Tams and Sloan - The Development of International Law by The International Court of Justice-Oxford University Press (2013)

THE DEVELOPMENT OF INTERNATIONAL LAW BY
THE INTERNATIONAL COURT OF JUSTICE

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The Development of
International Law by the
International Court
of Justice
Edited by
CHRISTIAN J TAMS AND JAMES SLOAN
1
3
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Preface
Courts apply and interpret law, and in applying and interpreting, they engage with it.
By engaging, they advance views about the state of the law on the points in dispute.
All this may seem obvious, but it raises important questions: What is the status of
these judicial ‘views’? Do they influence the development of the law? If so, in what
way, and to what extent? This book is an attempt to shed some light on these
questions, and to evaluate the impact of one particular court, the International Court
of Justice (ICJ), on the development of one particular legal order, international law.
The theme is no doubt familiar, but the approach taken in this collection may be
less so: the inquiry is organized in the form of ‘field studies’, surveying broadly-
defined areas of international law and tracing the impact of ICJ pronouncements—
and, where appropriate, those of the Permanent Court of International Justice—on
their development. Taken together, these field studies offer readers a balanced and
nuanced assessment of the Court’s influence on contemporary international law—a
‘judicial impact assessment’, if you will, based on a broad sample of evidence.
This book has its origins in a series of lectures delivered at the University of
Glasgow in 2009/10, which have been revised for publication. The series was
occasioned by the 75th anniversary of Hersch Lauterpacht’s The Development of
International Law by the Permanent Court of International Justice (1934), later
expanded to cover the work of the ICJ. The choice of title for this collection is
not meant to suggest that this book is in any way a successor to Lauterpacht’s work,
the focus and approach of which is quite different. Instead we have chosen it as a
small tribute to Lauterpacht’s lasting influence on many of the issues addressed in
this book, as well as on the study of the ICJ more generally.
As editors, we first and foremost would like to thank the scholars who generously
accepted our invitation to participate in this project. In compiling our ‘wish list’ of
potential contributors we aimed very high indeed. It was deeply gratifying that
virtually all of those approached—whose expertise in the various areas of ‘field
study’ is unrivalled—readily agreed to participate. We are very grateful for their
participation and the cooperative spirit they have shown throughout.
In preparing the manuscript for publication, we have incurred many debts,
which we gladly acknowledge: to Ruth Massey for her diligent editorial work on
the manuscripts; to the University of Glasgow Chancellor’s Foundation and the
Clarke Trust for Legal Education for their financial support; to Emma Brady and
Alison Thomas for their skilful handling of the copy-editing process; and to John
Louth and Merel Alstein for their encouragement throughout.
Finally, we would like to thank the University of Glasgow, School of Law, which
has supported this project as part of its strategic focus on international law and
internationalization more broadly.
Christian J Tams
James Sloan
July 2013
Contents
List of Abbreviations xiii

List of Contributors xv
Table of Cases xix
I. PROLOGUE
1. General Introduction 3
Christian J Tams and James Sloan
2. The International Court of Justice as an ‘Agent’ of Legal
Development? 7
Sir Franklin Berman
1. Introduction 7
2. Legislative intent 8
3. The World Court’s approach 10
4. The effect of the Court’s judicial activity 17
5. Concluding remarks 20
I I . T H E L A W O F TR E A T I E S
3. The Role of the International Court of Justice in the
Development of the Contemporary Law of Treaties 25
Vera Gowlland-Debbas
1. Introduction 25
2. The Court and the diversity of forms and actors involved
in treaty-making 29
3. The Court, the hierarchization of international law, and
the concept of collective interest treaties 34
4. The ICJ and the unity of the international system 46
4. The International Court of Justice and State Succession to
Treaties: Avoiding Principled Answers to Questions of Principle 53
Andreas Zimmermann
1. Introduction 53
2. Distinguishing state succession from state identity/continuity
in the jurisprudence of the ICJ 54
viii Contents
3. Treaty succession in the jurisprudence of the ICJ 57
4. Impact of the Court’s jurisprudence on the law of treaty succession 68
III. THE LAW O F CLAIMS

5. The International Court of Justice and the Law of State Responsibility 71
James Crawford
1. Introduction 71
2. Contribution of the PCIJ to the law of state responsibility 71
3. The ICJ’s first responsibility cases and the initiation of the
ILC’s work on responsibility 73
4. Ago’s influence on the ILC’s work 75
5. The introduction of the concept of obligations owed to the
international community as a whole 76
6. The Court’s activism in Gabčíkovo-Nagymaros 79
7. Reception and influence of the ILC Articles 81
8. Conclusion 85
6. Diplomatic Protection and the International Court of Justice 87
Kate Parlett
1. Introduction 87
2. Origins of the doctrine of diplomatic protection 87
3. The inter-war period: the contours of the doctrine as shaped
by the PCIJ 88
4. Diplomatic protection in the ICJ 93
5. Conclusions: progress and stagnation 105
7. Jurisdictional Immunities 107
Roger O’Keefe
1. Introduction 107
2. Less contentious questions 109
3. More contentious questions 115
4. The ICJ versus other international lawmaking processes 146
5. Conclusion 148
IV. SPATIAL REGIMES

8. The International Court of Justice and the Law of Territory 151
Malcolm N Shaw
1. Introduction 151
2. Sovereignty, territory, and title 152
3. Pre-colonial title 155
4. Validity of colonial title 156
5. Self-determination and the process of decolonization 160
6. Uti possidetis 162
Contents ix
7. Title and boundary treaties 166

8. Relevance of the exercise of effective authority (effectivités) 168
9. Territorial integrity and secession in the post-independence
situation 172
10. A role for human rights? 174
11. Conclusion 176
9. The Development of the Law of the Sea by the International
Court of Justice 177
Vaughan Lowe and Antonios Tzanakopoulos
1. Introduction 177
2. The development of international law by the ICJ 178
3. The agents of development of the law of the sea 179
4. Influencing the development of the law: kind and degree 185
5. Contribution of the ICJ to the development of the law of the sea 188
6. Conclusion: the Court’s influence 193
V. THE UNITED NATIONS

10. The Role of the International Court of Justice in the
Development of the Institutional Law of the United Nations 197
James Sloan and Gleider I Hernández
1. Introduction 197
2. The United Nations as an international organization 200
3. Powers of the principal organs 207
4. The Court’s powers vis-à-vis the non-judicial principal organs 224
5. Conclusion 233
VI. ARMED CONFLICT

11. The International Court of Justice and the Use of Force 237
Christine Gray
1. Introduction 237
2. The Court’s first case on the use of force: Corfu Channel 238
3. The language of the Court in Corfu Channel and
subsequent cases 240
4. The Nicaragua case 241
5. The prohibition of the use of force 246
6. Self-defence 251
7. Conclusion 260
12. The International Court of Justice and the Law of Armed Conflicts 263
Claus Kreß
1. Introduction 263
2. The judicial acquis: a sketch 264
x Contents
3. Some reflections on the character and style of the
Court’s jurisprudence 280
4. The Court as a political agent and as a diplomat 290
5. Conclusion: on the Court’s contribution to the development
of the law of armed conflicts 295
VII. COMMUNITY CONCERNS

13. Human Rights Before the International Court of Justice:
Community Interest Coming to Life? 301
Bruno Simma
1. Introduction 301
2. The first phase: hesitation and restraint 303
3. The more recent jurisprudence: a qualitative leap? 308
4. Background and context of the Court’s human rights case law 318
5. Prospects for the future 321
6. A proper role for the Court 322
14. The International Court of Justice and the Rights of
Peoples and Minorities 327
Gentian Zyberi
1. Introduction 327
2. International protection of the rights of minorities through
the Permanent Court 329
3. The rights of peoples through the lens of the ICJ 338
15. The International Court of Justice and International
Environmental Law 353
Malgosia Fitzmaurice
1. Introduction 353
2. Formulating basic concepts: Corfu Channel, Barcelona Traction 355
3. Initial caution: Nuclear Tests I 358
4. Growing awareness, procedural strictures: Nauru,
Nuclear Tests II 360
5. Mainstreaming international environmental law: Nuclear
Weapons, Gabčíkovo-Nagymaros 363
6. Proceduralizing environmental law: Pulp Mills 370
7. The diversity of international environmental law:
pending cases 372
8. The nature and relevance of the Court’s contribution 373
Contents xi
VIII. CONCLUSION
16. The ICJ as a ‘Law-Formative Agency’: Summary and Synthesis 377
Christian J Tams
1. Introduction 377
2. Taking stock 377
3. Explaining the Court’s impact on legal development 388
4. The Court’s contribution in perspective 395
Index 397
List of Abbreviations
AB WTO Appellate Body of the World Trade Organization
AFDI Annuaire français de droit international
ASR Articles on State Responsibility
AT UNCnLOS Arbitral Tribunal constituted under Annex VII of the United Nations
Convention on the Law of the Sea
BYIL British Yearbook of International Law
CAT Convention Against Torture
CERD Convention on the Elimination of Racial Discrimination
CJEU Court of Justice of the European Union
CLJ Cambridge Law Journal
CLP Current Legal Problems
CoC Court of Cassation
CSM Convention on Special Missions
DLR Dominion Law Reports (Canada)
DRC Democratic Republic of Congo
ECnHR European Commission of Human Rights
ECOSOC UN Economic and Social Council
ECSI European Convention on State Immunity
ECtHR European Court of Human Rights
EIA environmental impact assessment
EJIL European Journal of International Law
FOA Food and Agriculture Organization
FRY Federal Republic of Yugoslavia
FSIA Foreign Sovereign Immunities Act
GA United Nations General Assembly
GATT General Agreement on Tariffs and Trade
GA Res General Assembly Resolution
IACtHR Inter-American Court of Human Rights
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ICLQ International and Comparative Law Quarterly
ICRC International Committee for the Red Cross
ICSECR International Covenant on Social, Economic and Cultural Rights
ICSID International Centre for the Settlement of Investment Disputes
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
ILA International Law Association
ILC Ybk Yearbook of the International Law Commission
ILM International Legal Materials
ILO International Labour Organisation
ILR International Law Reports
IMO International Maritime Organization
IRRC International Review of the Red Cross
ITLOS International Tribunal for the Law of the Sea
LNTS League of Nations Treaty Series
xiv List of Abbreviations
LOSC United Nations Convention on the Law of the Sea
MEA multilateral environmental agreement
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
RIAA Reports of International Arbitral Awards
SC United Nations Security Council
SC Res Security Council Resolution
SFRY Socialist Federal Republic of Yugoslavia
SIA State Immunity Act (UK)
UNCnLOS United Nations Convention on the Law of the Sea
UNCSI United Nations Convention on Jurisdictional Immunities of States and
Their Property
UNHRC United Nations Human Rights Committee
UNTS United Nations Treaty Series
VCDR Vienna Convention on Diplomatic Relations
VCLT Vienna Convention on the Law of Treaties
VCRS Vienna Convention on the Representation of States in their Relations
with International Organizations of a Universal Character
VCSST Vienna Convention on the Succession of States in respect of Treaties
WTO World Trade Organization
List of Contributors
Sir Franklin Berman KCMG QC is a barrister and international arbitrator, and Visiting
Professor of International Law in the Universities of Oxford and Cape Town. Between 1991
and 1999 he was the Legal Adviser to the Foreign & Commonwealth Office, and served as
UK Agent in various proceedings before the International Court of Justice. He is a former
Judge ad hoc on the Court, a member of the Permanent Court of Arbitration, and on the list
of Arbitrators under the Washington Convention on the Settlement of International Invest-
ment Disputes.
James Crawford AC SC is Whewell Professor of International Law, a Fellow of Jesus
College, Cambridge, and a member of the Australian and English bars. He is also a Research
Professor of Law at Latrobe University, Victoria. In addition to scholarly work on statehood,
collective rights, investment law and international responsibility, he has appeared frequently
before the International Court of Justice and other international tribunals, and is engaged as
expert, counsel and arbitrator in international arbitration. From 1992–2001 he was a
member of the International Law Commission.
Malgosia Fitzmaurice holds a Chair of Public International Law at Queen Mary, University
of London. She specializes in the law of treaties, international environmental law and the law
relating to indigenous peoples, on which subjects she has published extensively. She is also
Editor-in-Chief of the International Community Law Review. She has been invited to teach
at many universities, such as Sorbonne-Pantheon and Berkeley Law School.
Vera Gowlland-Debbas is Emeritus Professor of Public International Law, Graduate
Institute of International and Development Studies, Geneva, and Visiting Professor at
University College London (UCL). She has also taught at UC Berkeley and Université
Paris II among others, and been a Visiting Fellow at All Souls College, Oxford. Her
publications cover fields such as UN sanctions, treaty law, and international responsibility.
Her latest work is The Security Council and Issues of Responsibility under International Law
(Hague Academy Recueil des Cours, 2011). She acted as Counsel for the Arab League in the
ICJ Wall Advisory Opinion, currently counsels governments and international organiza-
tions, and is an Academic Member of Doughty Street Chambers.
Christine Gray is a Professor of International Law at the University of Cambridge, and a
Fellow of St John’s College. She specializes in the law on the use of force. Her main work in
this area is International Law and the Use of Force (Oxford: OUP, 3rd edition 2008). She also
works on the peaceful settlement of disputes and on judicial remedies in international law.
Gleider I Hernández is Lecturer in Law at the University of Durham. Previously, he was
Associate Legal Officer at the International Court of Justice (2007–2010), serving from
2008–2010 as Law Clerk to Vice-President Peter Tomka and Judge Bruno Simma. He
holds a DPhil from Wadham College, Oxford, an LLM (Hons) from Leiden University, and
BCL and LLB degrees from McGill University. His first monograph, The International
Court of Justice and the Judicial Function, is forthcoming from Oxford University Press. Prior
to his academic career, he practised as a barrister and solicitor at the law offices of Fasken
Martineau DuMoulin LLP.
xvi List of Contributors
Claus Kreß is a Professor of International Law and Criminal Law. He holds the Chair for
German and International Criminal Law and he is the Director of the Institute of
International Peace and Security Law at the University of Cologne. In addition to scholarly
work on the law on the use of force, the law of armed conflicts and international criminal
law, he has been representing Germany in the negotiations regarding the International
Criminal Court since 1998. He is Life Member of Clare Hall College at the University of
Cambridge and a Member of the North Rhine-Westphalian Academy of Sciences, Human-
ities and the Arts.
Vaughan Lowe QC is Emeritus Professor of International Law, an Emeritus Fellow of All
Souls College, Oxford University, and a Bencher of Gray’s Inn. He practises as a barrister
and arbitrator from Essex Court Chambers, London. He has acted as arbitrator and as
counsel in cases before the ICJ, the ITLOS and other international tribunals, including in
cases concerning the Law of the Sea.
Roger O’Keefe is University Senior Lecturer in Law and Deputy Director of the Lauter-
pacht Centre for International Law at the University of Cambridge; Fellow of Magdalene
College, Cambridge; and Visiting Professor at the Department of Legal Studies, Central
European University, Budapest. He is the co-editor, with Christian J Tams, of The United
Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary
(Oxford: OUP, 2013).
Kate Parlett is an associate at Freshfields Bruckhaus Deringer LLP, based in the Paris office.
She specializes in public international law and arbitration and has appeared before inter-
national arbitral tribunals and the International Court of Justice. She holds a PhD and LLM
in public international law from the University of Cambridge. Her doctoral thesis was
published under the title The Individual in the International Legal System. Her research
interests include the law of international responsibility, state immunity, and questions of
structural change in the international legal system. Before joining Freshfields, Kate was a
research fellow at the Lauterpacht Centre for International Law at the University of
Cambridge.
Malcolm N Shaw QC is Senior Fellow at the Lauterpacht Centre for International Law,
University of Cambridge, and Research Professor at the University of Leicester. He is also a
Trustee of the British Institute of International and Comparative Law and a practising
barrister at Essex Court Chambers, London. He is the author of inter alia Title to Territory in
Africa (Oxford: OUP, 1986) and International Law (Cambridge: CUP, 6th edition 2008).
Bruno Simma is a Judge at the Iran-US Claims Tribunal in The Hague, a Professor (retired)
at the University of Munich and a Professor of Law at the University of Michigan in Ann
Arbor (on leave during his tenure at the Iran-US Claims Tribunal). Between 2003 and
2012, he was a Judge at the International Court of Justice in The Hague. His scholarly work
notably explores the role of human rights in international law, the law of state responsibility,
and the law of treaties. He is the author, with Alfred von Verdross, of Universelles Völkerrecht
(Duncker und Humblot, 3rd edition 1984), and an editor of The Charter of the United
Nations—A Commentary (Oxford: OUP, 3rd edition 2012).
James Sloan is a Senior Lecturer in International Law at the University of Glasgow, School
of Law, where he specializes in the Law of the United Nations, International Human Rights
Law and International Criminal Law. He is also Visiting Professor at the University of
California, Hastings College of the Law. Prior to joining the School of Law, he worked for
the United Nations in different capacities. His monograph The Militarisation of Peacekeep-
List of Contributors xvii
ing in the Twenty-First Century was published by Hart in 2011. He has advised a number of
intergovernmental and non-governmental organizations on international legal matters. He
has been admitted to the Bars of New York and Ontario.
Christian J Tams is Professor of International Law at the University of Glasgow, where he
directs the Law School’s LLM in international law. He is a member of the Royal Society of
Edinburgh Young Academy of Scotland, of the ILA Committee on the Use of Force and of
the German Court of Arbitration for Sport, and he sits on the scientific advisory board of the
European Journal of International Law. His recent publications include (as co-editor) The
Statute of the International Court of Justice—A Commentary (Oxford: OUP, 2nd edition
2012) and Legacies of the Permanent Court of International Justice (Leiden: Brill/Nijhoff,
2013). In addition to his academic work, he has advised states in proceedings before the
International Court of Justice and the International Tribunal for the Law of the Sea.
Antonios Tzanakopoulos is a University Lecturer in Public International Law at the
University of Oxford and a Fellow of St Anne’s College, as well as a Lecturer in Public
International Law at the University of Glasgow. His research focuses on the responsibility of
states and international organizations, the relationship between international and domestic
law, and the law of dispute settlement. His book Disobeying the Security Council was
published by Oxford University Press in 2011. In addition to his scholarly work, he is
Associate Editor for the Oxford Reports on International Law in Domestic Courts, Co-
Rapporteur of the ILA Study Group on Principles on the Application of International
Law by Domestic Courts, and an advocate with the Athens Bar in Greece.
Andreas Zimmermann is Professor of International Law at the University of Potsdam and
Director of its Centre of Human Rights. He holds a Dr. jur. from the University of
Heidelberg and an LLM from Harvard Law School. He has been an adviser to the German
delegation to the United Nations Diplomatic Conference on the Establishment of an
International Criminal Court and is a member of the Permanent Court of Arbitration. He
has acted as counsel in proceedings before the ICJ and as judge ad hoc in various cases before
the European Court of Human Rights. He is arbitrator under the annex to the Vienna
Convention on the Law of Treaties and member of the advisory boards on United Nations
issues and on public international law of the German Ministry of Foreign Affairs, where he
also teaches international law to German diplomats. He is inter alia co-editor of The Statute of
the International Court of Justice—A Commentary (Oxford: OUP, 2nd edition 2012).
Gentian Zyberi is Associate Professor of International Law at the Norwegian Centre for
Human Rights, University of Oslo, Norway. Over the last ten years he has researched and
published, and prepared and taught courses on international human rights, humanitarian
law, international criminal law and public international law at different universities in the
Netherlands, the United States, China, and Albania. From November 2004 to November
2012 he provided legal assistance to defence teams in the Limaj et al. and the Haradinaj et al.
cases tried before the International Criminal Tribunal for the former Yugoslavia. Throughout
2009 he acted as legal advisor and coordinator of the Albanian legal team in the Kosovo case
before the International Court of Justice. His current research focuses on issues related to
transitional justice, responsibility to protect, and the contribution of international courts and
tribunals to interpreting and developing international human rights and humanitarian law.
Table of Cases
ICJ
Accordance with International Law of the Unilateral Declaration of Independence in Respect

of Kosovo (Advisory Opinion) [2010] ICJ Rep 403 . . . . . 16, 17–8, 41, 42, 162, 173–4,
199, 217–8, 226–232, 247, 248, 306, 342
Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo (Order) [2008] ICJ Rep 410 . . . 338
Admissibility of Hearings by the Committee of South West Africa (Advisory Opinion)
[1956] ICJ Rep 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 219, 305–6,
Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3. . . . . . . . . . 29, 30, 38,
58, 157, 166, 225
Aerial Herbicide Spraying (Ecuador v Columbia) (<http://www.icj-cij.org/docket/
index.php?p1=3&p2=1&code=ecol&case=138&k=ee> (accessed 17 May 2013))
[for information] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 372–3
Aerial Incident of 10 August 1999 (Pakistan v India) (Jurisdiction) [2000] ICJ Rep 12 . . . . 237
Aerial Incident of 3 July (Iran v USA) Order of 9 April 1998 . . . . . . . . . . . . . . . . 238
Ahmadou Sadio Diallo (Guinea v DRC) (Compensation) Judgment of 19 June 2012
(<http://www.icj-cij.org/docket/files/103/17044.pdf> (accessed
17 May 2013)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 311–2
Ahmadou Sadio Diallo (Guinea v DRC) (Merits) [2010] ICJ Rep 639 . . . . . . . 99, 101, 102,
106, 307–8, 310–2, 319, 322, 324–5, 386
Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections) [2007] ICJ Rep 582 . . . . 32,
75, 93, 94, 99, 101, 104, 106, 311–2
Anglo-Iranian Oil Company (UK v Iran) (Preliminary Objections) [1952] ICJ Rep 89 . . . . . 32
Anglo-Norwegian Fisheries (UK v Norway) [1951] ICJ Rep 116 . . . . . . . . . 19, 21, 168, 190
Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan) [1972]
ICJ Rep 46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities
of the United Nations (Advisory Opinion) [1989] ICJ Rep 177 . . . . . . . . 107, 205, 305
Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 12. . . . . . 199, 202, 220
Application for Review of Judgment No 158 of the United Nations Administrative Tribunal
(Advisory Opinion) [1973] ICJ Rep 166 . . . . . . . . . . . . . . . . . . . . . . 17, 203
Application for Review of Judgment No 273 of the United Nations Administrative Tribunal
(Advisory Opinion) [1982] ICJ Rep 325 . . . . . . . . . . . . . . . . . . . . . . 17, 207
Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Yugoslavia) Preliminary Objections (Yugoslavia v Bosnia and
Herzegovina) [2003] ICJ Rep 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v Serbia) (Preliminary Objections) [2008] ICJ Rep 412 . . . . . . . . . . 26, 57,
310, 318, 383
(Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43 . . . . . 57,
60, 72, 78, 84–5, 207, 239, 264, 267, 275,
310, 318, 324–5, 328, 345–8, 386–7
xx Table of Cases
(Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595 . . . . 44,
45, 56, 60–6
(Bosnia and Herzegovina v Yugoslavia) (Further Provisional Measures) [1993] ICJ
Rep 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 225
(Bosnia and Herzegovina v Yugoslavia) (Provisional Measures) [1993] ICJ Rep 3. . . . 56, 64
Application of the Interim Accord of 13 September 1995 (Macedonia v Greece) Judgment
of 5 December 2011 (<http://www.icj-cij.org/docket/files/142/16827.pdf>
(accessed 17 May 2013)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v Russia) (Preliminary Objections) Judgment of 1 April 2011
(<http://www.icj-cij.org/docket/files/140/16398.pdf> (accessed 17 May 2013)) . . . 14, 61,
63, 237, 312, 319, 324–5, 339, 349
Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v Russia) (Provisional Measures) [2008] ICJ Rep 353 . . . . . . . . . 48, 55, 61,
63, 324–5, 349
Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ
Rep 168 . . . . . . . . . . . . . . . . 48, 72, 172, 237, 239, 241–4, 246, 248–9, 251–2,
255–7, 259–61, 264, 310, 321, 342–3, 386
Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda)
( Jurisdiction and Admissibility) [2006] ICJ Rep 6 . . . 14, 31, 34, 43–4, 143, 237, 309, 328
Arrest Warrant of 11 April 2000 (DRC v Belgium) [2002] ICJ Rep 3 . . . . . . .79, 93, 108–9,
111, 115–31, 143, 147, 264, 278, 282, 297, 315, 325, 385, 387
Asylum (Colombia v Peru) [1950] ICJ Rep 266 . . . . . . . . . . . . . . . . . . . . . . 152–3
Avena and Other Mexican Nationals (Mexico v USA) [2004] ICJ Rep 12 . . . . . . 93, 304–5,
307–8, 324
Barcelona Traction, Light, and Power Company, Limited (Belgium v Spain) (Second Phase)
(Merits) [1970] ICJ Rep 3 . . . . . . . .5, 14, 32, 34, 75, 77, 87, 93, 95, 99, 100, 102–4,
106, 266, 281, 304, 343–4, 355, 357–8, 373, 389
Border and Transborder Armed Actions (Nicaragua v Honduras) [1988] ICJ Rep 95 . . . . . 228
Border and Transborder Armed Actions (Nicaragua v Honduras) (Order) [1992] ICJ Rep 222. 237
Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua)
(<http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=crn&case=150&k=ec>
(accessed 17 May 2013)) [for information] . . . . . . . . . . . . . . . . . . . . . . . 238
Certain Criminal Proceedings in France (Republic of the Congo v France) (Removal from List)
[2010] ICJ Rep 635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Certain Criminal Proceedings in France (Republic of the Congo v France) (Provisional Measures)
[2003] ICJ Rep 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108, 315
Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory
Opinion) [1962] ICJ Rep 151. . . . . . . . . . . . . . . 16, 36, 39, 41, 198–9, 202, 210,
214–6, 219–21, 223, 225, 229–30
Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992]
ICJ Rep 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 361, 363, 373
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008]
ICJ Rep 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Competence of the General Assembly for the Admission of a State to the United Nations
(Advisory Opinion) [1950] ICJ Rep 4 . . . . . . . . . . . . . . . . .40, 209–10, 212, 214
Conditions for Admission of a State to Membership in the United Nations (Article 4 of the
Charter) (Advisory Opinion) [1947] ICJ Rep 57 . . . . . 201, 208–9, 212, 221–3, 230, 385
Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative
Organization (Advisory Opinion) [1960] ICJ Rep 171 . . . . . . . . . . . . . . . . . 224
Table of Cases xxi
Construction of a Road in Costa Rica along the River San Juan (Nicaragua v Costa Rica)
<http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=ncr2&case=152&k=7f>
(accessed 17 May 2013) [for information] . . . . . . . . . . . . . . . . . . . . . . . 372
Continental Shelf (Libya/Malta) [1985] ICJ Rep 13 . . . . . . . . . . . . . . . . . . . . . 189
Continental Shelf (Tunisia v Libya) (Application by Malta for Permission to Intervene)
[1981] ICJ Rep 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Continental Shelf (Tunisia/Libya) [1982] ICJ Rep 18 . . . . . . . . . . . . . . . 4, 165, 189–90
Corfu Channel (UK v Albania) (Expert Opinion: Order) [1948] ICJ Rep 124 . . . . . . . . . 73
Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4. . . . . . . . . 10, 26, 71, 73–4, 177,
191–2, 237–42, 244, 246–7, 249, 260–1, 263–6,
286, 304, 355–60, 365, 373
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/USA) [1984]
ICJ Rep 246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 179, 185
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission
on Human Rights (Advisory Opinion) [1999] ICJ Rep 62 . . . . . . . . 31, 107, 198, 202,
205, 221, 305
Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) [2009]
ICJ Rep 213 . . . . . . . . . . . . . . . . . . . . . . . . 37, 153, 166, 175–6, 323, 370
East Timor (Portugal v Australia) [1995] ICJ Rep 90 . . . . . . . . . . . 79, 162, 306, 341, 343
Effect of Awards of Compensation made by the United Nations Administrative Tribunal
(Advisory Opinion) [1954] ICJ Rep 47 . . . . . . . . . . . . . . . . . 41, 202–3, 210–12
Elettronica Sicula SpA (ELSI) (US v Italy) [1989] ICJ Rep 15 . . . . . . . . . . . 32, 93, 102–3
Fisheries Jurisdiction (Germany v Iceland) (Merits) [1974] ICJ Rep 175 . . . 13, 72, 82, 190, 380
Fisheries Jurisdiction (Spain v Canada) [1998] ICJ Rep 432 . . . . . . . . . . . . . . . 93, 190
Fisheries Jurisdiction (UK v Iceland) (Merits) [1974] ICJ Rep 3 . . . 13, 26, 82, 190–1, 238, 380
Frontier Dispute (Benin/Niger) [2005] ICJ Rep 90 . . . . . . . . . . . . . . . . . . . . . 170
Frontier Dispute (Burkina Faso/Mali) [1986] ICJ Rep 554 . . 154, 155, 163–5, 169–70, 173, 385
Frontier Dispute (Burkina Faso/Niger) Judgment of 16 April 2013 (http://www.icj-cij.org/
docket/index.php?p1=3&p2=3&code=bfn&case=149&k=f 9 (Accessed 17 May 2013)). . 163
Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7. . . . . 37–9, 48, 50–1, 60,
63, 72, 77, 79, 81, 207, 366–7, 383
Interhandel (Switzerland v USA) (Preliminary Objections) [1959] ICJ Rep 6 . . . . . . . . . 93–4
International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128 . . . . . . 16,
26, 202, 218–21, 230, 305–6, 340, 351
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase)
(Advisory Opinion) [1950] ICJ Rep 65 . . . . . . . . . . . . . . . . . . 197–8, 219, 305
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase)
(Advisory Opinion) [1950] ICJ Rep 221 . . . . . . . . . . . . . . . . . . . . . . . 4, 305
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory
Opinion) [1980] ICJ Rep 73 . . . . . . . . . . . . . . . . . . . . . . . . . 31, 202, 206
Jurisdictional Immunities of the State (Germany v Italy) (Application by Greece for Permission
to Intervene) Order of 4 July 2011 (<http://www.icj-cij.org/docket/files/143/16556.pdf>
(accessed 17 May 2013)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
Jurisdictional Immunities of the State (Germany v Italy) Order of 6 July 2010 (<www.icj-cij.org/
docket/files/143/16027.pdf> (accessed 17 May 2013)) . . . . . . . . . . . . . . . 315, 316
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) Judgment of
3 February 2012 (<www.icj-cij.org/docket/files/143/16883.pdf> (accessed on
17 May 2013)) . . . . . . . . . . . . . . . .28, 55, 79, 108, 264, 267, 277–8, 315–7, 385
Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep 1045 . . . . 38, 167, 175, 369, 385
LaGrand (Germany v USA) (Provisional Measures) [1999] ICJ Rep 9 . . . . . . . . . . . . . 30
LaGrand (Germany v USA) [2001] ICJ Rep 466 . . . . . . . 82, 93, 303, 305, 307–8, 324, 385
xxii Table of Cases
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial
Guinea Intervening) [2002] ICJ Rep 303 . . . . . . . . . . 33, 72, 82, 155, 157, 159–60,
166–7, 170–71, 173–5, 189, 237, 254
Land, Island and Maritime Frontier (El Salvador/Honduras: Nicaragua Intervening) [1992]
ICJ Rep 351 . . . . . . . . . . . . . . . . . . . . . . . . . 154, 163, 164, 166, 170, 173
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory
Opinion) [1971] ICJ Rep 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 27,
28, 36–7, 39, 41–2, 46, 161, 199, 201–2, 215, 217, 222,
224, 306, 327, 229–32, 340, 348–9, 351, 385
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) [2004] ICJ Rep 136. . . . . . . . . . . 16–8, 28, 33, 34, 41, 42, 47, 48, 74, 82,
84, 162, 199, 202, 214, 215–16, 220, 221, 238, 246, 251, 259–61,
263, 266–72, 276–8, 280–2, 287–8, 290–2, 295–7, 306, 309, 319, 322,
324–5, 340–2, 379, 386
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Order)
[2003] ICJ Rep 428. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 338
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 . . . 4,
16, 18, 26, 34, 40, 47, 49, 51, 199, 206, 217, 219, 220, 238, 243, 250,
251, 254–8, 261, 263–70, 273–4, 276, 279–86, 288–9, 292–5, 308, 325,
346, 364–7, 370, 373, 380, 388
Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996]
ICJ Rep 66. . . . . . . . . . . . . . . . . . . . . . . . . 36, 40, 42, 206, 364, 370, 373
Legality of Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections) [2004]
ICJ Rep 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 328
Legality of Use of Force (Serbia and Montenegro v Netherlands) (Preliminary Objections) [2004]
ICJ Rep 1011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Legality of Use of Force (Yugoslavia v Netherlands) (Provisional Measures) [1999]
ICJ Rep 761 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 237
Legality of Use of Force (Yugoslavia v Spain) (Provisional Measures) [1999] ICJ Rep 542 . . . 43,
237, 309
Legality of Use of Force (Yugoslavia v USA) (Provisional Measures) [1999] ICJ Rep 916 . . . 43,
237, 309
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain)
(Merits) [2001] ICJ Rep 40 . . . . . . . . . . . . . . . . . . . . . . . . . 153, 169, 189
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain)
( Jurisdiction and Admissibility) [1994] ICJ Rep 112 . . . . . . . . . . . . . . 29–30, 189
Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway)
[1993] ICJ Rep 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 189
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits)
[1986] ICJ Rep 14 . . . . . . . . 49, 77, 85, 237, 241–261, 263–268, 271, 275, 279, 282,
284–6, 289, 295, 305, 379, 386, 394
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Jurisdiction
and Admissibility) [1984] ICJ Rep 392 . . . . . . . . . . . . . . . 10, 45, 225, 241–243,
Minquiers and Ecrehos (France v UK) [1953] ICJ Rep 47 . . . . . . . . . . . . . . .157, 168–9
North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands) [1969] ICJ Rep 3 . . 5,
19, 21, 49, 180, 189, 371
Nottebohm (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4 . . . . . . . 93, 97–99
Nuclear Tests (Australia v France) [1974] ICJ Rep 253 . . . . . . . . 31, 358–60, 362, 364, 370
Nuclear Tests (Australia v France) (Interim Protection) [1973] ICJ Rep 99 . . . . . . . . . . 359
Nuclear Tests (Australia v France; New Zealand v France) (Application by Fiji for Permission to
Intervene) [1973] ICJ Rep 535 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Nuclear Tests (New Zealand v France) (Interim Protection) [1973] ICJ Rep 135 . . . . . . . 359
Table of Cases xxiii
Nuclear Tests (New Zealand v France) [1974] ICJ Rep 457 . . . . . 31, 358–60, 362, 364–5, 370
Oil Platforms (Iran v USA) [2003] ICJ Rep 161 . . . . . . . . 49, 93, 237–8, 240, 242–3, 246,
251, 253–7, 261
Pulp Mills on the River Uruguay (Argentina v Uruguay) (Provisional Measures)
[2007] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14 . . . . . . . 370, 371
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libya v UK ) (Order of 10 September 2003) . . . . . . 12, 202
Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the
Aerial Incident at Lockerbie (Libya v UK ) (Preliminary Objections) [1998]
ICJ Rep 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15, 202, 227–8
Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the
Aerial Incident at Lockerbie (Libya v USA) (Provisional Measures) [1992]
ICJ Rep 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 45, 225–8
Questions of Interpretation and Application of the 1971 Montreal Convention Arising from
the Ariel Incident at Lockerbie (Libya v UK) (Provisional Measures) [1992]
ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 45, 225–8
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) Judgment
of 20 July 2012 (<http://www.icj-cij.org/docket/files/144/17064.pdf>
(accessed 17 May 2013)) . . . . . . . . . . . . . . . . . 264, 290, 308, 313–4, 320, 324
Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949]
ICJ Rep 174 . . . . . . . . . . . . . . . . . . 16, 19, 31, 40–1, 73, 199, 202–6, 210–11,
215, 219–20
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s
Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case [1995]
ICJ Rep 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360–3, 370, 373
Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena
and Other Mexican Nationals (Mexico v USA) (Merits) [2009] ICJ Rep 3. . . . . . . . . 82
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide
(Advisory Opinion) [1951] ICJ Rep 15 . . . . . . . . . 5, 19–20, 36, 41, 43, 220, 265–6,
305, 324, 344–5, 379, 386
Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Rep 6 . . . . . 156
Rights of Nationals of the United States of America in Morocco (France v USA) [1952]
ICJ Rep 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
South West Africa (Ethiopia and Liberia v South Africa) (Preliminary Objections) [1962]
ICJ Rep 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 29, 36
South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase)
[1966] ICJ Rep 6. . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 26, 38, 306, 344
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore) [2008] ICJ Rep 12 . . . . . . . . . . . . . . . . . 153, 154, 168–71
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) [2002]
ICJ Rep 625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168–170
Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep 6 . . . 156, 163, 165–6
Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections) [1961]
ICJ Rep 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Territorial and Maritime Dispute (Nicaragua v Colombia) (Preliminary Objections) [2007]
ICJ Rep 832 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Territorial and Maritime Dispute (Nicaragua v Colombia) Judgment of 19 November 2012
(<http://www.icj-cij.org/docket/files/124/17164.pdf> (assessed 17 May 2013)) . . . 164, 165,
168, 169, 237–8
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v Honduras) [2007] ICJ Rep 659 . . . . . . . . . . . . . . . . 164, 169, 189
Territorial Dispute (Libya /Chad) [1994] ICJ Rep 6 . . . . . . . . 36, 156, 157, 166–7, 170, 385
xxiv Table of Cases
Trial of Pakistani Prisoners of War (Pakistan v India) (Order) [1973] ICJ Rep 347 . . 58, 59, 295
United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980]
ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . 47, 77, 93, 108, 225, 238, 304–5, 385–6
Vienna Convention on Consular Relations (Paraguay v USA) [1998] ICJ Rep 248 . . . . . . . 93
Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South
West Africa (Advisory Opinion) [1955] ICJ Rep 67 . . . . . . . . . . . . . . . 16, 305–6
Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 . . . . . . . . . 33, 153–5, 158–9, 161,
219, 306, 340–1
Whaling in Antarctic (Australia v Japan) (<http://www.icj-cij.org/docket/index.php?p1=3&
p2=1&code=aj&case=148&k=64> (accessed 17 May 2013)) [for information] . . . . . . 373
PCIJ
Access to German Minority Schools in Upper Silesia (1931) PCIJ Ser A/B No 40. . . . . . . 335
Advisory Opinion given by the Court on September 10th 1923 on certain questions relating to
settlers of German origin in the territory ceded by Germany to Poland (1923) PCIJ
Ser B No 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331, 333
Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter
Pázmány University v Czechoslovakia) (1933) PCIJ Ser A/B No 61 . . . . . . . . . . 89, 92
Competence of the ILO to Regulate Incidentally the Personal Work of the Employer (Advisory
Opinion) (1926) PCIJ Ser B No 13 . . . . . . . . . . . . . . . . . . . . . . 10, 80, 205
Customs Regime between Germany and Austria (1931) PCIJ Ser A/B No 41 . . . . . . . . . . 29
Eastern Greenland (1933) PCIJ Ser A/B No 53 . . . . . . . . . . . . . . . . . . . . . 157, 169
Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No 10. . . . . . . . . . . 331–2
Factory at Chorzów (Interpretation) (1927) PCIJ Ser A No. 13 . . . . . . . . . . . . . . . 390
Factory at Chorzów (Jurisdiction) (1927) PCIJ Ser A No 9 . . . . . . . . . . . . . . . . . . 72
Factory at Chorzów (Merits) (1928) PCIJ Ser A No 17 . . . . . . . . . . . . 72, 91–2, 378, 389
Free Zones of Upper Savoy and the District of Gex (1929) PCIJ Ser A No 22 . . . . . . . . . 10
Interpretation of the Statute of the Memel Territory (1932) PCIJ Ser A/B Nos 47 and 49 . . . . 78
Interpretation of the Treaty of Neuilly (1924) PCIJ Ser A No 4 . . . . . . . . . . . . . . . . 30
Jurisdiction of the Courts of Danzig (1928) PCIJ Ser B No 15. . . . . . . . . . . . . . . . . 72
Jurisdiction of the European Commission of the Danube (1927) PCIJ Ser B No 14 . . . . . . . 40
Mavrommatis Palestine Concessions, Judgment No 2 (1924) PCIJ Ser A No 2 . . . . . . . . 32,
47, 89–91, 94–5, 311–2, 319, 378, 385
Minority Schools in Albania (1935) PCIJ Ser A/B No 64 . . . . . . . . . . . . . 331–3, 335–6
Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4 . . . . . . . . . . 96–7, 158
Oscar Chinn (1934) PCIJ Ser A/B No 63 . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Panevezys-Saldutikis Railway (Estonia v Latvia) (1939) PCIJ Ser A/B No 76 . . . . . . . . . 90–1
Phosphates in Morocco (1938) PCIJ Ser A/B No 74 . . . . . . . . . . . . . . . . . . . . . 72
Railway Traffic between Lithuania and Poland (Advisory Opinion) (1931) PCIJ
Ser A/B No 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
Rights of Minorities in Upper Silesia (Minority Schools) (1928) PCIJ Ser A No 15 . . . . . . 335
Serbian Loans (1929) PCIJ Ser A No 20 . . . . . . . . . . . . . . . . . . . . . . . 32, 89–90
SS ‘Wimbledon’ (UK, France, Italy, Japan, Poland [Intervening] v Germany) (1923)
PCIJ Ser A No 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 71–2, 78, 177
Status of Eastern Carelia (Advisory Opinion) (1923) PCIJ Ser B No 5 . . . . . . . . . . . 15, 17
Greco-Bulgarian ‘Communities’ (1930) PCIJ Ser B No 17. . . . . . . . . . . . . . .330, 334–5
The SS ‘Lotus’ (1927) PCIJ Ser A No 10 . . . . . . . . . . . . . . . . . . . . . . 184, 389–90
Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig
Territory (1932) PCIJ Ser A/B No 44 . . . . . . . . . . . . . . . . . . . . . . . . . 330
Table of Cases xxv
OTHER
A v Ministère public de la Confédération, B and C, dossier no. BB.2011.140, decision of

25 July 2012 (Swiss Fed Crim Ct). . . . . . . . . . . . . . . . . . . . 110, 119, 120, 130
Abbasi v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76 . . . . . 95
Administrative Decision No II (US/Germany) (1923) 7 RIAA 23 . . . . . . . . . . . . . . . 92
Administrative Decision No V (Germany/US) (1924) 7 RIAA 119 . . . . . . . . . . . . . . . 91
Affaire Campbell (UK/Portugal) (1931) 2 RIAA 1145 . . . . . . . . . . . . . . . . . . . . . 92
Affaire Chevreau (France/UK) (1931) 2 RIAA 1113 . . . . . . . . . . . . . . . . . . . . . . 92
Affaire de l’attaque de la caravane du maharao de Cutch (UK/Ethiopia) (1927) 2 RIAA 821 . . . 92
Affaire de l’île de Clipperton (Mexico v France) (1931) 2 RIAA 1105 . . . . . . . . . . . . 169
Affaire des Grisbadarna (Norway/Sweden) (1909) 11 RIAA 147 . . . . . . . . . . . . . 157, 165
Affaire du lac Lanoux (Spain v France) (1957) 12 RIAA 281 . . . . . . . . . . . . . . . . . 356
Aguilar-Amory and Royal Bank of Canada claims (UK v Costa Rica) (1923) 1 RIAA 369 . . . . 92
Al-Adsani v Kuwait (1996) 107 ILR 536 . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Al-Adsani v UK (2001) 123 ILR 24 . . . . . . . . . . . . . . . . . . . . . . . 112, 138, 142
Al-Adsani v UK (2001) 123 ILR 24 (ECtHR (GC)). . . . . . . . . . . . .112, 137–9, 142, 315
Aramco v Saudi Arabia (1958) 26 ILR 167 . . . . . . . . . . . . . . . . . . . . . . . . . 180
Arar v Syria (2005) 127 CRR 2d 252. . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Argentina v Amerada Hess Shipping Corp. 488 US 428 (1989) . . . . . . . . . . . . . . . 137
Argentina/Chile Award (La Laguna del Desierto) (1999) 113 ILR 1 . . . . . . . . . . . . . 167
Argentina/Chile Frontier Award (La Palena) (1966) 38 ILR 10. . . . . . . . . . . . . . . . 167
Austria v Italy (1961) 4 Ybk ECHR 138 (ECnHR) . . . . . . . . . . . . . . . . . . . . . . 39
BE Chattin (US) v Mexico (1928) 4 RIAA 282 . . . . . . . . . . . . . . . . . . . . . . . . 92
Beagle Channel (Argentina v Chile) (1977) 21 RIAA 52 . . . . . . . . . . . . 156, 163, 166–167
Beaumartin v France (1994) 19 EHRR 485 (ECtHR) . . . . . . . . . . . . . . . . . . . . . 96
Blunden v Australia ILDC 207 (AU 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 181
Bouzari v Iran (2002) 124 ILR 427. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Bouzari v Iran (2004) 128 ILR 586. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Camuzzi v Argentina I (Jurisdiction) (ICSID Case No. ARB/03/2) 11 May 2005 . . . . . . . 104
Cass. No. 09-14743 (La Réunion Aérienne v Libyan People’s Socialist Jamahiriya), 9 March
2011, Bull. civ., 2011, I, No. 247 . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Cass. No 47-504 (Grosz v Federal Republic of Germany) 3 January 2006 . . . . . . . . . . 137
Cass. No. 02-45961 (Bucheron v Federal Republic of Germany) 16 December 2003, Bull.
civ., 2003, I, No. 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Cass. No. 03-41851 (Gimenez-Esposito v Federal Republic of Germany) 2 June 2004, Bull.
civ., 2004, I, No. 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Castro, Audiencia Nacional (Plenary) 13 December 2007 (Spain) . . . . . . . . . . . . . . 122
CME v Czech Republic (Merits) 9 ICSID Rep 121 . . . . . . . . . . . . . . . . . . . . . 103
CMS v Argentina (Jurisdiction) (ICSID Case No ARB/01/8) 17 July 2003 . . . . . . . . . . 103
Coard et al v US Judgment of 29 September 1999 (IACtHR) . . . . . . . . . . . . . . . . . 49
Colombia-Venezuela Boundary Dispute (1922) 1 RIAA 223 . . . . . . . . . . . . . . . . . 163
Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern
Pacific Ocean (Chile/European Union) 2009/1 (Order Removing from List)
16 December 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Constitutional Court of Slovenia AA, Up-13/99, 8 March 2001 . . . . . . . . . . . . . . . 133
DCR v FG Hemisphere Associates LLC (No. 1) (2011) 147 ILR 376 (CFA HKSAR). . . . . 112
Delimitation of the Continental Shelf between the United Kingdom of Great Britain and
Northern Ireland and the French Republic (1977) 28 RIAA 3. . . . . . . . . . . . . . 180
Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of
Bengal (Bangladesh/Myanmar) (Judgment) 14 March 2012 . . . . . . . . . . . . . 180, 189
Dubai/Sharjah (1993) 91 ILR 543 . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 156
xxvi Table of Cases
EC Measures concerning Meat and Meat Products (Hormones), AB WTO Report
(16 January 1998) WT/DS26/AB/R . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Effect of Reservations on the Entry into Force of the American Convention on Human Rights
(Arts 74 and 77) (Advisory Opinion) OC-2/82 of 24 September 1982, Ser A,
No 2 (IACtHR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Emergia SA v Ministry of Economy and Finance and the National Customs Bureau ILDC 596
(PE 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Eritrea/Ethiopia (2002) 130 ILR 1 . . . . . . . . . . . . . . . . . . . . . . . 157, 166–7, 171
Eritrea/Ethiopia (2006) 45 ILM 430 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Eritrea/Yemen (Phase One: Territorial Sovereignty) (1999) 114 ILR 1 . . . . . 154, 157, 166, 168
Fang v Jiang (2006) 141 ILR 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Ferrini v Germany (2004) 128 ILR 658 . . . . . . . . . . . . . . . . . . . . . 140, 144, 146
FILT-CGIL Trento v US (2000) 128 ILR 644 . . . . . . . . . . . . . . . . . . . . . . . 133
Finnish Shipowners against Great Britain in respect of the use of certain Finnish vessels during
the war (Finland/UK) (1934) 3 RIAA 1479 . . . . . . . . . . . . . . . . . . . . . . . 92
Fogarty v UK (2001) 123 ILR 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
FW Flack, on behalf of the estate of the Late DL Flack (UK) v Mexico (1929) 5 RIAA 61 . . . 91
Gaddafi (2001) 125 ILR 490 (Fr CoC) . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Germany v Autonomous Province of Voiotia ILDC 1815 (IT 2011) . . . . . . . . . . . . . 140
Germany v Mantelli ILDC 1037 (IT 2008). . . . . . . . . . . . . . . . . . . . . . . . . 140
Gorzelik et al. v Poland (Application no 44158/98) Judgment of 17 February 2004
(ECtHR (GC)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
Greek Citizens v Germany (2006) 135 ILR 186. . . . . . . . . . . . . . . . . . . . . . . 137
Greek Citizens v Germany (Distomo Massacre Case) (2003) 129 ILR 556 . . . . . . . . 133, 137
Hashemi v Iran (2012) QCCA 1449 (Quebec C of A) . . . . . . . . . . . . . . . . . . . 132
Holland v Lampen-Wolfe (2000) 119 ILR 367 . . . . . . . . . . . . . . . . . . . . . . . 133
Iran v Hashemi (2012) QCCA 1449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Ireland v UK (1978) 2 EHRR 25 (ECtHR). . . . . . . . . . . . . . . . . . . . . . . . . . 39
Isayeva, Yusupova and Bazayeva v Russia (Application nos 57947/00, 57948/00 and
57949/00) Judgment of 24 February 2005 (ECtHR) . . . . . . . . . . . . . . . . . . . 48
Island of Palmas (Netherlands v US) (1928) 2 RIAA 829 . . . . . . 33, 37, 151–152, 155, 157,
159, 168–169
Italy v Djukanović ILDC 74 (IT 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Italy v Milde ILDC 1224 (IT 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (2006) 129 ILR 629
(UKHL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 130, 137, 146
Judgment n. 32139 of 30 May 2012, rendered 9 August 2012, Fr CoC
(First Criminal Section) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Jurado v ILO (No 1) (1970) 40 ILR 296 . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Kadi v Council and Commission [2005] ECR II-3649 . . . . . . . . . . . . . . . . . . . . 46
Kalogeropoulou and Others v Greece and Germany (2002) 129 ILR 537 . . . . . . 112, 138, 142
Kate A. Hoff, Administratrix of the Estate of Samuel B. Allison, Deceased (US) v Mexico
(1929) 4 RIAA 444. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Kennedy v Trinidad and Tobago (No 845/1999) (UN Doc CCPR/C/67/D/845/1999)
(UNHRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Khurts Bat v Investigating Judge of the German Federal Court (2011) 147 ILR 633 . . . . . 119
Kircaoglu and Sanaga ILDC 1635 (IT 2010) . . . . . . . . . . . . . . . . . . . . . . . . 181
Kuwait Airways Corporation v Iraq and Bombardier Aerospace (2010) 147 ILR 303 (CanSC) . 113
Landreau claim (US/Peru) (1921) 1 RIAA 347 . . . . . . . . . . . . . . . . . . . . . . . . 92
Lauder v Czech Republic (Merits) 9 ICSID Rep 66 . . . . . . . . . . . . . . . . . . . . . 103
Letelier v Chile (1980) 63 ILR 378. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Littrell v US (No 2) (1995) 100 ILR 438 . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Loizidou v Turkey (Preliminary Objections) (1995) 102 ILR 662 ECtHR (GC) . . . . . . . . 44
Table of Cases xxvii
Loizidou v Turkey (Merits) 40/1993/435/514 (28 November 1996) (ECtHR) . . . . . . . . . 49
Lozano ILDC 1085 (IT 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Mara’abe et al v The Prime Minister of Israel et al (Supreme Court Sitting as the High
Court of Justice) [2005] HCJ 7957/04 (<http://elyon1.court.gov.il/Files_ENG/04/
570/079/A14/04079570.A14.HTM> (accessed 17 May 2013)) . . . . . . . . . . . . . 292
Margellos v Germany (2002) 129 ILR 525 . . . . . . . . . . . . . . . . . . . . 133, 137, 140
Maria Guadalupe A Vve Markassuza, Sentence No 38 (unpublished), French-Mexican Claims
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Matthews v UK (1999) 28 EHRR 361 (ECtHR) . . . . . . . . . . . . . . . . . . . . . . . 39
McElhinney v Ireland (2001) 123 ILR 73 . . . . . . . . . . . . . . . . . . . . . . . 112, 134
McElhinney v Williams and Her Majesty’s Secretary of State for Northern Ireland (1995)
104 ILR 691 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133–134
Minnie Stevens Eschauzier (UK) v Mexico (1931) 5 RIAA 207 . . . . . . . . . . . . . . . . 91
Natoniewski v Germany (2010) 30 Polish YIL 299 . . . . . . . . . . . . . . . . . . . . . 137
NML Capital Limited v Argentina (2011) 147 ILR 575 (UKSC). . . . . . . . . . . . . . . 113
North American Dredging Company of Texas (US) v Mexico (1926) 4 RIAA 26 . . . . . . . . 93
Prefecture of Voiotia v Germany (Distomo Massacre Case) (2002) 129 ILR 513 . . . . . 132, 140
Presbyterian Church of Sudan et al v Talisman Energy, Inc 582 F 3d 244 (US Ct of Apps,
2nd Cir, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Princz v Germany 26 F.3d 1166 (DC Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . 137
Prosecutor v Akayesu ‘Judgment’ (Trial Chamber) (2 September 1998) ICTR-96-4-T
(ICTR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Prosecutor v Delalić et al ‘Judgment’ (Appeals Chamber) (20 February 2001) Case IT-96-21
(ICTY) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Prosecutor v Dusko Tadić ‘Judgment’ (Appeal Chamber) (15 July 1999) IT-94-1-A (ICTY) . . . 85
Prosecutor v Dusko Tadić ‘Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction’ (Appeal Chamber) (2 October 1995) IT-94-1-AR72
(ICTY) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 282, 296–7
Prosecutor v Krstić ‘Judgment’ (Trial Chamber) (2 August 2001) IT-98-33-T (ICTY). . . . 345–6
Prosecutor v Kupreškić et al ‘Judgment’ (Trial Chamber) (14 January 2000) IT-95-16-T
(ICTY) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
Prosecutor v Popović et al ‘Judgment’ (Trial Chamber) (10 June 2010) IT-05-88-T
(ICTY) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Prosecutor v TP ILDC 1498 (GR 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 118
R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 1) (1998)
119 ILR 50 (UKHL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3)
(1999) 119 ILR 135 (UKHL) . . . . . . . . . . . . . . . . . . . . . . . . 121, 130, 146
Rainbow Warrior (New Zealand/France) (1990) 20 RIAA 215 . . . . . . . . . . . . . . . 50
Rann of Kutch (India/Pakistan) (1968) 17 RIAA 1 . . . . . . . . . . . . . . . . 154, 163, 166
Re Barak City of Westminster Magistrates’ Court, 29 September 2009, unreported . . . . 119, 123
Re Bo Xilai (2005) 128 ILR 713 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 123
Re Gorbachev, City of Westminster Magistrates’ Court (D Wickham, Deputy Senior District
Judge) 30 March 2011, unreported . . . . . . . . . . . . . . . . . . . . . . . 111, 123
Re Maritime Union of Australia ex p CSL Pacific Shipping Inc ILDC 204 (AU 2003) . . . . 181
Re Mofaz (2004) 128 ILR 709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 122
Re Sharon and Yaron (2003) 127 ILR 110 (Belg CoC) . . . . . . . . . . . . . . . . . 117, 122
Reference Re Secession of Quebec (1998) 161 DLR (4th) 385 . . . . . . . . . . . 162, 172–173
Republic of Austria and Others v Altmann (2004) 147 ILR 681 (USSC) . . . . . . . . . . . 112
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area (Advisory Opinion) 1 February 2011 . . . . . . . . . . . . . . . 180
Rwanda Audiencia Nacional (Central Examining Magistrate No 4) 6 February 2008 (Spain). . 122
Salem (Egypt/US) (1932) 2 RIAA 1163 . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
xxviii Table of Cases
Samantar v Yousuf (2010) 147 ILR 726 (USSC) . . . . . . . . . . . . . . . . . . . . . . 145
Schreiber v Canada (Attorney General) 2002 SCC 62 . . . . . . . . . . . . . . . . . . . . 132
Shufeldt claim (Guatemala/US) (1930) 2 RIAA 1079 . . . . . . . . . . . . . . . . . . . . . 92
Siderman de Blake v Argentina 965 F.2d 699 (9th Cir. 1992) . . . . . . . . . . . . . . . . 137
Siemens v Argentina (Jurisdiction) (ICSID Case No ARB/02/8) 3 August 2004. . . . . . . . 103
Smith v Libya 101 F.3d 239 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 137
Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (2000) 39 ILM 1359
(AT UNCnLOS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SS ‘I’m Alone’ (Canada/US) (1933 and 1935) 3 RIAA 1609 . . . . . . . . . . . . . . . . . 180
State of Missouri v Holland 252 US 416, 433 (1920) . . . . . . . . . . . . . . . . . . . . . 40
Sunbolf v Alford (1838) 3 M and W 218 . . . . . . . . . . . . . . . . . . . . . . . . . . 389
Thatchell v Mugabe (2004) 136 ILR 572 (Eng MagCt) . . . . . . . . . . . . . . . . . . . 122
The ‘Kronprins Gustaf Adolf ’ (Sweden/US) (1931) 2 RIAA 1239 . . . . . . . . . . . . . . . 92
The Death of James Pugh (UK/Panama) (1933) 3 RIAA 1439 . . . . . . . . . . . . . . . . . 92
The Hague City Party and others v Netherlands ILDC 849 (NL 2005). . . . . . . . . . . . 122
Total SA v Argentina (Preliminary Objections) (ICSID Case No ARB/04/01) 25 August
2006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Trail Smelter (US v Canada) (1938 and 1941) 3 RIAA 1905 . . . . . . . . . 356, 359–360, 373
United States: Import Prohibition of Certain Shrimp and Shrimp Products AB WTO Report
(12 October 1998) WT/DS58/AB/R . . . . . . . . . . . . . . . . . . . . . . . . . . 42
US v Jho and Overseas Shipholding Group Inc 534 F 3d 398 (5th Cir 2008); ILDC 1068
(US 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Wijngaarde et al v Bouterse (2000) 3 YIHL 677 (District Court of Amsterdam,
20 November 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 128
Yousuf et al v Samantar United States Court of Appeals for the Fourth Circuit, Appeal
No 11-1479, 2 November 2012. . . . . . . . . . . . . . . . . . . . . . . . . . 145–146
Yousuf et al v Samantar United States District Court for the Eastern District of Virginia,
Civil Action No. 1:04 CV 1360 (LMB), Order (Leonie M Brinkema, District Judge), 15
February 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Yusuf & Al Barakaat International Foundation v Council and Commission [2005]
ECR II-3533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Zhang v Jiang (2008) 141 ILR 542. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Zhang v Jiang (2010) 148 ILR 555. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
PART I
PROLOGUE
1
General Introduction
Christian J Tams and James Sloan
In his revised edition of The Development of International Law by the International

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

2 Lauterpacht (n 1).
3 H Lauterpacht, The Development of International Law by the Permanent Court of International
Justice (London/New York/Toronto: Longmans Green and Co., 1934).

4 C de Visscher, Theory and Reality in Public International Law (translated by PE Corbett,
Princeton: PUP, 1968) 390.

5 M Shahabuddeen, Precedent in the World Court (Cambridge: Grotius Publications, 1997) 68.
4 The Development of International Law by the ICJ
international judicial bodies] is not just a collateral side effect of adjudicatory
practice.’6
These statements represent one strand of thinking about international courts and
tribunals. Others have taken a more restrictive view of the international judicial
function: one that emphasizes the dispute settlement dimension of adjudication
and plays down its impact on the process of legal development (or treats it as a
collateral side effect).7 In fact, the ICJ itself has—like other courts and tribunals—
frequently emphasized that it had no power to ‘legislate’, doing so most clearly in
the Nuclear Weapons opinion, where it restated the ‘orthodoxy’8 in the following
terms:
It is clear that the Court cannot legislate, and, in the circumstances of the present case, it is
not called upon to do so. Rather its task is to engage in its normal judicial function of
ascertaining the existence or otherwise of legal principles and rules applicable to the threat or
use of nuclear weapons.9
Perhaps this was but another instance of ‘a lady that protests too much’;10 yet it is
difficult to deny that the underlying concern not to be seen as a legislator has
regularly made itself felt during the nine decades of ICJ and PCIJ jurisprudence.11
Perhaps, as one recent study suggests, international courts are at best ‘reluctant
lawmakers’?12
International scholarship on these issues is rich and diverse, but quite unbal-
anced. As the preceding quotations suggest, the big conceptual debate on whether
courts should, or could legitimately, ‘make law’ began early on, and has never really
ebbed away. Amongst other things, commentators have approached it from the
perspective of sources,13 of precedent (proper or persuasive),14 or of judicial
activism;15 have sought to draw distinctions between (acceptable, unavoidable)
6 A von Bogdandy and I Venzke, ‘Beyond Dispute: International Judicial Institutions as Law-
makers’ (2011) 12 German LJ 979, 981.

7 As von Bogdandy and Venzke (n 6), observe, this is implicit in the typical structure of textbooks:
‘Many textbooks of international law present international courts and tribunals, usually towards the
end of the book in the same chapter with mediation and good offices, simply as mechanisms to settle
disputes’ (982).
8 A Boyle and C Chinkin, The Making of International Law (Oxford: OUP, 2007) 268.
9 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 237, para 18.
10 See Boyle and Chinkin (n 8) 268.
11 See also Dissenting Opinion of Judge Read, Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania (Second Phase) [1950] ICJ Rep 221, 244; Dissenting Opinion of Judge Gros,
Continental Shelf (Tunisia/Libya) [1982] ICJ Rep 18, 152. For many more references see Shahabudd-
een (n 5) 67–96.
12 D Terris, CPR Romano, L Swigart, The International Judge (Oxford: OUP, 2007) 129.
13 See eg GJH van Hoof, Rethinking the Sources of International Law (Deventer: Kluwer, 1983)
169–76; Nawab, ‘Other Sources of International Law. Are Judicial Decisions of the International
Court of Justice a Source of International Law?’ (1979) 19 Indian JIL 526.
14 V Roeben, ‘Le précédent dans la jurisprudence de la Cour internationale’ (1989) 32 German YIL
382; Shahabuddeen (n 5); RY Jennings, ‘The Judicial Function and the Rule of Law in International
Relations’ in Le droit international à l’heure de sa codification; études en l’honneur de Roberto Ago (Milan:
Giuffré, 1987) vol 3, 139.
15 F Zarbiyev, ‘Judicial Activism in International Law—A Conceptual Framework for Analysis’
[2012] 3 JIDS 247; Terris et al (n 12) 121 et seq.

General Introduction 5
legal development and (impermissible) law-making;16 and have sought to assess the
legitimacy of court decisions as a form of international public authority.17 The
conceptual aspect of the debate is clearly well-covered.
At the other end of the spectrum, there is no shortage of specific case studies
either: many have sought to trace how particular aspects of ICJ decisions—among
them pronouncements on treaty reservations,18 on maritime delimitation,19 or on
obligations erga omnes,20 to name just a few of the ‘usual suspects’—have shaped or
modified specific aspects of international law.21 There is a rich body of ‘micro-
history’ exploring the impact of particular ICJ pronouncements.
The present book does not intend to duplicate the existing analysis. It seeks to
chart, and occupy, the middle-ground between the conceptual and the specific. It
comprises a series of ‘field studies’ that analyse the influence of ICJ decisions on
broadly-defined areas of international law such as human rights law, state responsi-
bility, the law of the sea, jurisdictional immunities, the law of treaties, etc. In none
of these areas has the ICJ singlehandedly ‘made law’ for the international commu-
nity (which is why the term ‘law-making’ is avoided22), but all of these have in some
way been affected by its jurisprudence. The purpose of the subsequent chapters,
and of the book as a whole, is to identify and evaluate the ICJ’s main contributions.
The focus throughout is on the actual impact of the Court’s pronouncements;
conceptual debates about whether the ICJ ‘should’ make law are not rehearsed in
any detail. At the same time, the analysis moves beyond the level of micro-history:
specific ICJ pronouncements are assessed, but the analysis proceeds from broadly-
defined areas of international law and seeks to provide a general account of the ICJ’s
influence on the development of those defined areas.
16 But cf A Pellet’s refreshingly clear perspective: ‘I would suggest that you will name “legislation” a
legal reasoning you disapprove of but you will call that same reasoning “progressive development”
when you favor it’: ‘Shaping the Future of International Law: The Role of the World Court in Law-
Making’ in M Arsanjani et al (eds), Looking to the Future. Essays on International Law in Honor of
W. Michael Reisman (The Hague: Martinus Nijhoff, 2010) 1065, 1075.
17 von Bogdandy and Venzke (n 6); A von Bogdandy and I Venzke, ‘On the Democratic
Legitimation of International Judicial Lawmaking’ (2011) 12 German LJ 1341; as well as the

contributions to A von Bogdandy et al (eds), The Exercise of Public Authority by International Insti-
tutions. Advancing International Institutional Law (Berlin/Heidelberg: Springer, 2010).
18 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide
(Advisory Opinion) [1951] ICJ Rep 15, 22–4.

19 See eg North Sea Continental Denmark; Germany/Denmark; Germany/Netherlands) [1969] ICJ
Rep 3.
20 Barcelona Traction, Light, and Power Company, Limited (Belgium v Spain) (Second Phase) (Merits)
[1970] ICJ Rep 3, 32–3, paras 33–4.

21 These and other ‘classics’ are discussed frequently: see eg Pellet in Essays Reisman (n 16);
M Lachs, ‘Some Reflections on the Contribution of the International Court of Justice to the
Development of International Law’ (1983) 10 Syracuse JICL 239; CJ Tams and A Tzanakopoulos,
‘Barcelona Traction at 40: The ICJ as an Agent of Legal Development’ (2011) 23(4) Leiden JIL 781.
22 In scholarship, the term ‘judicial law-making’ is used with some flexibility though: it is often
employed in a more open way, denoting eg ‘the generation of legal normativity by international courts
that creates, develops, or changes normative expectations’, mindful that in ‘generating normativity’,
international courts and tribunals are not unconstrained: see von Bogdandy and Venzke (n 6) 988; and
similarly Shahabuddeen (n 5) 67–96; Boyle and Chinkin (n 8) 263–312. Even that more flexible use of
terminology however seems to suggest a leading role for the Court, which in our view underplays how
much it acts within the established system of sources.
Because of this focus, we hope the book provides a nuanced assessment of the
Court’s impact on contemporary international legal development: one that pro-
ceeds from the law in force in particular areas and that retraces the extent to which
existing legal regimes have been shaped by ICJ decisions. As the areas under review
are broad, the perspective chosen is typically fairly wide. But precisely for that
reason, we believe the assessment can offer a detailed and balanced account of the
ICJ’s relevance as (in the words of Sir Franklin Berman) an ‘agent of legal
development’.23 Crucially, this account draws on a rich body of evidence.
While not covering international law in its entirety, the inclusion of thirteen
detailed field studies—addressing well-established areas of the discipline and
grouped into six substantive parts for reasons of convenience—means that a ‘critical
mass’ of information is ‘processed’. Taken together, the field studies not only
present a comprehensive analysis of the Court’s impact, but allow us to address
important questions that the academic debate, despite its breadth, has hardly begun
to tackle. Do ICJ decisions affect particular areas of international law to a particular
extent; and if so: which, and why? What is the Court’s relative influence on legal
development, as compared to other law-development processes such as treaty-
making, international practice, International Law Commission studies, etc? Is it
possible to identify ‘factors of success’24 that explain why particular decisions have
influenced legal development, whereas others have not? What are the techniques by
which the Court contributes to the process of legal development? In raising and
addressing these questions, we hope the book can contribute to a better under-
standing of the process of international legal development, and of the ICJ’s role
in it.
23
See the title of Sir Franklin Berman’s contribution to this volume.
See N Petersen, ‘Lawmaking by the International Court of Justice—Factors of Success’ (2011)
24
12 German LJ 1295.
2
The International Court of Justice as an
‘Agent’ of Legal Development?*
Sir Franklin Berman KCMG QC
1. Introduction
It is a privilege to have been asked to start off this thoroughly commendable

collection of essays on so important a topic. My title is ‘The International Court
of Justice as an “Agent” of Legal Development’—but followed by a big question
mark. The question mark is not there as a token of scepticism. Its function is as an
indicator that the title signifies a hypothesis, one to be examined and tested, but
above all to be explained. As to the validity of the hypothesis itself, I have an open
mind. Its importance, though, to an audience of lawyers can’t be questioned, since
it sets so much of the framework for our expectations towards the International
Court of Justice (ICJ, or ‘the Court’), and for how we assess the Court’s achieve-
ment. Statesmen, diplomats, and students of international relations (to the extent
that this last group thinks about the subject at all, which one sometimes doubts)
view the ICJ as an institution for settling disputes. Lawyers, on the other hand, are
interested, as technicians, in structure, process, and procedure, and how these feed
into good decision-making;1 but most of all, what the legal audience focuses on is
the influence of the ICJ on the system of substantive law.2 And here I use ‘influ-
ence’ in its widest possible connotation, one which is not synonymous with
‘development’ because it goes wider still.
In order to think about the Court as an agent of change or an agent of
development, you have of course to think about both intention and effect: what
was the institution intended to be and to do?, and what has actually happened? In
* This contribution is based on the first in a series of lectures on the Court’s influence on the
development of international law. The author delivered the lecture at the University of Glasgow,
18 November 2009.
1 Two of the most substantial works on the World Court are in fact commentaries primarily on its
procedure: see S Rosenne, The Law and Practice of the International Court 1920–2006 (Dordrecht:
Martinus Nijhoff, 4th edn 2006); and A Zimmermann, C Tomuschat, K Oellers-Frahm and CJ Tams
(eds), The Statute of the International Court of Justice: A Commentary (Oxford: OUP, 2nd edn 2012).
2 GG Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge: Grotius
Publications, 1986), and, for the period until 2011, H Thirlway, The Law and Procedure of the
International Court of Justice, Fifty Years of Jurisprudence (Oxford: OUP, 2013).
fact, as I see it, the investigation falls into three stages, not two; there is a middle
stage between the intention and the effect, a middle stage of cardinal importance,
namely what the Court itself has been doing in the exercise of the functions it was
endowed with. In other words, the investigation requires one to look first at what
the negotiators thought and expected they were doing in setting up a standing
world court; then at what the Court has done, which means primarily the corpus of
its published judgments and decisions; and only then at the effects on the legal
landscape.
Each of those three stages is a topic in its own right, and each of them will weave
its fibres through the subsequent detailed contributions to the book. All I can hope
to do is to set something of a framework. My illustrations will therefore be
somewhat sparse, and designed chiefly to point up the themes rather than fill in
their content. The meat will come in the contributions that follow.
2. Legislative intent
Let me begin with a very general point, one that was already implicit in the use of
the term ‘world court’. This is a term that was coined some years ago and helps to
bring under one roof both the ICJ and its predecessor, the Permanent Court of
International Justice (PCIJ).3 The justifications for doing so are well known: the
seamless transition in time between the death of the old Court and the birth of the
new; the fact that the Statutes of the two Courts are virtually identical as to their
substantive content, and indeed the UN Charter says in terms that the ICJ’s Statute
is ‘based on’ that of the PCIJ;4 the way in which the ICJ has from its inception
regularly cited the judgments of the PCIJ on the same footing as its own;5 and the
explicit transfer to the new Court of jurisdictional commitments undertaken by
states in respect of the old Court both by statute6 and (as occasion has arisen) by
express determination of the ICJ.7 What I would like to draw attention to in this
discussion, however, as more pertinent still to my analysis, are two other elements
of continuity that are not so frequently noted, namely: the famous Article 38
(laying down the sources of the law the World Court is to apply), and the
3 The term is used extensively in legal scholarship to cover both courts: see eg M Shahabuddeen,
Precedent in the World Court (Cambridge: Grotius Publications, 1997); R Falk, Reviving the World
Court (Charlottesville: UPV, 1986); E McWhinney, The World Court and the Contemporary Inter-
national Law-Making Process (Alphen aan den Rijn: Sijthoff & Noordhoff, 1979). Google is certainly
in no doubt as to what the term currently refers to.
4 Art 92 of the UN Charter.
5 From its very first judgment, in Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4, 24, the
Court expressly referred to the views expressed by the PCIJ in Competence of the ILO to Regulate
Incidentally the Personal Work of the Employer (Advisory Opinion) (1926) PCIJ Ser B No 13, 19, and in
Free Zones of Upper Savoy and the District of Gex (1929) PCIJ Ser A No 22, 19, with regard to similar
questions of interpretation.
6 The transitional clause in Art 37 of the ICJ Statute provides that whenever a convention or treaty
provides for reference of a matter to the PCIJ, the matter shall be referred to the new Court.
7 See Military and Paramilitary Activities (Nicaragua v USA) ( Jurisdiction and Admissibility) [1984]
ICJ Rep 392.

The ICJ as an ‘Agent’ of Legal Development? 9
institution of advisory opinions alongside contentious state-to-state proceedings.

The first, Article 38, was taken over with only a minor, and largely inconse-
quential, change to the introductory phrase, following a conscious decision by the
Washington Committee of Jurists not to undertake any revision of its substance.8
As regards the second, the advisory opinion procedure, the legislative pedigree is not
quite so even,9 but all that matters for present purposes is that the system for
requesting advisory opinions had already been introduced by the Covenant of the
League of Nations, and its essential features have remained the same mutatis
mutandis since then. The same continuity appears strongly in the contents of the
Rules of the two Courts, and in a continuity of working method, notably in the
ICJ’s deliberative process.10
These elements of continuity (there are others as well) are not singled out for
their own sake, but to make the point that, if one begins as I have suggested by
examining the legislative intent (what kind of institution the negotiators thought
and expected they were setting up), then you have to go to 1920, not to 1945.
Though there is—as one can see from Ole Spiermann’s Historical Introduction to
the Commentary on the ICJ Statute11—a respectable argument for saying that
there is in fact a continuous line of development starting earlier still, with the
Hague Conventions and the Permanent Court of Arbitration (PCA) established
under them. However that may be, the major step change introduced in 1920 with
the creation of the PCIJ was the introduction of a standing tribunal of fixed
composition, and its denomination moreover as a court.12 And then, at the second
defining moment a quarter of a century later, when the question was how to design
the architecture of the new and qualitatively different United Nations Organiza-
tion, the conscious decision taken in the judicial field was in favour of continuity—
a continuity so strong as to amount to virtual identity. Continuity, not reform. The
only substantial change was in fact the organic link forged with the new inter-
national organization, embodied in Chapter XIV of the Charter, with its opening
salvo that the ICJ was to be the ‘principal judicial organ’ of the new organization,
and in consequence that the ICJ Statute was to be an ‘integral part of ’ the UN
8 The Informal Inter-Allied Committee thought that Art 38 had ‘worked well in practice and its
retention is recommended’ (UNCIO records, vol XIV, 435). The change is the reference to the
mission of the Court, ‘whose function is to decide in accordance with international law such disputes as
are submitted to it’, in its opening paragraph (see UNCIO, vol XIII, 284, 392).
9 The original Statute of the Permanent Court did not expressly provide for the giving of advisory
opinions, the prevailing view being that Art 14 of the Covenant of the League of Nations did not
require more than details of procedure to become operative: see Documents concerning the Action taken
by the Council of the League of Nations under Article 14 of the Covenant (1921), 211. In 1929, when the
PCIJ Statute was revised, Arts 72–4 of the Court’s Rules, on the giving of advisory opinions, were
introduced into the Statute as Arts 65–7. These Articles were modified in the ICJ Statute, in order to
accommodate the Court’s organic connection to the United Nations, and to reflect the wording of the
Charter better.
10 Though equally recent years have seen some useful development in these fields.
11 Zimmermann et al (n 1) 41–3.
12 MO Hudson, The Permanent Court of International Justice, 1920–1942 (New York: Macmillan,
1943) 103, describes how the very name ‘Permanent Court’ was a point of controversy. The PCA was,
of course, a ‘Court’ of a wholly different kind.
Charter, and thus amendable only by the same process as the Charter.13 Quite how
to assess the consequences of the ‘organic’14 link (of the Court being now the
‘principal judicial organ’) has become one of those perennial conundrums to which
it always seems too early to hazard an answer.15 But the organic legal bond between
the Statute and the Charter has had the clear and demonstrable effect of making the
ICJ Statute for all practical purposes unamendable, and the Court itself has never
made use of the power of initiative granted to it under Article 70 of the Statute (the
unedifying little spat in the 1960s over its working conditions in The Hague
serving as the sole exception).16
All of the above combines to establish that the ‘founding intent’ remains intact,
namely to have an institution of the same essential kind as the one first conceived in
1920. Moreover, had one posed the central question to those who took the
decisions in 1920, I don’t think it requires any demonstration that the same answer
would have come from the lawyers who proposed as from the diplomats and
politicians who pronounced. To go back to the alternative views I sketched out
earlier, this was to be an institution for settling disputes, and by doing so it was to
contribute to world peace. Any development of the substantive system of law would
follow as a by-product of that process, but not as an essential aim in its own right,
although there are traces of a contrary view17 in the early days of the PCIJ.
3. The World Court’s approach

With that as background, let us move on to the second part of the analysis, a much
more difficult one, namely to assess what the ICJ has actually done in fulfilment of
its mandate. Or, to put the question another way, how the Court could be said,
overall, to have approached its function, bearing in mind as we do that the ICJ, like
all courts, is a reactive organ; it has no programme of its own, but exists to handle
such cases as the chance winds of external happenings blow before it.
To do so, as indicated, is not easy. It entails forming some sort of overview of
what is by now a very substantial corpus of judicial practice. It entails keeping one’s
eye fixed as firmly as possible on the centre ground, and avoiding being unduly
influenced by the strong profile of individual judges who might be most vocal (in a
written sense!) both on the Bench and extra-judicially; not being uninfluenced by
them, but not being unduly influenced.18 It entails, in turn, being forced into quite
13 Art 92 of the Charter.

14 Cf L Gross, ‘The International Court of Justice and the United Nations’ (1967–I) 120 Recueil des
Cours 313, 320.
15 For example, on the institutional relationship between the Court and the Security Council. Cf
Lockerbie (Libya v UK ) (Provisional Measures Order) [1992] ICJ Rep 3 (Preliminary Objections)
[1998] ICJ Rep 9, and Order of 10 September 2003 (<http://www.icj-cij.org/docket/files/89/7247.
pdf> (accessed 17 May 2013)) (and the parallel case against the USA).
16 W Karl in ‘Article 70’, in Zimmermann et al (n 1) 1706.
17 As vigorously advocated by Sir Hersch Lauterpacht.
18 See the remarks of Sir Robert Jennings, former President of the ICJ, on the function of individual
opinions: RY Jennings, ‘The Collegiate Responsibility and the Authority of the International Court of
large assumptions about collegiate attitudes, and about continuity in that respect
from the past to the present, and its hypothetical projection into the future.19
Subject to all those reservations, my own estimate—and it is just an estimate;
others may size the material up differently—is that, in handling the ebb and flow of
contentious cases brought before it, the ICJ has been essentially conservative. It
has seen its task as being to produce a fair and objective reasoned solution to
the particular dispute in front of it, constructed in such a way as to maximize the
prospects of its judgment being complied with, rather than as being to seize the
opportunity to shape or develop the law. The classic utterance is that of the Court
itself in the Icelandic Fisheries cases: ‘the Court, as a court of law, cannot render
judgment sub specie legis ferendae, or anticipate the law before the legislator has laid
it down.’20 To be fair, that much-quoted phrase was preceded by ‘In the circum-
stances’, and by ‘circumstances’ the Court meant that fishery limits and fisheries
conservation were at that very moment under negotiation in the Third United
Nations Conference on the Law of the Sea (a factor to which I will return later). But
it is also surely the case that the Court was not saying merely, We will not grant the
litigant21 a right that is not yet established in law; wasn’t it also saying, We do not
propose to throw our judicial weight into the scales so as to influence the outcome of
those negotiations? Even in those cases (and I will be coming to them as well later
on) where the analysis by the ICJ of the legal rules governing the case before it has
had a profound influence on the course of the law, this has been a by-product of
the Court’s settlement of the case, not an end in itself. I have seen no evidence
whatsoever in my diplomatic life that the states appearing as parties in those cases—
irrespective of whether they liked or disliked the decision delivered by the Court on
their dispute—felt that they had been lured into a laboratory cage to serve as
subjects in a live experiment in the development of the law, rather than remaining
the recipient of the Court’s pronouncement (for good or ill) on the rights and
obligations in force between them and the opposing party to the dispute.
More difficult, though, is to assess a tendency that has become noticeable in the
Court’s judgments over the last twenty-five years or so—one that has become more
marked as the Court’s docket has expanded—to settle for a terse logical formalism
which may or may not have weakened the overall legal reasoning but has quite often
left an unreasoned gap between the terminal point of the detailed argument and the
Court’s final conclusions. How to rank the effect of this tendency as between a
different form of judicial conservatism or, on the other hand, a teleological
approach towards what represents established law is far from straightforward, and
may vary from one case to another.
Justice’ in Y Dinstein (ed), International Law at a Time of Perplexity: Essays in Honour of Shabtai
Rosenne (Dordrecht: Martinus Nijhoff, 1989) 350.
19 H Thirlway, ‘The Drafting of ICJ Decisions: Some Personal Recollections and Observations’
(2006) 5 Chinese JIL 15, provides valuable insights into the drafting process based on the actual
practice of the Court, rather than mere conjecture.
20 Fisheries Jurisdiction (UK v Iceland) and (Germany v Iceland) (Merits) [1974] ICJ Rep 3, 23–4
and 175, 192.

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

I come, however, at this point to two further elements that have a certain relevance
in this context. One of them is the separate and dissenting opinions that almost
invariably accompany a judgment or reasoned order of the Court. A commonly
painted picture is that, while the orders and judgments of the Court stay within the
straight and narrow, you can look to the individual opinions for a more or less
authoritative influencing of the current of future development.23 While I can
follow the argument that the individual opinions, with their fuller and more fluent
reasoning, can be a good source for understanding the more obscure or Delphic
passages of the full Court’s judgment, I entertain a healthy dose of scepticism as to
whether the individual opinions do really represent an effective and accepted engine
for shaping the future law. On the one hand there is the matter (delicately put) of
judicial overkill—which we seem to be getting an increasing amount of, and the
22 For a forceful recent reiteration of the principle see Armed Activities on the Territory of the Congo
(New Application: 2002) (DRC v Rwanda) ( Jurisdiction and Admissibility) [2006] ICJ Rep 6, para 88,
recalled, with approval, in Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v Russia) (Preliminary Objections) Judgment of 1 April 2011 (<http://
www.icj-cij.org/docket/files/140/16398.pdf> (accessed 17 May 2013)), para 131.
23 A point sometimes made by individual judges themselves, though self-justification cannot of
itself amount to self-validation: thus, Separate opinion of Judge Fitzmaurice in Barcelona Traction,
Light and Power Company, Limited (Belgium v Spain) (Second Phase) (Merits) [1970] ICJ Rep 3, 65
(judicial pronouncements are ‘the principal method by which the law can find some concrete measure
of clarification and development’); Dissenting Opinion of Judge Jessup in South West Africa (Ethiopia v
South Africa; Liberia v South Africa) (Second Phase) [1966] ICJ Rep 6, 325–6 (‘dissent in a court of last
resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later
decision may possibly correct the error into which the dissenting judge believes the court to have been
betrayed’).
more of it we get, the greater the overkill. On the other hand, there is the fact—
once again I try to put it delicately—that the individual opinions tend to generate
more excitement among the professoriate than they do in the hard, cold world. The
ICJ itself never cites them directly (I can think of only one instance when it has
done so24), and it doesn’t take much imagination to try to think yourself into the
unenviable position of a Member of the Court trying, in the judges’ private
deliberations, to argue contra praetoris sententiam by invoking a past dissenting
opinion, let alone a more recent one. States, for their part, are quite hard-headed,
and like to be told what the law has been held to be, not what the prospects are of
an argument which failed last time being successful the next time round, or the
time after that. And even the counsel whom states hire can be quite pragmatic,
faced with the imperative of winning cases rather than losing bravely but with their
academic laurels intact. To avoid unfairness, though, one ought to recognize that
propositions are often advanced in inter-state litigation not because they are likely
to succeed, but for political reasons, and a reason of that kind may include the hope
of influencing international opinion and so bringing about a change in customary
law. But if so, the significance of such a proposition lies in its being the formal
position of a state, and its effect depends on whether it influences or persuades
other states. All in all, I would doubt whether a separate or dissenting opinion in the
ICJ had the same legal weight as the individual judgment of, say, an English or
Scottish judge at first instance, even if reversed on appeal, or as the individual
judgment of a judge forming part of a higher appellate court. All that said, it can
also be said with confidence that an ICJ bench that tried to be too adventurous
would find its judgment encircled by an array of trenchant separate or dissenting
opinions that would weigh in as a useful corrective in the process of absorbing the
judgment into the international bloodstream.
3.2 Advisory opinions

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

which is actively engaging the attention of the requesting UN organ, or perhaps
even the interest of the international community in general. If so, then surely these
are just the sort of circumstances that offer the Court the opportunity, legitimated
by statute, to push the envelope, and engage in a measure of ‘progressive develop-
ment’ of the areas of international law involved?
That is certainly true so far as inter-institutional questions are concerned, or
questions that raise issues concerning the powers and status of international bodies
in general. One thinks immediately of the Reparation for Injuries26 and Expenses27
Opinions, which have reverberated down the decades because of the doors they
opened onto an enlightened approach towards the international personality of
intergovernmental organizations and their implied powers. To a certain extent
the same could be said about the long series of South West Africa/Namibia
Opinions,28 but those were much more restricted in their field of operation; and
even the legitimizing by the 1970 Opinion of the modification through practice of
the apparently literal meaning of the voting rules for the Security Council29 has
turned out to have had virtually no analogical application elsewhere.
As one moves outward, however, from the area of international institutions into
international law more generally, the position becomes less clear. That we are able
to do so at all is, of course, the product of the fact that Article 96(1) of the UN
Charter authorizes the General Assembly and the Security Council (and them
alone) to request from the ICJ an advisory opinion on ‘any legal question’. Even
if you qualify that with the gloss (derived from the Court’s practice) that, in order to
be sure that the Court will respond, the question of law posed has to be one to
which the requesting organ needs an answer in order to be able effectively to carry
out its own functions, the field remains very large; and it is only quite recently that
we have been able to appreciate just how widely it might stretch, with the Nuclear
Weapons30 Advisory Opinion succeeded by Wall,31 and latterly by Kosovo Independ-
ence.32 Inasmuch as the ICJ has now held, on repeated occasions, that it
regards itself as bound in principle to respond to requests meeting the stated
criterion, since that represents the Court’s participation in the work of the United
26 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ
Rep 174.
27 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory
Opinion) [1962] ICJ Rep 151.

28 International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128; Voting
Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa
(Advisory Opinion) [1955] ICJ Rep 67; Admissibility of Hearings by the Committee of South West Africa
(Advisory Opinion) [1956] ICJ Rep 23; Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory
29 Namibia (n 28) para 22.
30 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226.
31 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory

32 Since the delivery of the lecture on which this contribution is based, the Court has delivered its
Opinion, against the view of five of its judges who would have declined to accede to the General
Assembly’s request: Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403.
Nations deriving from its status as ‘principal judicial organ’, any tendency in the
UN General Assembly to think that majority voting can be used as the means to
turn a reference to the ICJ into an available tactic in pursuing highly political
questions, is bound to lead the Court into queasily turbulent waters.
The more politicized and more general the legal questions referred to the ICJ
under the advisory procedure, the more we encounter a problem. This is one I have
drawn attention to before, in these words:
A court asked to play an advisory role is . . . faced with a choice. It may decide that the role
requires it to bring to bear its collective judicial experience and wisdom, to be sure, but
nevertheless not to act as a court; so it may conceive its function as analogous instead to that
of a trusted advisor, like a family lawyer or the legal counsel of a government department or
international organization. It may, on the contrary, decide that the advisory role is a judicial
one, requiring it still to function as a court.33
Neither the PCIJ nor the ICJ seems ever to have addressed its collective mind to
this prior question. The point behind it is, of course, that, whereas to operate in the
‘trusted advisor’ role admits of some degree of flexibility both in the way of process
and in the shape of the final outcome, conversely to function as a court carries with
it certain necessary implications as to the judicial quality of the process, and it also
carries with it an inevitable expectation as to outcome. In particular, it creates an
expectation that the outcome will be something recognizably similar to a ‘ruling’ on
the question referred to the Court. Put together, the two elements of process and
outcome combine into something approaching the ‘preservation of the integrity of
the judicial function’ which the Court has previously laid on the table as the
ultimate controlling factor in determining whether it can properly accept a request
to deliver an advisory opinion.34 The ICJ has simply pretended that it can indeed
act as a court in carrying out the advisory function, and that whatever adaptations
are required to its normal procedural model can somehow be gathered in from case
to case along the way.35 That unsystematic pragmatism worked well enough in the
early days, when the questions coming to the ICJ were of an institutional character,
though stresses began to appear over the use of a supposedly advisory procedure as a
form of final appeal in UN staff cases, provoking in due course an explosion of ire
from the Court36 and the eventual demise of the system itself.37 Latterly, however,
33 FD Berman, ‘The Uses and Abuses of Advisory Opinions’ in N Ando, E McWhinney and
R Wolfrum (eds), Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer, 2002) vol 2, 809, 818–19.
34 As most recently recalled by the Court in Kosovo (n 32) para 31, recalling a long line of case law
from Status of Eastern Carelia (n 25), 29; Application for Review of Judgment No 158 of the United
Nations Administrative Tribunal (Advisory Opinion) [1973] ICJ Rep 166, para 24; Application for
Review of Judgment No 273 of the United Nations Administrative Tribunal (Advisory Opinion) [1982]
ICJ Rep 325, para 22; and Wall (n 31) paras 44–5.
35 Encouraged, no doubt, by Art 68 of the Statute, which somewhat insouciantly provides that
advisory proceedings are to be conducted in the same manner as contentious proceedings (see also Arts
102–3 of the Rules).
36 Application for Review (n 34).
37 Art IX of the Statute of the United Nations Administrative Tribunal, which provided for the
Court to review its judgments by way of advisory opinion, was finally deleted by GA Res 50/54
(29 January 1996), UN Doc A/RES/50/54, in which its preambular clause noted that the procedure
the unsystematic pragmatism has become less and less adequate, as the controversy
has mounted over process questions such as: the methods and adequacy of fact-
finding; entitlement to appear before the Court, and in what capacity;38 the
sufficiency of the legal argument presented to the Court; and the disabling of the
Secretary-General and his Legal Counsel from offering the Court anything more
than the barest factual material of a documentary kind. And from the point of view
not of process but of outcome, we have only to look at the somewhat farcical
conclusion of the Nuclear Weapons case, where a moderately straightforward
question by the General Assembly, virtually demanding a yes or no answer,
produced a response by way of seven propositions of varying degrees of obscurity
or precision, culminating in a declaration of inability to decide which, in the
ultimate absurdity, could only be adopted through the casting vote of the then
President!39
To draw attention to these inadequacies is not to point an accusatory finger at the
Court, which bears only a small share of the true responsibility for them. The main
blame rests with the failure of the majority in the General Assembly to understand
and properly to respect the integrity of the international judicial function. The
Court itself may come to regret it, if it finds that it has in practice surrendered its
ability to decline to respond to an advisory request on grounds of judicial propriety.
The inverse linkage however remains: the more the advisory procedure is seen as the
vehicle through which the Court can indeed exert a conscious and abstract influence
on the ‘progressive development’ of international law, the more insistently will
questions arise as to the judicial propriety of the process.40
‘had not proved to be a constructive or useful element in the adjudication of staff disputes with the
Organisation’. The Court still retains, under Art XII of the Statute of the Administrative Tribunal of
the International Labour Organization (ILOAT), powers of review over the judgments of that
Tribunal, as the most recent request for an advisory opinion before the Court demonstrates: see
Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a
Complaint Filed against the International Fund for Agricultural Development, Request for Advisory
Opinion of 26 April 2010 (<http://www.icj-cij.org/docket/files/146/15929.pdf> (accessed 17 May
2013)).
38 The Palestinian Authority and the Provisional Institutions of Government in Kosovo were
allowed to make submissions to the Court, respectively, in Wall (n 31), Order of 19 December
2003, [2003] ICJ Rep 428, 429; and Kosovo (n 32), Order of 17 October 2008, [2008] ICJ Rep 409,
410. However, despite numerous requests, the Court has for decades allowed only for public
international organizations (and those, with extreme parsimony) to make submissions before the
Court, and it has consistently declined virtually all requests from non-governmental organizations to
appear before it. For a summary of practice in this regard see GI Hernández, ‘Non-State Actors from
the Perspective of the International Court of Justice’ in J d’Aspremont (ed), Participants in the
International Legal System (Abingdon: Routledge, 2011) 140, 146–51.
39 And thus with questionable legality; see Berman (n 33) 825: ‘ . . . what possible juridical value can
there be in giving greater weight to the voice of one particular judge? It is surely hard to resist the
conclusion that an advisory proposition on which the judges divided equally is a proposition on which
the Court as such was unable to pronounce a view. It neither accepted the proposition nor rejected it; it
simply could not decide. It is impossible to see how such a proposition acquires extra persuasiveness as
a statement of law in virtue of the fact that one of the judges voted for it twice.’
40 Tellingly, in the Kosovo advisory proceedings (n 32), five judges—Vice-President Tomka, Judge
Koroma, Judge Keith, Judge Bennouna, and Judge Skotnikov—voted against the giving of an advisory
opinion, and elaborated their reasons for so doing in their declarations and dissenting opinions.
4. The effect of the Court’s judicial activity
I must come now to the third stage of my analysis: what has been the effect of the
ICJ’s judicial activity on the broader legal landscape?
This is of course a huge topic. Studies in detail, examining the substantive
questions on which the Court has pronounced, topic by topic, like those produced
sequentially by Fitzmaurice41 and now by Thirlway,42 would fill several volumes.
Others, which aim at an overall conspectus, like those produced on the ICJ’s
fiftieth43 and sixtieth anniversaries,44 are collective endeavours, combining the
practised assessments of a global élite. One would not dream of trying to compete,
within the scope of an individual contribution.
Let me instead try to isolate some general elements that seem to me of interest in
the context of the ICJ as an ‘agent of development’ or an ‘agent of change’.
The first is not merely of interest but, I would think, of some considerable
importance: once a proposition of law has been pronounced judicially, it escapes
the Court’s control. This applies equally whether the pronouncement is in a
judgment or in an advisory opinion. What do I mean by this? Let me take a
handful of examples—and to protect myself against the retort that the sample has
been slanted, they will be drawn both from areas that were under active inter-
national negotiation at the time the Court was looking at them, and areas that
weren’t. Chronologically: Reparation for Injuries (1949),45 Reservations to the Geno-
cide Convention (1951),46 Norwegian Fisheries (1951),47 and North Sea Continental
Shelf (1969).48
In Reparation for Injuries, the Court decided that the United Nations as an
Organization has the capacity to bring an international claim in respect of an injury
to one of its officials whether or not the authority responsible was a member state. It
supported this finding on the basis of the exceptional and broad functions conferred
on the UN, and on the basis that ‘fifty States, representing the vast majority of the
members of the international community, had the power, in conformity with
international law, to bring into being an entity possessing objective international
personality, and not merely personality recognized by them alone, together with
capacity to bring international claims’.49 Within a short space of time thereafter it
was widely accepted (and is now universally recognized) that the same applies to
almost any group of states, large or small, and that any international organization,
41 Fitzmaurice (n 2). 42 Thirlway (n 2).

43 V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour
of Sir Robert Jennings (Cambridge: CUP, 1995).
44 The Chinese Journal of International Law dedicated Issue 1 of its fifth volume to the sixtieth
anniversary of the Court.

45 Reparation for Injuries (n 26).
(Advisory Opinion) [1951] ICJ Rep 15.

47 Anglo-Norwegian Fisheries (UK v Norway) [1951] ICJ Rep 116.
48 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands) [1969] ICJ Rep 3.
49 Reparation for Injuries (n 26) 185.
virtually irrespective of its scope or functions, can be the bearer of objective
international personality.
In Reservations to the Genocide Convention, the Court decided (if somewhat
Delphically) that a state ratifying that treaty subject to a reservation could be
regarded as a party if the reservation was compatible with the object and purpose
of the treaty, but not otherwise. It supported this finding on the basis of ‘the
special characteristics of the Genocide Convention’, including in particular that
the Convention was
manifestly adopted for a purely humanitarian and civilizing purpose . . . In such a conven-
tion the contracting States do not have any interests of their own; they merely have, one and
all, a common interest, namely, the accomplishment of those high purposes which are the
raison d’être of the convention. Consequently, in a convention of this type one cannot speak
of individual advantages or disadvantages to States, or of the maintenance of a perfect
contractual balance between rights and duties.50
Within an even shorter space of time thereafter, the flexible regime derived from
the Court’s Opinion had been applied, in the Vienna Convention on the Law of
Treaties, to all treaties (with only limited exceptions). Then, as the manifest
problems resulting from that mounted up, we began to hear that, whatever the
merits of the Vienna Convention’s flexible regime might be, it wasn’t really suited
to the very type of treaty which the ICJ held was the justification for it, ie human
rights treaties. In parallel to that a certain number of states started, to the surprise of
many, objecting to reservations on the basis that they were incompatible with the
object and purpose of the treaty in question, while declaring that that was not to
prevent the treaty entering into force between objecting and reserving states—the
very thing the ICJ had said was not possible. After years of dithering, in 2010 the
International Law Commission’s Special Rapporteur, Alain Pellet, finally took a
position in favour of severability of incompatible reservations;51 and the Commis-
sion as a whole put forward a formula in 201152 making the matter turn on the
intentions of the reserving state.53
In Norwegian Fisheries, the Court held that Norway was entitled to establish a
system of straight baselines off certain of her western coasts, and supported this by
finding that the coastline was a ‘special one call[ing] for the application of a
different method’, the general justification for which lay in the fact that the ‘real
50 Reservations to Genocide Convention (n 46) 23.

51 See A Pellet, Fifteenth Report on Reservations to Treaties (2010) UN Doc A/CN.4/624; and
First Addendum A/CN.4/624/Add.1. See also B Simma and GI Hernández, ‘Legal Consequences of
an Impermissible Reservation to a Human Rights Treaty: Where Do We Stand?’ in E Cannizzaro (ed),
The Law of Treaties beyond the Vienna Convention: Essays in Honour of Professor Giorgio Gaja (Oxford:
OUP, 2011) 60; and A Pellet and D Müller, ‘Reservations to Human Rights Treaties: Not an Absolute
Evil’ in U Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Judge
Bruno Simma (Oxford: OUP, 2011) 521.
52 See Guide to Practice on Reservations to Treaties (at para 4.5.3), ILC Ybk 2011/II(2).
53 Which may still prove an ingenious solution to a troubling and intractable problem; unfortu-
nately, though, the Commission may have dimmed the chances of its general acceptance by opting for
the wrong default rule.
question raised in the choice of base-lines is in effect whether certain sea areas lying
within these lines are sufficiently closely linked to the land domain to be subject
to the regime of internal waters’, but this underlying idea ‘should be liberally
applied in the case of a coast, the geographical configuration of which is as
unusual as that of Norway’.54 Seven years later, this exceptional state of affairs
had been incorporated as a form of generally applicable rule into the 1958
Convention on the Territorial Sea55 and by now practice shows a very significant
proportion of states claiming straight baselines other than across bays, without
protest from other states.
My final example is the North Sea Continental Shelf cases, not this time the
operative aspect in which the ICJ laid down the rules on delimitation applicable
among the three Parties, instead the way the Court demolished the argument for
‘equitable shares’ by invoking the fundamental principle that
the rights of the coastal State in respect of the area of continental shelf that constitutes a
natural prolongation of its land territory into and under the sea exist ipso facto and ab initio,
by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign
rights for the purpose of exploring the seabed and exploiting its natural resources.56
You might think of this almost as an incidental stepping stone in the Court’s
reasoning on the delimitation of a continuous continental shelf as between adjacent
states. Yet, within some fifteen years, state practice, heated in the crucible of the
Third UN Conference on the Law of the Sea, had turned it into a cardinal rule
permitting the assertion of an outer limit to the continental shelf extending
hundreds of miles from the coast.
These are scattered examples, and I do not want to make too much out of them.
Nor am I trying to use them to draw any very specific conclusion. They are
intended merely as illustrations—and quite vivid ones, I think—of the more
general point that, wherever the decisive control may be thought to reside in the
development of international law, it certainly does not lie solely in the hands of the
International Court. Not a very original conclusion, one may say; it does nothing
more than restate in alternative terms the overall effect of Article 59 of the ICJ
Statute, which lays down that ‘[t]he decision of the Court has no binding force
except between the parties and in respect of the particular case’. But I make the
point all the same, because from time to time we see the spectre conjured up, in the
wake of some controversial decision given by the Court, of a focused intent to
smother the international system in a dense layer of judge-made law—a picture that
has no more substance or reality to it than any other international bogeyman.57
There are of course many structural factors that stand decisively in the way of any
wholesale accretion of judge-made law in the international system. The one most
frequently referred to (apart from Article 59 just mentioned) is the absence of
54 Anglo-Norwegian Fisheries (n 47) 133. 55 UNTS, vol 516, p 205 (Article 4).
56 North Sea Continental Shelf (n 48) para 19.
57 At the time the lecture was delivered, a current example was the ‘rogue Prosecutor’ of the
International Criminal Court.

compulsory jurisdiction—though a more interesting observation would refer not so
much to that in itself, as to the concomitant fact that the occasional and adventi-
tious nature of the ICJ’s caseload has the almost automatic consequence that the
Court is unlikely to be given the opportunity to revisit successively particular areas
of substantive international law. The contrary examples are so few as to prove the
rule, and even they tend to be like London buses, coming not at all, then all at once,
and then fading away once more. The ICJ, in other words, simply does not have the
same experience as domestic courts, of being asked by litigants on a regular basis to
explore the implications of past decisions, refining and reshaping them seriatim in
the light of the differing circumstances of individual cases.
The other factor, however, which is surely of equal or even greater importance in
the context of a supposed vocation to act as an agent of development, is simply that
the processes by which international law changes are against it. This is more than
merely a comment on the sources listed in Article 38 of the Statute, and the
supposedly subordinate status it ascribes to the decisions of the ICJ itself. The
non-hierarchical structure of international law, with its twin pillars of treaty and
custom, each with its own distinctive mode of formation and pattern of change, but
with a subtle and well-nigh indefinable cross-relationship between them, is simply
inimical to a court playing the pervasive role characteristic of mature national
systems. Which is emphatically not to say that these structural factors preclude
the ICJ in its own regular activity from fertilizing these modes of law-formation, or
being fertilized by them. Quite the contrary, as my little group of illustrations will
itself have shown.
5. Concluding remarks
This section of my discussion has however been too full of negatives. So let me
conclude with some more constructive observations. They come in under the
heading that, if the ICJ is not an ‘agent’ of development or change in any concerted
or purposive sense, nevertheless both the Court’s very existence as well as its judicial
activity do exert a powerful influence on international law; and as international law
is in a constant state of development and change, the Court’s influence is inevitably
felt in that respect as well. My compulsory quote from Lauterpacht is that
‘[i]nstitutions set up for the achievement of definite purposes grow to fulfil tasks
not wholly identical with those which were in the minds of their authors at the time
of their creation’.58 He might have added that the introduction onto the inter-
national scene of a standing judicial organ was a structural change, which would
have not merely a quantitative but a qualitative effect. One does not need to look
on the ICJ’s individual judgments (still less its advisory opinions) as somehow
sacrosanct tablets of stone in order to grasp the effect that a substantial body of
reasoned decisions, reached on the basis of careful fact-finding, published in an
58 H Lauterpacht, The Development of International Law by the International Court (London:
Stevens & Sons, 1958) 5.

accessible way, and widely discussed and commented on, is bound to have both on
the system of international law and on its substantive content. That was part of the
thought in the minds of the founding fathers. If one were pressed to say why,
nowadays, we seldom, if at all, bother to pose ourselves the once favourite question
as to the ‘completeness’ of international law, surely the most straightforward answer
has to be: because we have had for nearly the past century a World Court.
That is not all, though. Those like us who have to do the job so memorably
described by Sir Robert Jennings59 need beacons, guides and orientation points, all
the more so because of the non-structured, non-hierarchical nature of its rules—a
need experienced every bit as strongly by those who prefer to see international law
less as rules and more as process. But compare how we stand in that respect today,
as opposed to 90 years ago when the PCIJ was born. Then, the only guides were a
fairly thin layer of treaties and diplomatic savoir-faire in a handful of Chancelleries;
and, beyond that, the only systematic treatment was the accumulated knowledge of
the great scholars and writers. Now we have at our disposal a vast corpus of treaty-
making, accessible through the UN system of registration and publication; we have
expert studies commissioned by international organizations, notably those of the
International Law Commission; and alongside them and enriching both we have
the massive and extensive body of the judicial activity of the World Court, fully
documented, and instantly available at the touch of a computer keyboard.
Of course none of these sources can be guaranteed to furnish ‘the’ answer to any
legal question; they are guides only, or starting points for our enquiry. And of
course the judgments of the ICJ (and very much so its advisory opinions) will be
tested in the rumbustious market-place of ideas, and so they should be; those that
convince by the quality of their reasoning (and, I add, by the convincingness of
their fact-finding) will have profound effects in the ways I have described, while
those that don’t (on either score) will fade. Once again, that is as it should be. But
how would we do without them?
59 RY Jennings, What Is International Law and How Do We Tell It When We See It? (Cambridge-
Tilburg Law Lectures) (Berlin: Springer, 1983) 1.

PART II
THE LAW OF TREATIES
3
The Role of the International Court of
Justice in the Development of the
Contemporary Law of Treaties
Vera Gowlland-Debbas*
1. Introduction
To what extent has the International Court of Justice (ICJ, or ‘the Court’) contrib-
uted to the development of a law of treaties more in keeping with the requirements
of contemporary society? To begin with, what is the Court’s role in the develop-
ment of international law tout court? Sir Hersch Lauterpacht addressed this question
in his seminal work on The Development of International Law by the International
Court over half a century ago. While acknowledging that
[c]ourts have to apply the law and . . . they have to apply the law in force . . . [i]t is not their
function deliberately to change the law so as to make it conform with their own views of
justice and expedience’,1 he nevertheless expressed the view that: ‘[t]his does not mean that
they do not in fact shape or even alter the law. But they do it without admitting it; they do it
while guided at the same time by existing law; they do it while remembering that stability
and uncertainty are no less of the essence of the law than justice; they do it, in a word, with
caution.2
In his view, the Court had a duty to ‘consciously and conscientiously’ further the
development of international law and not just to react to existing law, nor to shy
away from underlining its shortcomings. It should not create the impression of
ethical indifference, nor act as an ‘automatic slot-machine’ totally divorced from the
social and political realities of the international community. The Court had to
* This contribution began as a lecture at the University of Glasgow on 28 April 2010, parts of which
were subsequently published in ‘The Contribution of the International Court of Justice to the
Development of the Law of Treaties’ in M Kohen, R Kolb and DL Tehindrazanarivelo (eds),
Perspectives of International Law in the 21st Century: Liber Amicorum Christian Dominicé (Dordrecht:
Martinus Nijhoff, 2012) 299–320.
1 H Lauterpacht, The Development of International Law by the International Court of Justice
(London: Stevens & Sons, 1958) 75.

2 Lauterpacht (n 1).
exercise in each case a creative activity, having in mind the necessities of the
international community.3
The Court itself has stated on numerous occasions that ‘[i]ts duty is to apply the
law as it finds it, not to make it’,4 and Sir Robert Jennings once warned that one
must not attempt to read too much in the Court’s judgments, for ‘any tendency to
use contentious cases for broad excursions into “development” of the law is usually
self-defeating’.5 But he was writing at a time when the Court’s cases were few and
far between and one can hardly today deny the impact of its judgments and
advisory opinions and the role they have played in the development and consoli-
dation of international law (and by this is meant ‘general pronouncements of law
and principle that may enrich and develop the law’).6 While there is no principle of
stare decisis, the Court once again reiterated in its 2008 Judgment in the Genocide
Convention case (Croatia v Serbia) that while not bound by its previous decisions, it
will not depart from its settled jurisprudence unless it finds very particular reasons
to do so.7 So the Court provides a certain continuity that is itself necessary for the
development of the law.
Ultimately, the outcome of many of its cases has depended on the vision which
particular judges have had of the role the Court should play in the development of
international law. At one end of the spectrum are judges like Alejandro Alvarez,
who as far back as 1949 would have had the Court fulfil a new mission, additional
to its functions of elucidating and developing the existing law, namely ‘that of
creating and formulating new precepts’ to bring the law into harmony with the new
conditions of social and international relations, founded on social interdependence,
and as a result, and owing also ‘to the predominance of the general interest’, he
pointed out in his prescient way that ‘[s]tates are bound by many rules which have
not been ordered by their will’.8 Similarly, in his dissents, Judge Weeramantry
often decried the fact that the ICJ had not taken up its responsibility to respond to
3 See S Rosenne, ‘Sir Hersch Lauterpacht’s Concept of the Task of the International Judge’ (1961)
55 AJIL 825, 835, 854–5.

