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First: Edit:ion

Professor o f Public International La'H/;, L.Tniversity o f Bristol

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 OXFORD
UNIVERSITY PRESS OUTLINE CONTENTS
Great Clarendon Street, Oxford oX2 6DP
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 in INTRODUCTION: INTERNATIONAL LAW IN PRACTICE
Oxford New York
Auckland Bangkok Buenos Aires Cape Town Chennai REFLECTIONS FROM THE INTERNATIONAL COURT 3
Dar es Salaam Delhi Hong Kqng Istanbul Karachi Kolkata
Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi
HE Judge Rosalyn Higgins, DBE, QC
Sao Paulo Shanghai Taipei Tokyo Toronto
Oxford is a registered trade mark of Oxford University Press THE PINOCHET CASE-SOME PERSONAL REFLECTIONS 7
in the UK and in certain other countries The Rt Han The Lord Millett
Published in the United States
by Oxford University Press Inc., New York
THE PERSPECTIVE OF INTERNATIONAL LAW -FROM THE BAR 11
© Editorial material and arrangement Malcolm D. Evans 2003
Ian Brownlie, CBE, QC
© Individual chapters-the several contributors 2003
The moral rights of the author have been asserted
REFLECTIONS FROM THE PRACTICE OF INTERNATIONAL LITIGATION 15
Database right Oxford University Press (maker)
Campbell McLachlan
First published2003
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, A PERSONAL PERSPECTIVE ON INTERNATIONAL LAW 21
without the prior permission in writing of Oxford University Press, Ralph Zacklin, Assistant Secretary-General, United Nations
or as expressly permitted by law, or under terms agreed with the appropriate
reprographics-rights organizations. Enquiries concerning reproduction
outside the scope of the above should be sent to the Rights Department, THE PERSPECTIVE OF A FOREIGN MINISTRY LEGAL ADVISER 25
Oxford University Press, at the address above Michael Wood
You must not circulate this book in any other binding or cover
and you must impose this same condition on anyacquirer
British Library Cataloguing in Publication Data
Data available
ISBN 0-19-925114-2 PART I THE HISTORY AND THEORY OF INTERNATIONAL LAW
3 5 7 9 10 8 6 4 2
Typeset in Adobe Minion A SHORT HISTORY OF INTERNATIONAL LAW 31
by RefineCatch Limited, Bungay, Suffolk Stephen C Neff
Printed in Great Britain by
TJ International Ltd, Padstow, Cornwall
2 SOME COMMON HERESIES ABOUT INTERNATIONAL LAW:
SUNDRY THEORETICAL PERSPECTIVES 59
lain Scobbie

3 WHAT IS INTERNATIONAL LAW FOR? 89

Martti Koskenniemi

PART II THE STRUCTURE OF INTERNATIONAL OBLIGATION

4 THE SOVRCES OF INTERNATIONAL LAW 117

Hugh Thirlway
vi, . OUTLINE CONTENTS OUTLINE CONTENTS vii

5 INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 145 15 ISSUES OF ADMISSIBILITY AND THE LAW ON INTERNATIONAL
Dinah Shelton RESPONSIBILITY 473
Phoebe Okowa
6 THE PRACTICAL WORKING OF THE LAW OF TREATIES 173
Malgosia Fitzmaurice

PART VI RESPONDING TO BREACHES OF

INTERNATIONAL OBLIGATIONS
PART III THE SUBJECTS OF THE INTERNATIONAL
LEGAL ORDER 16 COUNTERMEASURES AND SANCTIONS 505
ND White and A Abass
7 STATES AND RECOGNITION IN INTERNATIONAL LAW 205
Colin Warbrick
17 THE MEANING OF DISPUTE SETTLEMENT 529
John Merrills
8 INTERNATIONAL ORGANIZATIONS 269
DapoAkande
18 THE INTERNATIONAL COURT OF JUSTICE 559
Hugh Thirlway
9 THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 299
Robert McCorquodale
19 THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 589
Christine Gray

PART IV 'THE SCOPE OF SOVEREIGNTY

10 JURISDICTION 329 PART VII THE APPLICATION OF INTERNATIONAL LAW

Vaughan Lowe
20 THE LAW OF THE SEA 623
11 INTERNATIONAL LAW AND RESTRAINTS ON THE EXERCISE OF
Malcolm D Evans
JURISDICTION BY NATIONAL COURTS OF STATES 357
Hazel Fox 21 INTERNATIONAL ENVIRONMENTAL LAW 657
Catherine Redgwell
12 IMMUNITIES ENJOYED BY OFFICIALS OF STATES AND
INTERNATIONAL ORGANIZATIONS 387 22 INTERNATIONAL ECONOMIC LAW 689
. Chanaka Wickremasinghe Gerhard Loibl

13 THE RELATIONSHIP BETWEEN INTERNATIONAL AND 23 INTERNATIONAL CRIMINAL LAW 721

NATIONAL LAW 415 Antonio Cassese
Eileen Denza
24 INTERNATIONAL PROTECTION OF HUMAN RIGHTS 757
Henry J Steiner

PART V RESPONSIBILITY 25 THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 789

Christopher Greenwood
14 THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY 445
James Crawford and Simon Olleson
 CONTENTS ix

v The Nineteenth Century (1815-1919) 41

CONTENTS A The Positivist Tradition 41
B Natural-law Remnants 46
'C The Historicist (or <Romantic') Tradition 47
INTRODUCTION 'BY THE EDITOR xxvi
VI The Twentieth and Twenty-first Centuries (1919- 50
NOTES ON CONTRIBUTORS xxviii
ABBREVIATIONS xxxiii A The Inter-war Period 50
TABLE OF INTERNATIONAL INSTRUMENTS xxxix B After 1945 52
TABLE OF INTERNATIONAL CASES xlvi 56
VII Conclusion
TABLE OF STATUTES BY COUNTRY xlix
TABLE OF DOMESTIC CASE LAW BY COUNTRY 1 References 56
Further Reading 58

2 SOME COMMON HERESIES ABOUT INTERNATIONAL LAW:

INTRODUCTION: INTERNATIONAL LAW IN PRACTICE
SUNDRY THEORETICAL PERSPECTIVES 59
lain Scobbie
REFLECTIONS FROM THE INTERNATIONAL COURT 3
HE Judge Rosalyn Higgins, DBE, QC Summary 59
I Introduction: Theory Matters 60
THE PINOCHET CASE-SOME PERSONAL REFLECTIONS 7
II What is a <Theory' and What is it For? 61
The Rt Hon The Lord Millett
III The Legal Structure of the Cold War: Liberal Democracy Versus
THE PERSPECTIVE OF INTERNATIONAL LAW FROM THE BAR 11 67
Marxist-Leninism
Ian Brownlie, CBE, QC
A The New Haven School 68
REFLECTIONS FROM THE PRACTICE OF INTERNATIONAL B Soviet Theory 72
LITIGATION 15 C New Haven and Soviet Approaches Compared 76
Campbell McLachlan 78
IV New Order For a New World?
A PERSONAL PERSPECTIVE ON INTERNATIONAL LAW 21 V And in the End 82
Ralph Zacklin, Assistant Secretary-General United Nations 83
References
THE PERSPECTIVE OF A FOREIGN MINISTRY LEGAL ADVISER 25 Further Reading 86
Michael Wood
3 WHAT IS INTERNATIONAL LAW FOR? 89
Martti Koskenniemi
PART I THE HISTORY AND THEORY OF INTERNATIONAL LAW Summary 89
The Paradox of Objectives 89
A SHORT HISTORY OF INTERNATIONAL LAW 31
Stephen C Neff II Converging Interests? 91

31 III The Significance of Statehoo,d 94

Summary
I Introduction 31 IV Into Pragmatism? 97

II Ancient Worlds 32 V A Tradition of Anti-Formalism 100

III The Middle Ages: The Natural Law Era 34 VI Instrumentalism, Formalism, and the Production of an
37 International Political Community 103
IV The Classical Age (1600-1815)
x CONTENTS CONTENTS xi

VII Beyond Instrumentalism and Formalism 105 B Hierarchy Among Treaties Governing the Same Topic 163
VIII Between Hegemony and Fragmentation: A Mini-history 108 C Hierarchy Among Regimes 164

IX Legal Formalism and International Justice 110 IV 'Soft Law' 166

References 112 V Conclusion 17l
References 171
Further Reading 172

PART II THE STRUCTURE OF INTERNATIONAL OBLIGATION

6 THE PRACTICAL WORKING OF THE LAW OF TREATIES 173
Malgosia Fitzmaurice
4 THE SOURCES OF INTERNATIONAL LAW 117
Hugh Thirlway Summary 173

Summary 117 I Introduction 173

I Introduction: What are Sources of Law? 117 II Basic Concepts and Structures 174
II The Enumeration of the Traditional Sources of International Law: A What is a Treaty? 174
Article 38 of the Statute of the International Court of Justice 120 B The Vienna Conventions 175
A Treaties and Conventions in Force 121 III The Anatomy of a Treaty 177
B Custom 124 A The Making of Treaties 177
C The General Principles of Law 130 Authority to Conclude Treaties 177
B
D Subsidiary Sources: Judicial Decisions and Teachings 132 178
C Expression of Consent to be Bound
III The Relationship Between the Sources of International Law 134 D Invalidity of Treaties 180
A Relationship Between Treaty and Custom 134 E Amendment and Modification 181
B The Hierarchy of Sources 136 F Termination and Suspension of the Operation of Treaties 182
IV Is the Enumeration of Article 38 Exhaustive? Possible New or IV The Scope of Legal Obligations 183
Additional Sources 138
A The Principle Pacta Sunt Servanda . 183
A How Can New Sources Come into Existence? 138 Treaties and Third States 184
B
B Some Additional Sources or Quasi-Sources That Have Been Suggested 139
V General Principles of Interpretation 185
V Conclusion 142
A General Issues 185
References 143 186
B Practice
Further Reading 143 C .Travaux Preparatoires 188
D The Object and Purpose of a Treaty 189
5 INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 145
E The Principle of Effectiveness 189
Dinah Shelton
F Plurilingual Treaties 190
Summary· 145
VI Reservations to Treaties 191
Introduction: The Concept of Relative Normativity 145
A The Genocide Convention Case 191
II The Assertion of Peremptory Norms 150 B The Regime of the 1969 Vienna Convention 192
III Hierarchy Among Conflicting Norms and Procedures 159 C The Problem of Reservations to Human Rights Treaties 194
A Hierarchy Within a Single Treaty 160 D Interpretative Declarations 195
xii CONTENTS CONTENTS xiii

VII Problems Concerning the Grounds for Termination 196 8 INTERNATIONAL ORGANIZATIONS 269
A Material Breach 196 DapoAkande
B Supervening Impossibility of Performance 198 Summary 269
C Fundamental Change of Circumstances 198 I Introduction 269
VIII Conclusion 200 A History and Role of International Organizations 270
References 200 B Definition, Distinctions, and Differences 270
Further Reading 201 C Is there a Common Law of International Organizations? 271
II Legal Personality 272
A Personality in International Law 270
PART III THE SUBJECTS OF THE INTERNATIONAL Objective Legal Personality and Relations with Non-member States 275
B
LEGAL ORDER
C Personality in Domestic Law 276
7 STATES AND RECOGNITION IN INTERNATIONAL LAW 205 III Interpretation of Constituent Instruments 278
Colin Warbrick
A Who is Empowered to Interpret? 278
Summary 205
B What are the Relevant Principles of Interpretation to be Applied? 280
I States 206
IV Powers of International Organizations 282
A Introduction 206
B History 210 A Implied Powers 282

C Self-determination 213 B Decision-making Powers 283

D Personality-What it means to be a Legal Person 217 C Ultra Vires Decisions of International Organizations 285

E Statehood as Personality-What it takes to be a State 220 V Privileges and Immunities 286

F The Rights and Duties of States-What it means to be a State 231 A Sources of Privileges and Immunities 286
G The (Juridical' State 232 B Scope of Privileges and Immunities 287
H Conclusion . 236 VI The United Nations System 291
II Recognition 236 The Structure of the United Nations 291
A
A Introduction 236 B Principal Organs of the United Nations 293
B The Tinoco Arbitration 238
VII Conclusion 295
C Legal Nature, Legal Consequences of the Recognition Decision 238
References 296
D Recognizing, Not Recognizing, Non-recognition 241
E Recognition of Governments 242 Further Reading 297
F International and Domestic Legal Consequences 247
G The Declaratory/Constitutive Debate 248
H International Organizations-Membership and Credentials 250 9 THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 299
Practice-the Soviet Union and Yugoslavia After 1989 254 Robert McCorquodale
Constituting States-State-building 259 Summary 299
III Conclusion 261 Introduction 299
References 262 A The Individual 300
Further Reading 266 B Individuals in the International Legal System 300
xiv CONTENTS CONTENTS XV

II International Rights and Responsibilities 304 IV Conclusion 353

A Individual Rights 304 References 354
B Individual Responsibility 306 Further Reading 354
III International Claims 307
11 INTERNATIONAL LAW AND RESTRAINTS ON THE EXERCISE OF
A Bringing International Claims 307
JURISDICTION BY NATIONAL COURTS OF STATES 357
B International Human Rights Law 309
Hazel Fox.
C International Economic Law 311
Summary 357
D Immunities 314
I Introduction 357
IV Creation, Development, and Enforcement of International Law 314
II State Immunity 359
A Right of Self-Determination 315
B Indigenous Peoples 316 A Origins of the Plea of State Immunity 359
C Non-governmental Organizations 317 B Development of the Common Law Relating to State Immunity 359
D Jurists 320 C Development in Civil Courts and the USA 361
D Present Day Sources of the International Law of State Immunity 362
V Conclusions 321
E The Elements Constituting the Plea of State Immunity 363
References 322
F Definition of the Foreign State for the Purpose of State Immunity 366
Further Reading 325 G Exceptions to Adjudication Jurisdiction 366
H Immunity from Execution 371
III The Other Two Avoidance Techniques 376
PART IV THE SCOPE o.F SOVEREIGNTY
A Act of State 376
10 JURISDICTION 329 B Non-justiciability 377
Vaughan Lowe IV The Three Avoidance Techniques Compared 378
Summary 329 V The Arguments For and Against the Use of Avoidance Techniques 380
Introduction 329 VI Challenges to Immunity and Judicial Restraint 381
A The Meaning of <Jurisdiction' 329 VII Conclusion 383
B The Significance of the Principles of Jurisdiction 330
References 384
'C The Doctrinal Analysis of Jurisdiction 331
Further Reading 384
II Prescriptive Jurisdiction 333
A The Territorial Principle 336 12 IMMUNITIES ENJOYED BY OFFICIALS OF STATES AND
B The National Principle '339 INTERNATIONAL ORGANIZATIONS 387
Chanaka Wickremasinghe
C The Protective Principle 342
Summary 387
D The Universal Principle 343
E Treaty-Based Extensions of Jurisdiction 343 I Introduction 388
F Controversial Bases of Prescriptive Jurisdiction 345 II Diplomatic Relations 391
G Inadequacies of the Traditional Approach 347 A The Scheme of the Vienna Convention on Diplomatic Relations 392
III The Fundamental Principle Governing Enforcement Jurisdiction 351 B Jurisdictional Immunities 395
XVI CONTENTS CONTENTS xvii

C Remedies in Cases of Abuse 396 E Can a Treaty Prevail Over a National Constitutional Norm? 434
III Consular Relations 397 F Should the Executive Direct or Guide the National Court? 434
IV Heads of State, Heads of Government, and Ministers for Foreign G Should a National Court Apply a Foreign Law which Conflicts with
Affairs 398 International Law? 436

A Heads of State 398 H Are there Questions of International Law which National Courts
should Decline to Answer? 437
B Heads of Government and Ministers for Foreign Affairs 400
VI Conclusion: Elements of a Happy Relationship 439
V Special Missions 401
References 440
VI The Immunities of Other State Officials 403
Further Reading 441
VII Officials of International Organizations 404
VIII The Scope of Irnmunities-Immunity and Impunity Distinguished 406
IX Conclusions 411 PART V RESPONSIBILITY
References 411
14 THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY 445
Further Reading ·413 James Crawford and Simon Olleson

13 THE RELATIONSHIP BETWEEN INTERNATIONAL AND

Summary 445

NATIONAL LAW 415 The Scope of International Responsibility: Introduction and

Eileen Denza Overview 446

Summary 4.15 II State Responsibility: Issues of Classification and Characterization 449

I Introduction 415 A Responsibility under International or National Law? 449

B The Typology of State Responsibility 450
II The Approach of International Courts and Tribunals 416
III The Elements of State Responsibility 453
A Where National Law Causes Breach of International Law 417
B International Law Looks Mainly to the Result 419 A Attribution of Conduct to the State 454
B Breach of an International Obligation of the State 458
III The Approach of National Parliaments and National Courts 420
C Circumstances Precluding Wrongfulness: Defences or Excuses for
IV The Spectrum of Constitutional Rules 422
Breaches of International Law 462
A The Netherlands 422
IV The Content of International Responsibility 465
B Germany 423
V Invocation of Responsibility: Responses by the Injured State and
C France 424 Other States 468
D Russia 424
VI Conclusion: Further Development of the Law of International
E The United States 425 Responsibility? 470
F The United Kingdom 426
References 471
V Some Problems Which Arise in National Courts 428 Further Reading 471
A Does a Rule of Customary International Law Prevail Over
Conflicting National Law? 428 15 ISSUES OF ADMISSIBILITY AND THE LAW ON INTERNAT,IONAL
B What is the Meaning of an International Law Rule in the Context of RESPONSIBILITY 473
Domestic Law? 429 Phoebe Okowa
C Is the International Rule Directly Applicable and Directly Effective? 430 Summary 473
D Does a Treaty Prevail Over Inconsistent National Law? 432 I Introduction 474
 xviii CONTENTS CONTENTS xix

II Legal Interest as a Pre-requisite to Admissibility of Claims 474 D Countermeasures and Third States 514
A Rationale of International Law Rules on Locus Standi 475 III Economic Coercion 518
B Modalities of Establishing of Legal Interest 476 IV Sanctions 522
III The Bases of Diplomatic Protection 477 A Definition of Sanctions 522
A Nationality as the Basis of Legal Interest in Indirect Claims 477 B Limitations upon Sanctions 524
B Establishing Nationality for Purposes of Diplomatic Protection 479 V Conclusion 526
C The Nationality of Corporations 483 References 527
D Applying the Nationality Rule 485 Further Reading 528
IV Admissibility in Cases Concerning Obligations Owed to a Plurality
of States 488 17 THE MEANS OF DISPUTE SETTLEMENT 528
John Merrills
A Introduction 488
B Treaty Instruments Protecting Collective Interests 490 Summary 529
C Litigation in the Public Interest and the Enforcement of Erga Omnes I Introduction 529
Obligations 490 II Diplomatic Methods 531
V Admissibility of Claims and the Rule on Exhaustion of Local Remedies 493 A Negotiation 531
A Introduction 493 B Mediation 533
B The Content of the Rule 494 C Inquiry 535
C The Application of the Rule in the Context of Mixed Claims 495 D Conciliation 537
D Nature of the Rule 497 539
III Legal Methods
E Which View Represents the Law? 498
A Arbitration 539
F The Exclusion of the Local Remedies Rule 499
B The International Court of Justice 541
VI Conclusion 500 C Other Courts and Tribunals 543
References 501 D The Place of Legal Methods 544
Further Reading 502 IV International Organizations and Dispute Settlement 547
A Regional Organizations 547
B The United Nations 548
PART VI RESPONDING TO BREACHES OF
C The Charter System in Practice 550
INTERNATIONAL OBLIGATIONS
D The Value and Limitations of Organizations 552
16 COUNTERMEASURES AND SANCTIONS 505 V Conclusion 553
ND White and A Abass 554
References
Summary 505 557
Further Reading
Introduction: Self-help in International Law 505
II 18 THE INTERNATIONAL COURT OF JUSTICE 559
Countermeasures 508
Hugh Thirlway
A Definition of Countermeasures 508
Summary 559
B Reprisals and Retorsion 510
C Limitations upon Countermeasures and other Non-forcible I Introduction 559
Measures taken by States 512 II History 560

L
xx CONTENTS CONTENTS XXI

III Structure and Composition 562 G The Role of the Security Council 606
N Procedure 564 V The Use of Force Under Chapter VII UN Charter 608
V The Court's Jurisdiction 566 A Measures Under Article 41 608
A Jurisdiction: Structural Limitations 566 B The Use of Force Under Chapter VII UN Charter 608
B Jurisdiction in Particular Cases 568 C Implied Authorization of Force? 610
C Jurisdiction and its Exercise 571 VI UN Peacekeeping 610
D Verification of Jurisdiction and Admissibility: Preliminary Objections 572
A The Inception of Peacekeeping 610
VI Other Incidental Proceedings 574 B Peacekeeping After the End of the Cold War 611
A Requests for the Indication of Provisional Measures 574 C The Transformation of Peacekeeping: Yugoslavia and Somalia 1991-95 612
B Parties: Joinder of Cases; Intervention by Third States 576 D Peacekeeping in Africa 613
C Interpretation and Revision of Judgments 579 E Peacekeeping After the Brahimi Report 614
VII Effect of the Decisions of the Court 579 VII Regional Action Under Chapter VIII UN Charter 614
VIII Advisory Proceedings 582
A A Greater Role for Regional Organizations 615
IX The Court Past and Present: An Assessment 585 B Controversy as to the Interpretation of Chapter VIII 615
Further Reading 587 C The OECS Intervention in Grenada (1983) 616
D Regional Peacekeeping After the Cold War 616
19 THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 589
Christine Gray VIII Conclusion 618

Summary 589 References 618

I Introduction 589 Further Reading 619

A The UN Charter Scheme 590

II The Prohibition of the Use of Force in Article 2(4) UN Charter 591 PART VII THE APPLICATION OF INTERNATIONAL LAW
A The Use of Force in 'International Relations' 592
B The Meaning of 'Threat or Use of Force' 20 THE LAW OF THE SEA 623
592
Malcolm D Evans
C The Use of Force 'Against the Territorial Integrity and Political
Independence of Any State,- or in Any Other Manner Inconsistent Summary 623
with the Purposes of the United Nations' 593 Introduction 623
D Humanitarian Intervention 595 626
II Constructing Baselines
III Intervention, Civil Wars, and Invitation 598 A Introduction: The Normal Rule 626
IV Self-defence 599 B Straight Baselines 626
A The Scope of Self-defence: Necessity and Proportionality 600 C Bays 627
B Anticipatory or Pre-emptive Self-defence 601 D Archipelagoes 628
C The Meaning of 'Armed Attack' 602 III The Internal Waters, Territorial Sea, and Contiguous Zone 629
D The Use of Force in Protection of Nationals 602 A Introduction 629
E Self-defence Against Terrorism 603 B Jurisdiction of the Coastal State 630
F Collective Self-defence 605 C Navigation in the Territorial Sea 632
 xxii CONTENTS CONTENTS xxiii

IV The High Seas 637 E Conservation of Nature 677

A The Freedoms of the Seas 637 F Conservation of Marine Living Resources 683
B The Exceptions to Flag State Jurisdiction 638 VIII Conclusion 685
C Conclusion 641 References 685
V Resource Jurisdiction 642 Further Reading 687
A The Continental Shelf 642 /"l ..

B The Exclusive Fishing Zone 644 (r22)INTERNATIONAL ECONOMIC LAW 689

C The Exclusive Economic Zone 644. \....../ Gerhard Loibl
D The Deep Sea Bed 646 Summary 689

VI Delimitation of Maritime Zones between Opposite or Adjacent States 647 I Introduction 689

A Equidistance or Equitable Principles? 648 II International Finance Law 691

B Factors Affecting Delimitation 649 A The International Monetary Fund (IMF) 691
B The World Bank Group 695
VII Fisheries 650
C Regional Development Banks 699
A The Basic Scheme of Regulation 650
D Concluding Remarks 699
B Managing Fisheries 651
TIl International Trade Law 700
VIII Conclusion 654
A The General Agreement on Tariffs and Trade (GATT) and the World
References 654
Trade Organization (WTO) 700
Further Reading 657 700
B The World Trade Organization
.7'0--'
C International Commodity Agreements 708
( 2~'NTERNATIONAL ENVIRONMENTAL LAW 657
~ Catherine Redgwell IV International Investment Law 710

Summary 657 A Introduction 710

B Definition of Investment 711
I Introduction: What is International Environmental Law? 657
C Bilateral Investment Treaties 712
II Defining 'The Environment' 659
D Is there a Need for a Multilateral Investment Agreement? 714
III The Development of International Environmental Law 659
E Investment Insurance Schemes at the National Level 714
IV Key Environmental Actors 662
F The Multilateral Investment Guarantee Agency (MIGA) 714
V Sources of International Environmental Law 663 G Investment Dispute Settlement Mechanisms 716
A Customary International Law 664 V Regional Economic Integration Arrangements 717
B TreatyLaw 664
VI Concluding Remarks 717
VI Enforcement of International Environmental Law 665
References 718
VII Substantive International Environmental Law 667
Further Reading 720
A Protection of the Marine Environment 667
B Protection of the Atmosphere 670 ~'hNTERNATIONAL CRIMINAL LAW 721
C Nuclear Risks 674 L/ Antonio Cassese
D Other Hazardous Substances and Activities 674 Summary 721
xxiv CONTENTS CONTENTS xxv

Introduction: The Notion of International Criminal Law 721 C The Reach of Human Rights Duties within States: Non-State
II General Features of International Criminal Law (Private) Actors 776
722
D The Progressive Realization of Civil and Political Rights 777
A Recent Origins 722
E The State's Duty to Promote and Transform: Cultural Obstacles 780
B The Relationship With International Human Rights and National
Criminal Law 723 IV Conclusion: Perspectives and Voices 784
C The Relationship With Public International Law 724 References 786
III The Establishment of International Criminal Tribunals 726 Further Reading 786
A Post-Cold War 'New World Order' and the Development of Ad @THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 789
Hoc Tribunals (1993-94) 726 Christopher Greenwood
B The International Criminal Court 730
Summary 789
C The Establishment of so-called Internationalized or Mixed Criminal
Courts or Tribunals Introduction 789
734
II When Does the Law of War Apply? 791
IV Individual Criminal Responsibility in International Law 735
III Who Is Entitled to Take Part in Hostilities? 794
V Categories of International Crimes 738
IV What Is a Lawful Target and How May it Be Attacked? 797
A War Crimes 739
B Crimes Against Humanity 740 V What Are the Limitations on the Weapons with Which States May
Conduct Hostilities? 802
C Genocide 742
A Nuclear Weapons 806
D Other International Crimes (Aggression, Torture, Terrorism) 744
VI Conclusion 754 VI What Protection Does the Law Afford the Victims of Hostilities? 809
A Prisoners of War 809
References 755
B The Wounded and Sick 811
Further Reading 756
C Civilians 812

/-\ VII How Much If Any of this Law Applies in Civil War? 814
V,NTERNATIONAL PROTECTION OF HUMAN RIGHTS 757 VIII How Can the Law Be Enforced? 817
Henry J Steiner
References 822
Summary 757
. Further Reading 823
I Introduction 757
Index 825
II The Kinds of Protection Provided by International Organizations 759
A Why Create International Organizations? 759
BIGOs and NGOs 762
C Interaction among Institutions and Systems in Exerting Pressure on
Delinquent States 770
III Characteristics of International Human Rights Relevant to the
Nature of Protection 772
A Human Rights Violations Generally Occur within and Affect only
People Within a Single State 773
B Human Rights Violations Often have a Systemic Character and
Reflect Deep Aspects of a State's Political Structure 774
 EDITOR'S INTRODUCTION xxvii

School of Law at Bristol University, past and present, Pat Capps, Phoebe Okowa and
EDITOR'S INTRODUCTION Chanaka Wickremasinghe. Likewise, I have been greatly helped by my secretary, Mis
Pat Hammond, who was able to maintain a grip on reality when mine had deserted
me. I would also like to express my special thanks to Dr Wei Su and Dr Yusuf Aksar
International law is a rich and varied subject, bearing upon most of the great issues who provided me with invaluable assistance in the process of editing, willingly and at
facing individuals and communities. This work aims to capture something of that short notice. Last, but certainly not least, I should like to thank my wife, Alison, and
breadth and diversity by drawing on the knowledge and experience of a broad range children, Olivia, Isobel, and Amelia, for their endurance during almost a year's worth
of contributors who are intimately engaged in its teaching and practice. It is designed of my near total immersion in the editorial role.
to present the essential elements of the international legal system in a clear and Malcolm D Evans
accessible fashion, but seeks to go further, addressing a number of key questions Easter 2003.
which challenge many of the assumptions upon which the international legal system
is founded. It also seeks to provide a succinct introduction to a range of topics that are The substance of the chapters was laid to rest well before the outbreak of hostilities
subject to increasingly detailed international regulation. against Iraq in March 2003 and it has not been possible to take account of that conflict
The work opens with a series of shorter contributions offering personal reflections and its consequences in this volume. It is to be hoped that a need to produce future
upon the role and function of international law by some its leading exponents and editions of this work will provide occasions on which to do so.
from a variety of perspectives. Parts I-VI then consider the key building blocks of the
subject whilst Part VII provides a series of introductory overviews of particular areas
of contemporary interest. The structure, coverage, and level of the book are intended
to reflect the requirements of undergraduate courses in public international law,
although it will also be of use on general courses at the masters levels as well as being
of interests to academics and practitioners.
Although structured to form a coherent presentation of international law, each
chapter can be read as a self-contained unit, balancing exposition with argument and
reflecting the distinct perspective of its author(s). No attempt has been made to
harmonize the views expressed or to produce a single 'voice'. Even if this had been
possible, it would have been undesirable. As any teacher-as any lawyer-knows,
opinions are best formed through exposure to competing argument. The chapters in
this volume combine to address international law from a variety of perspectives:
rather than one voice there is a range of voices and a range of opinions. It is to be
hoped that this will be a source of stimulation, since the work as a whole aims to be
more than just a compendium of knowledge. It aims to be a resource of value to all
those interested in probing and testing the international legal enterprise.
On a personal note, I am of course greatly indebted to all those who so readily
agreed to contribute chapters to this work. I am even more indebted to them for the
manner in which they fulfilled their tasks, both in terms of substance and of time. The
pressures of production have borne heavily on all involved and I cannot sufficiently
express my gratitude to those at the Oxford University Press for their role in nurturing
this project through to completion. Indeed, its origins lie in a suggestion made to me
by Michaela Coulthard, and I am immensely grateful to her for her support and
encouragement in getting the project onto and off the starting blocks. That baton was
then assumed by Christina White who guided me towards the last lap. Finally, Claire
Brewer and Helen Adams have coaxed and carried me towards the finishing line.
Many others have supported me on the way, and particularly my colleagues in the

NOTES ON CONTRIBUTORS
Ademola Abass, LLB, LLM, PhD, Barrister and Solicitor, is a Lecturer in Public Inter-
national Law, Law of Armed Conflict and Use of Force, Collective Security Law, and
Law of Trusts at the University of the West of England, Bristol. He recently completed
a PhD degree at the University of Nottingham. He has authored and co-authored
several articles. His specialization includes United Nations Law and International
Economic Law.
Dapo Akande is a Lecturer in Law at the University of Durham. He is a member of the
International Law Association's Committee on Accountability of International
Organizations and has been a Visiting Professor at the University of Miami School of
Law. He has published articles on international organizations and international tri-
bunals in leading journals such as the British Yearbook of International Law, the
European Journal of International Law and the International and Comparative Law
Quarterly. He has also advised and assisted counsel in a wide variety of international
law cases before national and international courts.
Ian Brownlie, QC, CBE, FBA, Member of the English Bar. Ian Brownlie is a member
of Blackstone Chambers, Temple. He practises in international tribunals, including
the International Court, the European Court of Human Rights, and courts of arbitra-
tion. He is a member of International Law Commission (1997), and of the Institut de
Droit International (1977).
Antonio Cassese is Professor of International Law at the University of Florence. He is a
member of the Institut de droit international, and has been awarded Law Doctorates
honoris causa by the Universities of Rotterdam, Paris X and Geneva. In 2002 he was
awarded the Annual Prize of the Academie Universelle des Cultures (Paris) for 'the
exceptional importance of his contribution to the promotion of human rights in
Europe and in the world'.
James Crawford, SC, FBA is Whewell Professor ofInternational Law and Chairman of
the Faculty Board of Law, University of Cambridge. He was a member of the Inter-
national Law Commission from 1992-2001, and in that capacity directed the ILC
work on a Draft Statute for an International Criminal Court (1994) and as its Special
Rapporteur on State Responsibility (1997-2001). He is a member of Matrix Cham-
bers and has an extensive practice before international courts and tribunals.
Eileen Denza was formerly Assistant Lecturer in Law, Bristol University, a Legal
Adviser to the Foreign and Commonwealth Office and Counsel to the EC Committee
of the House of Lords. Now recycled as Visiting Professor of Law at University College
London, she is author of Diplomatic Law (2nd edn 1998) and of The Intergovernmental
Pillars of the European Union (2002).
NOTES ON CONTRIBUTORS xxix
Malcolm D Evans, MA, DPhil, is Professor of Public International Law at the Uni-
versity of Bristol. His areas of special interest are the law of the sea and the inter-
national protection of human rights, and in particular the freedom of religion and the
prevention of torture. His principal publications include 'Religion and International
Law in Europe' (1997) arid (with Professor Rod Morgan) 'Preventing Torture (1998)
andCombating.Torture in Europe (2001).
Professor Malgosia Fitzmaurice holds a chair of public international law at the
Department of Law, Queen Mary, University of London. Her main interests include
international environmental law and the law of treaties, and she has published widely
on both subjects. She is the secretary of the International Water Resources Committee
of the International Law Association. In 2001 she delivered The Hague Academy of
International Law lecture on the topic of international environmental law.
Hazel Fox QC (Lady), Editor of the International and Comparative Law Quarterly,
formerly Director of the British Institute of International and Comparative Law,
member of the Institut de droit international. She was formerly Fellow and Law Tutor
and now is a Hon Fellow of Somerville College, University of Oxford, Bencher of
Lincoln's and in practice 4-5 Grays Inn Square, Grays Inn, WCIR 5JP.
Christine Gray, MA, PhD, is Reader in International Law at the University of
Cambridge. She is author of International Law and the Use of Force and of Judicial
Remedies in International Law as well as of many articles on the use of force.
Christopher Greenwood, CMG, QC, is Professor of International Law at the London
School of Economics and a member of Essex Court Chambers practicing in the area
of public international law. He is the author of numerous articles on the laws of war
and other aspects of international law. Court appearances include the Lockerbie,
Nuclear Weapons and Kosovo cases in the International Court ofJustice, the Bankovic
case in the European Court of Human Rights, and the Pinochet case in the House of
Lords.
HE Judge Rosalyn Higgins, DBE, QC. Judge of the International Court of Justice
(1995- ). Bencher of the Inner Temple. Formerly Professor of International Law at
the London School of Economics 1981-1995; and Member of the Human Rights
Committee under the International Covenant on Civil and Political Rights, 1985-1995.
Martti Koskenniemi, Professor of International Law, University of Helsinki, Global
Professor of Law, New York University School of Law; Member, International
Law Commission. Principal publications: From Apology to Utopia: The Structure of
International Legal Argument (Finnish Lawyers' Publishing Company, Helsinki, 1989),
The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960
(Cambridge University Press, 2002).
Gerhard Loibl, Dr iur, LLB, Chair of International and European Law at the Diplo-
matic Academy of Vienna and Associate Professor at the University of Vienna. He has
xxx NOTES ON CONTRIBUTORS
published widely on subjects of public international and European law, in particular
in the area of international environmental and economic law, has participated in
numerous international negotiations on behalf of Austria, and is Chairman of the
Water Resources Committee of the International Law Association.
Vaughan Lowe is Chichele Professor of Public International Law and a Fellow of All
Souls College, Oxford University. He practices as a Barrister, from Essex Court
Chambers, London.
Robert McCorquodale is Professor of International Law and Human Rights at
Nottingham University. He is co-author of one of the leading texts in international
law, Cases and Materials on International Law (4th edn, 2003, OUP) and is on the
editorial board of a number of respected academic journals. He also edited
Self-Determination in International Law (Ashgate, 2000) and Human Rights (Ashgate,
2003).
Campbell McLachlan, Professor of Law, Victoria University of Wellington Law School,
New Zealand; LLB(Hons); PhD(Lond); Diploma cum laude (Hague Academy of
International Law); Barrister (New Zealand). 1992-2003: Partner, Herbert Smith
(Solicitors), London, heading Public International Law Group; Chair, International
Bar Association Committee on International Litigation; Co-Chair International Law
Association Study Group on Practice and Procedure of International Courts and
Tribunals.
John G Merrills, BCL, MA, is Professor of International Law at the University of
Sheffield and currently Dean of the Faculty of Law. He is the author of International
Dispute Settlement, Human Rights in Europe, Judge Sir Gerald Fitzmaurice and the
Discipline of International Law and several other books, as well as numerous articles in
law reviews.
Lord Millett is a Lord of Appeal in Ordinary. As such he is a member of the Appellate
Committee of the House of Lords, which is the final Court of Appeal for the United
Kingdom and sits on the Judicial Committee of the Privy Council, which is the final
Court of Appeal for a number of Commonwealth jurisdictions, including New
Zealand, Mauritius, and the Caribbean territories.
Stephen C Neff is a Senior Lecturer in International Law at the University of Edin-
burgh, specializing in the history of international law. His publications include
Friends But No Allies: Economic Liberalism and the Law of Nations (1990) .and The
Rights and Duties of Neutrals: A General History (2000).
Phoebe N Okowa is Senior Lecturer in Law at Queen Mary, University of London.
She is the co-editor of Foundations of Public International Law (OUP) and the author
of State Responsibility for Transboundary Air Pollution in International Law (OUP
2000).
Simon Olleson, BA(Hons) (Cantab); LLM (NYU); Barrister. Simon Olleson is a
NOTES ON CONTRIBUTORS xxxi
graduate research student at Trinity College, Cambridge, and a Research Associate of
the Lauterpacht Research Centre for International Law, University of Cambridge.
Catherine Redgwell, BA(Hons), LLB, MSc. Catherine is a Reader in Public Inter-
national Law at the University of Oxford, and Yamani Fellow and Senior Tutor in Law
at St Peter's College. She has published extensively in the international law field
within the areas of environmental law, energy law and treaty law.
Dr lain Scobbie LLB(Hons) (Edin), LLB(Cantab), GDIL(ANU), PhD(Cantab), Reader
in International Law, University of Glasgow. He is the author of numerous articles
which examine diverse matters such as the jurisprudence and practice of the Inter-
national Court and various aspects of the law of armed conflict, as well as the theory
of international law.
Dinah Shelton is Professor of International Law and director of the doctoral program
in international and comparative human rights law at the University of Notre Dame
Law SchooL She is the author of Remedies in International Human Rights Law as well
as several other books and numerous articles on international law.
Henry J Steiner, Jeremiah Smith, Jr Professor of Law at Harvard University, is founder
and director of the Harvard Law School Human Rights Program, and member and
former chair of the University Committee on Human Rights Studies. He has pub-
lished articles on a broad range of human rights topics and is co-author of a leading
coursebook, International Human Rights in Context (2d edn 2000, OUP). Steiner has
lectured on human rights subjects in over twenty countries.
Hugh Thirlway is at present Principal Legal Secretary of the International Court of
Justice, a post he previously held but resigned in 1994,when he was appointed Profes-
sor of International Law at the Graduate Institute of International Studies, Geneva.
On retiring from academic teaching, he was invited to resume his former post with
the Court. He is the author of two books and numerous articles on various aspects of
international law.
Colin Warbrick, MA, LLB, LLM is Professor of Law in the Law Department, Durham
University. His ~nterests are in International Law generally, European Human Rights
and International Criminal Law. He is the co-author (with David Harris and Michael
O'Boyle) of The Law of the European Convention on Human Rights and the co-editor
(with Vaughan Lowe) of The United Nations and the Principles of International Law.
Nigel White is Professor of International Organizations and currently Head of the
Law School at the University of Nottingham. He is author of The United Nations
System: Toward International Justice; Keeping the Peace: The United Nations and the
Maintenance of International Peace and Security; and The Law of International Organ-
isations. He is Co-Editor of the Journal of Conflict and Security Law.
Chan aka Wickremasinghe studied law as both an undergraduate and a post-graduate
at the LSE, and qualified as a solicitor. He is currently a Legal Researcher at the Foreign
xxxii NOTES ON CONTRIBUTORS

and Commonwealth Office. Before this was a lecturer in law at Bristol University,
and prior to that Senior Research Officer at the British Institute of International and ABBREVIATIONS
Comparative Law.
Michael Wood, MA, LLB. Legal Adviser to the Foreign and Commonwealth Office. He
is co-author of The Legal Status of Berlin and has published various articles on inter-
national law topics. AALCC African Asian Legal Consultative Committee
AFP Australian Federal Police
Ralph Zacklin, LLB, LLM, Dr des Sciences Politiques is Assistant Secretary-General for AIA Advanced Informed Agreement
Legal Affairs of the United Nations. He has published a number of books and articles AJIL American Journal of International Law
on issues of public international law and the law of international institutions. He has ASCOBANS Agreement on the Conservation of Small Cetaceans of
also lectured at the Hague Academy of International Law and several universities and the Baltic and North Seas
institutes in Europe, Africa, and the Americas. ASEAN Association of Southeast Asian Nations
ATCA Alien Tort Claim Act (USA)
AU African Union
BITs Bilateral Investment Treaties
BYIL British Yearbook of International Law
CBD Conservation of Biological Diversity
CCAMLR Convention on the Conservation of Antarctic Marine
Living Resources
CEDAW Convention on the Elimination of All Forms of
Discrimination Against Women
CERD International Convention on the Elimination of All
Forms of Racial Discrimination
CESCR Committee on Economic, Social and Cultural Rights
CFC Convention on Fisheries and Conservation of the
Living Resources of the High Seas
CFCs chlorofluorocarbons
CIS Confederation of Independent States
CITES Convention on International Trade in Endangered
Species
CLC . Convention on Civil Liability for Oil Pollution
Damage
CMLR Common Market Law Review
COP Conference of the Parties
CRC Convention on the Rights of the Child
CSC Continental Shelf Convention
CSCE Conference on Security and Cooperation in Europe
DEA Drugs Enforcement Agency
DRC Democratic Republic of the Congo
DSB Dispute Settlement Body
DSU Dispute Settlement Understanding
EAC East African Community
xxxiv ABBREVIATIONS ABBREVIATIONS xxxv

European Bank for Reconstruction and Development ICESCR International Committee on Economic, Social and
EBRD·
(United Nations) Economic Commission for Europe Cultural Rights
ECE
European Convention on Human Rights ICJ International Court of Justice
ECHR
European Court of Justice ICLQ International and Comparative Law Quarterly
ECJ
Economic Community of West African States ICOMOS International Council on Monuments and Sites
ECOMOG
Monitoring Group ICBP International Council for Bird Preservation
Economic and Social Council ICRC International Committee of the Red Cross
ECOSOC
Economic Community of West African States ICSID International Centre for the Settlement of Investment
ECOWAS
European Convention on State Immunity Disputes
ECSI
European Court of Human Rights ICTR International Criminal Tribunal for Rwanda
ECtHR
European Economic Community ICTY International Criminal Tribunal for the Former
EEC
Exclusive Economic Zone Yugoslavia
EEZ
Exclusive Fishing Zone IDA International Development Organization
EFZ
European Human Rights Review IFAD International Fund for Agricultural Development
EHRR
European Journal of International Law IFC International Finance Corporation
EJIL
Environmental Modification Treaty IGAD Intergovernmental Authority on Drought and
ENMOD
European Company for the Financing of Railroad Development
EUROFIMA
Rolling Stock IGO Inter-Governmental Organization
Food and Agriculture Organization IHRR International Human Rights Review
FAO
Financial Action Task Force ILA International Law Association
FATF
Framework Convention on Climate Change ILC International Law Commission
FCCC
Friendship, Commerce and Navigation (Treaties) ILM International Legal Materials
FCN
Foreign and Commonwealth Office ILO International Labour Organization
FCO
female genital mutilation ILR International Law Reports
FGM
Former Republic of Yugoslavia IMF International Monetary Fund
FRY
Foreign Sovereign Immunities Act IMO International Maritime Organization
FSIA
General Assembly INGOs International Non-Governmental Organizations
GA
General Agreements to Borrow IPCC Intergovernmental Panel on Climate Change
GAB
General Agreement on Trade in Services Iran-USCTR Iran-US Claims Tribunal Reports
GATS
General Agreement on Tariffs and Trade ISA International Seabed Authority
GATT
Global Environmental Facility ITC International Tin Council
GEF
High Commissioner for Human Rights ITLOS International Tribunal for the Law of the Sea
HCHR
Heavily Indebted Poor Countries ITO International Trade Organization
HIPC
Human Rights Commission ITU International Telecommunications Union
HRC
Human Rights Law Journal IUCN International Union for the Conservation of Nature
HRLJ
High Seas Convention IWRB International Waterfowl and Wetlands Research Bureau
HSC
Inter-American Commission on Human Rights LMOs Living Modified Organisms
IACHR
International Atomic Energy Authority LNTS League of Nations Treaty Series
IAEA
International Bank for Reconstruction and LOSC Law of the Sea Convention
IBRD
Development (World Bank) LRTAP Long-Range Transboundary Air Pollution
International Civil Aviation Organization MAl Multilateral Agreement on Investment
ICAO
International Criminal Court MARPOL International-Convention for the Prevention of
ICC
International Covenant on Civil and Political Rights Pollution from Ships
ICCPR
xxxvi ABBREVIATIONS ABBREVIATIONS xxxvii

Multilateral Investment Guarantee Agency Fishstocks and Highly Migratory Species (Straddling
MIGA
Convention on the Conservation of Migratory Species Stocks Convention)
MSC
of Wild Animals SWAPO South West Africa Peoples' Organization
New Arrangements to Borrow TAC Total allowable catch
NAB
North Atlantic Fisheries Organization TPRM Trade Policy Review Mechanism
NAFO
North American ~ree Trade Agreement TRAFFIC Trade Records Analysis of Flora and Fauna in
NAFTA
North Atlantic Treaty Organization Commerce
NATO
Non-Governmental Organizations TRIMs Trade-Related Investment Measures
NGOs
Netherlands Yearbook of International Law TRIPS Agreement on Trade-Related Aspects of Intellectual
NYBIL
Organization of Arab Petroleum Exporting Countries Property Rights
OAPEC
Organization of American States TSC Territorial Sea and Contiguous Zone Convention
OAS
Organization of American States Treaty Series UAE United Arab Emirates
OASTS
Organization of African Unity UDHR Unilateral Declaration on Human Rights
OAU
Ocean Development and International Law UEMO Union Economique de Monetaire Ouest-Africaine
ODIL
Organization for Economic Cooperation and UKMIL United Kingdom Materials on International Law
OECD
Development UKTS United Kingdom Treaty Series
Organization of East Caribbean States UNAMIR United Nations Assistance Mission for Rwanda
OECS
Organization for European Economic Cooperation UNAMSIL United Nations Mission in Sierra Leone
OEEC
United Nations Operation in the Congo UNAT United Nations Administrative Tribunal
ONUC
United Nations Observer Group in Central America UNCAT United Nations Convention Against Torture and Other
ONUCA
Organization of Petroleum Exporting Countries Cruel, Inhuman or Degrading Treatment or Punishment
OPEC
Organization for Security and Cooperation in Europe UNCC United Nations Compensation Commission
OSCE
Convention for the Protection of the Marine UNCITRAL United Nations Commission on International Trade
OSPAR
Environment of the North-East Atlantic Law
Permanent Court of International Justice UNCLOS United Nations Conference on the Law of the Sea
PCU
Popular Front for the Liberation of Palestine UNCTAD United Nations Conference on Trade and Development
PFLP
Palestine Liberation Organization UNDP United Nations Development Programme
PLO
Persistent Organic Pollutants UNEF United Nations Emergency Force
POPs
Prisoner of War UNEP United Nations Environment Programme
POW
Recueil des cours de l'Academie de droit international UNESCO United Nations Educational, Scientific and Cultural
Recueil des Cours
Regional Fisheries Organizations Organization
RFOs
Revue General de Droit International Public UNGA United Nations General Assembly
RGDIP
Reports of International Arbitral Awards UNICEF United Nations International Children's Economic
.RIAA
South African Development Community Foundation
SADC
Sea-Bed Disputes Chamber UNIDO United Nations Industrial Development Organization
SBDC
Security Council UNHCR United Nations High Commissioner for Refugees
SC
Special Drawing Rights UNITA Uniao Nacional para a Independencia Total de Angola
SDR
State Immunity Act UNMIK United Nations Mission in Kosovo
SIA
Sanitary and Phytosanitary Measures UNOSOM United Nations Operation in Somalia
SPS
Straddling Stocks Agreement UNPROFOR United Nations Protection Force
SSA
Agreement for the Implementation of the Provisions of UNTAET United Nations Transitional Administration in East
SSC
the UN Convention on the Law of the Sea relating Timor
to the Conservation and Management of Straddling UNTS United Nations Treaty Series
xxxviii ABBREVIATIONS

UNYB United Nations Yearbook

UPU Universal Postal Union TABLE OF INTERNATIONAL
United States Foreign Sovereign Immunities Act
USFSlA
Vienna Convention on Consular Relations
INSTRUMENTS
VCCR
VCDR Vienna Convention on Diplomatic Relations
African Charter on Human and Peoples Rights Environment of the North-East Atlantic
VCLT Vienna Convention on the Law of Treaties ... 160,161-2 ... 665
WHC World Heritage Convention Agreement Establishing the Common Fund for Convention on Access to Information, Public
WIPO World Intellectual Property Organization Commodities ... 710 Participation in Environmental Decision-
World Meteorological Organization Agreement on Sanitary and Phytosanitary Making, and Access to Justice in
WMO Measures (SPS) Environmental Matters. .. 660
WTO World Trade Organization Convention on Biological Diversity. .. 538, 658,
Art.3 ... 284
WWF World Wildlife Fund . 659,660,661,662,663,665,666,682-3
Agreement on Straddling Stocks and Highly
YBILC Yearbook of the International Law Commission Migratory Species. .. 653 Art.22 ... 166
YIHL Yearbook of International Humanitarian Law Agreement on Trade Related Intellectual Property Biosafety Protocol ... 164
Rights (TRIPS) . .. 704-5 Cartagena Protocol on Living Modified
American Convention on Human Rights ... Organisms ... 666,676-7
160,162,169,310 Convention on Civil Liability for Damage
ArtA(4) ... 193 Resulting from Activities Dangerous for the
Art.27 ... 160 Environment. .. 659
Antarctic Treaty (1959) ... 169 Convention on Civil Liability for Oil Pollution
Damage ... 669
Protocol on Environmental Protection ...
658,667 Convention on Conventional Weapons 1981 ...
805
Arab Convention for the Suppression of
Terrorism. .. 751 Convention on Early Notification of a Nuclear
Accident or Radiological Emergency ...
674
Barcelona Convention for the Protection of the
Convention on Environmental Assessment in a
Mediterranean Sea against Pollution ...
Transboundary Context. .. 660
668
Convention on Fishing and Conservation of the
Basel Convention on the Transboundary
Living Resources of the High Seas (CFC)
Movement of Hazardous Wastes and their
... 652
Disposal ... 663,675
Convention on International Trade in
Biological Diversity Convention see Convention
Endangered Species ... 164,680-1
on Biological Diversity
Convention on Long-Range Transboundary Air
Bonn Convention on Migratory Species of Wild
Pollution ... 659,660,664-5,671
Animals ... 169,317,681-2
Convention on Nuclear Safety ... 674
Brussels Convention for the Unification of
Certain Rules concerning the Immunities of Convention on Special Missions. .. 388,
Government Vessels ... 361 402-3
Art.2 ... 402
Chemical Weapons Convention 1993 ... 805 Art.3 ... 402
Cobden-Chevalier Treaty (1860) ... 45 Art.l2 ... 402
Convention against Torture ... 317,364,419 Art.20(1)(e) ... 402
Art.l(1) ... 749 Art.21 ... 403
Convention Concerning Employment of Women ArtAI ... 402
During the Night (1919) ... 187 ArtA7 ... 402
Art.I-Art.3 187 Convention on the Conservation of Antarctic
Convention Concerning the Protection of the Marine Living Resources ... 661,684
World Cultural and Natural Heritage ... Convention on the Conservation of Migratory
659,679-80 Species of Wild Animals ... 169,317,
Convention for the Protection of the 681-2
 TABLE OF INTERNATIONAL INSTRUMENTS
TABLE OF INTERNATIONAL INSTRUMENTS xli
xl
Art.6(20) ... 405 General Act of the Brussels Conference. .. 43
Convention on the Establishment of an
Art.62(3) ... 651 Art.6(22) ... 405 General Agreement on Tariffs and Trade (GATT)
International Fund for Compensation for
Art.29 ... 290 ... 164,700,701-3
Oil Pollution Damage. .. 669 Art.63 ... 651,653
Convention on the Law of the Sea. .. 26, 63, Convention on the Protection of the Marine General Agreement on Trade in Services (GATS)
Art.63(4) .,. 645
164,284,533,538,540,543,625-54,659, Environment of the Baltic Sea (Helsinki ... 704
Art.64 ... 651,653
662,667-8 1992) . " 182 Geneva Convention on the Continental Shelf
Art.65 ... 651 (1958) ... 123,126,135
Art.2(2) ... 630 Convention on the Protection of the Marine
Art.66 ... 651 Environment of the North-east Atlantic Art.6 ... 135
Art.3 ... 630 Art.67 ... 651 ... 668 Geneva Conventions on humanitarian law ...
Art.5 .,. 626 Art69 .. , 651 Convention on the Rights of the Child. .. 317 122,160-1,163,317-18,728,790,792-802,
Art.6 ... 648 Art.70 ... 651 806,809-21
Art.45 ... 319
Art.7 .. , 627 Art.73 ... 646 Additional Protocol I ... 790,795,808,811,
Convention on the Safety of UN and Associated
Art.7(1) ... 627 Art.74 ... 140 Personnel. .. 792 817,820
Art.7(4) .. , 627 Art76 ... 643 Convention on the Suppression and Punishment Art.1(4) ... 793,796
Art.7(5) ... 627 Art.76(8) ... 643 of the Crime of Apartheid. .. 163 Art.5 ... 820
Art.8(2) ... 630 Art.77(4) ... 642 Convention on Wetlands of International Art.44 ... 795
Art.lO ... 627 Art.82 ... 643 Importance (Ramsar Convention) ... 661, Art.44(3) ... 795-6
Art10(6) ... 628 662,678-9 Art.51(2) ... 797
Art.83 ... 140
Art.14 ... 626 Convention Relating to Intervention on the High Art.51(5){a) '" 804
Art.87 ... 637
Seas in Cases of Oil Pollution Casualties
Art.15 ... 648 Art.94(1) .. , 638 Art.52(2) ... 797-8
... 670
Art.18 ... 633 Art.99 ... 641 Art.52(3) ... 798
Covenant of the League of Nations
Art.19(l) ... 633 Art.l01(l) .. , 639 Art.53 ... 801
Art.14 ... 560
Art.19(2) ... 633,634,635 Art.107 ... 638 Art.55 ... 801
Art.21 .. , 634 Art.l08 ... 641 Declaration of Paris (1856) ... 44 Art.56 ... 801-2
Art21(2) ... 634 Art.l09 .. , 640 Declaration of St Petersburg (1868) ... 44,803 Art.57 ... 800
Art24(1) ... 634 Art.IIO ... 641 Art.58 ... 801
Art.25(3) ... 634 Art1l0(l) ... 638 Environmental Modification Treaty. .. 805 Art.90 ... 821
Art.27 ... 634 ArtllO(5) ... 638 European Convention on Human Rights. " 99, Additional Protocol II ... 750,815
Art27(l) ... 631 Art.lIl . .. 639 160,194,310,439-40,462,772,790 Art.1(l) ... 815
Art.27(2) ... 631 Art.1l6(b) ... 651 Art.10(1)-(2) ... 98 Art.l(2) ... 815
Art.28 ... 632 Art.1l8 ... 651 Art.12 ... 161 Art.2 ... 792
Art.30 ... 632 Art.1l9 ... 651 Art.l5 ... 160 Art.3 ... 814-15
Art.33 .. , 632 Art.12l(3) ... 626 Art.38 ... 534 Art.3(2) ... 815
Art.35(c) ... 636 Art.192 .. , 658 Art.64 ... 194 First ... 811
Art.36 ... 636 Art.31I ... 166 First Additional Protocol. .. 432 Fourth ... 811,812-13
Art.38(l) ... 636 Convention on the Prevention and punishment European Convention on State Immunity ... Art.33(l) ... 750
Art.39 ... 637 of Crimes against Internationally Protected 361,362,368,370 Gas Protocol 1925 . " 805, 806
Art.42(l) ... 637 Persons. .. 26, 388 Art.4 ... 367 POW Convention. .. 809-11
Art.45 ... 636 Convention on the Prevention and Punishment Art.ll ... 370 Art.4 . .. 794, 795
of the Crime of Genocide (1948) ... 91,
Art.47 ... 629 European Convention on the Recognition of the Art.118 ... 810
163,191-2,447,742-4
Art.52 ... 637 Legal Personality of International NGOs Second ... 811
Art.5 ... 420 ... 319
Art.53 ... 637 Convention on the Prevention of Pollution from Third ... 791,819
European Social Charter ... 162
Art.56 ... 645 Ships. .. 665, 668, 669 Geneva Conventions on the Law of the Sea ...
European Union Treaty. .. 423, 434 624
Art.56(3) ... 645 Convention on the Privileges and Immunities of
the Specialized Agencies. .. 287, 388 Art.6 ... 310
Art.57 ... 645
Convention on the Privileges and Immunities of Art.234 . .. 313 Hague Convention (1899) ... 535,554,790,
Art.59 ... 645
the United Nations (1946) ... 287,388, 804
Art.61(l) .. , 651
405,582 Framework Convention on Climate Change ... Hague Convention (1907) ... 536,790,794,
Art.61(2) ... 651
660,661,662,663,665,666,672-3 804
Art.61(3) ... 651 Art2(2) . .. 288
Art.5(18)(a) .. , 405 Art.3{l) ... 665 Hague Conventions (1907) ... 813-14
Art.62(1) .. , 651
Art.5(19) ... 405 Kyoto Protocol. .. 666, 673 Helsinki Final Act (1975) . .. 175
Art.62(2) . ~. 651
xlii TABLE OF INTERNATIONAL INSTRUMENTS TABLE OF INTERNATIONAL INSTRUMENTS xliii

Inter-American Convention on Human Rights Montevideo Convention on the Rights and Art.38(l)(d) ... 132, 133,320 Art.2(4) ... 64,78,99,507,520,589,590,
see American Convention on Human Rights Duties of States Art.38(2) . '. 542, 569 591-7,599,618,746
International Cocoa Agreement. " 709 Art.l . .. 220-1 Art.38(5) . " 569 Art.2(6) ... 152,591
International Coffee Agreement. .. 708, 709 Montreal Convention for the Suppression of ArtAl ... 574,575 Art.2(7) ... 97,294,305,521,596,607
International Convention against the Taking of Unlawful Acts against the Safety of Civil ArtA( 1) . .. 251
ArtA6 ... 565
Hostages (1979) ... 344 Aviation
Art.59 ... 120,579,580,581 ArtA(2) ... 251
International Convention for the Prevention of Art.1 . .. 343-4
Art.60 . .. 579, 580 Art.7 ... 291
Pollution of the Sea by Oil . " 660
Art.61 ... 579 Art.7(l) ... 291
International Convention for the Regulation of Nordic Environmental Protection Convention
Whaling. .. 684 Art.62 ... 577,578 Art.7(2) ... 291
Art.3 ... 667
International Convention for the Suppression of Art.63 ... 577 Art.9 ... 293
North American Free Trade Agreement (NAFTA)
the Financing of Terrorism . '. 750-1 .'. 165,461 Art.65 ... 541,583 Art.1O ... 283,294
Internatiomil Convention on Elimination of Art. 104 ... 165 Art.68 ... 584 Art.ll ... 283
All Forms of Racial Discrimination Art.2005A . .. 165 Art.12 ... 283,294,550
Art.75 ... 309
(1965) Art.13 ... 283
Statute of the International Criminal Court ...
Art.20 ... 193 Oil Pollution Preparedness and Response Art. 14 ... 283,549
363,407-8,731
International Covenant on Civil and Political Convention. .. 670 Art.18 ... 294
Art.5(1) ... 731
Rights (ICCPR) ... 160, 161, 195,215,294, Oslo Dumping Convention. .. 668
Art.5(2) ... 732 Art.20 ... 293
767,772,779,783
Ottawa Convention (1998) ... 790,805 Art.23 ... 294
Art.1 ... 315 Art.6 ... 744
Art.9 ... 739 Art.24 ... 294,607,611
Art.2 ... 780 Pact of Paris (1928) ... 28,50-1
Art.12(2) ... 732 Art.25 ... 97,283,294,518,525
ArtA ... 160 Paris Convention for the Prevention of Marine
Art.13 ... 733 Art.27 ... 607
Art.12 ... 432 Pollution from Land-Based Sources ...
Art.27(3) ... 137
Art.18(3) ... 161 668 Art.15 ... 733
Art.33 ... 530
Art.28 ... 767 Paris Convention on Third Party Liability in the Art.16 ... 733
Field of Nuclear Energy ... 674 Art.33(l) ... 549
ArtAO ... 767,785 Art.17 ... 732
Peace of Utrecht ... 48 Art.34 ... 549
ArtAO(l) ... 779 Art.25 ... 736
Peace of Westphalia (1648) ... 38,48,90, 138, Art.36 (1 ) . .. 549
Optional Protocol ... 768 Art.27(1) ... 737-8
210,359 Art.36(3) ... 551
International Covenant on Economic, Social and Art.27(2)(b) ... 736
Cultural Rights (ICESCR) ... 162,215 Porter Convention ... 47 Art.39 . .. 523, 607, 608
Art.28 ... 737
Art.1 ... 315 ArtAO . .. 607, 608
Statute of the Permanent International Court of
Art.2 ... 779 Ramsar Convention on Wetlands of International ArtAl ... 507,518,523,524,607,608,615,
Justice. .. 136, 569
Importance ... 661,662,678-9 763
International Labour Organization Constitution Art.36(2) ... 561
Rome Convention on the Suppression of ArtA2 . .. 99,607,608,763
Art.19(6) ... 284 Art.38 ... 138
Unlawful Acts against the Safety of ArtA3 . .. 608, 763
International Labour Organization Convention Maritime Navigation. .. 639 Art.38(l)(c) ... 213
No 29 ... 156 ArtA8 ... 97
Rotterdam Convention on Prior Informed Stockholm Convention on Conciliation and
International Labour Organization Declaration Consent (1988) ... 169,663,676 Art.51 ... 22,97,99,589,599-606,618
Arbitration. .. 540
of Fundamental Rights of Workers ... 162 Art.52(2) ... 547,549
Stockholm Convention on Persistent Organic
International Tin Agreement. .. 709 Statute of the International Court of Justice ... Pollutants ... 676 Art.53 ... 518,614,615,616,617
International Tropical Timber Agreement ... 146,147,541,566 Art.53(1) ... 507
661, 709 Art.17 ... 562 Art.55 ... 660
UNESCO Constitution
Art.24 ... 562 ArtA(4) ... 284 Art.57 ... 292
Jay Treaty (1794) ... 45,539 Art.62 ... 294
Art.35 ... 567 Art.8 ... 284
Art.35(l)-(2) ... 567 Art.63 ... 292
Law of the Sea Convention see Convention on the United Nations Charter. .. 6, 22, 28, 52-3,
Art.36 ... 569,57l 54,152,162,163,169,214,252,309,449, Art.68 ... 764
Law of the Sea
Art.36(2) ... 541,569,570 462,506,515,554,566,590-1,727,760, Art.77 ... 295
London (Dumping) Convention. .. 659, 660,
Art.36(6) ... 541, 57l, 572 762-3 Art.92 ... 560
668
Art.38 ... 62,119,120-34,136,143,314,560, Art.1 ... 89,291,548,590,660 Art.93(2) . '. 567
Manila Declaration. .. 541 566,567,648 Art.2 ... 14 Art.94(l) ... 567,568
Manila Declaration on the Peaceful Settlement of Art.38(1) ... 542 Art.2(l) ... 232 Art.94(2) . '. 568
International Disputes. .. 530-1 Art.38(l)(c) ... 73,491 Art.2(3) ... 530,549,592 Art.96(l) ... 582
xliv TABLE OF INTERNATIONAL INSTRUMENTS TABLE OF INTERNATIONAL INSTRUMENTS xlv

Art.96(2) ... 582-3 Art.37(3) ...

396 Art.34 ... 122, 184 Art.58 ... 182
Art.98 . .. 550, 551 Art.38(1) ...
396 Art.35 ... 184 Art.59 ... 182, 183
Art.99 . .. 550, 551 Art.39(2) ...
396,399 Art.36 ... 184 Art.60 ... 196,197,451,490,509-10
Art.lOO : .. 295 ArtAI (1) . ..
394 Art.37 ... 184 Art.61 ... 198
Art.103 ... 164,407,518,524,525 ArtAl(2) ... 395 Art.38 ... 176,184 Art.62 ... 198, 199
Art104 ... 273 ArtAl(3) ... 395 Art.39 ... 181 Art.63 ... 142
Art.105 ... 286 ArtA2 ... 395 ArtAO ... 181 Art.64 ... 137, 151
Universal Declaration of Human Rights ... 169, Vienna Convention on Succession of States in ArtA1 ... 137, 181, 182 Art.69(2) ... 469
662 Respect of Treaties (1978) ... 175-6 ArtA3 ... 176 Art.69(4) ... 180
Vienna Convention on the Law of Treaties (1969) ArtA6 ... 180,417 Art.71 ... 181
Versailles Treaty (1919) ... 50,736 ... 122,123,135,137,150,153,157,161, Art.73 ... 176
ArtA7 ... 178,180
Vienna Convention Against Illicit Traffic in 163,174,175,176,178,182,194,200,451, Art. 746 . .. 454
ArtA8 ... 180
Narcotic Drugs and Psychotropic 538
ArtA9 ... 181 Vienna Convention on the Law of Treaties
Substances ... 641 Art.l .. , 176 between States and International
Vienna Convention for the Protection of the Art.50 ... 181
Art.2(I)(a) ... 176 Organizations (1986) ... 153, 175
Ozone Layer ... 671-2 Art.51 ... 181
Art.2(1)(b) ... 179
Montreal Protocol ... 164,538,666,667,672 Art.52 ... 181 World Health Organization Constitution
Art.2(2) ... 174
Art.2 ... 97 Art.53 ... 146, 150, 153 Art.22 ... 283
Art.2(d) ... 191
Vienna Convention on a Uniform Law for the Art.54 ... 182 World Trade Organization Agreement ... 532,
Sale of Goods ... 15 Art.3(b) ... 176
Art.57 ... 182 700
Vienna Convention on Civil Liability for Nuclear Art.3(c) ... 176
Damage ... 674 Art.4 ... 176
Vienna Convention on Consular Relations ... Art.5 ... 280
388,397-8 Art.7 ... 177,454
Art.5 ... 397 Art.7(1) ... 177
Art36 . " 418,431,432,466 Art.7(2) ... 177
ArtA1 '" 398 Art.8 ... 177,178
ArtA3 ... 398 Art.ll ... 178
Art.73. " 398 Art.12 ... 178
Vienna Convention on Diplomatic Relations ... Art. 14 ... 179
135,388,391-6
Art.14(2) ... 180
Art.2 ... 392
Art.15 ... 179
Art.3 ... 392
Art.18 ... 178
Art.7 ... 392
Art.19 ... 192
Art.9 ... 393
Art.19(c) ... 192, 195
Art.l0 ... 392
Art.22 ... 393 Art.20(4) ... 192
Art.22(2) ... 393 Art.20(5) . .. 192
Art.22(3) ... 373 Art.24( 4) . .. 178
Art.24 ... 394 Art.25 ... 178
Art.27 ... 394 Art.26 ... 122, 183
Art.29 ... 395 Art.27 ... 417
Art.31 '" 395 Art.30 ... 183
Art.31(1) ... 399 Art.31 ... 186,187,189,280
Art.32 ... 396 Art.31(l) ... 186
Art.32(1) ... 396 Art.31(2) ... 186
Art.33(2) . .. 396 Art.31(3) ... 187
Art.33(4) ... 396 Art.31(3)(b) . " 281
Art.37(1) ... 395 Art.32 ... 188,280
Art.37(2) ... 396 Art.33 ... 190

TABLE OF INTERNATIONAL CASES
Aegean Sea Continental Shelf, Judgment, Ie}
Reports 1978 p3 ... 532
Aerial Incident of ... 3 July 1988, Orderof22
February 1996, ICJ Reports 1996 p9 ... 532
Ahlstrom Osakyhtio v CommIssion [1988] ECR
5193 ... 339
Air Services Agreement case (1978) 54 ILR 303
... 507,508,519
Akayesu case. .. 744
Al-Adsani v UK, Judgment 21 November 2001
ECtHR; 34 EHRR 11 . .. 382, 383
Application of the Convention on the Prevention
and Punishment of the Crime of Genocide,
Provisional Measures, Order of8 April 1993,
ICJ Reports 1993 p3 . .. 607
Arrest Warrant of 11 April 2000 (Democratic
Republic of Congo v Belgium), Preliminary
Objections and Merits, Judgment, ICJ Reports
2002 p3 ... 133, 154,362,371,383,400,408,
410,448
Asylum, Judgment, ICJ Reports 1950, p266 ...
129
Baccus SRL v Servicio Nacional del Trigo [1957]
1 QB 438; 28 ILR 160 . .. 260
Bananas case. .. 706
Bankovic v Belgium and others (2001) 123 ILR 94
... 790
Barcelona Traction, Light and Power Co Ltd,
Second Phase, Judgment, ICJ Reports 1970 p3
... 130-1,140,149,340,469,476,477-8,481,
483-4,486-7,489,491,516
Beef Hormones case ... 706-7
Bering Fur Seals Fisheries Arbitration (Great
Britain v US) (1893) Moore's International
Arbitrations 755 ... 677, 683
Brazilian Loans, Judgment No 15 (1929) PCl] Ser
A No 21 ... 416,438
Brunner v European Union Treaty [1994] 1
CMLR57 ... 423
Caire (1929) 5 RIAA 516 ... 459
Certain Expenses of the United Nations, Advisory
Opinion, ICJ Reports 1962 p151 ... 278,282,
283,285,611
Certain Norwegian Loans, Judgment, Ie} Reports
1957 p9 .. , 498, 570
Certain Phosphate Lands in Nauru (Nauru v
Australia), Preliminary Objections, Judgment,
Ie} Reports 1992 p240 ... 577
Conditions of Admission of a State to
Membership of the United Nations (Article 4
of the Charter), Advisory Opinion (1948) ICJ
Reports 1947-1948 p45 ... 251
Corfu Channel, Merits, Judgment, ICJ Reports
1949 p4 ... 459--60,468,594,633,635--6
Costa v ENEL Case 6/64 [1964] ECR 585 ...
419
Cumaraswamy case. .. 406, 446-7
East Timor Case (Portugal v Australia),
Judgment, ICJ Reports 1995 p90 . .. 308, 492,
517
Effects of Awards of Compensation made by the
United Nations Administrative Tribunal,
Advisory Opinion, ICJ Reports 1954 p47 ...
292
Elettronica Sicula SpA (ELSI), Judgment, Ie}
Reports 1989 p15 ... 458,487,496,499
Elmi v Australia, UN Committee Against Torture
(2000) 7 IHRR 603 ... 300
Empire ofIran case 45 ILR 57 . .. 366, 369
Enigster case 18 ILR 542 ... 741-2
Exchange of Greek and Turkish Populations,
Advisory Opinion (1925) PCl] Ser B No 10
... 417
Factory at Chorz6w, Jurisdiction, Judgment No 8
(1927) PCIJ Ser A No 9 ... 466,467,498
Fisheries, Judgment, ICJ Reports 1951 p116 ...
129-30,626-7,628
Fisheries Jurisdiction (UK v Iceland), Jurisdiction
of the Court, Judgment, ICJ Reports 1973 p3
... 181,198-9,577,630
Fisheries Jurisdiction (UK v Iceland), Merits,
Judgment, ICJ Reports 1974 p3 ... 625,644
Flegenheimer Claim (1958) 25 ILR 148-150 ...
481
Fogarty v UK, Judgment 21 November 2001
ECtHR; 34 EHRR 12 . .. 382
Franco-Canadian Fisheries Arbitration (1986) 90
RGDIP 713 ... 646
Frontier Dispute (Burkina Faso v Mali),
Judgment, Ie} Reports 1986 p554 ... 215,
585
Gabcikovo-Nagymaros Project (Hungary/
Slovakia), Judgment, ICJ Reports 1977 p7 ...
176,183-4,196-7,198,199,451,464,512,542,
666
TABLE OF INTERNATIONAL CASES
German Interests in Polish Upper Silesia, Merits,
Judgment No 7 (1926) PCIJ Ser A No 7 ...
498
Gulf of Maine case (1984) ... 585
Haya de la Torre case. .. 129
Heathrow Airport case (1992-1993) 102 ILR 216
... 540
I Congreso del Partido [1983]1 AC 244; [1981] 2
All ER 1064 (HL); 64 ILR 307 ... 361,368,369
Interhandel, Preliminary Objections, Judgment,
ICJ Reports 1959 p6 ... 494,495--6
International Responsibility for the Promulgation
and Enforcement of Laws in Violation of the
Convention, Advisory Opinion, OC-14/94 Ser
A No 14; 116 ILR 320 ... 417-18
International Tin Council cases ... 8,12,274-5,
289,427
Interpretation of the Convention of 1919
Concerning Employment of Women During
the Night, Advisory Opinion (1932) PCIJ Ser
NB No 50 p365 . .. 187, 188
Island of Palmas case (1928) 2 RIAA 829 ... 539
Japan-Taxes on Alcoholic Beverages, Report of
the Appeals Body (1 November 1996) DSR
1996: I p108 ... 94
Jurisdiction of the Courts of Danzig, Advisory
Opinion (1928) PCIJ Ser B No 15 p17-18 ...
304
Kahan v Pakistan Federation [1951] 2 KB 1003;
18 ILR 210 ... 360
Kasikili/Sedudu Island (Botswana/Namibia),
Judgment, Ie} Reports 1999 p1045 ... 176,
187--8
Krstic case . .. 744
Kuwait Airways Corp v Iraqi Airways Co [1995]
3 All ER 694 (HL); 103 ILR 340 ... 368,379
Kuwait Airways Corp v Iraqi Airways Co (No 2)
[2001] 1 WLR 439 ... 377,379--80,381
Kuwait Airways Corp v Iraqi Airways Co (No 2)
[2001] 1 WLR 439; [2002] UKHL 19 ... 437
La Bretagne case (1986) 90 RGDIP 713 ... 540
LaGrand (Germany v USA), Merits, Judgment,
ICJ Reports 2001 ... 418,466,574,586
Land, Island and Maritime Boundary Dispute
(EI Salvador/Honduras), Application to
Intervene, Judgment, ICJ Reports 1990 p92
... 578,579,628
Land and Maritime Boundary between
Cameroon and Nigeria, Application to
Intervene, Order of21 October 1999, ICJ
Reports 1999 p1029 . " 578,649
xlvii
Lauder v Czech Republic. .. 18,20
Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South
West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory
Opinion, ICJ Reports 1971 p16 ... 137,281,
316,584
Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, Ie} Reports 1996 p226 ...
95,104,126,127,130,463,591,593,600
Legality of the Use by a State of Nuclear
Weapons in Armed Conflict (Request by
WHO), Advisory Opinion, ICJ Reports 1996
p66 . .. 280, 284, 292
Legality of Use of Force (Yugoslavia v Belgium),
Provisional Measures, Order of2 June 1999,
ICJ Reports 1999 p124 ... 27,595
Letelier and Moffat (Chile/United States) 88 ILR
. " 727; (1992) 31 ILM 1 ... 536
Lockerbie cases ... 27,344,525,577,607
Loizidou v Turkey (Preliminary Objections),
Judgment 23 March 1995, Ser A, No 310 ...
194,462
'Lotus' Judgment No 9 (1927) pcn Ser A No 10
pI8-19 ... 334-5,338,346
McElhinney v Ireland and UK, Judgment 21
November 2001 ECtHR; 34 EHRR 13 ... 382
Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, Jurisdiction and
Admissibility, ICJ Reports 1995, p6 ... 19,
188-9,649
Maritime Delimitation in the Area between
Greenland and Jan Mayen, Judgment, Ie}
Reports 1993 p316 ... 649
Mavrommatis Palestine Concessions, Judgment
No 2, (1924) PCn Ser A No 2 p19 ... 190,477
Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v USA), Merits,
Judgment, ICJ Reports 1986 p14 ... 109,127,
134,141,151,154-5,156,179,456,457,475,
565,591,593,594,596,598,600,601,602,
605--6,747
Monetary Gold Removed from Rome in 1943,
Judgment, IC] Reports 1954 p19 ... 492,572,
581
North Sea Continental Shelf, Judgment, Ie}
Reports 1969 p3 ... 123, 125, 126, 135,222,
532,577,585,625,642,643
Nottebohm case, Second Phase, Judgment, IC]
Reports 1955 p4 ... 341,416-17,476,480-1,
481-2,484,487
Nuclear Tests (Australia v France), Judgment, IC]
Reports 1974, p253 ... 139-40,175,577,578,
666
xlviii TABLE OF INTERNATIONAL CASES
Nuremberg Judgment (1948) ... 307
Passage through the Great Belt, Provisional
Measures, Order of ... 29 July 1991, ICJ
Reports 1991 p12 ... 576,634
Philippine Admiral, The [1977] AC 373; [1976] 1
All ER 78; 64 ILR 90 . .. 360
Prosecutor v Anto Furundiija ... 748,749
Prosecutor v Delalic and others . .. 749
Prosecutor v Dusko Tadic ... 109,456-7,728,
739,816
Prosecutor v Kunarac ... 749
Questions of Interpretation and Application of
the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie, Provisional
Measures, Orders of 14 April 1993, ICJ Reports
1992 p3 ... 344
Rainbow Warrior Arbitration (New Zealand v
France) (1990) 82 ILR 499; (1986) 74 ILR 256
... 319,450-1,454,540
Rawle Kennedy v Trinidad and Tobago, Comm
No 845/1999, Decision 2 November 1999, UN
Doc N55/40 Vol II Annexe XI A ... 195
Red Crusader case. .. 536
Red Sea Islands case (2001) 40 ILM 900 ... 12,
540
Reparation for Injuries, Advisory Opinion, ICJ
Reports 1949 p179 ... 272-3,274,276,281,
282,301,302,303,312,446,488,660
Republic of the Philippines v Marcos and others
806 F.2d 344 (1986); 81 ILR 581 ... 436
Reservations to the Convention on the
Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, ICJ Reports 1951
pIS ... 91,93, 191-2,744
Restrictions to the Death Penalty, Advisory
Opinion, Inter-American Court of Human
Rights AO OC-3/83, 8 September 1983, (1984)
23 ILM 320 ... 193
Right of Passage over Indian Territory, Merits,
Judgment, ICJ Reports 1960 p6 ... 129, 131
Saiga case (St Vmcent and the Grenadines v
Guinea) ... 19,640,645
St Pierre and Miquelon case (1992) 95 ILR 645
... 540
Santa Elena v Costa Rica, ICSID Final Award 17
February 2000 . .. 312
Serbian Loans, Judgment No 14 (1929) PCIJ Ser
TABLE OF STATUTES BY COUNTRY
A No 20 ... 416,438
Shearson Lehman Bros v Maclaine Watson & Co
(1987) 77 ILR 107 ... 289 UK LEGISLATION US LEGISLATION
Sokolovic case . .. 748
Anti-Terrorism, Crime and Security Act 2001 Alien Tort Statute 1789 . .. 430
South West Africa cases ... 474,491,516-17,
577,585 s.47 ... 345
Sovereignty over Pulau Ligitan and Pulau s.51 ... 345 Constitution ... 425-6, 432
Sipadan (Indonesia/Malaysia), Application to
Intervene, Judgment of23 October 2001, ICJ Criminal Justice Act 1988 . .. 8, 9 D'Amato Act ... 350
Reports 2001 . .. 578
Foreign Sovereign Immunities Act 1976 ... 362,
Diplomatic Privileges Act 1964 ... 394,435
Taba case (1988) 80 ILR 224 ... 539-40 366,370,373,375,452
Temple of Preah Vihear, Merits, Judgment, ICJ European Communities Act 1972 ... 434 s.1603(d) ... 367
Reports 1962 p6 ... 180-1 s.1605(2)(a) ... 367
Extradition Act . .. 8
Territorial Dispute (Libyan Arab Jamahiriya/ s.161O(2) ... 375
Chad), Judgment, ICJ Reports 1994 p6 ...
186-7 Human Rights Act 1998 ... 439
Helms-Burton Act ... 350
Texaco Overseas Petroleum Co v Libyan Arab
Republic (1977) 53 ILR 389 ... 312 Immigration Act 1971 ... 812
Maritime Drug Law Enforcement Act 1986 ...
Tinoco Arbitration (1923) 1 RIAA 369 . .. 238, International Organizations Act 1968 . .. 277
342
539
Trail Smelter Arbitration (1939) 33 AJIL 82; Patents Act 1949 ... 430
Omnibus Diplomatic Security and Anti-
(1941) 35 AJIL 684; 3 RIAA 1905 ... 539,658, Protection of Trading Interests Act 1980 ... 349 Terrorism Act 1986 ... 345
666,670
Shipping Contracts and Commercial Documents Prohibition Law. .. 348
Act 1964 . .. 349
US CASES State Immunity Act 1978 ... 361,368,371,435
Part I. .. 399 OTHER COUNTRIES
US v The Palestine Liberation Organization and s.3 ... 368
others AILC 2nd Series vol 12 p386; 695 ESupp s.3(3)(a)-(b) ... 368 French Constitution. .. 424
1456; 82 ILR 282 ... 433
s.4 ... 368
US Diplomatic and Consular staff in Tehran, German Constitution. .. 423, 434
s.5 ... 370
Judgment, ICJ Reports 1980 p3 . .. 393-4,
456,459,461 s.7-s.8 ... 368
Netherlands Constitution ... 422,434
US-French Air Services Arbitration (1978) 54 ILR s.9 ... 365
303 ... 509 s.13(1)-(2) ... 372
Russian Constitution. .. 424-5
s.13(3)-(4) ... 374 Russian Federal Law on International Treaties ...
Van Gend en Loos ECJ (1963) 1 CMLR 82 ... s.14(2) ... 366,379 424
313 s.14(5) ... 366
s.20 ... 399 Swiss Constitution. .. 157
Western Sahara, Advisory Opinion, ICJ Reports
1975 p12 ... 315,551,584
Woodpulp cases 89/85, Ahlstrom Osakyhtio v
Commission [1988] ECR 5193 ... 339

TABLE OF DOMESTIC CASE LAW
BY COUNTRY
UK CASES
Al-Fin Corporation's Patent, Re [1970] Ch 160
... 430
Alcorn v Republic of Colombia and others [1984]
2 All ER 6 ... 433, 435
Attorney-General for the Isle of Man v Poyiadjis
... 17
Bennett v Horseferry Magistrates' Court [1993]
3 All ER 138 ... 431-2
Buttes Gas and Oil Co v Hammer [1982] AC 888;
3 All ER 616 ... 377-8,438
DPP v Doot [1973] AC 807; [1973] 1 All ER 940
(HL) ... 338
DPP v Stonehouse [1978] AC 55; [1977] 2 All
ER 909 (HL) . .. 338
Jazayeri, Re . .. 16
Liangsiriprasert v Government of the USA
[1991]1 AC 225; [1990] 2 All ER 866 (PC)
... 338
Liby~n Arab Foreign Bank v Manufacturers'
Hanover Trust Co [1989] 1 Lloyd's Rep 608
... 16
Luthor v Sagor [1921] 3 KB 532 ... 376
Mox Plant case ... 18
Oppenheimer v Cattermole [1976] AC 249;
[1975]1 All ER 538 ... 376-7
Parlement BeIge, The (1879-1890) 5 Prob Div
197 (CA) ... 360
Propend Finance v Sing III ILR 611 ... 403
R v Bow Street Metropolitan Stipendiary, ex parte
Pinochet Ugarte (Amnesty International
Intervening) (No 3) [2000] AC 151; [1999]
2 All ER 97 ... 8-10, 12, 16, 18, 19, 133,
156-7,364,381,399,403,408,409-10,435,
438,439
R v Charrington . .. 641
R v Mills. .. 640
Rayner (JH) (Mincing Lane) Ltd v Department
of Trade and Industry [1989] 3 WLR 969 ...
277
TABLE OF DOMESTIC CASE LAW BY COUNTRY Ii
OTHER COUNTRIES Philippine Embassy Bank Account Case, German
Federal Constitutional Court 13 December
Banca Carige SpA v Banco Nacional de Cuba & 1977 46 BverfGE 342; 65 ILR 146 ... 372,373,
Anor [2001] 1 WLR 2039 ... 16 374
Concerning Certain Normative Acts of the City Reference re Secession of Quebec [1998] 25 SCR
of Moscow and Some Other Regions VKS 1966 217 ... 216
Rio Tinto Zinc Corp v Westinghouse Electric
Corp [1978] lAllER434(HL) ... 339 No 2 ... 432
SOS Attentat and Castelnau d'Esnault v Qadaffi,
Eichmann case ... 352-3,743-4 Head of the State of Libya, France Court of
Saloman v Commissioners of Customs and Cassation criminal chamber 13 March 2000
Excise [1967] 2 QB 116 ... 433 No 1414 ... 133,408
Hoess case ... 742
Suresh case. .. 751
Trendtex v Central Bank of Nigeria [1977] 1 QB
Internationale Handelsgesellschaft [1974] 2
529; [1977] 1 All ER 881; 64 ILR 111. .. 361,
CMLR 540 ... 434 Tabatabai case 80 ILR 388 ... 401
429
Westland Helicopters Ltd v Arab Organization
for Industrialization 108 ILR 565; [1995] 2 All
ER387 ... 278
US CASES
Air France and British Airways v Port Authority
of New York and New Jersey ... 435
Breard cases ... 19,431,432,439
Bush v Gore 121 S Ct 525 (2000) ... 245
Clayco Petroleum Corporation v Occidental
Petroleum Corporation and others 712 F.2d
404 (1983); 81 ILR 522 ... 436
Cutting case. .. 335, 346
Filartiga v Pefia-Irala 630 F.2d 876 (2nd Cir 1980)
... 157,430
Greifelt ·and others ... 742
Hartford Fire Insurance Co v California 113 S Ct
2891 (1993) ... 350
Mondev International Ltd v USA (Case No
ARB(AF)/99/2) ... 461
Schooner Exchange v McFaddon (1812) Cranch
116 (US) . .. 359-60
Underhill v Hernandez 168 US 250 (1897) ...
376,436
US v Aluminium Co of America 148 F.2d 416
(1945) ... 338
US v Alvarez-Machain [1992] 112 S Ct 2188,
USSC ... 431,439
US v Gonzalez 776 F.2d 931- (1985) ...
342
 REFLECTIONS FROM THE
INTERNATIONAL COURT
HE Judge Rosalyn Higgins

I have been asked to offer a short prefatory reflection on the role and responsibility
of a Judge of the International Court of Justice in the contemporary international
legal system.
There are aspects that seem to me both broad and narrow. To take the broader
issues first: I am sympathetic to the current trend of thinking that no international
actors are immune from scrutiny. It is only natural there should be public interest in
their independence from national or other pressures, and in the absence of any pos-
sible conflict of interest. The maintenance of these standards, which both the legal
profession and the informed public are entitled to expect, requires the active support
of the presidents of international courts and tribunals. The maintenance of these
standards within a court, and the visible manifestation of this commitment, is part of
the job-description of judicial leadership.
That being said, I do not believe that a Judge of the International Court is in any
more narrow sense 'responsible to' any other organ or international actor. The Inter-
national Court is a main organ of the United Nations. Each year it presents a written
report to the United Nations on its work. And in recent years the practice has grown
whereby the President addresses the General Assembly and its Sixth Committee (and
perhaps even the Security Council). But the Court is not 'responsible to' any of those
bodies in the sense· that its role is to please or 'satisfy' them. The Court is not
'answerable' to them if its legal decision is not the pronouncement that they might
have hoped for on any particular occasion. And indeed, that is well understood by all
concerned. The General Assembly is interested in, and generally appreciative of, the
work that the Court reports to it. But members of that body-and certainly the
Assembly as such-carefully refrain from observations on th~ Court's findings in
particular cases.
Certainly the international judge is not 'responsible to' the particular States
appearing before him/her. It is totally inappropriate for a State to assume, still less to
say, that a particular Judge's vote in a case was due to his or her nationality (or race, or
religion). Only those present in the Deliberation Chamber can know what views were
4 ROSALYN HIGGINS
held, by whom, and on what grounds. In fact, the dynamics of the legal exchanges
between the Judges of the International Court in no way reflect tired stereotypes.
Assumptions based on such ideas would be surprisingly wide of the mark.
Even if a Judge of the International Court is not 'responsible to' any particular
organ of the United Nations, or any government, the very fact of being elected to this
high office does carry with it enormous responsibilities. What does this mean in
practical terms? It means the responsibility to work at maximum capacity, to continue
systematically to read the literature in the field, to study the pleadings meticulously,
to make every effort to see arguments from all points of view, and to make up
one's mind only after reading everything, listening to everything, and considering the
viewpoints of others.
In my view, this generalized responsibility of the Judge also puts an emphasis on
collegiality. I do not believe that Court Judgments are 'weakened' by separate or
dissenting opinions. A Judgment is as good or as bad as the reasoning it relies on. A
poor Judgment will be no more persuasive by virtue of unanimity. That being said,
the first task of the Judge is to contribute to the common enterprise of the Court.
Ideas should be shared, suggestions made in timely fashion. The main priority is to
contribute to an impressive and authoritative Judgment. There is necessarily some
measure of give and take required. But in a successful Court this is in no way
synonymous with Judgments that are merely the lowest common denominator of the
views of the various Judges.
A judge is not an academic and judicial opinions should not be academic articles.
They should, in my view, be resorted to only exceptionally, in respect of points of real
importance for the particular case at hand; and should not go beyond that either as
regards frequency or as regards the subject matter traversed.
Of course, the Courts as such, and not only the Judges who comprise them, bear
this generalized responsibility to the international community too. This requires that
all Judgments are fully reasoned and that all arguments of the parties that could affect
the outcome are properly addressed or answered. There are sometimes grounds for
judicial economy but this concept cannot excuse an absence of reasoning nor can it
provide grounds for avoiding issues simply because they are hard to resolve. (And no
more can solace in the face of difficulty be sought in invocation of a 'non liquet!). A
Court's job is precisely to decide difficult, and often sensitive, points oflaw.
Courts must also constantly strive to maintain that difficult line between the main-
tenance of the highest quality judgments and the achievement of an efficient
throughput of work. This has been a high priority for the International Court of
.Justice. The last fifteen years have seen an enormous growth in its docket. Mindful of
the need to be responsive to the trust placed in it by States engaged in litigation, the
Court now has its work methods under more or less constant review. The heavy
docket means there is no longer the luxury periodically to review, at leisure, the
entirety of the Rules of Procedure, simply as an exercise that should be engaged in
from time-to-time. Instead, the Court has moved to a practice of entrusting its Rules
Committee with a 'watching brief' on particular Rules that are proving problematic
REFLECTIONS FROM THE INTERNATIONAL COURT 5
in the practice of the Court, and making proposals for their amendment. Revisions of
Rules 79-80 are resulting examples. Other Rules are under review.
Other changes in the Court's methods of work have also been reported to the
General Assembly. They include no longer generally having recourse to Judges' Notes
in Preliminary Objection cases and the introduction of Practice Directions.
The International Court of Justice is the Court of the entire United Nations. While
the Judges are elected in their personal capacities, they must through their work serve
the entire international community, and not anyone particular region or legal system.
It follows that the work-model within the Court must be collegial, involving everyone,
and not delegated to particular Juges-Rapporteurs. This involvement of the entire
Bench in every phase of all Court Judgments is, of course, time consuming. Even
though judicial efficiency is of great importance, it is perhaps of even greater import-
ance for States to be confident that all Judges have listened to and thought about
their arguments, and have fully participated in the Judgment ultimately rendered. A
not inconsiderable side-benefit is that Judgments are normally very detailed and
thorough, with the points in issue fully canvassed.
How one regards the role and significance of international law today can be
answered either at the level of philosophy or pragmatic observation. In this very brief
prefatory comment I can dono more than offer a personal outline-sketch. I have
elaborated elsewhere why I regard international law as a special and stylized system of
decision-making, rather than as a purportedly mechanistic application of 'rules'.
This particular perception of international law has the virtue that it makes clear where
these so-called 'rules' (or applicable norms) come from, who is purporting to apply
them, and in what factual context. It also makes it explicit that international law is a
vehicle for the attainment of certain values-which values in turn must be open to
scrutiny and debate.
I find it hugely pleasing that legal theory is no longer unfashionable. In the last
twenty years there has been a tremendous debate about the nature of international
law, engaged in by protagonists whose work challenges us intellectually at every turn.
There is no longer a rigid division between 'the theoreticians' and 'the practi-
tioners'. Indeed, some of the leading theoreticians have had distinguished careers as
practitioners.
I find it equally pleasing that national Courts everywhere now routinely engage in
issues of international law. They, too, have come to recognize that it is not an arcane
and mysterious subject, upon which only 'others' should pronounce, but is simply
part of the law of the land. Without minimizing the difficulties that flow from the
diverse ways in which treaty law is received into national law, this new phenomenon
of engagement by domestic Courts is visible everywhere. The impact upon our
daily lives of the decisions of international organizations, the renewed importance of
the United Nations, and the open embrace of the values of human rights, have all
contributed to this welcome trend.
Whether one regards international law as 'rules that restrain', or as 'a common
language', or as a 'normative guidance in the making of decisions', it is clear that it
6 ROSALYN HIGGINS
has a significant role to play in today's contemporary problems. That being said, there
are several points to be made. First, the judicial element in that role should not be
exaggerated. There has been an explosion of international litigation and arbitration-
but this is a reflection of an improved international climate, and not the cause of it.
Secondly, the invocation and use of law has its place in diplomatic discourse and
negotiation, both procedurally and substantively: it is not reserved to litigation. Thirdly,
the role that international law can play in the resolution of the fearful problems of the
day does depend, to a degree, on how one views this creature 'international law'. A
disembodied set of rules may be functionally ill-suited to respond to the problems of
applying 'law' to entirely novel circumstances. The function of international law is to
find that fine balance between legal expectations generated by the experiences of the
past and the solving of problems as they present themselves today.
We should not underestimate the difficulties. They have been particularly evident
as we struggle with notions of self-defence, reprisals, terrorism, non-State actors and
all the new realities of our troubled world. The Charter is a living instrument: but
where is the end of creative interpretation and where is the beginning of illegality? Is
the legal stairway from Article 43 of the Charter to (peacekeeping' to (peace enforce-
ment'to (coalitions of the willing' an infinitely extending staircase? Does the answer
to that question lie in process and form (that is, in knowing that there has been a
.binding decision of the Security Council) or in substance? And who is to articulate
that substantive answer?
There are many comparable conundrums to wrestle with. What is the reach of
exceptions to the normal requirements of (the rule of law'? What, indeed, is meant by
(the rule oflaw'? Is the contemporary interest in ethics an intrusion into legal rules or
simply the articulation of a value inevitably present in international law as legal
process?
It is useful to step back from analysing today's legal problems (on which there has
been a profusion of interesting and useful writing) to think about these fundamental,
over-arching questions. We should not pretend that on these profound dilemmas
there are clear answers-(correct rules' which simply wait to be impartially applied.
There are not clear answers. There is a process by which optimal answers can
be arrived at, with leading guidance given by those decision-makers entrusted by
the international community with that task. This is the contemporary challenge
in international law, and the particular responsibility of the international judge.
THE PINOCHET CASE-SOME
PERSONAL REFLECTIONS
The Rt Hon The Lord Millett
It is fifty years since I studied public international law at Cambridge. (Studied' rather
overstates the case; prospective barristers like me knew that we would be unlikely
to need the subject in the Hendon Magistrates Court or the Southend County
Court where we expected to spend our early years in practice. So we did not pursue
our studies with as much diligence as we should have done. But we were assiduous
in attending the lectures, which were given by the great Sir Hersch Lauterpacht, the
most venerated international lawyer of the day. He was a marvellous lecturer and an
inspiring teacher who conveyed his own enthusiasm to his students.
The Nuremburg trials were then of recent memory and the Cold War was in its
early stages. We were still optimistic that Nazi criminals remaining at large would be
brought to trial, that the international community would take on board the lessons
of the holocaust, and that in future crimes against humanity would be punished. No
longer, we hoped, would the way in which a sovereign State treated its own nationals
be regarded with indifference by the rest of the world.
But it was not to be. The Cold War lasted for a further forty years. With the notable
exception of Eichmann, the major Nazi criminals were not brought to justice. They
were too useful to be locked up or hanged. Former neutral and even Allied countries
offered them refuge and competed for their services. Not until the Cold War was over
did the world turn its attention once again to unfinished business. And by then a new
generation of monstrous tyrants had appeared. The international criminal court,
which Lauterpacht had advocated with such passion fifty years ago, has finally been
established, albeit in a different millennium.
In the years between I had little or nothing to do with public international law.
As a barrister practising at the Chancery Bar, first as a Junior and later as Queen's
Counsel, my time was almost exclusively spent on domestic English legal problems.
Occasionally they had a foreign element, so private international law issues occasion-
ally reached my consciousness. But public international law, like criminal law, was a
distant memory. It recalled undergraduate days, along with punting on the Cam and
May Balls, but that is all.
8 THE RT HON THE LORD MILLETT
In 1986 I was appointed to the Chancery Bench, and one of my first cases was
the International Tin Council case. The question was whether the English Court had
jurisdiction under the Companies Act to wind up an international organization. It
involved issues of company law and both private and public international law.
Twenty-two counsel, if I remember correctly, appeared before me in a packed court.
They included Rosalyn Higgins, now a judge of the International Court of Justice at
the Hague, but then a junior counsel appearing for the International Tin Council, and
Eli Lauterpacht, Hersch's son, who was appearing as junior counsel for the creditors.
He delivered an academic lecture rather than a legal argument. I well remember the
moment when, referring to a decision of the House of Lords, he mentioned in passing
that it was generally regarded by international lawyers as wrongly decided. Since
a mere High Court judge like myself is not allowed even to entertain such a thought,
I hurriedly made a mental note not to mention the case at all in my judgment.
I have only one regret about the International Tin Council case. Before it began my
wife presented me with a model of the Tin Man in the Wizard of Oz and suggested
that I place it on the Bench in front of me, but I never had the courage to do so.
By 1998 I was a Lord of Appeal in Ordinary and a member of the Appellate
Committee of the House of Lords. Within a few months I had the great privilege of
being a member of the seven-man panel which sat to hear the Pinochetcase, arguably
the most important public international law case in my professional lifetime.
The story of the case is well known. In September 1973 General Pinochet, the
Commander-in-Chief of the Chilean army, seized power in Chile and installed him-
self as Head of State. He retained power until 1990, when he stepped down in favour
of a democratically elected government. It was alleged that he had maintained himself
in power by the systematic and institutionalized use of torture as an instrument of State
policy. In October 1998 he visited the United Kingdom in a private capacity. Contrary
to some press reports at the time, he was not travelling on a diplomatic passport.
He was arrested by the Metropolitan Police on an international warrant issued by
a Spanish examining magistrate. The Crown Prosecution Service, acting on behalf of
the Kingdom of Spain, applied for his extradition to Spain. General Pinochet opposed
the application and applied for a warrant of habeas corpus.
General Pinochet put forward two arguments. First, he claimed that the English
courts had no jurisdiction over offences committed by a foreigner.abroad~ The
Criminal Justice Act 1988, which conferred extraterritorial juri$diction on the
court, was not retrospective. Secondly even if there was jurisdiction, he claimed State
immunity as a former Head of State for acts committed in the exercise of his official
functions.
The case was heard by the Divisional Court-three judges presided over by the
Lord Chief Justice. It was tried with great urgency. The hearing lasted only two
days, and unreserved judgment was given on the following day. General Pinochet's
submissions on jurisdiction were rejected. The 1988 Act was not retrospective, so we
could not bring a prosecution ourselves. But the Extradition Act was retrospective. We
could extradite a defendant for an offence in respect of which the English Court had
THE PINOCHET CASE-SOME PERSONAL REFLECTIONS 9
jurisdiction at the date of the warrant. But the General's claim to State immunity was
upheld.
The Crown's appeal to the House of Lords was originally heard by a panel of five
Law Lords. General Pinochet did not challenge the ruling that the Extradition Act was
retrospective, so the appeal was confined to the question of immunity. Once again
there was something of a rush to judgment. The hearing lasted six days, and judgment
was given with unusual speed only two weeks later. By a majority of three to two
the Appellate Committee ruled that extradition could go ahead. The immunity of a
former Head of State was confined to acts performed in the legitimate exercise of his
official functions, and these did not include torturing his political opponents.
As is well known, the decision was later set aside because of Lord Hoffmann's
presence on the panel which heard the case. This was an example of pure bad luck.
The case was obviously politically sensitive, and the senior Law Lord, Lord Browne-
Wilkinson, who is responsible for selecting the particular Law Lords to sit on a case,
was concerned that whatever the outcome the losing side would accuse him of having
packed the Committee. So he simply selected the five most senior Law Lords to sit.
These did not include Lord Hoffmann. Unfortunately Lord Browne-Wilkinson then
found that he himself was unable to sit, and at the last moment the sixth senior Law
Lord took his place. This was Lord Hoffmann.
Judgments of the House of Lords are delivered in the Chamber, and take the form
of a formal debate whether the appeal should be allowed or dismissed. Each member
of the Committee who sat on the case rises in order of seniority and briefly states his
opinion. Lord Hoffmann, being the most junior, spoke last. When he rose the voting
was 2-2, and there was intense excitement in the Chamber. It was shaping up to be a
penalty shoot-out. Lord Hoffmann has often been described since as having had the
swing-or even the casting-vote. But in truth his vote was no more decisive than
those of the other two in the majority.
I was sitting over a coffee in the Bois de Boulogne when I received a call on my
mobile to invite me to sit on the seven-man panel to re-hear the case. This time there
was no rush to judgment. The case was much more fully argued. The Republic of
Chile appeared for the first time to press the claim for State immunity. The hearing
took twelve days, and we took six weeks to consider our decision. General Pinochet
successfully argued that the Extradition Act was not retrospective. Our decision on
this point was unanimous. We can only extradite where we can prosecute. Like the
previous panel, we rejected General Pinochet's claim to immunity, this time by a
majority of six to one. On the question of jurisdiction, five of the six ruled that there
was no jurisdiction over offences committed by foreigners abroad before the Criminal
Justice Act 1988 conferred extraterritorial jurisdiction on the English courts. I dis-
agreed. At first sight, the difference between us appears to be a technical one: We all
agreed that torture by public officials carried out as an instrument of State policy was
already an international crime of universal jurisdiction by 1973. The majority con-
sidered that this meant that, as a matter of international law, the United Kingdom
was free to assume extraterritorial jurisdiction, which it eventually did in 1988.
10 THE RT HON THE LORD MILLETT
I considered that it meant that, as a: matter of customary international law, which is
part of the common law, the United Kingdom already possessed extraterritorial
jurisdiction.
But the difference really goes far deeper than that. The majority considered that
torture by foreigners abroad was not a crime at all under English law before the 1988
Act made it one. I could not accept that. In my opinion torture has always been a
crime under every civilized system of law. It is just that, until 1988, our courts had
no jurisdiction over it if it was committed abroad. There was no question of retro-
spective criminalization of conduct which was lawful when committed. Torture was
already a crime under both English and Chilean law. A similar point was made by the
Nuremburg Trial and by the Supreme Court of Israel in the Eichmann case.
On the same day that we delivered our judgment, NATO forces began to bomb
the sovereign state of Serbia in an attempt to stop the atrocities its government was
committing against its own citizens in Kosovo. Two events on a single day showed
how far we had come from the classical doctrines of international law as we had
learned them fifty years ago. No longer is international law a matter which concerns
sovereign States alone. It marches with human rights law to protect individuals from
State action. The world community has finally decided that the way a sovereign State
treats its own nationals is not a purely internal matter. International intervention is
justified to prevent a widespread and systematic attack on a civilian population by its
own government. The justification for intervention is that such an attack, conducted
on a large scale and as a matter of State policy, is an attack on the legal order itself and
threatens the peace and security of the world. As with the Pinochet case, the moral
justification is that some crimes are so great that they are not just crimes against .
domestic law and order but crimes against humanity itself. Those who commit
them do not merely offend against their own domestic law, but are (enemies of all
mankind'.
THE PER·SPECTIVE OF
INTERNATIONAL LAW FROM
THE BAR
Ian Brownlie, CBB, QC
The literature often addresses the question of the (relevance' of international law
and, at the outset of studying the subject, such discussions are useful. It is a par-
ticular characteristic of international law that it is not easy for the observer or
student to develop the necessary empathy. The problem of perception is increased
by the distance between ordinary experience and the wavelength of international
affairs.
Experience of legal practice reveals the impressive diversity of contexts in which
reference to international law is necessary. The following list is illustrative and by
no means exhaustive but it does address the issue of relevance. The focus of the
classification is upon the legal function and context in each case.
(1) Advice to government delegations involved in negotiations with other
governments, for example, concerning maritime delimitation or the creation
of the mechanism for the peaceful settlement of a dispute.
(2) The drafting of written pleadings in relation to cases in front of courts
of arbitration or the International Court of Justice, together with the
preparation of oral arguments.
(3) Assistance to government delegations involved in procedures of mediation or
conciliation in order to settle, or to ameliorate, disputes between States.
(4) Advice to the armed forces of a State relating to the application to the
humanitarian law of war in an armed conflict, including civil strife, and the
drafting of the rules of engagement to be observed in the military operations
envisaged.
(5) The provision of legal advice to national liberation movements, to organized
minority groups within States, and to political parties.
(6) Assistance to non-governmental international and national organizations,
12 IAN BROWNLIE
such as Amnesty International and Greenpeace International. Such organiza-
tions may be involved as parties in international dispute mechanisms, and as
parties, or interveners, in cases in national courts.
(7) The giving of evidence and, or, advice to the committees of parliamentary
assemblies involved in the investigation of particular incidents or crises.
(8) Assistance to temporary administrations set up with the authority of the
organs of the United Nations, as in the case of East Timor.
(9) Advice to private corporations on questions of international law, for example,
in relation to the protection of investments, concession agreements, access to
natural resources, and questions of human rights.
(10) Acting as Counsel and Advocate in proceedings before international tribunals
and specialized bodies, such as the United Nations Compensation Commis-,
sion and the International Tribunal for the Former Yugoslavia. The inter-
national tribunals include the ad hoc courts of arbitration, such as the
Arbitration Tribunal created to determine issues of sovereignty and maritime
delimitation in the Red Sea Islands case, or the Eritrea-Ethiopia Boundary
Commission, established pursuant to an agreement dated 12 December 2000.
(11) Acting as Counsel in municipal court proceedings involving matters of public
international law, such as the appeals and other proceedings concerning the
International Tin Counci~ and the two appeals in the Pinochet case.
The above list of types of work provides a simple but effective indication of the
responsibilities of a member of the Bar specializing in matters of international law.
However, the picture needs to be rounded out by reference to the not inconsiderable
number of constituencies involving specialized areas of public international law,
including human rights, the legal protection of the environment, international
criminal law, petroleum law, trade law, refugee law, and monetary law. In the field of
arbitration the applicable law in bilateral investment treaties will involve a multiple
reference to municipal law, public international law, the treaty provisions themselves,
and perhaps other elements.
Members of the Bar will, in the setting of national courts, and in providing episodic
advice, normally work as individuals or in small groups. In the practice of inter-
national law the clients are normally States, organizations and corporations. The
milieu calls for working in groups and, perhaps, in a series of overlapping groups.
States are not infrequently concerned to establish a: degree of internal accountability
and the team working on a problem, or preparing litigation, may thus consist of
three elements: the in-house government lawyers (of the Foreign Ministry, the
Attorney-General's Office, or some other relevant ministry), the external lawyers, and
a nationally based monitoring group, which will include persons representing local
and regional interests.
It is necessary to point out that, in the International Court and before other inter-
national tribunals, it is not necessary to belong to the Bar of any State, or to be
THE PERSPECTIVE OF INTERNATIONAL LAW FROM THE BAR 13
otherwise a member of the legal profession. Locus standi depends upon the authority
to appear conferred by the client concerned. It is quite normal for States to be
represented by distinguished academic lawyers or other legal specialists who have no
professional qualifications. Moreover, it is a pleasant and necessary characteristic of
practice that other professions are directly involved. Thus teams may encompass
economists, petroleum engineers, members of the armed forces, hydrographers, sur-
veyors, geographers, and social anthropologists. These specialists will often have the
role of expert witnesses, subject to cross-examination, but the State involved in litiga-
tion must make its election. Provided their names are formally indicated on the
delegation list presented to the tribunal, such specialists may address the tribunal in
the role of advocates, but will not then, of course, appear as expert witnesses.
Tribunals may, and sometimes do, make practice directions which impose certain
duties on Counsel. More often the only source of professional discipline will be the
governing bodies of the legal profession (or two professions in some common law
jurisdictions) of the State of origin of the individual concerned. Thus, the English Bar,
of which the writer is a member, prohibits the practice of touting for work and, in
addition, the English barrister is not permitted to select the clients (this injunction is
known familiarly as the 'Cab Rank' principle).
Beyond the formal and institutional imposition of rules of conduct, the standards of
conduct applying to international law practice tend to reflect the fact that the clients
are often States and organizations. Such clients value confidentiality. For this and
other reasons, it is tempting fate to publish material about litigation one has been
concerned with, even when all appears to be said and done. New issues may arise and
the discussion of a case in a journal may, in retrospect, be discovered to contain
hostages to fortune.
It is important' to appreciate the idiosyncratic aspects of a practice which involves
acting for States and working within the context of governmental action and diplo-
macy. In the preparation of written and oral arguments before international tribunals
the freelance pleaders are working exclusively as representatives of the State concerned
and not as unauthorized experts or amici curiae. Consequently, all material presented
to the tribunal must have the authorization of the government-appointed head of the
team, the head of the delegation, usually designated as 'the Agent'. In this context
Counsel cannot be permitted' to answer questions of substance addressed to him
or her by the Tribunal except with the permission of the head of delegation. In
cases before the International Court and in inter-State arbitrations the practice is for
questions to be addressed to the parties at the end of the first round of the oral
hearings, these questions to be answered in the course of the second round speeches
or within a period, usually two or three weeks, after the close of the session. There is a
special culture of speech preparation with its own difficulties and points of protocol.
Time-keeping is of the essence.
It is often the case that the association with a State engaged in a major boundary
dispute or resource-related maritime delimitation will last for thre.e or four years,
commencing with the giving of general advice on the merits and the often difficult
14 IAN BROWNLIE
question of establishing an appropriate forum for peaceful settlement of the dispute.
However, the freelance adviser retains, and should retain, the independence of
approach which is characteristic of the professional lawyer. Confidential advice to the
client must involve frankness and objectivity, otherwise it is worthless, and probably
harmful.
Working in a milieu in which the clients are States presents problems of a special
sort, relatively unknown in a single jurisdiction practice. Within the United Kingdom
the Bar would consider appearance against the government and its agencies as
perfectly normal and a necessary concomitant of the Rule of Law. But should this
principle apply to disputes between States, in which Counsel will appear against his
own government? The principle must surely remain applicable, if the Rule of Law is
to be maintained. And does the principle apply in a situation in which the client is a
State which is, or is likely to be, in a state of armed conflict with Counsel's State of
nationality? No doubt there is a clear prima facie constraint here. But, once more, the
ultimate source of guidance is the Rule of Law and, in the present context, which is,
the practice of public international law, the principles of general international law,
and the principles enshrined in Article 2 of the United Nations Charter.
The general principle applicable to practice at the English Bar is that the barrister
does not select his or her clients, and this principle of objectivity applies to the nature
of the causes which a client may espouse and the type of conduct with which the
client is allegedly associated. Without such a principle the Rule of Law would be
set at naught and in criminal trials defendants would lack representation. In some
circles the claim is made by certain lawyers that they will only work for good causes.
Apparently, such good causes do not include the giving of practical reality to the Rule
of Law. It is surely of the essence of the principle of legality that the law should be
available to all.
In conclusion it is worth emphasizing that, at least in the tradition of the English
Bar, the legal adviser or advocate represents the client, but retains a significant degree
of independence and aloofness. If the barrister simply identifies with the client in all
respects, his value will diminish. The purpose of advocacy is to establish a link with
the court and, if a client ignorant of or indifferent to the judicial context imposes
inappropriate instructions the desired link with the court will be weakened or
broken. Pleasing the client is one thing, winning a case is another, although if one is
fortunate, both outcomes may be achieved.
REFLECTIONS FROM THE
PRACTICE OF
INTERNATIONAL ·LITI·GATION
Campbell McLachlan
My first experience of International Law in practice came from the less con-
ventional direction of Private International Law. At a relatively young age, I was
asked by the then director of the Legal Division of the Commonwealth Secretariat,
Jeremy Pope, to attend as Commonwealth Observer the Working Sessions of the
Hague Conference on Private International Law on the Taking of Evidence Abroad
and Choice of Law in International Sale of Goods. These were diplomatic confer-
ences concerned with respectively the review of an existing convention of great
practical importance in International Commercial Litigation and the attempt
(ultimately still-born) to conclude a new convention on choice of law to comple-
ment and fill the gaps left by the great Vienna Convention on a Uniform Law
for the Sale of Goods. As such, they carried the trappings of international
treaty-making by State representatives. But, given the (at least then) less politicized
character of Private International Law, and the very special character of the Hague
Conference, a constructive informality prevailed in which even a junior observer's
views could be heard.
This introduction to international law-making instilled into me three insights
which I have carried with me into practice. The first is the degree of inte~connection
between Private and Public International Law. Although there are many oft-cited
differences between the two disciplines, in my opinion the distinctions tend to be
over-stated. The resulting lack of interplay between those working in each field has
impoverished both subjects and in particular obscured examination of the interface
between them. The importance of this interface could be seen even in the discussions
at the Hague Conference on the Taking of Evidence Abroad, which had become
a flash-point for differing conceptions of permissible assertions of jurisdiction
and the extent to which cross-border process could be engaged for the public law
claims of foreign States. In my view, Private International Law (despite its comparative
diversity) was not to be seen as merely another domestic law subject, akin to contract
16 CAMPBELL McLACHLAN
or tort, but rather as a legal response to inherently international problems. In this way,
it shared much with Public International Law.
The second insight which I gained from that early observation of international
law-making is that International Law is not to be seen merely as an abstract body of
rules. It is, importantly, a means of resolving actual disputes as they arise on the
international plane. As such, an understanding of how the rules will operate in
practice as part of a process of dispute resolution can also help in the formulation of
new international law.
The third point is that International Law is not to be regarded as a static code. It
must be capable of creative change in response to new international realities. Amongst
other things, this includes a growing diversity of the contexts and fora in which
international law falls to be applied. Of particular importance then, and even more
so in practice today, was the development of mixed arbitration between corpor-
ations and states in the field of foreign investment law, where the governing law was
often Public International Law (or a hybrid of international law and a given
national law).
Upon entering private practice in 1988, I was fortunate to be able to pursue these
interests in the conduct oflive cases. I joined a practice group at Herbert Smith, which
was (and is) pre-eminent in handling cases on the interface between Public and
Private International Law. Founded by Dr FA Mann (who was active in the firm until
his death in 1991), and then headed by Lawrence Collins (editor of Dicey and Morris
on the Conflict of Laws), the group exemplified an approach which married the
academic and the practical without compromise to either.
The first case in which I was involved in practice was one of the cases on the effect
of President Reagan's Libyan assets freeze on bank deposits held in London (Libyan
Arab Foreign Bank v Manufacturers' Hanover Trust Co [1989] 1 Lloyd's Rep 608). It
involved issues of the extraterritoriality of laws and International Monetary Law,
approached, as one might expect of an English court, within the framework of a
conflict of laws analysis.
Since then I have been privileged to act on numerous matters involving the interests
of sovereign States in international litigation. Sometimes, as in Ex parte Pinochet
(No 3) [2000] 1 AC 147, in which we acted for the Republic of Chile, the cases involve
matters of the greatest possible international moment. More often, the cases, while of
no less importance to the client, arise out of the regular 'conduct of international
commerce. Recent examples include: an attempt by a foreign creditor of Cuba to
enforce its debt over the assets of the Central Bank of Cuba, raising issues of State
immunity and jurisdiction (Banca Carige SpA v Banco Nacional de Cuba & anor
[2001] 1 WLR 2039); parallel proceedings pursued by the International Fund for
Agricultural Development in connection with corruption in the procurement of
consultancy contracts in the International Labour Organization Administrative
Tribunal in Geneva and the English courts (Re Jazayeri); an international arbitral
claim intimated by a Western European investor against an African State concerning
the latter's alleged failure to protect the investor's right to operate an exclusive state
REFLECTIONS FROM THE PRACTICE OF INTERNATIONAL LITIGATION 17
lottery; acting for the United States Securities and Exchange Commission in the
recovery in the Isle of Man of the largest-ever sum alleged to be the proceeds of insider
trading secured outside the United States (Attorney-General for the Isle of Man v
Poyiadjis); and representing the Republic of South Africa in proceedings to recover
Clive of India's Gold, believed to have been taken from South African territorial
waters, and displayed for auction in London. These cases have all involved a mix of
Public and Private International Law issues.
We have also found in practice that Public International Law has moved into the
mainstream of the concerns of commercial clients. Perhaps the most notable aspect
of this has been the development of foreign investment protection through bilateral
investment treaties. These treaties typically give investors direct rights of action
against host States through arbitration, in the event that the fundamental rights
protected by International Law (including the protection from expropriation and
the right to full protection and security) are infringed. There has been a huge rise in
the number of such cases pursued in recent years, particularly before the International
Centre for the Settlement of Investment Disputes. Cases in which we are currently
acting have concerned investments as diverse as a water utility in Bolivia; a telecom-
munications business in West Africa; and oil and gas exploitation in a CIS State.
Even disputes which arise purely at the inter-State level, such as maritime boundary
disputes, often involve commercial interests as well, particularly as the impetus for
delimitation often comes from the need for certainty in natural resource allocation.
Thus oil companies in particular take a keen interest in the resolution of such matters.
They also seek advice on Public International Law generally as a means of providing
some protection from the vagaries of national legal systems and as a self-contained
solution for trans-boundary projects (such as pipelines).
From my experience of International Law in the context of disputes, I would
advance five short propositions about the changing nature of International Litigation,
especially as it affects sovereign States:
1. International litigation is increasing in frequency and scope
It has become almost a truism in recent years to observe that the volume of inter-
national litigation is increasing. We have moved in the space of little more than a
decade from a situation in which the absence of any comprehensive judicial system
was the first observation made by any undergraduate student of Public International
Law, to an unprecedented proliferation of tribunals and rising case-loads. Not only
does the International Court of Justice have a longer docket than ever in its history,
but there are also many more specialist courts and tribunals.
Of course, there have been many examples in the past of tribunals created to
address particular disputes, or batches of disputes. The Iran-US Claims Tribunal
and the United Nations Compensation Commission were innovative in many
respects. But they nevertheless still take their place in a history of specialist claims
commissions.
What is new is the number of institutionalized tribunals with broad competence
18 CAMPBELL McLACHLAN
and standing submission to jurisdiction by States: the International Tribunal for the
Law of the Sea, the Dispute Settlement Body of the World Trade Organization, and,
most recently, the International Criminal Court. These institutions have a standing
remit to apply international law within their particular area.
Perhaps less remarked upon, but of no lesser significance to States, has been the
increasing incidence of litigation involving sovereign States in national courts. Often
this involves States as defendants, as States' increasing activities in the international
commercial arena, and the reducing scope of State immunity, subject more and
more States to foreign litigation. However, some States have also become willing to use
foreign court processes to pursue their own remedies (as some of the examples which
I gave above illustrate).
2. The polycentric nature of modern disputes
The second point, itself a development from the first, is that many disputes are now
pursued simultaneously or consecutively in multiple fora. In Pinochet, there were
parallel proceedings in the United Kingdom and Spain; diplomatic representations
made by Chile to both the other States; and applications for interventions by third
interested States, including Belgium. Further, had Senator Pinochet himself not been
returned to Chile, the Republic of Chile had publicly announced its intention to refer
its dispute with Spain over the latter's assertion of jurisdiction to the International
Court of Justice.
This has led rapidly to the surfacing of a problem long encountered in Private
International Law, but until recently a rarity in Public International Law, namely
the potential for conflicting decisions. A recent dispute between the well-known
American entrepreneur Ron Lauder cind the Czech Republic over Mr Lauder's
investment in a Czech television channel led to the commencement of two parallel
arbitrations: one brought by Mr Lauder personally under the US/Czech BIT; and
one brought by his investment company under the Dutch/Czech BIT. Although both
tribunals considered identical facts and construed identical treaty language, they
arrived, within the space of ten days at diametrically opposed decisions on whether
the actions of the Czech Republic could constitute expropriation.
The absence of any developed rules of litispendence or res judicata in international
arbitration means that this situation is likely to continue. Indeed, in a recent decision,
the International Tribunal of the Law of the Sea decided that parallel proceedings
under no less than four treaties could continue in a dispute between Ireland and
the United Kingdom in relation to the operation of a nuclear reprocessing plant at
Sellafield (the Mox Plant case).
3. Modern international litigation is fact intensive
A third trait of mod~rn international litigation is that it is increasingly fact intensive.
Although the procedure of some international courts, including the International
Court of Justice, may not be well attuned to the assessment of contested facts,
the cases which come before the courts ,increasingly call for such procedures. Thus, a
REFLECTIONS FROM THE PRACTICE OF INTERNATIONAL LITIGATION 19
decisive tactical victory was obtained in the Qatar v Bahrain dispute, when Bahrain
called for and inspected documents relied upon by Qatar in support of its historical
arguments, and established them to be forgeries. In the Yugoslav Genocide case, the
parties had at one stage signalled an intention to call over a thousand witnesses of fact.
A court adjudicating upon any modern boundary dispute must generally consider a
welter of expert and factual evidence in reaching its determination. In the Saiga
litigation before the International Tribunal for the Law of the Sea, very effective use
was made of the power to cross-examine the Master and crew of the vessel.
4. Modern international litigation is urgent
Fourthly, much modern international litigation is dominated by the use of provisional
measures and other urgent pre-emptive remedies. The use of the provisional measures
jurisdiction in the International Court of Justice is starkly illustrated by the applica-
tion made by Paraguay in Breard to attempt to prevent (ultimately unsuccessfully as a
result of the contrary decision of the United States Supreme Court) the execution of
one of its nationals who had been sentenced to death in the United States.
More prosaically, more than half of the cases which have so far come before the
International Tribunal for the Law of the Sea have concerned applications for prompt
release of vessels. In contrast with the lengthy timetable which can obtain in litigation
on the merits, applications for provisional measures typically arise and are deter-
mined in a matter of a few short weeks. Yet, of their nature, decisions on provisional
measures often have a dramatic tactical effect on the ultimate outcome of the case.
5. Modern international litigation is unpredictable
Finally, many modern cases cannot be predicted by the States concerned. This
element of unpredictability has (at least) two aspects. The first is unpredictability of
commencement. In the classic case of an inter-State arbitration, for example over a
boundary dispute, the case itself will have been preceded by months, if not years, of
negotiation, and then by the conclusion of a compromis pursuant to which the
States concerned agreed to submit their dispute to arbitration. All the actors
involved would thus have plenty of time to consider the parameters of the dispute
and the implications of its submission to arbitration. However, many modern
forms of international dispute resolution are characterized by the State's standing
consent to arbitration by treaty which can thus be invoked at the election of the
claimant without prior warning. Bilateral Investment Treaties, the North American
Free Trade Agreement, and the Energy Charter Treaty all provide examples of this
trend.
The second aspect of unpredictability is as to result. It might be said that this is a
perennial aspect of any kind of litigation. But the results may be more acute where
States are involved. Pinochet provides a stark illustration of this, with the first decision
of a Judicial Committee of the House of Lords decided 3-2 against any form of
immunity for Senator Pinochet; and the second decision, by a differently constituted
Judicial Committee, deciding 4-1 in favour of the survival of a partial immunity.
20 CAMPBELL McLACHLAN
The Lauder v Czech Republic arbitrations provide another apposite example of
unpredictability.
What implications may be drawn from these trends for the development of Inter-
national Law more generally? The welter of new cases coming out of the renewed
enthusiasm of States for litigation will undoubtedly enrich the study of International
Law as a living code, by providing opportunities to test many previously unsettled
issues. At the same time, care must be taken to ensure that the proliferation of
international tribunals does not lead to fragmentation of the subject, as each tribunal
goes its own way in developing its jurisprudence.
That problem will become all the greater as International Law is taken up and
applied by a wide range of advocates and judges, both at national and international
levels. There is a danger (already evident in the decisions of some national courts
and arbitral tribunals) that a <licorice allsorts' approach may be taken to the sources
of international law, without the necessary evaluation of the relative weight to be
accorded to any particular source. This is of course an exercise of much greater
sophistication in Public International Law than is generally required in any national
legal system.
The rise in international litigation will inevitably impose considerable practical
burdens on States themselves. This burden falls especially heavily on Foreign Ministry
legal advisors, who generally have the day-to-day management of cases. Their role is
pivotal, since they stand at the fulcrum between the political and legal spheres. They
must ensure that any case is progressed consistently with the government's political
objectives, as well as defining the legal strategy, since any international litigation is
inevitably as much an expression of the foreign policy of the State as its diplomatic
representations. This role often imposes significant resource burdens on the Foreign
Ministry Legal Advisor's office-which must also respond to the numerous demands
for advice placed upon it by Ministers. It requires the ability to build and marshal an
effective legal team of both internal and external lawyers (and often specialist experts
as well) to drive the litigation forward.
But, despite these burdens, modern developments in International Litigation
should on the whole be welcomed. They represent an aspect of the maturing
(and professionalising) of International Law-from a partial body of principles
of intermittent application into a much more comprehensive set of rules, with wide
acceptation in numerous areas of international cooperation and interaction. The
existence of standing tribunals of wide and routine resort is but one element of this
more general response of International Law to the phenomenon of globalization. It
will also in itself contribute to one of the great goals of International Law: the pacific
settlement of disputes.
A PERSONAL PERSPECTIVE
ON INTERNATIONAL LAW
Ralph Zacklin
In the early 1960s, while a doctoral student at the Graduate Institute ofInternational
Studies in Geneva, I was recruited to work as a research assistant by the Carnegie
Endowment for International Peace. The project on which I worked for the next three
years was the Manual of Public International Law edited by Max S0rensen, Professor
of International and Constitutional Law at Aarhus University in Denmark, and pub-
lished by Macmillan in London and St Martin's Press in New York in· 1968.
The development of international law had been a major objective and concern of
the Carnegie Endowment when established in 1911, reflecting a turn of the century
conviction that the rule of law is as basic to a peaceful international community
as it is to a peaceful national society. This was the period between the Hague Peace
Conferences of 1899 and 1907 and the outbreak of war in 1914.
The decision to underwrite the publication of the Manual in 1963 coincided with
one of those cyclical upturns in interest in international law which recur from time
to time. The Trustees of the Carnegie Endowment, even though the development of
international law was a stated objective of their trust, were themselves not immune
from these cyclical trends.
The 1960s seemed to be the ideal time to return to the development of inter-
national law and the Carnegie Endowment believed that it had a particular niche to
fill. The Cold War seemed to be waning, or at least there were signs of a thaw in
relations between East and West, and the decolonization of Africa and Asia had
resulted in large numbers of new member States in the United Nations whose
presumed attachment to international law and international institutions was seen as
ushering in a new era of international law.
The idea underlying the S0rensen Manual was to capitalize on this perceived new
era by preparing and publishing a treatise on public international law written
from an international rather than a national perspective. The authors were to be from
different regions and different legal systems, representative of the new dispensation of
the community of nations: East-West, North-South .. While each contributor would be
assigned individual topics, the final edited text would represent the collective views of
22 RALPH ZACKLIN
the group as a whole. The Manual was successfully completed and published in 1968.
It was made available in a paperback edition for students world-wide. Within five
years the Carnegie Endowment changed course and abandoned its interest in inter-
national law and international institutions, surrendering its pre-eminent place among
foundations and NGOs in the field, and eventually moving its headquarters from
New York to Washington DC.
This recollection demonstrates both the strength and weakness of international law.
On the one hand there is its enduring appeal which draws governments, international
institutions, foundations, civil society, academies, and individuals time and again to
the notion of an international community under the rule of law; on the other hand
there is the widely held view among many segments of society that international law is
honoured more in its breach than its observance and especially when major national
interests are at stake.
I have been privileged to work for almost thirty years as an international lawyer in
the United Nations and from this vantage point international law is neither the
omnipotent solution to the world's problems nor is it an illusion that only die-hard
pacifists cling to. It is, in fact, for the practitioner a very real and pragmatic discipline.
That it may be uncertain, incomplete, and difficult to enforce does not lessen the need
for the rule of law on the international plane nor does it mean that the efforts to
codify the law and develop its institutions should cease or be diminished.
At the core of contemporary international law is the Charter of the United Nations.
It is a tribute to its drafters in the San Francisco Conference that this instrument has
retained its essential validity as a set of fundamental principles which have guided the
community of States for more than fifty years. It is the basis for the development of
much of international law as we know it today in such key areas as human rights, the
environment, and the law of the sea and outer space, not to mention the vast array of
multilateral treaties in numerous technical, economic, and scientific areas.
International law provides a common legal vocabulary within which States and
other actors operate. It provides a framework for conceptions of what is 'legal' or
'right'. For the author personally, the most striking lesson of the last thirty years is
not the quantitative qualitative development of international law which has been
substantial but the degree to which States have come to accept the existence of inter-
national law as a standard that must be observed or by which their actions must be
justified.
The debate taking place at the present time regarding the content of the rule of self-
defence as enshrined in Article 51 of the Charter is not, to my mind, a demonstration
of the irrelevance of the Charter. Rather, it is a demonstration that even the most
powerful state feels the need to justify its actions in law in order to secure inter-
national legitimacy.
There is another dimension to international law which is sometimes overlooked in
an era of globalization. International law, however inchoate it may be, represents the
expectations and claims of substantial segments of humanity. It cannot be dismissed
merely because of its perceived weakness. This dimension is of particular relevance to
A PERSONAL PERSPECTIVE ON INTERNATIONAL LAW 23
the member States of the United Nations, the overwhelming majority of whom rely
on international law-making processes in international forums to weave together the
fabric of the rule oflaw.
This accounts for the persistence of the United Nations in the holding of major
conferences or summits-much derided in some quarters-which have produced soft
law Declarations on the environment, human rights, advancement of women and
a panoply of economic and social rights. These fora move from agenda-setting
gradually towards normative outcomes and have undeniably altered the international
legal landscape over the past twenty-five years.
Law, whether domestic or international, is by nature a conservative discipline. Its
evolution is slow, even laborious. International law is not, nor should it be, viewed as
an ideal state in which harmony prevails. Like any other system of law, its rules and
institutions mature over time. When one compares the international law of today
with that of a mere three decades ago, one cannot but marvel at the advances that have
been made both normatively and institutionally. The path of advancement is by no
means uneventful but it continues.
I have been fortunate in my own career to have had the opportunity to contribute
to significant developments in international law, such as the establishment of ad hoc
criminal tribunals for Yugoslavia and Rwanda as well as, more recently, the Special
'Court in Sierra Leone. Over the years I have provided legal advice which has helped to
~ape much of the contemporary law of UN peace-keeping and, like many of my
colleagues, have rejoiced in the completion of UN mandates which have resulted in
the independence of countries such as Namibia and Timor-Leste. There have also
been tragic failures in Rwanda, Bosnia, and Somalia.
At the outset of my career I was motivated like many young people of the time
by an idealistic determination to make the world a safer and a better place. Over
the years my idealism has certainly been tested, but I believe that the role and impact
of international law has grown, and it continues to grow.
The present work to which I have been asked to contribute this short prefatory
reflection bears testimony to my conviction. In many ways it completes a professional
and intellectual circle that is as harmonious for me personally as is the ultimate
aspiration of international law itself.
I
..-1
 THE PERSPECTIVE OF A
FOREIGN MINISTRY LEGAL
ADVISER
Michael Wood

To spend nearly thirty-three years as a Legal Adviser in the Foreign and Common-
wealth Office may sound unadventurous. Yet the work is infinitely varied, often
exciting, and --.::i'nost of the time-enjoyable.
The first thing to' make clear is that the law of concern to a Foreign Ministry is by
no means exclusively public international law. Questions of domestic law, including
constitutional law, arise constantly, and not only over the domestic implementation
of treaty and other international obligations. In the case of the United Kingdom,
domestic law includes the law of the United Kingdom's overseas territories. European
Union law is a field of the highest importance, as is the law of the European Conven-
tion on Human Rights. Both are now largely incorporated into UK domestic law, but
have their origins in public international law.
A second important point is that, in areas in which they specialize-especially in
general questions of public international law-FCO Legal Advisers tend to give advice
and assistance to the whole of Government. This is an important aspect of the wider
'service' which the FCO offers to other Government Departments.
A third point is that, despite our title, FCO Legal Advisers are not confined to
giving advice. Much of our time is spent in negotiating, and most of that is done
abroad-at the United Nations in New York and Geneva, in Brussels, Strasbourg,
and elsewhere. I used to regard at least one trip to Paris a year as a given. I never tire
of visiting new places, whether it be a few days travelling around Svalbard (some-
thing of a highlight), or three weeks incarcerated at the Wright-Patterson Air Force
Base near Dayton, Ohio. A particularly agreeable part of the job is the number of
good friends one makes from all over the world: the Governmental 'regulars' on the
international legal network are a relatively small and close-knit group, who meet
frequently in different locations to resolve (or at least seek to resolve) a great variety
of issues.
A fourth and most important point is the role of a Foreign Ministry Legal Adviser.
· 26 MICHAEL WOOD
This is a subject which has been much discussed. For the present writer, Frank
Berman expressed it best:
What then is the role of the governmental legal adviser? In the writer's view the main role of
the Governmental legal adviser is to 'make' his Government comply with international law.
One must of course put the word 'make' in mental inverted commas. It would be a rare case
indeed if a Governmental legal adviser were in a position to compel the Government he
serves to act in one way or another. But it cannot by the same token be the limit of the
function of even someone whose role is that of 'adviser' simply to ascertain what the law is,
to explain it to the best of his ability to his client, and leave it at that. Of course, when it
comes to action the final decision may not be his. It is a truism to say that the question
whether or not to comply with what international law requires is always a question of policy.
But even the meanest definition of the role of the international law adviser in government
cannot treat that policy question as if it were an entirely neutral one. It must be assumed to
be a necessary part of the role that the international law adviser should be expected to use
his gifts of exposition and persuasion to bring those with whom the power of decision lies to
use this power to the right result (Berman, 2000, p 3).
Looking back these thirty-three years, what highlights do I see? A very selective list
would include the following:
- negotiating a number of terrorism conventions in the 1970s, including the
Internationally Protected Persons Convention (and its accompanying General
Assembly resolution) in the Sixth Committee, which was a tough introduction to
the legal politics of the United Nations at the time; and the 1978 European
Convention on the Suppression of Terrorism, which sought, without complete
success, to circumvent the political offence exception to extradition;
- negotiating over many years the United Nations Convention on the Law of the
Sea of 1982, especially its Part Xl on the Deep Sea Bed, an even more acute
exposure to UN legal politics in the era of the so-called 'New International
Economic Order', and involvement in setting up the International Seabed
Authority in Kingston, Jamaica;
involvement in the Rhodesia settlement, both at Lancaster House and with
Governor Soames in Salisbury (now Harare), when questions of public
international law were for the large part in the background but nevertheless
of considerable underlying importance;
acting as Agent before the European Court of Human Rights over a five-year
period, including in cases such as Soering,
close involvement in the Cambodia peace negotiations; the Two-plus-Four and
One-plus-Three negotiations on the reunification of Germany; the Dayton
Peace Agreement for Bosnia; and the failed negotiations at Rambouillet fora
corresponding Kosovo peace settlement;
- involvement, as Legal Adviser to the United Kingdom's Mission in New York, in
the drafting of the hundreds of resolutions and Presidential Statements adopted
THE PERSPECTIVE OF A FOREIGN MINISTRY LEGAL ADVISER 27
by the Security Council during the period 1991-4, including a number which
involved innovation and considerable subtlety, eg those concerning Lockerbie,
the former Yugoslavia, the Republic of Macedonia's admission to the United
Nations, the International Criminal Tribunals for the Former Yugoslavia and for
Rwanda;
acting as Agent in cases before the International Court of Justice (Lockerbie;
Legality of Use of Force) and in inter-State arbitrations (the OSPAR and UNCLOS
arbitrations over Sellafield);
advising on questions concerning the use of force, including Kosovo in 1998,
Afghanistan in 2001, and Iraq in 2002-3;
handling longer-term developments in international law, including the work of
the International Law Commission and the Sixth Committee on matters such as
State responsibility and State immunity.
Most of the above issues come to mind because they involved a great deal of
work, over an extended period. Other important issues may have to be dealt with
very quickly, or appear essentially as critical points in greater developments. Recent
examples include aspects of the International Criminal Court (the negotiations
leading to the adoption of Security Council Resolution 1422 (2002), questions con-
cerning Article 98(2) agreements, the election of the judges). And much that has to
be done may be seen as 'damage limitation': sitting firmly on silly ideas or, as it was
termed in New York, giving a 'decent burial' to items on the Sixth Committee's
agenda that were going nowhere.
My main impression, looking back over thirty-three years, is of the huge increase in
the quantity and complexity of public international law issues that have to be dealt
with by Government, and their increasing political and public interest. Over the last
five years alone, we have seen the British media covering international law issues,
day after day for weeks on end, such as the immunity of a former Head of State
(Pinochet), the rights and wrongs of the United States' position on the International
Criminal Court (during the evolution of Security Council Resolution 1422 in June-
July 2002), and-as I write-the legal necessity or not of a 'second' resolution before
force may be used to disarm Saddam Hussein. The number of lawyers in the FCO has
scarcely increased over this period, with the result that they are under far greater
pressure than in 1970 when I first joined the Office.
One result of this pressure, which I personally greatly regret, is that it becomes
increasingly difficult to find the time to write articles or books. In earlier times, FCO
Legal Advisers appeared to have the time to contribute far more to academic debate
than they do now, at least in writing. This is unfortunate, since the publication of
books and articles often adds to the personal satisfaction that one derives from the
job; moreover, those involved in negotiations, and involved in the practical day-to-day
application of public international law, are well placed to shed a special light on
developments.
28 MICHAEL WOOD

'International law is what other countries break'. So say the cynics. It may be
thought that the 'invisible college of international lawyers' is largely composed of.
idealists, not cynics. But for my money, what is really needed is an underlying idealism PART I
combined with a very healthy dose of realism .. Perhaps the two greatest achievements.
()f international law over the last century are, first, the restrictions on the use of forc~
embodied in the Pact of Paris and then in the United Nations Charter; and, secondly,
the development of human rights and humanitarian law and their enforcement. THE HISTORY AND
Both these developments are currently under severe challenge. It is, indeed, the best
of times and the worst of times to be a Foreign Ministry Legal Adviser. Whatever else
it is, life is not dull. THEORY OF
INTERNATIONAL LAW
REFERENCE
BERMAN, SIR FRANKLIN (2000), 'The Role (ed.), The International Lawyer as Prac-
of the International Lawyer in the Making titioner (London: British Institute of
of Foreign Policy' in Wickremasinghe, C International and Comparative Law), p 3.
 1
A SHORT HISTORY OF
INTERNATIONAL LAW
Stephen C Neff

SUMMARY

This history will emphasize broad trends in international law, in both the conceptual
sphere and in State practice. The discussion will move chronologically, beginning with a
cursory look at the ancient world, followed by a rather fuller discussion ofthe great age of
natural law in the European Middle Ages. The classical period (1600-1815) witnessed
the emergence of a dualistic view of international law, with the law of nature and the law
of nations co-existing (more or less peacefully). For the nineteenth century, the least
known part of international law, the existence of three distinct traditions will be noted-
but with one of them (the positivist one) so dominant as nearly to efface the other two.
Regarding the inter-war period, developments both inside and outside the League of
Nations will be considered. Since the post-1945 period will occupy most ofthe remainder
of this book, this discussion will confine itself to a few historically-oriented comments on
some of its most general features.

I. INTRODUCTION

No area of international law has been so little explored by scholars as the history
of the subject. This is a remarkable state of affairs, probably without parallel in
any other discipline (including other branches of law). This intellectual scandal,
as it well deserves to be called, has only recently begun to be remedied. As we
are still only in the earliest stages of the serious study of international legal history,
many blank spots exist, some of which will be identified in passing in the discussion
below.
This short history-inevitably very short history-can give no more than a flavour
of the major periods of development of international law. Nor will it be possible
to give more than the most token attention to developments outside the Western
32 STEPHEN C NEFF
mainstream. Both ideas and practice will be covered. The ideas chiefly concern what
international law was thought to consist of in past times. State practice is concerned
with what states actually did. It was the two in combination-if not always in close
harmony-that made international law what it became.
II. ANCIENT WORLDS
For a vivid indication of how persons from even the most diverse cultures can
relate to one another in a peaceful, predictable, and mutually beneficial fashion, it is
difficult to top Herodotus's description of 'silent trading' between the Carthaginians
and an unnamed North African tribe in about the sixth century Be. When the
Carthaginians arrived in the tribe's area by ship, they would unload a pile of goods
from their vessels, leave them on the beach and then return to their boats and send -
a smoke signal. The natives would then come and inspect the goods on their own,
leave a pile of gold, and retire. Then the Carthaginians would return; and, if satisfied
that the gold represented a fair price, they would take it and depart. If not satisfied,
they would again retire to their ships; and the natives would return to leave more
gold. The process would continue until both sides were satisfied, at which the point
the Carthaginians would sail away with their gold, without a word exchanged between
the two groups. 'There is perfect honesty on both sides', Herotodus assures us, with no
problems of theft or conflict (Herodotus, Histories, p 336).
This silent trading arrangement may have been successful in its way, but a process
of interaction so inflexibly ritualistic and so narrow in subject matter could hardly
suffice for political interactions between States, even in ancient times. Most people
probably have the feeling that something rather more elaborate is required to merit
the grand name of 'international law'. Indeed, the ambiguity of the term 'inter-
national law' leads to various different answers to the question of when international
law 'began'. If by 'international law' is meant merely the ensemble of methods or
devices which give an element of predictability to international relations (as in the
silent-trading illustration), then the origin may be placed virtually as far back as
recorded history itself. Ifby 'international law' is meant a more or less comprehensive
substantive code of conduct applying to nations, then the late classical period and
Middle Ages was the time of its birth. If 'international law' is taken to mean a set
of substantive principles applying uniquely to States as such, then the seventeenth
century would be the starting time. If 'international law' is defined as the integration
of the world at large into something like a single community under a rule oflaw, then
the nineteenth century would be the earliest date (perhaps a trifle optimistically). If
'international law' is understood to mean the enactments and judicial decisions of
a world government, then its birth lies (if at all) somewhere in the future-and, in all
likelihood, the distant future at that.
If we take the most restricted of these definitions, then we could expect to find the
A SHORT HISTORY OF INTERNATIONAL LAW 33
most evidence for a nascent international law in the three areas of ancient Eurasia that
were characterized by dense networks of small, independent States sharing a more
or less common religious and cultural value system: Mesopotamia (by, say, the fourth
or third millennium BC), northern India (in the Vedic period after about 1600 BC),
and classical Greece. From each of these three State systems, characterized by a blend
of political fragmentation and cultural unity, a number of fairly standard practices
emerged, which helped to place inter-State relations on at least a somewhat stable
and predictable footing. This was true in three areas especially: diplomatic relations,
treaty-making, and the conduct of war. l A major additional contribution of the Greek
city-States was the practice of arbitration of disputes, of which there came to be a very
impressive body of practice (Ager, 1996). Nor was it inordinately difficult for some of
these practices to extend across deeper cultural lines as well. One of the earliest
surviving treaty texts is between Egypt and the Hittite Empire; from the thirteenth
century BC, which concerned an imperial division of spheres of influence, but which
also dealt with extradition of fugitives. The problem of good faith and binding force
was ensured by enlisting the gods of both nations (two thousand strong in all) to act
as guardians (Bederman, 2001, pp 147-150).
With the advent of the great universal religions, far more broadly-based systems of
world order became possible. One outstanding example was the Islamic empire of the
seventh century AD and afterwards. Significantly, the body of law on relations
between States within the Muslim world (the Dar aI-Islam, or 'House ofIslam') was
much richer than that regarding relations with the outside world (the Dar al-Harb, or
'House of war'). But even with infidel States and nationals, a number of pragmatic
devices evolved to permit relations to occur in predictable ways-such as 'temporary'
truces (in lieu of treaties) or safe-conducts issued to individuals (sometimes on a very
large scale).2
In Western history, the supreme exemplar of the multinational empire was Rome.
But the Roman Empire was, in its formative period, a somewhat tentative and
ramshackle affair, without an over-arching ethical or religious basis comparable to the
Islamic religion in the later Arab empire. That began to change, however, when certain
philosophical concepts were imported from Greece (from about the second century
BC). The most important of these was the idea of a set of universal principles of
justice: the belief -that, amidst the welter of varying laws of different States, certain
substantive rules of conduct were present in all human societies. This idea first
surfaced in the writings of Aristotle (Rhetoric, p 1370). But it was taken much further
by the philosophers of the Stoic school, who envisaged the entire world as a single
'world city-State' (or kosmopolis) governed by the law of nature. Cicero, writing under
Stoic influence, characterized this law of nature as being 'spread through the whole
human community, unchanging and eternal' (Cicero, Republic, pp68--69).
I On the Middle Eastern and Greek practice, see generally Bederman, 2001. On ancient India, see Bhatia,
1977.
2 On Islamic views of international law, see generally Khadduri, 1955.
34 STEPHEN C NEFF
This concept of a universal and eternal natural law was later adopted by two other
groups, the Roman lawyers and the Christian Church, and then bequeathed by them
to medieval Europe. The lawyers in particular made a distinction that would have a
very long life ahead of it: between a jus naturale (or natural law properly speaking)
and a jus gentium (or law of peoples). The two were distinct, but at the same time
so closely interconnected that the differences between them were often very easily
ignored. Natural law was the broader concept. It was something like what we would
now call a body of scientific laws, applicable not just to human beings but to the
whole animal kingdom as well. The jus gentium was the human component, or
sub-category, of it. Just as the law of nature was universal in the natural world, so was
the jus gentium universal in the human world.
III. THE MIDDLE AGES: THE NATURAL LAW ERA
The European Middle Ages became the great age of natural-law thought. During this
period, natural-law ideas developed under the umbrella of the Catholic Church. But it
must be remembered that natural law was not specifically Christian in its inception,
but rather was a legacy of the classical Stoic and Roman legal traditions. It is true that
there was a line of medieval (and, later, Protestant) thought known as (voluntarism',
which held natural law to be a pronouncement or command by God, with the con-
tents discoverable by humans by way of revelation. But the dominant school of
thought-represented outstandingly by Thomas Aquinas-was the rationalist (some-
times called the intellectualist) one, which held the content of the natural law to be
susceptible of discovery and application by means of human reason rather than
revelation. 3
Natural law is one of the many parts of international law that has never received
the systematic study that it merits. Moreover, many of its ideas were deeply foreign to
our present ways of thinking. In the present context, only a few of the most salient
points can be noted. 4 Perhaps the single most outstanding feature of medieval natural
law was its all-embracing character. It encompassed and regulated the natural and
social life of the universe in all its infinite variety-from the movements of the stars in
their courses to the gurgling of the four humours through the veins and arteries of the
human body, from the thoughts and deeds of all of the creatures of land, sea, and air,
to those of human beings and the angels in the heavens. At the same time, however,
amidst this kaleidoscopic variety, natural law was, ultimately and fundamentally,
monistic in character, in that it was based on a single grand coherent plan for the
universe at large. Moreover, it was seen to be deductive in nature-ie, based on a very
small number of basic principles froIl:?- which, in theory, all the infinite detail of the
3 On the voluntarist and rationalist traditions in natural-law thought, see Schneewind, 1998, pp 17-36.
4 For a good short account of medieval natural-law theory, see generally Gierke, 1937.
A SHORT HISTORY OF INTERNATIONAL LAW 35
universe could be derived (although not until long after the Middle Ages would
serious attempts actually be made to achieve this feat).
Medieval natural law was also broadly teleological in nature, particularly so with
the growth in influence of the Aristotelian outlook after the twelfth century. By this
is meant that the universe-comprising both the social and the natur,al worlds-was
held to be organized according to a (literally) universal grand plan. And that plan and
purpose infused and animated the entire universe, both natural and social. Law, as an
integral part of this grand master plan, had a purpose: to move society ever further in
the direction indicated by reason and the law of nature. In short, medieval man-
indeed, the whole medieval universe-was imbued with a strong sense of mission.
I There continued to be, as in the ancient period, a distinction between the jus
naturale and the jus gentium, still without any very sharp line between the two. The jus
gentium was very much the lesser of the two, being seen largely as an application of
the natural law to human government. These jus gentium rules were sometimes
referred to as (secondary' natural-law rules. It must be stressed that this original jus
gentium did not consist entirely, or even primarily, of what would now be called rules
of international law. Instead, it was a collection of laws common to all nations,
affecting individuals of all stations, from the highest to the lowest and dealing with all
walks of life-contract, property, crime, and the like. It was more in the nature of
what we would now call an ethical system, setting out general norms of conduct, than
of a legal code, listing prohibitions and punishments.
In the grander scheme of natural law, there was no strong tendency to think that
any body of law existed that was applicable uniquely to international relations as such.
This point was most apparent in the development of one of the most notable products
of medieval natural-law thought: ideas about the lawful resort to force (or about (just
wars', in the common medieval expressioII). Just-war ideas first emerged in debates
over an issue of personal conduct-whether practising Christians could lawfully
perform military service, which involved violence and killing, contrary (apparently)
to the express commands of scripture. It was held that such service was permissible,
so long as it arose from noble and disinterested motives: from the desire to protect
the community against oppressors, rather than for personal glory or gain or (worst
of all) for love of violence for its own sake. This basic idea was then extrapolated,
with very little change, to the inter-State level, so that States, like private persons, were
permitted lawfully to wage war for such purposes as the punishment of wickedness
or, generally, for the enforcement of the law-but not for vainglory or conquest or
oppression. 5
The description of medieval natural law as rationalist in character is, in some ways,·
all too accurate. It was much more the subject of debate amongst educated theorists,
in a theological milieu, than it was a living law in the everyday world. As a result, many
of the more practical issues-especially those relating to war-were treated by secular
writers rather than by theologians. For example, Bartolo of Sassoferrato, the famous
5 For an outstanding exposition of medieval just-war theory, see Russell, 1975.
 STEPHEN C NEFF
Italian lawyer of the fourteenth century, wrote a treatise on reprisals, a subject of
practical importance to merchants suffering injuries at the hands of foreign States. At
about the same time, rules on the conduct of war ('the law of arms', as it was known)
were expounded by John of Legnano and later by a monk named Honore de Bonet
(or Bouvet), whose book entitled The Tree of Battles, of the 1380s, became very
influential. 6 Accounts of medieval warfare led to grave doubts, however, whether even
these practical rules exerted much real influence.
Only in the late Middle Ages did international law begin to be applied regularly to
immediate political and military issues. Rules on the acquisition of territory became
highly relevant with the European explorations of Africa and, particularly, the New
World from the fourteenth century onward.· In the sixteenth century, the Spanish
conquest of the Indian kingdoms in the New World sparked vigorous debates (if only
after the fact). The Dominican scholar Francisco de Vitoria, in a series of lectures at
the University of Salamanca, concluded that the Spanish conquest was justified, on
the ground that the Indians had unlawfully attempted to exclude Spanish traders from
their kingdoms, contrary to natural-law rules. But he also confessed that his blood
froze in his veins at the thought of the terrible atrocities committed by the Spanish in
the process. 7 At the end of the century, the Italian writer Alberico Gentili, who was a
practising lawyer as well as a university scholar, produced the first truly systematic
study of the law of war, bringing classical just-war thought to bear on a broad range
of concrete questions arising from the actual practice of war. 8
Much of the State practice in the Middle Ages consisted of traditional ways
inherited from ancient times. The area of diplomatic relations is an example, with
diplomats increasingly being accorded a broad (but not absolute) degree of immunity
from judicial process in host States. Law was also being used to facilitate a different
sort of 'commerce' between peoples: foreign trade by private merchants, often with
the Muslim States, which were more advanced economically for much of this period
than the European States were. Many of the financial practices associated with inter-
national trading, such as bills of exchange (which were probably of Muslim origin)
found a wide use within the peripatetic medieval merchant community. Beginning
in about the eleventh century, European (chiefly Italian) States began to conclude
bilateral treaties that spelled out various reciprocal guarantees of fair treatment. These
agreements, sometimes concluded with Muslim States, granted a range of privileges to
the foreign merchants based in the contracting States, such as the right to use their
own law and courts when dealing with one another. The same process was at work in
the sphere of maritime trading. The seafaring community made use of the laws of
Oleron (which were actually a series of court decisions from the small island of that
name in the Bay of Biscay), and also of a code of rules called the Consolato del Mare,
6 On medieval law on the conduct of war, see Keen, 1965.
7 Vitoria, 'On the American Indians', in Political Writings, pp 231-292; Letter to Miguel de Arcos, ibid,
pp 331-333.
8 On Gentili, see generally Van der Molen, 1968.
A SHORT HISTORY OF INTERNATIONAL LAW 37
compiled in about the thirteenth century for the maritime community of Barcelona.
These codes governed the broad range of maritime activities, including the earliest
rules on the rights of neutral traders in wartime.
In short, medieval international law was a jumble of different beliefs and prac-
tices-from the rarefied conceptions of the law of nature, to the more serviceable
rules by which various communities conducted their actual day-to-day business, from
warfare and diplomacy, to buying and selling.
IV. THE CLASSICAL AGE (1600-1815)
In the seventeenth and eighteenth centuries, a new spirit entered into doctrinal
thought on international law. Its principal harbinger was the Dutch writer Hugo
Grotius, whose major work On the Law of War and Peace was published in Paris in
162S-a work so dense and rich that one could easily spend a lifetime studying it (as a
number of scholars have).9 Grotius has often been credited with the 'secularization'
of natural-law thought, partly on the basis of the celebrated statement in the prologue
of his book, that the law of nature would be the same even if God did not exist.
In reality, this was merely an announcement of his adherence to the rationalist (or
intellectualist) tradition of natural law, inherited from medieval Catholic thought,
as distinct from the voluntarist philosophy, which had become the dominant view
of Protestantism. Nor was Grotius very modern in his style. He carefully avoided
references to current or recent political events wherever possible, thereby sharply
limiting the practical utility of his book. Instead, he risked burying his hapless readers
beneath an avalanche of illustrative examples, promiscuously culled from classical and
Biblical writings.
The most crucial contribution of Grotius was his emphasis on the law of nations
(the jus gentium) as a body of law distinct from the law of nature properly speaking,
and not merely as a component or sub-set of it, as had been previously the case.
Furthermore, this body of law was no longer seen, as in the Middle Ages, as the
application of natural law to human affairs. Instead, the practice of States was now
seen as a distinct source oflaw in its own right. The law of nations, in Grotius's words,
was the 'law which has received its obligatory force from the will of all nations, or of
many nations' (Grotius, War and Peace, p 44). This human-made law of nations later
came to be commonly labelled the 'voluntary' law of nations (a term that will be used
henceforth in this discussion).lo One of the most distinctive features of this voluntary
law, to Grotius, was that it only purported to regulate the external conduct of rulers
9 Much of the study of Grotius has been by political scientists rather than specifically by international
lawyers. Remarkably, there is no comprehensive and accessible survey of his international legal thought and
influence in English. For an older work that is still of value, see Knight, 1925. For a brief overview of his legal
thought, see Tuck, 1999, pp 78-108. For a more thorough study, see Haggenmacher, 1983.
10 Gottfried von Leibnitz may have been the first to use this particular expression.
 STEPHEN C NEFF
and States. It did not concern itself, as the natural law did, with inward dispositions or
states of mind.
Other forces were at work in this period, helping to create a law of nations in the full
sense of the word. It was only now that nation-States were coming to be seen as
permanently existing, corporate entities in their own right, separate from the rulers
who governed them at any given time. The most concrete sign of this development
was the fact that it became commonly accepted in this period that treaties were
binding on the State as such, not merely on the particular rulers who concluded them.
During this period, too, States began to build up permanent government bureaucra-
cies, whose task was to regulate and monitor the activities of the nation as a whole, in
the general national interest. There was even, in Germany, an academic science of
statecraft, known as 'cameralism'. Parallel with this emergence of States as distinct
and permanent entities with their own legal 'personality' (as lawyers put it) was the
idea that these entities should be governed by a distinct set of laws uniquely suited to
them alone-in short, by a law of nations, which would be distinct from the general
ethical principles laid down by the classical natural law.
This law of nations-in this newer sense of the term-would consist of a set of
rules governing the relations between nation-States as such. In the late eighteenth
century, it would even receive the new label of 'international law' at the hands of
Jeremy Bentham (Nussbaum, 1947, pp 135-136). Since the subject matter of this law
would be the relations between States, it necessarily left States free to determine
internal matters for themselves. In other words, there now emerged a distinction,
which gradually became sharper over time, between international matters and
domestic matters. The Peace of Westphalia of 1648, ending the Thirty Years War,
illustrated this new outlook in action, by expressly placing religious matters in the
sphere of domestic activities.
It should not be thought, however, that natural law was discarded in anything like
an abrupt fashion in this period. In fact, the seventeenth and eighteenth centuries
were the great age of systematic jurisprudence, in which natural law was re-housed (it
might be said) in grand logical edifices of a hypothetico-deductive nature, modelled
on that most magnificent of all intellectual constructions, mathematics. The names
of Thomas Hobbes, Baruch Spinoza, and Gottfried von Leibnitz come readily to mind
in this regard. (Grotius himself had advanced this ideal of organizing natural law into
a mathematical-style deductive order, but he made no real progress in that direction.)
Amongst the most prominent in this rationalist tradition was the German writer
Samuel Pufendorf, whose major work on The Law of Nature an.d Nations was written
in 1672. (Pufendorf, incidentally, held one of the first academic chairs in 'the law of
nature and nations' at the University of Heidelberg in the 1660s.)11 The culmination
of this systematic natural-law movement came in the mid-eighteenth century, at the
hands of the German philosopher Christian Wolff, who fittingly had been trained as a
mathematician. Wolff's massive eight-volume encyclopaedia of natural law contained
II On Pufendorf, see Dufour, 1991 and Tuck, 1999, pp 140-165.
A SHORT HISTORY OF INTERNATIONAL LAW 39
detailed discussions of practically everything under the sun and beyond (including
a discourse on the characteristics of inhabitants of other planets)-while paying
virtually no heed to State practice. It holds an honourable place on the list of the
world's great unreadable and unread masterpieces. 12
These two kinds of law-the law of nature (properly speaking) and the law
nations-coexisted in a complex, and somewhat untidy, way. From their interplay
arose a modern law of nations that was rooted in State practice as well as in grand
theory. In principle, the law of nature was recognized as superior to the voluntary law.
Only where the law of nature was unable, for one reason or another, to provide an
effective guide to State conduct could the voluntary law of nations be brought in to fill
the gap. The voluntary law, in other words, was seen as interstitial in nature rather
than comprehensive, as the natural law supposedly was.
The dualistic character of the law in this period-and the increasing role of the
voluntary component of it-was nowhere more evident than in the writing of
the Swiss diplomat Emmerich de Vattel. His famous exposition of The Law of Nations,
published in London in 1758, was to international law what the near-contemporary
Commentaries of Blackstone were to English law. The first systematic international-
law treatise of the modern kind, it would not look drastically out of place on a
twenty-first-century bookshelf, as the works of Grotius or Wolff certainly would.
Instead of setting out a grand philosophical scheme, the book was designed as a sort
of handbook for lawyers and statesmen, full of practical applications of the law as well
as illustrations from recent practice. Moreover, its graceful style ensured it a wider
usage by lawyers, judges, and lay persons than any other international writing had
previously had. It can make a good claim to being the greatest international-law
textbook ever written. With it, we stand at the threshold of modern international law.
In a number of ways, Vattel's treatise was a popularization of Wolff's ideas, but it
was really written in a very different spirit. 13 Where Wolff had been disdainful of the
voluntary law, Vattel fully embraced it, cheerfully and candidly expounding it along-
side the natural law whenever appropriate. He has been accused of inconsistency-of
constantly being on both sides of issues-but that charge is unfair. The fact is that he
had two bodies of law to expound, which sometimes provided differing solutions
to practical problems. He was generally very forthright about which law he was
expounding at any given time. It is we who tend to misunderstand the nature of his
task because the dualistic approach of that era is so foreign to us.
The best example of the dualistic 'method' in practice concerned war. The natural
law on just wars allowed a State to resort to force in self-help to vindicate a legal right
that had actually been violated (or was threatened with violation) -so that, in a given
conflict, one side would be fighting justly, and the other one not. The voluntary law,
however, was not concerned over which party had the stronger legal claim to use force
12 On Wolff's cosmological views, see Wolff, Cosmologia. Only the final volume of the main work on
natural law concerned international law. For an English translation of that final volume, see Wolff, Law of
Nations Treated According to a Scientific Method.
13 For Vattel's full presentation of the views of Wolff, see Vattel, Questions.
40 STEPHEN C NEFF
(ie, it did not deal with the jus ad bellum, in legal terminology). Instead, it simply
treated each side as if it had lawfully resorted to war. It then contented itself with
regulating the conduct of wars, fixing rules for both parties to apply, on an even-
handed basis, in their contention against one another (the jus in bello, in the common
legal parlance). In effect, then, the natural law saw war in terms of law enforcement
and as a sanction for wrongdoing. The voluntary law, in contrast, saw war more in
terms of a duel.
In other areas, the two bodies oflaw reinforced one another. A good illustration was
the sphere of economic relations. In the natural law, there had been support for a
general principle of freedom of trade. But in the seventeenth century, European
States began to give substance to that principle by building up an increasingly dense
network of bilateral treaties of friendship, commerce, and navigation ('FCN treaties',
in common legal shorthand). Although there were inevitable variations in detail, there
was also a high degree of standardization. Typically, the treaties would guarantee non-
discriminatory treatment of merchants from each State settling in the other. Also, in
the event of war between the two States ('which God forbid!' in the common phrase),
a period of grace would be given to the merchants to sort out their affairs before
departing. These treaties also laid the ground of the law of neutrality by specifying the
rights and duties that neutral merchants would have during war.
Because of the ever-growing importance of the voluntary law, it is well to say a bit
more about it. It had, in general, a practical and utilitarian character, even if it
involved some neglect of the eternal verities championed by the strict natural lawyers.
The voluntary-law outlook also gave to international law, for the first time, a dynamic
flavour, in the form of a concern with the making of new law, rather than of simply
determining what the natural law-in its eternal but static majesty-was. Finally,
it should be noted that this voluntary law was made in two different ways. One was by
means of treaties. The other was by way of custom, or 'usage' as it was often called.
Both of these, however, posed certain conceptual difficulties.
Consider treaty law first (or 'conventional international law' in the rather awkward,
but common, phrase). That treaties were binding on parties in the ordinary case no
one doubted. There was doubt, however, whether treaties could be said to be binding
in extreme situations in which a State's most vital interests (such as survival) would be
threatened by adherence. Pufendorf thought not. To Pufendorf (as well as to Wolff
and Vattel), a State's highest obligation was its natural-law 'duty to itself' (in the
common phrase of the time)-ie, the duty of self-preservation. This overriding
doctrine of necessity (as it came to be known later) would inevitably introduce a
certain inherent instability into treaty relations.
The conceptual problem with custom was somewhat greater-and cannot be said
to have been resolved even today. In the Middle Ages, some (like Aquinas) saw custom
as a form of legislation-of legislation by and for the whole community at large,
brought about through day-to-day practice. Others, however, preferred to see custom
as a sort of private agreement, or wide-ranging contract, amongst ordinary
people. This 'contractual' view of custom tended to dominate international law in the
A SHORT HISTORY OF INTERNATIONAL LAW 41
seventeenth and eighteenth centuries. A custom was seen as a 'tacit treaty', so that a
customary practice would have the force of law for those States which habitually
followed it (ie, which were parties to the tacit agreement) but not for other States.
These, and other, uncertainties at the heart of customary law have continued to
plague-or to enrich - international law to the present day.14
v. THE NINETEENTH CENTURY (1815-1919)
The nineteenth century, extraordinarily, is the least explored area of the history of
international law. It might be said that three rival traditions co-existed uneasily in that
period. For lack of any standard or accepted terminology in this area, we may label
them the positivist tradition, the natural-law remnant, and the historicist (or p.erhaps
romantic) tendency. The dominant tradition of these three, by a very wide margin,
was the positivist one, which :will therefore claim the greater part of our attention. The
historicist strand has been the least explored..
A. THE POSITIVIST TRADITION
By 'positivism' is meant such a wealth of things that it may be best to avoid using the
term altogether. As originally coined in the 1830s by the French social philosopher
Auguste Comte, it meant something like 'scientific' or 'objective' or 'empirical',
in contrast to speculative or religious or hypothetico-deductive modes of thought.
Comte posited that the human race had gone through three great historical stages: the
theological, the metaphysical, and (now) the 'positive'. In the theological stage,
religious ideas had been dominant. In the metaphysical stage, legalistic and juris-
prudential ideas had prevailed-meaning, in essence, natural law. But the 'positive'
era now dawning promised to bring the true and final liberation of the human mind
from the superstitions and dogmas of the past.
This positivist age would be a scientific one, based on rigorous, disinterested
study of objective, ascertainable facts. These would be harnessed for the planned
and systematic improvement of the lot of the human species. The old ecclesiastical,
feudal, military, and legal elites would be displaced, in favour of a new ruling class
of engineers, financiers, inventors, and social planners. Positivism, in this original
Comtean sense, became a strange amalgam of technocracy and evangelism. Indeed,
positivism actually did become a religion, with the most influence, as it happens,
in Brazil (whose national flag is emblazoned with the positivist motto 'Order and
Progress').
In the more mundane legal sphere, perhaps the principal manifestation of
positivism was the belief that law is entirely a human institution. In the realm of
14 See Ch 4 below.
42 STEPHEN C NEFF
international law specifically, this meant that positivism was the clear heir to the
voluntary law of the seventeenth and eighteenth centuries. In recognition of this fact,
legal scholars in the nineteenth century conferred onto Grotius the retrospective title
of 'father of international law' (with some assiduous, and patriotic, lobbying from
Dutch lawyers in particular). But there was a clear difference in spirit between the
earlier voluntary law and this new positivism. The voluntary law had been applied
faute de mieux, hesitantly, almost apologetically, in cases in which, for various reasons,
the natural law could not readily be applied. Nineteenth-century positivism was
much more doctrinaire. It applied the voluntary law as a point of high principle
rather than merely as an expedient, to the point that the voluntary law came to be
regarded as the only true source oflaw. As the World Court would later put it, '[t]he
rules of law binding upon States ... emanate from their own free will'. IS From this
outlook emerged the common saying, that international law was a law between States,
rather than a law above States (as in the natural-law vision).
Certain other aspects of the positivist outlook should be noted. One was the
insistence on the independent nation-State as the fundamental unit of international
law. This inevitably gave to positivism a strongly pluralistic cast. Each nation-State
possessed its own distinctive set of national interests, which it was striving to achieve
in an inherently competitive, even hostile, environment. Each State was sovereign
within its territory, so that each State's law could reflect that State's own particular
history, values, aspirations, traditions, and so forth. It was in this period that the
principle of 'the sovereign equality of States' became the fundamental cornerstone-
or even the central dogma-of international law, along with the concomitant rule
of non-intervention of States into the internal affairs of one another. This naturally
pluralistic outlook of positivism was greatly reinforced by the huge influx of new
States into the international community during the nineteenth century, most
conspicuously from Latin America and Eastern Europe but also from the Far East
(Bull and Watson, 1984).
This pluralistic mentality in turn meant the abandonment of the monistic and
teleological view of medieval natural law, which was now replaced by an instrumen-
talist outlook. That is to say, the law was no longer seen as having any innate goal of
its own, any intrinsic master plan. Instead, the law was now seen, in technocratic
terms, as a tool for the attainment of goals which were decided on by political pro-
cesses. Law, in short, was now a servant and not a master. With this technocratic and
instrumentalist outlook, international lawyers in the nineteenth century became
increasingly reluctant to trespass into areas of political controversy, in marked con-
trast to their natural-law forbears, who had proudly worn the mantle of social critics.
International lawyers began to see themselves instead as the juridical counterparts of
Comte's engineers. This positivist ethos brought a new sense of precision, a business-
like character to the study and practice oflaw that was a welcome contrast to some of
the cloudier musings of natural lawyers. No longer was there concern, as with Wolff,
15 'Lotus', Judgment No 9, 1927, PClJ, Ser A, No 10.
A SHORT HISTORY OF INTERNATIONAL LAW 43
over the characteristics of beings on other planets. There was much work to be done
here on Earth.
The instrumentalist approach gave to positivism a certain moral ambivalence. If
the law was a servant, then it could serve evil masters as readily as benevolent ones.
The law could be put to work, for example, in the elimination of slavery and slave
trading, as in the General Act of the Brussels Conference of 1890, which established an
International Maritime Office (at Zanzibar) to act against slave trading. But the law
could also be enlisted to fix the 'rules of the game' for the imperial partitioning of
Africa, as at the Berlin Conference of 1884-85. (Contrary to the belief of some, that
conference did not actually allocate any territories; it established the criteria by which
the powers would recognize one another's claims.)
Another effect of the technocratic cast of positivism was that questions of high
politics were off limits to lawyers, in principle as well as in practice. In particular, it
came to be widely agreed that fundamental national-security interests were in the
realm of politics and not of law. This meant, in turn, that the rights and wrongs of a
State's decision to resort to war (the jus ad bellum) were not a subject for lawyers to
deal with. Instead, war was now seen as an inevitable and permanent feature of the
inter-State system, in the way that friction was an inevitable and permanent feature of
a mechanical system.
What international lawyers lost as moral critics in the nineteenth century,
they gained as solid professionals, as international law became, for the first time, an
established profession. The two major professional bodies, the International Law
Association and the Institut de Droit International, were both founded in the 1870s.
Characteristically for this period, and reflecting the increasingly technical outlook of
lawyers, these associations rigorously eschewed political issues. International law
also became a subject of university studies on a large scale for the first time during the
nineteenth century, so that there could now be a steady supply of trained personnel
to deal with international legal issues as they arose.
The nineteenth century was also the period in which major systematic treatises
began to be written in the various European languages. Where Vattel had led, many
followed. In 1785, Georg Friedrich de Martens wrote an important early treatise,
which departed from earlier writing in being largely based on State practice rather
than on natural-law doctrine. Originally penned in Latin, it was soon translated into
French and English and was later greatly enlarged (Martens, Primae lineae). Martens
also compiled an important collection of treaty texts. In English, the most notable
early exposition was by Henry Wheaton, an American diplomat and legal scholar,
whose Elements of International Law was published in 1836. Its popularity is indicated
by the fact that it was translated into French, Spanish, and Italian, with new editions
produced for fully a century after the first one. Wheaton was followed in Britain by
Robert Phillimore, whose treatise of 1854-61 ran to four volumes (with two further
editions). The first major German-language treatise was by Auguste Wilhelm Heffter
in 1844 (which ran to eight editions by 1888). The French were slightly later in the
field, with a Precis du droit des gens, by Theophile Funck-Brentano and Albert Sorel
44 STEPHEN C NEFF
in 1877. More influential was the Manuel de droit international public by Henry
Bonfils in 1894 (which ran to eight editions by the 1920s). One of the most popular
texts was that of the Swiss writer Johann Kaspar Bluntschli, whose exposition in 1870
(in French) took the form of a systematic 'code'. A pronounced difference of style, if
not of substance, emerged between the Anglo-American writers and their continental
European counterparts, with the English-language writers concentrating more heavily
on State practice, court decisions, and the like, and the Europeans more on logical
exposition. This intellectual division of labour (so to speak) between the pragmatic
and the doctrinal is evident to the present day.
There was much, admittedly, that was unattractive about nineteenth-century
positivism, particularly to modern eyes-its doctrinaire quality, its narrow horizons,
its lack of high ideals, the aura of superficiality raised to the pitch of dogma, its
narrowly technocratic character, its ready subservience to power. But it would be
wrong to judge it on these points alone because its solid achievements were many.
If it lacked the breadth and idealism of natural-law thought, it also discarded the
vagueness and unreality that often characterized natural-law thought at its worst. In
many ways, positivism was a breath (or even a blast) of fresh air, countering the
speculative excesses of natural-law thought. Even if it sometimes went too far in the
opposite direction, we should nonetheless appreciate the valuable services that it
performed in its time.
It is clear from even a cursory survey of the nineteenth century that, when the wills
of States were coordinated, the results could be impressive. The positivist era was
the period in which we first see the international community 'legislating' by way of
multilateral treaties, for the most part in areas relating to armed conflict. The first
major example of this was the Declaration of Paris of 1856, concluded as a kind of
side effort to the peace treaty ending the Crimean War. It restricted the capture
of private property at sea, by providing that 'free ships make free goods' (ie, that
enemy private property could not be captured on a neutral ship). It also announced
the abolition of privateering. Within five years, it attracted over forty ratifications. In
1868, the Declaration of St Petersburg contained a ban on exploding bullets. It also
denounced total-war practices, by stating that the only permissible objective of war is
the defeat of the enemy's armed forces.
The culmination of nineteenth-century international legislation-and the arrival
of parliamentary-style diplomacy and treaty-drafting-came with the two Hague
Peace Conferences of 1899 and 1907. The first Conference drafted two major conven-
tions: one on the laws of war and one on the establishment of a Permanent Court
of Arbitration (which was actually a roster of experts prepared to act as judges on an
ad hoc basis, and not a standing court). The Second Hague Peace Conference, in 1907,
was a much larger gathering than the earlier one (and hence less Europe-dominated).
It produced thirteen conventions on various topics, mostly on aspects of war and
neutrality. 16
16 For an informative and lively account of these conferences, see Tuchman, 1966, pp 265-338.
A SHORT HISTORY OF INTERNATIONAL LAW 45
One of the major achievements of the nineteenth century was in the area of the
peaceful settlement of disputes. Although it was widely agreed that fundamental
security issues were not justiciable, the nineteenth century marked a great step
forward in the practice of inter-State arbitration. The trend began with the Jay Treaty
of 1794, in which the United States and Britain agreed to set up two arbitration
commissions (comprising nationals of each country) to resolve a range of neutrality
and property-seizure issues that had arisen in the preceding years. These were
followed by a number of ad hoc inter-State arbitrations in the nineteenth century,
of which the most famous, again between Britain and the United States, took place
in 1871-72, for the settlement of a host of neutrality-related issues arising from the
American Civil War. I7
As befitted a scientific and materialistic (ie, 'positive') age, the universalist outlook
of the Middle Ages was transmuted into a programme for the economic and material
betterment of the human race. This re-formulation was pioneered by the French
physiocrats of the eighteenth century, who argued for freedom of trade in foodstuffs.
In the nineteenth century, the Comte de St-Simon and his followers envisaged a
technocratic programme for global economic development and public works. I8
(Comte's early career had been spent as the Comte de St-Simon's secretary.) At
the hands of the British and French liberal political economists, the programme was
re-cast into one of global freedom of economic intercourse on a liberal capitalist
basis-the kind of regime to which the label 'globalization' would later be attached.
Politicians and economists negotiated an ever wider network of FCN treaties, as well
as bilateral agreements for tariff reductions (of which the Cobden-Chevalier Treaty of
1860 between France and Britain was the most famous). Other important elements of
the campaign included widespread freedom of migration (passports were unneces-
sary for much of international travel in the nineteenth century) and the linking
of currencies through the gold standard. Lawyers had a role to play in this grand pro-
gramme-fittingly, in a technical and non-political capacity. They helped to provide
the necessary legal infrastructure for improvements in international communication
and transportation: from the international river commissions that were set up to
ensure freedom of navigation on the Rhine and Danube Rivers (which had been
commercial backwaters since the Middle Ages), to special arrangements for the Suez
and Panama Canals, to the founding of the International Telegraphic and Universal
Postal Unions (1865 and 1874 respectively). The results were impressive. By the
beginning of the twentieth century, the world was economically more integrated
than it would be for many decades thereafter (and in some ways more so than today).
(See Neff, 1990, pp38-71.)
17 For a detailed and informative account, see Crook, 1975.
18 On St-Simonism, see Manuel, 1956.
 STEPHEN C NEFF
B. NATURAL-LAW REMNANTS
In one outstanding-but highly conspicuous-area, natural-law ideas survived in the
nineteenth century. This was the use of force-not the law relating to war as such,
but rather the law relating to 'measures short gf war' (in the somewhat euphemistic
expression). War properly speaking (as noted above) was seen as a matter of State
security policy, the business of politicians and not of lawyers. But measures short
of war were different. They were law-enforcement actions, albeit of a self-help
character-the direct heirs of the old medieval just war. As yet, this phenomenon
has not been the subject of serious historical study.
The most important category of measures short of war were forcible reprisals-
armed action taken against States that were alleged to have committed some kind
of breach of law. Reprisals therefore were not exercises of State policy, as wars were,
but rather were law-enforcement operations. Nor were such actions rare. Indeed, the
nineteenth century was a golden age (if that is the right word for it) of armed
reprisals. The most common cause of such actions was injury to nationals that was
unredressed by the target country. A famous example was Britain's action against
Greece in the 'Don Pacifico' incident of 1850, in which Britain blockaded Greek ports
to compel Greece to pay compensation for mob injury inflicted against one of
its subjects. One of the grandest operations was a blockade of Venezuelan ports in
1902-03 by a coalition of major powers, to compel Venezuela to pay various debts
that were owing to their nationals. Reprisals sometimes also included occupations of
territory and even bombardments of civilian areas.
Other forms of forcible self-help in the nineteenth century induded actions under
the heading of necessity-meaning acts taken not to punish a wrongdoer (as in the
case of reprisals) but to protect the State from some actual or impending harm.
The most obvious example was .self-defence action. The leading incident in this area
occurred in 1837, when the British government pursued Canadian insurgents into the
United States, which they were using as a safe haven, capturing the miscreants and, in
the process, killing several persons and destroying a boat named the Caroline. Britain
justified its action as self-defence. And the correspondence between the two countries
on this subject became famous as the classic exposition of the principle of self-
defence: action in the face of a crisis that is 'instant, overwhelming, leaving no choice
of means, and no moment for deliberation' .19
Measures short of war could take a variety of other forms, such as punitive
expeditions. Notable examples included the British expedition against the Mahdi and
his followers in the Sudan in 1898 (for the killing of General Gordon in Khartoum in
1885) and the American pursuit of Pancho Villa in Mexico in 1916 in the wake of
a terrorist attack on an American town. Another avatar of necessity was the rescue
of imperilled nationals. The best known example was the use of a multinational
armed force to rescue the diplomatic quarter in Peking in the Boxer Rebellion of 1900.
19 29 British and Foreign State Papers 1137-38.
A SHORT HISTORY OF INTERNATIONAL LAW 47
In these situations, there was certainly scope for abuses. Some actions, such as the
British intervention in the Sudan in 1898, blossomed from punitive operations into
annexations. Nor did it escape general attention that armed reprisal actions were
almost exclusively waged by the major powers against what would now be called
developing countries. Not surprisingly, these measures of armed self-help sparked a
high degree of outrage among developing States. In the wake of the Venezuelan
incident of 1902-03, the Foreign Minister of Argentina, Luis Drago, proposed an
outright ban against the use of force in cases of contract debts. The most that could be
agreed in this direction was a milder restriction, set out in the Porter Convention of
1907 (named for the American diplomat who was its chief sponsor), adopted by the
Second Hague Peace Conference. This convention merely required certain procedural
steps to be taken before armed reprisals could be resorted to in debt-default cases.
It is one of history's great ironies that the natural-law tradition, which had once
been so grand an expression of idealism and world brotherhood, should come to such
an ignominiously blood-spattered end. A philosophy that had once insisted so
strongly on the protection of the weak against the strong was now used as a weapon
of the strong against the weak. It is, of course, unfair to condemn a whole system of
justice on the basis of abuses. But the abuses were many, and the power relations too
naked and too ugly for the tastes of many from the developing world. Along with
imperialism itself, forcible self-help actions left a long-lasting stain on relations
between the developed and the developing worlds.
C. THE HISTORICIST (OR 'ROMANTIC') TRADITION
The historicist (or 'romantic') strand of nineteenth-century thought represents, to
some extent, an evolved version of natural law-but evolved to the point of being
transformed nearly out of recognition. It was natural law decked out in a historicist
garb, whose principal philosophical tailor was Georg Friedrich HegePO Hegel agreed
with the positivists that the fundamental unit of study was the nation-State. If
anything, he was more dogmatic on that subject than the ·most doctrinaire positivist
ever was-seeing the State primarily as the political vehicle for the cultural and
psychological aspirations of peoples. This historicist and romantic mentality played a
major role in nineteenth-century thought and politics generally, but only a minor
one in international law. It attracted only two major international-law writers to its
banner: James Lorimer from Scotland and Pasquale Mancini from Italy.21 And it has
largely been forgotten since, at least by lawyers. This is a pity, because State practice in
the area offered a number of interesting lessons that might have been (and might yet
be) useful in our own time.
20 See generally Hegel, Lectures.
21 For Lorimer, see generally, Lorimer, Institutes. For Mancini, see Mancini, Della Nazionalita. Mancini
is very little known in the English-speaking world, since he wrote almost entirely in Italian. For an extremely
brief account of his views in English, see Sereni, 1943, pp 162-164.
 STEPHEN C NEFF
Never did a legal school of thought span the political spectrum so comprehensively
as this historicist one. On the left, it readily embraced liberal nationalism and the self-
determination of peoples. Mancini, for example, saw international law chiefly as a law
of peoples or of nations in the sense of historical, linguistic, and cultural units. It was
the destiny of these cultural 'nations' to play their allotted role in. world history by
acquiring the trappings of statehood. But the historicist outlook also accommodated
itself readily (far too readily for modern sensibilities) to ideas about 'progressive' and
'atavistic' States. This outlook in turn led to imperialist, Social Darwinist, and even
racialist ideas associated largely with the political right.
A crucial aspect of the historicist outlook was the thesis that the direction of history
on its march was susceptible of comprehension and even of judicious guidance. This
idea gave the historicist strand of thought a teleological component, reminiscent of
older natural-law thought. In practical, everyday terms, this guidance was in the hands
of the four major powers which had triumphed over the armies of revolutionary and
Napoleonic France (Britain, Russia, Prussia, and Austria). At the Congress of Vienna
in ISI4-1S, they consciously set about reversing the revolutionary disruptions to the
extent possible, crafting a continent-wide set of political arrangements that would
(they hoped) keep the scourge of revolution from breaking out again. The four victors
also formed themselves into a Quadruple Alliance (later to become a Quintuple one
when a 'reformed' France was admitted to its ranks), which would oversee the longer-
term preservation of the Vienna settlement. An important aspect of this informal
policing of Europe by the major powers was a readiness to intervene militarily where
necessary-though in the interest of general European peace and security, rather than
of the parochial interests of the individual powers. (But the line between the two sets
of interests was, to put it mildly, not easily drawn.)
From the legal standpoint, certain features of this settlement of ISIS are particu-
larly worth noting. There had been major European peace settlements before-most
notably, the Peace of Westphalia in 164S and the Peace of Utrecht in 1713. But this
one was different, in that it was to be rooted fundamentally in law-in a body of
principles that became known as the 'public law of Europe', an idea grandly
announced by Talleyrand at the Congress of Vienna. This 'public law of Europe'
would be based on faithful adherence to treaty commitments, as well as on respect
for established laws and legitimate governments and property rights within the
States of Europe. It should not be supposed that this Vienna settlement was wholly
reactionary in character. It included a duty on the part of rulers to 'earn' their
legitimacy by providing orderly and efficient government to their peoples and by
cooperating with movements for orderly and peaceful change. It was a programme
calling for the cool dispassion of the manager in place of the warm ardour of the
revolutionary.
This 'public law of Europe' was to be vigilantly overseen by the Quintuple Alliance.
The resemblance to the later United Nations is unmistakable, with its plan for
major-power oversight of the post-194S world. But there were important differences
between this system of world order and the later one. The most obvious one was that
A SHORT HISTORY OF INTERNATIONAL LAW 49
this post-ISIS system had none of the organizational trappings that modern lawyers
are accustomed to. There were no annual assemblies of States, no resolutions, no
secretariats, no standing courts. Instead, the organization was decentralized and ad
hoc. (There were regular congresses of the powers for a few years after ISIS, but they
were soon discontinued.) For this reason, it has proved almost impossible for modern
lawyers to see this aspect of their own heritage.
In the event, this post-ISIS system of great-power oversight worked much less
tightly than originally planned (or hoped), largely because the national interests of the
five powers began to diverge. The three most conservative States-Russia, Prussia, and
Austria-formed themselves into a so-called 'Holy Alliance', which was distinctly
more concerned to suppress revolution than to advance orderly change. Britain, on
the other extreme, was generally opposed to an active intervention policy. As a result,
the oversight by the major powers took a looser form known as the 'Concert of
Europe', which intervened in crises only on an ad hoc, sporadic basis. A few of these
interventions may be noted briefly. The first ones were in the cause of 'legitimacy' in
the IS20s, when there were military interventions to subdue revolutions in Naples and
Sardinia (by Austria) and in Spain (by France). Some of the actions of the Concert of
Europe were in the nature of what would later be called peacekeeping. A notable case
occurred in the late IS20s, when Britain, France, and Russia cooperated to stop the
bloodshed in the Greek independence struggle-in the process ensuring outright
independence for the Kingdom of Greece. There was also great-power involvement
in the Belgian independence crisis of the IS30s. The powers even considered them-
selves entitled to intervene in peace settlements after wars, if the terms imposed
on the losing side looked to be too destabilizing for the continent as a whole.
The most notable instance of this occurred in IS7S, when the major powers stepped
in to prevent Russia from exacting too harsh a peace against Turkey after a victorious
war. 22
Humanitarian considerations were a factor in some of the interventions, such as the
Greek and Belgian ones. The same was true of an intervention chiefly by France in
a communal-violence crisis in the Mount Lebanon area in IS60. The most notable
of these great-power humanitarian actions was probably the one in Crete in IS97,
when the powers stepped in to stop atrocities and counter-atrocities between
Greeks and Turks. In virtually none of these cases was there a pure humanitarian
motive, untouched by any other consideration. But some (arguable) precedents were
established for later advocates of the lawfulness of humanitarian intervention.
In the event-and here too, foreshadowing the later United Nations-the divergent
interests of the major powers meant that the guidance of the Concert of Europe
worked only fitfully at best. Most notably, the Concert of Europe was not able to
prevent the outbreak of the Great War of 1914-1S-an episode so overpowering and
tragic that it gave rise to new forms of world organization.
22 For one of the few legal texts to treat this subject, see Dupuis, Principe d'equilibre, 1909.
50 STEPHEN C NEFF
VI. THE TWENTIETH AND TWENTY-FIRST
CENTURIES (1919- )
Since much of this book will cover twentieth-century developments, no attempt
will be made at comprehensive coverage, particularly of the post-1945 period. But
certain aspects of both the inter-war and the post-1945 periods which have received
comparatively little attention so far will be emphasized..
A. THE INTER-WAR PERIOD
The carnage of the Great War of 1914-18 led many to hold that neither the positivist
'rules of the game' approach to world order, nor the practice of ad hoc interventions
by the Concert of Europe, was adequate any longer. The solution was the establish-
ment of the League of Nations, whose Covenant was set out in the Versailles Treaty
of 1919. This new system of public order would be of an open, parliamentary, demo-
cratic character, in contrast to the discreet great-power dealings of the Concert of
Europe.
The League was a complex combination of conservatism and boldness. On the side
of conservatism was the decision to make no fundamental change in the sovereign
prerogatives of nation-States as these had developed up to that time. No attempt was
made to establish the League as a world government, with sovereign powers over its
member States. Nor did the Covenant of the League prohibit war. Instead, the resort
to war was hedged about with procedural requirements-specifically that either a
judicial or political dispute-settlement process must be exhausted before there could
be war between League member States. On the side of boldness was the Covenant's
\
provision for automatic enforcement action against any League member State resort-
'I'
ing to war without observing the peaceful-settlement rules. This enforcement took
the form of economic sanctions by all other League member States, a tactic inspired
by the Allied blockade of Germany during the Great War. There was, however, no
provision for military action against delinquent States.
The general history of the League has been adequately treated in other sources
(Walters, 1952; Northedge, 1986), so only a few points of special interest to lawyers
need be noted here. One problem that immediately arose from the restriction on war
was the need to distinguish war properly speaking from measures short of war, such as
reprisals. The importance of this distinction lay in the fact that the League's automatic
sanctions were only triggered by a resort to .':war', not by a measure short of war, This
issue first arose in 1923, in the context of ~ Italian bombardment and occupation of
Corfu - which Italy insisted was a reprisal action against Greece and not an act of war
(a position which the League effectively accepted).
In due course, two major initiatives supplemented the League's efforts to maintain
peace. In 1928, the Pact of Paris was concluded, in which the States parties forswore
A SHORT HISTORY OF INTERNATIONAL LAW 51
any resort to war as a means of national policy. The practical effects of this initiative,
however, were not impressive. For one thing, no sanctions were provided. It was also
carefully understood by the signatories that self-defence action would be permitted-
a potentially large loophole. The second initiative was the Stimson Doctrine of 1932,
announced by the United States (and named for its Secretary of State at the time) in
the wake ofJapan's occupation of Manchuria. It held that any situation brought about
by aggression would not be accorded legal recognition by the United States. Here too,
the immediate material impact was not great; but it perhaps had some precedential
value, since the UN General Assembly endorsed it as a general principle in 1970.
Only on one occasion was the sanctions provision of the Covenant invoked: against
Italy for its invasion of Ethiopia in 1935-36. The sanctions failed to save Ethiopia,
since the conquest was completed before they could have any serious effect. This
failure led to a period of profound soul-searching amongst international lawyers as to
what their role in the world should be. 23 It similarly led States into desperate searches
for alternative sources of security to the League Covenant. A number of countries,
such as Switzerland, Belgium, and the Scandinavian States, sought safety in reverting
to traditional neutrality policies. But there were also a number of imaginative pro-
posals for informal, but coordinated, action by States against aggressors (eg, Cohn,
1939; Jessup, 1936). There was even a sort of return to ad hoc great-power manage-
ment, in the form of a collective and coordinated non-intervention policy organized
by the major powers at the outbreak of the Spanish Civil War in 1936. Unfortunately,
this effort, too, was largely unsuccessful because of inadequate implementation and
great-power rivalry (see Watters, 1970).
Although the League failed as a protector against aggressors, it would be far wrong
to suppose that the inter-war period was a sterile time in international law generally.
Precisely the opposite was the case. It was a time of ferment, experiment, and excite-
ment unprecedented in the history of the discipline. A World Court (known formally,
if optimistically, as the Permanent Court of International Justice) was established as a
I standing body, with its seat at the Hague in the Netherlands. It did not have com-
pulsory jurisdiction over all disputes. But it decided several dozen cases, building up,
for the first time, a substantial body of international judicial practice. These cases ~ere
supplemented by a large number of claims commissions and arbitrations, whose
outpourings gave international lawyers a volume of case law far richer than anything
that had ever existed before.
The codification of international law was one of the ambitious projects of the
period. A codification conference, convened by the League of Nations in 1930, pro-
duced only modest results (chiefly on certain issues on nationality). But there were
further initiatives by the American States in a variety of fields. These included a
convention on the rights and duties of States in 1933, which included what many
lawyers regard as the canonical definition of a 'State' for legal purposes. 24 The American
23 See, notably, Niemeyer, 1940.
24 See Ch 7 below.
52 STEPHEN C NEFF
States also concluded conventions on maritime neutrality, civil wars, asylum, and
extradition.
The inter-war period also witnessed the first multilateral initiatives on human
rights. A number of bilateral conventions for the protection of minorities were
concluded between various newly created States and the League of Nations. In the
event, these proved not to be very effective; but they set the stage for later efforts
to protect minority rights after 1945. The principle of trusteeship of dependent terri-
tories was embodied in the mandates system, in which the ex-colonies of the defeated
States were to be administered by various League member States as 'a sacred trust of
civilization', with oversight by the League. Finally, the League performed heroic
labours for the relief of refugees, in the face of very great obstacles-in the process
virtually creating what would become one of the most important components of the
law of human rights.
In short, the inter-war period did not bring an end to war or aggression. But it was
the most vibrant and exciting era in the history of the discipline up to that time (and
perhaps since).
B. AFTER 1945
In the immediate aftermath of the Second World War, international law entered
upon a period of unprecedented confidence and prestige, for which 'euphoria'
might not be too strong a word. International lawyers even found themselves in the
(unaccustomed) role of heroic crusaders, with the dramatic prosecutions of German
and Japanese leaders for crimes under international law at Nuremberg and Tokyo
in the late 1940s. Plans even began to be laid for the creation of a permanent
international criminal court.
The founding of the United Nations in 1945, to replace the defunct League of
Nations, was a critical step in the creation of a new world order. With the UN came a
new World Court (th~ International Court of Justice, or ICn, though still without
compulsory jurisdi~tion over States. The heart of the organization was the Security
Council, where (it was hoped) the victorious powers from the Second World War
would continue their wartime alliance in perpetuity as a collective bulwark against
future aggressors. (It may be noted that 'United Nations' had been the official name
for the wartime alliance.) The UN therefore marked something of a return to the
post-1815 system of great-power dominance. The special status of the five major
powers (the principal victors in the Second World War, of course) was formally
reflected by their 'possession of permanent seats on the Security Council, together
with the power of veto over all its decisions.
The UN Charter went further than the League Covenant in restricting violence,
by containing an outright prohibition not only against war as such, but also against
'the use of force' in general-thereby encompassing both war properly speaking and
measures short of war, such as armed reprisals. An express exception was made for
self-defence. Regarding action against aggressors, the UN was both bolder and more
A SHORT HISTORY OF INTERNATIONAL LAW 53
timid than the League had been. It was bolder in that the Charter provided not only
for economic sanctions but also for armed action against aggressors. There was even
provision for a standing rapid-action military capacity, although that did not bear
fruit. The UN Charter was more timid than the League, however, in that. sanctions
(whether economic or military) were not mandatory and automatic, as in the League
Covenant. The Security Council-dominated by the major powers-was to decide on
an ad hoc basis when, or whether, to impose sanctions. The result was to make the
UN a more openly political body than the League had been.
Parallel to this security programme was another one for the promotion of global
economic prosperity. The economic-integration effort of the nineteenth century,
shattered by the Great War and by the Great Depression of the 1930s, was to be
restructured and given institutional embodiments. The International Monetary
Fund was founded to ensure currency stability, and the World Bank to protect
and promote foreign investment and (in due course) economic development.
Trade liberalization would be overseen by a body to be called the International Trade
Organization (ITO).
The euphoric atmosphere proved, alas, to be very short-lived. Enthusiasm for
further international criminal prosecutions waned after the Nuremberg trials, as did
interest in establishing a permanent international criminal court. Scarcely had the UN
begun to function than it became paralysed by Cold-War rivalry between the major
power blocs-with the notable exception of the action in Korea in 1950-53 (only
made possible by an ill:-advised Soviet boycott of the Security Council at the relevant
time). Nor did the new World Court find much effective use in its early decades.
The ITO never came into being (because of a loss of interest by the United States).
The UN Charter's general ban against force also appeared to have little effect beyond a
cruelly ironic one: of propelling self-defence from a comparative legal backwater into
. the very forefront of international legal consciousness. Since self-defence was now the
only clearly lawful category of unilateral use of force, the UN era became littered witb
self-defence claims of varying degrees of credibility, from the obvious to the risible.
In particular, actions that previously would have been unashamedly presented as
reprisals now tended to be deftly re-Iabelled as self-defence. 25
All was not gloom, though, by any stretch of the imagination. In non-political
spheres, lawyers fared a great deal better, very much in the technocratic spirit of
nineteenth-century positivism. The post-1945 period witnessed a veritably explosive
increase in international law-making. The codification of international law, for
example, made some major strides, in large part from the activity of a UN body
of technical experts called the International Law Commission., The principal areas of
law that received a high degree of codification included the law of the sea (with four
related conventions on the subject in 1958, replaced in 1982 by a single, much larger
convention), diplomatic and consular relations (in the early 1960s), human rights
(with two international covenants in 1966), and the law of treaties (in 1969).
25 See Ch 19 below.
54 STEPHEN C NEFF
There was also a huge increase in the number of areas in which international
cooperation was seen to be important. There scarcely seemed any walk of life that was
not being energetically 'internationalized' after 1945-from monetary policy to civil
aviation, from human rights to environmental protection, from atomic energy to
economic development, from deep sea-bed mining to the exploration of outer space,
from democracy and governance to transnational crime-fighting. Accompanying
this expansion of subject areas was a mushrooming in the number of international
organizations after 1945, with an ever-proliferating parade of resolutions, pro-
grammes of action, assemblies of States, secretariats, conventions, protocols, and the
like. 26 The cumulative effect was to weld the States of the world in general-and
international lawyers in particular-into a tighter global community than ever before.
All this was a very far cry indeed from Herodotus and his silent traders. It is easy to
understand that, amidst all this hub-bub of accomplishment, a certain triumphalist
spirit could pervade the ranks of international lawyers. At the same time, though, it
was not so clear that the fundamentals of the subject had changed very much. The
basic positivist outlook, inherited from the nineteenth century, continued to have
great staying power. The cornerstone principle of the sovereign equality of States
remained in force-even finding expression in the UN Charter as one of the basic
principles of the organization. In addition, international law continued to be
regarded, at least in largest part, in positivist terms as an emanation of the free wills of
the States themselves. And those wills continued to find expression through the two
familiar channels: treaties and custom.
It might be noted that some of the most important political and intellectual
upheavals of the twentieth century left strangely little mark on international law.
Socialism, for example, far from being a major challenge to lawyers, was actually a
conservative force. Socialist theorists tended to write more dogmatically in the positiv-
ist vein than their Western counterparts did. Nor did the massive influx of developing
States onto the world scene bring about any fundamental conceptual upheaval. For the
most part, the developing countries readily accepted established ways, although they
also made some concrete contributions in specific areas. One was the establishment of
self-determination as a fundamental, collective human right. Another was in the area
of succession to treaties by newly independent States, with the States being given an
option of choosing which colonial treaties to retain. It is not that there were not new
ideas in the air. There were. 27 But they seemed to have little impact on the actual
practice of international lawyers.
Around the 1980s, a certain change of atmosphere in international law became
evident, as something like the idealism of the early post-war years began, very cau-
tiously, to return. There were a number of signs of this. One was a sharp upturn in the
judicial business of the World Court. This included a number of cases of high political
profile, from American policy in Central America to the Tehran hostages crisis to the
26 See Ch 8 below.
27 See, eg Ch 2.
A SHORT HISTORY OF INTERNATIONAL LAW 55
Yugoslavian conflicts of the 1990s.28 In the 1990s, the ITO project was revived, this time
with success, in the form of the creation of the World Trade Organization (WTO),
which gave a significant impetus to what soon became widely, if controversially,
known as 'globalization' .29 Human rights began to assume a higher profile, as a result of
several factors, such as the global campaign against South African apartheid and the
huge increase in activity of non-governmental organizations. The end of the Cold
War led to tangible hopes that the original vision of the UN as an effective collective-
security agency might, at last, be realized. The expulsion of Iraq from Kuwait in 1991
lent strong support to this hope. Perhaps most remarkable of all was the rebirth of
'plans for an international criminal court, after a half-century of dormancy. A statute
for a permanent International Criminal Court was drafted in 1998, entering into force
in 2002. 30
In this second round of optimism, there was less in the way of euphoria than there
had been in the first one, and more of a feeling that international law might be
entering an age of new-and dangerous-challenge. International lawyers were now
promising, or threatening, to bring international norms to bear upon States in an
increasingly intrusive manner. A striking demonstration of this occurred in 1994,
when the UN Security Council authorized the use of force to overthrow an uncon-
stitutional government in Haiti. In 1999, the UN Security Council acquiesced in
(although it did not actually authorize) a humanitarian intervention in Kosovo by a
coalition of Western powers. It was far from clear how the world would respond to
this new-found activism. The end of the Cold War may have been welcome. But it was
by no means clear whether the world would really be content to entrust its security, in
perpetuity, to a Concert-of-Europe style directorate of major powers.
International legal claims were being asserted on a wide range of other fronts as
well, and frequently in controversial ways. For example, lawyers who pressed for
self-determination rights for various minority groups and indigenous peoples were
accused of encouraging secession movements. Some human-rights lawyers were
loudly demanding changes in the traditional practices of non-Western peoples. And
concern over democracy, governance, and corruption posed, potentially, a large threat
to governments all over the world. Some environmental lawyers were insisting that,
in the interest of protecting a fragile planet, the world should deliberately curb
its economic growth. Economic globalization also became intensely controversial, as
the IMF's policy of 'surveillance' ~ somewhat ominous term to some) became
increasingly detailed and intrusive am:i-..as 'structural adjustment' was seen to have
potentially far-reaching consequences in volatile societies. Fears were increasingly
voiced that the globalization process would bring an increase in economic inequality.
28 See Ch 18 below.
29 See Ch 22 below.
30 See Ch 23 below.
 STEPHEN C NEFF A SHORT HISTORY OF INTERNATIONAL LAW 57

DE VITORIA, F (1991), Political Writings KEEN, M (1965), The Laws of War in the Late
VII. CONCLUSION (Pagden, A and Lawrance, J (eds» (Cam- Middle Ages (London: Routledge and
bridge: Cambridge University Press). Kegan Paul).
How well these new challenges will be met remains to be seen. At the beginning of the DUFOUR, A (1991), 'Pufendorf, in The KNIGHT, WSM (1925), Life and Works of
twenty-first century, it is hard to see the UN 'failing' in the way that the League of Cambridge History of Political Thought Hugo Grotius (London: Sweet &
Nations did and being completely wound up. No one foresees a reversion to the 1450-1700 (Burns, JH and Goldie, M Maxwell).
rudimentary ways of Herodotus's silent traders. But it is not impossible to foresee a (eds) ) (Cambridge: Cambridge University KOSKENNIEMI, M (2001), The Gentle Civil-
Press), PP 561-588. izer of Nations: The Rise and Fall of Inter-
nationalist or populist backlash against what is seen to be excessive international
activism and against the elitist, technocratic culture of international law and organiza- DUPUIS, C (1909), Le principe d'equilibre et national Law 1870-1960 (Cambridge:
Ie concert europeen de la Paix de Westphalie Cambridge University Press).
tion. If there is one lesson that the history of international law teaches, it is that the
world at large-the 'outside world' if you will-has done far more to mould inter-
a l'Acte d'Algesiras (Paris: Perrin). LORIMER, J (1883-84), The Institutes of the
GENTILI, A (1933), On the Law of War (Rolfe, Law of Nations: A Treatise of the Jural
national law than vice versa. By the beginning of the twenty-first century, inter-
JC (trans.» (Oxford: Clarendon Press). Relations of Separate Political Com-
national lawyers were changing the world to a greater extent than they ever had before.
GIERKE, 0 (1938), Political Theories of the munities, 2 vols (Edinburgh: W.
But it is (or should be) sobering to think that the great forces of history-religious,
Middle Age (Maitland, FW (trans.» Blackwood).
economic, political, psychological, scientific-have never before been successfully
(Cambridge: Cambridge University MANCINI, PS (1851), Della Nazionalita come
'managed' or tamed. And only a rash gambler would wager that success was now at Press).
fondamento del diritto delle genti (Turin:
hand. Perhaps the most interesting chapters of our history remain to be written. GROTIUS, H (1925), The Law of War and Eredi Botta).
Peace (Kelsey, FW (trans.» (Oxford:
MANUEL, FE (1956), The New World of
Clarendon Press).
Henri St-Simon (Notre Dame, Ind.: Uni-
HAGGENMACHER, P (1983), Grotius et la versity of Notre Dame Press).
REFERENCES doctrine de la guerre juste (Paris: Presses
NEFF, SC (1990), Friends But No Allies: Eco-
Universitaires de France).
nomic Liberalism and the Law of Nations
AGER, SL (1996), Interstate Arbitrations in Expansion of International Society HEFFTER, AW (1844), Das europiiische VoIk- (New York: Columbia University Press).
the Greek World, 337-90 B.G. (Berkeley, (Oxford: Clarendon Press). errecht der Gegenwart, auf den bisherigen
Calif.: University of California Press). CICERO, MT (1998), Republic (Rudd, N NIEMEYER, G (1940), Law Without Force:
Grundlagen (Berlin: EH Schroeder).
(trans.) (Oxford: Oxford University Press). The Function of Politics in International
ARISTOTLE, 'Rhetoric', in The Basic Works of HEGEL, GF (1975), Lectures on the Philoso-
Law (New Brunswick, NJ: Transaction
Aristotle (McKeon, R (ed.) 1941), (New COHN, G (1939), Neo-neutrality (Kellar, AS phy of World History (Nisbet, HB (trans.»
Publications).
York: Random House), pp 1325-145l. and Jensen, E (trans.» (New York: (Cambridge: Cambridge University
Columbia University Press). Press). NORTHEDGE, FS (1986), The League of
BEDERMAN, DJ (2001), International Law in
CROOK, A (1975), The Alabama Claims: Nations: Its Life and Times 1920-1946
Antiquity (Cambridge: Cambridge Uni- HERODOTUS (1954), Histories (De Selin-
American Politics and Anglo-American (Leicester: Leicester University Press).
versity Press). court) A (trans.» (Harmondsworth:
Relations, 1805-1872 (Ithaca, NY: Cornell Penguin). NUSSBAUM, A (1947), A Concise History of
BHATIA, HS (ed.) (1977), International Law
University Press). JESSUP, PC (1936), Today and Tomorrow, vol the Law of Nations (New York:
and Practice in Ancient India (New Delhi:
DE MARTENS, GF (1785), Primae lineae iuris 4 of Jessup, PC and Deak, F, Neutrality: Its Macmillan).
Deep and Deep Publications).
gentium Europaearum practici in usum History, Economics and Law (4 vols, 1935- PHILLIMORE, R (1854--61), Commentaries
BLUNTSCHLI, JC (1870), Le droit inter-
auditorum adumbratae (Gottingen: 37) (New York: Columbia University upon International Law, 4 vols (London:
national codifie (Lardy, MC (trans.»
Johann Christian Dieterich). Press). WG Benning).
(Paris: Guillaumin).
DE VATTEL, E (1916), The Law of Nations JOHN OF LEGNANO (1917), Tractatus de PUFENDORF, S (1934), On the Law of Nature
BONET, H (1949), The Tree of Battles (Coop- (Fenwick, CG (trans.» (Washington, DC: and Nations (Oldfather, CH and Old-
Bello, de Represaliis et de Duello (Holland,
land, GW (trans.» (Liverpool: Liverpool Carnegie Institution of Washington). TE (ed.), Brierly, JL (trans.» (Oxford: father, WA (trans.» (Oxford: Clarendon
University Press). Press).
_.- (1762), Questions de droit naturel, et Oxford University Press).
BONFILS, H (1894), Manuel de droit inter- observations sur Ie traite du droit de la KADDURI, M (1955), War and Peace in the RUSSELL, FH (1975), The Just War in the
national public (Paris: A. Rousseau). nature de M. Ie Baron de Wolf (Berne: Law of Islam (Baltimore, Md.: Johns Hop- Middle Ages (Cambridge: Cambridge
BULL, H and WATSON, A (eds) (1984), The Societe typographique). kins University Press). University Press).
 STEPHEN C NEFF

SCHNEEWIND, JB (1998), The Invention of WALTERS, FP (1952), History of the League of

Autonomy: A History of Modem Moral
Philosophy. (Cambridge: Cambridge Uni-
versity Press).
SERENI, AP (1943), The Italian Conception of
International Law (New York: Columbia
University Press).
TUCHMAN, B (1966), The Proud Tower: A
Portrait of the World Before the War
(Dobbs Ferry, NY: Ballantine).
TUCK, R (1999), The Rights of War and
Peace: Political Thought and the Inter-
national Order from Grotius to Kant
(Oxford: Oxford University Press).
VAN DER MOLEN, G (1968), Alberico Gentili
and the Development of International Law
(Leiden: Sijhoff).
Nations (London: Oxford University
Press).
WATTERS, WE (1970), An International
.2
Affair: Non-intervention in the Spanish
Civil War (New York: Simon and
Schuster).
SOME COMMON HERESIES
WHEATON, H (1866), Elements of Inter-
national Law, 8th edn (Dana, RH (ed.)
ABOUT INTERNATIONAL
1936)
Press).
(Oxford: Oxford University LAW: SUNDRY THEORETICAL
WOLFF, C (1737), Cosmologia Generalis,
2nd edn (Frankfurt: Officini Libraria
PERSPECTIVES
Rengeriana) .
- - (1934), The Law of Nations Treated lain Scobbie
According to a Scientific Method (Drake,
JH (trans.)) (Oxford: Clarendon Press).

FURTHER READING
BEDERMAN, DJ (2001), International Law in
Antiquity (Cambridge: Cambridge Uni-
versity Press), very ably covers the ancient
Near East, together with classical Greece
and Rome.
GREWE, WG (2000), The Epochs of Inter-
national Law (Byers, M (trans.)) (Berlin:
Walter de Gruyter), is another general
historical survey of international law,
focusing on State practice and having a
generally political slant.
KOSKENNIEMI, M (2001), The Gentle Civil-
izer of Nations: The Rise and Fall of Inter-
national Law 1870-1960 (Cambridge:
Cambridge University Press) contains a
vast wealth of information on continental
European (particularly French and Ger-
man) thought in the nineteenth and early
twentieth centuries.
TUCK, R (1999), The Rights of War and
Peace: Political Thought and the Inter-
national Order from Grotius to Kant
(Oxford: Oxford University Press), exam-
ines international law in the seventeenth
and eighteenth centuries, but is confined
to doctrines of the major thinkers and
does not cover State practice.
The following works trace the history of
certain topics:
FREY, LS and FREY, ML (1999), The History
of Diplomatic Immunity (Columbus: Ohio
University Press).
NEFF, STEPHEN C (1990), Friends But No
Allies: Economic Liberalism and the Law of
Nations (New York: Columbia University
Press).
(2000), The Rights and Duties of Neu-
Legal theory is always more or less closely connected with philosophical thinking, political
conditions, and ideological currents.
Karl Olivecrona, Law as Fact (1971), p 27
{T}heories of law . .. are one of the principal causes of low morale among students of inter-
national law.
Ian Brownlie, International Law at the Fiftieth Anniversary of the
United Nations (1995), p 22
SUMMARY
International law does not exist in an intellectual vacuum. Our understanding of the nature
of international law-of what it is and what it can and should do-is ultimately dependent
on theoretical assumptions and presuppositions. These can be latent and unexamined, in
which case they are likely to foster only an acritical complacency. As all law has a political
dimension, because law attempts to provide authoritative models of how people should
behave, it is not surprising that theoretical models of international law encode specific
views of the world and of relations between States. These assumptions and presuppositions
influence the analysis of substantive issues, thus theory is an issue which should neither be

NUSSBAUM, A (1947), A Concise History
of the Law of Nations (New York:
Macmillan) is a very broad-brush general
historical survey of international law,
concentrating largely on doctrine.
trals: A General History (Manchester:
Manchester University Press).
RALSTON, JH (1929), International Arbitra-
tion from Athens to Locarno (London:
Oxford University Press).
ignored nor be simply left behind in the academy. This chapter attempts to demonstrate
this by exposing the premisses and methodology of two dominant schools of international
legal thought that are now principally associated with the Cold War-the New Haven
School and Marxist-Leninist theory. These are, howeve~ instrumental approaches to inter-
national law that do not exhaust the scope of theoretical writing. The chapter ends by giving
60 lAIN SCOBBIE
an account of a fundamental contemporary critique of the international system- Philip
Allott's Eunomia-which denigrates the world of States, and argues for a reconstruction
of international affairs that focuses on the individual.
I. INTRODUCTION: THEORY MATTERS
An understanding of legal theory is crucial to the legal enterprise and to the prac-
tical application of law. Doubtless this would b~ denied by some; for instance
Professor Brownlie has claimed that '[t]here is no doubt room for a whole treatise
on the harm caused to the business of legal investigation by theory' (Brownlie, 1983,
p 627).1 On the other hand, this disavowal of theory could simply be seen as a
conservative commitment to a hidden or latent theory that rests content with the
status quo and seeks neither to question nor justify either the substance or practice
of international law (Warbrick, 1991, pp 69-70).2 If so, this disinterest simply
amounts to a conscious refusal to think about what one is doing. It constitutes an
intellectual self-censorship which suppresses analysis and critical evaluation at least
as much as an external authoritarian enforcement of conformity to some 'official'
or received model of the nature and function of international law. It is perhaps
worth noting that although in some instances the official model might be that
prescribed by the State-such as the Soviet theory of international law-theoretical
trends or schools can themselves attempt to impose an intellectual hegemony
and decry or denigrate dissent, for instance by designating critics and doubters as
'decadent' (Carty, 1997, pp 188-189).
Despite, in some quarters, a lingering attachment to the classical Austinian posi-
tivist claim that, because there is no determinate sovereign superior to promulgate
and enforce commands, international law is not law but merely amounts to positive
morality,3 this view is no longer generally accepted. As Professor Franck (1995, p 6)
affirms:
international law has entered its post-ontological era. Its lawyers need no longer defend the
very existence of international law. Thus emancipated from the constraints of defensive
ontology, international lawyers are now free to undertake a critical assessment of its
content. 4
Some contemporary theorists, however, on grounds far divorced from the crudities
of Austinian analysis, deny the very existence of a discipline we can identify
1 For Brownlie's antipathy to theory, see also Brownlie, 1981 at pp 5-8, and Brownlie, 1995, p 22ff.
2 See also Warbrick, 2000, p 621 passim, but especially at pp 633-636; and Lasswell and McDougal, 1943,
p 207. This was their first co-authored work, and is reprinted as an appendix in Lasswell and McDougal, 1992,
vol II at p 1265.
3 See Austin, 1832 (1995), Lecture V, pp 123-125.
4 On the ontological argument of whether international law is really law, see, for instancej Arend, 1999,
ch 1, especially at p 28ff, and Franck, 1990, ch 2.
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 61
as 'international law', as something distinct from other disciplines, particularly
politics. s
We must start somewhere, and from a less radical position than one which dis-
avows the very subject of this chapter. Otherwise I could simply rest content with
stating that international law isn't, even although that might have to be stated at some
considerable length. Accordingly, I propose to offer if not a rough account of what
'international law' might be, at least perspectives on this question; but any such
relatively abstract exposition must amount to a 'theory' of law. So what is a 'theory',
and what it is for?
II. WHAT IS A (THEORY' AND WHAT IS IT FOR?
Again, for present purposes, we need only adopt some definition that gives us a place
to start. A useful orientation to the notion of a theory is provided by Kant. Kant (1793
(1970), p 61) defined a theory as:
A collection of r~s, even of practical rules, is termed a theory if the rules concerned
are envisaged as principles of a fairly general nature, and if they are abstracted from
numerous conditions which, nonetheless, necessarily influence their practical application.
Conversely, not all activities are called practice, but only those realisations of a particular
purpose which are considered to comply with certain generally conceived principles of
procedure.
But what does this mean? It means that the function of a theory is to formulate
or guide practice; to- provide a relatively abstract framework for the understanding
and determination of action. Kant cautions, however, that a theory is not enough.
The abstract knowledge provided by a theory 'must be supplemented by an act of
judgement whereby the practitioner distinguishes instances where the rule applies
from those where it does not'. There are those who understand a field but can never
apply it practically precisely because they lack judgement, such as 'doctors or lawyers
who did well during their schooling but who do not know how to act when asked to
give advice' (ibid). Nevertheless, a theory is necessary because it provides us with the
intellectual blueprint necessary to understand the world, or some specific aspect of
human affairs (p 62):
no-one can pretend to be practically versed in a branch of knowledge and yet treat theory
with scorn, without exposing the fact that he is an ignoramus in his subject. He no doubt
imagines that he can get further than he could through theory if he gropes around in
experiments and experiences, without collecting certain principles (which in fact amount to
what we term theory) and without relating his activities to an integral whole (which, if
treated methodically, is what we call a system).
5 For instance, Kratochwil, 1989; Koskenniemi, 1989. For a commentary on both, see Scobbie, 1990.
 62 lAIN SCOBBIE
Kant's notion of a system, which comprises an integrated body of knowledge rather
than simply a collection of essentially unrelated general rules, underlines the constitu-
tive function of theory. Theory makes data comprehensible by providing a structure
for the organization of a given discipline or body of knowledge.
Contrast this with Hart's analysis of international law. He argued that it formed a
set, but not a system, as the rules of international law were 'not unified by or deriv[ ed]
theirvalidity from any more basic rule' (Hart, 1994, p 234). Rather he claimed (p 214)
that:
international law not only lacks the secondary rules of change and adjudication which
provide for legislature and courts, but also a unifying rule of recognition specifying 'sources'
of law and providing general criteria for the identification of its rules.
This view was wrong when Hart first expressed it in 1961. Despite criticism, whether
on grounds of inadequacy or inept drafting, 6 it is generally accepted that Article 38
of the Statute of the International Court of Justice provides at least a starting place for
the enumeration of the sources of international law and thus functions as a 'rule of
recognition' for the international legal system, should one wish to adopt a Hartian
analysis. Hart defines the rule of recognition as 'a public, common standard of correct
judicial decision' (Hart, 1994, p 116).7 Article 38 falls squarely within this notion,
particularly as one of the criticisms made of it is that it was constructed precisely to
specify the sources which the judges of the Permanent Court of International Justice,
and subsequently the International Court, should apply in their decision-making,
rather than specify sources for the non-judicial identification and application of
international law. 8
Indeed, much contemporary theoretical analysis of international law is precisely
concerned with the investigation of the sources of international law-the identifi-
cation of what counts, or should count, as international law which is exemplified in
the contemporary debate about relative normativity for instance9 -as opposed to the
conceptual exegesis of distinct substantive themes or fields. The latter type of analysis,
however, is not lacking, finding expression in works such as Professor Franck's
account of the emergence of individualism as a core concept in international law
(Franck, 1999), in the numerous applications of New Haven analysis to such diverse
topics as the law of the sea, human rights, and armed conflict,lO or in Nathaniel
Berman's critical analysis of international responses to domestic conflict (Berman,
1994).
Ultimately, however, all conceptual issues of sources-the identification of what
. 6. For instance, see Carty, 1986, P 13if; Charlesworth and Chinkin, 2000, P 67if; Jennings, 1982, p 9;
Hlggms, 1994, pp 18-19; Tunkin, 1974, pp 118, 123-124.
7 For a commentary on the rule of recognition, see MacCormick, 1981, p lO8ff.
8 For this criticism, see, eg Higgins, 1994, p 18.
9 For instance, see Weil, 1983; Tassioulis, 1996; Beckett, 2001; and Roberts 200l.
10 '
McDougal and Burke, 1962; McDougal, Lasswell, -and Chen, 1969 and 1980; and McDougal and
Feliciano, 1994.
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW
counts as international law-is a question of theory in the sense just indicated.ll The
identification of sources is the determination of general principles which classify
phenomena such as documents, the statements and behaviour of international actors
and so on, as relevant or irrelevant to the enterprise of international law. On this
question of sources, Judge Higgins (1994, p 17) has commented: \
As international lawyers, we have perhaps ceased to notice how very strange it is that we
spend so much time talking about the provenance of the norms that bind the participants in'-·
the international legal system. In domestic legal systems the sources of legal obligation are
treated in a much more matter-of-fact way ... But we have become so preoccupied with
jurisprudential debate about the sources of international law that we have, I think, lost sight
of the fact that it is an admission of an uncertainty at the heart of the international legal
system. I do not mean that there are uncertainties about what particular norms provide
(which there may be), but about how we identify norms.
These uncertainties should not be overstated. There is a general consensus on core
sources doctrine, with doctrinal disagreement attaching to specific, but nonetheless
important, issues-such as the very existence and potential effects of the doctrine of
persistent objection to the formation ofcustomary international law. 12
Doctrinal divergences and disagreements are inevitable because all theoretical
positions are, to some degree, $ubjective inasmuch as they reflect the author's own
predispositions and concerns, some of which can be quite transient. Consider, for
instance, the discussion of persistent objection in the mid-1980s by Charney and
Stein. To an extent, this was informed or influenced by the then-recent conclusion of
the 1982 Law of the Sea Convention and its initial repudiation by various developed
States which objected to the regime it created for deep seabed mining. 13 Charney
and Stein took diametrically opposed views on whether non-signatory States could
or should be bound by any customary regime on deep seabed mining that the
Convention might generate, despite their protests. This specific issue masked more
deeply held views about the nature of international law, and in particular the roles
of sovereignty and State consent in the formation of customary international law.
Charney saw the doctrine as one that held only a temporary or strategic utility, which
a State could employ 'to force an accommodation of interests in the international
community with respect to the evolution of new rules oflaw' (Charney, 1985, p 23).
He stressed consensus and a contextual approach which downplayed the need
for State consent to individual rules. Stein (1985, pp 458-459), on the other hand,
emphasized State sovereignty and 'the central premise of international law theory',
namely:
11 For an express affirmation of this view see, eg Higgins, 1994, p 267.
12 See Norwegian Fisheries, Judgment, ICJ Reports 1951, p 116 at p 131, and North Sea Continental Shelf,
Judgment, ICJ Reports 1969, p 3, paras 29-33: The principal doctrinal commentaries-which adopt opposed
views-are Charney, 1985; Stein, 1985.
13 Both use deep seabed mining to illustrate possible persistent objection claims-see Charney, 1985, p 4,
n 12, and Stein, 1985, pp 462, 474-475.
 lAIN SCOBBIE
that the international legal order lacks a hierarchically superior sovereign authorized to
prescribe rules for the subjects of the order. In the absence of such a sovereign, law must
result from the concurrent wills of states and, at the very least, cannot bind a state that has
manifestly and continuously refused to accept it.
Accordingly, because writers start from different, and often inarticulate, premisses
about the nature and function of international law, it is not surprising that adhesion
to different theoretical presuppositions results in different conclusions about what
counts as international law in the first place (Lauterpacht, 1933, p 57). Having said
that, as Thirlway (1972, p 33) notes:
it is highly unlikely that any modem jurist will ever be able to exert such an influence on his
own or subsequent ages as did the 'founding fathers' of international law, so as to be cited in
the same breath as Grotius, Vattel, Bynkershoek, Pufendorf and Suarez. The age of doctrine is
past, perhaps never to return.
This view of the diminishing importance of doctrine is probably correct insofar as
it concerns the diminishing importance of a single author in terms of the elaboration
of the corpus of substantive law. It cannot, however, be denied that some authors may
exert an important influence on the understanding or development of a given issue or
area oflaw. For instance, Schmitt's views on computer network attacks and informa-
tion warfare undoubtedly inform, if not structure, the current legal appreciation of
these issues. 14
Nevertheless, encoded within expositions of substantive international law-within
general textbooks, specialized monographs, and articles in scholarly journals-are
preconceptions and expectations about the nature and function of international law.
Schmitt, to take an example, does this quite overtly. In discussing the interpretation of
Article 2(4) of the UN Charter, and the extent to which this prohibits the unilateral
use of force in international affairs, he notes that the dominant interpretation is
'positivist'. It starts from the premiss that the text of the Cha.rter must authorize a use
of force for it to be lawful, rather than 'from the postulate that force is permissible
unless a specific Charter prohibition thereon applies' (Schmitt, 1999a, p 901). He
comments (p 902):
Although textually sound, the positivist approach fails to reflect the realities underlying uses
of force. It evidences misguided fidelity to the failed constitutive endeavour to establish a
Charter security schema that would generally dispense with the need for unilateral uses of
force ... strict adherence to the plain text meaning of Article 2(4) can actually operate as a
counterpoise to the Charter's world order aspirations.
In contrast, Schmitt argues that the tenets of the New Haven School, as exemplified in
the writings of Michael Reisman, should be applied to this question. Reisman
emphasizes the context in which force is used, and the values this seeks to advance or
protect. Accordingly, Schmitt argues (p 903):
14 See, eg, Schmitt, 1998; 1999a; 1999b; and 2002.
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW \ .. ~
every threat or use of force is evaluated on its own merits based upon the context in which
it occurs ... the operational code is contextual. Moreover, the categories in which uses of
force are sometimes considered appropriate evolve ... Ultimately ... extra-Charter uses of
force will fall outside the operational code if they fail to advance shared world order values. 15
The application of the theoretical presuppositions of the New Haven School to
determine the legality of the use of force is controversial, and yet this forms the core of
influential doctrine on an emerging topic.
Presuppositions such as these are, however, frequently inarticulate, if not invisible,
in works of substantive exposition, and yet they mould tacit understandings of and
approaches to the rules of international law and their content. Identifying authorial
dispositions is crucial to evaluating the weight to be given to an argument. Indeed,
identifying the very author of a text can be decisive in law, in a way alien to other
disciplines. For instance, in the field of literature, Foucault endorses the notion of the
death of the author, the idea that the identity and personality of the author of a work
of fiction is irrelevant to the authority and interpretation of the text. As Foucault
(1998, p 222) acknowledges:
I seem to call for a form of culture in which fiction would not be limited by the figure of the
author ... All discourses, whatever their status, form, value, and whatever the treatment to
which they will be subjected, would then develop in the anonymity of a murmur. We would
no longer hear the questions that ha':;:e been rehashed for so long: Who really spoke? Is it
really he and not someone else? With what authenticity or originality? And what part of his
deepest self did he express in his discourse ... [W]e would hear hardly anything but the
stirring of an indifference: What difference does it make who is speaking?
Foucault claims that the ascription of an author to a text entails that it 'is not ordinary
everyday speech that merely comes and goes ... On the contrary, it is a speech that
must be received in a certain mode and that, in a given culture, must receive a certain
status' (p 211). The identity of the person or body promulgating some types oflegal
texts has precisely this function. A document's legal significance can depend on its
author; because its author is a judge; because its author is a legislature; because its
author is a foreign ministry and so on. Legal texts, and their authors, only make sense
within the context of the system that gives them authority and meaning.
Literary, artistic, even philosophical texts, on the other hand, can be a great deal
more autonomous. At the extreme, as in the case of the fictitious Australian poet Ern
Malley whose works were fabricated to satirize modernist poetry but yet now form
part of the Australian literary canon, the 'author' need not exist. 16 Or consider the
ascription of Lectures on Jurisprudence to Adam Smith, despite the fact that these
were notes taken at his lectures by students, unrevised and unseen by Smith before
their ultimate publication long after his death in 1896 and 1978.17 Even, given their
15 Schmitt relies on Reisman, 1985. The principal arguments of the New Haven School are considered
below.
16 For details of this literary hoax, see http://jacketmagazine.com/17/index.html.
17 The authoritative modern edition of both sets of lecture notes was only published in the Glasgow
edition of Smith's works in 1978.
 66 lAIN SCOBBIE
propensity for jokes and badinage, would it make a difference to our reading of
Foucault if we discovered that he was really a long-lost Marx brother, as opposed to
merely being influenced by Marx and thus, we could surmise, intent on doing to
philosophy what his brother Harpo generally intended to do to the nearest available
blonde? Or would his writings still be taken seriously, just as those of 'Ern Malley' are
in literature?
In some circumstances, authorial dispositions and concerns are important to gain a
full understanding of a text, or to locate it within a framework where it might be
properly understood. Thus, in exploring David Kennedy's views on the international
human rights system, Hilary Charlesworth claimed that the 'most intriguing aspect'
of the article in question 'is the self-portrait of its author' (Charlesworth, 2002, p 127
in response to Kennedy, 2002). Some would argue that all readings of a text are partial,
and that a search for authorial intent, even in law, cannot generate a 'correct' inter-
pretation (eg Balkin, 1986, p 772). There is a degree of truth in this, but it is equally
true that legal texts, unlike literary texts, form part of an inter-locking system of
meaning and are not free radicals that bear the meaning anyone chooses to put upon
them. There is a difference between a legal text such as Article 51 of the UN Charter,
whose interpretation is admittedly contested in regard to matters such as whether it
would allow a kinetic (bullets, bombs, and things that go bang) response in self-
defence to a non-kinetic (computer network) attack, and a literary text which can
bear any meaning one chooses, such as the opening lines of Gertrude Stein's poem
Susie Azado:
Sweet sweet sweet sweet sweet tea.
. Susie Azado.
Sweet sweet sweet sweet sweet tea.
Susie Azado.
Susie Azado which is a told tray sure.
A lea:q. on the shoe this means slips slips hers.
When the ancient light grey is clean it is yellow, it is a silver seller.
This is a please this is a please there are the saids to jelly.18
Although it can be fun to play with Stein's language, probably not even she knew
what she was writing or what it 'really' meant, if it really 'means' anything. It is a
poem: it does not need to mean anything. Legal texts, on the other hand, do need to
have an identifiable meaning, or range of acceptable meanings, because law is an
instrumental activity aimed at practical outcomes. Accordingly, the more overtly a
writer uncovers his or her theoretical assumptions, perhaps more honest the writing,
as his or her model of international law is exposed on the page for all to see. Law and
legal theory do not exist in a value-free vacuum but are inevitably concerned
with political concerns and conditions. 19 It is often the case that an issue emerges that
18 Stein, 1998 (1903-32), p 362.
19 For instance, for an overview of the political context of the development of jurisprudential ideas, see
Olivecrona, 1971, ch 1; and also Tuck, 1999.
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW
is perceived to require regulation, and the contours of its legal analysis are deter-
mined by recourse to broadly political values. An early example is Vitoria's De Indis
(On the American Indians) (1537) which applied Scholastic natural law reasoning
to undermine the legitimacy of Spanish claims to sovereignty over its American
possessions:
Vito ria' s writings on power and the rights of conquest effectively set the agenda for most
subsequent discussions on those subjects in Catholic Europe until the late seventeenth
century ... [A]lthough it is clearly false to speak of Vitoria as the father of anything so
generalized and modern as 'International Law', it is the case that his writings became an
integral part of later attempts to introduce some regulative principle into international
relations.zo
Or, to take a more contemporary example, should non-kinetic hostile acts attributable
to a State and directed against another be held to breach Article 2(4) of the UN
Charter?
III. THE LEGAL STRUCTURE OF THE
COLD WAR: LIBERAL DEMOCRACY VERSUS
MARXIST- LENINISM
To illustrate the formative power of theory, it is useful to contrast two very different
but articulate accounts of international law, namely the New Haven School which was
elaborated principally by Myres McDougal and Harold Lasswell in Yale Law School,
and the Soviet theory of international law propounded by GI Tunkin. Products of the
Cold War, these were distinctive theories of international law which set out to bolster
and justify the external projection of the political values of the United States and
Soviet Union. As such they embody profoundly different political aims and objectives:
this is abundantly clear in their approach to sources and methodology.
It could be argued that the chasm between the two theories runs deeper, that there
is an architectonic difference between the two, as the New Hayen School sees law ·as
facilitative whereas Soviet theory amounts to a constitutive theory. Posner (1990,
P 94) explains the facilitative approach as claiming that law provides:
a service to lay communities in the achievement of those communities' self-chosen ends
rather than as a norm imposed on those communities in the service of a higher end.
This notion of facilitative law can be associated with various jurisprudential strands in
the United States, perhaps principally with the process of private ordering elaborated
by Henry Hart and Albert Sachs. As Duxbury (1995, p 256) comments, their notion
of:
20 Vitoria, 1991, p xxviii: De Indis is at p 231£1'. See also Tuck, 1999, pp 72-75.
 68 lAIN SCOBBIE
private ordering-the use of 'self-applying regulation' by private individuals in the govern-
ment of their own activities-is the principal method of social control in a democratic
society.21
The New Haven goal of clarifying and implementing a world order of human digmty
could be seen as falling squarely within this notion. In a celebrated article, McDougal
and Lasswell (1981, p 24)22 define 'human dignity' as 'a social process in which values
are widely and not narrowly shared, and in which private choice, rather than coercion,
is emphasized as the predominant modality of power'. New Haven is not, however,
a facilitative theory. Its raison d'etre is the pursuit of an imposed 'higher norm', the
defence and maintenance of (American) liberal democracy as a bulwark against
the spread of communism. As Falk (1995, p 2004) observes, New Haven analysis is
constructed around an:
ideological bipolarity of a world order that pits totalitarian versus free societies as the
essential struggle of our time, a view that anchors the McDougal and Lasswell jurisprudence
in the history of the Cold War era.
A. THE NEW HAVEN SCHOOL
The genesis of New Haven lay in the Second World War and the emergence of
communism as an international political force. McDougal and Lasswell argued that,
when US law schools reopened after the war, they should be 'a place where people
who have risked their lives can wisely risk their minds' (Lasswell and McDougal, 1943,
p 292). They perceived the war as (p 211):
a propitious moment to retool our system oflegal education. America's huge plants for the
fabrication of lawyers are practically closed for the duration ... In the rush of conversion
from war to peace the archaic conventions and confusions of the past may win out over the
vital needs of our civilization ... War is the time to retool our educational processes in the
hope of making them fit instruments for their future job.
This future job, the aim of legal education according to McDougal and Lasswell
(p 206),23 was to provide systematic training for policy-makers attuned to 'the needs
of a free and productive commonwealth':
The proper function of our law schools is, in short, to contribute to the training of policy-
makers for the ever more complete achievement of the democratic values that constitute the
professed ends of American polity.
These values should be so reinforced that the student applies them automatically to
'every conceivable practical and theoretical situation' (p 244). As lawyers influence
or create policy when indicating whether a proposed course of action is or is not
21 For a critical account of Hart and Sachs' notion oflegal process, see Duxbury 1995, p 251ff.
22 This article was first published in (1959) 53 AIIL l.
23 See also FaIk, 1995, P 1993.
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW
lawful (p 209), the law school curriculum should aim towards the implementation
of 'clearly defined democratic values in all the areas of social life where lawyers have
or can assert responsibility' (p 207). Policy and value permeate law, therefore there are
no autonomous or neutral theories of law which can ignore the policy consequences
of rules. 24 Therefore (p 212):
In a democratic society it should not, of course, be an aim of legal education to impose a
single standard of morals upon every student. But a legitimate aim of education is to seek to
promote the major values of a democratic society and to reduce the number of moral
mavericks who do not share democratic preferences. The student may be allowed to reject
the morals of democracy and embrace those of despotism; but his education should be such
that, if he does so, he does it by deliberate choice, with awareness of the consequences for
himself and others, and not by sluggish self-deception.
Despotism breeds societal instability given the climate of fear and uncertainty in
which totalitarian leaders emerge and in which they must survive (McDougall and
Lasswell, 1981, pp 17-18). For McDougal and Lasswell the choice was one between
nuclear annihilation and the global promotion of US democratic values (Falk, 1995,
P 2002; Duxbury, 1995, pp 195-198). They, in an act of 'ideological partisanship'
(Falk, 1995, P 2003), chose the latter.
Although McDougal and Lasswell initially (1943, passim) envisioned the com-
prehensive application of their theory to reform the entire law school curriculum, it
rapidly became focused specifically on international law (Duxbury, 1995, p 191). The
practical aim of the New Haven School is to advance 'a universal world order of
human dignity' which secures the widespread enjoyment of values by individuals.
Human dignity, however, is not foundational:
We postulate this goal, deliberately leaving everyone free to justify it in terms of his preferred
theological or philosophical tradition. 25
This goal reflects the New Haven School's basis in, and intended refinement of, the
American Legal Realist school of jurisprudence and its inter-twining of law and the
social sciences, especially economics. 26 Realism rejected formalist accounts of law
which claimed to be value neutral and relied on the logical exegesis of legal principle
to explain the operation of the courts and legal system. One of the principal strands of
realism-rule scepticism-argued that uncertainty lay in the very formulation of
rules, and thus judicial decisions could not lay claim to be simply the inexorable
application of the law to the issue in question. This is reflected in Lasswell and
McDougal's admonition (1943, p 213) that:
24 McDougal and Reisman, 1983, p 122.
25 McDougal and Lasswell, 1981, p 24: compare Lasswell and McDougal, 1943, p 213 on the non-
derivational clarification of specific values to be pursued.
26 On American Legal Realism, see Duxbury, 1995, chs 1 and 2: more elementary accounts of this school
may be found in standard textbooks on jurisprudence, such as Freeman, 2001, ch 9.
 70 lAIN SCOBBIE
From any relatively specific statements of social goal (necessarily described in a statement of
low-level abstraction) can be elaborated an infinite series of normative propositions of ever
increasing generality; conversely, normative statements of high-level abstraction can be
manipulated to support any specific social goal.
Realism, contrary to formalism, laid stress on the social consequences of the law
which should be taken into account in judicial decisions, and thus emphasized
empiricism. This aimed at determining the real factors involved in judgments beyond
the formal appeal to rules, and also at demonstrating the social impact that alterna-
tive judicial choices might have. Law was seen as a form of social engineering
that could be used as a tool to attain desired societal goals. The New Haven School
built on this tradition in American jurisprudence by rejecting the notion that law
is merely a system of rules, by trying to achieve a more empirical account of the
operation of law in society, and by postulating the instrumental aim of achieving
human dignity. 27
The New Haven School displaces the conception of law as a system of rules in
favour of one where law is a normative social system which revolves around trends of
authoritative decisions taken by authorized decision-makers including, but not
restricted to, judges. There is, after all, more to law than what happens in court
rooms- 'If a legal system works well, then disputes are in large part avoided' (Higgins,
1994, p 1 (emphasis in original». International lawyers, giving legal advice that
moulds policy and action, are more likely to be in foreign ministries than appearing
before the International Court of Justice. Law is a continuing process of decisions
involving choices aimed at realizing the common value of human dignity. As
McDougal and Lasswell (1981, p 19) assert:
the major systems of public order are in many fundamental respects rhetorically unified. All
systems proclaim the dignity of the human individual and the ideal of a worldwide public
order in which this ideal is authoritatively pursued and effectively approximated. They differ
in many details of the institutionalized patterns of practice by which they seek to achieve
such goals in specific areas and in the world as a whole.
The New Haven process of decisions has been likened to the Heraclitan aphorism
that one never steps into the same river twice, because the river moves on. For New
Haven adherents, because the social context of decisions change, and because the
trends and implications of past decisions can be unclear, the quest for human dignity
necessitates the rejection of a model of law that comprises simply the neutral or
impartial application of rules. Rules are:
inconsistent, ambiguous, and full of omissions. It was Mr. Justice Cardozo who aptly
remarked that legal principles have, unfortunately, the habit of travelling in pairs of oppos-
ites. A judge who must choose between such principles can only offer as justification for his
choice a proliferation of other such principles in infinite regress or else arbitrarily take a
27 For an exposition and defence of New Haven as an empirical theory of law, see Morison, 1982,
pp 178-188.
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 71
stand and state his preference; and what he prefers or what he regards as 'authoritative' is
likely to be a product of his whole biography.28
Rules are only 'shorthand expressions of community expectations' and thus, like
any shorthand, are inadequate as a method of communication (Duxbury, 1995,
p 194). Rules simply cannot be applied automatically to reach a decision because that
decision involves a policy choice:
Reference to 'the correct legal view' or 'rules' can never avoid the element of choice (though
it can seek to disguise it), nor can it provide guidance to the preferable decision. In making
this choice one must inevitably have consideration for the humanitarian, moral, and social
purposes of the law.29
The realization of preferred values is not, however, the sole factor in decision-
making: law does constrain. Recourse must be made to trends of past decisions, and
how these relate to the goals the decision-maker wishes to achieve- 'the task is to
think creatively about how to alter, deter, or accelerate probable trends in order
to shape the future closer to his desire' (Lasswell and McDougal, 1943, p 214). Further,
these goals can only be achieved if the decision taken is both authoritative and
controlling:
Authority is the structure of expectation concerning who, with what qualifications and
mode of selection, is competent to make which decisions by what criteria and what pro-
cedures. By control we refer to an effective voice in decision, whether authorized or not.
The conjunction of common expectations concerning authority with a high degree of
corroboration in actual operation is what we understand by law. 3D
More succinctly, Higgins (1994, p 5) describes law as 'the interlocking of authority
with power'.31
Thus the New Haven School aims at providing a framework of values and matrix of
effective and authoritative decision-making in pursuit of the democratic ideal it
favours:
Every phase in the processes of authoritative decision is affected both by past and present
distributions of values and by the perspectives (demands, identifications, and expectations)
of community members about future distribution. The outcomes of processes of authorita-
tive decision also, of course, directly affect any future distribution of values among com-
munity members and, in total impact and in the long run, determine and secure the larger
community's public order. 32
28 Lasswell and McDougal, 1943, p 236. This, in itself, appears to be a New Haven refinement of realism.
Hutcheson had argued that, in hard cases, the judge does not decide by an abstract application of the relevant
rules, but decides intuitively which way the decision should go before searching for a legal category into which
the decision will fit-'No reasoning applied to practical matters is ever really effective unless motivated by
some impulse' (Hutcheson, 1928-29, p 285).
29 Higgins, 1994, p 5.
3D McDougal and Lasswell, 1981, p 22.
31 See also Arend, 1999, pp 77-79.
32 McDougal and Reisman, 1983, p 118.
72 lAIN SCOBBIE
In the classic version of the theory expounded by McDougal and Lasswell, a value is
simply 'a preferred event' or, in other words, whatever an individual or decision-
maker desires. A full enumeration of values is impossible- 'if we were to begin to list
all the specific items of food and drink, of dress, of housing, and of other enjoyments,
we should quickly recognize the unwieldiness of the task'. McDougal and Lasswell
claim that any given value will fall within one or more of the categories that they
identify as enlightenment, respect, power, well-being, wealth, skill, affection, and
rectitude. 33 Higgins (1994, p 5) argues this articulation of relevant policy factors,
and their systematic assessment in decision-making, precludes the decision-maker
unconsciously giving preference to a desired policy objective under the guise of it
being 'the correct legal rule'.
B. SOVIET THEORY
The other principal Cold War doctrine- the theory of international law sponsored by
the Soviet Union, rooted in Marxism-Leninism, and reaching its apogee in the works
ofTunkin-was a diametrical opposite to the New Haven School, both in its professed
structure and envisaged political outcome. This orthodoxy, enforced by the Soviet
bloc, relied not on the values encompassed in human dignity to explain international
law, but on the objective rules of societal development and the historical inevitability
of socialism. Thus Tunkin (1974, p 277) explained:
The foreign policy and diplomacy of socialist states is armed with the theory of Marxism-
Leninism and a knowledge of the laws of societal development. Proceeding on the basis of a
new and higher social system replacing capitalism, they adduce and defend progressive
international legal principles which correspond to the laws of societal development and
which are aimed at ensuring peace and friendly cooperation between states and the free
development of peoples. 34
Accordingly (Tunkin, 1974, P 251):
The regulating influence of contemporary general international law is such because it was
formed and is developing further under the decisive influence of the socialist states, the
developing countries, and the other forces of peace and socialism, and as a whole is aimed
at ensuring peace and peaceful coexistence, at the freedom and independence of peoples,
against colonialism in all of its manifestations, and at the development of peaceful inter-
national cooperation in the interests of all peoples. Contemporary international law
promotes the progress of human society, and this progress inevitably is linked to socialism,
leads to socialism, and facilitates the struggle for socialism.
Soviet writers argued that socialism was the inevitable outcome of social processes
and, with its triumph, the State and law (including international law) would be
33 McDougal and Lasswell, 1981, p 20: see also Lasswell and McDougal, 1943, pp 217-232; McDougal and
Reisman, 1983, p 118; Arend, 1999, p 72; and Duxbury, 1995, p 178.
34 For an overview of Marxist theory of law, see Freeman, 2001, ch 12: a clear, succinct, and critical
introduction is Collins, 1984. For an account of the early formation of Soviet concepts of international law,
see Macdonald, 1998.
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 73
eradicated as these are the products of class division, although there would still be
rules of conduct. 35 Until then, international law was 'immortalize[d] ... as an instru-
ment of struggle between states belonging to opposed social systems' (Damrosch
and Miillerson, 1995, p 4) in which the most that could be achieved was peaceful
co-existence between capitalist and socialist States.
Soviet theory is structurally a much more traditional theory than New Haven. It
is firmly rooted in Marxist-Leninist theory to the extent that, at times, it seems simply
to amount to taking the dogma for a walk. Perhaps paradoxically, Soviet theory
appears to be much more conservative than New Haven, placing its emphasis on
rules and State consent to rules, rather th~ the New Haven realization of values by
authorized decision-makers:
both the Soviet government and Soviet doctrine consistently treated the existing corpus of
international law as a system of sufficiently determinate principles and norms which all
states are obliged to observe in their mutual relations, in contrast to some Western scholars
who find international law to be more or less adaptable and argue that law should fit
behaviour rather than the other way ar9und. The Soviet preference for a relatively rigid rule-
bound approach was not merely an outgrowth of traditional jurisprudential conventions,
but also served political and polemical functions. 36
Soviet theory is based in the class struggle, and the Marxist-Leninist tenet that the
mode of production within a society (the economic base) is the principal influence
on the will of the ruling class, and thus on the social institutions (the superstructure)
of that society. Only with the emergence of private property and social classes does the
State emerge 'as an organ of the economically dominant class', along with law which
constitutes the will of this ruling class in defence of its interests. 37
Capitalist and socialist States have different interests, and thus wills, given the
difference in their socio-economic organization - 'the influence of the economic
structure of society and its societal laws affects the process of creating norms of
international law through the will of a state, since the content of this will basically is
determined by the economic conditions of the existence of the ruling class in a given
state' (Tunkin, 1974, p 237). While the dominant economic class determines the will
of a capitalist State, in a socialist State, this comprises 'the will of the entire Soviet
people led by the working class' (p 249 and, eg p 36). One clear consequence of
this divergence in interest is Soviet theory's rejection of 'general principles of law
recognised by civilised nations' (Article 38(1)(c) of the Statute of the International
Court ofJustice) as an independent source of international law. Tunkin (1974, p 199)
argued:
35 Eg Tunkin, 1974, pp 42, 238: see p 232ff generally.
36 Damrosch and Mallerson, 1995, p 9 (footnotes omitted).
37 Kartashkin, 1983, p 81, see pp 79-83 generally; and also Tunkin, 1974, pp 27, 36, 232ff. Kartashkin
(1983, p 81) notes that according to Marxist-Leninist theory, there are five socio-economic formations of
society-primitive communal, slave, feudal, capitalist, and communist. Compare Smith's notion of the four
stages of society found, for instance, in Smith (1978, p 4ff) 'in these severall ages of society, the laws and
regulations with regard to property must be very different' (p 16).
74 lAIN SCOBBIE
the question arises whether in contemporary conditions of the existence of states not only
with different but also with opposed socioeconomic systems there can exist normative
principles common to socialist law and to bourgeois law. One must say very definitely that
normative principles which would be common to the two opposed systems of law, socialist
and bourgeois, do not exist. The principles of these legal systems, even in those instances
when externally they appear to be identical, are fundamentally distinct by virtue of their
class nature, role in society, and purposes.
A common ideology, however, is unnecessary for the development of international
law, bilt the existence of two opposed social systems places limits on the content of
the norms of international law. Because these must be agreed by States on the basis
of equality-(only those international legal norms which embrace the agreement of
all states are norms of contemporary general international law' -they can be neither
socialist nor capitalist (pp 250-251).38
Consent between States, albeit reflecting the interests of their ruling classes (pp 36,
291), to specific rules is the keystone of Soviet theory which, furthermore, recognizes
only treaties and custom as sources of international law. There is no room for some
authoritative decision-maker to determine or influence the content of international
law-for instance, (The [International] Court does not create international law; it
applies it' (p 191). Norm creation necessarily requires State consent, whether express
or tacit (p 124 and Chapter 4, passim). Accordingly (p 128):
the majority of states in international relations cannot create norms binding upon other
states and do not have the right to attempt to impose given norms on other states. This
proposition is especially important for contemporary international law, which regulates
relations of states belonging to different and even opposed social systems.39
One consequence of this strict requirement of consent is that Soviet theory endorses
the doctrine of persistent objection to the formation of customary international law
(p l30).
Tunkin stresses that international law, as it exists between socialist and capitalist
States, rests on democratic principles of peaceful co-existence which include the
principles of the sovereign equality of States and non-interference in their domestic
affairs (pp 29 and 251). The application and implications of these principles, how-
ever, differ in the international relations between States from opposed socio-economic
systems and the relations between socialist States inter se. Relations between socialist
States are not predicated on the notion of peaceful co-existence but on the principle of
socialist or proletarian internationalism (p 47).40 Thus Kartashkin (1983, pp 82-83)
maintains that:
38 See also TunIcin, 1974, ch 2, passim; Kartashkin, 1983, p 96ff.
39 See also Tunkin, 1974, P 210 and the claim that natural law theorists of international law undermine its
consensual basis 'thereby creating greater possibilities for an international legal justification of the imperialist
policy of diktat, coercion, and military adventurism'.
40 The theory of socialist internationalism is expounded at length at p 427ff.
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 75
principles of general international law, when applied in relations among socialist countries,
expand their shape and acquire new socialist content. They go beyond general principles of
international law. For example, the general principle of international law-the equality
of states--':"'acquires a new content when applied in relations among socialist states. Parallel
to the respect for legal equality, its implementation presupposes the achievement of factual
equality of all socialist states and the equalization of their economic level. The principles
of socialist internationalism are used by socialist states to strengthen their relations, to
protect them from anti-socialist forces, and to ensure the construction of socialism. Thus, in
relations among socialist states two types of norms function-the socialist and general
principles and the norms of international law.
The principle of proletarian internationalism is that of (fraternal friendship,
close cooperation, and mutual assistance of the working class of various countries
in the struggle for their liberation' (Tunkin, 1974, p 4).41 This manifests itself in
principles of socialist legality which, in the relations between socialist States, are
lex specialis to the norms of general international law (pp 445-456).42 These principles
are, (first and foremost' , those of (fraternal friendship, close cooperation, and
comradely mutual assistance' (pp 434-435).43 Their implementation requires that
(p 430):
Socialist states carry out close cooperation in the field of foreign policy and defence meas-
ures for the purposes of defending the gains of socialism from possible feeble imperialist
swoops.
At its most stark, this aim was expressed in the Brezhnev doctrine, the claim that
socialist States could, if necessary, use force to ensure that a socialist State did not
divert from socialism and revert to capitalism. This doctrine asserted that a threat to
socialism in one State was 'a threat to the security of the socialist community as a
whole'44 and thus a common problem. It therefore constituted 'the joint defense of the
socialist system from any attempts of forces of the old world to destroy or subvert any
socialist state of this system' (Tunkin, 1974, p 434). Although the Brezhnev doctrine
was promulgated following the forcible suppression of moves towards democratiza-
tion in Czechoslovakia in 1968,45 this principle of socialist internationalism was
employed to justify the Soviet intervention in Hungary in 195646 and its 1980 invasion
of MghanistanY
41 See also Butler, 1971, pp 796-797; cfHazard, 1971.
42 See also Osakwe, 1972, p 597.
43 See also Butler, 1971, p 797; Osakwe, 1972, p 598.
44 Brezhnev doctrine as quoted in Schwebel, 1972, pp 816-817; see also Franck, 1970, pp 832-833. Franck
argues that the United States foreshadowed the Brezhnev doctrine in its policy towards the Americas-see
ibid, pp 833-835, and pp 822-835 generally.
45 For instance, Butler, 1971, p 797; Franck, 1970, p 833; and Schwebel, 1972, p 816.
46 TunIcin, 1974, pp 435-436.
47 See Brezhnev, 1980, pp 6-9.
 lAIN SCOBBIE
C. NEW HAVEN AND SOVIET APPROACHES COMPARED
Accordingly, just as New Haven has the teleological aim of achieving human dignity
(and thus the external projection of democratic liberal values), so Soviet theory
has the aim of realizing proletarian internationalism. While New Haven rejects any
foundational basis for human dignity- 'everyone [is] free to justify it in terms of
his preferred theological or philosophical tradition' (McDougal and Lasswell, 1981,
p 24), Soviet theory maintains that, by way of objective rules of societal develop-
ment, the goal of proletarian internationalism is historically inevitable. In the mean-
time, according to Tunkin (1974, p 48) common ground must be sought in which
competing social systems may peacefully co-exist:
For thousands of years jurists have debated about definitions of law, but notwithstanding
this law has existed. States, politicians, and jurists of different countries can hold various
theories relating to the nature of international law, but this difference of opinion does not
create insuperable obstacles to achieving agreements relating to the acceptance of specific
rules of conduct as international legal norms.
For instance, the absence of a common ideology is apparent in the international
regulation of human rights. As Kartashkin (1983, p 95) notes:
Marxist-Leninist theory proceeds from the premise that human rights and freedoms are
not inherent in the nature of man and do not constitute some sort of natural attributes.
Rights and freedoms of individuals in any state are materially stipulated and depend
on socio-economic, political and other conditions of the development of society, its
achievements and progress. Their fundamental source is the material conditions of society's
life.
McDougal and Lasswell would undoubtedly see this as an example where 'allegedly
universal doctrines' such as sovereignty, domestic jurisdiction, and non-intervention
are used 'to resist the institutional reconstructions which are indispensable to secur-
ity'. In this case, the Soviet claim is that the content of internationally agreed human
rights fall within the domestic jurisdiction of the implementing State (Tunkin, 1974,
pp 82-83). McDougal and Lasswell (1981, p 18) resist such 'false conceptions of the
universality of international law':
The discrediting of claims to universality which are in fact false is ... a first necessary step
toward clarifying the common goals, interpretations, and procedures essential to achieving
an effective international order.
Indeed, Soviet confidence that it was 'master in its own house' in human rights
matters led the Politburo, against the advice of the KGB, to conclude the 1975 Helsinki
Accords. This has been seen as a 'strategic mistake' by the USSR precisely because
it opened it up to human rights condemnation, granting succour to its dissidents, and
thus contributing to its own dissolution. 48
48 Andrew and Mitrokhin, 1999, p 420, and Chapter 20 passim.
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 77
On the other hand, the policy science approach of New Haven was an anathema
to Soviet thinking. Tunkin (1974, p 297) argued:
Even though states may use international law as a support for foreign policy, this does not
mean that international law is merged with policy. Mixing international law with policy
inevitably leads to a denial of the normative character of international law, that is to say, to a
denial of international law, which becomes buried in policy and vanishes as law.
Professor McDougal's concept of the policy approach to international law is an example
of this kind of mixing or blending of foreign policy arid international law.
. .. McDougal, while not denying the importance of international law in so many
words and sometimes also stressing it, in fact drowns international law in policy. In
consequence thereof, international law in McDougal's concept is devoid of independent
significance as a means of regulating international relations; it disappears into policy and,
moreover, is transformed in to a means of justifying policies which violate international
law.
This criticism that New Haven analysis results in the eradication of international law
is commonplace,49 but is perhaps equally applicable to Soviet theory despite its
reliance on 'norms'. Falk (1995, P 2001) notes that, although not inevitable, the out-
come of the application of New Haven analysis to a given issue 'had an uncomfortable
tendency to coincide with the outlook of the US government and to seem more
polemically driven than scientifically demonstrated'. 50 It cannot be doubted that the
same was true of Soviet international law. As Damrosch and Mullerson (1995, pp 8-9)
comment:
The political climate of the Cold War undoubtedly contributed to the sense that the inter-
national legal order was far from approaching an optimal or perhaps even minimal level of
determinacy. Especially in highly politicized areas such as the use of force or intervention, as
well as in many aspects of human rights law, the content and clarity of principles and norms
suffered from the fact that states proceeded from opposed interests; while they wanted to
delineate parameters for the behaviour of the other side, they were wary of tying their own
hands. The positions of the two sides were not only different but often irreconcilable; yet
those positions were sometimes dictated more by ideological considerations than by real
national interests.
The New Haven tendency to make law malleable in its pursuit of human dignity,
McDougal and Lasswell's 'penchant for applyin'g their theory in justification of U.S.
foreign policy' (Falk, 1995, P 1997), undoubtedly gives an impression of normative
indeterminacy. Could it be argued, however, that this mistakes the anomaly for the
paradigm? One of the criticisms of formalism made by realist scholars was that it
focused on the judgments of appellate courts which concentrate on contestable points
oflaw (Duxbury, 1995, pp 57,135-137). Is this not also true of the common impres-
sion gained of the New Haven School (and equally of Soviet theory for that matter)?
As Higgins (1994, pp 6-7) notes, New Haven does not require:
49 See, eg, Arend, 1996, p 290; Bull, 2002, pp 153-154; and Kratochwil, 1989, pp 193-200.
50 See also Faik, 1995, P 2001, see also p 1997.
 lAIN SCOBBIE
one to find every means possible if the end is desirable. Trends of past decisions still have an
important role to play in the choices to be made, notwithstanding the importance of both
context and desired outcome. Where there is ambiguity or uncertainty, the policy-directed
choice can properly be made.
The application of most international law is not problematic: standardized rules are
applied to standardized situations otherwise, as Franck (1990, p 20) points out, 'for
example, no mail wo~d go from one state to another, no currency or commercial
transactions could take place ... [V]iolence, fortunately, is a one-in-a-rnillion devi-
ance from the pacific norm'. Higgins' point appears to be that if ambiguity exists, then
the decision-maker can make a choice which implements or is justified by existing
legal material. Choice is inevitable in legal decision-making because rules are not fully
determined - for instance, is or is not a computer network attack a prohibited use
of force under Article 2(4) of the UN Charter? In these circumstances, Higgins (1994,
p 5) thinks it:
desirable that the policy factors are dealt with systematically and openly. Dealing with them
systematically means that all factors are properly considered and weighed, instead of the
decision-maker unconsciously narrowing or selecting what he will take int9 account in
order to reach a decision that he has instinctively predetermined is desirable. Dealing with
policy factors openly means that the decision-maker himself is subjected to the discipline of
facing them squarely.
While one can disagree with the policy factors Higgins thinks relevant, at least this
approach has the virtue of making these factors candid. Analysis and evaluation are
easier because one knows what factors are in play.
Despite their differences, the New Haven and Soviet schools share a common
approach: both are instrumental theories of law, aimed at guiding and informing
practice. Not all legal philosophy has this focus, despite the fact that this might cause
disappointment. As Gardner (2001, p 204) observes:
Lawyers and law teachers ... think (rightly) that legal practice is a practical business,
and they expect the philosophy of law to be the backroom activity of telling front-line
practitioners how to do it well, with their heads held high. When a philosopher of law
asserts a proposition that neither endorses nor criticises what they do, lawyers and law
teachers are often frustrated ... They cannot accept that legal philosophy is not wholly
(or even mainly) the backroom activity of identifying what is good or bad about legal
practice, and hence of laying on practical proposals for its improvement (or failing that,
abandonment).
IV. NEW ORDER FOR A NEW WORLD?
Much contemporary theory of international law is more detached from practice
or doctrinal justification than New Haven or the Soviet school. Some strands of the
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 79
New Stream or New Approaches in International Law school fall squarely within this
tendency. Indeed for some, it appears to amount to a manifesto: 51
students of international law should reformulate their sense of cause and effect in inter-
national affairs: rejecting reliance upon visions both of State interests that we too often take
to propel doctrine and of the law that we take to restrain statesmen.
This tendency towards detachment, the perceived disinclination to making clear
commitments to anything but being 'critical' has caused adverse comment. For
instance, Higgins (1994, p 9) argues that this approach:
leads to the pessimistic conclusion that what international law can do is to point out the
problems but not assist in the achievement of goalS.52
The leading UK 'non-instrumental' theorist of international law is Philip Allott whose
work is avowedly iconoclastic. Unlike New Stream scholars, however, Allott is imbued
with a regenerative idealism. He argues for the rejection of the State as the primary
unit of authority, and thus for the reconstruction of world affairs. At the heart of
Allott's project lies an elemental conviction in the power of ideas both to structure
and to change-to restructure-the world (2001, p xxvii):
We make the human world, including human institutions, through the power of the human
mind. What we have made by thinking we can make new by new thinking.
Allott (2001, P 243, para 13.105) argues that the adoption of the Vattellian concept of
international relations, with its emphasis on the centrality of the State, was at least a
mistake, if not a tragedy:
The eventually dominant Vattel tradition is not merely a tradition of international law. It
implies a pure theory of the whole nature of international society and hence of the whole
nature of the human social condition; and it generates practical theories which rule the
lives of all societies, of the whole human race. It is nothing but mere words, mere ideas, mere
theory, mere values-and yet war and peace, human happiness and human misery, human
wealth and human want, human lives and human life have depended on them for two
centuries and more.
This tradition has generated a wrong consciousness, a fundamental misconception
about what matters: for Allott, what matters is humanity rather than a collection of
States, the pursuit of whose interests has all too often harmed humans. The edifice of
the State does not have its agenda set by the people of the society it encompasses, but,
Allot argues, (p 243, para 13.105(1) ), rather by the much narrower class of politicians
and officials:
The state (public realm under the authority of a government) having developed as a way of
internally organizing a certain sort of society ... came to be conceived also as the external
51 Kennedy, 1985, p 381; see also Kennedy, 1999 and 2000. Good overviews of New Stream work are Cass,
1996; Paulus, 2001; and Purvis, 1991.
52 This is precisely the criticism m~de of Kennedy in Charlesworth, 2002. An early, and extreme, denunci-
:\ ation of critical scholars as engendering legal nihilism is Carrington, 1984.
80 lAIN SCOBBIE
manifestation of the given societies. The state was turned inside. out, like a glove. The
governments of the statally organizing societies recognize in each other that which is state,
not that which is society.
Just as the State is not co-extensive with society, international unsociety (to use Allott's
term), where States dominate, is markedly less representative of humanity. This was
an inevitable outcome of the reception of Vattellian thought in international affairs
(pp 248-249, para 13.106):
It is a reality which was welcome to the ruling classes of western Europe, the classes who still
had most control over social reality-forming, including the self-conceiving of society in
theory and including reality forming far beyond the territorial limits of western Europe.
It was most welcome of all to the political and administrative sections of those ruling
classes, who could speak to each other and compete with each other and conflict with each
other across frontiers, safe in the fastnesses of their self-contained internal-external state-
systems.
Eunomia is an idealist edict. Allott seeks a (revolution, not in the streets but in the
mind' (p 257, para 14.9) in order to achieve (a social international society [where]
the ideal of all ideals is eunomia, the good order of a self-ordering society' (p 404, para
18.77). This is predicated on Allott's fundamental belief (p 180, para 12.5) that:
international society has the ultimate capacity to enable all societies to promote the ever-
increasing well-being of themselves and their members, the ultimate responsibility to pre-
vent societies from doing harm to themselves and to other societies. It is in international
society that humanity's capacity to harm itself can achieve its most spectacular effects. And
it is in international society that the ever-increasing well-being of the whole human race can,
must, and will be promoted.
Allott places his faith in the power of the human mind to reform the future by
imagining what that future should be, and then use reason to implement this idea-
(Societies live within the theories they make. A society generates a theory-filled reality
which shapes its willed action which, in turn, shapes its actual everyday living' (p 38,
para 2.64). Human consciousness thus provides the template for human action and
human reality.
The adoption of sovereignty as the structural premiss of international affairs,
explains (the theoretical incoherence and the practical impotence of international law'
(p 302,para 16.14). Sovereignty is the preserve of States, and projects (an authority-
based view of society' (p 199, para 12.53) which:
tend[s] to make all society seem to be essentially a system of authority, and ... to make
societies incorporating systems of authority seem to be the most significant forms of society,
at the expense of all other forms of society, including non-patriarchal families, at one
extreme, and international society, at the other.
Thus the notion of the State, organized as sovereign authority over specified terri-
tory, trumps membership of other possible societies which are not as exclusive, and
whose consciousness and ideals may differ from those of the State. Moreover, the
SOME COMMON HERESIES ABOUT INTERNATIONAL LAW 81
consciousness of the State is impoverished, concentrating on State rather than human
interests. At least in some States, however, the notion of sovereignty has been sur-
passed by that of democracy which relocates power in society rather than in the
simple fiat of authority. This introduces a profound shift in social consciousness
as democracy (seeks to make the individual society-member seek well-being in
seeking the well-being of society. Democracy seeks to make society seek well-being
in seeking the well-being of each individual society-member' (p 217, para 13.31).
International society, on the other hand, has chosen (to regard itself as the state
externalized, undemocratized, and unsocialized' (p 240, para 13.98). This has given
rise to the perception (p 244, para 13.105(6)) that domestic and international
affairs are (intrinsically and radically separate' as citizens can only participate in
international affairs through the mediation of their governments. Further (p 247,
para 13.105(13)):
The purposes of the interstatal unsociety are simply the aggregated purposes conceived
within the government-controlled public realms of the state-societies, purposes related to
the survival and prospering of each of those state-societies rather than the survival and
prospering of an international society of the whole human race.
This exacerbates the division between the domestic and international spheres, and
entails the consequence that morality is discontinuous between the two. Accordingly
(p 248, para 13.105(16)), (governments, and the human beings who compose them,
are able to will and act internationally in ways that they would be morally restrained
from willing and acting internally, murdering human beings by the million in wars,
tolerating oppression and starvation and disease and poverty, human cruelty and
suffering, human misery and human indignity'. What we are left with is (p 249,
para 13.109):
a world fit for governments. It is an unsociety ruled by a collective of ,self-conceived
sovereigns whose authority is derived neither from the totality of international society nor
from the people but from the inter-mediating state-systems.
The result (p 296, para 16.1) is that (international law is left speaking to governments
the words that governments want to hear' and (p 297, para 16.3) remains marginal
in the international system: (International law has been neither very threatening
nor very useful to the politicians and the diplomats'. International law Cpp 298-299,
para 16.8) is:
a mystery to international society. The people of the world do not know themselves as
participants in its making, only as participants in its effects. It seems to be the business of a
foreign realm, another world, in which they play no personal part.
International law, accordingly, cannot be integrated into the social process of
humanity and is (doomed to be what it has been-marginal, residual, and inter-
mittent' (p 304, para 16.17). As things stand, international law cannot play its proper
part in the realisation of eunomia.
82 lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW

When Eunomia first appeared, Allott's vision was criticized as utopian. It assumes you do write as you have heard it said then you have to change it'.53 This is precisely
that a fully socialized international society will be benevolent and eschew conflict, the point of Allott' s Eunomia. Having looked at the world and found it sadly wanting,
as these arise from the competing interests of States. Allott (p xxxii) denies that the Eunomia provides a blueprint for making it better. Its idealism is not about thinking
criticism of utopianism has any force: the unthinkable, it is about thinking the unthought, and then grasping the challenge
to put these thoughts into practice.
In response to this criticism, it is surely only necessary to say that our experience of the
And thinking, after all, is what theory is all about.
revolutionary transformation of national societies has been that the past conditions the
future but that it does not finally and inescapably determine it. We have shown that we can
think ourselves out of the social jungle.
It is equally true that we can think ourselves into that jungle: the 1917 Russian
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national Law in Policy-oriented Perspec-
tive', in Macdonald and Johnston (eds),
p 103.
MORISON, WL (1982), John Austin (Lon-
don: Edward Arnold).
OLIVECRONA, K (1971), Law as Fact,
2nd edn (London: Stevens).
OSAKWE, C (1972), 'Socialist International
Law Revisited', 66 AJIL 596.
PAULUS, AL (2001), 'International Law After
Postmodernism: Towards Renewal or
Decline of International Law?', 14 Leiden
JIL 727.
POSNER, RA (1990), Cardozo: a Study in
Reputation (Chicago: University of
Chicago Press).
PURVIS, N (1991), 'Critical Legal Studies in
Public International Law', 32 Harvard
JIL 81.
REISMAN, WM (1985), 'Criteria for the
Lawful Use of Force in International Law',
10 Yale JIL 279.
ROBERTS, AE (2001), 'Traditional and
Modern Approaches to Customary Inter-
national Law: a Reconciliation', 95 AJIL
757.
SCHMITT, MN (1998), 'Bellum America-
num: the US View of Twenty-first
Century War and its Possible Implica-
tions for the Law of Armed Conflict', 19
MichiganJIL 1051.
86 lAIN SCOBBIE SOME COMMON HERESIES ABOUT INTERNATIONAL LAW

SCHMITT, MN (1999a), 'Computer Network
Attack and the Use of Force in Inter-
national Law: Thoughts on a Normative
Framework', 3i ColumbiaJ of Transnat'l L
885.
- - (1999b), 'The Principle of Discrimin-
ation in 21st Century Warfare', 2 Yale
Human Rights and Development LJ 143.
- - (2002), Wired Warfare: Computer
Network Attack and Jus in Bello, 84/846
International Review of the Red Cross 365.
SCHWEBEL, SM (1972), 'The Brezhnev Doc-
trine Repealed and Peaceful Co-existence
Enacted', 66 AJIL 816.
SCOBBIE, I (1990), 'Towards the Elimination
of International Law: Some Radical
Scepticism about Sceptical Radicalism',
61 BYIL 339.
SMITH, A (1978), 'Lectures on Juris-
prudence', in Meek, RL, Raphael, DD,
and Stein, P (eds), the Glasgow edition
of The Works and Correspondence of
Adam Smith, vol 5 (Oxford: Clarendon
Press).
STEIN, G (1998), Gertrude Stein: Writings
1903-1932 . (New York: Library of
America).
- - (1936), 'The Geographical History of
America or The Relation of Human
Nature to the Human Mind', in Stein, G
(1998), Gertrude Stein: Writings 1932-
1946 (New York: Library of America),
p 365.
STEIN, T (1985), 'The Approach of a Dif-
ferent Drummer: the Principle of the
Persistent Objector in International Law',
26 Harvard ILJ 457.
TAssIOuLIs, J (1996), 'In Defence of Relative
Normativity: Communitarian Values and
the Nicaragua Case', 16 OxJLS 84.
THIRLWAY, HWA (1972), International
Customary Law and Codification (Leiden:
Sijthoff).
TUCK, R (1999), The Rights of War and
Peace: Political Thought and the Inter-
national Order from Grotius to Kant
(Oxford: Oxford University Press).
TUNKIN, GI (1974), Theory of International
Law (Butler, WE (trans.») (London: Allen
& Unwin).
WARBRICK, C (1991), 'The Theory ofInter-
national Law: is there an English con-
tribution?', in Allott, P et al., Theory
and International Law: an Introduction
(London: BIICL), p 49.
- - (2000), 'Brownlie's Principles of Public
International Law: an Assessment', 11
EJIL 62l.
WElL, P (1983), 'Towards Relative
Normativity?', 77 AJIL 413.
International Law (Oxford: Oxford Uni- KOSKENNIEMI, M (2001), The Gentle Civil-
versity Press) is a collection of essays by izer of Nations: the Rise and Fall of Inter-
distinguished authors which examines national Law 1870-1960 (Cambridge:
the interface between international law Cambridge University Press) is an exten-
and politics. This is for a more advanced sive scholarly analysis of the intellectual
audience than Beck although it remains history of modern international law.
fairly accessible.
RUBIN, AP (1997), Ethics and Authority in
DALLMEYER, DG (ed.) (1993), Reconceiving International Law (Cambridge: Cam-
Reality: Women and International Law bridge University Press) is a readable
(Washington DC: American Society of and slightly idiosyncratic account of the
International Law) is a fairly early and influence of the naturalist and positivist
important group of essays on feminist schools of legal theory on our under-
approaches to international law. The standing of international law.
leading monograph on this issue is
Charlesworth, H and Chinkin, C (2000), TES6N, FR (1998), A Philosophy of Inter-
The Boundaries of International Law national Law (Boulder, Colo.: Westview
(Manchester: Manchester University Press) expounds an essentially Kantian
Press). notion of international law.
Finally, the European Journal of International Law frequently publishes articles that discuss
diverse aspects of the theory of international law, and periodically symposia on specific
figures such as Kelsen (vol 9, 1998), Lauterpacht (vol 8, 1997), and Franck (vol 13, 2002).

