait Airways Corporation v Iraq and Bombardier Aerospace (2010) 147 ILR 303 (CanSC) . 113 Landreau claim (US/Peru) (1921) 1 RIAA 347 . . . . . . . . . . . . . . . . . . . . . . . . 92 Lauder v Czech Republic (Merits) 9 ICSID Rep 66 . . . . . . . . . . . . . . . . . . . . . 103 Letelier v Chile (1980) 63 ILR 378. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Littrell v US (No 2) (1995) 100 ILR 438 . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Loizidou v Turkey (Preliminary Objections) (1995) 102 ILR 662 ECtHR (GC) . . . . . . . . 44


Table of Cases

xxvii

Loizidou v Turkey (Merits) 40/1993/435/514 (28 November 1996) (ECtHR) . . . . . . . . . 49 Lozano ILDC 1085 (IT 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Mara’abe et al v The Prime Minister of Israel et al (Supreme Court Sitting as the High Court of Justice) [2005] HCJ 7957/04 (<http://elyon1.court.gov.il/Files_ENG/04/ 570/079/A14/04079570.A14.HTM> (accessed 17 May 2013)) . . . . . . . . . . . . . 292 Margellos v Germany (2002) 129 ILR 525 . . . . . . . . . . . . . . . . . . . . 133, 137, 140 Maria Guadalupe A Vve Markassuza, Sentence No 38 (unpublished), French-Mexican Claims Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Matthews v UK (1999) 28 EHRR 361 (ECtHR) . . . . . . . . . . . . . . . . . . . . . . . 39 McElhinney v Ireland (2001) 123 ILR 73 . . . . . . . . . . . . . . . . . . . . . . . 112, 134 McElhinney v Williams and Her Majesty’s Secretary of State for Northern Ireland (1995) 104 ILR 691 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133–134 Minnie Stevens Eschauzier (UK) v Mexico (1931) 5 RIAA 207 . . . . . . . . . . . . . . . . 91 Natoniewski v Germany (2010) 30 Polish YIL 299 . . . . . . . . . . . . . . . . . . . . . 137 NML Capital Limited v Argentina (2011) 147 ILR 575 (UKSC). . . . . . . . . . . . . . . 113 North American Dredging Company of Texas (US) v Mexico (1926) 4 RIAA 26 . . . . . . . . 93 Prefecture of Voiotia v Germany (Distomo Massacre Case) (2002) 129 ILR 513 . . . . . 132, 140 Presbyterian Church of Sudan et al v Talisman Energy, Inc 582 F 3d 244 (US Ct of Apps, 2nd Cir, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Princz v Germany 26 F.3d 1166 (DC Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . 137 Prosecutor v Akayesu ‘Judgment’ (Trial Chamber) (2 September 1998) ICTR-96-4-T (ICTR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Prosecutor v Delalić et al ‘Judgment’ (Appeals Chamber) (20 February 2001) Case IT-96-21 (ICTY) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Prosecutor v Dusko Tadić ‘Judgment’ (Appeal Chamber) (15 July 1999) IT-94-1-A (ICTY) . . . 85 Prosecutor v Dusko Tadić ‘Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction’ (Appeal Chamber) (2 October 1995) IT-94-1-AR72 (ICTY) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 282, 296–7 Prosecutor v Krstić ‘Judgment’ (Trial Chamber) (2 August 2001) IT-98-33-T (ICTY). . . . 345–6 Prosecutor v Kupreškić et al ‘Judgment’ (Trial Chamber) (14 January 2000) IT-95-16-T (ICTY) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Prosecutor v Popović et al ‘Judgment’ (Trial Chamber) (10 June 2010) IT-05-88-T (ICTY) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Prosecutor v TP ILDC 1498 (GR 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 118 R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 1) (1998) 119 ILR 50 (UKHL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) (1999) 119 ILR 135 (UKHL) . . . . . . . . . . . . . . . . . . . . . . . . 121, 130, 146 Rainbow Warrior (New Zealand/France) (1990) 20 RIAA 215 . . . . . . . . . . . . . . . 50 Rann of Kutch (India/Pakistan) (1968) 17 RIAA 1 . . . . . . . . . . . . . . . . 154, 163, 166 Re Barak City of Westminster Magistrates’ Court, 29 September 2009, unreported . . . . 119, 123 Re Bo Xilai (2005) 128 ILR 713 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 123 Re Gorbachev, City of Westminster Magistrates’ Court (D Wickham, Deputy Senior District Judge) 30 March 2011, unreported . . . . . . . . . . . . . . . . . . . . . . . 111, 123 Re Maritime Union of Australia ex p CSL Pacific Shipping Inc ILDC 204 (AU 2003) . . . . 181 Re Mofaz (2004) 128 ILR 709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 122 Re Sharon and Yaron (2003) 127 ILR 110 (Belg CoC) . . . . . . . . . . . . . . . . . 117, 122 Reference Re Secession of Quebec (1998) 161 DLR (4th) 385 . . . . . . . . . . . 162, 172–173 Republic of Austria and Others v Altmann (2004) 147 ILR 681 (USSC) . . . . . . . . . . . 112 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) 1 February 2011 . . . . . . . . . . . . . . . 180 Rwanda Audiencia Nacional (Central Examining Magistrate No 4) 6 February 2008 (Spain). . 122 Salem (Egypt/US) (1932) 2 RIAA 1163 . . . . . . . . . . . . . . . . . . . . . . . . . . . 92


xxviii

Table of Cases

Samantar v Yousuf (2010) 147 ILR 726 (USSC) . . . . . . . . . . . . . . . . . . . . . . 145 Schreiber v Canada (Attorney General) 2002 SCC 62 . . . . . . . . . . . . . . . . . . . . 132 Shufeldt claim (Guatemala/US) (1930) 2 RIAA 1079 . . . . . . . . . . . . . . . . . . . . . 92 Siderman de Blake v Argentina 965 F.2d 699 (9th Cir. 1992) . . . . . . . . . . . . . . . . 137 Siemens v Argentina (Jurisdiction) (ICSID Case No ARB/02/8) 3 August 2004. . . . . . . . 103 Smith v Libya 101 F.3d 239 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 137 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (2000) 39 ILM 1359 (AT UNCnLOS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 SS ‘I’m Alone’ (Canada/US) (1933 and 1935) 3 RIAA 1609 . . . . . . . . . . . . . . . . . 180 State of Missouri v Holland 252 US 416, 433 (1920) . . . . . . . . . . . . . . . . . . . . . 40 Sunbolf v Alford (1838) 3 M and W 218 . . . . . . . . . . . . . . . . . . . . . . . . . . 389 Thatchell v Mugabe (2004) 136 ILR 572 (Eng MagCt) . . . . . . . . . . . . . . . . . . . 122 The ‘Kronprins Gustaf Adolf ’ (Sweden/US) (1931) 2 RIAA 1239 . . . . . . . . . . . . . . . 92 The Death of James Pugh (UK/Panama) (1933) 3 RIAA 1439 . . . . . . . . . . . . . . . . . 92 The Hague City Party and others v Netherlands ILDC 849 (NL 2005). . . . . . . . . . . . 122 Total SA v Argentina (Preliminary Objections) (ICSID Case No ARB/04/01) 25 August 2006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Trail Smelter (US v Canada) (1938 and 1941) 3 RIAA 1905 . . . . . . . . . 356, 359–360, 373 United States: Import Prohibition of Certain Shrimp and Shrimp Products AB WTO Report (12 October 1998) WT/DS58/AB/R . . . . . . . . . . . . . . . . . . . . . . . . . . 42 US v Jho and Overseas Shipholding Group Inc 534 F 3d 398 (5th Cir 2008); ILDC 1068 (US 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Wijngaarde et al v Bouterse (2000) 3 YIHL 677 (District Court of Amsterdam, 20 November 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 128 Yousuf et al v Samantar United States Court of Appeals for the Fourth Circuit, Appeal No 11-1479, 2 November 2012. . . . . . . . . . . . . . . . . . . . . . . . . . 145–146 Yousuf et al v Samantar United States District Court for the Eastern District of Virginia, Civil Action No. 1:04 CV 1360 (LMB), Order (Leonie M Brinkema, District Judge), 15 February 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Yusuf & Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Zhang v Jiang (2008) 141 ILR 542. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Zhang v Jiang (2010) 148 ILR 555. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137


PART I PROLOGUE


This page intentionally left blank


1 General Introduction Christian J Tams and James Sloan

In his revised edition of The Development of International Law by the International Court, Sir Hersch Lauterpacht suggested that, while ‘it would be an exaggeration to assert that the Court has proved to be a significant instrument for maintaining international peace’, it had ‘made a tangible contribution to the development and clarification of the rules and principles of international law’.1 This, in fact, explained ‘the wide recognition of the achievement’ of the International Court of Justice (ICJ or ‘the Court’).2 In this respect, as in others, the revised edition developed views formulated in the 1934 ‘prequel’ on the role of the Permanent Court of International Justice (PCIJ), which—little more than a decade after the Court had begun to operate—had sought to systematize forms of what Lauterpacht did not hesitate to refer to as ‘judicial legislation’.3 The problem addressed in the following contributions may have become more pressing over time, but it has been there from the beginning. Lauterpacht’s perspective was a particular one, but not an isolated view. Discussing dispute resolution in his Theory and Reality, Charles de Visscher in fact seemed to go further, indicating that the ‘development of rules of international law’ was the ‘essential function’ of the International Court.4 And while many would take issue with the characterization of the role as ‘primary’, developments during the last fifty years would seem to confirm that decisions of international courts can become authoritative points of reference in the development of international law. ‘It does not accord with reality’—Mohamed Shahabuddeen writes in his Precedent in the World Court—‘to suggest that the Court may develop the law only in the limited sense of bringing out the true meaning of existing law in relation to particular facts’.5 Writing more recently, von Bogdandy and Venzke in fact consider the matter to be ‘beyond dispute’: ‘judicial lawmaking [whether by the ICJ or by other 1 H Lauterpacht, The Development of International Law by the International Court (London: Stevens & Sons, 1958) 4 and 5. 2 Lauterpacht (n 1). 3 H Lauterpacht, The Development of International Law by the Permanent Court of International Justice (London/New York/Toronto: Longmans Green and Co., 1934). 4 C de Visscher, Theory and Reality in Public International Law (translated by PE Corbett, Princeton: PUP, 1968) 390. 5 M Shahabuddeen, Precedent in the World Court (Cambridge: Grotius Publications, 1997) 68.


4

The Development of International Law by the ICJ

international judicial bodies] is not just a collateral side effect of adjudicatory practice.’6 These statements represent one strand of thinking about international courts and tribunals. Others have taken a more restrictive view of the international judicial function: one that emphasizes the dispute settlement dimension of adjudication and plays down its impact on the process of legal development (or treats it as a collateral side effect).7 In fact, the ICJ itself has—like other courts and tribunals— frequently emphasized that it had no power to ‘legislate’, doing so most clearly in the Nuclear Weapons opinion, where it restated the ‘orthodoxy’8 in the following terms: It is clear that the Court cannot legislate, and, in the circumstances of the present case, it is not called upon to do so. Rather its task is to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules applicable to the threat or use of nuclear weapons.9

Perhaps this was but another instance of ‘a lady that protests too much’;10 yet it is difficult to deny that the underlying concern not to be seen as a legislator has regularly made itself felt during the nine decades of ICJ and PCIJ jurisprudence.11 Perhaps, as one recent study suggests, international courts are at best ‘reluctant lawmakers’?12 International scholarship on these issues is rich and diverse, but quite unbalanced. As the preceding quotations suggest, the big conceptual debate on whether courts should, or could legitimately, ‘make law’ began early on, and has never really ebbed away. Amongst other things, commentators have approached it from the perspective of sources,13 of precedent (proper or persuasive),14 or of judicial activism;15 have sought to draw distinctions between (acceptable, unavoidable) 6 A von Bogdandy and I Venzke, ‘Beyond Dispute: International Judicial Institutions as Lawmakers’ (2011) 12 German LJ 979, 981. 7 As von Bogdandy and Venzke (n 6), observe, this is implicit in the typical structure of textbooks: ‘Many textbooks of international law present international courts and tribunals, usually towards the end of the book in the same chapter with mediation and good offices, simply as mechanisms to settle disputes’ (982). 8 A Boyle and C Chinkin, The Making of International Law (Oxford: OUP, 2007) 268. 9 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 237, para 18. 10 See Boyle and Chinkin (n 8) 268. 11 See also Dissenting Opinion of Judge Read, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase) [1950] ICJ Rep 221, 244; Dissenting Opinion of Judge Gros, Continental Shelf (Tunisia/Libya) [1982] ICJ Rep 18, 152. For many more references see Shahabuddeen (n 5) 67–96. 12 D Terris, CPR Romano, L Swigart, The International Judge (Oxford: OUP, 2007) 129. 13 See eg GJH van Hoof, Rethinking the Sources of International Law (Deventer: Kluwer, 1983) 169–76; Nawab, ‘Other Sources of International Law. Are Judicial Decisions of the International Court of Justice a Source of International Law?’ (1979) 19 Indian JIL 526. 14 V Roeben, ‘Le précédent dans la jurisprudence de la Cour internationale’ (1989) 32 German YIL 382; Shahabuddeen (n 5); RY Jennings, ‘The Judicial Function and the Rule of Law in International Relations’ in Le droit international à l’heure de sa codification; études en l’honneur de Roberto Ago (Milan: Giuffré, 1987) vol 3, 139. 15 F Zarbiyev, ‘Judicial Activism in International Law—A Conceptual Framework for Analysis’ [2012] 3 JIDS 247; Terris et al (n 12) 121 et seq.


General Introduction

5

legal development and (impermissible) law-making;16 and have sought to assess the legitimacy of court decisions as a form of international public authority.17 The conceptual aspect of the debate is clearly well-covered. At the other end of the spectrum, there is no shortage of specific case studies either: many have sought to trace how particular aspects of ICJ decisions—among them pronouncements on treaty reservations,18 on maritime delimitation,19 or on obligations erga omnes,20 to name just a few of the ‘usual suspects’—have shaped or modified specific aspects of international law.21 There is a rich body of ‘microhistory’ exploring the impact of particular ICJ pronouncements. The present book does not intend to duplicate the existing analysis. It seeks to chart, and occupy, the middle-ground between the conceptual and the specific. It comprises a series of ‘field studies’ that analyse the influence of ICJ decisions on broadly-defined areas of international law such as human rights law, state responsibility, the law of the sea, jurisdictional immunities, the law of treaties, etc. In none of these areas has the ICJ singlehandedly ‘made law’ for the international community (which is why the term ‘law-making’ is avoided22), but all of these have in some way been affected by its jurisprudence. The purpose of the subsequent chapters, and of the book as a whole, is to identify and evaluate the ICJ’s main contributions. The focus throughout is on the actual impact of the Court’s pronouncements; conceptual debates about whether the ICJ ‘should’ make law are not rehearsed in any detail. At the same time, the analysis moves beyond the level of micro-history: specific ICJ pronouncements are assessed, but the analysis proceeds from broadlydefined areas of international law and seeks to provide a general account of the ICJ’s influence on the development of those defined areas. 16 But cf A Pellet’s refreshingly clear perspective: ‘I would suggest that you will name “legislation” a legal reasoning you disapprove of but you will call that same reasoning “progressive development” when you favor it’: ‘Shaping the Future of International Law: The Role of the World Court in LawMaking’ in M Arsanjani et al (eds), Looking to the Future. Essays on International Law in Honor of W. Michael Reisman (The Hague: Martinus Nijhoff, 2010) 1065, 1075. 17 von Bogdandy and Venzke (n 6); A von Bogdandy and I Venzke, ‘On the Democratic Legitimation of International Judicial Lawmaking’ (2011) 12 German LJ 1341; as well as the contributions to A von Bogdandy et al (eds), The Exercise of Public Authority by International Institutions. Advancing International Institutional Law (Berlin/Heidelberg: Springer, 2010). 18 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15, 22–4. 19 See eg North Sea Continental Denmark; Germany/Denmark; Germany/Netherlands) [1969] ICJ Rep 3. 20 Barcelona Traction, Light, and Power Company, Limited (Belgium v Spain) (Second Phase) (Merits) [1970] ICJ Rep 3, 32–3, paras 33–4. 21 These and other ‘classics’ are discussed frequently: see eg Pellet in Essays Reisman (n 16); M Lachs, ‘Some Reflections on the Contribution of the International Court of Justice to the Development of International Law’ (1983) 10 Syracuse JICL 239; CJ Tams and A Tzanakopoulos, ‘Barcelona Traction at 40: The ICJ as an Agent of Legal Development’ (2011) 23(4) Leiden JIL 781. 22 In scholarship, the term ‘judicial law-making’ is used with some flexibility though: it is often employed in a more open way, denoting eg ‘the generation of legal normativity by international courts that creates, develops, or changes normative expectations’, mindful that in ‘generating normativity’, international courts and tribunals are not unconstrained: see von Bogdandy and Venzke (n 6) 988; and similarly Shahabuddeen (n 5) 67–96; Boyle and Chinkin (n 8) 263–312. Even that more flexible use of terminology however seems to suggest a leading role for the Court, which in our view underplays how much it acts within the established system of sources.


The Development of International Law by the ICJ

6

Because of this focus, we hope the book provides a nuanced assessment of the Court’s impact on contemporary international legal development: one that proceeds from the law in force in particular areas and that retraces the extent to which existing legal regimes have been shaped by ICJ decisions. As the areas under review are broad, the perspective chosen is typically fairly wide. But precisely for that reason, we believe the assessment can offer a detailed and balanced account of the ICJ’s relevance as (in the words of Sir Franklin Berman) an ‘agent of legal development’.23 Crucially, this account draws on a rich body of evidence. While not covering international law in its entirety, the inclusion of thirteen detailed field studies—addressing well-established areas of the discipline and grouped into six substantive parts for reasons of convenience—means that a ‘critical mass’ of information is ‘processed’. Taken together, the field studies not only present a comprehensive analysis of the Court’s impact, but allow us to address important questions that the academic debate, despite its breadth, has hardly begun to tackle. Do ICJ decisions affect particular areas of international law to a particular extent; and if so: which, and why? What is the Court’s relative influence on legal development, as compared to other law-development processes such as treatymaking, international practice, International Law Commission studies, etc? Is it possible to identify ‘factors of success’24 that explain why particular decisions have influenced legal development, whereas others have not? What are the techniques by which the Court contributes to the process of legal development? In raising and addressing these questions, we hope the book can contribute to a better understanding of the process of international legal development, and of the ICJ’s role in it.

23

See the title of Sir Franklin Berman’s contribution to this volume. See N Petersen, ‘Lawmaking by the International Court of Justice—Factors of Success’ (2011) 12 German LJ 1295. 24


2 The International Court of Justice as an ‘Agent’ of Legal Development?* Sir Franklin Berman KCMG QC

1. Introduction It is a privilege to have been asked to start off this thoroughly commendable collection of essays on so important a topic. My title is ‘The International Court of Justice as an “Agent” of Legal Development’—but followed by a big question mark. The question mark is not there as a token of scepticism. Its function is as an indicator that the title signifies a hypothesis, one to be examined and tested, but above all to be explained. As to the validity of the hypothesis itself, I have an open mind. Its importance, though, to an audience of lawyers can’t be questioned, since it sets so much of the framework for our expectations towards the International Court of Justice (ICJ, or ‘the Court’), and for how we assess the Court’s achievement. Statesmen, diplomats, and students of international relations (to the extent that this last group thinks about the subject at all, which one sometimes doubts) view the ICJ as an institution for settling disputes. Lawyers, on the other hand, are interested, as technicians, in structure, process, and procedure, and how these feed into good decision-making;1 but most of all, what the legal audience focuses on is the influence of the ICJ on the system of substantive law.2 And here I use ‘influence’ in its widest possible connotation, one which is not synonymous with ‘development’ because it goes wider still. In order to think about the Court as an agent of change or an agent of development, you have of course to think about both intention and effect: what was the institution intended to be and to do?, and what has actually happened? In

* This contribution is based on the first in a series of lectures on the Court’s influence on the development of international law. The author delivered the lecture at the University of Glasgow, 18 November 2009. 1 Two of the most substantial works on the World Court are in fact commentaries primarily on its procedure: see S Rosenne, The Law and Practice of the International Court 1920–2006 (Dordrecht: Martinus Nijhoff, 4th edn 2006); and A Zimmermann, C Tomuschat, K Oellers-Frahm and CJ Tams (eds), The Statute of the International Court of Justice: A Commentary (Oxford: OUP, 2nd edn 2012). 2 GG Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge: Grotius Publications, 1986), and, for the period until 2011, H Thirlway, The Law and Procedure of the International Court of Justice, Fifty Years of Jurisprudence (Oxford: OUP, 2013).


8

The Development of International Law by the ICJ

fact, as I see it, the investigation falls into three stages, not two; there is a middle stage between the intention and the effect, a middle stage of cardinal importance, namely what the Court itself has been doing in the exercise of the functions it was endowed with. In other words, the investigation requires one to look first at what the negotiators thought and expected they were doing in setting up a standing world court; then at what the Court has done, which means primarily the corpus of its published judgments and decisions; and only then at the effects on the legal landscape. Each of those three stages is a topic in its own right, and each of them will weave its fibres through the subsequent detailed contributions to the book. All I can hope to do is to set something of a framework. My illustrations will therefore be somewhat sparse, and designed chiefly to point up the themes rather than fill in their content. The meat will come in the contributions that follow.

2. Legislative intent Let me begin with a very general point, one that was already implicit in the use of the term ‘world court’. This is a term that was coined some years ago and helps to bring under one roof both the ICJ and its predecessor, the Permanent Court of International Justice (PCIJ).3 The justifications for doing so are well known: the seamless transition in time between the death of the old Court and the birth of the new; the fact that the Statutes of the two Courts are virtually identical as to their substantive content, and indeed the UN Charter says in terms that the ICJ’s Statute is ‘based on’ that of the PCIJ;4 the way in which the ICJ has from its inception regularly cited the judgments of the PCIJ on the same footing as its own;5 and the explicit transfer to the new Court of jurisdictional commitments undertaken by states in respect of the old Court both by statute6 and (as occasion has arisen) by express determination of the ICJ.7 What I would like to draw attention to in this discussion, however, as more pertinent still to my analysis, are two other elements of continuity that are not so frequently noted, namely: the famous Article 38 (laying down the sources of the law the World Court is to apply), and the 3 The term is used extensively in legal scholarship to cover both courts: see eg M Shahabuddeen, Precedent in the World Court (Cambridge: Grotius Publications, 1997); R Falk, Reviving the World Court (Charlottesville: UPV, 1986); E McWhinney, The World Court and the Contemporary International Law-Making Process (Alphen aan den Rijn: Sijthoff & Noordhoff, 1979). Google is certainly in no doubt as to what the term currently refers to. 4 Art 92 of the UN Charter. 5 From its very first judgment, in Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4, 24, the Court expressly referred to the views expressed by the PCIJ in Competence of the ILO to Regulate Incidentally the Personal Work of the Employer (Advisory Opinion) (1926) PCIJ Ser B No 13, 19, and in Free Zones of Upper Savoy and the District of Gex (1929) PCIJ Ser A No 22, 19, with regard to similar questions of interpretation. 6 The transitional clause in Art 37 of the ICJ Statute provides that whenever a convention or treaty provides for reference of a matter to the PCIJ, the matter shall be referred to the new Court. 7 See Military and Paramilitary Activities (Nicaragua v USA) ( Jurisdiction and Admissibility) [1984] ICJ Rep 392.


The ICJ as an ‘Agent’ of Legal Development?

9

institution of advisory opinions alongside contentious state-to-state proceedings. The first, Article 38, was taken over with only a minor, and largely inconsequential, change to the introductory phrase, following a conscious decision by the Washington Committee of Jurists not to undertake any revision of its substance.8 As regards the second, the advisory opinion procedure, the legislative pedigree is not quite so even,9 but all that matters for present purposes is that the system for requesting advisory opinions had already been introduced by the Covenant of the League of Nations, and its essential features have remained the same mutatis mutandis since then. The same continuity appears strongly in the contents of the Rules of the two Courts, and in a continuity of working method, notably in the ICJ’s deliberative process.10 These elements of continuity (there are others as well) are not singled out for their own sake, but to make the point that, if one begins as I have suggested by examining the legislative intent (what kind of institution the negotiators thought and expected they were setting up), then you have to go to 1920, not to 1945. Though there is—as one can see from Ole Spiermann’s Historical Introduction to the Commentary on the ICJ Statute11—a respectable argument for saying that there is in fact a continuous line of development starting earlier still, with the Hague Conventions and the Permanent Court of Arbitration (PCA) established under them. However that may be, the major step change introduced in 1920 with the creation of the PCIJ was the introduction of a standing tribunal of fixed composition, and its denomination moreover as a court.12 And then, at the second defining moment a quarter of a century later, when the question was how to design the architecture of the new and qualitatively different United Nations Organization, the conscious decision taken in the judicial field was in favour of continuity— a continuity so strong as to amount to virtual identity. Continuity, not reform. The only substantial change was in fact the organic link forged with the new international organization, embodied in Chapter XIV of the Charter, with its opening salvo that the ICJ was to be the ‘principal judicial organ’ of the new organization, and in consequence that the ICJ Statute was to be an ‘integral part of ’ the UN

8 The Informal Inter-Allied Committee thought that Art 38 had ‘worked well in practice and its retention is recommended’ (UNCIO records, vol XIV, 435). The change is the reference to the mission of the Court, ‘whose function is to decide in accordance with international law such disputes as are submitted to it’, in its opening paragraph (see UNCIO, vol XIII, 284, 392). 9 The original Statute of the Permanent Court did not expressly provide for the giving of advisory opinions, the prevailing view being that Art 14 of the Covenant of the League of Nations did not require more than details of procedure to become operative: see Documents concerning the Action taken by the Council of the League of Nations under Article 14 of the Covenant (1921), 211. In 1929, when the PCIJ Statute was revised, Arts 72–4 of the Court’s Rules, on the giving of advisory opinions, were introduced into the Statute as Arts 65–7. These Articles were modified in the ICJ Statute, in order to accommodate the Court’s organic connection to the United Nations, and to reflect the wording of the Charter better. 10 Though equally recent years have seen some useful development in these fields. 11 Zimmermann et al (n 1) 41–3. 12 MO Hudson, The Permanent Court of International Justice, 1920–1942 (New York: Macmillan, 1943) 103, describes how the very name ‘Permanent Court’ was a point of controversy. The PCA was, of course, a ‘Court’ of a wholly different kind.


10

The Development of International Law by the ICJ

Charter, and thus amendable only by the same process as the Charter.13 Quite how to assess the consequences of the ‘organic’14 link (of the Court being now the ‘principal judicial organ’) has become one of those perennial conundrums to which it always seems too early to hazard an answer.15 But the organic legal bond between the Statute and the Charter has had the clear and demonstrable effect of making the ICJ Statute for all practical purposes unamendable, and the Court itself has never made use of the power of initiative granted to it under Article 70 of the Statute (the unedifying little spat in the 1960s over its working conditions in The Hague serving as the sole exception).16 All of the above combines to establish that the ‘founding intent’ remains intact, namely to have an institution of the same essential kind as the one first conceived in 1920. Moreover, had one posed the central question to those who took the decisions in 1920, I don’t think it requires any demonstration that the same answer would have come from the lawyers who proposed as from the diplomats and politicians who pronounced. To go back to the alternative views I sketched out earlier, this was to be an institution for settling disputes, and by doing so it was to contribute to world peace. Any development of the substantive system of law would follow as a by-product of that process, but not as an essential aim in its own right, although there are traces of a contrary view17 in the early days of the PCIJ.

3. The World Court’s approach With that as background, let us move on to the second part of the analysis, a much more difficult one, namely to assess what the ICJ has actually done in fulfilment of its mandate. Or, to put the question another way, how the Court could be said, overall, to have approached its function, bearing in mind as we do that the ICJ, like all courts, is a reactive organ; it has no programme of its own, but exists to handle such cases as the chance winds of external happenings blow before it. To do so, as indicated, is not easy. It entails forming some sort of overview of what is by now a very substantial corpus of judicial practice. It entails keeping one’s eye fixed as firmly as possible on the centre ground, and avoiding being unduly influenced by the strong profile of individual judges who might be most vocal (in a written sense!) both on the Bench and extra-judicially; not being uninfluenced by them, but not being unduly influenced.18 It entails, in turn, being forced into quite 13

Art 92 of the Charter. Cf L Gross, ‘The International Court of Justice and the United Nations’ (1967–I) 120 Recueil des Cours 313, 320. 15 For example, on the institutional relationship between the Court and the Security Council. Cf Lockerbie (Libya v UK ) (Provisional Measures Order) [1992] ICJ Rep 3 (Preliminary Objections) [1998] ICJ Rep 9, and Order of 10 September 2003 (<http://www.icj-cij.org/docket/files/89/7247. pdf> (accessed 17 May 2013)) (and the parallel case against the USA). 16 W Karl in ‘Article 70’, in Zimmermann et al (n 1) 1706. 17 As vigorously advocated by Sir Hersch Lauterpacht. 18 See the remarks of Sir Robert Jennings, former President of the ICJ, on the function of individual opinions: RY Jennings, ‘The Collegiate Responsibility and the Authority of the International Court of 14


The ICJ as an ‘Agent’ of Legal Development?

11

large assumptions about collegiate attitudes, and about continuity in that respect from the past to the present, and its hypothetical projection into the future.19 Subject to all those reservations, my own estimate—and it is just an estimate; others may size the material up differently—is that, in handling the ebb and flow of contentious cases brought before it, the ICJ has been essentially conservative. It has seen its task as being to produce a fair and objective reasoned solution to the particular dispute in front of it, constructed in such a way as to maximize the prospects of its judgment being complied with, rather than as being to seize the opportunity to shape or develop the law. The classic utterance is that of the Court itself in the Icelandic Fisheries cases: ‘the Court, as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down.’20 To be fair, that much-quoted phrase was preceded by ‘In the circumstances’, and by ‘circumstances’ the Court meant that fishery limits and fisheries conservation were at that very moment under negotiation in the Third United Nations Conference on the Law of the Sea (a factor to which I will return later). But it is also surely the case that the Court was not saying merely, We will not grant the litigant21 a right that is not yet established in law; wasn’t it also saying, We do not propose to throw our judicial weight into the scales so as to influence the outcome of those negotiations? Even in those cases (and I will be coming to them as well later on) where the analysis by the ICJ of the legal rules governing the case before it has had a profound influence on the course of the law, this has been a by-product of the Court’s settlement of the case, not an end in itself. I have seen no evidence whatsoever in my diplomatic life that the states appearing as parties in those cases— irrespective of whether they liked or disliked the decision delivered by the Court on their dispute—felt that they had been lured into a laboratory cage to serve as subjects in a live experiment in the development of the law, rather than remaining the recipient of the Court’s pronouncement (for good or ill) on the rights and obligations in force between them and the opposing party to the dispute. More difficult, though, is to assess a tendency that has become noticeable in the Court’s judgments over the last twenty-five years or so—one that has become more marked as the Court’s docket has expanded—to settle for a terse logical formalism which may or may not have weakened the overall legal reasoning but has quite often left an unreasoned gap between the terminal point of the detailed argument and the Court’s final conclusions. How to rank the effect of this tendency as between a different form of judicial conservatism or, on the other hand, a teleological approach towards what represents established law is far from straightforward, and may vary from one case to another. Justice’ in Y Dinstein (ed), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff, 1989) 350. 19 H Thirlway, ‘The Drafting of ICJ Decisions: Some Personal Recollections and Observations’ (2006) 5 Chinese JIL 15, provides valuable insights into the drafting process based on the actual practice of the Court, rather than mere conjecture. 20 Fisheries Jurisdiction (UK v Iceland) and (Germany v Iceland) (Merits) [1974] ICJ Rep 3, 23–4 and 175, 192. 21 On this occasion, a non-appearing litigant!


12

The Development of International Law by the ICJ

Nevertheless, if I am right in my assessment that the ICJ has, taken overall, adopted a conservative approach focusing on deciding the case rather than developing the law, that would be no more than what one might expect. On the one hand one has the innate conservatism of judicial institutions, concerned more with ‘is’ than with ‘ought’. But coupled with that is a sort of structural conservatism, born out of the fact that, even ninety years on, and even as the ‘principal judicial organ’ of the UN, the World Court remains an optional element in the international system, as reflected in the fundamental rule, which the ICJ itself has firmly upheld, that its jurisdiction is based on consent,22 and that, where it is authorized to adjudicate, it does not have in its hands any enforcement mechanism. Small wonder, then, if a permanent undercurrent in judicial thinking were to be a sort of anxious concern about acceptability and about future customer choice, functioning, so to speak, as performance measures. Finally, though more subtly, there is an intertemporal element to very many of the disputes brought to the Court for judgment—far more than would be the case with any national court; and the very need to appreciate an issue in dispute in the light of the law as it stood at the relevant time, is an effective neutralizer all on its own of latent temptations to evade the stricture against rendering judgment sub specie legis ferendae.

3.1 Separate and dissenting opinions I come, however, at this point to two further elements that have a certain relevance in this context. One of them is the separate and dissenting opinions that almost invariably accompany a judgment or reasoned order of the Court. A commonly painted picture is that, while the orders and judgments of the Court stay within the straight and narrow, you can look to the individual opinions for a more or less authoritative influencing of the current of future development.23 While I can follow the argument that the individual opinions, with their fuller and more fluent reasoning, can be a good source for understanding the more obscure or Delphic passages of the full Court’s judgment, I entertain a healthy dose of scepticism as to whether the individual opinions do really represent an effective and accepted engine for shaping the future law. On the one hand there is the matter (delicately put) of judicial overkill—which we seem to be getting an increasing amount of, and the 22 For a forceful recent reiteration of the principle see Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda) ( Jurisdiction and Admissibility) [2006] ICJ Rep 6, para 88, recalled, with approval, in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia) (Preliminary Objections) Judgment of 1 April 2011 (<http:// www.icj-cij.org/docket/files/140/16398.pdf> (accessed 17 May 2013)), para 131. 23 A point sometimes made by individual judges themselves, though self-justification cannot of itself amount to self-validation: thus, Separate opinion of Judge Fitzmaurice in Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase) (Merits) [1970] ICJ Rep 3, 65 (judicial pronouncements are ‘the principal method by which the law can find some concrete measure of clarification and development’); Dissenting Opinion of Judge Jessup in South West Africa (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJ Rep 6, 325–6 (‘dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed’).


The ICJ as an ‘Agent’ of Legal Development?

13

more of it we get, the greater the overkill. On the other hand, there is the fact— once again I try to put it delicately—that the individual opinions tend to generate more excitement among the professoriate than they do in the hard, cold world. The ICJ itself never cites them directly (I can think of only one instance when it has done so24), and it doesn’t take much imagination to try to think yourself into the unenviable position of a Member of the Court trying, in the judges’ private deliberations, to argue contra praetoris sententiam by invoking a past dissenting opinion, let alone a more recent one. States, for their part, are quite hard-headed, and like to be told what the law has been held to be, not what the prospects are of an argument which failed last time being successful the next time round, or the time after that. And even the counsel whom states hire can be quite pragmatic, faced with the imperative of winning cases rather than losing bravely but with their academic laurels intact. To avoid unfairness, though, one ought to recognize that propositions are often advanced in inter-state litigation not because they are likely to succeed, but for political reasons, and a reason of that kind may include the hope of influencing international opinion and so bringing about a change in customary law. But if so, the significance of such a proposition lies in its being the formal position of a state, and its effect depends on whether it influences or persuades other states. All in all, I would doubt whether a separate or dissenting opinion in the ICJ had the same legal weight as the individual judgment of, say, an English or Scottish judge at first instance, even if reversed on appeal, or as the individual judgment of a judge forming part of a higher appellate court. All that said, it can also be said with confidence that an ICJ bench that tried to be too adventurous would find its judgment encircled by an array of trenchant separate or dissenting opinions that would weigh in as a useful corrective in the process of absorbing the judgment into the international bloodstream.

3.2 Advisory opinions The second element to mention in this context is, of course, that other branch of the ICJ’s official activity already mentioned, namely the giving of advisory opinions. Here, and in particular, the arguments just made about the Court’s innate conservatism in deciding disputes between states lack purchase; if the advisory system operates as it is supposed to, and the Court adheres to its own maxim that it will not allow the advisory procedure to be used to circumvent the need for state consent to the adjudication of actual disputes,25 then the dynamic of an advisory procedure will be different. It will not bring into play a current disagreement between a pair or limited group of states about their respective rights and obligations towards one another, but instead some more general issue of wider concern 24 In Continental Shelf (Tunisia v Libya) (Application by Malta for Permission to Intervene) [1981] ICJ Rep 3, para 27, the Court referred to the declarations of ‘several judges’ in the Order regarding Fiji’s application to intervene in Nuclear Tests (Australia v France; New Zealand v France) (Application by Fiji for Permission to Intervene) [1973] ICJ Rep 535. 25 The so-called Eastern Carelia principle: see Status of Eastern Carelia (Advisory Opinion) (1923) PCIJ Ser B No 5, 28.


14

The Development of International Law by the ICJ

which is actively engaging the attention of the requesting UN organ, or perhaps even the interest of the international community in general. If so, then surely these are just the sort of circumstances that offer the Court the opportunity, legitimated by statute, to push the envelope, and engage in a measure of ‘progressive development’ of the areas of international law involved? That is certainly true so far as inter-institutional questions are concerned, or questions that raise issues concerning the powers and status of international bodies in general. One thinks immediately of the Reparation for Injuries26 and Expenses27 Opinions, which have reverberated down the decades because of the doors they opened onto an enlightened approach towards the international personality of intergovernmental organizations and their implied powers. To a certain extent the same could be said about the long series of South West Africa/Namibia Opinions,28 but those were much more restricted in their field of operation; and even the legitimizing by the 1970 Opinion of the modification through practice of the apparently literal meaning of the voting rules for the Security Council29 has turned out to have had virtually no analogical application elsewhere. As one moves outward, however, from the area of international institutions into international law more generally, the position becomes less clear. That we are able to do so at all is, of course, the product of the fact that Article 96(1) of the UN Charter authorizes the General Assembly and the Security Council (and them alone) to request from the ICJ an advisory opinion on ‘any legal question’. Even if you qualify that with the gloss (derived from the Court’s practice) that, in order to be sure that the Court will respond, the question of law posed has to be one to which the requesting organ needs an answer in order to be able effectively to carry out its own functions, the field remains very large; and it is only quite recently that we have been able to appreciate just how widely it might stretch, with the Nuclear Weapons30 Advisory Opinion succeeded by Wall,31 and latterly by Kosovo Independence.32 Inasmuch as the ICJ has now held, on repeated occasions, that it regards itself as bound in principle to respond to requests meeting the stated criterion, since that represents the Court’s participation in the work of the United 26 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174. 27 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151. 28 International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128; Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa (Advisory Opinion) [1955] ICJ Rep 67; Admissibility of Hearings by the Committee of South West Africa (Advisory Opinion) [1956] ICJ Rep 23; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16. 29 Namibia (n 28) para 22. 30 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. 31 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136. 32 Since the delivery of the lecture on which this contribution is based, the Court has delivered its Opinion, against the view of five of its judges who would have declined to accede to the General Assembly’s request: Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403.


The ICJ as an ‘Agent’ of Legal Development?

15

Nations deriving from its status as ‘principal judicial organ’, any tendency in the UN General Assembly to think that majority voting can be used as the means to turn a reference to the ICJ into an available tactic in pursuing highly political questions, is bound to lead the Court into queasily turbulent waters. The more politicized and more general the legal questions referred to the ICJ under the advisory procedure, the more we encounter a problem. This is one I have drawn attention to before, in these words: A court asked to play an advisory role is . . . faced with a choice. It may decide that the role requires it to bring to bear its collective judicial experience and wisdom, to be sure, but nevertheless not to act as a court; so it may conceive its function as analogous instead to that of a trusted advisor, like a family lawyer or the legal counsel of a government department or international organization. It may, on the contrary, decide that the advisory role is a judicial one, requiring it still to function as a court.33

Neither the PCIJ nor the ICJ seems ever to have addressed its collective mind to this prior question. The point behind it is, of course, that, whereas to operate in the ‘trusted advisor’ role admits of some degree of flexibility both in the way of process and in the shape of the final outcome, conversely to function as a court carries with it certain necessary implications as to the judicial quality of the process, and it also carries with it an inevitable expectation as to outcome. In particular, it creates an expectation that the outcome will be something recognizably similar to a ‘ruling’ on the question referred to the Court. Put together, the two elements of process and outcome combine into something approaching the ‘preservation of the integrity of the judicial function’ which the Court has previously laid on the table as the ultimate controlling factor in determining whether it can properly accept a request to deliver an advisory opinion.34 The ICJ has simply pretended that it can indeed act as a court in carrying out the advisory function, and that whatever adaptations are required to its normal procedural model can somehow be gathered in from case to case along the way.35 That unsystematic pragmatism worked well enough in the early days, when the questions coming to the ICJ were of an institutional character, though stresses began to appear over the use of a supposedly advisory procedure as a form of final appeal in UN staff cases, provoking in due course an explosion of ire from the Court36 and the eventual demise of the system itself.37 Latterly, however, 33 FD Berman, ‘The Uses and Abuses of Advisory Opinions’ in N Ando, E McWhinney and R Wolfrum (eds), Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer, 2002) vol 2, 809, 818–19. 34 As most recently recalled by the Court in Kosovo (n 32) para 31, recalling a long line of case law from Status of Eastern Carelia (n 25), 29; Application for Review of Judgment No 158 of the United Nations Administrative Tribunal (Advisory Opinion) [1973] ICJ Rep 166, para 24; Application for Review of Judgment No 273 of the United Nations Administrative Tribunal (Advisory Opinion) [1982] ICJ Rep 325, para 22; and Wall (n 31) paras 44–5. 35 Encouraged, no doubt, by Art 68 of the Statute, which somewhat insouciantly provides that advisory proceedings are to be conducted in the same manner as contentious proceedings (see also Arts 102–3 of the Rules). 36 Application for Review (n 34). 37 Art IX of the Statute of the United Nations Administrative Tribunal, which provided for the Court to review its judgments by way of advisory opinion, was finally deleted by GA Res 50/54 (29 January 1996), UN Doc A/RES/50/54, in which its preambular clause noted that the procedure


16

The Development of International Law by the ICJ

the unsystematic pragmatism has become less and less adequate, as the controversy has mounted over process questions such as: the methods and adequacy of factfinding; entitlement to appear before the Court, and in what capacity;38 the sufficiency of the legal argument presented to the Court; and the disabling of the Secretary-General and his Legal Counsel from offering the Court anything more than the barest factual material of a documentary kind. And from the point of view not of process but of outcome, we have only to look at the somewhat farcical conclusion of the Nuclear Weapons case, where a moderately straightforward question by the General Assembly, virtually demanding a yes or no answer, produced a response by way of seven propositions of varying degrees of obscurity or precision, culminating in a declaration of inability to decide which, in the ultimate absurdity, could only be adopted through the casting vote of the then President!39 To draw attention to these inadequacies is not to point an accusatory finger at the Court, which bears only a small share of the true responsibility for them. The main blame rests with the failure of the majority in the General Assembly to understand and properly to respect the integrity of the international judicial function. The Court itself may come to regret it, if it finds that it has in practice surrendered its ability to decline to respond to an advisory request on grounds of judicial propriety. The inverse linkage however remains: the more the advisory procedure is seen as the vehicle through which the Court can indeed exert a conscious and abstract influence on the ‘progressive development’ of international law, the more insistently will questions arise as to the judicial propriety of the process.40 ‘had not proved to be a constructive or useful element in the adjudication of staff disputes with the Organisation’. The Court still retains, under Art XII of the Statute of the Administrative Tribunal of the International Labour Organization (ILOAT), powers of review over the judgments of that Tribunal, as the most recent request for an advisory opinion before the Court demonstrates: see Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Request for Advisory Opinion of 26 April 2010 (<http://www.icj-cij.org/docket/files/146/15929.pdf> (accessed 17 May 2013)). 38 The Palestinian Authority and the Provisional Institutions of Government in Kosovo were allowed to make submissions to the Court, respectively, in Wall (n 31), Order of 19 December 2003, [2003] ICJ Rep 428, 429; and Kosovo (n 32), Order of 17 October 2008, [2008] ICJ Rep 409, 410. However, despite numerous requests, the Court has for decades allowed only for public international organizations (and those, with extreme parsimony) to make submissions before the Court, and it has consistently declined virtually all requests from non-governmental organizations to appear before it. For a summary of practice in this regard see GI Hernández, ‘Non-State Actors from the Perspective of the International Court of Justice’ in J d’Aspremont (ed), Participants in the International Legal System (Abingdon: Routledge, 2011) 140, 146–51. 39 And thus with questionable legality; see Berman (n 33) 825: ‘ . . . what possible juridical value can there be in giving greater weight to the voice of one particular judge? It is surely hard to resist the conclusion that an advisory proposition on which the judges divided equally is a proposition on which the Court as such was unable to pronounce a view. It neither accepted the proposition nor rejected it; it simply could not decide. It is impossible to see how such a proposition acquires extra persuasiveness as a statement of law in virtue of the fact that one of the judges voted for it twice.’ 40 Tellingly, in the Kosovo advisory proceedings (n 32), five judges—Vice-President Tomka, Judge Koroma, Judge Keith, Judge Bennouna, and Judge Skotnikov—voted against the giving of an advisory opinion, and elaborated their reasons for so doing in their declarations and dissenting opinions.


The ICJ as an ‘Agent’ of Legal Development?

17

4. The effect of the Court’s judicial activity I must come now to the third stage of my analysis: what has been the effect of the ICJ’s judicial activity on the broader legal landscape? This is of course a huge topic. Studies in detail, examining the substantive questions on which the Court has pronounced, topic by topic, like those produced sequentially by Fitzmaurice41 and now by Thirlway,42 would fill several volumes. Others, which aim at an overall conspectus, like those produced on the ICJ’s fiftieth43 and sixtieth anniversaries,44 are collective endeavours, combining the practised assessments of a global élite. One would not dream of trying to compete, within the scope of an individual contribution. Let me instead try to isolate some general elements that seem to me of interest in the context of the ICJ as an ‘agent of development’ or an ‘agent of change’. The first is not merely of interest but, I would think, of some considerable importance: once a proposition of law has been pronounced judicially, it escapes the Court’s control. This applies equally whether the pronouncement is in a judgment or in an advisory opinion. What do I mean by this? Let me take a handful of examples—and to protect myself against the retort that the sample has been slanted, they will be drawn both from areas that were under active international negotiation at the time the Court was looking at them, and areas that weren’t. Chronologically: Reparation for Injuries (1949),45 Reservations to the Genocide Convention (1951),46 Norwegian Fisheries (1951),47 and North Sea Continental Shelf (1969).48 In Reparation for Injuries, the Court decided that the United Nations as an Organization has the capacity to bring an international claim in respect of an injury to one of its officials whether or not the authority responsible was a member state. It supported this finding on the basis of the exceptional and broad functions conferred on the UN, and on the basis that ‘fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims’.49 Within a short space of time thereafter it was widely accepted (and is now universally recognized) that the same applies to almost any group of states, large or small, and that any international organization, 41

42 Thirlway (n 2). Fitzmaurice (n 2). V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: CUP, 1995). 44 The Chinese Journal of International Law dedicated Issue 1 of its fifth volume to the sixtieth anniversary of the Court. 45 Reparation for Injuries (n 26). 46 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15. 47 Anglo-Norwegian Fisheries (UK v Norway) [1951] ICJ Rep 116. 48 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands) [1969] ICJ Rep 3. 49 Reparation for Injuries (n 26) 185. 43


18

The Development of International Law by the ICJ

virtually irrespective of its scope or functions, can be the bearer of objective international personality. In Reservations to the Genocide Convention, the Court decided (if somewhat Delphically) that a state ratifying that treaty subject to a reservation could be regarded as a party if the reservation was compatible with the object and purpose of the treaty, but not otherwise. It supported this finding on the basis of ‘the special characteristics of the Genocide Convention’, including in particular that the Convention was manifestly adopted for a purely humanitarian and civilizing purpose . . . In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.50

Within an even shorter space of time thereafter, the flexible regime derived from the Court’s Opinion had been applied, in the Vienna Convention on the Law of Treaties, to all treaties (with only limited exceptions). Then, as the manifest problems resulting from that mounted up, we began to hear that, whatever the merits of the Vienna Convention’s flexible regime might be, it wasn’t really suited to the very type of treaty which the ICJ held was the justification for it, ie human rights treaties. In parallel to that a certain number of states started, to the surprise of many, objecting to reservations on the basis that they were incompatible with the object and purpose of the treaty in question, while declaring that that was not to prevent the treaty entering into force between objecting and reserving states—the very thing the ICJ had said was not possible. After years of dithering, in 2010 the International Law Commission’s Special Rapporteur, Alain Pellet, finally took a position in favour of severability of incompatible reservations;51 and the Commission as a whole put forward a formula in 201152 making the matter turn on the intentions of the reserving state.53 In Norwegian Fisheries, the Court held that Norway was entitled to establish a system of straight baselines off certain of her western coasts, and supported this by finding that the coastline was a ‘special one call[ing] for the application of a different method’, the general justification for which lay in the fact that the ‘real

50

Reservations to Genocide Convention (n 46) 23. See A Pellet, Fifteenth Report on Reservations to Treaties (2010) UN Doc A/CN.4/624; and First Addendum A/CN.4/624/Add.1. See also B Simma and GI Hernández, ‘Legal Consequences of an Impermissible Reservation to a Human Rights Treaty: Where Do We Stand?’ in E Cannizzaro (ed), The Law of Treaties beyond the Vienna Convention: Essays in Honour of Professor Giorgio Gaja (Oxford: OUP, 2011) 60; and A Pellet and D Müller, ‘Reservations to Human Rights Treaties: Not an Absolute Evil’ in U Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford: OUP, 2011) 521. 52 See Guide to Practice on Reservations to Treaties (at para 4.5.3), ILC Ybk 2011/II(2). 53 Which may still prove an ingenious solution to a troubling and intractable problem; unfortunately, though, the Commission may have dimmed the chances of its general acceptance by opting for the wrong default rule. 51


The ICJ as an ‘Agent’ of Legal Development?

19

question raised in the choice of base-lines is in effect whether certain sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters’, but this underlying idea ‘should be liberally applied in the case of a coast, the geographical configuration of which is as unusual as that of Norway’.54 Seven years later, this exceptional state of affairs had been incorporated as a form of generally applicable rule into the 1958 Convention on the Territorial Sea55 and by now practice shows a very significant proportion of states claiming straight baselines other than across bays, without protest from other states. My final example is the North Sea Continental Shelf cases, not this time the operative aspect in which the ICJ laid down the rules on delimitation applicable among the three Parties, instead the way the Court demolished the argument for ‘equitable shares’ by invoking the fundamental principle that the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources.56

You might think of this almost as an incidental stepping stone in the Court’s reasoning on the delimitation of a continuous continental shelf as between adjacent states. Yet, within some fifteen years, state practice, heated in the crucible of the Third UN Conference on the Law of the Sea, had turned it into a cardinal rule permitting the assertion of an outer limit to the continental shelf extending hundreds of miles from the coast. These are scattered examples, and I do not want to make too much out of them. Nor am I trying to use them to draw any very specific conclusion. They are intended merely as illustrations—and quite vivid ones, I think—of the more general point that, wherever the decisive control may be thought to reside in the development of international law, it certainly does not lie solely in the hands of the International Court. Not a very original conclusion, one may say; it does nothing more than restate in alternative terms the overall effect of Article 59 of the ICJ Statute, which lays down that ‘[t]he decision of the Court has no binding force except between the parties and in respect of the particular case’. But I make the point all the same, because from time to time we see the spectre conjured up, in the wake of some controversial decision given by the Court, of a focused intent to smother the international system in a dense layer of judge-made law—a picture that has no more substance or reality to it than any other international bogeyman.57 There are of course many structural factors that stand decisively in the way of any wholesale accretion of judge-made law in the international system. The one most frequently referred to (apart from Article 59 just mentioned) is the absence of

54

55 UNTS, vol 516, p 205 (Article 4). Anglo-Norwegian Fisheries (n 47) 133. North Sea Continental Shelf (n 48) para 19. 57 At the time the lecture was delivered, a current example was the ‘rogue Prosecutor’ of the International Criminal Court. 56


20

The Development of International Law by the ICJ

compulsory jurisdiction—though a more interesting observation would refer not so much to that in itself, as to the concomitant fact that the occasional and adventitious nature of the ICJ’s caseload has the almost automatic consequence that the Court is unlikely to be given the opportunity to revisit successively particular areas of substantive international law. The contrary examples are so few as to prove the rule, and even they tend to be like London buses, coming not at all, then all at once, and then fading away once more. The ICJ, in other words, simply does not have the same experience as domestic courts, of being asked by litigants on a regular basis to explore the implications of past decisions, refining and reshaping them seriatim in the light of the differing circumstances of individual cases. The other factor, however, which is surely of equal or even greater importance in the context of a supposed vocation to act as an agent of development, is simply that the processes by which international law changes are against it. This is more than merely a comment on the sources listed in Article 38 of the Statute, and the supposedly subordinate status it ascribes to the decisions of the ICJ itself. The non-hierarchical structure of international law, with its twin pillars of treaty and custom, each with its own distinctive mode of formation and pattern of change, but with a subtle and well-nigh indefinable cross-relationship between them, is simply inimical to a court playing the pervasive role characteristic of mature national systems. Which is emphatically not to say that these structural factors preclude the ICJ in its own regular activity from fertilizing these modes of law-formation, or being fertilized by them. Quite the contrary, as my little group of illustrations will itself have shown.

5. Concluding remarks This section of my discussion has however been too full of negatives. So let me conclude with some more constructive observations. They come in under the heading that, if the ICJ is not an ‘agent’ of development or change in any concerted or purposive sense, nevertheless both the Court’s very existence as well as its judicial activity do exert a powerful influence on international law; and as international law is in a constant state of development and change, the Court’s influence is inevitably felt in that respect as well. My compulsory quote from Lauterpacht is that ‘[i]nstitutions set up for the achievement of definite purposes grow to fulfil tasks not wholly identical with those which were in the minds of their authors at the time of their creation’.58 He might have added that the introduction onto the international scene of a standing judicial organ was a structural change, which would have not merely a quantitative but a qualitative effect. One does not need to look on the ICJ’s individual judgments (still less its advisory opinions) as somehow sacrosanct tablets of stone in order to grasp the effect that a substantial body of reasoned decisions, reached on the basis of careful fact-finding, published in an 58 H Lauterpacht, The Development of International Law by the International Court (London: Stevens & Sons, 1958) 5.


The ICJ as an ‘Agent’ of Legal Development?

21

accessible way, and widely discussed and commented on, is bound to have both on the system of international law and on its substantive content. That was part of the thought in the minds of the founding fathers. If one were pressed to say why, nowadays, we seldom, if at all, bother to pose ourselves the once favourite question as to the ‘completeness’ of international law, surely the most straightforward answer has to be: because we have had for nearly the past century a World Court. That is not all, though. Those like us who have to do the job so memorably described by Sir Robert Jennings59 need beacons, guides and orientation points, all the more so because of the non-structured, non-hierarchical nature of its rules—a need experienced every bit as strongly by those who prefer to see international law less as rules and more as process. But compare how we stand in that respect today, as opposed to 90 years ago when the PCIJ was born. Then, the only guides were a fairly thin layer of treaties and diplomatic savoir-faire in a handful of Chancelleries; and, beyond that, the only systematic treatment was the accumulated knowledge of the great scholars and writers. Now we have at our disposal a vast corpus of treatymaking, accessible through the UN system of registration and publication; we have expert studies commissioned by international organizations, notably those of the International Law Commission; and alongside them and enriching both we have the massive and extensive body of the judicial activity of the World Court, fully documented, and instantly available at the touch of a computer keyboard. Of course none of these sources can be guaranteed to furnish ‘the’ answer to any legal question; they are guides only, or starting points for our enquiry. And of course the judgments of the ICJ (and very much so its advisory opinions) will be tested in the rumbustious market-place of ideas, and so they should be; those that convince by the quality of their reasoning (and, I add, by the convincingness of their fact-finding) will have profound effects in the ways I have described, while those that don’t (on either score) will fade. Once again, that is as it should be. But how would we do without them?

59 RY Jennings, What Is International Law and How Do We Tell It When We See It? (CambridgeTilburg Law Lectures) (Berlin: Springer, 1983) 1.


This page intentionally left blank


PART II THE LAW OF TREATIES


This page intentionally left blank


3 The Role of the International Court of Justice in the Development of the Contemporary Law of Treaties Vera Gowlland-Debbas*

1. Introduction To what extent has the International Court of Justice (ICJ, or ‘the Court’) contributed to the development of a law of treaties more in keeping with the requirements of contemporary society? To begin with, what is the Court’s role in the development of international law tout court? Sir Hersch Lauterpacht addressed this question in his seminal work on The Development of International Law by the International Court over half a century ago. While acknowledging that [c]ourts have to apply the law and . . . they have to apply the law in force . . . [i]t is not their function deliberately to change the law so as to make it conform with their own views of justice and expedience’,1 he nevertheless expressed the view that: ‘[t]his does not mean that they do not in fact shape or even alter the law. But they do it without admitting it; they do it while guided at the same time by existing law; they do it while remembering that stability and uncertainty are no less of the essence of the law than justice; they do it, in a word, with caution.2

In his view, the Court had a duty to ‘consciously and conscientiously’ further the development of international law and not just to react to existing law, nor to shy away from underlining its shortcomings. It should not create the impression of ethical indifference, nor act as an ‘automatic slot-machine’ totally divorced from the social and political realities of the international community. The Court had to

* This contribution began as a lecture at the University of Glasgow on 28 April 2010, parts of which were subsequently published in ‘The Contribution of the International Court of Justice to the Development of the Law of Treaties’ in M Kohen, R Kolb and DL Tehindrazanarivelo (eds), Perspectives of International Law in the 21st Century: Liber Amicorum Christian Dominicé (Dordrecht: Martinus Nijhoff, 2012) 299–320. 1 H Lauterpacht, The Development of International Law by the International Court of Justice (London: Stevens & Sons, 1958) 75. 2 Lauterpacht (n 1).


26

The Development of International Law by the ICJ

exercise in each case a creative activity, having in mind the necessities of the international community.3 The Court itself has stated on numerous occasions that ‘[i]ts duty is to apply the law as it finds it, not to make it’,4 and Sir Robert Jennings once warned that one must not attempt to read too much in the Court’s judgments, for ‘any tendency to use contentious cases for broad excursions into “development” of the law is usually self-defeating’.5 But he was writing at a time when the Court’s cases were few and far between and one can hardly today deny the impact of its judgments and advisory opinions and the role they have played in the development and consolidation of international law (and by this is meant ‘general pronouncements of law and principle that may enrich and develop the law’).6 While there is no principle of stare decisis, the Court once again reiterated in its 2008 Judgment in the Genocide Convention case (Croatia v Serbia) that while not bound by its previous decisions, it will not depart from its settled jurisprudence unless it finds very particular reasons to do so.7 So the Court provides a certain continuity that is itself necessary for the development of the law. Ultimately, the outcome of many of its cases has depended on the vision which particular judges have had of the role the Court should play in the development of international law. At one end of the spectrum are judges like Alejandro Alvarez, who as far back as 1949 would have had the Court fulfil a new mission, additional to its functions of elucidating and developing the existing law, namely ‘that of creating and formulating new precepts’ to bring the law into harmony with the new conditions of social and international relations, founded on social interdependence, and as a result, and owing also ‘to the predominance of the general interest’, he pointed out in his prescient way that ‘[s]tates are bound by many rules which have not been ordered by their will’.8 Similarly, in his dissents, Judge Weeramantry often decried the fact that the ICJ had not taken up its responsibility to respond to 3 See S Rosenne, ‘Sir Hersch Lauterpacht’s Concept of the Task of the International Judge’ (1961) 55 AJIL 825, 835, 854–5. 4 South West Africa (Liberia v South Africa; Ethiopia v South Africa) [1966] ICJ Rep 6, para 89. Again, ‘The possibility of the law changing is ever present: but that cannot relieve the Court from its obligation to render a judgment on the basis of the law as it exists at the time of its decision’ (Fisheries Jurisdiction (UK v Iceland) (Merits) [1974] ICJ Rep 3, para 40; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para 18). 5 Sir RY Jennings, ‘The Judicial Function and the Rule of Law’ in International Law at the Time of its Codification: Essays in Honour of Roberto Ago (Dott A Giuffrè Editore, 1987) vol III, 139, 142–3. But see Judge Sir RY Jennings, ‘The Role of the International Court of Justice in the Development of International Environmental Law’ (1992) 1 Review of European Community and International Environmental Law 240–4. 6 GG Fitzmaurice, ‘Hersch Lauterpacht—The Scholar as Judge’ (1961) 37 BYIL 14–15, referring to two main possible approaches to the task of a judge, one conceiving the primary duty of the judge to be that of deciding the case in hand, with the minimum of verbiage, the other resorting to aspects which have a wider interest or connotation in order to make general pronouncements of law. For the formal aspects of judicial activism see H Thirlway, ‘Judicial Activism and the International Court of Justice’ in N Ando et al (eds), Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer, 2002) 75–105. 7 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Preliminary Objections) [2008] ICJ Rep 412, para 53. 8 Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4 individual opinion of Judge Alvarez, 40 and 43. See also International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128, Dissenting Opinion of Judge Alvarez, 175–7.


The Law of Treaties

27

the requirements of the international system, and in the Maritime Delimitation in the Area between Greenland and Jan Mayen case, appealed for a search of global traditions of equity for concepts which international law had not yet tapped ‘the sophisticated notions of reasonable and fair conduct currently being unveiled by modern researches in African, Pacific, and Amerindian customary law, . . . [and] Australian Aboriginal customary law.’9 Such judges sought a teleological interpretation of the law, considering that the judicial function was not the mere application of rules to facts. Like Sir Hersch Lauterpacht, some also adhered to the notion that ‘behind the personified institutions called States there are in every case individual human beings to whom the precepts of international law are addressed . . . ’10 But attitudes to the judicial function and to notions of justice have differed, and some judges were situated at the opposite end of the spectrum. Judge Fitzmaurice was very sensitive to the dangers of exceeding the limits of the judicial function; in his view, justice according to law meant an explicit separation between legal and political issues—this explains his dissent in the Namibia and South West Africa cases.11 Judge Guillaume believed in transactional justice—the Court’s role was merely to decide the case at hand and to satisfy the parties, with the minimum of verbiage necessary for this purpose12—and it was only after his departure that the term jus cogens passed the lips of the Court. Finally, while Judge Higgins posed the question of when creativity in the face of adverse circumstances crosses the line into the unpermitted,13 Sir Robert Jennings underlined that ‘a purely legal reasoning which fails to take adequate account of the practical and political consequences of a legal type of decision may be erroneous’.14 One is reminded here of Shabtai Rosenne’s fine distinction: ‘the function performed by the existence of the Court (as distinct from the performance of that function by the Court itself ) is to be seen in the ultimate analysis as a political one.’15 This juxtaposition of views may probably be too simplistic an approach. As Judge Kooijmans pointed out: in actual practice the situation often, be it not always, is rather nebulous. The ICJ is a collegiate body and both approaches will be reflected in its composition. And the final

9 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep 38, Separate Opinion of Judge Weeramantry, para 239. 10 Rosenne (n 3) 828. 11 JG Merrills, Judge Sir Gerald Fitzmaurice and the Discipline of International Law: Opinions on the International Court of Justice, 1961–1973 (The Hague: Kluwer, 1998) 70–4. 12 See G Guillaume, ‘Transformations du droit international et jurisprudence de la Cour Internationale de Justice’ in R Ben Achour and S Laghmani (eds), Les nouveaux aspects du droit international (Paris: Pedone, 1994) 175, 176. 13 R Higgins, ‘Keynote Address’ (2006) 100 ASIL Proceedings 388. 14 Sir RY Jennings, ‘Judicial Reasoning at an International Court’ in G Ress (ed), Vorträge, Reden und Berichte aus dem Europa-Institut, No. 236 (Universität des Saarlands: Saarbrücken, 1991) 1, 6. 15 S Rosenne, The Law and Practice of the International Court, 1920–1996, vol 1: The Court and the United Nations (Dordrecht: Martinus Nijhoff, 3rd edn 1997) 6.


28

The Development of International Law by the ICJ

product of the deliberations, whether a judgment or an advisory opinion, will usually be more determined by the specificities of the case than by a contest of approaches.16

Yet these different approaches have been reflected in the Court’s practice in such cases as the 1962 South West Africa cases17 and the recent 2012 case concerning Jurisdictional Immunities,18 which may be contrasted to the more daring 1971 Namibia and 2004 Wall 19 Advisory Opinions. Concerning the Court’s contribution to the development of the law of treaties, the overall picture shows that the Court, while at pains in its jurisprudence to stress the stability of treaty relations by advocating, for example, strict observance of the pacta sunt servanda principle and to generally strengthen the classical doctrine of the law of treaties, has not failed at the same time to take into account the evolution of international society. Treaties are par excellence the legal act or transaction by which social change and hence social claims cross the normative threshold; in other words they ensure the passage of non-law into law. It is clear that contemporary transformations in the social and legal environment have affected general law-making by states: (I) the complexity and technical nature of the social environment and the increasing role played by soft law which has made the shifting boundary between the normative and non-normative more difficult to seize, have affected the formal techniques of treaty-making and contributed to the diversity of treaty forms, while the emergence of a multiplicity of non-state actors has challenged the monopoly of the state in lawmaking; (II) though the law of treaties is concerned with the instrumentum and not the negotium, the substance of the norms in certain fields of international law has affected law-making—thus the budding of an international public policy and hierarchization of international law has had an impact on, inter alia, the changing nature of state consent underlying treaty-making in certain fields; and (III) the proliferation of different subsets of norms has been said to challenge the unity of international law, including the unity of the treaty regime under the Vienna Convention on the Law of Treaties20 (VCLT).21

16 P Kooijmans, ‘The ICJ in the 21st Century: Judicial Restraint, Judicial Activism, or Proactive Judicial Policy’ (2007) 56 ICLQ 741, 742. 17 South West Africa (Ethiopia and Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319. McWhinney pointed out that the Court here was engaging in exercises in logic and not in life and was preoccupied ‘with the petit-point needlework of international law at the expense of the substantive reality of the international conflict-situations coming before it’. E McWhinney, Judge Manfred Lachs and Judicial Law-Making: Opinions on the International Court of Justice, 1967–1993 (Dordrecht: Martinus Nijhoff, 1995) 20. 18 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) Judgment of 3 February 2012 (<www.icj-cij.org/docket/files/143/16883.pdf> (accessed on 17 May 2013)). 19 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136. 20 22 May 1969, 1155 UNTS 331. 21 See generally V Gowlland-Debbas (ed), Multilateral Treaty-Making: The Current Status of Challenges to and Reforms Needed in the International Legislative Process (Dordrecht: Martinus Nijhoff, 2000); V Gowlland-Debbas, Law-Making in a Globalized World, Bancaja Euromediterranean Courses of International Law, vol VIII/IX (2004–5), 505–661.


The Law of Treaties

29

I will therefore focus on the ICJ’s contribution to the law of treaties in the light of these environmental changes and societal requirements. International conventions being the bread and butter of the Court’s mandate under Article 38 of its Statute, the material is necessarily voluminous, so my remarks can only be impressionistic ones.

2. The Court and the diversity of forms and actors involved in treaty-making The ICJ has never strictly adhered to formalities when it comes to treaty law. In conformity with the VCLT, the Court observed in its Qatar v Bahrain Judgment that ‘international agreements may take a number of forms and be given a diversity of names’, terminology not being a determinant factor as to the character of an international agreement.22 But this was not new. As Klabbers has pointed out, the Permanent Court of International Justice had been equally flexible with regard to the notion of informal agreements, declaring that international engagements with obligatory force may be taken in various forms, such as ‘treaties, conventions, declarations, agreements, protocols, or exchanges of notes’.23 Thus the Court’s case law has considered mandates, joint communiqués, and minutes of meetings to be potentially capable of constituting binding agreements. In the South West Africa cases, the ICJ viewed South Africa’s Mandate over South West Africa as a special type of instrument, which, while it took the form of a Resolution of the League Council, had ‘the character of a treaty or convention and embodying engagements for the Mandatory as defined by the Council and accepted by the Mandatory’.24 It implicitly applied the VCLT provisions on material breach to such an engagement. The Court has upheld the intention of states but only as expressed in the actual wording and the particular context in which an instrument was concluded, over the form taken by it, for as it stated in the Aegean Sea Continental Shelf case: ‘On the question of form, the Court need only observe that it knows of no rule of international law which might preclude a joint communiqué [between Greece and Turkey, which had neither been signed nor initialled] from constituting an international agreement’, even though it concluded that it did not have the binding effect contended for.25

22 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1994] ICJ Rep 112, para 23. 23 Customs Regime between Germany and Austria (1931) PCIJ Ser A/B No 41,14; see J Klabbers, The Concept of Treaty in International Law (The Hague: Kluwer, 1996) 45. 24 South West Africa (Preliminary Objections) (n 17) 330–1. See also the Separate Opinion of Judge Jessup in the same case, 411: ‘International law, not being a formalistic system, holds States legally bound by their undertakings in a variety of circumstances’, and the Joint Dissenting Opinion of Judge Fitzmaurice and Judge Spencer, 474–5. 25 Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3, para 96.


30

The Development of International Law by the ICJ

This approach to treaty law was elaborated in the Qatar v Bahrain case, in which the ICJ considered that the minutes of a meeting concluded in 1990 between the parties Qatar and Bahrain could be constitutive of rights and obligations in international law. Formalities such as non-registration (Article 102 of the UN Charter) or disregard for constitutional procedures (Bahrain’s contention regarding Qatar’s conduct) could not affect the binding nature of the document. The Court went even further in stating that even if Qatar’s intentions not to conclude a binding agreement could be shown to exist, they could not prevail over the actual terms of the instrument in question.26 Admittedly the Court was concerned in these cases only with whether the agreement in question was sufficient to establish its jurisdiction, stating that ‘the court is not concerned, nor is it competent, to pronounce upon any other implications’ of the documents in question.27 Nevertheless, such pronouncements of the Court were bound to have a decisive impact on the practice of drawing up informal agreements and showed the legal consequences that this practice may result in.28 The Court has also touched on the changing role of actors within the system. Judge Higgins has pointed out that ‘[i]t has been widely noted that globalization is encouraging the emergence of international actors other than states . . . The parallel phenomenon—the need to look behind the monolithic face of “the state” . . . has perhaps been less commented on’.29 For state practice has become fragmented: the so-called ‘acts of states’ which are relevant for the purposes of international law are in fact the work of a multitude of state organs, and ever-different substrata of the state now directly participate in treaty-making in their areas of competence, which raises the question of who can bind the state. The 1969 VCLT shelved the issue of the conclusion of treaties by the constituent units of a federal state. But Judge Higgins has pointed out that in the LaGrand case the ICJ went beyond the state which was the ratifying party under the Vienna Convention on Consular Relations,30 in underlining the obligations of the Governor of Arizona ‘to act in conformity with the international undertakings of the United States’ and declared that the United States Government ‘should transmit this Order to the Governor of the State of Arizona’.31 ‘This was an important

26 Qatar v Bahrain (n 22) paras 25 ff: ‘Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record of a meeting . . . They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement.’ Klabbers points out that in the Interpretation of the Treaty of Neuilly (1924) PCIJ Ser A No 4 the Court equally ignored the formality of registration. Klabbers (n 23) 81. 27 Aegean Sea (n 25) para 96. 28 See EW Vierdag, ‘The International Court of Justice and the Law of Treaties’ in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice (Cambridge: CUP, 1996) 145, 165–6. 29 R Higgins, ‘The Concept of “The State”: Variable Geometry and Dualist Perceptions’ in L Boisson de Chazournes and V Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (The Hague: Kluwer, 2001) 547, 561. 30 24 April 1963, 596 UNTS 261. 31 LaGrand (Germany v USA) (Provisional Measures) [1999] ICJ Rep 9, paras 28–29.


The Law of Treaties

31

departure for the Court, directed to “piercing the veil” of the concept of “a state” for purposes of securing compliance with international obligations.’32 The ICJ also addressed itself directly to the conduct of domestic courts, when it stated ‘that the Malaysian courts had the obligation to deal with the question of immunity from legal process’ of a Special Rapporteur of the UN Human Rights Commission and that the Government had an obligation to communicate the Advisory Opinion to these courts to give effect to its international obligations.33 In DRC v Rwanda, the Court rejected Rwanda’s argument that it could not be internationally bound by a statement of its Minister of Justice made before the UN Human Rights Commission stating Rwanda’s intention to withdraw its reservations to human rights treaties (and relied upon by the Congo as a basis for the Court’s jurisdiction), as only a Foreign Minister or Head of Government had ‘automatic authority to bind the State in matters of international relations’—in this case to lift the particular reservation. The Court noted that with increasing frequency in modern international relations, other persons such as ‘holders of technical ministerial portfolios exercising powers in their field of competence in the area of foreign relations, and even . . . certain officials’ may be authorized by that state to bind it by their statements in respect of matters falling within their purview. It could not therefore accept Rwanda’s argument that the statement ‘did not bind the Rwandan State internationally, merely because of the nature of the functions that . . . [the Minister of Justice] exercised’, although it considered that the statement in this particular case had not been ‘made in clear and specific terms’.34 As for international organizations, having recognized in the Reparations case that the United Nations had international personality, the ICJ opened the door to the possibility of the creation of legal entities other than states in response to ‘the requirements of international life’, pointing out that ‘[t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community’.35 It subsequently accepted the treaty-making capacity of international organizations; asserting that as subjects of international law, international organizations are bound by the provisions of treaties to which they have adhered.36

32

Higgins (n 29) 557. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62, dispositif, paras 2 and 4; Higgins (n 29) 559–60. 34 Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep 6, paras 46–53. The statement of the Rwandan Minister of Justice also raises the question of unilateral acts of states which I will not re-visit (see eg the Nuclear Tests cases (Australia v France) and (New Zealand v France) [1974] ICJ Rep 253 and 457, 42 ff and 45 ff respectively). 35 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 178. 36 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73, para 37. 33


32

The Development of International Law by the ICJ

But the international legal system has had a difficult time transcending the statecentric system in order to capture the diversity of social actors; these have not all been recognized as having treaty-making capacity. The PCIJ in Serbian Loans had put forward the classic view that any contract not between states arose within national law.37 This traditional pronouncement was revisited by its successor Court in respect more specifically of multinational corporations in the Anglo-Iranian Oil case, which concerned a dispute between the Iranian Government and the AngloIranian Oil Company arising from the Government’s nationalization of the oil industry in 1951, and hence its ending of a 1933 oil concession granted to the company.38 The Court rejected the view put forward by the UK that the 1933 concession agreement had a dual character—concessionary contract and treaty between two governments (because it had been concluded in settlement of a dispute between the UK and Iran), stating that it was nothing more than a concessionary contract between a government and a foreign corporation; it did not regulate the relations between Iran and the UK. In this case also, the Court was concerned only with whether the concession belonged to the category of treaties for purposes of its jurisdiction, ie for the purposes of interpretation of the Iranian optional clause declaration. It has not revisited this question since, although it has been faced with cases involving concessions and multinational corporations (Mavrommatis,39 Barcelona Traction,40 ELSI,41 and Diallo42).43 The recent proliferation of investment disputes has not changed the picture; investment treaty tribunals continue to make a strict distinction between the international treaty and the municipal or contractual sphere, despite the increasing interrelationship between public and private international law in such dispute resolution.44 The question of the status of treaties concluded with indigenous peoples has also surfaced in the context of the long process of obtaining a declaration on the rights of indigenous peoples. The general tendency has been to contest their standing in international law today either because they are sui generis or because they are considered basically a domestic issue. In examining Nigeria’s claim to the title to the Bakassi peninsula, in the Land and Maritime Boundary dispute between Nigeria and Cameroon, the Court considered the international legal status of an 1884 ‘Treaty of Protection’, concluded between the Kings and Chiefs of Old Calabar and Great Britain, the nature of which it stated could not be deduced from its title alone. It distinguished between

37

Serbian Loans (1929) PCIJ Ser A No 20, 41. Anglo-Iranian Oil Company (UK v Iran) (Preliminary Objections) [1952] ICJ Rep 89, 112–13. 39 Mavrommatis Palestine Concessions, Judgment No 2 (1924) PCIJ Ser A No 2. 40 Barcelona Traction, Light, and Power Company, Limited (Belgium v Spain) (Second Phase) (Merits) [1970] ICJ Rep 3. 41 Elettronica Sicula SpA (ELSI) (US v Italy) [1989] ICJ Rep 15. 42 Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections) [2007] ICJ Rep 582. 43 For details see Kate Parlett’s contribution to the present volume at Chapter 6. 44 See eg Z Douglas, The International Law of Investment Claims (Cambridge: CUP, 2009) 8. 38


The Law of Treaties

33

those ‘treaties of protection’ entered into with entities that retained a previously existing sovereignty, ie a protectorate such as Morocco or Tunisia, and those entered into with important indigenous rulers exercising effective local rule over areas of territory. So far as the latter were concerned, the Court referred to Max Huber’s pronouncement in the Island of Palmas case45 that such a treaty ‘is not an agreement between equals; it is rather a form of internal organisation of a colonial territory, on the basis of autonomy of the natives . . . And thus suzerainty over the native States becomes the basis of territorial sovereignty as towards other members of the community of nations.’46 It also referred to its Western Sahara Advisory Opinion in which it had stated that in territories that were not terra nullius, but were inhabited by tribes or people having a social and political organization, ‘agreements concluded with local rulers . . . were regarded as derivative roots of title’ and it required effect to be given to their legal consequences.47 It concluded that in its view the 1884 Treaty had not established an international protectorate, but was one of a multitude in a region where the local rulers were not regarded as states; from the outset Britain regarded itself as administering the territories comprised in the 1884 Treaty and had not considered that the latter implied international personality. The Court therefore rejected Nigeria’s contention that until Nigeria’s independence in 1961 the Bakassi Peninsula had remained under the sovereignty of the Kings and Chiefs of Old Calabar.48 Judge Koroma dissented from this finding of the Court: in his view, it was in clear violation of the express provisions of the Treaty and contrary to the intent of the Kings and Chiefs; it was clear from its terms that the 1884 Treaty was governed by the principle of pacta sunt servanda, that Old Calabar was regarded not as terra nullius but as a politically and socially organized community which was recognized as such, and constituted an acknowledgement by Great Britain that the Kings and Chiefs of Old Calabar were capable of entering into a treaty relationship with a foreign power.49 On the other hand, the Court accepted in the Wall case that the IsraeliPalestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 created rights and obligations under international law; it imposed commitments on both Israel and the PLO and it was one more indication of the recognition of the ‘legitimate rights’ of the Palestinian people under international law, which included a right to self-determination, as well as recognition of the PLO as their legitimate representatives.50 The Court thus recognized the treaty-making capacity of a national liberation movement.

45

Island of Palmas case (Netherlands v US ) (1928) 2 RIAA 829, 840. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) [2002] ICJ Rep 303, para 205. 47 Western Sahara [1975] ICJ Rep 12, para 80. 48 Cameroon v Nigeria (n 46) paras 207, 212. 49 Cameroon v Nigeria (n 46), Dissenting Opinion of Judge Koroma 479, para 15. 50 Wall case (n 19) para 118. 46


34

The Development of International Law by the ICJ

3. The Court, the hierarchization of international law, and the concept of collective interest treaties 3.1 The concept of collective interest treaties The recognition of a hierarchy or gradation of legal norms and the juxtaposition of community interests and values alongside the bilateral and contractual relations between states has in fact not only contributed to the substantive fabric of international law but has brought in its wake different assumptions and has had an impact on basic premises of international law, including those on law formation. A multitude of categorizations has entered willy-nilly into the legal vocabulary, whether as positive or as ‘soft’ law. The Court has contributed its own vocabulary to this development: obligations erga omnes, intransgressible norms of customary international law, elementary considerations of humanity, etc,51 although it has not had much say with regard to the concept of jus cogens, ensconced in Article 53 of the VCLT, for while the first use of the term jus cogens may be traced to Judge Schücking’s Opinion in the Oscar Chinn case,52 referring in this context not to peremptory norms per se but to treaty provisions expressly providing for nonderogability, inter alia Article 20 of the Covenant, the first direct endorsement of the term by the ICJ was made only in 2006 in Armed Activities (DRC v Rwanda).53 The field of treaty law has produced, apart from jus cogens, the concept of ‘collective interest’ reflected in certain multilateral treaties insofar as they cannot be split up into a series of bilateral rights and obligations, since their violation necessarily affects the enjoyment of the rights or the performance of the obligations of the other parties, such as fisheries conservation treaties or treaties on disarmament; or, again, which establish obligations of an essentially objective character, such as human rights treaties.54 This has given rise to the question of the unity or diversity of the VCLT’s legal regime, ie whether different types of treaties

51 See, eg, Barcelona Traction (n 40) para 33; Nuclear Weapons (n 4) para 79; Wall case (n 19) para 157. See generally V Gowlland-Debbas, ‘Judicial Insights into the Fundamental Values and Interests of the International Community’ in AS Muller, D Raic and JM Thuranszky (eds), The International Court of Justice: Its Future Role After 50 Years (Dordrecht: Martinus Nijhoff, 1997) 327. 52 Oscar Chinn (1934) PCIJ Ser A/B No 63, 149. But Judge Schücking’s words should be recalled in this connection: ‘The terms of Article 38 of the Statute—which indicates, in the first place, as the source of law for the Court’s decisions “international conventions, whether general or particular . . . ”— cannot be intended to mean that the Court is bound to apply conventions which it knows to be invalid. The Court would never, for instance, apply a convention the terms of which were contrary to public morality. But in my view, a tribunal finds itself in the same position if a convention adduced by the parties is in reality null and void, owing to a flaw in its origin. The attitude of the tribunal should, in my opinion, be governed in such a case by considerations of international public policy . . . ’ The ICJ, moreover, has never had to declare a treaty invalid because it conflicts with jus cogens, nor has it been solicited under Art 66 of the VCLT which establishes the jurisdiction of the Court to settle disputes arising from the violation of peremptory norms (jus cogens). 53 Armed Activities (DRC v Rwanda) (Jurisdiction and Admissibility) (n 34) para 64. 54 See DN Hutchinson, ‘Solidarity and Breaches of Multilateral Treaties’ (1988) 59 BYIL 151, 151–6.


The Law of Treaties

35

are subject to different treaty rules, in particular in the matters of interpretation, reservations, and succession.

3.2 The Court’s approach to collective interest treaties The VCLT was cast in the mould of the relatively homogenous society of the time based on bilateral relationships between states; it does not include the traditional distinction between traité-loi and traité-contrat or that between normative or codification treaties and contractual treaties.55 Nor did it expressly retain Sir Gerald’s Fitzmaurice’s approach pursuant to which different categories of treaties would have been regulated by the provisions of Article 30 on successive treaties, namely: (a) treaties comprising reciprocal obligations; (b) those which included interdependent obligations, ie ‘where a fundamental breach of one of the obligations of the treaty by one party will justify a corresponding non-performance generally by the other parties, and not merely a non-performance in their relations with the defaulting party’; and (c) those of an integral character ‘where the force of the obligation is self-existent, absolute and inherent for each party, and not dependent on a corresponding performance by the others’,56 such as the Genocide Convention, various instruments relating to the protection of human rights, and the 1949 Geneva Conventions. But certain provisions of the VCLT hint at such a distinction,57 which would also be reflected in the ILC’s subsequent work on state responsibility.58 The Court has been instrumental in elaborating the concept of treaties with a collective interest. The PCIJ’s 1923 Wimbledon Judgment, while characterizing the right to enter into international agreements as ‘an attribute of State sovereignty’,59 interpreted the notion of legal interest widely to include all the parties to the treaty regime relating to the Kiel Canal in the execution of its provisions; and in the Continental Shelf case the ICJ referred to norm-creating provisions in a convention, with obvious reference to the traité-loi, the only ones capable of generating customary international law. But it is especially in relation to human rights treaties that the ICJ has given voice to the concept of collective interest embedded in multilateral treaties having a

55 This categorization can be traced back to Triepel’s (borrowed) distinction between the Vertrag and the Vereinbarung, between an agreement reconciling or adjusting opposing interests and one reflecting the common interests of the parties and of a standard-setting kind (H Triepel, ‘Les rapports entre droit interne et droit international’ (1923) 1 Recueil des Cours 73). 56 Third Report on the Law of Treaties (Doc A/CN.4/115), ILC Ybk 1958/II, 27–8. 57 Namely Art 60(2) and (5) on material breach; Art 5 on treaties and international organizations; Art 20(3) on reservations in the context of international organizations; and Art 30(1) on Art 103 of the UN Charter. 58 See the notion of injured states in the 1996 Draft Articles on State Responsibility (Art 40(2)(e) (ii) and (iii)), and in the final Articles on the Responsibility of States for Internationally Wrongful Acts, (Art 48(1)(a)–(b) on the non-injured state’s right to invoke responsibility and Art 59 on the UN Charter’s status). 59 SS ‘Wimbledon’ (UK, France, Italy, Japan, Poland [Intervening] v Germany) (1923) PCIJ Ser A No 1, 25.


36

The Development of International Law by the ICJ

humanitarian purpose. In examining the compatibility of reservations with the Genocide Convention, the ICJ declared: In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties . . . 60

Similarly, the Mandate for South West Africa, having as its object a ‘sacred trust of civilization’, was considered to embody ‘international engagements of general interest’,61 insofar as it ‘was created, in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object—a sacred trust of civilization’.62 The ICJ has likewise approached the UN Charter as a ‘multilateral treaty, albeit a treaty having certain special characteristics’,63 stating that [f]rom a formal standpoint, the constituent instruments of international organisations are multilateral treaties, to which the well-established rules of treaty interpretation apply . . . But [they] are also treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realising common goals.64

3.3 Collective interests and treaty interpretation The concept of a treaty having a collective interest first had an impact on treaty interpretation. While the VCLT refers to object and purpose in many of its provisions, Article 31(1) has usually been interpreted as a single operation, the context of a treaty and its object and purpose resorted to only in order to shed light on the ordinary meaning of the term, thus bolstering a textual approach. The Court itself has on a number of occasions stated that interpretation must be based above all upon the text of a treaty.65 Yet the nature of treaties such as the Charter of the United Nations has led it to depart from such an approach on the basis of a dynamic, teleological, or evolutionary approach which has taken into account the development not only of new rules but also of new standards, principles, and values.

60 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15, 23. 61 South West Africa (Preliminary Objections) (n 17) 332. 62 Legal Consequences for States of the Continued Presence of South Africa in South West Africa (Namibia) notwithstanding Security Council Resolution 276 [1971] ICJ Rep 16, para 46; Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240, para 41. 63 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 157. 64 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, para 19. 65 Territorial Dispute (Libya/Chad) [1994] ICJ Rep 6, para 41.