4 South West Africa (Liberia v South Africa; Ethiopia v South Africa) [1966] ICJ Rep 6, para 89.
Again, ‘The possibility of the law changing is ever present: but that cannot relieve the Court from its
obligation to render a judgment on the basis of the law as it exists at the time of its decision’ (Fisheries
Jurisdiction (UK v Iceland) (Merits) [1974] ICJ Rep 3, para 40; Legality of the Threat or Use of Nuclear
Weapons (Advisory Opinion) [1996] ICJ Rep 226, para 18).
5 Sir RY Jennings, ‘The Judicial Function and the Rule of Law’ in International Law at the Time of
its Codification: Essays in Honour of Roberto Ago (Dott A Giuffrè Editore, 1987) vol III, 139, 142–3.
But see Judge Sir RY Jennings, ‘The Role of the International Court of Justice in the Development of
International Environmental Law’ (1992) 1 Review of European Community and International Environ-
mental Law 240–4.
6 GG Fitzmaurice, ‘Hersch Lauterpacht—The Scholar as Judge’ (1961) 37 BYIL 14–15, referring
to two main possible approaches to the task of a judge, one conceiving the primary duty of the judge to
be that of deciding the case in hand, with the minimum of verbiage, the other resorting to aspects
which have a wider interest or connotation in order to make general pronouncements of law. For the
formal aspects of judicial activism see H Thirlway, ‘Judicial Activism and the International Court of
Justice’ in N Ando et al (eds), Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer, 2002) 75–105.
7 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v
Serbia) (Preliminary Objections) [2008] ICJ Rep 412, para 53.

8 Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4 individual opinion of Judge Alvarez, 40
and 43. See also International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128,
Dissenting Opinion of Judge Alvarez, 175–7.
The Law of Treaties 27
the requirements of the international system, and in the Maritime Delimitation in

the Area between Greenland and Jan Mayen case, appealed for a search of global
traditions of equity for concepts which international law had not yet tapped ‘the
sophisticated notions of reasonable and fair conduct currently being unveiled by
modern researches in African, Pacific, and Amerindian customary law, . . . [and]
Australian Aboriginal customary law.’9
Such judges sought a teleological interpretation of the law, considering that the
judicial function was not the mere application of rules to facts. Like Sir Hersch
Lauterpacht, some also adhered to the notion that ‘behind the personified insti-
tutions called States there are in every case individual human beings to whom the
precepts of international law are addressed . . . ’10
But attitudes to the judicial function and to notions of justice have differed, and
some judges were situated at the opposite end of the spectrum. Judge Fitzmaurice
was very sensitive to the dangers of exceeding the limits of the judicial function; in
his view, justice according to law meant an explicit separation between legal and
political issues—this explains his dissent in the Namibia and South West Africa
cases.11 Judge Guillaume believed in transactional justice—the Court’s role was
merely to decide the case at hand and to satisfy the parties, with the minimum of
verbiage necessary for this purpose12—and it was only after his departure that the
term jus cogens passed the lips of the Court. Finally, while Judge Higgins posed the
question of when creativity in the face of adverse circumstances crosses the line into
the unpermitted,13 Sir Robert Jennings underlined that ‘a purely legal reasoning
which fails to take adequate account of the practical and political consequences of a
legal type of decision may be erroneous’.14 One is reminded here of Shabtai
Rosenne’s fine distinction: ‘the function performed by the existence of the Court
(as distinct from the performance of that function by the Court itself ) is to be seen
in the ultimate analysis as a political one.’15
This juxtaposition of views may probably be too simplistic an approach. As
Judge Kooijmans pointed out:
in actual practice the situation often, be it not always, is rather nebulous. The ICJ is a
collegiate body and both approaches will be reflected in its composition. And the final
9 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) [1993]
ICJ Rep 38, Separate Opinion of Judge Weeramantry, para 239.

10 Rosenne (n 3) 828.
11 JG Merrills, Judge Sir Gerald Fitzmaurice and the Discipline of International Law: Opinions on the
International Court of Justice, 1961–1973 (The Hague: Kluwer, 1998) 70–4.

12 See G Guillaume, ‘Transformations du droit international et jurisprudence de la Cour Inter-
nationale de Justice’ in R Ben Achour and S Laghmani (eds), Les nouveaux aspects du droit international
(Paris: Pedone, 1994) 175, 176.
13 R Higgins, ‘Keynote Address’ (2006) 100 ASIL Proceedings 388.
14 Sir RY Jennings, ‘Judicial Reasoning at an International Court’ in G Ress (ed), Vorträge, Reden
und Berichte aus dem Europa-Institut, No. 236 (Universität des Saarlands: Saarbrücken, 1991) 1, 6.
15 S Rosenne, The Law and Practice of the International Court, 1920–1996, vol 1: The Court and the
United Nations (Dordrecht: Martinus Nijhoff, 3rd edn 1997) 6.

product of the deliberations, whether a judgment or an advisory opinion, will usually be
more determined by the specificities of the case than by a contest of approaches.16
Yet these different approaches have been reflected in the Court’s practice in such
cases as the 1962 South West Africa cases17 and the recent 2012 case concerning
Jurisdictional Immunities,18 which may be contrasted to the more daring 1971
Namibia and 2004 Wall 19 Advisory Opinions.
Concerning the Court’s contribution to the development of the law of treaties,
the overall picture shows that the Court, while at pains in its jurisprudence to
stress the stability of treaty relations by advocating, for example, strict observance of
the pacta sunt servanda principle and to generally strengthen the classical doctrine of
the law of treaties, has not failed at the same time to take into account the evolution
of international society.
Treaties are par excellence the legal act or transaction by which social change
and hence social claims cross the normative threshold; in other words they ensure
the passage of non-law into law. It is clear that contemporary transformations in
the social and legal environment have affected general law-making by states: (I) the
complexity and technical nature of the social environment and the increasing role
played by soft law which has made the shifting boundary between the normative
and non-normative more difficult to seize, have affected the formal techniques of
treaty-making and contributed to the diversity of treaty forms, while the emergence
of a multiplicity of non-state actors has challenged the monopoly of the state in law-
making; (II) though the law of treaties is concerned with the instrumentum and not
the negotium, the substance of the norms in certain fields of international law has
affected law-making—thus the budding of an international public policy and
hierarchization of international law has had an impact on, inter alia, the changing
nature of state consent underlying treaty-making in certain fields; and (III) the
proliferation of different subsets of norms has been said to challenge the unity of
international law, including the unity of the treaty regime under the Vienna
Convention on the Law of Treaties20 (VCLT).21
16 P Kooijmans, ‘The ICJ in the 21st Century: Judicial Restraint, Judicial Activism, or Proactive
Judicial Policy’ (2007) 56 ICLQ 741, 742.

17 South West Africa (Ethiopia and Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep
319. McWhinney pointed out that the Court here was engaging in exercises in logic and not in life and
was preoccupied ‘with the petit-point needlework of international law at the expense of the substantive
reality of the international conflict-situations coming before it’. E McWhinney, Judge Manfred Lachs
and Judicial Law-Making: Opinions on the International Court of Justice, 1967–1993 (Dordrecht:
Martinus Nijhoff, 1995) 20.
18 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) Judgment of 3 February
2012 (<www.icj-cij.org/docket/files/143/16883.pdf> (accessed on 17 May 2013)).


20 22 May 1969, 1155 UNTS 331.
21 See generally V Gowlland-Debbas (ed), Multilateral Treaty-Making: The Current Status of
Challenges to and Reforms Needed in the International Legislative Process (Dordrecht: Martinus Nijhoff,
2000); V Gowlland-Debbas, Law-Making in a Globalized World, Bancaja Euromediterranean Courses
of International Law, vol VIII/IX (2004–5), 505–661.
I will therefore focus on the ICJ’s contribution to the law of treaties in the light
of these environmental changes and societal requirements. International conven-
tions being the bread and butter of the Court’s mandate under Article 38 of its
Statute, the material is necessarily voluminous, so my remarks can only be impres-
sionistic ones.
2. The Court and the diversity of forms and

actors involved in treaty-making
The ICJ has never strictly adhered to formalities when it comes to treaty law. In
conformity with the VCLT, the Court observed in its Qatar v Bahrain Judgment
that ‘international agreements may take a number of forms and be given a diversity
of names’, terminology not being a determinant factor as to the character of an
international agreement.22 But this was not new. As Klabbers has pointed out, the
Permanent Court of International Justice had been equally flexible with regard to
the notion of informal agreements, declaring that international engagements with
obligatory force may be taken in various forms, such as ‘treaties, conventions,
declarations, agreements, protocols, or exchanges of notes’.23 Thus the Court’s case
law has considered mandates, joint communiqués, and minutes of meetings to be
potentially capable of constituting binding agreements.
In the South West Africa cases, the ICJ viewed South Africa’s Mandate over South
West Africa as a special type of instrument, which, while it took the form of a
Resolution of the League Council, had ‘the character of a treaty or convention and
embodying engagements for the Mandatory as defined by the Council and accepted
by the Mandatory’.24 It implicitly applied the VCLT provisions on material breach
to such an engagement.
The Court has upheld the intention of states but only as expressed in the actual
wording and the particular context in which an instrument was concluded, over the
form taken by it, for as it stated in the Aegean Sea Continental Shelf case: ‘On the
question of form, the Court need only observe that it knows of no rule of
international law which might preclude a joint communiqué [between Greece
and Turkey, which had neither been signed nor initialled] from constituting an
international agreement’, even though it concluded that it did not have the binding
effect contended for.25
22 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain)
(Jurisdiction and Admissibility) [1994] ICJ Rep 112, para 23.

23 Customs Regime between Germany and Austria (1931) PCIJ Ser A/B No 41,14; see J Klabbers,
The Concept of Treaty in International Law (The Hague: Kluwer, 1996) 45.
24 South West Africa (Preliminary Objections) (n 17) 330–1. See also the Separate Opinion of Judge
Jessup in the same case, 411: ‘International law, not being a formalistic system, holds States legally
bound by their undertakings in a variety of circumstances’, and the Joint Dissenting Opinion of Judge
Fitzmaurice and Judge Spencer, 474–5.
25 Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3, para 96.
This approach to treaty law was elaborated in the Qatar v Bahrain case, in which
the ICJ considered that the minutes of a meeting concluded in 1990 between the
parties Qatar and Bahrain could be constitutive of rights and obligations in
international law. Formalities such as non-registration (Article 102 of the UN
Charter) or disregard for constitutional procedures (Bahrain’s contention regarding
Qatar’s conduct) could not affect the binding nature of the document. The Court
went even further in stating that even if Qatar’s intentions not to conclude a
binding agreement could be shown to exist, they could not prevail over the actual
terms of the instrument in question.26
Admittedly the Court was concerned in these cases only with whether the
agreement in question was sufficient to establish its jurisdiction, stating that ‘the
court is not concerned, nor is it competent, to pronounce upon any other implica-
tions’ of the documents in question.27 Nevertheless, such pronouncements of the
Court were bound to have a decisive impact on the practice of drawing up informal
agreements and showed the legal consequences that this practice may result in.28
The Court has also touched on the changing role of actors within the system.
Judge Higgins has pointed out that ‘[i]t has been widely noted that globalization is
encouraging the emergence of international actors other than states . . . The parallel
phenomenon—the need to look behind the monolithic face of “the state” . . . has
perhaps been less commented on’.29 For state practice has become fragmented: the
so-called ‘acts of states’ which are relevant for the purposes of international law are
in fact the work of a multitude of state organs, and ever-different substrata of the
state now directly participate in treaty-making in their areas of competence, which
raises the question of who can bind the state.
The 1969 VCLT shelved the issue of the conclusion of treaties by the constitu-
ent units of a federal state. But Judge Higgins has pointed out that in the LaGrand
case the ICJ went beyond the state which was the ratifying party under the Vienna
Convention on Consular Relations,30 in underlining the obligations of the Gov-
ernor of Arizona ‘to act in conformity with the international undertakings of the
United States’ and declared that the United States Government ‘should transmit
this Order to the Governor of the State of Arizona’.31 ‘This was an important
26 Qatar v Bahrain (n 22) paras 25 ff: ‘Accordingly, and contrary to the contentions of Bahrain, the
Minutes are not a simple record of a meeting . . . They enumerate the commitments to which the
Parties have consented. They thus create rights and obligations in international law for the Parties.
They constitute an international agreement.’ Klabbers points out that in the Interpretation of the Treaty
of Neuilly (1924) PCIJ Ser A No 4 the Court equally ignored the formality of registration. Klabbers
(n 23) 81.
27 Aegean Sea (n 25) para 96.
28 See EW Vierdag, ‘The International Court of Justice and the Law of Treaties’ in V Lowe and
M Fitzmaurice (eds), Fifty Years of the International Court of Justice (Cambridge: CUP, 1996) 145,
165–6.
29 R Higgins, ‘The Concept of “The State”: Variable Geometry and Dualist Perceptions’ in
L Boisson de Chazournes and V Gowlland-Debbas (eds), The International Legal System in Quest of
Equity and Universality: Liber Amicorum Georges Abi-Saab (The Hague: Kluwer, 2001) 547, 561.
30 24 April 1963, 596 UNTS 261.
31 LaGrand (Germany v USA) (Provisional Measures) [1999] ICJ Rep 9, paras 28–29.
departure for the Court, directed to “piercing the veil” of the concept of “a state” for
purposes of securing compliance with international obligations.’32
The ICJ also addressed itself directly to the conduct of domestic courts, when it
stated ‘that the Malaysian courts had the obligation to deal with the question of
immunity from legal process’ of a Special Rapporteur of the UN Human Rights
Commission and that the Government had an obligation to communicate the
Advisory Opinion to these courts to give effect to its international obligations.33
In DRC v Rwanda, the Court rejected Rwanda’s argument that it could not be
internationally bound by a statement of its Minister of Justice made before the UN
Human Rights Commission stating Rwanda’s intention to withdraw its reserva-
tions to human rights treaties (and relied upon by the Congo as a basis for the
Court’s jurisdiction), as only a Foreign Minister or Head of Government had
‘automatic authority to bind the State in matters of international relations’—in
this case to lift the particular reservation. The Court noted that with increasing
frequency in modern international relations, other persons such as ‘holders of
technical ministerial portfolios exercising powers in their field of competence in
the area of foreign relations, and even . . . certain officials’ may be authorized by that
state to bind it by their statements in respect of matters falling within their purview.
It could not therefore accept Rwanda’s argument that the statement ‘did not bind
the Rwandan State internationally, merely because of the nature of the functions
that . . . [the Minister of Justice] exercised’, although it considered that the state-
ment in this particular case had not been ‘made in clear and specific terms’.34
As for international organizations, having recognized in the Reparations case that
the United Nations had international personality, the ICJ opened the door to the
possibility of the creation of legal entities other than states in response to ‘the
requirements of international life’, pointing out that ‘[t]he subjects of law in any
legal system are not necessarily identical in their nature or in the extent of their
rights, and their nature depends upon the needs of the community’.35 It subse-
quently accepted the treaty-making capacity of international organizations;
asserting that as subjects of international law, international organizations are
bound by the provisions of treaties to which they have adhered.36
32 Higgins (n 29) 557.

33 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on
Human Rights (Advisory Opinion) [1999] ICJ Rep 62, dispositif, paras 2 and 4; Higgins (n 29)
559–60.
34 Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda)
(Jurisdiction and Admissibility) [2006] ICJ Rep 6, paras 46–53. The statement of the Rwandan
Minister of Justice also raises the question of unilateral acts of states which I will not re-visit (see eg the
Nuclear Tests cases (Australia v France) and (New Zealand v France) [1974] ICJ Rep 253 and 457, 42 ff
and 45 ff respectively).
Rep 174, 178.

36 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory
Opinion) [1980] ICJ Rep 73, para 37.

But the international legal system has had a difficult time transcending the state-
centric system in order to capture the diversity of social actors; these have not all
been recognized as having treaty-making capacity. The PCIJ in Serbian Loans had
put forward the classic view that any contract not between states arose within
national law.37 This traditional pronouncement was revisited by its successor Court
in respect more specifically of multinational corporations in the Anglo-Iranian Oil
case, which concerned a dispute between the Iranian Government and the Anglo-
Iranian Oil Company arising from the Government’s nationalization of the oil
industry in 1951, and hence its ending of a 1933 oil concession granted to the
company.38 The Court rejected the view put forward by the UK that the 1933
concession agreement had a dual character—concessionary contract and treaty
between two governments (because it had been concluded in settlement of a
dispute between the UK and Iran), stating that it was nothing more than a
concessionary contract between a government and a foreign corporation; it did
not regulate the relations between Iran and the UK. In this case also, the Court was
concerned only with whether the concession belonged to the category of treaties for
purposes of its jurisdiction, ie for the purposes of interpretation of the Iranian
optional clause declaration. It has not revisited this question since, although it has
been faced with cases involving concessions and multinational corporations (Mav-
rommatis,39 Barcelona Traction,40 ELSI,41 and Diallo42).43 The recent proliferation
of investment disputes has not changed the picture; investment treaty tribunals
continue to make a strict distinction between the international treaty and the
municipal or contractual sphere, despite the increasing interrelationship between
public and private international law in such dispute resolution.44
The question of the status of treaties concluded with indigenous peoples has also
surfaced in the context of the long process of obtaining a declaration on the rights of
indigenous peoples. The general tendency has been to contest their standing in
international law today either because they are sui generis or because they are
considered basically a domestic issue.
In examining Nigeria’s claim to the title to the Bakassi peninsula, in the Land
and Maritime Boundary dispute between Nigeria and Cameroon, the Court con-
sidered the international legal status of an 1884 ‘Treaty of Protection’, concluded
between the Kings and Chiefs of Old Calabar and Great Britain, the nature of
which it stated could not be deduced from its title alone. It distinguished between
37 Serbian Loans (1929) PCIJ Ser A No 20, 41.

38 Anglo-Iranian Oil Company (UK v Iran) (Preliminary Objections) [1952] ICJ Rep 89, 112–13.
39 Mavrommatis Palestine Concessions, Judgment No 2 (1924) PCIJ Ser A No 2.
[1970] ICJ Rep 3.

41 Elettronica Sicula SpA (ELSI) (US v Italy) [1989] ICJ Rep 15.
42 Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections) [2007] ICJ Rep 582.
43 For details see Kate Parlett’s contribution to the present volume at Chapter 6.
44 See eg Z Douglas, The International Law of Investment Claims (Cambridge: CUP, 2009) 8.
those ‘treaties of protection’ entered into with entities that retained a previously
existing sovereignty, ie a protectorate such as Morocco or Tunisia, and those
entered into with important indigenous rulers exercising effective local rule over
areas of territory. So far as the latter were concerned, the Court referred to Max
Huber’s pronouncement in the Island of Palmas case45 that such a treaty ‘is not an
agreement between equals; it is rather a form of internal organisation of a colonial
territory, on the basis of autonomy of the natives . . . And thus suzerainty over the
native States becomes the basis of territorial sovereignty as towards other members
of the community of nations.’46 It also referred to its Western Sahara Advisory
Opinion in which it had stated that in territories that were not terra nullius, but
were inhabited by tribes or people having a social and political organization,
‘agreements concluded with local rulers . . . were regarded as derivative roots of
title’ and it required effect to be given to their legal consequences.47 It concluded
that in its view the 1884 Treaty had not established an international protectorate,
but was one of a multitude in a region where the local rulers were not regarded as
states; from the outset Britain regarded itself as administering the territories
comprised in the 1884 Treaty and had not considered that the latter implied
international personality. The Court therefore rejected Nigeria’s contention that
until Nigeria’s independence in 1961 the Bakassi Peninsula had remained under
the sovereignty of the Kings and Chiefs of Old Calabar.48
Judge Koroma dissented from this finding of the Court: in his view, it was in
clear violation of the express provisions of the Treaty and contrary to the intent of
the Kings and Chiefs; it was clear from its terms that the 1884 Treaty was governed
by the principle of pacta sunt servanda, that Old Calabar was regarded not as terra
nullius but as a politically and socially organized community which was recognized
as such, and constituted an acknowledgement by Great Britain that the Kings and
Chiefs of Old Calabar were capable of entering into a treaty relationship with a
foreign power.49
On the other hand, the Court accepted in the Wall case that the Israeli-
Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September
1995 created rights and obligations under international law; it imposed commit-
ments on both Israel and the PLO and it was one more indication of the recogni-
tion of the ‘legitimate rights’ of the Palestinian people under international law,
which included a right to self-determination, as well as recognition of the PLO as
their legitimate representatives.50 The Court thus recognized the treaty-making
capacity of a national liberation movement.
45 Island of Palmas case (Netherlands v US ) (1928) 2 RIAA 829, 840.

46 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial
Guinea Intervening) [2002] ICJ Rep 303, para 205.
47 Western Sahara [1975] ICJ Rep 12, para 80.
48 Cameroon v Nigeria (n 46) paras 207, 212.
49 Cameroon v Nigeria (n 46), Dissenting Opinion of Judge Koroma 479, para 15.
50 Wall case (n 19) para 118.
3. The Court, the hierarchization of international law,

and the concept of collective interest treaties
3.1 The concept of collective interest treaties

The recognition of a hierarchy or gradation of legal norms and the juxtaposition of
community interests and values alongside the bilateral and contractual relations
between states has in fact not only contributed to the substantive fabric of
international law but has brought in its wake different assumptions and has had
an impact on basic premises of international law, including those on law formation.
A multitude of categorizations has entered willy-nilly into the legal vocabulary,
whether as positive or as ‘soft’ law. The Court has contributed its own vocabulary to
this development: obligations erga omnes, intransgressible norms of customary
international law, elementary considerations of humanity, etc,51 although it has
not had much say with regard to the concept of jus cogens, ensconced in Article 53
of the VCLT, for while the first use of the term jus cogens may be traced to Judge
Schücking’s Opinion in the Oscar Chinn case,52 referring in this context not to
peremptory norms per se but to treaty provisions expressly providing for non-
derogability, inter alia Article 20 of the Covenant, the first direct endorsement of
the term by the ICJ was made only in 2006 in Armed Activities (DRC v Rwanda).53
The field of treaty law has produced, apart from jus cogens, the concept of
‘collective interest’ reflected in certain multilateral treaties insofar as they cannot
be split up into a series of bilateral rights and obligations, since their violation
necessarily affects the enjoyment of the rights or the performance of the obligations
of the other parties, such as fisheries conservation treaties or treaties on disarma-
ment; or, again, which establish obligations of an essentially objective character,
such as human rights treaties.54 This has given rise to the question of the unity
or diversity of the VCLT’s legal regime, ie whether different types of treaties
51 See, eg, Barcelona Traction (n 40) para 33; Nuclear Weapons (n 4) para 79; Wall case (n 19) para
157. See generally V Gowlland-Debbas, ‘Judicial Insights into the Fundamental Values and Interests of
the International Community’ in AS Muller, D Raic and JM Thuranszky (eds), The International
Court of Justice: Its Future Role After 50 Years (Dordrecht: Martinus Nijhoff, 1997) 327.
52 Oscar Chinn (1934) PCIJ Ser A/B No 63, 149. But Judge Schücking’s words should be recalled
in this connection: ‘The terms of Article 38 of the Statute—which indicates, in the first place, as the
source of law for the Court’s decisions “international conventions, whether general or particular . . . ”—
cannot be intended to mean that the Court is bound to apply conventions which it knows to be invalid.
The Court would never, for instance, apply a convention the terms of which were contrary to public
morality. But in my view, a tribunal finds itself in the same position if a convention adduced by the
parties is in reality null and void, owing to a flaw in its origin. The attitude of the tribunal should, in my
opinion, be governed in such a case by considerations of international public policy . . . ’ The ICJ,
moreover, has never had to declare a treaty invalid because it conflicts with jus cogens, nor has it been
solicited under Art 66 of the VCLT which establishes the jurisdiction of the Court to settle disputes
arising from the violation of peremptory norms (jus cogens).
53 Armed Activities (DRC v Rwanda) (Jurisdiction and Admissibility) (n 34) para 64.
54 See DN Hutchinson, ‘Solidarity and Breaches of Multilateral Treaties’ (1988) 59 BYIL 151,
151–6.
are subject to different treaty rules, in particular in the matters of interpretation,

reservations, and succession.
3.2 The Court’s approach to collective interest treaties

The VCLT was cast in the mould of the relatively homogenous society of the time
based on bilateral relationships between states; it does not include the traditional
distinction between traité-loi and traité-contrat or that between normative or
codification treaties and contractual treaties.55 Nor did it expressly retain Sir
Gerald’s Fitzmaurice’s approach pursuant to which different categories of treaties
would have been regulated by the provisions of Article 30 on successive treaties,
namely: (a) treaties comprising reciprocal obligations; (b) those which included
interdependent obligations, ie ‘where a fundamental breach of one of the obliga-
tions of the treaty by one party will justify a corresponding non-performance
generally by the other parties, and not merely a non-performance in their relations
with the defaulting party’; and (c) those of an integral character ‘where the force of
the obligation is self-existent, absolute and inherent for each party, and not
dependent on a corresponding performance by the others’,56 such as the Genocide
Convention, various instruments relating to the protection of human rights, and
the 1949 Geneva Conventions. But certain provisions of the VCLT hint at such a
distinction,57 which would also be reflected in the ILC’s subsequent work on state
responsibility.58
The Court has been instrumental in elaborating the concept of treaties with a
collective interest. The PCIJ’s 1923 Wimbledon Judgment, while characterizing the
right to enter into international agreements as ‘an attribute of State sovereignty’,59
interpreted the notion of legal interest widely to include all the parties to the treaty
regime relating to the Kiel Canal in the execution of its provisions; and in the
Continental Shelf case the ICJ referred to norm-creating provisions in a conven-
tion, with obvious reference to the traité-loi, the only ones capable of generating
customary international law.
But it is especially in relation to human rights treaties that the ICJ has given voice
to the concept of collective interest embedded in multilateral treaties having a
55 This categorization can be traced back to Triepel’s (borrowed) distinction between the Vertrag
and the Vereinbarung, between an agreement reconciling or adjusting opposing interests and one
reflecting the common interests of the parties and of a standard-setting kind (H Triepel, ‘Les rapports
entre droit interne et droit international’ (1923) 1 Recueil des Cours 73).
56 Third Report on the Law of Treaties (Doc A/CN.4/115), ILC Ybk 1958/II, 27–8.
57 Namely Art 60(2) and (5) on material breach; Art 5 on treaties and international organizations;
Art 20(3) on reservations in the context of international organizations; and Art 30(1) on Art 103 of the
UN Charter.
58 See the notion of injured states in the 1996 Draft Articles on State Responsibility (Art 40(2)(e)
(ii) and (iii)), and in the final Articles on the Responsibility of States for Internationally Wrongful Acts,
(Art 48(1)(a)–(b) on the non-injured state’s right to invoke responsibility and Art 59 on the UN
Charter’s status).
59 SS ‘Wimbledon’ (UK, France, Italy, Japan, Poland [Intervening] v Germany) (1923) PCIJ Ser A
No 1, 25.
humanitarian purpose. In examining the compatibility of reservations with the
Genocide Convention, the ICJ declared:
In such a convention the contracting States do not have any interests of their own; they
merely have, one and all, a common interest, namely, the accomplishment of those high
purposes which are the raison d’être of the convention. Consequently, in a convention of
this type one cannot speak of individual advantages or disadvantages to States, or of the
maintenance of a perfect contractual balance between rights and duties . . . 60
Similarly, the Mandate for South West Africa, having as its object a ‘sacred trust of
civilization’, was considered to embody ‘international engagements of general
interest’,61 insofar as it ‘was created, in the interest of the inhabitants of the
territory, and of humanity in general, as an international institution with an
international object—a sacred trust of civilization’.62
The ICJ has likewise approached the UN Charter as a ‘multilateral treaty, albeit a
treaty having certain special characteristics’,63 stating that
[f]rom a formal standpoint, the constituent instruments of international organisations are
multilateral treaties, to which the well-established rules of treaty interpretation apply . . . But
[they] are also treaties of a particular type; their object is to create new subjects of law
endowed with a certain autonomy, to which the parties entrust the task of realising common
goals.64
3.3 Collective interests and treaty interpretation

The concept of a treaty having a collective interest first had an impact on treaty
interpretation. While the VCLT refers to object and purpose in many of its
provisions, Article 31(1) has usually been interpreted as a single operation, the
context of a treaty and its object and purpose resorted to only in order to shed light
on the ordinary meaning of the term, thus bolstering a textual approach. The Court
itself has on a number of occasions stated that interpretation must be based above
all upon the text of a treaty.65 Yet the nature of treaties such as the Charter of the
United Nations has led it to depart from such an approach on the basis of a
dynamic, teleological, or evolutionary approach which has taken into account
the development not only of new rules but also of new standards, principles, and
values.
(Advisory Opinion) [1951] ICJ Rep 15, 23.

61 South West Africa (Preliminary Objections) (n 17) 332.
62 Legal Consequences for States of the Continued Presence of South Africa in South West Africa
(Namibia) notwithstanding Security Council Resolution 276 [1971] ICJ Rep 16, para 46; Certain
Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240, para 41.
63 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory
Opinion) [1962] ICJ Rep 151, 157.

64 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ
Rep 66, para 19.

65 Territorial Dispute (Libya/Chad) [1994] ICJ Rep 6, para 41.
In its Namibia Opinion, the Court, referring to the concept of sacred trust
embodied in Article 22 of the League Covenant which the Court considered to
have contained the seeds of the contemporary right of self-determination, stated
that though ‘[m]indful as it is of the primary necessity of interpreting an instrument
in accordance with the intentions of the parties at the time of its conclusion’, where
the concepts embodied in a treaty are not static but ‘by definition, evolutionary’,
their
interpretation cannot remain unaffected by the subsequent development of law . . . More-
over, an international instrument has to be interpreted and applied within the framework of
the entire legal system prevailing at the time of the interpretation.66
The ICJ nevertheless tried not to depart too much from traditional consensual
views of interpretation by stating that ‘the parties to the Covenant must conse-
quently be deemed to have accepted them as such’, in other words it must surely
have been the intention of the parties to have considered certain generic terms of
the treaty to be evolutionary. Admittedly, the Court has applied this evolutionary
interpretation to other types of legal instruments.67 At the same time, the Court
referred to the subsequent practice of the UN in the field of decolonization, raising
the question of the close relationship between subsequent practice and evolutive
interpretation.68
The ICJ has also had to assess the impact of the emergence of new norms of
environmental law on the interpretation of a treaty. In the Gabčíkovo-Nagymaros
case Hungary, relying on the Court’s Namibia pronouncement, invoked the
principle of ecological necessity in unilaterally suspending and then, in 1992,
terminating the 1977 Danube River Dam treaty concluded with Czechoslovakia,
in response to that state’s introduction of a unilateral provisional solution for the
operation of the Gabčíkovo dam. Claiming that this would have a number of

67 In Aegean Sea Continental Shelf (n 25) it considered, in relation to the term ‘territorial status’ in a
reservation, that when parties to a treaty use generic terms to define the scope of their obligations, they
must be presumed to have intended the meaning and content of those terms to follow the evolution of
international law, particularly when those terms are ensconced in treaties designed to be of a general
kind and of continuing duration (paras 75–80). More recently, in the Dispute regarding Navigational
and Related Rights (Costa Rica v Nicaragua), the Court stated: ‘there are situations in which the parties’
intent upon conclusion of the treaty was . . . to give the terms used . . . a meaning or content capable of
evolving, not one fixed once and for all, so as to make allowance for, among other things, developments
in international law’. This was the case with the term comercio, which was a ‘generic term’ in a treaty
that had been in force for a very long time. Again, the Court insisted that such an interpretation took
account of the common intention at the time the treaty was concluded ([2009] ICJ Rep 213, paras
64–8). While connected, this ‘mobile reference’ (see Judge Bedjaoui’s Separate Opinion in Gabčíkovo-
Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7, 120, para 8) is not to be confused with
intertemporal law as stated in the Island of Palmas case, in which ‘a judicial fact must be appreciated in
the light of the law contemporary with it’, which raises the question of the scope of application of two
rules with fixed content ((n 45) 845). Though raised by Sir Humphrey Waldock, the concept of
intertemporal law was not retained in the VCLT.
68 In the Dispute regarding Navigational Rights (n 67) the Court clearly distinguished evolutionary
interpretation from the subsequent practice of the parties, which in fact departed from the original
intent (para 64).
adverse ecological effects, Hungary requested that the Court interpret the treaty in
the light of the new law of the environment and of international watercourses.
The Court was not impressed with the arguments concerning ecological neces-
sity and ultimately found that both Hungary and Slovakia were in breach of their
contractual obligations. It accepted that the ‘newly developed norms of environ-
mental law are relevant for the implementation of the Treaty’, but it preferred to
base its reasoning on the text itself, one of the purposes of which it considered to be
environmental protection.
It referred to certain provisions of the 1977 Treaty which it considered to be by
nature evolutionary (the vague wording of Articles 15, 19, and 20 in which
reference is made to ‘protection’ of water, nature, or fishing) and concluded that
the continuing—and thus necessarily evolving—treaty obligation on the parties to
ensure that the quality of water in the Danube was not impaired meant taking
new environmental norms into consideration . . . By inserting these evolving provisions in
the Treaty, the parties recognized the potential necessity to adapt the Project. Consequently,
the Treaty is not static, and is open to adapt to emerging norms of international law.69
This included the important concept of sustainable development. While a teleo-
logical principle of interpretation to give maximum effect to provisions of a treaty
could not mean engaging in a process of rectification or revision,70 at the same time
the Court was mindful that, ‘in the field of environmental protection, vigilance and
prevention are required on account of the often irreversible character of damage to
the environment and of the limitations inherent in the very mechanism of repar-
ation of this type of damage’.71
Judge Weeramantry, in his Separate Opinion, referred to the principle of
‘contemporaneity’—ie the standards in force at the time of application—in the
application of environmental norms which could not ‘operate as though they were
frozen in time when the Treaty was entered into’, for in addressing such problems
which transcended the individual interests of the litigating states and their ‘paro-
chial concerns’ and looked beyond ‘to the greater interests of humanity and
planetary welfare . . . international law will need to look beyond procedural rules
fashioned for purely inter partes litigation’.72
Judge Bedjaoui, however, pointed out the limits of such an evolutionary ap-
proach based on concepts and terms which were inherently evolutionary; in the
69 Gabčíkovo-Nagymaros (n 67) paras 112 and 140. See also Kasikili/Sedudu Island (Botswana v
Namibia) [1999] ICJ Rep 1045, para 20: ‘In order to illuminate the meaning of words agreed upon in
1890, there is nothing that prevents the Court from taking into account the present-day state of
scientific knowledge, as reflected in the documentary material submitted to it by the Parties.’ See
F Zarbiev, ‘L’interprétation téléologique des traits comme moyen de prise en compte des valeurs
et intérêts environnementaux’ in H Ruiz Fabri and L Gradoni (eds), La circulation des concepts
juridiques: le droit international de l’environnement entre mondialisation et fragmentation (Paris: Editions
Société de législation comparée, 2009) 221–2. For comment from the perspective of international
environmental law see Fitzmaurice, in this volume, Chapter 15.
70 South West Africa cases (n 4) para 91.
71 Gabčíkovo-Nagymaros (n 67) para 140.
72 Gabčíkovo-Nagymaros (n 67), Separate Opinion of Judge Weeramantry, 118.
Namibia situation the very definition of the term ‘sacred trust’ was capable of
evolution whereas in his view the definition of the environment itself was static. He
objected to the notion that a state could incur unknown obligations for the future
or even the present.73
The debate arising from the Gabčíkovo-Nagymaros case goes to the heart of a
domain which involves evolving legal commitments in the face of changing
circumstances, ‘a virtually continuous legislative enterprise’. Environmental
treaty-making, particularly as expressed in framework conventions (multilateral
environment agreements, or MEAs), has become not ‘a one-off event’, but a process
which ‘institutionalizes change as opposed to “stability”’.74 While some have seen
in the treaty-making process of MEAs a form of law-making within an, albeit
dynamic, consensualist treaty framework from which these norms derive their
validity, others see it as an alternative to standard treaty law approaches, indeed
as an autonomous form of law-making—an embryonic legislative mechanism.75
The human rights treaty bodies, relying very much on the Court’s pronounce-
ment in the Namibia Opinion, have also approached their respective treaties as
‘living instrument[s] which must be interpreted in the light of present-day condi-
tions’, upholding their fundamental and non-synallagmatic nature.76 In so doing
they in fact set the biggest challenges to the unity of the VCLT regime, drawing their
own conclusions with regard to interpretation and to the permissibility, effects, and
severability of reservations formulated by states to their respective instruments, as
well as to suspension and termination of treaty obligations prompted by a material
breach and state succession.77
The VCLT, while recognizing the need to have special provisions for the
constituent instruments of international organizations in respect of reservations
and amendments, does not distinguish between different types of treaties when it
comes to interpretation. In principle, therefore, the Charter should be interpreted
on the basis of Article 31. The Court stated in the Certain Expenses case that in
previous cases relating to Charter interpretation ‘it . . . followed the principles and
rules applicable in general to the interpretation of treaties’.78 In the Admission case,
the Court, referring to Article 4 of the Charter, stated: ‘To warrant an interpret-
ation other than that which ensues from the natural meaning of the words, a
73 Gabčíkovo-Nagymaros (n 67), Separate Opinion of Judge Bedjaoui, para 8.

74 C Redgwell, ‘Multilateral Environmental Treaty-Making’ in V Gowlland-Debbas (ed), Multilat-
eral Treaty-Making (n 21) 89, 90–2.
75 J Brunnée, ‘Reweaving the Fabric of International Law? Patterns of Consent in Environmental
Framework Agreements’, in R Wolfrum and V Röben, Developments of International Law in Treaty

Making (Berlin: Springer, 2005) 101.
76 See eg Austria v Italy (1961) 4 Ybk ECHR 138 (ECnHR), 140; also Ireland v UK (1978)
2 EHRR 25 (ECtHR), para 239; Matthews v UK (1999) 28 EHRR 361 (ECtHR), para 39; also Effect
of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 77)
(Advisory Opinion) OC-2/82 of 24 September 1982, Ser A, No 2 (IACtHR), paras 28 and 29.
77 See Gowlland-Debbas, Law-Making in a Globalized World (n 21) 581 ff.
78 Certain Expenses (n 63) 157.
decisive reason would be required which has not been established.’79 To determine
the ordinary meaning it has looked at the context in which it is used and has
referred to the travaux préparatoires on occasion.
But the Court became conscious of the specific problems of interpretation of
such treaties which were both conventional and institutional. One had to look at
both the objectives assigned by the founders and ‘the imperatives associated with
the effective performance of its functions, as well as its own practice . . . ’80 These
special characteristics led the Court to its most interesting and consequential
departure from the ordinary meaning of the text, namely its resort to an object
and purpose test, interpreting the Charter by reference to two closely related
concepts: the concept of ‘institutional effectiveness’ and that of ‘implied powers’.
The Court famously stated the latter doctrine in the Reparations case: ‘[u]nder
international law the organization must be deemed to have those powers which
though not expressly provided in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties’.81 In short, it
expressed the view that the purposes set forth in Article 1 of the Charter can be
used to justify the exercise of power not expressly authorized.
One will recall the pronouncement by US Supreme Court Justice Holmes in
Missouri v Holland: a constituent instrument will ‘call into life a being the
development of which could not have been foreseen completely by the most gifted
of its begetters.’82 Judge Azevedo put the matter most forcefully:
the interpretation of the San Francisco instruments will always have to represent a teleo-
logical character if they are to meet the requirements of world peace, co-operation between
men, individual freedom and social progress. The Charter is a means and not an end. To
comply with its aims one must seek the method of interpretation most likely to serve the
natural evolution of the needs of mankind . . . even if the terms remain unchanged . . . 83
The Court has thus made a substantial contribution to the expansion of the powers
of the United Nations, irremediably entrenching changes, whether or not initially
politically driven. Thus it affirmed the Organization’s international personality in
the Reparation for Injuries case, and the expansion of the functions and powers of
79 Admission of a State to the United Nations (Charter, Article 4) [1947–8] ICJ Rep 57.
80 Nuclear Weapons (n 4) para 19.
81 Reparation for Injuries (n 35) 182; Use by a State of Nuclear Weapons (n 64), para 25: ‘[T]he
necessities of international life may point to the need for organizations, in order to achieve their
objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments
which govern their activities. It is generally accepted that international organizations can exercise such
powers, known as “implied” powers.’ The principle of implied powers was first intimated by the
Permanent Court of International Justice to the International Labour Organization in its Advisory
Opinion of 23 July 1926 (Competence of the International Labour Organisation to Regulate Incidentally
the Personal Work of the Employer (1926) PCIJ Ser B No 13). In Jurisdiction of the European Commission
of the Danube the Court noted: ‘As the European Commission is not a State but an institution with a
special purpose it only has the functions bestowed upon it by the Statute with a view to fulfilment of
this purpose but it has the power to exercise those functions to the fullest extent’ ((1927) PCIJ Ser B
No 14, 64).
82 State of Missouri v Holland 252 US 416, 433 (1920).
83 Competence of the General Assembly for the Admission of a State to the United Nations (Advisory
Opinion) [1950] ICJ Rep 4, Dissenting Opinion of Judge Azevedo, 23; see also Dissenting Opinion of
Judge Alvarez at 18: ‘[I]t is necessary when interpreting . . . the Charter . . . to look ahead.’
the political organs in the field of international peace and security in the Certain
Expenses case, noting in the latter case: ‘[w]hen the Organization takes action which
warrants the assertion that it was appropriate for the fulfilment of one of the stated
purposes of the UN, the presumption is that such action is not ultra vires.’84
It also bolstered the broad powers of the General Assembly in the Wall case by
confirming the legality of its actions under the Uniting for Peace resolution and
restricting the limitations of its powers under Article 12 of the Charter. Finally, it
gave the Security Council considerable leeway in affirming that it could take
binding decisions outside Chapter VII in the Namibia case.
But whereas the prime concern in the past had revolved around how to expand
the competence and powers of international bodies vis-à-vis restrictive assertions of
sovereignty by member states, one would do well today to turn to Hackworth’s
dissent in which he warned that ‘[p]owers not expressed cannot freely be implied.
Implied powers flow from a grant of express powers, and are limited to those that
are “necessary” to the exercise of powers expressly granted.’85 Thus the Appeals
Tribunal in the Tadić case, while clearly relying on a teleological interpretation of
its own Statute, preferred to find the legal basis for the Tribunal’s creation in the
specific powers of the Council under Chapter VII, Article 41, rather than resort to
the more open-ended basis of Article 24 which establishes the general powers of the
Council, as the ICJ had done in Namibia, though in doing so it instrumentalized
justice as only a means for achieving peace.86
As to the intention of the parties in treaty interpretation, the Court interestingly
considered that the fact that the General Assembly had taken the initiative in
respect of the Genocide Convention, had drawn it up and opened it for signature
and accession by states within its halls, and that ‘express provisions of the Conven-
tion (Articles XI and XVI) associate the General Assembly with the life of the
Convention’, meant that the intention of the General Assembly, the objects it
pursued and its will when interpreting the Convention had to be ascertained in
addition to that of the parties, even though the UN was not a signatory.87 In short,
the Convention was to be seen as one of the means of effectuating the human rights
purposes of the UN Charter and constituted a permanent interest of direct concern
to the United Nations which had not disappeared with the entry into force of the
Convention. As pointed out, the UN had a ‘legal interest’ independent of, though
in parallel with, the contracting parties, in the interpretation and implementation
of the public interests reflected therein.88
In its recent Kosovo Advisory Opinion, the Court recalled the factors relevant
to interpretation of Security Council resolutions in examining the unilateral
84 Certain Expenses (n 63). See also Effect of Awards of Compensation made by the United Nations
Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47.

86 Prosecutor v Dusko Tadić ‘Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction’ (Appeal Chamber) (2 October 1995) IT-94-1-AR72 (ICTY), paras 32–6.

87 Reservations to the Genocide Convention (n 60) 19.
88 See P Weis, ‘The 1967 Protocol Relating to the Status of Refugees and Some Questions of the
Law of Treaties’ (1967) 42 BYIL 470.

declaration of statehood in the light of the object and purpose of Resolution 1244
(1999). While it considered that the rules on treaty interpretation embodied in
Articles 31 and 32 of the VCLT could offer guidance, the Court nevertheless
distinguished between Security Council resolutions and treaties, in that the former
also required that other factors be taken into account. Thus the Court stated:
Security Council resolutions are issued by a single, collective body and are drafted through a
very different process than that used for the conclusion of a treaty. Security Council
resolutions are the product of a voting process as provided for in Article 27 of the Charter,
and the final text of such resolutions represents the view of the Security Council as a body.
Moreover, Security Council resolutions can be binding on all Member States irrespective of
whether they played any part in their formulation. The interpretation of Security Council
resolutions may require the Court to analyse statements by representatives of members of
the Security Council made at the time of their adoption, other resolutions of the Security
Council on the same issue, as well as the subsequent practice of relevant United Nations
organs and of States affected by those given resolutions.89
It will be noted that the ICJ in this Opinion relied inter alia on the subsequent
practice of the international organization, as it had done in Namibia with regard to
the evolution of the right to self-determination and the Wall case in respect of inter
alia Article 12 of the Charter; the VCLT is of course concerned only with the
subsequent practice of the states parties.
The Court also adopted a systemic approach in the WHO Nuclear Weapons
Opinion, in considering that its Constitution could only be interpreted by the logic
of the overall system contemplated by the Charter which referred to the functional
decentralization of the UN system.90
The ICJ’s evolutionary interpretation of constituent instruments has been
adopted by some international organizations in responding to the need to internal-
ize fundamental community values. In the WTO, the Appellate Body found by
reference to Namibia that the term ‘exhaustible natural resources’ in Article XX(g)
of the GATT 1994 was ‘by definition evolutionary’, and that it ‘must be read by a
treaty interpreter in the light of contemporary concerns of the community of
nations about the protection and conservation of the environment’.91 Other insti-
tutions have also considered their constituent instruments to be evolutionary in
nature. The World Bank, coming under pressure with regard to the adverse human
89 Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, [2010] ICJ Rep 403, 442, para 94. The Court recalled its previous statement in Namibia (n 62)
para 114: ‘The language of a resolution of the Security Council should be carefully analysed before a
conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25,
the question whether they have been in fact exercised is to be determined in each case, having regard to
the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions
invoked and, in general, all circumstances that might assist in determining the legal consequences of
the resolution of the Security Council.’
90 Use by a State of Nuclear Weapons (n 64) paras 21 and 26.
91 United States: Import Prohibition of Certain Shrimp and Shrimp Products AB WTO Report
(12 October 1998) WT/DS58/AB/R, paras 129–30. See also EC Measures concerning Meat and Meat
Products (Hormones), AB WTO Report (16 January 1998) WT/DS26/AB/R regarding the precautionary
principle.
rights and environmental impacts of its development funded projects, for example,
has also, through practice and by means of a teleological approach, read the concept
of sustainable development into its mandate.
3.4 Collective interests and reservations to treaties

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

93 See General Comment No 24(52) (1994) of the Human Rights Committee.
94 Armed Activities (DRC v Rwanda) (Jurisdiction and Admissibility) (n 34) paras 56–7.
95 See eg Legality of Use of Force (Yugoslavia v Spain) (Provisional Measures) [1999] ICJ Rep 761,
paras 32–3; Legality of Use of Force (Yugoslavia v USA) (Provisional Measures) [1999] ICJ Rep 916,
paras 24–5.
in conformity with the object and purpose of the Genocide Convention. The
Court also stated: ‘The fact that a dispute relates to compliance with a norm having
such a [ jus cogens] character, which is assuredly the case with regard to the prohib-
ition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to
entertain that dispute. Under the Court’s Statute that jurisdiction is always based
on the consent of the parties.’96 Here the Court departed from the views expressed
by the human rights bodies.97
However, as some of the judges pointed out, the procedural nature of a treaty
clause did not preclude it from being a part of the treaty’s object and purpose.98
Moreover, as Judge Koroma pointed out, Article IX of the Genocide Convention
was indeed part of the object and purpose of the treaty, its very raison d’être, which
is the prevention and punishment of the crime of genocide, because ‘it is the only
avenue for adjudicating the responsibility of states’.99
3.5 Collective interests and state succession

Outside the scope of issues regulated in the VCLT, it is worth noting the potential
impact of arguments based on hierarchy on state succession.100 The dissolution of
the Former Yugoslavia, the Soviet Union, and Czechoslovakia has provoked a
debate on state succession, arising not only from the confusion surrounding these
rules, which the 1978 Vienna Convention on the Succession of States in respect of
Treaties101 has not served entirely to clarify, and the great variety of circumstances
in which these rules are to be applied, but also in relation to the question of
succession to human rights treaties.
In the Application of the Genocide Convention case, the ICJ did not clarify
the issue as it did not need to go into the question of state succession (shelved by
Article 73 of the VCLT) since at all events Bosnia was a party to the Convention on
the date of the filing of its application, but it did say that this was ‘[w]ithout
prejudice as to whether or not the principle of “automatic succession” applies in the
case of certain types of international treaties or conventions’ and recalled its 1951
Advisory Opinion with regard to the non-synallagmatic nature of the Genocide
Convention.102
96 Armed Activities (DRC v Rwanda) (Jurisdiction and Admissibility) (n 34) paras 64–70. See also
Jurisdictional Immunities (n 18) para 93, in which the Court considered that there could be no conflict
between a rule of jus cogens and the customary law rules on State immunity since the latter were
procedural in character.
97 See eg Loizidou v Turkey (Preliminary Objections) (1995) 102 ILR 662 ECtHR (GC); Kennedy
v Trinidad and Tobago (No 845/1999) (UN Doc CCPR/C/67/D/845/1999) (UNHRC).

98 Armed Activities (DRC v Rwanda) (Jurisdiction and Admissibility) (n 34), Joint Separate
Opinion of Judges Higgins, Kooijmans, Elaraby, Owada, and Simma, para 21.
99 Armed Activities (DRC v Rwanda) (Jurisdiction and Admissibility) (n 34), Dissenting Opinion
of Judge Koroma, paras 11–13.

100 Cf Andreas Zimmermann’s contribution to the present book at Chapter 4.
101 23 August 1978, 1956 UNTS 3.
102 Application of the Convention on the Prevention and Punishm]ent of the Crime of Genocide (Bosnia
and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595, paras 20–4.
However, in their Separate Opinions, Judges Parra-Aranguren, Shahabuddeen,

and Weeramantry expressly stated that the humanitarian nature of the Genocide
Convention and its object and purpose required a construction to be placed upon
them to the effect that they constitute the expression of a unilateral undertaking by
existing parties to treat successor states as parties with effect from the date of
emergence into independence, thus avoiding any break in the protection it
afforded, for its non-performance would adversely affect the people of Bosnia and
Herzegovina.103 This was reiterated by the ICTY:104
It may be now considered in international law that there is automatic state succession to
multilateral humanitarian treaties in the broad sense, ie, treaties of universal character which
express fundamental human rights. It is noteworthy that Bosnia and Herzegovina itself
recognized this principle before the ICJ.
The human rights treaty bodies, anxious to preserve the application of their
respective treaties, have pushed for their automatic application to a seceding state—
rather than an application which is dependent on a declaration of confirmation—
from the date of its independence.105
3.6 The special nature of the United Nations Charter

Finally, the ICJ has taken into account the special nature of the UN and the
hierarchically superior nature of Charter obligations as reflected in Article 103 of
the Charter, Article 30(1) of the VCLT and Article 59 of the Articles on State
Responsibility. It has referred to Article 103 only in relation to treaties, thus
quashing any interpretation of the provision that would include the primacy of
the Charter over customary international law.106
In the Lockerbie (Provisional Measures) case, the Court grounded its dismissal of
Libya’s request on the annihilation of the rights claimed for protection under the
Montreal Convention107 relating to aut dedere aut judicare, which were trumped by
Libya’s obligations under the mandatory Security Council Resolution 748 (1992)
by virtue of Article 103, although later, in the Preliminary Objections phase, it
referred to the critical date for the assumption of jurisdiction as being the date of
103 Bosnian Genocide (n 102), at 656, 637 and 645–50, respectively. In that case Yugoslavia
disputed a Notice of Succession to the Genocide Convention by Bosnia and Herzegovina with effect
from the date of its independence (6 March 1992), claiming that the rule of ‘automatic succession’
necessarily applied since the Genocide Convention was an instrument intended for the protection of
human rights.
104 Prosecutor v Delalic et al ‘Judgment’ (Appeals Chamber) (20 February 2001) Case IT-96-21
(ICTY), para 111.

105 See eg General Comment No 26 on Continuity of Obligations (1997) (CCPR/C/21/Rev.1/
Add.8/Rev.1) 4.
106 See Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA) ( Jurisdic-
tion and Admissibility) [1984] ICJ Rep 392, para 107, and Questions of Interpretation and Application
of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v UK) (Libya v
USA) (Provisional Measures) [1992] ICJ Rep 3 and 114, respectively.
107 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,
23 September 1971, 974 UNTS 177.

Libya’s deposit of its application, which preceded Security Council Resolution 748.
Article 103 was subsequently to be relied upon, inter alia, in the judgments of the
Luxembourg Court of First Instance in the Kadi and Yusuf cases108 in order to
override the provisions of human rights treaties, other than those strictly of a jus
cogens or peremptory character.
But at the same time, the ICJ has set limits to Security Council resolutions. In
the Namibia Opinion, the Court, expressly upholding the General Assembly’s right
to terminate the South West Africa Mandate on account of material breach,
nevertheless implicitly relied on Article 60(5) of the VCLT constituting an excep-
tion to the suspension and termination of treaties following a material breach
flowing from the special nature of treaties with a humanitarian objective. It held
that the obligations of states flowing from a Security Council resolution (276
(1970)) not to enter into treaty relations with South Africa could not ‘be applied
to certain general conventions such as those of a humanitarian character, the non-
performance of which may adversely affect the people of Namibia’.109
4. The ICJ and the unity of the international system
There has been a tendency to decry the trend towards fragmentation and compart-
mentalization of particular sectoral and functional fields of international law which
have purportedly become self-contained, and to query whether one can still refer to
a comprehensive and uniform system of general international law. The VCLT
contains some formal legal techniques to cope with the normative conflicts that
may arise between regimes on the basis of status or hierarchy ( jus cogens and Article
103 of the Charter), and temporality (Articles 30 and 41 of the VCLT). The
principle of specificity (lex specialis) was not incorporated in the VCLT.110 Along-
side fragmentation, however, there has been a very visible process of linking up
various areas which in the past were hermetically sealed off from one another.111
The VCLT proposes a rule tending towards harmonization rather than exclusion
based on relationships of priority (Article 31(3)(c)) expressing what could be called
a principle of ‘systemic integration’. These principles have been incorporated in the
study carried out by the ILC on the topic of fragmentation of international law.112
108 Kadi v Council and Commission [2005] ECR II-3649; Yusuf & Al Barakaat International
Foundation v Council and Commission [2005] ECR II-3533.

109 Namibia (n 62) 56.
110 See ILC, Fifty-Eighth Session, Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law. Report of the Study Group of the International Law
Commission, finalized by M Koskenniemi (A/CN.4/L.682, 13 April 2006).
111 See V Gowlland-Debbas, ‘Issues Arising from the Interplay between Different Areas of Inter-
national Law’ (2010) 63 Current Legal Problems 597.

112 ILC Fragmentation Report (n 110) paras 107 and 480. W Mansfield states in his study on the
interpretation of treaties in the light of Art 31(3)(c), which was integrated into the finalized report:
‘From having been a series of distinct conversations in separate rooms, the process of treaty-making is
now better seen as akin to a continuous dialogue within an open-plan office’: see W Mansfield, ‘The
interpretation of treaties in the light of “any relevant rules of international law applicable in the
relations between the parties” (article 31(3)(c) of the Vienna Convention on the Law of Treaties), in
I would like to turn to the Court’s contribution to this process and in particular
to the way it has dealt with the conflict and linkages between different fields of
international law in the context of the law of treaties.
The PCIJ had already had occasion to endorse both the lex specialis and the lex
posterior rule when faced with two separate instruments bearing on its jurisdic-
tion.113 Generally speaking, as Chinkin and Boyle have pointed out, ‘the case-law
of the International Court of Justice suggests that where possible it prefers an
integrated conception of international law to a fragmented one’,114 although it
must be said that it has also given impetus to the concept of self-contained regimes
in the framework of state responsibility.115
One valuable and innovative contribution the Court has made, subsequently
followed by the human rights treaty bodies, has been its demonstration of the
continuing applicability of human rights in armed conflict, as well as its underlin-
ing of the unity and indivisibility of human rights treaties. It will be recalled that the
VCLT excludes from its scope the question of the continuing existence of treaties in
armed conflict (Article 73).
In its Nuclear Weapons Opinion, the Court, having confirmed the continued
applicability of the International Covenant on Civil and Political Rights
(ICCPR)116 in time of armed conflict (outside of derogations), maintained never-
theless that any interpretation of the right to life was to be done in the light of the lex
specialis of humanitarian law.117 It is unfortunate that in this Opinion the Court
utilized the concept of lex specialis in an exclusionary fashion in order to dismiss the
relevance of human rights law altogether with regard to the legality of nuclear
weapons, disregarding the fact that the notion of what amounts to ‘arbitrary’
deprivation of life under the ICCPR should also have been interpreted in the context
of the treaty as a whole, in the light of its object and purpose, and against constantly
evolving standards, for the ICCPR has been acknowledged as a living instrument.118
However, in its Advisory Opinion in the Wall case, the Court took a leap
forward in also accepting the principle of complementarity:
the context of general developments in international law and concerns of the international commu-
nity’, Doc ILC(LVI)/SG/FIL/CRD.3/Rev. 1 (2004), at 7.
113 See Mavrommatis (n 39), in which the PCIJ upheld the special and more recent agreement, in
this case the 1923 Protocol XII of the Treaty of Lausanne, over the 1922 Mandate for Palestine.
114 A Boyle and C Chinkin, The Making of International Law (Oxford: OUP, 2007) 211. On Art
31(3)(c) see C McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna
Convention’ (2005) 54 ICLQ 279.
115 United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, para 86.
116 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171.
117 Nuclear Weapons (n 4) 240, para 25.
118 See the link made by the Human Rights Committee between the right to life and the
corresponding duty of states to prevent war, genocide, and other forms of mass violence (Comment
no 6/16 (1982)). The Court did not consider the general rules on environmental law to have displaced
the more specific rules on the use of force (Boyle and Chinkin (n 114) 251). This reference to the
principle of the lex specialis by the ICJ entered into the initial work of the ILC on the Effect of Armed
Conflict on Treaties, but then disappeared from the text. See the second and third reports of the former
Special Rapporteur, Ian Brownlie (UN Docs A/CN.4/570, 16 June 2006 and A/CN.4/578, 1 March
2007).
As regards the relationship between international humanitarian law and human rights law,
there are thus three possible situations: some rights may be exclusively matters of inter-
national humanitarian law; others may be exclusively matters of human rights law; yet others
may be matters of both these branches of international law. In order to answer the question
put to it, the Court will have to take into consideration both these branches of international
law, namely human rights law and, as lex specialis, international humanitarian law.119
This passage was reiterated in the Congo v Uganda case,120 demonstrating conclu-
sively that international humanitarian law and human rights operate side by side
during an armed conflict. Moreover, in these cases, as well as in the subsequent
Georgia v Russia case, the Court also accepted the extraterritorial nature of human
rights instruments, essential to their application in an international armed conflict.
The Court stated that in the silence of the Convention on the Elimination of Racial
Discrimination (CERD)121 as to its territorial application, its provisions ‘generally
appear to apply, like other provisions of instruments of that nature, to the actions of
a State party when it acts beyond its territory’.122
This has opened the door to a proliferation of cases before the human rights
treaty bodies dealing with human rights in armed conflict situations. The Human
Rights Committee has equally moved away from the lex specialis articulation
of the relationship between international human rights law and international
humanitarian law in its General Comment No 31; the Inter-American Commis-
sion and Court have interpreted and even applied IHL, while the European Court
of Human Rights has gone further in applying human rights law exclusively in
time of armed conflict—admittedly in an internal armed conflict situation and
in the absence of a derogation under the European Convention on Human
Rights.123
In Gabčíkovo-Nagymaros, the Court considered that in addition to the 1977
Treaty, the rules of which were lex specialis, the relationship between the parties was
also determined by the rules of other relevant conventions to which the two states
were party, and by the rules of general international law, including the rules of state
responsibility on which it relied.124
The human rights treaty bodies have also referred to the rules of interpretation of
Article 31(3)(c) of the VCLT, in considering that they are bound to take into
account ‘any relevant rules of international law applicable in the relations between
119 Wall case (n 19) para 106.

120 Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168, para 216.
The Court found that both massive human rights violations and grave breaches of international
humanitarian law had been committed by Ugandan military forces on the territory of the DRC.
121 International Convention on the Elimination of All Forms of Racial Discrimination,
21 December 1965, 660 UNTS 195.

122 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v Russia) (Provisional Measures) [2008] ICJ Rep 353, para 109.
123 See eg Isayeva,Yusupova and Bazayeva v Russia (Application nos. 57947/00, 57948/00 and
57949/00) Judgment of 24 February 2005 (ECtHR).

the parties’, including international humanitarian law.125 Such methods of inter-

pretation have been resorted to by other bodies, including the WTO.126
However, it has been pointed out that there are limits to such a method of
interpretation. Constraints on the ICJ’s resort to Article 31(3)(c) were invoked in
the Oil Platforms case in which it considered whether the measures justified by the
United States under Article XX(1)(d) of the 1955 Treaty of Amity, Economic
Relations and Consular Rights between the United States and Iran as measures
necessary to protect its essential security interests, constituted an unlawful use of
force by reference to customary international law and the UN Charter.127 Judge
Buergenthal was concerned that the Court, by relying on such methods of treaty
interpretation, had thus widened the scope of its jurisdiction, while Judge Higgins
stated: ‘The Court has, however, not interpreted [the treaty] by reference to the
rules on treaty interpretation. It has rather invoked the concept of treaty interpret-
ation to displace the applicable law.’128
The Court has considered the relationship between treaty law and customary
international law, the North Sea Continental Shelf case being the classic pronounce-
ment in which the Court confirmed the role of treaties in the crystallization of
emerging norms and the codification of customary law, while upholding the
possibility of a provision of a ‘fundamentally norm-creating character’ in a multi-
lateral treaty to generate new customary law.129 Thus the Court, in each case in
which it has had to deal with a provision of the VCLT, has considered that the
provision in question had achieved customary law status.
But it has also confirmed the continuing separate or parallel existence of
customary law rules even as between the treaty parties.130 Customary law rules
can thus affect such conventional obligations. In its Nuclear Weapons Advisory
Opinion, the Court did indeed affirm that the customary law dual conditions of
necessity and proportionality applied to Article 51 of the UN Charter.131 This is an
important affirmation that customary law rules can supplement or serve as inter-
pretative tools for Charter obligations.
The ICJ has also had to look at the relationship between the law of treaties and
the law of state responsibility excluded by Article 73 from the scope of the VCLT
which did not cover the rules relating to non-performance of treaty obligations. In
125 See eg Loizidou v Turkey (Merits) 40/1993/435/514 (28 November 1996) (ECtHR), para 43;
Coard et al v US Judgment of 29 September 1999 (IACtHR), para 40.

126 For example, WTO, European Communities—Measures affecting the Approval and Marketing of
Biotech Products, Reports of the Panel, 29 September 2006 (WT/DS291/R, WT/DS292/R, WT/DS
293/R).
127 Oil Platforms (Iran v USA) [2003] ICJ Rep 161, paras 41–2.
128 Oil Platforms (n 127), Separate Opinions of Judges Higgins and Buergenthal, 238, paras 49
and 279, para 22, respectively. See D French, ‘Treaty Interpretation and the Incorporation of
Extraneous Legal Rules’ (2006) 55 ICLQ 281, 286–91.
129 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands) [1969] ICJ Rep 3,
para 71.
130 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986]
ICJ Rep 14, paras 175–9.

131 Nuclear Weapons (n 4) 242–3, paras 28–33.
Gabčíkovo-Nagymaros, the Court played a role in the unification of codification
efforts in international law; it distinguished between the law of treaties and the law
of state responsibility while at the same time demonstrating the points of contact
between the two.132 As has been seen, Hungary, in addition to relying on the law of
treaties, namely the impossibility of performance of the 1977 Treaty, the occur-
rence of a fundamental change of circumstances, and the material breach of the
Treaty by Czechoslovakia, had justified its suspension and termination of the 1977
Treaty on grounds of ecological necessity, thus drawing on the law of state
responsibility; whereas Slovakia had approached the treaty as a self-contained
regime containing its own rules on responsibility.
In looking at the relationship between a circumstance precluding wrongfulness
and termination of a treaty, the Court, while demonstrating the points of contact
between these two functional regimes, considered that the law of state responsibility
and the law of treaties had distinct scopes: the determination of whether a
convention is or is not in force and whether all conditions to suspend it or
denounce it have been fulfilled was to be made on the basis of the law of treaties;
but the extent to which a state’s conduct was incompatible with the treaty was to be
made under the law of state responsibility, regardless of the nature of the obligation
involved.133 Hence a distinction had to be drawn between the effect of circum-
stances precluding wrongfulness and the termination of the obligation itself.
[E]ven if a state of necessity is found to exist, it is not a ground for the termination of
a treaty. It may only be invoked to exonerate from its responsibility a State which has
failed to implement a treaty. Even if found justified, it does not terminate a treaty . . . As
soon as the state of necessity ceases to exist, the duty to comply with treaty obligations
revives.134
This distinction also emerged clearly from the 1990 Rainbow Warrior arbitration,
in which the Tribunal held that both the law of treaties and the law of state
responsibility had to be applied, the former to determine whether the treaty was
still in force, the latter to determine what the consequences were of any breach of
the treaty while it was in force, including the question whether the wrongfulness of
the conduct in question was precluded.135
At the same time, the case of Gabčíkovo-Nagymaros demonstrates the Court’s
concern with the stability of treaty relations. Addressing Hungary’s grounds for
termination of the 1977 Treaty with Czechoslovakia, the Court confirmed its
previous ruling as to the need to prove the fundamental character of the change
of circumstances; it observed that many circumstances invoked by Hungary to
justify unilateral termination of the 1977 Treaty were not ‘of such a nature . . . that
132 Gabčíkovo-Nagymaros (n 67).

133 Gabčíkovo-Nagymaros (n 67) paras 47 and 101. Art 73 of the Vienna Convention expressly
excludes from its scope the effects of a denunciation or suspension of a treaty contrary to the conditions
it lays down.
135 Rainbow Warrior (New Zealand/France) (1990) 20 RIAA 215 para 75.
their effect would radically transform the extent of the obligations still to be
performed’.136 As for supervening impossibility of performance, the Court pointed
out that the VCLT limits the possibility of invoking this ground to situations
featuring the ‘permanent disappearance or destruction of an object indispensable
for the execution of the treaty’, which was not the case here. Moreover, impossi-
bility of performance could not be invoked by Hungary in relation to its own failure
to perform its obligations.137 It equally adopted a restrictive view of termination of
treaties, underlining that ‘it is only a material breach of the treaty itself, by a State
party to that treaty, which entitles the other party to rely on it as a ground for
terminating the treaty’. The violation of other treaty rules could constitute a ground
for the taking of certain measures, such as countermeasures, but not for termination
of the treaty.138
It has also underlined in a number of cases the importance of the rule pacta sunt
servanda and the principle that a treaty must be performed in good faith. In
Gabčíkovo-Nagymaros, the Court pointed out that ‘[w]hat is required in the present
case by the rule pacta sunt servanda is that the Parties find an agreed solution within
the co-operative context of the Treaty’.139 The Court stated that it
would set a precedent with disturbing implications for treaty relations and the integrity of
the rule pacta sunt servanda if it were to conclude that a treaty in force between States, which
the parties have implemented in considerable measure and at a great cost over a period of
years, might be unilaterally set aside on grounds of reciprocal noncompliance. It would be
otherwise, of course, if the parties decided to terminate the Treaty by mutual consent. But in
this case, while Hungary purported to terminate the Treaty, Czechoslovakia consistently
resisted this act and declared it to be without legal effect.140
This contribution has attempted to give an impressionistic view of the impact the
ICJ has had on the development of the contemporary law of treaties. Generally
speaking, it may be said that the contribution of the ICJ’s case law to the new
exigencies of international law-making has been an important one. At the same
time, the Court has been conscious of the limits of such an approach and of the
necessity of reinforcing the traditional law of treaties. While, therefore, it has been
sensitive to the need to approach treaty relations against the background of an
evolutive international system, it has also, as in the Gabčíkovo-Nagymaros case,
upheld and reaffirmed the principle that every treaty in force is binding upon the
parties and must be performed in good faith, and has narrowly interpreted justifi-
cations for opting out of treaty obligations.
136 Gabčíkovo-Nagymaros (n 67) para 104. 137 Gabčíkovo-Nagymaros (n 67) paras 102–3.
139 Gabčíkovo-Nagymaros (n 67) para 142. On the obligation to negotiate in good faith, see also
Nuclear Weapons (n 4) 26–34, para 99.

Though increasingly called upon by states to address the hard questions that are
of concern to the international community as a whole—be they related to armed
conflicts or serious violations of human rights—the ICJ, an institution set up in a
world where bilateral and subjective relations between states continue to prevail,
has not always been able to respond to contemporary expectations. As an inter-state
Court whose jurisdiction is based on consent, it is also not able to accommodate the
voices of non-state actors, which are today important vehicles of the ‘dictates of
the public conscience’, nor international organizations in contentious cases, despite
the important place they occupy today.
Yet the Court has also on several occasions been conscious that in interpreting or
applying the law, it could not make an abstraction of the human objectives behind
the rules nor of the values and finalities which impregnate the international legal
system. In the realm of treaty-making it has been conscious of the impact of the
substantive content of a treaty on its formal and procedural rules and it is
particularly in relation to furthering the concept of treaties with a collective interest
that it has been most responsive to current developments and the needs of the
international community.
4
The International Court of Justice and State
Succession to Treaties: Avoiding Principled
Answers to Questions of Principle
Andreas Zimmermann
1. Introduction
Much like the question of state responsibility, the issue of state succession to
treaties (and the preceding question of state identity/continuity versus state succes-
sion) does not relate to a specific substantive question or to the substance of specific
treaties. Rather, it raises fundamental questions of general relevance relating to the
personality of the state, and to the process by which a successor state may become
bound by the treaties its predecessor state previously entered into. These issues have
occupied international lawyers for centuries, and—notwithstanding occasional, but
greatly exaggerated, reports about the death of state succession—were propelled
back onto the agenda following the collapse of the Soviet Union and Yugoslavia
in the early 1990s. State succession and state identity were traditionally considered
to be governed by general international law or in agreements addressing specific
instances of state succession. In the 1970s, when the process of decolonization—as
the most important practical and political challenge to the then existing rules—had
largely been completed, the international community sought to codify general rules
on state succession to treaties and eventually agreed on the multilateral regime set
out in the 1978 Vienna Convention on the Succession of States in respect of
Treaties (VCSST).1 However, as is well known, that multilateral framework has not
proved overly successful: the Convention entered into force in 1996, but at the
time of writing, thirty-five years after its adoption, it has attracted no more than
twenty-two states parties2 and its substance remains to a large extent controversial.
Given this legal context, one might perhaps have expected the International
Court of Justice (ICJ, or ‘the Court’), over the years, to have contributed in
123 August 1978, 1946 UNTS 3.

2For details see the information provided at <http://treaties.un.org/Pages/ViewDetails.aspx?src=
TREATY&mtdsg_no=XXIII-2&chapter=23&lang=en> (accessed 17 May 2013).
significant measure to the consolidation and clarification of the legal regime of state
succession. However, for two reasons, the Court’s impact has been fairly limited.
First, while state succession has been a major aspect of international relations since
1945, the number of ICJ cases pertaining to it has been relatively small. Second,
and more importantly, when issues of succession have arisen, the Court (with one
exception3) has avoided addressing them in a principled way, opting instead to
decide the underlying issues on a case-by-case basis, be it for reasons of judicial
expediency or due to a lack of consensus among the members of the bench. As a
consequence, the legal regime of state succession remains controversial to this date.
Indeed, recent instances of international practice—such as the collapse of the Soviet
Union, the dissolution of the former Yugoslavia in the 1990s (together with the
subsequent separation of Montenegro from the State Union of Serbia and Monte-
negro in 2006 and the process of secession of Kosovo from Serbia), the dissolution
of Czechoslovakia in 1993, German reunification in 1990 and the unification of
the two Yemeni states in 1990, as well as most recently the separation of South
Sudan from Sudan in 2012—have not followed any hard and fast legal rules.
Against this background, the subsequent sections of this contribution evaluate
the Court’s jurisprudence on questions of state succession to treaties. While the
main body of the chapter (section 3) analyses issues of succession proper, section 2
revisits the Court’s approach to the preliminary question of distinguishing state
succession from state identity/continuity.
2. Distinguishing state succession from state

identity/continuity in the jurisprudence of the ICJ
Questions of state succession only arise if ‘one State [is replaced] by another in the
responsibility for the international relations of territory’.4 As such, a ‘replacement’
requires in most cases (the cession of territory being the sole exception) a rupture in
the state’s personality. Accordingly, succession needs to be distinguished from
instances of state identity and continuity, in which treaties simply continue to
apply in relation to the ‘new state’ (or rather, the same legal subject in its new
incarnation). Yet while the distinction is clear in theory, its application can at times
be difficult, as no firm criteria for distinguishing succession from continuity/
identity exist.
Issues of state identity/continuity versus state succession are of particular rele-
vance in proceedings before the ICJ. Of course, the decision on this preliminary
question will often determine whether a specific treaty between two states parties
applies as a matter of substantive international law. However, in addition, where
the Court’s jurisdiction is based on a compromissory clause,5 it may be crucial to
3 See 3.4, for comment on the Court’s treatment of localized treaties and boundaries.
4 VCSST, Art 2(1)(b).
5 The Court has yet to deal with the issue as to whether declarations under Art 36, para 2 ICJ
Statute are subject to state succession; for the view that Art 36, para 2 declarations are indeed subject to
State Succession to Treaties 55
determining whether the Court has jurisdiction to entertain the case in the first
place.
In most instances a claim of state identity is either generally accepted by the
international community at large or, at the very least, is not challenged by either
side. In these cases, the Court typically does not feel the need to address it in any
detail. For example, in the recent Case Concerning Jurisdictional Immunities of the
State between Germany and Italy,6 the Court could simply take it for granted that
the Federal Republic of Germany (the claimant) was identical to the state respon-
sible for violations of international law during World War II (which the Court
referred to as the ‘German Reich’).7 As Germany’s conduct during World War II
was not within the Court’s jurisdiction ratione temporis,8 any pronouncement
would have been by way of obiter dictum.
The situation was somewhat less obvious in the Case Concerning Application of
the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v Russia).9 The relevant treaty eventually providing for the Court’s
jurisdiction, namely the Convention on the Elimination of Racial Discrimination
(CERD),10 had been ratified by the USSR in 1969. Yet, the position and practice
of the successor states of the USSR as to the identity of the USSR on the one hand
and that of the Russian Federation on the other, had been, to say the least,
equivocal and less than uniform.11 Nevertheless, with regard to the treaty at
hand, the applicant, Georgia,12 had claimed that ‘the Russian Federation was a
party to CERD “by virtue of its continuation of the State personality of the
USSR”’,13 a claim that was not disputed by the Russian Federation. This led the
Court to find that ‘the Russian Federation, as the State continuing the legal
personality of the Union of Soviet Socialist Republics’, was accordingly a party to
the Convention on the Elimination of All Forms of Racial Discrimination (CERD)
without reservation.14
In the case of the relationship between the ‘former Yugoslavia’ (ie the Socialist
Federal Republic of Yugoslavia or ‘SFRY’) and the Federal Republic of Yugoslavia
applicable rules of state succession, see, J Verzijl, International Law in Historical Perspective, Part VIII
Inter-State Disputes and Their Settlement (Dordrecht: Martinus Nijhoff, 1974) 424–6. But see also
R Szafarz, The Compulsory Jurisdiction of the International Court of Justice (Leiden: Brill, 1993) 79. For a
more detailed analysis of the matter see A Zimmermann, Staatennachfolge in völkerrechtliche Verträge—
zugleich ein Beitrag zu den Möglichkeiten und Grenzen völkerrechtlicher Kodifikation (Heidelberg/Berlin,
Springer, 2000) 660 ff.
6 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of
3 February 2012, <http://www.icj-cij.org/docket/files/143/16883.pdf> (accessed 17 May 2013).

7 As to the issue of the identity of the Federal Republic of Germany with the German Reich, see
generally Zimmermann (n 5) 82–3 with further references.

8 Jurisdictional Immunities (n 6) paras 42–8.
9 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v Russia) (Provisional Measures) [2008] ICJ Rep 353.

10 21 December 1965, 660 UNTS 195.
11 Zimmermann (n 5) 85–97.
12 As to the situation of Georgia vis-à-vis CERD see 3.2.
13 Georgia v Russia (n 9) para 87. 14 Georgia v Russia (n 9) para 105.
(‘FRY’, reconstituted in 2003 as State Union of Serbia and Montenegro) the
Court’s position, taken in various cases and various phases of the same cases, was,
to use a famous phrase used by the Court itself in a related context, ‘not free from
legal difficulties’.15 After all, the Court’s position was based on and related to the
status of ‘Yugoslavia’ within the system of the United Nations, whose political
organs had taken a series of decisions that were contradictory.16 While the political
organs had found that the ‘former Yugoslavia’ had ceased to exist, the only
consequence of this was that it was no longer able to participate in the work of
the General Assembly.17 It is against this background that the Court, in its order on
provisional measures of 8 April 1993, in the Bosnian Genocide case, made reference
to Article 35(2) of the Statute of the ICJ,18 which implied that the respondent state
‘Yugoslavia’ did not have access to the Court under Article 35(1) and that it was
accordingly no longer a member of the United Nations. The resultant implication
was that the FRY, founded on 27 April 1992, was not identical with the SFRY. This
was confirmed in the Court’s second order on provisional measures in the same case
where it considered whether the FRY might be bound by a 1919 treaty on the
protection of minorities concluded by the Kingdom of the Serbs, Croats and
Slovenes ‘as successor of that Kingdom’19 rather than being identical with said
Kingdom.
In its 1996 Judgment on jurisdiction in the Bosnian Genocide case,20 the Court
no longer relied on Article 35(2), which it did not mention at all; instead it simply
took it for granted that the FRY continued to be a member of the United Nations
which, by necessary implication, presupposed that the FRY was identical with the
former Yugoslavia, since the FRY had, at that time, not (yet) been admitted to the
organization.
In 2004, when dealing with several cases brought by the FRY against various
NATO states, the Court once again made a ‘demi-tour’ when determining that the
FRY, which in the meantime had changed its name to Serbia and Montenegro, had
not been a member of the United Nations at the relevant time. Here again, the
reasoning of the Court presupposed that the FRY/Serbia and Montenegro was not
15 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Yugoslavia) (Provisional Measures) [1993] ICJ Rep 3, para 18.
16 See, for such a proposition, KG Bühler, State Succession and Membership in International
Organizations: Legal Theories versus Political Pragmatism (Dordrecht: Martinus Nijhoff, 2001)
192–203.
17 For consideration of the whole series of these contradictory decisions and judgments see inter alia
V Dimitrijević and M Milanović, ‘The Strange Story of the Bosnian Genocide Case’ [2008] Leiden JIL
65; S Rosenne, ‘Capacity to Litigate in the International Court of Justice: Reflections on Yugoslavia in
the Court’ (2009) 80 BYIL 217, as well as most recently F Bordin, ‘Continuation of Membership in
the United Nations Revisited: Lessons from Fifteen Years of Inconsistency in the Jurisprudence of the
ICJ’ (2011) 10 Law and Practice of International Courts and Tribunals 315.
18 Bosnian Genocide (Provisional Measures) (n 15) 14–16.
19 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Yugoslavia) (Further Provisional Measures) [1993] ICJ Rep 325, 340; emphasis
added.
and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595.

the same state as the SFRY.21 While one might think that this reasoning would
have necessitated a reversal of the Court’s 1996 finding in the Bosnian Genocide
case, the Court found a way around this when the issue came before it in 2007.22 It
determined that its 1996 Judgment amounted to res judicata and, as such, the
Court was not required to review its 1996 finding on whether the SFRY and the
FRY were the same, a finding which the Court itself had reversed in its 2004
Judgments.
Finally, and most recently, in its 2008 Judgment on jurisdiction in the Croatian
Genocide case, the Court found on the one hand that Serbia ought to be considered
one of the successor states to the SFRY emerging from the dissolution of that state,
rather than the sole continuing state maintaining the personality of the former
SFRY.23 It may be noted that by the time the Judgment was rendered, both the
applicant and the respondent state had taken the same position on the matter and
the FRY had been admitted to the United Nations as a new state in 2001. On the
other hand, in both the Bosnian Genocide and Croatian Genocide, Serbia was
considered to be identical with the FRY/Serbia and Montenegro24 and thus
remained a respondent, while Montenegro, having separated from Serbia and
Montenegro in 2006, was considered by the Court as ‘a new State admitted as
such to the United Nations’. As such it was held not to continue the international
legal personality of Serbia and Montenegro, nor was it possible for it to acquire the
status of a respondent in the case by virtue of state succession.25
On the whole, what comes out of the jurisprudence on the crucial distinction
between identity versus succession is that the Court’s approach was not based on
objective facts, such as the size of the remaining territory or that of its population,
but rather on the question of whether and to what extent a possible claim of
identity was accepted by the international community at large and, in particular, by
the United Nations. The view of the Court would appear, moreover, to have been
informed by the view of the specific parties to disputes pending before the Court.
3. Treaty succession in the jurisprudence of the ICJ
While identity and continuity lead to a clear result (namely the continued applica-
tion of the treaty for the continuator state), the legal regime governing instances of
state succession is controversial. While not a common feature of its jurisprudence,
the Court has had to confront questions of succession in a number of cases, and
21 Legality of the Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections) [2004]
ICJ Rep 279, para 79.

and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43.
Serbia) (Preliminary Objections) [2008] ICJ Rep 412.

24 Bosnian Genocide (Merits) (n 22) para 77 and Croatian Genocide (Preliminary Objections) (n 23)
para 29.
25 Croatian Genocide (Preliminary Objections) (n 23) para 33.
with increasing frequency. Its decisions, at least since 1978, have to be seen against
the background of the VCSST, whose (in some respects controversial) approach the
Court might have very well confirmed or rejected. Yet, on balance, and with the
exception of the specific problem of localized treaties,26 the Court seems to have
avoided taking a principled stance.
3.1 General questions

On several occasions, the Court in fact either deliberately left open the question of
succession to specific treaties or was not called upon to decide the matter for other
reasons. As a consequence, a number of proceedings that might have raised
questions of succession yielded no authoritative answer.
Thus, in the Temple of Preah Vihear case,27 Cambodia claimed that it had
succeeded to a French-Siamese Treaty on Friendship and Commerce of 1937,28
which in turn had made reference to the 1928 General Act.29 Thailand, for its part,
rejected any such possibility,30 relying on a statement by the UN Legal Counsel31
which in 1947 had taken the position that, in his view, ‘ . . . it has been clear that no
succession occurs in regard to rights and duties of the old State which arise from
political treaties such as treaties . . . of pacific settlement’. Here, the Court left the
issue of a possible succession to the 1928 General Act open.32
In 1973, in Trial of Pakistani Prisoners of War,33 Pakistan similarly claimed
that the rights and obligations arising under the 1928 General Act for India
had devolved upon Pakistan by virtue of the 1947 Indian Independence (Inter-
national Arrangements) Order and the devolution agreements contained
therein,34 despite the fact that Pakistan had never submitted a declaration of
succession.35 India, not surprisingly, countered that treaties such as the General
Act providing for the peaceful settlement of disputes were either ipso facto excluded
26 See 3.4.
27 Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections, Judgment) [1961] ICJ
Rep 17.
28 LNTS, vol. 201, S 113.
29 General Act of Arbitration (Pacific Settlement of International Disputes) Geneva, 26 September
1928. As to the wording of the relevant treaty clause, see ICJ Pleadings, Temple of Preah Vihear, vol. I,
140 ff; see in that regard JG Merrills, ‘The International Court of Justice and the General Act of 1928’
(1980) 39 Cambridge Law Journal 137, 140 ff.
30 Merrills (n 29) 145 ff.
31 Cf O Schachter, ‘The Development of International Law through the Legal Opinions of the
United Nations Secretariat’ (1948) 25 BYIL 91, 106.

32 Temple of Preah Vihear (n 27) 35.
33 Trial of Pakistani Prisoners of War (Pakistan v India) (Order) [1973] ICJ Rep 347. See K Oellers-
Frahm, ‘Trial of Pakistani Prisoners of War Case’ in R Bernhardt (ed), Max Planck Encyclopedia of
Public International Law, vol II (Oxford: OUP, 2002) 280, and specifically with regard to treaty
succession concerning the General Act, M Nawaz, ‘Has the ICJ Jurisdiction in the POWs Case?’
[1973] 13 Indian Journal of International Law 251, 259–61. See further Merrills (n 29) 141 ff.
34 See, as to the relevance of such devolution agreements, ICJ Pleadings, Trial of Pakistani Prisoners
of War, 80 ff, as well as Zimmermann (n 5) 666 ff; see also ICJ Pleadings, Trial of Pakistani Prisoners of
War, 51, 52 ff, and Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3, 16.
35 As to further issues of state succession arising during the case see Nawaz (n 33) 260–61.
from succession, or, at the very least, required a specific declaration of succession.36
Again, the Court did not have to deal with the matter, given that Pakistan
discontinued the case in December 1973.
In 1999, in the case concerning Legality of the Use of Force brought by the FRY
against the Netherlands, the FRY relied, inter alia, on Article 4 of the 1931 Treaty
of Judicial Settlement, Arbitration and Conciliation between the Netherlands and
the Kingdom of Yugoslavia as a jurisdictional basis. The Netherlands took the
position that the said treaty was no longer in force. It relied on the fact that it was
not a party to the 1978 VCSST, which enshrines the principle of universal
succession to treaties, and, moreover, on the fact that no mutual agreement had
been reached between the Netherlands and the FRY on the continued validity of
the 1931 Treaty. Once again, the Court was left in a position where it was not
required to rule on the question of treaty succession. It did not need to address the
issue during the provisional measures37 phase since this basis of jurisdiction was
invoked only during the second round of oral argument, something the Court
considered to seriously jeopardize the principle of procedural fairness and the
principle of sound administration of justice.38 Nor did it address the issue in its
2004 Judgment on jurisdiction as it found that the applicant state lacked access to
the Court, thereby rendering the secondary question of whether the 1931 Treaty
was a basis for the Court’s jurisdiction moot.39
3.2 Universal treaty succession as customary law?

Questions of succession have not always simply ‘disappeared’ during proceedings.
In fact, the Court has on several occasions heard argument on what may be
considered the most controversial question within the law of state succession to
treaties, namely the claim that—outside the colonial context—successor states
should generally be bound by treaties entered into by their predecessor state. As
is well known, this ‘universal succession’ thesis is put forward in Article 34 of the
VCSST, which provides:
When a part or parts of the territory of a State separate to form one or more States, whether
or not the predecessor State continues to exist . . . any treaty in force at the date of the
succession of States in respect of the entire territory of the predecessor State continues in
force in respect of each successor State so formed.
Yet even now, some thirty-five years later, it remains unclear whether this provision
codified a pre-existing norm of customary international law,40 or whether it
36 Cf Statement of the Government of India in Continuance of its Statement of 28 May 1973
and in Answer to Pakistan’s Letter of 25 May 1973, ICJ Pleadings, Trial of Pakistani Prisoners of
War, 139, 144–48.
37 Legality of Use of Force (Yugoslavia v Netherlands) [1999] ICJ Rep 542, para 43.
38 Use of Force (Yugoslavia v Netherlands) (n 37) para 44.
39 Legality of Use of Force (Serbia and Montenegro v Netherlands) (Preliminary Objections) [2004]
ICJ Rep 1011, paras 114–25.

40 Zimmermann (n 5) 138–39, 166–73 with further references.
constituted a progressive development of international law.41 What is more, if the
rule represented progressive development in 1978, it must be asked whether it has
since ripened into a customary rule, notwithstanding the limited number of
ratifications of the Convention.42
This highly contested issue has been argued by parties to disputes before the
Court on various occasions. In the Gabčíkovo-Nagymaros case,43 Hungary claimed
that there was no rule of succession which could operate in the absence of consent
and argued that the ‘concept of automatic succession’ as contained in Article 34 of
the VCSST had never been accepted by states as a statement of general inter-
national law.44 Slovakia, for its part, while acknowledging that there had been no
agreement on succession to the relevant treaty concluded between Czechoslovakia
(its predecessor state) and Hungary, relied on the rule as contained in Article 34,
which it claimed applied in the case of dissolution and was supported by state
practice.45 The Court did not find it necessary to enter into a discussion as to
whether or not Article 34 reflected customary international law,46 instead basing its
finding exclusively on the concept of localized treaties.47
During the various cases involving the dissolution of the former Yugoslavia, the
parties on a number of occasions discussed whether Article 34 of the VCSST had by
then acquired the status of customary international law, but the Court did not
conclusively settle the matter. In the proceedings leading to the 1996 Judgment on
jurisdiction in Bosnian Genocide,48 the Court found it unnecessary to decide
whether or not the principle of ‘automatic succession’ applied across the board to
various kinds of treaties or even whether it applied as regards certain types of
international treaties or conventions.49 In the 2008 oral hearings on the merits in
the Bosnian Genocide case, the issue resurfaced again.50 The Court, however, on the
basis of the res judicata of the 1996 Judgment, found it was not required to address
the matter.51
Finally, in the jurisdictional phase of the Croatian Genocide case, the ‘automatic
succession’ thesis was once again argued. As will be discussed more fully below, the
Court considered a 1992 declaration and a note emanating from the FRY as
constituting, in the circumstances, a notification of succession52 and, as a conse-
quence, observed that
41 Zimmermann (n 5) 217–18. 42 Zimmermann (n 5) 300 ff, 369 ff.

43 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7.
47 Gabčíkovo-Nagymaros (n 43) para 123; for further discussion of the latter issues see 3.4.
48 See on the one hand ICJ Pleadings, Bosnian Genocide (Preliminary Objections), CR 96/6,
29 April 1996, 8 ff (E Suy), 96/7, 32 ff (R Ètinski) pleading for the FRY, and on the other, CR
96/9, 20 ff (B Stern) pleading the matter for Bosnia and Herzegovina.
49 Bosnian Genocide (Preliminary Objections) (n 20) para 23.
50 See eg ICJ Pleadings, Bosnian Genocide (Merits), CR 2006/13, 9 March 2006 (A Zimmermann)
51 ff.
51 But see inter alia Separate Opinion of Judge Tomka, Bosnian Genocide (Merits) (n 22) 328 ff.
52 See 3.5.
the need does not arise for the Court further to address the arguments put to it by the Parties
concerning the rules of international law governing State succession to treaties including the
question of ipso jure succession to some multilateral treaties.53
One last instance where the issue of automatic succession could have become
relevant was the previously mentioned case of Georgia v Russia, which was brought
in response to alleged violations of CERD. Georgia’s predecessor state, the USSR,
had ratified CERD. This might have enabled Georgia to argue in favour of
automatic succession (which could also have helped to make a case for an extended
application ratione temporis of the treaty54); yet since it had acceded to CERD after
gaining independence, rather than submitting a declaration of notification with
either a declaratory or constitutive effect, it did not even raise the matter.
On the whole, it seems that the Court’s jurisprudence on the matter of auto-
matic treaty succession is as inconclusive as state practice itself. It remains to be seen
whether the issue might come up again in the future and whether the Court will
seize the chance to tackle it. Accordingly, at least so far, the Court’s jurisprudence
does not shed light on what remains one of the most controversial questions within
the regime of treaty succession.
3.3 Automatic succession to human rights treaties?

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

54 See 3.5.
55 See eg M Kamminga, ‘State Succession in Respect of Human Rights Treaties’ (1996) 7 EJIL 469.
56 See notably Human Rights Committee, General Comment 26 (61): Continuity of Obligations,
reproduced in (1995) 34 ILM 839.

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

resulted in Georgia arguing neither automatic treaty succession generally, nor
automatic succession to human rights treaties in particular.
In general, and just as with the automatic succession thesis more generally, the
Court’s jurisprudence does not support a particular approach to the contested
question of automatic succession to human rights treaties.
3.4 Automatic succession to localized treaties

If few rules on treaty succession are carved in stone, Article 12 of the VCSST and
the underlying principle of automatic succession to localized treaties is among the
remarkable exceptions.63 Notwithstanding the many controversies relating to treaty
succession, it has traditionally been agreed that treaty regimes regulating the use of
territory, for example by placing certain restrictions on its use, ‘run with the land’
and thus are not affected by state succession.64 Against this background, it comes as
no surprise that the Court, in its 1997 Judgment in Gabčíkovo-Nagymaros, con-
firmed the customary law character of Article 12 of the VCSST—a view already
taken by the ILC when it drafted the provision.65 Moreover, and again in line with
the ILC’s position, the ICJ found that ‘treaties concerning water rights or naviga-
tion on rivers are commonly regarded as candidates for inclusion in the category of
territorial treaties’.66 Accordingly the Court concluded that a 1977 treaty entered
into by Czechoslovakia and Hungary and relating to the construction of the
disputed Gabčíkovo-Nagymaros project had become automatically binding upon
451 ff.
64 The principle is given effect in paras 1 and 2 of Art 12 of the VCSST, which provide:
1. A succession of States does not as such affect:

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

Slovakia on 1 January 1993 by virtue of state succession after the dissolution of
Czechoslovakia.67
3.5 Treaty succession by way of a notification of succession

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

of decolonization
With regard to the Genocide Convention, Bosnia, as one of the successor states of
the former Yugoslavia, submitted a notification of succession to the Secretary-
General of the United Nations indicating its will to become a contracting party to
the Genocide Convention by virtue of succession.70 In the Bosnian Genocide case,
the respondent state, the FRY, claimed that the possibility of becoming a contract-
ing party to a given treaty by way of a notification of succession was limited to
‘newly independent states’.71 Yet, in line with almost uniform state practice—
particularly that relating to the dissolution of the USSR, the SFRY and
Czechoslovakia—the Court found, both in its order on provisional measures72
67 ILC, Commentary on its Draft Articles on Succession (n 65) 33, para 26.
68 Defined in Art 2(1)(g) VCSST.
69 Zimmermann (n 5) 146 ff, 225 ff.
71 ICJ Pleadings, Bosnian Genocide (Preliminary Objections), CR 96/7, 29 April 1996 (Etinski)
35 ff.
72 Bosnian Genocide (Provisional Measures) (n 15) para 25.
and in its 1996 Judgment on jurisdiction, that ‘Bosnia and Herzegovina could
become a party to the Convention through the mechanism of State succession’,73 ie
by virtue of its notification of succession. It ought to be noted, however, that given
the Court’s reluctance to take a position on the issue of automatic succession, it did
not address the effect of such notifications of succession; in other words, it left open
the question whether in the circumstances of the case Bosnia’s declaration was
declaratory (because Bosnia had automatically seceeded to the Convention), or
whether it was of a constitutive character (because succession was not automatic).
While the Court’s approach was in line with international practice, it clarified a
matter not conclusively settled by the VCSST: in accepting the possibility of
notifications of succession by all successor states (and not just newly independent
states), the Court confirmed that such declarations are yet another way of becoming
a contracting party to a given treaty previously entered into by the respective
predecessor state—a regular mode of becoming bound by its terms.
3.5.2 Temporal effects of notifications of succession

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

74 As to the criteria for determining the date of succession of states see Zimmermann (n 5) 778 ff.
75 PK Menon, ‘Succession of States in Respect of State Property with Particular Reference to
the 1983 Vienna Convention’ (1986) 64 Revue de droit international, de sciences diplomatiques et
politiques 1, 32.
76 For some critical considerations in this regard see the statement made by the United States during
the work of the ILC leading to the adoption of the ILC Draft for the 1978 Convention, USA, ILC Ybk
1974 II/1, 56.
77 See A/CONF.80/16/Add.2.
In depositary practice, notifications of succession had been considered to have
retroactive effect.78 Against that background, in Bosnian Genocide, Bosnia claimed
that its notification of succession meant that it had become a party to the Genocide
Convention at the moment of its independence. The respondent state in turn
denied any such effect. Having initially left the matter open,79 the Court, in its
1996 Judgment, held that the Genocide Convention had been applicable ‘since the
beginning of the conflict’,80 and that Bosnia’s succession—unlike that of a state
ratifying or acceding to the Genocide Convention pursuant to its Article XIII—was
effective immediately.81
The impact of this decision could be felt in Croatian Genocide,82 in which
Croatia’s status as a contracting party to the Genocide Convention, during all
relevant times, remained unchallenged. Croatia had submitted a notification of
succession as of 12 October 1992 but the Convention had already come into
existence with regard to Croatia by 8 October 1991, ie more than a year earlier. It is
telling that while Croatia claimed to have automatically succeeded to the Genocide
Convention (thus circumventing the issue of a possible retroactive effect of its
notification of succession), Serbia seems to have accepted the possibility of retro-
active succession, at least by means of the submission of a notification of succession.
This is probably due to the fact that the Court had already settled the matter in the
Bosnian Genocide case and there was only a slim chance, if any, that the issue would
be reopened. It is therefore not surprising that the Court saw no need either to
further address the issue of the effect ratione temporis of such declarations of
succession or to further clarify the matter.
3.5.3 Form of notifications of succession

Arguably, the Court’s most relevant clarification of the regime of treaty succession
concerns the form of notifications. As noted above, the VCSST adopts a fairly strict
approach, requiring a specific declaration in writing, signed by a state representative
and transmitted to the depositary. The VCSST codified pre-existing state practice
and its approach has largely been confirmed by subsequent practice, in particular in
the wake of succession events after 1990/91, ie relating to the dissolution of the
78 For recent practice see United Nations, Summary of Practice of the Secretary-General as Depositary
of Multilateral Treaties (New York: United Nations, 1994), 87; La pratique de la suisse dépositaire de
traités internationaux multilateraux en matière de succession d’états, CAHDI (93) 14, para 4, where it is
stated: ‘l’expression du consentement à être lié par le traité rétroagit à la date d’indépendance de l’Etat
successeur’, and La pratique de la suisse dépositaire de traités internationaux multilateraux en matière de
succession d’états, CAHDI (94) 8,2: ‘puisqu’il s’agit d’une succession, celle-ci devrait normalement ne
pas prendre effet à la date de la notification, mais retroagir à la date où le nouvel Etat a acquis une
existence internationale.’
81 Bosnian Genocide (Preliminary Objections) (n 20) para 34. Pursuant to Art XIII, para 3, of the
Genocide Convention ‘[a]ny ratification or accession effected subsequent to the Convention’s general
entry into force shall become effective on the ninetieth day following the deposit of the instrument of
ratification or accession’.
82 Croatian Genocide (Preliminary Objections) (n 23) 412.
USSR, Yugoslavia, and Czechoslovakia.83 It is also worth noting that depositaries of

multilateral treaties require treaty-specific declarations of succession which relate to
one or more enumerated treaties before they consider a successor state to have
seceeded.84 By contrast, general declarations of succession are not understood to
bring about treaty succession—much less devolution agreements.85
It is against this background that the Court’s decision at the jurisdictional stage
of the Croatian Genocide case has to be seen. The Court had to deal with Croatia’s
claim that a declaration adopted on 27 April 1992 during a joint meeting of the (at
that time de jure still existing) Assembly of the SFRY, the National Assembly of the
Republic of Serbia and the Assembly of the Republic of Montenegro amounted to a
notification of succession by which the FRY had become a party to the Genocide
Convention. The declaration had not identified any treaty in particular, and it had
been circulated as an official Note of the Yugoslav mission to the United Nations to
the UN Secretary-General, with the request that he distribute it as an official
document of the Organization (rather than by way of a depositary note).
Notwithstanding these formal defects, the Court considered that the FRY, as a
successor state to the SFRY, had accepted the declaration as having been made on
its behalf and that it had endorsed and accepted the ensuing commitments.
Contrary to the above-mentioned long-standing practice of depositaries, the
Court took the position that even general declarations may, at least under certain
specific circumstances, amount to a notification of succession.86 While the Court
based its finding on the wording of Article 2(g) of the VCSST, which refers to any
such notification ‘however phrased or named’ (thus not requiring any specific form
of the respective notification), it did not address the requirement contained in
Article 22, which, in line with the principle underlying Article 7 of the Vienna
Convention on the Law of Treaties, restricts the circle of persons whose conduct
can bind a state (and which thus relates to the author of the respective notification).
In particular, it is worth noting that the Court did not consider the declaration (and
the ensuing note) to constitute a binding unilateral declaration, nor did it base its
result on concepts such as estoppel (which would have been difficult anyhow, given
the obvious lack of reliance by Croatia on the declaration).
While the Court was careful to stress the ‘particular context of the case’87 and to
note that the declaration under consideration, while not constituting a notification
of succession as such, could be ‘considered as having had the effect of a notification
of succession to treaties’,88 said judgment marks a shift away from the restrictive
approach adopted in the 1978 VCSST and increases legal uncertainty. Indeed, one
wonders why (following Article 8 of the 1978 VCSST and consistent state prac-
tice89) a devolution agreement, in which a successor state formally agrees that the
treaty obligations of its predecessor state will devolve upon it, does not bring about
83 Zimmermann (n 5) 372 ff, 303 ff, 335 ff. 84 Zimmermann (n 5) 752 ff.
85 Zimmermann (n 5) 155 ff, 763 ff.
89 Zimmermann (n 5) 155 ff.
treaty succession, while a unilateral and generalized declaration like the ‘Serbian’
one of 27 April 1992 can have precisely that effect. The ad hoc approach adopted in
Croatian Genocide thus runs the risk of calling into question even those few rules of
treaty succession which, at least so far, have been considered firmly to reflect
customary international law on the matter.
4. Impact of the Court’s jurisprudence

on the law of treaty succession
Currently, there are very few clear rules when it comes to the succession of states
with regard to treaties. As mentioned, thirty-five years after its adoption, the 1978
VCSST has been able to attract only twenty-two states parties. Accordingly, there is
a continuing need for unequivocal rules of customary law on the matter. In that
regard the Court could have shown more willingness to address the issues head-on
and settle some of the above-mentioned outstanding issues. Instead, the Court has
(i) circumvented the relevant questions, (ii) limited itself to confirming only those
few rules whose customary nature was undoubted, and, perhaps most dangerously,
(iii) adapted certain rules to the specific circumstances of a given case in an attempt
to reach a certain result without addressing some fundamental issues of the law of
state succession, and, in so doing, run the risk of undermining even further the
normativity of the already somewhat shaky rules of state succession to treaties.
Yet, this reluctance of the Court might just be evidence of the uncertainty of the
law of state succession with regard to treaties (and other matters) which, even today,
suffers from a lack of uniform state practice. One cannot but notice, however, that
other actors, such as human rights treaty bodies, have taken a much bolder
approach to certain issues; however, they have done so without being able decisively
to influence state practice. One might wonder whether the Court would have had
more success than the treaty bodies in further developing or confirming inter-
national law on the matter.
In any event, given the lack of both uniformity of state practice and general rules
developed in the Court’s jurisprudence, the states concerned have to a large degree
retained the ability to create ad hoc solutions when it comes to state succession with
regard to treaties, without being afraid that any such solutions might eventually be
quashed by the Court.
PART III
THE LAW OF CLAIMS
5
The International Court of Justice
and the Law of State Responsibility
James Crawford, AC SC
1. Introduction
Hersch Lauterpacht wrote The Development of International Law by the Permanent

Court of International Justice in 1934; in 1958 he produced a second edition,
bringing it up to date in relation to the International Court of Justice (ICJ).1
Though the books are now dated, they are well written and still worth reading. In
particular, the first offers a valuable perspective on the mind-set of international
lawyers at the time when the process of the Permanent Court of International
Justice (PCIJ) was still being formed. The international court system is often
thought of as having been established for an extended period of time; but the
fate of the PCIJ was unknown in 1923. By 1934, Lauterpacht had provided a
canonical account of the judicial method in relation to the PCIJ, demonstrating the
great capacity of the man. The following discussion will take a synoptic view of the
relationship between the World Court, the phrase used to cover both the PCIJ and
the ICJ, and the law of state responsibility, before turning to more recent events.
2. Contribution of the PCIJ to the law of state responsibility
The PCIJ and the ICJ—the most continuous of the various interwar bodies that
were transmitted, and transmuted, in 1945—share a number of common features.
Both courts started their careers with an important adversarial state responsibility
case: Wimbledon2 was the first for the PCIJ; Corfu Channel 3 for the ICJ. It is
significant that in both of these cases the Court awarded damages, which was not
1 H Lauterpacht, The Development of International Law by the International Court (London: Stevens &
Sons, 1958) and The Development of International Law by the Permanent Court of International Justice
(London/New York/Toronto: Longmans Green and Co., 1934).
2 SS ‘Wimbledon’ (UK, France, Italy, Japan, Poland [Intervening] v Germany), (1923) PCIJ Ser A
No 1.
3 Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4.
repeated subsequently by either for many years.4 This suggests that, although there
have been many state responsibility cases, damages are not necessarily the best
measure of responsibility.
The PCIJ case of Wimbledon was also significant in that its bench was composed
of some of the important figures in the formation of the law of state responsibility,
such as Max Huber and, in particular, Dionisio Anzilotti. The Italian influence on
state responsibility remained strong in the post-1945 period, with Special Rappor-
teur (later Judge) Roberto Ago continuing the Italian tradition, only broken in
1996 by the decision of the Italian Government not to re-nominate Gaetano
Arangio-Ruiz to the International Law Commission (ILC).
During his tenure at the PCIJ, Anzilotti played a central role in the development
of the Court’s conceptions of fault and attribution, which he referred to as
‘imputability’. The terminology has changed, but the ideas remain the same,
finding expression in a series of important decisions of the Court. Chorzów Factory5
is the one that has survived to be cited with great frequency, often by people who
would appear never to have read it. The proposition for which Chorzów Factory is
cited—ie that ‘it is a principle of international law, and even a general conception of
law, that any breach of an engagement involves an obligation to make repar-
ation’6—is a simplification of a very complex dispute involving lands in German
Upper Silesia, which had become Polish as a result of the Treaty of Versailles.
The ICJ, when it started, had a significant tradition of cases involving state
responsibility to build on. The principles that (i) the breach of an international
obligation invokes the responsibility of the state; (ii) the state cannot rely on its
municipal law as grounds for failure to comply with its international obligations;
and (iii) for every international wrong there was an injured state (entailing the idea
that responsibility was essentially bilateral) and many more had been laid down by
the PCIJ7 and were essentially adopted by the ICJ.
What the PCIJ did not engage in to any great degree, largely because of lack of
opportunity, was the elaboration of the multilateral foundations of responsibility.
When the PCIJ had opportunities to be innovative it seized them for the most part,
at least in the first phase of the 1920s. For example, in Jurisdiction of the Courts of
Danzig,8 the PCIJ said that although international law was radically distinct
from domestic law and states were the principal subjects of international law,
4 Ahmadou Sadio Diallo (Guinea v DRC) (Compensation) Judgment of 19 June 2012 (<http://
www.icj-cij.org/docket/files/103/17044.pdf> (accessed 17 May 2013)). The Court has reserved quan-

tum in Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168. For cases
where the Court avoided awarding damages despite findings of responsibility see eg Fisheries Jurisdic-
tion (Germany v Iceland) (Merits) [1974] ICJ Rep 175; Land and Maritime Boundary between
Cameroon v Nigeria [2002] ICJ Rep 303; Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997]
ICJ Rep 7; Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43.
5 Factory at Chorzów (Merits) (1928) PCIJ Ser A No 17.
6 Factory at Chorzów (Merits) (n 5) 29.
7 See eg Phosphates in Morocco (1938) PCIJ Ser A/B No 74, 28; SS ‘Wimbledon’ (n 2) 30; Factory at
Chorzów (Jurisdiction), PCIJ Series A (1927), No 9, 21; and Factory at Chorzów (Merits) (n 5) 29.
8 Jurisdiction of the Courts of Danzig (1928) PCIJ Ser B No 15, 17–24.
State Responsibility 73
nonetheless, states could, if they wanted to, confer rights on individuals—a

surprising proposition considering the strictly dualist thinking of Anzilotti and
others, which subsequently matured and inspired the modern human rights move-
ment.9
3. The ICJ’s first responsibility cases and the initiation

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

10 Corfu Channel (n 3).
11 See Corfu Channel (UK v Albania) (Expert Opinion: Order) [1948] ICJ Rep 124.
12 Corfu Channel (UK v Albania), Pleadings, Oral Arguments, Documents, Volume III, 173–8.
Rep 174.
14 Reparation for Injuries (n 13) 179–86.
15 Reparation for Injuries (n 13) 184, 186.
16 GA Res 799 (VIII) of 7 December 1953 requested that the ILC undertake, as soon as it considered
it advisable, the codification of the principles of international law governing state responsibility.
ILC and the ICJ in this field. This is fascinating because the tasks of these two bodies
are completely different. The function of the ILC is to draft texts that can be adopted
as treaties, thus becoming part of international law. But at the same time, the ILC
is tasked with codifying international law and bestowing authority on its work to
some extent independent of the happenstance of treaty ratification.17 It has been
relatively successful in accomplishing this, certainly in the first phase of its operations
(working on the law of the sea, the law of treaties, and the law of diplomatic and
consular relations), and to a lesser extent in the second phase (working on water-
courses, state immunity, state responsibility, among other subjects).
The function of the Court, on the other hand, is to decide cases. The Court’s
advisory opinions have been important in terms of establishing the institutional law
of the UN as an international organization,18 but with certain rather limited
exceptions they have not contributed much to the law of state responsibility.
Instead, the contentious cases have informed this area of international law, the
main exception being the Wall Opinion.19
What the Court needs when dealing with cases involving state responsibility is a
measure of flexibility. Difficult inter-state cases cannot be decided according to a
formula; the specific circumstances of the case need to be examined. The Court is
very responsive to the factual context of cases. This feature of the Court’s jurispru-
dence is evident in, for example, Corfu Channel, where the Court held that
although the United Kingdom had violated international law by conducting a
forcible mine-sweeping operation in Albanian waters, in the circumstances the
declaration of illegality alone was sufficient reparation—a clearly discretionary and
flexible finding.20
The ILC in codifying the law of state responsibility had to lay down general
rules, which to some extent involved inventing them. The rules of state responsi-
bility have been derived from cases, from practice, and from often unarticulated
instantiations of general legal ideas. This is demonstrated by Article 48 of the ILC
Articles on State Responsibility which deals with the invocation of responsibility by
a state other than an injured state.21 The rules in Article 48 were not part of
international law before they were formulated in that article. Of course, the article
was drafted from existing material, but that material did not predetermine the
question.22 The difficulty in distinguishing between codification and progressive
development is plainly visible from this example.
17 Art 1, para 1 of the Statute of the ILC (adopted in GA Res 174 (II) of 21 November 1947)
provides that the ‘Commission shall have for its object the promotion of the progressive development
of international law and its codification’.
18 See further Sloan’s and Hernández’s contribution to this volume at Chapter 10.
Opinion) [2004] ICJ Rep 136, paras 140–60.