FURTHER READING

In addition to the works cited in the biblio-
graphy, the following are useful in pro-
viding a variety of theoretical perspectives
on international law, although this is an
enormous and expanding field.
BECK, RJ, AREND, AC, and LUGT, RD (eds)
(1996), International Rules: Approaches
From International Law and International
Relations (New York: Oxford University
Press) is an excellent introductory
collection of readings and commentary
which covers the principal contemporary
schools of international legal thought.
BYERS, M (ed.) (2000), The Role of Inter-
national Law in International Politics:
Essays in International Relations and
 3
WHAT IS INTERNATIONAL
LAW FOR?
Martti Koskenniemi

SUMMARY

The objectives of international law appear differently depending on one's standpoint.

International law certainly seeks to realize the political values, interests, and preferences
of various international actors. But it also appears as a standard of criticism and means.of
controlling those in powerful positions. Instrumentalism and formalism connote two
opposite sensibilities of what it means to be an international lawye~ and two cultures of
professional practice, the stereotypes of \the advisor' to a powerful actor with many
policy-alternatives and \the judge' scrutinizing the legality of a particular international
behaviour. Beyond pointing to the oscillation between instrumentalism and formalism
as styles of legal thought and practice, howeve~ the question \what is international law
for?' also invokes popular aspirations about peace, justice, and human rights, and thus
acts as a platform for an international political community. Whatever its shortcomings,
international law also exists as a promise of justice, and thus as encouragement for
political transformation.

I. THE PARADOX OF OBJECTIVES

Attempting to answer the question in the tide one meets with a familiar paradox. On
the one hand, it seems indisputable that international law 'has a general function to
fulfil, namely to safeguard international peace, security and justice in relations
between states' (Tomuschat, 1999, p 23). Or as Article 1 of the UN Charter puts it, the
organization has the purpose to 'be a centre for harmonizing the actions of nations in
the attainment of ... common ends' such as international peace and security, friendly
relations among nations, and international cooperation. Such objectives seem self-
evident and have never been seriously challenged. On the other hand, it is hard to see
how or why they could be challenged-or indeed why one should be enthusiastic
 90 MARTTI KOSKENNIEMI
about. them-because they exist at such high level of abstraction as to fail to indicate
concrete preferences for action. What do 'peace', 'security', or 'justice' really mean? As
soon as such words are defined more closely, disagreement emerges. To say that
international law aims at peace between States is perhaps already to have narrowed
down its scope unacceptably. Surely it must also seek to advance 'human rights as well
as the rule of law domestically inside States for the benefit of human beings ... '
(Tomuschat, 1999, p 23). But what if advancing human rights would call for the
destruction of an unjust peace?
In the end, very little seems to depend on any general response to the question
'what is international law for?' The real problem seems always to be less about
whether international law should aim for 'peace', 'security', or 'human rights' than
about how to resolve interpretative controversies over or conflicts between such
notions that emerge when defending or attacking particular policies. There is no
disagreement about the objective of peace in the Middle East between Israel and the
Palestinian people. But if asked what 'peace' might mean for them, the protagonists
would immediately give mutually exclusive answers. Nor is the 'Asian values' debate
about being 'for' or 'against' human rights but about what might such rights be and
how they should be translated into social practices in the relevant societies. To enquire
about the objectives of international law is to study the political preferences of int~r­
national actors-what it is that they wish to attain by international law. And because
those preferences differ, the answer to the question in the title can only either remain
controversial or be formulated in such broad terms as to contain the controversy
within itself-in which case it is hard to see how it could be used to resolve it.
lt would therefore be wrong to think of the paradox of objectives as a technical
problem that could be disposed of by reflecting more closely on the meaning of words
such as 'peace', 'security', or 'justice' or by carrying out more sophisticated social or
economic analyses about the way the international world is. Such notions provide an
acceptable response to the question 'what is international law for?' precisely because
of their ability to gloss over existing disagreement about political choices and dis-
tributional priorities. If they did not work in this way, and instead permanently
preferred some choices over other choices, they would no longer be able to do the
service we expect of them. In accordance with the founding myth of the system, the
Peace of Westphalia in 1648 lay the basis for an agnostic, procedural international law
whose merit consisted in its refraining from imposing any external normative ideal on
the international society. The objectives of that society would now arise from itself:
there were no religious or other transcendental notions of the good that international
law should realize. If there is an 'international community', it is not a teleological but
a practical association, a system not designed to realize ultimate ends but to co-
ordinate practical action to further the objectives of existing communities.} Sovereign
equality builds on this: because ¢.ere are no natural ends, every member of the
} This is why it is so easy to discuss it in terms of the ethics of Immanuel Kant, an ethics of universalizable
principles of right action rather than as instrumental guidelines for attaining the Good. Cf, eg, O'Neill, 2000.
WHAT IS INTERNATIONAL LAW FOR? 91
international society is free to decide on its own ends, and to that extent, they are all
equal. The law that governs them is not natural but artificial, created by the sovereigns
through the processes that are acceptable because neutral (cf, eg, Nardin, 1983). To say
that international law is for 'peace', 'security', and 'justice' is to say that it is for peace,
security, and justice as agreed and understood between the members of the system. 2
What this means for international legal argument can be gleaned, for instance, from
the opinion of the International Court of Justice in th~951). Here
the Court was called upon to examine the admissibility of reservations to the 1948
Convention on the Prevention and Punishment of the Crime of Genocide. The Court
first outlined what seemed a natural consequence of the principles of neutrality and
sovereignty, namely that no reservation should be effective against a State that has not
agreed to it. To stay with this understanding, however, might have undermined the
Convention by creating a system in which some reservations were in force in regard to
some States (namely those accepting them) but not against others, while each non-
accepting State would be free to regard the reservation-making State as not a party to
the Convention at all. This would have gone against the universal nature of the
Convention. Thus, the Court continued, a State having made a reservation that has
been objected to by some of the parties, may still be held a party to the Convention if
the reservation is compatible with the 'object and purpose' of the Convention. At this
point, then, the Court moved to think of the law expressly in terms of its objectives.
However, there were no objectives to the Convention that were independent from the
objectives of the parties to the Convention. Thus, it was up to each party to make the
determination 'individually and from its own standpoint'.3
Such an argument defines the objectives of international law in terms of the objec-
tives of the (sovereign) members of the international society-in this case the society
formed by the parties to the Genocide Convention-bringing to the fore two types of
problems: what will happen in cases where States disagree about the objectives? And
why would only State objectives count?
II. CONVERGING INTERESTS?
If no antecedent order establishes a firm priority between what States want, then any
<;:ontroversy either will have to remain open or we shall have to assume that the
procedure in which the disagreement is revealed will somehow be able to dispose of it
2 Henkin writes that instead of 'human values', the system is centred upon 'State values' (Henkin, 1989,
p 109). This polemical contrast undermines the degree to which States-including principles of sovereignty
and non-interference-find their moral justification in late eighteenth century liberal individualism and the
ideal of national self-rule: 'State values' persist because they channel 'human values' within a political
community. See also Paulus, 2001, pp 69-97.
3 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, IC! Reports 1951, p 15 at p 26.
 92 MARTTI KOSKENNIEMI
to the satisfaction of all. The latter suggestion embodies the idea of the (harmony of
interests', the presence of an underlying convergence between apparently conflicting
State interests. Under this view, any actual dispute would always be only superficial.
At a deeper level, State interests would coalesce and the objective of international law
would then be to lead from the former level to the latter. 4
It has been difficult to defend this view against realist criticisms. Why would har-
mony, instead of conflict, be the true nature of international politics? What evidence
is there that, rightly understood, the interests of States are compatible? Might the
harmony not rather seem a form of wishful thinking that prevents people from clearly
seeing where their interests lie, and' acting accordingly? Hans Morgenthau, one of the
fathers of realist thought, attacked the inter-war legalism precisely for having made
this mistake. To believe in harmony under the League of Nations had left the world
unprepared for Hitler's aggression in 1939 (Morgenthau, 1940, pp 261-284). EH Carr,
another powerful realist thinker, described the' harmony as an ideological smoke-
screen: (Biologically and economically, the doctrine of the harmony of interests was
tenable only if you left out of account the interest of the weak who must be driven to
the wall, or called in the next world to redress the balance of the present' (Carr, 1946,
p 50).
International lawyers have responded to such criticisms in two ways. Many have
accepted the marginal scope that power leaves for law and defined the legal regimes as
variables dependent on a central power (Schmitt, 1988; Grewe, 2001), or developed
purely instrumental accounts of the use of law in the defence of particular interests
or preferences (McDougal, 1953, pp 137-259). Others have sought to articulate the
harmony under a more elaborate interdependence or globalization theory. 'Inter-
national trade and commerce, international finance, international communication-
all are essential to the survival of States, and all require an international legal system
to provide a stable framework within which they may function' (Watts, 2000, p 7).
Institutional, procedural, and even linguistic theories have been used to argue that
even the articulation of State interests is based on an internalization of legal notions
such as 'sovereignty', 'treaty', and 'binding force' that delimit and define what may
count as State interests or even State identity in the first place. 5
But the opposition between 'realism' and 'idealism' is only of limited heuristic
usefulness. The labels invoke contrasting political sensibilities and different
4 This argument, always implicit in moral objectivism and theories of natural law, was made in a dramatic
way by Hersch Lauterpacht, speaking at Chatham House in 1941, as bombs were falling over Coventry and his
family was being destroyed by the Nazis in Poland: 'The disunity of the modern world is a fact; but so, in a
truer sense, is its unity. Th[e] essential and manifold solidarity, coupled with the necessity of securing the rule
of law and the elimination of war, constitutes a harmony of interests which has a basis more real and tangible
than the illusions of the sentimentalist or the hypocrisy of those satisfied with the existing status quo. The
ultimate harmony of interests which within the State finds expression in the elimination of private violence is
not a misleading invention of nineteenth century liberalism' (Lauterpacht, 1975, p 26).
5 This is the 'constructivist' explanation of international law's impact on States, much used today
in international relations studies. See, eg, Finnemore, 1996. For a discussion, see Brunnee and Toope, 2000,
pp 19-74; Kratochwil, 2000, pp 55-59.
WHAT IS INTERNATIONAL LAW FOR? 93
jurisprudential techniques that often emerge into each other. Even the hardest
'realism' reveals itself as a moral position (for example by highlighting the priority of
the national interest) inasmuch as, 'philosophically speaking, realism is unthinkable
without the background of a prior idealistic position deeply committed to the univer-
salism of the Enlightenment and democratic political theory' (Guzzini, 1998, p 16).
On the other hand, any serious idealism is able to point to aspects of international
reality that support it, and needs such reference in order to seem professionally
credible. Much of the controversy is about political preference, including the question
of what element of a many-faceted 'reality' should be chosen as the starting point of
one's analysis. Disciplinary progress has occurred by recurrent cycles oflawyers reject-
ing the previous generation as either 'utopian' (typically because excessively idealist)
or as 'apologist' (typically because too impressed by sovereignty) and the correspond-
ing critiques are as available today as they were a century ago. Care must be taken not
to associate any legal position or doctrine permanently with either: idealism and
realism are best understood as forms of critique and channels for institutional reform
in accordance with particular political agendas, disciplinary manoeuvring rather than
qualities of an independent international world. 6
This is not to say that international law would not often be helpful for the limited
resolution of conflicts, resulting in temporary accommodations or even settlement.
This is, after all, why the S:ieneral Assembly posed its question to the ICJ in the
Reservations case in the first place. The Court was not asked to rule on the admissi-
'bility of particular reservations but to indicate how to go about implementing the
Convention so as to minimize any distorting effect that controversial reservations
'might have.
, Many lawyers make a more ambitious defence of international law in terms of such
practical effects. However neutral in regard to political principles, they would say, the
structure is not devoid of normative direction. In their view, international law is
accompanied by a cunning logic that slowly socializes initially egoistic States into the
law's internationalist spirit.? It is possible (though not necessary) to picture this ethic
as the (inner morality of law' that accompanies any serious commitment to work in a
legal system. 8 An alternative but parallel approach would be to characterize the system
in terms of a 'culture of civility' shared by its administrators and excluding certain
types of secrecy, dishonesty, fraud, or manipulation. Such an explanation resonates
with international law's emergence in the late nineteenth century as an aspect of
optimistic evolutionism among the liberal elites of Europe and North America. To
view international law as a process of education is to assume that, by entering into
6 This is one of the central arguments in Koskenniemi, 1989.
? A defence of the view that law socializes States not by constraint but by 'compliance strategies [that] seek
to remove obstacles, clarify issues, and convince parties to change their behavior', as well as by 'various
manifestations of disapproval: exposure, shaming, and diffuse impacts on the reputations and international
relationships of a resisting party', is found in Chayes and Chayes, 1995, pp 109, 110.
8 The point about law necessarily containing certain 'aspirations of excellence' without which an order
would not be recognized as 'law' in the first place, is made, of course, in Fuller, 1969, especially pp 41-94.
 94 MARTTI KOSKENNIEMI
the processes it provides, States come to define not only their objectives but perhaps
even their identity by principles offered by international law (Koskenniemi, 2001a).
III. THE SIGNIFICANCE OF STATEHOOD
But the Westphalian myth leaves also unexplained why only State objectives count.
At least since Immanuel Kant published his essay on the Perpetual Peace (1795),
philosophers, political theorists, and lawyers have routinely challenged the State-
centrism of the international system, arguing that whatever instrumental value States
may have for the coordination of affairs of particular communities, the 'ultimate'
members of those communities are individuals and that many other human groups
apart from States ('peoples', 'nations', 'minorities', 'international organizations',
'corporations') also play important roles (Westlake, 1910, p 16). Globalization and the
crisis of sovereignty have intensified the criticisms of the nature of international law
as State law from sociological, functional, and ethical standpoints. These critiques
have often sought to project a material value or an idea of social justice outside
of statehood that they suggest should be enforced by international law (Koskenniemi,
1994, pp 22-29).
The universalizing vocabularies of human rights, liberalism, economic, and
ecological interdependence have no doubt complicated inter-sovereign law by the
insertion of public law notions such as jus cogens and 'obligations owed to the inter-
national community as a whole' and by 'fragmenting' the international system
through the fluid dynamics of globalization (cf Section VIII below). But it has not
been replaced by something recognizeably non-Westphalian. None of the normative
directions-human rights, economic or environmental values, religious ideals-has
been able to establish itself in a dominating position. On the contrary, what these
values may mean and how conflicts between them should be resolved is decided
largely through 'Westphalian' institutions. This is not to say that new institutions
would not enjoy a degree of autonomy from the policies of States. Human rights and
many economic and environmental regimes provide examples of such. The European
Union has developed into an autonomous system that functions largely outside
the frame of international law. How far these other regimes are from that of the EU
can, however, be gleaned from the recent characterization of the WTO system by the
Appeals Body in the Alcoholic Beverages case (1996):
The WTO Agreement is a treaty-the international equivalent of a contract. It is self-evident
that in an exercise of their sovereignty,· and in pursuit of their own respective national
interests, the Members of the WTO have made a bargain. In exchange for the benefits they
expect to derive as members of the WTO they have .agreed to exercise their sovereignty
according to commitments they have made in the WTO Agreement. 9
9 lapan-Taxes on Alcoholic Beverages, Report of the Appeals Body (AB-1996-2) DSR 1996: I p lOS.
WHAT IS INTERNATIONAL LAW FOR? 95
This outlook was reaffirmed by the International Court of Justice in the Nuclear
Weapons Opinion in 1996. In response to the question about the lawfulness of the
threat or use of such weapons, the Court concluded that whatever the consequences,
"It could not exclude that such use would be lawful 'in an extreme circumstance of
'self-defence, when the very survival of a State would be at stake'. 10 State objectives and
State survival remain the highest objectives of the system. Likewise, bodies such as the
European Court of Human Rights or the UN Human Rights Committee recognize
that the treaties they administer function in a State-centred world: the margin of
appreciation ~d the wide scope of derogations allow for national security reasons
if 'necessary in a democratic society' to operate with notions of 'security' and
'democracy' that are embedded in a world of States. 11
But the defence of international law's state-centredness is thoroughly practical.
'Stated quite simply', James Brierly once wrote, 'what [international law] tries to do
is to define or delimit the respective spheres within which each of the ... States into
which the world is divided for political purposes is entitled to exercise its authority'
(Brierly, 1944, p 3). Little of this justification has changed. A form and a process is
needed that channels interpretative conflicts into peaceful avenues. This is not to say
that non-State values such as 'human rights', 'efficient economies', 'clean environ-
ment' , or 'justice' would be unworthy objectives of political action. Disagreement
about them provides the life and blood of political community. The defenders of
the State-system would only note that such values conflict and that 'States alone
have provided the structures of authority needed to cope with the incessant claims
of competing social groups and to provide public justice essential to social order
and responsibility' (Schachter, 1997, p 22). States may be set aside, of course, by
consent or revolution but there are dangers in such transformations, some of which
are well known, and something about those dangers results from their teleological
nature.
On the other hand, there is no doubt that international politics is far from
the Westphalian ideal. The informal networks and epistemic communities that
influence international developments beyond the rigid forms of sovereign equality
are populated by experts from the developed West. It is hard to justify the attention
given and the resources allocated to the 'fight against terrorism' in the aftermath
of the attacks on New York and Washington in September 2001 in which nearly
3,000 people lost their lives, while simultaneously six million children under five years
old die annually of malnutrition by causes that could be prevented by existing
10 Legality of the Threat or Use ~f Nuclear Weapons, Advisory Opinion, leI Reports 1996, p 226, paras 96,
101(E).
11 Or in other words, these mechanisms are only subsidiary: 'The [European Convention on Human
Rights] leaves to each contracting State ... the task of securing the rights and freedoms it enshrines',
Handysidev UK, Judgment of7 December 1976, Ser A, No 24, (1979) 1 EHRR 737, para 4S. As Susan Marks
points out, liberal reformers conceive of 'democratization' in terms of reform of domestic (and not inter-
national) institutions (Marks, 2000, pp 76-100).
 MARTTI KOSKENNIEMI
economic and technical resources. 12 What becomes a (crisis' in the world and will
involve the political energy and resources of the international system is determined in
a thoroughly Western-do.r;ninated process (Charlesworth, 2002).
It is widely believed that the informal and fluid economic, technological, and
cultural processes termed (globalization' strengthen the political position of the most
powerful actors-transnational networks, large corporations, Western developed
States-and marginalize public international law (eg Hurrell and Woods, 1999).
Weak States despair over their inability to hold on to achieved positions and privileges
by the antiquated rhetoric of sovereignty. But the latter's awkward defence of the
conservative system of sovereign equality undermines the extent to which globaliza-
tion may also open avenues for contestatory transgovernmental action within inter-
national civil society, or by what Hardt and Negri call the (multitude' (Hardt and
Negri, 1999, pp 393-413). There is room for conflict and consensus both within and
beyond the Westphalian system and little political worth lies in d~ciding a priori in
favour of either. Formal rules as well as anti-formal objectives and standards may each
be used for progressive or conservative causes. 13 The choice of technique must reflect a
historically informed assessment of the effect of particular institutional alternatives. .
In the following sections I will try respond to the question (what is international
law fort by describing its role in a world that is not one of pre-established harmony
or struggle but of both cooperation and conflict. I will argue that international
law operates-and should operate-as a relatively autonomous formal technique as
well as an instrument for advancing particular claims and agendas in the context of
political struggle. If international law as a system seeks the assent of States by claiming
rigorous impartiality, as a profession and a sensibility it has been unabashedly partial
in favour of urIiversal objectives beyond the State. Such objectives can be advanced
only by two means: imposition or inclusion. There is no third alternative. Much
instrumental thinking about international law today adopts the point of view of
the decision-maker in a relatively prosperous State or transnational network, in
possession of resources and policy-options and seeking guidance on how to fit their
objectives with international legality. Clearly, international law exists (for' such
decision-makers. But it should not exist exclusively for them. In this chapter I shall try
to explain why there is often a reason to adopt a (formalist' view on international
law that refuses to engage with the question of its objectives precisely in order to
constrain those in powerful positions. But I shall also argue that the question (what is
international law for?' needs to be removed from the context of legal routines to the
political arenas in which it might be used to articulate claims by those who are
sidelined from formal diplomacy and informal networks and feel that something
about the routines of both is responsible for the deprivations they suffer.
12 'The State of Food Insecurity in the World 2002', www.fao.orgiDOCREP/005!Y7352e!Y7352eOO.HTM
(last visited 24 October 2002).
13 For the varying use of the rule/principle opposition in self-determination arguments about change,
participation, and community, see Knop, 2002, pp 29-49.
WHAT IS INTERNATIONAL LAW FOR? 97
IV. INTO PRAGMATISM?
The paradox of objectives shows that the formal law of Westphalia cannot be replaced
by social objectives or ethical principles without invoking controversies that exist in
regard to the latter. (Whoever invokes humanity wants to cheat', Carl Schmitt once
wrote (Schmitt, 1996, p 54), citing the nineteenth century French socialist Pierre
Joseph Proudhon and making a useful point about the use of abstract humanitarian-
ism to label one's political adversary as an enemy of humanity so as to justify extreme
measures against him-a point that applied in today's context (lacks neither lucidity
nor relevance' (Kervegan, 1999, p 61). One need not think only of the extreme case of
the (war against terrorism' to canvass the slippery slope from anti-formal reasoning to
human rights violation. Quite everyday legal argument assumes the analytical priority
of the reasons for the law over the form of the law in a fashion that underwrites
Stanley Fish's perceptive dictum: (once you start down the anti-formalist road, there is
no place to stop' (Fish, 1989, p 2).
For example, the right of self-defence urIder Article 51 of the Charter is formally
conditioned by the presence of an (armed attack'. But what about the case of a threat
-~f attack by mass destruction weapons? Here we are tempted to look for guidance
·from the objective of Article 51. The rationale for allowing self-defence lies, pre-
sumably, in the objective of protecting the State. Surely we cannot expect a State to
wait for an attack if this would bring about precisely the consequence-the destruc-
tion of the State-that the rule was intended to prevent. Because the rule itself is no
more valuable than the reason for its existence, we erase the condition of prior
I
\ i armed attack and entitle the State to act in an anticipatory wayY Or the other way
around: surely formal sovereignty should not be a bar for humanitarian intervention
against a tyrannical regime; in oppressing its own population, the State undermines
its sovereignty. We honour (sovereignty' as an expression of a people's self-rule. If
instead of self-rule there is oppression, then it would seem nonsensical to allow formal
sovereignty to constitute a bar to intervention in support of the people. is
In other words, we do not honour the law because of the sacred aura of its text or
origin but because it enables us to reach valuable human purposes. We follow the
emission reduction schedule of chlorofluorocarbons (CFCs) in Article 2 of the 1987
Montreal Protocol on the Protection of the Ozone Layer because we assume that it
will reduce the depletion of the ozone layer and the incidence of skin cancer. We
honour the domestic jurisdiction clause in Article 2(7) of the UN Charter because we
assume ·it upholds the ability of self-determining communities to lead the kinds oflife
they choose. But what if it were shown that ozone depletion or skin cancer bears no
14 This is the argument for the 'Bush doctrine' of pre-emptive self-defence, as made in the United States
security strategy, published on 20 September 2002. Cf the text in, eg, Financial Times, 21 September 2002,
p4.
IS This position is often combined with the argument for pro-democratic intervention. For useful analysis,
see Chesterman, 2001, pp 88-111.
 MARTTI KOSKENNIEMI
relationship to the emissions of CFCs, or that domestic jurisdiction merely shields the
arbitrary reign of tyrants? In such cases we would immediately look for an equitable
exception or a counter-rule so as to avoid the-now unnecessary-costs that would
be incurred by bowing to the empty form of the original rule. Article 10(1) of the
European Convention on Human Rights provides for freedom of speech. If applying
the right would enable the distribution of fascist propaganda, it is always possible
to interfere and prohibit it by the counter-rule in Article 10(2) that enables the
'prevention of disorder or crime' and to ensure 'the protection of morals', with a
margin of appreciation lying with State authorities. Enabling those authorities to
protect 'national security' is indispensable if they are to secure the liberal rights-
regime. Yet, because setting the 'balance' between security and rights lies with the
authorities against whom the rights-regime was established, the door to abuse
remains open (see Cameron, 2000, pp 62-68).
We often allow the reason for the rule to override the rule. We do this because
we believe the rule itself has no intrinsic worth. If it fails to support the purpose
for which it was enacted-or worse, prevents its attainment-why should it be
honoured? In domestic society, abstract law-obedience can be defended in view of the
routine nature of the cases that arise, and the dangers attached to entitling citizens to
think for themselves. Such arguments are weak in the international realm where
situations of law-application are few, and disadvantages of obedience often signifi-
cant. Few States that were economically or politically dependent on Iraq fully imple-
mented the sanctions set up in 1990. Though they were in formal breach of Articles 25
and 48 of the Charter, the UN preferred to look the other way. The European Union is
not going to give up the prohibition of importation of hormone meat merely because
a WTO dispute settlement organ may have decided it should do so. The importance
of the interest in living peacefully with a powerful neighbour and of deciding on
national health standards vastly outweighs any consideration about the importance of
abstract law-obedience (see Koskenniemi, 2001b).
And yet, as the argument by Schmitt shows, there is a dark side to such anti-
formalism. A legal technique that reaches directly to law's purposes is either
compelled to think that it can access the right purpose in some politics-independent
fashion-in which case it would stand to defend its implicit moral naturalism-or it
transforms itself to a licence for those powers in position to realise their own purposes
to do precisely that. Instrumentalism inculcates a heroic mindset: we can do it! It
is the mindset of well-placed, powerful actors, confident in their possessing the
'right' purpose, the mindset that drove Stalin to collectivization, or Israel to destroy
the Osiraq nuclear power plant in 1981. Instrumental action mayor may not be
acceptable in view of the circumstances. But the instrumentalist mindset creates a
consistent bias in favour of dominant actors with many policy-alternatives from
which to choose and sufficient resources to carry out their objectives. 16 To always look
for reasons, instead of rules, liberates public authorities to follow their reasoning, and
16 For a description of instrumentalism as a culture, see Binder, 1988, pp 906-909.
WHAT IS INTERNATIONAL LAW FOR? 99
their purposes-hence their frequent aversion against rules in the first place: the
International Criminal Court, disarmament or human rights treaties, environmental
or law of the sea regimes, and so on (see Byers and Nolte, 2003).
The difficulty with the instrumentalist mindset is that there never are simple,
well-identified objectives behind formal rules. Rules are legislative compromises,
open-ended and bound in clusters expressing conflicting considerations. To refer to
objectives is to tell the law-applier: 'please choose'. There is no doubt that Article 2(4)
of the UN Charter aims towards 'peace'. Yet it is equally certain that 'peace' cannot
quite mean what it seems to say. It cannot mean, for instance, that nobody can ever
.take up arms. 'Perhaps the most serious problem with outlawing force is that some-
times it is both necessary and desirable' (Watts, 2000, p 10). J\rticles 42 and 51 of
'the UN Charter expressly allow for the use of military force under the authority of the
~ecurity Council or in pursuance of the inherent right of self-defence. The positive
law of the Charter is both pacifist and militarist-and receives its acceptability by
such schizophrenia. The European Convention on Human. Rights seeks to protect
individuals' rights to both freedom and security. But one person's freedom conflicts
with another's security. Whether or nof authorities should be entitled to censor
prisoners' letters or prohibit the publication of obscene materials, for instance, cannot
be reached through instrumental reasoning that would be independent from a
political choice (see Koskenniemi, 2000, pp 99-106). The will of the drafters is the
language of the instrument. Beyond that, there is only speculation about what might
be a good (acceptable, workable, realistic, or fair) way to apply it.
Practitioners usually understand international law as being more about routine
application of standard solutions, ad hoc accommodation, and compromise than dis-
course about large objectives. Providing advice to a non-governmental organization
or drafting judgments at the International Court of Justice are usually held to require
pragmatic reconciliation of conflicting considerations, balancing between 'equitable
principles', conflicting rights, or other prima facie relevant aspects of the case at hand.
Dispute-resolution during the dissolution of the Former Yugoslavia in the early 1990s
was understood to involve conflicting considerations about stability of frontiers
and expectations of justice on the part of the different protagonists. This required
the management of the uti possidetis principle as against the provision of minority
rights for populations left on the wrong side of the boundary.17 The balance struck
between these considerations did not come from any anterior directive but from the
negotiators' pragmatic assessment of what might work (Lam, 2000, pp 141-151).
At the European Court of Human Rights, individual freedoms are constantly
weighted against the need for interference by public authorities. In regard to the
pacific enjoyment of possession or protection of private life, it is established case-law
that 'an interference must achieve a "fair balance" between the demands of the general
interests of the community and the requirements of the protection of the individual's
17 Cf Opinions 2 and 3 of the Arbitration Commission of the Peace Conference on the Former Yugoslavia
(1992) 31 ILM 1497-1500.
 100 MARTTI KOSKENNIEMI
fundamental rights'. 18 In a like manner, the law concerning the delimitation of
frontier areas or the sharing of natural resources resolves itself into a more or less
flexible cluster of considerations about distributive justice-sometimes described
in an altogether open-ended fashion in terms of 'equitable principles' or 'equitable
use' -that enables the decision-maker to arrive at a pragmatically acceptable end-
19
result. Even decision-making concerning the use of force involves setting a balance
between restraint and the need for action, while hard cases in this field invariably turn
into a contextual assessment of what number of non-combatant casualties might still
be within the limits of proportionality by reference to the military objective.
Few international lawyers think of their craft as the application of pre-existing
formal rules or great objectives. What rules are applied, and how, which interpretative
principles are used and whether to invoke the rule or the exception-including many
other techniques-all point to pragmatic weighing of conflicting considerations in
particular cases (Corten, 1997). What is sought is something practical, perhaps the
'fairness' of the outcome, as Thomas M Franck has suggested. Under this image, law is
not about peace or justice, freedom or security, stability or change, but always about
both one and the other simultaneously. 'The tension between stability and change, if
not managed, can disorder the system. Fairness is the rubric under which the tension
is discursively managed' (Franck, 1995, p 7). The lawyer's task is now seen in terms of
contextual 'wisdom', or 'prudence', rather than the employment of formal techniques
or instrumental calculations.20 In a fluid, fragmented world, everything hinges on the
sensitivity of the practising lawyer to the pull of contextually relevant considerations.
v. A TRADITION OF ANTI-FORMALISM
The movement towards pragmatism has been accompanied by a series of criticisms of
international law's alleged 'formalism'. The first generation of professional inter-
national lawyers in the last third of the nineteenth century used a flexible notion of
'civilization' and a historically oriented political jurisprudence to expand its horizon
beyond diplomatic protocol and outdated natural law. The inter-war generation
attacked the formalism of sovereignty that it saw in pre-war doctrines and advocated
tradition and interdependenc~ as bases for a more solid international law. After the
next war, reformist lawyers especially in the United States indicted the formalism
of the League and based their 'realism' on Cold War themes, either expressly
18 Fredin v Sweden, Judgment of 18 February 1991, Ser A, No 192, (1991) 13 EHRR 784, para 51; Lopez
Ostra v Spain, Judgment of9 December 1994, Ser A, No 303-C, (1995) 20 EHRR 277, para 5l.
19 Cf, eg, Separate Opinion of Judge Jimenez de Arechaga, Continental Shelf (Tunisia/Libyan Arab
Jamahiriya), Judgment, ICJ Reports 1982, p 18, pp 103-108 (paras 11-31) and, eg, the International Conven-
tion on the Non-Navigational Uses of International Watercourses, A/RES151/229 (8 July 1997). I have ana-
lysed this 'turn to equity' in, among other places, Koskenniemi, 1999b, pp 27-50.
20 For a celebration of judicial creativity in this regard, see Lauterpacht, 1958.
WHAT IS INTERNATIONAL LAW FOR? 101
policy-oriented in favour of the West or in a more social-democratic way highlighting
the needs of international cooperation (see Kennedy, 2000, pp 380-387). Legal
realism always had its Hawks and its Doves but for both, it seemed useful to criticize
old law for its 'formalism' in order to support 'dynamic' political change.
Interdisciplinary studies in the 1990s highlighted the extent to which the formal
validity of a standard was independent from its compliance pull (see, eg, Shelton,
2000). As the law was seen instrumentally, its formality seemed to bear no particular
merit: 'hard law' was just one choice among other possible regulative techniques,
including soft standards or the absence of any standards at all in cases where the
imposition of one's preference seemed within the limits of the possible and preferable
given that it might 'minimise transaction and sovereignty costs'. 21 In such debates
formal law has nobody speaking in its favour and is indicted as a utopianism
supporting conservative causes. Anti-formalism is always a call for transformation: to
overrule existing law either because it does not really exist at all, or if it does, because it
should not. The debate on soft law and jus cogens in the 1980s and 1990s manifested
both of these criticisms and Prosper Weil's famous analysis of the pathological
problems (the 'dilution' and 'graduation' of normativity) introduced in international
law by such notions were unpersuasive to anti-formalist critics who wanted to realize
the good society now and had no doubt that they knew how to go about this (see Weil,
1983; Tasioulas, 1996). Avant-garde instrumentalism at the end of the century reads
like German public law conservatism at its beginning: over every international rule
hangs the sword of clausula rebus sic stantibus (see Kaufmann, 1911).
What makes the formalism/anti-formalism debate suspect is the extent to which
anything may be and has been attacked as 'formalism' (see Kennedy, 2001). The
following views, at least, have been so targeted:
(a) rationalistic natural-law theories;
(b) views emphasizing the importance of (formal) sovereignty;
(c) views limiting international law's scope to treaties or other (formal)
expressions of consent;
(d) views highlighting the importance of international institutions;
(e) views emphasizing 'rigour' in law-application;
(f) views stressing the significance of formal dispute-settlement;
(g) views insisting on a clear boundary between law and politics.
The list is by no means exhaustive. In fact, anything' can be labelled 'formalism'
because the term is purely relational. When a speaker advocates something (a norm,
21 An interdisciplinary research on the recent 'move to law' uses a method of assessing 'legalization' by
reference to the standards' obligatory nature, precision, and the presence of a centralized authority. The
project examines 'legalization' instrumentally, by concentrating on the conditions under which it constitutes
a rational choice. See, eg, Abbott and Snidal, 2001, pp 37-72. Such instrumentalism is not neutral: to assess
law from the perspective of rational choice is to occupy the perspective of a small number of actors
that actually may choose their options by agendas they set. It celebrates the managerial culture of Western
experts at work to advance Western interests.
102 MARTTI KOSKENNIEMI
a practice) by its material fullness, the opposite view will inevitably appear to be
holding fast to the dead weight of some 'form'. The almost uniformly pejorative use
of the term 'formalism' in international law reflects the predominance of the instru-
mentalist mindset in diplomacy and international politics. The way the legal idiom
constructs and upholds the structures of diplomacy and politics is left invisible.
The contrast between instrumentalism and formalism is quite fundamental when
seeking to answer the question 'what is international law for?' From the instrumental
perspective, international law exists to realise objectives of some dominant part of
the community; from the formalist perspective, it provides a platform to evaluate
behaviour, including the behaviour of those in dominant positions. The instrumental
perspective highlights the role of law as social engineering, formalism views it as an
interpretative scheme. The instrumental perspective is typically that of an active and
powerful actor in possession of alternative choices; formalism is often the perspective
of the weak actor relying on law for protection.
If instrumentalism today needs no particular defence, it may be useful to highlight
the twin virtues of formalism. First, it is indispensable. Every standard is always
formal and substantive at the same time. The very ideas of treaty and codification
make sense only if one assumes that at some point there emerges an agreement, an
understanding, a standard that is separate from its legislative background. When
States enter an agreement, or when some behaviour is understood to turn from habit
into custom, the assumption is that something that was loose and disputed crystallizes
into something that is fixed and ascertainable. The point of law is to give rise to
standards that are no longer merely 'proposed' or 'useful' or 'good', and which there-
fore can be deviated from if one happens to share a deviating notion of what in fact is
useful or good. Instead, they are assumed to possess 'validity'. To accept that positive
law enjoys that property is not to say anything about how it is recognized in individual
rules or standards, nor indeed of whether any actual standard so recognized would
possess any particular meaning as against some other putative meaning. Validity
indicates a formal property that leaves the norm so characterized a 'flat, substanceless
surface' - but a surface without which no 'law' could exist at all.
Secondly, the fact that the legal form is a 'flat substanceless surface' expresses the
universalist principle of inclusion at the outset and makes possible the regulative
ideal of a pluralistic international world. '[O]nly a regime of noninstrumental rules,
understood to be authoritative independent of particular beliefs or purposes is com-
patible with the freedom of its subjects to be different' (Nardin, 1998, p 31). Between
the form of the law and a decision to project on it meaning 'x' instead of 'y', is a
professional technique that excludes no interpretation a priori, that enables stake-
holders to articulate their grievances as legal claims on conditions of equality,
including them in the normative universe as subjects of rights and duties or carriers of
distinct identities. The form of law constructs political adversaries as equals, entitled
to express their subjectively felt injustices in terms of breaches of the rules of the
community to which they belong no less than their adversaries-:-thus affirming both
that inclusion and the principle that the conditions applying to the treatment of any
WHAT IS INTERNATIONAL LAW FOR? 103
one member of the community must apply to every other member as well. In the
end, competent lawyers may disagree about what this means in practice. But the legal
idiom itself reaffirms the political pluralism that underlies the Rule of Law, however
inefficiently it has been put into effect.
There is a constant push and pull in the international world between a culture of
instrumentalism and a culture of formalism. It would be wrong to associate this dia-
lectic with fixed positions representing particular interests or preferences. Instru-
mental action is a necessary part of the search for good rules or institutions beyond
the status quo. And any present rules are always also mechanisms to support particular
interests and privileges. 'Power' and 'law' are entangled in such complex ways that it is
difficult to interpret particular events as manifesting either one or the other: power
works through 'formal rules' -just like instead of 'naked power', we see everywhere
power defined, delimited, and directed by rules.
But the two cultures do play distinct political roles in particular historical situ-
ations. As the debates around the fluid dynamism of globalization have demonstrated,
formal standards and institutions may now offer some protection for the weak actors,
and pose demands on the powerful ones?2 There is no magic about formalism, how-
ever. It does not automatically produce protection but may also buttress privilege.
Hence my reference to instrumentalism and formalism as 'cultures', sensibilities and
biases, traditions and frameworks, sets of rituals and self-understandings among
institutional actors. As pointed out above, whereas instrumentalism possesses a
'heroic' mindset, formalism, with its associated tropes about the rule of law, rights,
and constitutionalIsm, associates with impartiality and pluralism less in terms of
definite institutional models than as regulative ideals for a profession without which
no community could rule itself by standards it recognizes as its own (instead of
those of some influential faction). For this purpose, the community needs servants
that administer those standards (instead of trying to invent them)-the class of
lawyers-whose traditions and practices are defined by their closeness to the 'flat,
substanceless surface' of the law.
VI. INSTRUMENTALISM, FORMALISM, AND
THE PRODUCTION OF AN INTERNATIONAL
POLITICAL COMMUNITY
Modern international law puts the international lawyer at the heart of the legal
system. It is possible to represent that position schematically by reference to the two
types oflogic at play in the international rule oflaw. Here is the international relations
theorist Hedley Bull:
22 Out of a burgeoning literature, see, eg, Tsagourias, 2000.
 lO4 MARTTI KOSKENNIEMI
The special interests of the dominant elements in a society are reflected in the way in which
the rules are defined. Thus the particular kinds of limitations that are imposed on resort to
violence, the kinds of agreements whose binding character is upheld, or the kinds of right
to property that are enforced, will have the stamp of those dominant elements. But that
there should be limits of some kind to violence, and an expectation in general that agree-
ments should be carried out, and rules or property of some kind, is not a special interest of
some members of a society but a general interest of all of them. (Bull, 1977, P 55.)
So described, law unites an instrumentalist logic, one that looks for the realization
of objectives through law, with a formalist logic, one that establishes standards of
behaviour. Now it is obvious that neither logic is fully constraining. The instrumental
logic is indeterminate as the objectives always . leave a number of possible choices:
what does 'peace and security' mean and how should it be realized in the Middle East,
for example? Nor is the formalist logic ever fully formal, but always in practice some-
how partial and biased. However general the rules of law are, their equal application
may appear unjust because the reality to which they are applied is profoundly
unequal: should large and small States, democracies, and dictatorships really be treated
alike? The form of law is realized in particular rules or decisions that are no longer
formal but that always institute a bias in favour of some substantive politics.
In the Nuclear Weapons case (1996), the ICJ was requested by the UN General
Assembly to give an advisory opinion on the legal status of nuclear weapons. From the
perspective of the instrumentalist logic, the relevant regulation (human rights law,
environmental law, humanitarian law, and the law concerning the use of force) sought
to accomplish several types of objectives: above all protection of human life and the
environment, as well as the survival of States. These objectives proved indeterminate,
however, and both opponents and supporters of nuclear weapons argued by reference
to them: are people better protected with or without nuclear weapons? The instru-
mental logic did set some limits to what the Court could say, but it did not-indeed
could not-fully constrain it. A decision by the Court was needed to supplement the
instrumental logic-a decision that would, then, leave that logic under-determined.
The formalist logic was equally under-determined. To decide that nuclear weapons
were illegal would have created a consistent material bias in favour of States in posses-
sion of conventional weapons or in de facto possession of undisclosed nuclear
weapons. To require the dismantling of disclosed nuclear arsenals would have
revolutionized the existing military-political relationships in unforeseen ways. But
to decide that nuclear weapons were lawful would have maintained the systemic bias
in security policy in favour of the Great Powers and gone against the deep-rooted
popular sense that the existence of such weapons constitutes a permanent hostage-
taking by nuclear weapons States of most of the world's population. Neither illegality
nor legality could remain fully within the formalist logic. Both broke through pure
form and created one or another type of material bias. Indeed, it was impossible to
decide either way without the decision seeming 'political'. And because the political
choice in this case seemed too important for the Court to take, it chose the path of
recognizing the insufficiency of both logics: 'the Court considers it does not have
WHAT IS INTERNATIONAL LAW FOR? 105
sufficient elements to enable it to decide with certainty that the use of nuclear
weapons would be necessarily at variance with the principles and rules applicable in
armed conflict in any circumstance'.23
I have defended elsewhere the Court's silence inasmuch as it protected the need for a
sustained political condemnation of the killing of the innocent, lifting it from the banal
instrumentalism and formalism of modern law (Koskenniemi, 1999a). Irrespect~ve of
that position, however, the case illustrates the indeterminacy of both of the two types
of logic behind the Rule of Law, as outlined by Bull above. Neither instrumental
calculation nor a purely formal analysis could grasp the status of such weapons: a
decision was needed that was irreducible to the two logics. Here the decision was
silence. In other cases, the Court may have recourse to literalism, balancing, con-
textualization, and bilateralization, among a host of other techniques, to complete the
instrumental and formal structures within which it works (Koskenniemi, 1989,
pp 410-421). Each of such techniques is, again, indeterminate. None of them explain
why this argument was held relevant, why that interpretation was chosen. The decision
always comes about, as the political theorist Ernesto Laclau has put it, as a kind of
'regulated madness', undetermined by any structure outside it (Laclau, i996, p 58).
A court's decision or a lawyer's opinion is always a genuinely political act, a choice
between alternatives not fully dictated by external criteria. It is even a hegemonic act
in the precise sense that though it is partial and subjective, it claims to be universal
and objective. But it is this very partiality and political nature of the decision that
ensures that it is an aspect of, or even a creative moment of, a political community.
Here finally, is the significance of the under-determination of the two logics behind
the Rule of Law. The society upheld by international law is not an effect of instru-
mental reason, nor even of (some conception) of formal reason tout court. It is an
effect of decisions, made under conditions of uncertainty and conflict and amenable
for immediate criticism from alternative standpoints. That international law is not a
passive reproduction of deductions from some globalizing logic or other (economic,
environmental, humanitarian) structure beyond itself, institutes the international
society it governs as a political community that seeks to decide for itself what rules
govern it. It is, as Bull noted, a union of 'dominant elements' and 'general interest'.
Not reducible to either one or the other, international law is the terrain in which the
never-ending struggle between the two is being waged.
VII. BEYOND INSTRUMENTALISM AND FORMALISM
And yet this cannot be the whole story. Although notions such as 'peace', 'justice',
or 'human rights' do not fit well within the techniques of legal formalism, and are
quite disappointing as behavioural directives, they give voice to individuals and
23 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, para 95.
106 MARTTI KOSKENNIEMI
groups struggling for spiritual or material well-being, fighting against oppression,
and seeking to express their claims in the language of something greater than
merely their personal interests. Law-including international law-has a 'utopian,
aspirational face' (Cotterell, 1995, p 17) expressed in large notions such as
'peace', 'justice', or 'human rights' that in countless international law texts
appeal to solidarity within community. They do this in three distinct, but related
ways.
First, they redescribe individuals and groups as claimants of rights or beneficiaries
of entitlements and in so doing provide them with an identity that they may
assert against the homogenizing pull of formal law. As Karen Knop has recently
pointed out, the treatment of claims of self-determination by marginalized groups
such as indigenous peoples in legal institutions has sometimes enabled those groups
to be represented by an identity 'that might resonate with those represented' and
thus to 'equalize cultures in international law' (Knop, 2002, p 210). Secondly,
such principles give an international voice to communities by allowing them to
read their particular grievances as claims of universal entitlement, at the same level
as claims made by other members of the community. To be able to say that some act
is an 'aggression' or that the deprivation of a benefit is a 'human rights violation'
is to lift a private grievance to the level of a public law violation, of concern not
only to the victim but to the community. Such notions-and the whole debate
about the objectives of international law-act in the political realm to challenge
what Norman Geras has termed the 'contract of mutual indifference' -the tendency
to regard violations as a private matter between the victim and the perpetrator, and
therefore not of concern to others (Geras, 1998). They challenge the way
claims are blocked in the international realm as matters of 'domestic jurisdiction'
or 'private law', thus helping to express cosmopolitan ideas about a genuinely
political international public realm. And thirdly, to make those claims as legal claims
(instead of moral aspirations or political programmes) is to imagine-and thus
to create-the international world as a set of public institutions within which
public authorities should use their power in roughly predictable ways and with
public accountability.
The fact that public law notions such as jus cogens or of obligations erga omnes
tend to be formulated in such large terms as to restate the 'paradox of objectives' has
made them seem quite useless from an instrumental perspective. But, we may now
assume, their role may be precisely to counteract the ideological effects of instrumen-
talism. Again, the form of those ideas-of an 'international legal community' -is
important in allowing their use for the articulation of the most varied types of
claims, and thus providing a surface for the inclusion of the claimants as members
of a pluralistic community. 'Self-determination', typically, may be constructed
analytically to mean anything one wants it to mean, and many studies have invoked
its extreme flexibility. Examined in the light of history, however, it has given form
and strength to claims for national liberation and self-rule from the French
Revolution to decolonization in 1960s, the fall of the Berlin Wall, and the political
WHAT IS INTERNATIONAL LAW FOR? 107
tranSItions that have passed from Latin America through Eastern Europe and
South Africa. 'Peace', too may be an empty notion, perfectly capable of coexisting
with economic deprivation and suppression of human rights. On the other hand,
peace movements have been an invaluable aspect of political contestation
inasmuch as they 'mobilise support and highlight the inconsistencies in international
concepts of peace and security' (Charlesworth and Chinkin, 2000, P 272). Even
if 'justice' does lie in the eye of the beholder, without a language of justice, the
international struggles for resources, recognition, democracy or, for instance, 'ending
the culture of impunity' would have seemed like so many meaningless games played
by diplomats.
In other words, though the question 'what is international law for?' is seldom useful
as an aspect of the deliberations over particular problems among international law-
yers, it is absolutely crucial as a focus for international law's emancipatory potential.
While the culture of formalism is a necessary though often misunderstood aspect
of the legal craft, as a historical matter, it has often provided a recipe for indifference
and needs to be accompanied by a live sense of its political justification. To lift the
debate about objectives from diplomatic instruments or academic treatises to the level
of political struggles is a necessary counterweight to the bureaucratic spirit often
associated with formalism.
This would also enable the reconstruction of international law as a political project.
As modern international la~ arose in the last decades of the Nineteenth Century, it
did so as a part of the elitist politics of European liberal internationalism that
expected public opinion and democracy to pave the way for a rationally administered
world (see Koskenniemi, 2001a; Pemberton, 2001). The last articulations of that spirit
date from the first decade following the Second World War (see, eg, Lauterpacht,
1946). Since then, a gap has been created between the utopian and the pragmatic parts
of international law, the former becoming a rather grandiose justification over the
latter. But when formalism loses political direction, formalism itself is lost.24 Hence the
turn to pragmatism as surveyed above.
The question 'what is international law for ?' needs to be resuscitated from the
paralysis that it is infected with because of the indeterminacy of the responses given to
it. But this necessitates a reformulation of the relationship of international law to
politics, in either of its two guises, as principles and doctrines on the one hand, and as
institutional practices on the other. Both political realism and institutional pragma-
tism arose as reactions to failed expectations about international law's autonomy:
realists rejected legal institutions as a sham and told politicians to aim directly at their
objectives. Institutionalists were wary of such objectives and instead relied on tech-
niques of adjustment and compromise.
24 For a useful reconstruction of Hans Kelsen's formalism in terms of the political project that inspired it,
see von Bernstorff, 2001.
108 MARTTI KOSKENNIEMI
WHAT IS INTERNATIONAL LAW FOR? 109

national lawyers was a hegemonic technique, embedded in an understanding of the

VIII. BETWEEN HEGEMONY AND FRAGMENTATION: law as not simply a technical craft or a set of formal instruments and institutions.
It was a spontaneous aspect of 'civilization' which had the natural tendency to
A MINI-HISTORY
become universal.
If the First World War destroyed whatever was left of the civilizing mission, it also
These reaction formations are intellectually disappointing and politically dubious.
gave rise to a series of efforts to articulate anew the universal basis of international
Neither provides space for anything but a most formal debate about 'what is inter-
law, sometimes in terms of a law-like movement of societies to ever more complex
national law for?' and no space at all for responding to that question by reference to
forms of division of labour and interdependence (eg, Huber, 1910), sometimes
popular aspirations about peace, order, and justice. A first step in trying to account for
through a reinstatement of the hierarchical principles that were a natural part of legal
such aspirations is to accept that these notions are subject to political struggle and
systems (eg, Verdross, 1923). Most of the reconstructive scholarship of the inter-war
that even as they are formulated in universal terms, they are constantly appropriated
period, however, simply generalized the legal experience of European societies into
by particular agents and interests so as to support their agendas and causes. To
the international level, bringing into existence a universal international law through
say that one's actions embody those of an 'international community' is one such
private law analogies, conceiving the Covenant of the League of Nations as a constitu-
technique (see Klein, 2001). They are aspects of hegemonic struggle, that is to say,
tion of the world and by allocating to the juristic class the function of 'filling the gaps'
struggle in which a particular claims to represent that which is universal (see Mouffe
in an otherwise primitive-looking legal system (see Lauterpacht, 1933; Koskenniemi,
and Laclau, 2001). That the question 'what is international law for?' is a terrain of
1997). The particular European experience with the Rule of Law became the place-
~truggle is a na:ural aspect of a pluralistic society and a precondition for conceiving
holder for the aspirations of peace and justice that lawyers saw were demanded by
Its government m democratic terms.
populations struggling with industrialism and social conflict.
. The hegemonic nature of the debate about international law's objectives may be
In the more recent post-war er,a, much of that kind oflanguage-like the political
illustrated in terms of its history. When Spain and Portugal at the end of the fifteenth
liberalism with which it was associated-has lost credibility. When somebody today
c~ntu~ divided ~e non-European world between themselves by reference to a Papal
claims to be acting on behalf on the 'international community', we immediately
dIrectIve, they claImed to be speaking as Christian powers on behalf of humankind as
recognize the hegemonic technique at work (see Klein, 2001; Feher, 2000). As against
a whole. When the Spanish theologians Vitoria or Las Casas later were claiming that
the pragmatic spirit of to day's public international law, new specializations carry
God had given the Indians a soul just as He had given it to the Spanish, a particular
ideals of universalism and progress. Recently, this has occasioned a lively debate
form of Christian scholasticism-Dominican theology-came to speak in terms of
about the 'fragmentation of international law' - the emergence and consolidation
universal principles, equally constraining on the Princes and the Indians. And when
of special regimes and technical sub-disciplines: human rights law, environmental
Hugo Grotius in 1608 challenged the Iberian claims, he was redefining the objectives
law, trade law, the use of force, and so on (see Barnhoorn and Wellens, 1995).
of international law within a hegemonic struggle that opposed a Reformation-
In each of such realms, particular interests and standards are projected as universal
inspired commercial universalism against the ancien regime of (Catholic) Christianity.
ones, resulting in normative and jurisdictional conflicts. In its Tadic Judgment of
The. narrative of international law from those days to the Nineteenth Century may be
1999,.the International Criminal Tribunal for the Former Yugoslavia (ICTY) expressly
depIct~d as a succession of natural law arguments that were united by their always
deviated from the practice of the International Court of Justice, as laid out in its
emergmg from some European intelligentsia that claimed it was speaking on behalf
!"icaragua case in 1986 concerning the attribution of conduct by military irregulars
of the world as a whole. When de Emmerich Vattel in 1758 formulated his 'necessary
to a State. To move from a standard of 'effective control' to one of 'overall control'
law of nations' in terms of the co:r:nmands of natural reason, and found that it
significantly. enhanced the accountability of foreign States indirectly involved in
consecrated a balance of power between European sovereigns, he already filled the
internal conflicts, constituting a shift of normative preference with respect to one set
category of the 'universal' with a profoundly particular understanding that was a part
of international problems.25 The continuing debate about the relevance of environ-
of the (European) Enlightenment.
mental, human rights, or labour standards within the WTO system reflects a search for
. Since the ~rst appearance of the (modern) international law profession in Europe
the relative priority of political objectives within WTO institutions as those priorities
m the late nmeteenth century, that profession imagined itself as, in the words of
have not been set at the level of the relevant agreements themselves. The autonomy
the Statute of the Institut de droit international (1873), the 'juridical conscience
invoked by human rights regimes constitutes a subtle manoeuvre by human rights
of the civilised world'. This understanding, too, was born in a cultural environment
that imagined its own experience-which it labelled (civilization' -as universal
and postulated it as the end-result of the development of societies everywhere. The 25 The Prosecutor v Dusko Tadic, Judgment, Case No IT-94-1-A, Appeals Chamber (15 July 1999),

civilizing mission enthusiastically propagated by late nineteenth-century inter- p 57, para 137.
110 MARTTI KOSKENNIEMI
implementation organs to universalize their jurisdiction. 'Dynamic' arguments and
the object and purpose test allow the creation of a systemic bias in favour of the
protected individuals that could be difficult to justify under traditional law.
Now 'fragmentation' is not. a technical problem resulting from lack of co-
ordination: the normative preferences of environmental and trade bodies differ,
as do preferences of human rights lawyers and international law 'generalists'
(Koskenniemi and Leino, 2002). Such differences are like differences between States:
what is at issue is a hegemonic struggle where each institution, though partial, tries to
occupy the space of the whole. Far from being a problem to resolve, the proliferation
of autonomous or semi-autonomous normative regimes is an unavoidable reflection
of a 'postmodern' social condition and a beneficial prologue to a pluralistic
community in which the degrees of homogeneity and fragmentation reflect shifts
of political preference and the fluctuating successes of hegemonic pursuits (Stark,
2002).
IX. LEGAL FORMALISM AND
INTERNATIONAL JUSTICE
Let me close by four responses to the question 'what is international law for?'. Two
are rather straight-forward. First, international law exists to advance the repertory
of substantive values, preferences, and practices that those in dominant positions
seek to realize in the world. Secondly, it also gives voice to those who have been
excluded from decision-making positions and are regularly treated as the objects of
other peoples' policies; it provides a platform on which claims about violence,
injustice, and social deprivation may be made even against the dominant elements.
To bring these two aspects of international law together means that there is no
fixed set of objectives, purposes, or principles that would exist somewhere 'outside'
or beyond international law itself, that they are always the objectives of particular
actors involved in hegemonic pursuits. The law is instrumental, but what it is an
instrument for cannot be fixed outside the political process of which it is an
inextricable part.
This is why, thirdly, international law's objective is always also international
law itself For as I have tried to argue above, it is international law's formalism that.
brings political antagonists together as they invoke contrasting instrumental under-
standings of its rules and institutions. In the absence of agreement over, or knowledge
of the 'true' objectives of political community-that is to say, in an agnostic world-
the pure form of international law provides the shared surface-the only such
surface-on which political adversaries recognize each other as such and pursue their
adversity in terms of something shared, instead of seeking to attain full exclusion-
'outlawry' -of the other. Its value and its misery lie in its being the fragile surface of
WHAT IS INTERNATIONAL LAW FOR? 111
political community among social agents-States, other communities, individuals-
who disagree about social purposes but do this within a structure that invites them to
argue in terms of an assumed universality.
But there is a fourth response as well: international law exists as a promise of
justice. The agnosticism of political modernity has made the articulation of this last
teleological principle extremely difficult. For the justice towards which international
law points cannot be enumerated in substantive values, interests, or objectives.
All such languages express inadequate and reified images, (partial) points of view.
A return to morality-in contrast to 'moralization' -is not available (Koskenniemi,
2002). As a promise of justice, international law describes the international world
as a political community in which questions of just distribution and entitlement are
constantly on the agenda. Such a self-image supports an administrative culture in
which the acts of public officials are constantly assessed by a language of community
standards. The instrumentalist mindset understands the law only as a technique
of domination, a coercive order to make 'nations behave'. Its underlying image is the
Hobbesian view of law as a melancholy technique to prevent human groups from
self-destruction. The image oflaw as. a pointer towards justice challenges this self-view
and encourages support for transformation: a world of-for lack of better words-
peace, equality, and freedom. Iflaw is used to compel (as it is), it is so used to because
the violations cannot coexist with such aspirations. They are singular until the law lifts
them from the purely subjective into public illegality:
Law is the name of the semblance of order-the assembling, the ordering, the establishing of
commonality-that is made of our otherwise (subjective) differences when we take, or
interpret them to be a world that can be judged, rather than mere subjective experiences
(Constable, 2000, p 95).
But the justice that animates political community is not one that may be fully
attained. Not only is law never justice itself, the two cannot exist side by side. If
there is justice, then no law is needed -and if there is law, then there is only a (more or
less well-founded) expectation of justice. Here is the truth in Instrumentalism about
positive law being a pointer beyond itself. There is a Messianic structure to inter-
national law, the announcement of something that remains eternally postponed. It is
this 'to-come' that enables the criticism of the law's own violence, its biases and
exclusions. No doubt, law and justice are linked in the activity of lawyers, para-
digmatically in the legal judgment. This is the wisdom grasped by legal pragmatism.
But the judgment is always insufficiently grounded in law, just like positive law is
always insufficiently expressive of justice. In the gap between positive law and justice
lies the necessary (and impossible) realm of the politics oflaw. Without it, law becomes
pure positivity, its violence a mere fact of power.
112 MARTTI KOSKENNIEMI
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 4
THE SOURCES OF
INTERNATIONAL LAW
Hugh Thirlway

SUMMARY

A rule of international law must derive from one of the recognized sources, namely: (l)
treaties and conventions; (2) international custom; (3' general principles of law; and (4)
the \subsidiary sources' of judicial decisions and legal teachings. Treaties are binding only
on the parties to them; custom (which pre-supposes an established practice and a psycho-
logical element known as the opinio juris) is in principle binding on all States, unless it is a
\special' or \Iocal' custom, and save for the exceptional case of the \persistent objector'.
The general principles of law (as evidenced by national legal systems) may be appealed
to if a point is not settled either by treaty or custom. Other sources, or alternative con-
ceptions of how law comes into being, have from time to time been suggested, but the
traditional analysis continues to be used in practice, in particular by the International
Court.

I. INTRODUCTION: WHAT ARE SOURCES OF LAW?

The essence of every legal system is a body of principles and rules that lay down the
rights and obligations of the subjects of that system. I These may for convenience be
called the 'primary rules' of the system. However, each system also contains rules
which can be applied to determine what are the primary rules, how they come into
existence and how they can be changed; these we may term 'secondary rules'.2 In