The Law of Treaties

37

In its Namibia Opinion, the Court, referring to the concept of sacred trust embodied in Article 22 of the League Covenant which the Court considered to have contained the seeds of the contemporary right of self-determination, stated that though ‘[m]indful as it is of the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion’, where the concepts embodied in a treaty are not static but ‘by definition, evolutionary’, their interpretation cannot remain unaffected by the subsequent development of law . . . Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.66

The ICJ nevertheless tried not to depart too much from traditional consensual views of interpretation by stating that ‘the parties to the Covenant must consequently be deemed to have accepted them as such’, in other words it must surely have been the intention of the parties to have considered certain generic terms of the treaty to be evolutionary. Admittedly, the Court has applied this evolutionary interpretation to other types of legal instruments.67 At the same time, the Court referred to the subsequent practice of the UN in the field of decolonization, raising the question of the close relationship between subsequent practice and evolutive interpretation.68 The ICJ has also had to assess the impact of the emergence of new norms of environmental law on the interpretation of a treaty. In the Gabčíkovo-Nagymaros case Hungary, relying on the Court’s Namibia pronouncement, invoked the principle of ecological necessity in unilaterally suspending and then, in 1992, terminating the 1977 Danube River Dam treaty concluded with Czechoslovakia, in response to that state’s introduction of a unilateral provisional solution for the operation of the Gabčíkovo dam. Claiming that this would have a number of

66

Namibia (n 62) para 53. In Aegean Sea Continental Shelf (n 25) it considered, in relation to the term ‘territorial status’ in a reservation, that when parties to a treaty use generic terms to define the scope of their obligations, they must be presumed to have intended the meaning and content of those terms to follow the evolution of international law, particularly when those terms are ensconced in treaties designed to be of a general kind and of continuing duration (paras 75–80). More recently, in the Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), the Court stated: ‘there are situations in which the parties’ intent upon conclusion of the treaty was . . . to give the terms used . . . a meaning or content capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law’. This was the case with the term comercio, which was a ‘generic term’ in a treaty that had been in force for a very long time. Again, the Court insisted that such an interpretation took account of the common intention at the time the treaty was concluded ([2009] ICJ Rep 213, paras 64–8). While connected, this ‘mobile reference’ (see Judge Bedjaoui’s Separate Opinion in GabčíkovoNagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7, 120, para 8) is not to be confused with intertemporal law as stated in the Island of Palmas case, in which ‘a judicial fact must be appreciated in the light of the law contemporary with it’, which raises the question of the scope of application of two rules with fixed content ((n 45) 845). Though raised by Sir Humphrey Waldock, the concept of intertemporal law was not retained in the VCLT. 68 In the Dispute regarding Navigational Rights (n 67) the Court clearly distinguished evolutionary interpretation from the subsequent practice of the parties, which in fact departed from the original intent (para 64). 67


38

The Development of International Law by the ICJ

adverse ecological effects, Hungary requested that the Court interpret the treaty in the light of the new law of the environment and of international watercourses. The Court was not impressed with the arguments concerning ecological necessity and ultimately found that both Hungary and Slovakia were in breach of their contractual obligations. It accepted that the ‘newly developed norms of environmental law are relevant for the implementation of the Treaty’, but it preferred to base its reasoning on the text itself, one of the purposes of which it considered to be environmental protection. It referred to certain provisions of the 1977 Treaty which it considered to be by nature evolutionary (the vague wording of Articles 15, 19, and 20 in which reference is made to ‘protection’ of water, nature, or fishing) and concluded that the continuing—and thus necessarily evolving—treaty obligation on the parties to ensure that the quality of water in the Danube was not impaired meant taking new environmental norms into consideration . . . By inserting these evolving provisions in the Treaty, the parties recognized the potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt to emerging norms of international law.69

This included the important concept of sustainable development. While a teleological principle of interpretation to give maximum effect to provisions of a treaty could not mean engaging in a process of rectification or revision,70 at the same time the Court was mindful that, ‘in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage’.71 Judge Weeramantry, in his Separate Opinion, referred to the principle of ‘contemporaneity’—ie the standards in force at the time of application—in the application of environmental norms which could not ‘operate as though they were frozen in time when the Treaty was entered into’, for in addressing such problems which transcended the individual interests of the litigating states and their ‘parochial concerns’ and looked beyond ‘to the greater interests of humanity and planetary welfare . . . international law will need to look beyond procedural rules fashioned for purely inter partes litigation’.72 Judge Bedjaoui, however, pointed out the limits of such an evolutionary approach based on concepts and terms which were inherently evolutionary; in the 69 Gabčíkovo-Nagymaros (n 67) paras 112 and 140. See also Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep 1045, para 20: ‘In order to illuminate the meaning of words agreed upon in 1890, there is nothing that prevents the Court from taking into account the present-day state of scientific knowledge, as reflected in the documentary material submitted to it by the Parties.’ See F Zarbiev, ‘L’interprétation téléologique des traits comme moyen de prise en compte des valeurs et intérêts environnementaux’ in H Ruiz Fabri and L Gradoni (eds), La circulation des concepts juridiques: le droit international de l’environnement entre mondialisation et fragmentation (Paris: Editions Société de législation comparée, 2009) 221–2. For comment from the perspective of international environmental law see Fitzmaurice, in this volume, Chapter 15. 70 South West Africa cases (n 4) para 91. 71 Gabčíkovo-Nagymaros (n 67) para 140. 72 Gabčíkovo-Nagymaros (n 67), Separate Opinion of Judge Weeramantry, 118.


The Law of Treaties

39

Namibia situation the very definition of the term ‘sacred trust’ was capable of evolution whereas in his view the definition of the environment itself was static. He objected to the notion that a state could incur unknown obligations for the future or even the present.73 The debate arising from the Gabčíkovo-Nagymaros case goes to the heart of a domain which involves evolving legal commitments in the face of changing circumstances, ‘a virtually continuous legislative enterprise’. Environmental treaty-making, particularly as expressed in framework conventions (multilateral environment agreements, or MEAs), has become not ‘a one-off event’, but a process which ‘institutionalizes change as opposed to “stability”’.74 While some have seen in the treaty-making process of MEAs a form of law-making within an, albeit dynamic, consensualist treaty framework from which these norms derive their validity, others see it as an alternative to standard treaty law approaches, indeed as an autonomous form of law-making—an embryonic legislative mechanism.75 The human rights treaty bodies, relying very much on the Court’s pronouncement in the Namibia Opinion, have also approached their respective treaties as ‘living instrument[s] which must be interpreted in the light of present-day conditions’, upholding their fundamental and non-synallagmatic nature.76 In so doing they in fact set the biggest challenges to the unity of the VCLT regime, drawing their own conclusions with regard to interpretation and to the permissibility, effects, and severability of reservations formulated by states to their respective instruments, as well as to suspension and termination of treaty obligations prompted by a material breach and state succession.77 The VCLT, while recognizing the need to have special provisions for the constituent instruments of international organizations in respect of reservations and amendments, does not distinguish between different types of treaties when it comes to interpretation. In principle, therefore, the Charter should be interpreted on the basis of Article 31. The Court stated in the Certain Expenses case that in previous cases relating to Charter interpretation ‘it . . . followed the principles and rules applicable in general to the interpretation of treaties’.78 In the Admission case, the Court, referring to Article 4 of the Charter, stated: ‘To warrant an interpretation other than that which ensues from the natural meaning of the words, a

73

Gabčíkovo-Nagymaros (n 67), Separate Opinion of Judge Bedjaoui, para 8. C Redgwell, ‘Multilateral Environmental Treaty-Making’ in V Gowlland-Debbas (ed), Multilateral Treaty-Making (n 21) 89, 90–2. 75 J Brunnée, ‘Reweaving the Fabric of International Law? Patterns of Consent in Environmental Framework Agreements’, in R Wolfrum and V Röben, Developments of International Law in Treaty Making (Berlin: Springer, 2005) 101. 76 See eg Austria v Italy (1961) 4 Ybk ECHR 138 (ECnHR), 140; also Ireland v UK (1978) 2 EHRR 25 (ECtHR), para 239; Matthews v UK (1999) 28 EHRR 361 (ECtHR), para 39; also Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 77) (Advisory Opinion) OC-2/82 of 24 September 1982, Ser A, No 2 (IACtHR), paras 28 and 29. 77 See Gowlland-Debbas, Law-Making in a Globalized World (n 21) 581 ff. 78 Certain Expenses (n 63) 157. 74


40

The Development of International Law by the ICJ

decisive reason would be required which has not been established.’79 To determine the ordinary meaning it has looked at the context in which it is used and has referred to the travaux préparatoires on occasion. But the Court became conscious of the specific problems of interpretation of such treaties which were both conventional and institutional. One had to look at both the objectives assigned by the founders and ‘the imperatives associated with the effective performance of its functions, as well as its own practice . . . ’80 These special characteristics led the Court to its most interesting and consequential departure from the ordinary meaning of the text, namely its resort to an object and purpose test, interpreting the Charter by reference to two closely related concepts: the concept of ‘institutional effectiveness’ and that of ‘implied powers’. The Court famously stated the latter doctrine in the Reparations case: ‘[u]nder international law the organization must be deemed to have those powers which though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties’.81 In short, it expressed the view that the purposes set forth in Article 1 of the Charter can be used to justify the exercise of power not expressly authorized. One will recall the pronouncement by US Supreme Court Justice Holmes in Missouri v Holland: a constituent instrument will ‘call into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.’82 Judge Azevedo put the matter most forcefully: the interpretation of the San Francisco instruments will always have to represent a teleological character if they are to meet the requirements of world peace, co-operation between men, individual freedom and social progress. The Charter is a means and not an end. To comply with its aims one must seek the method of interpretation most likely to serve the natural evolution of the needs of mankind . . . even if the terms remain unchanged . . . 83

The Court has thus made a substantial contribution to the expansion of the powers of the United Nations, irremediably entrenching changes, whether or not initially politically driven. Thus it affirmed the Organization’s international personality in the Reparation for Injuries case, and the expansion of the functions and powers of 79

Admission of a State to the United Nations (Charter, Article 4) [1947–8] ICJ Rep 57. Nuclear Weapons (n 4) para 19. 81 Reparation for Injuries (n 35) 182; Use by a State of Nuclear Weapons (n 64), para 25: ‘[T]he necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as “implied” powers.’ The principle of implied powers was first intimated by the Permanent Court of International Justice to the International Labour Organization in its Advisory Opinion of 23 July 1926 (Competence of the International Labour Organisation to Regulate Incidentally the Personal Work of the Employer (1926) PCIJ Ser B No 13). In Jurisdiction of the European Commission of the Danube the Court noted: ‘As the European Commission is not a State but an institution with a special purpose it only has the functions bestowed upon it by the Statute with a view to fulfilment of this purpose but it has the power to exercise those functions to the fullest extent’ ((1927) PCIJ Ser B No 14, 64). 82 State of Missouri v Holland 252 US 416, 433 (1920). 83 Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) [1950] ICJ Rep 4, Dissenting Opinion of Judge Azevedo, 23; see also Dissenting Opinion of Judge Alvarez at 18: ‘[I]t is necessary when interpreting . . . the Charter . . . to look ahead.’ 80


The Law of Treaties

41

the political organs in the field of international peace and security in the Certain Expenses case, noting in the latter case: ‘[w]hen the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the UN, the presumption is that such action is not ultra vires.’84 It also bolstered the broad powers of the General Assembly in the Wall case by confirming the legality of its actions under the Uniting for Peace resolution and restricting the limitations of its powers under Article 12 of the Charter. Finally, it gave the Security Council considerable leeway in affirming that it could take binding decisions outside Chapter VII in the Namibia case. But whereas the prime concern in the past had revolved around how to expand the competence and powers of international bodies vis-à-vis restrictive assertions of sovereignty by member states, one would do well today to turn to Hackworth’s dissent in which he warned that ‘[p]owers not expressed cannot freely be implied. Implied powers flow from a grant of express powers, and are limited to those that are “necessary” to the exercise of powers expressly granted.’85 Thus the Appeals Tribunal in the Tadić case, while clearly relying on a teleological interpretation of its own Statute, preferred to find the legal basis for the Tribunal’s creation in the specific powers of the Council under Chapter VII, Article 41, rather than resort to the more open-ended basis of Article 24 which establishes the general powers of the Council, as the ICJ had done in Namibia, though in doing so it instrumentalized justice as only a means for achieving peace.86 As to the intention of the parties in treaty interpretation, the Court interestingly considered that the fact that the General Assembly had taken the initiative in respect of the Genocide Convention, had drawn it up and opened it for signature and accession by states within its halls, and that ‘express provisions of the Convention (Articles XI and XVI) associate the General Assembly with the life of the Convention’, meant that the intention of the General Assembly, the objects it pursued and its will when interpreting the Convention had to be ascertained in addition to that of the parties, even though the UN was not a signatory.87 In short, the Convention was to be seen as one of the means of effectuating the human rights purposes of the UN Charter and constituted a permanent interest of direct concern to the United Nations which had not disappeared with the entry into force of the Convention. As pointed out, the UN had a ‘legal interest’ independent of, though in parallel with, the contracting parties, in the interpretation and implementation of the public interests reflected therein.88 In its recent Kosovo Advisory Opinion, the Court recalled the factors relevant to interpretation of Security Council resolutions in examining the unilateral 84 Certain Expenses (n 63). See also Effect of Awards of Compensation made by the United Nations Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47. 85 Reparation for Injuries (n 35) 198. 86 Prosecutor v Dusko Tadić ‘Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction’ (Appeal Chamber) (2 October 1995) IT-94-1-AR72 (ICTY), paras 32–6. 87 Reservations to the Genocide Convention (n 60) 19. 88 See P Weis, ‘The 1967 Protocol Relating to the Status of Refugees and Some Questions of the Law of Treaties’ (1967) 42 BYIL 470.


42

The Development of International Law by the ICJ

declaration of statehood in the light of the object and purpose of Resolution 1244 (1999). While it considered that the rules on treaty interpretation embodied in Articles 31 and 32 of the VCLT could offer guidance, the Court nevertheless distinguished between Security Council resolutions and treaties, in that the former also required that other factors be taken into account. Thus the Court stated: Security Council resolutions are issued by a single, collective body and are drafted through a very different process than that used for the conclusion of a treaty. Security Council resolutions are the product of a voting process as provided for in Article 27 of the Charter, and the final text of such resolutions represents the view of the Security Council as a body. Moreover, Security Council resolutions can be binding on all Member States irrespective of whether they played any part in their formulation. The interpretation of Security Council resolutions may require the Court to analyse statements by representatives of members of the Security Council made at the time of their adoption, other resolutions of the Security Council on the same issue, as well as the subsequent practice of relevant United Nations organs and of States affected by those given resolutions.89

It will be noted that the ICJ in this Opinion relied inter alia on the subsequent practice of the international organization, as it had done in Namibia with regard to the evolution of the right to self-determination and the Wall case in respect of inter alia Article 12 of the Charter; the VCLT is of course concerned only with the subsequent practice of the states parties. The Court also adopted a systemic approach in the WHO Nuclear Weapons Opinion, in considering that its Constitution could only be interpreted by the logic of the overall system contemplated by the Charter which referred to the functional decentralization of the UN system.90 The ICJ’s evolutionary interpretation of constituent instruments has been adopted by some international organizations in responding to the need to internalize fundamental community values. In the WTO, the Appellate Body found by reference to Namibia that the term ‘exhaustible natural resources’ in Article XX(g) of the GATT 1994 was ‘by definition evolutionary’, and that it ‘must be read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment’.91 Other institutions have also considered their constituent instruments to be evolutionary in nature. The World Bank, coming under pressure with regard to the adverse human 89 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, [2010] ICJ Rep 403, 442, para 94. The Court recalled its previous statement in Namibia (n 62) para 114: ‘The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.’ 90 Use by a State of Nuclear Weapons (n 64) paras 21 and 26. 91 United States: Import Prohibition of Certain Shrimp and Shrimp Products AB WTO Report (12 October 1998) WT/DS58/AB/R, paras 129–30. See also EC Measures concerning Meat and Meat Products (Hormones), AB WTO Report (16 January 1998) WT/DS26/AB/R regarding the precautionary principle.


The Law of Treaties

43

rights and environmental impacts of its development funded projects, for example, has also, through practice and by means of a teleological approach, read the concept of sustainable development into its mandate.

3.4 Collective interests and reservations to treaties Such an approach to collective interest treaties led also to the Court’s departure from the traditional unanimity rule in respect of admissibility of reservations precisely in relation to a human rights treaty. In its 1951 Advisory Opinion on Reservations to the Genocide Convention the Court stated that ‘[t]he object and purpose of the Convention thus limit both the freedom of making reservations and that of objecting to them’.92 The criterion of compatibility with the object and purpose of the treaty for admissibility of reservations which the Court formulated was in large part to be incorporated into the VCLT, though the lack of clarity in respect of the relationship between the making of reservations and the objections made to them with regard to object and purpose has led to considerable debate. Yet ironically, it is precisely in the field of human rights law within which the reservations regime was elaborated that attempts to depart from the unitary nature of the VCLT were made. Though claiming not to be completely decoupled from the VCLT regime, the Human Rights Committee has stated that certain provisions are ‘inappropriate to address the problem of reservations to human rights treaties . . . [where the] principle of inter-State reciprocity has no place’. It asserted in addition the independent competence of expert or judicial organs to determine the admissibility of reservations along with the states parties and, more controversially, asserted the severability of an inadmissible reservation, ie incompatible with the object and purpose, from the rest of the treaty.93 In Armed Activities on the Territory of the Congo (DRC v Rwanda), however, the ICJ failed to draw conclusions from the special nature of the Genocide Convention in the matter of its jurisdiction. The DRC sought to show, inter alia, that the Rwandan reservation to Article IX of the Genocide Convention, which constituted a basis for the jurisdiction of the Court, was invalid inasmuch as the Genocide Convention contains norms of jus cogens and because it seeks to ‘prevent the . . . Court from fulfilling its noble mission of safeguarding peremptory norms’. Moreover, it argued that Rwanda’s reservation was incompatible with the object and purpose of the Convention, since ‘its effect is to exclude Rwanda from any mechanism for the monitoring and prosecution of genocide, whereas the object and purpose of the Convention are precisely the elimination of impunity for this serious violation of international law’.94 However, confirming its position in the Legality of Use of Force cases,95 the Court rejected the view that a reservation which bore on the Court’s jurisdiction was not 92

Reservations to the Genocide Convention (n 60) 24. See General Comment No 24(52) (1994) of the Human Rights Committee. 94 Armed Activities (DRC v Rwanda) (Jurisdiction and Admissibility) (n 34) paras 56–7. 95 See eg Legality of Use of Force (Yugoslavia v Spain) (Provisional Measures) [1999] ICJ Rep 761, paras 32–3; Legality of Use of Force (Yugoslavia v USA) (Provisional Measures) [1999] ICJ Rep 916, paras 24–5. 93


44

The Development of International Law by the ICJ

in conformity with the object and purpose of the Genocide Convention. The Court also stated: ‘The fact that a dispute relates to compliance with a norm having such a [ jus cogens] character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court’s Statute that jurisdiction is always based on the consent of the parties.’96 Here the Court departed from the views expressed by the human rights bodies.97 However, as some of the judges pointed out, the procedural nature of a treaty clause did not preclude it from being a part of the treaty’s object and purpose.98 Moreover, as Judge Koroma pointed out, Article IX of the Genocide Convention was indeed part of the object and purpose of the treaty, its very raison d’être, which is the prevention and punishment of the crime of genocide, because ‘it is the only avenue for adjudicating the responsibility of states’.99

3.5 Collective interests and state succession Outside the scope of issues regulated in the VCLT, it is worth noting the potential impact of arguments based on hierarchy on state succession.100 The dissolution of the Former Yugoslavia, the Soviet Union, and Czechoslovakia has provoked a debate on state succession, arising not only from the confusion surrounding these rules, which the 1978 Vienna Convention on the Succession of States in respect of Treaties101 has not served entirely to clarify, and the great variety of circumstances in which these rules are to be applied, but also in relation to the question of succession to human rights treaties. In the Application of the Genocide Convention case, the ICJ did not clarify the issue as it did not need to go into the question of state succession (shelved by Article 73 of the VCLT) since at all events Bosnia was a party to the Convention on the date of the filing of its application, but it did say that this was ‘[w]ithout prejudice as to whether or not the principle of “automatic succession” applies in the case of certain types of international treaties or conventions’ and recalled its 1951 Advisory Opinion with regard to the non-synallagmatic nature of the Genocide Convention.102

96 Armed Activities (DRC v Rwanda) (Jurisdiction and Admissibility) (n 34) paras 64–70. See also Jurisdictional Immunities (n 18) para 93, in which the Court considered that there could be no conflict between a rule of jus cogens and the customary law rules on State immunity since the latter were procedural in character. 97 See eg Loizidou v Turkey (Preliminary Objections) (1995) 102 ILR 662 ECtHR (GC); Kennedy v Trinidad and Tobago (No 845/1999) (UN Doc CCPR/C/67/D/845/1999) (UNHRC). 98 Armed Activities (DRC v Rwanda) (Jurisdiction and Admissibility) (n 34), Joint Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada, and Simma, para 21. 99 Armed Activities (DRC v Rwanda) (Jurisdiction and Admissibility) (n 34), Dissenting Opinion of Judge Koroma, paras 11–13. 100 Cf Andreas Zimmermann’s contribution to the present book at Chapter 4. 101 23 August 1978, 1956 UNTS 3. 102 Application of the Convention on the Prevention and Punishm]ent of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595, paras 20–4.


The Law of Treaties

45

However, in their Separate Opinions, Judges Parra-Aranguren, Shahabuddeen, and Weeramantry expressly stated that the humanitarian nature of the Genocide Convention and its object and purpose required a construction to be placed upon them to the effect that they constitute the expression of a unilateral undertaking by existing parties to treat successor states as parties with effect from the date of emergence into independence, thus avoiding any break in the protection it afforded, for its non-performance would adversely affect the people of Bosnia and Herzegovina.103 This was reiterated by the ICTY:104 It may be now considered in international law that there is automatic state succession to multilateral humanitarian treaties in the broad sense, ie, treaties of universal character which express fundamental human rights. It is noteworthy that Bosnia and Herzegovina itself recognized this principle before the ICJ.

The human rights treaty bodies, anxious to preserve the application of their respective treaties, have pushed for their automatic application to a seceding state— rather than an application which is dependent on a declaration of confirmation— from the date of its independence.105

3.6 The special nature of the United Nations Charter Finally, the ICJ has taken into account the special nature of the UN and the hierarchically superior nature of Charter obligations as reflected in Article 103 of the Charter, Article 30(1) of the VCLT and Article 59 of the Articles on State Responsibility. It has referred to Article 103 only in relation to treaties, thus quashing any interpretation of the provision that would include the primacy of the Charter over customary international law.106 In the Lockerbie (Provisional Measures) case, the Court grounded its dismissal of Libya’s request on the annihilation of the rights claimed for protection under the Montreal Convention107 relating to aut dedere aut judicare, which were trumped by Libya’s obligations under the mandatory Security Council Resolution 748 (1992) by virtue of Article 103, although later, in the Preliminary Objections phase, it referred to the critical date for the assumption of jurisdiction as being the date of 103 Bosnian Genocide (n 102), at 656, 637 and 645–50, respectively. In that case Yugoslavia disputed a Notice of Succession to the Genocide Convention by Bosnia and Herzegovina with effect from the date of its independence (6 March 1992), claiming that the rule of ‘automatic succession’ necessarily applied since the Genocide Convention was an instrument intended for the protection of human rights. 104 Prosecutor v Delalic et al ‘Judgment’ (Appeals Chamber) (20 February 2001) Case IT-96-21 (ICTY), para 111. 105 See eg General Comment No 26 on Continuity of Obligations (1997) (CCPR/C/21/Rev.1/ Add.8/Rev.1) 4. 106 See Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA) ( Jurisdiction and Admissibility) [1984] ICJ Rep 392, para 107, and Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v UK) (Libya v USA) (Provisional Measures) [1992] ICJ Rep 3 and 114, respectively. 107 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971, 974 UNTS 177.


46

The Development of International Law by the ICJ

Libya’s deposit of its application, which preceded Security Council Resolution 748. Article 103 was subsequently to be relied upon, inter alia, in the judgments of the Luxembourg Court of First Instance in the Kadi and Yusuf cases108 in order to override the provisions of human rights treaties, other than those strictly of a jus cogens or peremptory character. But at the same time, the ICJ has set limits to Security Council resolutions. In the Namibia Opinion, the Court, expressly upholding the General Assembly’s right to terminate the South West Africa Mandate on account of material breach, nevertheless implicitly relied on Article 60(5) of the VCLT constituting an exception to the suspension and termination of treaties following a material breach flowing from the special nature of treaties with a humanitarian objective. It held that the obligations of states flowing from a Security Council resolution (276 (1970)) not to enter into treaty relations with South Africa could not ‘be applied to certain general conventions such as those of a humanitarian character, the nonperformance of which may adversely affect the people of Namibia’.109

4. The ICJ and the unity of the international system There has been a tendency to decry the trend towards fragmentation and compartmentalization of particular sectoral and functional fields of international law which have purportedly become self-contained, and to query whether one can still refer to a comprehensive and uniform system of general international law. The VCLT contains some formal legal techniques to cope with the normative conflicts that may arise between regimes on the basis of status or hierarchy ( jus cogens and Article 103 of the Charter), and temporality (Articles 30 and 41 of the VCLT). The principle of specificity (lex specialis) was not incorporated in the VCLT.110 Alongside fragmentation, however, there has been a very visible process of linking up various areas which in the past were hermetically sealed off from one another.111 The VCLT proposes a rule tending towards harmonization rather than exclusion based on relationships of priority (Article 31(3)(c)) expressing what could be called a principle of ‘systemic integration’. These principles have been incorporated in the study carried out by the ILC on the topic of fragmentation of international law.112 108 Kadi v Council and Commission [2005] ECR II-3649; Yusuf & Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533. 109 Namibia (n 62) 56. 110 See ILC, Fifty-Eighth Session, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Report of the Study Group of the International Law Commission, finalized by M Koskenniemi (A/CN.4/L.682, 13 April 2006). 111 See V Gowlland-Debbas, ‘Issues Arising from the Interplay between Different Areas of International Law’ (2010) 63 Current Legal Problems 597. 112 ILC Fragmentation Report (n 110) paras 107 and 480. W Mansfield states in his study on the interpretation of treaties in the light of Art 31(3)(c), which was integrated into the finalized report: ‘From having been a series of distinct conversations in separate rooms, the process of treaty-making is now better seen as akin to a continuous dialogue within an open-plan office’: see W Mansfield, ‘The interpretation of treaties in the light of “any relevant rules of international law applicable in the relations between the parties” (article 31(3)(c) of the Vienna Convention on the Law of Treaties), in


The Law of Treaties

47

I would like to turn to the Court’s contribution to this process and in particular to the way it has dealt with the conflict and linkages between different fields of international law in the context of the law of treaties. The PCIJ had already had occasion to endorse both the lex specialis and the lex posterior rule when faced with two separate instruments bearing on its jurisdiction.113 Generally speaking, as Chinkin and Boyle have pointed out, ‘the case-law of the International Court of Justice suggests that where possible it prefers an integrated conception of international law to a fragmented one’,114 although it must be said that it has also given impetus to the concept of self-contained regimes in the framework of state responsibility.115 One valuable and innovative contribution the Court has made, subsequently followed by the human rights treaty bodies, has been its demonstration of the continuing applicability of human rights in armed conflict, as well as its underlining of the unity and indivisibility of human rights treaties. It will be recalled that the VCLT excludes from its scope the question of the continuing existence of treaties in armed conflict (Article 73). In its Nuclear Weapons Opinion, the Court, having confirmed the continued applicability of the International Covenant on Civil and Political Rights (ICCPR)116 in time of armed conflict (outside of derogations), maintained nevertheless that any interpretation of the right to life was to be done in the light of the lex specialis of humanitarian law.117 It is unfortunate that in this Opinion the Court utilized the concept of lex specialis in an exclusionary fashion in order to dismiss the relevance of human rights law altogether with regard to the legality of nuclear weapons, disregarding the fact that the notion of what amounts to ‘arbitrary’ deprivation of life under the ICCPR should also have been interpreted in the context of the treaty as a whole, in the light of its object and purpose, and against constantly evolving standards, for the ICCPR has been acknowledged as a living instrument.118 However, in its Advisory Opinion in the Wall case, the Court took a leap forward in also accepting the principle of complementarity:

the context of general developments in international law and concerns of the international community’, Doc ILC(LVI)/SG/FIL/CRD.3/Rev. 1 (2004), at 7. 113 See Mavrommatis (n 39), in which the PCIJ upheld the special and more recent agreement, in this case the 1923 Protocol XII of the Treaty of Lausanne, over the 1922 Mandate for Palestine. 114 A Boyle and C Chinkin, The Making of International Law (Oxford: OUP, 2007) 211. On Art 31(3)(c) see C McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279. 115 United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, para 86. 116 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171. 117 Nuclear Weapons (n 4) 240, para 25. 118 See the link made by the Human Rights Committee between the right to life and the corresponding duty of states to prevent war, genocide, and other forms of mass violence (Comment no 6/16 (1982)). The Court did not consider the general rules on environmental law to have displaced the more specific rules on the use of force (Boyle and Chinkin (n 114) 251). This reference to the principle of the lex specialis by the ICJ entered into the initial work of the ILC on the Effect of Armed Conflict on Treaties, but then disappeared from the text. See the second and third reports of the former Special Rapporteur, Ian Brownlie (UN Docs A/CN.4/570, 16 June 2006 and A/CN.4/578, 1 March 2007).


48

The Development of International Law by the ICJ

As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.119

This passage was reiterated in the Congo v Uganda case,120 demonstrating conclusively that international humanitarian law and human rights operate side by side during an armed conflict. Moreover, in these cases, as well as in the subsequent Georgia v Russia case, the Court also accepted the extraterritorial nature of human rights instruments, essential to their application in an international armed conflict. The Court stated that in the silence of the Convention on the Elimination of Racial Discrimination (CERD)121 as to its territorial application, its provisions ‘generally appear to apply, like other provisions of instruments of that nature, to the actions of a State party when it acts beyond its territory’.122 This has opened the door to a proliferation of cases before the human rights treaty bodies dealing with human rights in armed conflict situations. The Human Rights Committee has equally moved away from the lex specialis articulation of the relationship between international human rights law and international humanitarian law in its General Comment No 31; the Inter-American Commission and Court have interpreted and even applied IHL, while the European Court of Human Rights has gone further in applying human rights law exclusively in time of armed conflict—admittedly in an internal armed conflict situation and in the absence of a derogation under the European Convention on Human Rights.123 In Gabčíkovo-Nagymaros, the Court considered that in addition to the 1977 Treaty, the rules of which were lex specialis, the relationship between the parties was also determined by the rules of other relevant conventions to which the two states were party, and by the rules of general international law, including the rules of state responsibility on which it relied.124 The human rights treaty bodies have also referred to the rules of interpretation of Article 31(3)(c) of the VCLT, in considering that they are bound to take into account ‘any relevant rules of international law applicable in the relations between

119

Wall case (n 19) para 106. Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168, para 216. The Court found that both massive human rights violations and grave breaches of international humanitarian law had been committed by Ugandan military forces on the territory of the DRC. 121 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195. 122 See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia) (Provisional Measures) [2008] ICJ Rep 353, para 109. 123 See eg Isayeva,Yusupova and Bazayeva v Russia (Application nos. 57947/00, 57948/00 and 57949/00) Judgment of 24 February 2005 (ECtHR). 124 Gabčíkovo-Nagymaros (n 67) para 132. 120


The Law of Treaties

49

the parties’, including international humanitarian law.125 Such methods of interpretation have been resorted to by other bodies, including the WTO.126 However, it has been pointed out that there are limits to such a method of interpretation. Constraints on the ICJ’s resort to Article 31(3)(c) were invoked in the Oil Platforms case in which it considered whether the measures justified by the United States under Article XX(1)(d) of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran as measures necessary to protect its essential security interests, constituted an unlawful use of force by reference to customary international law and the UN Charter.127 Judge Buergenthal was concerned that the Court, by relying on such methods of treaty interpretation, had thus widened the scope of its jurisdiction, while Judge Higgins stated: ‘The Court has, however, not interpreted [the treaty] by reference to the rules on treaty interpretation. It has rather invoked the concept of treaty interpretation to displace the applicable law.’128 The Court has considered the relationship between treaty law and customary international law, the North Sea Continental Shelf case being the classic pronouncement in which the Court confirmed the role of treaties in the crystallization of emerging norms and the codification of customary law, while upholding the possibility of a provision of a ‘fundamentally norm-creating character’ in a multilateral treaty to generate new customary law.129 Thus the Court, in each case in which it has had to deal with a provision of the VCLT, has considered that the provision in question had achieved customary law status. But it has also confirmed the continuing separate or parallel existence of customary law rules even as between the treaty parties.130 Customary law rules can thus affect such conventional obligations. In its Nuclear Weapons Advisory Opinion, the Court did indeed affirm that the customary law dual conditions of necessity and proportionality applied to Article 51 of the UN Charter.131 This is an important affirmation that customary law rules can supplement or serve as interpretative tools for Charter obligations. The ICJ has also had to look at the relationship between the law of treaties and the law of state responsibility excluded by Article 73 from the scope of the VCLT which did not cover the rules relating to non-performance of treaty obligations. In

125 See eg Loizidou v Turkey (Merits) 40/1993/435/514 (28 November 1996) (ECtHR), para 43; Coard et al v US Judgment of 29 September 1999 (IACtHR), para 40. 126 For example, WTO, European Communities—Measures affecting the Approval and Marketing of Biotech Products, Reports of the Panel, 29 September 2006 (WT/DS291/R, WT/DS292/R, WT/DS 293/R). 127 Oil Platforms (Iran v USA) [2003] ICJ Rep 161, paras 41–2. 128 Oil Platforms (n 127), Separate Opinions of Judges Higgins and Buergenthal, 238, paras 49 and 279, para 22, respectively. See D French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’ (2006) 55 ICLQ 281, 286–91. 129 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands) [1969] ICJ Rep 3, para 71. 130 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14, paras 175–9. 131 Nuclear Weapons (n 4) 242–3, paras 28–33.


50

The Development of International Law by the ICJ

Gabčíkovo-Nagymaros, the Court played a role in the unification of codification efforts in international law; it distinguished between the law of treaties and the law of state responsibility while at the same time demonstrating the points of contact between the two.132 As has been seen, Hungary, in addition to relying on the law of treaties, namely the impossibility of performance of the 1977 Treaty, the occurrence of a fundamental change of circumstances, and the material breach of the Treaty by Czechoslovakia, had justified its suspension and termination of the 1977 Treaty on grounds of ecological necessity, thus drawing on the law of state responsibility; whereas Slovakia had approached the treaty as a self-contained regime containing its own rules on responsibility. In looking at the relationship between a circumstance precluding wrongfulness and termination of a treaty, the Court, while demonstrating the points of contact between these two functional regimes, considered that the law of state responsibility and the law of treaties had distinct scopes: the determination of whether a convention is or is not in force and whether all conditions to suspend it or denounce it have been fulfilled was to be made on the basis of the law of treaties; but the extent to which a state’s conduct was incompatible with the treaty was to be made under the law of state responsibility, regardless of the nature of the obligation involved.133 Hence a distinction had to be drawn between the effect of circumstances precluding wrongfulness and the termination of the obligation itself. [E]ven if a state of necessity is found to exist, it is not a ground for the termination of a treaty. It may only be invoked to exonerate from its responsibility a State which has failed to implement a treaty. Even if found justified, it does not terminate a treaty . . . As soon as the state of necessity ceases to exist, the duty to comply with treaty obligations revives.134

This distinction also emerged clearly from the 1990 Rainbow Warrior arbitration, in which the Tribunal held that both the law of treaties and the law of state responsibility had to be applied, the former to determine whether the treaty was still in force, the latter to determine what the consequences were of any breach of the treaty while it was in force, including the question whether the wrongfulness of the conduct in question was precluded.135 At the same time, the case of Gabčíkovo-Nagymaros demonstrates the Court’s concern with the stability of treaty relations. Addressing Hungary’s grounds for termination of the 1977 Treaty with Czechoslovakia, the Court confirmed its previous ruling as to the need to prove the fundamental character of the change of circumstances; it observed that many circumstances invoked by Hungary to justify unilateral termination of the 1977 Treaty were not ‘of such a nature . . . that

132

Gabčíkovo-Nagymaros (n 67). Gabčíkovo-Nagymaros (n 67) paras 47 and 101. Art 73 of the Vienna Convention expressly excludes from its scope the effects of a denunciation or suspension of a treaty contrary to the conditions it lays down. 134 Gabčíkovo-Nagymaros (n 67) para 101. 135 Rainbow Warrior (New Zealand/France) (1990) 20 RIAA 215 para 75. 133


The Law of Treaties

51

their effect would radically transform the extent of the obligations still to be performed’.136 As for supervening impossibility of performance, the Court pointed out that the VCLT limits the possibility of invoking this ground to situations featuring the ‘permanent disappearance or destruction of an object indispensable for the execution of the treaty’, which was not the case here. Moreover, impossibility of performance could not be invoked by Hungary in relation to its own failure to perform its obligations.137 It equally adopted a restrictive view of termination of treaties, underlining that ‘it is only a material breach of the treaty itself, by a State party to that treaty, which entitles the other party to rely on it as a ground for terminating the treaty’. The violation of other treaty rules could constitute a ground for the taking of certain measures, such as countermeasures, but not for termination of the treaty.138 It has also underlined in a number of cases the importance of the rule pacta sunt servanda and the principle that a treaty must be performed in good faith. In Gabčíkovo-Nagymaros, the Court pointed out that ‘[w]hat is required in the present case by the rule pacta sunt servanda is that the Parties find an agreed solution within the co-operative context of the Treaty’.139 The Court stated that it would set a precedent with disturbing implications for treaty relations and the integrity of the rule pacta sunt servanda if it were to conclude that a treaty in force between States, which the parties have implemented in considerable measure and at a great cost over a period of years, might be unilaterally set aside on grounds of reciprocal noncompliance. It would be otherwise, of course, if the parties decided to terminate the Treaty by mutual consent. But in this case, while Hungary purported to terminate the Treaty, Czechoslovakia consistently resisted this act and declared it to be without legal effect.140

5. Concluding remarks This contribution has attempted to give an impressionistic view of the impact the ICJ has had on the development of the contemporary law of treaties. Generally speaking, it may be said that the contribution of the ICJ’s case law to the new exigencies of international law-making has been an important one. At the same time, the Court has been conscious of the limits of such an approach and of the necessity of reinforcing the traditional law of treaties. While, therefore, it has been sensitive to the need to approach treaty relations against the background of an evolutive international system, it has also, as in the Gabčíkovo-Nagymaros case, upheld and reaffirmed the principle that every treaty in force is binding upon the parties and must be performed in good faith, and has narrowly interpreted justifications for opting out of treaty obligations.

136

137 Gabčíkovo-Nagymaros (n 67) paras 102–3. Gabčíkovo-Nagymaros (n 67) para 104. Gabčíkovo-Nagymaros (n 67) para 106. 139 Gabčíkovo-Nagymaros (n 67) para 142. On the obligation to negotiate in good faith, see also Nuclear Weapons (n 4) 26–34, para 99. 140 Gabčíkovo-Nagymaros (n 67) para 114. 138


52

The Development of International Law by the ICJ

Though increasingly called upon by states to address the hard questions that are of concern to the international community as a whole—be they related to armed conflicts or serious violations of human rights—the ICJ, an institution set up in a world where bilateral and subjective relations between states continue to prevail, has not always been able to respond to contemporary expectations. As an inter-state Court whose jurisdiction is based on consent, it is also not able to accommodate the voices of non-state actors, which are today important vehicles of the ‘dictates of the public conscience’, nor international organizations in contentious cases, despite the important place they occupy today. Yet the Court has also on several occasions been conscious that in interpreting or applying the law, it could not make an abstraction of the human objectives behind the rules nor of the values and finalities which impregnate the international legal system. In the realm of treaty-making it has been conscious of the impact of the substantive content of a treaty on its formal and procedural rules and it is particularly in relation to furthering the concept of treaties with a collective interest that it has been most responsive to current developments and the needs of the international community.


4 The International Court of Justice and State Succession to Treaties: Avoiding Principled Answers to Questions of Principle Andreas Zimmermann

1. Introduction Much like the question of state responsibility, the issue of state succession to treaties (and the preceding question of state identity/continuity versus state succession) does not relate to a specific substantive question or to the substance of specific treaties. Rather, it raises fundamental questions of general relevance relating to the personality of the state, and to the process by which a successor state may become bound by the treaties its predecessor state previously entered into. These issues have occupied international lawyers for centuries, and—notwithstanding occasional, but greatly exaggerated, reports about the death of state succession—were propelled back onto the agenda following the collapse of the Soviet Union and Yugoslavia in the early 1990s. State succession and state identity were traditionally considered to be governed by general international law or in agreements addressing specific instances of state succession. In the 1970s, when the process of decolonization—as the most important practical and political challenge to the then existing rules—had largely been completed, the international community sought to codify general rules on state succession to treaties and eventually agreed on the multilateral regime set out in the 1978 Vienna Convention on the Succession of States in respect of Treaties (VCSST).1 However, as is well known, that multilateral framework has not proved overly successful: the Convention entered into force in 1996, but at the time of writing, thirty-five years after its adoption, it has attracted no more than twenty-two states parties2 and its substance remains to a large extent controversial. Given this legal context, one might perhaps have expected the International Court of Justice (ICJ, or ‘the Court’), over the years, to have contributed in

1

23 August 1978, 1946 UNTS 3. For details see the information provided at <http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=XXIII-2&chapter=23&lang=en> (accessed 17 May 2013). 2


54

The Development of International Law by the ICJ

significant measure to the consolidation and clarification of the legal regime of state succession. However, for two reasons, the Court’s impact has been fairly limited. First, while state succession has been a major aspect of international relations since 1945, the number of ICJ cases pertaining to it has been relatively small. Second, and more importantly, when issues of succession have arisen, the Court (with one exception3) has avoided addressing them in a principled way, opting instead to decide the underlying issues on a case-by-case basis, be it for reasons of judicial expediency or due to a lack of consensus among the members of the bench. As a consequence, the legal regime of state succession remains controversial to this date. Indeed, recent instances of international practice—such as the collapse of the Soviet Union, the dissolution of the former Yugoslavia in the 1990s (together with the subsequent separation of Montenegro from the State Union of Serbia and Montenegro in 2006 and the process of secession of Kosovo from Serbia), the dissolution of Czechoslovakia in 1993, German reunification in 1990 and the unification of the two Yemeni states in 1990, as well as most recently the separation of South Sudan from Sudan in 2012—have not followed any hard and fast legal rules. Against this background, the subsequent sections of this contribution evaluate the Court’s jurisprudence on questions of state succession to treaties. While the main body of the chapter (section 3) analyses issues of succession proper, section 2 revisits the Court’s approach to the preliminary question of distinguishing state succession from state identity/continuity.

2. Distinguishing state succession from state identity/continuity in the jurisprudence of the ICJ Questions of state succession only arise if ‘one State [is replaced] by another in the responsibility for the international relations of territory’.4 As such, a ‘replacement’ requires in most cases (the cession of territory being the sole exception) a rupture in the state’s personality. Accordingly, succession needs to be distinguished from instances of state identity and continuity, in which treaties simply continue to apply in relation to the ‘new state’ (or rather, the same legal subject in its new incarnation). Yet while the distinction is clear in theory, its application can at times be difficult, as no firm criteria for distinguishing succession from continuity/ identity exist. Issues of state identity/continuity versus state succession are of particular relevance in proceedings before the ICJ. Of course, the decision on this preliminary question will often determine whether a specific treaty between two states parties applies as a matter of substantive international law. However, in addition, where the Court’s jurisdiction is based on a compromissory clause,5 it may be crucial to 3

See 3.4, for comment on the Court’s treatment of localized treaties and boundaries. VCSST, Art 2(1)(b). 5 The Court has yet to deal with the issue as to whether declarations under Art 36, para 2 ICJ Statute are subject to state succession; for the view that Art 36, para 2 declarations are indeed subject to 4


State Succession to Treaties

55

determining whether the Court has jurisdiction to entertain the case in the first place. In most instances a claim of state identity is either generally accepted by the international community at large or, at the very least, is not challenged by either side. In these cases, the Court typically does not feel the need to address it in any detail. For example, in the recent Case Concerning Jurisdictional Immunities of the State between Germany and Italy,6 the Court could simply take it for granted that the Federal Republic of Germany (the claimant) was identical to the state responsible for violations of international law during World War II (which the Court referred to as the ‘German Reich’).7 As Germany’s conduct during World War II was not within the Court’s jurisdiction ratione temporis,8 any pronouncement would have been by way of obiter dictum. The situation was somewhat less obvious in the Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia).9 The relevant treaty eventually providing for the Court’s jurisdiction, namely the Convention on the Elimination of Racial Discrimination (CERD),10 had been ratified by the USSR in 1969. Yet, the position and practice of the successor states of the USSR as to the identity of the USSR on the one hand and that of the Russian Federation on the other, had been, to say the least, equivocal and less than uniform.11 Nevertheless, with regard to the treaty at hand, the applicant, Georgia,12 had claimed that ‘the Russian Federation was a party to CERD “by virtue of its continuation of the State personality of the USSR”’,13 a claim that was not disputed by the Russian Federation. This led the Court to find that ‘the Russian Federation, as the State continuing the legal personality of the Union of Soviet Socialist Republics’, was accordingly a party to the Convention on the Elimination of All Forms of Racial Discrimination (CERD) without reservation.14 In the case of the relationship between the ‘former Yugoslavia’ (ie the Socialist Federal Republic of Yugoslavia or ‘SFRY’) and the Federal Republic of Yugoslavia

applicable rules of state succession, see, J Verzijl, International Law in Historical Perspective, Part VIII Inter-State Disputes and Their Settlement (Dordrecht: Martinus Nijhoff, 1974) 424–6. But see also R Szafarz, The Compulsory Jurisdiction of the International Court of Justice (Leiden: Brill, 1993) 79. For a more detailed analysis of the matter see A Zimmermann, Staatennachfolge in völkerrechtliche Verträge— zugleich ein Beitrag zu den Möglichkeiten und Grenzen völkerrechtlicher Kodifikation (Heidelberg/Berlin, Springer, 2000) 660 ff. 6 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, <http://www.icj-cij.org/docket/files/143/16883.pdf> (accessed 17 May 2013). 7 As to the issue of the identity of the Federal Republic of Germany with the German Reich, see generally Zimmermann (n 5) 82–3 with further references. 8 Jurisdictional Immunities (n 6) paras 42–8. 9 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia) (Provisional Measures) [2008] ICJ Rep 353. 10 21 December 1965, 660 UNTS 195. 11 Zimmermann (n 5) 85–97. 12 As to the situation of Georgia vis-à-vis CERD see 3.2. 13 Georgia v Russia (n 9) para 87. 14 Georgia v Russia (n 9) para 105.


56

The Development of International Law by the ICJ

(‘FRY’, reconstituted in 2003 as State Union of Serbia and Montenegro) the Court’s position, taken in various cases and various phases of the same cases, was, to use a famous phrase used by the Court itself in a related context, ‘not free from legal difficulties’.15 After all, the Court’s position was based on and related to the status of ‘Yugoslavia’ within the system of the United Nations, whose political organs had taken a series of decisions that were contradictory.16 While the political organs had found that the ‘former Yugoslavia’ had ceased to exist, the only consequence of this was that it was no longer able to participate in the work of the General Assembly.17 It is against this background that the Court, in its order on provisional measures of 8 April 1993, in the Bosnian Genocide case, made reference to Article 35(2) of the Statute of the ICJ,18 which implied that the respondent state ‘Yugoslavia’ did not have access to the Court under Article 35(1) and that it was accordingly no longer a member of the United Nations. The resultant implication was that the FRY, founded on 27 April 1992, was not identical with the SFRY. This was confirmed in the Court’s second order on provisional measures in the same case where it considered whether the FRY might be bound by a 1919 treaty on the protection of minorities concluded by the Kingdom of the Serbs, Croats and Slovenes ‘as successor of that Kingdom’19 rather than being identical with said Kingdom. In its 1996 Judgment on jurisdiction in the Bosnian Genocide case,20 the Court no longer relied on Article 35(2), which it did not mention at all; instead it simply took it for granted that the FRY continued to be a member of the United Nations which, by necessary implication, presupposed that the FRY was identical with the former Yugoslavia, since the FRY had, at that time, not (yet) been admitted to the organization. In 2004, when dealing with several cases brought by the FRY against various NATO states, the Court once again made a ‘demi-tour’ when determining that the FRY, which in the meantime had changed its name to Serbia and Montenegro, had not been a member of the United Nations at the relevant time. Here again, the reasoning of the Court presupposed that the FRY/Serbia and Montenegro was not

15 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Provisional Measures) [1993] ICJ Rep 3, para 18. 16 See, for such a proposition, KG Bühler, State Succession and Membership in International Organizations: Legal Theories versus Political Pragmatism (Dordrecht: Martinus Nijhoff, 2001) 192–203. 17 For consideration of the whole series of these contradictory decisions and judgments see inter alia V Dimitrijević and M Milanović, ‘The Strange Story of the Bosnian Genocide Case’ [2008] Leiden JIL 65; S Rosenne, ‘Capacity to Litigate in the International Court of Justice: Reflections on Yugoslavia in the Court’ (2009) 80 BYIL 217, as well as most recently F Bordin, ‘Continuation of Membership in the United Nations Revisited: Lessons from Fifteen Years of Inconsistency in the Jurisprudence of the ICJ’ (2011) 10 Law and Practice of International Courts and Tribunals 315. 18 Bosnian Genocide (Provisional Measures) (n 15) 14–16. 19 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Further Provisional Measures) [1993] ICJ Rep 325, 340; emphasis added. 20 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595.


State Succession to Treaties

57

the same state as the SFRY.21 While one might think that this reasoning would have necessitated a reversal of the Court’s 1996 finding in the Bosnian Genocide case, the Court found a way around this when the issue came before it in 2007.22 It determined that its 1996 Judgment amounted to res judicata and, as such, the Court was not required to review its 1996 finding on whether the SFRY and the FRY were the same, a finding which the Court itself had reversed in its 2004 Judgments. Finally, and most recently, in its 2008 Judgment on jurisdiction in the Croatian Genocide case, the Court found on the one hand that Serbia ought to be considered one of the successor states to the SFRY emerging from the dissolution of that state, rather than the sole continuing state maintaining the personality of the former SFRY.23 It may be noted that by the time the Judgment was rendered, both the applicant and the respondent state had taken the same position on the matter and the FRY had been admitted to the United Nations as a new state in 2001. On the other hand, in both the Bosnian Genocide and Croatian Genocide, Serbia was considered to be identical with the FRY/Serbia and Montenegro24 and thus remained a respondent, while Montenegro, having separated from Serbia and Montenegro in 2006, was considered by the Court as ‘a new State admitted as such to the United Nations’. As such it was held not to continue the international legal personality of Serbia and Montenegro, nor was it possible for it to acquire the status of a respondent in the case by virtue of state succession.25 On the whole, what comes out of the jurisprudence on the crucial distinction between identity versus succession is that the Court’s approach was not based on objective facts, such as the size of the remaining territory or that of its population, but rather on the question of whether and to what extent a possible claim of identity was accepted by the international community at large and, in particular, by the United Nations. The view of the Court would appear, moreover, to have been informed by the view of the specific parties to disputes pending before the Court.

3. Treaty succession in the jurisprudence of the ICJ While identity and continuity lead to a clear result (namely the continued application of the treaty for the continuator state), the legal regime governing instances of state succession is controversial. While not a common feature of its jurisprudence, the Court has had to confront questions of succession in a number of cases, and

21 Legality of the Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections) [2004] ICJ Rep 279, para 79. 22 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43. 23 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Preliminary Objections) [2008] ICJ Rep 412. 24 Bosnian Genocide (Merits) (n 22) para 77 and Croatian Genocide (Preliminary Objections) (n 23) para 29. 25 Croatian Genocide (Preliminary Objections) (n 23) para 33.


58

The Development of International Law by the ICJ

with increasing frequency. Its decisions, at least since 1978, have to be seen against the background of the VCSST, whose (in some respects controversial) approach the Court might have very well confirmed or rejected. Yet, on balance, and with the exception of the specific problem of localized treaties,26 the Court seems to have avoided taking a principled stance.

3.1 General questions On several occasions, the Court in fact either deliberately left open the question of succession to specific treaties or was not called upon to decide the matter for other reasons. As a consequence, a number of proceedings that might have raised questions of succession yielded no authoritative answer. Thus, in the Temple of Preah Vihear case,27 Cambodia claimed that it had succeeded to a French-Siamese Treaty on Friendship and Commerce of 1937,28 which in turn had made reference to the 1928 General Act.29 Thailand, for its part, rejected any such possibility,30 relying on a statement by the UN Legal Counsel31 which in 1947 had taken the position that, in his view, ‘ . . . it has been clear that no succession occurs in regard to rights and duties of the old State which arise from political treaties such as treaties . . . of pacific settlement’. Here, the Court left the issue of a possible succession to the 1928 General Act open.32 In 1973, in Trial of Pakistani Prisoners of War,33 Pakistan similarly claimed that the rights and obligations arising under the 1928 General Act for India had devolved upon Pakistan by virtue of the 1947 Indian Independence (International Arrangements) Order and the devolution agreements contained therein,34 despite the fact that Pakistan had never submitted a declaration of succession.35 India, not surprisingly, countered that treaties such as the General Act providing for the peaceful settlement of disputes were either ipso facto excluded

26

See 3.4. Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections, Judgment) [1961] ICJ Rep 17. 28 LNTS, vol. 201, S 113. 29 General Act of Arbitration (Pacific Settlement of International Disputes) Geneva, 26 September 1928. As to the wording of the relevant treaty clause, see ICJ Pleadings, Temple of Preah Vihear, vol. I, 140 ff; see in that regard JG Merrills, ‘The International Court of Justice and the General Act of 1928’ (1980) 39 Cambridge Law Journal 137, 140 ff. 30 Merrills (n 29) 145 ff. 31 Cf O Schachter, ‘The Development of International Law through the Legal Opinions of the United Nations Secretariat’ (1948) 25 BYIL 91, 106. 32 Temple of Preah Vihear (n 27) 35. 33 Trial of Pakistani Prisoners of War (Pakistan v India) (Order) [1973] ICJ Rep 347. See K OellersFrahm, ‘Trial of Pakistani Prisoners of War Case’ in R Bernhardt (ed), Max Planck Encyclopedia of Public International Law, vol II (Oxford: OUP, 2002) 280, and specifically with regard to treaty succession concerning the General Act, M Nawaz, ‘Has the ICJ Jurisdiction in the POWs Case?’ [1973] 13 Indian Journal of International Law 251, 259–61. See further Merrills (n 29) 141 ff. 34 See, as to the relevance of such devolution agreements, ICJ Pleadings, Trial of Pakistani Prisoners of War, 80 ff, as well as Zimmermann (n 5) 666 ff; see also ICJ Pleadings, Trial of Pakistani Prisoners of War, 51, 52 ff, and Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3, 16. 35 As to further issues of state succession arising during the case see Nawaz (n 33) 260–61. 27


State Succession to Treaties

59

from succession, or, at the very least, required a specific declaration of succession.36 Again, the Court did not have to deal with the matter, given that Pakistan discontinued the case in December 1973. In 1999, in the case concerning Legality of the Use of Force brought by the FRY against the Netherlands, the FRY relied, inter alia, on Article 4 of the 1931 Treaty of Judicial Settlement, Arbitration and Conciliation between the Netherlands and the Kingdom of Yugoslavia as a jurisdictional basis. The Netherlands took the position that the said treaty was no longer in force. It relied on the fact that it was not a party to the 1978 VCSST, which enshrines the principle of universal succession to treaties, and, moreover, on the fact that no mutual agreement had been reached between the Netherlands and the FRY on the continued validity of the 1931 Treaty. Once again, the Court was left in a position where it was not required to rule on the question of treaty succession. It did not need to address the issue during the provisional measures37 phase since this basis of jurisdiction was invoked only during the second round of oral argument, something the Court considered to seriously jeopardize the principle of procedural fairness and the principle of sound administration of justice.38 Nor did it address the issue in its 2004 Judgment on jurisdiction as it found that the applicant state lacked access to the Court, thereby rendering the secondary question of whether the 1931 Treaty was a basis for the Court’s jurisdiction moot.39

3.2 Universal treaty succession as customary law? Questions of succession have not always simply ‘disappeared’ during proceedings. In fact, the Court has on several occasions heard argument on what may be considered the most controversial question within the law of state succession to treaties, namely the claim that—outside the colonial context—successor states should generally be bound by treaties entered into by their predecessor state. As is well known, this ‘universal succession’ thesis is put forward in Article 34 of the VCSST, which provides: When a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor State continues to exist . . . any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed.

Yet even now, some thirty-five years later, it remains unclear whether this provision codified a pre-existing norm of customary international law,40 or whether it

36 Cf Statement of the Government of India in Continuance of its Statement of 28 May 1973 and in Answer to Pakistan’s Letter of 25 May 1973, ICJ Pleadings, Trial of Pakistani Prisoners of War, 139, 144–48. 37 Legality of Use of Force (Yugoslavia v Netherlands) [1999] ICJ Rep 542, para 43. 38 Use of Force (Yugoslavia v Netherlands) (n 37) para 44. 39 Legality of Use of Force (Serbia and Montenegro v Netherlands) (Preliminary Objections) [2004] ICJ Rep 1011, paras 114–25. 40 Zimmermann (n 5) 138–39, 166–73 with further references.


60

The Development of International Law by the ICJ

constituted a progressive development of international law.41 What is more, if the rule represented progressive development in 1978, it must be asked whether it has since ripened into a customary rule, notwithstanding the limited number of ratifications of the Convention.42 This highly contested issue has been argued by parties to disputes before the Court on various occasions. In the Gabčíkovo-Nagymaros case,43 Hungary claimed that there was no rule of succession which could operate in the absence of consent and argued that the ‘concept of automatic succession’ as contained in Article 34 of the VCSST had never been accepted by states as a statement of general international law.44 Slovakia, for its part, while acknowledging that there had been no agreement on succession to the relevant treaty concluded between Czechoslovakia (its predecessor state) and Hungary, relied on the rule as contained in Article 34, which it claimed applied in the case of dissolution and was supported by state practice.45 The Court did not find it necessary to enter into a discussion as to whether or not Article 34 reflected customary international law,46 instead basing its finding exclusively on the concept of localized treaties.47 During the various cases involving the dissolution of the former Yugoslavia, the parties on a number of occasions discussed whether Article 34 of the VCSST had by then acquired the status of customary international law, but the Court did not conclusively settle the matter. In the proceedings leading to the 1996 Judgment on jurisdiction in Bosnian Genocide,48 the Court found it unnecessary to decide whether or not the principle of ‘automatic succession’ applied across the board to various kinds of treaties or even whether it applied as regards certain types of international treaties or conventions.49 In the 2008 oral hearings on the merits in the Bosnian Genocide case, the issue resurfaced again.50 The Court, however, on the basis of the res judicata of the 1996 Judgment, found it was not required to address the matter.51 Finally, in the jurisdictional phase of the Croatian Genocide case, the ‘automatic succession’ thesis was once again argued. As will be discussed more fully below, the Court considered a 1992 declaration and a note emanating from the FRY as constituting, in the circumstances, a notification of succession52 and, as a consequence, observed that

41

42 Zimmermann (n 5) 300 ff, 369 ff. Zimmermann (n 5) 217–18. Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7. 44 Gabčíkovo-Nagymaros (n 43) para 119. 45 Gabčíkovo-Nagymaros (n 43) para 120. 46 Gabčíkovo-Nagymaros (n 43) para 123. 47 Gabčíkovo-Nagymaros (n 43) para 123; for further discussion of the latter issues see 3.4. 48 See on the one hand ICJ Pleadings, Bosnian Genocide (Preliminary Objections), CR 96/6, 29 April 1996, 8 ff (E Suy), 96/7, 32 ff (R Ètinski) pleading for the FRY, and on the other, CR 96/9, 20 ff (B Stern) pleading the matter for Bosnia and Herzegovina. 49 Bosnian Genocide (Preliminary Objections) (n 20) para 23. 50 See eg ICJ Pleadings, Bosnian Genocide (Merits), CR 2006/13, 9 March 2006 (A Zimmermann) 51 ff. 51 But see inter alia Separate Opinion of Judge Tomka, Bosnian Genocide (Merits) (n 22) 328 ff. 52 See 3.5. 43


State Succession to Treaties

61

the need does not arise for the Court further to address the arguments put to it by the Parties concerning the rules of international law governing State succession to treaties including the question of ipso jure succession to some multilateral treaties.53

One last instance where the issue of automatic succession could have become relevant was the previously mentioned case of Georgia v Russia, which was brought in response to alleged violations of CERD. Georgia’s predecessor state, the USSR, had ratified CERD. This might have enabled Georgia to argue in favour of automatic succession (which could also have helped to make a case for an extended application ratione temporis of the treaty54); yet since it had acceded to CERD after gaining independence, rather than submitting a declaration of notification with either a declaratory or constitutive effect, it did not even raise the matter. On the whole, it seems that the Court’s jurisprudence on the matter of automatic treaty succession is as inconclusive as state practice itself. It remains to be seen whether the issue might come up again in the future and whether the Court will seize the chance to tackle it. Accordingly, at least so far, the Court’s jurisprudence does not shed light on what remains one of the most controversial questions within the regime of treaty succession.

3.3 Automatic succession to human rights treaties? In the various cases involving successor states of the former Yugoslavia, succession to the Genocide Convention—that is, a treaty protecting an essential human right—was at the forefront of the legal debate, as the Court’s jurisdiction depended on Article IX of that Convention. This led the parties to discuss not only the issue of automatic treaty succession generally, but also the more specific issue of whether human rights treaties (at least) were subject to a regime of automatic succession. Indeed, such a view was popular not only among writers,55 but had been endorsed by various human rights treaty bodies, notably the Human Rights Committee.56 Given its above-described jurisprudence, it will come as no surprise that the Court has so far avoided dealing with the issue. It ought to be noted, however, that several judges have pronounced on the issue. Of particular interest is the Separate Opinion of Judge Weeramantry in the 1996 Judgment on jurisdiction in the Bosnian Genocide Case in which he set out a whole series of reasons why, from his point of view, treaties such as the Genocide Convention ought to be subject to a regime of automatic treaty succession.57 He argued, inter alia, that treaties such as the Genocide Convention can be distinguished from the majority of regular multilateral treaties since the former are,

53

Croatian Genocide (Preliminary Objections) (n 23) para 29. See 3.5. See eg M Kamminga, ‘State Succession in Respect of Human Rights Treaties’ (1996) 7 EJIL 469. 56 See notably Human Rights Committee, General Comment 26 (61): Continuity of Obligations, reproduced in (1995) 34 ILM 839. 57 See Separate Opinion of Judge Weeramantry, Bosnian Genocide (Preliminary Objections) (n 20) 640 ff. 54 55


62

The Development of International Law by the ICJ

unlike the Genocide Convention, not aimed primarily at protecting the interests of a state.58 Looking at the development of human rights he said that human rights and humanitarian treaties now transcend the concept of state sovereignty, so that human rights obligations cannot be seen as amounting to a derogation of sovereignty.59 Further, he argued that the Convention does not impose any new burden of state responsibility; in becoming a party to the Convention a state merely recognizes rights which already exist. The rights guaranteed by the Convention are, he wrote, already guaranteed by customary international law and as such their existence does not depend on any conventional obligation.60 He further went on to say that the rights in question are non-derogable and stressed the importance of avoiding a legal vacuum during periods of transition, pointing out that it is precisely during times of instability within a state that individuals are most in need of the protection offered by the Genocide Convention.61 When viewed in their entirety, Judge Weeramantry’s ideas do provide a conceptual basis for automatic succession of human rights treaties. Yet the reasons given in his Separate Opinion do not in themselves provide a convincing basis for establishing a new rule of customary law on the matter,62 at least not until backed by sufficient state practice. Moreover, it is also important to draw a clear distinction between substantive rights and the various procedural obligations that accompany human rights treaties, such as the duty to submit reports or to accept the jurisdiction of an international court, a distinction the Court has also drawn with regard to other matters such as the law of reservations to treaties. While the material rights contained in the Genocide Convention are now to be recognized as forming part of customary international law, it is clear from the current state of development of such law that the related procedural obligations can only ever arise from a specific treaty. For this reason the argument that the procedural provisions of the Genocide Convention form part of international customary law is not convincing. Furthermore, while the case can be made de lege ferenda that the protection of individuals’ rights is particularly necessary during periods of instability in a given state, this alone is not an adequate justification for the acceptance of the existence de lege lata of automatic succession to human rights treaties. State practice itself cannot be definitively construed as supporting automatic succession regarding human rights treaties. The lack of uniformity in practice is 58 See Separate Opinion of Judge Weeramantry, Bosnian Genocide (Preliminary Objections) (n 20) 645–46. 59 See Separate Opinion of Judge Weeramantry, Bosnian Genocide (Preliminary Objections) (n 20) 646, 647. 60 See Separate Opinion of Judge Weeramantry, Bosnian Genocide (Preliminary Objections) (n 20) 647–48. 61 See Separate Opinion of Judge Weeramantry, Bosnian Genocide (Preliminary Objections) (n 20) 649–52. 62 See Zimmermann (n 5) 559 ff. Indeed, Judge Weeramantry himself acknowledges that not all of his reasons are of themselves cogent enough to demonstrate automatic succession to the Genocide Convention but suggests that his arguments, taken cumulatively, point to that result. See Separate Opinion of Judge Weeramantry, Bosnian Genocide (Preliminary Objections) (n 20) 652.


State Succession to Treaties

63

illustrated inter alia by the above-mentioned accession by Georgia to CERD, which resulted in Georgia arguing neither automatic treaty succession generally, nor automatic succession to human rights treaties in particular. In general, and just as with the automatic succession thesis more generally, the Court’s jurisprudence does not support a particular approach to the contested question of automatic succession to human rights treaties.

3.4 Automatic succession to localized treaties If few rules on treaty succession are carved in stone, Article 12 of the VCSST and the underlying principle of automatic succession to localized treaties is among the remarkable exceptions.63 Notwithstanding the many controversies relating to treaty succession, it has traditionally been agreed that treaty regimes regulating the use of territory, for example by placing certain restrictions on its use, ‘run with the land’ and thus are not affected by state succession.64 Against this background, it comes as no surprise that the Court, in its 1997 Judgment in Gabčíkovo-Nagymaros, confirmed the customary law character of Article 12 of the VCSST—a view already taken by the ILC when it drafted the provision.65 Moreover, and again in line with the ILC’s position, the ICJ found that ‘treaties concerning water rights or navigation on rivers are commonly regarded as candidates for inclusion in the category of territorial treaties’.66 Accordingly the Court concluded that a 1977 treaty entered into by Czechoslovakia and Hungary and relating to the construction of the disputed Gabčíkovo-Nagymaros project had become automatically binding upon

63 See Separate Opinion of Judge Weeramantry, Bosnian Genocide (Preliminary Objections) (n 20) 451 ff. 64 The principle is given effect in paras 1 and 2 of Art 12 of the VCSST, which provide: 1. A succession of States does not as such affect: (a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of any territory of a foreign State and considered as attaching to the territories in question; (b) rights established by a treaty for the benefit of any territory and relating to the use, or to restrictions upon the use, of any territory of a foreign State and considered as attaching to the territories in question. 2. A succession of States does not as such affect: (a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of a group of States or of all States and considered as attaching to that territory; (b) rights established by a treaty for the benefit of a group of States or of all States and relating to the use of any territory, or to restrictions upon its use, and considered as attaching to that territory. Art 12, para 3, lays down a special rule for ‘treaty obligations of the predecessor State providing for the establishment of foreign military bases [on its territory]’. 65 In the Commentary on its Draft Articles on Succession of States in respect of Treaties, the ILC had identified ‘treaties of a territorial character’ as being unaffected by succession of states. See Official Records of the United Nations Conference on the Succession of States in respect of Treaties, vol III, Doc A/ CONF.80/16/Add.2, 27, para 2. 66 Gabčíkovo-Nagymaros (n 43) para 123, citing the ILC, Commentary on its Draft Articles on Succession (n 65) 33 para 26.


64

The Development of International Law by the ICJ

Slovakia on 1 January 1993 by virtue of state succession after the dissolution of Czechoslovakia.67

3.5 Treaty succession by way of a notification of succession Pursuant to the VCSST, and in particular its Article 17, a ‘newly independent state’68 may, by a notification of succession, establish its status as a party to any multilateral treaty which at the date of the succession of states was in force in respect of the territory to which the succession of states relates.69 Article 2(1)(g) defines ‘notification of succession’ to mean ‘in relation to a multilateral treaty any notification, however phrased or named, made by a successor State expressing its consent to be considered as bound by the treaty’. Further, Article 22 of the same Convention provides that such notification of succession shall be made in writing and ought to be signed either by the Head of State, Head of Government or Minister for Foreign Affairs or by a representative of the state possessing full powers. Such notification shall, under Article 22(3), be addressed to the depositary. While thus regulating the modality of effecting succession in some detail, the VCSST leaves open a number of issues which have come up in the Court’s jurisprudence. These include the following: (1) the legal effect of notifications of succession emanating from successor states coming into existence during a process of separation from or the complete dissolution of the predecessor state, rather than from the historical process of decolonization; (2) the temporal effect of such notifications; and (3) the possibility of replacing formalized notifications of succession by less formal acts. The Court’s approach to each of these questions will be considered in turn.

3.5.1 Relevance of notifications of succession beyond the process of decolonization With regard to the Genocide Convention, Bosnia, as one of the successor states of the former Yugoslavia, submitted a notification of succession to the SecretaryGeneral of the United Nations indicating its will to become a contracting party to the Genocide Convention by virtue of succession.70 In the Bosnian Genocide case, the respondent state, the FRY, claimed that the possibility of becoming a contracting party to a given treaty by way of a notification of succession was limited to ‘newly independent states’.71 Yet, in line with almost uniform state practice— particularly that relating to the dissolution of the USSR, the SFRY and Czechoslovakia—the Court found, both in its order on provisional measures72 67 68 69 70 71

ILC, Commentary on its Draft Articles on Succession (n 65) 33, para 26. Defined in Art 2(1)(g) VCSST. Zimmermann (n 5) 146 ff, 225 ff. Bosnian Genocide (Preliminary Objections) (n 20) para 18. ICJ Pleadings, Bosnian Genocide (Preliminary Objections), CR 96/7, 29 April 1996 (Etinski)

35 ff. 72

Bosnian Genocide (Provisional Measures) (n 15) para 25.


State Succession to Treaties

65

and in its 1996 Judgment on jurisdiction, that ‘Bosnia and Herzegovina could become a party to the Convention through the mechanism of State succession’,73 ie by virtue of its notification of succession. It ought to be noted, however, that given the Court’s reluctance to take a position on the issue of automatic succession, it did not address the effect of such notifications of succession; in other words, it left open the question whether in the circumstances of the case Bosnia’s declaration was declaratory (because Bosnia had automatically seceeded to the Convention), or whether it was of a constitutive character (because succession was not automatic). While the Court’s approach was in line with international practice, it clarified a matter not conclusively settled by the VCSST: in accepting the possibility of notifications of succession by all successor states (and not just newly independent states), the Court confirmed that such declarations are yet another way of becoming a contracting party to a given treaty previously entered into by the respective predecessor state—a regular mode of becoming bound by its terms.

3.5.2 Temporal effects of notifications of succession The second question resurfacing in the Court’s jurisprudence is the temporal effect of a notification of succession. Notifications might either take effect ex nunc, or they might be retroactive and date back to the time when the succession of states took place.74 Generally speaking, it may be said that the notion of continuity is inherent in the very concept of succession;75 this in turn would seem to favour accepting the retroactive effect of notifications of succession. However, to do so would enable successor states to acquire the status of a treaty party ex post facto.76 The 1978 VCSST addresses the matter only with respect to newly independent states (to which the general principle of automatic succession, set out in its Article 34, does not apply). In Article 23, it provides that a newly independent state submitting a notification of succession shall, as a matter of principle, be considered a party to the treaty from the date of succession or from the date of entry into force of the treaty, whichever is later in time. Nevertheless, the operation of the treaty is considered to be suspended as between the succeeding state and the other states parties until the date of the notification. As was observed by several members of the ILC present at the 1978 Vienna Diplomatic Conference, this latter stipulation was ‘virtually the same as saying that [the treaty] was not in force’77 before the notification.

73

Bosnian Genocide (Preliminary Objections) (n 20) para 20. As to the criteria for determining the date of succession of states see Zimmermann (n 5) 778 ff. 75 PK Menon, ‘Succession of States in Respect of State Property with Particular Reference to the 1983 Vienna Convention’ (1986) 64 Revue de droit international, de sciences diplomatiques et politiques 1, 32. 76 For some critical considerations in this regard see the statement made by the United States during the work of the ILC leading to the adoption of the ILC Draft for the 1978 Convention, USA, ILC Ybk 1974 II/1, 56. 77 See A/CONF.80/16/Add.2. 74


66

The Development of International Law by the ICJ

In depositary practice, notifications of succession had been considered to have retroactive effect.78 Against that background, in Bosnian Genocide, Bosnia claimed that its notification of succession meant that it had become a party to the Genocide Convention at the moment of its independence. The respondent state in turn denied any such effect. Having initially left the matter open,79 the Court, in its 1996 Judgment, held that the Genocide Convention had been applicable ‘since the beginning of the conflict’,80 and that Bosnia’s succession—unlike that of a state ratifying or acceding to the Genocide Convention pursuant to its Article XIII—was effective immediately.81 The impact of this decision could be felt in Croatian Genocide,82 in which Croatia’s status as a contracting party to the Genocide Convention, during all relevant times, remained unchallenged. Croatia had submitted a notification of succession as of 12 October 1992 but the Convention had already come into existence with regard to Croatia by 8 October 1991, ie more than a year earlier. It is telling that while Croatia claimed to have automatically succeeded to the Genocide Convention (thus circumventing the issue of a possible retroactive effect of its notification of succession), Serbia seems to have accepted the possibility of retroactive succession, at least by means of the submission of a notification of succession. This is probably due to the fact that the Court had already settled the matter in the Bosnian Genocide case and there was only a slim chance, if any, that the issue would be reopened. It is therefore not surprising that the Court saw no need either to further address the issue of the effect ratione temporis of such declarations of succession or to further clarify the matter.

3.5.3 Form of notifications of succession Arguably, the Court’s most relevant clarification of the regime of treaty succession concerns the form of notifications. As noted above, the VCSST adopts a fairly strict approach, requiring a specific declaration in writing, signed by a state representative and transmitted to the depositary. The VCSST codified pre-existing state practice and its approach has largely been confirmed by subsequent practice, in particular in the wake of succession events after 1990/91, ie relating to the dissolution of the 78 For recent practice see United Nations, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties (New York: United Nations, 1994), 87; La pratique de la suisse dépositaire de traités internationaux multilateraux en matière de succession d’états, CAHDI (93) 14, para 4, where it is stated: ‘l’expression du consentement à être lié par le traité rétroagit à la date d’indépendance de l’Etat successeur’, and La pratique de la suisse dépositaire de traités internationaux multilateraux en matière de succession d’états, CAHDI (94) 8,2: ‘puisqu’il s’agit d’une succession, celle-ci devrait normalement ne pas prendre effet à la date de la notification, mais retroagir à la date où le nouvel Etat a acquis une existence internationale.’ 79 Bosnian Genocide (Preliminary Objections) (n 20) para 17. 80 Bosnian Genocide (Preliminary Objections) (n 20) para 34. 81 Bosnian Genocide (Preliminary Objections) (n 20) para 34. Pursuant to Art XIII, para 3, of the Genocide Convention ‘[a]ny ratification or accession effected subsequent to the Convention’s general entry into force shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession’. 82 Croatian Genocide (Preliminary Objections) (n 23) 412.


State Succession to Treaties

67

USSR, Yugoslavia, and Czechoslovakia.83 It is also worth noting that depositaries of multilateral treaties require treaty-specific declarations of succession which relate to one or more enumerated treaties before they consider a successor state to have seceeded.84 By contrast, general declarations of succession are not understood to bring about treaty succession—much less devolution agreements.85 It is against this background that the Court’s decision at the jurisdictional stage of the Croatian Genocide case has to be seen. The Court had to deal with Croatia’s claim that a declaration adopted on 27 April 1992 during a joint meeting of the (at that time de jure still existing) Assembly of the SFRY, the National Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro amounted to a notification of succession by which the FRY had become a party to the Genocide Convention. The declaration had not identified any treaty in particular, and it had been circulated as an official Note of the Yugoslav mission to the United Nations to the UN Secretary-General, with the request that he distribute it as an official document of the Organization (rather than by way of a depositary note). Notwithstanding these formal defects, the Court considered that the FRY, as a successor state to the SFRY, had accepted the declaration as having been made on its behalf and that it had endorsed and accepted the ensuing commitments. Contrary to the above-mentioned long-standing practice of depositaries, the Court took the position that even general declarations may, at least under certain specific circumstances, amount to a notification of succession.86 While the Court based its finding on the wording of Article 2(g) of the VCSST, which refers to any such notification ‘however phrased or named’ (thus not requiring any specific form of the respective notification), it did not address the requirement contained in Article 22, which, in line with the principle underlying Article 7 of the Vienna Convention on the Law of Treaties, restricts the circle of persons whose conduct can bind a state (and which thus relates to the author of the respective notification). In particular, it is worth noting that the Court did not consider the declaration (and the ensuing note) to constitute a binding unilateral declaration, nor did it base its result on concepts such as estoppel (which would have been difficult anyhow, given the obvious lack of reliance by Croatia on the declaration). While the Court was careful to stress the ‘particular context of the case’87 and to note that the declaration under consideration, while not constituting a notification of succession as such, could be ‘considered as having had the effect of a notification of succession to treaties’,88 said judgment marks a shift away from the restrictive approach adopted in the 1978 VCSST and increases legal uncertainty. Indeed, one wonders why (following Article 8 of the 1978 VCSST and consistent state practice89) a devolution agreement, in which a successor state formally agrees that the treaty obligations of its predecessor state will devolve upon it, does not bring about 83 85 86 87 88 89

84 Zimmermann (n 5) 752 ff. Zimmermann (n 5) 372 ff, 303 ff, 335 ff. Zimmermann (n 5) 155 ff, 763 ff. Croatian Genocide (Preliminary Objections) (n 23) para 108. Croatian Genocide (Preliminary Objections) (n 23) para 111. Croatian Genocide (Preliminary Objections) (n 23) para 111. Zimmermann (n 5) 155 ff.


68

The Development of International Law by the ICJ

treaty succession, while a unilateral and generalized declaration like the ‘Serbian’ one of 27 April 1992 can have precisely that effect. The ad hoc approach adopted in Croatian Genocide thus runs the risk of calling into question even those few rules of treaty succession which, at least so far, have been considered firmly to reflect customary international law on the matter.

4. Impact of the Court’s jurisprudence on the law of treaty succession Currently, there are very few clear rules when it comes to the succession of states with regard to treaties. As mentioned, thirty-five years after its adoption, the 1978 VCSST has been able to attract only twenty-two states parties. Accordingly, there is a continuing need for unequivocal rules of customary law on the matter. In that regard the Court could have shown more willingness to address the issues head-on and settle some of the above-mentioned outstanding issues. Instead, the Court has (i) circumvented the relevant questions, (ii) limited itself to confirming only those few rules whose customary nature was undoubted, and, perhaps most dangerously, (iii) adapted certain rules to the specific circumstances of a given case in an attempt to reach a certain result without addressing some fundamental issues of the law of state succession, and, in so doing, run the risk of undermining even further the normativity of the already somewhat shaky rules of state succession to treaties. Yet, this reluctance of the Court might just be evidence of the uncertainty of the law of state succession with regard to treaties (and other matters) which, even today, suffers from a lack of uniform state practice. One cannot but notice, however, that other actors, such as human rights treaty bodies, have taken a much bolder approach to certain issues; however, they have done so without being able decisively to influence state practice. One might wonder whether the Court would have had more success than the treaty bodies in further developing or confirming international law on the matter. In any event, given the lack of both uniformity of state practice and general rules developed in the Court’s jurisprudence, the states concerned have to a large degree retained the ability to create ad hoc solutions when it comes to state succession with regard to treaties, without being afraid that any such solutions might eventually be quashed by the Court.


PART III THE LAW OF CLAIMS


This page intentionally left blank


5 The International Court of Justice and the Law of State Responsibility James Crawford, AC SC

1. Introduction Hersch Lauterpacht wrote The Development of International Law by the Permanent Court of International Justice in 1934; in 1958 he produced a second edition, bringing it up to date in relation to the International Court of Justice (ICJ).1 Though the books are now dated, they are well written and still worth reading. In particular, the first offers a valuable perspective on the mind-set of international lawyers at the time when the process of the Permanent Court of International Justice (PCIJ) was still being formed. The international court system is often thought of as having been established for an extended period of time; but the fate of the PCIJ was unknown in 1923. By 1934, Lauterpacht had provided a canonical account of the judicial method in relation to the PCIJ, demonstrating the great capacity of the man. The following discussion will take a synoptic view of the relationship between the World Court, the phrase used to cover both the PCIJ and the ICJ, and the law of state responsibility, before turning to more recent events.

2. Contribution of the PCIJ to the law of state responsibility The PCIJ and the ICJ—the most continuous of the various interwar bodies that were transmitted, and transmuted, in 1945—share a number of common features. Both courts started their careers with an important adversarial state responsibility case: Wimbledon2 was the first for the PCIJ; Corfu Channel 3 for the ICJ. It is significant that in both of these cases the Court awarded damages, which was not

1 H Lauterpacht, The Development of International Law by the International Court (London: Stevens & Sons, 1958) and The Development of International Law by the Permanent Court of International Justice (London/New York/Toronto: Longmans Green and Co., 1934). 2 SS ‘Wimbledon’ (UK, France, Italy, Japan, Poland [Intervening] v Germany), (1923) PCIJ Ser A No 1. 3 Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4.


72

The Development of International Law by the ICJ

repeated subsequently by either for many years.4 This suggests that, although there have been many state responsibility cases, damages are not necessarily the best measure of responsibility. The PCIJ case of Wimbledon was also significant in that its bench was composed of some of the important figures in the formation of the law of state responsibility, such as Max Huber and, in particular, Dionisio Anzilotti. The Italian influence on state responsibility remained strong in the post-1945 period, with Special Rapporteur (later Judge) Roberto Ago continuing the Italian tradition, only broken in 1996 by the decision of the Italian Government not to re-nominate Gaetano Arangio-Ruiz to the International Law Commission (ILC). During his tenure at the PCIJ, Anzilotti played a central role in the development of the Court’s conceptions of fault and attribution, which he referred to as ‘imputability’. The terminology has changed, but the ideas remain the same, finding expression in a series of important decisions of the Court. Chorzów Factory5 is the one that has survived to be cited with great frequency, often by people who would appear never to have read it. The proposition for which Chorzów Factory is cited—ie that ‘it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation’6—is a simplification of a very complex dispute involving lands in German Upper Silesia, which had become Polish as a result of the Treaty of Versailles. The ICJ, when it started, had a significant tradition of cases involving state responsibility to build on. The principles that (i) the breach of an international obligation invokes the responsibility of the state; (ii) the state cannot rely on its municipal law as grounds for failure to comply with its international obligations; and (iii) for every international wrong there was an injured state (entailing the idea that responsibility was essentially bilateral) and many more had been laid down by the PCIJ7 and were essentially adopted by the ICJ. What the PCIJ did not engage in to any great degree, largely because of lack of opportunity, was the elaboration of the multilateral foundations of responsibility. When the PCIJ had opportunities to be innovative it seized them for the most part, at least in the first phase of the 1920s. For example, in Jurisdiction of the Courts of Danzig,8 the PCIJ said that although international law was radically distinct from domestic law and states were the principal subjects of international law,

4 Ahmadou Sadio Diallo (Guinea v DRC) (Compensation) Judgment of 19 June 2012 (<http:// www.icj-cij.org/docket/files/103/17044.pdf> (accessed 17 May 2013)). The Court has reserved quantum in Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168. For cases where the Court avoided awarding damages despite findings of responsibility see eg Fisheries Jurisdiction (Germany v Iceland) (Merits) [1974] ICJ Rep 175; Land and Maritime Boundary between Cameroon v Nigeria [2002] ICJ Rep 303; Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43. 5 Factory at Chorzów (Merits) (1928) PCIJ Ser A No 17. 6 Factory at Chorzów (Merits) (n 5) 29. 7 See eg Phosphates in Morocco (1938) PCIJ Ser A/B No 74, 28; SS ‘Wimbledon’ (n 2) 30; Factory at Chorzów (Jurisdiction), PCIJ Series A (1927), No 9, 21; and Factory at Chorzów (Merits) (n 5) 29. 8 Jurisdiction of the Courts of Danzig (1928) PCIJ Ser B No 15, 17–24.


State Responsibility

73

nonetheless, states could, if they wanted to, confer rights on individuals—a surprising proposition considering the strictly dualist thinking of Anzilotti and others, which subsequently matured and inspired the modern human rights movement.9

3. The ICJ’s first responsibility cases and the initiation of the ILC’s work on responsibility The ICJ first addressed responsibility in the Corfu Channel case,10 brought by the UK against Albania, where it analysed in detail the basis for state responsibility in a multilateral context. The mines that caused the explosions were laid by Yugoslavia and not by Albania, which had no mine-laying capacity of its own. Albania’s responsibility derived from the fact that it knew, or must have known from its border guards, that the mines were there. To make this determination, the Court appointed an expert panel that went to the Corfu Channel to verify that it was impossible to lay mines without the guards who manned the border twenty-four hours a day knowing about it.11 The case does not represent a triumph of the civil law method over the common law method, however, as Corfu Channel also saw the first (and possibly the last) successful cross-examination in the history of the Court, conducted of the Yugoslav naval expert by a French lawyer who had never performed a cross-examination in his life.12 Subsequently the Court heard the Reparations case,13 which, continuing the earlier work of the PCIJ, broke the old adage that only states were subjects of international law and applied the law of state responsibility mutatis mutandis to international organizations (a process that would continue with the ILC’s work on the responsibility of international organizations).14 It was held that the United Nations could bring a claim against Israel (then a non-member state of the UN) not merely on its own account, but also on behalf of its agent, Count Bernadotte, who had been assassinated by Jewish terrorists in 1948. There could, moreover, be a claim on behalf of his widow and his estate, in addition to the claim for the loss that the UN had suffered.15 Shortly thereafter, the ILC, which had been established as part of the post-war attempt to develop international law, started to work on state responsibility.16 Since its work began in the mid-1950s, there has been a symbiotic relationship between the 9 Cf K Parlett, The Individual in the International Legal System: Continuity and Change in International Law (Cambridge: CUP, 2011). 10 Corfu Channel (n 3). 11 See Corfu Channel (UK v Albania) (Expert Opinion: Order) [1948] ICJ Rep 124. 12 Corfu Channel (UK v Albania), Pleadings, Oral Arguments, Documents, Volume III, 173–8. 13 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174. 14 Reparation for Injuries (n 13) 179–86. 15 Reparation for Injuries (n 13) 184, 186. 16 GA Res 799 (VIII) of 7 December 1953 requested that the ILC undertake, as soon as it considered it advisable, the codification of the principles of international law governing state responsibility.


74

The Development of International Law by the ICJ

ILC and the ICJ in this field. This is fascinating because the tasks of these two bodies are completely different. The function of the ILC is to draft texts that can be adopted as treaties, thus becoming part of international law. But at the same time, the ILC is tasked with codifying international law and bestowing authority on its work to some extent independent of the happenstance of treaty ratification.17 It has been relatively successful in accomplishing this, certainly in the first phase of its operations (working on the law of the sea, the law of treaties, and the law of diplomatic and consular relations), and to a lesser extent in the second phase (working on watercourses, state immunity, state responsibility, among other subjects). The function of the Court, on the other hand, is to decide cases. The Court’s advisory opinions have been important in terms of establishing the institutional law of the UN as an international organization,18 but with certain rather limited exceptions they have not contributed much to the law of state responsibility. Instead, the contentious cases have informed this area of international law, the main exception being the Wall Opinion.19 What the Court needs when dealing with cases involving state responsibility is a measure of flexibility. Difficult inter-state cases cannot be decided according to a formula; the specific circumstances of the case need to be examined. The Court is very responsive to the factual context of cases. This feature of the Court’s jurisprudence is evident in, for example, Corfu Channel, where the Court held that although the United Kingdom had violated international law by conducting a forcible mine-sweeping operation in Albanian waters, in the circumstances the declaration of illegality alone was sufficient reparation—a clearly discretionary and flexible finding.20 The ILC in codifying the law of state responsibility had to lay down general rules, which to some extent involved inventing them. The rules of state responsibility have been derived from cases, from practice, and from often unarticulated instantiations of general legal ideas. This is demonstrated by Article 48 of the ILC Articles on State Responsibility which deals with the invocation of responsibility by a state other than an injured state.21 The rules in Article 48 were not part of international law before they were formulated in that article. Of course, the article was drafted from existing material, but that material did not predetermine the question.22 The difficulty in distinguishing between codification and progressive development is plainly visible from this example. 17 Art 1, para 1 of the Statute of the ILC (adopted in GA Res 174 (II) of 21 November 1947) provides that the ‘Commission shall have for its object the promotion of the progressive development of international law and its codification’. 18 See further Sloan’s and Hernández’s contribution to this volume at Chapter 10. 19 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, paras 140–60. 20 Corfu Channel (n 3) 36. 21 ILC Articles on Responsibility of States for Internationally Wrongful Acts, ILC Ybk 2001/II(2), 26, 126. 22 On Art 48 see J Crawford, ‘Responsibilities for Breaches of Communitarian Norms: An Appraisal of Article 48 of the ILC Articles on Responsibility of States for Wrongful Acts’ in U Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford: OUP, 2011) 224.