20 Corfu Channel (n 3) 36.
21 ILC Articles on Responsibility of States for Internationally Wrongful Acts, ILC Ybk 2001/II(2),
26, 126.
22 On Art 48 see J Crawford, ‘Responsibilities for Breaches of Communitarian Norms: An
Appraisal of Article 48 of the ILC Articles on Responsibility of States for Wrongful Acts’ in
U Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno
Simma (Oxford: OUP, 2011) 224.
The ILC in its work on responsibility under Francisco García-Amador (Cuba)

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

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

26 See eg Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections) [2007] ICJ Rep 582.
27 For details see Parlett’s contribution to this volume at Chapter 6.
28 This was done already in the introduction to Ago’s First Report: ILC Ybk 1969/II, 127.
responsibility are, in effect, explanations of the way in which states relate to each
other in the matter of legal obligations. He called this the distinction between
primary and secondary rules,29 borrowing, perhaps unfortunately, the language of
Herbert Hart.30 Primary rules are the obligations that states have: not to commit
genocide, not to invade other states, not to commit or condone torture, etc.
Secondary rules are the rules that determine when there has been a breach of
primary rules and with what consequences.
The corollary of Ago’s insight was that the law of state responsibility was not
confined to any given area of substantive international law. It was not confined, in
particular, to the law relating to injuries to aliens, which is how García-Amador had
treated it. The law of state responsibility was general in scope, covering everything
from breaches of the UN Charter to a violation of a bilateral treaty of friendly
relations. This comprehensive scope naturally gave rise to enormous difficulty in
codification as every drafted rule had to apply both to minor breaches of a bilateral
treaty and to the invasion of Belgium or, using a more recent example, the invasion
of Iraq.
Ago was only responsible for Part One of the ILC Articles, which dealt with
the question of whether there had been a breach of an obligation. He did not
work on what later became Parts Two, Three, and Four of the Articles, which
were drafted by his successors. But the articles drafted by Ago had significant
influence as they were extremely well crafted with enormous attention to detail
by Ago and his staff. The Draft Articles introduced concepts such as the defence
of necessity, which previously had an uncertain status in international law.
A reflection of Ago’s particular influence is that he managed to stay on as
Special Rapporteur even after he was elected to the ICJ in 1979 and had ceased
to be a member of the ILC. It is highly unlikely that such an arrangement
would be permitted now; moreover, the current caseload of the Court would
not allow it.
5. The introduction of the concept of obligations owed

to the international community as a whole
Ago was replaced at the ILC by Willem Riphagen, then by another Italian, Arangio-
Ruiz,31 and then in 1997 by the author, who was given the task of completing the
second reading of the Draft Articles in four years.32 During the first reading the
Court had made significant contributions to the law of state responsibility in a
29 R Ago, Second Report on State Responsibility by Ago (‘The Origin of International Responsi-
bility’), ILC Ybk 1970/II, 179.

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

series of important cases: Hostages,33 Nicaragua,34 and Gabčíkovo-Nagymaros.35 But

the most important thing the Court did was to say in Barcelona Traction in 1970
that certain obligations were owed to the international community as a whole.36
Barcelona Traction was a diplomatic protection case about a company which had
been incorporated in Canada but whose stock was primarily owned by Belgian
nationals, having debilitating restrictions placed on its ability to function by the
Government of Spain under Franco. The litigation lasted for ten years, with the
Court eventually holding that Belgium could not represent the Barcelona Traction
Company as it was a Canadian company. This was a very conservative view in the
narrow field of diplomatic protection.
The Court’s finding, in the most obiter of dicta, that there could be obligations to
the international community as a whole, in effect constituted an apology for its
earlier decision in the second South West Africa cases,37 in which it held that
Ethiopia and Liberia had no standing to bring a claim against South Africa in
respect of a breach of its duties as a mandatory arising from its imposition of
apartheid on South West Africa. The approach taken in Barcelona Traction was a
manifestation of Ago’s view of the comprehensive scope of the law of state responsi-
bility. It covers violations of obligations in the public interest in the fields of
environmental law, human rights, and decolonization, just as much as it covers
breaches of obligations in bilateral fields such as diplomatic relations. The echoes of
that decision carried through the next thirty years or so.
A problematic aspect of Barcelona Traction was the phrase erga omnes. Another
Latin term, jus cogens, had already been incorporated into the Vienna Convention
on the Law of Treaties (VCLT) the year before.38 But France was extremely
unhappy with Article 53 and it voted against the VCLT because of that article.39
This was no doubt why the Court avoided the phrase in 1970 (and for long after).
Nevertheless, Barcelona Traction marks the emergence of the important idea that
states can have obligations that are owed not individually to other states—uti
singuli, singularly—but in some sense collectively. The international system is
slowly learning to deal with this idea, but there are views that the ILC has gone
too far in its approach to obligations owed to the international community as a
whole, in particular with regard to Article 48 of the ILC Articles.40
33 United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3.
ICJ Rep 14.
35 Gabčíkovo-Nagymaros Project (n 4).
36 Barcelona Traction (n 25) para 33.
37 South West Africa (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJ Rep 6.
38 22 May 1969, 1155 UNTS 331, Arts 53, 64.
39 The French delegate complained that draft Art 50 (current Art 53) was imprecise as to the scope
of jus cogens, how the norms were formed, and what their effects would be. The French delegation
believed that the article might put the success of the convention and the progress of international law in
jeopardy: Official Records of the UN Conference on the Law of Treaties, Second Session, Summary
records of the plenary meetings and of the meetings of the Committee of the Whole (1970) 94–5,
203–4, 207.
40 ILC Articles (n 21) ILC Ybk 2001/II(2), 26, 126.
Ago responded with the notion of international crimes of states. In my view, here
he made a fundamental mistake because introducing the notion of crimes did not
really establish a distinct concept. With jus cogens in 1969 and erga omnes in 1970,
international crimes in 197641 introduced a third concept and one that had no
support in state practice. There had never been a case in which a state had been held
criminally liable. The nearest had been Germany after World War I, which resulted
in very careful measures being taken after 1945 not to criminalize Germany. For
example, the Nuremberg Charter did not treat the Reich as a criminal entity.
The idea of criminal organizations in the Nuremberg Charter related only to the
likes of the SS, and even then criminal sanctions were not imposed on those
organizations as such.42 There was no practice in the modern period of imposing
on states any form of judicial penalty, punitive damages, or anything akin to them.
Thus, international crimes became yet another idea that congested the ILC
Articles. The notion attracted enormous attention, in particular from the develop-
ing world, which saw it as a way of criticizing the United States and the Soviet
Union for their various egregious breaches of international law.43 The idea of
international crimes penetrated the international law discourse;44 it took the ILC
four years of debate to exclude it from the Articles.45 The Court did not contribute
much to the debate, after having introduced the term erga omnes in 1970, simply
because it did not get cases in which to address the issue; it endorsed the ILC’s final
position in Bosnian Genocide.46
But there is no reason to think that the Court has a particularly narrow view of
standing in the public interest. There are many cases in which states think they are
pursuing their own rights where in fact they are pursuing a public interest which is
manifest in their participation in the treaty concerned. The Wimbledon and Memel
cases are prominent examples from the PCIJ’s era.47 Today, the same is true in
environmental matters. For example, in Southern Bluefin Tuna 48 Australia and
New Zealand espoused a claim against Japan in relation to the conservation and
management of Southern Bluefin Tuna, a concern not limited to those two states.
41 ILC Ybk 1976/II(2), 95–122, esp paras 6–34.

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

48 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (2000) 39 ILM 1359 (AT
UNCnLOS).
The way we regulate the world must disaggregate some of the interests concerned
from the rights of individual states. This was reflected in the ILC Articles by
drawing an important distinction between the obligations of states, dealt with in
Parts One and Two, and the right to invoke responsibility dealt with in Part Three.
The Court did not have much opportunity to address this issue. Its main excursion
into the terrain was the East Timor case,49 where it refused to decide the case on the
grounds that a necessary party was not present. The bilateralism of jurisdiction
prevailed over the multilateralism of the underlying rights. The Court has consist-
ently confirmed that the status of the substantive norm, even if it is jus cogens or erga
omnes, does not affect jurisdiction, which is determined bilaterally.50 International
law is like a layer cake, and the layer of the jurisdictional arrangements, which go
back to 1923 and have not changed at the level of the World Court,51 remains there
with the multilateral perceptions put on top; the layers do not mix. This was
affirmed in Germany v Italy, where the Court held that there is no conflict between
a rule of jus cogens and the rule of customary law which requires one state to accord
immunity to another. The two sets of rules address different matters. The rules of
state immunity are procedural in character and are confined to determining
whether or not the courts of one state may exercise jurisdiction in respect of
another state. They do not bear upon the question whether or not the conduct
in respect of which proceedings are brought was lawful or unlawful.52
6. The Court’s activism in Gabčíkovo-Nagymaros
The Court played an important role in consolidating some of the ideas of the ILC
avant la lettre. One such example was the Gabčíkovo-Nagymaros case.53 Hungary
had, on a combination of environmental and economic grounds, refused to
continue the building of a major hydroelectric project that had been planned in
the 1960s, incorporated in treaty arrangements in the 1970s, and rather sporadic-
ally built thereafter. By 1989, the upstream portion of the project was well
advanced. But Hungary had never been particularly fond of the project, and
Hungarian public opinion was distinctly hostile. In the new freedom of 1989,
when heretical thoughts were permitted and communist plans could be abandoned,
the Hungarians, having successfully abandoned the bilateral treaty which prevented
the East Germans from driving their Trabants through Hungary in order to get to
West Germany,54 thought they could also discard their commitment to the
49 East Timor (Portugal v Australia) [1995] ICJ Rep 90.

50 Eg Arrest Warrant of 11 April 2000 (DRC v Belgium) [2002] ICJ Rep 3, 23–30, paras 56–71;
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) Judgment of 3 February
2012 (<http://www.icj-cij.org/docket/files/143/16883.pdf> (accessed on 17 May 2013)) paras 92–7.
51 ICJ jurisdiction is regulated in Art 36 of the ICJ Statute, which is essentially the same as the PCIJ
jurisdictional clause: Statute of the PCIJ, 6 LNTS 379, 390, 16 December 1920, Art 36.
52 Germany v Italy (n 50) para 93.
54 Hungary-Democratic Republic of Germany, Treaty of Friendship, Co-operation and Mutual
Assistance, 617 UNTS 3, 18 May 1967. By a note verbale of 8 September 1989, Hungary suspended
hydroelectric dam. Hungary declared that it was not going to comply with the
Barrage Treaty and then Slovakia built its own version of the scheme further
upstream on territory on the right bank of the Danube which it had acquired in
1947. The standoff between the downstream version of the plan, which had not
been built, and the upstream version, which had been built in a different place, was
referred to the ICJ by special agreement and it gave rise to one of the most
important of the modern cases on the treatment of rivers. The outcome of the
case was, in effect, the Court’s ratification of the status quo, subject to modification
by negotiations, which have still not succeeded in achieving their result fifteen
years later.
The Court is unlikely to provide parties in such circumstances with all the
requested relief; it certainly did not do so in this case. The Court said that the
downstream dam did not have to be built. The upstream dam was a replacement for
the project, but unlawful because, in effect, it involved the theft of the Danube.55
Nevertheless, Hungary was in breach of its obligations in refusing to build the
project and therefore owed money to Slovakia to re-acquire joint control of the
project, which had to be brought into line with modern environmental consider-
ations. In short, this was a subtle overall settlement of the dispute, subject only to
the unfortunate reference back to the parties.
Two points should be emphasized with respect to this case. First of all, there was
discussion of the defence of necessity, contained in Draft Article 33 of the Articles
on first reading, now contained in Article 25 in the second reading.56 Under Ago’s
guidance, the ILC had said that where a state is in an overwhelming situation of
necessity, it may be entitled to disregard its international obligations, subject to
certain important qualifications (based on conceptions of proportionality, the
fact that the situation of necessity is not caused by the state, or not contributed
to by the state, the fact that it is not causing serious harm to other states, etc).57
Even expressed in those terms, it gave rise to considerable doubts.58 Everyone
remembered Chancellor Bethmann-Hollweg in the Reichstag in 1914 saying it was
necessary to invade Belgium for the survival of the German state. The analogy
with that sort of ‘necessity’ is detrimental to the concept. It was feared that
international law could be dispensed with simply by invoking necessity, and there
have also been modern examples of this. At the time when the Court dealt with the
the application of Arts 6 and 8 of the Treaty, in which the two states had agreed to a visa waiver for
their respective nationals, but agreed to refuse travellers permission to leave for third countries.
55 My summary of the facts, no doubt, belies my involvement in the matter as counsel for Hungary.
56 Art 25 states: ‘Necessity may not be invoked by a State as a ground for precluding the wrongful-
ness of an act not in conformity with an international obligation of that State unless the act: (a) is the
only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) does
not seriously impair an essential interest of the State or States towards which the obligation exists, or of
the international community as a whole.’ The second paragraph adds: ‘In any case, necessity may not
be invoked by a State as a ground for precluding wrongfulness if: (a) the international obligation in
question excludes the possibility of invoking necessity; or (b) the State has contributed to the situation
of necessity.’
57 R Ago, Eighth Report on State Responsibility, ILC Ybk 1980/II(1), 14–51.
58 For discussion in the ILC, see ILC Ybk 1980/I, 160–83.
argument of necessity, it was very much an open question whether it would be

accepted.
The Court had the option of stating that the parties argued the case on the
assumption that Article 33 (now Article 25) represented international law, and
accordingly it could have decided the case hypothetically on the basis of the
arguments of the parties. Instead, the Court endorsed the defence of necessity
and then, rightly, dismissed Hungary’s invocation of it. Just like an argument of
fundamental change of circumstances, the defence of necessity is a last resort when
trying to avoid the implementation of a treaty, and it almost always fails. It is an
ultimate pressure valve.
The second situation of relevance to this discussion is in the field of counter-
measures. The Court addressed countermeasures, which had not at that time been
dealt with extensively by the ILC, and made some important observations about
these practices. For example, the Court said that countermeasures (which used to
be termed reprisals taken in response to an internationally unlawful act) had to be
proportionate, but they also had to be temporary in character:59 in the Court’s
words they must be reversible.60 The Court had gone on location to see the project.
Observing the barrage built by Slovakia upstream, it was clear that it was not
reversible. Accordingly, the countermeasures defence failed, and the result was that
Variant C (the project actually built by Slovakia) was unlawful. This was an
extremely important decision and it was taken up by the ILC in its formulation
of the rules on countermeasures. The Court’s language was quoted in the eventual
ILC articles on countermeasures.61 This illustrates how the Court and the ILC can
and do mutually endorse aspects of each other’s work.
7. Reception and influence of the ILC Articles
The second reading of the Articles was concluded in 2001. The ILC decided on
balance that there should not be an immediate attempt to convert them into a
convention; rather they should be allowed to stand as Articles to be taken up by
courts and tribunals as deemed appropriate.62 That has happened to an unantici-
pated degree: there are more than 150 cases in which courts and tribunals at the
international level have cited and approved the Articles. That there is almost no case
in which a court has cited and disapproved of the Articles demonstrates their
impact. The Articles have encoded the way in which we think about responsibility.
However, the ILC’s work was not all plain sailing and on some issues the Court
has been reticent. On other issues, the Court has gone further than expected,
demonstrating a range of approaches, both negative and positive from the perspec-
tive of the Articles. An issue on which the Court has been relatively reserved is that
59 Gabčíkovo-Nagymaros (n 4) 56. 60 Gabčíkovo-Nagymaros (n 4) 57.

61 See commentary to Art 22 of the ILC Articles on State Responsibility: ILC Ybk 2001/II(2),
75–6.
62 ILC Report 2001, ILC Ybk 2001/II(2), 24–5, paras 61–7.
of assurances and guarantees of non-repetition. According to Article 30, a state in
breach of international law has an obligation to stop the breach and to offer
assurances and guarantees of non-repetition—that is, to offer promises not to do
it again.
The Court in LaGrand 63 and later cases has tended to accept that the category
exists, but has not ordered or ensured the provision of such assurances or guaran-
tees. Increasingly, the Court has done everything to avoid not requiring assurances.
This is understandable from the Court’s point of view as it does not have a
continuing role of supervision over the performance of judgments. The Court
can revise judgments and interpret them, but it is not an enforcer of its own
judgments, as was seen recently in Avena Interpretation.64 The Court does not want
to issue well-meaning statements over which it would have no control.
But assurances and guarantees play an important role in diplomatic relations in
the context of breach, which is one of the reasons why it is often puzzling that the
ICJ does not award damages even in cases where it might have done so, as in
Cameroon v Nigeria,65 or in the Fisheries cases between Germany, the United
Kingdom and Iceland.66 The reason is that the Court is a discrete settlement
mechanism, and it is keen to show that the main point in its judgments is given
effect. In Cameroon v Nigeria, the main point of the Judgment was the determin-
ation of the boundary, and adding an award of damages to the determination of the
boundary could have been harmful. The Court needs remedial flexibility. The ILC
Articles, on the other hand, deal with a range of situations relating to assurances. In
diplomatic relations, for example in cases of intrusions into diplomatic premises,
assurances of non-repetition are vital.
On the other hand, there are cases in which the Court has gone, some would say,
overboard to adopt the Articles. This was a process that took some time to happen,
and it can be seen to some extent in the Wall Opinion,67 where one of the
questions, once the Court had determined that the wall was unlawful, was the
consequences of that unlawfulness. The Court essentially quoted the language of
Article 41 of the ILC Articles without actually attributing it to the Articles. This
was significant because that article is the residue of the old concept of state crimes.
Article 41 says that where there has been a serious breach of a fundamental rule of
international law, a rule of jus cogens, there are obligations on other states as well as
63 LaGrand (Germany v USA) [2001] ICJ Rep 466, paras 123–5. The Court held: ‘If a State, in
proceedings before this Court, repeatedly refers to substantial activities which it is carrying out in order
to achieve compliance with certain obligations under a treaty, then this expresses a commitment to
follow through with the efforts in this regard’ (para 124). The commitment expressed would qualify as
a general assurance of non-repetition.
64 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and
Other Mexican Nationals (Mexico v USA) [2009] ICJ Rep 3. The Court found that there was no dispute
between the parties and declined the request of Mexico for the Court to order the US to provide
guarantees of non-repetition.
65 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial
Guinea Intervening) [2002] ICJ Rep 303.

66 Fisheries Jurisdiction (UK v Iceland) (Merits) [1974] ICJ Rep 3; Fisheries Jurisdiction (Germany v
Iceland) (Merits) (n 4).

67 Wall (n 19).
on the state which is responsible for the breach—the obligation of non-recognition,

going back to the Stimson doctrine,68 and the obligation not to assist that state in
maintaining the unlawful situation.
Just as the concept of state crimes was highly controversial in the debate on the
second reading, so too was the residue of this concept—the consequences of serious
breaches of fundamental norms. There are those who regard international responsi-
bility as functioning between two states on a level playing field (formally level, that
is), and who consider alternative conceptions of responsibility that bring in third
states as contrary to that basic idea. But responsibility can also operate as between
states and non-states69 and is not necessarily horizontal in the way in which the
equality of states is presented as horizontal. Responsibility can involve third parties,
up to and including the international community as a whole. There is debate about
this proposition, because the international community as a whole is read by the
‘horizontalists’ as being limited to a community of states. This view is reflected in
the definition of jus cogens in Article 53 of the VCLT: ‘a norm accepted and
recognized by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character’.70
But the international community itself is no longer limited to states. The
European Union, for example, which is not a state, is undoubtedly part of the
international community. Palestine, which was granted ‘non-member observer
State status’ in the UN on 29 November 201271 and is recognized by around
130 states, has had some, indeterminate status since 1988. The International
Committee of the Red Cross, an international person, a party to treaties, is very
much part of the international system, but is of course not a state. Other examples,
more or less contentious, can be added. The system of international responsibility is
now diversified and the Articles reflect that. One of the ways in which that diversity
is reflected is through the idea that serious breaches of jus cogens norms give rise to
special consequences for third states. The opposite conclusion would imply that we
are still in an atomic international system. If third states are not obliged to do
anything when faced with apartheid then we are still in a Hobbesian world. This is a
question of fundamental significance.
And it is of fundamental significance that some states are now advocating a
diplomatic conference on the ILC Articles in order to remove Article 48 and the
other articles that embody this idea. The problem is still there, having gone through
several forms, and the Court has made it clear on which side of the line it stands in
68 The Stimson doctrine is a policy of the US federal government of non-recognition of inter-
national territorial changes that were executed by force, an application of the principle of ex injuria jus
non oritur. See eg Lord Arnold D McNair, ‘The Stimson Doctrine of Non-Recognition’ (1933) 14
BYIL 65; H Lauterpacht, Recognition in International Law (Cambridge: CUP, 1947); B Cheng,
General Principles of Law as Applied by International Courts and Tribunals (London: Stevens & Sons
Ltd, 1953, repr 1987 by Grotius Publications, and in 1994 and 2006 by CUP) 187.
69 See eg R Ago, Second Report on State Responsibility, ILC Ybk 1970/II, 182–5.
70 22 May 1969, 1155 UNTS 331, Art 53 (emphasis added).
71 GA Res 67/19 of 29 November 2012.
relation to this. When the ILC finished in 2001, it was thought that Article 41,
the residue of crimes, would be the article that would be the least likely to be
applied. Yet three years later, in the Wall Opinion, the Court applied it—though,
as noted, it did so without explicitly referring to it. And in 2007, in the Bosnian
Genocide case,72 the Court endorsed no fewer than seven of the ILC Articles,
including Article 16 dealing with complicity, ie aid and assistance in committing
an international wrongful act. The text of the article is formulated slightly more
generously than the commentary. The commentary restricts the article in the same
way as the United States Court of Appeals did in the Talisman case.73 In this case
the Sudanese plaintiffs alleged that Talisman Energy, a Canadian corporation, had
aided and abetted the Government of Sudan in advancing human rights abuses that
facilitated the development of Sudanese oil concessions by Talisman affiliates. The
Court determined that Talisman could not be held liable for aiding and abetting
unless the plaintiffs could prove that Talisman had acted with the purpose of
assisting the Sudanese Government’s violations of customary international law.
The Court concluded that there were insufficient facts or circumstances suggesting
that Talisman had acted with such a purpose.74
The question is whether complicity in a breach of international law arises
because of knowledge of the occurrence of the breach and inaction, or whether
there needs to be actual intent to assist. Article 16 is equivocal on that point:
A State which aids or assists another State in the commission of an internationally wrongful
act by the latter is internationally responsible for doing so if: (a) that State does so with
knowledge of the circumstances of the internationally wrongful act; and (b) the act would be
internationally wrongful if committed by that State.
The commentary is clear, but not completely aligned with the text of the article on
this important question, stating that ‘the aid or assistance must be given with a view
to facilitating the commission of the wrongful act, and must actually do so’.75
The Court in Bosnian Genocide 76 endorsed Article 16. The Court went even
further and also backed the ILC’s strategy on crimes. The issue arose because the
case dealt with the question whether Serbia (then Serbia and Montenegro) could
itself commit genocide when the Genocide Convention merely stated that the
obligation was to prevent and punish. The Court inferred from the object and
purpose of the Convention an obligation on states not to commit genocide
themselves. In doing so, the ICJ made it clear that there was no criminal responsi-
bility of states in international law, thereby endorsing the basic strategy of the
second reading of the Articles.77
72 Bosnian Genocide (n 4).

73 Presbyterian Church of Sudan et al v Talisman Energy, Inc 582 F 3d 244 (US Ct of Apps, 2nd
Cir, 2009).
74 Talisman (n 73) III.
75 See commentary to Art 16 of the ILC Articles on State Responsibility: ILC Ybk 2001/II(2), 66,
para 5.
76 Bosnian Genocide (n 4) para 420. 77 Bosnian Genocide (n 4) paras 167–70.
The Court has also been supportive of the ILC Articles in the field of attribution.
Articles 4–11 deal with attribution in an essentially exhaustive way. The Court has
applied a number of those articles, Articles 4 and 8 in particular, as declaratory of
general international law. This has given rise to debate about the notion of control
in Article 8—to what extent is a state responsible for the acts of private parties on
the grounds of direction and control?78 This question arose, for example, in relation
to US responsibility for the acts of the contras in Nicaragua79 and Serbia’s responsi-
bility for the acts of the Bosnian Serb militia in the Tadić case, decided by the
International Criminal Tribunal for the former Yugoslavia (ICTY).80 In Nicaragua
the Court said that general control or influence was not enough—there had to be
control or direction of the particular unlawful act for responsibility to arise. That
imposes requirements of proof, which are often difficult to fulfil. In Tadić, the
ICTY needlessly said that the Court in Nicaragua was wrong. The question in
Tadić was not whether the state was responsible under international law for the
unlawful conduct, but whether Duško Tadić was individually criminally respon-
sible for war crimes. That depended on whether the general regime of the Geneva
Conventions applied under Article 3 of the ICTY Statute, and whether the conflict
was an internal or international armed conflict. The ‘overall control’ test was used
to make this determination; it had nothing to do with state responsibility. Yet the
Tribunal held that the Nicaragua case was too stringent and that generic control
was sufficient to establish responsibility. Although the Court in Bosnian Genocide 81
paid a great deal of respect to the decisions of the Tribunal on questions of fact, it
held that on this particular question the Tribunal was wrong. There needs to be a
specific connection between the wrongful act and the direction or control of the
state under Article 8.82 This is also highlighted in the commentary to Article 8.83
8. Conclusion
Where does the future lie? Approximately one-third of the Court’s cases involve
responsibility. Another third involve boundaries, land or maritime delimitation, and
there is a third which cannot be classified—cases like Aerial Spraying 84 and Former
Yugoslav Republic of Macedonia v Greece 85 which may involve rivers, transboundary
78 The text of Art 8, entitled ‘Conduct directed or controlled by a State’, reads as follows: ‘The
conduct of a person or group of persons shall be considered an act of a State under international law if
the person or group of persons is in fact acting on the instructions of, or under the direction or control
of, that State in carrying out the conduct.’
79 Nicaragua (n 34).
80 Prosecutor v Dusko Tadić ‘Judgment’ (Appeal Chamber) (15 July 1999) IT-94-1-A (ICTY).
81 Bosnian Genocide (n 4) paras 211–14.
83 ILC Ybk 2001/II(2), 47–8.
84 Aerial Herbicide Spraying (Ecuador v Colombia) (Pending) ICJ Press Release 2008/5 of 1 April
2008 (<http://www.icj-cij.org/docket/files/138/14470.pdf> (accessed 17 May 2013)).

85 Application of the Interim Accord of 13 September 1995 (Former Yugoslav Republic of Macedonia v
Greece) Judgment of 5 December 2011 (http://www.icj-cij.org/docket/files/142/16827.pdf> (accessed

17 May 2013)).
pollution, etc. Many cases that fall within the latter group, nonetheless, do involve
responsibility. For example, Aerial Spraying is a responsibility case as well as an
environmental one.
Responsibility is one of the issues the Court engages with the most, and its role in
developing the law of state responsibility has been substantial. The symbiotic
relationship between the ILC and the Court has also been significant in achieving
a situation where there is now a presumption that the ILC Articles reflect inter-
national law, unless it can be shown that they do not—a status which took the
Vienna Convention on the Law of Treaties thirty years to reach.
6
Diplomatic Protection and the International
Court of Justice
Kate Parlett*
1. Introduction
While claims brought before the International Court of Justice (ICJ, or ‘the Court’)
on the basis of diplomatic protection may now appear to be rare, in a number of
cases the Court has had occasion to pronounce on several issues of principle relating
to diplomatic protection claims. In particular, the enduring influence of the Court’s
seminal decision in Barcelona Traction1 on the development of international law on
diplomatic protection is indubitable. Bearing in mind its enduring influence, this
chapter will consider the development of the law of diplomatic protection by the
ICJ by reference to four general topics: the scope of the doctrine (and in particular
the Vattelian fiction which gives rise to the rule that the state has a right, but not an
obligation, to pursue diplomatic protection claims); the rule on nationality of claims;
claims to vindicate injuries suffered by shareholders; and the broader question of
interaction between the law of investment claims and the law on diplomatic protec-
tion. This discussion is preceded by an introduction to the origins of the doctrine of
diplomatic protection and a brief analysis of the jurisprudence of the ICJ’s predeces-
sor, the Permanent Court of International Justice (PCIJ, or ‘the Permanent Court’),
whose decisions laid the foundations of its ‘modern’ application.
2. Origins of the doctrine of diplomatic protection
The basic premise of diplomatic protection is traced to Vattel, who wrote:

Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen;
and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if
* The author would like to thank the editors for comments on an earlier draft and Diego Mejia-
Lemos for research assistance. The usual caveats apply.
1 Barcelona Traction, Light, and Power Company, Limited (Belgium v Spain) (Second Phase)
(Merits) [1970] ICJ Rep 3. As to the influence of the decision generally, see C Tams and
A Tzanakopoulos, ‘Barcelona Traction at 40: The ICJ as an Agent of Legal Development’ (2011) 23
Leiden JIL 781.
possible, oblige him to make full reparation; since otherwise the citizen would not obtain the
great end of the civil association, which is safety.2
Thus Vattel expressed diplomatic protection as an obligation of the sending state to
protect its citizens when they are injured abroad.3 He began with the proposition
that a grant of entrance to territory by a sovereign implies a condition that aliens
will be subject to the local laws: this is consistent with the general proposition that
individuals were governed by municipal rather than international law. In that
context he referred to disputes between foreigners, or between foreigners and
citizens, as being within the remit of the local courts, and to a requirement that
the foreigner first have recourse to all peaceful means of obtaining reparation for the
injury.4 This was a corollary of a nation’s territorial jurisdiction, which dictated that
foreign states could only interfere in limited circumstances: where there was a denial
of justice; where the decision was clearly and palpably unjust; where the proper
procedure had not been observed; or where foreigners had been the subject of
discrimination.5 Consistent with Vattel’s conception of the law of nations as the
law of sovereigns, he referred in this context to ‘the rights and obligations of
sovereigns’ in respect of the protection of citizens, implying that the relevant rights
were state rights, not individual rights.6
Vattel’s proposition that an injury to an individual is an injury to his state of
nationality became basic to the practice of diplomatic protection. It has been
suggested that Vattel’s thesis derived either from feudal law under which the
lord’s protection was given in return for the allegiance of his subjects, or as an
extension of ‘social contract’ theories, popular at the time to legitimize the state,
which linked social peace with recognition of sovereign authority;7 it might also
have been inspired by the earlier practice of letters of reprisal. The fiction of
diplomatic protection as suggested by Vattel was concerned with the treatment of
individuals but referred only to inter-state rights and inter-state relations; the
interests of individuals could only be protected through an inter-state process.
3. The inter-war period: the contours of the doctrine

as shaped by the PCIJ
The contours of the doctrine of diplomatic protection were developed in the inter-
war period. In the absence of general codification projects, judicial and arbitral
2 E de Vattel, The Law of Nations: or, Principles of the Law of Nature Applied to the Conduct and
Affairs and Nations and Sovereigns (1758) (B Kapossy and R Whatmore (eds), Indianapolis: Liberty
Fund, 2008), Book II, Chapter VI, } 71, 298.
3 Vattel (n 2) } 71, 298. Vattel’s formulation joined the view that it was the duty of the sending state
to protect its citizens injured abroad to the view that the sending state was thereby vindicating its
own rights.
4 Vattel (n 2) } 84, 304; see also } 338, 458.
5 Vattel (n 2) } 84, 304. 6 Vattel (n 2) } 71, 298.
7 See M Bennouna, Preliminary Report on Diplomatic Protection (1998) UN Doc A/CN.4/484, 3,
para 7.
Diplomatic Protection 89
decisions—notably those of the Permanent Court, but also those of the many
mixed arbitral tribunals and commissions operating during the period—exercised a
defining influence on the development of the law and remain important to this day.
This is true both for questions of principle and for specific applications of the
doctrine in particular settings.
3.1 The ‘Mavrommatis principle’

The classical formulation of the doctrine of diplomatic protection is to be found in
the decision of the Permanent Court in 1924 in the Mavrommatis case. The Court
recognized Greece as a proper claimant against Great Britain in respect of a claim
that Mavrommatis, a Greek subject, had been treated by the British authorities in
Palestine in a manner incompatible with certain international obligations they were
bound to observe. Thus the dispute fell within the jurisdiction of the Court which,
pursuant to Article 34 of the Court’s Statute, was limited to disputes between states
or members of the League. The Court said:
It is true that the dispute was at first between a private person and a State — i.e., between
M. Mavrommatis and Great Britain. Subsequently the Greek Government took up the case.
The dispute then entered upon a new phase; it entered the domain of international law, and
became a dispute between two States. Henceforward therefore it is a dispute which may or
may not fall under the jurisdiction of the Permanent Court of International Justice.8
The Court stated further, in point of principle:
It is an elementary principle of international law that a State is entitled to protect its subjects,
when injured by acts contrary to international law committed by another State, from which
they have been unable to obtain satisfaction through ordinary channels. By taking up the
case of one of its subjects and by resorting to diplomatic protection or international judicial
proceedings on his behalf, a State is in reality asserting its own rights—its right to ensure, in
the person of its subjects, respect for the rules of international law.9
The basic requirement of nationality of claims followed from this principle: a state
could only protect a person (natural or legal) from breaches of international law if
that person was a national of that state at the relevant times.
The Permanent Court elaborated the basic principle in later cases, particularly in
Serbian Loans.10 There the questions put to the Court by special agreement related
to the form of payment of certain loans by the Serb-Croat-Slovene Government to
French bondholders. The French bondholders had requested the intervention of
their Government to resolve the dispute as to whether the loans ought to be paid in
gold rather than French francs. In considering whether the matter fell within its
8 Mavrommatis Palestine Concessions, Judgment No 2 (1924) PCIJ Ser A No 2.

9 Mavrommatis (n 8).
10 Serbian Loans (1929) PCIJ Ser A No 20. In other decisions the Permanent Court indirectly
affirmed the doctrine of diplomatic protection. For example, in 1933 the Court affirmed that a dispute
between two states was distinct from a dispute between an injured individual and a respondent state
(Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány
University v Czechoslovakia) (1933) PCIJ Ser A/B No 61).
jurisdiction, the Court examined the question whether the dispute was a dispute
between two states, or merely one with the French bondholders. The Court noted
that the dispute related to the obligations between the borrowing state and private
persons, relations which were ‘within the domain of municipal law’.11 However, a
second controversy elevated the claim to the plane of international law: when the
holders of the Serbian loans appealed to the French Government and it intervened
on their behalf, the Court considered that a distinct difference of opinion arose
between the two states which ‘though fundamentally identical with the controversy
already existing between the Serb-Croat-Slovene Government and its creditors, is
distinct therefrom’.12 Thus the Court held the claim admissible.13
3.2 Questions of nationality

While the requirement of nationality was a central aspect of Mavrommatis, its
application in specific situations gave rise to specific questions. The question of the
relevant time for determining the nationality of a claim arose in the Panevezys-
Saldutikis Railway case.14 Estonia had brought a claim against Lithuania regarding
the latter’s refusal to recognize rights claimed by an Estonian company in respect of
the Panevezys-Saldutikis Railway, which had been seized.15 Lithuania raised a
preliminary objection on the basis that Estonia had not observed the rule of
international law that ‘a claim must be a national claim not only at the time of
its presentation but also at the time when the injury was suffered’.16 The Court
held that Estonia ‘must prove that at the time when the injury occurred which is
alleged to involve the international responsibility of Lithuania the company
suffering the injury possessed Estonian nationality’.17 In the view of the Court,
this was a corollary of the character of diplomatic protection, by which a state was
‘in reality asserting its own right, the right to ensure in the person of its nationals
11 Serbian Loans (n 10) 18. 12 Serbian Loans (n 10) 18.

13 Serbian Loans (n 10) 17–18. Two judges dissented on this point. Judge M Pessôa stated that the
Court had no jurisdiction because there was no distinction between the state-state difference of opinion
and the dispute between the Serb-Croat-Slovene Government and the French bondholders. Judge
M Novacovitch suggested that the Court had no jurisdiction because it was not a ‘public international
law controversy’. He stated that although a dispute between states may originate in a controversy
between a state and an individual, all disputes previously considered by the Court concerned the
application of treaties between states, and the protection of the interests of individuals came into
question only as a consequence of the application of a treaty. There was no contention that the Serb-
Croat-Slovene Government had violated an international treaty or violated a rule of international law,
and hence the Court had no jurisdiction.
14 Panevezys-Saldutikis Railway (Estonia v Latvia) (1939) PCIJ Ser A/B No 76.
15 Panevezys-Saldutikis Railway (n 14). Although this claim related to a company rather than a
natural person, it is cited here for its treatment of the confines of diplomatic protection, which is
equally applicable to claims relating to natural persons.
16 Panevezys-Saldutikis Railway (n 14) 6.
17 Panevezys-Saldutikis Railway (n 14) 16–17. However, in the circumstances the Court held that it
could not admit the objection since the grounds on which Lithuania disputed Estonia’s right to take up
the case could not be separated from those on which Lithuania disputed the company’s alleged right to
ownership of the railway (17–18). It upheld Lithuania’s second objection, that Estonia had failed to
exhaust local remedies, and therefore the claim was dismissed at the preliminary objections phase (22).
respect for the rules of international law’.18 There was no dispute that nationality
was possessed at the time of filing of the claim in this case, and the Court appears to
have accepted that nationality was also required at the time of presentation of the
claim.19 However, the matter was not conclusively settled and in the absence of any
conclusive decision by the Permanent Court (or indeed any other form of legal
clarification) it was addressed by arbitral tribunals and commissions of the inter-war
period, whose decisions display a considerable degree of heterogeneity. For
example, the German-American Mixed Claims Commission required that nation-
ality be established on the date of loss or injury, and on the date when the treaty
establishing the Commission came into force—ie it required nationality to be
established at the time of the injury and at the time the obligations of the respond-
ent state became absolute.20 In contrast, the British-Mexican Commission required
that the claimant state establish continuity of nationality until the date of presenta-
tion of the claim,21 and the French-Mexican Commission required continuity of
nationality until the date of the award.22
3.3 The bearer of the right

Consistently with the Vattelian approach as rationalized in Mavrommatis, claims
of diplomatic protection were understood as inter-state disputes. Importantly,
the PCIJ’s jurisprudence and inter-war practice took this approach one step
further by holding that even though diplomatic protection claims involved injury
sustained by the state’s nationals, rights vindicated by way of diplomatic protec-
tion were those of the state itself. In its indemnity judgment in Chorzów Factory
(1928), the Permanent Court indirectly affirmed this approach.23 It held that in a
dispute between states concerning damage suffered by a national, the applicable
rules governing reparation were the rules of international law in force between the
two states, not the law governing relations between the state and the injured
individual:
Rights or interests of an individual the violation of which rights causes damage are always in
a different plane to rights belonging to a state, which rights may also be infringed by the
18 Panevezys-Saldutikis Railway (n 14) 16.

19 This appears also to have been accepted by Judge van Eysinga in dissent: Panevezys-Saldutikis
Railway (n 14) 34–5.
20 See Administrative Decision No V (Germany/US) (1924) 7 RIAA 119, 150.
21 FW Flack, on behalf of the estate of the Late DL Flack (UK) v Mexico (1929) 5 RIAA 61, 62. The
Rules of Procedure of the Mexican Commissions suggested that the date of filing was relevant by
specifying that the nationality of the relevant individuals from the time of injury to the date of filing
was to be included in the memorial: see AH Feller, The Mexican Claims Commissions 1923–1934:
A Study in the Law and Procedure of International Tribunals (New York: Macmillan, 1935) 232.
22 Maria Guadalupe A Vve Markassuza, Sentence No 38 (unpublished), French-Mexican Claims
Commission, cited in Feller (n 21) 97. The British-Mexican Commission made a similar decision,
which is to be contrasted with its approach in the Flack case, described above: see Minnie Stevens
Eschauzier (UK) v Mexico (1931) 5 RIAA 207.
23 Factory at Chorzów (Germany v Poland) (Merits) (1928) PCIJ Ser A No 17, 26–8.
same act. The damage suffered by the individual is never therefore identical in kind with that
which will be suffered by a State; it can only afford a convenient scale for the calculation of
the reparation due to the State.24
The Court subsequently affirmed, in Peter Pázmány, that a diplomatic protection
claim brought on the basis of injury to a national was a distinct dispute from any
dispute between the injured national and the respondent state.25
The PCIJ’s approach was confirmed in treaty practice referring particular claims
to arbitration,26 as well as by international claims tribunals and commissions.
Several of these claims processes operated on the basis of diplomatic protection,
and affirmed the underlying fiction: that the claim was brought on an inter-state
basis to vindicate the state’s injury suffered in respect of its national. For example,
the Mixed Claims Commissions established to deal with claims of US nationals
concerning damage to property, rights, and interests in German territory; loss or
damage to persons, property, rights, and interests as a consequence of the war; and
claims for debts of German nationals or the German Government,27 expressly held
that the proper claimant was the US:
The United States is claimant. Though conducted in behalf of their respective citizens,
governments are the real parties to international arbitrations. All claims, therefore, presented
to this Commission shall be asserted and controlled by the United States as claimant, either
on its own behalf or on behalf of one or more of its nationals. If in the decisions, opinions,
and proceedings of the Commission American nationals are referred to as claimants it will be
understood that this is for the purpose of convenient designation and that the Government
of the United States is the actual claimant.28
The same approach was taken by the US-Mexican General Claims Commission,
which held that the right to espouse an international claim was a right held by the
state of nationality, in dismissing an argument based on the ‘clean hands’ principle.
In Chattin, Mexico argued that because the relevant US national was a ‘fugitive
from justice’, the US Government had lost the right to espouse his claim. The
Commission held that unlawful conduct of a national did not cause a government
to ‘los[e] its right to espouse its subject’s claim in its discretion’.29 The same
Commission confirmed that an alien could not ‘deprive the Government of his
24 Factory at Chorzów (n 23) 28.

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

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

In summary, during the inter-war period the fundamental contours of the doctrine
of diplomatic protection were consolidated, in particular by the Permanent Court,
which made significant contributions to the development of the law. In particular,
the Vattelian fiction of injury to the state was affirmed. The Permanent Court also
affirmed that continuity of nationality was required until the filing of the claim,
although it left open the issue of whether nationality was required thereafter, and
commissions and tribunals took different approaches to the requirement of con-
tinuity after presentation of the claim. It was also implied that the discretion to
exercise a right of diplomatic protection inhered in the state, rather than in its
national, although this was not the subject of a clear and concise statement until the
decision of the ICJ in Barcelona Traction.
4. Diplomatic protection in the ICJ
The ICJ has had several opportunities to address the confines of diplomatic
protection. Cases brought by way of diplomatic protection include Nottebohm;31
Interhandel;32 Barcelona Traction;33 Tehran Hostages;34 ELSI;35 three matters con-
cerning the application of the Vienna Convention on Consular Relations: Breard,36
LaGrand,37 and Avena;38 Oil Platforms;39 Arrest Warrant;40 and Diallo.41 While
30 North American Dredging Company of Texas (US) v Mexico (1926) 4 RIAA 26, 29 and 34 (para
11). On subsequent decisions, see DR Shea, The Calvo Clause: A Problem of Inter-American and
International Law and Diplomacy (Minneapolis: University of Minnesota Press, 1955) 231–57.
31 Nottebohm (Leichenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4.
32 Interhandel (Switzerland v USA) (Preliminary Objections) [1959] ICJ Rep 6.
33 Barcelona Traction (n 1).
34 United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, 5–6 (para 8).
35 Elettronica Sicula SpA (ELSI) (USA v Italy) [1989] ICJ Rep 15.
36 Vienna Convention on Consular Relations (Paraguay v USA) [1998] ICJ Rep 248, para 5.
37 LaGrand (Germany v USA) [2001] ICJ Rep 466, para 10.
38 Avena and Other Mexican Nationals (Mexico v USA) [2004] ICJ Rep 12, para 40. Mexico
brought the case by way, inter alia, of diplomatic protection, but the Court declined to address the
case as such.
39 Separate Opinion of Judge Rigaux, Oil Platforms (Iran v USA) [2003] ICJ Rep 161, para 10.
40 Belgium, in Arrest Warrant of 11 April 2000, took the position that the case was transformed into
one of diplomatic protection after the Foreign Minister of the DRC left office. But the DRC had not
brought the case by way of diplomatic protection and the Court rejected the Belgian position: [2002]
ICJ Rep 3, paras 37–40. Cf, implying that the Court (mistakenly) treated Spain’s case as one brought
by way of diplomatic protection, Dissenting Opinion of Judge Torres Bernárdez, Fisheries Jurisdiction
(Spain v Canada) [1998] ICJ Rep 432, 589, paras 20–2.
41 Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections) [2007] ICJ Rep 582, para 86.
these provided the Court with an opportunity to clarify a number of important
points, the general impression is one of continuity: notwithstanding the increasing
role of the individual in international relations, the ICJ has broadly affirmed the
‘PCIJ acquis’. This continuity is affirmed in large part by the work of the Inter-
national Law Commission (ILC) on the matter, which resulted in the adoption, in
2006, of a set of Draft Articles on Diplomatic Protection42 and which, by and large,
confirm the traditional parameters of the doctrine. As the subsequent discussion
shows, the interaction between the ICJ and the ILC has in many respects clarified
and consolidated the contemporary regime governing diplomatic protection.
4.1 Affirmation of the Mavrommatis formulation

As regards questions of principle, the ICJ affirmed the Mavrommatis formulation of
diplomatic protection in several cases. For example, in the Interhandel case the ICJ
stated that in diplomatic protection claims, the applicant state had ‘adopted the
cause of its national’ whose rights had been violated.43 The same approach
underlies the ILC’s Draft Articles on Diplomatic Protection. It had been encour-
aged by Special Rapporteur Dugard,44 who noted:
[D]iplomatic protection, albeit premised on a fiction, is an accepted institution of customary
international law, and one which continues to serve as a valuable instrument for the
protection of human rights. It provides a potential remedy for the protection of millions
of aliens who have no access to remedies before international bodies and it provides a more
effective remedy to those who have access to the often ineffectual remedies contained in
international human rights instruments.45
Article 1 of the Draft Articles defines diplomatic protection as:
the invocation by a State, through diplomatic action or other means of peaceful settlement,
of the responsibility of another State for an injury caused by an internationally wrongful act
of that State to a natural or legal person that is a national of the former State with a view to
the implementation of such responsibility.46
In 2007, in Diallo (Preliminary Objections), the ICJ acknowledged that this formu-
lation reflected the content of customary international law.47
4.2 Discretion to exercise diplomatic protection

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

45 Dugard, First Report (n 44) 25, para 64, references omitted.
46 ILC Draft Articles (n 42), Art 1.
47 Diallo (Preliminary Objections) (n 41) para 39.
was obliged to exercise its right to diplomatic protection in a particular case was
firmly rejected in Barcelona Traction: in that case the Court emphasized the
discretionary character of the right of diplomatic protection.48 Consistently with
this principle, the ILC concluded that the right of diplomatic protection belongs to
the state, not to the individual. The commentary to Draft Article 2 states:
Article 2 stresses that the right of diplomatic protection belongs to or vests in the State. It
gives recognition to the Vattelian notion that an injury to a national is an indirect injury to
the State . . .
This view is frequently criticized as a fiction difficult to reconcile with the realities
of diplomatic protection, which require continuous nationality for the assertion of a
diplomatic claim, the exhaustion of local remedies by the injured national, and the
assessment of damages suffered to accord with the loss suffered by the individual.
Nevertheless the ‘Mavrommatis principle’ or the ‘Vattelian fiction’, as the notion
that an injury to a national is an injury to the State has come to be known, remains
the cornerstone of diplomatic protection.49
Thus the ILC confirmed that diplomatic protection was a state right rather than
an obligation, consistent with the ICJ’s emphasis in Barcelona Traction on the
discretionary character of diplomatic protection.50 The Commentary to Article 2
also notes that international law imposes no obligation on a state to exercise its right
to diplomatic protection.51 The implication is that individuals hold no inter-
national law right to compel their state of nationality to exercise diplomatic
protection.
However, while affirming the ICJ’s approach, the ILC has sought to move
beyond it by formulating, in Draft Article 19, certain ‘Recommended practices’,
suggesting that a state entitled to exercise diplomatic protection should:
(a) Give due consideration to the possibility of exercising diplomatic protection,
especially where a significant injury has occurred;
(b) Take into account, wherever feasible, the views of injured persons with
regard to resort to diplomatic protection and the reparation to be sought;
and
(c) Transfer to the injured person any compensation obtained for the injury
from the responsible state subject to any reasonable deductions.
The Commentary to Draft Article 19 notes that these reflected ‘practices on the
part of States . . . which have not yet acquired the status of customary rules’, and

49 Barcelona Traction (n 1) paras 78–9. Arguably it follows from the recognition of a distinct state
right that the equitable principle of ‘clean hands’ in respect of conduct of the national is inapplicable.
The Commission included no provision in relation to that principle in the Draft Articles: see J Dugard,
Sixth Report on Diplomatic Protection (2005) UN Doc A/CN.4/546.
51 ILC Draft Articles (n 42), Commentary to Art 1, paras 1–2. It has been held in the UK that
individuals cannot compel their state of nationality to exercise diplomatic protection on their behalf:
Abbasi v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76.
that they were ‘desirable practices . . . that add strength to diplomatic protection as
a means for the protection of human rights and foreign investment’.52 In respect of
(c), it can be noted that any individual right to compensation in respect of a
diplomatic protection claim will ordinarily only arise as a matter of domestic law,
but it might also engage international human rights obligations. In 1994 the
European Court of Human Rights held that an international agreement making
provision for compensation for claims espoused on the basis of diplomatic protec-
tion could give rise to an enforceable right on the part of the injured nationals to
compensation. It held that Article 6 of the European Convention on Human
Rights was engaged where the French Government settled claims of French citizens
against the Moroccan Government relating to the nationalization of assets by a
lump sum agreement incorporated in a treaty, and subsequently by decree estab-
lished a national administrative committee to distribute the proceeds of the
settlement. The right to compensation was held to be a pecuniary right which
was susceptible to determination in accordance with the standards of the European
Convention.53 So at least when the European Convention is applicable, individuals
may have enforceable rights to the proceeds of a diplomatic protection claim
successfully pursued in respect of their injury. Whether the incorporation of this
recommended practice in the ILC Draft Articles leads to further practice in support
of an individual right to the proceeds of such claims (even where the European
Convention does not apply), which may provide evidence of the development of a
generally applicable customary rule, remains to be seen. In any event, it is worth
noting that, while cautiously seeking to restrict the scope of a state’s discretion,
Draft Article 19 operates within the framework of ‘inter-state’ diplomatic protec-
tion formulated by the PCIJ and ICJ.
4.3 Nationality of natural persons: the question of genuine link

Consistent with the Vattelian fiction that an injury to a national of a state
constitutes an injury to the state itself, the basic requirement is that a state can
only assert a right of diplomatic protection in respect of its own nationals. This is
codified in the ILC’s Article 3(1): ‘The State entitled to exercise diplomatic
protection is the State of nationality.’
In determining who is a national, there is a tension between the role of national
and international law, and it is here that the ICJ’s jurisprudence has been of
particular relevance and clarified the approach of its predecessor. The Permanent
Court in Nationality Decrees in Tunis and Morocco implied that it is for each state to
determine for itself who are its nationals. It stated:
The question whether a certain matter is or is not solely within the jurisdiction of a State is
an essentially relative question; it depends upon the development of international relations.
52 ILC Draft Articles (n 42), Commentary to Article 19, para 1.

53 Beaumartin v France (1994) 19 EHRR 485 (ECtHR).
Thus, in the present state of international law, questions of nationality are, in the opinion of
this Court, in principle within the reserved domain.54
However, by stating that nationality was ‘in principle’ within the reserved domain,
the Permanent Court left open the question whether there are limits to a state’s
discretion. There were other indications that a state’s discretion to determine the
question of nationality is not unlimited. Article 1 of the 1930 Hague Convention
on Certain Questions Relating to the Conflict of Nationality Laws stated that ‘it is
for each State to determine under its own law who are its nationals’, but that:
This law shall be recognized by other States in so far as it is consistent with international
conventions, international custom and the principles of law generally recognized with regard
to nationality.55
Against that background, the existence of limits on a state’s conferral of nationality
was affirmed by the ICJ in the Nottebohm case. The Court said:
According to the practice of States, to arbitral and judicial decisions and to the opinion of
writers, nationality is the legal bond having as its basis a social fact of attachment, a genuine
connection of existence, interests and sentiments, together with the existence of reciprocal
rights and duties. It may be said to constitute the juridical expression of the fact that the
individual upon whom it is conferred, either directly by the law or as the result of an act of
the authorities, is in fact more closely connected with the population of the State conferring
nationality than with that of any other State. Conferred by a State, it only entitles that State
to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms
of the individual’s connection which has made him its national.56
Thus, in addition to confirming that the question of nationality was not within the
exclusive domain of states, the ICJ indicated that nationality required a ‘genuine
connection’. This has been the subject of much discussion since, including in the
ILC. Special Rapporteur Dugard attacked the view that a genuine link is required
under customary international law in all cases. He stressed two factors which could
limit Nottebohm to the facts of that case:
First, it seems that the Court was concerned about the manner in which Liechtenstein
conferred nationality upon Nottebohm as, in order to accommodate the urgency of his
application for naturalization, Liechtenstein had waived some of its own rules relating to the
length of residence required . . . This view, which draws some support from the dissenting
opinions, relies heavily on the operation of an inarticulate judicial premise on the part of
the majority and is insufficient to provide a satisfactory basis for limiting the scope of the
Court’s judgment. Nevertheless, it does suggest that the judgment should not too readily
be applied in different situations in which there is no hint of irregularity on the part of the
State of nationality.
Secondly, the Court was clearly concerned about the ‘extremely tenuous’ links between
Nottebohm and Liechtenstein compared with the close ties between Nottebohm and
54 Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4.

55 179 LNTS 89. More recently this was affirmed by the 1997 European Convention on
Nationality, ETS No 166, Art 3.
56 Nottebohm (n 31) 23.
Guatemala over a period of 34 years . . . This explains its repeated assertion that Liechten-
stein was ‘not entitled to extend its protection to Nottebohm vis-à-vis Guatemala’ . . . The
Court did not purport to pronounce on the status of Nottebohm’s Liechtenstein nationality
vis-à-vis all States. It carefully confined its judgment to the right of Liechtenstein to exercise
diplomatic protection on behalf of Nottebohm vis-à-vis Guatemala. It therefore left
unanswered the question whether Liechtenstein would have been able to protect Notte-
bohm against a State with which he had no close connection. This question is probably best
answered in the affirmative as the Court was determined to propound a relative test only, i.e.
that Nottebohm’s close ties with Guatemala trumped the weaker nationality link with
Liechtenstein. In these circumstances the Nottebohm requirement of a ‘genuine link’ should
be confined to the peculiar facts of the case and not seen as a general principle applicable to
all cases of diplomatic protection.57
Article 4 of the ILC’s Draft Articles on Diplomatic Protection gives effect to
Dugard’s approach by recognizing that international law imposes limits on the
grant of nationality, without imposing a positive requirement of a genuine or
effective link. Article 4 provides:
For the purposes of diplomatic protection of natural persons, a State of nationality means a
State whose nationality the individual sought to be protected has acquired by birth, descent,
succession of States, naturalization or in any other manner, not inconsistent with inter-
national law.
The commentary notes that the connecting factors listed in Article 4 ‘are illustrative
and not exhaustive’58 and that they are the connecting factors ‘most frequently used
by States to establish nationality’.59 The commentary also refers to the requirement
of a genuine and effective link as suggested in Nottebohm, but states:
Despite divergent views as to the interpretation of the [Nottebohm] case, the Commission
took the view that there were certain factors that served to limit Nottebohm to the facts of the
case in question, particularly the fact that the ties between Mr. Nottebohm and Liechten-
stein (the Applicant State) were ‘extremely tenuous’ . . . This suggests that the Court did not
intend to expound a general rule applicable to all States but only a relative rule according to
which a State in Liechtenstein’s position was required to show a genuine link between itself
and Mr. Nottebohm in order to permit it to claim on his behalf against Guatemala with
whom he had extremely close ties. Moreover, the Commission was mindful of that fact that
if the genuine link requirement proposed by Nottebohm was strictly applied it would exclude
millions of persons from the benefit of diplomatic protection as in today’s world of
economic globalization and migration there are millions of persons who have drifted away
from their State of nationality and made their lives in States whose nationality they never
acquire or have acquired nationality by birth or descent from States with which they have a
tenuous connection.60
57 Dugard, First Report (n 44) paras 108–10 (references omitted).

58 ILC Draft Articles (n 42), Commentary to Art 4, para 3.
60 ILC Draft Articles (n 42), Commentary to Art 4, para 5. See also R Sloane, ‘Breaking the
Genuine Link: The Contemporary International Legal Regulation of Nationality’ [2009] Harvard ILJ
1, who argues that the Court in fact found Liechtenstein’s application inadmissible based on abuse of
rights, a general principle of international law.
If one accepts that the Court’s decision in Nottebohm concerning the requirement
of a genuine link can be construed as giving rise to a rule of narrow, rather than
broad, application, and that the special circumstances in which it was applied
(where there was a demonstrably closer link with the state other than the claimant
state), the Court’s decision can be viewed as a contribution to the development of
the law on the subject—albeit in a limited context. However, the decision estab-
lished a rule of more general application: that the question of nationality for
international law purposes is not to be determined exclusively within the discretion
of the state. That rule of general application has had an enduring influence and has
now been codified in the ILC’s Draft Articles.
4.4 Diplomatic protection of corporations and shareholders

In relation to diplomatic protection of corporations, two issues have arisen: firstly,
the requirements of nationality to exercise diplomatic protection for a corporation;
and secondly, whether a state may exercise diplomatic protection to protect the
interests of its nationals who are shareholders in a corporation incorporated in
another state.
Diplomatic protection of corporations has been dominated by the seminal
decision of the ICJ in Barcelona Traction. In that case, a claim was brought by
Belgium against Spain, in respect of injury suffered by a company incorporated in
Canada, with 88 per cent of its shares held by Belgian nationals.61 Spain raised an
objection to jurisdiction concerning the right of Belgium to exercise diplomatic
protection on behalf of shareholders in a company incorporated in Canada. The
Court upheld the objection, finding that the right of diplomatic protection in
respect of an injury to a corporation belongs to the state under the laws of which the
corporation is incorporated and in whose territory it has its registered office, and
not to the national state(s) of the shareholders.62 The Court suggested that the state
of nationality of a shareholder might be able to exercise diplomatic protection in
circumstances where either the corporation had ceased to exist in its place of
incorporation, or where the state of incorporation was itself responsible for inflict-
ing injury on the company.63 However, neither of these were the case in Barcelona
Traction, and hence the Court left open whether the state of nationality of the
shareholders would be entitled to bring a claim in such circumstances.64
The Court also indicated that international law ‘attributes the right of diplomatic
protection of a corporate entity to the State under the laws of which it is incorpor-
ated and in whose territory it has its registered office.’65 It noted that no absolute
test of ‘genuine connection’ has found general acceptance, but suggested that there
61 Barcelona Traction (n 1) 3.
62 Barcelona Traction (n 1) paras 70, 88, and 60.
63 Barcelona Traction (n 1) paras 65–8 and 92.
64 For criticism of the Court’s decision in Diallo (Preliminary Objections) (n 41), see the Joint
Dissenting Opinion of Judges Al-Khasawneh and Yusuf, Ahmadou Sadio Diallo (Guinea v DRC)
(Merits), [2010] ICJ Rep 639, at 700 ff. See also the Dissenting Opinion of Judge Bennouna, 728.
was a need for some ‘permanent and close connection’ between the State exercising
diplomatic protection and the corporation.66 Consistently with the Court’s deci-
sion in Barcelona Traction, the ILC Draft Articles do not incorporate a requirement
of a genuine link with the state of incorporation.67 However, Article 9 of the Draft
Articles does incorporate an exception, where the corporation (a) is controlled by
nationals of another state, (b) the corporation has no substantial business activities
in the state of incorporation, and (c) the seat of management and financial control
of the corporation are both in another state. The ILC suggests that in such
circumstances, that other state may be regarded as the state of nationality.68
As is well known, the decision of the Court in Barcelona Traction was, and
remains, extremely controversial as a matter of law and legal policy. It has been
suggested that the decision was out of step with customary international law,
including state practice in investment treaties and lump sum settlement agree-
ments. It has also been suggested that because, in practice, states will not exercise
diplomatic protection in the absence of some genuine connection, excluding claims
by states whose nationals have a substantial shareholding will in practice leave
corporations and their shareholders bereft of a remedy. Yet for better or worse,
Barcelona Traction can be seen as the ICJ’s single most relevant contribution to the
law of diplomatic protection, and one that has shaped the subsequent evolution of
the regime of international claims more generally. It is also, as noted by the ILC,
consistent with customary international law. In 2003, the question was put to states
in the Sixth Committee of the General Assembly whether a state of nationality
should be entitled to exercise diplomatic protection in circumstances other than
those exceptions identified in Barcelona Traction, and there was very little support
for reconsideration of the rule.69 With the decision in Barcelona Traction, rights of
shareholders could only rarely be espoused by way of diplomatic protection. In
practice, they have come to be protected via other means, notably through special
treaty regimes whose interaction with the general law of diplomatic protection is a
matter of some controversy (discussed in subsection 4.5).
Since Barcelona Traction, both the Court and the ILC have grappled with the
scope of the exceptions averred to in the decision. The ILC accepted that, as a
matter of fundamental principle, ‘a corporation is to be protected by the State of
nationality of the corporation and not by the State or States of nationality of the
shareholders in a corporation’.70 Nevertheless, the ILC’s Draft Articles incorporate
two exceptions. The first permits the national state of a shareholder to exercise
diplomatic protection in circumstances where the rights of the shareholder (as
distinct from those of the corporation) are directly injured.71 While this may be

67 See ILC Draft Articles (n 42), Commentary to Art 9, para 4.
68 See ILC Draft Articles (n 42), Art 9.
69 Of the fifteen delegates who spoke on this issue, only Germany suggested that Barcelona Traction
should be reconsidered: see Official Records of the General Assembly, Fifty-Seventh Session, Supple-
ment No 10 (A/57/10) 28.
formulated as an exception to the general rule, it may also be characterized as

following from first principle: since the claim is for direct injury to the direct rights
of a national, such a claim can properly be brought by the state of nationality of the
shareholder. The ICJ confirmed that a national state of a shareholder can exercise
diplomatic protection to protect against infringement of the direct rights of
shareholders, in its decision on preliminary objections and judgment on the merits
in Diallo.72 The Court noted that the distinction between the rights of the
company and the rights of the shareholder might appear to be an artificial one,
but nevertheless considered that it was the correct approach. It stated:
In the following paragraphs, the Court is careful to maintain the strict distinction between
the alleged infringements of the rights of the two [companies] at issue and the alleged
infringements of Mr. Diallo’s direct rights as associé of these latter . . . The Court understands
that such a distinction could appear artificial in the case of [a company] in which the parts
sociales are held in practice by a single associé. It is nonetheless well-founded juridically, and it
is essential rigorously to observe it in the present case. Guinea itself accepts this distinction
in the present stage of the proceedings, and most of its arguments are indeed based on it.
The Court has to deal with the claims as they were presented by the Applicant.73
In its decision on the merits in Diallo, the Court came to examine the question of
the scope of the direct rights of a shareholder. On this question, the Court effected a
renvoi to national law.74 Based on its understanding of the applicable domestic law,
it examined the direct rights of Mr Diallo (a) to take part and vote in general
meetings; (b) to appoint a gérant; and (c) to oversee and monitor the management
of the company.75 The Court did not recognize any applicable customary inter-
national law rules governing a shareholder’s substantive rights.76 Neither did the
Court accept that Guinea could claim to vindicate Diallo’s ownership rights in his
parts sociales.77 The Court emphasized that there is a distinction between the
property of a corporation and that of the shareholder, even in the case of a single
shareholder.
The Court observes that international law has repeatedly acknowledged the principle of
domestic law that a company has a legal personality distinct from that of its shareholders.
This remains true even in the case of [a company] which may have become unipersonal in
the present case. Therefore, the rights and assets of a company must be distinguished from
the rights and assets of an associé. In this respect, it is legally untenable to consider, as Guinea
argues, that the property of the corporation merges with the property of the shareholder.
Furthermore, it must be recognized that the liabilities of the company are not the liabilities
of the shareholder . . . 78
72 Diallo (Merits) (n 64) para 114; see also Diallo (Preliminary Objections) (n 41) 64.
73 Diallo (Merits) (n 64) para 115 (references omitted).
74 Diallo (Merits) (n 64) para 104; see also Diallo (Preliminary Objections) (n 41) 64.
75 Diallo (Merits) (n 64) paras 117–48.
76 For a critique of this approach see B Juratowitch, ‘The Diplomatic Protection of Shareholders’
(2010) 81 BYIL 281.

77 Diallo (Merits) (n 64) para 151.
78 Diallo (Merits) (n 64) para 155. See also para 157.
On this issue, the decision of the majority attracted criticism even from within the
Court. Judges Al-Khasawneh and Yusuf, in a Joint Dissenting Opinion, suggested
that the Court had been ‘patently apologetic’,79 stating:
Of course Guinea had to accept this distinction in view of the res judicata of the 2007
Judgment. However, we believe it was well within the Court’s power to take cognizance of
the reality of the situation, in particular that where there is in effect one associé/gérant the
infringement of the company rights is ipso facto infringement of the direct rights of the
owner.
By insisting on a dogmatic application of a one-size-fits-all approach from Barcelona
Traction (or rather on a narrow interpretation of Barcelona Traction that did not
take account of the absence of a protecting state), the Court missed a chance to
provide redress to Mr Diallo as a matter of equity without at the same time
detracting from the formal force of its 2007 Judgment on Preliminary Objections.
Equally importantly, the Court missed a chance to bring into line the standard of
protection of investors like Mr Diallo with the standard now found in jurispru-
dence emanating from regional courts and arbitral tribunals. This latter standard, as
had been previously alluded to, has arguably become an international minimum
standard to which even those investors not covered by bilateral or multilateral
investment treaties may be entitled.80
The second exception incorporated by the ILC in its Draft Articles (which was
averred to in Barcelona Traction and which finds support in some arbitral awards)81
permits a state of nationality of the shareholder to bring a claim in circumstances
where the corporation has ceased to exist in the state of incorporation for reasons
unrelated to the injury, and in circumstances where (a) the corporation had, at the
date of injury, the nationality of the state causing the injury and (b) incorporation
in that state was a precondition for doing business there.82 The Court has not yet
determined whether this exception reflects customary international law: in Diallo, it
concluded that the exception did not apply on the facts.83
In an earlier decision in ELSI, a Chamber of the Court held that the United
States was able to bring a claim against Italy in respect of damage suffered by an
Italian company whose shares were wholly owned by two American companies.84
While this decision appears to broaden the scope for claims for injuries to share-
holders, (a) the Chamber was concerned with interpretation of a specific treaty
rather than general international law; and (b) the decision might be explained on
the basis that the claim was for injury to the direct rights of the shareholders (the
first exception), or that the company had ceased to exist because it had gone into
79 Diallo (Merits) (n 64) Joint Dissenting Opinion of Judges Al-Khasawneh and Yusuf, 708.
80 Diallo (Merits) (n 64) 7.
81 See ILC, Report of the Fifty-Eighth Session (n 42), Commentary to draft Art 11, para 9.
83 The Court left open whether Art 11(b) reflected customary international law: see Diallo
(Preliminary Objections) (n 41) paras 91–3.

84 ELSI (n 35).
liquidation and the injury was caused by the state of incorporation (the second
exception).85
Following ELSI, there were suggestions in commentaries, and in the work of the
ILC, that the rules governing standing to bring a diplomatic protection claim under
customary international law for injuries to shareholders may have become less
restrictive. However, the two decisions in Diallo suggest that the trend is not
towards an expansion of the exceptions to the Barcelona Traction rule that injuries
to corporations must be vindicated by the state of incorporation. This results in a
disparity in the international law protection of shareholders protected by an invest-
ment treaty, and those shareholders whose rights are protected only by customary
international law vindicated by diplomatic protection claims.86 Investment arbitra-
tion claims may be brought by any investor, and the investment need not be held
directly, so that claims may be brought by shareholders, even of a company
incorporated in the host state.87 Those claims may encompass damages for injury
to the shareholder’s ‘investment’, that investment being the shares in a company. As
noted by the tribunal in Total v Argentina:
The protection that [bilateral investment treaties] afford to . . . investors is . . . not limited to
the free enjoyment of their shares but extends to the respect of the treaty standards as to the
substance of their investments.88
Moreover, as noted in the Joint Dissenting Opinion of Judges Al-Khasawneh and
Yusuf in Diallo cited above, apart from the disjuncture between the standing of
shareholders bringing claims under investment treaties entered into by their state of
nationality, the approach of the Court results in a disjuncture between the substan-
tive standards by which the conduct of the host state is adjudged. For shareholders
covered by an investment treaty, the international law protection offered by the
treaty provides the standard by which the host state’s conduct is measured. For
shareholders whose direct rights are vindicated by their state of nationality through
diplomatic protection claims, the standard by which the host state’s conduct is
measured is the domestic law of the host state. Effectively, the Court has concluded
that there are no customary international law rights of shareholders that can be the
subject of a diplomatic protection claim. The Court’s renvoi to domestic law in this
context has severely limited the protection now afforded to shareholders by cus-
tomary international law, and it stands in stark contrast to the protection offered to
shareholders in the context of specific treaties.
85 See discussion in J Dugard, Fourth Report on Diplomatic Protection (2003) UN Doc A/CN.4/
530, 10-1, paras 23–6.

86 See also Diallo (Merits) (n 64) Joint Dissenting Opinion of Judges Al-Khasawneh and Yusuf
701–2.
87 See eg CMS v Argentina (ICSID Case No ARB/01/8) (Decision on Jurisdiction), 17 July 2003,
paras 66, 68; Siemens v Argentina (ICSID Case No ARB/02/8) (Decision on Jurisdiction), 3 August
2004, para 150. This can give and has given rise to criticisms where different tribunals constituted to
determine claims brought by a shareholder and a company in respect of the same subject matter have
reached different conclusions: CME v Czech Republic (Merits), 9 ICSID Rep 121; Lauder v Czech
Republic (Merits), 9 ICSID Rep 66.
88 Total SA v Argentina (ICSID Case No ARB/04/01) (Preliminary Objections), 25 August 2006,
para 74.
4.5 The influence of special regimes on the law

of diplomatic protection
The preceding examination of the ICJ’s approach to shareholders in diplomatic
protection claims leads to a final consideration—that of the ICJ’s treatment of state
practice in the context of investment claims as an agent for the development of
customary international law. The ICJ has been consistently reluctant to find that
the rules applicable to investment claims have impacted on the rules applicable to
diplomatic protection claims under general international law, characterizing invest-
ment claims practice as lex specialis. In Barcelona Traction the ICJ noted the
existence of special regimes which permitted claims to be brought in respect of
injury to shareholders, noting that the protection of shareholders in international
law was only achieved by reference to the special regimes:
Thus, in the present state of the law, the protection of shareholders requires that recourse be
had to treaty stipulations or special agreements directly concluded between the private
investor and the State in which the investment is placed. States ever more frequently provide
for such protection, in both bilateral and multilateral relations, either by means of special
instruments or within the framework of wider economic arrangements. Indeed, whether in
the form of multilateral or bilateral treaties between States, or in that of agreements between
States and companies, there has since the Second World War been considerable development
in the protection of foreign investments. The instruments in question contain provisions as
to jurisdiction and procedure in case of disputes concerning the treatment of investing
companies by the States in which they invest capital. Sometimes companies are themselves
vested with a direct right to defend their interests against States through prescribed proced-
ures. No such instrument is in force between the Parties to the present case.89
The Court characterized such regimes as lex specialis and did not consider that this
practice had an impact on the customary international law rules applicable to
diplomatic protection claims.90
The ILC confirmed that the international investment regime constitutes a lex
specialis regime and that the rules applicable in that context do not govern
diplomatic protection claims or contribute to the development of customary rules
applicable to diplomatic protection claims.91 The same point was made by the ICJ
in Diallo in 2007, distinguishing between direct claims by investors under the
International Centre for the Settlement of Investment Disputes (ICSID) and
diplomatic protection claims,92 and the majority of the Court did not depart
from that approach in its decision on the merits in 2010. That the investment
regime constitutes a lex specialis has also been acknowledged by a number of
investment tribunals.93

90 Diallo (Preliminary Objections) (n 41) paras 62–3.
91 ILC Draft Articles (n 42), Art 17. See also Diallo (Preliminary Objections) (n 41) para 88.
93 See eg Camuzzi v Argentina I (Decision on Jurisdiction), 11 May 2005, para 145; CH Schreuer
et al, The ICSID Convention: A Commentary (Cambridge: CUP, 2nd edn 2009) 417.
The impact of the practice under investment treaties on customary law raises a
broader question: the extent to which the practice of states in concluding and
implementing treaties can contribute to the development of a customary inter-
national law rule. As Higgins observed, ‘one of the most difficult issues in contem-
porary international law is to know when a perceptible treaty practice suggests a
change in customary international law, or whether it rather reflects that customary
international law is still unchanged, and if different practices are required, a treaty is
needed’.94 One can imagine the difficulties in circumstances where the treaty
practice is inconsistent or limited to a particular region. But where there are literally
thousands of investment treaties which provide standing for protection of share-
holders’ rights, the claim to a change in customary international law must stand on
solid ground. As has been noted, it is difficult to see what practice could constitute
state practice in support of the development of a customary international law, other
than the conclusion of treaties giving standing to vindicate wrongs against share-
holders.95
Of greater concern is the disjuncture identified above between the substantive
rights of shareholders which can be protected in limited circumstances under
diplomatic protection, and the substantive rights of shareholders under an invest-
ment treaty.
5. Conclusions: progress and stagnation

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

17 May 2013) 3.
95 See Juratowitch (n 76) 299.
example, that nationality for international purposes is not determined exclusively
within a state’s discretion) which finds special or exceptional application in particu-
lar cases.
In recent years, both commentary and judicial decisions have been concerned
with the question of protection of shareholders, both procedurally and in terms of
substantive international law protection. This question has been and continues to
be dominated by the Court’s decision in Barcelona Traction and the fundamental
principle enunciated therein that a corporation’s interests should be protected by its
state of nationality, rather than through a claim to vindicate the injury suffered by
shareholders. While this principle may have a valid basis, the Court’s strict adher-
ence to it has resulted in a situation where the doctrine of diplomatic protection is
lagging behind concrete developments which must have had some transformative
effect on international law protection of foreigners, with the result that many
entities and persons will be left without any meaningful practical remedy. This is
seen most vividly in the Court’s two decisions in Diallo, in which it took restrictive
approaches both to the question of standing to bring claims for injuries to rights of
shareholders and to the question of the substance of those direct rights of share-
holders. In this regard, the Court has no claim to be an agent of legal development.
As a result of the Court’s recent approach, there is a significant disjuncture
between the substantive and procedural rights afforded to shareholders covered by
an investment treaty and the substantive and procedural rights available to share-
holders under customary international law. This disjuncture is also attributable to
the Court’s treatment of the practice in international investment law as lex specialis.
The current approach of the Court to the practice of investment tribunals positions
the investment regime as one parallel to, rather than intersecting with, diplomatic
protection claims. As a result, developments in investment law (which posit the
shareholder protected by a treaty in a significantly advantageous position vis-à-vis a
shareholder protected by customary international law) are considered as having no
developmental impact on customary international law relating to diplomatic pro-
tection. As investment law continues to develop, it is likely that the decline in the
use of diplomatic protection as a means to protect the interests of shareholders and
companies will continue, and that this field of law (and the ICJ’s enduring influ-
ence on the protection of foreigners in general) will lessen in practical significance.
7
Jurisdictional Immunities
Roger O’Keefe
1. Introduction
The scope of the jurisdictional immunities owed by one state to another1 under
customary international law is one of the more unsettled and combustible
questions to have come before the International Court of Justice over the past
decade. The ICJ’s answers to certain aspects of this question have already proved
and are likely further to prove influential on, even decisive for, the development
of the law, both in what they have said as to its contemporary content and in the
conservative tone they have set. Nor has the Court always contented itself in this
regard with its assigned role as a subsidiary source of international law, at-
tempting in at least one instance to will customary rules into being through
ipse dixit. In a more recent case, in contrast, it has engaged in an orthodox
analytical survey of state practice and opinio juris supplemented by restrained
reliance on argument from first principles. The results of the Court’s forays into
the law of interstate immunities have been, variously, to crystallize, to catalyse the
further formation of, to consolidate, and to set the seal on the customary rules at
issue. Not all, however, of the Court’s statements on jurisdictional immunities
have touched on controversy. Many have represented no more than textbook
expositions of doctrinal principle as to the nature and implementation of such
immunities. Dicta of this sort have served usefully to affirm or clarify certain
fundamentals of the law of jurisdictional immunities, and have been restated
since in a range of fora.
In terms of its place in the wider development of the law of jurisdictional
immunities, the Court did not, perhaps needless to say, give birth to this canonical
1 This chapter deals only with those jurisdictional immunities owed by one state to another. It does
not deal with the separate but related question of the jurisdictional immunities owed by states in
respect of officials of international organizations, a point at issue in Applicability of Article VI,
Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion)
[1989] ICJ Rep 177, paras 40–60 and Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62. Some of what
the Court had to say in the second case about the general nature of jurisdictional immunity is, however,
considered below.
corpus of international rules. The law of state immunity, a corollary of the
sovereign equality of states on which classical international law is premised,
predates the Court’s involvement by centuries. The law of diplomatic immunity
goes back even further. Leaving aside the straightforward application in United
States Diplomatic and Consular Staff in Tehran of the established rules on the
personal inviolability and immunity of diplomatic agents and consular officers,2
it was not until in 2002 that the Court rendered a judgment on the jurisdictional
immunities applicable among states. Other international lawmaking processes
created the field and shaped its basic contours. That said, the Court’s contribution
has been more than mere filigree. In relation to immunities ratione personae beyond
the diplomatic and head-of-state context, as well as to immunities generally in the
context of criminal jurisdiction, especially where international crimes are alleged,
the Court was drawn in while the customary law remained inchoate, enabling it to
set its stamp on the emergent rules. In relation to civil claims against foreign states
involving alleged violations of international rules for the humane treatment of
individuals and groups, in particular where the allegation is of a violation of jus
cogens, the Court was called on to intervene in the midst of a divided and bitterly
controverted body of practice, placing it in the position of final arbiter.
The present chapter considers the Court’s less contentious contributions to the
international law of jurisdictional immunities before examining its impact on more
disputed matters and its place in the wider milieu of normative development on
point. The chapter comes with the caveat that the Court’s two judgments on
immunities in the context of criminal proceedings against foreign state officials,
namely Arrest Warrant of 11 April 2000 3 and Certain Questions of Mutual Assistance
in Criminal Matters,4 were rendered only in 2002 and 2008 respectively, while its
judgment in Jurisdictional Immunities of the State,5 on state immunity and civil
proceedings for death or personal injury, was handed down as recently as February
2012. The relative freshness of this jurisprudence makes any assessment of the
Court’s role in the development of international law in this area necessarily
tentative and, as regards the last case, largely speculative.
2 See United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, paras
62–8 and 76–80.

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

Jurisdictional Immunities 109
2. Less contentious questions
2.1 Jurisdictional immunities in general

The ICJ has in several cases articulated a few generally applicable axioms of the
international law of jurisdictional immunities. It has also, slightly more contestably,
asserted one more, accompanied by what might be called a recommendation of best
practice. Some of these statements have already been received into the canon, and
the most recent ones promise to be.
The Court has underlined on numerous occasions the purely procedural nature
of the immunity from the jurisdiction of another state’s courts to which inter-
national law may entitle a state or which international law may entitle that state
to see accorded to certain individuals who represent it.6 The international law
governing immunity from jurisdiction, the Court observed in Jurisdictional
Immunities, is ‘entirely distinct from the substantive law which determines
whether . . . conduct is lawful or unlawful’.7 Expanding on the point in the context
specifically of state immunity, the Court said:
The rules of State immunity are procedural in character and are confined to determining
whether or not the courts of one State may exercise jurisdiction in respect of another State.
They do not bear upon the question whether the conduct in respect of which the
proceedings are brought was lawful or unlawful.8
The Court had earlier emphasized in Arrest Warrant that any immunity ratione
personae from the jurisdiction of the courts of another state from which incum-
bent ministers for foreign affairs might benefit did not equate to ‘impunity for any
crimes they might have committed’.9 ‘Jurisdictional immunity’, the Court
remarked, ‘may well bar prosecution for a certain period’, but it ‘cannot exonerate
the person to whom it applies from . . . criminal responsibility’.10 Recalling these
words in the context of state responsibility in Jurisdictional Immunities, the Court
reiterated that ‘the fact that immunity may bar the exercise of jurisdiction in a
particular case does not alter the applicability of the substantive rules of inter-
national law’, so that ‘whether a State is entitled to immunity before the courts
of another State is a question entirely separate from whether the international
responsibility of that State is engaged and whether it has an obligation to make
reparation’.11
6 See Arrest Warrant (n 3) para 60; Jurisdictional Immunities (n 5) paras 58 and 93.
7 Jurisdictional Immunities (n 5) para 58.
8 Jurisdictional Immunities (n 5) para 93. See also para 60, where the Court explains that, insofar as
the distinction between acta jure imperii and acta jure gestionis ‘is significant for determining whether or
not a State is entitled to immunity from the jurisdiction of another State’s courts in respect of a
particular act’, this distinction ‘has to be applied before that jurisdiction can be exercised, whereas the
legality or illegality of the act is something which can be determined only in the exercise of that
jurisdiction’.
9 Arrest Warrant (n 3) para 60, emphasis omitted.
10 Arrest Warrant (n 3) para 60. 11 Jurisdictional Immunities (n 5) para 100.
A corollary of the procedural nature of jurisdictional immunity identified by
the Court in its Advisory Opinion in Immunity from Legal Process of a Special
Rapporteur is ‘a generally recognized principle’, which states are ‘under an
obligation to respect’, that ‘questions of immunity are . . . preliminary issues
which must be expeditiously decided in limine litis’.12 Putting it simply, as the
Court did later in Jurisdictional Immunities, ‘national courts have to determine
questions of immunity at the outset of the proceedings, before consideration of
the merits’:13
Immunity from jurisdiction is an immunity not merely from being subjected to an adverse
judgment but from being subjected to the trial process. It is . . . necessarily preliminary in
nature. Consequently a national court is required to determine whether or not a foreign
State is entitled to immunity as a matter of international law before it can hear the merits of
the case brought before it and before the facts have been established.14
A consequence of the preliminary character of a plea of immunity was that
‘[i]mmunity cannot . . . be made dependent upon the outcome of a balancing
exercise of the specific circumstances of each case to be conducted by the national
court before which immunity is claimed’.15
As to the relationship that may exist between the law of jurisdictional immunity
and the law of state responsibility, the Court in Certain Questions of Mutual
Assistance—having asserted that ‘the State which seeks to claim immunity for one
of its State organs’, including one of its officials, ‘is expected to notify the
authorities of the other State concerned’, so as to ‘allow the court of the forum
State to ensure that it does not fail to respect any entitlement to immunity and . . .
thereby engage the responsibility of that State’16—took the view that ‘the State
notifying a foreign court that judicial process should not proceed, for reasons of
immunity, against its State organs, is assuming responsibility for any internationally
wrongful act in issue committed by such organs’.17
The ICJ’s doctrinally unremarkable but helpful statements on the nature and
implementation of jurisdictional immunity have been endorsed by a range of
actors. For example, the Swiss Federal Criminal Court has recalled the ICJ’s dictum
from Immunity from Legal Process of a Special Rapporteur to hold that ‘the question
of immunity . . . must be considered at the very earliest stages of the proceedings’.18
The Court of Appeal of England and Wales quoted the same dictum verbatim in
Jones v Ministry of the Interior of the Kingdom of Saudi Arabia, recounting that
‘questions of immunity are . . . preliminary issues which must be expeditiously
12 Immunity from Legal Process of a Special Rapporteur (n 1) paras 63 and 67(2)(b); Jurisdictional
Immunities (n 5) para 82.

16 Certain Questions of Mutual Assistance (n 4) para 196.
18 A v Ministère public de la Confédération, B and C dossier no. BB.2011.140, decision of 25 July
2012 (Swiss Fed Crim Ct), para 5.2, author’s translation.

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

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

Most fundamentally, the Court observed that state immunity from civil proceed-
ings in the courts of another state ‘had been “adopted as a general rule of customary
international law solidly rooted in the current practice of States”’.25 This practice
showed ‘that, whether in claiming it for themselves or according it to others, States
19 Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (2006) 129 ILR 629 (UKHL), 663,
para 30 (Mance LJ).

20 Immunity of State Officials from Foreign Criminal Jurisdiction. Memorandum by the Secretar-
iat, UN Doc A/CN.4/596 (31 March 2008) 143, para 220.

21 See RA Kolodkin, Preliminary Report on Immunity of State Officials from Foreign Criminal
Jurisdiction (2008) UN Doc A/CN.4/601, 33, para 68; RA Kolodkin, Third Report on Immunity of
State Officials from Foreign Criminal Jurisdiction (2011) UN Doc A/CN.4/646, 6–7, para 11.
22 See Kolodkin, Preliminary Report (n 21) 32, para 66.
23 See Kolodkin, Third Report (n 21) 8–9, paras 16–18. See also Re Gorbachev, City of
Westminster Magistrates’ Court (Daphne Wickham, Deputy Senior District Judge) 30 March
2011, unreported.
24 ILC, Report of the Sixtieth Session (2008) UN Doc A/CN.4/606 (21 January 2009) 19, para 97.
25 Jurisdictional Immunities (n 5) para 56, quoting ILC Ybk 1980 II/2, 147, para 26.
generally proceed on the basis that there is a right to immunity under international
law, together with a corresponding obligation on the part of other States to respect
and give effect to that immunity’.26 This ‘rule of State immunity’, which was said
to occupy ‘an important place in international law and international relations’,
derives, the Court explained, ‘from the principle of [the] sovereign equality of
States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes
clear, is one of the fundamental principles of the international legal order’.27
These statements, while doctrinally banal, are not without importance, putting
paid once and for all, as they must surely do, to the threadbare argument that the
‘grant’ of state immunity by one state to another is no more than a matter of
comity, and therefore discretionary, rather than an obligation imposed by custom-
ary international law. While the basis of state immunity in mandatory customary
rules has long been recognized, including by other international courts,28 the
Court’s reaffirmation of this most elementary of doctrinal truths—after the US
Supreme Court and, only months prior to the ICJ’s Judgment, the Court of Final
Appeal of the Hong Kong Special Administrative Region’s anachronistic endorse-
ments of the view that the grant of state immunity is a discretionary matter of
comity29—will doubtless reverberate.
2.2.2 Proceedings for the recognition and enforcement of a foreign judgment

The Court also expounded in Jurisdictional Immunities on the nature of proceed-
ings for the recognition and enforcement, as distinct from execution, of a foreign
judgment—that is, for, in effect, converting a foreign judgment into a local one by
means of the grant of exequatur or some equivalent municipal legal procedure. The
Court explained:
128. Where a court is seised, as in the present case, of an application for exequatur of a
foreign judgment against a third State, it is itself being called upon to exercise its jurisdiction
in respect of the third State in question. It is true that the purpose of exequatur proceedings
is not to decide on the merits of a dispute, but simply to render an existing judgment
enforceable on the territory of a State other than that of the court which ruled on the merits.
It is thus not the role of the exequatur court to re-examine in all its aspects the substance of
the case which has been decided. The fact nonetheless remains that, in granting or refusing
exequatur, the court exercises a jurisdictional power which results in the foreign judgment
being given effects corresponding to those of a judgment rendered on the merits in the
26 Jurisdictional Immunities (n 5) para 56. 27 Jurisdictional Immunities (n 5) para 57.

28 See Al-Adsani v UK (2001) 123 ILR 24, 40, paras 54–6; Fogarty v United Kingdom (2001) 123 ILR
53, 65, paras 34–6; McElhinney v Ireland (2001) 123 ILR 73, 84–5, paras 35–7; Kalogero-poulou and Others
v Greece and Germany (2002) 129 ILR 537, 546.
29 See Republic of Austria and Others v Altmann (2004) 147 ILR 681, 689 (USSC); DCR v FG
Hemisphere Associates LLC (No. 1) (2011) 147 ILR 376, 451, para 228, 452, para 231 (CFA HKSAR) (‘a
state’s prerogative to decide on the scope of the immunity it is prepared to confer on other states’), and
464, para 272 (‘[c]onsulting its own interests in the light of its own foreign policy, the PRC favours in
principle the solution of disputes which involve foreign states through diplomatic channels and similar
means, rather than submitting such disputes to the compulsory, and necessarily less flexible, jurisdiction
of a municipal court’) (Chan and Ribeiro PJJ and Mason NPJ) (CFA HKSAR 2011).
requested State. The proceedings brought before that court must therefore be regarded as
being conducted against the third State which was the subject of the foreign judgment.
...
130. It follows from the foregoing that the court seised of an application for exequatur of a
foreign judgment rendered against a third State has to ask itself whether the respondent
State enjoys immunity from jurisdiction—having regard to the nature of the case in which
that judgment was given—before the courts of the State in which exequatur proceedings
have been instituted. In other words, it has to ask itself whether, in the event that it had itself
been seised of the merits of a dispute identical to that which was the subject of the foreign
judgment, it would have been obliged under international law to accord immunity to the
respondent State.30
In short, proceedings for the recognition and enforcement of a foreign judgment
are judicial proceedings in their own right, and as such implicate the judgment
debtor state’s immunity from the jurisdiction of the court in which the application
for recognition and enforcement is made in precisely the same way as would have
proceedings on the merits of the claim.
It is safe to predict that these two paragraphs from the ICJ’s Judgment will
become the locus classicus on point. Nor is their interest purely academic. While
prior to the Court’s dicta there was a degree of appreciation in national courts that
international law treated state immunity from proceedings for the recognition and
enforcement of a foreign judgment (and, for that matter, of an arbitral award) as if
they were proceedings on the merits,31 the position was obscured in one influential
jurisdiction by statute32 and seemingly misunderstood by certain governments—
among them those involved in the instant case,33 whose confusion the Court was
obliged to dispel.34 The latter’s limpid elucidation of the correct approach to be
followed represents a real and surely decisive service to the harmonization of
national practice in this regard.
2.2.3 The immunity of state property from foreign measures of constraint

Article 19 of the United Nations Convention on Jurisdictional Immunities of
States and Their Property 200435 prohibits, as a prima facie rule subject to
exceptions, the taking of judicial measures of constraint, such as attachment and
30 Citation omitted.
31 See the Supreme Court of Canada in Kuwait Airways Corporation v Iraq and Bombardier
Aerospace (2010) 147 ILR 303 (CanSC) and the UK Supreme Court in NML Capital Limited v
Argentina (2011) 147 ILR 575 (UKSC), 587, para 29 (Lord Phillips PSC), 622, para 115 (Lord
Collins JSC), 630, para 148 (Lord Clarke JSC). The ICJ refers to both cases in Jurisdictional
Immunities (n 5) para 130.
32 See Civil Jurisdiction and Judgments Act 1982 (UK), s. 31(1) (‘Overseas judgments given
against states, etc’), as elaborated on in NML Capital v Argentina (n 31) 592–3, paras 48–9 and
594, para 54 (Lord Phillips PSC), 622–3, paras 117–19 (Lord Collins JSC).
33 See Jurisdictional Immunities (n 5) paras 122–3, where the Court recalls the parties’ submissions.
34 See Jurisdictional Immunities (n 5) paras 125–126.
35 United Nations Convention on Jurisdictional Immunities of States and Their Property,
2 December 2004, UN Doc A/RES/59/38, Annex (16 December 2004) (not in force) (‘UN
Convention on State Immunity’/‘UNCSI’).
execution, against property of a foreign state located in the territory of the forum
state. The most laboriously drafted paragraph of Article 19, namely paragraph (c),
specifies an exception to the immunity of foreign state property36 in the forum state
where and to the extent that ‘it has been established that the property is specifically
in use or intended for use by the State for other than government non-commercial
purposes’.37 At least the essence of Article 19(c)’s ‘commercial use’ exception to the
immunity of foreign state property is based on a considerable degree of state
practice.38
In Jurisdictional Immunities of the State, Germany relied on the provisions of
Article 19, arguing that they ‘codified, in relation to the issue of immunity from
enforcement [i.e. execution], the existing rules under general international law’.39
In response, the International Court of Justice stated:
117. When the United Nations Convention was being drafted, these provisions gave rise to
long and difficult discussions. The Court considers that it is unnecessary for purposes of the
present case to decide whether all aspects of Article 19 reflect current customary inter-
national law.
118. Indeed, it suffices for the Court to find that there is at least one condition that has to
be satisfied before any measure of constraint may be taken against property belonging to a
foreign State: that the property must be in use for an activity not pursuing government non-
commercial purposes, or that the State which owns the property has expressly consented to
the taking of a measure of constraint, or that that State has allocated the property in question
for the satisfaction of a judicial claim.
In other words, the Court held that the most significant exception to the immunity of
state property from post-judgment measures of constraint, viz the ‘commercial use’
exception, reflects customary international law. What it did not say, and was not
required to say, was whether the proviso to Article 19(c), ‘that post-judgment measures
of constraint may only be taken against property that has a connection with the entity
against which the proceeding was directed’, is also consonant with custom.
The Court’s holding, although scarcely unexpected given the weight of state
practice behind it, nonetheless confirms customary international law’s historic shift
away from the absolute immunity of the property of a state from post-judgment
36 The formulation ‘the immunity of State property’ is used here by way of convenient shorthand
for ‘the immunity of a state in respect of its property’. As a matter of international law, it is in the state
alone, and not in its property, that any entitlement to immunity from the jurisdiction of the courts of
another state vests.
37 The proviso is added that ‘post-judgment measures of constraint may only be taken against
property that has a connection with the entity against which the proceeding was directed’.
38 See eg Foreign Sovereign Immunities Act 1976 (US) (‘FSIA (US)’), s. 1610(a)(2); State
Immunity Act 1978 (UK) (‘SIA (UK)’), s. 13(4); State Immunity Ordinance 1981 (Pakistan) (‘SIO
(Pak)’), s. 14(2)(b); State Immunity Act (Canada) (‘SIA (Can)’), s. 12(1)(b); Foreign States Immunities
Act 1981 (South Africa) (‘FStIA (SA)’), s. 14(3); Foreign States Immunities Act 1985 (Australia)
(‘FStIA (Aus)’), s. 32(1) and (3)(a); State Immunity Act 1985 (Singapore) (‘SIA (Sing)’), s. 15(4);
Foreign States Immunity Law 2008 (Israel) (‘FSIL (Isr)’), s. 16(1). See also Philippine Embassy Bank
Account Case, 65 ILR 146 (1977) and comparative case law cited therein; Société Sonatrach v Migeon,
77 ILR 525, 527 (1985); Kingdom of Spain v Company X SA, 82 ILR 38, 41 (1986); Abbott v Republic
of South Africa, 113 ILR 411, 419–24 (1992) and comparative case law cited therein.
measures of foreign judicial constraint towards an attenuated form of restrictive

immunity. It remains to be seen whether those jurisdictions that still subscribe to
the former position move with the Court. At the very least, they can no longer take
umbrage should a foreign court grant execution against commercial property of
theirs situate in the forum state.
3. More contentious questions
3.1 The immunity of state officials from foreign criminal jurisdiction

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

3.1.1.1 The range of beneficiaries
Prior to the ICJ’s Judgment in Arrest Warrant, serving diplomats41 and heads
of state were alone in being incontrovertibly the beneficiaries under customary
40 ILC, Report of the Sixtieth Session (2008) UN Doc A/63/10, 341, para 311.
41 The term is used here to refer to diplomatic agents within the meaning of the Vienna Convention
on Diplomatic Relations, 18 April 1961, 500 UNTS 95 (VCDR), Art. 1(e); to members of the
diplomatic staff of a special mission within the meaning of the Convention on Special Missions,
international law of an absolute immunity ratione personae from foreign criminal
jurisdiction and from foreign judicial measures to compel their giving evidence as a
witness, as well as of inviolability from foreign measures of personal constraint such
as arrest and detention.42 In contrast, the position of serving heads of government
and, even more so, of serving ministers for foreign affairs was uncertain. There was
some evidence to suggest that they too benefited from immunity ratione personae
and from inviolability,43 but this was slight and ambivalent.44 Against the norma-
tive background of a state’s jurisdiction within its own territory to enforce its
criminal law in the absence of a positive rule of international law compelling its
abstention, it was more plausible that these latter two officers of state, and
particularly ministers for foreign affairs, benefited only from the immunity ratione
materiae from foreign criminal jurisdiction from which any state official benefits
under customary international law in respect of acts performed in an official
capacity.
In Arrest Warrant, however, the ICJ ruled that a serving minister for foreign
affairs was entitled to absolute immunity ratione personae from foreign criminal
jurisdiction and to inviolability from foreign measures of personal constraint.45 The
Court presented its conclusion as one of customary international law,46 but it
adduced no state practice or opinio juris in support. Instead it argued teleologically.
The immunities that as a matter of customary international law protected ministers
for foreign affairs did so, the Court reasoned, ‘to ensure the effective performance of
their functions on behalf of their respective States’.47 ‘In the performance of these
functions’, the Court continued, a minister for foreign affairs ‘is frequently required
to travel internationally, and thus must be in a position freely to do so whenever the
need should arise’.48 ‘[A]ccordingly’, the Court concluded, ‘the functions of a
Minister for Foreign Affairs are such that, throughout the duration of his or her
8 December 1969, 1400 UNTS 231 (CSM), Art. 1(h); and to members of the diplomatic staff of a
mission to an international organization within the meaning of the Vienna Convention on the
Representation of States in their Relations with International Organizations of a Universal Character,
14 March 1975, UN Doc A/CONF.67/16 (not in force) (VCRS), Art. 1(1)(28).
42 In the case of diplomats, this immunity ratione personae and inviolability are codified. See
VCDR, Arts 29, 31(1) and (3), and 40(1); CSM, Arts 29, 31(1) and (3), and 42(1); VCRS, Arts 28
and 30(1) and (3). What distinguishes heads of state from diplomats is that the immunity ratione
personae and inviolability that serve to shield them are opposable to all foreign states, and not just to the
receiving/host and transit states.
43 See eg CSM, Art 21(2): ‘The Head of the Government, the Minister for Foreign Affairs and
other persons of high rank, when they take part in a special mission of the sending State, shall enjoy in
the receiving State or in a third State, in addition to what is granted by the present Convention, the
facilities, privileges and immunities accorded by international law.’ See also, mutatis mutandis, VCRS,
Art 50(2).
44 First, neither CSM, Art 21(2) nor VCRS, Art 50(2) presupposes that the ‘immunities accorded
by international law’ to heads of government and ministers for foreign affairs comprise immunity
ratione personae from criminal jurisdiction and inviolability or, for that matter, are identical in content.
Secondly, and more basically, whether either provision accords with customary international law is
unclear.
45 Arrest Warrant (n 3) para 54. 46 See Arrest Warrant (n 3) paras 52 and 53.
47 Arrest Warrant (n 3) para 53. 48 Arrest Warrant (n 3) para 53.
office, he or she when abroad enjoys full immunity from criminal jurisdiction and
inviolability’.49 This immunity and inviolability for the duration of the minister’s
term of office are without regard, the Court specified, to the capacity, public or
private, in which the impugned acts were performed or, indeed, to whether they
were performed during or prior to that term of office.50 Nor can any distinction be
drawn between official and private visits to foreign states.51
The Court noted that it was called on to address the immunity and inviolability
only of a minister for foreign affairs.52 At the same time, it alluded to the implicitly
cognate immunities from which, inter alia, heads of government were protected by
international law;53 and it highlighted in passing the analogous representative
capacities under international law of a minister for foreign affairs and a head of
government, both being taken, like the head of state, to speak for the state solely by
virtue of their office.54 Nor did the Court say that other officers of state did not
benefit from absolute immunity ratione personae and from inviolability. Indeed, it
considered it ‘firmly established’ that ‘certain holders of high-ranking office in a
State’, of which the head of state, head of government, and minister for foreign
affairs were cited as examples, ‘enjoy immunities from jurisdiction in other
States’.55 But the Court subsequently specified in Certain Questions of Mutual
Assistance, without explanation beyond noting that neither was a diplomat or on
a special mission, that at least two officers of state, namely a senior prosecuting
magistrate (procureur de la République) and the head of national security, do not
benefit under customary international law from immunity ratione personae from
foreign criminal jurisdiction.56
The ICJ’s ruling in Arrest Warrant on the minister for foreign affairs and its
heavy-handed hint in the same as to the head of government have already proved
instrumental in the development of the law. It now seems generally taken as read
that both these officers of state are the beneficiaries of absolute immunity ratione
personae from foreign criminal jurisdiction and of inviolability from foreign meas-
ures of personal constraint. In Belgium, where Arrest Warrant originated, the Court
of Cassation held the year after the ICJ’s Judgment that customary international
law ‘prohibits heads of . . . Government from being the subject of proceedings
before the criminal courts of foreign States’.57 In Italy, the Court of Cassation
49 Arrest Warrant (n 3) para 54.

50 Arrest Warrant (n 3) para 55. In short, immunity and inviolability enured ratione personae.
53 See Arrest Warrant (n 3) para 51.
54 See Arrest Warrant (n 3) para 53.
55 Arrest Warrant (n 3) para 51. That a head of state benefits from absolute immunity ratione
personae from foreign criminal jurisdiction and inviolability from foreign measures of constraint was
subsequently affirmed by the Court in Certain Questions of Mutual Assistance (n 4) paras 170 and 174.
57 Re Sharon and Yaron (2003) 127 ILR 110, 123 (Belg CoC). The Court of Cassation’s epigram-
matic Judgment does not refer to the ICJ’s ruling in Arrest Warrant, but this was doubtless no more
than a matter of civil law judicial form. The subsequently inserted article 1bis of the Preliminary Title
of Chapter I of the Belgian Code of Criminal Procedure provides for the immunity of ‘heads of state,
has stated obiter that heads of government and ministers for foreign affairs ‘clearly’
benefit under customary international law from immunity ratione personae from
foreign criminal jurisdiction and personal inviolability.58 The UN Secretariat, in its
study on the immunity of state officials for the ILC, described the ICJ’s Judgment
in Arrest Warrant as ‘an authoritative assessment of the state of customary inter-
national law with respect to the immunity ratione personae of the minister for
foreign affairs, which could be used, mutatis mutandis, to justify the immunity of
the incumbent head of Government’.59 As for the ILC itself, while not every
member of the Commission has been convinced that the ICJ’s decision as to
ministers for foreign affairs had ‘a firm basis in customary international law’,60
there has been ‘broad agreement’,61 strongly informed by the Court’s Judgment in
Arrest Warrant, that immunity ratione personae is enjoyed not only by heads of state
but also by heads of government and ministers for foreign affairs.62 This position
has been endorsed by states in discussion in the Sixth Committee.63
That said, the Court in Arrest Warrant was pushing at an open door. While there
was precious little proof positive that immunity ratione personae extended to
ministers for foreign affairs and heads of government, few states would have
dissented from the suggestion. In this light, the Court’s ruling on the minister
for foreign affairs and its prompting on the head of government, while more than
merely declaratory, are perhaps better seen as having crystallized, rather than
conjured up, customary international law, even were the latter formally possible.64
More singularly influential has been the Court’s nakedly policy-based approach
to identifying who benefits as a matter of custom from immunity ratione personae
heads of government, and ministers for foreign affairs during the period when they exercise their
function’, to the extent that this is ‘in conformity with international law’.
58 Italy v Djukanović ILDC 74 (IT 2004) para 10.
59 Immunity of State Officials. Memorandum by the Secretariat (n 20) 78, para 121.
60 ILC, Report of the Sixtieth Session (n 40) 334, para 290. See also ILC, Report of the Sixty-Third
Session (2011) UN Doc. A/66/10, 225, para 132; ILC, Report of the Sixty-Fourth Session (2012) UN
Doc A/67/10, 99, para 115.
61 ILC, Report of the Sixtieth Session (n 40) 339, para 307.
62 See also Kolodkin, Preliminary Report (n 21) 58, para 111; RA Kolodkin, Second Report on
Immunity of State Officials from Foreign Criminal Jurisdiction (2010) UN Doc A/CN.4/631, 4, para
7( j ) and 20, para 35; C Escobar Hernández, Preliminary Report on Immunity of State Officials
(2012) UN Doc A/CN.4/654, 8, para 33 and 14, para 63; ILC, Report of the Sixty-Fourth Session
(n 60) 100, para 116.
63 See Escobar Hernández, Preliminary Report (n 62) 10, para 44. See also UN Doc A/C.6/66/
SR.18 (2 December 2011) 10, para 53 (Mexico); UN Doc A/C.6/66/SR.19 (22 November 2011) 10,
para 56 (Hungary); UN Doc A/C.6/66/SR.24 (1 December 2011) 13, para 72 (Indonesia); UN Doc.
A/C.6/66/SR.26 (7 December 2011) 13, para 66 (Belgium) and 15, para 78 (Austria); UN Doc A/
C.6/66/SR.27 (8 December 2011) 3, para 9 (China), 4, para 24 (Sri Lanka), 6, para 40 (Belarus), 7,
para 45 (Iran), 9–10, para 66 (Russia), 10–11, para 72 (Portugal), 11–12, para 79 (India), and 13, para
87 (New Zealand); UN Doc A/C.6/66/SR.28 (2 December 2011) 3, para 10 (UK), 5, para 22 (Israel),
6, para 29 (Singapore), 7, para 35 ( Japan), 8–9, para 44 (Algeria), 10, para 52 (Kenya), 10, para 58
(Netherlands), and 12, para 65 (Romania).
64 It may be unnecessary but useful to recall that, according to the orthodox position enunciated in
Article 38(1)(d ) Statute of the International Court of Justice, decisions of the ICJ can constitute no
more than a subsidiary formal source of rules of international law.
and inviolability. The Court’s substitution of purposive logic for the search for state
practice and opinio juris has seemingly become the accepted methodology to this
end. The English magistrates’ courts have twice relied on the ICJ’s approach to
recognize the ersatz customary international immunity ratione personae from crim-
inal jurisdiction of a visiting minister for defence,65 a reliance and outcome
mirrored in dicta from the Swiss Federal Criminal Court66 and in the position
accepted in the abstract by the senior prosecuting magistrate of the Paris Court of
Appeal.67 One English magistrates’ court has done and found the same in respect of
a visiting minister for commerce and international trade.68 The ICJ’s reasoning in
Arrest Warrant has similarly framed the debate within the ILC and the Sixth
Committee as to which, if any, other state officials enjoy immunity ratione personae
from foreign criminal jurisdiction.69
At the same time, the ICJ’s reference in Arrest Warrant to holders of ‘high-
ranking office’ and its repeated assimilation of ministers for foreign affairs to heads
of state and heads of government has been taken as a cue by most that the
beneficiaries under customary international law of immunity ratione personae
from criminal jurisdiction and of inviolability are relatively few. For its part, a
Divisional Court of the High Court of England and Wales—recalling the ICJ’s
statements in both Arrest Warrant and Certain Questions of Mutual Assistance,70
considering ‘of note’ the Court’s ruling in the latter as to the head of national
security,71 highlighting Special Rapporteur Kolodkin’s reference to a ‘narrow circle’
of high-ranking officials,72 and believing that the Court’s words in Arrest Warrant
implied that in order to fall within this circle ‘it must be possible to attach to the
individual in question a similar status’ to that of a head of state or head of
government, these two office-holders being ‘the paradigm of those entitled to
such immunity’73—has held that the head of the executive office of the national
security council of a foreign state is not entitled to immunity ratione personae from
criminal jurisdiction.74 More generally, the Swiss Federal Criminal Court has
recalled that, ‘[i]n the Yerodia case, the ICJ specified that it was high-ranking
65 Re Mofaz (2004) 128 ILR 709, 711–12 mistakenly referring throughout to ‘State immunity’); Re
Barak City of Westminster Magistrates’ Court, 29 September 2009, unreported.