I The question whether international law is solely a set of principles and rules is controversial, but no-one
denies that such principles and rules are comprised in it, and for present purposes it will be sufficient to limit
our attention to those principles and rules.
2 The terminology is that employed by Hart, 1994 in the context of municipal systems; it is less commonly
used in international law, but makes for clarity.
118 HUGH THIRLWAY
municipal legal systems, ie the legal systems applicable within individual States, the
presence of these secondary rules is easy to overlook in the actual practice of the law.
The landowner surng his neighbour for trespass, or the prosecution in a criminal case,
normally do not need to stop and ask themselves, 'Why.does encroachment on some-
one else's land invite legal consequences?', or 'Why is it an offence to do what the
defendant has done?' - the law so provides, and that is all. The primary legal rules
being applied in these cases did not however spring up from nowhere: they exist
because Parliament passed particular legislation, or because a long line of judicial
decisions has established that the common law is to this or that effect. Thus there exist
secondary rules, to the effect that legislation passed by Parliament, <3.p.d the S2!!E!lon
law as expressed in judicial precedents, constitutes the law of the land-the body of
primary rules.
In international law, there exist similar secondary rules, but they are less clearly
defined, for a number of reasons. There is, for example, at the international level
neither a universal legislative body corresponding to a national Parliament, nor a
system of universal judicial jurisdiction which has built up a wide-ranging body of
precedent. At the municipal level, legal disputes are usually over the precise applica-
tIon or interpretation of rules, the existence of which is generally recognized: do the
circumstances of the case fall within the rule enunciated by the judges in a particular
line of cases, or within the purview of a particular statute, as correctly interpreted? At
the international level, disputes may just as often turn on whether the legal rule relied
on by one State exists at all as a legal rule, since there are controversial aspects of the
workings of the secondary rules. There may be recognition of a rule, but dispute
whether it is a rule binding on one or the other party to the dispute (since, as we shall
see, not all rules of international law are binding on all States).
These secondary rules are referred to in international law as the sources of inter-
national law. This terminology highlights the idea that a rule must come from
somewhere, as well as the idea that there is a flow, a process, which may take time: a
rule may exist conceptually, as a proposal or a draft, and later come to be accepted
as binding. The problem may then be to determine at what moment the rule
acquired the status of a rule of existing, binding, law. Prior to that moment, it forms
part of what is called lex ferenda (law which ought to be made, ie, developing or
embryonic law); thereafter it is part of the lex lata (law which has' been made,
positive law).
It is traditional to distinguish between what are called the material sources of
international law, and the formal sources. In relation to a particular rule which is
alleged to' be a rule of international law, the material source is simply the place-
normally a document of some kind-in which the terms of the rule are set out. This
may be a treaty, a resolution of the UN General Assembly, a proposal of the UN
International Law Commission, a judicial decision, a 'restatement' by a learned body,
or even a statement in a textbook. In identifying a material source, no account need
be taken of the legal authority of the textual instrument: for example, a treaty which
has never come into force at all, and is thus not binding on anyone as a treaty, may
THE SOURCES OF INTERNATIONAL LAW 119
still be the material source for a rule which has acquired the force of binding law by
another route. 3
The question of the authority for the rule as a rule of law, binding on States, is
determined by the for-mal source of the rule. The generally recognized formal sources
are identified in Article 38 of the Statute of the International Court of Justice, to be
examined in more detail below, but the two most important sources in practice are
treaties and international custom. If a rule is laid down in a treaty, then it is binding
on the States parties to that treaty, and the treaty is at once the material source and
the formal source of the rule. The rule may however be taken over and applied in the
practice of other States, not parties to the treaty, in such a way, and to such an extent,
that it takes on the character of a customary rule. For'these States, the material source
of the rule will still be the original treaty, but the formaJ. source will be international
custom.
-If the secondary rule defining the recognized sources of international law operates
to make it possible to determine what are the primary rules, governing the actual
conauct of States, what rule-presumably a tertiary rule-determines the identifica-
tion of the secondary rules? If the question is asked, 'Why should I comply with this
primary rule?', the answer may be, 'Because it is a rule of treaty-law, laid down
in 'a treaty to which you are a party'; but what then is the answer to the question,
'Why must I comply with treaty-Iawt The classic answer is that there is a principle
pacta sunt servanda, that what has been agreed to must be respected; this is an
eXj!mple of a secondary rule, one which defines treaties and agreements as formal
sources of international law. Theoretically one may then ask, 'But why should I
respect the principle pacta sunt servanda? Is there a higher principle still requiring
me to respect it?' Article 38 of the ICJ Statute, already referred to, provides that the
Court, in deciding disputes in accordance with international law, is to apply inter-
national treaties and conventions in force; but that is no more than a recognition of
treaties as one of the formal sources of primary rules. The Statute is in fact a material
source of the secondary rule that treaties make law, but not a formal source of
that rule.
Much legal ingenuity has been deployed to discuss this problem, to avoid an infinite
regression of se'~ondary, tertiary, quaternary, etc. rules, by establishing, for example, a
'fundamental norm' on which all international law is based. None of the theories
advanced commands universal assent; but nor are any of them actually essential
to international legal relations in practice. The issue is fortunately one of purely
academic interest. The realistic answer to the conundrum can probably only be
that this is ~he way international society operates, and has operated for centuries, and
probably the only way in which anything that can claim to be a society or community
could possibly operate.
3 For example, the 1933 Montevideo Convention on the Rights and Duties of States is regularly referred to
as containing a convenient legal definition of a 'State', and of the conditions which must be met for that status
to be acquired, despite the fact that for want of ratifications it never came into force as a treaty.
120 HUGH THIRLWAY
The doctrine of sources has attracted enormous amounts of discussion and
criticism among international lawyers, and various proposals h~ve been made for
re-thinking the subject, or for getting rid of the idea of (sources' altogether. While the
traditional view presents some anomalie~ and difficulties, it has so far proved the most
workable method of analysing the way in which rules and principles develop that
States in practice accept as governing their actions. The reasoning in the decisions of
the International Court of Justice has consistently used the traditional terminology
and structure of source-based law, and it seems unlikely that any other system will be
able to replace it.
II. THE ENUMERATION OF THE TRADITIONAL
SOURCES OF INTERNATIONAL LAW:
ARTICLE 38 OF THE STATUTE OF THE
INTERNATIONAL COURT OF JUSTICE
When the Permanent Court of International Justice was to be established in 1922, a
Commission of Jurists was appointed to draw up its Statute, the legal instrument to
govern its workings. The Permanent Court was to be the first standing international
tribunal to decide disputes between States; if States were to be willing to accept it, one
of the matters that had to be defined in advance was the nature of the law that the
Court would apply. There was' at the time an established tradition of referring inter-
State disputes to binding arbitration, on an ad hoc basis, or of submitting groups of
related disputes to a temporary standing body, usually called a Claims Commission;
but the terms of reference of arbitral bodies or claims commissions were almost
always defined in the international agreement (known as the compromis) by which
they were established.
The text which was adopted as Article 38 of the Permanent Court Statute was re-·
adopted after the Second World War, when the Permanent Court was wound up and
replaced by the International Court of Justice, with one change in the wording. The
present text is as follows:
1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. mternational conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. inte.r:national custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59,4 judicial decisions and the teachings of
4 Article 59 provides that 'The decision of the Court has no binding force except between the parties and
in respect of that particular case'.
THE SOURCES OF INTERNATIONAL LAW 121
the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.
The clause in the first paragraph (whose function is to decide in accordance with
international law such disputes as are submitted to it' was added in 1946; its effect
is to emphasize that, by applying what is mentioned in sub-paragraphs a to d, the
Court will be applying international law, ie, that the sources mentioned in those sub-
paragraphs constitute recognized sources of international law, and (presumably) the
sole sources of that law. That this was already the intention of the text is clear from
the records of its drafting; but it also follows from the inclusion of paragraph 2. To
.decide a case ex aequo et bono is by definition to decide otherwise than in accordance
with the applicable law: to decide simply what seems to the judge or arbitrator
the fairest solution in the circumstances. 5 Since the Court only possesses the power
to decide in this way when the parties agree to it, all other decisions must be in
accordance with law-and law as derived from the sources mentioned in paragraph l.
Article 38 has been much criticized as a definition' of the sources of international
law, and it has often been suggested that it is inadequate, out of date, or ill-adapted to
the conditions of modern international intercourse. As already noted, there have been
suggestions that the whole concept of (sources' should be thrown overboard, to be .
replaced by, for example, the (recognized manifestations of international law'; it has
also been suggested that the existence of additional sources should be accepted. Some
of these latter suggestions will be addressed in section IV below; but the fact is that no
new approach has acquired any endorsement in the practice of States, or in the
language of their claims against each other; and the International Court has in its
decisions consistently analysed international law in the terms of Article 38. It may of
course be objected ,that this is not necessarily significant, because whether or not
Article 38 is obsolete as a general statement, the Court remains bound by it; but if
there had really been a substantive change in international legal thinking' on the
question of sources, the Court might have been expected at the least to have taken
note of it, while drawing attention to its o~n inability to go beyond the terms of its
own Statute.
A. TREATIES AND CONVENTIONS IN FORCE
The principle pacta sunt servanda has already been mentioned as the basis for
the binding nature of treaties. The whole point of making a binding agreement is
that each of the parties should be able to rely on performance of the treaty by the
5 The Court has never been asked by the parties to a dispute to decide it in this way; but it has been
suggested (by Judge Oda) that maritime delimitation cases, in view of the difficulty of basing any specified
delimitation line on a framework of logically compelling legal argument, have in fact been decided on an
unavowed ex aequo et bono basis, with the tacit consent of the, parties.
122 HUGH THIRLWAY
other party or parties, even when such performance may have become onerous or
unwelcome to such other party or parties. Thus a treaty is one of the most evident
ways in which rules binding on two or more States may come into existence, and thus
an evident formal source oflaw. The 1969 Vienna Convention on the Law of Treaties6 ,
which is to a very large extent the codification of pre-existing general law on the
subject, states the principle in Article 26, under the heading 'Pacta sunt servanda':
'Every treaty is binding upon the parties to it and must be performed by them in
good faith'.
It has been argued that a treaty is better understood as a source of obligation, and
that the only rule of law in the matter is the bas,ic principle that treaties must be
observed (Fitzmaurice, 1958). Certainly the content of, let us say, a bilateral customs
treaty, setting rates of duties and tariffs on various goods, does not look much like
'law'. At the other extreme, there are more and more examples in modern law of so-
called 'law-making' treaties: multilateral conventions that lay down for the parties to
them a whole regime, as for example the Geneva Conventions in the field of humani-
tarian law, or the Vienna Convention on the Law of Treaties itself. The principle in
each case is however the same: that the States parties accept a commitment to certain
behaviour that would not be legally required of them in the absence of the treaty.
They may indeed by treaty vary or set aside the rules that general international law
imposes on all States, though such variation or exclusion is only effective between the
parties; and this power is subject to the limits imposed by jus cogens. 7 The traditional
doctrine that treaties are sources of law is therefore recommended by logic and
convenience.
If it is axiomatic that a party to a treaty is committed to what has been agreed in the
treaty, it is equally axiomatic that a State which is not a party to a treaty is under no
such oblig<j.tion. The principle res inter alios acta nee noeet nee prodest (a transaction
between others effects neither disadvantage nor benefit) is as valid as pacta sunt
servanda and can in fact be regarded as a corollary of that principle. As the Vienna
Convention on the Law of Treaties (Article 34) expresses the point: 'A treaty does not
create either obligations or rights for a third State without its consent'. The Vienna
Convention being itself a treaty, its codifying provisions are thus themselves only
applicable as treaty-law to the States which have ratified it.
There are two apparent exceptions to this principle-but they are only apparent.
First, the situation in which an obligation stated in a treaty is or becomes an
6 A multilateral convention adopted in 1969, on the basis of a draft prepared by the UN International Law
Commission, and accepted by a large number of States. It codifies practically the whole of the law of treaties
(see further Ch 6 below). '.
7 This concept will be dealt with more fully in Chapter 5: briefly:internationallaw is regarded as divided
into jus dispositivum, the rules of law from which States may freely contract out, by treaty; and jus cogens, a
category composed of a limited number of norms which, because of their importance in and to the inter-
national community, remain binding notwithstanding any agreement to the contrary (see Articles 53 and 64
of the Vienna Convention on the Law of Treaties). The concept is generally accepted, but there remains
considerable controversy as to its application, as to how rules of jus cogens acquire that status, and which rules
have in fact acquired it.
THE SOURCES OF INTERNATIONAL LAW 123
obligation of general customary law (a process to be examined below), in which case
the non-party State may be bound by the same substantive obligation, but as a matter
of customary law, and not by the effect of the treaty. This is in fact the case of the
Vienna Convention on the Law of Treaties itself; its provisions have frequently been
applied by the International Court in cases in which one or both of the parties was not
a party to the Convention, on the basis that such provisions stated rules which apply
to all States as customary law. Secondly, it is possible for a State not a party to a treaty
to accept an obligation stated in the treaty, or to derive a benefit from the treaty, if all
States concerned-the parties to the treaty and the outsider State-are so agreed. In
effect a new treaty is concluded e~ending the scope of the original treaty to the third
State. 8 '
The normal way in which a State becomes bound by the obligations provided for
in a treaty is by becoming a party to it, through the processes to be described in
Chapter 5. Where the treaty is a multilateral convention of the 'law-making' type, it is
possible that a State could, simply by conduct, indicate its acceptance of the regime of
the convention as applicable to itself. In the North Sea Continental Shelf case before
the International Court, it was argued by Denmark and the Netherlands that the
Federal Republic of Germany, which had. signed but not ratified the 1958 Geneva
Convention on the Continental Shelf, had 'by conduct, by public statements and
proclamations, and in other ways, ... unilaterally assumed the obligations of the
Convention; or ... manifested its acceptance of the conventional regime.'9 The Court
rejected this contention on the facts of the case, but did not, absolutely rule out any
a
possibility of such process; it did however make it clear, first that 'only a very
definite, very consistent course of conduct on the part of [the] State' could have the
~ect suggested, and secondly that there could be no question of a State being per-
mitted to claim rights or benefits under a treaty 'on the basis of a declared willingness
to be bound by it, or of conduct evincing acceptance of the conventional regime'. 10
Article 38 of the ICT Statute refers to 'treaties and conventions in force', thus
excluding treaties which have not, or not yet, come into force, or which have ceased to
be binding on the parties. 11 The question whether a particular treaty is 'in force'
8 See Articles 35 and 36 of the Vienna Convention on the Law of Treaties:
'Article 35: An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the
provision to be the means of establishing the obligation and the third State accepts that obligation in writing.
Article 36(1): A right arises for a third State from a provision of a treaty if the parties to the treaty intend the
provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and
the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty
otherwise provides.'
9 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 27.
10 Ibid, para 28. Underlying the distinction is of course the question of the consent of the original parties:
they may be presumed to have no objection to other States accepting the obligations of the Convention, but if
other States are to enjoy benefits under it there must be positive consent of the original parties, as indeed the
Vienna Convention requires. This point was made by the ICJ in the North Sea Continental Shelf case, ibid,
para 28.
11 The question whether neglected treaties cease to be binding through 'desuetude' was raised, but not
answered, before the ICJ in the Nuclear Tests and Aegean Sea Continental Shelf cases; it remains controversial.
124 HUGH THIRLWAY
between a particular pair of States is however not an absolute one, to be answered
simply by checking that each of them has ratified it. A new State may be bound by
certain treaties concluded by its predecessor, without a formal act of accession thereto.
A further complication is due to the possibility of reserVations made by parties when
signing or ratifying the treaty: in the case of a complex multilateral treaty, there may
in effect be a number of parallel regimes operating between different pairs of States,
depending on the extent to which a State may have excluded certain provisions of the
treaty by reservation, and the extent to which the reservation has been accepted (or
more precisely, not objected to) by other States parties. The operation of the rules as
to reservations will be explained more fully in Chapter 6.
B. CUSTOM
1. Introduction
It is probably a universal characteristic of human SOCIeties that many practices
which have grown up to regulate day-to-day relationships imperceptibly acquire a
status of inexorability: the way things have always been done becomes the way
things must be done. In treating custom as a source of legal rules, international
law does not deviate from the pattern discernible in municipal legal systems.
Historically, at the international level, once the authority of natural law, in the
sense of what was given by God or imposed by the nature of an international
society made up of independent princes, had weakened, it was natural to derive
legal obligations from the legitimate expectations created in others by conduct.
The precise nature and operation of the process has, however, always presented
obscurities.
One approach is to regard all custom as a form of tacit agreement: States behave to
each other in given circumstances in certain ways, which are found acceptable, and
thus tacitly assented to, first as a guide to future conduct and then, little by little, as
legally determining future conduct. The difficulty of this analysis is that if agreement
makes customary law, absence of agreement justifies exemption from customary law.
On that basis, a given rule would only be binding on those States that had participated
in its development, and so shown their assent to the rule. Yet it is generally recognized
that, subject to two exceptions, to be indicated below, a rule of general customary
international law is binding on all States, whether or not they have participated in the
practice from which it sprang. The problem is particularly acute in the case of new
States: during the period of decolonization after the Second World War, some attempt
was made by the newly independent States to argue that they began life with a clean
slate, so far as rules of customary law were concerned. They claimed to be able to pick
and choose which established rules of law they would accept, and which they would
reject. This view was not accepted by other States, and quietly abandoned by its
adherents. It was probably realized that it could have been a two-edged sword; that
most rules of general custom are such that a State which rejects one of them today in
THE SOURCES OF INTERNATIONAL LAW 12 5
one dispute, may find it needs to invoke the same rule in its favour tomorrow in a
different dispute. 12
2. The two-element theory
The traditional doctrine is that the mere fact of consistent international practice in
a particular sense is not enough, in itself, to create a rule of law in the sense of
the practice; an additional element is required. Thus classical international law sees
customary rules as resulting from the combination of two elements: an established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinio juris sive necessitatis (opinion as to law or necessity), usually
abbreviated to opinio juris. The judicial locus classicus on the point is the ICJ judgment
in the North Sea Continental Shelf case; the Court was discussing the process by which
a treaty provision might generate a rule of customary law, but its analysis is applicable
to custom-creation generally: •
Not only must the acts concerned amount to a settled practice, but they must also be such,
or be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the
existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. 13
The idea that State practice, to be significant, must be accompanied by a conviction
of adhering to an existing rule of law, is here merely re-stated; it had long been
recognized in international law. It has however been frequently pointed out that it is
paradoxical in its implications: for how can a practice ever develop into a customary
rule if States have to believe the rule already exists before their acts of practice can be
significant for the creation of the rule? Or is it sufficient if initially States act in the
mistaken belief that a rule already exists, a case of communis error facit jus (a shared
mistake produces law)?
The problem has been argued over endlessly by legal writers, some of whom haye
sought to escape the dilemma by denying the two-element theory itself. It is clear that
the elements of practice and opinio are closely intertwined: the Court spoke of the
practice as 'evidence' of the existence of the opinio juris, and for some authors only
the psychological element is essential, the role of State practice being merely to prove
the existence of that element. This makes it possible to see a rule of international
customary law where there is insufficient practice, or none, but there is other evidence
that States believe in the existence of a rule of law; this is particularly relied on by
those who see General Assembly resolutions as law-creating. An alternative approach
12 The question of the application to a new State of treaties concluded by its predecessor, where each treaty
could be considered independently, continued to cause controversy.
13 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 77. See also Continental Shelf (Libyan
Arab Jamahiriya/Malta), Judgment, ICJ Reports 1985, p 13, para 27; Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v United States ofAmerica), Merits, Judgment, ICJ Reports 1986, p 14, paras 183
and 207.
126 HUGH THIRLWAY
is to see custom as essentially practice, the only relevance of the beliefs or intention of
the States involved in the practice being to exclude practices which are regarded by all
concerned as dictated merely by courtesy or comity, without any legal commitment to
continued observance.
Since the opinio juris is a state of mind, there is an evident difficulty in attributing
it to an entity like a State; and in any event it has to be deduced from the State's
pronouncements and actions, particularly the actions alleged to constitute the
'practice' element of the custom. It should not be overlooked that State practice is
two-sided; one State asserts a right, either explicitly or by acting in a way that
impliedly constitutes such an assertion, and the State or States affected by the claim
then react either by objecting or refraining from objection. The practice on the two
sides adds up to imply a customary rule, supporting the claim if no protest is made,
or excluding the claim if there is a protest. The accumulation of instances of the one
kind or the other constitutes the overall practice required for establishment of a
customary rule.
It also follows from the psychological requirement of opinio juris, the consciousness
of conforming to a rule, that if the acts of practice are to be attributed to a motive
other than such consciousness, they cannot show opinio juris. This point also arose in
the North Sea case: the Court, when considering whether a rule of maritime delimita-
tion laid down in the 1958 Geneva Convention on the Continental Shelf had become
a customary rule, noted that a number of instances of delimitation complying with
the rule were delimitations effected by States parties to the Convention. Those States
'were therefore presumably ... acting ... in the application of the Convention', and
thus 'From their action no inference could legitimately be drawn as to the existence of
a rule of customary law .. .'14
Similar reasoning may be applied to the situation of States which, for one reason or
another, cannot participate in a practice giving rise to a customary rule: an obvious
example is that of land-locked States in relation to a rule concerning the delimitation
of maritime areas off the coasts of coastal States. Such States may have a view as to the
existence of such a rule, but one which cannot be demonstrated by acts of practice,
and thus not a true opinio juris. It was probably this consideration that led the
International Court, in the North Sea case, to refer to the importance, in assessing the
law-creative effect of State practice, of the participation in it of 'States whose interests
are specially affected'.15 More controversial was the question that arose in the case
concerning the Legality of the Threat or Use of Nuclear Weapons: was the practice of
the States that actu;illy possessed such weapons more significant than that of the
States which did not? The Court did not, in its advisory opinion, comment directly on
the point.
A further problem of a similar nature is the determination of customary law in a
field in which there is no practice at all, because the subject matter is new. This was
14 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 76.
15 Ibid, para 74.
THE SOURCES OF INTERNATIONAL LAW 127
the case when the first satellites were launched into space, and the idea of a landing
on the moon or other celestial bodies began to look like something more' than an
impractical dream. Did a satellite, in orbiting the earth, infringe the sovereignty of
the States whose territory it overflew? Were celestial bodies open to appropriation and
sovereignty in the same way as unoccupied territories on earth? On the first point, the
only practice at the time of the Russian Sputnik was the launching of that object itself,
and the reaction, or lack of reaction, of other States: on the second point, there was no
practice, and unlikely to be any for a number of years. The problem was solved by
international treaty; 16 but it was in this context that the suggestion was made that there
had come into existence a new form of customary law, usually known as 'instant
custom'. According to this view, first advanced in 1965 (Cheng, 1965), custom could
be deduced from declarations in General Assembly resolutions, such resolutions con-
stituting at once elements of State practice and evidence of the necessary opinio juris.
This theory, though influential for a time, never gained full acceptance, and eventually
it was implicitly rejected by the International Court in the cases of Military and
Paramilitary Activities in and against Nicaragua17 and Legality of the Threat or Use of
Nuclear Weapons,18 in which General Assembly resolutio+ls were treated as evidence of
opinio juris, but not as acts of State practice. The position appears to be that in a field
of activity in which there has not yet been any opportunity for State practice, there is
no customary law in existence.
3. Divergent practice
The settled practice required to establish a rule of customary law does not need to be
the practice of every single State of the world, as long as it is widespread and consist-
ent. A special problem is that of the divergence between States' assertion of the
existence of a particular rule of customary law, and their practice inconsistent with it.
In the field of human rights law, for example, it is probably the case that the municipal
law of practically every State of the world prohibits torture, and States are generally
agreed, in theory, that there is a rule of international law forbidding it; yet there is '
no doubt that torture continues to be widely practised. Can a rule which flies in
the face of consistent practice still be said to have existence as one of customary law?
An observation of the International Court in the case of Military and Paramilitary
Activities in and against Nicaragua, in connection with the question of the existence of
customary rules forbidding the use of force or intervention, is in point here:
It is not to be expected that in the practice of States the application of the rules in question
should have been perfect, in the sense that States should have refrained, with complete
consistency, from the use, of force or from intervention in each other's internal affairs. The
Court does not consider that, for a rule to be established as customary, the corresponding
]6 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies (1967),610 UNTS, P 205.
17 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
Merits, Judgment, ICJ Reports 1986, p 14, paras 184 and 188.
18 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, para 73.
 HUGH THIRLWAY
128
practice must be in absolutely rigorous conformity with the rule. In order to deduce
the existence of customary rules, the Court deems it sufficient that the conduct 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 recognition of a new rule. If a State acts in a way prima facie inconsis-
tent with a recognized rule, but defends its conduct by appealing to exceptions or justi-
fications 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. 19
The Court here rules that conduct inconsistent with an existing rule is not necessarily
an indication of the recognition, or even the emergence, of a new rule; but it does at
the same time recognize that this is a way in which a new rule may be discerned. Later
in the same decision, discussing the principle of non-intervention, it observed that
'Reliance by a State on a novel right or an unprecedented exception to the principle
might, if shared in principle by other States, tend toward a modification of customary
internationallaw'.20 The paradox of opinio juris is of course here emphasized: if a State
decides to act in a way inconsistent with a recognized rule of custom, it will no doubt
have good and sufficient reason for doing so, and perhaps even for thinking that its
approach should be generalized-that the rule needs to be modified consistently with
its action. It will however, almost by definition, not be acting because it is convinced
that there is already a new rule. The process by which customary rules change and
develop thus presents theoretical difficulties; but it is a process which does occur.
Customary law in the traditional conception of it is not a rigid and unchangeable
system, though it is sometimes criticized as being such.
An important difference between customary law and law derived from treaties is
that, as already observed, in principle customary law is applicable to all States without
exception, while treaty-law is, as we have seen, applicable as such only to the parties to
the particular treaty. A State which relies in a dispute on a rule of treaty-law has to
establish that the other party to the dispute is bound by the treaty; whereas if a claim
is based on general customary law, it is sufficient to establish that the rule exists in
customary law, and there is no need to show that the other party has accepted it, or
participated in the practice from which the rule derives. 21 There are two exceptions
to this principle: alongside general customary law there exist rules of special or local
customary law, which are applicable only within a defined group of States; and it is in
principle possible for a State which does not accept a rule which is becoming standard
international practice to make clear its opposition to it, in which case it will be
19 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
Merits, Judgment, IeJ Reports 1986, p 14, para 186.
20 Ibid, para 207.
21 If the dispute is subjected to arbitration or judicial settlement, there is theoretically no need even to
establish the existence of the rule; according to the principle jura novit curia (the court knows the law),
no proof of general rules of law is required. However, in practice litigant States do endeavour to prove the
existence of the rules of law on which they base their claims.
THE SOURCES OF INTERNATIONAL LAW 12 9
exempted from the rule when it does become a rule oflaw, having the status of what is
generally called a persistent objector.
A well-known rule of local customary law is that relating to the practice of diplo-
matic asylum in Latin America, whereby the States of the region recognize the right of
the embassies of other States of the region to give asylum to political fugitives. The
rule is purely local in that it is not asserted in favour of, or against, States outside the
region: for example, neither the British Embassy in Buenos Aires, nor the Argentine
Embassy in London, would be regarded as entitled to offer asylum. The International
Court had to consider the detailed application of the rule in the Asylum and Raya de
la Torre cases, in which Colombia relied, against Peru, on 'an alleged regional or local
custom peculiar to Latin-American States'. In the Asylum case the Court observed
that:
The Party which relies on a custom of this kind must prove that this custom is established in
such a manner that it has become binding on the other Party. The Colombian Government
must prove that the rule invoked by it is in accordance with a constant and uniform usage
practised by the States in question, and that this usage is the expression of a right appertain-
ing to the State granting asylum and a duty incumbent on the territorial State. 22
Further on in its judgment, the Court held that 'even if such a custom existed between
certain Latin-American States only, it could not be invoked against Peru which, far
from having by its attitude adhered to it, has on the contrary repudiated it .. .'.23 This
has been held by some commentators to constitute a finding that Peru had the status
of 'persistent objector', to be discussed in a moment; but it can also be understood as
a finding that the regional custom, at least on the specific point in dispute, applied to a
group of States which did not include Peru.
It has even been held that a special custom may exist between two States only: in the
Right of Passage over Indian Territory case, Portugal relied on such a custom as regulat-
ing the relationship between itself and India concerning access to certain Portuguese
enclaves in Indian territory. The Court held that:
It is difficult to see why the number of States between which a local custom may be estab-
lished on the basis of long practice must necessarily be larger than two. The Court sees no
reason why long continued practice between two States accepted by them as regulating their
24
relations should not form the basis of mutual rights and obligations between the two States.
The notion of the 'persistent objector' has been identified in the reasoning in the
Asylum case; but the idea is usually traced back to the earlier Fisheries case between the
UK and Norway, which concerned the legality of the baselines drawn by Norway
22 Asylum, Judgment, IeJ Reports 1950, p 266 at p 276.
23 Ibid, pp 277-278.
24 Right of Passage over Indian Territory, Merits, Judgment, IeJ Reports 1960, p 6 at p 39. Cases of this kind
are likely to be rare, since it would normally be more appropriate to analyse such a situation as one of tacit
agreement, ie, in effect governed by treaty-law. In the Right of Passage case this interpretation would have
raised problems of succession, the arrangement dating back to the Mughal period, and left undisturbed by the
successive British and independent Indian governments.
130 HUGH THIRLWAY
around its coasts in order to calculate the breadth of its territorial sea. The UK argued
that the Norwegian baselines were inconsistent with a rule of customary law referred
to as the 'ten-mile rule', but the Court was not satisfied that any such general rule of
customary law existed. However it then added:
In any event the ten-mile rule would appear to be inapplicable as against Norway inasmuch
as she has always opposed any attempt to apply it to the Norwegian coast.25
As a result of, in particular, a very influential article by Sir Gerald Fitzmaurice
(Fitzmaurice, 1953), it became accepted by most scholars that a State which objected
consistently to the application of a rule of law while it was still in the process of
becoming such a rule-in other words, while practice consistent with the possible rule
was still accumulating, but before the rule could be regarded as established-could
continue to 'opt out' of the application of the rule even after it had acquired the status
of a rule of general customary law.
This is an attractive theory, since if there were no possibility of dissent from a
nascent rule, customary law would be created by the majority of States and imposed
willy-nilly on the minority; but there is little State practice to support it (and if it
exists, it is itself a rule of customary law established by practice), and its very existence
has been questioned by commentators (Charney, 1993). What is certain is that
customary law is not made simply by majority: in the case of Legality of the Threat or
Use of Nuclear Weapons, the Court accepted that the opposition of the handful of
nuclear States to any customary rule prohibiting such weapons blocked the creation
of such a rule, even though it was favoured by a substantial majority of the States of
the world.
C. THE GENERAL PRINCIPLES OF LAW
When Article 38 of the Statute of the Permanent Court was being drafted, the Com-
mission of Jurists was concerned that in some cases the future Court might find that
the issues in dispute before it were not governed by any treaty, and that no established
rule of customary law either could be found to determine them. It was thought
undesirable, and possibly inappropriate in principle,_ that the Court should be obliged
to declare what is known as a non liquet-a finding that a particular claim could
neither be upheld nor rejected, for lack of any existing applicable rule oflaw. This is to
be distinguished from a finding that a particular claim is not supported by a positive
rule of law, which is tantamount to a finding that there exists a negative rule of law.
For example, in the Barcelona Traction, Light and Power Co case,26 Belgium claimed
that it could demand reparation from Spain for the economic loss suffered by Belgian
shareholders in a Canadian company as a result of the bankruptcy of the company in
Spain-allegedly brought about by unlawful action attributable to Spain. The Belgian
25 Fisheries, Judgment, ICJ Reports 1951, p 116 at p 13l.
26 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3.
THE SOURCES OF INTERNATIONAL LAW 131
claim was dismissed, on the ground that in customary law, only the national State of
the company (Canada) could seek reparation; this was not a non liquet, a finding that
there was no law on the point, but a finding that the specific rule relied on by Belgium
did not exist in law.
The extent to which international legal relations were governed in the 1920s, at
the time of the Commission's work, by anything beyond treaties and custom, was
obscure, but the Commission was able to agree that, failing one of those sources, the
Court should apply 'the general principles of law recognized by civilized nations'.
Up to the present, neither the Permanent Court nor the ICJ has based a decision on
such principles, though there are decisions by arbitral bodies (to whom, of course,
Article 38 of the ICT Statute has no direct application) which have relied on the
concept. There is however no unanimity among scholars as to the nature of the
principles which may be invoked under this head. There are broadly two possible
interpretations.
According to one interpretation, the principles in question are those which can be
derived from a comparison of the various systems of municipal law, and the extrac-
tion of such principles as appear to be shared by all, or a majority, of them.2 7 This
interpretation gives force to the reference to the principles being those 'recognized
by civilized nations'; the term 'civilized' is now out of place, but at the time it
was apparently included inasmuch as some legal systems were then' regarded as
insufficiently developed to serve as a standard of comparison. 28 In line with this
interpretation, parties to cases before the ICJ have at times invoked comparative
studies of municipal law. In the case, already mentioned, of Right of Passage over
Indian Territory, Portugal argued that general principles of law supported its right
to passage from the coast to its enclaves of territory, and adduced a comparative study
of the provisions in various legal systems for what may be called 'rights of way
of necessity'. When for the first time an application was made by a State (Malta) to
intervene in a case between two other States (Tunisia and Libya) on the basis of
having an interest which might be affected by the decision in the case (a possibility
referred to in Article 62 of the Court's Statute), Malta similarly relied on a com-
parative law study showing the conditions and modalities of intervention in judicial
proceedings in various national courts.
An alternative interpretation is to the effect that, while the Commission of
Jurists may have had primarily in view the legal principles shared by municipal legal
orders, the principles to be applied by the Court also include general principles
applicable directly to international legal relations, and general principles applicable to
17 A pioneering and influential work on this subject was Lauterpacht (1927). A clearer statement of the
derivation of general principles from national systems is to be found in the Rome Statute of the International
Criminal Court: 'general principles of law derived by the Court from national laws of legal systems of the
world' (Article 21(1)(c».
28 In the Abu Dhabi arbitration in 1951, 18 ILR 144, the arbitrator found that the law of Abu Dhabi
contained no legal principles that could be applied to modern commercial instruments, and could not
therefore be applied to an oil concession.
 132 HUGH THIRLWAY
legal relations generally. Many of these find expression in customary law, and
therefore exist as rules derived from that source; others are in effect assertions
of secondary rules (of the kind defined in the Introduction to this chapter),
eg, the principle pacta sunt servanda. Some are applied unquestioningly as self-
evident: for example the principles already mentioned for determining the relation-
ship between successive treaties (and possibly successive legal rules generally)-the
principles that the special prevails over the general, and that the later prevails over
the earlier.
There is however a striking lack of evidence in international practice and juris-
prudence of claims to .a specific right of a concrete nature being asserted or upheld on
the basis simply of the general principles of law. It may be that such a phenomenon is
inconsistent with the nature of such principles; at all events, this particular source of
law is of less practical importance in determining the rights and obligations of States
in their regular relations.
D. SUBSIDIARY SOURCES: JUDICIAL DECISIONS AND TEACHINGS
Paragraph led) of Article 38 makes a clear distinction between, on the one hand,
the sources mentioned in the preceding paragraphs, and on the other, judicial
decisions and teachings, inasmuch as it refers to the latter as being merely 'sub-
sidiary means for the determination of rules of law'. The reason for this is evident:
if a rule of international law is stated in a judicial decision, or in a textbook, it will
be stated as a rule deriving either from treaty, custom, or the general principles of
law. The judge, or the author of the textbook, will not assert that the rule stated is
law because he has stated it; he will state it because he considers that it derives from
one of the three principal sources indicated in paragraphs (a) to (c) of Article 38.
The first three sources of Article 38 are formal sources; those of paragraph (d) are
material rather than formal sources, but material sources having a special degree of
authority.
This was so even in the early days of the development of international law, when
the opinions of eminent legal writers such as Vattel, Grotius, Bynkershoek, or Vittoria
carried much more weight than do the authors of even the most respected textbooks
of today. Those eminent classical authors based their views much more on natural
law than on State practice or judicial decisions. Natural law, by definition, as it were, is
only visible in the form stated by legal authors; and the greater the authority of the
author, the more trust is to be placed in his definition of what natural law prescribes.
Nevertheless, the authority of the law stated as natural law rested on what would now
be called the general principles of law, and not on the say-so of the writer, whatever
his eminence.
Now that there exists a much greater body of judicial and arbitral decisions enunci-
ating rules of law, the emphasis in practice has shifted to the contribution made by
such decisions, and away from the views of 'the most highly qualified publicists of
the various nations'. Furthermore, the judges and arbitrators are more often than
THE SOURCES OF INTERNATIONAL LAW 133
not themselves eminent scholars and practitioners, so that the distinction between
judicial precedent and teachings is not a sharp one. It remains the case, however, that
States involved in a dispute, or their counsel, will cite the leading textbooks and
monographs in support of their claims, as will arbitrators and individual judges of the
ICJ in separate or dissenting opinions. The Court itself does not quote teachings, and
only rarely refers to arbitral decisions; it does however habitually cite its own previous
decisions when deciding a point of customary law, to such an extent that it has been
accused of paying these more attention than the actual State practice creative of the
rules it is called upon to state.
The judicial decisions referred to in Article 38 of course include the decisions of the
ICJ, as being of the highest authority. The Court has however·made clear that, even for
the Court itself, they are not in the nature of binding precedents. In a recent case in
which one of the points in issue was directly covered by an earlier decision, the Court
said in relation to that decision: 'It is not a question of holding [the parties to the
current case] to decisions reached by the Court in previous cases. The real question
is whether, in this case, there is cause not to follow the reasoning and conclusions of
earlier cases'. 29
The scope of Article 38(l)(d) is however not limited to the decisions of inter-
national courts and tribunals; they include the decisions of munic.ipal courts also.
Such decisions may however playa dual role: on the one hand they may contain a
useful statement of international' law on a particular point (thus constituting a
material source); on the other, the courts of a State are organs of the State and their
decisions may also rank as State practice on a question of customary law. In the lCJ
case concerning the Arrest Warrant, the question was whether Heads of State and
Foreign Ministers enjoy absolute immunity from prosecution for crimes allegedly
committed during their period of office, and whether there is an exception to this rule
in the case of war crimes or crimes against humanity. The parties (Belgium and the
Congo) both relied on decisions on the point by the UK House of Lords in the
Pinochet case30 and the French Cour de cassation in the Qadaffi case. 31 The statements
of international law in those decisions could have been regarded as 'subsidiary means'
for the determination of the customary law on the subject; they were however pre-
sented as evidence of State practice, and the Court dealt with them as such. 32 The
Court referred to the 'few' decisions of national courts on the question; the paucity of
practice was obviously relevant to the question whether a customary rule had become
established (as explained in section 2 above). But if the decisions had been classified as
29 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, ICJ
Reports 1998, p 275, para 28.
30 R v Bow Street Mevopolitan Stipendiary, ex parte Pinochet Ugarte (Amnesty International Intervening),
(No 3) [2000] AC 151; [1999] 2 All ER 97.
31 SOS Attentat and Castelnau d'Esnault v Qadajfi, Head of State of the State of Libya, France, Court of
Cassation, criminal chamber, 13 March 2000, No 1414.
32 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and
Merits, Judgment, ICJ Reports 2002, p 3, paras 57, 58.
 134 HUGH THIRLWAY
'subsidiary means' under Article 38(1)(d), the only question would have been
whether they correctly stated the law, not whether they represented a widespread
practice of national judicial bodies. 33
III. THE RELATIONSHIP BETWEEN THE SOURCES
OF INTERNATIONAL LAW
A. RELATIONSHIP BETWEEN TREATY AND CUSTOM
The State practice which is required for the establishment of a rule of customary
law has to take the form of action by a State on the international level, that is to
say, in relation to one or more other States. An act of a State that has no impact
outside its territory, or in relation only to its own subjects, is irrelevant as State
practice. One of the most normal and essential acts of a State in relation to another
State or States is however the conclusion of a treaty or 'agreement; and consequently
treaties may well serve as acts of practice significant for the development of custom.
~~e ~rea~Jn itsel~ creates certain ri.~~ts a~~ obliga~~~VY:W~h..Cl!en()t ofa custom~ry
~~t.~_~ but if a number of States make a habit of concluding treaties containing
~e:.t~in ~~dar..(r.p.r2~~i~ri~?_th~ th~y, ~"suit~bi~-~~~~mst~~~~, be taken
~how that .~~Y.l"~cQgIl~~ .~~ exi~t~~~.~f~-,~llst~~ '~~q~iring them to do so. The .
difficulty is of course that it can 'also be argued that the ~ery fact that States have
recourse to treaties to establish certain rules shows that they consider that those rules
would not be applicable if no treaty were concluded, ie, that there is no customary
rule of that nature. This is a difficulty that has caused controversy, for example,
over the question whether there is a customary rule to the effect that a State is
not bound to extradite persons accused of political offences. A provision to that effect
is almost always included in extradition treaties; does that signify the existence of a
custom, or of a need which has to be met on each and every occasion by a special
clause?
As observed above, ~ a re~~...?i_~~!:"~lk.l. existe..n~~_QLt;r~aties_and .custom
as sources of int~rI1<:lti,??:al_!a~_0!_~~!~~~~~0~.~~y .~<:.~()verne.c:l. S!J:!l~H9-.l1e..ously
a treaty, as regards the relationships between the parties to the treaty, and by
customary rules, as regards the relationship between non-parties, or between a
party to the treaty and a non-party. It has even been held, by the International
Court in the case of Military and Paramilitary Activities in and against Nicaragua,
that where a customary rule has been replaced by a multilateral treaty, the customary
rule continues to exist, not only for non-parties to the treaty, but also for the parties
33 However, since they would only be subsidiary means of proving the law, it would have been necessary to
show that there was other State practice supporting a customary rule.
THE SOURCES OF INTERNATIONAL LAW 135
to it, 'behind' the treaty, as it were. Such continued existence will normally be of
purely theoretical importance, so long as the treaty continues to bind, but in the
case referred to, the customary rule rather than the treaty rule fell to be applied by
the Court (for special reasons connected with the nature of the Court's jurisdiction in
the case).
The relationship between treaty and customary rules is not necessarily static, how-
ever:-InUieNorlh Sea Continental Shelf case, the Internati011~:rCouriTden~~(th~~~
situations'inwhich the existence or creation of a custoIIlary rllle might be related to
~reaty provisi~ns. in the first place, as already observed, a treaty may embody already
established rules of customary law, so that it is, tothat extent, simply declaratory' of
-eXiSting~~~~thiij~i~iairl.1>.'". the case for some provisions' at least of, for example,
-··th.e-VleD.na Convention on Diplom~tic Relati~~s, or theVieruia' ConventIon on the
L-aw of tre~tie§;' ~nd as regards the convention in issue in the North S~a cases, the
19-58-G~~~~a Conve~tion on th~ Continental Shelf, the Court recognized that' some
provisions represented existing customary law, though not the delimitation Article
(Article 6).
~~~?n~r~i~ .!.?-p~.~slbl~__t!ta!.~ !ll~t~ateral rr:eaty. stat~s_rules and principles which
can be found reflected in the practice of States prior to the 'adoption of the treaty, so
iliif'they'can be regarded as lex ferenda which is ripe for transition to lex lata; in such
case, the processes of negotiation and adoption of the treaty may be regarded as
to' having what the Court referred to asa-'cryStaIIizlllg-e-ffecToii-rhe-iiascent-customary
·-rUles. This is p~obabiy-partlcU1arfy ilkery-l{the treatY resuJ.ts 'from the labours -of"the
International Law Commission, whose methods of work allow for considerable input
from governments, which is taken into account in the drafting of texts presented for
incorporation in a convention.
Finally, it may be that,. after the convention has come into force, States other than
th~' parties t;-itfi~d -it~;-~Yi~~~t-:t9 .p(lp-ply tb.~ .. ~o.nyenti~n rui~~.iu.thS!~-~~~t~~
.i-clatlOns, mer this--may -~~nstitute State practice leading to the development of a
cu-stomgJ-}'-"rul~ . he contention that this had occurred in relation to Article 6 of the
'1'9s8 G~~~va . onvention vv3ls r~!5~~~~fb:r th~~~~t-~~~~~~~;~g-'"-''''' ...... -"- -- .. -.-... .'-.-
treating that Article as a norm-creating provision which has constituted the foundation of,
or has generated a rule which, while only conventional or contractual in its origin, has since
passed into the general corpus of international law, and is now accepted as such by the opinio
juris, so as to have become binding even for countries which have never, and do not, become
parties to the Convention. There is no doubt that this process is a perfectly possible one and
does from time to time occur; it constitutes indeed one of the recognized methods by which
new rules of customary international law may be formed. At the same time this result is not
lightly to be regarded as having been attained. 34
The Court pointed out that the rule in question would have to be 'of a fundamentally
norm-creating character such as could be regarded as forming the basis of a general
34 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 71.
 HUGH THIRLWAY
rule of law';35 not every rule which finds a place in a multilateral convention is
appropriate for general adoption. For a suitable rule to pass into customary law, 'it
might be that, even without the passage of any considerable period of time, a very
widespread and representative participation in the convention might suffice of itself',
and it was in this respect that the Court emphasized, as already mentioned, the
role of 'States whose interests were specially affected'. 36 What the Court regarded as
'indispensable' was that
within the period in question, short though it might be, State practice, including that
of States whose interests are specially affected, should have been extensive and virtually
uniform in the sense of the provision invoked;-and should moreover have occurred in
such a way as to show a general recognition that a rule of law or legal obligation
is involved. 37
B. THE HIERARCHY OF SOURCES
In general, when there exists more than one rule that is prima facie applicable to a
given situation, the choice between them can be made by the application of one or
other of two principles: lex specialis derogat generali and lex posterior derogat priori:
that is to say, the special rule overrides the general rule and the later rule overrides
the earlier rule. However, when these principles are applied to the acts of a legislator,
they may be regarded as ways of interpreting legislative intention: normally a new law
is intended to replace or modify an older law, and legislation providing for a special
case or regime is intended to constitute an exception to any general regime. There is
normally no difficulty in applying these principles to treaties, which represent the
shared intentions of the parties,38 but it is less clear that they can operate in relation
to custom.
Since, as explained above, it was the intention of the draftsmen of the PCIJ Statute
that the 'general principles of law' should provide a fall-back source of law in the
event that no treaty and no customary rule could be found to apply to a given
situation, it is clear that to this extent there exists a hierarchy of sources. If a treaty rule
or a customary rule exists, then there is no possibility of appealing to the general
principles of law to exclude or modify it. The text of Article 38 does not however
indicate whether there was a hierarchy of application between custom and treaty; a
proposed provision, indicating specifically that the Court should apply the sources
named in the order in which they were mentioned in that Article, was rejected during
the drafting.
35 Ibid, para 72.
36 Ibid, para 73.
37 Ibid, para 74.
38 Article 30 of the Vienna Convention on the Law of Treaties, dealing with 'Application of successive
treaties relating to the same subject-matter', in effect applies first the criterion of the actual intention of the
parties, and then a combination of the two principles here discussed.
THE SOURCES OF INTERNATIONAL LAW 137
It will normally be the case that a treaty is lex specialis, and as such prevails over
any inconsistent rules of customary law, or at least such as existed at the time of
the conclusion of the treaty. It is to be presumed that the parties to the treaty
were aware of the existing customary rule, and decided to provide otherwise in
their treaty precisely in order to exclude the customary rule. More difficult is the
question whether a custom which arises subsequently to the conclusion of a treaty,
and which might be regarded as lex specialis in· relation to the regime established by
the treaty, has the effect of overriding the treaty, or such part of it as is inconsistent
with the customary rule, as between the parties. If the new customary norm is
one accepted as jus cogens, then according to the Vienna Convention on the Law
of Treaties, not merely is any inconsistent provision in the treaty overridden, but 'any
existing treaty which is in conflict with that norm becomes void and terminates'
(Article 64).
Assuming however that the new norm is not of that nature, what is the position? If
the parties to the treaty have themselves contributed to the development of the new
customary rule by acting inconsistently with the treaty, or have adopted the custom-
ary practice in their relations after the rule has become established, then the situation
may be analysed as in effect a modification (or even perhaps an interpretation) of the
treaty. There is a well-settled practice of the Security Council, treating as valid a
resolution adopted over the abstention of one of the permanent members, despite the
requirement in Article 27(3) of the Charter for the 'concurring votes' of the perman-
ent members. This practice was upheld by the Court in the Namibia case,39 in terms
which left it obscure whether this was an agreed 'interpretation' of the Article, or an
agreed amendment; no reference was made to any subsequently developed rule of
custom.
The real problem arises when none of the parties, or only some of them, have
participated in the new customary rule. Article 41 of the Vienna Convention on
the Law of Treaties lays down a procedure for amendment of a multilateral treaty
between certain of the parties only, thereby excluding a tacit amendment of this kind;
but it is not certain that customary law is so exigent. At all events, the real question is
whether the new customary rule can be asserted against those of the parties to the
treaty that have not participated in it, or assented to it. One view of the matter is that
the very existence of the distinction between jus cogens and jus dispositivum implies
that a newly developed customary rule which is not jus cogens does not affect the
operation of a pre-existing treaty; but the point must probably be regarded as
unsettled.
39 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, IC! Reports 1971, p 16, paras
21-22.
 HUGH THIRLWAY THE SOURCES OF INTERNATIONAL LAW 139

B. SOME ADDITIONAL SOURCES OR QUASI-SOURCES

IV. IS THE ENUMERATION OF ARTICLE 38 THAT HAVE BEEN SUGGESTED
EXHAUSTIVE? POSSIBLE NEW OR
1. Unilateral acts
ADDITIONAL SOURCES
The place of unilateral acts of States in the structure of international law had been
regarded as somewhat marginal until the decision of the International Court in 1974
A. HOW CAN NEW SOURCES COME INTO EXISTENCE? in the Nuclear Tests cases. In those cases, the Court held that France had assumed
legally binding obligations through unilateral declarations, made to the world at large,
On the basis that the enumeration of sources of international law indicated in
to the effect that it would not hold any further atmospheric nuclear tests in the Pacific.
Article 38 of the PCIJ Statute was complete and exhaustive at the time of its
The Court laid down a general rule in the following terms:
drafting, there is a certain difficulty in postulating that a new source has come into
existence subsequently. The enumeration of sources is, as we have seen, a secondary It is well recognized that declarations made by way of unilateral acts, concerning legal
rule of law, one of those that lays down how the primary rules, those that directly or factual situations, may have the effect of creating legal obligations ... When it is the
govern conduct, may be created or modified. As was explained in the Introduction intention of the State making the declaration that it should become bound according to its
to this chapter, the quest for what might be called a 'tertiary' rule, one that lays terms, that intention confers on the declaration the character of a legal undertaking. 4o
down how the secondary rules might be created or modified, for a 'fundamental
The Court recognized that 'Of course, not all unilateral acts imply obligation ... ',41 but
norm' underlying all international law has, as we have seen, proved a vain one.
found on the facts that France had intended to enter into a binding commitment. As a
We must, it seems, be content to say that international society has established certain
result, the Court was able to hold that the purpose of the proceedings brought by
secondary rules that correspond to the nature of that society and are universally
Australia and New Zealand against France, namely a cessation of the atmospheric tests
accepted.
in the Pacific, had been achieved, and the case had therefore become 'without object'
Does it then follow that if the nature of international society changes, there may be
or moot.
a modification of the secondary rules, that is to say of the list of recognized sources of
The application of the traditional doctrine of sources to this decision posed prob-
law? It is certain that the nature of international society has changed radically since
lems. What was the formal source of France's obligation? It was not a treaty; neither of
the Treaty of Westphalia, and indeed even since the date of the preparation of the PCIJ
the other two States had indicated any acceptance of France's olive branch, so as to
Statute, in particular in view of the great increase in number of sovereign States, and give rise to a contractual or conventional obligation. The Court had also made it clear
in the complexity of their relations with each other. One cannot exclude a priori the
that it was not ruling on the vexed question whether France had any obligation under
possibility of a modification of the secondary rules.
customary law to stop its tests; if France was bound to do so, it was only because it had
But by what process is such modification to occur? In the absence of what we declared that it would do so. Was a unilateral act then to be treated as a new source of
have called tertiary rules, it is difficult to imagine any process that does not in effect
law?
involve invoking a secondary rule to effect a modification of a secondary rule.
This conclusion has been drawn by some scholars; but it does not seem to be an
For example, let us suppose that the resolutions of the UN General Assembly have ineluctable one. Notwithstanding the Court's sweeping general statement, quoted
become a new source of international law. How would one set about proving that this
above, the normal consequence of a unilateral declaration is either that it is accepted
was so? Presumably, by showing that in their relations with each other States asserted by the State or States to which it is addressed, and it will then become in effect part of
rules stated in such resolutions, and accepted such rules as binding when asserted
a treaty settlement; or it will be ignored and rejected, and the other State or States will
against them. This would however amount to saying that an international custom
not seek to enforce it, so that it will become a dead letter. Even without any explicit
had arisen whereby such resolutions created binding international law. It would
acceptance, the moment that one of the addressees of the unilateral declaration seeks
follow, either that a new source (resolutions) had arisen through the operation of
to rely on the legal obligation indicated in it, this will itself constitute the acceptance
an existing source (custom); or, perhaps more accurately, that the scope of custom as a
needed to convert it into a bilateral, conventional, relationship. The Nuclear Tests cases
source had become widened to include resolutions. On the latter view, a resolution
were exceptional in that, for reasons not relevant to the present discussion, the Court
would be (as it is now) a material source of law, but the formal source would be
was seeking to impose on Australia and New Zealand a settlement of their claims on
custom.

40 Nuclear Tests (Australia v France), Judgment, IeJ Reports 1974, p 253, para 43.
41 Ibid, para 44.
140 HUGH THIRLWAY
terms which they had not themselves accepted. Even if we do not go so far as to say
that the Nuclear Tests decisions were erroneous, to base a theory of sources on a
decision in a case the facts of which are practically unrepeatable, does not appear a
sound approach.
2. Equity
Invocations of equity have played an increasing part in international legal discourse of
recent years, but the exact nature of the concept is elusive. It has been said that
'"Whatever the legal reasoning of a court of justice, its decision must by definition be
just, and therefore in that sense equitable',42 which however does not carry matters
much further. The idea of 'equitable principles' or an 'equitable result' plays an
important part in the specialized field of maritime delimitation, both in judicial and
arbitral decisions and in Articles 74 and 83 of the 1982 United Nations Convention on
the Law of the Sea. Equity in many legal systems may playa moderating role in the
sense that when the rigorous application of accepted rules of law leads to a result
which appears unjust, equity may step in to adjust the outcome. This is in fact the way
in which the concept has developed historically, from Aristotle to the distinction
between common law and equity which still survives in the English legal system.
"Whether this is its role in international law, and if so whether it is its only role, is a
controversial issue.
We are. here concerned only with the question whether something bearing the
label 'equity' can be considered to be a formal source of law: that is to say, whether a
legal right or obligation can be asserted, which does not derive from any treaty or any
rule of customary law, simply on the basis of being 'equitable'. There is little support
for such a view either in State practice or in judicial decisions. In the Barcelona
Traction, Light and Power Co case, the Court, having dismissed the Belgian legal claim
against Spain (for injury to Belgian shareholders in the Canadian company), con-
sidered the possibility that 'considerations of equity might call for the possibility
of protection of the shareholders in question by their own national State'; it took
the view however that that hypothesis did not correspond to the circumstances
of the case.43 This might be read as implying that in different circumstances a claim
based on equity alone might have succeeded; but in fact it seems that the real point
was that customary law on the point is equitable in its effects, so that the point does
not arise.
Equity is probably best regarded, in words applied by the International Court to the
comparable principle of good faith, as one of the basic principles governing the
creation and performance of legal obligations, but 'not in itself a source of obligation
where none would otherwise exist'.44
42 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 88.
43 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3,
para 93.
44 Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction and Admissibility, Judgment,
ICJ Reports 1988, p 12, par~ 94.
THE SOURCES OF INTERNATIONAL LAW 141
3. Resolutions of the UN General Assembly
Many resolutions of the UN General Assembly are convenient material sources oflaw,
inasmuch as they state, with apparent authority, propositions of general law, and are
often assented to by a very large majority of the Members, and thus of the States of the
world. 45 It is therefore tempting to confer on them also the authority of a formal source
of law, to look no further than the resolution itself in order to assert the binding
quality of the rules enunciated. This is particularly so when it is difficult to discern
a consistent practice of States in application of those rules, adequate to permit the
conclusion that a customary rule exists.
The theoretical difficulties involved in seeing resolutions as an independent source
of law have already been adverted to. "When rules declared in resolutions have been
relied on in international litigation, the resolutions have been judicially assessed as
no more than declaratory of customary law, or at most as evidence of the existence of
the opinio juris. In the case of Military and Paramilitary Activities in and against
Nicaragua, the International Court declared that
The mere fact that States declare their recognition of certain rules is not sufficient for the
Court to consider these as part of customary international law, and as applicable as such to
those States.46
Had it considered that, independently of customary law, declarations in General
Assembly resolutions were creative of law as a formal source, it would surely have so
found.
4. The problem of 'superior norms'
In the classical theory of international law, any priority of conflicting rules or norms
was resolved simply according to the de facto hierarchy of the sources from which they
derived, coupled with the principles of the overriding effect of lex posterior and lex
specialis (see Section III.B above). For this purpose, the content of the rules in issue
was irrelevant, except insofar as it was taken into account to judge whether there was
in fact a conflict at all (the scope of each rule), and whether one rule was specialis in
relation to the other, and if so, which was which.
In more recent years, however, more and more attention has been paid to the
concept of jus cogens- the category of 'peremptory' legal norms, norms from which
no derogation by agreement is permitted. Exactly which norms can be so designated
in modern international law is still subject to some controversy, but it is accepted that
the status of peremptory norm derives from the importance of the content of the
45 For example, the Declaration on Principles of International Law Concerning Friendly Relations and
Cooperation among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV);
Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Beyond the
Limits of National Jurisdiction, GA Res 2749 (XXV); Declaration on the Establishment of a new International
Economic Order, GA Res 3202 (S-VI).
46 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
Merits, Judgment, ICJ Reports 1986, p 14, para 184.
142 HUGH THIRLWAY
THE SOURCES OF INTERNATIONAL LAW 143

norm to the international community: an example is the prohibition of genocide. A

the more individual States found it necessary to relate to each other, the greater the
further development is the assimilation of such norms to those creating 'obligations
need for generally respected rules and guidelines. Even the concept of 'natural law'
erga omnes' -obligations which are regarded as owed to the whole international
related to what was fitting and necessary for the good ordering of society; and the
community, with the practical consequence that the right to react to any violation of
positivist approach, which sees all law as established by the express or tacit agreement
the norm is not confined to the State or States directly injured or affected by the
of those subject to it, is in effect a prolongation of the 'social contract'.
violation, but appertains to every StateY A further linked concept was that of the
The establishment of the Permanent Court of International Justice brought to a
'international crime' introduced by the International Law Commission into its draft
focus the ideas as to the sources oflaw that had, over the years, made their appearance
Articles on State Responsibility, but deleted again at a later stage of the Commission's
in State practice, arbitral decisions, and the views of scholars. The definition given in
work.
Article 38 of the Statute of the Court has proved to embody a workable structure of
All these concepts will be examined more fully in Chapter 6; they are mentioned
recognized law-making processes, and despite the criticisms made of it, and the
here simply to draw attention to the theoretical and practical difficulties of analysing
multiplicity of new approaches to international law, 49 that definition seems likely to
their development in terms of the classical theory of sources. A rule of jus cogens is
continue to guide the international community and the international judge.
normally (perhaps necessarily) a rule of customary law,48 as is implied by the reference
in Article 63 of the Vienna Convention of the Law of Treaties to the development
of a new rule of this type after the conclusion of a treaty. To be such a rule at all, it
has to be based upon the consistent practice of States, backed by the opinio juris. REFERENCES
One would therefore expect that, for a rule to be one of jus cogens, or to give rise to
obligations erga omnes, there would have been practice of such a kind as to show a CHARNEY, R (1993), 'Universal Inter- Law' Symbolae Verzijl (The Hague:
conviction that the developing rule was of that specific nature, ie a sort of superior national Law', 87 AJIL 529. Nijhoff).
opinio juris. If a State endeavoured to rely on a treaty as justifying conduct otherwise HART, H (1994), The Concept of Law,
CHENG, B (1965), 'United Nations Resolu-
flagrantly in conflict with a rule of international law, and the universal reaction of revised edn (Oxford: Oxford University
tions on Outer Space: "Instant" Custom-
States was to assert that that rule was such that no derogation by treaty was permitted, ary Law?', Ind. JIL 23. Press).
this could be read as practice showing an opinio that the rule was one of jus cogens. KOLB, R (1998), 'The Formal Source of
Similarly, if a State not directly affected by a breach of international law took counter- FITZMAURICE, G (1953), 'The Law and
Ius Cogens in Public International Law',
measures against the offending State, and that State conceded its right to do so, this Procedure of the International Court,
53 Zeitschrift fur offentliches Recht, P 69.
1951-1954',30 BYIL 21.
would show an opinio that an obligation erga omnes was involved. In fact how- LAUTERPACHT, H (1927), Private Law
ever, that has not been at all the way in which norms of jus cogens and obligations - - (1958), 'Some Problems Regarding Sources and Analogies of International
erga omnes have come to be identified; and the first hypothesis, of assertion of a treaty the Formal Sources of International Law (London: Longmans, Green & Co).
as justifying conduct universally condemned, is a priori somewhat unlikely to be
realized.

FURTHER READING

v. CONCLUSION BYERS, M (1999), Custom, Power and the
Power of Rules (Cambridge: Cambridge
University Press): an excellent study of
Ubi societas, ibi jus. wherever there is a social structure, you will find law. This is
custom in current international law.
ultimately the only explanation for the development of international law, for the
respect generally shown for it by States as international actors, and for the general HIGGINS, R (1994), Problems and Process:
recognition of the 'secondary rules' whereby law acquires binding effect. Historically, International Law and How We Use It
(Oxford: Clarendon Press) (particularly
chapters 1 and 2): for a study from a
more 'policy-oriented' perspective.
MENDELSON, M (1995), 'The Subjective
Element in Customary International
Law', 66 BYIL 177: an eloquent plea for
the abandonment of the concept of opinio
juris.

47 See the judgment in the Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment,
ICJ Reports 1970, p 3, paras 33-35 and para 9l.
48 For an alternative view, that jus cogens is a matter of consensus, see the combative article by Kolb, 1998. 49 A useful panoramic view of a number of modern methodologies will be found in the Symposium
(1999),93 AJIL 293.
144 HUGH THIRLWAY
SCHACHTER, 0 (1989), 'Entangled Treaty
and Custom', in Dinstein, Y (ed.), Inter-
national Law at a Time of Perplexity:
Essays in Honour of Shabtai Rosenne,
p 717: on the inter-relationship of the two
sources in modern law.
THIRLWAY, HWA (1990), 'The Law and
Procedure of the International Court of
Justice, 1960-1989 (Part Two)', 61 BYIL
1: a survey of problems that have arisen
5
before the ICJ concerning the various
sources of international law.
INTERNATIONAL LAW AND
'RELATIVE NORMATIVITY'
Dinah Shelton
SUMMARY
'Relative normativity' concerns the nature and structure of international law. It involves
issues of hierarchy among sources and norms and implicates the rules of recognition by
which law is distinguished from norms that are not legally binding. Debates about relative
normativity currently centre on three topics. First, legal doctrine posits the existence
of superior or peremptory norms that override other norms and bind all States, including
objecting States. Although widely supported in the literature, little State practice or
judicial opinion recognizes or gives legal effect to such norms. Secondly, the expansion of
international law into many new subject areas, with a corresponding proliferation of inter-
national treaties and institutions, can produce confticts in substantive norms or procedures
within a given subject area or across legal regimes, necessitating means to reconcile or
prioritize the competing rules. Thirdly, States and international institutions increasingly
adopt texts that contain norms or statements of obligation, but which are not in a legally-
binding form. Such 'soft law' texts are political commitments that can lead to law <custom
or treaty) and they are sometimes as effective as law to address international problems,
but they are not law, and thus generally are subordinate to an applicable binding rule.
1. INTRODUCTION: THE CONCEPT OF
RELATIVE NORMATIVITY
'Relative normativity' is a question of hierarchy of norms and the definition of law.
As such, it concerns the nature, structure, and content of the international legal
system. In practice issues of relative normativity arise in determining whether a
legal rule exists to govern a problem, and in deciding whether priority must be given
to a specific rule or interpretation among several that may be applicable to a legal
matter or dispute.
 · DINAH SHELTON
Systems of law usually establish a hierarchy of norms based on the particular
source from which the norms derive. In national legal systems, it is commonplace for
the fundamental values of society to be given constitutional status and afforded
precedence in the event of a conflict with norms enacted by legislation or adopted by
administrative regulation; administrative rules themselves must conform to legislative
mandates, while written law usually takes precedence over unwritten law and legal
norms prevail over non-legal (political or moral) rules. The mode of legal reasoning
applied in practice is thus naturally hierarchical, establishing relationships and order
among normative statements and levels of authority (Koskenniemi, 1997).
The question of hierarchy or relative normativity in international law is unsettled
and controversial. There has been growing attention paid to the issue in the two
decades since a seminal article highly critical of the concept appeared in 1983 (Weil,
1983). In practice, conflicts among norms and their interpretation are probably
inevitable in the present, largely decentralized international legal system where each
State is entitled initially and equally to interpret for itself the scope of its obligations
and the means of implementation such obligations require. The interpretations or
determinations of applicable rules may vary considerably, making all international
law somewhat relative, in the absence of institutions competent to render authorita-
tive interpretations binding on all States.
Conceptual problems abound in determining relative normativity, in part because
almost every purported principle of precedence (eg, lex specialis derogate lex generali)
has exceptions and no rule establishes when to apply the principle and when to apply
the exception. 1 There appears to be a fundamental supremacy of process over content,
however, because the identification of legal norms and their relative normativity
occurs only through consideration of the procedural norms that allow recognition of
substantive rules. Some scholars argue from the ICJ Statute and from the sovereign
equality of States that no hierarchy exists and logically there can be none: inter-
national rules are equivalent, sources are equivalent, and procedures are equivalent
(Dupuy, 1995, pp 14-16) all deriving from the will of States. 2 Others point to
the concept of the community of States as a whole, expressed in Article 53 of the
Vienna Convention on the Law of Treaties (VCLT) as an emerging limit on unilateral
relativism (Salcedo, 1997, p 588).
Even identifying law can be problematic in a decentralized system like the inter-
national society of States. It is not always clear where law ends and non-law begins, or,
to use the common terminology, where 'soft' law should be placed. The consequences
can be significant. Effective application of the principle pacta sunt servanda-that
legal agreements should be carried out in good faith-proceeds from some basic
agreement about what constitutes a 'pacta' or legal agreement. The question often
1 Contrast, for example, the lCJ's 1971 Namibia opinion with its earlier approach to interpreting the
League of Nations mandate. Compare Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,
IC] Reports 1971, p 16 with South West Africa, Second Phase, Judgment, IC] Reports 1966, p 6.
2 See the 'Lotus', Judgment No 9, 1927, PCI], Ser A, No 10 at p 18.
INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 147
posed today is whether or not it is necessary for a norm to be contained in a legally
binding instrument in order for it to be accepted as binding (pacta). Traditional
international law clearly distinguished between binding and non-binding instru-
ments, and this distinction seems to remain, despite the growing body and variety of
'soft law' instruments.
States have agreed on the means to identify binding international obligations for
the purpose of resolving their disputes, but they have not settled on a hierarchy of
norms. As formulated initially in the Statute of the Permanent Court of International
Justice and iterated in the Statute of the International Court of Justice, the Court
should decide an international dispute primarily through application of international
conventions and international custom. 3 The Statute makes no reference to hierarchy,
except by listing doctrine and judicial decisions as 'subsidiary' and evidentiary sources
oflaw. Although the Statute is directed at the Court, it is the only general text in which
States have acknowledged the authoritative procedures by which they agree to be
legally bound to an international norm. Much recent debate has centered on whether
or not State behaviour in adopting and complying with non-binding instruments
evidences acceptance of new modes of law-making not reflected in the Statute of the
Court.
Of course, efforts to resolve social problems are not invariably in the form of law
in any community. Societies strive to maintain order, prevent and resolve conflicts,
and assure justice in the distribution and use of resources not only through law, but
through other means of action. Issues of justice may be addressed through market
mechanisms and private charity, while conflict resolution can be promoted through
education and information, as well as negotiations outside legal institutions. Main-
tenance of order and societal values can occur through moral sanctions, exclusions,
and granting or withholding of benefits, as well as by use of legal penalties and
incentives. In the international arena, just as at other levels of governance, law is one
form of social control or normative claim, but basic requirements of behaviour also
emerge from morality, courtesy, and social custom reflecting the values of society.
They form part of the expectations of social discourse and compliance with such
norms may be expected and violations sanctioned.
Legal regulation, however, has become perhaps the most prevalent response to
social problems during the last century. Laws reflect the current needs and recognize
the present values of society. Law is often deemed a necessary, if usually insufficient,
basis for ordering behaviour. The language of law, especially written language,
most precisely communicates expectations and produces reliance, despite inevitable
ambiguities and gaps. It exercises a pull toward compliance by its very nature. Its
enhanced value and the more serious consequences of non-conformity lead to the
generally accepted notion that fundamental fairness requires some identification of
3 General principles of law are a third, more rarely used, source of international law, with judicial decisions
and teachings of highly qualified publicists providing evidence of the existence of a norm. See ICJ Statute,
Article 38 and Ch 4 above.
 DINAH SHELTON
what is meant by 'law', some degree of transparency and understanding of the
authoritative means of creating binding norms and the relative importance among
them. A law perceived as legitimate and fair is more likely to be observed. This alone
makes the issue of relative normativity an important topic, but recent evolution in
the international legal system has fostered a burgeoning interest in the issue. Three
developments appear particularly important.
The first development centres on the role of consent in determining legal
obligation. International law has traditionally been defined as a system of equal and
sovereign States whose actions are limited only by rules freely accepted as legally
binding. 4 The emergence of global resource crises such as the widespread depletion
of commercial fish stocks, destruction of the stratospheric ozone layer, and anthro-
pogenic climate change, has produced growing concern about the 'free rider', the
holdout State that benefits from legal regulation accepted by others while enhancing
its own profits through continued utilization of the resource or by on-going pro-
duction and sale of banned substances. The traditional consent-based international
legal regime lacks a legislature to override the will of dissenting States,S but efforts to
affect their behavior are being made, first through the doctrine of peremptory norms
applicable to all States, and, secondly, through expanding the concept of international
law to include 'soft law'. The same approach may be taken with States seeking to
denounce or acting to violate multilateral agreements that reflect widely and deeply
held values, such as human rights or humanitarian law.
In respect to 'soft law', States inside and outside international organizations now
often place normative statements and agreements in non-legally binding or political
instruments such as declarations, resolutions, and programmes of action. These
instruments may make it easier to press dissenting States into conforming behaviour
because international law permits States to use political pressure to induce others to
change their practices, although generally States cannot demand that others conform
to legal norms the latter have not accepted. Non-binding commitments may be
entered into precisely to reflect the will of the international community to resolve a
pressing global problem over the. objections of the one or few States causing the
problem, while avoiding the doctrinal barrier of their lack of consent to be bound by
the norm. 6
The second development that spurs consideration of relative normativity is the
substantial expansion of international law. Until the twentieth century, treaties were
nearly all bilateral and the subject matter of international legal regulation mostly
concerned diplomatic relations, the seas and other international waterways, trade, and
4 See 'Lotus', Judgment No 9, 1927, PCIf, Ser A, No 10 at p 18.
S Thus Salcedo argues that 'In principle ... most rules of international law are only authoritative for those
subjects that have accepted them' (Salcedo, 1997, p 584).
6 The UNGA actions on driftnet fishing were directed at members and non-members of the United
Nations whose fishing fleets decimated dwindling fish resources through use of the driftnet 'walls of death'.
The international community made clear its resolve to outlaw driftnet fishing and enforce the ban, albeit it
was not contained in a legally binding instrument.
INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 149
extradition. Today, the number of international instruments has grown substantially,
multilateral regulatory treaties are common, the topics governed by international
law have proliferated and non-State actors are increasingly part of the system. This
complexity demands consideration and development of means to reconcile conflicts
of norms within a treaty or given subject area, for example, law of the sea, as well
as across competing regimes, such as free trade and environmental protection. It
also requires innovative means of rule-making with respect to non-State actors, who
generally are not parties to treaties7 or involved in the creation of customary inter-
national law. The emergence of codes of conduct and other 'soft law' reflect this
development.
Thirdly, the emergence of international criminal law has led to considering the
nature of international crimes and the relationship of this body of law to doctrines
of obligations jus cogens, discussed below, and obligations erga omnes. The ICJ was
the first to identify the category of obligations erga omnes in dicta in the Barcelona
Traction case. 8 Unlike obligations arising in respect to specific injured States (eg, in the
field of diplomatic protection), obligations erga omnes are owed to the international
community as a whole. The broad nature of the obligation could be based upon the
fact that such obligations generally aim at regulating the internal behaviour of a State,
such as in the field of human rights, and thus there are likely to be no States materially
affected by a breach. The principle of effectiveness thus supports broad standing,
because without it violations could not be challenged. However, the rationale stated
by the ICJ for recognizing this category of obligations appears more substantive: that
'in view of the importance of the rights involved, all States can be held to have a legal
interest in their protection? This statement suggests that obligations erga omnes have
specific and broad procedural consequences because of the substantive importance of
the norms they enunciate. In addition, the fact that all States can complain of a breach
may make it more likely that a complaint will be made following commission of a
wrongful act, suggesting a higher priority accorded these norms even if they are not
considered substantively superior. The ICJ's examples of such obligations included
the outlawing of aggression and genocide and the protection from slavery and racial
discrimination.
Like obligations erga omnes, international crimes are so designated because the acts
they sanction are deemed of such importance to the international community that
individual criminal responsibility should result from their commission. 10 Unlike
7 International organizations sometimes have power to make or become party to international
agreements.
8 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3,
para 33.
9 Idem. See also East Timor (Portugal v Australia), Judgment, ICJ Reports 1995, p 90, para 29; Application
of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judg-
ment, ICJ Reports 1996, p 595, para 3l.
10 The collective nature of the State as subject of international law makes imposition of State criminal
responsibility problematic. Although the International Law Commission included a provision on State crimes
in early versions of its Articles on State Responsibility, the provision was eventually excluded.
 DINAH SHELTON
obligations erga omnes, however, international criminal norms can pose problems of
relative normativity. It has been clear since the Nuremburg Trials that conforming to
or carrying out domestic law is no excuse for breach of international criminal law;
it would seem plausible as well, if unlikely to arise in practice, that a defence would
fail based on carrying out norms of international law, such as those contained in
a bilaterai treaty.11 In this respect, norms of criminal law could be given supremacy
over other international law in practice.
Other aspects of the inter-relationship of these categories of norms and the sources
that create them should be noted. First, neither the designation of international
crimes or obligations erga omnes involves a purported new source of law; crimes are
created and defined through the conclusion of treaties; obligations erga omnes
through treaty and customary irtternational law. Secondly, it appears logical that all
international crimes are obligations erga omnes because the international com-
munity as a whole identifies and may prosecute and punish the commission of such
crimes. The reverse is not the case, however. Not all obligations erga omnes have been
designated as international crimes. Racial discrimination, for example, is cited as an
obligation erga omnes, but is not included among international crimes.
Among those acts designated as international crimes, there appears to be no
hierarchy. The International Criminal Tribunal for the Former Yugoslavia (ICTY) has
rejected the notion of hierarchy, declaring in the Tadii judgment that 'there is in law
no distinction between the seriousness of a crime against humanity and that of a war
crime'. 12
II. THE ASSERTION OF PEREMPTORY NORMS
The theory of jus cogens or peremptory norms 13 posits that there are rules from which
no derogation is permitted and which can be amended only by a new general norm
of international law of the same value. It is a concept without an agreed content and
one that is not widely endorsed by State practice. The only references to peremptory
norms in international texts are found in the Vienna Convention on the Law of
Treaties (VCLT). Article 53 provides that a treaty will be void 'if, at the time of its
conclusion, it conflicts with a peremptory norm of general international law' . Such a
norm is defined by the VCLT as one 'accepted and recognized by the international
community of states as a whole as a norm from which no derogation is permitted
II The treaty itself might be considered void as a violation of peremptory norms if it required or author-
ized the commission of an international crime.
12 Prosecutor v Dusko Tadic, Case No IT-94-1-A, Judgment in Sentencing Appeals, Appeals Chamber
(26 January 2000), para 69. For a criticism of this view and discussion of the conflicting practice of the lCTY,
see Danner, 2000.
13 The terms jus cogens and peremptory norms are used interchangeably. VCLT Article 53 is entitled
a
'treaties conflicting with peremptory norm of general international law (jus cogens)'.
INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY'
and which can be modified only by a subsequent norm having the same character'.
Article 64 adds that the emergence of a new peremptory norm of general inter-
national law will render void any existing treaty in conflict with the norm. No clear
agreement was reached during the VCLT negotiations nor has one emerged since then
about the content of jus cogens.
In national legal systems, it is a general principle oflaw that individual freedom of
contract is limited by the general interest. 14 Agreements that have an illegal objective are
void and those against public policy will not be enforced. IS Private agreements, there-
fore, cannot derogate from public policy of the community. The international com-
munity remains divided over whether the same rules apply to the international legal
system.
A strictly voluntarist view of international law rejects the notion that a State may be
bound to an international legal rule without its consent and thus does not recognize a
collective interest that is capable of overriding the will of an individual member of the
society. States are deemed to construct the corpus of international law either through
agreements or through repeated practice out of a sense of legal obligation (see
Henkin, 1989, p 45; Weil, 1983; Danilenko, 1991, p 42; Lukashuk, 1989). The PCIT,
in one of its first decisions, stated that '[t]he rules of law binding upon States ...
emanate from their own free will as expressed in conventions or by usages generally
accepted as expressing principles of law'. 16 As recently as 1986, the ICT reaffirmed
this approach in respect to the acquisition of weaponry by States. In the Nicaragua
judgment the Court stated:
In international law there are no rules, other than such rules as may be accepted by the State
concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can
be limited, and this principle is valid for all States without exception. 17
Some legal theorists have long objected that the source of international obligation
cannot lie in consent, but must be based on a prior, fundamental norm that imposes
a duty to comply with obligations freely accepted (Kelsen, 1935). Without a source
of this norm outside consent there is an unavoidable circularity of reasoning. A
natural law origin of international obligation was domirIant among scholars until the
nineteenth century, when positivism and an emphasis on the sovereignty of States
emerged in theory and practice. 18
Others object that positivism fails to describe adequately the reality of the current
international order. According to Tomuschat: '[t]he fact is that the cohesive legal
14 In Roman law, the maxim 'ius publicum privatorum pactis mutari non potest' (D.2.14.38) made absolute
the non-derogation from norms which were defined as ius publicum.
IS Article 6 of the Code Napoleon is illustrative: 'On ne peut deroger, par des conventions particulieres,
aux lois qui interessent l' ordre public et les bonnes moeurs'.
16 'Lotus', Judgment No 9,1927, PCIJ, Ser A, No 10 at p 18.
17 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
Merits, Judgment, ICJ Reports 1986, p 14, para 269.
18 See Ch 1.
15 2 DINAH SHELTON
bonds tying States to one another have considerably strengthened since the coming
into force of the United Nations Charter; ... a community model of international
society would seem to come closer to reality than at any time before in history'
(Tomuschat, 1993, pp 210-211). The community consists of States that live within
a legal framework of a few basic rules that nonetheless allow them considerable
freedom of action. Such a framework has become necessary in the light of global
problems threatening human survival in an unprecedented fashion. Recalcitrant
States not only profit by rejecting regulatory regimes adopted by the overwhelming
majority of States, they threaten the effectiveness of such regimes and pose risks to all
humanity.
The extent to which the system has moved and may still move toward the
imposition of global public policy on non-consenting States remains highly debated,
but the need for limits on State freedom of action seems to be increasingly recognized.
International legal instruments and doctrine now often refer to the 'common interest
ofhumanity'19 or 'common concern of mankind' to identify broad concerns that could
form part of international public policy. References also are more frequent to 'the
international community' as an entity or authority of collective action. 20 In addition,
multilateral international agreements increasingly contain provisions that affect non-
party States, either providing incentives to adhere to the norms, or allowing parties to
take coercive measures that in practice require conforming behaviour of States not
adhering to the treaty. The UN Charter itself contains a list of fundamental principks
and in Article 2(6) asserts that these may be imposed on non-parties if necessary to
-ensure international peace and security.
It should be noted that the problem of dissenting States is not as widespread as
might be assumed. First, the obligations deemed basic to the international com-
munity-to refrain from the use of force against another State, to peacefully settle
disputes, and to respect human rights, fundamental freedoms, and self-deter-
mination -are conventional obligations contained in the UN Charter, to which all
member States have consented. Nearly all States also have accepted the humanitarian
conventions on the laws of war which express customary international law. The multi-
lateral regimes for the oceans, outer space, and key components of the environment
(climate change, protection of the ozone layer, and biological diversity) are widely
accepted. Thus in most cases the problem is one of ensuring compliance by States
that have freely consented to the obligations in question and not one of imposing
obligations on dissenting States.
The notion of jus cogens or peremptory norms as a limitation on international
freedom of contract arose in the UN International Law Commission during its work
on the law of treaties. An early ILC rapporteur on the subject proposed that the ILC
draft convention on the law of treaties include a provision voiding treaties contrary
19 See, UNCLOS, Article 137(2); Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, Including the Moon and Other Celestial Bodies (1967), pmbl, para 2_
20 See, eg, Article 53, VCLT; Articles 136-137 UNCLOS.
INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 153
to fundamental principles of internationallaw. 21 This proposal clearly constituted a
challenge to the consensual basis of international law, which viewed States as
having the right inter se to opt out of any norm of general international law. It also
represented 'progressive development' of international law and not a codification of
existing State practice. 22
The concept was controversial from the start and divided the Vienna Conference on
the Law of Treaties. Strong support came from the Soviet bloc and from newly
independent States, who saw it as a means of escaping colonial-era agreements. West-
ern countries were less positive and several expressed opposition to the notion of-
peremptory norms, voting against the provision and withholding ratification of the
treaty because of persisting objections to the concept. To date, the VCLT has garnered
108 ratifications, a little over half the countries of the world.
The drafting of the second treaty on treaties, the 1986 Vienna Convention on the
Law of Treaties between States and International Organizations, indicated continued
controversy over the concept of norms jus cogens. The text proposed by the ILC
included provisions on jus cogens modelled after the 1969 VCLT. The commentary
called the prohibition of the illegal use of armed force embodied in the UN Charter
'the most reliable known example of a peremptory norm' and also claimed that the
notion of peremptory norms, as embodied in VCLT Article 53, 'had been recognized
in public international law before the Convention existed, but that instrument gave
it both a precision and a substance which made the notion one of its essential
provisions'.23 The representative of France disagreed during the plenary drafting
session, expressing his government's opposition to VCLT Article 53 'because it did not
agree with the recognition that article gave to jus cogens' whilst another government
called jus cogens 'still a highly controversial concept which raised the fundamental
question of how to recognize the scope and content of a peremptory norm of general
international law', noting that time had revealed 'a divergence of views since 1969
regarding the nature of norms of jus cogens, which it had not been possible to
define'.24 The text of the Convention was adopted by sixty-seven to one, with twenty-
three States abstaining; it has yet to enter into force. Several States explained their
abstention by referring to the Articles concerning jus cogens, including the dispute
settlement provisions on the topic. 2s Even some of those that favored jus cogens
21 Sir Humphry Waldock proposed the concept and three categories of jus cagens: (1) illegal use of force;
(2) international crimes; and (3) acts or omissions whose suppression is required by international law. The
categories were dropped by the ILC, because each garnered opposition from at least two-thirds of the
Commission. See Kearney and Dalton, 1970, p 535_
22 Robledo, 1982, p 17 called it 'une innovation profonde et un grand pas franchi'.
23 According to the Commentary, 'it is apparent from the draft articles that peremptory norms of
international law apply to international organizations as well as to states, and this is not surprising'.
A/Conf.129/16/Add.l (vol II), pp 39,44.
24 United Nations Conference on the Law of Treaties between States and International Organizations
or Between International Organizations, Vienna, 18 February-21 March 1986, A/Conf.129/16 (vol 1),
17. See also the concerns expressed by Germany, and similar objections raised to Article 64 which concerns
the emergence of a new peremptory norm of general international law (p 18).
25 Ibid, pp 186-194.
154 DINAH SHELTON
expressed uncertainty. The representative of Brazil called jus cogens 'a concept in
evolution'.26
In practice, the concept has been invoked largely outside its original context in the
law of treaties and most frequently in the domestic courts of the United States. At
the International Court of Justice the term appears only in separate or dissenting
opinions;27 States rarely raise the issue28 and when they do the Court seems to take
pains to avoid any pronouncement on it. 29
The ICI's Arrest Warrant judgment of 14 February 2002 indicates the limited role of
jus cogens in practice. Belgium issued an international arrest warrant charging the
Congolese foreign minister with grave breaches of the Geneva Conventions of 1949
and with crimes against humanity. Congo claimed that in doing this Belgium violated
'the rule of customary international law concerning the absolute inviolability
and immunity from criminal process of incumbent foreign ministers'.30 Based on
the pleadings, the Court proceeded from the assumption that Belgium had juris-
diction under international law to issue and circulate the arrest warrant. The
Congo contended that immunity from criminal process is absolute or complete and
thus subject to no exception, even for international crimes. Belgium specifically
argued that immunities cannot apply to war crimes or crimes against humanity, citing
treaties, international and national tribunals, and national legislation. In particular,
it contended that an exception to the immunity rule was accepted in the case of
serious crimes under international law. The Court held that 'certain holders of high-
ranking office' enjoy immunity from civil and criminal process and concluded that
no customary international law restricts diplomatic immunity when accused are
suspected of having committed war crimes or crimes against humanity. The ICJ came
to this conclusion without discussing the possible jus cogens status of the accusations
or the effect of jus cogens norms on sovereign immunity.31
The 1986 Nicaragua decision, most often cited for the Court's approval of jus
cogens, does not in fact recognize either the concept or the content of such norms. 32 In
26 Ibid, P 188.
27 See, eg, Right ofPassage over Indian Territory, Merits, Judgment, ICJ Reports 1960, p 6 at pp 135, 139-140
(Judge ad hoc Renandes dissenting); South West Africa, Second Phase, Judgment, ICJ Reports 1966, p 6 at p 298
(Judge Tanaka dissenting).
28 GabCikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, para 112, noting that
neither side had contented that new peremptory norms of environmental law had emerged.
29 See North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, para 72, declining to enter into or
pronounce upon any issue concerning jus cogens.
30 The Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations were
said to reflect customary international law.
31 Only one of the ten opinions in the Arrest Warrant case mentions the concept of jus cogens norms
despite its obvious relevance to the issues in the case. The dissenting opinion of Judge Al-Khasawneh refers
to jus cogens, linking immunity and impunity. Arrest Warrant of 11 April 2000 (Democratic Republic of
Congo/Belgium), Preliminary Objections and Merits, Judgment, ICJ Reports 2002, p 3, Dissenting Opinion
ofJudge Al-Khasawneh, para 7.
32 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
Merits, Judgment, ICJ Reports 1986, p 14 at para 190, citing the ILC assertion that the norm against aggression
is a peremptory norm as evidence that it is an obligation under customary international law.
INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 155
the subsequent advisory opinion on nuclear weapons, the ICJ has utilized descriptive
phrases that could be taken to refer to peremptory norms, although the language is
unclear. The ICJ called some rules of international humanitarian law so fundamental
to respect for the human person and 'elementary considerations of humanity'
that 'they constitute intransgressible principles of international customary law'. 33
Whether 'intransgressibk' means the rules are peremptory or only that they
are general customary international law legally binding on States not party to the
conventions that contain them is uncertain.
Human rights tribunals similarly avoid pronouncing on jus cogens. In the only
human rights judgment to discuss jus cogens, the European Court of Human Rights
denied that violation of the peremptory norm against torture could act to deprive a
State of sovereign immunity.34 The Court agreed that torture is a peremptory norm,
a fundamental value and an absolute right, but found that it was 'unable to discern'
any basis for overriding State immunity from civil suit where acts of torture are
alleged. In the Inter-American Court, the term appears only in the separate opinions
of Judge Antonio Cancado-Trindade and has never appeared in a judgment of the
court. It has not been mentioned in the UN Tribunal for the Law of the Sea, nor in
the Iran or Iraq Claims Tribunals.
The Inter-American Commission on Human Rights has referred to the concept
several times suggesting it as an additional source of obligation. The Commission has
declared the right to life, for example, to be a norm jus cogens:
derived from a higher order of norms established in ancient times and which cannot be
contravened by the laws of man or nations. The norms of jus cogens have been described by
public law specialists as those which encompass public international order ... accepted ...
as necessary to protect the public interest of the society of nations or to maintain levels of
public morality recognized by them. 35
The International Criminal Tribunal for the Former Yugoslavia (ICTY) , the first
tribunal to discuss jus cogens, supports the existence of such norms and declares the
prohibition of torture as one such norm:
Because of the importance of the values it protects, [the prohibition against torture]
has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher
rank in the international hierarchy than treaty law and even 'ordinary' customary rules.
The most conspicuous consequence of this higher rank is that the principle at issue cannot
be derogated from by states through international treaties or local or special customs
or even general customary rules not endowed with the same normative force .... Clearly,
the jus cogens nature of the prohibition against torture articulates the notion that the
33 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, para 79.
34 Al-Adsaniv United Kingdom, Judgment, 21 November 2001, (2002) 34 EHRR 11.
35 OAS, Inter-American Commission on Human Rights, 81st Sess, Annual Report of the Inter-American
Commission on Human Rights, Victims of the Tugboat '13 de Marzo' v Cuba, Rep No 47/96, OR OEAlSer.UV/
II.95/Doc.7, rev (1997) at 146-147.
 DINAH SHELTON
prohibition has now become one of the most fundamental standards of the international
community. 36
The discussion had no bearing on the guilt or innocence of the person on trial,
nor on the binding nature of the law violated. It was not asserted that any treaty
or local custom was in conflict with the customary and treaty prohibition of torture.
The reference served a rhetorical purpose only. Similarly, an International Labor
Organization report on a 1996 complaint against Myanmar for forced labour referred
to jus cogens although the State had long been a party to ILO Convention (No 29)
concerning Forced or Compulsory Labour. 37 The Report's statement that the practice
of forced labour violates a jus cogens norm appears intended to invite the criminal
prosecution of individuals using forced labour. It labels the systematic practice of
forced labour a (crime against humanity',38 although such a designation is not
required for prosecution and punishment to take place.
The concept of norms jus cogens has been asserted most strongly in the domestic
courts of the United States, initially in an effort to avoid US constitutional doctrine
that considers treaties and custom equivalent to other federal law, allowing the
President and Congress to enact US law inconsistent with international law.
Obligations jus cogens were asserted first in an effort to enforce the 1986 ICT
judgment against the United States in the Nicaragua case. 39 Lawyers argued that the
constitutional precedents do not apply to norms jus cogens, which have a higher
status that bind even the President and Congress. The Court accepted arguendo
the theory, but held that compliance with a decision of the ICT is not a jus cogens
requirement.
Other domestic court cases involving jus cogens fall into one of two categories. First
are cases in which sovereign immunity has acted to shield defendants from civil
lawsuits for damages. The issue has arisen in courts of the United States and the
United Kingdom.40 In both fora lawyers argued that the foreign sovereign immunity
must be interpreted to include an implied exception to sovereign immunity for
violations of jus cogens norms. The argument relies on the idea of implied waiver,
positing that State agreement to elevate a norm to jus cogens status inherently results
in an implied waiver of sovereign immunity. Every court thus far has rejected the
argument and upheld immunityY
In the case of former Chilean leader, Augusto Pinochet Ugarte, the issue of jus
cogens was pressed in response to a claim of immunity from criminal prosecution.
36 Prosecutor v Furundzija, Judgment, Case No IT-95-17/1-T, Trial Chamber (10 December 1998),
para 153.
37 28 June 1930,39 UNTS 55.
38 Report of the Commission of Inquiry on Forced Labour in Myanmar (Burma), ILO Official Bulletin,
1998, Special Supp, vol LXXXI, Ser B, para 538.
39 Committee of us Citizens Living in Nicaragua v Reagan, 859 F.2d 929, 940 (DC Cir 1988).
40 Al-Adsani v Kuwait was litigated in English courts before it was submitted to the European Court
of Human Rights.
41 See, eg, Siderman v The Republic of Argentina, 965 F.2d 699 (9th Cir 1992), cert denied,
113 S Ct 1812 (1993).
INTERNATIONAL LAW AND (RELATIVE NORMATIVITY' 157
Among the many opinions in the case, Lord Millett stated that ([i]nternationallaw
cannot be supposed to have established a crime having the character of a jus cogens
and at the same time to have provided an immunity which is co-extensive with the
obligation it seeks to impose.'42 The judgment ultimately did not rely on jus cogens to
determine the issue, however, because the situation was controlled by the relevant
treaty.
A second category of domestic law cases in which the nature of norms as jus cogens
has been asserted are cases filed pursuant to the US Alien Tort Claim ActY Some of
the plaintiffs assert violations of norms jus cogens, often wrongly claiming that the
landmark decision Filartiga v Pefla-Irala held torture to be a violation of international
jus cogens. In fact, the federal appellate court in that case held that official torture
constitutes a violation of the law of nations and never mentioned the doctrine of jus
cogens norms. 44 No ATCA case has turned on the character of the norm as jus cogens
or (ordinary' custom.
While the practice is too sparse to speak of a trend favouring jus cogeth, recent
developments in Swiss constitutional law should be noted. In response to a popular
initiative to limit the rights of refugees-including rejection of the norm of non-
refoulement-the Conseil federal determined that international peremptory norms
are a substantive limit on the right of initiative to reform the constitution. According
to the federal authorities, peremptory norms are overriding because they emerge from
fundamental principles recognized by the international community as indispensable
to the peaceful co-existence of people. Democratic initiatives within a nation cannot
override these norms.45 This recent practice was codified in the Swiss Constitution
of 18 April 1999. Articles 139(3), 193(4), and 194(2) provide that popular initiatives
to revise the Constitution may not violate peremptory norms of international law
(jus cogens).
The recently completed ILC Articles on State Responsibility and accompanying
Commentary take the position that peremptory norms exist, urging that the concept
has been recognized in international practice and in the jurisprudence of inter-
national and national courts and tribunals. 46 The Commentary notes that the issue of
hierarchy of norms has been much debated, but finds support for jus cogens in the
notion of erga omnes obligations and the inclusion of the concept of peremptory
norms in the Vienna Convention on the Law of Treaties.
The Articles propose a hierarchy of consequences resulting from various breaches
of international law. Article 41 sets forth the particular consequences said to
result from the commission of a serious breach of a peremptory norm. To a large
42 R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte [1999] 2 All ER
97 (HL) at 179.
~3 28 USC §1350 ('The [federal] district courts shall have original jurisdiction of any civil action by an
alien for a tort only, committed in violation of the law of nations or a treaty of the United States'). Judiciary
Act of 1789, ch 20, §9(b) (1789), codified at 28 USC §1350.
44 Filartiga v Peiia-lrala, 630 F.2d 876 (2nd Cir 1980).
45 1991-1 Feuille federale, pp 440-442.
46 Article 40, Commentaries, para 2.
 DINAH SHELTON
extent Article 41 seems to reflect developments in the United Nations, such as the
actions of the Security Council in response to breaches of the UN Charter in Southern
Africa and by IraqY The text imposes positive and negative obligations upon all
States. In respect to the first, '[w]hat is called for in the face of serious breaches is a
joint and coordinated effort by all states to counteract the effect of these breaches'. 48
The Commentary concedes that the proposal 'may reflect the progressive develop-
ment of international law' as it aims to strengthen existing mechanisms of co-
operation. The core requirement, to abstain from recognizing consequences of
the illegal acts, finds more support in State practice, with precedents including
rejection of the unilateral declaration of independence by Rhodesia,49 the annexation
of Kuwait by Iraq,50 and the South African presence in Namibia.5l Article 41
extends the duty to combat and not condone, aid, or recognize certain illegal acts
beyond breaches of the UN Charter and responsive action by the Security CounciL
It remains to be seen whether the Article will increase unilateral determinations
that serious breaches of peremptory norms have occurred, with consequent unilateral
actions.
The primary purpose of asserting that a norm is jus cogens seems to be to override
the will of persistent objectors to a norm of customary international law. 52 If jus cogens
is 'a norm from which no derogation is possible' and its creation by 'the international
community as a whole' means anything less than unanimity, then the problem arises
of imposing the norm on dissenting States. It is not clear that the international
community as a whole is willing to accept the enforcement of widely-accepted norms
against dissenters. In reality, the problem is likely to arise only rarely because those
norms most often identified as jus cogens are clearly accepted as customary inter-
national law and there are no persistent objectors. Even if States violate the norms in
practice, no State claims the right to acquire territory by the illegal use of force, to
commit genocide, or to torture.
The question of dissenters could arise in the future if the number of purported
47 eg, UN SC Res 662 (1990), saying that the annexation of Kuwait had 'no legal validity and is considered
null and void' and calling on the international community not to recognize the annexation and to refrain
from any action or dealing that might be interpreted as a recognition of it. See also Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, para 126, declaring the illegality of
South Africa's presence in Namibia as having erga omnes effects.
48 Article 41, Commentaries, para 3.
49 UN SC Res 216 (1965).
50 UN SC Res 662 (1990).
51 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, para 126.
52 Theoretically, of course, the concept would be applicable if two or more States actually decided to enter
into an agreement to commit genocide or territorial acquisition by aggression and one of them later changed
its mind. According to the VCLT, only a party to an illegal agreement can invoke the illegality to escape its
treaty obligations. The ILC Articles on State Responsibility go further and impose obligations on all States to
repress breaches of jus cogens norms.
INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 159
norms jus cogens expands in an effort to further the common interests of humanity.
The literature is replete with claims that particular international norms constitute
norms jus cogens. Proponents have argued for inclusion of all human rights, all
humanitarian norms (human rights and the laws of war), the duty not to cause
transboundary environmental harm, the duty to assassinate dictators, the right to life
of animals, self-determination, and territorial sovereignty (despite legions of treaties
transferring territory from one State to another).53
The concerns raised are serious ones, for the most part, and the rationale that
emerges from the literature is one of necessity: the international community cannot
afford a consensual regime to address many modern international problems. Thus, jus
cogens is a necessary development in international law, required because the modern
independence of States demands an international ordre public containing rules that
require strict compliance. The ILC Commentary on the Articles on State responsibility
favours this position, asserting that peremptory rules exist to 'prohibit what has come
to be seen as intolerable because of the threat it presents to the survival of states and
their peoples and the most basic human values'. 54 The urgent need to act that is
suggested fundamentally challenges the consensual framework of the international
system by seeking to impose on dissenting States obligations that the 'international
community' deems fundamental. State practice has yet to catch up with this plea of
necessity.
III. HIERARCHY AMONG CONFLICTING NORMS
AND PROCEDURES
The expansion of international law in the past half century potentially raises
numerous problems of balancing different rights and obligations contained within a
single treaty, reconciling norms and procedures in multiple treaties governing the
same topic, and of resolving conflicts across regimes. International texts sometimes
include terms that imply a hierarchy, for example, distinguishing 'fundamental'
from other rights or 'grave' from ordinary breaches of law. Treaties also may contain
'savings clauses' that give express preference to other agreements or rules of cus-
tomary international law. General rules of interpretation help resolve some problems
of conflict but difficult issues remain of determining international priorities among
areas of regulation that have developed independently of each other. 55
53 See, eg, Rayham, 1997 (genocide); Upadhye, 2000 (right to development); Beres, 1992 (jus cogens
obligation to assassinate in specified circumstances).
54 Article 40, Commentaries, para 3.
55 See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p 18, para 38;
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits,
Judgment, ICJ Reports 1986, p 14, para 274.
160 DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 161

A. HIERARCHY WITHIN A SINGLE TREATY of armed conflict not of an international character, all non-combatants must
be treated humanely and without discrimination by race, colour, religion, sex,
The question of hierarchy and the need to balance or resolve conflicts of norms within
birth, wealth, or any similar criteria. Specifically protected are life and freedom
a single treaty is exemplified by human rights agreements. The exercise of various
from torture, humiliating and degrading treatment, hostage-taking, and fundamental
rights may lead to conflicts in practice, for example between the free exercise
due process.
of religion and gender equality. Most international human rights texts establish a
The issue of derogations is linked to that of reservations. Many human rights
hierarchy of human rights norms through the use of non-derogation provisions,
treaties have no provisions on the topic, leaving the question to be regulated by
limitation clauses, and restrictions on reservations.
the provisions of the VCLT. States thus may attach reservations that are compatible
In respect to derogations, the International Covenant on Civil and Political Rights
with the object and purpose of the agreement. The UN Human Rights Committee, in
(ICCPR), Article 4, the American Convention on Human Rights, Article 27, and
its General Comment No 24 on the ICCPR, has expressed doubt that reservations to
the European Convention for the Protection of Human Rights and Fundamental
non-derogable rights are permissible and also has stated that a reservation to the
Freedoms, Article 15, permit States parties to take measures suspending certain rights
Article on derogations would be incompatible with the object and purpose of the
'to the extent strictly required by the exigencies of the situation provided that such
agreement. The Inter-American Court has gone further, stating that 'a reservation
measures are not inconsistent with their other obligations under international law
which was designed to enable a state to suspend any of the non-derogable funda-
and do not involve discrimination solely on the ground of race, color, sex, language,
mental rights must be deemed to be incompatible with the object and purpose of
religion or social origin' (ICCPR, Article 4(1)). The African Charter on Human
the Convention and, consequently, not permitted by it'. 57 Thus, it can be argued that
and Peoples Rights contains no derogation provision and the African Commission
non-derogable rights, being exempt from suspension or reservation, generally are
has interpreted the omission to mean that the Charter as a whole remains in force
given superior status in human rights instruments.
even during periods of a'rmed conflict, suggesting a superior status for the entire
A second category of rights are those that are derogable but guaranteed without
instrument. 56
limitations or clawbacks. These include, in the ICCPR, the right to liberty and security
Non-derogable rights common to the three instruments that discuss the matter are
of person, the right to privacy, family, home and correspondence, rights of the
the right to life, the right not to be subjected to torture or to cruel, inhuman or
child, and the right to participate in elections and public service. The next group
degrading treatment or punishment, the right to be free from slavery, and the right to concerns those rights that contain limitations clauses, using similar language. 58
be free from ex post facto criminal laws, and the right to be free from discriminatory
Limitations clauses allow States parties to restrict the exercise of guaranteed rights,
treatment in respect to derogations. Common to the ICCPR and the Inter-American
but specify the legal grounds and requirements for valid restrictions. The right to
Convention are the non-derogable rights to recognition as a person before the law,
manifest religion of belief, for example 'may be subject only to such limitations as
and the right to freedom of thought, conscience, and religion. The ICCPR alone
are prescribed by law and are necessary to protect public safety, order, health, or
declares non-derogable the right to be free from imprisonment for failure to perform
morals or the fundamental rights and freedoms of others' (ICCPR, Article 18(3)).
a contractual obligation, while the European Convention, with Protocols, considers
Other rights that commonly are accompanied by limitations clauses are the rights
the freedom from double jeopardy and abolition of the death penalty non-derogable,
to freedom of movement, of expression, of association, and of assembly. Finally,
and the American Convention adds protection of the family, rights of the child, the
'clawback' clauses permit national law to specify the scope of the right guaranteed.
right to a nationality, the right to participate in government, and fundamental judicial
In the European system, for example, the right to marry and to found a family
guarantees to the list of non-derogable rights.
subsumes it unreservedly 'to the national laws governing the exercise of this right'
Taking the instruments as a whole, the four non-derogable rights to life and free-
(ECHR, Article 12). The African Charter contains extensive 'clawback' clauses that
dom from torture, slavery, and ex post facto laws provide the starting point for a could undermine the effectiveness of the system, but jurisprudence of the African
hierarchy of positive norms, particularly when added to the provisions of the slavery
conventions, the Genocide Convention, and the Torture Conventions, none of which
contain derogations provisions. International humanitarian instruments add to 57 'Merely to restrict certain aspects of a non-derogable right without depriving the right as a whole of its
this thesis. In addition to the protections applicable during international armed con- basic purpose' is, however, permissible. See Inter-American Court of Human Rights, Advis~ry Opinion C:C-31
83 of 8 September, 1983, Restrictions to the Death Penalty, Articles 4(2) and 4(4) Amencan Convention on
flicts, Common Article 3 to the four 1949 Geneva Conventions demands that in case
Human Rights, Ser A, No 3, para. 61. .
58 The UDHR, Article 29(2) says, 'In the exercise of his rights and freedoms, everyone shall be subject only
56 See Comm 74/92, Commission Nationale des Droits de l'homme et des Libertes v Chad, Ninth Annual to such limitations as are determined by law solely for the purpose of securing due recognition and respect for
Activity Report of the African Commission on Human and Peoples' Rights 1995/96, AGH1207 (XXXII), the rights and freedoms of others and of meeting the just requirements of morality, public order and the
Annex VIII at 12, 16; Murray and Evans, 2001, p 44~. general welfare in a democratic society'.
 DINAH SHELTON
Commission has given the clauses a narrow interpretation and insisted on the
effective enjoyment of the rights prescribed. 59
In respect to economic, social, and cultural rights, global and regional bodies have
through General Comments and other normative statements indicated a hierarchy of
'norms. The Committee on Economic, Social and Cultural Rights, General Comment
No 3 (1990), discusses the nature of State parties' obligations, noting that various
obligations in the ICESCR are obligations of immediate effect. Two described as being
'of particular importance' are the undertaking to guarantee that rights are exercised
'without discrimination' and the other is the obligation 'to take steps'. The Com-
mittee also is of the view 'that a minimum core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of each of the rights is incumbent upon
every State party. Thus, for example, a State party in which any significant number of
individuals is deprived of essential foodstuffs, of essential primary health care, of basic
shelter and housing, or of the most basic forms of education is, prima facie, failing
to discharge its obligations under the Covenant'. In a separate General Comment
(No 12) on the right to adequate food, the Committee established the core minimum
obligation as ensuring freedom from hunger, as distinguished from the more general
right to adequate food. 60
The Inter-American Commission on Human Rights also has adopted a 'basic
needs' approach to economic, social, and cultural rights. According to the Com-
mission, the obligation of member States to observe and defend human rights, set
forth in the American Declaration and the American Convention, obligates them,
'regardless of the level of economic development, to guarantee a minimum threshold
of these rights'. 61 States are obligated to immediately ensure 'a minimum level
of material well-being which is able to guarantee respect of their rights to personal
security, dignity, equality of opportunity and freedom from discrimination'. Finally,
the European Social Charter and the ILO Declaration of Fundamental Rights of
Workers also indicate that certain core rights are deemed of particular significance in
the economic and social field.
In some instances, the reference to a single right in a general treaty or repeated
references in several agreements may be deemed to imply a hierarchy. The United
Nations Charter mentions a single human right, non-discrimination, as it adds the
phrase 'without distinction on the basis of race, sex, language or religion' to every
reference to human rights and fundamental freedoms in the body of the Charter. The
59 eg, the Africa Charter, Article lO: prescribes that 'everyone shall have the right to free association
provided that he abides by the law' but see, eg, Case 101/93, Civil Liberties Organization in re Nigerian Bar
Association v Nigeria (Merits), Eighth Annual Activity Report of the African Commission on Human and Peoples'
Rights, 1994-1995, ACHPRJRPT/8thJX\'III, Rev 1, Annex IX, at 9-10; Murray and Evans, 2001, p 394.
60 The ICESCR itself makes this distinction, speaking in Article 11(1) of the right of everyone to adequate
food and in Article 11(2) of the 'fundamental right of everyone to be free from hunger'.
61 IACHR, The Realization of Economic, Social and Cultural Rights in the Region? Annual Report
of the Inter-American Commission on Human Rights, 1993, OEA/Ser.LN.II.85, doc 9, rev 11 February 1994,
519-534.
INTERNATIONAL LAW AND (RELATIVE NORMATIVITY'
1993 Declaration adopted at the conclusion of the Vienna Conference on Human
Rights. called non-discrimination 'a fundamental rule of international human
rights law'. A possible preferred status for non-discrimination is supported by the
Convention on the Suppression and Punishment of the Crime of Apartheid, the
only international instrument apart from the Convention on the Prevention and
Punishment of the Crime of Genocide to designate the acts covered by the treaty as a
'crime under internationallaw'.62
The identification of certain human rights violations as crimes is also an argument
for hierarchical supremacy. In addition to genocide and apartheid, global and regional
treaties against torture call upon each State party to 'ensure that all acts of torture are
offences under its criminallaw'.63 Similarly, the Geneva Conventions of 1949 and the
Protocols of 1977 require States parties to suppress and punish 'grave breaches' of the
Conventions. In the Inter-American system, forced disappearances can be added to
this category.64 The establishment of ad hoc international tribunals for the former
Yugoslavia and for Rwanda, as well as the conclusion of the Rome Statute for a
permanent International Criminal Court reinforce the understanding that the inter-
national community places the commission of certain acts in a higher category for
which individual criminal responsibility will be imposed.
To a large extent, these provisions of positive law reflect theoretical approaches that
posit maximum claims for equality, personal security, and subsistence rights. While
there is some variety from one region to another in the number of rights deemed
non-derogable, a minimum core does exist and supports the idea of a hierarchy of
rights contained in each legal instrument.
B. HIERARCHY AMONG TREATIES GOVERNING THE SAME TOPIC
The proliferation of international law includes multilateral global and regional
treaties, bilateral treaties, general and regional custom. The co-existence of these
various forms of law results in multiple agreements and sources of law governing
the same topic. Interpretive rules are sometimes suggested to reconcile the conflicts
that emerge (Akehurst, 1974-75). The VCLT provides that generally the treaty la~er
in time should prevail when the two instruments concluded by the same partIes
relate to the 'same subject-matter', subject to the primacy of the UN Charter. Deter-
mining when two or more instruments relate to the same subject matter can be
problematic.
Conflicts among treaties governing the same topic increase as global framework
62 Convention on the Prevention and Punishment of the Crime of Genocide (1948), Article 1;
International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), Article 1.
Earlier, the 1968 Proclamation of Teheran, para 7, called the policy of apartheid a 'crime against hum.anity'.
63 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Pumshment
(1984). Article 4(1); Inter-American Convention to Prevent and Punish Torture. ~cle 6.
64 Inter-American Convention on Forced Disappearance of Persons (1994), ArtIcle 3.
 DINAH SHELTON
instruments are supplemented by regional arrangements or competing regimes
within the same region apply to the same subject matter. 65
The proliferation of treaties governing the same subject matter can raise particular
difficulties for dispute settlement mechanisms. When global treaties comprehensively
regulate a topic, such as the law of the sea, they usually establishing along-term regime
and sometimes provide compulsory dispute settlement mechanisms. The problem of
escaping jurisdiction through recourse to another, regional treaty can arise. Usually
the treaties do not expressly resolve the matter. In the first arbitration under the LOS
Convention, the arbitral tribunal decided that it lacked jurisdiction to adjudicate the
claims because of an intervening regional agreement concluded by the three parties to
the arbitration. 66
C. HIERARCHY AMONG REGIMES
The potential fOJ" regime conflict has led to assertions of the hierarchical supremacy of
one area of regulation over another or one treaty over others. The primacy of the
United Nations Charter itself is set forth in Article 103 which provides that 'in th~
event of a conflict between the obligations of the members of the United Nations
under the present Charter and their obligations under any other international agree-
ment, their obligations under the present Charter shall prevail'.67 This 'supremacy
clause' has been taken to suggest that the aims and purposes of the United Nations-
maintenance of peace and security and promotion and protection of human
rights-constitute an international public order to which other treaty regimes and
the international organizations giving effect to them must conform.
A well-known regime conflict conce~ns the GATT rules on free trade and the trade-
restricting measures mandated or permitted under multilateral environmental
agreements (Pauwelyn, 2001). Trade restrictions are imposed by the Convention
on International Trade in Endangered Species, the Montreal Protocol on Ozone-
Depleting Substances, and the Biosafety Protocol to the Convention on Bio-
logical Diversity (Safrin, 2002). While no dispute settlement body of the WTO has
addressed the issue, various panels have found unilateral trade measures taken for
environmental purposes to be contrary to WTO obligations. 68 The World Summit
65 In Europe, three regional institutions address issues of human rights, sometimes with different
interpretations of the same rights. See Shelton (forthcoming).
66 Convention for the Conservation of Southern Bluefin Tuna (1993); Oxman, 2002.
67 But cf Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Provisional Measures, Order of 13 September 1993, IC] Reports 1993, p 325 at p 440, where Judge Lauter-
pacht suggested in his Separate Opinion that Article 103 and Security Council actions remain subordinate to
jus cogens norms.
68 See eg, Panel Report, BC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/R/USA,
WT/DS48/R/CAN (18 August 1997) and Appellate Body Report, Beef Hormone Case, WTIDS26/AB/R,
WT/DS48/AB/R (16 January 1998); Appellate Body Report, United States-Import Prohibition of Certain
Shrimp and Shrimp Products, WT/DS58/AB/R (12 October 1998); Appellate Body Report, United States-
Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (29 April 1996); GATT Panel Report,
United States-Restriction on the Imports of Tuna, (1991) 30 ILM 1594.
INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY'
on Sustainable Development, held in Johannesburg, South Africa in 2002, seemed to
lean towards favouring the free trade regime over environmental protection;
it suggested that means to balance or reconcile conflicts between the two areas of
international regulation should be decided within the WTO bodies rather than by
the United Nations Environment Program or a general forum like the UN General
Assembly.69
Treaties sometimes contain specific choice of law provisions preserving rights and
obligations under other treaties or regimes. The North-American Free Trade Agree-
ment (NAFTA) contains obligations generally similar and additional to those
imposed by the World Trade Organization 'Uruguay Round'. NAFTA Article 103
reaffirms the parties' 'existing rights and obligations with respect to each other under
the General Agreement on Tariffs and Trade [GATT] and other agreements to which
such Parties are party', but the Article also states that the NAFTA prevails over those
agreements in the event of an inconsistency. The 'Objectives' Chapter (Chapter 1)
similarly provides that in the event of an inconsistency, certain listed international
environmental agreements take precedence over the NAFTA (Article 104), but parties
must choose the actions least inconsistent with NAFTA obligations. The NAFTA also
includes a preference for NAFTA dispute resolution procedures when disputes con-
cern measures adopted or maintained to protect human, animal, or plant life or
health, or the environment, and raise factual issues concerning the environment,
health, safety, or conservation (NAFTA, Article 2005.4).
Other regimes more aggressively assert their primacy. Some human rights bodies
have asserted the priority of human rights guarantees over other international law.
The UN Committee on Economic, Social and Cultural Rights in a 1998 statement on
globalization and economic, social, and cultural rights,7° declared that the realms of
trade, finance, and investment are in no way exempt from human rights obligations.
The Committee's concerns were raised a second time in a statement urging
WTO members to adopt a human rights approach to trade matters, recognizing
the fact that 'promotion and protection of human rights is the first responsibility of
Governments'.71
The Sub-Commission on Promotion and Protection of Human Rights has similarly
affirmed the 'centrality and primacy' of human rights obligations in all areas of
governance and development, including international and regional trade, investment
and financial policies, agreements, and practices. 72 The Commission on Human Rights
has asserted that 'the exercise of the basic rights of the people of debtor countries
to food, housing, clothing, employment, education, health services and a healthy
environment cannot be subordinated to the implementation of structural adjustment
69 See World Summit on Sustainable Development, Plan of Implementation (2002) para 9l.
70 Statement on Globalization (May 1998) (1999) 6 IHRR 1176.
71 Statement to the Third Ministerial Conference of the World Trade Organization (1999), UN Doc
E/C.12/1999/9 of26 November 1999, para 6.
72 Human rights as the primary objective of trade, investment and financial policy, E/CNAISub.2/RES/19981
12,20 August 1998.
166 DINAH SHELTON
policies and economic reforms arising from the debt',73 The UN Special Rapporteurs
on Globalization and Its Impact on the Full Enjoyment of Human Rights forthrightly
assert that 'the primacy of human rights law over all other regimes of international
law is a basic and fundamental principle that should not be departed frum'. 74
The assertion of the primacy of human rights law has not been reflected in State
practice. If eventually accepted, it means that there is no lex specialis for trade or other
fields where States can claim to be free from human rights obligations. It could also
profoundly impact the work of all international organizations, which commonly
claim to be governed only by their constituting legal instruments and the mandate
therejn conferred.
Other treaties contain specific provisions establishing priorities of application or
hierarchies. The UN Convention on the Law of the Sea, for example, Article 311
establishes the agreement of the parties to maintain the basic principle of the com-
mon heritage of mankind 'and that they shall not be party to any agreement in
derogation thereof'. The Convention on Biological Diversity, Article 22, establishes
its relationship with other international conventions in force, providing that rights
and duties under them shall not be affected, 'except where the exercise of those
rights and obligations would cause a serious damage or threat to biological diversity'.
Specific reference is made to implementing the Convention consistent with rights and
obligations of States under the law of the sea.
IV. 'SOFT LAW'
The increasing use of non-binding normative instruments in several fields of inter-
national law is evident (Shelton, 2000). There is no accepted definition of 'soft law'
but it usually refers to any international instrument other than a treaty containing
principles, norms, standards, or other statements of expected behaviour. The term
'soft law' is also sometimes employed to refer to the content of a binding instrument.
Some recent multilateral treaties contain weak commitments that may be considered
'soft law' if the term is applied to the content of the obligation. 75 In fact, the term
'soft law' seems more appropriate for use when referring to the more hortatory or
promotional language of certain treaty provisions than when applied to instruments
concluded in non-binding form, because treaties are legally binding even if specific
commitments are drafted in general or weak terms.
73 Effects of structural adjustment policies and foreign debt on the full enjoyment of all human rights, particu-
larly economic, social and cultural rights, E/CNAlRES/2000/821 , 27 April 2000.
74 Globalization and its impact on the full enjoyment of human rights, preliminary report submitted by
J. Oloka-Onyango and Deepika Udagama, E/CNAISub.2/2000/13, 15 June 2000.
75 eg, ICESCR (1966), Article 2(1): each State party 'undertakes to take steps, individually and through
international assistance and co-operation, especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of the rights recognized ... by all
appropriate means, including particularly the adoption oflegislative measures'.
INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY'
In many cases, hard law instruments can be distinguished from soft law by internal
provisions and final clauses, although the characteristics of each are increasingly
difficult to identify. Recently, supervisory organs have been created to oversee com-
pliance with non-binding norms. The Commission on Sustainable Development, for
example, supervises implementation of Agenda 21, the plan of action adopted in 1992
at the Rio Conference on Environment and Development. In other instances, States
have been asked to submit reports on compliance with declarations and programmes
of action, in a manner that mimics if it does not duplicate the mechanisms utilized in
treaties.
Some scholars have distinguished hard law and soft law by stating that breach
of law gives' rise to legal consequences while breach of a political norm gives rise
to political consequences. Such a distinction is not always easy to make. Testing
normativity based on consequences can be confusing since breaches of law may give
rise to consequences that may be politically motivated. A government that recalls its
ambassador can either be expressing political disapproval of another State's policy on
an issue, Of sanctioning non-compliance with a legal norm. Terminating foreign
assistance also may be characterized either way. Even binding UN Security Council
resolutions based on a threat to the peace do not necessarily depend upon a violation
of international law.
Assertions that States are bound by law require identifying the process by which
legal rules and principles are authoritatively created. If States expect compliance and
in fact comply with rules and principles contained in soft law instruments as well
as they do with norms contained in treaties and custom, then perhaps the concept
of international law, or the list of sources of international law, requires expansion.
Alternatively, it may have to be conceded that legal obligation is not as significant a
factor in State behaviour as some would think. A further possibility is that law
remains important and States choose a soft law form for specific reasons related to
the requirements of the problem being addressed and unrelated to the expectation of
compliance.
In respect to 'relative normativity', scholars debate whether binding instruments
and non-binding ones are strictly alternative or whether they are two ends on a
continuum from legal obligation to complete freedom of action, making some such
instruments more binding than others. If and how the term 'soft law' should be used
depends in large part on whether one adopts the binary or continuum view of inter-
national law. To many, the line between law and not-law may appear blurred. Treaty
mechanisms are including more 'soft' obligations, such as undertakings to endeavour
to strive to cooperate. Non-binding instruments in turn are incorporating super-
visory mechanisms traditionally found in hard law texts. Both types of instrument
may have compliance procedures that range from soft to hard. Some case law refers to
UN resolutions as having 'a certain legal value' but one that 'differs considerably'
from one resolution to another. 76
76 TexacolCalasiaticv Libya, Arbitral Award (1978),17 ILM 28-29.
 168 DINAH SHELTON
Non-binding norms have complex and potentially large impact on the develop-
ment of international law. Customary law, for example, one of the two main sources
of international legal obligation, requires compliance (State practice) not only as a
result of the obligation, but as a constitutive, essential part of the process by which the
law is formed. In recent years, non-binding instruments sometimes have provided the
necessary statement of legal obligation (opinio juris) to evidence the emergent custom
and have assisted to establish the content of the norm. The process of drafting
and voting for non-binding normative instruments also may be considered a form
of State practice.
The reality seems to be a dynamic interplay between soft and hard obligations
similar to that which exists between international and national law. In fact, it is rare
to find soft law standing in isolation; instead, it is used most frequently either as
a precursor to hard law or as a supplement to a hard law instrument. Soft law
instruments often serve to allow treaty parties to authoritatively resolve ambiguities in
a binding text or fill in gaps. This is part of an increasingly complex international
system with variations in forms of instruments, means, and standards of measure-
ment that interact intensely and frequently, with the common purpose of regulating
behaviour within a rule of law framework. The development of complex regimes is
particularly evident in international management of commons areas, such as the high
seas and Antarctica, and in ongoing intergovernmental cooperative arrangements.
For the latter, the memorandum of understanding has become a common form of
undertaking, perhaps 'motivated by the need to circumvent the political constraints,
economic costs, and legal rigidities that often are associated with formal and legally
binding treaties'.77
From the perspective of State practice, it seems clear that resolutions, codes of
conduct, conference declarations, and similar instruments are not law, soft or hard,
albeit they may be related to or lead to law in one manner or another. States and
other actors generally draft and agree to legally non-binding instruments advertently,
knowingly. They make a conscious decision to have a text that is legally binding
or not. In other words, for practitioners, governments, and intergovernmental
organizations, there is not a continuum of instruments from soft to hard, but a binary
system in which an instrument is entered into as law or as not-law. The not-law can
be politically binding, morally binding, and expectations can be extremely strong
of compliance with the norms contained in the instrument, but the difference
between a legally binding instrument and one that is not appears well understood
and acted upon by government negotiators. Although a vast amount of resolutions
and other non-binding texts includes normative declarations, so-called soft law is
not law or a formal source of norms. Such instruments may express trends or a
stage in the formulation of treaty or custom, but law does not have a sliding scale
of bindingness nor does desired law become law by stating its desirability, even
repeatedly. .
77 Johnston, 1997, p xxiv.
INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY'
Despite their limited juridical effect, non-binding instruments have an essential
and growing role in international relations and in the development of international
law. Such instruments may (1) precede and help form international customary
and treaty law; (2) fill in gaps in international legal instruments and further define
eXisting custom; (3) form part of the subsequent State practice that can be utilized
to interpret treaties; and (4) substitute for legal obligation when on-going relations
make formal treaties too costly and time-consuming or otherwise unnecessary.
In the first three categories, non-binding instruments' are often linked in one way
or another to binding ones. The last category is perhaps the most interesting, because
the extent to which members of the international community are willing to accept
informal commitments and non-binding expressions of expected behaviour in their
relations with others may reflect a maturing of the legal system and international
society.
The first category posits that non-binding norms precede binding ones. It is evident
that compliance with non-binding norms can lead to the formation of customary
international law. In recent years, non-binding instruments sometimes have provided
the necessary statement of legal obligation (opinio juris) to precede or accompany
State practice, assisting in establishing the 'content of the norm. 78
The adoption of non-binding normative instruments also can and often does lead
to similar or virtually identical norms being codified in subsequent binding agree-
ments. Indeed, the process of negotiating and drafting non-binding instruments can
greatly facilitate the achievement of the consensus necessary to produce a binding
multilateral agreement. In the human rights field, nearly all recent multilateral con-
ventions have been preceded by adoption of a non-binding declaration. In environ-
mental law, this has been the case recently with the Rotterdam Convention on
Prior Informed Consent (1988).
The second category considers that non-binding instruments act interstitially
to complete or supplement binding agreements. Sometimes this is foreseen in the
agreement itself, eg, the Bonn Convention on Migratory Species of Wild Animals
(1979), the Antarctic Treaty (1959) regime, and agreements of the IAEA concerning
non-proliferation of nuclear weapons?9 In other instances, the non-binding accords
may appear relatively independent and free-standing, but upon examination make
reference to existing treaty obligations, as is the case for example, with the Helsinki
Accords that led to the Organization for Security and Cooperation in Europe (still
lacking a treaty basis) and the Zangger Committee for multilateral weapons control.
In the third category are those non-binding instruments that are adopted by S~ates
parties to (authoritatively interpret' the obligations contained in treaty provisions.
The examples of the Inter-American and Universal Declarations of Human Rights,
as they relate to the OAS and UN Charters, and the more recent ILO Declaration
78 eg, the UN General Assembly ban on Driftnet Fishing in UNGA Res 46/215 (2001).
79 lAEA, The Structure and Content of Agreements Between the Agency and States Required in Connection
with the Treaty on the Non-Proliferation ofNudear Weapons, IAEA Doc INFCIRCI153 (May 1971).
170 DINAH SHELTON INTERNATIONAL LAW AND 'RELATIVE NORMATIVITY' 171

on Fundamental Principles and Rights at Work can be cited here. One could add the
General Comments of various human rights treaty bodies, albeit the interpretation is V. CONCLUSION
accomplished by an independent treaty body conferred by that authority and not by
the States parties directly. The World Bank Operational Standards also seem intended The growing complexity of the international legal system is reflected in the increasing
to give guidance to employees in furthering the mandate of the World Bank. variety of forms of commitment adopted to regulate State and non-State behaviour
Finally, there are some instances of free-standing normative instruments that are in regard to an ever-growing number of transnational problems. The various
neither related to nor intended to develop into binding agreements. The proliferating international actors create and implement a range of international commitments,
Memoranda of Understanding generally can be included here, along with non- some of which are in legal form, others of which are contained in non-binding
binding export control guidelines developed by international weapons suppliers and instruments. The lack of a binding form may reduce the options for enforcement in
the guidelines concerning money laundering adopted by the Financial Action Task the short term (ie, no litigation), but this does not deny that there can exist sincere
Force (FATF). and deeply held expectations of compliance with the norms contained in the non-
States and other actors adopt non-binding normative instruments for a variety binding form.
of reasons. In some cases that is all they can do in the given setting. International There is no 'recipe' for success that will ensure the effective resolution of inter-
organizations in which much of the modern standard-setting takes place generally national problems and conflicts. While there may be particular factors that appear to
do not have the power to adopt binding texts. In addition, non-State actors can influence State and non-State behaviour, determinants of implementation, compli-
sign on, participate, and be targets of regulation, which is much more difficult to ance, and effectiveness vary in a single subject area and for a single legal instrument.
do with treaties. Non-binding instruments are faster to adopt, easier to change, and Ultimately, the issue centres on how to prevent and resolve conflict and promote
more useful for technical matters that may need rapid or repeated revision. international justice. In the end, the international legal system appears to be a
This is particularly important when the subject matter may not be ripe for treaty complex, dynamic web of inter-relationships between hard and soft law, legal norms
action because of scientific uncertainty or lack of political consensus. Finally, given greater or lesser priority, national and international regulation, and various
non-binding texts serve to avoid domestic political battles because they do not institutions that seek to promote the rule of law. In this system, relative normativity
need ratification. seems to be playing increasingly important and varied roles.
In some instances, compliance with non-binding norms and instrum~nts is
extremely good and probably would not have been better if the norms were contained
in a binding text. In fact, in many cases the choice would not have been between
REFERENCES
a binding and a non-binding text, but between a non-binding text and no text at all.
In instances where the choice is presented, there is some evidence that there may be
AKEHURST, M (1975), 'The Hierarchy of the (Irvington-on-Hudson, NY: Transna-
less compliance with non-binding norms, but that the cont~nt of the instrument is
Sources of International Law', 47 BYIL tional).
likely to be more ambitious and far-reaching than would be the product of treaty
273-285. KEARNEY, RD and DALTON, RE (1970), 'The
negotiations, so the overall impact may still be more positive with a non-binding than
BERES, LR (1992), 'Prosecuting Iraqi Crimes Treaty on Treaties', 64 AJIL 495.
a binding instrument.
Against Israel During the Gulf War: KELSEN, H (1935), 'The Pure Theory of Law',
The considerable recourse to and compliance with non-binding norms may
Jerusalem's Rights under International 51 LQR 517.
represent a maturing of the international system. The on-going relationships among
Law', 9 ArizJ Int'l & Comp L 337. KOSKENNIEMI, M (1997), 'Hierarchy in
States and other actors, deepening and changing with globalization, create a climate
that may diminish the felt need to include all expectations between States in formal DANILENKO, G (1991), 'International Jus International Law: A Sketch', 8 EJIL 566.
Cogens: Issues of Law-Making', 2 EJIL 42. LUKASHUK, II (1989), 'The Principle Pacta
legal instruments. Not all arrangements in business, neighbourhoods, or in families
are formalized, but are often governed by informal social norms and voluntary, Dupuy, P-M (1995), Droit international Sunt Servanda and the Nature of Obliga-
non-contractual arrangements. Non-binding norms or informal social norms can public, 3rd edn (Paris: Dalloz). tion under International Law', 83 AJIL 513.
be effective and offer a flexible and efficient way to order responses to common HENKIN, L (1989), 'International Law: MURRAY, R and MALCOLM MD (2001),
problems. They are not law and they do not need to be in order to influence conduct Politics, Values and Functions' (1989-IV) Documents of the African Commission
in the desired manner. 216 Recueil des Cours 9. on Human and Peoples Rights (Oxford:
JOHNSTON, DM (1997), Consent and Hart Publishing).
Commitment in the World Community OXMAN, B (2002), 'Complementary
172 DINAH SHELTON
Agreements and Compulsory Jurisdic-
tion', 95 AJIL 277-312.
PAUWELYN, J (2001), 'The Role of Public
International Law in the WTO: How Far
Can We Go', 95 AJIL 535.
RAEYHAM, P (1997), 'Genocidal Violence
in Burundi: Should International Law
Prohibit Domestic Humanitarian Inter-
vention', 60 Albany L Rev 771.
ROBLEDO, AG (1 982-III), 'Le Ius Cogens
International: Sa Genese, Sa Nature, Ses
Fonctions', 172 Recueil des Cours 17.
SAFRIN, S (2002), 'Treaties in Collision? The
Biosafety Protocol and the World Trade
Organization Agreements', 96 AJIL 606.
SALCEDO, JAC (1997), 'Reflections on the
Hierarchy of Norms in International
Law',8 BJIL 583.
SHELTON, D (forthcoming), 'Boundaries of
Human Rights Jurisdiction in Europe',
DukeJIL.
FURTHER READING
The following works provide useful amplification of the topics surveyed in this chapter:
D'AMATo, A (1990), 'It's a Bird, It's a Plane,
It's Jus Cogens', 9 Conn JIL l.
DANNER, AM (2000), 'Constructing a
Hierarchy of Crimes in International
Criminal Law Sentencing', 87 Va L
Rev415.
DE HOOGH, A (1996), Obligations Erga
Omnes and International Crimes (The
Hague: Kluwer Law International).
liANNlKAINEN, L (1988), Peremptory
Norms (Jus Cogens) in International Law
(ed.) (2000), Commitment and Com-
pliance: The Role ofNon-Binding Norms in
the International Legal System (Oxford:
Oxford University Press).
6
TOMUSCHAT, C (1993), 'Obligations Aris-
ing for States Without or Against Their THE PRACTICAL WORKING
Will' (1993-N) 241 Recueil des Cours
191. OF THE LAW OF TREATIES
UPADHYE, S (2000), 'The International
Watercourse: An Exploitable Resource
for the Developing Nation under Inter- Malgosia Fitzmaurice
national Law?', 8 Cardozo J Int'l & Comp
L61.
WElL, P (1983), 'Towards Relative Norma-
tivity in International Law?', 77 AJIL SUMMARY
413.
WEISS, EB and JACOBSON, H (eds) (1998), This chapter considers key structural questions and fundamental problems relating to
Engaging Countries: Strengthening Com- the law of treaties. The structural matters considered include: the concept of a treaty;
pliance with International Environmental the anatomy of treaties (including the making of treaties; authority to conclude treaties;
Accords (Cambridge, Mass.: MIT Press) expression of consent to be bound; invalidity of treaties (non-absolute grounds for
771. invalidity of treaties, absolute grounds for invalidity of treaties, amendment and modifica-
tion); suspension and termination.
The key issues addressed include the scope of legal obligation (the principle pacta sunt
servanda, treaties, and third States); interpretation and reservation to treaties (including
interpretative declarations); and finally, pr~blems concerning the grounds for termi-
nation (supervening impossibility and material breach). The chapter takes into con-
sideration the theory and practice of the law of treaties, with broad analysis of the case
law of various international courts and tribunals, with special emphasis on jurisprudence
of the International Court of Justice.
(Lakimiesliiton Kustannus: Finnish
Lawyer's Publishing Co).
OXMAN, B (2002), 'Complementary Agree-
ments and Compulsory Jurisdiction',
95 AJIL277.
I.. INTRODUCTION
RAGAZZI, M (1997), The Concept of Inter-
national Obligations Erga Omnes (Oxford:
Treaties are one of the means through which States de(ll with each other and a precise
Clarendon Press).
method of regulating relations between States. Some areas of international law, such as
SZTUCKI, J (1974), Jus Cogens and the Vienna environmental law, are almost exclusively regulated by treaties whilst they are of
Convention on the Law of Treaties
the utmost importance in others, such as international economic relations, and play.
(Vienna: Springer).
a decisive role in the field of human rights. International trade and international
investments as well as international communication are unimaginable without treat-
ies. Thus knowledge· of the law of treaties is essential to an understanding of how
international relations and international law works. That law is codified in the 1969
174 MALGOSIA FITZMAURICE
Vienna Convention on the Law of Treaties (the 'VCLT), the provisions of which will
be presented and analysed in this chapter.
II. BASIC CONCEPTS AND STRUCTURES
A. WHAT IS A TREATY?
VCLT Article 2(2) defines a treaty as '[a]n international agreement concluded
between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever
its particular designation'.
The term 'treaty' is used generically (Aust, 2000, p 140) and a treaty may be
described in a multitude of ways. The International Law Commission (ILC) said:
In addition to a 'treaty', 'convention', and 'protocol,' one not infrequently finds titles such
as 'declaration,' 'charter,' 'covenant,' 'pact,' 'act,' 'statute,' 'agreement,' 'concordat,' whilst
names like 'declaration,' 'agreement', and 'modus vivendi' may well be found given
both to formal and less formal types of agreements. As to the latter, their nomenclature is
almost illimitable, even if some names such as 'agreement,' 'exchange of notes,' 'exchange
of letters, 'memorandum of agreement,' or 'agreed minute', may be more common than
others.... there is no exclusive or systematic use of nomenclature for particular types of
transaction. 1
The Vienna Convention does not require that a treaty be in any particular form
or comprise any particular elements so if there is a dispute concerning the status
of a document-eg, a joint communique-as a treaty, an objective test is used to
determine the question, taking into account its actual terms and the partiCular
circumstances in which it was made. For example, minutes of a meeting can comprise
a treaty. In the Qatar v Bahrain case the ICJ said:
The Court does not find it necessary to consider what might have been the intentions of the
Foreign Minister of Bahrain or, for that matter those of the Foreign Minister of Qatar. The
two ministers signed a text recording commitment accepted by their Governments, some of
which were to be given an immediate application. Having signed such a text, the Foreign
Minister of Bahrain, is not in the position subsequently to say that he intended to subscribe
only to a 'statement recording political understanding', and not to an 'international
agreement'. 2
Since a treaty is a method of creating binding legal obligations, there must be
an intention to create legal relations. The Rapporteur of the ILC stated that the
1 YElle (1966), vol II (part two), p 188.
2 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and
Admissibility, Judgment, leJ Reports 1994, p 112, para 27.
THE PRACTICAL WORKING OF THE LAW OF TREATIES 175
element is implicitly present in the phrase 'governed by international law'.3
There are some international acts that may assume the form of international
agreements but which were never intended to create legal obligations, such as
the 1975 Final Act of the Conference on Security and Cooperation in
Europe. 4
Such acts are sometimes called 'soft law'S and their legal status is not clear. However,
as they are not legally binding, they are not enforceable in· courts. However, they
cannot be ignored since soft law may 'harden' into a treaty6 or become a norm of
international customary law. Some authors see soft law as a more flexible alternative
to treaty-making (Boyle, 2000) though others consider the whole concept mis-
conceived, both in that if it is not binding, it is not law, and that it creates an
expectation of compliance whilst simultaneously undermining the authority of law
(Weil, 1983).
Finally, in the Nuclear Test cases,? the ICJ made it clear that unilateral statements
of States can have binding effect if the intention that they be legally binding is clear;
that there is clear evidence regarding the circumstances in which they are made;
and that the question is approached with due caution. However, it has been argued
that there is little evidence to support the Court's view and, in any case, there was
insufficient evidence of intent on the facts of the case.
B. THE VIENNA CONVENTIONS
The 1969 Vienna Convention on the Law of Treaties was opened for signature on
23 April 1969 and entered into force on 27 January 1980. It was the product of the
International Law CommissionS and the UN Conference on the Law of Treaties that
met at Vienna from 26 March to 24 May 1968, and from 9 April to 22 May 1969. The
subsequent 1986 Vienna Convention between States and International Organizations
or Between Organizations adapts these rules to its subject matter and although not in
force is considered to be applicable as law. Finally, the 1978 Vienna Convention on
Succession of States in Respect of Treaties is in force but not all of its rules are
3 Fourth Report on the Law Treaties, YBILe (1965), vol II, p 12.
4 The Act stated that it was not eligible for registration under UN Charter Article 102 and was generally
understood not to have binding force. The failure to register a treaty under UN Charter Article 102 does not
mean that the instrument in question is not a treaty, whilst the act of registration does not mean that it is. For
example, the 1957 Declaration by Egypt concerning the nationalization of the Suez Canal was registered by
the Egyptian Government but was not a treaty.
S Other examples include the 1972 Stockholm Declaration on Human Environment and the 1992 Rio
Declaration on Environment and Development.
6 eg, the 1988 Baltic Sea Ministerial Declaration and the 1992 Baltic Sea Declaration hardened
into the 1992 Convention on the Protection of the Baltic Sea and the Baltic Sea Area (,The Helsinki
Convention').
7 Nuclear Tests (Australia v France), Judgment, IeJ Reports 1974, p 253, paras 42-43. The need for intention
was reiterated by the Court in Frontier Dispute, Judgment, leJ Reports 1986, p 554, para 39.
8 The Special Rapporteurs of the Commission were Professors Briely and Lauterpacht, Sir G Fitzmaurice
and Sir H Waldock.
176 MALGOSIA FITZMAURICE
considered to represent customary international law. The present chapter is based
mainly on the provisions of the 1969 Vienna Convention.
1. The scope of the Vienna Convention
The Vienna Convention regulates treaties concluded between States (Article 1) and in
written form (Article 2(1)(a)). This does not mean that oral agreements have no
effect under international law or that principles found in the VCLT do not apply to
such agreements, merely that they are not governed by the VCLT itself. Questions of
succession of treaties, State responsibility, and the effect of the outbreak of hostilities
on treaties are also excluded from its scope (Article 73). Furthermore, the Convention
is not retroactive and only applies to treaties concluded after its entry into force
(Article 4). It acts as a residual rule, ie, it is applicable unless a particular treaty
provides otherwise; or unless the parties agree otherwise; or if a different intention is
otherwise established. Although the VCLT does not apply to treaties between States
and international organizations per se, those of its provisions that reflect rules
of international customary law do apply to such treaties (Article 3(b)). Moreover,
the provisions of the VCLT apply as between States parties to the VCLT as regards
treaties to which other forms of subjects of international law (such as international
organizations) are also parties (Article 3(c)).
2. The Vienna Convention and customary law
There are two problems concerning the relationship between the Vienna Convention
and international customary law: (i) which provisions of the Vienna Conven-
tion codified customary law and which constituted progressive development and (ii)
how does customary law relating to treaties operate?
It is difficult, if not impossible, to answer the first of these questions. Certain
provisions of the Convention that represented progressive development at the time
of its signing-such as reservations and modification of treaties-were probably
already within the body of international customary law by the time of its entry into
force (Sinclair, 1984, pp 10-21). In the Gabcikovo-Nagymaros Project case the IC]
identified the rules concerning termination and suspension of treaties as codificatory9
and in the KasikililSedudu Island case said that the rules of interpretation reflected
customary international law. 10
As to the second problem, Articles 3(b), 4, 38, and 43 combine to provide that
when the provisions of the Convention are inapplicable the rules of international
customary law (or in some instances general principles oflaw) with the same legal
content may be applicable. The most significant is Article 4 concerning the non-
retroactive effect of provisions of the VCLT that were not reflective of customary
law.
9 GabCikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, para 46.
10 Kasikili/Sedudu Island (Botswana!Namibia), Judgment, ICJ Reports 1999, p 1045, para 18.
THE PRACTICAL WORKING OF THE LAW OF TREATIES 177
III. THE ANATOMY OF A TREATY
A. THE MAKING OF TREATIES
Treaties are by far the most important tools of regulating international relations.
They may be concluded between States, States and international organizations, and
between international organizations. International organizations, in particular the
United Nations, playa most important role in international law-making as initiators
of treaties and as a source of expertise.
B. AUTHORITY TO CONCLUDE TREATIES
VCLT Articles 7 and 8 concern the making of treaties. A most important issue is
that of full powers,11 the holder of which is authorized to adopt and authenticate the
text of a treaty and to express the consent of the State to be bound by a treaty, although
there are a growing number of treaties, particularly bi-Iateral treaties, which are
concluded in a simplified form that does not require the production of full powers
(for example exchange of notes). The general rule expressed in the VCLT (Article 7
paragraph l(a) and (b)) is that a person is considered as representing a State for
the purpose of expressing the consent of the State to be bound by it if he or she
produces appropriate full powers or it appears from the practice of .the States con-
cerned or from other circumstances that their intention was to consider that
person as representing the State for such purposes and to dispense with full
powers. There is, however, a group of persons who by virtue of their functions
and without having to produce full powers, are considered to have such authority,
these being: heads of State, heads of government, and Ministers for Foreign Affairs;'
heads of diplomatic missions, for the purpose of adoption of the text of a treaty
between the accrediting State and the State to which they are accredited; representa-
tives accredited by States to an international organization or one of its organs, for
the purpose of adopting the text of a treaty in that conference, organization, or organ
(Article 7(2) ).
Full powerS have to be distinguished from c~edentials which are submitted to an
international organization or a government hosting an international conference by a
delegate attending to negotiate a multilateral treaty. Credentials only authorize the
delegate to adopt the text of a treaty and to sign a Final Act. Signing the treaty itself
requires full powers or specific instructions from government. Full powers and
credentials may be combined in one document.
11 Defined in Article 2(l)(c) as a 'Document emanating from the competent authority of a State
designating a person or persons to represent a State for negotiating, adopting or authenticating the text
of a treaty, for expressing consent of the State by a treaty, or for accomplishing any other acts with respect
to a treaty'. See Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v
Nigeria; Equitorial Guinea Intervening), Judgment, IJC Reports 2002.
 MALGOSIA FITZMAURICE
Where an unauthorized person purports to conclude a treaty Article 8 provides
that the action is without legal effect, unless subsequently confirmed by the State. On
the other hand, Article 47 provides that where an authorized representative of a
State expresses consent to be bound although instructed by their State not to do so,
this does not invalidate that consent, unless the limitation on their authority was
notified to other negotiating States beforehand.
C. EXPRESSION OF CONSENT TO BE BOUND
The role of the expression of consent by States to be bound by a treaty is to constitute
a mechanism by which the treaty becomes a juridical act. According to Article II, 'The
consent of a state to be bound by a treaty may be expressed by signature, exchange
of instruments constituting a treaty, ratification, acceptance, approval or accession, or
by any other means if so agreed'. Article 11 lists a number of particular means of
expressing consent to be bound, whilst also allowing parties to adopt any other means
on which they agree. The precise method is, therefore, for the parties to a treaty to
decide amongst themselves.
The legal effect of signature of a treaty depends upon whether or not it is subject
to ratification, acceptance, or approval. If it is, then signature constitutes an
intermediate step, indicating that the delegates have agreed upon the text and are
willing to accept it. Signature under these circumstances does not express the final
consent to be bound and the signing of a treaty does not impose any obligation
on a State to ratify it or even, in the absence of an express term to this effect, to
submit it to the national legislator for consideration. However, the initial signature
also constitutes a juridical act in the sense that, by its signature each State accepts
certain legal consequences, for example under VCLT Articles 18,24(4), and 25. The
intermediate stage between signature and ratification enables States to promulgate
necessary legislation or obtain necessary parliamentary approval. Ratification
conforms to the democratic principle that the government should consult public
opinion either in parliament or elsewhere before finally approving a treaty (Shearer,
1994, p 414). . Commission has pointed out that:
1. Signature
Signature only expresses consent to be bound when it constitutes the final stage
of a treaty-making process. Article 12 lists a variety of possible means to express
consent to be bound by signature, including signature ad referendum. This commonly
indicates either that the signatory State is currently unable to accept the terms
of the treaty, or that the plenipotentiary concerned had no definitive instruc-
tions in the matter. Signature ad referendum becomes a full signature if subse-
quently confirmed by the State concerned. Article 12 also provides that initialling
a treaty constitutes signature when it is established that the negotiating State so
agreed.
THE PRACTICAL WORKING OF THE LAW OF TREATIES 179
2. Ratification
Ratification is understood as a formal, solemn act on the part of a Head of State
through which app.roval is given and a commitment to fulfil its obligations is under-
taken, although the significance of the act at the international level has changed over
time. As Judge Moore said in 1924, the older view that treaties might be regarded
as binding before they had been ratified was now 'obsolete, and lingers only as an
echo from the past'. 12
VCLT Article 2(1) (b) provides that: '''ratification», "acceptance", "approval" and
"accession» mean in each case the international act so named whereby a state estab-
lishes on the international plane its consent to be bound by treaty'. Despite the use of
the word 'means', this does not define ratification, but indicates its effect. Article 14
provides that consent to be bound is expressed by ratification if (a) the treaty expressly
so provides; (b) the negotiating States otherwise agree that ratification is necessary;
(c) the treaty has been signed subject to ratification; or (d) an intention to sign subject
to ratification appears from the full powers or was expressed during negotiations.
Ratification is unconditional and, unless the treaty in question provides otherwise,
is not dependent on the receipt or deposit of instruments of ratification by other
States. Some support for a relatively relaxed approach to the formalities of ratification
can be gleaned from the attitude of the ICJ in the Nicaragua case where Nicaragua's
failure to ratify the Statute of the former Permanent Court of International
Justice and convert 'potential commitment to effective commitment' was seen as
being rectified by its ratification of the ICJ Statute. 13
3. Accession
This means of consent to be bound is regulated by VCLT Article 15 and refers to
the means by which a State eXpresses its consent to become a party to a treaty that it
. was not in a position to sign.14 A State can only accede to a treaty if the treaty so
provides or the parties agree. Treaties setting up regional regimes may often permit
accession by invitation. 15
Can a State accede to a treaty which is not yet in force? The International Law
An examination of the most recent treaty practice shows that in practically all modern
treaties which contain accession clauses the right to accede is made independent of the entry
into force of a treaty, either expressly, by allowing accession to take place before the date
fixed for the entry into force of the treaty, or impliedly, by making the entry into force of the
treaty conditional on the deposit, inter alia, of instruments of Accession. 16
12 Mavrommatis Palestine Concessions, Judgment No 2, 1924, PClf, Ser A, No 2, at p 57.
13 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, p 392.
14 Very rarely it can be the principal means of expressing consent to be bound, as in the often cited yet
isolated example of the 1928 General Act for the Pacific Settlement of International Disputes.
15 eg, 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area.
16 YEILC (1966), vol II (part two), p 199.
180 MALGOSIA FITZMAURICE
4. Acceptance and approval
These are recognized and widely used methods of expressing consent to be bound
and are regulated by VCLT Article 14(2). There are no great differences between
signature subject to acceptance or approval and signature subject to ratification. The
use of these methods of consent to be bound was intended to simplify procedures
by, for example, avoiding constitutional conditions that might require obtaining
Parliamentary authority prior to ratification. The rules applicable to ratification apply
to acceptance and approval (Aust, 2000) and, unless provided otherwise, acceptance
and approval have the same legal effect as ratification. Expressing consent to be
bound by acceptance or approval without prior signature, is analogous to accession.
In many of the more recent conventions concluded under the auspices of the United
Nations, such as the 1997 UN Convention on the Law of the Non-Navigational
Uses of International Watercourses,17 all means of consent to be bound are listed as
available options.
D. INVALIDITY OF TREATIES
The grounds for invalidity of treaties within the VCLT can be divided into two groups:
relative grounds in Articles 46-50 and absolute grounds in Articles 51-53. 18 The main
difference between these grounds is that the relative grounds render a treaty voidable
at the insistence of an affected State whereas the absolute grounds means that the
treaty is rendered void ab, initio and without legal effect. The Vienna Convention does
not differentiate between bilateral and multilateral treaties. However, in the case of
bilateral treaties the legal effect of establishing a relative ground of invalidity has the
same legal effect as establishing absolute invalidity: the treaty falls (Sinclair, 1984).
In the case of multilateral treaties, however, establishing an absolute ground means
that the treaty has no legal force at all whereas establishing a relative ground-
meaning that the consent of a particular State to a multilateral treaty is vitiated-does
not affect the validity of the treaty as a whole as between the other remaining parties
(Article 69(4) ).
Article 46 concerns the failure to comply with internal law regarding competence to
conclude a treaty, and provides that this may only be a ground for invalidating con-
sent to be bound if that failure was 'manifest'. Article 4 7~is similar, concerning cases in
which the representatives purporting to conclude a treaty were acting beyond the
scope of their instructions. 19 Article 48 concerns error as a vitiating ground, and follows
the approach of the ICT in the Temple case. In that case, Thailand argued that the
boundary line indicated on a map annexed to a treaty was in error since it did not
17 (1997) 36 ILM 700.
18 Sinclair divides cases of invalidity into three groups, concerning: the capacity of the parties (Articles 46-
47); the validity of consent to be bound (Articles 48-50); and the lawfulness of the object of the treaty
(Articles 51-53) (Sinclair, 1984, p 160).
19 YBILC (1966), vol II (part two), p 243.
THE PRACTICAL WORKING OF THE LAW OF TREATIES 181
follow the watershed line that was prescribed by the treaty text. The Court rejected
this argument, saying:
It is an established rule oflaw that the plea of error cannot be allowed as a vitiating consent
if the party advancing it contributed by its conduct or error, or could have avoided it, or the
circumstances were such as to put party on notice of a possible error. The Court considers
that the character and qualifications of persons who saw Annex I map on the Siamese side
would alone made it difficult for Thailand to plead error in law ...20
Articles 49 and 50 concern fraud and corruption. There is a paucity of materials
relating to these Articles, though as far as corruption is concerned, the ILC observed
that only an act calculated to exercise a substantial influence on the disposition of a
representative to conclude a treaty could be invoked as a reason to invalidate an
expression of consent that had subsequently been given. 21
Turning from the relative to the absolute grounds for invalidity, Article 51 deals
with the coercion of a representative, Article 52 the coercion of a State, and Article 53
the conflict with norms of jus cogens. In all these cases a treaty is void ab initio, in the
latter case by virtue of its conflicting with international public policy (the con-
sequences of which are addressed in Article 71). Practice in relation to all these
Articles is limited. The classic example relating to Article 51, the coercion of a repre-
sentative, concerns the pressure exerted by Goring and Ribbentrop upon President
Hacha of Czechoslovakia to sign a treaty with Germany establishing a German pro-
tectorate over Bohemia and Moravia in 1939. There is a clear link between Article
52-the coercion of a State-and the prohibition of the use of force under inter-
national law. Iceland advanced a claim of this nature in the 1973 Fisheries Jurisdiction
case and the ICT stated that: 22
There can be little doubt, as implied in the Charter of the United Nations and recognised in
Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary
international law an agreement concluded under the threat or use of force is void .. .'.
E. AMENDMENT AND MODIFICATION
The growth in number of multilateral treaties resulted in the necessity of devising
amendment procedures and, in order to make amendment procedures more flexible,
modification procedures. These are addressed in VCLT Articles 39-41. The ILC
explained that amendment is a formal matter introducing changes into the treaty
text whereas modification is a less formal procedure which effects only certain parties
20 Temple ofPreah Vihear, Merits, Judgment, ICJ Reports 1962, p 6 at p 26.
21 YBILC (1966), vol II (part two), p 244.
22 Fisheries Jurisdiction (United Kingdom v Iceland), Jurisdiction of the Court, Judgment, ICJ Reports 1973,
p 3, para 24. However, on the facts of the case the Court concluded that 'The history of negotiations which
led up to the 1961 Exchange of Notes reveals that these instruments were freely negotiated by the interested
parties on the basis of the perfect equality and freedom of decision on both sides'.
 MALGOSIA FITZMAURICE
to a treaty.23 However,.in practice it is often difficult to distinguish between these two
procedures (Sinclair, 1984, p 107).
Amendments to treaties should be distinguished from the revision of a treaty.
Revision is a more comprehensive process resulting in changes to a treaty. However,
a diplomatic conference is often needed both to revise and to amend a treaty, as,
for example, in the case of the 1992 Convention on the Protection of the Marine
Environment of the Baltic Sea (the '1992 Helsinki Convention').24 Amendments are
subject to approval by the parties to the treaty. However, some treaties-such as the
Helsinki Convention-contain technical annexes which may, if the treaty so provides,
be amended by a simplified system whereby an amendment to an annex is deemed to
have been accepted at the end of a specified period unless in the meanwhile any State
party has submitted a written objection to the Depositary.
F. TERMINATION AND SUSPENSION OF THE
OPERATION OF TREATIES
The general provisions on suspension and termination of treaties are set out in VCLT
Articles 54-59. Termination of a treaty may result from the grounds of termination
that are internal to the treaty as well as from grounds external to the treaty. The
'internal' grounds will be considered here. The 'external grounds', concerning
breach of obligations, will be considered later. AB regards the 'internal' grounds for
termination or suspension, the general rule in Article 54 is that a treaty may be
terminated or a party may withdraw from a treaty in accordance with the provisions
of the treaty itself; or at any time by consent of all parties following consultations.
Article 57 provides that the operation of a treaty with regard to all parties or to a
particular party may be suspended in accordance with the provisions of the treaty in
question.
Some treaties provide that they will remain in force only for a specific period of
time whereas others provide for termination by a resolution of the contracting par-
ties. As to withdrawal from a treaty, some treaties provide for a period of notice,
others do not. For example, the 1992 Helsinki Convention provides that at any time
after the expiry of five years from the date of its entry into force any party may, by
giving written notification to the depositary, withdraw from the Convention. With-
drawal takes effect on the thirtieth day of Tune of the year following the year in which
the depositary was notified of the withdrawal.
VCLT Article 58 provides for suspension of the operation of a multilateral treaty
by agreement between certain parties only. This Article must be read in conjunction
with Article 41 which provides for. the modification of treaty provisions between
certain parties only. Article 59 covers the case of tacit termination of a treaty. There
23 YBILC (1966), vol II (part two), p 232.
24 'A conference for the purpose of a general revision of or an amendment to this Convention may be
convened with the consent of the Contracting Parties or the request of the Commission' (Article 30).
THE PRACTICAL WORKING OF THE LAW OF TREATIES
is a particular problem concerning the relationship between tacit termination in
accordance with Article 59 and Article 30, which concerns the effect of successive
treaties relating to the same subject matter and which relates to cases in which the
parties clearly intended the earlier treaty to be abrogated or its operation wholly
suspended by the conclusion of the subsequent treaty.
IV. THE SCOPE OF LEGAL OBLIGATIONS
A. THE PRINCIPLE PACTA SUNT SERVANDA
The principle pacta sunt servanda is enshrined in Article 26 of the VCLT which
provides that '[e]very treaty in force is binding upon the parties to it and must be
performed by them in good faith'. Good faith is itself a legal principle and forms an
integral part of the pacta sunt servanda principle. 25
The fundamental importance of pacta sunt servanda was confirmed by the lCT in
the 1997 GabCikovo-Nagymaros case, which, generally speaking, advocated its strict
observance. The case concerned the implementation of a 1977 treaty providing for the
construction of a hydro-electric scheme along stretches of the Danube in Hungary
and Slovakia. Hungary argued that the conduct of both parties indicated that they
had repudiated this bilateral treaty which, therefore, had come to an end. The Court,
however, took the view that the reciprocal wrongful conduct of both parties 'did
not bring the Treaty to an end nor justify its termination'.26 The effect of breaching
treaty obligations will be considered later, but at this point it should be noted that,
despite both parties being in fundamental breach of important elements of their
treaty obligations, the Court though the 1977 Treaty 'cannot be treated as voided by
unlawful conduct'. 27
The Court made a direct reference to the principle pacta sunt servanda, saying:
What is required in the present case by the rule pacta sunt servanda, as reflected in Article 26
of Vienna Convention of 1969 on the Law of Treaties, is that the parties find solution within
the co-operative context of the Treaty.28
The Court observed that the two elements in Article 26-the binding force of treaties
and the performance ofthem in good faith-were of equal importance and that good
faith implied that,
in this case, it is the purpose of the Treaty, and the intentions of the parties in concluding it,
which should prevail over its literal application. The principle of good faith obliges parties to
apply it in a reasonable way in such a manner that its purpose can be realised. 29
25 YBILC (1966), vol II (part two), p 211.
26 Gabclkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, para 114.
27 Ibid, para 133. 28 Ibid, para 142. 29 Idem.
 MALGOSIA FITZMAURICE
These are far-reaching statements and, whilst they may have been particularly suited
to the issues in the GabCikovo-Nagymaros case itself, it is still impossible to determine
the extent to which they bear upon the application of the principle pacta sunt servanda
in the law of treaties in general.
B. TREATIES AND THIRD STATES
The issue of treaties and non-State parties-third States-are addressed in VCLT
Articles 34-38. The fundamental rule concerning the relationship between treaties
and third States is expressed by the maxim pacta tertiis nee noeent nee prosunt,
enshrined in Article 34. The Convention then deals with an obligation (Article 35)
and a right (Article 36-often referred to as stipulations in favorem tertii) arising from
a treaty for a third State. A;:; to the obligation, the requirements are so strict that, when
fulfilled, they in fact amount to the existence of a collateral agreement between the
parties to the treaty and the third State and it is this collateral agreement, rather than
the original treaty, which is the legal basis for the third State's obligation.
There are procedural differences in the establishment of an obligation and of a
right. The third State must accept an obligation in writing, whereas in a case of the
right, the assent of the third State(s) is presumed, unless the treaty provides otherwise
or there are indications to the contrary. Arty obligation arising for a third State can
be revoked or modified only with the consent of the parties to the treaty and of the
third State, unless it is established that they agreed otherwise. Arty right arising for a
third State can be revoked or modified only by the parties if it is established that the
right was intended to be revocable or subject to modification without the consent
of the third State. Caution is usually recommended when considering whether a treaty
has given rise to stipulations in favorem tertii. As the PCl} said: 30
It cannot be lightly presumed that stipulations favourable to a third State have been adopted
with the object of creating an actual right in its favour. There is however nothing to prevent
the will of sovereign States from having this object and this effect. The question of the
existence of a right acquired under an instrument drawn between other States is therefore
one to be decided in each particular case: it must be ascertained whether the States which
have stipulated in favour of the third State meant to create for that State an actual right
which the latter has accepted as such.
Nothing in the VCLT prevents a rule set out in a treaty from becoming binding
upon third States as a customary rule of international law if recognized as such
(Article 37).
However, the VCLT does not deal specifically with the question of whether the
objective regimes created by treaties are binding only on States parties to those instru-
ments or whether they are valid as against the entire international community-are
valid erga omnes. Examples of such treaties would include those providing for the
30 Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, PClJ, Ser AlB, No '46, P 96 at
pp 147-148,
THE PRACTICAL WORKING OF THE LAW OF TREATIES
neutrality or demilitarization of a certain territory or area, or establishing freedom of
navigation in international waterways such as the Suez Canal, Kiel Canal, and the
Turkish Straits. 31
v. GENERAL PRINCIPLES OF INTERPRETATION
A. GENERAL ISSUES
'There is no part of the law of treaties which the text writer approaches with more
trepidation than the question of interpretation' (McNair, 1961). The complex issue
of treaty interpretation will be discussed in the light of the work of the ILC during
its codification of the law of treaties, the principles of interpretation included
in the Vienna Convention, and the jurisprudence of the international and national
courts and tribunals, with special regard to the case law of the ICJ. The purpose of
interpretation is to establish the meaning of the text that the parties intended
it to have 'in relation to circumstances with reference to which the question of
interpretation has arisen' (Oppenheim's International Law, 1996).
Basing himself on the jurisprudence of the World Court,32 the ILC's Rapporteur,
Fitzmaurice (Fitzmaurice, 1951) drew up the following comprehensive set of
principles of interpretation:
Principle I: actuality of textuality-that treaties are to be interpreted as they stand,
on the basis of their actual texts.
Principle II: the natural and ordinary meaning-that, subject to principle of
contemporaneity (where applicable), particular words and phrases are to be given
their normal, natural, and unstrained meaning in the context in which they
occur. This principle can only be displaced by direct evidence that the terms used
are to be understood in manner different to their natural and ordinary meaning,
or if such an interpretation would lead to an unreasonable or absurd result.
Principle III: integration-that treaties are to be interpreted as a whole. This
principle is of fundamental importance and means that individual parts, chapters
or sections of a treaty are not to be interpreted out of their overall context.
The remaining principles take effect subject to the three principles outlined above.
There are:
31 The ILC took the view that Article 36(1) provided sufficient basis for rights to be accorded to all States
and Article 38 a sufficient basis for the establishment of treaty rights and obligations erga omnes. For criticism
see Chinkin, 1993.
32 YElLC (1966), vol II (part two), p 220,
186 MALGOSIA FITZMAURICE
Principle IV: effectiveness (ut magis valeat quam pereat)-that treaties are to be
interpreted with reference to their declared or apparent objects and purposes; and
particular provisions are to be interpreted so as to give them the fullest effect
consistent with the normal sense of the words and with the text as a whole in such a
way that a reason and meaning can be attributed to every part of the text.
Principle V: subsequent practice- that recourse may be had to subsequent practice
of parties relating to the treaty.
Principle VI: contemporaneity-that the terms of a treaty must be interpreted in the
light oflinguistic usage current at the time when the treaty was concluded.
In general, there are three main schools of interpretation: the subjective (the 'inten-
tion' of parties) approach; the objective (the 'textual') approach, and the teleological
(or 'object and purpose') approach. These schools of interpretation are not mutually
exclusive (Sinclair, 1984) and the VCLT draws on all three. It is the reconciliation
of the objective and the subjective approaches that is the most difficult, contro-
versial and, some would say, impossible, task (Koskenniemi, 1989). For the ILC, the
starting point was the text rather than the intention of the parties,33 since it presumed
that the text represented a real expression of what the parties did in fact intend. It
also appears that the ICT's preferred method of interpretation is reliance on the text
of a treaty.
B. PRACTICE
VCLT Article 31 (1) provides:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
The ICJ has acknowledged this to constitute international customary law. 34 The
underlying principle is that a treaty will be interpreted in good faith. The 'rule' (in
the singular) of interpretation is a procedure consisting of three elements: the text, the
context, and the object and purpose. The context of a treaty is set out in some detail in
Article 31(2) and embraces any instrument of relevance to the conclusion of a treaty,
as well as a treaty's preamble and annexes. There is no hierarchy between the various
elements of Article 31; rather, they reflect a logical progression (Aust, 2000, p 187).
The Court has consistently adhered to the textual interpretation as being the most
important. In the Libya/Chad case, the Court stated that:
33 Idem.
34 Territorial Dispute (Libyan Arab Jamahiririya/Chad), Judgment, ICJ Reports 1994, p 6, para 41; Oil
Platforms (Islamic Republic of Iran v United States ofAmerica), Preliminary Objections, Judgement, ICJ Reports
1996, p 803, para 23; Kasikili/Sedudu Island (BotswanaiNamibia), Judgment, ICJ Reports 1999, p 1045, para 18.
THE PRACTICAL WORKING OF THE LAW OF TREATIES
Interpretation must be based above all upon the text of a treaty. As a supplementary measure
recourse may be had to means of interpretation such as the preparatory work of the treaty.35
Article 31 reflects the principle that a treaty has to be interpreted in good faith that
is the embodiment of the principle pacta sunt servanda. The determination of that
ordinary meaning of term is undertaken in the context of a treaty and in the light of
its object and purpose. A good example is the Advisory Opinion On the Interpretation
of the Convention of 1919 Concerning Employment of Women During the Night. Article
3 of that Convention ('women without distinction of age shall not be employed
during the night in any public or private industrial undertaking, or in any branch
thereof, other than an undertaking in which members of the same family are
employed') left unclear its application to certain categorles of women other than
manual workers. The Court said: 36
The wording of Article 3, considered by itself, gives rise to no difficulty; it is general in its
terms and free from ambiguity or obscurity. It prohibits the employment during the night in
industrial establishments of women without distinction of age. Taken by itself, it necessarily
applies to the categories of women contemplated by the question submitted to the Court. If,
therefore, Article 3 ... is to be interpreted in such a way as not to apply to women holding
posts of supervision and management and not ordinarily engaged in manual work,
it is necessary to find some valid ground for interpreting the provision otherwise than in
accordance with the natural sense of words. The terms of Article 3 ... are in no respect
inconsistent either with the title, or with the Preamble, or with any other provision of
the Convention. The title refers to 'employment of women during the night'. The Preamble
speaks of 'women's employment during the night'. Article 1 gives a definition of 'an
industrial undertaking.' Article 2 states what is meant by the term 'night.' These provisions,
therefore, do not affect the scope of Article 3, which provides that 'women shall not be
employed during the night either in any public or private industrial undertaking, or in any
branch thereof'.
This might be compared with the views of the Judge Anzilloti who argued that 'If
article 3, according to the natural meaning of its terms, were really perfectly clear, it
would be hardly admissible to endeavour to find an interpretation other than that
which flows from the natural meaning of its terms'.37 He thought that only the inten-
tion of the parties should have been used to determine the correct interpretation.
Another problem concerns what is to count as subsequent practice for the purposes
of interpretation, the use of which is sanctioned as forming a part of the context of the
treaty by Article 31 (3). In the Kasikili/Sedudu Island case the Court adhered to the ILC's
view that the subsequent practice of parties to a treaty constitutes an element to be
taken into account when determining its meaning,38 but it took a narrow approach to
35 Territorial Dispute, idem. The use of supplementary material is considered below.
36 Interpretation of the Convention of 1919 Concerning Employment of Women During the Night, Advisory
Opinion, 1932, PCIJ, Ser NB, No 50, P 365, P 373.
37 Dissenting Opinion of Anzilloti, ibid, p 383.
38 Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Reports 1999, p 1045, para 49.
188 MALGOSIA FITZMAURICE
what comprises subsequent practice and did not take account of unilateral acts of the
previous authorities of Botswana on the grounds that these were for internal purposes
only and unknown to the Namibian authorities. The Court also considered the
relevance of an alleged 'subsequent agreement' between the previous authorities in
Namibia and Botswana as only amounting to 'collaboration' over matters concerning
the border and not having any effect on the interpretation of the treaty in question. 39
However, the Court was prepared to accord such material some role, noting them as
facts which supported the interpretation of the 1890 Treaty in accordance w~th the
ordinary meaning of its terms. 40 This is a usage not explicitly foreseen by the VCLT.
C. TRAVAUX PREPARATOIRES
VCLT Article 32 makes it clear that supplementary means of interpretation-
including travaux prepara tio res, preparatory work - may be used either to confirm the
meaning of the treaty or as an aid to interpretation where, following the application
of Article 31, the meaning is ambiguous or obscure or leads to a result which is
manifestly absurd or unreasonable. Both the Employment of Women During the Night
Advisory Opinion and the KasikililSedudu case, considered above, illustrate the use of
supplementary means to confirm an interpretation arrived at on the basis of Article
31. It is the use of preparatory work as a supplementary means of interpretation that
gives rise to most difficulties, as is illustrated by the jurisdictional phases of the Qatar
v Bahrain case.
The problem in this case centred on whether Qatar and Bahrain had ever entered
into an agreement that would permit one of them to bring their case before the ICJ
without the express approval of the other. The ICJ first decided that the fragmentary
nature of the preparatory work meant that they could only be used with caution but
noted that: 41
. . . the initial ... draft expressly authorised a seisin by one or other of the parties and that
that formulation was not accepted. But the text finally adopted did not provide that the
seisin of the Court could only be brought about by the two parties acting in concert,
whether jointly or separately. The Court is unable to see why abandonment of a form
of words corresponding to the interpretation given by Qatar . . . should imply that they
must be interpreted in accordance with Bahrain's thesis. As a result, it does not consider
the travaux preparatoires, in the form in which they have been submitted to it-ie, limited
to the various drafts ... -can provide it with conclusive supplementary elements for the
interpretation of the text adopted; whatever may have been the motives of each of the
parties, the Court can only confine itself to the actual terms of the Minutes as the expression
of their common intention, and to the interpretation of them which it has already given.
39 See generally ibid, paras 52-79.
40 Ibid, para 80.
41 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and
Admissibility, Judgment, ICJ Reports 1995, p 6, para 41.
THE PRACTICAL WORKING OF THE LAW OF TREATIES
The Court concluded that a unilateral application was legitimate. Judge Schwebel
criticized this, arguing that the Court's interpretation did not reflect· the common
intention of the parties. He argued that the Court's view that the preparatory work
did not provide conclusive supplementary elements was unconvincing, observing
that: 42
since deletion of the specification, 'either of the two parties may submit the matter to the
International Court of Justice~ in favour of the adopted provision 'the two parties may
submit the matter .. .' surely manifested Bahrain's intention that 'either of the two parties'
may not submit the matter, the Court's inability to see so plain a point suggests to me an
unwillingness to do so.
He considered that 'the requisite common, ascertainable intention of the parties to
authorise unilateral reference to the Court is absent. Its absence is-or should be have
been-determinative'43 and concluded that
What the text and context of the Doha Minutes leaves unclear is, however, crystal clear
when those Minutes are analysed with the assistance of the travaux preparatoires ... the
preparatory work of itself is not ambiguous; on the contrary, a reasonable evaluation of it
sustains only the position of Bahrain. 44
D. THE OBJECT AND PURPOSE OF A TREATY
Article 31 of the Vienna Convention stipulates that a treaty should be interpreted 'in
the light of its object and purpose' but this is a vague and ill-defined term, making it
an unreliable tool for interpretation. Indeed, the ILC itself voiced certain doubts as to
the usefulness of this criterion, particularly as regards reservations45 (a topic considered
below). A further problem concerns the relationship between the 'object and purpose'
of a treaty and the principle of effectiveness which is considered in the following
section .
E. THE PRINCIPLE OF EFFECTIVENESS
The principle of effectiveness, enshrined in the maxim magis valeat quam pereat, was
acknowledged by the ILC, which observed that '[w]hen a treaty is open to two inter-
pretations one of which does and the other does not enable the treaty to have
appropriate effects, good faith and the objects and purposes of the treaty demand that
the former interpretation should be adopted'.46
Although the principle of effectiveness can operate as an element within the 'object
42 Ibid, Dissenting Opinion ofJudge Schwebel, p 27 at p 36.
43 Ibid, at p 37.
44 Ibid, at pp 38-39. For similar analyses see the Dissenting Opinions ofJudges Shahabuddeen, ibid, p 51
and Koroma, ibid, p 67. .
45 First Report on the Law of Treaties, YBILC (1962), vol II, pp 65-66.
46 YBILC (1966), vol II (part two), p 219.
190 MALGOSIA FITZMAURICE
and purposes' test, it is not limited to this role and, as Thirlway notes, the IC] has used
it to ascertain the intention underlying the treaty and as a starting point for a broader
discussion. It also operates in the broader context of giving effect to the terms of a
text.
The principle of effectiveness has two meanings. The first is that all provisions
of the treaty or other instrument must be supposed to have been intended to
have significance and to be necessary to express the intended meaning. Thus an
interpretation that renders a text ineffective and meaningless is incorrect. The second
operates as an aspect of the 'object and purposes' test, and it means that the instru-
ment as a whole and each of its provisions must be taken to have been intended
to achieve some end, and that an interpretation that would make the text ineffective to
achieve that object is also incorrect. Thirlway observes that this latter approach
is similar to the 'object and purpose' criterion, and 'has therefore, like this criterion, to
be employed with discretion' (Thirlway, 1992).
F. PLURILINGUAL TREATIES
A further problem concerns the interpretation of treaties drawn up in more than one
language. The ILC observed that: 47
... the majority of more formal treaties contain an express provision determining the status
of the different language versions. If there is no such provision, it seems generally accepted
that each of the versions in which the text of the treaty was 'drawn' up is to be considered
authentic, and therefore authoritative for the purpose of interpretation. Few plurilingual
treaties containing more than one or two articles are without some discrepancy between the
texts ... the plurality of texts may be a serious additional source of ambiguity or obscurity
in the terms of the treaty. On the other hand, when meaning of terms is ambiguous or
obscure in one language, but it is clear and convincing as to the intentions of the parties in
another, the plurilingual character of the treaty facilitates interpretations of the text the
meaning of which is doubtful.
In the Mavrommatis Palestine Concession case, the IC] had to interpret the phrases
'public control' and 'contrale public' in the French and English authentic languages
texts of the Palestine Mandate. The Court said:
. . . Where two versions possessing equal authority exist one of which appears to have a
wider bearing than the other, it is bound to adopt the more limited interpretation which can
be made to harmonise with both versions and which, as far as it goes, is doubtless in
accordance with the common intention of the parties. 48
The matter is covered by VCLT Article 33 which reflects these general approaches to
the problem.
47 YEILC (1966), vol II (part two), pp 224-225.
48 Mavrommatis Palestine Concessions, Judgment No 2,1924, PClf, Ser A, No 2, P 19.
THE PRACTICAL WORKING OF THE LAW OF TREATIES 191
VI. RESERVATIONS TO TREATIES
A. THE GENOCIDE CONVENTION CASE
Reservations to multilateral treaties are one of the most problematic issues in
the law of treaties. According to VCLT Article 2( d) 'Reservation means a unilateral
statement, however phrased or named, made by a State, when signing, ratifying,
accepting, approving or acceding to a treaty, where, it purports to exclude or
to modify the legal effect of certain provisions of the treaty in their application to
that State'.
In its role as a treaty depository, the League of Nations had only allowed reserva-
tions that were accepted by all contracting parties to a treaty, otherwise it treated
both the reservations and the signatures or ratifications to which they were attached
as null and void. The Pan-American Union adopted a different, more flexible
approach, the gist of which was that a treaty was considered to be in force as between a
reserving State and States that accepted the reservation but not in force as between
a reserving State and States that did not accepted the reservation.
The modern approach is derived from the 1951 Advisory Opinion of the IC] in
the Reservation to the Convention on Genocide case, the principal features of which
were that: 49
A State which has made and maintained a reservation which has been objected to by
one or more of the parties to the Convention but not by others, can be regarded as
being a party to the Convention if the reservation is compatible with the object and
purpose of the Convention; otherwise, that State cannot be regarded as being a party to
the Convention.
The Court added that: 50
If a party to the Convention objects to a reservation which it considers to be incompatible
with the object and purpose of the Convention, it can in fact consider that the reserving
State is not a party to the Convention ... if on the other hand, a party accepts the reservation
as being compatible with the object and purpose of the Convention, it can in fact consider
that the reserving State is a party to the Convention.
It has to be said that although the Court's approach was subsequently reflected in the
VCLT, the Court had made it clear that it was expressing its views on the operation
of reservations only in relation to the Genocide Convention, noting that:
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'etre of the convention. Consequently in a convention of
49 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, ICJ Reports 1951, p 15 at p 29.
50 Idem.
19 2 MALGOSIA FITZMAURICE
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. 51
And that:
The object and purpose of the Genocide Convention imply that it was the intention of the
General Assembly and of States which adopted it that as many States as possible should
participate. The complete exclusion from the Convention of one or more States would not
only restrict the scope of its application, but would detract from the authority of the moral
and humanitarian principles which are its basis. 52
It was for these reasons that the Court departed from the more rigid system operated
by the League of Nations, which some judges had considered to reflect international
customary law. 53 However, it was the General Assembly itself which requested that
the UN Secretary-General adopt this new approach when acting in his capacity as
depositary of multi-lateral treaties. 54
B. THE REGIME OF THE 1969 VIENNA CONVENTION
The Court's approach is reflected in VCLT Article 19 and so attempts to strike a
balance between ensuring the integrity of a treaty whilst enco.uraging universal par-
ticipation. Article 20(4) tips the balance towards widening participation by providing
that even if a State party objects to a reservation attached to the signature or ratifica-
tion of another State, the treaty will nevertheless enter into force and the reservation
be effective between them unless (a contrary intention is definitely expressed by an
objecting State'. Moreover, the idea that the approach in the Genocide Convention case
should be limited to those treaties where there was no particular advantage or dis-
advantage for an individual State was abandoned and Article 20(5) provides that, a
reservation is considered to have been accepted by a State if it has not objected to it
within twelve months of being notified of it, unless the reservation concerns the
constituent instrument of an international organization, or the treaty in question
provides otherwise.
Again following the Genocide Convention case, VCLT Article 19(c) provides that
a State may not submit a reservation which is (incompatible with the object and
purpose of the treaty'. This criterion is vague and difficult to grasp. However,
reservations of general character are considered to be incompatible with the 'object
and purpose' of a treaty.55 Whilst reservations to treaty provisions which codify
51 Ibid, P 23.
52 Ibid, P 24.
53 See Joint Dissenting Opinion ofJudges Guerrero, Sir Arnold McNair, Read, and Hsu Mo, ibid, P 3l.
54 GA Res 598 (VI), 12 January 1952.
55 See, before the European Court of Human Rights, Belilos v Switzerland, Judgment of 29 April 1988,
Ser A, No 132, para 55.
THE PRACTICAL WORKING OF THE LAW OF TREATIES 193
international customary law are possible,56 there is no doubt that reservations to
provisions reflecting norms of jus cogens are not.
How are those reservations which are incompatible with the object and purpose of
a treaty distinguished from those which are not? There are two schools of thought: the
permissibility school and the opposability school. The permissibility school is based
on a two-stage assessment procedure: first, the reservation must be objectively
assessed for compatibility with the object and purpose of the treaty. If it is not
compatible, acceptance by other States cannot validate it.57 If, however, the reservation
is compatible with the object and purpose of the treaty, the parties may decide
whether to accept or object to the reservation on whatever other grounds they
wish, such as for political reasons. The opposability school bases the validity of the
reservation entirely upon whether it has been accepted by other parties and sees
the compatibility test as merely a guiding principle for the parties to contemplate when
considering whether to accept or object to the reservation. 58
Some treaties attempt to deal with this question on a treaty-by-treaty basis. For
example, the 1965 International Convention on Elimination of All Forms of Racial
Discrimination, Article 20 uses a mathematical test, providing that a reservation is
incompatible with the 'object and purpose' of the treaty if at least two-thirds of the
contracting parties object to it.
The Restrictions to the Death Penalty Advisory Opinion concerned a reservation
made by Guatemala to the Prohibition of the infliction of capital punishment 'for
political offenses or related common crimes' found in Article 4(4) of the 1969
American Convention on Human Rights, which is a non-derogable provision. Faced
with the question whether a reservation was permissible in the light of the object
and purpose of the Convention, the Inter-American Court of Human Rights
said that: 59
... a reservation which was designed to enable a State to suspend any of the non-derogable
fundamental rights must be deemed incompatible with the object and purpose. of the
Convention and, consequently, not permitted by it. The situation would be different if
the reservation sought merely to restrict certain aspects of a non-derogable right without
depriving the right as a whole of its basic purpose. Since the reservation ... does not appear
to be of a type that is designed to deny the right to life as such, the Court concludes that to
56 See, eg, North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, paras 29 and 72 which seem to
accept the possibility. But cjUN HRC General Comment No 24(52) on issues relating to Reservations made
upon ratification or accession to the Covenant or Optional Protocols thereto, or in relation to declarations
under Article 41 of the Covenant, 11 November 1994 (for text see (1995) 15 HRLJ 262) which argues that
reservations to provisions in human rights treaties which represent customary international law are not
permissible. This is considered further below.
57 UN Doc NCNA/470 (30 May 1995), (First Report on Reservations), p 49, para 102. See also YEILC
[1995], vol two, part two, P 101.
58 Idem.
59 Restrictions to the Death Penalty, Advisory Opinion, Inter-American Court of Human Rights, AO
OC-3/83,8 September 1983, (1984) 23 ILM 320 at p 341.
194 MALGOSIA FITZMAURICE
that extent it can be considered, in principle, as being not incompatible with the object and
purpose of the Convention.
One unresolved question concerns the legal effect of having attached an impermis-
sible reservation to a signature or ratification. There are two possible solutions: the
first is that unless it is withdrawn, a State making an impermissible reservation will
not be considered a party to a treaty. The second is that the impermissible reservation
may be severed and the State be bound by the treaty in its entirety. Although, as will be
seen below, there is some practice supporting the severability approach in the human
rights sphere, it is difficult to see how the reservation can legitimately be severed if
the consent to be bound is made expressly subject to such a reservation, albeit an
impermissible one.
C. THE PROBLEM OF RESERVATIONS TO HUMAN RIGHTS TREATIES
The system of reservations found in the Vienna Convention was supposed to be
comprehensive but it became clear in the 1980s that the system was difficult to apply
particularly as regards the compatibility of reservations to human rights treaties with
their 'object and purpose' and in 1993 the topic of the Law and Practice Relating to
Reservations to Treaties was added to the ILC's agenda. Human rights treaties are not
contractual in nature and do not create rights and obligations between States on the
traditional basis of reciprocity; they establish relationships between States and indi-
viduals. Several undecided issues had to be solved: were all reservations made by States
permissible? If not, who decides on their permissibility? What are the legal effects of
accepting or rejecting a reservation or of having made an impermissible reservation?
Broadly speaking there are two main approaches: one illustrated by the approach of
the UN Human Rights Committee (the 'HRC') that stresses the inadequacies of the
VCLT regime and the other that considers that regime absolutely satisfactory.
There are very few international bodies, other than the European Court of Human
Rights (the 'ECtHR') and the Inter-American Court of Human Rights, that have an
institutionalized procedure to decide upon the permissibility of reservations. In the
Belilos case the European Court of Human Rights decided that a declaration made by
Switzerland when ratifying the ECHR was in fact a reservation of a general character
and therefore impermissible under the terms of ECHR Article 64. The Court severed
the reservation and decided that Switzerland was bound by the Convention in
its entirety.60 Similarly, in the Lozidou case the ECtHR considered that Turkish
reservations to the jurisdiction of the Commission and Court to consider applications
relating to activities in Northern Cyprus were invalid and severable, meaning that
such applications could be considered by the Strasbourg organs, notwithstanding the
intention of Turkey to prevent this.61
60 Belilos v Switzerland, Judgment 29 April 1988, Ser A, No 132, paras 52-55, 60.
61 Lozidou v Turkey (Preliminary Objections), Judgment 23 March 1995, Ser A, No 310, paras 15, 27,
89,90,95.
THE PRACTICAL WORKING OF THE LAW OF TREATIES 195
The question of reservations to human rights treaties was considered by the UN
HRC in a controversial General Comment. 62 The HRC is the body established under
the 1966 ICCPR and has the task of overseeing compliance by States parties with their
obligations under the Covenant. In its General Comment, the Committee took
the view that the Vienna Convention provisions which give a role to State objections in
relation to reservations are inappropriate in the context of human rights treaties
which do not comprise a web of inter-State reciprocal exchanges of mutual obliga-
tions but are concerned with endowing individuals with rights. The HRC took the
view that reservations offending peremptory norms would not be compatible with the
object and purpose of the Covenant and raised the question of whether reservations
to non-derogable provisions of the Covenant are compatible with its object and
purpose. It expressed the view that reservations to the system of individual com-
munications to the Committee established under the first Optional Protocol to the
Covenant would not be compatible with its object and purpose. The HRC also took
the view that it was the Committee itself which should determine whether a specific
reservation was compatible with the object and purpose of the Covenant.
The General Comment provoked strong reaction, including from the UK and US
who considered VCLT Article 19(c) both adequate and applicable to reservations to
human rights treaties· and considered it for States parties to determine whether a
reservation is compatible with the object and purpose of that treaty rather than the
Committee. Moreover, the United States stressed that reservations formed an integral
part of the consent to be bound and are not severable. However, the Committee
affirmed its General Comment in the Rawle Kennedy case, stating that: 63
The normal assumption will be that the ratification or accession is dependent on the
acceptability of the reservation and the unacceptability of the reservation will not vitiate
the reserving State's agreement to be party to the Covenant. However, this assumption
cannot apply when it is abundantly clear that the reserving State's agreement to becoming
party to the Covenant is dependent on the acceptability of the reservation. The same applies
with reservations to the Optional Protocol.
However, in his Second Report as ILC Special Rapporteur Alain Pellet, rejected
the approach of the HRC and argued that the system of the Vienna Convention is
adequate to address reservations in human rights treaties. 64 It is, then, clear that there
is a significant ongoing controversy surrounding this question.
D. INTERPRETATIVE DECLARATIONS
Interpretative declarations are not addressed by the VCLT. They are appended to
treaties by governments at the time of signature, ratification, or acceptance and are
62 See above n 56.
63 Rawle Kennedy v Trinidad and Tobago, Comm. No 845/1999, Decision, 2 November 1999, UN Doc
AJ55/40, vol II, Annexe XI, A.
64 For a summary see YElLe (1997), vol II, pp 53-54, 57.
 MALGOSIA FITZMAURICE
explanatory in character, setting out how a State understands its treaty obligation when
expressing its consent to be bound. However, such declarations must be subject to
close scrutiny. If they change the scope of the obligation, they cease to be declarations
and become reservations. The legal effect of interpretative declarations depends upon
whether they aim to offer an interpretation of the treaty that may subsequently be
proved incorrect (a 'mere interpretative declaration') or whether they offer an inter-
pretation that is to be accepted by others (a 'qualified interpretative declaration'). In
practice, distinguishing between reservations and forms of interpretative declarations
can be a very daunting task.
According to the ILC, this task should be undertaken in good faith in accordance
with the ordinary meaning to be given to its terms, in light of the treaty to which it
refers. Due regard should be given to the intention of the State or the international
organization concerned at the time the statement was formulated.
VII. PROBLEMS CONCERNING THE GROUNDS
FOR TERMINATION
This section will consider some specific issues concerning the external grounds
for terminating or suspending a treaty, these being material breach, supervening
impossibility of performance, and fundamental change of circumstances.
A. MATERIAL BREACH
VCLT Article 60 regulates the consequences of a breach of a treaty obligation
deriving from law of treaties, rather than from the law of State responsibility.
The guiding principle is that of reciprocity. The ILC took a cautious approach to
material breach, considering that a breach of a treaty, however serious, did not ipso
facto put an end to a treaty but that within certain limits and subject to certain
safeguards the right of a party to invoke the breach of a treaty as a ground for
terminating it or suspending its operation must be recognized and Article 60 takes the
same approach.
Taking a strict approach to the effect of a material breach aims at striking a
balance between the need to uphold the stability of treaties and the need to ensure
reasonable protection for the innocent victim of a breach, though it may appear that
the stability of treaties is the first priority. It is certainly true that the ICJ takes a
restrictive approach to the application of Article 60. For example, in the Gabcikovo-
Nagymaros case it responding to Hungary's claim that Slovakia's actions in relation
to other treaties had a bearing upon the assessment of.Hungary's own actions by
saying that 'It is only 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
THE PRACTICAL WORKING OF THE LAW OF TREATIES 197
treaty'.65 The Court explained that, whilst the violation of any other treaty or rules
of general international law might justify an injured State taking other measures, such
as countermeasures, it did not constitute a ground for termination of the treaty under
the law of treaties.
This case is also illustrative of what comprises a material breach. Hungary relied on
the construction of a bypass canal in pursuance of a plan known as 'Variant C' by
Czechoslovakia and which was unauthorized by the original 1977 Treaty between the
parties as the basis for invoking material breach of that treaty. Czechoslovakia claimed
that its plans were justified asa legitimate response to prior breaches of the treaty by
Hungary. The Court found that Czechoslovakia had indeed violated the 1977 Treaty
when it diverted the waters of the Danube into the bypass canal in October 1992 but
that the construction of the works prior to this had not been unlawful. Thus the
notification by Hungary in May 1992 that it was terminating the 1977 Treaty for
material breach was premature as no breach had yet occurred. Moreover, the Court
took the view that by attempting to terminate the 1977 Treaty by means of a declar-
ation issued on 6 May 1992 with effect as of some 19 days later on 25 May 1992,
Hungary had not acted in accordance with the principle of good faith and therefore
had by its own conduct prejudiced its right to terminate the 1977 Treaty. The Court
stated that:
This would still have been the case even if Czechoslovakia, by the time of the purported
termination, had violated a· provision essential to the accomplishment of the object or
purpose of the Treaty.66
The relationship between the material breach of a treaty and the law of State
responsibility, and particularly with countermeasures, is extremely problematic.
Although not resolved by the ILC in its work on the law of treaties it appears that its
intention was that the two regimes should co-exist and the ILC's Commentary to its
Articles on State Responsibility reflect this, indicating that State responsibility does
not deal with the 'consequences of breach for the continual or binding effect of the
primary rule (eg, the right of an injured State to terminate or suspend a treaty for
maj:erial breach, as reflected in Article 60 of the Vienna Convention on the Law of
Treaties)'. The Special Rapporteur, James Crawford, explained that:
There is thus a clear distinction between action taken within the framework of the law
of treaties (as codified in the Vienna Convention) and conduct raising questions of
State responsibility (which are excluded from the Vienna Convention). The law of treaties is
concerned essentially with the content of primary rules and with the validity of attempts
to alter them; the law of State responsibility takes as given the existence of primary rules
(whether based on a treaty or otherwise) and is concerned with the question whether the
conduct inconsistent with those rules can be excused and, if not, what consequences of such
conduct are. Thus it is coherent to apply the Vienna Convention rules as to the materiality
of breach and the severalibity of provisions of a treaty in dealing with issues of suspension,
65 GabCfkovo-Nagymaros Project (Hungary/Slovakia), Judgment, IeJ Reports 1997, p 7, para 106.
66 Ibid, para 110.
 MALGOSIA FITZMAURICE
and the rules proposed in the Draft articles as to proportionality etc, in dealing with
countermeasures. 67
B. SUPERVENING IMPOSSIBILITY OF PERFORMANCE
This ground for termination is wdl established and uncontested. VCLT Article 61
limits this ground to the (permanent disappearance or destruction of an object
indispensable for the execution of a treaty' and it cannot be invoked by a party
that was itself instrumental in causing these circumstances to come about by the
breach of its treaty obligations. Once again, the ICJ has taken a strict approach. In the
GabCikovo-Nagymaros case Hungary argued that the essential object of the 1977
Treaty was a joint economic investment which was inconsistent with environmental
considerations and had ceased to exist, rendering the 1977 Treaty impossible to
perform. The Court observed that if the joint exploitation of the investment was
no longer possible, this was because of Hungary's failure to perform most of the
works for which it was responsible under the 1977 Treaty and, as indicated
above, impossibility of performance cannot be invoked by a party as a ground for
terminating a treaty when it is the result of that party's own failure to perform its
treaty obligations.
C. FUNDAMENTAL CHANGE OF CIRCUMSTANCES
Fundamental change of circumstances as a ground for the termination of a treaty is
controversial. The principle of stability of contractual obligations and the conviction
that (it is function of the law to enforce contracts or treaties even if they become
burdensome for the party bound by them' militates against it (Oppenheim's Inter-
national Law, 1996) but this needs to be balanced against the view that (One could
not insist upon petrifying a state of affairs which had become anachronistic because
it is based on a treaty which either does not contain any specific clause as to its
possible termination or which even proclaimed itself to be concluded for all times to
come' (Nahlik, 1971). VCLT Article 62 takes a particularly cautious approach. It
accepts that termination on these grounds is possible, but it is of limited scope.
It may not be invoked in relation to a treaty which establishes a boundary; and, as
with Article 61, a State may not invoke Article 62 if the change was caused by a breach
of its own international obligations, either under the treaty in question or any other·
international agreement.
The ICJ has taken a very cautious approach to this principle. In the Fisheries
Jurisdiction case it said:
International law admits that a fundamental change of circumstances which determined the
parties to accept a treaty, if it has resulted in a radical transformation of the extent of
67 Third Report on State Responsibility, NCN.4507/Add.3.
THE PRACTICAL WORKING OF THE LAW OF TREATIES 199
obligation imposed by it, may, under certain conditions, afford the party affected a ground
for invoking the termination or suspension of a treaty. This principle, and the conditions
and exceptions to which it is subject, have been embodied in Article 62 of the Vienna
Convention on the Law of Treaties, which may in many respects be considered as a codifica-
tion of existing customary law on the subject of termination of a treaty relationship on
account of changed circumstances. 68
The GabCikovo-Nagymaros case again illustrates the Court's approach. Hungary
identified several (substantive elements' that had been present when the 1977 Treaty
had been concluded but which it claimed had changed fundamentally when it issued
its notice of termination in May 1992, these being: the whole notion of socialist
economic integration which underpinned the 1977 Treaty; the replacement of a joint
and unified operational system with separate unilateral schemes; the emergence of
market economies in both States; the Czechoslovakian approach that had turned a
framework treaty into an immutable norm; and, finally, the transformation of a treaty
inconsistent with environmental protection into a prescription for environmental
disaster. 69
The Court concluded that whilst the political situation was relevant to the con-
clusion of the 1977 Treaty, its object and purpose-the joint investment programme
for the production of energy, the control of floods, and the improvement of naviga-
tion on the River Danube-were not so closely linked to political conditions that
the political changes in central Europe had radically altered the extent of obligations
still to be performed?O The Court drew the same conclusion regarding the changes in
economic systems concluding that even if by 1992 the projected profitability of the
scheme had declined, it had not done so to an extent that would transform the nature
of the parties' obligations. Likewise, developments in environmental knowledge and
environmental law were not completely unforeseen. Having analysed the parties'
arguments the Court concluded that: 71
the changed circumstances advanced by Hungary are, in the Court's view, not of such
nature, either individually or collectively, that their effect would radically transform
the extent of the obligatio~ still to be performed in order to accomplish the Project.
The Court interprets VCLT Article 62 strictly, believing that a fundamental change of
circumstances (must have been unforeseen; the existence of the circumstances at the time
of the Treaty's conclusion must have constituted an essential basis of consent of the
parties to be bound by the Treaty,' believing that 'the stability of treaty relations requires
that the plea of fundamental change of circumstances be applied only in exceptional
cases'.72
68 Fisheries Jurisdiction (United Kingdom v Iceland), Jurisdiction of the Court, Judgment, ICJ Reports 1973,
p 3, para 36.
69 GabCikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, para 95.
70 Idem.
71 Ibid, para 104.
72 Above.
200 MALGOSIA FITZMAURICE THE PRACTICAL WORKING OF THE LAW OF TREATIES 201

FURTHER READING
VIII. CONCLUSION
AUST, A (2000), Modern Treaty Law national Organizations or Between
This chapter has presented the main issues of treaty law found in the 1969 Vienna and Practice (Cambridge: Cambridge International Organizations.
Convention on the Law of Treaties. It has attempted to illustrate the application and University Press). This book is a com- SINCLAIR, SIR I (1984), The Vienna Conven-
interpretation of the Convention in practice through the case law, in particular that of prehensive study of modern law of tion on the Law of Treaties, 2nd edn
the International Court of Justice. Although rightly considered as one of the greatest treaties written from the point of view (Manchester: Manchester University
accomplishments of the ILC, the Vienna Convention does not cover all possible areas of an experienced practitioner. Press). This is a classical book on the 1969
and issues, particularly the question of reservation to human rights treaties and the KLABBERS, J (1996), The Concept of Treaty Vienna Convention on the Law of Treaties
relationship between State responsibility and material breach. The law of treaties is in International Law (The Hague: Kluwer that also includes practice of States and
a classical yet constantly developing branch of international law. Treaties are the Law International). This book is a highly the overview of the International Law
main tool of relations between States and therefore it is only to be expected that the original study of the law of treaties, Commission's work on the codification
rules that govern their application are not static but constantly evolve and reflect often controversial but very thought- of the Convention.
the development of other branches of international law. provoking. This book includes an over- VILLIGER, M (1997), Customary Law and
view· of relevant jurisprudence of the Treaties, A Manual on the Theory and
International Court of Justice. Practice of the Interrelation of Sources, 2nd
REUTER, P (1995), Introduction to the Law edn (Schulthess Polygraphisher Verlag
REFERENCES of Treaties, (Moco, J and Haggenmacher, P and The Hague: Kluwer Law Inter-·
(trans.)), (London: Kegan Paul Inter- national). This book is a systematic and
national). This book presents an in-depth erudite study on written and unwritten
AUST, A (2000), Modern Treaty Law and Invalidity of and Termination of Treaties',
study of the 1986 Convention on the Law international law.
Practice (Cambridge: Cambridge Uni- 65 AJIL 747.
of Treaties between States and Inter-
versity Press). OPPENHEIM (1992), JENNINGS, SIR R and
BOYLE, A (2000), 'Some Reflections on the WATTS, SIR A (eds), Oppenheim's Inter-
Relationship of Treaties and Soft national Law, 9th edn (Harlow:
Law', in Gowlland-Debbas, V (ed.), Longman).
Multilateral Treaty Making (The Hague: REDGWELL, C (1993), 'Universality or Integ-
Martinus Nijhoff), p 25. rity? Some Reflections to General Multi-
CHINKIN, C (1993), Third Parties in lateral Treaties', 64 BYIL 245.
International Law (Oxford: Oxford Uni- SHEARER, IA (1994), Starke's International
versity Press). Law, 11th edn (London: Butterworths).
FITZMAURICE, SIR G (1951), 'Treaty Inter- SINCLAIR, SIR I (1984), The Vienna Con-
pretation and Certain Other Treaty vention on the Law of Treaties, 2nd edn
Points, 1947-1951',22 BYIL l. (Oxford: Oxford University Press).
KOSKENNIEMI, M (1989), From Apology THIRLWAY, H (1992), 'The Law and
to Utopia; The Structure of International Procedure of the International Court of
Legal Argument (Helsinki: Finnish Law- Justice, 1960-1989', Part Three, 63 BYIL l.
yer's Publishing Co).
WElL, P (1993), 'Towards Relative Norma-
NAHLIK, SE (1991), 'The Grounds of tivity in International Law', 77 AJIL 413.
 PART III

THE SUBJECTS OF
THE INTERNATIONAL
LEGAL ORDER
 7
STATES AND RECOGNITION
IN INTERNATIONAL LAW
Colin Warbrick

SUMMARY

International law is mainly made by States and is mainly about the conduct and relations
of States. States as material entities naturally predate the emergence of international law
but, as these social entities began to conduct their relations on a basis of law, it was
necessary to identify which entities were \States' for this purpose. Like all legal systems,
international law developed rules on legal personality, which initially were dominated by
the factual characteristics of statehood. Despite it being the case that legal statehood
carried duties for States, it was a status worth having and generally sought by any entity
even controversially satisfying the characteristics for being a State. The State system
emerged in Europe during the seventeenth century and was originally confined to European
States, the badge of entry being that the putative State satisfied the 'standard of civiliza-
tion', essentially that it was a Christian State. The universalization of the State system
began in the nineteenth century. It took a huge leap forward with the process of colonial
self-determination, principally during the period from 1945 to 1990, when the number of
States more than doubled. The right of colonial peoples to self-determination generally
resulted in statehood. Nothing more clearly demonstrates the legal character of statehood
than the effect that the law of self-determination has had on the understanding of what it
takes to be a State. The standard of the material effectiveness of a government of a State
created in compliance with self-:determination has been diluted; purported States, created
in contradiction to the law of self-determination have been regarded as unlawful and
denied the status of legal States.
The phenomenon of the State with a less than effective government has given rise to the
notion of the \juridical State', a State which relies for its status not on its material
attributes but on its legal basis. Some mechanism for determining claims to legal status
becomes even more necessary. In the decentralized international system, the decision
falls first to the States themselves. The role of recognition thus becomes of some impor-
tance. Recognition is an institution with several functions in international law and the
operation of an act of recognition or of a decision not to recognize an entity as a State
206 COLIN WARBRICK
must be examined carefully in its context to determine its legal consequences. The decision
not to recognize must be distinguished from an act of non-recognition, an act essentially
within the sphere of State responsibility, rather than the law of personality. There
have been attempts by the writers to try to institutionalize the process of recognition
of States but the process of collective recognition as such in international law does not
exist. The decision to admit States to membership of organizations and on the legitimacy
of the claims of persons to represent a State have close connections with establishing
the status of a State or government but neither is conclusive in legal terms. There was
an important body of State practice on recognition of States following the disintegration
of Yugoslavia and the territorial changes in the Soviet Union in the early 1990s.
The practice was far from coherent and showed up weaknesses in whatever general
explanations had previously been given for State practice in matters of recognition. In
Yugoslavia, there were attempts to constitute States which did not satisfy the traditional
criteria of statehood. In the case of Bosnia, the process of trying to establish the material
State still continues. It is one item in a significant development in recent international
law as States and international organizations have commenced an ad hoc process
of \State-building'. If sustained, this development will be one of the most funda-
mental modifications of the legal idea of statehood since the concept became part of
international law.
1. STATES
A. INTRODUCTION
1. Terms
'International law' , the English author Thomas Baty wrote a hundred years ago, 'it is
generally agreed, has something to do with States' (Baty, 1930, p 18). The mild irony of
that 'generally agreed' and that 'something to do with' is even more necessary today
than it was when Baty was writing, if a proper grasp is to be had of international law.
International law is mainly to do with States and, where it is to do with something else,
it is because States have chosen to make it so, using their powers to bring any change
about-by creating international organizations, by conferring rights and imposing
duties on individuals, by acknowledging the legal character of claims of 'peoples' of
'self-determination units'.l Statehood is foundational of international law, not the
other way round. States were the original and remain the primary actors in the
international legal system. As the State system developed, States relied on inter-
national law for two objectives-to protect the integrity and identity of States and,
increasingly, to allow them to cooperate where they deemed it to be in their common
1 See McCorquodale, Ch 9 below.
STATES AND RECOGNITION IN INTERNATIONAL LAW 20 7
interest to do so. Originally statehood was not conferred by international law: it was
the material condition of certain political entities which chose to interact with
one another in particular ways. Now, it is defined by international law: entities which
satisfy the international legal criteria of statehood are entitled to claim to be States,
which means that they assume the general rights, privileges, and immunities and
they must accept the general duties which international law attributes to States.
There are powerful legal advantages to being a State, which in practically every
case, cause a qualified entity to want to claim its prerogatives, even though it will
be at the cost of accepting the commensurate duties. What we have to consider is
whether the traditional criteria of statehood are now the only factors bearing on
statehood.
In this chapter, 'State' means an international person as described below. 'State-
hood' is the status of being a State: it covers both the criteria for being a State (what it
takes to be a State) and the consequences of being a State (what it means to be a State).
'Entities' are things which claim to be States-the claim may be good or bad. The
means by which a State acts in international law is its 'government'; the means by
which an entity acts will be called its 'authority'. The relations between States are
governed by international law; the relations between States and entities mayor may
not be governed by international law. 'Sovereignty' (which will be used as little as
possible) refers to the ultimate legal authority within a national legal system (internal
sovereignty) and the power which a State has to conduct relations with other States
according to the rules of internationallaw. 2 'Recognition' is a unilateral act of a State
by which it acknowledges certain facts, in the present context, the facts which con-
stitute an international person, the State, or its government. Recognition serves two
purposes, though often at the same time-the recognizing State accepts the status of
the entity it recognizes (in practice, recognition is reserved for acts of States with
respect to other States and governments), which means that their interactions are
governed by international law; and the recognizing State establishes relations with the
other State, which provide the means, inter alia, of conducting their transactions in
accordance with international law. 3
2. Challenges to the State
An approach to any aspect of international relations, including international law,
which places the State at the centre of the account is vulnerable to a number of attacks
upon its correctness and its utility. The challenges come from two directions. First, it
is said that States (or some of them) are too strong and conduct themselves in ways
that are undesirable or even unlawful without any effective challenge being possible
against them. So, States which routinely violate on a large scale the rights of their
people, are able to resist the lawful but puny external pressures to force them to
change and may rely on their prerogative of territorial integrity to claim an immunity
2 Sovereignty is clearly both a more complex and a more controverted idea. See Krasner, 1999.
3 Recognition is considered in Section II of this chapter.
208 COLIN WARBRICK
against any more forceful action to compel them to change, such as the use of force.
Such States may be powerful, like China, or relatively weak, like Burma or Zimbabwe,
but they are strong enough locally to pursue their repressive projects and protected
by international law against measures which would actively prevent them from doing
so. So, it is said, the State is an obstacle to improving the human condition. The
second complaint is that States (or some of them) are too weak and cannot provide
for the needs of their people, even· with international assistance, because of the
absence of internal order, population pressures, internal divisions, corruption, lack of
development, and the ravages of the climate. A State cannot play its part in improving
the human condition. These States are a mere sub-set of those said to be inadequate in
the face of what has come to be called the forces of globalization, the predominantly
economic but also cultural forces of the global market, where money, jobs, and
materials can be moved by transnational, non-State actors (multinational enterprises)
for reasons which disregard the interests of any particular State and which individual
States (or even combinations of them) are unable to bring under control. At its peak,
speculation of this kind drew apocalyptic visions of the 'end of the State'. Inter-
national lawyers, faced with the death of the State, would be faced also with the death
of international law. The Empire of the World State has no place for international
law and the fissiparation of States into parochial or functional units subservient to
the currents of globalization would not sustain entities able to assert the qualities of
sovereignty and independence which characterize States, so international law would
disappear this way, too.
So far, international lawyers, perhaps not surprisingly, given the consequences for
their discipline, have not submitted to claims about the proximate end of the State.
After an impressive survey of the political and economic trends which are said to have
led to discontent with the State, Professor Kingsbury comes to its defence. He
emphasizes that the aspirations of globalization are not restricted to the simple con-
ditions for worldwide markets but require of States submission to standards of
human rights, of political organization, of arms control, the commitment to which is
firmer in the powerful States in the West than it is universally. To the extent that these
values for an international system are resisted by States, they will rely precisely on the
pluralism that characterized the rise of the State in the first place-the right to make
fundamental choices without external interference. Whatever the power of the forces
moving in favour of economic globalization, the same is not true of the humanitarian
and security considerations. In the absence of any 'natural' force in their favour,
the route to their realization is through cooperation (Kingsbury, 1998). Professor
Schachter (1998, p 22) concluded his review of the centrifugal and centripetal trends
in the international system thus:
... it is most unlikely that the state will disappear in the foreseeable future. The resilience of
the state system for the past three centuries signifies more than the strength of governing
elites. The critical fact is that states alone have provided the structures of authority to cope
with the incessant claims of competing social groups and to provide public justice essential
to social order and responsibility.
STATES AND RECOGNITION IN INTERNATIONAL LAW 209
However, there is not the same unity about the perceived responsibilities of the State
system for the protection and delivery of the basic rights of individuals. Professor
Schreuer, criticizing as theoretically and practically incompetent a model of inter-
national law which gives predominance to the State, points to delegation and
relinquishment by States of some of their traditional functions to other non-State
international actors, mainly international organizations, and to sub-State actors,
such as federal States or devolved authorities. He draws attention to the increasingly
complex structures within which international legal relations are conducted, with the
European Union as the primary example of new possibilities. Even he, though,
concedes:
It is likely that the archetype of the State, as we know it, will continue to exist for
some time and that it will even persist in its role as the most powerful actor (Schreuer,
1993, p 453).
Schreuer's impressive prescription for a better international order lacks one thing-
the means for getting to there from here other than through the instrumentalities
of international law. States have kept their hands on the levers of international law-
making and their cooperation would have to be enlisted if projects like Schreuer's
were to go forward. As for globalization, the lack of regulation is undoubtedly due in
part to the transnational nature of the activities involved but it also reflects a choice-
some States have actively embraced the process of globalization and have not always
set about regulating the activities which comprise it. The means are there-to estab-
lish international regimes which will control through the coordinated activities of
States such matters as the States choose. The rapid and concerted action against
terrorist financing after '11th September'4 is an example of how States can respond
if they wish. But if not States, then who? If not by international cooperation, then
how? On all but the most pessimistic (or depending upon one's inclination, gung-ho)
view, States still matter. While seeking, not unnaturally to stake a claim for the UN's
role in regulating a globalized world, the Secretary-General recently argued that the
success of globalization depended upon the State, and better organized States, at
that. 5 The State retains its position as the predominant, authentic source of law,
whether that law be international or domestic·(Jennings, 2002). States have used their
domestic independence to expand immeasurably their functions in the domestic
order and they have increasingly regulated matters within these extended com-
petences at the international level but States they remain (Schriver, 1990). This
chapter is about States.
4 SC Res 1373 (28 September 2002) and Report of the Chairman of the Counter-terrorism Committee,
UN Press Release, SC17522, p 4 (4 October 2002).
5 See Annan, K, 'Globalisation's Challenges make Well-organised States more necessary, not less',
SG/SM/8264, 7 June 2002.
210 COLIN WARBRICK
B. HISTORY
1. Why States?
As Dr Neff says in his chapter on the history of internationallaw,6 States emerged in
their modern form in the seventeenth century but, since this was a prolonged pro-
cess, starting before its culminating rush at the Peace of Westphalia, we can see now
that there were entities which claimed to be States and which looked like States before
1648, the date of the Treaty of Westphalia and the date by which the modern State
system is generally agreed to have been established. Aspects of the old order survived
but not for long: (Westphalia was ... as clean as historical faults corne' (Philpott,
2001, p 157). Dr Neff indicates that crucial elements in the gestation of States as the
dominant form of political organization were both positive, the development of cen-
tralized authority, capable of speaking for the peoples of a territory and ensuring, at
least to a worthwhile degree, that these same people would comply with any under-
takings given to other States, and negative, the escape from the imperial pretensions of
the Holy Roman Empire to dictate to States about important political choices. States
(perhaps, better, their rulers) wanted to be able to make choices about how things
were, notably in matters of religion, and were now in the position to make those
choices count. Pluralism rather than homogeneity became the characteristic of the
international system. In his account of how the State emerged as the dominant form,
- Professor Spruyt identifies in rather more detail the factors alluded to by Dr Neff. He
adds another factor-the advantages in social, economic, and military efficiency of
the territorial State over its rivals-(Spruyt considers city-leagues and city-states)-
encouraged (institutional mimicry', a process furthered by the established States
themselves. He writes:
Selection [of statehood] was ... partially driven by competitive efficiency. It also advanced
... by the process of mutual empowerment. Sovereign actors only recognized particular
types of actors as legitimate players in the international system. Because the Hanseatic
system of rule proved to be incompatible with that of territorially defined states, and
because it was less able to credibly commit itself to international treaties, it was not
considered to be a legitimate player in international relations (Spruyt, 1994, pp 178-179).
So, territorially-defined, populated entities under effective governments, both
domestically and internationally (made possible by the material as well as the
ideological notion of sovereignty) acknowledged the existence (and ultimately the
rights) of bodies like themselves. The status of (State' followed from its material
existence. As these polities, now States, developed rules for relations between them-
selves, they also developed rules which identified the attributes necessary as a matter
of law for entities to be States, with which they would deal on the same terms upon"
which they dealt with one another. The desirability of attaining the status of State was
given another incentive byVattel's endorsement of their power to make the law, of the
6 See Neff, above, Ch 1.
STATES AND RECOGNITION IN INTERNATIONAL LAW .211
power to create, modify, extend, or terminate the legal relations that one State had
with another (Vattel, 1811, pp 196,227,229). Since the States were, though, part of a
system, the system had to have some basic, general rules, lest it dissolve entirely into
a regime ruled by power, with the ever-present threat of the restoration of Empire
eliminating them all. What the States wanted above all was to define themselves in the
way that they chose-what religion, what political system, what economic arrange-
ments, the core elements of their domestic jurisdiction. Equally, these separate units
needed means for making contacts and completing transactions between themselves.
Accordingly, principles of non-intervention feature prominently among these basic
rules for protecting domestic jurisdiction, as do those on diplomatic representation
for establishing and furthering State relations inter se. These matters need not neces-
sarily have been reduced to law but, observing the practice of States, Vattel discerned
that that was the way in which States regarded certain practices, apparently confident
that a legal right better protected an-interest than a moral one, that a legal duty more
likely promised compliance than a political one. The international law which
developed dealt not only with cooperation but with the minima of co-existence and
with the regulation of hostile relations, that great body of rules called the (Law of War'
(Nardin, 1998, p 20).
2. Sovereign equality
Not the least of Vattel's contributions to the development of international law was
his identification, drawn ironically enough from natural law but the mainstay of
positivism in international law, of the principle of the equality of States (Vattel,
1811, pp lxiii-lxiv). In material terms, the equality of States is manifestly a fiction; in
political terms, it was rapidly undone by the reaction of the Quadruple Entente to the
ambitions of Napoleonic France, when the great powers assumed a dominance of
the international system which prevailed for a hundred years (Mowat, 1930). This was
not, though, an assertion of hegemony but of the creation of a balance of power, in
which the preservation of the State system was the significant aim. But from a
legal point of view, the doctrine of equality is crucial to achieving all law between
sovereign entities:
The concept of sovereign equality is, in some respects, an essential element of the inter-
national legal system (Byers, 1999, p 36).
I should leave out the (in some respects' and adapt Professor Brownlie's position that:
The sovereignty and equality of states represent the basic constitutional doctrine of the law
of nations which governs a community consisting primarily of States having a uniform legal
personality?
Expressed this way, it is not quite the grundnorm of the international legal system:
rather one needs something like Kelsen's formulation-that the binding force of
7 Brownlie, 1998, p 289. See also Cassese, 2001, P 88- 'the fundamental premise on which all international
relations rest'.
212 COLIN WARBRICK
customary international law rests on the hypothesis that international custom (that is,
the practice of States) is a law-creating fact (Kelsen, 1966, p 446)-because whatever
else it consists of, the basic norm must include some element to explain the binding
force oflaw. Brownlie's reference to sovereignty and equality as 'basic constitutional
doctrine' tells us what these States, the practice of which generates law, are like.
Sovereign equality of States is a formal doctrine. It is quite clear that States are far
from equal in their material and political capacities. However, in its core meaning, the
idea gives content to the idea of the personality of States: it tells us something about
States in general, rather than about a particular State. We shall look at this matter in
more detail shortly but, for the present, the doctrine of sovereign equality means that
as a matter of foundational principle, all States may participate in the law-making
processes of international law, all States may make the initial determination about
whether their rights have been violated and, if so, about what action to take to restore
legality, and all States will bear international responsibility for failure to comply with
their international obligations. All these are formal matters. The actual capacity of
a State to influence the law-making processes or to obtain compliance with its
legal rights is in large measure proportionate to the resources available to the State
(Warbrick, 1994). These attributes imply the existence of a legal system by which the
powers, etc. of States are identified and may be exercised. Although it is common
to speak of States being members of 'the international community', it is probably
better to regard them as members of an international system (Bull, 1995, Ch 1;
Nardin, 1998) which avoids misleading assumptions about quite what the values and
processes of this international community might be.
It is entirely possible for a legal system to have legal rules which define elements of
its basic norm. For the United Kingdom constitution, with its basic norm of parlia-
mentary sovereignty, legislation has, from time to time, provided legal definitions of
each of the three elements that compromise the sovereign parliament. 8 So it has been
in international law. Some of the foundational characteristics of the legal order have
been refined by the legal system: rules of law have emerged to identify 'States' as legal
persons, to elaborate the doctrine of sovereign equality, and to establish the funda-
mental rights and duties of States. Statehood being an attractive status, international
law has rules to determine what it takes to be a State (the question of personality) and
what it means to be a State (the rights and duties which are a consequence of being
a State). It is also possible for exceptions to be made to the basic rule for particular
circumstances, such as the provisions in the UN Charter, giving privileges to the
permanent members of the Security Council and conferring the power to act with
binding authority over members to the Security Council (Simpson, 1996).
3. Statehood and the international system
Continuing through the nineteenth century, possession of the attributes of statehood,
while a necessary condition for being a State, was not sufficient. Legal statehood was a
8 eg Abdication Act 1937, Representation of the People Act 1948, HOl:!se of Lords Act 1999.
STATES AND RECOGNITION IN INTERNATIONAL LAW 213
European idea. It carried privileges and entitlements that the European States were
not prepared to extend to entities outside their political system (Gong, 1994). Only
gradually did this attitude change. It is common to speak of States being 'admitted' to
the 'society of nations' - Turkey by the Treaty of Paris in 1856, Japan, China, Persia,
and Siam by their invitations to the Hague Conference of 1899 (Lawrence, 1919, p 8;
Oppenheim, 1905, pp 108-110). Meantime, the colonial territories of the European
States were considered simply parts of their territories, from the point of view of
international law, as much the territory of the State as its metropolitan homeland.
The last gasp of the 'standard of civilization' in this Eurocentric sense (essentially,
Christian) was the reference in the Statute of the Permanent International Court of
Justice to 'the general principles of law recognised by civilised nations' (Article
38(1)(c)) as one of the sources of international law to which the Court should have
regard. The process of dealing with actual States as real States continued, Ethiopia and
Liberia were members of the League of Nations. So was India, despite its position as a
British colony. The transformation of India's status to full statehood, like that of other
colonial territories, was to take some time. In the end, the principle of universalism
of representation of States prevailed and one is beginning to hear again appeals to
a revival of a new standard of civilization as standard of legitimacy, whether it be to a
notion of the liberal State (Teson, 1992) or compliance with human rights obligations
(Donnelly, 1998).
c. SELF-DETERMINATION 9
1. Claims to be a State
While the core idea of statehood has survived in its original, material characteristics,
even though the details have been refined by law, one set of legal rules has had a
profound impact on the idea of statehood. It is the law of self-determination.
Although statehood was certainly a status worth having, there was no right in inter-
national law in any entity to become a State. While satisfying the material conditions of
statehood, even if they were achieved by force of arms, in general would lead to legal
statehood, as it did, for instance, for the States which emerged from the rebellions
against Spanish rule in its colonies in Latin and Central America, entities could
not otherwise have claimed the right to be States. It was the consolidation of their
rebellions into actual independence from Spain, despite Spain's continuing formal
claims of sovereignty, which was the source of their statehood, not any claim of right
that Spain's authority be replaced.
Claims of 'national self-determination' as claims of political entitlement, go back
to the French Revolution. They were as much claims about the internal structures of
government of existing States as they were about statehood (Cassese, 1995, pp 11-13).
It was the enlistment of self-determination as the guiding principle for the creation of
9 See generally Cassese, 1995.
214 COLIN WARBRICK
States and the drawing of their boundaries at the end of the Great War which gave
it a role in relation to statehood. The role though was political and the European
powers were able for the time being to resist its application to their colonial territories
(Cobban, 1945). Later, though, indigenous movements in the colonies and the sup-
port for decolonization by both the United States and the Soviet Union changed the
situation. The UN Charter has the implementation of self-determination as one of its
purposes, although the provisions which deal specifically with <dependent territories'
(Chapter XI) make no reference to statehood as an option for the people of such
territories. Nonetheless, independent statehood did become the practically inevitable
result of the exercise of the right of self-determination. The General Assembly
confirmed that statehood was one option for dependent people lO and it was the
option which they generally chose, fuelling the greatest expansion in the number of
States of all time. From 1950 to 1990, eighty ex-colonial territories became States and
members of the United Nations, making up one-half of its membership.
The implementation of the attainment of statehood was neither uniform nor
immediate. Rather, it was a process, a process which could be consensual between the
colonial authorities and the people of the territory (as, ultimately, were many of the
transfers of sovereignty from the British and French Empires). Where independence
was resisted by the colonial power, then wars of national liberation lasted for many
years, in the cases of the Spanish and Portuguese colonies until the establishment
of democratic governments in the metropolitan territories. The result was that the
movement to what was inevitable statehood took place over several years, though
the conclusion of the process, like that in the cases where independence had been
conceded, did take the form of practically instantaneous statehood.
2. Uti possidetis
In general, statehood was granted or established within the territories of each colonial
administrative unit, the borders of which were sometimes existing international
boundaries between the colonies of different States, say, between the British and
French territories which became Ghana and Togo, sometimes, the internal boundaries
of a single colonial power, for instance, between Uganda and (then) Tanganyika. This
practice was the adoption of the principle of uti possidetis, following the pattern in the
creation of States in Spain's Latin American colonies. It was given particular political
and legal weight in Africa by the decision of the Organization of African Unity in
1964 by Resolution 16(1) by which members pledged themselves to respect colonial
frontiers as they existed at the moment of decolonization (Shaw, 1996, pp 97-105).
Using the established boundaries, however arbitrary and dysfunctional they might
have been, was essential to identify both the territory in which the statehood option
was to be exercised and the people, the people of that territory, who were entitled to
make the choice.
10 Declaration on the Granting ofIndependence to Colonial Territories, GA Res 1514 (14 December 1960)
and see also GA Res 1541 (1960).
STATES AND RECOGNITION IN INTERNATIONAL LAW 215
Self-determination, even as it developed as a legal principle, did not create state-
hood, so much as a claim to statehood for the people of an identifiable territory.
Many of the States which emerged from the application of the principle of self-
determination were conscious of the destabilizing possibilities for their newly won
independence if the principle were applied to them. They denied its application
beyond the colonial context. Self-determination was a unique process for each terri-
tory, allowing its people to escape from external domination. Where those people
wished for statehood, that was the only legitimate end, the most notable example
being East Timor which became independent as Timor-Leste in 2002, having being
invaded in 1975 by Indonesia, an action deemed by the United Nations to be unlawful
by reason of its incompatibility with self-determination. If the colonial State were
willing to terminate its authority over a territory, there were no further inquiries as to
the empirical viability of the State there created. No other State or entity had any
legitimate claim to authority over the territory. Where the colonial State resisted
independence, the process of attaining statehood might be prolonged but the rights
of the colonial power became increasingly precarious until they were terminated
altogether. 11
The principle of colonial self-determination and the legal consequences of its
application are no longer controversial. The same cannot be said about claims that
self-determination has a role discrete from its place in decolonization. In the Burkina-
Paso v Mali case, the International Court of Justice said:
[uti possidetis] is a general principle, which is logically connected with the phenomenon
of obtaining independence, wherever it occurs. Its obvious purpose is to prevent the
independence and stability of new states being endangered by fratricidal struggles provoked
by the challenging of frontiers following the withdrawal of the administering power. 12
The clear implication was that the principle of uti possidetis was of general applica-
tion. The close relationship between uti possidetis and self-determination could not
be denied and a life has been developed for self-determination after and distinct from
its decolonization aspect. First, in a normative sense, account must be taken of the
common provision of the two UN Covenants on human rights which speak of
the right of self-determination of <all peoples', viz. a right not restricted to colonial
peoples. It is equally clear, though, that this was not intended to give rights to any self-
constituting group which chose to style itself <a people', especially not a right to form
a State. Though not free from controversy, the right in the Covenants appears to be
the right of the people of a State as a whole to a system of responsive and inclusive
government. It is a principle of internal self-determination, both a condition for and
a consequence of the effective enjoyment of the rights in the Covenants. There is
rJothing in the principle of internal self-determination which can be appealed to
,!laim a right to statehood for the people (however identified) of a territory (however
Il See, eg, Crawford, 1979, pp 260-261, referring to Guinea-Bissau.
12 Frontier Dispute, Judgment, IeJ Reports 1986, p 554, para 20.
216 COLIN WARBRICK
identified) within an existing State. As a matter of political argument, the association
between internal and external association cannot always be avoided. The argument is
made that, in the extreme case, the denial of internal self-determination might, where
statehood is a practical option, lead to a right to secession for a population oppressed
by its existing government. It remains a political claim: State practice, hardly sur-
prisingly, resists any right (or, even, implication of a right) of secession, leading to
statehood against the will of the present sovereign (Crawford, 1979). The matter
was fully investigated by the Supreme Court of Canada in Reference re Secession of
Quebec, which concluded that there was no right under international law to unilateral
secession, where the central government represented 'the people as a whole on the
basis of equality and without discrimination'. 13 When the Security Council has deter-
mined a situation to constitute a threat to the peace where secessionist aspirations of
a people are a cause of the tension, the Council has put the preservation of the
territorial integrity of the State affected above the creation of a new State. 14
The other impetus for a post-colonial role for self-determination comes in the
context of the other great State-creating events of the late twentieth century.
The reconstitution of the Soviet Union and the dissolution of the Socialist Federal
Republic of Yugoslavia ('Yugoslavia') were part of the political changes which
followed on the collapse of Soviet hegemony over the States of central and eastern
Europe and of control within the Soviet Union itself after 1989. In many cases, what
happened was a change of government-the identity and personality of the State
remained unchanged, for instance, in Poland and Hungary. In the case of the Soviet
Union, the creation of new States resulted from a consensual process between
the government of the Soviet Union and the authorities in the federal units of the
Soviet Union. What resulted was a territorially reduced State of the Soviet Union,
which changed its name but not its identity to 'Russia' and independence for all the
non-Russian, federal States. In the cases of the Baltic States of Estonia, Latvia, and
Lithuania, this was a restoration of the previous status as States which had been
denied by their forcible incorporation into the Soviet Union in 1940. In all the new
States, including the Baltic States, referenda were held to establish the wish of the
people for independence-all were in favour. No other people. such as Tartars or
Chechens in Russia or Abkhasians in Georgia, were given the opportunity to establish
their own future status. Even if not expressly, the principle of uti possidetis was rigidly
followed along the lines of then internal federal boundaries of the Soviet Union
(Gray, 1992).
/ of individuals in domestic law as 'natural persons'. This is to disguise or avoid the
In Yugoslavia, the secession of any of the constituent federal States was strongly,
ultimately, forcibly resisted by the Serb-dominated federal government. From the first
assertions of sovereignty by Croatia and Slovenia in 1991, a process of disintegration
began which ended with the Dayton Accords in 1995. The events, which will be
described further below, resulted in the creation of five successor,States to Yugoslavia
13 Reference re Secession of Quebec [1998] 25 SCR 217, para 154.
14 See, eg, Iraq, SC Res 688 (5 April 1991); Yugoslavia (Kosovo), SC Res 1244 (10 June 1999).
STATES AND RECOGNITION IN INTERNATIONAL LAW 217
(which disappeared-the new Federal Republic of Yugoslavia being one of the
successors). TEte process had political and military elements to it and, unusually, a
judicial component-the Badinter Commission (Craven, 1996)-the decisions of
which drew on legal concepts of statehood and self-determination in its advice about
how the process of dissolution should be managed. Again, in each case, the people of
each putative State were consulted about whether or not they wished a new State to be
created on the territory of their federal State. Again also, only the people of each
federal unit were offered the option. It was denied to ethnic-Serb groups in territory
in Croatia and to the ethnic-Albanian dominated people of the province of Kosovo
within Serbia. 15
The events in the Soviet Union and Yugoslavia indicate that, while there may not be
a right to secession for any people in international law, where a change of sovereignty
is contemplated, perhaps under the pressure of something like a denial of internal
self-determination, the people of the territory must be consulted, with the implication
that, if they do not want statehood, then the creation of a new State lacks legitimacy
and even legality, whatever the empirical viability any entity might have. It is an
indication that compliance with the principle of self-determination may have a nega-
tive role in the lawful creation of States, ie, failure to comply with its requirements
may be a bar to statehood, but that self-determination is not a positive element of
statehood, such that an entity not otherwise a State might legally assert that status on
account of the law of self-determination. Consensual changes of sovereignty, includ-
ing the creation of new States, remains an option. The State of Czechoslovakia dis-
solved itself into the new States of the Czech Republic and Slovakia in 1993. Equally,
one or more States might agree to join together to form a single State, as Tanganyika
and Zanzibar did or one State may agree to absorb another as the Federal Republic of
Germany did with the territory of the German Democratic Republic in 1990.
D. PERSONALITY-WHAT IT MEANS TO BE A LEGAL PERSON
1. Introduction
We tend to take the legal personality of the core actors in any legal system for granted,
as though a natural and given proposition. 16 It is common to refer to the legal status
legal quality of the concept of personality. Although we may entertain little doubt
about the status as a legal person of practically any individual who is brought to our
attention, there remains at the edges of the concept real difficulties-is a 'foetus' a
legal person? is a comatose individual in a permanent vegetative state still a legal
person? These are questions which are answered by the law. They may be answered
15 Grant, 1999a, ch 6. For criticism of the use of uti possidetis by Badinter in fixing boundaries, see Radan,
2000.
16 Professor O'Connell does not even find need to discuss the position of the State in his treatment of
personality (O'Connell, 1970, p 83).
218 COLIN WARBRICK
differently in different legal systems. So it is with States. Whatever the origins of States
as social phenomena, the international legal system now is equipped with rules which
enable the identification of States-what does it take to be a State? States are not,
though they once were, the only legal persons. States have used international law to
establish other rules which define the characteristics of 'international organizations';
'peoples' of 'self-determination units' enjoy legal personality; so, too, do individuals.
In each case, it is the law which says who is included. The law on personality can
work also in another way by excluding from the category of 'person' entities which
otherwise appear to satisfy the necessary criteria. The identification of some 'natural
persons' as slaves is an act of law, classifying some apparent persons as things and
providing the means for resolving disputed cases about which category a particular
individual belongs. So, there are two aspects to the law on personality-it provides the
means of determining the limits of a particular category of personality and it provides
rules of exception, to exclude certain, otherwise apparently qualified persons because
of some other characteristic which they possess or display.
2. International legal personality
To say that an entity is a legal person in any legal order might not be to say very much
(O'Connell, 1970, pp 80-81). The rights and duties of the class of person to which the
entity belongs must be further identified by the law. However, the important point
about personality is that it may indicate membership of a group: indeed that will
most usually be the case. So, identifying an entity as a State, as a legal person, identifies
it as a member of a category, a category of legal persons who share legally-defined
qualities-because they are States, they all have certain rights, duties, powers, and
immunities. We have seen that for States, one important right which they have
because they are States is the right to engage in the law-making and obligation-
creating processes of international law. This means that States may a:dd rights and
assume duties beyond those deriving from their mere status as States but this is a
power which derives from their personality, not something which confers it: so, we say
'Because X is a State, it may make treaties', not 'X may make treaties, so it is a State'.
Put another way, if entity X has the power to make treaties, X is an international
legal person of some description-but, if X is a State, it has all the powers and duties
which States have, which include the power to make treaties; if X is an international
organization (which also have the power to make treaties), X has all the powers, etc.
of international organizations, which are considerably different from those of States.
Because personality in domestic law is conferred by law and because that law is
general law, an entity which is a person is a person for all other legal persons in the
legal system. Because international personality can be created by treaty, in inter-
national law, legal persons may have a partial legal existence, a person for some (the
parties to the treaty) but not (necessarily) a party for others, those States not party
to the treaty.I7 Is the position different for States? The criteria of statehood are
17 See Akande, below, Ch 8.
- - - _.._ - - -
STATES AND RECOGNITION IN INTERNATIONAL LAW 219
established by customary international law. In principle, then, they are binding on all
States. If entity X is by customary law a State, it is a State for all other States.
The approach just set out does not receive universal approval. There is a significant
body of international legal writing which takes a different attitude to personality.
It originates with the Yale (or New Haven) School of international juris-
prudence established by Professor Harold Laswell and Myers McDougal. The focus
is on 'actors' as a material phenomenon-persons who, in fact, have an impact on
and an interest in inter-State relations. A leading proponent is Judge Rosalyn Higgins.
She admits the general thesis advocated in this chapter only as a temporary phase.
She writes:
International law is, for the time being still primarily of application to states. States are, at
this moment in history, still at the heart of the international legal system (Higgins, 1994,
p 39, emphasis added).
However, when it comes to individuals, she rejects the traditional doctrine that they
are only objects of international law, simply constituent elements of the real subjects,
States. She demurs, even, from the proposition that it is States who confer legal status
on individuals. Instead, she addresses the position of 'participants' in the transactions
across state lines (p 50). Judge Higgins would maintain that any participant may
invoke its interest in any forum to which it has access and seek the application of any
international legal standard from which it would benefit. But this pragmatism makes
right (or duty) the touchstone of personality and deprives the idea oflegal personality
of the general qualities which give its value. The same reasoning would apply to States
if they had no rights by reason of their status but only as a result of their actions and,
then, subject to accommodating the claims of other interested actors. To understand
personality in this way is to deprive it of its characteristic of generality and its legal
utility-each situation becomes one for resolution in its context. States, having no
general rights because they are States, must assert them on each occasion they seek to
. rely upon them. This ad hoc vindication of rights leads to inefficiency and uncertainty.
) The status of statehood can be contrasted with the position of Taiwan, not a State but
a sui generis international person, the capacities of which depend upon the particular
context in which it exercises its material powers on the international plane. We cannot
say what Taiwan is, only what rights and duties it appears to have (Charney and
Prescott, 2000). We can say what a State is and what that means for it. What lies
behind the New Haven approach and its imitators is the policy objective of using
the idea of personality to confer rights on persons without reference to the usual law-
making processes. The argument is made with clarity but un convincingly by Nijman
(2002, pp 141-144) who goes so far as to base the authority of international law on the
consent of 'the people'.
It is at this stage that the role of recognition in relation to statehood becomes a
factor. Recognition of an entity by a State is not a criterion of statehood but pre-
condition for the legality of the act of recognition. The details of this argument appear
below. No State is obliged to recognize another, though the benefits of doing so over
 COLIN WARBRICK
220
the disadvantages of not doing so usually make the action practically automatic.
Furthermore, if a State does not recognize another and, on that basis, does not treat
the other entity as a State, then the first State runs the risk of incurring international
responsibility if its conduct is contrary to international law-treatment of the second
State's nationals contrary to the international minimum standard or general human
rights standards, for example, and especially the rules on the use of force (Brownlie,
1982, p 209). If it were to be otherwise and we regarded recognition as determinative
of status, we should reach the uncomfortable conclusion that an entity may be a
State for some States (the ones which recognize it) but not for others, with the result
that their mutual rights and duties might be different, even on fundamental
questions. In fact, the occasions of some States not recognizing another entity
which appears to satisfy the criteria of statehood are relatively rare-the continued
attitude of not recognizing the State of Israel by a few Arab States is something of
an anomaly.
E. STATEHOOD AS PERSONALITY-WHAT IT TAKES TO BE A STATE
1. States as facts
Professor Crawford (1979, P 4) tells us:
A State is not a fact in the sense that a chair is a fact; it is a fact in the sense in which a treaty
may be said to be a fact: that is, a legal status attaching to a certain state of affairs by virtue of
certain rules.
This statement comes from the beginning of Crawford's book, The Creation of States
in International Law. Crawford's purpose is to establish that statehood is a concept
regulated by international law and not a mere matter of fact. However, while statehood
is not a mere matter of fact, it is essentially a matter of fact-the legal qualities which
make an entity a State are principally matters of fact, from which a legal conclusion is
drawn-an entity like this is a State.
The first edition of Hall's International Law was published in 1880. It began
(p 13):
Primarily international law governs the relations of such of the communities of independent
states as voluntarily subject themselves to it ... The marks of an independent State are, that
the community constituting it is permanently established for a political end, that it possesses
a defined territory, and that it is independent of external control.
Hall's work was one of a number written around this time which reflected the
positivist nature of international law, in its essentials, a characteristic which has
survived since. Hall's language remained unchanged in the last (8th) edition of
1928 (p 17). It was closely followed by what is the most usually quoted definition
of 'State' in Hall's International Law, the one provided in Article 1 of the Montevideo
Convention (Convention on the Rights and Duties of States 1933) which reads:
STATES AND RECOGNITION IN INTERNATIONAL LAW 221
The State as a person of international law should possess the following qualifications:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with other States.
2. The legal criteria of statehood
It has become common practice to regard this provision of the Montevideo Con-
vention, a regional treaty, as a crystallization of the state of customary international
law and it has exercised great influence on the way in which the legal characteristics
of statehood have been understood since. It has not escaped criticism-Dr Grant
(l999b, p 414) suggests that the predominance of the Montevideo criteria, ' ... may
reflect the lack of a better model rather than the sufficiency of Montevideo itself'-
and it will be necessary to consider whether or not developments in the law have
modified it since 1930". First, though, the characteristics themselves. 18
(aJ Permanent population. There must be some people for there to be a State at all
because States have as their purpose the regulation of human affairs. It might be
convenient in order to prevent other States from seeking to acquire title over empty
areas to give some vacant territory a special international status, such as has been
done for Antarctica (Watts), but the unpopulated area so treated cannot sensibly be
designated a State. It is not necessary that all (or most, even) of the people be nation-
als of the State, though this will usually be the case. The Badinter Commission con-
sidered that individuals had a right to choose their nationality.19 Presence of people
on the territory will ordinarily be the appropriate test but it may be necessary to
identify the people 'really' associated with a territory. Once a State is established,
this will be done by the State's nationality law. However, before a State is created,
the identification of the people properly associated with it may be crucial but prob-
lematic. It has proved to be a particularly exacting exercise in the previous Spanish
colony of Western Sahara. Following the departure of Spain without it having
determined the future political arrangements for the territory, it was occupied,
originally by Morocco and Mauritenia, later just by Morocco, which partitioned the
area and introduced a substantial number of people from Morocco into the territory
over which Morocco claimed sovereignty. The 'real' people of Western Sahara, the
Saharwi, were nomadic, few in number and easily displaced by the Moroccans. They
have, since 1975, through a liberation army, Polisario, waged a liberation war with
very limited success. The United Nations has sought during this whole time a political
solution to the problem which respects the right to self-determination of the Saharwi
people. 20 It has proved an inordinately difficult task to identify just who these people
18 See Grant, 1999b, pp 403-420,434-457; Duursma, 1996, pp 110-132.
19 Badinter Commission, Opinion No 2,11 January 1992 (1992) 3 BJlL 182; 92 ILR 167.
20 Naldi, 1985; SC Res 1394 (27 February 2002), Secretary-General's Report, S/2002/467 (19 April 2002).
222 COLIN WARBRICK
are. A State may determine, within the limits of international law, who its people are
by a combination of its nationality and immigration laws but, at the time of creation
of the State, the issue is not quite so easily resolved.
There is no minimum number of people which is necessary for a State to exist. At
one stage, there was discussion about <micro-States', very small entities in terms of
population or territory or both, the suggestion being that they constitute a discrete
category of international person, but the project was abandoned. No satisfactory
benchmark for population could have been settled. Even then, these small entities
would have been regarded as a sub-set of States rather than being consigned to some
wholly distinct category (Duursma, 1996, pp 133-142).
(b) Territory. Just as a State needs some people, so it needs some territory. States
establish title to territory according to the rules of international law, an important
category of which in this context is the rules which govern succession to title. Given
that there are now few, if any, significant areas of territory not under the sovereignty
of an established State or subject to an international regime, a new State must demon-
strate its title through the claims of a previous sovereign. The law on the use of force
precludes States from taking the territory of other States to create a new one. Reliance
on the doctrine of uti possidetis has a practical appeal in producing relative certainty
into what could be a fraught process of determining future boundaries. Once the
States are established within such boundaries, it is up to them whether or not to
negotiate more convenient ones. Boundary disputes are not uncommon in inter-
national relations and States need not demonstrate the absolute determinacy of
their claimed territory-as the International Court of Justice said in the North Sea
Continental Shelf cases, <... there is ... no rule that the land frontiers of a State must
be fully delimited and defined'.21 The most familiar example is the uncertainty of the
boundaries of Israel at the time it became a State. Those States which refused at that
time to acknowledge its status did not do so on grounds of its vague borders but on its
lack of a legal claim even to the core areas of its territory. Claims that territory ought
to be under a different sovereign are not sufficient to give rise to statehood until the
claims are realized-the claim of a Kurdish State in areas of the territories of Iraq,
Turkey, Syria, Russia, and Iran remains just that, a claim. However, the implementa-
tion of any claim may be a drawn-out process, rather than an instantaneous event,
so that statehood might be attained before the whole of the claim is made good. As
indicated above, the question of the small size of territory featured in the debates
about micro-States and, once again, the issue was settled in favour of accepting a full
claim to statehood by even the smallest States (Duursma, 1996, p 117).
(c) Government. The criterion of <government' in the Montevideo Convention is
usually accompanied in commentaries by a requirement that the government be
<effective' (Crawford, 1979, pp 42-47). This is a reflection of a Weberian view of the
State, where the public authorities have the monopoly of legitimate force within
21 North Sea Continental Shelf, Judgment, IC} Reports 1969, p 3, para 46.
STATES AND RECOGNITION IN INTERNATIONAL LAW 223
the territory. What is at stake is the actual exercise of public power over the people
and within the territory of the State. It is still possible to regard this as a matter of
fact, even if one intractable of assessment, the more so since it is a relative concept,
<effective enough', not an absolute one. It is often suggested that the control exercised
must be sufficient to guarantee the rights under international law of foreign States,
protection of aliens and their property, and prevention of the use of the territory
contrary to the interests of other States.
These tests are not without their utility and their relevance to international status
is obvious but the duties of States here are qualified to0 22 and similar difficulties of
assessment arise. The core of the idea is the preservation of public order and there
seems to have been some dilution of the demands for effectiveness in this regard as
the law of self-determination has developed. Where, given the wishes of the people,
the process of self-determination is to culminate in statehood, the basic delineation of
any new State, its people, and territory are known. If there are deficiencies in the
actual degree of control exercised by the government, then they might be put right.
What is not an option, given the impact of the self-determination principle, is the
creation of a different sovereignty in the territory or placing the people and territory
under another sovereignty, so that in one sense, the only option is the bolstering of
the indigenous government: it must become or be made to be effective. 23 The position
is best illustrated by the events following the departure of the colonial State, Belgium,
from the territory of what became the new State of the Republic of Congo (as it was
then known, now the Democratic Republic of Congo). Belgium had made little
attempt to induct a successor administration and a serious breakdown of public order
followed almost immediately on its retreat, exacerbated by divisions within the new
government about the respective powers of the President and Prime Minister. Even
before Congo was admitted to the United Nations but immediately upon its
independence, the Security Council acting under Chapter VII, authorized the
Secretary-General:
to take the necessary steps, in consultation with the government of the Republic of the
Congo, to provide the Government with such military assistance as may be necessary, until,
through the efforts of the Congolese Government with the technical assistance of the United
Nations, the national security forces may be able, in the opinion of the Government, to meet
fully their tasks . . .24
The Secretary-General established ONUC, the activities of which eventually allowed
the decision to be made that the government could discharge its responsibilities
and the peace-keeping force to be disbanded in 1964. Crawford (1979, pp 43-44)
posits three possible explanations for these events:
22 Corfu Channel, Merits, Judgment, IC} Reports 1949, p 4 at p 22.
23 See, eg, Sierra Leone, 1998-2001: SC Res 1436 (24 September 2002), 16th Report of the Secretary-
General on Sierra Leone, S/2002/1417 (2 December 2002).
24 SC Res 143 (17 July 1960).
224 COLIN WARBRICK
(a) that, in the absence of a government, the Congo was not a State (and any
recognition of it would have been premature);
(b) that it was recognized as a State even though it was not one, such that the
recognitions were constitutive of its statehood;
(c) that the requirement of an effective government is, in some contexts at least,
less stringent than had been thought.
Crawford preferred the final version. It reflected the impact of a legal element in the
concept of statehood, that new States were to be created in accordance with the law
on self-determination, which had both a negative aspect-States were not lawfully
created in violation of the self-determination standard-and a positive one-where
States were created in compliance with the standard, their status was preserved even if
the effectiveness of the government fell below the previously established expectation.
The practice at the independence by consensual arrangement between the colonial
State and the representatives of the soon-to-be new State showed little concern for
questions of effectiveness. In general, the new States were welcomed by representatives
of other States at a ceremony marking the transition and these new States were
quickly admitted to the United Nations. So pervasive did the process become that it
has been suggested that practice had called into being a new creature, the (juridical
State' ,25 which gives weight to Crawford's claim of the legal nature of statehood,
though it does not, of itself, compel a choice between Crawford's options (b) and (c).
We shall return to its consequences but one of them is that a State may continue
even in the complete absence of a government-for example, Somalia, 1991-200l.
Events in Yugoslavia pointed to a paradox about the standard for effective govern-
ment arising from the tension between the external and internal aspects of self-
determination. If it be the case that in some circumstances, the right of internal
self-determination calls for some form of autonomous status for people within part
of the territory of a State, the creation of such an arrangement may make it harder for
the central authorities to maintain the effectiveness of government over the whole of
its territory. Where effectiveness of government depends upon cooperation between
the centre and the autonomous components, the withdrawal of cooperation may
lead to disintegration of the State (Duursma, 1996, p 119).
If relatively ineffective governments could be tolerated without implicating the
status of the State, the opposite question also arises-are all effective governments,
whatever their characteristics, however they come to power, permissible to establish or
maintain statehood. The first answer comes directly from the same consideration of
self-determination. A government of an entity established in violation of self-
determination rules was not capable of being the government of a new State. In 1965,
the white-minority, settler administration in the British colony of Southern Rhodesia
declared itself the government of a new State of Rhodesia. The action was unconsti-
tutional in United Kingdom law but that would not of itself have been sufficient to
25 See Section G below.
STATES AND RECOGNITION IN INTERNATIONAL LAW 225
deny Rhodesia its status in international law. While maintaining its title to Southern
Rhodesia, the British government declared that it would not use force to assert its
authority there, rather suggesting that the undoubtedly effective rebel regime could
look forward to some permanency to its control. However, action was taken by the
Security Council, amongst which was a mandatory resolution, Resolution 217, calling
on all States:
not to recognize or entertain any diplomatic or other relations with this illegal authority.26
The illegality stemmed from two aspects of the law of self-determination, one
reinforcing the other-the claim to independence had been established without
the consent of the people of the territory as a whole and the actual government
(authority) had a racially discriminatory basis. Writing at the time, Professor Fawcett
suggested that this resolution and the fact of compliance with it by States indicated
that satisfaction of the self-determination standard had become a criterion of state-
hood. There was in law no State to be recognized or with which to have diplomatic
relations (Fawcett, 1965-66, pp 112-113). The contention is not conclusive: recogniz-
ing Southern Rhodesia would have contributed to continuing a situation which
the Security Council had determined constituted a threat to international peace and
security. It does not follow that every denial of self-determination would have that
effect. If the violation of the principle of self-determination were simply an ordinary
breach of international law, then recognition might amount to· a waiver of any
right to complain about it. The difficulty here is that the injured party was the people
of Rhodesia as a whole: its rights could not be waived by other States. Perhaps only
if the rule of self-determination is regarded as a peremptory norm of international
law would it be possible to argue that States had a duty independently of the
decision of the Security Council not to recognize a State created in violation of its
requirements. 27
Crawford (1979, p 122) wrote, (Its [Non-recognition's] value ... is significant
although non-recognition is not per se either a method of enforcement or, in any real
way, a sanction'. This is by no means certain. It will be argued later that these are
precisely the functions of non-recognition, where, in the one case, it is required by the
Security Council or, in the other, it is a legal consequence of certain circumstances,
as distinct from a mere policy decision not to recognize an entity as a State.
Other forms of illegality which might attend the putative creation of States include
reliance on the unlawful use of force. 28 Indeed, it might perhaps be said, of any use of
. f6t.ce, for the circumstances can hardly be imagined in which the exercise of the right
of~lf-defence could authorize one State to establish a new State on the territory
of yet another State. If the permanent transfer of territory is not compatible with
the use of force, even in self-defence, it is likewise with the creation of a State. So, even
26 SC Res 217 (20 November 1965).
27 See International Law Commission, Articles on State Responsibility, 2001, Articles 40 and 41.
28 Declaration of Principles ofInternational Law Concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the UN, GA Res 2625 (XXV) (24 October 1970), Principle 1.

226 COLIN WARBRICK
if the Turkish intervention in Cyprus in 1974 was lawful under the Zurich Accords,
it does not necessarily follow that the creation of the Turkish Republic of Northern
Cyprus was also a lawful act. Nor, surely, would it have made any difference in legal
terms if Iraq, following its invasion of Kuwait, had purported to create a new State
rather than, as it did, incorporate the territory of Kuwait into its national territory.
The Security Council called upon States not to recognize this transaction29 (Reso-
lution 661) and it would, doubtless, have called upon States not to recognize any State,
had it been Iraq's policy-to create one. The arguments about non-recognition are the
same as for violations of the self-determination principle. The one case which might
appear to give difficulties with applying the use of force rule in the rigid way suggested
is the creation of the State of Bangladesh on the territory of east Pakistan in 1971.
The Indian armed intervention was partly justified as being in support of self-
determination and, later, the status of Bangladesh as a State was recognized by
Pakistan, by now a State with reduced territory but with the same identity.
Whether the attempt to create the State is in defiance of the law of self-
determination or of the law on the use of force, the question then arises as to the
status of the entity/territory to which the non-recognition policy/obligation applies.
Where there was a State, its personality continues. It was never suggested that the State
of Kuwait disappeared at any time during its occupation by Iraq. Where there was
no State, it is not the legal consequence of non-recognition of the putative State that
an alternative State is created. In Southern Rhodesia, no State appeared until the self-
determination principle was satisfied and the United Kingdom relinquished its title in
favour of the new State of Zimbabwe in 1979. In East Timor, the illegal incorporation
of the Portuguese colony into Indonesia did not mean that a State was created in the
territory. It remained under the authority of Portugal as the administering power
of a non-self-governing territory, eventually the self-determination standard being
vindicated with the creation of the State of Timor-Leste in 2002 (Drew, 2001). Most
revealing is the position in the old mandate territory of South West Africa. Once
it was determined that the continued presence of South Africa there was unlawful,
it was also understood that the people of the territory were entitled to self-
determination. A liberation movement, SWAPO, was acknowledged by the OAU and
the United Nations established a subsidiary organ, the Council of Namibia (as the
territory had by then become known), to administer the territory and exercise the
rights of the Namibian people until self-determination were achieved. The Council
was never admitted to the territory of Namibia but it did exercise certain extra- .
territorial rights on the people's behalf (Herman, 1975). Eventually, after elections
under the supervision of the United Nations, an independent State was established in
the territory of Namibia, under that name, in 1990.
It is maintained from time to time that there are qualities beyond effectiveness that
a government must have in order for it to be legitimate, of which the most prominent
one is the claim that it must be democratic. First, the mere fact that the government
29 SC Res 661 (6 August 1990)_
STATES AND RECOGNITION IN INTERNATIONAL LAW
227
comes to power in a domestically unconstitutional way is not, of itself, a b~r to its
status as the government of the State. States in general did not regard the Pmochet
government in Chile, which came to power by military coup against ar:elected
government, as not being the government of Chile, still less did they consIde.r ~at
there were any consequences for the status of Chile as a State. There are two distmct
issues to be addressed. First, is an undemocratic government necessarily unlawful?
The strongest argument in this respect is Professor Franck's claim that there is a
human right to democratic government, so that there will inevitably be ~ breach of
international human rights law (quite what will depend upon the preclse human
rights obligations of the State) (Franck, 1992). Even if this argument is accepted, it by
no means follows that the status of the government is legally suspect, rather than there
being breaches of the St~te's human rights obligations. However, there have bee~
instances where States have reacted to the coming to power of a non-democratIC
government or the refusal of a defeated party to leave office following elec~i?ns by the
exercise of unilateral initiatives. The most controversial was the use of milItary force
in Panama by the United States, after the exclusion from power of President Endara
by a military group headed by General Noriega. The military authority was displaced
following military intervention by the United States and the elected government
enabled to assume office (Roth, 1999, pp 310-318). The dispute here is about the
legitimacy of the use of force (Henkin, 1991; Sofaer, 1991). When the United Sta:es
later intervened again, this time in Haiti, it was with the authority of the SecurIty
Council to secure the assumption to power by the elected President Aristide over
the obstruction of the previous military regime (Roth, 1999, pp 363-387). States and
international organizations have adopted various hostile stances towards re~imes
characterized as undemocratic. A recent example is the reactions to the re-electIon of
'\... President Mugabe of Zimbabwe after elections determined as unde~ocratic b~ inter-
"-national observers3o (Commonwealth Report). An American offiCIal has saId that
the United States does not consider Mugabe to be 'the democratically elected leader of
his country'.31 This is short of saying he is not the leader and his govern~ent is notthe
government. The European Union has imposed a travel ban as .a sanctIOns measure
against Mugabe and some of his government ministers but, agam, they do not ~eny
the status of the ministers and exceptions to the bans have been made preCIsely
to comply with international law requirements to allow government members and
officials to enter the territories of EU States.
- Professor Roth (1999, ch 5) suggests that 'popular sovereignty', as an element in
government legitimacy, is not a recent innovation in international law but, even if it
has been modified by post-Charter developments, it still does not possess that deg~ee
of certainty and, therefore, the prospect of ascertaining compliance or not, whICh
would render it a criterion of the lawfulness of government. Instead, he accepts the
30 Commonwealth Secretariat, Zimbabwe Presidential Election, 9-11 March 2002, Report of the
Commonwealth Observer Group, 2002.
31 Guardian, 7 November 2002, P 21.

228 COLIN WARBRICK
presumption of effectiveness tout court, a presumption which may be overturned
only by compelling circumstances which demonstrate that the government really does
not reflect the popular will, such as the retention of power by a defeated party,
subsequent to a fair election. He asserts a strong principle of non-intervention, which
is supported by recognition practice accommodating the government in power.
Roth's affirmation of the priority of effectiveness is endorsed by Professor Murphy,
though in different terms. Murphy is concerned with recognition rather than status
but he concludes that there is no rule of international law which precludes recognition
on grounds of the undemocratic nature of the political arrangements in a State or the
way in which a government had assumed power. Instead, the nature of the regime is
one of a number of factors which influences the discretionary recognition decision
and goes to the establishing of relations rather than status (Murphy, 1999). The
dangers of manipulation of an inchoate 'democracy' test cut both ways-it enables
too easily an authority without real popular support to claim a democratic mandate
on the basis of an inadequate election and it allows outside States to dispute the
credentials of an effective government by pointing to deficiencies in the way it came
to power (Marks, 1997). The inconsistency of the reactions of some governments to
the situation in Venezuela, where the elected government is under challenge from
groups within Venezuela, is an indication of how malleable the notion of democratic
legitimacy can be. 32
The final situation to be considered is where there is no government at all in what
was undoubtedly a State. Does the absence of the government call into question the
continued existence of the State? Such occasions are rare. After the flight of President
Siad Barre from Somalia in 1991, Somalia remained without a government until 2001
(and, even after that date, the effectiveness of the formal government was far from
apparent). However, there was no suggestion that Somalia ceased to be a State. It
remained a member of the United Nations. States conducted themselves on the basis
that there would eventually be a government of Somalia. 33 The presumption of the
continuity of States is an aspect of the law of self-determination (Duursma, 1996,
p 119) - if the people of this territory properly determined that they wished to live in
an independent State, it is hard to see how, in the absence of a further consultation,
any other territorial arrangement or source of government authority would be com-
patible with the principle. Matters just have to wait on the creation oian effective,
national government. This is the position, too, where a legitimate government is
driven from power by external force. If it is able to do so, that government may
constitute itself abroad as a government-in-exile; there will, of course, be an effective
authority in its territory, the occupying power. Eventually, events may turn out
that the displaced government can return. It does so to the continuing or revived
State from which it had been expelled. That was the position of the long-exiled
32 British Foreign Office statements, 12, 14 April 2002; statement of President of Mexico, 12 April 2002,
statement of UN Secretary-General, 15 April 2002.
33 Republic of Somalia v Woodhouse Drake & Carey Suisse SA [1993J QB 54; 94 ILR 608.
STATES AND RECOGNITION IN INTERNATIONAL LAW 229
governments of the Baltic States, driven out in 1940 but returning to Estonia, Latvia,
and Lithuania in 1991 as the break-up of the Soviet Union took hold.
(d) Capacity to enter into international relations. While the assessment of the effecti:-e-
ness and possibly the legality of governments is a taxing question, the ~r~ble~ w:th
the fourth element on the Montevideo list of criteria of statehood IS Identifying
exactly what it means. In one sense, the capacity of any entity to enter into relat~ons
with another is dependent upon the reciprocal willingness of each to have dealmgs
with the other. To interpret the fourth criterion in this way is to import a role for
recognition as a pre-condition for relations which was not. intended and:or to elevate
what one State might regard as dealings with a de facto entity not a State mto an ac: of
recognition contrary to its intentions. So, the British governmen~ has h~d a :ran.ety
of contacts with the authorities in Northern Cyprus but would reSIst any lill~hcatIOn
of recognition that was sought to be drawn from them. 34 It might then .be p~sIted that
any effective government would have the material capacity to enter mto mter-sta~e
relations, even if it could not demand of any other State that it respon~, ~ut thIS
would be to collapse criteria (c) and (d). Instead, the capacity referred to mdlCates a
legal authority to do so-legal independence which pe~mits the government to ~ake
the arrangements it wishes with foreign States and to give effect to them domestICally
where that is necessary. Indeed, for Professor James, the constitutional autonomy of a
State is the central element of statehood (James, 1986), a view which gains s~me
support from the practice of the Badinter Commission. 35 So, however stro~g IS a
member state of a federal or devolved arrangement, it will not have the domestiC legal
authority to enter into international relations at large (Bernier, 1973, c~ 1), although
some states in federations do have a limited capacity to do so. Legal mdepende~ce
rather than political independence has to be the test for the same reason that SIze
limits of population or territory were abandoned-the identification and assessment
of any benchmark of political independence required (few ,States are wholly
independent in this sense) is unattainable. With respect to Ge.rmany, for .so long as
the post-war Four Power agreement between the occupying.pow:rs, the Umted States,
the Soviet Union, France, and the United Kingdom, remamed m place, the west~rn
States took the view that the Soviet Union had no legal power to allow the creation
of a State in its zone of occupation. The Soviet Union maintained that East Germany
was there an independent State. Besides the legal objection, the western States ~so
objected to lack of political independence of the government of East German~, whl~h
was regarded as under practical Soviet control. After the 1973 Accords WhICh dIS-
solved the post-war arrangement for the government of Germany, there was no legal
objection to the creation of East Germany as a Stat~. Its legal pos~tion h~d cha~~ed,
whereas it is doubtful if there had been any significant alteratIOn of ItS polItical
relations with the Soviet Union. Nonetheless, the western States, including West
34 For the explanation of UK practice, see UKMIL (1996) 68 BYIL 714-715.
35 Badinter Commission, Opinion No 11 (16 July 1993), 96 ILR 718.
 230 COLIN WARBRICK
Germany, which had been so hostile to it only days before, were willing to accept the
status of East Germany as a State, once the legal obstacle to its formal independence
had been removed. - line cases but it should not be imagined that questions of statehood are part of the
The concept of legal independence does not necessarily mean plenary consti-
tutional authority for the time being. Constitutions of States may impose substantive
limitations on the conduct of international relations 36 or prescribe procedures for
37
their conduct. What is required is that, if a State wishes to pursue a particular line in
its international relations and if the right constitutional steps were taken to amend
the constitution, it would be able to do so-that no other State would be in the legal
position of gainsaying its project.
3. The legal criteria-who decides?
Once the criteria of statehood have been identified, another issue arises. Who is to
determine that they are, in a particular instance, satisfied? Of course, first the claim
has to be made by an entity that it both is and wishes to be regarded as a State. There
are few instances where an entity which might plausibly claim statehood has not done
so-the case of Taiwan is the only current example. Usually, the question arises in
the opposite form-the claim is made but is not substantiated. The assertion of state-
hood by Rhodesia in 1965 or by the Turkish Republic of Northern Cyprus in 1979 are
examples. The claims of successful secession by Biafra and by Somaliland are others.
The position with regard to this question of international law is no different to
any other-the initial determination is_ to be made by each State individually, in
good faith. Where a State and the entity claiming statehood differ, there will be a
dispute between them which they are obliged to settle peacefully. There is, of course,
an additional complication in statehood disputes-the State denying the claim of the
entity is denying that the rules of international law apply between them, so recourse
to the mechanisms for dispute-settlement will rarely be available, because the State
which denies the status of the other entity would have to concede its case before a
matter came before an international tribunal with jurisdiction over 'States'. The
authority of the Badinter Commission was unique.
The general unavailability of dispute-settlement mechanisms for statehood
questions has its consequences because there are difficulties in the application of
the general criteria of statehood to specific cases. First, the factual elements themselves
are not absolutely objective in their content-matters such as effectiveness are capable
of different but genuine appreciation between different States. More seriously, as
Professor Brownlie (1998, p 70), points out, none of the criteria appears to be per-
emptory, so that a State or States may continue to regard an entity as a State even
though one (or even more) of the criteria, even within a margin of appreciation, are
not satisfied. Nonetheless, these exceptional cases should not detract from the core
36 See, eg, the limitation on the deployment of the armed forces in the German Constitution, Articles
24(2),59(2), 87(a).
37 See, eg, the requirement of referendum for EU Treaty amendment, in the Constitution of the Republic
ofIreland, Article 29.4.
STATES AND RECOGNITION IN INTERNATIONAL LAW 231
content of the criteria. It is the lawyer's business to be concerned with the border-
day-to-day business of States. In general, whether or not the criteria are satisfied
is quite clear. It is another thing entirely if, that being the case, other States wish
to recognize a State expressly or to have diplomatic relations with it. Anomalous
situations can persist for years. The uncertainties about the status of Taiwan go
back fifty years, about Northern Cyprus for twenty years but States have been able
to fashion ad hoc techniques to accommodate them outside the orthodoxies of
inter-State relations.
F. THE RIGHTS AND DUTIES OF STATES-WHAT IT MEANS
TO BE A STATE
1. Status and rights
Establishing the criteria of statehood is only part of the exercise. What are the legal
consequences of being a State-for any State and for all States? What are the rights
and duties, the powers and immunities that attach to an entity simply because it is
a State? When States were regarded as the sole subjects of international law, then
collapsing the two questions, 'what does it take to be a State?' and 'what does it mean
to be a State?' did no harm. So, it was possible to have said correctly that States
enjoyed the plentitude of rights and duties in international law. The deVelopment of
rules which create other categories of international person means that this is no
longer the case. So, the right to self-determination of a colonial people is not a right of
States; the international criminal liability of even a high State official is not matched
by equivalent crirninalliability of his State. Crawford (1979, p 32) lists five 'exclusive
and general legal characteristics' of States:
(1) States have pl~narycompetence to perform acts in the internatio~ sphere-
make treaties and so on.
(2) States are exclusively competent with respect to their internal affairs-
'exclusive' means plenary and not subject to control by other States.
(3) States are not subject to international process without their consent.
(4) States are regarded in international law as 'equal', it is a formal, not a moral or
political, principle.
(5) States are entitled to benefit from the Lotus presumption, especially that any
derogation from the previous principles must be clearly established.
These principles embrace the power of States to make, modify, or terminate inter-
national legal rules according to the processes of international law (1); they encap-
sulate the basic idea of the State as an independent entity, entitled to pursue its
own projects (2) and of the international system as a pluralist arrangement which
acknowledges that independence (2); they enunciate the strong presumption that any
 232 COLIN WARBRICK
modification of or derogation from these principles is to be made, even in accordance
with the processes in (1) requires the consent or acquiescence of the State (5); they
reinforce the legal independence of each State by protecting its decisions from com-
pulsory process, particularly binding 'legislative' or judicial processes (which includes
immunity from proceedings in domestic courts of other States) without the State's
consent (3); and they establish the formal equality of States, which, among other
things, means that all States stand in the same relation to these principles (4). One
might add to them, that States have the power (but not the right) to establish
diplomatic relations with other States.
The specific rights and duties of any identified State will be determined by the way
it has used these principles in its relations with other States and other international
persons. To give an account of all these for every State is to give an account of
international law as a whole. Crawford says further, ' ... statehood does not involve
any necessary substantive rights', but some of Crawford's basic principles have been
adopted (and modified) as rules of international law-such as the rule on the
sovereignty and equality of States by Article 2(1) of the Charter-and, though this
is not expressly one of Crawford's principles, the development of the law of State
immunity. The International Law Commission did prepare a Draft Declaration on
the Rights and Duties of States, though, ultimately, the General Assembly did not
proceed further with the proposal. 38 Later, in 1970, the General Assembly did adopt
unanimously Resolution 2625, Declaration on the Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations (Lowe and Warbrick, 1994). It would not be too
extravagant to describe these principles, despite their source, as the basic substantive
principles of international law governing relations between States, though again, one
might want to add the law on diplomatic relations, as well as the laws of treaties and
of State responsibility.
G. THE (JURIDICAL' STATE
The 'juridical' State is a term coined by Professors Jackson and Rosberg. They drew on
the post-independence experience in Africa,
. .. there have been times when Angola, Chad, Ethiopia, Nigeria, Sudan, Uganda and
Zaire have ceased to be States in the empirical sense-that is, their central governments
lost control of important areas in their jurisdiction during struggles with rival political
organisations (Jackson and Rosberg, 1982, pI).
In empirical terms, these entities had ceased to be States or, perhaps, had never
even been States at all. Yet none of them was destroyed or even changed-neither by
disintegration nor absorption. The writers say that the 'juridical State' is not just a
lawyer's construction but an international lawyer's idea. It is a concept of the State in
38 Report of the International Law Commission, First Session, UN Doc N925, pp 8-9.
STATES AND RECOGNITION IN INTERNATIONAL LAW 233
international legal society. 'International society', they say, 'provides legal protection
for member States from any powers, internal or external, that seek to intervene in,
invade, encroach upon, or otherwise assault their sovereignty' (p 13). In a later
work, Jackson picked out the importance of the decision to adopt the ex-colonial
boundaries as the delimitation of the territories of the newly independent States in
Africa, and its endorsement by the OAU as a foundational principle of African state-
hood in 1964 (Jackson, 1990). Since then, the boundaries of African States have hardly
been altered. 39 The pressures for secession on ethnic grounds have been strong but
even in the case where the traditional attributes of statehood seem most thoroughly
complied with, the case of Somaliland within Somalia, there has been no inclination
of other States to accept it as a new State. The authors might have gone on to note
that, for legal purposes, the status of the new States was unquestioned, save for
particular political disputes such as the one about Western Sahara. These 'juridical
States' had identifiable governments who sent and received diplomatic representatives
to and from other States, who' were members of the UN and other international
organizations and who took part in multilateral treaty negotiations and became par-
ties to a range of treaties. They were players in the international legal and political
systems. One would add that African States have been among the most active litigants
at the International Court of Justice. That the African examples are the strongest ones
in favour of a juridical idea of statehood is partly due to their empirical limitations,
we notice the difference more, but it is also a demonstration of the influence of the
principle of self-determination on the notion of statehood. Crawford's thesis that
statehood is ultimately a matter governed by law rather than mere fact is supported
by the incorporation of a legal qualification-States may not lawfully be created
in violation of the law of self-determination-but affects the other, material criteria
of traditional statehood-the people of the State (at least at the time of its creation)
are the people of the self-determination unit. That territory is defined by the principle
of uti possidetis, the old colonial boundaries, whether international or internal.
The effectiveness test for governments is diluted where they are governments of
States created in the exercise of the right of self-determination. And States have
declined to enter into inter-State relations with entities which were created in contra-
diction of the principle-Southern Rhodesia, the South African homelands, Biafra,
and Somaliland-however similar these entities seem to States. Legal statehood is not
only a valuable status, it is a persistent one, once obtained.
Jackson built on the original idea of the juridical State in his book Quasi-States:
Sovereignty, International Relations and the Third World. Jackson distinguished
between positive and negative sovereignty. Positive sovereignty is the power of States
to take real action, it is a substantive quality, whereas negative sovereignty is the
right to be let alone, to be free from outside interference. This negative sovereignty
is the 'legal foundation upon which a society of independent and formally equal
39 There were minor amendments in isolated cases, eg, Cameroon, and there is the significant exception of
Eritrea becoming an independent State, seceding from Ethiopia by consent in 1993.
 COLIN WARBRICK
234
States rests' (Jackson, 1990, p 27). Jackson's thesis is developed brilliantly in its legal
context by Gerald Kreijen. Kreijen takes Crawford's position about the legal character
of statehood a step further. He writes:
... the expansion of international society was paralleled by a transformation of the notion
of independence from an inherently material concept based on internal sovereignty to a
mere formal legal condition primarily depending on external recognition (Kreijen, 2002,
p 92).
It is these last few words which make the difference. Recognition becomes an element
in statehood because reliance on purely material considerations would lead to the
conclusion that a number of entities were not States after all. A 'juridical State' cannot
prove that it is a State by appealing to the facts: accordingly, there has to be some other
way of establishing its personality. In terms of the categories set out earlier, this is an
instance of a mechanism for resolving a controversial application of the legal criteria
of statehood. Just.as in municipal law, a comatose pvs patient may be regarded as 'still'
a person, so a 'juridical State' may be regarded as legally a State. In the absence of
compulsory dispute-settlement, the acts of recognition are items of evidence that
other States have applied the legal test and found it satisfied. Kreijen says that 'the
period of decolonization is to be distinguished from previous stages of international
society by the proliferation of very weak States. It has brought about, in his view, a
system change:
[This] novel, universal order of sovereign States entailed that, contrary to the European
experience, State-building did not precede but followed recognition of statehood (Kreijen,
2002, p 100).
Kreijen draws from this formal condition of many insubstantial States, lacking
positive sovereignty, an entitlement to the means of obtaining it- 'Byway of necessity
this entitles a right to development' (p 101). This fails to take into account that the
international system is still a rough old world. Whatever the normative moral force
of this conclusion, work still needs to be done to turn it into a legal right. Whether
it is seen as charity or calculated discretion, the practice of providing development
aid lacks the support of an opinio juris that would confirm a right to development.
There are, in any event, conceptual difficulties in imagining quite what such a right
would look like-the 'obvious danger to the developing States is that the price of aid,
technical assistance, access to markets, and so on, would be versions of conditionality
which are so often blamed for making the plight of States worse rather than better and
which, not to put too fine a point on it, looks like a new variety of colonialism
(Gordon, 1997). The States do not get the means of exercising positive sovereignty
(making their own choices) but of fulfilling more effectively the choices of the donors.