State Responsibility

75

The ILC in its work on responsibility under Francisco García-Amador (Cuba) looked at the substance of responsibility, focusing especially on injury to aliens.23 This resulted in technically good conclusions, which were disregarded by the ILC due to a simple lack of interest and the world heading towards decolonization and the recalibration (at least an attempt at recalibration) of the law relating to injuries to aliens. García-Amador’s work was never discussed at any length by the ILC. Work started again, however, in the 1960s under Roberto Ago,24 who could be considered, in some respects, Anzilotti’s successor. At the same time, the Court, for its part, took a very reserved view in dealing with the subject of injury to aliens. For example, in Barcelona Traction25 the Court took the position that the development of the law of state responsibility for injury to aliens was limited. It adopted a strictly formal view of the corporate veil and a traditional and narrow approach to diplomatic protection. When the ILC, on the other hand, later dealt with diplomatic protection, it tried to liberalize the area in various ways, more or less successfully, the consequences of which can now be seen in cases before the Court where these articles are being tested.26 In short, a dialectical relationship exists between these two entities, also in the field of diplomatic protection—though a discussion of that relationship is beyond the scope of this chapter.27

4. Ago’s influence on the ILC’s work Ago’s main insight into the law of state responsibility was to articulate that it is the framework within which the obligations of states operate.28 The law of state responsibility is not itself a set of rules telling states what to do. Rather, it is the system which frames the rules governing state conduct—rules of attribution, rules of excuse, rules relating to breach and to remedies. The content of state obligations is a different matter. In fact, it is very difficult to determine at a particular moment in time what all the obligations of a given state are, and a Napoleonic Code is completely beyond our capacity. All we can do is ask, given that we have processes of consent, acquiescence, etc, which give rise to obligations for states, how one deals with those obligations once they exist. The rules of interpretation of treaties and customary international law help determine the existence of a breach but do not shed light on its consequences. Ago recognized that propositions about state responsibility would, curiously, be more stable than substantive rules, which are liable to change. The rules of state 23 See eg Reports by the Special Rapporteur: ILC Ybk 1957/II, 104; ILC Ybk 1958/II, 47; ILC Ybk 1961/II, 29–45. 24 Ago was appointed as Special Rapporteur in 1963: ILC Ybk 1963/II, 224. 25 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase) (Merits) [1970] ICJ Rep 3. 26 See eg Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections) [2007] ICJ Rep 582. 27 For details see Parlett’s contribution to this volume at Chapter 6. 28 This was done already in the introduction to Ago’s First Report: ILC Ybk 1969/II, 127.


76

The Development of International Law by the ICJ

responsibility are, in effect, explanations of the way in which states relate to each other in the matter of legal obligations. He called this the distinction between primary and secondary rules,29 borrowing, perhaps unfortunately, the language of Herbert Hart.30 Primary rules are the obligations that states have: not to commit genocide, not to invade other states, not to commit or condone torture, etc. Secondary rules are the rules that determine when there has been a breach of primary rules and with what consequences. The corollary of Ago’s insight was that the law of state responsibility was not confined to any given area of substantive international law. It was not confined, in particular, to the law relating to injuries to aliens, which is how García-Amador had treated it. The law of state responsibility was general in scope, covering everything from breaches of the UN Charter to a violation of a bilateral treaty of friendly relations. This comprehensive scope naturally gave rise to enormous difficulty in codification as every drafted rule had to apply both to minor breaches of a bilateral treaty and to the invasion of Belgium or, using a more recent example, the invasion of Iraq. Ago was only responsible for Part One of the ILC Articles, which dealt with the question of whether there had been a breach of an obligation. He did not work on what later became Parts Two, Three, and Four of the Articles, which were drafted by his successors. But the articles drafted by Ago had significant influence as they were extremely well crafted with enormous attention to detail by Ago and his staff. The Draft Articles introduced concepts such as the defence of necessity, which previously had an uncertain status in international law. A reflection of Ago’s particular influence is that he managed to stay on as Special Rapporteur even after he was elected to the ICJ in 1979 and had ceased to be a member of the ILC. It is highly unlikely that such an arrangement would be permitted now; moreover, the current caseload of the Court would not allow it.

5. The introduction of the concept of obligations owed to the international community as a whole Ago was replaced at the ILC by Willem Riphagen, then by another Italian, ArangioRuiz,31 and then in 1997 by the author, who was given the task of completing the second reading of the Draft Articles in four years.32 During the first reading the Court had made significant contributions to the law of state responsibility in a

29 R Ago, Second Report on State Responsibility by Ago (‘The Origin of International Responsibility’), ILC Ybk 1970/II, 179. 30 HLA Hart, The Concept of Law (Oxford: Clarendon Press, 1st edn 1961, 2nd edn 1994) ch V. 31 Riphagen was appointed in 1979 (ILC Ybk 1979/II(2), 90); Arangio-Ruiz in 1987 (ILC Ybk 1987/II(2), 53). 32 The ILC in 1997 decided to complete ‘the second reading of the draft articles on State responsibility by the end of its quinquennium’: ILC Ybk 1997/II(2), 58.


State Responsibility

77

series of important cases: Hostages,33 Nicaragua,34 and Gabčíkovo-Nagymaros.35 But the most important thing the Court did was to say in Barcelona Traction in 1970 that certain obligations were owed to the international community as a whole.36 Barcelona Traction was a diplomatic protection case about a company which had been incorporated in Canada but whose stock was primarily owned by Belgian nationals, having debilitating restrictions placed on its ability to function by the Government of Spain under Franco. The litigation lasted for ten years, with the Court eventually holding that Belgium could not represent the Barcelona Traction Company as it was a Canadian company. This was a very conservative view in the narrow field of diplomatic protection. The Court’s finding, in the most obiter of dicta, that there could be obligations to the international community as a whole, in effect constituted an apology for its earlier decision in the second South West Africa cases,37 in which it held that Ethiopia and Liberia had no standing to bring a claim against South Africa in respect of a breach of its duties as a mandatory arising from its imposition of apartheid on South West Africa. The approach taken in Barcelona Traction was a manifestation of Ago’s view of the comprehensive scope of the law of state responsibility. It covers violations of obligations in the public interest in the fields of environmental law, human rights, and decolonization, just as much as it covers breaches of obligations in bilateral fields such as diplomatic relations. The echoes of that decision carried through the next thirty years or so. A problematic aspect of Barcelona Traction was the phrase erga omnes. Another Latin term, jus cogens, had already been incorporated into the Vienna Convention on the Law of Treaties (VCLT) the year before.38 But France was extremely unhappy with Article 53 and it voted against the VCLT because of that article.39 This was no doubt why the Court avoided the phrase in 1970 (and for long after). Nevertheless, Barcelona Traction marks the emergence of the important idea that states can have obligations that are owed not individually to other states—uti singuli, singularly—but in some sense collectively. The international system is slowly learning to deal with this idea, but there are views that the ILC has gone too far in its approach to obligations owed to the international community as a whole, in particular with regard to Article 48 of the ILC Articles.40

33

United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14. 35 Gabčíkovo-Nagymaros Project (n 4). 36 Barcelona Traction (n 25) para 33. 37 South West Africa (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJ Rep 6. 38 22 May 1969, 1155 UNTS 331, Arts 53, 64. 39 The French delegate complained that draft Art 50 (current Art 53) was imprecise as to the scope of jus cogens, how the norms were formed, and what their effects would be. The French delegation believed that the article might put the success of the convention and the progress of international law in jeopardy: Official Records of the UN Conference on the Law of Treaties, Second Session, Summary records of the plenary meetings and of the meetings of the Committee of the Whole (1970) 94–5, 203–4, 207. 40 ILC Articles (n 21) ILC Ybk 2001/II(2), 26, 126. 34


78

The Development of International Law by the ICJ

Ago responded with the notion of international crimes of states. In my view, here he made a fundamental mistake because introducing the notion of crimes did not really establish a distinct concept. With jus cogens in 1969 and erga omnes in 1970, international crimes in 197641 introduced a third concept and one that had no support in state practice. There had never been a case in which a state had been held criminally liable. The nearest had been Germany after World War I, which resulted in very careful measures being taken after 1945 not to criminalize Germany. For example, the Nuremberg Charter did not treat the Reich as a criminal entity. The idea of criminal organizations in the Nuremberg Charter related only to the likes of the SS, and even then criminal sanctions were not imposed on those organizations as such.42 There was no practice in the modern period of imposing on states any form of judicial penalty, punitive damages, or anything akin to them. Thus, international crimes became yet another idea that congested the ILC Articles. The notion attracted enormous attention, in particular from the developing world, which saw it as a way of criticizing the United States and the Soviet Union for their various egregious breaches of international law.43 The idea of international crimes penetrated the international law discourse;44 it took the ILC four years of debate to exclude it from the Articles.45 The Court did not contribute much to the debate, after having introduced the term erga omnes in 1970, simply because it did not get cases in which to address the issue; it endorsed the ILC’s final position in Bosnian Genocide.46 But there is no reason to think that the Court has a particularly narrow view of standing in the public interest. There are many cases in which states think they are pursuing their own rights where in fact they are pursuing a public interest which is manifest in their participation in the treaty concerned. The Wimbledon and Memel cases are prominent examples from the PCIJ’s era.47 Today, the same is true in environmental matters. For example, in Southern Bluefin Tuna 48 Australia and New Zealand espoused a claim against Japan in relation to the conservation and management of Southern Bluefin Tuna, a concern not limited to those two states. 41

ILC Ybk 1976/II(2), 95–122, esp paras 6–34. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, 82 UNTS 279, esp Arts 9–10. 43 G Arangio-Ruiz, Fifth Report on State Responsibility, ILC Ybk 1993/II(1), 37 (para 140). 44 Eg J Weiler, A Cassese and M Spinedi (eds), International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Berlin: de Gruyter, 1988); A Pellet, ‘Vive le crime! Remarques sur les degrés de l’illicite en droit international’ in International Law on the Eve of the Twenty-first Century: Views from the International Law Commission (New York: United Nations, 1997) 287; NHB Jørgensen, The Responsibility of States for International Crimes (Oxford: OUP, 2000). 45 This process started with my First Report on State Responsibility, which singled out the distinction between international crimes and international delicts as the most controversial element in the Draft Articles on State Responsibility: ILC Ybk 1998/II(1), 1. The Fourth Report remarked that the discussion on serious breaches of obligations to the international community as a whole was still ‘haunted by the ghost of “international crimes” ’: ILC Ybk 2001/II(1), 12. 46 Bosnian Genocide (n 4) para 147. 47 SS ‘ Wimbledon’ (n 2); Interpretation of the Statute of the Memel Territory (1932) PCIJ Ser A/B Nos 47 and 49. 48 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (2000) 39 ILM 1359 (AT UNCnLOS). 42


State Responsibility

79

The way we regulate the world must disaggregate some of the interests concerned from the rights of individual states. This was reflected in the ILC Articles by drawing an important distinction between the obligations of states, dealt with in Parts One and Two, and the right to invoke responsibility dealt with in Part Three. The Court did not have much opportunity to address this issue. Its main excursion into the terrain was the East Timor case,49 where it refused to decide the case on the grounds that a necessary party was not present. The bilateralism of jurisdiction prevailed over the multilateralism of the underlying rights. The Court has consistently confirmed that the status of the substantive norm, even if it is jus cogens or erga omnes, does not affect jurisdiction, which is determined bilaterally.50 International law is like a layer cake, and the layer of the jurisdictional arrangements, which go back to 1923 and have not changed at the level of the World Court,51 remains there with the multilateral perceptions put on top; the layers do not mix. This was affirmed in Germany v Italy, where the Court held that there is no conflict between a rule of jus cogens and the rule of customary law which requires one state to accord immunity to another. The two sets of rules address different matters. The rules of state immunity are procedural in character and are confined to determining whether or not the courts of one state may exercise jurisdiction in respect of another state. They do not bear upon the question whether or not the conduct in respect of which proceedings are brought was lawful or unlawful.52

6. The Court’s activism in Gabčíkovo-Nagymaros The Court played an important role in consolidating some of the ideas of the ILC avant la lettre. One such example was the Gabčíkovo-Nagymaros case.53 Hungary had, on a combination of environmental and economic grounds, refused to continue the building of a major hydroelectric project that had been planned in the 1960s, incorporated in treaty arrangements in the 1970s, and rather sporadically built thereafter. By 1989, the upstream portion of the project was well advanced. But Hungary had never been particularly fond of the project, and Hungarian public opinion was distinctly hostile. In the new freedom of 1989, when heretical thoughts were permitted and communist plans could be abandoned, the Hungarians, having successfully abandoned the bilateral treaty which prevented the East Germans from driving their Trabants through Hungary in order to get to West Germany,54 thought they could also discard their commitment to the 49

East Timor (Portugal v Australia) [1995] ICJ Rep 90. Eg Arrest Warrant of 11 April 2000 (DRC v Belgium) [2002] ICJ Rep 3, 23–30, paras 56–71; Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) Judgment of 3 February 2012 (<http://www.icj-cij.org/docket/files/143/16883.pdf> (accessed on 17 May 2013)) paras 92–7. 51 ICJ jurisdiction is regulated in Art 36 of the ICJ Statute, which is essentially the same as the PCIJ jurisdictional clause: Statute of the PCIJ, 6 LNTS 379, 390, 16 December 1920, Art 36. 52 Germany v Italy (n 50) para 93. 53 Gabčíkovo-Nagymaros (n 4). 54 Hungary-Democratic Republic of Germany, Treaty of Friendship, Co-operation and Mutual Assistance, 617 UNTS 3, 18 May 1967. By a note verbale of 8 September 1989, Hungary suspended 50


80

The Development of International Law by the ICJ

hydroelectric dam. Hungary declared that it was not going to comply with the Barrage Treaty and then Slovakia built its own version of the scheme further upstream on territory on the right bank of the Danube which it had acquired in 1947. The standoff between the downstream version of the plan, which had not been built, and the upstream version, which had been built in a different place, was referred to the ICJ by special agreement and it gave rise to one of the most important of the modern cases on the treatment of rivers. The outcome of the case was, in effect, the Court’s ratification of the status quo, subject to modification by negotiations, which have still not succeeded in achieving their result fifteen years later. The Court is unlikely to provide parties in such circumstances with all the requested relief; it certainly did not do so in this case. The Court said that the downstream dam did not have to be built. The upstream dam was a replacement for the project, but unlawful because, in effect, it involved the theft of the Danube.55 Nevertheless, Hungary was in breach of its obligations in refusing to build the project and therefore owed money to Slovakia to re-acquire joint control of the project, which had to be brought into line with modern environmental considerations. In short, this was a subtle overall settlement of the dispute, subject only to the unfortunate reference back to the parties. Two points should be emphasized with respect to this case. First of all, there was discussion of the defence of necessity, contained in Draft Article 33 of the Articles on first reading, now contained in Article 25 in the second reading.56 Under Ago’s guidance, the ILC had said that where a state is in an overwhelming situation of necessity, it may be entitled to disregard its international obligations, subject to certain important qualifications (based on conceptions of proportionality, the fact that the situation of necessity is not caused by the state, or not contributed to by the state, the fact that it is not causing serious harm to other states, etc).57 Even expressed in those terms, it gave rise to considerable doubts.58 Everyone remembered Chancellor Bethmann-Hollweg in the Reichstag in 1914 saying it was necessary to invade Belgium for the survival of the German state. The analogy with that sort of ‘necessity’ is detrimental to the concept. It was feared that international law could be dispensed with simply by invoking necessity, and there have also been modern examples of this. At the time when the Court dealt with the the application of Arts 6 and 8 of the Treaty, in which the two states had agreed to a visa waiver for their respective nationals, but agreed to refuse travellers permission to leave for third countries. 55 My summary of the facts, no doubt, belies my involvement in the matter as counsel for Hungary. 56 Art 25 states: ‘Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.’ The second paragraph adds: ‘In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a) the international obligation in question excludes the possibility of invoking necessity; or (b) the State has contributed to the situation of necessity.’ 57 R Ago, Eighth Report on State Responsibility, ILC Ybk 1980/II(1), 14–51. 58 For discussion in the ILC, see ILC Ybk 1980/I, 160–83.


State Responsibility

81

argument of necessity, it was very much an open question whether it would be accepted. The Court had the option of stating that the parties argued the case on the assumption that Article 33 (now Article 25) represented international law, and accordingly it could have decided the case hypothetically on the basis of the arguments of the parties. Instead, the Court endorsed the defence of necessity and then, rightly, dismissed Hungary’s invocation of it. Just like an argument of fundamental change of circumstances, the defence of necessity is a last resort when trying to avoid the implementation of a treaty, and it almost always fails. It is an ultimate pressure valve. The second situation of relevance to this discussion is in the field of countermeasures. The Court addressed countermeasures, which had not at that time been dealt with extensively by the ILC, and made some important observations about these practices. For example, the Court said that countermeasures (which used to be termed reprisals taken in response to an internationally unlawful act) had to be proportionate, but they also had to be temporary in character:59 in the Court’s words they must be reversible.60 The Court had gone on location to see the project. Observing the barrage built by Slovakia upstream, it was clear that it was not reversible. Accordingly, the countermeasures defence failed, and the result was that Variant C (the project actually built by Slovakia) was unlawful. This was an extremely important decision and it was taken up by the ILC in its formulation of the rules on countermeasures. The Court’s language was quoted in the eventual ILC articles on countermeasures.61 This illustrates how the Court and the ILC can and do mutually endorse aspects of each other’s work.

7. Reception and influence of the ILC Articles The second reading of the Articles was concluded in 2001. The ILC decided on balance that there should not be an immediate attempt to convert them into a convention; rather they should be allowed to stand as Articles to be taken up by courts and tribunals as deemed appropriate.62 That has happened to an unanticipated degree: there are more than 150 cases in which courts and tribunals at the international level have cited and approved the Articles. That there is almost no case in which a court has cited and disapproved of the Articles demonstrates their impact. The Articles have encoded the way in which we think about responsibility. However, the ILC’s work was not all plain sailing and on some issues the Court has been reticent. On other issues, the Court has gone further than expected, demonstrating a range of approaches, both negative and positive from the perspective of the Articles. An issue on which the Court has been relatively reserved is that 59

60 Gabčíkovo-Nagymaros (n 4) 57. Gabčíkovo-Nagymaros (n 4) 56. See commentary to Art 22 of the ILC Articles on State Responsibility: ILC Ybk 2001/II(2), 75–6. 62 ILC Report 2001, ILC Ybk 2001/II(2), 24–5, paras 61–7. 61


82

The Development of International Law by the ICJ

of assurances and guarantees of non-repetition. According to Article 30, a state in breach of international law has an obligation to stop the breach and to offer assurances and guarantees of non-repetition—that is, to offer promises not to do it again. The Court in LaGrand 63 and later cases has tended to accept that the category exists, but has not ordered or ensured the provision of such assurances or guarantees. Increasingly, the Court has done everything to avoid not requiring assurances. This is understandable from the Court’s point of view as it does not have a continuing role of supervision over the performance of judgments. The Court can revise judgments and interpret them, but it is not an enforcer of its own judgments, as was seen recently in Avena Interpretation.64 The Court does not want to issue well-meaning statements over which it would have no control. But assurances and guarantees play an important role in diplomatic relations in the context of breach, which is one of the reasons why it is often puzzling that the ICJ does not award damages even in cases where it might have done so, as in Cameroon v Nigeria,65 or in the Fisheries cases between Germany, the United Kingdom and Iceland.66 The reason is that the Court is a discrete settlement mechanism, and it is keen to show that the main point in its judgments is given effect. In Cameroon v Nigeria, the main point of the Judgment was the determination of the boundary, and adding an award of damages to the determination of the boundary could have been harmful. The Court needs remedial flexibility. The ILC Articles, on the other hand, deal with a range of situations relating to assurances. In diplomatic relations, for example in cases of intrusions into diplomatic premises, assurances of non-repetition are vital. On the other hand, there are cases in which the Court has gone, some would say, overboard to adopt the Articles. This was a process that took some time to happen, and it can be seen to some extent in the Wall Opinion,67 where one of the questions, once the Court had determined that the wall was unlawful, was the consequences of that unlawfulness. The Court essentially quoted the language of Article 41 of the ILC Articles without actually attributing it to the Articles. This was significant because that article is the residue of the old concept of state crimes. Article 41 says that where there has been a serious breach of a fundamental rule of international law, a rule of jus cogens, there are obligations on other states as well as 63 LaGrand (Germany v USA) [2001] ICJ Rep 466, paras 123–5. The Court held: ‘If a State, in proceedings before this Court, repeatedly refers to substantial activities which it is carrying out in order to achieve compliance with certain obligations under a treaty, then this expresses a commitment to follow through with the efforts in this regard’ (para 124). The commitment expressed would qualify as a general assurance of non-repetition. 64 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v USA) [2009] ICJ Rep 3. The Court found that there was no dispute between the parties and declined the request of Mexico for the Court to order the US to provide guarantees of non-repetition. 65 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) [2002] ICJ Rep 303. 66 Fisheries Jurisdiction (UK v Iceland) (Merits) [1974] ICJ Rep 3; Fisheries Jurisdiction (Germany v Iceland) (Merits) (n 4). 67 Wall (n 19).


State Responsibility

83

on the state which is responsible for the breach—the obligation of non-recognition, going back to the Stimson doctrine,68 and the obligation not to assist that state in maintaining the unlawful situation. Just as the concept of state crimes was highly controversial in the debate on the second reading, so too was the residue of this concept—the consequences of serious breaches of fundamental norms. There are those who regard international responsibility as functioning between two states on a level playing field (formally level, that is), and who consider alternative conceptions of responsibility that bring in third states as contrary to that basic idea. But responsibility can also operate as between states and non-states69 and is not necessarily horizontal in the way in which the equality of states is presented as horizontal. Responsibility can involve third parties, up to and including the international community as a whole. There is debate about this proposition, because the international community as a whole is read by the ‘horizontalists’ as being limited to a community of states. This view is reflected in the definition of jus cogens in Article 53 of the VCLT: ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.70 But the international community itself is no longer limited to states. The European Union, for example, which is not a state, is undoubtedly part of the international community. Palestine, which was granted ‘non-member observer State status’ in the UN on 29 November 201271 and is recognized by around 130 states, has had some, indeterminate status since 1988. The International Committee of the Red Cross, an international person, a party to treaties, is very much part of the international system, but is of course not a state. Other examples, more or less contentious, can be added. The system of international responsibility is now diversified and the Articles reflect that. One of the ways in which that diversity is reflected is through the idea that serious breaches of jus cogens norms give rise to special consequences for third states. The opposite conclusion would imply that we are still in an atomic international system. If third states are not obliged to do anything when faced with apartheid then we are still in a Hobbesian world. This is a question of fundamental significance. And it is of fundamental significance that some states are now advocating a diplomatic conference on the ILC Articles in order to remove Article 48 and the other articles that embody this idea. The problem is still there, having gone through several forms, and the Court has made it clear on which side of the line it stands in

68 The Stimson doctrine is a policy of the US federal government of non-recognition of international territorial changes that were executed by force, an application of the principle of ex injuria jus non oritur. See eg Lord Arnold D McNair, ‘The Stimson Doctrine of Non-Recognition’ (1933) 14 BYIL 65; H Lauterpacht, Recognition in International Law (Cambridge: CUP, 1947); B Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens & Sons Ltd, 1953, repr 1987 by Grotius Publications, and in 1994 and 2006 by CUP) 187. 69 See eg R Ago, Second Report on State Responsibility, ILC Ybk 1970/II, 182–5. 70 22 May 1969, 1155 UNTS 331, Art 53 (emphasis added). 71 GA Res 67/19 of 29 November 2012.


84

The Development of International Law by the ICJ

relation to this. When the ILC finished in 2001, it was thought that Article 41, the residue of crimes, would be the article that would be the least likely to be applied. Yet three years later, in the Wall Opinion, the Court applied it—though, as noted, it did so without explicitly referring to it. And in 2007, in the Bosnian Genocide case,72 the Court endorsed no fewer than seven of the ILC Articles, including Article 16 dealing with complicity, ie aid and assistance in committing an international wrongful act. The text of the article is formulated slightly more generously than the commentary. The commentary restricts the article in the same way as the United States Court of Appeals did in the Talisman case.73 In this case the Sudanese plaintiffs alleged that Talisman Energy, a Canadian corporation, had aided and abetted the Government of Sudan in advancing human rights abuses that facilitated the development of Sudanese oil concessions by Talisman affiliates. The Court determined that Talisman could not be held liable for aiding and abetting unless the plaintiffs could prove that Talisman had acted with the purpose of assisting the Sudanese Government’s violations of customary international law. The Court concluded that there were insufficient facts or circumstances suggesting that Talisman had acted with such a purpose.74 The question is whether complicity in a breach of international law arises because of knowledge of the occurrence of the breach and inaction, or whether there needs to be actual intent to assist. Article 16 is equivocal on that point: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.

The commentary is clear, but not completely aligned with the text of the article on this important question, stating that ‘the aid or assistance must be given with a view to facilitating the commission of the wrongful act, and must actually do so’.75 The Court in Bosnian Genocide 76 endorsed Article 16. The Court went even further and also backed the ILC’s strategy on crimes. The issue arose because the case dealt with the question whether Serbia (then Serbia and Montenegro) could itself commit genocide when the Genocide Convention merely stated that the obligation was to prevent and punish. The Court inferred from the object and purpose of the Convention an obligation on states not to commit genocide themselves. In doing so, the ICJ made it clear that there was no criminal responsibility of states in international law, thereby endorsing the basic strategy of the second reading of the Articles.77

72

Bosnian Genocide (n 4). Presbyterian Church of Sudan et al v Talisman Energy, Inc 582 F 3d 244 (US Ct of Apps, 2nd Cir, 2009). 74 Talisman (n 73) III. 75 See commentary to Art 16 of the ILC Articles on State Responsibility: ILC Ybk 2001/II(2), 66, para 5. 76 Bosnian Genocide (n 4) para 420. 77 Bosnian Genocide (n 4) paras 167–70. 73


State Responsibility

85

The Court has also been supportive of the ILC Articles in the field of attribution. Articles 4–11 deal with attribution in an essentially exhaustive way. The Court has applied a number of those articles, Articles 4 and 8 in particular, as declaratory of general international law. This has given rise to debate about the notion of control in Article 8—to what extent is a state responsible for the acts of private parties on the grounds of direction and control?78 This question arose, for example, in relation to US responsibility for the acts of the contras in Nicaragua79 and Serbia’s responsibility for the acts of the Bosnian Serb militia in the Tadić case, decided by the International Criminal Tribunal for the former Yugoslavia (ICTY).80 In Nicaragua the Court said that general control or influence was not enough—there had to be control or direction of the particular unlawful act for responsibility to arise. That imposes requirements of proof, which are often difficult to fulfil. In Tadić, the ICTY needlessly said that the Court in Nicaragua was wrong. The question in Tadić was not whether the state was responsible under international law for the unlawful conduct, but whether Duško Tadić was individually criminally responsible for war crimes. That depended on whether the general regime of the Geneva Conventions applied under Article 3 of the ICTY Statute, and whether the conflict was an internal or international armed conflict. The ‘overall control’ test was used to make this determination; it had nothing to do with state responsibility. Yet the Tribunal held that the Nicaragua case was too stringent and that generic control was sufficient to establish responsibility. Although the Court in Bosnian Genocide 81 paid a great deal of respect to the decisions of the Tribunal on questions of fact, it held that on this particular question the Tribunal was wrong. There needs to be a specific connection between the wrongful act and the direction or control of the state under Article 8.82 This is also highlighted in the commentary to Article 8.83

8. Conclusion Where does the future lie? Approximately one-third of the Court’s cases involve responsibility. Another third involve boundaries, land or maritime delimitation, and there is a third which cannot be classified—cases like Aerial Spraying 84 and Former Yugoslav Republic of Macedonia v Greece 85 which may involve rivers, transboundary 78 The text of Art 8, entitled ‘Conduct directed or controlled by a State’, reads as follows: ‘The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.’ 79 Nicaragua (n 34). 80 Prosecutor v Dusko Tadić ‘Judgment’ (Appeal Chamber) (15 July 1999) IT-94-1-A (ICTY). 81 Bosnian Genocide (n 4) paras 211–14. 82 Bosnian Genocide (n 4) paras 402–6. 83 ILC Ybk 2001/II(2), 47–8. 84 Aerial Herbicide Spraying (Ecuador v Colombia) (Pending) ICJ Press Release 2008/5 of 1 April 2008 (<http://www.icj-cij.org/docket/files/138/14470.pdf> (accessed 17 May 2013)). 85 Application of the Interim Accord of 13 September 1995 (Former Yugoslav Republic of Macedonia v Greece) Judgment of 5 December 2011 (http://www.icj-cij.org/docket/files/142/16827.pdf> (accessed 17 May 2013)).


86

The Development of International Law by the ICJ

pollution, etc. Many cases that fall within the latter group, nonetheless, do involve responsibility. For example, Aerial Spraying is a responsibility case as well as an environmental one. Responsibility is one of the issues the Court engages with the most, and its role in developing the law of state responsibility has been substantial. The symbiotic relationship between the ILC and the Court has also been significant in achieving a situation where there is now a presumption that the ILC Articles reflect international law, unless it can be shown that they do not—a status which took the Vienna Convention on the Law of Treaties thirty years to reach.


6 Diplomatic Protection and the International Court of Justice Kate Parlett*

1. Introduction While claims brought before the International Court of Justice (ICJ, or ‘the Court’) on the basis of diplomatic protection may now appear to be rare, in a number of cases the Court has had occasion to pronounce on several issues of principle relating to diplomatic protection claims. In particular, the enduring influence of the Court’s seminal decision in Barcelona Traction1 on the development of international law on diplomatic protection is indubitable. Bearing in mind its enduring influence, this chapter will consider the development of the law of diplomatic protection by the ICJ by reference to four general topics: the scope of the doctrine (and in particular the Vattelian fiction which gives rise to the rule that the state has a right, but not an obligation, to pursue diplomatic protection claims); the rule on nationality of claims; claims to vindicate injuries suffered by shareholders; and the broader question of interaction between the law of investment claims and the law on diplomatic protection. This discussion is preceded by an introduction to the origins of the doctrine of diplomatic protection and a brief analysis of the jurisprudence of the ICJ’s predecessor, the Permanent Court of International Justice (PCIJ, or ‘the Permanent Court’), whose decisions laid the foundations of its ‘modern’ application.

2. Origins of the doctrine of diplomatic protection The basic premise of diplomatic protection is traced to Vattel, who wrote: Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if * The author would like to thank the editors for comments on an earlier draft and Diego MejiaLemos for research assistance. The usual caveats apply. 1 Barcelona Traction, Light, and Power Company, Limited (Belgium v Spain) (Second Phase) (Merits) [1970] ICJ Rep 3. As to the influence of the decision generally, see C Tams and A Tzanakopoulos, ‘Barcelona Traction at 40: The ICJ as an Agent of Legal Development’ (2011) 23 Leiden JIL 781.


88

The Development of International Law by the ICJ

possible, oblige him to make full reparation; since otherwise the citizen would not obtain the great end of the civil association, which is safety.2

Thus Vattel expressed diplomatic protection as an obligation of the sending state to protect its citizens when they are injured abroad.3 He began with the proposition that a grant of entrance to territory by a sovereign implies a condition that aliens will be subject to the local laws: this is consistent with the general proposition that individuals were governed by municipal rather than international law. In that context he referred to disputes between foreigners, or between foreigners and citizens, as being within the remit of the local courts, and to a requirement that the foreigner first have recourse to all peaceful means of obtaining reparation for the injury.4 This was a corollary of a nation’s territorial jurisdiction, which dictated that foreign states could only interfere in limited circumstances: where there was a denial of justice; where the decision was clearly and palpably unjust; where the proper procedure had not been observed; or where foreigners had been the subject of discrimination.5 Consistent with Vattel’s conception of the law of nations as the law of sovereigns, he referred in this context to ‘the rights and obligations of sovereigns’ in respect of the protection of citizens, implying that the relevant rights were state rights, not individual rights.6 Vattel’s proposition that an injury to an individual is an injury to his state of nationality became basic to the practice of diplomatic protection. It has been suggested that Vattel’s thesis derived either from feudal law under which the lord’s protection was given in return for the allegiance of his subjects, or as an extension of ‘social contract’ theories, popular at the time to legitimize the state, which linked social peace with recognition of sovereign authority;7 it might also have been inspired by the earlier practice of letters of reprisal. The fiction of diplomatic protection as suggested by Vattel was concerned with the treatment of individuals but referred only to inter-state rights and inter-state relations; the interests of individuals could only be protected through an inter-state process.

3. The inter-war period: the contours of the doctrine as shaped by the PCIJ The contours of the doctrine of diplomatic protection were developed in the interwar period. In the absence of general codification projects, judicial and arbitral 2 E de Vattel, The Law of Nations: or, Principles of the Law of Nature Applied to the Conduct and Affairs and Nations and Sovereigns (1758) (B Kapossy and R Whatmore (eds), Indianapolis: Liberty Fund, 2008), Book II, Chapter VI, } 71, 298. 3 Vattel (n 2) } 71, 298. Vattel’s formulation joined the view that it was the duty of the sending state to protect its citizens injured abroad to the view that the sending state was thereby vindicating its own rights. 4 Vattel (n 2) } 84, 304; see also } 338, 458. 5 Vattel (n 2) } 84, 304. 6 Vattel (n 2) } 71, 298. 7 See M Bennouna, Preliminary Report on Diplomatic Protection (1998) UN Doc A/CN.4/484, 3, para 7.


Diplomatic Protection

89

decisions—notably those of the Permanent Court, but also those of the many mixed arbitral tribunals and commissions operating during the period—exercised a defining influence on the development of the law and remain important to this day. This is true both for questions of principle and for specific applications of the doctrine in particular settings.

3.1 The ‘Mavrommatis principle’ The classical formulation of the doctrine of diplomatic protection is to be found in the decision of the Permanent Court in 1924 in the Mavrommatis case. The Court recognized Greece as a proper claimant against Great Britain in respect of a claim that Mavrommatis, a Greek subject, had been treated by the British authorities in Palestine in a manner incompatible with certain international obligations they were bound to observe. Thus the dispute fell within the jurisdiction of the Court which, pursuant to Article 34 of the Court’s Statute, was limited to disputes between states or members of the League. The Court said: It is true that the dispute was at first between a private person and a State — i.e., between M. Mavrommatis and Great Britain. Subsequently the Greek Government took up the case. The dispute then entered upon a new phase; it entered the domain of international law, and became a dispute between two States. Henceforward therefore it is a dispute which may or may not fall under the jurisdiction of the Permanent Court of International Justice.8

The Court stated further, in point of principle: It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from which they have been unable to obtain satisfaction through ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic protection or international judicial proceedings on his behalf, a State is in reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of international law.9

The basic requirement of nationality of claims followed from this principle: a state could only protect a person (natural or legal) from breaches of international law if that person was a national of that state at the relevant times. The Permanent Court elaborated the basic principle in later cases, particularly in Serbian Loans.10 There the questions put to the Court by special agreement related to the form of payment of certain loans by the Serb-Croat-Slovene Government to French bondholders. The French bondholders had requested the intervention of their Government to resolve the dispute as to whether the loans ought to be paid in gold rather than French francs. In considering whether the matter fell within its 8

Mavrommatis Palestine Concessions, Judgment No 2 (1924) PCIJ Ser A No 2. Mavrommatis (n 8). Serbian Loans (1929) PCIJ Ser A No 20. In other decisions the Permanent Court indirectly affirmed the doctrine of diplomatic protection. For example, in 1933 the Court affirmed that a dispute between two states was distinct from a dispute between an injured individual and a respondent state (Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University v Czechoslovakia) (1933) PCIJ Ser A/B No 61). 9

10


90

The Development of International Law by the ICJ

jurisdiction, the Court examined the question whether the dispute was a dispute between two states, or merely one with the French bondholders. The Court noted that the dispute related to the obligations between the borrowing state and private persons, relations which were ‘within the domain of municipal law’.11 However, a second controversy elevated the claim to the plane of international law: when the holders of the Serbian loans appealed to the French Government and it intervened on their behalf, the Court considered that a distinct difference of opinion arose between the two states which ‘though fundamentally identical with the controversy already existing between the Serb-Croat-Slovene Government and its creditors, is distinct therefrom’.12 Thus the Court held the claim admissible.13

3.2 Questions of nationality While the requirement of nationality was a central aspect of Mavrommatis, its application in specific situations gave rise to specific questions. The question of the relevant time for determining the nationality of a claim arose in the PanevezysSaldutikis Railway case.14 Estonia had brought a claim against Lithuania regarding the latter’s refusal to recognize rights claimed by an Estonian company in respect of the Panevezys-Saldutikis Railway, which had been seized.15 Lithuania raised a preliminary objection on the basis that Estonia had not observed the rule of international law that ‘a claim must be a national claim not only at the time of its presentation but also at the time when the injury was suffered’.16 The Court held that Estonia ‘must prove that at the time when the injury occurred which is alleged to involve the international responsibility of Lithuania the company suffering the injury possessed Estonian nationality’.17 In the view of the Court, this was a corollary of the character of diplomatic protection, by which a state was ‘in reality asserting its own right, the right to ensure in the person of its nationals 11

12 Serbian Loans (n 10) 18. Serbian Loans (n 10) 18. Serbian Loans (n 10) 17–18. Two judges dissented on this point. Judge M Pessôa stated that the Court had no jurisdiction because there was no distinction between the state-state difference of opinion and the dispute between the Serb-Croat-Slovene Government and the French bondholders. Judge M Novacovitch suggested that the Court had no jurisdiction because it was not a ‘public international law controversy’. He stated that although a dispute between states may originate in a controversy between a state and an individual, all disputes previously considered by the Court concerned the application of treaties between states, and the protection of the interests of individuals came into question only as a consequence of the application of a treaty. There was no contention that the SerbCroat-Slovene Government had violated an international treaty or violated a rule of international law, and hence the Court had no jurisdiction. 14 Panevezys-Saldutikis Railway (Estonia v Latvia) (1939) PCIJ Ser A/B No 76. 15 Panevezys-Saldutikis Railway (n 14). Although this claim related to a company rather than a natural person, it is cited here for its treatment of the confines of diplomatic protection, which is equally applicable to claims relating to natural persons. 16 Panevezys-Saldutikis Railway (n 14) 6. 17 Panevezys-Saldutikis Railway (n 14) 16–17. However, in the circumstances the Court held that it could not admit the objection since the grounds on which Lithuania disputed Estonia’s right to take up the case could not be separated from those on which Lithuania disputed the company’s alleged right to ownership of the railway (17–18). It upheld Lithuania’s second objection, that Estonia had failed to exhaust local remedies, and therefore the claim was dismissed at the preliminary objections phase (22). 13


Diplomatic Protection

91

respect for the rules of international law’.18 There was no dispute that nationality was possessed at the time of filing of the claim in this case, and the Court appears to have accepted that nationality was also required at the time of presentation of the claim.19 However, the matter was not conclusively settled and in the absence of any conclusive decision by the Permanent Court (or indeed any other form of legal clarification) it was addressed by arbitral tribunals and commissions of the inter-war period, whose decisions display a considerable degree of heterogeneity. For example, the German-American Mixed Claims Commission required that nationality be established on the date of loss or injury, and on the date when the treaty establishing the Commission came into force—ie it required nationality to be established at the time of the injury and at the time the obligations of the respondent state became absolute.20 In contrast, the British-Mexican Commission required that the claimant state establish continuity of nationality until the date of presentation of the claim,21 and the French-Mexican Commission required continuity of nationality until the date of the award.22

3.3 The bearer of the right Consistently with the Vattelian approach as rationalized in Mavrommatis, claims of diplomatic protection were understood as inter-state disputes. Importantly, the PCIJ’s jurisprudence and inter-war practice took this approach one step further by holding that even though diplomatic protection claims involved injury sustained by the state’s nationals, rights vindicated by way of diplomatic protection were those of the state itself. In its indemnity judgment in Chorzów Factory (1928), the Permanent Court indirectly affirmed this approach.23 It held that in a dispute between states concerning damage suffered by a national, the applicable rules governing reparation were the rules of international law in force between the two states, not the law governing relations between the state and the injured individual: Rights or interests of an individual the violation of which rights causes damage are always in a different plane to rights belonging to a state, which rights may also be infringed by the

18

Panevezys-Saldutikis Railway (n 14) 16. This appears also to have been accepted by Judge van Eysinga in dissent: Panevezys-Saldutikis Railway (n 14) 34–5. 20 See Administrative Decision No V (Germany/US) (1924) 7 RIAA 119, 150. 21 FW Flack, on behalf of the estate of the Late DL Flack (UK) v Mexico (1929) 5 RIAA 61, 62. The Rules of Procedure of the Mexican Commissions suggested that the date of filing was relevant by specifying that the nationality of the relevant individuals from the time of injury to the date of filing was to be included in the memorial: see AH Feller, The Mexican Claims Commissions 1923–1934: A Study in the Law and Procedure of International Tribunals (New York: Macmillan, 1935) 232. 22 Maria Guadalupe A Vve Markassuza, Sentence No 38 (unpublished), French-Mexican Claims Commission, cited in Feller (n 21) 97. The British-Mexican Commission made a similar decision, which is to be contrasted with its approach in the Flack case, described above: see Minnie Stevens Eschauzier (UK) v Mexico (1931) 5 RIAA 207. 23 Factory at Chorzów (Germany v Poland) (Merits) (1928) PCIJ Ser A No 17, 26–8. 19


92

The Development of International Law by the ICJ

same act. The damage suffered by the individual is never therefore identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due to the State.24

The Court subsequently affirmed, in Peter Pázmány, that a diplomatic protection claim brought on the basis of injury to a national was a distinct dispute from any dispute between the injured national and the respondent state.25 The PCIJ’s approach was confirmed in treaty practice referring particular claims to arbitration,26 as well as by international claims tribunals and commissions. Several of these claims processes operated on the basis of diplomatic protection, and affirmed the underlying fiction: that the claim was brought on an inter-state basis to vindicate the state’s injury suffered in respect of its national. For example, the Mixed Claims Commissions established to deal with claims of US nationals concerning damage to property, rights, and interests in German territory; loss or damage to persons, property, rights, and interests as a consequence of the war; and claims for debts of German nationals or the German Government,27 expressly held that the proper claimant was the US: The United States is claimant. Though conducted in behalf of their respective citizens, governments are the real parties to international arbitrations. All claims, therefore, presented to this Commission shall be asserted and controlled by the United States as claimant, either on its own behalf or on behalf of one or more of its nationals. If in the decisions, opinions, and proceedings of the Commission American nationals are referred to as claimants it will be understood that this is for the purpose of convenient designation and that the Government of the United States is the actual claimant.28

The same approach was taken by the US-Mexican General Claims Commission, which held that the right to espouse an international claim was a right held by the state of nationality, in dismissing an argument based on the ‘clean hands’ principle. In Chattin, Mexico argued that because the relevant US national was a ‘fugitive from justice’, the US Government had lost the right to espouse his claim. The Commission held that unlawful conduct of a national did not cause a government to ‘los[e] its right to espouse its subject’s claim in its discretion’.29 The same Commission confirmed that an alien could not ‘deprive the Government of his

24

Factory at Chorzów (n 23) 28. Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (n 10). 26 For example, Affaire Campbell (UK/Portugal) (1931) 2 RIAA 1145; Affaire Chevreau (France/UK) (1931) 2 RIAA 1113; Affaire de l’attaque de la caravane du maharao de Cutch (UK/Ethiopia) (1927) 2 RIAA 821; Aguilar-Amory and Royal Bank of Canada claims (UK v Costa Rica) (1923) 1 RIAA 369; Finnish Shipowners against Great Britain in respect of the use of certain Finnish vessels during the war (Finland/UK) (1934) 3 RIAA 1479; Landreau claim (US/Peru) (1921) 1 RIAA 347; Salem (Egypt/US) (1932) 2 RIAA 1163; Shufeldt claim (Guatemala/US) (1930) 2 RIAA 1079; The ‘Kronprins Gustaf Adolf ’ (Sweden/US) (1931) 2 RIAA 1239; The Death of James Pugh (UK/Panama) (1933) 3 RIAA 1439. 27 Germany-US, 10 August 1922. Claims of US nationals in respect of Austria and Hungary which came within the terms of the treaties of St-Germain-en-Laye and Trianon were also referred to a Commissioner by separate agreement: US-Austria-Hungary, 26 November 1924, 48 LNTS 69. 28 Administrative Decision No II (US/Germany) (1923) 7 RIAA 23, 26. 29 BE Chattin (US) v Mexico (1928) 4 RIAA 282. 25


Diplomatic Protection

93

nation of its undoubted right of applying international remedies to violations of international law committed to his damage’.30 Thus the international law right of a state to exercise diplomatic protection could not be waived by its national, either expressly by contractual agreement, or implicitly by unlawful conduct.

3.4 Interim conclusions In summary, during the inter-war period the fundamental contours of the doctrine of diplomatic protection were consolidated, in particular by the Permanent Court, which made significant contributions to the development of the law. In particular, the Vattelian fiction of injury to the state was affirmed. The Permanent Court also affirmed that continuity of nationality was required until the filing of the claim, although it left open the issue of whether nationality was required thereafter, and commissions and tribunals took different approaches to the requirement of continuity after presentation of the claim. It was also implied that the discretion to exercise a right of diplomatic protection inhered in the state, rather than in its national, although this was not the subject of a clear and concise statement until the decision of the ICJ in Barcelona Traction.

4. Diplomatic protection in the ICJ The ICJ has had several opportunities to address the confines of diplomatic protection. Cases brought by way of diplomatic protection include Nottebohm;31 Interhandel;32 Barcelona Traction;33 Tehran Hostages;34 ELSI;35 three matters concerning the application of the Vienna Convention on Consular Relations: Breard,36 LaGrand,37 and Avena;38 Oil Platforms;39 Arrest Warrant;40 and Diallo.41 While

30 North American Dredging Company of Texas (US) v Mexico (1926) 4 RIAA 26, 29 and 34 (para 11). On subsequent decisions, see DR Shea, The Calvo Clause: A Problem of Inter-American and International Law and Diplomacy (Minneapolis: University of Minnesota Press, 1955) 231–57. 31 Nottebohm (Leichenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4. 32 Interhandel (Switzerland v USA) (Preliminary Objections) [1959] ICJ Rep 6. 33 Barcelona Traction (n 1). 34 United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, 5–6 (para 8). 35 Elettronica Sicula SpA (ELSI) (USA v Italy) [1989] ICJ Rep 15. 36 Vienna Convention on Consular Relations (Paraguay v USA) [1998] ICJ Rep 248, para 5. 37 LaGrand (Germany v USA) [2001] ICJ Rep 466, para 10. 38 Avena and Other Mexican Nationals (Mexico v USA) [2004] ICJ Rep 12, para 40. Mexico brought the case by way, inter alia, of diplomatic protection, but the Court declined to address the case as such. 39 Separate Opinion of Judge Rigaux, Oil Platforms (Iran v USA) [2003] ICJ Rep 161, para 10. 40 Belgium, in Arrest Warrant of 11 April 2000, took the position that the case was transformed into one of diplomatic protection after the Foreign Minister of the DRC left office. But the DRC had not brought the case by way of diplomatic protection and the Court rejected the Belgian position: [2002] ICJ Rep 3, paras 37–40. Cf, implying that the Court (mistakenly) treated Spain’s case as one brought by way of diplomatic protection, Dissenting Opinion of Judge Torres Bernárdez, Fisheries Jurisdiction (Spain v Canada) [1998] ICJ Rep 432, 589, paras 20–2. 41 Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections) [2007] ICJ Rep 582, para 86.


94

The Development of International Law by the ICJ

these provided the Court with an opportunity to clarify a number of important points, the general impression is one of continuity: notwithstanding the increasing role of the individual in international relations, the ICJ has broadly affirmed the ‘PCIJ acquis’. This continuity is affirmed in large part by the work of the International Law Commission (ILC) on the matter, which resulted in the adoption, in 2006, of a set of Draft Articles on Diplomatic Protection42 and which, by and large, confirm the traditional parameters of the doctrine. As the subsequent discussion shows, the interaction between the ICJ and the ILC has in many respects clarified and consolidated the contemporary regime governing diplomatic protection.

4.1 Affirmation of the Mavrommatis formulation As regards questions of principle, the ICJ affirmed the Mavrommatis formulation of diplomatic protection in several cases. For example, in the Interhandel case the ICJ stated that in diplomatic protection claims, the applicant state had ‘adopted the cause of its national’ whose rights had been violated.43 The same approach underlies the ILC’s Draft Articles on Diplomatic Protection. It had been encouraged by Special Rapporteur Dugard,44 who noted: [D]iplomatic protection, albeit premised on a fiction, is an accepted institution of customary international law, and one which continues to serve as a valuable instrument for the protection of human rights. It provides a potential remedy for the protection of millions of aliens who have no access to remedies before international bodies and it provides a more effective remedy to those who have access to the often ineffectual remedies contained in international human rights instruments.45

Article 1 of the Draft Articles defines diplomatic protection as: the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.46

In 2007, in Diallo (Preliminary Objections), the ICJ acknowledged that this formulation reflected the content of customary international law.47

4.2 Discretion to exercise diplomatic protection Apart from confirming the principle, the ICJ has explicitly held that the discretion to exercise diplomatic protection inheres in the state. The suggestion that a state 42 Draft Articles on Diplomatic Protection, in ILC, Report of the Fifty-Eighth Session (2006) UN Doc A/CN.4/L.684. 43 Interhandel (Preliminary Objections) (n 32) 27. 44 J Dugard, First Report on Diplomatic Protection (2000) UN Doc A/CN.4/506 & Addendum 1, 25–6, paras 67–73. 45 Dugard, First Report (n 44) 25, para 64, references omitted. 46 ILC Draft Articles (n 42), Art 1. 47 Diallo (Preliminary Objections) (n 41) para 39.


Diplomatic Protection

95

was obliged to exercise its right to diplomatic protection in a particular case was firmly rejected in Barcelona Traction: in that case the Court emphasized the discretionary character of the right of diplomatic protection.48 Consistently with this principle, the ILC concluded that the right of diplomatic protection belongs to the state, not to the individual. The commentary to Draft Article 2 states: Article 2 stresses that the right of diplomatic protection belongs to or vests in the State. It gives recognition to the Vattelian notion that an injury to a national is an indirect injury to the State . . .

This view is frequently criticized as a fiction difficult to reconcile with the realities of diplomatic protection, which require continuous nationality for the assertion of a diplomatic claim, the exhaustion of local remedies by the injured national, and the assessment of damages suffered to accord with the loss suffered by the individual. Nevertheless the ‘Mavrommatis principle’ or the ‘Vattelian fiction’, as the notion that an injury to a national is an injury to the State has come to be known, remains the cornerstone of diplomatic protection.49 Thus the ILC confirmed that diplomatic protection was a state right rather than an obligation, consistent with the ICJ’s emphasis in Barcelona Traction on the discretionary character of diplomatic protection.50 The Commentary to Article 2 also notes that international law imposes no obligation on a state to exercise its right to diplomatic protection.51 The implication is that individuals hold no international law right to compel their state of nationality to exercise diplomatic protection. However, while affirming the ICJ’s approach, the ILC has sought to move beyond it by formulating, in Draft Article 19, certain ‘Recommended practices’, suggesting that a state entitled to exercise diplomatic protection should: (a) Give due consideration to the possibility of exercising diplomatic protection, especially where a significant injury has occurred; (b) Take into account, wherever feasible, the views of injured persons with regard to resort to diplomatic protection and the reparation to be sought; and (c) Transfer to the injured person any compensation obtained for the injury from the responsible state subject to any reasonable deductions. The Commentary to Draft Article 19 notes that these reflected ‘practices on the part of States . . . which have not yet acquired the status of customary rules’, and 48

Barcelona Traction (n 1) para 79. Barcelona Traction (n 1) paras 78–9. Arguably it follows from the recognition of a distinct state right that the equitable principle of ‘clean hands’ in respect of conduct of the national is inapplicable. The Commission included no provision in relation to that principle in the Draft Articles: see J Dugard, Sixth Report on Diplomatic Protection (2005) UN Doc A/CN.4/546. 50 Barcelona Traction (n 1) para 79. 51 ILC Draft Articles (n 42), Commentary to Art 1, paras 1–2. It has been held in the UK that individuals cannot compel their state of nationality to exercise diplomatic protection on their behalf: Abbasi v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76. 49


The Development of International Law by the ICJ

96

that they were ‘desirable practices . . . that add strength to diplomatic protection as a means for the protection of human rights and foreign investment’.52 In respect of (c), it can be noted that any individual right to compensation in respect of a diplomatic protection claim will ordinarily only arise as a matter of domestic law, but it might also engage international human rights obligations. In 1994 the European Court of Human Rights held that an international agreement making provision for compensation for claims espoused on the basis of diplomatic protection could give rise to an enforceable right on the part of the injured nationals to compensation. It held that Article 6 of the European Convention on Human Rights was engaged where the French Government settled claims of French citizens against the Moroccan Government relating to the nationalization of assets by a lump sum agreement incorporated in a treaty, and subsequently by decree established a national administrative committee to distribute the proceeds of the settlement. The right to compensation was held to be a pecuniary right which was susceptible to determination in accordance with the standards of the European Convention.53 So at least when the European Convention is applicable, individuals may have enforceable rights to the proceeds of a diplomatic protection claim successfully pursued in respect of their injury. Whether the incorporation of this recommended practice in the ILC Draft Articles leads to further practice in support of an individual right to the proceeds of such claims (even where the European Convention does not apply), which may provide evidence of the development of a generally applicable customary rule, remains to be seen. In any event, it is worth noting that, while cautiously seeking to restrict the scope of a state’s discretion, Draft Article 19 operates within the framework of ‘inter-state’ diplomatic protection formulated by the PCIJ and ICJ.

4.3 Nationality of natural persons: the question of genuine link Consistent with the Vattelian fiction that an injury to a national of a state constitutes an injury to the state itself, the basic requirement is that a state can only assert a right of diplomatic protection in respect of its own nationals. This is codified in the ILC’s Article 3(1): ‘The State entitled to exercise diplomatic protection is the State of nationality.’ In determining who is a national, there is a tension between the role of national and international law, and it is here that the ICJ’s jurisprudence has been of particular relevance and clarified the approach of its predecessor. The Permanent Court in Nationality Decrees in Tunis and Morocco implied that it is for each state to determine for itself who are its nationals. It stated: The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations.

52 53

ILC Draft Articles (n 42), Commentary to Article 19, para 1. Beaumartin v France (1994) 19 EHRR 485 (ECtHR).


Diplomatic Protection

97

Thus, in the present state of international law, questions of nationality are, in the opinion of this Court, in principle within the reserved domain.54

However, by stating that nationality was ‘in principle’ within the reserved domain, the Permanent Court left open the question whether there are limits to a state’s discretion. There were other indications that a state’s discretion to determine the question of nationality is not unlimited. Article 1 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws stated that ‘it is for each State to determine under its own law who are its nationals’, but that: This law shall be recognized by other States in so far as it is consistent with international conventions, international custom and the principles of law generally recognized with regard to nationality.55

Against that background, the existence of limits on a state’s conferral of nationality was affirmed by the ICJ in the Nottebohm case. The Court said: According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is the legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection which has made him its national.56

Thus, in addition to confirming that the question of nationality was not within the exclusive domain of states, the ICJ indicated that nationality required a ‘genuine connection’. This has been the subject of much discussion since, including in the ILC. Special Rapporteur Dugard attacked the view that a genuine link is required under customary international law in all cases. He stressed two factors which could limit Nottebohm to the facts of that case: First, it seems that the Court was concerned about the manner in which Liechtenstein conferred nationality upon Nottebohm as, in order to accommodate the urgency of his application for naturalization, Liechtenstein had waived some of its own rules relating to the length of residence required . . . This view, which draws some support from the dissenting opinions, relies heavily on the operation of an inarticulate judicial premise on the part of the majority and is insufficient to provide a satisfactory basis for limiting the scope of the Court’s judgment. Nevertheless, it does suggest that the judgment should not too readily be applied in different situations in which there is no hint of irregularity on the part of the State of nationality. Secondly, the Court was clearly concerned about the ‘extremely tenuous’ links between Nottebohm and Liechtenstein compared with the close ties between Nottebohm and 54

Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4. 179 LNTS 89. More recently this was affirmed by the 1997 European Convention on Nationality, ETS No 166, Art 3. 56 Nottebohm (n 31) 23. 55


98

The Development of International Law by the ICJ

Guatemala over a period of 34 years . . . This explains its repeated assertion that Liechtenstein was ‘not entitled to extend its protection to Nottebohm vis-à-vis Guatemala’ . . . The Court did not purport to pronounce on the status of Nottebohm’s Liechtenstein nationality vis-à-vis all States. It carefully confined its judgment to the right of Liechtenstein to exercise diplomatic protection on behalf of Nottebohm vis-à-vis Guatemala. It therefore left unanswered the question whether Liechtenstein would have been able to protect Nottebohm against a State with which he had no close connection. This question is probably best answered in the affirmative as the Court was determined to propound a relative test only, i.e. that Nottebohm’s close ties with Guatemala trumped the weaker nationality link with Liechtenstein. In these circumstances the Nottebohm requirement of a ‘genuine link’ should be confined to the peculiar facts of the case and not seen as a general principle applicable to all cases of diplomatic protection.57

Article 4 of the ILC’s Draft Articles on Diplomatic Protection gives effect to Dugard’s approach by recognizing that international law imposes limits on the grant of nationality, without imposing a positive requirement of a genuine or effective link. Article 4 provides: For the purposes of diplomatic protection of natural persons, a State of nationality means a State whose nationality the individual sought to be protected has acquired by birth, descent, succession of States, naturalization or in any other manner, not inconsistent with international law.

The commentary notes that the connecting factors listed in Article 4 ‘are illustrative and not exhaustive’58 and that they are the connecting factors ‘most frequently used by States to establish nationality’.59 The commentary also refers to the requirement of a genuine and effective link as suggested in Nottebohm, but states: Despite divergent views as to the interpretation of the [Nottebohm] case, the Commission took the view that there were certain factors that served to limit Nottebohm to the facts of the case in question, particularly the fact that the ties between Mr. Nottebohm and Liechtenstein (the Applicant State) were ‘extremely tenuous’ . . . This suggests that the Court did not intend to expound a general rule applicable to all States but only a relative rule according to which a State in Liechtenstein’s position was required to show a genuine link between itself and Mr. Nottebohm in order to permit it to claim on his behalf against Guatemala with whom he had extremely close ties. Moreover, the Commission was mindful of that fact that if the genuine link requirement proposed by Nottebohm was strictly applied it would exclude millions of persons from the benefit of diplomatic protection as in today’s world of economic globalization and migration there are millions of persons who have drifted away from their State of nationality and made their lives in States whose nationality they never acquire or have acquired nationality by birth or descent from States with which they have a tenuous connection.60

57

Dugard, First Report (n 44) paras 108–10 (references omitted). ILC Draft Articles (n 42), Commentary to Art 4, para 3. ILC Draft Articles (n 42), Commentary to Art 4, para 4. 60 ILC Draft Articles (n 42), Commentary to Art 4, para 5. See also R Sloane, ‘Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality’ [2009] Harvard ILJ 1, who argues that the Court in fact found Liechtenstein’s application inadmissible based on abuse of rights, a general principle of international law. 58 59


Diplomatic Protection

99

If one accepts that the Court’s decision in Nottebohm concerning the requirement of a genuine link can be construed as giving rise to a rule of narrow, rather than broad, application, and that the special circumstances in which it was applied (where there was a demonstrably closer link with the state other than the claimant state), the Court’s decision can be viewed as a contribution to the development of the law on the subject—albeit in a limited context. However, the decision established a rule of more general application: that the question of nationality for international law purposes is not to be determined exclusively within the discretion of the state. That rule of general application has had an enduring influence and has now been codified in the ILC’s Draft Articles.

4.4 Diplomatic protection of corporations and shareholders In relation to diplomatic protection of corporations, two issues have arisen: firstly, the requirements of nationality to exercise diplomatic protection for a corporation; and secondly, whether a state may exercise diplomatic protection to protect the interests of its nationals who are shareholders in a corporation incorporated in another state. Diplomatic protection of corporations has been dominated by the seminal decision of the ICJ in Barcelona Traction. In that case, a claim was brought by Belgium against Spain, in respect of injury suffered by a company incorporated in Canada, with 88 per cent of its shares held by Belgian nationals.61 Spain raised an objection to jurisdiction concerning the right of Belgium to exercise diplomatic protection on behalf of shareholders in a company incorporated in Canada. The Court upheld the objection, finding that the right of diplomatic protection in respect of an injury to a corporation belongs to the state under the laws of which the corporation is incorporated and in whose territory it has its registered office, and not to the national state(s) of the shareholders.62 The Court suggested that the state of nationality of a shareholder might be able to exercise diplomatic protection in circumstances where either the corporation had ceased to exist in its place of incorporation, or where the state of incorporation was itself responsible for inflicting injury on the company.63 However, neither of these were the case in Barcelona Traction, and hence the Court left open whether the state of nationality of the shareholders would be entitled to bring a claim in such circumstances.64 The Court also indicated that international law ‘attributes the right of diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and in whose territory it has its registered office.’65 It noted that no absolute test of ‘genuine connection’ has found general acceptance, but suggested that there 61

Barcelona Traction (n 1) 3. Barcelona Traction (n 1) paras 70, 88, and 60. Barcelona Traction (n 1) paras 65–8 and 92. 64 For criticism of the Court’s decision in Diallo (Preliminary Objections) (n 41), see the Joint Dissenting Opinion of Judges Al-Khasawneh and Yusuf, Ahmadou Sadio Diallo (Guinea v DRC) (Merits), [2010] ICJ Rep 639, at 700 ff. See also the Dissenting Opinion of Judge Bennouna, 728. 65 Barcelona Traction (n 1) para 70. 62 63


100

The Development of International Law by the ICJ

was a need for some ‘permanent and close connection’ between the State exercising diplomatic protection and the corporation.66 Consistently with the Court’s decision in Barcelona Traction, the ILC Draft Articles do not incorporate a requirement of a genuine link with the state of incorporation.67 However, Article 9 of the Draft Articles does incorporate an exception, where the corporation (a) is controlled by nationals of another state, (b) the corporation has no substantial business activities in the state of incorporation, and (c) the seat of management and financial control of the corporation are both in another state. The ILC suggests that in such circumstances, that other state may be regarded as the state of nationality.68 As is well known, the decision of the Court in Barcelona Traction was, and remains, extremely controversial as a matter of law and legal policy. It has been suggested that the decision was out of step with customary international law, including state practice in investment treaties and lump sum settlement agreements. It has also been suggested that because, in practice, states will not exercise diplomatic protection in the absence of some genuine connection, excluding claims by states whose nationals have a substantial shareholding will in practice leave corporations and their shareholders bereft of a remedy. Yet for better or worse, Barcelona Traction can be seen as the ICJ’s single most relevant contribution to the law of diplomatic protection, and one that has shaped the subsequent evolution of the regime of international claims more generally. It is also, as noted by the ILC, consistent with customary international law. In 2003, the question was put to states in the Sixth Committee of the General Assembly whether a state of nationality should be entitled to exercise diplomatic protection in circumstances other than those exceptions identified in Barcelona Traction, and there was very little support for reconsideration of the rule.69 With the decision in Barcelona Traction, rights of shareholders could only rarely be espoused by way of diplomatic protection. In practice, they have come to be protected via other means, notably through special treaty regimes whose interaction with the general law of diplomatic protection is a matter of some controversy (discussed in subsection 4.5). Since Barcelona Traction, both the Court and the ILC have grappled with the scope of the exceptions averred to in the decision. The ILC accepted that, as a matter of fundamental principle, ‘a corporation is to be protected by the State of nationality of the corporation and not by the State or States of nationality of the shareholders in a corporation’.70 Nevertheless, the ILC’s Draft Articles incorporate two exceptions. The first permits the national state of a shareholder to exercise diplomatic protection in circumstances where the rights of the shareholder (as distinct from those of the corporation) are directly injured.71 While this may be 66

Barcelona Traction (n 1) para 70. See ILC Draft Articles (n 42), Commentary to Art 9, para 4. 68 See ILC Draft Articles (n 42), Art 9. 69 Of the fifteen delegates who spoke on this issue, only Germany suggested that Barcelona Traction should be reconsidered: see Official Records of the General Assembly, Fifty-Seventh Session, Supplement No 10 (A/57/10) 28. 70 ILC Draft Articles (n 42), Commentary to Art 11, para 1. 71 ILC Draft Articles (n 42), Art 12. 67


Diplomatic Protection

101

formulated as an exception to the general rule, it may also be characterized as following from first principle: since the claim is for direct injury to the direct rights of a national, such a claim can properly be brought by the state of nationality of the shareholder. The ICJ confirmed that a national state of a shareholder can exercise diplomatic protection to protect against infringement of the direct rights of shareholders, in its decision on preliminary objections and judgment on the merits in Diallo.72 The Court noted that the distinction between the rights of the company and the rights of the shareholder might appear to be an artificial one, but nevertheless considered that it was the correct approach. It stated: In the following paragraphs, the Court is careful to maintain the strict distinction between the alleged infringements of the rights of the two [companies] at issue and the alleged infringements of Mr. Diallo’s direct rights as associé of these latter . . . The Court understands that such a distinction could appear artificial in the case of [a company] in which the parts sociales are held in practice by a single associé. It is nonetheless well-founded juridically, and it is essential rigorously to observe it in the present case. Guinea itself accepts this distinction in the present stage of the proceedings, and most of its arguments are indeed based on it. The Court has to deal with the claims as they were presented by the Applicant.73

In its decision on the merits in Diallo, the Court came to examine the question of the scope of the direct rights of a shareholder. On this question, the Court effected a renvoi to national law.74 Based on its understanding of the applicable domestic law, it examined the direct rights of Mr Diallo (a) to take part and vote in general meetings; (b) to appoint a gérant; and (c) to oversee and monitor the management of the company.75 The Court did not recognize any applicable customary international law rules governing a shareholder’s substantive rights.76 Neither did the Court accept that Guinea could claim to vindicate Diallo’s ownership rights in his parts sociales.77 The Court emphasized that there is a distinction between the property of a corporation and that of the shareholder, even in the case of a single shareholder. The Court observes that international law has repeatedly acknowledged the principle of domestic law that a company has a legal personality distinct from that of its shareholders. This remains true even in the case of [a company] which may have become unipersonal in the present case. Therefore, the rights and assets of a company must be distinguished from the rights and assets of an associé. In this respect, it is legally untenable to consider, as Guinea argues, that the property of the corporation merges with the property of the shareholder. Furthermore, it must be recognized that the liabilities of the company are not the liabilities of the shareholder . . . 78

72

Diallo (Merits) (n 64) para 114; see also Diallo (Preliminary Objections) (n 41) 64. Diallo (Merits) (n 64) para 115 (references omitted). 74 Diallo (Merits) (n 64) para 104; see also Diallo (Preliminary Objections) (n 41) 64. 75 Diallo (Merits) (n 64) paras 117–48. 76 For a critique of this approach see B Juratowitch, ‘The Diplomatic Protection of Shareholders’ (2010) 81 BYIL 281. 77 Diallo (Merits) (n 64) para 151. 78 Diallo (Merits) (n 64) para 155. See also para 157. 73


102

The Development of International Law by the ICJ

On this issue, the decision of the majority attracted criticism even from within the Court. Judges Al-Khasawneh and Yusuf, in a Joint Dissenting Opinion, suggested that the Court had been ‘patently apologetic’,79 stating: Of course Guinea had to accept this distinction in view of the res judicata of the 2007 Judgment. However, we believe it was well within the Court’s power to take cognizance of the reality of the situation, in particular that where there is in effect one associé/gérant the infringement of the company rights is ipso facto infringement of the direct rights of the owner.

By insisting on a dogmatic application of a one-size-fits-all approach from Barcelona Traction (or rather on a narrow interpretation of Barcelona Traction that did not take account of the absence of a protecting state), the Court missed a chance to provide redress to Mr Diallo as a matter of equity without at the same time detracting from the formal force of its 2007 Judgment on Preliminary Objections. Equally importantly, the Court missed a chance to bring into line the standard of protection of investors like Mr Diallo with the standard now found in jurisprudence emanating from regional courts and arbitral tribunals. This latter standard, as had been previously alluded to, has arguably become an international minimum standard to which even those investors not covered by bilateral or multilateral investment treaties may be entitled.80 The second exception incorporated by the ILC in its Draft Articles (which was averred to in Barcelona Traction and which finds support in some arbitral awards)81 permits a state of nationality of the shareholder to bring a claim in circumstances where the corporation has ceased to exist in the state of incorporation for reasons unrelated to the injury, and in circumstances where (a) the corporation had, at the date of injury, the nationality of the state causing the injury and (b) incorporation in that state was a precondition for doing business there.82 The Court has not yet determined whether this exception reflects customary international law: in Diallo, it concluded that the exception did not apply on the facts.83 In an earlier decision in ELSI, a Chamber of the Court held that the United States was able to bring a claim against Italy in respect of damage suffered by an Italian company whose shares were wholly owned by two American companies.84 While this decision appears to broaden the scope for claims for injuries to shareholders, (a) the Chamber was concerned with interpretation of a specific treaty rather than general international law; and (b) the decision might be explained on the basis that the claim was for injury to the direct rights of the shareholders (the first exception), or that the company had ceased to exist because it had gone into

79

Diallo (Merits) (n 64) Joint Dissenting Opinion of Judges Al-Khasawneh and Yusuf, 708. Diallo (Merits) (n 64) 7. See ILC, Report of the Fifty-Eighth Session (n 42), Commentary to draft Art 11, para 9. 82 ILC Draft Articles (n 42), Art 11. 83 The Court left open whether Art 11(b) reflected customary international law: see Diallo (Preliminary Objections) (n 41) paras 91–3. 84 ELSI (n 35). 80 81


Diplomatic Protection

103

liquidation and the injury was caused by the state of incorporation (the second exception).85 Following ELSI, there were suggestions in commentaries, and in the work of the ILC, that the rules governing standing to bring a diplomatic protection claim under customary international law for injuries to shareholders may have become less restrictive. However, the two decisions in Diallo suggest that the trend is not towards an expansion of the exceptions to the Barcelona Traction rule that injuries to corporations must be vindicated by the state of incorporation. This results in a disparity in the international law protection of shareholders protected by an investment treaty, and those shareholders whose rights are protected only by customary international law vindicated by diplomatic protection claims.86 Investment arbitration claims may be brought by any investor, and the investment need not be held directly, so that claims may be brought by shareholders, even of a company incorporated in the host state.87 Those claims may encompass damages for injury to the shareholder’s ‘investment’, that investment being the shares in a company. As noted by the tribunal in Total v Argentina: The protection that [bilateral investment treaties] afford to . . . investors is . . . not limited to the free enjoyment of their shares but extends to the respect of the treaty standards as to the substance of their investments.88

Moreover, as noted in the Joint Dissenting Opinion of Judges Al-Khasawneh and Yusuf in Diallo cited above, apart from the disjuncture between the standing of shareholders bringing claims under investment treaties entered into by their state of nationality, the approach of the Court results in a disjuncture between the substantive standards by which the conduct of the host state is adjudged. For shareholders covered by an investment treaty, the international law protection offered by the treaty provides the standard by which the host state’s conduct is measured. For shareholders whose direct rights are vindicated by their state of nationality through diplomatic protection claims, the standard by which the host state’s conduct is measured is the domestic law of the host state. Effectively, the Court has concluded that there are no customary international law rights of shareholders that can be the subject of a diplomatic protection claim. The Court’s renvoi to domestic law in this context has severely limited the protection now afforded to shareholders by customary international law, and it stands in stark contrast to the protection offered to shareholders in the context of specific treaties. 85 See discussion in J Dugard, Fourth Report on Diplomatic Protection (2003) UN Doc A/CN.4/ 530, 10-1, paras 23–6. 86 See also Diallo (Merits) (n 64) Joint Dissenting Opinion of Judges Al-Khasawneh and Yusuf 701–2. 87 See eg CMS v Argentina (ICSID Case No ARB/01/8) (Decision on Jurisdiction), 17 July 2003, paras 66, 68; Siemens v Argentina (ICSID Case No ARB/02/8) (Decision on Jurisdiction), 3 August 2004, para 150. This can give and has given rise to criticisms where different tribunals constituted to determine claims brought by a shareholder and a company in respect of the same subject matter have reached different conclusions: CME v Czech Republic (Merits), 9 ICSID Rep 121; Lauder v Czech Republic (Merits), 9 ICSID Rep 66. 88 Total SA v Argentina (ICSID Case No ARB/04/01) (Preliminary Objections), 25 August 2006, para 74.


104

The Development of International Law by the ICJ

4.5 The influence of special regimes on the law of diplomatic protection The preceding examination of the ICJ’s approach to shareholders in diplomatic protection claims leads to a final consideration—that of the ICJ’s treatment of state practice in the context of investment claims as an agent for the development of customary international law. The ICJ has been consistently reluctant to find that the rules applicable to investment claims have impacted on the rules applicable to diplomatic protection claims under general international law, characterizing investment claims practice as lex specialis. In Barcelona Traction the ICJ noted the existence of special regimes which permitted claims to be brought in respect of injury to shareholders, noting that the protection of shareholders in international law was only achieved by reference to the special regimes: Thus, in the present state of the law, the protection of shareholders requires that recourse be had to treaty stipulations or special agreements directly concluded between the private investor and the State in which the investment is placed. States ever more frequently provide for such protection, in both bilateral and multilateral relations, either by means of special instruments or within the framework of wider economic arrangements. Indeed, whether in the form of multilateral or bilateral treaties between States, or in that of agreements between States and companies, there has since the Second World War been considerable development in the protection of foreign investments. The instruments in question contain provisions as to jurisdiction and procedure in case of disputes concerning the treatment of investing companies by the States in which they invest capital. Sometimes companies are themselves vested with a direct right to defend their interests against States through prescribed procedures. No such instrument is in force between the Parties to the present case.89

The Court characterized such regimes as lex specialis and did not consider that this practice had an impact on the customary international law rules applicable to diplomatic protection claims.90 The ILC confirmed that the international investment regime constitutes a lex specialis regime and that the rules applicable in that context do not govern diplomatic protection claims or contribute to the development of customary rules applicable to diplomatic protection claims.91 The same point was made by the ICJ in Diallo in 2007, distinguishing between direct claims by investors under the International Centre for the Settlement of Investment Disputes (ICSID) and diplomatic protection claims,92 and the majority of the Court did not depart from that approach in its decision on the merits in 2010. That the investment regime constitutes a lex specialis has also been acknowledged by a number of investment tribunals.93

89

Diallo (Preliminary Objections) (n 41) para 90. Diallo (Preliminary Objections) (n 41) paras 62–3. 91 ILC Draft Articles (n 42), Art 17. See also Diallo (Preliminary Objections) (n 41) para 88. 92 Diallo (Preliminary Objections) (n 41) para 88. 93 See eg Camuzzi v Argentina I (Decision on Jurisdiction), 11 May 2005, para 145; CH Schreuer et al, The ICSID Convention: A Commentary (Cambridge: CUP, 2nd edn 2009) 417. 90


Diplomatic Protection

105

The impact of the practice under investment treaties on customary law raises a broader question: the extent to which the practice of states in concluding and implementing treaties can contribute to the development of a customary international law rule. As Higgins observed, ‘one of the most difficult issues in contemporary international law is to know when a perceptible treaty practice suggests a change in customary international law, or whether it rather reflects that customary international law is still unchanged, and if different practices are required, a treaty is needed’.94 One can imagine the difficulties in circumstances where the treaty practice is inconsistent or limited to a particular region. But where there are literally thousands of investment treaties which provide standing for protection of shareholders’ rights, the claim to a change in customary international law must stand on solid ground. As has been noted, it is difficult to see what practice could constitute state practice in support of the development of a customary international law, other than the conclusion of treaties giving standing to vindicate wrongs against shareholders.95 Of greater concern is the disjuncture identified above between the substantive rights of shareholders which can be protected in limited circumstances under diplomatic protection, and the substantive rights of shareholders under an investment treaty.

5. Conclusions: progress and stagnation The ICJ has had regular opportunities to pronounce on matters of principle relating to diplomatic protection, with no fewer than eleven cases brought by way of diplomatic protection. In this way, diplomatic protection stands in contrast to other areas of international law which do not appear frequently before the Court. In addition, the law of diplomatic protection, although it has a long heritage, has only recently been the subject of codification work, with the ILC’s work concluding with the adoption of Draft Articles in 2006. In this context, it is hardly surprising that the ICJ has brought to bear a guiding influence on the development of the law of diplomatic protection. This is also partially attributable to the fact that the ICJ inherited a doctrine, the contours of which had been well defined by judicial and arbitral decisions, including in significant measure by the PCIJ. Those contours, including the very basis of the doctrine, have largely been affirmed by the ICJ, and the ICJ’s work in this field has framed the discussion of the doctrine in the ILC, and its Draft Articles as adopted in 2006. As a result, the ICJ has had ample opportunity to act as an agent of legal development, and has at times progressed the development of the law. It has commonly done so through the positing of a rule of residual application (for 94 Speech by Judge Higgins at the Meeting of Legal Advisers of the Ministries of Foreign Affairs at the United Nations, 29 October 2007 <http://www.icj-cij.org/presscom/files/7/14097.pdf> (accessed 17 May 2013) 3. 95 See Juratowitch (n 76) 299.


106

The Development of International Law by the ICJ

example, that nationality for international purposes is not determined exclusively within a state’s discretion) which finds special or exceptional application in particular cases. In recent years, both commentary and judicial decisions have been concerned with the question of protection of shareholders, both procedurally and in terms of substantive international law protection. This question has been and continues to be dominated by the Court’s decision in Barcelona Traction and the fundamental principle enunciated therein that a corporation’s interests should be protected by its state of nationality, rather than through a claim to vindicate the injury suffered by shareholders. While this principle may have a valid basis, the Court’s strict adherence to it has resulted in a situation where the doctrine of diplomatic protection is lagging behind concrete developments which must have had some transformative effect on international law protection of foreigners, with the result that many entities and persons will be left without any meaningful practical remedy. This is seen most vividly in the Court’s two decisions in Diallo, in which it took restrictive approaches both to the question of standing to bring claims for injuries to rights of shareholders and to the question of the substance of those direct rights of shareholders. In this regard, the Court has no claim to be an agent of legal development. As a result of the Court’s recent approach, there is a significant disjuncture between the substantive and procedural rights afforded to shareholders covered by an investment treaty and the substantive and procedural rights available to shareholders under customary international law. This disjuncture is also attributable to the Court’s treatment of the practice in international investment law as lex specialis. The current approach of the Court to the practice of investment tribunals positions the investment regime as one parallel to, rather than intersecting with, diplomatic protection claims. As a result, developments in investment law (which posit the shareholder protected by a treaty in a significantly advantageous position vis-à-vis a shareholder protected by customary international law) are considered as having no developmental impact on customary international law relating to diplomatic protection. As investment law continues to develop, it is likely that the decline in the use of diplomatic protection as a means to protect the interests of shareholders and companies will continue, and that this field of law (and the ICJ’s enduring influence on the protection of foreigners in general) will lessen in practical significance.


7 Jurisdictional Immunities Roger O’Keefe

1. Introduction The scope of the jurisdictional immunities owed by one state to another1 under customary international law is one of the more unsettled and combustible questions to have come before the International Court of Justice over the past decade. The ICJ’s answers to certain aspects of this question have already proved and are likely further to prove influential on, even decisive for, the development of the law, both in what they have said as to its contemporary content and in the conservative tone they have set. Nor has the Court always contented itself in this regard with its assigned role as a subsidiary source of international law, attempting in at least one instance to will customary rules into being through ipse dixit. In a more recent case, in contrast, it has engaged in an orthodox analytical survey of state practice and opinio juris supplemented by restrained reliance on argument from first principles. The results of the Court’s forays into the law of interstate immunities have been, variously, to crystallize, to catalyse the further formation of, to consolidate, and to set the seal on the customary rules at issue. Not all, however, of the Court’s statements on jurisdictional immunities have touched on controversy. Many have represented no more than textbook expositions of doctrinal principle as to the nature and implementation of such immunities. Dicta of this sort have served usefully to affirm or clarify certain fundamentals of the law of jurisdictional immunities, and have been restated since in a range of fora. In terms of its place in the wider development of the law of jurisdictional immunities, the Court did not, perhaps needless to say, give birth to this canonical

1 This chapter deals only with those jurisdictional immunities owed by one state to another. It does not deal with the separate but related question of the jurisdictional immunities owed by states in respect of officials of international organizations, a point at issue in Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) [1989] ICJ Rep 177, paras 40–60 and Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62. Some of what the Court had to say in the second case about the general nature of jurisdictional immunity is, however, considered below.


108

The Development of International Law by the ICJ

corpus of international rules. The law of state immunity, a corollary of the sovereign equality of states on which classical international law is premised, predates the Court’s involvement by centuries. The law of diplomatic immunity goes back even further. Leaving aside the straightforward application in United States Diplomatic and Consular Staff in Tehran of the established rules on the personal inviolability and immunity of diplomatic agents and consular officers,2 it was not until in 2002 that the Court rendered a judgment on the jurisdictional immunities applicable among states. Other international lawmaking processes created the field and shaped its basic contours. That said, the Court’s contribution has been more than mere filigree. In relation to immunities ratione personae beyond the diplomatic and head-of-state context, as well as to immunities generally in the context of criminal jurisdiction, especially where international crimes are alleged, the Court was drawn in while the customary law remained inchoate, enabling it to set its stamp on the emergent rules. In relation to civil claims against foreign states involving alleged violations of international rules for the humane treatment of individuals and groups, in particular where the allegation is of a violation of jus cogens, the Court was called on to intervene in the midst of a divided and bitterly controverted body of practice, placing it in the position of final arbiter. The present chapter considers the Court’s less contentious contributions to the international law of jurisdictional immunities before examining its impact on more disputed matters and its place in the wider milieu of normative development on point. The chapter comes with the caveat that the Court’s two judgments on immunities in the context of criminal proceedings against foreign state officials, namely Arrest Warrant of 11 April 2000 3 and Certain Questions of Mutual Assistance in Criminal Matters,4 were rendered only in 2002 and 2008 respectively, while its judgment in Jurisdictional Immunities of the State,5 on state immunity and civil proceedings for death or personal injury, was handed down as recently as February 2012. The relative freshness of this jurisprudence makes any assessment of the Court’s role in the development of international law in this area necessarily tentative and, as regards the last case, largely speculative.

2 See United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, paras 62–8 and 76–80. 3 Arrest Warrant of 11 April 2000 (DRC v Belgium) [2002] ICJ Rep 3. 4 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ Rep 177. Although the jurisdictional immunities from criminal jurisdiction owed in respect of foreign state officials were also invoked by the applicant in the further case of Certain Criminal Proceedings in France (Republic of the Congo v France) (Provisional Measures) [2003] ICJ Rep 102, the Court’s order has no bearing on the following discussion, since, as made clear at para 34, the Court was ‘not [at that stage of the proceedings] called upon to determine the compatibility with the rights claimed by the Congo of the [criminal] procedure [to that point] followed in France, but only the risk or otherwise of the French criminal proceedings causing irreparable prejudice to such claimed rights’. The case was removed from the Court’s list before oral argument on the merits. 5 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) Judgment of 3 February 2012 (<http://www.icj-cij.org/docket/files/143/16883.pdf> (accessed on 17 May 2013)).


Jurisdictional Immunities

109

2. Less contentious questions 2.1 Jurisdictional immunities in general The ICJ has in several cases articulated a few generally applicable axioms of the international law of jurisdictional immunities. It has also, slightly more contestably, asserted one more, accompanied by what might be called a recommendation of best practice. Some of these statements have already been received into the canon, and the most recent ones promise to be. The Court has underlined on numerous occasions the purely procedural nature of the immunity from the jurisdiction of another state’s courts to which international law may entitle a state or which international law may entitle that state to see accorded to certain individuals who represent it.6 The international law governing immunity from jurisdiction, the Court observed in Jurisdictional Immunities, is ‘entirely distinct from the substantive law which determines whether . . . conduct is lawful or unlawful’.7 Expanding on the point in the context specifically of state immunity, the Court said: The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether the conduct in respect of which the proceedings are brought was lawful or unlawful.8

The Court had earlier emphasized in Arrest Warrant that any immunity ratione personae from the jurisdiction of the courts of another state from which incumbent ministers for foreign affairs might benefit did not equate to ‘impunity for any crimes they might have committed’.9 ‘Jurisdictional immunity’, the Court remarked, ‘may well bar prosecution for a certain period’, but it ‘cannot exonerate the person to whom it applies from . . . criminal responsibility’.10 Recalling these words in the context of state responsibility in Jurisdictional Immunities, the Court reiterated that ‘the fact that immunity may bar the exercise of jurisdiction in a particular case does not alter the applicability of the substantive rules of international law’, so that ‘whether a State is entitled to immunity before the courts of another State is a question entirely separate from whether the international responsibility of that State is engaged and whether it has an obligation to make reparation’.11

6

See Arrest Warrant (n 3) para 60; Jurisdictional Immunities (n 5) paras 58 and 93. Jurisdictional Immunities (n 5) para 58. 8 Jurisdictional Immunities (n 5) para 93. See also para 60, where the Court explains that, insofar as the distinction between acta jure imperii and acta jure gestionis ‘is significant for determining whether or not a State is entitled to immunity from the jurisdiction of another State’s courts in respect of a particular act’, this distinction ‘has to be applied before that jurisdiction can be exercised, whereas the legality or illegality of the act is something which can be determined only in the exercise of that jurisdiction’. 9 Arrest Warrant (n 3) para 60, emphasis omitted. 10 Arrest Warrant (n 3) para 60. 11 Jurisdictional Immunities (n 5) para 100. 7


110

The Development of International Law by the ICJ

A corollary of the procedural nature of jurisdictional immunity identified by the Court in its Advisory Opinion in Immunity from Legal Process of a Special Rapporteur is ‘a generally recognized principle’, which states are ‘under an obligation to respect’, that ‘questions of immunity are . . . preliminary issues which must be expeditiously decided in limine litis’.12 Putting it simply, as the Court did later in Jurisdictional Immunities, ‘national courts have to determine questions of immunity at the outset of the proceedings, before consideration of the merits’:13 Immunity from jurisdiction is an immunity not merely from being subjected to an adverse judgment but from being subjected to the trial process. It is . . . necessarily preliminary in nature. Consequently a national court is required to determine whether or not a foreign State is entitled to immunity as a matter of international law before it can hear the merits of the case brought before it and before the facts have been established.14

A consequence of the preliminary character of a plea of immunity was that ‘[i]mmunity cannot . . . be made dependent upon the outcome of a balancing exercise of the specific circumstances of each case to be conducted by the national court before which immunity is claimed’.15 As to the relationship that may exist between the law of jurisdictional immunity and the law of state responsibility, the Court in Certain Questions of Mutual Assistance—having asserted that ‘the State which seeks to claim immunity for one of its State organs’, including one of its officials, ‘is expected to notify the authorities of the other State concerned’, so as to ‘allow the court of the forum State to ensure that it does not fail to respect any entitlement to immunity and . . . thereby engage the responsibility of that State’16—took the view that ‘the State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs’.17 The ICJ’s doctrinally unremarkable but helpful statements on the nature and implementation of jurisdictional immunity have been endorsed by a range of actors. For example, the Swiss Federal Criminal Court has recalled the ICJ’s dictum from Immunity from Legal Process of a Special Rapporteur to hold that ‘the question of immunity . . . must be considered at the very earliest stages of the proceedings’.18 The Court of Appeal of England and Wales quoted the same dictum verbatim in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia, recounting that ‘questions of immunity are . . . preliminary issues which must be expeditiously

12 Immunity from Legal Process of a Special Rapporteur (n 1) paras 63 and 67(2)(b); Jurisdictional Immunities (n 5) para 82. 13 Jurisdictional Immunities (n 5) para 106. 14 Jurisdictional Immunities (n 5) para 82. 15 Jurisdictional Immunities (n 5) para 106. 16 Certain Questions of Mutual Assistance (n 4) para 196. 17 Certain Questions of Mutual Assistance (n 4) para 196. 18 A v Ministère public de la Confédération, B and C dossier no. BB.2011.140, decision of 25 July 2012 (Swiss Fed Crim Ct), para 5.2, author’s translation.


Jurisdictional Immunities

111

decided in limine litis’.19 The identical words were treated as canonical by the UN Secretariat in its preparatory study on the immunity of state officials from foreign criminal jurisdiction,20 prepared for the assistance of the ILC, and by the ILC’s first special rapporteur on the topic.21 The latter has also reiterated the Court’s more general affirmation in Arrest Warrant that immunity from foreign criminal jurisdiction is a procedural, not substantive, question.22 As to the Court’s more doubtful assertion in Certain Questions of Mutual Assistance as to notification of the forum state’s authorities, this has been endorsed and seemingly elevated to a rule of law by the ILC’s special rapporteur in relation to at least the immunity ratione materiae of state officials from foreign criminal jurisdiction.23 But it has equally been suggested by states in the Sixth Committee of the UN General Assembly that ‘whether the immunity of State officials other than Heads of State, Heads of Government and foreign ministers had to be claimed actively by the officials’ home State’ was ‘a question that deserved further consideration’.24 Either way, the ICJ’s statement has set the agenda.

2.2 State immunity and civil jurisdiction In its February 2012 Judgment in Jurisdictional Immunities, the Court made, inter alia, three general, more-or-less uncontentious contributions to the international law of state immunity in the context of civil proceedings. All of these should prove, to varying degrees, of significance to the consolidation of customary international law and, in one respect, to its correct implementation at the national level.