66 See A v Ministère public de la Confédération (n 18) para 5.4.2.
67 Procureur Général (Cour d’Appel de Paris), correspondence reference 2007/09216/SGE,
28 February 2008. The case ultimately implicated the immunity ratione materiae of a former US
Secretary of Defense, but the Public Prosecutor relied on Arrest Warrant, and indeed on the practice of
the UK magistrates’ courts, to assert that a serving Secretary of Defense would be entitled to the
immunity ratione personae recognized by the ICJ.
68 Re Bo Xilai (2005) 128 ILR 713, 714.
69 As regards the ILC, see eg Kolodkin, Preliminary Report (n 21) 60–3, paras 117–21; Report of
the Sixtieth Session (n 40) 334, para 290; Report of the Sixty-Fourth Session (n 60) 100, para 116. As
regards the Sixth Committee, see nn 63 and 77.
70 Khurts Bat v Investigating Judge of the German Federal Court (2011) 147 ILR 633, 652–53, paras
56–8.
71 Khurts Bat (n 70) 653, para 58. 72 Khurts Bat (n 70) 653, para 59.
73 Khurts Bat (n 70) 653, para 59. 74 Khurts Bat (n 70) 653, para 61.
representatives who benefit’ from immunity ratione personae.75 Similarly, the talk
within the ILC76 and the Sixth Committee77 in the context of the former’s work on
the immunity of state officials has consistently been of ‘high-ranking’, ‘high-level’,
and ‘senior’ officials and posts, with reference being made repeatedly to the ICJ’s
Judgments in Arrest Warrant and Certain Questions of Mutual Assistance.
In the end, it seems that precisely which state officials satisfy both the functional
criterion and the apparent criterion of rank will come down to the preponderance
of state practice and opinio juris on point. In other words, while the ICJ has
provided the logical substrate and a potent catalyst to the development of the
law, in the final analysis the international legal availability of immunity ratione
personae from criminal jurisdiction and of inviolability will be a product of the
formally orthodox customary lawmaking process.
3.1.1.2 An international crimes exception?

What was ultimately at issue in Arrest Warrant was whether an exception existed
under customary international law to immunity ratione personae from foreign
criminal jurisdiction and to inviolability from foreign measures of personal con-
straint when the allegations against the state official were of war crimes and crimes
against humanity. The embryonic state practice of direct relevance had been mixed
to that point, although the tendency had been to uphold immunity ratione
personae. On the one hand, Belgium had abrogated by statute what were otherwise
internationally recognized immunities, both ratione personae and ratione materiae,
from criminal jurisdiction when the proceedings related to war crimes, crimes
against humanity, and genocide.78 On the other hand, the Spanish courts had
dismissed on immunity grounds three separate private applications for the prosecu-
tion for international crimes of a serving head of state;79 four of the UK’s Law Lords
had remarked obiter in Pinochet (No 3) that a serving head of state could rely on
immunity ratione personae as a bar to prosecution in a foreign court for the crime of
75 A v Ministère public de la Confédération (n 18) para 5.3.1, author’s translation. The reference to
‘the Yerodia’ case is to Arrest Warrant, Abdoulaye Yerodia Ndombasi being the name of the Congolese
Minister for Foreign Affairs at the centre of the case.
76 See eg Kolodkin, Preliminary Report (n 21) 43, para 90; ILC, Report of the Sixtieth Session (n 40)
334, para 290; Kolodkin, Second Report (n 62) 20–1, paras 35 and 37; Escobar Hernández, Preliminary
Report (n 62) 8, para 33 and 14, para 62.
77 See eg ILC, Report of the Sixtieth Session (n 24) 20, paras 102–3; UN Doc A/C.6/66/SR.27
(n 63) 3, para 9 (China), 4, para 24 (Sri Lanka), and 9–10, para 66 (Russia); A/C.6/66/SR.28 (n 63) 3,
para 10 (UK), 5, para 22 (Israel), 6, para 29 (Singapore), 7, para 35 (Japan), 10, para 52 (Kenya), and
12, para 65 (Romania).
78 See Law of 15 June 1993 on the punishment of grave breaches of the Geneva Conventions of
12 August 1949 and their Additional Protocols I and II of 18 June 1977, as amended by the Law
of 10 February 1999 on the punishment of grave breaches of international humanitarian law,
art 5(3).
79 See Hassan II, Audiencia Nacional (Central Examining Magistrate No 5) 23 December 1998;
Obiang Nguema et al, Audiencia Nacional (Central Examining Magistrate No 5) 23 December 1998;
Castro, Audiencia Nacional (Plenary) 4 March 1999.
torture embodied in the Torture Convention;80 the French Court of Cassation had
upheld the immunity ratione personae of a serving foreign head of state in private
criminal proceedings alleging the offence of aircraft sabotage provided for in the
Convention for the Suppression of Unlawful Acts against the Safety of Civilian
Aircraft;81 and in 2001 the Danish prosecuting authorities had rejected a private
application for the prosecution of a foreign ambassador alleged to have been
responsible in a former capacity for the crime of torture within the meaning of
the Torture Convention.82
But what was in many ways more significant was the temper of the times. In the
wake of the celebrated successive decisions of the House of Lords in 1998 and 1999
in the Pinochet proceedings83 and of a brusque dictum of the District Court of
Amsterdam in 2000 in the Bouterse case84 (all three on the distinct question of
immunity ratione materiae as a bar to prosecution for international crimes), a
progressive triumphalism, an atmosphere of Whig-historical inevitability, led
many to imagine that it was only a matter of time before what was billed as
yesteryear’s horizontal, atomistic international law of mutual non-interference,
with its fusty privileging of the jurisdictional immunities owed by one state to
another, made way for a modern, vertical, collectivist international law in which, in
the fight against impunity for serious crimes of international concern, states acted
through their courts as ‘agents of the international community’.
In the event, the ICJ rained on this millennial parade. Having, avowedly,
‘carefully examined State practice, including national legislation and those few
decisions of national higher courts, such as the House of Lords or the French
Court of Cassation’, the Court declared itself ‘unable to deduce from this practice
that there exists under customary international law any form of exception to the
rule according immunity from criminal jurisdiction and inviolability to incumbent
Ministers for Foreign Affairs . . . where they are suspected of having committed war
crimes and crimes against humanity’.85 The Court added:
80 See R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) (1999)
119 ILR 135 (UKHL), 197–8 (Lord Hope), 220 (Lord Saville), 231 (Lord Millett), and 243 (Lord
Phillips), the last referring to all crimes subject to treaty-based mandatory universal jurisdiction. The
reference to the ‘Torture Convention’ is to the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 112.
81 See Gaddafi (2001) 125 ILR 490 (Fr CoC), 509. The reference is to the Convention for the
Suppression of Unlawful Acts against the Safety of Civilian Aircraft, 23 September 1971, 974 UNTS
177.
82 See J Hartmann, ‘The Gillon Affair’ (2005) 54 ICLQ 745.
83 See R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 1) (1998)
119 ILR 50 (UKHL), which was annulled on grounds unrelated to the merits, and Pinochet (No 3)
(n 80). The proceedings, although for extradition, focused on whether the immunity ratione materiae
from which serving and former state officials otherwise benefit under customary international law in
respect of acts performed in their official capacity served to shield them from foreign prosecution for an
international crime. As it transpired, Pinochet (No 3) turned on the far narrower point of the availability
of immunity ratione materiae as a bar to prosecution specifically for the crime of torture within the
meaning of and pursuant to the Torture Convention.
84 See Wijngaarde et al v Bouterse (2000) 3 YIHL 677 (District Court of Amsterdam, 20 November
2000), 687–88, para 4.2.

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

88 See the courts of Belgium (Re Sharon and Yaron (n 57) 123, involving a head of government and
allegations of genocide, crimes against humanity, and grave breaches of the Fourth Geneva Conven-
tion; and complaints, alleging a range of international crimes, against Cuban President Fidel Castro,
Iraqi President Saddam Hussein, Ivorian President Laurent Gbagbo, Mauritanian President Maaouya
Ould Sid’Ahmed Taya, Rwandan President Paul Kagame, President of the Central African Republic
Ange-Félix Patassé, President of the Republic of Congo Denis Sassou Nguesso, and President of the
Palestinian Authority Yasser Arafat); France (complaint against President Mugabe of Zimbabwe in
2003 alleging torture); the Netherlands (The Hague City Party and others v Netherlands ILDC 849 (NL
2005), involving a head of state and allegations of aggression and grave breaches of the Geneva
Conventions; and a complaint against President Yudhoyono of Indonesia in 2010 alleging various
international crimes); Spain (Castro Audiencia Nacional (Plenary) 13 December 2007 (Spain),
involving a head of state and allegations of genocide; and Rwanda Audiencia Nacional (Central
Examining Magistrate No 4) 6 February 2008 (Spain), involving a head of state and alleged aircraft
sabotage); and the UK (Tatchell v Mugabe (2004) 136 ILR 572 (Eng MagCt), involving a head of state
and alleged torture; Re Mofaz (n 65), involving a minister for defence and alleged grave breaches of the
torture the immunity ratione personae from the criminal jurisdiction of the
receiving state from which a representative of the sending state in a special mission
benefits under customary international law.89 For its part, in its study on the
immunity of state officials from foreign criminal jurisdiction, the UN Secretariat
referred to the view ‘prominently held by the International Court of Justice in the
Arrest Warrant case’ as ‘the majority view’.90 Similarly, the ILC’s first special
rapporteur spoke unhesitatingly of ‘the prevailing view . . . upheld by the Inter-
national Court of Justice in the Arrest Warrant and Certain Matters of Mutual
Assistance in Criminal Matters cases’,91 and, while not every member of the
Commission has proved happy with the first special rapporteur’s ‘strict lex lata
perspective’,92 few have denied the lex lata outright.93 Finally, in their reactions to
date to the ILC’s work, only a handful of governments have demurred from the
Court’s position.94
To the extent that the ICJ was again preaching largely to the converted, and
especially insofar as what it did in abstract normative terms was merely to affirm the
continuing integrity of the (supposedly) existing rule in favour of immunity, rather
than to posit its displacement in part, it would be inaccurate to view the Court’s
formal legal role in this regard as more than declaratory. In ‘real world’ terms,
however, through the certainty it has imposed on the law and the institutional
respectability it has cast over what critics condemn as sordid raison d’Etat, the Court
has been decisive in shoring up and buttressing the defences of immunity ratione
personae.
3.1.1.3 The content of immunity ratione personae and inviolability

In Arrest Warrant, the ICJ asserted that ‘immunity and . . . inviolability protect the
individual concerned against any act of authority of another State which would
Fourth Geneva Convention; Re Barak (n 65), ditto; and Re Bo Xilai (n 68) 714, involving a minister for
overseas trade and development and alleged torture).
89 See Re Bo Xilai (n 68) 714–15, re allegations of torture; Re Barak (n 65), re allegations of grave
breaches; Re Gorbachev (n 23), re allegations of torture.

90 Immunity of State Officials. Memorandum by the Secretariat (n 20) 58, para 92.
91 Kolodkin, Second Report (n 62) 30, para 55. See also Kolodkin, Third Report (n 21) 27, para
45, in specific relation to the Court’s rejection of arguments based on treaties mandating universal
jurisdiction and aut dedere aut judicare.
92 ILC, Report of the Sixty-Third Session (n 60) 221, para 118. See also, generally, ILC, Report of
the Sixty-Third Session (n 60) 221–4, paras 117–31 and 233, para 178.
93 See eg ILC, Report of the Sixty-Fourth Session (n 60) 100, para 117 (‘The occasional mention
that there may be exceptions to immunity from foreign criminal jurisdiction for persons enjoying
immunity ratione personae was questioned by some members as having no basis in customary
international law.’)
94 Indeed, see ILC, Report of the Sixtieth Session (n 24) 21, para 109 (‘It was . . . suggested that
the Commission should determine the scope of immunity and possible exceptions to it on the basis
of the jurisprudence of the International Court of Justice.’) But cf ILC, Report of the Sixtieth
Session (n 24) 21, para 107 (‘Some delegations affirmed that there was an exception to immunity
in case of serious international crimes.’).
hinder him or her in the performance of his or her duties’.95 This potentially very
far-reaching statement was reiterated and applied to the head of state in Certain
Questions of Mutual Assistance,96 where the Court continued that ‘the determining
factor in assessing whether or not there has been an attack on the immunity’—by
which was meant both the immunity from jurisdiction and the inviolability97—‘of
the Head of State lies in the subjection of the latter to a constraining act of
authority’.98 Applying this later dictum, the Court ruled in the second case that a
foreign criminal court’s issue, in relation to a state official, of a summons to appear
as witness did not violate the immunity from jurisdiction owed in respect of that
official when the summons represented not a measure of constraint but merely
an invitation to testify that the official could freely accept or decline.99 This was
a fortiori the case as regards a summons that expressly sought the official’s consent.100
The ICJ’s statements and rulings have formed the backbone of discussion of the
content of immunity from foreign criminal jurisdiction and inviolability from
foreign measures of constraint in the UN Secretariat’s preliminary study on the
immunity of state officials from foreign criminal jurisdiction,101 in the reports of
the ILC’s special rapporteurs on the topic,102 and in the Sixth Committee.103 At the
same time, both the generality of the Court’s formulations and the specificities of
the cases it has been called on to adjudicate have meant that, although its statements
are treated as central to the debate, their ‘full effect . . . on national laws providing for
the prosecution of foreign State officials remains unclear’.104 In particular, differing
views have been expressed in the context of the ILC’s work as to whether the
Court’s reliance in Certain Questions of Mutual Assistance on the notion of ‘a
constraining act of authority’ would mean that the mere opening of a criminal
investigation into the acts of a foreign state official would violate the immunity from
jurisdiction and/or inviolability owed in respect of that individual.105
Moreover, although the Court has indicated, albeit in very general terms, what is
prohibited by immunity from criminal jurisdiction and inviolability from measures
of personal constraint when taken together, its reluctance in Arrest Warrant to

96 See Certain Questions of Mutual Assistance (n 4) para 170.
97 See the immediately preceding sentence in Certain Questions of Mutual Assistance (n 4) para 170,
where the Court, quoting from Arrest Warrant (n 3) para 54, refers more comprehensively to the ‘ “full
immunity from criminal jurisdiction and inviolability” which protects [the head of State] “against any
act of authority of another State which would hinder him or her in the performance of his or her
duties” ’.
101 See Immunity of State Officials. Memorandum by the Secretariat (n 20) 151–3, paras 235–6
and 155–61, paras 240–5.

102 See Kolodkin, Second Report (n 62) 22–7, paras 40–51.
103 See eg UN Doc A/C.6/66/SR.26 (n 63) 5, para 17 (Switzerland).
104 Immunity of State Officials. Memorandum by the Secretariat (n 20) 158–61, paras 242–5.
105 Compare, for example, Immunity of State Officials. Memorandum by the Secretariat (n 20)
158–61, paras 242–5 with Kolodkin, Second Report (n 62) 23–5, paras 41–3 and UN Doc A/C.6/66/
SR.26 (n 63) 5, para 17 (Switzerland).
specify what was implicated by immunity from jurisdiction and inviolability

respectively has sowed the seeds of uncertainty. When it came in that case to
whether the mere issue and international circulation of a warrant for the arrest of a
state official—as distinct from, on the one hand, the official’s prosecution and trial
and, on the other, his or her actual arrest—was an issue going to immunity from
jurisdiction or to inviolability or to both, the Court hedged it bets.106 It con-
cluded that the issue of the arrest warrant by the Belgian prosecuting authorities
‘failed to respect the immunity of [the] Minister and, more particularly, infringed
the immunity from criminal jurisdiction and the inviolability then enjoyed by
him under international law’;107 that the circulation of the warrant by Belgium
‘failed to respect the immunity of the incumbent Minister for Foreign Affairs of
the Congo and, more particularly, infringed the immunity from criminal jurisdic-
tion and the inviolability then enjoyed by him under international law’;108 and
that ‘the issue and circulation of the arrest warrant of 11 April 2000 by the
Belgian authorities failed to respect the immunity of the incumbent Minister for
Foreign Affairs of the Congo and, more particularly, infringed the immunity from
criminal jurisdiction and the inviolability then enjoyed by [him] under inter-
national law’.109 The Court similarly went on to find in the dispositif that ‘the
issue . . . of the arrest warrant of 11 April 2000, and its international circulation,
constituted violations of a legal obligation of the Kingdom of Belgium towards the
Democratic Republic of the Congo, in that they failed to respect the immunity
from criminal jurisdiction and the inviolability which the incumbent Minister for
Foreign Affairs of the Democratic Republic of the Congo enjoyed under inter-
national law’.110
Insofar as a serving state official may benefit under international law from both
immunity ratione personae and, as appears invariably to accompany it, inviolability,
the question of the line between the two concepts is academic. Insofar, however, as
a serving or former state official may benefit from only immunity ratione materiae,
and to the extent that it remains uncertain whether immunity ratione materiae is
accompanied in its application to individuals by their personal inviolability, the
problem is of practical significance. The UN Secretariat, highlighting the dissenting
opinion of Judge ad hoc Van den Wyngaert in the case,111 noted the imprecision
106 In Certain Questions of Mutual Assistance, on the other hand, the Court was tolerably clear in
treating a summons to appear as witness as going to immunity from jurisdiction. See Certain Questions
of Mutual Assistance (n 4) paras 171 and 179. This seems correct. For example, Article 31, paragraph 2
VCDR, which provides that ‘[a] diplomatic agent is not obliged to give evidence as a witness’, appears
in Art 31 alongside provisions dealing with the immunity of a diplomatic agent from the criminal and
civil jurisdiction of the receiving state (para 1) and from measures of execution in that state (para 3), as
well as a provision specifying that the immunity of a diplomatic agent from the jurisdiction of the
receiving state ‘does not exempt him from [that] jurisdiction’ (para 4). Conversely, no prohibition on
compelling a diplomat to give evidence as a witness is found in Article 29 VCDR, which states in its
first sentence that ‘[t]he person of a diplomatic agent shall be inviolable’ and in its second that a
diplomatic agent ‘shall not be liable to any form of arrest or detention’.
109 Arrest Warrant (n 3) para 75. 110 Arrest Warrant (n 3) para 78(2).
111 See Arrest Warrant (n 3), Dissenting Opinion of Judge Van den Wyngaert, 179, para 75.
attendant upon the Court’s omnibus references in Arrest Warrant to ‘immunity
from jurisdiction and inviolability’,112 although the ILC’s first special rapporteur
was less attuned to this nuance.113
3.1.2 Immunity ratione materiae

The immunity ratione materiae of serving and former state officials from the
criminal jurisdiction of the courts of another state has not yet fallen for determin-
ation by the ICJ. But this has not prevented the Court from pronouncing on the
question in passing. The most significant of these dicta, an interventionist state-
ment in Arrest Warrant with obvious implications for any alleged exception to
immunity ratione materiae in respect of international crimes, has to some extent
had its desired effect on state practice, even if it has failed to sweep all before it. The
most recent of the Court’s statements, in Jurisdictional Immunities, will most likely
have an even greater impact.
3.1.2.1 The nature of immunity ratione materiae from foreign

criminal jurisdiction
At the level of abstract principle, the Court implied in both Certain Questions of
Mutual Assistance114 and Jurisdictional Immunities115 that the immunity ratione
materiae from foreign criminal jurisdiction from which serving and former state
officials benefit under customary international law is, in conceptual terms, a
manifestation of state immunity—that is, a function of the immunity from the
jurisdiction of the courts of another state of the official’s state itself (of which the
official, when acting in that capacity, comprises a part) and, as such, based on
the corollary of the sovereign equality of states summed up in the maxim par in
parem non habet imperium. This characterization, while in line with the orthodox
understanding of state officials’ immunity ratione materiae from foreign criminal
jurisdiction, is not insignificant, rendering as it does at least formally untenable the
suggestion that so-called ‘functional immunity’ from foreign criminal jurisdiction is
a sui generis species of immunity.116 It was adopted by the ILC’s first special
rapporteur on the immunity of state officials from foreign criminal jurisdiction,117
and has not been disputed by states.
112 See Immunity of State Officials. Memorandum by the Secretariat (n 20) 151–2, para 235.
113 See Kolodkin, Second Report (n 62) 22–3, para 40.
114 See Certain Questions of Mutual Assistance (n 4) paras 188, 191, and 193.
116 See eg A Cassese, ‘When May Senior State Officials be Tried for International Crimes?
Some Comments on the Congo v Belgium Case’ (2002) 13 EJIL 853, 862; R Van Alebeek, The
Immunity of States and Their Officials in International Criminal Law and International Human
Rights Law (Oxford: OUP, 2008), ch 3; D Akande and S Shah, ‘Immunities of State Officials,
International Crimes, and Foreign Domestic Courts’ (2011) 21 EJIL 815, 826–7.
117 See Kolodkin, Second Report (n 62) 12–13, para 23.
3.1.2.2 The scope of immunity ratione materiae from foreign

criminal jurisdiction
Of more practical significance, the Court in Arrest Warrant, in a gratuitous and no
doubt carefully conceived dictum, went out of its way to refer to the scope of the
immunity ratione materiae enjoyed by former ministers for foreign affairs. Dismiss-
ing the hypothetical objection that the absolute immunity ratione personae of
serving ministers for foreign affairs amounted to impunity in respect of any crimes
they may have committed, the Court, having observed that ‘after a person ceases to
hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of
the immunities accorded by international law in other States’,118 continued:
Provided that it has jurisdiction under international law, a court of one State may try a
former Minister for Foreign Affairs of another State in respect of acts committed prior or
subsequent to his or her period of office, as well as in respect of acts committed during that
period of office in a private capacity.119
With the limitation of the lawful scope of prosecution to acts committed ‘in a
private capacity’, the Court does two things.
First, the Court appears to imply a contrario that, in contrast to the situation in
relation to civil proceedings, the immunity ratione materiae—or state immunity—
that may serve to bar foreign criminal proceedings against any current or former
state official is not circumscribed by the distinction between acts performed in an
official capacity which can be characterized as exercises of sovereign authority (acta
jure imperii) and acts which, although performed in an official capacity, are the sort
of thing a private person could do (acta jure gestionis), insofar as the distinction
could have logical purchase in the criminal context in the first place. Rather, such
immunity extends to all acts performed by state officials in their official (or ‘public’)
capacity, meaning in their capacity as state officials. The same was similarly implied
in Certain Questions of Mutual Assistance when the Court ‘observe[d] that it ha[d]
not been “concretely verified” before it that the acts which were the subject of the
summonses as témoins assistés issued by France were indeed acts within the scope of
[the relevant officials’] duties as organs of State’.120
Secondly, and more crucially, in its dictum in Arrest Warrant the Court appears
by implication to reject the argument that immunity ratione materiae is unavailable
as a procedural bar to the prosecution of a serving or former state official for an
international crime allegedly committed by that official in anything other than a
private capacity. This rejection goes hand-in-hand with the Court’s earlier pro-
nouncement in which it stresses that, ‘although various international conventions
on the prevention and punishment of certain serious crimes impose on states
obligations of prosecution or extradition [and] require[e] them to extend their
criminal jurisdiction’, this ‘in no way affects immunities under customary inter-
national law, including those of Minister for Foreign Affairs’, which ‘remain
opposable before the courts of a foreign State, even where those courts exercise such
a jurisdiction under these conventions’121—the reference to ‘immunities under
customary international law’ being pointedly general, not restricted to the immun-
ity ratione personae of a serving minister for foreign affairs at immediate issue in the
case. Both statements are directed squarely at Pinochet (No 3), in which a majority
of the House of Lords reasoned that the definition of the crime of torture for the
purposes of the Torture Convention combined with the obligations undertaken by
the Convention’s states parties both to extend universal jurisdiction over the crime
and to submit cases of suspected torture to their competent authorities for the
purpose of prosecution meant that immunity ratione materiae could not, as a matter
of logic, pose a bar to the prosecution of a former head of state on a charge of
torture pursuant to the Convention. Additionally, the Court’s considered reference
to the unavailability of residual immunity ratione materiae in respect of acts
performed ‘in a private capacity’—rather than to the continuing existence of
immunity in respect of acts performed in an official capacity or ‘official acts’,
both of which might have been read down to exclude acts under mere colour of
officialdom—takes careful aim at the broader ratio of the Lords’ quashed decision
in Pinochet (No 1), as made popular by activists and as effectively relied on by the
Court of Appeal of Amsterdam in Bouterse when it stated that ‘the commission of
very grave criminal offences of this kind’ (in that case torture within the meaning of
the Torture Convention, war crimes, and crimes against humanity) ‘cannot be
regarded as part of the official duties of a head of state’.122
The Court’s implicit rejection of an exception in respect of either international
crimes generally or the crime of torture pursuant to the Torture Convention to the
immunity ratione materiae from foreign criminal proceedings of a serving or former
state official has proved influential. In 2005, basing his decision expressly on Arrest
Warrant (although seeming to conflate immunity ratione personae and immunity
ratione materiae), the German federal prosecutor refused to open an investigation
into allegations of crimes against humanity committed while in office by the former
head of a foreign state, arguing that the ICJ’s Judgment, which the prosecutor said
dealt with both present and former ministers for foreign affairs, affirmed ‘a well
recognized rule in international law grant[ing] immunity from criminal prosecution
by other states to present and former heads of government and heads of state’, even
‘if these officials are prosecuted for international crimes’.123 Similarly, in late 2007,
the prosecuting magistrate of the Tribunal de Grande Instance of Paris announced
that he would not investigate a complaint filed with him alleging that former US
Secretary of Defense Donald Rumsfeld had ordered and authorized torture. He
stated:
[T]he Ministry of Foreign Affairs has indicated that, applying the rules of customary
international law, as affirmed by the International Court of Justice, the immunity from
121 Arrest Warrant (n 3) para 59. 122 Wijngaarde v Bouterse (n 84) 687–8, para 4.2.
123 Generalbundesanwalt beim Bundesgerichsthof, correspondence reference 3 ARP 654/03—2,
26 June 2005, para I, translation from Amnesty International, Germany: End Impunity Through
Universal Jurisdiction, No Safe Haven Series No 3, EUR 23/003/2008, 72.
criminal jurisdiction of heads of State and of government and of ministers for foreign affairs
continues to subsist, after their office comes to an end, in respect of acts performed in their
official capacity and that, as former Secretary of Defense, Mr Rumsfeld should benefit by
extension from the same immunity in respect of acts performed in the exercise of his
office.124
The senior prosecuting magistrate of the Paris Court of Appeal rejected a challenge
to the dismissal of the complaint, emphasizing that the ICJ had indicated in Arrest
Warrant that the immunity of high-ranking officers of state was lost on completion
of their term of office only in respect of acts performed before or after their term of
office and in respect of acts performed while in office that were unrelated to that
office.125
But not all relevant actors have taken the ICJ’s dictum in Arrest Warrant to
exclude without exception the abrogation of the immunity ratione materiae of a
serving or former foreign state official in the face of prosecution for an international
crime. In 2008, the Italian Court of Cassation held in Lozano, without even
alluding to the ICJ’s dictum in Arrest Warrant, that state immunity poses no bar
to prosecution for those international crimes, such as the war crimes alleged in that
case, which are said to violate norms of jus cogens.126 In 2009, the Institut de Droit
international, in its resolution entitled ‘Immunity from Jurisdiction of the State and
of Persons Who Act on Behalf of the State in case of International Crimes’, posited
in Article III(1) that ‘[n]o immunity from jurisdiction other than personal immun-
ity in accordance with international law applies with regard to international
crimes’.127 In 2011, Belgium declared its view in the Sixth Committee ‘that de
lege lata, crimes that violated international treaties or international customary law
gave rise to exclusion from immunity ratione materiae’,128 while Singapore stated
that ‘existing sources of international law certainly provided for exceptions’ as
regards ‘the question of which crimes were or should be excluded from immunity
ratione materiae’.129 Austria and the Netherlands argued for the same position de
lege ferenda.130 Most recently, in July 2012, the Swiss Federal Criminal Court in
A v Ministère public de la Confédération, while acknowledging the Court’s words in
Arrest Warrant on the immunity of a former minister for foreign affairs, preferred—
in addition to taking a rose-tinted view of responses to the work of the ILC’s first
124 Procureur de la République (Tribunal de Grande Instance de Paris, Cour d’Appel de Paris),
correspondence reference AS/2007/3350/A4/JCM/FC/ALM, 16 November 2007, author’s transla-

tion.
125 See Procureur Général (n 67).
126 See Lozano ILDC 1085 (IT 2008) para 6. The Court of Cassation eventually upheld immunity
on other grounds.
127 Institut de Droit international, Naples session (2009), ‘Resolution on the Immunity from
Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes’,
<http://www.idi-iil.org/idiE/resolutionsE/2009_naples_01_en.pdf> (accessed 17 May 2013).
128 UN Doc A/C.6/66/SR.26 (n 63) 14, para 67. See also para 14, 69 (Belgium).
129 UN Doc A/C.6/66/SR.28 (n 63) 6, para 30.
130 See A/C.6/66/SR.26 (n 63) 16, para 79 (Austria) (‘persons enjoying functional immunity could
not, in principle, invoke immunity for such crimes’) and UN Doc A/C.6/66/SR.28 (n 63) 11, para 59
(Netherlands) (‘immunity ratione materiae should not be granted for serious international crimes’,
stating that, as a matter of lex lata, ‘international law in the matter was insufficiently clear’).
special rapporteur on the immunity of state officials131—to recall, with striking
creativity, that, ‘[i]n the same judgment, the ICJ equally underlined that the
immunity from jurisdiction that a serving minister for foreign affairs enjoys does
not mean that he benefits from impunity in respect of crimes he may have
committed, whatever their gravity’.132 The Federal Criminal Court went on to
abrogate the immunity ratione materiae of a former minister of defence of a foreign
state in respect of allegations of war crimes.133
In implicit response to Lozano and like reasoning in the criminal context, the ICJ
in Jurisdictional Immunities—while posting the formal caveat that it was ‘addressing
only the immunity of the State itself from the jurisdiction of courts of other States’,
since ‘the question whether, and if so to what extent, immunity might apply in
criminal proceedings against an official of the State [was] not in issue’ in the
case134—recalled:
In Arrest Warrant, the Court held, albeit without express reference to the concept of jus
cogens, that the fact that a Minister for Foreign Affairs was accused of criminal violations of
rules which undoubtedly possess the character of jus cogens did not deprive the Democratic
Republic of the Congo of the entitlement which it possessed as a matter of customary
international law to demand immunity on his behalf.135
More generally, although again speaking directly of the immunity from civil
proceedings of the state sued as such, the Court highlighted in Jurisdictional
Immunities a perceived fatal flaw in what it characterized as gravity-based normative
arguments against the availability of immunity from foreign jurisdiction, namely
that such arguments are premised on a consideration of the merits of the case,
whereas the barring of consideration of the merits is the essence of immunity.136
It is unlikely that a preponderance of national courts and other relevant actors
will fail to recognize as a blanket dismissal of jus cogens-based arguments against
immunity from foreign criminal jurisdiction the Court’s characterization in Juris-
dictional Immunities of its earlier decision in Arrest Warrant.137 It is true that Arrest
131 See A v Ministère public de la Confédération (n 18) para 5.3.6.

132 A v Ministère public de la Confédération (n 18) para 5.3.3.
133 See A v Ministère public de la Confédération (n 18) paras 5.4.3 and 5.5.
134 The distinction was one of the reasons the Court in Jurisdictional Immunities (n 5) para 87
considered irrelevant the House of Lords’ decision in Pinochet (No 3) (n 80), the other being that the
decision turned on the language of the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, 1465 UNTS 85.
135 Jurisdictional Immunities (n 5) para 95, reference omitted.
136 Jurisdictional Immunities (n 5) para 82. For the full quotation, see text accompanying n 198.
137 Indeed, the UK House of Lords, in the civil case of Jones v Saudi Arabia (n 19) 726–7, para 24
(Lord Bingham) and, more clearly, 734, paras 48–9 (Lord Hoffmann), had already read Arrest Warrant
as a denial of the a priori logic that deemed jurisdictional immunity incompatible with jus cogens. That
said, six months after the ICJ’s Judgment in Jurisdictional Immunities, the Swiss Federal Criminal
Court in A v Ministère public de la Confédération (n 18), esp paras 5.3.4, 5.3.5, and 5.4.3, referring in
passing to the putative jus cogens status of the international criminal prohibitions in question, denied
immunity ratione materiae to a former minister for defence of a foreign state accused of war crimes. But
the decision of the Ministère public de la Confédération challenged before the Federal Criminal Court
predates the ICJ’s Judgment, as do all the pleadings in the challenge bar the réplique (two days after the
ICJ’s Judgment) and the duplique (two months later), neither of which could by that point have
Warrant itself pertained to immunity ratione personae; but it is significant that the
Court relied on it in Jurisdictional Immunities to dismiss jus cogens-based arguments
against state immunity (with the immediate context of civil proceedings against the
State eo nomine representing no more than a formal distinction). Indeed, the ILC’s
new special rapporteur on immunity of state officials from foreign criminal juris-
diction indicated in her preliminary report that the Court’s Judgment in Jurisdic-
tional Immunities ‘deserves special consideration because [of] some of its
methodological elements’, ‘whose potential implications for the immunity of
State officials from foreign criminal jurisdiction the Commission should con-
sider’.138 Members of the Commission agreed.139
3.2 State immunity and civil claims for death or personal injury
In Jurisdictional Immunities, the ICJ was asked to rule on an issue every bit as
politically and legally controversial as the subject of Arrest Warrant, namely the
scope of the immunity to which a state was entitled under customary inter-
national law from civil proceedings in a foreign court in respect of intentional
acts by that state causing death or personal injury to the claimant’s next-of-kin
or to the claimant. Two legal questions were in dispute. The first related to the
scope of the so-called ‘territorial tort’ exception to state immunity from foreign
civil proceedings. The second, more emotive inquiry was whether there existed
an exception to state immunity from foreign civil proceedings where the claim-
ant alleged serious violations of international humanitarian law or international
human rights law or of peremptory norms of general international law (jus cogens).
The Court answered both questions in orthodox, indeed exemplary fashion, on the
basis of a detailed survey and weighing of state practice and opinio juris, backed up
on the second point by a consideration of first principles. Its Judgment is almost
certain to have a determinative impact on the future course of customary inter-
national law.
incorporated the ICJ’s jurisprudence. See A v Ministère public de la Confédération (n 18) paras F to
H. Moreover, the Federal Criminal Court’s decision appears ultimately premised on an official
statement by the Swiss legislature when adopting Switzerland’s law implementing the Rome Statute
of the International Criminal Court that the law was intended ‘to ensure the unwavering repression’ of
genocide, crimes against humanity, and war crimes. This led the Federal Criminal Court to reason,
para 5.4.3, author’s translation: ‘[I]t would be contradictory and pointless if at the same time, on the
one hand, one were to affirm the desire to combat these grave violations of humanity’s fundamental
values and, on the other, if one were to concede a broad interpretation of the rules of functional
immunity (ratione materiae) to the benefit of former rulers or officials, the concrete result of which
would be to prevent, ab initio, any opening of an investigation. . . . Such a situation would be
paradoxical, and the criminal-law policy that the legislator wanted to implement would be destined
to remain a dead letter in nearly every case. This is not what [the legislator] wanted. It flows from this in
the present case that the applicant ought not to benefit from any immunity ratione materiae.’
138 Escobar Hernández, Preliminary Report (n 62) 11, para 49.
139 See ILC, Report of the Sixty-Fourth Session (n 60) 96, para 100, 97–8, para 106, and 101–2,
paras 127–31.
3.2.1 The ‘territorial tort’ exception

3.2.1.1 Background
Article 11 of the European Convention on State Immunity (‘ECSI’),140 the first
binding embodiment of the ‘territorial tort’ exception at either the international or
national level, provides, in terms capable of applying to harm inflicted in the
exercise of sovereign authority (‘jure imperii’):
A Contracting State cannot claim immunity from the jurisdiction of a court of another
Contracting State in proceedings which relate to redress for injury to the person or damage
to tangible property, if the facts which occasioned the injury or damage occurred in the
territory of the State of the forum, and if the author of the injury or damage was present in
that territory at the time when those facts occurred.141
Similarly, such national state immunity statutes as exist, all bar one of which
include an exception to the same effect,142 premise the resultant exercise of
jurisdiction over the foreign state not on the character of the act at issue in the
proceedings but solely on some nexus with the territory of the forum state,
usually143 in the form of the place of commission of, or of the failure to perform,
the relevant act. What is more, the US and Canadian courts have expressly held that
the ‘territorial tort’ exception as statutorily embodied is without regard to the
distinction between acta jure gestionis and acta jure imperii.144 All of this led
Greece’s Court of Cassation (Areios Pagos), in a case involving the conduct of
foreign armed forces in international armed conflict, to hold in 2002, ‘by way of
exception from the principle of immunity’,
that national courts may exercise international jurisdiction over claims for damages in
relation to torts committed against persons and property on the territory of the forum
State by organs of a foreign State present on that territory at the time of the commission of
these torts even if they resulted from acts of sovereign power (acta jure imperii).145
140 European Convention on State Immunity, 16 May 1972, 1495 UNTS 182.
141 See also, along analogous lines, draft article III(F) of the International Law Association’s Revised
Draft Articles for a Convention on State Immunity, International Law Association, Report of the Sixtieth-
Sixth Conference, held at Buenos Aires, Argentina, 14 to 20 August 1994 (1994), 21.
142 See SIA (UK), s. 5, enacted to give effect to ECSI, Art 11; FStIA (SA), s. 6; FStIA (Aus), s. 13;
SIA (Sing), s. 7; Act on the Immunity of Foreign States from the Jurisdiction of the Argentine Courts
1995 (Argentina), art 2(e); FSIL (Isr), s. 5; Act on the Civil Jurisdiction of Japan with respect to a
Foreign State, etc 2009 (‘ACJJFS ( Jpn)’), art 10.
143 But cf FSIA (US), s. 1605(a)(5) and SIA (Can), s. 6, both requiring only that the harm the
subject of the claim occur within the territory. The US courts, however, have consistently construed
section 1605(a)(5) of the FSIA (US) narrowly to require that both the harm and the causal act or
omission occur in US territory. In Canada, the Court of Appeal of Quebec took the opposite view in
relation to section 6 of the SIA (Can) in Hashemi v Iran (2012) QCCA 1449 (Quebec C of A),
para 66.
144 See Letelier v Chile (1980) 63 ILR 378, 386–7, as regards FSIA (US), s. 1605(a)(5); Schreiber v
Canada (Attorney General) 2002 SCC 62, paras 32 and 35–6, in relation to SIA (Can), s. 6.
145 Prefecture of Voiotia v Germany (Distomo Massacre Case) (2002) 129 ILR 513, 519 (2002). The
enforcement of the Judgment by the Italian courts was one of the triggers for Germany’s application to
the ICJ in Jurisdictional Immunities (n 5).
But the Greek Special Supreme Court (Anotato Eidiko Dikastirio) subsequently
rejected this view of the ‘territorial tort’ exception to state immunity, ruling that
in the present state of development of international law, there continues to exist a generally
accepted rule of international law according to which proceedings cannot be brought against
a foreign State before the courts of another State for compensation for an alleged tort
committed in the forum State in which the armed forces of the defendant State are alleged to
have participated either in a time of war or in a time of peace.146
Similarly, the Supreme Court of Germany (Bundesgerichtshof ) held the following
year that
the balance of considerations continues to militate against the assumption that a rule such as
Article 11 of the European Convention of 16 May 1972 is an expression of what has in the
meantime become customary international law ( . . . ). In any event, it does not cover
military action in wartime of the type at issue here [ . . . ]147
Moreover, several of the aforementioned state immunity statutes contain a provi-
sion to the effect that the statute does not apply to proceedings relating to anything
done by or in relation to the armed forces of a foreign state while present in the
territory of the forum state and/or does not affect the application of legislation
pertaining to visiting forces.148 The former proposition echoes Article 31 of the
ECSI, which, in a savings clause of significance to the effective scope of application
of Article 11, states:
Nothing in this Convention shall affect any immunities or privileges enjoyed by a Con-
tracting State in respect of anything done or omitted to be done by, or in relation to, its
armed forces when on the territory of another Contracting State.
Pursuant to such an exclusion under the common law, which was held to this
extent to incorporate customary international law, the UK courts held in 1995 and
2000 that a state remained immune from civil proceedings in respect of acts of jure
imperii performed by its armed forces in the forum state149—rulings with which
respective rulings of the Italian Court of Cassation in 2000150 and the Consti-
tutional Court of Slovenia in 2001151 squared. Similarly, speaking in 1995, the
Supreme Court of Ireland took the view that ‘[t]he terms of Article 31 [of the
ECSI] recognize that as a matter of international law immunities and privileges in
respect of anything done or omitted to be done by, or in relation to armed forces
when on the territory of another Contracting State, exist’.152 More generally, the
Irish court declared itself
146 Margellos v Germany (2002) 129 ILR 525, 533.

147 Greek Citizens v Germany (Distomo Massacre Case) (2003) 129 ILR 556, 561.
148 See SIA (UK), s. 16(2), enacted to give effect to ESCI, Art 31; SIA (Can), s. 16; FStIA (Aus),
s. 6; SIA (Sing), s. 19(2)(a); FSIL (Isr), s. 22.

149 See Littrell v US (No 2) (1995) 100 ILR 438, 460 and 463–4; Holland v Lampen-Wolfe (2000)
119 ILR 367.

150 See FILT-CGIL Trento v US (2000) 128 ILR 644.
151 See AA Up-13/99, 8 March 2001, paras 13–14.
152 McElhinney v Williams and Her Majesty’s Secretary of State for Northern Ireland (1995) 104 ILR
691, 701.
not satisfied that it is a principle of public international law that the immunity granted to
sovereign States should be restricted by making them liable in respect of tortious acts
committed on their behalf by their servant or agent causing personal injuries to the person
affected by such act or omission when such act or omission is committed jure imperii
[ . . . ]153
When the case went to Strasbourg, more significantly, a Grand Chamber of the
European Court of Human Rights—noting that, as it was, the recognition of a
‘territorial tort’ exception to a foreign state’s immunity from jurisdiction was ‘by no
means universal’—declared that ‘the present state of the development of inter-
national law’ did not enable it to conclude that a state which accorded another state
immunity from jurisdiction in proceedings in respect of personal injury caused by
an act or omission jure imperii in the territory of the forum state fell ‘outside any
currently accepted international standards’.154
For its part, the United Nations Convention on Jurisdictional Immunities of
States and Their Property (‘UN Convention on State Immunity’/‘UNCSI’) con-
tains in Article 12 a ‘territorial tort’ exception to a state’s immunity from foreign
jurisdiction, and the ILC made it clear in its commentary on the draft forerunner to
this provision that its application was without regard to the distinction between acta
jure gestionis and acta jure imperii.155 At the same time, it remains uncertain
whether the UNCSI as a whole applies in respect of military activities.156
In short, the issue was a live one when it came before the ICJ in Jurisdictional
Immunities.
3.2.1.2 The Court’s position

In the event, the Court in Jurisdictional Immunities restricted its ruling on the
‘territorial tort’ exception to proceedings in respect of acts performed in the terri-
tory of the forum state by foreign armed forces and other state organs in the
conduct of armed conflict. It did not decide the more basic question ‘whether
there is in customary international law a “[territorial] tort exception” to State
immunity applicable to acta jure imperii in general’.157 The Court held that
‘customary international law continues to require that a State be accorded immun-
ity in proceedings for torts allegedly committed on the territory of another State by
its armed forces and other organs of State in the course of conducting an armed
conflict’.158 It reasoned:
[ . . . ] State practice in the form of judicial decisions supports the proposition that State
immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning
death, personal injury or damage to property committed by the armed forces and other
organs of a State in the conduct of armed conflict, even if the relevant acts take place on the
153 McElhinney v Williams (n 152) 703.

154 McElhinney v Ireland (n 28) para 38.
155 See para 8 of the commentary to draft art 12 of the ILC’s draft articles on jurisdictional
immunities of States and their property, ILC Ybk 1991 II/(2), 13, 45.
156 See 3.2.1.3. 157 Jurisdictional Immunities (n 5) para 65.
territory of the forum State. That practice is accompanied by opinio juris, as demonstrated
by the positions taken by States and the jurisprudence of a number of national courts which
have made clear that they considered that customary international law required immunity.
The almost complete absence of contrary jurisprudence is also significant, as is the absence
of any statements by States in connection with the work of the International Law Commis-
sion regarding State immunity and the adoption of the United Nations Convention or, so
far as the Court has been able to discover, in any other context asserting that customary
international law does not require immunity in such cases.159
The Court noted that the state immunity legislation and case law of a range of
states did not distinguish in the application of the ‘territorial tort’ exception
between acta jure gestionis and acta jure imperii, and it highlighted both Article
12 of the UNCSI, which, as a matter of ‘deliberate choice’, ‘was not intended to
be restricted to acta jure gestionis’,160 and Article 11 of the ECSI. But it observed
that the application of the last to the acts of foreign armed forces in the conduct
of armed conflict was excluded by Article 31 of the ECSI, as had been affirmed
by several national courts.161 As for Article 12 of the UNCSI, the Court pointed
out that its draft precursor had been said by the ILC not to apply to ‘situations
involving armed conflicts’,162 while the Chairman of the Ad Hoc Committee on
Jurisdictional Immunities of States and Their Property had told the Sixth
Committee that ‘[t]he general understanding had always prevailed’ that ‘military
activities’ were not covered by the Convention,163 a statement not questioned by
states and subsequently expressly endorsed by two states parties.164 The conse-
quence, in the eyes of the Court, was that Article 12 of the UNCSI ‘cannot be
taken as affording any support to the contention that customary international
law denies State immunity in tort proceedings relating to acts occasioning death,
personal injury or damage to property committed in the territory of the forum
State by the armed forces and associated organs of another State in the context
of an armed conflict’.165 Nor, according to the ICJ, did the legislative or judicial
practice of states point to a contrary conclusion. Indeed, the few national
decisions directly on point suggested to the Court that a state was entitled to
immunity from proceedings in the courts of another state in respect of acts
performed by its armed forces or other organs in the forum state’s territory in
the course of armed conflict.166
161 See Jurisdictional Immunities (n 5) paras 67–8.
162 Jurisdictional Immunities (n 5) para 69, citing para 10 of the commentary to draft art 12 of the
ILC’s draft articles on jurisdictional immunities of States and their property (n 155).
163 Jurisdictional Immunities (n 5) para 69, citing GAOR, Fifty-ninth Session, Sixth Committee,
13th meeting, 25 October 2004, UN Doc A/C.6/59/SR.13 and Corr. 1, para 36.
164 See Jurisdictional Immunities (n 5) para 69, citing UNCSI depositary notifications C.N.280.
2006.TREATIES–2 (Norway: Ratification), 6 April 2006 and C.N.912.2009.TREATIES–1

(Sweden: Ratification), 24 December 2009.
165 Jurisdictional Immunities (n 5) para 69. See also para 77. The Court did not go so far as to
conclude that the UNCSI itself does not apply to military activities. See further 3.2.1.3.
166 See Jurisdictional Immunities (n 5) para 69, paras 70–6, citing a wide range of case law.
In addition, although not called on to decide the point, the Court ventured the
view, not confined to the context of armed conflict, that various national judicial
decisions, along with the Judgment of the Grand Chamber of the ECtHR in
McElhinney, ‘suggest that a State is entitled to immunity in respect of acta jure
imperii committed by its armed forces on the territory of another State’.167
3.2.1.3 Analysis
The ICJ’s decision on the narrow point before it is not unpersuasive as an
evidentiary matter and accords with principle, and for these and reasons of
interstate policy it is comparatively uncontroversial. The same goes for the Court’s
dictum as to immunity from jurisdiction in respect of acta jure imperii committed
by a state’s armed forces in the territory of another state in peacetime. While the
Court says nothing that the preponderance of national courts and the European
Court of Human Rights has not already said in either regard, its imprimatur should
nonetheless prove influential. Indeed, while its ruling on the wartime point is
carefully formulated as no more than an assessment of the present state of custom-
ary international law, it is highly likely to be received by states as the final word on
the matter.
Less convincing is what may be taken by states to be the Court’s oblique support
for the contentious proposition that the UNCSI does not apply to military
activities,168 although it is worth stressing in this regard that the Court, choosing
its words carefully, did not as such decide the point. No provision of the UNCSI
excludes its application to military activities. Nor is there anything in the drafting
records to suggest so wide an exclusion. The sole documented evidence of a ‘general
understanding’ to the effect is, as cited by the Court, the unsupported statement of
the Chairman of the Ad Hoc Committee and endorsement of it by Norway and
Sweden—only two states parties, it might have been noted, out of the thirteen to
date. Moreover, the Court did not mention that the single state party to have
enacted legislation so far to implement the Convention, namely Japan, has ex-
cluded neither military activities nor situations involving armed conflicts from the
scope of application of either its statute as a whole or of the ‘territorial tort’
exception included in it.169 Although the impact of the Court’s words remains to
be seen, the concern must be that they are taken to be authoritative and conclusive
of the position under the UNCSI, which may in turn prejudice a live debate in
which the competing bodies of evidence are at present evenly balanced and to
which the resolution ought ultimately to depend on the future practice of states
parties.

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

of international humanitarian or human
rights law or jus cogens
3.2.2.1 Background
Ever since the rise in the 1980s of cases in the US under the Alien Tort Claims Act,
arguments had been advanced that customary international law did not recognize a
state’s immunity from foreign civil jurisdiction where the claim alleged a violation
of customary international human rights law, customary international humanitar-
ian law, or some other customary rule on the humane treatment of individuals or,
more specifically, where the claim alleged a violation of a peremptory norm ( jus
cogens). But despite their popularity with partisans inside and outside the academy,
these arguments had enjoyed little success in national or international judicial fora.
At the national level, this was sometimes for the simple reason that the governing
statute did not embody any relevant exception to state immunity.170 More com-
monly, however, the putative exception or exceptions to a state’s immunity from
foreign jurisdiction were rejected on their merits, by reference to positive customary
international law or principle or both.171 Most influential in this regard were the
respective decisions of the Grand Chamber of the European Court of Human
Rights in Al-Adsani v United Kingdom172 and of the First Section of that court in
Kalogeropoulou v Greece and Germany.173 In Al-Adsani, ‘[n]otwithstanding the
special character of the prohibition of torture in international law’ as a norm of
jus cogens,
the Court [was] unable to discern in the international instruments, judicial authorities or
other materials before it any firm basis for concluding that, as a matter of international law, a
170 See Argentina v Amerada Hess Shipping Corp. 488 US 428 (1989), 433–38, 443; Siderman de
Blake v Argentina 965 F.2d 699 (9th Cir. 1992), 714–19; Princz v Germany 26 F.3d 1166 (DC Cir.
1992), 1171–6; Smith v Libya 101 F.3d 239 (2d Cir. 1996); Al-Adsani v Kuwait (1996) 107 ILR 536,
542–4 (Stuart-Smith LJ), 547–50 (Ward LJ); Bouzari v Iran (2004) 128 ILR 586, 599, paras 57–9,
601, para 67, 605, para 90, 608, para 104; Arar v Syria (2005) 127 CRR 2d 252, paras 21–2, 25–6,
28, 30–1; Zhang v Jiang (2010) 148 ILR 555, 589, para 153 (Spigelman CJ), 589–91, paras 157–64,
593, para 172 (Allsop P).
171 See Margellos v Germany (n 146) 529–33, paras 12–15; AA (n 151) paras 14, 18, 20–1; Bouzari
v Iran (2002) 124 ILR 427, 443–6, paras 63–73 and Bouzari v Iran (n 170) 604–6, paras 84–95; Greek
Citizens v Germany (n 147) 556–62 and Greek Citizens v Germany (2006) 135 ILR 186, 191–2; Cass.
No. 02-45961 (Bucheron v Federal Republic of Germany), 16 December 2003, Bull. civ., 2003, I, No.
258; Cass. No. 03-41851 (Gimenez-Esposito v Federal Republic of Germany), 2 June 2004, Bull. civ.,
2004, I, No. 158; Arar v Syria (n 170), paras 23, 31; Jones v Saudi Arabia, 129 ILR 629, 722–3, para
18, 726–7, para 24 (Lord Bingham), 731–2, paras 40–5, 736, para 55 (Lord Hoffmann) (2006); Cass.
No. 47-504 (Grosz v Federal Republic of Germany), 3 January 2006; Fang v Jiang (2006) 141 ILR 702,
710, paras 33–5, 714, para 51, 716–19, paras 60, 62–72; Zhang v Jiang (2008) 141 ILR 542, 551–3,
paras 35–40; Zhang v Jiang (n 170), 582, para 121 (Spigelman CJ); Natoniewski v Germany (2010) 30
Polish YIL 299, 302–3 (2010); Cass. No. 09-14743 (La Réunion Aérienne v Libyan People’s Socialist
Jamahiriya), 9 March 2011, Bull. civ., 2011, I, No. 247.
172 See n 28. 173 See n 28.
State no longer enjoys immunity from civil suit in the courts of another State where acts of
torture are alleged.174
In short, there was ‘[not] yet acceptance in international law of the proposition that
States are not entitled to immunity in respect of civil claims for damages for alleged
torture committed outside the forum State’.175 In Kalogeropoulou, the Court held
similarly that, despite the applicant’s claim that the prohibition on crimes against
humanity enjoyed the character of jus cogens, there was ‘[not] yet acceptance in
international law of the proposition that States are not entitled to immunity in
respect of civil claims for damages brought against them in another State for crimes
against humanity’.176
For its part, the UNCSI contains no exception to state immunity in respect of
claims alleging violations of international rules on the humane treatment of
individuals or more specifically of jus cogens. This absence reflects a decision
taken in the course of working up the ILC’s draft articles on jurisdictional
immunities of states and their property, as finally adopted on second reading in
1991, into the UNCSI, as adopted by the United Nations General Assembly in
2004. When the open-ended Working Group of the Sixth Committee of the
General Assembly reconvened in 1999 to examine outstanding issues relating to
the draft articles, it considered whether to take up a matter raised in the
appendix to the report to the ILC earlier that year of the Commission’s own
Working Group on Jurisdictional Immunities of States and Their Property,177
‘namely the question of the existence or nonexistence of immunity in the case of
violation by a State of jus cogens norms of international law’.178 ‘It was generally
agreed’, however, by the delegates to the Sixth Committee’s Working Group,
‘that this issue, although of current interest, did not really fit into the [ . . . ] draft
articles’.179 Moreover, the issue ‘did not seem to be ripe enough for the
Working Group to engage in a codification exercise over it’.180 In this light,
the Chairman of the Sixth Committee’s Working Group, while considering the
decision one for the Sixth Committee itself, concluded that ‘it [did] not seem
advisable’ to include the matter among those to be dealt with in future consideration
of the prospective convention.181 No objection to this manner of proceeding was
subsequently raised in the Sixth Committee. Moreover, the Japanese delegate who
eventually introduced the draft of what became General Assembly resolution 54/101
174 Al-Adsani v United Kingdom (n 28) 42, para 61.

175 Al-Adsani v United Kingdom (n 28) 43, para 66.
176 Kalogeropoulou v Greece and Germany (n 28) 547.
177 See Report of the Working Group on Jurisdictional Immunities of States and Their Property, in
Report of the International Law Commission on the Work of its Fifty-first Session, ILC Ybk 1999 II/2,
1, Annex.
178 Convention on Jurisdictional Immunities of States and Their Property: Report of the Chairman
of the Working Group, UN Doc A/C.6/54/L.12 (12 November 1999) para 46.
179 Report of the Chairman of the Working Group (n 178) para 47.
of 9 December 1999 (‘Convention on jurisdictional immunities of States and their

property’) explicitly supported the exclusion of future discussion of the matter.182
At the same time, the preamble to the UNCSI affirms ‘that the rules of
customary international law continue to govern matters not regulated by the
provisions of the [ . . . ] Convention’. In this light, when ratifying the Convention
in 2009, Sweden, reproducing almost verbatim Norway’s declaration of 2006,183
declared its understanding that ‘the Convention is without prejudice to any future
international legal development concerning the protection of human rights’.184 In
a similar vein, on its accession to the Convention in 2010, Switzerland declared its
understanding that the Convention ‘is without prejudice to developments in
international law’ regarding ‘pecuniary compensation for serious human rights
violations which are alleged to be attributable to a State and are committed
outside the State of the forum’.185 As for the European Court of Human Rights,
in neither Al-Adsani nor Kalogeropoulou did it preclude the future development of
customary international law in favour of the unavailability of state immunity in
civil claims relating to torture and crimes against humanity. Nor did it venture an
opinion on the availability of state immunity as a bar to actions for damages in
respect of violations of other international norms on the humane treatment of
individuals.
State practice, moreover, was not all in the same direction. A relevant legislative
exception to statutory state immunity had existed in the US since 1996. Formerly
under 28 USC }1605(a)(7), originally introduced by }221 of the Antiterrorism and
Effective Death Penalty Act of 1996,186 and now under 28 USC }1605A, inserted
by way of }1083(b)(1) of the National Defense Authorization Act for Fiscal Year
2008,187 the immunity from proceedings to which a foreign state designated as a
state sponsor of terrorism would otherwise be entitled under the Foreign Sovereign
Immunities Act (FSIA) is abrogated in respect of actions for damages for personal
injury or death caused to a US national or, under 28 USC }1605A, to a member of
the US armed forces or US government employee or contractor acting within the
scope of his or her employment by that foreign state’s act of torture, extra-judicial
killing, aircraft sabotage, or hostage-taking, or by its provision of material support
or resources for any such act. A bill to equivalent effect was introduced in the
Canadian Parliament in September 2011.188 For its part, and of more immediate
relevance, the Greek Court of Cassation in Prefecture of Voiotia, upholding the
denial to Germany of state immunity from civil proceedings pertaining to war
crimes and crimes against humanity committed during the Second World War, was
182 UN Doc A/C.6/54/SR.36 (24 April 2000) para 9.

183 See UNCSI depositary notification C.N.280.2006.TREATIES–2 (Norway: Ratification),
6 April 2006.
184 UNCSI depositary notification C.N.912.2009.TREATIES–1 (Sweden: Ratification), 24 December
2009.
185 UNCSI depositary notification C.N.223.2010.TREATIES–2 (Switzerland: Accession),
20 April 2010.
186 Pub. L. No. 104-132, 110 Stat. 1214 (1996).
187 Pub. L. 110-181, 122 Stat. 341 (2008). 188 See n 226.
persuaded by reasoning based on jus cogens,189 even if the Greek Special Supreme
Court in Margellos190 later rejected this line of argument.191 Most pertinently, in
Ferrini v Germany192 and subsequent cases,193 the decisions directly at issue before
the ICJ in Jurisdictional Immunities, the Italian Court of Cassation ruled that a state
may not rely on immunity from jurisdiction as a procedural bar to civil claims in
respect of alleged violations of jus cogens.194
On top of this, a vocal school of international legal thought195 and activism196
continued to press for the recognition of some sort of exception to state immunity
in the context of alleged violations of international rules for the protection of the
human person or, more specifically, of jus cogens.
In short, although prior to Jurisdictional Immunities customary international law
seemed to favour the retention of state immunity as a procedural bar to claims for
damages in respect of alleged violations of international humanitarian or human
rights law or of jus cogens, the matter was by no means beyond doubt, and remained
vociferously contested.
189 See Prefecture of Voiotia v Germany (n 145) 521. It will be recalled that the enforcement of the
judgment by the Italian courts was one of the triggers for Germany’s application to the ICJ in
Jurisdictional Immunities (n 5).
190 See Margellos v Germany (n 146) 532, para 14.
192 See Ferrini v Germany (2004) 128 ILR 658, 668–74, paras 8.2–12, esp 668–9, paras 9–9.1.
While the Judgment refers consistently to ‘international crimes’, rather than to violations of jus cogens,
it characterizes the norms in question as ones ‘from which no derogation is permitted’ and which
‘prevail over all other conventional and customary norms’, and cites in this context Articles 40 and 41
of the Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc A/RES/56/83,
Annex (28 January 2002), which relate to serious breaches of obligations arising under peremptory
norms of general international law.
193 See eg Germany v Mantelli ILDC 1037 (IT 2008) para 11; Italy v Milde ILDC 1224 (IT 2009)
paras 3–7; Germany v Autonomous Province of Voiotia ILDC 1815 (IT 2011) para 28.
195 See eg K Bartsch and B Elberling, ‘Jus Cogens vs. State Immunity, Round Two: The Decision
of the European Court of Human Rights in the Kalogeropoulou et al v Greece and Germany Decision’
(2003) 4 German LJ 477, 483–90; A Bianchi, ‘L’immunité des Etats et les violations graves des droits
de 1’homme: la fonction de l’interprète dans la détermination du droit international’ (2004) 108 Revue
Générale de Droit International Public 63; A Bianchi, ‘Overcoming the Hurdle of State Immunity in
the Domestic Enforcement of International Human Rights’ in B Conforti and F Francioni (eds),
Enforcing International Human Rights In Domestic Courts (The Hague: Martinus Nijhoff, 1997) 405;
RS Brown, ‘Access to Justice for Victims of Torture’ in F Francioni (ed), Access To Justice as a Human
Right (Oxford: OUP, 2007) 205; S Humes-Schulz, ‘Limiting Sovereign Immunity in an Age of
Human Rights’ (2008) 21 Harvard Human Rights J 105; L McGregor, ‘Torture and State Immunity:
Deflecting Impunity, Distorting Sovereignty’ (2007) 18 EJIL 903; A Orakhelashvili, ‘State Immunity
and Hierarchy of Norms: Why the House of Lords Got It Wrong’ (2008) 18 EJIL 955; A Orakhe-
lashvili, ‘State Immunity in National and International Law: Three Recent Cases Before the European
Court of Human Rights’ (2002) 15 Leiden JIL 703; I Pingel, ‘Droit d’accès aux tribunaux et exception
d’immunité: la Cour de Strasbourg persiste’ (2002) 106 Revue Générale de Droit International Public
893, 906; E Steinerte and RMM Wallace, ‘Jones v Ministry of Interior of the Kingdom of Saudi
Arabia, [2006] UKHL 26’ (2006) 100 American JIL 901.
196 See eg Press Release, Redress, Amnesty International and Justice, UK: Saudi Torture Ruling Is a
Sad Day for British Justice (14 June 2006), <http://www.amnesty.org.uk/news_details.asp?NewsID=

16992> (accessed 17 May 2013).
3.2.2.2 The Court’s position

In Jurisdictional Immunities, the ICJ prefaced its examination of Italy’s first sub-
mission, namely ‘that international law does not accord immunity to a State, or at
least restricts its right to immunity, when that State has committed serious viola-
tions of the law of armed conflict’,197 with the following observation:
[T]he proposition that the availability of immunity will be to some extent dependent upon
the gravity of the unlawful act presents a logical problem. Immunity from jurisdiction is an
immunity not merely from being subjected to an adverse judgment but from being
subjected to the trial process. It is . . . necessarily preliminary in nature. Consequently a
national court is required to determine whether or not a foreign State is entitled to
immunity as a matter of international law before it can hear the merits of the case brought
before it and before the facts have been established. If immunity were to be dependent upon
the State actually having committed a serious violation of international human rights law or
the law of armed conflict, then it would become necessary for the national court to hold an
enquiry into the merits in order to determine whether it had jurisdiction. If, on the other
hand, the mere allegation that the State had committed such wrongful acts were to be
sufficient to deprive the State of its entitlement to immunity, immunity could, in effect, be
negated simply by skilful construction of the claim.198
But the Court acknowledged all the same that it was obliged to ascertain ‘whether
customary international law ha[d] developed to a point where a State [was] not
entitled to immunity in the case of serious violations of human rights law or the law
of armed conflict’.199
Turning to its task, the Court surveyed ‘a substantial body of State practice’
which demonstrated that ‘customary international law does not treat a State’s
entitlement to immunity as dependent on the gravity of the act of which it is
accused or the peremptory nature of the rule which it is alleged to have vio-
lated’.200 ‘Arguments to the effect that international law no longer required State
immunity in cases of allegations of serious violations of international human
rights law, war crimes or crimes against humanity [had] been rejected’ by a
wide range of national courts;201 the US’s amendment to its FSIA in respect of
designated state sponsors of terrorism had ‘no counterpart in the legislation of
other States’;202 it was ‘noticeable that there [was] no limitation of State immun-
ity by reference to the gravity of the violation or the peremptory character of the
rule breached in the European Convention [or] United Nations Convention’, the
latter absence being ‘particularly significant, because the question whether such a
provision was necessary was raised at the time that the text which became the
201 Jurisdictional Immunities (n 5) para 85, citing most of the cases cited n 171. The Court noted, at
para 83, that the decision in Prefecture of Voiotia v Germany had been repudiated by the Greek Special
Supreme Court in Margellos v Germany, the latter being the decision that the Greek courts were bound
to follow.
Convention was under consideration’;203 and the European Court of Human
Rights ‘had not accepted the proposition that States [were] no longer entitled to
immunity in cases regarding serious violations of international humanitarian law
or human rights law’.204 In this light, the Court concluded ‘that, under customary
international law as it presently stands, a State is not deprived of immunity by
reason of the fact that it is accused of serious violations of international human
rights law or the international law of armed conflict’.205 It emphasized for the
avoidance of doubt that, in reaching this conclusion, it was ‘addressing only the
immunity of the State itself from the jurisdiction of courts of other States’, since
‘the question whether, and if so to what extent, immunity might apply in criminal
proceedings against an official of the State [was] not in issue’ in the case.206
The Court next addressed the limb of Italy’s argument based on ‘the existence of
a conflict between a rule, or rules, of jus cogens and the rule of customary
international law which requires one State to accord immunity to another’,207
holding as follows:
In the opinion of the Court, . . . no such conflict exists. Assuming for this purpose that the
rules of the law of armed conflict which prohibit the murder of civilians in occupied
territory, the deportation of civilian inhabitants to slave labour and the deportation of
prisoners of war to slave labour are rules of jus cogens, there is no conflict between those rules
and the rules on State immunity. The two sets of rules address different matters. The rules of
State immunity are procedural in character and are confined to determining whether or not
the courts of one State may exercise jurisdiction in respect of another State. They do not
bear upon the question whether the conduct in respect of which the proceedings are brought
was lawful or unlawful. . . . [R]ecognizing the immunity of a foreign State in accordance with
international law does not amount to recognizing as lawful a situation created by the breach
of a jus cogens rule, or rendering aid or assistance in maintaining that situation, and so cannot
contravene the principle in Article 41 of the International Law Commission’s Articles on
State Responsibility.208
‘Nor [was] the argument strengthened’, the Court continued, ‘by focusing upon
the duty of the wrongdoing State to make reparation, rather than upon the original
wrongful act’:209
The duty to make reparation is a duty which exists independently of those rules which
concern the means by which it is to be effected. The law of State immunity concerns only
203 Jurisdictional Immunities (n 5) para 89, referring to the ECSI and UNCSI and recounting the
drafting history cited nn 178–81, which ‘indicate[d] that, at the time of the adoption of the United
Nations Convention in 2004, States did not consider that customary international law limited
immunity in the way . . . suggested by Italy’.
204 Jurisdictional Immunities (n 5) para 90, referring to Al-Adsani v United Kingdom (n 28)
and Kalogeropoulou v Greece and Germany (n 28).

206 Jurisdictional Immunities (n 5) para 91. The distinction was one of the reasons the Court, at para
87, considered irrelevant the House of Lords’ decision in Pinochet (No 3) (n 80), the other being that
the decision turned on the language of the United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (n 80).
the latter; a decision that a foreign State is immune no more conflicts with the duty to make
reparation than it does with the rule prohibiting the original wrongful act.210
‘To the extent’, furthermore, ‘that it [was] argued that no rule which is not of the
status of jus cogens may be applied if to do so would hinder the enforcement of a jus
cogens rule, even in the absence of a direct conflict’, the Court saw ‘no basis for such
a proposition’:211
A jus cogens rule is one from which no derogation is permitted but the rules which determine
the scope and extent of jurisdiction and when that jurisdiction may be exercised do not
derogate from those substantive rules which possess jus cogens status, nor is there anything
inherent in the concept of jus cogens which would require their modification or would
displace their application.212
The Court recalled that it had taken this approach in two cases of its own, including
Arrest Warrant, ‘notwithstanding that the effect was that a means by which a jus
cogens rule might be enforced was rendered unavailable’.213 It ‘considered that the
same reasoning [was] applicable to the application of the customary international
law regarding the immunity of one State from proceedings in the courts of
another’.214 Moreover, the argument that ‘jus cogens displac[es] the law of State
immunity’ had been rejected by a range of national courts and by the European
Court of Human Rights, and was not reflected in national legislation.215 In this
light, the Court concluded that, ‘even on the assumption that the proceedings in
the Italian courts involved violations of jus cogens rules, the applicability of the
customary international law of State immunity was not affected’.216
As for the third of Italy’s interrelated submissions, namely ‘that the Italian courts
were justified in denying Germany the immunity to which it would otherwise have
been entitled because all other attempts to secure compensation for the various
groups of victims involved in the Italian proceedings had failed’,217 the Court could
find ‘no basis’ in State practice to suggest ‘that international law makes the entitle-
ment of a State to immunity dependent upon the existence of effective alternative
means of securing redress’.218 Such a rule, moreover, would be ‘exceptionally
difficult’ to apply.219
3.2.2.3 Analysis
As with its ruling on the ‘territorial tort’ point, the ICJ’s conclusion on the
international humanitarian law/international human rights law/jus cogens point is
213 Jurisdictional Immunities (n 5) para 95. The other case alluded to by the Court is Armed Activities
on the Territory of the Congo (New Application: 2002) (DRC v Rwanda) [2006] ICJ Rep 6, 32, para 64.
218 Jurisdictional Immunities (n 5) para 101, referring again to national legislation and case law and
to the ECSI and UNCSI.

framed as a determination of the state of customary international law ‘as it presently
stands’.220 Even more, however, than in relation to the ‘territorial tort’ exception,
the Court’s categorical rejection of the putative humanitarian/human rights/jus
cogens exception to state immunity, bolstered as it is by persuasive arguments as to
legal principle, promises to forestall any possibility of customary developments on
this score for decades to come. It is true that, prior to the Judgment, it was only the
Italian courts that had consistently recognized an exception of the kind alleged, in
their case relying effectively221 on the peremptory character of the international
prohibitions at issue as the rationale for the abrogation of state immunity. To this
extent, it could be argued that the Court’s voice is simply the latest to be raised in
what has been a chorus of dismissal. But arguments such as those put to the Court
by Italy have nonetheless continued to be advanced in a seemingly endless proces-
sion of speculative claims across a host of jurisdictions, the hope apparently being
that a court somewhere sometime would, like the Italian Court of Cassation, place
dogmatic naturalism before state practice and opinio juris and, for that matter,
formal logic. After the ICJ’s Judgment, it is hard to see even the most optimistic
victims’ organization or loss-leading law firm, let alone legal aid fund, backing the
sort of case so roundly ruled out by the Court.
National courts have already begun to take heed of Jurisdictional Immunities. In
August 2012, the Court of Appeal of Quebec, Canada, referring to the ICJ’s
‘conclusive refutation’ of arguments for an exception to a foreign state’s immunity
from jurisdiction in favour of ‘a jus cogens protection of human rights’, held
unanimously in Islamic Republic of Iran v Hashemi that no such exception exists.222
For its part, the Italian Court of Cassation, whose judgments from Ferrini onwards
were impugned in Jurisdictional Immunities, accepted also in August 2012 that the
principles enunciated in Ferrini do not at present reflect positive customary
international law.223
This is not to say that all cognate civil claims that as a matter of the international
law of state immunity ought not to proceed will from now on be defeated. It may
be that not every state falls into line in every regard. First, although the US’s
abrogation of state immunity in respect of specified claims against designated state
sponsors of terrorism has been holed below the water by the ICJ’s conclusions in
Jurisdictional Immunities and by the Court’s pointed observation that this abroga-
tion had ‘no counterpart in the legislation of other States’,224 it is unlikely in the
220 Jurisdictional Immunities (n 5) para 91. 221 See above n 192.

222 Iran v Hashemi (2012) QCCA 1449, paras 54–5, quote at para 55.
223 See judgment n. 32139 of 30 May 2012, rendered 9 August 2012 Fr CoC (First Criminal
Section) paras 5–7. (The case involved a claim for civil damages on the back of a criminal
prosecution.) The Court of Cassation insisted nonetheless on the coherence of its criticized
reasoning, doubted the reasoning of the ICJ insofar as the latter denied the existence of any conflict
between the putative norms of jus cogens violated by Germany and Italy’s obligation to
accord Germany immunity, and observed that an exception to immunity as enunciated in Ferrini
could emerge in future.
extreme that 28 USC }1605A will be repealed anytime soon. Furthermore, the
provision now has at least one counterpart. On 13 March 2012, five weeks after the
ICJ’s Judgment, Canada’s Safe Streets and Communities Act 2012225—which had
been tabled in Parliament on 20 September 2011226—received assent. Section 5227
of the Act inserts into Canada’s State Immunity Act a section 6.1 akin to 28 USC
}1605A.228 Secondly, while international law conceives of the immunity of foreign
state officials from civil proceedings in respect of acts performed by them in their
capacity as state officials as an instantiation of state immunity pure and simple,229
US federal common law,230 as traditionally ‘suggested’ in this regard to the federal
courts by the US Department of State, appears to conceive of situations in which
the immunity of a state official acting in that capacity and the immunity of the state
eo nomine are not coextensive.231 This raises the possibility that Jurisdictional
Immunities may not be taken in the US to apply to so-called ‘foreign official
immunity’. What is more, on 2 November 2012, nine months after the ICJ’s
outright rejection of such arguments in relation to the immunity of a foreign state
when sued as such, the US Court of Appeals for the Fourth Circuit held in Yousuf v
Samantar that, ‘under international and domestic law, officials from other countries
are not entitled to foreign official immunity for jus cogens violations, even if the acts
were performed in the defendant’s official capacity’.232 The Court spoke of ‘an
increasing trend in international law’ (as evidenced by a quotation from a law
journal article, a misreading of the ratio decidendi of the criminal case of Pinochet
(No 3), and passing reference to Ferrini v Germany, which the court was fair-
minded enough to contrast with Jones v Saudi Arabia) ‘to abrogate foreign official
immunity for individuals who commit acts, otherwise attributable to the State, that
violate jus cogens norms—i.e., they commit international crimes or human rights
225 SC 2012, c. 1. 226 See Safe Streets and Communities Bill (Bill C-10).
227 Section 5 falls within a sub-part, entitled ‘Amendments to the State Immunity Act’, of Part I
(itself entitled the Justice for Victims of Terrorism Act) of the SSCA.
228 Section 6.1 SIA (Can) provides: ‘(1) A foreign state that is set out on the list referred to in
subsection (2) is not immune from the jurisdiction of a court in proceedings against it for its support of
terrorism on or after 1 January 1985. (2) The Governor in Council may, by order, establish a list on
which the Governor in Council may, at any time, set out the name of a foreign state if, on the
recommendation of the Minister of Foreign Affairs made after consulting with the Minister of Public
Safety and Emergency Preparedness, the Governor in Council is satisfied that there are reasonable
grounds to believe that the foreign state supported or supports terrorism. . . . (11) Where a court of
competent jurisdiction has determined that a foreign state, set out on the list in subsection (2), has
supported terrorism, that foreign state is also not immune from the jurisdiction of a court in
proceedings against it that relate to terrorist activity by the state.’
229 See eg UNCSI, Art 2(1)(b)(iv), including within the definition of ‘State’ for the purposes of the
UNCSI ‘representatives of the State acting in that capacity’.

230 That the question is one of federal common law, rather than of the FSIA, was determined by the
US Supreme Court in Samantar v Yousuf (2010) 147 ILR 726 (USSC).

231 See eg Samantar v Yousuf (n 230) 736–37.
232 Yousuf et al v Samantar United States Court of Appeals for the Fourth Circuit, Appeal No
11-1479, 2 November 2012, 21–2. See also 23: ‘Because this case involves acts that violated jus cogens
norms, including torture, extrajudicial killings and prolonged arbitrary imprisonment of politically and
ethnically disfavored groups, we conclude that [the defendant] is not entitled to conduct-based official
immunity under common law, which in this area incorporates international law.’
violations’, even if ‘the jus cogens exception appear[ed] to be less settled in the civil
context’.233
But such idiosyncratic national approaches are likely to remain just that. Add-
itionally, although the Judgment of the Court of Appeals for the Fourth Circuit in
Samantar postdates the Judgment in Jurisdictional Immunities, the written plead-
ings long precede it. For its part, the State Department’s Statement of Interest in
the case—in deference to which, a year before the ICJ’s Judgment, the US District
Court for the Eastern District of Virginia dismissed at first instance the defendant’s
plea of ‘foreign official immunity’234—was submitted as far back as 14 February
2011235 and was simply reiterated in the Department’s amicus curiae brief on
appeal, filed on 24 October 2011,236 again prior to the ICJ’s Judgment. Of
relevance for present purposes, this Statement of Interest characterized ‘foreign
official immunity’ as an aspect of foreign sovereign immunity (that is, state
immunity),237 a characterization affirmed in the appellate Judgment;238 was avow-
edly based on a consideration of, inter alia, ‘the applicable principles of customary
international law’;239 and did not allege a jus cogens-based or similar exception to
immunity.240 In this light, it would be premature to rule out the possibility that the
ICJ’s conclusion in Jurisdictional Immunities as to the non-existence under custom-
ary international law of a jus cogens exception to state immunity may yet influence
even the US federal common law of ‘foreign official immunity’.
4. The ICJ versus other international lawmaking processes
The ICJ was a latecomer to the international law of jurisdictional immunities.

The customary international rules on state immunity in the context of civil
jurisdiction have developed over centuries, with the evolution from the absolute
233 See Yousuf et al v Samantar (n 232) 20–1, citing CA Bradley and LR Helfer, ‘International Law
and the US Common Law of Foreign Official Immunity’, 2010 Sup. Ct Rev. 213, 236–7; Pinochet
(No 3) (n 80); Ferrini v Germany (n 192); Jones v Saudi Arabia (n 137).
234 See Yousuf et al v Samantar United States District Court for the Eastern District of Virginia,
Civil Action No. 1:04 CV 1360 (LMB), Order (Leonie M Brinkema, District Judge), 15 February
2011.
235 See Yousuf et al v Samantar United States District Court for the Eastern District of Virginia,
Civil Action No. 1:04 CV 1360 (LMB), Statement of Interest of the United States of America,
14 February 2011.
236 See Yousuf et al v Samantar United States Court of Appeals for the Fourth Circuit, Appeal No
11-1479, Brief for the United States as Amicus Curiae Supporting Appellees, 24 October 2011. In
contrast to the court at first instance, the Court of Appeals for the Fourth Circuit did not simply defer
to the State Department’s determination of immunity, preferring a jus cogens-based ratio decidendi.
237 See Yousuf et al v Samantar, Statement of Interest (n 235) paras 3 and 5.
238 See Yousuf et al v Samantar (n 232) 16–17.
239 Yousuf et al v Samantar, Statement of Interest (n 235) para 9.
240 The State Department, in Yousuf et al v Samantar, Statement of Interest (n 235) para 9, instead
considered it ‘critical’ that the defendant was ‘a former official of a state with no currently recognized
government to request immunity on his behalf, including by expressing a position on whether the acts
in question were taken [sic] in an official capacity’, and that ‘US residents like [the defendant] who
enjoy the protections of US law ordinarily should be subject to the jurisdiction of [US] courts,
especially when sued by US residents’.
to the restrictive doctrine over the past 120 years being driven both by unilateral
moves on the part of national courts and legislatures and by states’ contributions
and reactions to more coordinated, international efforts, public and private,
towards the progressive development and eventual binding codification of a new
international law of state immunity.241 The catalytic role in the latter regard of the
ILC, through its work from 1978 to 1991 on what became its draft articles on
jurisdictional immunities of states and their property,242 deserves special mention.
So does the part played by the Sixth Committee of the United Nations General
Assembly, in particular through its Ad Hoc Committee on Jurisdictional Immun-
ities of States and Their Property, which shepherded interstate efforts to transform
the ILC’s draft articles into the eventual United Nations Convention on Jurisdic-
tional Immunities of States and Their Property, adopted by the General Assembly
in late 2004. As for the particular immunities from which serving and former
diplomats, consuls, heads of state, and members of special missions benefit under
international law, their genesis and the shaping of their basic contours similarly owe
nothing to the Court,243 being the products of largely the same processes as gave
rise to the modern law of state immunity, among them (bar in relation to head-of-
state immunity) the active involvement of the ILC in the elaboration of codificatory
conventions.244 In some measure, then, what the ICJ has added to the international
law of jurisdictional immunities has been by way of icing on the cake.
But in relation to the immunity of state officials from foreign criminal jurisdic-
tion beyond the codified realm, particularly in respect of allegations of international
crimes, the opportunity for the ICJ’s involvement presented itself while the ingredi-
ents, so to speak, were still being assembled. State practice prior to Arrest Warrant
was sparse, permitting the Court to become the dominant participant in the
emergence of the law, including in its crystallization via the subsequent work—
triggered in large part by the Court itself—of the ILC. As for the Court’s contribu-
tion to the question of state immunity from proceedings alleging violations of
international rules, peremptory or otherwise, for the humane treatment of individ-
uals and groups, while this ceded more ground to prior national case law, this
practice was divided and contested, leaving the issue unresolved and the Court in a
position to stamp its authority on the law.
241 See, generally, G Hafner, ‘Historical Background to the Convention’ in O’Keefe and Tams
(n 168) 1; H Fox, The Law of State Immunity (Oxford: OUP, 2nd edn 2008), chs 8 and 9; Y Xiaodong,
State Immunity in International Law (Cambridge: CUP, 2012), ch 1.
242 See n 155.
243 That said, the Court’s reconceptualization of head-of-state immunity in Arrest Warrant as akin
to diplomatic immunity, including in the pragmatic reasons that underpin it, rather than as an
instantiation of state immunity, has significant implications, in particular for the content of head-of-
state immunity from civil proceedings. See R O’Keefe, ‘Article 3’ in O’Keefe and Tams (n 168) 73,
84–8.
244 See draft articles on diplomatic intercourse and immunities, ILC Ybk 1958 II, 89, para 53,
which resulted in the VCDR (n 41); draft articles on consular relations, ILC Ybk 1961 II, 92, para 37,
which led to the Vienna Convention on Consular Relations, Vienna, 24 April 1963, 596 UNTS 261;
draft articles on special missions, ILC Ybk 1967 II, 347, para 35, which eventuated in the CSM (n 41).
Consider also draft articles on the representation of states in their relations with international organiza-
tions, ILC Ybk 1971 II/2, 284, para 60, which fed into the VCRS (n 41).
5. Conclusion
The ICJ has had occasion to rule and has made occasion to speak on state
immunity and on immunities ratione personae both positive and putative. It has
taken these and other opportunities to expound as well on general features of the
international law of jurisdictional immunities. In its pronouncements on the more
contentious questions, the Court has vigorously affirmed a traditional vision of
non-contestational interstate relations based on mutual respect for sovereignty,
preferring fraught issues of international responsibility, whether state or individ-
ual, to be kept out of national courts. According to its supporters, the Court has in
this way contributed to the restoration of sanity after a period of fractious dis-
equilibrium. To its opponents, the Court has thrown in its lot with the forces of
reaction, variously spearheading and sanctifying an international legal counter-
reformation. Either way, the formal and informal impact on the relevant rules of
customary international law of the Court’s sometimes activist, sometimes ortho-
dox judgments has been and will continue to be significant. This is all the more so
for the fact that, when it comes to the law of jurisdictional immunities, the
Court’s constituency comprises in large part other courts, which for reasons
both institutional and instinctual are more likely than the executive or legislative
branches of states to give unmediated effect to its rulings, even if they may not
always explicitly acknowledge them.
PART IV
SPATIAL REGIMES
8
and the Law of Territory
Malcolm N Shaw QC
1. Introduction
The law relating to territory remains the bedrock of both classical and modern
international law. The rise of globalization and supranational organizations and
enterprises notwithstanding, the concepts of territorial sovereignty and territorial
integrity constitute the beating heart of international law. Without those concepts,
statehood would be legally meaningless and the international system would still be
founded securely upon the notion of independent, sovereign states interacting with
a view to progressing both national interests and, to some extent, international
cooperation.
The political/legal notion of sovereignty itself is founded upon the fact of
territory. Without territory, and more particularly territorial sovereignty, a legal
person cannot be a state.1 It is the basic characteristic of a state and thus statehood.
The international political system functions on the basis of the existence of some
200 distinct territorial units, each one subject to a different territorial sovereign.
From this sovereignty flows as a consequence the concept of jurisdiction. The
principle whereby a state is deemed to exercise exclusive power over its territory can
be regarded as a fundamental axiom of classical international law.2 The develop-
ment of international law upon the basis of the exclusive authority of the state
within an accepted territorial framework has meant that territory has become
‘perhaps the fundamental concept of international law’.3
1 See RY Jennings and AD Watts (eds), Oppenheim’s International Law (Oxford: OUP, 9th edn
1992) 563.
2 See L Delbez, ‘Du territoire dans ses rapports avec l’état’ (1932) 39 Revue générale de droit
international public 46. See also N Hill, Claims to Territory in International Law and Relations
(Cambridge: CUP, 1945) 3; and SP Sharma, Territorial Acquisition, Disputes and International Law
(Dordrecht: Martinus Nijhoff, 1997).
3 DP O’Connell, International Law (London: Stevens & Sons, 2nd edn 1970), vol I, 403. See also
RY Jennings, The Acquisition of Territory in International Law (Manchester: MUP, 1963) 87, and
Island of Palmas (Netherlands v US ) (1928) 2 RIAA 829, 838.
From such fundamentals have evolved a series of norms in international law
aimed at the protection and safeguarding of the state’s relationship to its territor-
ial space. The principle of respect for the territorial integrity of states still clearly
functions as one of the linchpins of the international system, as does the norm
prohibiting interference in the internal affairs of other states. Although the
territorial exclusivity of the state in international law has been affected by
political, technological, and economic changes as the importance of interdepend-
ence and cooperation through multinational arrangements and international
organizations become ever more evident in areas such as human rights, the
environment, and trade, it is fair to say that territorial sovereignty remains at
the core of international law.
The importance of territory within the international system is thus emphasized
by the evolution of rules that have had the purpose and consequence of ring-fencing
it. Article 2(4) of the United Nations Charter, for example, provides that ‘All
members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State’, while the
Declaration on Principles of International Law Concerning Friendly Relations
1970 states that ‘All States enjoy sovereign equality . . . In particular, sovereign
equality includes the following elements . . . (d) The territorial integrity and polit-
ical independence of the States are inviolable’.4
The International Court of Justice (ICJ, or ‘the Court’), as the principal judicial
organ of the United Nations and as the pre-eminent organ of international law, has
frequently been called upon to adjudge on territorial issues. Title to territory, as
well as consequences of title, have long formed an important part of the work of
international courts and tribunals generally, and of the ICJ in particular. That the
Court should have played an important role in clarifying the international law of
territory therefore comes as no surprise. We shall trace its influence through a series
of challenges.
2. Sovereignty, territory, and title
It was famously Judge Huber who emphasized in the Island of Palmas case that
‘sovereignty in relation to a portion of the surface of the globe is the legal condition
necessary for the inclusion of such portion in the territory of any particular state.’5
The ICJ has gradually built upon this somewhat cryptic formulation. The import-
ance of territorial sovereignty has been underlined, with the ICJ noting in the
Asylum case that ‘derogation from territorial sovereignty cannot be recognised
unless its legal basis is established in each case’,6 while recently underlining ‘the
central importance in international law and relations of state sovereignty over
4 GA Res 2625 (XXV) (24 October 1970), adopted without a vote (‘Declaration Concerning
Friendly Relations’).
5 Island of Palmas (n 3). 6 Asylum (Colombia v Peru) [1950] ICJ Rep 266, 275.
The Law of Territory 153
territory and of the stability and certainty of that sovereignty’.7 While, of course,
states are free to consent to modifications of the exercise of jurisdiction over their
territory,8 the starting point is always that limitations of the sovereignty of a state
over its territory are not to be presumed.9
The notion of territorial sovereignty, or the legal manifestation of state power
over a particular area, is a composite one. It encompasses a range of rights and
obligations. One may conclude, therefore, that territorial sovereignty is not an
absolute inflexible concept, but rather a collection of legal rights, powers, liabilities,
and duties, the exact extent of which will depend upon the precise circumstances.
However, that having been said, it is clear that not all rights or links will amount
to territorial sovereignty. For example, territorial sovereignty must be distinguished
from ownership or other non-sovereign private rights of property.10 Further, the
Court emphasized in the Western Sahara case that territorial sovereignty involved
far more than personal ties of allegiance between a people and a ruler and certain
rights relating to the land. The Court was prepared to acknowledge that ties of the
former category existed at the relevant time (the establishment of Spanish control in
the nineteenth century) between the Sultan of Morocco and some of the tribes
living in the Western Sahara, and that some rights of the latter type existed as
between the ‘Mauritanian entity’ and the territory of Western Sahara, but it
emphasized that no ties of territorial sovereignty were involved.11 This approach
was underlined in the Qatar v Bahrain case, where the Court noted that while there
may have been at different times ties of personal allegiance between the tribe and
ruler in question, there was no evidence that this fell within the category of the
exercise of ‘sovereign authority on behalf of ’ the particular ruler in the territory in
dispute.12
It is, however, clear that the concept of territorial sovereignty has significant
elements of relativity. The Court in the Western Sahara case noted that the legal
regime of the territory, including its legal relations with neighbouring countries,
could not be properly appreciated without reference to the special characteristics of
the territory itself.13 Accordingly, ‘It is in the context of such a territory and such a
social and political organization of the population that the Court has to examine the
question of the “legal ties” between Western Sahara and the Kingdom of Morocco
and the Mauritanian entity’.14 Further, the Court emphasized that ‘where
7 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/
Singapore) [2008] ICJ Rep 12, para 122. See also Asylum (n 6) 275.
8 See eg the Protocol Concerning Frontier Controls and Policing, Cooperation in Criminal Justice,
Public Safety and Mutual Assistance relating to the Channel Fixed Link, 1991, and the Israel-Jordan
Treaty of Peace, 1994, Annex I(b) and (c).
9 Dispute regarding Navigational and Related Right (Costa Rica v Nicaragua) [2009] ICJ Rep 213,
para 48.
10 Malaysia/Singapore (n 7) para 222.
11 Western Sahara [1975] ICJ Rep 12, paras 105–6, 152, and 162. See also MN Shaw, ‘The
Western Sahara Case’ (1978) 49 BYIL 119.

12 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain)
(Merits) [2001] ICJ Rep 40, para 86.

13 Western Sahara (n 11) para 87. 14 Western Sahara (n 11) para 89.
sovereignty over territory is claimed, the particular structure of a State may be a
relevant element in appreciating the reality or otherwise of a display of State activity
adduced as evidence of that sovereignty’, especially as no rule of international law
existed requiring the structure of a state to follow a particular pattern.15
The Court returned to this in Malaysia/Singapore. While referring to Singapore’s
assertion about the existence of a ‘traditional Malay concept of sovereignty’ based
on control over people rather than on control over territory, the Court noted that
‘sovereignty comprises both elements, personal and territorial’.16 There was no
need in the circumstances to say more than this, but the point was reaffirmed that
in certain situations in the pre-colonial era, the manifestation of sovereignty would
be interpreted flexibly.
The essence of territorial sovereignty is contained in the notion of title. The
Court has, however, made a distinction between the concept of title and legal title
as such. The former in general terms relates to both the factual and legal conditions
under which territory is deemed to belong to one particular authority or another
and refers to the existence of those facts required under international law to entail
the legal consequences of a change in the juridical status of a particular territory.17
As noted in the Burkina Faso/Mali case,18 the ‘concept of title’ comprehends both
any evidence which may establish the existence of a right and the actual source of
that right. It is thus a territorial matrix around which the notion of ‘legal title’ may
be understood. The latter phrase was defined during a discussion of the role of maps
in the Burkina Faso/Mali case.19 Legal or territorial title was said to be ‘a document
endowed by international law with intrinsic legal force for the purpose of establish-
ing territorial rights’. In this sense, title as documentary evidence, usually a
boundary treaty, is to be contrasted with other manifestations or claims of sover-
eignty such as effectivités (or the effective or practical exercise of sovereign power).
The Court returned to this question in El Salvador/Honduras 20 where it was
faced with the use of the term ‘title’ by litigating parties in ways making it unclear
which particular meaning was intended. The Court, in an attempt to further clarify
the relevant principles, repeated its statements from the Burkina Faso/Mali case and
15 Western Sahara (n 11) para 94. See also the Rann of Kutch case, where it was stated that ‘the rights
and duties which by law and custom are inherent in and characteristic of sovereignty present consider-
able variations in different circumstances according to time and place, and in the context of various
political systems’ (50 ILR 2, 501); and the Dubai/Sharjah arbitration award noting that ‘[t]he applicable
rules of international law relating to boundary disputes are those which are concerned with the
resolution of claims to sovereignty over territory. Yet to apply those rules, in their contemporary
form, to peoples which have had, until very recently, a totally different conception of sovereignty would
be highly artificial’ (91 ILR 543, 587). See also the Tribunal in Eritrea/Yemen (Phase One: Territorial
Sovereignty), noting ‘the sheer anachronism of attempting to attribute to such a tribal, mountain and
Muslim medieval society the modern Western concept of a sovereignty title’ (114 ILR 1, 116).
17 See eg Jennings (n 3) 4. See also I Brownlie, Principles of Public International Law (Oxford: OUP,
6th edn 2003) 119.

18 Frontier Dispute (Burkina Faso/Mali) [1986] ICJ Rep 554, para 18.
19 Burkina Faso/Mali (n 18) para 54.
20 Land, Island and Maritime Frontier (El Salvador/Honduras: Nicaragua Intervening) [1992] ICJ
Rep 351, paras 44 –5.

then added that title, in the sense of the source of rights at the international level,
could also derive from succession of the states in question from the colonial
sovereign (Spain), while the extent of territory would be determined by the uti
possidetis juris.21 Further, title could be based upon the domestic legislation of the
colonial power in view of the importance of succession. The Court in addition drew
attention to the significance of what it termed ‘colonial effectivités’, defined in
Burkina Faso/Mali as ‘the conduct of the administrative authorities as proof of
the effective exercise of territorial jurisdiction in the region during the colonial
period’.22
Accordingly, ‘title’ is to be understood as the legal categories providing for
international acceptance of sovereign ownership of the territory in question. Such
categories commence with ‘legal title’ narrowly defined—pertinent documentary
evidence, primarily boundary treaties—and move to succession of states with
territorial sovereignty or ownership devolving from one recognized sovereign to
another. If necessary in the circumstances, relevant authoritative practice by the
previous sovereign is incorporated. This understanding informs the Court’s juris-
prudence on specific aspects of the law of territory.
3. Pre-colonial title
The ICJ has recognized and confirmed the existence of sovereign title with regard to
territories that subsequently fell under colonial rule. In the case of entities that were
already regarded as having international legal status and thus participating in the
international community, this posed no particular issue or difficulty, so that treaties
of protection entered into by colonial powers with such territories as Morocco,
Tunisia, and Madagascar (with France) or Bahrain and Qatar (with Great Britain)
accepted the sovereign status in international law of the newly protected entities.23
Such status thereby continued. However, the process of colonization in sub-
Saharan Africa proceeded upon a different basis. In the vast majority of cases,
colonial control was established through treaties of protection signed not with
recognized sovereign states but with ‘important indigenous rulers exercising local
rule over identifiable areas of territory’.24
The Court in Cameroon v Nigeria reaffirmed the position it adopted in Western
Sahara, namely that in territories that were not terra nullius, but were inhabited by
tribes or peoples having a social and political organization, ‘agreements concluded
with local rulers . . . were regarded as derivative roots of title’.25 In other words,
such entities, while not being at the time recognized as states, did possess an
international status. They did not lack consequence in this process but rather
21 See further, 6. 22 Burkina Faso/Mali (n 18) para 63.

23 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial
Guinea Intervening) [2002] ICJ Rep 303, para 205.
24 Cameroon v Nigeria (n 23).
25 Western Sahara (n 11) para 80. See also Island of Palmas (n 3) 858–9.
constituted elements of which international law had to take account. Such entities
were capable of holding title to territory and transmitting such title and thus were
ex post facto (if not in reality at the time) accepted as sub-state participants in the
international legal system with personality.
This may be seen as a precursor of the approach which led to the establishment of
the right to self-determination. In any event, it marked an acceptance of the validity
of the pre-colonial title, although not of sovereignty and statehood as then perceived
by the international community. The Court may thus be seen as putting forward an
additional justification for the international legal right of self-determination.
4. Validity of colonial title
For better or worse, international law revolves upon the axis of change and stability
with relative caution. Nowhere is this better illustrated than with the difficult
question of the validity and legality of colonial title. Few today would justify on
the ethical level the process of colonization, whereby European states acquired
overseas territories through various means in a dynamic expansionist phase from
the fifteenth century. Of course, non-European states also engaged in territorial
expansion in various periods of their history and also conquered and occupied
territory contrary to the will of the indigenous population, but our inquiry is
necessarily constrained.
It has long been realized that simply turning back the clock and seeking to return
title and sovereignty to the pre-colonial entities would be extraordinarily difficult
and destabilizing, save where a clearly identified prior sovereign indeed possessed
such title over the territory in question. However, even in this case, the principle of
self-determination and the will of the people would constitute a relevant and
decisive factor.26 Accordingly, the international community has adopted the view
that colonial titles validly acquired under the law of the time would remain valid.
This has involved as a necessary concomitant that boundaries validly drawn at the
relevant time would so continue. Partly this has been due to the need for, and the
principle of, the stability of boundaries. The Court declared in the Temple of Preah
Vihear case that: ‘when two countries establish a frontier between them, one of the
primary objects is to achieve stability and finality’,27 while in Libya/Chad it was
emphasized that: ‘[o]nce agreed the boundary stands, for any other approach would
vitiate the fundamental principle of the stability of boundaries, the importance of
which has been repeatedly emphasized by the Court.’28
This approach has been reflected in the general rule, going beyond questions
as to colonial title as such, stating that a claim or situation or title or treaty29 has to
26 See further, 5.
27 Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep 6, 34.
28 Territorial Dispute (Libya/Chad) [1994] ICJ Rep 6, para 72. See also Beagle Channel (Argentina v
Chile) (1977) 21 RIAA 52, 88 and Dubai/Sharjah 91 ILR 543, 578.

29 See eg Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Rep 6, 37.
be examined according to the conditions and rules in existence at the time it was
made and not at a later date.30 This is the intertemporal law.31 For example, in the
seminal Island of Palmas case,32 the Spanish claim to title by discovery, which the
United States declared it had inherited, had to be tested in the light of international
legal principles in the sixteenth century when the discovery was made. This was
noted by the Court in the Minquiers and Ecrehos case, where it was pointed out that
an alleged feudal title to the islands in question which had been deemed of no
current legal effect, would need to have been ‘replaced by another title valid
according to the law of the time of replacement’.33 This aspect of the principle is
predicated upon a presumption of, and need for, stability.34
But it was also noted in Island of Palmas that while the creation of particular
rights was dependent upon the international law of the time, the continued
existence of such rights depended upon their according with the evolving condi-
tions of a developing legal system, although this stringent test would not be utilized
in the case of territories with an ‘established order of things’.35 How far this aspect
of the principle of international law may be extended is highly controversial. The
better view is to see it as one element in the bundle of factors relevant to the
determination of effective control, but one that must be applied with care.36
Of relevance to intertemporal law is the principle of self-determination,37 but
while the evolution of this norm rendered untenable the argument for the con-
tinued sovereignty of the colonial power over the colonial territory without the
30 See eg Affaire des Grisbadarna (Norway/Sweden) (1909) 11 RIAA 147; Eastern Greenland (1933)
PCIJ Ser A/B No 53, 46; and Libya/Chad (n 28) para 73.
31 See also Shaw (n 11) 152–3; Jennings (n 3) 28–31; TO Elias, ‘The Doctrine of Intertemporal
Law’ (1980) 74 AJIL 285; Oppenheim’s International Law (n 1) 1281–2; G Fitzmaurice, The Law and
Procedure of the International Court of Justice (Cambridge: CUP, 1986) vol I,135; H Thirlway, ‘The
Law and Procedure of the International Court of Justice 1960–1989 (Part One)’ (1989) 60 BYIL 4,
128; R Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 ICLQ
501; and DW Greig, Intertemporality and the Law of Treaties (British Institute of International and
Comparative Law, 2001) 108 ff.
32 Island of Palmas (n 3) 103.
33 Minquiers and Ecrehos (France v UK) [1953] ICJ Rep 47, 56.
34 See eg Eritrea/Yemen (n 15) 46 and 115; Eritrea/Ethiopia (2002) 130 ILR 1, 34; Cameroon
v Nigeria (n 23) paras 203–5.

35 Island of Palmas (n 3) 839–45. See also M Sørensen, ‘Le problème dit du droit intertemporal
dans l’ordre international’, Annuaire de l’Institut de Droit International (Basle, 1973) 4 ff, and
subsequent discussions, ibid, 50 ff. See also the Resolution adopted by the Institut de Droit Inter-
national, Annuaire de l’Institut de Droit International, 1975, 536 ff. Note that the 1970 Declaration on
Principles of International Law (n 4) provides that the concept of non-acquisition of territory by force
was not to be affected inter alia by any international agreement made prior to the Charter and valid
under international law.
36 It is also to be noted in passing that the doctrine of intertemporal law has a wider application than
the law of territory. For example, much consideration has been given to the interpretation of treaties.
The Court in the Aegean Sea Continental Shelf case declared that the phrase ‘disputes relating to the
territorial status of Greece’ in a Greek reservation to the 1928 Kellogg-Briand Pact had to be
interpreted ‘in accordance with the rules of international law as they exist today, and not as they
existed in 1931’. The evolution of international law concerning the continental shelf, therefore, had to
be considered, so that the territorial status of Greece was taken to include its continental shelf, although
that concept was completely unknown in the 1920s. Aegean Sea Continental Shelf (Greece v Turkey)
[1978] ICJ Rep 3, para 80.
37 See further, 5.
consent of the population, it cannot be concluded that colonial title as such was
avoided. On the contrary, state practice shows clearly that the successors to the
colonial territories based, and continue to base, their title upon the validity of the
colonial title coupled with self-determination.
In its functional examination of the concept of terra nullius in the Western Sahara
case, the Court declared that this concept constituted a legal term of art used in
connection with the mode of acquiring sovereignty over territory known as occu-
pation.38 It was also emphasized that the question had to be understood in the light
of the law in force at the time of the colonization. The Court focused on the state
practice of the era in question and concluded that this indicated that ‘territories
inhabited by tribes or peoples having a social and political organization were not
regarded as terra nullius’.39 Accordingly, sovereignty was acquired not unilaterally
through ‘occupation’ of terra nullius in the legal sense of the word by original title,
but through agreements concluded with local rulers.40
This, therefore, placed considerable stress on the numerous agreements con-
cluded between the European colonizing powers and the local communities within
the context of the acquisition of title. Such agreements can now be seen as having a
twofold function. In the first place, they constituted a colonial methodology for
conflict avoidance as between the colonial powers. In this sense, the colonial powers
agreed as between themselves that such agreements would have a preclusory
function in preventing claims to control or sovereignty or territory rights by one
colonial power faced by such agreements made by another power. In the second
place, such agreements were significant factors in the acquisition of title to the
territory in question. International law at the relevant time thus recognized that the
process of territorial acquisition concerned not just inter-state activities but also
relations between states and certain entities.41
The methodology often used in Africa in the process of title acquisition con-
cerned the signing of treaties of protection. In the Tunis and Morocco Nationality
Decrees case, the Permanent Court declared:
[T]he extent of the powers of a protecting State in the territory of a protected State depends,
first, upon the treaties between the protecting State and the protected State establishing the
Protectorate and secondly upon the conditions upon which the Protectorate has been
recognised by third Powers against whom there is an intention to rely on the provisions
of these Treaties. In spite of common features possessed by Protectorates under international
law they have individual legal characteristics resulting from the special conditions under
which they were created, and the stage of their development.42
As regards the creation of the French protectorate over Morocco by the Treaty of
Fez in 1912, for example, the ICJ noted that Morocco remained a sovereign state,
and had granted certain sovereign powers to France.43 Thus, much depends upon
38 Western Sahara (n 11) 79. 39 Western Sahara (n 11) para 80.