Nonetheless, there is extensive work going on to elaborate the content and con-
sequences of a right to development. Its completion would be one more step towards
a community conception of statehood (Sengupta, 2002, pp 852-857).
It is against this background of the juridical State that a new term has entered
STATES AND RECOGNITION IN INTERNATIONAL LAW 235
international political discourse-it is the notion of the 'failed State' (Helman
and Ratner, 1992-93). At its greatest extreme, there is in the 'failed State' a complete
absence of an effective, single, central government authority over the whole territory
of the State. At the other, there is minimal order, perhaps confined to the capital,
where other contenders for power and purely private groups compete for the
allegiance of the people and control of resources. An example of the first was Somalia
from 1991 to 2001; of the second, Sierra Leone from 1997. Despite Kreijen's claim that
there is an international law obligation on rich States to assist the development
of weak States, a rather more realistic conclusion would have been that developed
States took action to support the governments of 'juridical States' when they deemed
it in their interest to ,do so. During the Cold War, they often did so. But rather less than
benign neglect has been the general pattern.
Until recently, one would have signed off at this point. States showed little sign
of building other States, even if such missions, could have been lawfully pursued.
Two kinds of events suggest that total scepticism about the possibility is excessive.
States, sometimes on their own, sometimes in collaboration with the UN or regional
organizations, have found themselves engaged in State-building in specific cases,
sometimes by design, sometimes adventitiously. The UN was involved in the
reconstruction of government in Cambodia. The United Kingdom in conjunction
with the UN is trying the same task in cooperation with the government of
Sierra Leone. These were undertakings embarked upon in full knowledge of what
the enterprise would require. More complex structures have been put in place to
create a State in Bosnia and Herzegovina (,Bosnia'), following the Dayton Accords,
the upforeseen consequence of the decision to recognize Bosnia as a State when, in
traditional terms, it clearly was not one (see below on recognition). Here, the UN
and NATO and individual States have been the actors involved, not to mention legions
of NGOs. The first two (Cambodia and Sierra Leone) were failed States, the third
(Bosnia) had never been a State at all, at least in recent times. These interventions
have not been entirely without self-interest but they have also been inspired by
humanitarian impulses and the need to respond to political conditions which the
developed States played some part in creating. The other reason for engaging in State-
building is less altruistic or the result of chance. It is an exercise in self-interest and
it is deliberate. After the events of '11 th September', strong States have appreciated
the danger to their interests from the possibilities opened to terrorists in failed States
as training grounds, planning headquarters, and sanctuaries. Afghanistan where
Bin Laden had trained his men and planned his operations was deemed to be a failed
State.40 Failed 'government' might be a better term and the burden of government-
building will fall on other States. Identifying 'failing' States has become a bit of a
political preoccupation41 to try to limit both the consequences of a government's
40For a prescient article, see Khalilzad and Byrnan, 2000.
41See the speech of the UK Foreign Secretary, Jack Straw, 'Failed and Failing States', 6 September 2002 at
www.fco.gov.uk (speeches).
 COLIN WARBRICK
incapacity to pre-empt the use of its territory by groups with anti-social international
agendas-terrorists, drug-traffickers, and so and, in the event of the government
failing altogether, the costs of <State building'.
H. CONCLUSION
Statehood is the fundamental unit of legal personality in the international legal
system. It is a legal category, though the law has, until recently, consisted of largely
factual elements-population, territory, and effective and independent government.
Two related developments in international law have caused the need for reappraisal of
the established position. The incorporation of a law of external self-determination
into international law has had the effect of impugning the legality of entities created
in contradiction of its terms, however much such entities might appear to satisfy the
traditional tests of being a State, and it has diluted the requirement of effectiveness
of government necessary to comply with the established criterion in cases where the
demands of self-determination have been met. This latter modification has been
possible because of the toleration of existing States. Now, though, the consequences
of legal statehood without the material underpinnings have emerged, those States
affected by the incapacity of a government to exercise authority in its territory have
begun to consider a wholly new process within the international system, the
building of States from the outside, by other States or by international organizations.
At present, an ad hoc and, unproven enterprise, if State-building or, indeed, State-
maintaining become consolidated within the international legal system, there might
be the first stirrings of an international legal community of States. Whether or not
such a development is likely as a matter of international law, we shall postpone. In
the meantime, though, it is necessary to examine another feature of the traditional
order, the institution of recognition and its part in the management of the
international State system.
II. RECOGNITION
A. INTRODUCTION
There are two general points which link the two sections on statehood and
recognition. First, the discussion on statehood has proceeded on the basis that, in
general, recognition is not a legal criterion of statehood. Secondly, where the content
of the actual criteria of statehood, centrally, the effectiveness of the government, have
been prised away from the factual· reality of the situation, recognition becomes
important as evidence that the claim to statehood is indeed good in international
law, since, in the nature of the case, the entity claiming statehood would not be able to
rely on the actual state of affairs to justify its claim; and, to the contrary, where it is
STATES AND RECOGNITION IN INTERNATIONAL LAW 237
maintained that, despite the facts apparently supporting a good claim to statehood,
there are legal reasons why the claim should not be sustained in this case, non-
recognition, both as a sanction and as a bar to the transformation of the unlawful
situation into a legal one, has an important role to play, though one different from
recognition or a decision not to recognize.
Professor Brownlie (1982) begins and ends an important article on recognition
by .castigating the commentators, both, so it seems, for making the concept of
<recognition' too simple (by postulating a single, overall theoretical explanation
for the meaning and practice of recognition) and for making the application
of recognition doctrine, even when properly appreciated, too facile (by narrowing
the context in which an assessment of the legal consequences of recognition
practice must be calculated). The theoretical controversy will be dealt with later.
As far as the practice goes, unless lawyers are to surrender the whole field to
political expediency and the idiosyncrasies of the single instance, some general
account must be provided, even if a warning is to be attached about the limits of any
legal rules in a field where the large body of practice has been driven as often by
politics as by law.
The scathing tone of Brownlie's critique of the writing on recognition is not
uniqueY Why recognition engenders such passions is not easy to explain. It is a
difficult subject43 -though not exceptionally so-for a variety of reasons. First, it is
a practice with a wide variety of contexts-recognition of States and recognition of .
governments; recognition for international purposes, recognition for domestic law;
recognition as an act of discretion, and recognition under legal constraint. Secondly,
despite this, attempts have been made to produce a single, overarching theory
which will encompass all aspects of recognition practice; these two theories-the
'constitutive' theory and the 'declaratory' theory, neither compatible with the other
and neither capable of dealing with all the circumstances in which recognition
decisions arise, with the result that adherence to one or the other is apt to mislead
in the borderline case. Thirdly, recognition has a substantial discretionary element
to it, allowing considerable space for recourse to political considerations to affect
recognition decisions. Fourthly, recognition has both international and domestic
aspects, the relation between them depending upon constitutional considerations
of each national legal order. Fifthly, and most important, too often the treatment of
recognition sees it as an either/or decision, which (a) fails to take into account the
variety of situations possible which fall within a 'not recognizing' decision and (b)
does not distinguish 'not recognizing' (essentially a matter of status) from 'non-
recognition' (a matter of sanction or State responsibility).
42 The review by Professor Kunz (1950) of Professor Lauterpacht's famous book, Recognition in Inter-
national Law (1947) has, some claim, to be the most hostile ever about a serious work by a serious scholar.
43 Approaching recognition with all its complexities, international lawyers are uniquely assisted by the
extensive bibliography provided by Dr Stephan Talmon, a quite indispensable tool on any aspect of
the subject (Talmon, 2000).
 COLIN WARBRICK
B. THE TINOCO ARBITRATION
As for the correct way to handle recognition decisions, Brownlie places considerable
reliance on the award of the arbitrator, Chief Justice Taft, in the Tinoco Arbitration. 44
Tinoco had taken power unconstitutionally in Costa Rica. His government had
entered into concession agreements with British oil companies and had raised loans
with a British bank. During his period of de facto control, the British government did
not recognize his government as the government of Costa Rica. Tinoco himself was
soon displaced. The old order was eventually restored and among its acts were the
repudiation of the concessions and of the debts. The British government recognized
the new government and sought from it compensation for the losses suffered by its
nationals. The answer of the Costa Rican government was that the losses were due
to the acts on an illegal authority, not recognized by the British government, which
was estopped from arguing that the actions of a usurper could bind the State. The
arbitrator examined carefully what precisely was the intention of the policy of
not recognizing Tinoco's government (this was, it bears emphasizing, an instance of
recognition of governments and not one of States). He concluded that the British
policy was not based on any perception that the Tinoco regime was not the govern-
ment of Costa Rica but on grounds that the British government wished no relations
with it. The evidence was sufficient for the arbitrator to reach the conclusion that the
regime was the government of Costa Rica. Accordingly, it was capable of binding the
State. Neither its domestic unconstitutionality nor the remedial measures taken by
Tinoco's successors had any impact on the putative ascription of State responsibility.
The case is a strong authority for the priority of the actual facts of a situation over
those of national law in determining international status and of the legal conclusion
drawn from those facts to prevail over the recognition policy of another State, at least
where the policy was followed for the reasons asserted by the UK. The virtue of
the award, Brownlie says (1982, p 200), is its particularity-what matters was what the
facts were and what the UK intended.
C. LEGAL NATURE, LEGAL CONSEQUENCES OF THE
RECOGNITION DECISION
Despite Brownlie's warning about the danger of generalization, I shall offer some, at
least so far as the decision to recognize goes. In international law, recognition is not
an institution restricted to the position of States and governments (Schwarzenberger,
1965, pp 229-261) but the decisions do have some special characteristics when taken
in these contexts. The ILC Rapporteur on 'Unilateral Acts' (of which recognition is
one category) adopts the description of Combaceau and Sur (1999, p 281):
recognition [in general] produces specific legal consequences ... [It] does not confer rights
on the author [State], but rather imposes obligations; through recognition ... the State
44 Tinoco Arbitration (1923) 1 RIAA 369.
STATES AND RECOGNITION IN INTERNATIONAL LAW 239
declares that it considers a situation to exist, and it cannot subsequently state otherwise;
whether or not it exists from an objective point of view, the situation will henceforth be
enforceable with respect to that State if it was not already SO.45
But, the Rapporteur later says:
... when an entity is recognised as having the condition or status of a State, the author State
assumes some obligations that are related to the very nature of the State and that arise from
international law. Yet the question might be asked whether the obligation corresponding to
the State in accordance with international law may be imposed on the recognised entity. The
answer to this depends on the nature of the recognition of States. If the thesis that the act of
recognition is merely declarative and not constitutive is accepted (and we share this point
of view), it can be said that such obligations do not arise from that act of recognition but
from its very existence as a State46 (para 64).
The two statements of the Rapporteur show the two legal features of recognition of
States and government in international law. Recognition is a unilateral act of a State
and one that has international legal consequences. While its unilateral character
means that a State has discretion whether to act or not and, in making its decision, the
State may take into account purely political considerations, this does not mean that
its discretionary power is unfettered: a State may not use any discretionary power
contrary to the rights of other States. The power might be limited by treaty but in
general law, the restrictions arise in two, not wholly distinct ways. To recognize on
part of the territory of an established State another State-say Quebec in Canada
or Scotland in the United Kingdom-would be an act of unlawful intervention. To
recognize as a State a rebel group fighting to establish statehood, while the existing
sovereign is still trying to exert its authority is also an unlawful intervention, some-
times called 'premature' recognition of which the most prominent historical example
is the recognition (and more) of the rebel regime in British North America by
France during the course of the war of independence (Oppenheim, p 113). While the
development of the law of colonial self-determination did diminish the impact of
claims of premature recognition, it remains of importance, often under the more
general rubric of non-intervention, where the entity 'prematurely' recognized has no
self-determination claim to support it. A contrast can be drawn between the treat-
ment of the progress to independence of Guinea-Bissau, which had been recognized
as a State by more than eighty other States before Portuguese control over the entire
territory had' been terminated and before Portugal recognized its independence
(Crawford, 1979, pp 260-261) and the reaction of States to the attempted secession
of the province of Biafra from Nigeria, following independence. Although five States
did recognize Biafra, the vast majority of States did not and some provided the
Federal government with considerable assistance during the civil war in whiCh the
central authorities eventually prevailed (Ijalaye, 1971). The difference between the two
45 Rodriguez-Cedeno, V, Unilateral Acts of States, Fifth Report to International Law Commission, AlCNA/
525, para 18.
46 Ibid, para 64.
240 COLIN WARBRICK
situations was that the ultimate, legally required outcome of the struggle in Guinea-
Bissau was going to be independence-Portugal's title, politically, if not legally, had
a contingent quality to it. Where self-determination is not at stake but secession
simplicter, international law has nothing to say about the outcome of any conflict.
Biafra had no entitlement to leave Nigeria and form a State. Nigeria was entitled to use
force to maintain its territorial integrity. The States assisting it took the view that the
federal government's hold on power never became sufficiently precarious to require
them to abstain from helping the government maintain its authority. Crawford
(1979, p 262) conceded that the position in the 1970s was not 'clear or particularly
satisfactory' but he did allow that 'self-determination will operate to legitimise
recognition that would otherwise be premature'.
While recognition is a discretionary prerogative and, therefore, a State is not subject
to a duty to recognize another State, if a State recognizes an entity as a State, that act
has legal consequences. The recognizing State accepts that relations between them
are governed by international law on a State/State basis. The recognized State can
rely on that declaration-but more, the recognition decision serves as a legal
ratchet - the State recognizing a situation or condition may not lawfully resile from
the position that it has taken unless the facts with regard to which it acted have
changed (Lauterpacht, 1947, pp 349-355). Accordingly, if, in the exercise of its dis-
cretion State A recognises entity X as a State, that State may not change its position
vis-a.-vis State X unless the facts change in such a way that X is no longer a State, when
State A would be entitled to deal with X in its new guise. It will frequently be the case
that if recognition is withdrawn because the circumstances have fundamentally
changed, there will be a new State or government in place of the previous one and
recognition of it or the creation of new relations may be the signal of the withdrawal
of recognition. However, the two situations are not necessarily connected, so that the
withdrawal of recognition may not be accompanied by a new act of recognition.
Where it is not, there will, of course, be something of a hiatus in the relations between
the not recognizing State and the other entity (Warbrick, 1981). While recognition
implies certain substantive legal relations, it does not necessarily imply any particular
diplomatic relations. The fact that the decision to recognize a State and the establish-
ment of diplomatic relations are often simultaneous and even dealt with in the same
act (sometimes called 'diplomatic recognition') should not confuse the position.
Recognition is discretionary; establishing diplomatic relations is also discretionary;
so, even after one State has recognized another, it does not follow that there must
be diplomatic relations or that they should be at any particular level or, once having
been established, they may not be modified or terminated. In the normal case, there
will be no reason why the establishment of relations should not be coincident with
recognition. However, the manipulation and termination of formal links is a normal
diplomatic sanction-applying it does not go to status (Newsom, 1990). During
the apartheid regime in South Africa, Commonwealth States frequently suspended
diplomatic links with the United Kingdom, because of British government policy
towards South Africa. These States did not intend to implicate the status of the
STATES AND RECOGNITION IN INTERNATIONAL LAW 241
UK, merely to draw attention to the seriousness of their political objections to British
policy.47
A revealing example of the separate nature of the status and relations aspects of a
recognition decision is provided by the situation involving Guatemala and Belize.
Belize had previously been the British colony of British Honduras, to the territory
of which Guatemala asserted title, which had been given constitutional status
domestically in Guatemala. After Belize became independent and clearly possessed
in fact the requirements to be a State, Guatemala amended its constitution and its
government recognized Belize as a State. Belize granted Guatemala certain rights of
maritime access at the time of recognition. Guatemala also established diplomatic
relations at ambassadorial level with Belize. Both the decision to recognize and the
decision to establish relations were challenged in the Guatemalan Constitutional
Court. 48 The court noted that the act of recognition was necessary if there were to
be any relations at all between the two States. That following its independence in
1981, Belize was a State, was evidenced by its recognition as such by other States.
Guatemala's act of recognition did not concede the territorial dispute but was a
necessary first step to resolving it. The mechanism for resolving it was through
diplomatic relations. The dispute has been prolonged but at the end of 2002, a solu-
tion had been arrived at which was to be put to national referenda in each State. The
national court analysed the effects of recognition and the setting up of diplomatic
relations correctly in terms of international law and its careful judgment opened the
possibility of reaching a solution that was not there before recognition but opponents
of the Guatemalan government were right to this extent: once it had recognized
Belize as a State, it was no longer open to Guatemala to maintain its previous position,
that it was the lawful sovereign to the whole of the territory of Belize. The relations
between Guatemala and Belize, following recognition, are an illustration of the other
legal consequence of Guatemala's decision-their relations henceforth are governed
by international law; each is entitled, as against the other, to the fundamental rights
of a State and subject to the equivalent duties-in this instance, the duty to settle
disputes peacefully and not to resort to force.
The distinction between status and relations is crucial. Ignoring it is one of the
chief obstacles to providing a coherent account of recognition practice (Talmon, 1998,
pp 21-43).
D. RECOGNIZING, NOT RECOGNIZING, NON-RECOGNITION
The practice shows that the international legal nature of the recognition decision is
clear, though more complex than might at first appear: not so the decision not to
47 The United Arab Emirates, one of only three States to have recognized the Taliban as the government of
Afghanistan, terminated diplomatic relations with the Taliban after the events of '11th September' (Arabic
News, www.arabic.news.com 24 September 2001).
48 Belize case (1992), 100 ILR 305.
242 COLIN WARBRICK
recognize. Here, matters are less clear and even more complex. Take the statement,
'We (State A) do not recognize entity X as a State'. There are several possible meanings
(Warbrick, 1997, pp 10-11):
(1) We take no decision, one way or the other, about recognizing X [in A's eyes, X
mayor may not be a State];
(2) We have chosen not to recognize X (although we could do) for political reasons
not related to X's status [by implication, A does consider X to be a State];
(3) We do not recognize X because it would be unlawful/premature for us to do so
[A does not regard X as legally a State];
(4) We do not recognize X, although it might (appear to) be a State, because there
are customary law obligations or specific treaty obligations which prohibit us
from doing so;
(5) We do not recognize X, although it might (appear to) be a State, because there
is a specific obligation imposed by the Security Council not to do so.
Obligations under (4) and (5) may overlap, that is, the Security Council might call for
an entity not to be recognized when States may not do so lawfully anyway. What is
important to appreciate is that these last categories of decision are quite different from
the first three. These, orthodox, 'not recognizing' decisions belong to the laws of
status and State discretion. The last two are (largely) part of the law of responsibility.
They reflect a legal consequence of an unlawful act-that it is a nullity-and they are
a countermeasure-they are attempts to prevent an illegal situation continuing or,
even worse, being consolidated into a lawful one by acts of recognition, including
situations where recognition by the apparently legally entitled State amounts to
waiver of its rights, such as Portugal's eventual recognition of India's title to Goa,
following India's armed intervention there. The decisions of States not to recognize a
factually established situation of grounds of its illegality might profitably be called
'non-recognition' decisions and the use of that term so confined. I do not pretend
that usage supports this view, hence the inverted commas, but it is the way they will
be employed in this chapter. Firstly, unlike 'recognizing', 'not recognizing' covers a
variety of possible meanings (1-3) and secondly, any 'not recognizing' decision must
be distinguished from a 'non-recognition' decision. The failure to identify precisely
what is intended by a decision 'not to recognize' or of 'non-recognition' is one of
the reasons for Brownlie's dissatisfaction with the legal literature on recognition.
The precision with which the arbitrator identified into which of categories (1) to
(3) the British policy of 'not recognizing' Tinoco's government (category 2) is one
of the reasons for his approbation of the award.
E. RECOGNITION OF GOVERNMENTS
A decision to recognize a State will almost inevitably involve recognizing a govern-
ment because of the requirement that there be an effective government as a condition
STATES AND RECOGNITION IN INTERNATIONAL LAW· 243
of statehood. The decision will ordinarily be communicated to the government of the
State and, where diplomatic relations are established at the same time as recognition,
those relations will be with an identified government. It might appear a reasonable
assumption that the law and practice on the recognition of governments would be
much like that on recognition of States but it turns out that there are several signifi-
cant differences. There is no need for a new act of recognition of a government each
time one comes to power by constitutional means. Dealings are with the State,
Ambassadors are accredited to the State, inter-State and inter-governmental relations
go on as usual. There may be no objection to a State demonstrating its support for
a regime which has come to power through constitutional process-there may be
congratulations to and welcome for the first government to come to power after the
restoration of democratic elections, for instance-but that would be an act of political
discretion. While there are some instances of measures being taken against identified,
individual members of the government of a State by way of sanctions, even in these
cases, the authority of the government has not been called into question. 49
Despite this limitation, the first difference between the recognition of States and
governments is that the occasions for taking a decision about governments occur with
far greater frequency than do those about States: governments change many times in
the life of a State. The occasions for recognition of governments arise in a variety of
situations, the most usual being the unconstitutional assumption of power by a group
within the State, say by a military COUp50 or by the armed triumph of a rebel group.51
Changes of power like this are sometimes swift and conclusive, leaving no scope
for questioning the effectiveness and the permanence of the new regime. Others are
long-drawn-out with doubts remaining about the stability of the usurper's controL
Low-level conflict may persist for years. There is what Professor Reisman (1990,
p 871) has called 'the mystical survival of a monarchical right' oflegitimate sovereign
power for 'whichever warlord seizes and holds the presidential palace ... ', an
emphasis on the control of the capital and the formal institutions of government,
which might allow dealings with foreign States but disguise an absence of authority
in the areas outside the city limits. Here, there is a need for some reaction from
third States. Their diplomats require instructions about whom they should deal with
and on what terms; foreign nationals want advice about the legitimacy of action
which interferes with their interests; there will be questions arising about who is
entitled to occupy the State's embassies overseas and have access to its bank accounts
there; matters of representation in international organizations will soon arise. In some
cases, the third-State government will have a simple question -does it regard the only
feasible authority as the government? In others, it will be faced with a choice, does it
regard authority A or authority B as the government (or neither of them)? This is the
49 See, eg, SC Res 1343 (7 March 2001) concerning Liberiq.
50 eg, the military coups of Pinochet in Chile or of Musharaf in Pakistan (for which see Murphy, 2000,
pp 354-356).
51 Such as the Tutsis in Rwanda.
244 COLIN WARBRICK
second major difference between recognition of States and recognition of govern-
ments-the possibility of two (or more) authorities for a single State. Sometimes
attempts are made to accommodate the position by recognizing one as the govern-
ment de jure and the other as the government de facto, but the terms are confusing
and not used consistently (Talmon, 1998, pp 59-107). There is not the same legal
apparatus available to structure these decisions as there is for statehood. The easiest
option is to turn the question into one purely of fact-is any authority in effective
control of an overwhelming portion of the territory of the State with some prospect
of remaining so, regardless of how it came to 'power? Where a legitimate (or
previously recognized government) has been driven from power, a third State might
be prepared to give it some benefit of the doubt in terms of its prospects of regaining
control, assigning only some temporising status to the rebels, according to the circum-
stances if and until they were able finally to vanquish all vestiges of authority of
the old government. While it still continued to recognize governments, the British
government put weight on the prospective permanency of any authority when
making its recognition decisions. 52 Then, the third State could make the decision to
recognize the new authorities, always remembering that the decision remained an act
of discretion and that there was no obligation to commit itself. The recognition of two
authorities as governments of the same State may go so far as continuing to recognize
an authority which has been entirely displaced from its territory as a government-in-
exile (such recognition might be described as de jure), while recognizing the factual
basis for the intra-territorial government de facto. There are other possibilities-
where a government is driven out by the forces of another State, they will be regarded
as the belligerent occupier, their authority subject to international humanitarian law
and, if the use of force were unlawful, there will be obligations of non-recognition of
the installed regime. 53 Different considerations will apply where there has been for-
eign intervention by force, either in support of a government or in support of rebels,
(see Roth, pp 284-319).
Third States may not be indifferent to the outcome of internal struggles for
power and, since the recognition/not recognizing decision may have a role to play in
influencing the pattern of events, seek to use it for their own purposes. Here there are
similarities between recognizing States and recognizing governments-the third State
must be aware of the restrictions the principle of non-intervention places on its
discretion. First, even the line between the constitutional and non-constitutional
assumption of power may not be entirely clear. Should a third State take it upon
itself to make what might be a highly controversial question of national law, with
the corollary that, if it decides the new regime does not have a constitutional founda-
tion, then it (the third State) is entitled to recognize (or not recognize) this new
authority. States must use their judgment cautiously. It would, for instance, usually be
52 Hansard, HC, vol 485, cols 2410-2411 (1951).
53 See, eg, SC Res 661 (6 August 1990) and 662 (9 August 1990) concerning Iraqi authorities in Kuwait;
also Kuwait Airways Corp v Iraqi Airways Co (No 3) [2002] 3 All ER 209 at 216-219.
STATES AND RECOGNITION IN INTERNATIONAL LAW 245
unacceptable to maintain a view adverse to the internal legitimacy of a new govern-
ment in the face of a favourable judgment of an independent court in that State-
whatever reservations a foreign government might have entertained about the fairness
of the conduct of the US Presidential election in Florida in 2001, they would have had
to have been suppressed after the decision of the Supreme Court in Bush v Gore. 54
Where the third State is satisfied that the new situation is one calling for it to make
a decision, again its reaction might have an effect on events within the other State
and, again, considerations of non-intervention will arise. An act of recognition of a
new government would sometimes help to consolidate its position-that seems to
have been the effect of support for President Kabbah in Sierra Leone. External
affirmation of legitimacy could help in securing domestic acceptance. The govern-
ment would look and be able to act like a government internationally; that could
help secure its position internally. More than that, recognition could be presented
for the domestic audience as endorsement, of approval. However strenuously the
third State might stress that its decision to recognize a government was politically
neutral, it could have no control over the way the decision was manipulated by
the other government. Where that government was unpopular in the third State,
that might have embarrassing or distasteful consequences: how, for instance, the
new regime treated its predecessors (whom it might regard as traitorous holders of
public power, deserving of the most stringent punishment), how it treated foreign
interests in its territory, including those of the third State (it might have come to
power precisely on the back of popular resentment about foreign influences in
the country), what its foreign policy might be (hostility to the aims of those of the
third State being a possibility). That governments might try to avoid these drawbacks
by finding another way of meeting the practical questions they faced could be
anticipated.
And this brings us to the third significant difference between recognition of States
and recognition of governments-the adoption of policies of neither recognizing nor
not recognizing governments at all. The sensitivities which attend external scrutiny of
the central question oflegitimate, internal authority within a State hardly need setting
out. In 1930, the government of Mexico announced55 that it was abandoning the
practice of recognizing governments, since it [the government]:
considers that such a course is an insulting practice and one which, in addition, to the fact
that it offends the sovereignty of other nations, implies that judgement of some sort may be
passed upon the internal affairs of those nations by other governments.
The Mexican government proposed to maintain or withdraw its diplomatic repre-
sentatives as it deemed fit. In his comment on this 'Estrada Doctrine' (named after
Mexico's foreign minister) Lauterpacht (1947, pp 156-157) wrote of the necessity for
recognition of governments and said that, even in its own terms, the proposal was
54 Bush v Gore, 121 S Ct 525 (2000).
55 (1931) 25 AlIL Supp 203.
 COLIN WARBRICK
incoherent because in cases of revolutionary assumptions of power, there may be
more than one authority contending for governmental status. Accordingly, even by
taking no action, the foreign power to a degree exercised an influence on matters it
was the very purpose of the doctrine to avoid. Although not widely followed, some
States took the view that relations following a revolution need not be the subject of
express decision (Talmon, 1998, pp 3-14). Prompted by the announcement of a
change in policy by the British government in 1980,56 other States have adopted in
substance, if not in name, versions of the Estrada Doctrine. The British government's
decision to abandon the recognition of governments was not based on the same high-
minded considerations as the Estrada Doctrine. The reasons were political-the need
to avoid the embarrassment of seeming to approve by the recognition decision
governments which had come to power by unconstitutional means and which some-
times exacted highly unpleasant vengeance on its predecessors and the need to be able
to follow a policy not at odds with States in the EC as the foreign-policy dimensions
of the Union became more prominent (Talmon, British Practice, pp 241-243). The
British government had taken an exceptional pro-active stance in its previous recogni-
tion practice, recognizing right away governments which, in its view, had achieved
established and effective control over the territory of the other State. The new policy
was simply to have such relations with the new government as the circumstances
demanded, the British government's position to be derived from the nature of the
dealings. While the government was not prepared to say either that it did or that it
did not recognize the foreign authority, it has been willing to say that its relations are
not inter-governmental, for example its relations with the Taliban. 57 This, of course,
permits contacts with more than one group, without any necessary implications being
able to be drawn by either faction as against the other as the British government's
view of its legitimacy. In its careful nuances, it makes Brownlie's warnings of the need
to take the whole context into account even more apposite. However, it is not a policy
which is sustainable in every situation. The British government has not been able to
forgo recognition of government statements completely. Talmon (1999) gives several
instances of circumstances where they might be required. Confirming the continued
authority of a government over the whole of its territory in the face of de facto
secession is one example, as in Cyprus, where the British government said that it
continued 'to recognize' the authority of the government of Cyprus over the whole
of the territory of the State. 58 Another example is where the government is driven
into exile in circumstances where the British government wishes to continue to
support its authority, notably where armed force has been used against it. The
government continued to recognize the government of Kuwait after its displacement
in the face of the Iraqi invasion to exile in Saudi Arabia. 59 It made a similar statement
56 Hansard, HC, vol 408, col 1211 (1980).
57 UKMIL (2001) 72 BYIL 578.
58 UKMIL (1996) 67 BYIL 712-715.
59 UKMIL (1997) 68 BYIL 519.
STATES AND RECOGNITION IN INTERNATIONAL LAW 247
of support for President Kabbah of Sierra Leone after he had been temporarily driven
from the country in 1998.60
Partly because of the political advantages of the recognition power, partly because
the recognition decision with respect to a government, especially where there are
competing authorities, has the advantage of creating certainty in what might other-
wise be confused conditions, the continuation of a policy of recognizing governments
has had some strong support (Peterson, 1983). Relying on 'dealings' has advantages
for the no-longer-recognizing State but at the expense of a lack of clarity about the
position which might have consequences for its nationals, who may want to know
with whom they are dealing, eg, to establish identity-which is the 'government' to
which I should pay an admitted debt? will this authority with which I seek to deal have
possible claims of immunity? These questions will often fall for decision to municipal
courts-indeed, one reason why a State might not exercise its power to recognize a
foreign State or government would be to deny that entity certain capacities in its (the
not recognizing State's) domestic law, as a form of pressure. It is to the municipal law
consequences of recognition that we now briefly turn.
F. INTERNATIONAL AND DOMESTIC LEGAL CONSEQUENCES 61
What effect recognition decisions have in domestic law depends upon national law
and practice varies widely; this is in addition to the variations between States as to
their recognition policies. It is not proposed to give an account of this practice.
However, it is necessary to explain how the issue might arise and why certain solutions
have international repercussions. Foreign States and governments are legal persons in
international law and in their own national laws but they will not necessarily have the
right to be regarded as persons or to have any specific rights in the local law (Marston,
1997). Usually, they will be accorded such status and, where there are recognition
and diplomatic relations, it is hard to see how it could be avoided. The foreign State
will need to hold property rights in its embassy, its government to maintain bank
accounts, to raise loans in capital markets, and so on. They will also want to be able to
take legal action to protect their rights. Recognition is one of the tests which national
systems apply to determine whether or not any particular State or government is a
person in its national law and has the capacity to bring actions in its courts. Not
having these powers can place" an entity at a considerable disadvantage (and its
nationals may find similar drawbacks, too), so the attraction of 'not recognizing'
a foreign entity as a means of sanction is apparent. It is also a significant feature in
the usefulness beyond mere symbolic condemnation of international obligations of
'non-recognition'.62
60 UKMIL (1998) 69 BYIL 477-478; Talmon, 1999, p 499.
61 See generally Sh"aw, 1997, pp 318-330.
62 eg, Gur Corporation v Trust Bank ofAfrica [1986] 3 All ER 449, concerning Ciskei.
 COLIN WARBRICK
On the other hand, if the entity is made the defendant in a legal action in a foreign
court, it may very well argue that its entitlement to immunity in international law
should not be dependent upon any act of the local State but on whether or not it has
the appropriate status according to international law-is it a State or the government
of a State?63
Finally, the local courts might find themselves directed by their own conflict of
laws rules to take cognisance of or apply the law of some foreign State (O'Connell,
1970, ch 6). Again, recognition may be used by national law as the indicator of
which law that means, especially where there are competing authorities claiming to
have the constitutional capacity to make law for a particular territory. Here, the 'not
recognizing' or 'non-recognition' policy may lead a national court not to take notice
of the law of an effective authority. Since the acts of the authority may affect private
affairs, there is a risk of injustice to persons whose activities fall under the effective
but 'unrecognizable' (so far as the foreign court is concerned) law of the territory
where an action took place-whether a person married there is lawfully married for
the purposes of the foreign court, whether a debt incurred there may be enforced
, against assets in the foreign jurisdiction, say. Domestic laws find a variety of ways
of mitigating personal injustice where to do so would not undermine the 'not
recognizing'/'non-recognition' policy (Greig, 1967) and there are indications that
international law is developing equivalent regimes where the 'non-recognition'
decision is an obligation under internationallaw. 64 Just as States can find ways of
conducting relations with entities they do not recognize where practical con-
siderations so dictate, without the implication of recognition being a consequence
of the relations, so courts have found the means to minimize superfluous effects
of not recognizing and non-recognition decisions on private persons without the
implication of recognition (Talmon, 2001).
What one can say is that the domestic legal consequences of any recognition
decision may be part of the political calculation made when a government is deciding
how to exercise its discretionary power.
G. THE DECLARATORY/CONSTITUTIVE DEBATE
The under-developed condition of international law compared with the sophistication
of many national legal orders means that theoretical explanations for the structure of
legal rules and institutions in international law is often elusive. The imperatives of the
particular instance can overwhelm the demands of doctrine. This is why Brownlie,
with his focus on practical examples, is so exasperated by the theoretical debate about
the nature of recognition. It is easy to sympathize. The outlines of the contest are
63 eg, Wulfsohnv RSFSR, 138 NE 24 (NY) (1923).
64 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (270), Advisory Opinion, ICf Reports 1971, p 16,
paras 117-123.
STATES AND RECOGNITION IN INTERNATIONAL LAW 249
sketched here but it is conceded that the practice is not amenable completely to
one explanation or the other, though each points to certain pragmatic conclusions
which, ironically, may commend it to practitioners who otherwise resist grand
theory (Grant, 1999a, ch 1). The two approaches' to recognition go under the titles
'Declaratory' and 'Constitutive' theories. There are variations on each but the core of
them can be simply explained (Crawford, 1979, pp 16-25). The Declaratory theory
distinguishes between statehood as a matter of legal personality with objectivecharac-
teristics and recognition as a discretionary exercise of the power of an individual
State. If statehood is to be lawfully recognized, there must be a State satisfying the
legal criteria of statehood to be recognized. Where there is uncertainty or dispute
about the legal status of a particular entity, acts of recognition may be evidence in
support of its claim that it is a State but no single act of recognition can determine
this question conclusively. Equally, one can say that if the status of a government is
to be lawfully recognized, the authority must be effective in fact or benefit from one
of the legal explanations set out above as to why it might have the status of govern-
ment, notwithstanding its ineffectiveness. Because we are in the realm of law, even a
State adhering to the declaratory theory would have to take account of any legal
barriers against recognizing a State or government, such as a binding decision of the
Security Council, whatever view otherwise it took of the facts. The declaratory view
is helpful in explaining what is one general feature of recognition practice, viz. that the
effects of an act of recognition will be retrospective to the time when the State was
properly created or the government established its effectiveness (Lauterpacht, 1947,
pp 59-61).
The constitutive view of recognition is that it is the act of recognition which
establishes the legal existence of the recognized entity, in each case only with respect
to the recognizing State. Because the recognition decision is legally confined, it is still
necessary for the recognizing State to determine that its decision would be lawful
but, if it does take that view and does recognize the entity, then its act is not only
evidentiary about the facts upon which the entity's claim to statehood is based but
constitutive of that status.
The advantage of a declaratory analysis is that the crucial status of being a State has
an objective character to it-a State for one State is a State for all States. If it is not, say
the TRNC, which is a State recognized only by Turkey, then the recognition is an
illegal act. The declaratory theory has a systemic advantage and appeal. However, the
application of the objective standards which make a State and of the legal conditions
which might serve as a disqualification is not easy. States may, in good faith, ,take
different views about the effectiveness of a government or the legality of the creation
of a State. De facto, partial personality, the supposed defect of the constitutive theory,
may arise, though it is more likely with respect to governments than States.
The practice shows that a single State may follow a version of the declaratory
theory in one field, say, international relations, while having a different approach to
questions arising in its domestic law. UK international practice has been pre-
dominantly declaratory, whereas the courts have developed rules of law which use
 250 COLIN WARBRICK
recognition in an essentially constitutive way, as to standing, immunity, and taking
cognisance of legal acts.
Professor Lauterpacht tried to bring the two approaches to recognition together in
a way that would facilitate the operation of international relations and help secure
compliance with international law. He took the position that the act of recognition
was constitutive as to status-each State should assess a claimant for statehood against
the legal criteria and then, if it were satisfied that the entity were legally a State, there
was a duty to recognize it. Recognition, he said; was <declaratory of facts and con-
stitutive of rights' (Lauterpacht, 1947, p 75). The duty was owed 'to the community'
and Lauterpacht favoured the collectivization of the recognition process, though he
did not pretend that there was such a procedure available when he was writing in
1947. The elegance of Lauterpacht's theory was belied by the untidiness of inter-
national practice and a reluctance of States to let go of the recognition power which
could, in some circumstances, be a useful tool in pursuit of policy. Nonetheless,
Lauterpacht's idea exercised its influence on subsequent writers, if not on the
more recalcitrant politicians, and the search for a collective mechanism by which
personality could be conferred has continued.
H. INTERNATIONAL ORGANIZATIONS-MEMBERSHIP
AND CREDENTIALS
One of the most often cited authorities in support of the constitutive theory of
recognition comes from Oppenheim's treatise, The Law of Nations, the first edition
of which was published in 1905. He wrote (p 110),
It is generally agreed that a new State before its recognition cannot claim any right which a
member of the Family of Nations has towards other members ... There is no doubt that
statehood itself is independent of recognition. International law does not say that a State is
not in existence so long as it is not recognised, but it takes no notice of it before its
recognition. Through recognition only and exclusively a State becomes an International
Person and a subject of International Law.
It will be appreciated that Oppenheim was using statehood in a different way to that
in which it has been used in this chapter, though the difference is not quite as marked
as might at first appear. For Oppenheim, statehood is a factual category only but its
factual parameters are those of the traditional legal concept of statehood described
earlier. Furthermore, he clearly sees the factual requirement of being a State as a
precondition for recognition. Whatever recognition constituted, it did not constitute
the State as such. Oppenheim suggests that by recognition States are constituted
members of international society and that it is in participation in that society
that their legal personality takes effect. It hardly seems likely that a unilateral act of
recognition could have erga omnes effects and, indeed, he goes on (p Ill):
It must be specially mentioned that recognition by one State is not at all binding upon other
States, so that they must follow suit. But in practice such an example, if set by one or more of
STATES AND RECOGNITION IN INTERNATIONAL LAW 25 1
the Great Powers and at a time when the new State is really established on a sound basis, will
make many other States at a later period give recognition too.
Now, Oppenheim was writing at a time of a wholly decentralized international system
but his explanation of recognition as the gateway into the in~ernatio~alle~al system
has retained its attraction as centralized mechanisms have arIsen which rmght make
the proposal feasible. Professor Dugard is one, strong proponent of the institution
of collective recognition through the admission to membership procedures of ~he
United Nations (Dugard, 1987). In practice, entities which are States (and some whICh
are not) and which want to be regarded by other States as States generally make an
immediate application for membership of the UN. That means that all the me~~ers
of the UN (which means practically all other States) are called upon to take a pOSItIon
about the status of an entity applying for membership. Article 4 of the UN Charter
reads:
(1) Membership of the United Nations is open to all other peace-loving States which
accept the obligations contained in the present Charter .an~, in the judgment of the
Organisation, are able and willing to carry out these oblIgatIOns.
(2) The admission of any such State to membership in the United Nations will be
effected by a decision of the General Assembly upon the recommendation of the
Security Council.
Being a State is a condition vel non of being a member of the UN but is n~t a sufficient
condition-the applicant must satisfy the other requirements of ArtIcl~ 4(1) an~
must satisfy requisite majorities in the General Assembly and th: Secun~ :ouncil
that it should be admitted to membership. In the Admissions AdVISOry OpIlllOn, the
Court said that existing members were entitled to take into account only those factors
in Article 4( 1) when casting their vote but that it was for each State individually to
make an assessment of whether or not the applicant was qualified. 65 The judgment
was given at a time of tension between the West and the S~~iet Union, ~s part. of
which, it was suggested, States were being influenced by polItIcal factors III ca~tIllg
their votes, notably whether or not other States friendly to them would be a.dmitted
at the same time. Article 4( 1) itself envisages that there will be States whICh may
not be members of the UN; Article 4(2) allows the possibility that the organs ?f
the UN would reach a decision adverse to a State's application on grounds that dId
not impugn its claim to be a State; and, of course, a State has no obligatio~ to apply to
be a member at all. The result is that, while admission to membershIp may b~ a
confirmation of statehood, non-membership does not necessarily imply that an entIty
is not a State, as for many years was Switzerland until it became a member in 2002.
Even the first phrase is not without its difficulties-the UN had as original. members
at least two entities, the federal States within the Soviet Union of ByelorUSSIa an~ ~e
Ukraine, which did not satisfy the criteria of statehood. Perhaps the only definItIve·
65 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter),
Advisory Opinion, 1948, ICJ Reports 1947-1948, p 45 at p 63.
 252 COLIN WARBRICK
conclusion to be drawn from membership of the UN is that an entity is a State for the
purposes of the Charter. It might be reasonable to draw from a vote in favour of an
application by an existing member that it regarded the applicant as a State (at least, if
it did not say to the contrary). There have been no further anomalies since the
participation of Byelorussia and the Ukraine. The UK takes the view that to vote for
an admission of an applicant is an act of recognition of its status as a State but that is a
unilateral determination, not something implied from the Charter or from practice
(vote for admission of North Korea in 1991).66 The proper analysis is that the vote of a
member on an application (for or against and subject to any explanation given by the
voting State) is evidence of the voting State's position vis-a.-vis the applicant's status
but it is not, unless the voting State says so, an act of recognition.
Is there a concept of 'collective recognition' in international law and, if there is,
what is its relation with unilateral State recognition? The basic proposition that
admission to membership C?f any organization is the exercise of a power of the
member States, and that nothing is added for the applicant, other than the status
of member if the vote is favourable. It is a feature of all international organizations.
The consequences for the members, of course, depend upon the powers of the
organization, so that admission to membership of the UN is more significant legally
as well as politically than, say, to the Council of Europe. Whether an international
organization strictly 'recognizes' non-members rather than simply having dealings
with them would depend on its powers but, unless there were some transfer by the
members of their own recognition powers, it would not seem to be the case that the
decision of the organization would bind a member or otherwise affect the bilateral
relations between a member and the non-member (Talmon, 1997).
However, there are those who see membership of the UN as a generically different
step to membership of other organizations. A radical claim is made by Professor
Hillgruber (1998) in which he sees admission to membership of the UN as providing
the institutional mechanism that was missing when Oppenheim was propounding
his constitutive view of recognition. It is, he says, a process of 'co-optation' of a new
State, the applicant, into the international community (of which the UN is the legal
manifestation):
After the decision has been taken to admit a state to the United Nations, its statehood cannot
be called into question with the effect of contesting the validity of mutual rights and
obligations arising from membership (p 492).
His position is wholly constitutive (and would, therefore, affect more than the rights
and duties deriving from the Charter). 'Non-recognition' is the means of denying
personality to an entity for:
It is only by recognition that the new state acquires the status of a sovereign state under
international law (p 494).
66 UKMIL (1991) 62 BYIL 559.
STATES AND RECOGNITION IN INTERNATIONAL LAW 253
States confer this status on those entities that they deem to have the capacity and
the commitment to respect international law, considerations which, Hillgruber
maintains, 'constitute the central criteria of statehood in terms of international
law' (p 503). He needs to resort to this ambitious reconstruction of the international
legal system and the institution of recognition of States to take into account the
practice arising out of the events in eastern and central European and the Soviet
Union following the political changes of 1989. If Hillgruber's position could be sus-
tained, it would be a significant indication that statehood was being transformed
into a status conferred upon entities by a decision of the 'international community',
rather than deriving from the condition of the entity itself, subject to certain dis-
qualifying legal rules. But it cannot be successfully defended. Hillgruber does not
make the distinction between 'not recognizing' an entity and adopting a policy of
'non-recognition' with respect to it-the denial of status which goes with the latter is
both a legal consequence of a violation of a rule of law and a sanction seeking to
restore legality-the examples he gives, Rhodesia, the South African homelands, and
Northern Cyprus-are all examples of non-recognition properly understood. There
are no cases of 'undesirable' entities being excluded. Just as seriously, his explanation
cannot give a full account for the practice to which he refers, especially with respect to
Yugoslavia (see below). Recognition retains its quality as a unilateral act of a State,
though the experience of the European States after 1989 was that these unilateral acts
might carry more political clout if exercised in a coordinated way. Far from conced-
ing anything to 'the international community', they used such power as they had to
try to influence which entities would become States which then might (and, of course,
usually did) apply for membership of the UN. Critically, Dugard and Hillgruber
collapse status and the creation of relations between States and see recognition as the
instrument for constituting relationships. What was at stake in Yugoslavia was an
attempt at constituting very States by recognition, an experiment which first failed
and which still is not conclusively a success. The activity in Yugoslavia and elsewhere
is an even more radical departtlre than Hillgruber's proposal-it is an exercise in
State-building.
If membership votes are the equivalent to recognition of State decisions, members
of international organizations may face decisions comparable to recognition of
government ones if there is a dispute about who should represent a member of
the organization. These are usually called 'credentials' matters-an organ of the
organization must approve the 'credentials' (the official notification of appointment
by the government of each member). Normally, it will be a formality but where there
are competing authorities, the appropriate body will have to make a decision which
is entitled to accredit representatives to the organization. Roth (1999, p 253) calls this
'collective recognition'. As Roth indicates, by and large, credentials disputes have
been settled by reference to the effective-control test but he acknowledges that the fact
of foreign intervention in support of one or other faction has some influence on
the outcome. Although the test is closely similar to that adopted for recognition, the
functional differences of the two processes are clear-the decision of the organization
 254 COLIN WARBRICK
STATES AND RECOGNITION IN INTERNATIONAL LAW 255

is a collective decision for the purposes of the organization; recognition remains a

Simpson claims a human rights underpinning for the development and refers to
unilateral act with the consequences attached to it for the two States involved.
the protection of the Iraqi Kurds, the secessions from the Soviet Union/Russia, the
The most prominent and long-lasting credentials controversy covered the repre-
secession of Eritrea (perhaps particularly important, given the strong adherence to
sentation of China from 1949 until 1971. The Nationalist government of China was
existing boundaries in Africa), and the dissolution of Yugoslavia. The last instance
driven from the mainland to take refuge in Taiwan in 1949 by Communist forces
bears some investigation because of the weight given to recognition by certain third
which took power over the whole of mainland China. The dispute was entirely a
States against the protests of the Yugoslavia government and because of the legal
political one, with a western-organized majority in the General Assembly favouring
impress put on the whole of the involvement of the European Community States in
the nationalist representatives until 1971; China, of course, is a permanent member
the changes in Yugoslavia. The Socialist Federal Republic of Yugoslavia was a federal
of the Security Council and the credentials decision had its effect on representation
State of six Republics and two autonomous regions. It had a communist government.
there as well. In 1971 a majority of members approved a resolution which recognized
It was a multi-ethnic State, with dominant ethnic majorities in many areas but lacking
the representatives of the government of the People's Republic of China as 'the only
a total coherence between majority areas and territorial congruity. While most areas,
legitimate representatives of China in the United Nations'. 67 Another important
including each of the Republics, did have an ethnic majority, several had significant
episode concerned South Africa. The General Assembly rejected the credentials of the
ethnic enclaves within them. Following the collapse of the strongly centralist regime
representatives of the apartheid government of South Africa in 1974. 68 The preferred
of President Tito after his death and influenced by the pattern of events in central and
course for many of those States supporting the resolution would have been the sus-
eastern Europe after the fall of the Berlin Wall in 1989, separatist movements emerged
pension of South Africa from the UN but a motion to do so was defeated in the
in some of the Republics (Oeter, 2000; Grant, 1999a, ch 6). In 1991, two of them,
Security Council. This shows that the credentials question here was analogous to a
Slovenia and Croatia, declared their independence, moves resisted with force by
'non-recognition' decision-it had elements of sanction on account of the govern-
the federal government. EC member States were initially committed to the unity
ment's policies, rather than being a reflection of its lack of effectiveness (Roth, 1999,
of Yugoslavia and they became involved in the political process for dealing with
pp 234-250,253-284; Ciobanu, 1976). The same question can arise in other organiza-
the situation, with the consent of the federal authorities. Slovenia and Croatia
tions. The Organization of African Unity (now the African Union) has tried to
were motivated by concerns that Yugoslavia would be dominated by Serbia. Other
entrench constitutional legitimacy as the touchstone of the validity of credentials but
Republics, notably Bosnia-Herzegovina (afterwards, 'Bosnia') feared even more
its policy has been criticized precisely because it does not embrace a compulsory
adverse consequences if they were left in a Yugoslavia reduced by the departure of
element of non-recognition. Professor Kufuor (2002, pp 370-371, 389-399)
Slovenia and Croatia and so even more in thrall to a Serbian power with territorial
reluctantly concedes that unconstitutional change of government is 'the African way';
ambitions. Initially, the EC States were looking to a new, less centralized constitution
to adopt too rigid a policy of non-recognition could drive the law and the actual state
of things far apart. for Yugoslavia. To aid the political moves, the EC States established the Badinter
Commission, an arbitral body, to provide advice to the EC's representative for
Yugoslavia. During the autumn of 1991, the assessment of the situation by ~e
1. PRACTICE-THE SOVIET UNION AND YUGOSLAVIA AFTER 1989 EC States began to change. It appeared to them that the disintegration of YugoslaVIa
was inevitable. They sought to exercise some influence on how that process would
It was conceded earlier that the development of the law of self-determination had had
be rrianaged. It was clear that some new States would emerge on the territory of
a .subst~n~ial impact on the content of the criteria of statehood, as well as providing a
Yugoslavia but the precise identification of them in advance was difficult. The EC
dlsquallfymg rule for entities created in violation of it. This was clearly true about
States decided to use the instrument of recognition as one of the means to implement
self-determination as a rule relating to decolonization. The question here is whether
its policy. It was, at the same time faced with reacting to the changes in the Soviet
or not self-determination has a legal character beyond the colonial context. After a
careful analysis, Simpson (1991, p 55) concludes, Union (which ultimately resulted in the emergence of fourteen States from the old
Soviet Federation-three revived Baltic States, Estonia, Latvia, and Lithuania, and
. . . there has been a detectable shift in emphasis away from an absolute, unconditional eleven new States, Ukraine, Belarus, five in Central Asia, and four in the Caucasus) .
right to political sovereignty and territorial integrity ... Recent developments lend some Russia continued as the same, though reduced, State of the Soviet Union but under
crede~ce to the claim that a new, post-colonial right to limited secession [sic, limited right to the new name. On 16 December 1991, the EC Foreign Ministers issued the Declaration
seceSSIOn] may be on the point of crystallising.
on the Guidelines on Recognition o!New States in Eastern Europe and the Soviet
Union. 69 The EC States expressed their readiness to recognize new States 'subject to
67 GA Res 2758 (XXVI) (25 October 1971).
68 GA Res 3206 (XXIX) (30 September 1974).
69 (1992) 31 ILM 1486.
 COLIN WARBRICK
the normal standards of international practice and the political realities in each case'
~~
ha~e constit~te~ themselves on a democratic basis, have accepted the appropriate inter-
natIOnal.o~ligatIOns and have committed themselves in good faith to a peaceful process and
to negotIatIOns.
The Declaration then set out a number of conditions which require respect for the
Charter and a number of non-binding instruments, guarantees for minorities respect
for frontiers, (which can only be changed by peaceful means by common agr~ement'
acceptance of certain arms control agreements, and a commitment to settle b;
agreement all matters of State succession. Finally:
The C~mmunity and its member States will not recognise entities which are the result of
aggreSSIOn. They would take account of the effect of recognition on neighbouring States.
The (normal standards of international practice' are the criteria of statehood
the (political realities' an indication that the EC States might have wanted to tak~
adv~tage o~ the ~iscretiona:y n~ture of the recognition decision, as, indeed, they did.
The mnovatIOn IS the specIficatIOn of all the conditions-these are conditions for
being ~e~ognized by ~e EC States, they are not conditions of statehood. Any act of
recogllltIOn was condItIonal on the entity being a State but any recognition would not
have been co~ditional, in the sense that a failure to comply with the conditions by any
(then recoglllzed) State could have repercussions going to its status.
. The new arr~gements on the territory of the Soviet Union proceeded in a rela-
tIvely uncomplIcated way initially, being conducted on the basis of agreement
between the central authorities and those of the emerging States. The new States
were estab~ished wi.thin the old federal borders and were admitted to the UN (Belarus
an~ UkraI~e contmued their original membership). Russia tolerated no further
claImS to mdependence within its remaining territory. However, there have been
several conflicts within the new States, where separatist claims have been made-over
Na~orno-Ka~abach, an Armenian ethnic enclave in Azerbaijan; concerning the Trans-
Dlllester regIOn, an ~rea 'populated by a predominantly Russian-settler group; in
Moldova; complex claImS m Georgia, and the Chechnya conflict in Russia. The States
have resisted any moves to separation, though have been talks under the auspices of
the UN and the OSCE directed to autonomy. Self-determination in the territorial
sense tha: was ~do~ted for colonies has reinforced the claims to integrity of
the res:utmg terntonal areas of each State. In view of the savagery with which the
separatIst forces hav~ been deal~ with, especially in Chechnya, too much weight should
not be placed on claImS that a nght of internal self-determination contains in the face
of s.ystem~tic -:iolations of human rights and humanitarian law, a right to ~ecede. The
varIOUS SItuatIons have been dealt with, to the extent they have been dealt with at
all, thr?~gh the usu~ inter-St.ate mechanisms for managing threats to the peace and
SU?ervlsmg human nghts oblIgations. Formal statehood has proved resilient. On the
eVIdence of practice touching the territory of the old Soviet Union, one should be
STATES AND RECOGNITION IN INTERNATIONAL LAW 257
, sceptical about detecting any movement towards a right of secessionist self-
determination, even in extremis.
With respect to (Yugoslavia', the EC States introduced another new element-they
proposed a procedure to determine if the conditions for recognition were satisfied.
The EC Declaration on Yugoslavia70 said that the EC States were agreed that they
would recognize (the independence' of all Republics fulfilling certain conditions,
among which were:
(a) that they wished to be recognized as independent States;
(b) that they accepted the commitments in the Guidelines;
Cc) that they accepted minority human rights protection being considered by the
Conference on Yugoslavia;
Cd) that they adopt constitutional and political guarantees ensuring that they had
no territorial claim against an EC State. 71
Each Republic seeking relations with EC States had to apply for recognition. The
applications for recognition were to be submitted to the Badinter Commission
for advice. Six entities did apply-four Republics, Slovenia, Croatia, Bosnia, and
Macedonia, one auto~omous province, Kosovo, and a Serb-enclave in Croatia,
Krajina. The Badinter Commission had already given an opinion which asserted the
orthodoxy-status as a State was a question of fact, recognition was (purely declara-
tory'.72 However, the Commission did go further than the traditional position by
placing emphasis on the right of p~oples to self-determination on the basis-as in the
colonial cases-of existing territorial boundaries (although in this case, internal
federal boundaries were utilized). The units of people so established were entitled to
exercise that right if they wished, and this could extend even as far as independence. 73
Thus it was possible to reject the claims of Kosovo (part of the Republic of Serbia,
despite its overwhelming Kosovar population) and of the Krajina, part of the Republic
of Croatia, despite the cohesiveness of its Serb people, as not being units entitled to
self-determination?4 These people were to find their protection under the minority
law of the new States. Of the remaining applicants, the Commission determined that
Slovenia and Macedonia satisfied the criteria, that Croatia did not have adequate
constitutional protection for its minorities and that there was no clear evidence that
the people of Bosnia wished for independence. In a later Opinion, No 8, the Commis-
sion set the dates by which it deemed the various Republics to have become States: all
the dates preceded the date of recognition, in some cases by many months?5 The
70 (1992) 31 ILM 1486.
71 This was directed to Macedonia, the adoption of that name being objected to by Greece, which viewed it
as indicating claims against areas of Greek territory under the same name.
72 Badinter Commission, Opinion No 1,29 November 1991 (1992) 3 EJIL 182,92 ILR 162.
73 Badinter Commission, Opinion No 3, 11 January 1992 (1992) 3 EJIL 184,92 ILR 170~
74 Badinter Commission, Opinion No 2, 3 January 1992 (1992) 3 EJlL 183, 92 ILR 167.
75 Badinter Commission, Opinion No 8, 4 July 1992 (1993) 4 EJlL 87, 92 ILR 188.

COLIN WARBRICK
political nature of the recognition process, including the Guidelines and Declaration
on Yugoslavia, was immediately demonstrated. Slovenia was a State, had demon-
strated that its people wanted it to be a State, and had satisfied the conditions. 76 It was
recognized. Croatia was a State and its people wanted statehood. It did not satisfy the
criteria77 but was recognized (indeed, had already been recognized by Germany,
indicating the still unilateral, even if coordinated, nature of the recognition deci-
sion)-the criteria for recognition were demonstrably not part of the criteria of
statehood (and were not even regarded by the States which had proclaimed them as
binding upon themselves, as the recognitions of Croatia show). Macedonia was a
State, its people wished for statehood78 but it was not recognized for reasons nothing
to do with its status or the substance of the Declaration-it was a show of solidarity
with Greece about its concerns for its territorial integrity, threatened, so Greece said,
by the use of the name 'Macedonia' as the name of the new State. The protests of
Serbia and Montenegro (the remaining Republics, asserting that they were still
the State of Yugoslavia) were overcome because of the self-determination analysis.
The people of Yugoslavia as a whole were taken to have decided to bring to an end the
SFRY. The situation was then not wholly a domestic one. Other States had an interest.
They used that interest to influence the progress the dissolution took by all means
short of military intervention. It is by no means convincing as a matter of law and is
an argument that ought not to be pressed too hard if it is not to make all federal/
devolved/autonomous arrangements vulnerable to passing political winds (Rich,
1999, pp 47-65).
Even on this analysis Bosnia was a tricky case. Like Croatia, there were doubts about
the effective control of the government of the Republic over the whole of its territory.
It is a nice question whether the Commission simply misapplied the criterion of
effective government or it applied it in the generous way that had become sanctified
by practice in cases of colonial self-determination. What was to distinguish the
Yugoslavian situation from the colonial precedents was that governments and people
in the region did not accept the sanctity of boundaries allegedly settled according
to the uti possidetis doctrine. In particular, the Serbian political aspiration to create
'Great Serbia', an ethnically homogeneous entity embracing all the Serb areas of
Yugoslavia, required the modification of the boundaries of Croatia and Bosnia, while
Serbia's assertion of its continued title to Kosovo, despite the ethnic minority status
of Serbs there, meant that Serbia resisted any changes to its own territory of a kind
it insisted upon and eventually went to war to accomplish, in the other Republics.
Serbian enclaves were established or consolidated in western and eastern Croatia and
in large parts of Bosnia. The savagery of the conflicts is well-documented and its
consequences are still being felt. Ultimately, military gains were made by Croatia to
76 Badinter Commission, Opinion No 7,11 January 1992 (1993) 4 BIlL 74, 92 ILR 188.
77 Badinter C~mmission, Opinion No 5,11 January 1992 (1993) 4 BIlL 76, 92 ILR 178.
78 Badinter Commission, Opinion No 6, 11 January 1992 (1993) 4 BIlL 77,92 ILR 182.
STATES AND RECOGNITION IN INTERNATIONAL LAW 259
assert authority over the whole of its own territory and to drive Bosnian Serbs from
some of the land they had taken in Bosnia. The Bosnian conflict was brought to an
end by the Dayton Accords which, among its elaborate provisions, required the
recognition of Bosnia by Serbia-Montenegro. Bosnia was given an involved internal
structure, which included the establishment of a Bosnian Serb entity as an element
in a federal structure. 79 A juridical State thus existed. Indeed, it had existed for some
time and had been a member of the UN since May 1992. But the danger of the
consolidation of the ethnically homogeneous areas which had been created by the
fighting was anticipated, as was the incapacity of the actual government of Bosnia
to do anything about it. In this case, some States were prepared to take action to
compensate for the lack of internal effectiveness of the government of this State
which they had recognized. The Dayton settlement relied on Security Council
created organs of the UN for the civilian administration of Bosnia and on Security
Council authorized military force (mainly from NATO States) for the maintenance of
security.80 This was an attempt to constitute a State or, in UN parlance, an exercise in
State-building.
There remained Serbia and Montenegro. For a long time, they claimed to be the
continuation of the Socialist Federal Republic of Yugoslavia (and made comparisons
with the position of Soviet Union/Russia; Blum). The Security Council took the view
that Serbia and Montenegro was not entitled to continue the SFRY's membership
of the UN. 81 This followed Badinter Commision Opinion No 9,82 to the effect that
the Federal Republic of Yugoslavia was simply one of five successor States to the SFRY,
which had ceased to exist. Under the name Federal Republic of Yugoslavia, it was
admitted to the UN in 2000.
J. CONSTITUTING STATES-STATE-BUILDING
At the time that it was recognized by the EC States and the United States, at the time it
was admitted to the UN, Bosnia was not a State, according to the traditional criteria
of statehood. Arguably, it was not a State even taking into account the indulgent
understanding of the criterion of effective government adopted as the process of
de co Ionization was implemented: only arguably because the referendum in which
the Bosnian people were asked if they supported independence was boycotted by the
Bosnian Serbs; while there was a majority of voters in favour of independence, it
could not be said that this represented the opinion of the people of Bosnia as a whole.
Left to its own devices, Bosnia might have survived as a juridical State but it could,
most likely would, have developed in a way unacceptable to powerful States, notably
79 See (1996) 35 ILM 170 and Gaeta, 1996.
80 SC Res 1031 (15 December 1995).
81 SC Res 1031 (16 November 1992).
82 Badinter Commission, Opinion No 9,4 July 1992 (1993) 4 BIlL 88,92 ILR 199.
260 COLIN WARBRICK
the permanent members of the Security Council which continued to characterize the
situation in the territory of the former Yugoslavia as a threat to international peace
and security. Bosnia was not the only example of this kind. The situation in Cambodia
had degenerated to such a condition that it might have been doubted that it remained
a State; Somalia was without any government; the situation in Sierra Leone was
different only in the most formal sense that one of the factions in a largely anarchical
environment had some rudimentary claim to be an elected, if singularly ineffective,
government. Later, the exclusion of Serbian authority from Kosovo following Security
Council Resolution 124483 promised an authority vacuum there and a transitional
absence of order was anticipated in the territory of East Timor upon the departure
of the Indonesian forces (Wilde, 2001). Most recently, the destruction of the Taliban
by the forcible intervention of the American-led coalition could have led to the
continuation of an even more intense condition of 'war lord' governance. In all these
cases, we can note two associated things-recognition, of the State as in the case
of Bosnia, of the government as in the case of Sierra Leone, of territorial integrity, as
in the case of Kosovo, was a crucial element in establishing the legal regime-State,
government, and title-at variance with the facts or likely to become so-and inter-
national organizations or States took on roles of 'State-building' to try to bring the
law and the facts into greater congruence and to create States or governments or
constitutional arrangements which, besides having or holding out the prospect of
a d~gree of permanence, inclined those with the power towards, compliance with
international legal standards, especially compliance with human rights. We see here
something of substance behind Hillgruber's 'admission to the community' approach
to recognition and of the implementation of Kreijen's claim of obligation of the
strong States to assist the weak. It is too early to draw from these diverse experiences
anything approaching a consistent practice, still less attitudes which demonstrate
opinio iuris. Indeed, it is too early to say whether such enterprises can succeed at all,
that law-making facts of statehood can be externally created. There is a search for
terms to encapsulate these new entities-trusteeships, international protectorates,
etc. which are redolent of some of the variations on statehood and status that were a
feature of colonial arrangements (Crawford, 1979, pp 186-208). But enthusiasts for
the project will doubtless say that it is a start. Robert Cooper, a particularly ambitious
proponent of the 'post-modern' State suggests a campaign of liberal imperialism to
go about the State-building process with a will. If those States which can, do take him
up on his programme, they will have to recognize first and create States afterwards. If
this becomes the norm, rather than an ad hoc and transitional phenomenon, most
of what has been written here could be abandoned. If it does not, then there is life yet
in statehood and the role of recognition which is here put forward. There is still a
need for Thomas Baty's admonishment that we remember that international law is
something to do with States.
83 SC Res 1244 (10 June 1999).
STATES AND RECOGNITION IN INTERNATIONAL LAW
III. CONCLUSION
One of the puzzles in the history of international law is how a legal system could have
developed which entrenched individual recourse to force (war) as a legal institution,
leaving the decision to go to war to the essentially untrammelled discretion of each
State and giving legal effect to the new situations established by the use of force-
creation of new States, transfer of territory, and imposition of treaties. The victor had
a legal right to dictate the terms of peace to the defeated. The answer given for this
remarkable state of affairs by Hall was that there was no option but to accommodate
to the use of force, irrespective of the legitimacy of the decision to go to war. There
was no 'community' force which could reverse the acts of the State, only recourse
to the same kind of force which was implicitly condemned (Hall, 1st edn, 1880,
pp 51-54). The international legal system had only two options: to acknowledge the
new circumstances and, where that was the case, to accept that these new facts could
create a new legal situation or to assert the continuing legality of the pre-existing
position, acknowledging that such a stance would become increasingly unrealistic
as time went on. States chose the former option in almost every case, sometimes
demonstrating that they did so by expressly recognizing the validity of the new
situation. In the specific context of statehood, this attitude gave predominance to the
effective exercise of authority over all other considerations.
Since then, the legal position has changed. Recourse to the use of force is subject to
stringent legal limitations and the results of an illegal use of force will not be con-
firmed but contested-action may be taken or authorized to reverse the illegality, such
as the expulsion of Iraqi forces from Kuwait, or States may be required or advised to
live with the anomaly between the legal and the actual until some political or military
process can bring them back together again, processes which may take many years, as
in the restoration of the rights of the people of East Timor, following Indonesia's
unlawful intervention. The orders or requests made to States by organs of the UN to
engage in a policy of non-recognition are designed both to act as a form of pressure
on the State which has acted illegally and to prevent consolidation of the' illegal or
politically-disapproved of situation by acts ~f recognition. The double aspect is a
consequence of the undeveloped institutional nature of the international legal system.
The rules which definitively exclude recognition of an illegally created situation are
controversial in terms of their legal provenance, their content and their precise legal
effects. Decisions of the Security Council, directed to meeting a threat to the peace,
may sometimes provide an ad hoc mitigation of these deficiencies but, in general,
much still depends upon the position taken by individual States. It also raises the
question whether there really has been any development in the general law of status or
whether action will be taken against an effective regime only in those circumstances in
which the Security Council deems the situation to threaten international peace.
The development of the law and practice of self-determination has introduced a
wider element to any possible consequences of illegality, in its negative aspect, and has
 COLIN WARBRICK STATES AND RECOGNITION IN INTERNATIONAL LAW

allowed the creation of situations where the congruence of law and fact in matters CRAVEN, M (1996), 'The European Com- - - (1999b), 'Defining Statehood: the
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ideas are called on in the modern international legal system to do several things Yugoslavia', 67 BYIL 333. contents', 37 Col JTL 403.
beyond their traditional functions of indicating one State's view of the status of CRAWFORD, J (1979), The Creation of States GRAY, C (1992), 'Self-determination and the
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support a lawful alternative. This positive role for recognition is strongly urged by - - (1998), 'State Practice in Inter- and the Position of an Unrecognised
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the law of recognition and its congeners hold radical implications for the inter- DREW, C (2001), 'The East Timor Story: Affairs 3.
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in Yugoslavia and the USSR and is as
good as any.
TALMON, S (1992), 'Recognition of Gov-
ernments: an Analysis of the New British
Policy and Practice', 63 BYIL 231, is the
best article on British recognition policy.
- - (1998), Recognition of Governments in
International Law in its opening parts
gives the clearest modern account of
recognition of governments.
- - (1998), Recognition in International
Law: a Bibliography (The Hague: Marti-
nus Nijhoff) is an essential reference tool.

FURTHER READING

BROWNLIE, I (1998), Principles ofPublicInter- DUGARD, J (1987), Recognition and the

national Law, 5th edn (Oxford: Clarendon United Nations (Cambridge: Cambridge
Press) contains the best textbook account University Press) is the most comprehen-
of statehood and recognition. sive treatment of collective recognition.

CRAWFORD, J (1970), The Creation of States
in International Law (Oxford: Clarendon
Press), is the leading work and, though
there has been much State practice since
then, his general account of the nature of
statehood remains valid. His article, 'State
Practice in International Law in Relation
to Secession', (1997) 69 BYIL 85, provides
an update on one aspect of the matter of
statehood.
GRANT, TD (1999), 'Defining Statehood:
the Montevideo Convention and its
Discontents', 37 Col JTL 403 contains a
useful account of the 'Montevideo Cri-
teria' (but the long section on contiguity
is misconceived).
JACKSON, RH (1990), Quasi-States: Sover-
eignty, International Relations and the
Third World (Cambridge: Cambridge
University Press), expands the original
work on the juridical State and, together
with James, A (1986), Sovereign State-
hood: the Basis of International Society
(London: Allen & Unwin), are the
accounts by international relations spe-
cialists most accessible to international
lawyers.
There is no satisfactory, comprehensive
treatment of the recognition of States but
the following are of particular use.
DUURSMA, JC (1996), Fragmentation and the
International Relations of Micro-States
(Cambridge: Cambridge University
Press), provides a brief, helpful account
incorporating self-determination with the
idea of statehood.
GREIG, DW (1967), 'The Carl-Zeiss Case
and the Position of an Unrecognised
Government in English Law', 83 LQR 96,
remains required reading for any work on
the domestic effects of recognition etc.
in English law, despite the change of
government policy since it was published.
PETERSON, MJ (1983), 'Recognition of
Governments should not be Abolished',
77 AJIL 31, provides a corrective to
Talmon's account of State practice on the
recognition of governments
RICH, R (1993), 'Recognition of States: the
Collapse of Yugoslavia and the Soviet
Union', 4 BJIL 36, and Mullerson, R
(1993), 'The Continuity and Succession
of States by reference to the former USSR
and Yugoslavia', 42 ICLQ 473, are among
the many good articles covering most
aspects of the matters that arose in Yugo-
slavia and the Soviet Union.
SCHARF, M (1995), 'Musical Chairs: the
Dissolution of States and Membership in
the United Nations', 28 Corn JIL 29, is one
of several articles on the consequences for

------~- - ----------------
 8
INTERNATIONAL
ORGANIZATIONS
DapoAkande

SUMMARY

This chapter examines the legal framework governing international organizations. It

begins with an examination of the history, role, and nature of international organizations.
It is argued in the chapter that although the constituent instrument and practices of
each organization differ, there are common legal principles which apply to international
organizations. The chapter focuses on the identification and exploration of those common
legal principles. There is an examination of the manner in which international organiza-
tions acquire legal personality in international and domestic law and the consequences of
that legal personality. There is also discussion of the manner in which treaties establishing
international organizations are interpreted and how this differs from ordinary treaty
interpretation. The legal and decision-making competences of international organizations
are considered as are the privileges and immunities of international organizations.
Finally, the chapter examines the structure and powers of what is probably the leading
international organization-the United Nations.

I. INTRODUCTION

A distinctive feature of modern international affairs is the large number of inter-

national organizations through which States seek to achieve cooperation. This
chapter looks at the place occupied by international or.ganizations within the inter-
national legal system and sketches the legal framework governing their activities.
It also describes the structure and activities of the leading global international
organization-the United Nations (UN).
 270 DAPO AKANDE
A. HISTORY AND ROLE OF INTERNATIONAL ORGANIZATIONS
International organizations were first created in the nineteenth century as a means
of conducting international relations and fostering cooperation between States.
They evolved from the ad hoc multilateral conferences convened by States to deal
with particular situations-such as the Congress of Vieilna (1815) which settled
issues arising from the end of the Napoleonic wars-into institutions in which
member States not only met regularly but which also possessed organs that func-
tioned on a permanent basis. The early international organizations dealt with tech-
nical, non-political matters and included Commissions regulating European rivers
such as the Rhine, the International Telegraphic Union (1865), and the Universal
Postal Union (1874). The League of Nations, created in 1919 after the First World War,
was the forerunner of the United Nations and was the first international organization
established to deal with general political and other relations between States and which
aspired to universal membership.
International organizations now play a significant role in international affairs
generally and in the development of international law specifically. They exist in
practically all fields of endeavour ranging from general political cooperation to
protection of the environment, defence, provision of humanitarian and develop-
ment assistance, promotion of trade, etc. Within their diverse fields of operation,
international organizations perform a number of functions. These include:
- Providing a forum for identifying, debating, and deliberating upon matters of
common interests.
- Acting as vehicles for taking action on international or transnational problems.
Providing a forum for adopting and developing rules on matters of common
interest.
Providing mechanisms for promoting, monitoring, and supervising State
compliance with agreed rules, policies, and practices as well as the gathering
of information and data regarding the conditions, policies, and practices.
Providing a forum for the resolution of international disputes.
B. DEFINITION, DISTINCTIONS, AND DIFFERENCES
In order to qualify as an international organization an entity must be composed
predominantly of States and/or other international organizations and be established
under international law. International organizations are usually created by treaty
but they can also be created by other means, such as the resolution of another inter-
national organization or joint unilateral acts by States. Additionally, such an entity
must possess autonomous organs having a will which is separate from that of the
members. In practice this means that an organization must have a separate legal
personality and be able to act on a majority basis.
The criteria set out above distinguish intergovernmental organizations which are
INTERNATIONAL ORGANIZATIONS 271
the subject of this chapter from other types of international associations such as
international non-governmental organizations and international public corporations.
The key factor distinguishing international or intergovernmental organizations,
such as the UN or the World Trade Organization (WTO), from international non-
governmental organizations, such as Amnesty International or Greenpeace, is that
the former are composed predominantly of States (and other intergovernmental
organizations) whilst the latter are composed of private entities, though they operate
in more than one country. International public corporations or joint inter-State
enterprises are entities jointly created by a number of States for the performance of
commercial functions. Examples include the European Company for the Financing of
Railway Rolling Stock (EUROFIMA) or Air Afrique (an airline established by eleven
West African States). Whilst international organizations are entities created under
international law and have international legal personality,joint inter-State enterprises
are formally established under the corporate law of one of the member States, even
though the enterprise may have its roots in a treaty.
Despite sharing a common definition, there are many differences between inter-
national organizations. The most obvious differences concern membership and func-
tions. Membership may be either universal (open) or closed. Universal organizations
are open to all States and examples include the UN and its specialized agencies. Closed
organizations limit membership to those States fulfilling certain common criteria.
Examples based on geographic criteria include regional organizations such as the
Organization of American States (OAS) and the African Union (AU). Other examples
based on economic criteria include the Organization of Petroleum Exporting Coun-
tries (OPEC) and the Organization for Economic Cooperation and Development
(OECD). Whilst some international organizations, such as the UN, have general func-
tions within broad areas, the functions of others are restricted to particular fields,
such as telecommunications, labour, health, or trade. Membership and function can
be combined in various ways: some closed regional organizations exercise general
functions (eg, the OAS and the Council of Europe) whilst some universal organiza-
tions only have competence in a limited field (eg, the UN specialized agencies such as
the International Labour Organization (ILO)).
C. IS THERE A COMMON LAW OF INTERNATIONAL
ORGANIZATIONS?
Given their great diversity, the existence of a common law applicable to .~!~!~~!i~~~
organizations has been qU(:~!:!2P~~ On one view, since the law governing each
organltaiion -derivesTio<m'~its own constituent instrument and practices, each will
be governed by different legal principles which can only be applied by analogy
to other organizations. It is true that these 'constitutions' regulate many matters,
such as membership, competences, and financing, in disparate ways. However, it
is equally true that customary international law and, to a much lesser degree, treaties
have generated principles of general application. These common principles concern
 DAPO AKANDE
matters such as the legal personality of international organizations, implied com-
petences, interpretation of constituent instruments, employment relations, immuni-
ties and privileges, and the liability and responsibility of the organization and its
member States. These common principles apply in the absence of any contrary prin-
ciple provided for in the law of the particular organization, and as regards liability
and responsibility m<l.Y even apply despite contrary constitutional provisions. It is
also accepted that the solutions adopted by one organization to a problem have a
relevance to the approach to be taken to an analogous problem in another.
The following sections outline the most important elements of this common law
applicable to international organizations.
II. LEGAL PERSONALITY
In considering the legal position of international organizations it is useful to start
by considering whether such entities possess legal personality and, if so, what the
consequences of that legal personality are. Because international organizations usually
operate on both the international plane and in national territories, one must
consider whether these organizations possess international legal personality and legal
personality in domestic law. Section ILA examines the meaning of international
legal personality and the sources of that personality for international organizations,
especially in cases in which it is not expressly provided for in the constituent instru-
ment of that organization. It also examines the consequences for international
organizations of the possession of international legal personality. Section lI.B con-
siders whether non-member States of international organizations are bound to
recognize their legal personality. Section lILC examines the obligation of member
States to confer personality in domestic law and the various techniques used by States
to confer such personality.
A. PERSONALITY IN INTERNATIONAL LAW
1. The meaning of international legal personality
To say that an entity has international legal personality is to say that the entity is a
bearer of rights and duties derived from international law. Whilst it was often asserted
in the nineteenth and early twentieth centuries that States were the only subjects of
international law it was decisively established in the Reparations for Injuries Advisory
Opinion that other entities, particularly international organizations, also possess
international legal personality. The case arose out of the murder of a UN mediator in
Jerusalem by a Jewish group. The UN General Assembly requested an opinion from
the International Court of Justice on whether the UN had the capacity to bring
an international claim (against Israel) for the purpose of obtaining reparation for
INTERNATIONAL ORGANIZATIONS 273
injuries done to the organization and its agents. Whilst Article 104 of the Charter
imposes an obligation on UN member States to confer legal personality on the Organ-
ization within their domestic legal systems, there is nothing in the Charter which
expressly grants international personality to the UN. Nevertheless, the Court found
that the UN possesses international legal personality, arguing that this was necessary
for the fulfilment of its functions. The Court also deduced legal personality from the
powers and rights that had been given to the UN (the power of decision-making,
domestic legal personality, and privileges and immunities, treaty-making powers)
under the Charter. The Court also noted that the Organization <occupies a position in
certain respects in detachment from its members' and that:
. .. the Organization was intended to exercise and enjoy, and is in fact exercising and
enjoying, functions and rights which can only be explained on the basis of the possession of
a large measure of international personality and the capacity to operate upon an inter-
national plane. 1
To say that international organizations possess international legal personality only
tells us that they are capable of possessing international rights, capacities, or duties.
It does not define the particular capacities, rights, or duties that any particular
organization possesses.
2. The sources of international legal personality for international organizations
Although treaties establishing universal international organizations do not usually
provide expressly that they possess international legal personality, there are treaties
dealing with closed international organizations which do SO. 2 Where there is no
express treaty basis, international personality may be deduced by other means.
There are two basic schools of thought regarding the meth9d by which the person-
ality is to be established in the absence of an express treaty provision. The first
school-the inductive approach-asserts that the personality of an international
organization is to be implied from the capacities, powers, rights, and duties conferred
on that organization in its constituent instrument and developed in practice (Seyersted,
1964; Rama Montaldo, 1970). According to this school of thought, an international
organization will only have personality if its members intended it to have such per-
sonality or if it can be asserted that such personality is necessary for the fulfilment of
the functions ascribed to it by its members. The second school-the objective
approach-asserts that an international organization has international legal personal-
ity as long as certain objective criteria set out by law are fulfilled (Schermers and
Blokker, 1995, §1565; Reinisch, 2000, pp 54-59; Bowett, 2001, para 15-007).3 Thus
personality is not derived from the will of the members. The relevant criteria are
1 Reparation for Injuries, Advisory Opinion, Ie! Reports 1949, p 179.
2 Examples include EC Treaty, Article 210; European Coal and Steel Community Treaty, Article 6;
Agreement Establishing the African Development Bank, Article 50.
3 Amerasinghe, 1996, p 82 tries to merge both schools, arguing an objective intention is required and is
to be found in the circumstances surrounding the creation of the organization.
274 DAPO AKANDE
essentially those stated above in the definition of an international organization: that
there must be (i) an association of States or international organizations; (ii) entrusted
with functions or powers; (iii) endowed with at least one organ with a will of its own.
However, there is no radical difference between the two schools if one accepts that
the characteristics which confer international legal personality on international
organizations must necessarily be conferred on it by its members. Once those charac-
teristics are conferred (by the will of the members through the constituent instrument
or subsequent practice), the rules of international law confer international personality
on the organization with all the consequences that this entails. Arguably, all that
the Court did in the Reparation for Injuries Opinion was to search to see if the charac-
teristics necessary for international personality (and which are predetermined by
international law) had been conferred on the UN by its members.
3. The consequences of the possession of international legal personality
by international organizations
Possessing international legal personality means that an organization possesses
rights and duties in international law but this does not usually tell us the particular
rights and capacities possessed by a particular organization. However, there are cer-
tain consequences which flow from the possession of international legal personality
by an international organization:
(i) Personality distinguishes the collective entity (the organization) from the
members. In particular, legal personality, separates out the rights and
obligations of the organization from those of the members.
(ii) Personality entitles the organization to bring a claim in international law for
the purpose of maintaining its own rights. 4 Such claims by international organ-
izations will be brought through the mechanisIp-s which exist in international
law for the settlement of international disputes and can only be made in an
international tribunal if that tribunal has jurisdiction to deal with the case.
(iii) Personality entails the consequence that an international organization is
responsible or liable for the non-fulfilment of its obligations and gives rise to
a presumption that members of the organization are not liable with respect
to the obligations of the organizations, although this presumption can be
displaced. The principle that members of the organization are not liable for
its obligations is illustrated by the International Tin Council (ITC) cases.
These cases arose out the failure of the lTC-an international organization
established to control the price of tin on the world markets-to meet its
commercial obligations. The lTC operated a buffer stock of tin and bought
tin when price was low (thus creating a demand) and sold when prices
were high. The organization was empowered to borrow money to finance
these transactions. As a result of a persistent drop in the price of tin, the
4 Schenners and Blokker, 1995, §1856 argue that this capacity is an implied power but one possessed by all
international organizations.
INTERNATIONAL ORGANIZATIONS 275
organization was no longer in a position to carry out trading and defaulted
on a number of contracts with tin brokers and commercial bankers. These
parties brought action in England (and elsewhere) seeking, amongst
other things, to hold the members of the lTC liable for its debts. These
actions were dismissed at all levels of the English courts on the ground
that the personality of the organization precluded holding the members
liable, the House of Lords relied primarily on English domestic lawS whilst the
majority in the Court of Appeal reached the same conclusion on the basis of
international law. 6
These three consequences are inherent in the very notion of international legal
personality and apply to any international legal person. However, there are other
consequences of the personality of international organizations which do not apply to
all international legal persons but result from the nature of personality possessed by
international organizations. -
First, customary international law confers, at least within the host State, certain
privileges and immunities on international organizations that are necessary for the
efficient and independent functioning of the organization. Secondly, international
organizations possess a power to conclude agreements which are subject to the law
of treaties. 7 Whilst the question whether a particular type of treaty is within the
competence of any particular organization depends on its implied powers, every
organization at least has the competence (where not expressly denied) to enter into
certain types of treaties. These include host-State agreements and treaties for the
purpose of settling claims by and against the organization. S
B. OBJECTIVE LEGAL PERSONALITY AND RELATIONS WITH
NON - MEMBER STATES
Does personality exist only in relation to members or is this personality objective
in the sense that non-members are bound to recognize it, with all the consequences
that this entails? - Given that international organizations are cre"ated by treaties
which do not bind non-parties without their consent9 it might be argued that the
personality of an international organization is only binding on members.10 This
would mean that non-members would only be bound to accept that personality
5 !H Rayner (Mincing Lane) Ltd v Department oJ Trade and Industry [1989} 3 WLR 969 (HL).
6 [1988) 3 All ER 257 (CA), particularly Ralph Gibsol). LJ at 353" Likewise in the Arab Organization Jor
Industrialisation & others v Westland Helicopters Ltd & others, the Swiss courts held the member States of the
organization were not bound by the obligations undertaken by the organization towards a private entity. See
80 ILR 622 Court ofJustice, Geneva (1987); Swiss Federal Supreme Court (1988).
7 Vienna Convention on the Law of Treaties Between States and International Organizations or Between
International Organizations (1986), preambular para II.
S See Reparation Jor Injuries, Advisory Opinion, Ie! Reports 1949, P 174 at p 18I.
9 Vienna Convention on the Law of Treaties (1969), Article 34.
10 See Third Restatement, 1987, §223.
 DAPO AKANDE
where they have 'recognized' the organization as a legal person. However, it seems that
the personality of international organizations is in fact objective and opposable to
non-members.
In the Reparation for Injuries Opinion, the Court had to consider whether
the UN could bring a claim against a State (Israel) which was not a member of the
Organization. It took the view that:
... fifty States, representing the vast majority of the members of the international com-
munity, had the power, in conformity with international law, to bring into being an entity
possessing objective international personality and not merely personality recognised by
them alone.... I I
Clearly then, international organizations with a membership conslstmg of the
vast majority of the international community possess objective international
personality.
However, it is important to note that the Court did not say that only such organiza-
tions possess objective personality and there are good reasons of practice and
principle for concluding that the personality possessed by any international organiza-
tion is objective and opposable to non-members. In practice, 'no recent instances
are known of a non-member State refusing to acknowledge the personality of an
organization on the ground that it was not a member State and had not given the
organization specific recognition' (Amerasinghe, 1996, p 86). Furthermore, domestic
courts of non-member States do acknowledge the international personality of inter-
national organizations. 12 As a matter of principle, the personality of international
organizations derives from rules of customary international law that are binding
on all States. Thus, once international law ascribes personality to an organization, a
subject of international law is created with its own rights and its own duties.
C. PERSONALITY IN DOMESTIC LAW
1. The obligation to confer domestic legal personality
Since international organizations also operate within the territory of States, they
usually need to possess domestic legal personality, including the capacity to perform
legal acts in domestic law. For example, international organizations will need to be
able to enter into contracts, own property, and institute legal proceedings. Many
treaties establishing international organizations provide that they are to have the
necessary legal capacities in domestic law, for example, UN Charter, Article 104. Even
where there is no express treaty obligation, there may be an implied obligation for
members to provide the organization with such domestic capacities as are necessary
to allow it to function effectively (Reinisch, 2000, p 44).
11 Reparation for Injuries, Advisory Opinion, IC! Reports 1949, p 174 at p 185.
12 For example, International Tin Council v Amalgamet, 80 ILR 31; 524 NYS 2d 971 (1988).
INTERNATIONAL ORGANIZATIONS 277
2. The manner in which domestic legal personality is recognized
States confer domestic legal personality on international organization in various ways.
The technique used depends in part on the relationship between international law
and the national law of the State concerned. The technique also varies between
member States of an organization and non-members. In member States which adopt
a more monist tradition of the relationship between international law and national
law, the domestic personality is often taken to flow directly from the treaty provision
requiring the conferment of such personality. This position has been taken (i) in
the United States and Belgium 13 with respect to the UN, (ii) the Netherlands with
respect to the United Nations Relief and Rehabilitation Administration,14 and (iii)
Italy with respect to the North Atlantic Treaty Organization (NATO). 15
In member States in which treaties do not form part of domestic law such treaty
obligation will usually need to be transformed into national law by a national instru-
ment. This is the technique adopted in common law countries like the UK where the
International Organizations Act (1968) provides that the legal capacity of a body
corporate may by Order in Council be granted to any international organization of
which the UK is a member. 16
Thus in the UK, the House of Lords in JH Rayner (Mincing Lane) Ltd v Depart-
ment of Trade and Industry stressed that the legal persona of the ITC in English law
was created not by the constituent agreement of the organization but by the domestic
legislation. According to Lord Oliver:
Without the Order in Council the I.T.C. had no legal existence in the law of the United
Kingdom .... What brought it into being in English law was the Order in Council and it is
the Order in Council, a purely domestic measure, in which the constitution of the legal
persona is to be found and in which there has to be sought the liability of the members
which the appellants seek to establish, for that is the act of the I.T.C.'s creation in the United
Kingdom. 17
The consequence of this was that the liability of members for the organization's
debts depended on domestic legislation rather than on the position in international
law.
The legal personality of international organizations will also be recognized by'the
courts of non-member States. Under private international law domestic courts will
recognize the legal status and capacities of an organization created by foreign law.
Since an international organization has personality under the law of its creation-
international law-that personality will be recognized by domestic courts. 18
13 Manderlier v Organisation des Nations Unies & Etat Belge (Ministre des Affairs Etrangeres) (1966),45
ILR 446; UNv B (1952),19 ILR 490.
14 UNRRA v Daan (1949), 16 ILR 337.
15 Branno v Ministry of War (1954),22 ILR 756.
16 International Organizations Act 1968, s. 2(a). Similar legislation exists in the United States, Australia,
Canada, and New Zealand.
17 [1989] 3 WLR 969, 1012c.
18 See International Tin Council v Amalgamet, 80 ILR 31; 524 NYS 2d 971; Arab Organization for Industrial-
isation & others v Westland Helicopters Ltd & others (1988), 80 ILR 622. .
 DAPO AKANDE
In the UK, the legal personality of an international organization of which the
UK is not a member will be recognized where the organization has been accorded
legal personality under the law of the host State or of another member State 19 rather
than by virtue of international law and the relevant constituent treaty. Taken to its
logical conclusion, this approach would have the unfortunate consequence that the law
governing the status and capacities of the organization would be the foreign domestic
law. Happily, the High Court in Westland Helicopters Ltd v Arab Organization for
Industralization 20 held that whilst the personality of an international organization of
which the UK was not a member would only be recognized in the UK if a foreign State
had accorded that organization personality in its domestic law, the law governing the
status and capacities of the organization is international law, including the relevant
treaties.
III. INTERPRETATION OF CONSTITUENT
INSTRUMENTS
Treaties which establish international organizations set out both the purposes,
structure, and competences of the organization as a whole, and the particular func-
tions and powers granted to its individual organs. These treaties, therefore, define the
position of the organization towards its members as well as the relationship between
the individual organs. In many cases, they also create rights and impose obligations
between the members. Finally, they may to some degree define the relationship
between the organization and third parties. Consequently, the marmer in which they
are interpreted is of considerable importance. The following subsections consider
(i) who is empowered to interpret constituent treaties of international organizations
and (ii) the relevant principles of treaty interpretation.
A. WHO IS EMPOWERED TO INTERPRET?
Since the organs of international organizations will need to have some appreciation of
the scope of their functions. and powers in order to carry them out, these organs will
necessarily and routinely have to interpret the treaty setting up the international
organization. In the Certain Expenses Advisory Opinion, the ICJ accepted that 'each
organ [of the UN] must, in the first place at least, determine its own jurisdiction' Y
Interpretations by organs will take place either formally and explicitly (eg, in a legal
19 Arab Monetary Fund v Hashim [1990] 1 All ER 685. A similar approach was taken in the US case In Re
!awa Mahmoud Hashim (1995), 107 ILR 405.
20 108 ILR 564; [1995] 2 All ER 387.
21 CertaiN Expenses of the United Nations, Advisory Opinion, IC! Reports 1962, p 151 at p 168.
INTERNATIONAL ORGANIZATIONS 279
act of the organ)-particularly in cases where dispute arises as to the meaning of
particular provisions-or impliedly as a result of the practice of the organ in question.
Some constituent treaties provide for formal and definitive interpretations by a
particular organ. This is particularly common with respect to international financial
institutions where there is often an obligation to submit questions of interpretation to
the Executive Board, Board of Directors, or the Board of Governors of the institution
for decision. 22 In such circumstances, the interpretations given by these organs are
binding, at least on the parties to the dispute, if not on all members and other
organs. Where there is no formal power of interpretation given, and interpretation
arises simply in the course of the work of the organization, such interpretations
are not binding on member States. In the same way that organs will have to interpret
constituent treaties in the course of their functions, members will similarly have to
do so.
Judicial or arbitral tribunals may also have occasion to interpret constituent
instruments. Such bodies may be created to deal with legal issues which arise within
the system of the international organization in question. Examples include the
Court of Justice of the European Communities and the International Tribunal for
the Law of the Sea. International organizations do not have standing to be parties in
contentious cases before the ICJ although UN organs and UN specialized agencies
may request advisory opinions from the ICJ on legal questions arising within
the scope of their competence, including the interpretation of their constituent
instrurnents. 23 In the case of specialized agencies, this competence to request advisory
opinions will be contained in agreements concluded with the UN or in their con-
stituent instruments. 24 The ICJ may also have to interpret the constituent instrument
of international organizations in contentious cases between States, where such a
case raises questions relating to the rights and obligations ·of States arising from
such treaties.
The constituent treaties may also provide for disputes arising thereunder to be
referred to international arbitration. 25 Alternatively, an arbitral tribunal established
under a treaty or contract between an international organization and a third
party may have to interpret the constitution of that organization. 26 As has already
been seen, national courts may also have to construe the constituent instruments of
international organizations ..
22 eg, IMF Articles of Agreement, Article XXIX(a); IBRD Articles of Agreement, Article IX(a); Agreement
Establishing the Asian Development Bank, Article 59.
23 Although there are implications to the contrary in the Legality of the Use by a State of Nuclear Weapons
in Armed Conflict (Request by WHO), Advisory Opinion, IC! Reports 1996, p 66, para 28, the better view is that
an authorized UN specialized agency is always entitled to request an advisory opinion on the interpretation of
its constituent instrument. See Akande (1998), pp 452-457.
24 eg, WHO Constitution, Article 76; IMO Constitution, Article 66.
25 eg, Universal Postal Union Constitution, Article 39.
26 See Westland Helicopters v Arab Organization for Industrialization et aL (1988),80 ILR 595.
280 DAPO AKANDE
B. WHAT ARE THE RELEVANT PRINCIPLES OF
INTERPRETATION TO BE APPLIED?
Since the constituent instruments establishing international organizations are usually
treaties, interpretation is governed by Articles 31 and 32 of the Vienna Convention on
the Law of Treaties. Article 5 of that Convention expressly states that the Convention
applies to such treaties and in the Nuclear Weapons Advisory Opinion (Request by
WHO) the IC] stated that:
From a formal standpoint, the constituent instruments of international organizations are
multilateral treaties, to which the well-established rules of treaty interpretation apply.27
However, the IC] has noted that constituent instruments have (certain special
characteristics'28 and that:
. . . the constituent instruments are also treaties of a particular character; their object is
to create new subjects of law endowed with a certain autonomy, to which the parties
entrust the task of realizing common goals. Such treaties can raise specific problems of
interpretation, owing, inter alia, to their character which is conventional and at the same
time institutional; the very nature of the organization created, the objectives which have
been assigned to it by its founders, the imperatives associated with the effective performance
of its functions, as well as its own practice, are all elements which may deserve special
attention when the time comes to interpret these constituent treaties. 29
To the extent that constituent instruments are in some senses (constitutions', the
general rules of treaty interpretation have to be applied differently when such treaties
are under consideration (Lauterpacht, 1976, p 416; Amerasinghe, 1996, p 59). It is
these differences that are focused on below.
1. The role of objects and purposes-the principle of effectiveness
Article 31 of the Vienna Convention provides that:
A treaty shall be interpreted in good faith, in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
The IC] has stated that (interpretation must be based above all upon the text of the
treaty',30 and generally speaking, the objects and purpose of a treaty are subsidiary to
the text (Aust, 2000, p 188). However, when interpreting constituent instruments of
international organizations special prominence is given to the objects and purposes
of the instrument and of the organization. In Nuclear Weapons Advisory Opinion
the Court spoke of (the very nature of the organization created, the objectives which
27 Legality of the Use by a State ofNuclear Weapons in Armed Conflict (Request by WHO), Advisory Opinion,
ICJ Reports 1996, p 66, para 19.
28 Certain Expenses of the United Nations, Advisory Opinion, IC] Reports 1962, p 151 at p 157.
29 Legality of the Use by a State ofNuclear Weapons in Armed Conflict (Request by WHO), Advisory Opinion,
IC! Reports 1996, p 66, para 19.
30 Territorial Dispute (Libya/Chad), Judgment, IC! Reports 1994, p 21, para 41.
INTERNATIONAL ORGANIZATIONS 281
have been assigned to it by its founders, the imperatives associated with the effective
performance of its functions' as elements which may (deserve special attention' in
interpreting the constituent instruments of international organizations. Likewise
in the Reparation for Injuries Opinion, the Court stated that (the rights and duties of
an entity such as the Organization must depend on its purposes and functions
as specified or implied in its constituent documents or developed in practice'.31
Frequently, the Court (will seek to determine what are the purposes and objectives of
the organization and will give to the words in question an interpretation which
will be most conducive to the achievement of those ends' (Lauterpacht, 1976, p 420).
This is known as the principle of effectiveness. The primary example of this principle
is the doctrine of implied powers, by which an organization is deemed to have those
powers that are necessary for achieving its purposes even in the absence of words in
the text which indicate that the organization is to have such a power.
2. The role of subsequent practice
The practice of the organization is often given a special role, and is used not only
in cases where the text of the agreement is ambiguous but also in cases of silence
and to graft new rules on to the constituent instrument. The justification for this
is that such treaties must be regarded as living instruments and be interpreted
in an evolutionary manner, permitting the organization to fulfill its purposes in
changing circumstances (Ress, 2002, pp 23-25). A well known example of this is
the Namibia Advisory Opinion,32 where the Court, relying on the consistent practice
of the Security Council and its members, held that an abstention by a permanent
member of the Security Council was a (concurring vote' within the meaning
of Article 27(3) of the United Nations Charter and not a veto. Similarly, in the
Reparation for Injuries Advisory Opinion the Court referred to the practice of the
UN and the fact that it had entered into treaties as confirming the legal personality
of the organization. 33
Reference to the practice of parties as a means of treaty interpretation is permitted
by the Vienna Convention, Article 31(3)(b). However, the Court has also drawn on
the practice of the organs of the organization. This is significant since some organs are
not composed of all organization's members and, even if they are, many operate on a
majority basis. Thus the practice of organs may not reflect the position of all parties to
the treaty. It is always possible that this practice is acquiesced in by members. How-
ever, where some members object to the practice of an organ, allowing that practice
to influence interpretation or development of new rules amounts to imposing new
obligations on the minority without their consent. This is contrary to the general
principle of international law that obligations can only arise from express or implied
31 Reparation for Injuries, Advisory Opinion, IC! Reports 1949, p 174, at p 180.
32 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, IC! Reports 1971, p 16,
paras 20-22.
33 Reparation for Injuries, Advisory Opinion, IC! Reports 1949, p 174 at p 179.
 DAPO AKANDE
consent and some judges of the ICJ have counselled against this approach.34 Some
authors claim there is an independent rule permitting the use of the practice of organs
which members of organizations must be deemed to have accepted (Lauterpacht,
1976,460; Ress, 2002, pp 27-30). However, subsequent practice of a majority within
an organ must not be used as a means of constitutional amendment (Amerasinghe,
1996, p 54; Lauterpacht 1976, p 465). It is noteworthy that in practically all cases
where the ICJ has referred to subsequent practice of organs it has simply been used as
a means of confirming an interpretation already arrived at using other methods of
interpretation. Subsequent practice of organs should therefore be confined to cases
where it establishes the agreement of the parties, confirms a result already reached or
to cases where other methods of interpretation lead to an ambiguity or an unreason-
able result.
IV. POWERS OF INTERNATIONAL ORGANIZATIONS
In addition to the powers expressly conferred on international organizations by
their constituent treaties these organizations also possess powers which are implied.
This section examines the basis for those implied powers. It then surveys the kinds
of decision-making powers possessed by international organization, and finally
examines the legal consequences when organizations act beyond their powers.
A. IMPLIED POWERS
In the Reparation for Injuries Advisory Opinion, the ICJ stated that:
Under 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. 35
This doctrine of implied powers has been applied by the ICJ in a number of cases.
In the Reparation for Injuries Opinion, the Court held that the UN was entitled to
present an international claim on behalf of its agents even though such a power is
not stated in the Charter. Likewise, in the Certain Expenses Advisory Opinion,36 the
Court held that the UN Security Council and the General Assembly were competent
to establish peacekeeping operations although that concept is not mentioned in the
Charter.
Implied powers are not restricted to those powers necessary for carrying out of
express powers or functions. On the contrary, ICJ practice shows that powers can be
34 See the Separate Opinion of Judge Spender in Certain Expenses of the United Nations, Advisory Opinion,
IC! Reports 1962, p 151 at p 197.
35 Reparation for Injuries, Advisory Opinion, IC! Reports 1949, p 174 at p 182.
36 Certain Expenses of the United Nations, Advisory Opinion, IC! Reports 1962, p 151 at p 177.
INTERNATIONAL ORGANIZATIONS
implied whenever they are 'essential' for the fulfilment of the organization's objects
and purposes. Furthermore, 'essentiality' does not mean that the power to be implied
must be 'indispensably required' (Lauterpacht, 1976, pp 430-432). The Court has
been rather liberal in its approach and has been willing to imply a power where it
would 'promote the efficiency of the Organization?7 The main limitation is that the
power must be directed at achieving the aims and purposes of the Organization. As
the ICJ stated that in Certain Expenses Advisory Opinion:
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. 38
B. DECISION-MAKING POWERS
International organizations are often given the power to take decisions relating
to their spheres of activity. Some decisions relate to the internal workings of the
organization itself and are directed at the organs of the organization-for example,
decisions approving the budget, staff regulations, rules of procedure, or decisions
establishing subsidiary organs. Other decisions are taken in the course of carrying
out the tasks entrusted to the organization and are directed at the members of the
organization or, exceptionally, at third parties such as individuals and other non-State
entities. Examples include decisions of the WHO setting standards with respect to
pharmaceutical and other products; decisions of the UN Security Council imposing
sanctions on a State; decisions of the ICAO Council relating to safety standards for
international aviation.
In determining whether or not a particular decision of an international organiza-
tion is legally binding on its addressee one must consider, first, whether that organ or
organization is empowered by its constitution (expressly or impliedly) to take binding
decisions and, secondly, whether the language of decision reveals an intention on the
part of the organ to issue a binding decision.
Some constituent treaties expressly confer on organizations the power to issue
decisions binding on their members. For example, Article 25 of the UN Charter
obliges members to carry out decisions of the SecuritY Council and under ArtiCle 22
of the WHO Constitution regulations adopted by the World Health Assembly are
binding, unless a member opts out of the regulation ab initio.
Since international organizations do not generally have law-making powers, they
are usually given power to take non-binding decisions which may take a number of
forms. The most common is the power to make recommendations to members con-
cerning matters within the scope of the organization (eg, UN General Assembly
under Articles 10-14 of the UN Charter). Other decisions may be determinations
consisting of findings of facts or characterizations or formal declarations of principles
37 Akande, 1998, p 444.
38 Certain Expenses of the United Nations, Advisory Opinion, IC! Reports 1962, p 151 at p 168.
----------- ----
 DAPO AKANDE
which the organ considers applicable in a particular area. Since these decisions are not
binding, they do not, of themselves, create obligations for member States.
However, the non-binding nature of decisions does not mean that a particular
decision is devoid of legal effect for members. Some constituent instruments oblige
members to consider recommendations in good faith. For example, the ILO and
UNESCO Constitutions (Article 19(6) and Articles 4(4) and 8 respectively) require
member States to submit recommendations to their competent national authorities
for consideration and are to report back to the organization on action taken. Further-
more, a separate international treaty may contain an obligation to have regard to (and
possibly to comply with) non-binding decisions of an international organization.
For example, the WTO Agreement on Sanitary and Phytosanitary Measures (SPS),
Article 3 encourages members to base their SPS measures on standards adopted
by other international organizations. Likewise United Nations Convention on the Law
of the Sea obliges States to comply with standards adopted by the (competent inter-
national organization' (usually the IMO). Additionally, it is arguable that there is a
presumption that members acting in accordance with a relevant decision of an inter-
national organization are acting lawfully at least as between the members of that
organization.
Finally, non-binding decisions of international organizations may contain rules
of law which are or become binding through other processes of international law.
Resolutions of the UN General Assembly which are couched in declaratory terms
"are a good example. 39 "Where such declarations elaborate on rules contained in the
constituent treaty of the organization or other treaties adopted within the organiza-
tion they may be regarded as authoritative interpretations of the treaty in question
or, alternatively, as subsequent practice establishing the agreement of the parties to
the treaty.40 Furthermore, such resolutions may be declaratory of pre-existing
rules of customary international law. Alternatively, such resolutions may play a
role in the formation of new customary rules so that the rules contained therein
may come to be regarded as binding. As the ICJ noted in the Nuclear Weapons
Advisory Opinion,
... General Assembly resolutions, even if they are not binding, may sometimes have norma-
tive value. They can, in certain circumstances, provide evidence important for establishing
the existence of a rule or the emergence of an opinio juris. To establish whether this is true of
a given General Assembly resolution, it is necessary to look at its content and the conditions
of its adoption; it is also necessary to see whether an opinio juris exists as to its normative
character. Or a series of resolutions may show the gradual evolution of the opinio juris
required for the establishment of a new ruleY
39 Prominent examples include the 'Universal Declaration of Human Rights', GA Res 217A (1948);
'Declaration of Principles of International Law Concerning Friendly Relations Among States', GA Res 2625
(1970); 'Declaration on Permanent Sovereignty Over Natural Resources', GA Res 1803 (1962).
40 Article 31(3)(c), Vienna Convention on the Law of Treaties.
41 Legality of the Use by a State ofNuclear Weapons in Armed Conflict (Request by WHO), Advisory Opinion,
IC! Reports 1996, p 66, para 70. . " and Egypt, Advisory Opinion, IC! Reports 1980, p 73 at p 104.
INTERNATIONAL ORGANIZATIONS
Thus whilst some international organizations have the competence to adopt decisions
which are binding on member States and others, most do not possess this power.
However, non-binding decisions of international organizations are not without legal
effect and the rules contained in those decisions milY be binding through a link with
other treaties or under customary international law.
C. ULTRA VIRES DECISIONS OF INTERNATIONAL ORGANIZATIONS
"What is the effect of a decision that is beyond the powers (ultra vires) of the organ
or the organization? Are such decisions nullities and therefore of no effect at all (void
ab initio)? Or are they only voidable, meaning that they are effective until they are
set aside by a competent body? And whatever view is taken, how one is to determine
whether a particular decision is ultra vires or not. Very few international organizations
have, like the EC, a judicial system competent to compulsorily adjudicate on the
legality of acts of the organs of the organization. There is, for example, no general
procedure by which the ICJ can consider the legality of decisions of the UN or its
specialized agencies, unless the question is raised 'in an advisory opinion requested by
the organ or organization or if it arises incidentally in a contentious case between
States (Akande, 1997).
The dearth of procedures for reviewing the legality of decisions makes the view that
illegal decisions are voidable (Osieke, 1983, p 255) problematic. In effect, it would
mean that illegal decisions stand unless by accident there is the possibility of review.
This is clearly unsatisfactory and the better view is that ultra vires decisions-but not
those merely suffering some minor procedural defect-are a nullityY As Judge Morelli
said in the Certain Expenses case:
In the case of acts of international organizations ... there is nothing comparable to the
remedies existing in domestic law in connection with administrative acts. The consequence
of this is that there is no possibility of applying the concept of voidability to the acts of
the United Nations. If an act of an organ of the United Nations had to be considered as
an invalid act, such invalidity could constitute only the absolute nullity of the act. In
other words, there are only two alternatives for the acts of the Organization: either the act is
fully valid, or it is an absolute nullity, because absolute nullity is the only form in which
invalidity of an act of the Organization can occurY
Thus, where a decision is illegal, a State is free to depart from it.44 However there
is al~~ys the risk that the decision might later on be found to be lawful and the
non-compliant State in breach of its obligations.
It must be noted that given the limited opportunities for judicial review, the
42 The constitution of the organization might provide that wrongful decisions become void only following
the determination of a competent body. See Osieke, 1983, pp 244-245.
43 Certain Expenses of the United Nations, Advisory Opinion, IC! Reports 1962, p 151 at p 222.
44 See Separate Opinion ofJudge Gros, Interpretation of the Agreement of25 March 1951 between the WHO
"
286 DAPO AKANDE
principle that ultra vires acts are void ab initio might undermine the certainty of
decisions of international organizations and permit States to seek to evade their treaty
obligations. However, this danger is reduced by the presumption, already referred to,
that acts of international organizations directed at the fulfilment of the purposes
of the organization are valid, meaning that the burden of proof is on the State arguing
otherwise. Additionally, mere procedural defects do not render decisions invalid. The
combination of these principles is sufficient to ensure stability.
V. PRIVILEGES AND IMMUNITIES
International organizations require certain privileges and immunities for the effective
performance of their tasks. These immunities are granted to preserve the independ-
ence of the organization from its member States and to secure the international
character of the organization. They ensure that no member State is able to unilaterally
interfere through its legislative, executive, or judicial branches with the workings of
an international organization set up to act in the common interests of members.
This section considers the sources and content of the privileges and immunities of
international organizations.
A. SOURCES OF PRIVILEGES AND IMMUNITIES
The privileges and immunities of international organizations may be derived from a
number of sources.
1. Treaties
There are three types of treaties which deal with the privileges and immunities of
international organizations. First, the constituent instrument of the organization
often includes provisions requiring member States to grant the organization immun-
ities. Such provisions are usually very basic and, like Article 105 of the UN Charter,
only contain a general statement that the organization, its officials, and representatives
of members are to enjoy such privilege~ and immunities as are necessary for the
exercise of their functions. 45
Secondly, there are general multilateral agreements dealing with the immunities of
particular international organizations or groups of organizations. These types of
agreements are regarded as a necessary supplement to the more basic provisions in the
constituent instruments. The leading examples include the 1946 General Convention
45 See also !LO Constitution, Article 40; WHO Constitution, Article 12; Council of Europe Statute,
Article 4(a); OAS Charter, Articles 133 and 134. However, the constitutional texts of international financial
institutions contain fairly elaborate provisions. See, eg, IBRD Articles of Agreement, Article VII; IMF Articles
of Agreement, Article IX; EBRD Constitution, Articles 4~55.
INTERNATIONAL ORGANIZATIONS
on the Privileges and Immunities of the United Nations and "the 1947 Convention on
the Privileges and Immunities of the Specialized Agencies. 46
The third type of treaty are bilateral agreements between international organiza-
tions and individual States which set out specific privileges and immunities. They are
most commonly concluded between the organization and the State in which it is
situated (the headquarters agreement) or with States in which the organization is about
to perform a particular mission, such as a peacekeeping or factfinding activity (eg,
Status of Forces Agreements). Such States need not be members of the organization.47
2. Customary international law
In the absence of a treaty obligation, customary international law requires States to
grant privileges and immunities to international organizations. 48 This has been
recognized both by domestic courts of member States of an organization and those of
non-member States which have consented to the organization functioning in their
territory.49 The obligation is one of good faith requiring the 'provision of what is
necessary for an organization to perform its functions' (Higgins, 1994, p 91).
3. Nationallaw
Since privileges and immunities are to be enjoyed within the national legal order,
many States have enacted domestic legislation governing their being granted. The
relevant legislation in the UK is the International Organizations Act 1968 which
provides that the Executive may by subsidiary legislation (Order in Council) grant
the stated privileges and immunities to international organizations of which the UK is
a member.
B. SCOPE OF PRIVILEGES AND IMMUNITIES
The particular privileges and immunities which a State is to grant an international
organization flow from the source of the obligation which will most commonly be a
46 Similar treaties exist within the OAS, Council of Europe, European Communities, League of Arab States,
and the OECD.
47 For a long time Switzerland was not a member of the UN but had an agreement with the UN regarding
the UN's office in Geneva.
48 See Reinisch, 2000, pp 145ff; Higgins, 1994, pp 90-94; Third Restatement, 1987, §467(l); Amerasinghe,
1996, pp 397--402; Szasz, 1995, P 1328. But see Bowett, 2001, §15-040 who only accepts such a customary
obligation in some cases.
49 See X et al. v European School Munich II (Bavarian Administrative Court, Germany 1995), referred to by
Reinisch, 2000, pp 150-151; Iran-United States Claims Tribunal v AS, 96 ILR 321, 329 (Dutch Supreme Court,
1985); ESOC Official Immunity Case, 73 ILR 683 (Federal Labour Court, ER. Germany, 1973); Branna v
Ministry of War, 22 ILR 756 (Court of Cassation, Italy, 1954); Intemational Institute of Agriculture v Profili,
5 ILR 413 (Court of Appeal, Italy, 1930). Courts of States other than the host State have held that they are not
obliged to grant immunities to international organizations in the absence of a treaty. See Bank Bumiputra
Malaysia BHD v International Tin Council, 80 ILR 24 (High Court, Malaysia, 1987); International Tin Council
v Amalgamet, 80 ILR 31 (New York Supreme Court, 1988); ECOWASv BCCI, 113 ILR 473 (Court of Appeal
of Paris, France, 1993).
288 DAPO AKANDE
treaty. Despite the impressive number of treaties providing for the privileges and
immunities, there are remarkable similarities in their contents. This has permitted
rules of customary international law to develop. However, these similarities relate to
general matters and details vary from treaty to treaty.
Who is entitled to the immunity? Most treaties confer privileges and immunities
on three categories of person. First, to the organization itself; secondly, to officials of
the organization (including experts on mission for the organization); thirdly, to
representatives of member States (or exceptionally of other bodies) to the organiza-
tion. This chapter only considers the privileges and immunities of the organization
itself since the personal immunities of international officials and State representatives
are considered in Chapter 12. The five main privileges and immunities conferred on
international organizations are considered in the following sections.
1. Immunity from jurisdiction
International organizations are usually granted absolute immunity from the judicial
jurisdiction of States. For example, Article II, Section 2 of the 1946 Convention on the
Privileges and Immunities of the United Nations provides that:
The United Nations, its property and assets wherever located and by whomsoever held, shall
enjoy immunity from every form of legal process except insofar as in any particular case it
has expressly waived its immunity. It is, however, understood that no waiver of immunity
shall extend to any measure of execution.
Similar provisions exist in many treaties setting out the immunities of international
organizations.
This immunity from jurisdiction prevents law suits against organizations before
domestic courts unless they have waived their immunity by consenting to the pro-
ceedings. Despite the absolute nature of the immunity granted, a number of domestic
courts have applied to international organizations the concept of restrictive immu-
nity, granting them jurisdictional immunity only in relation to acts jure imperii (in
the exercise of sovereign authority) rather than acts jure gestionis (done privately).50
This is based on the misapprehension that since international organizations are
composed of States they are to be placed in the same position as foreign States. This
approach is incorrect for at least two reasons. First, it is contrary to the express provi-
sions of the relevant treaties. Secondly, international organizations are not sovereign
entities and do not exercise sovereign authority. Their immunity is not granted to
protect sovereign or public acts but is functional and granted in respect of acts done in
the exercise of their functions. Such functions and acts may well be commercial and so
classified as private if done by a State. Thus immunity may arise for an international
organization in cases where a foreign State will be denied immunity. For example,
employment disputes fall within the immunity of an international organization even
if the relations with the particular employee might be classified as jure gestionis.
50 See Reinisch, 2000, pp 185-205 who notes that this trend is most common in Italy.
INTERNATIONAL ORGANIZATIONS
It should be noted that some international organizations are not granted absolute
immunity by the relevant treaties. In particular, constituent instruments of a number
of international financial institutions such as the World Bank (IBRD) do not extend
immunity to certain kinds of actions. This is because these organizations operate in
the commercial world where it is felt necessary to permit creditors to institute actions
in some instances.
2. Immunity from execution
International organizations also enjoy immunity from measures of execution. This
prevents the seizure or even the pre-judgment attachment of its property or other
assets. It is important to note that a waiver of jurisdictional immunity does not
include a waiver of the enforcement jurisdiction which must be given expressly and
separately. In some cases, particularly as regards international financial institutions,
the immunity from execution granted by the relevant treaty only applies before the
delivery of final judgment.
3. Inviolability of premises, property, and archives
Practically all relevant treaties provide that the premises of an international organiza-
tion are to be inviolable and that its property and assets are to be immune from
search, requisition, confiscation, or other forms of interference by State authorities. 51
Thus, national authorities may not enter such premises without the consent of the
international organization, even when a crime has been committed on the premises
or a criminal is sheltering there. The treaties also impose an obligation on the national
authorities to exercise due diligence in protecting those premises from acts of third
parties.
The archives (documents) of an international organization are usually inviolable
wherever located. 52 This ensures the confidentiality of communications within and
with the international organization, enabling it to function effectively and independ-
ently. Consequently, international organizations are not obliged to produce their
official documents, or other documents held by them, in proceedings before national
courts. In one of the Tin Council cases-Shearson Lehman Bros v Maclaine Watson &
Co (1987)53-the House of Lords held that documents issued by an international
organization but which had been communicated to third parties by officials of the
organization did not benefit from these principles. This decision has been criticized
because the documents were sent by the organization to the States in their capacity as
members-not as third parties-and in relation to the work of the organization.
Plainly, the confidentiality of such documents requires protection.
51 UN Convention 1946, Article II, section 3; Specialized Agencies Convention 1947, Article III,
section s.
52 UN Convention 1946, Article II, section 4; Specialized Agencies Convention 1947, Article III,
section 6.
53 77 ILR 107.
 DAPO AKANDE
4. Currency and fiscal privileges
Since many international organizations exercise their functions in a number of
countries they will need to transfer funds. Several treaties provide that such trans-
actions are to be free from financial restrictions. For example, the UN Convention
provides that the organizations (a) 'may hold funds, gold or currency of any kind
and operate accounts in any currency' and (b) may freely transfer their 'funds, gold
or currency from one country to another or within any country and to convert any
currency held by them into any other currency'.54 International organizations are
usually exempt from direct taxation of their assets, income, and property as well as
from custom duties and other import and export restrictions in respect of articles for
official use. 55 However, this does not extend to charges for public utility services or
excise duties or sales taxes.
5. Freedom of communication
It is commonly provided that official communications by international organizations
shall be accorded treatment at least as favourable as that accorded to foreign govern-
ments. 56 In addition it is sometimes provided that no censorship shall be applied
to official communications and that the organization shall have the power to use
codes as well as couriers and bags having the same status as diplomatic couriers
and bags. 57
International organizations should not use their privileges and immunities to
circumvent either the domestic laws of States or their responsibility towards third
parties. In order to prevent immunity being used to avoid legal responsibility, Article
29 of the UN Convention provides that 'The United Nations shall make provisions for
appropriate modes of settlement of (a) disputes arising out of contracts or other
disputes of a private law character to which the United Nations is a party .. .'. In
practice international organizations will often include arbitration clauses in contracts
that they enter into. Furthermore, most organizations have a system for the settlement
of employment disputes which includes recourse to an international administrative
tribunal.
Finally, it must be remembered that international organizations remain responsible
in international law for breaches of their obligations even if they are immune from
process before domestic courts. As the ICT has stated 'the question of immunity from
legal process is distinct from the issue of compensation for any damages incurred as a
result of acts performed by the United Nations or by its agents acting in their official
capacity' .58
54 UN Convention, Article II, section 5; Specialized Agencies Convention, Article III, section 7.
55 UN Gonvention, Article II, section 7; Specialized Agencies Convention, Article III, section 9.
56 UN Convention, Article III, section 9; Specialized Agencies Convention, Article IV; section 11;
IBRD Articles of Agreement, Article VIl(7).
57 UN Convention, Article III, sections 9 and 10; Specialized Agencies Convention, Article IV; section 12.
58 Difference Relating to Immunity from Legal Process, Advisory Opinion, Ie] Reports 1999, p 62, para 66.
INTERNATIONAL ORGANIZATIONS 291
VI. THE UNITED NATIONS SYSTEM
The remainder of this chapter will look at the structure and powers of what is perhaps
the leading family of international organizations-the United Nations system. The
United Nations was established after the Second World War with very broad aims,
including: (i) the maintenance of international peace and security; (ii) the develop-
ment of friendly relations among nations; (iii) international cooperation in solving
international problems of an economic, social, cultural, or humanitarian character,
and (iv) the promotion of human rights (Article I, UN Charter). The work of the UN
and its specialized agencies touches on practically every· area of human life and
endeavour.
A. THE STRUCTURE OF THE UNITED NATIONS
Like all international organizations, the UN is composed of a number of organs. In
addition, the UN system comprises a family of international organizations which
share certain common institutions and practices.
1. The United Nations organs
Article 7 of the UN Charter identifies two types of organs within the United Nations:
principal organs and subsidiary organs. Article 7 (1) lists the six principal organs of
the United Nations: (i) the General Assembly; (ii) the Security Council; (iii) the
Economic and Social Council (ECOSOC); (iv) the Trusteeship Council; (v) the Inter-
national Co~rt ofJustice; and (vi) the Secretariat. The structure and powers of each of
these organs shall be discussed below. Article 7(2) provides that 'such subsidiary
organs as may be found necessary may be established in accordance with the present
Charter'. Whilst the list of principal organs is exhaustive and no additional organs
may be established or wound up except by amendment of the Charter, subsidiary
organs can always be created by the principal organs. Their lifespan is determined by
the principal organ that has established them.
The powers, functions, and composition of the principal organs are determined
by the Charter, whilst those of subsidiary organs are determined by the principal
organs that establishes them. Subsidiary organs established by the General Assembly
include the International Law Commission, the United Nations Environment Pro-
gramme (UNEP), the Office of the UN High Commissioner for Refugees (UNHCR),
UNICEF, the United Nations Development Programme (UNDP), and the UN
Administrative Tribunal (UNAT). Subsidiary organs set up by the Security Council
include peacekeeping missions, the International Criminal Tribunals for the Former
Yugoslavia and Rwanda, and the United Nations Compensation Commission·
(UNCC).
In most cases, a principal organ will confer some of its powers on a subsidiary
organ that it creates. However, a principal organ may be entitled to confer on the
29 2 DAPO AKANDE
subsidiary organ powers which it does not itself possess where the power to establish
such a subsidiary organ is necessary for the performance of the functions of the
principal organ (Sarooshi, 1996, pp 426-431). Thus, both the General Assembly and
the Security Council have established subsidiary organs that have judicial powers
even though they themselves do not have such powers. The legality of their doing
so was confirmed by the ICI in the Administrative Tribunal Advisory Opinion59 and
by the Appeals Chamber of the International Criminal Tribunal for the Former
Yugoslavia. 60 Moreover, in the Administrative Tribunal case it was held that the
General Assembly was bound to give effect to the awards of the Administrative Tri-
bunal thus confirming that a principal organ can establish a subsidiary organ with
powers to bind the principal organ.
2. The specialized agencies
The Charter also refers to another type of body known as specialized agencies. Unlike
the subsidiary organs, these are international organizations in their own right. They
are established by separate treaties and brought into relationship with the UN by
agreement (Articles 57 and 63). They operate in particular technical fields and, like
the UN, are open organizations with worldwide membership and responsibilities.
There are currently seventeen specialized agencies. 61
Although they are independent international organizations, the UN Charter
provides that the UN may coordinate their activities (Articles 57-60), principally
through ECOSOC, which has not, in practice, been active in this regard. Some
activities are coordinated by other bodies. For example, development assistance is
coordinated by UNDP. The Administrative Committee on Co-ordination (ACC) is
responsible for coordinating the work of the specialized agencies themselves. Despite
the suggestion to the contrary in the Nuclear Weapons Advisory Opinion (WHO
Request),62 legitimate overlap can and does occur between the competences of
59 Effects of Awards of Compensation made by the United Nations Administrative Tribuna~ Advisory Opin-
ion, IC! Reports 1954, p 47.
60 Prosecutorv Tadic (Jurisdiction) (1995), 105 ILR 419, 470-47l.
61 These are: (1) The International Labour Organization (ILO); (2) The Food and Agriculture Organiza-
tion (FAO); (3) The United Nations Educational, Scientific and Cultural Organization (UNESCO); (4) The
World Health Organization (WHO); (5) The International Bank for Reconstruction and Development
(IBRD or World Bank); within the World Bank group are the next three agencies which are also specialized
agencies but are run together with the World Bank; (6) The International Development Association (IDA);
(7) The International Finance Corporation (IFC); (8) The Multilateral Investment Guarantee Agency
(MIGA); (9) The International Monetary Fund (IMF); the IMF is separate from the World Bank but closely
related as another 'Bretton Woods' Institution; (10) The International Civil Aviation Organization (lCAO);
(11) The Universal Postal Union (UPU); (12) The International Telecommunications Corporation (ITU);
(13) The World Meteorological Organization (WMO); (14) The International Maritime Organisation
(IMO); (15) The World Intellectual Property Organization (WIPO); (16) The International Fund for
Agricultural Development (IFAD); (17) The United Nations Industrial Development Organization
(UNIDO).
62 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request by WHO), Advisory Opinion,
IC! Reports 1996, p 66, para 26.
INTERNATIONAL ORGANIZATIONS 293
specialized agencies within the UN system. For example, both the WHO and the ILO
are competent to deal with health of workers. Likewise IMO, UNEP, and the Inter-
national Atomic Energy Agency cooperate regarding transportation of nuclear fuel
by sea.
3. Treaty bodies
A variety of treaties concluded under the auspices of the UN establish bodies which
maintain very close relations with the UN and are considered as UN bodies. Examples
include the various committees set up by human rights treaties to monitor com-
pliance with the obligations they contain, such as the Human Rights Committee and
the Committee Against Torture. These bodies only act in relation to those States
which are parties to these treaties. They meet in the UN, are serviced by the UN
Secretariat, and submit reports to the General Assembly.
B. PRINCIPAL ORGANS OF THE UNITED NATIONS
1. The General Assembly
The General Assembly is the plenary organ of the United Nations and is composed of
all member States (Article 9) and is the only principal organ in which all members are
represented. It is a deliberative not a legislative body and unlike the Security Council,
is not in permanent session but meets annually in regular session which usually takes
place between September and December (Article 20). It may also meet in special
session outside its regular sessions. At its regular sessions, agenda items are allocated
to one of the six main committees, where substantive discussion and decision-taking
occurs. These committees are:
First Committee-Disarmament and International Security;
Second Committee-Economic and Financial Committee;
Third Committee-Social, Humanitarian and Cultural Committee;
Fourth Committee-Special Political and Decolonization Committee;
Fifth Committee-Administrative and Budgetary Committee;
Sixth Committee- Legal Committee.
Decisions taken in these committees are put to the plenary for adoption towards the
end of the Assembly's session.
There are also two procedural and two standing committees. The procedural
committees, which unlike the main committee are not composed of all UN
members, are the General Committee (responsible for organizing the work of
the session and for deciding on the agenda) and the Credentials Committee (which
examines the credentials of representatives of member States). The standing
committees-the Advisory Committee on Administrative and Budgetary Questions
and the Committee on Contributions-assist the Fifth Committee with financial
matters and are composed of experts rather than representatives of member States.
294 DAPO AKANDE
The Assembly has competence to discuss and make recommendations upon the
very broad range of matters falling within the scope of the Charter (Article 10).
However, it can only make binding decisions on internal administrative matters.
Articles 11-17 of the Charter specifically provide that the General Assembly has
competence with regard to peace and security, promoting human rights, and inter-
national cooperation in political, economic, social, cultural, educational, and health
fields. However, 1;he Assembly may not make recommendations concerning disputes
or situations in ~espect of which the Security Council is exercising its functions unless
requested to do so by the Council (Article l2) and, together with the UN as a whole, it
may not intervene 'in matters which are essentially within the domestic jurisdiction of
any State' (Article 2(7)). Voting in the Assembly is on the basis of one member one
vote. Decisions on important questions must be adopted by two-thirds of members
present and voting. There is a non-exhaustive list of such important questions. Other
decisions are to be taken by simple majority (Article 18).
2. The Security Council
The Security Council is composed of fifteen member States of the UN. There are
five permanent members of the Council (USA, Russia, UK, France, China) and ten
which are elected by the Assembly for two-year terms (Article 23). Its competence is
mainly (though not exclusively) limited to issues concerning the maintenance of
international peace and security, for which it bears primary responsibility within
the UN system (Article 24). Although each member has one vote, decisions on
non-procedural matters must be adopted by the affirmative vote of nine members
and include the concurring vote of the permanent members who therefore possess
a veto with respect to substantive decisions. Abstention, however, are not deemed
to be vetos. 63 The powers of the Security Council in the area of peace and security
are explored in Chapters 16 and 19. It suffices here to note that the .--C0.Yopcil_has
__!be power to adopt decisions which are binding on members of the UN (Articles 24
and 25).
3. The Economic and Social Council
ECOSOC is the primary organ responsible for economic and social matters within
the UN. It is composed of fifty-four members who serve for three years and each
member has one vote. ECOSOC can make or initiate studies in the area of its com-
petence and make recommendations to the General Assembly, the member States, or
the specialized agencies on such matters (Article 62). ECOSOC has special responsi-
bility for the promotion of human rights. It has been active in preparing treaties in the
human rights areas (eg, the International Covenant on Civil and Political Rights). It
also has responsibilities regarding the specialized agencies, concerning their relations
with the UN and the coordination of their activities.
63 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, IC! Reports 1971, p 16, paras 20-22.
INTERNATIONAL ORGANIZATIONS 295
ECOSOC has created a number of subsidiary organs: five regional commissions-
for Africa, the Asia Pacific, Europe, Latin America and the Caribbean, and Western
Asia-and nine functional Commissions dealing with particular topics, including
the Commission on Human Rights, the Commission on Sustainable Development,
and the Commission on the Status of Women. ECOSOC also has six standing
committees (eg, the Commission on Human Settlements and the Commission on
Transnational Corporations) and a number of standing bodies of experts.
4. The International Court of Justice
This is the principal judicial organ of the United Nations and IS considered in
Chapter 18.
5. The Secretariat
The Secretariat consists of the staff of the UN and is headed by the Secretary-General.
It services the work of the UN organs, except the ICJ, and carries out other functions
that they assign to it. In addition, the Secretary-General may bring to the attention
of the Security Council any matter which he considers may threaten international
peace and security (Article 99). Members of the Secretariat are to be independent of
governments and may not seek or receive instructions from them (Article 100).
6. Trusteeship Council
The Trusteeship Council was set up to administer the trusteeship system established
by Chapter XII of the Charter. This concerned the administration of territories that
had been League of Nations mandates (ie, territories taken from Germany and
Turkey following the First World War) and territories 'detached from enemy States
as a result of the Second World War' (Article 77) with the objective of promoting
the advancement of the inhabitants and their progressive development towards self-
government and independence. The work of the Council was suspended in 1994 when
the last of the Trust territories, Palau, achieved independence.
VII. CONCLUSION
Despite the diversity in the nature and tasks of international organizations, it has
proved possible to identify some common legal principles which govern these
organizations. However, it cannot be forgotten that the structure, functions, and
powers of each organization are primarily to be derived from the treaty setting up
the organization and the practice which has built up regarding that organization.
The fact that States continue to create new international organizations to deal
with emerging problems in international affairs is principally due to the result of three
factors. First, there is the realization that a number of problems faced by States and
their populations can only be resolved or can best be resolved through international
 DAPO AKANDE INTERNATIONAL ORGANIZATIONS 297

cooperation. Secondly, there is there is the realization that such cooperation often SCHERMERS, HG and BLOKKER, N (1995), International Law, 2nd edn (Amsterdam:
needs to be multilateral. Thirdly, it is clear that such cooperation needs to be per- International Institutional Law, 3rd revised North-Holland), p 1325.
manent. The heightened awareness by States of these points and the increasmg edn. (The Hague: Martinus Nijhoff). THIRD RESTATEMENT (1987), Restatement of
emergence of 'global problems', means that it is likely that there will be an increase SEYERSTED, F (1964), 'International Person- the Law, third; The Law of Foreign Rela-
not only in the number of international organizations but also in the powers and ality of Intergovernmental Organizations: tions of the United States as adopted and
functions accorded to those organizations. However, together with this increasing Do their Capacities Really Depend upon promulgated by the American Law Institute
delegation of public powers by States to international organizations it is likely that their Constitutions?', 4 IJIL l. cit Washington, DC, 14 May 1986, vol I
greater attention will be paid to developing means to hold these organizations SZASZ, P (1995), 'International Organiza- (St Pauls, Minn.: American Law Institute
accountable for the exercise of such powers. 64 This is a process that has already tions, Privileges and Immunities', in Publishers) .
generated much interest and will involve careful analysis of the limits of the powers of Bernhardt (ed.) Encyclopaedia of Public
international organizations.

REFERENCES
AKANDE, D (1997), '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?', 46 ICLQ 309.
- - (1998), 'The Competence of Inter-
national Organizations and the Advisory
Jurisdiction of the International Court of
Justice', 9 EJIL 437.
AMERASINGHE, CF (1996), Principles of the
Institutional Law of International Organ-
izations (Cambridge: Cambridge Uni-
versity Press).
AUST, A (2000), Modern Treaty Law and
Practice (Cambridge: Cambridge Uni-
versity Press).
BOWETT'S Law of International Institutions,
Sands, P and Klein, P (eds) (2001), 5th
edn (London: Sweet & Maxwell).
HIGGINS, R (1994), Problems and Process:
International Law and How We Use It
(Oxford: Oxford University Press).
INTERNATIONAL LAW ASSOCIATION COM-
MITTEE REpORTS (1996-2000), ILA Com-
mittee on Accountability of International
Organization, Report of the 68th Con-
ference of the lLA held at Taipei, p 584
64 See generally, Reinisch, 2001 and lLA Committee Reports, 1996-2000.
(First Report); www.ila-hq.orglhtrnl/
layouccommittee.htm (Second and
Third Reports).
LAUTERPACHT, H (1976), 'The Development
of the Law of International Organizations
by the Decisions of International Tri-
bunals', 52 Recueil des Cours 377.
OSIEKE, E (1983), 'The Legal Validity of
Ultra Vires Decisions of International
Organizations' 77 AJIL 239.
RAMA MONTALDO, M (1970), 'International
Legal Personality and Implied Powers of
International Organizations', 44 BYIL
Ill.
REINISCH, A (2000), International Organiza-
tions before National Courts (Cambridge:
Cambridge University Press).
- - (2001), 'Securing the Accountability
of International Organizations', 7 Global
Governance 13l.
REss, G (2002), 'The Interpretation of the
Charter', in Simma, B (ed.), The Charter
of the United Nations: A Commentary
(Oxford: Oxford University Press) p 13.
SAROOSHI, D (1996), 'The Legal Framework
Governing United Nations Subsidiary
Organs', 67 BYIL 413.
FURTHER READING
AMERASINGHE, CF (1996), Principles of
the Institutional Law of International
Organizations (Cambridge: Cambridge
University Press): this provides an
excellent overview of the law relating to
international organizations.
BEKKER, PHF (1994), The Legal Position of
Intergovernmental Organizations: A Func-
tional Necessity Analysis of Their Legal
Status and Immunities (Dordrecht:
Martinus Nijhoff): a good introduction
to the legal status, privileges and immun-
ities of international organizations.
BOWETT'S Law of International Institutions,
Sands, P and Klein, P (eds) (2001),
5th edn (London: Sweet & Maxwell):
this provides an excellent overview of
the structure of the leading international
organizations as well as of the
common legal issues relating to these
organizations.
REINISCH, A (2000), International Organiza-
tions in Domestic Courts (Cambridge:
Cambridge University Press): an excellent
consideration of the legal issues which
arise when international organizations
sue and are sued in domestic courts.
SCHACHTER, 0 and JOYNER, J (eds) (1995),
United Nations Legal Order, 2 vols
(Cambridge: Cambridge University
Press): a detailed examination of the
structure of .the United Nations and its
specialized agencies, considering the
competence of these organizations in a
variety of areas.
SCHERMERS, HG and BLOKKER, N (1995),
International Institutional Law, 3rd
edn (The Hague: Martinus Nijhoff): a
detailed examination of the law relating
to international organizations.
SIMMA, B (ed.) (2002), The Charter of the
United Nations: A Commentary, 2nd edn
(Oxford: Oxford University Press): an art-
icle by article analysis of the Charter of
the United Nations.
SLOAN, B (1991), United Nations General
Assembly Resolutions in Our Changing
World (Ardsley, NY: Transnational Pub-
lishers): a very good consideration of
the status of UN General Assembly
resolutions.
WELLENS, K (2002), Remedies Against
International Organizations (Cambridge:
Cambridge University Press): an overview
of the law relating to responsibility of
international organizations.
WHITE, N (1996), The Law of International
Organizations (Manchester: Manchester
University Press): this provides an excel-
lent overview of the law relating to
international organizations.
 9
THE INDIVIDUAL AND
THE INTERNATIONAL
LEGAL SYSTEM
Robert McCorquodale

SUMMARY

This chapter explores the role of the individual in the international legal system today.
It considers the extent to which the individual, including groups of individuals, is an
independent participant in this system. This participation is explored by reference to the
direct rights and responsibilities of individuals under the international legal system, their
capacity to bring international claims and their ability to participate in the creation,
development, and enforcement of iFlternational law. Particular examples from a wide
range of areas of international law, including international human rights law, inter-
national criminal law, and international economic law, will be used to show the conceptual
and practical participation of individuals in the international legal system. The conclusion
reached is that individuals are participants in that system, and are not merely objects that
are subject to States' consent, though the degree of participation varies depending on the
changing needs and nature of the international legal system.

1. INTRODUCTION

The issue of the role of the individual in international law has been a part of
the debate over the nature of the international legal system for centuries. In 1532
Francisco de Vitoria considered that the indigenous peoples of South America had
some claim to protection under international law (Anaya, 1996) and in the twenty-
first century the entry into force of the International Criminal Court is seen by many
writers as acceptance of the direct responsibility of individuals under international
law for certain actions (see Chapter 23 on International Criminal Law).
However, for much of this time the dominant view has been that individuals had
300 ROBERT McCORQUODALE
no effective independent role in the international legal system. Their role was wholly
determined by States and was entirely subject to States' consent. The development of
international law, particularly of international human rights law, in the second half
of the twentieth century has been the main reason why the issue of the role of
individuals in the international legal system has again come to prominence.
A. THE INDIVIDUAL
'The individual' is defined and conceived in a number of different ways in the inter-
national legal system. In every case it includes each human being. When human
beings (usually known in law as 'natural persons') have any involvement in the inter-
national legal system, it is often as part of a group of natural persons acting together.
So groups of indigenous people and groups who have the right of self-determination
are natural persons who act together in regard to some international legal issues, and
so could be considered to be 'individuals'. Natural persons do form groups due to
common interests, such as non-governmental organizations (eg, Anmesty Inter-
national, Oxfam), although these groups are legally separate entities from natural
persons. Corporations are also separate entities that are formed to further the com-
mon interests of natural persons and all legal systems recognize the existence and
activities of corporations and acknowledge them as non-natural legal persons
(Muchlinski, 1999; Dine, 2000). Therefore, the notion of 'individuals' could include
all these types of legal person, natural and non-natural.
This chapter takes a broad concept of 'the individual', to include all those natural
and non-natural persons acting separately and as groups.l In effect, it includes most
non-State actors in the international legal system within that concept of 'the indi-
vidual'. The justification for taking such a broad view is that the international
legal system is a State-based system. The role of any non-State actor in this system
is compared with that of the State. Consequently, excluded from this concept of
'the individual' are those entities who have authority and power that is State-like,
such as intergovernmental organizations (eg, the United Nations), armed opposition
groups who control territory (as in Elmi v Australia),2 or sub-State units in a federal
State. In order to clarify as comprehensively as possible the role of the individual in
the international legal system, this chapter considers as wide and as diverse a range of
'individuals' acting within that system as possible.
B. INDIVIDUALS IN THE INTERNATIONAL LEGAL SYSTEM
The international legal system is constructed as a State-based system and the
dominant positivist theories of international law confirm that construction. This view
1 This definition is similar to that adopted under the European Convention on Human Rights, see
Committee of Ministers 2001.
2 Elmiv Australia, UN Committee Against Torture (2000) 7 IHRR 603.
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 301
is that '[s]ince the Law of Nations is a law between States only and exclusively, States
only and exclusively are subjects of the Law of Nations' (Oppenheim, 1905, p 341).
A 'subject' of the international legal system can be considered to be one which has
direct rights and responsibilities under that system, can bring international claims
and, I would argue, is able to participate in the creation, development, and enforce-
ment of international law. Under the dominant view given above, any role of the
individual in the international legal system is purely as an 'object' of that system and
not as a subject. Individuals are objects, either in the same sense as territory or rivers
are objects of the system because there are (State created) legal rules about them, or in
the sense that they are beneficiaries under the system, so that treaties on, for example,
diplomatic persons or commerce, indirectly benefit individuals.
This creation of a binary opposition of 'subject' v 'object' has become part of
the definition of international legal personality. An entity has international legal
personality if it has direct international rights and responsibilities, can bring
international claims, and is able to participate in the creation, development, and
enforcement of international law, ie, if it is a subject of the international legal
system. The International Court of Justice (ICn clarified the issues of international
personality, and being a 'subject' of the international legal system, in its Reparations
for Injuries Opinion:
The 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 on the needs of the community. Throughout
its history, the development of international law has been influenced by the requirements of
international life, and the progressive increase in the collective activities of States has already
given rise to instances of action upon the international plane by certain entities which are
not States ... In the opinion of the Court, the [UN] Organisation was intended to exercise
and enjoy, and is in fact exercising and enjoying, functions and rights which can only be
explained on the basis of the possession of a large measure of international personality and
the capacity to operate upon an international plane ... That is not the same thing as saying
that it is a State, which it certainly is not, or that its legal personality and rights and duties are
the same as those of a State ... It does not even imply that all its rights and duties must be
upon the international plane, any more than all the rights and duties of a State must be upon
that plane. What it does mean is that it is a subject of international law and capable of
possessing international rights and duties, and that it has capacity to maintain its rights by
bringing international claims. 3
This is an important statement of international legal principles. It directly links being
a subject of international law with international legal personality. It clarifies that there
can be subjects of the international legal system that are not States, these subjects do
not all possess the same rights and duties, and that not all of these rights and duties
need be on the international plane alone. It also explains how the international legal
system has developed, and continues to develop, in ways that allow non-States to have
international legal personality and so to act independently in the international legal
3 Reparation for Injuries, Advisory Opinion, Ie! Reports 1949, p 174 at pp 178-179.
302 ROBERT McCORQUODALE
system. In that Opinion the ICJ applied these principles to the position of the UN
itself to decide that it did have international legal personality. A later ICJ decision 4
has applied these principles to other international (intergovernmental) organizations.
While some writers argue that the Reparations for Injuries Opinion only applies to
State-created bodies such as the UN (Orakhelashvili, 2001), this Opinion clearly sets
out broad principles that could be applied to any non-State actor on the international
plane. It recognizes that, while the State is the primary subject of the international
legal system, the subjects of that system can change and expand depending on the
'needs of the [international] community' and 'the requirements of international life'.
It does not say whether these 'needs' and 'requirements' are solely determined
by States (as the dominant theories of international law would suggest) or by other
means-as 'the international community' should include States and non-States. Yet
it certainly indicates that there can be subjects of the international legal system that
are not States.
Some jurists have argued that, rather than the State being the primary 'subject' of
the international legal system, the primary 'subject' is the individual (Scelle, 1948).
They argue, for example, that individuals are the real actors beneath the State, as the
State itself does not exist without individuals. Individuals are necessary for an entity
to be recognized as a State, in the sense that an entity must have 'a population' to be a
State. In addition, the State is a legal fiction and it cannot act by itself. Individuals
and groups act on behalf of the State and in the State's name. s Thus individuals are at
the very core of the international legal system, no matter how that system is defined.
A variation on these ideas is that of Hersch Lauterpacht, one of the most influential
British international lawyers of last century, who argued that individuals could
become subjects of the international legal system. He considered that the claim of
the State to unqualified exclusiveness in the field of international relations was not
tenable, especially as:
Fundamental human rights are rights superior to the law of the sovereign State ... [and
must lead to the] consequent recognition of the individual human being as a subject of
international law (Lauterpacht, 1950, p 72).
Allott adopts an even broader view in which he sees international society not as being
comprised of States but as arising from the 'self-creating' of all human beings (Allott,
1992). So these writers would argue that the nature of the international legal system
and the 'needs' of the international community have meant that individuals are
subjects-the primary or only subjects-of the international legal system.
The 'subject' v 'object' dichotomy has been criticized by a number of writers, not
least because it privileges certain voices and silences others (eg, Koskenniemi, 1989;
Charlesworth and Chinkin, 2000). Rosalyn Higgins, now a judge of the ICJ, offers an
4 Legality of the Use ofNuclear Weapons in Armed Conflict, Advisory Opinion, IC] Reports 1996, p 66.
S Though the individual, in his private capacity, remains distinct from the actions he takes on behalf of the
State (Geuss, 2001).
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 303
alternative approach, arguing that 'the whole notion of "subjects" and "objects" has
no credible reality, and, in my view, no functional purpose. We have erected an
intellectual prison of our own choosing and then declared it to be an unalterable
constraint' (Higgins, 1994, p 49). Rather she prefers the idea of the 'participant' in the
international legal decision-making process. She explains this by use of an example:
The topics of minimum standard of treatment of aliens, requirements as to the conduct
of hostilities and human rights, are not simply exceptions conceded by historical chance
within a system that operates as between States. Rather, they are simply part and parcel of
the fabric of internationai law, representing the claims that are naturally made by individual
participants in contradistinction to state-participants (p 50).
Under this view there are many participants in the international legal system, in the
sense that there are many different entities, from States and international organiza-
tions to transnational corporations and natural persons, who engage in international
activity (or 'upon an international plane' to use the ICfs words). Participation may
be extensive and over a wide range of international matters or it can be limited to a
few issues. Participation will depend on the particular area of the international
legal system concerned and the activity and involvement of entities in that area, rather
than on the determination by States as to whether any non-States are 'subjects' for a
specific purpose. Acknowledging these different degrees of participation in the inter-
national legal system is consistent with the position in most national legal systems,
where different areas of law will involve different participants, from company law to
family law. As the international community changes and the 'needs' or areas governed
by international law develop, then so will participation in the international legal
system.
This argument for considering individuals as 'participants' in the international
legal system, rather than as 'objects' or 'subjects', is a compelling and practical one
and does not require an adoption of Higgins's broader conception of the inter-
national legal system. Indeed, the notion of participation as a valuable framework to
explore involvement in the international legal system (and thus as a means to deter-
mine if individuals have a voice in the system) has been applied effectively by Knop
from a different conceptual standpoint to that of Higgins (Knop, 2002). Participation
as a framework for considering the role of individuals is flexible and open enough to
deal with developments in the international legal system over the centuries and is not
constricted to a State-based concept of that system or to appearances before inter-
national bodies. It falls within the broad legal principles expressed by the ICJ in
its Reparations for Injuries Opinion. At the same time, it is still consistent with the
dominant State-based concept of the international legal system, as participation in the
system could be viewed as largely dependent on State consent. But it is also applicable
to other conceptual ideas of the nature of the international legal system and of the
nature of international legal personality. For example, in relation to the latter issue:
Personality is emphatically not a prerequisite for the ability to act under international law,
nor do any Hofeldian rights, privileges, powers or immunities, follow automatically from it.
 ROBERT McCORQUODALE
Indeed, if anything, it appears to be the other way around: the existence of certain rights,
privileges, powers or immunities may lead to the conclusion that the entity concerned may
be classified as an international legal person (Klabbers, 1998, p 253).6
Therefore, if it can be shown that individuals are exercising and enjoying 'in fact'
(to use the ICrs words) certain rights, privileges, powers, or immunities in the inter-
national legal system then they can be presumed to be acting as international legal
persons.
It is the extent of that participation in the international legal system by individuals,
and the State's role in determining the degree of participation, that will be considered
in this chapter. This will be examined by reference to the direct rights and responsi-
bilities of individuals under the international legal system, their capacity to bring
international claims and their ability to participate in the creation, development, and
enforcement of international law as independent participants.
II. INTERNATIONAL RIGHTS
AND RESPONSIBILITIES
A. INDIVIDUAL RIGHTS
The Permanent Court of International Justice (PCIn had to consider in the Jurisdic-
tion of the Courts of Danzig whether it was possible for individuals to have rights
under international law. They held:
[I]t cannot be disputed that the very object of an international agreement, according to the
intention of the contracting parties, may be the adoption by the parties of some definite
rules creating individual rights and obligations and enforceable by the national courts?
While this Opinion confirmed that individuals can have rights in the international
legal system, these rights will not all be of the same nature. As Hohfeld (1913) demon-
strated,.a 'right' can mean a claim-right, a privilege, a power, or an immunity (or a
number of these at once). In some instances, the right of the individual within the
international legal system is of the nature of the ability to bring a claim (a claim-right)
against the State (see further below). However, many of the rights of individuals in the
international legal system are more in the nature of either an immunity from action
against them, such as those that arise due to their status as prisoners of war, or a
privilege, such as the liberty to travel on the high seas without interference. In the
same way, States have a variety of rights within the international legal system, not all
of which enable claims to be brought (eg, International Law Commission, 2001). The
rights of individuals and the rights of States in the international legal system are not
6 'Hofeldian' rights, privileges, powers, or immunities are explained in the next section.
7 Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928, PCIJ, Ser B, No 15, pp 17-18.
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM
identical but, whilst they may overlap or interact (such as under international
humanitarian law in relation to use of force on a territory affecting combatants and
non-combatants), they are distinct rights.
The area where individual rights are most developed is in relation to human rights,
which include both rights of individuals and of groups, and which are now a m~tter of
international law. At one time governments dealt with those within their jurisdiction
as they wished and resisted all criticisms of their actions by claiming that human
rights were matters of 'domestic jurisdiction' (under Article 2(7) UN Charter) and
the responsibility of each State alone. However, human rights are now an established
part of the international legal system with an institutional structure, including super-
visory mechanisms to check compliance with legal obligations, and with a defined
content of human rights. Every single State has ratified at least one treaty containing
legal obligations to protect human rights. Human rights issues are raised in political,
economic, social, and cultural interactions across the world, in a global way (Falk,
1993). Human rights, as law, are part of the discourse of the international community
as it speaks to the elites and to the oppressed, to institutions and to communities.
Importantly, all States have acknowledged that 'the promotion and protection of all
human rights is a legitimate concern of the international community'. 8
This acknowledgement that human rights are a legitimate concern of the inter-
national community has a direct effect on State sovereignty (Reisman, 1990), in that
one aspect of each State's control and authority over its activities on its territory and
within its jurisdiction is now subject to international legal review. This applies when
a State has expressly agreed to this review by ratifying a treaty protecting human
rights. It also applies when the protection of a human right has become a matter of
customary international law or jus cogens, which can happen without a State having
any express practice on the issue. Some human rights create legal obligations on States
that the State cannot evade by contrary practice. For example, the ICJ took the view
that South Africa was bound by international obligations in relation to racial dis-
crimination despite its clear contrary practice 9 and also that all States must comply
with the right of self-determination. 10
States have, by treaty and other practice, placed human rights for individuals
(including groups of individuals) within the international legal system. There are
problems with the way international human rights law has been created, such as
the conception that rights are only held in relation to a centralized State (Otto,
1997) and the exclusion of non-State actors from direct responsibility for human
rights violations (Clapham, 1993; Addo, 1999; McCorquodale and La Forgia, 2001).
8 Vienna Declaration (1993), para 4 (1993) 32 1LM 1661. Similar statements are found in the Concluding
Document from the Moscow Conference on the Human Dimension of the Conference on Security and
Co-Operation in Europe (CSCE) (now OSCE) (1991) 301LM (1991) 1670.
9 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971,
p 16, paras 21-22.
10 East Timor Case (Portugal v Australia), Judgment, ICJ Reports 1995, p 90.
306 ROBERT McCORQUODALE
Nevertheless, international human rights law is significant in terms of demonstrating
that individuals have rights within the international legal system.
Individuals also have rights in the international legal system outside the specific
context of international human rights law. For example, within international humani-
tarian law, individuals have certain rights depending on their status as, for example,
prisoners of war or non-combatants. Many of these individual rights are now con-
sidered to be customary international law or even jus cogens. The rights of individuals
within the international legal system were all initially determined and placed with that
system by States. States decided and agreed that these rights were rights within that
system and not solely rights within a national legal system. Koskenniemi concludes
from this that the creation of these rights of individuals by States, particularly within
international human rights law, affirms the position of States as the sole rights-holder
in the international legal system:
By establishing and consenting to human rights limitations on their own sovereignty,
. states actually define, delimit, and contain those rights, thereby domesticating their use
and affirming the authority of the state as the source from which such rights spring
(Koskenniemi, 1991, p 406).
This is a powerful argument. However, as demonstrated above, each State no longer
has complete control over the continuance, development, and interpretation
of individuals' rights, and the rights of individuals are distinct from the rights of
States. Thus a number of the rights of individuals in the international system are
now, to some extent, separate from the specific control and direction of States,
at least as they are protected by customary international law (and some by jus
cogens), and are independent rights within the international legal system. It can be
concluded, therefore, that individuals have some distinct rights in the international
legal system.
B. INDIVIDUAL RESPONSIBILITY
Responsibility in the international legal system is generally considered to mean a legal
obligation that, if breached, can give rise to international consequences (International
Law Commission, 2001). Even though individuals have been a part of international
activity for centuries, from trading to colonizing, generally the actions of individuals
did not give rise to any international responsibility on them; it only arose when those
actions were attributed to the State and then the State was internationally responsible. II
The development of individual responsibility for certain crimes under both inter-
national criminal law and international humanitarian law illustrate the lineage of
individual responsibility in the international legal system, with both piracy and
slavery also seen as offences against the whole international community, for which
individuals were directly responsible (Ratner and Abrams, 2001). The justification
II See United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3.
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 307
for this was that 'the pirate and the slave trader ... [are each] hostis humani generis,
an enemy of all mankind'. 12 Individuals, even when acting as part of the organs of
the State and under orders from the State, are independently responsible within
the international legal system for certain actions. This was neatly summarized by the
Nuremberg International Military Tribunal:
Crimes against international law are committed by men, not by abstract entltles [of
States]' and only by punishing individuals who commit such crimes can the provisions
of international law be enforced. 13
This individual responsibility has recently begun to be enforced through international
tribunals and will be in the future by international criminal courts. Prior to this,
the individual responsibility still existed, and was occasionally enforced in national
courts,14 even though no international judicial body enforced it. In the same way State
responsibility exists even where no other State takes action to enforce it (such as seen
in the lack of any legal action after the Chernobyl nuclear power plant explosion) .
Thus, even though it was necessary for States to agree to the decisions or treaties that·
created these recent international criminal. tribunals and courts, the individual
responsibility under international law still existed independently of these agreements.
The responsibility arose through customary international law and no one State now
has the ability to limit this responsibility, at least with acts such as piracy and
genocide.
Thus the importance of the responsibility of individuals for international crimes is
that it demonstrates that there are some actions by individuals that lead to direct
international responsibility on an individual. The individual is responsible without
any need to link the individual with the State. This draws a clear distinction between
the individual and the State in terms of international responsibility.
III. INTERNATIONAL CLAIMS
A. BRINGING INTERNATIONAL CLAIMS
The conceptual understanding that individuals have rights and responsibilities in
the international legal system does not automatically mean that they have the ability
to bring international claims to assert their rights or are able to claim an immunity to
prevent their responsibilities being enforced (Hohfeld, above). Thus the PCU declared
that 'it is scarcely necessary to point out that the capacity to possess civil rights does
12 Filartiga v Pena-lrala, 630 F.2d 876 (1980), Second Circuit of the US Court of Appeals.
13 Nuremberg Judgment, 22 Trial of the Major War Criminals before the International Military Tribunal
466 (1948).
14 eg, Attorney-General of the Government of Israel v Eichmann (1961), 36 ILR 5.
 ROBERT McCORQUODALE
not necessarily imply the capacity to exercise those rights oneself'. IS Instead, the
conclusion reached by most jurists is that 'individuals are extremely handicapped
in international law from the procedural point of view' (Higgins, 1994, p 51). Many
of the international institutions that determine claims, such as the ICJ, are barred to
individuals, even though a significant number of their cases arise from actions by,
or against, individuals. This was seen most starkly in the East Timor case I6 where the
claims of the East Timorese themselves could not be brought to, or directly considered
by, the ICJ.
Traditionally, the only means available for individuals to bring a claim within the
international legal system has been when the individual is able to persuade the gov-
ernment to-bring a claim on the individual's behalf. Even then, it is not the individual's
international rights that are being asserted but the State's own rights, as the PCIJ noted:
[I]n taking up the case of one of its nationals, by resorting to diplomatic action or inter-
national judicial proceedings on his behalf, a State is in reality asserting its own right, the
right to ensure in the person of its nationals respect for the rules of international law. 17
The justification that a State has to assert this type of claim is through the linkage of
nationality.I8 The international legal system has developed intricate rules regarding
the nationality of people in terms of their relationship to States, as determined by
the degree of connection individuals have to the territory of a State. Even then, this
nationality connection may be insufficient if there are other international rules that
override it or if the State chooses not to take action. Indeed, the ICJ has stated
that' [t]he State must be viewed as the sole judge to decide whether its protection will
be granted, to what extent it is granted, and when it will cease' and '[s]hould the
natural or legal persons on whose behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international law' .19
This position, by which the individual could not assert claims directly to inter-
national bodies, began to change during the twentieth century. A series of
international bodies were established in the early part of that century as a means to
settle conflicts between States and included in their powers was the ability to con-
sider claims by individuals. These bodies included the Central American Court of
Justice, the Mixed Arbitral Tribunals in Europe, the minority protections offered
by the League of Nations, and the dispute mechanisms of the International Labour
Organization (Menon, 1992). In the 'second half of that century, the vast growth of
international human rights supervisory bodies and international commercial arbitral
15 Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribuna~ Judgment, 1933, PCI],
Ser A/B, No 61, P 208 at p 23l.
16 East Timor Case (Portugal v Australia), Judgment, ICJ Reports 1995, p 90.
17 Panevezys-Saldutiskis Railway, Judgment, PCI],Ser AlB, No 76, P 4. Cf LaGrand (Germany v United States
ofAmerica), Merits, Judgment, ICJ Reports 2001, para 42.
18 There are some instances where a State might be able to bring a claim on behalf of the international
community: see International Law Commission (2001), Article 48.
19 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3,
paras 78-79.
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM
bodies has taken the issue of individuals bringing international claims to a higher
levepo
Rather than set out the detailed provisions of the large number of treaties or other
documents that enable individuals to bring claims in an international context, this
section will summarize the main aspects of the key areas of international law in which
individuals can bring claims: international human rights law and international eco-
nomic law. However, it should be noted that individuals can also bring international
claims in other areas: thus victims of violations of international criminal law may
seek reparations, under Article 75 of the Statute of the International Criminal Court
(Schabas, 2001), and employees of some international organizations may bring claims
against that organization to an international body (Gray, 1987).
B. INTERNATIONAL HUMAN RIGHTS LAW
Within international human rights law, a number of treaties permit individuals to
bring claims against a State alleging violations of their human rights before both
international and regional bodies. In addition, procedures developed by the UN
Economic and Social Council allow individuals to bring complaints to the Sub-
Commission on the Promotion and Protection of Human Rights about any State
party to the UN Charter, as do procedures developed by UNESCO and the OSCE.
This is an extraordinary development in the international legal system away from
a position in which a State's actions on its own territory were not subject to inter-
national review. Claims can be brought by individuals against the State of which they'
are a national and against a State in whose jurisdiction they happen to be, even if
21
temporarily, irrespective of whether they are a national of that State. In most
instances, the individual is a direct party to the proceedings before the international
body (with most proceedings being conducted by written submissions). Decisions
can be made, or 'views' given, by international bodies in which States are found to
be in violation of their human rights obligations and remedies are indicated. These
remedies range from monetary compensation to ordering the State to conduct
investigations into the violations (Shelton, 1999).
Despite all of this, the State is still an intermediary, or directly involved in, these
international claims by individuals. Such claims cannot be brought unless the relevant
State has ratified the relevant treaty (whether a human rights treaty or a treaty estab-
lishing an international organization, such as the United Nations Charter, which
facilitates claims by individuals) or accepted the relevant Article of the treaty that
allows individuals to bring the claim. In addition, no international claim can be
brought by an individual unless he has exhausted domestic remedies in the relevant
State. The reason for the latter is to enable States to resolve the issues at national level
20 See the International Law Commission Reports on Diplomatic Protection and its changes over time:
UN Doc A/CNAI484 (1998) and UN Doc A/CNA!S06 (2000).
21 eg, Soeringv United Kingdom, Judgment of7 July 1989, ECtHR, Ser A, No 161; 11 EHRR 439.
 310 ROBERT McCORQUODALE
first, with the international bodies only being involved after all proceedings or other
action at the State level have been effectively exhausted. Thus, in principle, there is no
independent ability for individuals to bring claims before international human rights
bodies.
Nevertheless, there are some aspects to these individual claims that show, in
practice, some independent ability for individuals to bring international claims in this
area. First, there is increasing expectation that States parties to some human rights
treaties, particularly the ECHR and the ACHR, will allow individuals to bring claims
no matter what the State may wish: indeed, the ECHR was amended by its 11th Protocol
(in force, November 1998) so that the right of individual petition was no longer
optional for States parties. This had in fact been the position since the early 1990s,
as an undertaking to ratify the ECHR was a precondition of admission to the Council
of Europe. Consequently, as at May 2002, forty-three States have ratified the ECHR,
allowing about 800 million individuals the right to bring international claims under
that treaty (Committee of Ministers, 2001).
In addition, ratification of the ECHR is a requirement before a State can be party
to the European Union (Treaty on European Union, Article 6; Nowak, 1999). Thus, in
practice, European States are no longer able to prevent individual claims under that
regional human rights system. Further, even if a State is not party to a particular
human rights treaty, some international bodies, such as the Inter-American Com-
mission on Human Rights and the UN Commission on Human Rights, can still,
on the basis of individuals' claims revealing 'a consistent pattern of gross and reliably
attested violations of human rights', make public conclusions about that State's
human rights record.
Second, the link between nationality and the ability to bring claims is no longer
essential. The link is now jurisdiction. If a State has jurisdiction over an individual,
including where that individual is not a national· of that State or even if that State's
jurisdiction over the individual is unlawful,22 then an individual can bring a claim
against that State if that State has ratified a relevant human rights treaty. The State
of which that individual is a national does not have to be a party to the treaty and the
individual could be a stateless person. This has meant that, in practice, States are now
subject to a wider number of claims by individuals before international bodies. This
represents 'a momentous advance in the world community' (Cassese, 1986, p 102).
Third, these treaties give individuals the procedural capacity to bring inter-
national claims. While this is a restricted capacity as it is dependent on State consent
(as seen above), it does have significant practical effects. States rarely ignore the
individual's claim to an international body. Rather they often respond to the claim at
some length (though the practice is by no means unive.rsal) especially as, if they
do not respond, the international body will still consider the matter, as there is some
onus on the State to prove that there has been no violation. 23 When an intern:ational
22 Loizidou v Turkey, Judgment of3 March 1995, ECtHR Ser A, No 310; 20 EHRR 99.
23 Bleirv Uruguay (1982) 1 Selected Decisions of the Human Rights Committee 109.
--
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 311
human rights body reaches a conclusion in relation to an individual's claim then
States usually treat this conclusion as a serious matter that requires some response. If
the conclusion is that there is no violation of a human right then the State will ensure
that the media is aware of this. If the conclusion is that there has been a violation, then
the State will respond in some way, from amending the relevant law or practice24
to making a derogation from the relevant provision (should this be possible)25 or
offering a justification for their actions. Sometimes a State will even seek to denounce
the treaty and criticize the international body: Peru, for example, withdrew its accept-
ance of the jurisdiction of the Inter-American Court of Human Rights before later
re-accepting it. Very rarely will the State not respond at all. So these individual claims
are treated seriously by States, in the same way as a claim brought against a State by
another State before an international body is treated seriously.
Finally, the conclusions reached by international human rights bodies about indi-
vidual claims can have practical effects on a State through the adoption of those
conclusions by national courts26 and by other international bodies whose decisions are
legally binding on a StateY The latter is seen in the approach taken by the European
Court of Justice, which decided that 'respect for fundamental [human] rights forms
an integral part of the general principles of [European] Community law protected by
the Court of Justice'.28 Thus the practical effects of individuals being able to bring
claims before international human rights bodies are such as to place effective limits
upon a State's ability to control or restrict those claims. The State's role as an inter-
mediary, or barrier, between the individual and an international human rights body,
whilst still crucial for an individual to be able to bring a claim is, in practice,
permeable.
C. INTERNATIONAL ECONOMIC LAW
One of the areas of significant growth in the international legal system since the latter
part of the twentieth century has been international economic law. Part of this
growth has included the creation and development of mechanisms by which
individuals, usually corporations, can bring claims against States. These mechanisms
were initially ad hoc arbitration bodies and inter-State bodies to which individuals
had access, for example, the Iran-US Claims Tribunal and the United Nations Com-
pensation Commission. They now include institutional bodies (both treaty-based
and non-treaty based) with established procedures, such as under the International
24eg Sunday Times v UK, Judgment of 29 April 1979 ECtHR, Ser A, No 30; 2 EHRR 245.
25eg Brogan v United Kingdom, Judgment of 29 November 1988, ECtHR, Ser A, No 135-B; 11 EHRR 117.
26As in R v Bow Street Metropolitan Stipendiary, ex parte Pinochet Ugarte (Amnesty International
Intervening) (No 3) [2000] 1 AC 147; [1999} 2 All ER 97.
27 The website of the European Court of Human Rights has a list of legislative measures taken by States as
a consequence of decisions by that Court www.echr.coe.intlEnglEDocs/EffeetsOfJudgments.html. See also
Schermers,1999.
28 Internationale Handelsgesellschaft [1970] European Court of Justice Reports 1125, para 4.
--~------------ -------
 312 ROBERT McCORQUODALE
Chamber of Commerce and the International Centre for the Settlement of Invest-
ment Disputes and through the model law of the United Nations Commission on
International Trade Law. .
Each of these mechanisms allows individuals to bring claims against a State to an
international body, which makes a decision, usually legally binding and enforceable,
in relation to the claim (Redfern and Hunter, 1999). The ability of an individual to
bring an international claim against a State was considered by Arbitrator Dupuy in
Texaco v Libya to show the international legal personality of an individual:
[S]tating that a contract between a State and a private person falls within the international
legal order means that for the purposes of interpretation and performance of the contract, it
should be recognized that a private contracting party has specific international capacities.
Bu~, unlike.a State, the private person has only a limited capacity and his quality as a subject
of mternatIonal law does enable him only to invoke, in the field of international law, the
rights which he derives from the contract.19
While Dupuy's reasoning is consistent with that of the ICJ in the Reparations Opinion
in r~lation to the ability of non-State actors to have internatia"nal legal capacity for
specIfic purposes and functions, it does not completely reflect the position today.
Most of the disputes between individuals and States in this area are now resolved
by a combination of public and private international law (Sornarajah, 1997), with
decisions of international bodies enforced through national law, often as a con-
sequence of a treaty obligation (such as the New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards 1958).
In international economic law, as with international human rights law, it is the State
that enables the individual to bring a claim either by ratifying the relevant treaty and/
or through a contract agreed specifically by the State with the individual. However,
~ this ~rea of l~w the ability of the State to refuse to allow individuals to bring
mternatlOnal claImS is often quite limited. In many instances the State, particularly a
developing State, has little ability to resist an individual's (usually a transnational
corporation) request to be able to bring an international claim (or ratify the relevant
treaty to enable such a claim to be made). This is because the economic power of such
individuals is far greater than that of many States (McCorquodale, 2002). In addition,
many economically powerful States will place pressure on other States to allow
(eg, by ratifying the relevant treaty) individuals to bring these claims due to the power
of the individual in that economically powerful State. For example, in a case between a
company (Santa Elena) with a majority of US shareholders and Costa Rica before an
ICSID Arbitral Tribunal, it was stated that 'a $US175,OOO,OOO loan Inter-American
Development Bank to Costa Rica was delayed at the behest of the US until Costa Rica
consented to refer the Santa Elena case to international arbitration'.30
In addition, many of the claims brought by States to international economic legal
;~ Texaco Overseas Petroleum Company v Libyan Arab Republic (1977), 53 ILR 389.
Santa Elena v Costa Rica, ICSID Final Award, 17 February 2000, para 25.
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM' 313
bodies, such as under the dispute settlement procedures of the World Trade Organiza-
tion, are initiated, sponsored, and prosecuted in effect by the individual corporations
that are affected by the trade action that is the subject of the claim (Croley and
Jackson, 1996; Charnovitz, 2001). Further, the World Bank has created an Inspection
Panel, which allows individuals who believe that they will be affected detrimentally
by a project in a State that is to be funded by the World Bank to ask the Panel to
investigate their claim (Resolution No 93-6, 1993). The Bank can do this even if the
State is opposed to such investigation. A similar system is operated by the Asian
Development Bank and the Inter-American DeVelopment Bank. This pressure from
individuals for more control over international activity in the economic area will
increase with globalization.
The major economic region of Europe provides the opportunity for individuals to
bring claims to an international body. In Van Gend en Loos the European Court of
Justice held:
The [European] Community [now European Union] constitutes a new legal order of inter-
national law for the benefit of which the States have limited their sovereign rights, albeit
within limited fields, and the subjects of which comprise not only Member States but
also their nationals. Independently of the legislation of Member States, Community law
therefore not only imposes obligations on individuals but is also intended to confer upon
them rights which become part of their legal heritage. These rights arise not only where
they are expressly granted by the Treaty, but also by reason of obligations which the Treaty
imposes in a clearly defined way upon individuals as well as upon the Member States and
institutions of the Community.31 .
This decision highlights the limitations on the ability of States to prevent claims by
individuals under European law. Though there are some situations in which the
individual can bring a claim directly to the Court, in fact, the main avenue for
individuals to bring claims under the European Union treaties is in their national
courts (De Witte, 1999). There is also indirect access to the European Court ofJustice,
as most cases are brought to the Court by national courts seeking an interpretation
from the Court in relation to European Union Treaty issues arising in the individual
claim before that national court (Treaty of European Union, Article 234). Whilst
States can withdraw from these European treaties, the practical consequences of
withdrawal from these foundational elements of the European Union are such that a
State's ability to do this has effectively now disappeared.
The ability of individuals (mainly corporations) to bring international claims in
international economic law is now considerable. The main participants in a number
of areas of international economic law are primarily States and corporations and they
are often acting on equal terms. In negotiation of contracts where a transnational
corporation is involved, then an agreement on a dispute settlement mechanism is
vitaL Invariably this will be an international body to which the corporation can bring
31 Van Gend en Loos, European Court ofJustice (1963) 1 CMLR 82,129.
314 ROBERT McCORQUODALE
a claim and obtain an enforceable judgment. For most States that seek to encourage
foreign investment, such an agreement allowing international dispute settlement is
necessary and is not able to be rejected. Thus, to all intents and purposes, individuals
now have an independent capacity to ensure that they can bring an international
claim in some areas of international economic law.
D. IMMUNITIES
It is generally considered that, under the international legal system, only States have
immunities from claims. These immunities can arise through non-acceptance of an
international or a national legal mechanism. In addition, diplomats, heads of state,
representatives of international organizations, and others may have personal immun-
ities arising from their relationship with the State or State-based bodies, even when
acting outside their official roles. Even former Heads of State32 and former Foreign
Ministers33 can have some personal immunity. These latter types of immunity are
personal to the individual concerned and cannot be easily revoked by the State. So it is
possible to see an increasing recognition of the development of an immunity for
individuals separate to that of the immunity of States.
Overall, the development of international law, particularly in the areas of human
rights and economic law, has provided individuals with the ability of make claims to
international bodies and have some personal immunities. In principle this ability
is determined by States and their agreement to certain treaties that provide for
individuals to make claims. But in practice many States are becoming less able to
restrict, or to prevent, individuals having the ability to make international claims.
There are at least some aspects of the international legal system that allow individuals
an effective independent capacity to bring an international claim.
IV. CREATION, DEVELOPMENT, AND
ENFORCEMENT OF INTERNATIONAL LAW
One of the essential aspects of an international legal person is 'the capacity to par-
ticipate in international lawmaking and to enforce rules of international law'
(Orakhelashvili, 2001, p 256). From the classical definition of the sources of inter-
national law found in Article 38 of the Statute of the ICJ, where State practice and
State treaty-making are pre-eminent, to the laws on territory and jurisdiction
being about State boundaries, it is the State that appears to decide exclusively on the
32 R v Bow Street Metropolitan Stipendiary, ex parte Pinochet Ugarte (Amnesty International Interven-
ing) (No 3) [2000] 1 AC 147; [1999] 2 All ER 97.
33 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo/Belgium), Preliminary Objections and
Merits, Judgment, ICJ Reports 2002, p 3.
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 315
creation, development, and enforcement of international law. Even the definition
of which entity is a State is decided (through the process of recognition) by other
States. It is necessary to see the extent to which individuals have been involved in the
creation, development, and enforcement of international law.
A. RIGHT OF SELF-DETERMINATION
One area where the role of the individual can be seen as a challenge to the State-based
system and where individuals have been involved in the creation, development, and
enforcement of international law is with respect to the right of self-determination.
Article 1 of both the International Covenant on Economic, Social and Cultural Rights
and the International Covenant on Civil and Political Rights provides that 'all peoples
have the right of self-determination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural development'.
This right is a collective right, that is, a right of a group of individuals as a group.
Its importance in relation to this chapter is that it is a part of the international
legal system where the priority is given to groups of individuals and not to States.
Whilst the definition of the right of self-determination, including its limitations, have
been drafted by States and a number of decisions about its exercise, such as whether
to recognize a self-determining entity as a State, are decided by States, much of its
development has been by groups of individuals acting as a group.
This can be shown in a number of ways: from its original focus in the early part
of the twentieth century on minorities within and across States; its development
beyond a legal justification for decolonization (which operated largely within a State-
based structure) to its application outside the colonial context to independent States
and internal self-determination; and its emphasis on the right of the people to decide
their own destiny (McCorquodale, 1994). Some of these aspects were explained by
Judge Nagendra Singh in the Western Sahara Opinion, when he said that:
[T]he consultation of the people of a territory awaiting decolonization is an inescapable
imperative ... Thus even if integration of territory was demanded by an interested State, as
in this case, it could not be had without ascertaining the freely expressed will of the people-
the very sine qua non of all decolonization. 34
Indeed, the British government, one of the largest colonizers, went further when it
stated:
[A]s the [United Nations] Charter and the two International Covenants expressly declare, [it
is] a right of peoples. Not States. Not countries. Not governments. Peoples. 35
It can be seen that 'the peoples in whom [the] right is vested are not inherently or
necessarily represented by States or by governments of States' (Crawford, 1988, p 166).
34 Western Sahara, Advisory Opinion, ICJ Reports 1975, p 12 at p 81.
35 Statement by the United Kingdom representative to the United Nations Commission on Human Rights
(Mr H Steel), 9 February 1988 (1988) 59 BYIL 441.
 ROBERT McCORQUODALE
In fact, so successful have groups of individuals been in relation to the right of self-
determination that new States have arisen despite the expressed wish of some very
powerful States that this should not happen (eg, in the early stages of the break-up of
the former Yugoslavia) and States are now forced to accept that self-determination
applies to groups within States. 36 Indeed, it could be considered that the right of
self-determination has changed the international legal system significantly as even
the elements taken into consideration as to whether an entity is a State now include
whether that entity complies with the right of self-determination. With all the restric-
tions that States can bring to the exercise of the right of self-determination, its
development has been beyond the control of States and its enforcement has frequently
been due to the persistence of individuals and not of States, which largely remain
unwilling participants in this area. The participation of peoples in this area opens the
possibility of a less State-based and territorial idea of the right of self-determination
(Marks, 2000; Young, 2000; Knop, 2002). The power of the people is expressed by
Judge Ammoun in the Namibia Opinion:
Indeed one is bound to recognize that the right of peoples to self-determination, before
being written into charters that were not granted but won in bitter struggle, had first been
written painfully, with the blood of the peoples, in the finally awakened conscience of
humanity.37
The most recent example of this has been the exercise of the right of self-
determination of the people of East Timor, who, despite years of bloodshed,
oppression, subjugation, and occupation by States with the tacit or express consent
of other States, celebrated their independence as a new State on 20 May 2002.
B. INDIGENOUS PEOPLES
Another area of international law where the (conscience of humanity' has been
awakened is in relation to indigenous peoples. Although their international legal
status had been acknowledged in the sixteenth century and some national courts
considered them as communities distinct from States, it was not until late in
the twentieth century that substantial renewed consideration was given to their
position in the international legal system (Anaya, 1996). Most significantly, the Sub-
Commission of the UN Human Rights Commission established a Working Group in
Indigenous Populations in 1982. This Working Group comprised many representa-
tives of indigenous peoples, who could participate fully in the drafting of, what
became, the UN Draft Declaration on the Rights of Indigenous Peoples 1994. This
Draft has been resisted by a number of States and until States agree on its terms it will
not become a UN Declaration. This is because States still have final control over the
36 Reference Re Secession of Quebec, Canadian Supreme Court (1998) 37 ILM 1340.
37 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, IC] Reports 1971, p 16 at p 74.
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 317
terms of any international documents on indigenous peoples. But its importance lies
in the fact that the process of the creation and development of this Draft has largely
been outside the sole control of States. It was drafted with a significant degree of
participation by indigenous peoples, who were, in the drafting process, acting
on almost equal terms to State representatives. This process was revolutionary in
the United Nations system (Lim, 2000).
Process and procedure, as discussed in relation to human rights, are significant
aspects of the international legal system in terms of clarification of the partici-
pants in that system. In addition, despite the lack of any legal obligations arising
from the Draft, as it is only a Draft Declaration, it is being referred to con-
tinuously and seriously in the international community as a starting point (or
more) for international legal acknowledgement of the rights and status of indigenous
peoples. It has become a starting point for the development of international law in
this area.
c. NON-GOVERNMENTAL ORGANIZATIONS
The participation of individuals, usually as groups or peoples, in the creation, develop-
ment, and enforcement of international law in the areas of self-determination and
indigenous peoples has been fostered by the growing role of non-governmental
organizations (NGOs). These organizations, which are part of international civil
society (Cullen and Morrow, 2001), have had an increasingly crucial effect on the
creation, development, and enforcement of many parts of the international legal
system. Even in earlier centuries their role was relevant, as seen in the activities of the
Anti-Slavery Society being crucial to the abolition of slavery and the role of women's
groups (Bianchi 1997). In more recent times NGOs have been important in the
creation of international law, with, for example, NGOs assisting in the drafting of the
Convention on the Rights of the Child (as acknowledged in the travaux preparatoires
of that treaty-Detrick, 1992) and the Convention on the Conservation of Migratory
Species of Wild Animals 1979 (Bowman, 1999), organizing a systematic campaign
towards the adoption of the Convention Against Torture and other related documents
(Van Boven, 1990), the creation of the International Criminal Court (Pace and
Thieroff, 1999) and the banning of landmines (Anderson, 2000), as well as fostering
proposals for the establishment of a UN High Commissioner for Human Rights
(Clapham, 1994).
There are two areas of the international legal system where the law has developed
primarily as a response to the activities of NGOs. These are international humani-
tarian law, where the role of the International Committee of the Red Cross (ICRC)
has been crucial, and issues relating to labour conditions, where trade unions and
employer organizations have played a significant role. The ICRC has the unusual
express acknowledgement of its role in the Geneva Conventions 1949 and the 1977
Protocols. For example, States can entrust the fulfilment of their duties to the
ICRC (Article 10), they must cooperate with the ICRC during conflicts (Article 81)
318 ROBERT McCORQUODALE
and before any proposed amendment by a State to the Protocols can be acted
upon, the ICRC must be consulted (Article 97 Protocol I and Article 24 Protocol II).
Similarly, trade unions and employer organizations are institutionally part of
the International Labour Organization, which has adopted many treaties and
other international documents. Of similar power, but with a less institutional role,
have been the activities of environmental NGOs, who are a vital element in the
creation and sustenance of international environmental law (Cullen and Morrow,
2001).
The roles that NGOs play in relation to the development of international law are
numerous. They include 'elaborating further interpretative rules in connection with
already existing international instruments . . . [which have come to be] referred to
as ... authoritative sources' (Van Boven, 1990, p 357). They are involved in inter-
national decision-making, usually indirectly, by their participation in international
fora, from the UN itself to its agencies and as a distinct part of international confer-
ences. Indeed, NGOs can be 'sought-after participants in a political process ... that
allow NGOs to move from the corridors to the sessions' (Knop, 1993). Sometimes
this participation can be important as a balance against States' views, as seen in the
Bangkok NGO Declaration on Human Rights that appeared successfully to reduce the
impact of the Asian States' Declaration in relation to cultural relativism (Steiner and
Alston, 2000, p 549), and sometimes NGOs act in opposing ways due to their different
objectives (eg, during the Beijing Conference on Women-Otto, 1999). Sometimes
NGOs are essential to the continuing operation of some international bodies, as the
African Commission on Human Rights has acknowledged (Motala, 2002), due to
their provision of information, people, and resources. In the area· of international
environmental law the role of NGOs has been particularly crucial, for example, in
relation to the protection of birds:
[T]he role of [NGOs] has proved to be of vital importance. Not only have they regularly
pressed for the adoption of agreements ... they have frequently shown a willingness to
undertake much of the preliminary drafting work necessary to make such projects a reality.
Insofar as· these agreements, once concluded, have required to be sustained by technical
resources and expertise, NGOs have been prominent in the provision of such support ... [In
relation to one treaty,] one such [NGO] has also provided the administrative infrastructure
for the establishment of a secretariat (Bowman, 1999, p 298).
This extensive role has been recognized with NGOs being parties, with States, to
Memoranda of Understanding (which are not treaties) concerning conservation
measures about particular species, with responsibilities being placed on both States
and NGOs under these Memoranda (Bowman, 1999).
NGOs are also active participants in the enforcement of international law. In many
instances they assist individuals to bring international claims, or bring claims them-
selves, and they provide information to international bodies that will often not be
provided by States. These roles of NGOs are accepted now in practice by States, by
the rules of procedure of the international bodies, and are even specifically referred
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 319
to in some more recent treaties (eg, Article 45 of the Convention on the Rights of
the Child). NGOs have regularly brought amicus curiae information to international
bodies, whereby they have sought to assist the international bodies in making
decisions in cases brought by others against a State. This role is important and could
be extended to the ICJ as: .
[ICI] judgments affect not only the rights and obligations of states parties to the dispute, but
also increasingly the rights and obligations of individuals, justice requires that [NGOs]
representing the public interest have the opportunity to submit information and arguments
to the Court. Such participation reinforces the concept of obligations erga omnes and can
lead to enhancing the role of the Court and the long-term development of international law
(Shelton, 1994, p 642).
At the same time, NGOs and individuals have used national legal systems to enforce
international legal obligations of States (Vazquez, 1992). In addition, NGOs operate
as fact-finding bodies, lobbyists, and advocates in a way that generates publicity
about violations of international law. These can be most effective means of enforcing
compliance with international law by States in an international legal system
where other forms of enforcement are often lacking or rarely operate. NGOs can also
have such a powerful effect on States that some States will act directly against them,
even if this is in breach of international law. For example, the persistent activities
of Greenpeace, an environmental NGO, against French nuclear testing in the South
Pacific led to the French government ordering some of its agents to sink the Green-
peace ship 'Rainbow Warrior' in a New Zealand harbour. As a consequence of
this breach of international law, France had to pay compensation to New Zealand for
interference in its sovereignty (but not to Greenpeace) and send its agents to a remote
Pacific island. 38
It is beyond doubt that NGOs have participated in the creation, development, and
enforcement of international law. They have brought new ideas, sustained focus and
pressure, and effective means of action in the international legal system. They offer an
alternative voice to States, though they share the problems of lack of legitimacy, few
democratic processes, and limited representativeness of many States (Cullen and
Morrow, 2001). They provide a means to hold States and State-based organizations to
account and they seek to increase the transparency of international decision-making.
The importance of their roles has been acknowledged in the European Convention on
the Recognition of the Legal Personality of International NGOs 1991 and the UN
Declaration on the Rights of Human Rights Defenders 1998. Much ofNGO's activity
is only possible because States allow it to happen, such as participation in inter-
national fora, but not all of it is controlled by, or controllable by, States. As a con-
sequence a 'peculiar process of interaction between traditional law mechanisms and
transnational social processes with the mediation of non-state actors has become a
novel method of law-making and law enforcement' (Bianchi, 1997, p 201). NGO
38 Rainbow Warrior Arbitration (New Zealand v France), Special Arbitration Tribunal (1990), 82 ILR 499.
320 ROBERT McCORQUODALE
participation may be a novel method of international law-making but it is now an
accepted method.
D. JURISTS
The role of jurists, or individual writers on international law, has had a long-term
effect on international law. Jurists have been given a special position in the creation,
development, and enforcement of international law with Article 38( d) of the ICJ
Statute authorizing the ICJ to apply 'the teachings of the most highly qualified pub-
licists of the various nations as [a] subsidiary means for the determination of rules
of [international] law'. Their influence can be specific, such as their influence on the
inclusion of persecutions on the basis of gender being considered as crimes against
humanity (Bianchi, 1997), the drafting of the Siracusa Principles on derogations and
the Limburg Principles on economic, social, and cUltural rights, and on decisions
of international bodies (Brownlie, 1998). It can also be general, such as the role of
individual jurists on the various Draft Articles of the International Law Commission.
The roles of jurists as experts on international law, from membership of international
bodies, such as the ICJ and international human rights bodies, to advising States and
being members of expert panels in international organizations (from the World
Health Organization to the Atomic Energy Agency), is also important.
From the earliest philosophers, the understanding of what is the nature of inter-
national law has been a crucial part of the development of rules and principles in the
international legal system. Allott has shown how the ideas of Vattel 'determined
the course of history' (Allot, 1989, p 14) as he propounded a sovereignty theory of the
State, in contrast to the more inclusive 'all humanity' idea that had been expounded
earlier, which now forms the basis of much of the dominant understanding of
international law.
Indeed, much of our understanding of what is the international legal system, and
the role of individuals in it, is affected by the writings of jurists. For example, jurists
who adopt a positivist approach to the international legal system, although consider-
ing that the individual has no independent role from the State, have been important
in identifying rules of customary international law and persuading States that these
rules legally bind them (Oppenheim, 1905). Yet it has been argued that the positivist
concept of international law as a State-based process 'is incapable of serving as the
normative framework for present or future political realities ... new times call for a
fresh conceptual and ethical language' (Teson, 1992, pp 53-54). Some of the fresh
conceptual and ethical language that has been suggested includes the application of
feminist theory to the international legal system, which shows the limitations of the
State as a framework for engagement in gender issues (Charlesworth, Chinkin, and
Wright, 1991) and a recognition that relying on constant binary oppositions, such as
State v non-State, cannot produce a coherent international legal system (Kosken-
niemi, 1989). Others consider that 'the burgeoning canon of individual rights
has begun to crack open the previously encrusted [positivist] Vatellian system'
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 321
(Franck, 1999, P 281) or that the notion of State sovereignty has always been
indeterminate and fluctuating (Kostakopoulou, 2002) so that 'we should adjust our
intellectual framework to a multi-layered reality consisting of a variety of authorita-
tive structures ... [in which] what matters is not the formal status of a participant ...
but its actual or preferable exercise of functions' (Schreuer, 1993, p 453). Others reject
the current conceptual parameters and argue for a new understanding of inter-
national society (Allott, 1990). Each of these conceptual approaches seeks to explain
the law-making processes of the international legal system and, in so doing, offers
reflections on the role of the individual in that system. These approaches have
occasionally been taken up by States and others in ways that have affected the devel-
opment of international law (eg, in ICJ decisions and UN resolutions). A specific
example is found in the speech of the UN Secretary-General, Kofi Annan, on the
award of the Nobel Peace Prize 2001 to him and to the UN:
Over the past five years, I have often recalled that the United Nations' Charter begins
with the words: 'We the peoples'. What is not always recognized is that 'We the peoples' are
made up of individuals whose claims to the most fundamental rights have too often been
sacrificed in the supposed interests of the State or the nation ... In this new century, we
must start from the understanding that peace belongs not only to States or peoples, but to
each and every member of those communities. The sovereignty of States must no longer
be used as a shield for gross violations of human rights. Peace must be made real and
tangible in the daily existence of every individual in need. Peace must be sought, above all,
because it is the condition for every member of the human family to live a life of dignity
and security ... Throughout my term as Secretary-General, I have sought to place human
beings at the centre of everything we do-from conflict prevention to development to
human rights. Securing real and lasting improvement in the lives of individual men and
women is the measure of all we do at the United Nations (Annan, 2001, pp 2-3).
Therefore, it can be seen that, in various ways, individuals have had, and continue to
have, an important part in the creation, development, and enforcement of inter-
national law. This has been by groups of individuals, from peoples with the right
of self-determination and indigenous peoples, to NGOs, as well as the influence of
jurists. It can also be seen in the contribution of women and men throughout the
centuries, who offer new ideas and practical applications in relation to international
law.
V. CONCLUSIONS
The role of the individual in the international legal system remains a contentious one.
It can depend on how the nature of the system is conceptualized and applied, as well
as an understanding of diverse areas of international law. In most cases the crucial
issue is whether the individual has an independent role in the system or whether
the individual's role is solely dependent on State consent.
322 ROBERT McCORQUODALE
THE INDIVIDUAL AND THE INTERNATIONAL LEGAL SYSTEM 323

In approaching these issues, I have adopted a broad definition of the (individual' Actors', in Teubner, G (ed.), Global Law DE WITTE, B, 'The Past and Future of
and suggested that (participation' in the international legal system (as against (subject' Without a State (Aldershot: Dartmouth). the Role of the European Court of Justice
v (object') is the relevant context. This has opened up more possibilities to discover BROWNLIE, I (1998), Principles of Public in the Protection of Human Rights', in
the conceptual and practical role of the individual in the system. It has been shown International Law 5th edn (Oxford: Alston P, Bustelo M, and Henan S, (eds),
that individuals do have considerable international rights and responsibilities in the Oxford University Press). The EU and Human Rights (Oxford:
system; a number of which are independent from a State's ability to control or deter- Oxford University Press).
CASSESE, A (1986), International Law in a
mine them. The vast array of international claims available to individuals are largely Divided World (Oxford: Clarendon Press). DINE, J (2000), The Governance of Corporate
still within the control of States in principle, but not in practice. It is clear that the . Groups (Cambridge: Cambridge Uni-
CHARLESWORTH, H and CHINKIN, C
individual has been a crucial factor in the creation, development, and enforcement versity Press).
(2000), The Boundaries of International
of international law. The 'needs of the [international] community' and 'the require- Law: A Feminist Analysis (Manchester: FALK, R (1993), 'The Making of Global Citi-
ments of internationallife'39 have ensured that the individual has a continuing role in Manchester University Press). zenship', in Brecher J, Childs J, and Cutler
the international legal system. In addition, individuals by their actions influence not J, (eds), Global Visions: Beyond the
- - , - - ,and WRIGHT, S (1991), 'Femi-
only the concept and content of international law but also the way it is applied by nist Approaches to International Law,' 85 New World Order (Mass., US: South End
States and the extent and manner by which a State consents to rules of international Press).
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law. FRANCK, T (1999), The Empowered Self: Law
CHARNOVITZ, S (2001), 'Economic and
Individuals may not yet be participating in the international legal system to the and Society in the Age of Individualism
Social Actors in the World Trade Organ-
same extent as States. But the trend is clear: the role of the individual in this system is ization', 7 ILSA J of International and (Oxford: Oxford University Press).
continuing to expand, often despite the wishes of States. If, as Kofi Annan asserts, the Comparative Law 259. GEUSS, R (2001), History and Illusion in
ultimate foundatibn of the international legal system is 'We, the Peoples', then the role Politics (Cambridge: Cambridge Uni-
CLAPHAM, A (1993), Human Rights in the
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 PART IV

THE SCOPE OF
SOVEREI-GNTY

--~--.~~~-
328

10
JURISDICTION
Vaughan Lowe

SUMMARY
",lts
-/'
Each State has the right to regulate its own public order, and to that end it is entitled to
legislate for everyone within its territory. But States are also entitled to legislate for their
nationals, and some actions extend over national boundaries; and there are accordingly
situations in which two or more States may seek to apply their laws to the same conduct.
This chapter is concerned with the principles of international law that regulate the
right of States to apply their laws to conduct, and with the resolution of disputes
arising from overlapping jurisdictional claims, and also with the problems of enforcing
national laws.

I. INTRODUCTION

A. THE MEANING OF 'JURISDICTION'

. -
'h;rrisdiction' is the term that describes the limits of the legal competence 0~.QL
.,. '. ,.~-....::.--
oili.:er regulatory authority (such as the European Community) to make, apply, and
enforce-rilIes of conduct upon persons. It 'concerns essentially the extent of each
state's right to regulate condl,lCCOI.:thg ~Qnsequences of.eY~!l:~s'.l
States regulate conduct in this sense in various ways, which may involve any of
the branches of government. Thus, the Legislature may lay down rules by statute, or
the Executive may do so by order. Laws on the provocation of religious hatred, and
statutory instruments forbidding the export of certain goods to certain countries,
are obvious examples. Some laws are less obviously prescriptive, but are nonetheless
equally part of the structure of the social order: for example, laws regarding the
qualifications of the acquisition of a State's nationality, or describing the conditions
upon which a person will be liable to pay taxes to the State. States also regulate

1 Oppenheim's International Law, 1992, p 456.

 330 VAUGHAN LOWE
conduct by means of the decisions of their courts, which may order litigating parties
to do or abstain from doing certain things. So, too, may the State's administrative
bodies, which may apply rules concerning, for example, the issuance of licences to
export goods to certain countries. The police, and other law-enforcement agencies,
are also involved, in the arrest and detention of persons, and the seizure of goods.
All of these activities are in principle regulated by the rules of international law
concerning jurisdiction.
T!?-e term 'jurisdiction' is also commonly used in international law to describe the
scope of the right of an international tribunal, such as the InternationarCourt of
justice or the International Criminal Court, to adjudicate upOIf_~ase~~d ·-t~ make
-,iidersln:- respect of the parties to them. In abstra~t-t;r;;~~-th~·J;ri~diction of States
-and-the"jurisdiction of tribunals areb~th instances of the concept of the scope of the
powers of a legal institution; but it is traditional, and practically useful to distinguish
between them and to treat them separately. The jurisdiction of international tribunals
is, accordingly, not treated in this chapter.
B. THE SIGNIFICANCE OF THE PRINCIPLES OF JURISDICTION
_ The lc:.gal rules and principles governing jurisdiction have a fundamental importance
in international relations, becaus~ ..th.~y __are co~_~...!~ the allocation between
'States, and other entities such as the European U~, 5~f.~<?~~ence to regUIat-~ 4@.Y
-n.fe"·~--tha{ is, the competence to secure the differences that make each State a distinct
society. Inasmuch as they determine the reach of a State's laws, they may be said
to determine what the boundaries of that State's particular public order are. For
instance, the rejection by western States of the fatwah issued against Salman Rushdie
was, in essence, a denial that the jurisdiction of the Iranian authorities extended so far
as to regulate conduct in the United Kingdom. 2 There are many other examples of
contested jurisdictional claims, perhaps less spectacular but affecting a much wider
range of interests. For example, the United States has at various times enacted laws
that purport to forbid foreign b~;inesses, based outside the United States, to trade
with certain States, such as the former Soviet Union, Iran, ~d C~~Tho~e liws-have
iffiposed significant economic costs and disadvantages on non-Us co~p~ie;~~d
they raise the question of the propriety-indeed, thelegalliY=oroneStite pur-
porting to forbid persons in another State to do things that are perfectly lawful in the
State where those persons are located.
Similarly, as the principles governing jurisdiction define the limits of the State's
coercive powers, they effect one of the most important delineations of the different
2 It appears that it was technically a religious authority, rather than what in western terms would
be thought of as a typically 'governmental' authority, that issued the fatwah. This raises the interesting
question of the limits of the notion of 'the State' for the purposes of State responsibility. On this question
see Part V of this book and see United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports
1980,p 3.
JURISDICTION 331
societies into which the world is divided. It is these principles that dictate, for
example, that the British authorities have no right to operate in French territory in
order to regul~te the conduct of asylum-s~ek~rs at Sa~g-;:tte, and that the Scottish
_._ courts have no right to sit in the Netherlan~. It ~~-~~~~~;ry for France -~d ·th~--
y-nited Kingdom to conclude an_ agr~~ all~~g th~~stoms and immigration
~ officers of each to operate ~_.!he._i~r!t9ry ~(t!?-_e_<:l!her in. relation to the Channel
T.YllDd.._and for the Netl}._t:!.r.land~_~4.!heJ!E:~~~~_gdo~_!~ coridiide--an-~g~~ement­
t9_.p~xmit the~tish c.<2.~!_!~~~t at Camp Zeist in th~-Neth~~l~-dst~·h-;;~~the·cases·
~ainst the Libyan nationals accuse9-~f._blQ..wips.lJ.-p_~_y? cie-i9Pl~e iI1:!J?_e._s~es above
Lockerbie in Scotland. 3
. . . - ....... -
~------~----
In view of its significance, it is not surprising that the principles governing juris-
diction have attracted considerable attention from jurists over the years. In fact,
however, international controversy over the limits of jurisdiction, which was intense
in four or five decades after 1945, seems to have abated somewhat during recent years.
Before turning to the examination of those principles in detail, it is necessary to
say a word about the framework within which jurisdictional principles are analysed by
international lawyers.
C. THE DOCTRINAL ANALYSIS OF JURISDICTION
Luris~~~~~.~.'. as a top~c o~~~as a l:ss solid and universal basis than is
often supposed. EnglIsh-language monographs typICally devote a chapter to the topiC,4
as they have done since the late nineteenth century,s continental monographs,
on the other hand, have tended to adopt a rather different approach, regarding
jurisdiction as an aspect of statehood or territo!Y, or the law of the sea or of some
other aspect of international law. There--is, on this continental approach, no com-
prehensive, consolidated statement of all of the principles of jurisdiction. 6 It is notable
that there is, for example, no volume devoted to jurisdiction in Verzijl's great treatise,
International Law in Historical Perspective. That pattern appears to be changing. In
1968 the Council of Europe produced a Model Plan for the Classification of Documents
concerning State Practice in the Field of Public International Law,? which distributed
the treatment of jurisdiction under a number of different headings, including
'Personal Jurisdiction', 'State Territory and Territorial Jurisdiction', and 'Seas, Water-
ways, Ships,' in line with the continental approach. In 1997, that plan was revised,
and jurisdiction now has its own separate chapter in the Model Plan, divided up as
follows:
3 See 117 ILR 664, 666.
4 See, eg, the texts by Oppenheim, 1992; Brownlie, 1998; O'Connell, 1970.
5 See, eg, the texts by Twiss, 1884 and Hall, 1895.
6 See, eg, Verhoeven, 2000.
7 Council of Europe Res (68) 17 of 28 June 1968. This scheme is used to arrange the survey of United
Kingdom Materials on International Law, in each year's British Year Book of International Law.
33 2 VAUGHAN LOWE
JURISDICTION 333

Part eight: jurisdiction of the State or 'adjudicative' or 'curial jurisdiction'. This refers to the right of courts to receive, try,
I. Bases ofjurisdiction and determine cases referred to them. It is doubtful whether it is necessary to separate
A. Territorial principle out this type of jurisdiction. Insofar as parties choose to submit to the jurisdiction of
B. Personal principle a national court, there can be no cause for complaint unless one or more of the parties
is subject to an order made under the law of another State, obliging them not
C. Protective principle
to submit to the foreign court. If such an antisuit order is made, there is a clash of
D. Universality principle
prescriptive jurisdiction, as there is if two or more courts hear the same case and
E. Other bases issue conflicting orders. But all of this can be analysed in terms of prescriptive
II. Types ofjurisdiction and enforcement jurisdiction. It seems unnecessary to introduce a separate category
A. Jurisdiction to prescribe of 'jurisdiction to adjudicate', and that category is not employed in this chapter.
B. Jurisdiction to adjudicate
2. Other jurisdictional issues
C. Jurisdiction to enforce
III. Extra-territorial exercise ofjurisdiCtion The third category in the Council of Europe scheme, 'Extra-territorial exercise of
jurisdiction', is concerned with the exceptional circumstances in which a State is
A. General
entitled to exercise its enforcement jurisdiction (and with it, its legislative juris-
B. Consular jurisdiction
diction) in the territory of another State. A common example in NATO States is
C. Jurisdiction over military personnel abroad the network of arrangements under which troops of one NATO State are stationed
D. Others (artificial islands, terrae nullius, etc.) in another, but subject to the control of their home State authorities, so that, for
Iv. Limitations upon jurisdiction (servitudes, leases, etc.) instance, United States military police will have the right to arrest and imprison
V. Concurrent jurisdiction members of US forces on military bases in the United Kingdom.
The fourth and fifth of the Council of Europe 'Types' are of a rather different kind.
1. Types of jurisdiction The 'Limitations upon jurisdiction' instanced by servitudes and leases are limitations
The first section of the Model Plan, 'Bases of jurisdiction', is concerned with the ambit that arise when a particular piece of territory is 'leased' to another State (as part of
of a States' laws: that is, with its jurisdiction to prescribe rules, or its 'legislative' or Hong Kong was leased by China to the United Kingdom from 1898 to 1997, and as
'prescriptive' jurisdiction, as it is sometimes called. The second section, 'Types the Panama Canal Zone was leased by Panama to the United States from 1903 to
of jurisdiction', somewhat illogically steps up to a higher level of abstraction and 1977), and under the terms of the lease the territorial sovereign permits the lessee
distinguishes between, on the one hand, ~he jurisdiction to prescriQ~~ and, on to exercise exclusive jurisdiction over the area. This is not so much a 'type' of juris-
the other hand, the jurisdiction to enforce theIIk or 'enforcement jurisdiction' as diction as a particular consequence of the temporary transfer or alienation of rights
it is commonly known. Thus, the United Kingdom may enact a law forbidding, say, of sovereignty over areas of State territory; and it will not be further discussed here. 9
murder and make that law applicable to all British citizens wherever in the world they The final category, 'Concurrent jurisdiction', concerns the issues that arise when two
might be. That would fall within the United Kingdom's prescriptive jurisdiction, in or more States are entitled to exercise legislative (or, rarely, enforcement) jurisdiction
accordance with what is called the 'nationality' or 'personal' principle (Section LB in relation to the same factual circumstances.
in the Council of Europe scheme). But if a British citizen were to ~t murder
in, say, BrazQ, the United KingdoJ!! authoritIes would have no rigllt .to~nter Brazil
and arrest the mur~~:r.: The United Kingdom's enforcement
jurisdiction, like that
of every o~,- is in principle limited to its own territory. That is why States II. PRESCRIPTIVE JURISDICTION
'~eed to seek the extradition of persons accused of committing crimes within their
jurisdiction, in circumstances where the accused is living in another State. To whom maya State extend its laws? Who may the State order to do this, or not to
There is another 'Type of jurisdiction' identified in the Council of Europe scheme, do that? Or, to ask a question of a slightly different kind, who may be deemed by
and in similar frameworks adopted elsewhere: 8 that is the 'jurisdiction to adjudicate', a State to be, say, a citizen, or 'married', or 'an infant'? or how far maya State rule that
a particular ceremony counts as a valid wedding, or divorce? what, in other words, are
8 See, eg, the American Law Institute's Restatement of the Law: the Foreign Relations Law of the United
States, 3rd edn (1987); Akehurst, 1972-73, pp 145-217. 9 See further Ch 7 above.
334 VAUGHAN LOWE
the limits of the right of a State to impose legal characterizations upon persons or
events? These are all questions about the reach, the ambit or scope, of a State's laws;
that is, about the limits of its prescriptive or legislative jurisdiction.
Before tur~ing to the principles that explain the bases upon which States are
entitled to exercise prescriptive jurisdiction, it is necessary to refer to a tiresome and
oddly persistent fallacy that arose from an early case in the Permanent Court of
International Justice (PCIJ). The case concerned a collision on the high seas (that is,
that part of the sea that is beyond the territorial jurisdiction of every State), between
the French steamer, the Lotus, and the Turkish steamer, the Boz-Kourt, which resulted
in eight deaths. When the Lotus entered Constantinople, the Turkish authorities
prosecuted M Demons, the officer of the watch on the Lotus. Proceedings were also
instituted against the captain of the Turkish ship. France objected to the proceedings
against M Demons, on the ground that no State is entitled to extend its law to foreign
ships on the high seas, and that Turkey, accordingly, was not entitled to prosecute
M Demons. The PCn held that Turkey was entitled to prosecute. The passage
in question is so often quoted, and so much misunderstood, that it is worthwhile
reproducing it here. The Court said:1O
the first and foremost restriction imposed by international law upon a State is that-
failing the existence of a permissive rule to the contrary-it may not exercise its power in
any form in the territory of another State. In this sense jurisdiction is certainly territorial;
it cannot be exercised by a State outside its territory except by virtue of a permissive rule
derived from international custom or from a convention.
That proposition is not controversial. It asserts that a State's enforcement jurisdiction
is in principle confined to the State's territory (I return to this point below). In the
Lotus case, this was not an issue. Turkish authorities had not gone out on to
the high seas to arrest M Demons: they had waited until the Lotus entered a Turkish
port and so came within Turkish territory and thus within Turkish enforcement
jurisdiction. The question was whether having arrested M Demons in Turkey he, as a
French citizen, could then be prosecuted by the Turkish authorities for his acts outside
Turkish territory, on the high seas. The Court continued, addressing itself to this
question, as follows: l l
It does not, however, follow that international law prohibits a State from exercising juris-
diction in its own territory, in respect of any case which relates to acts which have taken
place abroad, and in which it cannot rely on some permissive rule of international law. Such
a view would only be tenable if internation:allaw contained a general prohibition to States to
extend the application of their laws and the jurisdiction of their courts to persons, property
and acts outside their territory, and if, as an exception to this general prohibition, it allowed
States to do so in certain specific cases. But this is certainly not the case under international
law as it stands at present. Far from laying down a general prohibition to the effect that
10 'Lotus', Judgment No 9,1927, PCl], Ser A, No 10, pp 18-19.
11 Ibid, P 19.
JURISDICTION 335
States may not extend the application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, it leaves them in this respect a wide
measure of discretion which is only limited in certain cases by prohibitive rules ...
That passage has been read as indicating that a State may extend the reach of its
prescriptive jurisdiction as it chooses, except in circumstances where it can be shown
that some rule of international law specifically prohibits it from doing so. A moment's
thought will indicate that it is extremely improbable that this is what the Court meant
to say. Suppose, for example, that Zimbabwe were to enact a law that made it an
offence for anyone, of whatever nationality and wherever in the world they might be,
to make a complaint to a UN body alleging that any State had violated its inter-
national human rights obligations; and suppose that a British citizen, on holiday
in Zimbabwe, was arrested and charged with breaking that law by writing to the UN
Human Rights Committee from his home in Birmingham with a complaint that,
say, Iraq had violated its obligations. 12 Could it really be supposed that the onus would
be upon the United Kingdom to prove that some prohibitive rule of international law
forbade such exercises of legislative jurisdiction by Zimbabwe?
There are many reasons for thinking that international law does not impose the
burden of proof upon those objecting to egregious assertions of jurisdiction over
foreigners outside the territory of the legislating State. Two are of particular relevance
here. First, in more than a century of objections to exercises of extraterritorial
jurisdiction, from the Cutting case l3 onwards, there seems to be not a single instance
of an objecting State either seeking to prove that there existed a prohibitive rule
forbidding the contested exercise of extraterritorial jurisdiction, or indicating that
it might consider itself to be under any legal obligation to do so. When States object
to exercises of jurisdiction, they simply assert that the other State has 'no right' to
exercise jurisdiction in the way that it claims. State practice is consistently based upon
the premiss that it is for the State asserting some novel extraterritorial jurisdiction to
prove that it is entitled to do so. Secondly, the argument in favour of the alleged
presumption of freedom is fallacious. In the Lotus case the Court argued that: 14
International law governs relations between independent States. The rules of law binding
upon States therefore emanate from their own free will as expressed in conventions or
by usages generally accepted as expressing principles of law and established in order to
regulate the relations between these co-existing independent communities or with a view
to the achievement of common aims. Restrictions upon the independence of States cannot
therefore be presumed.
Even if the characterization of international law as fundamentally consensual
is accepted, it does not follow that a sovereign State is free to do what it wishes. The
12 An extreme example: Zimbabwe has not, as far as I know, enacted any such law. The United States,
however, has enacted a law in somewhat similar terms: see below, note 33.
13 Foreign Relations of the United States, 1887, p 751; idem, 1888, II, pp 1114, 1180.
14 'Lotus', Judgment No 9, 1927, PCl], Ser A, No 10, P 18.
 VAUGHAN LOWE
sovereign equality of States is equally a fundamental principle of international law.
Claims by one State to prescribe rules for persons in another State encroach upon
the rights of the State where those persons are based itself to exercise jurisdiction
over those within its territory. There are two States-two 'co-existing independent
communities' -involved, and there plainly can be no presumption that the one
asserting extraterritorial jurisdiction is entitled to prevail in the event of a conflict,
and to impose its laws on persons within the territory of another State.
The best view is that it is necessary for there to be some clear connecting factor, of
a kind whose use is approved by international law, between the legislating State and
the conduct that it seeks to regulate. This nQtion of the need for a linking point, which
has been adopted by some prominent jurists, 15 accords closely with the actual practice
of States. If there exists such a linking point, one may presume that the State is entitled
to legislate; if there does not, the State must show why it is entitled to legislate for
anyone other than persons in its territory, or for its nationals abroad (who are covered
by the territorial and the national principles respectively).
There are two of these linking points, or 'Bases of Jurisdiction', or 'principles
of jurisdiction' (the terms mean the same thing) that are firmly established in
international law: territoriality, and nationality.
A. THE TERRITORIAL PRINCIPLE
The territorial principle is a corollary of the sovereignty of a State over its territory.
That sovereignty entails the right of the State to prescribe the laws that set the
boundaries of the public order of the State. It is taken for granted that foreign visitors
to a State are bound by the State's criminal law in the same way as everyone else in the
State. It may be less obvious, but it is no less true, that States may impose the entirety
of their laws-economic, social, cultural, or whatever-upon everyone within their
territories. In practice, States generally exercise this power with moderation. While
the basic principle is that everyone within the territory is equally obliged to obey
the law, those laws may be drafted so as to exempt people who are merely visiting the
State from certain obligations, such as obligations to pay income tax or to perform
compulsory military service (and equally, so as to exclude them from certain rights,
such as the right to vote, or to social security payments). Exactly how and where these
lines are drawn is a matter for each State.
The 'territory' of the State includes both its territorial sea, which extends twelve
miles from its coast, and the airspace above its land and sea territory. States may
thus legislate for ships off their coasts, and for aircraft in their skies. It was the latter
right that entitled the United Kingdom to prosecute the Libyan nationals accused
of blowing up a US aircraft in the skies above Lockerbie, Scotland, in 1988. Again, in
practice States usually leave the prescription of rules applicable on board ships or
aircraft to the State of registry of the craft, asserting jurisdiction only in exceptional
15 See the discussion in Attorney-General of the Government of Israel v Eichmann (1961), 36 ILR 5.
JURISDICTION 337
cases. The routine application of the customs and excise laws of the territorial State
is a most common exception to this pattern, which is one reason why duty-free sales
cease shortly before the craft arrives at its destination.
States enjoy 'plenary' jurisdiction over their territory. That is to say, subje<;:t to
their duties under human rights laws and similar constraints, they may legislate as
they please, on any matter whatsoever. At sea, States enjoy an additional but func-
tionally limited jurisdiction. Beyond the twelve-mile territorial sea they may claim a
twelve-mile contiguous zone, in which they can exercise jurisdiction in relation to
customs, fiscal, sanitary, and immigration matters, and also in order to safeguard
submarine archaeological sites. Subject to certain limitations, they may also assert
jurisdiction over the exploration for and exploitation of living and non-living
resources (such as fish and oil) and energy, over the establishment of artificial
islands and structures, and over pollution and scientific research, in an Exclusive
Economic Zone (EEZ) that extends 200 miles from the coast. And they may assert
full civil and criminal jurisdiction over installations, such as oil rigs, set up on their
continental shelves or in their EEZs in order to exploit seabed resources. These zones
that lie beyond the territorial sea are not part of the territory of the State; but the
coastal State is permitted to exercise limited jurisdiction in them, in contrast to
the position on the high seas (and in outer space) where, in principle, craft and
those on board them are subject to the jurisdiction only of the State of registry (the
'flag' State). 16
Most acts, most bank robberies, weddings, and daily struggles to earn a living, take
place squarely within the territory of a single State. The territorial principle is entirely
adequate to sustain jurisdiction over such acts. Indeed, in the domestic law of many
States there is a presumption that the State's laws, in particular its statutes, apply
throughout the State's territory but not outside that territory, unless there is clear
indication that the law is intended to apply outside the territory. Some acts, however,
straddle more than one jurisdiction. The Lockerbie bomb is said to have been loaded
aboard the aircraft in Malta, before it entered the United Kingdom; the September
11 th attacks are said to have been planned and prepared by people in a number of
different countries. Who has jurisdiction? One solution would be to allow each State
to exercise jurisdiction over the particular fragment of the greater scheme that was
located within its territory: one State might prosecute the offence of loading a bomb
on board an aircraft, another the offence of causing an explosion on board an aircraft,
another, murder, and so on. Whatever theoretical tidiness might be preserved by
such an approach, it has no practical merits to commend it. It is more efficient if the
investigation and prosecution of an offence is concentrated largely in the hands of
a single State. That is what States in fact 40. Territorial jurisdiction has spawned
two variants to cope with such situations. They are commonly known as subjective
territorial jurisdiction and objective territorial jurisdiction.
16 See the UN Convention on the Law of the Sea, 1982, Articles 2, 33, 56, 60, 92, 303.
 VAUGHAN LOWE
1. Subjective territorial jurisdiction
'Subjective territorial jurisdiction' is the name given to the exercise of prescriptive
jurisdiction by a State in circumstances where it applies its law to an incident which is
initiated within its territory but completed outside its territory. The prosecution for
murder of bombers by the State in which they put the bomb on board an aircraft,
even though the bomb exploded in the airspace of another State, is an example.
2. Objective territorial jurisdiction
'Objective territorial jurisdiction' is the name given to the exercise of prescriptive
jurisdiction by a State in circumstances where it applies its law to an incident that
is completed within its territory, even though it was initiated outside its territory.
The prosecution for murder of bombers by the State in whose airspace a bomb
on board an aircraft exploded, even though the bomb had been loaded on the
aircraft in another State, is an example. The Lotus case is another example. Ships
(and aircraft) are treated for jurisdictional purposes much as if they are pieces of
floating territory of the State of registration, although they are, in law, quite clearly
not parts of the State's territory. The act of the Lotus in colliding with the Turkish
ship was, therefore, an act completed within Turkish territorial jurisdiction-
literally, within the Turkish ship-and accordingly liable to be prosecuted by the
Turkish authorities.
Both subjective and objective territorial jurisdiction are routinely asserted by States,
in order to secure the application of their laws to all elements of offences that they
wish-to prosecute. In English law, examples include DPPv Doot, 17 DPPv Stonehouse, 18
and Liangsiriprasertv Government of the United States ofAmerica. 19
3. The 'effects' doctrine
Exercises of subjective territorial jurisdiction have not proved problematic; but the
same cannot be said for exercises of objective territorial jurisdiction. There is little
difficulty with cases where distinct physical elements of the overall crime take place
within the jurisdiction of different States. But some States, notably the United States
of America, have sought to extend the concept much further. The clearest example
of this is the so-called 'effects' doctrine, developed first in the context of US antitrust
law. In the Alcoa case, US v Aluminium Co of America, 20 the United States asserted
jurisdiction over the conduct of a non-US company that was a member of a cartel
whose activities were intended to affect imports to or exports from the United States,
and actually did so. The significance of the decision was that it did not depend upon
the commission of physical acts within US territory: the intentional production of
economic 'effects' within the United States was sufficient.
17 [1973] AC 807; [1973] 1 All ER 940 (HL).
18 [1978] AC 55; [1977] 2 All ER 909 (HL).
19 [1991]1 AC 225; [1990] 2 All ER 866 (PC).
20 US v Aluminium Co ofAmerica, 148 F.2d 416 (1945).
JURISDICTION 339
This idea reached what is perhaps its fullest expression in the Uranium Antitrust
litigation, which surfaced in the English courts in Rio Tinto Zinc Corp v Westinghouse
Electric COrp.21 There, uranium producers in a number of States, including the United
Kingdom, formed, with the knowledge or encouragement of their national govern-
ments, a cartel, primarily in order to maintain the world market price of uranium.
This was in response to a protectionist US law that had effectively shut them out of
the United States market, which amounted to more than two-thirds of the world
market. Meanwhile, Westinghouse, a US company, had contracted to sell uranium to a
public utility in the United States, at a price set some years earlier, but needed to buy
the uranium on the world market. The cartel's success in maintaining the market
price of uranium was such that Westinghouse could not afford to fulfil the contract.
Westinghouse was sued for $2bn; and it in turn sued some members of the cartel
for $6bn, under a provision of US ~titrust law that allows those injured by cartels to
recover treble damages. Here, US law was to be applied to non-US companies, in
respect of their acts outside the United States, at a time when they were forbidden by
US law to trade in the United States. The only jurisdictional link was the 'effect' of
the cartel upon the United States: there was no intraterritorial conduct at all. It is the
reliance upon economic .repercussions within the territory, rather than upon some
element of intraterritorial conduct, that distinguishes the 'effects' doctrine in its pure
form from objective territorial jurisdiction, which does require some intraterritorial
conduct. The assertion of extraterritorial jurisdiction by the United States in this case
was met with strong protests from many other States.
It is sometimes said that other States also assert jurisdiction on the basis of the
'effects' doctrine. There is some truth in this. States such as France and Germany, and
the Ee in cases such as Woodpulp,22 have adopted laws or decisions that appear to
involve such an assertion; but on a closer inspection it is clear that such laws are
usually applied only in circumstances where there is some element of intraterritorial
conduct.
B. THE NATIONAL PRINCIPLE
States have an undisputed right to extend the application of their laws to their citizens
(that is, those who have the nationality of the State), wherever they may be. This
type of jurisdiction has a longer history than jurisdiction based upon the territorial
principle. Rulers asserted jurisdiction over those who owed allegiance to them even
before the rulers' control over their land territory was consolidated to the point where
they could be said to assert territorial jurisdiction. Nonetheless, the advent of the
European territorial State as the paradigmatic unit of the international legal order
has long since given territorial jurisdiction pre-eminence. Jurisdiction based on
nationality is used relatively infrequently.
21 [1978] 1 All ER 434 (HL).
22 Cases 89/85, Ahlstrom Osakyhtio v Commission [1988] ECR 5193.
340 VAUG HAN LOWE
States are in principle left free to decide who are their nationals, and to lay
down the conditions for the grant of nationality in their own laws. It is usual to accord
nationality to anyone born in the territory; except, perhaps, in cases where the
mother's presence is merely transient-for example, as a passenger on a ship or
aircraft transiting the State's territory. This basis of nationality is sometimes known
as the jus soli. It is common also to accord nationality to children one or both of
whose parents are themselves nationals cf the State. This is sometimes known as
the jus sanguinis. States also commonly provide for the conferral of nationality
by naturalization, the process in which those who fill whatever residential and
other requirements the State may lay down apply to become nationals of the State.
Naturalization usually involves the renunciation of any other nationalities the person
might have; but it is not uncommon for people to have two nationalities, one derived
from the nationality of their parents, the other from the place where they were born.
Such people are known as 'dual nationals'.
The nationality of companies is also a matter for each State to determine under its
own laws; but here the practice is more complex. As the International Court noted in
the Barcelona Traction case,23 there is a divergence in State practice. Broadly speaking,
there is a tendency for common law States to accord nationality to companies on the
basis of their incorporation in the territory of the State, regardless of where the actual
business or management of the company is carried out. In contrast: at least some civil
law States confer their nationality not on the basis of the place of incorporation but
rather on the basis of the place where the company has the seat of its management. As
companies may be formally incorporated in one State for tax reasons, but maintain
their actual business or management elsewhere, this is a significant point. In contrast
to individuals it seems that companies cannot change their nationality, for example by
naturalization. They can only achieve a comparable result, by dissolving the company
and transferring all of its assets and responsibilities to a new company in another
State. This is, however, more a matter of corporate succession than of a change of
nationality.
The freedom of States to fix the conditions for the grant of nationality extends
also to ships and aircraft. The same is true of comparable structures, such as off-
shore oil rigs (which appear to be regarded as having the nationality of the State
of registry while they are in transit, even though they fall under the jurisdiction of
the coastal State while they are actually operating on the continental shelf). Typical
conditions might include a requirement that the vessel operates from a home port
in the State, or has a certain proportion of the owners, or perhaps of the crew, having
the nationality of the State. In this respect, many States tend to be more restrictive
in granting nationality to ships and aircraft than they are in granting nationality to
companies.
This freedom is not absolute. The existence of limitations upon the international
effectiveness of grants of nationality was discussed by the International Court in the
23 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3.
JURISDICTION 341
Nottebohm case,24 which is sometimes supposed to be authority for the proposition that
a genuine and close link between the individual and the national State is necessary
if nationality is to be effective: ie, if other States are to be obliged to accept it as an
adequate basis for the State to treat the individual as its national. The Court did not
say that. It did hold that nationality should, in principle, be the juridical expression of
a close factual link between the individual and the national State. But the Court was
not concerned with the effectiveness of nationality in general, but only with the much
narrower issue of its effectiveness as the basis for diplomatic protection. The Court
was not even concerned with the general question of the right of a national State
to exercise diplomatic protection. The Court limited itself to the particular question
whether a State with which a naturalized citizen has no real links can exercise
diplomatic protection on behalf of the citizen against another State with which
the citizen, while not a national of that State (Nottebohm was not a dual national),
does have close and real links. The decision was, accordingly, of no relevance what-
ever to the question of the efficacy of nationality for jurisdictional purposes. Indeed,
as Nottebohm had himself chosen to become a naturalized citizen of a State,
Liechtenstein, with which he had nO_~~,~_~ks, it is difficult to see any ground on
which Liechtenstein could be denied the right to impose its laws upon Nottebohm in
accordance with the nationality principle.
One may also note that on the one occasion, post-Nottebohm, when the Inter-
national Court was invited to rule that grants of nationality not underpinned by some
close factual connection with the putative national State were ineffective, it did not do
so, but instead reaffirmed that it is for each State to fix the conditions for the grant of
its nationality.25 There are, no doubt, limits to this freedom. The mass imposition
of nationality upon unwilling people, or nationality obtained by fraud or corruption,
or a nationality acquired for vessels in order to circumvent legal regulations based
upon the nationality of ships, for example, might in certain circumstances be held
not to be effective. For practical purposes, however, States remain free to decide who
are their nationals. (It should also be noted that it is arguable that the exercise of
legislative jurisdiction based upon nationality is not a matter for international law at
all. The way that a State treats its nationals is-questions of human rights apart-in
general not a matter for international law. If a State were to legislate for persons who
were indisputably its nationals, who could complain?)
In practice, States now rarely exercise legislative jurisdiction over their nationals.
They tend to do so in order to prohibit serious offences which not only disturb
the peace of the place where they are committed, but also signal a characteristic
of the offender in which the national State has an interest. For example, a State would
plainly have an interest in forbidding its· nationals to engage in bigamous marriages
abroad, and forbidding them to commit murder abroad. Another motive for asserting
24Nottebohm, Second Phase, Judgment, ICJ Reports 1955, p 4.
25See the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative
Organization, Advisory Opinion, ICJ Reports 1969, p 150.
342 VAUGHAN LOWE
jurisdiction over nationals is beginning to appear in State practice, too. The
emergence of bodies such as the International Criminal Court (Cassese, Gaeta, and
Jones, 2002), and of obligations under international treaties to surrender to another
State persons accused of various specified crimes, if they are not tried by the State in
which they are found, is increasing the chances of a national of a State being tried by
a foreign court. Some States are fearful of this; and some have principled objections
to the surrender of their nationals to foreign tribunals. There are signs that States are
taking steps to ensure that they can themselves prosecute their nationals for offences
for which the surrender of the national might otherwise be sought. Whether this is a
sign of the seriousness with which the States intend to prosecute nationals accused
of such offences, or rather of the determination of States to keep their nationals as far
as possible out of the hands of foreign courts, is not entirely clear.
C. THE PROTECTIVE PRINCIPLE
It has long been recognized that when essential interests of the State are at stake States
need to, and will, act in order to preserve themselves. Accordingly, when vital issues
are threatened, even if by non-nationals acting outside the territory of the State, the
State's interests are engaged and it may exercise its legislative jurisdiction over them.
The counterfeiting of a State's currency is a typical example, as is an extraterritorial
conspiracy to evade the State's immigration laws.
The category of vital interests is not closed. The United States has asserted juris-
diction over foreigners on the high seas on the basis of the protective principle, in
cases such as US v Gonzalez,26 and in statutes such as the 1986 Maritime Drug Law
Enforcement Act. It argues that the illegal trade in narcotics constitutes so severe a
threat to United States' society that the protective principle allows this extension of its
jurisdiction. Other States have acquiesced in this United States' move; but they have
tended not to follow it but rather to extend their jurisdiction by means of treaty
arrangements concerning the suppression of unlawful drug trafficking.
The rationale of the protective principle is clearly linked to the protection pf vital
State interests. Accordingly, while the category is not closed, the potential for its
expansion is limited. Whereas States could, in principle, apply any law that they might
choose to their nationals, by no means every law could be given extraterritorial scope
under the protective principle. That is why offences against, for example, a State's
competition laws are not prosecuted on the basis of this principle but are instead
explained as applications of the territorial principle or the 'effects' doctrine. That
said, the overblown rhetoric with which governments from time to time describe their
attempts to combat various 'threats' to the State, or to civilized values or to the world
order or whatever, must take their toll. The pressure to expand the use of this prin-
ciple, and the danger of unshackling it from the protection of truly vital interests and
of permitting its use for the convenient advancement of important interests, is clear.
26 776 E2d 931 (1985).
- - - - - - - - - - - - - - - - - - - - - - - - - - .-._----
JURISDICTION 343
D. THE UNIVERSAL PRINCIPLE
Some crimes are regarded as so heinous that every State has a legitimate interest
in their repression. That is the traditional explanation of universal jurisdictionY
But given that the first, and one of the most firmly established, of the instances of
crimes covered by the universal principle is piracy, one may wonder if the traditional
explanation is entirely satisfactory.
It is probably more accurate to say that there are two strands running together to
make up the universal principle. One is the strand that is indeed made up of heinous
crimes, such as genocide, crimes against humanity, and serious war crimes, all of
which are subject to universal jurisdiction. The second is crimes that are serious,
and which might otherwise go unpunished. Piracy-which means simply an un-
authorized act of violence or depredation committed by a private vessel ·on the high
seas against another vessel, for private ends-may involve relatively minor uses of
force; and not every act of piracy can properly be described as heinous. Yet
for centuries, piracy was covered by universal jurisdiction, but murder, armed
robbery, rape, and arson, which could surely be equally heinous, were (and are) not.
The justification for universal jurisdiction over pirates is not so much that piracy is
inherently heinous, and on a par with genocide and war crimes, as the fact that
because pirates operate on the high seas it is very easy for them to evade the juris-
diction of any State that might have jurisdiction over them on some other basis (for
example, the flag State of their ship, or their national State), unless any State that
happens to have them within its jurisdiction is entitled to try them. 28
This point is not trivial. One might argue that the principle could be extended to
justify assertions of jurisdiction over others who commit serious crimes in places
beyond the territorial jurisdiction of the State. Crimes committed in Antarctica would
be one example (which the 1!nited States has in fact addressed by making certain
acts, such as murder, committed by or against US nationals in Antarctica, subject to
US jurisdiction). .
E. TREATY-BASED EXTENSIONS OF JURISDICTION
If the territorial principle, in all its variants, is overwhelmingly the most important
principle in the day-to-day application of a State's laws, much the most impor-
tant basis for the assertion of extraterritorial jurisdiction is now the large, and con-
stantly growing, network of treaties in which States cooperate to secure the effective
and efficient subjection to the law of offences of common concern.
Most of these treaties follow the same broad pattern. A particular offence or range
of offences is defined. For example, Article 1 of the 1971 Montreal Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation (which is at the
27 See, eg, US v Yunis, 681 ESupp 896 (1988); Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v Belgium), IC! Reports 2002, p 3; (2002) 41 1LM 563.
28 See again the Yunis case, idem.
344 VAUGHAN LOWE
centre of the Lockerbie case in the International Court ofJustice),29 states that a person
commits an offence if he unlawfully and intentionally performs an act of violence
against a person on board an aircraft in flight if that act is likely to endanger the safety
of that aircraft, or ifhe commits certain other specified acts. The Convention then goes
on to require all States parties to make such acts punishable by severe penalties and
to assert their jurisdiction over such offences if they are committed in certain specific
circumstances, including offences committed in the territory of the State or on board
an aircraft registered in the State, and offences committed in cases where the aircraft
lands in the State's territory with the alleged offender still on board. Most significant
of all is the obligation to provide for jurisdiction over offences in every case where
the alleged offender is found within the State's territory, regardless of the offender's
nationality or of the place where the offence was committed. This is a crucial element
in what is often known as the aut dedere, aut iudicare provision, which stipulates that
in every case where an alleged offender is found within the State's territory the State
must either extradite him to face trial in another State that seeks him for the purposes
of prosecution (and for this purpose, the Convention offences are deemed by the
Convention to be included in the lists of extraditable crimes that appear in any
extradition treaties that may be in force between the two States), or if it does not
extradite him, it must submit the case to its competent authorities for the purpose of
prosecution.
Thus, the aim is to ensure that alleged offenders do not escape prosecution; and
the convention does this in part by creating what is in essence a form of universal
jurisdiction as between the parties. (It is, strictly speaking, only applicable between the
parties. In theory, if an alleged offender was prosecuted for an offence outside
the territory of, and not on an aircraft registered in, the prosecuting State, and the
national State of the alleged offender was not a party to the Convention, it could object
to the assertion of jurisdiction over its citizen. There do not appear to have been any
such protests, however.)
There are many conventions that follow a similar pattern, most of them designed
to counter various forms of terrorist activity or internationally organized crime.
Some, such as the 1979 International Convention Against the Taking of Hostages,
have introduce a different, wider range of circumstances in which States parties must
establish their jurisdiction over offences defined in the convention. Likewise, the
1979 Hostages Convention stipulates that States parties must establish their juris-
diction over Convention :offences committed in any of a range of circumstances: in
the State's territory, or on board a ship or aircraft registered in the State; or by any of
its nationals (and, if the State considers it 'appropriate' also by any stateless persons
who have their habitual residence in its territory); or 'in order to compel that State to
do or abstain from doing any act'; or with respect to a hostage who is a national of
29 See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie, Provisional Measures, Orders of 14 April 1993, IC! Reports 1992, pp 3, 114; 94 1LR 478;
Preliminary Objections, Judgment, IC! Reports 1998, pp 9, 115; 117 ILR 1.
JURISDICTION 345
that State, 'if that State considers it appropriate'. The last two circumstances are
particularly interesting. In the last circumstance, jurisdiction is based on the national-
ity of the victim, a ground often known as the 'passive personality' principle, which
will be discussed below. It would allow, for example, the United States to prosecute
someone who took a US citizen hostage in a foreign State. The other extension of
jurisdiction, to States which are the target of the hostage-taker's pressure, would allow,
for example, Israel to prosecute someone who took a non-Israeli Jew hostage in order
to bring pressure upon Israel-a scenario similar to the hijacking of the Achille Lauro
in 1985,30 in which a Jewish US citizen was killed as part of a campaign to pressurize
Israel. Novel and striking as such bases of jurisdiction might be, in the context of the
treaty their effect is·· less dramatic. The general aut dedere, aut judicare principle
requires the State to prosecute every alleged offender found within its territory, if
it does not extradite him. The law of States parties must therefore provide for juris-
diction over offenders whether or not the offence was committed within the State's
territory or ships or aircraft, or by or against a national of the State, or in order to
compel the State to do something. The broad grounds of treaty jurisdiction are all
in effect swallowed up within the quasi-universal jurisdiction that the aut dedere, aut
judicare principle requires. What the treaty regime does add, however, is a clear
entitlement of States whose links with the offence fall within one of the specified
grounds to seek the extradition of the alleged offender. The treaty provisions have the
important practical effect of extending the range of States acknowledged as having a
legitimate interest in the prosecution of th~ alleged offender.
These extensions of jurisdiction treaty grounds have induced some parallel devel-
opments in the unilateral practice of States. For example, after the 1985 Achille Lauro
incident, the United States followed the broad approach of these international treaties
by enacting the 1986 Omnibus Diplomatic Security and Anti-Terrorism Act, which
asserted jurisdiction over physical attacks on US citizens outside the United States.
(It is interesting to note that this development was recorded in the Cumulative Digest
of United State Practice in International Law 1981-88 under the heading 'Jurisdiction
Based on Universal and Other State Interests' -an indication of an increasingly
robust approach to extraterritorial jurisdiction over terrorists.) Similarly, in United
Kingdom law universal jurisdiction is asserted in sections 47 and 51 of the Anti-
Terrorism, Crime and Security Act 2001, in respect of the offence of knowingly
causing a nuclear explosion without authorization. The Rule of Law isa wondrous
th~ t
F. CONTROVERSIAL BASES OF PRESCRIPTIVE JURISDICTION
The bases of jurisdiction described above are generally accepted in State practice.
There are certain other .bases that have been advanced by States from time to time,
which have not found general acceptance. These are instances of States considering
30 See (1985) 24 1LM 1509.
 VAUGHAN LOWE
that the link between them and the conduct that they seek to regulate is sufficient
to warrant the exercise of prescriptive jurisdiction. The objections of other States,
however, operate to preclude the emergence of a <general practice accepted as law'
and the consequent establishment of the claimed basis of jurisdiction in customary
international law.
1. Passive personality
One of the oldest controversial bases of prescriptive jurisdiction is the so-called
<passive personality' principle: that is, the principle that would allow the national
State of the victim of an offence to assert prescriptive jurisdiction. That principle lay
behind the controversy that arose in 1885 when Mr AK Cutting, a citizen of the
United States, was imprisoned in Mexico and charged with having libelled a Mexican
citizen in a paper published in the United States. In his annual address to Congress
in 1886, President Grover Cleveland recalled that the incident <disclosed a claim of
jurisdiction by Mexico novel in our history, whereby any offense committed anywhere
by a foreigner, penal in the place of its commission, and of which a Mexican is the
object, may, if the offender be found in Mexico, be there tried and punished in
conformity with Mexican laws'. He went on to say that <[t]he admission of such a
pretension would be attended with serious results, invasive of the jurisdiction of
this Government and highly dangerous to our citizens in foreign lands. Therefore I
. have denied it and protested against its attempted exercise as unwarranted by the
principles of law and international usages'. It is a perfect example of a protest against
an excessive jurisdictional claim. It will be noted that the United States assumed that
the burden lay upon Mexico to prove its entitlement to exercise jurisdiction in this
way; no attempt was made by the United States to establish a <prohibitive rule' of the
kind that is sometimes said to be required by the Lotus case.
Claims to jurisdiction based upon the passive personality principle are still made.
For example, in 1975 the United States again had cause to protest against assertions of
passive personality jurisdiction, on that occasion by Greece. 31 The passive personality
principle has still not established itself in customary international law but, as was
noted above, it features prominently in international treaties such as the Hostages
Convention.
2. National technology
One of the most imaginative, and least successful, attempts to extend the scope of
legislative jurisdiction was made by the United States in the 1980s. In the course of its
attempts to prohibit trade with the Soviet Union, following the imposition of martial
law in Poland, the United States made it a criminal offence for anyone, regardless
of their n!ltionality or State of residence, to export to the Soviet Union goods that
contained more than a certain proportion of components of US origin or had been
created using US technology. This was an attempt to assert jurisdiction on the basis of
31 See the Digest Of United States Practice In International Law 1975, p 339.
JURISDICTION 347
the <nationality' of technology (a concept unknown in international law); and it
was vigorously resisted by the European States whose nationals bore the brunt of the
prohibition. The main European protest appears in the Comments of the European
Community dated 12 August 1982. 32 Again, however, the refusal of other States to
accept the right to the United States unilaterally to impose its law on anyone who
handles US technology has not prevented the acceptance of that basis of jurisdiction
on an agreed basis in international treaties. For example, States appear to have been
willing to conclude .agreements relating to transfers of nuclear materials, under which
the consent of the supplying State is required in the event of subsequent transfers of
the material.
3. Unprincipled assertions of jurisdiction
From time to time, States are tempted to assert an extended extraterritorial juris-
diction in a manner that appears to be almost totally unprincipled. One of the most
startling examples is to be found in the US Military Order of 13 November 2001,
concerning the detention at a US base, Guantanamo Bay in Cuba, of <international
terrorists' seized by the United States in Afghanistan. Section 7 of that Order
stipulates, in relation to detained individuals, that:
the individual shall not be privileged to seek any remedy or maintain any proceeding,
directly or indirectly, or to have any such remedy or proceeding sought on the individual's
behalf, in (i) any court of th~ United States, or any State thereof, (ii) any court of any foreign
nation, or (iii) any international tribunal. 33
It is not clear whether this curiously drafted Order is intended to prevent the making
of applications to bodies such as the Inter-American Commission of Human Rights;34
but insofar as it is intended to forbid non-US citizens to make such applications, it
is difficult to see that even the protective principle could be stretched so far as to
justify this provision, even if it were otherwise compatible with the United States'
international obligations.
G. INADEQUACIES OF THE TRADITIONAL APPROACH
The traditional approach to the bases of jurisdiction is beset by considerable difficulty
in practice. Two problems stand out. First, th~ problem of locating acts; and second,
the problem of reconciling conflicts when two or more States have concurrent
jurisdiction.
1. The difficulty of locating acts
The territorial principle, both in its plain form and its objective and subjective
variants, presupposes that it is clear where an act is committed; but that is far from
32 (1982) 21 lLM 891.
33 www.whitehouse.gov/news/releases/2001l111print/20011113-27.html.
34 The Inter-American Commission acted anyway: see (2002) 41 lLM 532.

VAUGHAN LOWE
always the case. Take, for example, the case of the hijacking of an aircraft. If control
over an aircraft registered in State A is seized w4ile the aircraft is in the airspace of
State B, is the hijack' committed' (or, rather, still being committed) when the aircraft
lands in State C? And, to take another example, suppose that individuals in States L
and M conspire by fax, telephone, and e-mail to import narcotics into State K, but
that only one of them ever sets foot in State K. Could each of States K, L, and M assert
jurisdiction over the entire conspiracy and all of the participants?
As a matter of domestic law (the law under which the accused will, of course, be
tried), it is evident that much will depend upon the particular way in which the
crime with which they are charged is defined. The English courts have distinguished
between 'conduct' crimes and 'result' crimes, the former focusing upon what is
actually done and the latter upon the consequences of what is done, in a manner that
lends itself respectively to the application of the subjective and objective variants of
territorial jurisdiction. 35
While such approaches may be sufficient to enable national courts to overcome any·
difficulties that they may have in determining the reach of the laws that they have to
apply, it does not answer the question whether the jurisdictional reach asserted in
those laws is in conformity with international law. Indeed, the drafting of national
laws may aggravate the problem. It is quite possible to redraft every offence so as to
make it a crime to enter the State having done .x, y, or z before entry. For example, the
customs laws of some Commonwealth States made it an offence for ships to enter the
territorial sea having broken a bulk cargo into smaller parcels on the high seas (such
breaking being almost invariably the prelude to smuggling of goods ashore). Was that
an extension of the State's jurisdiction onto the high seas? Or was it an assertion of
jurisdiction over acts that took place within the State's territory? A slightly different
issue was raised in the 1920s by the US Prohibition Law, which sought to forbid the
importation of alcohol into the United States. That law was applicable to foreign
cruise ships entering US ports from the high seas. Did that therefore mean that the US
was forbidding those ships to carry alcohol on the high seas? That was certainly the
practical effect of the enforcement of the Prohibition Law; but was it the proper
juridical characterization of that law?
There is no clear theoretical answer to this problem. As usual, however, there is
much to be said for falling back on common sense. Where other States consider that
the jurisdictional claim has gone too far-as they did in relation to the application of
the Prohibition Law to foreign cruise ships,36 but not in relation to the laws on the
breaking of bulk cargo-they will protest. Those protests generally hold jurisdictional
claims within reasonable bounds. If other States choose to acquiesce in the claim, it
will become established in customary law.
35 See DPPv Doot [1973] AC 807; [1973]1 All ER 940 (HL); DPPv Stonehouse [1978] AC 55; [1977]2 All
ER 909 (HL); Liangsiriprasertv Government of the United States ofAmerica [1991] 1 AC 225; [1990] 2 All ER
866 (PC).
36 The dispute was largely settled by an accommodation in the series of bilateral 'Liquor treaties' made
with the United States.
JURISDICTION 349
2. The difficulty of overlapping jurisdiction
All of the examples cited in the previous section in fact involve overlapping juris-
diction: that is, more than one State can make out a claim on the basis of established
principles of international law to apply its laws to the conduct in question. That is hy . v:
the cases are problematic: it is unlikely that a State will complain about the assertIOn
of jurisdiction over an individual unless there is some other State that might m~re
appropriately assert jurisdiction. In the 'Prohibition' cases, for example, the protestmg
European States thought it right that the flag State, and not the State of each port at
which a cruise ship might call, should decide whether or not the ship could carry
alcohol on board.
Instances of' overlapping', or 'concurrent', jurisdiction give rise to the question of
priority. If the applicable laws diverge, which is to prevail? In some ~ases it may.appear
clear which law is to yield. There is a considerable body of practice supportmg the
view that a State may not require anyone outside its territory to do an act that would
violate the criminal law of the place where the act would be done. Thus, courts in the
United States allow what is sometimes known as the 'foreign sovereign compulsion'
defence. For example, the court may excuse a failure to produce documents in pursu-
ance of an order of the court, if the failure results from a prohibition on disclosure
37
under the criminal law of the State where the documents are located. (This defence is
not available in circumstances where the duty of non-disclosure arises under the civil,
rather than the criminal, law of the territorial state.)38
Some States have sought to utilize the foreign sovereign compulsion defence by
enacting laws that oblige persons in their territory to do or not to do certain things.
For instance, the United Kingdom enacted the Protection of Trading Interests Act
1980 (a more powerful successor to the Shipping Contracts and Commercial
Documents Act 1964), under which the Secretary of State may order any person in the
United Kingdom not to comply with orders from a foreign cour~ for the prod~cti~n
of evidence or, indeed, with substantive orders made on the baSIS of extraterntonal
jurisdiction by a foreign State. The powers under the Act were invoked in 1982 in
order to forbid British businesses to comply with US orders not to supply goods to
the Soviet Union for use in connection with the construction of the Siberian gas
pipeline, during the so-called 'pipeline' dispute39 -an unusual example of one NAT?
State making it a criminal offence to comply with the law of another NATO State m
respect of dealings with the Soviet Union during the Cold War. Similar laws, often
known as 'blocking' statutes, have been adopted by a number of other States including
Australia, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Japan, the
Netherlands, New Zealand, Norway, the Philippines, South Africa, Switzerland, and-
the most dramatic measure of all-the European Community.40
37 See, eg, Societe Internationale v Rogers, 357 US 197 (1958).
38 See, eg, USv First National City Bank, 396 F.2d 897 (1968). .
39 See the symposium in (1984) 27 German Yearbook of InternatIOnal ~aw 11:-142.
40 See European Community Council Regulation (EC) 2271/96, publIshed ill (1996) OJ L309. For other
measures, see Lowe, 1983.
 350 VAUGHAN LOWE
Blocking statutes are no solution to jurisdiction of conflicts. Quite apart from the
fact that they represent a degree of friction in the international system that inevitably
impairs its efficiency, they do nothing to overcome the problem of what might
be called 'prudential compliance'. Even though an extraterritorial measure may be
patently unlawful as matter of international law, and though it is possible that a
person may at some point be ordered not to comply with it, the risk of the legislating
State imposing sanctions for non-compliance is so great that anyone caught by the
extraterritorial claim must, if they are prudent, organize their affairs so as to comply
with the law. European businesses, for example, often organize transactions so as to
comply with US law, even though the United State~ may have no legitimate claim
to jurisdiction over them; and the converse is increasingly true of US companies in
relation to EU law.
Jurisdictional disputes continue to arise, though their forms change. Thus, in 1996
the United States enacted laws providing for sanctions against Cuba (the Helms-
Burton Act) and against Iran and Libya (the D'Amato Act). Those laws contained
a range of extraterritorial measures, including the imposition of sanctions upon
non-US businesses which purchased, in good faith and for full value, property in
Cuba that had been confiscated in the 1960s from US owners who had not been
compensated for the takings. These measures provoked a strong response from the
European Community, resulting in an uneasy stand-off when the full implementation
of the American laws was suspended.41
The States that claim extraterritorial jurisdiction are by no means always and
wholly insensitive to the views of other States. US courts, in particular, have developed
what they call the 'balancing of interests' approach to jurisdiction of conflicts. This
approach has a number of variants, which may be seen in the leading cases such as
Timberlane, Mannington Mills, and Hartford Fire Insurance. 42 Broadly speaking, under
this approach the court considers the nature and extent of the United States' interest
in having its law applied, and the interests of the other State in not having US law
applied, and also factors such as the nationalities of the parties involved and the
nature of their links with the United States. It then decides whether, on balance, it
is right to apply United States law or to exercise judicial restraint. Not surprisingly,
it is practically invariably decided to apply United States law. Nonetheless, there is no
doubt that judges in United States courts are now more sensitive to the constraints
of international law and the demands of international comity than they were in the
1960s and 70s.
There are more satisfactory approaches to a solution to jurisdictional conflicts than
unilateral restraint and blocking statutes. Sometimes, States may be able to harmonize
their policies so that even though their jurisdictional claims may overlap, individuals
affected by those laws are not subjected to conflicting demands. Sometimes, States
41 See Lowe, 1997.
42 The cases are discussed in Hartford Fire Insurance Co v California, 113 S Ct 2891 (1993); and
LowenfeId,1995.
JURISDICTION 351
may be able to establish consultation procedures in Of.der to seek to elm:inate on a
case-by-case basis extraterritorial applications laws whIch would cause dIfficulty. f~r
the State in whose territory the regulated conduct occurs. A good example of thIS IS
the antitrust cooperation procedure established by the European Co~unity and
United States. 43 Such steps have, in recent years, done much to defuse disputes ov~r
jurisdiction, which are now somewhat less common and less acute than they. were ill
the 1980s- though whether this trend is anything more than temporary r~maills to be
seen. Ultimately, however, it must be recognized that jurisdictional conflIcts are con-
flicts over the right to prescribe the rules that make up the public order. of the State.
"Whatever solution is adopted, it must be a solution that ensures the nght of ever:
State, as an equal sovereign, to decide for itself upon the precise natu~e of that.publIc
order, to the extent that it can do so without invading and subvertrng the nght of
other States to do likewise.
III. THE FUNDAMENTAL PRINCIPLE GOVERNING
ENFORCEMENT JURISDICTION
In contrast to the principles governing the exercise of p~es~ri~ti:e j~risdiction,
the international law governing the exercise of enforcement JunsdictlOn IS clear ~d
-i;imple. There is one basic principle: enforcement jurisdiction may not be exerCIsed
-in the territory of any other State without the consent of that State. In other words,
enforcement jurisdiction is in principle limited to the territory of the State con~erned.
(In fact, those two propositions are not precisely the same: there are areas outsIde the
territory of a State that do not fall within the territory of another State-for example,
the high seas, and the exclusive economic zones of other States.) .
One particular application of this principle is that the courts ~f one State will
generally not enforce the public laws of another. 'Public laws', in thIS co~text, means
not only criminal laws but also laws relating to matters such as taxanon, that are
quintessentially manifestations of the State's sovereign powe.r, rather th~ l~v:s that
lay down the ground rules for the creation of rights and dunes betwe~n illdIVlduals,
in the way that, say, contract, family, and land law do. The most d.Ifficult laws to
classify on this basis are tort laws. These are in some respects pnvate, b~t m~y
also be viewed as laws by which the State prescribes rules of conduct for SOCIety, ill
the same way that it does in its criminal law, but leaving the enfo:ceme.nt of
those rules up to private parties. This dual nature of tort law is mos~ eVIdent ill US
antitrust laws, where those injured by unlawful anticompetitive practIces are ~~abled
to recover treble damages, as an incentive to act as 'private attorneys general ill the
43 EC-US Agreement on the ApplIcatIon
., .. C omlty
of POSItIve . P' . 1es in the Enforcement of their
nncip
Competition Laws, OJ L173 of 18 June 1998.
 352 VAUGHAN LOWE
JURISDICTION 353

enforcement of the laws. For that reason, English courts have refused to enforce US
antitrust laws. 44 as Argentina did in the trial of Eichmann, there is at least the possibility that
the national State of the abducted individual might complain that its rights, too
It is unusual, but not unknown, for one State to give another permission to
have been violated. As far as the individual is concerned, the position is less clear. In
exercise enforcement jurisdiction in its territory. Perhaps the most significant agree-
some States the illegalitY of the abduction may, as a matter of the domestic law of the
ments of this kind in recent years are the so-called (ship rider' agreements made, for
State, preclude the trial of the individual. In most States, however, it is likely that ~he
example, by the United States with a number of Caribbean States, under which US
illegality of the abduction will be regarded as a matter to be handled by the ExecutIve,
navy vessels may in certain circumstances enter the territorial seas of the other party
if and when the State from which the defendant is taken complains, but not a matter
in order to pursue and arrest vessels suspected of being engaged in the illicit traffic in
that the trial court needs to take into account. So, for example, in the United States the
narcotic drugs. Similar agreements are being prepared on a multilateral basis in
most egregious violation of international law appears to be insufficient to constitute
order to facilitate· international action against narcotics traffic pnd maritime
terrorism. a bar to the trial of the abducted defendant: even the sand-bagging of suspects and
the smuggling of their comatose bodies back to the United States was he~d t? ?e no
Ordinarily, where an alleged offender who is sought for the purposes of prosecu-
obstacle to their trial before a US court, on the curious ground that the mdividuals
tion is within the territory of another State, the State that seeks him must· request
did not enjoy the protection of US Constitutional safeguards while they were. outside
the State where he is found to surrender him. Many States are, under their own
US territory.45 The English courts adopt a somewhat different approach. Havmg long
domestic law, bound not to surrender individuals except in accordance with an
taken the view that it was no concern of the court how the defendant happened to
extradition agreement that is in force with the requesting State. In addition, some
have arrived before it, in more recent years the courts have moved towards the view
States are bound under their own law not to surrender their nationals to foreign States
that the forcible abduction of defendants in violation of agreed procedures may be
under any circumstances. There is a rich body of international law and practice
so serious as to amount to an abuse of process, in which case their trial should
concerning the interpretation and application of extradition treaties, but shortage of
space precludes its discussion here. not proceed. 46 Such a finding will, however, be unusual, and be made only where t~e
British police or prosecuting authorities have themselves acted illegally ~r collude~ m
It is not unknown for States to attempt to obtain custody of alleged offenders
unlawful procedures in order to secure the presence of the defendant m the l!rnt~d
without going through the formalities of extradition procedures -or, indeed, any
Kingdom, or have violated international law or the law of a foreign State or otherwIse
other formalities. For example, individuals are sometimes simply transported over
abused their powers.47
national borders into the hands of law enforcement officers on the other side. This
appears, for example, to have been the way in which many members of the European
terrorist organizations such as the Red Brigades and the Baader-Meinhof Gang
were moved around Europe in the 1970s. On occasion, States have gone fu~ther, and
IV. CONCLUSION
themselves seized wanted persons from the territory of another State. Such actions
patently violate the territorial sovereignty of the State from which the persons are
This chapter has surveyed, albeit briefly, the principles of internationall~w ~overning
seized. If that State should retrospectively (consent' to the seizure, that may cure the
exercises of legislative and enforcement jurisdiction. These are truly prmClples, and
illegality; alternatively, the State may declare that it does not intend to pursue the
not rules. The difficulties of applying the principles rigidly have been noted, and are
question of the violation, and will regard the matter as closed. This seems to have
implicit in the nature of jurisdiction. It is not possible to devise strict rules that :V-0uld
happened, for instance, in relation to the seizure, apparently by agents of the govern-
divide jurisdiction between sovereign States in any practical manner. The solutIOn to
ment of Israel, of Adolf Eichmann from Argentina. Initially unaware of Eichmann's
jurisdictional problems has to be found by increasing the sensitivity of S:ates to the
abduction, the government of Argentina subsequently agreed to abandon its claim for
reparation for the violation of its territorial sovereignty. constraints imposed by international law, and also to the fact that the ~terests of
other States demand respect. It should be clear that if in any case the exerCIse by one
What is the position if a State seizes an accused person, in violation of territorial
State of its jurisdiction threatens to subvert the laws that another State has enacted to
sovereignty of another State, and then puts that person on trial in its own courts? As a
matter of international law, one might say that the subsequent trial compounds the
violation of the other State's territorial sovereignty; and even if that State acquiesces,
45 See US v Toscanino, 500 F.2d 267 (1974); US v Verdugo-Urquidez, 494 US 259 (1990); US v Alvarez-
Machain, 112 S Ct 2188 (1992).
44 See the submissions of the Attorney-General in Rio Tinto Zinc v Westinghouse Corp [1978} AC
46 Bennett v Horseferry Road Magistrates' Court [1994] 1 AC 42; [1993] 3 All ER 138 (HL). And see the
547 (HL). South African case of State v Ebrahim (1992),31 ILM 888.
47 R v Staines Magistrates Court, ex parte Westfallen [1998] 4 All ER 210.
 JURISDICTION 355
354 VAUGHAN LOWE

SCHLOSSER, P (2000), 'Jurisdiction and

International Jurisdiction Revisited
regulate life in its own territory, in the exercise of its sovereign right to choose how International Judicial and Administrative
after Twenty Years', 186 Recueil des
to organize life within its borders, the boundaries of lawful jurisdiction have been Co-operation', 284 Recueil des Cours 9.
Cours 9.
over-stepped. If States wish to do more than they are able to do within the 14nits of
the jurisdiction allowed to them, they must first seek the agreement and cooperation
of other States.

REFERENCES

AKEHURST, M (1972-73), 'Jurisdiction in LOWENFELD, A (1995), 'Conflict,

International Law', 46 BYIL 145-217.
BROWNLIE, I (1998), Principles of Public
International Law, 5th edn (Oxford:
Oxford University Press).
CASSESE, A, GAETA, P, and JONES, JRWD
(2002), The Rome Statute of the Inter-
national Criminal Court: A Commentary
(Oxford: Oxford University Press).
HALL, W (1895), A Treatise on International
Law, 5th edn (Oxford: Clarendon Press).
LOWE, V (1983), Extraterritorial Jurisdic-
tion (Cambridge: Grotius Publications).
- - (1997), 'US Extraterritorial Jurisdic-
tion: the Helms-Burton and D'Amato
Acts', 46 ICLQ 378-390.
Balancing of Interests, and the Exercise
of Jurisdiction to Prescribe: Reflections
on the Insurance Antitrust Case, 89
AJIL42.
O'CONNELL, DP (1970), International Law,
2nd edn (London; Stevens).
OPPENHEIM (1992), JENNINGS, SIR Rand
WATTS, SIR A (eds), Oppenheim's
International Law, 9th edn (Harlow:
Longman).
TWISS, SIR T (1884), On the Rights and
Duties of Nations in Times of Peace
(Oxford: Clarendon Press).
VERHOEVEN, J (2000), Droit international
public (Brussels: Larcier).

FURTHER READING

Curiously, there is no satisfactory modern monograph on jurisdiction. There are, however,

some good articles that discuss the basic principles of jurisdiction in international law in
the light of the various disputes that have arisen over the years:

AKEHURST, M (1972-73), 'Jurisdiction in - - (1985), 'The Problems of Extra-

International Law', 46 BYIL 145. territorial Jurisdiction: Economic Sover-
BOWETT, DW (1982), 'Jurisdiction: eignty and the Search for a Solution', 34
Changing Patterns of Authority over ICLQ724.
Activities and Resources', 53 BYIL 1. MANN, FA (1964-1), 'The Doctrine of
LOWE, V (1981), 'Blocking Extraterritorial Jurisdiction in International Law', III
Jurisdiction: the British Protection of Recueil des Cours 1.
Trading Interests Act, 1980',75 AJIL 257. - (1984-III), 'The Doctrine of
 11
INTERNATIONAL LAW AND
RESTRAINTS ON THE
EXERCISE OF JURISDICTION
BY NATIONAL COURTS
OF STATES
Hazel Fox

SUMMARY

This chapter examines the methods, which we may call avoidance techniques, by which
States prevent their national courts from deciding disputes which relate to the internal
affairs of another State. Three main avoidance techniques are used: immunity, act of
State, and non-justiciability. This chapter will examine all three doctrines, and examine in
some detail the operation of the restrictive doctrine of State immunity. The chapter will
end with a discussion of the arguments for and against the current prohibition on the
determination of one State's disputes in th.e national courts of another State and identify
the challenges today which the rule of law, an individual's right of access to court, and the
implementation of jus cogens norms present to the maintenance of these avoidance
techniques.

1. INTRODUCTION

International law limits the independence of anyone over-powerful State by making

legal equality a consequence of statehood with an accompanying obligation on
all States to respect each other's independence and equality. That respect is given
expression in an obligation of non-intervention in the internal affairs of another State
and a prohibition on the settlement of disputes without the consent of all the States to
whom such disputes relate. The obligation of non-intervention is given effect by the
 HAZEL FOX
recognition accorded by other States to the validity of the legislative, adjudicative, and
administrative acts of a State within its permitted area of jurisdiction. The consent
requirement ill dispute settlement is given effect by a rule of exhaustion of local
remedies which provides an opportunity for a State to settle the claim in its own
manner or by the removal of the dispute to the international plane, for diplomatic
settlement. To honour this obligation of non-intervention in international law one
State (known as the forum State by reason of the fact that the court before whom the
proceedings are instituted is located in its territory) employs various methods to
prevent its courts from deciding disputes which relate to the internal affairs of another
State.
Some methods or avoidance techniques exist by virtue of the constitutional or
municipal law of a State so as to restrict a particular court's competence or direct the
case to a more appropriate forum; thus certain matters, such as the recognition of the
existence of another State or government may be reserved to the executive branch of
government; or a court of competence in civil and commercial matters may have no
power to hear a matter relating to public administration; or a common law court may
refuse to hear a case, exercising a discretion on a plea of forum non conveniens to rule
that another forum, having competent jurisdiction is the appropriate forum for the
trial of the case more suitably for the interest of the parties and the ends of justice
(Collier, 2002).1
But the three avoidance techniques with which this chapter is con~erned are more
directly related to a State's obligation to respect the independence and equality of
other States by not requiring them to submit to adjudication in a national court or to
settlement of their disputes without their consent. These three avoidance techniques
are immunity, act of state, and non-justiciability.
Immunity by reason of the sovereign independent status of a State is only available
where proceedings are brought against a foreign State and is a preliminary plea taken
at the commencement of the proceedings. It serves two purposes: first, it debars the
court of the State where proceedings are brought (the forum court or national court)
from exercising jurisdiction to inquire further into the claim; and second, it removes
the claim to ~other process of settlement, most frequently to settlement through
diplomatic channels, though proceedings in the foreign State's own court are also a
possibility. Because it brings a halt to proceedings it is from a potential defendant's
position the most effective plea.
The other two pleas may be raised in proceedings where private persons or a
foreign State is a party. Act of State is a defence to the substantive law requiring the
forum court to exercise restraint in the adjudication of disputes relating to legislative
or other governmental acts which a foreign State has performed within its territorial
limits. Non-justiciability bars a national court from adjudicating certain issues,
I Spiliada MaTtime Corporation v Cansulex Ltd [1987] AC 460; [1986] 3 All ER 843 at 854 and see
Collier, 2002, 7.72-83 and 8.84-105.
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 359
particularly international relations between States, by reason of their lacking any
judicial or manageable standards by which to determine them.
In studying the subject it is important to keep a proper historical perspective. All
three doctrines are based on a concept of the State and have developed to reflect the
changing conception of the role of the State in the international community and its
increasing subjection to the rule of law in both its internal and external dealings. The
doctrine of immunity, in particular has moved from an absolute to an increasingly
restrictive phase, that is from total immunity to the recognition of exceptions to
immunity permitting the institution of certain proceedings in a national court against
a foreign State. The dualist approach of common law which treated international
and municipal law as two separate systems has been considerably modified by the
reception of international standards into common law, without express legislative
enactment.
A description of the three avoidance techniques will now be given followed by a
comparison of their scope.
II. STATE IMMUNITY
A. ORIGINS OF THE PLEA OF STATE IMMUNITY
Following the Treaty of Westphalia 1648 the modern State emerged with its centraliza-
tion of legislative, judicial, and enforcement powers. The need for protection of
representatives of foreign States led to the development of diplomatic immunity
for the Ambassador and members of a foreign embassy. The visits of personal
sovereigns required development of a principle of inviolability of their person and
immediate possessions and entourage as well as immunity from suit in the local court.
The visits of warships of friendly States to national ports required the recognition of
the ships' immunity from local jurisdiction. From these separate regimes, a parallel
concept of State immunity developed to provide protection from national courts'
powers for the legal entity of the State itself.
B. DEVELOPMENT OF THE COMMON LAW RELATING
TO STATE IMMUNITY
Indeed, for the common law it was in the course of formulating an immunity from
the jurisdiction of the national court for warships that the general principle of
State immunity was first established in the leading case of The Schooner Exchange v
McFaddon. 2 The US Supreme Court rejected a creditor's claim for attachment and
ordered the release of a vessel which was present in the port of Philadelphia, having
2 (1812) Cranch 116 (US).
 HAZEL FOX
been seized under a decree of the French Emperor Napoleon and converted into
a public armed ship. The court thereby established the immunity in common law
courts of a ship of war of a State from arrest and process in the courts of another
State. Marshall CJ stated the immunity to be based upon the consent of the territorial
State to waive its exclusive jurisdiction but did so by reference to an implicit obliga-
tion so to do in the law of nations. His subtle reconciliation of the territorial State's
jurisdiction and the foreign State's independence has been the source of much
subsequent comment and was expressed as follows:
This perfect equality and absolute independence of sovereigns and this common interest
impelling them to mutual intercourse and an interchange of good offices with each other,
have given rise to a class of case in which every sovereign is understood to waive the exercise
of a part of that complete exclusive territorial jurisdiction, which has been stated to be the
attribute of every nation,
The English Court of Appeal in The Parlement Belge? applied the ruling in the
Schooner Exchange more widely to cover all ships of a foreign State regardless of
whether they were engaged in public service or trade. It held immune a packet boat
owned by the King of the Belgians involved in a collision in the port of Dover, and
which at the time was carrying both royal mail and passengers and merchandise
for hire.
Despite growing disquiet, the absolute rule, declared in The Parlement BeIge, treat-
ing all acts of a foreign State as immune continued to be observed in English law and
applied by English courts4 until the 1970s. An interdepartmental committee appointed
in 1950 failed to offer any satisfactory reformS and attempts to confine immunity to
the central government of the State, and to exclude departments or agencies which
enjoyed separate legal personality (Baccus SRL v Servicio Nacional del Ttrig06) , or to
treat consent of the State given in an agreement prior to the dispute as constituting
waiver of immunity (Kahan v Pakistan Federation),? were unsuccessful in the English
courts.
By the 1970s developments elsewhere, however, encouraged a bolder approach.
In 1977, the Privy Council in The Philippine Admiral 8 reinterpreted the Parlement
Belge, declaring that it had not laid down the wide proposition that 'a sovereign
can claim immunity for vessels owned by him even if they are admittedly being
used wholly or substantially for trading purposes'. It accorditigly rejected a plea of
immunity in respect of in rem proceedings (that is proceedings for attachment and
sale directed against the vessel itself) brought for goods supplied to a vessel operated
as an ordinary trading ship in which the Philippine government retained an interest.
3 The Parlement Belge (1879-90) 5 Prob Div 197 (CA).
4 The Cristina [1938] AC 485 per Lord Atkin at 49l.
S Interim Report ofInterdepartmental Committee on State Immunities dated 13 July 1951.
6 [1957]1 QB 438; 28 ILR 160.
7 [1951] 2 KB 1003; 18 ILR 210.
8 [1977] AC 373; [1976] 1 All ER 78; 64 ILR 90.
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 361
In the next year the Court of Appeal in Trendtex v Central Bank of Nigeria 9 refused
to allow a plea of immunity as a bar to proceedings against the Central Bank of
Nigeria for failure to honour a commercial letter of credit;lO the court, unanimously,
held that the bank by the terms of its establishment was an independent entity and
not to be treated as part of the State of Nigeria; and, by a majority, that English law'
recognized no immunity in respect of proceedings brought for a commercial activity
such as the issue of a letter of credit. In accepting a restrictive doctrine of immunity in
the common law-a move which was confirmed by the House of Lords in I Congreso
del Partido, the English courts were much influenced by legal developments elsewhere
and these developments finally led to the enactment in 1978 of the State Immunity
Act (SIA) providing for a restrictive scheme of immunity.
C. DEVELOPMENT IN CIVIL COURTS AND THE USA
With increased participation of States in trading activities following the First World
War there was much dissatisfaction with the denial of legal redress against States for
their commercial activities. Certain civil countries, notably in Italy, Belgium, and the
Egyptian mixed courts, led the way in adopting a restrictive doctrine construing
international law as requiring immunity for proceedings relating to acts committed in
exercise of sovereign authority (acta jure imperii) and not for trading activities or acts
which a private person may perform (acta jure gestionis); in 1963, in a magisterial
decision surveying State practice, bilateral and multilateral treaties, and legal writing,
the German Federal Constitutional Court declared that international law permits a
restrictive doctrine of State immunity and that the proper criterion for the distinction
between sovereign and private acts is the nature of the act, not its purpose. It allowed
proceedings by a builder to recover the cost of repair carried out to the Iranian
Embassy holding the repair contract to relate to a non-sovereign act of the foreign
State and hence not to be immune. II .
Further support for the restrictive doctrine was given in the adoption in 1926 of the
Brussels Convention for the Unification of Certain Rules concerning the Immunities
of Government Vessels and later its 1934 protocol, providing that State-owned or
operated ships used exclusively for non-governmental commercial purposes should
enjoy no immunity and be subject to the same substantive legal rights and obligations
as ships owned or operated by private persons for the purposes of trade; and in 1972
by the signature of the European Convention on State Immunity which introduced a
number of exceptions to immunity from adjudication which were broadly based on
the commercial or private law distinction and modified the absolute rule against
9 Trendtex Trading Corporation v Celltral Bank of Nigeria [1977] 1 QB 529; [1977] 1 All ER 881; 64
ILR Ill.
10 A letter of credit is an undertaking given by a bank to pay a certain sum of money on receipt of
documents of title and transport relating to a particular consignment of goods; it may be enforced against the
bank independently of the solvency or any refusal to pay on the part of the consignor.
Jl Empire of Iran Case, 45 ILR 57 at 80 (German Federal Constitutional Court, 30 April 1963).
 HAZEL FOX RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 363

coercive measures by an optional scheme. In 1952 the State Department of the United of a universal convention, in order to ascertain the scope of immunity and the
States announced in the Tate letter that in future US policy would be to follow the exceptions thereto, it is necessary to engage in a comparative law exercise examining
restrictive theory of sovereign immunity and in 1976, in part responding to the need the legislation and case law of the principal municipal jurisdictions.
of commercial banks financing sovereign States' debt to have legal recourse, Congress Becau.se of the lack of clear international authority, the resolutions of international
enacted the Foreign Sovereign Immunities Act (FSIA), being the first legislation to bodies, particularly if passed in the United Nations, may provide valuable indications
introduce the restrictive doctrine into the common law. of what a consensus might be or even, if clearly expressed, of current accepted
principles of international law. Therefore attention must be given to the 1991 Draft
Articles on the Jurisdictional Immunities of States and their property prepared by
D. PRESENT DAY SOURCES OF THE INTERNATIONAL
the International Law Commission (1991 ILC Draft Articles) and which have been
LAW OF STATE IMMUNITY
under consideration in the Sixth Committee of the UN General Assembly for the last
There is still an absence of authority relating to State immunity at the international ten years with a view to adopting some international instrument incorporating them.
level. There is no universal international convention and only eight States (Austria,
Belgium, Cyprus, Germany, Luxembourg, Netherlands, Switzerland, and UK) are
parties to the 1972 European Convention. The recent decision of the International E. THE ELEMENTS CONSTITUTING THE PLEA OF STATE IMMUNITY
Court of Justice in the Arrest Warrant case is the first relevant decision of an inter- 1. The plea as a bar to proceedings before a court
national tribunal. 12 State practice in the form of national legislation and decisions of
State immunity may serve as a bar to proceedings before an international tribunal-
national courts therefore provides the most compelling evidence of international
for example, the Rome Statute of the International Criminal Court provides that a
custom and 'general principles of law', the sources of law referred to in Article
State may not be under an obligation to surrender to the ICC for trial an individual
38(l)(b) and (c) of the ICJ Statute (Crawford, 1983, p 77; Higgins, 1982, p 268). The
present in its territory who, as a representative of another State, enjoys diplomatic
United States, the United Kingdom, Australia, Canada, Malaysia, Pakistan, South
immunity; but its main significance relates to its effect upon the jurisdiction of a
Africa, and Singapore have all enacted legislation on State immunity adopting a
national court.
restrictive approach. 13 Kenya, Ireland, New Zealand, Nigeria, and Zimbabwe have no
The plea concerns immunity from the judicial power of another State, though
legislation, but their courts have accepted that the restrictive doctrine is applicable. 14
the enforcement of that power may also involve the executive power and the adminis-
The civil law systems of France and other western or central European countries apply
trative authorities of that other State. It does not relate to the legislative power of
a restrictive doctrine in their courts. The position as to countries which have enacted
the State-the State's jurisdiction to prescribe-which goes more to the plea of non-
no legislation and have had no or few proceedings before their courts is more difficult
justiciability, act of State, and substantive liability (see below). A State may claim and