2.2.1 State immunity as an international legal obligation Most fundamentally, the Court observed that state immunity from civil proceedings in the courts of another state ‘had been “adopted as a general rule of customary international law solidly rooted in the current practice of States”’.25 This practice showed ‘that, whether in claiming it for themselves or according it to others, States

19 Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (2006) 129 ILR 629 (UKHL), 663, para 30 (Mance LJ). 20 Immunity of State Officials from Foreign Criminal Jurisdiction. Memorandum by the Secretariat, UN Doc A/CN.4/596 (31 March 2008) 143, para 220. 21 See RA Kolodkin, Preliminary Report on Immunity of State Officials from Foreign Criminal Jurisdiction (2008) UN Doc A/CN.4/601, 33, para 68; RA Kolodkin, Third Report on Immunity of State Officials from Foreign Criminal Jurisdiction (2011) UN Doc A/CN.4/646, 6–7, para 11. 22 See Kolodkin, Preliminary Report (n 21) 32, para 66. 23 See Kolodkin, Third Report (n 21) 8–9, paras 16–18. See also Re Gorbachev, City of Westminster Magistrates’ Court (Daphne Wickham, Deputy Senior District Judge) 30 March 2011, unreported. 24 ILC, Report of the Sixtieth Session (2008) UN Doc A/CN.4/606 (21 January 2009) 19, para 97. 25 Jurisdictional Immunities (n 5) para 56, quoting ILC Ybk 1980 II/2, 147, para 26.


112

The Development of International Law by the ICJ

generally proceed on the basis that there is a right to immunity under international law, together with a corresponding obligation on the part of other States to respect and give effect to that immunity’.26 This ‘rule of State immunity’, which was said to occupy ‘an important place in international law and international relations’, derives, the Court explained, ‘from the principle of [the] sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order’.27 These statements, while doctrinally banal, are not without importance, putting paid once and for all, as they must surely do, to the threadbare argument that the ‘grant’ of state immunity by one state to another is no more than a matter of comity, and therefore discretionary, rather than an obligation imposed by customary international law. While the basis of state immunity in mandatory customary rules has long been recognized, including by other international courts,28 the Court’s reaffirmation of this most elementary of doctrinal truths—after the US Supreme Court and, only months prior to the ICJ’s Judgment, the Court of Final Appeal of the Hong Kong Special Administrative Region’s anachronistic endorsements of the view that the grant of state immunity is a discretionary matter of comity29—will doubtless reverberate.

2.2.2 Proceedings for the recognition and enforcement of a foreign judgment The Court also expounded in Jurisdictional Immunities on the nature of proceedings for the recognition and enforcement, as distinct from execution, of a foreign judgment—that is, for, in effect, converting a foreign judgment into a local one by means of the grant of exequatur or some equivalent municipal legal procedure. The Court explained: 128. Where a court is seised, as in the present case, of an application for exequatur of a foreign judgment against a third State, it is itself being called upon to exercise its jurisdiction in respect of the third State in question. It is true that the purpose of exequatur proceedings is not to decide on the merits of a dispute, but simply to render an existing judgment enforceable on the territory of a State other than that of the court which ruled on the merits. It is thus not the role of the exequatur court to re-examine in all its aspects the substance of the case which has been decided. The fact nonetheless remains that, in granting or refusing exequatur, the court exercises a jurisdictional power which results in the foreign judgment being given effects corresponding to those of a judgment rendered on the merits in the 26

27 Jurisdictional Immunities (n 5) para 57. Jurisdictional Immunities (n 5) para 56. See Al-Adsani v UK (2001) 123 ILR 24, 40, paras 54–6; Fogarty v United Kingdom (2001) 123 ILR 53, 65, paras 34–6; McElhinney v Ireland (2001) 123 ILR 73, 84–5, paras 35–7; Kalogero-poulou and Others v Greece and Germany (2002) 129 ILR 537, 546. 29 See Republic of Austria and Others v Altmann (2004) 147 ILR 681, 689 (USSC); DCR v FG Hemisphere Associates LLC (No. 1) (2011) 147 ILR 376, 451, para 228, 452, para 231 (CFA HKSAR) (‘a state’s prerogative to decide on the scope of the immunity it is prepared to confer on other states’), and 464, para 272 (‘[c]onsulting its own interests in the light of its own foreign policy, the PRC favours in principle the solution of disputes which involve foreign states through diplomatic channels and similar means, rather than submitting such disputes to the compulsory, and necessarily less flexible, jurisdiction of a municipal court’) (Chan and Ribeiro PJJ and Mason NPJ) (CFA HKSAR 2011). 28


Jurisdictional Immunities

113

requested State. The proceedings brought before that court must therefore be regarded as being conducted against the third State which was the subject of the foreign judgment. ... 130. It follows from the foregoing that the court seised of an application for exequatur of a foreign judgment rendered against a third State has to ask itself whether the respondent State enjoys immunity from jurisdiction—having regard to the nature of the case in which that judgment was given—before the courts of the State in which exequatur proceedings have been instituted. In other words, it has to ask itself whether, in the event that it had itself been seised of the merits of a dispute identical to that which was the subject of the foreign judgment, it would have been obliged under international law to accord immunity to the respondent State.30

In short, proceedings for the recognition and enforcement of a foreign judgment are judicial proceedings in their own right, and as such implicate the judgment debtor state’s immunity from the jurisdiction of the court in which the application for recognition and enforcement is made in precisely the same way as would have proceedings on the merits of the claim. It is safe to predict that these two paragraphs from the ICJ’s Judgment will become the locus classicus on point. Nor is their interest purely academic. While prior to the Court’s dicta there was a degree of appreciation in national courts that international law treated state immunity from proceedings for the recognition and enforcement of a foreign judgment (and, for that matter, of an arbitral award) as if they were proceedings on the merits,31 the position was obscured in one influential jurisdiction by statute32 and seemingly misunderstood by certain governments— among them those involved in the instant case,33 whose confusion the Court was obliged to dispel.34 The latter’s limpid elucidation of the correct approach to be followed represents a real and surely decisive service to the harmonization of national practice in this regard.

2.2.3 The immunity of state property from foreign measures of constraint Article 19 of the United Nations Convention on Jurisdictional Immunities of States and Their Property 200435 prohibits, as a prima facie rule subject to exceptions, the taking of judicial measures of constraint, such as attachment and 30

Citation omitted. See the Supreme Court of Canada in Kuwait Airways Corporation v Iraq and Bombardier Aerospace (2010) 147 ILR 303 (CanSC) and the UK Supreme Court in NML Capital Limited v Argentina (2011) 147 ILR 575 (UKSC), 587, para 29 (Lord Phillips PSC), 622, para 115 (Lord Collins JSC), 630, para 148 (Lord Clarke JSC). The ICJ refers to both cases in Jurisdictional Immunities (n 5) para 130. 32 See Civil Jurisdiction and Judgments Act 1982 (UK), s. 31(1) (‘Overseas judgments given against states, etc’), as elaborated on in NML Capital v Argentina (n 31) 592–3, paras 48–9 and 594, para 54 (Lord Phillips PSC), 622–3, paras 117–19 (Lord Collins JSC). 33 See Jurisdictional Immunities (n 5) paras 122–3, where the Court recalls the parties’ submissions. 34 See Jurisdictional Immunities (n 5) paras 125–126. 35 United Nations Convention on Jurisdictional Immunities of States and Their Property, 2 December 2004, UN Doc A/RES/59/38, Annex (16 December 2004) (not in force) (‘UN Convention on State Immunity’/‘UNCSI’). 31


114

The Development of International Law by the ICJ

execution, against property of a foreign state located in the territory of the forum state. The most laboriously drafted paragraph of Article 19, namely paragraph (c), specifies an exception to the immunity of foreign state property36 in the forum state where and to the extent that ‘it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes’.37 At least the essence of Article 19(c)’s ‘commercial use’ exception to the immunity of foreign state property is based on a considerable degree of state practice.38 In Jurisdictional Immunities of the State, Germany relied on the provisions of Article 19, arguing that they ‘codified, in relation to the issue of immunity from enforcement [i.e. execution], the existing rules under general international law’.39 In response, the International Court of Justice stated: 117. When the United Nations Convention was being drafted, these provisions gave rise to long and difficult discussions. The Court considers that it is unnecessary for purposes of the present case to decide whether all aspects of Article 19 reflect current customary international law. 118. Indeed, it suffices for the Court to find that there is at least one condition that has to be satisfied before any measure of constraint may be taken against property belonging to a foreign State: that the property must be in use for an activity not pursuing government noncommercial purposes, or that the State which owns the property has expressly consented to the taking of a measure of constraint, or that that State has allocated the property in question for the satisfaction of a judicial claim.

In other words, the Court held that the most significant exception to the immunity of state property from post-judgment measures of constraint, viz the ‘commercial use’ exception, reflects customary international law. What it did not say, and was not required to say, was whether the proviso to Article 19(c), ‘that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed’, is also consonant with custom. The Court’s holding, although scarcely unexpected given the weight of state practice behind it, nonetheless confirms customary international law’s historic shift away from the absolute immunity of the property of a state from post-judgment 36 The formulation ‘the immunity of State property’ is used here by way of convenient shorthand for ‘the immunity of a state in respect of its property’. As a matter of international law, it is in the state alone, and not in its property, that any entitlement to immunity from the jurisdiction of the courts of another state vests. 37 The proviso is added that ‘post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed’. 38 See eg Foreign Sovereign Immunities Act 1976 (US) (‘FSIA (US)’), s. 1610(a)(2); State Immunity Act 1978 (UK) (‘SIA (UK)’), s. 13(4); State Immunity Ordinance 1981 (Pakistan) (‘SIO (Pak)’), s. 14(2)(b); State Immunity Act (Canada) (‘SIA (Can)’), s. 12(1)(b); Foreign States Immunities Act 1981 (South Africa) (‘FStIA (SA)’), s. 14(3); Foreign States Immunities Act 1985 (Australia) (‘FStIA (Aus)’), s. 32(1) and (3)(a); State Immunity Act 1985 (Singapore) (‘SIA (Sing)’), s. 15(4); Foreign States Immunity Law 2008 (Israel) (‘FSIL (Isr)’), s. 16(1). See also Philippine Embassy Bank Account Case, 65 ILR 146 (1977) and comparative case law cited therein; Société Sonatrach v Migeon, 77 ILR 525, 527 (1985); Kingdom of Spain v Company X SA, 82 ILR 38, 41 (1986); Abbott v Republic of South Africa, 113 ILR 411, 419–24 (1992) and comparative case law cited therein. 39 Jurisdictional Immunities (n 5) para 115.


Jurisdictional Immunities

115

measures of foreign judicial constraint towards an attenuated form of restrictive immunity. It remains to be seen whether those jurisdictions that still subscribe to the former position move with the Court. At the very least, they can no longer take umbrage should a foreign court grant execution against commercial property of theirs situate in the forum state.

3. More contentious questions 3.1 The immunity of state officials from foreign criminal jurisdiction In Arrest Warrant, the ICJ was called on to determine the international lawfulness of the issue and circulation by Belgium of an international warrant for the arrest, on allegations of grave breaches of the Geneva Conventions and crimes against humanity, of an individual who at the time of the issue and circulation of the warrant, although not at the time of his alleged commission of the offences, was the country’s minister for foreign affairs. In its resulting Judgment, the Court, with only the sparest of state practice to go on, took it upon itself effectively to posit ex cathedra not only the determinative rule of the relevant international law but also its supposed rationale, from which the Court’s conclusions, although supported in part by one strand of the very little practice that existed, flowed as corollaries. In addition, it took the opportunity in a carefully sown dictum to attempt to close the door to future customary developments on a controversial point not, in the event, at issue before it. The Court’s methodologically activist but doctrinally conservative Judgment, both affirmed and tempered by subsequent statements in Certain Questions of Mutual Assistance and furthered by a dictum in Jurisdictional Immunities of the State, has already had a weighty impact on the law, proving decisive in a string of national judgments and prosecutorial decisions to the same effect and heavily influencing the commencement and course of, as well as states’ reactions to, the International Law Commission’s current work on the immunity of state officials from foreign criminal jurisdiction. Indeed, at the outset of the ILC’s work, the first special rapporteur on the topic declared his belief that ‘the 2002 Judgment of the International Court of Justice in the Arrest Warrant case was both a correct and also a landmark decision’, ‘adopted by a large majority and contain[ing] a clear and accurate depiction of the current state of international law in this field’.40

3.1.1 Immunity ratione personae and inviolability 3.1.1.1 The range of beneficiaries Prior to the ICJ’s Judgment in Arrest Warrant, serving diplomats41 and heads of state were alone in being incontrovertibly the beneficiaries under customary 40

ILC, Report of the Sixtieth Session (2008) UN Doc A/63/10, 341, para 311. The term is used here to refer to diplomatic agents within the meaning of the Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95 (VCDR), Art. 1(e); to members of the diplomatic staff of a special mission within the meaning of the Convention on Special Missions, 41


116

The Development of International Law by the ICJ

international law of an absolute immunity ratione personae from foreign criminal jurisdiction and from foreign judicial measures to compel their giving evidence as a witness, as well as of inviolability from foreign measures of personal constraint such as arrest and detention.42 In contrast, the position of serving heads of government and, even more so, of serving ministers for foreign affairs was uncertain. There was some evidence to suggest that they too benefited from immunity ratione personae and from inviolability,43 but this was slight and ambivalent.44 Against the normative background of a state’s jurisdiction within its own territory to enforce its criminal law in the absence of a positive rule of international law compelling its abstention, it was more plausible that these latter two officers of state, and particularly ministers for foreign affairs, benefited only from the immunity ratione materiae from foreign criminal jurisdiction from which any state official benefits under customary international law in respect of acts performed in an official capacity. In Arrest Warrant, however, the ICJ ruled that a serving minister for foreign affairs was entitled to absolute immunity ratione personae from foreign criminal jurisdiction and to inviolability from foreign measures of personal constraint.45 The Court presented its conclusion as one of customary international law,46 but it adduced no state practice or opinio juris in support. Instead it argued teleologically. The immunities that as a matter of customary international law protected ministers for foreign affairs did so, the Court reasoned, ‘to ensure the effective performance of their functions on behalf of their respective States’.47 ‘In the performance of these functions’, the Court continued, a minister for foreign affairs ‘is frequently required to travel internationally, and thus must be in a position freely to do so whenever the need should arise’.48 ‘[A]ccordingly’, the Court concluded, ‘the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her

8 December 1969, 1400 UNTS 231 (CSM), Art. 1(h); and to members of the diplomatic staff of a mission to an international organization within the meaning of the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, 14 March 1975, UN Doc A/CONF.67/16 (not in force) (VCRS), Art. 1(1)(28). 42 In the case of diplomats, this immunity ratione personae and inviolability are codified. See VCDR, Arts 29, 31(1) and (3), and 40(1); CSM, Arts 29, 31(1) and (3), and 42(1); VCRS, Arts 28 and 30(1) and (3). What distinguishes heads of state from diplomats is that the immunity ratione personae and inviolability that serve to shield them are opposable to all foreign states, and not just to the receiving/host and transit states. 43 See eg CSM, Art 21(2): ‘The Head of the Government, the Minister for Foreign Affairs and other persons of high rank, when they take part in a special mission of the sending State, shall enjoy in the receiving State or in a third State, in addition to what is granted by the present Convention, the facilities, privileges and immunities accorded by international law.’ See also, mutatis mutandis, VCRS, Art 50(2). 44 First, neither CSM, Art 21(2) nor VCRS, Art 50(2) presupposes that the ‘immunities accorded by international law’ to heads of government and ministers for foreign affairs comprise immunity ratione personae from criminal jurisdiction and inviolability or, for that matter, are identical in content. Secondly, and more basically, whether either provision accords with customary international law is unclear. 45 Arrest Warrant (n 3) para 54. 46 See Arrest Warrant (n 3) paras 52 and 53. 47 Arrest Warrant (n 3) para 53. 48 Arrest Warrant (n 3) para 53.


Jurisdictional Immunities

117

office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability’.49 This immunity and inviolability for the duration of the minister’s term of office are without regard, the Court specified, to the capacity, public or private, in which the impugned acts were performed or, indeed, to whether they were performed during or prior to that term of office.50 Nor can any distinction be drawn between official and private visits to foreign states.51 The Court noted that it was called on to address the immunity and inviolability only of a minister for foreign affairs.52 At the same time, it alluded to the implicitly cognate immunities from which, inter alia, heads of government were protected by international law;53 and it highlighted in passing the analogous representative capacities under international law of a minister for foreign affairs and a head of government, both being taken, like the head of state, to speak for the state solely by virtue of their office.54 Nor did the Court say that other officers of state did not benefit from absolute immunity ratione personae and from inviolability. Indeed, it considered it ‘firmly established’ that ‘certain holders of high-ranking office in a State’, of which the head of state, head of government, and minister for foreign affairs were cited as examples, ‘enjoy immunities from jurisdiction in other States’.55 But the Court subsequently specified in Certain Questions of Mutual Assistance, without explanation beyond noting that neither was a diplomat or on a special mission, that at least two officers of state, namely a senior prosecuting magistrate (procureur de la République) and the head of national security, do not benefit under customary international law from immunity ratione personae from foreign criminal jurisdiction.56 The ICJ’s ruling in Arrest Warrant on the minister for foreign affairs and its heavy-handed hint in the same as to the head of government have already proved instrumental in the development of the law. It now seems generally taken as read that both these officers of state are the beneficiaries of absolute immunity ratione personae from foreign criminal jurisdiction and of inviolability from foreign measures of personal constraint. In Belgium, where Arrest Warrant originated, the Court of Cassation held the year after the ICJ’s Judgment that customary international law ‘prohibits heads of . . . Government from being the subject of proceedings before the criminal courts of foreign States’.57 In Italy, the Court of Cassation

49

Arrest Warrant (n 3) para 54. Arrest Warrant (n 3) para 55. In short, immunity and inviolability enured ratione personae. 51 Arrest Warrant (n 3) para 55. 52 Arrest Warrant (n 3) para 51. 53 See Arrest Warrant (n 3) para 51. 54 See Arrest Warrant (n 3) para 53. 55 Arrest Warrant (n 3) para 51. That a head of state benefits from absolute immunity ratione personae from foreign criminal jurisdiction and inviolability from foreign measures of constraint was subsequently affirmed by the Court in Certain Questions of Mutual Assistance (n 4) paras 170 and 174. 56 Certain Questions of Mutual Assistance (n 4) para 194. 57 Re Sharon and Yaron (2003) 127 ILR 110, 123 (Belg CoC). The Court of Cassation’s epigrammatic Judgment does not refer to the ICJ’s ruling in Arrest Warrant, but this was doubtless no more than a matter of civil law judicial form. The subsequently inserted article 1bis of the Preliminary Title of Chapter I of the Belgian Code of Criminal Procedure provides for the immunity of ‘heads of state, 50


118

The Development of International Law by the ICJ

has stated obiter that heads of government and ministers for foreign affairs ‘clearly’ benefit under customary international law from immunity ratione personae from foreign criminal jurisdiction and personal inviolability.58 The UN Secretariat, in its study on the immunity of state officials for the ILC, described the ICJ’s Judgment in Arrest Warrant as ‘an authoritative assessment of the state of customary international law with respect to the immunity ratione personae of the minister for foreign affairs, which could be used, mutatis mutandis, to justify the immunity of the incumbent head of Government’.59 As for the ILC itself, while not every member of the Commission has been convinced that the ICJ’s decision as to ministers for foreign affairs had ‘a firm basis in customary international law’,60 there has been ‘broad agreement’,61 strongly informed by the Court’s Judgment in Arrest Warrant, that immunity ratione personae is enjoyed not only by heads of state but also by heads of government and ministers for foreign affairs.62 This position has been endorsed by states in discussion in the Sixth Committee.63 That said, the Court in Arrest Warrant was pushing at an open door. While there was precious little proof positive that immunity ratione personae extended to ministers for foreign affairs and heads of government, few states would have dissented from the suggestion. In this light, the Court’s ruling on the minister for foreign affairs and its prompting on the head of government, while more than merely declaratory, are perhaps better seen as having crystallized, rather than conjured up, customary international law, even were the latter formally possible.64 More singularly influential has been the Court’s nakedly policy-based approach to identifying who benefits as a matter of custom from immunity ratione personae

heads of government, and ministers for foreign affairs during the period when they exercise their function’, to the extent that this is ‘in conformity with international law’. 58 Italy v Djukanović ILDC 74 (IT 2004) para 10. 59 Immunity of State Officials. Memorandum by the Secretariat (n 20) 78, para 121. 60 ILC, Report of the Sixtieth Session (n 40) 334, para 290. See also ILC, Report of the Sixty-Third Session (2011) UN Doc. A/66/10, 225, para 132; ILC, Report of the Sixty-Fourth Session (2012) UN Doc A/67/10, 99, para 115. 61 ILC, Report of the Sixtieth Session (n 40) 339, para 307. 62 See also Kolodkin, Preliminary Report (n 21) 58, para 111; RA Kolodkin, Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction (2010) UN Doc A/CN.4/631, 4, para 7( j ) and 20, para 35; C Escobar Hernández, Preliminary Report on Immunity of State Officials (2012) UN Doc A/CN.4/654, 8, para 33 and 14, para 63; ILC, Report of the Sixty-Fourth Session (n 60) 100, para 116. 63 See Escobar Hernández, Preliminary Report (n 62) 10, para 44. See also UN Doc A/C.6/66/ SR.18 (2 December 2011) 10, para 53 (Mexico); UN Doc A/C.6/66/SR.19 (22 November 2011) 10, para 56 (Hungary); UN Doc A/C.6/66/SR.24 (1 December 2011) 13, para 72 (Indonesia); UN Doc. A/C.6/66/SR.26 (7 December 2011) 13, para 66 (Belgium) and 15, para 78 (Austria); UN Doc A/ C.6/66/SR.27 (8 December 2011) 3, para 9 (China), 4, para 24 (Sri Lanka), 6, para 40 (Belarus), 7, para 45 (Iran), 9–10, para 66 (Russia), 10–11, para 72 (Portugal), 11–12, para 79 (India), and 13, para 87 (New Zealand); UN Doc A/C.6/66/SR.28 (2 December 2011) 3, para 10 (UK), 5, para 22 (Israel), 6, para 29 (Singapore), 7, para 35 ( Japan), 8–9, para 44 (Algeria), 10, para 52 (Kenya), 10, para 58 (Netherlands), and 12, para 65 (Romania). 64 It may be unnecessary but useful to recall that, according to the orthodox position enunciated in Article 38(1)(d ) Statute of the International Court of Justice, decisions of the ICJ can constitute no more than a subsidiary formal source of rules of international law.


Jurisdictional Immunities

119

and inviolability. The Court’s substitution of purposive logic for the search for state practice and opinio juris has seemingly become the accepted methodology to this end. The English magistrates’ courts have twice relied on the ICJ’s approach to recognize the ersatz customary international immunity ratione personae from criminal jurisdiction of a visiting minister for defence,65 a reliance and outcome mirrored in dicta from the Swiss Federal Criminal Court66 and in the position accepted in the abstract by the senior prosecuting magistrate of the Paris Court of Appeal.67 One English magistrates’ court has done and found the same in respect of a visiting minister for commerce and international trade.68 The ICJ’s reasoning in Arrest Warrant has similarly framed the debate within the ILC and the Sixth Committee as to which, if any, other state officials enjoy immunity ratione personae from foreign criminal jurisdiction.69 At the same time, the ICJ’s reference in Arrest Warrant to holders of ‘highranking office’ and its repeated assimilation of ministers for foreign affairs to heads of state and heads of government has been taken as a cue by most that the beneficiaries under customary international law of immunity ratione personae from criminal jurisdiction and of inviolability are relatively few. For its part, a Divisional Court of the High Court of England and Wales—recalling the ICJ’s statements in both Arrest Warrant and Certain Questions of Mutual Assistance,70 considering ‘of note’ the Court’s ruling in the latter as to the head of national security,71 highlighting Special Rapporteur Kolodkin’s reference to a ‘narrow circle’ of high-ranking officials,72 and believing that the Court’s words in Arrest Warrant implied that in order to fall within this circle ‘it must be possible to attach to the individual in question a similar status’ to that of a head of state or head of government, these two office-holders being ‘the paradigm of those entitled to such immunity’73—has held that the head of the executive office of the national security council of a foreign state is not entitled to immunity ratione personae from criminal jurisdiction.74 More generally, the Swiss Federal Criminal Court has recalled that, ‘[i]n the Yerodia case, the ICJ specified that it was high-ranking

65 Re Mofaz (2004) 128 ILR 709, 711–12 mistakenly referring throughout to ‘State immunity’); Re Barak City of Westminster Magistrates’ Court, 29 September 2009, unreported. 66 See A v Ministère public de la Confédération (n 18) para 5.4.2. 67 Procureur Général (Cour d’Appel de Paris), correspondence reference 2007/09216/SGE, 28 February 2008. The case ultimately implicated the immunity ratione materiae of a former US Secretary of Defense, but the Public Prosecutor relied on Arrest Warrant, and indeed on the practice of the UK magistrates’ courts, to assert that a serving Secretary of Defense would be entitled to the immunity ratione personae recognized by the ICJ. 68 Re Bo Xilai (2005) 128 ILR 713, 714. 69 As regards the ILC, see eg Kolodkin, Preliminary Report (n 21) 60–3, paras 117–21; Report of the Sixtieth Session (n 40) 334, para 290; Report of the Sixty-Fourth Session (n 60) 100, para 116. As regards the Sixth Committee, see nn 63 and 77. 70 Khurts Bat v Investigating Judge of the German Federal Court (2011) 147 ILR 633, 652–53, paras 56–8. 71 Khurts Bat (n 70) 653, para 58. 72 Khurts Bat (n 70) 653, para 59. 73 Khurts Bat (n 70) 653, para 59. 74 Khurts Bat (n 70) 653, para 61.


120

The Development of International Law by the ICJ

representatives who benefit’ from immunity ratione personae.75 Similarly, the talk within the ILC76 and the Sixth Committee77 in the context of the former’s work on the immunity of state officials has consistently been of ‘high-ranking’, ‘high-level’, and ‘senior’ officials and posts, with reference being made repeatedly to the ICJ’s Judgments in Arrest Warrant and Certain Questions of Mutual Assistance. In the end, it seems that precisely which state officials satisfy both the functional criterion and the apparent criterion of rank will come down to the preponderance of state practice and opinio juris on point. In other words, while the ICJ has provided the logical substrate and a potent catalyst to the development of the law, in the final analysis the international legal availability of immunity ratione personae from criminal jurisdiction and of inviolability will be a product of the formally orthodox customary lawmaking process. 3.1.1.2 An international crimes exception? What was ultimately at issue in Arrest Warrant was whether an exception existed under customary international law to immunity ratione personae from foreign criminal jurisdiction and to inviolability from foreign measures of personal constraint when the allegations against the state official were of war crimes and crimes against humanity. The embryonic state practice of direct relevance had been mixed to that point, although the tendency had been to uphold immunity ratione personae. On the one hand, Belgium had abrogated by statute what were otherwise internationally recognized immunities, both ratione personae and ratione materiae, from criminal jurisdiction when the proceedings related to war crimes, crimes against humanity, and genocide.78 On the other hand, the Spanish courts had dismissed on immunity grounds three separate private applications for the prosecution for international crimes of a serving head of state;79 four of the UK’s Law Lords had remarked obiter in Pinochet (No 3) that a serving head of state could rely on immunity ratione personae as a bar to prosecution in a foreign court for the crime of

75 A v Ministère public de la Confédération (n 18) para 5.3.1, author’s translation. The reference to ‘the Yerodia’ case is to Arrest Warrant, Abdoulaye Yerodia Ndombasi being the name of the Congolese Minister for Foreign Affairs at the centre of the case. 76 See eg Kolodkin, Preliminary Report (n 21) 43, para 90; ILC, Report of the Sixtieth Session (n 40) 334, para 290; Kolodkin, Second Report (n 62) 20–1, paras 35 and 37; Escobar Hernández, Preliminary Report (n 62) 8, para 33 and 14, para 62. 77 See eg ILC, Report of the Sixtieth Session (n 24) 20, paras 102–3; UN Doc A/C.6/66/SR.27 (n 63) 3, para 9 (China), 4, para 24 (Sri Lanka), and 9–10, para 66 (Russia); A/C.6/66/SR.28 (n 63) 3, para 10 (UK), 5, para 22 (Israel), 6, para 29 (Singapore), 7, para 35 (Japan), 10, para 52 (Kenya), and 12, para 65 (Romania). 78 See Law of 15 June 1993 on the punishment of grave breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18 June 1977, as amended by the Law of 10 February 1999 on the punishment of grave breaches of international humanitarian law, art 5(3). 79 See Hassan II, Audiencia Nacional (Central Examining Magistrate No 5) 23 December 1998; Obiang Nguema et al, Audiencia Nacional (Central Examining Magistrate No 5) 23 December 1998; Castro, Audiencia Nacional (Plenary) 4 March 1999.


Jurisdictional Immunities

121

torture embodied in the Torture Convention;80 the French Court of Cassation had upheld the immunity ratione personae of a serving foreign head of state in private criminal proceedings alleging the offence of aircraft sabotage provided for in the Convention for the Suppression of Unlawful Acts against the Safety of Civilian Aircraft;81 and in 2001 the Danish prosecuting authorities had rejected a private application for the prosecution of a foreign ambassador alleged to have been responsible in a former capacity for the crime of torture within the meaning of the Torture Convention.82 But what was in many ways more significant was the temper of the times. In the wake of the celebrated successive decisions of the House of Lords in 1998 and 1999 in the Pinochet proceedings83 and of a brusque dictum of the District Court of Amsterdam in 2000 in the Bouterse case84 (all three on the distinct question of immunity ratione materiae as a bar to prosecution for international crimes), a progressive triumphalism, an atmosphere of Whig-historical inevitability, led many to imagine that it was only a matter of time before what was billed as yesteryear’s horizontal, atomistic international law of mutual non-interference, with its fusty privileging of the jurisdictional immunities owed by one state to another, made way for a modern, vertical, collectivist international law in which, in the fight against impunity for serious crimes of international concern, states acted through their courts as ‘agents of the international community’. In the event, the ICJ rained on this millennial parade. Having, avowedly, ‘carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French Court of Cassation’, the Court declared itself ‘unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs . . . where they are suspected of having committed war crimes and crimes against humanity’.85 The Court added: 80 See R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) (1999) 119 ILR 135 (UKHL), 197–8 (Lord Hope), 220 (Lord Saville), 231 (Lord Millett), and 243 (Lord Phillips), the last referring to all crimes subject to treaty-based mandatory universal jurisdiction. The reference to the ‘Torture Convention’ is to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 112. 81 See Gaddafi (2001) 125 ILR 490 (Fr CoC), 509. The reference is to the Convention for the Suppression of Unlawful Acts against the Safety of Civilian Aircraft, 23 September 1971, 974 UNTS 177. 82 See J Hartmann, ‘The Gillon Affair’ (2005) 54 ICLQ 745. 83 See R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 1) (1998) 119 ILR 50 (UKHL), which was annulled on grounds unrelated to the merits, and Pinochet (No 3) (n 80). The proceedings, although for extradition, focused on whether the immunity ratione materiae from which serving and former state officials otherwise benefit under customary international law in respect of acts performed in their official capacity served to shield them from foreign prosecution for an international crime. As it transpired, Pinochet (No 3) turned on the far narrower point of the availability of immunity ratione materiae as a bar to prosecution specifically for the crime of torture within the meaning of and pursuant to the Torture Convention. 84 See Wijngaarde et al v Bouterse (2000) 3 YIHL 677 (District Court of Amsterdam, 20 November 2000), 687–88, para 4.2. 85 Arrest Warrant (n 3) para 58.


122

The Development of International Law by the ICJ

[A]lthough various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition [and] requir[e] them to extend their criminal jurisdiction, [this] in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs. These remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions.86

At the same time, the Court emphasized that this did not mean that incumbent ministers for foreign affairs could never be prosecuted, since ‘such persons enjoy no criminal immunity under international law in their own countries’, the state they represented might decide to waive their immunity, or they might be brought before an international criminal court or tribunal whose statute abrogated otherwise applicable immunities.87 The ICJ’s outright rejection in Arrest Warrant of an exception to immunity ratione personae from foreign criminal jurisdiction in relation to war crimes and crimes against humanity, even where, as in relation to the grave breaches of the Geneva Conventions at issue in the case, states parties to a treaty are obliged both to extend extraterritorial jurisdiction over a specified offence and to submit to their authorities for the purpose of prosecution or to extradite persons suspected of its commission, has been seminal. In the wake of the Court’s pronouncement, which, against a normative background this time of the availability of immunity in the absence of a positive exception, cannot be gainsaid, national courts—sometimes expressly relying on Arrest Warrant, sometimes referring unspecifically to customary international law—have uniformly barred criminal proceedings against a variety of beneficiaries and purported beneficiaries of immunity ratione personae in respect of a variety of international crimes. Heads of state, a head of government, ministers for defence, and a minister for international trade and development have been held immune in respect of allegations of genocide, crimes against humanity, grave breaches of the Geneva Conventions, torture under the Torture Convention, and aircraft sabotage under the Convention for the Suppression of Unlawful Acts against the Safety of Civilian Aircraft.88 In addition, three magistrates’ courts in the UK have upheld in the face of allegations of, variously, grave breaches and 86

87 Arrest Warrant (n 3) para 61. Arrest Warrant (n 3) para 59. See the courts of Belgium (Re Sharon and Yaron (n 57) 123, involving a head of government and allegations of genocide, crimes against humanity, and grave breaches of the Fourth Geneva Convention; and complaints, alleging a range of international crimes, against Cuban President Fidel Castro, Iraqi President Saddam Hussein, Ivorian President Laurent Gbagbo, Mauritanian President Maaouya Ould Sid’Ahmed Taya, Rwandan President Paul Kagame, President of the Central African Republic Ange-Félix Patassé, President of the Republic of Congo Denis Sassou Nguesso, and President of the Palestinian Authority Yasser Arafat); France (complaint against President Mugabe of Zimbabwe in 2003 alleging torture); the Netherlands (The Hague City Party and others v Netherlands ILDC 849 (NL 2005), involving a head of state and allegations of aggression and grave breaches of the Geneva Conventions; and a complaint against President Yudhoyono of Indonesia in 2010 alleging various international crimes); Spain (Castro Audiencia Nacional (Plenary) 13 December 2007 (Spain), involving a head of state and allegations of genocide; and Rwanda Audiencia Nacional (Central Examining Magistrate No 4) 6 February 2008 (Spain), involving a head of state and alleged aircraft sabotage); and the UK (Tatchell v Mugabe (2004) 136 ILR 572 (Eng MagCt), involving a head of state and alleged torture; Re Mofaz (n 65), involving a minister for defence and alleged grave breaches of the 88


Jurisdictional Immunities

123

torture the immunity ratione personae from the criminal jurisdiction of the receiving state from which a representative of the sending state in a special mission benefits under customary international law.89 For its part, in its study on the immunity of state officials from foreign criminal jurisdiction, the UN Secretariat referred to the view ‘prominently held by the International Court of Justice in the Arrest Warrant case’ as ‘the majority view’.90 Similarly, the ILC’s first special rapporteur spoke unhesitatingly of ‘the prevailing view . . . upheld by the International Court of Justice in the Arrest Warrant and Certain Matters of Mutual Assistance in Criminal Matters cases’,91 and, while not every member of the Commission has proved happy with the first special rapporteur’s ‘strict lex lata perspective’,92 few have denied the lex lata outright.93 Finally, in their reactions to date to the ILC’s work, only a handful of governments have demurred from the Court’s position.94 To the extent that the ICJ was again preaching largely to the converted, and especially insofar as what it did in abstract normative terms was merely to affirm the continuing integrity of the (supposedly) existing rule in favour of immunity, rather than to posit its displacement in part, it would be inaccurate to view the Court’s formal legal role in this regard as more than declaratory. In ‘real world’ terms, however, through the certainty it has imposed on the law and the institutional respectability it has cast over what critics condemn as sordid raison d’Etat, the Court has been decisive in shoring up and buttressing the defences of immunity ratione personae. 3.1.1.3 The content of immunity ratione personae and inviolability In Arrest Warrant, the ICJ asserted that ‘immunity and . . . inviolability protect the individual concerned against any act of authority of another State which would

Fourth Geneva Convention; Re Barak (n 65), ditto; and Re Bo Xilai (n 68) 714, involving a minister for overseas trade and development and alleged torture). 89 See Re Bo Xilai (n 68) 714–15, re allegations of torture; Re Barak (n 65), re allegations of grave breaches; Re Gorbachev (n 23), re allegations of torture. 90 Immunity of State Officials. Memorandum by the Secretariat (n 20) 58, para 92. 91 Kolodkin, Second Report (n 62) 30, para 55. See also Kolodkin, Third Report (n 21) 27, para 45, in specific relation to the Court’s rejection of arguments based on treaties mandating universal jurisdiction and aut dedere aut judicare. 92 ILC, Report of the Sixty-Third Session (n 60) 221, para 118. See also, generally, ILC, Report of the Sixty-Third Session (n 60) 221–4, paras 117–31 and 233, para 178. 93 See eg ILC, Report of the Sixty-Fourth Session (n 60) 100, para 117 (‘The occasional mention that there may be exceptions to immunity from foreign criminal jurisdiction for persons enjoying immunity ratione personae was questioned by some members as having no basis in customary international law.’) 94 Indeed, see ILC, Report of the Sixtieth Session (n 24) 21, para 109 (‘It was . . . suggested that the Commission should determine the scope of immunity and possible exceptions to it on the basis of the jurisprudence of the International Court of Justice.’) But cf ILC, Report of the Sixtieth Session (n 24) 21, para 107 (‘Some delegations affirmed that there was an exception to immunity in case of serious international crimes.’).


124

The Development of International Law by the ICJ

hinder him or her in the performance of his or her duties’.95 This potentially very far-reaching statement was reiterated and applied to the head of state in Certain Questions of Mutual Assistance,96 where the Court continued that ‘the determining factor in assessing whether or not there has been an attack on the immunity’—by which was meant both the immunity from jurisdiction and the inviolability97—‘of the Head of State lies in the subjection of the latter to a constraining act of authority’.98 Applying this later dictum, the Court ruled in the second case that a foreign criminal court’s issue, in relation to a state official, of a summons to appear as witness did not violate the immunity from jurisdiction owed in respect of that official when the summons represented not a measure of constraint but merely an invitation to testify that the official could freely accept or decline.99 This was a fortiori the case as regards a summons that expressly sought the official’s consent.100 The ICJ’s statements and rulings have formed the backbone of discussion of the content of immunity from foreign criminal jurisdiction and inviolability from foreign measures of constraint in the UN Secretariat’s preliminary study on the immunity of state officials from foreign criminal jurisdiction,101 in the reports of the ILC’s special rapporteurs on the topic,102 and in the Sixth Committee.103 At the same time, both the generality of the Court’s formulations and the specificities of the cases it has been called on to adjudicate have meant that, although its statements are treated as central to the debate, their ‘full effect . . . on national laws providing for the prosecution of foreign State officials remains unclear’.104 In particular, differing views have been expressed in the context of the ILC’s work as to whether the Court’s reliance in Certain Questions of Mutual Assistance on the notion of ‘a constraining act of authority’ would mean that the mere opening of a criminal investigation into the acts of a foreign state official would violate the immunity from jurisdiction and/or inviolability owed in respect of that individual.105 Moreover, although the Court has indicated, albeit in very general terms, what is prohibited by immunity from criminal jurisdiction and inviolability from measures of personal constraint when taken together, its reluctance in Arrest Warrant to

95

Arrest Warrant (n 3) para 54. See Certain Questions of Mutual Assistance (n 4) para 170. 97 See the immediately preceding sentence in Certain Questions of Mutual Assistance (n 4) para 170, where the Court, quoting from Arrest Warrant (n 3) para 54, refers more comprehensively to the ‘ “full immunity from criminal jurisdiction and inviolability” which protects [the head of State] “against any act of authority of another State which would hinder him or her in the performance of his or her duties” ’. 98 Certain Questions of Mutual Assistance (n 4) para 170. 99 See Certain Questions of Mutual Assistance (n 4) para 171. 100 See Certain Questions of Mutual Assistance (n 4) para 179. 101 See Immunity of State Officials. Memorandum by the Secretariat (n 20) 151–3, paras 235–6 and 155–61, paras 240–5. 102 See Kolodkin, Second Report (n 62) 22–7, paras 40–51. 103 See eg UN Doc A/C.6/66/SR.26 (n 63) 5, para 17 (Switzerland). 104 Immunity of State Officials. Memorandum by the Secretariat (n 20) 158–61, paras 242–5. 105 Compare, for example, Immunity of State Officials. Memorandum by the Secretariat (n 20) 158–61, paras 242–5 with Kolodkin, Second Report (n 62) 23–5, paras 41–3 and UN Doc A/C.6/66/ SR.26 (n 63) 5, para 17 (Switzerland). 96


Jurisdictional Immunities

125

specify what was implicated by immunity from jurisdiction and inviolability respectively has sowed the seeds of uncertainty. When it came in that case to whether the mere issue and international circulation of a warrant for the arrest of a state official—as distinct from, on the one hand, the official’s prosecution and trial and, on the other, his or her actual arrest—was an issue going to immunity from jurisdiction or to inviolability or to both, the Court hedged it bets.106 It concluded that the issue of the arrest warrant by the Belgian prosecuting authorities ‘failed to respect the immunity of [the] Minister and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him under international law’;107 that the circulation of the warrant by Belgium ‘failed to respect the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him under international law’;108 and that ‘the issue and circulation of the arrest warrant of 11 April 2000 by the Belgian authorities failed to respect the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by [him] under international law’.109 The Court similarly went on to find in the dispositif that ‘the issue . . . of the arrest warrant of 11 April 2000, and its international circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the Congo, in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law’.110 Insofar as a serving state official may benefit under international law from both immunity ratione personae and, as appears invariably to accompany it, inviolability, the question of the line between the two concepts is academic. Insofar, however, as a serving or former state official may benefit from only immunity ratione materiae, and to the extent that it remains uncertain whether immunity ratione materiae is accompanied in its application to individuals by their personal inviolability, the problem is of practical significance. The UN Secretariat, highlighting the dissenting opinion of Judge ad hoc Van den Wyngaert in the case,111 noted the imprecision

106 In Certain Questions of Mutual Assistance, on the other hand, the Court was tolerably clear in treating a summons to appear as witness as going to immunity from jurisdiction. See Certain Questions of Mutual Assistance (n 4) paras 171 and 179. This seems correct. For example, Article 31, paragraph 2 VCDR, which provides that ‘[a] diplomatic agent is not obliged to give evidence as a witness’, appears in Art 31 alongside provisions dealing with the immunity of a diplomatic agent from the criminal and civil jurisdiction of the receiving state (para 1) and from measures of execution in that state (para 3), as well as a provision specifying that the immunity of a diplomatic agent from the jurisdiction of the receiving state ‘does not exempt him from [that] jurisdiction’ (para 4). Conversely, no prohibition on compelling a diplomat to give evidence as a witness is found in Article 29 VCDR, which states in its first sentence that ‘[t]he person of a diplomatic agent shall be inviolable’ and in its second that a diplomatic agent ‘shall not be liable to any form of arrest or detention’. 107 Arrest Warrant (n 3) para 70. 108 Arrest Warrant (n 3) para 71. 109 Arrest Warrant (n 3) para 75. 110 Arrest Warrant (n 3) para 78(2). 111 See Arrest Warrant (n 3), Dissenting Opinion of Judge Van den Wyngaert, 179, para 75.


126

The Development of International Law by the ICJ

attendant upon the Court’s omnibus references in Arrest Warrant to ‘immunity from jurisdiction and inviolability’,112 although the ILC’s first special rapporteur was less attuned to this nuance.113

3.1.2 Immunity ratione materiae The immunity ratione materiae of serving and former state officials from the criminal jurisdiction of the courts of another state has not yet fallen for determination by the ICJ. But this has not prevented the Court from pronouncing on the question in passing. The most significant of these dicta, an interventionist statement in Arrest Warrant with obvious implications for any alleged exception to immunity ratione materiae in respect of international crimes, has to some extent had its desired effect on state practice, even if it has failed to sweep all before it. The most recent of the Court’s statements, in Jurisdictional Immunities, will most likely have an even greater impact. 3.1.2.1 The nature of immunity ratione materiae from foreign criminal jurisdiction At the level of abstract principle, the Court implied in both Certain Questions of Mutual Assistance114 and Jurisdictional Immunities115 that the immunity ratione materiae from foreign criminal jurisdiction from which serving and former state officials benefit under customary international law is, in conceptual terms, a manifestation of state immunity—that is, a function of the immunity from the jurisdiction of the courts of another state of the official’s state itself (of which the official, when acting in that capacity, comprises a part) and, as such, based on the corollary of the sovereign equality of states summed up in the maxim par in parem non habet imperium. This characterization, while in line with the orthodox understanding of state officials’ immunity ratione materiae from foreign criminal jurisdiction, is not insignificant, rendering as it does at least formally untenable the suggestion that so-called ‘functional immunity’ from foreign criminal jurisdiction is a sui generis species of immunity.116 It was adopted by the ILC’s first special rapporteur on the immunity of state officials from foreign criminal jurisdiction,117 and has not been disputed by states.

112

See Immunity of State Officials. Memorandum by the Secretariat (n 20) 151–2, para 235. See Kolodkin, Second Report (n 62) 22–3, para 40. 114 See Certain Questions of Mutual Assistance (n 4) paras 188, 191, and 193. 115 Jurisdictional Immunities (n 5) para 91. 116 See eg A Cassese, ‘When May Senior State Officials be Tried for International Crimes? Some Comments on the Congo v Belgium Case’ (2002) 13 EJIL 853, 862; R Van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (Oxford: OUP, 2008), ch 3; D Akande and S Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2011) 21 EJIL 815, 826–7. 117 See Kolodkin, Second Report (n 62) 12–13, para 23. 113


Jurisdictional Immunities

127

3.1.2.2 The scope of immunity ratione materiae from foreign criminal jurisdiction Of more practical significance, the Court in Arrest Warrant, in a gratuitous and no doubt carefully conceived dictum, went out of its way to refer to the scope of the immunity ratione materiae enjoyed by former ministers for foreign affairs. Dismissing the hypothetical objection that the absolute immunity ratione personae of serving ministers for foreign affairs amounted to impunity in respect of any crimes they may have committed, the Court, having observed that ‘after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States’,118 continued: Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.119

With the limitation of the lawful scope of prosecution to acts committed ‘in a private capacity’, the Court does two things. First, the Court appears to imply a contrario that, in contrast to the situation in relation to civil proceedings, the immunity ratione materiae—or state immunity— that may serve to bar foreign criminal proceedings against any current or former state official is not circumscribed by the distinction between acts performed in an official capacity which can be characterized as exercises of sovereign authority (acta jure imperii) and acts which, although performed in an official capacity, are the sort of thing a private person could do (acta jure gestionis), insofar as the distinction could have logical purchase in the criminal context in the first place. Rather, such immunity extends to all acts performed by state officials in their official (or ‘public’) capacity, meaning in their capacity as state officials. The same was similarly implied in Certain Questions of Mutual Assistance when the Court ‘observe[d] that it ha[d] not been “concretely verified” before it that the acts which were the subject of the summonses as témoins assistés issued by France were indeed acts within the scope of [the relevant officials’] duties as organs of State’.120 Secondly, and more crucially, in its dictum in Arrest Warrant the Court appears by implication to reject the argument that immunity ratione materiae is unavailable as a procedural bar to the prosecution of a serving or former state official for an international crime allegedly committed by that official in anything other than a private capacity. This rejection goes hand-in-hand with the Court’s earlier pronouncement in which it stresses that, ‘although various international conventions on the prevention and punishment of certain serious crimes impose on states obligations of prosecution or extradition [and] require[e] them to extend their criminal jurisdiction’, this ‘in no way affects immunities under customary international law, including those of Minister for Foreign Affairs’, which ‘remain

118 120

119 Arrest Warrant (n 3) para 61. Arrest Warrant (n 3) para 61. Certain Questions of Mutual Assistance (n 4) para 141.


128

The Development of International Law by the ICJ

opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions’121—the reference to ‘immunities under customary international law’ being pointedly general, not restricted to the immunity ratione personae of a serving minister for foreign affairs at immediate issue in the case. Both statements are directed squarely at Pinochet (No 3), in which a majority of the House of Lords reasoned that the definition of the crime of torture for the purposes of the Torture Convention combined with the obligations undertaken by the Convention’s states parties both to extend universal jurisdiction over the crime and to submit cases of suspected torture to their competent authorities for the purpose of prosecution meant that immunity ratione materiae could not, as a matter of logic, pose a bar to the prosecution of a former head of state on a charge of torture pursuant to the Convention. Additionally, the Court’s considered reference to the unavailability of residual immunity ratione materiae in respect of acts performed ‘in a private capacity’—rather than to the continuing existence of immunity in respect of acts performed in an official capacity or ‘official acts’, both of which might have been read down to exclude acts under mere colour of officialdom—takes careful aim at the broader ratio of the Lords’ quashed decision in Pinochet (No 1), as made popular by activists and as effectively relied on by the Court of Appeal of Amsterdam in Bouterse when it stated that ‘the commission of very grave criminal offences of this kind’ (in that case torture within the meaning of the Torture Convention, war crimes, and crimes against humanity) ‘cannot be regarded as part of the official duties of a head of state’.122 The Court’s implicit rejection of an exception in respect of either international crimes generally or the crime of torture pursuant to the Torture Convention to the immunity ratione materiae from foreign criminal proceedings of a serving or former state official has proved influential. In 2005, basing his decision expressly on Arrest Warrant (although seeming to conflate immunity ratione personae and immunity ratione materiae), the German federal prosecutor refused to open an investigation into allegations of crimes against humanity committed while in office by the former head of a foreign state, arguing that the ICJ’s Judgment, which the prosecutor said dealt with both present and former ministers for foreign affairs, affirmed ‘a well recognized rule in international law grant[ing] immunity from criminal prosecution by other states to present and former heads of government and heads of state’, even ‘if these officials are prosecuted for international crimes’.123 Similarly, in late 2007, the prosecuting magistrate of the Tribunal de Grande Instance of Paris announced that he would not investigate a complaint filed with him alleging that former US Secretary of Defense Donald Rumsfeld had ordered and authorized torture. He stated: [T]he Ministry of Foreign Affairs has indicated that, applying the rules of customary international law, as affirmed by the International Court of Justice, the immunity from 121

122 Wijngaarde v Bouterse (n 84) 687–8, para 4.2. Arrest Warrant (n 3) para 59. Generalbundesanwalt beim Bundesgerichsthof, correspondence reference 3 ARP 654/03—2, 26 June 2005, para I, translation from Amnesty International, Germany: End Impunity Through Universal Jurisdiction, No Safe Haven Series No 3, EUR 23/003/2008, 72. 123


Jurisdictional Immunities

129

criminal jurisdiction of heads of State and of government and of ministers for foreign affairs continues to subsist, after their office comes to an end, in respect of acts performed in their official capacity and that, as former Secretary of Defense, Mr Rumsfeld should benefit by extension from the same immunity in respect of acts performed in the exercise of his office.124

The senior prosecuting magistrate of the Paris Court of Appeal rejected a challenge to the dismissal of the complaint, emphasizing that the ICJ had indicated in Arrest Warrant that the immunity of high-ranking officers of state was lost on completion of their term of office only in respect of acts performed before or after their term of office and in respect of acts performed while in office that were unrelated to that office.125 But not all relevant actors have taken the ICJ’s dictum in Arrest Warrant to exclude without exception the abrogation of the immunity ratione materiae of a serving or former foreign state official in the face of prosecution for an international crime. In 2008, the Italian Court of Cassation held in Lozano, without even alluding to the ICJ’s dictum in Arrest Warrant, that state immunity poses no bar to prosecution for those international crimes, such as the war crimes alleged in that case, which are said to violate norms of jus cogens.126 In 2009, the Institut de Droit international, in its resolution entitled ‘Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes’, posited in Article III(1) that ‘[n]o immunity from jurisdiction other than personal immunity in accordance with international law applies with regard to international crimes’.127 In 2011, Belgium declared its view in the Sixth Committee ‘that de lege lata, crimes that violated international treaties or international customary law gave rise to exclusion from immunity ratione materiae’,128 while Singapore stated that ‘existing sources of international law certainly provided for exceptions’ as regards ‘the question of which crimes were or should be excluded from immunity ratione materiae’.129 Austria and the Netherlands argued for the same position de lege ferenda.130 Most recently, in July 2012, the Swiss Federal Criminal Court in A v Ministère public de la Confédération, while acknowledging the Court’s words in Arrest Warrant on the immunity of a former minister for foreign affairs, preferred— in addition to taking a rose-tinted view of responses to the work of the ILC’s first 124 Procureur de la République (Tribunal de Grande Instance de Paris, Cour d’Appel de Paris), correspondence reference AS/2007/3350/A4/JCM/FC/ALM, 16 November 2007, author’s translation. 125 See Procureur Général (n 67). 126 See Lozano ILDC 1085 (IT 2008) para 6. The Court of Cassation eventually upheld immunity on other grounds. 127 Institut de Droit international, Naples session (2009), ‘Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes’, <http://www.idi-iil.org/idiE/resolutionsE/2009_naples_01_en.pdf> (accessed 17 May 2013). 128 UN Doc A/C.6/66/SR.26 (n 63) 14, para 67. See also para 14, 69 (Belgium). 129 UN Doc A/C.6/66/SR.28 (n 63) 6, para 30. 130 See A/C.6/66/SR.26 (n 63) 16, para 79 (Austria) (‘persons enjoying functional immunity could not, in principle, invoke immunity for such crimes’) and UN Doc A/C.6/66/SR.28 (n 63) 11, para 59 (Netherlands) (‘immunity ratione materiae should not be granted for serious international crimes’, stating that, as a matter of lex lata, ‘international law in the matter was insufficiently clear’).


130

The Development of International Law by the ICJ

special rapporteur on the immunity of state officials131—to recall, with striking creativity, that, ‘[i]n the same judgment, the ICJ equally underlined that the immunity from jurisdiction that a serving minister for foreign affairs enjoys does not mean that he benefits from impunity in respect of crimes he may have committed, whatever their gravity’.132 The Federal Criminal Court went on to abrogate the immunity ratione materiae of a former minister of defence of a foreign state in respect of allegations of war crimes.133 In implicit response to Lozano and like reasoning in the criminal context, the ICJ in Jurisdictional Immunities—while posting the formal caveat that it was ‘addressing only the immunity of the State itself from the jurisdiction of courts of other States’, since ‘the question whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State [was] not in issue’ in the case134—recalled: In Arrest Warrant, the Court held, albeit without express reference to the concept of jus cogens, that the fact that a Minister for Foreign Affairs was accused of criminal violations of rules which undoubtedly possess the character of jus cogens did not deprive the Democratic Republic of the Congo of the entitlement which it possessed as a matter of customary international law to demand immunity on his behalf.135

More generally, although again speaking directly of the immunity from civil proceedings of the state sued as such, the Court highlighted in Jurisdictional Immunities a perceived fatal flaw in what it characterized as gravity-based normative arguments against the availability of immunity from foreign jurisdiction, namely that such arguments are premised on a consideration of the merits of the case, whereas the barring of consideration of the merits is the essence of immunity.136 It is unlikely that a preponderance of national courts and other relevant actors will fail to recognize as a blanket dismissal of jus cogens-based arguments against immunity from foreign criminal jurisdiction the Court’s characterization in Jurisdictional Immunities of its earlier decision in Arrest Warrant.137 It is true that Arrest 131

See A v Ministère public de la Confédération (n 18) para 5.3.6. A v Ministère public de la Confédération (n 18) para 5.3.3. 133 See A v Ministère public de la Confédération (n 18) paras 5.4.3 and 5.5. 134 The distinction was one of the reasons the Court in Jurisdictional Immunities (n 5) para 87 considered irrelevant the House of Lords’ decision in Pinochet (No 3) (n 80), the other being that the decision turned on the language of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, 1465 UNTS 85. 135 Jurisdictional Immunities (n 5) para 95, reference omitted. 136 Jurisdictional Immunities (n 5) para 82. For the full quotation, see text accompanying n 198. 137 Indeed, the UK House of Lords, in the civil case of Jones v Saudi Arabia (n 19) 726–7, para 24 (Lord Bingham) and, more clearly, 734, paras 48–9 (Lord Hoffmann), had already read Arrest Warrant as a denial of the a priori logic that deemed jurisdictional immunity incompatible with jus cogens. That said, six months after the ICJ’s Judgment in Jurisdictional Immunities, the Swiss Federal Criminal Court in A v Ministère public de la Confédération (n 18), esp paras 5.3.4, 5.3.5, and 5.4.3, referring in passing to the putative jus cogens status of the international criminal prohibitions in question, denied immunity ratione materiae to a former minister for defence of a foreign state accused of war crimes. But the decision of the Ministère public de la Confédération challenged before the Federal Criminal Court predates the ICJ’s Judgment, as do all the pleadings in the challenge bar the réplique (two days after the ICJ’s Judgment) and the duplique (two months later), neither of which could by that point have 132


Jurisdictional Immunities

131

Warrant itself pertained to immunity ratione personae; but it is significant that the Court relied on it in Jurisdictional Immunities to dismiss jus cogens-based arguments against state immunity (with the immediate context of civil proceedings against the State eo nomine representing no more than a formal distinction). Indeed, the ILC’s new special rapporteur on immunity of state officials from foreign criminal jurisdiction indicated in her preliminary report that the Court’s Judgment in Jurisdictional Immunities ‘deserves special consideration because [of] some of its methodological elements’, ‘whose potential implications for the immunity of State officials from foreign criminal jurisdiction the Commission should consider’.138 Members of the Commission agreed.139

3.2 State immunity and civil claims for death or personal injury In Jurisdictional Immunities, the ICJ was asked to rule on an issue every bit as politically and legally controversial as the subject of Arrest Warrant, namely the scope of the immunity to which a state was entitled under customary international law from civil proceedings in a foreign court in respect of intentional acts by that state causing death or personal injury to the claimant’s next-of-kin or to the claimant. Two legal questions were in dispute. The first related to the scope of the so-called ‘territorial tort’ exception to state immunity from foreign civil proceedings. The second, more emotive inquiry was whether there existed an exception to state immunity from foreign civil proceedings where the claimant alleged serious violations of international humanitarian law or international human rights law or of peremptory norms of general international law (jus cogens). The Court answered both questions in orthodox, indeed exemplary fashion, on the basis of a detailed survey and weighing of state practice and opinio juris, backed up on the second point by a consideration of first principles. Its Judgment is almost certain to have a determinative impact on the future course of customary international law.

incorporated the ICJ’s jurisprudence. See A v Ministère public de la Confédération (n 18) paras F to H. Moreover, the Federal Criminal Court’s decision appears ultimately premised on an official statement by the Swiss legislature when adopting Switzerland’s law implementing the Rome Statute of the International Criminal Court that the law was intended ‘to ensure the unwavering repression’ of genocide, crimes against humanity, and war crimes. This led the Federal Criminal Court to reason, para 5.4.3, author’s translation: ‘[I]t would be contradictory and pointless if at the same time, on the one hand, one were to affirm the desire to combat these grave violations of humanity’s fundamental values and, on the other, if one were to concede a broad interpretation of the rules of functional immunity (ratione materiae) to the benefit of former rulers or officials, the concrete result of which would be to prevent, ab initio, any opening of an investigation. . . . Such a situation would be paradoxical, and the criminal-law policy that the legislator wanted to implement would be destined to remain a dead letter in nearly every case. This is not what [the legislator] wanted. It flows from this in the present case that the applicant ought not to benefit from any immunity ratione materiae.’ 138 Escobar Hernández, Preliminary Report (n 62) 11, para 49. 139 See ILC, Report of the Sixty-Fourth Session (n 60) 96, para 100, 97–8, para 106, and 101–2, paras 127–31.


132

The Development of International Law by the ICJ

3.2.1 The ‘territorial tort’ exception 3.2.1.1 Background Article 11 of the European Convention on State Immunity (‘ECSI’),140 the first binding embodiment of the ‘territorial tort’ exception at either the international or national level, provides, in terms capable of applying to harm inflicted in the exercise of sovereign authority (‘jure imperii’): A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.141

Similarly, such national state immunity statutes as exist, all bar one of which include an exception to the same effect,142 premise the resultant exercise of jurisdiction over the foreign state not on the character of the act at issue in the proceedings but solely on some nexus with the territory of the forum state, usually143 in the form of the place of commission of, or of the failure to perform, the relevant act. What is more, the US and Canadian courts have expressly held that the ‘territorial tort’ exception as statutorily embodied is without regard to the distinction between acta jure gestionis and acta jure imperii.144 All of this led Greece’s Court of Cassation (Areios Pagos), in a case involving the conduct of foreign armed forces in international armed conflict, to hold in 2002, ‘by way of exception from the principle of immunity’, that national courts may exercise international jurisdiction over claims for damages in relation to torts committed against persons and property on the territory of the forum State by organs of a foreign State present on that territory at the time of the commission of these torts even if they resulted from acts of sovereign power (acta jure imperii).145

140

European Convention on State Immunity, 16 May 1972, 1495 UNTS 182. See also, along analogous lines, draft article III(F) of the International Law Association’s Revised Draft Articles for a Convention on State Immunity, International Law Association, Report of the SixtiethSixth Conference, held at Buenos Aires, Argentina, 14 to 20 August 1994 (1994), 21. 142 See SIA (UK), s. 5, enacted to give effect to ECSI, Art 11; FStIA (SA), s. 6; FStIA (Aus), s. 13; SIA (Sing), s. 7; Act on the Immunity of Foreign States from the Jurisdiction of the Argentine Courts 1995 (Argentina), art 2(e); FSIL (Isr), s. 5; Act on the Civil Jurisdiction of Japan with respect to a Foreign State, etc 2009 (‘ACJJFS ( Jpn)’), art 10. 143 But cf FSIA (US), s. 1605(a)(5) and SIA (Can), s. 6, both requiring only that the harm the subject of the claim occur within the territory. The US courts, however, have consistently construed section 1605(a)(5) of the FSIA (US) narrowly to require that both the harm and the causal act or omission occur in US territory. In Canada, the Court of Appeal of Quebec took the opposite view in relation to section 6 of the SIA (Can) in Hashemi v Iran (2012) QCCA 1449 (Quebec C of A), para 66. 144 See Letelier v Chile (1980) 63 ILR 378, 386–7, as regards FSIA (US), s. 1605(a)(5); Schreiber v Canada (Attorney General) 2002 SCC 62, paras 32 and 35–6, in relation to SIA (Can), s. 6. 145 Prefecture of Voiotia v Germany (Distomo Massacre Case) (2002) 129 ILR 513, 519 (2002). The enforcement of the Judgment by the Italian courts was one of the triggers for Germany’s application to the ICJ in Jurisdictional Immunities (n 5). 141


Jurisdictional Immunities

133

But the Greek Special Supreme Court (Anotato Eidiko Dikastirio) subsequently rejected this view of the ‘territorial tort’ exception to state immunity, ruling that in the present state of development of international law, there continues to exist a generally accepted rule of international law according to which proceedings cannot be brought against a foreign State before the courts of another State for compensation for an alleged tort committed in the forum State in which the armed forces of the defendant State are alleged to have participated either in a time of war or in a time of peace.146

Similarly, the Supreme Court of Germany (Bundesgerichtshof ) held the following year that the balance of considerations continues to militate against the assumption that a rule such as Article 11 of the European Convention of 16 May 1972 is an expression of what has in the meantime become customary international law ( . . . ). In any event, it does not cover military action in wartime of the type at issue here [ . . . ]147

Moreover, several of the aforementioned state immunity statutes contain a provision to the effect that the statute does not apply to proceedings relating to anything done by or in relation to the armed forces of a foreign state while present in the territory of the forum state and/or does not affect the application of legislation pertaining to visiting forces.148 The former proposition echoes Article 31 of the ECSI, which, in a savings clause of significance to the effective scope of application of Article 11, states: Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting State in respect of anything done or omitted to be done by, or in relation to, its armed forces when on the territory of another Contracting State.

Pursuant to such an exclusion under the common law, which was held to this extent to incorporate customary international law, the UK courts held in 1995 and 2000 that a state remained immune from civil proceedings in respect of acts of jure imperii performed by its armed forces in the forum state149—rulings with which respective rulings of the Italian Court of Cassation in 2000150 and the Constitutional Court of Slovenia in 2001151 squared. Similarly, speaking in 1995, the Supreme Court of Ireland took the view that ‘[t]he terms of Article 31 [of the ECSI] recognize that as a matter of international law immunities and privileges in respect of anything done or omitted to be done by, or in relation to armed forces when on the territory of another Contracting State, exist’.152 More generally, the Irish court declared itself

146

Margellos v Germany (2002) 129 ILR 525, 533. Greek Citizens v Germany (Distomo Massacre Case) (2003) 129 ILR 556, 561. 148 See SIA (UK), s. 16(2), enacted to give effect to ESCI, Art 31; SIA (Can), s. 16; FStIA (Aus), s. 6; SIA (Sing), s. 19(2)(a); FSIL (Isr), s. 22. 149 See Littrell v US (No 2) (1995) 100 ILR 438, 460 and 463–4; Holland v Lampen-Wolfe (2000) 119 ILR 367. 150 See FILT-CGIL Trento v US (2000) 128 ILR 644. 151 See AA Up-13/99, 8 March 2001, paras 13–14. 152 McElhinney v Williams and Her Majesty’s Secretary of State for Northern Ireland (1995) 104 ILR 691, 701. 147


134

The Development of International Law by the ICJ

not satisfied that it is a principle of public international law that the immunity granted to sovereign States should be restricted by making them liable in respect of tortious acts committed on their behalf by their servant or agent causing personal injuries to the person affected by such act or omission when such act or omission is committed jure imperii [ . . . ]153

When the case went to Strasbourg, more significantly, a Grand Chamber of the European Court of Human Rights—noting that, as it was, the recognition of a ‘territorial tort’ exception to a foreign state’s immunity from jurisdiction was ‘by no means universal’—declared that ‘the present state of the development of international law’ did not enable it to conclude that a state which accorded another state immunity from jurisdiction in proceedings in respect of personal injury caused by an act or omission jure imperii in the territory of the forum state fell ‘outside any currently accepted international standards’.154 For its part, the United Nations Convention on Jurisdictional Immunities of States and Their Property (‘UN Convention on State Immunity’/‘UNCSI’) contains in Article 12 a ‘territorial tort’ exception to a state’s immunity from foreign jurisdiction, and the ILC made it clear in its commentary on the draft forerunner to this provision that its application was without regard to the distinction between acta jure gestionis and acta jure imperii.155 At the same time, it remains uncertain whether the UNCSI as a whole applies in respect of military activities.156 In short, the issue was a live one when it came before the ICJ in Jurisdictional Immunities. 3.2.1.2 The Court’s position In the event, the Court in Jurisdictional Immunities restricted its ruling on the ‘territorial tort’ exception to proceedings in respect of acts performed in the territory of the forum state by foreign armed forces and other state organs in the conduct of armed conflict. It did not decide the more basic question ‘whether there is in customary international law a “[territorial] tort exception” to State immunity applicable to acta jure imperii in general’.157 The Court held that ‘customary international law continues to require that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict’.158 It reasoned: [ . . . ] State practice in the form of judicial decisions supports the proposition that State immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning death, personal injury or damage to property committed by the armed forces and other organs of a State in the conduct of armed conflict, even if the relevant acts take place on the

153

McElhinney v Williams (n 152) 703. McElhinney v Ireland (n 28) para 38. 155 See para 8 of the commentary to draft art 12 of the ILC’s draft articles on jurisdictional immunities of States and their property, ILC Ybk 1991 II/(2), 13, 45. 156 See 3.2.1.3. 157 Jurisdictional Immunities (n 5) para 65. 158 Jurisdictional Immunities (n 5) para 78. 154


Jurisdictional Immunities

135

territory of the forum State. That practice is accompanied by opinio juris, as demonstrated by the positions taken by States and the jurisprudence of a number of national courts which have made clear that they considered that customary international law required immunity. The almost complete absence of contrary jurisprudence is also significant, as is the absence of any statements by States in connection with the work of the International Law Commission regarding State immunity and the adoption of the United Nations Convention or, so far as the Court has been able to discover, in any other context asserting that customary international law does not require immunity in such cases.159

The Court noted that the state immunity legislation and case law of a range of states did not distinguish in the application of the ‘territorial tort’ exception between acta jure gestionis and acta jure imperii, and it highlighted both Article 12 of the UNCSI, which, as a matter of ‘deliberate choice’, ‘was not intended to be restricted to acta jure gestionis’,160 and Article 11 of the ECSI. But it observed that the application of the last to the acts of foreign armed forces in the conduct of armed conflict was excluded by Article 31 of the ECSI, as had been affirmed by several national courts.161 As for Article 12 of the UNCSI, the Court pointed out that its draft precursor had been said by the ILC not to apply to ‘situations involving armed conflicts’,162 while the Chairman of the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property had told the Sixth Committee that ‘[t]he general understanding had always prevailed’ that ‘military activities’ were not covered by the Convention,163 a statement not questioned by states and subsequently expressly endorsed by two states parties.164 The consequence, in the eyes of the Court, was that Article 12 of the UNCSI ‘cannot be taken as affording any support to the contention that customary international law denies State immunity in tort proceedings relating to acts occasioning death, personal injury or damage to property committed in the territory of the forum State by the armed forces and associated organs of another State in the context of an armed conflict’.165 Nor, according to the ICJ, did the legislative or judicial practice of states point to a contrary conclusion. Indeed, the few national decisions directly on point suggested to the Court that a state was entitled to immunity from proceedings in the courts of another state in respect of acts performed by its armed forces or other organs in the forum state’s territory in the course of armed conflict.166

159

160 Jurisdictional Immunities (n 5) para 64. Jurisdictional Immunities (n 5) para 77. See Jurisdictional Immunities (n 5) paras 67–8. 162 Jurisdictional Immunities (n 5) para 69, citing para 10 of the commentary to draft art 12 of the ILC’s draft articles on jurisdictional immunities of States and their property (n 155). 163 Jurisdictional Immunities (n 5) para 69, citing GAOR, Fifty-ninth Session, Sixth Committee, 13th meeting, 25 October 2004, UN Doc A/C.6/59/SR.13 and Corr. 1, para 36. 164 See Jurisdictional Immunities (n 5) para 69, citing UNCSI depositary notifications C.N.280. 2006.TREATIES–2 (Norway: Ratification), 6 April 2006 and C.N.912.2009.TREATIES–1 (Sweden: Ratification), 24 December 2009. 165 Jurisdictional Immunities (n 5) para 69. See also para 77. The Court did not go so far as to conclude that the UNCSI itself does not apply to military activities. See further 3.2.1.3. 166 See Jurisdictional Immunities (n 5) para 69, paras 70–6, citing a wide range of case law. 161


136

The Development of International Law by the ICJ

In addition, although not called on to decide the point, the Court ventured the view, not confined to the context of armed conflict, that various national judicial decisions, along with the Judgment of the Grand Chamber of the ECtHR in McElhinney, ‘suggest that a State is entitled to immunity in respect of acta jure imperii committed by its armed forces on the territory of another State’.167 3.2.1.3 Analysis The ICJ’s decision on the narrow point before it is not unpersuasive as an evidentiary matter and accords with principle, and for these and reasons of interstate policy it is comparatively uncontroversial. The same goes for the Court’s dictum as to immunity from jurisdiction in respect of acta jure imperii committed by a state’s armed forces in the territory of another state in peacetime. While the Court says nothing that the preponderance of national courts and the European Court of Human Rights has not already said in either regard, its imprimatur should nonetheless prove influential. Indeed, while its ruling on the wartime point is carefully formulated as no more than an assessment of the present state of customary international law, it is highly likely to be received by states as the final word on the matter. Less convincing is what may be taken by states to be the Court’s oblique support for the contentious proposition that the UNCSI does not apply to military activities,168 although it is worth stressing in this regard that the Court, choosing its words carefully, did not as such decide the point. No provision of the UNCSI excludes its application to military activities. Nor is there anything in the drafting records to suggest so wide an exclusion. The sole documented evidence of a ‘general understanding’ to the effect is, as cited by the Court, the unsupported statement of the Chairman of the Ad Hoc Committee and endorsement of it by Norway and Sweden—only two states parties, it might have been noted, out of the thirteen to date. Moreover, the Court did not mention that the single state party to have enacted legislation so far to implement the Convention, namely Japan, has excluded neither military activities nor situations involving armed conflicts from the scope of application of either its statute as a whole or of the ‘territorial tort’ exception included in it.169 Although the impact of the Court’s words remains to be seen, the concern must be that they are taken to be authoritative and conclusive of the position under the UNCSI, which may in turn prejudice a live debate in which the competing bodies of evidence are at present evenly balanced and to which the resolution ought ultimately to depend on the future practice of states parties.

167

Jurisdictional Immunities (n 5) para 72. See, generally, R O’Keefe, ‘The “General Understandings” ’ in R O’Keefe and CJ Tams (eds), The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (Oxford: OUP, 2013) 19; A Dickinson, ‘Status of Forces under the UN Convention on State Immunity’ (2006) 55 ICLQ 427. 169 See ACJJFS ( Jpn). 168


Jurisdictional Immunities

137

3.2.2 The alleged exception in respect of violations of international humanitarian or human rights law or jus cogens 3.2.2.1 Background Ever since the rise in the 1980s of cases in the US under the Alien Tort Claims Act, arguments had been advanced that customary international law did not recognize a state’s immunity from foreign civil jurisdiction where the claim alleged a violation of customary international human rights law, customary international humanitarian law, or some other customary rule on the humane treatment of individuals or, more specifically, where the claim alleged a violation of a peremptory norm ( jus cogens). But despite their popularity with partisans inside and outside the academy, these arguments had enjoyed little success in national or international judicial fora. At the national level, this was sometimes for the simple reason that the governing statute did not embody any relevant exception to state immunity.170 More commonly, however, the putative exception or exceptions to a state’s immunity from foreign jurisdiction were rejected on their merits, by reference to positive customary international law or principle or both.171 Most influential in this regard were the respective decisions of the Grand Chamber of the European Court of Human Rights in Al-Adsani v United Kingdom172 and of the First Section of that court in Kalogeropoulou v Greece and Germany.173 In Al-Adsani, ‘[n]otwithstanding the special character of the prohibition of torture in international law’ as a norm of jus cogens, the Court [was] unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a

170 See Argentina v Amerada Hess Shipping Corp. 488 US 428 (1989), 433–38, 443; Siderman de Blake v Argentina 965 F.2d 699 (9th Cir. 1992), 714–19; Princz v Germany 26 F.3d 1166 (DC Cir. 1992), 1171–6; Smith v Libya 101 F.3d 239 (2d Cir. 1996); Al-Adsani v Kuwait (1996) 107 ILR 536, 542–4 (Stuart-Smith LJ), 547–50 (Ward LJ); Bouzari v Iran (2004) 128 ILR 586, 599, paras 57–9, 601, para 67, 605, para 90, 608, para 104; Arar v Syria (2005) 127 CRR 2d 252, paras 21–2, 25–6, 28, 30–1; Zhang v Jiang (2010) 148 ILR 555, 589, para 153 (Spigelman CJ), 589–91, paras 157–64, 593, para 172 (Allsop P). 171 See Margellos v Germany (n 146) 529–33, paras 12–15; AA (n 151) paras 14, 18, 20–1; Bouzari v Iran (2002) 124 ILR 427, 443–6, paras 63–73 and Bouzari v Iran (n 170) 604–6, paras 84–95; Greek Citizens v Germany (n 147) 556–62 and Greek Citizens v Germany (2006) 135 ILR 186, 191–2; Cass. No. 02-45961 (Bucheron v Federal Republic of Germany), 16 December 2003, Bull. civ., 2003, I, No. 258; Cass. No. 03-41851 (Gimenez-Esposito v Federal Republic of Germany), 2 June 2004, Bull. civ., 2004, I, No. 158; Arar v Syria (n 170), paras 23, 31; Jones v Saudi Arabia, 129 ILR 629, 722–3, para 18, 726–7, para 24 (Lord Bingham), 731–2, paras 40–5, 736, para 55 (Lord Hoffmann) (2006); Cass. No. 47-504 (Grosz v Federal Republic of Germany), 3 January 2006; Fang v Jiang (2006) 141 ILR 702, 710, paras 33–5, 714, para 51, 716–19, paras 60, 62–72; Zhang v Jiang (2008) 141 ILR 542, 551–3, paras 35–40; Zhang v Jiang (n 170), 582, para 121 (Spigelman CJ); Natoniewski v Germany (2010) 30 Polish YIL 299, 302–3 (2010); Cass. No. 09-14743 (La Réunion Aérienne v Libyan People’s Socialist Jamahiriya), 9 March 2011, Bull. civ., 2011, I, No. 247. 172 See n 28. 173 See n 28.


138

The Development of International Law by the ICJ

State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.174

In short, there was ‘[not] yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum State’.175 In Kalogeropoulou, the Court held similarly that, despite the applicant’s claim that the prohibition on crimes against humanity enjoyed the character of jus cogens, there was ‘[not] yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages brought against them in another State for crimes against humanity’.176 For its part, the UNCSI contains no exception to state immunity in respect of claims alleging violations of international rules on the humane treatment of individuals or more specifically of jus cogens. This absence reflects a decision taken in the course of working up the ILC’s draft articles on jurisdictional immunities of states and their property, as finally adopted on second reading in 1991, into the UNCSI, as adopted by the United Nations General Assembly in 2004. When the open-ended Working Group of the Sixth Committee of the General Assembly reconvened in 1999 to examine outstanding issues relating to the draft articles, it considered whether to take up a matter raised in the appendix to the report to the ILC earlier that year of the Commission’s own Working Group on Jurisdictional Immunities of States and Their Property,177 ‘namely the question of the existence or nonexistence of immunity in the case of violation by a State of jus cogens norms of international law’.178 ‘It was generally agreed’, however, by the delegates to the Sixth Committee’s Working Group, ‘that this issue, although of current interest, did not really fit into the [ . . . ] draft articles’.179 Moreover, the issue ‘did not seem to be ripe enough for the Working Group to engage in a codification exercise over it’.180 In this light, the Chairman of the Sixth Committee’s Working Group, while considering the decision one for the Sixth Committee itself, concluded that ‘it [did] not seem advisable’ to include the matter among those to be dealt with in future consideration of the prospective convention.181 No objection to this manner of proceeding was subsequently raised in the Sixth Committee. Moreover, the Japanese delegate who eventually introduced the draft of what became General Assembly resolution 54/101

174

Al-Adsani v United Kingdom (n 28) 42, para 61. Al-Adsani v United Kingdom (n 28) 43, para 66. Kalogeropoulou v Greece and Germany (n 28) 547. 177 See Report of the Working Group on Jurisdictional Immunities of States and Their Property, in Report of the International Law Commission on the Work of its Fifty-first Session, ILC Ybk 1999 II/2, 1, Annex. 178 Convention on Jurisdictional Immunities of States and Their Property: Report of the Chairman of the Working Group, UN Doc A/C.6/54/L.12 (12 November 1999) para 46. 179 Report of the Chairman of the Working Group (n 178) para 47. 180 Report of the Chairman of the Working Group (n 178) para 47. 181 Report of the Chairman of the Working Group (n 178) para 67. 175 176


Jurisdictional Immunities

139

of 9 December 1999 (‘Convention on jurisdictional immunities of States and their property’) explicitly supported the exclusion of future discussion of the matter.182 At the same time, the preamble to the UNCSI affirms ‘that the rules of customary international law continue to govern matters not regulated by the provisions of the [ . . . ] Convention’. In this light, when ratifying the Convention in 2009, Sweden, reproducing almost verbatim Norway’s declaration of 2006,183 declared its understanding that ‘the Convention is without prejudice to any future international legal development concerning the protection of human rights’.184 In a similar vein, on its accession to the Convention in 2010, Switzerland declared its understanding that the Convention ‘is without prejudice to developments in international law’ regarding ‘pecuniary compensation for serious human rights violations which are alleged to be attributable to a State and are committed outside the State of the forum’.185 As for the European Court of Human Rights, in neither Al-Adsani nor Kalogeropoulou did it preclude the future development of customary international law in favour of the unavailability of state immunity in civil claims relating to torture and crimes against humanity. Nor did it venture an opinion on the availability of state immunity as a bar to actions for damages in respect of violations of other international norms on the humane treatment of individuals. State practice, moreover, was not all in the same direction. A relevant legislative exception to statutory state immunity had existed in the US since 1996. Formerly under 28 USC }1605(a)(7), originally introduced by }221 of the Antiterrorism and Effective Death Penalty Act of 1996,186 and now under 28 USC }1605A, inserted by way of }1083(b)(1) of the National Defense Authorization Act for Fiscal Year 2008,187 the immunity from proceedings to which a foreign state designated as a state sponsor of terrorism would otherwise be entitled under the Foreign Sovereign Immunities Act (FSIA) is abrogated in respect of actions for damages for personal injury or death caused to a US national or, under 28 USC }1605A, to a member of the US armed forces or US government employee or contractor acting within the scope of his or her employment by that foreign state’s act of torture, extra-judicial killing, aircraft sabotage, or hostage-taking, or by its provision of material support or resources for any such act. A bill to equivalent effect was introduced in the Canadian Parliament in September 2011.188 For its part, and of more immediate relevance, the Greek Court of Cassation in Prefecture of Voiotia, upholding the denial to Germany of state immunity from civil proceedings pertaining to war crimes and crimes against humanity committed during the Second World War, was

182

UN Doc A/C.6/54/SR.36 (24 April 2000) para 9. See UNCSI depositary notification C.N.280.2006.TREATIES–2 (Norway: Ratification), 6 April 2006. 184 UNCSI depositary notification C.N.912.2009.TREATIES–1 (Sweden: Ratification), 24 December 2009. 185 UNCSI depositary notification C.N.223.2010.TREATIES–2 (Switzerland: Accession), 20 April 2010. 186 Pub. L. No. 104-132, 110 Stat. 1214 (1996). 187 Pub. L. 110-181, 122 Stat. 341 (2008). 188 See n 226. 183


140

The Development of International Law by the ICJ

persuaded by reasoning based on jus cogens,189 even if the Greek Special Supreme Court in Margellos190 later rejected this line of argument.191 Most pertinently, in Ferrini v Germany192 and subsequent cases,193 the decisions directly at issue before the ICJ in Jurisdictional Immunities, the Italian Court of Cassation ruled that a state may not rely on immunity from jurisdiction as a procedural bar to civil claims in respect of alleged violations of jus cogens.194 On top of this, a vocal school of international legal thought195 and activism196 continued to press for the recognition of some sort of exception to state immunity in the context of alleged violations of international rules for the protection of the human person or, more specifically, of jus cogens. In short, although prior to Jurisdictional Immunities customary international law seemed to favour the retention of state immunity as a procedural bar to claims for damages in respect of alleged violations of international humanitarian or human rights law or of jus cogens, the matter was by no means beyond doubt, and remained vociferously contested.

189 See Prefecture of Voiotia v Germany (n 145) 521. It will be recalled that the enforcement of the judgment by the Italian courts was one of the triggers for Germany’s application to the ICJ in Jurisdictional Immunities (n 5). 190 See Margellos v Germany (n 146) 532, para 14. 191 See Margellos v Germany (n 146) 532, para 14. 192 See Ferrini v Germany (2004) 128 ILR 658, 668–74, paras 8.2–12, esp 668–9, paras 9–9.1. While the Judgment refers consistently to ‘international crimes’, rather than to violations of jus cogens, it characterizes the norms in question as ones ‘from which no derogation is permitted’ and which ‘prevail over all other conventional and customary norms’, and cites in this context Articles 40 and 41 of the Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc A/RES/56/83, Annex (28 January 2002), which relate to serious breaches of obligations arising under peremptory norms of general international law. 193 See eg Germany v Mantelli ILDC 1037 (IT 2008) para 11; Italy v Milde ILDC 1224 (IT 2009) paras 3–7; Germany v Autonomous Province of Voiotia ILDC 1815 (IT 2011) para 28. 194 See Margellos v Germany (n 146) 532, para 14. 195 See eg K Bartsch and B Elberling, ‘Jus Cogens vs. State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al v Greece and Germany Decision’ (2003) 4 German LJ 477, 483–90; A Bianchi, ‘L’immunité des Etats et les violations graves des droits de 1’homme: la fonction de l’interprète dans la détermination du droit international’ (2004) 108 Revue Générale de Droit International Public 63; A Bianchi, ‘Overcoming the Hurdle of State Immunity in the Domestic Enforcement of International Human Rights’ in B Conforti and F Francioni (eds), Enforcing International Human Rights In Domestic Courts (The Hague: Martinus Nijhoff, 1997) 405; RS Brown, ‘Access to Justice for Victims of Torture’ in F Francioni (ed), Access To Justice as a Human Right (Oxford: OUP, 2007) 205; S Humes-Schulz, ‘Limiting Sovereign Immunity in an Age of Human Rights’ (2008) 21 Harvard Human Rights J 105; L McGregor, ‘Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’ (2007) 18 EJIL 903; A Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong’ (2008) 18 EJIL 955; A Orakhelashvili, ‘State Immunity in National and International Law: Three Recent Cases Before the European Court of Human Rights’ (2002) 15 Leiden JIL 703; I Pingel, ‘Droit d’accès aux tribunaux et exception d’immunité: la Cour de Strasbourg persiste’ (2002) 106 Revue Générale de Droit International Public 893, 906; E Steinerte and RMM Wallace, ‘Jones v Ministry of Interior of the Kingdom of Saudi Arabia, [2006] UKHL 26’ (2006) 100 American JIL 901. 196 See eg Press Release, Redress, Amnesty International and Justice, UK: Saudi Torture Ruling Is a Sad Day for British Justice (14 June 2006), <http://www.amnesty.org.uk/news_details.asp?NewsID= 16992> (accessed 17 May 2013).


Jurisdictional Immunities

141

3.2.2.2 The Court’s position In Jurisdictional Immunities, the ICJ prefaced its examination of Italy’s first submission, namely ‘that international law does not accord immunity to a State, or at least restricts its right to immunity, when that State has committed serious violations of the law of armed conflict’,197 with the following observation: [T]he proposition that the availability of immunity will be to some extent dependent upon the gravity of the unlawful act presents a logical problem. Immunity from jurisdiction is an immunity not merely from being subjected to an adverse judgment but from being subjected to the trial process. It is . . . necessarily preliminary in nature. Consequently a national court is required to determine whether or not a foreign State is entitled to immunity as a matter of international law before it can hear the merits of the case brought before it and before the facts have been established. If immunity were to be dependent upon the State actually having committed a serious violation of international human rights law or the law of armed conflict, then it would become necessary for the national court to hold an enquiry into the merits in order to determine whether it had jurisdiction. If, on the other hand, the mere allegation that the State had committed such wrongful acts were to be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect, be negated simply by skilful construction of the claim.198

But the Court acknowledged all the same that it was obliged to ascertain ‘whether customary international law ha[d] developed to a point where a State [was] not entitled to immunity in the case of serious violations of human rights law or the law of armed conflict’.199 Turning to its task, the Court surveyed ‘a substantial body of State practice’ which demonstrated that ‘customary international law does not treat a State’s entitlement to immunity as dependent on the gravity of the act of which it is accused or the peremptory nature of the rule which it is alleged to have violated’.200 ‘Arguments to the effect that international law no longer required State immunity in cases of allegations of serious violations of international human rights law, war crimes or crimes against humanity [had] been rejected’ by a wide range of national courts;201 the US’s amendment to its FSIA in respect of designated state sponsors of terrorism had ‘no counterpart in the legislation of other States’;202 it was ‘noticeable that there [was] no limitation of State immunity by reference to the gravity of the violation or the peremptory character of the rule breached in the European Convention [or] United Nations Convention’, the latter absence being ‘particularly significant, because the question whether such a provision was necessary was raised at the time that the text which became the

197

198 Jurisdictional Immunities (n 5) para 82. Jurisdictional Immunities (n 5) para 81. 200 Jurisdictional Immunities (n 5) para 84. Jurisdictional Immunities (n 5) para 83. 201 Jurisdictional Immunities (n 5) para 85, citing most of the cases cited n 171. The Court noted, at para 83, that the decision in Prefecture of Voiotia v Germany had been repudiated by the Greek Special Supreme Court in Margellos v Germany, the latter being the decision that the Greek courts were bound to follow. 202 Jurisdictional Immunities (n 5) para 88. 199


142

The Development of International Law by the ICJ

Convention was under consideration’;203 and the European Court of Human Rights ‘had not accepted the proposition that States [were] no longer entitled to immunity in cases regarding serious violations of international humanitarian law or human rights law’.204 In this light, the Court concluded ‘that, under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict’.205 It emphasized for the avoidance of doubt that, in reaching this conclusion, it was ‘addressing only the immunity of the State itself from the jurisdiction of courts of other States’, since ‘the question whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State [was] not in issue’ in the case.206 The Court next addressed the limb of Italy’s argument based on ‘the existence of a conflict between a rule, or rules, of jus cogens and the rule of customary international law which requires one State to accord immunity to another’,207 holding as follows: In the opinion of the Court, . . . no such conflict exists. Assuming for this purpose that the rules of the law of armed conflict which prohibit the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of prisoners of war to slave labour are rules of jus cogens, there is no conflict between those rules and the rules on State immunity. The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether the conduct in respect of which the proceedings are brought was lawful or unlawful. . . . [R]ecognizing the immunity of a foreign State in accordance with international law does not amount to recognizing as lawful a situation created by the breach of a jus cogens rule, or rendering aid or assistance in maintaining that situation, and so cannot contravene the principle in Article 41 of the International Law Commission’s Articles on State Responsibility.208

‘Nor [was] the argument strengthened’, the Court continued, ‘by focusing upon the duty of the wrongdoing State to make reparation, rather than upon the original wrongful act’:209 The duty to make reparation is a duty which exists independently of those rules which concern the means by which it is to be effected. The law of State immunity concerns only 203 Jurisdictional Immunities (n 5) para 89, referring to the ECSI and UNCSI and recounting the drafting history cited nn 178–81, which ‘indicate[d] that, at the time of the adoption of the United Nations Convention in 2004, States did not consider that customary international law limited immunity in the way . . . suggested by Italy’. 204 Jurisdictional Immunities (n 5) para 90, referring to Al-Adsani v United Kingdom (n 28) and Kalogeropoulou v Greece and Germany (n 28). 205 Jurisdictional Immunities (n 5) para 91. 206 Jurisdictional Immunities (n 5) para 91. The distinction was one of the reasons the Court, at para 87, considered irrelevant the House of Lords’ decision in Pinochet (No 3) (n 80), the other being that the decision turned on the language of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (n 80). 207 Jurisdictional Immunities (n 5) para 93. 208 Jurisdictional Immunities (n 5) para 94. 209 Jurisdictional Immunities (n 5) para 94.