40 Western Sahara (n 11) para 80. 41 See 2.
42 Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4, 27.
43 Rights of Nationals of the United States of America in Morocco (France v USA) [1952] ICJ Rep
176, 188.
the particular circumstances of the case. In this classic conception of the institution
of the protectorate, should the protecting power exceed its authority as derived from
the relevant agreement, the protected party may treat this agreement as broken.44
The ICJ in Cameroon v Nigeria discussed in some detail the nature of the
relationship between Britain and the entities with which agreements had been
signed. It was noted that the term ‘treaties of protection’, denoting agreements by
which the protecting power asserted certain competences over the protected power,
had differential meanings depending on the circumstances. On the one hand, such
treaties were made with entities recognized as possessing sovereignty under inter-
national law, such as Morocco or Tunisia. On the other hand, the same term was
used in sub-Saharan Africa with regard to agreements made with entities not so
recognized. In such a case, the agreements in question were not treaties in the
traditional international legal sense; however, the Court was at pains to emphasize
that these accords had a certain status and were not to be regarded as nullities.45
Treaties of protection in this context were opposable to other colonial powers in
that they would preclude such states from seeking to assert title or control over the
areas covered by the particular agreement.
The Court accepted the argument of Cameroon that the Treaty of Protection
established what was termed a ‘colonial protectorate’ and that ‘in the practice of the
period, there was little fundamental difference at international level, in terms of
territorial acquisition between colonies and colonial protectorates’.46 Substantial
differences between the status of colony and that of colonial protectorate were
matters for the national law of the colonial power rather than international law. The
key element of the colonial protectorate was the assumption of external sovereignty
by the protecting state, which manifested itself through the power and capacity to
acquire and cede part of the territory by international treaty without intervention
by the population or entity in question.
The Court thus built upon the decision of Judge Huber in the Island of Palmas
case, in which it had been stated that a so-called treaty of protection was ‘not an
agreement between equals; it is rather a form of internal organization of a colonial
territory, on the basis of autonomy of the natives . . . And thus suzerainty over the
native States becomes the basis of territorial sovereignty as towards other members
of the community of nations’.47 In the Western Sahara case, the Court noted that in
territories that were not terra nullius, but inhabited by tribes or people having a
social and political organization, ‘agreements concluded with local rulers . . . were
regarded as derivative roots of title’.48 The Court in Cameroon v Nigeria concluded:
‘Even if this mode of acquisition does not reflect current international law, the
principle of intertemporal law requires that the legal consequences of the treaties
concluded at that time in the Niger delta be given effect today, in the present
44 See E de Vattel, The Law of Nations: or, Principles of the Law of Nature Applied to the Conduct and
Affairs and Nations and Sovereigns (1758) (B Kapossy and R Whatmore, eds, Indianapolis: Liberty
Fund, 2008), vol. I, } 16.
45 Cameroon v Nigeria (n 23) para 205. 46 Cameroon v Nigeria (n 23) para 202.
47 Island of Palmas (n 3) 858–59. 48 Western Sahara (n 11) para 80.
dispute.’49 It therefore followed that Britain obtained title to the territory in
question and was thus in a position to determine its boundaries with Germany.50
Accordingly, not only does international law—as confirmed and shaped by the
ICJ’s jurisprudence—accept the validity of the pre-colonial title, it also accepts the
validity of the colonial title.
5. Self-determination and the process of decolonization
The affirmation or re-affirmation of pre-colonial and colonial titles by the Court

may be best understood in the light not only of the need for stability of territorial
sovereignty, but also of the adoption of the concept of self-determination. This
espousal of the progressive evolution of the right of self-determination mitigated
the apparently regressive acceptance of former titles. The development of what
became known as decolonization focused tightly upon this principle in the inter-
national legal field. Drawing upon the confluence of the concepts of democracy and
nationalism in the nineteenth century in western Europe and its gradual expansion
eastwards and elsewhere in the following century, the principle inexorably entered
the legal domain.
While much of the actual practice in establishing and developing the principle
has taken place in the United Nations, the role of the Court in the process has
provided the essential stamp of authority and legitimacy. In terms of the progres-
sion of the concept in the UN, the following may be noted. The principle of self-
determination first appeared in the UN Charter in Article 1(2), where the develop-
ment of friendly relations among nations based upon respect for the principle of
equal rights and self-determination was noted as one of the Organization’s pur-
poses; Article 55 reiterated the phraseology. Resolution 1514 (XV), the Declaration
on the Granting of Independence to Colonial Countries and Peoples, adopted by
the General Assembly on 14 December 1960, stressed that ‘all peoples have the
right to self-determination; by virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural development’.
In 1966, the General Assembly adopted the International Covenants on Human
Rights.51 Both of these Covenants have an identical first article, declaring inter alia
that: ‘[a]ll peoples have the right to self-determination. By virtue of that right they
freely determine their political status’, while states parties to the instruments ‘shall
promote the realization of the right of self-determination and shall respect that right
in conformity with the provisions of the Charter of the United Nations’. The
Covenants came into force in 1976 and thus constitute binding provisions as
between the parties, as well as arguably constituting authoritative interpretations
of several human rights provisions in the Charter, including those dealing with
49 Cameroon v Nigeria (n 23) para 205. 50 Cameroon v Nigeria (n 23) para 209.
51 International Covenant on Civil and Political Rights, 999 UNTS 171; and International
Covenant on Economic, Social and Cultural Rights, 993 UNTS 3.
self-determination. The 1970 Declaration on Principles of International Law

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

57 Western Sahara (n 11) paras 150–2 (‘there did not exist between the territory of Western
Sahara and the Mauritanian entity any tie of sovereignty, or of allegiance of tribes, or of “simple
inclusion” in the same legal entity . . . [but] the nomadism of the great majority of the peoples of
Western Sahara gave rise to certain rights of a legal character between the tribes of the territory and
The Court moved one step further in the East Timor (Portugal v Australia)
case when it declared that ‘Portugal’s assertion that the right of peoples to self-
determination, as it evolved from the Charter and from United Nations practice,
has an erga omnes character, is irreproachable’.58 The Court emphasized that the
right of peoples to self-determination was ‘one of the essential principles of
contemporary international law’.59 However, in that case, the Court, while noting
that for both Portugal and Australia, East Timor (under Indonesian military
occupation since the invasion of 1975) constituted a non-self-governing territory
and pointing out that the people of East Timor had the right to self-determination,
held that the absence of Indonesia from the litigation meant that the Court was
unable to exercise its jurisdiction.60 These propositions as to self-determination
were reaffirmed by the Court in the Construction of a Wall Advisory Opinion61 and
held to apply to the Palestinian people, presumably on the basis of the history of
the Palestine mandate and the General Assembly’s resolution recommending the
partition of that territory into a Jewish state and an Arab state with only the former
having taken place,62 coupled with the range of UN resolutions affirming such a
right.63 More recently in the Kosovo case, the Court reaffirmed again its approach in
this line of cases.64
6. Uti possidetis
Linked with the principle of self-determination in decolonization questions is the
doctrine of uti possidetis juris, whereby the frontiers of the new entity are deemed to
be those that obtained during the colonial period in the absence of agreement to the
those of the neighbouring regions of the Bilad Shinguitti . . . [including] grazing pastures, cultivated
lands, and wells or water-holes in both territories . . . [thus] some rights relating to the lands through
which they migrated’).
58 East Timor (Portugal v Australia) [1995] ICJ Rep 90, para 29.
59 East Timor (n 58). See also Reference Re Secession of Quebec (1998) 161 DLR (4th) 385, 434–5,
where the Supreme Court of Canada, in answer to the question whether there existed in international
law a right to self-determination which would give Quebec the right unilaterally to secede, stated that
the principle of self-determination ‘has acquired a status beyond “convention” and is considered a
general principle of international law’.
60 East Timor (n 58) paras 37–8. The reason related to the principle that the Court is unable to
exercise jurisdiction over a state without the consent of that state. The Court took the view that
Portugal’s claims against Australia could not be decided without an examination of the position of
Indonesia, which had not consented to the jurisdiction of the Court.
Opinion) [2004] ICJ Rep 136, paras 87–8, 118, 122, 149, 155–6.
62 See GA Res 181 (II) (29 November 1947). See generally as to the Palestine question J Crawford,
The Creation of States in International Law (Oxford: OUP, 2nd edn 2006) 442 ff; A Shapira and
M Tabory (eds), New Political Entities in Public and Private International Law (Dordrecht: Martinus
Nijhoff, 1999); V Kattan (ed), The Palestine Question in International Law (British Institute of
International and Comparative Law, 2008); S Akram, M Dumper, M Lynk and I Scobbie (eds),
International Law and the Israeli-Palestinian Conflict (Abingdon: Routledge, 2011).
63 See eg Wall (n 61) 117–18.
Kosovo, [2010] ICJ Rep 403, para 79.

contrary.65 As regards boundaries that were already international boundaries be-

tween the colonial and a third power (whether or not colonial), continuation is
secured by the rule of state succession. However, where the new boundaries had
previously been internal colonial boundaries, their transposition into international
boundaries was achieved by virtue of the principle of uti possidetis. This principle
originated in Latin America in order to preclude any new claim by the European
powers to return to the continent on the basis of terra nullius, with the assertion
that the administrative divisions of the Spanish empire in South America were
deemed to constitute the boundaries for the newly independent successor states,
thus theoretically excluding any gaps in sovereignty which might precipitate
hostilities and encourage foreign intervention.66
The principle achieved its modern manifestation initially in the context of the
decolonization of Africa. The relevant resolution of the Organization of African
Unity in 1964 declared that colonial frontiers existing as at the date of independ-
ence constituted a tangible reality and that all member states pledged themselves to
respect such borders.67
Practice in Africa has reinforced the approach of emphasizing the territorial
integrity of the colonially defined territory—as seen by the widespread disapproval
of the attempted unilateral creation of secessionist states, whether in the former
Belgian Congo or Nigeria. However, consensual separation is a different matter and
the prime examples include Eritrea’s separation from Ethiopia68 and South Sudan’s
separation from Sudan.69 The principle was also evident in Asian practice.70 It is
against this background of international practice that the ICJ’s jurisprudence needs
to be seen. As with respect to self-determination, it may be said to have consoli-
dated and legitimized an international concept of major practical and conceptual
relevance.
The question of uti possidetis was discussed by a Chamber of the ICJ in
Burkina Faso/Mali,71 where it was affirmed that the principle had in fact developed
into a general concept of contemporary customary international law and was
unaffected by the emergence of the right of peoples to self-determination.72 In
the African context particularly, the purpose of the principle was ‘to prevent the
65 See generally MN Shaw, ‘The Heritage of States: The Principle of Uti Possidetis Today’ (1997)
67 BYIL 75; H Ghebrewebet, Identifying Units of Statehood and Determining International Boundaries
(Bern: Peter Lang, 2006); M Kohen, Possession contestée et souveraineté (Paris: Presses Universitaires
France, 1997).
66 See the Colombia-Venezuela Boundary Dispute (1922) 1 RIAA 223, 228; Beagle Channel (n 28)
81; and El Salvador/Honduras (n 20) para 307.

67 AHG/Res 16(1). See also SC Res 1234 (1999) which refers directly to OAU Resolution 16(1).
68 See SC Res 828 (26 May 1993).
69 See for the Comprehensive Peace Agreement of 2005 and preceding agreements, <http://unmis.
unmissions.org/Default.aspx?tabid=515> (accessed 29 December 2012). See also SC Res 1999

(13 July 2011) and UN Doc S/2011/418.
70 See eg Temple of Preah Vihear (n 27) and Rann of Kutch (n 15).
71 Burkina Faso/Mali (n 18). See also Frontier Dispute (Burkina Faso/Niger) Judgment of 16 April
2013 (<http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=bfn&case=149&k=f 9> (accessed

17 May 2013)) para 63.
72 Burkina Faso/Mali (n 18) paras 19–26.
independence and stability of new states being endangered by fratricidal struggles
provoked by the challenging of frontiers following the withdrawal of the adminis-
tering power’.73 The application of the principle has the effect of freezing
the territorial title existing at the moment of independence to produce what the
Chamber described as the ‘photograph of the territory’ at the critical date.74 The
Chamber, however, went further than emphasizing the application of the principle
to Africa. It declared that the principle applied generally and was logically con-
nected with the phenomenon of independence wherever it occurred in order to
protect the independence and stability of new states.75
The ICJ returned to the question in the El Salvador/Honduras case, noting that
‘uti possidetis juris is essentially a retrospective principle, investing as international
boundaries administrative limits intended originally for quite other purposes’,76
and again in Nicaragua v Honduras, where it stated further that the principle
extended not only to land territory, but also to offshore possessions and maritime
spaces.77 It was also noted in the former case that the jus referred not to inter-
national law but to the constitutional or administrative law of the pre-independ-
ence sovereign.78
Having established the existence and purpose of the principle, the key question is
whether this principle goes beyond the purely colonial context to apply to the
dissolution or dismemberment of independent states in part or in whole so as to
determine the boundaries of the new states. The alternative to such a principle,
positing the conversion of internal frontiers to international ones, is to rely on
effective control or ethnic identification with all the dangers that these imply. It
does, however, seem clear that practice demonstrates that the principle does have a
more general application. Such indeed was the tenor of the formulation by the
Court in Burkina Faso/Mali, and it was in this sense that the decision was
understood (and relied upon) in the work of other institutions called upon to
pronounce on boundaries of states emerging outside the colonial context.
This may be seen particularly with regard to the former USSR79 and the former
Yugoslavia. In the latter case, the Yugoslav Arbitration Commission, established by
73 Burkina Faso/Mali (n 18) para 20. 74 Burkina Faso/Mali (n 18) para 30.
75 Burkina Faso/Mali (n 18) para 20. The principle was described as follows: ‘The essence of the
principle lies in its primary aim of securing respect for the territorial boundaries at the moment when
independence is achieved. Such territorial boundaries might be no more than delimitations between
different administrative divisions or colonies all subject to the same sovereign. In that case, the
application of the principle of uti possidetis resulted in administrative boundaries being transformed
into international frontiers in the full sense of the term’ (para 23).
76 El Salvador/Honduras (n 20) para 43. See also Territorial and Maritime Dispute between Nicar-
agua and Honduras in the Caribbean Sea (Nicaragua v Honduras) [2007] ICJ Rep 659, para 154.
77 Nicaragua v Honduras (n 76) para 156. See also El Salvador/Honduras (n 20) paras 332–3.
78 El Salvador/Honduras (n 20) para 333. See also Territorial and Maritime Dispute (Nicaragua v
Colombia) Judgment of 19 November 2012, (<http://www.icj-cij.org/docket/files/124/17164.pdf>

(accessed 1 May 2013)) para 64.
79 See eg R Yakemtchouk, ‘Les conflits de territoires and de frontières dans les états de l’ex-URSS’
(1993) 39 AFDI 401. See also, with regard to the application of uti possidetis to the dissolution of the
Czech and Slovak Federal Republic, J Malenovsky, ‘Problèmes juridiques liés à la partition de la
tchécoslovaquie’ (1993) 39 AFDI 328.
the European Community and accepted by the states of the former Yugoslavia,
made several relevant comments. In Opinion No 2, the Arbitration Commission
declared that ‘whatever the circumstances, the right to self-determination must not
involve changes to existing frontiers at the time of independence (uti possidetis juris)
except where the states concerned agree otherwise’.80 In Opinion No 3, the Arbi-
tration Commission emphasized that, except where otherwise agreed, the former
boundaries (and here the Commission was dealing specifically with the internal
boundaries between Serbia and Croatia and Serbia and Bosnia and Herzegovina)
became frontiers protected by international law. This conclusion, it was stated,
derived from the principle of respect for the territorial status quo and from the
principle of uti possidetis. The Court’s formulation in Burkina Faso/Mali was
specifically recalled.81 It may also be noted that the Under-Secretary of State of
the British Foreign and Commonwealth Office stated in January 1992 that ‘the
borders of Croatia will become the frontiers of independent Croatia, so there is no
doubt about that particular issue. That has been agreed amongst the Twelve, that
will be our attitude towards those borders. They will just be changed from being
republican borders to international frontiers.’82
It is thus clear that, at the very least, modern international law as shaped by the
ICJ’s jurisprudence recognizes a presumption that, in the absence of evidence to the
contrary, internally defined units within a pre-existing sovereign state will come to
independence within the spatial framework of that territorially defined unit.83 Of
course, the doctrine depends upon the line in question being sufficiently clear prior
to its application and the territory in question belonging to the pre-independent
unit.84
The political reasons for this derive from the need to mitigate as far as possible
the resort to violence as the way to carve out boundaries in times of fundamental
change. The legal reasons relate to the need for respect for stability of territorial
arrangements as they move from pre-independence to post-independence struc-
ture. The ICJ, for example, referred particularly to ‘the permanence and stability of
the land frontier’ in the Tunisia/Libya Continental Shelf case85 and to the need for
‘stability and finality’ in the Temple of Preah Vihear case.86 In the latter case, the
Court emphasized that such stability and finality would be impossible if the
established boundary line could be ‘at any moment, and on the basis of a continu-
ously available process, be called in question . . . Such a process could continue
80 92 ILR 168. See also A Pellet, ‘Note sur la Commission d’Arbitrage de la Conférence Europé-
enne pour la Paix en Yugoslavie’ (1991) 37 AFDI 329; ‘Activité de la Commission d’Arbitrage de la
Conférence Européenne pour la Paix en Yugoslavie’, AFDI, 1992, 220.
81 92 ILR 171.
82 See ‘United Kingdom Materials on International Law’ (1992) 63 BYIL 719.
83 See eg MN Shaw, ‘Peoples, Territorialism and Boundaries’ (1997) 3 EJIL 477, 504, but cf
S Ratner, ‘Drawing a Better Line: Uti Possidetis and the Borders of New States’ (1996) 90 AJIL 590,
613 ff; M Craven, ‘The European Community Arbitration Commission on Yugoslavia’ (1995) 65
BYIL 333, 385 ff.
84 See eg Nicaragua v Colombia (n 78) para 65.
85 [1982] ICJ Rep 18, 66. See also Grisbadarna (n 30) 130.
86 Temple of Preah Vihear (n 27) 33.
indefinitely, and finality would never be reached . . . Such a frontier, far from being
stable, would be completely precarious.’87 In the Libya/Chad case, the Court
underlined that the ‘fixing of a frontier depends on the will of the sovereign States
directly concerned’88 and further noted: ‘Once agreed, the boundary stands, for any
other approach would vitiate the fundamental principle of the stability of bound-
aries, the importance of which has been repeatedly emphasized by the Court.’89
Such considerations are not limited to the African Continent.
7. Title and boundary treaties
In discussing the issue of territorial acquisition, special reference must be made to

boundary treaties, whereby either additional territory is acquired or lost or uncer-
tain boundaries are clarified by agreement between the states concerned. Boundary
treaties as such constitute a root of title in themselves.90 As such they affect the
critical date, for such an agreement between the relevant parties after independence
affecting the territory in dispute will shift the pertinent date of crystallization of
territorial rights.91 It is accepted that boundary treaties constitute a special kind of
treaty in that they establish an objective territorial regime valid erga omnes.92 As the
ICJ has emphasized, such a regime will not only create rights binding also upon
third states, but will exist outside of the particular boundary treaty and thus will
continue even if the treaty in question itself ceases to apply.93 The reason for this
exceptional approach is to be found in the need for the stability of boundaries.94
Further, the establishment or confirmation of a particular boundary line by way of
referring in a treaty to an earlier document (which may or may not be binding of
itself ) laying down a line is also possible and as such invests the line in question
with undoubted validity.95 Indeed, this earlier document may also be a map upon
which a line has been drawn.
This being so, many boundary disputes in fact revolve around the question of
treaty interpretation. It is accepted by the Court that a treaty should be inter-
preted in the light of Articles 31 and 32 of the Vienna Convention on the Law of
Treaties 1969,96 ‘in good faith, in accordance with the ordinary meaning to be
given to its terms in their context and in the light of its object and purpose’.97
Essentially the aim is to find the ‘common will’ of the parties, a concept which
87 Temple of Preah Vihear (n 27) 34. See also Aegean Sea Continental Shelf (n 36) para 85; the Rann
of Kutch case (n 15) 520; and the Beagle Channel case (n 28).
88 Libya/Chad (n 28) para 45. 89 Libya/Chad (n 28) para 72. 90 See 2.
91 See El Salvador/Honduras (n 20) para 67.
92 See Eritrea/Yemen (n 15) para 153.
93 See Libya/Chad (n 28) para 73. See also Territorial and Maritime Dispute (Nicaragua v Colombia)
(Preliminary Objections) [2007] ICJ Rep 832, 861; Costa Rica v Nicaragua (n 9) paras 64–6.
94 Libya/Chad (n 28) para 72; Temple of Preah Vihear (n 27) 34.
95 See Libya/Chad (n 28) para 45. See also Cameroon v Nigeria (n 23) para 50.
96 22 May 1969, 1155 UNTS 331.
97 Libya/Chad (n 28) para 41.
includes consideration of the subsequent conduct of the parties.98 Since many of

the boundary treaties that need to be interpreted long pre-date the coming into
force of the Vienna Convention,99 the problem of the applicability of its provi-
sions has arisen. Courts have taken the view that the Convention in this respect at
least represents customary international law, thus apparently obviating the prob-
lem.100 More generally, the difficulty in seeking to interpret both general concepts
and geographical locations used in early treaties in the light of modern scientific
knowledge has posed difficulties. In the Botswana/Namibia case, the Court, faced
with the problem of identifying the ‘main channel’ of the River Chobe in the light
of an 1890 treaty, emphasized that ‘the present-day state of scientific knowledge’
could be used to illuminate terms of that treaty.101 Judge Higgins in her Declar-
ation, however, cautioned that the task of the Court was to ‘decide what general
idea the parties had in mind, and then make reality of that general idea through
the use of contemporary knowledge’ rather than decide in abstracto ‘by a mech-
anistic appreciation of relevant indicia’.102
In line with this, in the Cameroon v Nigeria (Equatorial Guinea Intervening) case,
the Court, in seeking to determine the location of the mouth of the River Ebeji,
emphasized that it ‘must seek to ascertain the intention of the parties at the
time’.103 This principle of ‘contemporaneity’ in turn seems to have influenced
the approach of recent arbitrations.104
In interpreting a boundary treaty, particularly in seeking to resolve ambiguities,
the subsequent practice of the parties will be relevant. Even where such subsequent
practice cannot in the circumstances constitute an authoritative interpretation of
the treaty, it may be deemed to be ‘useful’ in the process of specifying the frontier in
question.105 However, where the boundary line as specified in the pertinent
instrument is clear, it cannot be changed by a court in the process of interpreting
delimitation provisions.106
98 See the Argentina/Chile Frontier Award (La Palena) 38 ILR 10, 89 and the Ethiopia/Eritrea case
(n 34).
99 See Art 4 of the Convention providing that the Convention applies only to treaties concluded
after the coming into force of the Convention itself (27 January 1980).
100 See eg Libya/Chad (n 28) para 41; the Beagle Channel case (n 28) 84; and Kasikili/Sedudu Island
(Botswana v Namibia) [1999] ICJ Rep 1045, para 18. But cf the Separate Opinion of Judge Oda, in the
same case, at 1118. See also Greig (n 31).
101 Botswana/Namibia (n 100) para 20. See also the Argentina/Chile Award (La Laguna del Desierto)
113 ILR 1, 76.

102 Botswana/Namibia (n 100) 1114.
103 Cameroon v Nigeria (n 23) para 59.
104 See notably the Decision of 13 April 2002 of the Ethiopia/Eritrea Boundary Commission (n 34),
21 ff and 61 ff, in which the Boundary Commission held that a treaty should be interpreted by
reference to the circumstances prevailing when the treaty was concluded. In particular, the determin-
ation of a geographical name (whether of a place or a river) depended upon the contemporary
understanding of the location to which that name related at the time of the treaty. However, in
seeking to understand what that was, reference to subsequent practice and to the objects of the treaty
was often required.
8. Relevance of the exercise of effective authority (effectivités)
In the absence of a definitive ‘legal title’ such as a boundary treaty or judicial

boundary award, the exercise of effective authority will often constitute the crucial
element. As Huber argued, ‘the actual continuous and peaceful display of state
functions is in case of dispute the sound and natural criterion of territorial
sovereignty’.107 The ICJ’s jurisprudence suggests that such activity in establishing
a claim to territory must be performed by the state in the exercise of sovereign
powers (à titre de souverain)108 or by individuals whose actions are subsequently
ratified by their state,109 or by corporations or companies permitted by the state to
engage in such operations and thus performed on behalf of the sovereign.110
Otherwise, any acts undertaken are of no legal consequence.111
The question was raised before the Court in the Minquiers and Ecrehos case, in
terms other than ‘title’ and ‘effectivités’, though in reality covering the same issues.
There the Court was faced with arguments by both the United Kingdom and
France as to legal title of the islets and rocks of the Ecrehos and Minquiers groups
from 1066. The Court found that neither state had demonstrated such legal title
and proceeded to note: ‘What is of decisive importance, in the opinion of the
Court, is not indirect presumptions deduced from events in the Middle Ages, but
the evidence which relates directly to the possession of the Ecrehos and Minquiers
groups.’112 This formulation indeed prefigures the approach later adopted by the
Court in the Burkino Faso/Mali case.
However, international jurisprudence also clarifies that, although it must be
effective, control does not necessarily have to amount to possession and settlement
of all of the territory claimed. Precisely what acts of sovereignty are necessary to
found title will depend in each instance upon all the relevant circumstances of the
case, including the nature of the territory involved, the amount of opposition (if
any) that such acts on the part of the claimant state have aroused, and international
reaction.113
Accordingly, many titles will be deemed to exist not as absolute but as relative
concepts. The state succeeding in its claim for sovereignty over terra nullius over the
claims of other states will in most cases have proved not an absolute title, but one
relatively better than that maintained by competing states and one that may take
107 Island of Palmas (n 3) 840. The Tribunal in Eritrea/Yemen noted that ‘[t]he modern inter-
national law of the acquisition (or attribution) of territory generally requires that there be: an
intentional display of power and authority over the territory, by the exercise of jurisdiction and state
functions, on a continuous and peaceful basis’ (Eritrea/Yemen (n 15) 69).
108 That is, those made as a ‘public claim of right or assertion of sovereignty . . . as well as legislative
acts’, Eritrea/Yemen (n 15) 69. See also Minquiers and Ecrehos (n 33) 65, 69 and 71; Malaysia/Singapore
(n 7) para 121. Such acts need to relate clearly to the territory in question: Sovereignty over Pulau
Ligitan and Pulau Sipadan (Indonesia/Malaysia) [2002] ICJ Rep 625, para 136.
109 Indonesia/Malaysia (n 108) paras 140, 142. 110 Botswana/Namibia (n 100) para 98.
111 See Judge McNair in Anglo-Norwegian Fisheries (UK v Norway) [1951] ICJ Rep 116, 184.
112 Minquiers and Ecrehos (n 33) 57.
113 See eg Nicaragua v Colombia (n 78) para 80.
into account issues such as geography and international responses.114 The Court
noted in the Eastern Greenland case that:
[i]t is impossible to read the records of the decisions in cases as to territorial sovereignty
without observing that in many cases the tribunal has been satisfied with very little in the
way of the actual exercise of sovereign rights, provided that the other state could not make
out a superior claim. This is particularly true in the case of claims to sovereignty over areas in
thinly populated or unsettled countries.115
The Court returned to this point in Malaysia/Singapore, where it was noted that
‘international law is satisfied with varying degrees in the display of State authority,
depending on the specific circumstances of each case’.116 This is, of course,
contingent upon the existence, nature and strength of any competing claims. The
more serious such a rival claim, the more extensive the state practice would need to
be in order to establish title.117
However, it is important that the state activities in question relate to the territory
in question and are not too general or non-specific. The Court made this point
clearly in Indonesia/Malaysia, noting:
it can only consider those acts as constituting a relevant display of authority which leave no
doubt as to their specific reference to the islands in dispute as such. Regulations or
administrative acts of a general nature can therefore be taken as effectivités with regard to
Ligitan and Sipadan only if it is clear from their terms or their effects that they pertained to
these two islands.118
As to the meaning of effectivités, the Court declared in Nicaragua v Honduras that:
[a] sovereign title may be inferred from the effective exercise of powers appertaining to the
authority of the State over a given territory. To sustain a claim of sovereignty on that basis, a
number of conditions must be proven conclusively. As described by the Permanent Court of
International Justice, ‘a claim to sovereignty based not upon some particular act or title such
as a treaty of accession but merely upon continued display of authority, involves two
elements each of which must be shown to exist: the intention and will to act as sovereign,
and some actual exercise or display of such authority’ (Legal Status of Eastern Greenland,
Judgment, 1933, PCIJ, Series A/B, No 53, pp 45–46).119
The relationship between title and effectivités was authoritatively addressed by the
Court in its influential decision in Burkina Faso/Mali. The Court declared that
where there is a valid legal title, this will have pre-eminence and effectivités may play
114 See Island of Palmas (n 3) 840. See also Eastern Greenland (n 30) 46; Affaire de l’île de Clipperton
(Mexico v France) (1931) 2 RIAA 1105; Minquiers and Ecrehos (n 33); and Nicaragua v Honduras
(n 76) paras 172–4.
115 Eastern Greenland (n 30) 45–6. See also Qatar v Bahrain (Merits) (n 12) 197–8; and Indonesia/
Malaysia (n 108) para 134. Note also Malaysia/Singapore (n 7) paras 60–9.

117 Malaysia/Singapore (n 7) paras 67–8.
118 Indonesia/Malaysia (n 108) para 136. See also Nicaragua v Honduras (n 76) paras 174–5.
119 Nicaragua v Honduras (n 76) para 172. See also Nicaragua v Colombia (n 78) para 82 as to
examples of different categories of effectivités, ranging from public administration and legislation to
regulation of economic activities, public works, law enforcement measures, naval visits, search and
rescue operations, and consular representation.
a confirmatory role, but where the effectivités are in contradiction to the title, the
latter will have pre-eminence. In the absence of any legal title, effectivités must
invariably be taken into consideration, while where the legal title is not capable of
exactly defining the relevant territorial limits, effectivités then play an essential role
in showing how the title is interpreted in practice.120 The Court reaffirmed this in
El Salvador/Honduras (Nicaragua Intervening) and noted that these principles
applied to both colonial and postcolonial effectivités.121
The point was discussed further in Cameroon v Nigeria in the context of
Nigerian activities in the area around Lake Chad that were in the nature of
sovereign efforts, such as the organization of public health and education facil-
ities, policing, and the administration of justice. However, the Court accepted
that Cameroon possessed pre-existing legal title to the area in question and
concluded that, ‘where the territory which is the subject of the dispute is
effectively administered by a State other than the one possessing the legal title,
preference should be given to the holder of the title’.122 In Indonesia/Malaysia, the
Court turned to a consideration of effectivités as an independent and separate issue
only after deciding that neither of the parties had a treaty-based title to the
territories in question.123
The primacy of legal title over effective possession as a basis of sovereignty was
again underlined by the Court in Benin/Niger,124 while adding that in the event
that effectivités do not co-exist with any legal title, the former must be taken into
consideration.125 It was concluded clearly and persuasively, and in terms rather
stronger than those used in Cameroon v Nigeria, that ‘effectivités can only be of
interest in a case in order to complete or make good doubtful or absent legal titles,
but can never prevail over titles with which they are at variance’.126
The fact that state practice in the context of title to territory may be critical was
emphasized by the Court in Malaysia/Singapore and coupled with the consequential
need to ensure that such conduct, or effectivités, existed. It was underlined that:
any passing of sovereignty over territory on the basis of the conduct of the Parties . . . must be
manifested clearly and without any doubt by that conduct and the relevant facts. That is
especially so if what may be involved, in the case of one of the Parties, is in effect the
abandonment of sovereignty over part of its territory.127
Having said that, the Court noted an exception and appeared in practice to
interpret it liberally. It noted that agreement to pass sovereignty may occur not
only by treaty, but also by way of tacit agreement, arising from the conduct of the
relevant parties. International law did not impose any particular form; instead,
emphasis was placed upon the intentions of the parties.128 This was then linked to
120 Burkina Faso/Mali (n 18) para 63. 121 El Salvador/Honduras (n 20) para 61.
122 Cameroon v Nigeria (n 23) para 68 (citing Burkina Faso/Mali (n 23) para 75).
123 Indonesia/Malaysia (n 108) para 127.
124 Frontier Dispute (Benin/Niger) [2005] ICJ Rep 90, para 47.
125 Frontier Dispute (Benin/Niger) (n 124) paras 75–6. See also Libya/Chad (n 28) para 76.
126 Frontier Dispute (Benin/Niger) (n 124) para 141. 127 Malaysia/Singapore (n 7) para 122.
acquiescence, which had been defined by the Court in the Gulf of Maine case as
‘equivalent to tacit recognition manifested by unilateral conduct which the other
party may interpret as consent’.129 The Court noted that there may be circum-
stances where sovereignty may pass where the title holder does not respond to
asserted sovereign acts by another state.130 This was deemed to have occurred
with regard to Pedra Branca/Pulau Batu Puteh, where title was deemed to have
passed from Malaysia to Singapore (or their predecessors in title) on the basis of
acts of a sovereign nature coupled with the failure to respond.131 However, it is
far from clear in law whether this passing of sovereignty took place by way of
acquiescence or by way of tacit agreement. They are not the same and any easing
of the principal rule requiring the clear consent of the party passing title to
territory is to be approached with some caution.132 Indeed, the Court had in
Cameroon v Nigeria adopted a clear line as to the impossibility of acquiring title
to territory from the recognized sovereign without consent or clearly established
acquiescence.133
The problem with Malaysia/Singapore is that the Court characterized the rela-
tionship between sovereign acts and acquiescence/tacit agreement as one of ‘con-
vergent evolution of the positions of the Parties regarding title’134 and could be said
to have been rather less rigorous than demanded by its own requirement that any
passing of sovereignty on the basis of conduct had to be ‘manifested clearly and
without any doubt’, especially when abandonment of sovereignty was essentially
argued.135 The facts, it may be suggested, do not adequately support the invocation
of the two doctrines.
Of course, not all state practice may found title and not all circumstances will be
capable of generating sovereignty. The Court has decided that ‘historical consoli-
dation’, whatever its status as a doctrine, cannot prevail over an established title,136
while geographic proximity as such is an insufficient basis for sovereignty.137
To conclude this section, it may be summarized that examples of state practice
may confirm or complete—but not contradict—legal title established, for example,
by boundary treaties. In the absence of any clear legal title to an area, state practice
comes into its own as a law-establishing mechanism. But its importance is always
contextual in that it relates to the nature of the territory and the nature of
competing state claims.138 Consent to the passing of title cannot be presumed; it
must be established, save in the light of very clear evidence of acquiescence, and this
should not be accepted lightly.
129 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/USA) [1984] ICJ Rep
246, para 130.

130 Malaysia/Singapore (n 7) para 121. 131 Malaysia/Singapore (n 7) 96.
132 See the Joint Dissenting Opinion of Judges Simma and Abraham, Malaysia/Singapore (n 7) 117
and 119–20.
133 Cameroon v Nigeria (n 23) paras 62 ff. 134 Malaysia/Singapore (n 7) paras 274–6.
135 Malaysia/Singapore (n 7) para 122. 136 Cameroon v Nigeria (n 23) para 65.
137 See eg Nicaragua v Honduras (n 76) para 161.
138 See also the general statement of principle in Eritrea/Ethiopia (n 34) 42.
9. Territorial integrity and secession in the

post-independence situation
While the debate about effectivités and title may appear to involve a clash between
factual and normative positions, the ICJ has also been faced with conflicts between
competing legal concepts relating to territory. The most obvious example concerns
the relationship between territorial integrity and claims to secession based on self-
determination. This is one of the major debates of the law relating to territory, and
has given rise to controversy and conflict. As a general matter, it seems fair to say
that the international legal position has been shaped by international practice, and
by the United Nations in particular, rather than the Court’s jurisprudence.
International practice suggests that self-determination cannot be used to further
larger territorial claims in defiance of internationally accepted boundaries of sover-
eign states.139 While clearly established as a legal rule in terms of the rights of
peoples under colonial domination140 to choose their own political status, self-
determination clearly does not confer the right to secede upon identifiable groups
139 The legal position was summed up by eg the Canadian Supreme Court in the Quebec case, in
which it was noted that ‘international law expects that the right to self-determination will be exercised
by peoples within the framework of existing sovereign states and consistently with the maintenance of
the territorial integrity of those states’, and that the right to unilateral secession ‘arises only in the most
extreme of cases and, even then, under carefully defined circumstances’ ((n 59) 436 and 438). See
further J Crawford, ‘State Practice and International Law in Relation to Secession’ (1998) 69 BYIL 85;
and A Bayefsky, Self-Determination in International Law: Quebec and Lessons Learned (Leiden: Brill,
2000).
140 It is sometimes argued that self-determination implies a right to independent statehood also in
cases of foreign occupation: see eg the view of the Canadian Supreme Court in the Quebec case
(n 59); and also GA Res 55/2 (8 September 2000) (‘the UN Millennium Declaration’), para 4 (‘the
right to self-determination of peoples which remain under colonial domination and foreign occupa-
tion’), and Art 1(4) of the 1977 Additional Protocol I to the 1949 Geneva Convention (‘The
situations referred to in the preceding paragraph [ie international armed conflicts] include armed
conflicts in which peoples are fighting against colonial domination and alien occupation and against
racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the
United Nations and the Declaration on Principles of International Law concerning Friendly Rela-
tions and Co-operation among States in accordance with the Charter of the United Nations’).
However, this approach is controversial since the fundamental rule where one state occupies the
territory of another state is that the latter retains sovereignty even if it loses possession. Therefore, to
recognize that the population of the area so occupied may have the choice to leave its sovereign state
would operate so as to undermine the international legal rules on territorial sovereignty. If, however,
the right to self-determination is defined in foreign occupation cases to mean the right of the people
to be free of such occupation within the framework of the territorial sovereignty of the dispossessed
sovereign and within the context of the application of international humanitarian law, which accepts
belligerent occupation as a legitimate possessory status pending peace, then this is far less controver-
sial. Practice supports this approach: see eg the cases of Afghanistan after the Soviet invasion,
Cambodia following the Vietnamese invasion, and the Baltic states prior to the demise of the Soviet
Union. See A Cassese, Self-Determination of Peoples (Cambridge: CUP, 1995) 90 ff. See also Armed
Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168, paras 25 (DRC’s first
submission) and 28, where the issue was raised in the context of the violation of the principle of non-
intervention, and paras 25 (DRC’s third final submission) and 245, where the issue was raised in the
context of the illegal exploitation of natural resources. The Court made no specific finding with
regard to self-determination.
within already independent states.141 As a rule, it needs to be congruent with the

foundational principles of territorial sovereignty and territorial integrity. The only
arguable exception to this rule that the right to external self-determination applies
only to colonial situations might be where the group in question is subject to
‘extreme and unremitting persecution’ coupled with the ‘lack of any reasonable
prospect for reasonable challenge’,142 but even this is controversial, not least in view
of definitional difficulties.143
The Court has not had occasion directly to shape international law on this issue.
However, its jurisprudence affirms that external self-determination fits in with the
concept of territorial integrity,144 as it cannot apply once a colony or trust territory
attains sovereignty and independence—except, arguably, in extreme circumstances.
This should, however, not be taken to mean that self-determination claims in the
widest sense are completely irrelevant to disputes about territory. The Court’s case
law, for example, suggests that the interests of the local population ought to be
taken into account where the determination of the boundary has resulted in a shift
in the line, at least in the view of one of the parties.145 To be clear, this operates at
the level of human rights within the territory of the state and not as a mechanism to
override a state’s legal title to territory.
The prevalent construction of self-determination as not involving a right of
secession reflects the fundamental importance of territorial integrity as a key
element of the overarching concept of the sovereignty of states. Indeed, the ICJ
has recently emphasized that ‘the principle of territorial integrity is an important
part of the international legal order and is enshrined in the Charter of the United
Nations’,146 thus consolidating the international legal position. Interestingly, in the
same proceedings, the Court endorsed the view that ‘the scope of the principle of
territorial integrity is confined to the sphere of relations between States’.147
141 See the Quebec case (n 59) 436.

142 Cassese (n 140) 120. See also T Musgrave, Self-Determination and National Minorities (Oxford:
OUP, 1997) 188 ff; J Castellino, International Law and Self-Determination (Dordrecht: Martinus
Nijhoff, 2000); K Knop, Diversity and Self-Determination in International Law (Cambridge: CUP,
2002) 65 ff, 470–3. See further MG Kohen (ed), Secession: International Law Perspectives (Cambridge:
CUP, 2006).
143 The Court in the Quebec case, citing Cassese, Self-Determination (n 140), suggested that the
right to external self-determination (ie secession) might apply to cases of foreign occupation and as a
last resort where a people’s right to internal self-determination (ie right to public participation, etc) was
blocked: (n 59) 438 ff.
144 This analysis is supported by eg Burkina Faso/Mali (n 18).
145 See, with regard to the preservation of acquired rights, El Salvador/Honduras (n 20) para 66.
See also Cameroon v Nigeria (n 23) paras 120–4. In particular, the Court stated in relation to the
Bakassi peninsula and Lake Chad regions, which contain Nigerian populations, that ‘the implementa-
tion of the present judgment will afford the parties a beneficial opportunity to co-operate in the
interests of the population concerned, in order notably to enable it to continue to have access to
educational and health services comparable to those it currently enjoys’ (para 316). The Court also
referred to the commitment of the Cameroon Agent made during the Oral Pleadings to protect
Nigerians living in the areas recognized as belonging to Cameroon (para 317 and para 325 V(C) of the
dispositif ). See also MN Shaw, ‘Self-Determination, Human Rights and the Attribution of Territory’
in U Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma
(Oxford: OUP, 2011) 590.
146 Kosovo (n 64) para 80. 147 Kosovo (n 64) para 80.
However, while it is beyond dispute that territorial integrity applies to inter-state
relations, it is much less clear that this is the end of the matter. In this respect, recent
practice suggests that an intermediate position is now becoming apparent, whereby
the international community may legitimately call for entities within a sovereign state
to seek a solution to any relevant dispute within the confines of the recognized
territory of the state in question. Thus, by necessary implication (and sometimes
indeed expressly), the international community appears to suggest that in certain
authorized situations the principle of territorial integrity may have an application
within independent states facing internal conflict and separatist claims from non-state
actors. This new trend is illustrated by Security Council resolutions relating to
Somalia, for example, which—notwithstanding secessionist pressures from ‘Somali-
land’ and ‘Puntland’, Ethiopian military intervention, and continuing internal armed
conflict leading to the absence of an internationally recognized government—have
emphasized ‘the importance of the sovereignty, territorial integrity, political inde-
pendence and unity of Somalia’.148 Similarly, the UN has been meticulous and
consistent in reaffirming its ‘commitment to respect the sovereignty, territorial
integrity and political independence’ of the Democratic Republic of the Congo;149
and, with respect to the situation in Darfur, has urged ‘all parties’ to the conflict not to
act in a way that might impede the implementation of peace plans that were premised
on the ‘sovereignty, unity, territorial integrity, and independence of Sudan’.150
These examples have been indicative only.151 While it is not suggested that the
concept of territorial integrity has now been accepted as precluding secession, there
is sufficient practice to demonstrate that the international community has not
accepted that territorial integrity is necessarily a matter limited to inter-state
relations; rather, it may reach down into particular states in conflict to require a
solution that preserves the existing territorial dimensions of that state. Enough has
been examined, albeit briefly, to suggest that the International Court’s formulation
in the Kosovo case was too prescriptive.
10. A role for human rights?
In section 9 reference was made, albeit briefly, to the interests of the local popula-
tion, which in some settings may become a relevant factor in the determination of
disputed frontier lines. More generally, the Court’s recent jurisprudence suggests
that the traditional emphasis on territorial title can on occasion be mitigated by
148 See eg SC Res 1766 (23 July 2007) and 1772 (20 August 2007), as well as 1964 (22 December
2010), 1910 (28 January 2010), 1972 (17 March 2011), 2010 (30 September 2011), 2036
(22 February 2012), and 2067 (18 September 2012).
149 See eg SC Res 1756 (15 May 2007), 1794 (21 December 2007), 1804 (13 March 2008), 1952
(29 November 2010), 1991 (28 June 2011), 2021 (29 November 2011), and 2053 (27 June 2012); as
well as GA Res 60/170 (9 March 2006).
150 See eg SC Res 1556 (30 July 2004) and 1769 (31 July 2007), as well as (with respect to Abyei)
1784 (31 October 2007).

151 Note also Resolution 1923 (25 May 2010) by which the Security Council reaffirmed its
‘commitment to the sovereignty, unity, territorial integrity and political independence of Chad and
the Central African Republic, and to the cause of peace in the region’.
concerns for affected populations where they have found themselves on the ‘wrong’
side of the frontier, ie not the one they thought they were on. This might be seen as
part of the increased awareness of human rights issues, including self-determination
in the widest sense, wherein the people in question is seen as possessing certain
rights in the public participation context but within the territory of the sovereign
state concerned, as well as other human rights. The Court has adopted this
approach in the light both of interpretation of relevant instruments and of oral
statements made in the case concerned.
This may be seen particularly in the Cameroon v Nigeria case. In relation to two
particular villages (Turu and Kotcha), the Court found that a process of spreading
from one state to another had or seemed to have taken place. In the former case, the
Cameroonian village of Turu appeared to have spread across the clearly laid down
boundary line, while in the latter case, the Nigerian village of Kotcha had spread into
Cameroonian territory. The Court was clear in stating that it could not modify an
established boundary; rather ‘it would be up to the Parties to find a solution to any
resultant problems with a view to ensuring that the rights and interests of the local
population are respected’.152 This strongly suggests that in such situations obligations
may fall upon the titleholder to treat the affected population in a manner that pays
particular attention to the ‘rights and interests’ of such inhabitants. Quite what ‘rights
and interests’ is intended to mean is not clear, but it must include equal treatment and
non-discrimination, as well as sensitivity to and respect for human rights.
In addition, in relation to the Bakassi peninsula and Lake Chad regions which
contain Nigerian populations, but which were deemed to fall under Cameroonian
sovereignty, the Court stated that ‘the implementation of the present judgment will
afford the parties a beneficial opportunity to co-operate in the interests of the
population concerned, in order notably to enable it to continue to have access to
educational and health services comparable to those it currently enjoys’.153 This
concern was elevated by the reference in the Judgment to what was stated to be the
‘commitment’ of the Cameroon Agent made during the Oral Pleadings to protect
Nigerians living in the areas recognized as belonging to Cameroon,154 and rendered
more significant by the inclusion of the reference to this ‘commitment’ in para-
graph V (C) of the dispositif itself.155
In the Botswana/Namibia case, the Court noted, as a matter of interpretation of a
relevant instrument (the Kasane Communiqué) and in the light of comments made
by Botswana in oral pleadings, that there should be unimpeded access for the craft
of the nationals and flags of the parties in the two channels of the river around
Kasikili/Sedudu Island, irrespective of sovereignty, on an equal treatment basis.156
One can also see the same concern with the rights and interests of affected persons
in the treatment by the Court in Costa Rica v Nicaragua of fishing rights in the San
Juan River for subsistence purposes. These were declared to constitute a customary
152 Cameroon v Nigeria (n 23) para 103; and further para 123.
154 Cameroon v Nigeria (n 23) para 317. 155 Cameroon v Nigeria (n 23) para 325 V(C).
156 Botswana/Namibia (n 100) paras 102–3.
right on the basis of long practice and the absence of protest, but in circumstances
where it was difficult to prove any binding commitment.157
Nevertheless, it must be emphasized that such concern for affected people is
always within the context of title. It serves to mitigate some of the consequences of a
finding of sovereignty—not to overturn, invalidate, or modify it.
11. Conclusion
The role of the ICJ in relation to territory has clearly been critical. As states have
regularly submitted boundary and territorial disputes to it, the Court has had ample
opportunity, not only to decide cases, but to develop principles of law in this area.
It is notable that the Court’s approach has evolved in tackling critical and difficult
parts of the law, such influence radiating beyond the immediate parties to the
general international community. As seen above, the Court has clarified the
principles surrounding the concept of territorial sovereignty, formulated an ap-
proach to pre-colonial and colonial title that has sought to maintain territorial
stability, and set the stage for the rise of the legal right to self-determination, while
demarcating some of its parameters. It has analysed the relationship between legal
title, as exemplified in boundary treaties, and state practice (or effectivités) in a
persuasive manner, even if some rough edges are still apparent. It has sought to
sustain an effective framework buttressed upon the principle of stability of territor-
ial arrangements as far as possible. The Court has not been unaware of the impact of
its work upon the network of relations between states in this most sensitive of areas.
The relationship between the Court and other processes and agencies function-
ing in the field of international law has been a constant undercurrent of the
development of the law relating to territory. ICJ decisions have been especially
influential where they have interpreted and applied, consolidated and refined
positions developed in UN practice, or in treaty law. The recognition of the
principle of self-determination provides an example in point: the Court did not
create the right of self-determination; rather it lent its stamp of authority to its
establishment and helped consolidate and delineate it. The same may be said of the
concepts of territorial sovereignty and territorial integrity.
Notwithstanding occasional controversies, the Court’s jurisprudence has con-
tributed in no small measure to the successful management of territorial and
boundary disputes. Its jurisprudence has helped render the law of territory more
predictable, and through it, the Court has come to be accepted as an authoritative
guide. This role shows no sign of waning. Nor should it.
157 Costa Rica v Nicaragua (n 9) paras 140–4.

9
The Development of the Law of the Sea
by the International Court of Justice
Vaughan Lowe QC and Antonios Tzanakopoulos
1. Introduction
The very first cases to be decided by both the International Court of Justice (ICJ or
‘the Court’) and its predecessor, the Permanent Court of International Justice
(PCIJ), concerned ships and their rights of passage, whether through a strait or
through a canal.1 Both cases are loci classici, and not merely because they were the
first to be decided by the relevant permanent international forum. The world’s seas,
covering most of the planet and being a major site of interaction between states, are
certain not only to facilitate communication and trade but also to give rise to
international friction. The fact, then, that cases on the law of the sea will often fall
to be decided by international courts and tribunals should come as no surprise. The
ICJ is the principal judicial organ of the United Nations, and frequently claimed to
be the ‘World Court’; and its impact on the development of such an important area
of international law as the law of the sea is also frequently presumed to be
significant2—but how significant is it really?
Much has been written about the role of the ICJ in ‘developing’ various areas of
public international law, about the vires of it doing so and the limits to its
developmental capacity, about whether it has done so more or less successfully,
and even about the possibility that the ICJ may be an institution that in some
circumstances effectively blocks the development of the law, at least for a period
of time.
The purpose of this chapter is to survey the contribution made to the develop-
ment of the law of the sea by the ICJ. But before launching into that discussion, it is
necessary to set out what we understand by ‘the development of the law by the
International Court of Justice’. Section 2 of this chapter deals briefly with that
1 Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4 and SS ‘Wimbledon’ (UK, France, Italy,
Japan, Poland [Intervening] v Germany) (1923) PCIJ Ser A No 1, respectively.

2 See eg SM Schwebel, ‘Fifty Years of the World Court: A Critical Appraisal’ (1996) 90 ASIL
Proceedings 339, 345: ‘That the Court has made significant contributions to the development of
international law—the law of the sea and the law of the United Nations in particular—is unquestioned ’
(emphasis added).
understanding. Section 3 surveys the development of the law of the sea and the
other actors involved in that development—given that the ICJ neither developed
nor was expected to have developed that (or any other) area of the law single-
handedly. Section 4 discusses the different kinds and degrees of influence of all of
these actors or ‘agents of development’ of the law. The fifth and final substantive
section focuses on the ICJ’s specific contributions to the development of the law of
the sea, seeking to evaluate them in light of the discussion in sections 2–4.
The outcome of our evaluation is perhaps rather unspectacular: the Court’s
influence on the development of the law of the sea has not been great, and seems to
be diminishing. And yet there may be more than one kind of influence on the
development of the law; and it is arguable that the Court’s importance, at least in
the area of the law of the sea, may lie not so much in its influence as in its authority.
2. The development of international law by the ICJ
The function of the ICJ is to decide in accordance with international law such cases
as are submitted to it.3 The Court’s Statute limits the binding force of each decision
to its effects as between the parties and in respect of the particular case;4 but in the
process of making its decisions the Court will also necessarily ‘confirm’ or ‘develop’
the rules of international law. This is true at the micro-level of determining that a
particular set of facts calls for the application of a certain rule of law, thus ‘making
law for the specific case’ by concretizing the general rule.5 But the Court’s influence
may be significant also at the macro-level, such as when it decides that a particular
rule actually exists as part of the corpus of customary international law, or when it
interprets a rule and thus defines its scope and the contours of its application. Such
findings are bound to have repercussions and to influence the conduct and the
perception not only of the parties but also of other states, and in a variety of ways.6
The dual function of the ICJ is, then, to decide disputes and to establish rules;7
but not always in equal measure. The focus in any particular case may be on one or
the other aspect of the Court’s function, depending on the case and the way in
which the parties pursue it. In some instances the parties may be more interested in
having the Court elaborate the relevant rules, with a view to applying them to their
3 Art 38(1) ICJ Statute. 4 Art 59 ICJ Statute.

5 This involves much more than merely ‘finding’ or ‘declaring’ some objectively existing law: see
H Kelsen, Reine Rechtslehre—Mit einem Anhang: Das Problem der Gerechtigkeit (Vienna: Franz
Deuticke, 2nd rev edn 1960) 242 ff, where Kelsen notes the ‘constitutive character of judicial
decisions’ in general.
6 See A Pellet, ‘Article 38’ in A Zimmermann, C Tomuschat, K Oellers-Frahm and CJ Tams (eds),
The Statute of the International Court of Justice—A Commentary (Oxford: OUP, 2nd edn 2012) 731,
864 (para 327). For the ‘conflicting assumptions’ regarding judicial law-making, in particular with
respect to the ICJ, see CJ Tams and A Tzanakopoulos, ‘Barcelona Traction at 40: The ICJ as an Agent
of Legal Development’ (2010) 23 Leiden JIL 781, 782–5 with further references.
7 Cf GG Fitzmaurice, ‘Hersch Lauterpacht—The Scholar as Judge (Part I)’ (1961) 37 BYIL 1,
14–15.
The Law of the Sea 179
dispute themselves.8 In other cases the parties may be more focused on the actual
result than on the way (and on the rules on the basis of which) it is achieved. And at
other times they may not be interested in either—they may wish merely to get the
matter settled, for example in order to remove an obstacle in their bilateral
relationships with minimal political fall-out.9
The role of the ICJ is reactive. The parties decide whether to submit a dispute to
it, how that dispute will be framed and defined, and what arguments will (and will
not) be presented in support of their claims. The Court’s contribution to the
development of the law is constrained and shaped to a greater or lesser extent by
these variables, as well as by other factors, such as the relative clarity of the
substantive and procedural law involved, the prevailing political climate, and the
expected consequences of the Court’s decision. And of course the world views,
allegiances, and training—the déformation professionnelle—of the judges on the
Court, and no doubt many other factors, also have their influence.
It would be an unhelpful generalization to assert that the Court’s contribution to
the development of the law of the sea has been great, or limited, without a thorough
examination of the impact its decisions have had, and also without considering the
contributions of other actors involved in the development of the law. It is to this
latter question that the next section turns.
3. The agents of development of the law of the sea
The comparator is a crucial element in assigning relative significance to an actor’s

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

The ICJ today ‘competes’ for cases involving the law of the sea with several other
potential fora. Under the 1982 United Nations Convention on the Law of the Sea
(LOSC),10 states may settle disputes concerning the Convention’s interpretation or
application by any peaceful means of their own choice, failing which they shall11
8 See eg Continental Shelf (Tunisia/Libya) [1982] ICJ Pleadings, vol I, 3, 9 (Special Agreement, Art 1).
9 See JG Collier and AV Lowe, The Settlement of Disputes in International Law—Institutions and
Procedures (Oxford: OUP, 1999) 9, referring to Delimitation of the Maritime Boundary in the Gulf of
Maine Area (Canada/USA) [1984] ICJ Rep 246.
10 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833
UNTS 3; see also Agreement relating to the Implementation of Part XI of the United Nations
Convention on the Law of the Sea of 10 December 1982, New York, 28 July 1994, 1836 UNTS 3.
11 Subject to important limitations ratione materiae, which do not affect the argument advanced in
this chapter.
elect to settle any disputes before the International Tribunal for the Law of the Sea
(ITLOS or ‘the Tribunal’) or the ICJ, or they may opt for Annex VII arbitration
(which is the default option) or Annex VIII special arbitration.12 But even before
the entry into force of the UN Convention, states could always opt for arbitration,
and they did so and continue to do so.13
Arbitral tribunals have rendered decisions in roughly half as many instances as
the ICJ in cases relating to the (public international) law of the sea since 1945,
while the score is almost equal if pre-1945 cases are taken into consideration.
Significant and influential decisions have been rendered, the I’m Alone case being an
early example on the right of hot pursuit.14 The 1977 arbitral award in the Anglo-
French Continental Shelf case had an impact on the law of maritime delimitation,15
competing with the jurisprudence of the ICJ inaugurated in the North Sea Contin-
ental Shelf cases eight years earlier.16 A number of other cases have established the
right of entry into ports for ships in distress.17
The ITLOS has also dealt with a number of cases. Around twenty have been
submitted to it to date;18 but most of them deal with the prompt release of vessels
(under LOSC Article 292(1) the ITLOS is the default tribunal to which requests
for prompt release will be submitted) or with provisional measures orders (under
LOSC Article 290(5) the ITLOS is the default tribunal to prescribe provisional
measures pending the establishment of arbitral tribunals). Of the ‘substantive’ cases
submitted to the Tribunal, one was suspended while the parties explored extra-
judicial settlement and was subsequently removed from the Tribunal’s list once
such settlement had been reached,19 while another was decided in 2012.20 The
Seabed Disputes Chamber of the Tribunal has also rendered an Advisory Opinion
at the request of the Council of the International Seabed Authority.21
12 Arts 280, 281(1), 287 LOSC.

13 Cases under LOSC, for example, have been submitted primarily to Annex VII arbitral tribunals.
The fact that such arbitral tribunals are the default method of dispute settlement under LOSC certainly
plays a role in this statistic, but in the final analysis it was the decision of states to make this the default
method.
14 SS ‘I’m Alone’ (Canada/USA) (1935) 3 RIAA 1609.
15 Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern
Ireland and the French Republic (United Kingdom/France) (1977) 28 RIAA 3.

16 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands) [1969] ICJ Rep 3. See
further, 5.1.
17 See eg Kate A. Hoff, Administratrix of the Estate of Samuel B. Allison, Deceased (US) v Mexico (‘The
Rebecca’) (1929) 4 RIAA 444; see also Aramco v Saudi Arabia (1958) 26 ILR 167, but cf AV Lowe,
‘The Right of Entry into Maritime Ports in International Law’ (1977) 14 San Diego L Rev 597.
18 The list of all ITLOS cases, along with all of the Tribunal’s decisions, can be found on the
Tribunal’s website at <http:/www.itlos.org/index.php?id=35> (accessed 17 May 2013).

19 Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean
(Chile/European Union) 2009/1 (Order Removing from List) 16 December 2009.

20 Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal
(Bangladesh/Myanmar) (Judgment) 14 March 2012. Two other pending cases, the M/V ‘Louisa’ (St
Vincent and the Grenadines v Spain) and the M/V ‘Virginia G’ (Panama/Guinea-Bissau), refer to LOSC
violations regarding the arrest or seizure of vessels but are not prompt release proceedings.
21 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in
the Area (Advisory Opinion) 1 February 2011.

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

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

sea zones see Prosecutor v TP ILDC 1498 (GR 2003); United States v Jho and Overseas Shipholding Group
Inc 534 F 3d 398 (5th Cir 2008), ILDC 1068 (US 2008); (also on collision) Blunden v Australia ILDC
207 (AU 2003); Kircaoglu and Sanaga ILDC 1635 (IT 2010); on the right of innocent passage and
application of domestic law in the territorial sea see Re Maritime Union of Australia ex p CSL Pacific
Shipping Inc, ILDC 204 (AU 2003); Emergia SA v Ministry of Economy and Finance and the National
Customs Bureau ILDC 596 (PE 2006).
23 CJ Colombos, The International Law of the Sea (London: Longmans, 6th rev edn 1967).
Significantly, neither the ICJ nor its predecessor is mentioned separately. Colombos does, however,
acknowledge that while the primary function of the ICJ is to decide cases that are submitted to it, its
Statute ‘enable[s] it . . . to codify and develop international law’: Colombos at 9, para 5.
24 See eg DP O’Connell, The International Law of the Sea, vol I, IA Shearer (ed) (Oxford:
Clarendon Press, 1982) 301–2.

25 Relevant current and former Committees of the International Law Association include the Commit-
tees on ‘Baselines under the International Law of the Sea’, on ‘International Law and Sea Level Rise’, on the
‘Role of International Law in Sustainable Natural Resource Management’, on the ‘Outer Continental
Shelf ’, on ‘Coastal State Jurisdiction over Marine Pollution’, and others. For a complete list of ILA
Committees see <http://www.ila-hq.org/en/committees/index.cfm> (accessed 17 May 2013). Relevant
current Commissions of the Institut include the Commission on Piracy and on the Legal Regime of
Wrecks of Warships and Other State-Owned Ships in International Law. For a list of current Institut
Commissions see <http://www.idi-iil.org/idiE/navig_commissions.html> (accessed 17 May 2013).
States too, acting through international organizations, notably the United
Nations and its predecessor, the League of Nations, have embarked on some rather
laborious codification attempts, initially with disappointing or mixed results, but
more recently produced the 1982 LOSC, which has been hailed as a ‘constitution
of the oceans’.26
Early intergovernmental codification attempts commenced in 1924, when the
League of Nations appointed a Committee of Experts to draw up a list of subjects
ripe for codification. These included territorial waters, piracy, and the exploitation
of marine resources, as well as the legal status of state-owned merchant ships: but
only the question of territorial waters was finally selected for consideration by the
codification conference which was convened in The Hague in 1930—to no avail, as
disagreement over the crucial question of the breadth of territorial waters did not
allow the elaboration of a treaty.
The United Nations took up the challenge of codification in a more institutional-
ized manner, establishing the International Law Commission (ILC) with a mandate
to codify and progressively develop selected topics of international law. The careful
work of the ILC on the law of the sea, from the Commission’s inception up until
1956, served as the basis for the First United Nations Conference on the Law of the
Sea (UNCLOS I), which produced the four Geneva Conventions on the law of the
sea of 1958.27 However, the very problem that had defeated the 1930 Hague
Conference—disagreement over the breadth of territorial sea—also marred the
1958 codification effort. UNCLOS II, convened in 1960 to consider that question,
also failed to reach an agreement, and the matter was laid to rest for a decade.
Nevertheless, the Third United Nations Conference on the Law of the Sea (UN-
CLOS III) succeeded in reaching an agreement on the question as part of a compre-
hensive package of reforms resulting from its herculean labours.
The importance of the LOSC can hardly be overstated.28 To a large extent it is
seen as codifying pre-existing customary international law, but important provi-
sions also crystallized nascent rules of customary law or served as the basis for the
development of new customary rules—perhaps inevitably relating mainly to rights
rather than to duties.29
26 See T Treves, ‘United Nations Convention on the Law of the Sea’ (2008) United Nations
Audiovisual Library of International Law, <http://untreaty.un.org/cod/avl/pdf/ha/uncls/uncls_e.pdf>

(accessed 17 May 2013); and cf within the UN family: United Nations Conference on Sustainable
Development, RIO 2012 Issues Briefs, No 4, <http://www.uncsd2012.org/content/documents/
216Issues%20Brief%20No%204%20Oeans_Rio20_FINAL.pdf> (accessed 29 December 2012);
‘Secretary-General Launches New Initiative to Protect the World’s Oceans’, 12 August 2012,
<http://www.un.org/apps/news/story.asp?NewsID=42668> (accessed 17 May 2013).
27 Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 UNTS 205;
Convention on the High Seas, 29 April 1958, 450 UNTS 11; Convention on the Continental Shelf,
29 April 1958, 499 UNTS 311; and Convention on Fishing and Conservation of the Living Resources
of the High Seas, 29 April 1958, 559 UNTS 285.
28 For an evaluation of the impact of the LOSC thirty years since its adoption see generally the
contributions in (2012) 27 International Journal of Marine and Coastal Law 701–881.

29 On this latter point see AV Lowe, ‘Was it Worth the Effort?’ in International Journal of Marine and
Coastal Law (n 28) 875, 879: rights tend to pass into customary international law more easily than duties.
3.3 The regulators

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

Codifiers articulate and systematize existing law: they do not make it. According to
current orthodoxy, it is states that are the actual makers of international law. States
are constantly developing the law of the sea, establishing new rules and refining
older ones, whether through the adoption of treaties in codificatory or other
conferences, through action in ‘competent’ international organizations, through
negotiations, or through unilateral actions contributing to the pool of state practice,
which, coupled with opinio juris, is the classical source of rules of customary
international law. And states make treaties. Many treaties and other agreements
have been elaborated (in addition to the LOSC), regulating between them almost
all aspects of the law of the sea. In addition to the treaties mentioned above, one
30 See generally J Harrison, Making the Law of the Sea: A Study in the Development of International
Law (Cambridge: CUP, 2011) 13–19.

31 International Convention for the Safety of Life at Sea, 1 November 1974, 1184 UNTS 3.
32 International Convention for the Prevention of Pollution from Ships, 2 November 1973, 1340
UNTS 184.
33 Between 1985 and 2002 a dedicated documentary yearbook was published by the Netherlands
Institute for the Law of the Sea to survey the relevant practice of international organizations:
International Organizations and the Law of the Sea (Dordrecht: Graham & Trotman/Martinus Nijhoff,
1985–2002).
34 See eg Art 118 LOSC.
35 See eg Arts 197–223 (LOSC), among others. See further International Maritime Organiza-
tion, ‘Implications of the United Nations Convention on the Law of the Sea for the International
Maritime Organization’ (2012) IMO Doc LEG/MISC.7; ‘ “Competent or Relevant International
Organizations” under the United Nations Convention on the Law of the Sea’ (1996) 31 L of the
Sea Bull 79.
could note the 1988 SUA Convention and its 2005 Protocol,36 the Djibouti Code
of Conduct37 and associated guidelines, and numerous global, regional, or bilateral
fisheries agreements.
States have had an impact on the development of the law of the sea through their
negotiated settlements and delimitations of maritime boundaries, declarations on
zones of peace,38 negotiated clarifications of the right of innocent passage for
warships,39 and so forth. And, most importantly, they have done so through
unilateral measures, action, or claims, which potentially have a profound effect
on the substance of the rules of the law of the sea.40 The practice of states may
demonstrate the reversal of rules pronounced by an international court—for
example, the reversal by treaty of the rule on exclusive flag state jurisdiction in
the aftermath of the Permanent Court’s Lotus decision;41 or it may cast doubt on
the status of customary or even conventional rules, as for example in the case of the
requirements for the adoption of straight baselines, where a significant number of
states seem to stretch or even to disregard the requirements in the LOSC, conduct
which has often elicited little or no objection from other states.42
As this brief overview demonstrates, the ICJ faces some serious rivals for influ-
ence over the development of the law of the sea. To these ‘agents of development’
one should also add some of the great jurists who have produced seminal works
on the subject, surveying great bodies of state practice, clarifying the precise content
of rules, and providing an overall coherent framework for the analysis and under-
standing of the law of sea. The monographs by Gidel,43 O’Connell,44 Weil,45
36 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation,
10 March 1988, 1678 UNTS 221; and Protocol of 2005 to the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation, 14 October 2005, IMO Doc LEG/
CONF.15/21.
37 Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the
Western Indian Ocean and the Gulf of Aden, 29 January 2009, reproduced as an Annex in IMO Doc
C 102/14 of 3 April 2009.
38 See eg UN GA Res 41/11 on the Zone of Peace and Co-operation of the South Atlantic,
27 October 1986, UN Doc A/RES/41/11. See further SP Subedi, Land and Maritime Zones of Peace in
International Law (Oxford: Clarendon Press, 1996).
39 Joint Statement by the United States of America and the Union of Soviet Socialist Republics on
the ‘Uniform Interpretation of Norms of International Law Governing Innocent Passage’, Jackson
Hole, Wyoming, 23 September 1989 (1989) 14 Law of the Sea Bull 12.
40 A useful database of state practice on maritime zones and maritime delimitation is maintained
by DOALOS, the Division for Ocean Affairs and the Law of the Sea of the UN Office of Legal Affairs,
<http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/index.htm> (accessed 29 December
2012).
41 The SS ‘Lotus’ (1927) PCIJ Ser A No 10, 27; and cf Art 1 International Convention for the
Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision or Other Incidents
of Navigation (‘Brussels Convention’), 10 May 1952, 439 UNTS 233.
42 See for an overview JA Roach and RW Smith, Excessive Maritime Claims (Dordrecht: Martinus
Nijhoff, 3rd edn 2012) ch 4. See also this chapter at 5.1.

43 G Gidel, Le droit international public de la mer: le temps de paix, 3 vols (Chateauroux: Établisse-
ments Mellottée, 1932–4; repr Vaduz: Topos, 1981).

44 DP O’Connell, The International Law of the Sea, 2 vols, ed IA Shearer (Oxford: Clarendon Press,
1982–4).
45 P Weil, The Law of Maritime Delimitation: Reflections (Cambridge: Grotius, 1989).
Colombos,46 Dupuy and Vignes,47 and McDougal and Burke,48 among others, are
reference works of great value, consulted by counsel, judges, and scholars alike; and
they have exercised their own influence on the development of the law, along with
more recent scholarship in the field.
The question then is what can be made of all of this—what does it imply for the
appraisal of the ICJ’s impact on the development of the law of the sea? It is to this
question that the next section turns.
4. Influencing the development of the law: kind and degree
Every one of the ‘agents of development’ has had some influence in the develop-
ment of the law of the sea. But influence comes in different varieties and degrees.
Even among the ‘adjudicators’ a distinction can be drawn between the degree of
influence of permanent tribunals as opposed to that of ad hoc arbitral tribunals, as
well as between international tribunals and domestic courts. On the other hand,
courts exercise a different kind of influence on the development of the law to that
exercised by the codifiers, regulators, and law-makers.
4.1 Differences in degree: negotiating the law

There are obvious differences between the organization and procedures of a
permanent jurisdiction such as the ICJ, and ad hoc arbitration. Arbitration is
more flexible in every aspect: parties may select the arbitrators, and they do so
having regard to their expertise, their particular approach, and even their language
or their cultural leanings.49 Arbitral hearings are more flexible and informal, and
commonly involve much greater interaction between the tribunal and the parties
than is the case in the ICJ: it is easier to engage with lines of questioning coming
spontaneously from three or five arbitrators than it is to engage with the more
formal handling of questions from much larger judicial benches. Questioning can
help to identify hopeless, or fruitful, or even completely (mis)understood lines of
argument, to clarify or refine arguments; and it can in effect lead to something close
to a process of negotiating the law before (and with) the tribunal. This may yield
46 Colombos (n 23).
47 R-J Dupuy and D Vignes (eds), A Handbook of the New Law of the Sea, 2 vols (Dordrecht:
Martinus Nijhoff, 1991).
48 MS McDougal and WT Burke, The Public Order of the Oceans (New Haven: YUP, 1962).
49 As the selection of the Chamber in the Gulf of Maine case readily demonstrates: see Delimitation of
the Maritime Boundary in the Gulf of Maine Area (Canada/USA) (Constitution of Chamber) [1982] ICJ
Rep 3, 11 and 12–13 (Dissenting Opinions of Judges Morozov and El-Khani, respectively). The
insistence of the parties on selecting not only the number of judges composing the Chamber, but also
the particular judges, who all happened to come from western states, brings the creation of the Chamber
much closer to arbitration: see E Decaux, ‘Les eaux mêlées de l’arbitrage et de la justice (droit de la mer et
règlement des différends)’ in La mer et son droit: Mélanges offerts à Laurent Lucchini et Jean-Pierre
Queneudec (Paris: Pedone, 2003) 159, 170. The parties did in fact threaten to withdraw their dispute
from the Court in case their preferred composition was not the one selected by the Court in constituting
the Chamber, and to submit it to an arbitral tribunal consisting of their preferred judges.
awards that are particularly responsive to the nuances of the pleadings of the
parties—though ad hoc tribunals will naturally tend to stay broadly in line with
the jurisprudence of standing courts and other ad hoc tribunals.
This kind of ‘negotiation’ of the law is more difficult before a standing court; and
this is not just because of the more formal nature of their oral proceedings. It is also
because permanent jurisdictions tend to be particularly conscious of the need for
consistency between their various decisions, and of the need to maintain their
authority. They tend to cite their own decisions in earlier cases; and in consequence
so do counsel appearing before them. This effect is likely to be amplified in
circumstances where clerks are employed. Clerks tend to deliver research papers
that contain the kind of material they think is expected from them: it is generally a
safe course to analyse a case before a court in terms of that court’s own jurispru-
dence, relying heavily on approaches, formulae and language drawn from earlier
judgments. The whole process of pleading before standing tribunals is more like
building with Lego blocks than it is like composing a delicate and nuanced
watercolour painting.
The repeated quotation and citation of earlier decisions in standing tribunals will
result in a jurisprudence constante which, precisely because it is repeated and
constante, tends to acquire a certain natural authority and influence that even the
most carefully crafted award of an ad hoc tribunal is unlikely to command.
Despite the proliferation and variety of international courts and tribunals (both
in the area of the law of the sea and beyond),50 the common characteristic of
judicial and arbitral proceedings is that courts and tribunals tend to decide on the
narrowest available bases and if possible to avoid fundamental questions about the
legal order. They tend to focus on the narrower function of deciding particular
disputes (which of course may have far-reaching implications for the development
of the law), rather than seeing themselves as overtly responsible for developing the
legal regime.51 While the degree of influence of the tribunal on the specific
situation in the particular dispute is of the highest order, because the decisions
are binding upon the parties and dispositive, the range of that influence is narrow.
Again, this tends to give standing tribunals, such as the ICJ, more influence than ad
hoc tribunals.
50 The main adjudicators in the law of the sea were identified in 3.1, and they include, apart
from the ICJ, the ITLOS, arbitral tribunals under the LOSC, and ad hoc tribunals, but questions
relevant to the law of the sea may and do arise incidentally before other tribunals, such as the Court of
Justice of the European Union (CJEU) and the Appellate Body of the World Trade Organization
(WTO AB), and even before human rights courts such as the European Court of Human Rights
(ECtHR) and arbitral tribunals set up to resolve investment disputes, whether institutionalized or ad
hoc. The ICJ, as the ‘principal judicial organ’ of the UN, may be the primus inter pares, but it is not
necessarily the court with the greatest expertise in all the areas in which these courts are active,
including the law of the sea. In fact, the arguments in favour of the establishment of ITLOS during
UNCLOS III were based at least in part on the need for a tribunal with particular expertise: see Decaux
(n 49) 160 with respect to the French position.
51 The exceptions being tribunals such as the CJEU and the ECtHR, and increasingly the WTO
AB, which do see themselves as responsible for the development of their ‘sectoral’ legal regime.
4.2 Differences in kind: blueprints52 and bricks

The codifiers provide an interesting counterpoint to the adjudicators. The codifiers’
role is not to handle the specifics of a particular case in order to decide a dispute. It
is rather to give a broad-brush, integrated view of the entire field of law with which
they are concerned.53 Any given rule or principle is to be read in the context of the
other rules and principles constructing the whole regime, and to be adjusted
accordingly.
The difference here between the influence of the adjudicators and that of the
codifiers is evident—but is it a difference that makes the influence of one greater
than that of the other? To answer this we need to think of how the law is applied in
practice.
A problem arises, a dispute matures. The interests and the positions of the parties
are identified. The decision that resolves the dispute will appear to be syllogistic:
these are the facts; this is the law that applies to these facts; here is the result of the
application of the law to the facts—the conclusion, the (re)solution. But legal
arguments are not syllogistic: they are constructed as ‘topical’ arguments, seeking to
secure the assent of a specialist audience.54 The contest is over what principle is to
be applied, and over how it actually applies to the facts. That will usually require an
explanation of how the case in question sits in the context of the overall regime. It
requires something like the construction of a story; and such a construction cannot
be achieved by plucking principles out of thin air.
To take an example that has not in fact been codified, but could have been by the
extension of rules that are codified, is there a right of entry to, and/or egress from,
maritime ports in favour of ships of third states? Is such a right an analogue or
complement to the right of innocent passage? Or are maritime ports to be treated like
other areas of internal waters, in which no rights of passage exist for foreign ships?55
Who is it then that constructs the ‘story’? Who is it that provides the overall
perspective? This is the work of the codifiers, whether these codifiers are public
(such as the states in conference or the ILC) or private (such as the International
Law Association or the Institut de Droit international, or individual codifiers or
publicists). They create the architecture, the blueprints of entire branches of public
international law in ways that the ICJ cannot. The ICJ (and courts in general,
including domestic courts) will provide the ‘bricks’, the hard material of public
international law, by deciding specific cases. But it is the codifiers who, using these
bricks, will create a structure, and see the areas where bricks are missing and fill in
the gaps in the light of the design of the overall structure.
52 Used here in the sense of ‘architectural design’.

53 Codification is thus understood here as the establishment of a systematic body of rules for
achieving a comprehensive treatment of the subject, as opposed to the mere written formulation of
rules for the purpose of consolidation: see A Watts, ‘Codification and Progressive Development of
International Law’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law, vol II
(Oxford: OUP, 2012) 282.
54 See generally C Perelman and L Olbrechts-Tyteca, Traité de l’argumentation: la nouvelle rhétor-
ique, 2 vols (Paris: PUF, 1958)—a rather old, but very perceptive, analysis.
55 See the references in n 17.
4.3 Between blueprints and bricks

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

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

58 See Christine Gray’s contribution in this volume at Chapter 11.
5.1 Delimitation of maritime areas

In the North Sea Continental Shelf cases, the Court rejected the rule of ‘equi-
distance/special circumstances’ as the customary method of delimitation, finding
that the provision of Article 6 of the 1958 Geneva Convention did not constitute a
rule of customary international law.59 It went on to make the principle of equity
central to delimitation, stating that ‘delimitation must be the object of agreement
between the States concerned, and that such agreement must be arrived at in
accordance with equitable principles’.60 Customary international law itself required
the application of ‘equitable principles’,61 equidistance being only one of the
methods for achieving an equitable result, and one that was indeed inapplicable
in those particular cases precisely for the reason that it would not produce such a
result.62
Undoubtedly the Court made a great conceptual contribution by putting the
principle of equity centre-stage in the delimitation of continental shelves. The
developments in the law since the North Sea cases, whether in the ICJ itself,63 in
other tribunals,64 or even in the LOSC,65 can be cast as a reaffirmation, further
exploration, or application of that concept.
However, as great as the Court’s conceptual contribution may be, and however
much the Court’s formula regarding equitable principles and the achievement of an
equitable result may have been subsequently rehashed and even codified, the reality
is that the very vague ‘rule’ regarding delimitation has proved almost incapable of
any predictable or otherwise consistent application. Gradually, the Court itself,
prodded along by the occasional arbitral decision,66 reverted to adopting the equi-
distance/special circumstances method as the preferred or presumptive method of
delimitation,67 all the while refining the ‘corrective’ principles which would help to
lead to an equitable result.68
59 North Sea Continental Shelf (n 16) paras 60–81.

62 North Sea Continental Shelf (n 16) paras 89–90.
63 See eg Continental Shelf (Tunisia/Libya) [1982] ICJ Rep 18; Continental Shelf (Libya/Malta)
[1985] ICJ Rep 13.

64 See eg Delimitation of the Maritime Boundary between Bangladesh and Myanmar (n 20) paras
225–40; along with numerous arbitrations.

65 See Arts 74 and 83 LOSC; but cf Art 15 which maintains the equidistance method with respect
to the delimitation of territorial seas.

66 Anglo-French Continental Shelf (n 15) paras 75 and 249.
67 See eg Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway)
[1993] ICJ Rep 38, para 51; Maritime Delimitation and Territorial Questions between Qatar and
Bahrain (Qatar v Bahrain) [2001] ICJ Rep 40, para 230; Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) [2002] ICJ Rep 303, para
288; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar-
agua v Honduras) [2007] ICJ Rep 659 para 272: ‘the equidistance method . . . has a certain intrinsic
value because of its scientific character and the relative ease with which it can be applied’ (emphasis
added); see also 745, para 281; Maritime Delimitation in the Black Sea (Romania v Ukraine) [2009] ICJ
Rep 61, para 116.
68 See Maritime Delimitation in the Black Sea (n 67) paras 116 ff for the ‘three stages’.
The only other significant contribution of the Court in the area of maritime
delimitation may be said to be its clarification that the geomorphology of the
continental shelf is not a relevant factor within the 200 nautical mile limit in
Tunisia/Libya,69 even thought this also is in part attributable to the new provisions
on the continental shelf elaborated in the LOSC.70
The Anglo-Norwegian Fisheries case is occasionally claimed to be an innovative
decision establishing the right of states to draw straight baselines from which to
measure sea zones,71 especially given the fact that the relevant decision is reflected,
with further elaboration, in the LOSC.72 However, it is debatable whether the
decision indeed had any serious impact on the right to draw straight baselines—
which was not really disputed, given that the UK was found to have acquiesced in
the drawing of such baselines in that case.73 Indeed, practically the only contribu-
tion of the decision to the development of the law of the sea can be said to be the
elucidation of parameters for allowing the drawing of straight baselines (deeply
indented coast, island fringes, and the like), further added to by the LOSC. And
yet, state practice has tended to disregard these parameters and consider straight
baselines almost as an open alternative to ‘normal’ baselines, in the face of rather
limited objection.74 This casts doubt not solely on the Court’s contribution to the
development of the law, but may eventually affect the normativity of the custom-
ary, and even the conventional, ‘exceptional’ rule.
5.2 The regime of fisheries

Despite its name, the (Anglo-Norwegian) Fisheries case did not really deal with
fisheries at all. Rather, the two sets of cases in this category are the two (sets of)
Fisheries Jurisdiction cases.75 In Icelandic Fisheries Jurisdiction set in the mid-
1970s the Court pronounced the 12 nautical mile Exclusive Fishing Zone to be
a rule of customary international law,76 but that was rather unspectacular given
the extensive practice of declaring such zones in light of the failure of both
UNCLOS I and II to agree on the breadth of the territorial sea or to accord
coastal states preferential rights of access to fish stocks in waters adjacent to the
territorial sea.
69 Tunisia/Libya (n 63) paras 62–8.

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

75 Fisheries Jurisdiction (UK v Iceland) (Germany v Iceland) (Merits) [1974] ICJ Rep 3 and 175,
respectively; Fisheries Jurisdiction (Spain v Canada) [1998] ICJ Rep 432.

76 Fisheries Jurisdiction (UK v Iceland) (n 75) para 52.
The rather more important pronouncement of the Court in Icelandic Fisheries

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

The right of innocent passage through the territorial sea for foreign ships evolved
together with the concept of the territorial sea itself, and had been conceded since
the days of Vattel. A dispute over innocent passage was the first to come before the
ICJ in Corfu Channel,79 which is still hailed as a landmark.80 The dispute raised two
main questions related to the law of the sea: one with regard to the concept of
straits, and one with respect to ‘innocence’ of passage. A third question lurking just
below the surface, however, was the one regarding the application of the regime of
innocent passage to straits (rather than some other, adjusted, regime). We take
these questions in turn.
As far as the definition of straits is concerned, the decision of the Court in Corfu
Channel was not really an advance on the position adopted at the 1930 Hague
Conference, even though the latter did not produce any binding instrument. The
Court merely confirmed that it is the use of a putative ‘strait’ by international
shipping, rather than any inherent properties or definition of the strait itself, that
determines the rights of both coastal and flag states in the relevant sea area.
77 Fisheries Jurisdiction (UK v Iceland) (n 75) para 58.

78 United Nations Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 14 December 1995, 2167
UNTS 88. See T Stephens and DR Rothwell, ‘The LOSC Framework for Maritime Jurisdiction and
Enforcement Thirty Years On’ (2012) 27 International Journal of Marine and Coastal Law 701, 707.
79 Corfu Channel (n 1).
80 S Kaye, ‘International Straits: Still a Matter of Contention?’ in K Bannelier, T Christakis and
S Heathcote (eds), The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu
Channel Case (Abingdon: Routledge, 2012) 149. The title of this publication is in itself instructive as to
the fact that the Corfu Channel case is hailed as a landmark in international law in general. Specifically
as to the law of the sea, see further Stephens and Rothwell (n 78) 704.
With respect to the ‘innocence’ of passage, the Court diverged from the position
adopted at the 1930 Hague Conference, treating the manner of passage as the
decisive criterion for its innocence, rather than focusing on the activities during
passage and whether these are prejudicial to the interests of the coastal state.
Preference of the former criterion over the latter gave a semblance of objectivity,
in the sense that passage undertaken in the manner prescribed would be conclusive
of innocence, and the violation of coastal state laws would not ipso facto render the
passage non-innocent. However, the Court’s decision failed to have a lasting
impact: the ILC reverted to the 1930 Hague Conference position, and while the
1958 Geneva Convention on the Territorial Sea re-reverted to the Court’s pro-
nouncement by and large, innocence was again re-conceptualized in the LOSC,
which in Article 19(2) reintroduces the activities during passage as the decisive
criterion.81
The Corfu Channel case may have established the right of innocent passage
through straits for warships, but it said nothing expressly on the right of innocent
passage for warships with respect to the territorial sea. The issue remained conten-
tious for a long time,82 and is still the subject of some considerable practice of
requiring prior authorization or notification by a sizeable minority of states.83 In
the Corfu Channel case it was the fact that passage was through a strait that had a
crucial impact on the legal position,84 otherwise the presumption would be that the
Court got it wrong—or at least that its Judgment failed to impact the law in any
appreciable manner.
In fact, it appears that a qualitatively different right of passage through inter-
national straits had long been in gestation, a right different from innocent pas-
sage.85 This right the Court may have failed to map out clearly (by referring to
‘innocent’ passage, ie qualitatively the same right as the one in existence with
respect to the territorial sea), and it was this right that the codifiers then took up
as ‘transit passage’ in the LOSC.86 But here again the point is that the Court could
hardly be expected to diagnose the evolution, if it had indeed started to occur—this
is the proper work of the codifiers. The Court merely added another brick, and it
was the codifiers’ job to put it in its proper place in the structure.
81 This is further supported and clarified by the US-USSR Jackson Hole Joint Statement (n 39)
para 3.
82 But see finally US-USSR Jackson Hole Joint Statement (n 39) para 2.
83 See RR Churchill and AV Lowe, The Law of the Sea (Manchester: MUP, 3rd edn 1999) 89–90
with further references, as well as Kaye (n 80) 163.

84 As indeed the provision on non-suspension of passage through straits (as opposed to that through
the territorial sea) suggests: for this concession see Corfu Channel (n 1) 28 and cf Art 16(4) 1958
Geneva Convention on the Territorial Sea (n 27).
85 See O’Connell (n 24) 301–2, 314, 327, referring to straits constituting an ‘autonomous insti-
tution’, and passage through them in practice having approximated high seas passage rather than
innocent passage; see also SN Nandan and DH Anderson ‘Straits Used for International Navigation:
A Commentary on Part III of the UNCLOS 1982’ (1989) 60 BYIL 159, 159–60 with further
references.
86 Art 37 LOSC. But see Churchill and Lowe (n 83) 110 ff.
6. Conclusion: the Court’s influence
This brief survey of the ICJ’s role in the development of the law of the sea
demonstrates that its influence has not been great, and that it is indeed diminishing
as other tribunals take on some part of the task of applying the rules of the law of
the sea. Only a handful of the delimitation cases are dated in the last couple of
decades, and most of the ‘seminal’ cases are quite a bit older than that. But this is to
some extent to be expected: as the codifiers, whether the ILC or the states in
conference, cover whole areas of the law, either through treaties or merely as sets of
articles,87 the ICJ will fall more and more into deciding cases rather than ‘making’
the law. These decisions will have some influence on the further development of the
law in its more detailed aspects; but they can hardly be expected to shape it in any
fundamental manner.
This fate has not befallen the ICJ alone. The same is true for all courts, whether
the US Supreme Court, the CFEU, or the ECtHR. The more developed the law is,
the less frequently landmark cases will tend to arise. But as we hope to have made
clear in this discussion, this does not mean that the ICJ has no influence in the
development of the law. It certainly has a different, more limited, but certainly
important kind of influence, in producing ever more elaborate bricks; in the end
these are what hold the structure of the law together. And, in the final analysis,
apart from influence, there is also authority. Of this the ICJ has a great deal, and
perhaps it is at least as importance as influence.
Where there are divergences in state practice or in the approaches adopted by
arbitral tribunals, the ICJ is in principle available to give a definitive ruling as to
which is correct. Here the quality of the legal analysis, while important, takes
second place to the need to have one tribunal which can decide between competing
views of the law. It is the prestige and authority of the ICJ, and the recognition by
lawyers of the need for a final arbiter in the international legal system, that gives it
that role. It is here that the ICJ makes its greatest contribution to the development
of the law of the sea. By giving its imprimatur to or withholding it from develop-
ments taking place elsewhere—in codification conferences, in arbitral tribunals,
or in some other context—the ICJ provides the essential quality control that is
necessary in every legal system.
87 See Watts (n 53) para 14 on the achievement of the ILC in having completed its work on a
remarkably wide range of topics comprising the main elements of the architecture of international law.
PART V
THE UNITED NATIONS
10
The Role of the International Court of Justice
in the Development of the Institutional Law
of the United Nations
James Sloan and Gleider I Hernández
1. Introduction
In any legal system, it is generally assumed that the judicial function may play a role
in contributing to the understanding of competences and powers within that
system. Accordingly, Articles 92–96 of the United Nations Charter, which declare
the International Court of Justice (ICJ, or ‘the Court’) to be the ‘principal judicial
organ of the United Nations’,1 in conjunction with Chapter IV (Articles 65–68) of
the Court’s Statute,2 confer upon competent requesting organs the power to
request advisory opinions from the Court.3 In theory, this facility entitles a
requesting organ to expect ‘authoritative legal guidance’4 and ‘enlightenment as
to the course of action it should take’;5 and in its advisory capacity, the Court
would play the role of ‘trusted advisor’, as Sir Franklin Berman states elsewhere in
this volume.6 Yet in practice, only rarely has such advice been sought: the Court has
only infrequently had occasion to consider the status, powers, and functions of the
Organization, and the relationship between its fellow principal organs.7 Moreover,
1 Charter of the United Nations, 1 UNTS xvi; UKTS 67 (1946), Cmd 7015 (26 June 1945) (‘UN
Charter’ or ‘Charter’).
2 The Court’s Statute, as is well known, is an annex to the Charter itself. This form entails that,
whether or not UN member states accept its jurisdiction in contentious matters, all member states
accept its status as a principal organ of the Organization, and its concomitant advisory jurisdiction.
3 Art 95 of the Charter provides that the General Assembly or the Security Council ‘may request the
International Court of Justice to give an advisory opinion on any legal question’ and that other UN
organs and specialized agencies authorized by the General Assembly ‘may also request advisory
opinions of the Court on legal questions arising within the scope of their activities’.
4 See eg GA Res 1731 (XVI) (12 December 1961) (concerning the interpretation of Art 17(2) UN
Charter).
5 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase) (Advisory
Opinion) [1950] ICJ Rep 65, 71.

6 See the discussion by Sir Franklin Berman in this volume at Chapter 2.
7 According to the Court’s website (<http://www.icj-cij.org>; accessed 17 May 2013), the General
Assembly has made but twenty-three requests for advisory opinions, the Security Council has made
one request, and ECOSOC has made two requests. The now-defunct Trusteeship Council, whilst
even where the Court’s advice has been sought by another principal organ, that organ
appears, in principle at least, to be free to disregard it.8 Thus, although the court has
made important contributions to the institutional law of the Organization, the
decision-making and practice of the other principal organs9 has in fact been the
major contribution to the institutional law of the United Nations.10
Perhaps reflecting the decentralized nature of international law, the opinions of
member states as to the nature of the powers of the Organization seem to be equally
relevant. During debates of the General Assembly, the Security Council or the
Economic and Social Council (ECOSOC), member states will put forward their
views of the functions and powers of the principal organ carrying on the debate, the
functions and powers of other principal organs, or those of the Organization as a
whole. Ideally, statements by a member state will also reflect their understanding of
the Charter or international law generally, and perhaps constitute an expression of
that state’s opinio juris. However, one must be cautious in assessing such state-
ments, as a member state’s understanding of what international law requires will
correspond to the political outcome it seeks, and may bear little resemblance to
earlier interpretations by the same member state.11
The primary forum for addressing legal matters in the General Assembly is the
Sixth Committee, though legal issues frequently arise (and are dealt with) in its
other Main Committees, as well as its Procedural and Standing Committees.
empowered to request advisory opinions, has never done so. Neither the Secretary-General nor the
Secretariat has been vested with the authority to make such requests.
8 The Court has frequently made reference to the non-binding nature of its Opinions. See
Interpretation of Peace Treaties (n 5) 71, where the Court observed that its ‘reply is only of an advisory
character: as such, it has no binding force’; and Certain Expenses of the United Nations (Article 17,
paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 168, where the Court stressed the
word ‘advisory’ when discussing its ability to render an advisory opinion. The point was recalled in
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human
Rights (Advisory Opinion) [1998] ICJ Rep 62, 76, para 25 (Cumaraswamy). It remains possible for an
advisory opinion to be accorded a binding character where parties so agree in another treaty or other
instrument: see, for example, Art XII(1) of the Statute of the Administrative Tribunal of the
International Labour Organization, and Art VIII, s 30 of the UN Convention on Privileges and
Immunities of the United Nations, 13 January 1946, 1 UNTS 15. On this point, see, generally,
R Ago, ‘ “Binding” Advisory Opinions of the International Court of Justice’ (1991) 85 AJIL 139. As
regards the findings of the Court in a contentious case, these too are not, strictly speaking, binding on
the Organization. While Art 94(1) of the Charter provides that UN member states undertake to
comply with a decision of the Court ‘in any case to which it is a party’ (emphasis added), only states, and
not the United Nations or its organs, may be parties in a contentious case.
9 Art 7 of the UN Charter establishes ‘as principal organs of the United Nations: a General
Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an Inter-
national Court of Justice and a Secretariat’. The UN principal organs have of course established
hundreds of organs of a subsidiary nature over the Organization’s existence; consideration of these is
very limited for reasons of space.
10 Regarding the interpretive powers of the organs see: Pollux, ‘The Interpretation of the Charter’
(1946) 23 BYIL 54–82; LB Sohn, ‘The UN System as Authoritative Interpreter for Its Law’ in
O Schachter and CC Joyner (eds), United Nations Legal Order (Chippenham: Press Syndicate of the
University of Cambridge and the American Society of International Law, 1995); FA Vallat, ‘The
Competence of the United Nations General Assembly’ (1959) 97 Recueil des Cours 207.
11 See, for example, the change in approach taken by the United States and the Soviet Union as
regards multiple admissions to the UN, 3.1.1, esp n 77.

United Nations Law 199
Where expert legal advice is sought by members of a non-judicial principal organ

such as the General Assembly, recourse is frequently had to the Secretariat, itself
a non-judicial principal organ. The Undersecretary for Legal Affairs/UN Legal
Counsel—operating within the Secretariat—issues legal opinions on a wide range
of matters.12
The fact that a non-judicial principal organ has taken a decision does not
necessarily mean that the decision is legal under the UN Charter or intra vires
the powers vested in it by the UN Charter. As Thomas Franck has noted:
[t]he United Nations is the creature of a treaty, and as such it exercises authority legitimately
only insofar as it deploys powers which the treaty parties have assigned to it [as] modestly
augmented by a ‘penumbra’ of other powers which are necessarily incidental to the effective
implementation of the enumerated ones.13
However, as we shall examine below, the Court has called for the decisions of the
principal organs to be presumed intra vires; moreover, it has consistently found the
presumption to be borne out.14 The generally deferential treatment of the activities
of the other principal organs by the Court in its advisory function has served as
acknowledgment of the important role of non-judicial principal organs in develop-
ing the law relating to the powers and functions of those organs and of the
Organization.15
12 Decisions of the UN Legal Counsel may be relevant to the Court’s decision-making process: see,
for example, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2004] ICJ Rep 136 para 27, where the Opinion of the Legal Counsel on the
General Assembly’s practice as regards Art 12 of the Charter was adopted by the Court. Similarly, in
Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 12, para 18, the Court also cited
the opinion of the Legal Counsel. But cf Application for Revision of the Judgment of 11 July 1996 in the
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Yugoslavia) Preliminary Objections (Yugoslavia v Bosnia and
Herzegovina) [2003] ICJ Rep 7, paras 67–71, where the Court deemed that the Opinion of the
Legal Counsel (8 December 2000), as to the legal status of the Federal Republic of Yugoslavia, did not
reveal previously existing facts, and was not relied upon.
13 T Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995)
219–20. This echoes the approach taken by Judge Hackworth in Reparation for Injuries Suffered in
the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, Dissenting Opinion of Judge
Hackworth, 196, 198: ‘There can be no gainsaying the fact that the Organization is one of delegated
and enumerated powers . . . Powers not expressed cannot freely be implied.’
14 Certain Expenses (n 8); Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opin-
ion) [1971] ICJ Rep 16; Accordance with International Law of the Unilateral Declaration of Independ-
ence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403.
15 Even where the resolutions of a principal organ are non-binding, such as a declaration by the
General Assembly, it is not uncommon for such documents to be relied upon by the Court as reflecting
customary international law: see eg the treatment of the Declaration on Friendly Relations between
States (GA Res 2625 (XXV) (24 October 1970)) in Legality of the Threat or Use of Nuclear Weapons
(Advisory Opinion) [1996] ICJ Rep 226. More generally, the law-making power of the organs—
primarily the Security Council but also the General Assembly—is the subject of extensive literature.
See eg S Talmon, ‘The Security Council as World Legislature’ (2005) 99 AJIL 175; MD Öberg, ‘The
Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of
the ICJ’ (2005) 16 EJIL 879; M Barelli, ‘The Role of Soft Law in the International Legal System: The
Case of the United Nations Declaration on the Rights of Indigenous Peoples’ (2009) 58 ICLQ 957.
Because the focus of this chapter is the influence of the Court on the development
of the law relating to the UN rather than the influence of the UN non-judicial
principal organs, the law-making role of the non-judicial organs per se is largely
beyond its scope. Yet it would be somewhat artificial to speak in terms of the Court
developing the law autonomously, especially when the Court bases its decisions
relating to the law affecting the functioning of the Organization or its non-judicial
principal organs on the activities of those organs (inter alia, decisions, resolutions,
legal opinions, reports, conduct, or debates). Accordingly, in part 2 of this chapter,
we intend to consider the impact of the Court’s findings with respect to the
interpretation of the Charter, and the functioning and status of the UN as an
international organization. In part 3, we will examine the Court’s contribution to
understanding the functioning of the UN’s principal organs, and will consider the
Court’s treatment of the powers and functions of the UN’s non-judicial organs, in
particular the Security Council and the General Assembly, but also, to a lesser
extent, ECOSOC and the Secretariat.16 Part 4 will address the question of how the
Court has perceived the limits of its own powers and those of the other principal
organs, analysing the particular question of whether the Court may review the
powers of the Security Council.
2. The United Nations as an international organization

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

17 As has been suggested by Hambro: see Pollux (n 10) 54; O Schachter, ‘Book Review: Hans
Kelsen, The Law of the United Nations’ (1951) 60 Yale LJ 193.
18 See the discussion by Vera Gowlland-Debbas in this volume at Chapter 3.
19 Perhaps most notable in this regard are the ‘supremacy clause’ embodied in Art 103 of the
Charter and the ability of its organs to engage directly with non-member states: see eg Art 32; Art 35,
para 2; and Art 92, para 2.
telos, both through an examination of its travaux préparatoires20 and the subsequent
practice of its principal organs and its member states.21
Given the immense power of an instrument such as the Charter, the authority
with which the power of interpretation rests is important. Although the power of
authoritative interpretation of the Charter was left unspecified in 1945,22 that the
Court possesses an important role in this endeavour is now settled. This is partly
because, unlike with the non-judicial principal organs, the Court can, through the
mechanism of the judicial proceeding and the application of law to a set of concrete
disputes or questions put before it, formulate and articulate norms in legal form. In
some respects, it functions to strengthen norms already elucidated by other UN
organs,23 conferring the imprimatur of legality upon them. The Court moreover
‘benefits from a unique status that confers on it exceptional authority but which
also imposes on it certain restrictions that it must confront particularly in its
relations with the other principal organs of the United Nations, essentially in
the pivotal area of the maintenance of international peace and security’.24 As the
principal judicial organ of the Organization, the Court’s interpretation of the
Organization’s constitutive instrument is thus of heightened importance.
The Court itself has expressly affirmed its power to interpret the Charter,
beginning with its very first Advisory Opinion (Admission of a State), in which it
concluded that a capability to interpret the Charter could not be excluded from the
normal exercise of its judicial power.25 Subsequent advisory opinions involving the
20 The travaux préparatoires for the Charter may be found in United Nations Information
Organizations, Documents of the United Nations Conference on International Organization, Doc 1

(English) G/1 (1945) (‘UNCIO’). See also J Kammerhofer, Uncertainty in International Law:
A Kelsenian Perspective (Abingdon: Routledge, 2011) 99; and S Schwebel, ‘May Preparatory Work
be Used to Correct Rather than to Confirm the “Clear” Meaning of a Treaty Provision?’ in
J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour
of Krzysztof Skubiszewski (The Hague: Kluwer, 1996) 541, 543: ‘there is simply too much State
practice and judicial precedent that accords preparatory work a greater place.’
21 A frequently cited example of this approach is the manner in which abstaining votes by the
permanent members of the Security Council have come to fall within the expression ‘concurring votes
of the permanent members’ contained in Art 27, para 3 of the Charter. Through practice, it has come
to be ‘deemed as a constitutionally valid interpretation of the notion of “concurrence” ’, and acknow-
ledged as such by the Court in Namibia (n 14) 22, para 22. See Sands and Klein, Bowett’s Law of
International Institutions (London: Sweet & Maxwell, 6th edn 2009) 278. See also B Simma and H-P
Kaul, ‘Article 27’ in B Simma (ed), The Charter of the United Nations: A Commentary (Oxford: OUP,
2nd edn 2001) esp 498, where it is noted that, despite the abstention of all five permanent members, in
1973 a resolution was adopted pursuant to Art 27.
22 Although the Charter itself is silent, the power of the Court to interpret the Charter had already
been debated in 1945: see H Fakher, The Relationships Among the Principal Organs of the United
Nations (Ann Arbor: University of Michigan Press, 1951) 141; M Lachs, ‘The Decision-Making
Powers and the Judiciary within the United Nations’ in Fischer et al (eds), Festschrift für Stephan
Verosta zum 70. Geburtstag (Berlin: Duncker & Humblot, 1980) 395; and UNCIO Documents (n 20)
vol XIII, 653–4, 668–9, 687–8, 709–10, 719–20, 831–2.
23 A Pellet, ‘Strengthening the Role of the International Court of Justice as the Principal Judicial Organ
of the United Nations’ (2004) 3(2) J L and Practice of Intl Courts and Tribunals 159, 168.
24 Pellet (n 23) 160–1. See also ST Bernárdez, ‘La fonction de la Cour internationale de Justice:
tendances actuelles du règlement judiciaire’ in E Yapko (ed), Liber Amicorum Judge Mohammed
Bedjaoui (The Hague: Kluwer, 1999) 485, 490.
25 Conditions for Admission of a State to Membership in the United Nations (Article 4 of the Charter)

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

Decisions of the Court have shown it to be at pains to facilitate the successful
functioning of the Organization, through its recognition that the UN is an
international organization of an extraordinary nature, unrivalled in terms of its
importance and in terms of the powers bestowed upon it by its member states. The
jurisprudence of the Court has touched on a number of areas relating to the UN’s
relationship with its member states,34 with non-member states,35 and with its
specialized agencies (vis-à-vis the member states of those specialized agencies);36
26 Reparation for Injuries (n 13) 185: see 2.2. 27 Reparation for Injuries (n 13) 182.
28 International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128, 131 ff.
29 Certain Expenses (n 8) 167. See 3.2.1.
30 Certain Expenses (n 8) 168, where it affirmed the powers of the various principal organs,
including the Court itself, in interpreting the Charter.

31 Certain Expenses (n 8) 163, regarding the concurrent role of the General Assembly alongside the
Council in peacekeeping; and 163, the exclusive competence of the Security Council to take coercive
action. See also Wall (n 12) 146, where it affirmed the competence of the General Assembly in matters
where the Security Council is deadlocked under the ‘Uniting for Peace’ resolution. For further
discussion see 3.2.2.
32 Namibia (n 14) paras 87 ff; for further discussion see 3.3 and 4.3.1.
33 Effect of Awards of Compensation made by the United Nations Administrative Tribunal (Advisory
Opinion) [1954] ICJ Rep 47, 57.

34 See Reparation for Injuries (n 13), discussed in 2.2. In addition, it has considered the obligations of
member states when confronted with a mandatory Security Council decision (Questions of Interpretation
and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v UK )
(Preliminary Objections) [1998] ICJ Rep 9 (‘Lockerbie (Preliminary Objections)’), discussed in 4.3.1) or
a General Assembly resolution that is not ‘merely hortatory’ (Certain Expenses (n 8), discussed in 3.2.1).
Member states are also bound by obligations under the Convention on Privileges and Immunities entered
into by the UN and member states: see eg Applicability of Article VI, Section 22, of the Convention on the
Privileges and Immunities of the United Nations (Advisory Opinion) [1989] ICJ Rep 177 (‘Mazilu’), and
Cumaraswamy (n 8), where the Court considered the nature of the breadth of immunities from national
law; see Obligation to Arbitrate (n 12) on the UN’s relationship with the United States.
35 In Reparation for Injuries (n 13), discussed in 2.2, the Court found that the UN possesses
international legal personality opposable to member states and non-member states alike.
36 See MS Amr, The International Court of Justice as the Principal Judicial Organ of the United
Nations (The Hague: Kluwer, 2003) 159–67 and his discussion of Mazilu (n 34), and Cumaraswamy
(n 8), Obligation to Arbitrate (n 12), and the Interpretation of the Agreement of 25 March 1951 between
the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73.
its ability to afford protection to its staff 37 and ensure their fair treatment;38 the
scope of the powers of the principal organs to establish subsidiary organs;39 and
others. One such decision, with respect to the contribution made by the Court to
the current understanding of the UN’s role and status as an international organiza-
tion, is particularly noteworthy. The Reparation for Injuries Advisory Opinion,
sought by the General Assembly in 1948, involved the question of whether the
United Nations had the capacity to bring an international claim against a govern-
ment with a view to obtaining reparation in respect of damage caused (a) to the UN
and (b) to its agent.40 The Court’s finding, that the UN possesses legal personality
on the international plane which is opposable to member states and non-member
states alike, as well as the capacity to claim on its own behalf and that of its agent,
demonstrated the Court’s confidence in the new Organization and ‘provided a rock
solid, incontrovertible foundation for the Organization’s future action’.41 More-
over, the Opinion provides a valuable early illustration of the broad and purposive
method of interpretation that the Court has tended to use when considering the
Organization’s powers in circumstances where the Charter is ambiguous or silent.
In order to determine whether the UN possessed the capacity to bring an
international claim, the Court needed first to determine whether the Organization
had international personality. Because the Charter did not expressly confer person-
ality on the Organization, the Court turned instead to the functions of the
Organization, suggesting that such functions implied certain powers as necessary
for its work.42 Here it focused on the important—and unprecedented—nature of
the characteristics bestowed upon the UN by its members in the Charter (its
structure, its relationship with its members,43 the ‘important character’ of its
political tasks, and its legal capacities44) and its practice (‘in particular the conclu-
sion of conventions to which the Organization is a party’45). Through this analysis,
the Court found that the UN was an international person: it ‘was intended to
37 The most obvious example is Reparation for Injuries (n 13).

38 See the discussion of Effect of Awards (n 33) in 3.1.3.
39 Application for Review of Judgment No 158 of the United Nations Administrative Tribunal
(Advisory Opinion) [1973] ICJ Rep 166 and Effect of Awards (n 33).
40 Reparation for Injuries (n 13) 178. Although it will not be discussed here, the Court also
considered the question of how a claim by the UN on behalf of a victim was to be reconciled with
(possibly competing) claims by the state of which the victim was a national.
41 Statement by P O’Brien, Under-Secretary-General for Legal Affairs, The Legal Counsel, Seminar
on the International Court of Justice, Informal Meeting of Legal Advisers, New York, 25 October 2011,
<http://legal.un.org/ola/media/info_from_lc/POB%20Statement%20Legal%20Advisers%20meeting%
202%20_ICJ%20seminar%202011_.pdf> (accessed 17 May 2013).
42 The Court noted, in particular, how the Organization had been entrusted with ‘special tasks’:
Reparation for Injuries (n 13) 178.

43 Reparation for Injuries (n 13) 179. The Court noted that in becoming a party to the UN Charter,
member states agreed to give the UN every assistance in its actions (Art 2(5)), pledged to accept and
carry out the decisions of the Security Council, and authorized the General Assembly to make
recommendations to them.
44 Reparation for Injuries (n 13) 179 The Court observed that the Charter gives the Organization
legal capacity and privileges and immunities in the territory of each of its members and provides for the
conclusion of agreements between the Organization and its members.
exercise and enjoy, and is in fact exercising and enjoying, functions and rights
which can only be explained on the basis of the possession of a large measure of
international personality and the capacity to operate upon an international plane’.46
The Court’s emphasis on the breadth and importance of the Organization’s
purposes, and its accompanying desire to ensure that it is successful in achieving
them, recurs frequently in the Court’s jurisprudence. So too has its tendency to give
considerable weight to the Organization’s past practice in determining the extent of
its powers, an issue that will be revisited below in the discussion of the powers and
functions of the non-judicial principal organs.47
Having found the Organization to possess personality on the international
plane, the Court then considered whether the Organization possessed the cap-
acity to bring an international claim on its own behalf against a member state.48
Once again the Charter was silent; accordingly, the Court considered the ques-
tion by analysing the functions with which the Organization had been entrusted.
The Court found that the UN had been endowed with such a capacity, noting
that it was impossible to see how it could otherwise obtain reparation.49 On the
related question of whether the UN had the capacity to bring an international
claim on its own behalf against a non-member state, the Court observed as
follows:
[F]ifty States, representing the vast majority of the members of the international commu-
nity, had the power, in conformity with international law, to bring into being an entity
possessing objective international personality, and not merely personality recognized by
them alone, together with capacity to bring international claims.50
The finding that an international organization possessed a status of such import-
ance that it had an effect on all sovereign states, whether or not they were party to its
constitutive treaty, made clear that the Court considered the UN to be unprece-
dented in nature and of objective significance on the international plane.51 The
46 Reparation for Injuries (n 13) 179. 47 See 3.1.