to ascertain; Russia appears to be moving to a restrictive position, China's courts
enjoy other privileges and immunities from the forum State such as immunity for its
apply an absolute doctrine. Nonetheless, it can be accepted, as stated by the ILC's
nationals from military conscription or the privilege of payment of no import duties
second Special Rapporteur Motoo Ogiso, that 'there is a clear and unmistakable trend
or preferential rates on petroleum fuel or alcoholic drinks, but these are not the direct
towards recognition of the principle that the jurisdictional immunity of States is not
concern of the plea of State immunity before a court.
unlimited'.15 However, having regard to the diversity of State practice and the absence
2. Procedural plea not an exemption from li.ability
12 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and
Merits, Judgment, ICJ Reports 2002, p 3. The plea is one of immunity from suit, not of exemption from law. Hence if immunity
13 Foreign Sovereign Immunities Act 1976 (USA) (cited as FSIA); State Immunity Act 1978 (UK) (cited as is waived the case can be decided by the application of the law in the ordinary way. 16
SIA); Foreign States Immunities Act 1985 (Australia); Canadian State Immunity Act 1982; Immunities and The underlying liability or State responsibility of the defendant State is unaffected
Privileges Act 1984 (Malaysia); The Pakistan State Immunity Ordinance 1981; Singapore State Immunity Act
1979; The South African Foreign States Immunities Act 1981; Malawi Immunities and Privileges Act 1984
though, as will be seen wher.e no remedy is available in a court of the defendant State,
(No 16 of 1984). Other small common law jurisdictions have enacted similar legislation, eg, St Kitts 1979. the immunity from suit may enable liability to be avoided.
14 Kenya, Ministry of Defence of Government of UK v Ndegna, Kenya Court of Appeal, 17 March 1983, 103
ILR 235; Ireland, Government of Canada v Employment Appeals Tribunal and Burke (1992) ILRM 325, Irish
Supreme Court; New Zealand, Governor of Pitcairn v Sutton (1995) INZLR 426; Zimbabwe, J3arker McCormac
(Private) Ltd v Government of Kenya [1986] CR Comm (Const) 21; Nigeria, Kramer v Government of Kingdom 16 This is well illustrated by the· analogous case of diplomatic immunity where in Dickinson v Del Solar
of Belgium; Embassy of Belgium (1989) 1 CLRQ 126; 103 ILR 299. [1930] KB 376, the court held the company who insured the driver involved in a motor accident liable under
15 Second report, YEILC (1989), vol I, P 59, at para 14, quoting Sinclair, 1980, P 196. See also Brownlie, the policy to pay damages for injuries caused, notwithstanding that the driver as secretary of the Peruvian
1998, p 332. legation enjoyed diplomatic immunity.
 HAZEL FOX
3. Adjudication and enforcement jurisdiction
A distinction is made in the plea of immunity between 'adjudication jurisdiction' and
'enforcement jurisdiction'. The application of coercive measures to a State and its
property involves different and more directly intrusive mechanisms than the ruling
of a municipal court as to liability. Adjudication jurisdiction relates to the court's
inquiry into the claim and adjudication by means of a judgment or declaration of
the rights and obligations; it extends to interlocutory proceedings and appeal.
Enforcement jurisdiction relates to the making and execution of mandatory orders or
injunctions against the State in respect of, for example, restitution, damages, penalties,
production of documents or witnesses, and accounts.
4. A plea available before all judicial and quasi-judicial tribunals
Immunity can be pleaded in any tribunal exercising judicial or quasi-judicial
powers, whether in criminal, civil, family, or other matters, including administrative
tribunals. The position regarding arbitration tribunals is different since they derive
their authority directly from the consent of the parties. Without that consent the
arbitration tribunal has no competence to determine the dispute; however, insofar as
the tribunal looks to the forum State and its courts to enforce an arbitral award, the
plea of State immunity may have relevance (see waiver below).
5. A plea available in civil and crirnin~ proceedings
The plea is generally discussed in relation to civil proceedings, although it also serves
as a bar to criminal proceedings. The immunity of a foreign State in respect
of criminal proceedings in another State remains generally absolute. However, the
growing consensus that perpetrators of international crimes should not go
unpunished has encouraged national courts to prosecute high ranking State officials.
In 1999 in Pinochet No 3,17 the Judicial Committee of the House of Lords declared that
a former Head of State present in England had no immunity from extradition pro-
ceedings, brought at the request of the State of the nationality of some of the victims,
relating to the alleged offence of State torture under the 1984 UN Torture Convention,
that is proceedings relating to an international crime involving violation of a funda-
mental human right, even though committed while in office and for the purposes of
the State. This decision, which has led to proceedings being initiated in the national
courts of other countries against serving18 as well as former Heads of State, 19 marks a
17 R v Bow Street Metropolitan Stipendiary, ex parte Pinochet Ugarte (Amnesty International
Intervening) (No 3) [2000] 1 AC 147; [1999] 2 All ER 97. See Fox, 1999.
18 SOS Attentat and Castelnau d'Esnault v Qadafji, Head of State of the State of Libya, France, Court of
Cassation, criminal chamber, l3 March 2000, No 1414; the court quashed a ruling of the Paris court of appeal
that absolute criminal immunity of a serving Head of State was subject to an exception in respect of a terrorist
offence of use of explosives causing the destruction of an aircraft in flight and loss of life to French nationals.
19 Habre, Senegal Court of Cassation, Dakar, 20 March 2001; Le Monde, 21 March 2001 the Court annulled
a prosecution initiated against the former President of the State of Chad for alleged complicity in acts of
torture.
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 365
significant change in the application of the absolute rule of immunity from criminal
proceedings to individuals who represent the State. However the International Court
of Justice has ruled that immunity from criminal jurisdiction continues for a head of
State or other high ranking official of the State for acts committed whilst in office.
6. Waiver
Since the plea of immunity acts as a personal bar ratione personae it may be removed
by consent of the defendant State. Accordingly, if the beneficiary State waives the
immunity, the national courts of the other State will have jurisdiction to proceed
against it. Modern law has broadened the occasions on which consent may be given;
but three conditions remain-(a) that consent to waive the immunity must be given
by the State itself not by the agency or individual performing the sovereign act on
the State's behalf, (b) its expression be unequivocal and certain; (c) that waiver of
immunity from execution requires a separate waiver from immunity from adjudica-
tion. US law interprets these requirements to permit implied as well as express con-
sent to waive both immunity from jurisdiction and from execution, but waiver of
immunity from pre-judgment attachment of a State's property must be by express
consent. 20 English law is narrower; it has abandoned the strict requirement that
submission be made in the face of the court (to the judge hearing the case), but still
requires that separate consents to both jurisdiction aH.d execution be given in
writing. 21
Implied consent to local proceedings has been used to develop the restrictive doc-
trine-if the State consents to trade then it is deemed to consent to adjudication of
disputes with private parties relating to such trade by the courts and law of the place
where that trade is conducted. Similarly, reliance has been place on the consent of a
State contained in an arbitration agreement to support the supervision of an arbitral
process by the national courts of the State where the arbitration takes place or whose
law is applicable. More controversial is whether consent to arbitration can be
construed as consent to the execution of the award either by the courts of the State
where the arbitration is held or by courts elsewhere. To avoid such fictional extensions
of consent, section 9 of the UK Act, along with other common law legislation,
has enacted an express exception to immunity for proceedings which relate to an
arbitration. More recently, it has been unsuccessfully argued that implied consent
justifies the removal of immunity for claims arising from the commission of war
crimes and crimes against humanity, the argument being that if the State consents to
acts which contravene international obligations voluntarily assumed by treaty then it
must be deemed to consent to the removal of immunity for such crimes. 22 However,
this line of argument has been rejected. US courts have held that the provision in the
20 See US FSlA ss 1605(a)(l), 161O(a)(l) and (d)(l).
21 Consent that UK law shall apply is not to be regarded as submission to jurisdiction (SIA s. 2(2».
22 Siderman de Blake v Republic of Argentina, 965 F.2d 688 (9th Cir 1992); 103 ILR 454; Princz v Federal
Republic of Germany, 26 F.3d 1166 (DC Cir 1994); 103 ILR 594.
366 HAZEL FOX
FSIA relating to implied waiver is subject to an intentionality requirement. 'Implied
waiver depends upon the foreign government's having at some point indicated its
amenability to suit' .23
F. DEFINITION OF THE FOREIGN STATE FOR THE PURPOSE
OF STATE IMMUNITY
Application of a restrictive doctrine has brought about a change in focus from the
person of the State to the acts performed by the State or its agents, from status to
function; the question is less whether an entity established, managed, or funded by the
State is immune ratione personae and more whether the act performed by whosoever
is of governmental nature and hence immune ratione materiae. Nonetheless the rela-
tionship between an agency and the foreign State remains important in determining
the extent to which immunity, and its special procedural requirements of notice of
proceedings and judgments and delayed time limits, apply to State agencies. The US
Act goes so far as to treat all instrumentalities and agencies as coming within the
definition of a foreign State for the purposes of immunity. Other jurisdictions dis-
tinguish between the central organs or departments of government which come
within the protection of State immunity and other State agencies; the UK SIA s. 14( 2)
only confers immunity where such 'a separate entity' acts in exercise of sovereign
authority and the circumstances are such that the foreign State itself would be
immune. Whether the entitlement to immunity depends on the act of the agency
being authorized by the State or performed in exercise of sovereign authority remains
controversial, and is unresolved in the lLC's Draft Articles. In the English Act the
central bank of a State, whether or not a department or separate entity, is treated as
the State for purposes of enforcement. (SIA s. 14(5) ).24
G. EXCEPTIONS TO ADJUDICATION JURISDICTION
Today there is widespread acceptance that the immunity of the foreign State from
adjudication jurisdiction may properly be restricted by exceptions, whereas immunity
from enforcement jurisdiction remains largely absolute.
Exceptions from State immunity which are widely recognized include proceedings
relating to contracts which a private party may enter or are of a commercial nature,
contracts of employment other than those with nationals of the sending State engaged
in public service, immoveable property, personal injuries, or damage or loss to
property of a tangible nature, and proceedings relating to the operation of sea-going
ships and their cargo. The US Act stands alone in removing immunity for claims in
respect of expropriation of property contrary to international law. As explained in
the Empire of Iran case, 'the generally recognised sphere of sovereign activity' which
23 Princz, op. cit. at 1174.
24 See below as to immunity conferred on the property of a central bank.
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 367
remains immune 'includes the activities of the authorities responsible for foreign and
military affairs, legislation, the exercise of police power and the administration of
justice'.
The main exception in the restrictive doctrine relates to commercial transactions
between a private party and the foreign State; (immunity is preserved where the sole
parties to an agreement are States and in respect of contracts made in the territory and
governed by the administrative law of the foreign State).
It has proved difficult to find a workable criterion, particularly for borderline cases,
by which to distinguish a commercial transaction from one in exercise of sovereign
authority. The competence of civil courts as in France is restricted to civil and com-
mercial matters, and does not extend to public and administrative matters; it is,
therefore, not too difficult to apply the civil court's criterion of an act or transaction
in which an individual may engage, as opposed to 'un acte de puissance publique ou un
acte qui a ete accompli dans l'interet d'un service public' to proceedings brought against
a foreign State. A reflection of this approach is to be found in Artide 4 of ECSI which
allows an exception for proceedings relating to an obligation of a State by virtue of a
contract-a contract being a legal transaction in which a private person may engage.
Applying the same approach to non-contractual claims, immunity was refused by the
Austrian Supreme Court when sought by the United States in respect of a claim
for damages arising out of a road accident due to the negligence of an embassy driver
when collecting the mail of the US air attache. 25 The court distinguished a sovereign
act from a private one, such as the operation of a motor car and the use of public
roads, where the relationship between the parties was on the basis of equality with
no question of supremacy, rather than subordination; in applying the distinction
the court looked to the nature of the act of driving as opposed to its purpose, being
the collection of mail betWeen government departments.
Common law courts are generally not of limited competence and consequently
have no national practice as to what constitutes an act performable by a private
person as opposed to a State. But mindful of the underlying rational of the restrictive
doctrine-that States which engage in trade should be amenable to jurisdiction-they
have applied a test of commerciality in determining the non-immune nature of the
proceedings.
Section 1605(2)(a) of the US FSIA removes immunity where claims are based upon
a commercial activity and section 1603(d) provides that 'The commercial character of
an activity shall be determined by reference to the nature of the course of conduct
or particular transaction or act, rather than by any reference to its purpose'. Com-
merciality is not defined by the US Act and conflicting and inconsistent decisions
have been given in proceedings relating to development of natural resources, foreign
assistance programmes, and government exchange control. Thus US courts have held
immune the cancellation of an agreement licensing the export of rhesus monkeys,26
2S Holubekv The Government of United States, Austrian Supreme Court, 10 February 1961,40 ILR 73.
26 Mol Inc v Peoples Rep of Bangladesh, 736 F.2d 1326 (9th Cir 1994) cert denied 105 S Ct 513.
 HAZEL FOX
and mistreatment by police resulting from a whistle-blowing complaint made in the
course of employment under contract in a hospital;27 and held non-immune a technical
assistance contract u1;l.der which the contractor enjoyed diplomatic immunities and
tax exemption,28 a foreign government's undertaking to reimburse doctors and the
organ bank for kidney transplants performed on its nationals in US hospitals,29 and a
restriction on the payment of government-issued bonds due to a shortage of foreign
reserves;30 and evaded determining the issue whether the leasing of prisoners of war
as slave labour by the Nazi regime to German industrial concerns constituted a
commercial activity.31
To avoid such difficulties the European Convention, the UK Act, and similar
legislation of other Commonwealth States have adopted a listing method by which
proceedings relating to specific categories of commercial transactions are listed as
non-immune; thus section 3 of the UK SIA lists as non-immune commercial trans-
actions 'sale of goods or supply of services', and 'loans or other transaction for the
provision of finance, guarantee or indemnity of any such transaction or of other
financial obligation' (section 3(3)(a) and (b)); and both that Act and the 1972
European Convention also make non-immune proceedings relating to certain con-
tracts of employment, to participation in companies or associations, and to claims
relating to patents, trademarks, and other intellectual property rights (ECSI Articles,
5,6, and 8; SIA ss 4, 7 and 8). Even with this method provision has to be made for a
residuary category which turns on the application of the public/private act distinction
and the cases of I Congreso del Partido (whether disposal of a cargo by a State agency
contrary to terms of the contract of carriage on orders of the State for political
reasons was immune),32 and Kuwait Airways Corp v Iraqi Airways Co (whether seizure
and transfer of Kuwaiti aircraft to Iraq after the invasion of Kuwait with a view to
incorporation in the Iraqi civil airfleet was immune),33 demonstrate the difficulty of
distinguishing a commercial transaction from an act in exercise of sovereign author-
ity. The accepted solution applied by English courts is to determine the nature and not
the purpose of the activity. But when applied to determine the nature of use of funds
in a bank account of a diplomatic embassy this test proved arbitrary; such funds could
be treated as deployed on purchases of goods and services, clearly commercial acts, or
more broadly for the discharge of diplomatic functions which was clearly activity in
exercise of sovereign authority.34
27 Saudi Arabia v Nelson, 123 LEd 2d 47 (Sup Ct 1993); 100 ILR 544.
28 Practical Concepts v Republic of Bolivia, 811 F.2d 1543 (DC Cir 1987); 92 ILR 420.
29 Rush-Presbyterian-St Luke's Medical Center v the Hellenic Republic, 877 F.2d 574 (7th Cir 1989) cert
denied 493 US 937; 101 ILR 509.
30 Republic of Argentina v Weltover, 504 US 607(1992); 100 ILR 509.
31 Princzv Federal Republic of Germany, 26 F.3d 1166; (DC Cir 1994); 33 ILM 1483.
32 I Congreso del Partido [1983]1 AC 244; [1981] 2 All ER 1064 (RL), 64 ILR 307.
33 Kuwait Airways Corp v Iraqi Airways Co [1995] 3 All ER 694 (RL); 103 ILR 340.
34 In Alcom Ltd v Republic of Colombia and Others the Court of Appeal adopted the first view [1983]
3 WLR 906; [1984] 1 All ER 1 and the Rouse ofLords the second [1984] AC 580; [1984] 2 WLR 750; [1984]
2 All ER 6 (RL).
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 369
Faced with these difficulties, Lord Wilberforce reformulated the test in a much
cited passage:
... in considering, under the restrictive theory, whether State immunity should be granted
or not, the court must consider the whole context in which the claim against the State is
made, with a view to deciding whether the relevant act(s) on which the claim is based
should, in that context, be considered as fairly within an area of activity, trading or com-
mercial or otherwise of a private law character, in which the State has chosen to engage or
whether the relevant activity should be considered as having been done outside the area and
within the sphere of governmental or sovereign activity.35
Courts have relied on the passages from the Empire of Iran Case and Lord Wilber-
force's words in Congreso in deciding cases both under the statute,36 and under the
common law, to apply a purposive construction of the public/private criterion,
referring to the whole context and the place where, the persons by whom the acts were
alleged to be committed, and those who were designed to benefit from the conduct
complained of. Thus, a complaint of libel contained in a report of a supervising
officer of a civilian lecturer engaged to give a course to visiting US forces,37 and a
claim of medical negligence against a service doctor treating an airman on a US base
in the UK,38 although the acts by their nature were ones which a private person might
commit, were held to be immune as performed in the exercise of sovereign authority
by reason of the service personnel involved and the commission of the acts in
pursuance of the purpose of maintaining an efficient fighting force.
The International Law Commission has engaged in lengthy debate as to the extent,
if at all, account should be taken, in providing a commercial transaction exception to
State immunity, of its purpose as well as its nature. Its 1991 Draft Articles provides
that in determining whether a transaction is commercial for the purposes of an
exception:
Reference should be made primarily to the nature of the ... transaction, but its purpose
should also be taken into account if, in the practice of the State which is a party to it, that
purpose is relevant to determining the non-commercial character of the ... transaction
(Article 2.2.).
The reference to purpose is in part designed to accommodate the concerns
of certain developing States to retain immunity for contractual transactions vital
to their economy or to disaster prevention or relief. In the UNGA Sixth Com-
mittee industrialized States have expressed their opposition to any reference to
purpose; in a second reconsideration the ILC has recommended the deletion of such
a reference.
Whatever formula may be adopted, it should be recognized that, whilst State
35 I Congreso del Partido [1983]1 AC 244; [1981] 2 All ER 1064 at 1074 (RL); 64 ILR 307.
36 Propend Finance Pty Ltd v Sing, III ILR 611 (CA), 2 May 1997.
37 Holland v Lampen-Wolfe [2000]1 WLR 1573; [2000] 3 All ER 833 (RL).
38 Littrellv USA (No 2) [1994] 4 All ER 203; [1995] I WLR 82; 100 ILR 438.
370 HAZEL FOX
practice broadly agrees on the everyday business activities which come within the
commercial exception, the distinction into acta jure gestionis, jure imperii produces
uncertainty, is logically unsound-is a State loan to a student a commercial trans-
action or a governmental act?-because it assumes State activities are divisible into a
dichotomy of two discreet categories, and penalizes the State which adopts private law
methods in conducting its public business.
In addition to the various exceptions which remove immunity for specified com-
mercial activities, State practice in legislation and court decisions allows an exception
for certain non-contractual delictual activities of a foreign State. Thus, for example,
SIA s. 5 removes immunity from proceedings in respect of death or personal injury,
and damage to or loss of tangible property caused by an act or omission in the
UK. Three comments are -relevant to understanding the scope of this exception for
delictual or tortious conduct of a foreign State. First, its scope is narrow, being con-
fined to physical infliction of damage to the person or property; proceedings relating
to false, defamatory, or negligent statements are not included and this exclusion
ensures that much delictual conduct arising from complaints as to the information or
publications of a foreign State remains immune. Secondly, the exception only relates
to wrongful conduct of a foreign State committed in the territory of the forum State
(ECSI Article 11 is even stricter limiting to proceedings where the author is present in
the forum State at the time when the facts occurred). Thirdly, the exception in the SIA
and other common law legislation contains no requirement that the personal injury
or damage to property be caused in the course of commercial activity; injury or
damage resulting from an act in exercise of sovereign authority is recoverable, as for
example proceedings for State-ordered assassination of a political opponent which
has been held non-immune under a similar tort exception in the US-FSIA. However,
not all jurisdictions accept such a wide removal of State immunity for non-
contractual claims; the European Court of Human Rights after a survey of State
practice, concluded that a 'trend in international and comparative law towards limit-
ing State immunity in respect of personal injury caused by an act or omission within
the forum State' refers primarily 'to "insurable" personal injury, that is incidents
arising out of ordinary traffic accidents, rather than matters relating to the core area
of State sovereignty such as the acts of a soldier on foreign territory which, of their
very nature may involve sensitive issues affecting diplomatic relations between States
and national security'.39
The second requirement of a jurisdictional connection with the territory of the
State in which a national court asserts jurisdiction over a foreign State highlights
the general question whether the jurisdiction of national courts over foreign States is
conditional on some close link with the territory of the forum State, and whether
such a link is the same or stricter than that which principles of private international
law provide for civil litigation between private parties. Both ECSI and the US FSIA
require that there be a nexus or jurisdictional connection with the forum State in
39 McElhinney v Ireland and UK, Judgment of21 November 2001, ECtHR, para 38, 34 EHRR 13.
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 371
respect of every exception to State immunity that they provide for. That jurisdictional
connection for some exceptions, as with employment contracts and personal injuries,
is stricter than those recognized in private international law for private party litiga-
tion. The UK and other common law jurisdictions which follow the SIA are alone in
stipulating no additional jurisdictional link for the commercial transaction exception
other than those required in ordinary litigation for the exercise of extraterritorial
personal jurisdiction under Civil Procedure rule_6.26 (formerly Order 11, rule 1) or
like common law procedures.
For proceedings which are clearly identical to those brought in private litigation,
there may be no need to require any special jurisdictional link where the defendant is
a foreign State. But for proceedings which relate to conflicts of jurisdiction between
States, the plea of immunity serves to demarcate the limits of State jurisdiction exer-
cisable over the public acts of another State. It may, therefore, in the absence of agreed
rules of allocation of jurisdiction between States, be necessary to specify the juris-
dictional connection of the proceedings which permits removal of immunity and the
exercise of jurisdiction by the court of another State.
H. IMMUNITY FROM EXECUTION
Unlike the restricted immunity from adjudication which it enjoys today, a foreign
State continues largely immune from forcible measures of execution against its person
or property. Professor Sucharitkul, the ILC's Special Rapporteur has even gone so far
as to describe immunity from execution as 'the last fortress ... the last bastion of State
immunity' .40
1. Immunity of the person of the State or representatives from coercive measures
Immunity from measures against the person of the State remains absolute. As recently
confirmed by the International Court of Justice in the Arrest Warrant case, no head
of State, head of government, or Minister for Foreign Affairs whilst in office may be
arrested by order of the national court of another State or preliminary measures such
as the issue or international circulation of an arrest warrant taken against such
persons.4l Nor mayan injunction or order for specific performance be directed by
a national court against a foreign State on pain of penalty if not obeyed. Thus the
Netherlands Supreme Court has ruled that it has no jurisdiction to declare a foreign
S~ate bankrupt:
Acceptance of this jurisdiction would imply that a trustee in bankruptcy with far-reaching
powers could take over the administration and the winding up of the assets of a
foreign power under the supervision of a Dutch public official. This would constitute
40 YEILC (1991), vol II (part two), p 13, Commentary to ILC Draft Articles, Article 18, para 1.
41 Arrest Warra!lt of 11 April 2000 (Democratic Republic of Congo/Belgium), Preliminary Objections and
Merits, Judgment, ICJ Reports 2002, p 3, paras 62-71.
372 HAZEL FOX
an unacceptable infringement under international law of the sovereignty of the foreign State
concerned.42
For this same reason the UK SIA s. 13(1) prohibits the imposition of any penalty by
way of committal or fine in respect of any failure or refusal by the State to disclose
information or produce any document and s. 13(2) the giving of any relief against a
State by way of injunction or order for specific performance or recovery of land or
other property.
2. Immunity of State property from coercive measures
Some relaxation of immunity would seem appropriate where a judgment is rendered
in respect of a non-immune commercial or private law transaction; one might expect
that the restrictive doctrine would permit the local court to have jurisdiction to
execute such a judgment against the property of the foreign State, by forcible means if
necessary. The practice of the Swiss courts in fact endorses such an approach stressing
'the overall unity of substantive law', and that 'a judgment imports enforceability';
The Swiss Federal Tribunal has held that to refuse execution would mean that the
judgment would lack its most essential attribute, namely that it will be executed even
against the will of the party against which it is rendered. 43
The practice of other States, however, remains more cautious and reflects under-
lying political realities that there is no international law of insolvency to resolve a
State's general inability to meet its financial co~itments. Rescheduling of State debt
continues today as largely a political process. 44 Short of resort to war there is, therefore,
little alternative where property in the control of the debtor State is concerned but to
reach a settlement of judgment debts with its cooperation and by diplomatic means.
In consequence, as declared in another decision of the German Federal Con-
stitutional Court in The Philippine Embasssy case '. . . Whilst the general rules of
international law imposed no outright prohibition on execution by the State of the
forum against a foreign State they do impose material limits on execution'. 45 Such
limits prevent a State from levying execution on property located in its territory of the
foreign State which is in use for sovereign purposes.
3. State property generally recognized as immune
The categories of State property which are generally so recognized as in use for
sovereign purposes and consequently enjoy immunity from seizure, even in the event
42 WL Oltmans v The Republic of Surinam, Netherlands Supreme Court, 28 September 1990 (1992)
23 NYIL 442 at 447.
43 Kingdom of Greece v Julius Bar and Co, Swiss Federal Tribunal, 6 June 1956, 23 ILR, 195. See also
Un:ed Arab Rep~blicv Mrs X, Swiss Federal Tribunal, 10 February 1960, 65 ILR 384.
The recent Insolvency of the Republic of Argentine has given urgency to the proposal of Gordon Brown
UK Chancellor of the Exchequer for a plan for an international bankruptcy procedure which has received the
support of the World Bank.
45 The Philippine Embassy Bank Account case, German Federal Constitutional Court, 13 December 1977,
46 BverfGE, 342; 65 ILR 146 at 184.
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 373
of a general waiver by the State of its immunity from enforcement, include diplomatic
and military property, and property of central banks. The 1991 ILC Draft Articles
adds two relatively new categories, property forming part of the cultural heritage of a
State or of its archives, and property forming part of an exhibition of objects of
scientific, cultural, or historical interest.46 In The Philippine Embasssy case referred to
above attachment was sought of the account of the Philippine diplomatic mission in
Bonn to satisfy a judgment for unpaid rent of an office. The Vienna Convention on
Diplomatic Relations Article 22.3 explicitly provides:
The premises of the mission, their furnishings and other property thereon and the
means of transport of the mission shall be immune from search, requisition, attachment or
execution.
Although the bank account of the mission is not expressly mentioned in this con-
vention, State practice overwhelmingly recognizes that an account of a diplomatic
mission held in a bank in the forum State enjoys immunity unless it can be affirma-
tively shown that the sums deposited have been specifically allocated to meet
commercial commitments.
Ships of war were recognized to be immune from local jurisdiction from the eight-
eenth century or earlier, but the modern category of military property is capable of a
wider meaning. The US Act adopts a broad definition of property used or intended to
be used 'in connection with a military activity', which includes not only all types of
armaments and their means of delivery but also basic commodities such as food,
clothing and fuel to keep a fighting force operative. 47 The existence of such an
immune category exposes sales of military equipment to a plea of immunity from
jurisdiction. Such a possibility would seem to be avoided in English law and come
within the section 3 definition of a commercial transaction provided the sale is in
ordinary private law form and not pursuant to an agreement between States.
As regards the property of a central bank, the practice under the US and UK
legislation and some other States, though some countries have no specific rules on the
matter, supports immunity from execution of property of a central bank where that
bank performs the functions of a central as opposed to commercial bank. Article
19(1)(c) of the 1991 ILC Draft Articles is in line with this practice when it provides
that property of the central bank or other monetary authority of the State shall be
immune and not treated as property in use or intended commercial use unless the
State has expressly consented in writing or specifically allocated or earmarked such
property to satisfy the judgment. The category relating to protection of cultural
property is novel. If restricted to State property on loan for exhibition purposes it
would seem desirable to encourage enjoyment of the cultural heritage of the world.
But the subject is complicated by applicable laws of ownership, State regulation of
46 The immune categories may lose their immunity by express consent or specific allocation.
47 FSIA, s. 1611; Legislative History of the Foreign Sovereign Immunities Act 1976, House Report No
94-1487, 94th Cong., 2nd Sess. 12 reproduced in (1976) 15 ILM 1398 at 30-31.
 HAZEL FOX
374
privately owned national treasures, and claims of individuals to property expropriated
in time of armed conflict.
Apart from these accepted categories of immune property State practice in deter-
mining.when a foreign State's property is in commercial use and subject to execution
remains diverse. Whereas it is relatively easy to determine that a seagoing vessel
equipped with guns and manned by personnel of a State's navy is not to be treated
as property in commercial use, it is much more difficult to ascertain the character of
funds held in the name of a State. Three particular problems arise-what evidence is
available to establish intended commercial use of State property? How are mixed funds
held both for commercial and sovereign purposes to be treated? And is the property
to be attached to have a connection with the subject matter of the claim which it is
sought to satisfy?
4. Proof of use for sovereign purposes
In answer to the first question, the evidence and burden of proof, in the Philippine
Embassy case the German court considered that it would constitute interference con-
trary to international law in matters within the exclusive competence of the sending
State for any inquiry, beyond obtaining the Ambassador's certificate, to be instituted
as to the intended use of funds held in a mission's bank account. A similar position
prevails in English law. By section 13(4) of the UK SIA property in use or intended
use for commercial purposes is made subject to attachment; section 17 defines
<commercial purposes' to mean <purposes of such transactions or activities as are
mentioned in section 3(3)' that is use in relation to a sale of goods or supply of
services, a transaction for provision of finance or a commercial, industrial, pro-
fessional, or industrial activity. In a case seeking attachment of a diplomatic mission's
account for unpaid surveillance equipment the English Court of Appeal construed the
statutory words <intended use for commercial purposes' as covering commercial
transactions entered into by the Ambassador but the House of Lords declared the
current account of a foreign diplomatic mission was held for the sovereign purpose
of meeting the expenses of the mission and was not susceptible of anticipatory
dissection into the various uses, commercial as well as sovereign, to which monies
drawn on it might be used in the future. Only specific earmarking of a fund for
present or future commercial use, the House of Lords held, would meet the exception
to immunity from execution provided in the SIA for commercial property in use or
intended use for commercial purposes SIA s. l3( 4).48
5. Mixed bank accounts
This English decision also provides the answer to the second question relating to
mixed accounts: funds held for both sovereign and commercial purposes in a mis-
sion's bank account remain immune unless a specific account is opened or specific
allocation made for a commercial purpose. This ruling has had its critics. A US
48 Alcom v Republic of Colombia [1984] AC 580; [1984] 2 Wl.R 750; [1984] 2 All ER 6.
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 375
District Court allowed attachment of a mixed diplomatic bank account; exemption of
mixed accounts would in the court's view create a loophole, for any property could
be made immune by using it, at one time or other, for some minor public purpose. 49
A later court however refused attachment of a mixed bank account holding that
such attachment would be contrary to the United States' obligation under Article 25
of the Vienna Convention on Diplomatic Relations to afford full facilities to the
diplomatic mission of a sending State; and the US President, even in the face of federal
legislation removing immunity· from execution of property where judgment was
obtained against commercial property of a foreign State designated as a State sponsor
of terrorism, has by exercise of his waiver, preserved the immunity of mixed accounts
of diplomatic missions in the United States. 50
6. The requirement of a connection between the State property to be attached
and the subject matter of the proceedings
On the third issue, there is a division in State practice. In addition to being located
within the United States and used for commercial activity, the US FSIA requires that
the State property <is or was used for the commercial activity upon which the claim
was based' (s. 1610(2)). This restriction, which is not one the English Act requires,
serves two purposes; it ensures that execution of State property only takes place in
respect of commercial activity which pursuant to an earlier section in the FSIA is
within an exception to immunity and for which consequently the US courts have
jurisdiction. Secondly it limits the property to satisfy the judgment to resources of the
State already committed to the non-immune transaction. This requirement of a
connection between the property and the claim restricts considerably the scope of
the execution permitted against the property of a foreign State. It is to be noted that
the US FSIA only imposes the connection condition when execution is sought against
a State, but not as against a State agency or instrumentality. In this event all property
used for commercial activity is permitted. s1 Where, however, the acts are of a tortious
nature as in the exception for personal injuries, there is unlikely to be any prior
commitment of resources of the State to those a<;:ts, with the consequence that, as the
Second Circuit Appeals Court held, the connection requirement in the FSIA <create[s]
a right without a remedy'. 52
In respect of State property but not the property of a State agency, French law
imposes a similar requirement of a connection between the property to be attached
and the subject matter of the claim, but enlarges it to include prejudgment by saisie
conservatoire. 53 As confirmed in Sonatrach <the assets of a foreign State are in principle
49 Birch Shipping Corp. v Embassy of United Republic of Tanzania, 507 ESupp 311 (DDC 1990); 63 ILR 524.
50 Flatow v Republic of Iran, 74 F.2d Supp 18 (DDC 19 December 1999). See Murphy, 1999, pp 181-186
and Murphy, 2000, pp 117-124.
51 US FSIA s. 161O(b)(2).
52 Letelierv Republic of Chile, 748 F.2d 790 (2nd Cir 1984) at 798; 63 ILR 378.
53 Islamic Republic of Iran v Eurodif, Court of Appeal, Paris, 21 April 1982, 65 ILR 93, Court of Cassation,
14 March 1984, JDI 1984598; 77 ILR 513.
 HAZEL FOX
not liable (subject to) seizure, subject to exceptions in particular where they have been
allocated for an economic or commercial activity under private law which is at the
origin of the tide of the attaching debtor'. 54
Thus, to sum up, the original absolute rule relating to immunity from execution for
State property has been replaced, at any rate in the practice of western industrialized
States, by three rules-the general rule is now confined to the exempt categories and
other property in public use; there is a second rule providing no immunity for State
property in commercial use; and property of separate entities of the State in general
enjoy no immunity from execution.
III. THE OTHER TWO AVOIDANCE TECHNIQUES
A. ACT OF STATE
In accordance with the principles of private international law the applicable law will
generally be the law of the State in whose territory the act takes place and the defence
of act of State broadly provides an application of those principles to legislative
or governmental acts affecting tide to private property, moveable or immoveable,
located within the territory of another State.
The principle enunciated in Underhill v Hernandez 55 that the courts of one State
will not sit in judgment on the acts of the government of another done within its
territory provides a further ground for imposing restraint on the English court. Thus
in the leading case of Luthor v Sagar the English court upheld the validity of an
expropriatory decree relating to timber situated in Russia of the newly established
Soviet government. The governmental nature of the act performed by a foreign
sovereign State was clearly a factor deterring the court from inquiry into the validity
of the expropriation, with Scrutton LJ considering it would be (a serious breach of
international comity' to postulate that its legislation is (contrary to essential principles
of justice and morality'.56 Later cases held the rule of recognition of foreign decrees
applied to aliens as well as to nationals of the foreign State. 57 The act of State defence
is subject to exceptions, which are comprehensively covered by the general statement
that the English court will not enforce a foreign government act if it is contrary
to public policy. It is established that public policy prevents the court from enforcing
the penal or fiscal laws of another countrf8 or discriminatory legislation directed
against particular individuals or a particular class of individuals. In Oppenheimer v
54 Societe Sonatrach v Migeon, France, Court of Cassation, 1 October 1985 rev. crit. 1986, 526, (1987) 26
ILM 998; 77 ILR 525.
55 168 US 250 (1897).
56 Luther v Sagor [1921] 3 KB 532.
57 In re the Claim of Helbert Wagg & Co Ltd [1956] 1 Ch 323; [1956] 1 All ER 129.
58 Government of India, Ministry of Defence (Revenue) Division v Taylor [1955] 1 All ER 292.
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 377
Cattermole 59 a Nazi decree of 1941 which deprived all Jews outside Germany of their
German nationality, was declared obiter dicta to be contrary to public policy as legisla-
tion in contravention of fundamental human rights. At this point questions of non-
justiciability impinge; whether an exception to the act of State rule is permitted
depends not merely on the issue being contrary to public policy but also a justiciable
issue. Recendy in Kuwait Airways Corp v Iraqi Airways Co (No 2) to be discussed
below, the House of Lords have confirmed that the exception to the act of State rule as
contravening public policy is not confined to a foreign State's acts in contravention of
fundamental human rights but also extends to legislation of a foreign State contrary
to fundamental and well-established principles of international law. In doing so the
Lords narrowed the scope of non-justiciability.
B. NON-JUSTICIABILITY
Non-justiciability is a doctrine of uncertain scope. It may be raised as a plea in
proceedings whether or not a foreign State is itself made a party to them, and may
arise both as a preliminary plea or in the course of determination of the substantive
law. In origin it operated in a manner similar to a plea of immunity barring further
inquiry into matters falling within another State's jurisdiction or for international
setdement. But it was reformulated in the Buttes Gas case into a distinct doctrine. In
the words of Lord Wilberforce in Buttes Gas v Hammer, who gave the single judgment
of the Lords:
There exists in English law a more general principle that the courts will not adjudicate upon
the transactions of foreign sovereign States. Though I would prefer to avoid argument on
terminology, it seems desirable to consider this principle, if existing, not as a variety of (act
of state' but one for judicial restraint or abstention. 60
The Buttes Gas case concerned a defamation action between companies in which,
if it were to proceed, in the House of Lords' view, the English court would have to
make a determination on a disputed maritime boundary between foreign States,
involving a series of inter-State transactions from 1969 to 1973, of States' motives and
the lawfulness of actions taken by Sharjah, and possibly Iran and the United Kingdom.
Lord Wilberforce in the single judgment of the court stated:
They have only to be stated to compel the conclusion that these are not issues on which a
municipal court can pass. Leaving aside all possibility of embarrassment in our foreign
relations ... there are, to follow the Fifth Circuit Court of Appeals [in litigation on the same
matter brought in the US courts], no judicial or manageable standards by which to judge
these issues or to adopt another phrase, ... the court would be in judicial no man's land: the
court would be asked to review transactions in which four foreign States were involved,
which they had brought to a precarious settlement, after diplomacy, and the use of force,
59 [1976] AC 249; [1975]1 All ER 538.
60 Buttes Gas and Oil Company v Hammer [1982] AC 888 at 938; [1981] 3 All ER 616 at 628.
 378 HAZEL FOX
and that at least part of these were 'unlawful' under international law. I would just add, in
answer to one of the respondents' arguments that it is not to be assumed that these matters
have now passed into history so that they now can be examined with safe detachment. 61
Lord Wilberforce in Buttes brought together a number of separate strands of legal
authority relating to the English court's treatment of 'the transactions of foreign
States' which contributed to his general principle of judicial restraint or abstention.
These strands of authority are very diverse; some authorities relate to constitutional
division of powers between the branches of central government, with the courts
having no competence where the legislature enacts laws to give effect to treaty pro-
visions and the executive negotiates and ratifies treaties, declares war, and recognizes
States and the diplomats who represent them. These constitutional limits on the
competence of the judicial branch of government continue in effect today but the
other strand of authority supporting the proposition that 'transactions of independ-
ent States are governed by other laws than those municipal courts administer'62 has
undergone considerable modification with the reception of European Community
and human rights law. Whilst Lord Wilberforce's ruling that courts must declare non-
justiciable matters continues to apply to international relations which depend on
diplomacy, countermeasures, and sanctions, and the use of force for their resolution,
in situations where State practice has been reduced to a generally accepted and certain
rule of law, though of international rather than municipal law, English courts may
find sufficient judicial and manageable standards to determine the issues. In the words
of Lord Nicholls, the principle of non-justiciability does not 'mean that the judiciary
must shut their eyes to a breach of an established principle of international
law committed by one State against another when the breach is plain and indeed
acknowledged.' As Lord Hope in the same case stated 'restraint is what is needed, not
abstention'.63
IV. THE THREE AVOIDANCE
TECHNIQUES COMPARED
The pleas are related one to the other. Respect for the independence and equality of a
foreign State when it is a party to proceedings is achieved by a plea of State immunity
which brings the case to a halt. Where the proceeding is between private parties such
an immediate halt will only take place if by reason of the non-justiciability of the
issues to be determined the court decides that it had no competence to decide them.
In cases where the proceedings between private parties progresses to examination of
61 Op. cit. [1982] AC 888 at 893; [1981] 3 All ER 616 at 633.
62 Cook v Sprigg [1899] AC 572 (PC), Sec. ofState in Council ofIndia v Kamachee Boye Sahaba (1859) 7 Moo
IndApp476.
63 Kuwait Airways Corp v Iraqi Airways CO [2002J UKHL 19, 16 May 2002, paras 26 and 141.
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 379
the substantive law, the court may also conclude that it has no judicial or manageable
standards by which to decide the issues and declare them non-justiciable; alternatively
it may accept a plea of act of State and decide that the recognition of the validity of a
foreign State's governmental act deprives the claim of any basis for its assertion. Thus
by accepting a plea of act of State the English court goes some way to endorsing the
validity of the act of the foreign State whereas in immunity the court remains neutral
merely deciding that it is not the appropriate forum. In exceptional cases, as illus-
trated by the case now to be discussed, where the foreign State's acts constitute a gross
violation of a fundamental principle of international law, the forum court assumes
jurisdiction over matters normally within the territorial jurisdiction of the other
State; exceptionally it will then determine the issues by reference to international law.
The recent case of Kuwait Airways illustrates the operation of the three pleas, but
also in allowing an exception to the doctrines of act of State and non-justiciability
where a clear and generally accepted violation of international law is established,
raises the question whether the plea of immunity should also allow an exception for
acts constituting a gross violation of a fundamental rule of international law. In that
case Kuwait Airways (KAC) brought proceedings in the English court against Iraq and
Iraqi Airways (IAC) for their removal and detention of ten Kuwaiti civilian aircraft
following the invasion and occupation of Kuwait by Iraq in 1990. In the first phase of
the litigation the defendants, the Republic of Iraq and the State agency, IAC pleaded
immunity. The plea was successful against Iraq by reason of procedural inability to
serve the process; it was also successful against IAC in respect of the initial seizure and
removal of the ten civilian aircraft to Iraq on the grounds that these acts were per-
formed in exerCise of governmental authority jure imperi~ namely the prosecution of
aggression, and by SIA s. 14(2) a State entity enjoys the same immunity as the State
where it performs acts in exercise of sovereign authority.64 But a majority of the Lords
held IAC not entitled to immunity once Iraq enacted expropriatory legislation trans-
ferring title from KAC to IAC; it considered lAC was then acting on its own account
conducting the ordinary commercial operation of a civilian airline. Accordingly, a
second set of proceedings was brought by KAC claiming against IAC damages for
conversion of the ten Kuwaiti aircraft by their incorporation into the Iraqi com-
mercial fleet; IAC pleaded act of State and non-justiciability. lAC claimed that the
applicable law to govern title in the expropriated aircraft was the law of the State in
whose territory they were located and by legislation of that State, Resolution 369
enacted by the Iraqi Revolutionary Command Council, title had been vested in IAC.
Whilst accepting that the situation fell within the scope of the act of State doctrine
given that the validity of Iraqi legislation within the territory of Iraq was at issue, the
Lords took the view that public policy required an exception to be made because
64 Kuwait Airways Corp v Iraqi Airways Co, 3 July 1992, Evans J [1995] 1 Lloyd's Rep 25 (CA); [1995] 3 All
ER 694 (HL), 103 ILR 340. See Staker, 1995, p 496. Following dismissal of a petition to the House ofLords to
vary this judgment on the ground that evidence of lAC witnesses was perjured, Kuwait Airways Corp v Iraqi
Airways (No 2) [2001]1 WLR 439, in new proceedings lAC's dealings with the Kuwaiti aircraft have beef! held
to be at all times of a commercial nature [2003] EWHC 31 (Comm), 24 January 2003.
 HAZEL FOX
Resolution 369, along with Iraq's seizure of the planes, constituted 'a gross violation
of established rules of international law of fundamental importance'; there was uni-
versal consensus as to its illegality and clear evidence that recognition of its validity
would be contrary to the UK's international obligations. Accordingly the Lords
determined that IAC's acts incorporating the aircraft into its civil airline constituted
conversion of assets belonging to KAc. 65
The judgment breaks new ground being 'the first decision to hold that acts of a
foreign State within its territory may be refused recognition because they are contrary
to international law' .66 The consequences of that refusal of recognition go beyond a
mere declaration of invalidity; the Lords refused to recognize the law which private
international law rules identified as the proper law to determine both the tortious
nature of the act and the ownership of the aircraft, being the law where the act was
committed and the lex situs, the law where the title was transferred.
The judgment in Kuwait Airways is likely to give rise to much debate. Whilst there
were strong grounds of public policy to give effect to the international condemnation
of Iraq's action in looting the aircraft, the application of public international law,
unlike private international law rules, provides little guidance as to the detailed con-
sequences in municipal law on acts held contrary to international law. It may be that
the proper law of the whole transaction, once the Iraqi legislation was struck down,
was the law of Kuwait. But the Lords' decision made no reference to the law of Kuwait.
The English court, which itself had no substantive connection with the claim-the
original taking was from Kuwait, the alleged conversion in Iraq-it would seem, by
reference to English law, construed the conduct of IAC as tortious and a deprivation
of property although Iraqi law held it to be lawful and IAC to be the owner.
V. THE ARGUMENTS FOR AND AGAINST THE
USE OF AVOIDANCE TECHNIQUES
Three main grounds are given for the grant of immunity to foreign States: first, that
that the national court has no power of enforcement of its judgments against a foreign
State; secondly, that the independence and equality of States prevents the exercise of
jurisdiction by the courts of one State over the person, acts, and property of another
State; and thirdly, that foreign States ought properly to enjoy a like immunity to that
accorded by national courts to their own forum State. Additional grounds are found
in the territoriality of the jurisdiction of the courts of the receiving State and on
reciprocity and international comity.
As shown above, the first ground is in part contradicted by modern State practice
whereby the forum State authorities execute validly obtained judgments against State
65 Kuwait Airways Corp v Iraqi Airways Co [2002] UKHL 19, 16 May 2002.
66 Op. cit. per Lord Steyn at para 114.
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 381
property in commercial use. Whilst the third ground provides support for a general
application of the rule of law, to impose on another State without its consent the
constitutional restraints of municipal law which the forum State accepts smacks of a
new sort of paternal imperialism.
This leaves as the main justification the second ground. Objection may here be
based on the unsatisfactory nature of the restrictive doctrine, as one based on a
distinction lacking objective content and provoking disagreement even among courts
of the same country. But that may be too facile; many rules oflaw are difficult to apply
in borderline cases but work perfectly satisfactorily for the ordinary run of cases.
Although the second ground expressed in terms of independence and equality may
seem outdated, States continue to be the main actors in international relations. Much
is written about the replacement of the club of sovereign States by an international
community representing the interests of all, particularly individuals, yet States remain
the main source of authority and implementation of the law in international relations.
In consequence their qualities of independence and equality encapsulate three prin-
ciples which are given effect in the plea of immunity: the principle of domestic
jurisdiction by which the organization and legal relations of the State are exclusively
or primarily matters for that State to determine; the principle that certain disputes
involving States are to be settled on the international plane, not subjecting the State to
the compulsory jurisdiction of a municipal court of another State: and the rule of
exhaustion of the local remedies which provides an opportunity for the foreign State
to settle the dispute in accordance with its own laws. Reduced to its simplest, the
justification for use of avoidance techniques, particularly of the plea of immunity, is to
allocate in the most appropriate manner suitable to all interests and the ends of justice
jurisdiction between the forum and the foreign States.
VI. CHALLENGES TO IMMUNITY AND
JUDICIAL RESTRAINT
Whilst the competing interests of States may be met by the use of avoidance tech-
niques, they arguably take little account of the interests of the individual or the larger
concerns of the international community as a whole. The English court's greater
willingness to apply international law as demonstrated by the Kuwait Airways case
provides support for a challenge now emerging which maintains that the avoidance
techniques described above should provide no bar to adjudication by the national
courts of the forum State of activities of a foreign State which are contrary to inter-
national law. The restrictive doctrine of immunity currently admits no exception for
acts of a foreign State contrary to international law; to develop such an exception
would indeed be in an 'opposite' direction, as recognized by Lord Millett in Pinochet
No 3, because to date the justificatiop for all exceptions is that they relate to the
 HAZEL FOX
exercise of commercial matters and private municipal law; acts contrary to inter-
national law usually relate to exercise of sovereign authority such as acts of armed
forces or the police. One way of formulating this challenge is in terms of jus cogens, or
peremptory n~rms of international law which by reason of their superior status
override the bar of immunity so as to permit the adjudication of their violation by
national courts. Included in such obligations is the procedural right of access to
justice, the principle of non-discrimination, and certain fundamental human rights
relating to the integrity of the person. The European Court of Human Rights has
addressed these issues; in regard to three separate types of claim, alleged torture
committed abroad in a prison of the foreign State (Adsani), assault by a soldier of
the foreign State while within the territory of the forum State (McElhinney), and
discrimination on the basis of sex for appointment to a post in a foreign embassy
(Fogarty), it was contended that the national courts had wrongly applied immunity to
bar access to a national court and its exercise of jurisdiction. With regard to the right
of access to court pursuant to Article 6(1) of the European Convention of Human
Rights the Court in all three cases confirmed its previous ruling that 'a State could not,
without restraint or control by the convention enforcement bodies, remove from the
jurisdiction of the courts a whole range of civil claims or confer immunities from civil
liability on large groups or categories of persons'. But it distinguished State immunity
from immunities imposed by a single municipal law: it held that State immunity was
a part of the body of relevant rules of international law which the Convention as a
human rights treaty must take into account; the Convention 'cannot be interpreted in
a vacuum' and must 'so far as possible be construed in harmony with other rules of
international law of which it forms part including those relating to the grant of State
immunity' (para 55). The Court declared:
Sovereign immunity is a concept of international law, developed out of the principle par in
parem non habet imperium, by virtue of which one State shall not be subject to the juris-
diction of another State. The court considers that the grant of immunity to a State in civil
proceedings pursues the legitimate aim of complying with international law to promote
comity and good relations between States through the respect of another State's sovereignty
(para 54).67 .
In general, on this view the overriding effect of a jus cogens norms has been restricted;
the doctrine of State immunity is held compatible with obligations under inter-
national law relating to the implementation of jus cogens norms; exhaustion of local
remedies remains the appropriate method of settlement. It therefore follows that
State immunity cannot be struck down as contrary to the right of access to a court.
Nevertheless it will always be necessary to ensure that the barring of a civil right
is not disproportionate to the legitimate aim which State immunity pursues. The
Strasbourg Court held none of the individual claims came within recognized
67 Al-Adsani v UK, Judgment of21 November 2001, ECtHR, para 56, 34 EHRR 11. The other two decisions
are Fogarty v UK, Judgment of 21 November 2001, ECtHR, 34 EHRR 12 and McElhinney v Ireland and UK,
Judgment of21 November 2001, ECtHR, 34 EHRR 13. .
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 383
exceptions to state immunity and that the plea on the facts in each case was legitimate
and proportionate; the exception for proceedings for personal injuries was generally
limited to 'insurable' business acts of a State such as traffic accidents occurring within
the forum State's territory, not to torture in a foreign prison; an act of a visiting
member of the armed forces of another country was clearly an act jure imperii:,
and a claim for discrimination in recruitment of staff to an embassy equally fell
within a State's exercise of authority. Nonetheless the majority eight to seven judges
in favour in Adsani was very slim; to satisfy the Court in future ·that a ban on
civil proceedings against a foreign State for torture pursues a legitimate aim in a
proportionate manner it may be necessary for the forum State to identify some
alternative means available to the victim or the relatives for investigation of the
alleged human rights violations.
Another argument for removal of immunity and judicial restraint in respect of acts
contrary to interna,tionallaw is based on the concept of universal jurisdiction which,
it is claimed, regardless of the plea of State immunity, both permits and requires States
to exercise jurisdiction over certain international crimes. In the Arrest Warrant case
the International Court of Justice has rejected this argument; it made it clear that a
national court cannot exercise universal jurisdiction for war crimes or crimes against
humanity against a serving Minister for Foreign Affairs, nor when he has left office in
68
respect of acts which he has performed in the course of official functions. The strong
separate opinion of Judges Buergenthal, Higgins, and Kooijmans emphasized that
a balance has to be struck between two sets of functions which are both valued by the
international. community. One is the rejection of impunity and the punishment of
the perpetrators of international crimes; the other relates to the law of privileges and
immunities.
VII. CONCLUSION
At the present day the three avoidance techniques, immunity, act of State, and non-
justiciability, though still in use, have been adapted to conform to observance of the
rule of law and of standards of human rights and international humanitarian law. But
the value of these techniques as a restraint on abuse of jurisdiction by States should
not be overlooked. As the above joint separate opinion reminds us, the international
law of privileges and immunities 'retains its importance since immunities are granted
to high State officials to guarantee the proper functioning of the network of
mutual inter-State relations which is of paramount importance for a well-ordered and
harmonious international system'. 69
68 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo/Belgium), Preliminary Objections and
Merits, Judgment, ICJ Reports 2002, p 3, paras 54-6l.
69 Ibid, Joint Separate Opinion ofJudges, Higgins, Kooijmans, and Buergenthal, para 75.
 HAZEL FOX
REFERENCES
BROWNLIE, I (1998), Principles of Public
International Law, 5th edn (Oxford:
Oxford University Press).
COLLIER, JR (2002), Conflicts of Laws, 3rd
edn (Cambridge: Cambridge University
Press).
CRAWFORD, J (1983), 'A Foreign State
Immunities Act for Australia?', 8 Aust
YBIL 7l.
Fox, H (1999), 'The Pinochet Case No 3', 48
ICLQ687.
HIGGINS, R (1982), 'Certain Unresolved
Aspects of the Law of State Immunity',
29 Netherlands ILR 265.
Interim Report of Interdepartmental Com-
Inittee on State Immunities dated 13 July
1951, Public Record Office, CAB 134
(120).
FURTHER READING
Encyclopaedia of Public International Law
(1991), under direction of Bernhardt, 2nd
edn, vol I, Title-Acts of State: this short
piece provides a convenient summary and
comparison of the scope of the US and
English act of State.
Fox, H (2002), The Law of State Immunity
(Oxford: Oxford University Press). A sur-
vey of the entire field of law covered by
State immunity including an analysis of
the 1991 Draft Articles on Jurisdictional
Immunities of States and their Property
as proposed by the International Law
ComInission and debated in the United
Nations Sixth Committee and its working
parties.
LAUTERPACHT, H (1951), 'The Problem of
Jurisdictional Immunities of Foreign
States', 28 BYIL 220: the seminal article
RESTRAINTS ON THE EXERCISE OF JURISDICTION BY NATIONAL COURTS 385
SYNVET, H (1984), 'Quelques reflexions sur excellent summary of the operation of the
l'immunite d'execution de l'Etat etranger', law of State immunity as understood by a
22 JDI: this article in French gives an civil lawyer.
INTERNATIONAL LAW COMMISSION (1991),
Draft Articles on Jurisdictional Immun-
ities of States and their Property.
And Commentary, ILCYB [1991] vol II,
part 2.
MURPHY, SD (1999), 'Contemporary
Practice of the United States relating to
international law', 93 AJIL 16l.
- - (2000), 'Contemporary Practice of the
United States relating to international
law', 94 AlIL 117.
SINCLAIR, I (1980), 'Law of Sovereign
Immunity-Recent Developments', 167
Recueil des Cours 113.
STAKER, C (1995), 'Kuwait Airways Corp. v
Iraqi Airways Co, Casenote', 66 BYIL
496.
which greatly influenced US and UK
lawyers in the adoption of a restrictive
doctrine of State immunity.
SCHREUER, C (1988), State Immunity
Some Recent Developments (Cambridge:
Cambridge University Press). Although
written some fifteen years ago this book
provides an excellent account of the
manner in which courts have applied the
restrictive doctrine of immunity in pro-
ceedings relating to commercial transac-
tions, torts, arbitration and enforcement.
SINCLAIR, I (1980), 'Law of Sovereign
Immunity-Recent Developments', 167
Recueil des Cours 113: this provides a his-
torical account of the adoption of the
restrictive doctrine of State immunity in
both common law and civil jurisdictions.
 12
IMMUNITIES ENJOYED BY
OFFICIALS OF STATES AND
INTERNATIONAL
ORGANIZATIONS
Chanaka Wickremasinghe1

SUMMARY

This chapter seeks to explain the immunities enjoyed by various categories of officials
of States and international organizations involved in the conduct of international
relations. It sets out the broad rationale underlying these immunities as being the facilita-
tion of the processes of communication between States on which international relations
and cooperation rely. The law relating to the various categories of officials is then con-
sidered in turn, noting in particular the extent of the immunities from jurisdiction which
they enjoy.
Finally the question of the inter-relation of the law on immunities (which developed
largely as a 'self-contained regime') with recent developments in the field of inter-
national criminal law is considered. The discussion focuses on the challenges to immunities,
which are presented by measures to end the impunity of those guilty of the most
serious international crimes, through the development of extraterritorial jurisdiction
and the establishment of international criminal tribunals. Recent judicial decisions,
such as the House of Lords decision in the Pinochet No 3 case and the judgment
of the International Court of Justice in the Arrest Warrant case, are reviewed in order
to consider how international law has sought to reconcile these apparently conflicting
priorities.

1 The views expressed here are purely personal. I am grateful to Michael Wood, Doug Wilson, and
Malcolm Evans for helpful suggestions and improvements to an earlier draft.
 CHANAKA WICKREMASINGHE
I. INTRODUCTION
The primary focus of this chapter is on the immunities which officials of States and
international organizations enjoy from the jurisdiction of other States, since it is in
this area that many of the most difficult problems of diplomatic law lie. For these
purposes diplomatic law means the law by which international relations are con-
ducted, and the processes of communication at the public international level are
facilitated. Such communication can occur by a variety of means and in a number
of settings. It includes both eye-catching, single events such as summits between
Heads of States, as well as the more everyday work of foreign ministries, diplomatic
missions, consular offices, and international organizations (James, 1991). THe setting
for such international communication r~ges from simple ad hoc bilateral meetings
of State officials, to the permanent institutionalized cooperation in large international
organizations such as the UN and its specialized agencies.
Diplomatic law has ancient roots, and today comprises a large and in many respects
highly developed body of law, from a variety of sources. These include the 1961
Vienna Convention on Diplomatic Relations (VCDR), the 1963 Vienna Convention
on Consular Relations (VCCR), and the 1969 UN Convention on Special Missions.
Additionally, in relation to. international organizations there is a large number
of treaties which deal with both the privileges and immunities of representatives of
States to international organizations and the privileges and immunities of the officials
employed by those organizations. The best known examples are the 1946 Convention
on the Privileges and Immunities of the United Nations, and the 1947 Convention on
the Privileges and Immunities of the Specialized Agencies. A further important com-
ponent of diplomatic law is the Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons, including Diplomatic Agents 1973. 2
However diplomatic law is not fully codified, and certain categories of those
working in international relations therefore enjoy immunity only by virtue of
customary international law. For example, as we shall see, the law governing the
privileges and immunities of foreign Heads of State and other senior government
officials remains largely uncodified at the international level. To the body of treaties
and custom which comprise diplomatic law, we can also add a number of important
judicial decisions of both international and national courts and tribunals in which its
rules have been interpreted and applied.
In earlier eras, when the range of diplomatic communication was less developed,
its governing law was less sophisticated and the rationales on which that law rested
were broad approximations. In the modern era, however, the legal fiction of extra-
territoriality of foreign missions has been entirely discredited (Brownlie, 1998,
2 For text see (1974) 13 ILM 41. This Convention comprises an important aspect of the duty of protec-
tion States owe to officials of States and international organizations engaged on international business,
providing for broad extraterritorial jurisdiction in respect of crimes relating to attacks on these persons. For
a commentary on its drafting and negotiation see Wood, 1974.
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 389
p 351) and the identification of representatives of a State with the State itself (the
'representative theory') has been subjected to more rigorous rationalization. 3 Accord-
ingly it is now the 'functional necessity' theory which provides the most convincing
explanation of the modern law of diplomacy.4 This theory recognizes that inter-
national cooperation between States, from which political, economic, social, and
cultural benefits flow, is entirely dependent on effective processes of communication.
It is therefore essential that international law should protect and facilitate those
processes of communication, and it is to that end that the modern diplomatic law
seeks to ensure an appropriate balance between the interests of sending and receiving
States. Professor Denza (1998, p 1) observes:
Diplomatic law in a sense constitutes the procedural framework for the construction
of international law and international relations. It guarantees the efficacy and
security of the machinery through which States conduct diplomacy, and without this
machinery States cannot construct law whether by custom or by agreement on matters
of substance.
The primary technique of diplomatic law on which this chapter will concentrate is
the grant of immunity from local jurisdiction. In this respect it is important to note
that international law recognizes two basic forms of immunity from jurisdiction in
relation to officials of States and international organizations.
The first form is immunity ratione personae-ie, immunities enjoyed by certain
categories of State officials by virtue of their office. The functions of certain key offices
of State are so important to the maintenance of international relations that they
require immunity for their protection and facilitation. S These immunities are often
wide enough to cover both the official and the private acts of such office-holders,
since interference with the performance of the official functions of such a person
can result from the subjection of either type of act to the jurisdiction of the receiving
State (eg, if a diplomat is arrested he is unlikely to be able to perform his official
functions whatever the reason for his arrest). This often means that these categories
of official enjoy complete personal inviolability (including freedom from arrest and/
or detention) and absolute immunity from criminal jurisdiction. Immunity from
civil jurisdiction may also be recognized (though given the less coercive nature of
civil jurisdiction, this immunity is limited in regard to certain purely private actions
3 The representative theory suggests that diplomats, as representatives of the sending State should enjoy
the same immunities as the State did itself. The Preamble of the VCDR now states:
The purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance
of the functions of diplomatic missions as representing States ...
In any event it might also be noted that State immunities themselves are now more limited and are
increasingly based on function rather simply status.
4 See introductory comments to Section II, of the ILC Commentary on its final draft articles, 1958 YEILC
vol II, pp 94-5; see also comments of Sir Gerald Fitzmaurice, YEILC (1957), vol I, p 2 at para 10.
S See, for example, the Preamble to the VCDR and the judgment of the ICT in Arrest Warrant of 11 April
2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and Merits, Judgment, ICT Reports
2002,p 3.
390 CHANAKA WICKREMASINGHE
of members of some categories of official).6 However because immunities ratione
personae attach only to enable the functions of particular offices of State, rather than
to benefit office-holders individually, they lapse when he leaves office.
The second form is immunity ratione materiae-these immunities attach to the
official acts of State officials. They are determined by reference to the nature of the
acts in question rather than by reference to the person who performed them. As such
they cover a narrower range of acts than immunities ratione personae, but cover a
wider range of actors-indeed they potentially apply to the official acts of all visiting
State officials. Furthermore because 'they relate to the nature of the act in question, a
former State official can claim the benefit of such immunity for his official acts
performed whilst in office, even after he has left office.
It might be noted that both these forms of immunity operate simply as procedural
bars to jurisdiction, and can be waived by appropriate authorities of the sending State,
thus enabling the courts of the receiving State to assert jurisdiction. The related but
conceptually distinct doctrines 'of non-justiciability and/or act of State are not dealt
with here. Non-justiciability is sometimes confusingly described as immunity ratione
materiae, but is in fact 'distinct from procedural immunity, since it essentially asserts
that the subject matter of the claim is in fact governed by international law (or,
possibly, foreign public law) and so falls outside the competence of national courts to
determine. 7
Further confusion may arise in that these various forms of objection to jurisdiction
are not mutually exclusive but can in fact exist simultaneously (see Barker, 1998).
Cases where different grounds for objection to jurisdiction coexist will usually be
dismissed on the basis of a procedural immunity, since that question must be decided
at the outset of proceedings, and will often be the simplest means of bringing the
proceedings to an end. 8
Despite the considerable constraint which procedural immunities (and other
privileges of foreign diplomatic missions) place on the territorial jurisdiction of the
receiving State, States generally observe them scrupulously. ~~r:h.aps more surprisingly,
despite certain notorious cases of their abuse, there is no substantial body of opinion
which advocates their outright abolition. For example, in response to the St james's
Square Incident of 1984 (in which a police officer, who was patrolling a political
demonstration outside the Libyan Peoples Bureau in London, when she was killed
by a shot fired from within the Bureau), both the Foreign Affairs Committee of
6 Denza, 1998, pp 239-232 notes how, historically, the immunities of diplomats from civil jurisdiction
were less readily accepted than immunities from criminal jurisdiction.
7 See Buttes Gas and Oil Co v Hammer [1982] AC 888, (HL). For the limits of this doctrine see the recent
case of Kuwait Airways Corp v Iraqi Airways Co (No 2) [2002] UKHL 19, 16 May 2002. For the application of
the doctrine of non-justiciability alongside questions of the immunity of a former State official see the
dissenting speech of Lord Lloyd in the Pinochet (No 1) case [1998] 3 WLR 1456 at pp 194-196 and discussed
by Denza, 1999, pp 956-958.
8 Procedurally non-justiciability/act of State is considered as a substantive defence rather than simply an
objection to the jurisdiction of the court, and considered at a later stage of proceedings-for example the
judgment ofLord Goffin Kuwait Ainvays Corp v Iraqi Ainvays Co (No 1) [1995]1 WLR 1147 (HL).
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 391
the UK Parliament and the UK Government considered whether amendment of
the VCDR should be sought, but rejected this on the grounds that it was neither
practicable nor desirable. 9
The generally high level of compliance with diplomatic law is usually ascribed to
the reciprocal nature of diplomatic exchange (see, eg Higgins, 1985). Since each State
is both a sending State and a receiving State, each State has an interest in main-
taining the proper equilibrium between the rights of sending and receiving States.
This explains the restraint shown both by receiving States in respecting the privileges
and immunities of foreign missions, and by members of diplomatic missions in their
conduct while abroad.
It should be noted that diplomatic law has grown up largely as a self-contained
regime, setting out the rights and obligations of receiving States and sending States,
and the remedies available in cases of abuse. This has been observed by the ICp o and is
also reflected in the ILC Articles on State Responsibility, Article 50 of which provides
that States are not permitted to infringe the inviolability of diplomatic and consular
agents, premises, archives, and documents when taking countermeasures (Crawford,
2002, pp 50 and 288-293). However as shall be seen in Section VII below, the inter-
action of diplomatic law with recent developments in other areas of international law,
and particularly in international criminal law, have recently raised difficult problems
which have yet to be fully answered.
II. DIPLOMATIC RELATIONS
The primary, though not exclusive, means of communication between governments
is through the establishment of diplomatic relations, usually involving the exchange
of permanent dIplomatic missions. A diplomatic mission is of course in a position
of considerable vulnerability, being located in territory over which another State
exercises jurisdiction, and thus having limited means available to it for ensuring its
own security. From the earliest times international society has therefore recognized
the need to protect diplomatic agents so as to enable diplomatic exchange (Young,
1964; Barker, 1996, pp 32-55). The rules of international law which govern the
establishment and maintenance of such diplomatic relations are now codified in
the 1961 Vienna Convention on Diplomatic Relations (VCDR). With 180 parties, the
VCDR is amongst the most widely ratified of all international conventions, and it is
probable that even those of its aspects which were originally progressive development
of the law are now considered to reflect customary international law. 11 The VCDR has
9 See Abuse of Diplomatic Privileges and Immunities, FAC First Report 1984-5 (HC 127), at paras 53-57,
and the Government's Reply' (Misc No 5 (1985), Cmnd 9497), at paras 9-11.
10 See United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, paras 86-87.
II Ibid, paras 45 and 62. For analysis of the main issues on which the VCDR represented progressive
development of the law at the time of its negotiation, see Denza, 1998, pp 3-5.
39 2 CHANAKA WICKREMASINGHE
thus been extraordinarily successful in its aim to create a comprehensive legal frame-
work for the conduct of diplomatic relations. 12
A. THE SCHEME OF THE VIENNA CONVENTION ON
DIPLOMATIC RELATIONS
The VCDR seeks to establish a proper balance of the rights of sending and receiving
States. The founding principle set out in Article 2 is that diplomatic relations take
place by mutual consent. Article 3 then sets out the primary functions of a diplomatic
mission:
(a) to represent the sending State;
(b) to protect the interests of the sending State and its nationals;
(c) to negotiate with the government of the receiving State;
(d) to ascertain and report to the government of the sending State the conditions
and developments within the receiving State;
(e) to promote friendly relations between the sending State and the receiving
State, and to develop their relations in economic, cultural and scientific
fields.
The next part of the Convention (Articles 4-19) deals with various procedural
questions in relation to the establishment of diplomatic relations, and in particular
the appointment and accreditation of diplomatic agents. The consent of the receiving
State is required in the form of a prior agrement for the appointment of the Head
of Mission. Denza (1998, p 40) observes:
The justification for the requirement lies in the particular sensitivity of the appointment
of a head of mission and the need, if a head of mission is effectively to conduct diplomacy
between two States, for him to be personally acceptable to both of them.
In relation to other diplomatic agents (except defence attaches) the sending State
does not have to obtain the prior consent of the receiving State (Article 7). Neverthe-
less the sending State must provide notification (and as far as possible prior
notification) to the receiving State of the arrival and final departure (or termination
of the functions) of all members of missions (Article lO).13 Furthermore the receiving
12 Denza, 1998, pp 1-2 suggests three reasons to explain the success of the VCDR. First, that the law in this
area is both long-established and has been relatively stable for a considerable time. Secondly, the important
role played by reciprocity in the maintenance of the rules. Thirdly, the careful attention paid in the drafting
processes of the ILC and in the Vienna Conference itself to producing a text which could command the
general approval of States.
13 It now appears that the UK courts will not consider that notification is a prerequisite to the entitlement
of diplomatic status, R v Home ~ecretary, ex parte Bagga (1990), 88 ILR 404: but see also the earlier cases of R v
Governor of Penton ville Prison, ex parte Teja (1971), 52 ILR 368, R v Lambeth Justices, ex parte Yusufu (1985),
88 ILR 323 and R v Governor of Penton ville Prison, ex parte Osman (No 2) (1988), 88 ILR 378-in relation to
the latter see also the certificate of the Foreign and Commonwealth Office in (1988) 59 BYIL 479.
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 393
State is at any time (including before their arrival in the receiving State), entitled
to inform the sending State that the head of the mission or any other member of
a mission is persona non grata, or unacceptable, without giving reasons for doing
so (Article 9).14 In such cases the sending State must recall the person or terminate
his functions. If the sending State fails to respond the receiving State may after a
'reasonable period' treat the person as no longer enjoying diplomatic privileges and
immunities.
Articles 20-28 concern the privileges and facilities which the sending State
must grant to the mission itself. Thus under Article 22 the premises of the mission
are inviolable, and agents of the receiving State are not entitled to enter them
without the consent of the head of the missi-on. During the drafting work of the
ILC and also during negotiation of the VCDR, it was considered whether there
should be any exceptions to this rule in times of extreme emergency. However
such proposals were overwhelmingly rejected on the grounds that the power of
appreciation would belong to the receiving State, which might lead to abuse. In
1984 during the St James's Square Incident the UK government scrupulously
respected the inviolability of the Libyan Mission throughout, notwithstanding
the terrorist outrage that had been perpetrated from there, and the premises were
not entered until after the severance of diplomatic relations and the vacation of
the premises. 15
Furthermore under Article 22(2) the receiving State is under a special duty to take
all appropriate steps to protect the premises of the mission against all intrusion, and
to prevent disturbances to the peace of the mission or impairment of its dignity.
Thus in the Tehran Hostages case, although those who attacked the US Embassy and
Consular Offices were not actinR on behalf of Iran in the initial phase, Iran was
14 In its Reply to the Foreign Affairs Committee (above, n 9, at paras 689-{)90), the UK government set
out its policy in respect of the kinds of behaviour which would lead to a declaration of persona non grata,
which included matters such as espionage and incitement to violence, as well as other criminal offences. In
addition a serious view would be taken of reliance on diplomatic immunity to evade civil liabilities. Finally
the government also stated a new policy in relation to parking offences, under which persistent failure to pay
parking fines would lead to a review of a person's acceptability as a member of a mission. Denza, 1998, pp 70-
71 notes how the numbers of parking tickets cancelled on grounds of diplomatic immunity fell from over
100,000 in 1984, to just over 2,300 in 1993.
15 During the inquiry into the incident by the Foreign Affairs Committee two possible grounds of entry
into the mission were examined. First, whether there had been a material breach of treaty by Libya entitling
the UK to repudiate it and enter the premises. This was rejected on the basis that the VCDR is a self-contained
regime, with its own remedies in case of breach. The second question was whether the UK would have had
any right to enter the premises under the doctrine of self-defence. The Legal Adviser to the Foreign and
Commonwealth Office told the Committee that self-defence would in principle be available in respect of both
action directed against the State and action directed against its nationals. However he believed the circum-
stances of this case did not justify forcible entry on grounds of self-defence, as the criteria specified in the
Caroline case were not met. The Committee accepted the latter conclusion, but made no comment on the
general point as to the applicability of self-defence as a ground for entering diplomatic premises (n 9,
above, at paras 94-95). Mann, 1990, pp 333-337, argued that the inviolability of premises is conditioned by the
lawfulness of their use, and so the UK government had the right; and the duty, to enter the premises, to search
for and to remove any weapons held there.
394 CHANAKA WICKREMASINGHE
nonetheless responsible for having failed to take appropriate steps to protect the
premises and their occupants. 16
In relation to the duty to prevent any disturbance of the peace of the mission or
impairment of its dignity in normal times, the question of whether to allow peaceful
political demonstrations outside diplomatic missions may require the receiving State
to strike a balance between rights of political expression and the maintenance of its
obligations towards the sending State. 17
Similarly under Article 24 the archives of the mission are inviolable. 18 Free com-
munication of the mission is ensured under Article 27, including the inviolability
of official correspondence, free use of diplomatic bags for diplomatic documents
and articles for official use, and the protection from interference of diplomatic
couriers.
Articles 29-39 deal with the immunities enjoyed by members of the mission. AB
well as jurisdictional immunities (considered below), these include other matters
including the inviolability of the private residence of a diplomatic agent, immunity
from taxes and customs, and exemption from national service requirements in
the receiving State. Thus members of diplomatic missions enjoy wide protections
from interference by the receiving State, which must be given effect in national law,
this being done in the UK by the Diplomatic Privileges Act 1964. However it is
important to emphasize that the rights and privileges are not granted for the personal
benefit of the individuals concerned, but to ensure the efficient performance of the
functions of the diplomatic mission.
By way of quid pro quo for the enjoyment of privileges and immunities,
members of diplomatic missions owe certain duties towards the receiving State.
These are:
(a) The duty to respect the laws and regulations of the receiving State (Article
41(1) );
(b) The duty not to interfere in the internal affairs of the receiving State (Article
41(1) );
16 United States Diplomatic and Consular Staff in Tehran, Judgment, IC! Reports 1980, p 3, paras 62-{58.
During the second period when the Court found that through its support of the hostage-takers, Iran
was directly responsible for their actions, it violated, inter alia, paras (1) and (3) of Article 22 VCDR,
(ibid, para 77).
17 In its Reply to the Foreign Affairs Committee, (above, n 9, para 39(e)) the UK government explained
that in most cases this was left to the police who tended to manage such situations by, for example, keeping
demonstrators on the opposite side of the road to the mission premises.
18 A violation of Article 24 was found in United States Diplomatic and Consular Staff in Tehran, Judgment,
ICJ Reports 1980, p 3. For the question of whether inviolability extends to documents which have been
removed from the mission and are subsequently used in legal proceedings see Shearson Lehman Brothers Inc v
Maclaine Watson and Co, International Tin Council Intervening [1988) 1 WLR 16 and Mann, 1990,
pp 328-329. See also the Canadian case of Rose v The King (1947) 3 DLR 710 in which documentary evidence
of espionage against accused persons in criminal proceedings was held to be admissible notwithstanding that
it had been stolen from the Russian Embassy and inviolability had not been waived.
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 395
(c) All official business of the communication by the mission with the receiving
State should be through the Ministry of Foreign Affairs of the receiving State,
or with such other ministries as may be agreed (Article 41 (2));
(d) The premises of the mission must be not be used in any manner incompatible
with the functions of the mission (Article 41(3));
(e) A diplomatic agent must not carry out any professional or commercial activity
for personal profit in the receiving State (Article 42).
Finally in Articles 43-46 the Convention deals with arrangements on the termination
of diplomatic functions and on severance of diplomatic relations.
B. JURISDICTIONAL IMMUNITIES
The VCDR recognizes various categories of staff members of the diplomatic missions,
each enjoying immunity from jurisdiction to a different extent:
(a) diplomatic agents (ie the Head of the Mission and other members of the
diplomatic staff) and their families (provided that they are not nationals of
the receiving State (Article 37(1)) enjoy immunities ratione personae, ie by
vi~tue of their office. Thus they are granted personal inviolability,
including freedom from arrest and detention (Article 29),19 and absolute
immunity from criminal jurisdiction (Article 31). A diplomatic agent is also
immune from civil and administrative jurisdiction,20 except in three types of
case:
(i) a real action relating to immoveable property situated in the territory
of the receiving State, unless he holds it on behalf of the sending State for
the purposes of the mission;21
(ii) an action relating to succession in which the diplomatic agent is involved
as executor, administrator, heir, or legatee as a private person and not on
behalf of the sending State;
(iii) an action relating to any professional or commercial activity exercised by
the diplomatic agent in the receiving State outside his official functions.
19 A further aspect of inviolability is the duty to protect diplomatic agents, on which see also the Conven-
tion on the Prevention and Punishment of Crimes against Internationally Protected Persons-see note 3,
above. For clear breaches of both limbs of Article 29 see United States Diplomatic and Consular Staff in Terhan,
Judgment, ICJ Repol-ts 1980, p 3, paras 62-{53 and 77. Self-defence or an overriding duty to protect human life
appears to provide a limited exception. See ibid, para 86 and Denza, 1998, pp 219-220.
20 This includes civil proceedings concerning private matters. See, eg the Australian case of De Andrade v
De Andrade (1984), 118 ILR 299, in which the immunity of a diplomat was upheld in relation to divorce and
custody proceedings.
21 See Denza, 1998, at pp 237-245. For the difficult issue of whether the private residence of a diplomat is
included within the exception, see Intpro Properties v Sauvel [1983) 2 WLR 908. The private residence of a
diplomat is, however, inviolable by virtue of Article 30.
 CHANAKA WICKREMASINGHE
(b) Administrative and technical staff and their families, who are not nationals or
permanent residents of the receiving State, enjoy similar personal inviolability
and immunity from criminal jurisdiction to diplomatic agents. However they
only enjoy immunity from civil jurisdiction in relation to acts performed in the
course of their duties (Article 37(2)).
(c) Service staff, who are not nationals or permanent residents of the receiving
State, enjoy immunity ratione materiae, in respect of acts performed in the
course of their duties (Article 37(3)).
(d) Diplomatic agents representing the sending State but who are in fact nationals
or permanent residents of the receiving State, also enjoy immunity ratione
materiae in respect of their official acts (Article 38(1)).
(e) All members of diplomatic missions who enjoy immunities whilst in office
enjoy a subsisting immunity rati~ne materiae in respect of their official acts
even after they have left office (Article 39(2) ).22
It might be noted that generally immunities under the VCDR operate only in respect
of the jurisdiction of the receiving State. However the provisions of Article 40 can be
distinguished in that third States must accord diploIilatic agents (and their family
members) inviolability and such immunities as may be required to ensure their transit
or return whilst en route to and from post. 23
C. REMEDIES IN CASES OF ABUSE
Whilst the immunities set out above do impose a considerable derogation from
the jurisdiction of receiving States, the VCDR seeks to redress the balance, at least
partially, by providing for certain remedies in cases of abuse. Jurisdictional immun-
ities operate purely at the procedural level, by barring the adjudicative powers of the
local courts in respect of the holder, but they do not in themselves amount to substan-
tive exemptions from the law itself. Indeed as we have seen members of diplomatic
missions are under a duty to respect the law of the receiving State. Therefore where
such immunity is waived, the local courts may enjoy jurisdiction within the usual
bounds set by international law. Article 32 of the VCDR deals with the question of
waiver setting out: (a) that waiver is a prerogative of the sending State (not the
diplomatic agent in question) (Article 32(1)); (b) that waiver must always be express
(Article 33(2) ); and (c) that waiver from jurisdiction in respect of civil or administra-
tive proceedings does not, in itself, imply waiver from execution of the judgment
(Article 33(4) ).24
22 See the German Constitutional Court case of the Former Syrian Ambassador to the GDR (1997), 115 ILR
596, see also the Pinochet case discussed infra. For further explanation see Dinstein, 1966.
23 See the Netherlands case Public Prosecutor v JBe (1984),94 ILR 339.
24 By way of an exception to Article 32(1) and (2), Article 32(3) provides that a waiver will be implied
in respect of counterclaims which are directly related to the principal claim in proceedings commenced by
the holder of the immunity.
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 397
However waivers remain comparatively rare,25 and in the event that the sending
State refuses, the receiving State must rely on the broader remedy of withdrawing its
consent, either in respect of a particular member of the mission by declaring him or
her persona non grata or, in a particularly egregious case, by breaking off diplomatic
relations.
III. CONSULAR RELATIONS
The role of consuls is to represent the sending State, and to promote and/or protect
its interests in the receiving State, but with the emphasis of that role on technical
and administrative matters rather than political matters (in which diplomatic staff
specialize). In many respects consuls deal with private interests, such as assistance to
nationals of the sending State in the receiving State, rather than the public interests of
the sending State. Nevertheless, generalizations about consular relations must be
treated cautiously since the range of consular functions, as set out in VCCR, Article 5,
is very broad. It can include:
(a) protecting in the receiving State the interests of the sending State and its
nationals;26 .,
(b) assisting nationals of the sending State in need of help in the receiving State;
(c) obtaining appropriate legal assistance for nationals of the sending State before
tribunals and other authorities of the receiving State;
(d) assistance to vessels and aircraft of the sending State and their crews, as well as
exercising rights of supervision and inspection thereof;
(e) promoting trade between the two States;
(f) issuing passports and/or visas and other notarial functions;
(g) promoting cultural exchange.
Though international law on consular relations has very ancient roots, the modern
law first developed in a vast web of bilateral consular treaties in the nineteenth and
twentieth centuries. Yet so varied were these treaty provisions, that it was believed
that (unlike the law of diplomatic relations prior to 1961) customary international
law played only a very limited role in the establishment and maintenance of consular
relations. However, following work by the ILC in the late 1950s and early 1960s,
the 1963 Vienna Convention on Consular Relations (VCCR) sought to consolidate
and codify a basic body of rules. Whilst the VCCR does establish a widely accepted
25 Though note the recent waiver by Colombia to enable the questioning by police of an Embassy official
and one of his family members in connection with a murder inquiry-FCO Press Release, 26 September 2002.
26 On the VCCR system of consular protection of nationals of the sending State, see LaGrand (Germany v
USA), Judgment, IeJ Report, 2001, not yet reported, para 74.
 CHANAKA WICKREMASINGHE
benchmark for consular relations 27 it expressly states that it shall not affect existing
agreements between States, or prevent States from varying its provisions in their
future agreements (Article 73).28
The scheme of the VCCR is not unlike the VCDR, dealing with: the establishment
of and conduct of consular relations (Articles 2-24); the end of consular functions
(Articles 25-27); facilities, privileges, and immunities relating to a consular post
(Articles 28-39); facilities, privileges, and immunities relating to consular officers
and other members of a consular post (Articles 40-57); the regime relating to
honorary consuls (Articles 58-68); and general provisions (Articles 69-73).
The differencesm the functions of consuls as compared to diplomats explain the
differences in the extent of immunities from jurisdiction that are generally granted
to consuls. 29 Consular officers enjoy a more limited personal inviolability-they may
not be arrested or detained pending trial, except in the case of a grave crime30 and
pursuant to a decision by the competent judicial authority (Article 41). In relation
to immunity from jurisdiction, consular officers enjoy only immunity ratione
materiae, ie in respect of acts performed in the exercise of their consular functions
(Article 43).31
IV. HEADS OF STATE, HEADS OF GOVERNMENT,
AND MINISTERS FOR FOREIGN AFFAIRS
A. HEADS OF STATE
In previous eras when most States were governed by personal sovereigns such as
monarchs or emperors, there was a close identity in international law between such
persons and their States. However modern international law tends to consider the
rights and competences of Heads of State as attaching to them in their capacity as the
27 In United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, para 62 the
ICJ found the protection of consular staff and property was rule of customary international law.
28 Similarly under the UK implementing legislation, the Consular Relations Act 1968, the relevant
provisions of the VCCR are implemented by and scheduled to the Act, but by virtue of section 3 any
international agreement of the UK, under which consular privileges and immunities differ from the VCCR
standard, may be given effect by Order in Council.
29 Though in its practice with certain States, the UK has been willing to agree that the diplomatic standard
of privileges and immunities should be extended to consular officers-see, for example, Consular Relations
(Privileges and Immunities) (People's Republic of Bulgaria) Order 1970 (SI 197011923); Consular
Relations (Privileges and Immunities) (People's Republic of China) Order 1984 (SI 1984/1978);
Consular Relations (Privileges and Immunities) (Polish People's Republic) Order 1978 (SI 1978/1028); and
Consular Relations (Privileges and Immunities) (USSR) Order 1970 (SI 1970/1938).
30 The term 'grave crime' is not defined under the VCCR However the UK Consular Relations Act 1968
defines it as any crime punishable by up to a term of five years' imprisonment (s. 1(2) ).
31 Determining what constitutes an 'official act' for these purposes can raise difficult questions of
characterization. See Lee, 1991, pp 492-504.
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 399
highest representatives of their States, rather than inherently in their own right
(Watts, 1994, pp 35-37). That said, international law recognizes that the Head of State
may exercise a number of important powers in international relations ex officio,
including the sending and receiving of diplomats and consuls, and the conclusion of
treaties. 32
The immunity from jurisdiction of Heads of State when travelling abroad remains
largely uncodified at the international level, but it has undergone some important
changes in modern times. At the time that international law closely identified a
Head of State with his State, the absolute doctrine of 'sovereign immunity' prevailed.
However more recent times, in which the restrictive doctrine of immunity in relation
to States has developed, have also witnessed the development of more distinct rules
in relation to Heads of State (Watts, 1994, pp 52-66).33 Evidence of these principles in
customary international law can be found in the practice of national courts as well as
in relevant national legislative provisions.
In the UK, section 20 of the State Immunity Act 1978 essentially equates the
position of a visiting Head of State with the head of a diplomatic mission. Thus a
foreign Head of State (whether on an official or a private visit) will enjoy complete
personal inviolability and absolute immunity from criminal jurisdiction ratione per-
sonae. Immunity from civil jurisdiction is more complex in that it involves determin-
ing whether the act in question was performed by the Head of State in his official
capacity as an organ of the State, or whether it was performed in his personal
capacity. In relation to the acts of a Head of State performed in his public capacity,
the provisions in Part 1 of the Act (relating to the immunity of State itself, and
considered in the previous chapter) will be applicable:-E?r all other acts Heads of
State will enjoy immunity from civil jurisdiction subject to the three exceptions'
noted in respect of Article 31(1) VCDR. 34 Finally it is should be noted that the
immunities of a Head of State can be waived, either by the Head of State himself, or
bx: his State.
On the other hand when a Head of State leaves office, the House of Lords has found
that he will enjoy immunities on the same basis as a former diplomat, and in par-
ticular subsisting immunity ratione materiae for his official acts (as per Article 39(2)
VCDR). The ~xtent of this immunity was of course the subject of detailed scrutiny in
the Pinochetcase (examined below).
32 See, eg, 1969 VCLT, Article 7 and Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v Nigeria: Equitorial Guinea Interveneing), ICJ Reports 2002, not yet reported, 10, paras 263-268.
33 For a US perspective on this development see Tachiona and others v Mugabe and others (2001) 169
ESupp. 2d 259.
34 See, eg, Laddie J in BCCI v Price Waterhouse [1997J 4 All ER 108, in which certain acts of Sheikh Zayed
of Abu Dhabi were immune from suit under s. 20 as he was Head of State of the UAE, notwithstanding that
the acts·in question were not performed in that capacity. This was so even though Shiekh Zayed was
simultaneously head of one of the constituent units of the UAE, and his acts may have been performed in a
public capacity in that respect.
400 CHANAKA WICKREMASINGHE
B. HEADS OF GOVERNMENT AND MINISTERS FOR
FOREIGN AFFAIRS
It now seems that serving Heads of Government and serving Ministers for Foreign
Affairs enjoy immunity from jurisdiction ratione personae under international law to a
similar extent as Heads of State, since they perform comparable functions in repre-
senting their States in international relations. The position in relation to the personal
inviolability and immunity from criminal jurisdiction of serving Foreign Ministers
has recently been clarifi~d by the International Cour~ of Justice in the Arrest Warrant
case. 35
The case concerned the issue by a Belgian magistrate of an international warrant
for the arrest of the incumbent Congolese Foreign Minister for his alleged involve-
ment in grave breaches of the Geneva Conventions and the Additional Protocols
thereto, and crimes against humanity. The relevant Belgian statutes provided for
universal jurisdiction in the Belgian courts over these crimes (ie wherever and by
whomsoever they were committed) and provided that 'the immunity attaching to the
official capacity of a person shall not prevent the application of the present law'. 36
The ICJ upheld Congo's complaint that the issue of the arrest warrant was a
violation of the immunity from criminal jurisdiction and the personal inviolability
which an incumbent foreign Minister enjoys under international law. The Court
based this conclusion on the functions exercised by a Foreign Minister in inter-
national relations. The Court noted that he is in charge of his Government's
diplomatic activities, and represents it in international negotiations and meetings, as
well as his powers under international law to act on behalf of and to bind the State in
for example treaty relations, simply by virtue of his office. Such functions required
that a Foreign Minister should be able to travel internationally freely and to be able
to be in constant communication with his Government and its diplomatic missions
around the world. Such considerations led the Court to consider that Foreign
Ministers enjoy complete personal inviolability and absolute immunity from criminal
jurisdiction ratione personae, throughout the duration of their office. In that respect
it is irrelevant that the acts in question were private or official, or that they were
performed prior or subsequently to a Foreign Minister assuming office, or indeed
whether that Foreign Minister was in the forum State on a private or an official visit.
Three further points should be noted about the extent of the immunity from
jurisdiction of an incumbent Foreign Minster under the judgment. 37 First, it might
be noted that Foreign Ministers may rely upon their immunities in any State, whereas
for example diplomatic immunity is largely limited to immunity from the courts of
35 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and
Merits, Judgment, ICJ Reports 2002, p 3. For comments see Cassese, 2002; Wirth, 2002; Spinedi, 2002; Sir
Robert Jennings, 2002; Stern, 2002; Schreuer and Wittich, 2002; Mclachlan, 2002.
36 Act concerning the Punishment of Grave Breaches of International Humanitarian Law of 10 February
1999, (1999) 38 1LM 92l.
37 The Court's comments, strictly speaking obiter dictum, on the extent of the subsisting immunity ratione
materiae of a Foreign Minister after he has left office are considered below in Section VII.
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 401
the receiving State. Secondly, attention might be drawn to the fact that the Court
found specifically that there was no exception to the immunity of a serving Foreign
Minister from the criminal jurisdiction of national courts in respect of war crimes or
crimes against humanity. Thirdly, the immunity of a Foreign Minister can be waived
by his own State.
Though the Court's findings are strictly confined to the immunities enjoyed by
Foreign Ministers, it seems clear that similar immunities apply, perhaps a fortiori, to
Heads of Government. 38 However whether they can be extended further to other
Ministers or officials remains to be seen. An extension of the categories of persons
covered could be imagined, through analogous reasoning, based on the role in inter-
national relations played by, for example, a Defence Minister or Permanent Under
Secretary in the Ministry of Foreign Affairs. Nevertheless it is not yet clear where the
lines should properly be drawn, and the task is made more difficult by the different
ways in which different governments organize themselves internally. In any event it
may be that other ministers or officials enjoy immunities when on official visits as
members of special missions (see next section).
v. SPECIAL MISSIONS
In addition to the communication between governments that is enabled through
the establishment of permanent diplomatic missions, an important means of carrying
out particular items of inter-governmental business is through the dispatch of
special missions (sometimes called ad hoc diplomacy). Such missions can vary con-
siderably- ranging from missions involving the Head of State in person on matters of
great political moment, to missions consisting of relatively junior officials concerned
with a purely technical matter between the sending and receiving State.
Similarly the legal status of such missions has been treated somewhat unevenly.
There are relatively few decisions from national courts on the point but there are
nevertheless some indications that, at least, some special missions might enjoy
immunities as a matter of customary international law. Thus for example in the 1983
Tabatabai case39 the German Federal Supreme Court found that there was a rule of
customary international law that an ad hoc envoy charged with a special political
mission by the sending State could be granted immunity with the agreement of
the sending State. The court found that given the importance of ad hoc diplomacy,
there were functional grounds for granting immunity ratione personae to members of
special missions. Similarly some US courts have found there to be a category of special
diplomatic envoy who benefits from jurisdictional immunities. 40 However in a recent
38 See, eg the US case of Saltanyv Reagan and others (1988),80 1LR 19, affirmed (1989),87 ILR 680.
39 80 ILR 388.
40 See, eg Kilroy v Windsor, Prince of Wales (1978), 81 1LR 605 and HRH Prince Turki Bin Abdulaziz v
Metropolitan Dade County (1984), 99 1LR 113.
402 CHANAKA WICKREMASINGHE
case a US District Court rejected a plea of immunity from criminal jurisdiction by
a visiting government official claiming to be on a special mission and found that
the Special Missions Convention does not represent customary international lawY
The UK courts have not had occasion to address the point in terms, and such obiter
dicta as there are remain inconclusive.42
On other hand the 1969 UN Convention on Special Missions sets out in some
detail norms for the conduct of ad hoc diplomacy and the privileges and immunities
which attach to special missions. The Convention has not been widely taken Up43 and
there is some dispute as to whether its provisions reflect customary international law.
Sir Arthur Watts has suggested that the main reason for the limited success of the
Convention is its inflexibility, in that it seeks to apply a single standard of treatment to
all kinds of mission, as well as the practical difficulties arising from the temporary
nature of such missions (see Watts, 1999, pp 344-345).
The Convention broadly follows the familiar scheme of the VCDR and VCCR. It
sets out firmly the principle· of mutual consent as underlying ad hoc diplomacy
(Articles 2 and 3), and then deals with questions of the procedural questions for
the sending and conduct of special missions (Articles 2-19). It sets out the facilities,
privileges, and immunities of missions (Articles 22-28) and of their staff (Articles
29-48).
Substantive aspects of the Convention also resemble the VCDR, hence for the pur-
poses of jurisdictional immunities the staff are divided into broadly similar categories
enjoying immunities to a similar extent. 44 Members of special missions are under an
obligation to respect local law (Article 47). Also in cases of abuse the remedies of
the receiving States are similar to those under the VCDR, including seeking waiver
(Article 41), declaration of persona non grata (Article 12) or bringing the mission to
an end (Article 20(I)(e)). Finally it might be noted that the Convention provides that
such additional privileges and immunities as may be required under international law
may be accorded where the mission includes the Head of the sending State, the Head
41 USA v Sissoko (US District Court, Florida Southern District, 1997), 121 ILR 599.
42 See eg Fenton Textiles Association v Krassin eta!' (1921) 6 BILC 247; Rv Governor ofPen ton ville Prison, ex
parte Teja [1971] 2 QB 274; and R v Governor ofPen ton ville Prison, ex parte Osman (No 2) (1988), 88 ILR 378.
See also the contrasting dicta of Lord Millett and Lord Phillips in R v Bow Street Metropolitan Stipendiary, ex
parte Pinochet Ugarte (Amnesty International Intervening) (No 3) (hereafter Pinochet No 3) [1999] 2 WLR 827,
at 905E and 918E respectively.
43 There are currently thirty-two parties. The UK signed the Convention on 17 December 1970, but has
not ratified it.
44 Under Articles 29 and 31 'representatives of the sending State in the special mission and members of its
diplomatic staff' enjoy personal inviolability and jurisdictional immunities equivalent to those of diplomatic
agents under the VCDR (save that in respect of immunity from civil jurisdiction a further exception is made
in relation to road traffic accidents outside the official functions of the person concerned). Family members,
administrative and technical staff, service staff, and members of the mission who are nationals of the receiving
State, all enjoy equivalent immunities to those under the VCDR (see Articles 39,36,37, and 40 respectively).
Temporally immunities are limited to the duration of the mission, save that immunity ratione materiae in
relation to official acts continues to subsist even after the mission has come to an end (Article 44(2)).
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 403
of its Government, its Minister for Foreign Affairs, or other persons of high rank
(Article 21).45
VI. THE IMMUNITIES OF OTHER STATE OFFICIALS
The above appear to be the regimes of immunities which international law requires
should be granted in respect of particular categories of State official. However it
appears that under the doctrine of State immunity, other· State officials (and arguably
former State officials) enjoy immunity ratione materiae for their official acts from
the jurisdiction of the courts of other States, where the effect of proceedings would be
to undermine or render nugatory the immunity of the employer State. 46 In other
words it prevents an applicant from seeking to circumvent the impediment of State
immunity by adopting the tactic of suing the individual carrying out the business of
State.
In the UK this proposition finds support in both the common law47 and in some
recent cases under the State Immunity Act 1978. Thus in the 1996 case of Propend
Finance v Sing the Commissioner of the Australian Federal Police (AFP) was per-
mitted to claim State immunity, in connection with contempt proceedings for an
alleged breach of an undertaking committed by an AFP officer accredited as a
diplomatic agent to the Australian High Commission in London. The Court of
Appeal held:
The protection afforded by the Act of 1978 [ie the State Immunity Act 1978] to States would
be undermined if employees, officers or (as one authority puts it) 'functionaries' could be
sued as individuals for matters of State conduct in respect of which the State they were
serving had immunity. Section 14(1) must be read as affording individual employees or
officers of a foreign State protection under the same cloak as protects the State itself.48
Similar findings by the courts of other States might also be cited. 49 Nevertheless there
do not appear to be cases where a State official has been able to resist criminal
jurisdiction by the invocation of State immunity per se. However to the extent that the
immunities ratione materiae of a former Head of State are a manifestation of this
more general immunity, it might be noted that in Pinochet No 3 it was suggested that
45 However it is not clear what additional privileges and immunities this might entail. See Satow's
Diplomatic Practice, 5th edn, 1979, p 159.
46 See Lord Browne-Wilkinson in Pinochet No 3 [1999] 2 WLR 827 at 847F.
47 See, eg Twycross v Dreyfus (I877) 5 Ch D 605; Rahimtoola v Nizam of Hyderabad [1958] AC 379;
also Zoernsch v Waldock [1964] 2 QB 352. See Whomersley, 1992.
48 III ILR 611 at 669. For criticism see Barker, 1998.
49 See the US cases of Chuidianv Philippine National Bank (1990),92 ILR 480 and Herbage v Meese (1990)
98 ILR 101. Also the Canadian cases ofJaffev Miller (1993),95 ILR 446 and Walkerv Baird (1994) 16 OR (3d)
504. Other cases from the UK include Re P (No 2) (1998), 114 ILR 485, and under the common law of State
immunity Holland v Lampen-Wolfe [2000] 1 WLR 1548.
 CHANAKA WICKREMASINGHE
such immunity could be opposed to proceedings in respect of most crimes (with the
important exception of certain serious international crimes, such as torture) where
these are committed in the performance of the functions of government. 50
VII. OFFICIALS OF INTERNATIONAL
ORGANIZATIONS
Whilst the immunities of international organizations have been inspired by the
immunities granted to State officials, they differ in some respects, reflecting the
important differences between international organizations and States. In the normal
course of events an international organization will not have its own territory, but
rather be based on territory over which a State exercises jurisdiction (special cases of
international administration as, for example, the UN administration of Kosovo
or in East Timor are not considered here). An international organization will not
have. its own population, from which its officials are chosen, but instead will employ
persons who hold the nationality (with its attendant rights and obligations) of a State.
Finally an international organization will not generally perform all the functions
of government, with a full legal system of its own. Rather it will have its own
institutional law, but will have to rely upon the local law in respect of other matters
such as, for example, the maintenance of public order through the exercise of criminal
jurisdiction.
Both diplomatic immunities and the immunities of international organizations
arise from considerations of functional necessity, and as we shall see the former have
inspired the latter in some respects. However it does not follow that they should
be identical in extent. Jenks suggests that there are three major differences between
diplomatic immunities and those of international officials (Jenks, 1962, p xxxvii).
First, it is unusual for a diplomatic agent to have the nationality of the receiving State
and as we have seen the immunities he enjoys can be restricted by the receiving State,
only to his official activities. On the other hand for officials of international organiza-
tions it may be especially important that they enjoy immunities against their own
States of nationality. 51 Secondly, whereas a diplomatic agent may be immune from
50 Thus Lord Hope found that immunity ratione materiae of a former Head of State could be relied upon
in relation to charges of conspiracy to murder-see [1999] 2 WLR 827 at 881 and 887. See also the speeches of
Lords Browne-WIlkinson and Hutton, ibid at 848 and 888 respectively. On the other hand Lord Millett
e.xpressly found that immunity ratione materiae is not available in respect of an offence committed in the
forum State (ibid, at 913).
51 Not all States accept that their own nationals when employed by international organizations e.njoy the
full range of immunities enjoyed by the officials who hold other nationalities. However such limitatio;{s'often
concern fiscal immunities or exemptions from national service rather than immunity from legal process. For
examples of the general rule see the ICJ Advisory Opinions in the Mazilu Advisory Opinion (1989 IC! Reports
1989, p 177) and the Advisory Opinion concerning Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights, IC! Reports 1999, p 62.
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 405
legal process in the sending State, he will remain subject to legal process in their
sending State. In relation to officials of international organizations there is no sending
State as such, and thus appropriate procedures may have to be adopted, either
through some international disciplinary procedure established by the organization,
or through waiver of immunity. Thirdly, the principle of reciprocity, which plays
such an important role in the maintenance of diplomatic law between States, cannot
operate in the same way in respect of international organizations. Thus Jenks rejects a
simple assimilation of the immunities of international organizations with diplomatic
immunities, in favour of looking at the former on their own merits as based upon
their particular functional needs.
It is of course impossible to survey the range of international organizations, and
the immunities of each will be governed by their own treaty provisions. 52 Only the
immunities of personnel of the United Nations are considered here, as illustrative
rather than generally applicable (see further, Michaels, 1971). In broad terms the
Convention on the Privileges and Immunities of the United Nations 1946 divides staff
members of the UN into three categories:
(a) the Secretary-General and the Assistant Secretaries-General shall be accorded
ambassadorial status, and enjoy equivalent immunities ratione personae
(Article V, section 19);
(b) all other officials of the Organization enjoy immunity from legal process in
respect of their official acts, ie immunity ratione materiae (Article V, section
18(a)); and
(c) experts on mission (ie persons who undertake temporary missions for the UN)
who enjoy immunity from suit for their official acts (ratione materiae), as well
as-in view of their need to travel freely in performance of their mission-a
specific grant of personal inviolability (Article VI, section 22).
The Convention makes clear that the immunities of officials and experts are granted
not for their personal benefit, but for the benefit of the Organization. The Secretary-
General thus has the right and the duty to waive immunity of any official where the
immunity would in his opinion impede the course of justice and can be waived
without prejudice to interests of the Organization (Article V, section 20).
However given that most officials and experts of the UN only enjoy immunity
ratione materiae in respect of their official acts, an interesting question arises as to
who should determine whether any particular act is 'official' or not. In many of the
cases which might concern the exercise of ordinary criminal jurisdiction it will be
possible to say that the offence is not an official act, and so the question of immunity
does not arise. Thus for example during the Cold War there were a number of cases in
52 Though in relation to the immunities from jurisdiction of officials there is consider~ble uniformity i?
the relevant treaty provisions. In relation to international organizations of which the UK IS a member, theIr
immunities may be given effect by Order in Council made under the International Organizations Act 1968.
406 CHANAKA WICKREMASINGHE
which international officials were accused of espionage in the US, they were unable to
claim immunity as the activities in question were not official activities. 53 However in
other cases, where there may be some dispute as to the nature of an act, it is necessary
to ask whether that issue should be determined by the Secretary-General on behalf
of the Organization, or the relevant national court as part of its task in applying
the immunity. In the Cumaraswamy case, the ICJ gave a rather nuanced answer to the
question, stating that:
When national courts are seised of a case in which the immunity of a United Nations agent
is in issue, they should immediately be notified of any finding by the Secretary General
concerning that immunity. That finding and its documentary expression creates a presump-
tion which can only be set aside for the most compelling reasons and is thus to be given the
greatest weight by the national courtS.54
The Court thus sought to balance interests of the organization and the local juris-
diction, though, in the final analysis, it is the local court which must decide whether
there are compelling reasons to rebut the presumption established by the Secretary-
General's finding. . in respect of procedural obligations of States. 55 Nevertheless the law is undergoing a
VIII. THE SCOPE OF IMMUNITIES-IMMUNITY
AND IMPUNITY DISTINGUISHED
None of the immunities which have been considered are for the benefit of any par-
ticular individual or group of individuals, but rather are for the benefit of the State/
international organization which they represent. Thus the sending State/employer
international organization can waive any of these immunities, thereby consenting
to the jurisdiction of the courts of the receiving State over the official in question.
This applies whether the immunity in question is granted ratione personae or ratione
materiae.
However in a parallel development, the scope of international law has now
broadened from an almost exclusive concern with the rights and duties of States,
so that it now also imposes a considerable body of obligations in respect of indi-
viduals. Of particular interest for present purposes is the evolution of individual
criminal responsibility under international law for a number of serious inter-
national crimes which offend international public order. As Sir Arthur Watts (1994,
P 82) points out:
53 See, eg US v Coplon, 84 ESupp 472 (1949); US v Melekh, 190 ESupp 67 (1960); and US v Egorov, 222
ESupp 106 (1963). In another context see also the case of Westchester County v Ranollo (1946),13 ILR 168.
54 Advisory Opinion concerning Difference Relating to Immunity from Legal Process of a Special Rapporteur
of the Commission on Human Rights, IC] Reports 1999, p 62, para 61. For comment see Wickremasinghe,
2000.
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 407
For international conduct which is so serious as to be tainted with criminality to be regarded
as attributable only to the impersonal state and not to the individuals who order or
perpetrated it is both unrealistic and offensive to common notions of justice.
Furthermore recent years have seen a determination within international society
to put an end to the impunity of the perpetrators of such crimes, through the
development of extraterritorial jurisdiction and the establishment of inter-
national criminal tribunals. In a further development, and in line with the general
trend to seek to rationalize all regimes of immunity (which is observable in
other areas of international and national law), the immunities of State officials
in respect of international crimes have been subject to particularly keen scrutiny
in recent years.
Exactly how these apparently conflicting priorities in the law should be integrated is
still being worked out. Simple attempts at seeking to choose between them on the
basis of hierarchy by means of the jus cogens or erga omnes nature of the primary
prohibitions of the criminalized conduct appear not to provide answers, particularly
period of considerable and quite rapid change at present, which is attested to by the
many recent developments noted below. What follows therefore does not attempt to
prescribe what the law ought to be, but simply seeks to describe the law as it is in its
current stage of development.
At the international level, it appears that immunities are not available to defendants
before international criminal tribunals such as the International Criminal Tribunal
for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda
(ICTR), and the International Criminal Court (ICC).56 However turning to the
effect of this at the national level, it might be noted that these tribunals require the
assistance of national authorities, for example arresting and transferring suspects or
providing evidence. In such cases the question of whether immunities are available
to defendants in respect of such proceedings will depend on how the tribunal in
question was established. The Statutes of the ICTY and the ICTR were adopted by a
resolution of the Security Council using its mandatory powers under Chapter VII of
the Charter. Thus the restriction on the immunity of defendants is an obligation on all
member States of the UN which has overriding effect by virtue of Article 103 of the
Charter. By contrast the Statute of the ICC is a treaty, to which States must consent
before they are bound by it. Accordingly whilst on the one hand the Statute limits
the immunities available to defendants in proceedings before the ICC itself, it also
preserves the State and diplomatic immunities of officials and property of third States
55 See, eg the ECtHR case of Al-Adsani v UK, Judgment of 21 November 2001, 34 EHRR 11, which dealt
with the question of the immunity of the State itself from civil jurisdiction. See also Article 98(1) of the
Statute of the International Criminal Court at note 57 below.
56 See Article 7(2) of the Statute of the ICTY and Article 6(2) of the ICTR, and Article 27 of the Statute of
the International Criminal Court. See also Article 7 of the Charter of the International Criminal Tribunal
of Nuremberg and Article 6 of the Charter of the Tokyo Tribunal.
408 CHANAKA WICKREMASINGHE
in respect of requests to States for surrender or assistance to the Court. 57 In other
words, officials of States which are not parties to the Statute may be able to claim
immunity in respect of their arrest and transfer to the Court, whereas the States
parties to the Statute have in effect waived such immunities in respect of their own
officials. Thus the International Court of Justice has found that the exceptions to
immunities in respect of these international tribunals, do not permit the conclusion
that the same exceptions to immunity exist in customary international law in regard
to proceedings in national courts. 58
In the Arrest Warrant case the ICJ was concerned with the immunity ratione
personae of a serving Foreign Minister, and concluded that under customary
international law no exception to that immunity exists in respect of war crimes or
crimes against humanity. The Court based this upon its review of national
legislation59 and those few decisions of higher courts in national legal systems
on the point. 60 One of these was the decision of the French Cour de Cassation
in the Qadaffi case (Zeppala, 2001), in which the immunity of a serving Head
of State was found to operate in respect of allegations of his involvement in inter-
national terrorism. The other major case referred to is the decision of the House
of Lords in the Pinochet case, in which in a number of dicta their Lordships
suggested that the immunity ratione personae of serving Heads of States and serving
Ambassadors (unless waived) could be relied upon in proceedings for international
crimes. 61
Thus it seems arguable as a general principle that immunities ratione personae of
incumbent State officials, including Heads of State, Heads of Government, Foreign
Ministers, diplomatic agents, and perhaps also members of special missions, are, in
the absence of waiver by the sending State, an absolute bar to the criminal jurisdiction
of the national courts for the duration of their office/mission,62 even in relation to
S7 Thus Article 98( 1) states:
The Court may not proceed with a request for surrender or assistance which would require the requested State to act
inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a
person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver .
of the immunity.
58 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and
Merits, Judgment, ICJ Reports 2002, p 3, para 58.
S9 In this respect the Belgian Act of 10 February 1999 under which immunities are not admissible in
respect of war crimes, crimes against humanity, and genocide, appears exceptional and so cannot be relied
upon as sufficient evidence in itself of an emerging rule of general international law.
60 The US case of Tachiona and others v Mugabe and others (21 October 2001, 169 F.Supp.2d 259) might
also be cited in this respect, though it was not mentioned by the Court. In this case a US District Court
reluctantly upheld Head of State immunity in civil proceedings arising out of allegations of serious human
rights violations.
61 See the speeches of Lord Browne-Wilkinson at 844E-G; Lord Hope at 886G-H; Lord Saville at 903F-G;
Lord Millett F-H; and Lord Phillips at 924C-D
62 Heads of State, Heads of Government and Foreign Ministers appear to enjoy immunities in respect
of all foreign States (ie erga omnes), whereas the immunities under the VCDR and the Special Missions
Convention are primarily enjoyed only in the receiving State (though they also provide for privileges and
immunities whilst in transit).
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 409
these serious international crimes. The reason for this is that the functions which
these officials serve in maintaining international relations are such that they should
not be endangered by the subjection of such officials (whilst they are in office) to the
criminal jurisdiction of another State.
However as a corollary of such reasoning the House of Lords in the Pinochet No 3
case was able to find that a different rule might apply under certain conditions in
respect of immunity ratione materiae of a former Head of State. As is well-known the
case concerned a request by Spain for the extradition of the former President of Chile,
General Pinochet (who was temporarily in London undergoing medical treatment)
inter alia in respect of charges of widespread use of torture during his period of
government in Chile. The House of Lords had to consider whether Pinochet could
resist extradition by relying on the subsisting immunity ratione materiae, ie in respect
of official acts he performed as Head of State, notwithstanding that he was no longer
in office.
Trying to distil the ratio of the judgment pf the House of Lords is complicated not
only by the nature of the case, but also by the fact the reasoning in each of the
judgments of the six judges in the majority, differs. A full treatment is therefore
beyond the scope of this chapter. 63 The court was faced on the one hand with
allegations of the international crime of torture, which by definition requires official
involvement,64 and on the other with Pinochet's claim to immunity ratione mater;iae.
By a majority of six to one the House rejected the plea of immunity in respect of the
torture allegations.
Put briefly three of their Lordships relied upon an implied waiver of the immunity
ratione materiae, which it found States parties to the Torture Convention must
have intended. 6s If this were otherwise the international criminalization of torture
under the Convention would have been rendered largely purposeless, as anybody
charged with torture would (in the absence of waiver) be able to rely on official
act immunity.
However the judgments of the other three of their Lordships who made up the
majority appear to have been more broadly based. They suggest that individual
responsibility for serious crimes in international law cannot be opposed by reliance
upon immunity ratione materiae of former Heads of State. That form of immunity
only covers official acts in order to ensure that the immunities of the State itself
are not undermined by proceedings against its former Head. The purpose of the
63 The case is the subject of a considerable literature, including: Warbrick, Salgado, and Goodwin, 1999;
Fox, 1999; Barker, 1999; Denza, 1999; Dupuy, 1999; Dominice, 1999; Cosnard, 1999; Chinkin, 1999;
van Alebeek, 2000.
64 See Article 1(1) of the UN Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment of Punishment 1984, which defines torture as the international infliction of pain or suffering for
various purposes, 'when such pain of suffering is inflicted by or at the instigation of or with the consent or
acquiescence of public official or other person acting in an official capacity'.
6S See the speeches of Lord Browne-Wilkinson at 847; Lord Hope (who found the exception to immunity
ratione materiae applied only in respect of a systematic or widespread torture) at 882-887; and Lord Saville
at 904.
 410 CHANAKA WICKREMASINGHE
immunity is therefore to ensure that the national courts of one State do not adjudicate
on the responsibility of another State without the consent of the latter. However these
judges found that as such immunity is concerned with the responsibility of the State,
it cannot be invoked in respect of an individual's own criminal responsibility in
international law. 66
For now what can be said with certainty is that the Pinochet case is authority in
UK law for the proposition that there is an exception to immunity from criminal
jurisdiction ratione materiae enjoyed by former Heads of State in respect of acts of
official torture. It might also be noted that their Lordships found that since the
development of individual criminal responsibility in respect of torture represents
a distinct basis of responsibility to which official act immunity does not extend,
Pinochet's immunity ratione materiae from civil process was unaffected. Beyond this
it is difficult to draw further conclusions at this stage. Whether the exception to
immunity found in this case can be extended in respect of other international crimes
and/or in respect of other immunities ratione materiae enjoyed by officials or former
officials has been much debated, but :firm conclusions cannot be drawn.
Finally it might be noted that some of these issues were considered further by the
International Court of Justice in its Judgment in the Arrest Warrant case. Though
these comments are strictly speaking obiter since this case was concerned with the
immunities ratione personae of a serving Foreign Minister, the majority of the Court
found that a former Foreign Minister would be liable to prosecution in the courts
of another State for the acts he performed during his period of office in private
capacity.67 If this is taken as a broad statement of the principle that a former Foreign
Minister enjoys a subsisting immunity ratione materiae for his official acts, it may
be unsurprising. However this passage of the Judgment has been the subject of criti-
cism for the narrowness of its formulation (McLachlan., 2002) and some have even
dr~,:n from it the implication that the subsisting immunity of a former Foreign
Mmlster would be applicable in respect of serious international crimes such as war
~rimes and crimes against humanity (Wirth, 2002; Spinedi, 2002). If this latter point
IS what the Court intended then it might suggest that a narrow reading should be
given to the decision of the House of Lords in the Pinochet case. It should be noted
that, in their Joint Separate Opinion, Judges Higgins, Kooijmans, and Buergenthal
66. Lord r::utton accepted the fact that the allegations of torture concerned acts in the performance of
pu~1ic ~nctIon~, but found that 'certain crimes are so grave and so inhuman that they constitute crimes
agaInst lDte.rnatIOnal ~aw and that the international community is under a duty to bring to justice a person
~h~ commlts such cru~es'. He then held that individual criminal liability in respect of such crimes was quite
diStillct .from the questIOn of State responsibility which underlay immunities ratione materiae (at 887-902).
Lo~d Mill:tt foun~ the existence of immunity ratione materiae simply inconsistent with the development of
ser~o?-s c~~es of 1US cogens nature for which extraterritorial jurisdiction was available (at 909-914). Lord
PhillIPS s~ila:ly ~oun~ that ~e development of international crimes and extraterritorial jurisdiction could
not CO-exISt WIth lffiumty ratlOne materiae (at 924).
67. Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and
Ments, JUdgment, ICJ Reports 2002, p 3, para 61.
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS 411
suggest that the current trend of State practice is that serious international crimes are
not covered by the immunities ratione materiae of former State officials. 68
IX. CONCLUSIONS
Thus we have seen that in modern diplomatic law there has been considerable move-
ment towards the rationalization of immunities, so that it is now clear that they are
not granted for the personal benefit of their holders. Instead they are granted on a
functional basis, to facilitate the processes of communication and cooperation in
international relations. Carefully considered legal regimes have been created in which
the interests of sending and receiving States have been balanced. There is a general
acceptance that without these immunities their holders could be impeded from
effective performance of these important functions, the purpose of which serves the
international public interest.
At the same time greater consensus has developed and continues to develop on the
standards of governance of those exercising public power, and in particular recently
on the criminalization of the gravest excesses in this respect. The wholesale exemption
of those who commit such crimes for public purposes, would clearly be contradictory.
The establishment of the International Criminal Court, in relation to which immun-
ities are not available (except as provided for in Article 98 in respect of non-parties), is
clearly a hugely significant step for international law.
However the resolution of these conflicting priorities at the national level is still
being worked out, and an authoritative statement of the law is not possible at this
point. Nevertheless if the above survey is accepted, international law currently appears
to be moving towards compromise. The immunities ratione personae attaching to
certain offices will render their holders immune from national proceedings, but not
necessarily from international proceedings. On the other hand once they have left
office, such persons will enjoy a general immunity in respect of their official acts
ratione materiae, but exceptionally it appears that in respect of certain international
crimes they might not be so immune. Whether or not this compromise is sustainable
remains to be seen.
REFERENCES
BARKER, Je (1996), The Abuse of Diplomatic Immunity and Act of State: A Triple
Privileges and Immunities: A Necessary Protection Against Legal Action', 47 ICLQ
950.
Evil? (Aldershot: Dartmouth).
- - (1998), 'State Immunity, Diplomatic - - (1999), 'The Future of Former Head of
68 Ibid, Joint Separate Opinion, para 85.
 412 CHANAKA WICKREMASINGHE
State Immunity after ex parte Pinochet!, 48
ICLQ937.
BROWNLIE, I (1998), Principles of Public
International Law, 5th edn (Oxford:
Clarendon Press).
CASSESE, A (2002), 'When may Senior State
Officials be Tried for International
Crimes? Some Comments on the Congo v
Belgium case', 13 EJIL 853.
CHINKIN, C (1999), 'Ex Parte Pinochet
Ugarte (No.3), Casenote', 93 AJIL 703.
COSNARD, M (1999), 'Quelques observa-
tions sur les decisions de la Chambre des
Lords dans l'affaire Pinochet', 103 RGDIP
309.
CRAWFORD, J (2002), The International Law
Commission's Articles on State Responsibil-
ity (Cambridge: Cambridge University
Press).
DENZA, E (1998), Diplomatic Law, 2nd edn
(Oxford: Clarendon Press).
- - E (1999), 'Ex Parte Pinochet: Lacuna or
Leap?', 48 ICLQ 949.
DINSTEIN, Y (1966), 'Diplomatic Immunity
from Jurisdiction ratione materiae', 15
ICLQ76.
DOMINICE, C (1999), 'Quelques observa-
tions sur l'immunite de jurisdiction
penale de l'ancien Chef d'Etat', 103
RGDIP297.
Dupuy, P-M (1999), 'Crimes et immunites',
103 RGDIP 289.
Fox, H (1999), 'The Pinochet No 3 Case',
48 ICLQ687.
GORE-BOOTH, LORD (ed.) (1979), Satow's
Diplomatic Practice, 5th edn (London:
Longmans).
HIGGINS, R (1985), 'The Abuse of Dip-
lomatic Privileges and Immunities:
Recent United Kingdom Experience',
79 AJIL 641.
JAMES, A (1991), 'Diplomatic Relations and
Contacts', 62 BYIL 347.
JENKS, CW (1961), International Immuni-
ties (London: Stevens).
JENNINGS, SIR ROBERT (2002), 'Jurisdiction
and Immunity in the ICJ Decision in the
Yerodia case', 4 InternationalLaw Forum 99.
LEE, LT (1991), Consular Law and Practice,
2nd edn (Oxford: Clarendon Press).
McLACHLAN, C (2002), 'Pinochet Revisited',
51 ICLQ 959.
MANN, FA (1990), '''Inviolability'' and other
problems of the Vienna Convention on
Diplomatic Relations', in Mann, FA, Fur-
ther Studies in International Law (Oxford:
Clarendon Press).
MICHAELS, DB (1971), International Privil-
eges and Immunities: a Case for a Universal
Statute (The Hague: Martinus Nijhoff).
SCHREUER, C and WITTICH, S (2002),
'Immunity v Accountability: the ICJ's
Judgment in the Yerodia case', 4 Inter-
national Law Forum 117.
SPINEDI, M (2002), 'State Responsibility v
Individual Responsibility for Inter-
national Crimes: Tertium Non Datur',
13 EJIL 895.
STERN, B (2002), 'Les dits et non dits de
la Cour internationale de Justice dans
l'affaire RDC contre Belgique', 4 Inter-
national Law Forum 104.
VAN ALEBEEK, R (2000), 'The Pinochet case:
International Human Rights Law on
Trial', 71 BYIL 29.
W ARB RICK, CJ, SALGADO, EM, and GOOD-
WIN, N (1999), 'The Pinochet Cases in the
United Kingdom', 2 YIHL 1.
WATTS, SIR ARTHUR, (1994), 'The Legal Pos-
ition in International Law of Heads of
States, Heads of Governments and
Foreign Ministers', 247 Recueil des
Cours9.
WHOMERSLEY, C (1992), 'Some Reflections
on the Immunity of Individuals for
Official Acts', 41 ICLQ 848.
IMMUNITY OF STATE OFFICIALS AND INTERNATIONAL ORGANIZATIONS
WICKREMASINGHE, C (2000), 'The Advisory
Opinion on the Difference Relating to
Immunity from Legal Process of Special
Rapporteur of the Commission on
Human Rights', 49 ICLQ 724.
WIRTH, S (2002), 'Immunity for Core
Crimes? The ICJ's Judgment in the Congo
v Belgium case', 13 EJIL 877.
WOOD, M (1974), 'The Convention on the
Prevention and Punishment of Crimes
FURTHER READING
CONSULS
LEE, LT (1991), Consular Law and Practice,
2nd edn (Oxford: Clarendon Press)-
the standard guide to consular law.
DIPLOMATS
DENZA, E (1998), Diplomatic Law, 2nd
edn (Oxford: Clarendon Press) - the
definitive guide to the Vienna Convention
on Diplomatic Relations.
HEADS OF STATE, HEADS OF
GOVERNMENT, AND FOREIGN
MINISTERS
WATTS, SIR ARTHUR (1994), 'The Legal Pos-
ition in International Law of Heads of
State, Heads of Governments and Foreign
Ministers', 247 Recueil des Cours 9-a
comprehensive and very readable survey.
OFFICIALS OF INTERNATIONAL
ORGANIZATIONS
aCKLIN, R (1998), 'Diplomatic Relations:
413
against Internationally Protected Persons,
including Diplomatic Agents', 23 ICLQ
791.
YOUNG, E (1964), 'The Development of the
Law of Diplomatic Relations', 40 BYIL 141.
ZEPPALA, S (2001), 'Do Heads of State Enjoy
Immunity from Jurisdiction for Inter-
national Crimes? The Ghaddafi case
before the French Cour de Cassation', 12
EJIL595.
Status Privileges and Immunities' and
Scobbie, I (revising EI-Erian, A), 'Inter-
national Organisations and International
Relations', both in Dupuy, R-J (ed.),
A Handbook on International Organisa-
tions, 2nd edn (Dordrecht: Martinus
Nijhoff) at pp 293-313 and 831-367,
respectively.
PINOCHET
There is an abundance of literature on this
case, a starting point might be:
W ARBRICK, CJ, SALGADO EM, and GOOD-
WIN N (1999), 'The Pinochet cases in the
United Kingdom', 2 YIHL 1.
For some of the legal policy issues at stake
see:
BIANCHI, A (1999), 'Immunity versus
Human Rights: the PinochetCase', 10 EJIL
237.
DENZA, E (1999), 'Ex parte Pinochet. Lacuna
or Leap', 48 ICLQ 949.
 13
THE RELATIONSHIP
BETWEEN INTERNATIONAL
AND NATIONAL LAW
Eileen Denza

SUMMARY

Enormous growth in the substance of international law implies that it is now mostly
applied and enforced by national authorities and courts. International tribunals are clear
that in case of conflict the international rule prevails, but they will not invalidate national
law and have traditionally regarded as a domestic matter how the correct international
result is achieved. For national legislatures and courts by contrast, their mandate derives
from their national constitution. Constitutional provisions are complex and infinitely
varied and do not give clear answers to many problems which arise in national courts.
There is no prospect of a harmonized approach to the relationship between international
and national law, but it is possible to identify factors conducive to the avoidance
of conflict. These include close involvement of international lawyers in the treaty-making
and ratification process, attention at the time of ratification to implementation questions,
teaching of international law as part of professional training of judges, and expert
assistance to national courts when international law questions arise.

I. INTRODUCTION

The law of nations was until the middle of the twentieth century concerned mainly-
though never exclusively-with the conduct of sovereign States and the relations
between those States. Now, however, it permeates and radically conditions national
legal orders, its rules are applied and enforced by national authorities, and national
courts are often asked to resolve its most fundamental uncertainties. Yet international
law does not itself prescribe how it should be applied or enforced at the national level.
It asserts its own primacy over national laws, but without invalidating those laws or
 EILEEN DENZA
intruding into national legal systems. National constitutions are therefore free to
choose how they give effect to treaties and to customary international law. Their
choice of methods is extremely varied. Can it be said that certain constitutional
approaches are based on greater deference to international law or help to reduce
conflict between legal orders? If not, are there other general factors conducive to
greater mutual understanding and to the resolution of the practical problems of co-
existence?
II. THE APPROACH OF INTERNATIONAL COURTS
AND TRIBUNALS
The jurisdiction given to international courts and tribunals is normally limited to
the determination of questions of international law. As a matter of theory, there is
nothing to prevent two States from referring to international arbitration or even to
the International Court of Justice an issue of national law. Given the nature of inter-
national relations however, questions of national law usually arise before international
tribunals because they are relevant to the construction of an international agreement
or to the establishment of breach of an international obligation.
The Permanent Court ofInternational Justice in the cases of The Serbian LoansI and
The Brazilian Loans 2 explored the nature of its competence, under a Special Agreement
between France and the Kingdom of the Serbs, Croats and Slovenes, to construe the
terms of a loan contract between the Kingdom and French bondholders. The Court
observed that while its main function was to decide disputes between States on the
basis of international law, it also had jurisdiction to determine (the existence of any
fact which, if established, would constitute a breach of an international obligation'.
This jurisdiction included questions of municipal law.
The Court made clear however that it was not entitled to undertake its own
construction of national laws, with the danger of contradicting the rulings of national
tribunals. It said that:
It would be a most delicate matter to do so, especially in cases concerning public policy and
in cases where no relevant provisions directly relate to the questions at issue. It is French
legislation, as applied in France, which really constitutes French law ...
In the Nottebohm case3 the International Court of Justice had to determine whether
Liechtenstein was entitled to exercise a right of diplomatic protection of Nottebohm.
Nottebohm, a German national by birth, had become a naturalized citizen of
Liechtenstein but without having any real connections with that State. As a general
I Serbian Loans, Judgment No 14,1929, PCIJ, Ser A, No 20.
2 Brazilian Loans, Judgment No 15, 1929, PClJ, Ser A, No 21.
3 Nottebohm, Second Phase, Judgment, ICJ Reports 1955, p 4.
THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 417
rule, States are entitled to exercise diplomatic protection of their nationals, and inter-
national law does not impose limitations on the right of a sovereign State to deter-
mine who are its nationals. The Court emphasized, however, that the issue in the
case was not dependent on the legal system of Liechtenstein or on the validity of
Nottebohm's naturalization, which they did not consider. The question was whether
the grant of nationality by Liechtenstein produced international legal effects which
must be recognized by Guatemala.
A. WHERE NATIONAL LAW CAUSES BREACH OF
INTERNATIONAL LAW
International tribunals have consistently held that in the event of conflict between
international obligations and national law, the international rule prevails. The
position was set out in the draft Declaration on Rights and Duties of States prepared
by the International Law Commission and endorsed in 1949 by the UN General
Assembly. Article 13 provided that:
Every state has the duty to carry out in good faith its obligations arising from treaties and
other sources of international law, and it may not invoke provisions in its constitutions or
its laws as an excuse for failure to perform this duty.4
The rule was restated in Article 27 of the Vienna Convention on the Law of Treaties5 as
follows:
Internal law and observance of treaties
A party may not invoke the provisions of its internal law as justification for its failure to
perform a treaty. This rule is without prejudice to Article 46 ..
Article 46 permits a State to argue that its consent to a treaty was invalidated by
violation of its internal law only where (that violation was manifest and concerned a
rule of its internal law of fundamental importance'.
The Permanent Court of International Justice, in the Exchange of Greek and Turkish
Populations case,6 stated that it was self-evident that a State which had assumed valid
international obligations was bound to make such modifications in its legislation
as were necessary to ensure fulfilment of these obligations. The need for effective
implementation of international human rights obligations in national law so that
they can be relied on by individuals is particularly obvious, and the primacy of
international obligations over conflicting national law has .often been reaffirmed by
human rights tribunals. The Inter-American Court of Human Rights, for example,
in an Advisory Opinion on International Responsibility for the Promulgation and
Enforcement of Laws in Violation of the Convention said:
4 GA Res 375 (IV).
5 UKTS No 58 (1980), Cmnd 7964.
6 Exchange of Greek and Turkish Populations, Advisory Opinion, 1925, PClJ, Ser B, No 10.
418 EILEEN DENZA
Pursuant to international law, all obligations imposed by it must be fulfilled in good
faith; domestic law may not be invoked to justify nonfulfilment. These rules may be deemed
to be general principles of law and have been applied by the Permanent Court of Inter-
national Justice and the International Court of Justice even in cases involving constitutional
• •
proVlsions ...7
International tribunals will not however declare national laws invalid-merely that
these laws or the way in which they have been applied are inconsistent with inter-
national law. Thus the Inter-American Court of Human Rights, in the Advisory
Opinion just cited made clear that its Opinion related:
... only to the legal effects of the law under international law. It is not appropriate for the
Court to rule on its domestic legal effect within the State concerned. That determination is
within the exclusive jurisdiction of the national courts and should be decided in accordance
with theirlaws. 8
The International Court of Justice in the LaGrand case9 was required to consider the
consequences of the admitted failure by the United States to give timely notification to
two German nationals of their right to consular protection under Article 36 of the
Vienna Convention on Consular Relations. Notwithstanding a provisional order from
the ICJ asking the US to 'take all measures at its disposal' to stay execution of Walter
LaGrand until the case brought by Germany had been decided,lO he was executed as
scheduled. On the merits Germany later argued, inter alia, that the US constitutional
rule of 'procedural default' (under which a procedural failing which had not been
raised at State level could not be argued at federal level) violated the US obligation
under Article 36 of the Vienna Convention. This required the US to give full effect to
the purposes for which the rights to notification and consular access are intended. The
International Court rejected the suggestion by the US that in pronouncing on the
application of Article 36 it was acting as 'a court of appeal of national criminal
proceedings'. It further emphasized that:
In itself, the rule does not violate Article 36 of the Vienna Convention. The problem arises
when the procedural default rule does not allow the detained individual to challenge a
conviction and sentence by claiming, in reliance on Article 36, paragraph 1 of the Con-
vention, that the competent national authorities failed to comply with their obligation
to provide the requisite consular information 'without delay', thus preventing the person
from seeking and obtairllng consular assistance from the sending StateY
The Court held that an apology for any future violations of Article 36 would be
inadequate reparation, and that the US must allow review and reconsideration of a
7 Advisory Opinion, OC-14/94, Ser A, No 14, para 35,116 ILR 320.
8 Para 34.
9 LaGrand (Germany v United States ofAmerica), Merits, Judgment, ICJ Reports 2001, not yet reported. See
Mennecke and Tams, 2002.
10 LaGrand (Germany v United States of America), Provisional Measures, Order of 3 March 1999,
ICJ Reports 1999, p 9.
II LaGrand (Germany v United States of America), Merits, Judgment, ICJ Reports 2001, not yet reported,
paras 79-91.
THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 419
conviction and sentence in the light of the violation of the rights in the Convention.
They stressed however that this obligation could be carried out in various ways, and
that 'The choice of means must be left to the United States' .12
B. INTERNATIONAL LAW LOOKS MAINLY TO THE RESULT
Traditionally, international tribunals and supervisory bodies have concerned them-
selves only with the result in the specific case where there has been a complaint
of breach. The method of national implementation of international obligations has
been regarded as an internal affair. There are however signs of a rather more intrusive
approach.
In the European Community law context, the European Court of Justice from
the outset, went beyond asserting the primacy of a European Community treaty or
secondary obligation. In the case of Costa v ENEL,13 the ECJ did not limit themselves to
saying that Italy was in breach of its Community law obligations because its courts
upheld a later national measure which was inconsistent with these obligations. It held
that:
... the law stemming from the Treaty, an independent source of law, could not, because of
its special and original nature, be overridden by domestic legal provision, however ~amed,
without being deprived of its character as Community law and without the legal baSIS of the
Community itself being called into question.
This assertion of the supremacy of Community law-which is not self-evident on
the face of the European Community Treaties and has not gone unquestioned in
later years-is among the features distinguishing European Community: law from
international law (Craig and de Burca, 2002, ch 7). Member States have had to accept
that in consequence of the more intrusive nature of the Community legal order they
may be accountable for the method bywhich they ~ave imp~emented regulat~o.ns and
directives. The European Commission is charged WIth ensurmg that the provlSlons of
the Treaty are applied, and has been vigorous in monitoring methods of national
implementation of Community legal obligations.
In the field of international criminal law, it is now common for treaties not merely
to permit but to require the assumption of criminal jurisdiction at national level, ~nd
to set out a uniform definition of certain criminal offences in such a way that detailed
changes in national law are very likely to be required. Under the 198.4 United
Nations Convention Against Torture and Other Cruel, Inhuman or Degradmg Treat-
ment or Punishment,14 for example, there is first a uniform definition of torture for
the purposes of the Convention. Secondly, there is a requirement for ea~h. party to
take effective legislative, administrative, judicial, or other measures to prohIbIt torture
12 Ibid, para 125.
!3 Case 6/64 [1964] ECR 585.
14 UKTS No 107 (1991), Cm 1775.
 420 EILEEN DENZA
within its own jurisdiction and to ensure that all acts of torture are offences under
its criminal law. Thirdly, a party must establish a wider extraterritorial jurisdiction on
grounds such as the nationality of the alleged offender and where an alleged offender
is present in its territory and it does not extradite him. A party must take any alleged
offender found within its territory into custody, notify certain other States, and then
either extradite him or submit the case to its own prosecution authorities. The
requirements imposed on national laws by successive treaties in the field of inter-
national criminal law have become increasingly detailed and specific. Even the
1948 Convention on the Prevention and Punishment of the Crime of Genocide15
however-which may be regarded as the precursor of these treaties-provided in
Article V that:
The Contracting Parties undertake to enact, in accordance with their respective Constitu-
~ons, the necessary legislation to give effect to the provisions of the present Convention and,
III particular, to provide effective penalties for persons guilty of genocide or any of the other
acts enumerated in Article III.
The Convention against Torture, like many of its predecessor conventions in the
area of human rights, establishes a Committee whose functions include monitoring
national implementation. Parties are required to report to the Committee against
Torture, within one year of becoming legally bound by the Convention and sub-
sequently at four-yearly intervals, on the measures they have taken to give effect to
their undertakings. The Committee may comment on or criticize the effectiveness of
national implementing measures, and may make any criticisms public (along with
observations by the State concerned) in its own annual report. The scheme forms
a strong incentive for each government to give careful thought to the method of
national implementation at the time of ratification rather than simply leave to its
courts the task of giving effect to the Convention within the context of national
criminal law and procedure.
III. THE APPROACH OF NATIONAL PARLIAMENTS
AND NATIONAL COURTS
While the principles applied by international tribunals to the relationship between
international and national law are uniform and reasonably straightforward, tlIis is not
the. case when one examines the approaches taken by national parliaments or by
natIOnal courts. It becomes clear that for each national legislature and court, the
starting point for any examination of the relationship is its own constitution. It is not
that national bodies dispute as a matter of principle what is said by international
tribunals as to the position in international law, or that they dispute the existence or
15 UKTS No 58 (1970), Cmnd 4421; 78 UNTS 277.
THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 421
binding character of international law, but rather that they perceive the way in which
international law is integrated into and applied within their own legal order as being
their own constitutional affair. Other States do not question this autonomy, and even
international tribunals-as was illustrated above-regard the detail of national laws
and constitutional methods as outside their competence.
Scholars have put forward various theories to explain the relationship between
international and national law. Most persistent have been the theories of monism and
of dualism. In the view of the monists, there is a single legal system with international
law at its apex and all national constitutional and other legal norms below it in the
hierarchy. There is no need for international obligations to be 'transformed' into rules
of national law, and in case of any apparent conflict, the international rule prevails.
The fact that national organs do not behave according to such rules indicates the
weakness of international law, but does not invalidate the theory, since the State
will incur international responsibility where it permits violations of international
legal rules to occur. According to Kelsen, the leading exponent of the monist theory,
it could not be based on scientific observation, but was dependent on ethical
considerations (Kelsen, 1920).
Under the dualist theory, international law and national law operate on different
levels. International law is a horizontal legal order based on and regulating
mainly the relations and obligations between independent and theoretically
equal sovereign States. To the extent that to be effective it requires to be applied
at national level, it is for each State to determine how this is to be done. If
the international rule confers rights or obligations on individuals or entities
created under national law, the national legislature may 'transform' it into ~ rule
of national law, and the national judge will then apply it as a rule of national, or
domestic law.
There is no indication that either theory has had a significant input into the
development or revision of national constitutions, into the debates in national
parliaments about the ratification of international agreements, or into the decisions
of national courts on questions of international law. Except as shorthand indications
of the general approach within a particular State to implementation or application
of international rules, the theories are not useful in examining the relationship
between international law and national laws. They tend to suggest-at least to
students of international law-that there are only two methods of approach and
that one or other theory must be 'correct' or at least preferable. Neither of these
impressions is helpful. There are almost as many ways of giving effect to international
law as there are national legal systems. To classify a particular State as 'monist'
or 'dualist' does not greatly assist in describing its constitutional approach to
international obligations, in determining how its government and parliament
will proceed in order to adopt or implement a new treaty, or in predicting how
its courts will approach the complex questions which arise in litigation involving
international law.
 422 EILEEN DENZA
IV. THE SPECTRUM OF CONSTITUTIONAL RULES
Six States have been chosen as spanning the spectrum from monism to dualism and as
reflecting constitutions emerging, or undergoing revision, at different historical
periods. They are the Netherlands, Germany, France, Russia, the United States of
America, and the United Kingdom. In each of these cases, the constitutional approach
to international law chosen reflected the historical background to the adoption, or
revision of the constitution.
These necessarily brief accounts of the constitutional framework can give only a
partial account of rules which in all cases have been extensively interpreted and
supplemented by the practice of national legislative; executive, and judicial organs. It
is only in the light of that practice and jurisprudence that one can assess how the
practical problems which arise are dealt with at national level.
A. THE NETHERLANDS
The provisions in the Netherlands Constitution established in 1953 and revised in 1987
are based on two elements-a very strong degree of parliamentary control of the
approval of all treaties before the Netherlands becomes bound, and a clear hierarchical
superiority in the law of the Netherlands of treaties thus ratified over both prior and
subsequent laws and statutory regulations. Article 66 of the Constitution provides for
the supremacy of treaties to which the Netherlands is a party over prior and sub-
sequent national law, but Article 91 makes this supremacy conditional on the treaty
having been approved by the States-General and the Council of State. Such approval
may be express or tacit. Some categories of treaties are exempted by statute from the
requirement of parliamentary approval. Where any provision in a treaty conflicts or
may conflict with the Constitution, a two-thirds majority in the States-General is
required for approval. Netherlands courts may not subsequently review the compati-
bility of the treaty with the Constitution, though in other respects they interpret and
apply the treaty as national law. Article 93 further provides that treaties and resolutions
of international organizations become binding only after they are published.
Article 90 of the Constitution requires the government to promote the deVelop-
ment of the international rule oflaw. This however gives the government no mandate
to override careful scrutiny by the States-General, and before approval of treaties is
given lawyers and other negotiators are cross-examined in Parliamentary Committees
over the detail of their texts to an extent unparalleled elsewhere in Europe. Van Dikk
and Tahzib comment on this system of scrutiny:
Thus a fair balance is achieved between the primary duty of the Government to promote the
.internationallegal order and Parliament's control over the way this duty is exercised. 16
16 Van Dijk and Tahzib, 1994, p 125. See also van Panhuys, 1953; Schermers, 1987; Leigh, Blakeslee, and
Ederington (eds), 1999.
THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 423
B. GERMANY
The German Basic Law (Grundgesetz), reflecting the German experience of National
Socialism and the Second World War, provides in Article 25 that:
The general rules of public international law shall be an integ~al part of fe~eral law.
They shall take precedence over the laws and shall directly create nghts and dutIes for the
inhabitants of the federal territory.
Articles 23 and 24 of the Basic Law permit the Federation by legislation to transfer
sovereign powers to intergovernmental institutions, in particular to the European
Union established by the Treaty on European Union signed at Maastricht in 1992, and
to a system of mutual collective security in order to 'bring about and secure a peaceful
and lasting order in Europe and among the nations of the world'. Article 26 makes it
unconstitutional to carry out acts with the intention of disturbing peaceful relations
between nations, especially preparation of an aggressive war.
Article 59 however provides that:
(2) Treaties which regulate the political relations of the Federation or relate to matters
of federal legislation shall require the consent or participation, in the form of a federal law,
of the bodies competent in any specific case for such federal legislation ...
Under German constitutional practice, Parliament may be involved in treaty neg9ti-
ations, and policy issues may be discussed in the Foreign Affairs Comm~ttee of
the Bundestag or in that of the Bundesrat. The treaties regarded as regulat~g the
political relations of the Federation are those which might affect the eXl~ten:e,
independence, status, or role of the German State. Ultimate control of n~w tre~tl.es h~s
with the Federal Constitutional Court (Bundesverfassungsgericht) and Its deCISIOn ill
the matter binds all State organs.
The role of the Federal Constitutional Court was of central importance to
Germany's position as the last member State to ratify the Maastricht Treaty in ?993.
Even following adoption of the new Article 23 of its Basic Law as the ~asls fO.r
participation in the new European Union, Germany was unable to ratIfy u~til
the Constitutional Court had ruled in the case of Brunner v European Uman
Treaty. Brunner argued that the integration to be effected by the Treaty would lead to
'development towards the covert and irrevocable institution of a European federal
state'. On this, the court saidY
Germany is one of the 'Masters of the Treaties' which have e~tablishe~ thei~ adherence of the
Union Treaty concluded 'for an unlimited period' ... WIth the mtentlOn of long-~e~m
membership, but could also ultimately revoke that adherence by a contrary act. ~he ValI~lty
and application of European law in Germany depend on the applicatio~-of-Iaw ~st~uctIOn
of the Accession Law. Germany thus preserves the quality of a sovereIgn State m Its own
right and the status of sovereign equality with other States ...
17 [1994] 1 CMLR 57, at para 55. See also Schwarze, 1994, 1995,2001; Treviranus and Beemelmans, 1995.
 424 EILEEN DENZA
c. FRANCE
The 1958 Constitution of the Fifth Republic also requires careful control of the
ratification of treaties. Article 53 provides that:
Peace treaties, commercial treaties, treaties or agreements concerning international
organizations, those which impose a financial burden on the State, those which modify
legislative provisions, those concerning personal status, those which effect cession, exchange
or addition of territory, may not be ratified or approved except by virtue of a law.
Under Article 54, if the Constitutional Council (Conseil Constitutionnel) declares
that an international commitment contains provision adverse to the Constitution,
authorization to ratify may be given only after amendment of the Constitution.
Amendment under the terms of this provision has been made for the ratification
of the Maastricht Treaty, and more recently for the ratification of the Statute of the
International Criminal Court. I8 In 1985 the Constitutional Council concluded that
Protocol No 6 to the European Convention on Human Rights and Fundamental
Freedoms on the Abolition of the Death Penalty was not in conflict with the Constitu-
tion and, in particular, that it was not inconsistent with the essential conditions for
national sovereignty (Favoreu, 1985). Article 55 provides that treaties duly ratified
have, after publication, an authority superior to legislation. Only in 1989 however did
the Conseil d'Etat accept that this superiority applied not only to earlier but also to
later national legislation (Eisemann and Kessedjan, 1999).
Under French practice, the Minister for Foreign Affairs may issue an interpretation
of a treaty provision to a court, and this interpretation can be relied on in later
cases involving the same provision if it is of general application and binding on the
court. 19
D. RUSSIA
In 1993, after a prolonged internal battle between the Constitutional Commission
and President Yeltsin, the Russian Federation adopted a new Constitution to reflect
the newly democratic character of Russia and a new acceptance of the international
legal order. Article 86 of the Constitution gives the President of Russia the power
to negotiate and conclude treaties. Article 106 provides for both Chambers of
Parliament (the Duma andthe Federal Coun~il) to give consent to treaties by federal
law. Some uncertainties as to the meaning of these provisions were later resolved
by the 1995 Federal Law on International Treaties which reflected accession by
Russia to the Vienna Convention on the Law of Treaties. As with most national
constitutions, publication is essential for a treaty to carry binding force in Russian
law.
Under Article 15.4 of the 1993 Constitution:
18 Constitutional Law of 8 July 1999, No 99-568.
19 Affaire Barbie, 100 ILR 330.
THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 425
The generally recognized principles and norms of international law and the international
treaties of the Russian Federation shall constitute part of the legal system. If an inter-
national treaty of the Russian Federation establishes other rules than those stipulated by the
law, the rules of the international treaty shall apply.
This provision gives clear priority to both customary international law and treaties
in force for Russia over both earlier and later national laws. It marked a radical
change from the position under the 1977 Constitution of the Soviet Union which did
not permit treaties to be invoked before domestic courts. The numerous treaties
on human rights which the Soviet Union had so freely ratified without reservation
suddenly became enforceable in Russian courts. Russian courts are increasingly
applying principles of international law directly-particularly on human rights-
though they have been hampered by the limited experience of judicial independence,
the lack of professional training in international law, and the shortage of relevant
materials in Russian translation.
Article 15.4 does not however give international law priority over the Russian
Constitution. The Constitutional Court may review the compatibility with the
Constitution of treaties not yet in force for Russia, and probably also of treaties
already in force (Danilenko, 1994; Butler, 1997; Danilenko, 1999).
E. THE UNITED STATES
Under Article II section 2 of the Constitution of the United States, adopted in 1787
when the original confederal system was replaced by a fully federal sys~em, the
President:
... shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur ...
It is clear that the 'advice and consent' was intended to require consultation of the
Senate during negotiations, but following one unhappy experience, the first President,
George Washington, limited consultation to the approval of treaties before their
ratification.
Article VI section 2 further provides that:
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the authority of the United
States, shall be the Supreme Law of the Land, and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.
International law was accepted as part of the law of the individual States, and fol-
lowing the formation of the United States it was also accepted as part of federal
law without the need for incorporation by Congress or by the President. International
law is however regarded as subject to the Constitution and thus, at national level,
to 'repeal' by later law of the United States. Wherever possible a US statute will
 426 EILEEN DENZA
be construed in such a way as not to conflict with international law or US treaty
obligations. Where no such reconciliation is possible, it is accepted that the change in
domestic law does not relieve the United States of its international obligation or the
consequences of violation of that obligation.
International law and international agreements binding on the United States
may be interpreted and enforced by United States courts. According to the Third
Restatement of the Foreign Relations Law of the United States:
(2) Cases arising under international law or international agreements of the United
States are within the Judicial Power of the United States and, subject to Constitutional and
statutory limitations and requirements of justiciability, are within the jurisdiction of the
federal courts.
(3) Courts in the United States are bound to give effect to international law and to
international agreements of the United States, except that a 'non-self-executing' agreement
will not be given effect as law in the absence of necessary implementation.20
Determinations of international law by the Supreme Court, including review of
State laws on grounds of inconsistency with international law, are binding on the
States and on State courts. There are complex rules of constitutional law and practice
determining whether an agreement is 'self-executing' in the United States. Where an
agreement is given effect in United States law, it is the implementing legislation rather
than the agreement which is regarded as United States law. 21
Under United States judicial practice, great weight is given to views on questions
of international law expressed by the US government, whether by way of amicus
curiae briefs, interventions as a party or 'executive suggestions'. This is done on the
grounds that it is desirable that the United States should speak with one voice on such
questions and that the executive branch will have to answer for any alleged breach of
international law by the United States.
F. THE UNITED KINGDOM
Under the unwritten constitution of the United Kingdom, Parliament has the
supreme power to establish and to change the law of the United Kingdom. The
conduct of foreign affairs, including the conclusion and termination of treaties,
remains under the royal prerogative-which means that it is carried out by the
government of the day. The government are broadly accountable to Parliament for
their conduct of foreign affairs.
Customary international law has long been regarded as part of the law of England
and of Scotland without any need for specific incorporation. Treaties however are
not regarded as a source of rights or obligations in domestic law. The reason is that
~O Chapter 2 Status ofInternational Law and Agreements in United States Law, s. Ill.
1 Third Restatement of the Foreign Relations Law of the US. See also Jackson, 1987; Riesenfeld and
Abbott, 1994; Aust, 2000, pp 157-161.
THE RELATIONSHIP BETWEEN INTERNATIONAL ANP NATIONAL LAW 427
otherwise it would be open to the monarch and now to the executive to alter national
law by means of a treaty instead of through the enactment of legislation and thus to
bypass the supremacy of Parliament. The result is that it is in theory open to the
executive to assume international legal commitments, but these will not be given
effect within the national legal system if they require changes in the law or the
jurisdiction of the United Kingdom or the payment of money (which must be voted
by Parliament). The executive may conclude treaties which do not (or are not thought
to) involve changes in domestic law-for example Treaties of Friendship, Investment
Promotion and Protection Agreements, Cultural Agreements.
The position was expressed succinctly by Lord Templeman thus in one of the cases
which resulted from the collapse in 1985 of the International Tin Council and the
attempts of its creditors through UK courts to recover their losses from its member
States:
A treaty is a contract between the governments of two or more sovereign states. Inter-
national law regulates the relations between sovereign states and determines the validity, the
interpretation and the enforcement of treaties. A treaty to which Her Majesty's Government
is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into
or alter the laws of the United Kingdom by means of legislation. Except to the extent that
a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts
of the United Kingdom have no power to enforce treaty rights and obligations at the behest
of a sovereign government or at the behest of a private individual. 22
By a constitutional convention, known as the Ponsonby rule, all treaties subject to
ratification are laid before Parliament for twenty-one days on which it is sitting.
Although in theory this opens the way to a debate, it has almost never happened
that for a treaty-even an important one-not requiring any change in UK law,
Parliament pressed for a debate, or the government arranged it. The Foreign and
Commonwealth Office since 1996 accompany the treaty text with an Explanatory
Memorandum which enables issues of significance to be identified. 23 Where the treaty
will require changes in the law of the United Kingdom or payment of money, the
government must also secure passage of the necessary changes-whether by Act of
Parliament or by secondary legislation-before the treaty is ratified or otherwise
brought into force for the United Kingdom. Except in rare cases of inadvertence, the
government never assume international commitments without being able to give
internal effect to them. These constitutional constraints make the United Kingdom a
demanding partner in international negotiations, but rigorous scrutiny of national
implementation before ratification have meant that it has rarely been found in breach
of its commitments.
The UK government do not direct the courts on questions of international law.
On request from the court or from a party to litigation however the Foreign and
22 IH Rayner v Department of Trade and Industry [1988] 3 All ER 257; 81 ILR 670.
23 For the new arrangements, see Hansard, HC, vol 576 (16 December 1996) WA 1101, 1996 BYIL 746
and 753.
 EILEEN DENZA
Commonwealth Office issue certificates on points of fact peculiarly within the
knowledge of the government. These relate, for example, to whether an entity is
recognized as a State or government and to whether an individual has been notified
and received as a member of a diplomatic mission. Where a point of international
law of interest to the government is in issue in litigation, the Attorney-General may
nominate Counsel to assist the court as amicus curiae. But although Counsel so
nominated may be assisted by government legal advisers, he is not directly instructed
and remains an independent 'friend of the court'.
These brief and superficial surveys illustrate that at the stage of national acceptance as
well as of national judicial application of international law obligations, the methods
employed do not turn on any universally applicable theory of the relationship. They
turn rather on the relationship between the executive, legislative, and judicial organs
of each State, on how a potential new international obligation is to be democratically
considered before it is accepted, on how its subsequent application can be effectively
guaranteed, and on whether the national courts are judicially independent of the
executive in determining issues of international law.
v. SOME PROBLEMS WHICH ARISE IN
NATIONAL COURTS
Examination of a few of the cases in national courts where the question of the
relationship between international and national law has been raised show the extreme
diversity of the issues which present themselves. In many cases these issues are not
capable of easy resolution in terms of national constitutions, far less in terms of
general theories.
A. DOES A RULE OF CUSTOMARY INTERNATIONAL LAW PREVAIL
OVER CONFLICTING NATIONAL LAW?
It seems that all national legal systems-even that of the United Kingdom and the
Commonwealth States whose constitutions have followed the same approach-accept
customary international law as an integral part of national law. Incorporation is
specifically provided for in some constitutions, but in others which make no specific
provision the result is the same. The nature of customary international law as part
of Scots law was examined for the first time in 1999 by the Appeal Court of the High
Court of Justiciary in two criminal cases where the defendants, charged with sabotage
against Britain's nuclear weapons, argued as 'reasonable excuse' for their conduct the
international illegality of the holding of these weapons. The court held, without
citing Scottish authority since there was none, that a 'rule of customary international
THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 429
law is a rule of Scots law'. It was not a question of fact to be established (like foreign
law) by expert evidence, but was to be argued by submission and decided by the
judge. 24
English courts however found themselves for many years precluded from applying
modern customary international law rules on restricted State immunity because the
old rule of absolute State immunity had become embedded, or 'transformed' into
English common law by a series of judicial decisions. Under the English rules on
precedent, the judges maintained that the old rule could be reversed only by the
House of Lords as the supreme appellate body. Eventually Lord Denning, presiding
over the Court of Appeal in the case of Trendtex Trading Corporation Ltd v Central
Bank of Nigeria persuaded one of his two judicial colleagues that this attitude was
wrong. Customary international law was incorporated into English law so that when
its rules changed, English law also changed. Lord Denning said:
International law does change, and the courts have applied the changes without the aid of
any Act of Parliament. Thus, when the rules of international law were changed (by the force
of public opinion) so as to condemn slavery, the English courts were justified in applying
the modern rules of international law ...25
In the United States it had been possible twenty-five years before to change the
rules on sovereign immunity applied by the courts by means of' executive suggestion'.
In the widely publicized Tate letter from the Acting Legal Adviser to the State
Department to the Acting Attorney General the government made clear that they
would thereafter follow the restrictive theory of sovereign immunity and would file
a suggestion of immunity only in respect of the public or sovereign acts of a foreign
State (acta iure imperii).26
B. WHAT IS THE MEANING OF AN INTERNATIONAL LAW RULE IN
THE CONTEXT OF DOMESTIC LAW?
In most cases, the national court does not merely have to decide whether to apply
a rule of international law on its own, but on the meaning and effect of the inter-
national rule in the domestic law context where it arises. Thus, in the Scottish
nuclear weapons protesters cases described above, holding that international law
was part of Scots law was not the end of the matter. The court had then to consider
whether the holding of nuclear missiles was lawful under international law-a
question which had been carefully avoided by the International Court of Justice 27 -
and further whether international law gave individuals a right of forcible intervention
to stop international crimes such as would amount to a defence of 'necessity' under
Scottish criminal law.
24 Cases of fohn v Donnelly and Lord Advocate's Reference No 1,2000,2001 SLT 507 (Greenock anti-nuclear
activists), described in Neff, 2002.
25 [1977] 1 QB 529; [1977] 1 All ER 881.
26 26 Department of State Bulletin 984 (1952).
27 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, Ief Reports 1996, p 226.
 43 0 EILEEN DENZA
In Re AI-Fin Corporations's Patent the Chancery Division of the English High Court
had to construe the terms of the Patents Act 1949 which allowed extension of a patent
where the patentee had suffered loss 'by reason of hostilities between His Majesty and
any foreign state'. Al-Fin appealed against a ruling which said that the Korean War of
1950-1953 did not qualify because North Korea had not been recognized by the UK
government as a sovereign State. The Foreign Office stated that it did not, in the area
of Korea in question, recognize any independent sovereign state either de facto or de
jure-but it made clear that the construction of the Patents Act was aquestion for the
court on the basis of the evidence. The court held:
that the phrase 'any foreign state' although of course it includes a foreign state which has
been given Foreign Office recognition, is not limited thereto. It must at any rate include a
sufficiently defined area of territory over which a foreign government has effective controp8
United States courts have been required directly to determine questions of inter-
national law by the Alien Tort Statute 1789,29 which confers original jurisdiction on
federal district courts to determine 'any civil action by an alien for a tort only, com-
mitted in violation of the law of nations or a treaty of the United States'. Since the
rediscovery of this statute in the celebrated case of Filartiga v Pena-Irada,30 where the
plaintiff claimed damages for the torture of his son in Paraguay, the courts have on
many occasions had to decide whether conduct which had taken place abroad violated
modern rules of international law. It is however rare for a national law to assign to its
courts in this way decisions on questions of international law which are so central to
any litigation.
C. IS THE INTERNATIONAL RULE DIRECTLY APPLICABLE AND
DIRECTLY EFFECTIVE?
International courts often have to determine whether an international rule-usually
a treaty provision-is directly applicable, so that no further implementing action
is required for it to be legally binding at national level. This question is often cast in
terms of whether the treaty is 'self-executing' -an expression which may under
national law depend solely on construction of the treaty or may also (particularly in
the United States) turn on internal constitutional practice. A different question is
whether the rule is directly effective-so that an individual may rely on it as a source
of rights at national leveL The distinction between direct applicability and direct effect
has been clarified by the jurisprudence of the European Court of Justice. Contrary to
what is sometimes suggested, the ECJ did not invent the doctrine of direct effect,
which can be traced back to rulings of the Permanent Court of International Justice
and to cases in European jurisdictions, but it did lay down criteria which were to be
28 [1970J Ch 160.
29 28 USC § 1350.
30 630 F. 2d 876 (1980); 577 F. Supp 860.
THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 431
uniformly applied throughout the European Community. It is this uniformity which
is one of the most striking features distinguishing European Community from public
international law.
The cases of Breard v Pruett, Breard v Greene were almost identical to the LaGrand
case which was described above. 31 Breard was a national of Paraguay convicted of
murder by a Virginia court in the United States. A few days before he was to be
executed, Paraguay brought proceedings before the International Court of Justice, on
the ground that the authorities had failed to inform him of his rights to consular
protection under Article 36 of the Vienna Convention on Consular Relations. The ICJ
issued an interim order requesting that the United States should take all measures to
suspend the execution pending its final decision. 32 On the day of the execution, the
Supreme Court considered petitions seeking a stay of execution. Among the issues
considered was whether Article 36 of the Vienna Convention requiring notification to
a person arrested of his rights to consular access and consular protection, was directly
effective in a national court. On this, the Supreme Court held that:
... neither the text nor the history of the Vienna Convention clearly provides a foreign
nation a private right of action in United States courts to set aside a criminal conviction and
sentence for violation of consular notification provisions. 33
The Supreme Court denied the petitions by a majority of six to three and Breard was
executed in the face of the ICI's order.
A somewhat similar issue was raised in the case of US v Alvarez-Machain in 1992.
Alvarez-Machain, a national of Mexico, was abducted in an operation for which the
US Drugs Enforcement Agency (DEA) were responsible. Charged with kidnap and
murder of a DEA agent he argued that his forcible abduction constituted outrageous
conduct in violation of customary international law and that US courts therefore
lacked jurisdiction to try him. The Supreme Court, reversing by majority the decision
of the Court of Appeals, accepted that the abduction, against which Mexico had
protested, violated general international law principles. This violation did not
however give the defendant a free-standing right to contest jurisdiction. Nor could
the US-Mexico Extradition Treaty be read as including an implied term prohibiting
abduction or prosecution when the defendant's presence was obtained by means
outside the Treaty. 34
In the following year a similar situation arose in the English case of Bennett v
Horseferry Magistrates' Court. There the presence of the accused resulted from an
abduction by South African police in collusion with English police. The House of
Lords by majority held that the courts should decline as a matter of discretion to
exercise criminal jurisdiction. Lord Bridge said:
31 See text above at n 9.
32 Vienna Convention on Consular Relations (Paraguay v United States of America), Provisional Measures,
Grder of9 April 1998, IC! Reports 1998, p 248.
33 134 F. 3d 615 (1998); 118 ILR 23.
34 [1992)112 S Ct 2188, USSc.
43 2 EILEEN DENZA
Where it is shown that the law enforcement agency responsible for bringing a prosecution
has only been enabled to do so by participating in viohitions of international law and of the
laws of another state in order to secure the presence of the accused within the territorial
jurisdiction of the court, I think that respect for the rule of law demands that the court take
cognisance of that circumstance. 35
D. DOES A TREATY PREVAIL OVER INCONSISTENT NATIONAL LAW?
On the whole, national constitutions give clear directions to their courts on questions
of priority, though they differ. For the United Kingdom and for its former dependen-
cies which continued to follow its constitutional approach on becoming independent
States within the Commonwealth, an unincorporated treaty cannot prevail over
a conflicting statute, whether the statute is earlier or later in time. Under Article 55
of the French Constitution, by contrast, duly ratified and published treaties take
precedence over national laws, whether earlier or later. The Constitutional Council in
1988 examined a complaint by candidates in elections to the National Assembly
requesting annulment of elections in a particular constituency on the ground that the
French Law of II July 1986 prescribing the procedure for elections to the National
Assembly violated Article 3 of the First Additional Protocol to the European Conven-
tion on Human Rights and Fundamental Freedoms, signed in 1950. This requires that
elections should take place 'under conditions which will ensure the free expression of
the opinion of the people in the choice of the legislature'. The Constitutional Council
held, however, that taken as a whole, the 1986 Law was not inconsistent with Protocol
No l.
The Russian Constitution of 1993, as explained above, gives priority to customary
international law and treaties over inconsistent Russian national laws. Article 17 of
the Constitution further guarantees human rights in conformity with generally
recognized principles of international law. In the Case Concerning Certain Normative
Acts of the City of Moscow and Some Other Regions,36 the Constitutional Court
reviewed the legality oflocal acts reintroducing a residence permit requirement in the
light of Article 17. The court held that they were inconsistent with the right to
freedom of movement and choice of place of residence which was guaranteed under
Article 12 of the International Covenant on Civil and Political Rights, by Protocol No
4 to the European Convention on Human Rights and by general principles of inter-
national law.
Under the United States Constitution an act of Congress supersedes an earlier rule
of international law if it is clear that this was the intention of the domestic law and the
two cannot fairly be reconciled. Thus in the Breard case described above, the Supreme
Court found that to the extent that Breard had a right to consular assistance on the
basis of Article 36 of the Vienna Convention on Consular Relations, it had been
35 [1993] 3 All ER 138 at 155.
36 VKS 1996 No 2, described in Danilenko, 1999, pp 57, 64.
THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 433
superseded in 1996 by the express terms of the Antiterrorism and Effective Death
Penalty Act, providing that a petitioner in federal courts alleging that he was held
in violation of treaties of the United States would not, as a general rule, be afforded
an evidentiary hearing on his claim if he had failed to develop the factual basis of his
claim in state courts. 37
The courts of the United States, as well those of the United Kingdom and of other
States where divergence from the international law rule may arise at national level,
will usually go to considerable effort to avoid conflict. The approach of English courts
was set out by Lord Denning in Saloman v Commissioners of Customs and Excise,
where he said of a treaty which could not directly be relied on but which formed part
of the background to the statutory provision in issue:
I think we are entitled to look at it because it is an instrument which is binding in inter-
national law and we ought always to interpret our statutes so as to be in conformity with
internationallaw. 38
The case of Alcorn v Republic of Colombia and others 39 in 1984 raised the question
whether attachment or execution of a judgment could take place against the ordinary
bank account of a diplomatic mission. The question had not been expressly regulated
by the UK State Immunity Act 1978. The House of Lords accepted, largely on the basis
of a 1977 judgment of the German Constitutional Court in proceedings against the
Philippine Republic that international law required such immunity from legal process
to be granted. Lord Diplock observed that the position in international law at the date
of passing of the State Immunity Act was not sufficient to conclude the question of
construction, and said:
It makes it highly unlikely that parliament intended to require United Kingdom courts to
act contrary to international law unless the clear language of the statute compels such a
conclusion; but it does not do more than that.
A similar approach was taken in 1988 by the Southern District Court of New York in
US v The Palestine Liberation Organization and others, which held that the US Anti-
Terrorism Act 1988 did not supersede the 1946 Headquarters Agreement between the
UN and the USA. The District Court emphasized that precedence of a later statute
over a treaty occurred only where the two were irreconcilable and Congress had
clearly shown an intent to override the treaty in domestic law stating that:
. .. unless this power is clearly and unequivocally exercised, this court is under a duty to
interpret statutes in a manner consonant with existing treaty obligations. This is a rule of
statutory construction sustained by an unbroken line of authority for over a century and a
half.40
37 118 ILR 23, at 33-34.
38 [1967] 2 QB 116. See also Lord Denning in Corocraft Ltd and another v Pan American Airways Inc
[1969]1 QB 616.
39 [1984] 2 All ER 6.
40 American International Law Cases 2nd Series vol 12, p 386, 695 F. Supp 1456 (1988); 82 ILR 282.
434 EILEEN DENZA
E. CAN A TREATY PREVAIL OVER A NATIONAL
CONSTITUTIONAL NORM?
There are many instances where a national constitutional court has reviewed the
compatibility with the national constitution of a treaty before ratification. As was
mentioned above, both the French and German Constitutions were amended in order
to ensure the compatibility of the Treaty on European Union signed at Maastricht
with the national constitutional order. It may be argued that in passing the European
Communities Act 1972 the United Kingdom also amended its constitution in order
to be able to accept features of the Community legal order-in particular direct
applicability of Council and Commission regulations and direct effect-which were
inconsistent with its own approach to the implementation of international
obligations.
With the possible exception of the Netherlands Constitution, there appears on the
other hand to be no example of a national legal order requiring the supremacy
of international legal obligations over the national constitution. The transparent pro-
cedures used before the acceptance of ground-breaking treaties by most States seem
to have ensured that direct conflicts between national constitutions and treaties in
force have been rare. In 1974 however the German Federal Constitutional Court in
the Internationale Handelsgesellschaft case41 considered the possibility that European
Community law might infringe the constitutional rights guaranteed under the
German Constitution. The court said that so long as [solange] the Community did
not have its own catalogue of fundamental rights, the German courts must reserve the
right to examine the compatibility of Community law with the fundamental rights in
the German Constitution. The judgment (which became known colloquially as the
Solange judgment) appeared to challenge the doctrine of the supremacy of European
Community law, and it gave rise to the first of successive attempts by the Commission
of the European Communities, by Germany and some other member States to secure
accession by the Community to the European Convention on Human Rights. It
shows clearly however that for German courts, their own constitution, as amended to
provide for acceptance of specific treaties, is their supreme law.
F. SHOULD THE EXECUTIVE DIRECT OR GUIDE THE
NATIONAL COURT?
In most States this question is not dealt with in constitutional provisions, but is clear
from practice. It cannot be expected that national judges will have profound and
up-to-date knowledge of international law, even where it forms part of their
legal education. Except where there are practising lawyers with this expertise, or the
possibility of international law teachers appearing as advocates, the main source of
expert advice will usually be the lawyers working continuously for the government on
41 [1974] 2 CMLR 540.
THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 435
international law questions. As explained above, national courts are eager, con-
sistently with their own constitutional mandate, to avoid conflicts with international
obligations which would embarrass their governments. They accept that it is highly
desirable that on questions of recognition, jurisdiction, and immunity the State
should speak with one voice.
In a surprisingly large number of States-notwithstanding any principle of
separation of powers-the executive will direct a national court on questions of
international law-particularly on diplomatic and State immunity. In France, for
example, the Conseil d'Etat would until recently normally seek guidance from
the Ministry of Foreign Affairs on the construction of an international agreement,
particularly if it saw a danger of embarrassment to the government. French courts
may however decide that a reference is unnecessary because the treaty is clear (acte
clair) and may dissent from the advice given (de la Rochere, 1987).42 In the United
States, as explained above, although the courts have general powers to determine
questions of international law, it is usual for the executive to give assistance in sensi-
tive cases, either through amicus curiae briefs, interventions or 'executive suggestions',
though the last of these is no longer in favour. In the legal battles over Concorde's
access to Washington and New York, culminating in the case of Air France and British
Airways v Port Authority of New York and New Jersey in the US District Court of New
York and the US Court of Appeals, amicus curiae briefs from the United States gov-
ernment to the courts on its international obligations under the bilateral air services
agreements with the United Kingdom and with France were crucial to the airlines'
success and so to Concorde's entry into commercial service (Owen, 1997, ch 10).
In the United Kingdom, the executive are constrained by the independence of the
courts from offering direction or guidance on questions of law. On questions of fact
however which are peculiarly within the knowledge of the government it has long
been practice to provide certificates on request, and recent statutes on privileges and
.immunities, such as the Diplomatic Privileges Act 196443 and the State Immunity Act
1978,44 expressly provide for such certificates to be given 'by or under the authority of
the Secretary of State' and for their conclusive effect. In cases of importance for the
government, the Attorney-General may nominate counsel to act as amicus curiae,
although the amicus will act in a more independent role than under the US pro-
cedure. Nominations were made in the case of Alcom v Colombia described above
(where the junior counsel thus nominated was Professor, now Judge Rosalyn Higgins)
and in both of the hearings before the House of Lords in the Pinochet case. 45
42 See GISTI case, Conseil d'Etat, 29 June 1990, III ILR 499; AGYEPONG case, Conseil d'Etat, 2 December
1994, III ILR 531. In the case of Beaumartin v France (1994) 19 EHRR 485, the European Court of Human
Rights held that the practice was incompatible with the right, under Article 6 of the ECHR, of access to
'an independent and impartial tribunal established by law'.
43 c. 81, s. 4. For examples, and for US practice see Denza, 1998, pp 253-256.
44 s.21. _..
45 [1998] 3 WLR 1456 and [1999] 2 All ER 97. On the contrasting approaches of US and UK courts, see
Collins, 2000.
 EILEEN DENZA
G. SHOULD A NATIONAL COURT APPLY A FOREIGN LAW WHICH
CONFLICTS WITH INTERNATIONAL LAW?
Th~ six questi~ns. described above raise questions about the application of inter-
natI~nal law wl~m each national legal order and, generally speaking, answers are
provl~ed for natI~nal courts by national constitutional law and practice. Two other
questIons often anse for which no direct answers are given in national constitutions.
The first of these concerns the effect of a foreign law or executive action which is
~leged .to contravene international law. To answer this question the national court
IS reqmred not merely to ascertain the content of international law but to decide
whether it has been violated by the act of another State and, if so, what will be the
effect of that illegal act within its own legal order.
The doctrine of judicial restraint in scrutiny of the acts of another sovereign
has been most extensively developed by the courts of the United States. The classic
stateme~t of the rule, in 1897, was in Underhill v Hernandez, where the Supreme
Court saId:
every sovereign state is bound to respect the independence of every other sovereign state,
and the courts ~f ~n~ country will not sit in judgment on the acts of the government of
another, done WIthm Its own territory.46
T.he rul.e has often been applied in the context of acts of expropriation alleged to
VIolate ~ternational lav:,
and US courts have adopted a flexible approach designed
not to hmder the exec~tlve and legislative branches in their conduct of foreign policy.
!he act of state doc:nne was re-examined by the Federal Court of Appeals in 1983
m the context of claIms of corruption and anti-competitive practices in the context
of an aw~rd of a c.oncession to exploit offshore oil. In the case of Clayco Petroleum
Cor~ora~l~n v Occtdental Petroleum Corporation and others the court confirmed the
apph.cabillty of the doctrine. The grant of a concession to exploit natural resources
was mherently a so:ere~gn act which no private person could perform, and 'the
purpos~ of the doctrme IS to prevent the judiciary from interfering with the political
branch s condu.ct o.f foreign policy'Y By contrast, the US Court of Appeals refused to
apply the doctnne m the case of Republic of the Philippines v Marcos and others, where
th~ s.uccessor governme~t ~f the Philippines sought to prevent further misappro-
pna:lOn of real propertIes m New York illegally acquired by Marcos when he was
PreSIdent. The court noted that any misappropriation had been a purely private act
that Marcos w~s. no. longer .President of the Philippines, and that the present govern~
ment of the Phillppmes actIvely sought the assistance of the US courts. This action b
the new government was not expropriation: y tion of a national statute or a claim brought under national law. The court, with
The co~plaint seeks recovery of property illegally taken by a former head of state, not
confiscatIOn of property legally owned by him.48
46 168 US 250, 18 S Ct 83n (1897).
47 712 F. 2d 404 (1983); 81 ILR 522.
48 806 F. 2d 344 (1986); 81 ILR 581.
THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 437
The House of Lords recently examined the scope of the rule in the case of Kuwait
Airways Corporation v Iraqi Airways.49 The case resulted from the taking by Iraqi forces
during their invasion of ten commercial aircraft belonging to Kuwait Airways
Corporation (KAC) and their transfer, by decree of the Revolutionary Command
Council, to the state-owned Iraqi Airways Company. Some of the aircraft were later
destroyed by coalition bombing during the conflict to liberate Kuwait and' others were
flown to and sheltered by Iran. KAC claimed the return of the aircraft or payment
of their value, and damages. To determine liability under English law for the events of
1990 and 1991 it was necessary to apply the law of Iraq and thus to determine
the validity of the decree of the Revolutionary Command Council. It was clear that
the invasion of Kuwait and the seizure of its assets violated fundamental rules of
international law including binding Security Council Resolutions. Lord Nicholls went
on to say, at paragraph 29:
Such a fundamental breach of international law can properly cause the courts of this coun-
try to say that, like the confiscatory decree of the Nazi government of Germany in 1941, a
law depriving those whose property has been plundered of the ownership of their property
in favour of the aggressor's own citizens will not be enforced or recognized in proceedings
in this country. Enforcement or recognition of this law would be manifestly contrary to
the public policy of English law. For good measure, enforcement or recognition would
also be contrary to this country's obligations under the UN Charter. Further, it would sit
uneasily with the almost universal condemnation of Iraq's behaviour and with the military
action, in which this country participated, taken against Iraq to compel its withdrawal
from Kuwait. International law, for its part, recognises that a national court may properly
decline to give effect to legislative and other acts of foreign states which are in violation of
international law ...
Although the US and English cases on this form of 'act of State' have developed
on parallel tracks, a comparison shows that the US cases are based more closely on
deference to the views of the executive, so that the State may speak with a single voice,
while the English courts are seeking rather to apply international law themselves.
H. ARE THERE QUESTIONS OF INTERNATIONAL LAW WHICH
NATIONAL COURTS SHOULD DECLINE TO ANSWER?
Generally speaking, where questions of international law arise before national courts,
they are either (as with immunity) an essential preliminary to any assumption of
jurisdiction over the claim or criminal charge, or they are incidental to the construc-
whatever assistance it can secure from counselor from its ministry/of foreign affairs,
must do the best it can. Sometimes, however, where a question of international law is
central to the claim, English and US courts have held that they are in effect not
competent to answer it. The classic statement of this principle of 'judicial restraint'
49 HL Judgment of 16 May 2002 [2002] UKHL 19, at www.parliarnent.the-stationery-office.co.uk.
 EILEEN DENZA
was the judgment of Lord Wilberforce in the House of Lords in the case of Buttes Gas
and Oil Co v Hammer. 50 On its face the claim brought was one of defamation and the
defence was one of justification. But the underlying issue concerned a dispute over the
extent of the territorial waters of Sharjah in the Persian Gulf and the right to exploit
natural resources below these waters, and could not be decided without investigation
of the conduct of Umm al Qaiwain, Iran, and the United Kingdom as well as Sharjah.
Lord Wilberforce, with the support of his four judicial colleagues, found that" for an
English court there were no judicial standards to judge the issues of international law
and that:
... the court would be in a judicial no-man's land; the court would be asked to review
transactions in which four sovereign states were involved, which they had brought to a
precarious settlement, after diplomacy and the use of force, and to say that at least part of
these were 'unlawful' under international law.
The principle of judicial restraint was considered more recently in the successive
Pinochet cases before the House of Lords. In the first case both Lord Slynn and
Lord Lloyd - both of whom also held that General Pinochet was entitled to immunity
as a former Head of State-maintained that the rule was applicable. Lord Lloyd said
assumption of jurisdiction would imperil relations between governments and that:
... we would be entering a field in which we are simply not competent to adjudicate. We
apply customary international law as part of the common law, and we give effect to our
international obligations so far as they are incorporated in our statute law; but we are not an
international court. 51
Lord Nicholls and Lord Steyn (who with Lord Hoffmann formed the majority in the
court) held however that the doctrine did not apply. Lord Steyn did so on the basis
that the charges against General Pinochet were already in 1973 condemned as high
crimes by customary international law and that it would be wrong for English courts
to extend the doctrine of judicial restraint in a way which ran counter to customary
international law at the relevant time. In the third Pinochet case before the House of
52
Lords judicial restraint was given short shrift.
The Buttes case was highly unusual and the doctrine of judicial restraint has been
strongly criticized by Rosalyn Higgins (Higgins, 1991, pp 273-274). But the approach is
parallel to the restraint shown by the Permanent Court of International Justice in the
extract from the Serbian and Brazilian Loans cases cited at the outset of this chapter. It
may also be seen as similar to the rule of forum non conveniens in private international
law whereby courts abdicate in favour of domestic courts of another State. The ideal
solution would of course be for the International Court of Justice to be given a
50 [1982] AC 888; 64 ILR 273 and 33l.
51 [1998] 3 WLR 1456 at 1495.
.52 [1999] 2 All ~R 97. ~ee, on the question of act of State, Denza, 1999. See also R (Campaign for Nuclear
Dzsarmament) v Pnme Ml11ister of the United Kingdom and others, Judgment of 17 December 2002, Times Law
Reports 27.12.2002.
THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 439
jurisdiction similar to that enjoyed by the European Court of Justice to determine
questions of international law referred to it by national courts and thus to ensure the
uniform development and application of the law.
VI. CONCLUSION: ELEMENTS OF A
HAPPY RELATIONSHIP
Several of the constitutional provisions described earlier in this chapter have been
revised in recent years in order more effectively to integrate international law into
the national legal order. There has been a degree of cross-fertilization in attempts
to remedy perceived weaknesses. One example not so far mentioned is the United
Kingdom Human Rights Act 1998 which, without cutting across fundamental·
principles of parliamentary sovereignty, provided that 'So far as it is possible to do
so, primary legislation and subordinate legislation must be read and given effect in a
way which is compatible with the [European] Convention rights'.53 This legislation
resulted from a perception that a better system of incorporating the European
Convention on Human Rights into United Kingdom law would result in more
effective enforcement of its provisions, and followed intensive study of systems of
entrenchment and incorporation in other legal systems. 54
It is however unrealistic to suggest that any degree of fundamental harmonization
of national constitutional provisions is practicable. So long as national constitutions
reflect the history and the identity of independent sovereign States, and so long as
international law itself remains in general non-intrusive as to how it is applied and
enforced at national level, there will be infinite variety in national systems.
It is difficult even to suggest criteria on which a 'scoreboard' of impressive and
failing performers could be drawn up by a panel of objective assessors. If, for example,
the criterion is the production of judgments on general questions of international law
which carry weight in other jurisdictions, one would rate Germany at the highest
leveL The laconic judgments of French courts, however correct, lack wider appeal
because there is so little evidence of the legal reasoning behind them. Judgments
of the UK House of Lords and the US Supreme Court on key questions probably
carry less weight abroad because the courts have so often been openly divided on
fundamental questions-Breard, Alvarez-Machain, Pinochet, to name only three
which have been discussed above. It would be superficial to imply tha('a different
constitutional approach would necessarily have led to more persuasive judgments
in these cases. Adverse judgments from international tribunals might be a kind of
index-and for the UK this was undoubtedly a factor in changing through the
Human Rights Act its system of enforcing the European Convention on Human
53 c. 42, s. 3(1).
54 See, eg 'Human Rights Legislation', University College London Constitution Unit, 1996. For the history
of the Act see Lester, 2000.
 THE RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW 441
440 EILEEN DENZA

HIGGINS, R (1991-V), 'International Law Nuclear Weapons in Scottish Courts',

Rights in its domestic legal order. But an objective assessment on this count would
and the Avoidance, Containment and 51 ICLQ 17l.
also need to take in readiness to accept exposure to international assessment. The
Resolution of Disputes, Recueil des Cours OWEN, K (1997), Concorde and the
UK accepted the right of individual petition under the European Convention at a
273-274. Americans (Shrewsbury: Airlife Pub-
relatively early stage and is now the only Permanent Member of the Security Council
JACKSON, J (1987) in Jacobs and Roberts lishing).
to accept the compulsory jurisdiction of the International Court of Justice.
(eds), p 14l. RIESENFELD, S and ABBOTT, F (eds) (1994),
In the absence of any identification of the ideal relationship between international
JACOBS, F and ROBERTS, S (eds) (1987), Parliamentary Participation in the Making
law and national law, or any way of assessing the alternatives, five factors will be
and Operation of Treaties (The Hague:
proposed as generally conducive to the avoidance of conflict. They are: The Effect of Treaties in Domestic Law
(London: Sweet & Maxwell). NijhofflKluwer).
(1) close involvement in the treaty-making process of lawyers with knowledge SCHERMERS, H (1987), in Jacobs and
JOWELL, J and OLIVER, D (eds) (2000), The
both of their own legal systems and of international law-in particular the Roberts (eds),p 109.
Changing Constitution, 4th edn (Oxford:
fundamental norms of each; Oxford University Press). SCHWARZE, J (1994), 'La ratification du traite
(2) close attention to questions of national implementation during the treaty- KELSEN, H (1920), Das Problem der de Maastricht en Allemagne, l'arret de
making process and before ratification; Souveranitat und die Theorie des la Cour constitutionnelle de Karlsruhe',
Volkerrechts-Beitrag zu einer reinen 1994 Revue du Marchi Commun 293.
(3) detailed parliamentary scrutiny of treaties before signature wherever possible
or at least before national ratification; Rechtslehre (Tubingen: JC Mohr). __ (1995), 'Tow?Ids a Common
LEIGH, M and BLAKESLEE, MR (eds) (1995), European Public Law', 1995 European
(4) teaching of international law as a compulsory element of a law degree and of
National Treaty Law and Practice, vol 1, Public Law 227.
professional training; and
(Washington, DC: ASIL). __ (ed) (2001), The Birth of a European
., (5) involvement of specialist international lawyers as counsel and as amici curiae
_ _ _ _ and EDERINGTON, LB (eds) Constitutional Order (Baden-Baden:
" whenever difficult questions of international law arise during litigation in Nomos).
." ' national courts .
(1999), National Treaty Law and Practice,
TREVIRANUS, H and BEEMELMANS, H
vol 2 (Washington, DC: ASIL).
Some of these elements go to what Judge Rosalyn Higgins has described as 'the reality (1995) in Leigh and Blakeslee (eds), p 5.
LESTER, A (2000), 'Human Rights and the
of legal culture' (Higgins, 1991, pp 266-268). All of them call for an openness to British Constitution', in Jowell and Oliver VAN DIJK, P and TAHZIB, BG, in Reisenfeld
international law, including its imperfections, its uncertainties and its rapid shifts. (eds), ch 4. and Abbot (eds), p 109.
The motto for national lawmakers and judges might well be 'only connect'. MENNECKE, M and TAMS, C (2002), 'The VAN PANHUYS, JHF (1953), 'The Nether-
LaGrand Case', 51 ICLQ 449. lands Constitution and International
NEFF, S (2002), 'International Law and Law', 47 AJIL 537.
REFERENCES

AUST, A (2000), Modern Treaty Law and - - (1999), 'Implementation of Inter-

Practice (Cambridge: Cambridge Univer-
sity Press).
BUTLER, W (1997), The Russian Law of
Treaties (London: Simmonds and Hill).
COLLINS, L (2002), 'Foreign Relations and
the Judiciary', 51 ICLQ 485.
CRAIG, P and DE BURCA, G (2002), EU Law:
Text, Cases and Materials, 3rd edn
(Oxford: Oxford University Press).
DANILENKO, G (1994), 'The New Russian
Constitution and International Law', 88
AJIL451
national Law in CIS States: Theory and
Practice', 10 BJIL 5l.
DE LA ROCHERE, D (1987), in Jacobs and
AUST, A (2000), Modern Treaty Law and
Roberts, p 39.
DENZA, E (1998), Diplomatic Law, 2nd edn
(Oxford: Oxford University Press).
- - (1999), 'Ex parte Pinochet: Lacuna or
Leap?', 48 ICLQ 687.
EISEMANN, P-M (1995), in Leigh and
Blakeslee, p 1.
FAVOREU, L (1985), XXXI Annuaire Franfais
de Droit International 868.
FURTHER READING
CONFORTI, B (1993), Internatio~al Law
and the Role of Domestic Legal· Systems
Practice (Cambridge, Cambridge Uni-
(The Hague: Nijhoff/Kluwer). Wide-
versity Press), ch 10, 'Treaties and
ranging account covering international
Domestic Law'. A clear introduction.
law-making as well as national
CASSESE, A (2001), International Law implementation.
(Oxford: Oxford University Press), ch 8,
GARDINER, RK (forthcoming, 2003), Inter-
'Implementation of International Rules
within National Systems'. An up-to-date, national Law (Harlow: Longman), ch 4,
'International Law and National Laws'.
thorough account of theory and practice
This focuses particularly on the US and
in a large number of States.
442 EILEEN DENZA

UK and on approaches to treaty TON, LB (eds) (1999), National Treaty

interpretation.
JACOBS, F and ROBERTS, S (eds) (1987), The
Effect of Treaties in Domestic Law (Lon-
don: Sweet & Maxwell). An excellent
comparative study, though on some
points now overtaken.
Law and Practice (Washington, DC:
ASIL). The most up-to-date and extensive
comparativesurve~
PART V
RrESENFELD, S and ABBOTT, F (eds) (1994),
Parliamentary Participation in the Making

LEIGH, M, BLAKESLEE, MP, and EDERING-

and Operation of Treaties (The Hague:
Nijhoff/Kluwer) .
RESPONSIBILITY

\
 14
THE NATURE AND FORMS
OF INTERNATIONAL
RESPONSIBILITY
James Crawford and Simon Olleson

SUM MARY

On the international plane, responsibility is the necessary corollary of obligation: every

breach by a subject of international law of its international obligations entails its inter-
national responsibility. The chapter starts by discussing the scope of international liability,
before examining the general character of State responsibility. Due to the historical
primacy of states in the international legal system, the law of State responsibility is the
most fully-developed branch of responsibility, and therefore is the principal focus of the
chapter. Conversely, the responsibility of international organizations is extremely under-
developed, and is therefore considered only in passing, as is the potential responsibility
under international law of other international actors.
The law of State responsibility enunciates the consequences of a breach by a State of an
international obligation, and regulates the permissible responses to such breaches; the
central portion of the chapter discusses the constituent elements of State responsibility
of attribution and breach, as well as the possible excuses and justifications which, if
present, will preclude the responsibility of a State which has not acted in conformity with
its obligations.
Attention then turns to the various secondary obligations which arise upon the commis-
sion of an internationally wrongful act by a State, and in particular the obligation to make \.
reparation in one form or another.
Finally, the chapter provides an introduction to the question of which States are entitled
to invoke breaches of international law, whether by simply demanding performance of the
secondary obligations that arise upon breach of an international obligation, or by taking
countermeasures.

JAMES CRAWFORD AND SIMON OLLESON
I. THE SCOPE OF INTERNATIONAL
RESPONSIBILITY: INTRODUCTION
AND OVERVIEW
Article 1 of the ILC's Articles on the Responsibility of States for Internationally
Wrongful Acts,1 adopted in 2001, provides: 'Every internationally wrongful act of a
State entails the international responsibility of that State'.2 Due to the historical
development of international law, its primary subjects are States. It is on States that
most obligations rest and on whom the burden of compliance principally lies. For
example, the human rights conventions, though they confer rights upon individuals,
impose obligations upon States. If other legal persons have obligations in the
field of human rights, it is only by derivation or analogy from the human
rights obligations that States have (see Clapham, 1993, and McCorquodale, above,
Chapter 9). State responsibility is· the paradigm form of responsibility on the
international plane.
But there can be international legal persons other than States, as the International
Court held in the Reparation for Injuries Advisory Opinion. 3 Being a subject of any
legal system must surely involve being subject to responsibilities as well as enjoying
rights. Thus it would seem unproblematic to substitute the words 'international
organization' or 'international legal person' for 'State' in Article 1 of the ILC Articles;
that basic statement of principle would seem equally applicable by definition to all
international legal persons.
In relation to international organizations, at least, a corollary of their undoubted
capacity to enter into treaties with States or with other international organizations
is that they are responsible for breaches of the obligations thereby undertaken; this
follows from the principle pacta sunt servanda with respect to such treaties. 4 The
same is intuitively true for breaches of applicable general international law. The
potential responsibility of international organizations under general international
law was affirmed by the International Court of Justice in the Cumaraswamy
J Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the LLC on
10 August 2001: Report of the International Law Commission, Fifty-third Session, A/56110, Chapter Iv. The
General Assembly took note of them, recommended them to the attention of governments, and annexed
them to GA Res 56/83 (10 December 2001). The Articles and the Commentaries are reproduced in Crawford,
2002 (the Articles at pp 61-73) and the Articles alone in Evans, 2002, pp 508-516. Subsequent references to
the Commentaries will be to Crawford's text.
2 See the often quoted dictum of the Permanent Court of International Justice in Factory at Chorzow,
jurisdiction, judgment No B, 1927, PClj, Ser A, No 9 at p 21: 'It is a principle of international law that the
breach of an engagement involves an obligation to make reparation'.
3 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICj Reports 1949,
p 174 atp 179.
4 See Vienna Convention on the Law of Treaties between States and International Organizations or
Between International Organizations (1986), Art 26; cfMorgenstern, 1986, pp 13-16,32-36, 115.
THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY 447
advisory opinion.s The difficulties are rather ones of implen:entatio~, since the
system of implementation (for example, the jurisdiction of rnterna~IOnal c~urts
and tribunals) has been developed by reference to States and not rnternatIOnal
organizations. 6 . •
The position so far as individuals, corporations, non-governmental organIzauons,
and other groups are concerned is far less clear: just as it is ~o~btful whether they
are in any meaningful sense 'subjects' of international law, so It IS doubtful whether
any general regime of responsibility has developed to ~o~~r them. .
In relation to individuals, international responsIbilIty has only developed rn
the criminal field, and then only in comparatively recent times. True, piracy has been
recognized as a 'crime against the law of nations' for cen:uries .. B~t it ~s ~e~er. to
see this as a jurisdictional rule allowing States to exerCIse. cn~rnal JunsdICt~o~
for pirate attacks on ships at sea rather than a rule confer~rng leg~ personahty
on pirates. 7 One does not acquire international legal personalIty by berng hanged at
the yardarm. . . ' ..
Since the Second World War real forms of individual crimrnal responsIbility under
international law have developed. First steps were taken with the establishment. of
the Nuremberg and Tokyo war crimes tribunals and the conclusion of the GenOCIde
Convention in the immediate post-war period; after the end of the Cold War there
followed in rapid succession the creation by Security Council resolution of the Inter-
national Criminal Tribunals for Yugoslavia (1992) and Rwanda (1994), and then ~e
adoption of the Rome Statute of the International Criminal Court (1998) whICh
entered into force on 1 July 2002. .
By contrast, so far there has been no development of corporate criminal responSI-
bility in international law. Under the two ad hoc Statutes a.nd the Rome Statute only
individual persons may be accused. The Security Council often addresses r~com­
mendations or demands to opposition, insurgent, or rebel groups-.but WIt~out
implying that these have separate personality in inter~a:ionallaw. Any rnterna:IOnal
responsibility of members of such groups is probably lImIted to breaches of appl~cable
international humanitarian law or even of national law, rather than general rnter-
national law. If rebel groups succeed in becoming the government of ~e State
(whether of the State against which they are fighting or of a new State whl~h they
succeed in creating), that State may be responsible for their acts (ARSIWA, ArUcl~ I?;
Commentary, Crawford, 2002, pp 116-120). But if they fail, their opponent State IS rn
S Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human
Rights, Advisory Opinion, ICj Reports 1999, p 62, para 66. . '
6 Thus the EU, which is not a State, has had to be specifically prOVIded for m order to be a party to
. din d th 1982 UN Convention on the Law of the Sea (see Art 305 and Annex IX)
contentlOus procee gs un er e
and under the WTO dispute settlement mechanism. See generally Wellens, 2002; Klabbers, 2002.
7 See the Separate Opinion of Judge Moore in 'Lotus', judgment No 9, 1927, ~CIJ, Ser A, No 1~ ~t
P 70; United Nations Convention on the Law of the Sea 1982, Articles 101-107; Rubm, 1998; OppenheIm s
International Law, 1992, vol 1, pp 746--755.
 JAMES CRAWFORD AND SIMON OLLESON THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY 449

principle not responsible, and any possibility of collective or corporate responsibility

for their acts fails with them.
II. STATE RESPONSIBILITY: ISSUES OF
It is also very doubtful whether <multi-national corporations' are subjects of
international law for the purposes of responsibility, although steps are being taken
CLASSIFICATION AND CHARACTERIZATION
to develop voluntary adherence to human rights and other norms by cor-
8 The category <State responsibility' covers the field of the responsibility of States for
porations. From a legal point of view, the so-called multinational corporation
internationally wrongful conduct. It amounts, in other words, to a general law of
is better regarded as a group of corporations, each created under and amenable
wrongs. But of course, what is a breae::h of international law by a State depends on
to its own national law as well as to any other national legal system within which
it operates. what its international obligations are, and especially as far as treaties are concerned,
these vary from one State to the next. There are a few treaties (especially the United
Thus although Article 58 reserves in general terms the possibility of <individual
Nations Charter) to which virtually every State is a party; otherwise each State has
responsibility under international law of any person acting on behalf of a State',
its own range of bilateral and multilateral treaty obligations. Even under general
a reservation which is not limited to criminal responsibility, so far there has been
international law, which might be expected to be virtually uniform for every State,
virtually no development in practice of civil responsibility of individuals or
different States may be differently situated and may have different responsibilities-
corporations for breaches of international law. Only the United States has legislation
for example, upstream States rather than downstream States on an international ri:-er,
dealing (in a very uneven way) with this issue. 9 AB the dissenting judges in the
Arrest Warrant case pointed out, this may be seen as 'the beginnings of a very capital importing and capital exporting States in respect of the treatment o~ forel.gn
investment, or States on whose territory a civil war is raging. as compared WIth third
broad form of extraterritorial jurisdiction'lO in civil matters. They further commented
parties to the conflict. There is no such thing as a uniform code of international law,
that although <this unilateral exercise of the function of guardian of international
reflecting the obligations of all States.
values has been much commented on, it has not attracted the approbation of
States generally'.ll On the other hand, the underlying concepts of State responsibility-attribution,
breach, excuses, consequences-seem to be general in character. Particular treaties or
The development of international criminal law is considered in Chapter 23 of
rules may vary these underlying concepts in particular respects, otherwise they are
this book. In this chapter we examine the foundational rules of State responsibility-
assumed and they apply unless excluded. 12 These background or standard assump-
in particular the bases for and consequences of the responsibility of a State for inter-
tions of responsibility on the basis of which specific obligations of States exist and
nationally wrongful acts. Questions of the implementation of such responsibility
are applied are set out in the ILC's Articles on the Responsibility of States for Inter-
by an injured State or by other interested parties, as well as questions of possible
nationally Wrongful Acts (2001). The Articles are the product of more than forty
responses (retorsion, countermeasures, or sanctions) are discussed in the following
two chapters. years' work by the ILC on the topic, and in common with other ILC texts they
involve both codification and progressive development (Crawford, 2002, pp 1-60;
Symposium, 2002, 96 AJIL pp 773-890). They are the focus of what follows.

8 See, eg the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social
A. RESPONSIBILITY UNDER INTERNATIONAL OR NATIONAL LAW?
Policy 1977 (adopted by the Governing Body at its 204th Session), 17 ILM 416; the OECD's 'Guidelines for
Multinational Enterprises' (2000),40 ILM 237; and the 'Nine Principles' of the UN Global Compact Initiative Evidently State responsibility can only be engaged for breaches of international law,
(2000) (relating to human rights, labour standards, and the environment). On the problems of establishing
international responsibility of corporations, see Ratner, 200l. ie for conduct which is internationally wrongful because it involves some violation
9 Private parties (US or foreign) can be sued for torts occasioned 'in violation of the law of nations' of an international obligation applicable to and binding on the State. A dispute
anywhere committed against aliens, under the unusual jurisdiction created by the Alien Tort Claims Act (28 between two States concerning the breach of an international obligation, whether
USC §1350). The US cases distinguish between corporate complicity with governmental violations ofhurnan
rights, and those violations (eg genocide, slavery) which do not require any governmental involvement or
customary or deriving from treaty, concerns international responsibility, and ~is
State action. See, eg Kadicv Karadiic, 70 F3d 232 (1995); 104 ILR 135 (Court of Appeals, 2nd). Cf also the will be true whether the remedy sought is reparation for a past breach, or cessatIon
Torture Victims Protection Act 1992 (PL 102-256, 106 Stat 73), under which only designated 'rogue' States of the internationally wrongful conduct for the future. On the other hand, not all
can be defendants: the Act on its face contradicts the principle of universality on which it purports to be
based.
10 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and
12 ARSIWA, Article 55 (lex specialis). For examples of a lex specialis see, eg the provisi~ns of the WTO
Merits, Judgment, IC! Reports 2002, p 3, Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, Agreements excluding compensation for breach and focusing on cessation, and (perhaps) Arucle 41 (ex 50~ of
para 48.
11 Ibid.
the European Convention on Human Rights which appears to give States an option to pay compensauon
rather than providing restitution in kind.
450 JAMES CRAWFORD AND SIMON OLLESON
claims against a State involve international responsibility, even if international
law may be relevant to the case. For example, if a State is sued on a commercial
transaction in a national court, international law helps to determine what is the
extent of the defendant State's inImunity from jurisdiction and from measures
of enforcement, but the underlying claim will derive from the applicable law
of the contract. There is thus a distinction between State responsibility for breaches of
international law, and State liabpity for breaches of national law. One does not entail
the other. 13
Responsibility claims were traditionally brought directly between States at the
international level, or (much less often) before an international court or tribunal.
Both these avenues remain but there is now a further range of possibilities. For
example in some cases individuals or corporations are given access to international
tribunals and can bring State responsibility claims in their own right, eg for
breach of the European Convention on Human Rights before the European Court
of Human Rights, or for breach of a bilateral investment treaty before an arbitral
tribunal established under the treaty. Whether such international claims could also be
enforced in national courts depends on the approach of the national legal system to
international law in general (see Denza, above, Chapter 13) as well as on the rules of
State immunity (see Fox, above, Chapter 11). In certain circumstances it is possible for
responsibility claims to be 'domesticated', and the principles of subsidiarity and com-
plementarity indicate an increasing role for national courts in the implementation
and enforcement of international law. But the interaction between rules of jurisdic-
tion and immunity and the relation between national and international law make this
a complex area. For the sake of simplicity, this chapter will be confined to claims of
State responsibility brought at the international level.
B. THE TYPOLOGY OF STATE RESPONSIBILITY
National legal systems often distinguish types or degrees of liability according to the
source of the obligation breached-for example, crime, contract, tort, or delict. 14
In international law it appears that there is no general distinction of this kind. As the
arbitral tribunal said in the Rainbow Warrior case:
the general principles of International Law concerning State responsibility are equally
applicable in the case of breach of treaty obligation, since in the international law
field there is no distinction between contractual and tortious responsibility, so
13 ARSIWA, Articles 1, 3,27; Elettronica Sicula SpA (ELSI), Judgment, IC! Reports 1989, pIS, paras 73 and
124. See also Compania de Aguas del Aconquija and Vivendi Universal v Argentine Republic (ICSID Case
No ARB/97/3), Decision on Annulment, 3 July 2002, 41 ILM 1135, paras 93-103.
14 Cf the division of sources of obligation in Roman law into contract, delict, and quasi-contract/unjust
enrichment: D.l.1.1O.1 (Ulpian): 'Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suuro cuique
tribuere' ('the principles oflaw are these: to live honourably, not to harm any other person, and to render to
each his own').
THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILIT.Y 451
that any violation of a State of any obligation, of whatever origin gives rise to State
responsibilityY
To this extent the rules of State responsibility form a single system, without any
precise comparator in national legal systems. The reason is that internati~nallaw has
to address a very wide range of needs on the basis of rather fe~ ba~Ic tool~ and
techniques. For example, treaties perform a wide range of funCTIons m the mter-
national system-from establishing institutions in the public interest and rules of
an essentially legislative character to making specific contract.u~ a~rangements
between two States. Unlike natio)lallaw, there is no categorical dIstmctIOn between
the legislative and the contractual. .
The Tribunal in the Rainbow Warrior- 6 arbitration and the InternatIOnal Court
in the GabCikovo-Nagymaros Projed 7 case both held that in a case involving the
breach of a treaty obligation, the general defences available under the law of.State
responsibility coexist with the rules of treaty law, lai~ down in ~e 1969 VIenna
Convention on the Law of Treaties. But they perform a different functIOn. The rules of
treaty law determine when a treaty obligation is in force for a State an~ what it means,
ie, how it is to be interpreted. The rules of State responsibility determu:e what are the
legal consequences of its breach in terms of such matters as reparatIOn. Of course
there is some overlap between the two but they are legally and logically distinct.
A State faced with a material breach of a treaty obligation can choose to suspend
or terminate the treaty in accordance with the applicable rules of treaty law, th~s
releasing itself from its obligation to perform its obligations. under the tre~ty. m
the future (VCLT, Article 60). But doing so does not prevent It also from clrummg
reparation for the breach. 18 • • ,.. ,
In addition, national legal systems also characteristically distmgUl~h CIvil from
'criminal' responsibility, although the relations between the two ~Iffer m~rkedly
between various systems. By contrast there is little or no State practIce allowm~ for
'punitive' or 'penal' consequences of breaches of inte~nationallaw. In .1976, Ch~ean
agents killed a former Chilean minister, Orlando Letelier, and one of hIS companIOns
by a car bomb in Washington, DC. The United States courts subsequently awarded
both compensatory and punitive damages for the deaths, acting under the local torts
15 Rainbow Warrior (France/New Zealand), (1990) 20 RIAA 217, para 75; for the argum~nts of the parties,
'b'd 72-74 See also the ICJ in GabCikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ
see 1 1 ,paras . . . all ful
Reports 1997, p 7, paras 46--48, especially para 47: 'when a State has committed an mt~rn~tlo~ y wr~ng
act, its international responsibility is likely to be involved whatever the nat~re of th~ obhgatl?n I.t has failed to
, .. h t . ARSrw:· A Article 12' 'There is a breach of an mternatIonal oblIgatIOn by a State
respect, cItmg w a IS now n , ' .. dl.f" .
when an act of that State is not in conformity with what is required of it by that obligatIOn, rega~ ess OJ Its
origin or charadei' (emphasis added).
16 Rainbow Warrior (France/New Zealand), (1990) 20 RIAA 217, para 75.
17 Gabcikovo-Nagymaros Projed (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, paras 46--48.
18 In other words a State can terminate a treaty for breach while claiming damages for breaches that have
already occurred: see VCLT, Articles 70(l)(b), n(l)(b), 73.
45 2 JAMES CRAWFORD AND SIMON OLLESON
exception of the Foreign State Immunity Act. 19 But the local judgment was practically
unenforceable. 20 Subsequently, as part of the restoration of relations between the
United States and Chile following the latter's return to democracy; it was agreed that
a bilateral commission would determine the amount of compensation payable as an
ex gratia settlement without admission of liability. Under the terms of reference of
the Commission, the damages were to be assessed 'in accordance with applicable
principles of international law, as though liability were established'. 21 The Com-
mission awarded sums only on a compensatory basis for loss of income and moral
damage; the separate opinion of the Chilean member of the Commission made clear
that punitive damages were not accepted in international law. 22
The ILC Draft Articles as adopted on first reading in 1996 sought to introduce the
notion of 'international crimes' of States. 23 It was not envisaged that States could be
fined or otherwise punished-no State has ever been accused of a criminal offence
before an international court, even where the conduct was criminal in character,
eg aggression or genocide (see, eg Abi-Saab, 1999, p 339; de Hoogh, 1996; J0rgensen,
2000; Pellet, 2001). However certain limited consequences were attached to the con-
cept. For instance, in the case of State crimes, all other States were to be regarded as
injured, and could thus invoke responsibility. But none of these consequences could
properly be characterized as 'penal'. The notion caused a great amount of controversy,
and deep differences of opinion within the Commission. In 1998, the concept of
'international crimes of States' was set aside, contributing to the unopposed adoption
of the ILC Articles in 2001. Again the episode suggests that State responsibility is an
undifferentiated regime, which does not embody such domestic classifications as
'civil' and 'criminal'.
But this does not prevent international law responding to different kinds of
breaches and their different impacts on other States, on people and on international
order. First, individual State officials have no impunity if they commit crimes against
international law, even if they may not have been acting for their own individual ends
but in the interest or perceived interest ofthe State. 24 Secondly, the ILC Articles make
special provision for the consequences of certain serious breaches of peremptory
19 See Letelier etaL v The Republic ofChile etaL; see 488 ESupp 665 (1980); 19 ILM 409; 63 ILR378 (District
Court, DC) for the decision on State immunity, and see 502 ESupp 259 (1980); 19 ILM 1418; 88 ILR 747
(District Court, DC) for the decision as to quantum; the Court awarded the plaintiffs approximately $5
million, of which $2 million were punitive damages.
20 The Court of Appeals for the 2nd Circuit, reversing the District Court, refused to allow enforcement
against the Chilean national airline: 748 E2d 790 (1984); the Supreme Court denied certiorari: 471 US 1125
(1985).
21 Re Letelier and Moffitt (1992), 88 ILR 727 at 731.
22 Ibid, P 741. The resulting award was paid to the victim's heirs on condition that they waived their rights
under the domestic judgment.
23 For the text of former Article 19 see Crawford, 2002, pp 352-353.
24 At the international level see the Statute of the ICTY, Article 7(2), (4); the Statute of the ICTR, Article
6(2), (4); Rome Statute of the ICC, Articles 27, 33. At the national level see R v Bartle and the Commissioner of
Police for the Metropolis, ex parte Pinochet Ugarte (No 3) (Pinochet III); [2001] 1 AC 147. The ICJ has held,
however, that serving foreign ministers (and by implication, serving heads of State and other senior ministers)
THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY 453
norms of general international law (jus cogens). A breach is serious if it involves
a 'gross or systematic failure by the responsible State to fulfil' such an obligation
(Article 40(2). The major consequence of such a breach are the obligation on all .
other States to refrain from recognizing as lawful the situation thereby created or
from rendering aid or assistance in maintaining it (Article 41(2). In addition, States
must cooperate to bring the serious breach to an end 'through any lawful means'.
The principal avenues for such cooperation are through the various international
organizations, in particular the Security Council, whose powers to take measures to
restore international peace and security substantially overlap with these provisions
(Koskenniemi, 2001). But they are not the only ones, since the possibility remains
of individual action seeking remedies against States responsible for such serious
breaches as genocide, war crimes, or denial of fundamental human rights. 25
III. THE ELEMENTS OF STATE RESPONSIBILITY
As already noted, the international responsibility of a State arises from the commis-
sion of an internationally wrongful act. An internationally wrongful act presupposes
that there is conduct consisting of an action or omission that (a) is attributable to a
State under international law; and (b) constitutes a breach of the international obliga-
tions of the State (ARSIWA, Article 2). In principle, the fulfilment of these conditions
is a sufficient basis for international responsibility, as has been consistently affirmed
by international courts and tribunals. 26 In some cases, however, the respondent State
may claim that it is justified in its non-performance, for example, because it was
acting in self-defence or in a situation of force majeure. In international law such
defences or excuses are termed 'circumstances precluding wrongfulness'. They will be
while in office are inviolable and have absolute jurisdictional immunity from prosecution in national courts
of other states: Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary
Objections and Merits, Judgment, ICJ Reports 2002, p 3, paras 51-61. The Court protested that this immunity
did not involve impunity, inter alia because of the possibility of prosecution at the international level, or
prosecution by the national State. The jurisdictional immunity apparently lasts only so long as the individual
holds office: however, cf ibid, paras 60-61, and compare with the Separate Opinion of Judges Higgins,
Kooijmans, and Buergenthal, ibid, para 89.
25 For instance States may adopt measures which are not inconsistent with their international obligations
(retorsion). In addition, a right may exist allowing States which themselves are not injured to take counter-
measures in the case of breach of certain types of obligation. See, for instance, the catalogue of State practice
discussed in the commentary to ARSIWA, Article 54, which may be evidence of such a customary
international rule. The ILC left the question open in Article 54 for future development.
26 See, eg the Permanent Court of International Justice in Phosphates in Morocco, Preliminary Objections,
Judgment, PClf, Ser A/B, No 74, p 10; the International Court of Justice in United States Diplomatic and
Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, para 56; Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v United States ofAmerica), Merits, Judgment, ICJ Reports 1986, p 14, para 226,
and GabCikovo-Nagymaros Project (Hungary/Slovakia), Judgment, IC] Reports 1997, p 7, para 78. See also the
Mexico-United States General Claims Commission in Dickson Car Wheel Company (1931) 4 RIAA 669, 678.
454 JAMES CRAWFORD AND SIMON OLLESON
a matter for the respondent State to assert and prove, not for the claimant State to
negative.
The three elements-attribution, breach, and the absence of any valid justification
for non-performance-will be discussed in turn before we consider the consequences
of State responsibility, in particular for the injured State or States.
A. ATTRIBUTION OF CONDUCT TO THE STATE
Although they seem real enough to their citizens, States are juridical abstractions. Like
corporations in national law, they necessarily act through organs or agents. The rules
of attribution specify the actors whose conduct may engage the responsibility of the
State, generally or in specific circumstances. It should be stressed that the issue here is
one of responsibility for conduct allegedly in breach of existing international obliga-
tions of the State. It does not concern the question which officials can enter into those
obligations in the first place. Only senior officials of the State (the head of State or
government, the minister of foreign affairs, and diplomats in certain circumstances:
see VCLT Article 7) have inherent authority to bind the State; other officials act upon
the basis of express or ostensible authority (VCLT Article 46).27 By contrast, any State
official, even at a local or municipal level, may commit an internationally wrongful
act attributable to the State- the local constabulary or army torturing a prisoner or
causing an enforced disappearance,28 for example, or the local mayor requisitioning a
factory.29
A clear example of attribution of conduct performed by State agents vis-a.-vis
another State was the sinking on 10 July 1985 of the Greenpeace ship Rainbow
Warrior in Auddand harbour. The French Government subsequently admitted that
the explosives had been planted on the ship by agents of the Directorate General of
External Security, acting on orders received. New Zealand sought and received an
apology and compensation for the violation of its sovereignty. 3D This was quite separ-
ate from the damage done to Greenpeace, a non-governmental organization, and to
the Dutch national who was killed by the explosion; separate arrangements were
made to provide compensation for these interests.
On the other hand, a State does not normally guarantee the safety of foreign
nationals on its territory or the security of their property or the success of their
27 See also Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and
Admissibility, ICJ Reports 1994, p 112, paras 26-27; Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v Nigeria), Equatorial Guinea Intervening, Merits, Judgment, ICJ Reports 2002, not yet
reported, paras 264-268.
28 See, eg Velasquez Rodriguez v Honduras, Merits, Inter-AmCtHR, Ser C, No 4 (1989); 95 ILR 259,
para 183 ('not all levels of the Government of Honduras were necessarily aware of those acts, nor is there any
evidence that such acts were the result of official orders. Nevertheless, those circumstances are irrelevant
for the purposes of establishing whether Honduras is responsible under international law'). See also ibid, 296,
para 170.
29 Elettronica Sicula SpA (ELSI), Judgment, IC] Reports 1989, pIS.
3D Rainbow Warrior (No 1) (1986),74 ILR 256.
THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY 455
investments. In terms of any injury suffered, there has to be some involvement by
the State itself-in effect, by the government of the State, in the conduct which is
complained of. A State will generally only be liable for the conduct of its organs or
officials, acting as such (ARSIWA, Article 4, Commentary, Crawford, 2002, pp 94-99).
Purely private acts will not engage the State's responsibility, although the State may
in certain circumstances be liable for its failure to prevent those acts, or to take action
to punish the individuals responsible. 31 On the other hand, the scope of State
responsibility for official acts is broad, and the definition of (organ' for this purpose
comprehensive and inclusive. There is no distinction based on the level of seniority of
the relevant officials in the State hierarchy; as long as they are acting in their official
capacity, responsibility is engaged. In addition, there is no .limitation to the central
executive; responsibility may be engaged for acts of provincial or even local govern-
ment officials. Further, the classification of powers is also irrelevant: in principle,
the concept of. (organ' covers legislatures, executive officials and courts at all levels
(ARSIWA, Article 4).32
Acts or omissions of any organ or official are attributable to the State provided they
were acting in that capacity at the time, even if they may have been acting ultra vires. 33
Indeed, the State may be responsible for conduct which is clearly in excess of authority
if the official has used an official position. For example, in the Caire case, a French
national in Mexico was shot and killed by members of the Mexican army after he had
refused their demands for money. The tribunal held that, for the ultra vires acts of
officials to be attributable to the State, (they must have acted at least to all appearances
as competent officials or organs, or they must have used powers or methods appro-
priate to their official capacity'.34 In the circumstances the responsibility of the State
was engaged (in view of the fact that they acted in their capacity of officers and used
the means placed at their disposition by virtue of that capacity'. Similarly, in Youmans,
United States citizens cornered in a house by a mob were killed after soldiers sent
to disperse the crowd, contrary to orders, opened fire on the house, forcing the
inhabitants out into the open. The Tribunal held that there was State responsibility
given that (at the time of the commission of these acts the men were on duty under
the immediate supervision and in the presence of a commanding officer'. The
Tribunal went on to comment that:
Soldiers inflicting personal injuries or committing wanton destruction or looting always act
in disobedience of some rules laid down by superior authority. There could be no liability
whatever for such misdeeds if the view were taken that any acts committed by soldier in
contravention of instructions must always be considered as personal acts.35
31 Janes (USv Mexico) (1926) 4 RIAA 82; cf Noyes (US v Panama) (1933) 6 RIAA 308.
32 ARSIWA, Article 4. See also LaGrand (Germanyv United States ofAmerica), Provisional Measures, Order
of3 March 1999, ICJ Reports 1999, p 9, para 28: 'Whereas the international responsibility of a State is engaged
by the action of the competent organs and authorities acting in that State, whatever they may be'.
33 Union Bridge Company Claim (USA v Great Britain) (1924) 6 RIAA l38.
34 Caire case (1929) 5 RIAA 516 at p 530.
35 Youmans case (1926) 4 RIAA 110; (1927) 21 AJIL 571, para 14.
 JAMES CRAWFORD AND SIMON OLLESON
By contrast, a State is not responsible for the acts of mobs or of private individuals as
such. Their conduct will only be attributable to the State if they were in fact acting
under the authority or control of the State (ARSIWA, Article 9), or if the State adopts
(or in common law terminology 'ratifies') their acts as its own (ARSIWA, Article 11).
In the Tehran Hostages case, the International Court held that although initially the
students who took control of the US embassy in Tehran were not acting as agents
of Iran, a subsequent decree of Ayatollah Khomeini endorsing the occupation of the
embassy:
translated continuing occupation of the Embassy and detention of the hostages into acts of
[Iran]. The militants, authors of the invasion and jailers of the hostages, had now become
agents of the Iranian State for whose acts the State itself was internationally responsible. 36
Similarly, the State will be responsible if the authorities act in collusion with the mob,
or participate in the mob violence. However, international tribunals generally require
strong evidence of such collusion. 37
In addition, conduct which is not attributable to a State because it was not carried
out by its organs or agents may nonetheless be chargeable to the State because it failed
in some obligation to prevent the conduct. For instance, in the Tehran Hostages
case, Iran was held to have breached its special obligation of protection of the embassy
and consular premises and personnel, even prior to its adoption of the acts of the
occupying students. 38 The duty to control a mob is particularly important when the
mob is in some way under the control of the authorities. 39
Like other systems of law, international law does not limit attribution to the
conduct of the regular officials or organs of the State; it also extends to conduct
carried out by others who are authorized to act by the State or who at least act under
. actual direction or control. For instance, in the Nicaragua case, the International
Court stated that:
For this conduct [of the contra rebels] to give rise to legal responsibility of the United States,
it would in principle have to be proved that that State had effective control of the military or
paramilitary operations in the course of which the alleged violations were committed.40
It is true that this standard was criticized by the majority of the Appeals Chamber of
the ICTY in the Tadic case, who preferred a threshold of' overall control going beyond
the mere financing and equipping of such forces and involving also participation in
the planning and supervision of military operations'.4I But the question in that case
was not one of State responsibility. The Chamber was concerned to determine
36 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, paras 73-74.
37 Janes case (1926) 4 RlAA 82.
38 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, para 63.
39 See, eg The Zajiro (1925) 6 RIAA 160.
40 Military and Paramilitary Activities in and against Nicaragua, Merits, Judgment (Nicaragua v United
States ofAmerica), ICJ Reports 1986, p 14, para 115 (emphasis added).
41 Case No IT-94-1-A, Prosecutor v Tadic, Judgment of 15 July 1999, (1999) 38 ILM 1518, para 145
(emphasis added).
THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY 457
whether Bosnian Serb forces were under the control of the FRY with the result
that the armed conflict was to be considered as international in character, and that
therefore the more extensive rules of humanitarian law applicable in international
armed conflict applied. There was a quite different context: merely by accepting that
an armed conflict is internationalized, the State does not (and should not be required
to) accept responsibility for the acts of local militias engaged in the conflict. The
reasoning of the majority was cogently criticized by Judge Shahabuddeen in his Sep-
arate Opinion, who noted that the question-was not 'whether the FRY was responsible
for any breaches of international humanitarian law committed by the [Bosnian Serb
militia]' but the distinguishable question 'whether the FRY was using force through
the [militia] against [Bosnia-Herzegovina)'Y The ILC Articles adopt the somewhat
stricter test of the Nicaragua case. In accordance with Article 8, conduct of a person
or group of persons is attributable to the state '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' (ARSIWA, Article 8; Commentary, Crawford, 2002,
pp 110-113).
In each of these respects, the governing principle is that of independent responsi-
bility: the State is responsible for its own acts, ie for the acts of .its organs or agents,
and not for the acts of private parties, unless there are special circumstances warrant,--
ing attribution to it of such conduct. The same applies where one State is somehow
implicated in the conduct of a third State-indeed it applies a fortiori, since that third
State will ordinarily be responsible for its own acts in breach of its own international
responsibilities (ARSIWA, Article 16-19). But there is another side to the principle of
independent responsibility. A State cannot hide behind the involvement of other
States in common conduct. It is responsible if and to the extent that it contributed to
that conduct by its own acts. Thus in Nicaragua, the acts of the contras were not as
such attributable to the United States, but the United States was responsible for its
own conduct in training and financing the contras and in carrying out some specific
operations, including the mining of a Nicaraguan harbourY Likewise if a number of
States act together in administering a territory, each will be responsible for its own
conduct as part of the common enterprise.44
In another and rather special form of parallelism, the State will be responsible for
the conduct of an insurrectional movement which subsequently becomes the govern-
ment of that State (or, if they are a secessionary movement, of the new State they are
struggling to create). The rule is to some extent anomalous, since it determines the
42 Prosecutor v Tadic, Separate Opinion ofJudge Shahabuddeen, (1999) 38 ILM 1518, para 17.
43 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
Merits, Judgment, ICJ Reports 1986, p 14, in particular paras 75-80, 238, 242, 252, 292(3)-(6).
44 Cf Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, ICJ Reports 1992,
p 240 where the International Court left the question of possible apportionment of any compensation
between the other implicated States to the merits stage. See also the Legality of the Use of Force cases between
Yugoslavia and the NATO States (eg Yilgoslavia v Belgium, Provisional Measures, Order of 2 June 1999, ICJ
Reports 1999, p 124).
458 JAMES CRAWFORD AND SIMON OLLESON
attribution of conduct not by events at the time of that conduct but by reference to
later contingencies, ie the success or failure of the revolt or secession. But it is estab-
lished, and finds expression in Article 10 of the ILC Articles. For instance, in Yeager45
immediately after the revolution in Iran in 1979, the claimant had been detained for
several days by 'revolutionary guards' and had then been evacuated from the country.
The Tribunal held that, although the guards were not recognized under internal law as
part of the State apparatus, they were in fact exercising public functions in the absence
of the previous State apparatus: Iran was thus held responsible for their acts. 46
B. BREACH OF AN INTERNATIONAL OBLIGATION OF THE STATE
The second element of responsibility is breach of an international obligation of
the State. Here an initial distinction is drawn between State responsibility arising in
the context of direct State-to-State wrongdoing and State responsibility arising in the
context of diplomatic protection (injury to aliens or their property). This is so even
though the relevant obligations may be contained in a treaty, the breach of which in
principle engages direct State-to-State responsibility. The International Court was
careful to preserve the distinction in the ELSI case, where the United States sought to
base its action on breach of a bilateral treaty: nonetheless, the Chamber said, its claim
was in the nature of diplomatic protection and was thus subject to such requirements
as the exhaustion oflocal remediesY
Many of the problems which arise in the context of diplomatic protection
(nationality of claims, exhaustion of local remedies) do not arise in the context of
direct State-to-State disputes. The only issue in these direct State-to-State cases is
whether conduct attributable to State B causes legal harm to State A in violation of
international law. If so, responsibility is prima facie engaged.
On its face, the requirement that there should be a breach of an international
obligation of the State seems obvious enough. However, a number of questions arise:
for example, causation, the notion of injury, the time factor (rules concerning non-
retrospectivity of international law and acts continuing in time), and so on. An
important preliminary point should be made: international law is a distinct system,
separate from national legal systems. In its own terms it prevails over national law in
the event of conflict, and this irrespective of the approach taken by the national legal
system. Several consequences follow. First, a State cannot invoke its own municipal
law as a justification for refusal to comply with its international obligations, whether
under treaties or otherwise. 48 The fact that an act or omission is lawful (or unlawful)
45 Yeager (1987), 82 ILR 178.
46 Cf however Short (1987), 82 ILR 148 and Rankin (1987), 82 ILR 204 (decided on the basis that the
claimants had failed to prove that their departure was caused by actions attributable to Iran, rather than the
general turmoil accompanying the revolution).
47 Elettronica Sicula SpA (ELSI), Judgment, IC] Reports 1989, pIS.
48 Greco-Bulgarian 'Communities', Advisory Opinion, 1930, PCI], Ser B, No 17 at p 32; ARSIWA, Articles
3,32.
THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY 459
under national law does not prejudge the question of its lawfulness or otherwise
under international law. Secondly, the content of municipal law is a matter of fact for
internationallaw;49 in theory, the two live in distinct spheres, communicating via the
rules of evidence. Thirdly, a State cannot seek to invalidate the entry into force of
international obligations by reference to municipal law constraints which it failed to
observe. 5o
Of course conduct attributable to a State may consist of both actions and
omissions; breach of international obligations by omissions is relatively common.
For instance in the Tehran Hostages case, the International Court held that the
responsibility of Iran was due to the 'inaction' of its authorities which 'failed to take
appropriate steps' in circumstances where such steps were evidently called for. 51
1. Fault, injury, and damage
There has been a major debate about whether international law has a general
requirement of fault (Brownlie, 1983, pp 37-48). The debate is between those who
maintain that international law requires some fault on the part of the State if it is to
incur responsibility and supporters of so-called 'objective responsibility'. The case law
tends to support the objective school. Thus in Caire, the arbitral tribunal affirmed 'the
doctrine of the "objective responsibility" of the State, that is, the responsibility for the
acts of its officials or organs, which may devolve upon it despite the absence of any
"fa ute" on its part'. 52 However, there are statements going the other way. In the Corfu
Channel case, the International Court held that:
It is clear that knowledge of the minelaying cannot be imputed to the Albanian Government
by reason merely of the fact that a minefield discovered in Albanian territorial waters caused
the explosion of which the British warships were victims ... [I]t cannot be concluded from
the mere fact of the control exercised by a State over its territory and waters that that State
necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet
that it necessarily knew, or should have known, the authors. This fact, by itself and apart
from other circumstances, neither involves prima facie responsibility nor shifts the burden of
proof. 53
In that case Albania's responsibility was upheld on the basis that (according to the
evidence gathered, including by an expert commission) Albania must have known
49 Certain German Interests in Polish Upper Silesia, Merits, Judgment No 7, 1926, PCI], Ser A, No 7 at p 19.
50 Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, PCI], Ser NB, No 46, P 96 at p 170;
Legal Status of Eastern Greenland, Judgment, 1933, PCIJ, Ser NB, No 53, P 22 at p 71, and the dissenting
opinion of Judge Anzilotti, ibid, 91-92. In relation to the law of treaties, see Vienna Convention on the Law of
Treaties, Articles 27, 46.
51 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, paras 63, 67. See
also Velasquez Rodriguez, Inter-AmCtHR, Ser C, No 4 (1989); 95 ILR 259, para 170: 'under international law
a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions ... ';
Affaire relative a l'acquisition de la nationalite polonaise (1924) 1 RIAA 425.
52 Caire (1929) 5 R1AA 516 at p 529.
53 Corfu Channe~ Merits, Jugdment, ICJ Reports 1949, p 4 at p 18. See also the decision in Home Missionary
Society (1920) 6 R1AA 42.
 JAMES CRAWFORD AND SIMON OLLESON
that the mines had been recently laid and nonetheless failed to warn ships passing
through the strait of their presence.
When scholarly debate bogs down around some dichotomy such as 'responsibility
for fault'1' objective responsibility') something has almost always gone wrong. Here the
problem is one of level of analysis: there is neither a rule that responsibility is always
based on fault, nor one that it is always independent of it-indeed, there appears to be
no presumption either way. This is hardly surprising, in a legal system which has to
deal with a wide range of problems and disposes of a limited armoury of techniques.
But in any event circumstances alter cases, and it is illusory to seek for a single
dominant rule. Where responsibility is essentially based on acts of omission (as in
Corfu Ghannel) considerations of fault loom large. But if a State deliberately carries
out some specific act, there is less room for it to argue that the harmful consequences
were unintended and should be disregarded. Everything depends on the specific
context and on the content and interpretation of the obligation said to have been
breached.
Thus the ILC Articles endors~ a more nuanced view. Under Articles 2 and 12,
the international law of State responsibility does not require fault before an act or
omission may be characterized as internationally wrongful. However, the inter-
pretation of the relevant primary obligation in a given case may well lead to the
conclusion that fault is a necessary condition for responsibility in relation to that
obligation, having regard to the conduct alleged (ARSIWA, Articles 2 and 12;
Commentary, Crawford, 2002, pp 83-85, 125-130).
Similarly, there has been an intense debate concerning the role of harm or damage
in the law of State responsibility. Some authors (and some governments) have claimed
that the State must have suffered some form of actual harm or damage before
responsibility can be engaged (Bollecker-Stern, 1973). Once more, the ILC Articles
leave the question to be determined by the relevant primary obligation: there is no
general requirement of harm or damage before the consequences of responsibility
come into being. In some circumstances, the mere breach of an obligation will be
sufficient to give rise to responsibility; for instance, even a minor infringement of the
inviolability of an embassy or consular mission. On the other hand, in the context for
example of pollution of rivers, it is necessary to show some substantial impact on the
environment or on other uses of the watercourse before responsibility will arise. 54
A corollary of this position is that there may have been a breach of international law
but no material harm may have been suffered by another State or person in whose
interest the obligation was created. In such cases courts frequently award merely
declaratory relief on the ground that nothing more is required. 55 Here the main point
54 Thus the mere risk of future harm was not a sufficient basis for responsibility in the Lac Lanoux
Arbitration (1957),24 ILR 101. In GabCikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports
1997, p 7, preparations for the diversion of the Danube on the territory of a State did not involve a breach of
treaty until the diversion went ahead (and caused damage to the other State).
55 The 'I'm Alone' (1935) 3 RIAA 1609; Corfu Channel, Merits, Judgment, IC] Reports 1949, p 4 at pp 35-36.
THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY
of asserting responsibility may be for the future, to avoid repetition of the problem,
rather than to obtain compensation for the past.
2. Continuing wrongful acts and the time factor
The basic principle is that a State can only be internationally responsible for breach of
a treaty obligation if the obligation is in force for that State at the time of the alleged
breach. It is therefore necessary to examine closely at what point an obligation entered
into force, or at what point the obligation was terminated or ceased to bind the State.
For example in the Mondev case,56 a claim was brought by a Canadian company
alleging breach of the NAFTA Chapter 11 investment protection provisions by the
United States. The claimant alleged that by various actions of the Boston city author-
ities the value of the applicant's interests in building and development projects had
effectively been expropriated. But all of these actions· took place before NAFTA's
entry into force on 1 January 1994: the only later events were decisions of United
States courts denying Mondev's claims under United States law. The tribunal held
that NAFTA could not be applied retrospectively to actions prior to its entry into
force. This left open the possibility of a claim of denial of justice in respect of the
court decisions after NAFTA came into force, but the courts had not in any way acted
improperly, and thus there had been no denial of justice. The claim accordingly
failed.
The relevant principle is stated in Article 13 of the ILC Articles: 'An act of a State
does not constitute a breach of an international obligation unless the State is bound
by the obligation in question at the time the act occurs'. The principle is clear enough,
but its application may cause problems, in particular regarding changes in customary
international law obligations, when it will not 1?e clear precisely when· an old
customary rule was replaced by a new one. 57 For example, slavery was not always
unlawful under international law, yet claims are sometimes made for reparation for
persons or groups whose lives are said to have been affected by slavery and the slave
trade. 58
Another problem in applying Article 13 involves determining exactly when, or
during what period, a wrongful act occurs. Wrongful acts can continue over a period
of time-for instance the continued detention of diplomatic and consular personnel
in the Hostages case, or the forced or involuntary disappearance of a person contrary
to human rights norms. 59 Other wrongs may be instantaneous, even though their
effects may continue after the point of breach. For example, an unlawful killing or a law
expropriating property have effect at a specific time; the breach occurs at the moment
the victim is killed or the property passes, and this even though the effects of these
breaches may be enduring. In general such continuing consequences concern the
56 Mondev International Ltd v United States ofAmerica (Case No ARB(AF)/99/2), award ofl1 October 2002.
57 See, eg Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, IC] Reports 1974, p 3.
58 Le Louis (1817) 2 Dodson 210.
59 See, eg Blake v Guatemala, Inter-AmCtHR, Ser C, No 36 (1998), para 67.
 JAMES CRAWFORD AND SIMON OLLESON
scope of reparation, not whether there has been a breach in the first place (ARSIWA,
Article 14; Commentary, Crawford, 2002, pp 135-140).
These distinctions may also be significant when it comes to issues of the juris-
diction of courts in responsibility cases. For example under the European Convention
on Human Rights, claims can only be brought against a State party concerning
breaches occurring after the Convention entered into force for that State. But it
may be-depending on how one characterizes the conduct-that a breach which was
initially committed by a State before it became a party continues thereafter and to that
extent falls within the jurisdiction ratione temporis of the European Court of Human
Rights. For example, the circumstances of the Loizidou case went back to the Turkish
intervention in Cyprus in 1974, long before Turkey became a party to the European
Convention; but the continuing exclusion of Mrs Loizidou from access to her
property in the Turkish-controlled north continued after that date and could be dealt
with by the Court. 60
C. CIRCUMSTANCES PRECLUDING WRONGFULNESS: DEFENCES OR
EXCUSES FOR BREACHES OF INTERNATIONAL LAW
As noted above, although conduct may be clearly attributable to a State, and be clearly
inconsistent with its international obligations, it is possible that responsibility will not
follow. The State may be able to rely on some defence or excuse: in the ILC's Articles
these are collected under the heading of 'Circumstances precluding wrongfulness'
in Chapter V of Part One. Chapter V is essentially a catalogue or compilation of
rules that have been recognized by international law as justifying or excusing non-
compliance by a State with its international obligations, and it is not exclusive. 61 It
should be noted that none of the circumstances precluding wrongfulness can operate
to excuse conduct which violates a peremptory norm (ARSIWA, Article 26): one
cannot plead necessity to justify invading Belgium, for example. 62
L Consent
Valid consent by a State to action by another State which would otherwise be incon-
sistent with its international obligations precludes the wrongfulness of that action
(ARSIWA, Article 26). This is consistent with the role of consent in international
relations generally: thus a State may consent to military action on its territory which
(absent its consent) would be unlawful under the United Nations Charter. More
mundanely, a State may consent to foreign judicial inquiries or arrest of suspects
on its territory.63 But consent only goes so far: a State cannot waive the application
60 See Loizidou v Turkey (Preliminary Objections), ECtHR Ser A, No 310 (1995),20 EHRR 99; Merits, RJD
1996-VI, P 2216, 23 EHRR 513.
61 Specific defences or excuses may be recognized for particular obligations: eg Article 17 of the 1982
Convention on the Law of the Sea. Cf ARSIWA, Article 55.
62 As Chancellor von Bethmann-Hollweg did before the Reichstag in 1914: see Crawford, 2002, p 178.
63 See, eg Savarkar (1911) 11 RlAA 243.
THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY
of what in national law would be called mandatory rules and in international law
are called peremptory norms. Thus a State cannot (by treaty or otherwise) consent to
or legitimize genocide, a situation allowed for in the ILC's formulation of the defence
of consent-consent must be 'valid' (ARSIWA Article 20; cf Article 26). Further,
consent will only preclude the wrongfulness with regard to the giving State; if
the obligation breached is owed in parallel to more than one State, the wrongfulness
of the act will not be precluded with regard to those States that have not consented. 64
2. Self-defence
In certain circumstances, a State may permissibly disregard other international
obligations whilst acting in self-defence in accordance with the Charter of the United
Nations (ARSIWA, Article 21). The point was implicitly recognized by the Inter-
national Court in the Nuclear Weapons Advisory Opinion, when it distinguished
between per se restrictions on the use of force, whatever the circumstances-in
another formulation, 'obligations of total restraint' -and considerations which, even
if mandatory in time of peace, might be overridden for a State facing an imminent
threat and required to act against it in self-defence. 65
3. Force majeure
In common with most legal systems, international law does not impose responsibility
where the non-performance of an obligation is due to circumstances entirely outside
the control of the State. This defence obviously needs to be tightly circumscribed, and
the language of Article 23 (1) of the ILC Articles provides that force majeure is a
defence only where 'the occurrence of an irresistible force or of an unforeseen event,
beyond the control of the State, [makes] it materially impossible in the circumstances
to perform the obligation'. The defence of force majeure is further circumscribed by
the limitations in Article 23(2), which provide that force majeure will not apply
if either the situation 'is due, either alone or in combination with other factors, to
the conduct of the State invoking it', or if, as a result of assessment of the situation, the
State seeking to invoke force majeure assumed the risk of the situation occurring.
4. Distress and necessity
The two circumstances of distress and necessity have much in common in that they
both excuse conduct which would otherwise be wrongful because of extreme circum-
stances. According to Article 24, distress operates to excuse conduct where the author
of the act 'had no other reasonable way ... of saving the author's life or the lives of
other persons entrusted to the author's care.' By contrast, necessity operates to excuse
conduct taken which 'is the only means for the State to safeguard an essential interest
64 See, eg Customs Regime between Germany and Austria,. 1931, Advisory Opinion, PCI], Ser AlB, No 41,
p37.
65 On per se restrictions see Legality of the Threat or Use ofNuclear Weapons, Advisory Opinion, IC] Reports
1996, p 226, paras 39 and 52; on 'obligations of total restraint', ibid, para 30.
-----------------------
 JAMES CRAWFORD AND SIMON OLLESON
against a grave and imminent peril'. Distress and necessity are to be distinguished
from force majeure in that violation of the obligation in question is theoretically
avoidable, although absolute compliance of the State with its international obligations
is not required; a State is not required to sacrifice human life or to suffer inordinate
damage to its interests in order to fulfil its international obligations.
The possibilities of abuse are obvious, in particular for invocation of necessity,
and in the ILC Articles both circumstances are narrowly confined. Thus reliance on
them is precluded if the State has in some way contributed to the situation which it is
seeking to invoke to excuse its conduct. Further, the invoking State can only excuse
conduct which is not unduly onerous for other States. Reliance on distress is pre-
cluded if the act in question <is likely to create a comparable or greater peril' (Article
24(2)(b». Likewise, the invocation of a state of necessity is precluded if the action
would <seriously impair an essential interest of the State or States towards which the
obligation exists, or of the international community as a whole' (Article 25(1)(b».
Although the wrongfulness of the act is precluded, other States are not expected
to bear the consequences of another State's misfortune; the invoking State may have to
pay compensation for any material loss caused to the State or States to which the
obligation breached was owed (Article 27(b».
5. Countermeasures
As the International Court affirmed in the GabCikovo-Nagymaros Project case,
countermeasures taken by a State in response to an internationally wrongful act of
another State are not wrongful acts, but are recognized as a valid means of self-help as
long as certain conditions are respected. 66 Countermeasures as described in the ILC
Articles only cover the suspension of performance by a State of one or more of its
obligations; they are to be distinguished from acts of retorsion which, since they are
by definition not a breach of the obligations of the State, cannot give rise to State
responsibility and therefore require no justification. Certain obligations, such as that
to refrain from the use of force, those of a humanitarian character prohibiting the
taking of reprisals, and those under other peremptory norms may not be suspended
by way of countermeasure.
6. Consequences of invoking a circumstance precluding wrongfulness
Despite the fact that the wrongfulness of an act may be precluded by international law,
that is not the end of the question. First, the wrongfulness of the act' will only be
precluded so long as the circumstance precluding wrongfulness continues to exist. For
66 The conditions. required by the ARSIWA, in order for countermeasures to be lawful are: they must be
taken to induce compliance with the obligations contained in Part Two of-the Articles (reparation, cessation
... ) (Article 49(1»; they must be as far as possible reversible (Article 49(3»; they must be proportionate
(Article 51); there must have been a request to the State to fulfil its obligations, and notification of the
decision to take countermeasures accompanied by an offer to negotiate (Article 52(1». For the recognition
of these conditions as customary see GabCikovo-Nagymaros Project (Hungary/Slovakia), judgment, Iej Reports
1997,p 7.
THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY
instance, if State A takes countermeasures in response to a breach by State B of
obligations owed to State A, if State B recommences performance of its obligations
State A must terminate its countermeasures; if it does not, it will incur responsibility
for the period from which the countermeasure was no longer justified (Article 27(1».
Secondly, the preclusive effect may be relative rather than general: again, this is
obviously true of countermeasures, where conduct which is justified vis-a.-vis a
wrongdoing State will not or may not be justified erga omnes. In certain circum-
stances, the State having committed the act which would otherwise be a breach of its
international obligations will not necessarily be absolved from providing some form
of compensation if other States are injured in some way (Article 27(2».
IV. THE CONTENT OF
INTERNATIONAL RESPONSIBILITY
Upon the commission of an internationally wrongful act, certain secondary obliga-
tions arise by operation of law. These are contained in Part Two, Chapter I of the ILC .
Articles. Article 30 identifies two main categories, the obligations of cessation and
reparation. The equal emphasis on these is an important insight. Issues of State
responsibility are not only backward-looking, concerned at obtaining compensation
for things past. They are at least as much concerned with the restoration of the legal
relationship which has been threatened or impaired by the breach-ie with the assur-
ance of continuing performance. This is particularly clear where the individual breach
may not have in itself caused any great amount of harm but where the threat of
repetition is a source of legal insecurity. It can be seen in matters as diverse as the
protection of embassies and protection of the environment. In these and other
contexts, the relevant rules exist to protect ongoing relationships or situations of
continuing value. The analogy of the bilateral contract, relatively readily terminated
and replaceable by a contract with someone else, is not a useful one even in the
context of purely inter-State relations, and a fortiori where the legal obligation exists for
the protection of a wider range of (non-synallagmatic) interests.
Thus the fact that the responsible State is under an obligation to make reparation
for a breach does not mean that it can disregard its obligation for the future, effec-
tively buying its way out of compliance; when an obligation is breached, it does not
disappear of its own accord. The obligation continues to bind the responsible State,
and the State therefore remains obliged to perform the obligation in question (Article
29). As a corollary, in the case of a continuing act which breaches an international
obligation, the responsible State is under an obligation to bring that act to an end
(Article 30(a». Indeed in certain circumstances it will be appropriate for-and
may be incumbent upon-the responsible State to offer appropriate assurances and
guarantees of non-repetition of the act in question to the State to which the obligation
is owed (Article 30(b».
 JAMES CRAWFORD AND SIMON OLLESON
The point was made by the International Court in the LaGrand case, which con-
cerned United States non-observance of obligations of consular notification under
Article 36 of the Vienna Convention on Consular Relations. The particular occasion
of Germany's complaint was the failure of notification concerning two death row
inmates who (notwithstanding their German nationality) had hardly any connection
with Germany; but there was a wider concern as to United States' compliance with its
continuing obligations of performance under the Consular Relations Convention.
Indeed the United States accepted this, and spelled out in detail the measures it had
taken to ensure compliance for the future. In consequence the Court held:
that the commitment expressed by the United States to ensure implementation of the
specific measures adopted in performance of its obligations under Article 36, paragraph
l(b), must be regarded as meeting Germany's request for a general assurance of
non-repetition. 67
But of course questions of reparation also arise, especially where actual harm or
damage has occurred, and under international law the responsible State is obliged to
make full reparation for the consequences of its breach, provided that these are not
too remote or indirect. The linkage between breach and reparation is made· clear, for
example, in the Statute of the International Court of Justice, which specifies among
the legal disputes which may be recognized as falling within the Court's jurisdiction:
(c) the existence of any fact which, if established, would constitute a breach of an inter-
national obligation;
Cd) the nature or extent of the reparation to be made for the breach of an international
obligation.
This link was spelled out by the Permanent Court in the Factory at Chorz6w case, in a
classic passage:
It is a principle of international law that the breach of an engagement involves an obligation
to make reparation in an adequate form. Reparation therefore is the indispensable com-
plement of a failure to apply a convention and there is no necessity for this to be stated in the
convention itself. Differences relating to reparations, which may be due by reason of failure
to apply a conve~tion, are consequently differences relating to its application. 68
Thus there is no need for a specific mandate to an international court or tribunal
to award reparation, if it has jurisdiction as between the parties in the matter: a
dispute as to the interpretation or application of a treaty covers a dispute as to the
consequences of its breach and thus the form and extent of reparation.
The underlying principle is that reparation must wipe out the consequences of the
breach, putting the parties as far as possible in the same position as they would have
been if the breach had not occurred. In order to achieve that, reparation may take
67 LaGrand (Germany v United States of America), Merits, judgment, ICj Reports 2001, not yet reported; 40
1LM 1069, para ~24; see also the dispositif, para 128(6).
68 Factory at Chorzow, jurisdiction, judgment No 8,1927, PClj, Ser A, No 9 at p 21.
THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY
several forms, including but not limited to monetary compensation. Again, both
points were made by the Permanent Court in the Chorz6w case:
The essential principle contained in the actual notion of an illegal act-a principle which
seems to be established by international practice and in particular by the decisions of
arbitral tribunals-is that reparation must, so far as possible, wipe out all the consequences
of the illegal act and reestablish the situation which would, in all probability, have existed if
that act had not been committed. Restitution in kind, or, if this is not possible, payment of a
sum corresponding to the value which a restitution in kind would bear; the award, if need
be, of damages for loss sustained which would not be covered by restitution in kind or
payment in place of it-such are the principles which should serve to determine the amount
of compensation due for an act contrary to internationallaw. 69
As this passage suggests, in theory at least, international law has always placed
restitution as the first of the forms of reparation; it is only where restitution is not
possible that other forms are substituted. This contrasts with the common law
approach, under which money was taken to be the measure of all things and specific
performance or restitution in kind were historically somewhat exceptional. In practice
the two approaches are tending to converge-on the one hand, it is not infrequently
found that specific restitution is not possible or can only be made in an approximate
form in international law, while courts in the common law tradition have been
expanding the scope of non-pecuniary remedies.
The basic requirement of compensation is that it should cover any 'financially
assessable damage' flowing from the breach (ARSIWA, Article 36). In many cases
(especially those involving loss of life, loss of opportunity, or psychiatric harm), the
process of quantification is approximate and may even appear arbitrary. By contrast
in cases involving loss of property (eg expropriation) a market for the property may
exist which will give greater guidance. In addition, issues such as loss of profits may
arise and, provided they are clearly established, may be compensable. Compensation
may be supplemented by interest (including, if this is justified, compound interest);
after some prevarication, the ILC decided to treat the issue of interest in a separate
article (ARSIWA, Article 38; Commentary, Crawford, 2002, pp 235-239).
Although international tribunals have gradually been moving towards a more
realistic and complete appreciation of issues of compensation (Gray, 1987, pp 77-95;
Crawford, 2002, pp 218-230)-and of remedies more generally-it remains the case
that many international disputes have a distinctly symbolic element. The claimant
(whether a State or some other entity) may seek vindication more than compensation,
and this is recognized in the international law of reparation by way of the somewhat
protean remedy of 'satisfaction'. According to Article 37(2) of the ILC Articles,
satisfaction 'may consist in an acknowledgement of the breach, an expression of
regret, an apology or another appropriate modality'. In many cases before inter-
national courts and tribunals, an authoritative finding of the breach will be held to be
69 Factory at Chorzow, Merits, judgment No 13, 1928, PClj, Ser A, No 17 at p 47.
 JAMES CRAWFORD AND SIMON OLLESON
sufficient satisfaction: this was the case in terms of Albania's claim that the United
Kingdom had violated its sovereignty by conducting certain mine-sweeping
operations in its territorial waters in the Corfu Channel case,7° and it has been held
to be the situation in innumerable human rights cases, including some where more
substantial remedies might have seemed justified (Shelton, 1999, pp 199-213).
As was noted above in Section II.B, if the breach in question constitutes a serious
breach of an obligation arising under a peremptory norm of general international
law certain additional consequences arise for all other States under Article 41, the
principle of which is the obligation not to recognize as lawful the situation created, or
to render aid or assistance in its maintenance.
v. INVOCATION OF RESPONSIBILITY: RESPONSES
BY THE INJURED STATE AND OTHER STATES
Although international responsibility is deemed to arise directly by operation of law
on the occurrence of a breach, for practical purposes that responsibility has to be
invoked by someone. It may be invoked by the injured State or other party, or possibly
by some third State concerned with the <public order' consequences of the breach. Part
Three of the ILC Articles deals with this important issue but in a non-exclusive way.
In particular, while it acknowledges that the responsibility of a State may be invoked
by an injured party other than a State (eg by an individual applicant to the European
Court of Human Rights), Article 33(2) leaves issues of invocation by persons
or entities other than States for treatment elsewhere. The scope of Part Three is
thus narrower than that of Parts One and Two of the Articles: these deal with the
conditions for and consequences of all breaches of international law by a State in
the field of responsibility, whereas Part Three only deals with the invocation of the
responsibility of a State by another State or States.
Even so, the subject of Part Three is a large and controversial one. To what extent
is a State to be considered as injured by a breach of international law on the part
of another State? And if not individually injured, to what extent might it demand
remedies for the breach-with the inferential consequence of countermeasures if
such remedies are not forthcoming? Given that international law includes not only
bilateral obligations analogous in national systems to contract and tort (or delict), but
also obligations intended to protect vital human interests of a generic kind (eg peace
and security, the environment, sustainable development), the questions dealt with in
Part Three could scarcely be more important.
They are primarily addressed through two Articles. One (Article 42) defines in
relatively narrow and precise terms the concept of the 'injured State', drawing in
. 70 Corfu Channel, Merits, Judgment, ICJ Reports 1949, p 4 at p 25.
THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY
particular on the analogy of Article 60(2) of the Vienna Convention on the Law of
Treaties?! The second (Article 48) deals with the invocation of respo~sibility in the
collective interest, in particular with respect to obligations owed to the international
community as a whole, giving effect to the Court's dictum in the Barcelona Traction
case, set out below. The former category covers the breach of an obligation owed to a
State individually. Also treated as 'injured States' are those which are particularly
affected by the breach of a multilateral obligation, either because they are 'specially
affected' or because the obligation is integral in character, so that a breach affects the
enjoyment of the rights or the performance of the obligations of all the States con-
cerned. The contrast is with the 'other States' entitled to invoke responsibility, which
are specified in Article 48(1):
Any State other than an injured State is entitled to invoke the responsibility of another State
... if:
(a) the obligation breached is owed to a group of States including that State, and is
established for the protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.
Article 48(a) reflects the distinction drawn by the International Court in Barcelona
Traction between 'bilaterizable' obligations and obligations owed to the international
community as a whole (sometimes called obligations 'erga omnes'). In the case of the
latter:
By their very nature [they] are the concern of all States. In view of the importance of the
rights involved, all States can be held to have a legal interest in their protection ...72
The Court in 1970 gave a number of examples of such obligations erga omnes,
including the prohibition of acts of aggression and genocide and 'the principles and
rules concerning the basic rights of the human person, including protection from
slavery and discrimination'.73 Since then, the Court has also recognized the right of
self-determination as falling within the category.74
71 Article 60(2) provides as follows:
2. A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to
terminate it either:
(i) in the relations between themselves and the defaulting State; or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in
whole or in part in the relations between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the
treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its
provisions by one party radically changes the position of every party with respect to the further performance
of its obligations under the treaty.
72 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970,
p 3, para 33.
73 Ibid, para 34 .
74 See East Timor (Portugal v Australia), Judgment, IC! Reports 1995, p 90, para 29.
470 JAMES CRAWFORD AND SIMON OLLESON THE NATURE AND FORMS OF INTERNATIONAL RESPONSIBILITY
Article 48(b) tackles the problem of obligations owed to a group of States where in
the case of a breach there is no individual State injured in the sense of Article 42. REFERENCES
Examples of such obligations are human rights norms and certain environmental
protection norms; the beneficiaries of such obligations are either individuals in the ABI-SAAB, G (1999), 'The Uses of Article
case of the former, or the group of States as a whole in the case of the latter. 75 19',10 BJIL 339.
In the case of breach of one or other of these categories of obligation, third States BOLLECKER-STERN, B (1973), Le prejudice
can demand cessation and assurances and guarantees of non-repetition, as well as dans la theorie de la responsibilite inter-
performance of the obligation of reparation on behalf of either the State injured or nationale (Paris: Pedone).
the beneficiaries of the obligation breached. BROWNLIE, I (1983), Sys~em of the Law of
Part Three of the ILC Articles goes on to consider a number of related questions, Nations; State Responsibility: Part I
for example, the consequences of invocation of responsibility by or against several (Oxford: Clarendon Press).
States, circumstances such as waiver or delay where a State may be considered to have CLAPHAM, A (1993), Human Rights in the
lost the right to invoke responsibility, as well as that ultimate form of invocation, the Private Domain (Oxford: Clarendon
taking of countermeasures in response to an international wrongful act which Press).
remains unredressed and unremedied. Some of these issues are dealt with elsewhere in CRAWFORD, J (2002), The International
this volume. Law Commission's Articles on State
Responsibility; Introduction, Text and
Commentaries (Cambridge: Cambridge
University Press).
VI. CONCLUSION: FURTHER DEVELOPMENT OF DE HOOGH, A (1996), Obligations Erga
Ornnes and International Crimes (The
-THE LAW OF INTERNATIONAL RESPONSIBILITY?
Hague: Kluwer).
EVANS, MD (2002), Blackstone's
As we have seen, there has been a tendency to view international responsibility as, in
International Law Documents, 5th edn
the first place, essentially a bilateral matter, without wider consequences for others
(London: Blackstone Press).
or for the international system as a whole, and, in the second place, as quintessentially
GRAY, C (1987), Judicial Remedies in
an inter-State issue, separated from questions of the relations between States and
International Law (Oxford: Clarendon
individuals or corporations, or from the rather unaccountable world of international
Press).
organizations. This approach works well enough for bilateral treaties between States
JENNINGS, RY and WATTS, A (1992),
or for breaches of general international law rules which have an essentially bilateral
Oppenheim's International Law, 9th edn
operation in the field of intergovernmental relations. But international law now
(London: Longman).
contains a range of rules which cannot be broken down into bundles of bilateral
relations between States but cover a much broader range. How can these be accom-
modated within the traditional structure of State responsibility? The attempt to
develop the law beyond traditional paradigms was the greatest challenge facing
the ILC, and constitutes one of the more fascinating fields of a rapidly developing- FURTHER READING
and yet precarious-international order.
BODANSKY, D, CROOK, J, ROSENSTOCK, R,
BROWN WEISS, E, BEDERMAN, DJ, SHEL-
TON, D, CARON, DD, and CRAWFORD, J
(2002), 'Symposium: The ILC's State
Responsibility Articles', 96 AJIL 773-890:
75 This does not exclude the possibility that one or more States may be injured in the sense of Article 42 by
a collection of responses to the adoption of
a breach of an environmental protection norm. In addition, Article 48 seeks to articulate the possible interest
the ILC's Articles on State Responsibility.
of other States in compliance with the obligation.
471
J0RGENSEN, N (2000), The Responsibility of
States for International Crimes (Oxford:
Oxford University Press).
KLABBERS, J (2002), An Introduction to
International Institutional Law (Cam-
bridge: Cambridge University Press).
KOSKENNIEMI, M (2001), 'Solidarity
Measures: State Responsibility as a New
International Order?', 72 BYIL 337.
MORGENSTERN, F (1986), Legal Problems of
International Organizations (Cambridge:
Grotius Publications).
PELLET, A (2001), 'The New Draft Articles
of the International Law Commission ...
A Requiem for States' Crime?', 32 Nether-
lands YElL 55.
RATNER, SR (2001), 'Corporations and
Human Rights: A Theory of Legal
Responsibility', III Yale LJ 443.
RUBIN, AP (1998), The Law of Piracy,
2nd edn (Irvington-on-Hudson, NY:
Transnational Publishers).
SHELTON, D (1999), Remedies in Inter-
national Human Rights Law (Oxford:
Oxford University Press).
WELLENS, K (2002), Remedies against
International Organizations (Cambridge:
Cambridge University Press).
CRAWFORD, J (2002), The International Law
Commission's Articles on State Responsi-
bility; Introduction, Text and Commentar-
-ies (Cambridge: Cambridge University
Press): the ILC's Articles on State
Responsibility and authoritative com-
mentaries adopted in 2001, together
472 JAMES CRAWFORD AND SIMON OLLESON
with an introduction wd analytical
tools, including an index and table of
cases.
CRAWFORD, J, PEEL, J, and OLLESON, S
(2001), <The ILC's Articles on Res-
ponsibility of States for Internationally
Wrongful Acts: Completion of the Second
Reading', 12 BIIL 963: an account of the
final stages of the adoption of the ILC's
Articles on State Responsibility.
Dupuy, P-M, NOLTE, G, SPINEDI, M, SICILI-
ANOS, L-A, WYLER, E, TAMS, CJ, GATTINI,
A, SCOBBIE, I, ALLAND, D, and KLEIN, P
(2002), <Symposium: Assessing the Work
of the International Law Commission on
State Responsibility', 13 BIlL 1037-1256:
a stimulating collection of essays on the
ILC's Articles on State Responsibility,
with particular emphasis on the <serious
breaches' provisions and the multilateral
aspects of invocation.
LEFEBER,· R (1998), <The Gabcikovo-
Nagymaros Project and the Law of State
15
Responsibility', 11 Leiden IlL: an account
of the relations between the law of treaties ISSUES OF ADMISSIBILITY
and the law of State responsibility.
www.law.cam.ac.uk!rcil/ILCSR/Statresp.htm: AND THE LAW ON
collection of materials on State respon-
sibility, including the reports of the INTERNATIONAL
last Special Rapporteur, and various
articles. RESPONSIBILITY
www.un.orgllaw/ilc: official website of the
International Law Commission, main-
tained by the United Nations Secretariat. Phoebe Okowa
Collection of materials on the codi-
fication of State responsibility by the
Commission.
SUMMARY
This chapter examines the legal regime governing the admissibility of claims in inter-
national adjudication. A central element in the admissibility of claims is the requirement
that a litigant should be able to establish a legal interest in respect of the claim brought
before an international tribunal. Particular attention is therefore paid to the modalities of
establishing a legal interest in respect of claims brought by States on their own behalf and
on behalf of their nationals. The role of nationality is examined and the problems posed by
competing claims in relation to multiple nationalities are explored. The unique nature of
the problems raised in extending diplomatic protection to corporations and shareholding
interests is considered in light of the jurisprudence of international tribunals. The emer-
gence of a large category of obligations designed to protect community values and which
do not fit within a private rights model pose particular problems for an international
adjudication framework, which is largely bilateral in character. Special consideration is
therefore given to the perennial difficulties involved in establishing a legal interest in
the case of obligations erga omnes, or those designed to protect collective interests
and therefore owed to a multiplicity of States. These difficulties, it is suggested are
compounded by the fact that the development of obligations erga omnes have not been
accompanied by any discernible refinement of the mechanisms for their enforcement. The
final section considers the extent to which the operation of the rule on exhaustion of local
remedies may operate to affect the admissibility of a claim. The parameters of the rule are
explored and circumstances when, as a matter of policy, it ought to be regarded as
inapplicable are discussed.
474 PHOEBE OKOWA
1. INTRODUCTION
The legal premisses for the imposition of responsibility as well as the excuses that may
be available to a State whose responsibility is called into question have already been
discussed in the previous chapter. The concern in this chapter is essentially twofold.
First, to identify the State or States that could be described as having locus standi
in relation to a given wrong. Second, to consider the application of other rules
of international law that may operate to preclude the admissibility of a claim
before an international tribunal even if a cause of action and legal interest are clearly
established. Although the basis of responsibility and issues of admissibility generally
tend to be treated as discrete topics in much of the literature, there is nevertheless a
close relationship betWeen them, and issues of admissibility are closely intertwined
with substantive grounds for the imposition of responsibility. For who can sue in
respect of a wrong is to a large extent determined by the nature and content of the
obligation, manner of breach, and the range of interests the obligation is designed
to protect. As a preliminary issue, a litigant State must be able to establish that an
obligation owed to it has been breached. In theory, where the obligation breached is
designed to protect community values, it may be much easier for a claimant State to
establish legal interest by demonstrating that it is within the zone of protection
afforded by that obligation (Thirlway, 1995, pp 49-58; Collier and Lowe, 1999).1 But
as will be immediately apparent from the discussion below, the legal regime for
protecting community obligations lacks intellectual coherence and the modalities
for their implementation are fraught with practical difficulties.
II. LEGAL INTEREST AS A PRE-REQUISITE TO
ADMISSIBILITY OF CLAIMS
In general, international law like most other legal systems insists that only those
claimants who have a demonstrable interest may bring an action in respect of a
wrong. For example in the South West Africa cases, the IC] rejected the applicants'
claim principally on the basis that they had no legal right or interest in respect
of the subject matter of the dispute brought by them? Although the correctness
1 The practice of the ICJ unfortunately paints a different picture. In its jurisprudence, the Court has
maintained a distinction between the existence of legal interest and the ability to invoke the jurisdictional
provisions of the Court. The existence of a legal interest does not necessarily mean that a State will be entitled
to bring a claim and other jurisdictional factors may operate to exclude the claim. See East Timor case
(Portugal v Australia), Judgment, IeJ Reports 1995, p 90 at para 29.
2 South West Africa, Second Phase, Judgment, Ie] Reports 1966, p 6, para 99; see ILC Commentary to
Draft Art 48 (para 7), Official Records of the General Assembly, Fifty-Sixth Session, Supplement No 10
(AJ56110) Chap V.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 475
of the interpretation of the mandate in question by the Court has been doubted,
there is nevertheless general acceptance that apart from obligations erga omnes,
only those who are designated as beneficiaries of international obligations have a
right to enforce them. 3 In the Nicaragua case, the International Court denied that
the United States could rely on alleged breaches of obligations owed by Nicaragua
to the OAS as a basis for imposing countermeasures. The Court pointed out
that:
even supposing that such a political pledge had the force of a legal commitment it could
not have justified the United States insisting on the fulfillment of a commitment made not
directly towards the United States but towards the organisation, the latter alone being
empowered to monitor the irnplementation. 4
In principle, there is every reason to suppose that the Court would have reached
the same conclusion if the United States had relied on Nicaragua's non-compliance
with obligations owed to the OAS as a basis of a legal claim.
A. RATIONALE OF INTERNATIONAL LAW RULES ON LOCUS STANDI
Several underlying reasons may be detected in the various rules underpinning locus
standi in international law. The first and most obvious can in part be explained by
the nature of international law as a law primarily between States, and as a con-
sequence only States in general have procedural capacity to bring an action before
an international tribunal. Thus in the absence of special treaty arrangements grant-
ing individuals, corporations, or other legal entities access to international tri-
bunals, their claims must be channelled through the State of their nationality. 5
There is thus something of an artificiality about international law rules on locus
standi, for even when it is the individual who has been injured, the traditional view
proceeds on the premiss that it is the State of which that individual is a national
that is wronged and who can therefore bring an action in respect of the wrong
(Leigh, 1971, p 453).
Secondly, general international law rules on standing are premissed on a par-
ticular view of the role of international tribunals, that is, the settlement of disputes
between States on a private rights model. They are in large measure concerned with
discretely bilateral disputes. Although there has been a fairly consistent jurisprudence
recognizing that a large number of obligations do not fit into the private rights model,
in particular those designed to protect community values, international law has
3 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, IeJ Reports 1970, p 3,
para 35.
4 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
Merits, Judgment, IeJ Reports 1986, p 14, para 262.
5 The many jurisdictional issues that arise in this context are strictly speaking beyond the scope of
the present inquiry and have been extensively dealt with in the literature on jurisdiction of international
tribunals. See Fitzmaurice, 1986, pp 427-575; Rosenne, 1997.
 PHOEBE OKOWA
tended to exclude standing where an applicant State's interest is a general vindication
of community values or principles oflegality.6
Thirdly, the rules on admissibility attempt to strike a balance between the need for
international supervision of obligations and respect for the sovereign power of States
to adjudicate on matters within their jurisdiction. Jurisdiction in respect of matters
occurring on their territory is an attribute of sovereignty, and in general national
courts have a right of first recourse, with international tribunals possessing something
akin to a default power, exercisable in large measure where domestic tribunals have
failed to grant a remedy. Thus rules on exhaustion of local remedies are in part
explicable by reference to the territorial character of jurisdiction. The decisions in the
Nottebohm7 and Barcelona Traction cases8 also manifest a particular sensitivity to the
right of the territorial State to deal with matters occurring on its territory.
The emergence of a large category of obligations which do not fit within a bilateral
or private rights framework insofar as they are designed to protect community values
and interests pose a particular challenge for the traditional rules on admissibility
of claims. These obligations transcend individual State interests, and protection of the
values, which underpin them, can only be realized if expanded notions of standing
were adopted so as to permit litigation in the public interest. The obligations princi-
pally in the field of human rights, protection of the environment, preservation of
peace and security, may affect the interests of the international community at large
without affecting the interests of anyone particular State. 9 Extended notions of locus
standi have been proposed de lege ferenda in order to make the protection of these
values a reality. Thus there is increasingly a presumption that all States have a general
interest in the legality of actions that affect community values, even if the precise
implications are yet to be worked out. 10
B. MODALITIES OF ESTABLISHING OF LEGAL INTEREST
Given international law's conception of standing as a vindication of primarily private
rights, it comes as no surprise that for a claim to be admissible, the applicant State
must demonstrate that it has a legal interest in the matter. At a general level, legal
interest is defined by reference to the obligation breached; not quite a distinct issue
but part of the definition of the cause of action-the party to whom the obligation is
owed is the party entitled to claim. However, two broad propositions provide the basic
framework for determining legal interest in international litigation. First, in deter-
mining the locus standi of a State, a distinction is usually maintained between injury
6 See Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment,. ICJ Reports 1970,
p 3 and East Timor (Portugal v Australia), Judgment, ICJ Reports 1995, p 90.
7 Nottebohm, Second Phase, Judgment, ICJ Reports 1955, p 4.
8 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3.
9 Although there has been a general recognition of obligations erga omnes, there is not a single case in
which an applicant State has successfully brought a claim designed to enforce community values.
10 See ILe ARSlWA, Article 48; Simma, 1994, p 217.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 477
to direct interests and those that affect indirect interests (principally injury to
nationals whether natural, corporate, or other legal entity recognized by municipal
law). There is a presumption that a State as custodian of its sovereign rights must be
taken to have a legal interest in respect of those wrongs that affect its direct interests.
Although the distinction is well established in the literature, and the jurisprudence
of international tribunals, the dividing line between them is not always easy to
determine, especially with regard to mixed claims where there are elements of direct
injury to a State's own interests as well as injury to its nationals (Meron, 1959,
pp 87-88; Wittich, 2001, pp 121-187). Nevertheless, damage to a State's warships,
diplomatic missions, members of the armed forces, the executive, including head
of State and damage to State property are, inter alia, generally regarded as examples of
injury to a State's direct interests.
III. THE BASES OF DIPLOMATIC PROTECTION
A. NATIONALITY AS THE BASIS OF LEGAL INTEREST IN
INDIRECT CLAIMS
Where injury is suffered by a natural person or other legal entity recognized by
municipal law, the general view is that the right to bring a claim in respect of the
wrong lies with the State of the victim's nationality. There is here a presumption that
nationals are indispensable elements of a State's territorial attributes and a wrong
done to the national invariably affects the rights of the State.
In the Mavrommatis case, the Permanent Court observed that:
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 Uflable 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 rights to ensure, in the person of its subjects, respect for the rules of international
law. 11
Since the exercise of diplomatic protection is generally viewed as the right of the State,
the argument has consistently been made that reliance on the right is within the
absolute discretion of States (Borchard, 1915, p 29; Greig, 1976, p 523; Oppenheim,
1992, p 934). It is further accepted that the decision whether to exercise the discretion
or not is invariably influenced by political considerations rather than the legal
merits of the particular claim. The international court in the Barcelona Traction case
succinctly made the point when it noted that:
11 Mavrommatis Palestine Concessions, Judgment No 2, 1924, PCIJ, Ser A, No 2 at p 12.
 PHOEBE OKOWA
... within the limits prescribed by international law, a State may exercise diplomatic pro-
tection by whatever means and to whatever extent it thinks fit, for it is its own right that the
State is asserting. Should the natural or legal person on whose behalf it is acting· consider
that their rights are not adequately protected, they have no remedy in international law. All
they can do is resort to municipal law, if means are available, with a view to furthering their
cause or obtaining redress. The municipal legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon t;he national a right to demand the
performance of that obligation, and clothe the right with corresponding sanctions. However,
all these questions remain within the province of municipal law and do not affect the
position internationally.
The State must be viewed as the sole judge to decide whether its protection will be
granted, to what extent it is granted, and when it will cease. It retains in this· respect a
discretionary power the exercise of which may be determined by considerations of a political
or other nature, unrelated to the particular case. Since the claim of the State is not identical
with that of the individual or corporate person whose cause is espoused, the State enjoys
complete freedom of action. 12
As a corollary there is in principle no obligation on the part of the State to transmit
the damages obtained to any of the individuals concerned. Moreover, insofar as the
right of protection is characterized as that of the State, the claiming State may chose to
do so even in the face of opposition from the injured individual. It is principally for
this reason that tribunals and jurists who considered the issue rejected the so-called
Calvo clause, by which certain natural and corporate persons entered into contracts
with third States under the terms of which they agreed to waive the right of diplo-
matic protection (Shea, 1955).
The discretionary character of diplomatic protection has in recent years been
subjected to trenchant criticism, as being incompatible with an international system
committed to human rights. It has therefore been suggested that the right of diplo-
matic protection should be seen as being that of the individual with the State merely
acting as its agent. 13 This position finds some support in national constitutions, which
already see diplomatic protection as a right of the individual enforceable even as
against the State of which he is a national. 14 On the other hand, there is equally no
doubt that many of the provisions in these constitutions are aspirational in character.
Apart from the provisions of these constitutions, there is clearly insufficient evidence
to support the thesis that general international law already imposes an obligation
on States to exercise diplomatic protection even though that may be desirable as part
of the progressive development of the law. Moreover, protection offered under human
12 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970,
p 3, paras 78-79.
13 Bennouna, Preliminary Report on Diplomatic Protection, 1998, paras 34-37; 65-66; Dugard, 2000,
paras 17 and 61-74.
14 Examples include the constitutions of Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia,
China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao People's Democratic Republic,
Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Spain, the former
Yugoslav Republic of Macedonia, Turkey, Ukraine, Vietnam, and Yugoslavia. See Dugard, 2000, para 80.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 479
rights instruments and under diplomatic protection- is best seen as two bodies of
laws, which, although not incompatible, are nevertheless designed to serve discrete
objectives. For example vindication of the rule of law may require that an action be
brought on the international plane by a State even in the face of opposition by the
wronged individual (Brierly, 1928, p 48; Dugard, 2000, para 73). Secondly, in other
instances it must be accepted that States may have wider concerns going beyond
the immediate interests of the wronged individual; these interests will at times be
better served by exercising the discretion not to bring an action on the international
plane.
B. ESTABLISHING NATIONALITY FOR PURPOSES OF
DIPLOMATIC PROTECTION
1. Natural persons
It seems to be generally accepted now that the conferment of nationality is prima facie
within the jurisdiction of States as an attribute of its sovereignty, and in general there
is a presumption that nationality granted by a State is valid as long as it complies with
the provisions of domestic law. There is nevertheless considerable, if not universal,
support for the view that the validity of any nationality so conferred on the inter-
national plane is a question of international law, and will only be opposable to other
States if it has been granted in a manner that conforms with international law criteria. 15
In particular, for nationality to provide a valid basis for the exercise of diplomatic
protection, it must have been granted in a manner consistent with principles of
international law. For this reason, nationality may be disregarded on the international
plane or treated as a nullity, if it has been granted in excess of jurisdictional limits
placed by international law. Dugard has also suggested that international law retains
a: reserve power to disregard nationality laws that are discriminatory in character, or
inconsistent with fundamental principles of human rights. 16 Most authorities also
agree that nationality will be invalid if it has been acquired malafides or on the basis of
a tenuous connection such as extending nationality laws to aliens in transit. 17
The precise role of international law in determining nationality for purposes of
diplomatic protection is however not free from controversy. In general, two dia-
metrically opposed positions seem to have emerged in the literature. The first pro-
ceeds on the premiss that questions of nationality must be settled by way of renvoi to
municipal law, and in principle the validity of nationality conferred by a State in
accordance with the requirements of its internal law must be treated as conclusive. 18
15 See Nottebohm, Second Phase, Judgment, IC] Reports 1955, p 4.
16 According to Dugard, nationality laws should be disregarded if they discriminate on the basis of
race, gender, or religious affiliation. Dugard, 2000, para 104; See also Oppenheim, 1992, pp 856 and 874;
Brownlie, 1998, p 399.
17 Dugard, 2000, para 104.
18 Nottebohm case, Second Phase, Judgment, IC] Reports 1955, p 4, Dissenting Opinions of Judges Klaestad
(p 30), Reid (p 42), and Guggenheim (p 54).
/
 PHOEBE OKOWA
The second position denies conclusiveness to municipal law criteria, and takes as its
starting point that the validity of nationality on the international plane is a question
of international law. In particular, for nationality to be valid on the international
plane it must be firmly grounded on the existence of a genuine link between the
claimant State and the individual on whose behalf he claims (Brownlie, 1998, p 412;
Fitzmaurice, 1957, pp 196-201).
Proponents of the second position argue that although the grant of nationality is a
prerogative of States, like most unilateral acts performed on the municipal plane,
questions of ultimate validity on the international plane must be determined by
reference to international standards if the rule of law is to be maintained. 19 The
position received explicit support in Article 1 of the 1930 Hague Convention on
certain Questions Relating to the Conflict of Nationality Laws which provided that
'It is for each State to determine under its own law who are its nationals' but with the
proviso 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.20
Although most writers agree that international law must retain some quality
control in matters of nationality, the precise nature of control is the subject matter
of disagreement. As already noted, there is consensus that international law must
retain a reserve power to di$regard nationality claims that are fraudulent in origin,
discriminatory, or in clear violation of generally accepted jurisdictional principles.
Beyond that it is controversial whether, at least in the context of diplomatic pro-
tection, international law requires that there should exist a genuine or effective link
between the State and the national on whose behalf it is claiming.
2. The requirement of the genuine link
In the Nottebohm case, the International Court was of the view that for nationality
to form a valid basis for diplomatic protection on the international plane, it must
be based on a genuine link between the wronged individual and the State on whose
behalf it is claiming. It said that:
A State cannot claim that the rules [pertaining to the acquisition of nationality] which it has
thus laid down are entitled to recognition by another State unless it has acted in conformity
with this general aim of making the legal bond of nationality accord with the individual's
genuine connection with the State which assumes the defence of its citizens by means of
protection as against other States.
The Court listed the following as indispensable elements of valid nationality for
purposes of diplomatic protection:
19 Flegenheimer Claim (1958),25 ILR 91 at pp 96-112, Oppenheim, 1992, p 855.
20 179 LNTS 89.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 481
A legal bond having as its basis a social fact of attachment, a genuine connection of existence
and sentiments, together with the existence of reciprocal rights and duties. It may be said to
constitute a juridical expression of the fact that the individual upon whom it is conferred,
either directly by the law or as a 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. 21
In State and arbitral practice, the requirement of genuine link was not without prece-
dent, and it had in any case been applied to cases of diplomatic prot~ction involving
dual or multiple nationality (Brownlie, 1998, p 412). In the Nottebohm case, the Court
refused to confine its application to those situations. The majority were of the view
that this requirement applied equally to those situations where the national had only
one nationality as well as where the national had a number.22
The decision has been controversial and in the literature and subsequent judicial
decisions attempts have been made either to distinguish it, or to limit its application
to the facts of the case. In the Flegenheimer case, the Italian-United States Commission
confined the application of the genuine link requirement to cases involving dual
nationals.23 In the Barcelona Traction case, the International Court refused to extend
the genuine link requirement to corporations, and further, refrained from expressing
an opinion as to correctness of the genuine link requirement as a matter of general
internationallaw.24 A number of reasons have been advanced in support of the view
that the Nottebohm case must not be taken as laying down general rules of inter-
national law applicable to all cases of nationality. First, there was considerable
evidence before the Court that the processes of naturalization by which Nottebohm
had acquired his citizenship were probably in bad faith. Dugard has therefore
suggested that a finding that the links between Nottebohm and Liechtenstein were
tenuous provided the Court with a convenient excuse to avoid a nationality claim that
was tainted by bad faith without being embroiled in a controversy as to what is
legitimate or acceptable in the grant of nationality by sovereign States (Dugard, First
Report, 2000, para 108).
Secondly, there is no doubt that the court was influenced by the unique factual
context of the dispute. Nottebohm's links with Guatemala were close and long-
standing, sparming over a period of some thirty-four years. On the other hand his
connections with Liechtenstein were weak and transitory and, given the circum-
stances, the Court thought it inequitable to allow Liechtenstein to exercise diplomatic
protection as against Guatemala. 25 It is for this reason that in much of the subsequent
literature the argument has been made that the Court was not dealing with the
21 Nottebohm, Second Phase, Judgment, ICJ Reports 1955, p 4 at p 23.
22 Ibid.
23 Flegenheimer Claim (1958),25 ILR at 148-150.
24 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970,
p 3,para 70.
25 Nottebohm, Second Phase, Judgment, ICJ Reports 1955, p 4 at p 26.
 PHOEBE OKOWA
question of the validity of Nottebohm's application as against the whole world but
more specifically against Guatemala. Indeed many authorities have doubted whether
the Court would have reached the same conclusion if the case had been brought
by Liechtenstein against some third State with whom Nottebohm had no connection
(Harris, 1998, p 594).
It is also possible to argue that although in formal terms the Court was faced with
a claim of a person possessing only one nationality, it app~oached the case as if
Nottebohm was a national of both States but with his real and effective nationality
being that of Guatemala. If this were so, the Nottebohm decision is in keeping
with the long-held view that where a person possesses two nationalities, it is the
effective nationality that is determinant26 and the State of second nationality
cannot bring a claim against the State of effective first nationality where a genuine
link exists.
The Court's formal conclusion that nationality is only valid for purposes of diplo-
matic protection if it is grounded on a genuine link has also been criticized for two
reasons. First, it has been argued that as a matter of policy, it is desirable that the
test for nationality be capable of objective determination. The requirement of genuine
link introduces into this area of the law a vague and uncertain test, and is therefore
open to abuse. 27 Second, that by denying the validity of certain forms of nationality
it has the practical effect of severely restricting the scope of diplomatic protection.
It has been argued that it is undesirable as a matter of policy that a wrong should go
unredressed merely because the links between the State and the national on whose
behalf he is claiming are weak. 28
3. Some conclusions
Notwithstanding the careful and close reasoning of the majority judgment in the
Nottebohm case, it is difficult to reach the conclusion that the genuine link require-
ment is an indispensable element of a valid nationality for purposes of diplomatic
protection. The policy reasons against a general requirement of genuine link have
already been considered. Moreover, there is little evidence that States regard a genuine
or effective link as a necessary requirement for valid nationality, at least in the context
of diplomatic protection. This is not to say that there is no role for international law in
matters of nationality. A limited reserve power to exclude certain nationality claims is
generally accepted in cases of out rightly fraudulent claims or those extended in bad
faith, or instances where the grant of nationality is manifestly incompatible with
fundamental principles of international law.
26 Canevaro case (Permanent Court of Arbitration) (1912) 11 RIAA 397; Merge claim, (1955),22 ILR 443;
Esphanianv Bank Tejarat(1983) 2 Iran-USCTR 157.
27 Dissenting Opinion of Judge Reid, Nottebohm, Second Phase, Judgment, ICJ Reports 1955, p 4
at p 46.
2S See Dissenting Opinion of Judge ad hoc Guggenheim, ibid, at pp 63-64 and see Brownlie, 1998,
pp 400-401.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 483
C. THE NATIONALITY OF CORPORATIONS
Like in the case of individuals, international law proceeds on the premiss that it is the
State of which the company is a national that may exercis~ diplomatic protection
on its behalf. The general difficulty in this area is in deciding what criteria may be
employed to determine the nationality of corporations. The difficulty is not helped