Jurisdictional Immunities

143

the latter; a decision that a foreign State is immune no more conflicts with the duty to make reparation than it does with the rule prohibiting the original wrongful act.210

‘To the extent’, furthermore, ‘that it [was] argued that no rule which is not of the status of jus cogens may be applied if to do so would hinder the enforcement of a jus cogens rule, even in the absence of a direct conflict’, the Court saw ‘no basis for such a proposition’:211 A jus cogens rule is one from which no derogation is permitted but the rules which determine the scope and extent of jurisdiction and when that jurisdiction may be exercised do not derogate from those substantive rules which possess jus cogens status, nor is there anything inherent in the concept of jus cogens which would require their modification or would displace their application.212

The Court recalled that it had taken this approach in two cases of its own, including Arrest Warrant, ‘notwithstanding that the effect was that a means by which a jus cogens rule might be enforced was rendered unavailable’.213 It ‘considered that the same reasoning [was] applicable to the application of the customary international law regarding the immunity of one State from proceedings in the courts of another’.214 Moreover, the argument that ‘jus cogens displac[es] the law of State immunity’ had been rejected by a range of national courts and by the European Court of Human Rights, and was not reflected in national legislation.215 In this light, the Court concluded that, ‘even on the assumption that the proceedings in the Italian courts involved violations of jus cogens rules, the applicability of the customary international law of State immunity was not affected’.216 As for the third of Italy’s interrelated submissions, namely ‘that the Italian courts were justified in denying Germany the immunity to which it would otherwise have been entitled because all other attempts to secure compensation for the various groups of victims involved in the Italian proceedings had failed’,217 the Court could find ‘no basis’ in State practice to suggest ‘that international law makes the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress’.218 Such a rule, moreover, would be ‘exceptionally difficult’ to apply.219 3.2.2.3 Analysis As with its ruling on the ‘territorial tort’ point, the ICJ’s conclusion on the international humanitarian law/international human rights law/jus cogens point is 210

211 Jurisdictional Immunities (n 5) para 95. Jurisdictional Immunities (n 5) para 95. Jurisdictional Immunities (n 5) para 95. 213 Jurisdictional Immunities (n 5) para 95. The other case alluded to by the Court is Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda) [2006] ICJ Rep 6, 32, para 64. 214 Jurisdictional Immunities (n 5) para 95. 215 Jurisdictional Immunities (n 5) para 96. 216 Jurisdictional Immunities (n 5) para 97. 217 Jurisdictional Immunities (n 5) para 98. 218 Jurisdictional Immunities (n 5) para 101, referring again to national legislation and case law and to the ECSI and UNCSI. 219 Jurisdictional Immunities (n 5) para 102. 212


144

The Development of International Law by the ICJ

framed as a determination of the state of customary international law ‘as it presently stands’.220 Even more, however, than in relation to the ‘territorial tort’ exception, the Court’s categorical rejection of the putative humanitarian/human rights/jus cogens exception to state immunity, bolstered as it is by persuasive arguments as to legal principle, promises to forestall any possibility of customary developments on this score for decades to come. It is true that, prior to the Judgment, it was only the Italian courts that had consistently recognized an exception of the kind alleged, in their case relying effectively221 on the peremptory character of the international prohibitions at issue as the rationale for the abrogation of state immunity. To this extent, it could be argued that the Court’s voice is simply the latest to be raised in what has been a chorus of dismissal. But arguments such as those put to the Court by Italy have nonetheless continued to be advanced in a seemingly endless procession of speculative claims across a host of jurisdictions, the hope apparently being that a court somewhere sometime would, like the Italian Court of Cassation, place dogmatic naturalism before state practice and opinio juris and, for that matter, formal logic. After the ICJ’s Judgment, it is hard to see even the most optimistic victims’ organization or loss-leading law firm, let alone legal aid fund, backing the sort of case so roundly ruled out by the Court. National courts have already begun to take heed of Jurisdictional Immunities. In August 2012, the Court of Appeal of Quebec, Canada, referring to the ICJ’s ‘conclusive refutation’ of arguments for an exception to a foreign state’s immunity from jurisdiction in favour of ‘a jus cogens protection of human rights’, held unanimously in Islamic Republic of Iran v Hashemi that no such exception exists.222 For its part, the Italian Court of Cassation, whose judgments from Ferrini onwards were impugned in Jurisdictional Immunities, accepted also in August 2012 that the principles enunciated in Ferrini do not at present reflect positive customary international law.223 This is not to say that all cognate civil claims that as a matter of the international law of state immunity ought not to proceed will from now on be defeated. It may be that not every state falls into line in every regard. First, although the US’s abrogation of state immunity in respect of specified claims against designated state sponsors of terrorism has been holed below the water by the ICJ’s conclusions in Jurisdictional Immunities and by the Court’s pointed observation that this abrogation had ‘no counterpart in the legislation of other States’,224 it is unlikely in the

220

221 See above n 192. Jurisdictional Immunities (n 5) para 91. Iran v Hashemi (2012) QCCA 1449, paras 54–5, quote at para 55. 223 See judgment n. 32139 of 30 May 2012, rendered 9 August 2012 Fr CoC (First Criminal Section) paras 5–7. (The case involved a claim for civil damages on the back of a criminal prosecution.) The Court of Cassation insisted nonetheless on the coherence of its criticized reasoning, doubted the reasoning of the ICJ insofar as the latter denied the existence of any conflict between the putative norms of jus cogens violated by Germany and Italy’s obligation to accord Germany immunity, and observed that an exception to immunity as enunciated in Ferrini could emerge in future. 224 Jurisdictional Immunities (n 5) para 88. 222


Jurisdictional Immunities

145

extreme that 28 USC }1605A will be repealed anytime soon. Furthermore, the provision now has at least one counterpart. On 13 March 2012, five weeks after the ICJ’s Judgment, Canada’s Safe Streets and Communities Act 2012225—which had been tabled in Parliament on 20 September 2011226—received assent. Section 5227 of the Act inserts into Canada’s State Immunity Act a section 6.1 akin to 28 USC }1605A.228 Secondly, while international law conceives of the immunity of foreign state officials from civil proceedings in respect of acts performed by them in their capacity as state officials as an instantiation of state immunity pure and simple,229 US federal common law,230 as traditionally ‘suggested’ in this regard to the federal courts by the US Department of State, appears to conceive of situations in which the immunity of a state official acting in that capacity and the immunity of the state eo nomine are not coextensive.231 This raises the possibility that Jurisdictional Immunities may not be taken in the US to apply to so-called ‘foreign official immunity’. What is more, on 2 November 2012, nine months after the ICJ’s outright rejection of such arguments in relation to the immunity of a foreign state when sued as such, the US Court of Appeals for the Fourth Circuit held in Yousuf v Samantar that, ‘under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity’.232 The Court spoke of ‘an increasing trend in international law’ (as evidenced by a quotation from a law journal article, a misreading of the ratio decidendi of the criminal case of Pinochet (No 3), and passing reference to Ferrini v Germany, which the court was fairminded enough to contrast with Jones v Saudi Arabia) ‘to abrogate foreign official immunity for individuals who commit acts, otherwise attributable to the State, that violate jus cogens norms—i.e., they commit international crimes or human rights

225

226 See Safe Streets and Communities Bill (Bill C-10). SC 2012, c. 1. Section 5 falls within a sub-part, entitled ‘Amendments to the State Immunity Act’, of Part I (itself entitled the Justice for Victims of Terrorism Act) of the SSCA. 228 Section 6.1 SIA (Can) provides: ‘(1) A foreign state that is set out on the list referred to in subsection (2) is not immune from the jurisdiction of a court in proceedings against it for its support of terrorism on or after 1 January 1985. (2) The Governor in Council may, by order, establish a list on which the Governor in Council may, at any time, set out the name of a foreign state if, on the recommendation of the Minister of Foreign Affairs made after consulting with the Minister of Public Safety and Emergency Preparedness, the Governor in Council is satisfied that there are reasonable grounds to believe that the foreign state supported or supports terrorism. . . . (11) Where a court of competent jurisdiction has determined that a foreign state, set out on the list in subsection (2), has supported terrorism, that foreign state is also not immune from the jurisdiction of a court in proceedings against it that relate to terrorist activity by the state.’ 229 See eg UNCSI, Art 2(1)(b)(iv), including within the definition of ‘State’ for the purposes of the UNCSI ‘representatives of the State acting in that capacity’. 230 That the question is one of federal common law, rather than of the FSIA, was determined by the US Supreme Court in Samantar v Yousuf (2010) 147 ILR 726 (USSC). 231 See eg Samantar v Yousuf (n 230) 736–37. 232 Yousuf et al v Samantar United States Court of Appeals for the Fourth Circuit, Appeal No 11-1479, 2 November 2012, 21–2. See also 23: ‘Because this case involves acts that violated jus cogens norms, including torture, extrajudicial killings and prolonged arbitrary imprisonment of politically and ethnically disfavored groups, we conclude that [the defendant] is not entitled to conduct-based official immunity under common law, which in this area incorporates international law.’ 227


146

The Development of International Law by the ICJ

violations’, even if ‘the jus cogens exception appear[ed] to be less settled in the civil context’.233 But such idiosyncratic national approaches are likely to remain just that. Additionally, although the Judgment of the Court of Appeals for the Fourth Circuit in Samantar postdates the Judgment in Jurisdictional Immunities, the written pleadings long precede it. For its part, the State Department’s Statement of Interest in the case—in deference to which, a year before the ICJ’s Judgment, the US District Court for the Eastern District of Virginia dismissed at first instance the defendant’s plea of ‘foreign official immunity’234—was submitted as far back as 14 February 2011235 and was simply reiterated in the Department’s amicus curiae brief on appeal, filed on 24 October 2011,236 again prior to the ICJ’s Judgment. Of relevance for present purposes, this Statement of Interest characterized ‘foreign official immunity’ as an aspect of foreign sovereign immunity (that is, state immunity),237 a characterization affirmed in the appellate Judgment;238 was avowedly based on a consideration of, inter alia, ‘the applicable principles of customary international law’;239 and did not allege a jus cogens-based or similar exception to immunity.240 In this light, it would be premature to rule out the possibility that the ICJ’s conclusion in Jurisdictional Immunities as to the non-existence under customary international law of a jus cogens exception to state immunity may yet influence even the US federal common law of ‘foreign official immunity’.

4. The ICJ versus other international lawmaking processes The ICJ was a latecomer to the international law of jurisdictional immunities. The customary international rules on state immunity in the context of civil jurisdiction have developed over centuries, with the evolution from the absolute 233 See Yousuf et al v Samantar (n 232) 20–1, citing CA Bradley and LR Helfer, ‘International Law and the US Common Law of Foreign Official Immunity’, 2010 Sup. Ct Rev. 213, 236–7; Pinochet (No 3) (n 80); Ferrini v Germany (n 192); Jones v Saudi Arabia (n 137). 234 See Yousuf et al v Samantar United States District Court for the Eastern District of Virginia, Civil Action No. 1:04 CV 1360 (LMB), Order (Leonie M Brinkema, District Judge), 15 February 2011. 235 See Yousuf et al v Samantar United States District Court for the Eastern District of Virginia, Civil Action No. 1:04 CV 1360 (LMB), Statement of Interest of the United States of America, 14 February 2011. 236 See Yousuf et al v Samantar United States Court of Appeals for the Fourth Circuit, Appeal No 11-1479, Brief for the United States as Amicus Curiae Supporting Appellees, 24 October 2011. In contrast to the court at first instance, the Court of Appeals for the Fourth Circuit did not simply defer to the State Department’s determination of immunity, preferring a jus cogens-based ratio decidendi. 237 See Yousuf et al v Samantar, Statement of Interest (n 235) paras 3 and 5. 238 See Yousuf et al v Samantar (n 232) 16–17. 239 Yousuf et al v Samantar, Statement of Interest (n 235) para 9. 240 The State Department, in Yousuf et al v Samantar, Statement of Interest (n 235) para 9, instead considered it ‘critical’ that the defendant was ‘a former official of a state with no currently recognized government to request immunity on his behalf, including by expressing a position on whether the acts in question were taken [sic] in an official capacity’, and that ‘US residents like [the defendant] who enjoy the protections of US law ordinarily should be subject to the jurisdiction of [US] courts, especially when sued by US residents’.


Jurisdictional Immunities

147

to the restrictive doctrine over the past 120 years being driven both by unilateral moves on the part of national courts and legislatures and by states’ contributions and reactions to more coordinated, international efforts, public and private, towards the progressive development and eventual binding codification of a new international law of state immunity.241 The catalytic role in the latter regard of the ILC, through its work from 1978 to 1991 on what became its draft articles on jurisdictional immunities of states and their property,242 deserves special mention. So does the part played by the Sixth Committee of the United Nations General Assembly, in particular through its Ad Hoc Committee on Jurisdictional Immunities of States and Their Property, which shepherded interstate efforts to transform the ILC’s draft articles into the eventual United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted by the General Assembly in late 2004. As for the particular immunities from which serving and former diplomats, consuls, heads of state, and members of special missions benefit under international law, their genesis and the shaping of their basic contours similarly owe nothing to the Court,243 being the products of largely the same processes as gave rise to the modern law of state immunity, among them (bar in relation to head-ofstate immunity) the active involvement of the ILC in the elaboration of codificatory conventions.244 In some measure, then, what the ICJ has added to the international law of jurisdictional immunities has been by way of icing on the cake. But in relation to the immunity of state officials from foreign criminal jurisdiction beyond the codified realm, particularly in respect of allegations of international crimes, the opportunity for the ICJ’s involvement presented itself while the ingredients, so to speak, were still being assembled. State practice prior to Arrest Warrant was sparse, permitting the Court to become the dominant participant in the emergence of the law, including in its crystallization via the subsequent work— triggered in large part by the Court itself—of the ILC. As for the Court’s contribution to the question of state immunity from proceedings alleging violations of international rules, peremptory or otherwise, for the humane treatment of individuals and groups, while this ceded more ground to prior national case law, this practice was divided and contested, leaving the issue unresolved and the Court in a position to stamp its authority on the law. 241 See, generally, G Hafner, ‘Historical Background to the Convention’ in O’Keefe and Tams (n 168) 1; H Fox, The Law of State Immunity (Oxford: OUP, 2nd edn 2008), chs 8 and 9; Y Xiaodong, State Immunity in International Law (Cambridge: CUP, 2012), ch 1. 242 See n 155. 243 That said, the Court’s reconceptualization of head-of-state immunity in Arrest Warrant as akin to diplomatic immunity, including in the pragmatic reasons that underpin it, rather than as an instantiation of state immunity, has significant implications, in particular for the content of head-ofstate immunity from civil proceedings. See R O’Keefe, ‘Article 3’ in O’Keefe and Tams (n 168) 73, 84–8. 244 See draft articles on diplomatic intercourse and immunities, ILC Ybk 1958 II, 89, para 53, which resulted in the VCDR (n 41); draft articles on consular relations, ILC Ybk 1961 II, 92, para 37, which led to the Vienna Convention on Consular Relations, Vienna, 24 April 1963, 596 UNTS 261; draft articles on special missions, ILC Ybk 1967 II, 347, para 35, which eventuated in the CSM (n 41). Consider also draft articles on the representation of states in their relations with international organizations, ILC Ybk 1971 II/2, 284, para 60, which fed into the VCRS (n 41).


148

The Development of International Law by the ICJ

5. Conclusion The ICJ has had occasion to rule and has made occasion to speak on state immunity and on immunities ratione personae both positive and putative. It has taken these and other opportunities to expound as well on general features of the international law of jurisdictional immunities. In its pronouncements on the more contentious questions, the Court has vigorously affirmed a traditional vision of non-contestational interstate relations based on mutual respect for sovereignty, preferring fraught issues of international responsibility, whether state or individual, to be kept out of national courts. According to its supporters, the Court has in this way contributed to the restoration of sanity after a period of fractious disequilibrium. To its opponents, the Court has thrown in its lot with the forces of reaction, variously spearheading and sanctifying an international legal counterreformation. Either way, the formal and informal impact on the relevant rules of customary international law of the Court’s sometimes activist, sometimes orthodox judgments has been and will continue to be significant. This is all the more so for the fact that, when it comes to the law of jurisdictional immunities, the Court’s constituency comprises in large part other courts, which for reasons both institutional and instinctual are more likely than the executive or legislative branches of states to give unmediated effect to its rulings, even if they may not always explicitly acknowledge them.


PART IV SPATIAL REGIMES


This page intentionally left blank


8 The International Court of Justice and the Law of Territory Malcolm N Shaw QC

1. Introduction The law relating to territory remains the bedrock of both classical and modern international law. The rise of globalization and supranational organizations and enterprises notwithstanding, the concepts of territorial sovereignty and territorial integrity constitute the beating heart of international law. Without those concepts, statehood would be legally meaningless and the international system would still be founded securely upon the notion of independent, sovereign states interacting with a view to progressing both national interests and, to some extent, international cooperation. The political/legal notion of sovereignty itself is founded upon the fact of territory. Without territory, and more particularly territorial sovereignty, a legal person cannot be a state.1 It is the basic characteristic of a state and thus statehood. The international political system functions on the basis of the existence of some 200 distinct territorial units, each one subject to a different territorial sovereign. From this sovereignty flows as a consequence the concept of jurisdiction. The principle whereby a state is deemed to exercise exclusive power over its territory can be regarded as a fundamental axiom of classical international law.2 The development of international law upon the basis of the exclusive authority of the state within an accepted territorial framework has meant that territory has become ‘perhaps the fundamental concept of international law’.3

1 See RY Jennings and AD Watts (eds), Oppenheim’s International Law (Oxford: OUP, 9th edn 1992) 563. 2 See L Delbez, ‘Du territoire dans ses rapports avec l’état’ (1932) 39 Revue générale de droit international public 46. See also N Hill, Claims to Territory in International Law and Relations (Cambridge: CUP, 1945) 3; and SP Sharma, Territorial Acquisition, Disputes and International Law (Dordrecht: Martinus Nijhoff, 1997). 3 DP O’Connell, International Law (London: Stevens & Sons, 2nd edn 1970), vol I, 403. See also RY Jennings, The Acquisition of Territory in International Law (Manchester: MUP, 1963) 87, and Island of Palmas (Netherlands v US ) (1928) 2 RIAA 829, 838.


152

The Development of International Law by the ICJ

From such fundamentals have evolved a series of norms in international law aimed at the protection and safeguarding of the state’s relationship to its territorial space. The principle of respect for the territorial integrity of states still clearly functions as one of the linchpins of the international system, as does the norm prohibiting interference in the internal affairs of other states. Although the territorial exclusivity of the state in international law has been affected by political, technological, and economic changes as the importance of interdependence and cooperation through multinational arrangements and international organizations become ever more evident in areas such as human rights, the environment, and trade, it is fair to say that territorial sovereignty remains at the core of international law. The importance of territory within the international system is thus emphasized by the evolution of rules that have had the purpose and consequence of ring-fencing it. Article 2(4) of the United Nations Charter, for example, provides that ‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State’, while the Declaration on Principles of International Law Concerning Friendly Relations 1970 states that ‘All States enjoy sovereign equality . . . In particular, sovereign equality includes the following elements . . . (d) The territorial integrity and political independence of the States are inviolable’.4 The International Court of Justice (ICJ, or ‘the Court’), as the principal judicial organ of the United Nations and as the pre-eminent organ of international law, has frequently been called upon to adjudge on territorial issues. Title to territory, as well as consequences of title, have long formed an important part of the work of international courts and tribunals generally, and of the ICJ in particular. That the Court should have played an important role in clarifying the international law of territory therefore comes as no surprise. We shall trace its influence through a series of challenges.

2. Sovereignty, territory, and title It was famously Judge Huber who emphasized in the Island of Palmas case that ‘sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular state.’5 The ICJ has gradually built upon this somewhat cryptic formulation. The importance of territorial sovereignty has been underlined, with the ICJ noting in the Asylum case that ‘derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each case’,6 while recently underlining ‘the central importance in international law and relations of state sovereignty over

4 GA Res 2625 (XXV) (24 October 1970), adopted without a vote (‘Declaration Concerning Friendly Relations’). 5 Island of Palmas (n 3). 6 Asylum (Colombia v Peru) [1950] ICJ Rep 266, 275.


The Law of Territory

153

territory and of the stability and certainty of that sovereignty’.7 While, of course, states are free to consent to modifications of the exercise of jurisdiction over their territory,8 the starting point is always that limitations of the sovereignty of a state over its territory are not to be presumed.9 The notion of territorial sovereignty, or the legal manifestation of state power over a particular area, is a composite one. It encompasses a range of rights and obligations. One may conclude, therefore, that territorial sovereignty is not an absolute inflexible concept, but rather a collection of legal rights, powers, liabilities, and duties, the exact extent of which will depend upon the precise circumstances. However, that having been said, it is clear that not all rights or links will amount to territorial sovereignty. For example, territorial sovereignty must be distinguished from ownership or other non-sovereign private rights of property.10 Further, the Court emphasized in the Western Sahara case that territorial sovereignty involved far more than personal ties of allegiance between a people and a ruler and certain rights relating to the land. The Court was prepared to acknowledge that ties of the former category existed at the relevant time (the establishment of Spanish control in the nineteenth century) between the Sultan of Morocco and some of the tribes living in the Western Sahara, and that some rights of the latter type existed as between the ‘Mauritanian entity’ and the territory of Western Sahara, but it emphasized that no ties of territorial sovereignty were involved.11 This approach was underlined in the Qatar v Bahrain case, where the Court noted that while there may have been at different times ties of personal allegiance between the tribe and ruler in question, there was no evidence that this fell within the category of the exercise of ‘sovereign authority on behalf of ’ the particular ruler in the territory in dispute.12 It is, however, clear that the concept of territorial sovereignty has significant elements of relativity. The Court in the Western Sahara case noted that the legal regime of the territory, including its legal relations with neighbouring countries, could not be properly appreciated without reference to the special characteristics of the territory itself.13 Accordingly, ‘It is in the context of such a territory and such a social and political organization of the population that the Court has to examine the question of the “legal ties” between Western Sahara and the Kingdom of Morocco and the Mauritanian entity’.14 Further, the Court emphasized that ‘where 7 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore) [2008] ICJ Rep 12, para 122. See also Asylum (n 6) 275. 8 See eg the Protocol Concerning Frontier Controls and Policing, Cooperation in Criminal Justice, Public Safety and Mutual Assistance relating to the Channel Fixed Link, 1991, and the Israel-Jordan Treaty of Peace, 1994, Annex I(b) and (c). 9 Dispute regarding Navigational and Related Right (Costa Rica v Nicaragua) [2009] ICJ Rep 213, para 48. 10 Malaysia/Singapore (n 7) para 222. 11 Western Sahara [1975] ICJ Rep 12, paras 105–6, 152, and 162. See also MN Shaw, ‘The Western Sahara Case’ (1978) 49 BYIL 119. 12 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Merits) [2001] ICJ Rep 40, para 86. 13 Western Sahara (n 11) para 87. 14 Western Sahara (n 11) para 89.


154

The Development of International Law by the ICJ

sovereignty over territory is claimed, the particular structure of a State may be a relevant element in appreciating the reality or otherwise of a display of State activity adduced as evidence of that sovereignty’, especially as no rule of international law existed requiring the structure of a state to follow a particular pattern.15 The Court returned to this in Malaysia/Singapore. While referring to Singapore’s assertion about the existence of a ‘traditional Malay concept of sovereignty’ based on control over people rather than on control over territory, the Court noted that ‘sovereignty comprises both elements, personal and territorial’.16 There was no need in the circumstances to say more than this, but the point was reaffirmed that in certain situations in the pre-colonial era, the manifestation of sovereignty would be interpreted flexibly. The essence of territorial sovereignty is contained in the notion of title. The Court has, however, made a distinction between the concept of title and legal title as such. The former in general terms relates to both the factual and legal conditions under which territory is deemed to belong to one particular authority or another and refers to the existence of those facts required under international law to entail the legal consequences of a change in the juridical status of a particular territory.17 As noted in the Burkina Faso/Mali case,18 the ‘concept of title’ comprehends both any evidence which may establish the existence of a right and the actual source of that right. It is thus a territorial matrix around which the notion of ‘legal title’ may be understood. The latter phrase was defined during a discussion of the role of maps in the Burkina Faso/Mali case.19 Legal or territorial title was said to be ‘a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights’. In this sense, title as documentary evidence, usually a boundary treaty, is to be contrasted with other manifestations or claims of sovereignty such as effectivités (or the effective or practical exercise of sovereign power). The Court returned to this question in El Salvador/Honduras 20 where it was faced with the use of the term ‘title’ by litigating parties in ways making it unclear which particular meaning was intended. The Court, in an attempt to further clarify the relevant principles, repeated its statements from the Burkina Faso/Mali case and 15 Western Sahara (n 11) para 94. See also the Rann of Kutch case, where it was stated that ‘the rights and duties which by law and custom are inherent in and characteristic of sovereignty present considerable variations in different circumstances according to time and place, and in the context of various political systems’ (50 ILR 2, 501); and the Dubai/Sharjah arbitration award noting that ‘[t]he applicable rules of international law relating to boundary disputes are those which are concerned with the resolution of claims to sovereignty over territory. Yet to apply those rules, in their contemporary form, to peoples which have had, until very recently, a totally different conception of sovereignty would be highly artificial’ (91 ILR 543, 587). See also the Tribunal in Eritrea/Yemen (Phase One: Territorial Sovereignty), noting ‘the sheer anachronism of attempting to attribute to such a tribal, mountain and Muslim medieval society the modern Western concept of a sovereignty title’ (114 ILR 1, 116). 16 Malaysia/Singapore (n 7) para 79. 17 See eg Jennings (n 3) 4. See also I Brownlie, Principles of Public International Law (Oxford: OUP, 6th edn 2003) 119. 18 Frontier Dispute (Burkina Faso/Mali) [1986] ICJ Rep 554, para 18. 19 Burkina Faso/Mali (n 18) para 54. 20 Land, Island and Maritime Frontier (El Salvador/Honduras: Nicaragua Intervening) [1992] ICJ Rep 351, paras 44 –5.


The Law of Territory

155

then added that title, in the sense of the source of rights at the international level, could also derive from succession of the states in question from the colonial sovereign (Spain), while the extent of territory would be determined by the uti possidetis juris.21 Further, title could be based upon the domestic legislation of the colonial power in view of the importance of succession. The Court in addition drew attention to the significance of what it termed ‘colonial effectivités’, defined in Burkina Faso/Mali as ‘the conduct of the administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during the colonial period’.22 Accordingly, ‘title’ is to be understood as the legal categories providing for international acceptance of sovereign ownership of the territory in question. Such categories commence with ‘legal title’ narrowly defined—pertinent documentary evidence, primarily boundary treaties—and move to succession of states with territorial sovereignty or ownership devolving from one recognized sovereign to another. If necessary in the circumstances, relevant authoritative practice by the previous sovereign is incorporated. This understanding informs the Court’s jurisprudence on specific aspects of the law of territory.

3. Pre-colonial title The ICJ has recognized and confirmed the existence of sovereign title with regard to territories that subsequently fell under colonial rule. In the case of entities that were already regarded as having international legal status and thus participating in the international community, this posed no particular issue or difficulty, so that treaties of protection entered into by colonial powers with such territories as Morocco, Tunisia, and Madagascar (with France) or Bahrain and Qatar (with Great Britain) accepted the sovereign status in international law of the newly protected entities.23 Such status thereby continued. However, the process of colonization in subSaharan Africa proceeded upon a different basis. In the vast majority of cases, colonial control was established through treaties of protection signed not with recognized sovereign states but with ‘important indigenous rulers exercising local rule over identifiable areas of territory’.24 The Court in Cameroon v Nigeria reaffirmed the position it adopted in Western Sahara, namely that in territories that were not terra nullius, but were inhabited by tribes or peoples having a social and political organization, ‘agreements concluded with local rulers . . . were regarded as derivative roots of title’.25 In other words, such entities, while not being at the time recognized as states, did possess an international status. They did not lack consequence in this process but rather

21

22 Burkina Faso/Mali (n 18) para 63. See further, 6. See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) [2002] ICJ Rep 303, para 205. 24 Cameroon v Nigeria (n 23). 25 Western Sahara (n 11) para 80. See also Island of Palmas (n 3) 858–9. 23


156

The Development of International Law by the ICJ

constituted elements of which international law had to take account. Such entities were capable of holding title to territory and transmitting such title and thus were ex post facto (if not in reality at the time) accepted as sub-state participants in the international legal system with personality. This may be seen as a precursor of the approach which led to the establishment of the right to self-determination. In any event, it marked an acceptance of the validity of the pre-colonial title, although not of sovereignty and statehood as then perceived by the international community. The Court may thus be seen as putting forward an additional justification for the international legal right of self-determination.

4. Validity of colonial title For better or worse, international law revolves upon the axis of change and stability with relative caution. Nowhere is this better illustrated than with the difficult question of the validity and legality of colonial title. Few today would justify on the ethical level the process of colonization, whereby European states acquired overseas territories through various means in a dynamic expansionist phase from the fifteenth century. Of course, non-European states also engaged in territorial expansion in various periods of their history and also conquered and occupied territory contrary to the will of the indigenous population, but our inquiry is necessarily constrained. It has long been realized that simply turning back the clock and seeking to return title and sovereignty to the pre-colonial entities would be extraordinarily difficult and destabilizing, save where a clearly identified prior sovereign indeed possessed such title over the territory in question. However, even in this case, the principle of self-determination and the will of the people would constitute a relevant and decisive factor.26 Accordingly, the international community has adopted the view that colonial titles validly acquired under the law of the time would remain valid. This has involved as a necessary concomitant that boundaries validly drawn at the relevant time would so continue. Partly this has been due to the need for, and the principle of, the stability of boundaries. The Court declared in the Temple of Preah Vihear case that: ‘when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality’,27 while in Libya/Chad it was emphasized that: ‘[o]nce agreed the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasized by the Court.’28 This approach has been reflected in the general rule, going beyond questions as to colonial title as such, stating that a claim or situation or title or treaty29 has to

26

See further, 5. Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep 6, 34. 28 Territorial Dispute (Libya/Chad) [1994] ICJ Rep 6, para 72. See also Beagle Channel (Argentina v Chile) (1977) 21 RIAA 52, 88 and Dubai/Sharjah 91 ILR 543, 578. 29 See eg Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Rep 6, 37. 27


The Law of Territory

157

be examined according to the conditions and rules in existence at the time it was made and not at a later date.30 This is the intertemporal law.31 For example, in the seminal Island of Palmas case,32 the Spanish claim to title by discovery, which the United States declared it had inherited, had to be tested in the light of international legal principles in the sixteenth century when the discovery was made. This was noted by the Court in the Minquiers and Ecrehos case, where it was pointed out that an alleged feudal title to the islands in question which had been deemed of no current legal effect, would need to have been ‘replaced by another title valid according to the law of the time of replacement’.33 This aspect of the principle is predicated upon a presumption of, and need for, stability.34 But it was also noted in Island of Palmas that while the creation of particular rights was dependent upon the international law of the time, the continued existence of such rights depended upon their according with the evolving conditions of a developing legal system, although this stringent test would not be utilized in the case of territories with an ‘established order of things’.35 How far this aspect of the principle of international law may be extended is highly controversial. The better view is to see it as one element in the bundle of factors relevant to the determination of effective control, but one that must be applied with care.36 Of relevance to intertemporal law is the principle of self-determination,37 but while the evolution of this norm rendered untenable the argument for the continued sovereignty of the colonial power over the colonial territory without the 30 See eg Affaire des Grisbadarna (Norway/Sweden) (1909) 11 RIAA 147; Eastern Greenland (1933) PCIJ Ser A/B No 53, 46; and Libya/Chad (n 28) para 73. 31 See also Shaw (n 11) 152–3; Jennings (n 3) 28–31; TO Elias, ‘The Doctrine of Intertemporal Law’ (1980) 74 AJIL 285; Oppenheim’s International Law (n 1) 1281–2; G Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge: CUP, 1986) vol I,135; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989 (Part One)’ (1989) 60 BYIL 4, 128; R Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 ICLQ 501; and DW Greig, Intertemporality and the Law of Treaties (British Institute of International and Comparative Law, 2001) 108 ff. 32 Island of Palmas (n 3) 103. 33 Minquiers and Ecrehos (France v UK) [1953] ICJ Rep 47, 56. 34 See eg Eritrea/Yemen (n 15) 46 and 115; Eritrea/Ethiopia (2002) 130 ILR 1, 34; Cameroon v Nigeria (n 23) paras 203–5. 35 Island of Palmas (n 3) 839–45. See also M Sørensen, ‘Le problème dit du droit intertemporal dans l’ordre international’, Annuaire de l’Institut de Droit International (Basle, 1973) 4 ff, and subsequent discussions, ibid, 50 ff. See also the Resolution adopted by the Institut de Droit International, Annuaire de l’Institut de Droit International, 1975, 536 ff. Note that the 1970 Declaration on Principles of International Law (n 4) provides that the concept of non-acquisition of territory by force was not to be affected inter alia by any international agreement made prior to the Charter and valid under international law. 36 It is also to be noted in passing that the doctrine of intertemporal law has a wider application than the law of territory. For example, much consideration has been given to the interpretation of treaties. The Court in the Aegean Sea Continental Shelf case declared that the phrase ‘disputes relating to the territorial status of Greece’ in a Greek reservation to the 1928 Kellogg-Briand Pact had to be interpreted ‘in accordance with the rules of international law as they exist today, and not as they existed in 1931’. The evolution of international law concerning the continental shelf, therefore, had to be considered, so that the territorial status of Greece was taken to include its continental shelf, although that concept was completely unknown in the 1920s. Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3, para 80. 37 See further, 5.


158

The Development of International Law by the ICJ

consent of the population, it cannot be concluded that colonial title as such was avoided. On the contrary, state practice shows clearly that the successors to the colonial territories based, and continue to base, their title upon the validity of the colonial title coupled with self-determination. In its functional examination of the concept of terra nullius in the Western Sahara case, the Court declared that this concept constituted a legal term of art used in connection with the mode of acquiring sovereignty over territory known as occupation.38 It was also emphasized that the question had to be understood in the light of the law in force at the time of the colonization. The Court focused on the state practice of the era in question and concluded that this indicated that ‘territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius’.39 Accordingly, sovereignty was acquired not unilaterally through ‘occupation’ of terra nullius in the legal sense of the word by original title, but through agreements concluded with local rulers.40 This, therefore, placed considerable stress on the numerous agreements concluded between the European colonizing powers and the local communities within the context of the acquisition of title. Such agreements can now be seen as having a twofold function. In the first place, they constituted a colonial methodology for conflict avoidance as between the colonial powers. In this sense, the colonial powers agreed as between themselves that such agreements would have a preclusory function in preventing claims to control or sovereignty or territory rights by one colonial power faced by such agreements made by another power. In the second place, such agreements were significant factors in the acquisition of title to the territory in question. International law at the relevant time thus recognized that the process of territorial acquisition concerned not just inter-state activities but also relations between states and certain entities.41 The methodology often used in Africa in the process of title acquisition concerned the signing of treaties of protection. In the Tunis and Morocco Nationality Decrees case, the Permanent Court declared: [T]he extent of the powers of a protecting State in the territory of a protected State depends, first, upon the treaties between the protecting State and the protected State establishing the Protectorate and secondly upon the conditions upon which the Protectorate has been recognised by third Powers against whom there is an intention to rely on the provisions of these Treaties. In spite of common features possessed by Protectorates under international law they have individual legal characteristics resulting from the special conditions under which they were created, and the stage of their development.42

As regards the creation of the French protectorate over Morocco by the Treaty of Fez in 1912, for example, the ICJ noted that Morocco remained a sovereign state, and had granted certain sovereign powers to France.43 Thus, much depends upon 38

39 Western Sahara (n 11) para 80. Western Sahara (n 11) 79. 41 See 2. Western Sahara (n 11) para 80. 42 Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4, 27. 43 Rights of Nationals of the United States of America in Morocco (France v USA) [1952] ICJ Rep 176, 188. 40


The Law of Territory

159

the particular circumstances of the case. In this classic conception of the institution of the protectorate, should the protecting power exceed its authority as derived from the relevant agreement, the protected party may treat this agreement as broken.44 The ICJ in Cameroon v Nigeria discussed in some detail the nature of the relationship between Britain and the entities with which agreements had been signed. It was noted that the term ‘treaties of protection’, denoting agreements by which the protecting power asserted certain competences over the protected power, had differential meanings depending on the circumstances. On the one hand, such treaties were made with entities recognized as possessing sovereignty under international law, such as Morocco or Tunisia. On the other hand, the same term was used in sub-Saharan Africa with regard to agreements made with entities not so recognized. In such a case, the agreements in question were not treaties in the traditional international legal sense; however, the Court was at pains to emphasize that these accords had a certain status and were not to be regarded as nullities.45 Treaties of protection in this context were opposable to other colonial powers in that they would preclude such states from seeking to assert title or control over the areas covered by the particular agreement. The Court accepted the argument of Cameroon that the Treaty of Protection established what was termed a ‘colonial protectorate’ and that ‘in the practice of the period, there was little fundamental difference at international level, in terms of territorial acquisition between colonies and colonial protectorates’.46 Substantial differences between the status of colony and that of colonial protectorate were matters for the national law of the colonial power rather than international law. The key element of the colonial protectorate was the assumption of external sovereignty by the protecting state, which manifested itself through the power and capacity to acquire and cede part of the territory by international treaty without intervention by the population or entity in question. The Court thus built upon the decision of Judge Huber in the Island of Palmas case, in which it had been stated that a so-called treaty of protection was ‘not an agreement between equals; it is rather a form of internal organization of a colonial territory, on the basis of autonomy of the natives . . . And thus suzerainty over the native States becomes the basis of territorial sovereignty as towards other members of the community of nations’.47 In the Western Sahara case, the Court noted that in territories that were not terra nullius, but inhabited by tribes or people having a social and political organization, ‘agreements concluded with local rulers . . . were regarded as derivative roots of title’.48 The Court in Cameroon v Nigeria concluded: ‘Even if this mode of acquisition does not reflect current international law, the principle of intertemporal law requires that the legal consequences of the treaties concluded at that time in the Niger delta be given effect today, in the present

44 See E de Vattel, The Law of Nations: or, Principles of the Law of Nature Applied to the Conduct and Affairs and Nations and Sovereigns (1758) (B Kapossy and R Whatmore, eds, Indianapolis: Liberty Fund, 2008), vol. I, } 16. 45 Cameroon v Nigeria (n 23) para 205. 46 Cameroon v Nigeria (n 23) para 202. 47 Island of Palmas (n 3) 858–59. 48 Western Sahara (n 11) para 80.


160

The Development of International Law by the ICJ

dispute.’49 It therefore followed that Britain obtained title to the territory in question and was thus in a position to determine its boundaries with Germany.50 Accordingly, not only does international law—as confirmed and shaped by the ICJ’s jurisprudence—accept the validity of the pre-colonial title, it also accepts the validity of the colonial title.

5. Self-determination and the process of decolonization The affirmation or re-affirmation of pre-colonial and colonial titles by the Court may be best understood in the light not only of the need for stability of territorial sovereignty, but also of the adoption of the concept of self-determination. This espousal of the progressive evolution of the right of self-determination mitigated the apparently regressive acceptance of former titles. The development of what became known as decolonization focused tightly upon this principle in the international legal field. Drawing upon the confluence of the concepts of democracy and nationalism in the nineteenth century in western Europe and its gradual expansion eastwards and elsewhere in the following century, the principle inexorably entered the legal domain. While much of the actual practice in establishing and developing the principle has taken place in the United Nations, the role of the Court in the process has provided the essential stamp of authority and legitimacy. In terms of the progression of the concept in the UN, the following may be noted. The principle of selfdetermination first appeared in the UN Charter in Article 1(2), where the development of friendly relations among nations based upon respect for the principle of equal rights and self-determination was noted as one of the Organization’s purposes; Article 55 reiterated the phraseology. Resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the General Assembly on 14 December 1960, stressed that ‘all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. In 1966, the General Assembly adopted the International Covenants on Human Rights.51 Both of these Covenants have an identical first article, declaring inter alia that: ‘[a]ll peoples have the right to self-determination. By virtue of that right they freely determine their political status’, while states parties to the instruments ‘shall promote the realization of the right of self-determination and shall respect that right in conformity with the provisions of the Charter of the United Nations’. The Covenants came into force in 1976 and thus constitute binding provisions as between the parties, as well as arguably constituting authoritative interpretations of several human rights provisions in the Charter, including those dealing with

49

50 Cameroon v Nigeria (n 23) para 209. Cameroon v Nigeria (n 23) para 205. International Covenant on Civil and Political Rights, 999 UNTS 171; and International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3. 51


The Law of Territory

161

self-determination. The 1970 Declaration on Principles of International Law Concerning Friendly Relations, which was adopted without opposition by the UN General Assembly and can be regarded as constituting an authoritative interpretation of the seven Charter provisions it expounds, states inter alia that, ‘by virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all people have the right freely to determine . . . their political status’, while all states are under a duty to respect this right in accordance with the Charter.52 Judicial discussion of the principle of self-determination really commences with the Namibia Advisory Opinion, where the Court emphasized that ‘the subsequent development of international law in regard to non-self-governing territories as enshrined in the Charter of the United Nations made the principle of selfdetermination applicable to all of them’.53 In other words, in such territories, the people had the right to choose their political status. This was reaffirmed by the Court a few years later in the Advisory Opinion in the Western Sahara case.54 This case arose out of the decolonization of that territory, controlled by Spain as the colonial power but subject to irredentist claims by Morocco and Mauritania. The Court was asked for an opinion with regard to the legal ties between the territory at the time of colonization and Morocco and the Mauritanian entity. The Court stressed that the request for an opinion arose out of the consideration by the General Assembly of the decolonization of Western Sahara and that the right of the people of the territory to self-determination constituted a basic assumption of the questions put to the Court.55 After analysing the Charter provisions and Assembly resolutions noted above, the Court concluded that the ties that had existed between the claimants and the territory during the relevant period of the 1880s were not such as to affect the application of Resolution 1514 (XV), the Colonial Declaration, in the decolonization of the territory, and in particular the right to self-determination. In other words, it is clear that the Court regarded the principle of self-determination as a legal one in the context of such territories and one that would supersede, at least the kind of personal rights over the relevant territory found to have existed between Morocco and the Western Sahara56 and between ‘the Mauritanian entity’ and the territory57 at the time of colonization. 52 Declaration Concerning Friendly Relations (n 4). See eg R Rosenstock, ‘The Declaration of Principles of International Law Concerning Friendly Relations’ (1971) 65 AJIL 16, 111 and 115. 53 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, para 52. 54 Western Sahara (n 11) para 54. 55 Western Sahara (n 11) para 70. See in particular the view of Judge Dillard that ‘a norm of international law has emerged applicable to the decolonisation of those non-self-governing territories which are under the aegis of the United Nations’, 121–2. See also Judge Petren, 110. 56 Western Sahara (n 11) para 107 (‘a legal tie of allegiance . . . between the Sultan [of Morocco] and some, but only some, of the nomadic peoples of the territory’). 57 Western Sahara (n 11) paras 150–2 (‘there did not exist between the territory of Western Sahara and the Mauritanian entity any tie of sovereignty, or of allegiance of tribes, or of “simple inclusion” in the same legal entity . . . [but] the nomadism of the great majority of the peoples of Western Sahara gave rise to certain rights of a legal character between the tribes of the territory and


162

The Development of International Law by the ICJ

The Court moved one step further in the East Timor (Portugal v Australia) case when it declared that ‘Portugal’s assertion that the right of peoples to selfdetermination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable’.58 The Court emphasized that the right of peoples to self-determination was ‘one of the essential principles of contemporary international law’.59 However, in that case, the Court, while noting that for both Portugal and Australia, East Timor (under Indonesian military occupation since the invasion of 1975) constituted a non-self-governing territory and pointing out that the people of East Timor had the right to self-determination, held that the absence of Indonesia from the litigation meant that the Court was unable to exercise its jurisdiction.60 These propositions as to self-determination were reaffirmed by the Court in the Construction of a Wall Advisory Opinion61 and held to apply to the Palestinian people, presumably on the basis of the history of the Palestine mandate and the General Assembly’s resolution recommending the partition of that territory into a Jewish state and an Arab state with only the former having taken place,62 coupled with the range of UN resolutions affirming such a right.63 More recently in the Kosovo case, the Court reaffirmed again its approach in this line of cases.64

6. Uti possidetis Linked with the principle of self-determination in decolonization questions is the doctrine of uti possidetis juris, whereby the frontiers of the new entity are deemed to be those that obtained during the colonial period in the absence of agreement to the those of the neighbouring regions of the Bilad Shinguitti . . . [including] grazing pastures, cultivated lands, and wells or water-holes in both territories . . . [thus] some rights relating to the lands through which they migrated’). 58 East Timor (Portugal v Australia) [1995] ICJ Rep 90, para 29. 59 East Timor (n 58). See also Reference Re Secession of Quebec (1998) 161 DLR (4th) 385, 434–5, where the Supreme Court of Canada, in answer to the question whether there existed in international law a right to self-determination which would give Quebec the right unilaterally to secede, stated that the principle of self-determination ‘has acquired a status beyond “convention” and is considered a general principle of international law’. 60 East Timor (n 58) paras 37–8. The reason related to the principle that the Court is unable to exercise jurisdiction over a state without the consent of that state. The Court took the view that Portugal’s claims against Australia could not be decided without an examination of the position of Indonesia, which had not consented to the jurisdiction of the Court. 61 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, paras 87–8, 118, 122, 149, 155–6. 62 See GA Res 181 (II) (29 November 1947). See generally as to the Palestine question J Crawford, The Creation of States in International Law (Oxford: OUP, 2nd edn 2006) 442 ff; A Shapira and M Tabory (eds), New Political Entities in Public and Private International Law (Dordrecht: Martinus Nijhoff, 1999); V Kattan (ed), The Palestine Question in International Law (British Institute of International and Comparative Law, 2008); S Akram, M Dumper, M Lynk and I Scobbie (eds), International Law and the Israeli-Palestinian Conflict (Abingdon: Routledge, 2011). 63 See eg Wall (n 61) 117–18. 64 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, [2010] ICJ Rep 403, para 79.


The Law of Territory

163

contrary.65 As regards boundaries that were already international boundaries between the colonial and a third power (whether or not colonial), continuation is secured by the rule of state succession. However, where the new boundaries had previously been internal colonial boundaries, their transposition into international boundaries was achieved by virtue of the principle of uti possidetis. This principle originated in Latin America in order to preclude any new claim by the European powers to return to the continent on the basis of terra nullius, with the assertion that the administrative divisions of the Spanish empire in South America were deemed to constitute the boundaries for the newly independent successor states, thus theoretically excluding any gaps in sovereignty which might precipitate hostilities and encourage foreign intervention.66 The principle achieved its modern manifestation initially in the context of the decolonization of Africa. The relevant resolution of the Organization of African Unity in 1964 declared that colonial frontiers existing as at the date of independence constituted a tangible reality and that all member states pledged themselves to respect such borders.67 Practice in Africa has reinforced the approach of emphasizing the territorial integrity of the colonially defined territory—as seen by the widespread disapproval of the attempted unilateral creation of secessionist states, whether in the former Belgian Congo or Nigeria. However, consensual separation is a different matter and the prime examples include Eritrea’s separation from Ethiopia68 and South Sudan’s separation from Sudan.69 The principle was also evident in Asian practice.70 It is against this background of international practice that the ICJ’s jurisprudence needs to be seen. As with respect to self-determination, it may be said to have consolidated and legitimized an international concept of major practical and conceptual relevance. The question of uti possidetis was discussed by a Chamber of the ICJ in Burkina Faso/Mali,71 where it was affirmed that the principle had in fact developed into a general concept of contemporary customary international law and was unaffected by the emergence of the right of peoples to self-determination.72 In the African context particularly, the purpose of the principle was ‘to prevent the 65 See generally MN Shaw, ‘The Heritage of States: The Principle of Uti Possidetis Today’ (1997) 67 BYIL 75; H Ghebrewebet, Identifying Units of Statehood and Determining International Boundaries (Bern: Peter Lang, 2006); M Kohen, Possession contestée et souveraineté (Paris: Presses Universitaires France, 1997). 66 See the Colombia-Venezuela Boundary Dispute (1922) 1 RIAA 223, 228; Beagle Channel (n 28) 81; and El Salvador/Honduras (n 20) para 307. 67 AHG/Res 16(1). See also SC Res 1234 (1999) which refers directly to OAU Resolution 16(1). 68 See SC Res 828 (26 May 1993). 69 See for the Comprehensive Peace Agreement of 2005 and preceding agreements, <http://unmis. unmissions.org/Default.aspx?tabid=515> (accessed 29 December 2012). See also SC Res 1999 (13 July 2011) and UN Doc S/2011/418. 70 See eg Temple of Preah Vihear (n 27) and Rann of Kutch (n 15). 71 Burkina Faso/Mali (n 18). See also Frontier Dispute (Burkina Faso/Niger) Judgment of 16 April 2013 (<http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=bfn&case=149&k=f 9> (accessed 17 May 2013)) para 63. 72 Burkina Faso/Mali (n 18) paras 19–26.


164

The Development of International Law by the ICJ

independence and stability of new states being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power’.73 The application of the principle has the effect of freezing the territorial title existing at the moment of independence to produce what the Chamber described as the ‘photograph of the territory’ at the critical date.74 The Chamber, however, went further than emphasizing the application of the principle to Africa. It declared that the principle applied generally and was logically connected with the phenomenon of independence wherever it occurred in order to protect the independence and stability of new states.75 The ICJ returned to the question in the El Salvador/Honduras case, noting that ‘uti possidetis juris is essentially a retrospective principle, investing as international boundaries administrative limits intended originally for quite other purposes’,76 and again in Nicaragua v Honduras, where it stated further that the principle extended not only to land territory, but also to offshore possessions and maritime spaces.77 It was also noted in the former case that the jus referred not to international law but to the constitutional or administrative law of the pre-independence sovereign.78 Having established the existence and purpose of the principle, the key question is whether this principle goes beyond the purely colonial context to apply to the dissolution or dismemberment of independent states in part or in whole so as to determine the boundaries of the new states. The alternative to such a principle, positing the conversion of internal frontiers to international ones, is to rely on effective control or ethnic identification with all the dangers that these imply. It does, however, seem clear that practice demonstrates that the principle does have a more general application. Such indeed was the tenor of the formulation by the Court in Burkina Faso/Mali, and it was in this sense that the decision was understood (and relied upon) in the work of other institutions called upon to pronounce on boundaries of states emerging outside the colonial context. This may be seen particularly with regard to the former USSR79 and the former Yugoslavia. In the latter case, the Yugoslav Arbitration Commission, established by

73

74 Burkina Faso/Mali (n 18) para 30. Burkina Faso/Mali (n 18) para 20. Burkina Faso/Mali (n 18) para 20. The principle was described as follows: ‘The essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved. Such territorial boundaries might be no more than delimitations between different administrative divisions or colonies all subject to the same sovereign. In that case, the application of the principle of uti possidetis resulted in administrative boundaries being transformed into international frontiers in the full sense of the term’ (para 23). 76 El Salvador/Honduras (n 20) para 43. See also Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) [2007] ICJ Rep 659, para 154. 77 Nicaragua v Honduras (n 76) para 156. See also El Salvador/Honduras (n 20) paras 332–3. 78 El Salvador/Honduras (n 20) para 333. See also Territorial and Maritime Dispute (Nicaragua v Colombia) Judgment of 19 November 2012, (<http://www.icj-cij.org/docket/files/124/17164.pdf> (accessed 1 May 2013)) para 64. 79 See eg R Yakemtchouk, ‘Les conflits de territoires and de frontières dans les états de l’ex-URSS’ (1993) 39 AFDI 401. See also, with regard to the application of uti possidetis to the dissolution of the Czech and Slovak Federal Republic, J Malenovsky, ‘Problèmes juridiques liés à la partition de la tchécoslovaquie’ (1993) 39 AFDI 328. 75


The Law of Territory

165

the European Community and accepted by the states of the former Yugoslavia, made several relevant comments. In Opinion No 2, the Arbitration Commission declared that ‘whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise’.80 In Opinion No 3, the Arbitration Commission emphasized that, except where otherwise agreed, the former boundaries (and here the Commission was dealing specifically with the internal boundaries between Serbia and Croatia and Serbia and Bosnia and Herzegovina) became frontiers protected by international law. This conclusion, it was stated, derived from the principle of respect for the territorial status quo and from the principle of uti possidetis. The Court’s formulation in Burkina Faso/Mali was specifically recalled.81 It may also be noted that the Under-Secretary of State of the British Foreign and Commonwealth Office stated in January 1992 that ‘the borders of Croatia will become the frontiers of independent Croatia, so there is no doubt about that particular issue. That has been agreed amongst the Twelve, that will be our attitude towards those borders. They will just be changed from being republican borders to international frontiers.’82 It is thus clear that, at the very least, modern international law as shaped by the ICJ’s jurisprudence recognizes a presumption that, in the absence of evidence to the contrary, internally defined units within a pre-existing sovereign state will come to independence within the spatial framework of that territorially defined unit.83 Of course, the doctrine depends upon the line in question being sufficiently clear prior to its application and the territory in question belonging to the pre-independent unit.84 The political reasons for this derive from the need to mitigate as far as possible the resort to violence as the way to carve out boundaries in times of fundamental change. The legal reasons relate to the need for respect for stability of territorial arrangements as they move from pre-independence to post-independence structure. The ICJ, for example, referred particularly to ‘the permanence and stability of the land frontier’ in the Tunisia/Libya Continental Shelf case85 and to the need for ‘stability and finality’ in the Temple of Preah Vihear case.86 In the latter case, the Court emphasized that such stability and finality would be impossible if the established boundary line could be ‘at any moment, and on the basis of a continuously available process, be called in question . . . Such a process could continue 80 92 ILR 168. See also A Pellet, ‘Note sur la Commission d’Arbitrage de la Conférence Européenne pour la Paix en Yugoslavie’ (1991) 37 AFDI 329; ‘Activité de la Commission d’Arbitrage de la Conférence Européenne pour la Paix en Yugoslavie’, AFDI, 1992, 220. 81 92 ILR 171. 82 See ‘United Kingdom Materials on International Law’ (1992) 63 BYIL 719. 83 See eg MN Shaw, ‘Peoples, Territorialism and Boundaries’ (1997) 3 EJIL 477, 504, but cf S Ratner, ‘Drawing a Better Line: Uti Possidetis and the Borders of New States’ (1996) 90 AJIL 590, 613 ff; M Craven, ‘The European Community Arbitration Commission on Yugoslavia’ (1995) 65 BYIL 333, 385 ff. 84 See eg Nicaragua v Colombia (n 78) para 65. 85 [1982] ICJ Rep 18, 66. See also Grisbadarna (n 30) 130. 86 Temple of Preah Vihear (n 27) 33.


166

The Development of International Law by the ICJ

indefinitely, and finality would never be reached . . . Such a frontier, far from being stable, would be completely precarious.’87 In the Libya/Chad case, the Court underlined that the ‘fixing of a frontier depends on the will of the sovereign States directly concerned’88 and further noted: ‘Once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasized by the Court.’89 Such considerations are not limited to the African Continent.

7. Title and boundary treaties In discussing the issue of territorial acquisition, special reference must be made to boundary treaties, whereby either additional territory is acquired or lost or uncertain boundaries are clarified by agreement between the states concerned. Boundary treaties as such constitute a root of title in themselves.90 As such they affect the critical date, for such an agreement between the relevant parties after independence affecting the territory in dispute will shift the pertinent date of crystallization of territorial rights.91 It is accepted that boundary treaties constitute a special kind of treaty in that they establish an objective territorial regime valid erga omnes.92 As the ICJ has emphasized, such a regime will not only create rights binding also upon third states, but will exist outside of the particular boundary treaty and thus will continue even if the treaty in question itself ceases to apply.93 The reason for this exceptional approach is to be found in the need for the stability of boundaries.94 Further, the establishment or confirmation of a particular boundary line by way of referring in a treaty to an earlier document (which may or may not be binding of itself ) laying down a line is also possible and as such invests the line in question with undoubted validity.95 Indeed, this earlier document may also be a map upon which a line has been drawn. This being so, many boundary disputes in fact revolve around the question of treaty interpretation. It is accepted by the Court that a treaty should be interpreted in the light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969,96 ‘in good faith, in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose’.97 Essentially the aim is to find the ‘common will’ of the parties, a concept which

87 Temple of Preah Vihear (n 27) 34. See also Aegean Sea Continental Shelf (n 36) para 85; the Rann of Kutch case (n 15) 520; and the Beagle Channel case (n 28). 88 Libya/Chad (n 28) para 45. 89 Libya/Chad (n 28) para 72. 90 See 2. 91 See El Salvador/Honduras (n 20) para 67. 92 See Eritrea/Yemen (n 15) para 153. 93 See Libya/Chad (n 28) para 73. See also Territorial and Maritime Dispute (Nicaragua v Colombia) (Preliminary Objections) [2007] ICJ Rep 832, 861; Costa Rica v Nicaragua (n 9) paras 64–6. 94 Libya/Chad (n 28) para 72; Temple of Preah Vihear (n 27) 34. 95 See Libya/Chad (n 28) para 45. See also Cameroon v Nigeria (n 23) para 50. 96 22 May 1969, 1155 UNTS 331. 97 Libya/Chad (n 28) para 41.


The Law of Territory

167

includes consideration of the subsequent conduct of the parties.98 Since many of the boundary treaties that need to be interpreted long pre-date the coming into force of the Vienna Convention,99 the problem of the applicability of its provisions has arisen. Courts have taken the view that the Convention in this respect at least represents customary international law, thus apparently obviating the problem.100 More generally, the difficulty in seeking to interpret both general concepts and geographical locations used in early treaties in the light of modern scientific knowledge has posed difficulties. In the Botswana/Namibia case, the Court, faced with the problem of identifying the ‘main channel’ of the River Chobe in the light of an 1890 treaty, emphasized that ‘the present-day state of scientific knowledge’ could be used to illuminate terms of that treaty.101 Judge Higgins in her Declaration, however, cautioned that the task of the Court was to ‘decide what general idea the parties had in mind, and then make reality of that general idea through the use of contemporary knowledge’ rather than decide in abstracto ‘by a mechanistic appreciation of relevant indicia’.102 In line with this, in the Cameroon v Nigeria (Equatorial Guinea Intervening) case, the Court, in seeking to determine the location of the mouth of the River Ebeji, emphasized that it ‘must seek to ascertain the intention of the parties at the time’.103 This principle of ‘contemporaneity’ in turn seems to have influenced the approach of recent arbitrations.104 In interpreting a boundary treaty, particularly in seeking to resolve ambiguities, the subsequent practice of the parties will be relevant. Even where such subsequent practice cannot in the circumstances constitute an authoritative interpretation of the treaty, it may be deemed to be ‘useful’ in the process of specifying the frontier in question.105 However, where the boundary line as specified in the pertinent instrument is clear, it cannot be changed by a court in the process of interpreting delimitation provisions.106

98 See the Argentina/Chile Frontier Award (La Palena) 38 ILR 10, 89 and the Ethiopia/Eritrea case (n 34). 99 See Art 4 of the Convention providing that the Convention applies only to treaties concluded after the coming into force of the Convention itself (27 January 1980). 100 See eg Libya/Chad (n 28) para 41; the Beagle Channel case (n 28) 84; and Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep 1045, para 18. But cf the Separate Opinion of Judge Oda, in the same case, at 1118. See also Greig (n 31). 101 Botswana/Namibia (n 100) para 20. See also the Argentina/Chile Award (La Laguna del Desierto) 113 ILR 1, 76. 102 Botswana/Namibia (n 100) 1114. 103 Cameroon v Nigeria (n 23) para 59. 104 See notably the Decision of 13 April 2002 of the Ethiopia/Eritrea Boundary Commission (n 34), 21 ff and 61 ff, in which the Boundary Commission held that a treaty should be interpreted by reference to the circumstances prevailing when the treaty was concluded. In particular, the determination of a geographical name (whether of a place or a river) depended upon the contemporary understanding of the location to which that name related at the time of the treaty. However, in seeking to understand what that was, reference to subsequent practice and to the objects of the treaty was often required. 105 Cameroon v Nigeria (n 23) para 57. 106 Cameroon v Nigeria (n 23) para 107.


168

The Development of International Law by the ICJ

8. Relevance of the exercise of effective authority (effectivités) In the absence of a definitive ‘legal title’ such as a boundary treaty or judicial boundary award, the exercise of effective authority will often constitute the crucial element. As Huber argued, ‘the actual continuous and peaceful display of state functions is in case of dispute the sound and natural criterion of territorial sovereignty’.107 The ICJ’s jurisprudence suggests that such activity in establishing a claim to territory must be performed by the state in the exercise of sovereign powers (à titre de souverain)108 or by individuals whose actions are subsequently ratified by their state,109 or by corporations or companies permitted by the state to engage in such operations and thus performed on behalf of the sovereign.110 Otherwise, any acts undertaken are of no legal consequence.111 The question was raised before the Court in the Minquiers and Ecrehos case, in terms other than ‘title’ and ‘effectivités’, though in reality covering the same issues. There the Court was faced with arguments by both the United Kingdom and France as to legal title of the islets and rocks of the Ecrehos and Minquiers groups from 1066. The Court found that neither state had demonstrated such legal title and proceeded to note: ‘What is of decisive importance, in the opinion of the Court, is not indirect presumptions deduced from events in the Middle Ages, but the evidence which relates directly to the possession of the Ecrehos and Minquiers groups.’112 This formulation indeed prefigures the approach later adopted by the Court in the Burkino Faso/Mali case. However, international jurisprudence also clarifies that, although it must be effective, control does not necessarily have to amount to possession and settlement of all of the territory claimed. Precisely what acts of sovereignty are necessary to found title will depend in each instance upon all the relevant circumstances of the case, including the nature of the territory involved, the amount of opposition (if any) that such acts on the part of the claimant state have aroused, and international reaction.113 Accordingly, many titles will be deemed to exist not as absolute but as relative concepts. The state succeeding in its claim for sovereignty over terra nullius over the claims of other states will in most cases have proved not an absolute title, but one relatively better than that maintained by competing states and one that may take 107 Island of Palmas (n 3) 840. The Tribunal in Eritrea/Yemen noted that ‘[t]he modern international law of the acquisition (or attribution) of territory generally requires that there be: an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis’ (Eritrea/Yemen (n 15) 69). 108 That is, those made as a ‘public claim of right or assertion of sovereignty . . . as well as legislative acts’, Eritrea/Yemen (n 15) 69. See also Minquiers and Ecrehos (n 33) 65, 69 and 71; Malaysia/Singapore (n 7) para 121. Such acts need to relate clearly to the territory in question: Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) [2002] ICJ Rep 625, para 136. 109 Indonesia/Malaysia (n 108) paras 140, 142. 110 Botswana/Namibia (n 100) para 98. 111 See Judge McNair in Anglo-Norwegian Fisheries (UK v Norway) [1951] ICJ Rep 116, 184. 112 Minquiers and Ecrehos (n 33) 57. 113 See eg Nicaragua v Colombia (n 78) para 80.


The Law of Territory

169

into account issues such as geography and international responses.114 The Court noted in the Eastern Greenland case that: [i]t is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other state could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.115

The Court returned to this point in Malaysia/Singapore, where it was noted that ‘international law is satisfied with varying degrees in the display of State authority, depending on the specific circumstances of each case’.116 This is, of course, contingent upon the existence, nature and strength of any competing claims. The more serious such a rival claim, the more extensive the state practice would need to be in order to establish title.117 However, it is important that the state activities in question relate to the territory in question and are not too general or non-specific. The Court made this point clearly in Indonesia/Malaysia, noting: it can only consider those acts as constituting a relevant display of authority which leave no doubt as to their specific reference to the islands in dispute as such. Regulations or administrative acts of a general nature can therefore be taken as effectivités with regard to Ligitan and Sipadan only if it is clear from their terms or their effects that they pertained to these two islands.118

As to the meaning of effectivités, the Court declared in Nicaragua v Honduras that: [a] sovereign title may be inferred from the effective exercise of powers appertaining to the authority of the State over a given territory. To sustain a claim of sovereignty on that basis, a number of conditions must be proven conclusively. As described by the Permanent Court of International Justice, ‘a claim to sovereignty based not upon some particular act or title such as a treaty of accession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority’ (Legal Status of Eastern Greenland, Judgment, 1933, PCIJ, Series A/B, No 53, pp 45–46).119

The relationship between title and effectivités was authoritatively addressed by the Court in its influential decision in Burkina Faso/Mali. The Court declared that where there is a valid legal title, this will have pre-eminence and effectivités may play 114 See Island of Palmas (n 3) 840. See also Eastern Greenland (n 30) 46; Affaire de l’île de Clipperton (Mexico v France) (1931) 2 RIAA 1105; Minquiers and Ecrehos (n 33); and Nicaragua v Honduras (n 76) paras 172–4. 115 Eastern Greenland (n 30) 45–6. See also Qatar v Bahrain (Merits) (n 12) 197–8; and Indonesia/ Malaysia (n 108) para 134. Note also Malaysia/Singapore (n 7) paras 60–9. 116 Malaysia/Singapore (n 7) para 67. 117 Malaysia/Singapore (n 7) paras 67–8. 118 Indonesia/Malaysia (n 108) para 136. See also Nicaragua v Honduras (n 76) paras 174–5. 119 Nicaragua v Honduras (n 76) para 172. See also Nicaragua v Colombia (n 78) para 82 as to examples of different categories of effectivités, ranging from public administration and legislation to regulation of economic activities, public works, law enforcement measures, naval visits, search and rescue operations, and consular representation.


170

The Development of International Law by the ICJ

a confirmatory role, but where the effectivités are in contradiction to the title, the latter will have pre-eminence. In the absence of any legal title, effectivités must invariably be taken into consideration, while where the legal title is not capable of exactly defining the relevant territorial limits, effectivités then play an essential role in showing how the title is interpreted in practice.120 The Court reaffirmed this in El Salvador/Honduras (Nicaragua Intervening) and noted that these principles applied to both colonial and postcolonial effectivités.121 The point was discussed further in Cameroon v Nigeria in the context of Nigerian activities in the area around Lake Chad that were in the nature of sovereign efforts, such as the organization of public health and education facilities, policing, and the administration of justice. However, the Court accepted that Cameroon possessed pre-existing legal title to the area in question and concluded that, ‘where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title’.122 In Indonesia/Malaysia, the Court turned to a consideration of effectivités as an independent and separate issue only after deciding that neither of the parties had a treaty-based title to the territories in question.123 The primacy of legal title over effective possession as a basis of sovereignty was again underlined by the Court in Benin/Niger,124 while adding that in the event that effectivités do not co-exist with any legal title, the former must be taken into consideration.125 It was concluded clearly and persuasively, and in terms rather stronger than those used in Cameroon v Nigeria, that ‘effectivités can only be of interest in a case in order to complete or make good doubtful or absent legal titles, but can never prevail over titles with which they are at variance’.126 The fact that state practice in the context of title to territory may be critical was emphasized by the Court in Malaysia/Singapore and coupled with the consequential need to ensure that such conduct, or effectivités, existed. It was underlined that: any passing of sovereignty over territory on the basis of the conduct of the Parties . . . must be manifested clearly and without any doubt by that conduct and the relevant facts. That is especially so if what may be involved, in the case of one of the Parties, is in effect the abandonment of sovereignty over part of its territory.127

Having said that, the Court noted an exception and appeared in practice to interpret it liberally. It noted that agreement to pass sovereignty may occur not only by treaty, but also by way of tacit agreement, arising from the conduct of the relevant parties. International law did not impose any particular form; instead, emphasis was placed upon the intentions of the parties.128 This was then linked to 120 122 123 124 125 126 128

121 El Salvador/Honduras (n 20) para 61. Burkina Faso/Mali (n 18) para 63. Cameroon v Nigeria (n 23) para 68 (citing Burkina Faso/Mali (n 23) para 75). Indonesia/Malaysia (n 108) para 127. Frontier Dispute (Benin/Niger) [2005] ICJ Rep 90, para 47. Frontier Dispute (Benin/Niger) (n 124) paras 75–6. See also Libya/Chad (n 28) para 76. 127 Malaysia/Singapore (n 7) para 122. Frontier Dispute (Benin/Niger) (n 124) para 141. Malaysia/Singapore (n 7) para 120.


The Law of Territory

171

acquiescence, which had been defined by the Court in the Gulf of Maine case as ‘equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent’.129 The Court noted that there may be circumstances where sovereignty may pass where the title holder does not respond to asserted sovereign acts by another state.130 This was deemed to have occurred with regard to Pedra Branca/Pulau Batu Puteh, where title was deemed to have passed from Malaysia to Singapore (or their predecessors in title) on the basis of acts of a sovereign nature coupled with the failure to respond.131 However, it is far from clear in law whether this passing of sovereignty took place by way of acquiescence or by way of tacit agreement. They are not the same and any easing of the principal rule requiring the clear consent of the party passing title to territory is to be approached with some caution.132 Indeed, the Court had in Cameroon v Nigeria adopted a clear line as to the impossibility of acquiring title to territory from the recognized sovereign without consent or clearly established acquiescence.133 The problem with Malaysia/Singapore is that the Court characterized the relationship between sovereign acts and acquiescence/tacit agreement as one of ‘convergent evolution of the positions of the Parties regarding title’134 and could be said to have been rather less rigorous than demanded by its own requirement that any passing of sovereignty on the basis of conduct had to be ‘manifested clearly and without any doubt’, especially when abandonment of sovereignty was essentially argued.135 The facts, it may be suggested, do not adequately support the invocation of the two doctrines. Of course, not all state practice may found title and not all circumstances will be capable of generating sovereignty. The Court has decided that ‘historical consolidation’, whatever its status as a doctrine, cannot prevail over an established title,136 while geographic proximity as such is an insufficient basis for sovereignty.137 To conclude this section, it may be summarized that examples of state practice may confirm or complete—but not contradict—legal title established, for example, by boundary treaties. In the absence of any clear legal title to an area, state practice comes into its own as a law-establishing mechanism. But its importance is always contextual in that it relates to the nature of the territory and the nature of competing state claims.138 Consent to the passing of title cannot be presumed; it must be established, save in the light of very clear evidence of acquiescence, and this should not be accepted lightly.

129 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/USA) [1984] ICJ Rep 246, para 130. 130 Malaysia/Singapore (n 7) para 121. 131 Malaysia/Singapore (n 7) 96. 132 See the Joint Dissenting Opinion of Judges Simma and Abraham, Malaysia/Singapore (n 7) 117 and 119–20. 133 Cameroon v Nigeria (n 23) paras 62 ff. 134 Malaysia/Singapore (n 7) paras 274–6. 135 Malaysia/Singapore (n 7) para 122. 136 Cameroon v Nigeria (n 23) para 65. 137 See eg Nicaragua v Honduras (n 76) para 161. 138 See also the general statement of principle in Eritrea/Ethiopia (n 34) 42.


172

The Development of International Law by the ICJ

9. Territorial integrity and secession in the post-independence situation While the debate about effectivités and title may appear to involve a clash between factual and normative positions, the ICJ has also been faced with conflicts between competing legal concepts relating to territory. The most obvious example concerns the relationship between territorial integrity and claims to secession based on selfdetermination. This is one of the major debates of the law relating to territory, and has given rise to controversy and conflict. As a general matter, it seems fair to say that the international legal position has been shaped by international practice, and by the United Nations in particular, rather than the Court’s jurisprudence. International practice suggests that self-determination cannot be used to further larger territorial claims in defiance of internationally accepted boundaries of sovereign states.139 While clearly established as a legal rule in terms of the rights of peoples under colonial domination140 to choose their own political status, selfdetermination clearly does not confer the right to secede upon identifiable groups

139 The legal position was summed up by eg the Canadian Supreme Court in the Quebec case, in which it was noted that ‘international law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states’, and that the right to unilateral secession ‘arises only in the most extreme of cases and, even then, under carefully defined circumstances’ ((n 59) 436 and 438). See further J Crawford, ‘State Practice and International Law in Relation to Secession’ (1998) 69 BYIL 85; and A Bayefsky, Self-Determination in International Law: Quebec and Lessons Learned (Leiden: Brill, 2000). 140 It is sometimes argued that self-determination implies a right to independent statehood also in cases of foreign occupation: see eg the view of the Canadian Supreme Court in the Quebec case (n 59); and also GA Res 55/2 (8 September 2000) (‘the UN Millennium Declaration’), para 4 (‘the right to self-determination of peoples which remain under colonial domination and foreign occupation’), and Art 1(4) of the 1977 Additional Protocol I to the 1949 Geneva Convention (‘The situations referred to in the preceding paragraph [ie international armed conflicts] include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’). However, this approach is controversial since the fundamental rule where one state occupies the territory of another state is that the latter retains sovereignty even if it loses possession. Therefore, to recognize that the population of the area so occupied may have the choice to leave its sovereign state would operate so as to undermine the international legal rules on territorial sovereignty. If, however, the right to self-determination is defined in foreign occupation cases to mean the right of the people to be free of such occupation within the framework of the territorial sovereignty of the dispossessed sovereign and within the context of the application of international humanitarian law, which accepts belligerent occupation as a legitimate possessory status pending peace, then this is far less controversial. Practice supports this approach: see eg the cases of Afghanistan after the Soviet invasion, Cambodia following the Vietnamese invasion, and the Baltic states prior to the demise of the Soviet Union. See A Cassese, Self-Determination of Peoples (Cambridge: CUP, 1995) 90 ff. See also Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168, paras 25 (DRC’s first submission) and 28, where the issue was raised in the context of the violation of the principle of nonintervention, and paras 25 (DRC’s third final submission) and 245, where the issue was raised in the context of the illegal exploitation of natural resources. The Court made no specific finding with regard to self-determination.


The Law of Territory

173

within already independent states.141 As a rule, it needs to be congruent with the foundational principles of territorial sovereignty and territorial integrity. The only arguable exception to this rule that the right to external self-determination applies only to colonial situations might be where the group in question is subject to ‘extreme and unremitting persecution’ coupled with the ‘lack of any reasonable prospect for reasonable challenge’,142 but even this is controversial, not least in view of definitional difficulties.143 The Court has not had occasion directly to shape international law on this issue. However, its jurisprudence affirms that external self-determination fits in with the concept of territorial integrity,144 as it cannot apply once a colony or trust territory attains sovereignty and independence—except, arguably, in extreme circumstances. This should, however, not be taken to mean that self-determination claims in the widest sense are completely irrelevant to disputes about territory. The Court’s case law, for example, suggests that the interests of the local population ought to be taken into account where the determination of the boundary has resulted in a shift in the line, at least in the view of one of the parties.145 To be clear, this operates at the level of human rights within the territory of the state and not as a mechanism to override a state’s legal title to territory. The prevalent construction of self-determination as not involving a right of secession reflects the fundamental importance of territorial integrity as a key element of the overarching concept of the sovereignty of states. Indeed, the ICJ has recently emphasized that ‘the principle of territorial integrity is an important part of the international legal order and is enshrined in the Charter of the United Nations’,146 thus consolidating the international legal position. Interestingly, in the same proceedings, the Court endorsed the view that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between States’.147 141

See the Quebec case (n 59) 436. Cassese (n 140) 120. See also T Musgrave, Self-Determination and National Minorities (Oxford: OUP, 1997) 188 ff; J Castellino, International Law and Self-Determination (Dordrecht: Martinus Nijhoff, 2000); K Knop, Diversity and Self-Determination in International Law (Cambridge: CUP, 2002) 65 ff, 470–3. See further MG Kohen (ed), Secession: International Law Perspectives (Cambridge: CUP, 2006). 143 The Court in the Quebec case, citing Cassese, Self-Determination (n 140), suggested that the right to external self-determination (ie secession) might apply to cases of foreign occupation and as a last resort where a people’s right to internal self-determination (ie right to public participation, etc) was blocked: (n 59) 438 ff. 144 This analysis is supported by eg Burkina Faso/Mali (n 18). 145 See, with regard to the preservation of acquired rights, El Salvador/Honduras (n 20) para 66. See also Cameroon v Nigeria (n 23) paras 120–4. In particular, the Court stated in relation to the Bakassi peninsula and Lake Chad regions, which contain Nigerian populations, that ‘the implementation of the present judgment will afford the parties a beneficial opportunity to co-operate in the interests of the population concerned, in order notably to enable it to continue to have access to educational and health services comparable to those it currently enjoys’ (para 316). The Court also referred to the commitment of the Cameroon Agent made during the Oral Pleadings to protect Nigerians living in the areas recognized as belonging to Cameroon (para 317 and para 325 V(C) of the dispositif ). See also MN Shaw, ‘Self-Determination, Human Rights and the Attribution of Territory’ in U Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford: OUP, 2011) 590. 146 Kosovo (n 64) para 80. 147 Kosovo (n 64) para 80. 142


174

The Development of International Law by the ICJ

However, while it is beyond dispute that territorial integrity applies to inter-state relations, it is much less clear that this is the end of the matter. In this respect, recent practice suggests that an intermediate position is now becoming apparent, whereby the international community may legitimately call for entities within a sovereign state to seek a solution to any relevant dispute within the confines of the recognized territory of the state in question. Thus, by necessary implication (and sometimes indeed expressly), the international community appears to suggest that in certain authorized situations the principle of territorial integrity may have an application within independent states facing internal conflict and separatist claims from non-state actors. This new trend is illustrated by Security Council resolutions relating to Somalia, for example, which—notwithstanding secessionist pressures from ‘Somaliland’ and ‘Puntland’, Ethiopian military intervention, and continuing internal armed conflict leading to the absence of an internationally recognized government—have emphasized ‘the importance of the sovereignty, territorial integrity, political independence and unity of Somalia’.148 Similarly, the UN has been meticulous and consistent in reaffirming its ‘commitment to respect the sovereignty, territorial integrity and political independence’ of the Democratic Republic of the Congo;149 and, with respect to the situation in Darfur, has urged ‘all parties’ to the conflict not to act in a way that might impede the implementation of peace plans that were premised on the ‘sovereignty, unity, territorial integrity, and independence of Sudan’.150 These examples have been indicative only.151 While it is not suggested that the concept of territorial integrity has now been accepted as precluding secession, there is sufficient practice to demonstrate that the international community has not accepted that territorial integrity is necessarily a matter limited to inter-state relations; rather, it may reach down into particular states in conflict to require a solution that preserves the existing territorial dimensions of that state. Enough has been examined, albeit briefly, to suggest that the International Court’s formulation in the Kosovo case was too prescriptive.

10. A role for human rights? In section 9 reference was made, albeit briefly, to the interests of the local population, which in some settings may become a relevant factor in the determination of disputed frontier lines. More generally, the Court’s recent jurisprudence suggests that the traditional emphasis on territorial title can on occasion be mitigated by 148 See eg SC Res 1766 (23 July 2007) and 1772 (20 August 2007), as well as 1964 (22 December 2010), 1910 (28 January 2010), 1972 (17 March 2011), 2010 (30 September 2011), 2036 (22 February 2012), and 2067 (18 September 2012). 149 See eg SC Res 1756 (15 May 2007), 1794 (21 December 2007), 1804 (13 March 2008), 1952 (29 November 2010), 1991 (28 June 2011), 2021 (29 November 2011), and 2053 (27 June 2012); as well as GA Res 60/170 (9 March 2006). 150 See eg SC Res 1556 (30 July 2004) and 1769 (31 July 2007), as well as (with respect to Abyei) 1784 (31 October 2007). 151 Note also Resolution 1923 (25 May 2010) by which the Security Council reaffirmed its ‘commitment to the sovereignty, unity, territorial integrity and political independence of Chad and the Central African Republic, and to the cause of peace in the region’.


The Law of Territory

175

concerns for affected populations where they have found themselves on the ‘wrong’ side of the frontier, ie not the one they thought they were on. This might be seen as part of the increased awareness of human rights issues, including self-determination in the widest sense, wherein the people in question is seen as possessing certain rights in the public participation context but within the territory of the sovereign state concerned, as well as other human rights. The Court has adopted this approach in the light both of interpretation of relevant instruments and of oral statements made in the case concerned. This may be seen particularly in the Cameroon v Nigeria case. In relation to two particular villages (Turu and Kotcha), the Court found that a process of spreading from one state to another had or seemed to have taken place. In the former case, the Cameroonian village of Turu appeared to have spread across the clearly laid down boundary line, while in the latter case, the Nigerian village of Kotcha had spread into Cameroonian territory. The Court was clear in stating that it could not modify an established boundary; rather ‘it would be up to the Parties to find a solution to any resultant problems with a view to ensuring that the rights and interests of the local population are respected’.152 This strongly suggests that in such situations obligations may fall upon the titleholder to treat the affected population in a manner that pays particular attention to the ‘rights and interests’ of such inhabitants. Quite what ‘rights and interests’ is intended to mean is not clear, but it must include equal treatment and non-discrimination, as well as sensitivity to and respect for human rights. In addition, in relation to the Bakassi peninsula and Lake Chad regions which contain Nigerian populations, but which were deemed to fall under Cameroonian sovereignty, the Court stated that ‘the implementation of the present judgment will afford the parties a beneficial opportunity to co-operate in the interests of the population concerned, in order notably to enable it to continue to have access to educational and health services comparable to those it currently enjoys’.153 This concern was elevated by the reference in the Judgment to what was stated to be the ‘commitment’ of the Cameroon Agent made during the Oral Pleadings to protect Nigerians living in the areas recognized as belonging to Cameroon,154 and rendered more significant by the inclusion of the reference to this ‘commitment’ in paragraph V (C) of the dispositif itself.155 In the Botswana/Namibia case, the Court noted, as a matter of interpretation of a relevant instrument (the Kasane Communiqué) and in the light of comments made by Botswana in oral pleadings, that there should be unimpeded access for the craft of the nationals and flags of the parties in the two channels of the river around Kasikili/Sedudu Island, irrespective of sovereignty, on an equal treatment basis.156 One can also see the same concern with the rights and interests of affected persons in the treatment by the Court in Costa Rica v Nicaragua of fishing rights in the San Juan River for subsistence purposes. These were declared to constitute a customary 152 153 154 156

Cameroon v Nigeria (n 23) para 103; and further para 123. Cameroon v Nigeria (n 23) para 316. 155 Cameroon v Nigeria (n 23) para 325 V(C). Cameroon v Nigeria (n 23) para 317. Botswana/Namibia (n 100) paras 102–3.


176

The Development of International Law by the ICJ

right on the basis of long practice and the absence of protest, but in circumstances where it was difficult to prove any binding commitment.157 Nevertheless, it must be emphasized that such concern for affected people is always within the context of title. It serves to mitigate some of the consequences of a finding of sovereignty—not to overturn, invalidate, or modify it.

11. Conclusion The role of the ICJ in relation to territory has clearly been critical. As states have regularly submitted boundary and territorial disputes to it, the Court has had ample opportunity, not only to decide cases, but to develop principles of law in this area. It is notable that the Court’s approach has evolved in tackling critical and difficult parts of the law, such influence radiating beyond the immediate parties to the general international community. As seen above, the Court has clarified the principles surrounding the concept of territorial sovereignty, formulated an approach to pre-colonial and colonial title that has sought to maintain territorial stability, and set the stage for the rise of the legal right to self-determination, while demarcating some of its parameters. It has analysed the relationship between legal title, as exemplified in boundary treaties, and state practice (or effectivités) in a persuasive manner, even if some rough edges are still apparent. It has sought to sustain an effective framework buttressed upon the principle of stability of territorial arrangements as far as possible. The Court has not been unaware of the impact of its work upon the network of relations between states in this most sensitive of areas. The relationship between the Court and other processes and agencies functioning in the field of international law has been a constant undercurrent of the development of the law relating to territory. ICJ decisions have been especially influential where they have interpreted and applied, consolidated and refined positions developed in UN practice, or in treaty law. The recognition of the principle of self-determination provides an example in point: the Court did not create the right of self-determination; rather it lent its stamp of authority to its establishment and helped consolidate and delineate it. The same may be said of the concepts of territorial sovereignty and territorial integrity. Notwithstanding occasional controversies, the Court’s jurisprudence has contributed in no small measure to the successful management of territorial and boundary disputes. Its jurisprudence has helped render the law of territory more predictable, and through it, the Court has come to be accepted as an authoritative guide. This role shows no sign of waning. Nor should it.

157

Costa Rica v Nicaragua (n 9) paras 140–4.


9 The Development of the Law of the Sea by the International Court of Justice Vaughan Lowe QC and Antonios Tzanakopoulos

1. Introduction The very first cases to be decided by both the International Court of Justice (ICJ or ‘the Court’) and its predecessor, the Permanent Court of International Justice (PCIJ), concerned ships and their rights of passage, whether through a strait or through a canal.1 Both cases are loci classici, and not merely because they were the first to be decided by the relevant permanent international forum. The world’s seas, covering most of the planet and being a major site of interaction between states, are certain not only to facilitate communication and trade but also to give rise to international friction. The fact, then, that cases on the law of the sea will often fall to be decided by international courts and tribunals should come as no surprise. The ICJ is the principal judicial organ of the United Nations, and frequently claimed to be the ‘World Court’; and its impact on the development of such an important area of international law as the law of the sea is also frequently presumed to be significant2—but how significant is it really? Much has been written about the role of the ICJ in ‘developing’ various areas of public international law, about the vires of it doing so and the limits to its developmental capacity, about whether it has done so more or less successfully, and even about the possibility that the ICJ may be an institution that in some circumstances effectively blocks the development of the law, at least for a period of time. The purpose of this chapter is to survey the contribution made to the development of the law of the sea by the ICJ. But before launching into that discussion, it is necessary to set out what we understand by ‘the development of the law by the International Court of Justice’. Section 2 of this chapter deals briefly with that 1 Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4 and SS ‘Wimbledon’ (UK, France, Italy, Japan, Poland [Intervening] v Germany) (1923) PCIJ Ser A No 1, respectively. 2 See eg SM Schwebel, ‘Fifty Years of the World Court: A Critical Appraisal’ (1996) 90 ASIL Proceedings 339, 345: ‘That the Court has made significant contributions to the development of international law—the law of the sea and the law of the United Nations in particular—is unquestioned ’ (emphasis added).


178

The Development of International Law by the ICJ

understanding. Section 3 surveys the development of the law of the sea and the other actors involved in that development—given that the ICJ neither developed nor was expected to have developed that (or any other) area of the law singlehandedly. Section 4 discusses the different kinds and degrees of influence of all of these actors or ‘agents of development’ of the law. The fifth and final substantive section focuses on the ICJ’s specific contributions to the development of the law of the sea, seeking to evaluate them in light of the discussion in sections 2–4. The outcome of our evaluation is perhaps rather unspectacular: the Court’s influence on the development of the law of the sea has not been great, and seems to be diminishing. And yet there may be more than one kind of influence on the development of the law; and it is arguable that the Court’s importance, at least in the area of the law of the sea, may lie not so much in its influence as in its authority.