48 This question arose because, unlike a state, the UN did not possess ‘the totality of international
rights and duties recognized by international law’. What rights and duties it did hold depended ‘upon
its purposes and functions as specified or implied in its constituent documents and developed in
practice’: Reparation for Injuries (n 13) 180.
50 Reparation for Injuries (n 13) 185. This particular quotation is constantly cited, almost for more
than it can bear, with respect to the formation of customary international law. Yet it bears recalling
that, at the time of the Charter’s drafting, fifty states represented nearly the totality of the world’s states
recognized at the time, save for the defeated Axis powers.
51 While the Court’s reasoning on the point is limited, it does not appear compatible with its
earlier reasoning in relation to its finding that the UN has international legal personality. There the
Court focused on the special tasks that had been vested in the UN by its members and the unusual
way in which the states parties to the Charter had defined their position in relation to the
Organization. Clearly such considerations are of no relevance as regards non-member states. Yet
the Court insisted on the objective nature of the UN’s legal personality, a personality that could be
opposed against non-member states with no relation to the Organization. Although the question of
the objective personality of an organization has receded in importance with respect to the UN in
view of its now-universal membership, the question remains live when considering other inter-
national organizations or supranational organizations, in particular the international personality
claimed for the European Union: see the Treaty on European Union and the Treaty Establishing
Court then examined whether the UN possessed the capacity to claim on behalf of
an agent. It observed that ‘[u]nder international law, the Organization must be
deemed to have those powers which, though not expressly provided in the Charter,
are conferred upon it by necessary implication as being essential to the performance
of its duties’.52 While this general principle is perhaps uncontroversial, its applica-
tion to the facts was not, leading to a split among the judges. To the majority,
‘[u]pon examination of the character of the functions entrusted to the Organization
and of the nature of the missions of its agents, it [was] clear that the capacity of the
Organization to exercise a measure of functional protection of its agents arises by
necessary intendment out of the Charter’.53 According to Judge Hackworth’s
partial dissent, however, no such necessity had been shown to exist in the circum-
stances.54 The question of what powers are, in fact, necessary—or, put another
way, just how necessary a power must be for it to be judged as being implied—is
one that has been returned to in the Court’s subsequent case law regarding the
powers of non-judicial principal organs and one that will be further developed
below.55
The Court’s finding that the UN possessed international legal personality was a
‘breakthrough’.56 Writing in the 1950s, Lauterpacht suggested that the Court had
acted ‘boldly and by way of direct challenge to what was considered the traditional
view’;57 to him, the significance of the Opinion lay ‘not so much in the recognition
of the international personality of the United Nations as in the final and formal
rejection of the view that States can only be subjects of international law’.58 The
Opinion, which remains amongst the most important affecting the legal status of
the UN, has been cited repeatedly in the subsequent case law of the Court59 and
the European Community, as amended by the Treaty of Lisbon (13 December 2007), OJEU
C 83, vol 53 (30 March 2010), Art 46 (A).
52 Reparation for Injuries (n 13) 182. It relied on the earlier application of this principle of law by the
PCIJ to the International Labour Organization in Competence of the ILO to Regulate Incidentally the
Personal Work of the Employer (Advisory Opinion) (1926) PCIJ Ser B No 13, 18.
53 Reparation for Injuries (n 13) 184. To the majority, such a power was necessary for the UN to
adequately protect its agents in order ‘to ensure the efficient and independent performance of [its]
missions and to afford effective support to its agents’ (183).
54 Reparation for Injuries (n 13). See also the Dissenting Opinion of Judge Hackworth, 198, who
raised another issue as regards implied powers, which to him must ‘flow from a grant of expressed
powers’.
55 See 3.1.
56 J Sztucki, ‘International Organizations as Parties to Contentious Proceedings before the Inter-
national Court of Justice’ in S Muller, D Raić and H Thuránszky (eds), The International Court of
Justice: Its Future Role after Fifty Years (The Hague: Kluwer, 1997) 141, 142–3.
57 H Lauterpacht, The Development of International Law by the International Court, Being a Revised
Edition of The Development of International Law by the Permanent Court of International Justice (1934)
(London: Stevens, 1958) 181.
58 Lauterpacht (n 57), 179. Lauterpacht went so far as to characterize the Opinion as arguably an
example of ‘judicial legalisation’ (179). See also R Higgins, ‘The Development of International Law by
the Political Organs of the United Nations’ (1965) 59 ASIL Proceedings 116, 123: ‘the Court found
that the United Nations had capacity to bring international claims. Although it is in a sense the Court
that is “law-creating” here, it is in another sense merely declaring what the law is.’
59 The Reparation for Injuries Opinion (n 13) was followed by the Court in Cumaraswamy (n 8) esp
paras 50–1, 63–4.

the Administrative Tribunal of the International Labour Organization;60 it has
moreover guided the International Law Commission (ILC) in its work.61 In
addition, the Opinion has been used to justify the practice of the United Nations
in asserting claims in respect of its agents wrongfully injured by states62 and ‘laid
the foundations for the development of treaties relating to the protection of UN
personnel’.63
Although the Court’s reasoning in the Reparation opinion placed great emphasis
on the UN’s unique status among international organizations, its impact has not
been limited to the United Nations. In the words of Shabtai Rosenne, ‘[l]egal
opinion regards this opinion as one of the most important judicial pronouncements
of the present Court and a watershed in the development of the law of intergovern-
mental organizations’.64 Practice would support this: it is now generally accepted
that international organizations other than the UN may possess personality on the
international plane.65 In the WHO and Egypt Headquarters Opinion, the Court
observed that ‘[i]nternational organizations are subjects of international law and, as
such, are bound by any obligations incumbent upon them under general rules of
international law, under their constitutions or under international agreements to
which they are parties’.66 Although this does not suggest that objective inter-
national personality automatically imposes itself on the domestic law level, in
international law at least, the question of the Organization’s standing to make
claims became established.
60 See eg Jurado v ILO (No 1) (1970) 40 ILR 296, 301.

61 The Court’s Opinion in Reparation for Injuries has had a continuing and pervasive influence on
the work of the ILC. See eg J Dugard, Fifth Report on Diplomatic Protection (2004) UN Doc
A/CN.4/538, 4 March 2004, 8–9. Recently, the Opinion was cited no fewer than seven times in
ILC, ‘Draft Articles on the Responsibility of International Organizations, with Commentaries’,
2011, <http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_11_2011.pdf> (accessed
17 May 2013), (at 9, 11, 12, 17, 69, 72, 75). The Opinion was also an important factor in the ILC’s
work on the Convention on the Law of Treaties between States and International Organizations or
between International Organizations, 1986, UN Doc A/CONF.129/15, 19 (1986) reproduced in
(1986) 25 ILM 543 (not yet in force at the time of writing).
62 Fifth Report on Diplomatic Protection (n 61) 9.
63 P d’Argent, ‘Reparation for Injuries Suffered in the Service of the United Nations (Advisory
Opinion)’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law, vol VIII (Oxford:
OUP, 2012) 880, para 10. See also Statement by P O’Brien (n 41) referring to a ‘vast rich practice’ that
has developed within the UN on the basis of the Reparation for Injuries Opinion. ‘The Organization
has concluded thousands of treaties with its Member States, ranging from simple conference agree-
ments to complex status-of-forces agreements, and it routinely intercedes with Member States to afford
protection for its personnel.’
64 S Rosenne, The Law and Practice of the International Court, 1920–2005: Volume I: The Court and
the United Nations (The Hague: Koninklijke Brill, 2005) 307.

65 HG Schermers and N Blokker, International Institutional Law (The Hague: Kluwer, 3rd edn
1995) 980, para 1569. See also Ago (n 8). See also Sir Franklin Berman’s contribution in this volume at
Chapter 2.
66 WHO-Egypt (n 36) para 37. The Court observed elsewhere that it ‘need hardly point out that
international organizations are subjects of international law which do not, unlike States, possess a
general competence’: Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory
Opinion) [1996] ICJ Rep 66, para 25.
3. Powers of the principal organs
Of the six principal organs created by the UN Charter, all but the Court itself are
non-judicial in nature. As such, the Court’s judicial pronouncements are of
heightened relevance in understanding the distribution of powers and functions
within the United Nations system,67 as well as the limits of these powers. Of
course, it is not enough to look to how the Court interprets the international law
relevant to the work of the non-judicial political organs. One must also look to the
reaction of the non-judicial political organs to the Court’s interpretation; that is to
say, whether they have regard or disregard for the Court’s jurisprudence. Accord-
ingly, the first half of this section will consider the Court’s findings as regards the
powers and functions of the non-judicial principal organs and the limits thereupon.
The second half will turn to the reaction of the non-judicial principal organs to the
findings of the Court, including how they have received such findings, and the
impact the Court’s findings have had on their functioning.
3.1 The Court’s approach to the non-judicial principal organs

As the following section will demonstrate, the Court’s approach to the powers and
functions of the non-judicial principal organs is characterized by considerable
deference to the decision-making of those organs. This is not dissimilar to the
Court’s approach to the Organization as a whole, as discussed: it has shown (a) a
broad understanding of the Organization’s purposes or expressed aims and a
willingness to ensure that it is successful in achieving them, (b) a liberal approach
to implied powers, and (c) a willingness to give considerable weight to the
interpretation of powers by the organ itself, as evidenced by its practice. Taken as
a whole, the restrained posture of the Court vis-à-vis the resolution of normative
conflicts between the principal organs, whilst perhaps belying a minimalist concep-
tion of its role, makes sense within a Charter system envisaged first and foremost as
a system to preserve international peace and security, rather than a comprehensive
system of international cooperation.68
67 On the relationship among various organs of the same international organization see, generally,
J Klabbers, ‘Checks and Balances in the Law of International Organizations’ in M Sellers (ed),
Autonomy in the Law (Dordrecht: Springer, 2007) 141–63. It is true that the Court has engaged
with various subsidiary organs, including the International Criminal Tribunal for the former Yugo-
slavia established by the Security Council (see Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007]
ICJ Rep 43, paras 214–24, the ILC established by the General Assembly (see Gabčíkovo-Nagymaros
Project (Hungary/Slovakia) [1997] ICJ Rep 7 paras 49 ff ), the United Nations Administrative Tribu-
nals (see, generally, Application for Review (158) (n 39), Application for Review of Judgment No 273 of
the United Nations Administrative Tribunal (Advisory Opinion) [1982] ICJ Rep 325, and Application
for Review of Judgment No 333 of the United Nations Administrative Tribunal (Advisory Opinion)
[1987] ICJ Rep 18). For reasons of space, the Court’s relationship with these subsidiary organs will not
be further considered here.
68 UN Charter, Art 1; Sands and Klein (n 21) 22.
In three important advisory opinions, the Court demonstrated its willingness to
opine on the powers and functions (and limits thereupon) of non-judicial principal
organs (or the member states of which they were comprised).
3.1.1 Admission of a State

In the Admission of a State Opinion of 1948, the Court was asked to determine
whether a member state in its vote in the Security Council or the General Assembly
was ‘juridically entitled to make its consent to the admission [of a state to the UN]
dependent on conditions not expressly provided by’ Article 4(1) of the Charter,69
in particular the condition that other states be admitted.70 Commenting for the
first time on its relationship to the other principal organs,71 the Court affirmed that
the conditions in Article 4(1) represented ‘an exhaustive enumeration’ which must
‘be regarded not merely as the necessary conditions, but also as the conditions that
suffice’.72 Reliance upon ‘extraneous considerations . . . would lead to conferring
upon Members an indefinite and practically unlimited power of discretion in the
imposition of new conditions’.73
Three further aspects of the Opinion merit mention. First, it is true that the
Court’s reading of Article 4(1) limited the discretion of member states, and with it,
of the non-judicial principal organs on which they sit. At the same time, the Court
stressed the ‘very wide and very elastic nature’ of the conditions in Article 4(1), and
observed that nothing prevented states from taking into account any factors—
including relevant political factors—‘which it is possible reasonably and in good
faith to connect with’ those conditions.74 In this respect, the Court’s finding that
the discretion of member states was limited to the conditions enumerated in Article
4(1) does not, in actuality, amount to much: they are not required to state a reason
for their vote75 and, even if they choose to, a reasonable modicum of creativity
would suffice for member states to link the political factors behind their decisions
69 Admission of a State (n 25) 58. Art 4(1) provides that ‘[m]embership to the UN is open to
all . . . peace-loving states which accept the obligations contained in the present Charter and, in the
judgment of the Organization, are able and willing to carry out these obligations’.
70 The issue arose because when the applications for membership of Bulgaria, Finland, Hungary,
Italy, and Romania came before the Security Council, the USSR had insisted that all five applicants be
voted upon together. When this proposal was rejected, the USSR vetoed the applications of Finland
and Italy. The other three applicants were rejected by majority vote.
71 Although emphasizing the ‘abstract’ nature of Advisory Opinions: Admission of a State (n 25) 61.
72 Admission of a State (n 25) 62.
73 Admission of a State (n 25) 62–63.
74 Admission of a State (n 25) 63.
75 T Franck, ‘Admission of a State to Membership in the United Nations (Advisory Opinions)’ in
R Wolfrum (ed), Max Planck Encyclopedia of Public International Law, vol I (Oxford: OUP, 2012) 87,
para 7, made the following observation: ‘While the majority’s opinion may be rationally impeccable, it
poses in near-textbook fashion the question of the limits of adjudication in what is essentially a politico-
diplomatic dispute. Since no member is required to state the reason for its vote in either the General
Assembly or the Security Council, the effect of juridically precluding a specific motive for voting is
likely to be that the member’s true motive will thereafter not be revealed, but the vote will remain
unaffected. It cannot be very surprising, then, that the advisory opinion did not succeed in breaking the
deadlock.’
on admission to one of the conditions listed in Article 4(1).76 Secondly, by

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

The question of the admission of new states, given continued Soviet vetoes over
resolutions recommending admission that was not en masse, continued to embroil
the Court in the following years, with a second request by the General Assembly
relating to membership being submitted in November 1949.78 The request con-
cerned whether the General Assembly could admit a state to the Organization in
the absence of a recommendation from the Security Council, despite the fact that
Article 4(2) of the Charter provides that admission ‘will be effected by a decision of
the General Assembly upon the recommendation of the Security Council’. The
Court held that the wording was clear and that the Council’s recommendation
constituted a condition precedent for the Assembly’s decision: both were ‘indis-
pensable to form the judgment of the Organization’ and effect admission.79
Several factors explain the Court’s reasoning here. Foremost is the plain text of
the Charter itself, which clearly indicated that the General Assembly could not act
76 H Lauterpacht suggests that member states could exercise a level of creativity, whereby they
could argue, ‘not necessarily in bad faith, that most political factors are relevant’. Lauterpacht, (n 57)
148–52. So, for example, Soviet Russia might argue—‘not very plausibly, but not necessarily in bad
faith’—that when it voted against the admission of Italy on the ground that Bulgaria had not been
admitted, that a ‘clearly political motive might, in some indirect fashion, have been relevant to the
question of the ability and willingness of Italy to carry out the obligations under the Charter’
(Lauterpacht). See 3.4, for a discussion of how the Opinion was received by the General Assembly
and the Security Council.
77 The background to the practice is complex. At a meeting in August 1946, the US representa-
tive submitted a draft resolution to recommend the admission of eight states at the same time. The
representative of the USSR, amongst others, objected to this approach, arguing that the Security
Council was bound to discuss each application separately. The US representative withdrew the draft
resolution. In September of the following year, the representative of Poland submitted a draft
resolution to recommend that five applicants (Bulgaria, Finland, Hungary, Italy, and Romania) be
admitted at the same time. This time it was the US representative, amongst others, who insisted that
the applications be examined separately and the representative of the USSR who insisted that all five
be considered together. A resolution was adopted (nine votes to two) calling for each application to
be voted upon separately. See United Nations, Repertoire of the Practice of the Security Council
1946–1951, 282.
78 Competence of the General Assembly for the Admission of a State to the United Nations (Advisory

79 Competence of the General Assembly (n 78) 7–8.
without the Security Council’s recommendation.80 Had the Court found that the
General Assembly could act without the Security Council, it would have denuded
the latter organ of a power expressly vested in it by the Charter. So to do ‘would
almost nullify the role of the Security Council in the exercise of one of the essential
functions of the Organization’,81 and could have led to a strong, negative reaction
from the Council (and the permanent states seated on it). Later opinions show that
its position is relatively consistent with the Court’s case law: in other cases where
the Court has been charged with determining the relative powers of principal
organs, it has generally been able to interpret the Charter in such a way that two
non-judicial principal organs could possess concurrent powers.82
Moreover, the request involved advice on prospective action by the General
Assembly; it was not asked to determine, ex post facto, whether the General
Assembly had acted ultra vires. The Court’s unwillingness to find retrospectively
that another principal organ has acted beyond its powers is arguably linked with its
tendency to attach considerable importance to the practice of the organs, as
discussed.83 As the Court itself observed, the General Assembly and the Security
Council had ‘consistently interpreted’ Article 4 to the effect that the Council’s
recommendation was a necessary condition for the Assembly to admit a new
member.84 The contrary view, which had originated with Argentina in the Assem-
bly and was also submitted by it to the Court,85 did not find much favour.86
80 The Court, rightly, did not consider any argument relating to the travaux préparatoires, noting
that the Charter was unambiguous: Competence of the General Assembly (n 78) 8.
81 Competence of the General Assembly (n 78) 9.
82 See, for example, the discussion at 3.1.3 of the overlapping role of the Secretariat and the General
Assembly, discussed in Effect of Awards (n 33); or the discussion of the overlapping role of the General
Assembly and the Security Council in relation to international peace and security, considered in
Certain Expenses (n 8), at 3.2.1.
83 See Reparation for Injuries (n 13), discussed in 2.2.
84 Competence of the General Assembly (n 78) 9. The Court also pointed to the Rules of Procedure of
the General Assembly itself, which required the Council’s recommendation as a condition for decision,
Art 126.
85 See the Written Statement of the Republic of Argentina in the Competence of the General Assembly
Opinion (n 78) in Pleadings, Oral Arguments, Documents of the International Court of Justice (The
Hague: ICJ Publications, 1948), 123, 125–7, to the effect that because Art 4(2) referred to a Security
Council ‘recommendation’ and because only ‘decisions’ were binding, the content—or even the
existence—of a resolution was not determinative. As is evident from their written statements, most
other states were opposed to Argentina’s approach.
86 But cf the Dissenting Opinion of Judge Álvarez, Competence of the General Assembly Opinion
(n 78) 20, who suggested that, as regards matters of admission at least, the General Assembly possessed
a reviewing function, such that it could determine whether or not the Security Council’s power of veto
had been abused. A variation on the ‘abusive veto’ argument was embraced by former British Prime
Minister Tony Blair when he advised the BBC on 6 February 2003 that if a country ‘unreasonably’
vetoed a resolution further to SCR 1441, which gave Saddam Hussein’s Government in Iraq a final
warning, then ‘I would consider action outside of that’. In testimony before the Chilcot Inquiry into
the War in Iraq, Blair’s Attorney-General Lord Goldsmith distanced himself from the ‘unreasonable
veto’ approach (‘Iraq Inquiry: Blair to Deal with Goldsmith Claims’ BBC News, 18 January 2011,
<http://www.bbc.co.uk/news/uk-politics-12209604> (accessed 17 May 2013)). Perhaps unsurpris-
ingly, neither Álvarez’s ‘abusive veto’ nor Blair’s ‘unreasonable veto’ have been embraced by the
international legal community.
3.1.3 Effect of Awards

In the Effect of Awards Opinion, decided in July 1954, the Court was asked to
consider whether the General Assembly possessed the power to refuse to give effect
to an award made by an employment tribunal established by it. Although the Court
found that the General Assembly lacked the power to act as a judicial organ or to
refuse to give effect to the award under the circumstances,87 the Court made some
efforts to emphasize that the powers and functions of the General Assembly
remained very broad. The Court, replying to an argument that the General
Assembly had acted outside its authority in establishing an employment tribunal
with judicial functions, turned to the General Assembly’s implied powers. Relying
on the stated aims of the Organization—the promotion of freedom and justice,88
which must include, in the view of the Court, justice between the Organization and
its staff 89—and the need to achieve these aims, the Court concluded that the power
to establish a judicial organ to deal with employment disputes had been ‘conferred . . .
by necessary implication as being essential to the performance of its duties’.90
In response to claims to the effect that the General Assembly’s powers were
limited, the Court made several statements of importance. First, the Court con-
cluded that the General Assembly had the power, at its sole discretion, to empower
a subsidiary organ that could bind it.91 Secondly, the Court confirmed that the
General Assembly, by establishing the tribunal, could divest itself of powers
conferred upon it to approve or disapprove expenditures; it cautioned only that
such powers were not absolute.92 Thirdly, the Court affirmed that the General
Assembly, in establishing the employment tribunal, was not trespassing into
staffing matters that fell exclusively within the competence of the Secretariat:
both principal organs enjoyed concurrent roles in that area.93 Finally, the Court
clarified that the General Assembly could establish a subsidiary organ charged with
87 Effect of Awards (n 33) 53: ‘As this final judgment has binding force on the United Nations
Organization as the juridical person responsible for the proper observance of the contract of service,
that Organization becomes legally bound to carry out the judgment and to pay the compensation
awarded the staff member. It follows that the General Assembly, as an organ of the United Nations,
must likewise be bound by the judgment.’
88 Effect of Awards (n 33) 57: ‘the power to establish a tribunal, to do justice between the
Organization and the staff members, was essential to ensure the efficient working of the Secretariat
and to give effect to the paramount consideration of securing the highest standards of efficiently and
integrity. Capacity to do this arises by necessary intendment out of the Charter.’
89 Effect of Awards (n 33) 57: ‘It would . . . hardly be consistent with the expressed aim of the
Charter to promote freedom and justice for individuals and with the constant preoccupation of the
United Nations Organization to promote this aim that it should afford no judicial remedy to its own
staff for the settlement of disputes which may arise between it and them.’
90 Effect of Awards (n 33) 56, referring to Reparation for Injuries (n 13) 182.
91 Effect of Awards (n 33) 58.
92 Effect of Awards (n 33) 58. The Court noted that some part of the UN’s ‘expenditure arises out of
obligations already incurred by the Organization, and to this extent the General Assembly has no
alternative but to honour these engagements’ (58).
93 Effect of Awards (n 33) 60. The Court noted that the Charter envisages the General Assembly as
having the ability ‘at all times to limit or control the powers of the Secretary-General in staff matters’.
functions that the General Assembly did not itself possess—so long as the General
Assembly possessed the relevant powers under the Charter—and that such a
subsidiary organ could bind the General Assembly irreversibly.94
The Effect of Awards Opinion shared certain similarities with the Admission of a
State Opinion: in both, the Court recognized limitations on the powers of the non-
judicial principal organs (and the member states of which they were composed). In
Effect of Awards, it was determined that the General Assembly could not reverse a
binding decision of its subsidiary organ or act judicially; in Admission of a State,
member states of the Security Council or the General Assembly were limited by the
conditions provided in Article 4(1) of the Charter. Yet in each case, the narrowness
of the limitations there enumerated was thrown into sharp relief by the broad
nature of the powers and functions that the Court found to exist: in Effect of
Awards, the General Assembly’s power to establish a judicial subsidiary organ to
deal with labour disputes (despite not having judicial authority itself ) and to
determine, in its own discretion, the precise nature and scope of the measures by
which the power of creating a tribunal was to be exercised; in Admission of a State,
the ability to link factors, including relevant political factors, to the conditions
provided in Article 4(1) of the Charter.
In sum, in considering the allocation of competences, the Court remains
mindful of the distinction between recognizing concurrent powers, as in Effect of
Awards, versus giving one organ such latitude so as virtually to denude another
non-judicial principal organ of its power in an area, as in Competence of the
General Assembly for Admission. One can also observe a reluctance of the Court
to find another principal organ had acted ultra vires its powers. In Effect of
Awards, the Court’s broad interpretation upholding the legality of the establish-
ment of the administrative tribunals included a somewhat surprising finding that
providing judicial relief for employment claims was necessarily intended by the
drafters of the Charter. With Competence of the General Assembly for Admission,
the Court could decide that the General Assembly was lacking in power to
admit member states without the recommendation of the Security Council
without having to make a finding of ultra vires; it was considering proposed
action, rather than reviewing past conduct. The Court is also demonstrably
mindful of the overall interests of the non-judicial principal organs and the
Organization more generally. With the finding in Admission of a State, the
admission of new members was facilitated; with the finding in Competence of
the General Assembly, the Court avoided marginalizing the Security Council as
regards an important function vested in it; with the finding in Effects of Awards,
the undesirable prospect of the General Assembly reversing itself after having
committed to take certain actions having financial implications was avoided. It is
perhaps noteworthy that its opinions in all these cases also reflected the wishes of
the majority of member states.
94 Effect of Awards (n 33) 61.

3.2 Inter-organ power relations

While the Security Council and General Assembly possess concurrent powers in
many areas, the Charter, unlike the Covenant of the League of Nations, provides
that the Security Council shall have ‘primary responsibility for the maintenance of
international peace and security’.95 Moreover, two specific limitations were placed
on the jurisdiction of the General Assembly in the Charter. First, Article 11(2), in
its final sentence, provides that any questions relating to the maintenance of
international peace and security ‘on which action is necessary shall be referred to
the Security Council by the General Assembly either before or after discussion’.
A second, related limitation is found in Article 12(1), which prohibits the General
Assembly from making any recommendation with regard to a dispute or situation
on which the Security Council is exercising the functions assigned to it in the
Charter, unless the Security Council so requests.
In the early years, the Soviet Union’s frequent exercise of its veto power in the
Security Council left many, primarily western states to call for an increased role for
the General Assembly (where, of course, there is no veto power) in matters relating
to peace and security.96 After a series of vetoes in relation to the military enforce-
ment action in the Korean Peninsula (earlier authorized by the Security Council
when the Soviet representative was absent from the Security Council chamber) the
General Assembly passed Resolution 377(V), or ‘Uniting for Peace’,97 which
authorized the General Assembly immediately to consider a matter ‘where there
appears to be a threat to the peace, breach of the peace, or act of aggression’ and the
Security Council has failed to exercise its responsibilities due to an exercise of the
veto.98 It also provided the General Assembly with the authority to make ‘appro-
priate recommendations to Members for collective measures’, including the use of
armed force when necessary.99
The legality of the Uniting for Peace resolution was controversial: in allowing for
a recommendation by the General Assembly for the use of armed force, it was
arguably contrary to the requirement in Article 11(2) that questions of inter-
national peace and security on which ‘action is necessary’ be referred to the Security
Council. Moreover, a recommendation by the General Assembly on a dispute
or situation where the Security Council was ‘exercising . . . the functions assigned
to it in the . . . Charter’ would arguably violate the prohibition embodied in
Article 12(1).100
95 Art 24(1) of the Charter.

96 ND White, The Law of International Organisations (Melland Schill Studies in International
Law) (Manchester: MUP, 2005) 103.
97 GA Res 377A (V) (3 November 1950).
98 ‘Uniting for Peace’ (n 97) operative clause 1.
99 ‘Uniting for Peace’ (n 97).
100 An allegation of a violation of Art 12(1) would presumably not be made if an Emergency Session
of the General Assembly was convoked by the Security Council, as this would presumably be
tantamount to a request for the assistance of the General Assembly.
It is true that the Uniting for Peace resolution has receded in importance and its
substantive aspects are now primarily limited to the General Assembly’s power to
call special sessions. However, two opinions which addressed the question of
concurrent competencies of the General Assembly and the Security Council—
Certain Expenses,101 decided in July 1962, and the more recent Wall Opinion,102
decided in July 2004—help to illuminate wider questions relating to the insti-
tutional law of the United Nations. These will be examined in turn.
3.2.1 Certain Expenses

Six years after the Uniting for Peace resolution was passed, the Court was asked to
consider whether two peacekeeping missions, the UN Emergency Force in the Suez
(UNEF) and the UN Operation in the Congo (ONUC), had been established in
contravention of Article 11(2). UNEF had been established by the General Assem-
bly pursuant to the Uniting for Peace resolution. ONUC, although established by
the Security Council, had been the subject of a General Assembly resolution issued
at an emergency special session of the General Assembly convoked pursuant to the
Uniting for Peace resolution.103
In its Opinion, the Court recognized that Article 24 of the Charter provided that
member states conferred primary responsibility for the maintenance of inter-
national peace and security on the Security Council, and that only it could impose
an explicit obligation of compliance under Chapter VII, but emphasized that the
‘responsibility conferred is “primary”, not exclusive’.104 It stressed the important
role of the General Assembly as regards the maintenance of international peace and
security, a point the Charter makes ‘abundantly clear’.105
The Court also considered that the limitation contained in Article 11(2)
(‘[a]ny . . . question on which action is necessary shall be referred to the Security
Council by the General Assembly . . . ’) had an extraordinarily narrow meaning,
such that it only referred to ‘coercive or enforcement action’.106 Again, at the time
of the Opinion, the use of such action within the Organization was extremely
limited; as such, the narrow meaning attributed to the limitation denuded it of
much of its impact. Despite frequent invocation by states in the oral proceedings
before it, the Court ‘studiously avoid[ed] all mention’107 of whether the Uniting for
Peace resolution was incompatible with the limitations on the General Assembly’s
powers in Article 11(2). This is perhaps because, unlike with the Competence of the
General Assembly for Admission Opinion, a broad interpretation of the General
Assembly’s powers here would not deprive the Security Council of any of its
powers, even as it presented a bold challenge to the latter’s primacy. The Security
101 Certain Expenses (n 8). 102 Wall (n 12). 103 Certain Expenses (n 8) 153.
104 Certain Expenses (n 8) 163. The Court also held that it was ‘only the Security Council which can
require enforcement by coercive action against an aggressor’.
106 Certain Expenses (n 8) 164 (emphasis added).
107 DW Bowett, United Nations Forces: A Legal Study of United Nations Practice (London: Stevens
& Sons, 1964) 291.

Council’s failure to uphold its responsibilities in the area of international peace and
security due to the overuse of the veto may also have played a part in the Court’s
reasoning. The Court did not discuss directly the legality of the Uniting for Peace
resolution; however, in reply to an argument that all measures taken for the
maintenance of international peace and security had to be financed through Article
43 agreements, which were not in force, it commented as follows:
The Court cannot accept so limited a view of the powers of the Security Council under the
Charter. It cannot be said that the Charter has left the Security Council impotent in the face
of an emergency situation when agreements under Article 43 have not been concluded.108
That statement is illustrative of the Court’s focus on upholding the purposes of the
Organization as a whole, a concern also evidenced when the Court turned to the
UN’s purposes in order to determine whether the expenses that had been author-
ized were ‘expenses of the Organization within the meaning of Article 17, para-
graph 2 of the Charter’.109 The Court indicated that ‘when the Organization takes
action which warrants the assertion that it was appropriate for the fulfilment of one
of the stated purposes of the United Nations, the presumption is that such action is
not ultra vires the Organization’.110 It continued: ‘If the Security Council, for
example, adopts a resolution purportedly for the maintenance of international
peace and security’, expenses arising from it ‘must be presumed to constitute
“expenses of the Organization”’.111 In his Separate Opinion, Judge Sir Percy
Spender expanded upon the theme, emphasizing the unique nature of the Char-
ter.112 This approach of emphasizing the sweeping nature of the UN’s purposes—
and the importance of ensuring that it is successful in achieving them—when
interpreting the powers specifically entrusted to the Organization, has recurred in
the Court’s judicial pronouncements.113
3.2.2 Wall
Forty years after the Certain Expenses case, we see a Court that was much bolder
in its treatment of the parameters of the Article 12(1) limitation on the General
108 Certain Expenses (n 8) 167. 109 Certain Expenses (n 8) 167–68.

110 Certain Expenses (n 8) 168. 111 Certain Expenses (n 8) 168.
112 Separate Opinion of Judge Sir Percy Spender, Certain Expenses (n 8) 185: ‘In the interpretation
of a multilateral treaty such as the Charter which establishes a permanent international mechanism or
organization to accomplish certain stated purposes there are particular considerations to which regard
should, I think, be had . . . It may with confidence be asserted that its particular provisions should
receive a broad and liberal interpretation unless the context of any particular provision requires, or
there is to be found elsewhere in the Charter, something to compel a narrower and restricted
interpretation. The stated purposes of the Charter should be the prime consideration in interpreting
its text.’
113 For example, in Application for Review (158) (n 39) paras 14 ff, the Court considered the nature
of the General Assembly’s power to establish subsidiary organs, as provided for in Arts 7(2) and 22 of
the Charter. It found that ‘[t]he object of both those Articles is to enable the United Nations to
accomplish its purposes and to function effectively. Accordingly, to place a restrictive interpretation on
the power of the General Assembly to establish subsidiary organs would run contrary to the clear
intention of the Charter.’ See also Reparation for Injuries (n 13) 179; Namibia (n 14) para 115.
Assembly’s powers and the legality of the Uniting for Peace resolution. The Wall
Opinion involved a request for an advisory opinion from the General Assembly
on ‘the legal consequences arising from the construction of the wall being built by
Israel, the occupying Power, in the Occupied Palestinian Territory’. The reso-
lution requesting the advisory opinion had emerged from an emergency special
session of the General Assembly, called pursuant to the Uniting for Peace
resolution.114 Israel contested the very propriety of instituting proceedings,
claiming that the General Assembly had acted ultra vires its powers in requesting
the advisory opinion, as Article 12(1) precluded the General Assembly from
making a recommendation on a dispute or situation where the Security Council
was exercising its Charter functions. The Court concluded that the General
Assembly’s right to invoke the Uniting for Peace procedure, though rarely used,
had been generally accepted in practice.115
Referring to Certain Expenses, the Court again observed that the Security
Council’s responsibility for the maintenance of international peace and security,
though primary, was not exclusive,116 and proceeded to consider the impact of
Article 12(1) and the Uniting for Peace resolution on the General Assembly’s
functioning. The Court considered the practice of the two non-judicial principal
organs both in the early years of the UN and in more recent times, and
concluded that ‘both the General Assembly and the Security Council initially
interpreted and applied Article 12 to the effect that the Assembly could not make
a recommendation on a question concerning the maintenance of international
peace and security while the matter remained on the Council’s agenda’.117
However, based on the General Assembly’s subsequent interpretation of the
provision, whereby it interpreted ‘the words “is exercising the functions” in
Article 12 of the Charter as meaning “is exercising the functions at this
moment” ’,118 the Court found that ‘the accepted practice of the General Assem-
bly, as it has evolved, is consistent with Article 12, paragraph 1, of the Charter’
and the General Assembly had not ‘exceeded its competence’.119 It held further
that the Tenth Emergency Special Session of the General Assembly, where the
opinion was requested, could ‘properly be seised, under Resolution 377 A (V), of
the matter now before the Court’.120 The Wall case is thus noteworthy as the
findings in the case are based primarily upon the apparently uncontested practice
of the organs,121 moving in some respects away from the plain meaning of
the relevant Charter provision and essentially leaving the limitation denuded of
much of its legal effect.
114 Wall (n 12) para 23. 115 Wall (n 12) para 27.
120 Wall (n 12) para 31.
121 As Klein and Schmahl note, ‘[n]o known protests by the [Security Council] against this course
of action have been made’: see E Klein and S Schmahl, ‘Article 12’ in B Simma et al (eds), The Charter
of the United Nations: A Commentary, vol 1 (Oxford: OUP, 3rd edn 2012) 507, 512, para 11.
3.3 Interpretation of acts of other principal organs

The Court has been restrained in its interpretation of resolutions of the General
Assembly or ECOSOC, though it has indicated that certain of these may reflect
customary international law.122 However, perhaps due to the binding nature of
these, the Court has in two instances provided cautious guidance regarding the
interpretation of Security Council resolutions. In Namibia, the Security Council
(for the first and only time)123 engaged the advisory procedure to request
guidance as to the legality of South Africa’s presence in Namibia after its
declaration, in Security Council Resolution 276, that South Africa’s presence
was ‘illegal’.124 The Court, fenced into a direct interpretation of the legal effects of
the resolution, gave the following guidance on the interpretation of Council
resolutions:
The language of a resolution of the Security Council should be carefully analysed before a
conclusion can be made as to its binding effect. In view of the nature of the powers under
Article 25, the question whether they have been in fact exercised is to be determined in each
case, having regard to the terms of the resolution to be interpreted, the discussions leading to
it, the Charter provisions invoked and . . . all circumstances that might assist in determining
the legal consequences of the resolution of the Security Council.125
It could be said that the Court had there been empowered to produce an authentic
interpretation, given that the request had emanated from the Council.126 In Kosovo,
an Advisory Opinion requested by the General Assembly, the Court seemed to
confirm its statement in Namibia, stating as follows:
While the rules on treaty interpretation embodied in Articles 31 and 32 of the Vienna
Convention on the Law of Treaties may provide guidance, differences between Security
Council resolutions and treaties mean that the interpretation of Security Council resolutions
also require that other factors be taken into account. Security Council resolutions are issued
by a single, collective body and are drafted through a very different process than that used for
the conclusion of a treaty. Security Council resolutions are the product of a voting process as
provided for in Article 27 of the Charter, and the final text of such resolutions represents the
view of the Security Council as a body . . . The interpretation of Security Council resolutions
may require the Court to analyse statements by representatives of members of the Security
Council made at the time of their adoption, other resolutions of the Security Council on the
122 See in particular Nuclear Weapons (n 15) paras 68–70, where the Court stated that a series of
General Assembly resolutions on nuclear disarmament had ‘normative value’, even if by themselves
they were not binding: they could provide evidence important for establishing the existence of a
customary rule, or alternatively, demonstrate the gradual evolution of the opinio juris required for the
establishment of a new rule.
123 See generally R Higgins, ‘The Advisory Opinion on Namibia: Which UN Resolutions are
Binding under Article 25 of the Charter?’ (1972) 21 ICLQ 270.

124 SC Res 276 (30 January 1970), operative clause 2.
126 MC Wood, ‘The Interpretation of Security Council Resolutions’ (1998) II Max Planck Ybk of
UN L 73, 82: ‘Only the Security Council, or some body authorized to do so by the Council, may give an
authentic interpretation [of a Council resolution]’ (emphasis added).
same issue, as well as the subsequent practice of relevant United Nations organs and of States
affected by those given resolutions.127
These unusually full explanations given by the Court together offer an important
contribution to our understanding of how resolutions of the Security Council—
and by possible extension, those of other organs of international organizations—are
to be interpreted: it concedes that although the rules of treaty interpretation
embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties
are relevant, they can be but a starting point. This is surely logical as a matter of
form: although Security Council resolutions are and remain acts of international
law, important distinctions between treaties and resolutions of international organ-
izations exist, as the Court mentioned in Kosovo, and as such, blind reliance on
those articles is unhelpful, as Michael Wood told us already in 1998.128 Instead, it
seems that the intention of the Council must be discerned not only by the words
that it has chosen, but also in the light of other circumstances, including, inter alia,
the peculiarities of the Council’s procedures and the records of deliberations and
statements of Council members.129 However, the formal differences between the
two documents should not be overstated: for example, the multi-layered and diffuse
drafting process for Council resolutions is mirrored by that used in drafting
multilateral treaties. As the Court emphasized in Kosovo, the text agreed upon
after deliberation is itself the embodiment of the decision of the Council’s
members, and is the one affirmatively voted upon; this gives the text a particular
relevance. Thus, the Court’s important statements on the method through which it
considers the resolutions of the Council would be, at the very least, indicative of
how it is prepared to interpret the acts and resolutions of other principal organs.
3.4 Influence and impact of the Court’s findings on the other

principal organs
Analysing the substance of how the Court has interpreted the powers and limita-
tions of the non-judicial principal organs and how it has viewed its role in this
regard does not tell the whole story. Equally important in elucidating the insti-
tutional law of the United Nations is the extent to which its findings have influ-
enced the conduct of the other principal organs, and the member states from which
they are constituted.
Despite the non-binding nature of its advisory opinions, the Court’s potential to
contribute has been felt at a number of levels within the Organization. From the
UN’s earliest days, it has been emphasized that member states ought not to act in
defiance of the law as set forth by the Court. Speaking in 1949, a delegate observed
that an advisory opinion of the Court would provide the General Assembly with ‘an
authoritative opinion on the legal aspects of the question of South West Africa’,
127 Kosovo (n 14) para 94. 128 Wood (n 126) 95.

129 Wood (n 126) 86–7. Wood places emphasis on the fact that Security Council resolutions are
often not self-contained, incorporating by reference other documents such as reports from the
Secretary-General or even the conditions in previous resolutions.
thus placing the General Assembly ‘in a better position to arrive at a solution, the
weight of which would be the greater as a result of having been based upon a legal
study by the principal judicial organ of the United Nations’.130 Other states have
referred to a ‘moral obligation’ to have regard for the findings of the Court:
‘morally . . . it would be a very grave matter indeed if [an advisory opinion] were
to be set at naught by the Council’.131 Yet others have cited ‘their traditional
respect for international law and support for the solution of problems by legal
means’.132 A similar view was expressed by the Assembly itself, in Resolution 2723
(XXV), which provides that any review of the Court’s work should ‘seek to facilitate
the greatest possible contribution by the Court to the advancement of the rule of
law and the promotion of justice among nations’.133 Whether based on a high
regard for the Court, a perceived ‘moral obligation’, or a desire not to be seen to be
acting extra-legally, member states appear, in the main, to treat the findings of the
Court as more or less binding de facto.
Once an advisory opinion has been given by the Court, the practice of the
requesting organ is to pass a resolution thanking the Court for its efforts and
acknowledging the opinion with varying degrees of enthusiasm. So important is the
manner in which advisory opinions are received that the principal organs often
engage in protracted discussions on the wording.134 For example, sometimes the
General Assembly will merely ‘take note’135 of an advisory opinion; at other times
the General Assembly goes further and ‘accepts’,136 ‘accepts and endorses’,137 ‘takes
130 See United Nations, Repertory of Practice of United Nations Organs, Vol 5, Article 96
(1945–1954) 73.
131 United Nations, Repertoire of the Practice of the Security Council, 1946–1951 (n 77) 234. See
also United Nations, Repertory of Practice of United Nations Organs, Supplement No 3, Vol 4
(1959–1966) 24–5.
132 Repertory of Practice of United Nations Organs, Supplement No 3 (n 131) 24–5.
133 GA Res 2723 (XXV), ‘Review of the Role of the International Court of Justice’ (15 December
1970). See also GA Res 3232 (XXIX) (12 November 1974) operative clause 5, where the General
Assembly recommended that United Nations organs and specialized agencies should periodically
review legal questions within the competence of the Court and ‘study the advisability of referring
them to the Court for an advisory opinion’.
134 With the Reparation for Injuries Opinion (n 13)—only the second Advisory Opinion the
General Assembly had requested of the Court—an issue arose as to how the General Assembly should
receive the Opinion. A draft resolution wherein the General Assembly ‘[r]esolves that it accepts the
advisory opinion . . . as an authoritative expression of international law on the questions considered’ was
replaced with the neutral ‘[h]aving regard to the advisory opinion’ after a variety of views were expressed
during the debate as to the authoritative nature of the Opinion: see United Nations, Repertory of
Practice of United Nations Organs, Vol 5 (n 130) 80–2.
135 See eg GA Res 385 (V) (3 November 1950), which took note of the Interpretation of Peace
Treaties Advisory Opinion (n 5); GA Res 3458 (XXX) (10 December 1975), in which it took note
‘with appreciation’ of the Advisory Opinion in Western Sahara [1975] ICJ Rep 12; or GA Res 51/45
[M] (10 December 1996), in which it took note of the Nuclear Weapons Advisory Opinion (n 15).
136 See eg GA Res 449 (V) (13 November 1950), by which the General Assembly accepted the
Advisory Opinion on the International Status of South West Africa (n 28); and GA Res 1854 (XVII)
(19 December 1962), by which the General Assembly accepted the Certain Expenses Advisory
Opinion (n 8).
137 The General Assembly formally accepted and endorsed the Court’s Advisory Opinion in Voting
(Advisory Opinion) [1955] ICJ Rep 67, in GA Res 934(X) (3 December 1955), and its Opinion in
Admissibility of Hearings by the Committee of South West Africa (Advisory Opinion) [1956] ICJ Rep 23,
in GA Res 1047 (XI) (23 January 1957).
note of and endorses’138 or ‘receives with respect’139 an opinion. Certainly, a
resolution accepting an advisory opinion does not make it binding upon that
organ,140 but it provides a signal of that organ’s attitude towards the opinion. At
times, the General Assembly has passed resolutions ‘recommending’,141 ‘urging’142
or even ‘demanding’143 compliance with an opinion of the Court by particular
member states—such as South Africa after the South West Africa Opinion and Israel
after the Wall Opinion—or by all states.144 It has also requested or authorized
the Secretary-General to take action in compliance with an opinion145 or to
conform his practice to the opinion.146 Moreover, the Court’s pronouncements
138 The General Assembly ‘took note of ’ and ‘endorsed’ the Obligation to Arbitrate (Advisory
Opinion) (n 12) in GA Res 42/232 (13 May 1988).

139 An Emergency Session of the General Assembly ‘received with respect’ the Advisory Opinion
issued in Wall: see GA Res ES-10/15 (20 July 2004).

140 However, some representatives in the General Assembly were against ‘accepting’ the Certain
Expenses Opinion (n 8), preferring instead to ‘take note’ of it, on the basis that accepting the
Opinion would amount to ‘an imposition of unagreed obligations of Member States’ and ‘be
equivalent to imposing the compulsory jurisdiction of the Court on the many Member States
which had not yet accepted it’. When the Opinion was ultimately accepted by the General
Assembly (GA Res 1854 A (XVII) (19 December 1962)), some representatives considered this to
mean that ‘the opinion had been given binding force’: see United Nations, Repertory of Practice of
United Nations Organs, Supplement No 3 (n 131) 25. This does not appear to have been the
majority view.
141 For example, GA Res 449 (V) (13 November 1950) relating to South West Africa (1950) (n 28).
142 The General Assembly urged South Africa to take the necessary steps to give effect to the
International Status of South West Africa Opinion (n 28) (GA Res 449 (V) (13 December 1950)) and
‘urge[d] the host state [the United States] to abide by its international legal obligations and to act
consistently with the [Obligation to Arbitrate (n 12)] advisory opinion’: see GA Res 42/232 (13 May
1988).
143 See GA Res ES-10/15 (20 July 2004).
144 For example, after the Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15 the General Assembly recommended to all
states that they be guided in regard to the Genocide Convention by the Advisory Opinion (GA Res
598 (VI) (12 January 1952)). After the Legality of the Threat or Use of Nuclear Weapons Advisory
Opinion (n 15), the General Assembly adopted a resolution underlining the ‘unanimous conclusion of
the Court that there exists an obligation to pursue in good faith and bring to a conclusion negotiations
leading to nuclear disarmament’ and called upon ‘all States to fulfil that obligation immediately by
commencing multilateral negotiations in 1997 leading to an early conclusion of a nuclear-weapons
convention prohibiting the development, production, testing, deployment, stockpiling, transfer,
threat or use of nuclear weapons and providing for their elimination’ (GA Res 51/45[M] (10 December
1996) (115-22-32). During the period 2000–9, ‘countless’ General Assembly resolutions were issued
which followed up on the Opinion (United Nations, Repertory of Practice of United Nations Organs,
Supplement No 10, Vol 6 (2000–2009) (Advance Version) 4). An Emergency Session of the General
Assembly called upon all member states to comply with their legal obligations as mentioned in the
Wall Opinion (GA Res ES-10/15 (20 July 2004)).
145 See GA Res 365 (IV) (1 December 1949), relating to the Reparation for Injuries Opinion (n 13).
As regards the Obligation to Arbitrate Opinion (n 12), the General Assembly requested that the
Secretary-General ‘continue his efforts to ensure the constitution of the arbitral tribunal provided for
under section 21 of the [Headquarters] Agreement’ (GA Res 42/232 (13 May 1988)).
146 For example, after the Genocide Advisory Opinion (n 144), the General Assembly requested that
the Secretary-General conform his practice in respect of reservations to that Convention to the
Advisory Opinion (GA Res 598 (VI) (12 January 1952)).
have led to changes in the agenda of the General Assembly147 and to the establish-
ment of working groups.148
Abstract statements on the Court’s usefulness set aside, the influence of its
judicial pronouncements has a normative aspect, irrespective of their formally
non-binding character. Once the Court has acknowledged the existence of a rule
or an obligation, any debate on a possible course of action is likely to be influenced
by the Court’s finding: ‘if the Court advises, for example, that a certain obligation
exists, the State upon which it is said to rest has not bound itself to accept the
Court’s finding, but it will be in a weak position if it seeks to argue that the
considered opinion of the Court does not represent a correct view of the law’.149 In
fact, it would appear that nothing prevents the principal organ from deciding to
treat an advisory opinion as binding: in the words of the French representative to
the General Assembly, speaking in 1953, ‘as a general rule, advisory opinions
should not be considered to be binding; it [is], however, sometimes useful to
make an exception to that rule’.150 This has happened in practice: in the same
decision in which it requested the Cumaraswamy Advisory Opinion,151 ECOSOC
called on the Government of Malaysia to ‘ensure that all judgements and proceed-
ings in this matter in the Malaysian courts are stayed pending receipt of the advisory
opinion of the International Court of Justice, which shall be accepted as decisive by
the parties’.152
147 For example, after the Court delivered its Admission of a State Opinion (n 25), the item entitled
‘Admission of new Members: . . . (b) Advisory Opinion of the International Court of Justice’ was
included in the agenda of the third session of the General Assembly (Repertory of Practice of United
Nations Organs, Vol 5 (n 130) 77). After the Court delivered the Certain Expenses Advisory Opinion
(n 8), an agenda item was included in the subsequent session of the General Assembly entitled
‘Obligations of Members, under the Charter of the United Nations, with regard to the financing of
the United Nations Emergency Force and the Organization’s operations in the Congo: Advisory
Opinion of the International Court of Justice’ (United Nations, Repertory of Practice of United Nations
Organs, Supplement No 4, Vol 1, Article 96 (1959–1966) 21).
148 For example, after the Certain Expenses Advisory Opinion (n 8) the General Assembly estab-
lished a Working Group to study special methods for financing peacekeeping operations of the United
Nations involving heavy expenditures (GA Res 1854 B (XVII)) (19 December 1962).
149 HWA Thirlway, ‘The International Court of Justice’ in M Evans (ed), International Law
(Oxford: OUP, 3rd edn 2010) 586, 608. For example, as early as 1949, France had characterized
a Soviet draft resolution recommending the simultaneous admission of twelve applicants as
incompatible with the Admission of a State Opinion (n 25) (United Nations, Repertoire of the
Practice of the Security Council, 1946–1951 284); it was eventually opposed as being ‘in disregard’
of the Court by the United Kingdom, France, and Canada (286). Similarly, in 1950, the South
West Africa Advisory Opinion led to debates in the Fourth Committee on the impact of the
Opinion, South Africa of course emphasizing its non-binding nature: Repertory of Practice of
United Nations Organs, Vol 5 (n 130) 83. More recently, although Israel vehemently denied any
binding character of the Court’s Opinion in Wall, the vast majority of states (150 for, six against,
ten abstentions) called upon Israel to comply with its ‘legal obligations as mentioned in the
advisory opinion’: see UN Doc A/RES/ES-10/15 (2 August 2004). In debates, Malaysia, Austria,
India, South Africa, Qatar, Pakistan, Jordan, and Egypt all called upon Israel to comply with its
international legal obligations ‘as confirmed’ by the General Assembly: see Records of the 24th
Meeting of the 10th Emergency Special Session of the General Assembly (16 July 2004), UN Doc
A/ES-10/PV.24.
150 See Repertory of Practice of United Nations Organs, Vol 5 (n 130) 74.
151 Cumaraswamy (n 8). 152 ECOSOC Decision No 1998/297.
The reaction of the Security Council to one advisory opinion, and of the
General Assembly to two other opinions, provide further examples of the
principal organs endorsing, but not immediately applying, the Court’s judicial
pronouncements. When the Court delivered its Namibia Opinion, the Security
Council, encouragingly, passed a resolution which ‘took note’ of and ‘agreed’
with it.153 In addition, the Security Council ‘[d]eclare[d] that . . . all Members of
the United Nations should take [the rights of the people of Namibia] into
account in their dealings with the Government of South Africa’ and ‘[c]all[ed]
upon all States’, inter alia, ‘[t]o abstain from entering into treaty relations with
South Africa in all cases in which the Government of South Africa purports to
act on behalf of or concerning Namibia’ and ‘to abstain from sending diplomatic
or special missions to South Africa that include the Territory of Namibia in their
jurisdiction’.154 The Security Council again referred to the Opinion in 1974, when
it demanded that South Africa make a solemn declaration that it would comply
with the Opinion.155 However, the actual practice of the Security Council was not
necessarily influenced by the reasoning of the Court. One aspect of the Opinion
featured the Court rejecting the view that Article 25 of the Charter, according to
which members agree to ‘accept and carry out the decisions of the Security Council
in accordance with the present Charter’, applied only to enforcement measures
adopted under Chapter VII.156 Yet when the Security Council endorsed the
Opinion, the United Kingdom and France rejected this stance, claiming that the
Council could take binding decisions only under Chapter VII and after an express
determination under Article 39.157 Its subsequent practice suggests that the Secur-
ity Council has inclined more towards the UK/France view than the position of the
Court on the issue.
In 1948, after the Admission of a State Opinion, where the Court denied the
existence of additional membership criteria to those in Article 4(1) of the Char-
ter,158 the General Assembly passed resolutions recommending that members of
the Security Council act in accordance with the Opinion when exercising their
votes on the admission of new members159 and requesting that the Security
Council reconsider the applications for membership of Portugal, Trans Jordan,
Italy, Finland, Ireland, Austria, and Ceylon in the light of the Opinion.160 Despite
this, it was not until 1955, after numerous draft resolutions recommending
153 SC Res 301 (20 October 1971), para 6, where it made specific reference to para 133 of the
Opinion (its Operative Clause).

154 SC Res 301 (20 October 1971), paras 7 and 11.
155 SC Res 366 (17 December 1974).
157 SD Bailey and S Daws, The Procedure of the UN Security Council (Oxford: OUP, 3rd edn 1998)
271. Italy took the view that it was for the Council itself to decide when its resolutions have a binding
character.
158 See 3.1.1, for further discussion of the Opinion.
159 GA Res 197 A (III) (8 December 1948).
160 GA Res 197 B (III) (8 December 1948) and C (III) (8 December 1948).
admission were vetoed based on factors unconnected with Article 4(1), that the
Security Council agreed to admit sixteen states simultaneously.161 Elihu Lauter-
pacht has noted that while the Security Council ‘collectively reversed their position’
on the matter, this was done ‘long after their action could be attributed to the force
of the Opinion of the Court’.162
Another Opinion facing resistance at the time was Certain Expenses. When it was
considered by the General Assembly at its seventeenth session (1962), the non-
binding nature of advisory opinions was emphasized by certain states, with some
representatives being against ‘accepting’ the Opinion, preferring instead to ‘take
note’ of it.163 These same representatives questioned the soundness of the Opinion
and argued that its non-unanimous nature meant that it did not constitute an
authoritative pronouncement on a point of law.164 Despite the fact that the
Opinion was ultimately accepted by the General Assembly, the Soviet bloc con-
tinued in its refusal to make certain payments, leading to ‘a situation which had to
be resolved by novel diplomatic means, rather than by the application of the law as
determined by the Court’.165 To Lauterpacht, the Certain Expenses case, like the
Admissions case, represents an illustration ‘of the lack of controlling influence of
even a clear Opinion of the Court’.166 However, it is perhaps preferable to end this
part of the discussion with the following, more optimistic, observation from the
same author:
[T]hough it would be easy to view [the reception by the non-judicial organs of the
Admissions and Expenses cases] as evidence of the United Nations’ unconcern with the
law, it would probably be a mistake to do so. Each, it is true, may be represented in
that light . . . [But t]he fact remains that in each case the determination of the matter
by the Court played a role. It established a framework within which negotiations
could take place and precluded most Members from asserting the direct contrary of
what the Court had said. They remain as examples of the operations, albeit imper-
fect, of law in the activities of international organizations. They remind us that the
law by itself is not a totally controlling element. But this reminder cannot deprive the
law of its value, or us of a justification for pursuing its study. We must merely be
aware of its shortcomings.167
161 Franck (n 75) describes this as a package deal for the simultaneous admission of sixteen
members ‘in all but form’ (para 10). The Security Council passed a draft resolution put forward by
the USSR by which it recommended the admission of sixteen countries (SC Res 109 (14 December
1955)). The countries were discussed separately by the Security Council and while a single resolution
was passed, the Security Council ‘approved each of the applications listed in the USSR draft and
adopted the draft resolution as a whole’ (United Nations, Repertoire of the Practice of the Security
Council 1952–1955, 98).
162 E Lauterpacht, ‘The Development of the Law of International Organization by the Decisions of
International Tribunals’ (1976) 152 Recueil des Cours 381, 392.

163 Repertory of Practice of United Nations Organs, Supplement No 3 (n 131) 24.
164 Repertory of Practice of United Nations Organs, Supplement No 3 (n 131) 25.
165 Lauterpacht (n 162) 392.
4. The Court’s powers vis-à-vis the non-judicial principal organs
4.1 Limits on the competences of the principal organs

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

Finding limits in the substantive law is not difficult: they could be said to exist
through the application of jus cogens norms to the institutional law of the UN. Such
168 That the Court has the power to review judicially the acts of specialized agencies is not
questioned. It has done so in two cases, in Constitution of the Maritime Safety Committee of the Inter-
Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 171, where it
reviewed an election to membership of one of the Assembly of the Committee to conclude that the
election could not be justified by reference to the Organization’s constituent instrument; and in Appeal
Relating to the Jurisdiction of the ICAO Council (India v Pakistan) [1972] ICJ Rep 46, where, in
considering a decision of the ICAO Council challenged by India as non-constitutional, the Court had
to interpret the Organization’s constituent instrument and concluded that the Council was indeed
competent so to do. But these are specialized agencies, not principal organs, and the constitutional
relationship of the Court is different in respect of the latter.
169 See JE Álvarez, ‘Judging the Security Council’ (1996) 90 AJIL 28; B Martenczuk, ‘The Security
Council, the International Court and Judicial Review: What Lessons from Lockerbie?’ (1999) 10 EJIL
517; MJ Matheson, ‘ICJ Review of Security Council Decisions’ (2004) 36 George Washington Int L Rev
615; D Akande, ‘The International Court of Justice and the Security Council: Is there Room for
Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46 ICLQ 309;
N Lavranos, ‘UN Sanctions and Judicial Review’ (2007) 76 Netherlands JIL 1; M Bedjaoui, The New
World Order and the Security Council: Testing the Legality of its Acts (Dordrecht: Martinus Nijhoff,
1994); E de Wet, ‘Judicial Review as an Emerging General Principle of Law and its Implications for the
International Court of Justice’ (2000) 47 Netherlands Int L Rev 181.
170 R Higgins in M Evans, Remedies in International Law: The Institutional Dilemma (Oxford: Hart
Publishing, 1998) 7.
171 D Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter: Legal
Limits and the Role of the International Court of Justice (The Hague: Kluwer, 2001) 270.
172 Separate Opinion of Judge De Castro in Namibia (n 14) 180.
a conclusion would flow naturally from the doctrine of nemo plus juris transfere
potest quan: if states cannot escape jus cogens obligations themselves then they
certainly cannot create an organization unbound by it.173 Thus, it seems clear
that these norms cannot be set aside by member states of the United Nations like
jus dispositivum: the Council is not, as was memorably claimed by John Foster
Dulles, ‘a law unto itself ’,174 unbounded by legal principles. Yet one need not
situate limits on the Council’s authority by reference to jus cogens norms: Article 2
of the Charter stipulates that the principles contained therein bind both the
Organization and its membership; and moreover, all principal organs are limited
by the rules of general international law,175 if not by Article 1, paragraph 1 of the
Charter itself, which recalls that among the purposes of the Organization is the
settlement of disputes in conformity with justice and international law.176
Even those who advocate judicial review of the Council’s acts by the Court admit
a number of problems, not least the fact that, because the Council is unable to
appear before the Court under Article 34(1) of the Statute, for the Court to review
its acts would raise questions relating to the audi alteram partem principle. But there
are other a priori restrictions on judicial review. In the Aegean Sea Continental Shelf
Judgment,177 the Court seemed to endorse the principle of litispendence;178 invok-
ing this principle would restrict the possibility of judicial review when a matter has
already been under review by the Security Council. Yet in Tehran Hostages, the
Court concluded that there was nothing irregular in the ‘simultaneous exercise of
[the] respective functions’ of the Security Council and Court.179 Moreover, in the
jurisdictional phase of Nicaragua, the Court confirmed its earlier finding in Certain
Expenses that, in acting under Chapter VII, the United Nations Charter confers not
exclusive, but only primary competence on the Security Council; the Court’s ‘purely
judicial function’180 could therefore be complementary.181 This was reflected in
Schweigman’s conclusion based, inter alia, on Lockerbie that ‘the seizure of a matter
173 A Tzanakopoulos, Disobeying the Security Council (Oxford: OUP, 2011) 80. See also E De Wet,
‘Judicial Review of the United Nations Security Council and General Assembly through Advisory
Opinions of the International Court of Justice’ (2000) 10 Swiss Rev Intl and Eur L 237, 263–4.
174 J Foster Dulles, War or Peace (New York: Macmillan, 1950) 194–5. The same view was
memorably expressed in Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v Yugoslavia) (Further Provisional Measures) [1993] ICJ Rep 325,
Separate Opinion of Judge ad hoc Sir Elihu Lauterpacht, para 100: ‘The concept of jus cogens operates
as a concept superior to both customary international law and treaty. The relief which Article 103 of
the Charter may give the Security Council in case of conflict between one of its decisions and an
operative treaty obligation cannot—as a matter of simple hierarchy of norms—extend to a conflict
between a Security Council resolution and jus cogens. Indeed, one only has to state the opposite
proposition thus—that a Security Council resolution may even require participation in genocide—for
its unacceptability to be apparent.’
175 M Shaw, ‘The Security Council and the International Court of Justice: Judicial Drift and
Judicial Function’ in Muller et al (eds) (n 56) 219, 225.

176 Amr (n 36) 282.
177 Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3; see Amr (n 36) 282.
178 Schweigman (n 171) 219.
179 United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, 21.
180 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) ( Jurisdiction
and Admissibility) [1984] ICJ Rep 392, para 95.

181 Nicaragua v USA ( Jurisdiction and Admissibility) (n 180) para 95.
by the Security Council does not in itself preclude the Court from adjudging the
same matter’.182
It is true that the Court has never defied the Council and declared its action
either to be contrary to the Charter or to international law. But one cannot
characterize the Court’s perception of its role as purely deferential, as its reticence
does not settle the question of the relationship between the Council and the Court,
which in fact is rather indeterminate, given the silence of the Charter and the
Statute in relation to any such power.183 In fact, on at least two occasions, in
the provisional measures phase of Lockerbie and in the Kosovo Advisory Opinion,
the Court has, through its advisory function, engaged directly with interpreting the
substance of Security Council resolutions, raising questions as to the scope of its
activity and accusations of quasi-judicial review.
4.3 The Court and intra-institutional dialogue

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

The Lockerbie cases concerned the extradition of two Libyan intelligence officers
suspected of involvement in the bombing of Pan Am Flight 103 over Lockerbie,
Scotland. The United States and the United Kingdom requested the extradition of
the suspects and, when this did not occur, urged the Council to adopt Resolution
731 (1992),185 under Chapter VI, calling on Libya to do so. Libya then filed a
request for provisional measures before the Court, claiming that the extradition
182 Schweigman (n 171) 261.

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

185 SC Res 731 (21 January 1992).
requests violated Libya’s rights under the 1971 Montreal Convention.186 Immedi-
ately prior to the Court’s decision on provisional measures, the Council adopted
Resolution 748 (1992),187 this time under Chapter VII, demanding the surrender
of the suspects.188 In view of the fact that latter resolution was established under
Chapter VII, the majority upheld its binding effect, concluding that Libya’s
claimed rights under the Montreal Convention were no longer ‘appropriate for
protection by the indication of provisional measures’.189
The Court’s 1993 decision would suggest that the question of judicial review was
immaterial. Yet in 1998, the Court dismissed the respondents’ preliminary objec-
tions to the Court’s jurisdiction and the admissibility of Libya’s claim.190 Of
particular interest was the Court’s treatment of the respondents’ objection that
Libya’s claim was inadmissible because Resolutions 731 (1992), 748 (1992), and
833 (1993)191 superseded Libya’s rights under the Montreal Convention, and thus
the dispute was in fact now governed by these decisions of the Council.192 The
Court dismissed this objection, concluding that the resolutions in question were
adopted after the filing of the Application, and that as such, it was not deprived of
jurisdiction under the rule that, if the Court has jurisdiction at the date of the
Application, subsequent resolutions cannot affect this.193 It therefore arguably
reserved the matter of the validity of the Council’s actions to the merits phase;194
however, that phase was never reached due to Libya’s decision in 2003 to comply
with the Council’s resolutions and its subsequent withdrawal of the case from the
Court’s General List.
Arguably, the Court’s dismissal of this preliminary objection could be inter-
preted as an indirect challenge to the supremacy of the Council when acting under
Chapter VII. In fact, allusions to the Court’s ‘challenge’ were identified in some
separate and dissenting opinions, which were in substance far more deferential to
the supremacy of the Security Council acting under Chapter VII. Erstwhile Presi-
dent, then-Judge ad hoc195 Sir Robert Jennings argued the inadmissibility of
Libya’s application on precisely the basis that, when the Council exercised its
discretionary power under Article 39 of the Charter in respect of a perceived threat
to international peace and security, ‘it is not for the principal judicial organ of the
United Nations to question that decision, much less to substitute a decision of its
own’.196 President Schwebel suggested that ‘[t]he Court . . . is particularly without
186 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation
(adopted 23 September 1971, entered into force 26 January 1973), 974 UNTS 178.
187 SC Res 748 (31 March 1992).
188 SC Res 748 (n 187), operative clause 1.
189 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the
Aerial Incident at Lockerbie (Libya v UK ) (Provisional Measures) [1992] ICJ Rep 3, paras 39–40.
190 Lockerbie (Preliminary Objections) (n 34).
191 SC Res 833 (27 May 1993).
192 See, generally, C Gray, ‘The Lockerbie Case Continues’ (1998) 57 CLJ 433, 434.
193 Lockerbie (Preliminary Objections) (n 34) paras 44–5.
194 Schweigman (n 171) 270; S Chesterman, ‘An International Rule of Law?’ (2008) 56 AJCL 33123.
195 In these proceedings Judge Jennings was sitting ad hoc.
196 Lockerbie (Preliminary Objections) (n 34), Dissenting Opinion of Judge ad hoc Sir Robert
Jennings 110.
power to overrule or undercut decisions of the Security Council made by it in pursuance
of its authority under Articles 39, 41 and 42 of the Charter’.197 Schwebel thus
considered that in no way is the Court to interfere in the Council’s ‘primary responsi-
bility for the maintenance of peace’.198 Judge Herczegh considered that Libya’s claim
was without object due to the passing of Security Council Resolutions 748 and 883,199
which he argued were relevant circumstances after the time of filing.200
The curious context of the Lockerbie cases suggests a multi-faceted approach. José
Álvarez has argued that at both phases, the ICJ judges were engaged in ‘expressive
review’:201 a highly deferential majority judgment tempered by statements of
individual judges asserting limits to the Council’s authority.202 He has argued
that individual judges were issuing a series of ‘cues’ to a ‘coordinate constitutional
actor’, in the hope that the Security Council, in its future decision-making, would
be more conscious of potential limits to its powers.203 Álvarez’s model suggests a
form of intentional collective ambiguity on the part of the Court, recognizing the
limits on the judicial power in participating in certain categories of disputes in the
majority,204 whilst also intimating to the Council that its powers are not limit-
less.205 It is true that dissenting opinions can have a bearing on the interpretation of
the majority’s findings, and certainly form part of the judgment as a whole,206 but
it is perhaps overstating matters to suggest that the Court consciously coordinates
the individual opinions of its judges so as to maximize dialogue with other organs of
the United Nations. At best, the Court might be able to call upon the Council to
self-censor,207 in an exercise of ‘normative restraint’208 over its own activities, to
avoid a situation of potential conflict such as arose in Lockerbie.209
197 Lockerbie (Preliminary Objections), Dissenting Opinion of Judge Schwebel (n 34) 73.
200 Lockerbie (Preliminary Objections), Dissenting Opinion of Judge Schwebel (n 34) 52. The
Court’s strict reliance on the situation at the date of filing is inconsistent with its opposite finding in
Border and Transborder Armed Actions (Nicaragua v Honduras) [1988] ICJ Rep 95, para 66.
201 Álvarez (n 169) 28.
202 Álvarez (n 169) 30: for instance, Álvarez cites Judge Weeramantry’s Dissenting Opinion in
Lockerbie (Provisional Measures), which had argued that the Council was bound by Art 24 to respect
the principles and purposes of the UN Charter.
203 Álvarez (n 169) 30.
204 Álvarez (n 169) 30.
205 Although Judges Jennings (at 110) and Schwebel (at 76) conceded that the Council is subject to
certain limitations, one cannot presume that, merely because the Court was willing to proceed to the
merits on the possibility of reviewing Resolutions 746 and 883 (para 42 of the Judgment), it would be
prepared to review their legality.
206 One of the present authors has suggested that the collective drafting process of the Court is
designed primarily to project the authority of the Court as a body corporate, but that the function of
dissenting opinions does have a bearing on the normative impact of its judgments: see GI Hernández,
‘The Collective Drafting Process’ in The International Court of Justice and the Judicial Function
(Oxford: OUP, forthcoming) ch IV.
207 As Schwebel suggests in his Dissenting Opinion in Lockerbie (Preliminary Objections) (n 34)
76: ‘in many legal systems, national and international, the subjection of the acts of an organ to law by
no means entails subjection of the legality of its actions to judicial review. In many cases, the system
relies not upon judicial review but on self-censorship by the organ concerned . . . ’
208 Álvarez (n 169) 30.
209 AF Perez, ‘The Passive Virtues and the World Court: Pro-Dialogic Abstention by the
International Court of Justice’ (1997) 18 Michigan JIL 399 terms the Court’s practice in Lockerbie
4.3.2 The chiaroscuro of judicial review: Certain Expenses,

Namibia, and Kosovo
Whatever the Court’s language in contentious cases, in several Advisory Opinions—
notably Certain Expenses, Namibia, and Kosovo—the Court engaged directly with the
interpretation of Security Council resolutions so as to elucidate their legal effects;
although it did not declare any resolutions to be unlawful, this practice constitutes an
indirect form of review of Security Council resolutions, allowing us to draw some
generalizations about the relationship between the principal organs.
As we have seen, in Certain Expenses, the General Assembly had to consider
whether certain expenses incurred in the pursuit of UN operations in the Congo
and Middle East, authorized by the Assembly as ‘expenses of the Organization’, did
in fact qualify as such under Article 17(2) of the Charter.210 Any expenditure
incurred for a purpose other than those found in Article 1 of the Charter could not
be considered an expense of the Organization.211 From the outset the Court
refused to read the possibility of judicial review into the Charter:
In the legal systems of States, there is often some procedure for determining the validity of
even a legislative or governmental act, but no analogous procedure is to be found in the
structure of the United Nations. Proposals made during the drafting of the Charter to place
the ultimate authority to interpret the Charter in the International Court of Justice were not
accepted . . . As anticipated in 1945, therefore, each organ must, in the first place at least,
determine its own jurisdiction.212
Instead, the emphasis was on each organ’s power to ‘determine its own jurisdic-
tion’.213 It is clear that, in expressly rejecting the existence of any judicial review
function (and, by analogy, any domestic law analogy of division of executive,
legislative, and judicial competences in the international legal order), the Court
suggested that whatever limits to the discretionary powers of the other principal
organs may be, it was not to the Court that they would be accountable.
Similarly, in Namibia the Court, mandated by the Security Council, was asked a
question that required it to provide an interpretation of Security Council Reso-
lution 276. Although it stated vehemently that it did not possess powers of judicial
review,214 ultimately it proceeded to conclude that Resolution 276 was ‘adopted in
‘pro-dialogic abstention’, a technique designed to foster intra-institutional dialogue between the

major Nations organs.
210 GA Res 1731 (XVI) (20 December 1961). Art 17, para 2 of the Charter concerns the General
Assembly’s overall responsibility for the Organization’s budget.

212 Certain Expenses (n 8) 168. In some respects even declining to claim a role as the ultimate
interpreter of the Charter: ‘Proposals made during the drafting of the Charter to place the ultimate
authority to interpret the Charter in the International Court of Justice were not accepted.’ Robert
Y Jennings, ‘International Court of Justice: Advisory Opinion of July 20, 1962’ (1962) 11 ICLQ 1169,
1177, who notes that the Court left a pointed silence as to where final interpretative authority lay.
213 Certain Expenses (n 8) 168. On the ‘power to determine its jurisdiction’ of each organ, see KR
Simmonds, ‘The UN Assessments Advisory Opinion’ (1964) 13 ICLQ 854, 874.

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

216 J Dugard, ‘Namibia (South West Africa): The Court’s Opinion, South Africa’s Response, and
Prospects for the Future’ (1972) 11 Columbia J Transnatl L 14, 32. See also the Dissenting Opinion of
Judge Gros in Namibia (n 14) para 18, where he complained that ‘[i]t used not to be the Court’s habit
to take for granted the premises of a legal situation the consequences of which it has been asked to
state’.
217 SC Res 269 (12 August 1969): the Council had referred to ‘its responsibility to take necessary
action to secure strict compliance with the obligations entered into by States Members of the United
Nations under the provisions of Article 25 of the Charter’.
218 SC Res 276 (30 January 1970).
219 AW Rovine, ‘The World Court Opinion on Namibia’ (1972) 11 Columbia J Transnatl L 203,
230.
220 Dugard (n 216) 30; Oliver J Lissitzyn, ‘International Law and the Advisory Opinion on
Namibia’ (1972) 11 Columbia J Transnatl L 50, 65.

221 See generally I Petculescu, ‘The Review of the United Nations Security Council Decisions by
the International Court of Justice’ (2005) 52 NILR 167, 182.

222 As had been demonstrated in the Admission of a State (n 25) and Certain Expenses (n 8) Opinions
particularly: see 3.1.

223 ‘Kosovo Declaration of Independence’ Pristina (17 February 2008): reproduced in Kosovo
(n 14) paras 74–5.

224 GA Res 63/3 (8 October 2008).
answer the request,225 the Court concluded that the declaration did not violate the
applicable law,226 namely general international law, Security Council Resolution
1244227 (1999), and the Constitutional Framework of 2001.228
The majority drew two important conclusions on compliance with Resolution
1244. First, it concluded that the declaration of independence did not violate
Resolution 1244 because that resolution did not determine, or preclude the
settlement of, the final status of Kosovo,229 whereas the declaration did; as such,
‘the two instruments operate[d] on a different level’ and there was no conflict.230
Secondly, it held that the addressees of 1244 did not include the authors of the
declaration, and thus 1244 did not ‘bar . . . [them] . . . from issuing a declaration of
independence from the Republic of Serbia’.231 The Court, rejecting calls to decline
to answer on the basis that it would be inappropriate to determine the legal effects
of a Security Council resolution through a request from the General Assembly,232
concluded that the declaration did not violate Resolution 1244.
The Court’s approach was cautious: it concluded merely that the language of
Resolution 1244 was ‘at best ambiguous’ vis-à-vis the Federal Republic of
Yugoslavia’s territory, and found that 1244 did not preclude a final settlement
to the situation in Kosovo.233 Unlike in Namibia, where the Court used a
contextual mode of interpretation to arrive at an interpretation of Resolution
276 that was consistent with the Council’s will,234 in Kosovo the Court inter-
preted the will of the Council restrictively, to the point where, in effect, it
excluded the application of Resolution 1244 to the relevant facts.235 This was
achieved in part through the Court’s reformulation of the Assembly’s request to
leave open the question of the authors of the declaration of independence of
Kosovo.236 This reformulation arguably transformed the outcome,237 or at the
225 Kosovo (n 14) paras 28, 48. 226 Kosovo (n 14) para 122.
227 SC Res 1244 (10 June 1999), which confirmed the ceasefire in Kosovo and promulgated a UN-
supervised interim territorial administration over Kosovo that continues to the present day.
228 ‘Regulation on a Constitutional Framework for Provisional Self-Government in Kosovo’,
UNMIK Regulation 2001/9 (15 May 2001), UN Doc UNMIK/REG/2001/9.

229 Kosovo (n 14) para 114.
231 Kosovo (n 14) paras 115–19.
232 A point highlighted by Vice-President Tomka (para 7), Judge Bennouna (para 13), and Judge
Skotnikov (para 9) in their Dissenting Opinions in Kosovo (n 14).

234 See the Court’s method of interpreting Security Council resolutions, 3.3.
235 MG Kohen and K Del Mar, ‘The Kosovo Advisory Opinion and UNSCR 1244 (1999):
A Declaration of “Independence from International Law”?’ (2011) 24 Leiden JIL 109, 123. At 109,
they criticize the Opinion strongly: in deciding that Resolution 1244 neither prohibited the solution of
Kosovo’s final status, nor bound the authors of the declaration, the Court ‘failed to uphold [its] legally
binding provisions’.
236 Kosovo (n 14) paras 52–3.
237 A Mills, ‘The Kosovo advisory opinion: if you don’t have anything constructive to say . . . ’ (2011)
70 CLJ 1, 2; J Vidmar, ‘The Kosovo Advisory Opinion Scrutinized’ (2011) 24 Leiden JIL 355, 378.
very least made it less controversial.238 Arguably, through its denial of the full
legal effects of Resolution 1244,239 the ICJ exercised a power akin to judicial
review (or at least having similar effects), transforming the resolution through
the interpretative exercise into an instrument of a wholly different scope.
Through the Court’s finding that the addressees of Resolution 1244 were
limited in nature, which led to its arriving at its conclusions on Kosovo’s final
status, the formal validity of 1244 was preserved whilst its substantive content
was hollowed out.
It is that reformulation that represents a departure for the Court from its
approach in Namibia in respect of Security Council resolutions,240 as regards
taking into account relevant sources and means of interpretation beyond the text.
Although its language in paragraphs 94 and 95241 seemed to confirm its earlier
approach in Namibia, the Court’s formalism rendered irrelevant the guarantees of
territorial integrity for the FRY contained in the text of the preamble to Resolution
1244.242 Moreover, the Court’s stated attempt to discern the ‘object and purpose’
of Resolution 1244243 would presumably have required it to consider ‘statements
by representatives of members of the Security Council made at the time of their
adoption’,244 as well as the subsequent practice of states and the United Nations.245
Recourse to such means of interpretation was in some respects excluded.246
Moreover, in a letter addressed by the President of the Security Council to the
Secretary-General (called the ‘Guiding Principles’), it was suggested that a unilateral
solution to the political crisis in Kosovo was not permitted.247 Yet such subsequent
practice was given summary treatment by the Court. In the final analysis, even if
the Court did not invalidate Resolution 1244, in this particular case the Court may
have stepped beyond its judicial function by denying any legal effect to that
resolution, thus resolving a situation that had been left open by the Council.
Indeed, this Opinion may, in the long run, come to represent the beginnings of
a break with the Court’s heretofore deferential posture towards the principal
organs.
238 D Jacobs, ‘International Court of Justice, Accordance with International Law of the Unilateral
Declaration of Independence in Respect of Kosovo, advisory opinion of 22 July 2010’ (2011) 60 ICLQ
799, 810.
239 Kohen and Del Mar (n 235) 109.
240 Kohen and Del Mar (n 235) 124; R Falk, ‘The Kosovo Advisory Opinion: Conflict Resolution
and Precedent’ (2011) 105 AJIL 50.

241 Reproduced above in 3.3.
242 Kohen and Del Mar (n 235) 123.
243 Kosovo (n 14) paras 96, 100, 118.
246 Kohen and Del Mar (n 235) 123. It should be noted that Professor Kohen acted as counsel for
Serbia in that case, which perhaps makes his hostility to the Opinion understandable. Judge Skotnikov,
para 13 of the Opinion, made express reference to the statements of certain Council members at the
time of adoption of Resolution 1244, suggesting that the resolution would apply to all Kosovo
Albanians in that territory (thus surely binding the authors of the declaration).
247 As annexed to the letter dated 10 November 2005 from the President of the Security Council
addressed to the Secretary-General, UN Doc S/2005/709.

5. Conclusion
The Court’s contribution to understanding the institutional structures of the

United Nations is in keeping with its role as the principal judicial organ of
the Organization. It has helped to illuminate and clarify the interstices left in the
Charter, especially with respect to the personality of the Organization, the compe-
tences left to its principal organs, and of course, the Charter itself. In its advisory
capacity, it seems fair to conclude that it has indeed discharged the role of trusted
advisor. Despite the fact that the Court’s opinions are not binding, they are by and
large respected, both by the requesting organs and other United Nations organs, as
well as generally by states. It is true that the rate of advisory opinions is declining
and that the contribution of the Court to the institutional law of the United
Nations is in part retrospective. But perhaps as a result of this, the Court and the
Organization have acquired further authority; one could even argue that the busier
docket of the Court as regards contentious cases is in part due to the authority it has
gained through the giving of advisory opinions. In any event, the relative maturity
of the Organization has allowed for certain questions to be settled through practice
and the passage of time.
Some serious questions remain open: the Court continues to claim that it has no
power to review resolutions of the Security Council, even as it actively engages in
their interpretation. Organs of course remain free to disregard the opinions of the
Court, thus undermining its authority. Despite the lack of centralized interpretative
authority, however, the Court’s contribution to clarifying the institutional law of
the Organization has been one of modest persuasion, through clarifying ambigu-
ities in the Charter and systematizing the practice of organs and member states. In
the final analysis, the Court’s approach, in particular through the medium of the
advisory opinion, has been one of continuous incrementalism, engaging in a
meaningful dialogue with other principal organs and accommodating conflicting
perspectives.
PART VI
ARMED CONFLICT
11
and the Use of Force
Christine Gray
1. Introduction
The International Court of Justice (ICJ, or ‘the Court’) has played a central role in
the development of the law on the use of force. It is now beyond question that the
Court may decide cases on the politically sensitive issue of armed conflict—even of
an ongoing armed conflict. Cases about the use of force, which before the UN era
might have been regarded as affecting the vital interests of states and so as unsuit-
able for adjudication, are now undoubtedly admissible before the Court. Moreover,
the Security Council’s primary role in the maintenance of international peace and
security,1 and its special functions with regard to self-defence,2 do not exclude ICJ
jurisdiction over cases with which the Security Council is concerned. The Court
has given judgment on the merits in just four cases—Corfu Channel,3 Nicaragua,4
Oil Platforms,5 and DRC v Uganda6—but many more cases arising out of the use of
force, or indirectly involving the use of force, have been taken to the Court.7 It has
1 Art 24 UN Charter. 2 Art 51 UN Charter.

ICJ Rep 14.

5 Oil Platforms (Iran v USA) [2003] ICJ Rep 161.
6 Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168.
7 In other contentious cases directly concerning the use of force, the Court did not reach a decision
on the merits as regards the use of force. It had no jurisdiction in the Aerial Incident cases of the 1950s,
the Legality of Use of Force cases involving Yugoslavia against ten NATO States or the Aerial Incident of
10 August 1999 (Pakistan v India) (Jurisdiction) [2000] ICJ Rep 12; nor did it have jurisdiction in
Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda) (Jurisdiction
and Admissibility) [2006] ICJ Rep 6 or Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v Russia) (Preliminary Objections) Judgment of 1 April
2011 (<http://www.icj-cij.org/docket/files/140/16398.pdf> (accessed 17 May 2013)). Two other
cases, Aerial Incident of 3 July (Iran v USA) Order of 9 April 1998 and Border and Transborder
Armed Actions (Nicaragua v Honduras) (Order) [1992] ICJ Rep 222 were withdrawn. The Court
avoided a decision on responsibility for unlawful use of force arising out of a boundary dispute in Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea
Intervening) [2002] ICJ Rep 303. It faced a similar combination of issues in the recent boundary
case of Territorial and Maritime Dispute (Nicaragua v Colombia) Judgment of 19 November 2012
also decided on provisional measures in several of these cases. Two of the Court’s
advisory opinions have discussed the legality of the use of force: the Nuclear
Weapons Opinion8 and the Wall Opinion.9
However, the ICJ’s role in the development of the law has proved extremely
controversial. Overall it has taken a strict view of the prohibition of force. Its
judgments have been harshly attacked, not only by respondent states unhappy with
the result when they have been defeated in cases before the Court, but also by
commentators dissatisfied with what they see as the Court’s avoidance of difficult
issues or with its strict views on the use of force. The attacks on the Court by
respondent states are understandable, even if not justified. The USA, as defeated
respondent in Nicaragua and Oil Platforms, has expressed its fierce rejection of the
Court’s reasoning. It has also submitted statements arguing against the jurisdiction
or the propriety of the two advisory opinions concerning the use of force and, when
the Court nevertheless chose to give an opinion, it has criticized the Court’s view
of the law. Not surprisingly, compliance with the Court’s judgments and opinions
on the use of force has proved problematic.10 As for the commentators who attack a
particular judgment or opinion, they often echo the dissenting or separate opinions
of the judges of the nationality of the defeated state. Those who support the Court’s
decision in a particular case are less likely to write about that case, and the academic
literature may give the misleading impression that a decision is more controversial
than it actually is.
2. The Court’s first case on the use of force: Corfu Channel
The ICJ’s first case concerned the use of force. This was the Corfu Channel case in
which the UK brought an action against Albania for the damage done by mines to
British warships passing through an international strait—the Corfu Channel—in
Albanian waters. The Security Council recommended to the parties that they refer
(<http://www.icj-cij.org/docket/files/124/17164.pdf> (accessed 17 May 2013)) and the pending bound-

ary case of Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (<http://
www.icj-cij.org/docket/index.php?p1=3&p2=1&code=crn&case=150&k=ec> (accessed 17 May 2013)).
Certain other cases indirectly involving the use of force or arising out of the use of force were taken to the
Court, but the Court did not consider this particular aspect in its judgment on the merits in Fisheries
Jurisdiction (UK v Iceland) (Merits) [1974] ICJ Rep 3, United States Diplomatic and Consular Staff in
Tehran (USA v Iran) [1980] ICJ Rep 3, or Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43.
The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v
Serbia) is currently before the Court; Croatia’s application accused the Federal Republic of Yugoslavia of
aggression.
Opinion) [2004] ICJ Rep 136

10 A Llamazon, ‘Jurisdiction and Compliance in Recent Decisions of the International Court of
Justice’ (2007) 18 EJIL 815; C Schulte, Compliance with the Decisions of the International Court of
Justice (Oxford: OUP, 2004).
The Use of Force 239
the dispute to the Court, and ‘undoubtedly intended that the whole dispute should
be decided by the Court’.11 On the merits, the Court pronounced first on Albania’s
responsibility. It held that Albania was responsible for the damage caused by the
mines to the British warships on the basis of the ‘general and well-recognized
principle’ of ‘every State’s obligation not to allow knowingly its territory to be used
for acts contrary to the rights of other States’.12 This principle has since been
invoked in many different contexts. With regard to the use of force, it has been
relied on to argue that the principle of non-intervention includes a ‘duty of
vigilance’ not to acquiesce in, or to tolerate, subversive activities directed towards
the violent overthrow of the regime of another state.13 It has also been used in a
more far-reaching argument by those who seek to widen the right of self-defence to
allow the use of force against non-state actors operating from the territory of
another state.14
Albania counterclaimed that the UK had violated its sovereignty in Oper-
ation Retail (1946) when it sent minesweepers to the Corfu Channel to secure
evidence as to who had laid the mines which had harmed the British ships.
With regard to the counterclaim, the Court implicitly upheld the prohibition of
the use of force under the new UN Charter, and famously rejected a ‘policy
of force’. It was not justified for the UK to invoke a new and special application
of the theory of intervention, by means of which the state intervening could
secure possession of evidence in the territory of another state in order to submit
it to an international tribunal and thus facilitate its task. The alleged right of
intervention was a manifestation of a policy of force which had given rise to
serious abuses in the past and which would be reserved for the most powerful
states. Nor did the Court accept that Operation Retail could be justified on
the basis of the doctrines of self-protection or self-help: ‘between independent
States, respect for territorial sovereignty is an essential foundation of inter-
national relations.’15
The Court clearly adopted a strict approach to the law on the use of force in this
case. The onus was on the UK to justify its use of force. The Court rejected the
UK’s claims to be acting on behalf of the international community in its forcible
intervention; it also rejected the UK’s argument for a narrow interpretation of the
prohibition of the use of force (codified in Article 2(4) of the UN Charter) to allow
the use of force which did not aim to overthrow a government or seize a state’s
territory.16 Commentators such as Greenwood have concluded that the Court was
rejecting a restrictive interpretation of Article 2(4).17 The Court has continued to
take this approach in later cases.
11 Corfu Channel (n 3) 26. 12 Corfu Channel (n 3) 22–3.

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

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

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

The most striking case showing the caution of the Court with regard to its choice
of language on the illegality of a use of force is DRC v Uganda. This case arose out
of the involvement of Uganda in a complex conflict in the DRC (1998–2003).
Uganda did not contest the Court’s jurisdiction under Article 36(2) of the Statute.
The DRC had expressly requested the Court to find Uganda guilty of an act of
aggression within the meaning of the Definition of Aggression22 and of the jurispru-
dence of the ICJ, contrary to Article 2(4) of the UN Charter.23 Uganda itself had
not argued in its Pleadings that such a determination was outside the powers of the
Court. Nevertheless, in its dispositif the Court did not find Uganda guilty of
aggression; nor did it even make express reference to Article 2(4) of the Charter.
Although the Court made an extremely strong finding in the reasoning of its
Judgment that ‘the unlawful military intervention by Uganda was of such a
magnitude and duration that the Court considers it to be a grave violation of
the prohibition on the use of force expressed in Article 2, paragraph 4, of the
Charter’,24 in the actual dispositif the Court said only that ‘Uganda violated the
principle of non-use of force in international relations and the principle of non-
intervention’.25 Judge Simma in his Separate Opinion referred to this failure to
refer to aggression or to Article 2(4) in the dispositif as a ‘deliberate omission’.26 He
and Judge Elaraby both regretted the Court’s cautious choice of language in such a
serious case.27 It may be that the Court made this choice of language in order to
avoid controversy about its power to determine the existence of an act of aggression
and/or about the possible consequences of such a determination.28
4. The Nicaragua case
Although a large number of cases directly or indirectly involving the use of force
have been brought to the Court, few of these have led to a judgment on the merits
with regard to international law on the use of force. After the Corfu Channel case
no cases on the use of force were decided on their merits until the Nicaragua case in
1986, decided at the height of the Cold War.29 In this case Nicaragua claimed
that the USA had used force against the left-wing government in Nicaragua by its
own military actions and by its support for the armed opposition (the contras).
These actions violated the prohibition on the use of force and the principle of
22 GA Res 3314/XXIX (14 December 1974). 23 DRC v Uganda (n 6) para 23.

24 DRC v Uganda (n 6) para 165. 25 DRC v Uganda (n 6) para 345.
26 Separate Opinion of Judge Simma, DRC v Uganda (n 6) para 2.
27 Judge Simma said: ‘If ever there was a military activity before the Court that deserves to be
qualified as an act of aggression, it is the Ugandan invasion of the DRC. Compared to its scale and
impact, the military adventures the Court had to deal with in earlier cases . . . border on the insignifi-
cant.’ DRC v Uganda (n 6) para 2.
28 In Nicaragua (Jurisdiction and Admissibility) the Court seemed to accept the possibility that
such a determination was a matter for the Security Council under Chapter VII of the UN Charter;
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Jurisdiction and
Admissibility) [1984] ICJ Rep 392, paras 89, 90, 94.
29 Although several other cases were brought to the Court: see n 7 above; Greenwood (n 17).
non-intervention. The USA challenged the admissibility of these claims on the
ground that the subject matter was not suitable for the Court. But the Court
rejected this,30 and these arguments were not raised again in the same form in later
cases. The USA refused to play any further part in the Court’s proceedings after it
lost at the jurisdictional stage.31 The USA’s strong resistance to the Court’s
jurisdiction in this case (and later cases) may be an indication that it was less
than confident in the strength of its case.
The Nicaragua case is the most important decision by the Court on the
substantive law on the use of force, especially on the right of self-defence and
the law on intervention. It was heavily relied on in the two later cases on the use of
force which reached decisions on the merits, Oil Platforms and DRC v Uganda. The
Nicaragua case also raised certain important general issues about the Court’s role in
cases concerning the use of force: first, its relation to the UN Security Council with
regard to the maintenance of international peace and security; and second, its
methodology in establishing the law on the use of force.
4.1 The relation of the Court and the Security Council

Cases concerning the use of force may raise questions about the Court’s relation
with the UN Security Council; these can arise both at the Preliminary Objections
stage and at the Merits stage. The Court may first have to consider whether it is
proper to decide a particular case concerning the use of force. During a case it may
have to decide how far it may pronounce on questions of self-defence or aggression
on which the Charter has given a special role to the Security Council. In Corfu
Channel it was the Security Council itself which urged the parties to take the case to
the Court, a clear indication that it saw the case as suitable for judicial resolution.
But in later cases the relationship has provoked further questions. In Nicaragua the
question came up as one of admissibility; the USA argued that the case was not
suitable for the Court because Nicaragua’s claims concerned the unlawful use of
force, breach of the peace and acts of aggression; it also had an impact on the right
of self-defence. These were matters for the Security Council.32 The Court rejected
these US arguments: the fact that a matter was before the Security Council did not
prevent the Court from dealing with it. Nor did the fact that a case concerned
ongoing armed conflict mean that the Security Council had exclusive responsibility
for it or make it unsuitable for judicial decision.33
But Nicaragua left many other questions open. How far should the Court
defer to Security Council determinations on questions of fact or classification of a
conflict? Does the Court have a power to hold a Security Council resolution under
30 Nicaragua (Jurisdiction and Admissibility) (n 28) paras 89–101; Nicaragua (Merits) (n 4) paras
32–5.
31 Nicaragua (Merits) (n 4) paras 24–31; MN Leich, ‘Contemporary Practice of the United States
Relating to International Law’ (1986) 80 AJIL 153, 163–5. As justification for its use of force, the USA
had claimed collective self-defence; it set out its position in its Countermemorial at the Jurisdiction and
Admissibility stage.
32 Nicaragua (Jurisdiction and Admissibility) (n 28) para 89.
33 Nicaragua (Jurisdiction and Admissibility) (n 28) paras 93–101.
Chapter VII ultra vires? Is the Court able to hold that there has been an act of
aggression in the absence of a Security Council determination? The Court has not
decided these questions.34 They could have been discussed in DRC v Uganda
because the Security Council had affirmed the DRC’s right of self-defence in
Resolution 1234 (1999) and condemned the fighting between Uganda and
Rwanda on the territory of the DRC in Resolution 1304 (2000), but the Court
avoided venturing into these issues.
4.2 Methodology
How does the Court establish what the law on the use of force is? What does the
Court say about the identification and evolution of international law? The Court’s
methodology necessarily affects its conclusions on the content of the law in this
area, but it has given little express consideration to this question. In Nicaragua this
question of how to identify the law received far more extensive consideration than
in Oil Platforms and DRC.35 The Oil Platforms Judgment contains virtually nothing
on the method by which the Court determined the law on the use of force. It made
passing reference to Nicaragua and to customary international law on the meaning
of ‘armed attack’;36 it simply referred to Nicaragua on the requirement that an
armed attack reach a certain level of gravity;37 and it also invoked Nicaragua and
Nuclear Weapons on the requirements of necessity and proportionality of the use of
force in self-defence.38 Again in DRC, apart from its references to its own decisions
and to General Assembly resolutions, the Court did not otherwise explain how it
arrived at its conclusions. Even in its advisory opinions there is little consideration
of this question. Thus in Nuclear Weapons the Court discussed the legality of
the use or threat of nuclear weapons under the provisions of the UN Charter on the
use of force in fourteen paragraphs.39 These simply set out the applicable provi-
sions, Articles 2(4), 51 and 42. In asserting that self-defence must be necessary
and proportionate the Court referred to Nicaragua. The Court treated the law as
clear; its focus was on the application of the rules to nuclear weapons.
In Nicaragua the Court was driven to consider this issue at greater length partly
because of the US multilateral treaty reservation which meant that the Court had to
make its decision on the basis of customary international law.40 Accordingly it
devoted a separate section of its Judgment to this issue. Much of its reasoning on
34 See C Gray, ‘The Use and Abuse of the ICJ’ (2003) 14 EJIL 867, 897.
35 The Court noted that there was a considerable degree of agreement between the parties on the
content of customary international law relating to non-use of force and non-intervention (Nicaragua
(Merits) (n 4) para 184). It held that it nevertheless had to establish that their views reflected general
international law, and to satisfy itself that the existence of the rule in the opinio juris of states was
confirmed by practice.
36 Oil Platforms (n 5) para 51.
39 Nuclear Weapons (n 8) paras 137–51.
40 Nicaragua (Jurisdiction and Admissibility) (n 28) para 73; Nicaragua (Merits) (n 4) paras 42–56.
See M Mendelson, ‘The International Court of Justice and the Sources of International Law’ in Lowe
and Fitzmaurice (n 17) 63.
the identification of customary international law is uncontroversial and is set out in
outline only, but there are also certain important statements on method within the
Judgment which have divided commentators and which have important implica-
tions for contemporary debates on the use of force. These pronouncements by the
Court in Nicaragua may be as significant as its findings on the substance of the law;
they have certainly attracted considerable attention. Critical commentators have
implicitly or explicitly rejected the Court’s approach in their attempts to argue that
international law allows a wider use of force than that accepted by the Court, or that
international law has altered since the decision in Nicaragua.41
The Court started its consideration of the applicable law in Nicaragua by
adopting the traditional model that state practice and opinio juris were the constitu-
ent elements of customary international law.42 It identified opinio juris by reference
to General Assembly resolutions—specifically the Declaration on Friendly Rela-
tions43 and the Definition of Aggression. This was somewhat controversial at the
time, but is much less so today. These resolutions played a crucial role in Nicaragua
with regard to the prohibition of the use of force and of intervention and to the
scope of the right of self-defence. The Court’s conclusions on the substance of the
law were to a large extent based on its interpretation of these resolutions. They
continued to play a crucial role in DRC v Uganda, which involved very similar
questions to those before the Court in Nicaragua. In its examination of opinio juris
the Court in Nicaragua also took into account the statements of states. Thus, on the
principle of non-intervention the Court relied on the principle of sovereign
equality, the Corfu Channel case, the Declaration on Friendly Relations, declarations
by states, and inter-American relations to establish opinio juris.44
With regard to state practice on the prohibition of the use of force, the Court
said that absolutely rigorous conformity with the rule was not necessary. It was
sufficient that the practice of states should in general be consistent with such rules,
and that instances of state conduct inconsistent with a given rule should generally
have been treated as breaches of that rule, not as indications of the recognition of a
new rule. ‘If a State acts in a way prima facie incompatible with a given rule, but
defends its conduct by appealing to exceptions or justifications contained within
the rule itself, then whether or not the State’s conduct is in fact justifiable on that
basis, the significance of that attitude is to confirm rather than to weaken the
rule.’45
For many commentators all this is uncontroversial, but the Court’s approach is
unacceptable to those who argue that the actual use of force by certain states is more
important than the statements they make in justification of their use of force. There
41 See discussion by O Corten, The Law against War (Oxford: Hart Publishing, 2010) 4; T Ruys,
‘Armed Attack’ and Article 51 of the UN Charter (Cambridge: CUP, 2010) ch 1.

42 Nicaragua (Merits) (n 4) para 183.
43 Declaration of Principles of International Law Concerning Friendly Relations and Co-operation
Among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV) (24 October
1970).
44 Nicaragua (Merits) (n 4) paras 202, 204. 45 Nicaragua (Merits) (n 4) para 186.
are fundamental divisions between commentators on this issue.46 The Court’s

approach makes it more difficult to argue that new rights to use force have emerged
in customary international law. This can be seen clearly in Nicaragua where the
Court considered whether the USA could claim a new right of forcible intervention
to help armed opposition forces.47 It asked whether there were ‘indications of a
practice illustrative of belief in a kind of general right for states to intervene . . . in
support of an internal opposition in another state whose cause appeared particularly
worthy by reason of the political and moral values with which it was identified’.48
The Court said that for such a general right to come into existence would involve a
fundamental modification of the customary law of non-intervention. The signifi-
cance of cases of state conduct prima facie inconsistent with the principle of non-
intervention lay in the nature of the ground offered as justification. Reliance by a
state on a novel right or an unprecedented exception might, if shared in principle by
other states, tend towards a modification of customary international law. However,
the Court found that states had not in fact justified their conduct by reference to a
new right of intervention or a new exception to the principle of its prohibition.
The United States authorities have on some occasions clearly stated their grounds for
intervening in the affairs of a foreign state for reasons connected with, for example, the
domestic policies of that country, its ideology, the level of its armaments, or the direction of
its foreign policy. But these were statements of international policy, and not an assertion of
rules of existing international law. In particular . . . the USA had not claimed that its
intervention, which it justified in this way on the political level, was also justified on the
legal level, alleging the exercise of a new right of intervention.49
The USA had, on the legal plane, justified its intervention expressly and solely by
reference to the ‘classic’ rules involved, namely collective self-defence against an
armed attack. Nicaragua too had not argued that solidarity with the opposition in
El Salvador was a legal basis for an intervention.
The Court concluded that there was no new right of intervention. In support of
this conclusion, the Court said that the principle of non-intervention would
certainly lose its effectiveness if intervention were to be justified by a mere request
for assistance made by an opposition group in another state. It was difficult to see
what would remain of the principle of non-intervention in international law if
intervention which was already allowable at the request of the government were also
to be allowed at the request of the opposition. This would permit any state to
intervene at any moment in the internal affairs of another state.50
In short, the Court did accept that a change in the law might be possible. But it
was crucial that a state should expressly claim a new right. Mere inconsistent
behaviour would not help to form new customary international law; it would be
a breach of the existing law. This position is clearly of great significance for the
46 Corten (n 41) 4. 47 Nicaragua (Merits) (n 4) paras 206–8.

48 Nicaragua (Merits) (n 4) para 206. 49 Nicaragua (Merits) (n 4) paras 207–8.
debate on how far the terrorist attacks of 9/11 and their aftermath have brought
changes in the law of self-defence.51
Another source of controversy arising out of the Court’s identification of the
legal rules on the use of force is that some of the Court’s assertions on the content of
the law were made without detailed explanation. Thus, in Nicaragua the definition
of ‘armed attack’ to exclude the supply of arms was dealt with in a brief manner.
The Court simply referred to the ‘general agreement’ on the nature of acts that
constitute ‘armed attacks’.52 Also it dealt only briefly with the extra requirements
for collective self-defence: it relied on agreement between the parties on the
requirements of necessity and proportionality; it asserted that there was no rule
of customary international law permitting a third state to exercise the right of
collective self-defence on the basis of its own assessment of the situation;53 it
referred to regional treaties and customary international law to confirm that a
request by the victim state was necessary.54 Again, in DRC v Uganda when the
Court asserted that ‘Article 51 may justify a use of force only within the strict
confines there laid down’ it did so without discussion.55 In Oil Platforms the Court
treated as self-evident, first, the requirement that in the particular context intent
was needed to establish an Iranian missile or mine attack against US shipping,56
and, second, that consideration of the target aimed at by the victim state was
relevant to the question whether self-defence was necessary.57 Third, the Court
stated as obvious the distinction between US-owned and US-flagged ships,58 and
also between naval and merchant vessels.59 The USA was critical of the Court’s
position on these points.60 Does the brevity of these statements of the law
undermine their authority? It may be that the majority regarded all these findings
as obvious. In Nicaragua they were consistent with state practice. In Oil Platforms
and DRC v Uganda the Court had had the benefit of the parties’ arguments in their
extensive Pleadings. The onus was on the state accused of the unlawful use of force
to justify it, and the USA and Uganda failed to do so.
The main focus in the rest of this chapter will be on the Court’s positions on the
substantive law on the use of force in Nicaragua, Oil Platforms, and DRC v Uganda,
and in the Nuclear Weapons and Wall Opinions.
5. The prohibition of the use of force
5.1 Status of the prohibition

The Court has taken a clear line since the Corfu Channel case: the prohibition of the
use of force in Article 2(4) is customary international law;61 it is the cornerstone of
51 See 6.6. 52 Nicaragua (Merits) (n 4) para 195.

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

the Charter system;62 and the Court noted in Nicaragua that the parties had
referred to it as jus cogens.63 Article 2(4) provides: ‘All Members shall refrain in
their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.’ The Court construes this as a strict
prohibition. There is no sign in its jurisprudence of any support for the argument
put forward by some commentators that the prohibition of the use of force in
Article 2(4) should be construed to allow exceptions going beyond self-defence,
such as limited military operations which do not aim to overthrow the government
or to seize the territory of a foreign state and which further the purposes of the
UN. Thus, in the Corfu Channel case the Court clearly rejected the UK claim that a
state may unilaterally use force in what it claims is support for the Security Council
or for the work of the ICJ. Defects in the Charter scheme do not justify a state in
taking unilateral forcible action.64 In a famous passage, subsequently quoted in
Nicaragua, it said that ‘the alleged right of intervention is the manifestation of a
policy of force, such as has, in the past, given rise to most serious abuses and such as
cannot, whatever may be the present defects in international organization, find a
place in international law’.65 Forcible intervention of the type claimed by the UK in
Corfu Channel—to rescue evidence of mine-laying in the Corfu Channel in order
to assist the ICJ—was still less admissible, ‘for, from the nature of things, it would
be reserved for the most powerful states’.66 It is easy to see why the Court’s
approach has not proved attractive to those who claim special rights for powerful
states to use force ‘on behalf of the international community’ or to ‘further the
purposes of the UN’—as they did with regard to the interventions in Kosovo
(1999) and Iraq (2003).
State practice after the Corfu Channel case was generally consistent with the
Court’s approach, and claims by states that the prohibition on the use of force was
limited were rare.67 In Nicaragua the Court accordingly took the position that the
prohibition on the use of force was customary international law, and that
the prohibition was ‘not as such conditioned by provisions relating to collective
security, or to the facilities or armed contingents to be provided under Article 43 of
the Charter’.68 This can be construed as necessitating the rejection of the position
of those commentators who argued during the Cold War that Article 2(4) should
be construed to allow the use of force that furthers the purposes of the UN, because
the collective security system had broken down and the Security Council was
unable to act.69 The Court has consistently taken the position that Article 2(4) is
a strict prohibition of the use of force which does not allow far-reaching exceptions
that would undermine its impact; this is strengthened by its position on non-
intervention.
62 DRC v Congo (n 6) para 148. 63 Nicaragua (Merits) (n 4) para 190.

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

5.2 Non-use of force and non-intervention

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

72 Nicaragua (Merits) (n 4) paras 263–7.
73 Nicaragua (Merits) (n 4) paras 267–8. It avoided further consideration of this issue in Accordance
with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory
74 Nicaragua (Merits) (n 4) paras 201–9.
proved that the USA had itself intended to overthrow the Nicaraguan Government:
‘in international law, if one state, with a view to the coercion of another state,
supports and assists armed bands . . . whose purpose is to overthrow the government
of that state, that amounts to an intervention by the one state in the internal affairs of
the other.’75
Similarly in DRC v Uganda the Court held that Uganda was responsible for
unlawful intervention through its support for the opposition forces in the
DRC. This was so even if Uganda’s objectives were not to overthrow President
Kabila of the DRC. The training and military support that Uganda gave to the
opposition forces violated the international law principles set out in the Declaration
on Friendly Relations, which was declaratory of customary international law.76 In
contrast, the Court rejected Uganda’s first counterclaim. Uganda claimed that it
had been the victim of military operations by hostile armed groups in the DRC,
actively supported by the DRC, in violation of the general rule forbidding the use
of armed force in international relations and in violation of the principle of non-
intervention in the internal affairs of a state. However, the Court held that Uganda
had not shown that the DRC actively supported these armed groups operating
against it.77 These findings that forcible intervention can be unlawful even if there
is no intent to overthrow the government are clearly significant for the assessment
of the legality of regime change in Iraq (2003) and Libya (2011), given the
insistence, by some of the intervening states, that their action was not aimed at
toppling the existing regime.
In DRC v Uganda the Court also considered a wider principle of intervention,
the duty of vigilance. Its reasoning on this issue is significant and has proved
controversial. In its first counterclaim Uganda recalled the Court’s statement in
Corfu Channel on the obligation of states not knowingly to allow their territory to
be used for acts contrary to the rights of other states, and argued that two types of
duty of non-intervention flow from this principle. One prohibits active support for
opposition armed groups; the second imposes a duty of vigilance to ensure that
such activities are not tolerated on the state’s territory.78 With regard to the second,
the Court cited the Declaration on Friendly Relations, which states that ‘[e]very
State has the duty to refrain from acquiescing in organized activities within
its territory directed towards the commission of such acts’ (ie terrorist acts, acts
of internal strife) and that ‘no State shall tolerate subversive, terrorist or armed
activities directed towards the violent overthrow of the regime of another State’, as
declaratory of customary international law.79 It held that Uganda had failed to
prove its counterclaims on the duty of vigilance. At first, the DRC (Zaire as it
then was) was not capable of stopping the actions of the rebels; subsequently it
had in fact taken action, though this had been ineffective because of the difficulty
and remoteness of the terrain. The Court held that inability to act against the
rebels and ineffective action did not violate the duty of vigilance. There must be
75 Nicaragua (Merits) (n 4) para 241. 76 DRC v Congo (n 6) paras 155–65.