by the existence of largely contradictory and incompatible principles both in the
literature, and in the jurisprudence of international tribunals.
In the Barcelona Traction case, the International Court concluded that the
nationality of a company had to be determined by reference to the laws of the State
in which it was incorporated or had its registered office. The majority were of the view
that the fact of incorporation under the law of a State was conclusive. Moreover, that it
was not necessary to lift the corporate veil in order to determine the economic reality
of a company, and in particular whether this indicated links with a State other than
that of incorporation. The Court thus denied that Belgium had a right to bring an
action in respect of wrongs done to a Canadian company in circumstances where the
majority of the shareholders were Belgian. In rejecting Belgium's claim, the Court
noted that the reality was that a company as an institution of municipal law was an
entity distinct from its shareholders. As such where a wrong was done to the company,
the interests of the shareholders may be affected but it was the company alone that
had the right to maintain an action in international law. It noted that:
whenever shareholder's interests are harmed by an act done to the company, it is to the
latter that he must look to institute appropriate action; for although two separate entities
may have suffered from the same wrong, it is only one entity whose rights have been
infringed. 29
The majority went on to list a number of situations where the State of the share-
holder's nationality may be entitled to bring a claim on the international plane. Thus
the State of shareholder's nationality would normally have a right to diplomatic pro-
tection where the direct rights of shareholders were affected. Examples given by the
Court included (a) their rights to dividends, (b) the right to attend and vote at general
meetings, and (c) the right to share in the assets of the company after liquidation. 30
Some judges thought that shareholders may be entitled to diplomatic protection in
cases where the company had the nationality of the allegedly wrongdoing State. The
Court refrained from expressing an opinion on the correctness of the proposition
noting that the issue did not arise on the facts of the case since Spain was not the
national State of Barcelona. 31 However, its correctness is open to challenge. First, it
ignores the traditional rule that a State is not guilty of violating international law
29 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3,
para 44.
30 Ibid, para 47. See also Lowe, 2002, p 275; Watts, 1996, p 435.
31 Ibid, para 92. There is, however, support for this view in the jurisprudence of the Iran-United States
Claims tribunal, eg, Case Concerning Starrett Housing Corporation, et al. v Government of the Islamic Republic
of Iran, et al. (1983), 4 Iran-USCTR 122.
 PHOEBE OKOWA
when it harms one of its own nationals. 32 Secondly, it is difficult to reconcile with the
argument advanced by the majority that when a wrong is done to a company
the interests of the shareholders may be affected but only the company has rights
which are capable of legal protection. If shareholders are entitled to protection in
the situation where the wrong done to the company is by the very State of which it is
a national, what is the precise legal basis of the protection? Is there a process here by
which mere interests are transformed into rights capable oflegal protection?
The Court also thought that shareholders may be entitled to protection where the
company has ceased to exist. 33 On the facts the Court took the view that although the
Barcelona Traction Company was in receivership, it was formally still in existence,
and as such Belgium could not exercise protection on behalf of the shareholders.
Other judges were prepared to extend diplomatic protection in those instances where
although a company was still in existence it had become practically paralysed. 34
The Court advanced some policy-based justifications to support its conclusions. 3s
In rejecting the claims of Belgium, the Court denied that shareholders were vested
with any general right of protection. It noted that extension of protection to
shareholders insofar as it exposed the allegedly wrongdoing State to a wide range
of claimants, could introduce an element of uncertainty and insecurity into
international economic relations. The Court was also concerned with the practical
difficulty of ascertaining shareholding interests since such shares frequently change
hands, and in many instances it could be difficult to determine which State was
entitled to exercise protection, where the nominee and beneficiaries were from
36
different States. Moreover, given the fluid character of the shareholding interests,
ascertaining the legal interest may be particularly difficult, since for a right of
protection to exist nationality must be continuous (a point that will be examined
subsequently). In the Barcelona Traction case itself, there was some doubt whether
the Belgian interest in the shares had been continuous and in particular whether
Belgium could have satisfied the test at the time of the injury. The decision is thus a
fairly categorical authority in support of the view that where the company is injured,
it is the national State of the company alone that may bring an action. However, it is
clear that some judges were prepared to extend protection to shareholders. Moreover,
a number of them favoured a different test for corporations and would have applied
the genuine link test as formulated in the Nottebohm case, with the result that the
State of incorporation did not have an automatic right of protection in the absence
of some tangible connection. Furthermore there is evidence that, in practice, States
have been prepared to extend diplomatic protection to shareholding interests in
foreign corporations. There is also evidence that they have been reluctant to extend
32 See ibid, Separate Opinion of Judge Jessup, p 162 at p 192 (para 52).
33 Ibid, paras 64-68.
34 See, eg, ibid, Separate Opinion ofJudge Fitzmaurice, p 65 at pp 72-75 (paras 14-20).
35 Ibid, paras 94, 96.
36 There was some evidence before the Court that the ultimate beneficiaries of the shareholding interest
in the Barcelona Traction case were themselves non-Belgian.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 485
protection to companies incorporated in their territory in the absence of substantial
link with the national economy.
D. APPLYING THE NATIONALITY RULE
1. Nationality must be continuous .
To the extent that the State exercising the right of diplomatic protection is. acting on
its own behalf and not as agent of the injured national, ~t i.s gen:rally. saId. to. be a
requirement that the nationality must be continuous. ThIS IS log:cal, srnce It IS ~e
bond of nationality, which establishes the State's interest in ~e cla~m. Thus the .claim
must belong to a person or group of persons having the natIonalIty of th~ claImant
State from the time of the injury until the making of the award. Therefore rn cases of
subrogation and assignment, it is arguable that the nominee or assi~~ee should have
the same nationality as the original holder of the title. Many authonties nevertheless
argue that the rule should have no application where there has been a forced. or
involuntary change of nationality, for instance through a process of State succeSSIOn
or changes in a State's frontiers (Brownlie, 1998, p 483).
2. Diplomatic protection and the problem of multiple nationality
Cases of multiple nationalities present particular problems. of ~eciding .which of. the
potentially competing claimants should be entitled to exerCIse diplomatIC pro:e~on.
They also raise the problem of whether one State of a dual national can ma:ntarn a
claim against another State of nationality. A number of rul~s have emerged rn State
practice to deal specifically with problems posed by dual natI~nals.. ..
Two broad principles are widely accepted as regula~ing dIp~omatI: protectIOn rn
this area. First, diplomatic protection of dual or multIple natIOnals IS ~overned by
the principle of real or dominant nationality, and where there is a conflIct of ~e~er~
. al't'
natIOn lIes, the nationality based on an effective link is to be treatedf .as declSlve.
. al
The principle has also been explicitly endorsed in the jurisprudence 0 rnternatIon
tribunals including the Iran-United States Claims Tribunal. 38 It has also been adop:ed
without qualification in claims brought bef?re ~e United Nations. C?mpensatIOn
Commission. 39 In applying the effective natIOnality test the CommISSIOn has be~n
prepared to admit claims by Iraqi nationals provided they also possessed the valId
nationality of another State. . .
Secondly, where the application of the test indicates that ~e natIonal h~s eq~ally
strong ties with two or more States, neither should be permlt~ed to exerCIse diplo-
matic protection on his behalf, the rule of international law berng that one does not
37 Eg Canevaro case (1912) 11 RIAA 397. (1932) 2
38 Esphanian v Bank Tejarat (1983) 2 Iran-USCTR 157 ~t P 166. T~e deci~ion ~ the Salem case,
RIAA 1161 provides an isolated example rejecting the dommant/effective natIOnalIty test.
39 United Nations Document SIAC.261199117 Revl, para 11.
 486 PHOEBE OKOWA
have a remedy on the international plane against one's own State. 40 Moreover, to allow
protection in these circumstances where the national has strong ties with both States
would undermine the sovereign equality of States. In deciding which of the nation-
alities were to be treated as dominant or effective, tribunals have paid regard to factors
such as whether it was the nationality acquired at birth, the residence or domicile of
the national, date of naturalization, language, employment and financial interests,
whether the nationality was acquired bona fides, and whether the national was pre-
cluded from denying a nationality that he had in everyday dealings held out as his
own.41
3. Claims against third States
There is authority for the view that the principle of dominant or effective nationality
has no application where any of the national States of a dual national wish to protect
him against a third State. In the Salem case, the tribunal held that:
the rule of international law [is] that in the case of dual nationality a third power is not
entitled to contest the claim of one of the two powers whose national is interested in the case
by referring to the nationality of the other powerY
It is difficult to mount a principled defence of the exclusion of effective nationality
rule in these circumstances, unless one takes the view that the rule is limited to
resolving competing claims in cases involving dual nationals and has no wider appli-
cation. The general acceptance of this exception nevertheless provides evidence that\
general international law does not require nationality to be grounded on a genuine
link between the national and the claimant State in all instances.
4. Some issues concerning protection of shareholding interests
In the Barcelona Traction case, several judges thought shareholders had an inde-
pendent right to protection under international law but there were fundamental
differences concerning the precise nature of that right. Some thought that share-
holders should be regarded as having a secondary right of protection which could be
activated if the national State of the company had failed to act on its behalfY The
majority, however, rejected this, arguing that a secondary right could only come into
existence once the primary right had been extinguished, and the failure of a State to
exercise a primary right did not necessarily extinguish it.44 Furthermore, the Court
noted that the national State of the company is perfectly free to decide on the method
40 See Merge claim (1955), 22 ILR 443 and see Dugard, First Report on Diplomatic Protection, March 2000
A/CNAI506, P 53; Brownlie, 1998, p 404.
41 See the Rein case, Annual Digest and Reports of Public International Law Cases 1919-22, Case No 148,
p 216; Canevaro case (1912) 11 RIAA 397.
42 Salem case (1932) 2 RIAA 1161 at p 1188.
43 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3,
Separate Opinion ofJudge Fitzmaurice, p 65 at p 96 (para 53).
44 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970,
p 3, para 96.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 487
and extent of protection it should grant to a company having its nationality. It may
for instance decide to settle the claim, and to re-open these settlements by granting
shareholders either a parallel or subsidiary right would substantially undermine the
security of international economic relations. 45
Another argument in support of extending protection to shareholders is that
the genuine link requirement formulated in the Nottebohm case also applies to the
protection of companies, so that only in cases where there is such a link can the State
of incorporation bring a claim. This might be demonstrated where the shareholders
are from the State claiming a right of protection, or where the board of directors
have ties of nationality with the claimant State, or by the place of business activities of
the wronged company. In the Barcelona Traction case, for instance, Judge Jessup
denied that Canada had a right to exercise diplomatic protection by virtue of the
company's incorporation in that State, in the absence of some demonstrable link.
He noted that:
If a State extends its diplomatic protection to a corporation to which it has granted a charter
of convenience while at the same time similar diplomatic assistance is being extended by
another State whose nationals hold 100% of the shares, the situation might be considered
analogous to cases of dual nationality of natural persons-Nottebohm principle applies
equally here. 46
In the practice of States and in the jurisprudence of international tribunals there
are numerous instances where States have been prepared to intervene and exercise
diplomatic protection in respect of shareholding interests in foreign corporations
(Oppenheim, 1992, p 322). In the Barcelona Traction case the ICJ treated these as lex
specialis, based as it were on the terms of the instruments establishing them. However,
in a curious judgment in the 1989 ELSI case, and without any reference to the Barce-
lona Traction case, the United States was permitted to exercise diplomatic protection
in respect of injury to an Italian company, which was wholly owned by two US
subsidiaries. Although Italy raised objections, the Court was untroubled by them, and
preferred to dispose of the claim on the basis that there had been no violation of the
treaty obligations relied on by the United StatesY
It would therefore seem that notwithstanding the hard line majority position in
the Barcelona Traction case, there is a substantial body of international practice and
opinion in support of the protection of shareholding interests. However, substantial
problems of definition remain as to the precise circumstances when shareholders
may be entitled to protection, the range of interests capable of protection and the
modalities of reconciling competing claims (Lowe, 2002).
45 Ibid, para 97.
46 Ibid, Separate Opinion ofJudge Jessup, p 162 at p 170 (para 19).
47 Elettronica Sicula SpA (ELSI), Judgment, ICJ Reports 1989, pIS, para 101. But cf the Dissenting Opinion
of Judge Oda, ibid, p 83 who questioned the right of the United States to exercise diplomatic protection on
behalf of shareholders in an Italian company when that company had not ceased to exist.
 PHOEBE OKOWA
5. Exclusion of the nationality rule
The nexus of nationality is not required in all instances and its application may be
waived by treaty or other ad hoc arrangements, such as delegation of the right of
protection to another sovereign. Treaties may also extend a general right of protection
to non-nationals. Moreover, other subjects of international law, such as international
organizations, may be entitled to exercise such diplomatic protection, as is necessary
or incidental to the discharge of their functions. In the Reparations case, the IeJ
thought nationality irrelevant in cases where the United Nations brings a claim in
respect of injuries to agents of the organization incurred in the course of their
48
duties. The claim in these instances could even be addressed to the very State of
the victim's nationality, for in these circumstances the bond of nationality is not
critical to the admissibility of the claim. Examples of other instances where the rule
as to nationality of claims has been regarded as being generally inapplicable include
situations where claims have been brought on behalf of aliens in the service of
the claiming State; stateless persons; non-nationals forming a minority in a group
of national claimants; and non-nationals with long-term residence in the State
espousing diplomatic protection (Oppenheim, 1992, pSIS).
IV. ADMISSIBILITY IN CASES CONCERNING
OBLIGATIONS OWED TO A PLURALITY
OF STATES
A. INTRODUCTION
The obligations forming the basis of claims considered in the previous sections have
been in the nature of distinct bilateral duties; they are either owed directly to the State
or in the person of its nationals. In both instances, legal interest partakes of the form
of a private law claim; the wronged State must demonstrate either a direct injury to its
interests or those of its nationals. Much of the traditional law on State responsibility
has been concerned precisely with the enforcement of these bilateral rights and duties.
The category of obligations considered in this section has two main permutations.
The first concerns obligations owed to a State under a treaty instrument for the
purpose of protecting their collective interest. Here, as long as the injury or violation
is within the protected zone of interest, any of the States parties to the treaty instru-
ments may complain. For instance, States parties to regional human rights treaties
invariably have a right to complain even if the affected individuals are not their
nationals. Other treaties creating zones of protected interests include, regional nuclear-
48 Reparation for Injuries case (Advisory Opinion), ICJ Reports 1949, p 174 at pp 179,181-184.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 489
free zone treaties, regional environmental treaties, and regional instruments for
economic integration. 49
The second variation concerns the so-called obligations to the international
community as a whole. There has long been a consensus, at least since the Second
World War, that international law may have an interest in creating obligations for
the benefit of individuals and other non-State entities, such as units of self-deter-
mination, international organizations, etc. Other obligations in this category rest
on the premiss that certain values are fundamental, and are therefore owed to the
international community as a whole. The protection of these values may coincide
with individual State interests as in the case of aggression, but in most cases they
usually transcend such interests. AB a result, the international system may recognize
a role for third States in their enforcement even if they are not directly injured.
An implicit feature of this category of obligations is that the specific requirements
of legal interest based either on direct injury or ties of nationality are dispensed
with.
In an often cited passage, the International Court of Justice in the Barcelona
Traction case accepted that there were gradations of obligations in the inter-
national system, and that implicitly these qualitative differences, may call for or
justify different responses by members of the international community. It observed
that:
An essential distinction should be drawn between obligations of a State towards the inter-
national community as a whole and those arising vis-a.-vis another State in the field of
diplomatic protection. By their very nature the former are the concern of all States in view
of the importance of the rights involved, all States can be held to have a legal interest in
their protection, they are obligations erga omnes. Such obligations derive for example in
contemporary international law, from the outlawing of aggression, and of genocide, as also
from the principles and rules concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of the corresponding rights of
protection have entered into the body of general international law (Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
ICI Reports 1951, p 23) others are conferred by international instruments of a universal or
quasi-universal character. 50
The Court's pronouncement's on the erga omnes character of obligations was strictly
speaking obiter, but the literature accepted that at least at the level of primary
rules, international obligations fell into two distinct categories; those in the nature
of a civil law right and owed to individual States, and those creating a regulatory
49 For relevant treaties see for instance South Pacific Nuclear Treaty (Raratonga 1985) (1985) 24 ILM
1442; Treaty of Tlatelolco on the Prohibition of Nuclear Weapons in Latin America (1967) 634 UNTS at
281; Africa Nuclear Free Zone Treaty (1996) 35 ILM (1996) 698; ASEAN Nuclear Free Zone Treaty 1996, 35
ILM 635.
50 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3,
paras 33-34.
 490 PHOEBE OKOWA
framework for dealing with public order concerns, and therefore owed to the inter-
national community as a whole (Ragazzi, 1997).
The rhetoric of the decision has unfortunately not been matched with practical
mechanisms for their enforcement. In particular, there has been a lack of consensus
whether a distinct category of secondary rules has also come into operation; one
regulating ordinary breaches, and the other attaching different legal consequences,
as well as modalities for the enforcement of erga omnes obligations. It remains an
open and moot point, whether international law recognizes litigation in the public
interest, and in particular whether States have a legal interest to enforce community
values.
B. TREATY INSTRUMENTS PROTECTING COLLECTIVE INTERESTS
It has long been recognized that States may have an interest in the observance of treaty
instruments to which they are a party even without being directly affected. This
interest is reflected for instance in Article 60 of the Vienna Convention on the Law of
Treaties which entitles States parties to a treaty to terminate it on account of material
breach. Similarly, Article 42 of the ILC's Articles explicitly recognizes the interests
of States in ensuring compliance with treaty instruments to which they are a party.
The obligations are described as interdependent with the result that non-compliance
?y anyone party automatically affects the interests of all other parties to the treaty
mstrument. The Commission's approach is to create different degrees of 'affected-
ness', and the forms of responses that States may be entitled to adopt is determined by
the degree to which they are affected by the breach. 51
Arguably in those instances where there is a jurisdictional link between injured
States and an international tribunal, there is no reason in principle why a State
should not bring an action for the sole purpose that it is interested in enforcing the
rule oflaw as created in the treaty instrument. It should in principle have the right to
do so even if it has suffered no material injury itself, or in the person of its national.
Thus, leaving aside the vexed question whether international law recognizes an actio
popularis, it could be said that at least in respect of those obligations contained in
multilateral treaties, to which a large number of States are parties, the public interests
concerns are readily met by the recognition that all parties to such instruments may
bring an action for their enforcement.
C. LITIGATION IN THE PUBLIC INTEREST AND THE
ENFORCEMENT OF ERGA OMNES OBLIGATIONS
In Roman law it was always accepted that a plaintiff could bring an action before the
court if it was in the public interest, and there was no requirement that the plaintiff
. 51 I~C ~SIWA ~cles 42 a.nd 48 envisage a distinct role for States in enforcing obligations erga omnes
mcluding a nght to t>rmg an amon and obtain compensation on behalf of an injured State.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 491
should demonstrate an individual interest. In the South West Africa cases, the inter-
national court indirectly considered the question whether general international law
recognized the right of States to bring an action in vindication of the public interest.
The applicant's had argued that in order to be effective, the mandate for South West
Africa should be interpreted in a way that would recognize their own right to bring an
action. The Court rejected this argument and observed that:
Looked at in another way moreover, the argument amounts to a plea that the Court should
allow the equivalent of an actio popularis, or right resident in any member of a community
to take legal action in vindication of public interest. But although a right of this kind may be
known to certain municipal systems of law, it is not known to international law as it stands
at present: nor is the Court able to regard it as imported by the general principles of law
referred to in Article 38, paragraph 1 (c) of its Statute. 52
Moreover there are further indications in the Barcelona Traction case itself that the
Court did not regard the existence of erga omnes obligations as necessarily importing
recognition of an actio popularis. The right of enforcement in the Court's view only
existed in those instances when it had been directly granted by a treaty instrument. It
observed that:
With regard more particularly to human rights, to which reference has already been made in
paragraph 34 of this judgment, it should be noted that these include protection against
denial of justice. However, on the universal level, the instruments which embody human
rights do not confer on States the capacity to protect the victims of infringements of
such rights irrespective of their nationality. It is therefore still on the regional level that
a solution to this problem has had to be sought; thus within the Council of Europe, of
which Spain is not a member, the problem of admissibility encountered by the claim in
the present case has been resolved by the European Convention on Human Rights, which
entitles each State which is a party to the convention to lodge a complaint against any other
contracting State for the violation of the convention, irrespective of the nationality of
the victim. 53
The conclusion is problematic because it has the effect of depriving the erga omnes
regime of much practical value. There are few instruments indeed of general appli-
cation, which provide for the enforcement of erga omnes obligations. This lack of
realistic mechanisms for enforcement has the unfortunate effect of rendering these
obligations largely theoretical.
Even assuming that the case for actio popularis as a general rule of international law
is defensible as a matter of principle, it will still be subject to the jurisdictional
limitations that inhere in international tribunals. Thus, in absence of a jurisdictional
connection with the Court on the part of the claimant and respondent State, the
52 South West Africa, Second Phase, Judgment, ICJ Reports 1966, p 6, para 88. Judge Jessup who delivered a
strong dissent was nevertheless disinclined to accept a general right of actio popularis.
53 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970,
p 3, para 91.
 49 2 PHOEBE OKOWA
Court will invariably be unable to entertain the claim notwithstanding its erga omnes
basis (Schachter, 1991, p 210; Crawford, 1996, p 605). This much is clear from the East
Timor case.
In this case Portugal brought an action against Australia on the basis that by
entering into a treaty with Indonesia regarding the delimitation of the East Timorese
continental shelf, Australia had interfered with the right of East Timorese people to
self-determination. Yet a substantive judgment on the matter required the Court to
rule on legality of the powers enjoyed by Indonesia over East Timor. Now Indonesia
was not a party to the dispute, nor had it accepted the Court's jurisdiction. It was
therefore immediately apparent that the Court was being asked to rule on the rights
and obligations of a third party to the dispute contrary to its previous jurisprudence
as laid down in the Monetary Gold case. Portugal argued that limitations on the
Court's jurisdiction under the Monetary Gold principle had no application in view
of the erga omnes character of the obligations involved. The Court rejected the claim
and observed that:
... Portugal's assertion that the right of people's to self-determination as it evolved from
the Charter and from the UN practice has an erga omnes character is irreproachable.
The principle of self-determination of peoples has been recognised in the United Nations
Charter and in the jurisprudence of the Court. It is one of the essential principles of
contemporary international law. However, the Court considers that the erga omnes character
of a norm and the rule of consent are two different things. Whatever the nature of the
obligations invoked, the Court could not rule on the lawfulness of the conduct of a State
when its judgment would imply an evaluation of the lawfulness of the conduct of another
State which is not a party to the case. Where this is so, the court cannot act even if the right
in question is a right erga omnes. 54
Further obstacles in the path of litigation actio popularis have been noted. Schachter
for instance, has suggested that States are reluctant to set precedents which could be
used in future litigation against them, and so they are unlikely to lodge claims even in
respect of erga omnes obligations unless their direct interests were involved. Moreover,
he warns that there is a real risk that an expansive concept of actio popularis is likely to
deter even further State acceptance of the International Court's compulsory jurisdic-
tion; and those States who accept the compulsory jurisdiction will invariably protect
themselves from its consequences by making reservations to protect themselves
against actio popularis suits (Schachter, 1991, p 212). In any case it is abundantly clear
from the few occasions that the International Court has considered the matter that it
has been particularly reticent to acknowledge public interest litigation as a form of
enforcing erga omnes obligations.
The Articles finally adopted by the ILC in 2001 explicitly recognize the right of
States other than those directly injured to bring an action by way of enforcing the
54 East Timor (Portugal v Australia), Judgment, IeJ Reports 1995, p 90, para 29.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 493
collective interest. 55 The Special Rapporteur in the commentary to Article 48
acknowledged that the Article involved elements of progressive development of the
law insofar as it entitled States to bring claims for restitution and reparation on behalf
of the beneficiaries of the obligation even when they were not directly affected. The
Articles have now been commended to States by the UN General Assembly in GA Res
56/83 (12 December 2001), but it remains an open question whether this positive
endorsement will be reflected in actual State behaviour.
v. ADMISSIBILITY OF CLAIMS AND THE RULE-
ON EXHAUSTION OF LOCAL REMEDIES
A. INTRODUCTION
There is almost universal consensus that in the absence of an agreement to the con-
trary, a claim is inadmissible on the international plane unless the alien or legal
person on whose behalf a claim has been brought has exhausted local remedies in the
putative respondent State. The rule has been endorsed in the literature as a rule of
customary law and its normative quality has been accepted by international tribunals.
A number of reasons have been put forward in support of the rule. The first is a
logical consequence of the sovereignty of States in respect of matters occurring on
their territory. It is therefore generally accepted that out of respect for sovereignty, a
State must be given the first opportunity to exercise jurisdiction in respect of matters
occurring in its territory. There is here also a presumption that the wronged national
by voluntarily bringing himself within the jurisdiction of the respondent State must
be taken to have voluntarily assumed the risk of having local law applied to him.
The second reason rests on considerations of practical convenience. It would
be both expensive and futile to bring small claims before an international forum
when there is a possibility of expeditious redress before local tribunals. It has also
been suggested that in these instances the local courts are better placed to evaluate
the facts and the evidence as well as deciding on the appropriate methods of
55 Article 48 provides:
1. Any State other than an injured State is entitled to invoke the responsibility of another in accordance
with Para 2 if:
(a) the obligation breached is owed to a group of States including that State, and is established for the protection
of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:
(a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance
with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the
injured State or of the beneficiaries of the obligation breached.
494 PHOEBE OKOWA
compensation (Brownlie, 1998). They are therefore clearly more appropriate fora for
the settlement of these disputes than the international arena.
Thirdly, in a number of instances, it is the failure to provide local redress for breach
of an international obligation that engages the responsibility of the State. There can be
no claim on the basis of denial of justice until local remedies have been exhausted. In
this instance failure to exhaust local remedies is not so much a bar to the admissibility
of the claim; rather it operates to determine the existence of responsibility, since until
such remedies have been exhausted arid found to be wanting no case for violation of
international law can be made.
B. THE CONTENT OF THE RULE
What are the parameters of the rule requiring exhaustion of local remedies and when
and in what circumstances is it discharged? The first general observation is that the
rule only applies in those instances where the State brings a claim on behalf of a
national. As a matter of principle, a State bringing a claim to protect its direct interests
is not obliged to exhaust such remedies. Although there is nothing to preclude it from
doing so, and in particular circumstances it may in fact be convenient to exhaust local
remedies.
Secondly, there is considerable support for the view that the obligation to exhaust
local remedies relates only to legal remedies, and would exclude remedies that are
discretionary or that are available as a matter of grace (Brownlie, 1998, p 499;
Brierly, 1963, p 281). It also seems to be a general requirement that the national
in question must exhaust the remedies available to their fullest extent. In particular
they must raise before local courts all the arguments that they may wish to bring
before international tribunals, 56 as well as appeal procedures provided for under
local law. 57
It seems perfectly logical that as a corollary there is no obligation to exhaust local
remedies where these are unavailable in practice or are unlikely to yield any results.
Nevertheless the decision whether legal remedies are unavailable in a particular legal
system is a contentious one, and it remains unclear how far the foreign national is
expected to test the options under national law before reaching the conclusion that
they are bound to be futile. In the Interhandel case, brought by Switzerland before the
International Court, the Court concluded that as Interhandel's suit was still pending
before United States courts, local remedies had not been exhausted. 58 The conclusion
on the face of it appeared harsh, since the corporation had been involved in litigation
in United States courts for a period of almost ten years before proceedings were
commenced by Switzerland before the International Court.
56 Finnish Ships Arbitration, 1934,3 RlAA 1479; Elettronica Sicula SpA (ELSI), Judgment, ICJ Reports 1989,
pIS.
57 Ambatielos Claim, 1956, 12 RlAA 83.
58 lnterhande~ Preliminary Objections, Judgment, ICJ Reports 1959, p 6.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 495
The jurisprudence of international tribunals indicate that local remedies will
generally be regarded as unavailable if the applicant, although granted a right of
appeal on a point of law, chooses not to exercise it, because the precise point raised
has previously been decided by a higher court to the detriment of a litigant. Similarly,
local remedies are treated as unavailable if an appeal would lie on a point of fact, but
appellate courts lack the power to review points of fact.59 In other words, the remedy
available must present a reasonable possibility of redressing the personal claim of the
litigant (Dugard, 2002, para 45).
C. THE APPLICATION OF THE RULE IN THE CONTEXT
OF MIXED CLAIMS
It has been noted that the rule requiring the exhaustion oflocal remedies only applies
in those instances where the State brings forward a claim on behalf of a national
as opposed to when it claims on its own behalf. The rule therefore rests on the
assumption that it will always be easy to distinguish between claims brought on behalf
of a national and instances when the State claims on its own behalf. While the
distinction is possible to maintain in a large number of claims, there are many cases
where the dividing line is not so clear, espe~ially when the wrong simultaneously
results in injury to the State's direct interests as well as those of the national. In these
instances, it becomes difficult to decide whether the rule requiring the exhaustion of
local remedies applies or not. Moreover, it is not uncommon for the applicant States
to simultaneously seek a declaration or interpretation of a treaty involving general
rights owed to them, and damages in respect of an injury to their nationals in
the same proceedings. Dugard, in his second report on diplomatic protection, has
suggested that in respect of mixed claims, the exhaustion oflocal remedies rule should
only apply if the claim is overwhelmingly concerned with injury to the national
(Dugard, 2001, paras 19-24).
There is some support in the jurisprudence of international tribunals for the
preponderance of interests test in the case of mixed claims. In the Interhan~el
case, Switzerland had insisted on the non-applicability of the local remedIes
rule, insofar as the claim brought by it concerned the failure of the US
authorities to apply the terms of an applicable treaty, thus causing it direct
injury. In rejecting the claim, the Court noted that the dispute was essentially one
in which:
the Swiss Government appears as having adopted the cause of its national Interhandel, for
the purpose of securing restitution to that company of assets vested by the government of
the United States.
It further observed that:
59 Finnish Ships Arbitration, 1934, 3 RIAA 1479; Panevezys-Saldutiskis Railway, Judgment, 1939, PCI], Ser
AlB, No 76, P 4 at p 18.
 PHOEBE OKOWA
... one interest, and one alone ofInterhandel has induced the Swiss Government to institute
proceedings, and that this interest is the basis for the present claim and should determine the
scope of the action brought before the Court by the Swiss Government in its alternative as
well as principal form. 60
In the ELSI case, the Chamber of the International Court of Justice rejected the
argument of the United States that insofar as the claim was founded on breach of a
treaty obligation owed to it, it should be treated as an instance of direct injury to State
interests and not as a claim made on behalf of a national for purposes of the local
remedies rule. In rejecting the argument the Chamber observed that:
... the matter which colours and pervades the United States Claim as a whole is the alleged
damage to Raytheon and Machlett [United States Corporations].61
T~is surely is correct because even claims brought exclusively on behalf of nationals
usually originate in some kind of non-compliance with a treaty obligation owed to
the applicant State. The fact that a breach of a treaty is at issue cannot therefore be
regarded as a reliable test (if at all) for distinguishing between direct injury to a State's
interests and those cases where it claims on behalf of a national.
Meron has suggested that in deciding on the nature of the claim it is necessary to
have regard to the real interests and goals of the litigant State. Is the State primarily
pursuing its own interests or is the action in the nature of a claim brought on behalf
of a national? If the claim is primarily concerned with injury to a national, then the
rule will operate to exclude the admissibility of the claim including any secondary
elements, which strictly speaking are in the nature of inter-State claims (Meron, 1959,
p 87). There is also general recognition that claims, which are primarily about treaty
interpretation and application, are direct State claims even if they arise in circum-
stances also affecting the rights of a private person (Oppenheim, 1992, p 523). The
subject matter of the dispute may also provide a useful guide as to the true character
of the claim. Thus injury to diplomatic or consular staff,62 or State property63 will
generally be regarded as direct claims and therefore not subject to the operation of the
local remedies rule. Although not conclusive, the nature of the remedy sought may
also be a useful indicator in claims presenting mixed elements (Adler, 1990, p 652;
Dugard 2001, paras 29-30). There is considerable justification in looking at the
essence of the claim and characterizing it by paying regard to its principal objectives.
However, a rigid application of the predominance test may preclude valid claims by
governments, especially when in the circumstances they are unlikely to obtain any
local remedies for breach of their treaty rights (Fitzmaurice, 1961, p 37; Thirlway,
1995, pp 85-90). Moreover the dominance test ignores the fact that a State may have a
legal interest of its own to protect, such as vindicating the values underpinning the
60 Interhandel, Preliminary Objections, Judgment, ICJ Reports 1959, p 6 at p 29.
61 Elettronica Sicula SpA (ELSI), Judgment, ICJ Reports 1989, p 15, para 9l.
62 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3.
63 Corfu Channel, Merits, Judgment, ICJ Reports 1949, p 4.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 497
treaty regime, and which are unlikely to be satisfied by any material compensation or
restitution of property in national courts.
D .. NATURE OF THE RULE
Is the rule requiring exhaustion of local remedies a rule of procedure or substance?
There has been considerable discussion in the literature as to the precise character
of the rule requiring exhaustion of local remedies, and in particular whether it is
a rule of substance or procedure. This seemingly sterile debate on a closer analysis
has important normative consequences, and therefore merits close attention in any
serious treatment of the subject.
A number of different positions have been adopted. The first, which is purely
substantive in nature, proceeds from the premiss that the exhaustion o flo cal remedies
is not so much a condition of admissibility of claims, it determines the very existence
of responsibility. On this view until local remedies have been exhausted and found
wanting, there can be no international (delict' to engage the responsibility of
the State.64
The second position treats the rule as a procedural pre-requisite to the admissibility
of a claim. On this view the responsibility of a State is engaged and complete from the
time of the wrongful act, but redress on the international plane cannot be effected
until local remedies have been effected.
The third position distinguishes between different kinds of wrongs that may cause
injury to a national on whose behalf a claim is subsequently brought. On this view,
where the national is injured by a violation of a rule of domestic law, no question of
international responsibility arises, until local remedies have been exhausted. Only
then can a claim be brought on the international plane for denial of justice. Here
exhaustion of local remedies is substantive, for until such remedies have failed there
can be no question of responsibility on the international plane. Proponents of this
third position also argue that where the national is injured by what is clearly a rule
of international law, then responsibility of the respondent State is activated from
the time of the injury. In this instance, the requirement that local remedies have to be
exhausted must be seen as no more than a procedural prerequisite to the admissi-
bility of a claim on the international plane, and does not as such affect the origin of
responsibility.
Whether one adopts the procedural or substantive position may have significant
consequences for other rules affecting the admissibility of claims such as the require-
ment of continuous nationality of claims. It has been noted that for a claim to be
admissible on the international plane, it must be national in origin. In other words,
from the time of the injury until the making of the award the claim must belong to
persons having the nationality of the claimant State. Thus insofar as the timing of the
64 Ago, R, 'Sixth Report on State Responsibility', YBILC, (1977), vol II (part one), pp 22-23.
 498 PHOEBE OKOWA
origin of responsibility differs under the substantive and procedural view, the position
adopted will invariably have implications for the rule as to the continuous nationality
of claim.
Secondly, if the rule determines the origin of responsibility, then it operates as a
bar to States wishing to seek declaratory judgments or interpretation of treaties in
circumstances where injured nationals have not exhausted local remedies since until
. such remedies have been exhausted there can be no question of responsibility.
Finally, Dugard has suggested that the rule may also affect the jurisdiction of
international tribunals in those instances where States have attached time limits to
their acceptances of the court's jurisdiction (Dugard, 2001, para 33). On the pro-
cedural view, the effective time for jurisdictional purposes is the occurrence of the
injury. On the substantive view, the effective time will be after the exhaustion ~f local
remedies. Thus a claim may be admissible or inadmissible depending on which view
of the rule one adopts.
E. WHICH VIEW REPRESENTS THE LAW?
The answer to this question must surely be speculative, and has to be approached as a
matter of principle rather than on the basis of State and arbitral practice since no
international decision has explicitly addressed the issue, and the positions adopted by
governments have been largely partisan, and influenced by the exigencies oflitigation.
However, the decisions in the German Interests in Polish Upper Silesia, 65 Chorzow
Factory,66 and Phosphates in Morocco 67 cases provide the strongest evidence in support
of the procedural position insofar as the Court reached the conclusion that responsi-
bility for the wrongful act was incurred immediately following on the wrongful act
rather than after the exhaustion of local remedies.
As a matter of principle, it is difficult to mount a spirited defence of the substantive
position. It means that the determination of whether a breach of international
law takes place depends not on the international norm but on the procedures
of local tribunals, thus undermining the inherent values that underpin the inter-
national obligations (Dugard, 2001, paras 56 and 63; Amerasinghe, 1990, p 328). Non-
compliance with an obligation threatens the values that underpin the applicable
norm irrespective of whether local remedies have been exhausted or not. As Judge
Lauterpacht noted in the Norwegian Loans case:
... the exhaustion of local remedies cannot itself bring within the province of international
law a dispute which is otherwise outside its sphere. The failure to exhaust local remedies
may constitute a bar to the jurisdiction of the court; it does not affect the intrinsically
international character of a dispute. 68
65 Certain German Interests in Polish Upper Silesia, Merits, Judgment No 7, 1926, PCIJ, Ser A, No 7.
66 Factory at Chorzow, Merits, Judgment No 13,1928, PCI], Ser A, No 17.
67 Phosphates in Morocco, Judgment, 1937, PCIJ, Ser AlB, No 74, P 10.
68 Certain Norwegian Loans, Judgment, ICJ Reports 1957, p 9, Separate Opinion of Judge Lauterpacht p 34
at p 38.
ADMISSIBILITY AND THE LAW ON INTERNATIONAL RESPONSIBILITY 499
Secondly, it is generally accepted that States may agree by treaty to exclude the
operation of a rule. The validity of such agreements was accepted without qualifica-
tion in the ELSI case. Dugard has suggested that the validity of such waiver is difficult
·to defend if one adopts the substantive view since it is tantamount to saying that
States can agree to make something delictual when ordinarily it would not be a breach
unless and until it has given rise to subsequent denial of justice (Dugard, 2001, para
33). For this reason most authorities consider the exhaustion oflocal remedies to be a
rule of procedure. The State incurs international responsibility from the moment of
the wrongful act but the right to bring an international claim is suspended until the
State has had the opportunity to remedy the situation.
F. THE EXCLUSION OF THE LOCAL REMEDIES RULE
There can be no obligation to exhaust local remedies if there are no local remedies to
exhaust (Fitzmaurice, 1961, p 59). In order to be considered effective, the local remedy
must have the capacity to remedy the complaint. Clearly, when the conduct giving rise
to the injury does not violate local law, there will be no local remedies and the matter
can immediately be taken up on the international plane. The argument has also been
made that there is no obligation to exhaust local remedies in cases where public
international law does not permit the respondent State to exercise jurisdiction in the
first place (Brownlie, 1998, p 500; O'Connell, 1970, p 951). Thus an attempt to exer-
cise jurisdiction over an alien in circumstances where international law does not grant
jurisdiction would clearly be a nullity, and there is considerable merit in the argument
that no obligation to exhaust local remedies arises. 69
Many authorities argue that there is no obligation to exhaust local remedies where
there is no voluntary link between the injured individual and the respondent
State (Dugard, 2002, para 83 J. Thus the argument has been made that in principle
there should be some degree of connection between the injured individual and
the respondent State. That the obligation is therefore dispensed with, where the links
are transitory or clearly involuntary. Examples would include air crash victims
involuntarily or fortuitously injured by events in the respondent State. On the other
hand, it can be argued that it is precisely such cases that local courts are particularly
suitable for, given the multiple character of the claims and the clear local interest
in the dispute.
Finally, the requirement to exhaust local remedies may be formally dispensed with
in a treaty. Many international treaties provide that in the event of a dispute between
the State and foreign legal person, the dispute is to be referred to arbitration.
Tribunals considering the issue have reached the conclusion that where provision
is expressly made for arbitration then there will clearly be no obligation to exhaust
local remedies.
69 See Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970,
p 3, Separate Opinion of Judge Fitzmaurice, p 65 at pp 103-110 (paras 66-83).
 PHOEBE OKOWA
500 ADMISSIBILITY AND THE LAW ON INTE RN
VI. CONCLUSION REFERENCES
The preceding discussion has attempted to isolate the main legal grounds governing
ADLER, M (1990), 'The Exhaustion of the
the admissibility of claims. These conditions operate across the board irrespective Local Remedies Rule after the Inter-
of the peculiar circumstances of the case. The requirement of legal interest, exhaus- national Court of Justice's Decision in
tion of local remedies, will invariably govern the admissibility of most claims unless ELSI', 39 ICLQ 64l.
on the facts a specific waiver is in operation. Unfortunately the development of erga BENNOUNA, M (1998), 'Preliminary Report
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for a coherent regime for the enforcement of these obligations. Yet even the Com- Protection of Citizens Abroad (New York:
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and their effectiveness will ultimately depend on their reception they receive in State BRIERLY, JL (1928), 'The Theory of State
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BROWNLIE, I (1998), Principles of Public
protection is a welcome opportunity to consider some of the uncertainties and con- International Law, 5th edn (Oxford:
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States.
COLLIER, J and LOWE, AV (1999), The
This brief survey does not however purport to be a complete account of the infinite Settlement of Disputes in International
variety of circumstances that may legally operate to preclude the admissibility Law (Oxford: Oxford University Press).
of a claim. Some of these, such as the circumstances pursuant to which it could
CRAWFORD, (1996), 'The General
be said that a State had waived a claim have received fairly detailed attention in the
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2002, pp 266-269). Other grounds of preclusion-such as a finding that the dispute is Fitzmaurice, p 585.
without object; that the applicant State has itself indulged in the same wrongful
- - (2002), The International Law ~~r:z­
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(Cambridge: Cambridge University
or that the chosen forum is inappropriate (especially where the applicant State has Press).
instituted proceedings in a forum other than that nominated by the treaty) -are DUGARD, J (2000), First Report on
closely intertwined with the merits, and may therefore be treated either as issues of
Diplomatic Protection, UN Doc A/CN.4/
admissibility or as substantive grounds for defeating the claim at the merits stage. 506.
Moreover, in certain cases, the operation of estoppel may preclude the examination __ (2001), Second Report on Diplomatic
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__ (2002), Third Report on Diplomatic
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from the Standpoint of the Rule of Law,
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HARRIS, DJ (1998), Cases and Materials on
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Sweet & Maxwell).
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LOWE, AV and FITZMAURICE, M (1996),
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Kluwer), p 65.
O'CONNELL, DP (1970), International Law,
2nd edn (London: Stevens).
OPPENHEIM, L (1992), Oppenheim's
International Law, 9th edn (London:
Longman).
RAGAZZI, M (1997), The Concept of
International Obligations Erga Omnes
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ROSENNE, S (1997), The Law and Practice
of the International Court, 1920-1996,
3rd edn (The Hague: Nijhoff).
SCHACHTER, 0 (1991), International Law
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502 PHOEBE OKOWA

Community Interest in International Some Relevant Concepts', in Lowe and

Law', 250 Recueil des Cours 217.
THIRLWAY, H (1995), 'Law and Procedure of
Fitzmaurice, p 424.
PART VI
WITTICH, S (2001), 'Direct Injury and
the International Court of Justice', 66 the Incidence of the Local Remedies Rule',
BYIL4. 5 Austrian Rev of Int'l and European L
WATTS, A (1996), 'Nationality of Claims: 121.
RESPONDING TO
FURTHER READING . BREACHES OF
AMERASINGHE, CF (1990), Local Remedies in INTERNATIONAL LAW ASSOCIATION (2000),
International Law (Cambridge: Grotius).
A comprehensive survey of the law
Committee on Diplomatic Protection of
Persons and Property, Report of the
INTERNATIONAL
including an in-depth study of the main Sixty-Ninth Conference (London). A
doctrinal controversies.
CANCADO TRINDADE, AA (1983), The Appli-
comprehensive and interesting exami-
nation of a wide range of issues relating
OBLIGATIONS
cation of the Rule of Exhaustion of Local to diplomatic protection.
Remedies in International Law (Cam- PARRY, C (1956), 'Some Considerations
bridge: Cambridge University Press). A Upon the Protection of Individuals in
useful account of the rule with detailed International Law', 90 Recueil des
illustrations from the jurisprudence of Cours 657. A good analysis of the
human rights tribunals, but rather dated. law on diplomatic protection and
DE HOOGH, AJT (1996), 'Obligations Erga includes some consideration of
Omnes and International Crimes: A claims brought by international
Theoretical Inquiry into the Implementa- organizations.
tion and Enforcement of the International WARBRICK, C (1988), 'Protection of
Responsibility of States (The Hague: Nationals Abroad: Current Legal
Kluwer). A detailed inquiry into the Problems', 37 ICLQ 1002. A useful analysis
perennial difficulties surrounding the of some of the problematic aspects of
enforcement of erga omnes obligations. diplomatic protection.
 16
COUNTERMEASURES
AND SANCTIONS
ND White and A Abass

SUMMARY

The issue of enforcement by means of non-forcible measures is one of the least developed
areas of international law. Two legal regimes are relatively clear-non-forcible counter-
measures taken by States (countermeasures) and non-forcible measures taken by
international organizations (sanctions). The manifestation of a restricted doctrine of
countermeasures as the modern acceptable form of self-help is considered, along with the
partial centralization of coercion in international organizations. The problems within
each of these regimes are examined, along with the limitations that have been placed upon
their application. The co-existence of countermeasures based on a traditional view of
international relations, alongside the post-1945 development of centralized institutional
responses, is explored. Moreove~ the range of State and institutional practice that seems
to lie somewhere betwe~n the basic right of a State to take counterm~asures to remedy
an inter.nationally wrongful act, and the power of international organizations to impose
sanctions in certain circumstances, is considered. The legality of the continued use by
States of non-forcible reprisals, retorsion, and wider forms of economic coercion is
explored, as is the issue of collective countermeasures imposed either multilaterally or
institutionally.

1. INTRODUCTION: SELF-HELP IN
INTERNATIONAL LAW

Traditionally, States co-exist in a legal system that is essentially consensual. States,

no matter their disparities in size or strength, are sovereign and equal. Obligations are
accepted by States either in treaty or custom by consent, they are not imposed by any
higher .authority. In its purest form such a legal condition existed in the eighteenth
 506
ND WHITE AND A ABASS
COUNTERMEASURES AND SANCTIONS 50 7
and nineteenth centuries. This period was one of self-help, in that if a State breached
one of its obligations, the victim State(s) of such a breach could take both non- " ' s e non-forcible measures against miscreant
member States oblIgaTIons to lffipO I ' Inter American system of
forcible and forcible measures to remedy or to punish that breach. Forcible measures member States by Article 41 of the Chharter'l:ht~ devoe :e::res 3 ~ trend that was to be
could range from measures short of war, such as armed reprisals,l or could take the . 'al ovided for t e app lCa I O f n, ,
colleCTIve securIty sohpr " A seIf-help system of non-forcIble
~ome regl~
form of war. War itself could be a relatively minor exchange of fire, even mere con- . nal organIZaTIOns.
followed by ot er eriod of international relations, had to coexist with
frontation without hostilities, or it could be a full-scale bloody conflict the causes of measures denved from an ear ler P d t ' of hierarchy and governance.
which could be relatively minor.
s~
li d' ctions' base on no Ions
a system of centra ze th . t d between the institutional level and the
Before this period of absolute sovereignty and its accompanying self-help regime
In addition to the uncertamty at :X1;
e ' in the relationship between the uni-
l~vel" ~s~da~:~iO:S)c
of enforcement, theories of natural law argued for a hierarchy of norms within the l
customary there was :iother organizations, Article 53(1) of
concept of an international society (Bull, 1992, pp 71-72). Moving forward to the
versal orgarnzatIOn (the Uillt , th .c rCI'ble measures taken by regional
advent 'Of the League of Nations in 1919, created in the aftermath of the manifest d t rovlde at any non-lO
the
organizations that amounted to enforcement ac on ' would require the authorization
UN Charter seeme 0 p , ti
failure of the existing system, there emerged structures as well as norms that were
again suggestive of a more hierarchical approach. The Covenant of the League of
' t h Council, t flaw ful non- £orCI'bl e measures survived the new world
of the Security
Nations purported to regulate, if not prohibit, war, and the organization it established
potentially had weak authority over States. Brierly argued that the League was based
Certamly e concep ~ , 4 of the Charter prohibited the 'threat or use
order of the post-1945 penod. ArtIcle 2 ( ) mil't ry force (Dinstein, 2001, p 81). State
on the principles of consensuality and voluntarism (Brierly, 1946, p 92), a view that ' d tho learly construe d as 1 a
of force,
, . an ,IS wasdic t ost-1945 perIO , d proVIOded evidence of the continuation
would suggest that the organization did not upset the pre-existing order. McNair on
pracTIce m the lffiffie a e ~ 'R g ardless of whether the conditions of
the other hand thought that the League marked a move away from a system of purely of the concept of non-forCIble ~easurhes. e
private law between consenting States towards a system of public law (McNair, 1930, ' db r d with m eac case, the crucial feature was the very fact of
p 112) indicating a more vertical system of regulation. legalIty ha' b'een comp k dIe t all ThIS , provi'des a presumption of continuity of counter-
such claIffis emg sta e a , , (Elagab 1988, p 38), In the first decade after the
Whatever its nature, the idea of an international organization, with Some measure measures as a viable mode of redress d ,' l' measures freezing the assets of
of authority over States, took an even firmer grip on the imagination of States during d d th US adopte , mter a ta, ,
UN Charter was . Ra opte'a and e Hungary. Teh ' of the term countermeasures m
Bulg~na,
the Second World War. The United Nations was created in 1945, its Charter contain- comage
China, omaru, 4 and the codification of countermeasures by
ing in Article 2(4) a basic rule prohibiting the threat or use of force in international the Air Servtces Agreement ca~e ~f 1978 ) culminating in Chapter III of the Articles
relations, and creating machinery to promote and restore international peace and the International Law COmlTIlSSlOn (lLC , " d develo ment of the
security. The prohibition on force, which itself formed a core norm in an emerging on State Responsl'bil'ty1 0 f 2001 , 5 represent the conTInuatIOn an p

concept in internationalla~"
corpus of peremptory norms of international law (jus cogens) from which States could
. ' a l institutions since 1945, the ILe
not derogate, immediately cut back on the type of measures a State could take in Indeed, despite the prohferatIOn of mternatIOn es are inherent in a decentralized
response to a breach of international law. Self-help was thus cut down to half its ' " 2001 that countermeasur
was confident m assertmg m k ' d' t their rights and to restore the legal
former size by the UN Charter. Thoug!t_ States were still permitted to take forcible '" d St tes may see to vm lca e 6
system where mJure a db' an unlawful act,
action in self-defence in response to an armed attack against them, forcible measures ' , th" d State which has been rupture y
relationshIp With e mJure longer in a totally decentralized
beyond that were prohibited by the new legal regime initiated by the Charter. Though h b stated above, we are no ,
Nevertheless, as as een '" While injured States are entitled to take certam
some States and writers have repeatedly tried to resurrect the concept of armed system (but see Zoller, 1984, p Xlll)°al xt 'nst States responsible for a breach
reprisals (Bowett, 1972a) there does not appear to be any general acceptance of an ' 'tho bilater conte agat
non-forcible actIons WI m a , 'posed by the UN and other
erosion of the statement of law made by member States of the UN in 1970-'States ' 1 ( °ble States), sanctIOns lID
of internaTIonal aw responsl 'al 1 t' ship between the organization
have a duty to refrain from acts of reprisal involving the use of armed force'. 2 ° ° ti create a vertIC re a IOn .
internatIOnal organlZa States
and the implementing ons (Gowlland - D ebb as, 2001 , P 2)0 Essentially the honzontal
The prohibition in 1945 of forcible measures of self-help left the position of non-
forcible measures untouched but at the same time unclear. Clarity was lacking because
the doctrines that had emerged over the centuries were inevitably subject to many 3 Articles 8,17,20 Rio Treaty, 1947,21 UNTS 770
interpretations. In addition, the UN itself was given significant power to impose on
4 54 ILR 3 0 3 . . .. n the work of its 53rd Session, UN Doc N56/l0,
5 See Report of the International Law CommlSsIOn 0 fi d 'n Crawford 2002. The Articles will be
. I d th Commentary are oun 1
Th~ Arneones~esponsl
,
1 Naulilaa case (1928) 2 RlAA 1052. adopted 9 August 2001.(Artlcles an :bility 0 fStates for Internationally Wrongful Acts). The references
referred to as ARSIWA
2 Declaration on Friendly Relations, GA Res 2625, 24 October 1970, to the Commentary are to Crawford s text.
6 Crawford, 2002, p 281.
 508 ND WHITE AND A ABASS
system of self-help has been built upon by the creation of organization(s) with the
competence to create vertical relationships. After 1945, and arguably in a weaker
sense, after 1919 (but see Brierly, 1932, p 68), there no longer exists a pure system.
of self-help, and this has affected practice as shall be seen. States wanting to take
measures against a responsible State may go to international bodies for authority/
legitimacy, indeed it could be argued that they ought to do this when they are not the
direct victims of the unlawful act.
II. COUNTERMEASURES
A. DEFINITION OF COUNTERMEASURES
It is true to say that since the first use of the term in 1978 by the arbitral tribunal in the
Air Services Agreement case, international lawyers have used the term countermeasures
to indicate non-forcible measures. However, the discussion below will illustrate that
this has not necessarily clarified the matter, for we are left with related doctrines
of retorsion, reprisals (in a non-forcible sense), economic coercion, and economic
sanctions. In effect, as will be seen, countermeasures is a fairly narrow concept at one
end of the spectrum of non-forcible measures taken in international relations. At the
other end of the spectrum, are sanctions undertaken by international organizations.
In between we have something of a grey area where regulation is rudimentary, indeed,
some would argue, non-existent. In this section, the focus will be on countermeasures
on the grounds that they have become perhaps the most clearly defined type of non-
forcible measures, having been the subject of many years of study by the ILC. The
ILC's concept of countermeasures is the one portrayed here.
In the final Articles on State Responsibility of 2001, the ILC defined counter-
measures as non-forcible measures taken by an injured State in response to a breach
of international law in order to secure the end of the breach and, if necessary,
7
reparation. Non-forcible countermeasures may only be taken in response to an
internationally wrongful act, and only against the State responsible for that act.8
If such measures are taken without fulfilling these conditions, they themselves will
constitute an internationally wrongful act, giving rise to State responsibility and
possible countermeasures. According to the ILC, countermeasures are limited to the
temporary non-performance of one or some of the international obligations of the
injured State owed to the responsible State. 9 Cassese's summation is perhaps stronger
than that of the ILC, but useful nonetheless. He states that 'in the event of a breach of
7 Ibid, P 28I.
8 ARSIWA Article 49(1). See also Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, IeJ Reports
1997, p 7, paras 83-85.
9 ARSIWA Article 49(2)(3).
COUNTERMEASURES AND SANCTIONS 50 9
international law, the injured State is legally entitled to disregard an international
obligation owed to the delinquent State' (Cassese, 2001, p 234). Countermeasures are
not intended to be punishment for illegal acts but as 'an instrument for achieving
compliance with the obligations of the responsible State'. Countermeasures are taken
'as a form of inducement, not punishment'. The ILC's definition does not restrict
States taking countermeasures to suspension of performance of the same or very
similar obligation. Countermeasures though are more likely to accord with the con-
ditions of proportionality and necessity if they are so taken. Such measures which
correspond to the obligation breached by the responsible State are sometimes called
reciprocal countermeasures. 10 .
The suspension or temporary non-performance of a treaty obligation, quite often
the suspension of a trade agreement, and the freezing of the assets of a State under
international obligations, are primary examples of countermeasures. ll In ILC terms
the paradigm is the US-French Air Services Arbitration of 1978. This case concerned
the application of the bilat~ral air services agreement that existed between the two
countries. France had objected, as being incompatible with the treaty, to the so-called
'change of gauge' or change of aircraft by PanAm on its flight from the US to Paris via
London. The French authorities prevented PanAm passengers from disembarking in
Paris. By the time of arbitration the US had initiated (but had not implemented)
measures which would have prohibited certain French flights to the US. The arbitral
tribunal found that the change of gauge by PanAm was permitted under the treaty
and that the US retaliatory measures were permissible countermeasures, which were
not disproportionate to the violative actions taken by France. The Arbitral Tribunal
stated '[i]f a situation arises, which in one State's view, results in the violation of an
international obligation by another State, the first State is entitled, within the limits
set by general rules of international law, pertaining to the use of armed force, to affirm
its rights through "countermeasures".' 12
Countermeasures are distinct from suspension or termination of treaty obligations
due to material breach within the meaning of Article 60 of the 1969 Vienna Con-
vention on the Law of Treaties (VCLT). Measures taken under Article 60 affect the
substantive legal obligations of the State parties while countermeasures are concerned
with the responsibility that has arisen as a result of the breach. Their aim is to rectify
the legal relationship and their application should always be temporary.13 Article 60
of the VCLT also deals with 'material breach' of the treaty, countermeasures may
be taken in response to any breach, as long as they are proportionate. Article 60
specifies a procedure for suspension or termination of treaty obligations for material
breach, which differs from the procedures required to take countermeasures. Action
under Article 60 of the VCLT must be confined to the treaty being breached, while
10 Crawford, 2002, pp 282-286.
11 Ibid, P 286.
12 54 ILR 303 at p 337.
13 Crawford, 2002, p 282.
510 ND WHITE AND A ABASS
countermeasures are not so confined (Elagab, 1988, p 164). Article 60 of the VCLT
provides for the possibility of termination of the treaty, or obligation, while, in
principle, countermeasures are only temporary.
B. REPRISALS AND RETORSION
The ILC's definition of countermeasures has internal coherency. But its failure to
address the related concepts of non-forcible reprisals and retorsion leaves the impres-
sion that other types of non-forcible action taken by States (as opposed to institu-
tions) remain unregulated, and therefore arguably permittedY This means that in
reality while States can engage in countermeasures that are quite specific, they may
also be able to engage in wider non-forcible measures. The aim of these measures may
be to punish the responsible State (reprisals) as opposed to inducing it into com-
pliance (countermeasures); or which are not limited to the suspension of inter-
national obligations owed to the responsible State (retorsion). On the other hand,
it could be argued that this approach, essentially permitting other non-forcible
measures to be taken by States makes something of a nonsense of the painstaking
process of defining countermeasures. Why spend so many years defining lawful
countermeasures, unless it is based on a presumption that wider action by States is
unlawful? There has certainly been a move by the ILC in its recent revisions away from
.
conflating countermeasures and repnsals, an d countermeasures an d sanctI·ons. 15 The
separation of these concepts though is not, by itself, concrete evidence that unilateral
non-forcible measures, not coming within the ILC's doctrine of countermeasures, are
unlawful. This issue will be returned to in particular when looking at the wider
concept of economic coercion.
Retorsion is conduct that does not involve the suspension of international obliga-
tions owed by the injured State to the responsible State, even though usually taken in
response to unlawful acts on the part of the responsible State. 'Acts of retorsion may
include the prohibition of or limitations upon normal diplomatic relations or other
contacts, embargoes of various kinds or withdrawal of voluntary aid programs'. 16
Countermeasures could take the form of a suspension of a trade agreement; whereas
acts of economic retorsion are based on a State's freedom to trade or not to trade
(or deal more generally) with other States. 'An act of retorsion is an unfriendly
but nevertheless lawful act by the aggrieved party against the wrongdoer. As such
retorsion is not circumscribed by the international legal order' (Zoller, 1984, p 5).
Some writers, however, see countermeasures as encompassing both non-forcible
reprisals and retorsion (Abi-Saab, 2001, p 38, citing Schachter, Vir ally, and Leban in
support). In general Abi-Saab sees them as 'reactions permitted in international law to
14 See 'Lotus', Judgment No 9, 1927, PCl], Ser A, No 10 at p 18.
15 See the writings of earlier ILC Rapporteurs where these terms were used without real distinction;
Arangio-Ruiz, 1994, p 21; Ago, 1979, P 47.
16 Crawford, 2002, p 281.
COUNTERMEASURES AND SANCTIONS
511
illegality' (Abi-Saab, 2001, p 37). However, that view was not adopted by the ILC,
which, at least in its final Articles, keeps the concepts distinct and only concerns itself
with delimiting countermeasures, keeping them apart from retorsion. Furthermore,
the ILC, together with the International Court of J~stice, distinguish countermeasures
from reprisals by saying that countermeasures are instrumental while reprisals are
punitive. 17
Thus measures taken by a State may constitute countermeasures if they arise as a
result of the suspension of international obligations owed to the responsible State.
If they are not the result of the non-fulfilment of an international obligation
owed to the responsible State then they are acts of retorsion. We will consider
later whether this means that victim States have freedom to impose sanctions against
States that have violated international law. At first sight it seems odd that acts of
retorsion which could be more damaging than countermeasures may be acceptable
but this seems to reflect the under-developed state of international law in this area. It
is the case that acts of retorsion, while not governed by a specific bilateral legal
relationship between the responsible State and the injured State, are still governed
by the limitations of necessity and proportionality, and by general principles of
international law, such as those prohibiting intervention or violation of basic human
rights norms. Furthermore, if the doctrine of countermeasures is to make any sense,
retorsion must be a residual remedy in the case of a State injured by a breach of
international law where the injured State does not have any existing specific obliga-
tions to the responsible State that it is able to suspend. It may, in these circumstances,
take limited proportionate non-forcible measures that are an attempt to remedy that
breach.
Cassese defines retorsion as 'any retaliatory act by which a State responds, by an
unfriendly act not amounting to a violation of international law, to either (a) a breach
of international law or (b) an unfriendly act by another State'. He gives examples
of the breaking off of diplomatic relations, discontinuance or reduction of trade/
investment, withholding economic assistance, expulsion of nationals, heavy fiscal
duties on goods from the offending State, strict passport regulations. As can be seen
these measures may be much more damaging than the fairly restrictive doctrine of
countermeasures. Cassese cites as an example of retorsion the measures adopted since
1989 by the US against Burma for its poor human rights record. The United States
suspended Burma's eligibility for trade preferences and export licences for munitions,
as well as prohibiting bilateral aid and new investment (Cassese, 2001, p 244). These
are not characterized by Cassese as countermeasures for 'aggravated responsibility'
(see below), presumably because they were not all in the nature of suspension of
obligations owed by the US to Burma, but neither do they really seem to be acts
of retorsion as suggested by him. Burma's violations of international law were not
directed against the US, nor could they be seen as unfriendly actions towards the US.
This example of State practice and its analysis illustrates both doctrinal confusion
17 GabCikovo-Nagymaros Project (Hungary/Slovakia), Judgment, IC] Reports 1997, p 7, paras 83-85.
-------------- ~--~----
512 ND WHITE AND A ABASS
COUNTERMEASURES AND SANCTIONS
513

as well as practice that does not seem to neatly fit any of the categories mentioned.
Countermeasures must be proportionate. According to the ILC, they 'must be
The US actions against Burma were non-forcible measures (not purely counter-
commensurate with the injury suffered, taking account of the gravity of the inter-
measures as defined by the ILC) taken on behalf of the international community (but
nationally wrongful act and the rights in q~estion'.23 Disprop0rtionate counter-
not authorized by an international organization) to enforce community norms. The
measures give rise to the responsibility of the State taking them. 24 However, there
legality of this type of action will be returned to.
appears to be a contradiction in the approach of the ILC. The issue ought not to
be one of proportionality to the injury caused, because this would suggest that
C. LIMITATIONS UPON COUNTERMEASURES AND OTHER countermeasures are taken to punish the responsible State, thus confusing counter-
NON-FORCIBLE MEASURES TAKEN BY STATES measures with reprisals. As Cassese states 'in current international law the purpose
of counter-measures must be seen in impelling the offende~ to discontinue its wrong-
The doctrine of countermeasures as defined by the ILC is specific. First of all the
ful conduct or to make reparation for it. If this is so, the proportionality must
response to an unlawful act can only be the suspension of an international obligation
be appraised by establishing whether the counter-measure is such as to obtain this
owed to the responsible State. This distinguishes countermeasures from reprisals and
purpose'. This should mean that in certain cases a weak State may be subject to
retorsion. Further, there are numerous other limitations governing the form and
countermeasures that are quantitively less than the injury suffered by a powerful
extent of that suspension. Whether some or all of these limitations are also applicable
State, if the measures are sufficient to bring an end to the illegal act (Cassese, 2001,
to acts of retorsion and reprisal is unclear though it may be suggested that a number
pp 238-289). However, this of course assumes that reprisals, the aim of which is to
are. These will be mentioned below. Of course this assumes that such actions are by punish, are unlawful.
themselves lawful, an issue that will be returned to.
According to the ILC, countermeasures must not violate basic obligations under
Countermeasures must not be forcible. This clearly applies to other types of non-
international law (prohibiting the threat or use of force, protecting fundamental
forcible measures. 18 Furthermore, 'anticipatory non-forcible counter-measures are
human rights,25 concerning obligations of a humanitarian character), and those arising
unlawful; since by definition they precede actual occurrence of breach' (Elagab, 1988,
under jus cogens. Countermeasures should not affect dispute resolution procedures
p 63). The same principle must be applicable to all non-forcible measures taken
that are applicable. Countermeasures cannot be taken to impair consular or diplo-
by States, since they are based on the occurrence of unlawful or unfriendly acts.
matic inviolability. 26 Diplomatic law provides its own legal regime for dealing with
Countermeasures should be directed against the responsible State and not third party
illicit activities by members of diplomatic or consular missions. 27 'If diplomatic
States. 19 This too seems applicable to other non-forcible measures.
or consular personnel could be targeted by way of countermeasures, they would
Countermeasures are temporary and should, whenever possible, be reversible so
in effect constitute resident hostages against perceived wrongs of the sendirIg State,
the future legal relations between victim State and responsible State can be restored. 20
undermining the institution of diplomatic and consular relations'.28 Counter-
If the measures taken punish the responsible State by inflicting irreparable damage on
measures must follow an unsatisfied demand by the injured State that the responsible
it, then they are not countermeasures?1 Such punitive measures would appear to be
State comply with its international obligation(s). The injured State must also notify
non-forcible reprisals, the legality of which is not discussed by the ILC, but that body's
the responsible State that it intends to take countermeasures and offer to negotiate,
movement away from the notion of punishment as the rationale for countermeasures,
except in the case of urgent countermeasures necessary to preserve the injured State's
indicates uncertainty about the legality of reprisals. This is supported by the Inter-
rights (eg, temporary stay orders or the temporary freezing of assets).29 Further they
national Court's statement in the Gabcikovo case that the purpose of countermeasures
must be suspended if the wrongful act has ceased and the dispute has been submitted
is to 'induce the wrongdoing State to comply with its obligations under international to a tribunal with bindirIg authority.30
law, and that the measures must therefore be reversible'.22 It is noticeable that James
Crawford, the present Rapporteur, has stated that the 'international community has
23 Article 51,ARSIWA.
moved away from the classical terminology of reprisals and towards the notion of
24 Crawford, 2002, p 294. See Naulilaa case, (1928) 2 RlAA 1052 (disproportionate); GabCikovo-
countermeasures as temporary, reversible steps' (Crawford, 2001, p 66). Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, para 87 (disproportionate); Air
Services Agreement case, (1978) 18 RlAA 416 (proportionate).

18 Article 50(1)(a), ARSIWA; Article 2(4) UN Charter; Declaration on Friendly Relations, GA Res 2625, 24 25 Especially the non-derogable rights contained in the International Covenants-Crawford, ILC, p 289.
See also CESCR General Comment No 8 (1997), UN Doc E/C.12/1997/8, 5 December 1997, paras 1 and 5.
October 1970. 26 ARSIWA Article 50(1)(2).
19 Article 49(1)(2), ARSIWA.
27 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, paras 84--86.
20 Articles 49(2)(3), 53, ARSIWA. 28 Crawford, 2002, pp 292-293.
21 Crawford, 2002, p 287. 29 Ibid, P 299.
22 GabCikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, paras 56-57. 30 ARSIWA, Article 52.
 ND WHITE AND A ABASS
514
The above limitations are arguably applicable to other more controversial claims to
non-forcible measures, with the exception of the suspension of diplomatic relations
that seems to be an accepted act of retorsion in international relations. This seems to
contradict the 'resident hostages' argument mentioned above. This is illustrative of
the problem in defining countermeasures without addressing the issue of retorsio~. In
general Elagab states that in the case of a 'self-contained regime' where such a regune
'possesses its own mechanism for redressing the wrongful conduct, countermeasures
should not be imposed' (Elagab, 1988, p 218). He refers to diplomatic law, but th.e
same can be said of the WTO's procedures for dispute settlement, followed, If
necessary by a form of institutionalized countermeasures. Although they look like
countermeasures, they are not measures imposed by dint of custom but by reason
of the GATT treaty regime. They are thus similar in appearance to countermeasures
but the source of the rights and duties is the special treaty regime, and the limitations
may be different. . that 'the current state of international law on countermeasures taken in the general or
Thus countermeasures may be excluded by special rules (eg, a treaty which
states that its provisions cannot be suspended)31 or a regime which dictates the way in
which measures are taken by victim States (the primary example is the WTO).32
Countermeasures are thus said to be 'residual' remedies,33 reflecting the fact States
may choose to move away from a decentralized system of self-help.
D. COUNTERMEASURES AND THIRD STATES
In this section, we will concentrate on the question of whether countermeasures
as defined by the ILC can be taken by States other than the State directly injured.
The issue of whether third States can also take other forms of non-forcible measures
will be returned to in the next section. According to the ILC, countermeasures are
normally taken by a State injured by an internationally wrongful ~~ of another St~te.
However, responsibility may be invoked by States other than the mJured State actmg
in the collective interest. 34 Responsibility is not invoked by these third States as a result
of injury to themselves but as a result of breach of an obligation t~ ~ group ~f States of
which it is a member-obligations erga omnes partes (eg, regIOnal envIronmental
or human rights regimes), or to the international community as a whole-obligations
erga omnes (eg, laws prohibiting genocide, aggression, slavery, racial discrimination,
self-determination).35
However, the ILC is careful to distinguish third States invoking responsibility from
31 EU Treaties provide for their own system of enforcement-Crawford, 2002, P 29l.
32 The WTO system requires authorization from the Dispute Settlement Body before a member can take
measures against another-Crawford, 2002, P 29l.
33 Crawford, 2002, p 283.
34 Ibid, P 276. . .
35 ARSIWA, Article 48(1). See Barcelona Traction, Light and Power Company, Ltmtted, Second Phase, Judg-
ment, ICJ Reports 1970, p 3, paras 33-34; East Timor (Portugal v Austrlia), Judgment, ICJ Reports 1995, p 90,
para 29.
------------
COUNTERMEASURES AND SANCTIONS 515
them taking countermeasures. The latter issue is left much more open. Such third
States can demand cessation and performance in the interests of the injured States or
the beneficiaries of the obligation breached. 36 'The question is to what extent these
States may legitimately assert a right to react against unremedied breaches',37 viz. by
taking countermeasures against the responsible State. One problem in taking collect-
ive countermeasures is that of proportionality, though it is difficult to prove a viola-
. tion of this principle if the aim is to stop a breach of an obligation owed erga omnes. In
the absence of institutional sanctions imposed for example by the UN Security Coun-
cil under Chapter VII of the Charter,38 the legality of such measures is in doubt, though
there seems to be some State and institutional practice to support the proposition that
such measures are allowed. However, practice is inconsistent, making the drawing of
any conclusions as to opinio juris extremely difficult if not impossible.
Indeed, the practice mentioned in its commentary by the ILC leads it to conclude
collective interest is uncertain. State practice is sparse and involves a limited number
of States. At present there appears to be no clearly recognized entitlement of [third]
States ... to take countermeasures in the collective interest'. 39 Hence Article 54 of the
ILC Articles states that a third State's right to take 'lawful' measures is not prejudiced
by any of its other provision on cou~termeasures. What are lawful measures in this
context is an issue that is, in effect, left open.
The ILC40 mentions the VS prohibition in 1978 of export of goods and technology to
Uganda and all imports from Uganda in response to alleged genocide by the govern-
ment of Uganda. This certainly appears to be a response to a breach of an obligation
owed erga omnes, but it did not only concern the suspension of US treaty obligations,
and therefore goes beyond countermeasures as defined by the lLC. Again, as with the
case of Burma above, they appear to be unilateral non-forcible measure, in effect
sanctions imposed to enforce community norms. The ILC also refers to measures
taken by Western States against Poland and the Soviet Union in 1981 in response to
internal repression by the Polish government. Measures included suspension of treaty
landing rights for scheduled civilian aircraft. These actions seemed to take the form of
countermeasures but were they a response to a breach of an obligation owed erga
omnes? It is still difficult, though not impossible, to argue for a right to democracy in
the twenty-first century, but in 1981 such an argument was mainly a political, not
legal, one. The US countermeasures in the form of the suspension of treaty landing
rights against South African airlines in 1986 seem to be a clearer example given the
odium attached to the system of apartheid.
The examples cited by the ILC of non-forcible measures imposed by regional
organizations, mainly the EC, illustrates the even greater legal confusion when the
analysis of such measures is elevated from the purely bilateral. In 1982 the EC, along
36 ARSIWA, Article 48(2).
37 Crawford, 2002, p 302.
38 Ibid. 39 Ibid, p 305. 40 Ibid, pp 302-304.
---------------

ND WHITE AND A ABASS
with Australia, Canada, and New Zealand adopted trade sanctions against .ru:ger:tma
in response to its invasion of the Falklands. Before the GATT, the EC Justified
these as measures taken by the 'Community and its Member States' on the basis
of their 'inherent rights', meaning the right of self-defence (Zoller, 1984, p .105). In
1990 (before the UN Security Council imposed sanctions) the EC and US nn~osed
trade sanctions and froze Iraqi assets in response to Iraq's invasion of KuwaIt. In
both of these episodes the non-forcible measures were in response to a breach of
an obligation owed erga omnes (aggression) but they seeme~ to e~end beyond
mere countermeasures to take the form of multilateral economIC sanctIOns. In 1998,
in response to the crimes against humanity being committed in Kosovo, ~e ~C
imposed a flight ban and froze Yugoslav assets in response to the humamtar~an
crisis in Kosovo. In some countries the flight ban was a product of the suspenSIOn
of treaty rights. The suspension of treaty rights and the freezing of assets seem to be
clear examples of countermeasures undertaken in response to a b:e~c~ of a funda-
mental norm. Nevertheless, the European Organization does not Innit Itself to clear
countermeasures in other instances. In response to violence that marred the run-up
to the Presidential elections in Zimbabwe in March 2002, the EU imposed a travel
ban, a freeze on financial assets, and an arms embargo. The Commonweal~, on the
other hand, simply suspended Zimbabwe from membership, a power that IS purely
institutional. Both institutional responses do show, however, that there is practice that
suggests that denial of democracy could now be seen as a brea~h of. an obligation
owed erga omnes. It is too early to state that this has crystallIzed mto .a rule of
customary law given the uncertainty about the legal status of third party
countermeasures.
What the above examples show is that State and institutional practice is confused
in a number of ways. First the wrongful acts involved are not always clearly breaches
of obligations owed erga omnes. Secondly, non-forcible measures, especially trade
sanctions are not always a product of non-performance of existing obligations.
Thirdly, some of the practice is institutional rather than by individual ~tates, .~ough
the line between them is not clear. Zoller expresses doubts about the nnpositIon of
sanctions by regional organizations, in the sense of whether they are actually deploy-
ing sanctions as international legal persons, or whether, in reality 'the organization
acts less as an organization than as a collectivity of the members states as a whole.
When countermeasures are undertaken under these circumstances, it is legally hazar-
dous to consider that they can genuinely be attributed to the organization as such'
(Zoller, 1984, p 104). Zoller views the EC measures taken against Argentina in 1982
following its invasion of the Falklands, and against the Soviet Union. ~ 1981 follow~ng
the imposition of martial law in Poland, as a product of pohtIcal cooperatIOn
by States, despite the fact that the measures against Argentina were imposed by a
regulation adopted under Article 113 of the EEC Treaty (Zoller, 1984, pp.1O~105).
Crawford casts further doubts on the role in international law of obhgatIOns erga
omnes. The ICJ inspired the concept in the Barcelona Traction case but in a dictum
wholly inapplicable to the case. When the Court was faced in the Second South West
COUNTERMEASURES AND SANCTIONS 517
Africa41 case and the East Timor case with concrete arguments based on erga omnes, it
shied away from the application of the concept (Crawford, 2001, p 64). This may
indicate doubts about whether collective measures taken outside the UN, by other
organizations or third States, can constitute lawful countermeasures. In reality they
are a modern form of non-forcible measure or sanction that are outside the narrowly
defined countermeasures regime. The legality of these measures will be returned to.
If an analogy is drawn with the use of force in international relations, there is clear
legality at each end of a spectrum, which has the unilateral rights of States to take
forceful action in self-defence at one end, and the use of force taken under Security
<;:;ouncil authority at the other. In between these hvO poles we have lack of clarity.
'For example, actions in collective defence blur into actions taken under UN authority,
as in the cases of Korea in 1950 and Kuwait in 1990. Furthermore, action is taken
by regional organizations to deal with threats to the peace without any clear UN
authority, for example NATO's bombing of the FRY in 1999 and ECOWAS's involve-
ment in Liberia in the early 1990s. Moving to the sphere of non-forcible measures a
similar clouded picture emerges. At one end of the spectrum, unilateral counter-
measures as defined by the ILC and the Air Services arbitration are clearly lawfuL
At the other end are 110n-forcible measures or sanctions adopted by the Security
Council, clearly lawful under the UN Charter. In between we have the grey area of
~easures taken by States which are more coercive or punitive than those allowed
under countermeasures, measures taken by third States, and measures taken by other
organizations without UN authority.
On the issue of measures taken by third States, these can only be taken in response
to a breach of an obligation owed erga omnes or erga omnes partes. Here there is an
overlap with the activities of regional and other organizations. The lack of clarity on
the legality of individual third States having such rights leads those States (as the
practice of the EC above shows) to seek authority and legitimacy from international
organizations. The question whether some, or all, intergovernmental organizations
can take such measures will be returned to.
Cassese suggests that in the case of countermeasures taken by third States in
response to 'aggravated responsibility' (ie, breach of fundamental rules), then a
precondition is that they have sought to bring the matter before an international
. organization. This can be the UN or a regional organization, with a view to settlement
or the adoption of sanctions. This precondition is 'dictated by the inherent nature of
this class of responsibility. This responsibility arises out of a gross attack on com-
munity or "public" values. The response to the wrongdoing must therefore be as much
as possible public and collective'. However, 'if those bodies take no action, or their
action has not brought about cessation of the wrong or adequate reparation ...
all States are empowered to take peaceful counter-measures on an individual basis'
(Cassese, 2001, p 204). Although this seems to be a useful suggestion-it is more by
way of de lege ferenda, given that States do not always report to IGOs first. It also
41 South West Africa, Second Phase, Judgment, Ie] Reports 1966, p 6.
 ND WHITE AND A ABASS
shows that Cassese certainly does not think that regional or indeed individual
countermeasures are subject to any need for UN authorization.
It certainly seems to be the case that regional organizations have in their practice
taken non-forcible measures against member and non-member States without
seeking authority from the Security Council. Practice by the OAS against Cuba and
Venezuela in the early 1960s and against Haiti in the early 1990s,as well as the
measures taken by the EC against Yugoslavia in the 1990s, all without UN authority or
preceding UN measures, suggest that the requirement in Article 53 of the UN Charter
that 'enforcement action' requires the authorization of the Security Council does
not cover non-military, as opposed to military, coercive measures. Of course, if the
Security Council goes on to take non-forcible measures under Article 41 of the UN
Charter after determining that the situation of aggravated responsibility is also a
threat to the peace, 'the Security Council takes over, and individual States may only
take action to the extent allowed by the UN Charter (individual or collective self-
defence), or recommended, authorized, or decided upon by the Security Council'
(Cassese, 2001, p 204). This is achieved by dint of Article 25 of the Charter, which
makes Security Council decisions binding on members of the UN. Article 103 gives
obligations arising out ofthe UN Charter pre-eminence over obligations arising under
any other international treaty, though it is not clear that this affects member States'
customary rights.
In considering practice, Cassese cites a healthy trend towards seeking collective
measures through international organizations-Southern Rhodesia, Iraq, Libya,
Liberia, Mghanistan - for instance in the case of the Security Council; and by
regional organizations mentioned above. States have imposed them unilaterally, but
he suggests that this is a rarity. 'One cannot fail to note the reluctance of many States
to "interfere» in matters of no direct interest or concern for them; in other words their
proclivity not to pursue community interests' (Cassese, 2001, p 205).
III. ECONOMIC COERCION
While there does appear to be a general trend towards seeking collective endorsement
of non-forcible measures for breach of community norms, this still leaves the issue
of measures imposed unilaterally by States beyond those allowed by the doctrine of
countermeasures. Cassese allows for this in relation to breach of community norms
as long as organizational avenues have been exhausted, but this still leaves open
unilateral actions taken in response to ordinary breaches of international law. As
suggested above an application of the doctrine of countermeasures to non-forcible
reprisals would indicate their illegality, since the concept of lawful countermeasures
does not include the element of punishment. It has been suggested that retorsion, on
the other hand, remains as a residual remedy when no countermeasures in the strict
sense are available to injured States.
COUNTERMEASURES AND SANCTIONS 519
However, while the ILC has defined lawful countermeasures with a high degree of
abstraction and in quite a narrow way thereby implicitly excluding reprisals and, it is
argued above, retorsion except in a residual sense, the reality of international relations
seems to be very different. Powerful States do not always appear to be constrained by
the niceties of the requirements of countermeasures, they do not simply suspend
obligations, they do not simply seek to remedy the illegality, what they seek is coercion
and punishment by the application of sanctions often of an economic nature, not
countermeasures. While preferring a collective umbrella for these actions if possible,
the United States, for example, is prepared to go it alone if necessary. Its sanctions
regimes against Iran first imposed in 1979 and those against the Soviet Union in 1980
are cases in point. Neither could be authorized by the Security Council, and so the
US imposed them unilaterally. This has led one leading US commentator to state that
'the suggestion that economic sanctions are unlawful unless approved by the Security
Council (or by a regional organization such as the OAS) is obsolete'. Furthermore,
he states that 'sanctions have become sufficiently common-and often better than
the alternatives-to have become tolerated (not to say accepted) as a tool of foreign
relations' (Lowenfeld, 2001, p 96). Furthermore the US practice includes the
imposition of extraterritorial sanctions.42
This reflects a pre-1945 view of international law. Writing in 1933 Lauterpacht
stated that 'in the absence of explicit conventional obligations, particularly those laid
down in commercial treaties, a state is entitled to prevent altogether goods from a
foreign state from coming into its territory'. The prevention of trade from reaching
the responsible State seemed equally permissible in the pre-Charter period. Further,
this is justified on the basis that 'in a community from which war in its technical sense
has been eliminated and which has not reached the stage of moral perfection, pacific
means of pressure are unavoidable. To prohibit them would mean to court the more
radical remedy of war' (Lauterpacht, 1933, pp 130, 140). In a modern sense this still
appears to be the case, subject to the requirements of the multilateral regime
of the WTO. Non-forcible measures, ranging from countermeasures in the ILC sense
to punitive economic sanctions, can be justified under the view that 'restrictions
upon the independence of States, cannot be presumed' ,43 in other words on the basis
of a State's freedom to trade. However, this basic tenet of sovereignty has to be
balanced against another tenet-that of non-intervention. The sovereign freedom
of a State must always be balanced against the infringement of the sovereignty of
other States.
What are the limitations upon non-forcible measures that go beyond the doctrine
of countermeasures as defined by the ILC and the Air Services case? To take two
obvious instances-the Arab oil embargo of 1973-74, and the US embargo against
Cuba in place since 1960. These are much more coercive, hurtful, and intrusive than
42 See US Helms Burton Act 1996 and the D'Amato-Kennedy Act 1996 discussed in Cassese, 2001,
p 238.
43 'Lotus', Judgment No 9, 1927, PCl], Ser A, No 10 at p 18.
520 ND WHITE AND A ABASS
the regime of countermeasures suggested by the ILC. Their motivations were
political-to support the Palestinians and to undermine a communist regime respec-
tively-they were not simply about the suspension of obligations in response to an
illegal act in order to try and remedy that act.
While suggestions that these measures might breach Article 2(4) of the Charter,
since force in that provision remains undefined (Paust and Blaustein, 1974, p 417)
seem to be stretching the axioms of treaty interpretation to breaking point, they
do appear to breach the law as stated in several General Assembly resolutions that
seem to prohibit coercive economic intervention that is intended to undermine the
territorial integrity or political independence (and arguably other sovereign rights) of
the target States. 44 It is interesting to note too that the General Assembly has regularly
called for the ending of the US economic, commercial, and financial embargo against
Cuba and in so doing, it recalls the principle of non-intervention. 45 The problem
is that State practice does not appear in conformity with this law (Bowett, 1972b, p 4).
Lillich suggests a (general principle that serious and sustained economic coercion
should be accepted as a form of permissible sdf-help only when it is also compatible
with the overall interests of the world community, as manifested in the principles of
the UN Charter or in decisions taken or documents promulgated thereunder' (Lillich,
1975, p 366). However, this is suggested by way of de lege ferenda. Furthermore, the
approach advocated by Lillich and Bowett is that non-forcible, principally economic
activity and measures must be presumed to be lawful unless there is evidence of intent
by the sanctioning State-(measures not illegal per se may become illegal only upon
proof of an improper motive or purpose' (Bowett, 1972b, pp 3-7). Given the unclear
state of international law, that presumption could equally be replaced by the opposite
proposition that such measures that interfere with the sovereign rights of another
State are unlawful-that is certainly the Assembly's view.
In considering the state of customary law on the question of economic coercion,
it is necessary to recall the International Court's approach that for a rule to be
customary (the corresponding practice [need not] be in absolute rigorous conformity
with the rule'. Further, (the conduct of States should, in general, be consistent with
such rules, and that instances of State conduct inconsistent with a given rule should
generally be treated as breaches of that rule, not as indications of the recognition of
a new rule'.46 The Assembly's general pronouncements on the illegality of economic
coercion and its attitude to the clearest instance of a continuing punitive embargo
(against Cuba) together suggest the illegality of such activities.
However, one must not forget that the International Court also stated that a
customary rule is reinforced if the State acting against it actually tries, no matter how
44 GA Res 2131, 21 December 1965 (Non-intervention); GA Res 2625,24 October 1970 (Friendly Rela-
tions); GA Res 3171, 17 December 1973 (Permanent Sovereignty over Natural Resources); GA Res 3281, 12
December 1974 (Charter of Economic Rights and Duties of States).
45 Starting with GA Res 47/19 (24 November 1992). For latest see GA Res 56/9 (4 December 2001).
46 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America),
Merits, Judgment, ICJ Reports 1986, p 14, para 186.
COUNTERMEASURES AND SANCTIONS
521
disingenuously, to fit its conduct into the rule or its exceptionY There is no indica-
tion that the US views its actions against Cuba, for instance, as unlawful. Initially,
the Cuban embargo was justified by the US as a response to Cuban support
for insurgencies in other States. However, the underlying justification for the con-
tinuation and intensification of the non-forcible measures was ma·de clear by the
US in 1991, when it stated that (every government has a right and responsibility to
choose the governments with which it wishes to have commercial and political
relations'. It stated further that (bilateral trade is first and foremost a question of
national sovereignty. Governments make decisions to initiate trade and to restore
trade based on national interest'48 (Krinsky and Golove, 1993, pp 37, l35, 233). In
other words, the US is stating that is has the clear right to take these non-forcible
measures. Such measures are normally economic, hence the term economic coercion,
and can include trade, financial, commercial, and arms embargoes, but can
include non-economic aspects such as political, diplomatic, sporting, cultural, and
educational ties.
Elagab considers State practice and Assembly resolutions and concludes rather
ambivalently (but perhaps accurately) that (there are no rules of international law
which categorically pronounce either on the prima-facie legality or prima-facie
illegality of economic coercion'. However, he is of the opinion that this does not leave
economic coercion unregulated by international law, rather that (individual rules of
international law may be applied to determine the legality of economic conduct on a
given occasion'. He seems to suggest that while non-forcible measures may involve
some element of coercion, their regulation is subject to a separate legal regime
(Elagab, 1988, pp 212-2l3), though this regime is subject to limitations including
principles of international law. Thus the sanctions against Cuba by the US go far
beyond countermeasures (and, indeed, reprisals and retorsion); they amount to
coercion. This is then subject to applicable rules of international law, such as jus cogens
and fundamental human rights standards, and, it is argued here, by the principle
of non-intervention, which (despite significant erosion over the years) has a core
element, prohibiting coercion of political independence.
If a State wishes to overcome the principle of non-intervention then it has to
seek authority from an international organization to impose sanctions, even in the
case of breaches of obligations owed erga omnes, unless the State confines itself
to countermeasures. The UN clearly has the competence to override the domestic
i':lrisdiction limitation in Article 2(7) when acting under Chapter VII of the UN
5=harter. The issue of whether other international organizations have this competence
will be turned to. It is worth noting at this point that the Arab oil embargo of 1973-74
was imposed by the Organization of Arab Oil Producing Countries (OAPEC).
Does this institutional involvement cure the illegalities with which the action was
otherwise tainted?
47 Ibid.
48 UN Press Release USUN 90-(91), 13 November 1991.
522 ND WHITE AND A ABASS
IV. SANCTIONS
A. DEFINITION OF SANCTIONS
Non-forcible countermeasures, reprisals, and acts of retorsion clearly continue to
exist in international relations. In general, the analysis so far has shown what seems to
be a presumption against the legality of non-forcible measures wider than counter-
measures as defined by the Air Services case, unless they are imposed for breaches
of community norms (erga omnes), normally through institutional mechanisms.
Reprisals and even acts of retorsion, if they are imposed with the purpose of punish-
ment or coercion of the sovereign will of the target State, and by means that are
designed to achieve these ends, are illegal. Measures of punishment and deeper
coercion than those necessary to force the responsible State to stop its illegal act vis-a-
vis the State taking measures, are best seen as sanctions. Of course, in a general sense
all measures designed to enforce the law can be seen as sanctions. Indeed, the problem
in international law is the lack of a system to enforce its rules.
There do exist sanctions behind the law. The real difference in this respect between muni-
cipal and international law is not that one is sanctioned and the other is not, but that in the
one the sanctions are organized in a systematic procedure and that in the other they are left
indeterminate. The true problem for consideration is therefore not whether we should try to
create sanctions for international law, but whether we should try to organize them in a
system (Brierly, 1932, p 68).
Having established this general usage of the term, there is a specific difference between
the usage of the terms countermeasures and sanctions in modern international law.
Zoller is clear on this when she states that '[a]s opposed to countermeasures, sanc-
tions are very specific measures. A countermeasure is a measure which has temporary
effects and a coercive character, while a sanction has final effects and a punitive
character. Moreover, sanctions have an exemplary character directed at other
countries which countermeasures do not have'. Further, ' ... countermeasures should
always be temporary measures, they draw a line between the consequences of unlaw-
ful conduct in international law; they underline the difference between them and
those measures which impose a final harm on the defaulting party and which
could properly be designated by the term "sanctions" '. For this reason, '[c]ounter-
measures ... have to be placed within reparation and outside punishment' (Zoller,
1984, pp lO6,75).
Furthermore, as has been argued above, the adoption of unilateral sanctions in the
sense used by Zoller is unlawful. Sanctions to be lawful have to be pursued by inter-
national organizations, representing the 'centralized mechanisms' hinted at by Brierly
(Gowlland-Debbas, 2001, p 6). Abi-Saab defines sanctions as 'coercive measures taken
in execution of a decision of a competent social organ ie an organ legally empowered
to act in the name of the society or community that is governed by the legal system'.
COUNTERMEASURES AND SANCTIONS 523
He distinguishes them sharply: from 'coercive measures taken individually by States
or group of States outside. a determination and a decision by a legally competent
social organ', including countermeasures. These 'are manifestations of "self-help"
or "private justice", and their legality is confined to the very narrow limits within
which "remnants" of "self-help" are still admitted in contemporary international
law' (Abi-Saab, 2001, p 32). Cassese notes that there is 'a growing tendency towards
the adoption of "sanctions" by international organizations, particularly as a reaction
to serious and large-scale breaches of international law'. He distinguishes such
measures from countermeasures. 'Clearly, while counter-measures are actions taken
by individual States, sanctions are collective responses undertaken within an insti-
tutional framework' (Cassese, 2001, p 234). This development corresponds to the
growth in recognition of community interests, representing the 'creation of inter-
national institutional responses to violations of such core norms' (Gowlland-Debbas,
2001, p 7).
Sanctions imposed by the Security Council under Article 41 of the Charter can
include full or partial trade, financial, commercial, and arms embargoes, and are
therefore, generally, of an economic nature. Gowlland-Debbas argues that although
Chapter VII measures imposed by the Security Council were not intended to be
restricted to cases of non-compliance with international law; the practice of
the Council has moved considerably towards dealing with responsibility of States
for breaches of international law (Gowlland-Debbas, 2001, p 9: cf Zoller, 1984,
pp 106-107). The determination of guilt against Iraq for its invasion of Kuwait, and
the requirement for it to pay compensation is a case in point.49 Before taking action
under Chapter VII, the Council is required by Article 39 of the UN Charter to
determine the existence of a 'threat to the peace', 'breach of the peace', or 'act of
aggression'. The Council can thus deal with threats to or breaches of the peace that do
not constitute internationally wrongful conduct. Aggression would appear to be more
a determination of breach of international law, though the history of the definition
of aggression shows that there is a reluctance to delimit the Security Council's com-
petence in purely legal terms. Thus it is true to say that sanctions imposed by the
UN serve· much wider purposes than the concept of unilateral, or even collective,
countermeasures as defined by the ILC.
One question is whether economic measures taken by regional organizations are
subject to the legal regime governing sanctions (as with the UN) or the legal regime
governing countermeasures. Countermeasures are not punitive, they are taken
to ensure that the responsible State ceases its violation, and, if applicable, provides
reparation. They are instrumental-their aim is to achieve a restitution of a legal
relationship, they are not punitive (Crawford, 2001, p 61). Thus there is clear
autonomy for regional organizations to authorize the imposition of countermeasures
against a State for breach of either regional or international community norms.
Action taken by the regional organization outside its membership must be justified as
49 SC Res 687 (3 April 1991).
52 4 ND WHITE AND A ABASS
COUNTERMEASURES AND SANCTIONS 52 5

countermeasures for breach of an international community rule, not merely a

countermeasures within their region on the basis of regional laws (erga omnes
regional one. Question marks are raised against action beyond countermeasures, for
partes). In practice, regional organizations have taken wider non-forcible measures or
example measures designed to be punitive or aimed at achieving a change in regime,
s~ctions to e.nforce obligations owed erga omnes as well as erga omnes partes, though
given the requirements of Article 53 of the UN Charter. However, there is institutional
thIS can be SaId to have occurred only because the UN has ultimately not condemned
practice by the EC and OAS, reviewed above, which suggests that Article 53 does
it either specifically or in a general sense.
not pose an absolute prohibition on unauthorized regional action, subject to the
If ~e Security Councilor the General Assembly only recommend sanctions, it is
caveat that the Security Council still has the power to condemn autonomous regional
q~estlOnable whether this entitles States (if they choose) to suspend treaty obligations.
activity as a breach of the Charter.
SInce ~~re are no legal obligations created by a recommendatory resolution (except
perhaps a duty to consider), Articles 25 and 103 do not come into play, although some
B. LIMITATIONS UPON SANCTIONS commentators argue that the authority of the UN is sufficient to entitle member
~tates to breach trade agreements (Lowenfield, 2001, p 97). Even mandatory sanctions
. Article 103 of the UN Charter provides that mandatory sanctions resolutions adopted
Imposed by the Security Council do not ensure that all members comply. The
by the Security Council under Article 41 of the UN Charter result in obligations for
sanctions cO.mmittees established by the Council to oversee implementation try
member States that prevail over obligations arising under other international treaties.
to ensure thIS but there has been little attempt to force non-complying States into
The Security Council has adopted Article 41 sanctions in a number of instances (for
action. There is generally no real investigation into the effective execution of sanctions
example Southern Rhodesia, South Africa, Iraq, the Federal Republic of Yugoslavia,
legislation by those States purportedly complying with Council decisions.
Libya, Somalia, Haiti, Sudan, UNITA areas of Angola, Liberia, Sierra Leone, Rwanda,
I~ is only .with the adoption of comprehensive regimes, especially that imposed
and Afghanistan) (Conforti, 2000, pp 185-194). Sanctions regimes have proliferated
agaInst Iraq In 1990, that the focus has turned to the limitations upon sanctions in
since the end of the Cold War, with the comprehensive regime against Rhodesia
terms of their effects. The Committee on Economic, Social and Cultural Rights
(1966-79) and the arms embargo against South Africa (1997-94) being the only
produced an opinion in 1997 that stated that sanctions regimes should not violate
instances of mandatory sanctions imposed by the Security Council during the
basic economic, social, and cultural rights, on the basis that unlawfulness of one kind
Cold War. It has also adopted measures directed at stopping assistance to terrorists in
should not be met with unlawfulness of another.51 Of course, the UN may impose
the wake of the attacks against the United States on 11 September 2001. 50 These
sanctions not on the basis of a breach of international law but with the aim of
measures are binding on all States and are directed at activities (for example financing
restoring peace and security. It must be the case that in these situations, a fortior~ it
terrorists) rather than the past sanctions regimes that were binding on all States but
must protect the human rights of the target State's population. If the International
were targeted at certain States, including those allegedly supporting terrorism (Libya,
Court actively reviews a sanctions regime in the future-a possibility raised by the
Sudan, and Afghanistan).
Lockerbie cases, 'considerations of proportionality might be examined by the Court'.
As a consequence of UN sanctions regimes, member States may be required to
'If a particular form of sanctions results in injury to innocent civilians or causes
suspend some of their treaty relations with the target State-eg, trade treaties or civil
ser~ous harm to the environment and has no discernible impact on the targeted
aviation treaties. Article 103 of the Charter provides a dispensation for implementing
delinquent regime, would it be improper for the Court to say that the measures
States from the performance of these treaty obligations (Gowlland-Debbas, 2001,
taken are disproportionate to the goals to be achieved?' (Dugard, 2001, pp 88-89).
p 18). The justification for this must be that the UN was established, or has become
In reality there are two limitations here, namely those of human rights norms as well
recognized, as having the competence to uphold and protect community norms, and
as the general principle of proportionality, although the two are closely related.
can therefore direct a collection of States to take measures which would otherwise be
Sanctions regimes must not cause serious human rights violations, though causation
unlawful. This partial constitutionalization would also suggest that non-members
is notoriously difficult to prove in these situations, especially when sanctions regimes
should also comply with UN directives, certainly to the extent that the Council
always contain an exception for humanitarian supplies. In addition, they must be
requires them to take action against breaches of fundamental rules. Requiring
proportionate to the end being aimed at, either the restoration of peace and security
non-member States to take action beyond that is problematic, although Article 2(6)
. by the withdrawal of an aggressor State,52 or some specific acts that would lead
of the Charter suggests that non-member States should comply if this is deemed
to the termination of a threat to the peace. For example in the case of Libya, this
necessary to maintain international peace and security. It is questionable whether
amounted to the handing over of the two suspects and the renunciation of terrorism
other organizations have this competence in theory, though they may take collective

51 General Comment No 8, UN Doc E/C.1211997/8, (1998) 5 IHRR 302.

50 SC Res 1373 (28 September 2001).
52 SC Res 661 (6 August 1990) (Iraq).
52 6 ND WHITE AND A ABASS COUNTERMEASURES AND SANCTIONS 527

by Libya. 53 In the case of Rhodesia, the first attempt by the UN at a comprehensive proportionality). Non-military sanctions imposed by the UN Security Council
sanctions regime,54 the aim was to end white minority rule in that country. under Chapter VII are lawful (subject to the limitations of human rights and pro-
However, to adapt Zoller's words, it is true to say that '[i]n the field of counter- portionality). This would suggest that the topic dealt with under the title of this
measures and law enforcement, the international legal order has not yet reached a chapter 'Countermeasures and Sanctions' is straightforward-unfortunately it is not.
very advanced stage. Most of the time, as the rain in the New Testament, [sanctions] The clashes between the continuance (at least in the non-forcible realm) of self-help
draw no distinction between the just and the unjust; they affect both the state and its with greater centralization in the post-Charter era; combined with the perennial
citizens, or more precisely the state through its citizens. This situation is a direct result clash between State's freedom of action and the principle of non-intervention, means
of the primitive doctrine of collective responsibility' (Zoller, 1984, p 101). The Iraqi that much of the area in the middle between countermeasures and UN sanctions
citizens are suffering because of the guilt of their government. The response has been is unclear. However, the above analysis shows that measures in that space are, on
to modify and target sanctions more accurately on those who are really responsible- balance, illegal, with the probable exceptions of countermeasures imposed by third
the leaders of the regimes. States for breaches of obligations owed erga omnes or erga omnes partes, and retorsion
The development of 'smart sanctions' (Cartwright and Lopez, 2000, pp 4-5) is at in a residual sense. Such measures can be taken through organizations other than the
an early stage,55 and the question of whether they will be effective in achieving UN as can more punitive or coercive economic sanctions, subject to censure by
their aims by targeting the regimes and leaders of States as well as individuals such as the Security Council, or arguably, the General Assembly. In convincing the world
terrorist suspects while alleviating the suffering of the civilian population remains to of the legality and therefore the legitimacy of non-forcible measures States are best
be seen. Indeed, in terms of success, sanctions in their raw form rarely achieve their advised to stick to the doctrine of countermeasures. If they want to take deeper more
primary purposes. Sometimes it is the combination of econorrllc and military punitive or coercive measures, they should seek authority of a regional organization,
measures that produces the required change in the targeted State; for example and preferably, though not necessarily, the UN. The requirement of convincing
Rhodesia (guerrilla campaign), Haiti (threat of force by the United States), Serbia (use an organization attempts to ensure that such measures are taken for the purpose of
of force by NATO and Muslim/Croat army), and Iraq (Coalition action). On other protecting a community norm, and are not taken out of pure self-interest. Thus,
occasions it is the combination of sanctions plus diplomacy, as in the majority of although there may be remaining doubts about some of the legal conclusions drawn
other cases of sanctions mentioned above. Thus it appears that economic sanctions here, there is no doubt that the legitimacy of non-forcible measures in international
are not by themselves an alternative to military coercion (or indeed diplomacy), relations is vastly increased if they are channelled through a competent international
but must be used in combination with other foreign policy tools. Normally, they organization.
must be used in combination with diplomacy, only exceptionally should they be
used in combination with military action when States are acting under the right of
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AGO, R (1979), 'Eighth Report', Yearbook of BULL, H (1992), 'The Importance of Grotius
the ILC, vol II, part 1,47. in the Study of International Relations',
V. CONCLUSION in H. Bull et al., Hugo Grotius and
ARANGIO-RUIZ, G (1994), 'Counter-
International Relations (Oxford: Oxford
This chapter has demonstrated that there are only two clear issues of law here. These measures and Dispute Settlement: The
University Press).
Current Debate within the ILC', 5 EJIL
are that countermeasures taken under the doctrine enunciated by the ILC and the Air CARTWRIGHT, D and LOPEZ, GA (2000), The
20.
Services case are lawful (subject to limitations, inter alia, concerning human rights and Sanctions Decade: Assessing UN Strategies
BOWETT, DW (1972a), 'Reprisals Involving in the 19905 (Boulder, Colo.: Lynne
Recourse to Armed Force', 66 AJIL l. Rienner).
53 SC Res 748 (31 March 1992).
54 SC Res 253 (29 May 1968). - - (1972b), 'Economic Coercion and CASSESE, A (2001), International Law
55 See, eg, SC Res 1409 (14 May 2002) (Iraq). Reprisals by States', 13 Virginia JIL 1. (Oxford: Oxford University Press).

--------- ---- ---- ------ ----- --- - - - - - - - -

52 8 ND WHITE AND A ABASS
CONFORTI, B (2000), The Law and Practice
of the United Nations, 2nd edn (The
Hague: Kluwer).
CRAWFORD, J (2001), 'The Relationship
between Sanctions and Counter-
measures', in Gowlland-Debbas, p 57.
- - (2002), The International Law Com-
mission's Articles on State Responsibility
(Cambridge: Cambridge University Press).
DINSTEIN, Y (2001), War, Aggression and
Self-Defence, 3rd edn (Cambridge:
Cambridge University Press).
DUGARD, J (2001), 'Judicial Review of
Sanctions', in Gowlland-Debbas, p 8.
ELAGAB, OY (1988), The Legality of Non-
Forcible Counter-Measures in International
Law (Oxford: Clarendon Press).
GOWLLAND-DEBBAS, V (ed.), (2001) United
Nations Sanctions and International Law
(The Hague: Kluwer).
(2001), 'Introduction', in Gowlland-
Debbas, V (ed.), p 2.
FURTHER READING
CARTWRIGHT, D and LOPEZ, GA (2000),
The Sanctions Decade: Assessing UN Strat-
egies in the 1990s (Boulder, Colo.: Lynne
Rienner). A very good examination of the
issues and problems of recent and current
UN sanctions regiines.
CRAWFORD, J (2002), The International Law
Commission's Articles on State Responsibil-
ity: Introduction, Text and Commentaries
(Cambridge: Cambridge University
Press). An essential collection of Inter-
national Law Commission materials
necessary for an understanding of the
nature, role and function of
countermeasures.
ELAGAB,OY (1988), The Legality ofNon For-
cible Counter-Measures in International
Law (Oxford: Clarendon Press). A very
KRINSKY, M and GOLOVE, CD (eds) (1993),
United States Economic Measures against
Cuba (Northampton, Mass.: Aletheia
Press).
17
LAUTERPACHT, H (1933), 'Boycott in
International Relations', 14 BYIL 125. THE MEANS OF
LILLICH, RB (1975), 'Economic Coercion
and the International Legal Order', 51 DISPUTE SETTLEMENT
International Affairs 358.
LOWENFELD, AF (2001), 'Unilateral versus
Collective Sanctions: An American John Merrills
Perception', in Gowlland-Debbas, p 95.
McNAIR, AD (1930), 'The Functions and
Different Legal Character of Treaties',
11 BYIL 100. SUMMARY
PAUST, J and BLAUSTEIN, AP (1974), 'The The peaceful settlement of disputes occupies a central place in international law and
Arab Oil Weapon-A Threat to Inter-
international relations. A range of methods of handling international disputes has been
national Peace', 68 AJIL 410.
developed and this chapter explains what the relevant techniques and itls.t.jtutiQrlS are,
ZOLLER, E (1984), Peacetime Unilateral how they work, and when they are used. Because important distinctions are to be found
Remedies: An Analysis of Countermeasures between the various diplomatic means of settlement (negotiation, mediation, inquiry, and
(Dobbs Ferry, NY: Transnational). conciliation) and the legal means of arbitration and judicial settlement, these are examined
separately. Also considered is the role ofthe United Nations and regional organizations.
In the light of current international practice two main conclusions emerge: firstly that
enormous progress has been made in refining and developing the means available for
dealing with disputes; and secondly that while the various methods have distinctive fea-
thorough exposition of the history and
tures which determine how and when they are likely to be used, the key to resolving disputes
development of countermeasures.
often lies in their use in combination and interaction.
GowLLAND-DEBBAs, V (ed.) (2001), United
Nations Sanctions and International Law
(The Hague: Kluwer).An excellent collec-
tion of essays, exploring, inter alia, the
boundaries between countermeasures 1. INTRODUCTION
and sanctions.
The idea that international disputes should be settled by ~aceful means rather than
SICILIANOS, L-A (1990), Les Reactions Decen-
the use of force has a long history. The attempt to construct institutions and develop
tralisees A L'Illicite: Des Contre-Mesures A
La Legitime Defense (Paris: Librarie teChniques with this objective is a more recent phenomenon, however, much of
Generale de Droit et de Jurisprudence). what exists today having been created in the twentieth century and a significant
Leading non-English text on the subject proportion since 1945. This chapter is concerned with the result of that effort in the
matter of countermeasures. form of the means currently available for resolving international disputes peacefully.
Initially, though, and to put the present arrangements in context, two questions need
ZOLLER, E (1984), Peacetime Unilateral
Remedies: An Analysis of Countermeasures to be considered: what we mean by an 'international dispuje', and wha!_!~e}~vv:has_to
(Dobbs Ferry, NY: Transnational. A useful say about States' obligations.
conceptual analysis of countermeasures. A-'dispute' is a di.§gIf_ement.about-somethigg and an 'international dispute' is a
53 0 JOHN MERRILLS
disagreement, typically but not exclusively between States, with consequences on the
international plane. However, a dispute is not just any disagreement, but a disagree-
ment about something fairly specific. So the Arab-Israeli problem, for example, is
not really a dispute, but because it is so complex is better described as a 'situation'.
Of course, 'situations' generally contain specific disputes within them and the inter-
national community has to be concerned with both. 1 Nevertheless this chapter is
mainly concerned with methods for dealing with disputes, rather than situations, so
the distinction is worth bearing in mind.
What sort of specific disagreements qualify as dis.putes? Or to put the question
another way, what is the subject matter of disputes? This is easily answered. Inter-
national disputes can be about almost anything. A dispute within the European
Union, for instance, about the need for closer political integration, would be a dispute
about policy. In contrast, most disputes about boundaries or territorial issues involve
a disagreement about legal rights. Disputes can also sometimes be about issues of fact.
Where was State A's ship when it was intercepted by State B? What was it doing there?
Did it have permission? And so on. Clearly these various sources of disagreement
(fact, . law, and policy) are not mutually exclusive and in many disputes are mixed
up together. Separating the different elements, as we shall see, may be a key move in
dealing with such disputes effectively.
What, then, are States' legal obligations in this field? A comprehensive statement
can be found in an important resolution of the UN General Assembly, the 1982
Manila Declaration on the Peaceful Settlement of International Disputes,z which
confirms and elaborates the relevant provisions of the United Nations Charter and the
General Assembly's earlier Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States of 1970. 3 Thus paragraph 2 of
Section I of the Manila Declaration, like Article 2(3) of the Charter, requires every
State to 'settle its international disputes exclusively by peaceful means in such a
manner that international peace and security and justice, are not endangered'. And
paragraph 5, echoing Article 33, lists the means available, calling for States to 'seek in
good faith and in a spirit of co-operation an early and equitable settlement of their
international disputes by any of the following means: negotiation, inquiry, mediation,
conciliation, arbitration, resort to regional arrangements or agencies or other peaceful
means of their own choice including good offices'. Acknowledging the range of
contingencies, the paragraph then concludes, 'In seeking such a settlement the parties
shall agree on such peaceful means as may be appropriate to the circumstances and
the nature of their dispute'.
It should also be noted that the Declaration says that in the event of the failure of
the parties to reach an early solution 'they shall continue to seek a peaceful s.olution'
1 On the significance of 'situations' with particular reference to the role of the United Nations, see Koufa,
1988.
2 GA Res 37/10 (1982) 21 lLM 449.
3 GA Res 2625 (XXV), (1970) 91LM 1292. See further Merrills, 1994.
THE MEANS OF DISPUTE SETTLEMENT 531
and 'consult forthwith on mutually agreed means' (paragraph 7), adding in the next
paragraph that the parties to a dispute and other States 'shall refrain from any action
whatsoever which may aggravate the situation so as to endanger the maintenance of
international peace and security and make more difficult or impede the peaceful
settlement of the dispute ... '. The obligation, then, is not just to give peaceful methods
a try, but to persevere for as long as necessary, whilst at the same time avoiding action
which could make things worse. In other words, if a dispute cannot be settled, States
must at least manage it and keep things under control. What the various methods are
and how they are used will therefore now be considered.
II. DIPLOMATIC METHODS
A. NEGOTIATION
The methods of peaceful settlement listed in the Manila Declaration ar~ not set out in
order of priority, but the first mentioned, negotiation, is the most widely used way of
dealing with international disputes. 4 In fact, negotiation is used more often in practice
than all the other methods put together. Often, indeed, negotiation is the only means
employed, not just because it is normally the first to be tried and is often successful,
but also because its advantages may appear so great as to rule out other methods,
even where the chances of a negotiated settlement are slight. When other methods are
chosen, negotiation is not supplanted but used to resolve instrumental issues, the
terms of reference for an inquiry commission, for instance, or the arrangements for
implementing an arbitral award.
Since negotiation allows the parties to retain control of a dispute without involving
third parties, it is not surprising that governments find it so attractive. However,
the decision to negotiate can itselfbe controversial, acknowledging as it does both the
other party's standing and the legitimacy of its interests. Consequently, on sensitive
subjects such as sovereignty, if it is possible to negotiate at all, it may be necessary
to restrict discussions to relatively uncontentious issues at least to start with, leaving
the bigger problems until later. In 1973, for example, the United Kingdom succeeded
in negotiating an Interim Agreement during its fishing dispute with Iceland5
and following the Falklands War of 1982 was likewise able through diplomatic contact
to establish a modus vivendi with Argentina (Evans, 1991; Churchill, 1997). It would
therefore be a mistake to see negotiation as concerned only with settling international
disputes. Its function in 'managing' disputes, ie, containing them in order to preserve
other aspects of the parties' relationship, may be equally significant.
Because negotiation is. fundamental it should be thought of not so much as a stage
4 For more detailed discussion of negotiation see Merrills, 1998, pp 1-27 and Anderson, 1998b.
5 See Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, IeJ Reports 1974, p 3,
paras 37-39.
53 2 JOHN MERRILLS
in the conduct of virtually all disputes, but rather as an option available to the parties
at any time, for use either alongside, or as part of, other processes. Thus as the Inter-
national Court indicated in the Aegean Sea Continental Shelf case, the fact that negoti-
ations are being pursued during litigation is no bar to the exercise of the Court's
powers and vice versa. 6 As a result, it is not at all uncommon for cases to be resolved
by negotiation in the course of litigation, as happened in 1996 in the Iran-United
States Aerial Incident case. 7 Similarly, a State may decide to take a dispute to a political
body like the Security Council or General Assembly, but at the same time continue
bilateral discussions. Such twin-track approaches, employing both public and private
diplomacy, are perfectly permissible and show the adaptability of negotiation.
Important though negotiation is, it cannot guarantee that a dispute will be settled,
or even managed, because it is limited in various ways. It may be impossible if the
parties refuse to speak to each other and it will be ineffective if their positions are too
far apart, although in both situations, as we shall see, mediation or good offices can
help. If a procedure for dealing with the dispute, such as arbitration, has already been
agreed, one party may see no point in further negotiation, especially if it is confident
of its legal position. More generally, the objective of resolving disputes 'equitably'
and in accordance with justice, which are what the Manila Declaration prescribes, sits
uneasily with the prospect of having to negotiate in a situation of grossly unequal
political power. Accordingly, though negotiation is often called for by the strong, the
weak may be justified in declining the invitation.
Negotiation, however, is not always a matter of free choice. Quite apart from the
force of circumstances which may mean that refusing to negotiate is not an available
option, a State may bind itself to negotiate in a treaty, or find that an obligation to
negotiate arises under the general law. In the North Sea Continental Shelf cases, for
instance, the International Court decided that according to customary international
law the delimitation of continental shelf boundaries between neighbouring States
'must be effected by agreement in accordance with equitable principles'. 8 Of course, an
obligation to negotiate on this or any other subject is not the same as an obligation
to agree, nor does it exclude recourse to other procedures. What the Court wished to
emphasize here was simply that as each party had rights in the disputed area, the
boundaries in question were not subject to unilateral determination, and unless
resolved by another procedure, had to be settled by negotiation.
The duty to negotiate sometimes laid down in treaties may be compared
with related, but lesser obligations which are an alternative. The 1994 World Trade
Organization Agreement requires its parties to 'enter into consultations' over trade
issues when requested by another party,9 which is an obligation to negotiate, whereas
6 See Aegean Sea Continental Shelf, Judgment, IC] Reports 1978, p 3, para 29.
7 See Aerial Incident of 3 July 1988, Order of 22 February 1996, IC] Reports 1996, p 9. See also (1996)
90 AjIL278.
8 North Sea Continental Shelf, Judgment, IC] Reports 1969, p 3, para 85.
9 WTO Undt;rstanding on Rules and Procedures Governing the Settlement of Disputes (1994),
Article 4(3). Text in (1994) 33 ILM 1226.
THE MEANS OF DISPUTE SETTLEMENT 533
the 1982 Law of the Sea Convention calls only for the parties to a dispute to 'proceed
expeditiously to an exchange of views' as to the means of settlement to be used.lO It is,
however, worth stressing that just as there is no general duty to consult before taking
action which may affect others, so there is no general duty to seek negotiated
settlements. The various methods of settlement available in international law are
listed as alternatives. Negotiation is simply one and in the absence of a specific duty to
negotiate, such as in the WTO Agreement, States can use it or not as they see fit.
Despite this essential qualification, negotiation is an extremely important means of
dealing with disputes and international relations would be unimaginably different
without it. In almost all cases diplomatic exchanges will have to take place before a
disagreement becomes specific enough to be described as a dispute-that is in order
for the parties to establish what, if anything, they disagree about. And once it is clear a
dispute exists, negotiation will often provide the best prospect of a solution, whether
permanent or provisional, and for cases involving major as well as routine friction. It
is evident, however, that although negotiation must be regarded as basic, it may not be
sufficient, without more, either to resolve a dispute, or even supply a modus vivendi.
The other methods mentioned in the Declaration must therefore now be considered.
B. MEDIATION
Mediation is essentially an adjunct of negotiation and involves a third party. If the
latter does no more than encourage the protagonists to resume negotiations, or simply
acts as a channel of communication, the role is described as one of 'good offices'. A
mediator, on the other hand, is an active participant, authorized, and indeed expected,
to advance his own proposals and to interpret, as well as to transmit, each party's
proposals to the other.11 Mediation therefore has much in common with conciliation,
although a mediator usually makes proposals informally and on the basis of infor-
mation supplied by the parties, rather than through independent investigations which
are a feature of conciliation. In practice, however, these distinctions tend to be blurred.
In a given case it may therefore be difficult to draw the line between mediation and
conciliation, or to say exactly when good offices ended and mediation began.
Mediation can only take place if the parties to a dispute consent and a mediator
willing to act in that capacity is available. The United Nations and several regional
organizations are charged with the resolution of disputes as an institutional objective
and as a result the Secretary-General and his regional counterparts often find them-
selves providing good offices and mediation. Non-governmental organizations too,
such as the International Committee of the Red Cross, can act as mediators (Forsythe,
1985). Since it offers an opportunity to become involved in a dispute and to influence
its outcome, the role of mediator also has attractions for States, or individuals, with
10 United Nations Convention on the Law of the Sea (1982), Article 283(1). Text in (1982) 21 ILM 1245.
11 For more detailed discussion of mediation see Bercovitch and Rubin, 1992; Merrills, 1998, pp 27-44;
Greenberg, Barto, and McGuiness, 2000.
534 JOHN MERRILLS
the nec.essary qualifications. Accordingly, it is not unusual for the course of significant
international disputes to be punctuated by offers of mediation from one or more
outside sources.
Since mediation cannot be forced on the protagonists, unless they take the initiative
and invite outside involvement, an unwillingness even to consider this form of
assistance may frustrate the efforts of would-be mediators. If a party is unwilling
to negotiate, or to contemplate any modification of its position, its acceptance of
mediation (which would imply the opposite) is clearly very unlikely. On the other
hand, States normally have an interest in resolving their disputes and while the terms
of any settlement are plainly important, intransigence may be too expensive politically
for a blank refusal of mediation to be feasible. In 1982, for example, Argentina and the
United Kingdom were willing to accept good offices from the UN Secretary-General,
and then mediation from the United States, because neither government could afford
to alienate potential supporters. 12 It was clear at the time that something of a miracle
would be needed to avoid further conflict, but for the sake of appearances, if for no
other reason, they had to show willing.
Once mediation has been accepted, the task of the mediator is to devise or promote
a solution which both sides can accept. Here much can be achieved by simply pro-
viding good offices and facilitating communication, especially if the parties are unable
to deal with each other directly. This was the situation in both the Falklands crisis
and the Diplomatic Hostages dispute of 1980, where Algeria acted as intermediary
between Iran and the United States (Sick, 1985; Slim, 1992). As well as acting as a
channel for information, a mediator can remind the parties of their real objectives,
or encourage rethinking, and devise suitable compromises, as the Papal mediator in
the Beagle Channel clispute eventually succeeded in doing (Laudy, 2000). A powerful
mediator may also be able to influence the parties by exploiting his own position,
offering inducements to agree in the form of rewards, or indicating that a failure to do
so will be costly.
Normally, a mediator's main concern is only to find terms the parties can accept; in
some types of mediation, however, any settlement must also meet certain external
criteria. Thus according to Article 38 of the European Convention on Human Rights,
one of the functions of the European Court of Human Rights is to <place itself at the
disposal of the parties concerned with a view to securing a friendly settlement of the
matter on the basis of respect for human rights' as defined in the Convention and its
Protocols. In this provision, which has its counterpart in other human rights treaties,
the Court is, in effect, required to act as mediator, while at the same time respecting
the Convention's basic values. A significant number Df individual claims have been
resolved using the friendly settlement procedure,13 demonstrating that mediation with
a substantive dimension is both workable and appropriate in the human rights field.
12 For an account of these initiatives and the subsequent efforts of the President of Peru, see Freedman
and Gamba-Stonehouse, 1990, pp 150-323.
13 For an account of practice under Article 38 (ex 28) of the European Convention, see Merrills and
Robertson, 2001, pp 279-282, 318-319.
THE MEANS OF DISPUTE SETTLEMENT 535
As a means of dispute settlement mediation is clearly subject to important
limitations. A mediator must be available and the parties must be willing to accept
mediation. When mediation has begun the prospects of success rest largely on the
parties' readiness to compromise which means that timing is often crucial. In both
the Diplomatic Hostages crisis and the Beagle Channel dispute mediation occurred
at an opportune moment and a peaceful resolution of the situation was achieved.
In the Falklands crisis, on the other hand, the aims of Britain and Argentina were
diametrically opposed and as neither was willing to yield on the crucial issue of
sovereignty, the matter was eventually resolved by armed conflict.
Mediation, then, is as effective as the disputants allow it to be and their attitudes are
likely to be governed by their immediate situation. This restricts the possibilities
of mediation, but does not destroy its value. A mediator does more than perfect
an inchoate settlement. By facilitating the parties' dialogue, providing them with
information and suggestions, identifying and exploring their aims, and canvassing
possible solutions, his role may be vital in moving them toward"s agreement. Success
will often be incomplete and failure sometimes unavoidable. The mediator, however,
must do his best and trust that the parties reciprocate.
C. INQUIRY
Inquiry in the context of dispute settlement is a term used in two distinct, but related
senses. In the broader sense it refers to the process performed whenever a court
or other body attempts to resolve a disputed issue of fact. Since most international
disputes raise such issues, even if questions of law or policy are also present, it is clear
that inquiry in this operational sense must play a large part in arbitration, con-
ciliation, the work of international organizations, and other methods of peaceful
settlement. Inquiry can, however, also be usec;l in a narrower sense, not as a process
of general relevance and application, but as a specific institutional arrangement
which may be selected instead of arbitration or other techniques to establish the facts.
In its institutional sense, then, inquiry refers to a particular type of international
tribunal, knqwn as the commission of inquiry and introduced by the 1899 Hague
Convention. 14
The delegates to the first Hague Peace Conference were prompted to address the
issue of fact-finding by an incident the year before in which the unexplained destruc-
tion of the United States battleship Maine had precipated a Spanish-American war.
In an effort to minimize such problems in the future the Conference suggested
the appointment of international commissions of inquiry for impartial fact-finding
and arrangements to this effect were incorporated in the 1899 Hague Convention.
Soon afterwards in 1904 they were used for the first time in a curious episode known
as the Dogger Bank incident when the Russian fleet, wrongly believing it was under
attack, fired on and damaged a number of British trawlers. A commission of inquiry
14 For more detailed discussion of inquiry see Bar-Yaacov, 1974; Merrills, 1998, pp 44--62.
 JOHN MERRILLS
appointed by the two governments established that a mistake had been made and on
payment of suitable compensation the incident was declared closed (Bar-Yaacov,
1974, pp 72-81).
The Dogger Bank episode was a striking example of the value of fact-finding in the
settlement of international disputes. However, it also revealed certain weaknesses in
the provisions of the Hague Convention which were conspicuously lacking in detail.
Accordingly, the Hague Convention of 1907 expanded the earlier scheme with a series
of Articles devoted to organization and procedure. These arrangements were then
used in a group of cases over the next two decades involving incidents at sea, where
once again establishing the facts enabled the disputes to be disposed of.15 This was also
the outcome in the Red Crusader case 16 in 1962 in which the United Kingdom and
Denmark set up an inquiry commission to deal with a dispute arising out of an
attempt to arrest a British trawler.
Following the 1907 Hague Convention the United States concluded treaties with
France and Great Britain, known as the Taft treaties, providing for commissions of
inquiry with expanded powers and a further series, known as the Bryan treaties,
featuring further variations. A number of other States concluded agreements along
similar lines. All this treaty practice failed to produce a sequence of inquiries like those
generated by the Hague Conventions, although in 1992 one of the Bryan treaties was
used in the Letelier and Moffitt case 17 to resolve a dispute over compensation between
the United States and Chile. But if in terms of case law the significance of these
bilateral treaties was negligible, they were important more generally because the idea
of combining inquiry with the power to make recommendations produced the insti-
tutional arrangement known as conciliation described further in the next section.
Inquiry is clearly a very flexible method having been used both for (pure' fact-
finding, as in some of the early cases, and for situations where legal questions were
prominent, as in Letelier and Moffitt. Why, then, it is so rarely used? One explanation
is that today when an inquiry is needed it can sometimes be carried out through
an international organization without using the Hague Conventions. The Security
Council, for example, sets up fact-finding commissions from time to time, as do the
Specialized Agencies and in 1993 the World Bank introduced a unique Inspection
Panel procedure 18 to investigate development projects. These institutional develop-
ments account, at least in part, for the relatively small number of cases using the
Hague procedure. There is, however, a more fundamental explanation.
All forms of third party settlement have proved less popular than was once antici-
pated. The root of the problem is that States are often less interested in settling a
15 For a summary of these cases see Bar-Yaacov, 1974, pp 141-179; Merrills, 1998, pp 47-5l.
16 The text of the Commission's Report can be found in 35 ILR 485. For discussion of the case see
Bar-Yaacov, 1974, pp 179-196; Merrills, 1998, pp 52-55.
17 Letelier and Moffitt case (Chile-United States), 88 ILR 727 and (1992) 31 ILM 1. For comment see
Merrills, 1998, pp 55-58.
18 See Bradlow, 1993-94; Chinkin, 1998, pp 134-137; Collier and Lowe, 1999, pp 119-121. The
Inter-American Bank and the Asian Development Bank have established similar panels.
THE MEANS OF DISPUTE SETTLEMENT 537
dispute than in having their views prevail. It is therefore only when certain special
conditions are satisfied that there is usually scope for setting up an inquiry commis-
sion. These are that the disputed issue is largely one of fact, that no other procedure
is being employed and, most important of all, that the parties are willing to accept
that their version of events may be shown to be wrong. Such a combination evidently
does not occur very often. When it does, the highly satisfactory outcome of the
Red Crusader episode shows that the international commission of inquiry can still
produce useful results.
D. CONCILIATION
Conciliation has been defined as:
A method for the settlement of international disputes of any nature according to which a
Commission set up by the Parties, either on a permanent or an ad hoc basis to deal with
a dispute proceeds to the impartial examination of the dispute and attempts to define the
terms of a settlement susceptible of being accepted by them, or of affording the Parties with
a view to its settlement, such aid as they may have requested. 19
If mediation is essentially an extension of negotiation, conciliation puts third party
intervention on a formal footing and institutionalizes it in a way comparable, but
not identical, to inquiry or arbitration. For the fact-finding exercise that is the essence
of inquiry mayor may not be present in conciliation, while the search for terms
(susceptible of being accepted by the parties' but not binding on them, contrasts
sharply with arbitration and forms a link between conciliation and mediation.
Like other institutional methods, conciliation is normally entrusted to commis-
sions containing several members. However, it is also possible to refer a dispute to a
single conciliator and this procedure was adopted in 1977 when Kenya, Uganda, and
Tanzania asked the experienced Swiss diplomat, Dr Victor Umbricht, to make pro-
posals for distributing the assets of the former East African Community (EAC). As the
extent of the assets was unknown, the conciliator had to begin by conducting a wide
ranging inquiry, first to identify and then to value them, after which he could consider
their distribution. Although in the final negotiated settlement the division of assets
differed slightly from that proposed by Dr Umbricht, it is clear that his activities,
which included mediation as well as conciliation and inquiry, and extended over
seven years, made a vital contribution to the eventual settlement (Uinbricht, 1984).
A more straightforward dispute which was resolved at about the same time
involved a commission of the type familiar from previous conciliations. In 1980
Iceland and Norway set up a commission to make recommendations with regard
to the dividing line for the area of continental shelf between Iceland and Jan
Mayen Island. The Commission was instructed to take into account Iceland's (strong
19 The quotation is from Article 1 of the Regulations on the Procedure of International Conciliation,
adopted by the Institute of International Law in 1961. For more detailed discussion of conciliation see Cot,
1972; Bar-Yaacov, 1974, pp 198-248; Merrills, 1998, pp 62-88.
 JOHN MERRILLS
economic interests' in the sea areas in question, along with various other factors.
Following a detailed investigation of geological and other evidence, the Commission
proposed both a boundary line and a joint development agreement for the area where
oil deposits might exist (Churchill, 1985; Richardson, 1988). This recommendation,
typical of the kind of constructive compromise which conciliation can generate, was
accepted by the parties and in 1981 was incorporated in a treaty which ended the
dispute.
Bilateral agreements providing for the reference of future disputes to conciliation
were quite common in the League of Nations era after the First World War, but are
now quite rare. When States use conciliation in a bilateral treaty today it is therefore
usually in order to deal with a specific dispute, as in the two cases just mentioned.
Multilateral treaties, however, show a quite different pattern and in recent practice
agreements providing for conciliation, often in conjunction with other procedures,
have been concluded on a variety of topics. Among treaties demonstrating the
relevance of conciliation to dispute settlement in different fields are the 1969 Vienna
Convention on the Law of Treaties, the 1981 Treaty establishing the Organization
of Eastern Caribbean States, the 1982 Convention on the Law of the Sea, and the 1992
Convention on Biological Diversity.20
The 1987 Montreal Protocol on Substances that Deplete the Ozone Layer is also
worth mentioning here as it establishes a novel 'non-compliance procedure', con-
stituting a special kind of conciliation. Under the procedure an Implementation
Committee consisting of ten parties to the Protocol hears submissions relating to a
party's non-compliance which may be put forward by the Secretariat or any other
party. The Committee may then make recommendations 'with a view to securing
an amicable solution of the matter on the basis of respect for the provisions of the
Protocol'. Chinkin (1998, p 129) points out that a process such as this, dealing as it
does with disputes both 'in-house' and informally, is particularly suitable for an
evolving regulatory regime, as it can reflect the expectations and understandings of
the parties, but at the same time avoid crystallizing the law in a fast changing area..
The Law of the Sea Convention, which includes conciliation as part of elaborate
arrangements for the settlement of disputes, lays q.own the procedure to be followed
in setting up commissions, together with details of their organization and juris-
diction. 21 Other multilateral treaties contain similar provisions, though with various
differences of detail. For States wishing to establish an ad hoc commission the United
Nations General Assembly has produced a set of model rules covering all aspects of .
conciliation which were approved in 1995. In the following year the Permanent Court
of Arbitration produced its own optional rules for States wishing to use the Court and
the United Nations Commission on International Trade Law (UNCITRAL) adopted
rules in 1980 for conciliation in internatio~al commercial disputes. 22
20 For an outline of current treaty practice and other recent developments see Merrills, 1998, pp 74-84.
21 For analysis of these arrangements and their relation to the Convention's other provisions see Merrills,
1998, pp 178-180. . and Kingsbury, 1992; Merrills, 1998, pp 88-121; Collier and Lowe, 1999, pp 189-279.
22 See the Annex to GA Res 35/52,4 December 1980 and Collier and Lowe, 1999, p 31.
THE MEANS OF DISPUTE SETTLEMENT 539
Although conciliation is now regularly included in provisions on dispute settle-
ment, the number of cases in which it has actually been used remains very small.
Moreover, since a commission's proposals are not binding, even when conciliation is
attempted, there can be no guarantee it will be successful. Conciliation, nevertheless,
has a value. Compulsory procedures of any kind, by their very existence, tend to
discourage unreasonable claims, while conciliation in practice has proved particularly
useful for disputes like the Jan Mayen case where the main issues are legal, but the
parties are seeking an equitable compromise. Like inquiry, the process from which
it developed, conciliation offers a procedure adaptable to a variety of needs and
shows the advantage to be gained from a structured involvement of outsiders in the
settlement of international disputes.
III. LEGAL METHODS
A. ARBITRATION
The oldest of the legal methods of dispute settlement is arbitration, the origins of
which in current international practice can be traced back to the 1794 Jay Treaty
between Great Britain and the United States. A distinctive feature of arbitration is that
the parties themselves set up a tribunal to decide a dispute, or a series of disputes,
usually on the basis of international law, and agree to treat its decisions as binding.
Since form is subordinate to function in international relations, variations on the
basic pattern are possible, but the standard form of arbitration is now well-established
and regularly used for many kinds of international disputes. 23
Traditionally, arbitration has been used for disputes in which the issues are legal
and the need to remove an obstacle to good relations makes the idea of a binding
settlement attractive. Territorial and boundary disputes, for example, often fall into
this category. Because the parties define the question to be answered and can specify
the basis of the decision, they exercise a degree of control over the process which is
a further advantage. Moreover, the parties are entitled to choose the arbitrators.
Although this, like other elements of an arbitration, requires agreement and so may
cause delay, it means that the dispute will eventually be decided by a tribunal which
the parties believe they can trust, a factor of fundamental importance in international
litigation: Over the years the reference of disputes to arbitration has generated a
significant and influential case law, prominent awards including those in the Tinoco
case24 (1923), the Island of Palmas case2S (1928), and the Trail Smelter case26 (1938-
41). More recently, the value of arbitration has been further demonstrated in the Taba
23 For useful surveys of the development and current role of arbitration see: Simpson and Fox, 1959; Gray
24 1 RIAA 369. 25 2 RIAA 829. 26 3 RIAA 1905.
54 0 JOHN MERRILLS
case27 (1988) between Egypt and Israel, where a land boundary was in issue, the St
Pierre and Miquelon case28 (1992) between Canada and France, involving a marine
boundary, and the two-stage Red Sea Islands case29 (1998-99) between Eritrea
and Yemen, where territorial sovereignty and maritime delimitation were both in
issue. Among notable arbitrations where boundary issues were not involved are the
La Bretagne case30 (1986) between Canada and France, the two arbitrations in the
Rainbow Warrior case (1986 and 1990) between France and New Zealand, and
the Heathrow Airport case3l (1992-93) between the United Kingdom and the United
States.
Arbitration, like conciliation, is a method which can be employed ad hoc when a
dispute arises,32 or provided for in advance by appropriate arrangements in a treaty.
It is therefore to be found in the dispute settlement provisions of multilateral and
bilateral conventions on a wide variety of subjects, as either an optional or a com-
pulsory procedure, and often in combination with other methods. The 1982 Law of
the Sea Convention, for example, gives a very prominent role to arbitration, as do the
1992 Stockholm Convention on Conciliation and Arbitration within the CSCE and a
number of recent conventions concerned with the environment. 33 In the World Trade
Organization's dispute settlement system, similarly, though the general emphasis is on
panel proceedings (described below), arbitration is also an option and for certain
disputes is even mandatory (Merrills, 1998, pp 214-216).
The use of arbitration to decide inter-State disputes must be distinguished from its
use in a related context, to deal with disputes between a State on one side and an
individual or corporation on the other. In cases of this type, known as mixed arbitra-
tions,34 the tribunal's jurisdiction may derive from a contract rather than a treaty,
but in either event has international implications that are likely to be significant. The
Iran-US Claims Tribunal,35 for example, was set up in 1981 to handle a large number
of disputes arising from the Islamic revolution in Iran and has jurisdiction over both
inter-State and private claims. Its decisions, which now run to more than thirty
volumes, not only show the value of arbitration as a procedure for resolving serious
and complex disputes of a commercial character, but because the Tribunal has had
to address issues such as expropriation and State responsibility, also have made a
significant contribution to international law (Aldrich, 1998; Ameli, 1998).
27 80 ILR 224.
28 95 ILR 645.
29 (2001) 40 ILM 900 and 983.
30 90 RGDIP 713.
31 United States-United Kingdom Arbitration Concerning Heathrow Airport User Charges, 102 ILR 216.
32 Most of the cases mentioned in the text were ad hoc arbitrations, several of which utilized the facilities
of the Permanent Court of Arbitration. For a discussion of the Court's work see Merrills, 1999.
33 See Merrills, 1998, pp 116-118; 180-185 and for the use of conciliation in earlier treaties Sohn, 1982-83.
34 For a good account of mixed arbitration, including the work of the International Centre for the
Settlement of Investment Disputes (ICSID), and the related topic of international commercial arbitration,
see Collier and Lowe, 1999, pp 45-84.
35 For a more detailed account of the Tribunal and its work see Brower, 1998.
THE MEANS OF DISPUTE SETTLEMENT 541
Arbitration, then, is an important means of handling international disputes. It
does, however, have significant limitations. As we shall see in the next section, States
are reluctant to make general commitments to judicial settlement and for much the
same reasons often resist the idea of arbitration. When a specific dispute arises,
however, negotiation or another diplomatic method may be preferred on the ground
that it keeps the solution firmly in the hands of the parties. Another limitation
concerns enforcement. Although arbitration produces a binding decision, it can be
difficult to ensure that the losing party carries out the award. This' does not mean that
arbitral decisions are widely disregarded, but nonetheless is a real weakness. Ways
of encouraging compliance are available and can be useful, but the answer really lies
with the protagonists. Arbitration, like other means of settling disputes in a world of
sovereign States, relies for its effectiveness on responsible behaviour from the parties.
B. THE INTERNATIONAL COURT OF JUSTICE
Judicial settlement involves the reference of disputes to permanent tribunals for a
legally binding decision. It is listed in the Manila Declaration after arbitration, from
which it developed historically, and is currently available through a number of courts
with general or specialized jurisdiction. The only court of general jurisdiction is the
International Court of Justice (ICD at The Hague, details of which will be found in
Chapter 18. Courts with specialized jurisdiction include human rights courts .and
various tribunals considered in the next section and the European Court of Justice
(ECD, a regional organ with extensive powers over the member States of the European
Community, Community organs, and natural or legal persons. It is interesting to note
that the ECJ and the other specialized courts have all been created since 1945 and
reflect the increasing complexity of international relations. Our review must begin,
however, with the ICJ. 36
The Court's authority to decide cases is conferred by its Statute and is based on the
principle of consent. It is therefore open to States to agree to take future disputes, or
any particular dispute, to the Court by concluding a treaty in appropriate terms, or to
make a unilateral acceptance of jurisdiction in the form of a declaration under Article
36(2) of the Statute, known as the Optional Clause. 37 In the event of a disagreement as
to whether jurisdiction has been accepted the matter is decided by the Court, whose
decision, according to Article 36(6), is final. Only States may be parties in cases before
the Court, although under Article 65 it may also give advisory opinions on legal
questions for the benefit of international organizations.
The Court is composed of fifteen judges who are elected for nine-year terms by the
Security Council and General Assembly of the United Nations. The Statute requires
36 For more detailed treatment of the International Court and its work see Merrills, 1998, pp 121-170;
Collier and Lowe, 1999, pp 124-189 and the essays in Muller, Raic, and Thuranszky, 1997.
37 For discussion of the Optional Clause, with particular reference to recent State practice, see Merrills,
1993.
542 JOHN MERRILLS
the judges to be broadly representative of 'the main forms of civilization and of the
principal legal systems of the world', but they sit as independent judges, not as
representatives of their national States. However, if a party to a dispute does not
currently have a judge of its nationality on the Bench, it is entitled to appoint an ad
hoc judge who becomes a member of the Court for that case only. Cases are
normally heard by the full Court, but if the parties wish, they can instead refer it to
a smaller chamber (normally five judges). The composition of a chamber is in
practice determined by the parties, making the process similar in this respect to
arbitration. 38
The Court's function is described in Article 38(1) of the Statute as 'to decide in
accordance with international law such disputes as are submitted to it ... ' and the list
of materials which follows, beginning with 'international conventions' and ending
with 'judicial decisions' and 'the teachings of ... publicists', has come to be seen as the
core of modern international law. As well as interpreting and applying the law, the
Court must, of course, also resolve any issues of fact that may be necessary and for
this purpose receives and assesses documentary or other evidence brought forward by
the parties, the quantity of which may sometimes be extremely large. This may
include the evidence of witnesses or experts and the Court itself may decide to visit
the scene as happened in 1997 in the Danube Dams case. 39
Under Article 38(2) of the Statute the Court may at the request of the parties give a
decision ex aequo et bono instead of on the basis oflaw. However, this provision, which
blurs the distinction between adjudication and conciliation, has never been used. A
less drastic alternative is to refer a case to the Court for a decision on an agreed basis.
Like the chambers procedure, this again brings adjudication close to arbitration,
although the Cou~t' s powers must always be exercised within the Statute. A further
possibility is for the Court to extend its function on its own initiative by utilizing
equitable considerations of various kinds. Whilst this is not a licence for freewheeling
judicial legislation, it introduces an element of flexibility into the Court's decisions
which can sometimes be useful (Weil, 1996).
When the Court decides a case its judgment is binding on the parties and is final
and without appeal. Whether it actually resolves the dispute, however, depends partly
on whether the parties accept it, that is are prepared to treat it as binding, and
partly on the precise question referred. States may, for example, decide to use the
Court only to obtain a n~ling on applicable rules and principles,4°or to determine
whether a dispute is subject to compulsory arbitration41 and in cases such as these
further steps may be needed to achieve a final settlement. As regards the acceptance
of decisions, difficulties can sometimes arise, especially where the unsuccessful party
38 For discussion of this and other aspects of the chambers procedure see Ostrihansky, 1988; Valencia-
Ospina, 1996.
39 GabCikovo-Nagymaros Project (Hungary/Slovakia), Order of 5 February 1997, Judgment, ICJ Reports
1997,p 7.
40 As in the North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3.
41 As in Ambatielos, Merits, Judgment, ICJ Reports 1953, p 10.
THE MEANS OF DISPUTE SETTLEMENT 543
has sought to challenge the Court's jurisdiction. On the other hand, disputes are often
taken to the Court and resolved there without acrimony because the States concerned
want a settlement. In such cases repudiation of the decision would merely return the
dispute to the political arena and therefore be self-defeating.
C. OTHER COURTS AND TRIBUNALS
"
Among the various courts with specialized jurisdiction the most spectacular develop-
ments have unquestionably been those associated with human rights tribunals,
notably the European Court of Human Rights at Strasbourg and the Inter-American
Court in San Jose. Before 1970 the former was rarely employed and the American
Court was not inaugurated until 1979. Today, however, t,he European Court, which
was reconstructed in 1998, has a flourishing jurisprudence42 and although the
American Court is not as busy, it has made its mark with both contentious cases
and advisory opinions (Harris and Livingstone, 1998). The work of these courts
stems mainly from cases brought by individuals, but both courts have jurisdiction
over inter-State disputes and deal with such cases from time to time. More impor-
tantly, as human rights are now an international issue, procedures for adjudicating
claims help to promote friendly relations whether or not they are brought by
States. The activities of human rights courts thus certainly fall within the Manila
Declaration.
Courts with specialized jurisdiction of a quite different type are to be found in the
1982 Law of the Sea Convention. For among several new institutions created by
the Convention is a new court, the International Tribunal for the Law of the Sea
(ITLOS), and a separate subsidiary organ, the Sea-Bed Disputes Chamber (SBDC)Y
ITLOS reflects the preference which many States had for a special tribunal to handle
disputes arising out of the new law contained in the 1982 Convention, and starting
with the MIV Saiga case44 in 1997, the Court has begun to develop its own distinctive
-jurisprudence. In the same way the SBDC was set up because the complex arrange-
ments in the Convention for exploiting the deep sea-bed were thought unsuitable for
adjudication in the main Tribunal. Unlike its parent body, however, the SBDC has no
case law, as yet.
The arrangements pertammg to the organization and jurisdiction of ITLOS
and the SBDC and the choice of law to be applied are set out in great detail in the
1982 Convention and show the thinking behind their creation. Among points par-
ticularly worth noting are that the jurisdiction of ITLOS is based on the principle of
free choice of means, since it depends upon States making a declaration nominating
42 For an account of the Court and its work, including the changes made in 1998, see Merrills and
Robertson, 2001.
43 On the arrangments relating to ITLOS and its place in the dispute settlement arrangements of the
Convention, see Merrills, 1998, pp 170-197; Anderson, 1998a; Collier and Lowe, 1999, pp 84-96; and Eiriksson,
2000.
44 (1998) 37 ILM 360.
544 JOHN MERRILLS
the Tribunal as their preferred option. The SBDC, on the other hand, has a juris-
diction which is automatically accepted by all the parties to the Convention. Both
tribunals, unlike the International Court, are open not just to States, but also to
other entities, including organizations, and each is permitted to split into smaller
chambers, in order to provide the parties, if they wish, with some of the advantages of
arbitration.
Functioning in a quite different sphere of operation is the dispute settlement sys-
tem of the World Trade Organization, set up when the Organization was created
in 1994. This complex system exists to deal with disputes concerned with trade
agreements and utilizes consultations between the parties, mediation, conciliation,
and arbitration in elaborate provisions details of which must be sought elsewhere. 45
At the centre of the system is an arrangement for referring disputes to panels made
up of independent experts whose role resembles that of arbitrators. Panel reports are
then liable to review by the members of an organ called the Appellate Body, which
further emphasizes the juridical nature of the process.
A feature of the WTO system is that the principle of free choice of means, normally
so important in dispute settlement, is largely absent. Whilst States are encouraged to
settle disputes by agreement, if they fail to do so, the complaining party is entitled
to request a panel. When the panel has reported, recourse to the Appellate Body is
again a matter of right, and when the litigation stage is complete, a political organ,
called the Dispute Settlement Body, takes over to ensure implementation. Notice
also that by subscribing to the WTO Agreement States not only forgo the remedy of
self-help, but also undertake to use its procedures exclusively. So, for example, if a
dispute could be dealt with either through the WTO, or through a regional system, the
former should be given priority.
Although the WTO system is relatively new, it is in constant use and has already
proved its worth. Trade disputes are complex, often involve shifts in economic and
political forces and are capable of arousing strong passions. If this makes peaceful
methods for resolving such disputes essential, it also means that methods which
encourage accommodation are no less important than those that seek to enforce
rules. That is why the WTO system features diplomatic as well as legal processes.
Moreover, in international trade law, as elsewhere, adjudication works best when
rules are not just applied impartially, but also command general acceptance. As the
fairness of trade rules depends on the policies of the major players in the WTO, their
responsibility as legislators underpins its system for dealing with disputes.
D. THE PLACE OF LEGAL METHODS
To understand the significance of arbitration or other legal methods and how
they are used in practice it is important to appreciate at the outset that courts and
45 There is already a large literature on the WTO system, including a detailed treatment by Petersmann,
1997. For more concise treatments see Merrills, 1998, pp 197-220 and Collier and Lowe, 1999, pp 94-104.
THE MEANS OF DISPUTE SETTLEMENT 545
tribunals do not operate in isolation, but regularly interact with political institutions
and processes. So, for example, the reference of a dispute to the IC] may be
prompted by the efforts of a regional organization, negotiations may be necessary
to establish the question asked, and may well continue on substantive matters
once litigation is in progress. At the post-adjudication stage, likewise, technical
assistance from the UN, or further negotiations, perhaps assisted by a mediator,
may be needed to deal with boundary demarcation, or similar issues concerning
implementation. 46
When considering the role of adjudication it is also as well to recognize that courts
and tribunals have no all-embracing ability to solve international problems, but
occupy a specialized place among the instruments of dispute settlement. Not only
are they limited to deciding disputes and so lack competence to deal with broader
'situations', but as their normal function is to decide cases by applying law, many
problems are unsuited to adjudication because they do not raise legal issues. Thus the
International Court has indicated that as a general rule it cannot deal with issues
requiring, say, a political or economic assessment, rather than a legal decision, and by
the same token will decline to answer questions which are moot Or only of historical
interestY
What, then, is the value of legal methods? Because the decisions of courts and
tribunals are binding, litigation is a good way of disposing of troublesome issues
the resolution of which is considered to be more important than the actual result.
Conversely, when the result is all-important adjudication is likely to be unattractive
because it is simply too risky, a point which is reinforced by the fact that adjudication
is not merely dispositive, but tends to produce a winner-takes-all type of solution.
This explains why States are notoriously reluctant to make a general commitment
to take their disputes to the International Court, but may be willing to do so in
individual cases. It also explains the popularity ofITLOS and the WTO panels system,
which are designed for a specific purpose, where the parties' commitments are
defined and the judges have special expertise.
Are international courts capable of deciding disputes with a strong political
element? The answer is to be found in a firmly established principle which is really
quite basic to international adjudication. It is that courts and tribunals are set up
to resolve legal issues and so, provided a case presents a legal issue, they are
not prevented from deciding it merely because it also has political elements. 48 It
is easy to see that such an attitude is essential if adjudication is to function. All
46 For discussion of the post-adjudication phase in the Honduras/Nicaragua Arbitral Award case (1960)
and the Libya/Chad, Territorial Dispute case (1994), in both of which political organizations were involved,
see Rosenne, 1997, pp 265-269 and 274-276; Merrills, 2000, pp 898-90l.
47 See Haya de Torre, Judgment, ICJ Reports 1951, p 71; Northern Cameroons, Preliminary Objections,
Judgment, ICJ Reports 1963, p 15; Nuclear Tests (Australia v France), Judgment, ICJ Reports 1974, p 253,
and Nuclear Tests (New Zealand v France), Judgment, ICJ Reports 1974, p 457.
48 For discussion of the cases in which this point has been made, including the Diplomatic Staff in Tehran
case and the Nicaragua case, see Merrills, 1998, pp 155-159.
 JOHN MERRILLS THE MEANS OF DISPUTE SETTLEMENT 547

disputes between States have political elements because States are political bodies.
Therefore to concede that a case could not be decided if it had political elements IV. INTERNATIONAL ORGANIZATIONS AND
would be to enable any case to be blocked. Quite rightly, this absurd conclusion has
DISPUTE SETTLEMENT
been rejected.
Since international disputes often have both a legal and a political dimension, it
is no surprise to find that on occasion disputes are referred to legal and political A. REGIONAL ORGANIZATIONS
institutions simultaneously. The Tehran hostages dispute, for example, between the
The reference in the Manila Declaration to 'resort to regional agencies or arrange-
United States and Iran was considered by both the ICJ and the UN Security Council in
ments' relates to bodies such as the Organization of American States (OAS), the
1980 and there have also been cases involving regional organizations. Such cases
Organization of African Unity (OAU), NATO, and the EEC, which are recognized in
clearly raise the question of the relation between the legal and the political process,
Article 52(2) of the UN Charter as relevant to the settlement oflocal disputes. s1 There
on which the Court's view, as might be expected, is that each has its own sphere and
is no reference in the Declaration's list to the UN's own procedures, although these
neither is entitled to priority as a matter of principle. 49 This is useful as far as it goes,
are covered in some detail in later provisions which, as well as mentioning the ICJ,
but leaves open questions such as how far the legality of the Security Council's actions
deal also with the Security Council and the General Assembly. Thus the Declaration
may be challenged before the Court, a problem to which as yet there is no clear
acknowledges the role of international political organizations in dispute settlement at
answer. so
both the regional and universal levels.
When the parties to a dispute decide to employ adjudication by, for example,
One of the main functions of regional organizations is to provide governments
concluding an arbitration agreement, or jointly referring a case to the International
with opportunities for diplomatic contact in a structured setting. Although such
Court they are, in effect, agreeing that the legal and political aspects of the dispute
contact serves many purposes, it is something which may be particularly useful
should be separated. When, on the other hand, a case is referred unilaterally, it may be
when there are disputes between member States because it can provide them with an
because the parties view the dispute differently, the applicant seeing the legal aspect
opportunity to discuss their differences when tension may have disrupted normal
as paramount, but the respondent emphasizing its political aspects and so regarding
communication. Such contact, moreover, is by no means restricted to the speech-
it as unsuitable for adjudication. As already noted, a court can decide such a case,
making and formal proceedings of the organization, but also includes behind the
notwithstanding the conflict of characterization, but does so by isolating the legal
scenes activity where the real work is often done. Indeed, informal contact of this kirld
element, thereby effecting a 'depoliticization' which the parties were unable to achieve
may well be more valuable for parties with a dispute since it enables other States to use
consensually.
their influence without having to take a public position.
The point just made is critical because it means that although courts and tribunals
Negotiations, whether formal or informal, are the basic method of dealing
are competent to deal with disputes which present legal issues, however complex their
with disputes, but, as noted earlier, may benefit from the presence of an outsider to
political background, the party whose concerns are with the non-legal elements of the
encourage the dialogue and keep it going, or to make an independent contribution.
dispute may be unwilling to accept the decision. This clearly limits the contribution
Regional organizations provide opportunities for both good offices and mediation,
which adjudication can make to the resolution of international disputes in practice.
as may be seen, for example, in the OAU which has frequently provided these
It is also why appreciating the interaction of legal and political processes is so vital
services in disputes between African States (Maluwa, 1989) and the European Union
and why, when describing the WTO system, we drew attention to both the, role of
which attempted mediation during the break-up of Yugoslavia. Some of these efforts,
consultation and the need for trade rules which all States can regard as legitimate.
including the last, were unsuccessful, but then mediation, it will be recalled, is about
It is not enough to have courts and tribunals capable of handing down legal decisions.
facilitating negotiations, not imposing solutions.
Persuading States to use them, and making their decisions effective, are problems
More formal than mediation are the other diplomatic methods-inquiry and con-
grounded in the political context.
ciliation-and these too can be used by regional organizations. Inquiry, as we have
seen, is essentially a fact-finding exercise, whereas conciliation involves presenting the
parties with specific recommendations. Both processes need an individual or a com-
mission to do the necessary fact-finding or conciliation and the two can sometimes
49 For discussion of the 1993 Genocide case and earlier cases in which this point has been made see
be combined. In 1929, for example, the Conference of American States established a
Merrills, 1998, pp 233-238.
50 For discussion of the 1992 Lockerbie cases which raised this point see Akande, 1997; Merrills, 1998, 51 On the role of regional organizations in general see Fawcett and Hurrell, 1995 and in relation to disputes
pp 249-252. specifically Merrills, 1998, pp 259-285; 2001, pp 195-207. .
 JOHN MERRILLS
body called the Chaco Commission to investigate a dispute between Bolivia and
Paraguay and to make proposals for a settlement. This involved both inquiry
and conciliation and the Commission produced recommendations which the parties
accepted, so demonstrating the value of this type of initiative (Bar-Yaacov, 1974,
pp 199-211). So far we have really been considering ways in which disputes can be
handled through regional organizations, rather than ways in which they can be han-
dled by them. Negotiation and the other diplomatic methods are all processes which
States can, and often do, employ on their own initiative without involving a regional
organization at all. This does not make such organizations irrelevant because they
may provide the spur to make things happen. It does~ however, prompt the question
whether there is action in relation to disputes which only organizations can take. Is
there, in other words, a contribution from regional organizations that is uniquely their
own?
The answer is yes, as may be seen from the following examples. First, a collective
declaration of policy, such as the OAU's 1964 declaration on respecting African
boundaries,52 can both reduce the likelihood of disputes and provide a basis for dealing
with them when they arise. Secondly, though the powers of regional organizations
are subject to international law and not unlimited, in some circumstances they are
entitled to impose sanctions on a recalcitrant member. 53 And thirdly, regional organiza-
tions can playa role in international peace-keeping, 54 or in support of action by
the Security Council under Chapter VII of the Charter. Such measures show how
collective action may be used to pursue goals not open to States acting separately and
the variety of ways in which regional organizations may be involved in international
dispute settlement.
B. THE UNITED NATIONS
Article 1 of the UN Charter sets out the purposes of the United Nations which are:
to maintain international peace and security; to develop friendly relations among
nations; to achieve international cooperation in solving problems of an economic,
social, cultural, or humanitarian character and in promoting human rights; and to be
a centre for harmonizing the actions of States in attaining these ends. These are inter-
related purposes, but the maintenance of international peace and security occupies a
primary place, the UN having a responsibility to bring about cessation of conflict
whenever it occurs and to assist the parties to international disputes to settle their
52 See on the declaration Zartman, 1991. Another example is the adoption in 1991 of a common policy on
recognition towards the States of Eastern Europe by the members of the European Union on which see
Warbrick,1992.
53 For an example see Macdonald, 1963-64, pp 367-372.
54 For a general survey see McCoubrey and Morris, 2000. An interesting illustration of such activity is
provided by the operations carried out by the Confederation ofIndependent States (CIS) in several parts of
the former Soviet Union, which are described by Webber, 1996.
THE MEANS OF DISPUTE SETTLEMENT 549
disputes by peaceful means. Clearly, then, dealing with disputes is a central function
of the Organization according to the Charter. 55
How is this to be done? The Charter assigns a key role to the Security Council and
~ives it the relevant powers in Chapter VI, which is wholly concerned with the peace-
'ful settlement of disputes. Although the Council may make recommendations with a
view to the settlement of any dispute, if all the parties so request, and under Article 34
can investigate any dispute or threatening' situation', its general competence is limited
to disputes 'the continuation of which is likely to endanger the maintenance of inter-
national peace and security'. It is therefore clear that although Article 2(3) imposes
a quite general obligation on member States to settle disputes by peaceful means,
only the more serious disputes, or those which may become serious, are regarded as
the Council's concern.
The particular role of the Security Council is further emphasized in Article 33(1)
which provides that the parties to a dispute within its remit should 'first of all' seek
a solution by negotiation or another peaceful means of their own choice, and Article
52(2), which provides that members of regional arrangements or agencies 'shall make
every effort to achieve peaceful settlement of local disputes' through such arrange-
ments or agencies before referring them to the Security Council. However, despite
these priorities, the Council has the right under Article 36(1) to recommend
appropriate procedures at any time. Moreover, its authority to consider these issues
comes from the relevant provisions of the Charter. Thus, unlike a court of arbitration
or conciliation commission, the Security Council does not require the consent of the
States concerned in order to become involved.
A final point to make about Chapter VI is that the provisions in this part of the
Charter, which are all concerned with encouraging States to use peaceful methods
of settlement, need to be read alongside those of Chapter VII, which giv~ the Security
Council power to impose sanctions. The structure of the Charter can therefore be
seen as designed first and foremost to help States with their problems, but in the last
resort to back this up with coercive measures in disputes or situations which lead to
a 'threat to the peace, breach of the peace or act of aggression'. How well this has
worked in practice is another matter, but in theory at least the Charter equips the
Security Council with enforcement powers to use when they are needed.
Because the Charter envisages the Security Council playing the main role in UN
dispute management, there is nothing as elaborate as Chapter VI or Chapter VII
conferring powers on the General Assembly or Secretary-General. However, these
organs too are given a role. Thus the General Assembly has broad powers of discus-
sion and recommendation under Articles 10 to 14. These are wide enough to cover,
for example, the recommendation of 'measures for the peaceful adjustment of any
situation, regardless of origin, which it deems likely to impair the general welfare or
friendly relations among nations' (Article 14), although this provision, like others
55 From the vast literature on the United Nations the following relate specifically to the issues discussed
in the text: Peck, 1996; White, 1997; Merrills, 1998, pp 220-258; 2001, pp 208-220.
 JOHN MERRILLS
550
relating to the General Assembly, is subject to Article 12, which preserves the primacy
of the Security Council.
The role of the Secretariat is set out in Articles 98 and 99 of the Charter which,
though brief, are very important. Article 98 speaks of the Secretary-General perform-
ing secretarial (ie, administrative) functions for the General Assembly, the Security
Council, and the other principal organs and performing (such other functions as are
entrusted to him by these organs'. Under this provision, then, tasks relating to dis-
putes and other matters may be delegated to the Secretariat. Article 99, on the other
hand, refers to the Secretary-General bringing (to the attention of the Security
Council any matter which in his opinion may threaten the maintenance of inter-
national peace and security'. Here therefore the Secretary-General is given a power of
initiative which, as will be seen, has proved highly significant.
C. THE CHARTER SYSTEM IN PRACTICE
The United Nations is often criticized for failing to solve the world's problems and
the v~idity of this criticism, at least in relation to disputes, is· something we must
consider. Before doing so, however, something should be said about what the UN
has been able to achieve, beginning with the work of the political organs. As noted
above: both the General Assembly and the Security Council are entitled to make
recommendations and both organs have used this power extensively, to try to calm
disputes, to urge the use of particular methods, or in some cases to recommend
specific terms for a settlement. As these are merely recommendations, they can be, and
often are, ignored. On the other hand, such UN involvement has the effect of bringing
diplomatic pressure to bear and is sometimes helpful in providing States which may
be locked on a collision course with a way out of their difficulty.
It was pointed out earlier that the existence of regional organizations stimulates
negotiation by bringing States together in a setting where diplomatic contact is easy
and can be encouraged by others. The United Nations funCtions in a similar way with
the advantage that at the UN diplomacy is possible not just among States which are
neighbours, but on a worldwide scale. Providing a setting for diplomatic contacts is
useful in itself, but it is often possible to go further and use the Organization's own
machinery to facilitate negotiations. One rather formal method is to appoint a com-
mittee of selected member States to assist negotiations, as was done for discussions
on Indonesia's independence in 1947. Another is to use individuals as mediators or
conciliators, which has been one of the Secretariat's most significant activities.
The contribution which fact-finding can make to the resolution of certain types
of disputes has also already been mentioned. This too is a matter on which the
UN may be able to help and there are many examples of the Security Council or
the General Assembly creating subsidiary organs for this purpose. 56 As we have seen,
56 For a review of early UN practice, examining the value and limitations of this form of activity see
Plunkett, 1968-69.
THE MEANS OF DISPUTE SETTLEMENT 551
this is something which the States concerned could do for themselves utilizing
the inquiry procedure of the Hague Conventions, but this requires the parties to
agree and by the time a dispute reaches the UN it is usually plain they are not
going to do so. The Organization's contribution is therefore to fill this gap by
promoting the necessary investigation, in an attempt to bring the parties closer
together.
If the political organs cannot help directly, or do not wish to do so, they can refer a
dispute to another body, a regional organization, for example, or another UN organ.
So long as it is not merely a way of evading responsibility (as it can sometimes be),
passing a dispute on in this way may be a desirable step A case in point is legal
disputes, which Article 36(3) says shouid (as ~general rule' be referred to the Inter-
national Court. The General Assembly and the Security Council may also ask the
Court for advisory opinions and this power is potentially very important in disputes
like that in the Western Sahara case57 which involve decolonization or other United
Nations policies. It cannot be said, however, that the political organs use the Court as
often as they might with the result that opportunities to engage it in their work have
been somewhat neglected.
The political organs, and the Security Council in particular, though active in the
ways described, have frequently been slow to act; however, the same cannot be said
for the Secretary-General, whose work under Articles 98 and 99 has often formed the
main, or even the only element in a United Nations response. As regards Article 98,
one of the most important contributions has been to provide good offices and
mediation when the authorizing organ perceives a need to help the parties with
negotiations (Franck and Nolte, 1993; Skjelsbaek and Ferrnann, 1996). In such
cases introduction of the Secretary-General as a neutral third party, supported by
the Security Councilor the General Assembly can be a constructive move. Among the
many examples of such involvement are the Secretary-General Waldheim's creation
of a fact-finding and conciliation commission, together with the provision of good
offices, in the Diplomatic Hostages crisis of 1979, and the good offices of Secretary-
General Boutros-Ghali, following the invasion of Kuwait in 1990.
The powers of initiative possessed by the Secretary-General under Article 99 have
been interpreted broadly which has made this provision just as important in practice
as Article 98. Consequently, a similar range of activities has been undertaken. It is
important to appreciate, however, that even when exercising initiative under Article
99, the Secretary-General has always been careful to coordinate his work with that
of the political organs, especially the Security Council (Perez de Cuellar, 1993). This
underlines the point that the primary responsibility for making the UN system
work lies. with the member States. If they fail to play their part it is pointless
expecting the Secretary-General to fill the gap and blaming him when things go
57 Western Sahara, Advisory Opinion, IC! Reports 1975, p 12. See also the Namibia case, Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (270), Advisory Opinion, IC! Reports 1971, p 16.
55 2 JOHN MERRILLS
wrong. The Secretary-General has a key role, but cannot carry the whole burden of
dispute management for the United Nations.
D. THE VALUE AND LIMITATIONS OF ORGANIZATIONS
Enough has been said to indicate that political organizations can make a useful
contribution to the management and resolution of international disputes. However,
various factors which can limit their activity must now be noted. To take regional
organizations first, one very obvious limitation is that they are unlikely to be very
effective in disputes which cross regional boundaries, ie, in disputes between States
from different regions. Another, no less significant, is that regional organizations are
often reluctant to become involved in disputes within States, for example, civil wars
and other internal conflicts. A further limitation is that most regional organizations
lack resources and so may simply be unable to undertake the more expensive kinds of
institutional activities such as peace-keeping.
Turning to the United Nations, its involvement in disputes has tended to reflect the
extent to which the major States have seen UN action as something which is in their
interests. This means that in many disputes there has been little UN involvement, or
its contribution has been only marginal. "Where the UN has been involved, the record
underlines the point made ~t the beginning about the need to manage international
disputes when they cannot be settled. Not many disputes have been settled through
the UN, compared with the large number which have been managed, in the sense
of being dealt with in some way, through the Organization's processes. This is particu-
larly clear in the case of peacekeeping operations, for example, which have almost
always been concerned with stabilizing situations, so as to create conditions in which
other processes can be used.
To see why all this is so is to begin to understand the nature and limitations of the
UN system. The Organization is a reflection of the social and political relations of
States. Although constructive steps have sometimes been taken, effective action is
usually possible only insofar as States are prepared to relinquish control and seek
assistance. "When things become sufficiently serious, a UN presence or other initiative
may be acceptable, but unless what is wanted is simply a face-saving arrangement,
settling the basic problem is likely to be much more difficult. As a consequence, in
very many cases prophylactic measures may be all that is politically possible, yet the
fact that a festering dispute remains unresolved will be accounted another failure of
the Organization.
In An Agenda for Peace,58 his 1992 report to the Security Council, Secretary-General
Boutros-Ghali examined the potential of the United Nations in the fields of pre-
ventive diplomacy, peace-keeping, peace-making and post-conflict peace-building.
The report described what the Secretary-General saw as the contribution which
regional organizations could make to resolving disputes, emphasizing, as might be
58 5C Doc 5/24111,17 June 1992. Text in (1992) 31 ILM 953.
THE MEANS OF DISPUTE SETTLEMENT
553
expected, that they must act in a manner consistent with the Charter and that the
Security Council has primary responsibility for maintaining international peace and
security. However, provided these constitutional limitations are respected, regional
action could lighten the Security Council's burden and 'contribute to a deeper sense
of participation, consensus and democratization in international affairs'. 59
As the Secretary-General indicated, cooperation between regional organizations
and the UN is particular useful in situations which call for peacekeeping forces
or related action and recent events have demonstrated how institutions can per-
form complementary functions when the political atmosphere is favourable. In the
complex situation in Central America in the 1980s, for example, the main diplomatic
work was carried out through the regional Contadora process, but when security
arrangements were needed, a UN force (ONUCA) was established by the Security
Council ("White, 1993, pp 226-227). Similarly,· in the Liberian crisis of 1990 peace-
keeping forces were supplied by the local sub-regional organization (ECOWAS)
and subsequently supported both politically and on the ground by the UN ("White,
1996, pp 217-219). It is scarcely necessary to add that cooperation between organiza-
tions presents many difficulties and is not a panacea. But if there is still far to go
before we can speak of a global-regional peace-making system, what An Agenda for
Peace calls 'this new era or opportunity',60 makes it worth working for.
One final point. Institutions exist to help with disputes which States are incapable
of dealing with themselves. It follows that these will tend to be the more difficult
cases and it should be no surprise if even moderate success is often elusive. However,
whether a dispute is referred to an organization or not, the primary responsibility
remains with the governments concerned. Organizations are valuable and worth
improving, but institution building is no more a substitute for responsible behaviour
internationally, than it is in domestic affairs.
V. CONCLUSION
International law requires States to resolve tht!ir disputes peacefully and the primary
means available for them to do so remains negotiation, sometimes assisted by
good offices and mediation from third parties, and including today new forms of
diplomacy associated with the ever-expanding role of international organizations.
With the introduction of inquiry and conciliation we find third party assistance
formalized in processes which provide the benefit of independent findings or recom-
mendations, but with no prior commitment to accept the result. The non-binding
character of these methods means they should be thought of more as ways of moving
a dispute forward than of settling it, but their value and flexibility may be seen in
international practice.
59 Ibid, para 64. 60 Ibid, para 63.
554 JOHN MERRILLS
THE MEANS OF DISPUTE SETTLEMENT
555

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FAWCETT, L and HURRELL, A (eds) (1995),
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FORSYTHE, DP (1985), 'Humanitarian
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No student of current affairs needs to be told that dispute settlement is a subject Evans, pp 123-140.
on which the gulf between rhetoric and reality is conspicuously wide. All too often GREENBERG, MC, BARTON JR, and
CHURCHILL, RR (1985), 'Maritime Delimi-
governments express support for general propositions like those to be found in the MCGUINESS, ME (eds) (2000), Words
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of Decisions of the United Nations?', 46 EVANS, MD (1991), 'The Restoration of LAUDY, M (2000), 'The Vatican Mediation
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- - (1998), International Dispute Settle-
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- - (1999), 'The Contribution of the Per-
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- - (2000), 'The International Court of
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873-901-
- - (2001), 'The Management of Inter-
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MERRILLS, JG and ROBERTSON AH (2001),
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MULLER, AS, RAIc, D, and THURANSZKY,
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PEREZ DE CUELLAR, J (1993), 'The Role of
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SICK, G (1985), 'The Partial Negotiator:
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SKJELSBAEK, K and FERMANN, G (1996),
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THE MEANS OF DISPUTE SETTLEMENT
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FURTHER READING
COLLIER, J and LOWE, AV (1999), The
Settlement of Disputes in International
Law (Oxford: Oxford University Press). A
wide ranging survey with the focus on
institutions and procedures for dealing
with disputes involving individuals, cor-
porations, and other non-State actors, as
well as States.
MERRILLS, JG (1998), International Dispute
Settlement, 3rd edn (Cambridge: Cam-
bridge University Press). A review of dis-
pute settlement in its legal and political
context, explaining what techniques and
institutions exist for dealing with disputes
involving States, how they work and when
they are used, and containing many
practical examples.
557
WElL, P (1996), 'L'Equite dans la Juris-
prudence de la Cour Internationale de
Justice', in Lowe and Fitzmaurice,
pp 121-144.
WHITE, ND (1993), Keeping the Peace
(Manchester: Manchester University
Press).
- - (1996), The Law of International
Organisations (Manchester: Manchester
University Press).
- - (1997), Keeping the Peace, 2nd edn
(Manchester: Manchester University
Press).
ZARTMAN, IW (1991), 'Conflict Reduction:
Prevention, Management and Resolu-
tion', in Deng and Zartman, pp 299-320.
PECK, C (1996), The United Nations as a
Dispute Settlement System (The Hague:
Kluwer). A comprehensive study of the
characteristics of the United Nations
system from a dispute settlement pers-
pective with some perceptive observa-
tions about its potential for further
development.
UNITED NATIONS (1992), Handbook on the
Peaceful Settlement of Disputes between
States (New York: United Nations). A
succinct account of the means available,
covering diplomatic and legal methods, as
well as the role of political organizations.
Very good at a descriptive level and as a
source of reference, though rather short
on critical evaluation.
 18
THE INTERNATIONAL COURT
OF JUSTICE
Hugh Thirlway

SUMMARY

The International Court of Justice, the principal judicial organ of the United Nations, is a
standing tribunal to which States may bring their disputes, and which is empowered to give
advisory opinions to United Nations organs and specialized agencies. Its jurisdiction
derives from the consent of the States parties to the case, which may be given either
directly in respect of a specific dispute, or in advance in respect of a defined class or
category of disputes; the Statute of the Court also provides for acceptance of a general
\compulsory' jurisdiction by simple declaration, which may however be subject to reserva-
tions. Decisions of the Court, given after an extensive written and oral procedure, are
binding on the parties in respect of the case, but not otherwise.

1. INTRODUCTION

The International Court of Justice is often referred to in non-technical contexts as the

'World Court', but this is perhaps misleading. Such an appellation may suggest
the international equivalent of a national supreme court, a body of worldwide juris-
diction, empowered to pass judgment on the legal rights and duties of all States from a
position of superiority and supervision. No such tribunal however exists. The Inter-
national Court can better be seen as a standing mechanism available for the peaceful
settlement of disputes between States, to the extent that they wish to make use of it.
No dispute can be the subject of a decision of the Court unless the States parties to
it have consented to the Court's jurisdiction over that specific dispute, or over a class
of disputes of which that dispute is one. Access to the Court is enjoyed by all members
of the United Nations, but its 'compulsory jurisdiction' (also a somewhat misleading
term) is accepted by only a fairly small number of States, and for the most part with
reservations that limit effective jurisdiction to certain classes of dispute.
 HUGH THIRLWAY
The Court is defined in the United Nations Charter (Article 92) as the 'principal
judicial organ' of the Organization, but here also the term 'judicial' serves to dis-
tinguish the role of the Court from that of the political organs, the General Assembly
and Security Council. It does not signify that the Court enjoys, within the Organiza-
tion, any position resembling that of the supreme court or constitutional court of
a State. It has, for example, no overriding power to interpret the Charter, and the
question whether it is entitled to examine the legality of a decision adopted by one of
the other principal organs is controversial. I
Despite these limitations, the Court has, as we shall see, an important role to play in
the settlement of disputes, and thus the maintenance of international peace, and in
the development of international law. Its function is defined by its Statute (Article 38)
as being 'to decide, in accordance with international law, such disputes as are sub-
mitted to it'. It is further empowered to give advisory opinions on legal questions
at the request of the Security Council or the General Assembly; subject to certain
limitations (to be examined below), such opinions may also be requested by other
organs and agencies authorized by the General Assembly.
II. HISTORY
The present Court was established by the United Nations Charter, and came into
existence with the election of the first members in February 1946. It was however
created as the successor to the Permanent Court of International Justice, established
pursuant to Article 14 of the Covenant of the League of Nations in 1921, and was
modelled closely on that body.
The move towards the creation of a standing international judicial body came
as the culmination of the trend, throughout the nineteenth and early twentieth
centuries, to make increasing use of arbitration as a means of settling international
disputes. (The development of arbitration, its operation, and its advantages and dis-
advantages, are dealt with in the preceding chapter.) Two practical problems however
stood in the way of implementing proposals for the establishment of such a per-
manent body. When a dispute was taken to arbitration, the arbitrators were appointed
by the States parties to the dispute (or by a third party nominated by them), and the
expenses of the arbitration were borne by the parties. If a standing tribunal were set
up to try future disputes, how were its judges to be appointed, and how should it be
financed? The Permanent Court of Arbitration, created in 1899, had gone some way
to meet the difficulty, by establishing a large panel of potential arbitrators from whom
I The question has been debated before the Court in the cases of the Aerial Incident at Lockerbie
(Libya v United Kingdom, Libya v United States), but at the time of writing the Court has not yet ruled on
the point.
THE INTERNATIONAL COURT OF JUSTICE
States could choose for a particular dispute, and by setting up a small standing
secretariat, but this did not amount to a true court. With the creation of the League of
Nations, it became possible to set up a system of election of members of the new
Court by the League Council and Assembly, and for the expenses of the Court to be
met out of the budget of the League.
It was originally hoped that the new Court would have a status approximating
to that of a 'World Court' as described above, and in particular that it would
have universal compulsory jurisdiction, at least over members of the League. This
proved over-optimistic; as explained further below, the Court's jurisdiction had
to be consensual, and it was too much to expect States to give a new and untried
body a blank cheque to this extent. Jurisdiction could be conferred ad hoc by
agreement, or accepted by treaty in advance for defined categories of disputes;
and the 'optional clause' of Article 36(2) of the PCU Statute, whose operation
is explained below, went as far as was possible for the time in the direction of
compulsory jurisdiction.
The history of the Permanent Court during the inter-war period was generally a
satisfactory one; it gave a number of judgments and advisory opinions, some on
matters of acute political or legal delicacy, and its operation inspired increasing con-
fidence. The fact of its existence was also a force for peaceful settlement, since the
possibility that a dispute might be brought before it, with the attendant publicity, was
an inducement to reach a negotiated settlement. However, although not formally an
organ of the League, its fortunes were bound up with those of the League; and the
paralysis of the League caused by the outbreak of the Second World War already
impeded the Court's work even before the German invasion of the Netherlands,
where the Court had its seat, brought it completely to a halt.
The Allies' plans for a new post-war international organization included provision
for a judicial body; the possibility of keeping the Permanent Court in being was
considered, but it was thought better to let it disappear with the League of Nations,
and set up a new Court to continue its work. However, the new International Court
of Justice was not only to take over the premises and archives of the pre-war Court,
but also, so far as possible, to inherit its jurisdiction. Numerous treaties had been
concluded providing for settlement of disputes by the Permanent Court; the Statute
of the new Court provided that, as between parties to that Statute, such treaties should
be read as referring to the new Court. 2
2 Similarly, pre-war 'optional clause' jurisdiction was preserved, so far as possible: see note 18 below. These
provisions of the Statute did not specifically regulate the position of States parties t~ the Statute of the
Permanent Court who did not become members of the United Nations, and thus partles to the Statute of
the new Court, until many years after the Permanent Court had ceased to exist. For the handling of lacu~as
of this kind, see Temple of Preah Vihear, Preliminary Objections, IC! Reports 1961, p 17; Barcelona TractIon
Light and Power Company Preliminary Objections, IC! Reports 1964, p 6.
 HUGH THIRLWAY
III. STRUCTURE AND COMPOSITION
The Court consists of fifteen judges, elected by the Security Council and the General
Assembly for terms of nine years; the elections are staggered so that five judges
complete their terms of office every three years. A judge may be re-elected (and this
has frequently occurred), but the system thus ensures that a regular renewal of the
bench is possible, while at the same time preserving continuity. Judges are elected as
individuals, not as representatives of their countries, and are required to make a
solemn declaration in open court of impartiality in the exercise of their functions.
They may not engage in any other occupation during their period of office.
No two members of the Court may be of the same nationality.3 The Statute (Article
9) directs that the election be such as to ensure the representation of (the main forms
of civilization and of the principal legal systems of the world'. There is no official
allocation. of seats on this (or any other) basis, but it is a long-standing convention
that the candidate of each of the permanent members of the Security Council will
always be elected, and the other seats are unofficially distributed between various
regions of the world.
The salaries of the judges, and the other expenses of the Court, are borne by the
United Nations, as part of the regular budget. The seat of the Court is at The Hague,
in the Peace Palace, where the Court occupies premises under an agreement between
the United Nations and the Carnegie Foundation, the owner of the building. The
President of the Court (elected triennially by his colleagues) is to (direct the work and
supervise the administration of the Court' (Rules, Article 12). The day-to-day
administration of the Court is the responsibility of the Registry, headed by a Registrar,
elected by the Court for a seven-year term.
Cases are heard by the full Court unless the parties to a case agree that it shall be
heard by a chamber (see below). A judge is not required to withdraw if a case is
brought by the State of which he is a national; on the contrary, he is bound to sit in all
cases before the full Court, unless there are special reasons, other than the mere fact of
nationality, why it would be inappropriate for him to sit. (If however the President
of the Court is a national of one of the parties to a case, he does not preside in the
case, but hands over the presidency to the Vice-President or senior judge.) The dis-
qualification or withdrawal of a judge is dealt with by Articles 17 and 24 of the Statute:
the commonest reason for exclusion is that the judge has, prior to his election, already
been involved in the case, for example, as having advised one of the parties.
The possible presence on the bench of a judge of the nationality of one of the
parties was seen, when the Statute was drafted, as suggestive of inequality, despite the
fact that members of the Court are required to act impartially. This view is defended
on the ground that the presence of a (national judge', even one bound to decide
impartially, is still valuable for ensuring justice for the State of which he is a national,
3 But a judge ad hoc (see below) may have the same nationality as an elected member of the Court.
---------
THE INTERNATIONAL COURT OF JUSTICE
since he can ensure that the case presented by his country "is fully understood. Rather
than requiring withdrawal of the judge in such circumstances, the Statute therefore
enables the other party to a case of this kind to nominate a person to sit as judge solely
for that case, with the title of judge ad hoc. 4 The Statute also provides, consistently
with the idea of the benefit of a (national judge', that in a case where neither party has
a judge of its nationality on the Bench, and thus there is no inequality between the
parties, each party may choose a judge ad hoc. In such cases, the parties however quite
often agree that neither of them will exercise their right to a judge ad hoc.
Elected members of the Court not infrequently vote against the State of their
nationality, but to date judges ad hoc have nearly always voted in favour of the State
that appointed them;s and it is perhaps too much to expect that they should do
otherwise.
In addition to certain standing chambers (in practice virtually never used),6 a
chamber may be formed by the Court to deal with a specific case, if the parties so
request. The number of judges to constitute such a chamber is determined by the
parties, but the individual judges to be members of it are elected by the Court, and
the composition of the chamber is thus, theoretically, outside the control of the
parties. In practice however it has become accepted that if the parties indicate that
certain names would be acceptable, the Court is virtually certain to elect them, if only
because the creation of a chamber composed otherwise than as desired by the parties
would be likely to result in the case being withdrawn and referred to some other
method of settlement. 7
Reference of a case to a special chamber of the Court, a procedure long neglected,
has become more popular over the last twenty years. 8 To some extent the use of
chambers makes for greater flexibility and thus tends toward speedier settlement
of cases; but simultaneous operation of two chambers is only possible if no member
of one chamber is also a member of the other. In tribunals where the chambers are
established by the tribunal itself, as sub-units (eg, the International Criminal Tribunal
for the Former Yugoslavia), this can be arranged; but where the membership
of chambers is in effect left to the parties to determine, experience shows that
4 There is however no requirement that the judge ad hoc be of the nationality of the party appointing him,
and this is frequently not the case.
S The principal exception has been the vote of Judge ad hoc Suzanne Bastid (incidentally the first woman
to sit as a judge), appointed by Tunisia, against the request of that State for revision of the Judgment in the
Continental Shelf case (Tunisia/Libya).
6 The experience with special chambers suggests that the reason for the neglect of the standing chambers is
probably that their composition is determined in advance by the Court, and the parties have no say in it.
7 The first request for a special chamber, by the United States and Canada in the Gulf of Maine case, was
made pursuant to a treaty which provided explicitly that the case would be transferred to arbitration if the
Chamber was not formed as the parties wished. Subsequent "approaches to the Court have been more tactful.
8 The following cases have been decided by chambers: Gulf of Maine (1984); Frontier Dispute (Burkina
Faso/Mali) (1986); Eletronica Sicula (1989); Land, Island and Maritime Frontier Dispute (1992). Chambers
have been established to hear the following further cases: Application for Revision of the Judgment of
11 September 1992 in the Land, Island and Maritime Frontier Dispute (2002); Frontier Dispute (Benin/Niger)
(2002).
 HUGH THIRLWAY
overlapping membership is frequent. The use of chambers has thus not appreciably
accelerated the procedure of the International Court.
IV. PROCEDURE
The procedure before the Court is regulated primarily by its Statute. Under Article 30
of the Statute the Court has power to make rules 'for carrying out its functions',
including rules of procedure. The Rules of Court adopted in 1946 were modelled
closely on those drawn up by the Permanent Court; they were revised in part in 1972,
and more radically in 1978. Further revisions of detail have been effected in more
recent years. The Court has recently found it useful to regulate detailed matters of
procedure in a more informal way, by issuing 'Practice Directions' interpreting and
implementing the Statute and Rules. The hierarchy of norms is of course that Practice
Directions cannot be inconsistent with the Rules or the Statute, and the Rules cannot
depart from the Statute. 9 Generally, the extent to which the broad lines of the pro-
cedure laid down in the Statute of the Permanent Court, and in the Rules adopted by
that body, have been maintained, is a tribute to the work of the jurists of the inter-war
period. The official languages of the Court are French and English.
The proceedings in contentious cases are set in motion in one of two ways. If the
parties have concluded an agreement (compromis or Special Agreement) to bring the
dispute before the Court, the case begins with the notification of this to the Court. If
not, one State may file an application instituting proceedings against another State,
and the Registrar communicates this to that State. In either event, all other States
entitled to appear before the Court are notified of the institution of proceedings. The
procedure thereafter represents something of a blend of the continental· system
of extensive written pleadings, and the Anglo-American common law system in
which the hearing, the 'day in court', is the essential element. In a first stage, the
parties exchange written pleadings (Memorial by the applicant, Counter-Memorial by
the respondent; in some cases followed by a Reply (applicant) and a Rejoinder
(respondent), but these additional pleadings are now exceptional). There then
follows a hearing, usually taking up several days or even weeks, at which the parties
address their arguments to the Court in the same order: a presentation by the appli-
cant, followed by a presentation by the respondent, and a much briefer 'second round'
devoted to refutation of the opponent's contentions. VVhen the case is brought by
special agreement, rather than by a unilateral application filed by one State against
another, neither party is, strictly speaking, in the position of applicant or respondent;
9 For an example of a challenge to a provision in the Rules on the ground that it was inconsistent with the
Statute, see the dissenting opinion of Judge Shahabuddeen in the Land, Island and Maritime Frontier Dispute,
(El Salvador/Honduras), Application to Intervene, Order of28 February 1990, IC! Reports 1990, p 18ff.
THE INTERNATIONAL COURT OF JUSTICE
the order of speaking is determined by the Court, taking into account the views of
the parties. lO The hearing is open to the public; the Court has power to hold a closed
hearing (Statute, Article 46), but has done so only on one occasion. The written
pleadings are normally made available to the public at the time of the opening of the
oral proceedings (Rules, Article 53(2) ).
Evidence is normally submitted in the form of documents, though it may of course
take other forms (eg, photographs, physical objects); witnesses may give written evi-
dence, or appear at the hearing to give their evidence orally, in which case they may be
cross-examined by the other party. The procedure in this respect is modelled broadly
on Anglo-American practice. Hearsay evidence does not carry weight;ll and in the
case of Mili.tary and Paramilitary Activities in and against Nicaragua the Court
expressed some reservations as to the value of evidence of government ministers and
other representatives of a State, who could be taken to have some personal interest in
the success of their government's case. 12
The burden of proof of fact, in accordance with general procedural principles, rests
upon the party alleging the fact. In accordance with the principle iura novit curia, the
parties are not required to prove the existence of the rules of international law that
they invoke; the Court is deemed to know such rules. An exception to this is where a
party relies on a customary rule which is not one of general law (local or special
custom): in this case, the party must 'prove that this custom is established in such a
manner that it has been binding on the other Party'. 13 In practice, particularly where
the existence of a particular rule of general law is controversial, States will devote
much argument to demonstrating that it does, or does not, exist, citing the facts of
State practice in support.
The sources of international law to be applied by the Court, enumerated in Article
38 of the Statute have been discussed in Chapter 4 above: international treaties and
conventions; international custom; general principles of law; and the subsidiary
sources, ie, decisions of tribunals 14 and opinions of jurists.
The decision of the Court is adopted by majority vote, the President of the Court
having a casting vote in the event of a tie. Every judge has the right to append to the
decision an individual statement of his views, entitled 'separate opinion' if he agrees
with the decision, or 'dissenting opinion' ifhe does not. Until 1978, the way in which
a judge had voted would not become public unless he chose to attach such an opinion;
but the revised Rules of Court adopted in that year provided that in future the
decision would indicate not only the numbers of the votes on each side, but also the
names of the judges.
10 The order of speaking is different in proceedings on preliminary objections or requests for the indica-
tion of provisional measures; these proceedings are explained below.
II Cf Corfu Channel, Merits, Judgment, ICJ Reports 1949, p 4 at pp 16-17; Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v USA), Merits, Judgment, ICJ Reports 1986, p 42, para 68.
12 Ibid, para 70.
13 Asylum, Judgment, ICJ Reports 1950, p 266 at p 276.
14 For the treatment by the Court of its own decisions, see Section VII below.
 566 HUGH THIRLWAY
v. THE COURT'S JURISDICTION
Emphasis has already been laid on the fact that the jurisdiction of the Court, like that
of any international judicial or arbitral body, is based upon the consent of States. The
application of this principle is however complicated as a result of the fact that the
Court is a permanent institution.
In the first place, the Court is a treaty-based institution, created and regulated by
the United Nations Charter and the Statute of the Court (which is in fact an (integral
part' of the Charter: Article 92); this means that the general scope of its jurisdiction,
and the conditions of its exercise, are defined ne varietur by those instruments.
Jurisdiction in this sense, relating to access to the Court, and to the general nature of
the powers it possesses, is thus a function of the will of the body of States parties to
the Charter and Statute, not of the will of the specific parties to a given dispute. The
consent of the parties to the dispute cannot therefore abrogate or modify statutory
provisions of this kind; it is in fact those provisions that determine how, for example,
the necessary consent may be given for the creation of jurisdiction in specific cases.
Secondly, the jurisdiction of the Court may be, and frequently is, asserted on the
basis of treaty instruments of a general nature conferring future jurisdiction over a
range or category of disputes. When the instrument was concluded, no such disputes
will have been in existence, but the possibility that such may arise will have been
foreseen, and consent given in advance to the binding determination of them by the
Court. When a dispute is subsequently brought before the Court on the basis of a
clause of this kind, that advance consent creative of jurisdiction is still operative
(assuming that the treaty has not been denounced), but it may well not be accom-
panied, at the time that the matter is brought to the Court, by actual contemporary
consent or willingness to have that particular dispute settled by decision of the Court.
The respondent State may therefore seek to deny that the general consent given in the
past applies to the specific dispute, because, for example, it does not really fall within
the category of disputes contemplated, or because any conditions attached to it have
not been met in the specific case. The Court, in order to be satisfied that consent to its
dealing with the dispute has actually been given, will have to analyse, in sometimes
painstaking detail, the provisions of the relevant instruments in order to trace a link
between the (blanket' consent given by the respondent and the facts of the particular
case. The principle remains simple: has the respondent State given consent to juris-
diction? Its application may however involve much subtle and complex argument.
A. JURISDICTION: STRUCTURAL LIMITATIONS
The most basic limitation on the Court's jurisdiction is that provided in Article 38
of the Statute: (Only States may be parties to cases before the Court'. The reference
is of course to sovereign States in the sense of the principal category of subjects of
international law, and excludes the component States of federations, for example.
THE INTERNATIONAL COURT OF JUSTICE
A case cannot be brought by or against a non-State entity, such as an individual,
a non-governmental organization, or a multinational, even if the other party is a State
and consents to the case being brought. Nor can an intergovernmental international
organization (not even the United Nations itself) be a party, though the major ones
are empowered to ask the Court for advisory opinions.
To be a party to a case, a State must also be one of those to which the Court is
(open', or having (access' to the Court under Article 35 of the Statute. The principal
category of States with such access is that of the members of the United Nations, but
technically this is because they are automatically parties to the Statute of the Court
(Article 35(1)). It is possible for a State to become a party to the Statute without
joining the United Nations; Article 93(2), of the Charter provides that the conditions
for this are to be laid down by the General Assembly, on the recommendation of the
Security Council. IS Furthermore, under Article 35(2) of the Statute, the Security
Council is empowered to lay down the conditions on which other States not parties
to the Statute may have access to the Court. Security Council Resolution 9 (1946)
implements this provision, and provides for the deposit with the Secretary-General of
a declaration accepting the jurisdiction of the Court and undertaking to comply with
its decisions.
The application of these provisions is normally simple, inasmuch as it is generally
evident at the outset of a case whether the parties are States having access to the
Court;16 and if one of them is not, then the case cannot proceed, even with the
consent of the other party. If for example an individual attempts to bring a case before
the Court (as frequently happens), the Registrar draws his attention to the provisions
of Article 38, and no further action is necessary.
A similar limitation is imposed by the provisions of the Statute concerning
the nature of the Court's judgment, which is (final and without appeal'. The Court
cannot, even at the request of the parties, give a provisional or conditional judgment
(though it can give a declaratory judgment, confined, for example, to certain
aspects of a dispute). For example, parties to a case before the Permanent Court of
International Justice requested the Court to give an informal and non-binding
indication of how it was minded to decide, so that they could negotiate a settlement
on that basis; but the Court declined, on the basis that it had no power to give a ruling
IS This procedure was followed for Switzerland (1946), Liechtenstein (1949), San Marino (1953), and
Nauru (1987).
16 An exception is the case of the Application of the Genocide Convention (Bosnia and Herzegovina v
Yugoslavia). Following the break-up of the former Socialist Federal Republic of Yugoslavia, for a time the new
Republic of Yugoslavia (Serbia and Montenegro) was treated by the United Nations as the successor of the old
Yugoslavia, and on that basis it was made respondent to the proceedings before the Court. On 1 November
2002, however, after the Court had indicated certain provisional measures in the case, and had given judg-
ment dismissing certain preliminary objections, the new Yugoslavia was admitted to the United Nations as a
new member. Yugoslavia filed an Application for Revision of the Court's judgment on the preliminary
objections on the basis that this admission showed that it had not previously been a party to the Statute. The
Court however dismissed the Application on the ground that this event was not a 'new fact' within the
meaning of Article 61 of the Statute (see Section vi.C, p 21, below).
568 HUGH THIRLWAY
of this kind, which would be dependent for its implementation on the wishes of
the parties. I7
B. JURISDICTION IN PARTICULAR CASES
1. Special agreements and compromissory clauses
The simplest means of putting into effect the principle that jurisdiction is conferred
on the Court by the consent of the parties is for two States that wish a dispute to be
settled by the Court to enter into an agreement to that effect. This is the classic
compromis or Special Agreement, used for many years prior to the establishment of
the Court for the submission of a dispute to arbitration. Such an agreement will
define the dispute and record the agreement of the parties to accept the Court's
decision on it as binding-this last being theoretically unnecessary in view of the
provisions of the Charter and Statute. It may also contain provisions as to the pro-
cedure to be followed (number and order of written pleadings, possibly waiver of
the right to appoint judges ad hoc, etc.). Normally no jurisdictional problems arise in
a case brought before the Court by special agreement, since the consent of the parties
is real and contemporaneous, rather than given in advance and in general terms.
When a special agreement has been concluded, t4e procedural step by which a case is
brought before the Court, in technical language the seising of the Court, is the notifi-
cation of the agreement to the Court. Whether this is done by one party or by both
parties jointly, the essence of a case of this kind is that it is a joint approach to the
Court, not an action commenced by one party against the other.
Where jurisdiction is asserted on the basis of some instrument other than a special
agreement, the Court is seised unilaterally, by an application, indicating the subject of
the dispute and the parties. The active State claims that the other party to the dispute
has in the past consented to settlement of disputes of a particular category being
referred unilaterally to the Court for settlement, and that the instant dispute falls into
that category. In a case of this kind, the consent creative of jurisdiction will, according
to the applicant, have been given in advance. It may take the form of a compromissory
clause, that is to say a clause in a treaty providing that all disputes relating to the
application or interpretation of the treaty may be brought by one or the other party
before the Court by unilateral application. Alternatively, the treaty itself may have
been concluded for the purpose of making advance provision for the settlement by
the Court of all disputes (or certain categories of disputes) that may subsequently
arise between the parties: a treaty of judicial settlement (often combined with a treaty
of friendship or commercial relations).
If a case is brought before the Court by unilateral application, there is thus
normally a pre-existing title of jurisdiction in the form of a treaty between the parties
of this kind, or in the form of acceptances of jurisdiction under the 'optional clause',
17 Free Zones of Upper Savoy and the District of Gex, Order of 6 December 1930, PClj, Ser A, No 24, at p 14.
THE INTERNATIONAL COURT OF JUSTICE
to be discussed below. This does not mean, however, that an application that fails to
specify such a pre-existing title is invalid; the Statute of the Court (Article 40) only
requires an application to specify 'the subject of the dispute and the parties', and
the Rules of Court (Article 38(2) ) only require that it indicate 'as far as possible' the
basis of jurisdiction relied on. Consequently, an application may be made which in
effect invites the State named as respondent to consent to jurisdiction simply for the
purposes of that particular case, a process known as fOTum pTorogatum. At one time
this possibility was being abused for political ends, applications being made simply for
publicity purposes against States whose known attitude to judicial settlement made it
certain that no such consent would be forthcoming. As a result, a special provision
(Article 38(5)) was included in the Rules of Court in 1978 whereby an application of
this kind is treated for procedural purposes as ineffective until the consent of the
named respondent is forthcoming-usually it is not.
2. The 'optional clause' system
At the time of the drafting of the Statute of the Permanent Court in 1920, it was
first envisaged that the new Court would have universal compulsory jurisdiction,
in the sense that any State party to the Statute could bring before the Court, by
unilateral application, any dispute whatever with another State party to the Statute.
The necessary consent conferring jurisdiction would thus be given simply by acces-
sion to the Statute. However, it was soon realized that the majority of States were not
ready for so radical an innovation, and the optional clause system was devised as
being the furthest that it was then possible to go in the direction of compulsory
jurisdiction. This system was carried over, without change of substance, into the
I8
Statute of the post-war Court, and it is in that context that it will be examined here.
Under Article 36(2), of the Statute, a State may deposit with the UN Secretary-
General a declaration that it accepts the jurisdiction of the Court for disputes in
respect of a number of matters e~umerated in Article 36 (in effect, all international
legal disputes), 'in relation to any other State accepting the same obligation'. The
intended effect of this was that those States that were ready to accept compulsory
jurisdiction could do so among themselves, while other States would have to rely
on obtaining the consent ad hoc of any State with which they might have a dispute, if
that dispute were to be brought before the Court. There would thus simply be two
classes of 'clients' of the Court, those within the 'optional clause' system and those
outside it. This simple vision became complicated however as a result of the recogni-
tion by Article 36 of the possibility of making reservations to an optional clause
declaration. Specifically, the reservations foreseen were 'a condition of reciprocity on
the part of several or certain States' and acceptance 'for a certain time'. The simplicity
18 Article 36(5) of the Statute of the post-war Court preserves, as between parties to that Statute, any
declarations of acceptance of jurisdiction made under the PCIJ Statute: cf Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v USA), jurisdiction and Admissibility, Judgment, ICJ Reports 1984,
p 392, para 14. (See also n 2 above.)
570 HUGH THIRLWAY
of the system was already compromised by this facility; but the question soon
arose whether any other reservations were effective (eg, the exclusion of disputes of a
specified type, or of disputes arising before or after a specified date). No reservation
was challenged before the Permanent Court as being unauthorized by the Statute, and
the inclusion of reservations became standard State practice. The prevailing view
became that, since a State was free to decide to accept or not to accept the optional
clause jurisdiction in its entirety, it was also free to accept it subject to whatever
reservations it saw fit to make. 19
Furthermore, Article 36(2) of the Statute employed the term 'reciprocity', and
provided for acceptances of jurisdiction 'in relation to any other State accepting the
same obligation'. If a State which had made a reservation to its acceptance brought
proceedings against a State which had made none, was the jurisdiction of the
Court affected by the reservation? The Permanent Court held that it was; that
the respondent State could invoke the applicant State's reservation, or to put it
another way, that the Court's jurisdiction was defined by the narrower of the two
acceptances. 20 Some of the cases concern reservations that must necessarily operate
bilaterally, for example the reservation limiting jurisdiction to disputes arising after a
certain date: if a dispute arises after such date for one party to it, then it must equally
do so for the other.21 A more striking example of the application of this principle is
afforded by the Certain Norwegian Loans case, in which the reservation made by
France, the applicant, excluding disputes within the domestic jurisdiction of France
could be turned against it by Norway, the respondent, so as to exclude a dispute on the
ground that it was within the domestic jurisdiction of Norway. 22
The consequence was that, instead of the simple system of universal compulsory
jurisdiction within a limited group of States, foreseen by the draftsmen of the Statute,
the jurisdiction of the Court under Article 36(2) became a complex network
of bilateral relationships. The fact that two States have each made a declaration of
acceptance no longer signifies that any dispute between them can be brought by either
of them unilaterally before the Court, unless both acceptances are entirely without
reservations. If that is not so, it is necessary to find the lowest common denominator
19 See the statement in the report of Subcommittee IV/liD of the San Francisco Conference that drafted
the Statute of the post-war Court: UNCIO, vol 13, pp 391, 559. The League Assembly had taken the view as
early as 1928 that reservations were not limited to those specifically contemplated in the Statute: see the
resolution of the Assembly quoted in Aerial Incident of 10 August 1999 (Pakistan v India), ICJ Reports 2000,
p 12, para 37.
20 Electricity Company of Sofia and Bulgaria, Judgment, 1939, PCIJ, Ser AlB, No 77, P 64 at p 81; see also
Certain Norwegian Loans, Judgment, ICJ Reports 1957, p 9 at p 24.
21 See, eg, the Orders on provisional measures in the cases concerning the Legality of Use of Force, brought
by Yugoslavia against the member States of NATO: for example, Yugoslavia v Belgium, Provisional Measures,
Order of2 June 1999, ICJ Reports 1999, p 124, paras 22ff.
22 Certain Norwegian Loans, Judgment, ICJ Reports 1957, p 9: the reservation was in fact of the 'Connally'
type (see below). Cf also the Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978, p 3, where a reserva-
tion made by Greece (applicant) excluding matters of the 'territorial integrity' of Greece applied to exclude a
matter concerning the territorial integrity of Turkey (respondent), though this case related, not to Article
36(2) of the Statute, but to the 1928 General Act for the Pacific Settlement ofInternational Disputes.
THE INTERNATIONAL COURT OF JUSTICE 571
of the jurisdiction not excluded by reservations on each side, and consider whether the
particular dispute falls within it.
Another disruptive development, though one that has now more or less passed out
of use, was the invention of the 'self-judging' reservation, designed to retain control
of the extent of the jurisdictional obligation in the hands of the State making the
declaration. In the form pioneered by the United States, and known as the 'Connally
reservation', this was a reservation excluding matters within the domestic jurisdiction
of the reserving State as determined by the reserving State. This reservation apparently
enabled the reserving State to declare, even after the Court had been seised of a
dispute on the basis of the optional clause declaration, that the dispute was a matter
of domestic jurisdiction, and that the Court had therefore no jurisdiction. It was
generally felt that a reservation of this kind was objectionable as being incompatible
with the system of Article 36, and in particular with the principle of the competence de
La competence stated in Article 36(6) (see below), but the Court nevertheless gave
effect to the reservation. However, it has been convincingly argued that to rule that
the reservation was invalid would lead to the consequence that the whole declaration
of acceptance was invalid, so that the reserving State would still be able to escape
the jurisdiction of the Court. 23
There is however nothing illicit about attaching even extensive reservations to
an acceptance of jurisdiction. The Court has had occasion to emphasize the 'funda-
mental distinction between the acceptance by a State of the Court's jurisdiction and
the compatibility of particular acts with internationallaw'.24 The fact that a reserva-
tion to an optional-clause declaration excludes jurisdiction over acts of which the
legality may be doubtful does not render the reservation invalid; the reservation may
have been made specifically because there is doubt about the matter, and this does not
mean that the reserving State is claiming a licence to commit wrongful acts with
impunity. This is another application of the principle that, since a State is free not to
accept the jurisdiction of the Court at all, it must also be free to decide for itself what
limitations it will impose on such acceptance as it does consent to make.
C. JURISDICTION AND ITS EXERCISE
In principle, if the Court finds that it has jurisdiction to entertain a particular case, it
is under a duty to exercise that jurisdiction, to the extent that it has been conferred
and to the extent ofthe claims of the parties before it (the rule ne ultra petita). In a few
23 See Certain Norwegian Loans, Judgment, ICJ Reports 1957, p 9, Separate Opinion of Judge Lauterpacht,
p 34 at pp 56ff. This was on the basis that it would not be proper to 'sever' the reservation from the
acceptance, since to do so would be to impose on the State concerned an obligation that it had dearly not
consented to accept. The European Court of Human Rights, on the basis of a virtually identical provision
in its constituent instrument, has however taken a different view on this point: see Belilos v Switzerland,
Judgment of 29 April 1988, ECtHR, Ser A, No 132 (10 EHRR 418), and Loizidou v Turkey (Preliminary
Objections), Judgment of23 March 1995, ECtHR, Ser A, No 310 (20 EHRR 99).
24 Fisheries Jurisdiction (Spain v Canada), Jurisdiction of the Court, Judgment,. ICJ Reports 1998, p 432,
para 55.
572 HUGH THIRLWAY
cases, the Court has however found that, even before inquiring into the existence of
jurisdiction, it sees reasons for not exercising it. One example of a category of cases of
this kind is where to decide the case would involve deciding the legal situation of a
State not a party to the case (the Monetary Gold principle, examined further in Section
VII below). Another is where any judgment given would be ineffective, because the
legal situation is such that the decision would have no 'forward reach',25 or because
the claims of the applicant have in effect been satisfied, so that the case has become
'without object' or 'moot'. 26 Since a refusal to exercise jurisdiction would normally be
a renunciation of the very function of the Court, these cases are however highly
exceptional.
D. VERIFICATION OF JURISDICTION AND ADMISSIBILITY:
PRELIMINARY OBJECTIONS
A well-established principle of the law relating to international arbitral and judicial
proceedings is that a tribunal (arbitral or judicial) has power to decide, with binding
effect for the parties, any question as to the existence or scope of its jurisdiction. This
principle is known as that of the competence de la competence, the jurisdiCtion to
decide jurisdiction. It is in fact inherent in the concept of consensual jurisdiction: if a
party, having consented to dispute settlement by a third party, were then to claim the
right to determine for itself the extent of the third party's jurisdiction, it would be in
effect withdrawing the consent given.
The principle is stated as applicable to the Court by Article 36( 6) of the Statute: 'In
the event of a dispute as to whether the Court has jurisdiction, the matter shall be
settled by the decision of the Court'. The text makes it clear that if the two parties
agree on the extent of jurisdiction, the Court can and must accept that agreement
(provided the question is one of consensual jurisdiction-see above); and that the
decision of the Court on a jurisdictional question is binding on the parties.27 It should
however be made clear that the matter is not merely one of application of the Statute:
the principle of the competence de la competence is a general one, which would operate
even if Article 36(6) were not included in the Statute.
The Court must exercise this power in any case in which the existence of its
jurisdiction is di~puted. It is not merely debarred from deciding a case in which the
parties have not conferred jurisdiction upon it by consent: it may not even entertain
it, that is to say begin to receive written or oral argument upon it. The existence of a
special agreement will of course guarantee jurisdiction; in the case of an application,
the ground of jurisdiction relied on will normally be indicated (and if it is conceded
25 Northern Cameroons, Judgment, ICJ Reports 1963, pIS at p 37.
26 Nuclear Tests (Australia v France), Judgment, ICJ Reports 1974, p 253, paras 55ff.
27 Note that the matter is 'settled' by a 'decision', and under Article 59 of the Statute the decision has
'binding force' for the parties in respect of that particular case.
THE INTERNATIONAL COURT OF JUSTICE 573
that there is no pre-existing jurisdiction, the case will not proceed, as explained
above). Sometimes the attitude of the respondent State in disputing jurisdiction
is fully justified: the applicant State may be trying to extend a limited acceptance of
jurisdiction by its opponent to cover a dispute of a kind that was never contemplated
in the instrument relied on. Sometimes, on the other hand, the respondent is trying
to evade its obligation to accept settlement of the dispute by the Court because
the ruling, or even any discussion of the matter before the Court, is likely to cause
political embarrassment.
A State named as respondent that considers that the case has been brought without
a jurisdictional title will normally raise this at an early stage, and the usual procedure
is to file a 'preliminary objection', defined by the Rules of Court as 'Any objection
by the respondent to the jurisdiction of the Court or to the admissibility of the
application, or other objection the decision upon which is requested before any
further proceedings on the merits .. .' (Article 79(1». Such an objection is usually
presented in response to the Memorial filed by the applicant (though it may be filed
earlier). Objections to jurisdiction are of course denials that the respondent State
ever gave its consent to the particular dispute being brought before the Court, or that
the particular dispute falls within a category of disputes for which it did accept
jurisdiction. Objections to admissibility are less easy to define: they include the con-
tention that the applicant lacks locus standi (ie, has no legally protected interest), that
local remedies have not been exhausted; that the case is, or has become, 'without
object' or moot; that the presence as a party of a third State is essential to the
proceedings, etc.
In accordance with the principle mentioned above, the effect of a preliminary
objection is that the proceedings on the merits of the case (the actual dispute brought
before the Court) are suspended (Rules, Article 79(3», and will never be resumed
if an objection to jurisdiction is upheld (some objections to admissibility may
be 'curable' and make the continuation of the proceedings possible after certain
steps have been taken). A separate phase of the proceedings is opened to deal with
the objection: the applicant has the opportunity of responding in writing to the
objection, in a pleading entitled 'Observations', and in the subsequent oral pro-
ceedings the respondent speaks first to present its objection, and the applicant replies.
This is the application of a principle of procedural law, in excipiendo reus fit actor
(by submitting an objection the defendant becomes the plaintiff). The Court may
uphold an objection or reject it; but it may also 'declare that the objection does
not possess, in the circumstances of the case, an exclusively preliminary character'
(Article 79(7». This possibility, introduced in the revision of the Rules of 1978,
is still somewhat obscure, but its effect is apparently that the objection is not deter-
mined at the preliminary stage, but may be re-presented and re-argued along with
the merits.
574 HUGH THIRLWAY
VI. OTHER INCIDENTAL PROCEEDINGS
A. REQUESTS FOR THE INDICATION OF PROVISIONAL MEASURES
The power of a tribunal to determine its own jurisdiction is one that belongs to all
national judicial bodies, and its attribution to international judicial and arbitral
organs is not in doubt. More controversial is the question whether the power, also
enjoyed by most, if not all, municipal courts, to issue binding interim injunctions,
that is to say directives requiring or prohibiting certain action pending settlement of
the case before the court, is also a necessary and essential part of the armoury of
international courts and of the International Court of Justice in particular. The
Statute (Article 41) does in fact include a power of the Court to 'indicate, if it
considers that circumstances so require, any provisional measures which ought to be
taken to preserve the respective rights of either party'; the debate is therefore in this
instance not about the existence of some power of this kind, but whether the meas-
ures so indicated create an obligation to respect them, binding on the States
addressed. The wording of the Statute is, to say the least, ambiguous, inasmuch as it
uses such mild terms as 'indicate' and 'measures which ought to be taken' (rather
then 'direct' or 'order', and 'measures which shall be taken'); and the trend of the
travaux preparatoires of the drafting of the PCIJ Statute is rather such as to suggest
that, like universal compulsory jurisdiction, a power of the new Court to indicate
binding measures at a preliminary stage may have been regarded as more than States
were ready to accept. Some scholars have been ready to appeal to the idea that a
power to indicate binding measures is bound up with the power to settle disputes by
binding final decisions, and thus belongs in principle to all international judicial
bodies; from this they conclude that the power conferred by Article 41 must be
interpreted in this sense.
The question remained unsettled until comparatively recently, when in the
LaGrand case, the Court decided that provisional measures addressed to the United
States, which had not been complied with, had created a legal obligation, the
breach of which gave rise to a duty of reparation, independently of the rights and
duties of the parties in respect of the original· dispute. 28 It did not however base
this conclusion on any general principle, analogous to that of the competence de la
competence, but on an interpretation of Article 41 as having been intended to achieve
that result. 29
There is thus no doubt that the Court has incidental jurisdiction under Article 41
to indicate measures; but a question that has given rise to some difficulty is the
28 LaGrand (Germany v United States of America), Merits, Judgment, ICJ Reports 2001, not yet reported,
paras 98ff.
29 In the light of the travaux preparatoires and of the general trend of interpretation of the text in practice,
this view of Article 41 may be regarded as somewhat revolutionary: see the present writer's comments in
(2001) 72 BYIL 37 at 114ff.
THE INTERNATIONAL COURT OF JUSTICE 575
relationship between this incidental jurisdiction and the jurisdiction of the Court
to hear and determine the merits of the case in which measures are requested. The
problem only arises at the international level, because of the principle that inter-
national jurisdiction rests on consent, and consent has therefore to be proved in each
case. If an indication of measures is requested in a case in which the respondent State
has already made it clear that it denies the existence of jurisdiction over the merits,
what is the relevance of this circumstance to the exercise of the power to indicate
measures? At one extreme, it might be argued that if the Court has no jurisdiction to
hear the case at all, then it has no power to indicate measures; at the other extreme, it
might be said that, since Article 41 confers an independent power (and contains no
reference to the question of merits jurisdiction), the Court could indicate measures, if
it saw fit, in a case where it was very doubtful whether it had any jurisdiction over the
merits, or even where it was almost certain that it had none.
The first view has the obvious defect that it tends to rob the provisional measures
procedure of all meaning: if no measures can be indicated until the disputed question
of merits jurisdiction has been thrashed out, then the measures cannot serve to meet
the urgent needs that they were designed for.30 The second view may however be seen
as a threat to the principle of consensual jurisdiction, or even to the sovereign
independence of States, if a State can be subjected to an order indicating measures
that it is to comply with, in a case in which it asserts (justifiably, as it later turns out)
that it has never consented to the Court having any jurisdiction at all. 31
A middle solution has therefore become established in the jurisdiction of the
Court: the possibility or probability of establishing jurisdiction over the merits is one
of the factors to be weighed by the Court when considering whether to indicate
measures. A number of different formulae has been employed to express this relation-
ship. It is however clear that, on the one hand, the Court is not debarred from
indicating measures by the existence of an objection to jurisdiction, even one which
seems prima facie likely to be upheld; and on the other, that it is open to the Court to
decline to indicate measures because there is a 'manifest lack of jurisdiction', or even a
serious doubt as to the existence of merits jurisdiction. In several of the cases brought
by Yugoslavia against members of NATO, the Court found, when examin~ng the
request for provisional measures, that it 'manifestly lack[ ed] jurisdiction' to entertain
the application instituting proceedings; it not only rejected the request for measures,
but decided to remove the case from the list at that stage. 32 The fact that the Court's
eventual finding on jurisdiction contradicts the expectations on which its decision on
provisional measures was founded, will not retrospectively invalidate that decision:
30 This view was nevertheless put forward by dissenting judges in the Nuclear Tests case in 1974, but has
not been heard of since.
31 The difficulty is exacerbated by the ruling in LaGrand that the measures indicated constitute an
independent legal obligation, one which exists-apparently-even in face of a later finding of lack of
jurisdiction.
32 See, eg, Legality of Use of Force (Yugoslavia v United States of America), Provisional Measures Order of
2 June 1999, ICJ Reports 1999, p 916, para 29.
 HUGH THIRLWAY
thus if it considers it justified to indicate measures on the basis of a likelihood of
jurisdiction over the merits, a subsequent finding against jurisdiction will simply
cause the measures to lapse, but they will have been valid until then. 33 If the Court
refuses measures because of doubts as to jurisdiction, a subsequent finding upholding
jurisdiction might justify a renewed request for measures, but the original refusal
would not be undermined.
The purpose of the indication of provisional measures is, as stated in Article 41, 'to
preserve the respective rights of either party'; and this means the rights that are in
issue in the proceedings, and no others. Thus in a case concerning the formal validity
of an arbitral award defining a maritime boundary, the Court declined to indicate
measures directed to the conduct of the parties in the maritime areas concerned, since
the only question before the Court was the validity or otherwise of the award, not the
legal correctness of the boundary indicated. 34
The indication of measures is an interlocutory measure justified by urgency: there
must be a threat to the rights of a party that is immediate in the sense that the final
decision in the case may come too late to preserve those rights. If therefore it is to be
expected that the case will have been decided before irreparable injury is caused,
no measures will be indicated. When Finland complained that the construction by
Denmark of a bridge over a particular seaway would block the passage of ships and
thus prevent Finland from exercising its rights to pass through the seaway, the Court
declined to indicate measures because the timetable for the bridge works was such
that there would be no interference with passage within the time likely to be required
for the Court to decide the case. 35 The Court however included in its order a warning
to the parties (and to Denmark in particular) that a party may not better its legal
position by modifications it has made to the status quo, and that consequently the
Court might, if it upheld Finland's claim, order Denmark to demolish works already
completed that infringed Finland's rights.
B. PARTIES: JOINDER OF CASES; INTERVENTION BY THIRD STATES
Contentious proceedings before the Court are normally brought either by two States
jointly (by Special Agreement), or by one State against another (by application);
in either case there are only two parties to the proceedings. It is however possible for
two or more States to bring proceedings as joint applicants against another State. In
practice, it has been more frequent for two States to bring independent proceedings
against the same respondent; and the Court then has power, if it sees fit, to 'direct that
the proceedings ... be joined' (Rules, Article 47). The cases are then heard and
determined together, by a single judgment; and the Court may 'direct that the written
or oral proceedings ... be in common'. A joinder of this kind was ordered in the two
33 Cf, eg, the Anglo-Iranian Oil Co case, where this situation arose.
34 Arbitral Award of31 July 1989, Provisional Measures, Order of2 March 1990, IC] Reports 1990, p 64.
35 Passage through the Great Belt, Provisional Measures, Order of29 July 1991, IC] Reports 1991, p 12.
THE INTE~NATIONAL COURT OF JUSTICE 577
South West Africa cases (Liberia v South Africa; Ethiopia v South Africa), and in the
two North Sea Continental Shelf cases (brought by two special agreements: Denmark/
Federal Republic of Germany; Netherlands/Federal Republic of Germany). Joinder has
however become less common: it was not ordered in the two Fisheries Jurisdiction
cases (UK v Iceland; FRG v Iceland), the two Nuclear Tests cases (Australia v France;
New Zealand v France), or subsequent cases.
Similarly, it is possible for a State to bring proceedings against two or more States as
joint respondents, though this has never yet occurred. The claim of Nauru against
Australia in the case of Certain Phosphate Lands in Nauru was in fact asserted also
against New Zealand and the United Kingdom, who had constituted, jointly with
Australia, the administering authority under a UN Trustee Agreement for Nauru; but
Nauru did not choose to bring proceedings against all three States, probably because it
was uncertain of being able to establish jurisdiction against the other two. The
absence of the other two States was in fact raised by Australia as an objection to
the admissibility of the claim, but the Court ruled it admissible. 36 In the two cases
concerning the Lockerbie incident,37 and the ten cases brought by Yugoslavia against
the NATO States,38 the contentions against each respondent in each set of cases were
virtually identical, but the applicants nevertheless chose to bring parallel cases, and
the Court has not seen fit to join them.
Where cases are brought in parallel in this way, but no formal joinder is effected,
the Court does, for example, hold hearings in quick succession, deliberate on both
cases, and issue several judgments on the same day; and the judgments are often
identical in much of their reasoning and construction.
The choice of States to be parties is normally therefore in the hands of the State or
States commencing proceedings; but it may happen that another State wishes to
become involved in the case. The Statute provides two possibilities in this respect.
Under Article 63, 'Whenever the construction [ie, interpretation] of a convention to
which States other than those concerned in the case are parties is in question' in a
case, the other parties have to be notified, and may choose to intervene in the pro-
ceedings: if they do so, the interpretation of the convention given by the Court will be
binding upon them. Under Article 62, a State may request the Court to permit it to
intervene in a pending case if it 'consider[s] that it has an interest of a legal nature
which may be affected by the decision in the case'.
One specific type of dispute made intervention particularly attractive to third
States. In a number of cases the Court was asked to rule on the delimitation of seabed
36 Certain Phosphate Lands in NaUTU (Nauru v Australia), Preliminary Objections, Judgment, IC] Reports
1992, p 240, paras 457.
37 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libya v UK, Libya v USA).
38 Legality of Use of Force (Yugoslavia v Belgium, Yugoslavia v Canada, Yugoslavia v France, Yugoslavia v
Germany, Yugoslavia v Italy, Yugoslavia v Netherlands, Yugoslavia v Portuga~ Yugoslavia v Spain, Yugoslavia v
UK, Yugoslavia v USA).
578 HUGH THIRLWAY
areas in a dispute between two States, but in a geographical situation in which the
possible rights or interests of other States might be infringed in some way-even if in
strict law the decision of the Court would be res inter alios acta for those States. These
cases showed that application of Article 62, which had long remained virtually
unused, gives rise to a number of problems. First of all, what sort of interest is
contemplated, and how may it be 'affected' by the decision, given that the judgment is
only binding on the parties? Secondly, must the original parties agree to the interven-
tion, and if not, does an objection on their part affect the matter? Thirdly, does the
State permitted to intervene become a 'party' to the case, and as such bound by the
judgment; or if it is not a party, may it still be bound by the decision? The most
controversial question has however been that of the 'jurisdictional link' .
The problem was illustrated by the attempted intervention of Fiji in the Nuclear
Tests cases. Australia and New Zealand had brought proceedings against France assert-
ing the illegality of atmospheric nuclear tests in the Pacific, and had been able to cite
as bases of jurisdiction the French acceptance under the 'optional clause', and a 1928
Treaty. Fiji sought to join in the proceedings, in effect as co-plaintiff, but could not
point to any jurisdictional title available to it: it was not a party to the 1928 Treaty, and
it could not rely on the optional-clause declaration because it had not deposited one
of its own. Accordingly, Fiji could not validly have brought a separate case against
France; could it therefore be allowed to jump on the bandwagon, as it were, to reach
the same result by taking advantage of the fact that Australia and New Zealand had
brought proceedings? The cases came to a premature end before the Court was called
upon to decide the point, but some of the judges felt strongly enough to indicate their
views upon it in separate or dissenting opinions. 39
After some judicial hesitation, a chamber of the Court ruled, in the case of the
Land, Island and Maritime Boundary Dispute between El Salvador and Honduras, that
no jurisdictional link was required for an intervention which did not confer the status
of party; and that the objection of the original parties was to be taken into account,
but was not decisive. 40 These findings were approved by the full Court in the sub-
sequent cases of Land and Maritime Boundary between Cameroon and Nigeria41
and Sovereignty over Pulau Ligitan and Pulau Sipadan. 42 It appears that intervention as
a party is also possible, either with the consent of the original parties,43 or if there
39 A further complication was introduced by the introduction into the new Rules of Court, adopted in
1978, of a text which was (apparently deliberately) ambiguous on the issue (Article 81(2)(c)).
40 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment,
ICJ Reports 1990, p 92.
41 Land and Maritime Boundary between Cameroon and Nigeria, Application to Intervene, Order of
21 October 1999, IC] Reports 1999, P 1029.
42 Sovereignty of Palau Ligitan and Pulau Sipidan (Indonesia/Malaysia), Application to Intervene, Judgment
of23 October 2001, ICJ Reports 2001, not yet reported, paras 35-36.
43 In the Cameroon v Nigeria case, para 12, the Court took note of the fact that the parties
had no objection to the intervention of Equatorial Guinea, but that State was not seeking to intervene as a
party.
THE INTERNATIONAL COURT OF JUSTICE 579
exists a jurisdictional title such that the intending intervener could have brought
independent proceedings against each of them. If however the intervener is not a
party, the chamber in the EI Salvador/Honduras case held that it is not bound by
the judgment, but similarly cannot invoke it against the original parties. 44 These
decisions have also clarified the significance of the 'legal interest' and how it was to
be 'affected'.
c. INTERPRETATION AND REVISION OF JUDGMENTS
Article 60 of the Court's Statute provides that 'The judgment is final and without
appeal'. The text however continues: 'In the event of dispute as to the meaning or
scope of the judgment, the Court shall construe it upon the request of any party'.
Article 61 further qualifies the finality of a judgment, by providing that:
An application for revision of a judgment may be made only when it is based upon the
discovery of some fact of such a nature as to be a decisive factor, which fact was, when the
judgment was given, unknown to the Court and to the party claiming revision, always
provided that such ignorance was not due to negligence.
Requests for interpretation or for revision were formerly comparatively rare, but
recent years have seen an increase in their frequency.45
VII. EFFECT OF THE DECISIONS OF THE COURT
A judgment of the Court is binding upon the parties to the case in which it is given. As
noted above, under Article 60 of the Statute, the judgment is 'final and without
appeal', and Article 59 provides that 'The decision of the Court has no binding
force except between the parties and in respect of that particular case', implying a
contrario that, between the parties and iIi respect of the particular case, it is binding.
Furthermore, under Article 94(1), of the Charter, 'Each Member of the United
Nations undertakes to comply with the decision of the International Court of Justice
44 The intending intervener (Nicaragua) had in fact announced in advance that it would accept the
judgment as binding, but the chamber did not find this acceptance legally effective.
45 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v Libuan Arab Jamahiriya), IC! Reports 1985,
p 192; Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Mari-
time Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Preliminary Objections (Nigeria v
Cameroon), Judgment, ICJ Reports 1999, p 31; Application for Revision of the Judgment of 11 July 1996 in the
Case concerning Application of the Genocide Convention (Bosnia and Herzegovina v Yugoslavia) (Yugoslavia v
Bosnia and Herzegovina); Application for Revision of the Judgment of 11 September 1992 in the Case con-
cerning the Land, Island and Maritime Frontier Dispute (El Salvador v Honduras: Nicaragua Intervening)
(Honduras/El Salvador).
580 HUGH THIRLWAY
in any case to which it is a party'.46 The only provision for what might be termed
enforcement of a judgment of the Court is Article 94(2):
If any party to a case fails to perform the obligations on it under a judgment rendered by the
Court, the other party may have recourse to the Security Council, which may, if it deems
necessary, make recommendations or decide upon measures to be taken to give effect to the
judgment.
Very little use has been made of this faculty, which does not confer any additional
powers on the Security Council; the political implications of any attempt to enforce a
judgment by this means need not be gone into here.
There is a clear obligation of treaty law to treat a judgment of the Court as binding
and comply with it. In legal theory, however, the judgments of the Court are in
principle declaratory of the rights and obligations of the parties, not creative of new
rights and obligations. If therefore the Court decides, for example, that under a
provision in a treaty, the correct interpretation of which is disputed, one of the parties
is under a particular obligation, that obligation results from the treaty (as authori-
tatively interpreted), but is backed by the obligation to comply with the judgment.
The only special status that the existence of the judgment confers on the original
obligation is confirmation that it exists, in the sense that no alternative interpretation
of the treaty provision is legally possible. The fact that the judgment is binding on
the parties does not mean that they may not, by agreement between themselves,
depart from it-unless of course the obligation found by the Court to exist is one of
jus cogens. All it means is that neither party may unilaterally act as though the legal
situation were other than as declared by the Court.
Some of the relevant texts refer to the 'judgment' of the Court (Statute, Article 60;
Charter, Article 94(2)) and others to the 'decision' of the Court (Statute, Article
59; Charter, Article 94( 1) ). The question has therefore sometimes been raised whether
an Order of the Court is binding on the parties. Most orders are procedural, and any
sanction for compliance is also procedural: if a party fails to file a pleading within the
time-limit fixed by an Order, it may lose the right to file that pleading. A special case
is however that of provisional measures, which are invariably indicated ~n the form
of an Order. Now that the Court has decided (see above) that the measures them-
selves constitute a legal obligation, the formal question of the effect of the order as a
'decision' has perhaps lost much of its pertinence.
46 This commitment does not, as such, apply to parties to the Statute who are not UN members, or to
States admitted to appear without being parties to the Statute. However, when the General Assembly admits a
State, under Article 93 of the Charter, to become a party to the Statute, it always attaches as a condition
'Acceptance of all the obligations of a Member of the United Nations under Article 94 of the Charter' (see GA
Res (91 (1»,11 December 1946 (Switzerland); 3 GA Res 63 (IV), 1 December 1949 (Liechtenstein); GA Res
806 (VIII), 9 December 1953 (San Marino); GA Res 42121, 18 November 1987 (Nauru). Similarly, SC Res 9
(1946), laying down the conditions for access to the Court of States not parties to the Statute (Article 35(2) of
the Statute), includes the condition, inter alia, that such States 'accept all the obligations of a Member of the
United Nations under Article 94 of the Charter'.
THE INTERNATIONAL COURT OF JUSTICE
Article 59 thus excludes any formal impact of the judgment on third parties; and on
this basis the Court has, for example, been willing to draw a boundary line between
two States in an area where a third State might have valid claims, reasoning that the
decision of the Court, like a delimitation agreement between the two States before the
Court, would be res inter alios acta for the third State, and could not therefore preju-
dice its position. 47 Other cases however have given rise to a distinction: if the Court
finds that the rights and obligations of a third State would not merely be affected by
the decision, but would form the very subject matter of the decision, the Court takes
the view that it should decline to exercise its jurisdiction. The classic case on the point
was that of the Monetary Gold Removed from Rome in 1943.48 The parties to the case
were Italy as applicant, and the United Kingdom, France, and the United States as
respondents. The disputed gold had been removed from Rome by the Germans dur-
ing the Second World War, but was subsequently found by an arbitrator to have
belonged to Albania. Italy and the United Kingdom however each claimed that gold,
on the basis oflegal claims by those two States against Albania. The Court found that
in order to determine the validity ofItaly's claim, it would have to 'determine whether
Albania has committed any international wrong against Italy', and thus to 'decide a
dispute between Italy and Albania'. However, Albania was not before the Court as a
party to the proceedings, and had not consented to the dispute being settled by the
Court:
To adjudicate upon the international responsibility of Albania without her consent
would run counter to a well-established principle of international law embodied in the
Court's Statute, namely that the Court can only exercise jurisdiction over a State with
its consent. 49
It was urged that, under Article 59 of the Statute, the decision would not be binding
on Albania; but the Court held that where 'the vital issue to be settled concerns the
international responsibility of a third State, the Court cannot, without the consent of
that third State, give a decision on that issue binding upon any State, either the third
State, or any of the parties before it'. so
The possibility of intervention (see Section VI.B above) has been raised in connec-
tion with the principle laid down in the Monetary Gold line of cases. Ifa State, not a
party to a case, did not wish its rights and duties to be discussed before the Court in its
absence, it was open to such a State, it was said, to intervene. The Court however drew
a distinction: if the interests of the absent State would merely be affected by the
decision, then if that State chose not to exercise its right to request intervention, the
proceedings could continue to judgment; but if the legal interests of the absent State
'would form the very subject-matter of the decision', then the Court could not exer-
cise its jurisdiction in the absence of that State. 51
47 Frontier Dispute, IC] Reports 1986, p 544, paras 46ff.
48 Monetary Gold Removed from Rome in 1943, Judgment, IC] Reports 1954, p 19.
49 Ibid, P 32. 50 Ibid, P 33. 51 Ibid, P 32.
 HUGH THIRLWAY
VIII. ADVISORY PROCEEDINGS
In addition to its function of settling international disputes in accordance with inter-
national law, the Court is empowered by its Statute to give advisory opinions. The
provision to that effect included in the Statute of the Permanent Court was something
of an innovation; some, but by no means all, national· supreme courts possessed a
power of this kind, and on the international level, arbitration proceedings, from
which the concept of an international tribunal sprang, were essentially means of
reaching a binding settlement of a dispute. It was the organs of the League of Nations
that were expected to feel a need for such an opinion, and from the beginning it
was only such international organs, and not States, that were to be entitled to ask for
advice in this form.
The essence of an advisory opinion is that it is advisory, not determinative: it
expresses the view of the Court as to the relevant international legal principles and
rules, but does not oblige any State, nor even the body that asked for the opinion, to
take or refrain from any action. The distinction, clear in theory, is less so in practice: 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
we<;lk position if it seeks to argue that the considered opinion of the Court does not
represent a correct view of the law.
The essentially non-binding character of an advisory opinion has in the past given
rise to some doubts as to the legal effect of a treaty commitment whereby an opinion
of the Court is to be accepted, by the parties to the treaty, as binding. One field
in which treaty provisions of this kind have proved useful is the relations between
international organizations, particularly the United Nations itself, and States. Since
an international organization cannot be a party to proceedings before the Court, a
dispute between an organization and a State cannot be settled by contentious pro-
ceedings. A device that has been used to meet the difficulty is to provide in a con-
vention (for example the 1946 Convention on the Privileges and Immunities of the
United Nations) that, in the event of a dispute of this kind, the General Assembly
will ask the Court for an advisory opinion on the point at issue, and that it is agreed in
advance that the Court's opinion will be accepted as 'decisive' by the State and the
organization. It is now established that since the essentially non-binding character of
the opinion itself is not affected, there is no legal obstacle to the conclusion of an
agreement of this kind.
Under the Charter, Article 96(I), the General Assembly and the Security Council
are entitled to request the Court 'to give an advisory opinion on any legal question'.
This is purely a faculty: nowhere in the Charter is there any obligation to seek the
advice of the Court, and the Court has no power to offer it unasked. A proposal
during the drafting of the Charter to give the Court responsibility for authoritative
interpretations of the Charter was not adopted.
Article 96(2) provides that 'Other organs of the United Nations and specialized
THE INTERNATIONAL COURT OF JUSTICE
agencies, which may at any time be so authorized by the General Assembly, may also
request advisory opinions of the Court on legal questions arising within the scope
of their activities'. Such authorizations have in fact been given to the Economic and
Social Council and to practically all the specialized agencies. The restriction as to the
type of questions to be put was however held to debar the World Health Organization,
which had received a general authorization from the General Assembly to request
opinions, from asking for an opinion on the question whether the use of nuclear
weapons by a State would be a breach of its obligations under international law
'including the· WHO Constitution'. The Court held that under the 'principle of
speciality' the WHO could not deal with matters beyond what was authorized by its
Constitution; that the question of the legality of nuclear weapons was outside that
Constitution; and accordingly the question was not one 'arising within the scope' of
the activities of the Organization. 52 In another case, the question was raised whether
a subsidiary organ of the General Assembly, whose sole function was in fact to ask
for advisory opinions (on the validity of judgments of the United Nations Adminis-
trative Tribunal), had any 'activities' of its own for the purposes of this text; the Court
ruled in the affirmative. 53
The provision in the Statute that corresponds to this Charter text is Article 65,
which provides that 'The Court may give an advisory opinion on any legal question'
at the request of any authorized body. The use of the word 'may' signifies, as the Court
has repeatedly emphasized, that the Court is not bom.1d to give an opinion, but may
decline to do so if it considers that course appropriate. It has never in fact done so, but
has on a number of occasions considered the possibility of refusal. From the resulting
jurisprudence it is clear that the reply of the Court, itself an organ of the United
Nations, 'represents its participation in the activities of the Organization and, in
principle, should not be refused'; and that only compelling reasons would justify
a refusal. 54
A special problem however arises if the question put to the Court is related to an
inter-State dispute, and one of the States concerned in that dispute objects to the
Court giving the opinion. The consent of the States parties to a dispute is the basis of
the Court's jurisdiction in contentious cases; bu~ since the Court's reply to a request
for an advisory opinion has no binding force, 'it follows that no State ... can prevent
the giving of an Advisory Opinion which the United Nations considers to be desirable
in order to obtain enlightenment as to the course of action it should undertake'.55 The
consent of any State party to a dispute underlying a request for advisory opinion is
thus not necessary for the opinion to be given; but, as the Court declared in a later
52 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, IC! Reports 1996,
p 66.
53 Application for Review of Judgement No 158 of the United Nations Administrative Tribunal, Advisory
Opinion, IC! Reports 1973, p 166.
54 See, eg, Western Sahara, Advisory Opinion, IC! Reports 1975, p 12, para 23.
55 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, IC!
Reports 1950, p 65 at p 71.
 HUGH THIRLWAY
case, 'lack of consent might constitute a ground for declining to give the opinion
requested', in the exercise of the Court's discretion, 'if, in the circumstances of a
given case, considerations of judicial propriety should oblige the Court to refuse an
opinion'.56 The Court offered as an instance of this (and probably the most com-
pelling instance), 'when the circumstances disclose that to give a reply would have the
effect of circumventing the principle that a State is not obliged to allow its disputes to
be submitted to judicial settlement without its consent'. 57 In no case up to the present
has the Court declined to give an opinion on this ground, or any other discretionary
ground. It did not even refuse in the case of a dispute between the General Assembly
and a State, in which the Assembly, unable to obtain a binding advisory opinion under
the provisions of the Convention on the Privileges and Immunities of the United
Nations, because of a reservation to that Convention made by the State concerned,
sought and obtained a non-binding opinion of the Court on the point in dispute. 58
A further difficulty that has arisen in connection with requests for advisory opinion
in cases involving, or related to, existing international disputes is the extent to which
a party, or the parties, to such a dispute should be treated as though they were parties
to a contentious case, and in particular should be able to appoint a judge ad hoc.
Article 68 of the Statute provides that:
In the exercise of its advisory functions the Court shall further be guided by the provisions
of the present Statute which apply in contentious cases to the extent to which it recognizes
them to be applicable.
The Permanent Court had recognized that in some cases States should be treated as
'parties' to the extent of appointing judges ad hoc. The Rules of Court make no direct
provision for this, but Article 102(2) repeats the text of Article 68, and adds: 'For this
purpose, it shall above all consider whether the request for the advisory opinion
relates to a legal question actually pending between two or more States'.
Practice has shown that the implementation of these texts in specific cases in
relation to the appointment of judges ad hoc is not always straightforward. In the
Namibia case, South Africa, which had a very special interest in the proceedings, and
could claim that there was a 'legal question actually pending' between itself and nearly
every other State, was not permitted to appoint a judge ad hoc. 59 In the Western Sahara
case, Morocco and Mauritania each claimed the existence of special legal ties with the
territory, and contested the arguments of Spain, the former colonial power: Morocco
was permitted to appoint a judge ad hoc, but Mauritania was not. 60
56 Western Sahara, IC! Reports 1975, p 12, para 32.
57 Ibid, para 33.
58 Applicability of Article VI, Sectio1l 22, of the Convention on the Privileges and Immunities of the United
Nations, Advisory Opinion, ICJ Reports 1989, p 177, para 38.
59 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Order of 29 January 1971, IC! Reports 1971, p 12,
and Advisory Opinion, ibid, p 16, paras 35ff.
60 Western Sahara, Order of22 May 1975, IC! Reports 1975, p 6.
THE INTERNATIONAL COURT OF JUSTICE
IX. THE COURT PAST AND PRESENT:
AN ASSESSMENT
For the first twenty years of its existence, the International Court of Justice seemed
destined to playa part on the international scene similar to that played by its pre-
decessor, the Permanent Court of International Justice. Cases were submitted to it in
a small but regular flow, and a series of requests were made by the General Assembly
for advisory opinions; the decisions and advisory opinions given were on the whole
well received, and the Court's contribution to the development of law, though
necessarily marginal, was significant. While the creators of the Permanent Court, and
their successors at the San Francisco Conference in 1946, might have hoped for a
more spectacular contribution to international dispute settlement, the experiment
begun in 1920 could be regarded as successful.
In the 1960s and 1970s, a marked change was observed. For reasons which need
not be gone into here, but which must include the Court's 1966 decision in the South
West Africa case (which had a devastating effect on the Court's reputation with the
developing countries), doubts began to be expressed about the future of the Court, as
less and less States seemed inclined to bring their disputes before it. For a brief period,
the Court had no cases whatever on its list. Little by little, however, the situation
improved, particularly as a result of the increasing need for impartial settlement of
seabed delimitation disputes, where the Court had shown the way in the North Sea
Continental Shelf case (1969). The formation of a special chamber according to the
wishes of the parties in the Gulf of Maine case (1984) offered an attractive alternative
to submission to the full Court, and it was striking that the next request for such a
chamber came from two developing countries in sub-Saharan Africa (Burkina Faso
and Mali in the Frontier Dispute, 1986).
Today, the Court is busier than it has ever been before. Disputes have been sub-
mitted to it not only by its more established 'clients', but by States of: Latin America;61
Eastern Europe;62 Asia;63 and Africa. 64 It has also seen increasing use of the possibility
61 Military and Paramilitary ActilJities in and against Nicaragua (Nicaragua v USA), Border and Transbor-
der Armed Actions (Nicaragua v Honduras, Nicaragua v Costa Rica), Land, Island and Maritime Frontier
Dispute (Honduras/El Salvador, Nicaragua intervening), Territorial and Maritime Dispute (Nicaragua v
Colombia); Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea; Avena and other
Mexican Nationals (Mexico v USA).
62 GabCikovo-Nagymaros Project (Hungary/Slovakia), Application of the Genocide Convention (Bosnia and
Herzegovina v Yilgoslavia), Legality of Use ofForce (Yugoslavia, against ten NATO countries); Application of the
Genocide Convention (Croatia v Yugoslavia).
63 Aerial Incident of 10 August 1999 (Pakistan v India); Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia).
64 Frontier Dispute (Benin/Niger); Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the
Congo); Armed Activities on the territory of the Congo (Democratic Republic of the Congo v Rwanda); Arrest
Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium); Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v Burundi; v Rwanda; v Uganda).
5 86 HUGH THIRLWAY THE INTERNATIONAL COURT OF JUSTICE

of requesting an advisory opinion, including the request by both WHO and the international disputes are encouraging. While it may not be such a World Court as
~eneral Assembly for an opinion on the legality of nuclear weapons. 65 idealists might like to envisage, in its present structure and operation it remains a
On the practical level, there are signs that the Court is becoming victim of its own real force for peaceful settlement of disputes, and the furthest extension of judicial
success. The principle that all cases are heard by the full Court unless the parties agree power to the affairs of States that is likely to be acceptable to the members of the
to a chamber means that there is a limit to the number of cases that can be heard and present-day international community.
determined each year; and although the Registry has been enlarged and some of the
Court's working methods improved, there are signs of an overload. Judicial settlement
has never been a speedy means of resolving disputes, but it is to be feared that States
considering bringing a case to the Court may be put off by the likely delay before a FURTHER READING
decision is given, due to the presence of so many other cases in the queue.
A consistently high standard has however been maintained in the quality of the ROSENNE, S (1997), The Law and Practice of The International Court of Justice: Questions
Court's decisions, even though they have, as always, been exposed to healthy criticism. the International Court, 1920-1996 (The and Answers about the principal judicial
More cases has meant more opportunities for contribution to the development of Hague: Martinus Nijhoff). This is the most organ of the United Nations, 2000, UN
the law; on a number of occasions, for example, the Court has been able to supple- complete and authoritative survey of the Sales No E.99.1.25. This sets out basic
ment the work of the International Law Commission by settling authoritatively the Court. facts concerning the Court.
customary-law status of a rule embodied in a treaty or other text emanating from International Court of Justice: Yearbook. This The Court's website contains the full texts
the ILC. annual publication contains a wealth of of all recent decisions, press releases,
Considerable use has been made of the possibility of requesting the indication information on current cases and on and other materials, and the pleadings
of provisional measures, inter alia in situations of armed hostilities. It remains to be points of practice and procedure. and oral arguments in current cases
seen, however, whether the ruling in the LaGrand case, that provisional measures give The International Court of Justice (1996), www.icj-cij.org.
rise to a binding obligation of compliance, may not have a negative influence on 4th edn. This useful handbook is pub- The jurisprudence of the Court since 1960
advance acceptance of jurisdiction. The provisional measures procedure has always lished by the Court and distributed has been the subject of detailed comment
offered a temptation to States to commence proceedings on a shaky jurisdictional jointly by the Court and the United in a series of articles in the British Year-
Nations Department of Public book of International Law, vol 60 (1989)
foundation in the hope of getting at least the short-term benefit of an order for
Information. onwards.
provisional measures, and this is all the more attractive if the order is immediately
binding. The only defence against such tactics is to limit generalized acceptances of
jurisdiction that may be misused.
The prospects as regards acceptance of jurisdiction are otherwise mixed: existing
treaties for dispute settlement, compromissory clauses, and optional dispute-
settlement protocols continue to provide a solid background of jurisdiction, but the
modern trend is not to include such clauses automatically in new multilateral treaties.
Nor does the optional clause system seem to be thriving. The number of States having
filed declarations of acceptance is not increasing, and the declarations that have
been filed are much qualified by reservations.
The development of a coherent system of intervention has been valuable, since
many modern international disputes are plurilateral rather than bilateral. The Court
is clearly alive to the need to review its own procedures, as is shown by the recent
revision of Articles 79 and 80 of the Rules, and the use of Practice Directions.
All in all, the prospects for the future role of the Court in the settlement of

65 Opinions differ, however, as to the wisdom of using the advisory opinion procedure in an area
of this kind (see, eg, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, Ie] Reports 1996,
p 226, Dissenting Opinion ofJudge Oda, p 330).
 19
THE USE OF FORCE AND
THE INTERNATIONAL
LEGAL ORDER
Christine Gray

SUMMARY

This is one of the most controversial areas of international law. States are divided as to
the interpretation of the fundamental ru les on the use of force in the UN Charter. The
prohibition of the use of force in Article 2(4) is directed at inter-State conflicts; there
is disagreement as to whether this allows the use of force for humanitarian intervention.
The application of Article 2(4) to civil wars is also problematic. The main exception to the
prohibition on the use of force is the right to self-defence under Article 51. It is contro-
versial whether this is a narrow right, available only in response to an armed attack, or
whether it allows force in protection of nationals abroad or in response to terrorist attacks.
The UN Charter also establishes a collective security system whereby the Security Council
may respond to threats to the peace and acts of aggression. This chapter examines the use
of enforcement action and the institution of UN peacekeeping as well as the power of
regional organizations to assist in peacekeeping and enforcement action.

1. INTRODUCTION

The law on the use of force is one of the most controversial areas of international law
and one where the law may seem ineffective. The UN Charter prohibits the use of
force by States in Article 2(4), but this has not prevented the occurrence of over 100
major conflicts since 1945 and the deaths of over twenty million people. Difficult
questions arise as to how far international law in fact influences State behaviour. In
practice States are clearly ~ous to avoid condemnation for their use of force and
they generally use the language of international law to explain and justify their
behaviour, not as the sole justification but as one of a variety of arguments. Thus
59 0 CHRISTINE GRAY
NATO based its use of force in humanitarian intervention over Kosovo on a mixture
of political, moral, and legal arguments. It is tempting to dismiss legal arguments in
justification of the use of force by States, especially powerful States, as merely self-
interested manipulation of the rules, but in the absence of clear empirical evidence
about the nature of decision-making within States this remains an assumption. It
may underestimate the genuine differences of viewpoint between opposing States
and the commitment of the vast majority of States, especially small, weak States, to the
prohibition on the use of force.
A. THE UN CHARTER SCHEME
The UN Charter is the starting point for any discussion of international law on the use
of force (Sirnma, 2002). It was concluded after, and in response to, the experiences
of the Second World War, in the same way as the League of Nations Covenant was a
response to the First World War. There is disagreement as to whether the prohibition
of the use of force in the UN Charter was a revolutionary new provision or whether
customary law had already developed along the lines of Article 2(4) by the time of the
creation of the United Nations (Brownlie, 1963, p 66). The Charter aims not only to
prohibit the unilateral use of force by States by Article 2(4), but also to centralize
control over the use of force in the Security Council, acting under Chapter VII.
The Preamble of the Charter begins 'We the peoples of the United Nations deter-
mined to save succeeding generations from the scourge of war', and the first purpose
of the UN set out in Article 1 is 'To maintain international peace and security, and
to that end: to take effective collective measures for the prevention and removal of
threats to the peace and for the suppression of acts of aggression or other breaches
of the peace'. The original scheme was that the Security Council should respond to
threats to the peace, breach of the peace, and acts of aggression, if necessary through
its own standing UN army. However, this plan foundered during the Cold War
because the veto possessed by the five permanent members of the Security Council-
the USA, the USSR (now succeeded by Russia), China, France, and the UK-
obstructed effective decision-making by the Security Council (Patil, 1992).
The original Charter scheme has not been implemented; the action taken by the
Security Council under Chapter VII has been different from that originally planned.
-'Coalitions of the willing' have replaced the plan for a standing UN army; member
States have been authorized to use force in major enforcement operations which are
perceived to be beyond the resources of the UN. Also the institution of peacekeeping
which grew up as a partial substitute for Security Council enforcement action during
the Cold War did so without express provision in the Charter.
There is broad agreement between States on the core of the law on the use of force,
as set out in the Charter and also in regional and collective self-defence treaties on the
use of force. However, early divisions between developed and developing States
emerged on the interpretation of the brief provisions of the Charter. The UN General
Assembly adopted resolutions on the use of force to elaborate on the Charter, and
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 591
where these were adopted by consensus they are generally regarded as statements of
customary international law or as authoritative interpretations of the UN Charter.
But often these resolutions are deliberately ambiguous. The consensus in favour
of the Definition of Aggression (GA Resolution 3314), the Declaration on Friendly
Relations (GA Resolution 2625) and the 1987 Declaration on the Non-Use of Force
(GA Resolution 42/22) masks the divisions between States on questions such as the
scope of the right of self-defence. These divisions were apparent in the debates leading
up to the resolutions. The central concerns of developing States have been with
disarmament, nuclear weapons, and economic coercion; in general they have favoured
a stricter interpretation of the prohibition of the use of force than developed States.
Also important in the interpretation and application of the UN Charter rules on
the use', of force are the resolutions of the General Assembly and of the Security
Council: passed in reaction to specific instances of the use of force by States. Of course
these are political bodies, but it is generally accepted that a condemnation of a use
of force is strong evidence of its illegality. In contrast, a failure to condemn may not be
conclusive evidence that the action in question was lawful, given the variety of
motives influencing States. The International Court of Justice has also played a sig-
nificant part in the identification and development of the rules on the use of force in
the Nicaragua case l and the Legality of the Threat or Use of Nuclear Weapons Advisory
Opinion. 2
II. THE PROHIBITION OF THE USE OF FORCE
IN ARTICLE 2(4) UN CHARTER
Article 2(4) is the basic prohibition on the use of force by States. It 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, or in any other
m~~;;inconsistent with the Purposes of the United Nations'. Clearly this is directed
at the inter-State use of force, although as it has turned out civil conflicts have been
more common than traditional inter-State conflicts since the Second World War.
Under Article 2(6) there is a duty on the UN to ensure that even States which are
not UN members act in accordance with these principles so far as may be necessary
for the maintenance of international peace and security. This brief prohibition of the
use of force in Article 2(4) is accepted as representing customary international law
3
and even as ius cogens, as was acknowledged by the ICJ in the Nicaragua case. But its
1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
Merits, Judgment, leJ Reports 1986, p 14.
2 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, Ie] Reports 1996, p 226. .
3 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of Amenca),
Merits, Judgment, leJ Reports 1986, p 14, para 190.
59 2 CHRISTINE GRAY
interpretation has given rise to much debate. General Assembly resolutions give
some limited guidance, but gloss over the more fundamental disagreements.
A. THE USE OF FORCE IN 'INTERNATIONAL RELATIONS'
Article 2(4) prohibits the use of force in 'international relations'; certain States have
therefore tried to argue that they were justified in the use of force to recover what they
claimed to be their own territory. Thus, Argentina invaded the Falkland Islands in
1982 in order to seize them back from the UK whose title to the territory it rejected. 4
Iraq invaded Kuwait in 1990 on the basis that it had pre-colonial title and therefore
was not violating Article 2(4) because the territory belonged to it.s These invasions
were strongly condemned by the international community; the actions of Argentina
and Iraq were inconsistent with the duty under Article 2(3) of the UN Charter
to settle disputes, including territorial and boundary disputes, peacefully. This duty
was further elaborated in the Definition of Aggression and the Declaration on Friendly
Relations. Nevertheless, China does not exclude the right to use force to recover the
island of Taiwan on the basis that this is part of China, while other States have called
for a peaceful settlement of the controversy.
Another problem with the interpretation of 'international relations' has arisen over
the categorization of conflicts: is the situation an inter-State conflict to which Article
2( 4) applies or is it an internal conflict governed by different rules? This issue of
categorization was crucial in the Vietnam and Korean Wars during the Cold War;
Western States argued that these were inter-State wars initiated when an aggressor
Communist State invaded its neighbour and that the international community was
able to respond in collective self-defence or collective action under Chapter VII of
the UN Charter. The socialist bloc position was that Vietnam and Korea were both
unitary States engaged in struggles against colonial intervention. Disagreements as to
whether the conflict was a civil war or an inter-State conflict also arose with regard
to the break-up of the former Yugoslavia. 6
B. THE MEANING OF 'THREAT OR USE OF FORCE'
Developed and developing States are divided on the meaning of 'force'; the former
maintain that this means only armed force, whereas developing States claim that it
covers also economic coercion. However, this division is perhaps more of symbolic
than of practical importance; economic coercion is now expressly prohibited in
General Assembly resolutions, such as the Declaration on Friendly Relations.
4 1982 UNYB 1320.
S 1991 UNYB 189.
6 See Gray, 1996. See also ICTY, Appeals Chamber, Prosecutor v Dusko Tadic, Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction (Interlocutory Appeal), Case No IT-94-1-AR72 (2 October
1995), (1999) 38 ILM 1518.
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 593
Of greater practical importance with regard to ~.!:'pJ!R~~i~~.. of 'fg!c~:~ the
International Court of Justice in the Nicaragua case was calleci" on 'toJ,ccat~gorize
the various actions of the USA aimed at the overthrow of the government of
Nicaragua. It held that not only the laying of mines in Nicaraguan waters and -ft1f1
attacks on Nicaraguan ports and oil installations by US forces but also support
for contras engaged in forcible struggle against the government could constitute
the 'use of force'. The arming and training of the contras involved the use of force
against Nicaragua, but the mere supply of funds did not in itself amount to a use of
force. 7
The prohibition of the 'threat of force' as opposed to the actual 'use of force'
has not proved of great importance in practice. The ICJ in the Nicaragua case
and in the Advisory Opinion on the Legality of Nuclear Weapons was faced with
questions as to the meaning of 'threat of force' but offered little by way of guidance,
limiting itself to the not very surprising conclusion that a threat of force is unlawful
where the actual use of the force threatened would itself be unlawful; the Court
refused to find that the mere possession of nuclear weapons was an unlawful threat
of force.
C. THE USE OF FORCE 'AGAINST THE TERRITORIAL INTEGRITY
AND POLITICAL INDEPEND~NCE OF ANY STATE, OR IN ANY
OTHER MANNER INCONSISTENT WITH THE PURPOSES OF THE
UNITED NATIONS'
The most fundamental debate on the interpretation of Article 2(4) is whether it is
an absolute prohibition on the use of force or whether it should be interpreted
to allow the use of force for aims which are consistent with the purposes of the UN.
Can there be a use of force which does not harm the territorial integrity or political
independence of a State? There have been debates as to whether the use of force to
rescue nationals, to promote democracy, and to further self-determination could be
compatible with Article 2(4). Most recently States have divided as to whether forcible
humanitarian intervention in Kosovo was prohibited by Article 2(4).
During the Cold War some, mostly US, writers argued that Article 2(4) represents
only a limited prohibition; they maintained that it should be interpreted in the con-
text of the whole Charter and thus that the prohibition of force depends on the
functioning of the Charter scheme for collective security under Chapter VII. In the
Cold War the Security Council could not use its powers effectively and therefore
Article 2(4) should be interpreted to allow the use of force to further the principles
and purposes of the UN (Reisman, 1984). Others rejected this approach, arguing
that Article 2(4) should be strictly construed; the non-functioning of the UN
system made it all the more important that States should not use force except in
7 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States ofAmerica), Merits,
Judgment, IeJ Reports 1986, p 14, para 228.
594 CHRISTINE GRAy
self-defence (Schacter, 1984). The debate as to whether Article 2(4) is a wide or a
narrow prohibition on the use of force has outlasted the Cold War.
In practice few States openly relied on a narrow interpretation of Article 2(4) to
justify their use of force during the Cold War. The apparent adoption of the restrictive
argument on Article 2(4) by the UK in the CorfU Channel case was exceptional; the
UK argued that its forcible· intervention in Albanian territorial waters to recover
eVidence (as to which State was responsible for laying naval mines that had led to the
destruction of two British warships) did not violate Article 2(4) because its action did
not threaten the territorial integrity or political independence of Albania. 8 The Court
rejected this claim, but there was some debate as to whether this was merely a limited
rejection of the UK claim on the particular facts or a total rejection of the narrow
interpretation of Article 2(4). The ICJ in the Nicaragua case seems to have taken the
latter view of the ruling. 9 In later incidents the USA and Israel also expressly took a
narrow view of Article 2(4) as not prohibiting the rescue of nationals. This was argued
by Israel to justify its rescue of nationals on a hijacked plane from Entebbe in Uganda
(1976) and by the USA in its more extensive operation in Grenada (1983), but this
was not the sole justification for the use of force and was not taken up by other States.
In these cases other justifications were also offered by the USA and Israel for their use
of force; they did not rely solely on the controversial narrow interpretation of Article
2(4). So express reliance on the argument that Article 2(4) should be interpreted to
allow the use of force if this was consistent with the aims of the UN remained
exceptional.
1. Force in pursuit of self-determination
During the era of decolonization States were divided as to whether force could be
used by peoples in pursuit of the right of self-determination (Wilson, 1988); this
question is no longer of great practical significance. Former colonies and developing
States maintained that Article 2(4) did not prohibit such use of force; Western and
former colonial powers did not accept this and voted against the General Assembly
resolutions which expressly affirmed a right to use force. Those resolutions which
were adopted by consensus, such as the Definition of Aggression and the Friendly
Relations Resolution, were deliberately ambiguous. They spoke of the right of
peoples with the right to self-determination to 'struggle' for that end; by this
developing States understood armed struggle apd the developed States peaceful
struggle. There was agreement, however, that force should not be used against
a people with the right of self-determination. There is little sign that this debate
has great practical significance today, except in the context of the struggle of the
Palestinians for self-determination to end the illegal occupation by Israel of the West
Bank and Gaza Strip.
8 Corfu Channe~ Merits, Judgment, IC] Reports 1949, p 4 at p' 34.
9 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States ofAmerica), Merits,
Judgment, IC] Reports 1986, p 14, para 202.
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 595
2. Force in pursuit of democracy
The claim that pro-democratic force-the use of force to restore a democratic gov-
ernment-is not prohibited by Article 2(4) has been put forward by writers such as
D'Amato (1990), but not by States. It is notable that when the USA invaded Panama
in 1989 it specifically disavowed any legal doctrine of pro-democratic invasion, pre-
ferririg to rely instead on self-defence. When the former President Noriega refused to
stand down after defeat in the election the USA intervened, claiming that it was acting
in self-defence of its nationals in Panama. It distinguished between its political inter-
est in the protection of democracy and its legal justification for intervention. 10
Although the UN may have a power to authorize force to restore democratic govern-
ment in exceptional cases, such as that of Haiti after its first democratically elected
government was overthrown in a coup in 1991, it is not possible to extrapolate from
this a right of unilateral intervention by States.
D. HUMANITARIAN INTERVENTION
The recent NATO action over Kosovo in 1999 led to an extended debate on the
issue as to whether Article 2(4) allowed the use of force for humanitarian inter-
vention and produced a fundamental split between NATO States on the one hand and
China, Russia, and the Non-Aligned Movement on the other.ll Acting in response to
Yugoslavia's repression and displacement of ethnic Albanians in Kosovo, NATO con-
ducted a seventy-eight-day air campaign starting in March 1999. Although NATO did
not offer a fully elaborated legal argument for its air campaign, it seemed to put
forward in justification a mixture of implied authorization by the Security Council
and humanitarian arguments. Member States set out their legal arguments in the
Security Council debates and in their pleadings in the Legality of Use of Force case
brought by Yugoslavia before the International Court ofJustice against NATO States. 12
The UK more than any other State has developed a doctrine of humanitarian
intervention as an autonomous institution. It has argued that the interpretation of
Article 2(4) has changed over time; that international law in this field has developed to
meet new situations. This apparently new doctrine was first put forward with regard
to US and UK action over Iraq. After Iraq invaded Kuwait in 1990 and was driven out
by coalition forces in Operation Desert Storm, the UN Security Council established a
binding cease-fire which W!lS accepted by.Iraq. However, the cease-fire regime in
Resolution 687 failed to make provision for the protection of human rights in Iraq;
Iraq turned on the Kurds of the north and the Shiites and Marsh Arabs of the south.
In response the Security Council passed Resolution 688 (10-3-2) asking Iraq to end
its repression and to allow access to humanitarian agencies. This resolution was not a
10 1989 UNYB 172.
11 1999 UNYB 332,
12 Legality of Use ofForce (Yugoslavia v Belgium), Provisional Measures, Order of2 June 1999, IC] Reports 1999,
p 124.
 CHRISTINE GRAY
binding resolution passed under Chapter VII; it expressly refers to Article 2(7)
UN Charter which provides that nothing in the Charter authorizes UN organs to
intervene in matters which are essentially within the domestic jurisdiction of States; it
did not authorize force. The USA, the UK, and, to a lesser extent, France nevertheless
intervened in Iraq to protect the endangered civilians and subsequently proclaimed
no-fly zones over north and south Iraq. The legal basis for this was not made clear at
first. But the UK subsequently developed the doctrine of humanitarian intervention.
To justify the use of force to protect the no-fly zones over north and south Iraq, the
UK said that 'We believe that humanitarian intervention without the invitation of
the country concerned can be justified in cases of extreme humanitarian need'. In
contrast, the USA and France did not offer humanitarian intervention as the justifica-
tion for their use of force in Iraq. States have gradually polarized over the operations
in the no-fly zones which have continued over the last ten years. France has with-
drawn its initial support; China and Russia do not accept the legality of the no-fly
zones. The controversy over the legality of the US and UK operations to enforce the
no-fly zones mean that it is not surprising that other States did not rely on this as a
precedent for the NATO action in Kosovo (Gray, 2002).
Those who support a doctrine of humanitarian intervention often rely on earlier,
pre-Iraq, practice; they invoke as precedents India's intervention to end repression
and support self-determination in Bangladesh (1971), Tanzania's intervention which
overthrew the regime ofIdi Amin in Uganda (1979), and Vietnam's use of force which
ended the murderous rule of Pol Pot in Cambodia (1978). But in these episodes the
States using force did not actually invoke a doctrine of humanitarian intervention;
they preferred to rely on the better established right to self-defence. Several States said
that violations of human rights could not justify the use of force. Now there is an
attempt to re-write history in order to try to justify the action in Kosovo. This requires
that we ignore what the States in question actually said and therefore seems inconsis-
tent with the approach of the ICJ in the Nicaragua case. The Court in considering
whether a new doctrine of forcible intervention to help opposition forces to over-
throw the government had emerged through State practice put great stress on the fact
that neither the USA itself, nor other States, had claimed such a right. 13
As regards Kosovo there was little express support for an autonomous doctrine
of humanitarian intervention, other than from the UK. However, Belgium in its
arguments to the ICJ did resort to this doctrine on the interpretation of Article 2(4). It
said that the NATO campaign was an action to rescue a population in danger and was
not directed against the territorial integrity or political independence of Yugoslavia.
There was an obligation to intervene to prevent the humanitarian catastrophe
which was occurring and which had been established by the Security Council in its
resolutions, in order to protect those essential human rights which had achieved the
status of ius cogens. Other States such as Germany and France stressed the unique
l3 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States ofAmerica), Merits,
Judgment, IeJ Reports 1986, p 14, paras 206-209.
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 597
nature of the NATO operation and made clear that they did not regard it as a
precedent for future humanitarian intervention. Most States arguing in the Security
Council and in the ICJ did not rely on humanitarian intervention alone as an
autonomous justification for the use of force; they seemed to rely on a combination of
humanitarian and implied authorization by the Security Council. The Netherlands
and others stressed that the action followed directly from Security Council Resolution
1203; it could not be described as unilateral.
Those against the NATO bombing argued that Article 2(4) should be construed
strictly. It was an absolute prohibition of the use of force and it was for the Security
Council under Chapter VII to authorize the use of force; unilateral action by NATO
was illegal. Yugoslavia's pleadings argue that there is no right of humanitarian inter-
vention in international law. The practice of States after the creation of the UN did
not justify any argument that there had been a change in the meaning of Article 2(4).
General Assembly resolutions such as the Definition of Aggression and the Declaration
on Friendly Relations excluded intervention in absolute terms. However, the attempt to
secure a Security Council resolution condemning the NATO action was rejected, an
indication of considerable political sympathy for NATO, if not conclusive as to the
legality of its action.
Therefore, even if a legal doctrine of humanitarian intervention could be said
to have emerged from the NATO action in Kosovo its scope is far from clear (Ches-
terman, 2001). Is humanitarian intervention an autonomous right or does it depend
on a prior determination by the Security Council under Chapter VII? Must it always
be collective action and if so how many States should be involved? Can a bombing
campaign amount to humanitarian action? Yugoslavia argued that even if there is a
right of humanitarian intervention the modalities chosen were inconsistent with
humanitarian aims; a high-level bombing campaign and the wide range of targets
chosen put the population of the whole of Yugoslavia at risk. The UK has written to
the UN Secretary-General pursuing the development of the doctrine and setting
out a framework of principles: when faced with an overwhelming humanitarian
catastrophe which a government has shown it is unwilling or unable to prevent or is
actively promoting, the international community should intervene. Intervention in
internal affairs is a sensitive issue, and so there must be convincing evidence of
extreme humanitarian distress on a largescale, requiring urgent relief; it must be
objectively clear that there is no practical alternative to the use of force to save lives;
any use of force should be proportionate to achieving the humanitarian purpose and
carried out in accordance with international law; the military action must be likely to
achieve its objectives; any use of force must be collective. 14
But many States in many different fora within and outside the UN after the NATO·
campaign made a point of condemning the NATO action in Kosovo as illegal. The
Non-Aligned Movement rejected humanitarian intervention as having no legal basis
in the Charter. The doctrine therefore remains controversial.
14 See (2000) 71 BYIL 644.
 CHRISTINE GRAY
III. INTERVENTION, CIVIL WARS, AND INVITATION
The prohibition of the use of force in the UN Charter is directed at inter-State
conflict, but apart from the many minor border incidents since the Second World War
the most common use of force has been civil war, sometimes purely internal and
sometimes fuelled by outside involvement. The rules against forcible intervention in
civil conflict have been developed by General Assembly resolutions which elaborate
on the Charter provisions on the use of force and complement the prohibitions
of intervention in the constitutions of regional organizations. Thus the Friendly
Relations Declaration (1970) makes clear that every State has the duty to refrain
from organizing, instigating, assisting, or participating in acts of civil strife -in another
State and the duty not to foment incite, or tolerate subversive, terrorist, or armed
activities directed towards the violent overthrow of the regime of another State. There
is a general consensus between States as to the principles to be applied to forcible
intervention in civil conflicts, but their application in particular conflicts has caused
fundamental disagreement (Roth, 1999).
The Nicaragua case set out the general doctrine in this area. 15 Nicaragua brought
this case against the USA not only for unlawful use of for:ce but also for unlawful
intervention against the government through its support for the military and para-
military operations of the contra forces. The Court affirmed that the principle of
non-intervention involves the right of every State to conduct its affairs and to choose
its own form of government without outside interference; it acknowledged that
breaches of this principle were common but nevertheless found that the principle
was customary international law. It held that the USA through (recruiting, training,
arming, equipping, financing, supplying and otherwise encouraging, supporting,
aiding and directing military and paramilitary actions in and against Nicaragua' had
violated international law.
In this case the Court distinguished between assistance to the government of a State
and assistance to an opposition forcibly to overthrow the government. The former is
allowed, the latter is forbidden. If forcible assistance to the opposition were allowed
nothing would remain of the principle of non-intervention. The Court stressed that
States in practice had not claimed such a right to help opposition forces against the
government outside the context of national liberation moyements seeking the right
of self-determination and that in the Nicaragua case the USA itself had not invoked a
right to intervene but had relied on collective self-defence to justify its use of force
against Nicaragua.
During the Cold War States which assisted opposition forces generally did so
covertly; they also tended to challenge the legitimacy of the governments they were
trying to overthrow. Thus when the USA assisted the opposition forces in Angola,
15 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States ofAmerica), Merits,
Judgment, IeJ Reports 1986, p 14, paras 202-209.
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 599
Cambodia, and Afghanistan its use of force was covert and it challenged the legitim-
acy of the government in all these cases. No objective determination of the legitimacy
of governments by the Security Council was possible in the Cold War. Since the end
of the Cold War it is now possible for the Security Council to determine who is the
legitimate government and to distinguish between it and the opposition, for example
in the context of arms embargoes. In the case of the complicated conflict in the
Democratic Republic of Congo (DRC) the Security Council distinguished between
those States lawfully in the DRC at the invitation of the government and those
unlawfully assisting opposition forces.
As for assistance to the government, the law in this area is complex (Doswald
Beck, 1985; Roth, 1999). During the Cold War there was agreement on the principle
that during a civil war any form of outside interference was unlawful, but it is clear
that States manipulated the rules in pursuit of their own interests. Many States
claimed that they were invited by a government; the right to use force to keep a
government in power or to maintain domestic order has been taken for granted
if the level of unrest falls below the threshold of civil war. The Definition of
Aggression acknowledges that a State may invite a foreign army into its territory. Thus
France repeatedly intervened in its former colonies in Africa, ostensibly to maintain
order. Similarly the USA currently denies intervention in a civil war in Colombia,
but maintains that it is merely providing assistance to the government to fight the
drugs trade and terrorism.
If the conflict amounts to a civil war rather than mere internal unrest it is accepted
that there is a duty not to intervene in the absence of UN or regional authorization.
States in this situation have often attempted to justify their intervention by claiming
that it was in response to a prior foreign intervention against the government. The
USSR interventions in Czechoslovakia in 1968 and in Afghanistan in 1979 are
examples of such claims. In both cases the claim that there had been an invitation
was a fiction as the USSR had itself installed the government whose invitation
it claimed to rely on, and in both the interventions was condemned by the General
Assembly.
IV. SELF-DEFENCE
The main exception to the prohibition on the use of force in Article 2(4) is the right
of self-defence. There are deep divisions between States and between writers as to
whether this right of self-defence is a wide or a narrow right (Alexandrov, 1996). The
basic United Nations Charter provision on self-defence is Article 51 which provides:
Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations, until
the Security Council has taken measures necessary to maintain international peace and
600 CHRISTINE GRAY THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 601

security. Measures taken by Members in the exercise of this right of self-defence shall be B. ANTICIPATORY OR PRE-EMPTIVE SELF-DEFENCE
immediately. r~~orted to the Security Council and shall not in any way affect the authority
and res~onslb~ty of the Security Council under the present Charter to take at any time The main controversies over the scope of self-defence are, first, as to the right of
such ~chon as It deems necessary in order to maintain or restore international peace and 'anticipatory' or 'pre-emptive' self-defence; that is, does the right of a State to self-
security. defence arise only after an armed attack has started under Article 51 or is there a wider
right to anticipate the attack and thus to take pre-emptive measures? States such as
As a matter of treaty interpretation, the debate centres on whether Article 51 is
the USA, the UK, and Israel have claimed a wider right, but the doctrine is so contro-
an exhaustive statement of the right to self-defence or whether there is a wider
versial that such claims have been rare. Although the USA has sometimes adopted
customary law right of self-defence going beyond the right to respo~d to an armed
wide Rules of Engagement which allow its own forces to use force in response to
attack. Those supporting a wide right of self-defence argue, first, that the reference
demonstrations of 'hostile intent' by opposing forces rather than requiring them to
to 'inherent right' in Article 51 preserves a customary law right of self-defence and,
wait for an actual armed attack, it has tended to play down any pre-emptive element
second, that such a customary law right is wider than Article 51 and allows self-
in operations such as those by its naval convoys in the Gulf during the 1980.....:88
defence other than against an armed attack (Bowett, 1958; Arend and Beck, 1993).
Iran/Iraq War, and those by its aircraft over the no-fly zones proclaimed in Iraq to
They argue for a right of anticipatory self-defence and of protection of nationals
protect the civilian population after Iraq invaded Kuwait in 1990. Thus, in the case
abroad. Those against a wide view of self-defence argue that this interpretation
of the shooting down of the civilian Iran Airbus by the USS Vincennes in 1988,
deprives Article 51 of any purpose; Article 51 imposes restrictions on the right of self-
an incident which may be taken to show the hazards of anticipatory self-defence,
defence in response to armed attack and so it would be strange at the same time to
the USA argued that it had acted in the context of an ongoing armed attack on its
preserve a wider right of self-defence unlimited by these restrictions. Also, as the right
naval convoy in the Gulf to respond to what it (mistakenly) believed to be imminent
of self-defence is an exception to the prohibition on the use of force, it should be
attack by a hostile Iranian military aircraft. Iran took the case to the ICJ, but it was
narrowly construed (Brownlie, 1963, p 251). Those arguing for a narrow right of self-
settled without the need for the Court to make any authoritative pronouncement on
defence also deny that customary law in 1945 included a wide right of self-defence
anticipatory self-defence.
which was preserved by Article 51. Given this fundamental disagreement on the
The express invocation of anticipatory armed attack by Israel to justify its attack
proper interpretation of the UN Charter, State practice since 1945 is crucial for an
on an Iraqi nuclear reactor in 1981 is therefore unusual. Israel argued that the Iraqi
understanding of the scope of the right of self-defence.
reactor under construction was designed to produce nuclear weapons for use against
Israel and therefore that it was entitled to take pre-emptive action. This attack
A. THE SCOPE OF SELF-DEFENCE: NECESSITY was condemned by both the Security Council and by the General ASsembly, but
AND PROPORTIONALITY the resolutions do not directly address the fundamental doctrinal issue; it is left
open to question whether the condemnation should be taken as a total rejection of
Despite the fundamental disagreement on the scope of the right of self-defence, all
anticipatory self-defence or just a rejection on the particular facts. 18
are agreed that self-defence must be necessary and proportionate. This requirement
Those in favour of a right to anticipatory self-defence argue that it is not realistic
of necessity and proportionality is not explicit in the UN Charter but is part of
to expect States to wait for an attack before responding; those against argue that
customary international law. It is generally taken as limiting self-defence to action
anticipatory self-defence involves a risk of escalation in that the State may mistake
which is necessary to recover territory or repel an attack on a State's forces and which
the intentions of the other or react disproportionately. Insofar as a wide conception
is prop~rtio~ate to this end. These customary law requirements of necessity and
of armed attack based on the capabilities of modern weapons is adopted, the gap
proportIOnalIty were recently reaffirmed in the Nicaragua case 16 and in the Nuclear
between the two positions may shrink.
Weapons Advisory Opinion. 17 The agreement between States that all self-defence should
The controversy over the legality of anticipatory or pre-emptive self-defence was so
be necessary and proportionate makes it possible for them to reject many claims to
strong that no provision on self-defence could be included. in the UN General
self-defence on this simple basis without going into the more controversial doctrinal
Assembly resolutions such as the Definition of Aggression and the Declaration on
debates su~h as the existence of a right to anticipatory self-defence or the right to
Friendly Relations. The ICJ in the Nicaragua case deliberately left the matter
protect natIOnals or self-defence against terrorism.
unresolved. 19

181981 UNYB 275.

16 Ibid, para 194. 19MilitaryandParamilitary Activities in and against Nicaragua (Nicaragua v United States ofAmerica), Merits,
17 Legality of the Threat or Use ofNuclear Weapons, Advisory Opinion, IC! Reports 1996, para 141. Judgment, IC! Reports 1986, p 14, para 194.
602 CHRISTINE GRAY
C. THE MEANING OF 'ARMED ATTACK'
Article 51 specifies that self-defence is permissible in response to an armed attack. The
definition of armed attack is left to customary international law. The most straight-
forward type of armed attack is that by a regular" army of one State against the
territory or against the land, sea, or air forces of another. But armed attack extends
beyond this; it can also cover attacks by armed bands, irregulars, and mercenaries. In
the Nicaragua case the ICJ used the Definition of Aggression paragraph 3(g) to help
interpret the meaning of armed attack in customary international law. It held that
an armed attack must be understood as including 'the sending by or on behalf of a
State of armed bands, groups, irregulars or mercenaries, which carry out acts of
armed force against another State of such gravity as to amount to an actual armed
attack, or its substantial involvement therein.' But the Court did not consider that the
concept of armed attack stretched as far as assistance to rebels in the form of the
provision of weapons or logistical or other support. 20 This conception of armed attack
as covering the acts of armed bands clearly requires a significant degree of govern-
ment involvement. But the 11 September 2001 terrorist attacks on the World Trade
Center and Pentagon have arguably further expanded the notion of armed attack to
cover force by terrorist organizations. 21 The Security Council stopped short of
an express pronouncement that the terrorist attack amounted to an 'armed attack',
preferring to characterize it as a 'threat to the peace'. But the willingness of the
Security Council to affirm the right of self-defence in its Resolutions 1368 and l373
condemning the attack and the invocation of collective self-defence by NATO and the
OAS indicated an apparent lack of concern with any attribution of responsibility
to Mghanistan for the actions of Al-Qaeda terrorists. The UK, however, did stress the
close relationship between the Taliban regime in Mghanistan and Al-Qaeda.
D. THE USE OF FORCE IN PROTECTION OF NATIONALS
Another major controversy as to the scope of self-defence concerns the right of States
to use force to protect their nationals abroad (Ronzitti, 1985). This right has been
asserted by developed States such as the USA, UK, and Israel under Article 51; it has
been exercised in practice by the USA in the Dominican Republic (1965), Grenada
(1983), and Panama (1989), by the UK in Suez (1956) and by Israel in Entebbe (1976).
Developing States are more doubtful about the existence of this right. One of the most
discussed and most controversial examples of the use of force to protect nationals
abroad was by the USA in the small Caribbean island of Grenada. 22 The USA relied on
a series of justifications for sending forces into Grenada in response to a coup which
brought a socialist government to power. One of its arguments was that American
20 Ibid, para 195.
21 For the controversial view that this was already the law, see Dinstein, 2001, p 192.
22 1983 UNYB 211.
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 603
nationals were under threat and that the operation was designed to rescue them. But
there was considerable "doubt as to the existence of the danger, and the use of force was
condemned by the UN General Assembly. In the Security Council the USA vetoed