2. The development of international law by the ICJ The function of the ICJ is to decide in accordance with international law such cases as are submitted to it.3 The Court’s Statute limits the binding force of each decision to its effects as between the parties and in respect of the particular case;4 but in the process of making its decisions the Court will also necessarily ‘confirm’ or ‘develop’ the rules of international law. This is true at the micro-level of determining that a particular set of facts calls for the application of a certain rule of law, thus ‘making law for the specific case’ by concretizing the general rule.5 But the Court’s influence may be significant also at the macro-level, such as when it decides that a particular rule actually exists as part of the corpus of customary international law, or when it interprets a rule and thus defines its scope and the contours of its application. Such findings are bound to have repercussions and to influence the conduct and the perception not only of the parties but also of other states, and in a variety of ways.6 The dual function of the ICJ is, then, to decide disputes and to establish rules;7 but not always in equal measure. The focus in any particular case may be on one or the other aspect of the Court’s function, depending on the case and the way in which the parties pursue it. In some instances the parties may be more interested in having the Court elaborate the relevant rules, with a view to applying them to their

3

4 Art 59 ICJ Statute. Art 38(1) ICJ Statute. This involves much more than merely ‘finding’ or ‘declaring’ some objectively existing law: see H Kelsen, Reine Rechtslehre—Mit einem Anhang: Das Problem der Gerechtigkeit (Vienna: Franz Deuticke, 2nd rev edn 1960) 242 ff, where Kelsen notes the ‘constitutive character of judicial decisions’ in general. 6 See A Pellet, ‘Article 38’ in A Zimmermann, C Tomuschat, K Oellers-Frahm and CJ Tams (eds), The Statute of the International Court of Justice—A Commentary (Oxford: OUP, 2nd edn 2012) 731, 864 (para 327). For the ‘conflicting assumptions’ regarding judicial law-making, in particular with respect to the ICJ, see CJ Tams and A Tzanakopoulos, ‘Barcelona Traction at 40: The ICJ as an Agent of Legal Development’ (2010) 23 Leiden JIL 781, 782–5 with further references. 7 Cf GG Fitzmaurice, ‘Hersch Lauterpacht—The Scholar as Judge (Part I)’ (1961) 37 BYIL 1, 14–15. 5


The Law of the Sea

179

dispute themselves.8 In other cases the parties may be more focused on the actual result than on the way (and on the rules on the basis of which) it is achieved. And at other times they may not be interested in either—they may wish merely to get the matter settled, for example in order to remove an obstacle in their bilateral relationships with minimal political fall-out.9 The role of the ICJ is reactive. The parties decide whether to submit a dispute to it, how that dispute will be framed and defined, and what arguments will (and will not) be presented in support of their claims. The Court’s contribution to the development of the law is constrained and shaped to a greater or lesser extent by these variables, as well as by other factors, such as the relative clarity of the substantive and procedural law involved, the prevailing political climate, and the expected consequences of the Court’s decision. And of course the world views, allegiances, and training—the déformation professionnelle—of the judges on the Court, and no doubt many other factors, also have their influence. It would be an unhelpful generalization to assert that the Court’s contribution to the development of the law of the sea has been great, or limited, without a thorough examination of the impact its decisions have had, and also without considering the contributions of other actors involved in the development of the law. It is to this latter question that the next section turns.

3. The agents of development of the law of the sea The comparator is a crucial element in assigning relative significance to an actor’s role and contribution to the development of the law. Who are the ICJ’s ‘competitors’ in the development of the law of the sea? And what are their relative strengths and weaknesses, and the extent of their contributions? The ‘competitors’ of the ICJ can be broken down into roughly four, largely artificial, categories: the other ‘adjudicators’; the ‘codifiers’ of existing law; the ‘regulators’; and the ‘law-makers’, who make new rules of law. We take each category in turn.

3.1 The ‘other’ adjudicators The ICJ today ‘competes’ for cases involving the law of the sea with several other potential fora. Under the 1982 United Nations Convention on the Law of the Sea (LOSC),10 states may settle disputes concerning the Convention’s interpretation or application by any peaceful means of their own choice, failing which they shall11 8

See eg Continental Shelf (Tunisia/Libya) [1982] ICJ Pleadings, vol I, 3, 9 (Special Agreement, Art 1). See JG Collier and AV Lowe, The Settlement of Disputes in International Law—Institutions and Procedures (Oxford: OUP, 1999) 9, referring to Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/USA) [1984] ICJ Rep 246. 10 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3; see also Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, New York, 28 July 1994, 1836 UNTS 3. 11 Subject to important limitations ratione materiae, which do not affect the argument advanced in this chapter. 9


180

The Development of International Law by the ICJ

elect to settle any disputes before the International Tribunal for the Law of the Sea (ITLOS or ‘the Tribunal’) or the ICJ, or they may opt for Annex VII arbitration (which is the default option) or Annex VIII special arbitration.12 But even before the entry into force of the UN Convention, states could always opt for arbitration, and they did so and continue to do so.13 Arbitral tribunals have rendered decisions in roughly half as many instances as the ICJ in cases relating to the (public international) law of the sea since 1945, while the score is almost equal if pre-1945 cases are taken into consideration. Significant and influential decisions have been rendered, the I’m Alone case being an early example on the right of hot pursuit.14 The 1977 arbitral award in the AngloFrench Continental Shelf case had an impact on the law of maritime delimitation,15 competing with the jurisprudence of the ICJ inaugurated in the North Sea Continental Shelf cases eight years earlier.16 A number of other cases have established the right of entry into ports for ships in distress.17 The ITLOS has also dealt with a number of cases. Around twenty have been submitted to it to date;18 but most of them deal with the prompt release of vessels (under LOSC Article 292(1) the ITLOS is the default tribunal to which requests for prompt release will be submitted) or with provisional measures orders (under LOSC Article 290(5) the ITLOS is the default tribunal to prescribe provisional measures pending the establishment of arbitral tribunals). Of the ‘substantive’ cases submitted to the Tribunal, one was suspended while the parties explored extrajudicial settlement and was subsequently removed from the Tribunal’s list once such settlement had been reached,19 while another was decided in 2012.20 The Seabed Disputes Chamber of the Tribunal has also rendered an Advisory Opinion at the request of the Council of the International Seabed Authority.21

12

Arts 280, 281(1), 287 LOSC. Cases under LOSC, for example, have been submitted primarily to Annex VII arbitral tribunals. The fact that such arbitral tribunals are the default method of dispute settlement under LOSC certainly plays a role in this statistic, but in the final analysis it was the decision of states to make this the default method. 14 SS ‘I’m Alone’ (Canada/USA) (1935) 3 RIAA 1609. 15 Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland and the French Republic (United Kingdom/France) (1977) 28 RIAA 3. 16 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands) [1969] ICJ Rep 3. See further, 5.1. 17 See eg Kate A. Hoff, Administratrix of the Estate of Samuel B. Allison, Deceased (US) v Mexico (‘The Rebecca’) (1929) 4 RIAA 444; see also Aramco v Saudi Arabia (1958) 26 ILR 167, but cf AV Lowe, ‘The Right of Entry into Maritime Ports in International Law’ (1977) 14 San Diego L Rev 597. 18 The list of all ITLOS cases, along with all of the Tribunal’s decisions, can be found on the Tribunal’s website at <http:/www.itlos.org/index.php?id=35> (accessed 17 May 2013). 19 Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union) 2009/1 (Order Removing from List) 16 December 2009. 20 Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) (Judgment) 14 March 2012. Two other pending cases, the M/V ‘Louisa’ (St Vincent and the Grenadines v Spain) and the M/V ‘Virginia G’ (Panama/Guinea-Bissau), refer to LOSC violations regarding the arrest or seizure of vessels but are not prompt release proceedings. 21 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) 1 February 2011. 13


The Law of the Sea

181

Domestic courts have frequently been called upon to decide matters relating to the law of the sea, such as questions concerning the jurisdiction of the forum state in various sea zones, rights of navigation, access of ships to ports, hot pursuit, liability for collisions, arrests and posting of bonds or other securities, and the like.22 One of the seminal works on the law of the sea, Colombos, reserves special treatment and a separate heading for the English Admiralty Court, as well as for various naval codes.23 The jurisprudence of domestic courts has played its own significant role in shaping various areas of the law of the sea.

3.2 The codifiers But the jurisprudence of courts is not necessarily the most important—let alone the sole—method for the development of the law. The role of ‘codifiers’ is at least equally significant. And there have been many codifiers, particularly with respect to the law of the sea. ‘Private’ (in the sense of non-governmental) codification attempts, whether by individuals or by learned societies, went a long way towards establishing some of the basic principles of the law of the sea through painstaking research and presentation of the relevant state practice and opinio juris. Apart from individual codification efforts, such as those of Bluntschli, which were important in the period up to the First World War, the work of non-governmental learned societies has had significant impact. In particular, the work of both the International Law Association and the Institut de Droit international has been of crucial importance—at the end of the nineteenth and the beginning of the twentieth century these learned societies produced work of lasting impact on a number of topics, such as the regime of straits,24 and they have continued to do so throughout their existence.25

22 For a selection of relevant recent cases see the Oxford Reports on International Law in Domestic Courts (‘ILDC’) database, <http://www.oxfordlawreports.com>. For example, on jurisdiction in various sea zones see Prosecutor v TP ILDC 1498 (GR 2003); United States v Jho and Overseas Shipholding Group Inc 534 F 3d 398 (5th Cir 2008), ILDC 1068 (US 2008); (also on collision) Blunden v Australia ILDC 207 (AU 2003); Kircaoglu and Sanaga ILDC 1635 (IT 2010); on the right of innocent passage and application of domestic law in the territorial sea see Re Maritime Union of Australia ex p CSL Pacific Shipping Inc, ILDC 204 (AU 2003); Emergia SA v Ministry of Economy and Finance and the National Customs Bureau ILDC 596 (PE 2006). 23 CJ Colombos, The International Law of the Sea (London: Longmans, 6th rev edn 1967). Significantly, neither the ICJ nor its predecessor is mentioned separately. Colombos does, however, acknowledge that while the primary function of the ICJ is to decide cases that are submitted to it, its Statute ‘enable[s] it . . . to codify and develop international law’: Colombos at 9, para 5. 24 See eg DP O’Connell, The International Law of the Sea, vol I, IA Shearer (ed) (Oxford: Clarendon Press, 1982) 301–2. 25 Relevant current and former Committees of the International Law Association include the Committees on ‘Baselines under the International Law of the Sea’, on ‘International Law and Sea Level Rise’, on the ‘Role of International Law in Sustainable Natural Resource Management’, on the ‘Outer Continental Shelf ’, on ‘Coastal State Jurisdiction over Marine Pollution’, and others. For a complete list of ILA Committees see <http://www.ila-hq.org/en/committees/index.cfm> (accessed 17 May 2013). Relevant current Commissions of the Institut include the Commission on Piracy and on the Legal Regime of Wrecks of Warships and Other State-Owned Ships in International Law. For a list of current Institut Commissions see <http://www.idi-iil.org/idiE/navig_commissions.html> (accessed 17 May 2013).


182

The Development of International Law by the ICJ

States too, acting through international organizations, notably the United Nations and its predecessor, the League of Nations, have embarked on some rather laborious codification attempts, initially with disappointing or mixed results, but more recently produced the 1982 LOSC, which has been hailed as a ‘constitution of the oceans’.26 Early intergovernmental codification attempts commenced in 1924, when the League of Nations appointed a Committee of Experts to draw up a list of subjects ripe for codification. These included territorial waters, piracy, and the exploitation of marine resources, as well as the legal status of state-owned merchant ships: but only the question of territorial waters was finally selected for consideration by the codification conference which was convened in The Hague in 1930—to no avail, as disagreement over the crucial question of the breadth of territorial waters did not allow the elaboration of a treaty. The United Nations took up the challenge of codification in a more institutionalized manner, establishing the International Law Commission (ILC) with a mandate to codify and progressively develop selected topics of international law. The careful work of the ILC on the law of the sea, from the Commission’s inception up until 1956, served as the basis for the First United Nations Conference on the Law of the Sea (UNCLOS I), which produced the four Geneva Conventions on the law of the sea of 1958.27 However, the very problem that had defeated the 1930 Hague Conference—disagreement over the breadth of territorial sea—also marred the 1958 codification effort. UNCLOS II, convened in 1960 to consider that question, also failed to reach an agreement, and the matter was laid to rest for a decade. Nevertheless, the Third United Nations Conference on the Law of the Sea (UNCLOS III) succeeded in reaching an agreement on the question as part of a comprehensive package of reforms resulting from its herculean labours. The importance of the LOSC can hardly be overstated.28 To a large extent it is seen as codifying pre-existing customary international law, but important provisions also crystallized nascent rules of customary law or served as the basis for the development of new customary rules—perhaps inevitably relating mainly to rights rather than to duties.29

26 See T Treves, ‘United Nations Convention on the Law of the Sea’ (2008) United Nations Audiovisual Library of International Law, <http://untreaty.un.org/cod/avl/pdf/ha/uncls/uncls_e.pdf> (accessed 17 May 2013); and cf within the UN family: United Nations Conference on Sustainable Development, RIO 2012 Issues Briefs, No 4, <http://www.uncsd2012.org/content/documents/ 216Issues%20Brief%20No%204%20Oeans_Rio20_FINAL.pdf> (accessed 29 December 2012); ‘Secretary-General Launches New Initiative to Protect the World’s Oceans’, 12 August 2012, <http://www.un.org/apps/news/story.asp?NewsID=42668> (accessed 17 May 2013). 27 Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 UNTS 205; Convention on the High Seas, 29 April 1958, 450 UNTS 11; Convention on the Continental Shelf, 29 April 1958, 499 UNTS 311; and Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 UNTS 285. 28 For an evaluation of the impact of the LOSC thirty years since its adoption see generally the contributions in (2012) 27 International Journal of Marine and Coastal Law 701–881. 29 On this latter point see AV Lowe, ‘Was it Worth the Effort?’ in International Journal of Marine and Coastal Law (n 28) 875, 879: rights tend to pass into customary international law more easily than duties.


The Law of the Sea

183

3.3 The regulators A number of international organizations are active in the area of the law of the sea, and their practice has contributed to the development of that law.30 The International Maritime Organization (IMO, formerly the International Maritime Consultative Organization) is the most obvious among them. It has served as the framework for the adoption of a number of important treaties, including SOLAS,31 MARPOL,32 and several treaties on civil liability for pollution damage. But other organizations have also had significant impact in specific areas of the law of the sea. The UN Food and Agriculture Organization (FAO), for example, has contributed to the development of the law in the areas of fisheries management and conservation; the International Atomic Energy Agency, the World Health Organization, the International Labour Organization, and others have also had an impact on the law of the sea within the scope of their respective regulatory mandates.33 The LOSC reserves a role for these and other international organizations, either by specifically referring to them34 or by providing for the elaboration of its general rules by ‘competent’ or ‘relevant’ international organizations.35

3.4 The law-makers Codifiers articulate and systematize existing law: they do not make it. According to current orthodoxy, it is states that are the actual makers of international law. States are constantly developing the law of the sea, establishing new rules and refining older ones, whether through the adoption of treaties in codificatory or other conferences, through action in ‘competent’ international organizations, through negotiations, or through unilateral actions contributing to the pool of state practice, which, coupled with opinio juris, is the classical source of rules of customary international law. And states make treaties. Many treaties and other agreements have been elaborated (in addition to the LOSC), regulating between them almost all aspects of the law of the sea. In addition to the treaties mentioned above, one

30 See generally J Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge: CUP, 2011) 13–19. 31 International Convention for the Safety of Life at Sea, 1 November 1974, 1184 UNTS 3. 32 International Convention for the Prevention of Pollution from Ships, 2 November 1973, 1340 UNTS 184. 33 Between 1985 and 2002 a dedicated documentary yearbook was published by the Netherlands Institute for the Law of the Sea to survey the relevant practice of international organizations: International Organizations and the Law of the Sea (Dordrecht: Graham & Trotman/Martinus Nijhoff, 1985–2002). 34 See eg Art 118 LOSC. 35 See eg Arts 197–223 (LOSC), among others. See further International Maritime Organization, ‘Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization’ (2012) IMO Doc LEG/MISC.7; ‘ “Competent or Relevant International Organizations” under the United Nations Convention on the Law of the Sea’ (1996) 31 L of the Sea Bull 79.


184

The Development of International Law by the ICJ

could note the 1988 SUA Convention and its 2005 Protocol,36 the Djibouti Code of Conduct37 and associated guidelines, and numerous global, regional, or bilateral fisheries agreements. States have had an impact on the development of the law of the sea through their negotiated settlements and delimitations of maritime boundaries, declarations on zones of peace,38 negotiated clarifications of the right of innocent passage for warships,39 and so forth. And, most importantly, they have done so through unilateral measures, action, or claims, which potentially have a profound effect on the substance of the rules of the law of the sea.40 The practice of states may demonstrate the reversal of rules pronounced by an international court—for example, the reversal by treaty of the rule on exclusive flag state jurisdiction in the aftermath of the Permanent Court’s Lotus decision;41 or it may cast doubt on the status of customary or even conventional rules, as for example in the case of the requirements for the adoption of straight baselines, where a significant number of states seem to stretch or even to disregard the requirements in the LOSC, conduct which has often elicited little or no objection from other states.42 As this brief overview demonstrates, the ICJ faces some serious rivals for influence over the development of the law of the sea. To these ‘agents of development’ one should also add some of the great jurists who have produced seminal works on the subject, surveying great bodies of state practice, clarifying the precise content of rules, and providing an overall coherent framework for the analysis and understanding of the law of sea. The monographs by Gidel,43 O’Connell,44 Weil,45 36 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 10 March 1988, 1678 UNTS 221; and Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 14 October 2005, IMO Doc LEG/ CONF.15/21. 37 Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden, 29 January 2009, reproduced as an Annex in IMO Doc C 102/14 of 3 April 2009. 38 See eg UN GA Res 41/11 on the Zone of Peace and Co-operation of the South Atlantic, 27 October 1986, UN Doc A/RES/41/11. See further SP Subedi, Land and Maritime Zones of Peace in International Law (Oxford: Clarendon Press, 1996). 39 Joint Statement by the United States of America and the Union of Soviet Socialist Republics on the ‘Uniform Interpretation of Norms of International Law Governing Innocent Passage’, Jackson Hole, Wyoming, 23 September 1989 (1989) 14 Law of the Sea Bull 12. 40 A useful database of state practice on maritime zones and maritime delimitation is maintained by DOALOS, the Division for Ocean Affairs and the Law of the Sea of the UN Office of Legal Affairs, <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/index.htm> (accessed 29 December 2012). 41 The SS ‘Lotus’ (1927) PCIJ Ser A No 10, 27; and cf Art 1 International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation (‘Brussels Convention’), 10 May 1952, 439 UNTS 233. 42 See for an overview JA Roach and RW Smith, Excessive Maritime Claims (Dordrecht: Martinus Nijhoff, 3rd edn 2012) ch 4. See also this chapter at 5.1. 43 G Gidel, Le droit international public de la mer: le temps de paix, 3 vols (Chateauroux: Établissements Mellottée, 1932–4; repr Vaduz: Topos, 1981). 44 DP O’Connell, The International Law of the Sea, 2 vols, ed IA Shearer (Oxford: Clarendon Press, 1982–4). 45 P Weil, The Law of Maritime Delimitation: Reflections (Cambridge: Grotius, 1989).


The Law of the Sea

185

Colombos,46 Dupuy and Vignes,47 and McDougal and Burke,48 among others, are reference works of great value, consulted by counsel, judges, and scholars alike; and they have exercised their own influence on the development of the law, along with more recent scholarship in the field. The question then is what can be made of all of this—what does it imply for the appraisal of the ICJ’s impact on the development of the law of the sea? It is to this question that the next section turns.

4. Influencing the development of the law: kind and degree Every one of the ‘agents of development’ has had some influence in the development of the law of the sea. But influence comes in different varieties and degrees. Even among the ‘adjudicators’ a distinction can be drawn between the degree of influence of permanent tribunals as opposed to that of ad hoc arbitral tribunals, as well as between international tribunals and domestic courts. On the other hand, courts exercise a different kind of influence on the development of the law to that exercised by the codifiers, regulators, and law-makers.

4.1 Differences in degree: negotiating the law There are obvious differences between the organization and procedures of a permanent jurisdiction such as the ICJ, and ad hoc arbitration. Arbitration is more flexible in every aspect: parties may select the arbitrators, and they do so having regard to their expertise, their particular approach, and even their language or their cultural leanings.49 Arbitral hearings are more flexible and informal, and commonly involve much greater interaction between the tribunal and the parties than is the case in the ICJ: it is easier to engage with lines of questioning coming spontaneously from three or five arbitrators than it is to engage with the more formal handling of questions from much larger judicial benches. Questioning can help to identify hopeless, or fruitful, or even completely (mis)understood lines of argument, to clarify or refine arguments; and it can in effect lead to something close to a process of negotiating the law before (and with) the tribunal. This may yield 46

Colombos (n 23). R-J Dupuy and D Vignes (eds), A Handbook of the New Law of the Sea, 2 vols (Dordrecht: Martinus Nijhoff, 1991). 48 MS McDougal and WT Burke, The Public Order of the Oceans (New Haven: YUP, 1962). 49 As the selection of the Chamber in the Gulf of Maine case readily demonstrates: see Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/USA) (Constitution of Chamber) [1982] ICJ Rep 3, 11 and 12–13 (Dissenting Opinions of Judges Morozov and El-Khani, respectively). The insistence of the parties on selecting not only the number of judges composing the Chamber, but also the particular judges, who all happened to come from western states, brings the creation of the Chamber much closer to arbitration: see E Decaux, ‘Les eaux mêlées de l’arbitrage et de la justice (droit de la mer et règlement des différends)’ in La mer et son droit: Mélanges offerts à Laurent Lucchini et Jean-Pierre Queneudec (Paris: Pedone, 2003) 159, 170. The parties did in fact threaten to withdraw their dispute from the Court in case their preferred composition was not the one selected by the Court in constituting the Chamber, and to submit it to an arbitral tribunal consisting of their preferred judges. 47


186

The Development of International Law by the ICJ

awards that are particularly responsive to the nuances of the pleadings of the parties—though ad hoc tribunals will naturally tend to stay broadly in line with the jurisprudence of standing courts and other ad hoc tribunals. This kind of ‘negotiation’ of the law is more difficult before a standing court; and this is not just because of the more formal nature of their oral proceedings. It is also because permanent jurisdictions tend to be particularly conscious of the need for consistency between their various decisions, and of the need to maintain their authority. They tend to cite their own decisions in earlier cases; and in consequence so do counsel appearing before them. This effect is likely to be amplified in circumstances where clerks are employed. Clerks tend to deliver research papers that contain the kind of material they think is expected from them: it is generally a safe course to analyse a case before a court in terms of that court’s own jurisprudence, relying heavily on approaches, formulae and language drawn from earlier judgments. The whole process of pleading before standing tribunals is more like building with Lego blocks than it is like composing a delicate and nuanced watercolour painting. The repeated quotation and citation of earlier decisions in standing tribunals will result in a jurisprudence constante which, precisely because it is repeated and constante, tends to acquire a certain natural authority and influence that even the most carefully crafted award of an ad hoc tribunal is unlikely to command. Despite the proliferation and variety of international courts and tribunals (both in the area of the law of the sea and beyond),50 the common characteristic of judicial and arbitral proceedings is that courts and tribunals tend to decide on the narrowest available bases and if possible to avoid fundamental questions about the legal order. They tend to focus on the narrower function of deciding particular disputes (which of course may have far-reaching implications for the development of the law), rather than seeing themselves as overtly responsible for developing the legal regime.51 While the degree of influence of the tribunal on the specific situation in the particular dispute is of the highest order, because the decisions are binding upon the parties and dispositive, the range of that influence is narrow. Again, this tends to give standing tribunals, such as the ICJ, more influence than ad hoc tribunals.

50 The main adjudicators in the law of the sea were identified in 3.1, and they include, apart from the ICJ, the ITLOS, arbitral tribunals under the LOSC, and ad hoc tribunals, but questions relevant to the law of the sea may and do arise incidentally before other tribunals, such as the Court of Justice of the European Union (CJEU) and the Appellate Body of the World Trade Organization (WTO AB), and even before human rights courts such as the European Court of Human Rights (ECtHR) and arbitral tribunals set up to resolve investment disputes, whether institutionalized or ad hoc. The ICJ, as the ‘principal judicial organ’ of the UN, may be the primus inter pares, but it is not necessarily the court with the greatest expertise in all the areas in which these courts are active, including the law of the sea. In fact, the arguments in favour of the establishment of ITLOS during UNCLOS III were based at least in part on the need for a tribunal with particular expertise: see Decaux (n 49) 160 with respect to the French position. 51 The exceptions being tribunals such as the CJEU and the ECtHR, and increasingly the WTO AB, which do see themselves as responsible for the development of their ‘sectoral’ legal regime.


The Law of the Sea

187

4.2 Differences in kind: blueprints52 and bricks The codifiers provide an interesting counterpoint to the adjudicators. The codifiers’ role is not to handle the specifics of a particular case in order to decide a dispute. It is rather to give a broad-brush, integrated view of the entire field of law with which they are concerned.53 Any given rule or principle is to be read in the context of the other rules and principles constructing the whole regime, and to be adjusted accordingly. The difference here between the influence of the adjudicators and that of the codifiers is evident—but is it a difference that makes the influence of one greater than that of the other? To answer this we need to think of how the law is applied in practice. A problem arises, a dispute matures. The interests and the positions of the parties are identified. The decision that resolves the dispute will appear to be syllogistic: these are the facts; this is the law that applies to these facts; here is the result of the application of the law to the facts—the conclusion, the (re)solution. But legal arguments are not syllogistic: they are constructed as ‘topical’ arguments, seeking to secure the assent of a specialist audience.54 The contest is over what principle is to be applied, and over how it actually applies to the facts. That will usually require an explanation of how the case in question sits in the context of the overall regime. It requires something like the construction of a story; and such a construction cannot be achieved by plucking principles out of thin air. To take an example that has not in fact been codified, but could have been by the extension of rules that are codified, is there a right of entry to, and/or egress from, maritime ports in favour of ships of third states? Is such a right an analogue or complement to the right of innocent passage? Or are maritime ports to be treated like other areas of internal waters, in which no rights of passage exist for foreign ships?55 Who is it then that constructs the ‘story’? Who is it that provides the overall perspective? This is the work of the codifiers, whether these codifiers are public (such as the states in conference or the ILC) or private (such as the International Law Association or the Institut de Droit international, or individual codifiers or publicists). They create the architecture, the blueprints of entire branches of public international law in ways that the ICJ cannot. The ICJ (and courts in general, including domestic courts) will provide the ‘bricks’, the hard material of public international law, by deciding specific cases. But it is the codifiers who, using these bricks, will create a structure, and see the areas where bricks are missing and fill in the gaps in the light of the design of the overall structure. Used here in the sense of ‘architectural design’. Codification is thus understood here as the establishment of a systematic body of rules for achieving a comprehensive treatment of the subject, as opposed to the mere written formulation of rules for the purpose of consolidation: see A Watts, ‘Codification and Progressive Development of International Law’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law, vol II (Oxford: OUP, 2012) 282. 54 See generally C Perelman and L Olbrechts-Tyteca, Traité de l’argumentation: la nouvelle rhétorique, 2 vols (Paris: PUF, 1958)—a rather old, but very perceptive, analysis. 55 See the references in n 17. 52 53


188

The Development of International Law by the ICJ

4.3 Between blueprints and bricks Both overall structure and individual bricks are indispensable; but they are not enough. State practice and court decisions, national laws and codification treaties will give us the framework, the blueprint of the structure, and will help us with specific points—whether we really need two ships for the crime of piracy, whether auditory signals and continuous pursuit are really needed for hot pursuit. But alongside the grand scheme and the mundane points of detail there lie unanticipated problems and unregulated issues. What precisely is required by way of the removal of disused oil platforms? Every last nut and bolt? Removal so as to ensure the safety of navigation? It is here that the regulators perform a vital role. By setting out guidelines and regulations on matters such as the removal of oil rigs56 and the duties to abandoned seafarers,57 regulators shape the content of the law and the direction in which broader legal principles develop. However, the most rigorous testing ground for the creation and development of the law lies in the conduct of negotiations—whether between states participating in a codification or other conference, or even, exceptionally, in proceedings before an arbitral tribunal. This is where the closest and most careful analysis of the scope and content of legal principles is likely to occur. ‘Negotiations’ in this broad sense thus tend to have a particular influence on the developing understanding of the scope and content of existing legal rules. While records of the critical stages of these ‘negotiating’ procedures remain elusive, even though they are part of the life of the practising lawyer, the influence of these procedures on the development of the law cannot be doubted. They are the ultimate influence on the development of the finegrained textures of the law.

5. Contribution of the ICJ to the development of the law of the sea The ICJ’s contribution to the development of international law varies from topic to topic, and many of these topics are addressed in this book. The ICJ has made important contributions in areas such as the law on the use of force,58 but its contribution is necessarily partial. It is reactive, and it is neither a codifier nor a negotiator, a ‘tester’ of the law. The Court does affirm (and reaffirm) certain core principles and consider their precise role in respect of concrete situations, and it does reaffirm the habit of peaceful settlement. But what is its specific contribution to the development of the law of the sea? The jurisprudence of the Court on matters related to the law of the sea falls broadly into three categories: the delimitation of maritime areas; the regime of fisheries; and the right of passage. We take each of these three categories in turn. 56 See the IMO Guidelines and Standards for the Removal of Offshore Installations and Structures on the Continental Shelf and in the Exclusive Economic Zone, 19 October 1989, IMO Doc A 16/Res 672; and cf Art 60(3) LOSC. 57 See the joint ILO/IMO Guidelines on Provision of Financial Security in Case of Abandonment of Seafarers, 17 December 2001, IMO Doc A 22/Res 930. 58 See Christine Gray’s contribution in this volume at Chapter 11.


The Law of the Sea

189

5.1 Delimitation of maritime areas In the North Sea Continental Shelf cases, the Court rejected the rule of ‘equidistance/special circumstances’ as the customary method of delimitation, finding that the provision of Article 6 of the 1958 Geneva Convention did not constitute a rule of customary international law.59 It went on to make the principle of equity central to delimitation, stating that ‘delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles’.60 Customary international law itself required the application of ‘equitable principles’,61 equidistance being only one of the methods for achieving an equitable result, and one that was indeed inapplicable in those particular cases precisely for the reason that it would not produce such a result.62 Undoubtedly the Court made a great conceptual contribution by putting the principle of equity centre-stage in the delimitation of continental shelves. The developments in the law since the North Sea cases, whether in the ICJ itself,63 in other tribunals,64 or even in the LOSC,65 can be cast as a reaffirmation, further exploration, or application of that concept. However, as great as the Court’s conceptual contribution may be, and however much the Court’s formula regarding equitable principles and the achievement of an equitable result may have been subsequently rehashed and even codified, the reality is that the very vague ‘rule’ regarding delimitation has proved almost incapable of any predictable or otherwise consistent application. Gradually, the Court itself, prodded along by the occasional arbitral decision,66 reverted to adopting the equidistance/special circumstances method as the preferred or presumptive method of delimitation,67 all the while refining the ‘corrective’ principles which would help to lead to an equitable result.68

59

North Sea Continental Shelf (n 16) paras 60–81. North Sea Continental Shelf (n 16) para 85. 61 North Sea Continental Shelf (n 16) para 85. 62 North Sea Continental Shelf (n 16) paras 89–90. 63 See eg Continental Shelf (Tunisia/Libya) [1982] ICJ Rep 18; Continental Shelf (Libya/Malta) [1985] ICJ Rep 13. 64 See eg Delimitation of the Maritime Boundary between Bangladesh and Myanmar (n 20) paras 225–40; along with numerous arbitrations. 65 See Arts 74 and 83 LOSC; but cf Art 15 which maintains the equidistance method with respect to the delimitation of territorial seas. 66 Anglo-French Continental Shelf (n 15) paras 75 and 249. 67 See eg Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep 38, para 51; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [2001] ICJ Rep 40, para 230; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) [2002] ICJ Rep 303, para 288; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) [2007] ICJ Rep 659 para 272: ‘the equidistance method . . . has a certain intrinsic value because of its scientific character and the relative ease with which it can be applied’ (emphasis added); see also 745, para 281; Maritime Delimitation in the Black Sea (Romania v Ukraine) [2009] ICJ Rep 61, para 116. 68 See Maritime Delimitation in the Black Sea (n 67) paras 116 ff for the ‘three stages’. 60


190

The Development of International Law by the ICJ

The only other significant contribution of the Court in the area of maritime delimitation may be said to be its clarification that the geomorphology of the continental shelf is not a relevant factor within the 200 nautical mile limit in Tunisia/Libya,69 even thought this also is in part attributable to the new provisions on the continental shelf elaborated in the LOSC.70 The Anglo-Norwegian Fisheries case is occasionally claimed to be an innovative decision establishing the right of states to draw straight baselines from which to measure sea zones,71 especially given the fact that the relevant decision is reflected, with further elaboration, in the LOSC.72 However, it is debatable whether the decision indeed had any serious impact on the right to draw straight baselines— which was not really disputed, given that the UK was found to have acquiesced in the drawing of such baselines in that case.73 Indeed, practically the only contribution of the decision to the development of the law of the sea can be said to be the elucidation of parameters for allowing the drawing of straight baselines (deeply indented coast, island fringes, and the like), further added to by the LOSC. And yet, state practice has tended to disregard these parameters and consider straight baselines almost as an open alternative to ‘normal’ baselines, in the face of rather limited objection.74 This casts doubt not solely on the Court’s contribution to the development of the law, but may eventually affect the normativity of the customary, and even the conventional, ‘exceptional’ rule.

5.2 The regime of fisheries Despite its name, the (Anglo-Norwegian) Fisheries case did not really deal with fisheries at all. Rather, the two sets of cases in this category are the two (sets of) Fisheries Jurisdiction cases.75 In Icelandic Fisheries Jurisdiction set in the mid1970s the Court pronounced the 12 nautical mile Exclusive Fishing Zone to be a rule of customary international law,76 but that was rather unspectacular given the extensive practice of declaring such zones in light of the failure of both UNCLOS I and II to agree on the breadth of the territorial sea or to accord coastal states preferential rights of access to fish stocks in waters adjacent to the territorial sea. 69

Tunisia/Libya (n 63) paras 62–8. See eg C Schofield, ‘Departures from the Coast: Trends in the Application of Territorial Sea Baselines under the Law of the Sea Convention’ (2012) 27 International Journal of Marine and Coastal Law 723, 730. 71 See eg H Dipla, ‘The Role of the International Court of Justice and the International Tribunal for the Law of the Sea in the Progressive Development of the Law of the Sea’ in A Strati, M Gavouneli and N Skourtos (eds), Unresolved Issues and New Challenges to the Law of the Sea (Dordrecht: Martinus Nijhoff, 2006) 235, 236. 72 See Art 7 LOSC. 73 Anglo-Norwegian Fisheries (UK v Norway) [1951] ICJ Rep 116, 129–30. 74 See n 42 above and cf Schofield (n 70) 726–8; LM Alexander, ‘Baseline Delimitations and Maritime Boundaries’ (1983) 23 Virginia JIL 503, 518. 75 Fisheries Jurisdiction (UK v Iceland) (Germany v Iceland) (Merits) [1974] ICJ Rep 3 and 175, respectively; Fisheries Jurisdiction (Spain v Canada) [1998] ICJ Rep 432. 76 Fisheries Jurisdiction (UK v Iceland) (n 75) para 52. 70


The Law of the Sea

191

The rather more important pronouncement of the Court in Icelandic Fisheries Jurisdiction was that in which it admitted the existence of a right of preferential access for coastal states to fisheries under customary law, especially for those coastal states which are ‘in a situation of special dependence on coastal fisheries’.77 The potential impact of the pronouncement was great, as was the criticism it drew at the time on account of the lack of evidence and of the imprecision of the rule enunciated; but in any event the pronouncement failed to produce any developments. No states seemed to rely on it, and it was quickly submerged under the impetus of the 200 nm claims in the context of UNCLOS III negotiations, and the eventual emergence of the Exclusive Economic Zone as a zone in the international law of the sea. Icelandic Fisheries thus remains a clear example of the ICJ deciding a dispute, rather than (seeking to) map out the law. In the more recent Fisheries Jurisdiction case, the ICJ failed even to reach the stage of consideration of the merits, and the Judgment has thus has had little or no impact on the law on fisheries, although the underlying dispute was one of the factors leading up to the adoption of the 1995 Straddling Fish Stocks Agreement.78

5.3 The right of passage The right of innocent passage through the territorial sea for foreign ships evolved together with the concept of the territorial sea itself, and had been conceded since the days of Vattel. A dispute over innocent passage was the first to come before the ICJ in Corfu Channel,79 which is still hailed as a landmark.80 The dispute raised two main questions related to the law of the sea: one with regard to the concept of straits, and one with respect to ‘innocence’ of passage. A third question lurking just below the surface, however, was the one regarding the application of the regime of innocent passage to straits (rather than some other, adjusted, regime). We take these questions in turn. As far as the definition of straits is concerned, the decision of the Court in Corfu Channel was not really an advance on the position adopted at the 1930 Hague Conference, even though the latter did not produce any binding instrument. The Court merely confirmed that it is the use of a putative ‘strait’ by international shipping, rather than any inherent properties or definition of the strait itself, that determines the rights of both coastal and flag states in the relevant sea area. 77

Fisheries Jurisdiction (UK v Iceland) (n 75) para 58. United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 14 December 1995, 2167 UNTS 88. See T Stephens and DR Rothwell, ‘The LOSC Framework for Maritime Jurisdiction and Enforcement Thirty Years On’ (2012) 27 International Journal of Marine and Coastal Law 701, 707. 79 Corfu Channel (n 1). 80 S Kaye, ‘International Straits: Still a Matter of Contention?’ in K Bannelier, T Christakis and S Heathcote (eds), The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (Abingdon: Routledge, 2012) 149. The title of this publication is in itself instructive as to the fact that the Corfu Channel case is hailed as a landmark in international law in general. Specifically as to the law of the sea, see further Stephens and Rothwell (n 78) 704. 78


192

The Development of International Law by the ICJ

With respect to the ‘innocence’ of passage, the Court diverged from the position adopted at the 1930 Hague Conference, treating the manner of passage as the decisive criterion for its innocence, rather than focusing on the activities during passage and whether these are prejudicial to the interests of the coastal state. Preference of the former criterion over the latter gave a semblance of objectivity, in the sense that passage undertaken in the manner prescribed would be conclusive of innocence, and the violation of coastal state laws would not ipso facto render the passage non-innocent. However, the Court’s decision failed to have a lasting impact: the ILC reverted to the 1930 Hague Conference position, and while the 1958 Geneva Convention on the Territorial Sea re-reverted to the Court’s pronouncement by and large, innocence was again re-conceptualized in the LOSC, which in Article 19(2) reintroduces the activities during passage as the decisive criterion.81 The Corfu Channel case may have established the right of innocent passage through straits for warships, but it said nothing expressly on the right of innocent passage for warships with respect to the territorial sea. The issue remained contentious for a long time,82 and is still the subject of some considerable practice of requiring prior authorization or notification by a sizeable minority of states.83 In the Corfu Channel case it was the fact that passage was through a strait that had a crucial impact on the legal position,84 otherwise the presumption would be that the Court got it wrong—or at least that its Judgment failed to impact the law in any appreciable manner. In fact, it appears that a qualitatively different right of passage through international straits had long been in gestation, a right different from innocent passage.85 This right the Court may have failed to map out clearly (by referring to ‘innocent’ passage, ie qualitatively the same right as the one in existence with respect to the territorial sea), and it was this right that the codifiers then took up as ‘transit passage’ in the LOSC.86 But here again the point is that the Court could hardly be expected to diagnose the evolution, if it had indeed started to occur—this is the proper work of the codifiers. The Court merely added another brick, and it was the codifiers’ job to put it in its proper place in the structure.

81 This is further supported and clarified by the US-USSR Jackson Hole Joint Statement (n 39) para 3. 82 But see finally US-USSR Jackson Hole Joint Statement (n 39) para 2. 83 See RR Churchill and AV Lowe, The Law of the Sea (Manchester: MUP, 3rd edn 1999) 89–90 with further references, as well as Kaye (n 80) 163. 84 As indeed the provision on non-suspension of passage through straits (as opposed to that through the territorial sea) suggests: for this concession see Corfu Channel (n 1) 28 and cf Art 16(4) 1958 Geneva Convention on the Territorial Sea (n 27). 85 See O’Connell (n 24) 301–2, 314, 327, referring to straits constituting an ‘autonomous institution’, and passage through them in practice having approximated high seas passage rather than innocent passage; see also SN Nandan and DH Anderson ‘Straits Used for International Navigation: A Commentary on Part III of the UNCLOS 1982’ (1989) 60 BYIL 159, 159–60 with further references. 86 Art 37 LOSC. But see Churchill and Lowe (n 83) 110 ff.


The Law of the Sea

193

6. Conclusion: the Court’s influence This brief survey of the ICJ’s role in the development of the law of the sea demonstrates that its influence has not been great, and that it is indeed diminishing as other tribunals take on some part of the task of applying the rules of the law of the sea. Only a handful of the delimitation cases are dated in the last couple of decades, and most of the ‘seminal’ cases are quite a bit older than that. But this is to some extent to be expected: as the codifiers, whether the ILC or the states in conference, cover whole areas of the law, either through treaties or merely as sets of articles,87 the ICJ will fall more and more into deciding cases rather than ‘making’ the law. These decisions will have some influence on the further development of the law in its more detailed aspects; but they can hardly be expected to shape it in any fundamental manner. This fate has not befallen the ICJ alone. The same is true for all courts, whether the US Supreme Court, the CFEU, or the ECtHR. The more developed the law is, the less frequently landmark cases will tend to arise. But as we hope to have made clear in this discussion, this does not mean that the ICJ has no influence in the development of the law. It certainly has a different, more limited, but certainly important kind of influence, in producing ever more elaborate bricks; in the end these are what hold the structure of the law together. And, in the final analysis, apart from influence, there is also authority. Of this the ICJ has a great deal, and perhaps it is at least as importance as influence. Where there are divergences in state practice or in the approaches adopted by arbitral tribunals, the ICJ is in principle available to give a definitive ruling as to which is correct. Here the quality of the legal analysis, while important, takes second place to the need to have one tribunal which can decide between competing views of the law. It is the prestige and authority of the ICJ, and the recognition by lawyers of the need for a final arbiter in the international legal system, that gives it that role. It is here that the ICJ makes its greatest contribution to the development of the law of the sea. By giving its imprimatur to or withholding it from developments taking place elsewhere—in codification conferences, in arbitral tribunals, or in some other context—the ICJ provides the essential quality control that is necessary in every legal system.

87 See Watts (n 53) para 14 on the achievement of the ILC in having completed its work on a remarkably wide range of topics comprising the main elements of the architecture of international law.


This page intentionally left blank


PART V THE UNITED NATIONS


This page intentionally left blank


10 The Role of the International Court of Justice in the Development of the Institutional Law of the United Nations James Sloan and Gleider I Hernández

1. Introduction In any legal system, it is generally assumed that the judicial function may play a role in contributing to the understanding of competences and powers within that system. Accordingly, Articles 92–96 of the United Nations Charter, which declare the International Court of Justice (ICJ, or ‘the Court’) to be the ‘principal judicial organ of the United Nations’,1 in conjunction with Chapter IV (Articles 65–68) of the Court’s Statute,2 confer upon competent requesting organs the power to request advisory opinions from the Court.3 In theory, this facility entitles a requesting organ to expect ‘authoritative legal guidance’4 and ‘enlightenment as to the course of action it should take’;5 and in its advisory capacity, the Court would play the role of ‘trusted advisor’, as Sir Franklin Berman states elsewhere in this volume.6 Yet in practice, only rarely has such advice been sought: the Court has only infrequently had occasion to consider the status, powers, and functions of the Organization, and the relationship between its fellow principal organs.7 Moreover, 1 Charter of the United Nations, 1 UNTS xvi; UKTS 67 (1946), Cmd 7015 (26 June 1945) (‘UN Charter’ or ‘Charter’). 2 The Court’s Statute, as is well known, is an annex to the Charter itself. This form entails that, whether or not UN member states accept its jurisdiction in contentious matters, all member states accept its status as a principal organ of the Organization, and its concomitant advisory jurisdiction. 3 Art 95 of the Charter provides that the General Assembly or the Security Council ‘may request the International Court of Justice to give an advisory opinion on any legal question’ and that other UN organs and specialized agencies authorized by the General Assembly ‘may also request advisory opinions of the Court on legal questions arising within the scope of their activities’. 4 See eg GA Res 1731 (XVI) (12 December 1961) (concerning the interpretation of Art 17(2) UN Charter). 5 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase) (Advisory Opinion) [1950] ICJ Rep 65, 71. 6 See the discussion by Sir Franklin Berman in this volume at Chapter 2. 7 According to the Court’s website (<http://www.icj-cij.org>; accessed 17 May 2013), the General Assembly has made but twenty-three requests for advisory opinions, the Security Council has made one request, and ECOSOC has made two requests. The now-defunct Trusteeship Council, whilst


198

The Development of International Law by the ICJ

even where the Court’s advice has been sought by another principal organ, that organ appears, in principle at least, to be free to disregard it.8 Thus, although the court has made important contributions to the institutional law of the Organization, the decision-making and practice of the other principal organs9 has in fact been the major contribution to the institutional law of the United Nations.10 Perhaps reflecting the decentralized nature of international law, the opinions of member states as to the nature of the powers of the Organization seem to be equally relevant. During debates of the General Assembly, the Security Council or the Economic and Social Council (ECOSOC), member states will put forward their views of the functions and powers of the principal organ carrying on the debate, the functions and powers of other principal organs, or those of the Organization as a whole. Ideally, statements by a member state will also reflect their understanding of the Charter or international law generally, and perhaps constitute an expression of that state’s opinio juris. However, one must be cautious in assessing such statements, as a member state’s understanding of what international law requires will correspond to the political outcome it seeks, and may bear little resemblance to earlier interpretations by the same member state.11 The primary forum for addressing legal matters in the General Assembly is the Sixth Committee, though legal issues frequently arise (and are dealt with) in its other Main Committees, as well as its Procedural and Standing Committees.

empowered to request advisory opinions, has never done so. Neither the Secretary-General nor the Secretariat has been vested with the authority to make such requests. 8 The Court has frequently made reference to the non-binding nature of its Opinions. See Interpretation of Peace Treaties (n 5) 71, where the Court observed that its ‘reply is only of an advisory character: as such, it has no binding force’; and Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 168, where the Court stressed the word ‘advisory’ when discussing its ability to render an advisory opinion. The point was recalled in Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1998] ICJ Rep 62, 76, para 25 (Cumaraswamy). It remains possible for an advisory opinion to be accorded a binding character where parties so agree in another treaty or other instrument: see, for example, Art XII(1) of the Statute of the Administrative Tribunal of the International Labour Organization, and Art VIII, s 30 of the UN Convention on Privileges and Immunities of the United Nations, 13 January 1946, 1 UNTS 15. On this point, see, generally, R Ago, ‘ “Binding” Advisory Opinions of the International Court of Justice’ (1991) 85 AJIL 139. As regards the findings of the Court in a contentious case, these too are not, strictly speaking, binding on the Organization. While Art 94(1) of the Charter provides that UN member states undertake to comply with a decision of the Court ‘in any case to which it is a party’ (emphasis added), only states, and not the United Nations or its organs, may be parties in a contentious case. 9 Art 7 of the UN Charter establishes ‘as principal organs of the United Nations: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice and a Secretariat’. The UN principal organs have of course established hundreds of organs of a subsidiary nature over the Organization’s existence; consideration of these is very limited for reasons of space. 10 Regarding the interpretive powers of the organs see: Pollux, ‘The Interpretation of the Charter’ (1946) 23 BYIL 54–82; LB Sohn, ‘The UN System as Authoritative Interpreter for Its Law’ in O Schachter and CC Joyner (eds), United Nations Legal Order (Chippenham: Press Syndicate of the University of Cambridge and the American Society of International Law, 1995); FA Vallat, ‘The Competence of the United Nations General Assembly’ (1959) 97 Recueil des Cours 207. 11 See, for example, the change in approach taken by the United States and the Soviet Union as regards multiple admissions to the UN, 3.1.1, esp n 77.


United Nations Law

199

Where expert legal advice is sought by members of a non-judicial principal organ such as the General Assembly, recourse is frequently had to the Secretariat, itself a non-judicial principal organ. The Undersecretary for Legal Affairs/UN Legal Counsel—operating within the Secretariat—issues legal opinions on a wide range of matters.12 The fact that a non-judicial principal organ has taken a decision does not necessarily mean that the decision is legal under the UN Charter or intra vires the powers vested in it by the UN Charter. As Thomas Franck has noted: [t]he United Nations is the creature of a treaty, and as such it exercises authority legitimately only insofar as it deploys powers which the treaty parties have assigned to it [as] modestly augmented by a ‘penumbra’ of other powers which are necessarily incidental to the effective implementation of the enumerated ones.13

However, as we shall examine below, the Court has called for the decisions of the principal organs to be presumed intra vires; moreover, it has consistently found the presumption to be borne out.14 The generally deferential treatment of the activities of the other principal organs by the Court in its advisory function has served as acknowledgment of the important role of non-judicial principal organs in developing the law relating to the powers and functions of those organs and of the Organization.15 12 Decisions of the UN Legal Counsel may be relevant to the Court’s decision-making process: see, for example, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 para 27, where the Opinion of the Legal Counsel on the General Assembly’s practice as regards Art 12 of the Charter was adopted by the Court. Similarly, in Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 12, para 18, the Court also cited the opinion of the Legal Counsel. But cf Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) Preliminary Objections (Yugoslavia v Bosnia and Herzegovina) [2003] ICJ Rep 7, paras 67–71, where the Court deemed that the Opinion of the Legal Counsel (8 December 2000), as to the legal status of the Federal Republic of Yugoslavia, did not reveal previously existing facts, and was not relied upon. 13 T Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995) 219–20. This echoes the approach taken by Judge Hackworth in Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, Dissenting Opinion of Judge Hackworth, 196, 198: ‘There can be no gainsaying the fact that the Organization is one of delegated and enumerated powers . . . Powers not expressed cannot freely be implied.’ 14 Certain Expenses (n 8); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403. 15 Even where the resolutions of a principal organ are non-binding, such as a declaration by the General Assembly, it is not uncommon for such documents to be relied upon by the Court as reflecting customary international law: see eg the treatment of the Declaration on Friendly Relations between States (GA Res 2625 (XXV) (24 October 1970)) in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. More generally, the law-making power of the organs— primarily the Security Council but also the General Assembly—is the subject of extensive literature. See eg S Talmon, ‘The Security Council as World Legislature’ (2005) 99 AJIL 175; MD Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’ (2005) 16 EJIL 879; M Barelli, ‘The Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples’ (2009) 58 ICLQ 957.


200

The Development of International Law by the ICJ

Because the focus of this chapter is the influence of the Court on the development of the law relating to the UN rather than the influence of the UN non-judicial principal organs, the law-making role of the non-judicial organs per se is largely beyond its scope. Yet it would be somewhat artificial to speak in terms of the Court developing the law autonomously, especially when the Court bases its decisions relating to the law affecting the functioning of the Organization or its non-judicial principal organs on the activities of those organs (inter alia, decisions, resolutions, legal opinions, reports, conduct, or debates). Accordingly, in part 2 of this chapter, we intend to consider the impact of the Court’s findings with respect to the interpretation of the Charter, and the functioning and status of the UN as an international organization. In part 3, we will examine the Court’s contribution to understanding the functioning of the UN’s principal organs, and will consider the Court’s treatment of the powers and functions of the UN’s non-judicial organs, in particular the Security Council and the General Assembly, but also, to a lesser extent, ECOSOC and the Secretariat.16 Part 4 will address the question of how the Court has perceived the limits of its own powers and those of the other principal organs, analysing the particular question of whether the Court may review the powers of the Security Council.

2. The United Nations as an international organization 2.1 Interpretation of the Charter Certainly, the United Nations is much like any international organization: it is constituted through an institutional legal instrument, the Charter, which specifies its purposes and principles, allocates competences of its organs, and explains procedures for the exercise of various powers. Yet the Charter is often identified as the quintessential instrument on which it seems to be agreed that the teleological method of interpretation, or one that gives particular importance to its object and purpose, is to be preferred. Although the Charter is not quite a ‘constitution’, as has been claimed by some,17 it is reasonable to suggest that member states must be regarded as having consented to a dynamic, ‘evolutive’ approach to the interpretation of the Charter and the obligations stipulated in it.18 This may be due to the particularly vague wording used in drafting the Charter, or perhaps to the universalist aspirations embodied within it by its drafters.19 Be that as it may, it is both advisable and common to look extra-textually to discern properly the Charter’s

16

The now-defunct Trusteeship Council will not be considered. As has been suggested by Hambro: see Pollux (n 10) 54; O Schachter, ‘Book Review: Hans Kelsen, The Law of the United Nations’ (1951) 60 Yale LJ 193. 18 See the discussion by Vera Gowlland-Debbas in this volume at Chapter 3. 19 Perhaps most notable in this regard are the ‘supremacy clause’ embodied in Art 103 of the Charter and the ability of its organs to engage directly with non-member states: see eg Art 32; Art 35, para 2; and Art 92, para 2. 17


United Nations Law

201

telos, both through an examination of its travaux préparatoires20 and the subsequent practice of its principal organs and its member states.21 Given the immense power of an instrument such as the Charter, the authority with which the power of interpretation rests is important. Although the power of authoritative interpretation of the Charter was left unspecified in 1945,22 that the Court possesses an important role in this endeavour is now settled. This is partly because, unlike with the non-judicial principal organs, the Court can, through the mechanism of the judicial proceeding and the application of law to a set of concrete disputes or questions put before it, formulate and articulate norms in legal form. In some respects, it functions to strengthen norms already elucidated by other UN organs,23 conferring the imprimatur of legality upon them. The Court moreover ‘benefits from a unique status that confers on it exceptional authority but which also imposes on it certain restrictions that it must confront particularly in its relations with the other principal organs of the United Nations, essentially in the pivotal area of the maintenance of international peace and security’.24 As the principal judicial organ of the Organization, the Court’s interpretation of the Organization’s constitutive instrument is thus of heightened importance. The Court itself has expressly affirmed its power to interpret the Charter, beginning with its very first Advisory Opinion (Admission of a State), in which it concluded that a capability to interpret the Charter could not be excluded from the normal exercise of its judicial power.25 Subsequent advisory opinions involving the 20 The travaux préparatoires for the Charter may be found in United Nations Information Organizations, Documents of the United Nations Conference on International Organization, Doc 1 (English) G/1 (1945) (‘UNCIO’). See also J Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (Abingdon: Routledge, 2011) 99; and S Schwebel, ‘May Preparatory Work be Used to Correct Rather than to Confirm the “Clear” Meaning of a Treaty Provision?’ in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (The Hague: Kluwer, 1996) 541, 543: ‘there is simply too much State practice and judicial precedent that accords preparatory work a greater place.’ 21 A frequently cited example of this approach is the manner in which abstaining votes by the permanent members of the Security Council have come to fall within the expression ‘concurring votes of the permanent members’ contained in Art 27, para 3 of the Charter. Through practice, it has come to be ‘deemed as a constitutionally valid interpretation of the notion of “concurrence” ’, and acknowledged as such by the Court in Namibia (n 14) 22, para 22. See Sands and Klein, Bowett’s Law of International Institutions (London: Sweet & Maxwell, 6th edn 2009) 278. See also B Simma and H-P Kaul, ‘Article 27’ in B Simma (ed), The Charter of the United Nations: A Commentary (Oxford: OUP, 2nd edn 2001) esp 498, where it is noted that, despite the abstention of all five permanent members, in 1973 a resolution was adopted pursuant to Art 27. 22 Although the Charter itself is silent, the power of the Court to interpret the Charter had already been debated in 1945: see H Fakher, The Relationships Among the Principal Organs of the United Nations (Ann Arbor: University of Michigan Press, 1951) 141; M Lachs, ‘The Decision-Making Powers and the Judiciary within the United Nations’ in Fischer et al (eds), Festschrift für Stephan Verosta zum 70. Geburtstag (Berlin: Duncker & Humblot, 1980) 395; and UNCIO Documents (n 20) vol XIII, 653–4, 668–9, 687–8, 709–10, 719–20, 831–2. 23 A Pellet, ‘Strengthening the Role of the International Court of Justice as the Principal Judicial Organ of the United Nations’ (2004) 3(2) J L and Practice of Intl Courts and Tribunals 159, 168. 24 Pellet (n 23) 160–1. See also ST Bernárdez, ‘La fonction de la Cour internationale de Justice: tendances actuelles du règlement judiciaire’ in E Yapko (ed), Liber Amicorum Judge Mohammed Bedjaoui (The Hague: Kluwer, 1999) 485, 490. 25 Conditions for Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1947] ICJ Rep 57, 61.


202

The Development of International Law by the ICJ

interpretation of the Charter by the Court in relation to the division of competences between the various principal organs have confirmed this view. The Court has interpreted the Charter in respect of the international legal personality of the United Nations26 and the doctrine of implied powers.27 It has made other contributions to the institutional law of the United Nations: elucidating, inter alia, the extent of the supervisory power of the General Assembly with respect to territories under the League of Nations’ mandate system;28 giving a more precise delineation of the competences of the non-judicial principal organs in respect of the budget;29 allocating power to interpret the Charter;30 elaborating the competence of the nonjudicial principal organs in matters of international peace and security;31 asserting its own power to consider objections to resolutions of the General Assembly and Security Council;32 and clarifying the ability of political organs to create subsidiary judicial organs.33 These various contributions will be covered in turn.

2.2 The legal personality of the United Nations Decisions of the Court have shown it to be at pains to facilitate the successful functioning of the Organization, through its recognition that the UN is an international organization of an extraordinary nature, unrivalled in terms of its importance and in terms of the powers bestowed upon it by its member states. The jurisprudence of the Court has touched on a number of areas relating to the UN’s relationship with its member states,34 with non-member states,35 and with its specialized agencies (vis-à-vis the member states of those specialized agencies);36 26

27 Reparation for Injuries (n 13) 182. Reparation for Injuries (n 13) 185: see 2.2. International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128, 131 ff. 29 Certain Expenses (n 8) 167. See 3.2.1. 30 Certain Expenses (n 8) 168, where it affirmed the powers of the various principal organs, including the Court itself, in interpreting the Charter. 31 Certain Expenses (n 8) 163, regarding the concurrent role of the General Assembly alongside the Council in peacekeeping; and 163, the exclusive competence of the Security Council to take coercive action. See also Wall (n 12) 146, where it affirmed the competence of the General Assembly in matters where the Security Council is deadlocked under the ‘Uniting for Peace’ resolution. For further discussion see 3.2.2. 32 Namibia (n 14) paras 87 ff; for further discussion see 3.3 and 4.3.1. 33 Effect of Awards of Compensation made by the United Nations Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47, 57. 34 See Reparation for Injuries (n 13), discussed in 2.2. In addition, it has considered the obligations of member states when confronted with a mandatory Security Council decision (Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v UK ) (Preliminary Objections) [1998] ICJ Rep 9 (‘Lockerbie (Preliminary Objections)’), discussed in 4.3.1) or a General Assembly resolution that is not ‘merely hortatory’ (Certain Expenses (n 8), discussed in 3.2.1). Member states are also bound by obligations under the Convention on Privileges and Immunities entered into by the UN and member states: see eg Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) [1989] ICJ Rep 177 (‘Mazilu’), and Cumaraswamy (n 8), where the Court considered the nature of the breadth of immunities from national law; see Obligation to Arbitrate (n 12) on the UN’s relationship with the United States. 35 In Reparation for Injuries (n 13), discussed in 2.2, the Court found that the UN possesses international legal personality opposable to member states and non-member states alike. 36 See MS Amr, The International Court of Justice as the Principal Judicial Organ of the United Nations (The Hague: Kluwer, 2003) 159–67 and his discussion of Mazilu (n 34), and Cumaraswamy (n 8), Obligation to Arbitrate (n 12), and the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73. 28


United Nations Law

203

its ability to afford protection to its staff 37 and ensure their fair treatment;38 the scope of the powers of the principal organs to establish subsidiary organs;39 and others. One such decision, with respect to the contribution made by the Court to the current understanding of the UN’s role and status as an international organization, is particularly noteworthy. The Reparation for Injuries Advisory Opinion, sought by the General Assembly in 1948, involved the question of whether the United Nations had the capacity to bring an international claim against a government with a view to obtaining reparation in respect of damage caused (a) to the UN and (b) to its agent.40 The Court’s finding, that the UN possesses legal personality on the international plane which is opposable to member states and non-member states alike, as well as the capacity to claim on its own behalf and that of its agent, demonstrated the Court’s confidence in the new Organization and ‘provided a rock solid, incontrovertible foundation for the Organization’s future action’.41 Moreover, the Opinion provides a valuable early illustration of the broad and purposive method of interpretation that the Court has tended to use when considering the Organization’s powers in circumstances where the Charter is ambiguous or silent. In order to determine whether the UN possessed the capacity to bring an international claim, the Court needed first to determine whether the Organization had international personality. Because the Charter did not expressly confer personality on the Organization, the Court turned instead to the functions of the Organization, suggesting that such functions implied certain powers as necessary for its work.42 Here it focused on the important—and unprecedented—nature of the characteristics bestowed upon the UN by its members in the Charter (its structure, its relationship with its members,43 the ‘important character’ of its political tasks, and its legal capacities44) and its practice (‘in particular the conclusion of conventions to which the Organization is a party’45). Through this analysis, the Court found that the UN was an international person: it ‘was intended to 37

The most obvious example is Reparation for Injuries (n 13). See the discussion of Effect of Awards (n 33) in 3.1.3. 39 Application for Review of Judgment No 158 of the United Nations Administrative Tribunal (Advisory Opinion) [1973] ICJ Rep 166 and Effect of Awards (n 33). 40 Reparation for Injuries (n 13) 178. Although it will not be discussed here, the Court also considered the question of how a claim by the UN on behalf of a victim was to be reconciled with (possibly competing) claims by the state of which the victim was a national. 41 Statement by P O’Brien, Under-Secretary-General for Legal Affairs, The Legal Counsel, Seminar on the International Court of Justice, Informal Meeting of Legal Advisers, New York, 25 October 2011, <http://legal.un.org/ola/media/info_from_lc/POB%20Statement%20Legal%20Advisers%20meeting% 202%20_ICJ%20seminar%202011_.pdf> (accessed 17 May 2013). 42 The Court noted, in particular, how the Organization had been entrusted with ‘special tasks’: Reparation for Injuries (n 13) 178. 43 Reparation for Injuries (n 13) 179. The Court noted that in becoming a party to the UN Charter, member states agreed to give the UN every assistance in its actions (Art 2(5)), pledged to accept and carry out the decisions of the Security Council, and authorized the General Assembly to make recommendations to them. 44 Reparation for Injuries (n 13) 179 The Court observed that the Charter gives the Organization legal capacity and privileges and immunities in the territory of each of its members and provides for the conclusion of agreements between the Organization and its members. 45 Reparation for Injuries (n 13) 179. 38


204

The Development of International Law by the ICJ

exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane’.46 The Court’s emphasis on the breadth and importance of the Organization’s purposes, and its accompanying desire to ensure that it is successful in achieving them, recurs frequently in the Court’s jurisprudence. So too has its tendency to give considerable weight to the Organization’s past practice in determining the extent of its powers, an issue that will be revisited below in the discussion of the powers and functions of the non-judicial principal organs.47 Having found the Organization to possess personality on the international plane, the Court then considered whether the Organization possessed the capacity to bring an international claim on its own behalf against a member state.48 Once again the Charter was silent; accordingly, the Court considered the question by analysing the functions with which the Organization had been entrusted. The Court found that the UN had been endowed with such a capacity, noting that it was impossible to see how it could otherwise obtain reparation.49 On the related question of whether the UN had the capacity to bring an international claim on its own behalf against a non-member state, the Court observed as follows: [F]ifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims.50

The finding that an international organization possessed a status of such importance that it had an effect on all sovereign states, whether or not they were party to its constitutive treaty, made clear that the Court considered the UN to be unprecedented in nature and of objective significance on the international plane.51 The 46

47 See 3.1. Reparation for Injuries (n 13) 179. This question arose because, unlike a state, the UN did not possess ‘the totality of international rights and duties recognized by international law’. What rights and duties it did hold depended ‘upon its purposes and functions as specified or implied in its constituent documents and developed in practice’: Reparation for Injuries (n 13) 180. 49 Reparation for Injuries (n 13) 180. 50 Reparation for Injuries (n 13) 185. This particular quotation is constantly cited, almost for more than it can bear, with respect to the formation of customary international law. Yet it bears recalling that, at the time of the Charter’s drafting, fifty states represented nearly the totality of the world’s states recognized at the time, save for the defeated Axis powers. 51 While the Court’s reasoning on the point is limited, it does not appear compatible with its earlier reasoning in relation to its finding that the UN has international legal personality. There the Court focused on the special tasks that had been vested in the UN by its members and the unusual way in which the states parties to the Charter had defined their position in relation to the Organization. Clearly such considerations are of no relevance as regards non-member states. Yet the Court insisted on the objective nature of the UN’s legal personality, a personality that could be opposed against non-member states with no relation to the Organization. Although the question of the objective personality of an organization has receded in importance with respect to the UN in view of its now-universal membership, the question remains live when considering other international organizations or supranational organizations, in particular the international personality claimed for the European Union: see the Treaty on European Union and the Treaty Establishing 48


United Nations Law

205

Court then examined whether the UN possessed the capacity to claim on behalf of an agent. It observed that ‘[u]nder international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties’.52 While this general principle is perhaps uncontroversial, its application to the facts was not, leading to a split among the judges. To the majority, ‘[u]pon examination of the character of the functions entrusted to the Organization and of the nature of the missions of its agents, it [was] clear that the capacity of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter’.53 According to Judge Hackworth’s partial dissent, however, no such necessity had been shown to exist in the circumstances.54 The question of what powers are, in fact, necessary—or, put another way, just how necessary a power must be for it to be judged as being implied—is one that has been returned to in the Court’s subsequent case law regarding the powers of non-judicial principal organs and one that will be further developed below.55 The Court’s finding that the UN possessed international legal personality was a ‘breakthrough’.56 Writing in the 1950s, Lauterpacht suggested that the Court had acted ‘boldly and by way of direct challenge to what was considered the traditional view’;57 to him, the significance of the Opinion lay ‘not so much in the recognition of the international personality of the United Nations as in the final and formal rejection of the view that States can only be subjects of international law’.58 The Opinion, which remains amongst the most important affecting the legal status of the UN, has been cited repeatedly in the subsequent case law of the Court59 and the European Community, as amended by the Treaty of Lisbon (13 December 2007), OJEU C 83, vol 53 (30 March 2010), Art 46 (A). 52 Reparation for Injuries (n 13) 182. It relied on the earlier application of this principle of law by the PCIJ to the International Labour Organization in Competence of the ILO to Regulate Incidentally the Personal Work of the Employer (Advisory Opinion) (1926) PCIJ Ser B No 13, 18. 53 Reparation for Injuries (n 13) 184. To the majority, such a power was necessary for the UN to adequately protect its agents in order ‘to ensure the efficient and independent performance of [its] missions and to afford effective support to its agents’ (183). 54 Reparation for Injuries (n 13). See also the Dissenting Opinion of Judge Hackworth, 198, who raised another issue as regards implied powers, which to him must ‘flow from a grant of expressed powers’. 55 See 3.1. 56 J Sztucki, ‘International Organizations as Parties to Contentious Proceedings before the International Court of Justice’ in S Muller, D Raić and H Thuránszky (eds), The International Court of Justice: Its Future Role after Fifty Years (The Hague: Kluwer, 1997) 141, 142–3. 57 H Lauterpacht, The Development of International Law by the International Court, Being a Revised Edition of The Development of International Law by the Permanent Court of International Justice (1934) (London: Stevens, 1958) 181. 58 Lauterpacht (n 57), 179. Lauterpacht went so far as to characterize the Opinion as arguably an example of ‘judicial legalisation’ (179). See also R Higgins, ‘The Development of International Law by the Political Organs of the United Nations’ (1965) 59 ASIL Proceedings 116, 123: ‘the Court found that the United Nations had capacity to bring international claims. Although it is in a sense the Court that is “law-creating” here, it is in another sense merely declaring what the law is.’ 59 The Reparation for Injuries Opinion (n 13) was followed by the Court in Cumaraswamy (n 8) esp paras 50–1, 63–4.


206

The Development of International Law by the ICJ

the Administrative Tribunal of the International Labour Organization;60 it has moreover guided the International Law Commission (ILC) in its work.61 In addition, the Opinion has been used to justify the practice of the United Nations in asserting claims in respect of its agents wrongfully injured by states62 and ‘laid the foundations for the development of treaties relating to the protection of UN personnel’.63 Although the Court’s reasoning in the Reparation opinion placed great emphasis on the UN’s unique status among international organizations, its impact has not been limited to the United Nations. In the words of Shabtai Rosenne, ‘[l]egal opinion regards this opinion as one of the most important judicial pronouncements of the present Court and a watershed in the development of the law of intergovernmental organizations’.64 Practice would support this: it is now generally accepted that international organizations other than the UN may possess personality on the international plane.65 In the WHO and Egypt Headquarters Opinion, the Court observed that ‘[i]nternational organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’.66 Although this does not suggest that objective international personality automatically imposes itself on the domestic law level, in international law at least, the question of the Organization’s standing to make claims became established.

60

See eg Jurado v ILO (No 1) (1970) 40 ILR 296, 301. The Court’s Opinion in Reparation for Injuries has had a continuing and pervasive influence on the work of the ILC. See eg J Dugard, Fifth Report on Diplomatic Protection (2004) UN Doc A/CN.4/538, 4 March 2004, 8–9. Recently, the Opinion was cited no fewer than seven times in ILC, ‘Draft Articles on the Responsibility of International Organizations, with Commentaries’, 2011, <http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_11_2011.pdf> (accessed 17 May 2013), (at 9, 11, 12, 17, 69, 72, 75). The Opinion was also an important factor in the ILC’s work on the Convention on the Law of Treaties between States and International Organizations or between International Organizations, 1986, UN Doc A/CONF.129/15, 19 (1986) reproduced in (1986) 25 ILM 543 (not yet in force at the time of writing). 62 Fifth Report on Diplomatic Protection (n 61) 9. 63 P d’Argent, ‘Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion)’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law, vol VIII (Oxford: OUP, 2012) 880, para 10. See also Statement by P O’Brien (n 41) referring to a ‘vast rich practice’ that has developed within the UN on the basis of the Reparation for Injuries Opinion. ‘The Organization has concluded thousands of treaties with its Member States, ranging from simple conference agreements to complex status-of-forces agreements, and it routinely intercedes with Member States to afford protection for its personnel.’ 64 S Rosenne, The Law and Practice of the International Court, 1920–2005: Volume I: The Court and the United Nations (The Hague: Koninklijke Brill, 2005) 307. 65 HG Schermers and N Blokker, International Institutional Law (The Hague: Kluwer, 3rd edn 1995) 980, para 1569. See also Ago (n 8). See also Sir Franklin Berman’s contribution in this volume at Chapter 2. 66 WHO-Egypt (n 36) para 37. The Court observed elsewhere that it ‘need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence’: Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, para 25. 61


United Nations Law

207

3. Powers of the principal organs Of the six principal organs created by the UN Charter, all but the Court itself are non-judicial in nature. As such, the Court’s judicial pronouncements are of heightened relevance in understanding the distribution of powers and functions within the United Nations system,67 as well as the limits of these powers. Of course, it is not enough to look to how the Court interprets the international law relevant to the work of the non-judicial political organs. One must also look to the reaction of the non-judicial political organs to the Court’s interpretation; that is to say, whether they have regard or disregard for the Court’s jurisprudence. Accordingly, the first half of this section will consider the Court’s findings as regards the powers and functions of the non-judicial principal organs and the limits thereupon. The second half will turn to the reaction of the non-judicial principal organs to the findings of the Court, including how they have received such findings, and the impact the Court’s findings have had on their functioning.

3.1 The Court’s approach to the non-judicial principal organs As the following section will demonstrate, the Court’s approach to the powers and functions of the non-judicial principal organs is characterized by considerable deference to the decision-making of those organs. This is not dissimilar to the Court’s approach to the Organization as a whole, as discussed: it has shown (a) a broad understanding of the Organization’s purposes or expressed aims and a willingness to ensure that it is successful in achieving them, (b) a liberal approach to implied powers, and (c) a willingness to give considerable weight to the interpretation of powers by the organ itself, as evidenced by its practice. Taken as a whole, the restrained posture of the Court vis-à-vis the resolution of normative conflicts between the principal organs, whilst perhaps belying a minimalist conception of its role, makes sense within a Charter system envisaged first and foremost as a system to preserve international peace and security, rather than a comprehensive system of international cooperation.68

67 On the relationship among various organs of the same international organization see, generally, J Klabbers, ‘Checks and Balances in the Law of International Organizations’ in M Sellers (ed), Autonomy in the Law (Dordrecht: Springer, 2007) 141–63. It is true that the Court has engaged with various subsidiary organs, including the International Criminal Tribunal for the former Yugoslavia established by the Security Council (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43, paras 214–24, the ILC established by the General Assembly (see Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 paras 49 ff ), the United Nations Administrative Tribunals (see, generally, Application for Review (158) (n 39), Application for Review of Judgment No 273 of the United Nations Administrative Tribunal (Advisory Opinion) [1982] ICJ Rep 325, and Application for Review of Judgment No 333 of the United Nations Administrative Tribunal (Advisory Opinion) [1987] ICJ Rep 18). For reasons of space, the Court’s relationship with these subsidiary organs will not be further considered here. 68 UN Charter, Art 1; Sands and Klein (n 21) 22.


208

The Development of International Law by the ICJ

In three important advisory opinions, the Court demonstrated its willingness to opine on the powers and functions (and limits thereupon) of non-judicial principal organs (or the member states of which they were comprised).

3.1.1 Admission of a State In the Admission of a State Opinion of 1948, the Court was asked to determine whether a member state in its vote in the Security Council or the General Assembly was ‘juridically entitled to make its consent to the admission [of a state to the UN] dependent on conditions not expressly provided by’ Article 4(1) of the Charter,69 in particular the condition that other states be admitted.70 Commenting for the first time on its relationship to the other principal organs,71 the Court affirmed that the conditions in Article 4(1) represented ‘an exhaustive enumeration’ which must ‘be regarded not merely as the necessary conditions, but also as the conditions that suffice’.72 Reliance upon ‘extraneous considerations . . . would lead to conferring upon Members an indefinite and practically unlimited power of discretion in the imposition of new conditions’.73 Three further aspects of the Opinion merit mention. First, it is true that the Court’s reading of Article 4(1) limited the discretion of member states, and with it, of the non-judicial principal organs on which they sit. At the same time, the Court stressed the ‘very wide and very elastic nature’ of the conditions in Article 4(1), and observed that nothing prevented states from taking into account any factors— including relevant political factors—‘which it is possible reasonably and in good faith to connect with’ those conditions.74 In this respect, the Court’s finding that the discretion of member states was limited to the conditions enumerated in Article 4(1) does not, in actuality, amount to much: they are not required to state a reason for their vote75 and, even if they choose to, a reasonable modicum of creativity would suffice for member states to link the political factors behind their decisions 69 Admission of a State (n 25) 58. Art 4(1) provides that ‘[m]embership to the UN is open to all . . . peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations’. 70 The issue arose because when the applications for membership of Bulgaria, Finland, Hungary, Italy, and Romania came before the Security Council, the USSR had insisted that all five applicants be voted upon together. When this proposal was rejected, the USSR vetoed the applications of Finland and Italy. The other three applicants were rejected by majority vote. 71 Although emphasizing the ‘abstract’ nature of Advisory Opinions: Admission of a State (n 25) 61. 72 Admission of a State (n 25) 62. 73 Admission of a State (n 25) 62–63. 74 Admission of a State (n 25) 63. 75 T Franck, ‘Admission of a State to Membership in the United Nations (Advisory Opinions)’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law, vol I (Oxford: OUP, 2012) 87, para 7, made the following observation: ‘While the majority’s opinion may be rationally impeccable, it poses in near-textbook fashion the question of the limits of adjudication in what is essentially a politicodiplomatic dispute. Since no member is required to state the reason for its vote in either the General Assembly or the Security Council, the effect of juridically precluding a specific motive for voting is likely to be that the member’s true motive will thereafter not be revealed, but the vote will remain unaffected. It cannot be very surprising, then, that the advisory opinion did not succeed in breaking the deadlock.’


United Nations Law

209

on admission to one of the conditions listed in Article 4(1).76 Secondly, by interpreting the Charter such that the membership conditions in Article 4(1) were seen as exhaustive, the Court’s interpretation reflected that of most members at the time, who opposed the practice of en masse admissions.77 Far from defying the will of the General Assembly or the Security Council, the Opinion shows a Court that was being deferential to the majority of states in both organs. Thirdly, by interpreting the Charter in a way that limited discretion of member states, the Court was arguably depoliticizing the admissions process, thus allowing the stalled process to continue and bringing the Organization closer to its goal of universal membership.

3.1.2 Competence of the General Assembly for Admission The question of the admission of new states, given continued Soviet vetoes over resolutions recommending admission that was not en masse, continued to embroil the Court in the following years, with a second request by the General Assembly relating to membership being submitted in November 1949.78 The request concerned whether the General Assembly could admit a state to the Organization in the absence of a recommendation from the Security Council, despite the fact that Article 4(2) of the Charter provides that admission ‘will be effected by a decision of the General Assembly upon the recommendation of the Security Council’. The Court held that the wording was clear and that the Council’s recommendation constituted a condition precedent for the Assembly’s decision: both were ‘indispensable to form the judgment of the Organization’ and effect admission.79 Several factors explain the Court’s reasoning here. Foremost is the plain text of the Charter itself, which clearly indicated that the General Assembly could not act

76 H Lauterpacht suggests that member states could exercise a level of creativity, whereby they could argue, ‘not necessarily in bad faith, that most political factors are relevant’. Lauterpacht, (n 57) 148–52. So, for example, Soviet Russia might argue—‘not very plausibly, but not necessarily in bad faith’—that when it voted against the admission of Italy on the ground that Bulgaria had not been admitted, that a ‘clearly political motive might, in some indirect fashion, have been relevant to the question of the ability and willingness of Italy to carry out the obligations under the Charter’ (Lauterpacht). See 3.4, for a discussion of how the Opinion was received by the General Assembly and the Security Council. 77 The background to the practice is complex. At a meeting in August 1946, the US representative submitted a draft resolution to recommend the admission of eight states at the same time. The representative of the USSR, amongst others, objected to this approach, arguing that the Security Council was bound to discuss each application separately. The US representative withdrew the draft resolution. In September of the following year, the representative of Poland submitted a draft resolution to recommend that five applicants (Bulgaria, Finland, Hungary, Italy, and Romania) be admitted at the same time. This time it was the US representative, amongst others, who insisted that the applications be examined separately and the representative of the USSR who insisted that all five be considered together. A resolution was adopted (nine votes to two) calling for each application to be voted upon separately. See United Nations, Repertoire of the Practice of the Security Council 1946–1951, 282. 78 Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) [1950] ICJ Rep 4. 79 Competence of the General Assembly (n 78) 7–8.


210

The Development of International Law by the ICJ

without the Security Council’s recommendation.80 Had the Court found that the General Assembly could act without the Security Council, it would have denuded the latter organ of a power expressly vested in it by the Charter. So to do ‘would almost nullify the role of the Security Council in the exercise of one of the essential functions of the Organization’,81 and could have led to a strong, negative reaction from the Council (and the permanent states seated on it). Later opinions show that its position is relatively consistent with the Court’s case law: in other cases where the Court has been charged with determining the relative powers of principal organs, it has generally been able to interpret the Charter in such a way that two non-judicial principal organs could possess concurrent powers.82 Moreover, the request involved advice on prospective action by the General Assembly; it was not asked to determine, ex post facto, whether the General Assembly had acted ultra vires. The Court’s unwillingness to find retrospectively that another principal organ has acted beyond its powers is arguably linked with its tendency to attach considerable importance to the practice of the organs, as discussed.83 As the Court itself observed, the General Assembly and the Security Council had ‘consistently interpreted’ Article 4 to the effect that the Council’s recommendation was a necessary condition for the Assembly to admit a new member.84 The contrary view, which had originated with Argentina in the Assembly and was also submitted by it to the Court,85 did not find much favour.86

80 The Court, rightly, did not consider any argument relating to the travaux préparatoires, noting that the Charter was unambiguous: Competence of the General Assembly (n 78) 8. 81 Competence of the General Assembly (n 78) 9. 82 See, for example, the discussion at 3.1.3 of the overlapping role of the Secretariat and the General Assembly, discussed in Effect of Awards (n 33); or the discussion of the overlapping role of the General Assembly and the Security Council in relation to international peace and security, considered in Certain Expenses (n 8), at 3.2.1. 83 See Reparation for Injuries (n 13), discussed in 2.2. 84 Competence of the General Assembly (n 78) 9. The Court also pointed to the Rules of Procedure of the General Assembly itself, which required the Council’s recommendation as a condition for decision, Art 126. 85 See the Written Statement of the Republic of Argentina in the Competence of the General Assembly Opinion (n 78) in Pleadings, Oral Arguments, Documents of the International Court of Justice (The Hague: ICJ Publications, 1948), 123, 125–7, to the effect that because Art 4(2) referred to a Security Council ‘recommendation’ and because only ‘decisions’ were binding, the content—or even the existence—of a resolution was not determinative. As is evident from their written statements, most other states were opposed to Argentina’s approach. 86 But cf the Dissenting Opinion of Judge Álvarez, Competence of the General Assembly Opinion (n 78) 20, who suggested that, as regards matters of admission at least, the General Assembly possessed a reviewing function, such that it could determine whether or not the Security Council’s power of veto had been abused. A variation on the ‘abusive veto’ argument was embraced by former British Prime Minister Tony Blair when he advised the BBC on 6 February 2003 that if a country ‘unreasonably’ vetoed a resolution further to SCR 1441, which gave Saddam Hussein’s Government in Iraq a final warning, then ‘I would consider action outside of that’. In testimony before the Chilcot Inquiry into the War in Iraq, Blair’s Attorney-General Lord Goldsmith distanced himself from the ‘unreasonable veto’ approach (‘Iraq Inquiry: Blair to Deal with Goldsmith Claims’ BBC News, 18 January 2011, <http://www.bbc.co.uk/news/uk-politics-12209604> (accessed 17 May 2013)). Perhaps unsurprisingly, neither Álvarez’s ‘abusive veto’ nor Blair’s ‘unreasonable veto’ have been embraced by the international legal community.


United Nations Law

211

3.1.3 Effect of Awards In the Effect of Awards Opinion, decided in July 1954, the Court was asked to consider whether the General Assembly possessed the power to refuse to give effect to an award made by an employment tribunal established by it. Although the Court found that the General Assembly lacked the power to act as a judicial organ or to refuse to give effect to the award under the circumstances,87 the Court made some efforts to emphasize that the powers and functions of the General Assembly remained very broad. The Court, replying to an argument that the General Assembly had acted outside its authority in establishing an employment tribunal with judicial functions, turned to the General Assembly’s implied powers. Relying on the stated aims of the Organization—the promotion of freedom and justice,88 which must include, in the view of the Court, justice between the Organization and its staff 89—and the need to achieve these aims, the Court concluded that the power to establish a judicial organ to deal with employment disputes had been ‘conferred . . . by necessary implication as being essential to the performance of its duties’.90 In response to claims to the effect that the General Assembly’s powers were limited, the Court made several statements of importance. First, the Court concluded that the General Assembly had the power, at its sole discretion, to empower a subsidiary organ that could bind it.91 Secondly, the Court confirmed that the General Assembly, by establishing the tribunal, could divest itself of powers conferred upon it to approve or disapprove expenditures; it cautioned only that such powers were not absolute.92 Thirdly, the Court affirmed that the General Assembly, in establishing the employment tribunal, was not trespassing into staffing matters that fell exclusively within the competence of the Secretariat: both principal organs enjoyed concurrent roles in that area.93 Finally, the Court clarified that the General Assembly could establish a subsidiary organ charged with

87 Effect of Awards (n 33) 53: ‘As this final judgment has binding force on the United Nations Organization as the juridical person responsible for the proper observance of the contract of service, that Organization becomes legally bound to carry out the judgment and to pay the compensation awarded the staff member. It follows that the General Assembly, as an organ of the United Nations, must likewise be bound by the judgment.’ 88 Effect of Awards (n 33) 57: ‘the power to establish a tribunal, to do justice between the Organization and the staff members, was essential to ensure the efficient working of the Secretariat and to give effect to the paramount consideration of securing the highest standards of efficiently and integrity. Capacity to do this arises by necessary intendment out of the Charter.’ 89 Effect of Awards (n 33) 57: ‘It would . . . hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial remedy to its own staff for the settlement of disputes which may arise between it and them.’ 90 Effect of Awards (n 33) 56, referring to Reparation for Injuries (n 13) 182. 91 Effect of Awards (n 33) 58. 92 Effect of Awards (n 33) 58. The Court noted that some part of the UN’s ‘expenditure arises out of obligations already incurred by the Organization, and to this extent the General Assembly has no alternative but to honour these engagements’ (58). 93 Effect of Awards (n 33) 60. The Court noted that the Charter envisages the General Assembly as having the ability ‘at all times to limit or control the powers of the Secretary-General in staff matters’.


212

The Development of International Law by the ICJ

functions that the General Assembly did not itself possess—so long as the General Assembly possessed the relevant powers under the Charter—and that such a subsidiary organ could bind the General Assembly irreversibly.94 The Effect of Awards Opinion shared certain similarities with the Admission of a State Opinion: in both, the Court recognized limitations on the powers of the nonjudicial principal organs (and the member states of which they were composed). In Effect of Awards, it was determined that the General Assembly could not reverse a binding decision of its subsidiary organ or act judicially; in Admission of a State, member states of the Security Council or the General Assembly were limited by the conditions provided in Article 4(1) of the Charter. Yet in each case, the narrowness of the limitations there enumerated was thrown into sharp relief by the broad nature of the powers and functions that the Court found to exist: in Effect of Awards, the General Assembly’s power to establish a judicial subsidiary organ to deal with labour disputes (despite not having judicial authority itself ) and to determine, in its own discretion, the precise nature and scope of the measures by which the power of creating a tribunal was to be exercised; in Admission of a State, the ability to link factors, including relevant political factors, to the conditions provided in Article 4(1) of the Charter. In sum, in considering the allocation of competences, the Court remains mindful of the distinction between recognizing concurrent powers, as in Effect of Awards, versus giving one organ such latitude so as virtually to denude another non-judicial principal organ of its power in an area, as in Competence of the General Assembly for Admission. One can also observe a reluctance of the Court to find another principal organ had acted ultra vires its powers. In Effect of Awards, the Court’s broad interpretation upholding the legality of the establishment of the administrative tribunals included a somewhat surprising finding that providing judicial relief for employment claims was necessarily intended by the drafters of the Charter. With Competence of the General Assembly for Admission, the Court could decide that the General Assembly was lacking in power to admit member states without the recommendation of the Security Council without having to make a finding of ultra vires; it was considering proposed action, rather than reviewing past conduct. The Court is also demonstrably mindful of the overall interests of the non-judicial principal organs and the Organization more generally. With the finding in Admission of a State, the admission of new members was facilitated; with the finding in Competence of the General Assembly, the Court avoided marginalizing the Security Council as regards an important function vested in it; with the finding in Effects of Awards, the undesirable prospect of the General Assembly reversing itself after having committed to take certain actions having financial implications was avoided. It is perhaps noteworthy that its opinions in all these cases also reflected the wishes of the majority of member states.

94

Effect of Awards (n 33) 61.


United Nations Law

213

3.2 Inter-organ power relations While the Security Council and General Assembly possess concurrent powers in many areas, the Charter, unlike the Covenant of the League of Nations, provides that the Security Council shall have ‘primary responsibility for the maintenance of international peace and security’.95 Moreover, two specific limitations were placed on the jurisdiction of the General Assembly in the Charter. First, Article 11(2), in its final sentence, provides that any questions relating to the maintenance of international peace and security ‘on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion’. A second, related limitation is found in Article 12(1), which prohibits the General Assembly from making any recommendation with regard to a dispute or situation on which the Security Council is exercising the functions assigned to it in the Charter, unless the Security Council so requests. In the early years, the Soviet Union’s frequent exercise of its veto power in the Security Council left many, primarily western states to call for an increased role for the General Assembly (where, of course, there is no veto power) in matters relating to peace and security.96 After a series of vetoes in relation to the military enforcement action in the Korean Peninsula (earlier authorized by the Security Council when the Soviet representative was absent from the Security Council chamber) the General Assembly passed Resolution 377(V), or ‘Uniting for Peace’,97 which authorized the General Assembly immediately to consider a matter ‘where there appears to be a threat to the peace, breach of the peace, or act of aggression’ and the Security Council has failed to exercise its responsibilities due to an exercise of the veto.98 It also provided the General Assembly with the authority to make ‘appropriate recommendations to Members for collective measures’, including the use of armed force when necessary.99 The legality of the Uniting for Peace resolution was controversial: in allowing for a recommendation by the General Assembly for the use of armed force, it was arguably contrary to the requirement in Article 11(2) that questions of international peace and security on which ‘action is necessary’ be referred to the Security Council. Moreover, a recommendation by the General Assembly on a dispute or situation where the Security Council was ‘exercising . . . the functions assigned to it in the . . . Charter’ would arguably violate the prohibition embodied in Article 12(1).100

95

Art 24(1) of the Charter. ND White, The Law of International Organisations (Melland Schill Studies in International Law) (Manchester: MUP, 2005) 103. 97 GA Res 377A (V) (3 November 1950). 98 ‘Uniting for Peace’ (n 97) operative clause 1. 99 ‘Uniting for Peace’ (n 97). 100 An allegation of a violation of Art 12(1) would presumably not be made if an Emergency Session of the General Assembly was convoked by the Security Council, as this would presumably be tantamount to a request for the assistance of the General Assembly. 96


214

The Development of International Law by the ICJ

It is true that the Uniting for Peace resolution has receded in importance and its substantive aspects are now primarily limited to the General Assembly’s power to call special sessions. However, two opinions which addressed the question of concurrent competencies of the General Assembly and the Security Council— Certain Expenses,101 decided in July 1962, and the more recent Wall Opinion,102 decided in July 2004—help to illuminate wider questions relating to the institutional law of the United Nations. These will be examined in turn.