77 DRC v Congo (n 6) paras 297–300, 303, 304. 78 DRC v Congo (n 6) para 277.
79 DRC v Congo (n 6) para 300.
toleration or acquiescence. Mere absence of action or ineffective action by the
DRC Government did not amount to tolerating or acquiescing. Therefore the
DRC was not guilty of unlawful intervention for breach of its duty of vigilance.
This Judgment makes it difficult to argue that states which are unable to act
against terrorists or armed bands in their territory are themselves responsible for any
attacks carried out by those non-state actors on third states. Some recent commen-
tators have nevertheless claimed that since the terrorist attacks of 9/11 there has
emerged a right of self-defence against non-state actors operating from third states
which are unable to take action against them.80
5.3 Other aspects of Article 2(4)

The Court in Nicaragua also went into the more detailed question of what activities
amount to ‘use of force’ under the prohibition codified in Article 2(4).81 In this
context it distinguished between the most grave forms of force which constitute
armed attack and other less grave forms.82 This approach reflects the distinction in
the language of the UN Charter between the ‘use of force’ in Article 2(4) and
‘armed attack’ in Article 51, and was to prove central to the Court’s finding on self-
defence in Nicaragua. The Court held that the arming and training of armed
opposition forces could constitute a use of force, but the supply of funds could
not. Both types of support could amount to unlawful intervention.83
The Court has also considered the meaning of the ‘threat of force’ in Article 2(4)
in Nicaragua and Nuclear Weapons, but it offered little enlightenment on this
question.84 The concrete questions it considered were: could military manoeuvres
be a threat of force? Could the possession of nuclear weapons be a threat of force? In
Nicaragua the Court said only that it was not satisfied the military manoeuvres
constituted a breach of the prohibition of the use of force in the circumstances.85 In
the Nuclear Weapons Advisory Opinion the Court went into a little more detail. It
held that if the use of force envisaged was unlawful, a stated readiness to use it
would be a threat prohibited under Article 2(4). The notions of threat of force and
use of force in Article 2(4) stood together: if the use of force is unlawful the threat of
it is also unlawful.86 Some commentators have been critical of this approach,
arguing that the prohibition of threat of force in Article 2(4) is independent of
the prohibition of the use of force.87
80 See eg discussion by T Becker, Terrorism and the State (Oxford: Hart Publishing, 2006); Ruys
(n 41) 486; L Moir, Reappraising the Resort to Force (Oxford: Hart Publishing, 2010) 153. Christian
Tams argues that such a right is now emerging: ‘The Use of Force against Terrorists’ (2009) 20 EJIL 359.
84 N Stürchler, The Threat of Force in International Law (Cambridge: CUP, 2007); M Roscini,
‘Threats of Armed Force and Contemporary International Law’ (2007) 54 NILR 229.
87 Stürchler (n 84).
6. Self-defence
The most important—and the most controversial—part of the Court’s jurispru-

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

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

89 See 6.5.
In Nicaragua the question was whether Nicaragua had committed armed attacks
against El Salvador, Costa Rica, and Honduras that would justify the use of force by
the USA in collective self-defence. The USA did not succeed in showing that
Nicaragua was responsible for armed attacks against El Salvador, though there was
some evidence of its involvement in the supply of arms to groups opposing the
Government of El Salvador.90 The USA also showed some cross-border incursions
from Nicaragua into Honduras and Costa Rica.91 Three issues arose. First, could
attacks by irregular forces be regarded as armed attacks by a state, justifying the use
of force in self-defence against that state? The Court adopted the Definition of
Aggression Article 3(g) as applicable in this context. Attacks by irregular forces were
imputable to states when there was ‘“the sending by or on behalf of a State of armed
bands . . . which carry out acts of armed force against another states of such gravity
as to amount to” . . . an actual armed attack conducted by regular forces, “or its
substantial involvement therein”’.92 Today much controversy centres on this part
of the Judgment in the light of the terrorist attacks of 9/11. Some have argued that a
wider definition of armed attack should now be adopted.93 However, the Court in
DRC v Uganda (decided after 9/11) reaffirmed its commitment to this definition of
armed attack. On the question whether the acts of armed bands operating from the
DRC amounted to an armed attack against Uganda, the Court again referred to
Article 3(g) of the Definition of Aggression as establishing the appropriate test. On
this basis it concluded that the acts were not attributable to the DRC. It accordingly
found that the legal and factual circumstances for the exercise of a right of self-
defence by Uganda against the DRC were not present.94
Second, what types of actions could constitute an armed attack? In Nicaragua the
Court held that the supply of arms and other logistic support to opposition forces
did not amount to an armed attack, although it could constitute an unlawful
intervention, ‘that is a form of conduct which is certainly wrongful but of a lesser
gravity than an armed attack’.95 In its Pleadings in DRC v Uganda Uganda directly
challenged this view.96 It tried to persuade the Court that the wider views of Judges
Schwebel and Jennings in Nicaragua on the meaning of ‘armed attack’ were to be
preferred. Uganda argued that the provision of logistical support to armed bands
with knowledge of their objectives could constitute an armed attack (as opposed to
just unlawful intervention), but it did not offer any legal argument to support this
claim, and it was not accepted by the Court.
Third, is there a gravity requirement for armed attack? The Court’s Judgment in
Nicaragua contains the well-known statement that ‘it will be necessary to distinguish
the most grave forms of the use of force (those constituting an armed attack) from
other less grave forms’.97 The Court referred to this with regard to its finding that
the supply of arms did not amount to armed attack. The Court has subsequently
90 Nicaragua (Merits) (n 4) paras 130, 155–60. 91 Nicaragua (Merits) (n 4) paras 161–3.

92 Nicaragua (Merits) (n 4) para 195. 93 See 6.6. 94 DRC v Congo (n 6) para 146.
95 Nicaragua (Merits) (n 4) paras 195, 230, 247.
96 Uganda’s Countermemorial 350; Rejoinder 268–70. See Gray (n 67) 130–2.
adhered to the view that an armed attack giving the right of self-defence must attain a
certain level of gravity. Moreover, it has not limited the gravity requirement to attacks
by irregular forces. In Nicaragua it also drew a distinction between armed attacks and
mere frontier incidents with regard to the actions of regular forces.98 These state-
ments have attracted much criticism. Some critics have even asserted that this
approach would actually encourage the use of force.99
However, the Court has not been swayed by these criticisms and it repeated its
commitment to the gravity requirement in Oil Platforms where it held that in order
to justify its attacks on the Iranian oil platforms the USA had to show that the
attacks upon its vessels qualified as ‘armed attacks’ within Article 51 and as
understood in customary international law.100 It relied on Nicaragua in holding
that it was necessary to distinguish ‘the most grave forms’ of the use of force (those
constituting armed attack) from other less grave forms. Therefore, the missile attack
on the US-flagged tanker, the Sea Isle City, did not amount to an armed attack.
The USA had apparently tried to address the gravity issue by arguing that the
attack on the Sea Isle City should not be taken in isolation, but should be seen as
part of a series of other attacks. But the Court held that the USA had not shown
that the series of incidents (even taken cumulatively) amounted to an armed attack
which met the Nicaragua standard of a most grave form of the use of force.101
However, in its discussion of the US response to the mine attack on the US naval
vessel Samuel B Roberts the Court did not exclude the possibility that the mining of
a single military vessel might be sufficient to bring into play the inherent right of
self-defence.102 The US State Department Legal Advisor Taft criticized this dis-
tinction between armed attacks and less grave use of force, saying that it was only
appropriate with regard to irregular forces, and claiming that Nicaragua had not
applied the gravity requirement to regular forces.103 Therefore he said that the
distinction should not be applied to the actions of the Iranian armed forces. He did,
however, accept that a distinction should be drawn between frontier incidents and
armed attacks with regard to regular forces.
The USA thus seems to have relied on a form of the so-called accumulation of
events theory to try to address the gravity requirement in its pleadings in Oil
Platforms. This doctrine—that a series of minor attacks which did not individually
amount to an armed attack could cumulatively constitute an armed attack—had
apparently been raised in passing by the Court in Nicaragua.104 It does not seem to
have swayed the Court in Oil Platforms, and Judge Simma rejected the doctrine in
his Separate Opinion: he said that there is in international law no ‘qualitative jump’
from iterative activities remaining below the threshold of Article 51 to the type of
armed attack envisaged in the case.105 The accumulation of events theory was not
raised by the Court in DRC in its consideration of whether the series of cross-border

99 See Gray (n 67) 180. The Eritrea/Ethiopia Claims Commission also adhered to the gravity
requirement: (2006) 45 ILM 430.
100 Oil Platforms (n 5) paras 51, 64. 101 Oil Platforms (n 5) paras 50, 62–4.
102 Oil Platforms (n 5) para 72. 103 Taft (n 60).
104 Nicaragua (Merits) (n 4) para 231. 105 Oil Platforms (n 5) para 14.
attacks amounted to an armed attack by the DRC; nor was it addressed by the
Court in Cameroon v Nigeria.106
6.2 Necessity and proportionality

As the Court pointed out in Nicaragua, the UN Charter does not deal with all
aspects of self-defence. It does not define armed attack. Nor does it expressly require
that self-defence must be necessary and proportionate, but the ICJ has repeatedly
affirmed that these requirements are part of customary law; in state practice these
criteria play a crucial role. The parties in Nicaragua were in agreement on these
criteria.107 The Court has applied them in all its contentious cases on the use of
force. It has treated them as separate criteria, although it is not possible to keep
them totally distinct. Thus, in Nicaragua the US actions in mining Nicaraguan
ports and its attacks on the ports and oil installations were not necessary collective
self-defence of El Salvador because they were carried out several months after the
main offensive by El Salvador’s armed opposition forces against the Government
had been completely repulsed. It was possible to eliminate the main danger to the
El Salvadorian Government without undertaking activities in and against Nicar-
agua. Moreover, the US actions were not proportionate: the attacks on the ports
and oil installations were not proportionate to aid by Nicaragua (whatever its exact
scale) to the El Salvadorian armed opposition. And the US reaction had continued
long after the period in which any presumed armed attack by Nicaragua could be
contemplated.108
In Oil Platforms the Court began by stressing that the requirement of necessity
was strict and objective and left no room for any measure of discretion.109 It went
on to cite Nicaragua and Nuclear Weapons on the requirements of necessity and
proportionality in the law of self-defence.110 One aspect of these criteria was the
nature of the target. The Court had not expressly discussed this in Nicaragua, but
it was implicit in its finding that attacks on Nicaraguan ports and oil installations
were not necessary or proportionate. In Oil Platforms the Court treated the issue
of the nature of the targets as relevant to the necessity of the use of force. The
USA had claimed that the oil platforms were legitimate targets for an armed action
in self-defence in response to attacks on US ships because the platforms had been
used for the collection and communication of military intelligence. The Court
was not convinced by the US evidence as to this military activity, but it said that,
even accepting those US contentions, it was unable to hold that the attacks could
be justified as self-defence. It was not convinced that the attacks on the platforms
were necessary to respond to the attacks on the Sea Isle City and the USS Samuel
B Roberts. In this context the Court noted that there was no evidence that the
USA had complained to Iran about the military activities on the platforms,
106 Land and Maritime Boundary (n 7). 107 Nicaragua (Merits) (n 4) para 194.
108 Nicaragua (Merits) (n 4) para 237. 109 Oil Platforms (n 5) para 73.
110 Oil Platforms (n 5) paras 74–6.
although it had complained about mine-laying and attacks on neutral shipping.

The USA criticized this part of the Court’s Judgment as without basis in
international law and unduly restrictive,111 but the Court was not laying down
a new test; it was simply considering whether the US attacks on the oil platforms
were necessary. On proportionality, the Court distinguished between the two
episodes. The October 1987 operation in response to the attack on the Sea Isle
City might have been proportionate if it had been necessary. However, the April
1988 actions in response to the attacks on the Samuel B Roberts were part of a
more extensive operation involving the destruction of two Iranian frigates and a
number of other vessels and aircraft. This was not proportionate to the mining of
a single US warship which was severely damaged but not sunk and without loss
of life.
In both Nicaragua and Oil Platforms the Court considered necessity and propor-
tionality after it had already established that there had not been an armed attack
which justified the use of force in self-defence. That is, it was not strictly necessary
for the Court to consider these criteria of the legality of self-defence; they were
additional grounds of wrongfulness.112 Similarly in DRC v Uganda the Court had
rejected Uganda’s claim to be acting in self-defence as there was no armed attack by
the DRC. It said that there was no need for it to inquire into necessity and
proportionality, but it nevertheless observed that the taking of airports and towns
many hundreds of kilometres from Uganda’s border did not seem proportionate to
the series of transborder attacks it claimed had given rise to the right of self-defence,
or necessary to that end.113
The Nuclear Weapons Opinion dealt with this question in the abstract and did
not add anything very illuminating.114 It did make clear that states must take
environmental harm into consideration in assessing whether an action is in con-
formity with the principles of necessity and proportionality.115 However, the Court
avoided the more fundamental question whether nuclear weapons are by their
nature incapable of being proportionate. Certain states had argued that the very
nature of nuclear weapons and the high probability of an escalation of nuclear
exchanges meant that there was an extremely strong risk of devastation; this risk
factor negated the possibility of the condition of proportionality being complied
with. The Court did not find it necessary to inquire into the question whether
certain tactical nuclear weapons existed which were sufficiently precise to limit
these risks. It noted only that the nature of nuclear weapons and the profound risks
associated with them were factors to be taken into account by states considering
whether a nuclear response in self-defence was proportionate.
111 See Taft (n 60).

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

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

Article 51 requires that ‘Measures taken by Members in their exercise of this
right of self-defence shall be immediately reported to the Security Council’. This
116 Nuclear Weapons (n 8) para 127. 117 Nicaragua (Merits) (n 4) paras 195–9.
118 Nicaragua (Merits) (n 4) paras 231–4. 119 DRC v Congo (n 6) para 128.
provision was given new life by the Nicaragua decision. Before that decision
compliance had been erratic, but since then states have generally taken care to
report their use of force in self-defence to the Security Council.121 In Nicaragua the
Court held that, although this requirement was not part of customary international
law, it was significant in that failure to report could be an indication that the state
was not genuinely acting in self-defence.122 In DRC v Uganda when it came to
determine whether the use of force by Uganda within the territory of the DRC
could be characterized as self-defence it noted without comment that Uganda had
failed to report to the Security Council events that it regarded as requiring it to act
in self-defence.123 It seems to have treated this as an additional factor indicating the
illegality of Uganda’s actions, but it did not make this explicit. In Oil Platforms
the Court took account of the US reports to the Security Council in considering the
nature of its claim of self-defence.124
6.5 Anticipatory self-defence

The Court’s avoidance of certain controversial issues has attracted as much criticism
as its actual decisions. The Court has to date expressly chosen to avoid two divisive
issues in its judgments: anticipatory self-defence and self-defence against attacks by
non-state actors in the absence of state complicity in those attacks. First, the Court
has avoided the question of the lawfulness of anticipatory self-defence. In Nicaragua
it said that ‘the possible lawfulness of a response to the imminent threat of an armed
attack which has not yet taken place has not been raised’.125 Everything that follows
must be read in that light, though some commentators have asserted that a later
paragraph, which states that ‘[t]he exercise of the right of collective self-defence
presupposes that an armed attack has occurred’, should be read in isolation and
amounts to an express rejection of anticipatory self-defence.126 Judge Schwebel in
his Dissenting Opinion said that, insofar as this statement in the Judgment was
ambiguous and might be interpreted as meaning that self-defence was only possible
against an actual armed attack and that Article 51 of the UN Charter should be
narrowly construed, it was an obiter dictum and a mistaken one.127
The Court again avoided this issue in DRC v Uganda. It noted that Uganda had
‘insisted that Operation Safe Haven was not a use of force against an anticipated
attack’.128 Accordingly it would again express no view on that issue. However, there
are elements of the Court’s reasoning which seem to amount to a firm rejection of a
wide right of self-defence. The Court observed that the Ugandan High Command
document which set out its official position on the use of force made no reference to
121 See Gray (n 67) 121, 188. However, there have been some notable exceptions, as in the case of
Turkey’s actions against the PKK in Iraq. In contrast, Israel often invokes Art 51 in situations such as
Gaza where it is doubtful whether it is applicable.
122 Nicaragua (Merits) (n 4) para 200. See also Nuclear Weapons (n 8) para 44.
124 Oil Platforms (n 5) paras 48, 62, 67, 72.
125 Nicaragua (Merits) (n 4) para 35; it repeated this, para 194.
armed attacks which had already occurred against Uganda; instead the document
said that the use of force was necessary ‘to secure Uganda’s legitimate security
interests’. The security needs that it specified were essentially preventative.129 Later
in its Judgment the Court said that Article 51 justifies the use of force in self-
defence only within the strict confines there laid down. It does not allow the use of
force by a state to protect perceived security interests beyond those parameters.
Other means are available to a concerned state, including, in particular, recourse to
the Security Council.130 This is clearly counter to the ‘Bush Doctrine’ of pre-
emptive self-defence.131
In its Nuclear Weapons Opinion the Court avoided speculation on possible
scenarios in which nuclear weapons might be used; this enabled it to avoid any
consideration of the argument that the special nature of nuclear weapons justifies
anticipatory self-defence, that the threat they pose is so great that a possible target
state cannot wait for an actual attack. The challenges to the non-proliferation of
nuclear weapons posed by North Korea and Iran have widened this question to
whether the use of force might be justified to prevent the acquisition of nuclear
weapons by certain states.132
6.6 Self-defence against non-state actors

The Court has also avoided the question of the impact, if any, of the terrorist
attacks of 9/11 and subsequent state practice on the scope of the right of self-
defence. The Court has declined the opportunity to revise its Judgment in Nicar-
agua in subsequent cases. We have seen that in Nicaragua the Court held that there
could be an armed attack by irregular forces, that is, by non-state actors. An armed
attack by a state did not have to be by a regular army; it could include acts of non-
state actors if these met the test in the Definition of Aggression. There had to be a
‘sending by or on behalf of a state of armed bands . . . or substantial involvement
therein’. Mere supply of arms and logistic support did not amount to an armed
attack. There was some criticism of Nicaragua at the time for adopting a narrow
definition of armed attack. This question has become even more controversial since
the terrorist attacks of 9/11. Can there be an armed attack by non-state actors in the
absence of state involvement, or with a lesser degree of state involvement than that
required in Nicaragua, as a literal interpretation of Article 51 might allow, even
though it had not been interpreted in this way for fifty years? Is there now a wider
right of self-defence which allows the use of force in self-defence against such non-
state actors in the territory of a third state which was not involved in their attack?
Does this apply only in regard to terrorists? Or is there now a new right of extra-
territorial enforcement or a revival and expansion of the doctrine of necessity?
Should the rules on state responsibility (used in Nicaragua with regard to the
129 DRC v Congo (n 6) para 143. 130 DRC v Congo (n 6) para 148.
131 As set out in the 2002 and 2006 US National Security Strategies.
132 See C Gray, ‘The Use of Force to Prevent the Proliferation of Nuclear Weapons’ [2009]
Japanese Ybk Intl L 101.

relation of the USA and the contras in the context of establishing US responsibility
for unlawful use of force) now be used to expand the right of self-defence?
The Court has avoided these questions. Its discussion of the scope of the right of
self-defence in the Wall Opinion was brief and opaque. It considered the question
whether Israel could rely on the right of self-defence to justify the construction of
the wall in the occupied West Bank. As Judge Higgins pointed out in her Separate
Opinion, it was doubtful whether Article 51 was in fact applicable to the construc-
tion of the wall as this was not a use of force by Israel.133 However, Israel itself had
claimed in the UN General Assembly that the barrier was a measure wholly
consistent with Article 51 of the UN Charter and Security Council Resolutions
1368 (2001) and 1373 (2001) passed after the terrorist attacks of 9/11,134 and so
the Court considered this question in one paragraph.135 This was a simple rejection
of Israel’s claims rather than a reasoned discussion of the applicable law.
In a single, much-discussed paragraph the Court first quoted Article 51; it then
went on:
Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in
the case of armed attack by one State against another. However, Israel does not claim that
the attacks against it are imputable to a foreign State. The Court also notes that Israel
exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the
threat which it regards as justifying the construction of the wall originates within, and not
outside that territory. The situation is thus different from that contemplated by Security
Resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event
invoke those resolutions in support of its claim to be exercising a right of self-defence.
In DRC v Uganda, after the Court found that the DRC was not responsible for
armed attacks against Uganda, it said: ‘Accordingly, the Court has no need to
respond to the contentions of the Parties as to whether and under what conditions
contemporary international law provides for a right of self-defence against large-
scale attacks by irregular forces.’136 It did not consider the question of self-defence
against non-state actors in the absence of state complicity in the attacks.
The Court has been strongly criticized by separate and dissenting judges for its
avoidance of this question and for its refusal to revisit Nicaragua.137 Much has been
written in an attempt to divine the significance of the brief passages in the Wall
Opinion and DRC v Uganda. Some have interpreted the Court’s statements in the
former as rejecting a right of self-defence against non-state actors in cases where the
Nicaragua threshold for an armed attack was not met.138 Certainly the Court
rejected Israel’s claim, but it is not absolutely clear that this is a blanket rejection.
The Separate and Dissenting Opinions disagreed as to whether the Court had
pronounced on this question or not. The Court limited the Security Council

135 Wall (n 9) para 139. 136 DRC v Uganda (n 6) para 147.
137 Judges Higgins, Buergenthal, and Kooijmans in Wall (n 9); Judges Simma and Kooijmans in
DRC v Uganda (n 6).

138 C Tams, ‘Note Analytique: Swimming with the Tide or Seeking to Stem It’ (2005) 18 Revue
québécoise de droit international 275.

resolutions to their particular facts; they could not be relied on by Israel as the
occupying power to justify its invocation of self-defence in the occupied territor-
ies.139 It could be argued that the Court left open the wider question whether there
is a right to use force in self-defence against non-state actors in a third state where
the Nicaragua test is not met.140
It seems to me that the Court was well advised to avoid pronouncing on such a
controversial topic when this was not absolutely necessary for its decision in DRC v
Uganda or for its Wall Opinion. Commentators are divided on this issue and there is
no uniform state practice. A few Separate and Dissenting judges regretted that the
Court had not addressed the issue. They argued that the concept of ‘armed attack’
had changed since 9/11, and that self-defence allowed action against non-state actors
even where the Nicaragua threshold was not met. However, they did not make clear
the legal basis for their assertions that there is now a wider right of self-defence. It is
significant that, although Judges Higgins and Buergenthal criticized the Court in this
regard in the Wall Opinion and asserted that an occupying power should be able to
invoke the right of self-defence under Article 51, they did not raise the issue again in
the different factual situation of DRC v Uganda. Nevertheless Judges Simma
and Kooijmans in DRC v Uganda claimed that the Court should have taken the
opportunity to reconsider Nicaragua. Judge Simma asserted that since 9/11 the
‘international community’ looked more favourably on claims to self-defence against
terrorist actors. He agreed with Judge Kooijmans that it was ‘unreasonable’ to deny
the attacked state a right of self-defence against non-state actors in general. The
majority of the Court was obviously not persuaded by these arguments.
7. Conclusion
The International Court of Justice has taken the clear view that the prohibition of
the use of force in Article 2(4) of the UN Charter is a strict one, and it has resisted
calls to widen its view of the scope of self-defence. It has been consistent in its
approach to the use of force. It has repeatedly referred to its Judgment in Nicaragua,
and has reaffirmed its findings in that case; it has also referred back to its general
statements in Corfu Channel. In so doing it has given a key role to certain General
Assembly resolutions on the use of force.
The Court’s approach has been strongly challenged by the USA which lost two
cases concerning the use of force. But it should not be forgotten that the majority of
states do not follow the US approach to the use of force. It has also been attacked by
many commentators who argue for a wider right to use force. Some criticisms have
been made on policy grounds; judges and commentators have made allegations
139 Thus, if Gaza continued to be occupied territory Israel was not entitled to invoke self-defence
to justify the 2009 Gaza conflict.

140 However, Judge Higgins in Wall ((n 9) para 33) reluctantly concluded that Nicaragua was still
good law: ‘While accepting, as I must, that this is to be regarded as a statement of the law as it now
stands . . . ’
about the dangerous consequences of the Court’s Judgment. Some have challenged
its methodology and its conclusions on the law of intervention and self-defence.
Others have criticized it for not taking the opportunity to update its views.
Clearly the Court has a crucial role in this highly political area. Corfu Channel
was decided soon after World War II, and was an important step in establishing the
equal application of the law on the use of force. The Nicaragua case arose at the
height of the Cold War and set out the freedom of states to choose their own system
of government. The Nuclear Weapons Opinion showed the unbridgeable divide
between states and between the judges of the Court with regard to the legality of
weapons whose purpose after the end of the Cold War is not entirely clear. Oil
Platforms was decided during the lead-up to the 2003 invasion of Iraq; the division
between the judges in this case reflects the deep division between their states on the
legality of that use of force. The case also reflects the long-standing hostility
between the USA and Iran. The Wall Opinion dealt with issues arising out of
the Israeli occupation of Palestinian territories, a major barrier to peace in
the region. Finally, DRC v Uganda (2005) illustrates the sometimes destabilizing
consequences of the end of the Cold War.
The Security Council as the political organ with the primary responsibility for
maintaining international peace and security is generally reluctant to pronounce on
the legality of the use of force. The Court has established the fundamental principle
that it may consider conflicts that are also before the Security Council. As
the principal judicial organ of the UN it can contribute to the maintenance of
international peace and security by upholding the prohibition on the use of force.
But many questions as to how far the ICJ should defer to the Security Council
remain unanswered. The Court has been cautious in this regard, as reflected in its
choice of language: it does not pronounce on aggression or use the language of the
Charter in its dispositif. However, the institution of individual opinions by judges
allows for more open opinions in less cautious language than that of the Court.
Few cases on the use of force have reached a decision on the merits, so commen-
tators pore over them, looking for clues as to their true significance. They often
differ as to whether it is necessary to limit the Court’s statements to the facts of a
particular case or to interpret them more widely. The Court’s opaque statements
in the Wall Opinion and DRC v Uganda with regard to the use of force against
non-state actors have led to massive debate. What is the significance of the Court’s
avoidance of certain questions? Commentators differ as to whether the Court’s deci-
sion to avoid a question simply leaves the legality of a doctrine open, or indicates
that it is controversial and so undermines the doctrine, or does not rule it out and so
supports the doctrine. Although the Court has noted statements by states, including
the USA and Nicaragua, that the prohibition on the use of force is not only
customary international law, but even jus cogens, it has not elaborated on the
significance of this. Many commentators in their eagerness to proclaim post 9/11
changes in the law seem to treat this as only a matter of rhetoric; they do not accept
the Court’s consistent position that new rights to use force are not easy to establish.
12
The International Court of Justice and
the Law of Armed Conflicts
Claus Kreß
1. Introduction
The Permanent Court of International Justice did not deal with the laws of war in
any of its decisions. As such, the International Court of Justice (ICJ, or ‘the Court’)
was called upon to develop its jurisprudence on the law of armed conflicts without
the benefit of a legacy from its predecessor. It took a while for the Court to address
the jus in bello. While it referred to its 1949 Judgment in the Corfu Channel case1 in
a number of subsequent pronouncements on the law of armed conflicts, the Corfu
Judgment did not deal directly with this body of law. It was not until 1986, with
the Case Concerning Military and Paramilitary Activities in and Against Nicaragua
(the Nicaragua case)2 that the Court engaged in its first substantial treatment of the
subject matter. At this moment in time, most of the modern treaty law on the law
of armed conflicts—the detailed four 1949 Geneva Conventions (GC I to IV) and
the two 1977 Additional Protocols thereto (AP I and II)—had already entered into
force and provided for a fairly detailed legal regime with respect to international
armed conflicts.3 In addition to the Nicaragua case, the Court dealt with the subject
matter in a substantial way in three other cases, two of which were advisory in
nature: Legality of the Threat or Use of Nuclear Weapons in 1996 (Nuclear Weapons)4
and Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory in 2004 (Wall ),5 and one of which was contentious: the 2005
Judgment in the Case Concerning Armed Activities on the Territory of the Congo

ICJ Rep 14.
3 For a fairly comprehensive collection of the international treaties governing the law of armed
conflict, see German Federal Foreign Office/German Red Cross/Federal Ministry of Defence (eds),
Documents on International Humanitarian Law (St Augustin bei Bonn: Academia Verlag, 2nd edn
2012).

(DRC v Uganda).6 In addition, certain observations in the Case Concerning the
Arrest Warrant of 11 April 2000 (Arrest Warrant case, 2002),7 in the Case Concern-
ing Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Genocide case, 2007),8 in Jurisdictional Immunities of the State ( Jurisdic-
tional Immunities, 2012),9 and in Questions Relating to the Obligation to Prosecute or
Extradite (Prosecute or Extradite, 2012)10 complete the present picture of the
Court’s case law on the law of armed conflicts. These cases provided the Court
with the opportunity to address a vast number of legal issues covering almost the
entire field of the law of armed conflicts. The political sensitivities of the issues
before the Court differed from occasion to occasion, as did the level of controversy
within the Court in an almost accurate reflection thereof. While the Court pro-
nounced itself in virtual unanimity on the law of armed conflicts in the Nicaragua
case, its Advisory Opinion in Nuclear Weapons gave rise to an unprecedented
occurrence whereby all of the judges issued individual statements in the form of
declarations, separate or dissenting opinions.11 The Nuclear Weapons Opinion calls
to mind Hersch Lauterpacht’s famous statement: ‘if international law is at the
vanishing point of law, the laws of war are at the vanishing point of international
law’,12 as well as Christopher Greenwood’s subsequent observation that ‘the laws of
weaponry and targeting are, still more conspicuously, at the vanishing point of the
laws of war’.13 As we shall see, it was the advisory proceedings in Nuclear Weapons
that provided the Court with an opportunity to move to the ultimate vanishing
point of the law.
2. The judicial acquis: a sketch
It is not apparent that the doubts about the legitimacy of the continued existence
of a jus in bello, which were expressed in some quarters shortly after the modern
jus contra bellum had been enshrined in the Charter of the United Nations (UN
Charter),14 have ever disturbed the Court. In 1949, in the Corfu Channel case, the
Court did not seem to question the continued validity of the Hague Convention of

10 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) Judgment of
20 July 2012 (<http://www.icj-cij.org/docket/files/144/17064.pdf> (accessed 17 May 2013)).

11 See H Thirlway, ‘The Nuclear Weapons Advisory Opinions: The Declarations and Separate and
Dissenting Opinions’ in L Boisson de Chazournes and P Sands (eds), International Law, the Inter-
national Court of Justice and Nuclear Weapons (Cambridge: CUP, 1999) 390.
12 H Lauterpacht, ‘The Problem of Revision of the Law of War’ (1952) 29 BYIL 360, 382.
13 C Greenwood, ‘Current Issues in the Law of Armed Conflict: Weapons, Targets and Inter-
national Criminal Liability’ (1997) 1 Singapore J Intl & Comparative L 441, 441–2.
14 ILC Ybk 1949, 51–3.
The Law of Armed Conflicts 265
1907, No VIII, though it rejected its applicability in that case.15 And in 1986,
when the Court laid the ground for its jurisprudence on the law of armed conflicts
in the Nicaragua case, it did not even mention the temporary post-Charter hesita-
tion as regards the survival of the law of armed conflicts. The existence of a law of
armed conflicts and the latter’s co-existence with the modern prohibition on the use
of force was simply taken for granted.
2.1 Basic issues

2.1.1 Terminology
While the Court alluded to the concept of war in the Corfu Channel case, it has
never used the traditional language of ‘the laws and customs of war’,16 instead
embracing the modern term ‘law of armed conflicts’. Throughout its jurispru-
dence17 the Court has displayed a preference for the term ‘international humani-
tarian law’ to describe the vast majority of rules forming the law of armed conflicts,
the only exception being the law of neutrality. In Nuclear Weapons, the Court
summarized the main features of the historical development in the area as follows:
The ‘laws and customs of war’—as they were traditionally called—were the subject of efforts
at codification undertaken in The Hague (including the Conventions of 1899 and 1907),
and were partly based upon the St. Petersburg Declaration of 1868 as well as the results of
the Brussels Conference of 1874. This ‘Hague Law’ and, more particularly, the Regulations
Respecting the Laws and Customs of War on Land, fixed the rights and duties of
belligerents in their conduct of operations and limited the choice of methods and means
of injuring the enemy in an international armed conflict. One should add to this the
‘Geneva Law’ (the Conventions of 1864, 1906, 1929 and 1949), which protects the victims
of war and aims to provide safeguards for disabled armed forces personnel and persons not
taking part in the hostilities. These two branches of the law applicable in armed conflict have
become so closely interrelated that they are considered to have gradually formed one single
system, known today as international humanitarian law. The provisions of the Additional
Protocols of 1977 give expression and attest to the unity and complexity of that law.18
2.1.2 Teleology
In the Corfu Channel case, the Court recognized the existence of ‘elementary
considerations of humanity, even more exacting in peace than in war’,19 thereby
establishing a point of reference for an overarching set of principles and rules of
high moral character governing behaviour in times of peace and armed conflict
alike. In its 1951 Advisory Opinion on Reservations to the Convention on the Pre-
vention and Punishment of the Crime of Genocide, the Court implicitly built on the
concept of ‘elementary considerations of humanity’ and determined that the goal of

16 However, the term ‘jus in bello’ is used repeatedly in DRC v Uganda (n 6).
17 Beginning with the Judgment in Nicaragua (Merits) (n 2) 112, para 216.
18 Nuclear Weapons (n 4) para 75. 19 Corfu Channel (n 1) 22.
the Genocide Convention was to ‘confirm and endorse the most elementary
principles of morality’.20 In Nicaragua, the Court went on to make an explicit
connection between what it called a ‘minimum yardstick’ applicable in all armed
conflicts and the ‘elementary considerations of humanity’ as recognized in the
Corfu Channel case,21 and in Nuclear Weapons the Court expressed its conviction
that the ‘intrinsically humanitarian character of the legal principles in question’
permeates ‘the entire law of armed conflict’.22 In Wall the Court recognized that,
with the advent of Geneva Convention IV, the goal of protecting civilians had
acquired the primary place within the law of belligerent occupation, while the
protection of the rights of the state whose territory is occupied holds an equally
prominent place in the classic law of belligerent occupation as embodied in the
1907 Hague Regulations.23 The Court thus emphasized the humanitarian nature
of the contemporary law of armed conflicts and the latter’s ultimate purpose of
ensuring respect for the human person. In that sense, the Court considered the law
of armed conflicts to form part of a body of ‘humanitarian law’ in a broader, non-
technical sense, which also covers human rights law and international criminal law.
2.1.3 Legal nature

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

22 Nuclear Weapons (n 4) 259, para 86.
23 Wall (n 5) para 95.
[1970] ICJ Rep 3, paras 33–4.

25 Wall (n 5) para 157. 26 Nuclear Weapons (n 4) para 79.
nature of ‘principles of international customary law’.27 On the other hand, the

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

The Court has not engaged in an effort to specify the meaning of the terms
‘international’ and ‘non-international armed conflict’. In both the Nicaragua and
Genocide cases, however, the Court dealt with the question of how to classify a
conflict—ie whether it is international or non-international in nature—where a
foreign state intervenes in an armed struggle within another state. In Nicaragua, the
Court deemed it possible that in such a scenario a non-international armed conflict
and an international armed conflict may co-exist.30 The Court did not specify,
however, whether such a parallel application of the laws of non-international and
international armed conflict would be the legal consequence whenever the conduct
of non-state forces could not be attributed to the foreign state. In the Genocide case
the Court did not decide this question, either. Here, however, the Court opined in
passing that ‘logic does not require the same test to be adopted’ with respect to
attribution and conflict qualification and that therefore the ‘overall control’ of the
intervening state over the non-state armed forces, while not warranting the attribu-
tion of the latter’s conduct to the former state, ‘may well’ be sufficient to justify the
qualification of the entirety of the hostilities as one comprehensive international
armed conflict.31
In Wall, the Court affirmed the applicability of the law of military occupation as
part of the law of international armed conflict to the territories, which Israel has
been holding in possession since the 1967 armed conflict between Israel and
Jordan. The Court held this to be the case irrespective of whether or not Jordan
had any rights in respect of those territories before 1967. This conclusion was based
on the view that the first paragraph of Article 2 of the Fourth Geneva Convention
applies whenever an armed conflict has arisen between two contracting parties and
that ‘the object of the second paragraph is not to restrict the scope of application of
27 L Condorelli, ‘Le droit international humanitaire, ou de l’exploration par la Cour d’une terra à
peu près incognita pour elle’ in Boisson de Chazournes and Sands (n 11) 234.
29 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) (n 9) para 93.
30 Nicaragua (Merits) (n 2) para 219. 31 Bosnian Genocide (n 8) para 405.
the Convention, as defined by the first paragraph, by excluding therefrom territor-
ies not falling under the sovereignty of one of the contracting parties’.32
In Nuclear Weapons, the Court found that ‘the principle of neutrality . . . is
applicable to all international armed conflict’.33
2.1.5 Sources
As a rule, the Court has taken the relevant treaty law as the starting point of its legal
analysis and it has tended to give priority to this body of law so long as the relevant
treaty was applicable and the Court had jurisdiction in relation to it. At the same
time, customary international law has been playing a significant role in the Court’s
jurisprudence from the outset. Somewhat oddly, the Court avoided using the word
‘custom’ in Nicaragua, where it spoke of ‘(fundamental) general principles of
humanitarian law’,34 though it clearly had customary international law in mind.
In Nuclear Weapons, the Court made its reference to custom explicit and, as we have
seen, it went so far as to declare that ‘a great many rules of humanitarian law
applicable in armed conflict’, as contained in the Hague and Geneva Conventions,
are of a customary nature.35 The use of the words ‘a great many’ does, of course,
also imply a tacit qualification, leaving the door open for the Court to determine, if
the need arises, that a certain treaty provision contained, for example, in Additional
Protocol I, had not (yet) acquired customary law status. In Nuclear Weapons, the
Court also referred to the Martens Clause. It did not, however, rely on ‘the
principles of humanity’ and ‘the dictates of public conscience’ as a source of law
independent from custom.36
2.1.6 The law of armed conflicts within the international legal order
Without making a general statement to this effect, the Court has repeatedly made it
clear that it does not think that the existence of an armed conflict ipso facto
terminates or suspends the operation of treaties concluded in peacetime between
the states parties to an international armed conflict. In Nuclear Weapons, the Court
expressed the view that
the issue is not whether the treaties relating to the protection of the environment are or are
not applicable during an armed conflict, but whether the obligations stemming from these
treaties were intended to be obligations of total restraint during military conflict.37
In DRC v Uganda, the Court, referring back to a statement made in United States
Diplomatic and Consular Staff in Tehran, recalled that the Vienna Convention on
Diplomatic Relations continues to apply between two states notwithstanding the
32 Wall (n 5) paras 90–101. 33 Nuclear Weapons (n 4) para 89.

35 For the full quotation see 2.1.3; text accompanying n 26.
36 Nuclear Weapons (n 4) paras 78, 87. 37 Nuclear Weapons (n 4) para 30.
existence of a state of armed conflict between them.38 In particular, the Court has
taken the view that international human rights treaties continue to apply during
armed conflicts. It made one statement of a specific nature and one more general
statement in that respect. In Nuclear Weapons, the Court observed that:
the protection of the International Covenant on Civil and Political Rights does not cease in
times of war, except by operation of Article 4 of the Covenant whereby certain provisions
may be derogated from in a time of national emergency. Respect for the right to life is not,
however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life,
however, then falls to be determined by the applicable lex specialis, namely, the law
applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus
whether a particular loss of life, through the use of a certain weapon in warfare, is to be
considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be
decided by reference to the law applicable in armed conflict and not deduced from the terms
of the Covenant itself.39
In Wall, the Court, having endorsed this passage from Nuclear Weapons, held as
follows:
As regards the relationship between international humanitarian law and human rights law,
there are thus three possible situations: some rights may be exclusively matters of inter-
national humanitarian law; others may be exclusively matters of human rights law; yet others
may be matters of both these branches of international law.40
The qualification in Nuclear Weapons of the targeting rules (as part of the law on
the conduct of hostilities) as leges speciales with respect to the meaning to be
given to the concept of ‘arbitrary deprivation of life’ in Article 6 of the
International Covenant on Civil and Political Rights, probably falls within the
first of the three categories of situations listed in the above quotation. In Wall,
the Court was concerned with the second type of situation when it found that
Articles 12 (on liberty of movement etc) and 17 (on the right to privacy etc) of
the International Covenant on Civil and Political Rights applied to Israel’s
construction of the barrier in the occupied territories without seeing the content
of those fundamental rights as being superseded by any lex specialis flowing from
the law of belligerent occupation.41
In Nuclear Weapons, the Court also turned its attention to the interrelation
between the law of armed conflicts and the jus contra bellum under the UN Charter.
In the abstract, the Court made the following statement, which fully embraces the
idea of the complete separation of the law of armed conflicts from the jus contra
bellum:
[A] use of force that is proportionate under the law of self-defence, must, in order to be
lawful, also meet the requirements of the law applicable in armed conflict which comprise in
particular the principles and rules of humanitarian law.42
38 DRC v Uganda (n 6) para 323. 39 Nuclear Weapons (n 4) para 25.

40 Wall (n 5) para 106. 41 Wall (n 5) paras 128, 136.
In the same Advisory Opinion, however, the Court reached a conclusion, the
second (sub-) paragraph of which leaves room for the interpretation that the right
to self-defence may, in extreme circumstances, trump the law of armed conflicts:
It follows from the above-mentioned requirements that the threat or use of nuclear weapons
would generally be contrary to the rules of international law applicable in armed conflict,
and in particular the principles and rules of humanitarian law.
However, in view of the current state of international law, and of the elements of fact at its
disposal, the Court cannot conclude definitively whether the threat or use of nuclear
weapons would be lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake.43
In Wall, the Court, perhaps inadvertently, again cast a shadow of doubt on the
rigour with which it adheres to the separation thesis. Immediately after identifying
‘breaches by Israel of various of its obligations under the applicable international
humanitarian law’, the Court queried whether the construction of the barrier might
be consistent with Article 51 of the UN Charter. It then found that the conditions
of Article 51 had not been fulfilled and that the latter provision was therefore
irrelevant in the case before it.44 This is different from stating unambiguously that
Article 51 of the UN Charter is not capable, as a matter of principle, of justifying a
breach of international humanitarian law.
2.2 ‘Geneva law’

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

In the Nicaragua case, the Court (without explicitly referring to the concept of
custom, as we have seen45) identified the existence of ‘fundamental general prin-
ciples of humanitarian law’ applicable outside the treaty framework of the 1949
Geneva Conventions. The Court held as follows:
Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines
certain rules to be applied in armed conflicts of a non-international character. There is no
doubt that, in the event of international armed conflicts, these rules also constitute a
43 Nuclear Weapons (n 4) para 105 sub E. 44 Wall (n 5) para 139.

45 See in 2.1.5; text accompanying n 35.
minimum yardstick, in addition to the more elaborate rules which are also to apply to
international conflicts; and they are rules which, in the Court’s opinion, reflect what the
Court in 1949 called ‘elementary considerations of humanity’ . . . 46
The Court brought those general principles to bear with regard to the killing, by
non-state actors in a non-international armed conflict, of judges, police officers,
state security officers, etc. The Court found such killings to be in violation of the
prohibition on carrying out summary executions and ‘probably also of the prohib-
ition of “violence to life and person, in particular murder to [sic] all kinds . . . ”’.47
2.2.2 The law of belligerent occupation

The law of belligerent occupation formed the object of observations by the Court in
Wall and the DRC v Uganda case. To date, it is this branch of the law of armed
conflicts that has received the most detailed attention by the Court.
2.2.2.1 The prerequisites of belligerent occupation

In the DRC v Uganda case, the Court elaborated upon the customary prerequisites
of a belligerent occupation as set out in Article 42 of the 1907 Hague Regulations,
and it applied this body of law to the Ugandan presence in the Democratic
Republic of the Congo at the material time. The relevant paragraph reads as
follows:
In order to reach a conclusion as to whether a State, the military forces of which are present
on the territory of another State as a result of an intervention, is an ‘occupying power’ in the
meaning of the term as understood in the jus in bello, the Court must examine whether there
is sufficient evidence to demonstrate that the said authority was in fact established and
exercised by the intervening State in the areas in question. In the present case the Court will
need to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in
particular locations but also that they had substituted their own authority for that of the
Congolese Government.48
On this basis, the Court rejected the idea of an ‘indirect’ occupation by a foreign
state through non-state actors, unless the latter’s conduct is attributable to that
foreign state.
2.2.2.2 Prolonged occupation

In the Wall case, the Court applied Article 6, paragraph 3 of Geneva Convention
IV to Israel’s ‘prolonged’ occupation of the West Bank. The Court did not specify
the date of the ‘general close of military operations’ as referred to in this provision,
but it stated that ‘the military operations leading to the occupation of the West
Bank ended a long time ago’.49 Starting from that premise, the Court determined
that at the material time only those Articles of Geneva Convention IV, which are
46 Nicaragua (Merits) (n 2) para 218. 47 Nicaragua (Merits) (n 2) para 255.

48 DRC v Uganda (n 6) para 173. 49 Wall (n 5) para 125.
listed in Article 6, paragraph 3, remained applicable in the occupied territory in
question.50
2.2.2.3 Substantive obligations

In the DRC v Uganda case, the Court had little difficulty qualifying the atrocities
committed by the Ugandan armed forces against civilians in the occupied territory
in the Democratic Republic of the Congo as falling under Articles 27 (respect for
the person, honour, family rights, etc) and 32 (protection from physical suffering or
extermination) of Geneva Convention IV.51 In addition, the Court made the
following general observation regarding the key duty of the occupying power
under Article 43 of the 1907 Hague Regulations:
This obligation [comprises] the duty to secure respect for the applicable rules of inter-
national human rights law and international humanitarian law, to protect the inhabitants of
the occupied territory against acts of violence, and not to tolerate violence by any third
party.52
In Wall, the Court found Israel’s settlements in the West Bank to be in violation of
Article 49, paragraph 6 of the Fourth Geneva Convention. In that context, the
Court adopted the following interpretation of Article 49, paragraph 6:
That provision prohibits not only deportations or forced transfers of population such as
those carried out during the Second World War, but also any measures taken by an
occupying Power in order to organize or encourage transfers of parts of its own population
into occupied territory.53
The Court also held that the construction of the barrier violated Article 49,
paragraph 6, because it ‘contributed to demographic changes’ in the occupied
territories.54
The Court also dealt with a number of provisions in the 1907 Hague Regula-
tions and in the Fourth Geneva Convention which seek to protect property
interests. In that respect, it drew an initial distinction between the conduct of
hostilities provisions contained in Section II and those governing the law of
belligerent occupation as set out in Section III of the 1907 Hague Regulations,
and held that Article 23(g) of the latter Regulations, which forms part of Section II,
was not pertinent with respect to the construction of the Wall.55 The latter’s
construction, however, was said by the Court to have led ‘to the destruction or
requisition of properties under conditions which contravene the requirements of
Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the
Fourth Geneva Convention’.56
50 Wall (n 5) para 125.

51 DRC v Uganda (n 6) para 211; the Court does not, however, explicitly cite the two pertinent
provisions.
52 DRC v Uganda (n 6) para 178. 53 Wall (n 5) para 12.
56 Wall (n 5) para 132.
In the DRC v Uganda case, the Court also addressed the exploitation of natural
resources in an occupied territory and established a connection with the old
prohibition of pillage. The passage in question reads as follows:
[W]henever members of the UPDF [Uganda Peoples’ Defence Forces] were involved in the
looting, plundering and exploitation of natural resources in the territory of the DRC, they
acted in violation of the jus in bello, which prohibits the commission of such acts by a foreign
army in the territory where it is present. The Court notes in this regard that both Article 47
of the Hague Regulations of 1907 and Article 33 of the Fourth Geneva Convention of 1949
prohibit pillage.57
2.3 ‘Hague law’

Nuclear Weapons provided the Court with a rare opportunity to set out its views on
certain important aspects of the law governing the conduct of hostilities and, more
specifically, the law prohibiting certain means of conduct. In its search for a specific
prohibition on the recourse to nuclear weapons the Court shed light on the terms
‘poison or poisoned weapons’ as used in Article 23(a) of the 1907 Hague Regula-
tions and on the terms ‘asphyxiating, poisonous or other gases’ and ‘all analogous
liquids, materials or devices’ as employed in the 1925 Geneva Protocol. The Court
required in all cases that ‘the prime, or even exclusive, effect’ of such weapons is to
poison or asphyxiate, a requirement which led the Court to exclude nuclear
weapons from the scope of the terms concerned.58 The Court did not dwell
upon the definition of the key term ‘chemical weapon’ as contained in the 1993
Convention on the Prohibition of the Development, Production, Stockpiling and
Use of Chemical Weapons and on Their Destruction, but confined itself to the
statement that this term does not cover nuclear weapons either.59 Having failed to
identify any treaty provision with a universal scope of application specifically
prohibiting the use of nuclear weapons, the Court was also unable to establish
the existence of a rule of customary international law specifically prohibiting the use
of nuclear weapons:
The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear
weapons as such is hampered by the continuing tensions between the nascent opinio juris on
the one hand, and the still strong adherence to the practice of deterrence on the other.60
The Court then inquired as to whether a prohibition on the use of nuclear weapons
results from a general rule on the law on the conduct of hostilities. At this juncture,
the Court made an exception to its general approach to the sources of law as set out
above and left undecided the applicability of the First Additional Protocol to the
Geneva Conventions to the use of Nuclear Weapons.61 Instead it placed all the
emphasis on the relevant customary law. The Court recognized two paramount
customary law principles governing the choice of means of conduct:
57 DRC v Uganda (n 6) para 245. 58 Nuclear Weapons (n 4) paras 55–6.

59 Nuclear Weapons (n 4) para 57. 60 Nuclear Weapons (n 4) para 73.
The cardinal principles contained in the texts constituting the fabric of humanitarian law are
the following. The first is aimed at the protection of the civilian population and civilian
objects and establishes the distinction between combatants and non-combatants; States
must never make civilians the object of attack and must consequently never use weapons
that are incapable of distinguishing between civilian and military targets. According to the
second principle, it is prohibited to cause unnecessary suffering to combatants: it is
accordingly prohibited to use weapons causing such harm or uselessly aggravating their
suffering. In application of that second principle, States do not have unlimited freedom of
choice of means in the weapons they use.62
Applying those principles to the legal question before it, the Court reached the
conclusion that:
in view of the unique characteristics of nuclear weapons . . . the use of such weapons in fact
seems scarcely reconcilable with respect for such requirements. Nevertheless, the Court
considers that it does not have sufficient elements to enable it to conclude with certainty that
the use of nuclear weapons would necessarily be at variance with the principles and rules of
law applicable in armed conflict in any circumstance.63
To this cautiously worded conclusion, the Court then added the famous observa-
tion that:
it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear
weapons by a State in an extreme circumstance of self-defence, in which its very survival
would be at stake.64
These two ‘inconclusive conclusions’ reappear (in a somewhat differently worded
fashion) as two subparagraphs in the dispositif.65
The Nuclear Weapons Court dealt separately with the protection of the environ-
ment in times of armed conflict and it established, as flowing from Articles 35,
paragraph 3, and 55 of Additional Protocol I, the:
general obligation to protect the natural environment against widespread, long-term and
severe environmental damage; the prohibition of methods and means of warfare which are
intended, or may be expected, to cause such damage; and the prohibition of attacks against
the natural environment by way of reprisals.66
While the Court described these rules as ‘powerful constraints’, it was careful to add
the words ‘for all the States having subscribed to these provisions’, which places a
significant question mark over the customary nature of those rules. With respect to
nuclear weapons, the dictum on Articles 35, paragraph 3, and 55 of Additional
Protocol I is further qualified by the Court’s general caveat as to this Protocol’s
applicability. With respect to customary international law, the Court was more
cautious, holding that ‘respect for the environment is one of the elements that go to
assessing whether an action is in conformity with the principles of necessity and
proportionality’.67

64 Nuclear Weapons (n 4) para 97. 65 Nuclear Weapons (n 4) para 105 sub E.
2.4 Enforcement
The Court has made a number of important statements on issues of state responsi-
bility, and it has also begun to deal with questions pertaining to individual criminal
responsibility for certain breaches of certain rules of the law of armed conflict.
2.4.1 State responsibility

2.4.1.1 Attribution
In the DRC v Uganda case, the Court determined that the fact that the ultra vires
nature of an act of a member of the armed forces of a state does not hinder the
attribution of this act to the state of the armed forces concerned:
According to a well-established rule of a customary nature, as reflected in Article 3 of the
Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as
well as in Article 91 of Protocol I additional to the Geneva Conventions of 1949, a party to
an armed conflict shall be responsible for all acts by persons forming part of its armed
forces.68
In Nicaragua, the Court decided to apply the generally applicable prerequisites for
the attribution of conduct by private persons within the context of the law of armed
conflict.69 In the Case Concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide the Court confirmed the non-existence of
a lex specialis in this respect and, in interpreting Nicaragua, identified as relevant in
this context the two separate concepts of an organ de facto and of a person acting
under the effective control of the state concerned. In that respect, the Court
considered Articles 4 and 8 of the International Law Commission (ILC) Articles
on State Responsibility for Internationally Wrongful Acts as embodying customary
international law.70
2.4.1.2 State assistance with acts contrary to the law of armed conflict
by private persons and a state’s lack of due diligence in that respect
In Nicaragua, the Court derived from Common Article 1 of the Geneva Conven-
tions the obligation of states parties not to encourage private persons to act in
breach of the law of international armed conflict. This obligation was held to reflect
customary international law and was determined to extend to conduct of private
persons contrary to provisions of the law of non-international armed conflict.71
The USA was held to have violated this customary rule by supplying private persons
with a manual on psychological operations which contained advice to ‘neutralize’
certain targets not amounting to a military objective within the meaning of the law
of armed conflicts.72
68 DRC v Uganda (n 6) para 214. 69 Nicaragua (Merits) (n 2) paras 108–16.

71 Nicaragua (Merits) (n 2) para 220. 72 Nicaragua (Merits) (n 2) para 255.
In DRC v Uganda, the Court again had to deal with the facilitation by a state of
acts of private persons contrary to the law of armed conflicts. This time, the Court
analysed the action within the context of the state’s ‘duty of vigilance’ over the
conduct of private persons in a state of belligerent occupation. In respect of this
duty, the Court found that:
the fact that Uganda was the occupying Power in Ituri district . . . extends Uganda’s obliga-
tion to take appropriate measures to prevent the looting, plundering and exploitation of
natural resources in the occupied territory to cover private persons in this district and not
only members of Ugandan military forces.73
2.4.1.3 Belligerent reprisals and necessity

In Nuclear Weapons, the Court refrained from stating its view on the customary
nature of the prohibition contained in Article 51, paragraph 6 of Additional
Protocol I on launching attacks against the civilian population or civilians by way
of reprisals. It merely held as follows:
Certain States asserted that the use of nuclear weapons in the conduct of reprisals would be
lawful. The Court does not have to examine, in this context the question of armed reprisals
in time of peace, which are considered to be unlawful. Nor does it have to pronounce on the
question of belligerent reprisals save to observe that in any case any right of recourse to such
reprisals would, like self-defence, be governed inter alia by the principle of proportionality.74
In the Wall case, the Court held that the construction of the barrier was (prima
facie) in breach of certain conduct rules of the law of armed conflicts. It then
considered the issue of the applicability of the state of necessity as a ground
precluding international wrongfulness within the law of armed conflicts. Here
again, the Court refrained from deciding the core question and instead rejected
the ‘state of necessity-defence’ on the facts. It nevertheless mentioned the main
argument against relying on the state of necessity argument within the context of
the law of armed conflicts:
[T]he Court is bound to note that some of the conventions at issue in the present instance
include qualifying clauses of the rights guaranteed . . . Since those treaties already address
considerations of this kind within their own provisions, it might be asked whether a state of
necessity as recognized in customary international law could be invoked with regard to those
treaties as a ground for precluding the wrongfulness of the measures or decisions being
challenged.75
2.4.1.4 Reparation
In Wall, the Court confirmed the obligation of a state in breach of the law of armed
conflicts to make reparation pursuant to the law of state responsibility for inter-
nationally wrongful acts. In the same Advisory Opinion, the Court did not deal in
any detail with the question of whether, in addition to the victim state(s), individ-
ual victims were also directly entitled to claim reparation under the law of armed
73 DRC v Uganda (n 6) para 248; see also para 179.

74 Nuclear Weapons (n 4) para 46. 75 Wall (n 5) para 140.
conflicts. It would appear to be stretching things to read an affirmative statement to

that effect into the following passage of the Advisory Opinion:
Moreover, given that the construction of the wall in the Occupied Palestinian Territory has,
inter alia, entailed the requisition and destruction of homes, businesses and agricultural
holdings, the Court finds further that Israel has the obligation to make reparation for the
damage caused to all the natural and legal persons concerned. [emphasis added]76
In Jurisdictional Immunities, the Court was careful to distinguish between, on the
one hand, the (procedural) immunity of the state before the courts of another state
in civil proceedings for reparations for serious violations of the law of armed
conflicts and, on the other hand, the (substantive) obligation of the internationally
responsible state to make reparation. Only the first issue was before the Court and,
accordingly, it did not answer the question whether the individual victim of a
serious violation of the law of armed conflicts possesses a right to reparation under
international law against the internationally responsible state. The following pas-
sage, however, may be read to indicate a certain reluctance to admit to an (unfet-
tered) right to reparation of the individual victim:
[A]gainst the background of a century of practice in which almost every peace treaty or post-
war settlement has involved either a decision not to require the payment of reparations or
the use of lump sum settlements and set-offs, it is difficult to see that international law
contains a rule requiring the payment of full compensation to each and every individual
victim as a rule accepted by the international community of States as a whole as one from
which no derogation is permitted.77
2.4.1.5 The legal position of third states in case of a violation

of the law of armed conflicts
As was mentioned above,78 the Court determined in Wall that ‘a great many rules
of humanitarian law applicable in armed conflict . . . are essentially of an erga omnes
character’. The Court specified that, as a consequence thereof, all states possess a
legal interest in reacting to a violation of those rules. In the same Advisory Opinion,
the Court went one important step further and held that, as a result of Article 1 of
the Fourth Convention:
every State party to that Convention, whether or not it is a party to a specific conflict, is
under an obligation to ensure that the requirements of the instruments in question are
complied with. [emphasis added]79
The Court went some way to give content to this obligation and identified the
duties of all states not to recognize the illegal situation and not to render aid or
assistance to its maintenance.80 The Court also held that:
76 Wall (n 5) para 152.

77 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening ) (n 9) para 94.
78 See 2.1.3: text accompanying n 25. 79 Wall (n 5) para 158.
80 Wall (n 5) para 159.
the United Nations, and especially the General Assembly and the Security Council, should
consider what further action is required to bring to an end the illegal situation resulting from
the construction of the wall and the associated régime taking due account of the present
Advisory Opinion.81
As such, the Court has placed the avenue for collective action in the forefront
without unambiguously rejecting the idea of a third state’s right (or even obliga-
tion) to adopt unilateral countermeasures.
2.4.2 Individual criminal responsibility

As of yet, pronouncements by the Court on the law of war crimes remain few in
number, and those pronouncements do not deal with specific questions of sub-
stantive international criminal law. In Jurisdictional Immunities, the Court con-
firmed the concept of war crimes as crimes under international law as established by
the Nuremberg International Military Tribunal.82 In the Arrest Warrant case, the
Court denied that there was an exception to immunity ratione personae before a
foreign criminal court for international crimes.83 At the same time, the Court
observed obiter that the international law on immunities did not represent a bar to
criminal prosecution in the following circumstances:
First, such persons [those holders of high-ranking office in a state, including the Foreign
Office, enjoying international immunity ratione personae; CK] enjoy no immunity under
international law in their own countries, and may thus be tried by those countries’ courts in
accordance with the relevant rules of domestic law.
Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which
they represent or have represented decides to waive that immunity.
Thirdly, after a person ceases to hold the office of Minister of Foreign Affairs, he or she
will no longer enjoy all the immunities accorded by international law in other States.
Provided that it has jurisdiction under international law, a court of one State may try a
former Minister for Foreign Affairs of another State in respect of acts committed prior or
subsequent to his or her period of office, as well as in respect of acts committed during that
period of office in a private capacity.
Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to
criminal proceedings before certain international criminal courts, where they have juris-
diction. Examples include the International Criminal Tribunal for the Former Yugo-
slavia, and the International Criminal Tribunal for Rwanda, established pursuant to
Security Council resolutions under Chapter VII of the United Nations Charter, and
the future International Criminal Court created by the 1998 Rome Convention. The
latter’s Statute expressly provides, in Article 27, paragraph 2, that ‘[i]mmunities or special
procedural rules which may attach to the official capacity of a person, whether under
national or international law, shall not bar the Court from exercising its jurisdiction over
such a person’.84
81 Wall (n 5) para 160.

82 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening ) (n 9) para 81 in
conjunction with para 52.
2.5 Humanitarian assistance

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

It has already been mentioned86 that the Court, in Nuclear Weapons, found that
‘the principle of neutrality . . . is applicable to all international armed conflict’. In
the same Advisory Opinion, the Court considered this principle to be ‘of a
fundamental character similar to that of the humanitarian principles and rules’.87
This strongly suggests that the Court believed in the customary nature of the
principle. The Court refrained, however, from specifying the principle’s content.
Instead it referred to the legal view as formulated by Nauru during the advisory
proceedings:
The principle of neutrality, in its classic sense, was aimed at preventing the incursion of
belligerent forces into neutral territory, or attacks on the persons or ships of neutrals. Thus:
‘the territory of neutral powers is inviolable’ (Article 1 of the Hague Convention (V)
Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on
Land, concluded on 18 October 1907); ‘belligerents are bound to respect the sovereign
rights of neutral powers . . . ’ (Article 1 to the Hague Convention (XIII) Respecting the
Rights and Duties of Neutral Powers in Naval War, concluded on 18 October 1907),
‘neutral states have equal interest in having their rights respected by belligerents . . . ’
(Preamble to Convention on Maritime Neutrality, concluded on 20 February 1928). It is
clear, however, that the principle of neutrality applies with equal force to transborder
incursions of armed forces and to the transborder damage caused to a neutral State by the
use of a weapon in a belligerent State.88
As the Court did not explicitly endorse that statement, its status in the Advisory
Opinion is not entirely clear. The most plausible way to read the Opinion in this
context is to assume that the Court embraced Nauru’s position implicitly and
included the principle of neutrality into that body of principles and rules or the law
of armed conflicts which, according to this view, will ‘generally’ be violated by a use
of nuclear weapons. It must be acknowledged, however, that such a reading is not
unambiguously borne out by the wording of the relevant passages of the Advisory
Opinion.
85 Nicaragua (Merits) (n 2) para 242. 86 See 2.1.4; text accompanying n 33.

3. Some reflections on the character and style

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

of legal experimentation
In 1989, Luigi Condorelli characterized the law of armed conflicts as a ‘laboratory
of legal experimentation’. He listed the obligation erga omnes, the undertaking
under Common Article 1 of the Geneva Conventions to ‘ensure respect’ for the
Conventions, and the category of jus cogens among the innovative legal doctrines
that a deeper study of the law of armed conflicts could bring to light, and which,
89 See 2.2.2.1; text accompanying n 48.

90 In the latter sense, see the Separate Opinion of Judge Kooijmans in DRC v Uganda (n 6) paras
47–9; the expert views as recorded in T Ferraro (ed), Occupation and other Forms of Administration of
Foreign Territory (Geneva: International Committee of the Red Cross, March 2012) 19; see also
S Verhoeven, ‘A Missed Opportunity to Clarify the Modern Ius Ad Bellum. Case Concerning Armed
Activities on the Territory of the Congo’ (2006) 45 Military L & L of War Rev 355, 361–2.
91 See 2.2.2.
92 On the controversies surrounding Art 6, para 3 of the Fourth Convention, see, generally,
A Roberts, ‘Prolonged Military Occupation: The Israeli-Occupied Territories 1967–1988’ in E

Playfair (ed), International Law and the Administration of Occupied Territories (Oxford: OUP, 1992)
36–9 (using the term ‘legal oddity’ at 38); for a critique of the manner in which the Court applied Art
6, para 3 to the Israeli occupation, see A Imseis, ‘Critical Reflections on the International Humanitar-
ian Law Aspects of the ICJ Wall Advisory Opinion’ (2005) 99 AJIL 102, 105–9; for criticisms of the
ICJ’s approach to Art 6, para 3, see also the expert views as recorded in Ferraro (n 90) 77–8.
93 A reader familiar with Sir Hersch Lauterpacht’s The Development of International Law by the
International Court (London: Stevens & Sons, 1958) will recognize that the selection of topics was
inspired by this magnum opus.
once discovered in that area, could then spill over into international law more
broadly.94 It is essentially the Wall Opinion that marked the beginning of the
Court’s work in this laboratory. In light of its famous dictum in Barcelona Traction,
it did not come as a surprise that the Court applied the concept of the obligation
erga omnes to the law of armed conflicts. The much more remarkable engagement
with legal experimentation consisted in the determination that the undertaking to
‘ensure respect’ in Common Article 1 of the Geneva Conventions means that all
states parties to the Conventions, whether or not they are party to the relevant
armed conflict, are under a duty to react to violations of those Conventions. With
this finding, the Court (implicitly) endorsed an interpretation which had famously
been put forward by Jean S Pictet in his Commentaries on the Geneva Conventions95
and which has subsequently been taken up and elaborated upon by Luigi Con-
dorelli and Laurence Boisson de Chazournes.96 In 1999, however, this reading of
Common Article 1 was powerfully challenged by Frits Kalshoven.97 Kalshoven
reminded his readers how surprisingly progressive it would have been for states in
1949 to enshrine a duty of third states to react to breaches of the law of armed
conflicts and he demonstrated that the travaux préparatoires did not reveal such an
intention. In light of those counterarguments and in light of the fact that subse-
quent state practice relating to Common Article 1 could hardly be said to support
the progressive interpretation, the Court appeared thirsty for adventure when it
embraced such an interpretation without any regard for the contrary point of
view98—notwithstanding the fact that it refrained from elaborating too much on
the precise contours of the duty of third states to react.
Such thirst for adventure has, however, remained the exception. Instead, the
Court has shown an almost curious degree of moderation with respect to the
recognition of the concept of jus cogens. Given the Court’s jurisprudence on
the basic principles of the law of armed conflicts as expressions of elementary
considerations of humanity, in light of the textual argument provided by the
formulation of a common provision of the Geneva Conventions (Articles 51, 52,
131, and 148),99 and finally with a view to the fact that in 1995 the International
Criminal Tribunal for the Former Yugoslavia (ICTY) had recognized the jus cogens
94 L Condorelli, ‘Le droit international humanitaire en tant qu’atelier d’expérimentation juridique’
in W Haller, A Kötz, G Müller and D Thürer (eds), Im Dienst der Gemeinschaft: Festschrift für Dietrich
Schindler zum 65. Geburtstag (Basel: Helbing Lichtenhahn, 1989) 193–200.
95 JS Pictet, La Convention de Genève pour l’amélioration du sort des blessés et des maladies dans les
forces armées en campagne (Geneva: International Committee of the Red Cross, 1952) 27.
96 L Condorelli and L Boisson de Chazournes, ‘Quelques remarques à propos de l’obligation des
états de “respecter et faire respecter” le droit international humanitaire “en toutes circonstances” ’ in
C Swinarski (ed), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-
Rouge en l’honneur de Jean Pictet (Dordrecht: Martinus Nijhoff, 1984) 17–35; L Condorelli and
L Boisson de Chazournes, ‘Common Art 1 of the Geneva Conventions revisited: Protecting Collective
Interests’ (2000) 82 IRRC 67–86.
97 F Kalshoven, ‘The Undertaking to Respect and Ensure Respect in all Circumstances: From Tiny
Seed to Ripening Fruit’ (1999) 2 Ybk Intl Hum L 3–61.

98 This omission was criticized by Judge Kooijmans in his Separate Opinion in Wall (n 5) 232–4,
paras 46–51.
99 On this argument see Condorelli (n 94) 198.
character of most customary rules of international humanitarian law,100 one could
have expected the Court to make a similar statement in 1996 in Nuclear Weapons.
Instead, it introduced the new legal category of ‘intransgressible principles of
international customary law’ in order to avoid a finding on the jus cogens issue.101
Even after having rejected, in Jurisdictional Immunities, an effort to derive far-
reaching legal consequences from the jus cogens nature of a norm, the Court
remained careful not to determine positively that the rules of the law of armed
conflicts in question were of such a nature. Again perhaps somewhat in contrast to
the Court’s progressive approach to Common Article 1, but much more under-
standable as a matter of the lex lata, is its rejection of a war crimes exception to the
international law immunity ratione personae before foreign courts in Arrest War-
rant102 and its reluctance to recognize an international legal right to reparation of
an individual victim of a war crime.103
All in all, Luigi Condorelli would probably agree that, apart from the concept of
the obligation erga omnes and the idea of a duty of third states to react to violations
of the law of armed conflicts, there is still considerable room for the ICJ to explore
the latter body of law’s potential to serve as a laboratory of legal experimentation.
3.2 An emphasis on major principles

In Nicaragua and Nuclear Weapons, the Court appeared to be particularly con-
cerned with setting out the guiding principles of the law of armed conflicts. In the
former decision, it established, within the realm of the ‘Geneva Law’, the existence
of some ‘fundamental general principles of humanitarian law’ governing all armed
conflicts,104 and in the latter Advisory Opinion the Court identified two ‘cardinal
principles . . . constituting the fabric of humanitarian law’105 pertaining to the
‘Hague Law’. To those key principles the Court added in Nuclear Weapons the
principle of ‘respect for the environment’106 as a relevant consideration in the law
on the conduct of hostilities, and the ‘principle of neutrality’.107 Also with respect
to the law of belligerent occupation, the Court was eager, both in Wall and in the
DRC v Uganda case, to underline some overarching principles. In the former
Advisory Opinion, the Court emphasized the protection of civilians as the main
goal of Geneva Convention IV,108 and the Opinion set out some broad principles
on the relationship between the law of armed conflicts and international human
rights law.109 In the latter Judgment, the Court observed the relevance of ‘the
applicable rules of international human rights law’ in giving Article 43 of the 1907
100 Prosecutor v Dusko Tadić, ‘Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction’ (Appeal Chamber) (2 October 1995) IT-94-1-AR72 (ICTY), para 143.

101 For a critique of the undue caution of the Court, see Judge Bedjaoui in his Declaration and
Judges Weeramantry and Koroma in their Dissenting Opinions in Nuclear Weapons (n 4) para 21, and
496, 572–3, respectively.
102 See 2.4.2. 103 See 2.4.1.4. 104 See 2.2.1; quotation accompanying n 46.
105 See 2.3; quotation accompanying n 62. 106 See 2.3; quotation accompanying n 66.
107 See 2.6. 108 See 2.1; text accompanying n 23.
109 See 2.1.6; quotation accompanying n 40.
Hague Regulations its proper contemporaneous meaning110 and formulated the

idea that the old prohibition on pillage can be used to deal with exploitation of the
occupied territory’s natural resources.111
While important principles governing the law of armed conflicts have received
international judicial recognition, those principles have enjoyed only relatively little
elaboration. This is readily understandable where the principle at stake is rather
new and where the development of the law has not yet reached a stage of consoli-
dation in every detail. This consideration would appear to apply to the interrela-
tionship between the law of armed conflicts and the international law of human
rights, the relevance of the latter body of law within the context of the occupying
state’s basic duty under Article 43 of the 1907 Hague Regulations, the restraining
force of the principle of respect for the natural environment on the conduct of
hostilities, and the extension of the old prohibition on pillage to the field of
exploitation of the occupied territory’s natural resources. In those contexts, which
were perhaps not at the heart of the subject matter of the proceedings concerned,
the Court has usefully opened the door for future legal developments, but wisely
without foreshadowing them in detail. The usefulness of leaving the analysis at the
level of a principle of high abstraction is less apparent, however, with respect to the
‘principle of neutrality’ as referred to in Nuclear Weapons. The Court was not only
cryptic with respect to the question at stake as to whether and to what extent the use
of nuclear weapons affects the ‘principle of neutrality’, but it also failed even to
begin to clarify the distinct legal significance of the principle of neutrality vis-à-vis
the principle of the inviolability of a state’s territory in times of peace.112 Somewhat
ironically, the one firm statement made by the Court with respect to the ‘principle
of neutrality’—that is, its applicability ‘to all international armed conflict’—is
debatable in its sweeping form. The Court did not even mention the possibility
that the law of neutrality could constitute the last area in which the concept of war
retains a measure of legal significance.113 The Court’s reluctance to ascend from the
level of first principles to more detailed legal reasoning constitutes even a major
weakness of the Nuclear Weapons Opinion when it comes to the two ‘cardinal
principles’ governing the choice of means of combat. In her Dissenting Opinion,
Judge Higgins succinctly made the point:
It is not sufficient, to answer the question put to it, for the Court merely briefly to state the
requirements of the law of armed conflict (including humanitarian law) and then simply to
move to the conclusion that the threat or use of nuclear weapons is generally unlawful by
reference to these principles and norms . . . At no point in its Opinion does the Court engage
in the task that is surely at the heart of the question asked: the systematic application of the
110 See 2.2.2.3; quotation accompanying n 52.

112 C Dominicé, ‘The Question of the Law of Neutrality’ in Boisson de Chazournes and Sands
(n 11) 200, 203–4.

113 C Greenwood, ‘Scope of Application of Humanitarian Law’ in D Fleck (ed), Handbook of
International Humanitarian Law (Oxford: OUP, 2nd edn 2008) 45, 54 (marginal n 209);
C Dominicé, ‘The Question of the Law of Neutrality’ in Boisson de Chazournes and Sands (n 11)
200, 203.
relevant law to the use or threat of nuclear weapons. It reaches the conclusions without the
benefit of detailed analysis. An essential step in the judicial process—that of legal
reasoning—has been omitted.114
It is only natural for a court to begin its jurisprudence in a given field of law by
setting out a number of guiding principles. As Rosemary Abi-Saab observed in
1987, the Court may have had another idea in mind when it chose to place so much
emphasis on broad principles:
It is a question of political rather than legal strategy: by reducing the obligations of
humanitarian law to a certain number of general principles, it is easier to see whether
essentials have been violated and from the tactical point of view of scrutiny of application, it
becomes possible to look beyond the details of the texts and concentrate on what is clear and
fundamental.115
While this strategy worked well in Nicaragua, by the time of Nuclear Weapons, the
limits of such a strategy in a situation where it was fundamentally unclear and hotly
disputed which results the application of certain general principles to certain factual
scenarios would yield, had been revealed.
3.3 Some early judicial activism in Nicaragua and much more

subsequent judicial restraint in Nuclear Weapons
In Nicaragua, the Court displayed a remarkably activist attitude towards the judicial
development of the law of armed conflicts.116 The Court not only declared (rather
than substantiated)117 Common Articles 1 and 3 of the Geneva Conventions to
reflect customary international law, but it went even further and applied the duty to
ensure respect under Common Article 1 within a context of non-international
armed conflict and determined that Common Article 3 expressed a ‘minimum
yardstick’ applicable also in cases of international armed conflicts.118 The trans-
formation of Common Article 3 into a set of fundamental principles overarching all
armed conflicts is particularly noteworthy for, as Judge Simma would later observe
in his Separate Opinion to the DRC v Uganda Judgment,119 the Court thereby
anticipated the residual protective regime, which transcends the nationality limita-
tions under Article 4 of Geneva Convention IV, as established in 1977 by virtue of
Article 75 of Additional Protocol I.
114 Dissenting Opinion of Judge Higgins, Nuclear Weapons (n 4) para 9.

115 R Abi-Saab, ‘The “General Principles” of Humanitarian Law According to the International
Court of Justice’ (1987) 27 IRRC 367, 368.
116 See (ICJ Judge) S Schwebel (writing in his scholarly capacity), ‘The Roles of the Security
Council and the International Court of Justice in the Application of International Humanitarian Law’
(1994–5) 27 NYU J Intl L & Policy 731, who characterizes this part of the Nicaragua Judgment as an
‘essentially progressive contribution’.
117 On the brevity of the Court’s analysis, see T Meron, ‘The Geneva Conventions as Customary
Law’ (1987) 86 AJIL 348, 351–8.

118 See 2.2.1; 2.4.2.
119 Separate Opinion of Judge Simma, DRC v Uganda (n 6) paras 28–9.
The Court in Nuclear Weapons followed the path taken in Nicaragua when it
declared, without much supporting analysis, that ‘a great many treaty rules of
humanitarian law applicable in armed conflict’ embodied customary international
law.120 However, the Nuclear Weapons Court demonstrated a considerable measure
of judicial restraint in almost every other important respect. The judicial avoidance
of the issues of jus cogens and belligerent reprisals has already been mentioned.121
Furthermore, the Court adopted a conservative interpretation of Article 23(a) of
the 1907 Hague Regulations.122 More importantly, it adopted a ‘classic’ approach
when it denied the existence of a customary rule specifically prohibiting the use of
nuclear weapons. First, the Court stated that ‘the illegality of the use of certain
weapons as such does not result from an absence of authorization but, on the
contrary, is formulated in terms of prohibition’123 and, second, despite the opinio
juris of ‘a very large section of the international community’ to that effect, it felt
unable to identify more than a ‘nascent’ opinio juris in support of the existence of a
customary law prohibition in light of the dissent expressed by a minority of states
through their support for the ‘practice of deterrence’.124 Equally importantly, the
Court resisted the temptation to overcome the hurdle of this minority dissent to a
customary law prohibition by reference to the Martens Clause.125 Instead of seizing
the opportunity to recognize the ‘principles of humanity’ and ‘the dictates of public
conscience’ as a means to lower the threshold for the identification of a new
customary rule or even as an autonomous source of law, the Court used the
Martens Clause only as an additional argument in support of the applicability of
‘the principles and rules of humanitarian law to nuclear weapons’.126 It is interest-
ing to contrast the Court’s (non-)use of the Martens Clause in Nuclear Weapons
with the manner by which the Clause would subsequently be relied upon by the
ICTY in order to establish, despite the dissent expressed by a minority of states, the
binding nature also for non-state parties of the prohibition on reprisals against
civilians as contained in Article 51, paragraph 6 of Additional Protocol I for states
parties and non-state parties alike. The ICTY held as follows:
In the light of the way States and courts have implemented it, [the Martens Clause] clearly
shows that principles of international humanitarian law may emerge through a customary
process under the pressure of demands of humanity or the dictates of the public conscience,
even where State practice is scant or inconsistent.127
120 See 2.1.5; quotation accompanying n 34. 121 See, respectively, 3.1 and 3.3.
122 For a progressive interpretation see E David, ‘Le statut des armes nucléaires à la lumière de l’Avis
de la CIJ du 8 juillet 1996’ in Boisson de Chazournes and Sands (n 11) 210, 214–17.
124 See 2.3; quotation accompanying n 60.
125 See 2.1.5.
126 Nuclear Weapons (n 4) para 87; for a critique of this conservative approach to the Martens
Clause, see Dissenting Opinion of Judge Shahabuddeen, Nuclear Weapons (n 4) 405; see also
Dissenting Opinion of Judge Weeramantry, Nuclear Weapons (n 4) 486–91.
127 Prosecutor v Kupreškić et al ‘Judgment’ (Trial Chamber) (14 January 2000) IT-95-16-T (ICTY)
para 527; for a critique of this progressive use of the Martens Clause, see C Greenwood, ‘Belligerent
Reprisals in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ in
H Fischer, C Kreß and SR Lüder (eds), International and National Prosecution of Crimes Under
International Law (Berlin: Berlin Verlag, 2001) 539, 553–4.
The activism of the Nicaragua Court and the restraint of the Nuclear Weapons
Court may ultimately be susceptible to reconciliation to a greater extent than might
seem possible at first sight. Both decisions recognize the possibility of declaring
treaty provisions that enjoy widespread ratification as reflecting customary inter-
national law without the need to adduce a significant amount of further (in
particular, non-state-party) practice in support of the respective customary rule.
The Court felt entitled to so proceed—despite the famous ‘Baxter paradox’128—
because of the ‘intrinsic humanitarian character’129 of the treaty provisions con-
cerned and their intimate connection with ‘elementary considerations of human-
ity’,130 which is most apparent from the following passage in Nuclear Weapons:
It is undoubtedly because a great many rules of humanitarian law applicable in armed
conflict are so fundamental to the respect of the human person and ‘elementary consider-
ations of humanity’ as the Court put it in its Judgment of 9 April 1949 in the Corfu Channel
case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions have enjoyed a
broad accession. Further these fundamental rules are to be observed by all States whether or
not they have ratified the conventions that contain them, because they constitute intrans-
gressible principles of international customary law.131
The Court’s jurisprudence on the law of armed conflicts therefore lends powerful
support to the idea, at times captured by the concept of ‘modern custom’,132 that
customary international law of an intrinsically humanitarian nature may come into
existence without passing a most stringent ‘inductive’ test. Conversely, the Court’s
denial of a specific customary law prohibition on the use of nuclear weapons
resulted from a more traditional approach to the identification of a rule of
customary law. It may safely be suspected that the Court resorted to this more
cautious approach because it was acutely aware of the fact that the search for the
customary rule in question was characterized by a tension between a strong
humanitarian aspiration and important considerations of (an at least perceived)
military necessity,133 so that a more activist approach had subjected the Court to
the reproach of having acted as ‘judicial legislator’.134
128 RS Baxter, ‘Treaties and Custom’ [1970–I] 129 Recueil des Cours 27, 64 and 73: ‘as the number
of parties to a treaty increases, it becomes more difficult to demonstrate what is the state of customary
international law dehors the treaty . . . As the express acceptance of the treaty increases, the number of
States not parties whose practice is relevant diminishes. There will be less scope for the development of
international dehors the treaty’.
129 See 21.2; quotation accompanying n 22.
130 See 2.1.2.
131 Nuclear Weapons (n 4) para 79; Judge Shahabuddeen, in his Dissenting Opinion, Nuclear
Weapons (n 4) 380, specifies that the ‘roots’ of those principles ‘reach into the past of different
civilizations’; for a similar statement see Judge Weeramantry, Nuclear Weapons (n 4) 443, 478–82.
132 The concepts of ‘modern’ and ‘traditional custom’ are borrowed from AE Roberts, ‘Traditional
and Modern Approaches to Customary International Law: A Reconciliation’ (2001) 95 AJIL 757–91.
133 Cf the opening statement of Judge Schwebel in his Dissenting Opinion in Nuclear Weapons
(n 4) 311: ‘More than any case in the history of the Court, this proceeding presents a titanic tension
between State practice and legal principle.’
134 Cf the critique addressed by Judge Oda to the authors of the request for an Advisory Opinion,
Dissenting Opinion, Nuclear Weapons (n 4) 350, para 25: ‘It is to me quite clear that this request was
prepared and adopted with highly political motives which do not correspond to any genuine legal
mandate of a judicial institution.’
3.4 An occasional ambition for exhaustiveness and a significant

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

136 See 2.2.2.3.
137 Wall (n 5) para 120.
138 For a similar view see D Kretzmer, ‘The Advisory Opinion: The Light Treatment of Inter-
national Humanitarian Law’ (2005) 99 AJIL 88, 89–94.

139 See 2.2.2.3.
(within the meaning of Section II of the Hague Regulations) and the state of
belligerent occupation (within the meaning of Section III of the Hague Regula-
tions) are mutually exclusive. Israel, however, had argued that it had erected the
barrier in response to the eruption of non-state armed violence after the year 2000,
at which point it had reached the intensity and organization levels of an armed
conflict. The question before the Court was therefore whether it is legally conceiv-
able that a (non-international) armed conflict can take place within an occupied
territory. Unfortunately, the Court chose to ignore this legal issue,140 the signifi-
cance of which far exceeds that of the advisory proceedings before it.141 Further-
more, the Court’s view, that the erection of the barrier violated Articles 46 and 52
of the 1907 Hague Regulations, suffers from a superficial legal explanation.142 The
interpretation of both provisions concerned gives rise to important legal questions.
It is unclear, to mention only the two most important questions of relevance in the
Wall proceedings,143 whether Article 46 also covers the temporary requisition of
land, and it is open to doubt whether Article 52 covers immovable property. The
Court mentioned neither of those questions and through this ‘light treatment’ of
part of the subject matter it missed the opportunity to properly elucidate the
protection of property interests under the law of belligerent occupation.144 Finally,
the Wall Court could have been more exhaustive with respect to the state of
necessity. Instead of determining the inapplicability of this ground for precluding
the international wrongfulness within the law of armed conflict generally or at least
with respect to those (many) rules belonging to that body of law which in
themselves express a compromise between humanitarian aspirations and consid-
erations of military necessity, the Court very narrowly confined its rejection of
necessity to the facts of the case.145 While the Court did at least indicate its
reluctance to accept the state of necessity as a ground for excluding international
wrongfulness within the law of armed conflicts, it is regrettable that the opportunity
to clarify this important point of law authoritatively was missed. To have taken this
step would not have been exceedingly adventurous in light of the fact that the
commentary on Article 25 of the ILC Articles on State Responsibility clearly points
in the direction that necessity is (largely) unavailable as a ground for excluding
international wrongfulness in the law of armed conflicts.146
In comparison with the partial attempt at exhaustiveness in the Wall Opinion,
the selectivity of legal analysis in Nuclear Weapons in two important respects
becomes even more apparent. While the Wall Court devoted considerable efforts
to explaining the applicability of the Fourth Geneva Convention to the Palestinian
140 Kretzmer (n 138) 95–96.

141 For a detailed analysis, see the legal views voiced by experts in Ferraro (n 90) 109–44.
142 See 2.2.2.3.
143 For a full exposition of the relevant questions of interpretation, see Kretzmer (n 138) 96–8.
144 For a similar criticism, see Separate Opinion of Judge Higgins, Wall (n 5) paras 23–4; she uses
the words ‘light treatment’, para 25.

145 See 2.4.1.3.
146 For the position of the ILC on Art 25 of its Articles and the law of armed conflict, see
S Heathcote, ‘Necessity’ in J Crawford, A Pellet and S Olleson (eds), The Law of International
Responsibility (Oxford: OUP, 2010) 491, 498.
territories occupied by Israel, the Nuclear Weapons Court avoided the controversial
question whether Additional Protocol I applies to the use of nuclear weapons147
and instead relied on customary international law. The Court also explicitly
declined to decide on the customary nature of the prohibition on recourse to
reprisals under Article 51, paragraph 6 of Additional Protocol I. The Court’s
laconic statement, that it did not have to pronounce on the matter,148 offers no
justification for its silence and it is difficult not to agree with the Dissenting
Opinion of Judge Koroma that the non-pronouncement on the issue of belligerent
reprisals constituted an exercise of judicial restraint with respect to an issue of
crucial importance for the proceedings before the Court.149 It is impossible to avoid
the impression that the Court shied away from the issue because of the heated
controversy surrounding it.150
Moreover, in DRC v Uganda, the Court was disinclined to provide an exhaustive
treatment of the legal issues in one noteworthy respect. It treated, a (second)
counterclaim of the defendant state Uganda to the effect that a number of Ugandan
nationals had been subjected to inhuman treatment by Congolese armed forces151
as an attempt to exercise diplomatic protection on behalf of the individuals
concerned and rejected it on the basis that Uganda had failed to substantiate the
individual’s Ugandan nationality. As was demonstrated in the Separate Opinion of
Judge Simma, the Court, by confining its legal analysis to narrowly (and somewhat
carelessly) worded Ugandan argument in support of its claim, missed the oppor-
tunity to confirm that the protective scope of the law of armed conflicts, both under
Article 75 of Additional Protocol I and under the ‘fundamental general principles’
of the law of armed conflicts as identified in Nicaragua, extends to persons
irrespective of their nationality.152 Judge Simma referred explicitly to the claim
by the United States that certain ‘enemy unlawful combatants’ fall outside the
protective scope of the Geneva Convention in order to explain why he attached
great importance to dealing exhaustively with the Ugandan claim in question:
The reader may ask himself why I should give so much attention to an incident which
happened more than seven years ago, whose gravity must certainly pale beside the unspeak-
able atrocities committed in the war in the Congo. I will be very clear: I consider that legal
arguments clarifying that in situations like the one before us no gaps exist in the law that
147 See 2.3, text accompanying n 60; on this question see eg S Oeter, ‘Methods and Means of
Combat’ in Fleck (n 113) 119, 165–8 (marginal n 433).

148 See 2.4.
149 Dissenting Opinion of Judge Koroma, Nuclear Weapons (n 4) 574–5; for an unconvincing
attempt to justify the Court’s silence on the matter, see, Dissenting Opinion of Judge Shahabuddeen,
Nuclear Weapons (n 4) 389.
150 For the controversy within the Court, see, on the one hand, Dissenting Opinion of Judge
Schwebel, Nuclear Weapons (n 4) 328–9, and, on the other hand, Dissenting Opinion of
Judge Koroma, Nuclear Weapons (n 4) 574–5; for the controversy surrounding the more ‘audacious’
approach adopted by the ICTY in Kuprescic (see 3.3), see the quotation accompanying n 127 and the
reference therein.
151 For the specifics of the factual allegations, see DRC v Uganda (n 6) para 308.
152 For the details of the legal analysis, see Separate Opinion of Judge Simma, DRC v Uganda (n 6)
paras 24–9.
would deprive the affected persons of any legal protection, have, unfortunately, never been
as important as at present, in the face of certain deplorable developments.153
Prosecute or Extradite constitutes the most recent instance of the Court’s inclination
to avoid certain difficult issues pertaining to the law of armed conflicts. In that case,
the Court declined to deal with the question of whether Senegal had violated a
customary law duty to prosecute or extradite a non-national alleged to have
committed a war crime in a non-international armed conflict abroad,154 and
confined its jurisdiction to the aut iudicare aut dedere regime under the Torture
Convention. The reason given by the Court for its limited approach was the
absence of a dispute between the parties at the moment of the filing of Belgium’s
application.155 As demonstrated in the Separate Opinion of Judge Abraham, it was
not inevitable that the Court would adopt such a formalistic approach; had it been
genuinely willing to confront the substantive legal issue in question it could have
done so.156 Interestingly, Judge ad hoc Sur, who also rejected the Court’s narrow
approach to its jurisdiction, opined that the Court was unwilling to address the
substantive legal issue out of fear that it would have had to deny the crystallization
of the customary law duty as alleged by Belgium, thereby adversely interfering with
the development of the law.157
All in all, examples of an exhaustive treatment of the legal issues in the Wall
Opinion are scarce. This is probably best explained by the Court’s desire to lend its
stamp of approval to certain legal positions which enjoyed (and continue to enjoy)
widespread support within the international community. On quite a number of
other occasions the Court has been selective. In most instances, the Court would
appear to have been disinclined to enter into a thorny area of legal controversy;
perhaps at times it was also driven by a reluctance to interfere with a desirable legal
development. This explanation, however, does not apply to the Wall Court’s
restraint with respect to the state of necessity as a ground for excluding international
wrongfulness or to the DRC v Uganda Court’s unwillingness to deny the inex-
istence of legal black holes in the law of armed conflicts.
4. The Court as a political agent and as a diplomat
If one observes the developments from a distance, one might conclude that the
Court, in two instances in which the law of armed conflict formed the core of the
subject matter before it, in some way stepped out of the judicial role accorded to it.
On one occasion, the Court displayed certain features of a political agent, and on
153 DRC v Uganda (n 6) para 19.

154 On the question whether a customary duty in such cases exists, see Claus Kreß, ‘Reflections on
the Iudicare Limb of the Grave Breaches Regime’ (2009) 7 J Intl Criminal Justice 789, 794–5.
155 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (n 10) para 54.
156 Individual Opinion of Judge Abraham, Questions Relating to the Obligation to Prosecute or
Extradite (Belgium v Senegal) (n 10) paras 6–20.

157 Dissenting Opinion of Judge Sur, Questions Relating to the Obligation to Prosecute or Extradite
(Belgium v Senegal) (n 10) paras 17–18.

the other, one might be forgiven for thinking that the Court was composed of
diplomats rather than judges. I shall deal with these two cases in turn.
4.1 Wall and the pressure of political expectations

In Wall, the Court faced an expectation on the part of an overwhelming number of
political actors in the international community to seize the occasion to condemn
the ‘quasi-defendant’ State of Israel for its construction of the barrier in the occu-
pied territories. While it is readily admitted that Israel had contributed significantly
to this expectation through the construction of the barrier and much more through
its settlement policy in violation of Article 49, paragraph 6 of Geneva Convention
IV, the overwhelming expectation amongst international political actors may be
said to have left traces in the judicial quality of the Court’s Advisory Opinion.158
The Court’s tendency to be exhaustive in some parts and selective in others, as
highlighted above,159 worked largely to the detriment of Israel. The Court’s
struggle with the temptation to produce a politically palatable opinion is most
apparent, however, in the way it dealt with Israel’s central argument of military
necessity. While the Court (correctly) observed that ‘the applicable international
humanitarian law contains provisions enabling account to be taken of military
exigencies in certain circumstances’, the Court’s application of those provisions to
the facts consisted in the following single sentence:
However, on the material before it, the Court is not convinced that the destructions carried
out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were
rendered absolutely necessary by military operations.160
This provoked the following declaration by Judge Buergenthal:
It may well be, and I am prepared to assume it, that on a thorough analysis of all relevant
facts, a finding could well be made that some or even all segments of the wall being
constructed by Israel on the Occupied Palestinian Territory violate international law . . . But
to reach that conclusion with regard to the wall as a whole without having before it or
seeking to ascertain all relevant facts bearing directly on issues of Israel’s legitimate right to
self-defence, military necessity and security needs, given the repeated deadly terrorist attacks
in and upon Israel proper coming from the Occupied Palestinian Territory to which Israel
has been and continues to be subjected, cannot be justified as a matter of law.161
It is hard to disagree with Judge Buergenthal.162 In fact, the Court’s outright failure
genuinely to address the main Israeli argument came dangerously close to an
abdication of its judicial function at a central juncture of its Opinion, and the
Supreme Court of Israel was soon able to formulate a powerful challenge to the
158 For a stronger verdict, see M Pomerance, ‘The ICJ’s Advisory Jurisdiction and the Crumbling
Wall between the Political and the Judicial’ (2005) 99 AJIL 26, 40, writing that the Court provided ‘a
“judicial” cover for further political pressures’.
159 See 3.4.
160 Wall (n 5) para 135.
161 Declaration of Judge Buergenthal, Wall (n 5) para 3.
162 For the same view see Imseis (n 92) 111.
Wall Opinion’s authority by carefully setting out the ‘minimal factual basis’ for the
Court’s main legal conclusion.163 While the Court’s succumbing to the temptation
to make the decision politically palatable has, unsurprisingly, been conducive to the
Opinion’s positive reception in the international political arena, and while it has
not affected positive appraisals in international legal scholarship,164 it should not be
overlooked that the Court’s not allowing justice to ‘be seen to be done’165 came at a
price which may well outweigh any possible short-term political gain. The Wall
Court’s treatment of Israel’s military necessity claim is likely to have done a
disservice to the overall credibility of the international judicial function, as David
Kretzmer aptly observed:
International mechanisms for ensuring compliance with norms of [International Humani-
tarian Law] have always been extremely weak. It is essential that they be strengthened.
A major step in this direction has been taken with the establishment of the International
Criminal Court. Nevertheless, while this step has been welcomed by many, some experts
and a few states, foremost among which are the United States and Israel, remain sceptical.
Their scepticism is mainly grounded in the fear that the ICC’s decisions will be dictated by
politics rather than by law. In this atmosphere the credibility of international judicial organs
involved in assessing compliance with IHL becomes more important than ever. The
credibility rests largely on the professionalism of such organs and the soundness in law of
their opinions. When looked at from this point of view, an opinion whose findings ‘are not
legally well-founded’ is hard to applaud.166
4.2 An exercise in diplomacy in Nuclear Weapons

One need not be terribly audacious to assume that the formulation of every
reasonably difficult decision the Court has had to render has involved an element
of judicial diplomacy. The ‘titanic tension between State practice and legal
principle’167 which the Court faced in Nuclear Weapons probably best explains
why important parts of the Opinion appear to be more an exercise in diplomacy
than anything else. Already the selectivity of the Court’s legal analysis, as high-
lighted above,168 can be called diplomatic as the Court thereby avoided two
controversial issues of great political sensitivity. It is above all the Court’s famous
non liquet, however, that makes the Nuclear Weapons Court appear like a group of
diplomats trying to overcome a seemingly irreconcilable divergence of opinion
among them. It suffices to read with care the following single sentence to appreciate
how desperately those judges, who were in favour of categorically outlawing the use
of nuclear weapons, must have struggled over every single word to reduce the
significance of the non liquet as much as possible:
163 Mara’abe et al v The Prime Minister of Israel et al (Supreme Court Sitting as the High Court of
Justice) [2005] HCJ 7957/04 (<http://elyon1.court.gov.il/Files_ENG/04/570/079/A14/04079570.

A14.HTM> (accessed 17 May 2013)) paras 61–72, and in particular, para 64.
164 For a prominent example see Richard A Falk, ‘Toward Authoritativeness: The ICJ Ruling on
Israel’s Security Wall’ (2005) 99 AJIL 42.

165 Imseis (n 92) 117–18 (with the precise reference to the famous axiom articulated by Lord
Justice Hewart, 117 [n 95]).

166 Kretzmer (n 138) 102. 167 Judge Schwebel (n 133). 168 See 3.4.
Nevertheless, the Court considers that it does not have sufficient elements to enable it to
conclude with certainty that the use of nuclear weapons would necessarily be at variance with
the principles and rules of law applicable in armed conflict in any circumstance. [emphasis
added]169
If one reads together the crucial paragraphs of the Court’s reasons170 and its
somewhat differently worded summary in the dispositif,171 one cannot but form
the impression that the judges adopted precisely that strategy to which diplomats
resort at moments of crisis: the search for constructive ambiguity.172 As though the
judges wished to further confirm precisely this impression, they all 173 added declar-
ations or separate or dissenting opinions, which were striking in the way they
resembled vastly divergent ‘interpretive statements’ made by state representatives
immediately after the adoption of a constructively ambiguous legal document. The
final element in this demonstration of the fine art of judicial diplomacy as applied
by the Nuclear Weapons Court consisted of the making of the further concession to
those in favour of a categorical statement of illegality that there is ‘an obligation to
pursue in good faith and bring to a conclusion negotiations leading to nuclear
disarmament in all its aspects under strict and effective international control’.174
The need to make this concession to finalize the ‘judicial compromise package’
must have been so imperative that the limitation posed by the question put to the
Court was relegated to a consideration of secondary importance.175
The question of whether the Nuclear Weapons Court’s exercise in diplomacy was
a success or not from the perspective of legal policy is almost as difficult to answer as
the question that was before the Court. An author of no lesser eminence than the
late Thomas Franck has given an affirmative answer:
The result, uncannily, was almost universally welcomed. It tended to be welcomed as
Solomonic by governments with and without nuclear weapons and by NGOs that had
sparked the request.176
Be that as it may, from a legal perspective there is also room for a more critical
assessment of Part E of paragraph 105 of the Court’s Opinion, which, because of its
importance, shall be reproduced once again:
It follows from the above-mentioned requirements that the 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.

170 Nuclear Weapons (n 4) paras 94–7; see 2.3.
171 Nuclear Weapons (n 4) para 105 sub E; see 2.3.
172 Similarly TF Franck, ‘Fairness and the General Assembly Advisory Opinion’ in Boisson de
Chazournes and Sands (n 11) 514–15: ‘a text that is more diplomatic than determinate’.
173 Above, text accompanying n 11 and the reference therein.
174 Nuclear Weapons (n 4) para 105 sub F.
175 The Court was criticized by Judge Guillaume for having decided ultra petita: Separate Opinion,
Nuclear Weapons (n 4) para 1, and by Judge Schwebel, Dissenting Opinion, Nuclear Weapons (n 4)
329.
176 Franck (n 172) 519.
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.177
It is true that this formulation, if read within the context of the Opinion as a whole,
leaves room for an interpretatio benevolentiae, according to which the Court’s
conclusion would not run counter to the principle of complete separation between
the jus in bello and the jus contra bellum. Christopher Greenwood has offered such
an interpretation:
The Court . . . left open the possibility that the use of nuclear weapons might, in some
circumstances, be compatible with the jus in bello. To be lawful, it would, of course, also
have to comply with the requirements of the jus ad bellum, i.e. of the right of self-defence.
The two requirements are, however, cumulative, not alternative. There is, therefore, no need
to read the second part of that paragraph as setting up the jus ad bellum in opposition to the
jus in bello.178
Attractive as this interpretation is, it does not flow naturally from the Court’s
formulation;179 furthermore, as the various individual opinions attached to the
main Opinion reveal, it does not represent the shared understanding of those
judges. This is most evident from the following passage in Judge Fleischhauer’s
Separate Opinion, which he formulated in support of Part E of paragraph 105:
The principles and rules of the humanitarian law and the other principles of law applicable
in armed conflict, such as the principle of neutrality on the one side and the inherent right
of self-defence on the other, which are through the very existence of the nuclear weapon in
sharp opposition to each other, are all principles and rules of law. None of these principles
and rules is above the law, they are of equal rank in law and they can be altered by law.
They are justiciable. Yet international law has so far not developed—neither in conven-
tional nor in customary law—a norm on how these principles can be reconciled in the face
of the nuclear weapon . . . there is no rule giving prevalence of one over the other of these
principles and rules.180
If read in that sense, the Court’s non liquet, as Judge Higgins rightly stated, ‘goes
beyond anything that was claimed by the nuclear-weapon states appearing before
the Court, who fully accepted that any lawful threat or use of nuclear weapons
would have to comply with both the jus ad bellum and the jus in bello’,181 and it
raises, as Christopher Greenwood rightly observed, ‘the spectre of a return to
theories of . . . the maxim embodied in the German proverb that Kriegsraison geht
vor Kriegsmanier (“necessity in war overrules the manner of warfare”)’. By providing
177 Nuclear Weapons (n 4) para 105 sub E; for the virtually identical formulation in the reasons, see
263, para 97.

178 C Greenwood, ‘Jus ad bellum and Jus in Bello in the Nuclear Weapons Advisory Opinion’ in
Boisson de Chazournes and Sands (n 11) 247, 264.

179 For the same view, see Dissenting Opinion of Judge Higgins, Nuclear Weapons (n 4)
para 29.
180 Separate Opinion of Judge Fleischhauer, Nuclear Weapons (n 4) 308.
181 Judge Higgins (n 179).
room for such an interpretation, the formulation of the non liquet carries with it an
element of destructive ambiguity. This makes the encounter with the vanishing
point of the law in Nuclear Weapons a deeply ambiguous moment in the Court’s
history.
5. Conclusion: on the Court’s contribution to the development

of the law of armed conflicts
It is probably fair to say that, for a variety of reasons, the Court has not contributed
decisively to the settlement of inter-state disputes through its jurisprudence on the
law of armed conflicts. In Nicaragua and, albeit to a lesser extent, in DRC v Uganda,
armed conflict issues were of secondary importance compared to questions
regarding the jus contra bellum. In Nuclear Weapons there was no concrete dispute
awaiting judicial settlement, and in Wall the underlying dispute was of such
complexity that it is difficult to think of any opinion that could have contributed
in any significant manner to its resolution.182
The question of whether and in what way the Court has contributed to the
development of the law of armed conflicts requires a nuanced answer. In Nicaragua,
the Court successfully, if somewhat belatedly, lent its support to the transposition
of the classic ‘laws and customs of war’ into the modern law of armed conflicts. In
the same Judgment, the Court began to entrench modern treaty law on the law of
armed conflicts, as established by the 1949 Geneva Conventions, into customary
international law. In both respects, Nicaragua was confirmed by Nuclear Weapons
and the latter Opinion carried the ‘transfer and entrenchment operation’ further
into the realm of the law on the conduct of hostilities.
In both decisions, the Court made it clear that it did not consider the transpos-
ition of the classic laws of war into the Charter era as a largely mechanical
transplant. Rather, it strongly emphasized that the substitution of the concept
‘international humanitarian law’ for that of ‘laws and customs of war’ was not only a
terminological matter, but also signified the liberation of the law of armed conflicts
from the normative limitations flowing from the traditional idea of inter-state
reciprocity as expressed by traditional concepts such as the si omnes clause and
belligerent reprisals. By connecting the law of armed conflicts with ‘elementary
considerations of humanity’, by declaring an ‘intrinsically humanitarian character
that permeates the entire law of armed conflict’,183 and by trying to establish a
relationship of complementarity—rather than exclusion—with international
human rights law,184 the Court reconceptualized the traditional ‘laws and customs
182 Somewhat ironically, the one case that depended heavily on a question of the law of armed
conflict, in which the Court’s influence on the settlement of a dispute may have been most significant,
did not come to judgment on the merits: Trial of Pakistani Prisoners of War (Pakistan v India) (Order)
[1973] ICJ Rep 347; for the subject matter, see [1973] ICJ Pleadings, 3–7. See, however, Schwebel
(n 116) 736–7.
183 See 2.1.2. 184 See 2.1.6.
of war’, the codification of which was driven to a significant extent by a utilitarian
calculation of state interest, as an integral humanitarian legal regime designed,
above all, to ensure respect for the human person.185 In so doing, and in strength-
ening the compliance pull through judicial recognition of the erga omnes character
of the bulk of the rules on armed conflicts and even a duty on the part of third states
to react to violations of that body of law,186 the Court has made a powerful
contribution to what Theodor Meron, in a well-known article, has called the
‘Humanization of Humanitarian Law’.187
At the same time, it must be added that the Court’s reluctance to recognize the
jus cogens character of the core of the law of armed conflicts,188 its caution in respect
of the idea of a right to reparation for individual victims of war crimes,189 and its
refusal to touch upon the customary nature of the prohibition to have recourse to
belligerent reprisals against civilians as contained in Article 51, paragraph 6 of
Additional Protocol I,190 demonstrate that the Court is prudent enough not to fully
realize, by way of deductive reasoning, the ‘progressive potential’ which the Court’s
reconceptualization of the laws of war in a humanitarian spirit entails. Despite its
clearly articulated humanitarian impetus, the Court, all in all, has been significantly
less adventurous than the ICTY in its stormy early years and it is unlikely that
the Court would have found it easy to go as far as the Yugoslavia Tribunal and state
that ‘[a] State-sovereignty-oriented approach has been gradually supplanted by a
human-being-approach’.191
While the Court has successfully transposed the laws of war into our times, while
it has powerfully reconceptualized this body of law in a humanitarian spirit, and
while it has firmly entrenched the core part of the relevant rules in customary
international law, the Court’s contribution to the detailed elaboration of this field
of law remains limited. This is, of course, due primarily to the fact that the
occasions on which the Court has had the opportunity to pronounce on questions
of the law of armed conflicts have been fairly limited in number. However, and as
was explained in some detail above,192 the Court has not fully seized its relatively
few opportunities. This is particularly true of the Wall Court’s refusal to engage
genuinely with the various legal rules on the protection of property interests in
armed conflicts. For the time being, it seems fair to say that it is above all the
International Committee of the Red Cross, and far less the Court, that has helped
in the systematization and more precise articulation of certain areas of the law of
armed conflicts.193
185 For an earlier assessment in this direction see J Gardam, ‘The Contribution of the International
Court of Justice to International Humanitarian Law’ (2001) 14 Leiden JIL 349, 352.
186 See 2.1.3; 2.4.1.5.
187 T Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 AJIL 239.
188 See 2.1.3; 3.1.
189 See 2.4.1.4; 3.1.
190 See 2.4.1.3; 3.d.
191 Prosecutor v Tadić (n 100) para 97.
192 See 3.4.
193 See eg Ferraro (n 90), which has been referred to repeatedly in this chapter, and see, probably
most prominently, N Melzer (ed), Interpretative Guidance on the Notion of Direct Participation in
When it comes to the progressive development of the law of armed conflicts, it is

again not the Court, but the ICTY and perhaps the international criminal courts
more generally,194 that must be mentioned in the first place.195 The ICTY, in its
seminal 1995 Tadić Decision on Jurisdiction, declared the crystallization of a large
body of customary law rules pertaining to the law of non-international armed
conflicts and extending to the conduct of hostilities. Moreover, the various inter-
national criminal courts have subsequently developed an impressive body of
jurisprudence on the modern law of war crimes committed in international and
non-international armed conflicts. The Court was at best marginally concerned
with those two perhaps most important broader developments in the law of armed
conflicts. Certain passages of the Judgment in the Arrest Warrant case even read as
though the Court had felt the need to cool the temperature somewhat to prevent
the stormy renaissance of international criminal justice getting overheated.196
Finally, the Court has had only few occasions to confront the most recent
challenges of the law of armed conflicts. The Wall Court’s treatment of the
exploitation of natural resources in an occupied territory197 constitutes one such
case, and another is the same Court’s subtle allusion to the problem of ‘transforma-
tive occupation’198 when referring to international human rights law within the
context of Article 43 of the 1907 Hague Regulations.199 Major challenges,
though,200 such as the ‘privatization’ of armed violence through the use of private
security companies201 and cyber operations,202 have not yet reached the Court.
At some point or another, the Court will have to address the point powerfully
made by David Kretzmer in a recent article203 that the increasing resort by states to
Hostilities under International Humanitarian Law (Geneva: International Committee of the Red Cross,
2009); see also the International Committee of the Red Cross’s Customary Law Study: J-M Henckaerts
and L Doswald-Beck (eds), Customary International Law. Volume I: Rules (Cambridge: CUP, 2005);
furthermore, certain less authoritative groups of international law experts, such as those convened by
the International Institute of Humanitarian Law to draw up L Doswald-Beck (ed), San Remo Manual
on International Law Applicable to Armed Conflicts at Sea (Cambridge: CUP, 1995), deserve to be
mentioned here.
194 For a detailed analysis see S Sivakumaran, The Law of Non-International Armed Conflict
(Oxford: OUP, 2012) 54–61; S Darcy and J Powderly (eds), Judicial Creativity at the International
Criminal Tribunals (Oxford: OUP, 2011).
195 Here again mention must be made of the International Committee of the Red Cross.
196 In that respect, reference is perhaps primarily to be made to the Court’s obiter dictum on
immunity ratione materiae before foreign criminal courts (see 2.4.2; quotation accompanying n 84).
197 See 2.2.2.3; citation accompanying n 55; for a detailed analysis see L van den Herik and
D Dam-de Jong, ‘Revitalizing the Antique War Crime of Pillage: The Potential and Pitfalls of Using
International Criminal Law to Address Illegal Resource Exploitation During Armed Conflict’ [2011]
CLF 237.
198 See eg Ferraro (n 90) 67–72.
200 For a useful overview, see the International Committee of the Red Cross’s Report International
Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 31/C/11/5.1.2, October 2011.
201 LA Dickinson, Outsourcing War and Peace: Preserving Public Values in a World of Privatized
Foreign Affairs (New Haven and London: YUP, 2011).