the resolution condemning its intervention. One of the grounds for doubt about the
legality of the US operation, insofar as it was based on protection of nationals,
was that the use of force went beyond what was necessary and proportionate. All too
often the protection of nationals is a mere pretext to mask the real intent of over-
throwing the government; this was the case in all the episodes listed above, with the
exception of the Entebbe intervention. Even here a majority of States did not accept
the legality of the intervention, though there was sympathy for Israel's position.23
Where the host State consents or acquiesces or where there is no effective govern-
ment, there is not usually a hostile response by other States if the forcible action
is limited to the evacuation of nationals and not a pretext for more far-reaching
intervention.
E. SELF-DEFENCE AGAINST TERRORISM
The attack on the World Trade Center and the Pentagon on 11 September 2001
brought a revolutionary challenge to the doctrine of self-defence and a reassessment
of the law in this area. 24 Before 11 September 2001 the use of force in response to
terrorist attacks on nationals abroad had been controversial; only Israel and the USA
had expressly claimed to exercise such a right. In some cases this was against a State
asserted to be directly responsible for terrorist attacks on US or Israeli nationals. The
USA took action against Libya in 1986 in response to Libyan-sponsored terrorist
attacks on US nationals abroad; it also mounted missile attacks against Iraq in 1993
in response to a failed assassination "attempt against ex-President Bush. In 1998 the
USA went further in its attacks on terrorist training camps in Mghanistan and an
alleged chemical weapons factory in Sudan in response to terrorist attacks on US
embassies in Africa. In 1985 Israel had taken action against headquarters of the PLO
in Tunis, in response to an attack on an Israeli secret service agent in Cyprus; this
was unanimously condemned by the Security Council and not accepted as lawful
self-defence. In contrast, response to the United States actions was ambivalent. Russia
moved from support to doubt; most developed States expressed sympathy but not
clear acceptance of such a wide legal doctrine of self-defence.
In response to the attacks of 11 September 2001 on the World Trade Center a~d the
Pentagon, the USA began Operation Enduring Freedom on 7 October 2001 WIth the
aim of disrupting the use of Mghanistan as a terrorist base. It relied on self-defence as
the basis for its use of force against Mghanistan; in its report to the Security Council
under Article 51 the USA claimed to be acting in self-defence. The UK which was
involved in the first day of missile attacks on Mghanistan also invoked individual and
23 1976 UNYB 315.
24 See account of the facts in (2002) 96 AJIL 237, and editorial comments in (2001) 95 AJIL 833.
604 CHRISTINE GRAY
collective self-defence. These claims may seem controversial in the light of the
previous doubts as to whether the right to self-defence could extend to action against
past terrorist attacks, but Operation Enduring Freedom received massive support and
the action was almost universally accepted as self-defence. Many States have played
a supporting role in the military campaign. Only Iran and Iraq expressly challenged
the legality of the operation. In Resolution 1368 passed on 12 September 2001 to
condemn the attacks the Security Council had expressly recognized the right of self-
defence. Subsequently Resolution 1373 on measures against international terrorism,
passed on 14 November 2001, also included express reference to individual and collect-
ive self-defence. This was the first time that the Security Council had recognized the
right to use force in self-defence against terrorist action.
This use of force goes beyond the traditional model of self-defence in mariy ways. It
seems that the massive State support for the legality of the US claim to self-defence
could constitute instant customary international law and an authoritative re-
interpretation of the UN Charter, however radical the alteration from many States'
prior conception of the right to self-defence. First, it widens the concept of armed
attack. Article 51 originally envisaged self-defence against an attack by a State and
those invoking the right generally took care to attribute responsibility to a State. Now
it is apparently accepted that a terrorist attack on a State's territory by a non-State
actor is an armed attack which justifies a response against the State which harboured
those responsible. NATO invoked Article 5 of the NATO Treaty for the first time; this
provides that an attack on one member State is an attack on all. Other collective self-
defence organizations also took the view that the attack was an armed attack for the
purposes of collective self-defence; the OAS and ANZUS followed the approach of
NATO. The EU, China, Russia, Japan, and Pakistan also supported this view.
The right to self-defence claimed by the USA and the UK in response to the
terrorist attacks is also pre-emptive. Both the USA a:p.d the UK in their letters to
the Security Council say that their action is in response to the attack on the World
Trade Center; for the USA the aim is to deter further attacks on the United States, for
the UK 'to avert the continuing threat of attacks from the same source'. That is,
although the initial attack had ended and thus it would be difficult to invoke self-
defence against that attack, the USA and the UK clearly felt the need to avoid the
appearance of punitive (and unlawful) reprisals. Many States in the past rejected the
legality of pre-emptive self-defence, but they have now accepted this wide right to
self-defence by the USA. However, this may be only in response to terrorism, not a
general acceptance of anticipatory or pre-emptive use of force.
Another possible restriction on this apparently very wide and, for many States, new
doctrine of self-defence is that the right of self-defence against terrorism may exist
only in cases where the right has been asserted by the Security Council, as here in
Resolutions 1368 and 1373. Several States regarded this Security Council backing as
crucial to the US claim to self-defence.
Also questions arise as to necessity and proportionality. The bombing campaign
against Al Qaida and the Taliban regime continued for several months; the USA at the
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 605
start of Operation Enduring Freedom warned that the war against terrorism could
take years. In a campaign to prevent future terrorist attacks it is difficult to identify
an appropriate end to the action, but the longer it continues and the more destruction
it involves the more difficult it is to argue that it is proportionate. If the use of force
proves ineffective in deterring terrorist attacks it is also difficult to argue that it is
necessary.
More problematic, the USA in its letter to the Security Council claimed the right to
use force not only against Mghanistan but also against other countries. It said that
'We may find that our self-defence requires further actions with respect to other
organizations and other States'. The UK did not go so far. The USA subsequently
identified Iran, Iraq, and North Korea as an 'Axis of Evil' and made clear that it would
be prepared to use force against them. It is not clear how far this is to be seen as a
continuation of the war against terrorism or whether it represents a shift to concern
with the development of weapons of mass destruction. Unless these States can be
shown t6 have been involved in the terrorist attacks on the World Trade Center or in
planning future, imminent terrorist attacks, this seems to be stretching pre-emptive
self-defence to an extreme.
F. COLLECTIVE SELF-DEFENCE
The express provision for collective self-defence in Article 51 of the UN Charter is
generally seen as an innovation, included in response to the desire of Latin American
States to retain regional autonomy. The right of collective self-defence formed the
basis for the NATO Treaty and the Warsaw Pact and for many regional treaties after
the Second World War; these treaties provided that an attack on one was an attack on
all and provided for a collective response. As mentioned above, NATO invoked Article
5 for the first time with regard to the attack on the World Trade Center. The USA
conducted the major role in Operation Enduring Freedom against Mghanistan, but it
received some assistance from other States acting in collective self-defence. Opinion is
divided as to whether collective self-defence is a valuable safeguard for small States or
a dangerous doctrine justifying intervention by distant and powerful States in remote
conflicts. It was not often invoked during the Cold War and the few instances where it
was invoked, such as the USA in the Vietnam War (1961-75) and in Nicaragua, and
the USSR interventions in Hungary (1956), Czechoslovakia (1968), and Mghanistan
(1979), were controversial. In all these cases there was dispute as to whether there had
been an armed attack or a genuine request for help from the victim State.
The Nicaragua case played a crucial role in establishing the scope of the right of
collective self-defence. The USA had attempted to justify its use of force against
Nicaragua by relying on collective self-defence, but the ICJ held that the use of
force by the USA did not satisfy any of the criteria for legitimate collective self-
defence. There had been no armed attack by Nicaragua on Costa Rica, El Salvador,
or Honduras, no declaration by any of these States that it was the victim of an armed
attack and no invitation by them to the USA to come to their aid. Finally, the mining
606 CHRISTINE GRAY
of harbours and bombing of ports by the USA was not necessary to repel alleged
attacks by Nicaragua on El Salvador, and was not proportionate. The USA had
not reported its actions to the Security Council under Article 51. This decision
was controversial at the time, but accurately reflects State practice on collective
self-defence.
G. THE ROLE OF THE SECURITY COUNCIL
In theory the Security Council has a central role with regard to individual and
collective self-defence: States must report their use of force in self-defence to the
Security Council immediately and the right of the State to self-defence is temporary
until the Security Council takes the measures necessary to maintain international
peace and security. In practice the Security Council does not generally make pro-
nouncements on the legality of claims to self-defence. Thus in the case of inter-State
conflict between Iran and Iraq (1980-88) and Ethiopia and Eritre.a (1998-2000) the
Security Council did not initially attribute responsibility for the start of the conflict,
and thus did not decide who had the right of self-defence. In contrast when Iraq
invaded Kuwait in 1990 the Security Council did expressly uphold the right of Kuwait
to self-defence.
States have taken care to report their self-defence to the Security Council, especially
since the Nicaragua case where the Court held that the failure by the USA to report
its use of force to the Security Council was an indication that the USA was not itself
convinced that it was acting in self-defence. There has in the past been some contro-
versy as to whether the right to self-defence has been terminated because the Security
Council has taken action and thus has taken 'measures necessary to maintain inter-
national peace and security'. It seems to be generally accepted that it is not enough
for the Security Council simply to pass a resolution or even to impose economic
measures if the aggressor is left in occupation of territory it has seized illegally. This
was the argument of the United Kingdom with regard to the Falkland· Islands (Islas
Malvinas); it claimed the right to use force in self-defence when Argentina seized the
Falklands despite the Security Council resolutions calling for a peaceful resolution.
The UK argued that it retained its right to self-defence until Argentina was driven
out. 25 Unless the Security Council has expressly passed a binding resolution declaring
the right to be terminated, there will be room for doubt on this issue. If a State wishes
to make the position clear it should try to secure an express recognition of its right by
the Security Council. Thus in the Iraq/Kuwait conflict, even when economic measures
were taken by the Security Council, in the same resolution it affirmed the right of self-
defence;26 and in regard to the attack on the World Trade Center the Security Council
expressly referred to the continuing right to self-defenceP
25 1982 UNYB 1320.
26 SC Res 661 (16 August 1990).
27 SC Res 1368 (12 September 2001), 1373 (14 November 2001).
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 607
V. THE USE OF FORCE UNDER CHAPTER VII
UN CHARTER
The original intent behind the UN Charter was that control over the use of force
would lie with the Security Council which would have a standing army at its disposal
to enable it to take enforcement action against aggression in order to restore inter-
national peace and security. This ambitious plan has not been realized and the
original Charter scheme has been modified through practice. Under Article 24 UN
Charter the Security Council has the primary responsibility for the maintenance of
international peace and security, but during the Cold War the veto possessed by the
five permanent members of the Security Council under Article 27 generally blocked
effective action by the Security Council. Chapter VII sets out the framework for its
enforcement powers; under Article 2(7) these powers are not limited by the normal
duty on the UN not to intervene in matters essentially within the domestic juris-
diction of States. Thus Chapter VII gives very wide powers to the Security Council.
The Council in practice does not often make express reference to specific Articles
within Chapter VII; it more commonly makes a reference to Chapter VII in general
terms (Sarooshi, 1999).
Under Article 39 the Security Council is 'to determine the existence of any threat to
the peace, breach of the peace or act of aggression' and then to make recommenda-
tions or decide measures under Articles 41 and 42. The Council has been reluctant to
find an act of aggression under Article 39; rare examples are resolutions condemning
South Africa (under the apartheid regime) and Israel for attacks on neighbouring
States. In response to inter-State conflicts it has preferred merely to find a breach
of the peace, as in the 1980-88 Iran/Iraq conflict and in response to the 1990 Iraqi
invasion of Kuwait, or a threat to the peace.
It has consistently taken ~.wide view of 'threat to the peace' and has been prepared
to identify such a threat a-; arising· out of internal conflicts such as those in the DRC
and Somalia, overthrow of democratic government as in Haiti, and refusal to act
against terrorism in the cases of Libya, Sudan, and the Taliban regime in Afghanistan.
It is not clear whether any other body such as the ICJ would have the power to
challenge a finding under Article 39 by the Security Council. The Court has never
made an authoritative ruling on the matter; it avoided the issue in the Lockerbie 28 and
Bosnia-Herzegovina Genocide cases. 29
Article 40 provides for provisional measures and the Security Council has invoked
this as the basis for its call for cease-fires as, for example, in Resolution 598 (20 July
28 Questions of Interpretation and Application of the 1971 Montreal Convention arising t:0m the Aerial
Incident at Lockerbie (Libyan Arab Jamahirya v United States of America), Preliminary ObjectlOns, Judgment,
ICJ Reports 1998, p 115, . ..
29 Application of the Convention on the Prevention and Punishment of the Crime of GenOCIde, ProvlSlonal
Measures, Order of8 April 1993, IC! Reports 1993, pp 3, 325.
 608 CHRISTINE GRAY
1987) with regard to the 1980-88 Iran/Iraq conflict. This resolution was unusual in
that it made express reference to Articles 39 and 40.
A. MEASURES UNDER ARTICLE 41
Article 41 allows the Security Council to decide on measures not involving the use of
armed force to give effect to its decisions; these include (complete or partial interrup-
tion of economic relations and of rail, sea, air, postal, telegraphic, radio, and other
means of communication, and the severance of diplomatic relations'. Article 41 was
little used in the Cold War: only in the comprehensive trade embargo on the illegal
white minority government in Rhodesia (now Zimbabwe) in a series of resolutions
from 1965 and in the arms embargo on South Africa in 1977. But there has been a
massive increase in the use of Article 41 since then (Gray, 2000, p 154). Indeed there is
now increasing concern about the effects of trade embargoes on (innocent' popula-
tions and the Security Council is attempting to develop (smart' sanctions, targeted on
those responsible for any non-compliance with its decisions. The official position is
that Article 41 measures are not punishment but should be designed to secure com-
pliance with decisions of the Security Council. They have been imposed on States
and also on non-State actors, such as the Bosnian Serbs and UNITA in Angola. In
many civil wars the imposition of an arms embargo is the immediate response of the
Security Council to calls for it to act; thus arms embargoes were imposed in response
to civil war in Yugoslavia, Somalia and Rwanda, and Liberia. Also, for the first time an
arms embargo was imposed on both sides in the inter-State conflict between Ethiopia
and Eritrea.
B. THE USE OF FORCE UNDER CHAPTER VII UN CHARTER
In cases where Article 41 measures would not be sufficient or had proved insufficient
to maintain or restore international peace and security the original Charter scheme
under Articles 42-49 was that the UN would have its own standing army able to
take measures involving armed force. Member States were to make agreements· to
put troops at the disposal of the Security Council which would (take such action
by air, sea or land forces as may be necessary to maintain or restore international
peace and security' under Article 42. But in practice member States did not
conclude agreements to put troops at the disposal of the UN under Article 43 and
no standing army was created. Cold War divisions help to explain this failure to
implement the Charter scheme, but even today States remain unwilling to hand
over control of troops for enforcement action. Because of the failure of States to
conclude agreements under Article 43 there was a doctrinal debate as to whether
the whole Charter scheme was therefore frustrated and Article 42 was inoperative
(Simma, 2002, p 628).
.,;~ However, the Security Council interpreted Chapter VII flexibly to authorize the
. establishment of a UN force in Korea in 1950. Although it did not m~xact
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER
constitutional basis for its actions, it referred to Chapter VII in general terms. When
North Korea invaded South Korea in 1950 the Security Council intervened, although
neither was a member State; it recommended member States to (furnish such
assistance to South Korea as may be necessary to repel the armed attack and to restore
international peace and security in the area'. There was heated debate at the time as
to the legal basis for this action, especially as the Security Council was able to act
only because the USSR had stayed away from the relevant meeting in protest at
the representation of China by the Taiwan government rather than the effective
Communist government. Commen.tators disagreed as to whether this was collective
security under Article 39, 42, or Chapter VII generally or whether it was only
an authorization of collective self-defence. The debate leading to the Security Council
decision sheds no light on this dilemma and it appears to have little practical
significance.
No further forcible action was authorized under Chapter VII until the end of the
Cold War. When Iraq invaded Kuwait in 1990 the Security Council passed Resolution
678 (29 November 1990) authorizing member States to use (all necessary means to
secure the withdrawal of Iraqi troops and to restore international peace and security
in the area'. It is clear from the Security Council d~bates that this phrase (all necessary
means' was intended to cover the use of force. The action against Iraq in Operation
Desert Storm was seen at the time as the beginning of a new era for the Security
Council, the start of a New World Order. In contrast with Korea the force did not
operate under the UN flag, but it did. act under the authorization of the Security
Council, even if the precise constitutional basis was again unclear.
This use of Chapter VII to authorize member States to use force has been
repeated many times in many different situations. It has certainly become clear that
Chapter VII action is not limited to collective self-defence. The Security Council has
not again authorized force against an aggressor State, but it has authorized force in
intenial conflicts, sometimes in response to non-cooperation with UN-brokered
cease-fires; to secure the delivery of humanitarian aid as in Somalia and in Yugoslavia;
to protect safe havens and enforce no-fly zones in Bosnia-Herzegovina; to restore
democracy in Haiti, to protect a refugee camp in Rwanda, as well as to secure the
implementation of economic measures under Article 41. The Security Council
has also authorized massive member State forces to maintain order and engage in
peace-building after the end of conflicts in East Timor, Kosovo, Macedonia, and
Afghanistan.
The UN Secretary-General recognizes that the UN does not itself have the
resources for enforcement action and that it will have to continue to turn to
(coalitions of the willing' but he acknowledges that there is a danger that the UN
may be sidelined. The Security Council has made greater attempts to keep some
control of the member State forces since Operation Desert Storm when it set no time
limit for the operation against Iraq. The mandates authorizing member States to use
force are now for a fixed period and stress the need for impartiality; States are
required to report regularly to the Security Council.
610 CHRISTINE GRAY
C. IMPLIED AUTHORIZATION OF FORCE?
More controversial than the express authorization of member States to use force
under Chapter VII has been the issue of implied authorization (Lobel and Ratner,
1999). States seeking legitimacy for their use of force but unable or unwilling to
obtain a Chapter VII resolution have tried to rely on implied authorization. Thus,
the USA and UK in using force against Iraq in the decade after the cease-fire of
Security Council Resolution 687 have claimed that Iraq's violations of the cease-fire
regime justifies them in using force under Chapter VII. They invoke Security Council
Resolutions 1154 (2 March 1998) and 1205 (5 November 1998) which do not author-
ize force by the normal formula 'all necessary means', but which were passed under
Chapter VII, condemned Iraq for non-cooperation with UN weapons inspectors and
demanded that Iraq should change its behaviour.
The same argument was put forward by several States with regard to Kosovo.
NATO's legal justification for its air campaign against the government of Yugoslavia
was brief, but there were indications that it claimed implied authorization under
Security Council Resolutions 1160 (31 March 1998), 1199 (23 September 1998) and
1203 (24 October 1988). Those impatient with the difficulty of securing agreement
from China and Russia to the use of force even after the end of the Cold War argued
that there was no need for express authorization of the use of force. It was enough that
the resolutions identified a threat to international peace and security under Chapter
VII, made certain demands on Yugoslavia and determined that it had violated inter-
national agreements. This interpretation of the relevant Security Council resolutions
was strongly resisted by Russia and China as a distortion of the words of the resolu-
tions, not justified in the light of the Security Council debates, and a dangerous threat
to the authority of the Security Council.
VI. UN PEACEKEEPING
A. THE INCEPTION OF PEACEKEEPING
UN peacekeeping -is not expressly provided for in the UN Charter; it developed
through practice during the Cold War (Higgins, 1969-81). When the UN Security
Council proved unable to take action in response to breaches of the peace, threats to
the peace, and acts of aggression, because its decision-making was obstructed by the
divisions between the Western and Eastern blocs, peacekeeping was developed as a
partial substitute. The General Assembly initially took on a (controversial) role in
this area under the Uniting for Peace Resolution (1950)30 which allowed it to call
emergency meetings and make recommendations to States on the use of force when
the Security Council was prevented from acting by the lack of unanimity of the
30 GA Res 377 (V), (3 November 1950).
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 611
permanent members. The Certain Expenses Advisory Opinion31 considered the consti-
tutionality of/s__ f(Jrce set up by the General Assembly: could member States be
required to pay the expenses of such operations? The ICJ held that, although the
Security Council had primary responsibility for the maintenance of international
peace and security under Article 24, this was primary and not exclusive; it was open to
the General Assembly to recommend peacekeeping but not to decide o~ enforcement
action which was the exclusive province of the Security Council. And in fact it has
been the Security Council which has subsequently exercised the main responsibility
for peacekeeping. The UN Charter does not make any express provision for peace-
keeping and its precise constitutional basis remains unclear, but discussion now
centres on the nature rather than on the legality of the institution. There was initially
a clear distinction between peacekeeping and Chapter VII enforcement action, but the
peacekeeping label has come to cover a wide range of operations and the distinctions
between peacekeeping and enforcement action have blurred. From 1948-88 fifteen
peacekeeping forces were created (United Nations, 1996). The first major force was
UNEF, established by the General Assembly in the Middle East from 1956-67; the
principles on which this operation was based provided guidelines for future oper-
ations. UNEF was established with the consent of the host State and was terminated
when Egypt withdrew its consent; it was an impartial and neutral force and used force
only in self-defence. Like UNEF, most Cold War peacekeeping operations functioned
between States, and most were limited operations mandated only to monitor cease-
fires or borders. The five permanent members of the Security Council generally did
not take part in peacekeeping forces in order to insulate peacekeeping from Cold War
divisions and States with historic or geographical interests in the conflict were also
excluded.
ONUC was the second major peacekeeping operation and it departed to some extent
from the above guidelines. It operated within the Congo which had descended into
chaos on the withdrawal of the colonial power in 1960. The original mandate of ONUC
was expanded to allow the use of force beyond self-defence; the Security Council used
the language of Chapter VII in authorizing force to prevent the occurrence of civil war
and the secessic:n. of the province of Katanga, but made no express reference to it.
Five of the original peacekeeping forces are still in existence, three in the Middle
East, one in Kashmir, and' one in Cyprus; this reflects the danger that a peacekeeping
force may simply freeze a situation.
B. PEACEKEEPING AFTER THE END OF THE COLD WAR
After the end of the Cold War the Security Council expanded its peacekeeping
functions and there is now a continuing debate about the nature of peacekeeping.
Over thirty new forces have been created, most within States. In his 1992 Agenda for
32
Peace the UN Secretary-General showed an optimistic and expansionist approach.
31 Certain Expenses of the United Nations, Advisory Opinion, IC! Reports 1962, p 151.
32 (1992) 31 ILM953.
612 CHRISTINE GRAY
UN peacekeeping forces played a role in the settlement of Cold War conflicts in
Namibia, Angola and Mozambique, Mghanistan, Cambodia, and Central America.
These forces are sometimes called the second generation of peacekeeping; they were
generally ambitious operations going beyond military and humanitarian operations
to bringing about national reconciliation and re-establishing effective government.
They met with mixed success and faced serious problems of non-cooperation in
Angola and Cambodia.
New conflicts broke out after the Cold War in the Former Yugoslavia, the former
USSR, and in Mrica and more peacekeeping forces were created. The Security Council
took an innovative approach in many ways. The distinction between peacekeeping
and enforcement action was blurred; peacekeeping forces were expected. tOfa~xy
out their functions as the same time as ~ember State enforcement forces; UN pe~ce~-'
keeping was combined with regional peacekeeping for the first time in the former
USSR and in Mrica; the first preventive force was created in Macedonia to prevent the
spread of the conflict in Yugoslavia (it was withdrawn when China vetoed its renewal
in 1997). A third generation of peacekeeping was conceived in 1999 when UNMIK
was established in Kosovo and UNTAET in East Timor. The UN Secretary-General
said that these were qualitatively different from almost any other the UN had ever
undertaken; in each place the UN was the administration responsible for fulfilling all
the functions of a State.
C. THE TRANSFORMATION OF PEACEKEEPING: YUGOSLAVIA
AND SOMALIA 1991-95
The peacekeeping operations in Yugoslavia and Somalia will be considered in some
detail because they constituted a major challenge to the traditional rules governing
peacekeeping. This experiment proved largely unsuccessful and was abandoned in
favour of a retreat to the traditional model, but there have recently been new attempts
to create a workable model for robust peacekeeping.
-¥The traditional principles of peacekeeping were that it is distinct from enforcement
action under Chapter VII of the Charter, and that a peacekeeping force should be
impartial, lightly armed, not use force except in self-defence, and operate with the
consent of the host State. In Yugoslavia this traditional model was modified with
negative results. UNPROFOR was created as a peacekeeping force, first in Croatia and
then in Bosnia-Herzegovina, initially without reference to Chapter VII. But there was
no effective cease-fire and no proper cooperation from the parties and UNPROFOR
was given an ambitious and unrealistic mandate (to create the conditions of peace and
security required for the negotiation of a settlement'. This mandate was incrementally
expanded in a long series of resolutions; the first controversial increase was to give
UNPROFOR the power to use force to secure the delivery of humanitarian aid.
When UNPROFOR met non-cooperation subsequent resolutions were passed under
Chapter VII authorizing UNPROFOR to enforce no-fly zones and to protect safe
havens declared to protect Bosnian Muslims in Bosnia-Herzegovina. This authority to
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 613
use force went beyond self-defence and brought UNPROFOR into conflict with the
Bosnian Serbs. But member States were not willing to provide enough troops to
enable UNPROFOR to carry out its wide mandate. Instead the UN turned to NATO
3-i.:t::.forces to take enforcement action under Chapter VII.
The UN had a similar experience in Somalia. The Security Council was slow to get
involved in the civil war which broke out in 1991. It established a peacekeeping force,.
UNOSOM, to provide security for those delivering humanitarian aid. When this met
non-cooperation on the ground it was supplemented by a US-led member State force.
Both were replaced by UNOSOM II, the first UN peacekeeping operation which
was actually created under Chapter VII. But UNOSOM II was drawn into the conflict
and proved unable to carry out its mandate. In both Yugoslavia and Somalia UN
peacekeeping forces on the ground had to try to operate at the same time as member
State forces authorized to use force under Chapter VII. Such a combination proved
unworkable during ongoing conflict.
The peacekeeping forces subsequently created in Georgia, .Liberia, and Tajikistan
were not established under Chapter VII, and were not given powers under Chapter
VII. This looked like a return to traditional peacekeeping in response to the experi-
ence of Yugoslavia and Somalia. However, the experience in Rwanda brought further
reappraisal of peacekeeping.
D. PEACEKEEPING IN AFRICA
The demands of the major operations in Yugoslavia and Somalia made developed
States reluctant to intervene in Rwanda in 1994 when the Hutu government turned on
the Tutsis and massacred over 500,000 people in three months. A UN force, UNAMIR,
had been established to implement a peace agreement, but this mandate was over-
taken by events and the relatively small number of UN peacekeeping forces were not
authorized or able to prevent the genocide. The Security Council has repeatedly been
accused of double standards with regard to its treatment of Africa; there is concern
about the unwillingness of developed States to provide peacekeeping troops in dif-
ficult situations, especially in Mrica (Berman and Sams, 2000). The call for (robust
peacekeeping' to prevent a recurrence of the failure to prevent the genocide in
Rwanda meets the reluctance of developed States to contribute troops to situations
where there is no peace to keep and no cooperation on the ground in the light of their
experience in Yugoslavia and Somalia. This can be seen also with regard to recent
experience in Sierra Leone and Democratic Republic of Congo (DRC). After a peace
settlement was reached in 1999 to end the civil war in Sierra Leone, a robust
new peacekeeping force, UNAMSIL, was created and was given certain Chapter VII
powers not only to ensure the security and freedom of movement of its personnel,
but also to protect civilians under imminent threat of physical violence. This use of
Chapter VII was clearly in reaction to the experience of Rwanda, but UNAMSIL
encountered great difficulty in securing the authorized number of troops; there
were delays in deployment and the force ran into serious problems until the UK
614 CHRISTINE GRAY
government sent in troops, not to join UNAMSIL, but to prop up the government.
Again in the DRC an enormously complex conflict involving five other African States
broke out in 1998. The Secretary-General made it clear that there was a need for a
large and robust UN force, but the Security Council could only come to agreement
on a relatively small force, and again there were long delays in deployment. The
Security Council would not deploy the force until there was a commitment to a peace
settlement.
E. PEACEKEEPING AFTER THE BRAHIMI REPORT
The Brahimi Report on peacekeeping was presented at the Millennium Summit of the
UN and made proposals for major reform. 33 The most important called for an increase
in resources for the UN Department of Peacekeeping to enable it properly to manage
complex and demanding peacekeeping operations. The report also stressed the need
for the Security Council to provide a clear mandate for peacekeeping forces, and
suggested that no resolution creating a p_eacekeeping force be passed until the Security
Council has commitments from member States for troops. The Report also called for
better cooperation between the Security Council and troop-contributing countries;
this raises difficult issues about control of the force and the balance of power between
the Security Council with its primary responsibility for the maintenance of inter-
national peace and security and those States contributing troops. But the most serious
problem facing UN peacekeeping remains one of resources; if developed States are
unwilling to provide troops and to allow their force to be placed under UN command
in the more complex operations which need better trained and equipped forces, the
UN will be unable to take effective action.
VII. REGIONAL ACTION UNDER CHAPTER VIII
UN CHARTER
The Charter provides for UN action to be supplemented by regional action under
Chapter VIII: 'regional arrangements or agencies' are to deal with such matters
relating to the maintenance of international peace and security as are appropriate
for regional action, provided that their actions are consistent with the purposes and
principles of the UN (Article 52). Any enforcemery: action should be authorized by
the Security Council; the Security Council may choose to utilize regional arrange-
ments for enforcement action (Article 53). The Charter does not define 'regional
arrangements or agencies' but the UN has accepted that the main regional organiza-
tions, the Organization of American States (OAS), the Organization of African Unity
33 (2000) 39 ILM 1432.
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 615
(OAU) (now the African Union), and the Arab League come within this heading.
Other sub-regional organizations not originally set up under Chapter VIII have taken
on peacekeeping powers and have drawn up new constitutional instruments to
regulate this. These include the CSCE (now OSCE), SADC, IGAD, and ECOWAS.
In its resolutions the Security Council has taken a flexible, non-formalistic approach
to the issue of which organizations come within Chapter VIII.
A. A GREATER ROLE FOR REGIONAL ORGANIZATIONS
Since the end of the Cold War regional organizations have become much more active.
The UN Secretary-General expressed the hope in his Agenda for Peace that they could
be used to compensate for the resource problems facing the UN; they should playa
greater role through increased consultation, joint operations, and regional enforce-
ment action authorized under Chapter VII. There has indeed been a significant
increase in cooperation between regional organizations and the UN. UN and regional
forces have combined in Georgia, Tajikistan, Liberia, and Sierra Leone and have
undertaken complementary roles. Also, for the first time regional organizations have
been authorized to use enforcement action under Chapter VII; in Yugoslavia the
Security Council authorized 'member States acting nationally or through regional
agencies or arrangements' to use force to implement economic embargoes imposed
under Article 41. A similar resolution was passed with regard to the enforcement of
economic measures against Haiti after the anti-democratic coup.
Although the Security Council did not expressly refer to Article 53, or specify
exactly which regional organization was envisaged, it seems that these are the first
instances of resort to Article 53. The Security Council has since gone further:
it has authorized States acting through regional arrangements or agencies to use
force to facilitate the delivery of humanitarian aid in Yugoslavia, to ensure
compliance with the ban on flights over Bosnia-Herzegovina, and to protect the
safe havens.
B. CONTROVERSY AS TO THE INTERPRETATION OF CHAPTER VIII
During the Cold War and subsequently, the distinction between regional peace-
keeping action for which no Security Council authorization was necessary and
regional enforcement action which required such authorization has been problematic.
When theOAS intervened against Cuba (1962) and the Dominican Republic (1965)
there was controversy as to whether this was legal under the UN Charter (Akehurst,
1967). The Eastern and Western blocs were divided as to whether economic measures
constituted enforcement action requiring authorization; more recently it seems to
have been implicitly accepted with regard to regional sanctions that Security Council
authorization is not needed for economic measures. The other main question which
arose as to the legality of the OAS actions with regard to Cuba and to the Dominican
Republic was whether acquiescence or failure to condemn by the Security Council
616 CHRISTINE GRAY
amounted to authorization of enforcement action under Article 53. Such claims seem
far-fetched where it is the veto or the threat of a veto by a permanent member which
has led to the failure to condemn.
So long as the use of force by these regional and sub-regional organizations is
limited to peacekeeping with the consent of the host State there is no controversy over
the question of whether or not the operations are consistent with the constituent
treaty of the relevant organization. The crucial question is the compatibility of
their actions with the UN Charter. It is when regional organizations go beyond peace-
keeping and seem to engage in intervention without Security Council authorization
that there is difficulty. During the Cold War there was sometimes suspicion that major
powers were manipulating. regional organizations to further their own ends. Thus,
as well as the concerns about the relation between the USA and the OAS, there was
doubt as to whether the Syrian-dominated Arab League intervention in· Lebanon
(1976-83) was truly impartial peacekeeping in accordance with the purposes and
p~inciples of the UN.
C. THE OECS INTERVENTION IN GRENADA (1983)
The OECS intervention in Grenada provoked lengthy discussion in the Security
Council as to whether the action was legitimate peacekeeping or whether it amounted
to unlawful interference in the domestic affairs of a State in order to overthrow an
unsympathetic government.34 There was a coup in 1983 and a pro-Cuban government
seized power. The USA which was not itself a member of the OECS, led an OECS
intervention and oversaw the installation of a new government. It offered a variety
of legal justifications for its use of force, including an argument that the intervention
was regional action under Chapter VIII at the request of the Governor-General of
Grenada. Many States did not accept that the Governor-General had such power to
represent the State of Grenada, but the main reason for their criticism of the invasion
was that the action went beyond peacekeeping and constituted unlawful intervention.
The UN General Assembly and the OAS condemned the intervention; in the Security
Council the USA vetoed a resolution calling for the withdrawal of foreign troops from
Grenada (Gilmore, 1984).
D. REGIONAL PEACEKEEPING AFTER THE COLD WAR
Questions about the distinction between peacekeeping and enforcement action and
concerns about the impartiality of regional action continue after the Cold War, in
particular with regard to the CIS operations in Georgia and Tajikistan in the former
USSR and also with regard to ECOWAS operations in Liberia and Sierra Leone.
34 1983 UNYB 211.
THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 617
1. ECOWAS action in Liberia (1990-97) and Sierra Leone (1997-2000)
ECOWAS, a sub-regional organization of fifteen member States, established in 1975
and originally concerned with economic matters, took a major role in attempting
to end civil wars in Sierra Leone and Liberia through its ECOMOG force. Commenta-
tors expressed doubts as to whether there were genuinely impartial peacekeeping
forces or whether the major regional power, Nigeria, was pursuing its own agenda
through ECOWAS. ECOWAS was invited into Liberia in 1990 after civil war broke
out, although there was some confusion over the precise nature of the invitation.
ECOMOG forces, dominated by Nigerian troops, initially secured the capital against
the rebels who controlled the rest of the country. When none of the subsequent cease-
fire agreements proved effective eventually ECOMOG took an active role in driving
the rebel forces back from the capital.
After the final peace agreement in 1996 elections were held and the leader of
the rebels was elected as President. Security Council debates reflect an assumption
that the ECOMOG forces were legitimate peacekeeping forces; Security Council
resolutions commended ECOWAS, but did not expressly legitimate the use of force
under Article 53.
In Sierra Leone again ECOWAS seemed to go beyond traditional peacekeeping; it
intervened after a coup in 1997 had overthrown a democratically elected government
and helped to restore that government. Again the Security Council did not seem
concerned about the legality of the ECOWAS action; it assumed that ECOMOG was
a legitimate peacekeeping force, authorized it to use force to implement economic
sanctions against the junta, and provided for cooperation between it and a UN force.
In both conflicts ECOMOG seemed to go beyond limited peacekeeping action, but
ECOWAS did not openly claim wide powers or seek authorization under Article 53
by the Security Council. Its official position was that ECOMOG used force only
in self-defence or, in the case of Sierra Leone, to secure implementation of a UN
economic embargo. The Security Council acquiesced in the ECOMOG action; it
avoided discussion of constitutionality under the ECOWAS constituent instruments
or of legality under the UN Charter, leading some commentators to argue that these
operations marked the inception of a new wide right of regional action to restore
democracy or to undertake humanitarian intervention. However, the Security
Council itself was cautious and did not expressly approve any use of force going
beyond self-defence or in performance of the provisions of peace agreements.
It is difficult to read approval for any radical change in the doctrine of regional
peacekeeping into its resolutions.
 CHRISTINE GRAY THE USE OF FORCE AND THE INTERNATIONAL LEGAL ORDER 619

International Law and the Use of Force
VIII. CONCLUSION Against Iraq', 13 BJIL l.
HIGGINS, R (1969-81), United Nations
The UN Charter provisions on the use of force by States, Article 2(4) on the prohib- Peacekeeping, vols I-IV (Oxford: Oxford
ition of force and Article 51 on self-defence, have produced fundamental divisions University Press).
between States. There is disagreement as to whether the prohibition on force should be LOBEL, J and RATNER, M (1999), 'Bypassing
interpreted strictly or whether it allows humanitarian intervention, as in Kosovo. the Security Council: Ambiguous
There is also disagreement as to whether the right of self-defence is wide or narrow. Authorizations to Use Force, Cease-fires
The response to the 11 September 2001 terrorist attacks has led to a fundamental and the Iraqi Inspection Regime', 93 AJIL
reappraisal of the law in this area. As regards collective security, the original scheme of 124.
the UN Charter for the Security Council to playa primary role in the maintenance PATIL, A (1992), The UN Veto in World
of international peace and security through its own standing army has not been Affairs 1946-1992 (London: Mansell).
fully implemented. Instead the UN has turned to member States to use force under REISMAN, M (1984), 'Coercion and Self-
Security Council authority in 'coalitions of the willing'. Also UN peacekeeping has determination: Construing Charter
developed through practice. UN peacekeeping forces deployed in ongoing con- Article 2(4)', 78 AJIL 642.
flicts face a tension between impartiality and effectiveness. The relationship between RONZITTI, N (1985), Rescuing Nationals
peacekeeping operations and Chapter VII has yet to be satisfactorily resolved. Abroad (Dordrecht: Martinus Nijhoff).
ROTH, B (1999), Governmental Illegitimacy
in International Law (Oxford: Oxford
University Press).
SAROOSHI, D (1999), The United Nations
and the Development of Collective Security
(Oxford: Clarendon Press).
SCHACTER, 0 (1984), 'The Legality of
Pro-democratic Invasion', 78 AJIL 646.
SIMMA, B (ed.), (2002), The Charter of the
United Nations: A Commentary (Oxford:
Oxford University Press).
UNITED NATIONS (1996), The Blue Helmets,
3rd edn (New York, NY: United Nations
Dept. of Public Information).
WILSON,H (1988), International Law and the
Use of Force by National Liberation Move-
ments (Oxford: Oxford University Press).

REFERENCES FURTHER READING

AKEHURST, M (1967), 'Enforcement Action
by Regional Agencies, with Special
Reference to theOAS', 41 BYIL 175.
ALEXANDROV, S (1996), Self-Defense Against
the Use of Force in International Law
(The Hague: Kluwer).
AREND, A and BECK, R (1993), Inter-
national Law and the Use of Force
(London & New York: Routledge).
BERMAN, E and SAMS, K (2000), Peacekeep-
ing in Africa: Capabilities and Culpabilities
(Geneva: United Nations Institute for
Disarmament Research).
BOWETT, D (1958), Self-Defence in Inter-
national Law (Manchester: Manchester
University Press).
BROWNLIE, I (1963), International Law and
the Use of Force by States (Oxford: Oxford
University Press).
CHESTERMAN, S (2001), Just War or Just
Peace: Humanitarian Intervention and
International Law (Oxford: Oxford Uni-
versity Press).
D'AMATO, A (1990), 'The Invasion of Pan-
ama was a Lawful Response to Tyranny',
84 AJIL516.
DINSTEIN, Y (2001), War, Aggression and
Self-defence (Cambridge: Cambridge
University Press).
DOSWALD BECK, L (1985), 'The Legal
Validity of Military Intervention by
Invitation of the Government', 56 BYIL
189.
GILMORE, W (1984), The Grenada Interven-
tion (London: Mansell).
GRAY, C (1996), 'Bosnia and Herzegovina:
Civil War or Inter-State Conflict?', 67
BYIL 155.
- - (2000), International Law and the Use
of Force (Oxford: Oxford University
Press).
- - (2002), 'From Unity to Polarisation:
GENERAL TEXTBOOKS
BROWNLIE, I (1963), International Law and
the Use of Force by States (Oxford: Oxford
University Press) is still valuable for an
historical account of the development of
the law and of doctrinal divisions.
GRAY, C (2000) International Law and the
Use of Force. (Oxford: Oxford University
Press). This is a general book covering the
whole of the use of force, both the uni-
lateral use of force by States and the role
of the UN and regional bodies.
HUMANITARIAN INTERVENTION
CHESTERMAN, S (2000), Just War or Just
Peace? Humanitarian Intervention and
International Law (Oxford: Oxford Uni-
versity Press) is a thorough and measured
account of this emotive subject.
THE INTERPRETATION OF
ARTICLE 2(4)
REISMAN, M (1984), 'Coercion and Self-
determination: Construing Charter
Article 2(4)' and the reply by Schacter, 0
(1984), 'The Legality of Pro-democratic
Invasion', 78 AJIL 642, 646, provide a valu-
able summary of the opposing positions.
INTERVENTION
DOSWALD-BECK, L (1985), 'The Legal
Validity of Military Intervention by
Invitation of the Government', 56 BYIL
189, is an incisive account of intervention
during the Cold War and contains much
of continuing significance.
TANCA, A (1993), Foreign Armed Interven-
tion in Internal Conflict (Dordrecht:
Martinus Nijhoff) is a more up-to-date
account of the controversial practice.
620 CHRISTINE GRAY

SELF DEFENCE GREENWOOD, C (1992), 'New World

Order or Old? The Invasion of Kuwait
GREIG, D (1991), 'Self-defence and the
Security Council: What Does Article 51
and the Rule of Law', 55 MLR 153
examines the debate about Security
PART VII
Require?', 40 ICLQ 366. Council powers under Chapter VII with
RONZITTI, N (1985), Rescuing Nationals regard to the UN authorized action
Abroad (Dordrecht: Martinus Nijhoff)
remains the best work on the protection
against Iraq.
SAROOSHI, D (1999), The United Nations
THE APPLICATION OF
of nationals.
and the Development of Collective Secur-
SCHACTER, 0 (1989), 'Self-defence and the
Rule of Law', 83 AJIL259.
ity (Oxford: Clarendon Press) examines
the Charter framework for the use of
INTERNATIONAL LAW
force.
UN ENFORCEMENT AND
PEACEKEEPING
WEBSITES
UN Blue Books series. These provide detailed
accounts of UN peacekeeping operations UN Department of Peacekeeping:
in particular conflicts. www.un.orglDepts/dpko.
 20
THE LAW OF THE SEA
Malcolm D Evans

SUMMARY

Until relatively recently, the principal division in the law of the sea was between the
territorial seas, which formed a part of the territory of the State but within which other
States enjoyed a number of restricted rights, and the high seas which were open to use by
all. This has now changed, with the recognition and development of new zones of func-
tional and resource-oriented jurisdiction, accompanied by complex realignments of juris-
dictional competences which cut across, and in the eyes of some, threaten to undermine
the traditional principles of governance at sea. This chapter traces these developments. It
also provides an introduction to the basic rules concerning the major maritime zones, as
well as looking at the rules concerning the construction of baselines-foundational to the
entire subject-and to the problem of determining boundaries where claims to zones
overlap.

1. INTRODUCTION

The law of the sea is regulated in a complex yet subtle fashion that increasingly
contrasts with the rather absolutist· notions of sovereignty and jurisdiction which
still retain their potency elsewhere. These concepts are, of course, important in the law
of the sea: indeed, they provide the basis upon which all else is founded. They have,
however, been moulded and melded in the light of a broad range of competing
interests in an extremely sophisticated manner that reflects the changing nature of
interests in the seas.
For example, some of the earliest doctrinal debates concerning the law of the sea
focused on whether the seas could be subject to the exclusive sovereignty of a State.
In the days before ocean exploration and the development of international trade
this was hardly a question at all. "When the question did emerge in the fifteenth and
sixteenth centuries writers who argued that seas should be 'closed' and subject to the
jurisdiction of coastal States did so either for reasons of security (to keep threatening

-- ---~- ---- ------

62 4 MALCOLM D EVANS
forces at a distance) or reasons of trade (to operate profitable customs regimes and
control navigation). The balance that finally emerged reflected both concerns: States
were to enjoy a full sovereignty over those waters proximate to their coasts, whereas in
those waters beyond, where trade and navigation issues assumed a greater significance
than issues of security and control, the principle of the freedom of the seas-famously
argued for by Grotius in his work Marem Liberum-prevailed (Anand, 1993;
O'Connell, 1982, pp 18-30).
This, then, established the basic division that dominated the law of the sea for some
350 years; between the territorial sea which was subject to the jurisdiction and control
of the coastal State and the high seas beyond which were open to all. However during
the twentieth century, new issues emerged as technological developments resulted
in changing strategic interests and increased demand for, and capacity to access and
harvest, the resources of the sea. These challenges were rendered more complex by
the rapid expansion of the international community, shifts in the political balance of
power and the increasing awareness of the need not only to access and exploit but also
to conserve and protect the resources of the seas and the marine environment.
The early years of the twentieth century saw moves to 'codify' much of inter-
national law in written form. Although this ambitious project made little headway,
it did result in the 'Hague Codification Conference' of 1930 which, although not
producing any text itself, provided useful experience which was built on after the
Second World War when the ILC decided to examine the subject. In 1956 the ILC
produced a set of draft Articles which were subsequently considered at the First
United Nations Law of the Sea Conference held in Geneva in 1958. This con-
ference produced four 'Geneva Conventions' on the Law of the Seal which in part
reflected customary international law but also contained much that was 'progressive
development' .
These conventions left some key issues open, in particular the vexed question of the
breadth of the territorial sea, and in 1960 a second UN Conference was convened in
Geneva but this ended without agreement. In the meanwhile, pressure was mounting
for a more fundamental review of the law of the sea, that would take account of the
growing demands for access to resources and break down the territorial sea/high
seas dichotomy. Admittedly, the 1958 conventions themselves represented a limited
break with this. Two of those conventions reflected the traditional divisions, dealing
with the territorial sea (and contiguous zone) and with the high seas. The others
reflected new concerns, the continental shelf and fisheries conservation and manage-
ment. Although the fisheries convention did not gain much international support,
and elements of the continental shelf convention has since been jettisoned, adopting
'general' conventions on these functional issues suggested that the future did not lie in
shifting the boundaries and redefining the concepts of the territorial sea and high
I These being the Convention on the Territorial Sea and Contiguous Zone (TSC); Convention on the High
Seas (HSC); Convention on the Continental Shelf (CSC); and the Convention on Fisheries and Conservation
of the Living Resources of the High Seas (CFC).
THE LAW OF THE SEA
seas, but in carving out and recognizing new zones and forms of jurisdictional com-
petence that co-existed alongside them. UNCLOS II had attempted to develop this
route, suggesting that States be permitted to exercise exclusive jurisdiction over fishing
in a belt outside of their territorial sea rather than extend the territorial sea as far
seawards as some would have liked. Moreover, this general approach found endorse-
ment in the North Sea 2 and Fisheries Jurisdiction 3 cases, where the emergence of other
forms of jurisdictional zones and competences was acknowledged by the ICJ.
However, an even more fundamental challenge was also being made to the ordering
of the oceans. The entire idea underlying the division of the seas into territorial seas
and high seas was that it marked off the area in which jurisdiction and control was
exercised by a single State from the area in which no single State exercised jurisdiction
or control and in which activities were 'free' from the control of all except the State
whose nationality a person or vessel on the high seas carried. In practice, therefore, the
resources of the high seas were available for unilateral exploitation. In 1967, however,
the Maltese ambassador to the UN, Arvid Pardo, made the claim that the resources
of the seabed beyond national jurisdiction should be considered to be the 'Common
Heritage of Mankind' and be exploited for the benefit of the international community
as a whole (Schmidt, 1989, pp 18-30).
This complex web of unresolved issues and emerging agendas came before the
Third UN Conference on the Law of the Sea (UNCLOS III) which met from 1974-
82 and culminated in the adoption of the 1982 Convention on the Law of the Sea
(LOSC). Negotiations at UNCLOS III were tortuous and the convention attempted to
balance a myriad of competing interests in a 'package deal' that ultimately satisfied
few. However, by the early 1990s the number of ratifications approached the sixty
required for the convention to enter into force but there was almost no support from
developed States whose acceptance was critical to the success of the convention. This
focused the minds of all concerned and, assisted by changes in the world political
order at that time, a rather euphemistically entitled 'Implementation Agreement'
was agreed which de facto amended provisions of the convention dealing with deep
seabed mining so as to make them acceptable to as broad a range of States as possible
(Anderson, 1993; 1995) The convention entered into force on 16 November 1994
and at the time of writing is in force for 138 States. Much of the convention reflects
customary law and so is relevant to those increasingly few States who are not bound
by it as a matter of treaty law. The 1982 Convention therefore provides the starting
point for any presentation of the contemporary law of the sea. However, parts of the
convention are of a 'framework' nature, foreseeing the need for further instruments
addressing a number of subjects in greater detail, and it has indeed already been
supplemented by a number of other major conventions. Finally, customary law con-
tinues to play an important role in supplementing and amplifying its provisions.
Since a chapter of this length cannot be comprehensive, it aims to give a flavour of
2 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3.
3 Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, p 3.
 MALCOLM D EVANS THE LAW OF THE SEA

the convention's approach and illustrate the manner in which competing interests are linking the outermost points of the 'skaergaard', or fringe of rocks and islands that lay
accommodated in some key areas. off the Norwegian coast. The Court noted the inconvenience of using the low water
mark as the baseline in such geographically complicated circumstances and accepted
the legitimacy of drawing 'straight baselines' under certain circumstances. The judg-
ment was reflected in TSC Article 4, the essence of which was repeated in LOSC
II. CONSTRUCTING BASELINES
Article 7 (Reismann and Westerman, 1992).
Straight baselines may only be drawn when the coastline is 'deeply indented and
A. INTRODUCTION: THE NORMAL RULE cut into' or 'if there is a fringe of islands along the coast in its immediate vicinity'
(LOSe Article 7(1». Where these criteria are not met, the normal rule applies. Even if
~nt~r~at~onallaw parcels the sea into various zones in which States enjoy a variety of
straight baselines may be drawn, there are limitations upon how they are to be drawn.
JunsdICtlOnal competences. The general rule is that coastal States exercise the greatest
These include restrictions on the use of Low Tide Elevations and, more generally,
degree of jurisdictional competence over those zones that lie closest to them. Logically
that straight baselines 'must not depart to any appreciable extent from the general
enough, a State exercises full powers of territorial sovereignty within areas of water
direction of the coast' and that 'the sea areas lying within the lines must be sufficiently
which are 'internal'. This obviously includes lakes and rivers but also includes harbours
closely linked to the land domain to be subject to the regime of internal waters' (LOSC
and other areas of water which are landward of 'baselines' from which the various
Article 7(4». This rather impressionistic requirement is particularly important.
zones of seawards jurisdiction are generally 4 measured. Determining baselines is,
Waters landward of straight baselines are by definition internal waters over which the
then, of central importance and a number of detailed rules were set out in the 1958
State enjoys full territorial jurisdiction and control (with an exception to be con-
TSC and largely repeated in the 1982 LOSe. Most are considered to reflect customary
sidered below) and straight baselines must not be used to bring into the territorial
law. It should be remembered that the further seawards a coastal State is able to 'push'
domain waters which lack an intrinsic nexus with the coast. That nexus might be
its ~aselines, the further seawards its jurisdiction will extend and so the detailed appli-
established by non-geographic criteria: following the Anglo-Norwegian Fisheries case,
cation of these rules often gives rise to controversy. It should also be remembered that
LOSC Article 7(5) permits local and well-established economic interests to be taken
islands also generate maritime zones, although under LOSC Article 121(3) there is the
into account when establishing particular baselines, but only where the threshold
important exception that 'Rocks which cannot sustain human habitation or economic
criteria set out in Article 7(1) are met.
life of their own shall have no exclusive economic zone or continental shelf'. The
scope of this provision is uncertain, with neither 'rock' nor 'economic life' expressly
~efined .(Charney, 2000). It is doubtful whether this provision reflects customary C. BAYS
mternatlOnallaw, though it obviously is binding on States party to the convention.
A further exception to the 'normal' rule concerns bays and is addressed by LOSC
Whether island or mainland territory, ' ... the normal baseline for measuring the
Article 10, which is generally considered to reflect customary law (Westerman, 1987).
breadth of the territorial sea is the low-water line along the toast as shown by the
The motivation for departing from the normal rule here is not so much based on
appropriate symbols on charts officially recognized by the coastal state' (LOSC Article
convenience but is to avoid situations in which the territorial sea -or even fingers of
5). Although relatively easy to apply, this method can produce unwieldy results when
high seas-penetrate the mouths of bays and intrude into areas intrinsically con-
the coastline is not comparatively straight andlor there are a considerable number of
nected with the land domain. The problem was greatest where entrances to bays were
islands in the vicinity of the mainland coast. Therefore, a number of rules have been
relatively narrow but opened out into broader expanses of water. The aim is to
devised which address some exceptional situations. States do not have to adopt one
differentiate areas of water which are essentially of an 'internal' nature from those
method of drawing baselines but may use those methods most appropriate for each
which are not by means of 'closing lines' drawn across the mouth of the bay from
portion of their coast (LOSC Article 14).
which the territorial sea and other zones of jurisdiction are measured. 6
Once again, there are two stages. First, the distance between the 'natural entrance
B. STRAIGHT BASELINES points' of a bay is measured and a semi-circle is drawn along a line of that length.
The area of this semi-circle is then compared to the area of water found landward
In the Anglo-Norwegian Fisheries 5 case the UK challenged the right of Norway to claim
of the closing line. If the area of the semi-circle is less than that of the area of water,
a territorial sea drawn not from the low water line but from a series of artificial lines

4 The continental shelf is, in part, an exception to this. See below. 6 It is important to remember that a bay closing line and a straight baseline are legally speaking two very
5 Fisheries, Judgment, IeJ Reports 1951, p 116. different types ofline, though both have the same general function.
 MALCOLM D EVANS
the indentation is a bay; if it is greater than the area of the water, the indentation
is not-for legal purposes-a bay. The second stage is to draw the closing line. If the
distance between the entrance points is less than twenty-four miles, it may be drawn
between them. If it exceeds that distance, then a closing line of up to twenty-four
miles can be drawn 'within the bay in such a manner as to enclose the maximum area
of water that is possible with a line of that length' (LOSC Article 10(6)). This seem-
ingly simple test is complex to apply, with the identification of the natural entry
points being a particular problem. 7
Bays the coastline of which belong to more than one State pose particular problems
as the exceptional rule in Article 10 only applies to bays the coasts of which belong
to a single State. However, in the Land, Island and Maritime Frontier Dispute the ICJ
identified the concept of a 'pluri-State' bay, where the coasts belong to a number
of States yet a closing line might still be drawn. 8 Whilst this might be appropriate
where, as in that case, a particular history justifies it, it is difficult to see how this could
be used more generally, if only because the waters behind the closing line would be
'internal' to all of the States concerned and would simply generate a further need
to differentiate between them. It seems to create more problems than it solves and
does not seem to be found in State practice. In any case, the convention regime is
inapplicable to 'historic bays', these being indentations claimed by the coastal State as
a part of its internal waters on the basis of a long-standing claim, assertion of juris-
diction, and acquiescence by others (O'Connell, 1982, ch 11). This offers an alternative
route for States wishing to make claims in respect of indentations which cannot fulfil
the criteria set out in the convention. However, such claims are difficult to substantiate
and will often meet with considerable protest, as is the case with the Libyan claim to
the Gulf of Sirte, a 'bay' nearly 300 miles in extent (Ahnish, 1993, ch 7).
D. ARCHIPELAGOES
The' 1951 Anglo-Norwegian Fisheries case addresses what might be cClJIed 'coastal
archipelagoes'. But what of States comprised wholly or partly of groups of islands?
Should the waters be enclosed and treated as internal? What of the navigational
rights of third States? At UNCLOS III the interests of archipelagic States, such as
Indonesia and the Philippines, and the concerns of adjacent maritime neighbours,
such as Australia, combined to produce a particular regime applicable to 'archipelagic
states'. These are defined as a State 'constituted wholly by one or more archipelagoes'
and other islands, where an archipelago is itself defined as a group of islands, or parts
of islands, and their interconnecting waters which are so closely interconnected as
to form, or be regarded as forming, an intrinsic entity. Therefore Indonesia, the
7 See, for example, Post Office v Estuary Radio [1968] 2 QB 740. See also Marston, 2002.
8 Land, Island and Maritime Frontier Dispute (EI Salvador/Honduras: Nicaragua) Judgment of 11 September
1992, ICJ Reports 1992, p 351, para 395. The entire concept was roundly criticized by Judge Oda in his
Dissenting Opinion, ibid, p 732, paras 1-26.
THE LAW OF THE SEA
Philippines, Fiji, Japan, and the UK are archipelagic States for convention purposes
and are therefore entitled to draw archipelagic baselines, whereas island groups such
as the Azores (belonging to Spain) and the Galapagos (belonging to Equador) are not.
However, not all archipelagic States are able to construct archipelagic baselines
since these must conform to strict criteria, the principal elements of which are that
they must link the main islands of the group; no baseline may be more than 100 miles
long, except that 3% of the total may be up to 125 miles in length; they must follow
the general configuration of the island grouping; and, most importantly, fulfil
the requirement that the ratio of water to land within the baselines must be not less
than 1:1 and not more than 9:1 (LOSC Article 47). The result is that both those
archipelagic States which primarily consist of a few large islands (such as Japan and
the UK) and those which are composed of very small and widely spaced islands
(such as Kiribati)-are unable to draw such baselines. It is the latter category
that stood to gain most from the concept but they were unable to influence the
negotiations in their favour and the details of the regime favour the interests of
the larger archipelagic States.
The waters within archipelagic baselines are 'archipelagic waters' rather than
internal waters and are subject to special rules concerning, inter alia, fishing and
navigation which will be considered later (LOSC Articles 49-53). Once again, the
convention sought to forge a new approach to the division of jurisdictional
competences, departing from the absolutist concepts previously employed.
III. THE INTERNAL WATERS, TERRITORIAL SEA,
AND CONTIGUOUS ZONE
A. INTRODUCTION
The idea that States are entitled to exercise authority over the waters beyond their
land territory (and internal and archipelagic waters) is deeply entrenched in inter-
national legal thinking. Although it was once argued that the competences States
enjoyed within waters off their coasts fell short of territorial sovereignty and had to be
positively asserted,9 it is now clear that this flows automatically from sovereignty
exercised over land territory, so all coastal States do have a territorial sea. 10 However,
practically speaking, States need to make some form of pronouncement, if only to
determine its extent.
The breadth of water over which a State might legitimately exercise sovereign
9 This view found reflection-somewhat unexpectedly-in R v Keyn (1876) 2 Ex D 63, the substance
of which was subsequently reversed by the 1878 Territorial Waters Jurisdiction Act.
10 A view expressed by Judge McNair in his Dissenting Opinion in Fisheries, Judgment, ICJ Reports 1951,
p 116 at p 160.
 MALCOLM D EVANS
jurisdiction has been the subject of lengthy debate down the ages, but at the dawn
of the twentieth century the preponderance of known practice fixed that distance at
three miles. The conflict between those who favoured the broadening of this zone,
in order to enhance coastal security or resource access, and those who opposed this
in the name of the freedom of navigation (and of fishing on the high seas) not only
underpinned the development of the functional maritime zones but was also respon-
sible for the failure ofUNCLOS I and II to resolve this issue. By the time ofUNCLOS
III, however, it seemed clear that an expansion of territorial seas to twelve miles was
inevitable and the only question was the price that its opponents could extract from
its proponents. LOSC Article 3 recognizes the right to establish a territorial sea of
up to twelve miles and the overwhelming majority of States-over l30-now do so.
Although described as the territorial sea, the sovereignty of the State extends to the
airspace above and the seabed and subsoil beneath (LOSC Article 2(2)).
It is important that States make their position clear since possession of a territorial
sea not only entails rights but also duties: in his Separate Opinion in the Fisheries
Jurisdiction case Judge Fitzmaurice. pointed out that coastal states were obliged to
maintain navigational aids within their territorial seali and could be held responsible
for damage flowing from the failure to do so. Clearly, the extent of this obligation
depends on the extent of the territorial sea.
B. JURISDICTION OF THE COASTAL STATE
Although the coastal State exercises 'sovereignty' within its territorial sea, this
sovereignty is circumscribed in a number of ways. It is helpful to consider the juris-
diction enjoyed by a State within its territorial sea alongside that which it may
exercise within its internal waters and in any contiguous zone that lies beyond,
since these together represent a progression from the strongest to the weakest form
of jurisdictional competence over maritim~ spaces based upon territorial sovereignty.
1. Internal waters
Predictably, a coastal State exercises sovereignty to its fullest extent within internal
waters. No State is obliged to allow foreign vessels into its internal waters, except in
cases of distress and, exceptionally, where drawing straight bas~lines encloses waters
which were not previously regarded as such, the right of innocent passage (described
below) applies (LOSC Article 8(2)). Otherwise, coastal States are free to restrict or
impose conditions upon entry into internal waters, including ports. Indeed, many
international conventions are drawn up which require States to prevent unseaworthy
vessels from entering ports as a matter of international law.
Once a foreign vessel has entered internal waters it is subject to the domestic
legislation of that State which can, in principle, be enforced against it. On entering a
11 Fisheries Jurisdiction (United Kingdom v Iceland), Jurisdiction of the Court, Judgment, ICJ Reports
1973, p 3 at p 27.
THE LAW OF THE SEA
port, the port state (as it is known) is particularly well-placed to take enforcement
action against vessels, if only because it can prevent them from leaving and the
expansion of 'port state jurisdiction' over vessels is one feature of contemporary law,
particularly as regards vessels which have breached health and safety regulations or
have been causing pollution outside of the territorial sea of the State concerned
(Qz<;ayir, 2001). However, States generally exercise restraint in enforcing local law
over incidents taking place on board foreign vessels in their ports, limiting this to
matters such as the infringement of customs laws, or activities which threaten to
disrupt the peace of the port. This may include offences such as murder 12 which have an
intrinsic gravity that on board scuffles between crew members lack. States will, how-
ever, generally exercise their jurisdiction over incidents involving non-crew members,
as these involve more than the 'internal economy' of the vessel, and in instances where
the captain requests intervention. Such restraint reflects the temporary nature of
the vessel: s presence and the fact that the flag State of the vessel itself has the right to
exercise jurisdiction, it often being the more appropriate State to do so.
2. Territorial sea
The dominant view is that coastal State jurisdiction automatically extends to the
territorial sea, with the logical corollary that all of a State's laws also apply there.
However, this does not mean that it enjoys an unfettered discretion regarding
the content of that legislation since international law places some restrictions upon
this, the most important of which concerns vessels exercising the right of innocent
passage, considered below. Moreover, logic does not necessarily make for practicality
and the full rigours of this approach (assuming it to be doctrinally correct) are
mitigated by a more restrictive approach to the enforcement of domestic law within
the territorial sea, irrespective of whether a vessel is engaged in innocent passage
or not.
It would be odd if States were to enforce their criminal law over vessels merely
passing through their territorial·seas in circumstances which would not have triggered
enforcement within internal waters and so LOSC Article 27(1) exhorts States to
refrain from investigating or arresting those suspected of offences committed on
board the vessel unless: the consequenc~s extended to the coastal State; if it was of a
kind to disturb the peace of the country or the good order of the territorial sea;
assistance was requested; or if necessary for the suppression of illicit traffic in drugs
(LOSC Article 27(1)(a)-(d)). If the vessel has just left the State's internal waters it
need show no such restraint (LOSC Article 27(2)), but in all cases the coastal State is
to have 'due regard to the interests of navigation' when deciding whether, or how, to
carry out an arrest within the territorial sea. These provisions apply to the criminal
jurisdiction of the State. There are further exhortations against the exercise of juris-
diction over vessels in respect of civil matters, chief of which is that vessels should not
12 Eg US v Wildenhaus, 120 US 1 (1887), concerning the assertion of jurisdiction by the local courts over a
murder on board a Belgian vessel in New York harbour.
 MALCOLM D EVANS
be stopped to exercise civil jurisdiction over an individual or with regard to actions in
rem, rather than in respect of the activities of the vessel itself (LOSC Article 28).
Finally, and unsurprisingly, coastal States are not permitted to arrest a warship or
other vessels being used for governmental purposes which belong to another State.
Rather, such vessels may be 'required' to leave the territorial sea immediately (LOSC
Article 30) and it is implicit in this that the requisite degree of force necessary to
ensure compliance with such a request might be used.
3. Contiguous zone
Traditionally, where the territorial sea ends, the high seas began and the laws of the
coastal State no longer apply. However, policing maritime zones is no easy.matter
and, unlike land boundaries, they are simple to cross. It would therefore be easy for
vessels to commit offences within the territorial sea but to evade arrest by moving just
a little further seawards. The answer is to permit coastal States to arrest vessels outside
their territorial seas in connection with offences that either have been committed or
which it is suspected are going to be committed within their territorial sea. Under
LOSC Article 33 (and following a compromise first agreed upon in the 1958 TSC
Article 24), the coastal State is permitted to 'prevent' and 'punish' infringements of
some, but not all, of its laws; those concerned being 'customs, fiscal, immigration or
sanitary laws and regulations' in a zone which might be up to twenty-four miles from
the baselines (permitting a State with a three-mile territorial sea a contiguous zone
of up to twenty-one miles). Not all States have declared a contiguous zone, but their
usefulness is such that there is something of a trend towards doing SO.13
The ability to 'punish' means that vessels that have committed such offences within
the territory of the State may be arrested even though they have left the territorial
seas. The ability to 'prevent' suggests that a State might stop a vessel from entering its
waters when it has reason to believe that such an offence would be committed should
that vessel enter. This is clearly open to abuse. Indeed, the entire concept represents a
not insignificant extension of coastal State authority and there is a tendency for States
to assert jurisdiction for a more ambitious range of matters than those mentioned in
the convention text.
c. NAVIGATION IN THE TERRITORIAL SEA
The desire of coastal States to assert their jurisdiction in the waters off their coasts is
matched by the needs of the international community to ensure that the seas remain
open to navigation. Once again, there has been a progressive development in the
range of regimes applicable to navigation within waters over which coastal States
exercise sovereignty. The principal regime concerns innocent passage through the
territorial sea and the manner in which the balance between competing interests has
13 Some seventy States currently claim contiguous zones for a variety of purposes (not all in compliance
with the LOSe) and the overwhelming majority are of twenty-four miles.
THE LAW OF THE SEA
been struck within that regime has shifted over time. In addition, some entirely new
regimes of passage have been developed that reflect other developments.
1. Innocent passage
Ships of all States enjoy a right of 'innocent passage' through the territorial seas of
coastal States. For these purposes, 'passage' means that the vessel is in the process of
travelling through the territorial sea, irrespective of whether it is or has been visiting a
port or internal waters and is doing so in a. 'continuous and expeditious' fashion,
though there are exceptions for stops which are 'incidental to ordinary navigation'
or as a result of force majeure (LOSe Article 18). Thus a ship ambling within the
territorial sea in a circuitous manner would not be engaged in 'passage' at all.
Not all passage is, however, innocent. According to the 1958 TSe Article 14(4)
'Passage is innocent so long as it is not prejudicial to the peace, good order or security
of the coastal state'. It is, however, unclear who is to make that determination. In
the Corfu Channel case 14 the ICI adopted a fairly objective approach, suggesting that
the innocent nature of passage was capable of objective assessment, that the opinion
of the coastal State was not decisive and the mere fact that a violation of local law
had occurred was not in itself sufficient to demonstrate prejudice to the interests of
the coastal State. The difficulty lay in balancing the need to allow coastal States
sufficient capacity to decide whether measures could be taken against vessels with risk
of such decisions being arbitrary and capricious. The Corfu Channel case seemed to
point in favour of ships in passage. The balance struck in the 1958 TSC formula
seemed to turn back towards a more subjective and coastal-State oriented approach. It
also provided for two special cases in which the very manner of passage would be
enough to result in the loss of innocence, irrespective of whether there was prejudice
to the coastal State or not: these concerned infringements by foreign fishing vessels
of local legislation concerning fishing in the territorial sea (TSe Article 14(5)) and
the requirement that submarines were to 'navigate on the surface and show their flag'
(TSC Article 14(6)).
These provisions were widely regarded as unsatisfactory, particularly given the
trend towards increasingly broad belts of territorial seas. Although LOSC Article
19(1) endorses the general principle established in TSC Article 14(1), it takes a more
objective approach to the determination of innocence by setting out in Article 19(2) a
considerably longer list of activities and circumstances in which innocence is deemed
to be lost, irrespective of actual prejudice or infringement oflocallaw. Moreover, these
heads were themselves open textured (including the final catch-all 'any other activity
not having a direct bearing on passage': Lose Article 19(2) (j) ). At first sight this might
suggest the right of innocent passage has been limited even further. This has to be
balanced against the argument that the list of exceptions is now exhaustive and closed,
an argument forcefully put by the USA and former USSR in a joint statement in 1989.
14 Corfu Channe~ Merits, judgment, ICj Reports 1949, p 4 at pp 30-31.
 MALCOLM D EVANS
However, the wording of the Convention is ambiguous on this matter, to say the least.
Churchill and Lowe also point out that Article 19(2) refers to 'activities' and so the
mere 'presence' of a vessel may no longer be sufficient to deprive it of innocence
(Churchill and Lowe, 1999, p 85). It is clear that there is still considerable controversy
surrounding this Article, but it would be consonant with the general thrust of the
convention if it were to be understood as representing a modest move towards
enhanced, but objectively verifiable, coastal State control over passage through the
territorial sea.
Even this assessment must be balanced against the developments concerning the
other plank of the innocent passage regime. Being engaged in innocent passage does
not exempt a vessel from the need to comply with coastal State legislation; but the
coastal State may only legislate for the range of issues that are set out in LOSC Article
21. These concern the safety of navigation, cables and pipelines; the conservation of
living resources and prevention of infringements of fisheries laws; matters concerning
the preservation of the environment and marine pollution, marine scientific research,
and prevention of infringements of customs, fiscal, immigration, and sanitary laws.
By way of checks and balance, however, the coastal State may not use these legislative
competences in ways which hamper innocent passage by, for example, imposing
onerous or discriminatory requirements (LOSC Article 24(1)). Moreover, such laws
'shall not apply to the design, construction, manning or equipment of foreign
ships unless they are giving effect to generally accepted· international rules or
standards' (LOSC Article 21(2)), these being those agreed under the auspices of the
International Maritime Organization (IMO)). The coastal State does have the power
to 'suspend temporarily' innocent passage in specified areas, but only if this is non
discriminatory and is 'essential for the protection of its security' (LOSC Article
25(3) ).
Vessels violating such laws are liable to arrest in accordance with Article 27 even
when exercising the right of innocent passage through the territorial sea. It would, of
course, be in breach of international law for a coastal State to enforce laws on matters
other than these upon a vessel simply because it ceased to be engaged in innocent
passage by reason of entering internal waters. The more exacting standards that can be
applied to ships not engaged in· innocent passage can only be enforced against those
whose passage ceased to be innocent whilst in the territorial sea and in accordance
with Article 27.
A final question concerns the range of vessels which are entitled to exercise inno-
cent passage. The convention texts refers to 'ships' and in the Passage through the
Great Belt case lS Denmark questioned whether the regime was applicable to structur.es
such as oil rigs. The better view is that a broad, purposive approach should be taken in
unusual cases such as this, but the most controversial issue is whether warships can
exercise a right of innocent passage. No agreement could be reached on this issue at
15 Passage Through the Great Belt (Finland v Denmark), Provisional Measures, Order of 29 July 1991, ICJ
Reports 1991, p 12.
THE LAW OF THE SEA
UNCLOS I or III, and the matter is not dealt with directly by the TSC or the LOSe.
The major maritime powers favour warships enjoying the right of innocent passage,
but this is opposed by many smaller States or those in strategically sensitive
locations.
There are three schools of thought: that the passage of warships requires the prior
authorization of the coastal State; that such passage must be notified to the coastal
State, though no express authorization need be requested or given; or that such
passage is possible provided that it conforms to the general rules on innocent passage
as set out in the convention. For some, this last approach is implausible since the mere
presence of a foreign warship within a territorial sea is prejudicial to the coastal State's
interests. However, the move towards focusing upon 'activities' rather than the pres-
ence of ships within the territorial sea in the LOSC makes this argument less per-
suasive. Moreover, the convention texts provide some support for warships enjoying
innocent passage: the general rules are set out in a section headed 'Rules Applicable to
all Ships'; some of the activities listed in Article 19(2) as leading to the loss of inno-
cence can only (or largely) be undertaken by warships; and submarines, most (but not
all) of which are warships, can exercise that right if surfaced and showing their flag
(Churchill and Lowe, 1999, p 89). Neither argument is wholly convincing and State
practice is as diverse as it is predictable, with major powers such as the UK and the
USA (joined by the USSR in their 1989 Joint Statement 16 ) arguing in favour of the
right of innocent passage, and less powerful coastal States legislating for authorization
or notification. Despite the growing trend towards increased coastal State dominance
of offshore areas, the sheer imperatives of essential military interests would suggest
that this is likely to remain a matter of controversy for some time to come, though on
a day-to-day basis pragmatic solutions are likely to be adopted.
2. Straits
The regime of innocent passage is a concession by coastal States to accommodate the
interests of navigation but, as has been seen, the coastal State still enjoys a formidable
array of jurisdictional competences. Whilst this might be acceptable where there is no
real need, other than convenience or desire, to enter the territorial seas, different
considerations apply to narrow straits wholly comprised of territorial seas but which
are also used for international navigation, such as the straits of Dover, Gibraltar, and
Hormuz. In such cases, international law shifts the balance somewhat in favour of the
freedom· of navigation (see generally Nandan and Anderson, 1989; Jia, 1998).
In the Corfu Channel case the ICT concluded that, irrespective of the position more
generally, warships were entitled to exercise a right of innocent passage through straits
used for international navigation and that coastal states were not entitled to 'suspend'
innocent passage within sw;::h straits for any form of shipY This variant on innocent
16 USA-USSR Uniform Interpretation of Norms of International Law Government Innocent Passage
(1989),14 Law of the Sea Bulletin 12. See Schachte, 1993, pp 182-183.
17 Corfu Channe~ Merits, Judgment, ICJ Reports 1949, p 4 at p 28.
 MALCOLM D EVANS
passage, however, only applied in straits linking one part of the high seas with another
and which were actually used as a route of international navigation. Importantly, the
existence of a relatively convenient alternative (in this case, around the western side
of the Island of Corfu) did not deprive it of this status. Arguably, this was an overly
generous approach to the interests of the international community at the expense of
the coastal State but it was nevertheless reflected in 1958 TSC Article 16(4) which
further expanded the regime by applying it to straits linking the high seas with the
territorial sea of a third State at the head of a Gulf, this being intended to facilitate
access to the Israeli port of Eilat at the head of the Gulf of Aqaba. This latter gloss did
not reflect customary law, and was rejected by Arab States, but was retained in Article
45 of the LOSC which reflects the TSC approach, though expanded to take account of
the EEZ.
Under the LOSC, the Corfu Channel regime of 'non-suspendable innocent passage'
has something of a residual flavour, now applying only to straits not covered by
the new regime of transit passage, considered below. However, there is no doubting
the customary law status of the Corfu Channel regime which provides an assured
minimum guarantee of passage though international straits for all.
3. Transit passage
A major problem facing UNCLOS III concerned the consequences of the breadth of
the territorial sea increasing from three to twelve miles. This meant that many major
strategic waterways which had previously been high seas, such as the Straits of Dover,
would become territorial sea and at best be subject to the regime of non-suspendable
innocent passage. During the Cold War, when super-power security was thought to
depend in part on undetectable submarine-based nuclear missiles, the idea that sub-
marines should surface and show their flags when prowling the oceans was an add-
itional hurdle. The result was a comprise that sought to further reduce the ability of
coastal States to regulate passage.
The LOSC regime of transit passage applies to all straits connecting high seas or
EEZs with other areas of high seas or EEZs and which are used for international
navigation unless (a) there is a corridor of high seas or EEZ running through it (LOSC
Article (36) ) or (b) the strait is formed by an island which belongs to the coastal State
and seawards of which there is an alternative route (LOSC Article 38(1)). In cases
covered by this latter rule, known as the 'Messina Strait' exception (after the Straits
between Italy and Sicily) the Corfu Channel regime of non-suspendable innocent
passage continues to apply. Straits covered by particular treaty regimes, such as the
Turkish Straits (the Dardanelles and the Bosphorus) are also expressly excluded from
the scope of these provisions (LOSC Article 35(c)).
Whereas innocent passage only applies to ships and submarines, transit passage
also applies to aircraft which are accorded the right of overflight. Although not
expressly stated, the regime applies to military ships and aircraft and submarines may
proceed submerged. Ships or aircraft must 'proceed without delay' and 'refrain from
any threat or use of force' against the States bordering the strait (thus hurrying
THE LAW OF THE SEA
through the Straits of Gibraltar to conduct military activities in the eastern Mediter-
ranean would be permissible). Although ships and aircraft must comply with gener-
ally accepted international regulations regarding safety matters (LOSC Article 39),
coastal States may themselves only regulate a very circumscribed list of activities:
maritime safety (including traffic separate schemes); internationally approved regula-
tions concerning discharges of oil, oily waste, and noxious substances in the strait;
with respect to fishing vessels, prevention of fishing and the stowage of fishing gear;
and loading and unloading in connection with customs, fiscal, immigration, or sani-
tary laws (LOSe Article 42(1)). The balance struck clearly favours the freedom of
navigation. The customary law status of transit passage has been challenged (de
Yturriaga, 1991) and remains unclear, although State practice outside the convention
framework increasingly adopts similar approaches and the increasing numbers of
States party to the LOSC has taken much of the heat out of this debate.
4. Archipelagic sea lane passage
Drawing archipelagic baselines converts vast tracts of waters which were previously
either high seas or territorial seas into 'archipelagic waters'. LOSe Article 52 provides
that the right of innocent passage applies throughout such waters and, moreover,
Article 53 provides for a right of 'archipelagic sea lane passage' in 'corridors' to be
designated by the archipelagic State. This is substantially similar to transit passage,
meaning that the jurisdiction of archipelagic States over a wide range of matters
in waters within their baselines is substantially reduced. Once again, the needs of
international navigation have taken precedence over local control.
IV. THE HIGH SEAS ,
A. THE FREEDOMS OF THE SEAS
The idea that beyond the territorial seas lie the high seas which are free for use by all
lies at the heart of the law of the sea. Both the 1958 HSC and the LOSC proclaim
the high seas to be free and open to vessels of all States and give non-exhaustive lists
of freedoms. The Hse mentions navigation, fishing, overflight, and cable laying
(HSC Article 2) and the LOSC adds the construction of artificial islands and marine
scientific research. All are to be enjoyed with 'due regard' (in the HSC, 'reasonable
regard') to the interests of others (LOSC Article 87).
We have already seen how that space has been eroded by the expansion of the
territorial seas, and some of the balances that have been struck as a consequence. Later
sections will look at how the high seas have been further eroded by the creation of
zones of functional jurisdiction. This section considers how the freedom of navigation
on the high seas has fared.
The key to regulating activities within the high seas is the concept of flag State
 MALCOLM D EVANS
jurisdiction. All vessels must be registered according to the laws of a State and, in
consequence, are subject to its legislative jurisdiction and, whilst on the high seas or
within its own territorial sea or EEZ, its enforcement jurisdiction. In principle, the
flag State enjoys exclusive jurisdiction, though there are exceptions. However, if a ship
is stateless, or flies more that one flag and its true state of registry is not clear, then any
State can exercise jurisdiction over it. 18
Clearly, the content of domestic law applicable to a vessel will vary, though the
increasingly large number of international conventions relating to a whole host of
matters, such as pollution control, resource management, and health and safety at sea,
seeks to ensure as common an approach as possible. Beyond this lies the problem of
enforcement. Many States simply do not have the capacity to enforce their laws over
vessels which may rarely return to their flag States, or simply lack the will to do so. A
State is obliged to 'effectively exercise its jurisdiction and control' over ships operating
under its flag (LOSC Article 94( 1) ) but this is often easier said than done. Moreover,
States are entitled to set their own conditions for registering ships, and although there
must exist a 'genuine link' between vessel and State, attempts to lend greater precision
to this requirement have not been successful and the problem of vessels being
registered under 'flags of convenience', which exercise little effective control over their
activities, remains. It is against this background that the subtle but steady erosion of
the exclusive jurisdictional competence of the flag State over its registered ships must
be assessed.
B. THE EXCEPTIONS TO FLAG STATE JURISDICTION
1. Visit
It is axiomatic that the authorities of one State may not board a vessel flying the flag of
another without consent. However, as will be seen below, there are a number of
instances in which the authorities of a non-flag State are nevertheless entitled to take
action against vessels on the high seas. But since it will not always be immediately
apparent whether such action is permissible, international law recognizes an inter-
mediary position in which the authorities of a non-flag State might board a vessel in
order to verify whether their suspicions were justified. These instances arise where
there are reasonable grounds for suspecting that a ship is engaged in piracy, the slave
trade, or unauthorized radio broadcasting (LOSC Article 110(l)(a)-(c), the con-
sequences of which are considered below. In addition, a ship might be visited to
confir'm that it is either stateless or, in cases of doubt, that it is in fact of the nationality
of the visiting authorities, in which case the visiting authority can assert its juris-
diction according to the principles mentioned in the previous section. In all of these
cases a visit, and any subsequent action, may only be undertaken by a warship or other
vessel or aircraft duly authorized and clearly marked (LOSC Articles 110(5) and 107)
18 See, eg Molvan v Attorney General for Palestine [1948] AC 351.
THE LAW OF THE SEA
but these powers cannot be used against a warship of another State, or any other vessel
entitled to immunity.
2. Piracy
Under both customary internati()nal law and the conventions all States may take
action on the high seas, or in any other place beyond the national jurisdiction of
a State, against individuals or vessels involved in acts of piracy. Those committing
piratic acts are said to have rendered themselves 'enemies of all mankind' and piracy
is the oldest and most well-attested example of an act which attracts universal
jurisdiction. 19 However, the LOSC definition of piracy is comparatively narrow, cover-
ing only 'illegal acts of violence or detention, or any act of depradation, committed for
private ends by the crew or passengers of a private ship or private aircraft and directed
(i) on the high seas, against another ship or aircraft, or against persons or property on
board such a ship or aircraft; (ii) against a ship, aircraft, persons or property in a place
outside the jurisdiction of any State' (LOSC Article 101(a»).
Underlying this definition is the idea that pirates roam the seas in their own vessels,
beyond the reach of any flag State, and prey on other vessels whose own flag State may
not be in a position to react or respond. Whilst reflecting historical models, and
Hollywood stereotypes, the reality is often very different. Its shortcomings were illus-
trated by the Achille Lauro incident in the mid-1980s in which a group of passengers
seized control of an Italian cruise liner, and caused the death of a passenger. Although
those responsible were clearly susceptible to, inter alia, Italian jurisdiction, this
prompted the adoption of the 1988 Rome Convention on the Suppression of Unlaw-
ful Acts Against the Safety of Maritime Navigation. Following the pattern set by
numerous other international conventions, this sets out an extensive range of offences
which States parties must render criminal under their domestic law and obliges them
either to extradite or to submit the cases of those suspected of committing such acts to
their prosecuting authorities. Although this does not grant States parties further
jurisdictional capacities at sea, it does oblige them to extend the use of their existing
domestic legal apparatus against those who imperil the freedom of navigation.
3. Hot pursuit
The problem of vessels which commit offences within internal waters or the territorial
sea evading arrest by moving beyond them has already been mentioned and one
response- the contiguous zone-noted. The doctrine of 'hot pursuit' provides
another means of addressing the same problem and forms another exception to
the principle of exclusive flag State jurisdiction on the high seas. According to this
doctrine, the rather complex details of which are set out at length in LOSC Article Ill,
warships or military aircraft of a coastal State which have commenced the pursuit of a
19 See, for example Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary
Objections and Merits, Judgment, ICJ Reports 2002, p 3. Separate Opinion of Judges Higgins, Kooijrnans, and
Buergenthal, para 61; Separate Opinion of President Guillaume, para 5.
 MALCOLM D EVANS
vessel within their territorial sea (or the contiguous zone if the offence in question is
one for which an artest can be made there) may continue that pursuit outside of it
provided that the pursuit is continuous (although the actual ship or aircraft involved
in the pursuit might change).
A further variant on this is <constructive presence'. Rather than commit an offence
within the territorial sea, some vessels choose to remain just outside and dispatch
smaller boats to, for example, take illegal goods ashore. Under such circumstances,
the <mother' vessel might be chased and arrested even though it has never entered the
territorial sea and the pursuit begins outside of it. The same is true should boats be
sent out from the coastal State to meet the <mother' vessel: in both cases there has
been teamwork that implicates the vessel operating outside of the territorial seas with
those committing offences within it.
How far can this be taken? In R v Mills, the Poseidon, a vessel registered in St
Vincent, transferred a consignment of drugs on the high seas to a trawler sailing from
Ireland to the UK. Following the arrest of the trawler in the UK, the Poseidon was also
arrested, this being justified on the basis of <constructive presence' (Gilmore, 1995).
Taken to extremes, this suggests that any vessel which whilst at sea colludes with
another vessel which subsequently commits an illegal act within the jurisdiction of a
State is liable to arrest by that State anywhere on the high seas. Though not irreconcil-
able, this sits rather uneasily with the caution of the ITLOS in MIV Saiga (No 2) which
stressed the need for a strict approach to be taken to the application of LOSC Article
111.20
4. Broadcasting
In the 1960s elements of the international community became agitated about the rise
of commercial broadcasting into a country from foreign registered vessels on the high
seas and over which they could not exercise any control (or extract revenues). Regional
State practice to address this problem in the North Sea was subsequently built on with
the result that the LOSC Article109 permits the arrest and prosecution of any person
engaged in <unauthorized radio broadcasting' from ships or installations on the high
seas by a range of States, including the State where the transmissions are received. A
perhaps unexpected consequence of this arose in the early 1990s when a vessel called
the Goddess of Democracy planned to broadcast messages of solidarity and support for
those arrested in the pro-democracy demonstrations in Bejing. The Chinese made it
clear they would arrest the vessel if it did so, and the mission was aborted.
5. Slavery
The rather heavy-handed approach to radio broadcasting contrasts with the com-
paratively feeble manner in which other, more pressing, issues were tackled. The
international prohibition of slavery is well-established in international law yet
20 MIV Saiga No 2 CSt Vincent and the Grenadines v Guinea), Case No 2, Judgment of 1 July 1999,
paras 146-152.
THE LAW OF THE SEA
the convention does not permit the arrest of vessels engaged in slave trading by non-
flag States, merely providing that a State <shall take effective measures to prevent and
punish the transport of slaves in ships authorized to fly its flag' (LOSC Article 99).
Admittedly, that Article also provides that any slave fortunate enough to escape and
talze refuge on a non-flag State vessel <shall ipso facto be free' and since there is a right
to visit vessels suspected of being involved in slave trading this should not be difficult
to manufacture. Nevertheless, it remains difficult to see why those involved in the
trade, and the vessel itself, should not be capable of arrest under such circumstances
without the express authorization of the flag State.
6. Drugs trafficking
The LOSC provisions concerning drugs trafficking have also been found wanting.
Article 108 is an anodyne provision which merely provides that States <shall co-
operate' in the suppression of the drugs trade by vessels on the high seas and that
a State which suspects a vessel flying its flag is involved in trafficking <may request
the co-operation of other states to suppress such traffic'. This states the obvious. The
1988 Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances takes the matter further, developing and institutionalizing a more detailed
framework for cooperation, but boarding a vessel still requires flag State authoriza-
tion as there is no right of visit under LOSC Article 110. This was vividly illustrated
in R v Charrington where irregularities in the manner Customs and Excise obtained
the consent of the Maltese authorities to board a vessel carrying £15m of cannabis
resulted in the collapse of the prosecution (Gilmore, 2000). State practice has gone
further and arrangements for mutual enforcement and assistance have been con-
cluded in a number of spheres, particularly fishing. In addition, the UK has concluded
bilateral arrangements permitting US authorities to board British vessels suspected
of drugs offences on the high seas within the Caribbean region. Once again, it may
be that long-standing dogmas have stood in the way of devising effective means of
tackling a matter of major international concern.
C. CONCLUSION
The freedom of navigation has, then, been the subject of some whittling away, both
by reason of the increasing breadth of the territorial sea, outlined in Section III, and
by the erosion of exclusive flag State jurisdiction outlined above. However, the modifi-
cations to the regime of innocent passage and the new regime of transit passage, as
well as the limited and piecemeal nature of the increased jurisdictional competence
over non-flag State vessels, all point in the direction of the continuing significance
of the freedom of navigation. This is further underscored by the remaining sections of
this chapter which chart the rise of functional zones of jurisdiction and which,
although representing a marked diminution in other freedoms of the high seas, left
navigation relatively untouched and also ensured that the increase in the breadth of
the territorial sea was kept within modest bands.
 MALCOLM D EVANS
v. RESOURCE JURISDICTION
A. THE CONTINENTAL SHELF
During the opening decades of the twentieth century improvements in technology
made the exploration and exploitation of seabed and subsoil resources beyond
the territorial sea-particularly oil and then gas-increasingly possible. In theory,
these deposits were available to all since legally speaking they were high seas resources.
However, orderly and effective development required some involvement of a
proximate coastal State and in the Truman Proclamation (1945), the US President
declared 'the natural resources of the subsoil and seabed of the continental shelf
beneath the high seas but contiguous to the coasts of the US as appertaining to the US,
subject to its jurisdiction and control'.21 Following consideration by the ILC, the 1958
CSC provided that 'The coastal state exercises over the continental shelf sovereign
rights for the purpose of exploring it and exploiting its natural resources' and did
so independently of express acts or declarations (Articles 2(1) and 2(3». In
the North Sea cases the ICJ recognized this as a statement of customary law, stressing
that these rights existed 'ipso facto and ab initio'.22 LOSC Article 77 reiterates this
approach.
Natural resources include both mineral and other non-living resources of the
seabed and subsoil and well as 'sedentary species' (eSC Article 2(4); LOSC Article
77(4». Thus pearling is clearly covered by this definition, whereas wrecks are not.
Whether crabs and lobsters are continental shelf resources is more controversial,
although the EEZ now provides an alternative means of securing coastal State
jurisdiction over such resources.
The most vexed question concerns the outer limit of continental shelf jurisdiction.
The seabed off a coast may not be a 'continental shelf' in a geophysical sense at all: the
coast may swiftly plunge to great depths, as it does off the western coasts of much
of South America, or merely be shallow indentations into which water has flooded, as
in the Gulf region of the Middle East. The continental shelf proper is merely a
component of the 'continental margin' which comprises the gently sloping shelf,
which gives way to a steep slope which then levels off into the continental rise that
emerges from the ocean floor (sometimes rather prosaically described as the 'Abyssal
Plain'). The 1958 CSC did not draw directly on any of these concepts and defined the
continental shelf, for legal purposes, as extending from the limits of the territorial
seawards to the point where the waters above were 200 metres deep, or as far seawards
as it was possible to exploit (CSC Article 1). This was most unsatisfactory since it
permitted States to claim ever more distant areas as technology rapidly developed.
Moreover it ran into the claim advanced in the late 1960s that the deep seabed was the
21 1 New Directions in the Law of the Sea 106.
22 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, paras 19,39, and 43.
THE LAW OF THE SEA
'common heritage' of all mankind and not subject to single State jurisdiction. It
was, then, necessary to place some limit on the seawards expansion of continental
shelf jurisdiction.
In the North Sea cases the ICJ argued that the continental shelf represented
the 'natural prolongation' of the landmass into and under the sea,23 implying
some limit to its seawards expansion. However, this still did not address the claims of
States which had no 'natural prolongation' in this sense, but who sought juris-
diction over offshore seabed and subsoil resources and argued that the continental
shelf should be a fixed distance, measured from the baselines, irrespective of the
nature of the seabed. This was opposed by 'broad shelf' States who already exercised
jurisdiction on the basis of 'natural prolongation' beyond the most likely fixed limit
of 200 miles.
This conundrum was resolved by the complex compromise reflected in LOSC
Article 76, according to which the continental shelf extends to (a) 200 miles from the
baselines or (b) to the outer edge of continental margin (this being seen as the natural
prolongation), whichever is the further. The outer edge of the margin is calculated
with reference to the 'foot' of the continental slope, this being the point where the
continental slope gives way to the continental rise. From this point, a State might
either exercise jurisdiction for a further 60 miles seawards, or as far as a point where
the depth of the 'sedimentary rock' (loose, rather than bedrock) overlying the con-
tinental rise is more than 1% of the distance of that point from the foot of the slope.
These outer lines are then subject to one of two alternative limitations: they cannot be
drawn more than 350 miles from the baselines of a State, or more than 100 miles from
a point at which the depth of the water is 2500 metres. Finally, exploitation beyond
the fixed 200 miles distance is subject to the State making 'payments or contributions
in kind' through the International Seabed Authority (LOSC Article 82).
This complicated formula is difficult to apply and its customary law status unclear.
It is particularly difficult to see how Article 82 could have a life outside the convention
framework. Nevertheless, it is vital to determine the outer limit of each State's con-
tinental shelf since the seabed beyond forms part of the 'Area', governed by its
own legal regime. LOSC Article 76(8) therefore establishes the Commission on
the Limits of the Continental Shelf, to which States must submit details of their outer
limits. The Commission then makes recommendations 'on the basis of which' the
State establishes its final boundary (Cook and Carlton, 2000). This is clearly opaque
and, since the Commission is only now starting to issue its first recommendations,
practice scant. What is clear is that the entire regime reflects a careful balancing
act between the interests of coastal States with varied geo-physical relationships to
the sea; to the economic interests of the international community as a whole and
to the interests of the freedom of navigation and of the high seas which are left
substantially untouched.
23 Ibid, para 18. For an extended discussion see Hutchinson, 1985.
 MALCOLM D EVANS
B. THE EXCLUSIVE FISHING ZONE
As States watched the international community recognize and legitimate coastal
State jurisdiction over the resources of the seabed and subsoil, it was inevitable that
the argument would be made that resources of the water column be treated likewise.
This was always going to be controversial since the seabed was, by and large,
of potential economic importance, whereas high seas fishing was already of very
real economic importance and excluding foreign-flagged fishing vessels from
waters beyond narrow belts of territorial seas would have serious consequences for
many communities and economies. However, the increased capacity of vessels
to harvest fish was increasingly putting stocks at risk and so there was a tension
between maximizing access to resources and promotIng effective conservation.
Viewed. in this light, increased coastal State control appears more beneficial than
high seas freedoms and this has been reflected in the developing law of fisheries.
This will be considered further in Section VII but it is important to note here the
emergence of the Exclusive Fishing Zone (EFZ) as an autonomous zone of resource
jurisdiction.
Neither UNCLOS I nor II could agree upon the establishment of an EFZ but
State practice moved steadily in the direction of recognizing the right of a coastal
State to assert jurisdiction over fisheries within twelve miles of its baselines and in
the 1974 Fisheries Jurisdiction case the ICJ recognized this as customary law.24
By this time, claims for zones of up °to 200 miles were being advanced, yet the
Court was not prepared to endorse Iceland's claim for an EFZ of up to fifty
miles in general terms, but argued that a State might exceptionally be entitled to
preferential access to the high seas resources within such a distance under certain
circumstances. 25 Such hesitations have been swept away by the development of
the EEZ and, although there is no mention of the EFZ as an autonomous regime
within the LOSC, it is clear that customary law now recognizes EFZ claims of up to
200 miles. 26
C. THE EXCLUSIVE ECONOMIC ZONE
The previous sections have already identified the· various pressures that mounted
through the 1960s and 1970s for coastal States to achieve exclusive access to the
resources of both the seabed and the water column, whilst not extending the terri-
torial seas. These pressures resolved themselves in the claim, first articulated by Latin
and South American States, that there be a single zone of up to 200 miles in which the
coastal State enjoyed sovereign rights over all natural living and non-living resources.
but within which the other freedoms of the seas, and in particular navigation, would
24 Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, p 3, para 53.
25 Ibid, paras 55-60.
26 See Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, ICJ Reports 1993,
p 316, accepting uncritically the Norwegian claim to an EFZ of this distance.
THE LAW OF THE SEA
be unaffected. This was achieved by the recognition through the UNCLOS III process
of the EEZ as customary law27 and, of course, by the LOSC itself.28
States may claim an EEZ of up to 200 miles (LOSC Article 57) within which the
range of matters reserved for the coastal State are so extensive that the Zone is
comprised of neither territorial nor high seas but is considered to be 'sui generis', and
subject to a distinct jurisdictional framework (LOSC Article 55). First and foremost,
coastal States exercise sovereign rights for the purposes of 'exploring and exploiting,
conserving and managing' both living and non-living natural resources (LOSe Article
56(1)(a)). Although this may seem to be an amalgamation of the continental shelf
and the EFZ, it embraces additional elements, including the harnessing of wind and
wave power. The coastal State also has jurisdiction, subject to the other provisions of
the convention, over the establishment and use of artificial islands and installations,
marine scientific research, and the preservation of the marine environment, as well as
a range of other matters (LOSC Article 56(b) and (c)).
Despite its 'sui generis' nature, the EEZ is pulled in a variety of directions. As
regards jurisdiction over the resources of the seabed and subsoil, it is aligned with the
continental shelf (LOSe Article 56(3) ). Article 58 provides that three of the freedoms
of the seas expressly mentioned in the convention-navigation, overflight, and laying
cables and pipelines, and related activities-are to be exercised by all States within an
EEZ in accordance with the general convention framework provided for in Articles
87-116 for the high seas and considered previously. Thus of the six high seas freedoms
identified in the convention, three pass to the predominant control of the coastal
State within its EEZ whilst three remain open to the international community at large.
Of course, this list of freedoms is not exhaustive and in situations not specifically
provided for, the question whether a matter falls within the jurisdiction of the coastal
State 'should be resolved on the basis of equity and in the light of all the relevant
circumstances, taking into account the respective importance of the interests involved
to the parties as well as to the international community as a whole' (LOSC Article
59). The MN Saiga (No 2) illustrates the type of problem that might arise. Guinea
arrested a vessel in its EEZ and argued, inter alia, that it was entitled to do so because
the vessel had been 'bunkering' (transferring oil to) a fishing vessel and thereby
avoiding customs duties. The ITLOS found it unnecessary to decide this point,29 but
it is clear that had bunkering occurred within the territorial sea, and the arrest taken
place within internal waters, the territorial sea, or a contiguous zone, the legitimacy of
the arrest would not have been an issue at all.
The heart of the EEZ, concerning jurisdiction over fisheries, is considered in
0
Section VII. However, it should be noted here that coastal States enjoy broad-ranging
legislative jurisdiction (LOSC Article 63(4)) and may take measures including
27 See Continental Shelf (Libyan A Jamahiriya/Malta), Judgment, ICJ Reports 1985, p 13.
28 For general studies of the origins an round see Attard, 1986; Orrego-Vicuna, 1989.
29 M/V Saiga No 2 (St Vincent and the Grena 0 s v Guinea), Case No 2, Judgment of 1 July 1999,
paras 56-590
 MALCOLM D EVANS
'boarding, inspection, arrest and judicial proceedings' which are necessary to
enforce laws and regulations concerning its sovereign right to 'explore, exploit, con-
serve and manage' living resources of the EEZ (LOSC Article 73). This is not without
difficulties. For example, the 1986 Franco-Canadian Fisheries Arbitration30 took the
view that a vessel engaged in fish processing fell outside the range of activities
over which the coastal State was entitled to exercise and enforce jurisdiction (for
criticism see Churchill and Lowe, 1999, p 291). Once again, the convention balances
this intrusive power over vessels within the EEZ against risks of abuse by requiring
that vessels or crew arrested 'shall be promptly released upon the posting of reason-
able bond or other securities' and restricting the nature of the penalties to which
they might be subject (LOSC Article 73). In addition, ITLOS enjoys an automatic
jurisdiction over claims concerning the prompt release of vessels (LOSC Article 292)
and this has so far generated a number of cases. 31
D. THE DEEP SEABED
The final resource zone carved out of the high seas is the most dramatic. The claim
that the seabed beyond the limits of national jurisdiction form the 'common
heritage of mankind', fuelled initially by some near fantastical estimates of the
potential mineral wealth at stake, has already been noted. The difficulty lay in trans-
lating that idea into a workable regime: the developed world favoured a loosely
structured international agency to oversee and regulate activities of those wishing
to conduct mining, whereas the developing world generally favoured creating a
strong international mechanism that would itself engage in mining and distribute
the proceeds as appropriate, taking account of the needs of developing countries and
developing land-based producers. Negotiations at UNCLOS III were tortuous, the
outcome satisfied few and was considered completely unacceptable by the developed
world in general and the USA in particular (Schmidt, 1989).
It was well understood that the convention text would need modifying to accom-
modate the interests of the major industrialized powers whose support would be
crucial for the recognition and successful operation of the regime. Some concessions
were made in Resolutions I and II appended to the Final Act of the Conference
itself. These granted certain privileges to 'pioneer investors', States and companies
registered in States which had already made a significant investment in seabed
mining. This, however, was too little too late. The breakthrough came in the early 1990s
when the likelihood of the convention's entry into force, coupled with the demise
of communism and changing economic and geo-political factors, produced a climate
30 Franco-Canadian Fisheries Arbitration (1986) 90 RGDIP 713.
31 MN Saiga (St Vincent and the Grenadines v Guinea), Case No 1, Judgment of 4 December 1997;
Camouco (Panama v France), Case No 3, Judgment of7 February 2000; Monte ConJurco (Seychelles v France),
Case No 6, Judgment of 19 December 2000; Grand Prince (Belize v France), Case No 8, Judgment of
20 April 2001; Chaisiri Reefer 2 (Panama v Yemen), Case No 9, Order of 13 July 2001; Volga (Russian
Federation v Australia), Case No. 11, Judgment of 23 December 2003.
THE LAW OF THE SEA
in which the balance struck by the convention text could be revisited, the more
bureaucratic and arcane layers of regulation swept away and a new balance struck
between the interests of those States and companies interested in mining the deep
seabed and the international community as a whole. Far reaching changes were made
in the 1994 Implementation Agreement which paved the way for widespread ratifica-
tion of the convention. Underlying this change of heart was the realization that the
financial rewards were likely to be considerably less than originally thought.
Under the current arrangements, resource exploration and exploitation of the
seabed and subsoil beyond the limits of national jurisdiction, known as the 'Area', is
administered by the International Seabed Authority (ISA) to which applicants
must submit 'plans of work'. These must identify two areas of roughly equal mining
potential, one of which is to be mined by the applicant whilst the other will be
'reserved' for exploitation by the international community. In the original convention
scheme, exploitation of the 'reserved' site would be undertaken by the 'Enterprise',
an independent operational mining arm of the ISA but under the 1994 Agreement
the 'Enterprise' was given a considerably reduced role and is, at least initially, only able
to engage in joint ventures. If the Enterprise does not undertake the mining of a
reserved site within fifteen years, the original applicant may do so. Moreover, if it does
seek to mine the site, the original applicant is to be offered the chance to partic~pate in
the joint venture. As yet, the Enterprise has not been established and it may be that it
never will.
The details of the regime, and the manner in which it balances the interests of
various interest groups-including consumer States, investing States, producing
States, developing States, landlocked States, and others-is such as to defy easy and
succinct description and must be pursued elsewhere. For the current purposes,
what is significant is the manner in which the international community-after a
number of false starts-was able to agree to extract the resource potential of the se-
bed and subsoil from of the high seas regime and create a further regime of resource
jurisdiction whilst preserving the integrity of the general jurisdictional framework
applicable to the law of the sea.
VI. DELIMITATION OF MARITIME ZONES
BETWEEN OPPOSITE OR ADJACENT STATES
It will often be impossible for States to extend their jurisdiction as far seawards as
international law permits because of the claims of other States. The resulting problem
of delimiting maritime zones between opposite or adjacent coastal States whose
claims overlap is extremely difficult and has given rise to more cases before the ICJ
than any other single subject, as well as having produced a considerable number of ad
hoc arbitrations.
 MALCOLM D EVANS
A. EQUIDISTANCE OR EQUITABLE PRINCIPLES?
LOSC Article 15 provides that, in the absence of agreement to the contrary, states may'
not extend their territorial seas beyond the median, or equidistance line, unless there
are historic or other (special' circumstances that dictate otherwise. This (equidistance/
special circumstances' rule has been accepted by the IC} as customary international
law3 2 and it seems clear that only in exceptional cases will the equidistance line not form
the basis of the boundary between overlapping territorial seas.
Article 6 of the 1958 CSC adopted the same approach to the delimitation of
overlapping continental shelves but its application in this context has had a more
chequered history (see generally Evans, 1989; Weil, 1989). In the North Sea cases
Denmark and the Netherlands argued that Article 6 represented customary law and
so bound Germany, a non-State party. Applying this rule mechanically to the concave
Germany coastline sandwiched between Denmark and Norway restricted Germany to
a modest triangle of continental shelf, to the substantial benefit of its neighbours.
Rather than ameliorate this outcome by arguing that the concave nature of the coast
was a (special circumstance' justifying another line, the IC} decided that Article 6
did not reflect customary law, and that customary law required continental shelf
delimitation to be conducted on the basis of equitable principles and taking account
of relevant circumstances. 33
This ushered in a period in which supporters of the more formulaic (equidistance/
special circumstances' approach vied with supporters of the relatively more flexible
(equitable principles/relevant circumstances' approach-though it is doubtful
whether there was ever much to choose between them. 34 At UNCLOS III groups of
States championed the approach they considered best suited their interests and, as no
consensus could be found, an anodyne formula, applicable to both continental shelf
and EEZ delimitation was adopted in the dying days of the conference. This provides
that such delimitations are to be (effected by agreement on the basis of international
law, as referred to in Article 38 of the Statute of the International Court of Justice, in
order to achieve an equitable solution'. This avoids mentioning equidistance, equit-
able principles, special or relevant circumstances-and is virtually devoid of content.
Around this time the IC} delivered a trilogy of judgments, all of which emphasized
the role of equity at the expense of equidistance, though in varying degrees. 35 Perhaps
these cases were too close in time to UNCLOS III to shake off the ideological hostility
32 Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v Bahrain), Merits,
judgment, ICj Reports 2001, not yet reported, paras 175-176. Cf Separate Opinion ofJudge ada, paras 13-21,
who challenged the Court's views of customary law.
33 North Sea Continental Shelf, judgment, ICj Reports 1969, p 3, para 101(c)(I).
34 Thus the 1977 Anglo-French Arbitration, Cmnd 7438,18 1LM 397, generally considered to lean towards
the equitable principles school of thought, proceeded on the basis that although CSC Article 6 and custom
were different the practical result of their application would be the same.
35 Continental Shelf (Tunisia/Libyan Arab jamahiriya), judgment, ICj Reports 1982, p 18; Delimitation of the
Maritime Boundary in the Gulf of Maine Area, judgment, ICI Reports 1984, p 246; Continental Shelf (Libyan
Arab jamahiriya/Malta), judgment, ICj Reports 1985, p 13.
THE LAW OF THE SEA
to equidistance. By 1993, however, the Court was prepared to declare in the Jan Mayen
case that (Prima facie, a median line delimitation between opposite coasts results
in general in an equitable solution'36 (Evans, 1999). Although the position regarding
the use of equidistance as the starting point for delimitation between adjacent coasts
is not quite as clear, the recent judgments of the IC} in the Qatar v Bahrain case37 and
most recently the Cameroon v Nigeria38 cases suggest that this is now the position.
B. FACTORS AFFECTING DELIMITATION
Even if equidistance provides the starting point, this does not mean it will be the.
finishing line. All formulations of the rule accept that it can be modified to take
account of other factors. Although the categories of potentially relevant factors are
never closed, the potential relevance-and irrelevance-of some factors is well estab-
lished. Close attention is usually paid to ensuring that areas appertaining to each State
are not disproportionate to the ratio between the lengths of their (relevant coasts'
adjoining the area (though this is clearly open to gerrymandering). Likewise, the
presence of islands capable of generating claims to a continental shelf or EEZ is a
complicating factor and their impact upon an equidistance line can be reduced or
discounted in numerous ways (Jayawardene, 1990). On the other hand, geological
factors are not considered relevant where the distance between the coasts is less than
400 rniles 39 and economic factors are generally considered irrelevant by courts and
tribunals, although they probably play a significant role in negotiated boundary
agreements.
It is difficult to go beyond this with certainty, and it is certainly not possible to
predict how the various factors will be taken into account. Courts and tribunals
increasingly refrain from indicating how-or why-the factors considered relevant
combine with the chosen methodology to produce the final line. This had led some
to observe that some judgments do little more than (split the difference' between
competing claims (Churchill and Lowe, 1999, p 191). However, in the most recent
case-Cameroon v Nigeria-the IC} dismissed the relevance of all factors and used an
equidistance line in an unmodified fashion, despite the presence of a number of
factors that might have been thought to have some claim to consideration. 40 One has
to . conclude that the application of the law pertaining to maritime delimitation
remains as mysterious as ever.
36 Maritime Delimitation in the Area between Greenland and Ian Maye/l, judgment, ICj Reports 1993, p 316,
para 64, a position affirmed in the Eritrea-Yemen Arbitration, Second Phase, Award of 17 December 1999,
para 131. . .
37 Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v Bahram), Merzts,
judgment, ICj Reports 2001, not yet reported, para 230.
38 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea
Intervening), Merits, judgment, ICj Reports 2002, not yet reported, para 288.
39 Continental Shelf (Libyan Arab jamahiriya/Malta), judgment, ICj Reports 1985, p 13, para 39.
40 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea
Intervening), Merits, judgment, ICj Reports 2002, not yet reported, paras 293-306.
 MALCOLM D EVANS
VII. FISHERIES
A. THE BASIC SCHEME OF REGULATION
Given its significance, it is perhaps surprising that the LOSC does not address fisheries
as a discrete topic. However, the manner in which the seas are divided for juris-
dictional purposes means that one has to look at each zone in turn. The basic scheme
seems simple enough; the coastal State exercises sovereignty over the territorial seas
and sovereign right to explore, exploit, conserve, and manage fishing in any EEZ or
EFZ that it might claim. In the high seas the freedom of fishing remains and fish
stocks are open to all, but the activities of fishing vessels are subject to the jurisdiction
and control of their flag State. The problems are, however, enormous. Overfishing
has endangered many fish stocks and there is a pressing need to agree upon and
. implement more effective strategies for conservation and management. ·At the
same time, the economic and nutritional needs of communities must be borne in
mind. The result is that the piecemeal approach to regulation is under increasing
pressure and a more holistic approach, built around the idea of sustainable develop-
ment might yet emerge (see Edeson, 1999; Orrego-Vicuna, 1999) though any
system that is ultimately dependent upon flag State enforcement will be vulnerable
to abuse.
One particularly noteworthy trend is the establishment of regional fisheries
bodies that regulate fishing for particular areas or for particular stocks and recent
multilateral treaty practice is moving beyond merely encouraging States to do this,
and requires States to participate in such regimes in order to have access to them.
However, such obligations only bind States which become party to such agree-
ments and many major fishing States simply choose not to do so and continue
to claim the right to fish these stocks as an aspect of the freedom of the high
seas. An alternative response is to extend coastal State jurisdiction still further
seawards but this also runs into fierce opposition. Canada adopted a slightly
different approach, by asserting its right to enforce conservation and manage-
ment measures adopted by the relevant regional body (NAPO) over non-flag
State vessels fishing beyond its 200-mile EEZ. The subsequent arrest in 1995 of
the Spanish registered Estai on the high seas prompted a serious incident between
the EC and Canada41 and illustrated the difficulty of pursuing the unilateral
route. For the moment, then, we can merely chart the trends in this direction whilst
outlining the major elements of the regimes applicable beyond the limits of the
territorial seas.
41 See Davies, 1995. Spain subsequently brought a case against Canada before the IC] which the Court was
unable to consider because Canada had previously removed such disputes from the scope of its consent to
the Court's jurisdiction. (See de LaFayette, 1999.)
THE LAW OF THE SEA
B. MANAGING FISHERIES
1. EEZ
Some 80-90% of all fishing takes place within EEZs. The coastal State does not enjoy a
completely unfettered right to exploit the fisheries resources of the EEZ under the
LOSC (though this may not be the position in customary law). LOSC Article 61(1)
requires the coastal State to 'determine the allowable catch' (known as the TAC) of
living resources. A number of factors feed into this determination, including the need
to 'ensure through proper conservation and management measures that the mainten-
ance of the living resources '.' is not endangered by over-exploitation' (Article
61(2). At the same time, these measures must themselves be .designed 'to maintain or
restore populations of harvested species at levels which can produce the maximum
sustainable yield' (Article 61(3». This, then, looks to conserving stocks, but Article
62(1) switches to the obligation to 'promote the objective of optimum utilization of
the living resources of the EEZ by requiring the coastal State 'to determine its capacity
to harvest' them. Where the harvestable capacity falls short of the TAC, the coastal
State is to give other States access to that surplus (Article 62(2», with particular
regard being given to the requirements of developing States in the area (Article
62(3)), as well as the interests oflandlocked and geographically disadvantaged States
(Articles 69 and 70; Vasciannie, 1990) in determining to whom access will the
offered. 42 Despite these provisions, since coastal States have their hands on both
levers-determining both the TAC and the harvestable capacity-their control over
EEZ fisheries is hardly troubled by these provisions which have more symbolic than
substantial significance. If it were otherwise, the attraction of declaring an EEZ rather
than an EFZ (in which these provisions would not apply) would be significantly
diminished.
The convention also provides special rules for particular categories of species,
including anadromous stocks, such as salmon, which spend most of their time at
sea but spawn in freshwater rivers (LOSC Article 66), catadromous stocks, such as
eels, which spawn at sea but spend must of their lives in fresh water (LOSC Article 67)
which again reflect the theme of reconciling the interests of the State of origin
with the established interests of others, and for marine mammals (LOSC Article 65)
The situation regarding 'straddling stocks' and 'highly migratory species' (LOSC
Articles 63 and 64) will be considered below.
Although the coastal State in principle enjoys complete control over fishing within
the EEZ, this has not prevented overfishing. Some States refuse to accept the need for
conservation of fish stocks in the face of more pressing and immediate interests,
whilst others are simply unable to control the fishing activities of foreign-flagged
vessels within their EEZ, both licenced or illegal.
42 Such access can, of course, be subject to licensing and fees and is more generally regulated by Lose
Article 64.
 MALCOLM D EVANS
2. High seas
It is often forgotten that the freedom of fishing upon the high seas is not unfettered.
The 1958 Convention on Fishing and Conservation of the Living Resources of the
High Seas (CFC) had recognized the 'special interest' of the coastal State in fishing
activities in areas adjacent to its territorial waters and sought to reflect that through
cooperative arrangements with States engaged in high seas fishing in the interests of
conservation and management (CFC, Article 6). LOSC Article 116(b) now expressly
subjects that freedom to the interests that coastal States have in the particular classes
of species identified in LOSC Articles 63-67 as well as the more general obligation to
conserve the living resources of the high seas by setting total allowable catches, based
on the maximum sustainable yield (LOSC Article 119). It has to be said that, to the
extent that this implies unilateral determinations and self-imposed restrictions, this
is little short of wishful thinking. How can the practice of a single State significantly
affect the overall pattern when its self-restraint may simply make more space for
others to over-exploit?
The key lies in coordinated and cooperative activities by all involved in fishing a
given stock or region and LOSC Article 118 recognizes this by requiring that States
'whose nationals exploit identical living resources, or different living resources in the
same area, shall enter into negotiations with a view to taking the measures necessary
for the conservation of the living resources concerned. They shall, as appropriate, co-
operate to establish sub-regional or regional fisheries organizations to this end'. This
approach is not new, having echoes in the 1958 CFC. However, only a limited number
of such bodies have been established. Some have been modest successes, notably the
Northwest Atlantic Fisheries Organization (NAPO) and the Commission for the Con-
servation of Antarctic Marine Resources (CCAMLR), though even these suffer from
poor records of enforcement. Others have been much less successful, such as the 1993
Convention for the Conservation of Southern Bluefin Tuna, where the failure of the
three States parties (Japan, Australia, and New Zealand) to agree a TAC and the
introduction an 'experimental fishing programme' by Japan prompted a case under
the LOSC dispute settlement provisions (Churchill, 2000; Boyle, 2001).
It is difficult to resist the conclusion that the problems of over-utilization of the
living resources of the high seas will remain until the right to exploit them is made
conditional upon partiCipation in a unified international regulatory framework.
However, the experience of creating the International Seabed Authority suggests
this might also be a route to paralysis and is bound to be fraught with difficulties.
Unless there is a further expansion of coastal State jurisdiction-itself no panacea
since coastal States have themselves fished their own resources to near extinction-it
is difficult to see what the international community can do except continue to press
the case for cooperation and coordination.
THE LAW OF THE SEA
3. Straddling stocks and highly migratory species
Fish do not respect man-made boundaries and many stocks 'straddle' the limits of
maritime zones. Where stocks straddle boundaries the LOSC provides that those
States concerned in the fisheries should, either directly or through appropriate
organizations should they exist, agree upon appropriate measures of conservation and
development (LOSC Article 63). Other stocks, especially tuna, are highly mobile and
travel great distances in the course of their regular life cycle, migrating through both
EEZs and high seas making them particularly vulnerable to predatory exploitation as
they pass. Once again, the convention's response is to call for cooperation with
respect to a list of species contained in Annex I to the convention, with the objective
of optimum utilization, and also calls for the establishment of appropriate regional
organizations where none exist (LOSC Article 64).
These rather open-textured provisions have since been built upon by the 1995
UN Agreement of Straddling Stocks and Highly Migratory Species (SSC)Y This,
inter alia, obliges States parties fishing for such stocks either to become members
of those fisheries management organizations that exist for the relevant region or
stock, or to agree to apply the measures which such an organization establishes,
and States parties to the Agreement which do not do so are debarred from having
access to the stock (SSC Articles 8(3) and (4)). In other words, States parties to the
Agreement may not fish for such stocks outside of the framework established by
any such organization (SSC Article 17). Since most fishing undertaken on the high
seas involves either straddling stocks or highly migratory species, this is an extremely
significant self-denying ordinance. Moreover, where regional fisheries organizations
do exist, SSC Article 21 permits the authorized inspectors of any State party to
board and inspect fishing vessels flying the flag of other State parties in order
to ensure compliance with the conservation and management measure that the
organization has established and, in cases where there are 'clear grounds' for sus-
pecting that 'serious violations' have occurred, the vessel might be taken to the
nearest appropriate port-though it should be noted that in both cases enforcement
action against the vessel can only be taken by the flag State or with the flag State's
consent.
Once again, it is possible to see in this how the international community is striving
to address a complex problem by incremental diminutions in the freedom of the
high seas in favour of communal responses, backed by equally incremental incursions
into the principle of flag State jurisdiction. However, this is entirely dependent upon
States choosing to fetter themselves in this way and many remain reluctant to do so
whilst others remain free to take advantage of their self-restraint.44
43 See Davies and Redgwell, 1996; Orrego-Vicuna, 1999, chs 5-9 and the illuminating collection of essays
in Stokke, 200!.
44 The sse entered into force in December 2001, having secured thirty ratifications. At the time of writing
there are thirty-three States parties.
 MALCOLM D EVANS
THE LAW OF THE SEA

DAVIES, PGG (1995), 'The EC/Canadian International Law (Oxford: Clarendon

VIII. CONCLUSION Fisheries Dispute in the Northwest Press).
Atlantic', 44 ICLQ 933. MARSTON, G (2002), 'Redrawing the Terri-
There are a great many important topics that have not been touched upon in this - - and REDGWELL, C (1996), 'The Inter- torial Sea Boundary in the Firth of Clyde',
chapter, including, inter alia, marine scientific research, pollution and the marine national Legal Regulation of Straddling 51 ICLQ279.
environment, military uses of the seas, and the dispute settlement provisions of the Fish Stocks', 67 BYIL 199.
NANDAN, SM and ANDERSON DH (1989),
LOSe. Although a number of these topics are touched on elsewhere in this volume, DE LAFAYETTE, L (1999), 'The Fisheries 'Straits Used for International Naviga-
these omissions remain regrettable. However, by focusing in some detail on some Jurisdiction Case (Spain v Canada)', 48 tion', 90 BYIL 159.
foundational aspects of the division of ocean space and its principles of governance, ICLQ664.
O'CONNELL, DP (1982), The International
this chapter introduces the complexities that must be grappled with and the manner DE YTURRIAGA, JA (1991), Straights Used Law of the Sea, vol I (Oxford: Clarendon
in which this has been attempted. The underlying tension remains the same as ever: for International Navigation (Dordrecht: Press).
balancing the competing demands of access to ocean space whilst recognizing the Martinus Nijhoff).
ORREGO-VICUNA, F (1989), The Exclusive
need to preserve order and good governance. The law of the sea has undergone a EDESON, W (1999), 'Towards Long-term Economic Zone (Cambridge: Cambridge
remarkable transformation in the last fifty years yet more still needs to be done if that Sustainable Use: Some Recent Develop- University Press).
balance is to be achieved. Perhaps at the end of the day the problem is the perception, ments in the Legal Regime of Fisheries',
- - (1999), The Changing Law of High
uttered by the leT in the North Sea cases in the context of the delimitation of maritime in Boyle, A and Freestone, D, Inter-
Seas Fisheries (C~bridge: Cambridge
boundaries, that 'the land dominates the sea'.45 We are coming to realize that, in many national Law and Sustainable Develop-
University Press).
ways, it is the sea that dominates the land and, as they are projected seawards, our ment (Oxford: Oxford University Press),
p 165. OZ<;AYIR, ZO (2001), Port State Control
concepts of sovereignty, rights, and jurisdiction, no matter how subtle or sophisticated
(London: LLP Professional Publishing).
their application, seem increasingly cumbersome instruments for addressing the Evans, MD (1989), Relevant Circumstances
and Maritime Delimitation (Oxford: REISMAN, WM and WESTERMAN GS (1992),
resulting issues. But for the moment, we have no others.
Clarendon Press). Straight Baselines in International Mari-
time Boundary Delimitation (London:
- - (1999), 'Maritime Delimitation after
Macmillan).
Denmark v Norway. Back to the Future?',
in Goodwin-Gill, GS and Talmon, S, The SCHACHTE, WL (1993), 'International
REFERENCES Reality of International Law (Oxford: Straits and Navigational Freedoms', 24
Clarendon Press). ODIL 179.
AHNISH, FA (1993), The International Law of ATTARD, D (1986), The Exclusive Economic SCHMIDT, M (1989), Common Heritage or
GILMORE, W (1995), 'Hot Pursuit: The
Maritime Boundaries and the Practice of Zone (Oxford: Clarendon Press). Case of R v Mills and Others', 44 ICLQ Common Burden? (Oxford: Clarendon
States in the Mediterranean Sea (Oxford: BOYLE, A (2001), 'The Southern Bluefin 949. Press).
Clarendon Press). Tuna Arbitration', 50 ICLQ 447. - - (2000), 'Drugs Trafficking at Sea: The STOKKE, OV (ed.) (2001), Governing High
ANAND, RM (1983), Origin and Develop- Case of R v Charrington and Others', 49 Seas Fisheries (Oxford: Oxford University
CHARNEY, J (2000), 'Rocks that cannot
ment of the Law of the Sea (The Hague: ICLQ477 Press).
sustain Human Habitation', 96 AJIL 863.
Martinus Nijhoff).
CHURCHILL, RR (2000), The Southern HUTCHINSON, D (1985), 'The Seawards VASCIANNIE, SC (1990), Land-Locked and
ANDERSON, DH (1993), 'Efforts to Ensure Limit to Continental Shelf Jurisdiction in Geographically Disadvantaged States in the
Bluefin Tuna Cases', 49 ICLQ 979.
Universal Participation in the UN Customary International Law', 56 BYIL Law of the Sea (Oxford: Clarendon Press).
Convention on the Law of the Sea', 42 - - and LOWE, AV (1999), The Law of the
133. WElL, P (1989), The Law of Maritime
ICLQ654. Sea, 3rd edn (Manchester: Manchester
University Press). JAYAWARDENE, H (1990), The Regime of Delimitation-Reflections (Cambridge:
- - (1995), 'Legal Implication of the Islands in International Law (Dordrecht: Grotius Publications).
Entry into Force of the UN Convention COOK, PJ and CARLTON, C (2000), Contin- Martinus Nijhoff).
on the Law of the Sea', 44 ICLQ ental Shelf Limits (Oxford: Oxford Uni- WESTERMAN, G (1987), The Juridical Bay
JIA, BB (1998), The Regime of Straits in (Oxford: Clarendon Press).
313. versity Press).

45 North Sea Continental Shelf, Judgment, IC! Reports 1969, p 3, para 96.
 MALCOLM D EVANS
FURTHER READING
CHARNEY, JI and ALEXANDER, LM (eds),
Maritime Boundary Agreements, vol I
(1993), vol II (1993), vol III (1998), vol IV
(2002) (The Hague: Martinus Nijhoff).
A compendium of State practice, with
commentaries and an excellent series of
essays relating to boundary delimitation.
CHURCHILL, RR and LOWE, AV (1999), The
Law of the Sea, 3rd edn (Manchester:
Manchester University Press). This is the
essential vade mecum to the subject and
has no rival.
NORDQUIST, MN et al., United Nations
Convention on the Law of the Sea 1982:
A Commentary, vol I (1985), vol II
(1993), vol III (1995), vol IV (1990),
vol V (1989), vol VI (2002) (The
Hague: Martinus Nijhoff). This is an
excellent source of reference, tracing
and commenting upon the evolution
of each Article of 1982 Law of the Sea
Convention.
O'CONNELL, DP, The International Law of
the Sea, vol I (1982), vol II (1984)
(Oxford: Clarendon Press). Although
now considerably out of date, this
remains a classic and magisterial point of
reference.
ORREGO-VICUNA, F (1999), The Changing
Law of High Seas Fisheries (Cambridge:
Cambridge University Press). A thought
provoking presentation and analysis of
current trends.
STOKKE, OV (ed.) (2001), Governing High
Seas Fisheries (Oxford: Oxford University
Press). This is an excellent collection of
essays probing aspects of high seas fishing
in depth.
21
INTERNATIONAL
ENVIRONMENTAL LAW
Catherine Redgwell
SUMMARY
The development of international environmental law is typically divided into three periods.
The first demonstrates little genuine environmental awareness but rather views environ-
mental benefits as incidental to largely economic concerns such as the exploitation of
living natural resources. The second phase demonstrates a significant rise in the number of
treaties directed to pollution abatement and to species anq habitat conservation. Here
an overt environmental focus is evident, yet the approach is still largely reactive and
piecemeal. The final phase, which characterizes current international environmental law,
demonstrates a precautionary approach to environmental problems of global magnitude
such as biodiversity conservation and climate change. Concern transcends individual
States, with certain global problems now considered the common concern of humankind.
This chapter first defines international environmental law, its key sources and actors,
and the difficulties of enforcement, before embarking on a sectoral examination of the
extensive treaty law applicable in this field.
1. INTRODUCTION: WHAT IS INTERNATIONAL
ENVIRONMENTAL LAW?
This chapter is concerned to address one of the more recent areas of development
in international law, international environmental law. It is a discrete area of public
international law marked by the application of principles which have evolved in
the environmental context, such as the precautionary and no harm principles, yet
also forms part of, and draws from, the general corpus of public international
law elaborated elsewhere in this text such as the sources of public international law
principles of the exercise of State jurisdiction, and State responsibility. It is thus part
 CATHERINE REDGWELL
and parcel of general public international law and not an entirely separate, self-
contained discipline (Birnie and Boyle, 2002, pi). In this sense it is analogous to, say,
international human rights law, the law of the sea, or international economic law.
Institutionally it is less well-developed than these fields: there a no (global environ-
mental organization' with competence over environmental matter analogous to, say,
the World Trade Organization, nor a dispute settlement body analogous to the WTO's
Dispute Settlement Body or the Law of the Sea Convention's International Tribunal
for the Law of the Sea.
Moreover, notwithstanding significant growth in the body of general and particu-
larized rules governing State conduct in respect of the environment, it remains the
case that there is not yet any general customary or treaty law obligation on States to
protect and preserve the environment per se. To be sure there is a relevant negative
obligation found in customary international law-the no harm principle, or the
obligation imposed on States not to allow their territory to be used in a such a manner
so as to cause harm to the territory of other States, or to the global commons, which
may be traced back to the seminal Trail Smelter Arbitration. 1 Positive obligations,
however, remain largely sectoral in focus, the most outstanding examples being the
obligation in Article 192 of the 1982 Law of the Sea Convention to protect and
preserve the marine environment and the obligation in Article 2 of the 1991 Protocol
on Environmental Protection to the 1959 Antarctic Treaty comprehensively to protect
the Antarctic environment and dependent and related ecosystems. But as for a general
obligation to protect and preserve the environment wherever situated, one looks in
vain. This is partly explained by the piecemeal development of the subject, elaborated
in the next section. Early international regulation of environmental activities dealt
with conservation of common property resources subject to over-exploitation and
customary international law first developed to restrain State actions causing trans-
boundary harm-primarily economic harm-in the territory of another State.
International environmental regulation of State behaviour penetrating within the
State has been less rapid to develop, particularly since it encounters the twin yet
related obstacles of State sovereignty and permanent sovereignty over natural
resources. 2 This is one of the challenges which faces international environmental law
in the twenty-first century, namely, seeking an holistic approach to environmental
regulation which applies within as well as between and beyond States. The 1992
Convention on Biological Diversity is one example of a treaty instrument moving in
this direction.
1 (1939) 33 AlIL 182 and (1941) 35 AlIL 684; see also Principle 21 of the 1972 Declaration of the United
Nations Conference on the Human Environment (Stockholm) and Principle 2 of the 1992 Declaration
of the UN Conference on Environment and Development (Rio) reproduced in Birnie and Boyle, 1995,
at pp 1 and 9 respectively.
2 For discussion of why the environment is protected, see Gillespie, 1997.
INTERNATIONAL ENVIRONMENTAL LAW
II. DEFINING (THE ENVIRONMENT'
'The environment' is an amorphous term that has thus far proved incapable of precise
legal definition save in particular contexts. Even the Law of the Sea Convention, which
comprehensively defines pollution of the marine environment, does not define the
marine environment as such. A rare exception is Article 2(10) of the 1993 Council
of Europe Convention on Civil Liability for Damage Resulting from Activities
Dangerous for the Environment. It defines the environment to include 'natural
resources both abiotic and biotic, such as the air, water, soil, fauna and flora and the
interaction between the same factors; property which forms part of the cultural
heritage; and the characteristic aspects of the landscape'. This broad definition
encompasses natural and cultural heritage protection (regulated by the 1972
UNESCO Convention for the Protection of the World Cultural and Natural Heritage
for example); species and habitat protection (see, for example, the 1992 United
Nations Convention on Biological Diversity); and pollution prevention (regulated,
inter alia, by the 1972 London (Dumping) Convention and the 1979 UN ECE
Convention on Long-Range Transboundary Air Pollution). As will be seen shortly,
this in fact encapsulates the development of international environmental law, espe-
cially treaty law, in the field of the environment: sectoral pollution and conservation
treaties; ecosystem and holistic environmental protection; and issues of liability and
compensation.
III. THE DEVELOPMENT OF INTERNATIONAL
ENVIRONMENTAL LAW
Although the origins of international environmental regulation may be traced to
the nineteenth century, the modern development of the subject dates from the post-
World War II era. Indeed, the development of international environmental law
shares much in common with the development of domestic environmental law which
arose concomitantly with concerns about environmental degradation highlighted
especially in the 1960s. A turning point was undoubtedly the United Nations-
sponsored 1972 Stockholm Conference on the Human Environment which produced
a non-binding Declaration of Principles and a Programme for Action. Subsequently
not only did national departments of environmental proliferate, but the United
Nations established a specialized subsidiary body of the UN General Assembly, the
United Nations Environment Programme (UNEP), headquartered in Nairobi. Today
UNEP remains the only international body exclusively concerned with environmental
matters, although many other specialized bodies within the United Nations family
concern themselves with environmental matters as part of their broader remit-the
660 CATHERINE REDGWELL
Food and Agriculture Organization (FAO) in Rome and the International Maritime
Organization (IMO) in London, for example.
The United Nations General Assembly has also played a significant role in shaping
international environmental law and policy notwithstanding the absence of any
mention of the environment in the UN Charter. Undoubtedly dynamic interpretation
of the Charter-especially of Articles 1 and 55-and the implied powers approach
adopted by the ICJ in the Reparations case3 would support reading environmental
matters into the competence of the UN. The establishment of UNEP following the
Stockholm Conference in 1972, and of the UN Commission on Sustainable Develop-
ment4 following the 1992 Rio Conference on Environment and Development, is ample
testament to the suppleness of the Charter treaty text. Today a number of significant
global treaties has resulted from UN auspices, including the 1992 Conventions on
Climate Change and the Conservation of Biological Diversity. The UN has also played
a significant role in regional developments through, for example, the regional seas
programme of UNEP and the UN's economic commissions. The UN Economic
Commission for Europe (ECE) has been particularly active in the environmental field
and is responsible for two significant procedural treaties addressing environmental
impact assessment (the 1991 Espoo Convention on Environmental Assessment in a
Transboundary Context) and access to environmental information, public partici-
pation, and access to justice (the 1998 Aarhus Convention on Access to Information,
Public Participation in Environmental Decision-Making, and Access to Justice in
Environmental Matters) as well as for sectoral pollution regulation (the 1979
Convention on Long-Range Transboundary Air Pollution).
It is common to divide the development of international environmental law into
three (Francioni, 1994) or four (Sands, 1995; Fitzmaurice, 2001) stages. The first
pre-dates the 1972 Stockholm Conference and is characterized by piecemeal and
reactive responses to particular problems of resource use and exploitation (eg, the
1946 International Convention for the Regulation of Whaling), including shared
resources (eg, the 1909 Treaty Between the United States and Great Britain Respecting
Boundary Waters Between the United States and Canada), and pollution (eg, the
1954 International Convention for the Prevention of Pollution of the Sea by Oil).
Some writers sub-divide this first stage into two, commencing the second stage with
the creation of international institutions from 1945 and seeing its culmination in
the 1972 Stockholm Conference on the Human Environment inaugurating on this
analysis the third phase of development. Certainly the run-up to and conclusion of
the Stockholm Conference stimulated a great deal of regional and global treaty-
making activity, much of it directed towards protection of the marine environment.
The 1972 London (Dumping) Convention dates from this period, as does the regional
seas programme of UNEP which from 1976 onwards has led to the conclusion of a
3 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, Ie! Reports 1949,
p 174.
4 See UN GA Res 47/191 (1992), in Birnie and Boyle, 1995, p 658.
INTERNATIONAL ENVIRONMENTAL LAW 661
number of regional seas agreements including environmental protection provisions.
The terrestrial environment was also the focus of attention, with the conclusion of
major treaties regarding the natural and cultural heritage (the 1972 UNESCO Con-
vention Concerning the Protection of the World Cultural and Natural Heritage),
species and habitat protection (eg, the 1971 Ramsar Convention on Wetlands of
International Importance Especially as Waterfowl Habitat and the 1973 Convention
on International Trade in Endangered Species). With one or two exceptions such
as the 1980 Convention on the Conservation of Antarctic Marine Living Resources
with its novel ecosystem approach, this period of international legislative activity
is characterized by a sectoral and fragmented approach to achieving environmental
protection.
The third (or fourth) period adopts a holistic approach to environmental pro-
tection and seeks to marry such protection with economic development, embraced
in the principle of sustainable development. This was the theme of the 1992 Rio
Conference on Environment and Development which, in addition to producing a
Declaration of Principles and a programme of action for the twenty-first century-
Agenda 21-saw the conclusion of two major treaties under UN auspices, the 1992
Framework Convention on Climate Change and the 1992 Convention on the Con-
servation of Biological Diversity. It was hoped also to. adopt binding texts relating to
forests and to deserts, but in the event only a soft law text on forests was also adopted
(the (Non-Binding Authoritative Statement of Principles for a Global Consensus
on the Management, Conservation and Sustainable Development of all Types of
Forest'). In 1994 the Convention to Combat Desertification was adopted, as was the
International Tropic Timber Agreement (though the latter is largely concerned with
facilitating trade and not with forest biodiversity). In both cases resistance to inter-
national regulation stemmed largely from concerns to preserve State sovereignty.
Nonetheless the general outcome of the Rio Conference, and the conclusion of
the Biodiversity and Climate Change Conventions in particular, marked'a new phase
in international environmental regulation with the acknowledgement in each that
the conservation of biological diversity or preventing further adverse changes in the
earth's climate are the common concern of humankind. Proposals further to develop
the institutional framework of international environmental law to reflect these
common .and intergenerational concerns have not yet made any significant headway.
Suggestions for revamping the UN Trusteeship Council to address global commons
matters has become linked with broader and more vexed issues of UN institutional
reform. The World Summit on Sustainable Development held in Johannesburg in
2002 achieved neither environmental institutional reform nor resulted in significant
multilateral law-making, though making a significant contribution, inter alia, to
developments within the Southern African region. 5
Thus the past decades have witnessed an evolution in law-making focus from
5 See the Johannesburg Declaration on Sustainable Development and Plan of Implementation,
www.johanneburgsummit.org.
662 CATHERINE REDGWELL
environmental regulation incidental to the primary focus, such as economic regula-
tion of a resource, to an holistic approach to environmental protection within
and beyond State borders. These stages are not necessarily sequential, however, with
evidence in the present of international rules reflecting each of these stages of
evolution. This is particularly evident in the tension between permanent sovereignty
over natural resources and the common concern of humankind contained in
the Biodiversity Convention, and in the resistance to international regulation of
forest and desertification issues because of the perceived threat to State sovereignty.
Moreover what is absent from the corpus of international rules thus developed is a
comprehensive codification of the basic rules and principles applicable to inter-
national regulation of the environment analogous to the 1948 Universal Declaration
of Human Rights or the 1982 Law of the Sea Convention. 6
IV. KEY ENVIRONMENTAL ACTORS
The 1992 Rio and 2002 Johannesburg summits evidence a further feature of inter-
national environmental law, which is the increased participation of non-State actors,
in particular non-governmental organizations (NGOs). Witness the range of actors
identified in Section 3 of the Earth's Action Plan agreed at Rio (Agenda 21): women,
youth, indigenous peoples, NGOs, local authorities, workers and trade unions, busi-
ness and industry, the scientific and technological community, and farmers. Of course
this is not a unique feature of the environmental field, though particularly marked
within it (and in the human rights area, as Chapter 24 attests). The role of NGOs
in particular has been significant both in shaping the treaty-negotiating process but
also in stimulating subsequent developments within treaty regimes. Perhaps the out-
standing example is the influence of the International Council for Bird Preservation
(ICBP) and the International Waterfowl and Wetlands Research Bureau (IWRB) in
the conclusion and implementation of the 1971 Ramsar Convention. NGO influence
is achieved primarily through the mechanism of participation, viz as observers in
international organizations, at treaty negotiations, and within treaty institutions. For
example, the meetings of the conference of the parties to the 1992 Climate Change
Convention and its subsidiary bodies provide for the participation of three NGO
representatives to observe and limited scope for active participation. These reflect the
diverse constitutencies of the Convention: business and industry NGOs (principally
the major natural resource companies); environmental NGOs; and local govern-
ment NGOs. These developments may be viewed as a wider trend towards viewing
international society in terms broader than a community of States alone? This
6 One such attempt is the International Union for the Conservation of Nature's Draft International
Covenant on Environment and Development (IUCN, 2nd edn, 2000).
7 See, eg, the Commission on Global Governance, 1995.
INTERNATIONAL ENVIRONMENTAL LAW 663
is recognized in recent environmental treaties such as the Climate Change and Bio-
diversity Conventions, where we have seen that the global climate and biological
diversity respectively are expressly recognized as the common concern of humankind.
However, as yet there is limited participation of non-State actors as treaty parties.
A notable exception is the European Community which possesses international legal
personality coupled with the requisite internal constitutional competence to par-
ticipate in international treaties alongside the member States. Thus, for example, the
EC is a party to the 1992 Climate Change Convention and the 1997 Kyoto Protocol
which expressly provide for the participation of regional economic integration
organizations. Yet it is not a party to CITES, for example, because there the treaty text
does not presently make provision for non-State participation. Thus only the member
States may become parties in their individual capacities. This has not prevented the
EC from regulating trade in endangered species within the European area, but it does
so in the exercise of internal legal competence over the matter and not in furtherance
of an expressly undertaken international obligation.
V. SOURCES OF INTERNATIONAL
ENVIRONMENTAL LAW
Since international environmental law is concerned with the application of general
international law to environmental problems, it is not surprising that its sources
include the traditional ones enumerated in Article 38 of the Statute of the Inter-
national Court of Justice. However, two points should be highlighted in this context.
The first is that treaties are by far and away the most significant source of binding
rules of international environmental law. The adoption of consensus and 'package-
deal' approaches to treaty negotiation have been particularly beneficial in the
environmental context, permitting States to reach agreement on issues such as trans-
boundary air pollution, climate change, and the conservation of biological diversity,
even in the face of sharp differences of view about the very existence of the problems
and about their solution. Sometimes environmental treaties are preceded by a non-
binding instrument ('soft law')-for example, the UNEP Guidelines which preceded
the 1989 Basel Convention and the UNEP and FAO Guidelines and Code which
preceded the 1998 Rotterdam Convention on Prior Informed Consent. Indeed, the
prevalence and importance of 'soft law' is the other feature of international environ-
mental law meriting closer attention. Soft law may be employed because its origins are
not law-creating either because the body promulgating the 'law' does not have law-
making authority (eg, an autonomous treaty supervisory body or an NGO) or
because a law-making body chooses a non-binding instrument with which to
embody a statement of particular principles (eg, States at the 1992 Rio
Conference on Environment and Development adopting the binding 1992 Climate
 CATHERINE REDGWELL
Change Convention and the non-binding 1992 Rio Declaration of Principles on
Environment and Sustainable Development).8
A. CUSTOMARY INTERNATIONAL LAW
While the vast majority of the rights and obligations of States with respect to the
environment derive from voluntarily assumed treaty obligations, it would be mis-
leading to suggest that no customary international law norms govern State conduct.
State practice has given rise to a number of customary law principles, buttressed
by the process of treaty and customary law interaction noted in Chapter 4. Of these
the most significant is the 'good neighbour' or 'no harm' principle, pursuant to which
States have a duty to prevent, reduce, and control pollution and transboundary
environmental harm. It has been enunciated in judicial decisions as well as soft
law declarations. State practice further supports the customary law obligation to
consult and to notify of potential transboundary harm. Other relevant principles
of customary international law include the polluter pays principle, the principle of
preventive action, and equitable utilization of shared resources. Emerging norms
of customary law may be observed in the precautionary principle and in aspects
of sustainable development (the principle of sustainable use; intergenerational
equity; integration of the environment into economic and development projects;
and common but differentiated responsibilities) (Paradell-Trius, 2000).
B. TREATY LAW
The vast bulk of environmental law is contained in treaty texts which are given
dynamic force in part because they usually provide an institutional mechanism for
their implementation (Churchill and Ulfstein, 2000). A common format is to provide
for regular meetings of the Conference of the Parties (COP), a number of subsidiary
Committees reporting to the COP, most commonly comprising at least a Committee
for Scientific and Technical Advice, and a Secretariat to provide support at and
between meetings of these bodies. The dynamic force of many environmental treaties
derives from the need to respond to changes in the physical environment regulated
thereby and is most generally effected through the COP via a subsidiary scientific
body. A significant number of environmental treaties adopt a framework approach to
facilitate more rapid change than is generally the case through the normal (and time-
consuming)· process of treaty amendment. This approach enables the treaty to con-
tain general principles and set forth the organizational structure of the treaty bodies,
whilst further protocols and/or annexes embody specific standards and are generally
subject to a more flexible amendment process.
An excellent example of a framework treaty is the regional 1979 ECE Convention
8 On environmental treaty-making, see Redgwell, 2000; on the interaction of treaty and soft law see Boyle,
1999.
INTERNATIONAL ENVIRONMENTAL LAW 665
on Long-Range Transboundary Air Pollution, now accompanied by eight protocols;
the 1992 United Nations Framework Convention on Climate Change, now accom-
panied by the 1997 Kyoto Protocol, is another good example at the global leveL
More flexible amendment procedures were pioneered by the International Maritime
Organization with the use of the 'tacit amendment procedure' with its 1973178
Convention for the Prevention of Pollution from Ships (MARPOL), to which there
are now six annexes. Changes to the annexes come into force for all contracting
parties within a minimum of sixteen months of adoption of the change unless
objection is lodged within a certain time period (ten months) by one-third of
the contracting parties or by the number of contracting parties whose combined
merchant shipping fleets represent at least 50% of world gross tonnage. A more recent
and further example of this framework approach is the 1992 Convention for the
Protection of the Environment of the North-East Atlantic COSPAR), where the
convention is accompanied by five annexes and two appendices, with the latter
embodying matters exclusively of a technical, scientific, or administrative nature.
Both appendices and annexes are more readily amended and modified than the
Convention text itself, thus permitting the Convention more readily to grow and
adapt to changing scientific and other data.
Further flexibility is found in recent treaty texts that allow for differentiation
in the implementation obligations for States taking on treaty commitments. For
example, the Climate Change Convention recognizes the common but differentiated
responsibilities and respective capabilities of States in implementing the obligation
to protect and preserve the climate system for the benefit of present and future
generations (Article 3(1)). Developed country parties 'should take the lead in
combating climate change and the adverse effects thereof'; indeed, under the Kyoto
Protocol it is only Annex I parties (developed country parties) which are subject to
specific targets and timetables for greenhouse gas emission reductions. In similar
vein a number of the substantive treaty obligations of States party to the 1992 United
Nations Convention on Biological Diversity are qualified by the words 'in accordance
with [each contracting party's] particular conditions and capabilities'.
VI. ENFORCEMENT OF INTERNATIONAL
ENVIRONMENTAL LAW
A question of over-arching importance is what happens in the event of the breach of
an environmental obligation?9 Here the traditional rules regarding State responsibil-
ity, explored in more depth in Chapter 14, would apply. Yet these rules are of only
limited assistance in the environmental field for two reasons. The first is the generally
9 See the contributions to the edited volume by Francioni and Scovazzi, 1991; Wetterstein, 1997; and
Wolfrum, 1999.
666 CATHERINE REDGWELL
non-reciprocal character of international environmental obligations which render it
difficult to meet the requirement of breach of an obligation owed to another State.
Bo.th the Trail Smelter Arbitration between the United States and Canada10 and the
GabCikovo-Nagymaros Dam dispute between Hungary and Slovakial l saw the applica-
tion of traditional rules on State responsibility because of the bilateral character of the
dispute and of the obligations thereunder. Had it proceeded to the merits, the ICJ case
brought in 1974 against France by Australia and New Zealand regarding French
atmospheric nuclear testing in the South Pacific would have likewise largely fit within
this bilateral model. 12 But what of the example of a breach by a State of its obligation
to conserve biological diversity, expressly acknowledged as 'the common concern of
humankind'? A complainant State is required to show that the obligation is owed to it
and (usually) that injury has resulted to it in order for standing requirements to be
satisfied; there is no such thing (yet) under international law as an actio popularis
whereby a State may bring an action on behalf of the international community. 13
There are glimmerings of such an approach in the recent work of the International
Law Commission on State Responsibility, wherein the possibility exists for a State
party to a multilateral treaty to complain of breach of a multilateral obligation by
another State party14 but the status of these provisions remains de lege ferenda.
There are several consequences of the inadequacies of traditional rules of State
responsibility for the development of international environmental law. The first is-a
relative paucity of cases at the international level in which environmental matters have
figured largely. The second has been pressure further to develop the rules of State
responsibility, including standing, alluded to above in the recent work of the Inter-
national Law Commission on State responsibility. The third is the development
of alternatives to traditional dispute settlement techniques under specific treaty
instruments directly to address the issue of non-compliance with treaty obligations
from both a facilitative and a coercive point of view. The 1987 Montreal Protocol is
pioneering in this regard, establishing the first non-compliance procedure in an
environmental agreement. A handful of other treaty instruments now contemplate
the establishment of a non-compliance procedure, including the 1997 Kyoto Protocol
to the 1992 Framework Convention on Climate Change and the 2000 Cartagena
Protocol to the 1992 Convention on the Conservation of Biological Diversity.
These exist alongside traditional dispute settlement clauses and are suspended in
the event of the invocation of traditional dispute settlement procedures (Fitzmaurice
and Redgwell, 2000). i In any case, it is rare for international environmental treaties
to provide for compulsory third-party settlement of inter-State claims (Brus, 1995).
10 (1939) 33 AJIL 182 and (1941) 35 AJIL 684.
11 Gablikovo-Nagymaros project (Hungary/Slovakia), Judgment, IeJ Reports 1997, p 7.
12 Nuclear Tests (Australia v France), Interim Protection, Order of 22 June 1973, IeJ Reports 1973,
p 99; Judgment, IeJ Report 1994, p 253; Nuclear Tests (New Zealand v France), Interim Protection, Order of
22 June 1973, IeJ Reports 1973, p 135; Judgment, IeJ Report 1994, p 457.
13 South West Africa, Second Phase, Judgment, IeJ Reports 1966, p 6.
14 2001 Articles on State Responsibility, Article 48; for analysis see Peel, 2001.
INTERNATIONAL ENVIRONMENTAL LAW
Sparse examples include the Ozone Layer Convention and the Montreal Protocol,
and the FCCC and the Kyoto Protocol. Even when provided for their invocation
is infrequent, a rare example being the recent invocation of the dispute settlement
procedures of the 1982 LOSC by Ireland against the United Kingdom in connection
with radiological pollution from the MOX plant (2001).15 Even rarer still is to pro-
vide for reciprocal standing for non-State actors. An oft-cited example is the 1974
Nordic Environmental Protection Convention, Article 3 of which addresses access to
justice for non-State actors; the 1998 Aarhus Convention may well stimulate further
developments in this area. 16 Finally, a further consequence of the inadequacies of
State responsibility in the environmental field is the development of liability regimes
which side-step the necessity to rely on the route of inter-State claims. As we will see,
the development of specific liability instruments has been particularly marked in the
field of hazardous activities with transboundary consequences (eg, nuclear activities,
vessel source oil pollution, and hazardous waste movements) and in the protection of
common spaces (eg, negotiations for a liability protocol to the 1991 Environmental
Protocol to the 1959 Antarctic Treaty, and in respect of deep seabed mining under the
1982 LOSC).
VII. SUBSTANTIVE INTERNATIONAL
ENVIRONMENTAL LAW
From the foregoing it will already be apparent that there exists a considerable body of
international rules applicable to environmental protection. The breadth of regulatory
activity is enormous, ranging from liability and compensation for oil pollution
damage through to licensing regimes for the transboundary movement of hazardous
waste and the listing of sites important for wild birds or for the natural and cultural
heritage. The purpose of this section is to provide a flavour of the breadth and depth
of international law pertaining to the environment.
A. PROTECTION OF THE MARINE ENVIRONMENT]7
The protection of the marine environment was one of the key issues at the 1972
Stockholm Conference, and is clearly reflected in the flurry oflaw-making in this area
which occurred in the early 1970s in particular. The negotiation of the 1982 LOSC,
which commenced in 1973, likewise had an influence upon (and was influenced by)
15 See www.itlos.org for the provisional measures order of 3 December 2001 in Annex VII arbitra-
tion initiated by Ireland against the United Kingdom in The MOX Plant ease (Ireland v United Kingdom).
16 For current analysis of the Convention see Davies, 2002; on public participation see generally Ebbesson,
1997.
17 For succinct treatment of the extensive law in this area, see Churchill and Lowe, 1999, ch 15.
668 CATHERINE REDGWELL
both these antecedent and parallel developments. Thus Part XII of the resulting
1982 Convention-with its forty-six Articles devoted to the marine environment-
implicitly acknowledges existing marine environment treaties in the areas of dumping
at sea and vessel source pollution in particular. Pollution of the oceans, and concerns
about their limited absorption capacity, formed a key thrust of these 1970s law-
making activities: both the global 1972 London (Dumping) Convention and the
regional 1972 Oslo Dumping Convention date from this period, as does the 1973
Convention on the Prevention of Pollution from Ships (MARPOL 73/78). UNEP,
established it will be recalled after the Stockholm Conference, undertook the
establishment of regional seas programmes for which the 1976 Barcelona Convention
for the Protection of the Mediterranean Sea Against Pollution, and subsequent
protocols, formed the prototype for many other regional seas areas (only the Baltic,
the North-east Atlantic/North Sea, Antarctic, and Arctic oceans, are regulated by
regional instruments outside UNEP's programme). The Protocols to the Barcelona
Convention range in subject matter from pollution caused by dumping, land-based
sources, and seabed activities, to cooperation in emergencies, specially protected
areas, and transboundary movement of hazardous waste. The convention was sub-
stantially revised in 1995 following the Rio Conference, the impact of which is
observable in many other areas of regulatory activity where such 'second generation
agreements' have been adopted.
Dumping is one such area of regulatory activity. Initially the dumping conventions
adopted the regulatory approach of listing prohibited, dangerous, and other sub-
stances, relying on nationally-implemented licensing schemes for their effectiveness.
Coastal States exercised the jurisdiction afforded them under international law to
do so: territoriality and nationality (of the vessel). There was no presumptive ban
operating in respect of dumping at sea, with the regulatory approach essentially one
of viewing dumping as 'permitted unless prohibited'. Wastes were divided into three
categories: Annex I, the 'black list', contained a list of substances prohibited from
dumping; Annex II, the 'grey list', those substances the dumping of which required a
prior special permit; for all other substances, Annex III (the 'white list') required a
prior general permit. However, with the replacement of the 1972 Oslo Convention
(and 1974 Paris Convention for the Prevention of Marine Pollution from Land-Based
Sources) by the 1992 Convention on the Protection of the Marine Environment of the
North-east Atlantic (OSPAR) and the negotiation of the 1996 Protocol to the 1972
London Convention (not yet in force), this philosophy has been replaced by a 'pro-
hibited unless permitted' approach. Dumping is not permitted unless if falls within
one of the permitted exceptions to a general ban on dumping. The list is quite
restrictive, including bulky matter such a dredged material and sewage sludge and (at
least for the moment) offshore installations. The precautionary approach is very
much in evidence here, with a significant shift in the burden of proof to the polluter
to demonstrate that dumping at sea will not have significant harmful consequences
for the marine environment.
Vessel source pollution, though a relatively minor contributor to marine pollution,
INTERNATIONAL ENVIRONMENTAL LAW
has nonetheless been subject to extensive international regulation following highly
publicized oil spills such as the Torrey Canyon in 1967. MARPOL 73/78 adopts
a framework approach in that six accompanying annexes embody the technical
details of regulating oil discharges (Annex I), noxious liquids in bulk (Annex II),
harmful packaged substances (Annex III), sewage (Annex N), garbage (Annex V),
and air pollution (Annex VI). Any State wishing to become a party to MARPOL 73/78
must also adopt Annexes I and II as a minimum. Annex I reflects a particular pre-
occupation with vessel-source oil pollution, focusing on limiting discharges of oil
as part of routine tanker operations. It sets forth oil discharge and tanker design
criteria18 and requires coastal States to provide adequate reception facilities for oily
residues. Some maritime areas have been designated as 'special areas' under MARPOL
in which no discharge is permitted, including areas such as the North-west Atlantic
and Mediterranean areas, and the Antarctic.
A k~y regulatory device under MARPOL is the use of standardized International
Oil Pollution Prevention Certificates, the issuance of which is linked to regular survey-
ing and inspection of vessels. This is supplemented by a requirement for tankers and
other ships to carry an Oil Record Book itemizing all operations involving oil.
In addition to the requirement that this record may be inspected by any other party
to MARPOL, it is these documents which in certain circumstances coastal and port
States are entitled to inspect under the 1982 LOSC, whether or not a party to
MARPOL. 19 Coastal States enforcement powers are also enhanced under the 1982
LOSC, including the power to investigate, inspect, and, in limited circumstances, to
arrest vessels navigating in the EEZ when a violation of applicable international rules
and standards for the prevention, reduction, and control of pollution from vessels,
eg, MARPOL 73/78, has occurred which threatens or causes environmental damage. 2o
Thus MARPOL 73/78, like the other marine pollution conventions, relies on general
public international law and the Law of the Sea Convention in particular for the
exercise of legislative and enforcement jurisdiction. As Chapter 20 makes clear, the
LOSC constitutes a significant innovation in the development of port State enforce-
ment jurisdiction upon which the success of MARPOL 73/78 has largely rested.
Improved exercise of flag State jurisdiction has likewise had beneficial impact on the
number of pollution incidents at sea.
Apart from prompting the regulation of marine pollution through routine
operational discharges at sea, the oil tanker catastrophes of the 1960s and 1970s in
particular led to the development of separate liability conventions, the 1969 Con-
vention on Civil Liability for Oil Pollution Damage (CLC) and the 1971 Convention
on the Establishment of an International Fund for Compensation for Oil Pollution
Damage (Fund Convention). These follow a pattern found in the nuclear civil liability
18 Thus constituting the 'generally accepted international rules or standards' which coastal States may
apply to third party shipping traversing the territorial sea fully in accordance with LOSe Article 21(2).
19 Article 218 LOSe.
20 Article 220, especially paras (3), (5), and (6).
 CATHERINE REDGWELL
conventions, which is to limit and to channel liability. Risk is assumed by, and
liability is channelled through, the shipowner, who is strictly liable for oil pollution
damage as defined under the Conventions. A monetary ceiling on liability is fixed,
enabling the shipowner to obtain insurance cover in the market through P & I Clubs.
If this ceiling is exceeded under the CLC, then the Fund Convention may provide a
further source of compensation funds for claimants. The Fund is based on levies
from oil-importing countries, thus spreading the risk between the shipowner aiLd the
risk-creating State(s). The advantage for claimants in States party to the CLC/Fund
regime is the ability to obtain compensation swiftly without recourse to the courts
in their own or another State. Both Conventions were updated by Protocols in
1992 with a raise in the compensation limits, an extension of geographic coverage
(to incidents in the EEZ) and the inclusion of pollution prevention costs in the
- recoverable heads of damage.
Further responses to catastrophic oil spills are reflected in the 1969 Convention
Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties-which
permits the coastal State to intervene beyond its territorial sea (an extension of
the general jurisdiction principle of protection)-and the 1990 Oil Pollution Pre-
paredness and Response Convention which requires, inter alia, the preparation of
emergency response plans for oil spill incidents. These were international legislative
responses to the 1967 Torrey Canyon and 1989 Exxon Valdez oil spill emergencies
respectively. In 1973 the Intervention Convention was extended to apply to hazardous
substances other than oil.
B. PROTECTION OF THE ATMOSPHERE
There are three principle areas of international regulatory activity in respect of
protection of the atmosphere-transboundary air pollution, ozone depletion, and
global warming. All share a transboundary or global dimension and in no case
are the existing rules of customary law, including those on State responsibility,
adequate to address the problem. In particular the persistence, scope, and inter-
temporal nature of environmental problems such as global warming necessitates
global (preventative) action. A classic case for international regulation then. Yet in
the case particularly of transboundary air pollution and of global warming, there
was (and in the case of the latter, still is) scepticism regarding the existence and scope
of the problem.
1. Transboundary air pollution 21
The Trail Smelter arbitration referred to above was an early instance of an inter-State
claim arising in respect of the harmful transboundary effects of air borne pollutants.
Yet this case involved a single detectable source of air pollution (sulphur dioxide
emissions from the smelter) causing quantified harm to health and property.
21 See generally Okowa, 2000.
INTERNATIONAL ENVIRONMENTAL LAW 671
What if the sources of air pollution are far more diffuse and its harmful effects upon
the environment are widespread? These were the difficulties confronting States in
negotiating the 1979 LRTAP Convention, added to which was the initial scepticism
of some parties as to the very existence and nature of the problem. In fact it remains
the only major regional agreement addressed to air pollution, a reflection both of
the severity of the problem in Europe (Canada and the US are also parties) and the
difficulty in achieving international regulation of an activity impacting on sovereign
energy and other choices.
The purpose of LRTAP is to prevent, reduce, and control transboundary air
pollution from both new and existing sources. 'Air pollution' is defined in terms
reminiscent of the marine pollution definition of the 1982 LOSC, and includes harm
to living resources, ecosystems, and interference with amenities and legitimate uses
of the environment. 'Long-range transboundary air pollution' is defined as adverse
effects in the jurisdiction of one State resulting from emissions originating in the
jurisdiction of another State yet the individual source of which cannot necessarily be
distinguished. The framework character of LRTAP resulted in the absence of specific
reduction targets in the treaty itself; rather, an environmental monitoring programme
was first put in place to gather data to assess the extent of the problem, followed by the
negotiation of specific protocols to reduce emissions of specific air pollutants. In this
respect the LRTAP Convention is a good example of the interaction of monitoring
and reporting obligations on the one hand and flexible treaty structures, easily
adapted to changes in scientific knowledge, on the other. The framework approach of
the Convention has allowed a step-by-step approach by States allowing 'agreement' at
the outset even where there is no consensus regarding the concrete steps to be taken to
address a particular environmental problem. To date eight protocols on monitoring
and on specific air pollutants with specific reduction targets and timetables 22 have been
added to the initial framework convention, significantly expanding the scope of the
parties' commitments. Although there are provisions on notification and consultation
in cases of significant risk of transboundary pollution, LRTAP does not itself con-
tain provisions on liability nor on compliance. But in 1994 a second sulphur protocol
was adopted with a non-compliance procedure based on the experience of the 1987
Montreal Protocol to the Ozone Convention.
2. Ozone depletion
It was UNEP which in 1981 launched negotiations for the conclusion of a treaty to
protect the ozone layer, culminating in the adoption of the 1985 Vienna Convention
for the Protection of the Ozone Layer (Yoshida, 2001). Like LRTAP, the initial treaty
contained little by way of substantive obligations, focusing rather on the need to assess
the causes and effects of ozone depletion and cooperation in the exchange of relevant
information and technology. This 'largely empty framework' treaty was a result of the
diverg€nt interests of States: the US, having taken steps for domestic reduction, was
22 For texts see www.unece.orglenv/lrtap.
 CATHERINE REDGWELL
concerned to ensure a level playing field in respect of ozone-depleting substances
regulation; developing States were concerned to ensure that any restraints on the use
of such substances did not adversely affect industrial development and that if
imposed, appropriate access to alternative technology would be assured; while the EC,
where many producers were located, was concerned regarding the potential cost of
steps to be taken and unconvinced of the scientific case for the harmful effects of the
substances (Birnie and Boyle, 2002).
The 1987 Montreal Protocol-like the 1997 Kyoto Protocol to the Climate Change
Convention-radically altered this picture in several respects. In addition to intro-
ducing specific targets for the reduction and eventual elimination of ozone-depleting
substances, subsequent amendments of the Protocol have introduced financial (the
Multilateral Fund) and technical incentives to encourage developing country adher-
ence to the Protocol. Implementation and compliance is further secured through the
establishment of a novel non-compliance procedure, a mechanism also found in the
second sulphur protocol to LRTAP indicated above and also in the Kyoto Protocol.
This is a form of 'soft enforcement' designed to address non-compliance by essen-
tially self-implicating States through both facilitation (access to the Multilateral
Fund, provision of technical assistance) and/or s~ction (issuing of cautions, suspen-
sion of Article 5 privilege of implementation delay). In fact compliance by developed
States has been high, and it has been largely former Soviet and East European States
which have experienced difficulties with full compliance largely owing to financial
and technical constraints. Successive amendments have achieved more stringent tar-
gets and timetables and added to the list of ozone-depleting substances such that
recovery of the ozone layer, including the hole above Antarctica, may be expected by
2045.
3. Climate change23
It will be recalled that the 1992 UN Framework Convention on Climate Change
was one of two treaties adopted at the Rio Conference. Negotiations followed upon
recognition by the General Assembly that the atmosphere is 'the common concern of
mankind' and the work of the Intergovernmental Panel on Climate Change (IPCC) in
providing the scientific guidance necessary to regulate the emission of greenhouse
gases on the international level. The principle objective of the Convention is 'stabiliza-
tion of greenhouse gas concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system'. Although framework
in character, the convention contains specific commitments in Article 4 addressed
to all parties and, additionally, specifically to developed country parties. All parties
have the obligation to produce inventories of greenhouse gas sources and sinks, to
formulate national and, where appropriate, regional programmes to reduce global
warming, to cooperate in preparing for adaptation to the impacts of climate change,
and to promote scientific research. Since these obligations are addressed to developing
23 On the Convention see Bodansky, 1993.
INTERNATIONAL ENVIRONMENTAL LAW 673
. as well as developed country parties, the convention qualifies these obligations by
permitting parties to 'tak[e] into account their common but differentiated responsi-
bilities and their specific national and regional development priorities'. No such
qualification is made of the obligations for developed cQuntry parties and other
parties (countries with economies in transition)-the 'Annex l' parties to the con-
vention. For these States, Article 4 sets forth the obligation to develop national
policies and measures to mitigate the adverse effects of climate change indicating that
developed country parties are to take the lead in modifying longer-term trends in
anthropogenic emissions. Detailed reports on such policies are to be provided "with
the aim of returning individually or jointly to their 1990 levels ... of carbon dioxide
and other greenhouse gases not controlled by the Montreal Protocol'. It is also the
responsibility of developed country parties to provide new and additional financial
resources to meet the agreed full costs incurred by developing country parties in
complying with their Convention obligations. The financial mechanism under the
Convention is the Global Environmental Facility, administered jointly by the World
Bank as trustee, UNEP, and the UN Development Programme.
Notwithstanding the obligations contained in Article 4, it was not until the
negotiation of the 1997 Kyoto Protocol that developed country parties committed
themselves to explicit, unambiguous targets and timetables for the reduction of
the chief greenhouse gases and to the development of international mechanisms for
ensuring the fulfilment of these commitments. The core obligation of the Protocol
is contained in Article 3(1) which states that Annex I Parties 'shall, individually
or jointly, ensure that their aggregate anthropocentric carbon dioxide equivalent
emissions' of specific greenhouse gases 'do not exceed their assigned amounts' and
that overall emissions of such parties are reduced 'by at least 5 per cent below 1990
levels in the commitment period 2008-2012'. To ensure its effectiveness the Protocol
will only enter into force when adhered to by fifty-five States including Annex I Parties
representing 55% of that group's 1990 carbon dioxide emissions. Annex I Party
participation was contingent on satisfactory elaboration of the three 'flexibility
mechanisms' in the Protocol for achieving these targets and timetables, namely,
joint implementation (projects between Annex I Parties), the clean development
mechanism (between Annex I and non-Annex 1- parties), and emissions trading. By
COP 8 (2002) significant breakthrough had been achieved in realizing the details of
implementation. A non-compliance procedure has also been established under the
Protocol, based on the Montreal Protocol procedure though not identical with it.24
Although the United States continues to remain outside the Protocol, the announce-
ments by Canada and Russia at the Johannesburg summit in 2002 that they would
adhere will ensure the entry into force of the Protocol in 2003, leaving less than
ten years to achieve the reductions mandated for the first commitment period
(2008-12).
24 For comparison and analysis see Werksman, 1998; see also Fitzmaurice and Redgwell, 2001.
 , CATHERINE RED,GWELL INTERNATIONAL ENVIRONMENTAL LAW

C. NUCLEAR RISKS and regulation of the transboundary movement of such substances. Four instruments
are of particular importance in this area, three of which are of relatively recent origin.
The nuclear sector has been the subject of considerable regulatory activity at the
The 1989 Basel Convention on the Transboundary Movement of Hazardous Wastes
international level. 25 Given that nuclear energy activities are ultrahazardous in
and their Disposal26 was the first to occupy the field, and has had an influence on
character with potentially devastating transboundary implications, this degree of
the scope and application of two other instruments with which it is closely linked,
international regulatory activity is unsurprising. The first international agreements,
namely, the recent 1998 Rotterdam Convention on Prior Informed Consent and
at both global and regional level, were concerned with regulating liability and com-
the 2001 Stockholm Convention on Persistent Organic Pollutants, neither of which
pensation for nuclear damage largely with a view to rendering ~ fledgling energy
are yet in force. Together these three instruments are intended to provide for the
industry commercially viable. They also reflected the generally unsatisfactory nature
environmentally sound management of hazardous chemicals throughout their
of the general customary international law principles in respect of State responsibility,
life-cycle. The fourth instrument, the 2000 Cartagena Protocol to the 1992 Bio-
as well as the magnitude of the potential harm.
diversity Convention, is addressed to the transboundary movement ofliving modified
The 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy,
organisms, on the hazardous character of which there is as yet no international
with its 1963 Protocol, was adopted under the auspices of the Nuclear Energy Agency
consensus.
of the Organization for Economic Cooperation and Development (OECD). It is
designed to elaborate and harmonize legislation relating to third party liability to 1. 1989 Basel Convention on the Transboundary Movement of Hazardous
ensure that compensation is paid for persons suffering nuclear damage, whilst at Wastes and their Disposal27
the same time ensuring that the development and use of nuclear energy remains
The Basel Convention has achieved widespread adherence with over 150 parties,
commercially feasible. Channelling and limiting liability achieves both of these
including significant developing country participation which has been facilitated
aims, with the nuclear operator initially liable, then the State of operation and, finally,
by the early establishment of a Trust Fund and a Technical Cooperation Fund.
all contracting parties. Financial limits for liability, which is strict, are set for each
It is concerned both with regulating the transboundary movement of hazardous
level. There has not yet been a serious test of these provisions within Europe, since
waste and ensuring sound environmental management in respect of its disposal.
the Soviet Union was not a party to the Convention in 1986 (nor is the Russian
This is reflected in the annexes to the convention which address not only the cate-
Federation now) and the Convention does not apply outside convention States. In
gories of waste controlled (Annex I) or requiring special consideration (Annex II)
1988 a Protocol was concluded which links this regional system with the similar global
but seeks to standardize the definitionof-lrazardous characteristics (Annex III),
regime, the 1963 Vienna Convention on Civil Liability for Nuclear Damage.
regulate disposal operations (Annex IV), and ensure adequate information is pro-
Following the Chernobyl accident in 1986, two further international treaties were
vided about hazardous characteristics, etc. (Annex V). There is also provision for
agreed addressed to early notification (1986 Convention on Early Notification of a
arbitration (Annex VI) and, concluded in 1999 but not yet in force, a Protocol on
Nuclear Accident or Radiological Emergency) and to assistance in the event of an
Liability and Compensation for Damage (including environmental damage). The
international nuclear incident (1986 Convention on Assistance in the Case of a
convention affirms the sovereign right of States to prohibit imports of hazardous
Nuclear Accident or Radiological Emergency), both under the auspices of the Inter-
waste and ensures the corresponding export prohibition will be respected by other
national Atomic Energy Agency. The IAEA was also responsible for the 1963 Vienna
States parties. Where trans boundary movement does take place it must be grounded
Convention, and for the more recent 1994 Convention on Nucle~ Safety which
in the prior consent of the importing State (and any transit States), with both
regulates the safe operation ofland-based nuclear power plants. Originally established
importing and exporting States obliged to ensure that waste is managed in an
in 1957 to encourage peaceful development of nuclear power and adherence to
environmentally sound manner. Trade with non-parties is prohibited; moreover
non-proliferation safeguards, the IAEA's more recent activities evidence that health
hazardous waste disposal from OECD to non-OECD countries is now prohibited
and safety issues have increasingly formed a primary focus of its activities.
under the Convention.

D. OTHER HAZARDOUS SUBSTANCES AND ACTIVITIES

Apart from the nuclear sector there has also been considerable regulation of other
hazardous activities and substances, focusing on environmentally sound management 26 Regional regulation is found in the 1991 Bamako Convention on the Import into Africa and the Control
of Transboundary Movement and Management of Hazardous Wastes within Africa and in Protocols to the
Regional Seas Agreements discussed in Section VILA above.
25 For an excellent succinct overview, see Birnie and Boyle, 2002, ch 9. 27 For a thorough analysis see Kummer, 2000.
 CATHERINE REDGWELL
2. 1998 Rotterdam Convention on Prior Informed Consent and the
2001 Stockholm Convention on Persistent Organic Pollutants
The Rotterdam and Stockholm Conventions arose from Chapter 19 of Agenda 21
which highlighted the regulatory gap in respect of substances that are 'toxic, per-
sistent and bio-accumulative and whose use cannot be controlled'. Like the Basel
Convention, soft law guidance in the form of UNEP/FAO Guidelines preceded their
negotiation. The Stockholm Convention addresses environmentally sound manage-
ment of a so-called 'dirty dozen' of toxic substances. The fundamental objective is
the elimination or restriction of production or use of all intentionally produced
persistant organic pollutants (POPs), management and reduction of stockpiles, and
minimization and elimination of unintentionally produced POPs such as dioxins. The
Rotterdam Convention establishes a prior informed consent regime in respect of
the importation of toxic substances, many of which are also subject to the Stockholm
Convention. It does not ban outright the import/export of hazardous chemicals and
pesticides but rather subjects them to a regime of the prior informed consent of
the importing party before export of a banned or severely restricted chemical or
severely hazardous pesticide to which the Convention applies may take place between
parties. These are listed in Annex III of the Convention, which provides a mechanism
for amending the list of substances through the Conference of the Parties. Ultimately
of course the Convention relies on exchange of information among parties
about potentially hazardous chemicals that may be exp~rted and imported and
requires national decision-making processes to be established regarding import and
compliance by exporters with these decisions.
3. 2000 Cartagena Protocol on Living Modified Organisms
The focus of the 2000 Cartagena Protocol on Living Modified Organisms (LMOs)
to the 1992 Convention on Biological Diversity is upon the transboundary
movement of LMOs which may have adverse effects on biological diversity and
human health. 'LMO' is defined as 'any living organism that possesses a novel
combination of genetic material obtained through the use of modern biotech-
nology'. In fact the Protocol addresses two general categories of LMO: (i) those
intended for release into the environment (eg, seeds for cultivation or animal
breeding stock); and (ii) those intended for use in food or feed, or for processing
(eg, corn, cotton, and soy). The latter was of particular concern to the United States
as the chief exporter of genetically modified crops though it has not in the event
yet become a party to the Protocol. Thereunder organisms intended for direct
use as food or feed, or for processing, are subject to a less onerous regime (Article 11)
than that applicable to LMOs intended for direct release into the environment
. (Articles 7-10).
A marked feature of the Protocol is its overtly precautionary approach, with Article
1 making express reference to the precautionary approach contained in Principle 15
of the 1992 Rio Declaration and with implicit reference in the conditional use of' may
INTERNATIONAL ENVIRONMENTAL LAW
have an adverse effect' on biodiversity and/or human health. The chief regulatory
technique employed is the 'advanced informed agreement' (AIA) procedure, which
is designed to ensure that contracting parties are provided with the information
necessary to make informed decisions before agreeing to the import of LMOs into
their territory. AIA marks the Protocol out from the 'prior informed consent'
procedures of the 1989 Basel and 1998 Rotterdam Conventions, which are based on
prior multilateral agreement on the hazardous substances to be regulated and which
are set out in annexes. Prior informed consent has been applied where substances have
already been adjudged hazardous; the primary purpose of the Cartagena Protocol
is to facilitate early assessment by each contracting party of the potential risks in
accordance with the Protocol.
E. CONSERVATION OF NATURE
The evolution of treaties for the protection of species and habitat reflects in many
respects the evolution of international environmental law itself. Some of the earliest
treaties in the environmental field were concerned with the incidental regulation of
wildlife, though their primary purpose was economic, eg, the 1902 Paris Convention
on the Protection of Birds Useful to Agriculture and the 1911 Treaty of Washington
on the Protection of Fur Seals. One of the first cases to consider (and reject) the
concept of coastal State stewardship over common property resources on the adjacent
high seas likewise concerned fur seals, the 1898 Bering Fur Seals Fisheries Arbitration. 28
There are now dozens of bilateral, regional,29 and multilateral treaties concerned
with species and habitat protection, ranging from the protection of seals, bears,
vicuna, whales, and turtles to holistic environmental regulation of the Arctic and
Antarctic environments. 30 For present purposes it is not intended exhaustively to
scrutinize the detailed legal mosaic of species and habitat regulation at the bilateral
and regional levels, but rather to focus upon the 'big five' of multilateral species and
habitat treaties, namely, the 1971 Ramsar Convention on Wetlands of International
Importance Especially As Waterfowl Habitat (Ramsar Convention); the 1972
UNESCO Convention Concerning the Protection of the World Cultural and Natural
Heritage (WHC); the 1973 Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES); the 1979 Bonn Convention on the Con-
servation of Migratory Species of Wild Animals (MSC); and the 1992 Convention on
the Conservation of Biological Diversity (CBD) (see Bowman, Davies, and Redgwell,
forthcoming, 2004).
28 (1893) Moore's International Arbitrations 755 (Great Britain v US).
29 In particular the 1968 African Convention on the Conservation of Nature and the 1979
Council of Europe Convention on the Conservation of European Wildlife and Natural Habitats (Berne
Convention).
30 On which see Rothwell, 1996, ch 9; and Redgwell, 1994.
 CATHERINE REDGWELL
1. 1971 Convention on Wedands of International Importance
(Ramsar Convention)
The current mission of the Ramsar Convention 'is the conservation and wise use of
wetlands by national action and international cooperation as a means to achieving
sustainable development throughout the world'. As the reference to sustainable
development reveals, Ramsar's mission has been refined over time, so that today
'wise use' is interpreted to mean 'sustainable use' and the concept of wetlands now
embraces fish as well as bird species and habitat. Integration of the conservation
of wetland biodiversity with sustainable development, considered as synonymous
with the Convention's concept of 'wise use', is at the heart of the current strategic
plan for the Convention. There are currently about 125 contractirig parties to
the Ramsar Convention, with 1,078 sites designated for the List of Wetlands of
International Importance covering a total surface area of 81.9 million hectares.
Much has been accomplished under a Convention of initially rather unpromising
beginnings. It is still an extraordinarily brief instrument of only thirteen Articles,
but these have been subject to extensive elaboration through the Guidelines issued
by the Regular Meetings of the COP. This is the principal decision-making organ
of the Convention and it is charged with reviewing and promoting its implementa-
tion. Ramsar relies on listing of sites for protection that is afforded under national
laws. Each contracting party is required to designate 'suitable wetlands' within
its territory for inclusion on the List of Wetlands of International Importance.
Indeed, a State is not considered a full party to the Convention unless and until
a site has been designated. So long as the proposed site fulfils one of the Criteria
for Identifying Wetlands of International Importance and has been designated by
the appropriate national authority it will be added to the list. Contracting parties are
required to submit triennial reports on the implementation of the treaty to the con-
tracting parties, thus providing an opportunity for review of national implementation
measures.
Once designated, Ramsar sites are to be protected under national law but also
acquire recognition under international law as being significant for ~e international
community as a whole. Failure to promote the conservation of wetlands on the list
and their wise use may lead to the sanction of listing on the 'Montreux Record of
Ramsar sites requiring priority attention', established in 1990, and which highlights
threats to designated sites. The ultimate sanction is de-listing because of the
irremediable loss of the values which led to Ramsar listing in the first instance. A
site may not be formally added to the Record without the consent of the State
concerned. Thus the Montreux Record operates as a form of self-incrimination, the
sanction for failing to agree to such being removal from the List altogether. There
are currently forty-three sites which have been added to the Montreux Record with
the consent of the States concerned. 31 An additional and facilitative feature of the
Ramsar Convention is the awareness that failure to conserve wetlands may result
31 See www.ramsar.org.
INTERNATIONAL ENVIRONMENTAL LAW
from lack of capacity. Thus, a Small Grants Fund for Wetland Conservation and
Wise Use was also established in 1990 with the express purpose of facilitating
compliance, along with other forms of technical assistance, and the Ramsar
Advisory Mission was established asa technical assistance mechanism to provide
further advice regarding the problems or threats which have caused Montreux list-
ing to be contemplated. Site visits are an integral part of this mechanism and, as
with the Montreux listing procedure itself, are conditional upon the agreement of
the contracting party concerned. For sites covered by both Ramsar and'the World
Heritage Convention, su~h visits may be requested and carried out jointly. For
example, Ichkeul National Park in Tunisia is on both the Ramsar Montreux Record
and the WHC Heritage in Danger List owing to the impact of dam projects on the
river flowing into Ichkeul. 32
2. The World Heritage Convention
The World Heritage Convention (WHC) was adopted on 16 November 1972 under
UNESCO auspices, mere months after the 1972 Stockholm Conference. There are
presently about 175 States party to the Convention. Participation by developing States
in particular is enhanced through the World Heritage Fund, a trust fund constituted
by compulsory and voluntary contributions made by States parties to the Convention.
The purpose of the WHC is the identification, protection, conservation, presen-
tation, and transmission to future generations of the cultural and natural heritage.
Protection of designated natural and cultural heritage is conferred by inscription
on the World Heritage List of natural and cultural sites satisfying the inscription
criteria under the Convention. At present there are 730 properties on the list,
563 cultural, 144 natural, and twenty-three mixed properties in 125 States parties.
However, unlike under the Ramsar Convention, it is not necessary to have a site listed
to become a full participating party to the WHc. 33 The effectiveness of the Conven-
tion is thus dependent upon States parties offering up sites for designation since
UNESCO has no independent listing power. Independent evaluation of proposed sites
is carried out by two advisory bodies, the International Council on Monuments and
Sites (ICOMOS) in respect of cultural properties and the World Conservation Union
(lUCN) in respect of natural properties. The criteria for inscription on the World
Heritage List are set forth- in Operational Guidelines which are revised regularly by
one of the Convention bodies, the World Heritage Committee, in order to reflect
changes in the concept of world heritage.
Listing applications must include details of how the site is managed and protected
under national legislation. Subsequent protection is thus a task for national
law, subject to the general treaty obligation already indicated to protect and preserve
32 The text of the report is at www.ramsar.org!ram_rpC413.htm. In fact, the Park is one of a few sites
which is protected by listing under three agreements: Ramsar (1980), WHC (1979), and Biosphere Reserve
(1977).
33 For a full list by country and property, see www.unesco.orglwhc!heritage.htm.
680 CATHERINE REDGWELL
such heritage. The Convention makes clear that international protection of the
world cultural and natural heritage is limited to 'the establishment of a system
of international co-operation and assistance designed to support States parties
to the Convention in their efforts to conserve and identify that heritage'. The chief
regulatory tools at the disposal of the Convention organs for the achievement
of such international protection are monitoring entry to and departure from
listed status of sites of world natural and/or cultural heritage based on the data
supplied by States parties in their national inventory and implementation reports
and providing international assistance, including access to the resources of the World
Heritage Fund.
In addition to stipulating the criteria for listing, published in regularly revised
Operational Guidelines, the World Heritage Committee is also responsible for
establishing the 'List of World Heritage in Danger', the latter designation signalling
that major operations are necessary to conserve the site and for which assistance has
been requested under the Convention. The ultimate sanction for a State's failure to
fulfil its obligations under the Convention is deletion from the World Heritage List.
Danger listing is thus a form of 'name and shame', in the expectation that steps will be
taken to reduce and/or eliminate the danger posed to the world cultural and natural
heritage by the State party concerned, often in consultation with the key stakeholders
in the site and activities related thereto. At present there are thirty-three properties on
the danger list.
3. 1973 Convention on International Trade in Endangered Species
Unlike the other treaties considered here, the direct purpose of the 1973 Convention
on International Trade in Endangered Species (CITES) is not the protection of animal
and plant species per se. Rather, its objective is to control or prohibit trade in species
or their products where those species are in danger of extinction. It addresses one
of the reasons for species decline apart from loss of habitat, which is increased
exploitation to which commercial trade is a contributory factor. Over 5,000 animal
species 'from leeches to lions' and 25,000 plant species 'from pine trees to pitcher
plants' are now covered in the over 157 States party to CITES.
The Convention controls the import and export of endangered species and products
on a global scale through a permitting system operated by designated national
authorities, a procedure familiar from the discussion of the dumping conventions
above. Three appendices are used. Appendix I forbids trade in the listed species which
are in danger of extinctiofl, subject to some. exceptions which are controlled by
export, re-export, and import permits as required. Appendix II permits trade subject
to certain restrictions in the species listed therein which are not threatened with
extinction but may become so if trade is not controlled and monitored. Here only
export (or re-export) permits apply. Appendix III encompasses species covered by
national regulation where a State seeks international cooperation in controlling
(external) trade, in which case an export permit is required. As may be expected,
ml,lch of the controversy surrounding CITES has focused on listing (and de-listing)
INTERNATIONAL ENVIRONMENTAL LAW 681
in the Appendices with the listing of the African elephant particularly contentious.
For a short time the African elephant was on Appendix I, but the adverse
socio-economic consequences for Range States led toa partial relaxation in the ban
in an attempt to seek a compromise between wildlife protection and human
development.
In common with the other treaties examined here, the effectiveness of CITES is
dependent on national implementation. Each party is required to establish at least one
Management Authority and Scientific Authority to implement the permitting scheme,
while the CITES Secretariat is responsible for monitoring the overall operation of the
Treaty and facilitating exchange of information obtained through performance of
States' monitoring and (annual) reporting obligations. NGOs also playa significant
role under CITES in monitoring trade, such as the Wildlife Trade Monitoring
Unit and IUCN/WWF's TRAFFIC (Trade Records Analysis of Flora and Fauna in
Commerce). CITES' compliance review process is based on infractions reports by
the Secretariat to the COP with the effective sanction for non-compliance being
suspension of trade in specimens of CITES-listed species with the non-complying
party. In January 2002, for example, trade was suspended with Fiji, Vietnam, and
Yemen (Decision 11.16). In practice this has served as a potent tool for ensuring
proper national implementation of CITES' obligations to enact legislation, develop
work plans, control legal/illegal trade, and/or improve the basis for government
decision-making (Yeater and Vasquez, 2001).
4. 1979 Convention on the Conservation of Migratory Species
The Convention on the Conservation of Migratory Species (Bonn Convention) is not
quite a pygmy amongst the giants of the other 'big five' species and habitat treaties,
but it certainly has the lowest profile. This is in part due to its relatively slow start;
even today there are only about seventy parties, of whom only a third are developed
countries (and including the EC). Activity under the Convention has also been
hampered by the failure of many States parties to pay their contributions and
expenses, which has led to the Bonn Secretariat being chronically short-staffed and
underfunded. Nonetheless the Bonn Convention has achieved some modest success in
its primary objective, which is to conserve habitat and protect migratory species
threatened with extinction. The need for such regulatory action was highlighted in
the Stockholm Action Plan in 1972, offering an holistic approach to protection of
both land-based and marine migratory species not readily afforded by other
international instruments. The two techniques employed under the Convention are
firstly to impose obligations on Range States to protect migratory species through
restoration of habitat and removing obstacles to migration of species listed in
Appendix I as endangered throughout all or a significant portion of their range.
Taking of such species must be prohibited under domestic law. Secondly, the Con-
vention provides for the conclusion of conservation 'AGREEMENTS' (including
Memoranda of Understanding) between Range States for the conservation and
management of migratory species listed in Appendix II as having 'unfavourable
682 CATHERINE REDGWELL
conservation status' requiring international agreement,34 or at least which would
benefit significantly from international cooperation. Thus it is possible for dual-listing
of species under the Bonn Convention and for species also to be subject to protection
under other existing international agreements (marine mammals in particular
fall into this category). Thus in concluding AGREEMENTS parties to the Bonn Con-
vention are to ensure that rights and obligations under other treaties are not affected.
5. 1992 United Nations Convention on Biological Diversity
Notwithstanding the extent of international environmental regulation of species and
habitat protection outlined above, a gap persisted: no global instrument regulated the
interaction of species and habitat, and of ecosystems, in a holistic rather than a
piecemeal manner.35 The closest perhaps is the regional Convention on the Regulation
of Antarctic Marine Living Resources which expressly adopts an ecosystem approach
but this applies only to the southern ocean and, at the time of the adoption of the
CBD in 1992, had yet successfully to operationalize its novel ecosystem approach.
UNEP perceived this 'biodiversity gap' and initatied negotiations to conclude a
Convention on Biological Diversity (CBD) in time for signature at Rio. This was duly
accomplished, and the Convention entered swiftly into force a mere eighteen months
later.36 Today it has virtually universal support with over 181 States parties (including
the EC and all of its member States). This includes significant developing country
participation, crucial to the effectiveness of the Convention given that the most
biologically rich parts of the planet are located within developing equatorial States.
Participation is facilitated through funding (the GEF is the funding mechanism
for the CBD) and differentiation of obligations through 'according to respective
capabilities' language. The Convention also provides a framework for national regula-
tion of access to biological resources ('bioprospecting') on mutually agreed terms
and benefit-sharing where such resources are exploited for commercial benefit. The
role of indigenous peoples' knowledge and the application of traditional intellectual
property rights principles remain areas of acute controversy under the Convention
though without impairing developing country participation. Here it is developed
States, in particular the United States, which expressed concerns regarding the
intellectual property and technology transfer provisions of the Convention (Articles
15 and 16) and has remained outside the Convention regime.
In its role as 'biodiversity gap-filler' the CBD defines biodiversity broadly to
encompass the variability among living organisms from all sources, including, inter
alia, terrestrial, marine, and other aquatic ecosystems and the ecological complexes of
which they are part. The CBD's objectives are: the conservation of biological diversity;
sustainable use of its components; and fair and equitable sharing of the benefits
34 For an example of such international cooperation see the 1991 Agreement on the Conservation of Small
Cetaceans of the Baltic and North Seas (ASCOBANS).
35 For contributions placing the CBD in its broader context, see Bowman and Redgwell, 1996.
36 For discussion of the 2000 Cartagena Protocol to the CBD, see Section VILD.3. above.
INTERNATIONAL ENVIRONMENTAL LAW
arising out of the utilization of genetic resources, including by appropriate access to
genetic resources; transfer of relevant technologies, taking into account all rights over
those resources; and funding. Each is addressed in further detail in the body of the
CBD. Significant reliance is placed upon national measures for implementation, in
accordance with each State's particular .conditions and capabilities. It is thus up to
individual contracting parties to determine the manner of implementation of their
obligations, subject of course to scrutiny of national implementation by the COP
through the reporting requirements of the Convention. Concrete obligations are few
and far between in the Convention, a reflection both of the resistance to targets, lists,
and the identification of species and sites for protection (though some States such as
France preferred to adopt the model of the WHC for the CBD) and of the realization
that there already exist a number of conventions with concrete obligations in respect
of species and habitat such as Ramsar and the WHC. That said, the COP and the
subsidiary organs of the CBD have continued to supplement the treaty text princi-
pally through five thematic work programmes comprising: marine and coastal
biodiversity; agricultural biodiversity; forest biodiversity; inland waters; and dry
and sub-humid lands. Cooperation with closely linked other treaty regimes, such as
Ramsar, has been facilitated by the conclusion of memoranda of understanding
between secretariats.
The CBD constitutes an important milestone in its preambular recognition of the
intrinsic value of biodiversity and of the conservation of biodiversity as a 'common
concern of humankind'. However, it should be observed that this falls far short of any
internationalization of biological resources either in their ownership or in their
control-common concern is thus not akin to the 'common heritage of mankind'
concept applicable to the resources of the deep seabed. Indeed, there is an inherent
tension in the CBD in that the preamble also reaffirms States' permanent sovereignty
over their natural resources. Linkage between these concepts is found in the responsi-
bility of States for conserving their biological diversity and for using their biological
resources in a sustainable manner (Glowka, 1994). Permanent sovereignty is thus
responsible sovereignty under the CBD.
F. CONSERVATION OF MARINE LIVING RESOURCES
Regulation of marine living resources was one of the first areas of international
environmental regulatory activity, stimulated by the need to regulate common prop-
erty resources of significant economic value such as seals, whales, and fish stocks. Of
course in the nineteenth and early twentieth centuries, most coastal States claimed
only a three-mile territorial sea with the seas beyond regarded as high seas open to
exploitation of the resources therein. The Bering Fur Sea Arbitration established that
adjacent coastal States had no legal interest in the protection of living resources
beyond their initial belt of territorial sea. Today of course the picture is rather different,
particularly with the development of the 200-mile exclusive economic zone which
accords coastal States exclusive rights over the living resources of this zone (see
 CATHERINE REDGWELL INTERNATIONAL ENVIRONMENTAL LAW 685

Chapter 20, Section Sections V.C; VILB.l). Today regulation of marine living
resources tends to focus on areas beyond national jurisdiction - high seas fisheries for VIII. CONCLUSION
example-and/or fish stocks which are straddling or highly migratory, spending at
least part of their life-cycle beyond coastal State zones. In 1995 the Straddling Stocks The breadth and scope of international environmental law is of course much greater
Agreement (SSA) was concluded to address this problem, supplementing not only the than that briefly introduced in this chapter. Regional regulation of the Antarctic has
1982 LOSC but also the myriad regional fisheries organizations (RFOs) regulating contributed much to international environmental protection of both marine living
such stocks (see Chapter 20, Section VII.B.2-3). Of particular note in the latter context resources and the terrestrial Antarctic environment; the regulation of the non-
is the North Atlantic Fisheries Convention and the 1980 Convention on the Regulation navigable uses of international watercourses has recently been codified and rests
of Antarctic Marine Living Resources (CCAMLR) with its ecosystem approach. alongside extensive regional and bilateral regulation of riparian uses, including those
The approach of most fisheries treaties is to establish a fixed quota (a total allow- which may have significant environmental impact; and marine living resources, from
able catch) for particular stocks, regulate fishing methods (eg, stipulated mesh size, fish to mammals, have been subject to a myriad of global, regional, and bilateral
open and close fishing seasons, and/or a prohibition of certain methods such as drift arrangements only touched on here. Fertile areas for further exploration are the inter-
or purse seine nets) and to require monitoring and reporting obligations to be section of international environmental law with other areas addressed in this volume,
observed. Some form of inspection system is also common, as is the establishment of most notably human rights and trade, as well as the effects of war on the environment.
a scientific body to assess catch data and generally to advise on sustainable levels of What this chapter has sought to achieve is to equip the onward adventurer with the
fishing activity. In the Antarctic context the determination of permissible fishing basic tools necessary to appreciate other areas of environmental regulatory activity,
effort is related not only to an analysis of the individual stocks but also of the inter- and with a firm grasp of how the subject has evolved from mere incidental regulation
action between predator and prey, in order to set a level of catch consistent with of the environmental effects of human activities to holistic regulation of global issues
maintenance of the marine ecosystem as a whole. Common to all these instruments, of common and intertemporal concern reaching both within and beyond the State.
however, is the persistent problem of illegal fishing, usually by 'free riders' outside the
relevant treaty and thus exercising the high seas freedom to fish. The 1995 SSA
seeks to encourage participation in RFOs where established for the areas in question,
though here again such provision depends on the free rider States being party to the
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SSA. There have also been unilateral attempts to address illegal fishing, whether by
States party to an RFO (eg, Canada's arrest of the Spanish trawler the Estai outside BIRNIE, P (1997), 'Are Twentieth Century Relationship of Treaties and Soft Law',
Marine Conservation Convenions Adapt- 48 ICLQ901.
its 200-mile EEZ for violation of NAFO measures)37 or by coastal States exercising
able to Twenty-First Century Goals and BRUS, M (1995), Third Party Dispute Settle-
control over landing rights the exercise of which are crucial in ensuring transit of
Principles?', 12 IIMCL 307 and 488.
fresh fish to lucrative European and other markets.38 Particular fish stocks, such as ment in an Interdependent World (The
- - and BOYLE, A (1995), Basic Documents Hague: Martinus Nijhoff).
highly migratory tuna stocks,39 are the subject of species specific regulation as are a
on International Law (Oxford: Oxford
wide range of marine mammals such as dolphins,40 seals,41 and whales. Here we see CHURCHILL, RR and LOWE, AV (1999), The
University Press).
a shift in regulatory focus, for whilst fisheries regulation continues to be primarily Law of the Sea, 3rd edn (Manchester:
- - and - - (2002), International Law
concerned with conserving the economic value of the resource through good fisheries Manchester University Press).
and the Environment, 2nd edn (Oxford:
management practices, there is no doubt the 1946 International Convention for the Oxford University Press). - - and ULFSTEIN, G (2000), 'Automo-
Regulation of Whaling has seen a shift in approach from regulation of the (over) mous Institutional Arrangements in
BODANSKY, D (1993), 'UN Convention on
exploitation of an economic resource to a moratorium on whaling based on the more Climate Change', 18 Yale ILl 451. Multilateral Environmental Agreements:
diffuse anthropocentric concern to protect the speciesY A Little-Noticed Phenomenon in Inter-
BOWMAN, M, DAVIES, P, and REDWELL, C
national Law', 94 AIIL 623.
(forthcoming 2004), Lyster's Interna-
37 For analysis see Davies, 1995; more generally on straddling stocks, Davies and Redgwell, 1996.
38 See the Special Chamber of the ITLOS established on 20 December 2000 in the Case Concerning tional Wildlife Law, 2nd edn (Cambridge: COMMISSION ON GLOBAL GOVERNANCE
the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile! Cambridge University Press). (1995), Our Global Neighbourhood
European Community) (proceedings suspended by agreement). - - and REDGWELL, C (eds) (1996), (Oxford: Oxford University Press).
39 See the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission.
40 See, eg, the 1991 ASCOBANS, n 34 above. International Law and the Conservation of DAVIES, PGG (1995), 'The EC/Canadian
41 Such as the 1972 Convention on the Conservation of Antarctic Seals. Biological Diversity (The Hague: Kluwer). Fisheries Dispute in the Northwest
42 See Birnie, 1997. BOYLE, A (1999), 'Some Reflections on the Atlantic', 44 ICLQ 933.
686 CATHERINE REDGWELL
- - (2002), 'Public Participation, the
Aarhus Convention, and the European
Community', in Zillman, D, Lucas, A, and
Pring, G (eds) Human Rights in Natural
Resource Development: Public Participa-
tion in the Sustainable Development of
Mining and Energy Resources (Oxford:
Oxford University Press), pISS.
DAVIES, PGG and REDGWELL, C (1996),
'The International Legal Regulation of
Straddling Fish Stocks', LXVII BYIL 199.
EBBESSON, J (1997), 'The Notion of Public
Participation in International Environ-
mental Law', 8 YBIEL 5l.
FITZMAURICE, M (2001), 'International
Environmental Protection of the
Environment',293 Recueil des Cours 13.
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mental Non-Compliance Procedures and
International Law', XXXI NYIL 35.
FRANCIONI, F (1994), 'Developments in
Environmental Law from Sovereignty to
Governance: The EC Environmental Pol-
icy', in Markesinis, B (ed.), The Gradual
Convergence: Foreign Ideas, Foreign Influ-
ences, and English Law on the Eve of the 21st
Century (Oxford: Clarendon Press), p 205.
- - and SCOVAZZI, T (ed.) (1991), Inter-
national Responsibility for Environmental
Harm (Dordrecht: Kluwer).
GILLESPIE, A (1997), International Environ-
mental Law, Policy and Ethics (Oxford:
Oxford University Press).
GLOWKA, L, et al. (1994), A Guide to the
Convention on Biological Diversity, IUCN
Environmental Policy and Law Paper
No 30.
IUCN (2000), Draft International Covenant
on Environment and Development, 2nd
edn (IUCN).
KUMMER, K (2000), International Manage-
ment of Hazardous Wastes (Oxford:
Clarendon Press).
o KOWA, P (2000), State Responsibility for
Transboundary Air Pollution in Inter-
national Law (Oxford: Oxford University
Press).
PARADELL-TRIUS, L (2000), 'Principles of
International Environmental Law: an
Overview', 9:2 RECIEL 93.
PEEL, J (2001), 'New State Responsibility
Rules and Compliance with Multilateral
Environmental Obligations-Some case
studies of how the new rules might
apply in the international environmental
context', 10: 1 RECIEL 82.
REDGWELL, C (1994), 'Environmental Pro-
tection in Antarctica: the 1991 Protocol',
43 ICLQ599.
- - (2000), 'Multilateral Environmental
Treaty-Making', in Gowlland-Debbas, V
(ed.), Multilateral Treaty-Making: The
Current Status of Challenges to and
Reforms Needed in the International Legis-
lative Process (The Hague: Martinus
Nijhoff), p 89.
ROTHWELL, D (1996), The Polar Regions and
the Development of International Law
(Cambridge: Cambridge University Press).
SANDS, P (1995), Principles of Interna-
tional Environmental Law (Manchester:
Manchester University Press).
WERKSMAN, J (1998), 'Compliance and the
Kyoto Protocol: Building a Backbone into
a "Flexible" Regime', 9 YBIEL 48.
WETTERSTEIN,.P (ed.) (1997), Harm to the
Environment: The Right to Compensation
and the Assessment of Damages (Oxford:
Clarendon Press).
WOLFRUM, R (1999), 'Means of Ensuring
Compliance with and Enforcement of
International Environmental Law', 272
Recueil des Cours 9.
YEATER, M and VASQUEZ, (2001),
'Demystifying the Relationship between
CITES and the WTO', 10:3 RECIEL 27l.
YOSHIDA,O (2001), The International Legal
Regime for the Protection of the Strato-
spheric Ozone Layer (The Hague: Kluwer).
INTERNATIONAL ENVIRONMENTAL LAW
FURTHER READING
BIRNIE, P and BOYLE, A (2002), Academy lectures on international
International Law and The Environment, environmental law providing a helpful
2nd edn (Oxford: Oxford University overview of the subject with case studies
Press). Of the are several general of the ozone layer protection and inter-
textbooks on international environ- national watercourses.
mental law, this is the best and the most
FRANCIONI, F (ed.) (2001) Environment,
recent:
Human Rights & International Trade
BOWMAN, M, DAVIES P, and REDGWELL, C (Oxford: Hart Publishing) contains a
(2004), Lyster's International Wildlife Law, number of stimulating contributions
2nd edn (Cambridge: Cambridge Uni- not only on the general issue but also
versity Press). A highly readable account examining the compatibility of specific
of the principal treaties concerned with environmental treaties, in particular the
wildlife protection. Cartagena Protocol, with the WTO
agreements.
BOYLE, A and ANDERSON, M (eds) (1996),
Human Rights Approaches to Environ- HURRELL, A and KINGSBURY, B (eds) (1992),
mental Protection (Oxford: Clarendon International Politics of the Environment
Press). A splendid overview of the inter- (Oxford: Clarendon Press). This places
section of human rights and the environmental issues in their inter-
environment. national relations context.
- - and FREESTONE, D (eds) (1999), MORRISON, FL and WOLFRUM, R (eds)
International Law and Sustainable Devel- (2000), International, Regional and
opment: Past Achievements and Future National Environmental Law (The Hague:
Challenges (Oxford: Oxford University Kluwer). This edited volume includes
Press). A valuable resource not only chapters on the EC and North American
for discussion of sustainable develop- cooperation, and in-depth analysis of
ment but for contextual analysis drawing German and US law.
on many topical international environ-
SANDS, P (1995), Principles of International
mental issues.
Environmental Law (Manchester: Man-
FITZMAURICE, M (2001), 'International chester University Press). Another very
Protection of the Environment', 293 useful textbook (2nd edn forthcoming in
Recueil des Cours 13. Recent Hague 2003-4).
Those searching for access to the web pages of the key environmental treaties will find the
UNEP (www.unep.org) and IMO (www.imo.org) sites useful gateways.
The principal treaty texts are compiled with useful commentary and guidance for
further reading in Birnie, P and Boyle, A (1995), Basic Documents on International
Law and the Environment (Oxford: Oxford University Press) (2nd edn forthcoming
2004).
688 CATHERINE REDGWELL

Finally, the major cases on international environmental law may be found in Robb, C (ed.),
International Environmental Law Reports (Cambridge: Cambridge University Press, three
volumes to date addressed to early decisions, trade and environment, and human rights and
environment) .
22
INTERNATIONAL
ECONOMIC LAW
Gerhard Loibl

SUMMARY

International Economic Law covers a very broad range of topics as it deals with all
economic aspects of relations between States. Thus, international trade law, international
fiscal law, and investment law fall within the scope of international economic law.
Customary international law has only developed very general rules in the area of inter-
national economic law. Thus, international economic relations between States are mainly
based on treaties. The current international economic system has been elaborated in the
aftermath of the Bretton Woods conference. In the last decades this system has been
adapted to deal with new challenges.

I. INTRODUCTION

International Economic Law may be described in various ways. No clear definition

has developed in practice or in theory. Both broad and more restricted descripti.ons
have been put forward. In the broadest sense,.'international economic law could
be defined as including all legal subjects which have both an international and an
economic component.
The Third Restatement (American Law Institute, 1987, vol 2, p 261) has described
international economic law very comprehensively:

The law of international economic relations in its broadest sense includes all the inter-
national law and international agreements governing economic transactions that cross state
boundaries or that otherwise have implications for more than one state, such as those
involving the movement of goods, funds, persons, intangibles, technology, vessels or aircraft.

It has been suggested that international economic law embraces the following areas:
the law of establishment, the law of investment, the law of economic relations, the law
 GERHARD LOIBL
of economic institutions, and the law of regional economic integration (cf Carreau
and Julliard, 1998, p 6). But of course there are other areas which could be seen as part
of international economic law, such as the question of economic development or
the relationship between economic issues and environmental protection or human
rights. This chapter will concentrate on those areas of international economic law
which govern the relations between subjects of international law and thus will include
international financial issues, international trade, and issues concerning foreign
investment. Furthermore, organizational matters of the organizations dealing with
international economic issues will be taken into account.
International Economic Law has developed rapidly since the end of the Second
World War. The current international economic system is based on the international
regulations established by the Bretton Woods Conference in 1944 (Coing, 1992,
pp 494-495). The main objective of the Conference was to avoid the monetary dis-
orders of earlier decades in the future and to ensure international trade discipline.
Central to this system are the economic theories of comparative advantage and econ-
omies of scale. l The main influences were the proposals of John Maynard Keynes
(United Kingdom) and Harry Dextor White (USA).
As a result of the Bretton Woods Conference three main international institutions
were established which form the backbone of the current international economic
legal system: the International Monetary Fund (IMF), the International BarIk for
Reconstruction and Development (IBRD, more well known under the name World
BarIk), and the General Agreement on Tariffs and Trade (GATT), which was replaced
by the World Trade Organization (WTO) in 1995. The evolution of these institutions
is described later in this chapter.
In addition, a number of other international organizations and institutions have
been set up which are important for the further development of international
economic law. The Organization for Economic Cooperation and Development
(OECD),2 established in 1960 as the successor to the Organization for European
Economic Cooperation (OEEC) which was set up to administer the Marshall Plan
aid provided by the United States to Europe after the end of the Second World War,
plays an important role in the elaboration of principles for international economic
transaCtions, such as capital movements and investments. 3 Moreover, specialized
agencies of the United Nations have been set up or have continued to operate, such
as the Food and Agriculture Organization (FAO), the World Intellectual Property
I The theory of economies of scale is built on the idea that specialization in the production of goods
and services leads to lower (average) production costs. The economic theory of comparative advantage states
that countries will produce goods where they have a comparative advantage.
2 Currently the OECD has thirty member countries. They compromise the member States of the European
Union, Australia, Canada, the Czech Republic, Hungary, Iceland, Japan, Korea, Liechtenstein, Mexico, New
Zealand, Norway, Poland, the Slovak Republic, Switzerland, Turkey, and the United States of America. The
Commission of the European Community takes part in the work of the OECD.
3 Cf the OECD Code of Liberalization of Current Invisible Transactions and the OECD Code of
Liberalization of Capital Movements.
INTERNATIONAL ECONOMIC LAW
Organization (WIPO), and the International Labour Organization (ILO). The United
Nations Conference on Trade and Development (UNCTAD) was established in 1965
by the UN General Assembly to give more weight to the interests of developing
countries.
On the regional level a number of international organizations or institutions
have been set up to ensure closer economic cooperation between States, suth as the
European Community (EC), the North American Free Trade Agreement (NAFTA),
the Southern African Development Community (SADC), the West African Economic
and Monetary Union (Union Economique et Monetaire Ouest-Africaine (UEMO),
the Association of Southeast Asian Nations (ASEAN), and Mercosur (Mercado
Comun del Sur or Mercado Comun del Cono Sur). The degree of integration of these
organizations as well as the economic topics covered by the founding agreements
varies.
II. INTERNATIONAL FINANCE LAW
The Bretton Woods institutions are the backbone of today's international finance
system. It has adapted to new challenges and issues which have come up in the
·last decades. Over the years it has been able to provide the stability and flexibility
necessary to ensure a stable environment for the world economy as well as to provide
financial resources for development.
A. THE INTERNATIONAL MONETARY FUND (IMF)
1. Purposes and activities of the IMF
The IMF was established to promote international monetary cooperation and
exchange rate stability, to assist in the establishment of a multilateral system of pay-
ments for current transactions between members, and to assist in the elimination of
foreign exchange restrictions that hamper the growth of world trade and to pro-
vide temporary, ie short term, assistance to correct balance of payments imbalances
(Shihata, 2001, p 111). Article I of the Articles of Agreement which established the
IMF states the following purposes:
(i) To promote international monetary cooperation through a permanent institution
which provides the machinery for consultation and collaboration on international
monetary problems.
eii) To facilitate the expansion and balanced growth of international trade, and to con-
tribute thereby to the promotion and maintenance of high levels of employment and
real income and to the development of the productive resources of all members as
primary objectives of economic policy.
 GERHARD LOIBL
(iii) To promote exchange stability, to maintain orderly exchange arrangements among
members, and to avoid competitive exchange depreciation.
(iv) To assist in the establishment of a multilateral system of payments in respect of
current transactions between members and in the elimination of foreign exchange
restrictions which hamper the growth of world trade.
(v) To give confidence to members by making the general resources of the Fund tempor-
arily available to them under adequate safeguards, thus providing them with the
opportunity to correct maladjustments in their balance of payments without resort-
ing to measures destructive of national or international prosperity.
(vi) In accordance with the above, to shorten the duration and lessen the degree of
disequilibrium in the international balances of payments of members.
The Agreement establishing the IMF provided for a fixed parity between all currencies
and gold. This was based on the agreement of the USA to fix the convertibility of the
US dollar into gold at the rate of thirty-five US dollar per ounce (gold exchange
standard). All other currencies had a fixed exchange rate to the US dollar. However,
the system based on the gold standard was terminated in 1971 when the USA sus-
pended its obligation unilaterally. In 1978 an amendment to the Articles of Agreement
entered into force, allowing member States to choose their exchange rate system freely
with the aim to assure orderly exchange arrangements and to promote a stable system
of exchange rate~ (Article N).4
Furthermore, according to the Articles of Agreement a multilateral system of pay-
ments and transfers for current international transactions to facilitate the growth of
international trade and services was established (Article VIII). It ensures that govern-
ments do not prohibit, delay, or otherwise hinder the availability or use of their own
or another member's currency for making current international transactions.
However, as not all members are able to implement the obligations under Article VIII,
Article XIV provides for transitional arrangements which allow members to maintain
restrictions on current international transactions. In addition, exceptions may be
granted by the IMF if they are deemed temporarily necessary (Quershi, 1999,
pp 138-158). Capital transfers may be regulated by members in a manner not to
impede the multilateral system (Article VI). A major activity of the IMF, considered
in more detail later, is to provide loans to member countries. In order to ensure
that member States meet their obligations a process of reporting, monitoring, and
consultations (surveillance) has been established.
2. Organizational structure of the IMF
The main organs of the IMF are: the Board of Governors, the International Monetary
and Financial Committee, the Executive Board, and the Managing Director. All
member States (in 2002, 184 in number) are represented in the Board of Governors,
4 For the economic background on the evolution of the IMF see Krugman and Obstfeld, International
Economics, 2000, p 546.
INTERNATIONAL ECONOMIC LAW
while the Executive Board conducts the day-to-day business of the IMF. It consists
of a limited number of Executive Directors (currently twenty-four members). Eight
Executive Directors representing individual countries (five appointed by France,
Germany, Japan, the United Kingdom, and the United States; three elected by
the votes of China, Russia, and Saudi Arabia); the other sixteen members represent
groupings of countries, so-called constituencies. The Executive Board is responsible
for conducting the business of the Fund, and the Managing Director, who is selected
by the ·Executive Board, conducts ordinary . business under the direction of the
Executive Board. The decision-making process in the IMF is based on weighted
voting, ie each member's voting power is based on its quota. But the general practice
of the IMF is to avoid voting and to take decisions by consensus.
The quota of each member is determined in general by its economic position
relative to other members. A number of economic factors are considered in
determining quotas, including GDP, current account transactions,. and official
reserves. The largest quota is currently held by the United States (17.47%), the small-
est by Palau (0.0001 %). The quota determines various aspects of a member's relations
with the IMF, including its subscription, voting power, access to financing, and its
SDR allocation (see below).
3. Loans facilities
One of the main functions of the IMF is to provide loans to member countries which
experience balance-of-payments problems. Since its creation, the IMF has developed
a number of different loan facilities, including non-concessional and concessional
lending. Whereas in the first case the interest rate is market based and a surcharge
is paid, the interest rate in the latter case is only 0.5% and the repayment period is
longer. s
The non-concessional lending include, inter alia, Stand-By Arrangements to
address short-term balance-of-payments problems, the Extended Fund Facility to
meet balance-of-payments problems caused by structural problems of the economy,
and the Supplemental Reserve Facility to meet needs for very short-term financing on
a large scale caused by sudden loss of market confidence. The Poverty Reduction and
Growth Facility provides concessionalloans to low income countries. The amount of
borrowing from the IMF for a member State is limited in general to 100% of its quota
annually and 300% cumulatively.
The Fund makes its resources available to a member subject to certain con-
ditions (IMF Conditionality), ie financial conditionality (eg repurchase obligations
or charges) and economic conditionality (eg reduction of food subsidies or devalua-
tion).6 This practice has given rise to wide criticism as such measures have not
always been successful in economic terms and have sometimes led to negative social
developments.
5 The IMF website has further details: www.imf.org.
6 See Quereshi, 1999, p 176; Denters, 1996.
 GERHARD LOIBL
4. Financial resources of the IMF
The financial resources of the IMF are provided by the members based on their
quotas. 25% of these quotas (so-called subscriptions) have to be paid in Special
Drawing Rights or other reserve currencies determined by the IMF. The remaining
75% may be paid in the State's national currencies. The financial resources have been
increased several times. The latest increase of subscriptions was agreed by the Board
of Governors in 1998 and also led to a change in quotas.
The quotas of the members are the principle source of financing for the IMF. In
addition, a number of members are ready to lend supplementary funds to the IMF
if these were needed in order to forestall or cope with an impairment of the inter-
national monetary system, or to deal with an exceptional situation that threatens
the international monetary system. For this purpose, as supplementary sources of
financing, the General Arrangements to Borrow (GAB) was established in 1962 and
the New Arrangements to Borrow (NAB) was introduced in 1998. GAB enables the
IMF to borrow specified amounts of currencies from eleven industrial countries (or
their central banks) under certain circumstances and at market-related rates of inter-
est. NAB provides supplementary resources to the IMF from twenty-five countries
(including countries such as Malaysia, Saudi Arabia, Singapore, and Thailand).
5. Special Drawing Rights
In 1969, the Articles of the IMF were amended to create Special Drawing Rights
(SDR) as an international reserve asset to supplement members' existing reserve
assets (Article XVIII section 2(a». This was necessary because of the pressure which
the IMF fixed exchange rate system came under in the 1960s, lacking as it did a
mechanism for regulating reserve growth to finance the expansion of world trade and
financial development. At that time, gold and the US dollar were the two main reserve
assets but gold production had become an inadequate and unreliable source of reserve
supply and the continuing growth of international payments posed a threat to the
value of the US dollar. SDRs were created to address this inadequacy of international
liquidity. Physically, SDRs are simply book-keeping entries at the IMF in accounts for
member countries and the Fund itself, proportionate to their quotas in the Fund
(Ethier, 1988, p 455).
As the SDRs were allocated in the 1970s and 80s according to the quotas of the
then member States, countries not parties to the IMF were not allocated any SDRs.
Attempts to allocate new SDRs in recent years have not met with the approval of
the necessary 85% majority. The value of the SDR is determined by a basket of
currencies that currently consists of the euro, Japanese yen, pound sterling, and US
dollar. The role of the SDRs as a reserve asset is limited. By the end of the year
2001 SDRs accounted for less than 1.17% of IMF members' non-gold reserves. But
SDRs have been accepted as a currency of accounting not only within the IMF but
also in other areas of international economic law, eg in international commodity
agreements.
INTERNATIONAL ECONOMIC·LAW
B. THE WORLD BANK GROUP
The International Bank on Reconstruction and Development (IBRD), also known as
the World Bank, was established in 1944. Since then a number of new institutions
were established under the auspices of the IBRD in order to deal with new challenges.
Thus, the International Finance Cooperation (IFC), the International Development
Association (IDA), the International Centre for the Settlement of Investment Disputes
(ICSID), and the Multilateral Investment Guarantee Agency (MIGA) were established
to supplement the activities of the IBRD. Although each of these institutions are
separate legal entities, they collaborate closely towards a common objective: the trans-
fer of resources and the promotion of investment for developing countries. Together
they form the World Bank Group. Furthermore, the Global Environmental Facility
(GEF) was created by the IBRD together with the United Nations Environment
Programme (UNEP) and the United Nations Development Programme (UNDP). The
institutions of the World Bank Group share similar organizational structures and
decision-making processes. Furthermore, there are overlaps in personnel, this some-
times being expressly required by the relevant treaties whilst in other instances it is a
product of practice. This ensured a consistent policy across the World Bank Group.
1. International Bank of Reconstruction and Development (IBRD)
Membership of the IBRD requires membership of the IMF. Therefore, both organiza-
tions have the same circle of member States. The World Bank was created to mobilize
financial resources with a view of lending to. those States in need of foreign invest-
ment. According to Article I of the Articles of Agreement the purposes of the World
Bank are to assist in the reconstruction and development of territories of members
by facilitating the investment of capital for productive purposes; to promote private
foreign investments by means of guarantees or participation in loans and other
investments made by private investors; to supplement private investment by pro-
viding, on suitable conditions, finance for productive purposes; to promote the long-
range balanced growth of international trade and the maintenance of equilibrium in
balances of payments by encouraging international investment for the development
of the productive resources; to arrange the loans made or guaranteed by it in relation
to international loans through other channels so that the more useful and urgent
projects, large and small alike, will be dealt with first; and to conduct its operation
with due regard to the effect of international investment on business conditions in the
territories of members.
After the Second World War the World Bank concentrated its activities on
reconstruction. Today, the World Bank concentrates primarily on the financing
of projects in developing countries. According to a narrow interpretation of the
purposes of the World Bank, its role may be restricted to financing or facilitating
investments for productive purposes. Moreover, Article III, section 4(iii) provides
that its loans and guarantees shall, except in special circumstances, be for the purpose
of specific projects of reconstruction or development. Thus, the World Bank in its
 GERHARD LOIBL
early years financed construction programmes in Europe and economic development
projects in developing countries. It only started slowly to finance social projects.
Based on the special circumstances exception in 1980 the IBRD started to provide
structural adjustment loans and in 1984 sectorial adjustment loans. These provide
cash to support structural (policy and institutional) reforms in the economy as a
whole or in a specific sector (Shihata, 2001, p 121), including in particular support for
legal, regulatory, judicial, and civil service reforms as well as loans for the privatization
of public enterprises. These activities are considered to fall within the scope of Article
I as they further the Bank's objective of facilitating investment for productive pur-
poses. According to Article III section 4(i) of the Articles of Agreement any loan
(or guarantee of loan) made by the Bank needs sovereign involvement, ie it has to
be guaranteed by the member (or its central bank or some comparable agency
of the member) in whose territory the project is located. The IBRD provided its first
guarantee for a private investment loan as set out in Article III in 1984.
Furthermore, according to Article III section 4(v) the IBRD shall pay due regard
to the prospects that the borrower, and, if the borrower is not a member, that the
guarantor, will be in a position to meet its obligations under the loan. Thus, the World
Bank may not provide loans or guarantees on a concessional basis. It charges interests
which reflect its costs. Loans must be repaid in fifteen to twenty years and there is a
grace period of three to five years before repayments of the principal begin.
The capital of the World Bank is provided by its member States. These shares differ
in accordance with their quota which are based on their relative economic strength
(the United States is the biggest shareholder). The members pay only a small portion
of the value of their shares (5%). The unpaid balance is due if the IBRD is unable to
pay its creditors (which has not happened so far). IBRD rules require that loans
outstanding and disbursed do not exceed the combined total of capital and reserves.
The IBRD raises the money for its activities in financial markets (eg by selling debt
securities to pension funds, insurance companies, corporations, and other banks).
Furthermore, the Bank earns interest on its lending, and the commissions and charges
arising from the granting of loans.
The organizational structure of the IBRD is similar to the IMF. The central organ is
the Board of Governors, consisting of a Governor and an alternate appointed by each
member State. Decisions are taken by weighted voting: each member has the same
basis number of votes (250), plus votes allocated on the basis of its quota. The daily
business is conducted by the Executive Board, currently consisting of twenty-four
Directors: five of the Directors are appointed by the members having the highest
quotas, the rest elected by constituencies (as in the IMF). The President is elected by
the Executive Board.
In response to criticisms by the public (and in particular the NGO community) the
World Bank has elaborated a 'set of operational policies and procedures addressing
social and environmental concerns that could result from projects financed by the
World Bank.' Each project is screened according to these policies and procedures (eg
operational policies and procedures have been established for environmental impact
INTERNATIONAL ECONOMIC LAW
assessment, forestry, involuntary resettlement, indigenous people, and natural
habitat)?
Furthermore, the World Bank Inspection Panel was established in 1993 to deal with
complaints from private citizens who believe that they or their interests have been,
or could be, negatively affected by a project financed by the Bank (or IDA). The Panel,
consisting of three individuals, makes recommendations to the Bank's management
which decides on necessary action. 8 .
2. International Finance Cooperation (IFC)
The IFC was established in 1956 to provide financial resources without any govern-
ment guarantees to private enterprises in developing cmmtries.9 Article I of the
Articles of Agreement states that the purpose of the IFC is to further economic
development by encouraging the growth of productive private enterprise in member
countries, particularly in less developed areas, thus supplementing the activities of the
IBRD. In carrying out this purpose, the IFC shall:
(i) in association with private investors, assist in financing the establishment,
improvement and expansion of productive private enterprises which would
contribute to the development of its member countries by making invest-
ments, without guarantee of repayment by the member government con-
cerned, in cases where sufficient private capital is not available on reasonable
terms;
(ii) seek to bring together investment opportunities, domestic and foreign private
capital, and experienced management; and
(iii) seek to stimulate, and to help create conditions conducive to, the flow of
private capital, domestic and foreign, into productive investment in member
countries.
Financing by the IFC may take the form ofloans, guarantees, or even equity participa-
tion (Article III section 2). As the IFC is to invest in private enterprises, its investment
activities are heavily dependent on the decisions of private investors, who in turn are
influenced by their perceptions of the business climate and opportunities. Therefore,
one of the IFC's main activities is also to develop investment opportunities through
its promotional work and to help raise the level of investor confidence in selected
projects by working with local investors, foreign partners, other financial institutions,
and host governments. lO
7 Cf Shihata, 1998; Loibl, 1998. On the policies of the World Bank Group see Pollution Prevention and
Abatement Handbook, effective July 1998 (www.ibrd.org).
8 For a detailed description on the structure and operation of the Inspection Panel see Shihata, 2000.
The reports of the Panel can be found on the website of the World Bank Inspection PaneL
9 See above the requirements set by the Articles of Agreement of the World Bank (Article III para 4(i)).
10 See www.ifc.org.
 GERHARD LOIBL
Investment decisions by the IFC are based on there being an adequate financial
return to the IFC and an adequate economic return in the country in which the
investment is made. Moreover, the IFC will only provide financial resources for pro-
jects which it considers would not otherwise be capable of attracting private resources
on reasonable terms (Golsong, 1992, pp 1142-4). Furthermore, the IFC shall not
assume responsibility for managing any enterprise in which it has invested and shall
not exercise voting rights for such purpose or any other purpose which, in its opinion,
is properly within the scope of managerial control (Article III section 3(iv)). As with
the World Bank, each project is screened for its social and environmental impacts. The
organizational structure of the IFC follows the pattern of the IBRD. Its share capital,
which is paid by member countries (in 2002, 175 in number), is similar to the IBRD.
Voting rights are proportionate to the number of shares held.
In 1999 a Compliance Advisor/Ombudsman was established by the IFC (and
MIGA) which has a function similar to that of the World Bank's Inspection Panel
for the IBRD and IDA. Its mandate is to assist the IFC and MIGA to address com-
plaints of people affected by projects in a fair, objective, and constructive manner
and to enhance the social and environmental outcomes of projects in which these
institutions playa role. ll
3. International Development Association (IDA)
The International Development Association was established in 1960 to provide con-
cessional financing to developing countries. Many developing countries that became
members of the IBRD did not meet the condition of creditworthiness set by the
IBRD' s Articles of Agreement,12 so a new mechanism had to be created to provide
them with loans and guarantees.
Article I of the Articles of Agreement states that the purposes of IDA are:
to promote economic development, increase productivity and thus raise standards of living
in the less-developed areas of the world included within the Association's membership,
in particular by providing finance to meet their important developmental requirements on
terms which are more flexible and bear less heavily on the balance of payments than those
of conventional loans, thereby furthering the developmental objectives of the IBRD and
supplementing its activities.
Out of the 163 members, seventy-nine countries are currently eligible to borrow
from IDA. l3 Some countries that have borrowed from IDA in the past are now too
prosperous to do so, including China, Costa Rica, Chile, Egypt, Morocco, Thailand,
and Turkey.
I I See Operation Guidelines for the Office of the IFC/MIGA Compliance Advisor/Ombudsman
(www.ifc.orglcao).
12 Ibid, Article III section 4(v).
l3 In the year 2000, for example, IDA lent to countries that had a per capita income of less than US$885
and lack the financial ability to borrow from the IBRD.
INTERNATIONAL ECONOMIC LAW
Loans by IDA are made on concessional terms: no interest charge, a service charge
of three-quarters of 1% per annum, a long repayment period (thirty-five to forty-five
years) and a ten-year grace period. The financial resources of IDA are provided
through subscriptions and contributions by the richer members. They are replenished
from time to time (thirteen replenishments have taken place so far). Furthermore,
IBRD has also granted loans to IDA. Additional funds come from repayments of
previous IDA credits. The organizational structure and the decision-making process
follow those of the World Bank (and IFC).
4. Global Environmental Facility (GEF) and other trust funds
To further the World Bank's purposes a number of trust funds have been set up to
finance specific activities. They are funded by donors and are administrated by
the Bank, examples being the Brazilian Rainforest Trust Fund and the HIPC (Heavily
Indebted Poor Countries) Trust Fund to support the HIPC initiative to reduce
the debt burden. In 1994 the Global Environmental Facility (GEF)14 was set up
jointly by IBRD, UNEP, and UNDP, in order to meet incremental costs of projects
and programmes aiming to achieve global environmental benefits in the four focal
areas-climate change, biological diversity, international waters, and ozone layer
depletion-and activities concerning land degradation relating to those four areas. In
2002 two more focal areas were added (desertification and persistent organic pollu-
tants). The GEF also operates as the financial mechanism for a number of conventions
(eg United Nations Framework Convention on Climate Change, Convention on
Biodiversity) .
C. REGIONAL DEVELOPMENT BANKS
Regional development banks have been founded to supplement the actIVItIes of
the IBRD, IDA, and IFC as well as bilateral development cooperation. Their task is
to give closer attention to specific regional needs and priorities. In general, their
membership comprises both countries of the region in question and countries from
Europe and North America. Examples of such regional banks are the Inter-American
Development Bank, the African Development Bank, the Asian Development Bank,
and the European Bank for Reconstruction and Development.
D. CONCLUDING REMARKS
The international financial system has been criticized in the last few years for not
being able to address the new challenges which have arisen. However, as its evolution
shows, the international financial system has in the past been adapted to deal with
new issues and it is to be hoped that legal norms and institutional structures will be
further adjusted to meet future challenges. Although it seemed clear when they were
14 The Global Environmental Facility had been operating since 1991 on an interim basis.
7 00 GERHARD LOIBL
established that the IMF and World Bank would serve different purposes, practice
over the years has demonstrated that their activities overlap to a certain extent and
one future task is to draw a clear distinction between them.
III. INTERNATIONAL TRADE LAW
A. THE GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT)
AND THE WORLD TRADE ORGANIZATION (WTO)
In addition to creating financial institutions, there was also need to establish an
international system to abolish trade barriers. Following the Second World War, a
charter for an International Trade Organization (ITO) was drafted to deal with trade
in goods. This was adopted in Havana in 1948, but it failed to enter into force since the
United States Congress did not approve it and other States did not want to establish a
global trading system without the largest economy in the world. Instead, international
trade after the Second World War was based on the General Agreement on Tariffs and
Trade (GATT), a multilateral treaty that was designed to operate under the umbrella
of the ITO. It entered into force on a provisional basis in 1948 and stayed in force ~til
1995 and was known as GATT 1947.
Since then six general tariff negotiations rounds (multilateral negotiations rounds)
have taken place: Annecy (1949), Torquay (1951), Geneva (1956), the Dillon Round
(1960-62), the Kennedy Round (1964-67), and the Tokyo Round (1973-79). Whereas
the earlier rounds centred on tariff reductions, the later rounds resulted in the con-
clusion of new multilateral agreements. The Uruguay Round (1986-94) led to the
establishment of the World Trade Organization (WTO). The WTO entered into force
on 1 January 1995 and established a comprehensive single international trade organ-
ization (incorporating the multilateral trade agreements which had been the result of
the multilateral negotiation rounds and whose membership differed for each of these
agreements) as had been envisaged by the ITO. GATT 1947 was terminated by a
decision of the GATT contracting parties.
B. THE WORLD TRADE ORGANIZATION
1. Introduction
The WTO was established by the Marrakesh Agreement 1994. States and separate
customs territories (eg the European Community, Hong Kong, Macao) may become
members of the WTO, which currently number 144. It is built on four main pillars:
GATT 1994 (GATT 1947 supplemented by a number of understandings of inter-
pretation and decisions), the General Agreement on Trade in Services (GATS), the
Agreement on Trade-Related Aspects ofIntellectual Property Rights (TRIPS), and the
INTERNATIONAL ECONOMIC LAW 701
Dispute Settlement Understanding. The following sections describe each of these
pillars. GATT 1994 has itself been supplemented by twelve international agreements
dealing with trade in goods. Moreover, four Plurilateral Trade Agreements (eg the
Agreement on Trade in Civil Aircraft or the Agreement on Government Procurement)
are administrated by the WTO Secretariat, but do not form part of the WTO as such.
A State or separate customs territory which wants to become a member of WTO
has to accept all agreements and understandings that form the WTo. 15 The terms of
accession must be agreed between the applicant and WTO members and this can be a
lengthy process. 16
The WTO has three main organs: the Ministerial Conference which meets at least
once every two years, the General Council which is composed of representatives of all
members, and the Secretariat, headed by the Director-General (Article IV of the
Marrakesh Agreement). The General Council also operates as the Dispute Settlement
Body and the Trade Policy Review Body. Three councils operate under the general
guidance of the General Council: a Council for Trade in Goods, a Council for Trade
in Services, and a Council for Trade-Related Aspects of Intellectual Property
Rights. Other committees have been established by the Ministerial Conference
such as the Committee on Trade and Development or the Committee on Trade and
Environment.
As was the case with GATT 1947, decision-making is based as far as possible on
consensus. Only if there is no consensus is the matter decided by majority vote
(Article IX para 1 Marrakesh Agreement), although a three-quarters majority is
needed in some cases, such as decisions relating to the interpretation of the WTO
Agreement and multilateral trade agreements (Article IX para 2 Marrakesh Agree-
ment). Each member has one vote, although the European Community is covered by
special provisions. 17
2. Multilateral agreements on trade in goods
The multilateral agreements on trade in goods comprise the GATT 1994.and other
multilateral agreements. As stated above GATT 1994 basically maintained GATT 1947
supplemented by a number of understandings on interpretation' and decisions,
such as the Understanding on the Balance-of-Payments Provisions of the General
Agreement on Tariffs and Trade 1994 or the Understanding in Respect of Waivers of
Obligations under the General Agreement on Tariffs and Trade 1994.
The other twelve multilateral agreements deal with the following matters:
agriculture, sanitary and phytosanitary standards, textiles and clothing, technical
15 Under GATT 1947 and the multilateral trade agreements each State or separate customs territory could
choose which agreements they wished to be a party to.
16 For example, the terms of accession for China and the Separate Customs Territory of Tawain, Penghu,
Kinmen, and Matsu were negotiated over a number of years and they only became WTO members in 2001
and 2002 respectively.
17 When it exercises its right to vote, the EC has a number of votes equal to the number of EC member
States which are WTO members (Article IX para 1 Marrakesh Agreement).
702 GERHARD LOIBL
barriers to trade, trade-related investment measures (TRIMs), customs valuation,
anti-dumping measures, pre-shipment inspection, rules of origin, import licensing
procedures, subsidies and countervailing measures, and safeguards. These agreements
provide detailed provisions which limit members' discretion in implementing GATT
in these areas. Although the WTO allows waivers (ie exceptions to certain obligations)
to be granted. to members by the Ministerial Conference under exceptional cir-
cumstances for a limited period of time and under specific terms and conditions, their
use has been limited compared to GATT 1947. Moreover, waivers are reviewed on a
regular basis. 18
GATT is based on the following main principles:
(i) Most-favoured-nation treatment (Article I); this obliges members to grant
each other unconditional most-favoured nation treatment in their mutual
trade relations, ie any tariff or other concession given by a GATTIWTO mem-
ber to a product originating from or destined for any other country must be
given immediately and unconditionally to like products originating from
or destined for all other members (Janeke, 1992, pp 502, 504; Jackson, 1997,
p 157). However, although WTO members may not discriminate between like
products, this does not mean that products must be treated alike. This depends
on the treatment established by a member for specific products. The meaning
of the term 'like product' has, in general, to be determined on a case-to-case
basis and it has been at the centre of a number of disputes. Factors that have
to be taken into account include the product's end use in a given market,
consumer tastes and habits, or the properties of the product. 19
(ii) National treatment (Article III): WTO members are obliged to treat products
imported from other members on the basis of complete equality with like
products of domestic origin. This should ensure that internal taxes, regula-
tions, and requirements are not used to discriminate against foreign products
and thus to protect domestic products.
(iii) Schedule of Concessions (Article II); although GATT does not prohibit tariffs,
the successive rounds of multilateral trade negotiations have led to a reduction
of tariffs (eg the Uruguay Round led to a 40% reduction of tariffs). These
tariff concessions (the so-called bound rate) are contained in the schedule of
concessions for each member which is annexed to GATT. Members are obliged
to treat other members' products no less favourably than is stated in the
respective schedule.
(iv) Quantitative Restrictions (Article IX): quantitative import or export restric-
tions of any kind (eg import or export quotas, restrictive use of import or
18 Article IX paras 3 and 4 Marrakesh Agreement. See Jackson, 2000, p 55.
19 See United States Standards for Reformulated and Conventional Gasoline, Panel and Appellate Body
Report (1996) and European Communities-Measures Affecting Asbestos and Asbestos-Containing Products,
Panel and Appellate Body Report (2000 and 2001).
INTERNATIONAL ECONOMIC LAW 703
export licences, controls of international payments for imported or exported
products) are generally prohibited because of their possible distorting effect
on the normal flow of trade. Restrictions may be imposed only in accordance
with the conditions set out by GATT.
(v) Transparency (Article X): members are obliged to publish all trade and
trade-related measures to ensure certainty, predictability, and accountability
of governmental measures.
(vi) Exceptions: GATT provides a number of exceptions to the general rule of
liberalization. Article XIX allows emergency action regarding the import of
particular products. Moreover, members may impose restrictions to safeguard
their balance of payments (Article XII). Article XX allows restrictions for
particular purposes, such as the protection of public morals or the protection
of human, animal, or plant life or health.20 Furthermore, Article XXI permits
restrictions pertaining to national security.21 Under Article XXV para 5
members may vote to waive certain obligations of a member.22 Article XXIV
provides exceptions for free-trade areas and customs unions, thus allowing
preferential treatment between members of such special agreements (eg
European Community, Mercosur, or NAFTA).
(vii) Specific provisions on developing countries: already in the 1950s changes
beneficial to developing countries were introduced to GATT 1947 and in 1965
Part IV on Trade and Development was added to the Agreement. The concepts
of differentiated and more favourable treatment for developing countries and
the principle of non-reciprocity in trade negotiations were further elaborated
in 1979 by the so-called 'enabling clause'. This provides the legal basis for the
Generalised System of Preferences (ie that developed countries give developing
countries non-reciprocal preferential treatment for products originating
from them) and the Global System of Trade Preferences (ie, that developing
countries exchange trade concessions among themselves).23
20 See eg Tuna/Dolphin cases and Shrimp/Turtle case. The relationship between trade and environment
has been discussed intensively in the last decades both in practice and academic writings. See Schoenbaum,
1997; Brown-Weiss and Jackson, 2001; McRae, 1996 at p 194.
21 Although Article XXI (National security) has been invoked by members it has never been scrutinized
in dispute settlement proceedings. For example the USA invoked Article XXI as a justification for the
Helms-Burton Act, which enables claimants to sue before US courts third-country nationals 'trafficking' in
Cuban property formerly owned by US nationals. A solution was found between the European Community
and the USA without having resort to the WTO dispute settlement procedures «(1997) 36 ILM 529ff.)
CfReiterer, 1997.
22 Cf also Article IX paras 3 and 4 Marrakesh Agreement and the 1994 Understanding in Respect of
Obligations under the General Agreement of Tariffs and Trade. Such waivers were granted to the European
Community regarding the transitional regime for the EC autonomous tariff rate quotas on the import of
bananas «2002) 41 ILM 770ff) and regarding the ACP-EC partnership agreement «2002) 41 ILM 767ff)
by the Doha Ministerial Conference 2001.
23 CfHudec, 1987; Cassese, 2001, p 407.
704 GERHARD LOIBL
3. General Agreement on Trade in Services (GATS)
The growing importance of services for the world economy led to the conclusion of
GATS, which provides for a liberalization of trade in services. Its structure is similar to
GATT. GATS consists of a framework agreement and annexes, schedules of specific
commitments, and the list of exemptions submitted by member countries.
According to GATS Article I para 2:
trade in services is defined as the supply of services:
(a) from the territory of one Member into the territory of any other Member;
(b) in the territory of one Member to the service consumer of any other Member;
(c) by a service supplier of one Member, through commercial presence in the territory of
any other Member;
(d) by a service supplier of one Member, through presence of natural persons of a
Member in the territory of any other Member.
The general obligations of GATS, such as the most-favoured-nation treatment (Article
II) and transparency on measures taken by a country that could affect trade in services
(Article III), apply to all services. Exemptions are only possible if requested before
GATS entered into force. New exemptions are only granted to new members at the
time of their accession, and to existing members by waiver under the WTO Agree-
ment. All exemptions are subject to review and should, in principle, last no longer
than ten years. Restrictions to safeguard the balance of payments may be taken if there
are-or threaten-serious balance-of-payments and external financial difficulties.
GATS also provides general and security exemptions similar to GATT Articles XIX
and XX (the protection of public morals or for the protection of human, animal, or
~lant life and health). Finally, GATS allows members to enter into economic integra-
hon agreements or to mutually recognize regulatory standards in accordance with
certain conditions.
S~ecific obligations for liberalizing trade in services are contained in country-
speCIfic schedules. These list services for which market access and national treatment
are guaranteed and limitations which may be attached, concerning, for example, the
number of service operations or employees in a sector, the value of transactions,
or the legal form of the service supplier. The scope of these individual country
schedules may vary widely between members. Some may contain only few services,
others concern over 120 types of services. Additional sector-specific commitments
can be the subject of protocols negotiated between WTO members and such protocols
have been concluded on financial serVices (1995 and 1997), basic telecommunications
(1997), and the movement of natural persons (1995).
4. Agreement on Trade Related Intellectual Property Rights (TRIPS)
The TRIPS Agreement links the international trading system to the legal provisions
laid down by international agreements on intellectual property rights, such as the
INTERNATIONAL ECONOMIC LAW 70 5
Paris and Berne Conventions administered by the World Intellectual Property Rights
Organization (WIPO). The TRIPS Agreement provides for the application of the
principle of national treatment and the most-favoured-nation treatment and sets
standards concerning the availability, scope, and use of intellectual property rights.
The categories of intellectual property rights covered by the TRIPS Agreement are:
copyright and related rights, trademarks, geographical indications, industrial designs,
patents, and the protection of undisclosed information. Furthermore, the TRIPS
Agreement provides standards for the enforcement of intellectual property rights by
means of civil and administrative procedures and remedies as well as criminal
procedures.
5. Trade Policy Review Mechanism (TPRM)
The purpose of the TPRM is to improve adherence by all members to rules,
disciplines, and commitments made under the Multilateral Trade Agreements and,
where appropriate, the Plurilateral Agreements by achieving greater transparency in,
and understanding of, the trade policies and practices of WTO members. Reviews
take place at regular intervals based on the reports ofWTO members (every two years
for the USA, the EC, Japan, and Canada, every four years for other industrialized
countries and every six years for all other members).
6. Dispute Settlement Understanding (DSU)
The DSU builds on the experience of GATT 1947. Dispute settlement under
GATT 1947 was centred on the use of ad hoc panels consisting of three or
five individuals. Although quite successful, decisions had to be taken by co~sensus
by all GATT contracting parties, including the parties to the dispute who could
therefore delay or even block the decision-making process. This led some parties to
take unilateral measures. Furthermore, there was no time frame for the decision-
making process. The DSU strengthened the rule of law in the world trading
system by setting strict time limits for the different stages of the dispute settle-
ment process, by providing for a negative consensus and by obliging parties to
refrain from taking unilateral measures (see Petersmann, 1997; Merrills, 1998,
p 197).
If a dispute arises between WTO members, obligatory consultations must take
place. If no solution is achieved within sixty days, any party to the dispute may
request the establishment of a panel. The Dispute Settlement Body (DSB, consisting of
representatives of all WTO members) must then establish a panel unless it decides
otherwise by consensus. A panel consists of three individuals agreed upon by the
parties concerned. If the parties cannot agree on the composition of the panel within
twenty days, the Director-General appoints the panel members after consultations.
The panel makes an objective assessment of the matter, based on the submissions of
the parties to the dispute and of other members having a substantial interest in the
matter before the panel as well as upon information and technical advice sought by
the panel itself (DSU Article 13). The panel produces a report containing its findings
 706 GERHARD LOIBL
and recommendations to the DSB within six months. 24 The report is adopted by the
DSB unless it decides not to do so by consensus (negative consensus) or unless a party
to the dispute appeals to the Standing Appellate Body. The latter shall deliver its
report on legal issues arising from the panel report within ninety days. The Appellate
Body's report is itself to be adopted by the DSB unless it decides otherwise by
consensus.
The reports have to be implemented by the parties, normally within fifteen
months, under the surveillance of the DSB. If there are disagreements on the measures
taken in implementing the panel report, these are themselves to be decided through
the dispute settlement procedures, including resort to the original panel. The DSB
may authorize countermeasures (by the affected party), including compensation or
the suspension of concessions or other obligations, if the report is not implemented.
Disputes concerning the scope of countermeasures are to be referred to arbitration,
conducted either by the original panel or by an arbitrator appointed by the Director-
General, within sixty days. All these dispute settlement procedures were used in the
Bananas 25 and Beef Hormones cases,26 which also showed the shortcomings of the
DSU system, including, for example, a lack of clarity concerning the exact point at
which countermeasures might be authorized.
Under the DSU, any WTO member may intervene in proceedings if its interests are
affected. In recent years the question has been debated if other entities, such as NGOs,
may make submissions. The DSU does not address this and although the Appellate
Body allowed this in the Shrimp- Turtle case, the DSB has requested caution in this
regard (WIrth, 2002, pp 437-439).
The Beef Hormones cases brought by the USA, and subsequently Canada, against
the European Community illustrate both the operation of the WTO dispute settle-
ment system, its effectiveness, and its shortcomings. In accordance with Article 4 DSU
and relevant provisions of other WTO Agreements, the USA requested consultations
with the EC in January 1996 (Canada in June 1996) concerning an EC import ban on
meat and meat products from cattle to which either natural or synthetic hormones
had been administrated for growth purposes. Australia, New Zealand, and Canada
requested to join these consultations. Joint consultations were held in March 1996
(Canada in September 1996) but reached no result. In April 1996 the United States
requested that a panel be established with standard terms of reference pursuant to
DSU Article 6 and in May 1996 (Canada in October 1996) a panel was established and
its composition agreed upon in early July 1996 (Canada and the EC subsequently
agreed to its panel having the same composition as that set up with the USA). The
panel met several times with the parties to the dispute and consulted scientific and
24 The panel may inform the DSB in writing that it needs more time but the maximum period from the
establishment of the panel to the circulation of its report is nine months (DSU Article 12(9)).
25 Case concerning European Communities-Regime for the Importation, Sale and Distribution of Bananas.
26 Case concerning European Communities-Measures Concerning Meat and Meat Products (Hormones).
INTERNATIONAL ECONOMIC LAW 707
technical experts. Final reports were provided to the parties on 30 June 1997 and to
the WTO members on 18 August 1997. 27 In accordance with DSU Article 12(9) the
DSU had previously informed the DSB that the report would take more than six
months to produce.
Both the EC and the USA and Canada notified the DSB that, pursuant to DSU
Article 16.4, they would appeal certain issues oflaw addressed in the panel reports (24
September 1997 and 9 October 1997, respectively) and Australia, New Zealand, and
Norway filed separate third participants' submissions. All submissions were heard by
the Appellate Body on 4 and 5 November 1997 and its report28 (along with the panel
reports, as modified by the Appellate Body report) were adopted by the DSB on 13
February 1998. One month later, on 13 March 1998 the EC informed the DSB, pursu-
ant to DSU Article 21.3, that it intended to fulfil its obligations, that it had initiated
the process to examine the options for compliance with a view to implementation in
as short a period of time as possible, and that it would require a 'reasonable period of
time' for this process. Consultations were held between the EC, the USA, and Canada
on 26 March 1998 and further written communications between the parties failed to
resolve the issue of what constituted a 'reasonable period of time' and so on 8 April
1998 the EC requested that the 'reasonable period of time' be determined by binding
arbitration in accordance with DSU Article 21.3(c). As no agreement on the appoint-
ment of an arbitrator was reached within ten days, an arbitrator was appointed by the
Director-General who then determined that the 'reasonable period of time' would
expire on l3 May 1999 (fifteen months after the adoption of the reports by the
DSU).29
The USA informed the DSB on 17 May 1999 that the EC had failed to implement
the recommendations and rulings of the DSB with respect to its hormones measures
by 13 May 1999 and requested authorization to suspend the application of tariff
concessions and related obligations under the GATT 1994 towards the EC and its
member States, covering US$202 million worth of trade, a sum equal to the loss in US
exports consequent upon the ban. The EC objected to the magnitude of the proposed
suspensions and requested that the matter be referred to arbitration pursuant to DSU
Article 22.6. The arbitration was carried out by the original panel, which determined
the level of nullification or impairment suffered by the USA to be US$116.8 million
per year and that the USA could take suspensive measures to that amount,30 this being
subsequently authorized by the DSB in accordance with DSU Article 22.7. Thus
although the dispute settlement proceedings did not lead to a settlement as such
within the time period set by the DSU, a solution was found that avoided a 'trade war'
between disputants.
27 CfUS Panel Report (WT/DS26IRJUSA) and Canada Panel Report (WT/DS48/RJCAN).
28 Report of the Appellate Body (WT/DS26/AB/R and WTIDS48/AB/R dated 16 January 1998).
29 Arbitration under Article 2 1.3 (c) DSU (WT/DS26/15 and WT/DS48/13 dated 29 May 1998).
30 Decision by the Arbitrators under DSU Article 22.6 (WTIDS26/ARB dated 12 July 1999).
708 . GERHARD LOIBL
7. Concluding remarks
Although the WTO established a comprehensive international legal and institutional
framework for international trade, a number of issues remain to be addressed. Some
further areas might become subject to new agreements, such as foreign investment
and international competition rules. Furthermore, human rights, social, health, and
environmental standards will become central issues in negotiations for further
development of the international trade system. 31 Thus, the WTO needs to cooperate
closely with other international organizations and institutions (such as the Inter-
national Labour Organization) dealing with these matters. The Ministerial Con-
ference, held in Doha, Qatar in 2001, has made development issues a central topic for
the further development of WTO law.32 Although the GATT/WTO legal system
has been altered to take account of the concerns of developing countries, further
changes are necessary to address their specific needs. The WTO will need to succeed
in its efforts to include these new issues within its legal framework if it is to be
able to establish a stable and predictable system for international trade relations in the
future.
C. INTERNATIONAL COMMODITY AGREEMENTS
Specific rules have been established regarding the production of and international
trade in commodities, that is, primary commodities or raw materials (Article XXCh)
GATT). These products provide an important source of export earnings for the great
majority of developing countries but price fluctuations hamper their long-term
economic planning activities. Therefore, international agreements have been set up
which a~ to secure stable prices and demand, assist in establishing predictable
incomes for developing countries, and secure supplies for the consumer countries.
Such arrangements have been concluded for a number of commodities, including
wheat, coffee, cocoa, olive oil, and tin. These agreements last for specific time
periods-the International Coffee Agreement 2001, for example, has a duration of six
years-so they can be modified periodically to reflect changing economic conditions.
International commodity agreements should not be seen as instruments to bolster
prices, but rather as mechanisms designed to stabilize prices without distorting
long-term market trends.
A number of market regulation mechanisms have been developed, the most
prominent being buffer stocks and export quotas. Buffer stocks aim at ensuring that
the price remains within a given price range by selling when the market price exceeds
the maximum intervention price and by buying when the price falls below the
minimum price. A system of export quotas for producers might be combined with a
31 Eg the implications of the principle of precautionary approach as stated in the 1992 Rio Declaration on
Environment and Development already gave rise to a number of controversies between WTO members.
32 See in particular paras 38-44 of the Work Programme adopted by the Fourth WTO Ministerial
Conference in Doha, Qatar, 2001 (2002) 41 ILM 746.
INTERNATIONAL ECONOMIC LAW
buffer stock. Such mechanisms were used in a number of commodity agreements in
the 1960s and 1970s (eg tin, sugar, and coffee). At first, buffer stocks were financed by
the producers but in the 1970s consumer countries agreed to contribute, because
they benefited from the buffer stocks as well. However, the failure of the sixth Inter-
national Tin Agreement in 1985 due to insolvencf3 led to a change of the structure of
international commodity agreements.
Today's agreements do not contain market intervention mechanisms but have
set new objectives. The 2001 International Coffee Agreement has the following aims:
to encourage members to develop a sustainable coffee economy, promote coffee con-
sumption, promote quality, provide a forum for the private sector, promote trading
and information programmes designed to assist the transfer of technology relevant
to member countries, and analyse and advise on the preparation of projects to the
benefit of the world coffee economy. Similar objectives are set out in the 2001 Sixth
International Cocoa Agreement and the 1994 International Tropical Timber
Agreement.
All international commodity agreements set up at least one organ: a council
comprising representatives of all member countries. Voting under international
commodity agreements is based on weighted votes. Both producer and consumer
countries are given an equal number of total votes, normally 1,000 votes. Each mem-
ber is given a basic number of votes and the remaining votes are distributed according
to the percentage of imports or exports during a reference period. Decisions and
recommendations are adopted by a distributed simple majority, ie a simple majority
of both producer and consumer countries, although some decisions might require a
two-thirds majority of both producer and consumer countries. To be effective, such
agreements need a minimum membership which represents a considerable per-
centage of both producers and consumers. For example, Article 45 of the 2001 Inter-
national Coffee Agreement provides that the agreement only enters into force when
at least fifteen exporting members holding at least 70% of the votes of the exporting
members and at least ten importing members holding at least 70% of the votes of
the importing members have deposited instruments of ratification, acceptance, or
approval.
The practical impact of international commodity agreements has decreased
in recent years. This is evident not only from the decline in market regulation
mechanisms used in such agreements but also from the decreasing number of such
agreements. For example the International Rubber Agreement was suspended in 1999
by the International Rubber Council after a number of the main producing countries
withdrew from the Agreement. Thus, as the example of the 2001 Cocoa and Coffee
33 The International Tin Council was set up as an agreement between producer and consumer States and
had a buffer stock of 50,000 tons and operated a system of export controls. It failed because major producer
and consumer States did not become parties to the agreement and because the Tin Council had to buy large
quantities of tin on the international market in order to ensure a stable market price. In 1985 its financial
resources were exhausted and it had borrowed £900 million from banks and brokers. For further details on
the collapse of the ITC see McFadden, 1986.
710 GERHARD LOIBL
Agreements shows, the direct influence of such agreements on the market will be
comparatively limited in future. Their main aim is to encourage cooperation not only
between governments, but also to include the private sector in their efforts to promote
the commodity in question. Furthermore, projects to improve the quality of the
commodity, to combat diseases, and to diversify products aim at assisting developing
countries in their efforts to achieve sustainable development.
In 1989 the Agreement Establishing the Common Fund for Commodities entered
into force. The Agreement was negotiated in the United Nations Conference on Trade
and Development (UNCTAD). The Fund, in line with its market-oriented approach,
concentrates on commodity projects financed from its resources. These projects aim
at improving the structural conditions in markets and at enhancing the long-term
competitiveness and prospects of particular commodities. Commodity producers
in developing countries and countries in transition are assisted in transforming
regulated into liberalized market systems. The Fund currently concentrates on com-
modities which are of interest to Least Developed Countries. It also closely cooperates
with the institutions established by the international commodity agreements.
In addition to international commodity agreements, international commodity
cartels have also been established. Their membership comprises countries producing
a given commodity. The most well-known example is the Organization of Petroleum
Exporting Countries (OPEC), which was set up in 1960 and which plays an important
role in determining global oil supply and prices. The effectiveness of such organiza-
tions largely depends on the percentage of market supply controlled by members and
the degree of cooperation achieved between them.
IV. INTERNATIONAL INVESTMENT LAW
A. INTRODUCTION
The expansion of western economies since the nineteenth century has resulted in
considerable levels of investments in other States, both developed· and developing.
But the degree of control over local economies that follows from this has given rise to
conflicts between capital exporting and capital importing countries. On the one hand,
capital exporting countries require protection and security for the investments made
by their nationals, whilst, on the other hand, the capital importing countries demand
the ability to regain or retain control over certain (key) parts of their economies and
numerous countries, both developing and developed, have expropriated foreign
property to achieve this (Shaw, 1997, p 573).
Under customary international law, expropriation of foreign property is legitimate
if it takes place under certain conditions: the expropriation must be in the public
interest, without discrimination on the: basis of nationality and be accompanied
by the payment of appropriate compensation. In the last decades the amount of
INTERNATIONAL ECONOMIC LAW 711
compensation to be paid by the expropriating State has been a source of controversf4
between developed and developing countries. UNGA Resolution 1803 (XVII) 1962
on permanent sovereignty over natural resources states that appropriate compensa-
tion has to be paid, whereas UNGA Resolution 3281 (XXIX) 1974, the Charter of
Economic Rights and Duties of States, adopted in the General Assembly against the
votes of the OECD member countries, provides that appropriate compensation
should be paid and that disputes are to be settled by the tribunals of the nationalizing
State applying its domestic law, unless it is freely and mutually agreed otherwise by all
States concerned. Against this, a number of capital exporting countries have argued
that compensation should be prompt, adequate, and effective, the so-called Hull
Formula. 35
In recent years, issues concerning establishment in a host country have also
become a focal point in efforts to promote foreign direct investment. Under cus-
tomary international law the host country determines the conditions of establish-
ment of foreigners within its territory. The resulting legal uncertainties led to calls for
new legal instruments to encourage investment flows between countries and a num-
ber of instruments have been developed to create a favourable investment climate
under public international law: bilateral investment treaties (BITs), investment insur-
ance schemes, and investment dispute settlement mechanisms. Moreover, multilateral
instruments such as GATS, TRIMS, and TRIPS also address investment issues.
B. DEFINITION OF INVESTMENT
The term investment in international law should be understood in a very broad way
as it comprises all kinds of assets, including all categories of rights and interests.
Most BITs include elaborate descriptions of investments, although such descriptions
are themselves non-exhaustive. An example of a definition of investment may be
found in Article l(a) of the 1989 Agreement between the Russian Federation and
the UK: 36
the term investment means every kind of asset and in particular, though not exclusively,
includes:
(i) movable and immovable property and any other related property rights such as
mortgages;
(ii) shares in, and stocks, bonds and debentures of, and any other form of participation
in, a company or business enterprise;
(iii) claims to money, and claims to performance under contract having a financial
value;
34 Eg Texaco Overseas Petroleum Company v Libyan Arab Republic (1977), 53 ILR 389.
35 On the issue of expropriation of foreign property and case law see Brownlie, 1998, p 533; Shaw,
1997, p 573.
36 (1990),29 ILM 366.
712 GERHARD LOIBL
(iv) intellectual property rights, technical processes, know-how and any other benefit or
advantage attached to a business;
(v) rights conferred by law or under contract to undertake any commercial activity,
including search for, or the cultivation, extraction or exploitation of natural
resources.
C. BILATERAL INVESTMENT TREATIES
Bilateral investment treaties aim to encourage and protect investments in the territor-
ies of the contracting States. The first bilateral investment agreement was concluded
between Germany and Pakistan in 1959 since which time their number has increased
enormously: Germany has concluded more than 110 BITS, the UK over eighty, France
more than sixty, and the USA around forty. BITS have been concluded between
developed and developing countries, but in recent years also between developing
countries. 37 In general, BITs provide that nationals and companies of the State parties
should enjoy non-discriminatory treatment, protection, and security, prompt,
adequate, and effective compensation in the event of expropriation, and freedom
from currency transfer restrictions.
The USA started to conclude BITs in the early 1980s. However, it had already begun
to enter into Friendship, Commerce and Navigation (FCN) Treaties in the1920s and
concluded such treaties with most developed countries. But developing countries
were reluctant to accept such a comprehensive liberalization of economic relations.
Therefore the USA followed the example of the European countries by concluding BITs
that are limited to the promotion and protection of investments.
Most BITs are based on a OECD model agreement developed in the 1960s and
further elaborated since. Their importance is underlined by the fact that the African
Asian Legal Consultative Committee (AALCC) has also elaborated several models
for BITs which follow a similar pattern to the OECD model, although the AALCC
models put more emphasis on the promotion of investments (Dolzer and Stevens,
1995, p 5).
Efforts to ensure stable conditions for foreign investments in the energy sector
within the territory of the former Soviet Union led to the conclusion of the 1994
Energy Charter Treaty.38 This comprehensive multilateral agreement establishes a
non-discriminatory investment, trade, and transit regime for the energy sector
(Walde, 1996, p xx). Similar provisions to those contained in BITs are also found in
Chapter XI of the North American Free Trade Agreement (NAFTA) between Canada,
Mexico and the USA (Sacerdoti, 1997, p 333).
Although BITs do not conform to a common standard, they do have a number
of common features and tend to address the following issues (Sacerdoti, 1997, p 298;
Sornarajah, 1994, p 277):
37 Eg China has concluded BITs with the central Asian republics.
38 (1995) 34 ILM 360.
INTERNATIONAL ECONOMIC LAW
- The definition of the investor. the main question here concerns whether the treaty
protects companies that have been established under the law of the host State but
which are owned by nationals of the other party.
Conditions for admission of investments: although BITs do not establish a right
to invest in the territory of a State, a number of BITs provide that invest-
ments should be admitted in accordance with the State's legislation and that
favourable conditions for investments should be created. Earlier BITs required
foreign investments to fit into national development plans and underlined
the need for specific approval by the host State authorities (Sacerdoti, 1997,
pp 328-329).
Treatment of investments: BITs provide standards regarding the treatment of
foreign investments reflecting the following principles:
fair and equitable treatment
full protection and security
- non-discrimination
national treatment
most-favoured nation treatment.
In general, BITs provide for a combination of these standards, eg the obligation
to provide fair and equitable treatment is combined with the principle of non-
discrimination, and national treatment is combined with most-favoured-nation
treatment. Recent agreements have extended these treatment standards also to
the pre- and post-establishment phases. 39
Protection against political risks: explicit provisions provide that if expropriation
occurs, compensation shall be paid according to the Hull Formula. Furthermore,
transfer restrictions are only permitted in cases of emergency.
Dispute settlement provisions: BITs provide for dispute settlement mechanisms
both between the States party to the BIT and between the host State and the
foreign investor. As regards dispute settlement between the States, traditional
patterns of dispute settlement are envisaged. 40 For dispute settlement between the
host State and the foreign investor, most BITs provide that the foreign investor
may choose from the following possibilities:
- settlement before a court of the host State;
arbitration through ICSID; and
arbitration using the UNCITRAL rules of arbitration.
39 See Salacuse, 1996, p 335. CfUNCTAD Series on issues in international investment agreements.
40 Cf Article 33 of the UN Charter.
714 GERHARD LOIBL
D. IS THERE A NEED FOR A MULTILATERAL
INVESTMENT AGREEMENT?
So far efforts to create a multilateral agreement on the promotion and protection
of foreign investments on a global level have failed. The most recent effort was under-
taken within OECD. The negotiations on a Multilateral Agreement on Investment
(MAl) aimed to provide high standards for the liberalization of investment regimes
and investment protection between the OECD member countries and, eventually,
other interested non-OECD member States. But the negotiations on the MAl were
suspended and finally discontinued as a number of key issues could not be solved
during the negotiations, chiefly concerning the definition of investment, exceptions to
national and most-favoured-nation treatment, intellectual property rights, the cul-
tural exception clause, labour and environmental issues, regulatory takings, and the
settlement of disputes. This was partly due to the opposition ofNGOs (trade unions,
environmental groups, and human rights groups) and partly due to the lack of sup-
port by the business community since the MAl failed to offer any significant shift
towards liberalization. Proposals have recently been put forward to establish a multi-
lateral framework for foreign investments within the WTO, but no consensus has
been reached on this issue (Sacerdoti, 1997, p 297).
E. INVESTMENT INSURANCE SCHEMES AT THE NATIONAL LEVEL
In order to provide security for investors against the political risks involved in
investing in other countries, a number of capital exporting countries have estab-
lished national investment insurance schemes. The risks covered are: expropriation,
transfer restrictions, and war or civil unrest. Most industrialized countries----'and
some newly industrialized countries, such as Malaysia-provide insurance schemes
against political risks (Loibl, 1987, pp 102-115). In the United Kingdom the Export
Credits Guarantee Department (a separate Department of the British Government)
provides political risk insurance for UK investors. In the United States the Overseas
Private Investment Cooperation (a US government agency) assists US private inves-
tors overseas. Political risk insurance coverage is also offered by a number of insur-
ance companies. Various efforts have been undertaken at the regional and inter-
national level to establish such investment insurance schemes, eg by OECD and the
European Community, but these were unsuccessful. The only regional investment
insurance scheme currently in existence is the Inter-Arab Investment Guarantee
Corporation.
F. THE MULTILATERAL INVESTMENT GUARANTEE AGENCY (MIGA)
The idea of establishing a multilateral investment insurance agency dates back to
the 1950s. In 1985 international efforts resulted in the adoption of an agreement
on the establishment of the Multilateral Investment Guarantee Agency (MIGA) under
INTERNATIONAL ECONOMIC LAW
the auspices of the World Bank which entered into force in 1988 and currently has 158
parties. Article 2 provides that MIGA's objective is to encourage the flow of invest-
ments for productive purposes among member countries, and in particular to devel-
oping member countries, thus supplementing the activities of the IBRD, the IFC, and
other international development finance institutions. The organizational structure of
MIGA follows that of the other World Bank institutions. Although MIGA could have
its own President and Board of Directors, these roles have, so far, been undertaken
always by the President and Directors of the World Bank.
MIGA issues guarantees, including co-insurance and reinsurance, against non-
commercial risks concerning investments in a developing member country that flow
from other member countries and promote investments. According to MIGA
Article l1(a) the following political risks may be covered:
Currency transfer. any introduction attributable to the host government of
restrictions on the transfer outside the host country of its currency into a freely
usable currency or another currency acceptable to the holder of the guarantee,
including failure of the host government to act within a reasonable period of
time on an application by such holder for such transfer;
Expropriation and similar measures: any legislative action or administrative
action or omission attributable to the host government which has the effect
of depriving the holder of a guarantee of his ownership or control of, or
a substantial benefit from his investment, with the exception of non-
discriminatory measures of general application which governments normally
take for the purpose of regulating economic activity in their territories;
Breach of contract. any repudiation or breach by the host government of a
contract with the holder of a guarantee, when (a) a holder of a guarantee does
not have recourse to a judicial or arbitral forum to determine the claim of
repudiation or breach, or (b) a decision by such forum is not rendered within a
reasonable period of time as shall be prescribed in the contracts of guarantee
pursuant to the Agency's regulations, or (c) such a decision cannot be enforced;
and
War and civil disturbance: any military action or civil disturbance in any territory
of the host country to which the Convention applies.
MIGA only guarantees investments in developing countries and certain transition
countries (Article 14) and the host government must approve the issuance of the
guarantee by the Agency against the risks to be covered (Article 15). If compensation
is paid by MIGA to a holder of a guarantee, any rights that that holder may have
against the host country or others pass to the Agency (Article 18). Furthermore,
Article 23 determines that MIGA is to carry out research, undertake activities to
promote investment flows, and disseminate information on investment opportunities
in developing countries, with a view to improving the environment for foreign
investment flows to such countries.
 GERHARD LOIBL
Contrary to initial speculation, there has been a high demand for MIGA's services
and this continues to rise with the growth of foreign direct investment to developing
countries and to countries in transition.
G. INVESTMENT DISPUTE SETTLEMENT MECHANISMS
There is a long history of settling disputes between foreign investors and host coun-
tries by mixed arbitration, ie arbitration between a State and a non-State entity. The
most well-known mixed arbitration mechanism established, on a permanent basis, to
deal with investment disputes is the International Centre for the Settlement of
Investment Disputes (ICSID). The convention creating ICSID was elaborated under
the auspices of the World Bank, was opened for signature in 1965, entered into force
in 1966, and currently has 134 States as parties.
ICSID is not a tribunal itself, but rather a framework within which arbitration and
conciliation can occur (Collier and Lowe, 1999, p 60). Each member State has one
vote in the Administrative Council which is chaired by the President of the World
Bank. The Administrative Council supervises the operation ofICSID and adopts rules
of procedure for conciliation and arbitration. The ICSID secretariat screens requests
for arbitration in order to ensure that they are not manifestly outside the jurisdiction
of ICSID and it also provides institutional support.
ICSID Article 25 (1) provides that:
The jurisdiction of the Centre shall extend to any legal dispute arising out of an investment,
between a Contracting State (or any constituent subdivision or agency of a Contracting
State designated to the Centre by that State) and a national of another Contracting State,
which the parties to the dispute consent in writing to submit to the Centre. When the parties
have given their consent, no party may withdraw its consent unilaterally.
Thus ICSID jurisdiction is limited to legal disputes arising out of an investment
dispute. Moreover, both the home State of the foreign investor and the host State must
be parties to the Convention, and the parties to the dispute must have given explicit
agreement to ICSID arbitration. The latter consent may be given in various forms,
eg in a concession agreement between the host State and the foreign investor, in a
bilateral investment agreement41 or in the investment laws of the host State. However,
an Additional Facility has extended the jurisdiction of ICSID to non-investment
disputes and to disputes in which only the host State or the State whose national is the
other party to the dispute is a party to the ICSID Convention. Moreover, a fact-finding
procedure has been established.
ICSID maintains lists of persons who may serve as conciliators or arbitrators.
If a request for arbitration is made, the parties to the dispute choose an uneven
number of arbitrators and the persons to act as arbitrators. If the parties do
41 Eg Article 8 of the Argentine-French BIT and Campania de Aguas del Aconquija, SA & Compagnie
Generale des Eauxv Argentine Republic, Case No ARB/97/3.
INTERNATIONAL ECONOMIC LAW 717
not appoint the arbitrators within the set time, they are appointed by the ICSID
Chairman. 42
Arbitration awards are not subject to judicial review by national courts (Article 53)
although they could be subject to an internal annulment procedure through an
ad hoc ICSID Committee (Article 52).43 Each contracting party is obliged to recognize
awards as binding and to enforce pecuniary obligations imposed by awards within its
territories as if it were a final judgment from a court in that State (Article 54).
ICSID has been used to solve a growing number of investment disputes. Its success
is closely linked to the growth of BITs, since most of these treaties specify ICSID as an
alternative for the settlement of investment disputes. Thus an effective mechanism
has been established to settle disputes between foreign companies and host States. 44
This has helped to depolitize conflicts between capital exporting and capital
importing countries since the home State of the foreign investor is no longer drawn
directly into the dispute, and it is left to the investor and the host country to settle
their differences by judicial means.
V. REGIONAL ECONOMIC
INTEGRATION ARRANGEMENTS
Since the end of the Second World War the number of regional economic arrange-
ments has grown steadily in all parts of the world. Although they differ greatly in
their institutional structure and in the range of economic activities covered, most
have followed the example of European regional cooperation and integration by first
concentrating on establishing free trade areas or customs unions for trade in goods.
Only at a later stage in their evolution are other areas of economic activity, such as
trade in services and investment issues, subjected to regulation at the regional level.
The success of these organizations in ensuring closer economic cooperation and
integration differs. Some, such as the European Community or the North American
Free Trade Area, have reached a high degree of integration of their member States'
economies, whereas others have not yet achieved this.
VI. CONCLUDING REMARKS
As international economic relations have expanded in the last decades other areas of
international relations have become increasingly important. Discussions concerning
42 According to Article 5 the President of the World Bank is ex officio ICSID Chairman.
43 Such annulment procedures have been very rare in practice. An example is Amco Asia Corp v Republic of
Indonesia, Case No ARB/81/I.
44 For ICSID cases see the website of ICSID (most cases are made public), the ICSID Review, and the
Foreign Investment Law Journal.
718 GERHARD LOIBL INTERNATIONAL ECONOMIC LAW 719

the inter-relationship between international economic law and human rights as JANEKE, G (1995), 'General Agreement SCHOENBAUM, T (1997), 'International
well as international environmental law have made it clear that these areas can no on Tariffs and Trade (1947)', II EPIL Trade and the Protection of the En-
longer be separated. Recent developments in the area of international financial 502-510. vironment. The Continuing Search
law, international trade law, and investment law demonstrate that other areas of KRUGMAN, Rand OBSTFELD, M (2000), for Reconciliation', 91 AlIL 268-313.
international regulation have a decisive influence on international economic law. International Economics- Theory and SHAW, MN (1997), International Law, 4th
Moreover, international economic law is more and more addressing development Politics, 5th edn (Reading, Mass: Addison- edn (Cambridge: Cambridge University
concerns. In some areas specific rules have been elaborated to deal with the needs Wesley Publishing). Press).
of the developing countries whilst the World Summit for Sustainable Development LOIBL, G (1987), 'Foreign Investment Insur- SHIHATA, I (1998), 'The World Bank's Con-
in Johannesburg in 2002 has underlined the need to address international ance Systems', in Dicke (ed.), 102, 115. tribution to the Development of Inter-
economic issues in a broader context in order to achieve sustainable development. national Environmental Law', in Hafner, G
- - (1998), 'The World Bank Group and
International economic law can no longer be seen in isolation from other areas et al. (eds), Liber Amicorum for Professor
sustainable development', in Weiss,
of international law. Denters, and de Waart (eds), pp 513-532. Ignaz Seidl-Hohenveldern (The Hague:
Kluwer), pp 631-657.
McFADDEN, 1M (1986), 'The Collapse of the
Tin: Restructuring a Failed Commodity (2000), World Bank Inspection Pane~
Agreement', 80 AJIL 811-830. 2nd edn (Oxford: Oxford University
REFERENCES Press).
McRAE, DM (1996), 'The Contribution
AMERICAN LAW INSTITUTE (1987), Restate- of International Trade Law to the - - (2001), 'Techniques to Avoid Prolifer-
DENTERS, E (1996), Law and Policy of IMF
ment of the Law of the Foreign Relations Conditionality (The Hague: Kluwer Law Development of International Law', 260 ation of International Organisations-
Law of the United States (St Paul, Minn.: International) . Recueil des Cours 99. The Experience of the World Bank',
American Law Institute Publishers). MERRILLS, JG (1998), International Dispute in Blokker and Schermers (eds),
DICKE, DC (ed.) (1987), Foreign Investment Settlement, 3rd edn (Cambridge: Cam- pp 111-134.
BROWNLIE, I (1998), Principles of Public
in the Present and a New International bridge University Press). SORNARAJAH, M (1994), The International
International Law, 5th edn (Oxford:
Economic Order (Fribourg: University Law on Foreign Investment (Cambridge:
Oxford University Press). PETERSMANN, E (1997), The GATT/WTO
Press). Cambridge University Press).
BLOKKER, NM and SCHERMERS, HG (eds) Dispute Settlement System (The Hague:
(2001), Proliferation of International DOLZER, R and STEVENS, M (1995), Bilateral Kluwer Law International). WALDE, T (ed.) (1996), The Energy Charter
Organizations (The Hague: Kluwer Law Investment Treaties (The Hague: Kluwer QUERESHI, AH (1999), International Treaty, An East- West Gateway for Invest-
International) . Law International). Economic Law (London: Sweet & ment and Trade (The Hague: Kluwer Law
ETHEIR, WJ (1993), Modern International Maxwell). International).
CARREAU, D and JULLIARD, P (1998), Droit
International Economique, 4th edn Economics, 2nd edn (New York: WW REITERER, MA (1997), 'Article XXI GATT - WEISS, E and JACKSON, JH (eds) (2001),
(Paris: Librairie generale de droit et de Norton _l}A Co). Does the National Security Exception Reconciling Environment and Trade
jurisprudence) . GOLSONG, H (1995), 'International Finance Permit "Anything Under the Sun"?', (New York: Transnational Publishers).
Corporation', in Bernhardt, R (ed.), 2 Austrian Rev of Int'l and European L WEISS, F, DENTERS, E, and DE W AART, P
CASSESE, A (2001), International Law
Encyclopaedia of Public International Law, 191-212. (eds) (1998), International Economic Law
(Oxford: Oxford University Press).
vol II (Amsterdam: North-Holland), SACERDOTI, G (1997), 'Bilateral Treaties and with a Human Face (The Hague: Kluwer
COING, H (1992), 'Bretton Woods Con-
pp 1142-3. Multilateral Instruments on Investment Law International).
ference 1944', in Bernhardt, R (ed.)
HUDEC, RE (1987), Developing Countries in Protection', 269 Recueil des Cours 251. WIRTH, D (2002), 'Case Report. Euro-
Encyclopaedia of Public International Law,
vol I (Amsterdam: North-Holland), the GATT Legal System (London: Trade SALACUSE, JW (1996), 'The Energy Charter pean Communities-Measures Affecting
pp 494-495. Policy Research Centre). Treaty and Bilateral Investment Treaty Asbestos and Asbestos-Containing
Regimes', in Walde (ed.), p 321. Products', 96 AlIL 435.
COLLIER, J and LOWE, AV (1999), The JACKSON, JH (1997), The World Trading
Settlement of Disputes in International System Law and Policy of International
Law Institutions and Procedures (Oxford: Economic Relations, 2nd edn (Cambridge,
Oxford University Press). Mass.: MIT Press).
720 GERHARD LOIBL
www.imf.org. www.ibrd.org.
WEBSITES
www.icsid.org.
www.itto.org. www.miga.org. www.wto.org.
www.unctad.org.
FURTHER READING
CARREAU, D and JUILLARD, P (1998), Droit
International Economique, 4th edn (Paris:
Librairie generale de droit et de juris-
prudence): a most comprehensive treatise
on international economic law, in par-
ticular dealing with the transnational
monetary and financial system.
GOLD, J (1996), Interpretation: The IMP and
International Law (The Hague: Kluwer
Law International): the most compre-
hensive work on the operation of the IMF
and the legal issues arising within the
IMP.
JACKSON, JH (1997), The World Trading
System Law and Policy of International
Economic Relations, 2nd edn (Cambridge,
Mass. MIT Press): a thorough work on
the functioning of the World Trading
System.
SACERDOTI, G (1997), 'Bilateral Treaties and
www.ifa.org.
www.un.org.
Multilateral Instruments on Invest-
ment Protection', 269 Recueil des Cours
251-460: an analysis of the current
status of investment protection under
international law;
SCHREUER, C (2001), The ICSID Convention:
A Commentary (Cambridge: Cambridge
University Press): the leading work on the
practice ofICSID.
SEIDL-HoHENVELDERN, I (1999), Inter-
national Economic Law (The . Hague:
Kluwer Law International): the most
comprehensive work on rules of public
international law directly concerned with
economic exchanges.
SHIHATA, I (1998), World Bank Inspection
Pane~ 2nd edn {Oxford: Oxford Uni-
versity Press): the work gives an insight
in the operation of the World Bank
Group.
23
INTERNATIONAL
CRIMINAL LAW
Antonio Cassese
SUMMARY
International criminal law, which encompasses rules on international criminal offences and
regulates international criminal proceedings, is something of a hybrid component of the
law of nations, drawing upon both international human rights and humanitarian law and
national criminal law. International crimes currently envisaged by customary law include
war crimes, crimes against humanity, genocide, aggression, as well as torture and trans-
national terrorism. Persons allegedly responsible for such crimes may be prosecuted before
either national courts or international criminal tribunals, if these judicial bodies have
jurisdiction. At the international level, ad hoc tribunals have been set up in 1945-46 CIMT,
the Nuremberg Tribunal for the German major criminals and IMTFE, the Tokyo Tribunal
for Japanese major criminals) and then in 1993 (the ICTY, for the former Yugoslavia) and
in 1994 (the ICTR, for Rwanda) and in 2002 (for Sierra Leone). In 1998 the ICC was
established by a treaty which is now in force for eighty-nine States as of February 2003.
1. INTRODUCTION: THE NOTION OF
INTERNATIONAL CRIMINAL LAW
International criminal law is a body of international rules designed both to proscribe
international crimes and to impose upon States the obligation to prosecute and
punish at least some of those crimes. It also regulates international proceedings for
prosecuting and trying persons accused of such crimes. The first limb of this body
makes up substantive law. This is the set of rules indicating what acts amount to
international crimes, the subjective elements required for such acts to be regarded as
prohibited, the possible circumstances under which persons accused of such crimes
may not be held criminally liable, as well as on what conditions States mayor must,
722 ANTONIO CASSESE
under internationals rules, prosecute or bring to trial persons accused of one of
those crimes. The set of rules regulating international proceedings, that is procedural
criminal law, govern the action by prosecuting authorities and the various stages of
international trials. This chapter focuses upon the development of the substantive
law. 1
II. GENERAL FEATURES OF INTERNATIONAL
CRIMINAL LAW
International criminal law is a branch of public international law. The rules making up
this body of law are international, in that they emanate from sources of mternational
law (treaties, customary law, etc.).2 Hence, they are subject, among other things, to
the principles of interpretation proper to international law. However, international
criminal law has some particular features.
A. RECENT ORIGINS
International criminal law is a relatively new branch of international law. The list
of international crimes-that is, acts the authors of which are made criminally
responsible for by international law-has come into being by gradual accretion. Ini-
tially, in the late nineteenth century and for a long time thereafter, only war crimes
were punishable. 3 It was only after the Second World War that new categories of
crimes were developed, and that of war crimes re-invigorated. Statutes of the Inter-
national Military Tribunal at Nuremberg (IMT) and the International Military Tri-
bunal for the Far East (IMTFE) were adopted in 1945 and 1946 respectively, laying
down new classes of international criminality, these being crimes against humanity
and crimes against peace. These were followed in 1948 by genocide as a special sub-
category of crimes against humanity (itself soon to become an autonomous class of
crimes, shorn of any link with war crimes) and then in the 1980s by torture as a
discrete crime. Recently, as will be shown below, international terrorism has been
criminalized, subject to certain conditions. It follows from this that international
criminal law is still a very rudimentary branch of law. The gradual broadening of
1 Rules on international criminal procedure remain scant and, more significantly, relate only to the par-
ticular international tribunal or court in question. For the gradual emergence of more general applicable rules
see Safferling, 2001; Zappala, 2003. For the Rules of the ICC see PCNICC/2000/INF/3/Add.1, reproduced in
Cassese, Gaeta, and Jones, 2002, vol III, p 67. For discussion see the various contributions in Cassese, Gaeta,
and Jones, 2002, vol II, pp 1111-1585. See also, Cassese, 2003.
2 For a succinct survey of these sources, see Cassese, 2001, pp 117-161.
3 For an overview of the historical path see Ratner and Abrams, 2001, ch 9; Cassese, 2003. Piracy,
traditionally considered an international crime will not be discussed here since it does not meet the
requirements of international crimes proper.
INTERNATIONAL CRIMINAL LAW 723
substantive criminal law has been a complex process. Among other things, when a
new class of crime has emerged, its constituent elements (the objective and subjective
conditions of the crime, the actus reUS and mens rea) have not been immediately clear.
Another important consideration is that international rules do not lay down any scale
of penalties.
The reasons why international criminal law displays these characteristics flow from
the manner in which its has been formed. First, the relevant treaties and (the more
seldom) customary rules focus upon prohibiting certain acts (such as killing prisoners
of war or civilians) rather than addressing the criminal consequences of such acts, let
alone the conditions for their criminal repression and punishment. Secondly, when
international law has criminalized some categories of acts, such as war crimes and
crimes against humanity, it has left the task of prosecuting and punishing the alleged
perpetrators to national courts which, in consequence, have applied their own juris-
dictional and procedural rules as well as following their own approaches to relevant
questions of substantive criminal law, such as the mens rea, actus reus, defences, etc.
Faced with the indeterminacy of most international criminal rules, national courts
have found it necessary to flesh them out and give them legal precision, thus refining
notions initially left rather loose and woolly by treaty or customary law. Thirdly,
although the Statutes of the international criminal courts that have been established
have set out various classes of crimes that are to be punished, these classes were
conceived of and couched in terms of offences over which each court had jurisdiction
rather than set out as a criminal code. As such, they were relevant only to each
particular court and did not purport to have a more general reach.
B. THE RELATIONSHIP WITH INTERNATIONAL HUMAN RIGHTS
AND NATIONAL CRIMINAL LAW
Another important feature of international criminal law is that, more than any
other segment of international law, it simultaneously derives its origin from, and
continuously draws upon, both international human rights law and national criminal
law.
Human rights law, essentially consisting of international treaties and conventions,
as well as the case law of international bodies such as the European Court of Human
Rights, has contributed to the development of criminal law by expanding, strengthen-
ing, or creating greater sensitivity to the values it protects, such as human dignity and
the need to safeguard as far as possible life and limb. Furthermore, human rights law
lays down the fundamental rights belonging to suspects and accused persons, to
the victims and witnesses and also sets out the basic safeguards for a fair trial. In short,
this increasingly important segment of public international law has significantly
impregnated the whole area of international criminal law (Zappala, 2003).
In addition, most customary rules of international criminal law have primarily
evolved from municipal case law relating to international crimes (chiefly war crimes).
This, as well as the paucity of international treaty rules on the matter, explains why