3.2.1 Certain Expenses Six years after the Uniting for Peace resolution was passed, the Court was asked to consider whether two peacekeeping missions, the UN Emergency Force in the Suez (UNEF) and the UN Operation in the Congo (ONUC), had been established in contravention of Article 11(2). UNEF had been established by the General Assembly pursuant to the Uniting for Peace resolution. ONUC, although established by the Security Council, had been the subject of a General Assembly resolution issued at an emergency special session of the General Assembly convoked pursuant to the Uniting for Peace resolution.103 In its Opinion, the Court recognized that Article 24 of the Charter provided that member states conferred primary responsibility for the maintenance of international peace and security on the Security Council, and that only it could impose an explicit obligation of compliance under Chapter VII, but emphasized that the ‘responsibility conferred is “primary”, not exclusive’.104 It stressed the important role of the General Assembly as regards the maintenance of international peace and security, a point the Charter makes ‘abundantly clear’.105 The Court also considered that the limitation contained in Article 11(2) (‘[a]ny . . . question on which action is necessary shall be referred to the Security Council by the General Assembly . . . ’) had an extraordinarily narrow meaning, such that it only referred to ‘coercive or enforcement action’.106 Again, at the time of the Opinion, the use of such action within the Organization was extremely limited; as such, the narrow meaning attributed to the limitation denuded it of much of its impact. Despite frequent invocation by states in the oral proceedings before it, the Court ‘studiously avoid[ed] all mention’107 of whether the Uniting for Peace resolution was incompatible with the limitations on the General Assembly’s powers in Article 11(2). This is perhaps because, unlike with the Competence of the General Assembly for Admission Opinion, a broad interpretation of the General Assembly’s powers here would not deprive the Security Council of any of its powers, even as it presented a bold challenge to the latter’s primacy. The Security 101

102 Wall (n 12). 103 Certain Expenses (n 8) 153. Certain Expenses (n 8). Certain Expenses (n 8) 163. The Court also held that it was ‘only the Security Council which can require enforcement by coercive action against an aggressor’. 105 Certain Expenses (n 8) 163. 106 Certain Expenses (n 8) 164 (emphasis added). 107 DW Bowett, United Nations Forces: A Legal Study of United Nations Practice (London: Stevens & Sons, 1964) 291. 104


United Nations Law

215

Council’s failure to uphold its responsibilities in the area of international peace and security due to the overuse of the veto may also have played a part in the Court’s reasoning. The Court did not discuss directly the legality of the Uniting for Peace resolution; however, in reply to an argument that all measures taken for the maintenance of international peace and security had to be financed through Article 43 agreements, which were not in force, it commented as follows: The Court cannot accept so limited a view of the powers of the Security Council under the Charter. It cannot be said that the Charter has left the Security Council impotent in the face of an emergency situation when agreements under Article 43 have not been concluded.108

That statement is illustrative of the Court’s focus on upholding the purposes of the Organization as a whole, a concern also evidenced when the Court turned to the UN’s purposes in order to determine whether the expenses that had been authorized were ‘expenses of the Organization within the meaning of Article 17, paragraph 2 of the Charter’.109 The Court indicated that ‘when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization’.110 It continued: ‘If the Security Council, for example, adopts a resolution purportedly for the maintenance of international peace and security’, expenses arising from it ‘must be presumed to constitute “expenses of the Organization”’.111 In his Separate Opinion, Judge Sir Percy Spender expanded upon the theme, emphasizing the unique nature of the Charter.112 This approach of emphasizing the sweeping nature of the UN’s purposes— and the importance of ensuring that it is successful in achieving them—when interpreting the powers specifically entrusted to the Organization, has recurred in the Court’s judicial pronouncements.113

3.2.2 Wall Forty years after the Certain Expenses case, we see a Court that was much bolder in its treatment of the parameters of the Article 12(1) limitation on the General 108

109 Certain Expenses (n 8) 167–68. Certain Expenses (n 8) 167. 111 Certain Expenses (n 8) 168. Certain Expenses (n 8) 168. 112 Separate Opinion of Judge Sir Percy Spender, Certain Expenses (n 8) 185: ‘In the interpretation of a multilateral treaty such as the Charter which establishes a permanent international mechanism or organization to accomplish certain stated purposes there are particular considerations to which regard should, I think, be had . . . It may with confidence be asserted that its particular provisions should receive a broad and liberal interpretation unless the context of any particular provision requires, or there is to be found elsewhere in the Charter, something to compel a narrower and restricted interpretation. The stated purposes of the Charter should be the prime consideration in interpreting its text.’ 113 For example, in Application for Review (158) (n 39) paras 14 ff, the Court considered the nature of the General Assembly’s power to establish subsidiary organs, as provided for in Arts 7(2) and 22 of the Charter. It found that ‘[t]he object of both those Articles is to enable the United Nations to accomplish its purposes and to function effectively. Accordingly, to place a restrictive interpretation on the power of the General Assembly to establish subsidiary organs would run contrary to the clear intention of the Charter.’ See also Reparation for Injuries (n 13) 179; Namibia (n 14) para 115. 110


216

The Development of International Law by the ICJ

Assembly’s powers and the legality of the Uniting for Peace resolution. The Wall Opinion involved a request for an advisory opinion from the General Assembly on ‘the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory’. The resolution requesting the advisory opinion had emerged from an emergency special session of the General Assembly, called pursuant to the Uniting for Peace resolution.114 Israel contested the very propriety of instituting proceedings, claiming that the General Assembly had acted ultra vires its powers in requesting the advisory opinion, as Article 12(1) precluded the General Assembly from making a recommendation on a dispute or situation where the Security Council was exercising its Charter functions. The Court concluded that the General Assembly’s right to invoke the Uniting for Peace procedure, though rarely used, had been generally accepted in practice.115 Referring to Certain Expenses, the Court again observed that the Security Council’s responsibility for the maintenance of international peace and security, though primary, was not exclusive,116 and proceeded to consider the impact of Article 12(1) and the Uniting for Peace resolution on the General Assembly’s functioning. The Court considered the practice of the two non-judicial principal organs both in the early years of the UN and in more recent times, and concluded that ‘both the General Assembly and the Security Council initially interpreted and applied Article 12 to the effect that the Assembly could not make a recommendation on a question concerning the maintenance of international peace and security while the matter remained on the Council’s agenda’.117 However, based on the General Assembly’s subsequent interpretation of the provision, whereby it interpreted ‘the words “is exercising the functions” in Article 12 of the Charter as meaning “is exercising the functions at this moment” ’,118 the Court found that ‘the accepted practice of the General Assembly, as it has evolved, is consistent with Article 12, paragraph 1, of the Charter’ and the General Assembly had not ‘exceeded its competence’.119 It held further that the Tenth Emergency Special Session of the General Assembly, where the opinion was requested, could ‘properly be seised, under Resolution 377 A (V), of the matter now before the Court’.120 The Wall case is thus noteworthy as the findings in the case are based primarily upon the apparently uncontested practice of the organs,121 moving in some respects away from the plain meaning of the relevant Charter provision and essentially leaving the limitation denuded of much of its legal effect.

114

115 Wall (n 12) para 27. Wall (n 12) para 23. 117 Wall (n 12) para 27. Wall (n 12) para 26. 118 Wall (n 12) para 27. 119 Wall (n 12) para 28. 120 Wall (n 12) para 31. 121 As Klein and Schmahl note, ‘[n]o known protests by the [Security Council] against this course of action have been made’: see E Klein and S Schmahl, ‘Article 12’ in B Simma et al (eds), The Charter of the United Nations: A Commentary, vol 1 (Oxford: OUP, 3rd edn 2012) 507, 512, para 11. 116


United Nations Law

217

3.3 Interpretation of acts of other principal organs The Court has been restrained in its interpretation of resolutions of the General Assembly or ECOSOC, though it has indicated that certain of these may reflect customary international law.122 However, perhaps due to the binding nature of these, the Court has in two instances provided cautious guidance regarding the interpretation of Security Council resolutions. In Namibia, the Security Council (for the first and only time)123 engaged the advisory procedure to request guidance as to the legality of South Africa’s presence in Namibia after its declaration, in Security Council Resolution 276, that South Africa’s presence was ‘illegal’.124 The Court, fenced into a direct interpretation of the legal effects of the resolution, gave the following guidance on the interpretation of Council resolutions: The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and . . . all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.125

It could be said that the Court had there been empowered to produce an authentic interpretation, given that the request had emanated from the Council.126 In Kosovo, an Advisory Opinion requested by the General Assembly, the Court seemed to confirm its statement in Namibia, stating as follows: While the rules on treaty interpretation embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties may provide guidance, differences between Security Council resolutions and treaties mean that the interpretation of Security Council resolutions also require that other factors be taken into account. Security Council resolutions are issued by a single, collective body and are drafted through a very different process than that used for the conclusion of a treaty. Security Council resolutions are the product of a voting process as provided for in Article 27 of the Charter, and the final text of such resolutions represents the view of the Security Council as a body . . . The interpretation of Security Council resolutions may require the Court to analyse statements by representatives of members of the Security Council made at the time of their adoption, other resolutions of the Security Council on the

122 See in particular Nuclear Weapons (n 15) paras 68–70, where the Court stated that a series of General Assembly resolutions on nuclear disarmament had ‘normative value’, even if by themselves they were not binding: they could provide evidence important for establishing the existence of a customary rule, or alternatively, demonstrate the gradual evolution of the opinio juris required for the establishment of a new rule. 123 See generally R Higgins, ‘The Advisory Opinion on Namibia: Which UN Resolutions are Binding under Article 25 of the Charter?’ (1972) 21 ICLQ 270. 124 SC Res 276 (30 January 1970), operative clause 2. 125 Namibia (n 14) para 114. 126 MC Wood, ‘The Interpretation of Security Council Resolutions’ (1998) II Max Planck Ybk of UN L 73, 82: ‘Only the Security Council, or some body authorized to do so by the Council, may give an authentic interpretation [of a Council resolution]’ (emphasis added).


218

The Development of International Law by the ICJ

same issue, as well as the subsequent practice of relevant United Nations organs and of States affected by those given resolutions.127

These unusually full explanations given by the Court together offer an important contribution to our understanding of how resolutions of the Security Council— and by possible extension, those of other organs of international organizations—are to be interpreted: it concedes that although the rules of treaty interpretation embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties are relevant, they can be but a starting point. This is surely logical as a matter of form: although Security Council resolutions are and remain acts of international law, important distinctions between treaties and resolutions of international organizations exist, as the Court mentioned in Kosovo, and as such, blind reliance on those articles is unhelpful, as Michael Wood told us already in 1998.128 Instead, it seems that the intention of the Council must be discerned not only by the words that it has chosen, but also in the light of other circumstances, including, inter alia, the peculiarities of the Council’s procedures and the records of deliberations and statements of Council members.129 However, the formal differences between the two documents should not be overstated: for example, the multi-layered and diffuse drafting process for Council resolutions is mirrored by that used in drafting multilateral treaties. As the Court emphasized in Kosovo, the text agreed upon after deliberation is itself the embodiment of the decision of the Council’s members, and is the one affirmatively voted upon; this gives the text a particular relevance. Thus, the Court’s important statements on the method through which it considers the resolutions of the Council would be, at the very least, indicative of how it is prepared to interpret the acts and resolutions of other principal organs.

3.4 Influence and impact of the Court’s findings on the other principal organs Analysing the substance of how the Court has interpreted the powers and limitations of the non-judicial principal organs and how it has viewed its role in this regard does not tell the whole story. Equally important in elucidating the institutional law of the United Nations is the extent to which its findings have influenced the conduct of the other principal organs, and the member states from which they are constituted. Despite the non-binding nature of its advisory opinions, the Court’s potential to contribute has been felt at a number of levels within the Organization. From the UN’s earliest days, it has been emphasized that member states ought not to act in defiance of the law as set forth by the Court. Speaking in 1949, a delegate observed that an advisory opinion of the Court would provide the General Assembly with ‘an authoritative opinion on the legal aspects of the question of South West Africa’, 127

128 Wood (n 126) 95. Kosovo (n 14) para 94. Wood (n 126) 86–7. Wood places emphasis on the fact that Security Council resolutions are often not self-contained, incorporating by reference other documents such as reports from the Secretary-General or even the conditions in previous resolutions. 129


United Nations Law

219

thus placing the General Assembly ‘in a better position to arrive at a solution, the weight of which would be the greater as a result of having been based upon a legal study by the principal judicial organ of the United Nations’.130 Other states have referred to a ‘moral obligation’ to have regard for the findings of the Court: ‘morally . . . it would be a very grave matter indeed if [an advisory opinion] were to be set at naught by the Council’.131 Yet others have cited ‘their traditional respect for international law and support for the solution of problems by legal means’.132 A similar view was expressed by the Assembly itself, in Resolution 2723 (XXV), which provides that any review of the Court’s work should ‘seek to facilitate the greatest possible contribution by the Court to the advancement of the rule of law and the promotion of justice among nations’.133 Whether based on a high regard for the Court, a perceived ‘moral obligation’, or a desire not to be seen to be acting extra-legally, member states appear, in the main, to treat the findings of the Court as more or less binding de facto. Once an advisory opinion has been given by the Court, the practice of the requesting organ is to pass a resolution thanking the Court for its efforts and acknowledging the opinion with varying degrees of enthusiasm. So important is the manner in which advisory opinions are received that the principal organs often engage in protracted discussions on the wording.134 For example, sometimes the General Assembly will merely ‘take note’135 of an advisory opinion; at other times the General Assembly goes further and ‘accepts’,136 ‘accepts and endorses’,137 ‘takes 130 See United Nations, Repertory of Practice of United Nations Organs, Vol 5, Article 96 (1945–1954) 73. 131 United Nations, Repertoire of the Practice of the Security Council, 1946–1951 (n 77) 234. See also United Nations, Repertory of Practice of United Nations Organs, Supplement No 3, Vol 4 (1959–1966) 24–5. 132 Repertory of Practice of United Nations Organs, Supplement No 3 (n 131) 24–5. 133 GA Res 2723 (XXV), ‘Review of the Role of the International Court of Justice’ (15 December 1970). See also GA Res 3232 (XXIX) (12 November 1974) operative clause 5, where the General Assembly recommended that United Nations organs and specialized agencies should periodically review legal questions within the competence of the Court and ‘study the advisability of referring them to the Court for an advisory opinion’. 134 With the Reparation for Injuries Opinion (n 13)—only the second Advisory Opinion the General Assembly had requested of the Court—an issue arose as to how the General Assembly should receive the Opinion. A draft resolution wherein the General Assembly ‘[r]esolves that it accepts the advisory opinion . . . as an authoritative expression of international law on the questions considered’ was replaced with the neutral ‘[h]aving regard to the advisory opinion’ after a variety of views were expressed during the debate as to the authoritative nature of the Opinion: see United Nations, Repertory of Practice of United Nations Organs, Vol 5 (n 130) 80–2. 135 See eg GA Res 385 (V) (3 November 1950), which took note of the Interpretation of Peace Treaties Advisory Opinion (n 5); GA Res 3458 (XXX) (10 December 1975), in which it took note ‘with appreciation’ of the Advisory Opinion in Western Sahara [1975] ICJ Rep 12; or GA Res 51/45 [M] (10 December 1996), in which it took note of the Nuclear Weapons Advisory Opinion (n 15). 136 See eg GA Res 449 (V) (13 November 1950), by which the General Assembly accepted the Advisory Opinion on the International Status of South West Africa (n 28); and GA Res 1854 (XVII) (19 December 1962), by which the General Assembly accepted the Certain Expenses Advisory Opinion (n 8). 137 The General Assembly formally accepted and endorsed the Court’s Advisory Opinion in Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa (Advisory Opinion) [1955] ICJ Rep 67, in GA Res 934(X) (3 December 1955), and its Opinion in Admissibility of Hearings by the Committee of South West Africa (Advisory Opinion) [1956] ICJ Rep 23, in GA Res 1047 (XI) (23 January 1957).


220

The Development of International Law by the ICJ

note of and endorses’138 or ‘receives with respect’139 an opinion. Certainly, a resolution accepting an advisory opinion does not make it binding upon that organ,140 but it provides a signal of that organ’s attitude towards the opinion. At times, the General Assembly has passed resolutions ‘recommending’,141 ‘urging’142 or even ‘demanding’143 compliance with an opinion of the Court by particular member states—such as South Africa after the South West Africa Opinion and Israel after the Wall Opinion—or by all states.144 It has also requested or authorized the Secretary-General to take action in compliance with an opinion145 or to conform his practice to the opinion.146 Moreover, the Court’s pronouncements

138 The General Assembly ‘took note of ’ and ‘endorsed’ the Obligation to Arbitrate (Advisory Opinion) (n 12) in GA Res 42/232 (13 May 1988). 139 An Emergency Session of the General Assembly ‘received with respect’ the Advisory Opinion issued in Wall: see GA Res ES-10/15 (20 July 2004). 140 However, some representatives in the General Assembly were against ‘accepting’ the Certain Expenses Opinion (n 8), preferring instead to ‘take note’ of it, on the basis that accepting the Opinion would amount to ‘an imposition of unagreed obligations of Member States’ and ‘be equivalent to imposing the compulsory jurisdiction of the Court on the many Member States which had not yet accepted it’. When the Opinion was ultimately accepted by the General Assembly (GA Res 1854 A (XVII) (19 December 1962)), some representatives considered this to mean that ‘the opinion had been given binding force’: see United Nations, Repertory of Practice of United Nations Organs, Supplement No 3 (n 131) 25. This does not appear to have been the majority view. 141 For example, GA Res 449 (V) (13 November 1950) relating to South West Africa (1950) (n 28). 142 The General Assembly urged South Africa to take the necessary steps to give effect to the International Status of South West Africa Opinion (n 28) (GA Res 449 (V) (13 December 1950)) and ‘urge[d] the host state [the United States] to abide by its international legal obligations and to act consistently with the [Obligation to Arbitrate (n 12)] advisory opinion’: see GA Res 42/232 (13 May 1988). 143 See GA Res ES-10/15 (20 July 2004). 144 For example, after the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15 the General Assembly recommended to all states that they be guided in regard to the Genocide Convention by the Advisory Opinion (GA Res 598 (VI) (12 January 1952)). After the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (n 15), the General Assembly adopted a resolution underlining the ‘unanimous conclusion of the Court that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament’ and called upon ‘all States to fulfil that obligation immediately by commencing multilateral negotiations in 1997 leading to an early conclusion of a nuclear-weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination’ (GA Res 51/45[M] (10 December 1996) (115-22-32). During the period 2000–9, ‘countless’ General Assembly resolutions were issued which followed up on the Opinion (United Nations, Repertory of Practice of United Nations Organs, Supplement No 10, Vol 6 (2000–2009) (Advance Version) 4). An Emergency Session of the General Assembly called upon all member states to comply with their legal obligations as mentioned in the Wall Opinion (GA Res ES-10/15 (20 July 2004)). 145 See GA Res 365 (IV) (1 December 1949), relating to the Reparation for Injuries Opinion (n 13). As regards the Obligation to Arbitrate Opinion (n 12), the General Assembly requested that the Secretary-General ‘continue his efforts to ensure the constitution of the arbitral tribunal provided for under section 21 of the [Headquarters] Agreement’ (GA Res 42/232 (13 May 1988)). 146 For example, after the Genocide Advisory Opinion (n 144), the General Assembly requested that the Secretary-General conform his practice in respect of reservations to that Convention to the Advisory Opinion (GA Res 598 (VI) (12 January 1952)).


United Nations Law

221

have led to changes in the agenda of the General Assembly147 and to the establishment of working groups.148 Abstract statements on the Court’s usefulness set aside, the influence of its judicial pronouncements has a normative aspect, irrespective of their formally non-binding character. Once the Court has acknowledged the existence of a rule or an obligation, any debate on a possible course of action is likely to be influenced by the Court’s finding: ‘if the Court advises, for example, that a certain obligation exists, the State upon which it is said to rest has not bound itself to accept the Court’s finding, but it will be in a weak position if it seeks to argue that the considered opinion of the Court does not represent a correct view of the law’.149 In fact, it would appear that nothing prevents the principal organ from deciding to treat an advisory opinion as binding: in the words of the French representative to the General Assembly, speaking in 1953, ‘as a general rule, advisory opinions should not be considered to be binding; it [is], however, sometimes useful to make an exception to that rule’.150 This has happened in practice: in the same decision in which it requested the Cumaraswamy Advisory Opinion,151 ECOSOC called on the Government of Malaysia to ‘ensure that all judgements and proceedings in this matter in the Malaysian courts are stayed pending receipt of the advisory opinion of the International Court of Justice, which shall be accepted as decisive by the parties’.152

147 For example, after the Court delivered its Admission of a State Opinion (n 25), the item entitled ‘Admission of new Members: . . . (b) Advisory Opinion of the International Court of Justice’ was included in the agenda of the third session of the General Assembly (Repertory of Practice of United Nations Organs, Vol 5 (n 130) 77). After the Court delivered the Certain Expenses Advisory Opinion (n 8), an agenda item was included in the subsequent session of the General Assembly entitled ‘Obligations of Members, under the Charter of the United Nations, with regard to the financing of the United Nations Emergency Force and the Organization’s operations in the Congo: Advisory Opinion of the International Court of Justice’ (United Nations, Repertory of Practice of United Nations Organs, Supplement No 4, Vol 1, Article 96 (1959–1966) 21). 148 For example, after the Certain Expenses Advisory Opinion (n 8) the General Assembly established a Working Group to study special methods for financing peacekeeping operations of the United Nations involving heavy expenditures (GA Res 1854 B (XVII)) (19 December 1962). 149 HWA Thirlway, ‘The International Court of Justice’ in M Evans (ed), International Law (Oxford: OUP, 3rd edn 2010) 586, 608. For example, as early as 1949, France had characterized a Soviet draft resolution recommending the simultaneous admission of twelve applicants as incompatible with the Admission of a State Opinion (n 25) (United Nations, Repertoire of the Practice of the Security Council, 1946–1951 284); it was eventually opposed as being ‘in disregard’ of the Court by the United Kingdom, France, and Canada (286). Similarly, in 1950, the South West Africa Advisory Opinion led to debates in the Fourth Committee on the impact of the Opinion, South Africa of course emphasizing its non-binding nature: Repertory of Practice of United Nations Organs, Vol 5 (n 130) 83. More recently, although Israel vehemently denied any binding character of the Court’s Opinion in Wall, the vast majority of states (150 for, six against, ten abstentions) called upon Israel to comply with its ‘legal obligations as mentioned in the advisory opinion’: see UN Doc A/RES/ES-10/15 (2 August 2004). In debates, Malaysia, Austria, India, South Africa, Qatar, Pakistan, Jordan, and Egypt all called upon Israel to comply with its international legal obligations ‘as confirmed’ by the General Assembly: see Records of the 24th Meeting of the 10th Emergency Special Session of the General Assembly (16 July 2004), UN Doc A/ES-10/PV.24. 150 See Repertory of Practice of United Nations Organs, Vol 5 (n 130) 74. 151 Cumaraswamy (n 8). 152 ECOSOC Decision No 1998/297.


222

The Development of International Law by the ICJ

The reaction of the Security Council to one advisory opinion, and of the General Assembly to two other opinions, provide further examples of the principal organs endorsing, but not immediately applying, the Court’s judicial pronouncements. When the Court delivered its Namibia Opinion, the Security Council, encouragingly, passed a resolution which ‘took note’ of and ‘agreed’ with it.153 In addition, the Security Council ‘[d]eclare[d] that . . . all Members of the United Nations should take [the rights of the people of Namibia] into account in their dealings with the Government of South Africa’ and ‘[c]all[ed] upon all States’, inter alia, ‘[t]o abstain from entering into treaty relations with South Africa in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia’ and ‘to abstain from sending diplomatic or special missions to South Africa that include the Territory of Namibia in their jurisdiction’.154 The Security Council again referred to the Opinion in 1974, when it demanded that South Africa make a solemn declaration that it would comply with the Opinion.155 However, the actual practice of the Security Council was not necessarily influenced by the reasoning of the Court. One aspect of the Opinion featured the Court rejecting the view that Article 25 of the Charter, according to which members agree to ‘accept and carry out the decisions of the Security Council in accordance with the present Charter’, applied only to enforcement measures adopted under Chapter VII.156 Yet when the Security Council endorsed the Opinion, the United Kingdom and France rejected this stance, claiming that the Council could take binding decisions only under Chapter VII and after an express determination under Article 39.157 Its subsequent practice suggests that the Security Council has inclined more towards the UK/France view than the position of the Court on the issue. In 1948, after the Admission of a State Opinion, where the Court denied the existence of additional membership criteria to those in Article 4(1) of the Charter,158 the General Assembly passed resolutions recommending that members of the Security Council act in accordance with the Opinion when exercising their votes on the admission of new members159 and requesting that the Security Council reconsider the applications for membership of Portugal, Trans Jordan, Italy, Finland, Ireland, Austria, and Ceylon in the light of the Opinion.160 Despite this, it was not until 1955, after numerous draft resolutions recommending

153 SC Res 301 (20 October 1971), para 6, where it made specific reference to para 133 of the Opinion (its Operative Clause). 154 SC Res 301 (20 October 1971), paras 7 and 11. 155 SC Res 366 (17 December 1974). 156 Namibia (n 14) para 113. 157 SD Bailey and S Daws, The Procedure of the UN Security Council (Oxford: OUP, 3rd edn 1998) 271. Italy took the view that it was for the Council itself to decide when its resolutions have a binding character. 158 See 3.1.1, for further discussion of the Opinion. 159 GA Res 197 A (III) (8 December 1948). 160 GA Res 197 B (III) (8 December 1948) and C (III) (8 December 1948).


United Nations Law

223

admission were vetoed based on factors unconnected with Article 4(1), that the Security Council agreed to admit sixteen states simultaneously.161 Elihu Lauterpacht has noted that while the Security Council ‘collectively reversed their position’ on the matter, this was done ‘long after their action could be attributed to the force of the Opinion of the Court’.162 Another Opinion facing resistance at the time was Certain Expenses. When it was considered by the General Assembly at its seventeenth session (1962), the nonbinding nature of advisory opinions was emphasized by certain states, with some representatives being against ‘accepting’ the Opinion, preferring instead to ‘take note’ of it.163 These same representatives questioned the soundness of the Opinion and argued that its non-unanimous nature meant that it did not constitute an authoritative pronouncement on a point of law.164 Despite the fact that the Opinion was ultimately accepted by the General Assembly, the Soviet bloc continued in its refusal to make certain payments, leading to ‘a situation which had to be resolved by novel diplomatic means, rather than by the application of the law as determined by the Court’.165 To Lauterpacht, the Certain Expenses case, like the Admissions case, represents an illustration ‘of the lack of controlling influence of even a clear Opinion of the Court’.166 However, it is perhaps preferable to end this part of the discussion with the following, more optimistic, observation from the same author: [T]hough it would be easy to view [the reception by the non-judicial organs of the Admissions and Expenses cases] as evidence of the United Nations’ unconcern with the law, it would probably be a mistake to do so. Each, it is true, may be represented in that light . . . [But t]he fact remains that in each case the determination of the matter by the Court played a role. It established a framework within which negotiations could take place and precluded most Members from asserting the direct contrary of what the Court had said. They remain as examples of the operations, albeit imperfect, of law in the activities of international organizations. They remind us that the law by itself is not a totally controlling element. But this reminder cannot deprive the law of its value, or us of a justification for pursuing its study. We must merely be aware of its shortcomings.167

161 Franck (n 75) describes this as a package deal for the simultaneous admission of sixteen members ‘in all but form’ (para 10). The Security Council passed a draft resolution put forward by the USSR by which it recommended the admission of sixteen countries (SC Res 109 (14 December 1955)). The countries were discussed separately by the Security Council and while a single resolution was passed, the Security Council ‘approved each of the applications listed in the USSR draft and adopted the draft resolution as a whole’ (United Nations, Repertoire of the Practice of the Security Council 1952–1955, 98). 162 E Lauterpacht, ‘The Development of the Law of International Organization by the Decisions of International Tribunals’ (1976) 152 Recueil des Cours 381, 392. 163 Repertory of Practice of United Nations Organs, Supplement No 3 (n 131) 24. 164 Repertory of Practice of United Nations Organs, Supplement No 3 (n 131) 25. 165 Lauterpacht (n 162) 392. 166 Lauterpacht (n 162) 392. 167 Lauterpacht (n 162) 392.


224

The Development of International Law by the ICJ

4. The Court’s powers vis-à-vis the non-judicial principal organs 4.1 Limits on the competences of the principal organs The renewed vigour of the Security Council in the post-1989 period gave rise to reflection on the Court’s relationship with the other principal organs.168 The Court’s role as a principal organ of the United Nations gave rise to the argument that, in case of normative conflict with the other principal organs, and in particular the Council (even when acting under Chapter VII of the Charter), the Court may review judicially the decisions of those organs.169 This role could fall only to the Court within the United Nations system, given the ‘immense importance and sensitivity that, quite frankly, one cannot imagine any other tribunal dealing with’.170 Pursuant to this argument, the Court has the competence under the Charter to review the legality of Security Council resolutions that arise incidentally in contentious proceedings between states. This scenario would arise in cases where a Security Council resolution is part of the body of the applicable law which the Court is called upon to apply.171 In such a situation, the Court would be required to determine whether a resolution is legal or void, since ‘the Court, as a legal organ, cannot cooperate with a resolution which is clearly void, contrary to the rules of the Charter, or contrary to the principles of law’.172

4.2 A priori restrictions on judicial review Finding limits in the substantive law is not difficult: they could be said to exist through the application of jus cogens norms to the institutional law of the UN. Such 168 That the Court has the power to review judicially the acts of specialized agencies is not questioned. It has done so in two cases, in Constitution of the Maritime Safety Committee of the InterGovernmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 171, where it reviewed an election to membership of one of the Assembly of the Committee to conclude that the election could not be justified by reference to the Organization’s constituent instrument; and in Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan) [1972] ICJ Rep 46, where, in considering a decision of the ICAO Council challenged by India as non-constitutional, the Court had to interpret the Organization’s constituent instrument and concluded that the Council was indeed competent so to do. But these are specialized agencies, not principal organs, and the constitutional relationship of the Court is different in respect of the latter. 169 See JE Álvarez, ‘Judging the Security Council’ (1996) 90 AJIL 28; B Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?’ (1999) 10 EJIL 517; MJ Matheson, ‘ICJ Review of Security Council Decisions’ (2004) 36 George Washington Int L Rev 615; D Akande, ‘The International Court of Justice and the Security Council: Is there Room for Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46 ICLQ 309; N Lavranos, ‘UN Sanctions and Judicial Review’ (2007) 76 Netherlands JIL 1; M Bedjaoui, The New World Order and the Security Council: Testing the Legality of its Acts (Dordrecht: Martinus Nijhoff, 1994); E de Wet, ‘Judicial Review as an Emerging General Principle of Law and its Implications for the International Court of Justice’ (2000) 47 Netherlands Int L Rev 181. 170 R Higgins in M Evans, Remedies in International Law: The Institutional Dilemma (Oxford: Hart Publishing, 1998) 7. 171 D Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of Justice (The Hague: Kluwer, 2001) 270. 172 Separate Opinion of Judge De Castro in Namibia (n 14) 180.


United Nations Law

225

a conclusion would flow naturally from the doctrine of nemo plus juris transfere potest quan: if states cannot escape jus cogens obligations themselves then they certainly cannot create an organization unbound by it.173 Thus, it seems clear that these norms cannot be set aside by member states of the United Nations like jus dispositivum: the Council is not, as was memorably claimed by John Foster Dulles, ‘a law unto itself ’,174 unbounded by legal principles. Yet one need not situate limits on the Council’s authority by reference to jus cogens norms: Article 2 of the Charter stipulates that the principles contained therein bind both the Organization and its membership; and moreover, all principal organs are limited by the rules of general international law,175 if not by Article 1, paragraph 1 of the Charter itself, which recalls that among the purposes of the Organization is the settlement of disputes in conformity with justice and international law.176 Even those who advocate judicial review of the Council’s acts by the Court admit a number of problems, not least the fact that, because the Council is unable to appear before the Court under Article 34(1) of the Statute, for the Court to review its acts would raise questions relating to the audi alteram partem principle. But there are other a priori restrictions on judicial review. In the Aegean Sea Continental Shelf Judgment,177 the Court seemed to endorse the principle of litispendence;178 invoking this principle would restrict the possibility of judicial review when a matter has already been under review by the Security Council. Yet in Tehran Hostages, the Court concluded that there was nothing irregular in the ‘simultaneous exercise of [the] respective functions’ of the Security Council and Court.179 Moreover, in the jurisdictional phase of Nicaragua, the Court confirmed its earlier finding in Certain Expenses that, in acting under Chapter VII, the United Nations Charter confers not exclusive, but only primary competence on the Security Council; the Court’s ‘purely judicial function’180 could therefore be complementary.181 This was reflected in Schweigman’s conclusion based, inter alia, on Lockerbie that ‘the seizure of a matter

173 A Tzanakopoulos, Disobeying the Security Council (Oxford: OUP, 2011) 80. See also E De Wet, ‘Judicial Review of the United Nations Security Council and General Assembly through Advisory Opinions of the International Court of Justice’ (2000) 10 Swiss Rev Intl and Eur L 237, 263–4. 174 J Foster Dulles, War or Peace (New York: Macmillan, 1950) 194–5. The same view was memorably expressed in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Further Provisional Measures) [1993] ICJ Rep 325, Separate Opinion of Judge ad hoc Sir Elihu Lauterpacht, para 100: ‘The concept of jus cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot—as a matter of simple hierarchy of norms—extend to a conflict between a Security Council resolution and jus cogens. Indeed, one only has to state the opposite proposition thus—that a Security Council resolution may even require participation in genocide—for its unacceptability to be apparent.’ 175 M Shaw, ‘The Security Council and the International Court of Justice: Judicial Drift and Judicial Function’ in Muller et al (eds) (n 56) 219, 225. 176 Amr (n 36) 282. 177 Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3; see Amr (n 36) 282. 178 Schweigman (n 171) 219. 179 United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, 21. 180 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) ( Jurisdiction and Admissibility) [1984] ICJ Rep 392, para 95. 181 Nicaragua v USA ( Jurisdiction and Admissibility) (n 180) para 95.


226

The Development of International Law by the ICJ

by the Security Council does not in itself preclude the Court from adjudging the same matter’.182 It is true that the Court has never defied the Council and declared its action either to be contrary to the Charter or to international law. But one cannot characterize the Court’s perception of its role as purely deferential, as its reticence does not settle the question of the relationship between the Council and the Court, which in fact is rather indeterminate, given the silence of the Charter and the Statute in relation to any such power.183 In fact, on at least two occasions, in the provisional measures phase of Lockerbie and in the Kosovo Advisory Opinion, the Court has, through its advisory function, engaged directly with interpreting the substance of Security Council resolutions, raising questions as to the scope of its activity and accusations of quasi-judicial review.

4.3 The Court and intra-institutional dialogue There is a better view—one that maintains the Charter’s importance as a constitutive document governing the internal functioning of an international organization and the principal organs of which it is composed, and is line with that of the Court itself: that is, to suggest that the Court remains engaged in a form of intrainstitutional discourse with the Council. Thus, by putting to one side for a moment the confrontational concept of the Court judicially reviewing Council action, one may focus on the Court’s own perception of its institutional function: namely to contribute, but not to resolve, issues of a wider significance to the United Nations and its non-judicial principal organs, or issues falling more directly within the competence of those organs.184 In two such cases, Lockerbie and Kosovo, the potential to review came into play; how the Court addressed the issues raised in these cases helps us to discern how the Court perceives its function within the United Nations system.

4.3.1 Towards the brink of judicial review: Lockerbie The Lockerbie cases concerned the extradition of two Libyan intelligence officers suspected of involvement in the bombing of Pan Am Flight 103 over Lockerbie, Scotland. The United States and the United Kingdom requested the extradition of the suspects and, when this did not occur, urged the Council to adopt Resolution 731 (1992),185 under Chapter VI, calling on Libya to do so. Libya then filed a request for provisional measures before the Court, claiming that the extradition

182

Schweigman (n 171) 261. De Wet (n 169) 182. Cf Akande (n 169) 326, who suggests that the ‘[l]ack of an express power of review is not . . . determinative . . . What is more important is a lack of an express prohibition from engaging in judicial review.’ See also Matheson (n 169) 620. 184 The most obvious being the determination, under Art 39 of the Charter, of whether there exists a threat to international peace and security. 185 SC Res 731 (21 January 1992). 183


United Nations Law

227

requests violated Libya’s rights under the 1971 Montreal Convention.186 Immediately prior to the Court’s decision on provisional measures, the Council adopted Resolution 748 (1992),187 this time under Chapter VII, demanding the surrender of the suspects.188 In view of the fact that latter resolution was established under Chapter VII, the majority upheld its binding effect, concluding that Libya’s claimed rights under the Montreal Convention were no longer ‘appropriate for protection by the indication of provisional measures’.189 The Court’s 1993 decision would suggest that the question of judicial review was immaterial. Yet in 1998, the Court dismissed the respondents’ preliminary objections to the Court’s jurisdiction and the admissibility of Libya’s claim.190 Of particular interest was the Court’s treatment of the respondents’ objection that Libya’s claim was inadmissible because Resolutions 731 (1992), 748 (1992), and 833 (1993)191 superseded Libya’s rights under the Montreal Convention, and thus the dispute was in fact now governed by these decisions of the Council.192 The Court dismissed this objection, concluding that the resolutions in question were adopted after the filing of the Application, and that as such, it was not deprived of jurisdiction under the rule that, if the Court has jurisdiction at the date of the Application, subsequent resolutions cannot affect this.193 It therefore arguably reserved the matter of the validity of the Council’s actions to the merits phase;194 however, that phase was never reached due to Libya’s decision in 2003 to comply with the Council’s resolutions and its subsequent withdrawal of the case from the Court’s General List. Arguably, the Court’s dismissal of this preliminary objection could be interpreted as an indirect challenge to the supremacy of the Council when acting under Chapter VII. In fact, allusions to the Court’s ‘challenge’ were identified in some separate and dissenting opinions, which were in substance far more deferential to the supremacy of the Security Council acting under Chapter VII. Erstwhile President, then-Judge ad hoc195 Sir Robert Jennings argued the inadmissibility of Libya’s application on precisely the basis that, when the Council exercised its discretionary power under Article 39 of the Charter in respect of a perceived threat to international peace and security, ‘it is not for the principal judicial organ of the United Nations to question that decision, much less to substitute a decision of its own’.196 President Schwebel suggested that ‘[t]he Court . . . is particularly without 186 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (adopted 23 September 1971, entered into force 26 January 1973), 974 UNTS 178. 187 SC Res 748 (31 March 1992). 188 SC Res 748 (n 187), operative clause 1. 189 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v UK ) (Provisional Measures) [1992] ICJ Rep 3, paras 39–40. 190 Lockerbie (Preliminary Objections) (n 34). 191 SC Res 833 (27 May 1993). 192 See, generally, C Gray, ‘The Lockerbie Case Continues’ (1998) 57 CLJ 433, 434. 193 Lockerbie (Preliminary Objections) (n 34) paras 44–5. 194 Schweigman (n 171) 270; S Chesterman, ‘An International Rule of Law?’ (2008) 56 AJCL 33123. 195 In these proceedings Judge Jennings was sitting ad hoc. 196 Lockerbie (Preliminary Objections) (n 34), Dissenting Opinion of Judge ad hoc Sir Robert Jennings 110.


228

The Development of International Law by the ICJ

power to overrule or undercut decisions of the Security Council made by it in pursuance of its authority under Articles 39, 41 and 42 of the Charter’.197 Schwebel thus considered that in no way is the Court to interfere in the Council’s ‘primary responsibility for the maintenance of peace’.198 Judge Herczegh considered that Libya’s claim was without object due to the passing of Security Council Resolutions 748 and 883,199 which he argued were relevant circumstances after the time of filing.200 The curious context of the Lockerbie cases suggests a multi-faceted approach. José Álvarez has argued that at both phases, the ICJ judges were engaged in ‘expressive review’:201 a highly deferential majority judgment tempered by statements of individual judges asserting limits to the Council’s authority.202 He has argued that individual judges were issuing a series of ‘cues’ to a ‘coordinate constitutional actor’, in the hope that the Security Council, in its future decision-making, would be more conscious of potential limits to its powers.203 Álvarez’s model suggests a form of intentional collective ambiguity on the part of the Court, recognizing the limits on the judicial power in participating in certain categories of disputes in the majority,204 whilst also intimating to the Council that its powers are not limitless.205 It is true that dissenting opinions can have a bearing on the interpretation of the majority’s findings, and certainly form part of the judgment as a whole,206 but it is perhaps overstating matters to suggest that the Court consciously coordinates the individual opinions of its judges so as to maximize dialogue with other organs of the United Nations. At best, the Court might be able to call upon the Council to self-censor,207 in an exercise of ‘normative restraint’208 over its own activities, to avoid a situation of potential conflict such as arose in Lockerbie.209 197

Lockerbie (Preliminary Objections), Dissenting Opinion of Judge Schwebel (n 34) 73. Lockerbie (Preliminary Objections), Dissenting Opinion of Judge Schwebel (n 34) 75. Lockerbie (Preliminary Objections), Dissenting Opinion of Judge Schwebel (n 34) 52. 200 Lockerbie (Preliminary Objections), Dissenting Opinion of Judge Schwebel (n 34) 52. The Court’s strict reliance on the situation at the date of filing is inconsistent with its opposite finding in Border and Transborder Armed Actions (Nicaragua v Honduras) [1988] ICJ Rep 95, para 66. 201 Álvarez (n 169) 28. 202 Álvarez (n 169) 30: for instance, Álvarez cites Judge Weeramantry’s Dissenting Opinion in Lockerbie (Provisional Measures), which had argued that the Council was bound by Art 24 to respect the principles and purposes of the UN Charter. 203 Álvarez (n 169) 30. 204 Álvarez (n 169) 30. 205 Although Judges Jennings (at 110) and Schwebel (at 76) conceded that the Council is subject to certain limitations, one cannot presume that, merely because the Court was willing to proceed to the merits on the possibility of reviewing Resolutions 746 and 883 (para 42 of the Judgment), it would be prepared to review their legality. 206 One of the present authors has suggested that the collective drafting process of the Court is designed primarily to project the authority of the Court as a body corporate, but that the function of dissenting opinions does have a bearing on the normative impact of its judgments: see GI Hernández, ‘The Collective Drafting Process’ in The International Court of Justice and the Judicial Function (Oxford: OUP, forthcoming) ch IV. 207 As Schwebel suggests in his Dissenting Opinion in Lockerbie (Preliminary Objections) (n 34) 76: ‘in many legal systems, national and international, the subjection of the acts of an organ to law by no means entails subjection of the legality of its actions to judicial review. In many cases, the system relies not upon judicial review but on self-censorship by the organ concerned . . . ’ 208 Álvarez (n 169) 30. 209 AF Perez, ‘The Passive Virtues and the World Court: Pro-Dialogic Abstention by the International Court of Justice’ (1997) 18 Michigan JIL 399 terms the Court’s practice in Lockerbie 198 199


United Nations Law

229

4.3.2 The chiaroscuro of judicial review: Certain Expenses, Namibia, and Kosovo Whatever the Court’s language in contentious cases, in several Advisory Opinions— notably Certain Expenses, Namibia, and Kosovo—the Court engaged directly with the interpretation of Security Council resolutions so as to elucidate their legal effects; although it did not declare any resolutions to be unlawful, this practice constitutes an indirect form of review of Security Council resolutions, allowing us to draw some generalizations about the relationship between the principal organs. As we have seen, in Certain Expenses, the General Assembly had to consider whether certain expenses incurred in the pursuit of UN operations in the Congo and Middle East, authorized by the Assembly as ‘expenses of the Organization’, did in fact qualify as such under Article 17(2) of the Charter.210 Any expenditure incurred for a purpose other than those found in Article 1 of the Charter could not be considered an expense of the Organization.211 From the outset the Court refused to read the possibility of judicial review into the Charter: In the legal systems of States, there is often some procedure for determining the validity of even a legislative or governmental act, but no analogous procedure is to be found in the structure of the United Nations. Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted . . . As anticipated in 1945, therefore, each organ must, in the first place at least, determine its own jurisdiction.212

Instead, the emphasis was on each organ’s power to ‘determine its own jurisdiction’.213 It is clear that, in expressly rejecting the existence of any judicial review function (and, by analogy, any domestic law analogy of division of executive, legislative, and judicial competences in the international legal order), the Court suggested that whatever limits to the discretionary powers of the other principal organs may be, it was not to the Court that they would be accountable. Similarly, in Namibia the Court, mandated by the Security Council, was asked a question that required it to provide an interpretation of Security Council Resolution 276. Although it stated vehemently that it did not possess powers of judicial review,214 ultimately it proceeded to conclude that Resolution 276 was ‘adopted in

‘pro-dialogic abstention’, a technique designed to foster intra-institutional dialogue between the major Nations organs. 210 GA Res 1731 (XVI) (20 December 1961). Art 17, para 2 of the Charter concerns the General Assembly’s overall responsibility for the Organization’s budget. 211 Certain Expenses (n 8) 167. 212 Certain Expenses (n 8) 168. In some respects even declining to claim a role as the ultimate interpreter of the Charter: ‘Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted.’ Robert Y Jennings, ‘International Court of Justice: Advisory Opinion of July 20, 1962’ (1962) 11 ICLQ 1169, 1177, who notes that the Court left a pointed silence as to where final interpretative authority lay. 213 Certain Expenses (n 8) 168. On the ‘power to determine its jurisdiction’ of each organ, see KR Simmonds, ‘The UN Assessments Advisory Opinion’ (1964) 13 ICLQ 854, 874. 214 Namibia (n 14) para 89.


230

The Development of International Law by the ICJ

conformity with the purposes and principles of the Charter and in accordance with . . . Articles 24 and 25’.215 The very fact that it reviewed the resolution led to intimations at the time that it had veered dangerously close to overstepping its powers.216 Yet the Court’s reasoning should not be misrepresented. Whatever the Court’s abstract rules for the interpretation of the Council’s will, in practice it looked beyond the text, deciding simply to consider the preamble to Resolution 269 (1969),217 recalled eo nomine in the preamble to Resolution 276.218 This approach permitted the Court to conclude that Resolution 276 created binding obligations requiring states to recognize South Africa’s presence in Namibia as illegal despite the Council’s non-invocation of Chapter VII.219 The recognition that resolutions not taken under Chapter VII may also be binding on member states was perhaps the most ‘revolutionary feature’ of the Opinion,220 going beyond the general view on expanding the Council’s authority under the Charter. In this respect it embodies a concrete manifestation of the Court’s duty of cooperation with the principal organs in its advisory capacity, and to assist requesting organs.221 Had the Court done otherwise and found that the Council lacked the intention to bind states, it would have substantially hindered the Council’s performance of its functions. Although Namibia represented a sort of watershed in respect of interpretation of Security Council resolutions and their binding effects, the Court went further in Kosovo, challenging the Council’s primary responsibility for the maintenance of international peace and security in a manner departing from its traditionally deferential approach to the Council.222 The Court was requested by the General Assembly to consider whether the declaration of independence issued on 17 February 2008, declaring Kosovo to be an ‘independent and sovereign State’,223 was ‘in accordance with international law’.224 After deciding that it had jurisdiction, and that there were no reasons for it to exercise its discretion to refuse to

215

Namibia (n 14) para 115. J Dugard, ‘Namibia (South West Africa): The Court’s Opinion, South Africa’s Response, and Prospects for the Future’ (1972) 11 Columbia J Transnatl L 14, 32. See also the Dissenting Opinion of Judge Gros in Namibia (n 14) para 18, where he complained that ‘[i]t used not to be the Court’s habit to take for granted the premises of a legal situation the consequences of which it has been asked to state’. 217 SC Res 269 (12 August 1969): the Council had referred to ‘its responsibility to take necessary action to secure strict compliance with the obligations entered into by States Members of the United Nations under the provisions of Article 25 of the Charter’. 218 SC Res 276 (30 January 1970). 219 AW Rovine, ‘The World Court Opinion on Namibia’ (1972) 11 Columbia J Transnatl L 203, 230. 220 Dugard (n 216) 30; Oliver J Lissitzyn, ‘International Law and the Advisory Opinion on Namibia’ (1972) 11 Columbia J Transnatl L 50, 65. 221 See generally I Petculescu, ‘The Review of the United Nations Security Council Decisions by the International Court of Justice’ (2005) 52 NILR 167, 182. 222 As had been demonstrated in the Admission of a State (n 25) and Certain Expenses (n 8) Opinions particularly: see 3.1. 223 ‘Kosovo Declaration of Independence’ Pristina (17 February 2008): reproduced in Kosovo (n 14) paras 74–5. 224 GA Res 63/3 (8 October 2008). 216


United Nations Law

231

answer the request,225 the Court concluded that the declaration did not violate the applicable law,226 namely general international law, Security Council Resolution 1244227 (1999), and the Constitutional Framework of 2001.228 The majority drew two important conclusions on compliance with Resolution 1244. First, it concluded that the declaration of independence did not violate Resolution 1244 because that resolution did not determine, or preclude the settlement of, the final status of Kosovo,229 whereas the declaration did; as such, ‘the two instruments operate[d] on a different level’ and there was no conflict.230 Secondly, it held that the addressees of 1244 did not include the authors of the declaration, and thus 1244 did not ‘bar . . . [them] . . . from issuing a declaration of independence from the Republic of Serbia’.231 The Court, rejecting calls to decline to answer on the basis that it would be inappropriate to determine the legal effects of a Security Council resolution through a request from the General Assembly,232 concluded that the declaration did not violate Resolution 1244. The Court’s approach was cautious: it concluded merely that the language of Resolution 1244 was ‘at best ambiguous’ vis-à-vis the Federal Republic of Yugoslavia’s territory, and found that 1244 did not preclude a final settlement to the situation in Kosovo.233 Unlike in Namibia, where the Court used a contextual mode of interpretation to arrive at an interpretation of Resolution 276 that was consistent with the Council’s will,234 in Kosovo the Court interpreted the will of the Council restrictively, to the point where, in effect, it excluded the application of Resolution 1244 to the relevant facts.235 This was achieved in part through the Court’s reformulation of the Assembly’s request to leave open the question of the authors of the declaration of independence of Kosovo.236 This reformulation arguably transformed the outcome,237 or at the

225

226 Kosovo (n 14) para 122. Kosovo (n 14) paras 28, 48. SC Res 1244 (10 June 1999), which confirmed the ceasefire in Kosovo and promulgated a UNsupervised interim territorial administration over Kosovo that continues to the present day. 228 ‘Regulation on a Constitutional Framework for Provisional Self-Government in Kosovo’, UNMIK Regulation 2001/9 (15 May 2001), UN Doc UNMIK/REG/2001/9. 229 Kosovo (n 14) para 114. 230 Kosovo (n 14) para 114. 231 Kosovo (n 14) paras 115–19. 232 A point highlighted by Vice-President Tomka (para 7), Judge Bennouna (para 13), and Judge Skotnikov (para 9) in their Dissenting Opinions in Kosovo (n 14). 233 Kosovo (n 14) para 118. 234 See the Court’s method of interpreting Security Council resolutions, 3.3. 235 MG Kohen and K Del Mar, ‘The Kosovo Advisory Opinion and UNSCR 1244 (1999): A Declaration of “Independence from International Law”?’ (2011) 24 Leiden JIL 109, 123. At 109, they criticize the Opinion strongly: in deciding that Resolution 1244 neither prohibited the solution of Kosovo’s final status, nor bound the authors of the declaration, the Court ‘failed to uphold [its] legally binding provisions’. 236 Kosovo (n 14) paras 52–3. 237 A Mills, ‘The Kosovo advisory opinion: if you don’t have anything constructive to say . . . ’ (2011) 70 CLJ 1, 2; J Vidmar, ‘The Kosovo Advisory Opinion Scrutinized’ (2011) 24 Leiden JIL 355, 378. 227


232

The Development of International Law by the ICJ

very least made it less controversial.238 Arguably, through its denial of the full legal effects of Resolution 1244,239 the ICJ exercised a power akin to judicial review (or at least having similar effects), transforming the resolution through the interpretative exercise into an instrument of a wholly different scope. Through the Court’s finding that the addressees of Resolution 1244 were limited in nature, which led to its arriving at its conclusions on Kosovo’s final status, the formal validity of 1244 was preserved whilst its substantive content was hollowed out. It is that reformulation that represents a departure for the Court from its approach in Namibia in respect of Security Council resolutions,240 as regards taking into account relevant sources and means of interpretation beyond the text. Although its language in paragraphs 94 and 95241 seemed to confirm its earlier approach in Namibia, the Court’s formalism rendered irrelevant the guarantees of territorial integrity for the FRY contained in the text of the preamble to Resolution 1244.242 Moreover, the Court’s stated attempt to discern the ‘object and purpose’ of Resolution 1244243 would presumably have required it to consider ‘statements by representatives of members of the Security Council made at the time of their adoption’,244 as well as the subsequent practice of states and the United Nations.245 Recourse to such means of interpretation was in some respects excluded.246 Moreover, in a letter addressed by the President of the Security Council to the Secretary-General (called the ‘Guiding Principles’), it was suggested that a unilateral solution to the political crisis in Kosovo was not permitted.247 Yet such subsequent practice was given summary treatment by the Court. In the final analysis, even if the Court did not invalidate Resolution 1244, in this particular case the Court may have stepped beyond its judicial function by denying any legal effect to that resolution, thus resolving a situation that had been left open by the Council. Indeed, this Opinion may, in the long run, come to represent the beginnings of a break with the Court’s heretofore deferential posture towards the principal organs.

238 D Jacobs, ‘International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, advisory opinion of 22 July 2010’ (2011) 60 ICLQ 799, 810. 239 Kohen and Del Mar (n 235) 109. 240 Kohen and Del Mar (n 235) 124; R Falk, ‘The Kosovo Advisory Opinion: Conflict Resolution and Precedent’ (2011) 105 AJIL 50. 241 Reproduced above in 3.3. 242 Kohen and Del Mar (n 235) 123. 243 Kosovo (n 14) paras 96, 100, 118. 244 Kosovo (n 14) para 98. 245 Kosovo (n 14) para 98. 246 Kohen and Del Mar (n 235) 123. It should be noted that Professor Kohen acted as counsel for Serbia in that case, which perhaps makes his hostility to the Opinion understandable. Judge Skotnikov, para 13 of the Opinion, made express reference to the statements of certain Council members at the time of adoption of Resolution 1244, suggesting that the resolution would apply to all Kosovo Albanians in that territory (thus surely binding the authors of the declaration). 247 As annexed to the letter dated 10 November 2005 from the President of the Security Council addressed to the Secretary-General, UN Doc S/2005/709.


United Nations Law

233

5. Conclusion The Court’s contribution to understanding the institutional structures of the United Nations is in keeping with its role as the principal judicial organ of the Organization. It has helped to illuminate and clarify the interstices left in the Charter, especially with respect to the personality of the Organization, the competences left to its principal organs, and of course, the Charter itself. In its advisory capacity, it seems fair to conclude that it has indeed discharged the role of trusted advisor. Despite the fact that the Court’s opinions are not binding, they are by and large respected, both by the requesting organs and other United Nations organs, as well as generally by states. It is true that the rate of advisory opinions is declining and that the contribution of the Court to the institutional law of the United Nations is in part retrospective. But perhaps as a result of this, the Court and the Organization have acquired further authority; one could even argue that the busier docket of the Court as regards contentious cases is in part due to the authority it has gained through the giving of advisory opinions. In any event, the relative maturity of the Organization has allowed for certain questions to be settled through practice and the passage of time. Some serious questions remain open: the Court continues to claim that it has no power to review resolutions of the Security Council, even as it actively engages in their interpretation. Organs of course remain free to disregard the opinions of the Court, thus undermining its authority. Despite the lack of centralized interpretative authority, however, the Court’s contribution to clarifying the institutional law of the Organization has been one of modest persuasion, through clarifying ambiguities in the Charter and systematizing the practice of organs and member states. In the final analysis, the Court’s approach, in particular through the medium of the advisory opinion, has been one of continuous incrementalism, engaging in a meaningful dialogue with other principal organs and accommodating conflicting perspectives.


This page intentionally left blank


PART VI ARMED CONFLICT


This page intentionally left blank


11 The International Court of Justice and the Use of Force Christine Gray

1. Introduction The International Court of Justice (ICJ, or ‘the Court’) has played a central role in the development of the law on the use of force. It is now beyond question that the Court may decide cases on the politically sensitive issue of armed conflict—even of an ongoing armed conflict. Cases about the use of force, which before the UN era might have been regarded as affecting the vital interests of states and so as unsuitable for adjudication, are now undoubtedly admissible before the Court. Moreover, the Security Council’s primary role in the maintenance of international peace and security,1 and its special functions with regard to self-defence,2 do not exclude ICJ jurisdiction over cases with which the Security Council is concerned. The Court has given judgment on the merits in just four cases—Corfu Channel,3 Nicaragua,4 Oil Platforms,5 and DRC v Uganda6—but many more cases arising out of the use of force, or indirectly involving the use of force, have been taken to the Court.7 It has 1

2 Art 51 UN Charter. Art 24 UN Charter. Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4. 4 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14. 5 Oil Platforms (Iran v USA) [2003] ICJ Rep 161. 6 Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168. 7 In other contentious cases directly concerning the use of force, the Court did not reach a decision on the merits as regards the use of force. It had no jurisdiction in the Aerial Incident cases of the 1950s, the Legality of Use of Force cases involving Yugoslavia against ten NATO States or the Aerial Incident of 10 August 1999 (Pakistan v India) (Jurisdiction) [2000] ICJ Rep 12; nor did it have jurisdiction in Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep 6 or Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia) (Preliminary Objections) Judgment of 1 April 2011 (<http://www.icj-cij.org/docket/files/140/16398.pdf> (accessed 17 May 2013)). Two other cases, Aerial Incident of 3 July (Iran v USA) Order of 9 April 1998 and Border and Transborder Armed Actions (Nicaragua v Honduras) (Order) [1992] ICJ Rep 222 were withdrawn. The Court avoided a decision on responsibility for unlawful use of force arising out of a boundary dispute in Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) [2002] ICJ Rep 303. It faced a similar combination of issues in the recent boundary case of Territorial and Maritime Dispute (Nicaragua v Colombia) Judgment of 19 November 2012 3


238

The Development of International Law by the ICJ

also decided on provisional measures in several of these cases. Two of the Court’s advisory opinions have discussed the legality of the use of force: the Nuclear Weapons Opinion8 and the Wall Opinion.9 However, the ICJ’s role in the development of the law has proved extremely controversial. Overall it has taken a strict view of the prohibition of force. Its judgments have been harshly attacked, not only by respondent states unhappy with the result when they have been defeated in cases before the Court, but also by commentators dissatisfied with what they see as the Court’s avoidance of difficult issues or with its strict views on the use of force. The attacks on the Court by respondent states are understandable, even if not justified. The USA, as defeated respondent in Nicaragua and Oil Platforms, has expressed its fierce rejection of the Court’s reasoning. It has also submitted statements arguing against the jurisdiction or the propriety of the two advisory opinions concerning the use of force and, when the Court nevertheless chose to give an opinion, it has criticized the Court’s view of the law. Not surprisingly, compliance with the Court’s judgments and opinions on the use of force has proved problematic.10 As for the commentators who attack a particular judgment or opinion, they often echo the dissenting or separate opinions of the judges of the nationality of the defeated state. Those who support the Court’s decision in a particular case are less likely to write about that case, and the academic literature may give the misleading impression that a decision is more controversial than it actually is.

2. The Court’s first case on the use of force: Corfu Channel The ICJ’s first case concerned the use of force. This was the Corfu Channel case in which the UK brought an action against Albania for the damage done by mines to British warships passing through an international strait—the Corfu Channel—in Albanian waters. The Security Council recommended to the parties that they refer

(<http://www.icj-cij.org/docket/files/124/17164.pdf> (accessed 17 May 2013)) and the pending boundary case of Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (<http:// www.icj-cij.org/docket/index.php?p1=3&p2=1&code=crn&case=150&k=ec> (accessed 17 May 2013)). Certain other cases indirectly involving the use of force or arising out of the use of force were taken to the Court, but the Court did not consider this particular aspect in its judgment on the merits in Fisheries Jurisdiction (UK v Iceland) (Merits) [1974] ICJ Rep 3, United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, or Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43. The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) is currently before the Court; Croatia’s application accused the Federal Republic of Yugoslavia of aggression. 8 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. 9 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 10 A Llamazon, ‘Jurisdiction and Compliance in Recent Decisions of the International Court of Justice’ (2007) 18 EJIL 815; C Schulte, Compliance with the Decisions of the International Court of Justice (Oxford: OUP, 2004).


The Use of Force

239

the dispute to the Court, and ‘undoubtedly intended that the whole dispute should be decided by the Court’.11 On the merits, the Court pronounced first on Albania’s responsibility. It held that Albania was responsible for the damage caused by the mines to the British warships on the basis of the ‘general and well-recognized principle’ of ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’.12 This principle has since been invoked in many different contexts. With regard to the use of force, it has been relied on to argue that the principle of non-intervention includes a ‘duty of vigilance’ not to acquiesce in, or to tolerate, subversive activities directed towards the violent overthrow of the regime of another state.13 It has also been used in a more far-reaching argument by those who seek to widen the right of self-defence to allow the use of force against non-state actors operating from the territory of another state.14 Albania counterclaimed that the UK had violated its sovereignty in Operation Retail (1946) when it sent minesweepers to the Corfu Channel to secure evidence as to who had laid the mines which had harmed the British ships. With regard to the counterclaim, the Court implicitly upheld the prohibition of the use of force under the new UN Charter, and famously rejected a ‘policy of force’. It was not justified for the UK to invoke a new and special application of the theory of intervention, by means of which the state intervening could secure possession of evidence in the territory of another state in order to submit it to an international tribunal and thus facilitate its task. The alleged right of intervention was a manifestation of a policy of force which had given rise to serious abuses in the past and which would be reserved for the most powerful states. Nor did the Court accept that Operation Retail could be justified on the basis of the doctrines of self-protection or self-help: ‘between independent States, respect for territorial sovereignty is an essential foundation of international relations.’15 The Court clearly adopted a strict approach to the law on the use of force in this case. The onus was on the UK to justify its use of force. The Court rejected the UK’s claims to be acting on behalf of the international community in its forcible intervention; it also rejected the UK’s argument for a narrow interpretation of the prohibition of the use of force (codified in Article 2(4) of the UN Charter) to allow the use of force which did not aim to overthrow a government or seize a state’s territory.16 Commentators such as Greenwood have concluded that the Court was rejecting a restrictive interpretation of Article 2(4).17 The Court has continued to take this approach in later cases.

11

12 Corfu Channel (n 3) 22–3. Corfu Channel (n 3) 26. 14 See 6.6. 15 Corfu Channel (n 3) 35. DRC v Uganda (n 6). See 5.2 16 See C Gray, ‘A Policy of Force’ in K Bannelier, T Christakis and S Heathcote (eds), The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (Abingdon: Routledge, 2011) 226. 17 C Greenwood, ‘The ICJ and the Use of Force’ in AV Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice (Cambridge: CUP, 1996) 373. 13


240

The Development of International Law by the ICJ

3. The language of the Court in Corfu Channel and subsequent cases It is true that the language of the Judgment did not expressly refer to Article 2(4) of the UN Charter. Rather, the Court pronounced on the legality of the UK’s use of force in the terms of Albania’s counterclaim, holding in the dispositif (the final, operative part of its Judgment) that ‘the UK violated the sovereignty’ of Albania.18 This choice of language was the subject of some controversy at the time. Judge ad hoc Ecer in his Dissenting Opinion said that the role of the Court as the juridical instrument of the UN was to promote peaceful relations; accordingly it should have specifically mentioned Article 2(4) and Article 42 of the UN Charter. Other judges expressly referred to the provisions of the Charter and stressed the impact of the new Charter regime.19 The Court has shown similar caution in its language concerning the legality of the use of force in its later decisions also. It has not referred expressly to the UN Charter in its dispositifs. This self-restraint has produced divisions among the judges of the Court as it did in the Corfu Channel case. In the Oil Platforms case the Court again used careful language in its dispositif. This case arose out of the 1980–88 IranIraq conflict, and in particular out of the USA’s role in the Tanker War in the Gulf. Iran brought an action against the USA for its use of force against Iranian oil platforms; the USA claimed that it was acting in self-defence against Iranian missile and mine attacks on its shipping, in particular for the attacks on the US-flagged Sea Isle City and the US naval vessel, the Samuel B Roberts. Iran asked the Court to determine that the US use of force was unlawful under the bilateral 1955 Treaty of Amity. The USA justified its use of force as measures ‘necessary to protect its essential security interests’ under Article XX of the treaty; in this context it relied on its right of self-defence in response to Iranian armed attacks on US vessels in the Gulf. The Court went out of its way to pronounce on the issue of self-defence in its Judgment,20 but the dispositif employed the language of the 1955 treaty which gave the Court its jurisdiction. It said only that the USA’s actions could not be justified as measures ‘necessary to protect its essential security interests’ under Article XX of the treaty. The Court did not expressly refer to the UN Charter in its dispositif. In contrast, some of the judges regretted that the Court had not been more emphatic and explicit in its language. The case was being heard at a time of bitter controversy over the legality of the possible use of force against Iraq. Three judges in their separate and dissenting opinions said that the Court should have reaffirmed the fundamental rules of the Charter: it should have expressly stated that the USA’s actions were in violation of specific provisions of the UN Charter on the use of force.21 18

Corfu Channel (n 3) 36. Corfu Channel (n 3) Separate Opinion of Judge Alvarez 39; Dissenting Opinion of Judge Krylov 68. 20 See 6. 21 Oil Platforms (n 5) Dissenting Opinion of Judge Elaraby 290; Separate Opinion of Judge Simma 324; and Separate Opinion of Judge Rigaux 362. 19


The Use of Force

241

The most striking case showing the caution of the Court with regard to its choice of language on the illegality of a use of force is DRC v Uganda. This case arose out of the involvement of Uganda in a complex conflict in the DRC (1998–2003). Uganda did not contest the Court’s jurisdiction under Article 36(2) of the Statute. The DRC had expressly requested the Court to find Uganda guilty of an act of aggression within the meaning of the Definition of Aggression22 and of the jurisprudence of the ICJ, contrary to Article 2(4) of the UN Charter.23 Uganda itself had not argued in its Pleadings that such a determination was outside the powers of the Court. Nevertheless, in its dispositif the Court did not find Uganda guilty of aggression; nor did it even make express reference to Article 2(4) of the Charter. Although the Court made an extremely strong finding in the reasoning of its Judgment that ‘the unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter’,24 in the actual dispositif the Court said only that ‘Uganda violated the principle of non-use of force in international relations and the principle of nonintervention’.25 Judge Simma in his Separate Opinion referred to this failure to refer to aggression or to Article 2(4) in the dispositif as a ‘deliberate omission’.26 He and Judge Elaraby both regretted the Court’s cautious choice of language in such a serious case.27 It may be that the Court made this choice of language in order to avoid controversy about its power to determine the existence of an act of aggression and/or about the possible consequences of such a determination.28

4. The Nicaragua case Although a large number of cases directly or indirectly involving the use of force have been brought to the Court, few of these have led to a judgment on the merits with regard to international law on the use of force. After the Corfu Channel case no cases on the use of force were decided on their merits until the Nicaragua case in 1986, decided at the height of the Cold War.29 In this case Nicaragua claimed that the USA had used force against the left-wing government in Nicaragua by its own military actions and by its support for the armed opposition (the contras). These actions violated the prohibition on the use of force and the principle of 22

23 DRC v Uganda (n 6) para 23. GA Res 3314/XXIX (14 December 1974). 25 DRC v Uganda (n 6) para 345. DRC v Uganda (n 6) para 165. 26 Separate Opinion of Judge Simma, DRC v Uganda (n 6) para 2. 27 Judge Simma said: ‘If ever there was a military activity before the Court that deserves to be qualified as an act of aggression, it is the Ugandan invasion of the DRC. Compared to its scale and impact, the military adventures the Court had to deal with in earlier cases . . . border on the insignificant.’ DRC v Uganda (n 6) para 2. 28 In Nicaragua (Jurisdiction and Admissibility) the Court seemed to accept the possibility that such a determination was a matter for the Security Council under Chapter VII of the UN Charter; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Jurisdiction and Admissibility) [1984] ICJ Rep 392, paras 89, 90, 94. 29 Although several other cases were brought to the Court: see n 7 above; Greenwood (n 17). 24


242

The Development of International Law by the ICJ

non-intervention. The USA challenged the admissibility of these claims on the ground that the subject matter was not suitable for the Court. But the Court rejected this,30 and these arguments were not raised again in the same form in later cases. The USA refused to play any further part in the Court’s proceedings after it lost at the jurisdictional stage.31 The USA’s strong resistance to the Court’s jurisdiction in this case (and later cases) may be an indication that it was less than confident in the strength of its case. The Nicaragua case is the most important decision by the Court on the substantive law on the use of force, especially on the right of self-defence and the law on intervention. It was heavily relied on in the two later cases on the use of force which reached decisions on the merits, Oil Platforms and DRC v Uganda. The Nicaragua case also raised certain important general issues about the Court’s role in cases concerning the use of force: first, its relation to the UN Security Council with regard to the maintenance of international peace and security; and second, its methodology in establishing the law on the use of force.

4.1 The relation of the Court and the Security Council Cases concerning the use of force may raise questions about the Court’s relation with the UN Security Council; these can arise both at the Preliminary Objections stage and at the Merits stage. The Court may first have to consider whether it is proper to decide a particular case concerning the use of force. During a case it may have to decide how far it may pronounce on questions of self-defence or aggression on which the Charter has given a special role to the Security Council. In Corfu Channel it was the Security Council itself which urged the parties to take the case to the Court, a clear indication that it saw the case as suitable for judicial resolution. But in later cases the relationship has provoked further questions. In Nicaragua the question came up as one of admissibility; the USA argued that the case was not suitable for the Court because Nicaragua’s claims concerned the unlawful use of force, breach of the peace and acts of aggression; it also had an impact on the right of self-defence. These were matters for the Security Council.32 The Court rejected these US arguments: the fact that a matter was before the Security Council did not prevent the Court from dealing with it. Nor did the fact that a case concerned ongoing armed conflict mean that the Security Council had exclusive responsibility for it or make it unsuitable for judicial decision.33 But Nicaragua left many other questions open. How far should the Court defer to Security Council determinations on questions of fact or classification of a conflict? Does the Court have a power to hold a Security Council resolution under 30

32–5.

Nicaragua (Jurisdiction and Admissibility) (n 28) paras 89–101; Nicaragua (Merits) (n 4) paras

31 Nicaragua (Merits) (n 4) paras 24–31; MN Leich, ‘Contemporary Practice of the United States Relating to International Law’ (1986) 80 AJIL 153, 163–5. As justification for its use of force, the USA had claimed collective self-defence; it set out its position in its Countermemorial at the Jurisdiction and Admissibility stage. 32 Nicaragua (Jurisdiction and Admissibility) (n 28) para 89. 33 Nicaragua (Jurisdiction and Admissibility) (n 28) paras 93–101.


The Use of Force

243

Chapter VII ultra vires? Is the Court able to hold that there has been an act of aggression in the absence of a Security Council determination? The Court has not decided these questions.34 They could have been discussed in DRC v Uganda because the Security Council had affirmed the DRC’s right of self-defence in Resolution 1234 (1999) and condemned the fighting between Uganda and Rwanda on the territory of the DRC in Resolution 1304 (2000), but the Court avoided venturing into these issues.

4.2 Methodology How does the Court establish what the law on the use of force is? What does the Court say about the identification and evolution of international law? The Court’s methodology necessarily affects its conclusions on the content of the law in this area, but it has given little express consideration to this question. In Nicaragua this question of how to identify the law received far more extensive consideration than in Oil Platforms and DRC.35 The Oil Platforms Judgment contains virtually nothing on the method by which the Court determined the law on the use of force. It made passing reference to Nicaragua and to customary international law on the meaning of ‘armed attack’;36 it simply referred to Nicaragua on the requirement that an armed attack reach a certain level of gravity;37 and it also invoked Nicaragua and Nuclear Weapons on the requirements of necessity and proportionality of the use of force in self-defence.38 Again in DRC, apart from its references to its own decisions and to General Assembly resolutions, the Court did not otherwise explain how it arrived at its conclusions. Even in its advisory opinions there is little consideration of this question. Thus in Nuclear Weapons the Court discussed the legality of the use or threat of nuclear weapons under the provisions of the UN Charter on the use of force in fourteen paragraphs.39 These simply set out the applicable provisions, Articles 2(4), 51 and 42. In asserting that self-defence must be necessary and proportionate the Court referred to Nicaragua. The Court treated the law as clear; its focus was on the application of the rules to nuclear weapons. In Nicaragua the Court was driven to consider this issue at greater length partly because of the US multilateral treaty reservation which meant that the Court had to make its decision on the basis of customary international law.40 Accordingly it devoted a separate section of its Judgment to this issue. Much of its reasoning on See C Gray, ‘The Use and Abuse of the ICJ’ (2003) 14 EJIL 867, 897. The Court noted that there was a considerable degree of agreement between the parties on the content of customary international law relating to non-use of force and non-intervention (Nicaragua (Merits) (n 4) para 184). It held that it nevertheless had to establish that their views reflected general international law, and to satisfy itself that the existence of the rule in the opinio juris of states was confirmed by practice. 36 Oil Platforms (n 5) para 51. 37 Oil Platforms (n 5) para 51. 38 Oil Platforms (n 5) para 51. 39 Nuclear Weapons (n 8) paras 137–51. 40 Nicaragua (Jurisdiction and Admissibility) (n 28) para 73; Nicaragua (Merits) (n 4) paras 42–56. See M Mendelson, ‘The International Court of Justice and the Sources of International Law’ in Lowe and Fitzmaurice (n 17) 63. 34 35


244

The Development of International Law by the ICJ

the identification of customary international law is uncontroversial and is set out in outline only, but there are also certain important statements on method within the Judgment which have divided commentators and which have important implications for contemporary debates on the use of force. These pronouncements by the Court in Nicaragua may be as significant as its findings on the substance of the law; they have certainly attracted considerable attention. Critical commentators have implicitly or explicitly rejected the Court’s approach in their attempts to argue that international law allows a wider use of force than that accepted by the Court, or that international law has altered since the decision in Nicaragua.41 The Court started its consideration of the applicable law in Nicaragua by adopting the traditional model that state practice and opinio juris were the constituent elements of customary international law.42 It identified opinio juris by reference to General Assembly resolutions—specifically the Declaration on Friendly Relations43 and the Definition of Aggression. This was somewhat controversial at the time, but is much less so today. These resolutions played a crucial role in Nicaragua with regard to the prohibition of the use of force and of intervention and to the scope of the right of self-defence. The Court’s conclusions on the substance of the law were to a large extent based on its interpretation of these resolutions. They continued to play a crucial role in DRC v Uganda, which involved very similar questions to those before the Court in Nicaragua. In its examination of opinio juris the Court in Nicaragua also took into account the statements of states. Thus, on the principle of non-intervention the Court relied on the principle of sovereign equality, the Corfu Channel case, the Declaration on Friendly Relations, declarations by states, and inter-American relations to establish opinio juris.44 With regard to state practice on the prohibition of the use of force, the Court said that absolutely rigorous conformity with the rule was not necessary. It was sufficient that the practice of states should in general be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. ‘If a State acts in a way prima facie incompatible with a given rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.’45 For many commentators all this is uncontroversial, but the Court’s approach is unacceptable to those who argue that the actual use of force by certain states is more important than the statements they make in justification of their use of force. There

41 See discussion by O Corten, The Law against War (Oxford: Hart Publishing, 2010) 4; T Ruys, ‘Armed Attack’ and Article 51 of the UN Charter (Cambridge: CUP, 2010) ch 1. 42 Nicaragua (Merits) (n 4) para 183. 43 Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV) (24 October 1970). 44 Nicaragua (Merits) (n 4) paras 202, 204. 45 Nicaragua (Merits) (n 4) para 186.


The Use of Force

245

are fundamental divisions between commentators on this issue.46 The Court’s approach makes it more difficult to argue that new rights to use force have emerged in customary international law. This can be seen clearly in Nicaragua where the Court considered whether the USA could claim a new right of forcible intervention to help armed opposition forces.47 It asked whether there were ‘indications of a practice illustrative of belief in a kind of general right for states to intervene . . . in support of an internal opposition in another state whose cause appeared particularly worthy by reason of the political and moral values with which it was identified’.48 The Court said that for such a general right to come into existence would involve a fundamental modification of the customary law of non-intervention. The significance of cases of state conduct prima facie inconsistent with the principle of nonintervention lay in the nature of the ground offered as justification. Reliance by a state on a novel right or an unprecedented exception might, if shared in principle by other states, tend towards a modification of customary international law. However, the Court found that states had not in fact justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign state for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law. In particular . . . the USA had not claimed that its intervention, which it justified in this way on the political level, was also justified on the legal level, alleging the exercise of a new right of intervention.49

The USA had, on the legal plane, justified its intervention expressly and solely by reference to the ‘classic’ rules involved, namely collective self-defence against an armed attack. Nicaragua too had not argued that solidarity with the opposition in El Salvador was a legal basis for an intervention. The Court concluded that there was no new right of intervention. In support of this conclusion, the Court said that the principle of non-intervention would certainly lose its effectiveness if intervention were to be justified by a mere request for assistance made by an opposition group in another state. It was difficult to see what would remain of the principle of non-intervention in international law if intervention which was already allowable at the request of the government were also to be allowed at the request of the opposition. This would permit any state to intervene at any moment in the internal affairs of another state.50 In short, the Court did accept that a change in the law might be possible. But it was crucial that a state should expressly claim a new right. Mere inconsistent behaviour would not help to form new customary international law; it would be a breach of the existing law. This position is clearly of great significance for the

46 48 50

47 Nicaragua (Merits) (n 4) paras 206–8. Corten (n 41) 4. 49 Nicaragua (Merits) (n 4) paras 207–8. Nicaragua (Merits) (n 4) para 206. Nicaragua (Merits) (n 4) para 246.


246

The Development of International Law by the ICJ

debate on how far the terrorist attacks of 9/11 and their aftermath have brought changes in the law of self-defence.51 Another source of controversy arising out of the Court’s identification of the legal rules on the use of force is that some of the Court’s assertions on the content of the law were made without detailed explanation. Thus, in Nicaragua the definition of ‘armed attack’ to exclude the supply of arms was dealt with in a brief manner. The Court simply referred to the ‘general agreement’ on the nature of acts that constitute ‘armed attacks’.52 Also it dealt only briefly with the extra requirements for collective self-defence: it relied on agreement between the parties on the requirements of necessity and proportionality; it asserted that there was no rule of customary international law permitting a third state to exercise the right of collective self-defence on the basis of its own assessment of the situation;53 it referred to regional treaties and customary international law to confirm that a request by the victim state was necessary.54 Again, in DRC v Uganda when the Court asserted that ‘Article 51 may justify a use of force only within the strict confines there laid down’ it did so without discussion.55 In Oil Platforms the Court treated as self-evident, first, the requirement that in the particular context intent was needed to establish an Iranian missile or mine attack against US shipping,56 and, second, that consideration of the target aimed at by the victim state was relevant to the question whether self-defence was necessary.57 Third, the Court stated as obvious the distinction between US-owned and US-flagged ships,58 and also between naval and merchant vessels.59 The USA was critical of the Court’s position on these points.60 Does the brevity of these statements of the law undermine their authority? It may be that the majority regarded all these findings as obvious. In Nicaragua they were consistent with state practice. In Oil Platforms and DRC v Uganda the Court had had the benefit of the parties’ arguments in their extensive Pleadings. The onus was on the state accused of the unlawful use of force to justify it, and the USA and Uganda failed to do so. The main focus in the rest of this chapter will be on the Court’s positions on the substantive law on the use of force in Nicaragua, Oil Platforms, and DRC v Uganda, and in the Nuclear Weapons and Wall Opinions.

5. The prohibition of the use of force 5.1 Status of the prohibition The Court has taken a clear line since the Corfu Channel case: the prohibition of the use of force in Article 2(4) is customary international law;61 it is the cornerstone of 51

52 Nicaragua (Merits) (n 4) para 195. See 6.6. 54 Nicaragua (Merits) (n 4) paras 196, 199. Nicaragua (Merits) (n 4) para 195. 55 DRC v Congo (n 6) para 148. 56 Oil Platforms (n 5) para 64. See further 6.2. 57 Oil Platforms (n 5) paras 74–6. 58 Oil Platforms (n 5) paras 64, 72. 59 Oil Platforms (n 5) para 72. 60 WH Taft, ‘Self-Defense and the Oil Platforms Decision’ (2004) 29 Yale JIL 295. 61 Nicaragua (Merits) (n 4) paras 187–90. Only a very few, such as John Bolton, Michael Glennon, and John Yoo, challenge this view. 53


The Use of Force

247

the Charter system;62 and the Court noted in Nicaragua that the parties had referred to it as jus cogens.63 Article 2(4) provides: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ The Court construes this as a strict prohibition. There is no sign in its jurisprudence of any support for the argument put forward by some commentators that the prohibition of the use of force in Article 2(4) should be construed to allow exceptions going beyond self-defence, such as limited military operations which do not aim to overthrow the government or to seize the territory of a foreign state and which further the purposes of the UN. Thus, in the Corfu Channel case the Court clearly rejected the UK claim that a state may unilaterally use force in what it claims is support for the Security Council or for the work of the ICJ. Defects in the Charter scheme do not justify a state in taking unilateral forcible action.64 In a famous passage, subsequently quoted in Nicaragua, it said that ‘the alleged right of intervention is the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever may be the present defects in international organization, find a place in international law’.65 Forcible intervention of the type claimed by the UK in Corfu Channel—to rescue evidence of mine-laying in the Corfu Channel in order to assist the ICJ—was still less admissible, ‘for, from the nature of things, it would be reserved for the most powerful states’.66 It is easy to see why the Court’s approach has not proved attractive to those who claim special rights for powerful states to use force ‘on behalf of the international community’ or to ‘further the purposes of the UN’—as they did with regard to the interventions in Kosovo (1999) and Iraq (2003). State practice after the Corfu Channel case was generally consistent with the Court’s approach, and claims by states that the prohibition on the use of force was limited were rare.67 In Nicaragua the Court accordingly took the position that the prohibition on the use of force was customary international law, and that the prohibition was ‘not as such conditioned by provisions relating to collective security, or to the facilities or armed contingents to be provided under Article 43 of the Charter’.68 This can be construed as necessitating the rejection of the position of those commentators who argued during the Cold War that Article 2(4) should be construed to allow the use of force that furthers the purposes of the UN, because the collective security system had broken down and the Security Council was unable to act.69 The Court has consistently taken the position that Article 2(4) is a strict prohibition of the use of force which does not allow far-reaching exceptions that would undermine its impact; this is strengthened by its position on nonintervention. 62

63 Nicaragua (Merits) (n 4) para 190. DRC v Congo (n 6) para 148. 65 Corfu Channel (n 3) 35. 66 Corfu Channel (n 3) 35. Corfu Channel (n 3) 35. 67 See C Gray, International Law and the Use of Force (Oxford: OUP, 3rd edn 2008) 31. 68 Nicaragua (Merits) (n 4) para 188. 69 See WM Reisman, ‘Coercion and Self-Determination’, and reply by O Schachter, ‘The Legality of Pro-Democratic Invasion’ (1984) 85 AJIL 642, 646. 64


248

The Development of International Law by the ICJ

5.2 Non-use of force and non-intervention The prohibition on the use of force is reinforced by the overlapping and closely related principle of non-intervention, and the Court took a consistent and strict approach on this also. The Court analysed this principle at some length in Nicaragua and in DRC v Uganda. It examined the claim that new exceptions to this principle had arisen, and found that they had not. The one possible exception was the use of force by national liberation movements. The Court avoided the issue as to whether a people seeking self-determination may use force and receive forcible assistance from a third state. It said: ‘The court is not concerned here with the process of decolonization; this question is not in issue in the current case.’70 It was strongly criticized by Judge Schwebel for so doing: he said that the implication was that there was such a right. He pointed out that there was a division on this question.71 This question is little discussed today, partly because there are few remaining cases of colonial domination. There is no significant public discussion of this issue even with regard to the Palestinians of the occupied territories. Apart from this passing reference to self-determination in Nicaragua, the Court refused to accept any new exceptions to the principle of non-intervention. The principle rests on respect for territorial integrity and the sovereign equality of states. Thus, the Court in Nicaragua rejected any right of ‘ideological intervention’,72 often referred to today as ‘pro-democratic’ intervention. Certain commentators have supported such a doctrine, but there is little or no basis for it in state practice. The Court’s Judgment could also be reasonably interpreted as having rejected the doctrine of humanitarian intervention, a doctrine rejected by the vast majority of states.73 The Court started its consideration of the principle of non-intervention by saying that the existence in the opinio juris of states of the principle of non-intervention was backed by established and substantial practice.74 As regards the content of the principle, the Court turned to the provisions of the Declaration on Friendly Relations for guidance. The principle prohibited coercive intervention with regard to matters on which each state was permitted to decide freely, including choice of political, economic, social, and cultural system and the formulation of foreign policy. Direct military intervention or indirect intervention through support for subversive or terrorist activities in another state were wrongful in the light of both the principle of non-use of force and that of non-intervention. Therefore, the Court found that the US support given to the military and paramilitary activities of the contras, by financial support, training, supply of weapons, intelligence, and logistic support, constituted a clear breach of the principle of non-intervention. This was so even if it had not been

70

71 Nicaragua (Merits) (n 4) paras 178–81. Nicaragua (Merits) (n 4) para 206. Nicaragua (Merits) (n 4) paras 263–7. 73 Nicaragua (Merits) (n 4) paras 267–8. It avoided further consideration of this issue in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403. 74 Nicaragua (Merits) (n 4) paras 201–9. 72


The Use of Force

249

proved that the USA had itself intended to overthrow the Nicaraguan Government: ‘in international law, if one state, with a view to the coercion of another state, supports and assists armed bands . . . whose purpose is to overthrow the government of that state, that amounts to an intervention by the one state in the internal affairs of the other.’75 Similarly in DRC v Uganda the Court held that Uganda was responsible for unlawful intervention through its support for the opposition forces in the DRC. This was so even if Uganda’s objectives were not to overthrow President Kabila of the DRC. The training and military support that Uganda gave to the opposition forces violated the international law principles set out in the Declaration on Friendly Relations, which was declaratory of customary international law.76 In contrast, the Court rejected Uganda’s first counterclaim. Uganda claimed that it had been the victim of military operations by hostile armed groups in the DRC, actively supported by the DRC, in violation of the general rule forbidding the use of armed force in international relations and in violation of the principle of nonintervention in the internal affairs of a state. However, the Court held that Uganda had not shown that the DRC actively supported these armed groups operating against it.77 These findings that forcible intervention can be unlawful even if there is no intent to overthrow the government are clearly significant for the assessment of the legality of regime change in Iraq (2003) and Libya (2011), given the insistence, by some of the intervening states, that their action was not aimed at toppling the existing regime. In DRC v Uganda the Court also considered a wider principle of intervention, the duty of vigilance. Its reasoning on this issue is significant and has proved controversial. In its first counterclaim Uganda recalled the Court’s statement in Corfu Channel on the obligation of states not knowingly to allow their territory to be used for acts contrary to the rights of other states, and argued that two types of duty of non-intervention flow from this principle. One prohibits active support for opposition armed groups; the second imposes a duty of vigilance to ensure that such activities are not tolerated on the state’s territory.78 With regard to the second, the Court cited the Declaration on Friendly Relations, which states that ‘[e]very State has the duty to refrain from acquiescing in organized activities within its territory directed towards the commission of such acts’ (ie terrorist acts, acts of internal strife) and that ‘no State shall tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State’, as declaratory of customary international law.79 It held that Uganda had failed to prove its counterclaims on the duty of vigilance. At first, the DRC (Zaire as it then was) was not capable of stopping the actions of the rebels; subsequently it had in fact taken action, though this had been ineffective because of the difficulty and remoteness of the terrain. The Court held that inability to act against the rebels and ineffective action did not violate the duty of vigilance. There must be 75 77 79

76 DRC v Congo (n 6) paras 155–65. Nicaragua (Merits) (n 4) para 241. 78 DRC v Congo (n 6) para 277. DRC v Congo (n 6) paras 297–300, 303, 304. DRC v Congo (n 6) para 300.