724 ANTONIO CASSESE
international criminal law is largely the result of the gradual transposition onto the
international plane of rules and legal constructs proper to national criminal law or to
national trial proceedings. This, however, has not been a smooth process. National
legal orders do not contain uniform systems of criminal law, although most are
derived from either common law or civil law systems with predominantly Roman-
German origins. The heterogeneous and composite origin of many international rules
and institutions bearing upon both substantive and procedural criminal law has
resulted in a patchwork of normative standards which complicates matters
significantly.
This is particularly true of the so-called 'general part of criminal law'. This is the
set of rules regulating the subjective elements of crimes, the various forms or categor-
ies of criminal liability (joint responsibility for common criminal purpose, aiding and
abetting, and so on), conditions excluding criminal liability, etc. Since national courts
pronouncing on war crimes or crimes against humanity have, naturally enough,
applied the general notions of criminal law prevailing in that country, the result is that
one is confronted with hundreds of national cases where judges have relied upon
different conceptions of, or approaches to, the 'general part', or have even resorted
to the national definition of some subjective or objective elements of the relevant
international crime.4
It follows that international criminal law is an essentially hybrid branch oflaw: it is
public international law impregnated with notions, principles, and legal constructs
derived from national criminal law and human rights law. However, the recent estab-
lishment of international criminal tribunals, and in particular of the ICC, has given an
impetus to the evolution of a body of international·criminallaw proper and we can
now look forward toward the formation of a fully-fledged body of law in this area.
C. THE RELATIONSHIP WITH PUBLIC INTERNATIONAL LAW
A final principal feature of international criminal law, particularly of substantive
criminal law, concerns its twofold relationship with public international law.
The first relationship is one of mutual subsidiarity or support. Strikingly, most of
the offences that international criminal law proscribes, the individual perpetrators
of which it seeks to punish, are also regarded by international law as particularly
serious violations of international law by States: they are international delinquencies
entailing the 'aggravated responsibility' of the State on whose behalf the perpetrators
may have acted (Cassese, 2001, pp 200-211). This holds true not only for genocide,
crimes against humanity, torture, terrorism, but also for war crimes. Thus, when one
of these crimes is committed by an individual not acting in his private capacity, two
forms of responsibility arise: the criminal liability of the individual, falling under
4 For instance, in Frohlich, a British Court of Appeal established in Germany under Control Council
Law No 10, applied the German notion of 'murder' when satisfying itself that an accused, a German charged
with and convicted by a court of first instance of killing four Russian prisoners of war, amounted to a war
crime (at pp 280-282).
INTERNATIONAL CRIMINAL LAW 72 5
international criminal law, and the State responsibility, regulated by international·
rules on this matter. However, the international community currently tends to give
pride of place to the former and plays down or neglects the latter, largely motivated by
political factors. Nevertheless, both legal avenues remain open, as is demonstrated
by proceedings for genocide being instituted between States before the ICJ whilst
individuals are being tried for genocide before the ICTY.
The second relationship between international criminal law and public inter-
national law is more complex. Two rather conflicting philosophies underlie each
area of law. Substantive criminal law seeks to protect society from the most serious
breaches of legal standards of behaviour by punishing those individuals responsible,
irrespective of whether they are agents of the State or acting in a private capacity.
However, the pervasive influence of human rights doctrines means that international
criminal law is also concerned to safeguard the rights of suspects or accused persons
from arbitrary prosecution and punishment. It follows that one of the mainstays of
international criminal law is that its prohibitions be as clear, detailed, and specific as
possible, and that no one should be punished for conduct that was not considered
criminal when it was undertaken. In short, those suspected or accused of a crime are
entitled to benefit from rights protecting them from possible abuse by prosecuting
authorities.
Public international law, on the other hand, seeks to reconcile as far as possible the
conflicting interests and concerns of sovereign States without, however, neglecting the
interests of individuals and non-State entities. Modern international law tries to
achieve this by positing three grand ideals-peace, human rights, self-determination
of peoples-as overarching standards of conduct. However, it remains more focused
upon regulating and facilitating peaceful international intercourse between States
than on calling States to account for breaches oflaw. Given the need to take account of
the conflicting interests and preoccupations of States, the legal standing of certain
alleged rules of international law is often left unclear for considerable periods of time,
until judicial decisions or clear and unambiguous State behaviour make it clear that
the rule has crystallized and has a well-specified content. In other words, the need for
detailed, clear, and unambiguous legal regulation is less strong in the general area of
public international law than in the specific area of international criminal law, where
it is critical given that the fundamental rights of suspects or accused persons are at
stake.
The inherent requirements underlying international criminal law (not less than
any national body of criminal law) may therefore collide with traditional features of
public international law which still relies to a large extent upon custom. In this respect
international criminal law bears a strong resemblance to the criminal law in common
law jurisdictions where many common law offences have developed through judicial
precedent alongside statutory offences. However, in common law countries, unlike
international law the wealth of judicial precedents build up over centuries, and above
all the hierarchical structure of the judiciary coupled with the doctrine of 'judicial
precedent' (meaning that each court is bound by decisions of courts above), as well as
72 6 ANTONIO CASSESE
the extrapolation by legal scholars of general principles from the copious case law,
largely meet the demands of legal certainty and foreseeability necessary to any system
of criminallaw. 5
The relative indeterminacy and 'malleability' of international criminal rules
heightens the significance of the role of national or international courts, which
have to throw light on and give legal precision to rules of customary law as well as
spelling out and elaborating upon frequently terse treaty provisions. Courts play
an indispensable role in ascertaining the existence and content of customary rules,
interpreting and clarifying treaty provisions, and elaborating-according to general
principles-legal categories and constructs indispens~ble for the application of
international criminal rules. The result is that the rapid development of substantive
international criminal law is mainly due to judicial decisions.
III. THE ESTABLISHMENT OF INTERNATIONAL
CRIMINAL TRIBUNALS
The idea of setting up an international criminal court to bring to justice individuals,
including leading State officials, allegedly responsible for serious international crimes,
goes back to the aftermath of the First World War. The realization of that goal has,
however, been slow and painstaking and may be traced through four distinct phases:
(i) abortive early attempts (1919-45); (ii) criminal prosecutions in the aftermath
of the Second World War: the Nuremberg and Tokyo Tribunals (1945-46); (iii)
post-Cold War 'new world order' and the development of the two ad hoc Tribunals
(1993-94); and (iv) the drafting of the ICC Statute (1994-98). This section will
concentrate on the last two phases, before concluding with an overview of the
recent emergence of 'mixed' or internationalized tribunals addressing questions of
individual criminal responsibility.
A. POST-COLD WAR 'NEW WORLD ORDER' AND THE DEVELOPMENT
OF AD HOC TRIBUNALS (1993-94)
1. The background.
A variety of factors led to the establishment of international criminal tribunals in the
early 1990s. The end of the Cold War proved to be of crucial importance, dissipating
the animosity that had dominated international relations for almost half a century and
ushering in a new spirit of relative optimism. This was marked by a clear reduction in
the distrust and mutual suspicion that had frustrated friendly relations and cooper-
ation between the Western and the Eastern bloc. Moreover, the successor States to the
5 CfBrierly, 1923 at pp 86-87 who contests this analogy.
INTERNATIONAL CRIMINAL LAW 72 7
USSR (the Russian Federation and the other members of the Confederation of
Independent States) came to accept and respect some bask principles of international
law. Finally, there emerged unprecedented agreement within the UN Security Council
and increasing convergence in the views of its five permanent members, thus enabling
it to fulfil its functions more effectively that had hitherto been the case.
Another effect of the end of the Cold War was no less important. Despite the
problems of that bleak period, the two power blocs had managed to guarantee a
modicum of international order during the Cold War era, with each super power
acting as something of both a policeman and a guarantor of security within their
respective spheres of influence. The collapse of this model of international relations
brought the fragmentation of the international community and disorder which,
coupled with rising nationalism and fundamentalism, resulted in a series of mostly
internal armed conflicts, conducted with much bloodshed and cruelty. The implosion
of previously multi-ethnic societies led to gross violations of international humanitar-
ian law on a scale comparable to those committed during the Second World War.
Another critical factor contributing to a greater need for international criminal justice
was the increasing importance of human rights thinking, soon to become a form of
'secular' religion. The. emphasis on the need to respect human dignity and con-
sequently to punish all those who seriously attack such dignity led to, or at least gave
strong impulse to, the quest for international criminal justice.
This period can be characterized by the development of institutions with authority
to prosecute and punish serious violations of international humanitarian law and
can be subdivided into two distinct stages. The first, considered below, concerns the
establishment by the UN Security Council of the two ad hoc tribunals for the former
Yugoslavia and Rwanda. The second, considered in Section B below, concerns the
eventual adoption through the multilateral treaty-making process of the Statute for a
permanent International Criminal Court.
2. The establishment of the two ad hoc tribunals for Yugoslavia and Rwanda
The conflicts which erupted in, amongst other places, the former Yugoslavia and
Rwanda and the atrocities they engendered served to rekindle the sense of outrage felt
at the closing stage of the Second World War. By way of response, the UN Security
Council, pursuant to its power to decide on measures necessary to maintain or restore
international peace and security in Chapter VII of the UN Charter, set up ad hoc
tribunals: in 1993 the International Criminal Tribunal for the former Yugoslavia
(ICTY),6 and in 1994 the International Criminal Tribunal for Rwanda (ICTR).7 The
6 SC Res 827 (25 May 1993). The response of the international community to the conflict in Yugosla-
via had been tardy and inconsistent, due to impotence at the military and political levels. The establishment
of a Tribunal was thus seized upon not only as a belated face-saving measure but also in the pious hope that
it would serve as a deterrent to further crimes. As the UN Security Council itself noted, the ICTY was
established in the belief that an international tribunal would 'contribute to ensuring that such violations are
halted and effectively redressed'.
7 SC Res 955 (8 November 1994).
7 28 ANTONIO CASSESE
former was empowered to exercise jurisdiction over grave breaches of the Geneva
Conventions, violations of the laws and customs of war, genocide, and crimes against
humanity allegedly perpetrated in the former Yugoslavia since 1 January 1991. The
latter was called upon to adjudicate genocide, crimes against humanity, violations of
Article 3 common to the Geneva Conventions and of the Second Additional Protocol
allegedly perpetrated in Rwanda (or in 'the territory of neighbouring States in respect
of serious violations of international humanitarian law committed by Rwandan
citizens') between 1 January and 31 December 1994.
Both the ICTY and ~he ICTR were established by resolutions of the United Nations
Security Council acting under Chapter VII of the UN Charter8 and thus binding
on all member States rather than as the product of a multilateral treaty process.
The establishment of the ICTY has attracted much criticism (eg Robertson, 2000,
pp 300ft"), the principal objections being that (i) the Tribunal was established to make
up for the impotence of diplomacy and politics, and merely pointed up the inability
of both the Great Powers and the UN Security Council to find a swift and proper
solution to the conflict in the former Yugoslavia-in short, that the Tribunal was
a sort of 'fig leaf'; (ii) by establishing the Tribunal the Security Council exceeded
its powers under the Charter, adopting an act that was patently ultra vires; (iii) in
creating a criminal court dealing only with crimes allegedly committed in a particular
country, instead of granting to the new court jurisdiction over crimes committed
everywhere in the world, the Security Council opted for 'selective justice' and,
relatedly, the Tribunal manifested an anti-Serb bias. At a more technical level, it has
also been argued that the failure to provide for a complete separation of the prosecu-
torial and judicial work (the prosecutors and judges working in the same building and
being serviced by the same administration, the Registry) is a fundamental flaw.
The first criticism is correct, although half a loaf is better than pie in the sky and, in
the absence of a permanent criminal court with universal jurisdiction, establishing
the ad hoc Tribunals proved salutary. The second criticism was proved to be wrong by
the Judgment of the Tribunal's Appeals Chamber in Tadic (Interlocutory Appeal).9
With regard to the objection that the Tribunal is biased, focusing on bringing mainly
Serbs to trial (and in addition failing to prosecute NATO servicemen or leaders for the
1999 attacks on Serbia), it is necessary to distinguish between the Prosecutor and the
Bench. The Prosecutor enjoys sweeping powers and among other things decides
whom to prosecute. Judges are on the receiving end and cannot interfere with specific
choices made by the Prosecutor. In addition, it is highly questionable that the various
8 Thus, for example, SC Res 827 (25 May 1993) establishing the ICTY which determined that the situation
in the former Yugoslavia, and in particular in Bosnia and Herzegovina-where there were 'reports of mass
killings, massive, organised and systematic detention and rape of women and ... the practice ·of "ethnic
cleansing'" -constituted a threat to international peace and security under Chapter VII of the United
Nations Charter.
9 ICTY, Appeals Chamber, Prosecutor v Dusko Tadic, Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction (Interlocutory Appeaf), Case No IT-94-1-AR72 (2 October 1995), paras 9-40.
(Hereafter Tadie (Interlocutory Appeaf).)
INTERNATIONAL CRIMINAL LAW 729
Prosecutors have had any anti-Serbian bias: they have always claimed that they acted
simply in the light of the available evidence. As for the criticism that the Prosecution
and the Bench are housed in the same building, this does not mean that the two
organs are not independent of each other.
The International Criminal Tribunal for Rwanda (ICTR) was also established by
UN Security Council Resolution acting under Chapter VII of the UN Charter, in this
case as a response to the civil war and genocide in Rwanda and the ensuing loss of life
and bloodshed. The overwhelming magnitude of the atrocities committed and the
fact that they assuredly amounted to genocide lent particular urgency to the estab-
lishment of the ICTR. The international community was also sensitive to criticism
that by establishing the ICTY it had once again paid disproportionate attention to the
problems of Europe compared to those of the developing world, and the establish-
ment of the ICTR not only assuaged its conscience but helped shield it from accusa-
tions of double standards. One particular feature of the establishment of the ICTR
was that, in the early stages at least, it was the new Rwandan government itself which
took the initiative, believing that the task of post-war reconstruction, and inter-
national approval, would be enhanced by a national process of self-examination and
judicial condemnation of the worst abuses that had occurred during the civil war.
Thus Article 1 of the Statute of the ICTR provides that the ICTR 'shall have the power
to prosecute persons responsible for serious violations of international humanitarian
law committed in the territory of Rwanda and Rwandan citizens responsible for such
violations committed in the territory of neighbouring States, between 1 January 1994
and 31 December 1994, in accordance with the provisions of the present Statute'.
Although the Statutes for the ICTY and the ICTR differ, the tribunals share a common
Prosecutor and a common Appellate Chamber. This may appear to be a curious
formula for separate ad hoc tribunals; but it demonstrates the need for ensuring some
uniformity in the administration of international criminal justice.
3. The tribunals at work
The ICTY is currently dealing with a total of sixty indictments and proceedings.
Trial chambers have concluded seventeen cases, and in seven of these the appeals
process is also complete. 10 Similarly, the ICTR has completed thirteen cases whilst
another sixty-two are in progress. II Considering the extent of the violations of
10 The cases are as follows (starred cases being those in which appeals have also been dealt with): Tadii
(IT-94-1)*, Sikirica (IT-95-8), Simic (IT-95-9), Todorovii (IT-95-9/1), Milan Simii (IT-95-9/2), Jelisii
(IT-95-1O)*, Blas7cii (IT-95-14), Aleksovski (IT-95-14/l)*' Kordii and Cerkez (IT-95-14/2), Kupres7cii
(IT-95-16)*, Furulldzija (IT-95-17/l)*, Delalii (IT-96-2l)*, Erdemovii (IT-96-22)*, Kunarac and Kovac
(IT-96-23), Kvocka (IT-98-30-1), Krstii; (IT-98-33), and Plavsii(IT-D0-39 and 40/1).
11 Completed cases: Akayesu (ICTR-96-4), Bagilishema (ICTR-95-l), Kambanda (ICTR-97-23),
Kayishema (ICTR-95-1), Musema (ICTR-96-13), Ntakirutimana, G (1. ICTR-96-10; 2. ICTR-96-17),
Ntakirutimana, E (1. ICTR-96-1O; 2. ICTR-96-17), Ntuyahaga (ICTR-98-40), Ruggiu (ICTR-97-32),
Rusatira (ICTR-2002-80-1), Rutaganda (ICTR-96-13, subject to pending appeal), Ruzindana (1. ICTR-95-1;
2. ICTR-96-1O), and Serushago (ICTR-98-39).
 730 ANTONIO CASSESE
international humanitarian law in the former Yugoslavia and Rwanda, these figures
suggest that the ad hoc tribunals do not provide an effective route for bringing all
responsible persons to justice. However, this does not mean that the ICTR and the
ICTY are of merely syInbolic significance. As has been indicated above, international
criminal law is a branch of public international law of recent origin. The interpret-
ation and application by the ad hoc tribunals of the rules governing individual
criminal responsibility, war crimes, genocide, and crimes against humanity represent
a significant contribution to international criminal law, and, of course, form a body of
law which will have a significant precedential value for the newly established ICC (see
Aksar,2003).
B. THE INTERNATIONAL CRIMINAL COURT 12
1. Drafting and adoption of the Statute of the ICC (1994-98)13
The question of creating an international criminal court had been considered within
the UN in the early 1950s but in 1989, and with the endmg of the Cold War in 1989, it
returned to the fore, albeit by an unexpected route.
In 1989, after a hiatus of thirty-six years, the General Assembly, in a" special
session concerning drugs, took up the suggestion made by Trinidad and Tobago
that a specialized international criminal court be established to deal with the
problem of drug trafficking and requested that the ILC 'address the question of
establishing an international criminal court'.14 The ILC completed a report in 1990
which, although not limited to questions of drugs trafficking, was nevertheless
favourably received by the General Assembly, which encouraged the ILC to con-
tinue its work. The ILCproduced a comprehensive draft text in 1993, which was
further modified in 1994. 15
The establishment of the ICTR and ICTY provided a further spur to the establish-
ment of an international criminal court which, unlike the ad hoc tribunals, would
have global jurisdiction and be able potentially to respond to violations occurring
anywhere. In 1996 the General Assembly established a Preparatory Committee on
the Establishment of an International Criminal Court (PrepCom). After a series of
sessions, this Committee was able to submit to a Diplomatic Conference held in
Rome from 15 June-17 July 1998 a Draft Statute and Draft Final Act consisting of
116 Articles contained in 173 pages of text but with some 1,300 words in 'square
brackets', these representing areas upon which no agreement had yet been reached
12 Of the more recent of the many publications surveying the background to, and content of, the ICC
Statute see the concise work by Schabas, 2001 and the three-volume Commentary edited by Cassese, Gaeta,
" and Jones, 2002.
13 See the various contributions in Cassese, Gaeta, and Jones, 2002, vol I (p 23 (Crawford); p 35 (Bos), P 67
(Kirsch and Robinson) ).
14 GA Res 44/39 (4 December 1989) and see Cassese, 1998, pp 8-9.
15 Report of the International Law Commission, 46th Sess, 2 May-22 July 1994, UN GAOR, 49th Sess,
Supp No 10, UN Doc N49/10 (1994).
INTERNATIONAL CRIMINAL LAW 731
and indicating the scale of the issues remaining to be addressed at that late stage. In
both the Prep Com and at the Rome Conference, three major groupings of States
emerged.
The first was the group of so-called Like-Minded States. This was largely led by
Canada and Australia but included countries from all regions of the world. It favoured
a fairly strong Court with broad and 'automatic jurisdiction', the establishment of an
independent prosecutor empowered to initiate proceedings, and a sweeping definition
of war crimes embracing crimes committed in internal armed conflicts.
A second group comprised the permanent members of the Security Council (P-5),
with the exception of the UK, which aligned itself with the like-minded States during
both the preparatory negotiations and at Rome, and, at Rome, with France, which also
joined the like-minded group. The remaining permanent members, and in particular
the USA, were opposed to 'automatic jurisdiction' and to the prosecutor being
granted the power to initiate proceedings. By the same token, they were eager that the
Security Council should have an extensive role by having the power both to refer
matters to the Court and to prevent cases from being brought before the Court. In
addition, these States opposed giving the Court jurisdiction over the crime of aggres-
sion and also opposed including any reference to the use of nuclear weapons among
the violat.ions of humanitarian law over which the Court was to exercise jurisdiction.
The third grouping embraced members of the non-aligned movement (NAM).
This group pressed for the Court to have jurisdiction over the crime of aggression
and some of them (Barbados, Dominica, Jamaica, and Trinidad and Tobago) pressed
for the inclusion of drug-trafficking, whereas others (India, Sri Lanka, Algeria, and
Turkey) supported the inclusion of terrorism. On the other hand, they were opposed
to the Court having jurisdiction over war crimes committed in internal armed con-
flicts; they also insisted upon the death penalty being available under the Statute. In
addition, they opposed the Security Council being given any role in the operation of
the Court.
The task of reconciling these divergent positions fell to a group of distinguished
diplomats, and in particular the Canadian Philippe Kirsch, who chaired the 'Commit-
tee of the Whole' where the major issues were considered and who must be credited
with having devised and suggested a number of compromise formulas that in the
event permitted the Conference to adopt the Statute by 120 votes to seven (USA,
Libya, Israel, Iraq, China, Sudan, Syria) with twenty abstentions. The ICC Statute
entered into force on 1 July 2002, the number of States parties currently stands at
eighty-nine. In February 2003 the first Judges of the ICC were elected.
2. The jurisdiction of the ICC l6
The ICC was created in order to have jurisdiction over only 'the most serious crimes
of concern to the international community as a whole' (Statute, Preamble, para 4),
which according to Article 5( 1) of the Statute are: genocide, crimes against humanity,
war crimes, and the crime of aggression. Generally speaking, this reflects the
16 See generally the various contributions in Cassese, Gaeta, and Jones, 2002, vol I, pp 335-729.
732 ANTONIO CASSESE
jurisdictional reach of the ad hoc tribunals, being a combination of ICTY Articles 2-
5 and ICTR Articles 2-4, to which the crime of aggression had been added. However,
the correlation is made even closer by reason of ICC Article 5(2) which makes the
jurisdiction of the ICC over aggression conditional upon the adoption of a definition,
and this is yet to happen. For the moment, the subject matter jurisdiction of the
ICC is, then, restricted to genocide, war crimes, and crimes against humanity. This
cautious approach was adopted in order to facilitate as rapid and as widespread
acceptance of the Statute as possible, thus paving the way for early ratification and
allowing the ICC to enter into operation as soon as possible. Once it has established
credibility and gained the respect of the international community, the range of inter-
national crim.es over which the ICC can exercise jurisdiction may be expanded with
the consent of the States parties. I7 This same concern also accounts for the manner in
which key aspects of the 'jurisdictional architecture' of the Statute have been
constructed.
The starting point concerns the essential 'preconditions to the exercise of jurisdic-
tion'. According to Article 12(2) of the Statute, the Court may exercise jurisdiction
only in cases where (a) the alleged crime has been committed on the territory of a
State party to the Statute, or (b) the State of which the person accused of the crime is a
national of a State party to the Statute. Of course, this means that the Court can
exercise jurisdiction over individuals who are nationals of States which have not
ratified the Statute if the act in question took place in the territory of a State that had
ratified the Statute. On the face of it, this is a rather generous approach but it has to be
read alongside a series of provisions designed to ensure an appropriate balance
between the interests of the State whose nationals are accused of offences, the States
in which the alleged offence occurred, and the proper application of international
criminal law and international criminal justice.
A critical element of the ICC is that its jurisdiction is complementary to that of
national criminal justice systems. It does not replace national courts; indeed, national
courts enjoy priority over the ICC. According to Article 17 of the Statute, a case is to
be declared inadmissible if it is being investigated or prosecuted (or has been investi-
gated) by national authorities, unless the State in question is unable or unwilling
genuinely to carry out the investigation or prosecution. This flows naturally from
principles of State sovereignty and means that the ICC jurisdiction has something of a
residual flavour.
The aim of the drafters was to construct a Court that was independent, fair,
impartial, effective, representative, and free from political influence. However, the
relationship between the ICC and the Security Council was a source. of difficulty
17 However, like the ICTY and the ICTR, the ICC has jurisdiction only over natural persons (ICC Statute,
Art 25) and since it cannot exercise jurisdiction over States or over legal entities, such as corporations, its
p0ssible future capacity to deal with economic crimes such as money laundering is likely to be limited
(see Bassiouni and Blakesley, 1992; Meron, 1998)-although it is not impossible that at some future date
the jurisdiction of the ICC ratione personae might also be capable of expansion. The concept of personal
(individual) criminal responsibility will be explained in detail below.
INTERNATIONAL CRIMINAL LAW 733
during the drafting of the Statute and remains a central, yet delicate, issue (Kirsch and
Holmes, 1998, pp 8-9). In particular, the USA sought Security Council control of the
ICC, arguing that the ICC 'must operate in co-ordination-not in conflict-with the
Security Council'. 18 However, this approach was widely rejected within the inter-
national community on the ground that, in order to have credibility, the Court (and
its Prosecutor) would have to operate free of political control, be it the control of the
Security Council or of States parties to the Statute. 19
This debate finally resolved itself into the question of the so-called 'trigger mech-
anisms' by which the jurisdiction of the ICC can be activated. According to Article 13
of the Statute the Court can exercise jurisdiction over crimes falling within the scope
of the Statute only when a situation has been referred to the Prosecutor by (a) a State
party to the Statute, (b) by the Security Council acting under Chapter VII of the UN
Charter,20 or (c) where the Prosecutor him/herself initiates an investigation. This
latter route to the seizing of the Court was particularly controversial and a number of
safeguards-or barriers-were therefore erected to guard against the possibility of an
autonomous Prosecutor exercising excessive zeal. First, under Article 15 the role of
the Prosecutor is to examine 'information' and he must seek the authorization of a
pre-trial Chamber of the Court itself if there is to be a thorough 'investigation' of the
case. Moreover, Article 16 permits the Security Council, by means of a resolution
adopted under Chapter VII of the UN Charter, to block the 'commencement or
continuance of investigations for a period of up to 12 months'Y These safeguards
notwithstanding, the USA maintained its objections to the referral of situations by
State parties and by the Prosecutor, arguing that this rendered members of US armed
forces participating in peacekeeping operations around the world open to prosecu-
tion by the ICC and that, in consequence, it might be faced with cases motivated by
political hostility.22
18 Statement by the Hon. Bill Richardson, United States Ambassador to the United Nations (17 June
1998); UN Press Release L/ROM/ll, 'United States Declares at Conference that UN Security Council Must
Play Impo~tant Role in Proposed International Criminal Court' (17 June 1998).
19 For criticism of the American position, see Goldstone, 1998; Wedgwood, 1999; Hafner et al., 1999.
20 In fact, the way of giving power to the Security Council to refer a situation to the Court should be
considered as one of the reflections of the establishment of the ad hoc tribunals on the ICC Statute since
situations similar to the former Yugoslavian and Rwanda can be referred by the Security Council to the ICC.
This is also the only exception to the principle of consent of States under which the ICC can exercise
jurisdiction. See Cassese, 1999.
21 See now SC Res 1422 (12 July 2002) which seeks to remove en bloc from the jurisdiction of the Court
cases 'involving current or former officials or personnel from a contributing state not a party to the Rome
Statute over acts or omissions relating to a United Nations established or authorized operation' for a 12-
month period. The Security Council expressed the intention to renew this request annually 'for as long as
necessary'. This generalized exclusion of jurisdiction over nationals of non-State parties for acts/omission
conducted under UN auspices substantially erodes the jurisdictional reach of the ICC established under
Article 12(2)(a) of the Statute.
22 Statement by the Hon. Bill Richardson, United States Ambassador to the United Nations (17 June
1998). See also Zwanenburg, 1999; Scheffer, 1999. The US has now entered into a series of bilateral treaties
with States under the terms of which it is agreed that no US servicemen serving in UN-authorized operations
in a State party to the Statute will be transferred to the jurisdiction of the Court.
 ANTONIO CASSESE
734
C. THE ESTABLISHMENT OF SO-CALLED INTERNATIONALIZED OR
MIXED CRIMINAL COURTS OR TRIBUNALS
After taking the decision to create the Rwanda Tribunal, which took considerable time
and effort, the Security Council arguably reached a point of 'tribunal fatigue'. 23
Indeed, the logistics of setting up the ad hoc tribunals for the former Yugoslavia and
Rwanda had strained the capacity and resources of the United Nations and the time of
the Security Council, which frequently found itself seized with issues and problems
concerning the tribunals and their administration. Thus the desire to establish such
tribunals waned and, furthermore, the Security Council did not consider other inter-
national conflicts to be of a scale sufficient to justify their establishment.
Nevertheless, with the passing of time, the Council subsequently came to consider
the situations in, among other places, Sierra Leone, East Timor, and Cambodia. How-
ever, the solution has been to create not an ad hoc tribunal along the lines of the ICTY
or ICTR but to establish mixed courts exhibiting features of both national and inter-
national jurisdiction. Such courts have been set up for Sierra Leone, East Timor and
KOSOV0 24 and an attempt is also being made to establish them for Cambodia. In the
case of Sierra Leone, the Statute of a Special Tribunal25 was drafted in October 2000, at
the request of the UN Secretary-General, which was adopted and entered into force in
January 2002. In the case of Cambodia the Secretary-General discussed at length the
establishment by the Cambodian Parliament of a Cambodian special tribunal dealing
with crimes committed in the past by the Khmer Rouge, and to be composed partly by
Cambodian judges and partly by international judges (see Ratner and Abrams, 2001,
pp 267-328). An agreement on the matter was finally reached on 17 March 2003; if it
is endorsed by both the UN and the Cambodian Parliament, a special tribunal will be
set up.
'Mixed' or, as they are often termed, 'internationalized' courts and tribunals are
judicial bodies with a mixed composition, consisting of both international judges and
of judges having the nationality of the State where trials are to be held. Such courts
and tribunals may be organs of the relevant State, being part of its judiciary. This is
. the position of the courts in Kosovo and the 'Special Panel for Serious Crimes' in East
Timor and is also the model under consideration for the proposed Cambodian Extra-
ordinary Chambers. Alternatively, the court may be international in nature: it may be
set up under an international agreement and not be a part of the national judiciary, as
is the case with the Special Court for Sierra Leone.
Many factors-both historical and practical-combine to warrant the establish-
ment of such bodies. First, when serious and widespread crimes have been committed
during a particular situation or emergency, to assist in the post-conflict peace-
building process and also to deter the future commission of large-scale offences, it
23 A term aptly coined by David Scheffer, then Senior Counsel and Advisor to the United States Permanent
Representative to the United Nations; cited in Bassiouni, 1998, p 10 n 50.
24 On these courts and tribunals see Frulli, 2000; Strohmeyer, 2001a; 2001b; Linton, 200l.
25 See UN Doc S/2000/915. See also SC Res 1315 (14 August 2000). For an overview, see Frulli, 2000.
INTERNATIONAL CRIMINAL LAW
may be considered more appropriate to bring those responsible for serious crimes to
trial than to offer amnesties or to put in place truth and reconciliation commissions.
However, in such situations there may well have been a breakdown of the judicial
system, as was the case following the civil wars in East Timor and Sierra Leone or an
international conflict, as in Kosovo.
Even if some time has passed since the crimes were committed and a stable gov-
ernment has taken root, historical factors might mean that the judiciary is not capable
of administering justice in an unbiased and even-handed manner. This is the case in
Cambodia, where the presence in the government of persons who are allegedly closely
linked to the perpetrators of genocide, together with concerns over the independence
of the judiciary, raise concerns regarding the fairness of the trial process. It may also
happen that the population itself prevents or hampers the conduct of a fair trial: in
Kosovo, the ethnic biases of Kosovo Albanians and Serbs rendered the presence of
international judges indispensable for the administration of justice.
Thirdly, the establishment of an international tribunal simply might not be an
option because of the lack of political will within the relevant international organiza-
tions, or the unwillingness of the major powers to provide the necessary funds.
Finally, those responsible for finding· a solution may feel that using the national
judiciary but under some form of international scrutiny, or even control, may prove
advantageous in numerous ways. For example, it might help address nationalistic
concerns about handing over the administration of justice-an essential prerogative
of sovereign power-to international bodies. On the more positive side, mixed courts
allow for the involvement of local prosecutors and judges who are familiar with the
mentality, language, and habits of those with whom they are coming into contact.
They might also allow for more expeditious prosecution whilst not compromising
international standards. Moreover, holding trials in the territory where the crimes
have been committed ensures maximum visibility, which can have a cathartic effect
as regards victims or their relatives, and through the public stigmatization of
culprits and the issuance of just retribution, and contribute to the process of gradual
reconciliation. At an even more general level, the experience of participating in
mixed tribunals might produce a significant spill-over effect, in that it might assist in
promoting the democratic legal training of the local prosecuting and judicial
authorities.
IV. INDIVIDUAL CRIMINAL RESPONSIBILITY
IN INTERNATIONAL LAW
The concept of attribution of criminal responsibility to individuals is not a completely
new issue in international law. Some international crimes such as piracy and slavery
(slave trading and slave trafficking) were regulated in the 1800s and these regulations
have become part of customary international law. The first treaty that provided for
 ANTONIO CASSESE
the enforcement of individual criminal responsibility at an international level was the
Treaty of Versailles (1919), Article 227 of which established the individual criminal
responsibility of the ex-German Emperor, Kaiser Wilhelm II, for 'the supreme offence
against international morality and the sanctity of treaties'. Article 228 also provided
for the prosecution of German military personnel who committed war crimes.
However, the turning point for the development of individual criminal responsibil-
ity carne with the establishment by the international community of the International
Military Tribunals at Nuremberg and at Tokyo after the Second World War. The
practice of these tribunals clearly showed that any individual, regardless of his rank,
could be held responsible for offences amounting to war crimes, crimes against peace,
and crimes against humanity, and that individual responsibility was enforceable at
the international leveL This provided the inspiration for the subsequent establishment
of the ICTY, the ICTR, and the ICC. Moreover, States have a duty to prosecute,
punish, or extradite individuals responsible for the commission of those crimes-in
other words, the enforcement of individual criminal responsibility has become an
obligation erga omnes in nature.
But what is the scope of individual criminal responsibility? Articles 7(1) of the
ICTY and 6( 1) of the ICTR Statutes provide that:
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the
planning, preparation or execution of a crime referred to in articles 2 to 5 [Article 2: War
crimes, Grave Breaches of the Geneva Conventions of 1949, Article 3: Violations of the laws
or customs of war, Article 4: Genocide, Article 5: Crimes against humanity] of the present
Statute, shall be individually responsible for the crime.
In the same vein, Article 25 of the ICC Statute sets out the basic principles of indi-
vidual criminal responsibility and further elaborates upon them (see Eser, 2002).
These Articles evidence a broad approach to the occasions on which an individual
can be held criminally responsible for participating in the commission of an offence,
ensuring that those involved in the planning, preparation, or execution of serious
violations of international humanitarian law-in other words, all those who contrib-
ute to the commission of the violation-are individually responsible (Morris, and
Scharf, 1995, p 93; 1998, p 233). Thus under Articles 7(1) and 6(1) of the ICTY and
the ICTR Statutes and ICC Statute Article 27(2)(b) individual responsibility attaches
not only to those who commit a criminal act-as principals-but also to those who
facilitated the commission of the offence in the various ways outlined in the Statutes,
as participants in the crime.
A further aspect of individual criminal responsibility is the principle of command
(or superior) responsibility. Articles 7(3) of the ICTY and 6(3) of the ICTR Statutes
provide that:
the fact that any of the acts ... was committed by a subordinate does not relieve his superior
of criminal responsibility if he knew or had reason to know that the subordinate was about
to commit such acts or had done so and the superior failed to take necessary and reasonable
measures to prevent such acts or to punish the perpetrators thereof.
INTERNATIONAL CRIMINAL LAW 737
This ensures that criminal responsibility attaches to all those involved in the chain of
command, no matter at what level in the hierarchy, who contributed towards or
facilitated the commission of crimes within the jurisdiction of the Tribunals. Predict-
ably, this is reflected in and elaborated upon in the ICC Statute. The full reach of
this form of responsibility is well illustrated by Article 28 of the ICC Statute (see also
Ambos, 2002) which under the title of 'Responsibility of Commanders and Other
Superiors' provides:
In addition to other grounds of criminal responsibility under this Statute for crimes within
the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be
criminally responsible for crimes within the jurisdiction of the Court committed by
forces under his or her effective command and control, or effective authority and
control as the case may be, as a result of his o~ her failure to exercise control properly
over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances
at the time, should have known that the forces were committing or about to
commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable
measures within his or her power to prevent or repress their commission
or to submit the matter to the competent authorities for investigation and
prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph
(a), a superior shall be criminally responsible for crimes within the jurisdiction
of the Court committed by subordinates under his or her effective authority and
control, as a result of his or her failure to exercise control properly over such
subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly
indicated, that the subordinates were committing or about to commit such
crimes;
(ii) The crimes concerned activities that were within the effective responsibility and
control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or
her power to prevent or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.
In order to ensure that none are beyond the jurisdictional reach of these international
tribunals, the Statutes expressly address the question of the responsibility of Heads of
State and other senior government officials. Articles 7(2) of the ICTY and 6(2) of the
ICTR Statutes provide that:
The official position of any accused person, whether as Head of State or Government or as
a "responsible Government official, shall not relieve such person of criminal responsibility
nor mitigate punishment.
Once again, the ICC Statute builds on this. Article 27(1)-headed 'Irrelevance of
Official Capacity' - provides that:
 ANTONIO CASSESE
This Statute shall apply equally to all persons without any distinction based on official
capacity. In particular, official capacity as a Head of State or Government, a member of a
Government or Parliament, an elected representative or a government official shall in no
case exempt a person from criminal responsibility under the Statute, nor shall it, in and of
itself, constitute a ground for reduction of sentence.
Thus those in authority are not shielded by virtue of their position from inter-
national criminal liability (see Gaeta, 2002). This is important, not only in its own
right, but also because those of lesser rank who have acted in accordance with
superior orders are not per se excused from criminal responsibility on this ground
alone. 26 However, the parallelism ends at this point. Although it is no defence to
argue that one was acting on the basis of orders given by a superior, 'superior orders'
can be a mitigating factor in sentencing. However, the fact of being a senior figure,
responsible for devising and overseeing the implementation of policies in violation of
international criminal law, can be an aggravating factor when it comes to sentencing,
since they are responsible for the maintenance of peace and security and their par-
ticipation in a crime constitutes an abuse of the authority and power that resides in
their officeP
v. CATEGORIES OF INTERNATIONAL CRIMES
As has been said above, international crimes are breaches of international rules entail-
ing the personal criminal liability of the individuals concerned (as opposed to the
responsibility of the State of which the individuals may act as organs) and embrace
war crimes, crimes against humanity, genocide, torture (as distinct from torture as
one of the categories of war crimes or crimes against humanity), aggression, and some
extreme forms of terrorism (serious acts of State-sponsored or State-tolerated inter-
national terrorism).28 The contours of the war crimes, crimes against humanity and
26 Articles 7(4) and 6(4) of the Statutes of the ICTY and the ICTR provide that: 'The fact that an accused
person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal
responsibility, but may be considered in mitigation of punishment if the International Tribunal determines
that justice so requires'. ICC Statute, Article 33 takes a different approach, allowing the defence of superior
orders to lie with respect to war crimes only in cases where the person was under a legal obligation to obey
orders, did not know the order was unlawful, and that the order was not 'manifestly' unlawful. See Gaeta,
1999 and Zimmermann, 2002.
27 See, for example, ICC Rules ofProcecure and Evidence, Rule 145, particularly at Rule 145(2)(b)(ii). For
an examination and overview of the practice of the ad hoc Tribunals see Schabas, 2002.
28 Piracy or illicit traffic in narcotic drugs and psychotropic substances, the unlawful arms trade, smug-
gling of nuclear and other potentially deadly materials or money laundering are not international crimes.
These being acts which are, generally, committed by private individuals or criminal organizations and do not
involve States as such; in addition, they are not envisaged or regulated by customary international rules. Nor is
apartheid an international crime entailing the criminal liability of individuals (although ICC Statute, Art
7(1)(j) might require this assessment to be reappraised).
INTERNATIONAL CRIMINAL LAW 739
genocide, though not entirely clear, are increasingly well understood and are the
subject of considerable jurisprudential exploration. In the context of the ICC, they
have been further enriched though the process of elaboration of Elements of Crime,
as provided by Article 9 of the Statute.29 This chapter will, therefore, provide only a
comparatively brief overview of these three classes of crimes. There are, however, a
number of other international crimes, the status and contours of which are less well
established in Section D below, they will be examined in proportionately greater
detail.
A. WAR CRIMES
War crimes are serious violations of customary or, when applicable, treaty rules con-
cerning the international humanitarian law of armed conflict. This vast body of
substantive rules comprises what is traditionally called 'the law of the Hague' and 'the
law of Geneva' (see Greenwood, Chapter 25 below), but the traditional distinction
between the two sets of rules is fading and, even if it has not become obsolete, it
now serves largely descriptive purposes. In Tadie (Interlocutory Appeal), the Appeals
Chamber of the ICTY stated that a war crime must consist of:
'a serious infringement' of an international rule, that is to say 'must constitute a
breach of a rule protecting important values, and the breach must involve grave
consequences for the victim';
the rule violated must either belong to the corpus of customary law or be part of
an applicable treaty;
'the violation must entail, under customary or conventional law, the individual
criminal responsibility of the person breaching the rule'. 30 In other words, the
conduct constituting a serious breach of international law must be criminalized.
War crimes may be perpetrated in the course of either international or internal
armed conflicts, by which is meant civil wars or large-scale and protracted armed
clashes within a State. Traditionally, war crimes only embraced violations of inter-
national rules regulating international armed conflicts. However, following the ICTY
Appeals Chamber decision in Tadie (Interlocutory Appeal) of 1995, it is now widely
accepted that serious infringements of customary or applicable treaty law on internal
armed conflicts may also be regarded as amounting to war crimes. 31
War crimes may be perpetrated by military personnel against enemy servicemen
or civilians, or by civilians against members of the enemy armed forces (for instance,
in occupied territory). Conversely, crimes committed by servicemen against their
. 29 UN Doc PCNICC/2000/INF/3/Add.2, reproduced in Cassese, Gaeta, and Jones, 2002, vol 3, p 145. For a
detailed examination of the Elements of War Crimes see Dormann, 2003.
30 Tadie (Interlocutory Appeal), para 94.
31 Ibid, paras 97-127. See also ICC Statute, Article 8(2)(c-f).
 740 ANTONIO CASSESE
own military (whatever their nationality) do not constitute war crimes. 32 Such
offences may nonetheless fall within the ambit of the military law of the relevant
belligerent.
Criminal offences, if they are to amount to war crimes, must also have a link with
an international or internal armed conflict. Many courts, chiefly the ICTY33 and the
ICTR,34 have restated this proposition, which can be easily deduced from the whole
body of international humanitarian law of armed conflict. This applies in particular
to offences committed by civilians, although courts have also required the link or
nexus with an armed conflict in the case of crimes perpetrated by members of the
military.
Special attention should be paid to crimes committed by civilians against other
civilians. These may constitute war crimes, provided there is a link or connection
between the offence and the armed conflict. If such a link is absent, the breach does
not amount to a war crime, but simply constitutes an 'ordinary' criminal offence
under the law applicable in the relevant territory.35
B. CRIMES AGAINST HUMANITY
Under general international law this category of crimes is sweeping but remains well-
defined. It covers actions that share a set of common features, these being:
they are particularly odious offences in that they constitute a serious attack on
human dignity or a grave humiliation or degradation of one or more human
beings;
they are not isolated or sporadic events, but are part either of a governmental
policy, or of a widespread or systematic practice of atrocities tolerated,
condoned, or acquiesced in by a government or a de facto authority. Each
32 See, for example, PiZz (Dutch Special Court of Cassation), in which no war crime was committed when a
German officer killed a Dutch national who had voluntarily joined the German army (albeit that he had been
trying to escape at the time). See also Motosuke (Temporary Court-Martial of the Netherlands East Indies) in
which the killing of a Dutch national who served in the Japanese army was not a war crime, it being
considered that he had lost his Dutch nationality.
33 See ICTY, Trial Chamber, Prosecutor v Dusko Tadic, Opinion and Judgment, Case No IT-94-1-T (7 May
1997), para 573; ICTY, Trial Chamber, Prosecutor v Zejnil Delalic, Zdravko Mucic also known as 'Pa'vo', Hazim
Delic, Esad Landzo also known as 'Zenga', Judgment (Delalic and others), Case No IT-96-21-T (16 November
1998), para 193.
34 See ICTR, Trial Chamber, The Prosecutor v Jean-Paul Akayesu, Judgment, Case No ICTR 96-4-T (2
September 1998), paras 630-634, 638-644; ICTR, Trial Chamber, Prosecutor v Clement Kayishema and Obed
Ruzindana, Judgment, Case No ICTR-95-1-T (21 May 1999), paras 185-189,590-624; ICTR, Trial Chamber,
Prosecutor v Alfred Musema, Judgment and Sentence, Case No ICTR-96-13 (27 January 2000), paras 259-262,
275 and 974). In all these cases the Court eventually found that the link required was lacking.
35 The Swiss Appellate Military Tribunal confirmed this proposition in Niyonteze, in 2000, in which the
civilian mayor of a commune in Rwanda in 1994 was found to have committed a war crime in that he
instigated and ordered the murder of civilians whilst exercising de jure and de facto authority over the local
citizens; it was thus in his capacity as a 'public official' or civil servant that he committed the crimes (there
also being a sufficient nexus with an internal armed conflict).
INTERNATIONAL CRIMINAL LAW 741
individual offence will either be a particular instance of crime frequently
repeated or be part of a string of such crimes (widespread practice), or be a
particular manifestation of a policy or a plan drawn up, or inspired by, State
authorities or by the leading officials of a de facto State-like organization, or of
an organized political group (systematic practice);
they are prohibited and may consequently be punished regardless of whether
they are perpetrated in time of war or peace. VVhile in 1945 a link or nexus
with an armed conflict was required, customary law no longer attaches any
importance to such requirement;
the victims of the crime may be civilians or, in the case of crimes committed
during armed conflict, persons who do not take part (or no longer take part) in
armed hostilities, as well as, under customary international law (but not under
the Statutes of the ICTY, ICTR and the ICC),36 enemy combatants.
To a large extent, many concepts underlying this category of crimes derive from, or
overlap with, those of human rights law (the rights to life, not to be tortured, to
liberty and security of the person, etc.), laid down in standard provisions of inter-
national human rights instruments. Indeed, while international criminal law con-
cerning war crimes largely derives from, or is closely linked to, international humani-
tarian law, international criminal law concerning crimes against humanity is to a
great extent predicated upon international human rights law. International humani-
tarian law-which traditionally regulates warfare between States-and international
human rights law-which regulates what States may do to their own citizens and,
more generally, to individuals under their control-are in essence two distinct bodies
of law, each arising from separate concerns and considerations. The former is rooted
in notions of reciprocity-one need not be a great humanist to be in favour of laws
of war for international conflicts, as it is simple self-interest of a State to ensure that
its soldiers are well-treated in exchange for treating well enemy soldiers and its
civilians are spared the horrors of war. The latter is more geared to community
concerns, as it intends to protect human beings per se regardless of their national or
other allegiance.
The requirement that crimes be systematic in nature can be inferred from the
provisions listing crimes against humanity which clearly, if implicitly, require that
the offence constitute an attack on hurrianity,be of extreme gravity and not be limited
to a sporadic event but be part of a pattern of misconduct. Subsequent case law
consistently demonstrates this to be a major feature of the crimes.
However, when the atrocities are part of a government policy, the perpetrators need
not identify themselves with this policy, as the District Court of Tel Aviv stated in 1951
in Enigster (a case concerning a Jew imprisoned in a Nazi concentration camp, who
persecuted his fellow Jewish inmates). The District Court of Tel Aviv correctly stated
that:
36 See ICTY Statute, Article 5; ICTR Statute, Article 6; ICC Statute, Article 7(1).
742 ANTONIO CASSESE
a person who was himself persecuted and confined in the same camps as his victims can,
from the legal point of view, be guilty of a crime against humanity if he performs inhumane
acts against his fellow prisoners. In contrast to a war criminal, the perpetrator of a crime
against humanity does not have to be a man who identified himself with the persecuting
regime or its evil intention. 37
In sum, murder, extermination, torture, rape, political, racial or religious persecution,
and other inhumane acts, reach the threshold of crimes against humanity only if they
are part of a practice. Isolated inhumane acts of this nature may constitute grave
infringements of human rights or, depending on the circumstances, war crimes, but
fall short of attracting the stigma attaching to crimes against humanity. On the other
hand, an individual may be guilty of crimes against humanity even if he perpetrates
one or two of the offences mentioned above, or engages in one such offence against
only a few civilians, providing those offences are part of a consistent pattern of
misbehaviour by a number of persons linked to that offender (for example, because
they engage in armed action on the same side, or because they are parties to a
common plan, or for any other similar reason).
C. GENOCIDE
Genocide-that is, the intentional killing, destruction, or extermination of groups or
members of a group as such-was first conceived of as a category of crimes against
humanity.38 Neither Article 6(c) of the Charter of the IMT nor Article II(l)(c) of
Control Council Law No 10 explicitly envisaged genocide as a separate category of
these crimes. However, the wording of the relevant provisions clearly shows that those
crimes encompassed genocide. The IMT and the Tokyo International Tribunal did not
explicitly mention genocide; in dealing with the extermination of Jews and other
ethnic or religious groups, they mostly referred to the crime of persecution. However,
genocide was discussed in a few other cases: in particular Hoess, decided by a Polish
court in 194839 and Greifelt and others, decided in 1948 by a United States Military
Tribunal sitting at Nuremberg. 40
Genocide acquired autonomous significance as a specific crime 'in 1948, when the
UN General Assembly adopted the Genocide Convention. The Convention has many
merits, including:
a careful definition of the crime (Article II);
punishing other acts (conspiracy, incitement, attempts, and complicity)
connected with genocide (Article III(b)-(e));
37 See 18 ILR at 542. This holding would not be right with respect to war crimes since a war criminal need
not identify himself with 'the persecuting regime or its evil intention'.
38 For a detailed examination of genocide see Schab as, 2000.
39 Trials of War Criminals, vol Vll, at p I1ff.
40 See Trials of War Criminals, vol V, at pp 88-169.
INTERNATIONAL CRIMINAL LAW 743
prohibiting genocide regardless of whether it is perpetrated in time of war or
peace (Article I);
treating genocide as both a crime involving the criminal responsibility of
the perpetrator (and other participants) (Article IV) and an international
delinquency entailing the responsibility of the State whose authorities engage,
or otherwise participate, in the commission of genocide (Articles I, VIII,
and IX).
However, the Convention also has flaws or omissions, the most serious being:
the Convention confines itself to the physical destruction of groups to which
persons normally belong <involuntarily' and, often, by birth. Thus the definition
of genocide does not embrace cultural genocide (that is, the destruction of the
language and culture of a group )41 or the extermination of a group on political
grounds ..
the four classes of protected groups specified in Article II (national, ethnical,
racial, or religious groups) are not defined, nor are criteria for their definition
provided;
the enforcement mechanisms envisaged by the Convention are ineffective since
it contemplates trials before the courts of the State in whose territory the
genocide has occurred, or before a future <international penal tribunal' (Article
VI). Yet it is the authorities of the territorial State that normally lie behind acts
of genocide and national prosecutors will therefore be reluctant to act.
Moreover, it has taken over fifty years for an international penal court to come
into being. Additionally, Article VIII provides that any contracting party <may
call upon the competent organs of the United Nations to take such action' under
the Charter <as they consider appropriate' for the prevention or suppression of
genocide, whereas Article IX confers on the ICJ jurisdiction over disputes
between States concerning the interpretation, application, or fulfilment of the
Convention.
For a long time the Convention was a failure at the enforcement level, and a UN body
has only once, in 1982, pronounced on a specific instance of genocide.42 However, in
1993 for the first time a State did bring a case of genocide before the International
Court of JusticeY Strikingly, only a few cases of genocide have been brought before
national criminal courts: chief of which is the 1961 Eichmann case before the District
41 See, eg, the decision of the High Court of Australia in Kruger v Commonwealth at p 32.
42 See UNGA Res 37.123D (16 December 1982), concerning the massacre carried out by Christian falang-
ist troops in the Sabra and Shatila case.
43 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional
Measures, Order of8 April 1993, IC] Reports 1993, p 3. See also Preliminary Objections, Judgment, IC] Reports
1996, p 595.
744 ANTONIO CASSESE
Court of Jerusalem and subsequently the Israeli Supreme Court.44 After the estab-
lishment of the ICT¥, some national courts began to institute criminal proceedings
against persons accused of serious crimes in the former Yugoslavia. German courts
have thus pronounced on some cases of genocide. 45 By contrast, much more headway
has been made both at the normative level and at the level of prosecution and
punishment of genocide by international criminal tribunals.
At the norm-setting level, some major advances stand out. The major substantive
provisions of the Genocide Convention have gradually evolved into customary inter-
national law. In its Advisory Opinion on Reservations to the Convention on Genocide,
the Court held that 'the principles underlying the Convention are principles which are
recognized by civilized nations as binding on States, even without any conventional
obligation'.46 The UN Secretary-General took the same view and this has been
endorsed implicitly by the UN Security Council,47 and explicity by the ICTR in
Akayesu48 and by the ICTY in Krstic. 49 In addition, at the level of State responsibility
it is now widely recognized that customary rules on genocide Impose erga omnes
obligations, that is, lay down obligations towards all other member States of the
international community, and at the same time confer on any State the right to
require that acts of genocide be discontinued. Finally, those rules now form part of jus
cogens or the body of peremptory norms, ie, they may not be derogated from by
international agreement (nor a fortiori by national legislation). Genocide has now, of
course, been specifically provided for in these terms in the Statutes of the ICTY,
Article 4(2), the ICTR, Article 2, and the ICC, Article 6, and the first two courts
have had the opportunity to try numerous persons accused of this crime, delivering
important judgments on the matter. 50
D. OTHER INTERNATIONAL CRIMES (AGGRESSION, TORTURE,
TERRORISM)
This section considers three forms of international crime that share two main
features. First, they are not normally regarded as so-called 'core crimes', that is a
44 See District Court ofJerusalem, judgment of 12 December 1961, in 36 ILR 5; Supreme Court ofIsrael,
judgment of29 May 1962, 36 ILR 277.
45 See Jorgic, decided in 1997 by the Higher State Court of Dusseldorf (3 Strafrecht 215/98), confirmed by
the Federal Constitutional Court in 1999 (2 BvR 1290/99), and the Constitutional Court in 2000. The accused
was found guilty and sentenced to life imprisonment.
46 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, IC] Reports 1951, p 15 at p 24.
47 See Report of the Secretary-General Pursuant to para 2 of Security Council Resolution 808 (1993),
UN Doc S/25704, at para 45.
48 ICTR, Akayesu, para 495.
49 ICTY, Trial Chamber, Prosecutor v Radislav Krstic, Judgment, Case No IT-98-33 (2 August 2001),
para 54l.
50 ICTR, Akayesu, paras 204-228; ICTR, Kayishema and Ruzindana, ICTR, Trial Chamber, paras 41-49;
ICTY, Trial Chamber, Prosecutor v Goran Jelisic, Judgment, Case No IT-95-10-T (14 December 1999), paras
78-83; ICTY, Krsticparas 539-569.
INTERNATIONAL CRIMINAL LAW 745
category comprising the most heinous crimes (war crimes, crimes against humanity,
and genocide). Secondly, at least at present, none of them fall under the jurisdiction of
any international criminal tribunal or court, albeit for different reasons. It may prove
useful to dwell briefly on this second distinguishing trait.
Although the crime of aggression fell within the jurisdiction of the IMT and the
IMTFE following the Second World War, it is currently considered too politically
charged to be defined in sufficiently clear and exhaustive criminal provisions and
entrusted to international independent judicial bodies for adjudication. In the case
of torture as a discrete international crime, the failure to grant an international
court or tribunal jurisdiction can probably be explained by a belief that tackling
torture as a crime connected with armed conflicts (war crime) or as a large-scale
or widespread criminal conduct (crime against humanity) has been more in need
of attention-to which might be added the known reluctance of State prosecutors.
In contrast, torture practised by State officials or with their connivance or com-
plicity is still felt by States to be a matter pertaining to their domestic domain,
where international intrusions are not welcome, hence in principle falling under
their own criminal jurisdiction. As for terrorism, most States still feel this is an
offence that, being imprecisely defined at the level of international criminal law,
must be prosecuted at the national level, by individual or joint enforcement and
judicial action.
Whatever the reasons for the present situation, the failure to extend inter-
national adjudication to these three classes of crimes is a matter of regret. Indeed,
entrusting an international judicial body with the task of pronouncing upon
aggression, torture as a crime per se, or international terrorism, would offer at least
two major advantages. First, it would significantly contribute to the fight against
impunity for these odious crimes. Secondly, it would ensure respect both for the
principle of impartiality of courts and for the fundamental rights of the accused.
1. Aggression
Aggression by one State against another was already prohibited by international
law before the Second World War by a number of bilateral or multilateral treaties
of alliance as well as by the Covenant of the League of Nations and the 1928 General
Act (the Pact of Paris). Hence if a State engaged in aggression it committed an
international wrongful act entailing State responsibility.
Aggression was first regarded as an international crime involving individual
criminal liability in the London Agreement of 8 August 1945 establishing the IMT.
Article 6(a) of the IMT Charter, annexed to the Agreement, provided as follows:
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal
for which there shall be individual responsibility: (a) CRIMES AGAINST PEACE: namely
planning, preparation, initiation or waging of a war of aggression, or a war in violation
of international treaties, agreements or assurances, or participation in a Common Plan or
Conspiracy for the accomplishment of any of the foregoing.
 ANTONIO CASSESE
Thus wars of aggression were only one of the sub-categories of the broader category
of 'crimes against peace'. On 11 December 1946 the UN GA unanimously adopted
Resolution 95 (I) by which it 'affirmed' the 'principles of international law recognized
by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal'. Thus,
all States then members of the UN came to approve both the definition of crimes
against peace and its application by the IMTs. However, the definition was not
subsequently followed up in an adequate fashion, in contrast with other crimes
recognized by the IMT which were addressed in various conventions.
The initial problem was that the major powers preferred to avoid defining this
breach of the ban on force laid down in Article 2(4) of the UN Charter, in order to
retain leeway in the application of that provision both by each of them individually
and by the Security Council collectively. However, the UN General Assembly did
adopt a definition in Resolution 3314 (XXIX) of 14 December 1974 but this was
deliberately left incomplete, Article 4 providing that the definition was not exhaustive
and leaving to the Security Council a broad area of discretion, empowering it to
characterize other acts as aggression under the Charter. Furthermore, the resolution
did not specify that aggression could entail both State responsibility and individual
criminal liability. In 1996 the ILC adopted a Draft Code of Crimes Against Peace and
Security of Mankind51 and although this does contain a definition, this is rather
circular and disappointing, Article 16 providing that 'An individual, who, as leader or
organizer, actively participates in or orders the planning, preparation, initiation or
waging of aggression committed by a state, shall be responsible for a crime of aggres-
sion'. The Statute of the ICC, while providing for the crime of aggression in Article 5,
stipulates that the Court shall exercise jurisdiction over such crime once a provision
defining it is adopted through an amendment of the Statute.
Not surprisingly, since 1946 there have been no national or international trials for
alleged crimes of aggression, although States have engaged in acts of aggression in
many instances, and in a few cases the Security Council has determined that such acts
have been committed by States. 52 Furthermore, no agreement was reached on the
definition of aggression in the negotiations leading up to the adoption of the ICC
Statute in 1998. Indeed, many African and Arab countries wanted to hold to the 1974
definition, and even broaden it, while other States, including Germany, proposed
solutions better tailored to suit the needs of criminal law. It would seem however that
the main bone of contention concerned the role of the UN Security Council: were its
determinations to be binding upon the Court? Could it thus stop the Court from
prosecuting alleged cases of aggression? Or was the Court instead free to make its own
findings, whatever the deliberations of the supreme UN body? In the event States
51 UN Doc N51/332.
52 The SC has, for example, characterized certain actions or raids by South Africa and Israel as 'acts
of aggression'. See, eg, SC Res 573 (4 October 1985), concerning Israeli attacks on PLO targets, and SC Res 577
(6 December 1985), concerning South Africa's attacks on Angola.
INTERNATIONAL CRIMINAL LAW 747
agreed upon Article 5(2), according to which the Court will exercise jurisdiction over
the crime of aggression only if and when an amendment to the Statute is adopted by
the Assembly of States Parties with a view to both defining the crime and setting out
the conditions under which the Court may exercise its jurisdiction.
It would however be a mistake to believe that since no general agreement has been
reached on an exhaustive definition of aggression, perpetrators of this crime may
not be prosecuted and punished. It is true that this is an area in which States seek to
retain a broad margin of discretion. Nevertheless, at least some traditional forms of
aggression are prohibited by customary international law, and such acts cannot be
justified as a matter of self-defence pursuant to Article 51 of the UN Charter (and the
corresponding customary rule). These forms of aggression may therefore be seen
as providing the objective elements of the crime and are basically those envisaged by
the 1974 Declaration. This was confirmed, at least in part, by the ICJ in the 1986
Nicaragua case where it held that Article 3(g) of the Declaration reflected customary
international law. 53
International practice also seems to bear out the proposition that customary rules
have evolved to the effect that at least some instances of aggression as recognized in
customary international law may also be regarded as criminalized. For instance,
nobody would deny that the attack by Iraq on Kuwait in 1990 was not only a breach
of Article 2(4) of the UN Charter (prohibiting the use or threat of force), not justified
by self-defence, but also was an instance of the international crime of aggression,
entailing individual criminal responsibility.
Customary international law, then, now appears to consider the planning, or organ-
izing or preparing or participating in the first use of armed force by a State against the
territorial integrity and political independence of another State in contravention of
the UN Charter, provided the acts of aggression concerned have large-scale and
serious consequences, to be an international crime. In order for this crime to be
committed, there must be criminal intent (dolus). It must be shown that the perpetra-
tor intended to participate in aggression and was aware of the scope, significance, and
consequences of his action or, at least, knowingly took the risk of bringing about the
consequences of his action (recklessness).54 In contrast, engaging in an armed conflict
in violation of international treaties proscribing resort to armed violence, or partici-
pating in a conspiracy to wage aggressive war (that is, planning aggressive war without
such planning being followed by action or at least an attempt), are not international
crimes, although they may constitute international wrongful acts giving rise to State
responsibility.
53 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),
Merits, Judgment, ICJ Reports 1986, p 14 at para 195. Article 3(g) of the 1974 Declaration provides that
aggression includes cases where a State 'sends or is substantially involved in sending into another State armed
bands with the task of engaging in armed acts against the latter State of such gravity that they would normally
be seen as aggression'.
54 See Krauch and others (IG Farben case) in Trials o/War Criminals, vol 8, at p 1108); Goring and others,
in Trial o/Major War Criminals, vol 1 (the holding of the IMT concerning Schacht at pp 307-310).
 ANTONIO CASSESE
2. Torture
Torture is not only prohibited when it is part of a widespread or systematic practice,
thus amounting to a crime against humanity. Torture is also proscribed when it is
committed as a single act, outside any large-scale practice. In this case, if torture is
perpetrated in time of armed conflict, it is a war crime. It may also be a discrete
crime under customary international law, whether committed in time of peace or in
time of armed conflict. There is an important difference among these various
categories.
In time of war or internal armed conflict a serviceman may incur criminal liability
for a war crime if he tortures enemy military personnel or an enemy civilian. In
addition, and contrary to the finding of the German Federal Court of Justice in the
Sokolovic case,55 it is not necessary that a State official be involved in the torture
process for a war crime to be committed: a private individual not acting in an official
capacity may perpetrate the crimes of torture in time of war if the torture is commit-
ted against either an enemy belligerent (or another lawful combatant) or against a
protected person who has either the nationality of the enemy or is under the control
of the adversary (as is often the case in situations of internal armed conflict). How-
ever, in both these cases, the torture must be linked to the armed conflict if it is to
qualify as a war crime: acts of torture performed by one civilian against another
outside of, and without any nexus with, the context of the armed conflict are 'ordin-
ary crimes' under the domestic law of the State concerned rather than international
crimes. An example would be the torture of a civilian on a neighbour out of sadism,
or on another civilian to take vengeance for a previous personal wrong.
Torture may also amount to a crime against humanity, not only in time of internal
or international armed conflict but also in time of peace. However, in order to do so,
it must form part of a widespread or systematic practice since, as has been explained
above, this is a general requirement of all crimes against humanity. Moreover, the
accused must know that his acts of torture form part of this widespread or systematic
practice. Once again, and contrary to the finding of the ICTY in Furundiija,56 a
private person may commit torture as a crime against humanity as there is no need
for a State" official to be involved in the specific act. It is, however, implicit in the very
definition of this class of crimes that, in addition to the specific case of torture
prosecuted, numerous other acts of torture are being or have been perpetrated with-
out being punished by the authorities; in other words, there is, or has been, implicit
approval or condonation by the authorities, or at least they have failed to take
appropriate action to bring the culprits to book. To put it differently, there must be at
least some sort of 'passive involvement' by the authorities.
55 Sokolovie, 21 February 2001, Federal Court of Justice, BGH 3 StR 372/003 at pp 16-19. The Court
required, for a war crime to exist, that among other things torture be practiced 'by a State organ or with State
approval' (at p 16), thereby expressing misgivings about the notion of torture laid down in Article 7(1)(f) of
the ICC Statute (at pp 17-18).
56 See ICTY, Trial Chamber, Prosecutor v Anto Furundiija, Judgment, Case No IT-95-17/1-TlO (10
December 1998), para 162.
INTERNATIONAL CRIMINAL LAW 749
Torture, can also be a discrete crime in itself, as well as being a form of crime against
humanity or a war crime. Torture as a discrete crime may be perpetrated either in
time of peace or in time of armed conflict. 57 However, under Article 1(1) of the 1984
UN Convention against Torture, the 'pain or suffering' that is a necessary ingredient
of torture must be inflicted 'by or at the instigation of or with the consent or acqui-
escence of a public official or other person acting in an official capacity'. The need for
de jure or de facto State involvement stems from the fact that in such cases torture is
punishable under international rules even when it constitutes a single or sporadic
episode and it is consequently necessary to distinguish between torture as a common
or 'ordinary' crime (for example, torture of a woman by her husband, or of a young
man by a sadist) and torture as an international crime covered by international rules
on human rights.
It would seem that although they differ in many respects, the three categories of
torture (as a war crime, as a crime against humanity, as a discrete crime) share one
fundamental element: although there must be a purposive element in the commission
of the torture, it is not necessary that that purpose be the extraction of a confession
or information from the victim. Instead, the aim of torture as an international
crime may be not only to obtain information or a confession but also to punish,
intimidate, or humiliate a person, to coerce the victim or a third person to do or
omit to do something, or to discriminate, on any ground, against the victim or a third
person.58
The conduct prohibited as torture as a discrete crime is authoritatively laid down in
Article 1(1) of the 1984 UN Convention against Torture. As the ICTY held both in
Delalic and others (paras 455-474), in Furundiija (para 257), and Kunarac (paras 483-
497), 'there is now general acceptance [in the world community] of the main elements
contained' in that definition. The objective elements of torture may therefore be held
to consist of (i) 'any act by which severe pain or suffering, whether physical or mental,
is [... ] inflicted on a person'; (ii) 'such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity'; (iii) such pain or suffering does not arise 'only from' nor
is it 'inherent in or incidental to lawful sanctions'. The mens rea can be deduced from
the very nature of torture and Article 1 of the 1984 Convention, which has to a
large extent become part of customary law, itself provides that the infliction of pain
or suffering must be 'intentional'. It appears, therefore, that criminal intent (dolus)
is always required for torture to be an international crime. Other less stringent
subjective criteria (recklessness, culpable negligence) are not sufficient.
57 See ICTY, Trial Chamber, Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovie, Judgment,
Case No IT-96-23 and IT-96-2311 'Foca' (Kunarac and others) (22 February 2001), paras 488-497 with a
slight departure from the previous judgments of the ICTR in Akayesu, para 593 and the ICTY in Furundiija,
para 162.
58 See among other cases ICTY Furundiija, para 162, a case that, however, referred specifically to torture as
a crime against humanity.
75 0 ANTONIO CASSESE
3. Terrorism
(a) What is terrorism? Although the question of punishing terrorism as a crime
was debated in the UN for more than thirty years following the Second World War,
States were seemingly unable to agree upon a definition of terrorism for this purpose.
Third World countries staunchly clung to their view that terrorism did not include
acts of violence by so-called 'freedom fighters', that is, individuals and groups
struggling to achieve self-determination. Furthermore, developing countries insisted
that no treaty banning terrorism could be adopted unless the historical, economic,
social, and political causes underlying terrorism were studied in depth and
thrashed out at the same time (see, among others, Greenwood, 1989; Oeter, 1989;
Cassese, 1989).
As a result, scholars and diplomats alike generally take the view that since States
are yet to agree upon a definition of terrorism; it would be impossible to criminalize
terrorism under international law. Therefore, alt40ugh individuals can be held crim-
inally responsible for some specific forms of terrorism which are prohibited by
particular treaties-for example, hijacking of aircraft, terrorist acts against inter-
nationally protected persons including diplomatic agents, the taking of hostages,
terrorist acts against the safety of maritime navigation, terrorist bombing, financ-
ing of terrorism59 -terrorism per se is not a discrete crime under customary
international law.
I do not consider this view to be correct. A definition of terrorism does exist,
and the phenomenon also amounts to a customary international law crime. Terror-
ism itself is expressly prohibited in many treaties, admittedly without definition but
also without qualification. For example, Article 33(1) of the Fourth Geneva Con-
vention of 1949 provides that 'collective penalties and likewise all. measures of
intimidation or of terrorism are prohibited'. Similarly, Article 4(2)(d) of the Second
Additional Protocol of 1977, on internal armed conflicts, prohibits 'acts of terror-
ism' 'at any time and in any place whatsoever'. Other examples include the ICTR
Statute, Article 4 which, following the approach of the Second Additional Protocol,
grants the Tribunal jurisdiction over 'acts of terrorism' perpetrated in an internal
armed conflict. Plainly, the use of the terms 'terrorism' or 'acts of terror' without
setting out in detail what they cover suggests that the draftsmen had a fairly clear
idea of what was being addressed. Deliberately or unwittingly, they were referring to
a general notion that underlies the treaty provisions and which is also laid down in
customary rules.
In 1999 the UN General Assembly adopted the International Convention for the
Suppression of the Financing of Terrorism60 which not only prohibits certain acts
of terrorism but does provide a· definition. This definition takes a twofold approach:
first, in Article 2(a) it refers to the acts prohibited by nine other treaties listed in the
59 See n 43 above.
60 GA Res 54/109 (9 December 1999).
INTERNATIONAL CRIMINAL LAW 751
Annex61 ; secondly, in Article 2(1)(b) it provides a formula that completes the previous
'definition by reference' and provides that terrorism is:
Any ... act intended to cause death or serious bodily injury to a civilian, or to any other
person not taking an active part in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a population, or to compel a
government or an international organization to do or to abstain from doing an act.
Strikingly, the 1998 Arab Convention for the Suppression of Terrorism defines in
Article 1(2) terrorist acts along the same lines 62 and this approach has received
support in State practice. Numerous national laws expressly prohibit terrorism and
do so in very similar terms 63 and the Supreme Court of Canada in the Suresh case
held that this definition 'catches the essence of what the world understands by
"terrorism" '. It accepted that 'particular cases on the fringes of terrorist activity
will inevitably provoke disagreement' and that 'Parliament is not prevented from
adopting more details or different definitions of terrorism' but nonetheless held that
the definition was sufficiently 'certain to be workable, fair and constitutional' and
therefore used it for interpreting the Canadian Immigration Act. 64
In sum, broad agreement has evolved on a general definition of terrorism which is
both acceptable and sufficiently clear65 and which renders it a crime not just as a
matter of treaty obligation but also as a matter of customary law. However, despite the
gradually emerging consensus on an unqualified definition of terrorism, the drafters
of the ICC Statute decided not to include this crime among those over which the new
Court would exercise jurisdiction, largely due to the alleged lack of an agreed defin-
ition. Other grounds offered were that the inclusion of the crime would result in the
politicizing of the Court, that it was not a sufficiently serious offence and, finally, that
61 The Annex lists the Conventions on Unlawful Seizure of Aircraft (1970); Unlawful Acts against the
Safety of Civil Aviation (1971 (Montreal Convention»; Crimes against Internationally Pr~tecte~ Persons
(1974); Taking of Hostages (1979); Protection of Nuclear Material (1980); Unlawful Acts aga:nst.VlOlence .at
Airports Serving Civil Aviation (1988); Unlawful Acts against the Safety of ~aritime Navlg~1:J.~n, and Its
Protocol regarding Fixed Platforms (1988); Suppression of Terrorist Bombmg (1997). ThIS lIst can be
amended (see Convention, Article 23). .
62 Terrorism includes 'Any ·act or threat of violence, whatever its motives or purposes, that occurs m ~e
advancement of an individual or collective criminal agenda and seeking to sow panic among people, causmg
fear by harming them, or placing their lives, liberty and security in danger: or seeki~~ to cause damage .to the
environment or to public or private installations or property or occupymg or selZmg them, or seekmg to
jeopardize a national resource'. .
63 For a careful perusal of some of these laws, see Murphy, 1989, pp 22-29; LeVie, 1995, pp 317-368.
64 Supreme Court of Canada, judgment of 11 January 2002, para 98. The Supreme Cou~t state~ (~a:a 93)
that it shared the view of the Federal Court of Appeal in the same case that the term terrorIsm IS not
inherently ambiguous 'even if the full meaning ... must be determined on an incremental basis' (para 69 of
the appellate judgment). . . .
65 Moreover, there are no exceptions to this. See, eg, UN Declaration on Measures to Ehmmate TerrOrIsm,
GA Res 49/60 (9 December 1994), a position reflected in subsequent resolutions (eg 49/60 (17 February
1995), Res 511210 (16 January 1997), Res 55/158 (30 January 2001». However, Article 2(a) of the 1998 Arab
Convention for the Suppression of Terrorism does provide an exception for acts committed in the context of a
struggle for self-determination of peoples.
752 ANTONIO CASSESE
terrorism would be more effectively addressed by prosecutions at the national level,
with States taking coordinated action if necessary.
(b) Terrorism and international criminal law. The crime of international terrorism
has three main elements:
the acts must constitute a criminal offence under most national legal systems
(for example, assault, murder, kidnapping, hostage-taking, extortion, bombing~
torture, arson, etc.);
'the acts must be aimed at spreading terror (that is, fear and intimidation) by
means of violent action or the threat thereof directed against a State, the public,
or particular groups of persons;
they must be politically, religiously, or otherwise ideologically motivated, and not
motivated by the pursuit of private ends.
However, terrorism has a 'chameleon-like' character (Roberts, 2002, p 18) and may
take on many diverse forms and manifestations. Hence it not surprising that it may
fall within a variety of categories of crime (see, eg, Dinstein, 1989). Depending on the
circumstances, terrorism may amount to a war crime (if there is the appropriate actus
reus and mens rea), to a crime against humanity (if the requisite objective and
subjective elements are present), or to a distinct international crime in its own right.
It should also be noted that the victim protected may vary depending on the class
of crimes to which the terrorist act may belong. Terrorist acts prohibited as war
crimes must be directed against civilians or civilian objects; terrorist acts falling under
the category of crimes against humanity are normally criminalized if they target
civilians;66 finally, when terrorist acts can be classified as international crimes of
terrorism, they are prohibited whatever their target. The relevant characteristics of
war crimes and crimes against humanity have already been discussed in Sections B
and C, so it is terrorism as a discrete crime that will be considered here. However, all
three categories share the same general features.
First, all forms of the crime must have an internationalist element: terrorist acts
must show a nexus with either an international or internal armed conflict; be of such
a magnitude as to exhibit the hallmarks of a crime against humanity; or they must
involve State authorities and exhibit a transnational dimension, in that the acts
are not confined to the territory of one State but spill over and jeopardize the
security of other States in a significant fashion. This international element is evi-
denced by the provisions of international treaties, the terms of which do 'not apply to
'domestic' terrorism. 67
Another general feature is that terrorist acts are criminal whether perpetrated
by individuals acting in a private capacity (normally as members of a terrorist group
66 This view is reflected in the Statutes of the various international criminal tribunals. See ICTY, Article 5;
ICTR, Article 3; ICC, Article 7. However, in my opinion this is at variance with customary law.
67 See, eg, Article 3 of the UN Convention on Terrorist Bombing; Article 3 of the Convention on Financing
of Terrorism, of20 January 2000.
INTERNATIONAL CRIMINAL LAW 753
or organization) or by State officials. In both instances State responsibility might be
engaged as well as the criminal responsibility of the individual. In the former case
States may be internationally responsible if they acquiesce in, tolerate, or encourage
activities within their territory directed towards the commission of such acts abroad. 68
In the latter case, of course, the State on whose behalf the agent engages in terrorist
acts may incur international responsibility for breaching international customary
norms or any applicable treaty rules making it unlawful to organize, instigate, assist,
finance, or participate in terrorist acts in territories of other States.
(c) Terrorism as a discrete international crime. Not all terrorist acts amount to inter-
national crimes. Terrorist activities carried out within a State are criminal offences
punishable under the law of the relevant State and although other States may be
bound by treaty obligations to cooperate in searching for, prosecuting, and punishing
the perpetrators of terrorist actions, that in itself does not render a domestic terrorist
act an international offence.
Terrorist acts amount to a discrete international crime when:
they are not limited in their effects to one State solely, but transcend national
boundaries as far as the persons implicated, the means employed, and the
violence involved are concerned;
they are carried out with the support, the toleration, or acquiescence of the State
where the terrorist organization is located or of a foreign State. This element of
State-promotion, State-toleration, or State acquiescence (eg, due to inability to
eradicate the terrorist organization), is critical to the elevation of the offence
to the rank of international crime because it is this which transforms the act
from being a criminal activity which States can tackle though bilateral or
multilateral cooperation into an international crime;
they are an act of concern for the whole international community and a
threat to the peace;
they are very serious or large-scale.
These latter features in particular were underscored by the UN Security Council
in Resolution 1368 (12 September 2001), adopted in the wake of the terrorist attacks
in New York and Washington. The resolution 'unequivocally' condemned 'in the
strongest terms the horrifying terrorist attacks which took place on 11 September
2001 in New York, Washington DC and Pennsylvania' and regarded such acts, 'like
any act of international terrorism, as a threat to international peace and security'.
That those acts which fulfil these criteria can be regarded as international crimes is
also underlined by this resolution, which calls on all States 'to work together urgently
to bring to justice the perpetrators, organizers and sponsors of these terrorist
attacks; ... those responsible for aiding, supporting or harbouring the perpetrators,
68 See, inter alia, the various UN General Assembly resolutions cited in n 60 above.
754 ANTONIO CASSESE INTERNATIONAL CRIMINAL LAW
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CASSESE, A (2003), International Criminal
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CASSESE, A, GAETA, P, and JONES, JRHJ,
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INTERNATIONAL
93 AJIL 18.
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PROTECTION OF
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ZAPPALA, S (2003), Human Rights in Inter- the State systems that offer the first line of defence and that are so complexly intertwined
national Criminal Trials (Oxford: Oxford with international organizations and processes. The very notion of protection must be
University Press). reconsidered in the context of human rights, so that it reaches beyond conventional under-
ZIMMERMANN, A (2002), 'Superior standings of judicial or other enforcement of the law and the related provision of civil
Orders', in Cassese, Gaeta, and Jones remedies. The need for reconsideration stems from several characteristics of the human
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ZWANENBURG, M (1999), 'The Statute for teristics emphasize how deeply human rights and their violations implicate a State's
an International Criminal Court and the political and social structures and culture. It is more productive to understand protection
United States: Peacekeepers under Fire?', as extending to ways of changing the political and cultural understandings and assump-
10 EJIL 124.
tions that may underlie violations. Without such changes, violations may be temporarily
arrested but the risk remains high of their recurrence. In light of these observations, many
civil and political rights will be capable of only progressive realization, particularly outside
the world of liberal democracies where such kinds of rights are familiar and entrenched.
Different views of these matters and a different rhetoric about immediate or progressive
DINSTEIN, Y (1975), 'International Criminal realization may natura.lly prevail within the distinct but related worlds of victims of
Law',5 Israel YHR 55-87. violations, human rights advocates, and academic and other critical observers.
KIRK McDONALD, G and SWAAK-GOLDMAN,
0, (eds) (2000), Substantive and Pro-
cedural Aspects of International Criminal
Law (The Hague: Kluwer). 1. INTRODUCTION
SLUITER, G (2002), International Criminal
Adjudication and the Collection of Evi- The charge to write a chapter for this volume on the 'international protection of
dence: Obligations of States (Antwerp, human rights' evoked at the start a fairly dear image of the task. International norms,
Oxford, New York: Intersentia). organizations, and processes that contributed to protection of human rights were to
 758 HENRY J STEINER
be the focus, rather than the variety of national legal and political systems that offer
the first line of defence. What came to mind about international protection was the
range of pressures applied by international bodies or by States against delinquent
States-critical diplomatic notes, investigative reports, and recommendatory resolu-
tions; judgments by courts or other dispute-resolution bodies; threats to withhold
trade or aid; boycotts and embargoes; military interventions-in the effort to arrest
violations and increase the likelihood of compliance.
These images soon gave way to a more problematic view of the topic. In the world
of human rights, can we mark a clear boundary between national and inter-
national institutions and processes, at least those international institutions in
which States themselves (rather than independent experts elected by States) are the
active, voting participants? Should a State's internalization and application of
an international norm be understood purely as a matter of domestic law? Or are
international and national legal and political systems so pervasively and intricately
intertwined in the field of human rights that analysis of international protection
cannot be a study apart but must stress the many interrelationships and
complementary roles?
The problematic aspect of the notion of protection concerns the reach of the term.
Can we grasp the distinctive needs and challenges of the human rights movement if
we reduce the international protection of rights to its popular meaning: maintaining
order and stability through enforcement of the law, subject (within liberal States)
to the constraints of the rule of law? In both national and international contexts,
should the idea of human rights protection include, for example, the effort to change
background conditions and cultural assumptions in such a way as to bring about
greater acceptance of human rights norms?
Such questions about the international dimension of human rights and the notion
of protection give this chapter its structure. We start with the more formal and
positive dimension of our inquiry. Thus Section II describes the structure, powers, and
functions of some leading international organizations and organs concerned with
human. rights, to indicate their links to States and the kinds of protection that they
may offer. Section III analyses five characteristics of the human rights movement that
distinguish it from many other bodies of international law and that present some
puzzling questions about the kinds of international protection that are desirable and
workable. Some of the characteristics portrayed-the relationships between human
rights violations and deep political and cultural features of the State, the progressive
realization of civil and political rights-appear to be at odds with much of the prevail-
ing discourse about the nature of those rights and the means for their protection.
Section IV suggests why victims of violations, human rights activists, and academic
and other critical observers who are committed to human rights ideals may naturally
speak with different voices and use different language to describe the content and
directions of international protection of human rights.
The chapter concentrates on the universal human rights system-universal
in membership and in reach-that is so closely linked to the United Nations.
INTERNATIONAL PROTECTION OF HUMAN RIGHTS 759
That system presents far greater variety among its global participants in ideological,
cultural, political, and socio-economic terms than do any of the three regional human
rights regimes in Africa, the Americas, and Europe. Such diversity permits a more
vivid presentation of the issues here explored.
The discussion refers almost exclusively to civil and political rights. Given their
intrinsic importance and formal status of equality within the human rights corpus,
economic and social rights merit equal attention here. They raise, however, too many
distinctive issues to be exarnihed within the available space. The same reason for
omission applies to a field of rising importance and ever closer interaction with
human rights, the humanitarian laws of war.
II. THE KINDS OF PROTECTION PROVIDED BY
INTERNATIONAL ORGANIZATIONS
A. WHY CREATE INTERNATIONAL ORGANIZATIONS?
Is it necessary or even useful to create intergovernmental human rights organizations
(IGOs) to complement customary and treaty law? Are not matters like imple-
mentation and protection better left in the hands of governments and civil society
in the different States, particularly since human rights issues are imbedded in
national (and sub-national, local) governance, traditions and cultures? In such
respects, human rights differ from situations presented by, say, international trade or
environmental law where a State's violation of a treaty affects other treaty parties'
interests more severely than it does its own population. In such typical kinds of treaty
regimes based on reciprocity, the relevant issues about trade or environment are
not as deeply imbedded in political structures, traditional practices, and cultural
assumptions.
These doubts become the more plausible when we take into account that standard-
setting by itself-the declarations and treaties that dominated the early decades of the
human rights movement, and the related spread of this new discourse of international
human rights-may advance the cause of human rights. The internalization and
constitutionalization of treaty norms by many States has made those norms a key
ingredient of the domestic legal system invoked by courts. The legislature, executive,
and diverse groups in civil society absorb these norms into rich and ever more inter-
national legal and political debate.
A5 a consequence, human rights advocates and a politically mobilized population
may now base their demands for political and social change on the new internal law
responsive to treaty commitments as well as customary law. The gap between that law
and the government's actions becomes strikingly apparent to all. Even in the absence
of intergovernmental organizations, at least rhetorical support for internal advocates'
arguments to narrow that gap may come from other States and NGOs. In such ways,
 HENRY J STEINER
the rhetoric of rights may serve to empower a population, spur demands for change,
and increase the pressure on a State.
We can indeed imagine a world where all States are committed in good faith to
observe human rights, and hence where international organizations would be
unnecessary. But even in this ideal world, disputes will inevitably arise over questions
of interpretation stemming from conflicts between rights, diverse political and
cultural understandings about the meaning of a term or concept in the treaties, and
the effect of changing circumstances such as the end of the Cold War on the human
rights corpus. IGOs appear at least useful, perhaps essential, to deal with these varied
perspectives and understandings. Their possibilities range from an organization
charged with maintaining a forum for States to explore these issues, to a court whose
opinions could have an advisory or recommendatory character or stand as legally
binding judgments.
More to the point, the assumption above about the good-faith commitment of all
States to a human rights regime defies our knowledge of the world and of the human
rights movement's history. Reliance on States alone to observe such norms would be
patently absurd. In recent decades, massive violations of basic physical security norms
including genocide have captured the world's attention. Cambodia and Rwanda offer
extreme examples. As most of these episodes demonstrate, we have no basis for
relying on other States to apply economic or military force against such systemic
violations, whether unilaterally or through coordinated action -let alone against
delinquent States committing less dramatic violations of rights, perhaps related to a
free press or due process.
If then the human rights treaties were left free floating rather than anchored
in intergovernmental organizations endowed with some powers of protection, the
movement would have achieved some but a very modest advance. IGOs are
indispensable for a more effective movement. How should such organizations be
constructed, what relationships should they bear to national systems, what powers
and functions should they have vis-a-vi~ States? Moreover, what duties should States
bear toward IGOs or their decisions?
Such issues were never systematically examined for IGOs as a group during
the evolution of the universal hum~n rights system. The UN Charter created or
authorized the creation of the major organs and official posts that are now concerned
with human rights issues: the Security Council and General Assembly, the UN Com-
mission on Human Rights, its Sub-Commission on the Promotion and Protection of
Human Rights, related working groups and rapporteurs, and more recently the Office
of the High Commissioner of Hu:man Rights. In addition, each of six human rights
treaties is serviced by its own committee, the so-called treaty bodies or organs. These
committees bear a close family resemblance, and as a whole differ markedly from the
UN Commission on Human Rights. This range of universal organizations and organs·
developed at different times and in different contexts over a half century; indeed,
many of them have played significant roles only over the last two decades. Moreover,
each has experienced its independent and ongoing internal development with respect
INTERNATIONAL PROTECTION OF HUMAN RIGHTS
to its powers and functions, such that the original understandings about these matters
now appear far more modest.
In the last decade, institutions and centres like the World Bank and the UN
Development Program, as well as the International Criminal Tribunals and the new
International Criminal Court, have become additional important actors in the
field of human rights, further expanding the types of pressure against and forms of
dialogue with delinquent States. Morever, starting in the 1970s, non-governmental
human rights organizations (NGOs) steadily gained power and influence. In addi-
tion to their independent activities of monitoring, reporting, and lobbying, they
have interacted closely with and left a strong imprint on the entire network of
IGOs.
The substantive provisions of the human rights treaties drew on several centuries of
an evolving and expanding tradition of rights. But neither the architecture nor powers
and functions of most of the intergovernmental institutions seemed obvious at the
time of the drafting of their constitutive instruments. We can contrast a State in a
period of transition from a repressive authoritarian regime to political democracy. Its
planners for the structure of the new regime could adopt well understood principles
for democratic government like the rule of law and the related separation of powers.
But no common stock of principles was available to suggest the design of IGOs
intended to protect human rights. In the universal system, close analogies to national
legal-political institutions like a world court of human rights of broad jurisdiction lay
beyond political possibility or even imagination.
The inevitably novel architecture and powers of these new institutions raised deep
concerns among their planners-and potential members. After all, the IGO under
negotiation might have power to implement a treaty through authoritative inter-
pretation or even to apply telling pressure against a member State. Such powers would
pose a far greater threat to a State's sovereign control over its own territory and
population than would its bare agreement to observe norms. Indeed, many States saw
even that bare agreement as a significant qualification of the sovereign control that
was broadly thought to inhere in statehood. If IGOs gained in stature and increased
their armoury of pressures against violator States, they could cut to the very bone of
sovereignty.
Negotiations during the drafting of the treaties over powers and functions ofIGOs
were notoriously contentious. The inevitable compromises sometimes led to terse and
vague provisions that left much for future decision. Neither basic principles nor a
master plan, but rather contingent compromises over time responsive to the positions
of the great powers and of regional or ideological blocs of countries, all as supple-
mented by a gradual increase in powers of international organizations through their
internal development, explain our present institutional arrangements. However
limited and inadequate those arrangements now appear, we should keep in mind how
radical and politically implausible they would have seemed when the human rights
movement got underway.
 HENRY J STEINER
B. IGOs AND NGOs
We here describe the structure, powers, and functions of several IGOs that are cori-
cerned in significant ways with human rights issues: the UN Security Council, the UN
Co~ss~on on Human Rights, the Human Rights Committee, the Office of the High
~o~sslon of Human Rights, and international tribunals with jurisdiction to try
~dlvlduals for. defined international crimes. Through these brief and formal descrip-
tIOns, the sectIOn means to illustrate the principal powers and functions of uni-
versal intergovernmental human rights organizations as a whole, and thereby provide
background for the relationships drawn in Section III between these IGOs and the
distinctive character of the human rights movement. 1 It also sketches the complex
interactions between IGOs and NGOs.
The evident inadequacies arid gross failures of these institutions in curbing human
rights violations are perhaps better known than their successes in implanting a
new discourse of human rights throughout the world, persuading numbers of States
to greater compliance, and developing the human rights movement as a whole in
both normative and institutional ways. Some causes of the failures have long been
~ppar~nt, such as the limited powers granted to these institutions and the many ways
ill WhICh the play of the diverse and often conflicting national interests of their
members, as well as of global politics and related bloc voting, has betrayed their
original commitments to advance the protection of human rights. Other less tangible
and more complex explanations stem from the human rights characteristics discussed
in Section III.
1. UN Security Council
The Security CounciF is a 'principal organ' of the UN and consists of fifteen State
members, ~ve of which are permanent (China, France, Russia, the United Kingdom,
and the Umted States) and possess a veto power with respect to all Council decisions
on non-procedural matters. Member States of the UN confer on the Council 'primary .
responsibility' to maintain international peace and security, and agree to 'accept and
carry out' the Council's decisions in accordance with the Charter.
The Council can act under Chapter VI of the Charter (Articles 33-38) to achieve
the pacific settlement of 'any dispute, the continuance of which is likely to endanger
the maintenance of international peace and security'. It is empowered to investiaate
such disputes and recommend 'appropriate procedures or methods of adjustm:nt'.
The greater power lies in Chapter VII (Articles 39-51). If the Council determines 'the
existence of any threat to the peace, breach of the peace, or act of aggression', it can
calion member States to apply sanctions of various kinds, including boycotts and
embargoes (Article 41), or to take such military action 'as may be necessary to restore
1 For systematic. descrip.tion of these institutions, see Alston, 2003(a) and (b); Buergenthal, 2003;
Cl~pharn, 2003. For illustratIons of these institutions in action see Steiner and Alston, 2000.
. and Alston, 2000, pp 649-653; pp 683-687 (with respect to East Timor), and pp 1146-47 and pp 1176-77
- See UN Charter, Articles 23-29.
INTERNATIONAL PROTECTION OF HUMAN RIGHTS
international peace and security' (Article 42). The powers conferred by Articles 39-42
well illustrate the initial conception of the Council as a body not to be occupied
with ongoing monitoring or criticism of States-more the province in human rights
of the UN Commission-but rather to respond to emergency situations threatening
international peace and security. The agreement among UN members that Article 43
contemplates, incorporating a commitment by member States to make available to
the Security Council armed forces to maintain international peace and security,
remains a dead letter.
These provisions do not confer on the Security Council any powers or functions
specifically related to human rights. In effect, human rights constitute for the Council
a second-order consideration that becomes relevant to its resolutions and exercise of
powers under Articles 41 and 42 only insofar as actual or threatened violations
of rights bear on the Council's responsibility for international peace and security.
When acting under Chapter VII in ways that address human rights issues, the Council
has described violations of rights as constituting a threat to international peace
and· security, and has characterized the action stemming from its decision as a con-
tribution to the maintenance or restoration of the peace. The circumstances in a
delinquent State leading to such characterization and action have naturally been
extreme, involving systemic repression, brutality, and often massive loss or threat of
loss of life. The Council has not taken decisions under Chapter VII that respond to
other serious human rights concerns like severe gender discrimination or repression
of speech and association.
The causal links are not difficult to see. Severe human rights violations in one State
may prompt flows of refugees to other States, enrage populations in other States that
are ethnically related to the oppressed minority in the delinquent State, or threaten
to destabilize an entire region. From its early significant involvement in the effort to
end South African apartheid, the Council has played an important role in this field,
often through its resolutions that address human rights issues in particular national
contexts or international conflicts.
Since the end of the Cold War, the Council has given more attention in its decisions
under Chapter VII to human rights issues, often in the form of resolutions addressing
a particular conflict or country or calling for the protection of civilians or other
groups like women and children. It has shown greater awareness of the relevance of
human rights concerns to the resolution of conflicts, as well as to the relevance of
punishment as a response to major human rights abuses in the context of civil war or
ethnic conflict. Moreover, the Council's heightened attention to rebuilding a shattered
society has involved human rights issues. 3
The great powers that the Council may exercise under Chapter VII have reinforced
its political character, manifested from the outset by the permanent members' veto
3 illustrations of and texts relevant to the exercise by the Council in these situations appear in Steiner
(with respect to the International Criminal Tribunals).
 HENRY J STEINER
power. Extensive negotiations among the Council's member States take place before
critical votes, such as those preceding the Gulf War and recently affecting arms inspec-
tions in Iraq. Major States supporting or opposing a given course of action intensively
lobby other Council members for their vote, using when necessary carrots and sticks
like increasing or decreasing trade or aid.
Members of the Council and the Council itself form a complex amalgam. The
members may argue and vote as independent States advancing their distinctive inter-
ests in reaching a particular institutional decision. At such times, the Council appears
less as a distinct actor than as a debating forum for States. Nonetheless, the ultimate
voted decision under Chapter VI or VII constitutes an act of the Council as a body
separate from its members exercising powers such as authorization of military force
that belong only to it.
It can cause no surprise that an organ as politically constituted as the Council and
empowered to authorize the use of force has not acted consistently in deciding
whether and how to react to gross human rights crises in a timely effort to forestall or
arrest violence. In several instances of action authorized by the Council such as Haiti
and the Gulf War, concrete interests of particular States in, for example, arresting
refugee flows or protecting oil supplies were undoubtedly among the motivations for
action. At times the use or threat of use of the veto power has blocked the Council
from action. Kosovo and Rwanda offer two recent illustrations of the Council's failure
to act under Chapter VII, although in the first case a NATO-led coalition of States
forcefully intervened despite the absence of authorization by the Council.
2. The UN Commission on Human Rights
The Commission, contemplated by Charter Article 68, was established in 1946 and
played a vital role in the drafting of the leading declarations and treaties. It now
consists of fifty-three member States elected for three-year terms. That is, like the
Security Council, its debates are between and its decisions are taken by States through
their representatives rather than by independent experts.
The Commission's role in standard-setting continues to this day as part of the UN's
complex drafting process ultimately leading to a final draft approved by the General
Assembly and submitted to States for ratification. But that role is now overshadowed
by the activity of the Commission in responding to claims of substantial violations
of rights by States. This dominant activity started in 1967 when the Commission
reversed an earlier statement that it lacked power to take action regarding complaints
about human rights violations. The policy motivating this reversal looked toward
strengthening the Commission's engagement in the worldwide campaign to end
South African apartheid. But the Commission soon came to apply its re-conceived
power of discussion, debate and passage of critical resolutions to a growing number
of States.
The politics of the Cold War frequently set the tone for argument and the voting of
the Commission. Certain States were favoured targets, whereas others, particularly
those in the Communist bloc, were effectively immune from inquiry. Since the
INTERNATIONAL PROTECTION OF HUMAN RIGHTS
collapse of the Soviet Union, the political factors influencing debate and decisions of
the Commission are perhaps less notorious, but nonetheless decisive each session
with respect to proposed action against a number of States. Dramatic illustrations
include the efforts of the United States to have human rights problems in China
and Cuba brought into the Commission's procedure for country-specific debates
and resolutions. As with resolutions before the Security Council, negotiations and
lobbying among States with a full armoury of carrots and sticks characterize the most
intense of these debates.
Today the Commission's investigative and monitoring functions, as well as its
resolutions responding to violations, fall within three broad categories: (1) public
debate about a country's problems under what is known as the 1235 procedure-that
is, authorized by ECOSOC Resolution 1235 (XLII) of 1967; (2) confidential (within
limits) consideration of a given country's human rights problems under the 1503
procedure, authorized in ECOSOC Resolution 1503 (XLVIII) of 1970 (as amended.
by ECOSOC Resolution 2000/3); ~d (3) creation by the Commission of thematic
rapporteurs or working groups that are charged with investigating and reporting
not on States as such but on types of violations such as violence against women or
arbitrary detention that may implicate a large number of States.
We here briefly describe the first and third categories. The 1235 procedure, like the
1503 procedure, addresses situations revealing a 'consistent pattern' of substantial
violations of human rights. Generally the Commission's 'thorough study' and debate
under the 1235 procedure are country-specific. It reports on the results of such
studies 'with recommendations thereon', frequently expressed in resolutions voted
by its members. That is, the Commission's resolutions, however strongly they may be
phrased and however influential they may be in applying pressure to the addressee
State to stop violations, are recommendatory and lack the obligatory character of
Security Council decisions under Chapter VII.
At its annual session, the Commission holds a public debate focusing on gross
violations in a number of States. Governments and NGOs have the opportunity at
such debates to identify States that, in their view, should be subject to the Commis-
sion's public scrutiny. States which the Commission decides to put on the '1235 list' of
'country procedures' are then discussed. NGOs may enter into consultative relations
with UN organs that permit them to participate in this discussion in structured ways.
The number of States on the discussion list has varied considerably from session
to session; in 2002 it was down to twelve country procedures. (Countries may also
be debated and resolutions passed by ad hoc decisions that do not involve the '1235
list' as such.) The debate may have varied consequences, s-qch as formulation of a
resolution ranging from the gentle and diplomatic to the harsh that will then be put
to the vote. Depending on the State, the nature and evidence of the violations, and
the contextual politics of the time, the proposed resolution will succeed or fail, and
if the former, by votes ranging from bare and contested majorities to near unanimity.
The Commission may decide to appoint a special rapporteur or representative or a
group to investigate a given country and to submit a report to it. These appointments
 HENRY J STEINER
of independent experts generally last several years and may be renewed. The investi-
gations follow no particular pattern. A visit to the country at issue mayor may not be
feasible; as a formal and practical matter, the visit depends on the State's officially
inviting the rapporteur. The appointed expert may receive information from victims
of violations within or outside the country. Most of the reports submitted by the
expert contain extensive information and recommendations. The tone varies, from
the conciliatory and complimentary (when a State has acted to end violations) to the
harshly condemnatory. Such reports may influence what action the Commission will
take at its next session.
The third category of thematic mechanisms may lead to the appointment of
issue-specific rather than country-specific rapporteurs. It has expanded enormously
since the first such mechanism was established in 1980, the Working Group on
Disappearances. By 2002, there were twenty-six: appointments, on themes as varied as
torture, independence of judges, religious intolerance, children in armed conflict,
violence against women, foreign debt, and structural adjustment policies. Some
involved a single rapporteur, some a working group.
In its early years, the politicization of the Commission's decision-making process
stemmed primarily from the Cold War. Increasingly that politiciz;:ttion reflects the
different interests and rhetoric of the post-colonial States, or particular grouping
within that broad category such as Arab or sub-Saharan States, and the developed
States of the capitalist world. The stakes are high. No government likes to be subjected
to public scrutiny about abuse of its citizens; no government likes to be censured and
shamed through a critical discussion and resolution.
The intense and successful campaigns of China over several sessions to avoid the
public discussion urged by the United States of its human rights problems illustrate
the anxiety of a State facing the threat of a strong, adverse resolution. The struggles to
pass or block a condemnatory resolution, or even to open discussion, involve the
typical inducements or threats of the protagonists to other States-trade, aid, invest-
ment permissions, special contracts, support of such States if they themselves are
threatened with public debate. Sometimes bloc voting of a regional or ideological
character and the formation of ad hoc coalitions exercise an important influence on
the outcome (Steiner and Alston, 2000, pp 634-641).
What effect crit.ical resolutions alone may have on the behaviour of the State under
discussion depends greatly on context. The State may lose prestige and influence. A
condemnatory resolution may spur political debate within a democratic regime, and
give courage to and animate dissidents within a repressive State. It may mobilize the
support of other States for applying pressure against the violator. But even strong
resolutions voted by large majorities may have a negligible effect on the State involved,
or on other States with little inclination to invest their energy or political capital in
responding to violations elsewhere.
The emphasis in the preceding description on politicization of the Commission's
work is not surprising. The more powerful international human rights organs are
composed of States of varying power, interests, ideology, and influence, as opposed to
INTERNATIONAL PROTECTION OF HUMAN RIGHTS
the independent experts who are members of the treaty bodies discussed below. Those
States develop and pursue from their home offices foreign policies involving human
rights as well as many other elements. Such policies are strongly influenced by States'
particular positions in and perspectives on regional or global politics. They are carried
by the State representatives to international organs like the Security Council and
Commission, and form part of the debates within those and other State-membership
organs of what policies to follow and actions to take. The contrast could not be greater
between such 'political' organizations charged to implement the goals stated in the
Charter and human rights instruments, and the quintessential 'legal' organization-
namely, the court or quasi-judicial committees that play so limited a role in the
universal human rights movement.
3. Treaty bodies
This chapter discusses three of the six: human rights treaties that are implemented
by a separate treaty body confined in its work to matters arising under that treaty:
the International Covenant on Civil and Political Rights (ICCPR),4 International
Covenant on Economic, Social and Cultural Rights (ICESCR),5 and the Convention
on the Elimination of All Forms of Discrimination against Women (CEDAW).6 The
7
other three treaties concern torture, racial discrimination, and children's rights.
The Human Rights Committee (subsequently referred to as the Committee)
created under Article 28 of the ICCPR remains the most significant of the six: treaty
organs. It consists of eighteen independent experts who are to perform their work
'impartially'. These Committee members are instructed to serve 'in their personal
capacity' rather than as representatives of their States of nationality. Hence they are
not (in theory) subject to instructions about what positions to assert in argument and
how to vote. The Committee performs three functions that generally characterize the
treaty bodies as a group:
(i) ICCPR Article 40 requires parties to the treaty to 'submit reports on the
measures they have adopted which give effect to the rights recognized herein
and on the progress made in the enjoyment of those rights'. The reports are to
'indicate the factors and difficulties, if any, affecting the implementation' of
the Covenant. The Committee has stressed that it intends the reports to offer
a realistic description of a State's application of human rights norms and
of a State's relevant conduct, rather than to remain abstract and formal by
emphasizing laws on the books without attention to their enforcement and
effects.
4 Adopted 1966, entered into force 1976.
5 Adopted 1966, entered into force 1976.
6 Adopted 1979, entered into force 1981.
7 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(UNCAT), adopted 1984, entered into force 1987; International Convention on the Elimination of All Forms
of Racial Discrimination (CERD), adopted 1965, entered into force 1969; and Convention on the Rights of
the Child (CRC), adopted 1989, entered into force 1990.
 HENRY J STEINER
The reports are discussed in public proceedings at which a representative
of the State is present. These dialogues between the State and the Committee
can become occasions for serious probing of States' human rights problems.
At the other extreme, they may amount to a formal presentation by the
State and an exchange of views without consequence. The Committee gives its
reactions to the report in a single document arrived at by consensus and
termed (concluding observations'. While politely phrased, the observations
may sharply criticize the State and recommend substantial changes in policy
and conduct. Those observations may be reported by media or NGOs; they
can lead to public debate in the home State.
Over recent decades, a practice has developed of informal involvement by
NGOs in the discussion of State reports. At the start of a four-week session of
the Committee (held three times annually), an NGO that is knowledgeable
about the human rights problems in the State under discussion will invite
Committee members to a meeting to discuss the State's report. It may prepare
and present an (alternative report' to the State's.
(ii) The Committee also issues General Co~ents that generally consist of
substantive interpretations of treaty provisions on a large range of topics like
privacy, torture, non-discrimination, or the right to life. The comments are
drafted and approved by the Committee in a closed process that excludes any
possibility of participation or reactions by the treaty parties during the period
of drafting.
(iii) An Optional Protocol to the ICCPR provides a complaints procedure against a
State party to the Protocol that can be invoked by citizens of that Sta~e. 8
A number of conditions must be satisfied, including the familiar requirement
of exhaustion oflocal remedies. Close to 100 States are parties to both instru-
ments. The complaint, termed a (communication', must allege a violation
of the ICCPR itself. The Committee examines communications in closed
meetings, and all proceedings are written. It decides whether a violation has
occurred, and is instructed by the treaty to (forward its views' to the State and
the individual complainant. No text defines the form or status of these
(views' -hortatory, recommendatory, or binding-or refers to remedies. But
over the years the Committee has advanced its position that the views are
morally binding on States even if not formally binding as a matter of law.
Given the Committee's other demanding tasks and the one-month duration of
each of its three annual sessions, knowledgeable observers have estimated that it is
capable of issuing only about thirty views annually. On the other hand, well over a
billion people inhabit the States that are parties to the Protocol, incl~ding many States
with poor human rights protection. Although the Committee has produced a large
8 Optional Protocol to the International Covenant on Civil and Political Rights, adopted 1966, entered into
force 1976. The complaints procedure is analyzed and criticized in Steiner, 2000.
INTERNATIONAL PROTECTION OF HUMAN RIGHTS
and important body of decisions over the years that develop the Covenant's pro-
visions, it seems evident that the complaints procedure cannot serve as an effective
(review' of human rights violations that would assure individual justice and the rule
oflaw within the States parties to the ProtocoL Moreover, the record of compliance by
a number of States with views of the Committee providing for damages or release of a
prisoner is spotty.
Like the UN Commission on Human Rights, the Human Rights Committee and
the five other treaty organs have evolved in significant ways through internal
decisions, all in the direction of expanded power. Several treaties have been amended
to increase powers. Treaty provisions differ for the six committees. For example, some
treaty organs are empowered to conduct on-site visits under certain conditions, and
to refer emergency cases to the Security Council for its consideration (Steiner and
Alston, 2000, pp 773-777).
4. The Office of the High Commissioner of Human Rights
The mandate of the High Commissioner of Human Rights was originally spelled out
in GA Resolution 481141 of 1993. Under the Secretary-General, the HCHR is the UN
official with principal responsibility for human rights. The tasks of the High Commis-
sioner include promotion and protection of the effective enjoyment of rights, provi-
sion of technical assistance to States in the field of human rights, engagement of
governments in dialogue to secure respect for human rights, and enhancement of
international cooperation. The Office of the High Commissioner for Human Rights
has given growing attention to creating and strengthening national human rights
institutions.
The present High Commissioner recently spelled out his understanding of some of
the office's vital tasks. 9 He noted, for example, that his Office worked with over forty
States to strengthen judicial independence; train judges, lawyers, and police; facilitate
the free and active engagement of organizations of civil society in public affairs; and
assist States in the implementation of human rights norms. When referring to
Mghanistan, the High Commissioner stressed the need for building a strong post-
conflict human rights culture in the field of women's rights, human rights education,
and transitional justice.
5. The International Criminal Tribunals and International Criminal Court
Over the past ten years, three international tribunals have enriched the array of
international institutions designed to protect in one or another way international
human rights. The International Criminal Tribunals for the Former Yugoslavia and
for Rwanda cover regional conflicts but have exerted a GOnsiderable influence on the
human rights movement as a whole. The International Criminal Court, the first of its
kind in its permanent character and universal reach, will soon become operational
(Steiner and Alston, 2000, pp 1146-55, 1176-77, and 1192-95).
9 Address by Sergio Vieira de Mello to the Third Committee of the UN General Assembly, 4 November 2002.
770 HENRY J STEINER
These tribunals apply the international-law norms set forth in their governing
statutes-crimes against humanity, genocide, and war crimes-to impose a criminal
liability on individual violators. The conduct covered by those norms involves both
international humanitarian law and international human rights; the once-clear
boundaries between the two are today often difficult to mark.
Criminal tribunals (complementing State courts where criminal trials may be con-
ducted under principles of universal jurisdiction) may represent for most observers
the closest approximation among international institutions of State institutions
charged with the protection of rights, particularly within liberal democracies where
the imagination oflaw, the rule oflaw, and related ~otions of protection are strikingly
court-centric. Such goals of criminal punishment as retribution and deterrence
would first appear to be similar for ordinary crimes within States and the massive
crimes tried by the international tribunals. But the situations leading to international
criminal prosecutions are often strikingly different from the commission of ordinary
crimes within States, and hence the creation of a criminal court holds a more qualified
promise for serving a goal like deterrence. In any event, experience with the tribunals
has been too short to permit informed answers to such questions.
One central concern informs the question of prosecutions. The task after violence
has ended may be primarily to rebuild, to lay the foundations for a society more
respectful of basic human rights values that extend from control of violence to insti-
tutionalization of political participation, and to achieve some degree of reconciliation
that will permit the society to move forward. In such circum~tances, prosecutions may
be understood not as an automatic policy, but rather as one among several plausible
responses or strategies. The choices would include truth commissions, lustration,
selective or general amnesties that may rest on a popular vote and may involve some
quid pro quo on the part of those gaining amnesty, or some combination thereof.
The varied and constraining conditions of States experiencing deep political
change like Chile or South Africa highlight the difficulty of deciding how to deal with
violations committed during a recent period of violence and repression. They suggest
how contextual these decisions must be. From the perspective of protection, par-
ticularly if we expand that notion to include attention to potential future victims
from later outbreaks of violence, it is far from certain that the typical national practice
of prosecution for ordinary crime always presents the appropriate path. These are
decisions with long-run consequences affecting a long-run process of change.
c.INTERACTION AMONG INSTITUTIONS AND SYSTEMS IN
EXERTING PRESSURE ON DELINQUENT STATES
The universal system of protection has been no more static than the corpus of human
rights norms. Each has experienced dynamic change over this half century, whether
through additional treaties and institutions or through internal expansion of an
institution's powers and functions by the interpretation and elaboration of authorita-
tive texts. One way of illustrating.the complex interactive network of IGOs and NGOs
INTERNATIONAL PROTECTION OF HUMAN RIGHTS
is to sketch possible routes toward putting pressures for compliance on delinquent
States. A schematic illustration follows.
(i) Suppose that State X, a party to the basic treaties, severely represses an ethnic
minority or political opposition. If independent human rights NGOs can
function within the political environment of X, they and other groups of X's
civil society may well be the first line of organized protest by lobbying,
monitoring and issuing reports about the internal situation. International
NGOs (INGOs), generally based in the liberal democratic States, may direct
their attention to X, independently or in cooperation with the local NGOs.
The reports of NGOs' investigative missions will be directed to the media,
governments of other States, and universal as well as regional IGOs. They
may be accompanied by lobbying by INGOs or local NGOs of executive
officials or legislatures in other States that may have influence over X's pol-
icies through their financial, trade, and political relationships. NGOs may
seek to persuade other States to initiate political processes against X in any
international organization in which they participate or in which their voice
will be heard, such as the UN Commission or international financial institu-
tions involved in X's economy. Those States mayor may not respond to such
requests. Geographical proximity may be significant with respect to possible
refugee flows.
(ii) At the same time, INGOs or local NGOs could attempt to involve the inter-
governmental organizations. Such organizations may have access to the UN
Commission permitting them to participate in the 1235 procedure. If State X
was about to submit a periodic State report to the Human Rights Committee,
NGOs could prepare an alternative report presenting the situation in X from
their own critical perspectives. If X were a party to the Optional Protocol, any
of its aggrieved citizens could file a communication to initiate a proceeding
against it.
(iii) State members of the UN Commission could attempt to initiate a course of
action against X under or independently of the 1235 procedure, most likely
seeking a condemnatory resolution, and possibly the appointment as well of a
country-specific rapporteur to report on X. They may request involvement of
the Office of the Secretary-General or of the High Commissioner of Human
Rights.
(iv) Rapporteurs, special representatives, and working groups appointed by the
Commission or office of the Secretary-General may give heightened attention
to the situation in X by making investigative trips and issuing reports that will
be given wide distribution.
(v) The scheme is hardly complete. Other institutions such as the World Bank or
International Monetary Fund may become involved out of their own interests
and financial involvement in X.
 772 HENRY J STEINER
This schematic presentation says nothing about the effectiveness of pursuing such
strategies. At a minimum, the universal system will generate much knowledge about
what is happening in X. But efforts to organize substantial international pressure
against X might fail for any of the previously indicated range of reasons.
It should be noted that the three regional systems play an important role in exerting
pressure for compliance on States. The regional and universal systems are involved in
each other's activities and linked in many ways. In the schematic description above,
individuals would probably have invoked the processes of regional human rights
institutions if X were located in Africa, the Americas, or Europe. Arrangements
become necessary to work out questions of priority among systems, and the effect of a
decision made by an IGO in one system upon an advocate's efforts to invoke another.
Indeed, the more cohesive and authoritative European Convention on Human
lO
Rights may effectively displace the universal system for many disputes generated
within its member States. Although most of those States will be parties to the ICCPR
and other human rights treaties, and often parties to the ICCPR Optional Protocol as
well, individuals challenging their States' conduct often prefer to bring disputes before
the European Court of Human Rights created by the European Convention, after
exhausting national remedies. The European Convention is apt to be better known
and its processes for relief for an aggrieved individual better understood than the
universal system. The European Court's decisions are binding on the parties to a
dispute, and in the large majority of cases, compliance by States with adverse judg-
ments-damages, release of a prisoner, repeal or revision of a law or policy found to
violate the Convention-has been reasonably prompt.
Through its investigative missions to the member States and related reports, the
Inter-American Commission on Human Rights brings publicity to violations and
exerts pressure on the violator. Its complaints procedure for individuals challenging
their own State's conduct may lead to recommendations adverse to the State, though
the recor~ of compliance is not impressive. The Inter-American Court of Human
Rights slowly builds its case law, enjoys a growing sense of its legitimacy among
member States, and becomes a more familiar resource throughout the region
for victims of violations (Harris, 1998; Harris and Livingstone, 1998). The younger
African system gradually expands its reach and influence (Odinkalu, 1998).
III. CHARACTERISTICS OF INTERNATIONAL
HUMAN RIGHTS RELEVANT TO THE
NATURE OF PROTECTION
We have seen that the human rights movement has generated a diverse armoury of
pressures against delinquent States that other States, IGOs, and NGOs can apply.
This section develops five inter-related characteristics of human rights that together
10 Adopted 1950, entered into force 1953. See generally van Dijk and van Hoof, i998.
INTERNATIONAL PROTECTION OF HUMAN RIGHTS 773
suggest why such international protection is weak in comparison with the ordinary
sanctions of national legal-political systems or several other international law regimes,
and frequently has so hortatory, dialogic, and recommendatory a nature.
The question posed is whether these characteristics demonstrate the need for an
expanded conception of protection of human rights through the universal human
rights system. Such a conception would emphasize pressures against a State to
arrest violations, but together with assistance for reform efforts. It looks beyond
current violations toward ways of forestalling their recurrence in later years, and thus
includes ways of fostering change in the background circumstances and cultural
understandings that often underlie violations. The task of protection would then
require more time. It would necessarily incorporate strategies traditionally associated
with fostering the processes of social and cultural transformation.
The following analysis of characteristics of human rights and of efforts to advance
their recognition and protection is not meant to express pessimism or skepticism
about the movement's ideals or possibilities. It simply describes the human rights
movement as it is, no matter what the correspondence between that description and
the authoritative texts or conventionally expressed views about human rights. A real-
istic portrayal should also point towards the more fruitful paths for international
protection to follow to achieve a greater realization of human rights ideals.
A. HUMAN RIGHTS VIOLATIONS GENERALLY OCCUR WITHIN
AND AFFECT ONLY PEOPLE WITHIN A SINGLE STATE
Conduct amounting to a violation of international law frequently takes place outside
the territory of the delinquent State. But the operative events may also occur entirely
within that territory: arrest of an ambassador, abusive treatment of an alien, or the
refusal to honour a treaty commitment permitting an alien to do business. Nonethe-
less each illustration implicates other States and international order: the ambassador
was entitled to an immunity from arrest, the maltreatment of the alien violated the
law of State responsibility, or a treaty with the alien's State of nationality was broken.
Each is as (international' in its effects as the familiar violations of international law
through extraterritorial conduct.
Human rights law differs. In the treaty and customary law of the last half century,
no trace of a foreign element is essential to the conclusion that a State has violated
its international obligations regarding individual rights. In all but a few respects,
treaties and customary law abolish the citizen-alien distinction that long decided
whether State abuse amounted to an international wrong. Citizens have rights
under international law with respect to their States' violations that have only internal
effects.
For many kinds of violations-police brutality, press censorship, bribed judges-
only the population of the delinquent State is likely to feel the effects. Other States
are unlikely to protest, let alone take weightier measures to end the violations, even
though the violator may have broken its obligations erga omnes, vis-a.-vis all other
774 HENRY J STEINER
States or at least those within a given treaty regime. 11 The other States lack any
narrowly conceived interest to act. The classical self-help remedies or counter-
measures provided by treaty or customary law for injuries to a State caused by the
breach by a delinquent State of a reciprocal obligation-perhaps suspending obliga-
tions to the delinquent State that are proportionate to the broken promises in a tax
or trade treaty-lose meaning.
These observations about differences between human rights and many other fields
of international law have their exceptions, some of growing currency. Human rights
treaties are multilateral; many create treaty organs. The treaties may empower other
State parties to bring actions against State X for violations of treaty norms that affect
only its own citizens. Within the European human rights system, States have several
times brought actions before the European Court to protest another member State's
internal conduct, such as Greece's repression of political life during the reign of its
colonels (Ste~er and Alston, 2000, pp 804-807). Moreover, as previously noted, other
States may be adversely affected by a delinquent State's internal repression or brutality
because of consequences like refugee flows or political support of the oppressed group
in X by groups of the same ethnicity in other States.
The general reluctance of other States to become directly involved in responding to
violations elsewhere as serious as gender discrimination, press censorship, or corrupt
political trials underscores the necessity for a system of international organizations.
Else victims would be close to where they were when the human rights movement
began, with little choice other than continuing an internal struggle for change without
benefit of meaningful international support.
B. HUMAN RIGHTS VIOLATIONS OFTEN HAVE A SYSTEMIC
CHARACTER AND REFLECT DEEP ASPECTS OF A STATE'S
POLITICAL STRUCTURE
Although human rights treaties do not require that State action must have a systemic
character before it can constitute a violation, in practice other States and international
organs are likely to take notice only when such is the case. The requirements of
the 1235 and 1503 procedures of the UN Commission, mentioned above, so
suggest. Actions brought against a State before an international body like the Human
Rights Committee or the European Court of Human Rights will in fact allege an
individual injury. But the violation and injury are rarely idiosyncratic, disconnected
from a larger political system or prevailing cultural practices. They tend to fall
within a practice or pattern-perhaps widespread torture or abuse of prisoners,
electoral fraud, repression of religious worship, physical abuse of children, gender
discrimination, or disappearance of political dissenters.
Human rights norms may threaten a State's political structure and ideology. Often
11 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970,
p 3, paras 33-34.
INTERNATIONAL PROTECTION OF HUMAN RIGHTS 775
systemic violations appear essential to maintaining authoritarian rule. To the extent
successful, pressure by other States or international organs to terminate the violations
may therefore have deep and widespread structural effects within the delinquent
State, far more so than would international responses to a State's violation of trade,
commercial, or environmental treaties, or rules of the law of the sea. Such an external
threat in the name of human rights to basic internal structures of course heightens the
long-standing claim that human rights interference violates State sovereignty.
South Africa provides a powerful illustration. The enfranchisement of the non-
white population within the principle of equal protection brought about a landmark
shift in political power, and hence the promise or potential of redistribution of
economic and other forms of power. More commonplace illustrations of systemic
violations whose termination would shake the viability of a particular political system
and increase the chances for socio-economic change could include widespread torture
('the price of dissent', in the words of Amnesty International), denial of the right to
associate, and suppression of an independent press.
Within the liberal democracies, violations are less likely to reach to the foundations
of a social, economic, or political system. The cases brought before the European
Court of Human Rights that involve individual complaints against one of the many
stable democracies in this region address issues of undeniable legal and moral sig-
nificance that have important statewide effects-aspects of religious freedom or
free speech, criminal procedure, or discrimination on grounds of gender or sexual
orientation. Nonetheless, these are violations that, once resolved, are not likely to
transform the basic character of the country. Political, social, and cultural life may
experience a lengthy period of adjustment, and many lives will be profoundly
changed. But basic structures of government and power will adapt rather than
collapse or be displaced. However, even within the European regime, recent entrants
like Turkey or some East European States become parties to disputes that may affect
the core of the political system-for example, the banning in Turkey of a number of
political parties. 12
It follows that a decision by an IGO to react to serious and systemic violations by an
authoritarian State may raise complex questions of strategy and of the relevant time
frame. The task is to solve the problem not only for today but for other days as well.
Perhaps there must be an uprooting, a reinterpretation or transformation or abolition
of the social and political structures underlying the violations. Such a notion of
ongoing involvement amounting to an enlarged notion of protection that seeks to
lower the risk of ongoing violations puts extra burdens on any international mechan-
ism. It also suggests that carving the paths toward effective long-run change requires a
sophisticated understanding of many aspects of the State involved. Contrast a once-
and-forever order by an international organ settling a trade, tax, or environmental
treaty dispute.
12 See eg the decision of the European Court of Human Rights in United Communist Party of Turkey v
Turkey (1998) 26 EHRR 121.
 HENRY J STEINER
C. THE REACH OF HUMAN RIGHTS DUTIES WITHIN STATES:
NON-STATE (PRIVATE) ACTORS
International law, classically defined as the law among States, breaks dramatically
with this tradition in its human rights instruments. The regulated relationships are
principally between the duty-bearing State and rights-bearing non-State actors-that
is, individual or institutional actors that are neither part of government, nor so closely
associated with the State as to have their actions attributed to it. With few exceptions,
States alone are charged with duties imposed by international law, principally the duty
to respect the declared rights. Failure to fulfill these duties constitutes a violation of
international law.
Like many liberal constitutions, the treaties rest on the assumption that the State
constitutes the primary threat to individual rights, as well as the prime instrument
for their realization. Hence the stress on the duty to respect individual rights by
not interfering or acting inconsistently with them. But of course non-State actors
(sometimes referred to as 'private' actors, in distinction from the 'public' realm of
government) themselves fail to respect others' rights. The rapist or the abusing
spouse violates the right to physical security; the discriminatory employer violates
equal protection norms; partisans of the dominant 'political party curb the right to
political participation by threatening harm to those supporting the opposition. A few
rights, such as guarantees of a fair judicial process, are by definition open to violation
only by the State.
To say solely as a matter of description that non-State actors violate rights is not
necessarily to say that, like States, these actors are subjects of international law which
imposes duties directly on them. (Of course, such conduct may subject ·the non-State
actor to tort or criminal liability under State law.) It is true that international law does
subject non-State as well as State-related violators to criminal liability-with respect,
for example, to war crimes, crimes against humanity and genocide. But the number of
such international crimes is limited, and the human rights treaties do not make non-
State violators in general subjects of international law and liable civilly or criminally
under it for violation of international norms.
Nonetheless, non-State actors are indirectly regulated by international law. The
State's obligations under most treaties reach beyond the duty to refrain from inter-
fering with (to respect) the declared rights. They also include 'protecting' or
'ensuring' rights-holders from interference by non-State actors. 13 Much of the signifi-
cance of the State/non-State (public-private) distinction with respect to the reach of
international law in general thereby collapses with respect to human rights. The State
is obligated to afford reasonable protection to rights-bearing individuals, and thus to
act diligently to prevent violations by non-State actors like the rapist, discriminatory
employer, or political partisan described above. It is the State that will be charged with
13 See eg Article 2 of the ICCPR, Article 2 of CEDAW, and Article 1 of the American Convention on
Human Rights, entered into force 1978, OASTS 36.
INTERNATIONAL PROTECTION OF HUMAN RIGHTS 777
a violation of its treaty obligations if it fails to take appropriate measures to protect-
through police, due investigation, prosecutions, civil remedies, new legislation, and
so on. 14
Some treaties make specific this duty to regulate non-State actors in·the interest
of protecting defined rights. Article 11 of CEDAW, for example, requires a State to
assure gender equality in the field of employment. Articles 2(e), 2(f) and 11 obligate
the State to take 'appropriate measures' to eliminate discrimination against women
by 'any person, organization or enterprise', and to modify or abolish laws, customs, or
practices constituting such discrimination.
In order to fulfill this duty, the State must develop a complex web of government
policy and legislation, including proactive measures, that will be extremely context-
sensitive. Considerable discretion will be allowed the State in deciding on strategies
and working out the 'appropriate measures'. Consider, for example, the requirement
in CEDAW that parties eliminate discrimination in employment. Should the State
criminalize discrimination by corporate officials in hiring or advancement? Would it
be preferable to provide only for civil suits for injunctions and damages? Or mandate
a policy of affirmative action? Or appoint women to high public office as an example?
Or establish a supervisory agency to which corporations submit periodic reports and
enter into public discussion about their employment practices? Or provide funds for
discussion groups between employers and female employees? .
Such discretion of State officials to determine which measures are 'appropriate'-
perhaps most suited to overcoming entrenched forms of resistance, perhaps most
speedy or efficient with respect to transforming certain cultural assumptions and
older practices~has implications for the kind of international protection that best
suits the needs of the human rights movement. It suggests that the measures must be
decided, and the political battles fought, at local levels. Surely one useful function
of IGOs and NGOs would be to engage in discussion with the State about those
measures and to apply appropriate pressures to the State to assure that reasonable
steps are being taken toward the goal of gender-blind hiring and promotion. Again
ongoing dialogue with the delinquent State forms an integral part of the process of
protection.
D. THE PROGRESSIVE REALIZATION OF CIVIL AND
POLITICAL RIGHTS
Most treaties express at their creation a convergence of interests of States parties, or a
compromise shaped by the distribution of power and influence among the parties.
The rules stated in a multilateral treaty are not exactly those that anyone party
would have initially proposed. The treaty regimes intend those rules to regulate
State behaviour from the moment of ratification-diplomatic immunities, treaties on
14 See the reasoning of the Inter-American Court of Human Rights in the Velasqueth-Rodriguez case, Ser
C, No 4 (1988).
 HENRY J STEINER
intellectual property, commercial or environmental treaties, the law of the sea.
Transitional periods in which a party's duty is met through progressive steps to
achieve compliance will be set forth explicitly in the treaty.
Again human rights treaties differ. Far from representing compromises of points of
view between, say, liberal democratic and authoritarian polities, far from accepting
the interests or practices of most or all major States as decisive, these treaties declare
ideals of State conduct that no State can fully match, and that tower above most
States' conduct. In the light of their mandatory character as solemn commitments
of their parties, the treaties represent at their core, in the words of the Universal
Declaration, a 'common standard of achievement' toward which States are obligated
to move. The descriptions in this section about four other related characteristics of
the human rights movement underscore this idea of progressive realization.
The size of the gap between treaty norms and State behaviour clearly varies among
States. It is at its narrowest for the developed liberal democracies whose rights
tradition so influenced the international norms, and at its broadest in many develop-
ing countries where socio-economic conditions and political structures together with
their cultural underpinnings differ most sharply from those democracies. In such
circumstances, there can be little hope in many States that norms like freedom of
association or an independent judiciary will be immediately realized. 15 Rather, these
and related norms may long remain goals toward which good-faith governments
will work.
In many instances the common expectation must be that a State joining a human
rights treaty will instantly be in violation of some major obligations. If China were to
ratify the ICCPR tomorrow without reservations, a long internal struggle would
doubtless precede implementation of rights to speech and association, not to mention
the right to vote at periodic and genuine elections 'guaranteeing the free expression
of the will of the electors'. Nonetheless other States, IGOs and NGOs would applaud
the move as a vital first step that might lead over time to broad compliance.
As the Committee on Economic, Social and Cultural Rights has made clear about
State obligations under that Covenant, the notion of progressive realization in no
sense invalidates or compromises the idea of State obligation. The obligation is to take
steps, one could say as large and frequent steps as are plausible, toward the goal.
As that Committee has put it, the steps forming part of progressive realization 'must
be taken within a reasonably short time' after ratification. They must be 'deliberate,
concrete and targeted' toward meeting the State's obligations. 16 (Nonetheless, it
should be noted that a standard of progressive realization may burden the process of
monitoring and reporting on a State, and assessing its progress in observing rights. It
is far more complex for the observer to determine if the appropriate steps are being
15 For an analysis of the obstacles to realization of judicial independence in East European States seeking
to join the European Union, see the report on Judicial Independence in the EU Access Process at
www.eurmap.orglreports.
16 Committee on Economic, Social and Cultural Rights, General Comment No 3 (1990), UN Doc E/19911
23, Annex III, para 2.
INTERNATIONAL PROTECTION OF HUMAN RIGHTS 779
taken than it is to determine, say, whether or not people vote, or whether women have
choice of career.)
These observations refer to the reality of progressive realization and the strategic
necessity to think in such terms in order to bring violations of some basic civil and
political rights to an end, particularly in authoritarian States. In no sense do they
qualify the necessity of action as prompt and effectiv~ as possible to arrest massive and
systematic violations of, for example, the right to life like massacres, genocidal attacks,
or abusive discrimination. The urgent first step must be to stop the killing, as the
Security Council has apparently concluded in some of its decisions under Chapter
VII. The second and later steps aim at preventing its recurrence.
But most of the civil-political rights treaties make no allowance on their face for
gradual implementation that might extend over a long period. The command is
unambiguous: comply now with your duty to respect, and to' protect or ensure, unlike
the famous provision in Article 2 of the ICESCR requiring States to take steps 'with
a view to achieving progressively the full realization' of the rights stated in that
Covenant. I7 The ICCPR, for example, does not provide that States incapable of rapid
compliance are permitted to work for a decade toward the· goal of an independent
judiciary, perhaps through such diverse strategies as reform of legal education and
training for judges, or that racial segregation is to be undone with, say, 'all deliberate
speed'.
But common sense as well as the practice of IGOs and NGOs suggest the
inevitability of that kind of process for many basic rights. The direction in which State
X is moving noticeably influences IGOs and NGOs in the tone and content of their
reports and resolutions on X'. If the State extends the suffrage to women and provides
for its first popularly elected government body, reaction will be favourable and
encouraging, and criticism will be relatively muted, despite continuing discrimination
in other sectors and the long path that X must travel before complying with require-
ments about elections. Evaluation and criticism will depend greatly on the pace and
significance of the steps that X must continue to take. (South Africa did manage to
make this transition all at once, by extending an existing limited participatory regime
to all as part of a process of fundamental transformation.)
Such awareness of the complex and possibly time-consuming processes of change
informs the ICCPR's requirement in Article 40( 1) that a State's periodic reports to the
Human Rights Committee about its protection of rights include information about
'the progress made in enjoyment of those rights'. In realistic terms, what is often
sought is precisely this progress over time. Many comments of the Committee that are
set forth in its concluding observations expressly compliment States for progress thus
far made (even though the goal may be far from reached) and recommend feasible
17 There are indications in a few such treaties of longer-run achievement of goals, such as ICCPR
Article 2(3)(b) that requires States to 'develop the possibilities of judicial remedy'. CEDAW represents
the most important exception to this characteristic .of civil-political rights treaties, for States 'agree to pursue
by all appropriate means and without delay, a policy of eliminating discrimination .. .' Other provisions of
CEDAW like Article 5 refer to aspects of cultural change over time.
 HENRY J STEINER
further steps.18 The process between the Committee and the reporting State stresses
dialogue rather than injunction. Criticism should intensify when progress slackens or
stops, and become most insistent and potent when backsliding occurs.
E. THE STATE'S DUTY TO PROMOTE AND TRANSFORM:
CULTURAL OBSTACLES
As human rights treaties were negotiated at different times over several decades, they
expressed changes in substance and strategy. To some extent, those changes were
related to the ever-greater specificity of the subject matter-from a broad initial
declaration covering much of the field, to the two covenants giving far more detail,
and ultimately to the proliferation of treaties and declarations on topics like race,
gender, children, torture, and religion. But they likely stem as well from a deeper
awareness of the obstacles to realization of the human rights norms.
The overtly political obstacles to change were evident enough from the start.
Authoritarian regimes-military rule, monarchy, 'strong man' charismatic leadership,
theocracy, communist or nationalist ruling parties-could accept norms like free
speech, free association, or physical security of the person only at great risk to their
survival. The new movement confronted political ideologies hostile to the notion of
rights against government.
What may have been less evident at the time of the human rights movement's birth
were cultural obstacles of a deeper, more diffuse and tenacious character-those
aspects of culture that draw on religious belief, political ideology, cosmology,
traditional practice and ritual, myth, and symbolic representation. Consider, for
example, the structure of the ICCPR, drafted in the first decades of the human rights
movement and innocent of any explicit notion of or response to obstacles to change.
Article 2 sets forth the obligations of States to 'respect and ensure' to all individuals
within their territory the recognized rights, and to take 'necessary steps' to adopt
legislative or other measures to give effect to those rights. States also undertake to
'ensure ... an effective remedy' to persons whose rights are violated that will allow
those rights to be determined 'by competent judicial, administrative or legislative
authorities ... and to develop the possibilities of judicial remedy'. Finally, States
promise to ensure that any granted remedies are enforced.
The image is that of the rule of law within a liberal democracy; the assumption is
that legal processes and institutions exist or will become available to vindicate claims
of right. The Covenant has nothing to say about how to get 'from here to there',
how to achieve in government and civil society the recognition and observance of
deep human rights norms that stand in sharp contradiction to existing practices.
Surely there is no recognition in the treaty of cultural relativism or diversity. The
individual endowed with rights is indeed universal, shorn of all attributes that speak
to a particular tradition or culture.
18 For illustrations, see Steiner and Alston, 2000, pp 715-727.
INTERNATIONAL PROTECTION OF HUMAN RIGHTS
Some later conventions evidence an awareness of the need to transform assump-
tions and practices that are rooted in a given culture in order to realize human rights
goals. Within this evolving framework of thought about human rights, police and
courts and other familiar State institutions can best be understood as essential but
insufficient instruments for achieving compliance with the treaties.
CEDAW is most striking. States undertake to ensure the 'full development and
advancement of women' (Article 3), and must take 'appropriate measures' to modify
'social and cultural patterns of conduct' to achieve elimination of prejudices and of
practices based on the idea of the inferiority of either sex or on stereotyped roles of
either sex (Article S(a)). To achieve such goals, States must encourage appropriate
education, revise textbooks and school programmes, and introduce new teaching
methods (Article 1O(c)). Article 7 of CERD has a similar agenda; States must adopt
'immediate and effective measures, particularly in the fields of teaching, education,
culture and information', to combat prejudice and promote understanding and
tolerance. The Children's Convention suggests the need for similar strategies of
re-education to introduce new cultural understandings, as in the requirement of
Article 12(1) that states 'assure to the child who is capable of forming his or her own
views, the right to express those views freely in all matters affecting the child, the views
of the child being given due weight in accordance with the age and maturity of the
child'.
These and similar provisions in other human rights instruments have created what
may now be described as a necessary function, if not quite a general duty, of States
that are obligated to try in good faith to observe human rights norms. That function
is to promote new understandings with respect to State-citizen relationships as well as
to interactions among non-State actors in contexts ranging from the family or market
to institutions of civil society.19 These understandings may reach into the most sig-
nificant and intimate aspects of public and personal lives. When promotion includes,
as it must, efforts to change aspects of a culture that embraces the rulers and the ruled;
the human rights movement has further eroded the earlier-described distinction
between State and non-State actors (public and private) in defining its reach into
States. If the State's duty to respect rights were at the forefront in the early years of the
movement, the related tasks of protection and promotion have become ever more
prominent, both tasks pointing toward the necessity of a proactive State attentive to
. cultural obstacles to the realization of human rights.
This instrumental perspective on culture-that it must sometimes be developed or
transformed in one or another respect to advance human rights, that States and civil
society must devise appropriate strategies for this task-should be understood as
distinct from a different perspective on culture that has long inhabited human rights
scholarship and discourse. The universal aspirations of human rights have from the
19 Compare Article 7(2) of the South African Constitution (1996): 'The state must respect, protect,
promote and fulfil the rights in the Bill of Rights'. For a description and comparison of different types of
duties, see Steiner and Alston, 2000, pp 180-186.
 HENRY J STEINER
start stood in tension with the claims of cultural relativism. The question at issue in
that debate has been the legitimacy of the asserted universal norm, in relation to
different and often contradictory norms rooted in a particular cultural tradition. The
principal fields in which the battles have been waged address the related issues of
family, personal law, gender, sexuality, and children, all as informed by religious belief
or traditional practice. But the debate has extended to other fields, such as aspects of
the criminal law and punishment. It raises such fundamental questions as the com-
peting claims of individualism or community as a mode of social organization, or the
use of the language of rights as opposed to duties as the appropriate structure for de-
termining relationships between the State and its citizens or among non-State actors. 20
This chapter has not explored such issues. Rather, it has assumed that the human
rights norms here used as illustrations of arguments have a strong foundation as
universal rights, or at least command growing support throughout the world as the
human rights movement has developed. The claims of cultural relativism are then
bypassed, rather than debated and agreed with or dismissed. The concern with culture
stems from the chapter's primary purpose of exploring the notions of protection and
promotion in relation to certain characteristics of the human rights movement.
Hence the argument stresses the instrumental perspective on the role of culture in
blocking or advancing human rights ideals. Two illustrations of that role follow.
Gender issues have figured importantly in the human rights movement over the
last two decades. They range from straight-out matters of discrimination in employ-
ment or qualifications for political office to problems stemming from customary-law
distinctions between men and women with respect to inheritance or the issue of
female genital mutilation/circumcision (FGM). It is possible for a State to employ the
criminal or civil law to end employment discrimination, or to invalidate all customary
norms that discriminate with respect to gender. But as CEDAW makes clear, the more
effective and pervasive challenge to gender discrimination is likely to occur less
because of one or another form of State coercion to end a given practice (as important
as that might be) than through a transformation in popular attitudes about the
relevance of gender.
Surely education will play a role, as stereotypical gender roles are challenged
through textbooks and academic instruction, and through different patterns of par-
ticipation in the classroom and school. Government can influence prevailing views
by, for example, appointing women to high political or other office, or instituting
programmes such as childcare that enable women to work in the public sector.
Institutions of civil society can provide their own examples of absorbing women into
all levels of their activities. Women's groups may urge and contribute to all such steps.
The routes are many, and the task is best spread among many groups to achieve both
top-down and bottom-up pressures and ideas for change. Indeed, the combination of
and dialogue between grassroots (bottom-up) and elite (top-down) movements will
often enjoy a particular potency.
20 See generally Steiner and Alston, 2000, chs 5 and 6.
------
INTERNATIONAL PROTECTION OF HUMAN RIGHTS
With respect to customary practices such as fgm, internal dialogue within the
community between proponents and opponents of the practice may open a path to
change more likely to succeed than a State's effort to prosecute those authorizing
or performing the ritual surgery. Other strategies could include educating women
about the adverse health consequences of the practice and related pain, substituting
other rituals to symbolize the entrance into adulthood, or postponing the practice
until an age where free consent can plausibly be given. Intelligent choices among
these and other strategies require a sensitivity to the cultural environment, and the
strong engagement in these processes of change of the women most affected by
the practice.
The second illustration concerns political participation. The Universal Declaration
tells us that 'the will of the people shall be the basis of the authority of government'.
while the ICCPR proclaims the right of all citizens to vote 'at genuine periodic
elections which shall be by universal and equal suffrage and shall be held by secret
ballot, guaranteeing the free expression of the will of the electors'. These rare state-
ments in human rights treaties of a theory of political legitimacy fall clearly within the
liberal tradition. How then should the human rights movement react to the fact that
equal political participation is alien to authoritarian cultures, and that authoritarian
governments will inevitably see in the free vote their own destruction?
The question of how to introduce the idea of a right to political participation and
to institute democratic government has become of increasing salience in a world
caught up in the rhetoric of democratization. The planning for nation-building
after the recent war in Mghanistan, current debate about war in Iraq and its con-
sequences, and discussion about the evolution of post-independence East Timor
all give a central place to the difficulties and duration of these culture-influenced
processes of political transformation.
Inevitably the process will be slow, even if a vote is instituted at the first moment
of transition from authoritarianism to another kind of regime. Complementary
institutions and processes must ultimately be put in place, and for the while, a healthy
experimentalism including grassroots innovations may heighten chances for success
far more than would an imposed blueprint from a stable democracy. A reformed
education system will playa role both in explaining and justifying the human rights
norms within the framework of the relevant culture. New methods and processes of
the classroom could stress basic notions of students' participation, voice, and inquiry
that would challenge a culture of authoritarianism. As with FGM, the goal will not be
reached overnight.
But the goal may not take decades either. The outside observer can readily overstate
the uniformity and tenacity of popular attitudes and cultural beliefs, whereas the
relevant culture may have long experienced a process of erosion and reconstruction.
That process publicly calls into question the asserted stability and depth of the
culture, which may in fact be far more fragmented, fragile, and fluid than imagined.
These days it may be sharply influenced by globalization, by the transnational flow of
information and images, and by urbanization and large migrations. The criticisms
---------
 HENRY J STEINER
and proposals ste~ing from the human rights movement may then enjoy a more
hospitable reception among the population than imagined.
Of course not all these paths toward longer-run change can be taken by human
rights institutions. Pressure to take steps and assistance (as from the Office of the
High Commissioner) in taking those steps must come from the IGOs and NGOs. But
many other political, professional, and academic groups will participate, as the issue
becomes domesticated in the target State and the political battles for change are
fought internally at grassroots and elite levels.
IV. CONCLUSION: PERSPECTIVES AND VOICES
The claim that civil and political rights are often progressively realized, indeed often
expected by IGOs and NGOs to be progressively realized, rests on several related
observations: the gap between international-law ideal norms and States' traditions or
practices; the degree to which human rights violations in many States grow out of
deep political and cultural assumptions; the pervasive effect of terminating violations
on political and social structures of a State, and thus on the internal distribution
of power. Indeed, even the established, stable democracies must confront violations
that are so deeply rooted that immediate termination of violations of rights by the
State and non-State actors sets an impossible goal-in the United States, for example,
racial segregation, or domestic violence against women or children.
Perhaps it is inaccurate to describe the chapter's observations as contradicting the
broadly accepted understandings. Perhaps these different descriptions of civil and
political rights are comprehensible, indeed potentially complementary and helpful.
Perhaps it is a matter of voice: who is speaking, out of what role or perspective?
Consider the victims who demand full and immediate protection against their
victimizers. Assume that the violations are widespread, perhaps imbedded in under-
standings of religious texts or traditional practices, perhaps a consequence of a
long-reigning culture of political authoritarianism. The claims of victims are not apt
to be qualified by their attention to the difficulties of achieving change. They are not
apt to invoke the notion of progressive realization of rights, and insist only that the
State now take the first of many steps over many years.
Few victims' of torture, even recognizing the long road toward termination of the
practice that may involve re-education of police or training oflawyers and judges, will
limit their demands. To the contrary, victims inevitably want the offensive practice to
stop once and for all, and now. Gay people will demand immediate protection of
privacy rights and equal-protection rights without reference to the cultural obstacles
and the ongoing 'culture war'. The voice of the victim will be urgent, insistent on
release from oppression and humiliation-and so it should be. Such expressions of
moral and political outrage and of pain not only speak to inner feelings, but also put
maximum pressure on those who can start the steps toward compliance.
INTERNATIONAL PROTECTION OF HUMAN RIGHTS
IGOs and NGOs may speak in a different voice. They occupy a more ambivalent
position, distanced from the brutal experiences and personal losses of the victims, yet
charged with their protection. Frequently, though not invariably, IGO and NGOs'
criticism of States and recommendations through resolutions and reports may use the
rhetoric of immediacy, even while their officials are well aware of the obstacles to
immediate achievement of the goal. That rhetoric may frequently be accompanied by
dialogues with States about the next steps to be taken. But if the criticism of gross
violations is too muted and measured, allowing a substantial period for the govern-
ment to reform itself and to reduce violations by non-State actors, these human rights
organizations may lose influence, credibility and effectiveness. What may frequently
be needed is a battle cry, a demand for dramatic change, a vindication of what victims
have experienced, rather than a measured cost-benefit statement about the hows and
whens.
Nonetheless, in practice the idea of progressive realization comes into play.
Advances by a delinquent State in the protection of rights are strongly praised, even
though much remains to be done. The dialogue between the Human Rights Com-
mittee and States that have filed reports under ICCPR Article 40 often lead to the
Committee's recommendations of steps to be taken, of ways to approach the goal of,
say, religious freedom or a judicial system responsive to the rule of law. Moreover,
IGOs and NGOs give assistance to States in planning strategies of change that inher-
ently rest on the premiss of progressive realization. Their tasks are various: sources of
pressure, providers of assistance, partners in change.
Finally, we can talk of the observers, analysts, a:n:d planners in academic life, State
governments, or IGOs-people who are working to realize human rights goals. The
distance between events on the ground and such people is greater, for they are neither
victims nor engaged in active advocacy. Their intention may be to assess what has
been achieved and what has failed in the human rights movement, to probe basic
assumptions, to examine the problematic aspects or contradictions of the human
rights movement, and to explore the obstacles to the kinds of cultural change that
alone may succeed in curbing violations over the long run. To achieve their purposes,
these actors must strive to see the situation as it is, the problems as they are, and the
range of choices that exist among practical strategies toward change.
All these voices-:-those in pain who cry out for immediate relief and change, the
advocates applying what pressures are available against the delinquent State, the
observer and analyst engaging in realistic description-may work at cross-purposes.
This cacophony within the movement may limit its effectiveness; the diverse descrip-
tions and proposals may blunt its message. More likely, this pluralism of voices
committed to human rights ideals will strengthen the movement, by providing diverse
insights, internal debate and criticis~, and better-considered strategies for change.
From this perspective the different voices can be understood as complementary, in
the sense that they serve distinct but inter-related purposes in giving hope to victims,
animating people to resist oppression, placing all possible pressure on violators, and
working toward effective social and cultural change.
 HENRY J STEINER
REFERENCES
ALSTON, P (ed.) (2003a), The UN and
Human Rights, 2nd edn (Oxford: Oxford
University Press).
- - (2003b), 'The Commission on Human
Rights', ch 4 in Alston (ed.).
- - and CRAWFORD, J (eds) (2000), The
Future of UN Human Rights Treaty Moni-
toring (Cambridge: Cambridge University
Press).
BUERGENTHAL, T (2003), 'The Human
Rights Committee', ch 8 in Alston (ed.).
CLAPHAM, A (2003), 'The Secretary Gen-
eral', ch 13 in Alston (ed.).
HARRIS, D (1998), 'Regional Protection
of Human Rights: The Inter-American
Achievement', in Harris and Livingstone
(eds),p l.
- - and LIVINGSTONE, S (eds) (1998), The
Inter-American System of Human Rights
(Oxford: Clarendon Press).
MORAVCSIK, A (2000), 'The Origins of
FURTHER READING
The following readings offer diverse perspectives on human rights and international law:
ALSTON, P (ed.) (2003), The UN and Human
Rights, 2nd edn (Oxford: Oxford Uni-
versity Press). An excellent set of essays on
the principal human rights organs and
bodies related to the UN.
HENKIN, L (1995), International Law: Pol-
icies and Values (The Hague: Kluwer Aca-
demic Publishers). A lucid and perceptive
account incorporating human rights into
a larger framework of international law.
KOSKENNIEMI, M (1989), From Apology to
Utopia: The Structure of International
INTERNATIONAL PROTECTION OF HUMAN RIGHTS
Pa.: University of Pennsylvania Press). the International Protection of Human
A critique of human rights from the per- Rights (Ardsley, NY: Transnational Pub-
spective of the third world and cultural lishers). A critical account of the
International Human Rights Regimes: relativism. international protection of human rights
Democratic Delegation in Postwar WATSON, JS (1999), Theory and Reality in from a positivist perspective.
Europe' , 54 International Organization
217.
ODINKALU, C (1998), 'The Individual
Complaints Procedures of the African
Commission on Human and Peoples'
Rights: A Preliminary Assessment', 8
Transnat'l L & Contemp Probs 359.
STEINER, H (2000), 'Individual Claims
in a World of Massive Violations:
What Role for the Human Rights
Committee?', in Alston and Crawford
(eds), pIS.
- - and ALSTON, P (2000), International
Human Rights in Context: Law, Politics,
Morals (Oxford: Oxford University
Press).
VAN DIJK, P and VAN HOOF, G (1998),
Theory and Practice of the European
Convention on Human Rights, 3rd edn
(The Hague: Kluwer Law International).
Legal Argument (Helsinki: Finnish
Lawyers' Pub Co). A challenging analysis
of legal argument that opens useful
ways of thinking of international human
rights.
LAUTERPACHT, H (1950), International Law
and Human Rights (New York: FA
Praeger). The views of a leading jurist
about human rights at the time of birth of
the human rights movement.
MUTUA, M (2002), Human Rights: A Polit-
ical and Cultural Critique (Philadelphia,
 25
THE LAW OF
WAR (INTERNATIONAL
HUMANITARIAN LAW)
Christopher Greenwood

SUMMARY

While a previous chapter (Chapter 19) examined the rules of international law which
govern the legality of resort to force by States, this chapter considers the law which applies
once the decision to resort to force has been taken and fighting has started. It does not
attempt to summarize the many treaties and rules of customary law which comprise the
law of war. Instead, it concentrates on certain questions which lie at the heart of that law,
namely: when does the law of war apply? Who is entitled to take part in hostilities? What
is a legitimate target and how may it be attacked? What are the limitations on the weapons
with which States may conduct hostilities? What protection does the law afford the vic-
tims of hostilities? How much, if any, of this law applies in civil war? And how can the law
be enforced? Unfortunately, space does not permit treatment of the law of warfare at sea
or detailed treatment of the law of belligerent occupation, each of which would require a
chapter in their own right.

I. INTRODUCTION

If international law is in some ways at the vanishing point of law, the law of war is, perhaps
even more conspicuously, at the vanishing point of international law. I
Chapter 19 ( Gray) examined the rules of international law which govern the legality
of resort to force by States, this chapter considers the law which applies once the
decision to resort to force has been taken and fighting has started. For many people,

I Lauterpacht, 1952, p 382.

790 CHRISTOPHER GREENWOOD
the idea oflaws about how wars are to be fought is a contradiction in terms, particu-
larly now that international law prohibits recourse to force in most circumstances.
Critics of the ideas of a 'law of war' include both those who argue that war cannot be
regulated by law, because legal values will always be abandoned in the fight for sur-
vival, and those who maintain that it should not be so regulated, because to do so
makes the use of force less effective or renders the possibility of war more acceptable.
In fact, laws on the conduct of hostilities have existed in most cultures for hundreds, if
not thousands, of years-rules prohibiting the use of certain weapons or prescribing
the treatment of prisoners, for example, can be traced back to classical times-and
international law has contained a law of war from the start. Moreover, while it is
undoubtedly true that this law has regularly been flouted, there is also evidence that
many States do take it seriously and that, in consequence, it does have some effect in
improving the conditions of life for prisoners, civilians, th~ wounded, and other
victims of war.
The modern law of war (or, as it is frequently called today, the 'law of armed
conflicf or 'international humanitarian law') has been developed through a series of
treaties, the most important of which are the Hague Conventions of 1899 and their
successors of 1907, the four Geneva Conventions (dealing with wounded and sick
on land, wounded, sick and shipwrecked at sea, prisoners of war, and civilians) of
1949, and the two 1977 Additional Protocols to those Conventions. 2 The 1949 Con-
ventions are binding on almost every State in the world but a number of major
military powers, including the United States, are not parties to the 1977 First
Additional Protocol or other recent treaties, such as the 1998 Ottawa Convention
banning anti-personnel landrnines. Since some of the provisions of the First
Additional Protocol are declaratory of custom and thus binding on all States, while
others are innovations which bind only the States which are parties to the Protocol,
it is frequently important to consider which treaty provisions are part of customary
law and which are not (Greenwood, 1991).
In more recent times, another influence on the law of war has been the law of
human rights. To the extent that human rights treaties apply in time of war or armed
conflict, they frequently cover much the same ground as the treaties on the law of war.
The law of war, however, is both more specialized and more detailed and in many
areas international human rights law adds nothing to it. 3 In addition, most human
rights treaties are limited in their field of application, as demonstrated by the decision
of the European Court of Human Rights in Bankovic v Belgium and others that the
European Convention on Human Rights did not apply to the NATO bombing of
Yugoslavia during the Kosovo campaign in 1999.4 Perhaps most importantly, the law
of war requires a degree of reciprocity in that a law of war treaty applies only between
2 These arid other relevant treaties are contained in Roberts and Guelff, 2000.
3 See, eg, Legality of Threat or Use of Nuclear Weapons, Advisory Opinion, Ie] Reports 1996, p 226,
paras 24-25.
4 Bankovicv Belgium and others, Decision of21 December 2001,123 ILR 94.
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 791
States party to it, whereas a human rights treaty binds any State which is party to it
irrespective of what other States do. Nevertheless, there are many facets of warfare
(such as the treatment of prisoners and the government of occupied territory) where
human rights law may be applicable alongside the law of war. s A fundamental
principle of the law of war is that it applies equally to all the parties to an armed
conflict, irrespective of who is the aggressor. War crimes courts at the end of the
Second World War rejected prosecution arguments that the illegality of Germany's
invasion of, eg, the Balkan States made everything done by German forces during
their occupation of those States a breach of the law of war and judged members of the
German forces by the same standards which applied to allied troopS. 6 Conversely, the
fact that Kuwait and its allies (known as 'the coalition') were acting lawfully in resort-
ing to force against Iraq in 1990-91, whereas Iraq's invasion of Kuwait was plainly
illegal, in no way relieved the coalition of its obligations not to target civilians and to
treat prisoners of war in accordance with the requirements of the Third Geneva
Convention. Nevertheless, it must be kept in mind that, in assessing whether a State
is acting lawfully in using armed force, both the law of war and the law described in
Chapter 19 must be kept in mind. The use of force by a State is lawful only if (a)
its resort to force meets the requirements outlined in Chapter 19 and (b) the manner
in which it uses force complies with the law considered in the present chapter.
II. WHEN DOES THE LAW OF WAR APPLY?
At one time the law of war applied only if there was a state of war between two or
more States. 'War', for these purposes, was a formal legal concept which only came
into being when there was a declaration of war or some other indication by one of the
parties to a conflict that it regarded itself as being at war with its adversary; there
could be war without actual fighting and fighting without war. Determining whether
a conflict constituted a war, in this sense, was therefore never easy; contrary to popular
belief, most conflicts did not start with a declaration of war even in the eighteenth
and nineteenth centuries'? This problem became worse during the twentieth century
and, since 1945, declarations of war have been almost unknown with most States
engaged in hostilities denying that they were at war. Since the duty to treat prisoners
or civilians in a humane fashion should not depend upon such formalities, in 1949
5 For example, the detention at Guantanamo Bay of persons captured by the United States in Afghanistan
has been challenged as incompatible with the American Declaration of Human Rights; see, eg, the pre-
cautionary measures issued by the Inter-American Commission of Human Rights, (2002) 41 ILM 532 and the
US response, ibid., p 1015.
6 See, eg, United States v List, 15 Ann. Dig. 632 (1948).
7 A report prepared in 1883 for a Board of Trade committee examining the defence implications of a
Channel Tunnel stated that out of 117 conflicts between 1700 and 1870, only ten had begun with a declaration
of war; Maurice, 1883).
79 2 CHRISTOPHER GREENWOOD THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 793

Article 2 of the Geneva Conventions provided that the Conventions should apply to international and the whole law of war should apply. Their view prevailed in Article
any armed conflict between States parties, t;!ven if the state of war was not recognized 1 (4) of Additional Protocol I, 1977, which provided that the Geneva Conventions and
by one of them. Thus, servicemen captured in a conflict in which both sides denied the Protocol should apply to
that they were at war (such as the 1982 Falldands conflict or the Kuwait hostilities armed conflicts in which peoples are fighting against colonial domination and alien
of 1990-91) were nevertheless prisoners of war. Today, therefore, the law of war occupation and against racist regimes in the exercise of their right of self-determination, as
applies to any armed conflict between two or more States, whether or not the parties enshrined in the Charter of the United Nations and the Declaration on Principles of Inter-
regard themselves as being in a state of war (Greenwood, 1987). national Law concerning Friendly Relations and Co-operation among States in accordance
That leaves, however, the question what is an armed conflict. The Commentary on with the Charter of the United Nations.
the Geneva Conventions published by the International Committee of the Red Cross
In such a situation, the 'national liberation movement' representing the people con-
(ICRC) states that 'any difference between two States and leading to the intervention of
cerned may make a declaration that it accepts the obligations laid down by the
members of the armed forces is an armed conflict' within the meaning of the Geneva
Protocol and the Geneva Conventions, which will then apply to both sides in the
Conventions. In humanitarian terms, this approach makes good sense. However, State
conflict. 9 Article 1(4) has never been applied and its practical effect is small, since
practice is more equivocal and it is by no means clear that most States would regard an
colonial situations are now very few and of the other States to which it was intended
isolated incident or exchange of fire, however serious the consequences, as an armed
to apply, South Mrica has now abandoned apartheid and Israel has not become a
conflict, bringing into operation the full panoply of the Geneva Conventions.
party to the Additional Protocol and is consequently not bound by Article 1(4). On
A bigger problem is whether the law of war ever applies to hostilities in which one
ratification of the Protocol, the United Kingdom entered a reservation designed to
side is not a State. The issue of civil war occurring within a State is discussed later
ensure that Article 1(4) would not apply in the event of a recurrence of terrorism in
in this chapter. For present purposes, however, three difficult cases need to be
Northern Ireland.lO
considered.
Thirdly, there is the question of fighting between a State and a terrorist organiza-
First, there is the question whether the law of war applies to United Nations mili-
tion. Following the terrorist attacks of 11 September 2001, the United States govern-
tary operations. The United Nations is not a party to any of the treaties on the law of
ment has taken the position that it has been engaged for some years in an
war (which are open only to States) and, since it acts on behalf of the international
international armed conflict with the Al-Qaeda terrorist movement. The United
community as a whole, there is an understandable reluctance to place it on a level
States has accordingly maintained that the law of war applies to its military operations
of equality with forces opposing it. If the law of war is not applicable, however, the
against Al-Qaeda and that captured members of Al-Qaeda can be held for the
humanitarian protection it offers is not available and the consequences of that may
duration of the conflict as combatants (although the United States contends
be terrible. In practice, it is now accepted that where the Security Council authorizes
that these detainees are not entitled to prisoner of war status, an issue considered
action by a State or group of States, as in the Kuwait conflict, the law of war applies
below). This approach appears to confuse a number of different issues. The attacks
with equal force to both sides in the ensuing hostilities. There is more uncertainty
of 11 September were armed attacks against the United States for the purposes of
where the United Nations itself takes military action through the deployment of a
Article 51 of the Charter and the United States was entitled to respond to those
peacekeeping force and that force becomes involved in the fighting (as happened,
attacks by way of self-defence (Greenwood, 2002). To the extent that, in Mghanistan,.
eg, at various times in the Bosnian hostilities in 1992-95). The United Nations has
that led United States forces into conflict with the forces of another State, there was
recently issued a directive which requires United Nations peacekeeping forces to
an armed conflict to which the law of war applied. But that does not mean that
observe the basic principles of the law of war8 but it is still unclear to what extent the
the United States has been engaged in an armed conflict with Al-Qaeda even after
United Nations force in such a case is to be treated as a party to hostilities and whether
11 September 2001, still less for years before that date. Al-Qaeda has none of the
the full body of the law of war applies to it. The picture is further complicated by the
attributes of statehood (territory, population, government) and is no more than
fact that the Convention on the Safety of United Nations and Associated Personnel,
an underground terrorist movement whose recourse to violence is criminal. It is
1994, which prohibits acts of violence against United Nations peacekeepers, applies
noticeable that other States appear not to have followed the United States approach in
only if the law of war is not applicable.
this respect.
Secondly, during the decolonization era, many third world States argued that
hostilities between liberation movements and colonial regimes should be treated as
9 Additional Protocol I, Article 96(3). . .
8See the Secretary-General's Bulletin on Observance by United Nations Forces of International 10 Roberts and Guelff, 2000, p 510. In fact, the situation in Northern Ireland has never come wlthm the
Humanitarian Law, Roberts and Guelff, 2000, p 721. terms of Article 1(4) in any event.
794 CHRISTOPHER GREENWOOD
III. WHO IS ENTITLED TO TAKE PART
IN HOSTILITIES?
A central feature of the laws of armed conflict ever since the eighteenth century has
been the distinction between combatants and civilians. The distinction is important
for two reasons. First, combatants are legitimate targets, civilians are not. Secondly,
lawful combatants are entitled to participate in hostilities ll and,.if captured, to be
treated as prisoners of war (POWs), whereas civilians who take a direct part in hos-
tilities-and who thereby become unlawful combatants-are largely unprotected by
the laws of armed conflict. They have no claim to prisoner of war status and can be
tried and punished for their belligerent acts. It is therefore of the utmost importance
that combatants should be distinguishable from civilians. That is no easy task,
however, when one party to a conflict relies on irregular combatants rather. than
. uniformed soldiers.
Articles 1 and 2 of the 1907 Hague Regulations on Land Warfare and Article 4 of
the Geneva POW Convention, 1949, laid down different standards for members of the
regular armed forces and irregular combatants. Under their provisions, members of
the regular armed forces (a term which includes conscripts as well as professional
soldiers) of a State l2 are automatically entitled to combatant and, therefore, POW
status. They forfeit that entitlement, however, if they engage in hostilities while dis-
guised as civilians. Thus, the Privy Council held that two Indonesian soldiers who
blew up a bank in Singapore during an armed conflict were not entitled to be treated
as prisoners of War and had properly been convicted of murder, because they had
been disguised in civilian clothes when they planted the explosive. 13 It has also fre-
quently been held that a person who takes up arms against the State of which he is a
national is not a lawful combatant and has no entitlement to POW status, even
though he may be a member of the regular armed forces of the enemy State. 14
Irregulars, on the other hand are lawful combatants under the 1907-49 provisions
only if:
( 1) they are members of an organized force;
(2) that force belongs to a party to the conflict;
{3) the force is under the command of a person responsible for his subordirIates;
11 There are some non-combatant members of armed forces, such as chaplains, and medical personnel
who are not entitled to take part in hostilities. If captured, these non-combatant personnel do not become
prisoners of war, although they may be retained by the capturing State, in which case they are entitled to
treatment equivalent to that of prisoners of war with certain additional privileges. This section concerns only
the combatant members of armed forces.
12. Israel denied that the forces of the PLO and PFLP were entitled to POW status on the ground that they
did not 'belong' to a State, Prosecutor v Kassem (1969), 42 ILR 470.
13 Ali v Public Prosecutor [1969 J 1 AC 430.
14 See Oie Hee Koi v Public Prosecutor [1968J AC 829. For a contrary view, see Levie, 1979, p 74.
----------
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 795
(4) the members of the force wear a fixed, distinctive sign, recognizable at a
distance;
(5) they carry arms openly; and
(6) they conduct operations in accordance with the laws and customs of war. 15
Although Article 4 of the Geneva POW Convention specifies that members of
organized resistance groups in occupied territories may qualify as lawful combatants,
this provision is almost entirely symbolic as they are still required to comply with the
above conditions. In general, this is impossible: few members of the resistance in
France during the Second World War, for example, could have complied with the
requirement of wearing a 'fixed, distinctive sign'. The 1958 British Manual of Military
Law, while conceding that 'something less than a complete uniform' is sufficient to
meet this requirement states:
... it is reasonable to expect that the silhouette of an irregular combatant in the position of
standing against the skyline should be at once distinguishable from the outline of a peaceful
inhabitant, and this by the naked eye of an ordinary individual at a distance from which the
form of an individual can be determined. 16
The life expectancy of such an irregular would be short.
In practice, therefore, almost all irregulars fall outside the test laid down by
the Hague Regulations and the Geneva Convention. Additional Protocol I attempts to
alter this position. Article 44 of the Protocol largely assimilates regular and irregular
forces. The first sentence of Article 44(3) lays down the basic requirement for both
groups:
In order to promote the protection of the civilian population from the effects of hostilities,
combatants are obliged to distinguish themselves from the civilian population while they are
engaged in an attack or in a military operation preparatory to an attack.
This rule differs from the 1907/1949 standard in two respects. First, it does not specify
the manner in which combatants must distinguish themselves from civilians; in
particular, there is no reference to a fixed, distinctive sign. Secondly, Article 44( 3)
makes clear that the duty of a combatant to distinguish himself from the civilian
population applies only 'during an attack ... or a military operation preparatory to
an attack'.
If Article 44(3) had stopped there, it would have been generally acceptable. How-
ever, the rule contained in the first sentence of the Article did not go far enough for
some States who maintained that there would still be circumstances in which the
standard was too high for guerrillas to meet. The result was that a second sentence was
added to Article 44(3):
15 These rules are relaxed in the case of a levee en masse, where the population of a territory spontaneously
takes up arms against an invader who has not yet occupied the territory; Hague Regulations, Article 2.
16 British Manual ofMilitary Law, Part III, para 92 (1958).
---- ----------------------------------------------------------------
 CHRISTOPHER GREENWOOD
Recognizing, however, that there are situations in armed conflicts where, owing to the nature
of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status
as a combatant, provided that, in such situations, he carries his arms openly:
(a) during each military engagement; and
(b) during such time as he is visible to the adversary while he is engaged in a
military deployment preceding the launching of an attack in which he is to
participate.
This provision proved highly controversial and was one of the reasons for the decision
by the United States not to ratify Protocol 1. It was said that the second sentence
of Article 44( 3) went so far towards accommodating the guerrilla that it seriously
undermined the protection of the true civilian.
The drafting of the provision is certainly less than happy. Nevertheless, its effects
should not be overstated. The basic rule remains that stated in the first sentence
of Article 44(3); the looser standard in the second sentence applies only in the
exceptional case where a combatant cannot distinguish himself in the normal manner.
The United Kingdom made a declaration at the time of ratifying Protocol I that such
an exceptional situation can only arise in occupied territory or in a conflict covered by
Article 1 (4) of the ProtocoL 17 Moreover, in cases where the second sentence does apply,
a combatant is still required to carry arms openly throughout the time that he is
visible to an adversary while deploying preceding the launching of an attack. The view
of most delegations at the Conference which adopted the Protocol was that this meant
that a combatant is required to carry arms openly throughout the time when he is
visible to an enemy while moving to the place from which an attack is to be launched.
This interpretation has more support and accords better with the text than the PLO's
statement that it was only necessary to produce weapons immediately before opening
fire. A combatant who fails to comply with the requirements of the appropriate
sentence of Article 44(3) commits the war crime of perfidy and forfeits his entitle-
ment to POW status, although he is entitled to treatment equivalent to that of a
POW until convicted. 18 In effect, the only difference between the treatment which
must be given to a captured illegal combatant and that which must be accorded to a
POW is that the illegal combatant is liable to trial and, if convicted, to punishment for
the mere fact of bearing arms. Until conviction, he must be treated in the same way as
a POW. The only safe course for a commander is therefore to treat anyone caught
bearing arms as a POW until it is established by an appropriate tribunal that he is not
entitled to that status.
Article 44(3)-or, at least, the rule laid down in the second sentence-is an innova-
tive provision and is thus binding only between States which have become parties to
Additional Protocol 1. Other States continue to be bound by the stricter rule in the
Hague Regulations and the Geneva POW Convention. The highly unsatisfactory
17 Roberts and Guelff, 2000, p 510.
18 Articles 44(4) and 37(1)(c).
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 797
result is that there are currently two different standards of what constitutes lawful
combatancy.
IV. WHAT IS A LAWFUL TARGET AND HOW MAY
IT BE ATTACKED?
The question who, or what, is a legitimate target is arguably the most important
question in the law of war. The modern law of targeting revolves around two central
principles:
(a) only combatants.and other military objectives are lawful targets; the civilian
population and 'civilian objects' must not be made the target of attack (the
principle of distinction); 19 and
(b) even military objectives may not be attacked if an attack is likely to cause
civilian casualties or damage which would be excessive in relation to the con-
crete and direct military advantage which the attack is expected to produce
(the principle of proportionality).20
So far as people are concerned, the law is, at least, reasonably clear. Everyone who
qualifies for combatant status under the rules discussed in the preceding section is a
legitimate target, unless he is wounded and thus unable to take any further part in the
21
hostilities, shipwrecked, has baled out of a disabled aircraft, or has surrendered. All
other persons are civilians and therefore may not be attacked unless they take a direct
part in hostilities. The practice, widely followed in the Second World War, of treating
the morale of an enemy's civilian population as a legitimate target is now clearly
unlawful and Article 51(2) of Additional Protocol I expressly prohibits attacks
designed to spread terror among the civilian population. This prohibition applies as
much to guerrilla operations, such as the planting of a car bomb, as it does to large-
scale aerial bombardment.
The duty to distinguish between civilian objects and military objectives, however,
depends upon a workable definition of what constitutes a military objective, some-
thing which it has not been easy to achieve. Attempts to draw up a list of legitimate
military objectives were invariably overtaken by events as technological changes made
more and more items of military importance. 22 A more flexible definition was therefore
formulated in Additional Protocol I, Article 52(2):
19 So-called because it requires that a distinction be drawn between military objectives and civilians. The
principle is codified in Article 48 of Additional Protocol I but is a rule of customary law applicable to all States.
20 Codified in Articles 51(5)(b) and 57 of Additional Protocol L The principle of proportionality is also
part of customary international law. See, ego US, Commander's Handbook on the Law of Naval Operations,
(NWP 9) para 8.1.2.1 and n. 17 (1989).
21 GCI Article 12, GCII Article 12, Additional Protocol I Articles 40-42.
22 This was the fate of the Hague Draft Rules on Aerial Warfare, 1923.
 798 CHRISTOPHER GREENWOOD
In so far as objects are concerned, military objectives are limited to those objects which by
their nature, location, purpose or use make an effective contribution to military action and
whose total or partial destruction, capture or neutralization, in the circumstances ruling at
the time, offers a definite military advantage.
The first limb of this test is broader than it may seem. While some items, such
~s tanks, military aircraft, or a munitions factory, are by their nature of military
unp0 rtance, an object which is, in itself, normally harmless, such as a house or a
water tower, may come t.o make an effective contribution to military action
?ecause it is used by enemy forces or simply because its location gives it a military
Importance.
The importance of the second limb of the test lies principally in the phrase 'in the
circumstances ruling at the time'. The significance of this phrase was summed up by
one commentator in these terms:
This element in the definition precludes military commanders from relying exclusively on
abstract categorizations in the determination of whether specific objects constitute military
objectives ('a bridge is a military objective'; 'an object located in the zone of combat is a
military objective', etc.). Instead, they will have to determine whether, say, the destruction
of a particular bridge, which would have been militarily important yesterday, does, in the
circumstances ~uling today, still offer a 'definite military advantage': if not, the bridge
no longer constItutes a military objective and, thus, may not be destroyed (Kalshoven, 1978,
pIll).
This emphasizes the importance of a commander making an up-to-date assessment
of the significance of a target and the military advantage of denying it to the enemy
before ordering an attack.
Article 52(3) of Additional Protocol I goes on to provide that:
In case of doubt whether an object which is normally "dedicated to civilian purposes, such as
a place of worship, a house or other dwelling or a school, is being used to make an effective
contribution to military action, it shall be presumed not to be so used.
This presumption applies only to objects normally used exclusively for civilian pur-
poses and not to objects habitually used both by the military and civilians, such as
?ridges or railway lines. Even so, its application is likely to cause problems, especially
III the combat zone. At what point do doubts about the use of such an object arise or
cease? Unlike the provisions of Article 52(2), Article 52(3) is an innovation which has
not become part of customary law and is therefore binding only as between parties to
Protocol 1.
Much controversy has arisen concerning attacks on 'dual use' objects used by both
civilians and the military. Whether a dual use object is a military objective depends
upon whether its military use is sufficient to bring it within the test laid down in
Article 52(2). In the Kuwait conflict, the coalition treated Iraq's power stations as
legitimate targets, since they all contributed power to a national grid which supplied
both civilian and military users. In view of the importance of this supply of power
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 799
to the Iraqi military,23 the power stations were undoubtedly making an effective
contribution to Iraqi military action and their destruction or neutralization offered a
definite military advantage in the circumstances ruling at the time they were attacked.
The only question which remained was whether the damage to the civilian population
caused by those attacks outweighed the military gains. If it had done so, then, not-
withstanding that the power stations were military objectives, the attacks would have
violated the principle of proportionality.
That principle requires a commander to balance the likely civilian casualties (dead
and injured) and damage to civilian property against the concrete and direct military
advantage anticipated from an attack. This is no easy task. An obvious example of
an attack which would violate the principle of proportionality is the bombardment of
a small sentry post outside a crowded schooL Most cases, however, are less straight-
forward. Any comparison between the military advantages and the civilian casualties
which an attack is expected to produce is necessarily going to be a fairly crude one.
Nevertheless, what is required is that a commander should ask himself whether an
impartial observer would consider the military gains he expects from the attack to be
worth the likely civilian casualties and damage. The United Kingdom has placed on
record its understanding that:
the military advantage anticipated from an attack is intended to refer to the advantage
anticipated from the attack considered as a whole and not only from isolated or particular
parts of the attack. 24
It is less clear what factors have to be taken into account on the other side of this
equation. In the case of the Iraqi power stations, for example, were the military
advantages derived from attacking these targets to be weighed only against the civilian
losses caused in the attacks themselves, or should account also be taken of the wider
effects of the drastic reductitm in power supply, such as the failure of the water
purification and sewage processing systems (both of which were dependent upon
electric power), which had far greater effects upon the civilian population?2S To dis-
regard any collateral damage which did not occur during the attacks themselves
would be an excessively narrow approach and there are clear indications that the
wider effects of attacks were considered by coalition planners in applying the pro-
portionality test. Nevertheless, the more remote the consequences, the more difficult
they become to assess. In the case of the Iraqi power stations, for example, the
long-term effects on the civilian population of the breakdown of essential services
were as much a result of the Iraqi decision to give only a low priority to the needs
of the civilian population, the maintenance by the Security Council, after the end of
hostilities, of economic sanctions and the refusal by the Iraqi government to accept
23 See the evidence of General de la Billiere to the House of Commons Defence Committee, Preliminary
Lessons of Operation Granby, 1991, p 24.
24 Roberts and Guelff, 2000, p 511.
2S See Middle East Watch, 1991. However, in view of the military advantages which the attacks produced, it
is probable that they did not violate the principle of proportionality whichever test one applies.
 CHRISTOPHER GREENWOOD
800
the conditions imposed by the Council on the sale of Iraqi oil. Moreover, if the long-
term effects on the civilian population must be taken into account, so must the
long-term milita,ry advantages which may be expected from an attack (Rogers, 1982,
pp 310-311).
The application of the principles of distinction and proportionality impose
important duties on the commander who orders an attack. According to Article 57 of
Additional Protocol I, those who plan or decide upon an attack must:
(I) do everything feasible to verify that the target consists of combatants or other
legitimate military objectives under the test laid down in Article 52 and is not
subject to any regime of special protection;26
(2) refrain from launching an attack which may be expected to cause dis-
proportionate civilian casualties or damage;
(3) if there is a choice of weapons or methods of attack available, select those
which are most likely to avoid, or at least minimize, incidental civilian
casualties or damage; and
(4) if there is a choice between targets for obtaining a similar military advantage,
choose the target which can be attacked with the least risk to civilian life and
property.
In addition, an attack must be cancelled or suspended if it becomes apparent that the
target is not, in fact, a military objective or that the attack cannot be carried out
without disproportionate civilian losses.
The requirement that, in choosing the weapons and methods of attack which
will be used, the commander should have regard to which of those weapons and
methods will be most likely to avoid or reduce incidental civilian losses is particularly
important. It does not mean that the commander must always use the most dis-
criminating weapon which his country possesses. At the lower levels of command,
there will generally be little choice of weapon available. Even where the commander.
has a range of weapons at his disposal (eg, if he commands a battle group), he is
entitled to take account of considerations such as the quantity of a particular weapon
at his disposal, the likely future demands on his weapon stocks, the time within which
a particular weapon can be brought to bear, and the degree of risk to his own forces.
Similarly, in selecting the method of attack, the risk to his own forces, the likely level
of casualties and the extent of the military resources at his disposal may lawfully be
taken into account. Nevertheless, Article 57 means that the likely effect in increasing
or reducing collateral civilian casualties of selecting a given weapon or method of
attack must always be one of the most important considerations in making that
selection. It also means that there will be occasions when a commander must accept a
higher level of risk for his own forces in order to avoid or reduce collateral damage to
the enemy's civilian population.
26 This is considered below.
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 801
The application of these principles can be seen in coalition practice during
the Kuwait conflict. The British Air Commander Middle East told the House of
Commons Defence Committee that on two occasions he had decided not to proceed
with attacks upon targets allocated to the RAF, because of the risk of collateral civilian
losses. 27 The US Department of Defense Report on the conflict also stated that pilots
were instructed to break off attacks if targets could not be properly identified and that
methods of attack, including the use of low level attacks and precision missiles, were
designed to minimize civilian casualties. 28
The law of armed conflict also imposes obligations upon a commander to take
. action to protect the civilian population under his control from the effects of enemy
attacks. Article 58 of Additional protocol I imposes a duty to 'avoid locating military
objectives within or near densely populated areas'. This requirement is addressed
primarily to those responsible for a State's long-term civilian and military planning.
While it is the natural corollary of the obligations in Article 57, it must be admitted
that few States are blameless in this regard. Historical factors have often resulted in
military objectives today being located close to civilian population centres and con-
siderations of cost and convenience have tended to deter States from relocating them.
There is also a duty to endeavour to remove the civilian population from the vicinity
of military objectives and a strict prohibition on any kind of 'human shield' policy.
However, the failure of a State to comply with these requirements does not absolve
its adversary from complying with the obligations discussed earlier, although it may
affect the application of the proportionality test. .
In addition to the general principles of distinction and proportionality, certain
objects are subject to special regimes of protection. The First, Second, ~d Fourth
Geneva Conventions and Articles 8 to 31 of Additional Protocol I contam several
provisions prohibiting attacks upon medical facilities, personnel, and transport.
Article 53 of Additional Protocol I, like the Hague Convention on Cultural Property,
1954, contains special provisions for the protection of historic monuments and it:~s
of religious and cultural importance. Article 54( 1) of Additional Protoco~ I. prohibIts
starvation of civilians as a method of warfare, while Article 54(2) prohibIts attacks
on objects indispensable for the survival of the civilian population, al~oug~, para-
doxically, there is an exception for a State pursuing a scorched earth polIcy on Its own
territory. Article 55, which seeks to protect the natural environment against the effects
of attacks, is discussed in the next section.
More controversially, Article 56 of Additional Protocol I prohibits attacks on dams,
dykes, and nuclear electrical generating stations, even if they are military objectives,
if such attack is likely to cause the release of dangerous forces and consequent severe
losses among the civilian population. This special protection is lost, in the case of
nuclear electrical generating stations, only if they are used to provide electric power
27 Evidence of Air Vice-Marshal Wratten, House of Commons Defence Committee, Preliminary Lessons of
Operation Granby, 1991, p 38. . .
28 US Final Reportto Congress, CO!1duct of the Persian Gulf War (1992), AppendIX 0, pp 1-10.
 802 CHRISTOPHER GREENWOOD
'in regular, significant and direct support of military operations and if such attack is
the only feasible way to terminate such support'. Insofar as this provision seeks to go
beyond the requirements of the proportionality test, it is probably unworkable. Article
56 has been heavily criticized and is not regarded as declaratory of customary
international law, so that it is binding only between parties to Additional Protocol 1.
V. WHAT ARE THE LIMITATIONS ON THE
WEAPONS WITH WHICH STATES MAY
CONDUCT HOSTILITIES?
It is a long-established principle that the parties to a conflict do not have an unlimited
right to choose the methods and means ofwarfare. 29 Restrictions on their choice have
taken two forms. First, certain general principles regarding weaponry have evolved.
.Secondly, the international community has adopted a number of specific prohibitions
or restrictions, each of which deals with a particular type of weapon or method
of warfare. The restrictions which have evolved apply to methods of warfare (ie, the
use of weapons and tactics), as well as concerning the legality of certain weapons
(means of warfare) as such. Whereas the prohibitions on certain weapons tend to be
of greater concern to the military planner and those involved in weapons develop-
ment, the limitations on methods of warfare are of direct concern to all commmders.
Three general principles can be identified:
(1) the 'unnecessary suffering' principle prohibits the use of methods or means of
warfare which may be expected to cause unnecessary suffering or superfluous
injury;30
(2) the 'discrimination' principle prohibits the use of methods or means of
warfare which cannot be directed against a specific military objective -and are
therefore likely to strike civilians and military objectives without distinction;31
and
(3) the 'treachery' or 'perfidy' principle prohibits certain treacherous methods of
warfare.
In addition, there is an emerging principle prohibiting the use of methods and means
of warfare which have certain effects on the environment. Although this principle
exists, as yet, only in treaty law and is not part of customary international law, it is
29 Article 22 Hague Regulations on Land Warfare, 1907; Article 35(1) Additional Protocol I. 'Means of
warfare' refers to the weapons and weapon systems themselves, while 'methods of warfare' refers to the
manner in which weapons are used
30 Article 23(e) Hague Regulations; Article 35(2) Protocol I.
31 Article 51(4) Additional Protocol I.
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW)
arguable that customary law requires that some regard be had to the likely effect of
weapons on the environment.
Of these principles, the unnecessary suffering principle has proved the most
important. As well as providing a general yardstick against which all weapons and
methods of warfare must be judged, it has supplied the inspiration for many of
the specific bans on particular categories of weapon discussed below. It is important
to bear in mind, however, that the limitation which this principle imposes is relative,
not absolute, in character. The fact that a weapon or method of warfare causes severe·
or widespread injuries, or is regarded as particularly cruel is not, in itself, sufficient to
violate the unnecessary suffering principle. That principle only prohibits weapons
which cause unnecessary suffering. The infliction of injury is an inherent feature
of war; what this principle seeks to prohibit is the infliction of injuries or suffering
which serve no useful military purpose. It therefore requires a balance to be struck
between the military advantage which a weapon or a particular method of warfare
may be expected to achieve and the degree of injury or suffering which it is likely
to cause .
The first express statement of the principle in modern law is to be found in the
preamble to the Declaration of St Petersburg, 1868, which states that 'the only
legitimate object which States should endeavour to accomplish during war is to
weaken the military forces of the enemy' and that 'for this purpose it is sufficient
to disable the greatest number of men'. Since 'this object would be exceeded by
the employment of arms which uselessly aggravate the sufferings of disabled men
or render their death inevitable', such weapons were held to be contrary to the laws of
war. This approach is somewhat simplistic; the object of military operations is not
limited to disabling enemy soldiers-the destruction of enemy equipment, the dis-
ruption of communications and lines of supply, the crippling or deception of target-
ing devices, for example, also constitute legitimate goals. Moreover, the effectiveness
of a particular weapon has to be seen in the light of the entire range of tasks which the
armed forces as a whole have to accomplish. Even the use of weapons against enemy
personnel has to be seen as the use of weaponry by one group of combatants against
another, rather than as a duel between two individual combatants. .
In deciding whether the use of a particular weapon or method of warfare contra-
venes the unnecessary suffering principle, the crucial question is whether other
weapons or methods of warfare available at the time would achieve the same military
goal as effectively while causing less suffering or injury. In answering that question,
it has been said that:
The factors which must ... be taken into account are the availability of alternate weapons
systems (and their effects), the logistics of providing the weapon and its ammunition at the
place where it is to be used when needed, and the security of the troops involved (Bothe,
Partsch, and Solf, 1982, p 197).
On the other side of the equation, an assessment of the degree of injury or suffering
caused will include the painfulness of wounds and the degree oflong-term disability.

CHRISTOPHER GREENWOOD
In addition, it probably has to include the psychological damage as well as the physical
injury to the victim.32
The principle of discrimination is an aspect of the rules regarding the protection of
civilians which were discussed in the preceding section. It prohibits the use of
methods of warfare which are inherently indiscriminate, including, according to
Article 51(5)(a) of Additional Protocol I, treating 'as a single military objective a num-
ber of clearly separated and distinct military objectives located in a city, town, village
or other area containing a similar concentration of civilians or civilian objects', the
practice known as 'target area bombing'. Iraq's use of Scud missiles against large areas
in Saudi Arabia and Israel was a violation of this principle. Although aimed primarily
at methods of warfare, the discrimination principle would also ban a weapon which
was incapable of being used in a way which enabled it to target a specific military
objective, for example the VI and V2 of the Second World War, as it was impossible to
control or predict where such weapons would land. 33
The treachery principle is the basis for the prohibition of certain methods of
warfare which endanger protected persons, such as the use of the Red Cross emblem
to shield military operations or the feigning of civilian status by combatants. 34 The
prohibition on the wearing of enemy uniforms in combat is also derived from this
principle. Perfidy should be distinguished from legitimate ruses of war, such as the use
of false signals to create the impression of troop movements. For historical reasons,
the law of naval warfare permits a greater latitude in this area, treating as legitimate
ruses conduct which the laws of land warfare might regard as perfidious.
In addition to the general principles, the laws of armed conflict contain a number
of treaty provisions expressly banning certain weapons or substantially restricting
their use:
(1) bullets or projectiles under 400 grammes weight which are explosive or are
charged with fulminating or inflammable substances (St Petersburg Declara-
tion, 1868);
(2) Dum-dum bullets (Hague Declaration No 3, 1899);
(3) poison and poisoned weapons (Hague Regulations on Land Warfare, 1907,
Article 23(a) );
(4) automatic submarine contact mines which do not comply with the require-
ments of Hague Convention No VIII, 1907;35
32 See, however, the debate on this point in the Report of the Conference of Government Experts on the Use of
Certain Conventional Weapons, Lucerne Session 1974, para 23.
33 Another example would be the plan apparently devised, but never put into operation, in the
Second World War to drop thousands of bats with tiny incendiary devices over Japan; US, Commander's
Handbook on the law of Naval Operations (NWP 9), para 9.1.2, n. 12 (1989); Thomas and Duncan, 1999,
p 44l.
34 Additional Protocol I, Articles 37-39.
35 This Convention requires that unanchored mines must be so constructed as to become harmless not
more than one hour after being laid. Anchored mines must be constructed so as to become harmless as soon
as they have broken loose from their moorings.
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 805
(5) asphyxiating, poisonous, and other gases and all analogous liquids, materials,
and devices, together with bacteriological weapons (Geneva Gas Protocol, 1925
and later treaties, in particular the Chemical Weapons Convention, 1993);
(6) weapons which injure with fragments which cannot be detected by x-rays
(Protocol I to the UN Convention on Conventional Weapons, 1981);
(7) certain uses of anti-personnel mines and booby-traps (Protocol II to the Con-
ventional Weapons Convention); the possession and use of anti-personnel
mines is altogether prohibited for parties to the 1998 Ottawa Convention;
(8) certain uses of incendiary weapons, in particular the use of air delivered incen-
diary weapons against targets situated amongst concentrations of civilians
(Protocol III to the Conventional Weapons Convention);
(9) certain uses of blinding laser weapons (Protocol IV to the Conventional
Weapons Convention).
Two separate treaty provisions have been adopted regarding the environment. First,
the Environmental Modification Treaty, 1977 (the ENMOD Treaty), bans the use of
'environmental modification techniques having widespread, long-lasting or severe
effects as the means of destruction, damage or injury'. Secondly, Additional Protocol
I, adopted in the same year but by a different international conference, prohibits
the employment of 'methods or means of warfare which are intended, or may be
expected, to cause widespread, long-term and severe damage to the natural environ-
ment'.36 Despite the superficial similarity between these two provisions, they are in fact
very different. The ENMOD Treaty is designed to prevent the deliberate manipulation
of the environment as a method of warfare, whereas the environmental provisions of
the Additional Protocol are concerned with preventing incidental damage to the
environment arising out of the use of weapons against other targets. Moreover, while
ENMOD refers to 'widespread, long-lasting OT severe' damage, the Protocol speaks of
'widespread, long-term and severe' damage. That the threshold for ap~lication .of the
provisions in the Protocol is higher is also demonstrated by the meanmgs attnbu~ed
to these provisions. The records of the ENMOD conference record an understandmg
that 'widespread' meant an area of several hundred square kilometres, 'long-lasting'
a period of months or 'approximately a season', and 'severe' involved 'serious or sig-
nificant disruption or harm to human life, natural and economic resources or· other
assets'.37 These interpretations, were expressly stated to be for the purposes of the
ENMOD Treaty only. By contrast, the records of the Diplomatic Conference which
adopted protocol I reveal a quite different understanding of the meaning of 'wide-
spread, long-term and severe' in the context of the Protocol. Here, 'long-te~'
apparently means a period of years or even a decade. The records ~so reveal a
widely shared assumption that battlefield damage incidental to conventIOnal warfare
would not normally be proscribed by this provision' (Pilloud, 1987, para 1454).
36 Articles 35(3) and 55.
37 Roberts and Guelff, 2000, p 407.
 806 CHRISTOPHER GREENWOOD
A. NUCLEAR WEAPONS
The most controversial question in relation to weaponry is whether the use of nuclear
weapons would be contrary to the laws of armed conflict. This question was the
subject of an Advisory Opinion given by the International Court of Justice in 1996. 38
There is no legally binding instrument which outlaws nuclear weapons as such.
Although several resolutions of the United Nations General Assembly condemn the
use of nuclear weapons as contrary to the laws of armed conflict, these resolutions are
not legally binding and the International Court has taken the view that they do
not give rise to a rule of customary international law. 39 Those treaties which deal
with nuclear weapons (and which, of course, are binding), such as the Test Ban Treaty,
the Nuclear Non-Proliferation Treaty, and regional agreements such as the Treaty
of Tlatelolco, do not purport to ban nuclear weapons outright but rather to impose
restrictions on their possession or deployment. Although it has sometimes been
argued that these treaties are merely specific illustrations of a general prohibition,
there is nothing in their texts or their drafting histories to support such an inference.
Indeed, they could just as well be taken to be evidence that no such general pro-
hibition exists, since if it did, most of these agreements would be unnecessary.
In reality, these treaties were negotiated between States which took very different views
of the wider question of whether nuclear weapons are lawful and should therefore be
seen as leaving that question open. 40
The Court also rejected the argument that, since nuclear weapons cause radiation
'pois~ning', their. use would violate the prohibition on 'asphyxiating, poisonous or
other gases and of all analogous liquids, materials or devices' in the 1925 Geneva Gas
Protocol and the ban on poisoned weapons in Article 23(a) of the Hague Regulations. 41
The fact that nuclear science did not exist at the time these instruments were drafted
does not invalidate this argument -a treaty has to be interpreted in the light of
changed circumstances and, if its terms are broad enough, it can cover weapons which
were not envisaged by those who drafted it. Nevertheless, the argument is flawed.
Although we speak colloquially of radiation 'poisoning', the effects of radiation on the
human body are not strictly analogous to the effects of poisonous gases. Moreover,
there is no evidence that the States parties to the 1925 Protocol regard it as applicable
to nuclear weapons. The United States did not become a party to the 1925 Protocol
until 1975, long after it had become the world's leading nuclear power. It is scarcely
conceivable that the United States would inadvertently have signed away its right to
employ its nuclear deterrent in this way, yet the United States made no reservation of
any kind relating to nuclear weapons on acceding to the Protocol and none of the
other parties to the Protocol appear to have suggested that the United States was now
barred from using nuclear weapons.
The Court held, however, that the absence of a specific legal regime governing the
~: Le?ality of the Threat or Use ofNuclear Weapons, Advisory Opinion, Ie] Reports 1996, p 226; 110 ILR 163.
IbId, paras 68-73. 40 Ibid, paras 58-63. 41 Ibid, paras 54-57.
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW)
use of nuclear weapons in armed conflicts did not mean that such weapons were
somehow above, or outside the scope of, the law. Their use had to comply with
the requirements of the law on the use of force (considered in Chapter 19 above)
and (with one exception) nuclear weapons were subject to the same general principles
on weaponry and targeting as all other weapons. The Court unanimously concluded
that:
A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph
4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is
unlawful;
A threat or use of nuclear weapons should also be compatible with the requirements of the
international law applicable in armed conflict, particularly those of the principles and rules
of international humanitarian law, as well as with specific obligations under treaties and
other undertakings which expressly deal with nuclear weapons. 42
It was therefore necessary to ask whether the use of nuclear weapons would violate the
unnecessary suffering principle, because of the extent and nature of the injuries which
they can cause. While the scale of injuries which can be caused by a nuclear weapon
is undeniable, such a weapon also offers military advantages which are not possessed
by conventional weapons, since the use of a single nuclear weapon is likely to have a
destructive effect upon enemy forces which often could not be produced by the
conventional weapons available to a State. The entire NATO strategy in Europe rested
on such an assumption for many years. In these circumstances, it is difficult to see that
the use of nuclear weapons would invariably cause unnecessary suffering. Each case
would have to be examined on its own facts to see whether the goal which a State
sought to achieve by the use of nuclear weapons could as effectively be achieved by the
conventional weaponry which it could bring to bear.
Similarly, the use of nuclear weapons was held to be subject to the principles
regarding the protection of civilians and civilian property discussed in Section III
above. A deliberate attack upon civilians or civilian objects is unlawful whether it
is carried out using nuclear or conventional weapons (unless it can be justified as a
reprisal, a controversial question considered in a later section). Yet nuclear weapons,
particularly of the battlefield variety, can be used against military objectives, in which
case their use would not violate the principle of distinction. The use of nuclear
weapons against a military objective would, of course, have to be scrutinized
for compliance with the proportionality test: were the likely civilian casualties and
damage to civilian property excessive in relation to the concrete and direct military
advantage the attack was expected to produce? In many cases, a nuclear attack might
fail this test but it cannot be said that it would invariably do so, not least because
nuclear weapons are unlikely to be used unless the military advantages expected from
their use would be considerable.
42 Ibid, para l05(2)(C) and (D).
808 CHRISTOPHER GREENWOOD
The one respect in which the use of nuclear weapons is not subject to the rules
applicable to conventional weaponry is that Additional Protocol I of 1977 was negoti-
ated on the understanding that any new rules which the Protocol introduced (as
opposed to the existing rules which it codified) would apply only to the use of
conventional weapons (Pilloud, 1987, paras 1838-62).43 That does not mean that the
Protocol does not apply to a nuclear war. Many of the provisions of the Protocol, such
as those which state the principles of distinction and proportionality, codify existing
rules of international law and are therefore applicable to all weapons. Only the
innovative provisions of the Protocol, such as those dealing with the natural environ-
ment, are inapplicable to the use of nuclear weapons and they will continue to apply
to the use of conventional armaments, even in a conflict in which nuclear weapons are
also being used.
The reasoning of the Court in the Nuclear Weapons case suggests that there are
circumstances in which nuclear weapons might lawfully be used but the Court's
conclusion was more equivocal. The Court concluded that:
It follows from the above-mentioned requirements [quoted above] 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.44
The Court was evenly divided45 on this paragraph, which was adopted on the casting
vote of President Bedjaoui. The paragraph is not easy to understand and leaves the
legal status of nuclear weapons uncertain. It was the subject of trenchant criticism
both from those judges who considered that the Courf should have given an
unequivocal condemnation of any use of nuclear weapons46 and those who considered
that the logic of the Court's reasoning pointed to a different conclusionY Academic
commentary has been similarly divided (eg, Lowe, 1996; Boisson de Chazournesand
Sands, 1999).
43 See also the declarations made by the United Kingdom and United States on signing Additional Proto-
col I and by other NATO States on ratification, Roberts and Guelff, 2000, PP 499-512.
44 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, IC! Reports 1996, p 226, para
105(2)(E).
45 There were seven votes in favour and seven votes against. Judge Aguilar Mawdsley had died shortly
before the hearings in the case and his successor had not been elected.
46 See, eg, the Dissenting Opinions ofJudges Shahabuddeen, Weeramantry, and Koroma.
47 See the Dissenting Opinions of Vice-President Schwebel and Judge Higgins and the Separate Opinion of
Judge Guillaume.
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW)
VI. WHAT PROTECTION DOES THE LAW AFFORD
THE VICTIMS OF HOSTILITIES?
Quite how one defines the 'victims' of hostilities is a matter of some debate but
international humanitarian law has for long identified three specific groups who
require protection: prisoners of war, civilians, and the wounded, sick, and ship-
wrecked. Each requires separate consideration.
A. PRISONERS OF WAR
The treatment of prisoners of war is the subject of a detailed regime in the Geneva
POW Convention, 1949, and is one of the most developed areas of the laws of armed
conflict. The general principle on which the Convention is based is that a prisoner of
war is neither a criminal nor a hostage but someone who has been detained following
capture solely for the purpose of preventing him from rejoining the enemy's armed
forces. He is not a criminal, for his participation in hostilities is not unlawful, and he
must not, therefore, be kept in a military or civil prison but should be detained in a
POW camp. A POW may be subjected to disciplinary sanctions or put on trial for
offences committed after he has been captured and may be tried for war crimes or
for common crimes committed prior to capture. A rare example of the trial of a POW
for a common crime committed before the hostilities in which he was taken prisoner
was the recent trial in the United States of the Panamanian General Noriega on
charges of drug trafficking. A POW is not a hostage whose treatment or release may
be used as a bargaining counter. Reprisals against POWs are strictly prohibited and
48
they must be released and repatriated on the close of active hostilities, not kept to
extract concessions from the enemy.49
POWs are held by the State into whose hands they have fallen, not the individual
commander or unit which has taken them prisoner. The detaining State is under a
strict obligation not to ill-treat, or tolerate the ill-treatment of, POWs. It is therefore a
clear breach of the Convention for a State to murder, torture, or abuse POWs or to
permit members of its forces or the civilian population to do so. 50 It is also forbidden to
expose POWs to insults and public curiosity. The physical ill-treatment of captured
Kuwaiti and coalition personnel during the Kuwait conflict and the television pro-
gramme in which some of them were compelled to take part both involved violations
of this obligation by Iraq. There were also serious violations of this obligation in
the conflict in the former Yugoslavia. In addition, there is evidence that POWs in the
Yugoslav conflict were forced to perform dangerous tasks, such as collecting bodies
48 Gem Article 13.
49 A~·ticle 118.
50 Article 13. See also the Essen Lynching case, 1 Law Reports of Trials of War Criminals p 88.
810 CHRISTOPHER GREENWOOD
and equipment under fire, which is also prohibited by the Convention. 51 The duty not
to ill-treat POWs is an absolute one, not qualified by considerations of military
necessity. Thus, it is unlawful to kill a POW even where he has been captured by a
commando unit operating. behind enemy lines or a guerrilla group which has no
facilities for keeping prisoners. Similarly, while it is legitimate to question POWs, it is
illegal to coerce them into answering questions, however desperate the detaining
State's need for intelligence may be. 52
As well as being required not to ill-treat POWs, the detaining State has certain
positive duties towards them. Thus, POWs must be removed from the combat zone
and from areas of danger at the earliest opportunity. Holding POWs for any sub-
stantial time at or near a military objective liable to attack is unlawful, whether or not
it is part of a deliberate 'human shield' policy. 53 The Convention goes on to lay down
a number of requirements in relation to the conditions in which POWs may be held.
The detaining State is not freed from these obligations merely because it transfers the
POWs to the custody of one of its allies. Such transfer is lawful only if the allied State
is also a party to the Convention and even then, if that ally fails to comply with the
requirements of the Convention, the State which originally captured the POWs may
be required to ensure that they are properly treated. 54 During the Kuwait conflict, the
United Kingdom set up a special team to monitor the treatment of POWs captured by
British forces who were transferred to other coalition States.
After the close of hostilities in the Second World War, thousands of German and
Japanese POWs were held for years by some of the allied powers, the USSR releasing
the last POWs only in 1958. To avoid a repetition of such events, Article 118 of the
Geneva POW Convention, 1949, provides that:
Prisoners of War shall be released and repatriated without delay after the cessation of active
hostilities.
The fact that no formal peace treaty has been concluded does not, therefore, justify the
retention of POWs, although Iran and Iraq did not begin large-scale repatriation
of POWs captured during the Iran-Iraq War until September 1990, more than two
years after the cessation of active hostilities. Article 118 has, however, given rise to
argument over the case of POWs who do not wish to be repatriated. In the Korean
conflict, North Korea and China argued that Article 118 imposed a strict obligation to
repatriate POWs, who, it was said, were unable to waive their right to repatriation.
51 Article 52. POWs may volunteer for dangerolis tasks. In the Falklands conflict, a group of
Argentine POWs volunteered to clear a munitions store which was endangering British and Argentine
personneL Several of these POWs were killed or injured when a box of ammunition exploded. See (1982)
53 BYIL 523.
52 Article 17. Under this provision, POWs are required to give only their names, ranks, dates of birth, and
identification numbers. There is no ban on asking them about other matters and such interrogation is
common but they may not be coerced into answering or penalized for refusing to do so.
53 Articles 19-20.
54 Article 12.
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 811
The UN forces in Korea, on the other hand, maintained that forcible repatriation was
incompatible with the basic principles of the Convention and with the requirement
to 'release and repatriate'. While this approach is plainly to be preferred, it is open to
abuse if there is no impartial machinery for ensuring that the POWs in question
genuinely do not want to be repatriated. At the end of the Kuwait conflict, the
coalition States announced that they would not repatriate Iraqi POWs who did not
wish to be returned to Iraq. The International Committee of the Red Cross inter-
viewed all POWs and, in the event, some 13,300 out of approximately 70,000, elected
to remain in Saudi Arabia.
B. THE WOUNDED AND SICK
The First and Second Geneva Conventions contain detailed legal regimes for the
treatment of the wounded, sick and shipwrecked. This regime may be summarized,
in the language of the Red Cross Movement, as a duty to 'respect and protect',
ie, a negative duty not to do harm and a positive obligation to take certain steps
to assist the wounded, sick, and shipwrecked. Thus, there is a duty to collect and
care for enemy wounded. They must be given the same access to medical treatment
as the State's own wounded and sick, priority between wounded persons being
determined solely by considerations of medical need and not by nationality,
allegiance, or status. 55
Medical transports, hospitals, and dressing stations used by the enemy's armed
forces are not to be attacked (a protection extended to civilian medical facilities by the
Fourth Convention and Additional Protocol I) unless they forfeit their protection in
one of the ways set out in the Convention. Even then, there is an obligation to issue a
warning before attacking them, except in the case of medical aircraft. Such units
should be marked with the protective emblems of the Geneva Conventions (the Red
Cross or Red Crescent) which there is a strict obligation to respect. 56 Contrary to
popular belief, these are not simply medical emblems which may be affixed to any-
thing connected with the provision of medical services from a hospital ship to a
school first-aid box. The use of the emblems is restricted to the International Com-
mittee of the Red Cross, the medical services of the armed forces, and other medical
bodies (such as national Red Cross societies) expressly authorized by the military
authorities to use the emblems.
Medical personnel are also entitled to protection, so long as they are not used to
commit, outside their humanitarian duties, acts harmful to the enemy. Medical per-
sonnel are entitled to carry arms for their own defence and that of the wounded in
their care. Reprisals against the wounded, sick, shipwrecked, or members of medical
units are prohibited.
55 Gel and II, Article 12.
56 The Conventions also refer to the Red Lion and Sun, an emblem once used by Iran but now obsolete.
812 CHRISTOPHER GREENWOOD
C. CIVILIANS
We. have already seen that the law on targeting contains a number of principles
desIgned to protect the civilian population from the effects of combat. In addition,
the Fourth Geneva Convention lays down detailed rules for the protection of two
categories of civilians in the power of an enemy State: civilians in the territory of
an enemy State and the civilian population of occupied territory. Unlike the other
Geneva Conventions, the Fourth Convention was an innovation in 1949, adopted
because the Second World War had highlighted the inadequate nature of existing
rules for the protection of civilians.
The Fourth Convention was designed to protect the nationals of one belligerent
who found themselves in the power of an enemy belligerent. It does not apply to:
nationals of a neutral State who find themselves in the territory of a belligerent State ...
while the State of which they are nationals has normal diplomatic representation in the State
in whose hands they are. 57
Neutral citizens in occupied territory, however, are covered by the Convention (Pictet,
1958, pp 48-90). The result is that those British citizens who were in Kuwait when
Iraq invaded in 1990 were protected by the Convention but those who found them-
selves trapped in Iraq itself were probably not covered, since the United Kingdom was
not, at that stage, a party to the conflict between Iraq and Kuwait and continued to
have diplomatic relations with Iraq, although it may be questioned whether those
relations could be said to have been 'normal'.
Civilians in the territory of an enemy State are entitled to protection from ill-
treatment of any kind. They should normally be allowed to leave the territory but may
be refused permission to leave if their departure would be contrary to the national
interests of the State. They may be interned only if the security of the State in whose
hands they are makes this absolutely necessary. 58 If they are interned, they are entitled
to a standard of treatment broadly comparable with that required for paws. In
particular, like paws, they should not be held in a prison but in a separate camp, as
they have neither been accused nor convicted of any crime. The wholesale detention
of members of ethnic groups in the Yugoslav conflicts clearly violated the Fourth
Convention, as did the conditions in which these detainees were held. In the Kuwait
conflict, problems of a different kind arose in the case of Iraqi nationals held in the
United Kingdom. The authority for detaining them under United Kingdom law was
the Immigration Act 1971 but their eNtitlement to be treated in accordance with the
Fourth Convention (or, in some cases as paws under the Third Convention) meant
that some of the normal practices followed in respect of persons detained under the
Immigration Act were not permissible in their case (Hampson, 1991).
Civilians.in occupied territory are subject to a different body of rules, although they
are also entItled to protection from ill-treatment of any kind and, if interned, must be
57 GCIV, Article 4(2).
58 GCrv; Article 42
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 8 13
held in" conditions which meet the standards of the Fourth Convention. The Conven-
tion prohibits the deportation of civilians from the occupied territory to the territory
of the occupying State or to any other State, irrespective of motive. 59 The civilian
population must not be subjected to reprisals or collective punishments60 and mem-
bers of that population may only be sentenced after a properly conducted trial
(although internment without trial is permitted).
These provisions of the Fourth Convention form part of a wider body of rules
(many of them derived from the Hague Regulations, 1907, but today forming part
of customary international law) dealing with occupied territory. Space does not
permit a detailed analysis of these rules, which have been the subject of much contro-
versy, particularly in relation to Israel's occupation of Arab territories since 1967 (see
Playfair, 1992). Four features of the law of belligerent occupation should, however, be
noted.
First, the law of belligerent occupation is not dependent on the precise legal status
of territory prior to its occupation but applies whenever territory is in fact seized
by the armed forces of one State during a conflict with another, even where the
State seizing the territory asserts that it has a better claim to the territory in question
than the State which it has ousted. Thus, Israel's denial that the West Bank and
Gaza Strip were subject to the law of belligerent occupation on the ground that
Jordan and Egypt (respectively) had no valid claim to those territories prior to the
1967 conflict has been universally rejected. Similarly, most States treated Argentina's
ten-week presence on the Falkland Islands in 1982 as a case of occupation irrespective
of whether they sympathized with Argentina's claim to title over the islands. This
principle has not, however, always been consistently applied by the international
community; thus, Turkey's military presence in northern Cyprus, which results
from the 1974 conflict between the two States, is not always characterized as a case of
occupation.
Secondly, no attempt by an occupying State to annex or change the status of
occupied territory affects the application of the Fourth Convention or the other rules
on belligerent occupation. Those rules thus continued to apply in Kuwait, notwith-
standing Iraq's purported annexation of the Emirate shortly after the invasion. 61 A
more difficult case is that of the West Bank and Gaza Strip since Israel handed control
of parts of them to the Palestine AuthoritY after 1994. The Palestine Authority plainly
cannot be seen as a belligerent occupant but the territories probably remain occupied
to the extent that Israel continues to exercise control over them.
Thirdly, Article 43 of the Hague Regulations requires the occupying power, 'unless
absolutely prevented', to respect the laws and customs in force in the territory at
the commencement of the occupation. While this formula still allows the occupying
59 GCrv; Article 49(1).
60 Article 33.
61 SC Res 662,670, and 674. The Security Council has taken the same position with regard to Israel's
annexation of East Jerusalem and the Golan Heights.
814 CHRISTOPHER GREENWOOD
power a very broad measure of discretion, it prohibits wholesale change of the laws
already in force unless those laws are themselves flagrantly contrary to international
law (as was the case, for example, with Nazi legislation in the territories occupied by
the allies from the start of 1945).
Finally, the Hague regulations embody a complicated series of rules, which now
have the status of customary international law, regarding the treatment of property
in occupied territory. While public property generally passes to the occupant, either
absolutely or by way of a right of usufruct (literally a right to use the fruits of the
property without consuming the property itself), the right to seize or requisition
private property is more limited. 62 Non-military private property may be requisitioned
only for the needs of the army of occupation and it is unlawful for an occupant
to strip the property of occupied territory for the benefit of the occupant's own
people or economy. The history of the twentieth century suggests this rule has been
honoured more in the breach than the observance.
VII. HOW MUCH IF ANY OF THIS LAW APPLIES
IN CIVIL WAR?
The rules discussed so far apply expressly only to international armed conflicts, yet
a majority of the war casualties since 1945 have occurred in civil wars and other
non-international armed conflicts. These conflicts are subject to a far more limited
regime of treaty provisions (see Moir, 2002). Common Article 3 of the Geneva
Conventions, which applies to any case of (armed conflict not of an international
character' occurring in the territory of one of the States party to the Conventions,
requires that the parties to such an internal conflict shall be required to apply (as a
minimum' the following provisions:
(1) Persons taking no part in the hostilities, including members of armed forces who
have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely, without
any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth,
or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in
any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading
treatment;
62 Hague Regulations, Articles 52 and 53.
. THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 815
(d) the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
These provisions, which have been described as (a convention in miniature', are
almost skeletal when compared with the rules applicable to international conflicts.
Thus, the single, terse sentence in Article 3(2) is meant to act as the equivalent of
two entire conventions (the First and Second Geneva Conventions) in dealing with
the sick and wounded. Although Common Article 3 goes on to encourage the parties
to an internal conflict to conclude special agreements to supplement the provisions of
the Article, such agreements are very rare.
Additional Protocol II to the Geneva Conventions set out to expand the provisions
applicable to non-international conflicts. Its fifteen substantive Articles contain more
detailed provisions on fundamental guarantees, treatment of the wounded and sick,
and the protection of the civilian population. However, it applies only to those States
which have become parties to it (which excludes many which have serious armed
conflicts occurring on their territory) and even then its field of application is more
restricted than that of Common Article 3. Whereas Common Article 3 applies to any
armed conflict occurring within a State, Article 1(1) of the Protocol provides that the
Protocol shall apply only to armed conflicts which:
... take place within the territory of [a State party to the Protocol] between its armed forces
and dissident armed forces or other organized armed groups which, under responsible
command, exercise such control over a part of its territory as to enable them to carry out
sustained and concerted military operations and to implement this Protocol.
Article 1(2) then adds:
This Protocol shall not apply to situations of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence and other acts of a similar nature, as -not being
armed conflicts.
Useful as it is, therefore, in fleshing out the bare bones of Common Article 3, Addi-
tional Protocol II has a very- restricted field of application, confined, in effect to civil
wars in which both sides control tracts of territory. It was, however, applied in the EI
Salvador conflict, in which the degree of territorial control exercised by the rebels fell
far short of that enjoyed by, for example, the Biafrans in the Nigerian civil war of
1967-70.
In effect, therefore, there is a scale of internal conflicts and disturbances, with
different bodies oflaw becoming applicable the higher up the scale one moves:
(1) at the lowest end of the scale come internal disturbances and acts of
terrorism which do not amount to an armed conflict (such as the fighting
in Northern Ireland before the cease-fire there). Such disturbances are not
subject to the laws of armed conflict at all, although the State (but not the
816 CHRISTOPHER GREENWOOD
rebels) will be subject to the provisions of any human rights treaties to which
the State is a party;
(2) once the fighting reaches the level at which it is described as an armed
conflict, both government and rebel forces are bound by Common Article 3
and the government will continue to be bound by any applicable human
rights treaties;
(3) if the rebels acquire sufficient control of territory to meet the requirements
of Additional Protocol II, the Protocol and Common Article 3 will apply to
both sides in the conflict. Again, the government will continue to be bound by
applicable human rights treaties; and
(4) finally, if another State intervenes on either side of the conflict, the conflict
becomes international and the full body of the Geneva Conventions and, if the
States concerned are parties, Additional Protocol I become applicable at least to
fighting involving the intervening State.
The problem is that it will frequently be very difficult to determine which point on
the scale has been reached and the State involved is likely to take a different view of
this question from that taken by outsiders. There may also be cases in which a conflict
contains both internal and international elements. The International Criminal Tri-
bunal for the Former Yugoslavia has held, eg, that the fighting in Bosnia-Herzegovina
involved both an international conflict (between Bosnia-Herzegovina and the Federal
Republic of Yugoslavia) and a non-international conflict between the Government
of Bosnia-Herzegovina and the Bosnian Serb forces. 63 Similarly, while the hostilities
between the United States and North Vietnam were undoubtedly an international
conflict, they existed in parallel with a conflict between South Vietnam and the Viet
Cong which was more difficult to characterize.
Developments in customary international humanitarian law during the 1990s
have ameliorated this problem. In its decision in Tadic 64 and later cases, the Inter-
national Criminal Tribunal for the Former Yugoslavia has identified a series of
customary law norms applicable in non-international armed conflicts. In doing
so it has at times taken a somewhat creative approach to the law and some of its
conclusions are not easy to justify by reference to the criteria for the determination
of rules of customary international law (Greeenwood, 1996). Nevertheless, these
decisions have to some ext~nt been reflected in the Statute of the International
Criminal Court65 and elsewhere (see Moir, 2002).
63 ProseCtltor v Tadic (Jurisdiction) (1995), 105 ILR 419 at 486-495; see also the later phase of this case at
(1999) 38 ILM 1518.
64 Ibid.
65 Article 8(2)(e).
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 817
VIII. HOW CAN THE LAW BE ENFORCED?
The most difficult question to answer about the laws of armed conflict is how States
can be brought to comply with them. There can be no denying that the enforcement
machinery of international law in general is comparatively weak and that it lacks most
of the features found in national law. There is no international police force and no
network of courts with compulsory jurisdiction. Moreover, it is probably true to say
that there is no area of international law in which the deficiencies of enforcement are
so apparent as the laws of armed conflict. That is not to say, however, that there are no
means of securing compliance with those laws. A State whose forces violate the laws of
armed conflict is responsible for the damage caused thereby and may be held liable to
compensate States and individuals who have suffered loss as a result. Although rarely
applied in practice, this principle has been upheld by the Security Council in the case
of Iraq. The Council has confirmed that Iraq is liable to compensate the victims of its
violations of international law, including breaches of the laws of armed conflict,
arising out of the invasion of Kuwait. 66 The Council has established a Compensation
Commission to apply this principle and a fund, to .be financed by a levy on Iraqi oil
sales, to ensure that the Commission's awards are paid.
A better known means of enforcement is the prosecution of individuals responsible
for violations of the laws of armed conflict as war criminals. Such prosecutions have
a long history, although the overwhelming majority which have taken place arose
out of the events of the Second World War. Although the best known, the Nuremberg
and Tokyo trials, were confined to the senior members of the German and
Japanese governments and high commands, over 2,000 trials took place in all and
the defendants ranged from the most senior officers and officials to private soldiers
and civilians. 67 An individual who violates any of the rules of the law of armed conflict
is guilty of a war crime if he has the necessary guilty knowledge. Some war crimes,
however, are subject to special provisions. Thus, violations of the more important
provisions of the Geneva Conventions and Additional Protocol I are known as 'grave
breaches' of those treaties. 68 Under the Conventions, any State has the jurisdiction to
try someone accused of a grave breach, irrespective of where the crime was committed
and whether the State exercising jurisdiction was a party to the armed conflict in
which it occurred. All States party to the Conventions have a duty to search for
persons alleged to have committed grave breaches and to bring them to justice.
Jurisdiction over other types of war crime is governed by customary international law
but is also universal, in that any State may exercise jurisdiction.
66 SC Res 674 and 687.
67 See 15 Law Reports of Trials of War Criminals, published for the United Nations War Crimes
Commission.
68 See GCI Article 50, GCII Article 51, GCm Article 130, GCIV Article 147, and Additional Protocol I
Article 85.
818 CHRISTOPHER GREENWOOD
More recently, the United Nations Security Council has established international
tribunals with jurisdiction to try (inter alia) charges of war crimes committed
in the former Yugoslavia and Rwanda. In addition, the International Criminal
Court, established by the 1998 Rome Statute, which had just become operational at
the time of going to press, has jurisdiction over war crimes (whether committed in
international or non-international conflicts) and grave breaches of the Geneva
Conventions. 69
One of the most controversial features of the law of war crimes is that the fact that a
defendant acted under superior orders is not a defence (although it may be a relevant
factor in mitigating sentence). This principle was not fully established until the
Second World War trials, when it was expressly written into the Charter of the Inter-
national Military Tribunal at Nuremberg. Prior to that the law had been uncertain,
both the British and American manuals of military law stating, until 1944, that a
serviceman did not commit a war crime if he merely carried out orders. The approach
adopted at Nuremberg has been criticized on the ground that it places the serviceman./
in an impossible position-if he obeys the order given, he commits a war crime, if he
disobeys he is liable to punishment for a breach of military discipline. In reality,
however, the military law of the United Kingdom (and many other States) not only
does not require a serviceman to carry out an illegal order, it positively forbids him
to do so. Moreover, if superior orders were allowed as a defence, the sanction of war
crimes prosecutions would be eroded almost to vanishing point in many cases-in
Nazi Germany, for example, almost every violation of the laws of armed conflict (such
as the shooting of hostages or captured allied commandos and the operation of
the concentration camps) was the implementation of a policy ordered at the very
highest level.
Liability for war crimes thus goes right through the military hierarchy. In the case
of the notorious 'Commando Order' which instructed the German armed forces to
refuse quarter to allied commandos and to execute those who were captured, tribunals
convicted German soldiers ranging from Field Marshal Keitel, who had issued the
order in Hitler's name, to private soldiers who manned firing squads. The commander
who gives an order to commit acts contrary to the laws of armed conflict will there-
fore be guilty of a war crime and is not absolved because he was not present when that
order was carried out, or because he was himself implementing an order received
from a superior. All those in the chain of command who decided upon and carried
out the order are potentially liable, although in one leading case a United States
military tribunal acquitted senior German staff officers who had issued illegal
orders on the ground that they had had no command authority of their own but were
merely transmitting orders given by the commanders on whose staffs they served. 70 In
addition, a commander has a duty to ensure that forces under his command behave
69 See generally Ch 23 above.
70 United States v List, 8 Law Reports of Trials of War Criminals, p 34 (trials of Generals Foertsch and von
Geitner); see also vol IS, p 76.
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 819
in accordance with the laws of armed conflict and may be convicted of a war crime
if he fails to restrain them from unlawful behaviour. 71
It is not a defence to a war crimes charge to argue that the defendant acted out of
military necessity. Many rules of the laws of armed conflict, such as that prohibiting
the use of methods and means of warfare likely to cause unnecessary suffering, them-
selves contain an allowance for military necessity. To say, in such a case, that the action
concerned was militarily necessary is not so much a defence as an argument that
the action was permitted by the rule of law in question. Where, however, a rule is cast
in absolute terms, such as the rules prohibiting the deliberate killing of prisoners or
the shipwrecked, considerations of military necessity do not justify a departure from
that rule. In one Second World War case, the commander of a German submarine was
convicted of shooting the survivors of a merchant ship sunk by the submarine. His
defence that this was necessary to cover his tracks and prevent allied aircraft from
detecting his submarine was rejected by the Judge Advocate in directing the Military
Court.72
It is often said that war crimes trials are a form of victors' justice and that those on
the winning side are never charged. It is true that there are very few cases in which
a State has described the charges it has brought against one of its own servicemen
as a war crime. However, that is because a State will invariably have jurisdiction to
try its own servicemen for crimes under the ordinary criminal law of that State, or
under its military law. Only when a State wishes to prosecute a foreign national
will it normally be necessary to invoke the law of war crimes in order to establish
jurisdiction. Thus, if a State prosecutes one of its own soldiers for the killing of POWs,
the case is likely to be one of murder,73 whereas if that State prosecutes an enemy
serviceman in respect of similar conduct, the charge would be a grave breach of the
Third Geneva Convention?4
In principle, therefore, the prospect that he might be prosecuted anywhere in the
world in respect of a violation of the laws of armed conflict should act as a serious
deterrent to the serviceman. In practice, however, prosecutions for war crimes have
been rare until very recently and there have been comparatively few cases in which a
State has charged its own servicemen with crimes under national law in respect of
conduct which would also have constituted a war crime. Although the possibility of
holding war crimes trials at the end of the Kuwait conflict was considered, nothing
came of it other than a few trials held in Kuwait. It must, therefore, be open to
question how far the law of war crimes operates as an effective inducement to comply
with the laws of armed conflict.
71 United States v Yamashita, 4 Law Reports of Trials of War Criminals, p L See also Additional Protocol I,
Article 86.
72 Case of Eck ('the Peleus case'), 1 Law Reports of Trials of War Criminals, p 1.
73 This was the case in the My Lai trials in the United States during the Vietnam War.
74 For an explanation of the war crimes jurisdiction of British military courts see Rogers, 1990. The War
Crimes Act 1991 has now made provision for the trial before civilian courts in the United Kingdom of charges
of murder and manslaughter contrary to the laws of war arising out of the Second World War.
 820 CHRISTOPHER GREENWOOD
A less orthodox method of enforcing the laws of armed conflict has traditionally
been recourse to belligerent reprisals (Kalshoven, 1971). A belligerent reprisal is an act
which would normally be a violation of the laws of armed conflict but which becomes
lawful because it is taken in response to a prior breach of the laws of armed conflict by
an enemy. Reprisals-or the threat of reprisals-have sometimes proved effective in
ensuring compliance with the law but they have a bad name because all too often
they have led to a vicious spiral of counter-reprisals. Today, the laws of armed conflict
prohibit most reprisals. The wounded, sick, shipwrecked, POWs, and civilians in
enemy territory or in occupied territory may not be the object of reprisals according
to the Geneva Conventions. 75 Additional Protocol I also prohibits reprisals against the
enemy's civilian population, civilian objects, and a number of other items.76 These
provisions, however, are controversial and are not generally regarded as part of
customary international law. Where reprisals may lawfully be taken, they must be
proportionate to the original violation and be taken as a last resort (following a
warning to the enemy to put an end to his violations of the law) in order to put an end
to violations by the other party, not as a form of revenge. For that reason, the decision
to take reprisals is always made at the highest levels of command and reprisals should
not be continued once the enemy's violations of the law have ceased.
In many respects the most important, if the least dramatic, means of ensuring
compliance with the laws of armed conflict is scrutiny by and pressure from third
parties. A State engaged in an armed conflict will often be heavily dependent upon
the goodwill of neutral States, which may well be put in jeopardy by allegations of
atrocities. Such allegations can also have a major effect upon public opinion in the
belligerent States themselves. Pressure of this kind operates, in a sense, outside the law
itself, since the law makes no express provision for it. The Geneva Conventions and
Additional Protocol I do, however, provide for certain formal mechanisms to monitor
compliance with the law.
Under the Conventions and the Protocol, a State which becomes engaged in
an armed conflict is encouraged to appoint another State as a 'protecting power'
to act on behalf of its nationals. The protecting power has rights of access to POW
and detention camps, the right to have its representatives present at trials of POWs
and civilians held by the enemy State, and to make representations to the enemy State
about compliance with the laws of armed conflict. 77 Although the protecting power
system worked well in some areas during the Second World War, it has been virtually
unused since 1945. 78 In many conflicts one side at least was unwilling to accept the
other's nominee as a protecting power and allow that power access to territory under
its control. Although Article 5 of the Additional Protocol attempted to overcome this
75 GCI Article 46, GCII Article 47, GCm Article 13, and GCIVArticle 33. See also Additional Protocol I,
Article 20.
76 Additional Protocol I, Articles 51(6), 52(1), 53(c), 54(4), 55(2), and 56(4).
77 See GCI, II, and III, Article 10 and GCIV Article II.
78 A rare exception was the Falklands conflict where Switzerland acted as protecting power for the UK and
. Brazil for Argentina.
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 821
problem by providing that the parties to a conflict have a duty to nominate pro-
tecting powers without delay, it still leaves a State a discretion whether or not to
accept the adversary's nomination of a protecting power and thus leaves the entire
system dependent upon the consent of the two sides. As conflicts like the Vietnam and
Iran-Iraq wars have shown, such consent is rarely forthcoming.
The comparative failure of the protecting power system has placed a very heavy
burden on the International Committee of the Red Cross. Under the Conventions
and the Protocol, where there is no protecting power, the parties to the conflict are
required to accept an offer by the ICRC (or another competent humanitarian
organization) to assume the humanitarian functions of the protecting power.79 Never-
theless, in practice the ICRe's access to prisoners and to occupied territories in such
cases has depended upon its ability to secure the acceptance of the State concerned.
In the Kuwait conflict, for example, Iraq consistently refused the ICRC access to
Kuwait or to places where POWs or civilians were being held. 80 Where the ICRC is
able to secure access, it works on the basis of strict criteria. For example, it insists on
unrestricted access to prisoners and to all parts of POW camps and detention centres
and upon private interviews with prisoners. The ICRC reports on these visits but its
reports are not made public. This confidentiality has helped to secure the ICRC access
in many cases where it would otherwise have been refused but it means that the ICRe
cannot be used to mobilize public opinion in putting pressure upon a recalcitrant
State. The action which the ICRC can take when it detects violations of the law is
usually limited to private persuasion, although it may make a general appeal to the
parties to comply with the law. s1 Within these limits, the ICRC has often been
remarkably successful and conditions where it is denied access have almost invariably
been worse than those in places it has been allowed to visit.
In recent years the United Nations has become increasingly involved in attempting
to secure compliance with the laws of armed conflict. During the Iran-Iraq War it
adopted a number of resolutions on the subject and its reports (which unlike those of
the ICRC are published) on conditions in POW camps seem to have led to some
improvements. More recently, in the Yugoslavia conflict, the Security Council has
taken a public position regarding conditions in detention camps and called for the
ICRC to be given full access to them.
Finally, Article 90 of the First Additional Protocol provides for the establishment of
an International Fact Finding Commission to inquire into alleged violations of the
Geneva Conventions and Protocols. While this Commission's jurisdiction is limited
and it has no power to impose any kind of penalty, the publicity which its findings
would have may prove a potent weapon.
79 See GCI, II, and III, Article 10 and GCIV Article II.
80 ICRC, The Gulf 1990-91, P 10.
81 This was done on several occasions during the Iran-Iraq War. See also 'Action by the ICRC in the event
of Breaches of International Humanitarian Law' (1981) Int Review of the Red Cross, p 1.
822 CHRISTOPHER GREENWOOD
REFERENCES
BOISSON de CHAZOURNES, L and SANDS, P
(eds) (1999), International Law, the Inter-
national Court of Justice and Nuclear
Weapons (Cambridge: Cambridge Uni-
versity Press).
BOTHE, M, P ARTSCH K, and SOLF, W
(1982), New Rules for Victims of Armed
Conflicts (The Hague: Martinus Nijhoff).
DELISSEN, A and TANJA, G (eds) (1991),
Humanitarian Law of Armed Conflict:
Challenges Ahead (Dordrecht: Martinus
Nijhoff).
GREENWOOD, C (1987), 'The Concept of
War in Modern International Law', 36
ICLQ283.
(1991), 'Customary Law Status of the
1977 Additional Protocols', in Delissen
and Tanja (eds), p 93.
- - (1996), 'International Humanitarian
Law and the Tadic Case', 7 BJIL 265.
- - (2002), 'International Law and the
"War against Terrorism",' 78 International
Affairs 301.
HAMPSON, F (1991), 'The Geneva Conven-
tions and the Detention of Civilians
and Alleged Prisoners of War', Public Law
507.
House of Commons Defence Committee
(1991), Preliminary Lessons of Operation
Granby, Tenth Report, HC 1990-91 No
2871I (London: HMSO).
KALSHOVEN, F (1971), Belligerent Reprisals
(Leiden: Nijhoff).
- - (1978), 'The Reaffirmation and Devel-
opment of International Humanitarian
Law', 9 Neth YElL 107.
LAUTERPACHT, H (1952), 'The Problem
of Revision of the Law of War', 29 BYIL
382.
LEVIE, HS (1979), Prisoners of War in Inter-
THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) 823
US Final Report to Congress (1992), United States (1989), Commander's Hand-
Conduct of the Persian Gulf War book on the Law of Naval Operations
(Washington, DC: Department of (NWP 9) (Washington, DC: Office of the
Defense). Chief of Naval Operations).
national Conflict vol 59 (Newport, RI: US
Naval War College International Law
Studies).
LOWE, AV (1996), 'Shock Verdict: Nuclear
War Mayor May Not be Unlawful', 55
FURTHER READING
CLJ 415.
MAURICE, J (1883), Hostilities without
The literature on this subject is extensive. The following works, however, are particularly
Declaration of War (London: HMSO).
recommended.
Middle East Watch (1991), Unnecessary
Deaths (New York: Human Rights War (Cases and Materials) (Geneva:
BEST, G (1980), Humanity in Warfare
Watch). (Oxford: Oxford University Press). ICRC).
MOIR, L (2002), The Law of Internal Armed - - (1994), War and Law Since 1945 MACOUBREY, H and WHITE, ND (1992),
Conflicts (Cambridge: Cambridge International Law and Armed Conflict
(Oxford: Oxford University Press).
University Press). (Aldershot: Dartmouth).
FLECK, D (ed.) (1995), The Handbook
PICTET, J (ed.) (1958), Commentary on the of Humanitarian Law in Armed MOIR, L (2002). The Law of Internal Armed
Conflict (Cambridge: Cambridge Uni-
IV Geneva Convention Relative to the Conflicts (Oxford: Oxford University
Protection of Civilian Persons in Time of Press). versity Press).
War (Geneva: ICRC). ROGERS, APV (1996), Law on the Battlefield
GREEN, LC (2000), The Contemporary Law
(Manchester: Manchester University
PILLOUD, C, et al. (1987), Commentary on the of Armed Conflict, 2nd edn (Manchester:
Additional Protocols of 1977 to the Geneva Manchester University Press). . Press).
Convention of 1949 (Geneva: ICRCI United Kingdom (1958), British Manual of
INTERNATIONAL COMMITTEE OF THE RED
Dordrecht: Martinus Nijhoff). Military Law, Part III (London: HMSO).
CROSS (1999), Can Law Protect in
PLAYFAIR, E (ed.) (1989), International
Law and the Administration of Occupied
Territories (Oxford: Clarendon Press).
ROBERTS, A and GUELFF, R (2000), Docu-
ments on the Laws of War, 3rd edn
(Oxford: Oxford University Press).
ROGERS, A (1982), 'Conduct of Combat
and Risks Run by the Civilian Population',
1982 Military Law and Law of War
Review.
- - (1990), 'War Crimes Trials under the
Royal Warrant: British Practice 1945-49',
39 ICLQ780.
THOMAS, A and DUNCAN, J (1999), Anno-
tated Supplement to the Commander's
Handbook on the Law ofNaval Operations,
vol 73 (Newport, RI: US Naval War
College International Law Studies).

abduction of alleged offenders
352
Abi-Saab, G 522-3
accession to treaties 179
acquisition of territory 36
act of state 358,376-7
admissibility 473-500
bases of diplomatic protection
477-88
application of nationality
rule 485-8
corporate nationality
483-5
establishing nationality for
purposes of 479-83
nationality as basis of legal
interest in indirect
claims 477-9
cases involving plurality of
states 488-93
exhaustion of local remedies
and 493-9
legal interest as pre-requisite
474-7
modalities of establishing of
legal interest 476-7
rationale of international
law rules on locus standi
475-6
advisory proceedings in
International Court of
Justice (ICn 582-4
Afghanistan 27,235,599,603-5,
793
Taliban regime 260
African Charter on Human and
Peoples Rights 160,
161-2
African Commission on Human
Rights 318
African Union (Organization of
African Unity) 214,254,
547,548
Agenda 21 167, 661
aggression as international
crime 745-7
Agreement on Trade Related
Intellectual Property
Rights (TRIPS)
704-5
airspace 336
INDEX
Albania
mining of Corfu channel
459-60,468
wartime gold 581
Allott, P 79-83, 302, 320
American. Convention on Human
Rights 160
Amnesty International 12,271
ancient world, international law
in 32-4
Angola 598
Annan, K 321
Antarctica 221, 658
Antarctic Treaty (1959) 169,
658
Commission for the
Conservation of
Antarctic Marine
Resources (CCAMLR)
652,684
jurisdiction in 343
anticipatory self-defence 601
anti-formalism 98, 100-3
Aquinas, T 34
arbitration 45, 539-41
archipelagos
baselines 628-9
sea lane passage 637
archives of international
organizations 289
Argentina, invasion of
Falklands by 516,592,
606,813
Aristotle 33,35
Asian values 90
assets freeze 16
asylum
asylum-seekers 331
diplomatic 129
atmosphere, protection of
670-3
climate change 672-3
ozone depletion 671-2
transboundary air pollution
670-1
authors 65-6,320-1
Badinter Commission 217,221,
229, 230, 255, 257
Bangladesh 226, 596
banking sector
assets freeze and 16
immunity of state bank
accounts 373,374-5
bankruptcy 130-1
barristers, international law and
11-14
Bartolo of Sassoferrato 35-6
Basel Convention on the
Transboundary
Movement of Hazardous
Wastes and their
Disposal 675
baselines 626-9
Baty, T 206
bays 627-8
Belgium, independence of 49
Belize, Guatemalan claim on
241
Bentham, J 38
Berlin Conference (1884-85)
43
Berman,F 26
Berman,N 62
Biafra 239, 240
bilateral investment treaties
712-14
Biological Diversity Convention
164, 166, 658, 659, 660,
661,663,665,666,
682-3
Biosafety Protocol 164
biotechnology 676-7
blocking statutes 349-50
Bluntschli, JK 44
Bonfils,H 44
Bonn Convention on Migratory
Species of Wild Animals
169,317,681-2
Bosnia 26, 235, 259
recognition of 255, 258
UN peacekeeping in 612-13
boundary disputes 13-14,17,
222
Bowett, DW 520
BrahimiReport 614
Brezhnev doctrine 75
Brierly, J 95, 506, 522
broadcasting from high seas 640
Brownlie, I 60,211,230,237,238,
248
Brussels Conference (1890) 43

Brussels Convention for the
Unification of Certain
Rules concerning the
Immunities of
Government Vessels 361
Bull, H 103-4
bureancracies 38
Bnrma see Myanmar (Burma)
Cambodia 26, 235, 260, 596, 599
cameralism 38
Canada
fisheries 650
terrorism in 751
capacity to enter into
international relations
229-30
capital punishment 193
Carnegie Endowment for
International Peace 21,
22
Carr,EH 92
Cartagena Protocol on Living
Modified Organisms
676-7
cartels 339
Carthage, ancient 32
Cassese, A 511,517,518,523
Chaco Commission 548
Charlesworth, H 66
Charney, J 63
Chechnya 256
children's rights 317,781,782
Chile
military coup in 227
State immunity and 8-10
China
Boxer Rebellion 46
Japanese occupation of
Manchuria 51
recognition of 254
Taiwan 219,230,231,592
use of force and 592
Christiaruty 34, 108
Cicero 33
civil war 51,598-9,814-16
claims
admissibility issues 473-500
bases of diplomatic
protection 477-88
cases involving plurality of
states 488-93
exhaustion oflocal
remedies and 493-9
legal interest as pre-
requisite 474-7
INDEX
by individual in international
law 307-14
bringing international
claims 307-9
economic1aw 311-14
human rights law 309-11
immunities 314
class system, socialism and 72, 73
climate change 672-3
Framework Convention on
Climate Change 660,
661,662,663,665,666,
672-3
Cobden-Chevalier Treaty (1860)
45
codification of international law
51
coercion
economic 518-21,592
invalidity of treaties and 181
coffee 709
Cold War 7, 21, 55
legal structure of 67-78
comparison of New Haven
and Soviet approaches
76-8
New Haven school 67,
68-72
Soviet theory 67,72-5
collective self-defence 605-6
Collins, L 16
Colombia 599
colonialism 43,213
see also decolonization
commercial law 15
Commission for the
Conservation of
Antarctic Marine
Resources (CCAMLR)
652,684
Commission on Sustainable
Development 167
Commission on the Limits of the
Continental Shelf 643
commodity agreements 708-10
communication 45
broadcasting from high seas
640
freedom of 290
community of states 146
Comte, A 41,45
Concert of Europe 49
conciliation 537-9
concurrent jurisdiction 333, 349
Conference of American States
547-8
INDEX 827
conflicts Convention on Civil Liability for Convention on the Protection of Yugoslavia (ICTY) 155,
conflicting decisions 18 Damage Resulting from the Marine Environment 407,447,727-30,816
see also dispute settlement; Activities Dangerous for of the Baltic Sea mixed tribunals 734-5
force; war the Environment 659 (Helsinki 1992) 182 war crimes tribunals 52,
Congo, Democratic Republic of Convention on Civil Liability for Convention on the Protection of 447,722,736,791,818
223-4,599 Oil Pollution Damage the Marine Environment see also International
immunities of ministers of 669 of the North-east Criminal Court
state 133, 154,314, Convention on Environmental Atlantic 668 dispute settlement and 543-4
400-1,408,410 Assessment in a Convention on the Rights of the human rights and 769-70
Congress of Vienna (1814-15) Transboundary Context Child 317 European Court of Human
48,270 660 Convention on the Safety of UN Rights 26,95,99,194,
consent 151 Convention on Fishing and and Associated 543,775
to be bound by treaties Conservation of the Personnel 792 Inter-American Court of
178-80 Living Resources of the Convention on Wetlands of Human Rights 194, 543
as defence to breach of High Seas (CFC) 652 International Permanent Court of
international law Convention on Long-Range Importance (Ramsar International Justice 51,
462-3 Trarisboundary Air Convention) 678-9 120,213,560
conservation Pollution 659, 660, Convention Relating to see also International Court of
endangered species 164, 664-5,671 Intervention on the High Justice (ICn
680-1 Convention on Special Missions Seas in Cases of Oil Crawford, J 223-4,225,231,233,
of marine living resources 388,402-3 Pollution Casualties 240,516
683-4 Convention on the Conservation 670 Crimean War 44
of nature 677-83 of Antarctic Marine conventions as sources of criminal law 149-50,721-54
constitutive theory 67 Living Resources 661 international law 121-4 categories of international
recognition and 249-50 Convention on the Conservation Cooper, R 260 crimes 738-54
consular relations of Migratory Species of corporations 300, 313 aggression 745-7
immunity of 397-8 Wild Animals 169,317, international law and 12 crimes against humanity
Vienna Convention on 681-2 international responsibility 154,722,740-2
Consular Relations 388, Convention on the Establishment 447-8 genocide 722, 742-4
397-8,432 of an International Fund nationality of 340 piracy 343,447,639
Contadora process 553 for Compensation for diplomatic protection and slavery 43, 160, 640-1
contiguous zone 337,632 Oil Pollution Damage 483-5 war crimes 7,154,739-40
continental shelf 123, 126, 669 shareholders' protection see also terrorism; torture
642-3 Convention on the Law of the 130-1,140,486-7 general features 722-6
contract, limitations on freedom Sea 140, 166,284,533, corruption, invalidity of treaties human rights and 723-4
of 151 538, 543, 623-54, 658, and 181 individual criminal
Convention against Torture 317, 667-8 Costa Rica, Tinoco arbitration responsibility in
419,749 Convention on the Prevention and 238 international law 735-8
Convention Concerning the and Punishment of Council of Europe, jurisdiction international criminal
Protection of the World Crimes against and 331 tribunals 726-35
Cultural and Natural Internationally Protected countermeasures 508-18 International Criminal
Heritage 659, 679-80 Persons 388 as defence to breach of Tribunal for Rwanda
Convention for the Protection of Convention on the Prevention international law 464 (ICTR) 407,447,727-30
the Environment of the and Punishment of the definition 508-10 International Criminal
North-East Atlantic 665 Crime of Genocide 91, limitations on 512-14 Tribunal for the Former
Convention on Access to 191-2,420,447,742-4 reprisals and retorsion 510-12 Yugoslavia (ICTY) 155,
Information, Public Convention on the Prevention of third states and 514-18 407,447,727-30,816
Participation in Pollution from Ships see also economic sanctions mixed tribunals 734-5
Environmental Decision- 665, 668, 669 courts and tribunals 12, 13, war crimes tribunals 52,
Making, and Access to Convention on the Privileges and 17-18,416-20 447,722,736,791,818
Justice in Environmental Immunities of the criminal 726-35 see also International
Matters 660 Specialized Agencies 388 International Criminal Criminal Court
Convention on Biological Convention on the Privileges and Tribunal for Rwanda jurisdiction and 351
Diversity 164,166,658, Immunities of the (ICTR) 407,447,727-30 notion of international
659,660,661, 663, 665, United Nations (1946) International Criminal criminal law 721-2
666,682-3 288,388 Tribunal for the Former origins 722-3
828
criminal law, cont.
public international law and
724-6
state responsibility and 452
war crimes 7, 154,739-40,
817-21
Croatia 216,217
recognition of 255,257,258
Cuba 615
assets of Central Bank 16
US sanctions against 350,519,
520,521
cultural obstacles to human
rights 780-4
cultural rights 162
customary international law
40-1,168
conflicting national law and
428-9
environmental law and 664
-immunities of international
organizations and 287
local/special 128-9
as source of international law
124-30
divergent practice 127-30
relationship with treaties
134-6 -
two-element theory 125-7
Vienna Convention on the Law
of Treaties and 135,137,
176
customs and excise 337,348
Cyprus
Northern Cyprus 230,231
recognition of governments
246
Turkish invasion of 226
Czechoslovakia 599
dispute with Hungary 196-7,
198,199
dissolution of 217
Damrosch, LF 77
Dayton Accords 216,259
death pen;ilty 193
debts 46,47
Declaration of Paris (1856) 44
Declaration of St Petersburg
(1868) 44, 803
decolonization 21,124,214,234,
315
use of force and 594, 792-3
uti possidetis principle and
214-17
deep seabed 646-7
INDEX
democracy 81,783
New Haven school and 67,
68-72
use of force and 595
Denmark, continental shelf
delimitation 123
Denza, E 389, 392
diplomatic asylum 129
diplomatic methods of dispute
settlement 531-9
conciliation 537-9
inquiry 535-7
mediation 533-6
negotiation 531-3
diplomatic protection
application of nationality rule
485-8
claims against third states
486
continuous nationality
485
exclusion of nationality
rule 488
multiple nationality 485-6
shareholding interests
486-7
corporate nationality 483-5
establishing nationality for
purposes of 479-83
natural persons 479-80
requirement of genuine
link 480-2
nationality as basis of legal
interest in indirect
claims 477-9
diplomatic recognition 240
diplomatic relations
immunity of 388-9, 391-7
special missions 401-3
in middle ages 36
Vienna Convention on
Diplomatic Relations
135,388,391-6,399
discrimination, non-
discrimination right
160,162-3
dispute settlement 33,45, 529-54
diplomatic methods 531-9
conciliation 537-9
inquiry 535-7
mediation 533-6
negotiation 531-3
international organizations
and 547-53
regional organizations
547-8
United Nations 530,
548-52,553
value and limitations of
organizations 552-3
investment and 716-17
legal methods 539-46
arbitration 539-41
International Court of
Justice 541-3
other courts and tribunals
543-4
place of 544-6
World Trade Organization
(WTO) 18,544,705-7
distress as defence to breach of
international law 463-4
divergent practice, custom and
nsage 127-30
Dogger Bank incident 535-6
Dominican Republic 615
Drago,L 47
drugs 342, 352, 641, 730
dual nationality 340, 485-6
dualism 421
Dugard, J 251
dumping 668
Duxbury, N 67-8
East African Community (EAC)
537
East Timor 12,215,226,260,
492
economic growth and
development 53
sustainable development
164-5, 167, 660
economiclaw 689-718
finance law 691-700
IMF 691-4
regional development
banks 699
World Bank 695-9
individual claims in 311-14
international trade law
700-10
GATT 700
international commodity
agreements 708-10
WTO 700-8
investment law 710-17
bilateral investment treaties
712-14
definition of investment
711-12
dispute settlement
mechanisms 716-17
multilateral investment
guarantee agency
714-16
national investment
insurance schemes 714
regional economic integration
arrangements 717
economic relations 40
see also international trade
economic rights 162
economic sanctions 50,51,98,
350
coercion 518-21,592
definition of 522-4
limitations on 524-6
education 782
effects doctrine 338-9
Egypt, ancient 33
Eichmann, A 7,352-3
Elagab,OY 521
empiricism 70
employer organizations 318
endangered species 164,680-1
enforcement
economic coercion 518-21,
592
enforcement jurisdiction
351-3
environmental law 665-7
humanitarian law 817-21
self-help 505-8
see also countermeasures
environmental law 657-85
conservation of marine living
resources 683-4
conservation of nature
677-83
definition of' environment'
659
development of 659-62
enforcement 665-7
key environmental actors
662-3
meaning of 657-8
nuclear risks 674
other hazardous substances
and activities 674-7
protection of atmosphere
670-3
climate change 672-3
ozone depletion 671-2
transboundary air
pollution 670-1
protection of marine
environment 667-70
sources 663-5
INDEX
Environmental Modification
Treaty 805
equality of states 211-12,336
equity, international law and 140
erga omnes obligations 142,149,
489
countermeasures and 514-18
enforcement of 490-3
Eritrea 255
Estonia 216,229
Estrada doctrine 245, 246
Ethiopia, Italian invasion of 51
ethnic minorities 52
European Convention on Human
Rights 99,160,161,194,
310,432,439,534,790
European Convention on State
Immunity 361,362
European Court of Human
Rights 26,95,99,194,
543,775
European Social Charter 162
European Union 94,98,313,419,
430-1,547,663
sanctions against Argentina
516
Exclusive Economic Zone (EEZ)
337,644-6,651
Exclusive Fishing Zone (EFZ)
644
exhaustion oflocal remedies and
admissibility of claims
493-9
extradition 352
extraterritorial jurisdiction 8-10,
16,333,334-5, 342, 347,
350
facilitative approach 67
facts, states as 220-1
failed states 235
Falk,RA 68
Falkland Islands, Argentinean
invasion of 516,592,
606,813
fault, international responsibility
and 459-61
Fawcett, JES 225
Fiji 578
finance law 691-700
IMF 691-4
regional development banks
699
World Bank 695-9
finances of international
organizations 290
Financial Action Task Force
(FATF) 170
firms see corporations
Fish, S 97
fisheries 650-3
basic scheme of regulation
650
conservation of marine living
resources 683-4
Exclusive Fishing Zone (EFZ)
644
management 651-3
Fitzmaurice, G 130, 185
force 5'89-618
aggression as international
crime 745-7
creation of new states and
225-6
humanitarian intervention -
595-7
intervention and invitation
598-9
meaning of 592-3
prohibition of 591-7
self-defence 599-606
UN Charter and 589,590-1
Chapter VII provisions
607-10
prohibition of use of force
591-7
regional action under
Chapter VIII 614-17
self-defence 599-606
UN peacekeeping 610-14
see also terrorism; war
force majeure as defence to breach
of international law 463
forced labour 156
foreign ~inistry legal advisers
25-8
formalism
anti-formalism 98, 100-3
beyond instrumentalism and
formalism 105-7
legal formalism and
international justice
1l0-1l
production of an international
political community and
103-5
Foucault, M 65, 66
fragmentation 108-10
Framework Convention on
Climate Change 660,
661,662,663,665,666,
672-3

France
bilateral investment treaties
712
national law and international
law 424,432,434,435
nuclear weapons testing
139-40, 578, 666
Franck, TM 60,62,78,100,227
fraud, invalidity of treaties and
181
Funck-Brentano, T 43
gender equality 781,782
General Agreement on Tariffs and
Trade (GATT) 164,700,
701-3
General Agreement on Trade in
Services (GATS) 704
general principles of law, as
source of international
law 130-2
Geneva Convention on the
Continental Shelf
(1958) 123, 135
Geneva Conventions 122,160-1,
790, 792-802, 806,
809-21
genocide 722, 742-4
Convention on 91,191-2,420,
447,742-4
Gentili, A 36
Geras,N 106
Germany
bilateral investment treaties
712
continental shelf delimitation
123
division of 229-30
immunity of special missions
401
national law and international
law 423,434
reunification of 26,217
state immunity and 361
Global Environmental Facility
699
global warming see climate
change
globalization 45, 55, 208
gold standard 45
good faith principle 140
government
as criteria of statehood 222-9
illegal 224-6, 238
immunity of heads of
government 400-1
INDEX
immunity of ministers 133,
154,314,400-1,408,410
recognition of governments
242-7
Grant, TD 221
Greece
ancient 33
independence of 49
recognition of Macedonia and
258
reprisals against (1850) 46
Greenpeace 12,271,319,454
Grenada, US invasion of 602-3,
616
Grotius, H 37,42,108,624
Guatemala, claim on Belize 241
Guinea-Bissau, recognition of
239,240
Hague Conventions (1899 and
1907) 790, 794, 804,
813-14
Hague Peace Conferences (1899
and 1907) 21,44,47,
535
Haiti 526
US military intervention in
227
Hall, WE 220
harm,internationalresponsibility
and 460-1
Hart, HLA 62, 67
head of state, immunities of
8-10, 133, 156-7,314,
. 371-2,398-9
Heffter, AW 43
Hegel, GF 47
hegemony 108-10
Helsinki Accords (1975) 76, 169
heritage preservation 659,
679-80
Herodotus 32
Higgins, R 8,63,70,71,72,77-8,
79,219,302-3,440
high seas 637-41,652
hijacking 345, 348
Hillgruber, C 252-3
historicism 47-9
history of international law
31-56
ancient world 32-4
classical age (1600-1815)
37-41
middle ages 34-7
nineteenth century
(1815-1919) 41-9
historicist/Romantic
tradition 47-9
natural law remnants 46-7
positivist tradition 41-5
twentieth and twenty-first
centuries (1919- ) 50-5
after 1945 52-5
inter-war period 50-2
Hobbes, T 38
Hohfeld, W 304
Holy Alliance 49
Hong Kong 333
Honore de Bonet (or Bouvet)
36
hostages 344-5, 546
hot pursuit 639-40
human dignity, New Haven
school and 68,69,77
human rights issues 52, 90,
105-6, 757-85
characteristics of rights
772-84
cultural obstacles 780-4
hierarchy and conflicts of
160-3,166
individual rights 304-6,
309-11
international criminal law and
723-4
international organizations
and 759-72
pressure on delinquent
states 770-2
reasons for creation
759-61
treaty bodies 767-9
tribunals 769-70
United Nations 762-7,
769
jurisdiction 310
jus cogens and 155-6,159
non-state (private) actors
776-7
progressive realization of
777-80
Soviet Union and 76
treaties 767-9
reservations to 161,194-5
violations
pressure on delinquent
states 770-2
within single state 773-4
systemic nature of 774-5
war and 790-1
humanitarian intervention 49,
595-7
humanitarian law 789-821
application to civil war
814-16
enforcement 817-21
lawful targets and how they
may be attacked
797-802
limitations on weapons 802-8
protection for victims 809-14
civilians 812-14
prisoners of war 809-11
wounded and sick 811
when it applies 791-3
who is entitled to take part in
hostilities 794-7
humanity, crimes against 154,
722,740-2
Hungary, dispute with
Czechoslovakia 196-7,
198,199
Iceland, diplomatic methods of
dispute settlement and
537-8
idealism 80, 92
illegal governments 224-6, 238
immunities
claims by individual in
international law 314
international organizations
286-90, 404-6
scope of 287-90,406-11
sources of 286-7
officials of states 388-91
consular relations 397-8
diplomatic relations 388-9,
391-7
head of state 8-10,133,
156-7,314,371-2,398-9
heads of government 400-1
ministers 133,154,314,
400-1,408,410
other officials 403-4
scope of 406-11
special missions 401-3
remedies in case of abuse
396-7
states 8-10,358,359-76
definition of state for
purposes of 366
development in civil courts
and USA 361-2
development of common
law relating to 359-61
elements constituting plea
of state immunity 363-6
INDEX
exceptions to adjudication
jurisdiction 366-71
immunity from execution
371-6
origins 359
present day sources 362-3
waiver 365-6
impossibility of performance of
treaties 198
India
access to Portuguese enclaves
129,131
ancient 33
annexation of Goa 242
statehood of 213
indigenous peoples 316-17
individuals 299-322
claims 307-14
bringing international
claims 307-9
economic law 311-14
human rights law 309-11
immunities 314
definition of individual 300
human rights issues 304-6,
309-11
indigenous peoples 316-17
international responsibility
447,448
criminal responsibility
735-8
jurists 320-1
nationality of 479-80
non-governmental
organizations 317-20
responsibilities 306-7
rights 304-6
see also human rights issues
self-determination right
315-16
use of force to protect
nationals abroad 602-3
innocent passage 633-5
inquiry 535-7
insider trading 17
Institut de Droit International
43,108
instrumentalism 42-3,102
beyond instrumentalism and
formalism 105-7
production of an international
political community and
103-5
insurance, national investment
insurance schemes
714
intellectual property rights
704-5
Inter-American Commission on
Human Rights 155, 162
Inter-American Convention on
Human Rights 160, 169
Inter-American Court of Human
Rights 194,543
interdisciplinary studies 101
internal waters 630-1
International Atomic Energy
Agency (IAEA) 169,674
International Bank of
Reconstruction and
Development (IBRD)
695-7
International Centre for the
Settlement of Investment
Disputes 716-17
International Cocoa Agreement
709
International Coffee Agreement
709
International Committee of the
Red Cross (ICRC)
317-18,533,792,811,
821
international commodity
agreements 708-10
International Convention against
the Taking of Hostages
(1979) 344
International Convention for the
Regulation of Whaling
684
International Convention for the
Suppression of the
Financing of Terrorism
750-1
International Court of Justice
(ICJ) 11, 17, 18, 19,27,
52, 120,295, 559-87
advisory proceedings 582-4
assessment of 585-7
dispute settlement and 541-3
effect of decisions of the Court
579-81
history 560-1
interpretation and revision of
judgments 579
joinder of cases 576-7
judges 3-6, 562-3
jurisdiction 566-73
exercise of 571-2
optional clause system
569-71
 INDEX INDEX

International Court of relative normativity and powers of 282-6 General Agreement on Trade irregular forces 794-5 territorial principle 336-9
Justice, cont. 145-71 decision-making powers in Services (GATS) 704 Islam 33 treaty-based extensions of
special agreements and relevance of 11-14 283-5 international commodity island states see archipelagos jurisdiction 343-5
compromissory clauses sources of 62-3, 663-5 implied 282-3 agreements 708-10 Israel 222,345,601 universal principle 343
568-9 theoretical perspectives 59-83 ultra vires decisions 285-6 in middle ages 36-7 occupied territories 813 restraints on 357-83
structural limitations see also individual topics privileges and immunities post-1945 53 Italy, League of Nations and 50, act of state 358,376-7
566-8 International Law Association 43 286-90, 404-6 see also World Trade 51 arguments for and against
verification and International Maritime Office scope of 287-90,406-11 Organization (WTO) use of avoidance
admissibility 572-3 43 sources of 286-7 International Tribunal for the Jackson, RH 232, 233-4 techniques 380-1
parties 576 International Maritime reasons for creation 759-61 Law of the Sea 18,19,543 James,A 229 challenges to 381-3
procedure 564-5 Organization (IMO) recognition of states and International Tropical Timber Japan, occupation of comparison of avoidance
requests for indication of 634,665 250-4 Agreement 661, 709 Manchuria 51 techniques 378-80
provisional measures International Monetary Fund see also United Nations interpretation Jay Treaty (1794) 45,539 non-justiciability 358-9,
574-6 (IMF) 53,55,691-4 international responsibility constituent instruments of joinder of cases in International 377-8
structure and composition financial resources 694 445-70 international Court of Justice (ICI) see also immunities
562-4 loans facilities 693 admissibility and 473-500 organizations 278-82 576-7 seas and oceans 334,630-2
third states and 577-9 organizational structure bases of diplomatic principles of interpretation judges resources 642-7
International Covenant on Civil 692-3 protection 477-88 280-2 International Court ofJustice significance of principles of
and Political Rights purposes and activities cases involving plurality of who is empowered to (ICn 3-4,5, 562-3 330-1
(ICCPR) 160, 161, 691-2 states 488-93 interpret 278-9 judicial decisions and types of 332-3
195,215,315,432,767, special drawing rights 694 exhaustion oflocal International Court of Justice teachings as sources of juristic writers 320-1
779 international organizations remedies and 493-9 (ICn judgments 579 international law jus cogens (peremptory norms)
International Covenant on 269-96 legal interest as pre- treaties 185-90, 278-82 132-4 122, 137, 141-2
Economic, Social and common law of 271-2 requisite 474-7 interpretative declarations juridical state 232-6 assertion of 150-9
Cultural Rights definition 270-1 content of 465-8 . 195-6 jurisdiction 329-54 jus dispositivum 13 7
(ICESCR) 162,215,315, differences between 271 criminal responsibility 735-8 invalidity of treaties 180-1 doctrinal analysis of 331-3 jus sanguinis 340
779 dispute settlement and further development oflaw of investment enforcement jurisdiction jus soli 340
International Criminal Court 18, 547-53 470 international law of 710-17 351-3 justice 105-6
27,55,299,317,342,363, regional organizations invocation of 468-70 bilateral investment treaties extraterritorial 8-10, 16,333, ancient notions of 33
407,411,447,818 547-8 scope of 446-9 712-14 334-5,342,347,350 legal formalism and
drafting and adoption of United Nations 530, state responsibility 446, definition of investment human rights issues 310 international justice
statute 730-1 548-52,553 449-65 711-12 immunity of international 1l0-1l
human rights and 769 history and role of 270 attribution of conduct to dispute settlement organizations from
jurisdiction 731-3 human rights and 759-72 the state 454-8 mechanisms 716-17 288-9 Kant, I 61-2,94
International Criminal Tribunal pressure on delinquent breach of international multilateral investment International Court of Justice Kartashkin, V 74-5,76
for Rwanda (ICTR) 407, states 770-2 obligation of the state guarantee agency (ICI) 566-73 Kelsen, H 421
447,727-30 reasons for creation of 458-62 714-16 exercise of 571-2 Kennedy, D 66
International Criminal Tribunal organizations 759-61 classification and national investment optional clause system Kingsbury, B 208
for the Former treaty bodies 767-9 characterization 449-53 insurance schemes 714 569-71 Knop,K 106
Yugoslavia (ICIT) 155, tribunals 769-70 defences/excusesfor breach protection of 17 special agreements and Korean War 592,608-9,810-11
407,447,727-30,816 United Nations 762-7,769 462-5 shareholders' protection compromissory clauses Koskeuniemi, M 306
International Development international responsibility elements of 453-65 130-1, 140,486-7 568-9 Kosovo 26,27,55,217,257,258,
Association 698-9_ and 446-7 international or national Iran 601 structural limitations 260,516,590,595-7
International Finance interpretation of constituent law 449-50 prisoners of war in 810 566-8 Kreijen, G 234,235
Corporation 697-8 instruments 278-82 responses by injured state US sanctions against 350 verification and Kufour, D 254
International Fund for principles of interpretation and other states 468-70 Iran-US Claims Tribunal 17,485, admissibility 572-3 Kurdistan 222
Agricultural 280-2 typology of 450-3 540 International Criminal Court Kuwait, invasion of 226,246, 516,
Development 16 who is empowered to International Seabed Authority Iraq 27, 526, 798-9, 804 731-3 592,606,609,791,813,
International Labour interpret 278-9 (ISA) 647,652 attack on nuclear reactor 601 meaning of 329-30 817
Organization (lLO) 156, legal personality 272-8 international trade 700-10 invasion of Kuwait 226, 246, overlapping 349-51
162, 169~70, 284 consequences 274-5 endangered species 164, 516,592,606,609,791, prescriptive 333-51 labour, forced 156
international law domestic law 276-8 680-1 813,817 controversial bases 345-7 Laclau,E 105
history of 31-56 international law 272-5 free trade 40, 164 no-fly zones 595-6, 601 inadequacies of traditional landmines 317,790
litigation 15-20 relations with non-member General Agreement on Tariffs prisoners of war in 809,810, approach 347-51 Las Casas, B de 108
objectives of 89-111 states 275-6 and Trade (GATT) 164, 811 national'principle 339-42 Lasswell, Harold 67,68-72,76,
perspectives on 3-28 sources 273-4 700,701-3 sanctions against 98, 525 protective principle 342 77,219

Latvia 216,229
Lauder, R 18
Lauterpacht, E 8
Lauterpacht, H 7,245,250,519
Law of the Sea Convention 140,
166,284,533,538, 543,
623-54, 658, 667-8
League of Nations 50--2,92,213,
270,506,538, 561
leased territories 333
Lebanon 616
legal criteria of statehood
221-31
capacity to enter into
international relations
229-30
government 222-9
permanent population
221-2
territory 222
who decides 230--1
legal interest (locus standi) 13
nationality as basis oflegal
interest in indirect
claims 477-9
as pre-requisite to
admissibility of claims
474-7
modalities of establishing of
legal interest 476-7
rationale of international
law rules on locus standi
475-6
legal methods of dispute
settlement 539-46
arbitration 539-41
International Court of Justice
541-3
other courts and tribunals
543-4
legal personality 217-31
international 218-20,272-5
international organizations
272-8
consequences 274-5
domestic law 276-8
international law 272-5
relations with non-member
states 275-6
sources 273-4
statehood as 218-19,220--31
Leibnitz, G von 38
lex ferenda 118, 135
lex lata 118, 135
lex posterior derogat priori
principle 136,141
INDEX INDEX
lex specialis derogat generali Montreal Protocol on the nationality as basis oflegal Norway ozone depletion 97,671-2
principle 136, 137, 141, Protection of the Ozone interest in indirect diplomatic methods of dispute Montreal Protocol on the
146 Layer 97,164,538,666, claims 477-9 settlement and 537-8 Protection of the Ozone
liberation movements 11 667,672 native (indigenous) peoples territorial sea 129-30, 626-7 Layer 97, 164, 538, 666,
Liberia 517,553,617 Mtillerson, R 77 316-17 nuclear risks 674 667,672
Libya 603, 628 Multilateral Agreement on natural law nuclear weapons 126, 130, 155, Vienna Convention for the
assets freeze and 16 Investment (MAl) 714 in classical period 169 Protection of the Ozone
sanctions against 350, 525 Multilateral Investment (1600--1815) 38-40 possible illegality under Layer 671-2
life, right to 160 Guarantee Agency in middle ages 34-7 international law 428-9,
Lillich, RB 520 (MIGA) 714-16 in nineteenth century 806-8 Pact of Paris (1928) 28,50--1
Lithuania 216, 229 Murphy, S 228 (1815-1919) 46-7 testing 139-40, 578, 666 pacta sunt servanda principle
litigation, international 15-20 Myanmar (Burma) 511-12 naturalization 340 119,121-2,146-7,183-4
Lockerbie bombing 331,336,337 forced labour 156 Nauru 577 objective territorial jurisdiction Panama
locus standi see legal interest necessity 338 Canal Zone 333
(locus standi) Namibia 226 as defence to breach of objectives of international law US military intervention in
London (Dumping) Convention narcotics 342,352,641,730 international law 463-4 89-111 227
659,660,668 national investment insurance doctrine of 40, 46 anti-formalism and 100--3 Paris Convention on Third Party
Lorimer, J 47- schemes 714 self-defence and 600 beyond instrumentalism and Liability in the Field of
national law negotiation 531-3 formalism 105-7 Nuclear Energy 674
McDougal, M 67,68-72, 76, 77, exhaustion of local remedies Netherlands converging interests 91-4 passive personality principle of
219 and admissibility of continental shelf delimitation between hegemony and jurisdiction 345, 346
Macedonia, recognition of 257, claims 493-9 123 fragmentation 108-10 peace 90, 99, 105-6, 107
258 immunities of international national law and international instrumentalism, formalism Peace of Westphalia (1648) 38,
McNair, AD 506 organizations and 287 law 422,434 and production of 90,210
Malley, E 65, 66 international law and 415-40 neutrality 40,45,51,812 international political peacekeeping by United Nations
Man, Isle of 17 approach of international New Haven school 67,68-72,219 community 103-5 590,610--14,792
Mancini, P 47,48 courts and tribunals comparison with Soviet legal formalism and Permanent Court of Arbitration
Mann,FA 16 416-20 theory 76-8 international justice 560
Martens, GF de 43 decisions of national courts New StreamlNew Approaches in 110--11 Permanent Court of
Marxist-Leninist (Soviet) theory as source of international International Law 79 paradox of 89-91 International Justice 51,
of international law 67, law 133 new world order 78-82,726-7 pragmatism and 97-100 120, 213, 560
72-5 national courts and 7-10, Nicaragua 593, 598, 605-6 significance of statehood persistent objector 129-30
comparison with New Haven 12-14,420--1,428-39 Nigeria, Biafran secession 239, 94-6 personality see legal personality
school 76-8 national law causes breach 240 oceans see seas and oceans Peru, diplomatic asylum and
mediation 533-6 of international law Nijman, J 219 oil pollution 669,670 129
Mesopotamia 33 417-19 non liquet 130 Oil Pollution Preparedness and Phillimore, R 43
Mexico 46 national parliaments and non-discrimination right 160, Response Convention Pinochet,A 8-10,156-7,227
jurisdiction 346 420--1 162-3 670 piracy 343,447,639
recognition of governments problems arising in national non-governmental organizations opinio juris sive necessitatis pluralism, positivism and 42
and 245 courts 428-39 (NGOs) 11-12,300, 125-6, 128, 168, 169 Pope, J 15
migration 45 spectrum of constitutional 317-20 Oppenheim, L 250--2 popular sovereignty 227-8
military property 373 rules 422-8 environmental law and 662 Organization for Economic population as criteria of
ministers of state, immunities of restraints on jurisdiction of non-justiciability 358-9, 377-8 Cooperation and statehood 221-2
133,154,314,400--1,408, national courts 357-83 Nordic Environmental Protection Development (OECD) Portugal 108
410 national principle of prescriptive Convention 667 674,690 positivism 41-5,64,220
mistake 125 jurisdiction 339-42 norms, hierarchy of see relative Organization for Security and Posner, RA 67
invalidity of treaties and 180--1 nationalism 48 normativity Cooperation in Europe pragmatism 97-100
monetary law 16 nationality 340--1,416-17 North American Free Trade 169 pre-emptive self-defence 601
monism 421 corporations 340, 483-5 Agreement (NAFTA) Organization of African Unity premature recognition 239
Montevideo Convention on the diplomatic protection and 165 214,254,547,548 prescriptive jurisdiction 333-51
Rights and Duties of application of nationality North Atlantic Treaty Organization of American States controversial bases 345-7
States 220--1,222 rule 485-8 Organization (NATO) (OAS) 615 inadequacies of traditional
Montreal Convention for the corporate nationality 604,605 Organization of Petroleum approach 347-51
Suppression of Unlawful 483-5 Northwest Atlantic Fisheries Exporting Countries national principle 339-42
Acts against the Safety of establishing nationality for Organization (NAFO) (OPEC) 710 protective principle 342
Civil Aviation 343-4 purposes of 479-83 652 overlapping jurisdiction 349-51 territorial principle 336-9

prescriptive jurisdiction, cont.
treaty-based extensions of
jurisdiction 343-5
universal principle 343
prisoners of war 794,
809-11
private international law
15-16
property
intellectual property rights
704-5
iriternational organizations
289
~ state immunity 372-6
proportionality, self-defence and
600
protective principle of
prescriptive jurisdiction
342
Proudhon, PJ 97
public interest, enforcement of
erga omnes obligations
and 490-3
Pufendorf, S 38, 40
Quintuple Alliance 48
ratification of treaties 179
rationalism 38
realism 69-70, 77, 92
recognition of states 236-60
constituting states 259-60
declaratory/constitutive
debate 248-50
international organizations
and 250-4
legal consequences 238-41,
247-8
legal nature of recognition
238-41
non-recognition 241-2
recognition of governments
242-7
Soviet Union and Yugoslavia
examples 254-9
Red Cross (ICRC) 317-18,533,
792,811,821
refugees 52, 157
regime conflict 164-6
regional economic integration
arrangements 717
North American Free Trade
Agreement (NAFTA)
165
see also European Union
Reisman, M 64, 243
INDEX
relative normativity 145-71
assertion of peremptory
norms 150-9
concept of 145-50
hierarchy among conflicting
norms and procedures
159-66
hierarchy among regimes
164-6
hierarchy among treaties
governing same topic
163-4
hierarchy within a single
treaty 160-3
soft law 146, 148, 166-70
reprisals 36,46,510-12,820
res inter alios acta 122
reservations to treaties 191-6
resistance movements 795
responsibility see international
responsibility
retorsion 510-12
retroactive legislation 160
revolutions 49,246
rights
children's rights 317,781,782
cultural rights 162
economic rights 162
individuals 304-6
intellectual property rights
704-5
International Covenant on
Civil and Political Rights
(ICCPR) 160, 161, 195,
215,315,432,767,779
International Covenant on
Economic, Social and
Cultural Rights
(ICESCR) 162,215,315,
779
non-discrimination right 160,
162-3
social rights 162
states' rights and duties 51,
231-2
see also human rights issues;
self-determination
Romanticism 47-9
Rome, ancient 33-4
Rome Convention on the
Suppression of Unlawful
Acts against the Safety of
Maritime Navigation
639
Rosberg, C 232
Roth, B 227
Rotterdam Convention on Prior
Informed Consent
(1988) 169,676
rule scepticism 69
Rushdie, S 330
Russia/Soviet Union
creation of new states after
collapse of communism
216
human rights issues and 76
national law and international
law 424-5,432
prohibition on export of
technology 346-7,515
recognition of seceded states
255-7
Soviet theory of international
law 67,72-5
comparison with New
Haven school 76-8
Rwanda
International Criminal
Tribunal for Rwanda
(ICTR) 407,447,
727-30
UN peacekeeping in 613
Sachs,A 67
St-Simon, Comte de 45
sanctions see economic sanctions
satellites 127
Schachter, 0 208
Schmitt, C 97,98
Schmitt, MN 64-5
Schreuer, C 209
Sea-Bed Disputes Chamber
(SBDC) 543,544
seas and oceans 623-54
archipelagos 628-9
sea lane passage 637
baselines 626-9
archipelagos 628-9
bays 627-8
normal rule 626
straight 626-7
contiguous zone 337, 632
continental shelf 123, 126,
642-3
deep seabed 646-7
Exclusive Economic Zone
(EEZ) 337,644-6,651
fisheries 650-3
basic scheme of regulation
650
conservation of marine
living resources 683-4
Exclusive Fishing Zone
(EFZ) 644
management 651-3
high seas 637-41,652
hot pursuit 639-40
innocent passage 633-5
internal waters 630-1
jurisdiction in 334, 630-2
resources 642-7
Law of the Sea Convention
140, 166,284,533,538,
543,623-54,658,667-8
maritime delimitation 13-14,
17,647-9
piracy 343,447,639
protection of marine
environment 667-70
straits 635-6
territorial sea 129-30, 336-7,
631-2
navigation in 632-7
transit passage 636-7
secession 216,230
security 90
self-defence 22, 46, 97
as defence to breach of
international law 463
use of force 599-606
self-determination 48, 54,
213-17,239
claims to be a state 213-14
individual right 315-16
use of force and 594
uti possidetis principle and
214-17
self-help 50'5-8
Serbia 259
countermeasures against 516,
526
Kosovo 26,27,55,217,257,
258,260,516,590,
595-7
NATO bombing of 10,517,
597,790
shareholders' protection 130-1,
140,486-7
ship rider agreements 352
Sierra Leone 235,245,247,260,
617
UN peacekeeping in 613-14
Simpson, G 254-5
slavery 43,160,640-1
Slovenia 216
recognition of 255,257,258
Smith,A 65
social rights 162
INDEX
socialism 54
inevitability of 72
Soviet theory of international
law 67,72-5
soft law 146,148,166-70,175
Somalia 224, 228, 233, 235, 260
UN peacekeeping in 613
Sorel,A 43
S0rensen, M 21
sources of international law
62-3,117-43,314-15
environmental law 663-5
formal 118, 119
material 118-19
meaning of 'sources' 117-20
new or additional sources
138-42
equity 140
how new sources can come
into existence 138
problem of superior norms
141-2
resolutions of UN General
Assembly 141
unilateral acts 139-40
relationship between sources
134-7
hierarchy among conflicting
norms and procedures
159-66
hierarchy among regimes
164-6
hierarchy of sources 136-7
relationship between treaty
and custom 134-6
traditional sources 120-34
custom 124-30
general principles oflaw
130-2
judicial decisions and
teachings 132-4
treaties and conventions
121-4
unilateral acts as source of
international law 139-40
South Africa 17, 608
apartheid system 55,515
human rights issues and 775
recognition of 254
suspension of diplomatic
links 240
sovereignty 80, 97
Soviet theory of international
law 67,72-5
comparison with New Haven
school 76-8
Soviet Union see Russia/Soviet
Union
Spain 108
Civil War 51
conquest of Americas 36, 67
rebellions of colonial
territories 213
special missions 401-3
immunity of 401-3
Spinoza, B 38
Spruyt, H 210
standing see legal interest (locus
standi)
states and statehood 205-62
act of state 358,376-7
building/constituting states
259-60
bureaucracies 38
challenges to 207-9
claims to be a state 213-14
community of states 146
equality of states 211-12,336
failed states 235
history of 36,37-8,210-13
immunities 8-10,358,359-76
definition of state for
purposes of 366
development in civil courts
and USA 361-2
development of common
law relating to 359-61
elements constituting plea
of state immunity 363-6
exceptions to adjudication
jurisdiction 366-71
immunity from execution
371-6
origins 359
present day sources 362-3
waiver 365-6
individual claims in
international law and
308
international law and 11,
25-8, 206-36
classical period
(1600-1815) 37-8
historicism 47
positivism 42
international responsibility
and 446, 449-65
attribution of conduct to
the state 454-8.
breach of international
obligation of the state
458-62

states and statehood, cont.
classification and
characterization 449-53
defences/excuses for breach
462-5
elements of 453-65
international or national
law 449-50
responses by injured state
and other states 468-70
typology of 450-3
internatiollal system and
212-13
juridical state 232-6
legal criteria of statehood
221-31
capacity to enter into
international relations
229-30
government 222-9
permanent population
221-2
territory 222
who decides 230-1
legal personality of states
218-19,220-31
meaning of 206-7,366
new world order and 79-82
reasons for existence of
210-11
recognition of 236-60
constituting states 259-60
declaratory/ constitutive
debate 248-50
international organizations
and 250-4
legal consequences 238-41,
247-8
legal nature of recognition
238-41
non-recognition 241-2
recognition of
governments 242-7
Soviet Union and
Yugoslavia example_
254-9
rights and duties of 51,231-2
self~determination 48, 54,
213-17
significance of statehood
94-6
states as facts 220-1
unilateral acts as source of
international law 139-40
violation of human rights in
states 773-5
INDEX
see also jurisdiction; national
law; treaties
Stein, G 66, 82-3
Stein, T 63
Stimson Doctrine 51
Stockholm Convention on
Persistent Organic
Pollutants 676
straits 635-6
subjective territorial jurisdiction
338
Sudan 46,47
sustainable development 164-5,
167,660
Switzerland
jus cogens in 157
United Nations and 251
Taiwan 219,230,231,592
Talleyrand, CM de 48
Tanzania 217
taxation 351
technology, prohibition on export
of 346-7,515
territory
acquisition of 36
boundary disputes 13-14,17,
222
as criteria of statehood 222
territorial principle of
prescriptive jurisdiction
336-9
territorial sea 129-30, 336-7,
631-2
navigation in 632-7
terrorism 26,46, 95, 209, 352,
722,750-4
humanitarian law of war and
793
international criminal law and
752-4
internment of terrorists by US
347
Lockerbie bombing 331,336,
337
meaning of 750-2
self-defence against 603-5
September 11th 2001
incidents 337,603-5,
606, 753-4, 793
textbooks as source of
international law 132
textual analysis 65-6
theoretical perspectives on
international law 59-83
importance of theory 60-1
legal structure of the Cold War
and 67-78
comparison of New Haven
and Soviet approaches
76-8
New Haven school 67,
68:'72
Soviet theory 67,72-5
meaning and uses of theory
61-7
new world order and 78-82
third parties
countermeasures and 514-18
International Court of Justice
(ICn and 577-9
nationality and 486
treaties and 184-5
Thirlway, HWA 64
Thomas Aquinas 34
time, international responsibility
and 461-2
Tomuschat, C 151-2
tort law, jurisdiction and
351-2
torture 8-lO, 155, 160, 409-lO,
419-20,722,748-9
Convrntion against 317,419,
749
trade see international trade
trade unions 318
transit passage 636-7
transport 45
travaux preparatoires 188-9
treaties 33,40,44,148-9,
173-200
acceptance and approval 180
accession to 179
amendment and modification
of 181-2
authority to conclude 177-8
basic concepts and structures
174-6
collective interests protection
490
conflicts
hierarchy among treaties
governing same topic
163-4
hierarchy within single
treaty 160-3
consent to be bound 178-80
effectiveness principle 189-90
environmenta1law and 664-5
fundamental change of
circumstances and
198-9
hierarchy among conflicting
norms and procedures
159-66
hierarchy among regimes
164-6
hierarchy among treaties
governing same topic
163-4
hierarchy within a single
treaty 160-3
human rights and 767-9
immunities of international
organizations and
286-7
impossibility of performance
198
international organizations
278-82
interpretation 185-90,278-82
interpretative declarations
195-6
invalidity of 180-1
making of 177
material breach 196-8
meaning of 'treaty' 122,
174-5
national law and 432-4
object and purpose 189
pacta sum servanda principle
119,121-2, 146-7, 183-4
plurilingual 190
ratification 179
reservations to 191-6
scope of legal obligations
183-5
signature 178
as sources of international law
121-4
relationship with custom
134-6
suspension of 182-3
termination of 182,196-9
third parties and 184-5
travaux preparatoires 188-9
treaty-based extensions of
jurisdiction 343-5
tribunals see courts and tribunals
Truman Proclamation (1945)
642
trusteeship of dependent
territories 52
Tunkin, GI 67, 72-5, 76, 77
Turkey, jurisdiction 334, 338
two-element theory 125-7
Uganda 515,596
INDEX
ultra vires decisions of
international
organizations 285-6
Umbricht, V 537
unilateral acts as source of
international law 139-40
United Kingdom
abduction of alleged offenders
353
bilateral investment treaties
712
constitution 212
diplomatic methods of dispute
settlement and 531, 534
enforcement of environmental
lawin 667
head of state immunity and
399
humanitarian intervention
and 595
Iraqi nationals in 812
jurisdiction 332, 345, 349
jus cogens in 156
legal personality of
international
organizations in 277-8
Lockerbie bombing 331,336,
337
national investment insurance
schemes 714
national law and international
law 426-9,430,431-2,
433,434,435,437,438,
440
recognition of governments
and 246
state immunity and 360-1,
373
state officials immunity and
403
territorial sea 129-30
United Nations 3,12,21,23,25,
26-7,209,251,271,
272-3,506,821
agencies 292-3
Charter 6, 14, 22, 28, 52-3, 54,
64,89,99, 152, 162, 164,
214,251,273,283,309,
449,506-7,518,548-52
environmental law and 660
human rights and 762-5
prohibition 0f use of force
591-7
regional action under
Chapter VIII 614-17
self-defence and 599-606
use offorce and 589,590-1,
607-lO,614-17
Commission on Human
Rights 165-6
Commission on International
Trade Law
(UNCITRAL) 538
Commission on Sustainable
Development 660
Committee on Economic,
Social and Cultural
Rights 165, 778
Compensation Commission
17,485
Conference on Trade and
Development 691,710
dispute settlement and 530,
548-52,553
Economic and Social Council
294-5
Economic Commission for
Europe (ECE) 660
economic sanctions and 523-5
Environment Programme
(UNEP) 659-60
formation of 52
General Assembly 293-4, 549,
660
resolutions 141,284
human rights issues and
762-7
High Commissioner of
Human Rights 769
Human Rights
Commission 760,764-7
Human Rights Committee
95,161,195
Security Council 762-4
humanitarian law of war and
792
ICJ see International Court of
Justice (IC])
immunities of 405-6
indigenous peoples and
316-17
mediation and 533
peacekeeping by 590,610-14,
792
principal organs 291-2,293-5
recognition of states and
251-4
Secretariat 295, 550
Secretary-General 549
Security Council 294,549-51,
590, 606, 732-3, 734
human rights and 762-4

United Nations, cont.
self-determination and 214
Special Rapporteurs on
Globalization 166
structure of 291-3
treaty bodies 293
Trusteeship Council 295,661
United States of America
abduction of alleged offenders
353
antitrust laws 351-2
bilateral investment treaties
712
continental shelf and 642
diplomatic methods of dispute
settlement and 536
economic sanctions by 350,
519,520,521
effects doctrine and 338,339
international responsibility
and 448,451-2,466
internment of terrorists by
347
intervention in Haiti 227
intervention in Panama 227
invasion of Grenada 602-3,
616
jurisdiction 330, 338, 339, 342,
345, 346-7, 347, 350
jus cogens in 156
national investment insurance
schemes 714
national law and international
law 418-19,425-6,429,
430,431,432-3,435,
436
ozone depletion and 671-:-2
pre-emptive self-defence and
601
Prohibition 348
prohibition on export of
technology 346-7
September 11th 2001
incidents 337,603-5,
606, 753-4, 793
ship rider agreements 352
special missions immunity
and 401-2
state immunity and 359-60,
362,373
use of force to protect
nationals abroad 602-3
Universal Declaration of Human
Rights 169
universal principle of prescriptive
jurisdiction 343
.~
INDEX INDEX
uti possidetis principle 214-17, ratification of treaties and 179 waste movement and disposal 164-5,271,284,313, International Criminal
222 reservations to treaties and 675 532, 533, 540, 700-8 Tribunal for the Former
191,192-4 Watts, A 406-7 Agreement on Trade Related Yugoslavia (IC'fY) 155,
Vattel, E de 39,40,108,210-11, scope of 176 weapons, limitations on 802-8 Intellectual Property 407,447,727-30,816
320 signature of treaties and 178 Weil, P 101 Rights (TRIPS) 704-5 prisoners of war in 809-10
Venezuela, reprisals against suspension of treaties and Western Sahara 221 dispute settlement and 18, recognition of seceded states
(1902-03) 46 182-3 Westphalia, Peace of (1648) 38, 544,705-7 255,257-9
Versailles Treaty (1919) 50, 736 termination of treaties and 90,210 General Agreement on Trade UN peacekeeping in 612-13
Vienna Conference on Human 182,196,198,199 wetlands 678-9 in Services (GATS) 704 see also individual states
Rights 163 third parties and 184-5 Wheaton, H 43 multilateral agreements on
Vienna Convention Against Illicit as treaty 122, 123 Wolff, C 38,39, 40 trade in goods 701-3 Zangger Committee 169
Traffic in Narcotic Drugs Vienna Convention on the Law of World Bank 53, 170, 313, 695-9 Trade Policy Review Zimbabwe (Rhodesia)
and Psychotropic Treaties between States World Health Organization Mechanism (TPRM) countermeasures against
Substances 641 and International (WHO) 283 705 516
Vienna Convention for the Organizations (1986) World Summit on Sustainable elections in 227
Protection of the Ozone 153,175 Development 164-5 Yugoslavia 99 illegal white regime in 26,
Layer 671-2 Vietnam 592 World Trade Organization collapse of 216-17,224,255, 224-5, 226, 526, 608
Vienna Convention on Civil Vitoria, F de 36,67,108,299 (WTO) 55, 94, 98, 316,592 Zoller, E 516,522
Liability for Nuclear voluntarism 34,151
Damage 674 voluntary law of nations 37-8,
Vienna Convention on Consular 39-40,42
Relations 388,397-8,
432 war 160-1
Vienna Convention on civil war 51,598-9,814-16
Diplomatic Relations in classical period
135,388,391-6,399 (1600-1815) 39-40
Vienna Convention on Geneva Conventions 122,
Succession of States in 160-1,790,792-802,
Respect of Treaties 806,809-21
(1978) 175-6 international law and 11,
Vienna Convention on the Law of 789-821
Treaties (1969) 122,175 application to civil war
acceptance and approval of 814-16
treaties and 180 enforcement 817-21
accession to treaties and 179 lawful targets and how they
amendment and modification may be attacked
of treaties and 181-2 797-802
authority to conclude treaties limitations on weapons
and 177-8 802-8
collective interests protection protection for victims
and 490 809-14
community of states and 146 when it applies 791-3
countermeasures and 509-10 who is entitled to take part
custom and usage and 135, in hostilities 794-7
137,176 measures short of 46-7
definition of 'treaty' and 174 in middle ages 36
international responsibility of positivism and 43, 44
states and 451,454,469 prisoners of war 794, 809-11
interpretation of treaties and resistance movements 795
186-90,280-1 war crimes 7,154,739-40,
invalidity of treaties and 180-1 817-21
jus cogens and 137, 142, 150, post-1945 tribunals 52,
153,157 447,722,736,791,818
national law and 417 wounded and sick 811
pacta sunt servanda principle warships, passage of 635
and 122,183 waste dumping 668