250

The Development of International Law by the ICJ

toleration or acquiescence. Mere absence of action or ineffective action by the DRC Government did not amount to tolerating or acquiescing. Therefore the DRC was not guilty of unlawful intervention for breach of its duty of vigilance. This Judgment makes it difficult to argue that states which are unable to act against terrorists or armed bands in their territory are themselves responsible for any attacks carried out by those non-state actors on third states. Some recent commentators have nevertheless claimed that since the terrorist attacks of 9/11 there has emerged a right of self-defence against non-state actors operating from third states which are unable to take action against them.80

5.3 Other aspects of Article 2(4) The Court in Nicaragua also went into the more detailed question of what activities amount to ‘use of force’ under the prohibition codified in Article 2(4).81 In this context it distinguished between the most grave forms of force which constitute armed attack and other less grave forms.82 This approach reflects the distinction in the language of the UN Charter between the ‘use of force’ in Article 2(4) and ‘armed attack’ in Article 51, and was to prove central to the Court’s finding on selfdefence in Nicaragua. The Court held that the arming and training of armed opposition forces could constitute a use of force, but the supply of funds could not. Both types of support could amount to unlawful intervention.83 The Court has also considered the meaning of the ‘threat of force’ in Article 2(4) in Nicaragua and Nuclear Weapons, but it offered little enlightenment on this question.84 The concrete questions it considered were: could military manoeuvres be a threat of force? Could the possession of nuclear weapons be a threat of force? In Nicaragua the Court said only that it was not satisfied the military manoeuvres constituted a breach of the prohibition of the use of force in the circumstances.85 In the Nuclear Weapons Advisory Opinion the Court went into a little more detail. It held that if the use of force envisaged was unlawful, a stated readiness to use it would be a threat prohibited under Article 2(4). The notions of threat of force and use of force in Article 2(4) stood together: if the use of force is unlawful the threat of it is also unlawful.86 Some commentators have been critical of this approach, arguing that the prohibition of threat of force in Article 2(4) is independent of the prohibition of the use of force.87

80 See eg discussion by T Becker, Terrorism and the State (Oxford: Hart Publishing, 2006); Ruys (n 41) 486; L Moir, Reappraising the Resort to Force (Oxford: Hart Publishing, 2010) 153. Christian Tams argues that such a right is now emerging: ‘The Use of Force against Terrorists’ (2009) 20 EJIL 359. 81 Nicaragua (Merits) (n 4) para 228. 82 Nicaragua (Merits) (n 4) para 191. 83 Nicaragua (Merits) (n 4) para 228. 84 N Stürchler, The Threat of Force in International Law (Cambridge: CUP, 2007); M Roscini, ‘Threats of Armed Force and Contemporary International Law’ (2007) 54 NILR 229. 85 Nicaragua (Merits) (n 4) para 227. 86 Nuclear Weapons (n 8) paras 47–8. 87 Stürchler (n 84).


The Use of Force

251

6. Self-defence The most important—and the most controversial—part of the Court’s jurisprudence on the use of force concerns the use of force in self-defence.88 This was central in the Court’s Judgments in Nicaragua, Oil Platforms, DRC v Uganda, and in its Opinions on Nuclear Weapons and the Wall. In Nicaragua the USA claimed that its use of force against Nicaragua was justified as collective self-defence in response to armed attacks by Nicaragua against Costa Rica, El Salvador, and Honduras; in DRC v Uganda Uganda claimed that it had used force in self-defence against armed attacks from the DRC; in Oil Platforms the USA claimed self-defence against Iran in response to missile and mine attacks on its vessels in the Gulf; in the Wall Opinion the Court examined Israel’s claim that its construction of the wall in Palestinian occupied territory was justified as self-defence; in the Nuclear Weapons Opinion the Court considered whether it was lawful to use nuclear weapons in selfdefence. However, the Nuclear Weapons Opinion offered little of significance on this question in its very brief reasoning on self-defence. Paragraph E of its Opinion states only that ‘the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of selfdefence, in which the very survival of a State would be at stake’. The Court was divided seven–seven on this central finding, and this part of the Opinion was agreed by the deciding vote of the President of the Court. The five Declarations, three Separate Opinions, and six Dissenting Opinions show the divergence of views on this issue.

6.1 The notion of ‘armed attack’ The crucial issue in all these cases (except for the Nuclear Weapons Opinion) was whether there was an armed attack which justified the use of force in self-defence. In all these cases the states using force justified their actions as self-defence against an actual armed attack; they did not claim a wider right of self-defence against an imminent attack.89 In all these cases there was held to have been no such armed attack by the respondent state. The first sentence of Article 51 of the UN Charter provides that ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member State of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security’. However, the UN Charter does not provide any definition of ‘armed attack’. The claim that there had been an armed attack was problematic in Nicaragua, Oil Platforms, DRC v Uganda, and the Wall Opinion because in none of them was there a classic cross-border action by the regular armed forces of an aggressor state. 88 See discussion by JA Green, The International Court of Justice and Self-Defence in International Law (Oxford: Hart Publishing, 2009); Ruys (n 41). 89 See 6.5.


252

The Development of International Law by the ICJ

In Nicaragua the question was whether Nicaragua had committed armed attacks against El Salvador, Costa Rica, and Honduras that would justify the use of force by the USA in collective self-defence. The USA did not succeed in showing that Nicaragua was responsible for armed attacks against El Salvador, though there was some evidence of its involvement in the supply of arms to groups opposing the Government of El Salvador.90 The USA also showed some cross-border incursions from Nicaragua into Honduras and Costa Rica.91 Three issues arose. First, could attacks by irregular forces be regarded as armed attacks by a state, justifying the use of force in self-defence against that state? The Court adopted the Definition of Aggression Article 3(g) as applicable in this context. Attacks by irregular forces were imputable to states when there was ‘“the sending by or on behalf of a State of armed bands . . . which carry out acts of armed force against another states of such gravity as to amount to” . . . an actual armed attack conducted by regular forces, “or its substantial involvement therein”’.92 Today much controversy centres on this part of the Judgment in the light of the terrorist attacks of 9/11. Some have argued that a wider definition of armed attack should now be adopted.93 However, the Court in DRC v Uganda (decided after 9/11) reaffirmed its commitment to this definition of armed attack. On the question whether the acts of armed bands operating from the DRC amounted to an armed attack against Uganda, the Court again referred to Article 3(g) of the Definition of Aggression as establishing the appropriate test. On this basis it concluded that the acts were not attributable to the DRC. It accordingly found that the legal and factual circumstances for the exercise of a right of selfdefence by Uganda against the DRC were not present.94 Second, what types of actions could constitute an armed attack? In Nicaragua the Court held that the supply of arms and other logistic support to opposition forces did not amount to an armed attack, although it could constitute an unlawful intervention, ‘that is a form of conduct which is certainly wrongful but of a lesser gravity than an armed attack’.95 In its Pleadings in DRC v Uganda Uganda directly challenged this view.96 It tried to persuade the Court that the wider views of Judges Schwebel and Jennings in Nicaragua on the meaning of ‘armed attack’ were to be preferred. Uganda argued that the provision of logistical support to armed bands with knowledge of their objectives could constitute an armed attack (as opposed to just unlawful intervention), but it did not offer any legal argument to support this claim, and it was not accepted by the Court. Third, is there a gravity requirement for armed attack? The Court’s Judgment in Nicaragua contains the well-known statement that ‘it will be necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms’.97 The Court referred to this with regard to its finding that the supply of arms did not amount to armed attack. The Court has subsequently

90 92 95 96 97

91 Nicaragua (Merits) (n 4) paras 161–3. Nicaragua (Merits) (n 4) paras 130, 155–60. 93 See 6.6. 94 DRC v Congo (n 6) para 146. Nicaragua (Merits) (n 4) para 195. Nicaragua (Merits) (n 4) paras 195, 230, 247. Uganda’s Countermemorial 350; Rejoinder 268–70. See Gray (n 67) 130–2. Nicaragua (Merits) (n 4) para 191.


The Use of Force

253

adhered to the view that an armed attack giving the right of self-defence must attain a certain level of gravity. Moreover, it has not limited the gravity requirement to attacks by irregular forces. In Nicaragua it also drew a distinction between armed attacks and mere frontier incidents with regard to the actions of regular forces.98 These statements have attracted much criticism. Some critics have even asserted that this approach would actually encourage the use of force.99 However, the Court has not been swayed by these criticisms and it repeated its commitment to the gravity requirement in Oil Platforms where it held that in order to justify its attacks on the Iranian oil platforms the USA had to show that the attacks upon its vessels qualified as ‘armed attacks’ within Article 51 and as understood in customary international law.100 It relied on Nicaragua in holding that it was necessary to distinguish ‘the most grave forms’ of the use of force (those constituting armed attack) from other less grave forms. Therefore, the missile attack on the US-flagged tanker, the Sea Isle City, did not amount to an armed attack. The USA had apparently tried to address the gravity issue by arguing that the attack on the Sea Isle City should not be taken in isolation, but should be seen as part of a series of other attacks. But the Court held that the USA had not shown that the series of incidents (even taken cumulatively) amounted to an armed attack which met the Nicaragua standard of a most grave form of the use of force.101 However, in its discussion of the US response to the mine attack on the US naval vessel Samuel B Roberts the Court did not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the inherent right of self-defence.102 The US State Department Legal Advisor Taft criticized this distinction between armed attacks and less grave use of force, saying that it was only appropriate with regard to irregular forces, and claiming that Nicaragua had not applied the gravity requirement to regular forces.103 Therefore he said that the distinction should not be applied to the actions of the Iranian armed forces. He did, however, accept that a distinction should be drawn between frontier incidents and armed attacks with regard to regular forces. The USA thus seems to have relied on a form of the so-called accumulation of events theory to try to address the gravity requirement in its pleadings in Oil Platforms. This doctrine—that a series of minor attacks which did not individually amount to an armed attack could cumulatively constitute an armed attack—had apparently been raised in passing by the Court in Nicaragua.104 It does not seem to have swayed the Court in Oil Platforms, and Judge Simma rejected the doctrine in his Separate Opinion: he said that there is in international law no ‘qualitative jump’ from iterative activities remaining below the threshold of Article 51 to the type of armed attack envisaged in the case.105 The accumulation of events theory was not raised by the Court in DRC in its consideration of whether the series of cross-border 98

Nicaragua (Merits) (n 4) para 195. See Gray (n 67) 180. The Eritrea/Ethiopia Claims Commission also adhered to the gravity requirement: (2006) 45 ILM 430. 100 Oil Platforms (n 5) paras 51, 64. 101 Oil Platforms (n 5) paras 50, 62–4. 102 Oil Platforms (n 5) para 72. 103 Taft (n 60). 104 Nicaragua (Merits) (n 4) para 231. 105 Oil Platforms (n 5) para 14. 99


The Development of International Law by the ICJ

254

attacks amounted to an armed attack by the DRC; nor was it addressed by the Court in Cameroon v Nigeria.106

6.2 Necessity and proportionality As the Court pointed out in Nicaragua, the UN Charter does not deal with all aspects of self-defence. It does not define armed attack. Nor does it expressly require that self-defence must be necessary and proportionate, but the ICJ has repeatedly affirmed that these requirements are part of customary law; in state practice these criteria play a crucial role. The parties in Nicaragua were in agreement on these criteria.107 The Court has applied them in all its contentious cases on the use of force. It has treated them as separate criteria, although it is not possible to keep them totally distinct. Thus, in Nicaragua the US actions in mining Nicaraguan ports and its attacks on the ports and oil installations were not necessary collective self-defence of El Salvador because they were carried out several months after the main offensive by El Salvador’s armed opposition forces against the Government had been completely repulsed. It was possible to eliminate the main danger to the El Salvadorian Government without undertaking activities in and against Nicaragua. Moreover, the US actions were not proportionate: the attacks on the ports and oil installations were not proportionate to aid by Nicaragua (whatever its exact scale) to the El Salvadorian armed opposition. And the US reaction had continued long after the period in which any presumed armed attack by Nicaragua could be contemplated.108 In Oil Platforms the Court began by stressing that the requirement of necessity was strict and objective and left no room for any measure of discretion.109 It went on to cite Nicaragua and Nuclear Weapons on the requirements of necessity and proportionality in the law of self-defence.110 One aspect of these criteria was the nature of the target. The Court had not expressly discussed this in Nicaragua, but it was implicit in its finding that attacks on Nicaraguan ports and oil installations were not necessary or proportionate. In Oil Platforms the Court treated the issue of the nature of the targets as relevant to the necessity of the use of force. The USA had claimed that the oil platforms were legitimate targets for an armed action in self-defence in response to attacks on US ships because the platforms had been used for the collection and communication of military intelligence. The Court was not convinced by the US evidence as to this military activity, but it said that, even accepting those US contentions, it was unable to hold that the attacks could be justified as self-defence. It was not convinced that the attacks on the platforms were necessary to respond to the attacks on the Sea Isle City and the USS Samuel B Roberts. In this context the Court noted that there was no evidence that the USA had complained to Iran about the military activities on the platforms,

106 108 110

Land and Maritime Boundary (n 7). Nicaragua (Merits) (n 4) para 237. Oil Platforms (n 5) paras 74–6.

107 109

Nicaragua (Merits) (n 4) para 194. Oil Platforms (n 5) para 73.


The Use of Force

255

although it had complained about mine-laying and attacks on neutral shipping. The USA criticized this part of the Court’s Judgment as without basis in international law and unduly restrictive,111 but the Court was not laying down a new test; it was simply considering whether the US attacks on the oil platforms were necessary. On proportionality, the Court distinguished between the two episodes. The October 1987 operation in response to the attack on the Sea Isle City might have been proportionate if it had been necessary. However, the April 1988 actions in response to the attacks on the Samuel B Roberts were part of a more extensive operation involving the destruction of two Iranian frigates and a number of other vessels and aircraft. This was not proportionate to the mining of a single US warship which was severely damaged but not sunk and without loss of life. In both Nicaragua and Oil Platforms the Court considered necessity and proportionality after it had already established that there had not been an armed attack which justified the use of force in self-defence. That is, it was not strictly necessary for the Court to consider these criteria of the legality of self-defence; they were additional grounds of wrongfulness.112 Similarly in DRC v Uganda the Court had rejected Uganda’s claim to be acting in self-defence as there was no armed attack by the DRC. It said that there was no need for it to inquire into necessity and proportionality, but it nevertheless observed that the taking of airports and towns many hundreds of kilometres from Uganda’s border did not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self-defence, or necessary to that end.113 The Nuclear Weapons Opinion dealt with this question in the abstract and did not add anything very illuminating.114 It did make clear that states must take environmental harm into consideration in assessing whether an action is in conformity with the principles of necessity and proportionality.115 However, the Court avoided the more fundamental question whether nuclear weapons are by their nature incapable of being proportionate. Certain states had argued that the very nature of nuclear weapons and the high probability of an escalation of nuclear exchanges meant that there was an extremely strong risk of devastation; this risk factor negated the possibility of the condition of proportionality being complied with. The Court did not find it necessary to inquire into the question whether certain tactical nuclear weapons existed which were sufficiently precise to limit these risks. It noted only that the nature of nuclear weapons and the profound risks associated with them were factors to be taken into account by states considering whether a nuclear response in self-defence was proportionate.

111

See Taft (n 60). Some argue to the contrary that necessity and proportionality should be the sole decisive criteria in assessing the legality of the use of force in self-defence: Green (n 88); KN Trapp, ‘Back to Basics’ (2007) 56 ICLQ 141. 113 DRC v Congo (n 6) para 147. 114 Nuclear Weapons (n 8) paras 41–3. 115 Nuclear Weapons (n 8) paras 28–33. 112


The Development of International Law by the ICJ

256

6.3 Collective self-defence The right of collective self-defence was central in Nicaragua because the USA had relied on this in its attempt to justify its use of force against Nicaragua. The Court held that collective self-defence could be legally invoked by the USA even though there may have been the possibility of another motive drawn from the political orientation of the Nicaraguan Government. The existence of an additional motive could not deprive the USA of its right to resort to collective self-defence, but it did mean that special caution was called for in considering the allegations by the USA against Nicaragua.116 Collective self-defence was also mentioned in passing in the two subsequent contentious cases on the use of force. This is interesting given that the express invocation of collective self-defence is relatively unusual in practice; intervention at the request of a government has been more common. In Nicaragua the Court set out the requirements for collective self-defence: it is the state which is the victim of an armed attack which must form and declare the view that it has been so attacked. There is no rule in customary international law permitting another state to exercise the right of collective self-defence on the basis of its own assessment of the situation. Moreover, there is no rule allowing collective self-defence in the absence of a request by the victim state.117 On the particular facts the US claim that it was acting in collective self-defence failed; there was no timely declaration by El Salvador that it had been the victim of an armed attack, and there was no declaration at all by Costa Rica or Honduras. None of the states had requested forcible assistance from the USA before it took its actions against Nicaragua.118 The Court’s decision on the scope of collective self-defence in Nicaragua was criticized as unduly restrictive by Judges Schwebel and Jennings in their Dissenting Opinions, but the Court has reaffirmed its decision in its later cases. In DRC v Uganda collective self-defence was mentioned only briefly when the Court said that the DRC was entitled to invite help from Sudan.119 In Oil Platforms the Court noted that the USA had not invoked collective self-defence. It nevertheless took the opportunity to repeat the requirement of a request: ‘The USA has not claimed to have been exercising collective self-defence on behalf of neutral states engaged in shipping in the Persian Gulf; this would have required the existence of a request made to the United States by the State which regards itself as the victim of an armed attack.’120 The Court referred to the Nicaragua case as authority for this position. Again it has not been swayed by the critics who challenged this requirement or by the Dissenting Opinions of Jennings and Schwebel.

6.4 Report to the Security Council Article 51 requires that ‘Measures taken by Members in their exercise of this right of self-defence shall be immediately reported to the Security Council’. This 116 118 120

Nuclear Weapons (n 8) para 127. Nicaragua (Merits) (n 4) paras 231–4. Oil Platforms (n 5) para 51.

117

Nicaragua (Merits) (n 4) paras 195–9. 119 DRC v Congo (n 6) para 128.


The Use of Force

257

provision was given new life by the Nicaragua decision. Before that decision compliance had been erratic, but since then states have generally taken care to report their use of force in self-defence to the Security Council.121 In Nicaragua the Court held that, although this requirement was not part of customary international law, it was significant in that failure to report could be an indication that the state was not genuinely acting in self-defence.122 In DRC v Uganda when it came to determine whether the use of force by Uganda within the territory of the DRC could be characterized as self-defence it noted without comment that Uganda had failed to report to the Security Council events that it regarded as requiring it to act in self-defence.123 It seems to have treated this as an additional factor indicating the illegality of Uganda’s actions, but it did not make this explicit. In Oil Platforms the Court took account of the US reports to the Security Council in considering the nature of its claim of self-defence.124

6.5 Anticipatory self-defence The Court’s avoidance of certain controversial issues has attracted as much criticism as its actual decisions. The Court has to date expressly chosen to avoid two divisive issues in its judgments: anticipatory self-defence and self-defence against attacks by non-state actors in the absence of state complicity in those attacks. First, the Court has avoided the question of the lawfulness of anticipatory self-defence. In Nicaragua it said that ‘the possible lawfulness of a response to the imminent threat of an armed attack which has not yet taken place has not been raised’.125 Everything that follows must be read in that light, though some commentators have asserted that a later paragraph, which states that ‘[t]he exercise of the right of collective self-defence presupposes that an armed attack has occurred’, should be read in isolation and amounts to an express rejection of anticipatory self-defence.126 Judge Schwebel in his Dissenting Opinion said that, insofar as this statement in the Judgment was ambiguous and might be interpreted as meaning that self-defence was only possible against an actual armed attack and that Article 51 of the UN Charter should be narrowly construed, it was an obiter dictum and a mistaken one.127 The Court again avoided this issue in DRC v Uganda. It noted that Uganda had ‘insisted that Operation Safe Haven was not a use of force against an anticipated attack’.128 Accordingly it would again express no view on that issue. However, there are elements of the Court’s reasoning which seem to amount to a firm rejection of a wide right of self-defence. The Court observed that the Ugandan High Command document which set out its official position on the use of force made no reference to 121 See Gray (n 67) 121, 188. However, there have been some notable exceptions, as in the case of Turkey’s actions against the PKK in Iraq. In contrast, Israel often invokes Art 51 in situations such as Gaza where it is doubtful whether it is applicable. 122 Nicaragua (Merits) (n 4) para 200. See also Nuclear Weapons (n 8) para 44. 123 DRC v Congo (n 6) para 145. 124 Oil Platforms (n 5) paras 48, 62, 67, 72. 125 Nicaragua (Merits) (n 4) para 35; it repeated this, para 194. 126 Nicaragua (Merits) (n 4) para 232. 127 Nicaragua (Merits) (n 4) paras 172–3. 128 DRC v Congo (n 6) para 143.


258

The Development of International Law by the ICJ

armed attacks which had already occurred against Uganda; instead the document said that the use of force was necessary ‘to secure Uganda’s legitimate security interests’. The security needs that it specified were essentially preventative.129 Later in its Judgment the Court said that Article 51 justifies the use of force in selfdefence only within the strict confines there laid down. It does not allow the use of force by a state to protect perceived security interests beyond those parameters. Other means are available to a concerned state, including, in particular, recourse to the Security Council.130 This is clearly counter to the ‘Bush Doctrine’ of preemptive self-defence.131 In its Nuclear Weapons Opinion the Court avoided speculation on possible scenarios in which nuclear weapons might be used; this enabled it to avoid any consideration of the argument that the special nature of nuclear weapons justifies anticipatory self-defence, that the threat they pose is so great that a possible target state cannot wait for an actual attack. The challenges to the non-proliferation of nuclear weapons posed by North Korea and Iran have widened this question to whether the use of force might be justified to prevent the acquisition of nuclear weapons by certain states.132

6.6 Self-defence against non-state actors The Court has also avoided the question of the impact, if any, of the terrorist attacks of 9/11 and subsequent state practice on the scope of the right of selfdefence. The Court has declined the opportunity to revise its Judgment in Nicaragua in subsequent cases. We have seen that in Nicaragua the Court held that there could be an armed attack by irregular forces, that is, by non-state actors. An armed attack by a state did not have to be by a regular army; it could include acts of nonstate actors if these met the test in the Definition of Aggression. There had to be a ‘sending by or on behalf of a state of armed bands . . . or substantial involvement therein’. Mere supply of arms and logistic support did not amount to an armed attack. There was some criticism of Nicaragua at the time for adopting a narrow definition of armed attack. This question has become even more controversial since the terrorist attacks of 9/11. Can there be an armed attack by non-state actors in the absence of state involvement, or with a lesser degree of state involvement than that required in Nicaragua, as a literal interpretation of Article 51 might allow, even though it had not been interpreted in this way for fifty years? Is there now a wider right of self-defence which allows the use of force in self-defence against such nonstate actors in the territory of a third state which was not involved in their attack? Does this apply only in regard to terrorists? Or is there now a new right of extraterritorial enforcement or a revival and expansion of the doctrine of necessity? Should the rules on state responsibility (used in Nicaragua with regard to the 129

130 DRC v Congo (n 6) para 148. DRC v Congo (n 6) para 143. As set out in the 2002 and 2006 US National Security Strategies. 132 See C Gray, ‘The Use of Force to Prevent the Proliferation of Nuclear Weapons’ [2009] Japanese Ybk Intl L 101. 131


The Use of Force

259

relation of the USA and the contras in the context of establishing US responsibility for unlawful use of force) now be used to expand the right of self-defence? The Court has avoided these questions. Its discussion of the scope of the right of self-defence in the Wall Opinion was brief and opaque. It considered the question whether Israel could rely on the right of self-defence to justify the construction of the wall in the occupied West Bank. As Judge Higgins pointed out in her Separate Opinion, it was doubtful whether Article 51 was in fact applicable to the construction of the wall as this was not a use of force by Israel.133 However, Israel itself had claimed in the UN General Assembly that the barrier was a measure wholly consistent with Article 51 of the UN Charter and Security Council Resolutions 1368 (2001) and 1373 (2001) passed after the terrorist attacks of 9/11,134 and so the Court considered this question in one paragraph.135 This was a simple rejection of Israel’s claims rather than a reasoned discussion of the applicable law. In a single, much-discussed paragraph the Court first quoted Article 51; it then went on: Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another. However, Israel does not claim that the attacks against it are imputable to a foreign State. The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside that territory. The situation is thus different from that contemplated by Security Resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defence.

In DRC v Uganda, after the Court found that the DRC was not responsible for armed attacks against Uganda, it said: ‘Accordingly, the Court has no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against largescale attacks by irregular forces.’136 It did not consider the question of self-defence against non-state actors in the absence of state complicity in the attacks. The Court has been strongly criticized by separate and dissenting judges for its avoidance of this question and for its refusal to revisit Nicaragua.137 Much has been written in an attempt to divine the significance of the brief passages in the Wall Opinion and DRC v Uganda. Some have interpreted the Court’s statements in the former as rejecting a right of self-defence against non-state actors in cases where the Nicaragua threshold for an armed attack was not met.138 Certainly the Court rejected Israel’s claim, but it is not absolutely clear that this is a blanket rejection. The Separate and Dissenting Opinions disagreed as to whether the Court had pronounced on this question or not. The Court limited the Security Council 133

134 Wall (n 9) para 138. Wall (n 9) para 35. 136 DRC v Uganda (n 6) para 147. Wall (n 9) para 139. 137 Judges Higgins, Buergenthal, and Kooijmans in Wall (n 9); Judges Simma and Kooijmans in DRC v Uganda (n 6). 138 C Tams, ‘Note Analytique: Swimming with the Tide or Seeking to Stem It’ (2005) 18 Revue québécoise de droit international 275. 135


260

The Development of International Law by the ICJ

resolutions to their particular facts; they could not be relied on by Israel as the occupying power to justify its invocation of self-defence in the occupied territories.139 It could be argued that the Court left open the wider question whether there is a right to use force in self-defence against non-state actors in a third state where the Nicaragua test is not met.140 It seems to me that the Court was well advised to avoid pronouncing on such a controversial topic when this was not absolutely necessary for its decision in DRC v Uganda or for its Wall Opinion. Commentators are divided on this issue and there is no uniform state practice. A few Separate and Dissenting judges regretted that the Court had not addressed the issue. They argued that the concept of ‘armed attack’ had changed since 9/11, and that self-defence allowed action against non-state actors even where the Nicaragua threshold was not met. However, they did not make clear the legal basis for their assertions that there is now a wider right of self-defence. It is significant that, although Judges Higgins and Buergenthal criticized the Court in this regard in the Wall Opinion and asserted that an occupying power should be able to invoke the right of self-defence under Article 51, they did not raise the issue again in the different factual situation of DRC v Uganda. Nevertheless Judges Simma and Kooijmans in DRC v Uganda claimed that the Court should have taken the opportunity to reconsider Nicaragua. Judge Simma asserted that since 9/11 the ‘international community’ looked more favourably on claims to self-defence against terrorist actors. He agreed with Judge Kooijmans that it was ‘unreasonable’ to deny the attacked state a right of self-defence against non-state actors in general. The majority of the Court was obviously not persuaded by these arguments.

7. Conclusion The International Court of Justice has taken the clear view that the prohibition of the use of force in Article 2(4) of the UN Charter is a strict one, and it has resisted calls to widen its view of the scope of self-defence. It has been consistent in its approach to the use of force. It has repeatedly referred to its Judgment in Nicaragua, and has reaffirmed its findings in that case; it has also referred back to its general statements in Corfu Channel. In so doing it has given a key role to certain General Assembly resolutions on the use of force. The Court’s approach has been strongly challenged by the USA which lost two cases concerning the use of force. But it should not be forgotten that the majority of states do not follow the US approach to the use of force. It has also been attacked by many commentators who argue for a wider right to use force. Some criticisms have been made on policy grounds; judges and commentators have made allegations

139 Thus, if Gaza continued to be occupied territory Israel was not entitled to invoke self-defence to justify the 2009 Gaza conflict. 140 However, Judge Higgins in Wall ((n 9) para 33) reluctantly concluded that Nicaragua was still good law: ‘While accepting, as I must, that this is to be regarded as a statement of the law as it now stands . . . ’


The Use of Force

261

about the dangerous consequences of the Court’s Judgment. Some have challenged its methodology and its conclusions on the law of intervention and self-defence. Others have criticized it for not taking the opportunity to update its views. Clearly the Court has a crucial role in this highly political area. Corfu Channel was decided soon after World War II, and was an important step in establishing the equal application of the law on the use of force. The Nicaragua case arose at the height of the Cold War and set out the freedom of states to choose their own system of government. The Nuclear Weapons Opinion showed the unbridgeable divide between states and between the judges of the Court with regard to the legality of weapons whose purpose after the end of the Cold War is not entirely clear. Oil Platforms was decided during the lead-up to the 2003 invasion of Iraq; the division between the judges in this case reflects the deep division between their states on the legality of that use of force. The case also reflects the long-standing hostility between the USA and Iran. The Wall Opinion dealt with issues arising out of the Israeli occupation of Palestinian territories, a major barrier to peace in the region. Finally, DRC v Uganda (2005) illustrates the sometimes destabilizing consequences of the end of the Cold War. The Security Council as the political organ with the primary responsibility for maintaining international peace and security is generally reluctant to pronounce on the legality of the use of force. The Court has established the fundamental principle that it may consider conflicts that are also before the Security Council. As the principal judicial organ of the UN it can contribute to the maintenance of international peace and security by upholding the prohibition on the use of force. But many questions as to how far the ICJ should defer to the Security Council remain unanswered. The Court has been cautious in this regard, as reflected in its choice of language: it does not pronounce on aggression or use the language of the Charter in its dispositif. However, the institution of individual opinions by judges allows for more open opinions in less cautious language than that of the Court. Few cases on the use of force have reached a decision on the merits, so commentators pore over them, looking for clues as to their true significance. They often differ as to whether it is necessary to limit the Court’s statements to the facts of a particular case or to interpret them more widely. The Court’s opaque statements in the Wall Opinion and DRC v Uganda with regard to the use of force against non-state actors have led to massive debate. What is the significance of the Court’s avoidance of certain questions? Commentators differ as to whether the Court’s decision to avoid a question simply leaves the legality of a doctrine open, or indicates that it is controversial and so undermines the doctrine, or does not rule it out and so supports the doctrine. Although the Court has noted statements by states, including the USA and Nicaragua, that the prohibition on the use of force is not only customary international law, but even jus cogens, it has not elaborated on the significance of this. Many commentators in their eagerness to proclaim post 9/11 changes in the law seem to treat this as only a matter of rhetoric; they do not accept the Court’s consistent position that new rights to use force are not easy to establish.


This page intentionally left blank


12 The International Court of Justice and the Law of Armed Conflicts Claus Kreß

1. Introduction The Permanent Court of International Justice did not deal with the laws of war in any of its decisions. As such, the International Court of Justice (ICJ, or ‘the Court’) was called upon to develop its jurisprudence on the law of armed conflicts without the benefit of a legacy from its predecessor. It took a while for the Court to address the jus in bello. While it referred to its 1949 Judgment in the Corfu Channel case1 in a number of subsequent pronouncements on the law of armed conflicts, the Corfu Judgment did not deal directly with this body of law. It was not until 1986, with the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (the Nicaragua case)2 that the Court engaged in its first substantial treatment of the subject matter. At this moment in time, most of the modern treaty law on the law of armed conflicts—the detailed four 1949 Geneva Conventions (GC I to IV) and the two 1977 Additional Protocols thereto (AP I and II)—had already entered into force and provided for a fairly detailed legal regime with respect to international armed conflicts.3 In addition to the Nicaragua case, the Court dealt with the subject matter in a substantial way in three other cases, two of which were advisory in nature: Legality of the Threat or Use of Nuclear Weapons in 1996 (Nuclear Weapons)4 and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004 (Wall ),5 and one of which was contentious: the 2005 Judgment in the Case Concerning Armed Activities on the Territory of the Congo

1

Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14. 3 For a fairly comprehensive collection of the international treaties governing the law of armed conflict, see German Federal Foreign Office/German Red Cross/Federal Ministry of Defence (eds), Documents on International Humanitarian Law (St Augustin bei Bonn: Academia Verlag, 2nd edn 2012). 4 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. 5 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136. 2


264

The Development of International Law by the ICJ

(DRC v Uganda).6 In addition, certain observations in the Case Concerning the Arrest Warrant of 11 April 2000 (Arrest Warrant case, 2002),7 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide case, 2007),8 in Jurisdictional Immunities of the State ( Jurisdictional Immunities, 2012),9 and in Questions Relating to the Obligation to Prosecute or Extradite (Prosecute or Extradite, 2012)10 complete the present picture of the Court’s case law on the law of armed conflicts. These cases provided the Court with the opportunity to address a vast number of legal issues covering almost the entire field of the law of armed conflicts. The political sensitivities of the issues before the Court differed from occasion to occasion, as did the level of controversy within the Court in an almost accurate reflection thereof. While the Court pronounced itself in virtual unanimity on the law of armed conflicts in the Nicaragua case, its Advisory Opinion in Nuclear Weapons gave rise to an unprecedented occurrence whereby all of the judges issued individual statements in the form of declarations, separate or dissenting opinions.11 The Nuclear Weapons Opinion calls to mind Hersch Lauterpacht’s famous statement: ‘if international law is at the vanishing point of law, the laws of war are at the vanishing point of international law’,12 as well as Christopher Greenwood’s subsequent observation that ‘the laws of weaponry and targeting are, still more conspicuously, at the vanishing point of the laws of war’.13 As we shall see, it was the advisory proceedings in Nuclear Weapons that provided the Court with an opportunity to move to the ultimate vanishing point of the law.

2. The judicial acquis: a sketch It is not apparent that the doubts about the legitimacy of the continued existence of a jus in bello, which were expressed in some quarters shortly after the modern jus contra bellum had been enshrined in the Charter of the United Nations (UN Charter),14 have ever disturbed the Court. In 1949, in the Corfu Channel case, the Court did not seem to question the continued validity of the Hague Convention of

6

Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168. Arrest Warrant of 11 April 2000 (DRC v Belgium) [2002] ICJ Rep 3. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43. 9 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) Judgment of 3 February 2012 (<http://www.icj-cij.org/docket/files/143/16883.pdf> (accessed on 17 May 2013)). 10 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) Judgment of 20 July 2012 (<http://www.icj-cij.org/docket/files/144/17064.pdf> (accessed 17 May 2013)). 11 See H Thirlway, ‘The Nuclear Weapons Advisory Opinions: The Declarations and Separate and Dissenting Opinions’ in L Boisson de Chazournes and P Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (Cambridge: CUP, 1999) 390. 12 H Lauterpacht, ‘The Problem of Revision of the Law of War’ (1952) 29 BYIL 360, 382. 13 C Greenwood, ‘Current Issues in the Law of Armed Conflict: Weapons, Targets and International Criminal Liability’ (1997) 1 Singapore J Intl & Comparative L 441, 441–2. 14 ILC Ybk 1949, 51–3. 7 8


The Law of Armed Conflicts

265

1907, No VIII, though it rejected its applicability in that case.15 And in 1986, when the Court laid the ground for its jurisprudence on the law of armed conflicts in the Nicaragua case, it did not even mention the temporary post-Charter hesitation as regards the survival of the law of armed conflicts. The existence of a law of armed conflicts and the latter’s co-existence with the modern prohibition on the use of force was simply taken for granted.

2.1 Basic issues 2.1.1 Terminology While the Court alluded to the concept of war in the Corfu Channel case, it has never used the traditional language of ‘the laws and customs of war’,16 instead embracing the modern term ‘law of armed conflicts’. Throughout its jurisprudence17 the Court has displayed a preference for the term ‘international humanitarian law’ to describe the vast majority of rules forming the law of armed conflicts, the only exception being the law of neutrality. In Nuclear Weapons, the Court summarized the main features of the historical development in the area as follows: The ‘laws and customs of war’—as they were traditionally called—were the subject of efforts at codification undertaken in The Hague (including the Conventions of 1899 and 1907), and were partly based upon the St. Petersburg Declaration of 1868 as well as the results of the Brussels Conference of 1874. This ‘Hague Law’ and, more particularly, the Regulations Respecting the Laws and Customs of War on Land, fixed the rights and duties of belligerents in their conduct of operations and limited the choice of methods and means of injuring the enemy in an international armed conflict. One should add to this the ‘Geneva Law’ (the Conventions of 1864, 1906, 1929 and 1949), which protects the victims of war and aims to provide safeguards for disabled armed forces personnel and persons not taking part in the hostilities. These two branches of the law applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single system, known today as international humanitarian law. The provisions of the Additional Protocols of 1977 give expression and attest to the unity and complexity of that law.18

2.1.2 Teleology In the Corfu Channel case, the Court recognized the existence of ‘elementary considerations of humanity, even more exacting in peace than in war’,19 thereby establishing a point of reference for an overarching set of principles and rules of high moral character governing behaviour in times of peace and armed conflict alike. In its 1951 Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the Court implicitly built on the concept of ‘elementary considerations of humanity’ and determined that the goal of 15 16 17 18

Corfu Channel (n 1) 22. However, the term ‘jus in bello’ is used repeatedly in DRC v Uganda (n 6). Beginning with the Judgment in Nicaragua (Merits) (n 2) 112, para 216. 19 Corfu Channel (n 1) 22. Nuclear Weapons (n 4) para 75.


266

The Development of International Law by the ICJ

the Genocide Convention was to ‘confirm and endorse the most elementary principles of morality’.20 In Nicaragua, the Court went on to make an explicit connection between what it called a ‘minimum yardstick’ applicable in all armed conflicts and the ‘elementary considerations of humanity’ as recognized in the Corfu Channel case,21 and in Nuclear Weapons the Court expressed its conviction that the ‘intrinsically humanitarian character of the legal principles in question’ permeates ‘the entire law of armed conflict’.22 In Wall the Court recognized that, with the advent of Geneva Convention IV, the goal of protecting civilians had acquired the primary place within the law of belligerent occupation, while the protection of the rights of the state whose territory is occupied holds an equally prominent place in the classic law of belligerent occupation as embodied in the 1907 Hague Regulations.23 The Court thus emphasized the humanitarian nature of the contemporary law of armed conflicts and the latter’s ultimate purpose of ensuring respect for the human person. In that sense, the Court considered the law of armed conflicts to form part of a body of ‘humanitarian law’ in a broader, nontechnical sense, which also covers human rights law and international criminal law.

2.1.3 Legal nature The Court did not mention the law of armed conflicts explicitly when it introduced the concept of obligations erga omnes in its 1970 Judgment in Barcelona Traction, Light and Power Company, Limited (Second Phase).24 In Wall, however, the Court, having once more referred to the concept of ‘elementary considerations of humanity’, explicitly stated that ‘a great many rules of humanitarian law applicable in armed conflict . . . are essentially of an erga omnes character’.25 While the Court did not take the additional step of characterizing those ‘great many rules’ as jus cogens in Nuclear Weapons, it held as follows: It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity’ . . . that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.26

The precise legal meaning of ‘intransgressible principles of international customary law’ has remained something of a mystery. On the one hand, it would be somewhat curious to assume that the Court simply wished to remind its readers of the binding

20 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15, 23. 21 Nicaragua (Merits) (n 2) para 218. 22 Nuclear Weapons (n 4) 259, para 86. 23 Wall (n 5) para 95. 24 Barcelona Traction, Light, and Power Company, Limited (Belgium v Spain) (Second Phase) (Merits) [1970] ICJ Rep 3, paras 33–4. 25 Wall (n 5) para 157. 26 Nuclear Weapons (n 4) para 79.


The Law of Armed Conflicts

267

nature of ‘principles of international customary law’.27 On the other hand, the Court stated in another paragraph of Nuclear Weapons that it did not see the need to pronounce on the matter of jus cogens.28 The picture has not changed since, despite the Court encountering an excellent opportunity to clarify matters in Jurisdictional Immunities of the State. Here, the Court was confronted with the argument that the jus cogens character of those conduct rules of the law of armed conflicts that underlie the war crimes provisions, necessitate an exception to the customary international law immunity of the state in civil proceedings. The Court, however, again refrained from deciding the jus cogens issue and denied the existence of the alleged immunity exception even on the assumption that the relevant conduct rules of the law of armed conflicts formed jus cogens.29

2.1.4 Scope of application The Court has not engaged in an effort to specify the meaning of the terms ‘international’ and ‘non-international armed conflict’. In both the Nicaragua and Genocide cases, however, the Court dealt with the question of how to classify a conflict—ie whether it is international or non-international in nature—where a foreign state intervenes in an armed struggle within another state. In Nicaragua, the Court deemed it possible that in such a scenario a non-international armed conflict and an international armed conflict may co-exist.30 The Court did not specify, however, whether such a parallel application of the laws of non-international and international armed conflict would be the legal consequence whenever the conduct of non-state forces could not be attributed to the foreign state. In the Genocide case the Court did not decide this question, either. Here, however, the Court opined in passing that ‘logic does not require the same test to be adopted’ with respect to attribution and conflict qualification and that therefore the ‘overall control’ of the intervening state over the non-state armed forces, while not warranting the attribution of the latter’s conduct to the former state, ‘may well’ be sufficient to justify the qualification of the entirety of the hostilities as one comprehensive international armed conflict.31 In Wall, the Court affirmed the applicability of the law of military occupation as part of the law of international armed conflict to the territories, which Israel has been holding in possession since the 1967 armed conflict between Israel and Jordan. The Court held this to be the case irrespective of whether or not Jordan had any rights in respect of those territories before 1967. This conclusion was based on the view that the first paragraph of Article 2 of the Fourth Geneva Convention applies whenever an armed conflict has arisen between two contracting parties and that ‘the object of the second paragraph is not to restrict the scope of application of 27 L Condorelli, ‘Le droit international humanitaire, ou de l’exploration par la Cour d’une terra à peu près incognita pour elle’ in Boisson de Chazournes and Sands (n 11) 234. 28 Nuclear Weapons (n 4) para 83. 29 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) (n 9) para 93. 30 Nicaragua (Merits) (n 2) para 219. 31 Bosnian Genocide (n 8) para 405.


The Development of International Law by the ICJ

268

the Convention, as defined by the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties’.32 In Nuclear Weapons, the Court found that ‘the principle of neutrality . . . is applicable to all international armed conflict’.33

2.1.5 Sources As a rule, the Court has taken the relevant treaty law as the starting point of its legal analysis and it has tended to give priority to this body of law so long as the relevant treaty was applicable and the Court had jurisdiction in relation to it. At the same time, customary international law has been playing a significant role in the Court’s jurisprudence from the outset. Somewhat oddly, the Court avoided using the word ‘custom’ in Nicaragua, where it spoke of ‘(fundamental) general principles of humanitarian law’,34 though it clearly had customary international law in mind. In Nuclear Weapons, the Court made its reference to custom explicit and, as we have seen, it went so far as to declare that ‘a great many rules of humanitarian law applicable in armed conflict’, as contained in the Hague and Geneva Conventions, are of a customary nature.35 The use of the words ‘a great many’ does, of course, also imply a tacit qualification, leaving the door open for the Court to determine, if the need arises, that a certain treaty provision contained, for example, in Additional Protocol I, had not (yet) acquired customary law status. In Nuclear Weapons, the Court also referred to the Martens Clause. It did not, however, rely on ‘the principles of humanity’ and ‘the dictates of public conscience’ as a source of law independent from custom.36

2.1.6 The law of armed conflicts within the international legal order Without making a general statement to this effect, the Court has repeatedly made it clear that it does not think that the existence of an armed conflict ipso facto terminates or suspends the operation of treaties concluded in peacetime between the states parties to an international armed conflict. In Nuclear Weapons, the Court expressed the view that the issue is not whether the treaties relating to the protection of the environment are or are not applicable during an armed conflict, but whether the obligations stemming from these treaties were intended to be obligations of total restraint during military conflict.37

In DRC v Uganda, the Court, referring back to a statement made in United States Diplomatic and Consular Staff in Tehran, recalled that the Vienna Convention on Diplomatic Relations continues to apply between two states notwithstanding the

32 34 35 36

33 Nuclear Weapons (n 4) para 89. Wall (n 5) paras 90–101. Nicaragua (Merits) (n 2) para 218. For the full quotation see 2.1.3; text accompanying n 26. 37 Nuclear Weapons (n 4) para 30. Nuclear Weapons (n 4) paras 78, 87.


The Law of Armed Conflicts

269

existence of a state of armed conflict between them.38 In particular, the Court has taken the view that international human rights treaties continue to apply during armed conflicts. It made one statement of a specific nature and one more general statement in that respect. In Nuclear Weapons, the Court observed that: the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.39

In Wall, the Court, having endorsed this passage from Nuclear Weapons, held as follows: As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.40

The qualification in Nuclear Weapons of the targeting rules (as part of the law on the conduct of hostilities) as leges speciales with respect to the meaning to be given to the concept of ‘arbitrary deprivation of life’ in Article 6 of the International Covenant on Civil and Political Rights, probably falls within the first of the three categories of situations listed in the above quotation. In Wall, the Court was concerned with the second type of situation when it found that Articles 12 (on liberty of movement etc) and 17 (on the right to privacy etc) of the International Covenant on Civil and Political Rights applied to Israel’s construction of the barrier in the occupied territories without seeing the content of those fundamental rights as being superseded by any lex specialis flowing from the law of belligerent occupation.41 In Nuclear Weapons, the Court also turned its attention to the interrelation between the law of armed conflicts and the jus contra bellum under the UN Charter. In the abstract, the Court made the following statement, which fully embraces the idea of the complete separation of the law of armed conflicts from the jus contra bellum: [A] use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law.42

38 40 42

39 Nuclear Weapons (n 4) para 25. DRC v Uganda (n 6) para 323. 41 Wall (n 5) paras 128, 136. Wall (n 5) para 106. Nuclear Weapons (n 4) para 42.


The Development of International Law by the ICJ

270

In the same Advisory Opinion, however, the Court reached a conclusion, the second (sub-) paragraph of which leaves room for the interpretation that the right to self-defence may, in extreme circumstances, trump the law of armed conflicts: It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.43

In Wall, the Court, perhaps inadvertently, again cast a shadow of doubt on the rigour with which it adheres to the separation thesis. Immediately after identifying ‘breaches by Israel of various of its obligations under the applicable international humanitarian law’, the Court queried whether the construction of the barrier might be consistent with Article 51 of the UN Charter. It then found that the conditions of Article 51 had not been fulfilled and that the latter provision was therefore irrelevant in the case before it.44 This is different from stating unambiguously that Article 51 of the UN Charter is not capable, as a matter of principle, of justifying a breach of international humanitarian law.

2.2 ‘Geneva law’ In Nuclear Weapons, the Court emphasized the treaty fusion between the ‘Geneva’ and the ‘Hague’ law through Additional Protocol I, and on closer inspection it turns out that this long-cherished distinction between those two ‘branches’ of the laws of war has never been analytically watertight. Yet, the distinction between those rules which apply primarily to those not (or no longer) taking part in hostilities and those which primarily govern the conduct of hostilities continues to provide a convenient structure for the exposition of the primary rules of the law of armed conflicts and the following brief perusal of the respective Court’s jurisprudence will therefore adhere to this distinction.

2.2.1 General principles and rules In the Nicaragua case, the Court (without explicitly referring to the concept of custom, as we have seen45) identified the existence of ‘fundamental general principles of humanitarian law’ applicable outside the treaty framework of the 1949 Geneva Conventions. The Court held as follows: Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a 43 45

Nuclear Weapons (n 4) para 105 sub E. See in 2.1.5; text accompanying n 35.

44

Wall (n 5) para 139.


The Law of Armed Conflicts

271

minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’ . . . 46

The Court brought those general principles to bear with regard to the killing, by non-state actors in a non-international armed conflict, of judges, police officers, state security officers, etc. The Court found such killings to be in violation of the prohibition on carrying out summary executions and ‘probably also of the prohibition of “violence to life and person, in particular murder to [sic] all kinds . . . ”’.47

2.2.2 The law of belligerent occupation The law of belligerent occupation formed the object of observations by the Court in Wall and the DRC v Uganda case. To date, it is this branch of the law of armed conflicts that has received the most detailed attention by the Court. 2.2.2.1 The prerequisites of belligerent occupation In the DRC v Uganda case, the Court elaborated upon the customary prerequisites of a belligerent occupation as set out in Article 42 of the 1907 Hague Regulations, and it applied this body of law to the Ugandan presence in the Democratic Republic of the Congo at the material time. The relevant paragraph reads as follows: In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as a result of an intervention, is an ‘occupying power’ in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government.48

On this basis, the Court rejected the idea of an ‘indirect’ occupation by a foreign state through non-state actors, unless the latter’s conduct is attributable to that foreign state. 2.2.2.2 Prolonged occupation In the Wall case, the Court applied Article 6, paragraph 3 of Geneva Convention IV to Israel’s ‘prolonged’ occupation of the West Bank. The Court did not specify the date of the ‘general close of military operations’ as referred to in this provision, but it stated that ‘the military operations leading to the occupation of the West Bank ended a long time ago’.49 Starting from that premise, the Court determined that at the material time only those Articles of Geneva Convention IV, which are

46 48

Nicaragua (Merits) (n 2) para 218. DRC v Uganda (n 6) para 173.

49

47 Nicaragua (Merits) (n 2) para 255. Wall (n 5) para 125.


272

The Development of International Law by the ICJ

listed in Article 6, paragraph 3, remained applicable in the occupied territory in question.50 2.2.2.3 Substantive obligations In the DRC v Uganda case, the Court had little difficulty qualifying the atrocities committed by the Ugandan armed forces against civilians in the occupied territory in the Democratic Republic of the Congo as falling under Articles 27 (respect for the person, honour, family rights, etc) and 32 (protection from physical suffering or extermination) of Geneva Convention IV.51 In addition, the Court made the following general observation regarding the key duty of the occupying power under Article 43 of the 1907 Hague Regulations: This obligation [comprises] the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate violence by any third party.52

In Wall, the Court found Israel’s settlements in the West Bank to be in violation of Article 49, paragraph 6 of the Fourth Geneva Convention. In that context, the Court adopted the following interpretation of Article 49, paragraph 6: That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into occupied territory.53

The Court also held that the construction of the barrier violated Article 49, paragraph 6, because it ‘contributed to demographic changes’ in the occupied territories.54 The Court also dealt with a number of provisions in the 1907 Hague Regulations and in the Fourth Geneva Convention which seek to protect property interests. In that respect, it drew an initial distinction between the conduct of hostilities provisions contained in Section II and those governing the law of belligerent occupation as set out in Section III of the 1907 Hague Regulations, and held that Article 23(g) of the latter Regulations, which forms part of Section II, was not pertinent with respect to the construction of the Wall.55 The latter’s construction, however, was said by the Court to have led ‘to the destruction or requisition of properties under conditions which contravene the requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention’.56

50

Wall (n 5) para 125. DRC v Uganda (n 6) para 211; the Court does not, however, explicitly cite the two pertinent provisions. 52 DRC v Uganda (n 6) para 178. 53 Wall (n 5) para 12. 54 Wall (n 5) para 134. 55 Wall (n 5) para 124. 56 Wall (n 5) para 132. 51


The Law of Armed Conflicts

273

In the DRC v Uganda case, the Court also addressed the exploitation of natural resources in an occupied territory and established a connection with the old prohibition of pillage. The passage in question reads as follows: [W]henever members of the UPDF [Uganda Peoples’ Defence Forces] were involved in the looting, plundering and exploitation of natural resources in the territory of the DRC, they acted in violation of the jus in bello, which prohibits the commission of such acts by a foreign army in the territory where it is present. The Court notes in this regard that both Article 47 of the Hague Regulations of 1907 and Article 33 of the Fourth Geneva Convention of 1949 prohibit pillage.57

2.3 ‘Hague law’ Nuclear Weapons provided the Court with a rare opportunity to set out its views on certain important aspects of the law governing the conduct of hostilities and, more specifically, the law prohibiting certain means of conduct. In its search for a specific prohibition on the recourse to nuclear weapons the Court shed light on the terms ‘poison or poisoned weapons’ as used in Article 23(a) of the 1907 Hague Regulations and on the terms ‘asphyxiating, poisonous or other gases’ and ‘all analogous liquids, materials or devices’ as employed in the 1925 Geneva Protocol. The Court required in all cases that ‘the prime, or even exclusive, effect’ of such weapons is to poison or asphyxiate, a requirement which led the Court to exclude nuclear weapons from the scope of the terms concerned.58 The Court did not dwell upon the definition of the key term ‘chemical weapon’ as contained in the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, but confined itself to the statement that this term does not cover nuclear weapons either.59 Having failed to identify any treaty provision with a universal scope of application specifically prohibiting the use of nuclear weapons, the Court was also unable to establish the existence of a rule of customary international law specifically prohibiting the use of nuclear weapons: The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand, and the still strong adherence to the practice of deterrence on the other.60

The Court then inquired as to whether a prohibition on the use of nuclear weapons results from a general rule on the law on the conduct of hostilities. At this juncture, the Court made an exception to its general approach to the sources of law as set out above and left undecided the applicability of the First Additional Protocol to the Geneva Conventions to the use of Nuclear Weapons.61 Instead it placed all the emphasis on the relevant customary law. The Court recognized two paramount customary law principles governing the choice of means of conduct: 57 59 61

DRC v Uganda (n 6) para 245. Nuclear Weapons (n 4) para 57. Nuclear Weapons (n 4) para 84.

58 60

Nuclear Weapons (n 4) paras 55–6. Nuclear Weapons (n 4) para 73.


The Development of International Law by the ICJ

274

The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use.62

Applying those principles to the legal question before it, the Court reached the conclusion that: in view of the unique characteristics of nuclear weapons . . . the use of such weapons in fact seems scarcely reconcilable with respect for such requirements. Nevertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance.63

To this cautiously worded conclusion, the Court then added the famous observation that: it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.64

These two ‘inconclusive conclusions’ reappear (in a somewhat differently worded fashion) as two subparagraphs in the dispositif.65 The Nuclear Weapons Court dealt separately with the protection of the environment in times of armed conflict and it established, as flowing from Articles 35, paragraph 3, and 55 of Additional Protocol I, the: general obligation to protect the natural environment against widespread, long-term and severe environmental damage; the prohibition of methods and means of warfare which are intended, or may be expected, to cause such damage; and the prohibition of attacks against the natural environment by way of reprisals.66

While the Court described these rules as ‘powerful constraints’, it was careful to add the words ‘for all the States having subscribed to these provisions’, which places a significant question mark over the customary nature of those rules. With respect to nuclear weapons, the dictum on Articles 35, paragraph 3, and 55 of Additional Protocol I is further qualified by the Court’s general caveat as to this Protocol’s applicability. With respect to customary international law, the Court was more cautious, holding that ‘respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality’.67 62 64 66

Nuclear Weapons (n 4) para 78. Nuclear Weapons (n 4) para 97. Nuclear Weapons (n 4) para 31.

63 65 67

Nuclear Weapons (n 4) para 95. Nuclear Weapons (n 4) para 105 sub E. Nuclear Weapons (n 4) para 30.


The Law of Armed Conflicts

275

2.4 Enforcement The Court has made a number of important statements on issues of state responsibility, and it has also begun to deal with questions pertaining to individual criminal responsibility for certain breaches of certain rules of the law of armed conflict.

2.4.1 State responsibility 2.4.1.1 Attribution In the DRC v Uganda case, the Court determined that the fact that the ultra vires nature of an act of a member of the armed forces of a state does not hinder the attribution of this act to the state of the armed forces concerned: According to a well-established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol I additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces.68

In Nicaragua, the Court decided to apply the generally applicable prerequisites for the attribution of conduct by private persons within the context of the law of armed conflict.69 In the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide the Court confirmed the non-existence of a lex specialis in this respect and, in interpreting Nicaragua, identified as relevant in this context the two separate concepts of an organ de facto and of a person acting under the effective control of the state concerned. In that respect, the Court considered Articles 4 and 8 of the International Law Commission (ILC) Articles on State Responsibility for Internationally Wrongful Acts as embodying customary international law.70 2.4.1.2 State assistance with acts contrary to the law of armed conflict by private persons and a state’s lack of due diligence in that respect In Nicaragua, the Court derived from Common Article 1 of the Geneva Conventions the obligation of states parties not to encourage private persons to act in breach of the law of international armed conflict. This obligation was held to reflect customary international law and was determined to extend to conduct of private persons contrary to provisions of the law of non-international armed conflict.71 The USA was held to have violated this customary rule by supplying private persons with a manual on psychological operations which contained advice to ‘neutralize’ certain targets not amounting to a military objective within the meaning of the law of armed conflicts.72

68 70 71

69 Nicaragua (Merits) (n 2) paras 108–16. DRC v Uganda (n 6) para 214. Bosnian Genocide (n 8) paras 385–415. 72 Nicaragua (Merits) (n 2) para 255. Nicaragua (Merits) (n 2) para 220.


The Development of International Law by the ICJ

276

In DRC v Uganda, the Court again had to deal with the facilitation by a state of acts of private persons contrary to the law of armed conflicts. This time, the Court analysed the action within the context of the state’s ‘duty of vigilance’ over the conduct of private persons in a state of belligerent occupation. In respect of this duty, the Court found that: the fact that Uganda was the occupying Power in Ituri district . . . extends Uganda’s obligation to take appropriate measures to prevent the looting, plundering and exploitation of natural resources in the occupied territory to cover private persons in this district and not only members of Ugandan military forces.73

2.4.1.3 Belligerent reprisals and necessity In Nuclear Weapons, the Court refrained from stating its view on the customary nature of the prohibition contained in Article 51, paragraph 6 of Additional Protocol I on launching attacks against the civilian population or civilians by way of reprisals. It merely held as follows: Certain States asserted that the use of nuclear weapons in the conduct of reprisals would be lawful. The Court does not have to examine, in this context the question of armed reprisals in time of peace, which are considered to be unlawful. Nor does it have to pronounce on the question of belligerent reprisals save to observe that in any case any right of recourse to such reprisals would, like self-defence, be governed inter alia by the principle of proportionality.74

In the Wall case, the Court held that the construction of the barrier was (prima facie) in breach of certain conduct rules of the law of armed conflicts. It then considered the issue of the applicability of the state of necessity as a ground precluding international wrongfulness within the law of armed conflicts. Here again, the Court refrained from deciding the core question and instead rejected the ‘state of necessity-defence’ on the facts. It nevertheless mentioned the main argument against relying on the state of necessity argument within the context of the law of armed conflicts: [T]he Court is bound to note that some of the conventions at issue in the present instance include qualifying clauses of the rights guaranteed . . . Since those treaties already address considerations of this kind within their own provisions, it might be asked whether a state of necessity as recognized in customary international law could be invoked with regard to those treaties as a ground for precluding the wrongfulness of the measures or decisions being challenged.75

2.4.1.4 Reparation In Wall, the Court confirmed the obligation of a state in breach of the law of armed conflicts to make reparation pursuant to the law of state responsibility for internationally wrongful acts. In the same Advisory Opinion, the Court did not deal in any detail with the question of whether, in addition to the victim state(s), individual victims were also directly entitled to claim reparation under the law of armed 73 74

DRC v Uganda (n 6) para 248; see also para 179. 75 Wall (n 5) para 140. Nuclear Weapons (n 4) para 46.


The Law of Armed Conflicts

277

conflicts. It would appear to be stretching things to read an affirmative statement to that effect into the following passage of the Advisory Opinion: Moreover, given that the construction of the wall in the Occupied Palestinian Territory has, inter alia, entailed the requisition and destruction of homes, businesses and agricultural holdings, the Court finds further that Israel has the obligation to make reparation for the damage caused to all the natural and legal persons concerned. [emphasis added]76

In Jurisdictional Immunities, the Court was careful to distinguish between, on the one hand, the (procedural) immunity of the state before the courts of another state in civil proceedings for reparations for serious violations of the law of armed conflicts and, on the other hand, the (substantive) obligation of the internationally responsible state to make reparation. Only the first issue was before the Court and, accordingly, it did not answer the question whether the individual victim of a serious violation of the law of armed conflicts possesses a right to reparation under international law against the internationally responsible state. The following passage, however, may be read to indicate a certain reluctance to admit to an (unfettered) right to reparation of the individual victim: [A]gainst the background of a century of practice in which almost every peace treaty or postwar settlement has involved either a decision not to require the payment of reparations or the use of lump sum settlements and set-offs, it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community of States as a whole as one from which no derogation is permitted.77

2.4.1.5 The legal position of third states in case of a violation of the law of armed conflicts As was mentioned above,78 the Court determined in Wall that ‘a great many rules of humanitarian law applicable in armed conflict . . . are essentially of an erga omnes character’. The Court specified that, as a consequence thereof, all states possess a legal interest in reacting to a violation of those rules. In the same Advisory Opinion, the Court went one important step further and held that, as a result of Article 1 of the Fourth Convention: every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with. [emphasis added]79

The Court went some way to give content to this obligation and identified the duties of all states not to recognize the illegal situation and not to render aid or assistance to its maintenance.80 The Court also held that:

76 77 78 80

Wall (n 5) para 152. Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening ) (n 9) para 94. 79 Wall (n 5) para 158. See 2.1.3: text accompanying n 25. Wall (n 5) para 159.


278

The Development of International Law by the ICJ

the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime taking due account of the present Advisory Opinion.81

As such, the Court has placed the avenue for collective action in the forefront without unambiguously rejecting the idea of a third state’s right (or even obligation) to adopt unilateral countermeasures.

2.4.2 Individual criminal responsibility As of yet, pronouncements by the Court on the law of war crimes remain few in number, and those pronouncements do not deal with specific questions of substantive international criminal law. In Jurisdictional Immunities, the Court confirmed the concept of war crimes as crimes under international law as established by the Nuremberg International Military Tribunal.82 In the Arrest Warrant case, the Court denied that there was an exception to immunity ratione personae before a foreign criminal court for international crimes.83 At the same time, the Court observed obiter that the international law on immunities did not represent a bar to criminal prosecution in the following circumstances: First, such persons [those holders of high-ranking office in a state, including the Foreign Office, enjoying international immunity ratione personae; CK] enjoy no immunity under international law in their own countries, and may thus be tried by those countries’ courts in accordance with the relevant rules of domestic law. Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity. Thirdly, after a person ceases to hold the office of Minister of Foreign Affairs, he or she will no longer enjoy all the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity. Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter’s Statute expressly provides, in Article 27, paragraph 2, that ‘[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person’.84

81

Wall (n 5) para 160. Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening ) (n 9) para 81 in conjunction with para 52. 83 Arrest Warrant (n 7) para 58. 84 Arrest Warrant (n 7) para 61. 82


The Law of Armed Conflicts

279

2.5 Humanitarian assistance In Nicaragua, the Court found that the provision of strictly humanitarian aid to persons or forces in another country during a non-international armed conflict did not constitute an intervention and was also otherwise lawful under international law. According to the Court, such lawful humanitarian assistance presupposes that such assistance is limited to the purposes of preventing and alleviating suffering, protecting life and health, and ensuring respect for the human being, and that it is given without discrimination to all in need.85

2.6 The law of neutrality It has already been mentioned86 that the Court, in Nuclear Weapons, found that ‘the principle of neutrality . . . is applicable to all international armed conflict’. In the same Advisory Opinion, the Court considered this principle to be ‘of a fundamental character similar to that of the humanitarian principles and rules’.87 This strongly suggests that the Court believed in the customary nature of the principle. The Court refrained, however, from specifying the principle’s content. Instead it referred to the legal view as formulated by Nauru during the advisory proceedings: The principle of neutrality, in its classic sense, was aimed at preventing the incursion of belligerent forces into neutral territory, or attacks on the persons or ships of neutrals. Thus: ‘the territory of neutral powers is inviolable’ (Article 1 of the Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, concluded on 18 October 1907); ‘belligerents are bound to respect the sovereign rights of neutral powers . . . ’ (Article 1 to the Hague Convention (XIII) Respecting the Rights and Duties of Neutral Powers in Naval War, concluded on 18 October 1907), ‘neutral states have equal interest in having their rights respected by belligerents . . . ’ (Preamble to Convention on Maritime Neutrality, concluded on 20 February 1928). It is clear, however, that the principle of neutrality applies with equal force to transborder incursions of armed forces and to the transborder damage caused to a neutral State by the use of a weapon in a belligerent State.88

As the Court did not explicitly endorse that statement, its status in the Advisory Opinion is not entirely clear. The most plausible way to read the Opinion in this context is to assume that the Court embraced Nauru’s position implicitly and included the principle of neutrality into that body of principles and rules or the law of armed conflicts which, according to this view, will ‘generally’ be violated by a use of nuclear weapons. It must be acknowledged, however, that such a reading is not unambiguously borne out by the wording of the relevant passages of the Advisory Opinion.

85 87

Nicaragua (Merits) (n 2) para 242. Nuclear Weapons (n 4) para 89.

88

86 See 2.1.4; text accompanying n 33. Nuclear Weapons (n 4) para 88.


280

The Development of International Law by the ICJ

3. Some reflections on the character and style of the Court’s jurisprudence An exhaustive legal commentary on the Court’s case law would probably not reveal any clear-cut error of law. It would, however, certainly bring to light a significant number of more or less controversial legal statements, some of which the Court made without much or even any legal reasoning. It is open to serious doubt, for example, whether a belligerent occupation presupposes the exercise of actual authority by a foreign force (as the Court held without much supporting legal analysis in DRC v Uganda 89), or whether the ability of such a force to exert authority over a specific area does not suffice.90 It is also surprising, to mention one more example, how laconically the Court, in Wall, dealt with the ‘legal oddity’ of Article 6, paragraph 3 of Geneva Convention IV on prolonged belligerent occupation,91 even if, at the end of the day, the Court could not avoid that provision’s application to Israel’s belligerent occupation of the Palestinian territories.92 I shall refer to some more examples of ‘light statements’ of this kind later, but I shall not draw up a complete list, because it is not the purpose of this essay to present an exhaustive legal commentary of the judicial acquis. In the following section, I am instead interested primarily in the character and style of the Court’s jurisprudence.93

3.1 More moderation than thirst for adventure in the laboratory of legal experimentation In 1989, Luigi Condorelli characterized the law of armed conflicts as a ‘laboratory of legal experimentation’. He listed the obligation erga omnes, the undertaking under Common Article 1 of the Geneva Conventions to ‘ensure respect’ for the Conventions, and the category of jus cogens among the innovative legal doctrines that a deeper study of the law of armed conflicts could bring to light, and which,

89

See 2.2.2.1; text accompanying n 48. In the latter sense, see the Separate Opinion of Judge Kooijmans in DRC v Uganda (n 6) paras 47–9; the expert views as recorded in T Ferraro (ed), Occupation and other Forms of Administration of Foreign Territory (Geneva: International Committee of the Red Cross, March 2012) 19; see also S Verhoeven, ‘A Missed Opportunity to Clarify the Modern Ius Ad Bellum. Case Concerning Armed Activities on the Territory of the Congo’ (2006) 45 Military L & L of War Rev 355, 361–2. 91 See 2.2.2. 92 On the controversies surrounding Art 6, para 3 of the Fourth Convention, see, generally, A Roberts, ‘Prolonged Military Occupation: The Israeli-Occupied Territories 1967–1988’ in E Playfair (ed), International Law and the Administration of Occupied Territories (Oxford: OUP, 1992) 36–9 (using the term ‘legal oddity’ at 38); for a critique of the manner in which the Court applied Art 6, para 3 to the Israeli occupation, see A Imseis, ‘Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion’ (2005) 99 AJIL 102, 105–9; for criticisms of the ICJ’s approach to Art 6, para 3, see also the expert views as recorded in Ferraro (n 90) 77–8. 93 A reader familiar with Sir Hersch Lauterpacht’s The Development of International Law by the International Court (London: Stevens & Sons, 1958) will recognize that the selection of topics was inspired by this magnum opus. 90


The Law of Armed Conflicts

281

once discovered in that area, could then spill over into international law more broadly.94 It is essentially the Wall Opinion that marked the beginning of the Court’s work in this laboratory. In light of its famous dictum in Barcelona Traction, it did not come as a surprise that the Court applied the concept of the obligation erga omnes to the law of armed conflicts. The much more remarkable engagement with legal experimentation consisted in the determination that the undertaking to ‘ensure respect’ in Common Article 1 of the Geneva Conventions means that all states parties to the Conventions, whether or not they are party to the relevant armed conflict, are under a duty to react to violations of those Conventions. With this finding, the Court (implicitly) endorsed an interpretation which had famously been put forward by Jean S Pictet in his Commentaries on the Geneva Conventions95 and which has subsequently been taken up and elaborated upon by Luigi Condorelli and Laurence Boisson de Chazournes.96 In 1999, however, this reading of Common Article 1 was powerfully challenged by Frits Kalshoven.97 Kalshoven reminded his readers how surprisingly progressive it would have been for states in 1949 to enshrine a duty of third states to react to breaches of the law of armed conflicts and he demonstrated that the travaux préparatoires did not reveal such an intention. In light of those counterarguments and in light of the fact that subsequent state practice relating to Common Article 1 could hardly be said to support the progressive interpretation, the Court appeared thirsty for adventure when it embraced such an interpretation without any regard for the contrary point of view98—notwithstanding the fact that it refrained from elaborating too much on the precise contours of the duty of third states to react. Such thirst for adventure has, however, remained the exception. Instead, the Court has shown an almost curious degree of moderation with respect to the recognition of the concept of jus cogens. Given the Court’s jurisprudence on the basic principles of the law of armed conflicts as expressions of elementary considerations of humanity, in light of the textual argument provided by the formulation of a common provision of the Geneva Conventions (Articles 51, 52, 131, and 148),99 and finally with a view to the fact that in 1995 the International Criminal Tribunal for the Former Yugoslavia (ICTY) had recognized the jus cogens 94 L Condorelli, ‘Le droit international humanitaire en tant qu’atelier d’expérimentation juridique’ in W Haller, A Kötz, G Müller and D Thürer (eds), Im Dienst der Gemeinschaft: Festschrift für Dietrich Schindler zum 65. Geburtstag (Basel: Helbing Lichtenhahn, 1989) 193–200. 95 JS Pictet, La Convention de Genève pour l’amélioration du sort des blessés et des maladies dans les forces armées en campagne (Geneva: International Committee of the Red Cross, 1952) 27. 96 L Condorelli and L Boisson de Chazournes, ‘Quelques remarques à propos de l’obligation des états de “respecter et faire respecter” le droit international humanitaire “en toutes circonstances” ’ in C Swinarski (ed), Etudes et essais sur le droit international humanitaire et sur les principes de la CroixRouge en l’honneur de Jean Pictet (Dordrecht: Martinus Nijhoff, 1984) 17–35; L Condorelli and L Boisson de Chazournes, ‘Common Art 1 of the Geneva Conventions revisited: Protecting Collective Interests’ (2000) 82 IRRC 67–86. 97 F Kalshoven, ‘The Undertaking to Respect and Ensure Respect in all Circumstances: From Tiny Seed to Ripening Fruit’ (1999) 2 Ybk Intl Hum L 3–61. 98 This omission was criticized by Judge Kooijmans in his Separate Opinion in Wall (n 5) 232–4, paras 46–51. 99 On this argument see Condorelli (n 94) 198.


282

The Development of International Law by the ICJ

character of most customary rules of international humanitarian law,100 one could have expected the Court to make a similar statement in 1996 in Nuclear Weapons. Instead, it introduced the new legal category of ‘intransgressible principles of international customary law’ in order to avoid a finding on the jus cogens issue.101 Even after having rejected, in Jurisdictional Immunities, an effort to derive farreaching legal consequences from the jus cogens nature of a norm, the Court remained careful not to determine positively that the rules of the law of armed conflicts in question were of such a nature. Again perhaps somewhat in contrast to the Court’s progressive approach to Common Article 1, but much more understandable as a matter of the lex lata, is its rejection of a war crimes exception to the international law immunity ratione personae before foreign courts in Arrest Warrant102 and its reluctance to recognize an international legal right to reparation of an individual victim of a war crime.103 All in all, Luigi Condorelli would probably agree that, apart from the concept of the obligation erga omnes and the idea of a duty of third states to react to violations of the law of armed conflicts, there is still considerable room for the ICJ to explore the latter body of law’s potential to serve as a laboratory of legal experimentation.

3.2 An emphasis on major principles In Nicaragua and Nuclear Weapons, the Court appeared to be particularly concerned with setting out the guiding principles of the law of armed conflicts. In the former decision, it established, within the realm of the ‘Geneva Law’, the existence of some ‘fundamental general principles of humanitarian law’ governing all armed conflicts,104 and in the latter Advisory Opinion the Court identified two ‘cardinal principles . . . constituting the fabric of humanitarian law’105 pertaining to the ‘Hague Law’. To those key principles the Court added in Nuclear Weapons the principle of ‘respect for the environment’106 as a relevant consideration in the law on the conduct of hostilities, and the ‘principle of neutrality’.107 Also with respect to the law of belligerent occupation, the Court was eager, both in Wall and in the DRC v Uganda case, to underline some overarching principles. In the former Advisory Opinion, the Court emphasized the protection of civilians as the main goal of Geneva Convention IV,108 and the Opinion set out some broad principles on the relationship between the law of armed conflicts and international human rights law.109 In the latter Judgment, the Court observed the relevance of ‘the applicable rules of international human rights law’ in giving Article 43 of the 1907 100 Prosecutor v Dusko Tadić, ‘Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction’ (Appeal Chamber) (2 October 1995) IT-94-1-AR72 (ICTY), para 143. 101 For a critique of the undue caution of the Court, see Judge Bedjaoui in his Declaration and Judges Weeramantry and Koroma in their Dissenting Opinions in Nuclear Weapons (n 4) para 21, and 496, 572–3, respectively. 102 See 2.4.2. 103 See 2.4.1.4. 104 See 2.2.1; quotation accompanying n 46. 105 See 2.3; quotation accompanying n 62. 106 See 2.3; quotation accompanying n 66. 107 See 2.6. 108 See 2.1; text accompanying n 23. 109 See 2.1.6; quotation accompanying n 40.


The Law of Armed Conflicts

283

Hague Regulations its proper contemporaneous meaning110 and formulated the idea that the old prohibition on pillage can be used to deal with exploitation of the occupied territory’s natural resources.111 While important principles governing the law of armed conflicts have received international judicial recognition, those principles have enjoyed only relatively little elaboration. This is readily understandable where the principle at stake is rather new and where the development of the law has not yet reached a stage of consolidation in every detail. This consideration would appear to apply to the interrelationship between the law of armed conflicts and the international law of human rights, the relevance of the latter body of law within the context of the occupying state’s basic duty under Article 43 of the 1907 Hague Regulations, the restraining force of the principle of respect for the natural environment on the conduct of hostilities, and the extension of the old prohibition on pillage to the field of exploitation of the occupied territory’s natural resources. In those contexts, which were perhaps not at the heart of the subject matter of the proceedings concerned, the Court has usefully opened the door for future legal developments, but wisely without foreshadowing them in detail. The usefulness of leaving the analysis at the level of a principle of high abstraction is less apparent, however, with respect to the ‘principle of neutrality’ as referred to in Nuclear Weapons. The Court was not only cryptic with respect to the question at stake as to whether and to what extent the use of nuclear weapons affects the ‘principle of neutrality’, but it also failed even to begin to clarify the distinct legal significance of the principle of neutrality vis-à-vis the principle of the inviolability of a state’s territory in times of peace.112 Somewhat ironically, the one firm statement made by the Court with respect to the ‘principle of neutrality’—that is, its applicability ‘to all international armed conflict’—is debatable in its sweeping form. The Court did not even mention the possibility that the law of neutrality could constitute the last area in which the concept of war retains a measure of legal significance.113 The Court’s reluctance to ascend from the level of first principles to more detailed legal reasoning constitutes even a major weakness of the Nuclear Weapons Opinion when it comes to the two ‘cardinal principles’ governing the choice of means of combat. In her Dissenting Opinion, Judge Higgins succinctly made the point: It is not sufficient, to answer the question put to it, for the Court merely briefly to state the requirements of the law of armed conflict (including humanitarian law) and then simply to move to the conclusion that the threat or use of nuclear weapons is generally unlawful by reference to these principles and norms . . . At no point in its Opinion does the Court engage in the task that is surely at the heart of the question asked: the systematic application of the 110

See 2.2.2.3; quotation accompanying n 52. See 2.2.2.3; quotation accompanying n 57. 112 C Dominicé, ‘The Question of the Law of Neutrality’ in Boisson de Chazournes and Sands (n 11) 200, 203–4. 113 C Greenwood, ‘Scope of Application of Humanitarian Law’ in D Fleck (ed), Handbook of International Humanitarian Law (Oxford: OUP, 2nd edn 2008) 45, 54 (marginal n 209); C Dominicé, ‘The Question of the Law of Neutrality’ in Boisson de Chazournes and Sands (n 11) 200, 203. 111


284

The Development of International Law by the ICJ

relevant law to the use or threat of nuclear weapons. It reaches the conclusions without the benefit of detailed analysis. An essential step in the judicial process—that of legal reasoning—has been omitted.114

It is only natural for a court to begin its jurisprudence in a given field of law by setting out a number of guiding principles. As Rosemary Abi-Saab observed in 1987, the Court may have had another idea in mind when it chose to place so much emphasis on broad principles: It is a question of political rather than legal strategy: by reducing the obligations of humanitarian law to a certain number of general principles, it is easier to see whether essentials have been violated and from the tactical point of view of scrutiny of application, it becomes possible to look beyond the details of the texts and concentrate on what is clear and fundamental.115

While this strategy worked well in Nicaragua, by the time of Nuclear Weapons, the limits of such a strategy in a situation where it was fundamentally unclear and hotly disputed which results the application of certain general principles to certain factual scenarios would yield, had been revealed.

3.3 Some early judicial activism in Nicaragua and much more subsequent judicial restraint in Nuclear Weapons In Nicaragua, the Court displayed a remarkably activist attitude towards the judicial development of the law of armed conflicts.116 The Court not only declared (rather than substantiated)117 Common Articles 1 and 3 of the Geneva Conventions to reflect customary international law, but it went even further and applied the duty to ensure respect under Common Article 1 within a context of non-international armed conflict and determined that Common Article 3 expressed a ‘minimum yardstick’ applicable also in cases of international armed conflicts.118 The transformation of Common Article 3 into a set of fundamental principles overarching all armed conflicts is particularly noteworthy for, as Judge Simma would later observe in his Separate Opinion to the DRC v Uganda Judgment,119 the Court thereby anticipated the residual protective regime, which transcends the nationality limitations under Article 4 of Geneva Convention IV, as established in 1977 by virtue of Article 75 of Additional Protocol I.

114

Dissenting Opinion of Judge Higgins, Nuclear Weapons (n 4) para 9. R Abi-Saab, ‘The “General Principles” of Humanitarian Law According to the International Court of Justice’ (1987) 27 IRRC 367, 368. 116 See (ICJ Judge) S Schwebel (writing in his scholarly capacity), ‘The Roles of the Security Council and the International Court of Justice in the Application of International Humanitarian Law’ (1994–5) 27 NYU J Intl L & Policy 731, who characterizes this part of the Nicaragua Judgment as an ‘essentially progressive contribution’. 117 On the brevity of the Court’s analysis, see T Meron, ‘The Geneva Conventions as Customary Law’ (1987) 86 AJIL 348, 351–8. 118 See 2.2.1; 2.4.2. 119 Separate Opinion of Judge Simma, DRC v Uganda (n 6) paras 28–9. 115


The Law of Armed Conflicts

285

The Court in Nuclear Weapons followed the path taken in Nicaragua when it declared, without much supporting analysis, that ‘a great many treaty rules of humanitarian law applicable in armed conflict’ embodied customary international law.120 However, the Nuclear Weapons Court demonstrated a considerable measure of judicial restraint in almost every other important respect. The judicial avoidance of the issues of jus cogens and belligerent reprisals has already been mentioned.121 Furthermore, the Court adopted a conservative interpretation of Article 23(a) of the 1907 Hague Regulations.122 More importantly, it adopted a ‘classic’ approach when it denied the existence of a customary rule specifically prohibiting the use of nuclear weapons. First, the Court stated that ‘the illegality of the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is formulated in terms of prohibition’123 and, second, despite the opinio juris of ‘a very large section of the international community’ to that effect, it felt unable to identify more than a ‘nascent’ opinio juris in support of the existence of a customary law prohibition in light of the dissent expressed by a minority of states through their support for the ‘practice of deterrence’.124 Equally importantly, the Court resisted the temptation to overcome the hurdle of this minority dissent to a customary law prohibition by reference to the Martens Clause.125 Instead of seizing the opportunity to recognize the ‘principles of humanity’ and ‘the dictates of public conscience’ as a means to lower the threshold for the identification of a new customary rule or even as an autonomous source of law, the Court used the Martens Clause only as an additional argument in support of the applicability of ‘the principles and rules of humanitarian law to nuclear weapons’.126 It is interesting to contrast the Court’s (non-)use of the Martens Clause in Nuclear Weapons with the manner by which the Clause would subsequently be relied upon by the ICTY in order to establish, despite the dissent expressed by a minority of states, the binding nature also for non-state parties of the prohibition on reprisals against civilians as contained in Article 51, paragraph 6 of Additional Protocol I for states parties and non-state parties alike. The ICTY held as follows: In the light of the way States and courts have implemented it, [the Martens Clause] clearly shows that principles of international humanitarian law may emerge through a customary process under the pressure of demands of humanity or the dictates of the public conscience, even where State practice is scant or inconsistent.127 120

121 See, respectively, 3.1 and 3.3. See 2.1.5; quotation accompanying n 34. For a progressive interpretation see E David, ‘Le statut des armes nucléaires à la lumière de l’Avis de la CIJ du 8 juillet 1996’ in Boisson de Chazournes and Sands (n 11) 210, 214–17. 123 Nuclear Weapons (n 4) para 52. 124 See 2.3; quotation accompanying n 60. 125 See 2.1.5. 126 Nuclear Weapons (n 4) para 87; for a critique of this conservative approach to the Martens Clause, see Dissenting Opinion of Judge Shahabuddeen, Nuclear Weapons (n 4) 405; see also Dissenting Opinion of Judge Weeramantry, Nuclear Weapons (n 4) 486–91. 127 Prosecutor v Kupreškić et al ‘Judgment’ (Trial Chamber) (14 January 2000) IT-95-16-T (ICTY) para 527; for a critique of this progressive use of the Martens Clause, see C Greenwood, ‘Belligerent Reprisals in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ in H Fischer, C Kreß and SR Lüder (eds), International and National Prosecution of Crimes Under International Law (Berlin: Berlin Verlag, 2001) 539, 553–4. 122


286

The Development of International Law by the ICJ

The activism of the Nicaragua Court and the restraint of the Nuclear Weapons Court may ultimately be susceptible to reconciliation to a greater extent than might seem possible at first sight. Both decisions recognize the possibility of declaring treaty provisions that enjoy widespread ratification as reflecting customary international law without the need to adduce a significant amount of further (in particular, non-state-party) practice in support of the respective customary rule. The Court felt entitled to so proceed—despite the famous ‘Baxter paradox’128— because of the ‘intrinsic humanitarian character’129 of the treaty provisions concerned and their intimate connection with ‘elementary considerations of humanity’,130 which is most apparent from the following passage in Nuclear Weapons: It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity’ as the Court put it in its Judgment of 9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.131

The Court’s jurisprudence on the law of armed conflicts therefore lends powerful support to the idea, at times captured by the concept of ‘modern custom’,132 that customary international law of an intrinsically humanitarian nature may come into existence without passing a most stringent ‘inductive’ test. Conversely, the Court’s denial of a specific customary law prohibition on the use of nuclear weapons resulted from a more traditional approach to the identification of a rule of customary law. It may safely be suspected that the Court resorted to this more cautious approach because it was acutely aware of the fact that the search for the customary rule in question was characterized by a tension between a strong humanitarian aspiration and important considerations of (an at least perceived) military necessity,133 so that a more activist approach had subjected the Court to the reproach of having acted as ‘judicial legislator’.134 128 RS Baxter, ‘Treaties and Custom’ [1970–I] 129 Recueil des Cours 27, 64 and 73: ‘as the number of parties to a treaty increases, it becomes more difficult to demonstrate what is the state of customary international law dehors the treaty . . . As the express acceptance of the treaty increases, the number of States not parties whose practice is relevant diminishes. There will be less scope for the development of international dehors the treaty’. 129 See 21.2; quotation accompanying n 22. 130 See 2.1.2. 131 Nuclear Weapons (n 4) para 79; Judge Shahabuddeen, in his Dissenting Opinion, Nuclear Weapons (n 4) 380, specifies that the ‘roots’ of those principles ‘reach into the past of different civilizations’; for a similar statement see Judge Weeramantry, Nuclear Weapons (n 4) 443, 478–82. 132 The concepts of ‘modern’ and ‘traditional custom’ are borrowed from AE Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’ (2001) 95 AJIL 757–91. 133 Cf the opening statement of Judge Schwebel in his Dissenting Opinion in Nuclear Weapons (n 4) 311: ‘More than any case in the history of the Court, this proceeding presents a titanic tension between State practice and legal principle.’ 134 Cf the critique addressed by Judge Oda to the authors of the request for an Advisory Opinion, Dissenting Opinion, Nuclear Weapons (n 4) 350, para 25: ‘It is to me quite clear that this request was prepared and adopted with highly political motives which do not correspond to any genuine legal mandate of a judicial institution.’


The Law of Armed Conflicts

287

3.4 An occasional ambition for exhaustiveness and a significant amount of selectivity in the legal analysis Parts of the Wall Opinion display a tendency to deal exhaustively with the relevant legal issues, thereby clarifying the law to the greatest extent possible. The Court could perhaps have avoided the controversial question of the applicability of Geneva Convention IV to the Occupied Palestinian Territories if it had opted to place exclusive reliance on customary international law. The Court, however, used the opportunity presented to it to clarify the scope of application of modern treaty law on belligerent occupation in conformity with the overwhelming international opinio juris.135 The Wall Court also displayed a certain eagerness to avail itself of the opportunity to condemn the Israeli settlements in the occupied territories as illegal despite the fact that the question of the legality of the settlements was not directly before it.136 The Court was able to bring Article 49, paragraph 6 of Geneva Convention IV directly into play because it construed this provision broadly to the effect that it also covered measures designed to protect illegally established settlements and even, it seems, measures that contributed to demographic changes in the occupied territory in any other way. Having thus established the relevance of Article 49, paragraph 6 to the legal evaluation of the construction of the barrier, it no longer seemed far-fetched for the Court to include in its Opinion the statement that, ‘since 1977, Israel has conducted a policy and developed practices involving the establishment of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6’.137 The Court’s inclination to condemn comprehensively the Israeli settlements in the Occupied Territories is readily understandable from a legal policy perspective. This should not, however, detract attention from the fact that the legal argument which the Court provided in support of its broadening the scope of application of Article 49, paragraph 6 so widely as to include any contribution to demographic changes in an occupied territory, can at best be called thin. This brevity in the legal analysis is particularly deplorable in light of the fact that intentional violations of Article 49, paragraph 6 constitute war crimes under Article 8, paragraph 2(b)(viii) of the Statute of the International Criminal Court.138 The Wall Court’s ambition for exhaustiveness therefore came at the price of cursory legal reasoning. The Wall Opinion also turns out to be quite selective in its legal analysis in certain other respects, such as the statement that the prohibition on destroying or seizing the enemy’s property as contained in Article 23(g) of the 1907 Hague Regulations was inapplicable in the West Bank because that territory was under belligerent occupation.139 This legal position implies that the state of hostilities 135 See 2.1.4; Imseis (n 92) 103–5 holds the view that the Court could have engaged more fully with the contrary Israeli position. 136 See 2.2.2.3. 137 Wall (n 5) para 120. 138 For a similar view see D Kretzmer, ‘The Advisory Opinion: The Light Treatment of International Humanitarian Law’ (2005) 99 AJIL 88, 89–94. 139 See 2.2.2.3.


288

The Development of International Law by the ICJ

(within the meaning of Section II of the Hague Regulations) and the state of belligerent occupation (within the meaning of Section III of the Hague Regulations) are mutually exclusive. Israel, however, had argued that it had erected the barrier in response to the eruption of non-state armed violence after the year 2000, at which point it had reached the intensity and organization levels of an armed conflict. The question before the Court was therefore whether it is legally conceivable that a (non-international) armed conflict can take place within an occupied territory. Unfortunately, the Court chose to ignore this legal issue,140 the significance of which far exceeds that of the advisory proceedings before it.141 Furthermore, the Court’s view, that the erection of the barrier violated Articles 46 and 52 of the 1907 Hague Regulations, suffers from a superficial legal explanation.142 The interpretation of both provisions concerned gives rise to important legal questions. It is unclear, to mention only the two most important questions of relevance in the Wall proceedings,143 whether Article 46 also covers the temporary requisition of land, and it is open to doubt whether Article 52 covers immovable property. The Court mentioned neither of those questions and through this ‘light