202 M Schmitt (ed), Talinn Manual on the International Law Applicable to Cyber Warfare
(Cambridge: CUP, 2013) 75–256.

203 D Kretzmer, ‘Rethinking the Application of International Humanitarian Law in Non-
International Armed Conflict’ (2009) 42 Israel L Rev 1, 8.

the much broader targeting and detention powers available to them under the ‘law
of armed conflicts paradigm’ to address highly destructive (transnational) terrorist
threats204 sheds important light on the fact that the concept of ‘international
humanitarian law’ covers only one side of the coin of the ‘law of armed conflicts’
so that, despite the undisputable ‘humanization’ of the law of armed conflicts in
the post-World War II era, an important question mark must be placed over the
uncritical way in which the term ‘international humanitarian law’ has come to be
used not only by the Court, but also by most political actors and many inter-
national lawyers.205
204 Claus Kreß, ‘Some Reflections on the International Legal Framework Governing Transnational
Armed Conflict’ [2010] JCSL 245.

205 See, however, Schwebel (n 116) 732: ‘Today we speak of international humanitarian law. In less
euphemistic days, we spoke of the law of war’ (emphasis added).

PART VII
C O MMUNITY CON CERN S
13
Human Rights Before the International
Court of Justice: Community Interest
Coming to Life?
Bruno Simma
1. Introduction
The following contribution is devoted to a specific aspect of a topic which has

become a sort of Leitmotiv in my own more recent academic work: that of the
impact of human rights on the development of international law.
To start with a personal remark: I made my first acquaintance with the integra-
tion of human rights in more traditional international law in a slightly bizarre way,
as it were. Twenty-seven years ago, around the time when ECOSOC decided to get
serious about monitoring the implementation of the International Covenant on
Economic, Social and Cultural Rights of 1966 and to replace a body of govern-
mental experts assigned to this task by a Committee of truly independent experts,
the German Foreign Office chose me as a candidate for membership in this new
institution, apparently because the diplomats in charge of human rights in Bonn at
that time sympathized with the specific angle I had pursued in a few publications of
mine on the subject of human rights. These early writings were devoted to the topic
of the enforcement of international human rights obligations by (non-forcible)
countermeasures—an aspect in line with the spirit of the time, but demonstrating
a rather particular approach to ‘systemic integration’ indeed.1 After having been
elected to the new monitoring body, the Committee on Economic, Social and
Cultural Rights, I served on it from 1987 to 1996, that is, for ten years trying to
cope with the daunting task of devising a legal hold on this most doctrinally
evasive category of human rights and developing the reporting procedure into a
more meaningful exercise. In the context of the present chapter, what I remember
is that, in the company of my fellow Committee members, an assortment of
1 See eg B Simma, ‘Zur bilateralen Durchsetzung vertraglich verankerter Menschenrechte. Aktivle-
gitimation und zulässige Mittel nach allgemeinem Völkerrecht’ in C Schreuer (ed), Autorität und
internationale Ordnung. Aufsätze zum Völkerrecht (Berlin: Duncker & Humblot, 1979) 129.
eighteen ‘droits de l’hommistes’2 representing a colourful variety of backgrounds and
expertise, I always felt ‘on guard’, so to speak, being ‘in charge of international law’,
being the international law generalist with the task of frequently reminding my
colleagues that what they were doing they were doing on the basis provided by ‘my’
international law, and had to remain within the law’s state-of-the-art boundaries.
Following this exposure to the workings of the UN human rights machinery,
I spent six years as a member of the UN International Law Commission (ILC). And
while before, in the UN’s human rights community, I had regarded it as my task to
function like the Committee’s ‘in-house’ (generalist international) lawyer, in the
ILC, of which at the time I was the only member with a UN human rights ‘past’,
I soon discovered that I now felt the other way round, namely having to protect the
specificity and integrity of ‘my’ human rights from attempts by fellow ILC
members, cold-blooded (former or serving) legal advisors or even politicians, to
have these rights turned into ‘bureaucratic small-change’, to use Philip Allott’s
words.3 To illustrate how I saw my new task, I engaged in a serious—and successful—
effort to defeat an attempt to include the human rights topic of non-discrimination,
very much in fashion at the time, in the agenda of future work of the Commission
in order to save it from being hijacked by what I regarded as these rights’ potentially
‘false friends’, so to speak. While I plead with the reader to take this observation
with a pinch of salt, what remains true is that during my time in the ILC, the
reflexes acquired in my ten years of human rights treaty monitoring kept me
constantly on guard and sensitive vis-à-vis the appropriation of human rights by
the international law ‘mainstream’.
Against this background, it will come as no surprise that during my nine years on
the International Court of Justice (ICJ, or ‘the Court’), I studied the treatment of
human rights by the Hague Court, the specifically ‘judicial’ interpretation and
application of these rights by what has been called ‘the gate-keeper and guardian’ of
general international law,4 as compared to the ‘softer’, more political and policy-
inspired handling of human rights in the UN Charter-based system, with particular
attention, with regard both to its development over time and to the current state of
the matter.5 Also, in a large part of the existing literature on the topic, what I found
2 A Pellet, ‘Droits de l’hommisme et droit international’, Gilberto Amado Lecture, 18 July 2000,
United Nations (Geneva); English translation: ‘Human Rightism and International Law’ (2000)
X Italian Ybk Intl L 3.
3 P Allott, Eunomia: New Order for a New World (Oxford: OUP, 1990) 288.
4 With regard to a different branch of international law by JE Vinuales, ‘The Contribution of the
International Court of Justice to the Development of International Environmental Law’ (2008) 32

Fordham Intl LJ 232.
5 For the most comprehensive academic treatment of the topic see G Zyberi, The Humanitarian
Face of the International Court of Justice (Antwerp: Intersentia, 2008; with a bibliography covering the
literature up to and including 2007); since then, R Higgins, ‘The International Court of Justice and
Human Rights’ in R Higgins, Themes and Theories: Selected Essays, Speeches, and Writings in Inter-
national Law (Oxford: OUP, 2009), vol 1, 639; J Grimheden, ‘The International Court of Justice:
Monitoring Human Rights’ in G Alfredsson et al (eds), International Human Rights Monitoring
Mechanisms: Essays in Honour of Jakob Th Moeller (Dordrecht: Martinus Nijhoff, 2009) 249;
S Sivakumaran, ‘The International Court of Justice and Human Rights’ in S Joseph and A McBeth
(eds), Research Handbook on International Human Rights Law (Cheltenham: Edward Elgar, 2010) 299.
International Human Rights Law 303
was a certain positive stereotype treatment, rather uncritical praise for the
achievements of the ICJ as a protector of human rights. Thus, a reality check free
of undue deference to the Court appeared in place.
To assess the linkage of the Court and human rights is to ask two questions: first,
has the development of international human rights law had an impact on the
jurisprudence of the Court? Secondly, and vice versa, has the jurisprudence of the
Court contributed to this development; and if yes, how? In the following, I will
attempt to provide some tentative (and necessarily brief ) answers to these ques-
tions. In so doing, I will distinguish two phases in the engagement of the Court
with human rights matters: a—long—first phase marked by a certain restraint on
the part of the Court, and the states parties to its Statute, with regard to such
engagement, and following this a second phase marked by recent developments
indicating a greater degree of readiness of the Court to decide human rights
questions in a direct and straightforward way.
2. The first phase: hesitation and restraint

2.1 The background
After the rebirth of the Hague Court in 1945/46, expectations of observers and
potential ‘clients’ of the Court as to the contribution of what now had become the
principal judicial organ of the United Nations to the realization of the UN’s human
rights agenda appear to have been rather low.6 This was probably due to patterns
that had become discernible in the jurisprudence of the ICJ’s predecessor, the
Permanent Court of International Justice, touching upon issues that we would now
regard at least as human rights-related. While this case law had displayed some
remarkably progressive ‘sparks’ in several advisory opinions rendered on the basis
of the League of Nations’ system of protection of minority (group) rights, the
Permanent Court’s jurisprudence in contentious cases can only be described as
having been pronouncedly deferential to national sovereignty; limitations of sover-
eignty were not to be presumed, treaty provisions stipulating that such limitations
were to be interpreted restrictively, the Lotus principle dominated, and so forth.
As against such foreboding, the new Court’s case law dealing with, or at least
somehow touching upon, human rights issues in specific ways over time turned out
to be richer, and certainly less negative, than expected. Of course, opportunities for
the Court to devote itself to human rights questions will depend almost totally on
the nature of the cases brought to The Hague. It was natural, therefore, that case
law with human rights elements would develop in tandem with the widening and
6 Philip Alston brought to the attention of the author a Report of the Australian delegation to the
Second Session of the UN Commission on Human Rights in December 1947, according to which in
the course of the discussion on implementation of the future ‘Bill of Human Rights’, the United
Kingdom proposed to invest the ICJ with the power to give advisory opinions on human rights which
could then be submitted for action to the General Assembly. The report adds: ‘Subsequent discussion
demolished this view.’ (Document on file with the author.)
thickening of international human rights as a growth industry within post-World
War II international law. However, just as the development of human rights as a
body of law and institutions at the global (UN) level took several decades to develop
beyond standard-setting and extend to—still very limited—implementation, the
role of the Court as an interpreter and applier of human rights law unfolded
gradually and in rather meandering ways.
Thus, in what may be described as a first phase in the engagement of the ICJ
with human rights, while we find a certain number of cases in which human rights
arguments played some role, sometimes in circumstances in which one would not
expect human rights issues to arise at all, the actual purport of human rights in these
cases as well as the contribution of the Court’s jurisprudence to their development,
was rather limited. If one were to attempt to run through the relevant judgments
and advisory opinions rendered during this first phase and, in doing so, group the
case law according to the relevance of human rights considerations, three clusters
might be distinguished (with some decisions falling into more than one of them).
2.2 Three groups of relevant cases

In a first group of decisions of the Court, human rights considerations appeared in
more or less incidental ways; the legal reasoning in the cases concerned essentially
turned on matters which had nothing to do with human rights, or in regard to
which human rights merely played a subordinate role and were thus mentioned
more or less obiter, not necessarily in an entirely positive, fully welcoming sense.
Corfu Channel (1949), Barcelona Traction (1970), Tehran Hostages (1980), and the
Vienna Consular Convention cases, LaGrand (2001) and Avena (2004), belong to
this group. The first-mentioned case arose in the context of naval warfare and thus
touched upon international jus in bello and humanitarian law rather than human
rights law in the strict doctrinal sense. In dealing with the obligations of coastal
states in maritime zones under their jurisdiction, the Court strengthened its
confirmation of a duty on the part of these states to clear their territorial sea of
mines with a remarkably humanitarian appeal, by referring to ‘obligations . . . based
on . . . certain general and well-recognized principles’, among them ‘elementary
considerations of humanity’.7 In its Barcelona Traction Judgment, the Court, at
the outset of its discussion regarding the conditions of diplomatic protection of
shareholders, introduced out of the blue a distinction between bilateralist obliga-
tions arising in that area and a new category of obligations erga omnes, among which
it counted the prohibition of genocide and obligations deriving from ‘the principles
and rules concerning the basic rights of the human person’, before returning to the
international legal aspects of company law.8 In the Tehran Hostages case, the ICJ
condemned the treatment of the US diplomatic and consular personnel detained in
Iran as incompatible, inter alia, ‘with the fundamental principles enunciated in the
7 Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4, 22.

[1970] ICJ Rep 3, 32, 47.
Universal Declaration of Human Rights’.9 The LaGrand and Avena cases will be
considered in a later, more specific, context as showing that there were instances in
which the Court actually avoided taking up human rights questions, even though
such a categorization of matters in dispute was offered to it on a silver plate, as it
were. What the before-mentioned cases belonging to this first group have in
common is that the Court referred to human rights in a context distinct from
that branch of the law, with these references lighting up the sky, as it were, for a
short moment before the Court returned to more mundane matters.
The situation is similar in a second cluster of cases in which human rights
considerations occupied somewhat more space, but were still more in the nature
of an occasion for the Court, a trigger, to engage in discussion of matters different
from human rights, even though the subjects might somehow be linked technically.
The Court’s Advisory Opinion on Reservations to the Genocide Convention (1951) is
probably the best example.10 This Opinion, while hinging on a treaty that could be
called the first human rights instrument created within the United Nations, yielded
relatively little with regard to the specific legal features of the Genocide Conven-
tion; instead in a formidable exercise of judicial law-making it crafted major parts of
what subsequently became the contemporary regime of reservations to multilateral
treaties in general. Arguably, a similar triggering, but ultimately ancillary, role was
played by human rights in the Court’s Advisory Opinions on the Interpretation of
Peace Treaties (1950), focusing on the operability of treaty provisions on dispute
settlement;11 in the three Advisory Opinions rendered on certain technical aspects
of the supervision by the UN of the international status of South West Africa (1950,
1955, 1956);12 in the 1986 Nicaragua Judgment’s refusal to accept the use of force
on the part of the United States as an appropriate method to ensure respect for
human rights;13 as well as in the two Advisory Opinions by which the Court
confirmed the immunities of UN Special Rapporteurs in the field of human rights
by recognizing their status as UN experts on mission and thus strengthened the
UN’s human rights machinery, that is, in the Mazilu case (1989)14 and ten years
later again in Cumaraswamy (1999).15
9 United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, para 91.
11 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase) (Advisory
Opinion) [1950] ICJ Rep 65; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania
(Second Phase) (Advisory Opinion)[1950] ICJ Rep 221.
12 International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128; Voting
(Advisory Opinion) [1955] ICJ Rep 67; Admissibility of Hearings by the Committee on South West Africa
ICJ Rep 14, para 268.

14 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the
United Nations (Advisory Opinion) [1989] ICJ Rep 177.

15 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on
Human Rights (Advisory Opinion) [1999] ICJ Rep 62.

A third group consists of a number of instances in which the Court developed
the right of self-determination of peoples.16 These are mentioned here because in
the human rights doctrine developed and pursued by the United Nations for several
decades, the realization of self-determination in the context of decolonization was
regarded as the conditio sine qua non for the enjoyment of individual human rights.
Thus, in a number of decisions and Advisory Opinions on South West Africa, the
Court dealt with this right in regard to some more technical questions on inter-
national supervision.17 At the same time, it also drew certain substantive conclu-
sions, carrying both positive and decidedly negative messages for the anti-Apartheid
and wider human rights community. While in its 1971 Namibia Opinion the
Court confirmed the legality of the termination of South Africa’s Mandate by the
UN General Assembly in 1966 and set up legal defences against the plundering of
the natural resources of South West Africa (now Namibia),18 the preceding final
(1966) Judgment in the South West Africa cases had shocked liberal observers and
the overwhelming community of states by its denial of legal standing to the two
African states which had brought the issue of Apartheid in South West Africa before
the Court.19 These cases were followed by the Advisory Opinion on the Western
Sahara,20 which met with general acclaim, quite contrary to the reception of the
ICJ’s refusal, twenty years later, to engage with the merits of the East Timor case
despite paying lip service to the right of self-determination as an entitlement erga
omnes.21 The most recent judicial pronouncements on the right to self-determin-
ation are to be found in the Advisory Opinions on the Wall of 200422 and on the
Kosovo Declaration of Independence of 2010,23 yielding very different results in the
eyes of the protagonists of a progressive reading of this right: confirming it in no
unclear terms in favour of the Palestinian population of the West Bank, while
beating around the bush and keeping self-determination essentially under a tight lid
in the second-mentioned instance.
2.3 In particular: the consular notification cases

What might deserve to be mentioned in concluding this short tour d’horizon of the
jurisprudence of the Court turning on or otherwise somehow technically connected
with human rights, are the two Judgments in which the United States was found to
16 For further details on this point see Gentian Zyberi’s contribution to this volume at Chapter 14.
17 Cf the Advisory Opinions referred to in n 12; 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) [1971] ICJ Rep 16.
18 See the 1971 Namibia Opinion (n 17).
19 Cf South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966]
ICJ Rep 6.
20 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12.
21 East Timor (Portugal v Australia) [1995] ICJ Rep 90.

Kosovo (Advisory Opinion) [2010] ICJ Rep 403.

be in breach of the obligation deriving from the 1963 Vienna Convention

on Consular Relations to inform detained foreign nationals of their right to seek
consular assistance from their home country: LaGrand (2001) and Avena (2004).24
In the LaGrand case, Germany had argued that the entitlement of a foreigner to be
informed of this right without delay under Article 36, paragraph 1 of the Consular
Convention was not only an individual right but had over time assumed the
character of a human right proper, akin to an international guarantee of a fair
trial. Though admittedly progressive, this position reflected the approach previ-
ously adopted by the UN General Assembly in the 1980s, and, moreover, that of
the Inter-American Court of Human Rights in an Advisory Opinion on the
question of consular protection rendered in 1999 upon the request of Latin
American countries, above all Mexico, which was most affected by the practical
application of the death penalty in the United States. In its LaGrand Judgment, the
Hague Court avoided pronouncing on the issue (and thus taking any stand on a
position taken by another international court but remaining controversial between
the parties to the case before it). Having found that the rights accorded by
paragraphs 1 and 2 of Article 36 of the Consular Convention to the LaGrand
brothers and violated by the United States had the character of individual rights,
the ICJ declared that it did not need to examine Germany’s additional argument
claiming human rights status for these entitlements.25 This diffidence did not deter
Mexico, in the Avena case brought in 2003, from reintroducing the German
argument with even greater emphasis and attaching farther-reaching consequences
to it, by claiming that the Article 36 right ‘is a fundamental human right that
constitutes part of due process in criminal proceedings . . . [T]his right as such is so
fundamental that its infringement will ipso facto produce the effect of vitiating the
entire process of the criminal proceedings conducted in violation of this fundamen-
tal right.’26 The Court first replied, in confirmation of LaGrand, that whether or
not the Vienna Convention rights were human rights was a matter it did not have
to decide, and then went on to observe that ‘neither the text nor the object and
purpose of the Convention, nor any indication in the travaux préparatoires, support
the conclusion that Mexico draws from its contention in this regard’.27
It should have become clear why the LaGrand and Avena Judgments are
included, despite their being so recent, among the case law belonging to a
phasemarked by a certain degree of hesitation and constraint on the part of the
ICJ vis-à-vis human rights.28 The decision was rendered at a time when the Hague
Court, as a matter of general policy avoided, to the extent possible, supporting its
24 LaGrand (Germany v USA) [2001] ICJ Rep 466; Avena and Other Mexican Nationals (Mexico v
USA) [2004] ICJ Rep 12. In Ahmadou Sadio Diallo (Guinea v DRC) (Merits) [2010] ICJ Rep 639, the
Court found the DRC also in breach of Art 36(1)(b) of the Vienna Consular Convention; paras 90–7
of the Judgment.
25 LaGrand (n 24) para 78.
26 Avena (n 24) para 124.
27 Avena (n 24) para 124.
28 Even though the Court’s avoidance of an answer to the question of the human rights character vel
non of the individual right of consular assistance was due less to problems of principle with such
characterization than to the fact that the United States had made a rather unattractive effort in its oral
pleadings in LaGrand to have the Opinion by the Inter-American Court of Human Rights on the
conclusions by reference to the decisions of other international courts and tribu-
nals, before in 2007 it changed its position diametrically in the Genocide case, der
Not gehorchend, nicht dem eignen Triebe.29 And indeed, decisions rendered subse-
quent to that landmark case do exhibit a greater willingness to link with the case law
of such courts and human rights treaty bodies.30
3. The more recent jurisprudence: a qualitative leap?

Within the last few years, the picture hitherto presented has begun to change:
human rights cases have featured more prominently on the Court’s docket than
they did before. This is true not only from the perspective of sheer numbers, but
also from that of quality. While in the long first period described above, human
rights considerations essentially arose in incidental ways and played subordinate
or marginal roles, the Court has now begun to tackle human rights issues in more
straightforward ways and has turned to decide cases focusing squarely on allega-
tions of human rights violations. This development embraces international
humanitarian law.
3.1 A new approach emerging

The story begins with the Nuclear Weapons Advisory Opinion of 1996, in which
the issue of whether, and in what circumstances, the threat or use of nuclear
weapons could result in violations not only of international humanitarian law
but also of human rights law properly so called, constituted one of the angles from
which the ICJ approached the question posed to it by the General Assembly.31
Article 36 rights appear as a quantité negligeable, thus presenting the ICJ with a Pandora’s box that it
did not want to open.
29 In earlier publications on the LaGrand/Avena saga the present author commented on the reaction
of the ICJ to the Mexican contentions in the Avena Judgment as to the human rights character of the
Art 36 rights and the consequences of their violation in a way that might have led to misunderstandings
(see B Simma, ‘Eine endlose Geschichte? Artikel 36 der Wiener Konsularkonvention in Todesstra-
fenfällen vor dem IGH und amerikanischen Gerichten’ in P-M Dupuy et al (eds), Völkerrecht als
Wertordnung. Common Values in International Law: Essays in Honour of Christian Tomuschat (Kehl am
Rhein: Engel Verlag, 2006) 423, 436; B Simma and C Hoppe, ‘The LaGrand Case: A Story of Many
Miscommunications’ in JE Noyes et al (eds), International Law Stories (New York: Foundation Press,
2007) 371, 388–9; B Simma and C Hoppe, ‘From LaGrand and Avena to Medellin—A Rocky Road
Toward Implementation’ (2005) 14 Tulane J Intl and Comparative L 7, 11–13. The author therefore
clarifies that in para 124 of its Avena Judgment the Court repeated what it had already stated in
LaGrand, namely that it did not have to decide whether or not these rights qualified as human rights.
What it did not find a basis for in its interpretation of Art 36, para 1, subpara (b), however, were the
far-reaching conclusions Mexico had drawn from the alleged character of the Art 36 rights as
fundamental human rights, to the effect that violations of these rights would ipso facto vitiate the
entirety of criminal proceedings suffering therefrom. This is what the present author meant when in
the Tulane Journal in 2005 (above) he wrote that in para 124, the ICJ ‘curtail[ed] the potential reach of
a human right to consular notification’.
30 Cf Diallo (n 24) and Belgium v Senegal (n 47), discussed in 3.3 and 3.5.
31 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, paras 24–6.
The Court’s replies on the matter may not strike the reader as particularly
comprehensive or penetrating, but the remarkable fact is that the Court for the
first time squarely faced and developed a view on a human rights question, albeit
only in the abstract.
The step from the abstract to the concrete was accomplished in the Wall
Opinion of 2004,32 in which the Court found that Israel’s construction of the
separation barrier/wall on occupied Palestinian territory amounted to an entire
series of violations of obligations erga omnes and juris cogentis, prominent among
them obligations arising from human rights treaties to which Israel is a party as well
as from international humanitarian law.
The Court’s next step was from the advisory to the legally binding. It
was taken in the Congo v Uganda Judgment of 200533—the first judgment in
the Court’s history in which a finding of human rights violations, combined
with findings of violations of international humanitarian law, was included in
the dispositif.
In another of the cases brought by the Democratic Republic of the Congo
against those of its neighbours that were involved in the Great Lakes wars
from the late 1980s to the early 1990s, namely Congo v Rwanda, the Claimant,
inter alia, alleged violations of the Genocide Convention by Rwanda, but the Court
decided that it did not have jurisdiction on that basis because Rwanda, the very
country in which the most horrendous post-World War II genocide had taken
place in 1994, had excluded the legal effect of the Convention’s compromissory
clause by way of a reservation, which the Court regarded as validly made.34 While
this finding only followed its earlier jurisprudence,35 the Court took the opportun-
ity to explain that even the character of substantive obligations of the Genocide
Convention as jus cogens could not compensate for, or replace, the lack of consent,
expressed by Rwanda’s reservation, to have the Court decide on the allegation
of genocide. Five members of the Court found this position unsatisfactory enough
to write a joint Separate Opinion.36
32 Wall (n 22) 184–92.

34 Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda)
(Jurisdiction and Admissibility) [2006] ICJ Rep 6, para 68.

35 Legality of Use of Force (Yugoslavia v Spain) (Provisional Measures) [1999] ICJ Rep 542, paras
32–3; Legality of Use of Force (Yugoslavia v USA) (Provisional Measures) [1999] ICJ Rep 916, paras
24–5.
36 DRC v Rwanda (n 34). The criticism expressed by President Higgins and Judges Kooijmans,
Elaraby, Owada, and Simma proceeds from the observation that it is highly problematic for a state to
make a reservation excluding recourse to the monitoring or judicial machinery embodied in a human
rights treaty, especially if such recourse constitutes the only option available to states parties to have
questionable reservations to that treaty evaluated in an objective manner. The Separate Opinion notes
the importance of the role of the ICJ for the achievement of the purposes of a treaty such as the
Genocide Convention, where, in the absence of a treaty body exercising supervisory functions, states
are the only monitors of each others’ compliance with their treaty obligations, and the only impartial
third party they can have recourse to in case of a dispute in this regard is the Court. For a critical view of
this Opinion see H Thirlway, ‘The International Court of Justice, 1989–2009: At the Heart of the
Dispute Settlement System?’ (2010) LVII NILR 347, 366–71.
3.2 The Genocide cases

Next in the line of ICJ decisions relevant in the human rights context came the
Court’s 2007 Judgment in the Genocide case that had been brought by Bosnia and
Herzegovina against Serbia as early as 1993.37 Like the two African cases just
described, this litigation constituted a juridical Nebenkriegsschauplatz, ie, collateral
action within the context of a wider political-military dispute. This becomes clear
if we confront both the submissions listed in Bosnia’s original application,
squeezed—unsuccessfully—through the needle’s eye of the Genocide Convention,
and the concept of one single, overarching ‘genocide’ comprising the entirety of the
hostile activities of the Serbs and the Bosnian Serbs in Bosnia and Herzegovina put
forward by the Claimant at the stage of the hearings thirteen years later, with the
actual outcome of the case: the Court, following the findings of the International
Criminal Tribunal for the former Yugoslavia, according to which one single
incident of genocide, albeit of utmost gravity, had occurred at Srebenica in July
1995, and declaring Serbia in breach of, most prominently among several viola-
tions, the obligation of prevention embodied in the 1948 Convention. Be this as it
may, the case remains a human rights case, like the still-pending second Genocide
case, this time brought by Croatia against Serbia in 1999, in regard to which the
Court engaged in a truly remarkable effort to arrive at jurisdiction in 2008.38
3.3 Diallo
Once we leave these politically charged instances, we arrive at the case of Ahmadou
Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) decided by
the Court in 2010.39 From the viewpoint of the handling of human rights-related
matters by litigants as well as by the ICJ itself, Diallo displays very different
characteristics. At first glance, it appears to be a case involving diplomatic protec-
tion, rather old-fashioned as such, exercised by Guinea through an application
to the Court. But a closer look reveals features that are pertinent to our topic.
The case arose from the mistreatment of a Guinean businessman in the DRC,
mistreatment that Mr Diallo experienced both personally, by being illegally arrested
and detained in the Congo and ultimately expelled from the country, and
through the consequences that these and other measures of the Congolese author-
ities had on the fate of two companies which the victim controlled, regarded by
the Claimant as a case of indirect expropriation. The case involved both economic
(company/shareholders) law aspects and human rights law instruments on
which Guinea relied concerning the treatment of Mr Diallo personally, namely

39 Diallo (n 24).
the International Covenant on Civil and Political Rights and the African Charter
on Human and Peoples’ Rights.
What is noteworthy in our context is that, while in Guinea’s original Applica-
tion allegations of violations by the DRC of obligations relating to Mr Diallo’s
ownership of companies under Congolese law had enjoyed priority over the
claims of violations of Mr Diallo’s human rights, this underwent a marked
change after the Court in 2007 had declared inadmissible the most important
company and shareholder rights claims.40 From now on, the human rights
aspects rose like a phoenix from the ashes of the case, as it were, and came to
enjoy priority, both in the parties’ pleadings and in the final Judgment of the
Court. In its Judgment on Mr Diallo’s individual (now termed ‘human’) rights,
the Court turned to the relevant provisions both of the ICCPR and of the
African Charter and found that the conditions of lawful expulsion of aliens
and of arrest and detention as secured in both of these instruments had been
violated by the treatment of Mr Diallo.
Another, maybe even more remarkable, feature of the Diallo case is the way in
which the ICJ handled the fact that the case had been brought as a means of
diplomatic protection of Mr Diallo’s rights by his home state. What the Court
managed to do in this regard was to emancipate the case from the dogmatic
straitjacket of this traditional institution: the Judgment goes on speaking of
Mr Diallo’s individual human rights as such and does not even try to translate
them back into rights of his home state à la Mavrommatis; it engages in
straightforward assessments of breaches of human rights treaty provisions and
in so doing expressly refers to, and follows, the jurisprudence of UN and regional
monitoring bodies, without engaging in any of the exercises in coyness that had
marked the Court’s relationship with other international courts and tribunals
before (that is, until the Genocide case). The only occasion on which an element
of traditional diplomatic protection resurfaced was with regard to the question of
reparation for the injuries suffered by Mr Diallo: such reparation was to be
determined through negotiations between the parties, for which the Court set a
rather tight deadline of six months.41 After this period of time had passed
without the parties having reached agreement, the Court took the case back
into its hands and on 19 June 201242 awarded Guinea (rather modest) compen-
sation, reminding the Claimant state that the sum awarded to it in the context of
diplomatic protection was intended to provide reparation for the injury suffered
by Mr Diallo himself.
What makes the Diallo case so interesting in our context is that an inter-state
mechanism was used in which the affected individual as the bearer of the human
rights in question is represented at the diplomatic level by his state of nationality;
40 Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections) [2007] ICJ Rep 582.
41 Diallo (n 24) para 164.
42 Ahmadou Sadio Diallo (Guinea v DRC) (Compensation) Judgment of 19 June 2012 (<http://
www.icj-cij.org/docket/files/103/17044.pdf> (accessed 17 May 2013)).

while the individual is the holder of the rights, the judicial enforcement of these
rights remains entrusted to the state ( faute de mieux, one could say, because in the
case at hand, no other, specialized implementation machinery was available). In
thus squaring the procedures of diplomatic protection and human rights as direct
rights of the individual under international law, the Court in Diallo has made an
important contribution to reconciling these two areas of the law in a progressive
sense, further away from the spirit of Mavrommatis and in line with the recent
efforts of the ILC.43
3.4 Georgia v Russia

In 2011, the Court rendered another judgment concerning human rights
matters, but distinctly less destined to satisfy the protagonists of a forceful role
of the Court. It brought to an end (prematurely, in the view of the author) the
case of Georgia v Russia, submitted in 2008,44 with Georgia claiming that Russia,
by actions of its own organs as well as of the de facto authorities in South Ossetia
and Abkhazia on and around Georgian territory, culminating in the armed
conflict in August 2008, had breached the International Convention on the
Elimination of all Forms of Racial Discrimination (CERD) of 1965. Russia put
forward preliminary objections against jurisdiction and admissibility, one of
which the Court accepted by deciding that Georgia had not fulfilled a condition
of access to the Court set up in Article 22 of CERD, namely to engage in
negotiations with the Respondent on the question of violations of that Conven-
tion proper before going to The Hague.45 Two particular features of this case
deserve to be mentioned. On the one hand, this was a case which, like the Balkan
Genocide cases mentioned above, turned exclusively on a particular human rights
treaty. Within an inter-state, and in this sense purely bilateralist, framework, the
Applicant accused the Respondent of having committed violations of its obliga-
tions under CERD—a scenario that confirms that, notwithstanding the so-called
‘objective’ nature of human rights treaty obligations, other states parties remain
free to claim enforcement of obligations due to them, based on obligations owed
to the individuals under the protection of the treaty in question.46 On the other
hand, however, Georgia v Russia was as far from a ‘pure’ human rights case as one
could get, because if there ever was an instance of ICJ litigation presenting all the
features of a legal Nebenkriegsschauplatz, this was the one.
43 Cf the Separate Opinion of Judge Cançado Trindade in Diallo (n 24) paras 222–42.
44 Application of the International Convention on the Elimination of All Forms of Racial Discrimin-
ation (Georgia v Russia) (Preliminary Objections) Judgment of 1 April 2011 (<http://www.icj-cij.org/
docket/files/140/16398.pdf> (accessed 17 May 2013)). The present author both appended a Separate
Opinion and participated in a Joint Dissenting Opinion.
45 Georgia v Russia (n 44) paras 148–84.
46 Cf on this view B Simma, ‘From Bilateralism to Community Interest in International Law’
(1994-VI) 250 Recueil des Cours 217, 364–75.

3.5 Belgium v Senegal

Moving from one extreme to the other, the case of Belgium v Senegal, brought in
February 2009 and decided by the Court on 20 July 2012,47 relating to the
obligation to prosecute or extradite, may well be the most clean-cut, ‘unpolitical’,
as it were, human rights case so far handled by the Court. If a full-fledged ‘droits de
l’hommiste’ were to express it somewhat colloquially: this is a human rights case
which is almost too good to be true. Belgium came to the Court to vindicate its
right as a state party to the 1984 UN Convention against Torture (CAT) as well as
under customary international law, to secure that Hissène Habré, the former
dictator in Chad and alleged perpetrator of acts of torture during his violent reign
in Chad in the 1980s, now present in Senegal, would either be prosecuted by
Senegal, or, failing such prosecution, would be extradited to Belgium—in other
words, that Senegal fulfil its obligation of aut dedere aut judicare. The Applicant did
not frame its request in terms of diplomatic protection of Belgian nationals except
very marginally; while the Application mentions that at the domestic level the case
was triggered by complaints to the Belgian courts made, among others, by a Belgian
national of Chadian origin and taken up by the Belgian judiciary in the exercise of
the passive personality principle,48 this link retreats far to the background in
Belgium’s further pleadings and is mentioned only in passing in the Judgment’s
treatment of the question of Belgium’s standing to bring the case.49 Essentially,
Belgium construed its claims as deriving from a twofold basis: first, because it was a
state in a particular position, having a specific interest in the case, since it was the
Belgian courts that had actively been seised, some victims of Habré’s crimes were
now of Belgian nationality, and it was Belgium which had requested that Senegal
either prosecute or extradite.50 Secondly, Belgium based its claim on the right of
any state party to the CAT to see to it that any other state party fulfil the obligation
correlative to this right, either to prosecute or extradite. The Applicant regarded this
obligation as arising erga omnes partes to the Convention. Belgium’s arguments thus
proceeded from the exclusively inter-state structure of the Convention: the CAT
contains nothing but a set of obligations for its states parties and nowhere does it set
out the individual human right to be free from torture; rather, the Convention
presupposes this right as consecrated in other human rights treaties, in this regard
‘underlying’ CAT, as it were, like the ICCPR as well as in rules of general
international law juris cogentis on combating impunity for international crimes.
47 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) Judgment of
20 July 2012 (<http://www.icj-cij.org/docket/files/144/17064.pdf> (accessed 17 May 2013)).

48 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) Application
instituting Proceedings of 16 February 2009 (<http://www.icj-cij.org/docket/files/144/15054.pdf>

(accessed 17 May 2013)) para 3.
49 Belgium v Senegal (n 47) paras 64–6.
50 See Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) Memorial of
Belgium of 1 July 2010 (<http://www.icj-cij.org/docket/files/144/16933.pdf> (accessed 17 May 2013))

paras 5.14–5.18, and the confirmation of its position in the oral pleadings, CR. 2012/6, 52 ff Verbatim
Record of 19 March 2012 (<http://www.icj-cij.org/docket/files/144/16947.pdf> (accessed 17 May
2013)).
Significantly, Senegal appeared to agree with Belgium’s view of the situation in
conventional as well as customary international law. Again, what we have before us
here is an understanding of the rights and obligations arising for states parties to
human rights conventions that does not lose itself in lofty constructs of ‘objective’
obligations under such treaties, with the respective rights belonging exclusively to
individuals, or the like; rather it retains the emphasis on mutually bound states
parties and their responsibility to keep the treaties alive.
Belgium v Senegal was also the first instance in which one of the main achieve-
ments of the ILC in its Articles on State Responsibility of 2001, namely the
distinction made in the context of invocation of responsibility between ‘injured
States’ and ‘States other than injured States’,51 was tested in the Court. Belgium
based its litigant status, and thus the admissibility of its claims, on its position
not only as a state other than an injured state due to its being a party to the CAT—
that is, to a treaty embodying obligations erga omnes partes (in the sense of Article
48 of the ILC’s text)—but also as a specially affected state within the meaning of
Article 42.
In its Judgment, the Court, while not using the ILC terminology, followed the
spirit underlying the Commission’s distinction. It identified the CAT as a treaty
embodying obligations erga omnes partes, in case of which ‘[a]ll the other States
parties have a common interest in compliance with these obligations by the State in
whose territory the alleged offender is present. That common interest implies that
the obligations in question are owed by any State party to all the other States parties
to the Convention.’52 From this it followed that Belgium, as a party to the CAT,
had standing to invoke the responsibility of Senegal for a number of breaches of the
Convention which the Court then went on to confirm. Basing itself on this limb of
the Applicant’s reasoning, the Court considered it unnecessary to deal with Bel-
gium’s primary—but much more contentious—argument that it had standing as a
specially affected state. In another part of the Judgment, the Court, on the basis of
extremely cursory reasoning, stated that the prohibition of torture is part of
customary international law and has become a norm of jus cogens.53
3.6 Human rights versus immunity

This tour d’horizon of the Court’s recent case law would not be complete without a
brief look at a very particular category of ICJ human rights cases, namely instances
in which the Applicant bases (part of ) its claims on human rights norms, while the
Respondent counters with defences resting on other, more traditional, premises of
international law.54 The constellation in which this antinomy has posed itself to the
Court so far has consisted of encounters between claims to criminal responsibility
of individual perpetrators accused of war crimes or crimes against humanity, or
51 Cf B Simma, ‘Human Rights and State Responsibility’ in A Reinisch and U Kriebaum (eds), The
Law of International Relations—Liber Amicorum Hanspeter Neuhold (Den Haag: Eleven Press, 2007) 359.
52 Belgium v Senegal (n 47) para 68.
53 Belgium v Senegal (n 47) para 99.
54 For more on these issues see Roger O’Keefe’s contribution to the present volume at Chapter 7.
claims to delictual responsibility of the states behind such crimes, on the human
rights side, as it were, and, on the other, of the claim to jurisdictional immunity
of these states, respectively of the responsible state organs. What these cases demon-
strate is that in the ICJ as elsewhere (the European Court of Human Rights comes
to mind),55 human rights arguments are far from winning the upper hand in all
instances.
This became clear, rather painfully for the human rights community, in the
Court’s Judgment in the Arrest Warrant (Yerodia) case between the Democratic
Republic of the Congo and Belgium, in which the Court took the highly problem-
atic view that former foreign ministers enjoy absolute immunity from the criminal
jurisdiction of national courts including for past official acts constituting grave
crimes against humanity, even incitement to genocide.56 If international human
rights lawyers had nurtured the hope that the Court would somehow improve the
less than human rights-friendly position it had taken in the Yerodia case by using
the opportunity to do so presented by the case of Republic of Congo v France
brought in 2003,57 it was to be disappointed because this Application was with-
drawn in late 2010.58 It had its origins in judicial proceedings initiated in France
against the President, the Minister of the Interior and the Inspector-General of the
armed forces of the Congo (Brazzaville) based on accusations of crimes against
humanity and acts of torture committed under the responsibility of these persons
during an internal conflict in their country. The Republic of the Congo regarded
the action of the French judiciary as violating the immunity from foreign criminal
proceedings owed to these high-ranking officials and took the case to The Hague,
without bothering much about the niceties of jurisdiction. Remarkably, however,
France accepted the jurisdiction of the Court as a forum prorogatum under Article
38(5) of the ICJ Statute—that is, it agreed to the ICJ deciding the case in the
absence of any (other) basis of such jurisdiction. Thus the stage was set for what
might have become a reconsideration of Arrest Warrant, and above all a new
opportunity for the Court to clarify the purport of the principle of universal
jurisdiction in criminal matters—a task it had preferred not to take on ten years
earlier. It was not to be.
This leaves us with the case of Germany v Italy brought in late 2008,59 in which
Germany asked the Court to determine that Italy was responsible for breach of its
international obligation to respect Germany’s jurisdictional immunity for sovereign
acts, violations committed by Italy’s Corte di Cassazione in a series of judgments on
civil claims denying such immunity, the factual origins of which lie in war crimes
and crimes against humanity perpetrated by the Third Reich’s armed forces and
55 See notably Al-Adsani v UK (2001) 123 ILR 24 (ECtHR (GC)).

56 Arrest Warrant of 11 April 2000 (DRC v Belgium) [2002] ICJ Rep 3, 25.
57 Certain Criminal Proceedings in France (Republic of the Congo v France) (Provisional Measures)
[2003] ICJ Rep 102.

58 Certain Criminal Proceedings in France (Republic of the Congo v France) (Removal from List)
[2010] ICJ Rep 635.

59 Jurisdictional Immunities of the State (Germany v Italy) Order of 6 July 2010 (<http://www.icj-cij.
org/docket/files/143/16027.pdf> (accessed 17 May 2013)).

authorities during World War II against victims of both Italian and Greek nation-
ality.60 In its Countermemorial, Italy had raised a counterclaim relating to the
question of reparation owed by Germany to Italian victims of the violations
of international humanitarian law, by which it attempted to raise the human rights
‘weight’ of the case and put the blame in this regard on the Applicant by arguing
that the failure of the German courts to compensate these victims amounted to
a grave denial of justice. Italy’s strategy failed, however, when the Court unani-
mously rejected this procedural move due to lack of jurisdiction ratione temporis.61
In early 2011, Greece filed an Application for permission to intervene, which was—
somewhat surprisingly, in view of the ICJ’s usual reticence in this regard—granted
by the Court.62 In the eyes of the human rights community, the case made the ICJ
face the delicate task of reconciling the imperatives of the ‘new’ international law of
human rights (understood in a broad sense because the case turned on questions
of international humanitarian law), elevated by its quality as jus cogens, and the
exhortation not to de-stabilize time-honoured rules protecting the sovereignty of
states in their mutual interest.63
The Court rendered its Judgment on 3 February 2012.64 It found that Italy
had breached the obligation to respect the immunity enjoyed by Germany and
ordered Italy to ensure, by appropriate legislation or other means of its own
choosing, that the infringements of Germany’s respective right cease to have
effect. The decision, adopted by a great majority, gravely disappointed human
rights circles and at the same time put concerns in Foreign Offices to rest. In view
of the boomerang effect a judgment of the Court arriving at the opposite
conclusion might have had on the Respondent, even the Italian Government
must have been relieved.
In order to assess the position of the Court towards the human rights aspects
of the case in a sober and fair way, one must keep in mind the limits of its
jurisdiction ratione temporis drawn by the European Convention for the Peaceful
Settlement of Disputes (1957), on the basis of which Germany brought its case.
According to Article 27(a), the Convention does not open the way to the ICJ for
‘disputes relating to facts or situations prior to the entry into force of the
Convention as between the parties to the dispute’ (in our case 1961). Thus, the
Court did not possess jurisdiction to deal with the questions of the German war
60 In the following, findings of the Court without direct relevance to human rights questions, like
those relating to the measures of constraint against Villa Vigoni or to the position of Italian courts vis-à-
vis Greek judgments rendered against Germany, will not be considered.
61 Jurisdictional Immunities of the State (Order of 6 July 2010) (n 59).
62 Jurisdictional Immunities of the State (Germany v Italy) Application by Greece for Permission to
Intervene of 13 January 2011 (<http://www.icj-cij.org/docket/files/143/16304.pdf> (accessed 17 May

2013)); Jurisdictional Immunities of the State (Germany v Italy) (Application by Greece for Permission to
Intervene) Order of 4 July 2011 (<http://www.icj-cij.org/docket/files/143/16556.pdf> (accessed 17 May
2013)).
63 The human rights/humanitarian law issues were also the subject of a study prepared by Amnesty
International and brought to the attention of the members of the Court. This was one of the very rare
examples of NGO input in a contentious case.
64 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) Judgment of
3 February 2012 (<http://www.icj-cij.org/docket/files/143/16883.pdf> (accessed on 17 May 2013)).

crimes and crimes against humanity, the duty of reparation arising from these
acts, the existence of individual rights to compensation on the part of the Italian
victims, the effect of the comprehensive waiver by Italy stipulated in its 1947
Peace Treaty and of subsequent agreements concluded between the Parties in
1961, as such, even though the Court indicated that it might have to turn to these
issues, but only in case its examination of the—prior—question of German
jurisdictional immunity, as it stood at the time the case was brought, did not
put an end to the matter.65
The latter is precisely what turned out to be the case. The Court subjected the
Italian arguments to a rigorous test and arrived at the conclusion that neither the
territorial tort principle nor the subject matter and circumstances of the claims in
the Italian courts—that is, the gravity of the violations of the law of armed conflict
involved, the alleged nature of the violated rules as jus cogens, and finally, the claim
that recourse to the Italian courts had constituted the last resort available to the
victims—had the effect of depriving Germany of its entitlement to immunity;
customary international law had not changed in this regard; the Italian and Greek
court decisions denying Germany such immunity had remained isolated, over-
whelming state (court and diplomatic) practice, and opinio juris continued to
adhere to the time-honoured rules upholding immunity from civil suits even for
illegal acts of armed forces committed in the course of armed conflicts. The
thoroughness with which the Judgment examines the respective state of customary
international law is exemplary, particularly if compared with the cavalier fashion in
which the Court usually goes about anchoring its findings in general international
law. Since the Court found that the established rules on state immunity still stood
firm and admitted of no human rights-based exception, it did not have to examine
the further issues pre-dating 1961 mentioned above.
In conclusion, the case of Germany v Italy, despite its outcome, certainly is a
‘human rights case’. It applied the test of the existence and content of customary
law on state immunity, respectively of the alleged exceptions therefrom, in a state-
of-the-art manner, relying on hard facts and positive law. And it demonstrated
that human rights precepts do not have an unqualified right of way. By advertis-
ing the case as a decisive test for the openness of the ICJ towards humanitarian
concerns, the human rights community made a mistake it could have avoided had
it engaged in adequate legal analysis instead of wishful thinking aggravated by
neglect for the (im)practical consequences of a decision in Italy’s favour. That the
Court was aware of the humanitarian sensitivity of the case is demonstrated by
two paragraphs of the Judgment in which it expresses its ‘surprise and regret’
about the negative way in which German courts and authorities had dealt with
certain claims by Italian victims of acts of the Third Reich in World War II (para
99), and emphasizes that the Judgment is not supposed to stand in the way of
negotiations between the two countries aiming at a satisfactory settlement of
outstanding claims (para 104).
65 Jurisdictional Immunities of the State (n 64) para 50.

4. Background and context of the Court’s

human rights case law
The preceding review of the Court’s jurisprudence has shown a marked growth in
the number of human rights-related cases, particularly in the last few years, and,
further, an increasing openness on the part of the Court to accept and deal with
submissions and arguments in this regard. However, the relevance and relative
weight of human rights-related discourse in the case law thus described differ
greatly. If one wanted to test such relevance by determining when and how often
the term ‘human rights’ appeared in the dispositif of a decision, the result for the
earlier period under consideration in part 1 above would be unequivocally negative;
it happened for the first time only in the Congo v Uganda Judgment rendered in
2005. In view of the recent case law, would it be justified to speak of a qualitative
leap? At present, any unambiguous answer to this question would be highly
speculative. It would probably be more apposite to state that the just-mentioned
increase in the Court’s openness, as a qualitative factor, has by mere coincidence
been joined by the accumulation of what have been called human rights cases.
A look at the list of cases that are currently pending does not impress the observer as
being in any way human rights-heavy.
An examination of the reasons for this state of affairs will have to consider a few
rather basic facts, or factors, concerning the jurisdiction of the ICJ and its reach, as
it were. It is important to note that these factors pertain not only to what has been
described as the early phase in the Court’s treatment of human rights; they are as
relevant to the present situation as they were before, even though their influence
appears now somehow reduced.
A first, and actually the most basic—but also the most fundamental—reason is
to be seen in the principle that the Court’s jurisdiction is not compulsory; it
presupposes the parties’ consent. In the case of human rights treaties, the most
important expression of such consent is to be found in compromissory clauses
providing for ICJ jurisdiction. However, among the major human rights treaties,
only five contain such a clause.66 Of these five treaties, only the oldest, namely the
Genocide Convention of 1948, allows states parties immediate, direct access to the
Court. However, then, a serious question would be whether the ICJ would be
capable of handling a case involving allegations of genocide in an adequate manner
without an international criminal court preparing the ground, as happened in the
Genocide case decided in 2007.67 The Genocide Convention is the only major UN
human rights treaty not to have established a treaty body for the supervision of
66 Namely the Genocide Convention 1948, the Convention on the Political Rights of Women
1952, the International Convention on the Elimination of All Forms of Racial Discrimination 1965,
the Convention on the Elimination of All Forms of Discrimination Against Women 1979, and the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
1984.
67 Bosnian Genocide (n 37). Cf 3.2.
performance by states parties.68 Where such monitoring bodies do exist in addition

to a compromissory clause providing for ICJ jurisdiction, the question may arise
as to whether recourse to the treaty-based procedures before the respective moni-
toring body must be had before a case can be brought to the Court. In its decision
of 1 April 2011 on Russia’s Preliminary Objections in the Georgia v Russia case,
involving allegations of violations of CERD, the Court did decide upon this
question because it found that the Claimant had not fulfilled another condition
set out in CERD’s compromissory clause, namely to engage in negotiations with
its adversary.69
A second reason for the relative dearth of human rights cases before the ICJ is a
structural one. In a way, we are looking at the ‘wrong relationship’ here: approach-
ing human rights problems, above all the issue of violations, from an inter-state
perspective can only bring to the fore, and ideally solve, certain limited aspects of
these problems. The ICJ will deal with violations of human rights as matters of state
responsibility, and state responsibility is typically ‘law by states for states’.70 The
individuals that are victims of human rights violations will remain invisible (as
parties before the Court, that is); if a state decides to espouse their claims by
exercising diplomatic protection through suing the violator in the Hague Court,
the spirit of Mavrommatis will remain present, possibly somewhat suppressed if the
Court follows the precedent it set in the Diallo case.71 The task of the ICJ, however,
is precisely the settlement of inter-state disputes; only states can sue each other
before the Court, while individuals have to watch from the gallery in the Great Hall
of Justice. This leads to the decisive point: whether one likes it or not, it is a fact that
the preparedness of states to bring ‘pure’, genuine human rights scenarios before the
Court has always been extremely limited, and it is fair to assume that this will
remain the case—the few swallows mentioned in the preceding section have yet to
make a summer.
The situation might be different in the case of international humanitarian law. In
essence, international humanitarian law displays inter-state structures of perform-
ance and from this theoretical angle may offer itself more readily to methods of
dispute settlement devised for disputes arising in inter-state relations proper.
Unfortunately, however, the readiness of states to voluntarily submit contentious
issues of jus in bello to impartial third-party adjudication ranges close to zero; in the
68 For a human rights-friendly view of the consequences of this feature for the legitimacy and
admissibility of reservations excluding the jurisdiction of the ICJ as the only institutional means of
supervising performance by states parties to the Genocide Convention, see the Joint Separate Opinion
of Judges Higgins, Kooijmans, Elaraby, Owada, and Simma to the Judgment in DRC v Rwanda (n 34)
and 2.2.
69 Georgia v Russia (n 44) paras 148 ff.
70 R McCorquodale, ‘Impact on State Responsibility’ in MT Kamminga and M Scheinin (eds),
The Impact of Human Rights Law on General International Law (Oxford: OUP, 2009) 235, 236.
71 Mavrommatis Palestine Concessions, Judgment No 2 (1924) PCIJ Ser A No 2, 12: ‘By taking up
the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings
on his behalf, a State is in reality asserting its own rights—its right to ensure, in the person of its
subjects, respect for the rules of international law. Once a State has taken up a case on behalf of one of
its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.’
context of individual criminal responsibility of their organs states will have to be
forced to do so, for instance by Security Council fiat based on Chapter VII of the
UN Charter; on the attempt to reach the same result on the basis of freely given
consent by the establishment of the International Criminal Court, the jury has been
out for a depressingly long time. It is the more surprising, therefore, that a consent-
based judicial institution like the ICJ has been in a situation to develop some case
law in the area of international humanitarian law.72
To return to the topic preceding this side glance at international humanitarian
law, what might be a ‘pure’ human rights scenario that would not simply involve
human rights as an accessory to some more significant inter-state dispute? This
‘purity’, although a bit of an idealistic construct, would comprise two elements.
First, it would have to involve an instance in which State A brought violations of
human rights committed by State B against State B’s own nationals before the
Court. In other words, the case would have to be a ‘disinterested’ one, not governed
by the reflexes of diplomatic protection of nationals of State A. And secondly, the
case would have to not be (at least, not evidently) a collateral attack on another state
within the context of a broader political dispute, that is, constitute a kind of
juridical Nebenkriegsschauplatz, an ancillary theatre of conflict. However, even if
these two elements were present (and the first and only case that came close to
fulfilling both conditions was Belgium v Senegal ), the Court would still remain
structurally different from, and very far away from deserving the label of, a ‘world
court of human rights’.73 For example, if most human rights violations are
committed by the victims’ ‘home’ states, then in order to turn the ICJ into a
genuine human rights court, among many other things, access to the Court as
parties would have to be opened up to the individual victims of human rights
violations—a utopian possibility. The establishment of a Human Rights Chamber
of the present Court would not be able to overcome any of the hurdles described.74
And, of course, the ICJ would then compete with regional human rights courts
which are in many ways already fulfilling a more specialized role; while they face
plenty of challenges of their own, they do not suffer from the just described
inherent limitations to which the Hague Court is subject.
Returning to the Court’s role as an instrument designed to be used by and
between states, in contentious cases—and these instances constitute an overwhelm-
ing majority of the ICJ’s workload—the Court’s findings will depend on and
essentially be limited by the submissions ultimately formulated by the parties.
The situation resembles that of domestic civil litigation, characterized by the
72 For further details see Claus Kreß’s contribution to the present volume at Chapter 12.
73 That is why despite the increasing human rights-friendliness of the ICJ, serious ‘droits de
l’hommistes’ have never given up on the idea of a real, genuine, World Court of Human Rights; see,
most recently, the Research Reports by M Scheinin (‘Towards a World Court of Human Rights’) and
M Nowak and J Kozma (‘A World Court of Human Rights’) produced within the framework of
the Swiss Initiative to Commemorate the Sixtieth Anniversary of the Universal Declaration of
Human Rights (on file with the author).
74 For a pleading in this regard see G Zyberi, ‘Taking Rights Seriously: Time for Establishing a
Human Rights and Humanitarian Issues Chamber at the International Court of Justice?’ (2009) 2
University of Prishtina J Human Rights and Policy 103.
judicial deference to party autonomy coined in the prohibition of going ultra petita
partium. In this regard, the Court is thus ‘hostage’ to the parties; it is the parties that
remain the masters of the proceedings, and for a variety of legal and strategic reasons
they may be more or less inclined to let human rights become part of arguments.
Further, while it is true that, at the level of doctrine and theory, contemporary
international law undeniably posits a community interest in the respect for human
rights (admirably accommodated, for instance, in the ILC’s 2001 Articles on
State Responsibility),75 states have hitherto not shown a great willingness, to put
it mildly, to enforce such interest by litigating human rights disputes as such
before the ICJ, even though, both doctrinally and technically, the possibility of
doing so exists.76
Such hesitation by states to pursue community interests and enforce compliance
with obligations erga omnes, particularly those flowing from human rights norms,
by judicial means is not specific to the ICJ, however. At the universal (UN) level,
not a single inter-state complaint has ever been brought before a treaty body on the
basis of the International Covenant on Civil and Political Rights or any of the other
human rights treaties, even though most of these treaties provide for this possibility.
Inter-state litigation has also been extremely rare before regional human rights
courts, and in the cases where it happened, it was there, too, almost always
connected with an international political dispute—in other words formed one of
the Nebenkriegsschauplätze referred to earlier.
5. Prospects for the future
In the light of the recent patterns of state and judicial practice described above, is
there something that can safely be predicted about the future ‘chances’ of human
rights in the ICJ? One can be certain of one thing: the human rights genie has
escaped from the bottle. Since human rights considerations permeate more and
more areas of international law, including the traditional, inter-state kind, issues of,
and related to, human rights will necessarily present themselves also to the Court
with increasing frequency. This has become apparent by the marked increase of
cases within the last few years in which human rights have featured prominently.
In contentious proceedings, human rights-related arguments will also continue
to be raised alongside—or against—more traditional, inter-state ways of pleading.
If there ever was a certain hesitancy on the part of the Court to tackle the human
rights aspect of a case where this could be avoided, this tendency will grow weaker,
if it has not disappeared already. Moreover, it is to be expected that from time to
time straightforward human rights cases, that is, claims of violations of such rights,
75 Cf Simma (n 51).
76 Cf C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge: CUP, 2005, repr
2010) esp 158, 324; Art 3 of the Resolution of the Institut de droit international on ‘Obligations erga
omnes in International Law’ adopted at the 2005 Krakow Session, in: 71 II Annuaire de l’Institut de droit
international (Paris: Pedone, 2006) 289; and the author’s Separate Opinion in DRC v Uganda (n 33).
will reach the Court as they have done already, particularly in the Diallo case. One
can also assume that the Court will be especially prepared to deal fully with human
rights arguments in supportive ways when such arguments are in line with, or
corroborate, or strengthen, more traditional modes of international law reasoning;
Congo v Uganda and the Wall Opinion are precedents in point. Further, applica-
tions for Provisional Measures will also increasingly be supported by considerations
of human rights. As a consequence, the question of how the Court will deal with
the jurisprudence of specialized human rights courts and treaty bodies will pose
itself with greater frequency—in this regard, too, the Diallo Judgment is a good
example to follow.
In advisory proceedings, the role played by human rights will of course also
depend on the nature of the questions put to the Court. If they appear pertinent,
the expectation is that the Court will not hesitate to treat them exhaustively because
here traditional inter-state ‘reflexes’, jurisdictional straitjackets, and procedural
hurdles are much less pronounced and the Court is not confined to the submissions
of the states participating in the proceedings as in contentious cases. It is not
surprising, therefore, that in the past some of the Court’s most marked contribu-
tions to international human rights have been made through advisory opinions.
Such might be a modest prognosis of things to come. It is essentially quantita-
tive; we are on safe ground predicting that in the future the Court will have more
occasions to develop its human rights jurisprudence. The Court has been increas-
ingly supportive of human rights claims and it has demonstrated that it can handle
human rights in a way considered respectable also by the ‘droits de l’hommistes’. In
this regard, it has caught up with the existing human rights courts. But in more
normative-qualitative terms, is there something that the ICJ could do in the field
that the specialized courts cannot do, or that the Hague Court might be able to do
better?
6. A proper role for the Court
In the field of human rights, answering the question of what role the ICJ would be
particularly well suited to warrants great caution; human rights are, and will
continue to be, an environment in which the Court ought to tread with utmost
care. This admonition is appropriate for at least two reasons. The first is to be seen
in the great advances of international human rights law brought about by the
regional human rights courts, and to a certain degree also by the non-judicial
institutions of the UN human rights—particularly treaty—system. These bodies
have developed doctrines and rules custom-made for human rights, for instance
with regard to the interpretation of human rights treaties and other questions of
treaty law,77 which might go too far for more conservative circles of the legal
mainstream. One might think that this acquis should not be levelled by the
77 Cf the comprehensive study by F Vanneste, General International Law before Human Rights
Courts (Antwerp: Intersentia, 2010).

participation in the discourse of a generalist court like the ICJ. In that respect,
engagement with the ICJ is a bit of a double-edged sword: it brings recognition and
respectability to human rights within the mainstream of public international law;
but it may do so at the cost of negatively curtailing the substance of international
human rights law. However, the way in which the ICJ engaged in an exercise of
dynamic, or evolutionary, treaty interpretation in its 2009 Judgment on Naviga-
tional and Related Rights on the San Juan River between Costa Rica and Nicar-
agua78 bodes well in this regard and might indicate the willingness of the Court to
test the application of progressive traits originally developed in specialized human
rights jurisprudence to other branches of international law.
The second reason why the ICJ ought to be careful with regard to its role in the
human rights field lies in the socio-political basis of the Court in the international
community of states which it is to serve. In a certain sense, the ICJ is the permanent
international court that still resembles most closely a system of dispute settlement
by voluntary arbitration from the viewpoint of the freedom of states to have
recourse to it: its contentious jurisdiction is still strictly consensual, and compared
with the working of more recently created judicial bodies, especially at the regional
level, the functioning of the Hague Court shows a distinctly more pronounced
respect for the sovereignty of its users throughout. From there it is only a small step
to conclude that at least a part of its clientele might be somewhat less than
enthusiastic if the ICJ assumed more pronounced features of a human rights
court. Could the consequence be a loss of popularity with some of its best custom-
ers? As a matter of fact, most states—that is, not only the usual suspects in the eyes
of Western observers—all too often behave like foxes guarding the well-being
of chickens in human rights matters and are thus rather reticent about the idea of
truly effective international third-party adjudication of their problems in this field.
International human rights are a permanent nuisance, and very often a threat, to
the holders of political power. If the Court, to whose compulsory jurisdiction states
might have consented with the expectation that what they could possibly get
involved in would be inter-state litigation of the traditional type, began broadly
to accept, to give just one example, applications or interventions by states ‘other
than injured States’ in the sense of the ILC’s 2001 Articles on international
responsibility,79 this might come as a rather unpleasant surprise to many of its
clients, not all of which count among the most human rights-respecting countries.
After all, the development of international human rights will not infrequently upset
sovereignty-based rules of international law with which most states have been, and
still are, quite comfortable.
What, then, is a proper role for the Court in matters of human rights? Arguably,
the most valuable contribution the ICJ can make to the international protection of
human rights—a role for which it is particularly well equipped and practically has
no competition—consists in what could be called the juridical ‘mainstreaming’ of
human rights, in the sense of integrating this branch of the law into both the fabric
78 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) [2009] ICJ Rep 213.
79 Cf Simma (n 51) 367–73.
of general international law and its various other branches.80 By way of illustrating
what the Court can do, and is already doing, to fulfil that task, it can render human
rights arguments more readily acceptable to international law generalists by inter-
preting and applying substantive provisions of human rights treaties in an orthodox
way, compared, for instance, to the reading given to such provisions by certain
General Comments issued by UN human rights treaty bodies, all too often marked
by a dearth of proper legal analysis compensated by an overdose of wishful thinking.
Further, the Court is singularly capable of devising solutions to practical, more
technical, legal problems which arise at the interface between human rights
and more traditional international law, thus paving the way for the acceptance
of human rights arguments and, more generally, supporting and developing the
framework of human rights protection.
The Court has already made considerable contributions in this regard, albeit
with varying degrees of success or ‘constructiveness’, depending on the viewpoint of
the (either human rights-minded or ‘statist’) observer. There are a considerable
number of issues in respect of which the Court has already engaged in this sort of
‘mainstreaming’:
(1) As indicated above, in its recent case law the Court has clarified the nature of
obligations flowing from human rights treaties, in the sense that these
obligations create correlative rights not only for individuals but also for the
other states parties to the treaties, which these parties may enforce or
vindicate in judicial proceedings.81
(2) The Court has made decisive contributions to the development of the law on
reservations to human rights treaties and several other questions of the law of
treaties applying particularly to such instruments.82
(3) In concert with the jurisprudence of regional human rights courts and UN
human rights treaty bodies, the ICJ has contributed to clarifying the
territorial scope of human rights treaty obligations.83
(4) The Court has contributed to the development of the doctrine of positive
obligations in the area of human rights by giving contours to obligations of
prevention.84
(5) In several decisions, it has dealt with the question of attribution to a state of
human rights violations by non-state actors.85
80 Cf Vinuales (n 4) regarding an analogous role of the Court in the field of international environ-
mental law.
81 Cf remarks made in LaGrand (n 24), Avena (n 24), Georgia v Russia (n 44), Belgium v Senegal
(n 47), and Diallo (n 24) cases.

82 Cf remarks made in the Court’s Advisory Opinions on Reservations to the Genocide Convention
(n 10) and Wall (n 22) as well as its Judgments in DRC v Rwanda (n 34) and Bosnian Genocide (n 37).
83 Cf Wall (n 22) paras 104–13, and Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v Russia) (Provisional Measures) [2008] ICJ Rep 353. For
a comprehensive treatment see M Milanović, Extraterritorial Application of Human Rights Treaties:
Law, Principles and Policy (Oxford: OUP, 2011).
84 Particularly in Bosnian Genocide (n 37) paras 428–32.
85 Cf Bosnian Genocide (n 37) and Congo v Uganda (n 33).
(6) The Court has clarified the relationship between human rights law and
international humanitarian law.86
(7) In its recent case law, it has dealt with the relationship between treaty-based
implementation procedures foreseen in human rights conventions and its
own jurisdiction.87
(8) With regard to the setting of priorities between human rights consider-
ations/obligations and other rules of international law, particularly rules on
state and state organ immunity, the Court has demonstrated in two cases
that it regards human rights law as embedded in the general system of
international law without, as such, enjoying any innate primacy.88
(9) The Court has already adapted rules on state responsibility for internation-
ally wrongful acts to the special situation of human rights violations.89
(10) Finally, and more generally, the Court has accepted and developed what
might be called ‘international legal vehicles’ which have then been put to
use to give human rights obligations even greater legal authority; in the first
instance the category of jus cogens, and, doctrinally connected to such
higher law, that of obligations erga omnes.90
Thus, if one wanted to find a short-term description of the current status of human
rights before the International Court of Justice, one could say that it is an instance
of international legal discourse in which old international law (represented for our
purposes by the Court) encounters the new. What we can observe already is that
the Court has become a major player in a process in which human rights and
general international law mutually impact upon one another: human rights ‘mod-
ernize’ international law, while international law ‘mainstreams’, or ‘domesticates’,
human rights.
86 Cf Nuclear Weapons (n 31) paras 24–25; Wall (n 22) paras 104–6.

87 Cf the Georgia v Russia (Provisional Measures) (n 83) and (Preliminary Objections) (n 44).
88 See Arrest Warrant (n 56) and Jurisdictional Immunities of the State (n 64).
89 Above all, concerning responsibility for the breach of negative obligations and such responsibility
in case of violation of positive obligations, particularly obligations of prevention, in Bosnian Genocide

(n 37); concerning reparation for the non-prevention of genocide in the same case; and most recently
concerning reparation for human rights violations for the benefit of the individual victims in Diallo
(n 24).
90 As regards the Court’s specific contribution to the development of these two categories, while the
promotion of obligations erga omnes can clearly be attributed to its jurisprudence, the Court has for an
embarrassingly long time been hesitant to pay more than lip service to jus cogens; cf the Separate
Opinion of Judge ad hoc John Dugard in DRC v Rwanda (n 34) 86.
14
The International Court of Justice and the
Rights of Peoples and Minorities
Gentian Zyberi*
1. Introduction
A number of legal issues concerning the rights of peoples and minorities have been
argued before the International Court of Justice (ICJ, or ‘the Court’) and its
predecessor, the Permanent Court of International Justice (PCIJ, or ‘the Permanent
Court’).1 Since peoples or minorities as such do not have standing before the ICJ,
the Court’s involvement with regard to these rights has arisen mainly through its
advisory function. Nevertheless, there have also been a number of relevant conten-
tious cases. Although it is unquestionable that certain rights have been granted to
peoples and minorities, these two groups have not yet achieved legal capacity to
demand respect for those rights.2 It has been states or organs of the League of
Nations or later of the United Nations which have taken action on behalf of
affected peoples and minorities. In acknowledging that fact in the context of the
right of peoples to self-determination, the ICJ has noted that ‘all States should bear
in mind that the injured entity is a people which must look to the international
community for assistance in its progress towards the goals for which the sacred trust
was instituted.’3 Interestingly, neither the Permanent Court nor the ICJ has
endeavoured to provide a general, comprehensive definition of either the notion
* I would like to thank Kristin Henrard, Christian J Tams, and James Sloan for their useful
feedback. I am also grateful to my former colleagues at the Amsterdam Centre for International
Law, University of Amsterdam, for their thoughtful questions and comments during a presentation
based on an earlier draft. Any possible mistakes are my own.
1 See generally T Koivurova, ‘The International Court of Justice and Peoples’ (2007) 9 Intl
Community L Rev 157; A-L Vaurs-Chaumette, ‘Peoples and Minorities’ in J Crawford, A Pellet and
S Olleson (eds), The Law of International Responsibility (Oxford: OUP, 2010) 993–1003. For a more
general discussion see AM de Zayas, ‘The International Judicial Protection of Peoples and Minorities’
in C Brölman, R Lefeber and M Zieck (eds), Peoples and Minorities in International Law (Dordrecht:
Martinus Nijhoff, 1993) 253–87.
2 Vaurs-Chaumette (n 1) 994.
3 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16 para 127.
of peoples or that of minorities.4 In any case, in the framework of the United
Nations (UN) several instruments have been adopted which provide for extensive
rights for minorities and peoples, including indigenous peoples.
This chapter provides a tentative assessment of the extent to which international
law in these areas has been shaped by the PCIJ’s and ICJ’s findings. That evaluation
is based on a comparison of the legal findings of the PCIJ and the ICJ in these areas
with relevant international law standards that have developed subsequently and in
tracking the influence of such findings on international law-making processes as
well as on the case law of other (quasi-)judicial bodies. Eventually, violations of the
rights of peoples and minorities trigger questions of international responsibility,
including both individual and shared state responsibility.5 Although on occasion
the stage of attributing responsibility to states for internationally wrongful acts
affecting peoples and minorities has not been reached because of jurisdictional
hurdles, as the ICJ has correctly observed, states remain responsible for acts
attributable to them which are contrary to international law.6
Divided in two main parts, the chapter focuses on the PCIJ’s and ICJ’s contri-
butions to interpreting and developing the rights of peoples and minorities through
their case law. The contribution of the Permanent Court to interpreting and
developing the rights of minorities is dealt with in the first part, since it is mainly
this court which has dealt with minority issues.7 This part starts with a discussion of
4 Nor has that been done to date by other international adjudicatory mechanisms. However, it bears
mentioning that the PCIJ defined a minority community as a ‘group of persons living in a given
country or locality, having a race, religion, language and traditions of their own and united by this
solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the
instructions and upbringing of their children in accordance with the spirit and traditions of their race
and rendering mutual assistance to each other’. A definition of the term ‘minority’ can be found in
the Report Protection of Minorities: Possible Ways and Means of Facilitating the Peaceful and Constructive
Solution of Problems Involving Minorities, Commission on Human Rights: Sub-Commission on
Prevention and Protection of Minorities, by Asbjørn Eide, UNGAOR, forty-fifth Sess, Agenda Item
17, UN Doc E/CN.4/Sub.2/1993/34 (1993) 7, para 29. That definition reads: ‘For the purpose of this
study, a minority is any group of persons resident within a sovereign State which constitutes less than
half the population of the national society and whose members share common characteristics of an
ethnic, religious or linguistic nature that distinguish them from the rest of the population.’ An earlier
definition is provided by Capotorti, Special Rapporteur of the United Nations Sub-Commission on
Prevention of Discrimination and Protection of Minorities, in a 1977 report, who defines a minority as
a ‘group numerically inferior to the rest of the population of a State, in a non-dominant position, whose
members—being nationals of the State—possess ethnic, religious or linguistic characteristics differing
from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed
towards preserving their culture, traditions, religion or language’. See UN Doc E/CN.4/Sub.2/384/
Rev.1, para 568.
5 On the issue of shared responsibility see inter alia A Nollkaemper, Issues of Shared Responsibility
before the International Court of Justice, ACIL Research Paper No 2011-01, April 2011, <http://www.
sharesproject.nl/wp-content/uploads/2011/04/SHARES-RP-01-final.pdf> (accessed 17 May 2013).
6 See inter alia Legality of Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections)
[2004] ICJ Rep 279 para 128; Armed Activities on the Territory of the Congo (New Application: 2002)
(DRC v Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep 6 para 127; Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia
and Montenegro) (Merits) [2007] ICJ Rep 43 para 277.
7 For a general discussion of the evolution of minority rights see inter alia N Lerner, ‘The Evolution
of Minority Rights in International Law’ in Brölman et al (n 1) 77–101 and comments by M Novak,

Brölman et al (n 1) 103–18. Lerner distinguishes four major stages in that evolution, namely
Rights of Peoples and Minorities 329
the PCIJ’s role in the system of minorities protection. The discussion then turns to
the principles of equal treatment and the prohibition of discrimination, followed
by the right of a minority to preserve its specific identity, namely its language,
religion, and cultural traditions. The second part deals with the contribution of the
ICJ with regard to the rights of peoples. In this part, the right of peoples to self-
determination and peoples’ right to natural resources are dealt with first. Subse-
quently, the discussion turns to the Court’s contribution to interpreting and
developing peremptory norms protecting the rights of peoples, namely the prohib-
ition of genocide, of racial discrimination, and of apartheid.
2. International protection of the rights of minorities

through the Permanent Court
As noted above, a significant contribution to the law relating to the rights of

minorities was made by the ICJ’s predecessor, the PCIJ, in the period between
the two World Wars.8 Between 1922 and 1940 the PCIJ dealt with twenty-nine
contentious cases between states, and delivered twenty-seven advisory opinions, a
number of which dealt with issues concerning the rights of minorities.9 With the
dissolution of the Ottoman Empire and other major changes in the political map of
Europe between the First and the Second World Wars which resulted in the
creation of a number of new states, the rights of minorities took on increased
importance.10 Many of the newly created states in Europe included large minorities
within their borders. Their governments had little desire to comply with the
numerous international obligations imposed upon them under the Paris Peace
Treaties or undertaken through unilateral declarations.11 Moreover, it is not certain
that the minorities themselves were sufficiently cohesive or motivated to take
pre-World War I; the League of Nations system; the pattern followed by the United Nations implying
a shift from group protection to the protection of individual rights and freedoms almost exclusively;
and the modern group-oriented trends. See also K Henrard, ‘Charting the Gradual Emergence of a
More Robust Level of Minority Protection: Minority Specific Instruments and the European Union’
(2004) 24(4) Netherlands Quarterly of Human Rights 559; K Henrard, Equal Rights versus Special Rights?
Minority Protection and the Prohibition of Discrimination (European Communities, 2007).
8 For general information on minorities under international law see <http://www.ohchr.org/EN/
Issues/Minorities/Pages/internationallaw.aspx> (accessed 17 May 2013).

9 For the full text of the publications of the PCIJ see <http://www.icj-cij.org/pcij/index.php?p1=9>
(accessed 17 May 2013). Generally on the PCIJ see MO Hudson, The Permanent Court of Inter-
national Justice 1920–1942 (New York: Macmillan, 1943).
10 A number of treaties were concluded during that time, including the Treaty of Lausanne (July
1923, League of Nations Treaty Series, vol 28, 112–13), the Treaty of Trianon (League of Nations
Treaty Series, vol 6, 188), and the Treaty of Saint Germain (September 1919, 226 CTS 182).
11 See, inter alia, Declaration by the government of Albania, issued 2 October 1921 (League of
Nations Treaty Series, vol 9, 174–9); Declaration by the Government of Lithuania, issued 12 May
1922 (League of Nations Treaty Series, vol 22, 394–9); Declaration by the Government of Bulgaria,
issued 29 September 1924 (League of Nations Treaty Series, vol 29, 118–21); Declaration by the
Government of Greece, issued 29 September 1924 (League of Nations Treaty Series, vol 29, 124–7).
responsibility for their own cultural affairs, not to mention their political affairs.12
Many controversial issues arose between states in the context of mutual and
voluntary emigration of individuals and communities of minorities, as well as the
voluntary or compulsory exchange of populations, which took place mainly be-
tween countries emerging from the former Ottoman Empire.
While not providing a comprehensive definition of minorities, a distinction was
drawn by the Permanent Court between minorities in the broad sense and minor-
ities in the narrow sense. Thus, according to the PCIJ, the members of minorities
who are not citizens of the state enjoyed protection—guaranteed by the League of
Nations—of life and liberty and the free exercise of their religion, while minorities
in the narrow sense, that is, minorities whose members are citizens of the state,
enjoyed—under the same guarantee—amongst other rights, equality of rights in
civil and political matters, and in matters relating to primary instruction.13 The
PCIJ’s role in and contribution to developing and interpreting minority rights is
dealt with in some detail in the following four subsections.
2.1 The PCIJ’s role in the League of Nations system

of minorities protection
The PCIJ made its contribution to the League of Nations’ minority protection
system by solving disputes arising from the application of relevant minority treaties.
Because of the potential adverse effects on international peace and security, the
treatment of minorities has been considered a matter of international concern.
Among others, reciprocal and voluntary emigration and exchange of populations
were some of the measures employed to reduce the potential for conflict.14 In the
Greco-Bulgarian ‘Communities’ case, the PCIJ noted the close relationship that
existed between the relevant Greco-Bulgarian Convention concerning emigration
and the general body of measures designed to secure peace by means of the
protection of minorities.15 As the PCIJ put it:
The general purpose of the instrument is thus, by as wide a measure of reciprocal emigration
as possible, to eliminate or reduce in the Balkans the centres of irredentist agitation which
were shown by the history of the preceding periods to have been so often the cause of
lamentable incidents or serious conflicts, and to render more effective than in the past the
process of pacification in the countries of Eastern Europe.16
12 C Fink, ‘The Minorities Question at the Paris Peace Conference: The Polish Minority Treaty,
June 28, 1919’ in MF Boemeke, GD Feldman and E Gläser (eds), The Treaty of Versailles:
A Reassessment after 75 Years (Cambridge: CUP, 1998) 263.
13 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory
(1932) PCIJ Ser A/B No 44, 39.

14 The policy of solving possible minority conflicts by physically uprooting minorities or whole
populations instead of trying to guarantee them their human rights in their homelands was pursued
even following World War II. See de Zayas (n 1) 258–9.
15 Greco-Bulgarian ‘Communities’ (1930) PCIJ Ser B No 17, 19.
16 Greco-Bulgarian ‘Communities’ (n 15) 19.
Besides rather radical and quite traumatic measures such as emigration and ex-
change of populations, the minority treaties under the League of Nations included
certain guarantees such as the granting of citizenship, equal legal protection and
religious freedoms. It bears mentioning that minorities treaties and the case law of
the PCIJ with regard to the issue of citizenship were considered by the International
Law Commission (ILC) in its work on the topics ‘Nationality, including stateless-
ness’17 and ‘Nationality in relation to the succession of States’.18 As the PCIJ
pointed out, the idea underlying the treaties for the protection of minorities was to
secure for minorities the possibility of living peaceably alongside that population and
cooperating amicably with it, while at the same time preserving the characteristics
which distinguish them from the majority, and satisfying the ensuing special
needs.19 While supposedly treaties on the rights of minorities were to herald a
new era with regard to minority rights, by and large these treaties lacked effective
tools for enforcement.20
Although never formally abrogated, the system of the League of Nations on the
protection of minorities ceased to exist, as the activity of the League came to an
end.21 While that system of protection was operating, through its advisory opinions
the PCIJ assisted the Council of the League of Nations in its work on various
minority problems and laid the foundations relevant to the scope of minority rights
under international law. In the case German Settlers in Poland, the PCIJ construed
the terms of the Minorities Treaty as allowing the Council, when acting under this
treaty, to consider and interpret the laws or treaties on which the rights claimed to
be infringed were dependent, so as to ensure that the pledged protection for the
minority might be certain and effective.22 That is a very important finding, since a
minority lacked the legal capacity to invoke the international responsibility of the
responsible state when its rights were breached.
From the start the Permanent Court emphasized that, in the relations between
the contracting parties to a treaty, the provisions of municipal law cannot prevail
over those of the treaty.23 Moreover, the PCIJ considered as self-evident the
principle according to which a state which has contracted valid international
17 See ILC Ybk 1954/II, 33, 51, and 93 dealing with the issue of conferring nationality on all
persons born or domiciled in the territory of the new state; and allowing the right of option upon
reaching adulthood, widely recognized in the peace treaties and minorities treaties that were concluded
after the end of World War I. The work of the International Law Commission on this topic resulted in
the Convention on the Reduction of Statelessness of 1961, United Nations Treaty Series, vol 989, 175.
18 See the ILC’s Draft Articles on Nationality of Natural Persons in relation to the Succession of
States with commentaries, ILC Ybk 1999/II(2), 37.

19 Minority Schools in Albania (1935) PCIJ Ser A/B No 64, 17.
20 For a detailed discussion of the system of minorities protection see, inter alia, H Rosting,
‘Protection of Minorities by the League of Nations’ (1923) 17(4) AJIL 641; JL Kunz, ‘The Present
Status of the International Law for the Protection of Minorities’ (1954) 48(2) AJIL 282; Fink (n 12)
249–74; L Thio, Managing Babel: The International Legal Protection of Minorities in the Twentieth
Century (Dordrecht: Martinus Nijhoff, 2005).
21 Study of the Legal Validity of the Undertakings concerning Minorities (E/CN.4/367, 7 April 1950).
See also Kunz (n 20) 284.

22 Advisory Opinion given by the Court on September 10th 1923 on certain questions relating to settlers
of German origin in the territory ceded by Germany to Poland PCIJ (1923) Ser B No 6, 25.
obligations is bound to make in its legislation such modifications as may be
necessary to ensure the fulfilment of the obligations undertaken.24 Basically, the
PCIJ articulated a principle of international law which, as Fitzmaurice has rightly
noted, informs the whole international legal system and applies to every branch of
it.25 That general principle on the relationship between domestic law and inter-
national treaties is embodied in Article 27 of the 1969 Vienna Convention on the
Law of Treaties, which provides that a party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty.26 Giving priority to
the terms of the minority treaties over domestic laws was necessary in order to
prevent the imposition of discriminatory domestic laws and practices on minorities.
2.2 The prohibition of discrimination and equal

treatment of minorities
As the PCIJ noted, in order to ensure peaceful cohabitation within the countries
concerned and to enable the preservation of the particular characteristics of the
minorities living therein, the provisions of minority treaties addressed two closely
related concerns. The first concern was placing nationals belonging to racial,
religious, or linguistic minorities on a footing of perfect equality in every respect
with the other nationals of the state. The second concern was ensuring for the
minority suitable means for the preservation of their racial peculiarities, their
traditions, and their national characteristics. As the PCIJ put it, these two issues
are indeed closely interlocked, for there would be no true equality between a
majority and a minority if the latter were deprived of its own institutions, and
were consequently compelled to renounce that which constitutes the very essence
of its being a minority.27 The Permanent Court also observed that the Polish
Minorities Treaty, like all other minorities treaties, lays down the minimum
guarantees which the state concerned is required to accord.28 Further, it added
that the state is at liberty, either by means of domestic legislation or under a
convention, to grant to minorities rights over and above those assured by the
Minorities Treaty.29 The minimum guarantees safeguard was incorporated as a
legal provision in many international human rights treaties adopted after the
Second World War under the framework of the United Nations.
24 Exchange of Greek and Turkish Populations (1925) PCIJ Ser B No 10, 20.
25 GG Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint
of the Rule of Law’ (1957) 92 Recueil des Cours 85.
26 For a detailed discussion see, inter alia, the commentary to Art 27 by A Schaus in O Corten and
P Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary (Oxford: OUP, 2011)
688–701.
27 Minority Schools in Albania (n 19) 17.
28 Treatment of Polish Nationals (n 13) 40. In Minority Schools in Albania the Permanent Court
spoke about a minimum of rights to be granted to all inhabitants without distinction as to birth,
nationality, language, race, or religion as the minimum necessary to guarantee effective and genuine
equality as between the majority and the minority.
29 Treatment of Polish Nationals (n 13) 40.
The PCIJ applied the general legal principles of non-discrimination and equal
treatment in several cases concerning minorities. The prohibition of discrimination
is a general principle of international law which permeates not only the system of
international protection of minorities, but also more generally the body of inter-
national human rights law developed after the Second World War. Under the minority
protection regime, minorities could draw from public funds for their own educational,
religious, or charitable purposes. Moreover, in towns and districts containing a
considerable proportion of nationals belonging to racial, religious, or linguistic minor-
ities, these minorities were to be assured an equitable share in sums provided out of
public funds under the state, municipal or other budgets, for educational, religious, or
charitable purposes.30 In its Advisory Opinion on German Settlers in Poland, the PCIJ
stated that the main object of the Minorities Treaty is to ‘assure respect for the rights of
minorities and to prevent discrimination against them by any act whatsoever . . . inde-
pendent of whether the rights the infraction of which is alleged are derived from a
legislative, judicial or administrative act, or from an international engagement’.31
Many years later, in the Minority Schools in Albania case, the PCIJ observed again
that the idea underlying the treaties for the protection of minorities was ‘to ensure that
nationals belonging to racial, religious or linguistic minorities shall be placed in every
respect on a footing of perfect equality with the other nationals of the State’.32
In interpreting the meaning of the phrase ‘same treatment and security in law
and in fact’ contained in Article 8 of the Minorities Treaty,33 the PCIJ held that
‘[e]quality in law precludes discrimination of any kind; whereas equality in fact may
involve the necessity of different treatment in order to attain a result which
establishes an equilibrium between different situations’.34 According to the PCIJ,
‘same treatment and security in law and in fact’ implies a notion of equality which is
peculiar to the relations between the majority and minorities.35 In further clarifying
its understanding of equality under the applicable law, the PCIJ noted that ‘[t]here
must be equality in fact as well as ostensible legal equality in the sense of the absence
of discrimination in the words of the law’.36 The PCIJ also emphasized that
equality between members of the majority and of the minority must be an effective,
genuine equality.37 Unsurprisingly, in the German Settlers in Poland case the
Permanent Court found a violation with regard to a Polish law which, while
ostensibly drafted in neutral terms, in fact affected only German farmers who
had settled in Poland before the First World War under leases granted by
the Prussian State.38 Almost a decade later, the Permanent Court took a similar
30 Minority Schools in Albania (n 19) 22. 31 German Settlers in Poland (n 22) 25.
33 German Settlers in Poland (n 22) 20. The relevant part of Art 8 reads: ‘Polish nationals who
belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and
in fact as the other Polish nationals’ (emphasis added).
36 German Settlers in Poland (n 22) 24.
38 German Settlers in Poland (n 22) 36–7. For a very succinct discussion of the contribution of the
PCIJ to minority rights see, inter alia, the speech given by His Excellency Judge Gilbert Guillaume,
position in the Treatment of Polish Nationals case by stating that a measure which in
terms was of general application, but in fact was directed against Polish nationals
and other persons of Polish origin or speech, constituted a violation of the prohib-
ition of discrimination.39 In that same case the PCIJ noted again that ‘the prohib-
ition against discrimination, in order to be effective, must ensure the absence of
discrimination in fact as well as in law.’40 It has been noted that, through these
cases, the Permanent Court laid the foundations for what would become some
decades later the policy of positive discrimination in favour of minorities, thus
paving the way for the famous concept of ‘affirmative action’, so dear to American
liberals in the 1970s.41 These findings of the PCIJ provide a useful discussion of
and distinction between formal and substantive equality, a distinction which over
time has become part and parcel of international human rights law theory and
practice.
A rather controversial issue arising in the context of implementing agreements on
population exchanges was how to dispose of property belonging to minority
communities. In the Greco-Bulgarian ‘Communities’ case the PCIJ stated that the
provisions of the Convention dealing with the issue of ‘property belonging to
communities’ had to be construed in accordance with the aim the Convention
was designed to achieve, namely to facilitate emigration as far as possible, and not as
including only those communities which were accorded special legal recognition by
the local legislation.42 In introducing the concept of equality of treatment among
emigrant members of these communities, the PCIJ held that just as persons
emigrating subsequent to the Convention participate in the property of the
community the dissolution of which is brought about by their emigration, so
former refugees ought to have the possibility of participating in the proceeds of
the liquidation of property belonging to a community of which they were members
and the dissolution of which resulted from their departure.43 These findings of the
Permanent Court were important in that they tried to facilitate to the greatest
extent possible the emigration of minority communities and transfer of their assets,
while preserving equality of treatment among the members of these communities.
2.3 The right of a minority to preserve its identity

The right of a minority to preserve its own identity was probably one of the first
internationally recognized group rights. The treaty clauses aimed at protecting
a minority’s culture and specific identity are an important component of the
President of the ICJ, to the Sixth Committee of the General Assembly of the United Nations on
30 October 2002, para 2, <http://www.icj-cij.org/presscom/files/3/3123.pdf> (accessed 17 May 2013).
39 Treatment of Polish Nationals (n 13) 28. 40 Treatment of Polish Nationals (n 13) 28.
41 Guillaume (n 38). 42 Greco-Bulgarian ‘Communities’ (n 15) 22.
43 Greco-Bulgarian ‘Communities’ (n 15) 32. Moreover, the PCIJ’s interpretation test of ‘aim and
spirit’ has become the ICJ’s ‘object and purpose’ test. This test was ultimately included in Art 31(1) of
the 1969 Vienna Convention on the Law of Treaties, which 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.
minority protection system. In Minority Schools in Albania, the PCIJ observed that
the idea underlying the treaties for the protection of minorities was ‘to ensure for
the minority elements suitable means for the preservation of their racial peculiar-
ities, their traditions and their national characteristics’.44 To that end, minorities
had the right, usually at their own expense, to establish, manage, and control
charitable, religious, and social institutions, schools, and other educational estab-
lishments, as well as the right to use their own language and follow their own
religious beliefs. Although minority rights were granted in terms of group rights,
there was no agreed-upon definition as to what constitutes a minority community.
Perhaps this was due to the PCIJ considering that the existence of communities was
a question of fact and not one of law.45 The Permanent Court underscored the
importance of religion, language, and traditions in distinguishing a minority
community from the rest of the population in holding that:
By tradition, which plays so important a part in Eastern countries, the ‘community’ is a
group of persons living in a given country or locality, having a race, religion, language and
traditions of their own and united by this identity of race, religion, language and traditions
in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form
of worship, ensuring the instruction and upbringing of their children in accordance with the
spirit and traditions of their race and rendering mutual assistance to each other.46
In its Advisory Opinion on Rights of Minorities in Upper Silesia (Minority Schools) the
PCIJ recognized the right of every national to declare freely according to their
conscience and on their personal responsibility whether or not they belong to a racial,
linguistic, or religious minority and to declare the language of a pupil or child for
whose education they are legally responsible.47 Moreover, according to the Permanent
Court, such a declaration could be subject to no verification, dispute, pressure, or
hindrance whatsoever on the part of the authorities.48 Basically, this finding of the
Permanent Court respects the right of the parents or legal guardian of a child
belonging to a minority to choose the language of education of that child. The right
of parents or guardians to choose a child’s language of education was reconfirmed a
few years later in the Access to German Minority Schools in Upper Silesia case.49
The cultural rights conferred on minorities under the minorities treaties in
function of preserving their specific identity and further elaborated in the case
law of the PCIJ have found expression in several international human rights
instruments. A general provision to this end is Article 27 of the 1966 International
Covenant on Civil and Political Rights (ICCPR).50 A similarly worded provision is

46 Greco-Bulgarian ‘Communities’ (n 15) 21 and 33.
47 Rights of Minorities in Upper Silesia (Minority Schools) (1028) PCIJ Ser A No 15, 46.
48 Rights of Minorities in Upper Silesia (Minority Schools) (n 47) 47.
49 Access to German Minority Schools in Upper Silesia (1931) PCIJ Ser A/B No 40, 20.
50 Art 27 of the ICCPR reads: ‘In those States in which ethnic, religious or linguistic minorities
exist, persons belonging to such minorities shall not be denied the right, in community with the other
members of their group, to enjoy their own culture, to profess and practise their own religion, or to use
their own language.’
Article 30 of the 1989 United Nations Convention on the Rights of the Child,
which provides that in those states in which ethnic, religious, or linguistic minor-
ities or persons of indigenous origin exist, a child belonging to such a minority or
who is indigenous shall not be denied the right, in community with other members
of his or her group, to enjoy his or her own culture, to profess and practise his or her
own religion, and to use his or her own language. More far-reaching provisions with
regard to the right to education of minorities are included in the European Charter
for Regional or Minority Languages of November 1992.51 The safeguards dis-
cussed in the case law of the PCIJ concerning equality before the law and equal
protection of the law and the prohibition of adverse discrimination are included in
the 1995 Framework Convention for the Protection of National Minorities.52 The
Framework Convention provides strong guarantees also in the field of education.53
A number of these safeguards are included in the 1992 UN Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities.54
Another important finding of the PCIJ with regard to the right of minorities to
preserve their identity is that acknowledging the obligation of a state to allow
minorities to establish and maintain their own educational institutions.55 Obvi-
ously, in the absence of such a right the ability of a minority to pass on from
generation to generation their language, culture, and religion would be severely
curtailed. Article 13 of the 1995 Framework Convention for the Protection of
National Minorities reflects this finding, in providing that within the framework of
their education systems, states parties shall recognize that persons belonging to a
national minority have the right to set up and to manage their own private
educational and training establishments.56
51 See esp Art 8 on Education. Twenty-five states members of the Council of Europe are party to
the European Charter for Regional or Minority Languages. For the full text of this instrument see
<http://conventions.coe.int/treaty/en/Treaties/Html/148.htm> (accessed 17 May 2013).
52 Under Art 4 of the Framework Convention for the Protection of National Minorities the states
parties undertake to guarantee to persons belonging to national minorities the right of equality before
the law and of equal protection of the law. This article explicitly prohibits any discrimination based on
belonging to a national minority. The states parties also undertake to adopt, where necessary, adequate
measures in order to promote, in all areas of economic, social, political, and cultural life, full and
effective equality between persons belonging to a national minority and those belonging to the majority
by taking due account of the specific conditions of the persons belonging to national minorities. The
third paragraph of Art 4 provides that positive measures adopted shall not be considered an act of
discrimination. For more on the protection of minorities within the framework of the Council of
Europe see <http://www.coe.int/minorities> (accessed 17 May 2013).
53 See the Commentary on Education under the Framework Convention for the Protection
of National Minorities, Advisory Committee on the Framework Convention for the Protection of
National Minorities, ACFC/25DOC(2006)002, March 2006, <http://www.coe.int/t/dghl/monitor
ing/minorities/3_fcnmdocs/pdf_commentaryeducation_en.pdf> (accessed 17 May 2013).
54 GA Res 47/135, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities (18 December 1992). For the full text of the Declaration see <http://www.
ohchr.org/Documents/Publications/GuideMinoritiesDeclarationen.pdf> (accessed 17 May 2013).
56 It should be noted, however, that this article provides that the exercise of this right does not entail
any financial obligation for the states parties.

2.4 Interim observations on the PCIJ

The PCIJ’s contribution to protecting the rights of minorities is multifaceted and
its findings cover both procedural and substantive legal issues. In explaining the aim
and purpose of the minority treaties, the PCIJ emphasized the close relationship
between these treaties and the preservation of peace. From an institutional perspec-
tive, the Permanent Court supported a reading of minority treaties which recog-
nized the power of the Council of the League to consider and interpret the laws or
treaties on which the rights claimed to be infringed were dependent, so as to ensure
certain and effective international protection for the minority concerned. That
reading provided necessary institutional support to the minority protection system
of the League. By interpreting the meaning of equality in fact and in law in the
sense of an obligation on the part of the state to ensure genuine and effective
equality, the PCIJ laid the theoretical and legal basis for affirmative action. The
PCIJ applied the principle of equality of treatment not only between the minority
and the majority, but also between the minority elements themselves. The Per-
manent Court also clarified that in order for the prohibition against discrimination
to be effective, such prohibition must ensure the absence of discrimination in fact as
well as in law, that is, through legislation or the conduct of administration by state
authorities.
It is now generally accepted that the protection of national minorities and of the
rights and freedoms of persons belonging to those minorities form an integral
element of the international protection of human rights, and as such falls within the
scope of international cooperation.57 Another important contribution made by the
PCIJ was its interpretation of minorities treaties as laying down the minimum
guarantees which the state concerned is required to accord, while leaving the state at
liberty, either by means of domestic legislation or under a convention, to grant to
minorities more rights. The language of minimum rights or minimum standards is
routinely included as a provision in several important human rights instruments
adopted under the framework of the United Nations after 1945. Through its legal
findings on minority rights the PCIJ also rendered its modest contribution to the
cause of peace, albeit one that could not avoid the outbreak of the Second World
War.
The PCIJ did not simply interpret the fairly ambitious minorities treaties agreed
after World War I; through its legal findings it also contributed significantly to
laying the foundations and the standards for the present-day international legal
framework on minority protection. Nonetheless, the case law of the PCIJ seems
generally neglected and subject to little attention, except in specialized scholarly
writings. The reasons for this may be of a political or purely practical nature. From a
political standpoint, perhaps the demise of the League caused the case law of the
PCIJ to be perceived as tainted by the League’s weak legacy. Moreover, there still
57 Art 1 of the Council of Europe Framework Convention on National Minorities of 1995 (ETS
No 157). For more information see <http://www.coe.int/t/dghl/monitoring/minorities/default_en.

asp> (accessed 17 May 2013).
exists a general hesitance on the part of international adjudicatory mechanisms to
refer to the case law of other international adjudicatory mechanisms. On a
practical level, not much attention is devoted to the case law of the PCIJ probably
because of a general lack of familiarity with it. Also, until recently, when the
publications of the PCIJ were made electronically available through the ICJ’s
website, quick and easy access to them remained fairly limited. Otherwise, it
is difficult to explain the lack of reference to relevant findings of the PCIJ in
the relevant case law of the European Court of Human Rights,58 the work of the
Human Rights Committee,59 and the thematic commentaries issues by the
Advisory Committee on the Framework Convention for the Protection of Na-
tional Minorities.60
3. The rights of peoples through the lens of the ICJ

While there are several international treaties which acknowledge that peoples enjoy
some broad rights, it remains fairly elusive what the scope and parameters of those
rights are and who is entitled to claim them on behalf of the peoples concerned.61
In any event, under Article 34 of the ICJ Statute, only states—not peoples—can be
parties to cases brought before the Court. So far, only two entities have been
allowed to submit their views to the Court in cases which concerned them, namely
the PLO as representative of the Palestinian people and the Kosovar authorities
who had declared the independence of Kosovo on 17 February 2008.62 The Court
58 See eg Gorzelik et al v Poland (Application no 44158/98) Judgment of 17 February 2004
(ECtHR (GC)). For a detailed discussion of the work of the European Court of Human Rights on
minority issues see, inter alia, G Pentassuglia, ‘The Strasbourg Court and Minority Groups: Shooting
in the Dark or a New Interpretive Ethos?’ (2012) 19 Intl J Minority and Group Rights 1.
59 See General Comment No 23, ‘The Rights of Minorities’, Art 27, CCPR/C/21/Rev.1/Add.5,
<http://www2.ohchr.org/english/bodies/hrc/comments.htm> (accessed 17 May 2013).

60 See the Advisory Committee on the Framework Convention for the Protection of National
Minorities, thematic commentaries on Education, and that on the Effective Participation of Persons
Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs under
the Framework Convention for the Protection of National Minorities, respectively documents ACFC/
25DOC(2006)002 of March 2006 and ACFC/31DOC(2008)001 of May 2008.
61 The UN Charter includes a couple of references to the principle of equal rights and self-
determination of peoples, as well as references to the duties of states towards peoples living in non-
self-governing and trust territories. Art 1 common to the two International Covenants (ie, on civil and
political rights and on economic, social, and cultural rights) provides inter alia 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. All peoples may, for their own ends, freely
dispose of their natural wealth and resources without prejudice to any obligations arising out of
international economic co-operation, based upon the principle of mutual benefit, and international
law. In no case may a people be deprived of its own means of subsistence.’
62 For the sake of clarity it must be added that although they are not state members of the UN, both
entities appeared in the course of advisory proceedings as parties that could provide the Court with
pertinent information. See, respectively, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (Order) [2003] ICJ, and Accordance with International Law of the Unilateral
Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Order) [2008]
ICJ Rep 410.
appears somewhat lenient in allowing entities that can provide useful information
to it to participate in the course of advisory proceedings.
The only case before the ICJ where rights of minorities have come to the fore is
the Georgia v Russia case of August 2008. In setting forth the basis for the dispute
the ICJ stated that the disputes between these two countries undoubtedly did arise
between June 1992 and August 2008 in relation to events in Abkhazia and South
Ossetia, which involved among others alleged breaches of international humanitar-
ian law and of human rights, including the rights of minorities.63 Finding that it
lacked jurisdiction, the Court did not address Georgia’s claims that this case was
about the ethnic cleansing, as a form of racial discrimination, of ethnic Georgians
and other minorities from regions within Georgian territory (regions of Abkhazia
and South Ossetia), save for mentioning the Moscow agreement of 1992 and the
Sochi agreement of 1993 which confirmed the application of international human
rights law including rules against discrimination.64
The following subsections deal respectively with the ICJ’s contribution to
interpreting and developing the right of peoples to self-determination and to use
their natural resources, as well as to clarifying obligations incumbent upon states
under certain peremptory norms of international law, namely the prohibition of
genocide and of racial discrimination and apartheid.
3.1 The right of peoples to self-determination

The ICJ has clarified a number of issues regarding the right of peoples to self-
determination in the context of the process of decolonization.65 Its contribution
relates to the external aspect of self-determination concerning the right of peoples to
freely determine their political status. The right of peoples to self-determination is
one of the main principles of international law enshrined in the Charter of the
United Nations and the two 1966 International Covenants, as well as in other
international law instruments. From an institutional perspective the Court has
supported the work of the General Assembly and the Security Council concerning
63 Application of the International Convention on the Elimination of All Forms of Racial Discrimin-
ation (Georgia v Russia) (Preliminary Objections) Judgment of 1 April 2011 (<http://www.icj-cij.org/

docket/files/140/16398.pdf> (accessed 17 May 2013)).
64 Georgia v Russia (n 63) paras 40, 44.
65 For a detailed discussion see, inter alia, A Cassese, ‘The International Court of Justice and the
Rights of Peoples to Self-Determination’ in V Lowe and M Fitzmaurice (eds), Fifty Years of the
International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: CUP, 1996)
351–63; J Crawford, ‘The General Assembly, The International Court and Self-Determination’ in
Lowe and Fitzmaurice, 585–606; TD Musgrave, Self Determination and National Minorities (Oxford:
OUP, 2002) 77–90; J Summers, Peoples and International Law: How Nationalism and Self-Determin-
ation Shape a Contemporary Law of Nations (Dordrecht: Martinus Nijhoff, 2007) 255–73, 301–17;
G Zyberi, The Humanitarian Face of the International Court of Justice: Its Contribution to Interpreting
and Developing International Human Rights and Humanitarian Law Rules and Principles (Antwerp:
Intersentia, 2008) 102–34; G Zyberi, ‘Self-Determination through the Lens of the International Court
of Justice’ [2009] NILR 429. More generally on the rights of peoples see J Crawford and H Kruuk
(eds), The Rights of Peoples (Oxford: OUP, 1992); Brölmann et al (n 1); P Alston (ed), Peoples’ Rights
(Oxford: OUP, 2001).
the realization of the right of peoples to self-determination.66 Thus, the Court has
acknowledged the right of the General Assembly to exercise supervisory compe-
tences over the territories under the trusteeship system and the power to terminate
mandate and trusteeship agreements.67 Dame Rosalyn Higgins, former President of
the ICJ, has noted that the legal findings of the ICJ and successive General Assembly
resolutions have facilitated the articulation and acceptance of self-determination as a
justiciable right, and not solely as a mere political aspiration.68 In 1960 the General
Assembly emphasized the importance of the process of decolonization in its Declar-
ation on the Granting of Independence to Colonial Countries and Peoples (the
Decolonization Declaration) and in other resolutions it reaffirmed the importance of
the universal realization of the right of peoples to self-determination for the effective
guarantee and observance of human rights.69 In its work the ICJ has been mindful
of and has taken into account the development over time of the law on self-
determination of peoples and the activities of the main UN organs in this regard.70
Future resolutions of the General Assembly on self-determination issues may benefit
from paying due attention to relevant legal findings of the ICJ on this matter. And in
General Assembly resolutions concerning the right to self-determination in specific
cases, reference might be made to relevant ICJ decisions in a more consistent
manner. Notably, the General Assembly resolution adopted on the issue of self-
determination of Palestine does refer to the Court’s Advisory Opinion of 2004,71
whereas that on Western Sahara does not.72
The Court has made a significant legal contribution to the process of decoloniza-
tion of South West Africa (Namibia) by finding that the ultimate objective of the
sacred trust referred to in Article 22, paragraph 1 of the Covenant of the League of
Nations was the self-determination and independence of the people concerned.73
With regard to the result of the process of decolonization, the Court clarified that
General Assembly Resolution 1541 (XV) contemplated for non-self-governing
territories more than one possibility, namely:
66 For a detailed discussion see inter alia M Amr, The Role of the International Court of Justice as the
Principal Judicial Organ of the United Nations (The Hague: Kluwer, 2003) 146–8, 152–5.
67 See, respectively, International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep
137; Namibia (n 3) para 105.

68 See R Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon
Press, 1994) 113.

69 GA Res 1514 (XV) (14 December 1960). For more information on the United Nations and
Decolonization, see <http://www.un.org/en/decolonization/index.shtml> (accessed 17 May 2013).

For resolutions on self-determination see eg GA Res 65/201, Universal Realization of the Right of
Peoples to Self-Determination (21 December 2010).
70 Namibia (n 3) 31–2, para 53. The ICJ held: ‘These developments leave little doubt that the
ultimate objective of the sacred trust was the self-determination and independence of the peoples
concerned. In this domain, as elsewhere, the corpus iuris gentium has been considerably enriched, and
this the Court, if it is faithfully to discharge its functions, may not ignore.’
71 See GA Res 66/17, Peaceful Settlement of the Question of Palestine (30 November 2011).
72 See GA Res 66/86, Question of Western Sahara (9 December 2011).
73 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) [2004] ICJ Rep 136, para 70; Namibia (n 3) paras 52–3.
(a) emergence as a sovereign independent state;

(b) free association with an independent state; or
(c) integration with an independent state.74
Whatever the end-result of the process, according to the Court there were two
important requirements for the exercise of the principle of self-determination by a
people, namely that the expression thereof be (a) free, ie, be taken without outside
interference and, (b) genuine, ie, be the expressed will of the people of the territory
concerned.75 In acknowledging the broad powers of the General Assembly, the ICJ
has made clear its view that the validity of the principle of self-determination,
defined as the need to pay regard to the freely expressed will of peoples, was not
affected by the fact that in certain cases the General Assembly had dispensed with
the requirement to consult the inhabitants of a given territory.76
In 2010 the Court recognized the important place of this right in the framework
of international law by stating that ‘one of the major developments of international
law during the second half of the twentieth century has been the evolution of the
right of self-determination’.77 According to the ICJ, Article 1 common to the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and
the ICCPR reaffirms the right of all peoples to self-determination, and imposes
upon the states parties the obligation to promote the realization of that right and to
respect it, in conformity with the provisions of the United Nations Charter.78 On
several occasions the ICJ has noted that the right of peoples to self-determination is
a right which has an erga omnes character.79 According to the ICJ, the erga omnes
character of the right to self-determination entails the duty of every state to
promote, through joint and separate action, the realization of the principle of
equal rights and self-determination of peoples, in accordance with the provisions
of the Charter, and also to render assistance to the United Nations in implementing
this principle.80 Taking measures which negatively impact a people’s right to self-
determination obviously amounts to a violation of a state’s obligation to respect this
right. The Court found such a violation with regard to the wall constructed by
Israel in the Occupied Palestinian Territories.81
As far as the obligations on the part of other states were concerned, in the Wall
case the Court found that they were under an obligation not to recognize the illegal
situation resulting from the construction of the wall, not to render aid or assistance
in maintaining the situation created by such construction, and to see to it that any
74 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 para 57.

75 Western Sahara (n 74) para 55. 76 Western Sahara (n 74) para 59.
Kosovo (Advisory Opinion) [2010] ICJ Rep 403. The Court did not, however, find it necessary to dwell
upon the application of this principle to the situation in Kosovo. For a discussion of this right in the
context of Kosovo see the Separate Opinion of Judge Cançado Trindade.
78 Wall (n 73) para 88.
79 See, inter alia, East Timor (Portugal v Australia) [1995] ICJ Rep 90, para 29; Wall (n 73) paras 88
and 89. On the erga omnes nature of self-determination see, inter alia, Summers (n 65) 393–6.
impediment to the exercise by the Palestinian people of its right to self-determination
resulting from the construction of the wall was brought to an end.82 These findings
of the Court leave unanswered the question of what exactly the erga omnes character
of the right to self-determination adds to the scope of state obligations arising under
this right which is different from other international law norms. Also unanswered is
the question of whether those erga omnes obligations which arise for states with
respect to the right to self-determination are obligations of conduct or obligations
of result.
The ICJ has noted that different views exist among states on whether the
international law of self-determination confers upon part of the population of
an existing state a right to separate from that state, outside the context of non-
self-governing territories and peoples subject to alien subjugation, domination, and
exploitation.83 Those differences of position among states were also expressed in
the Kosovo case with regard to whether international law provides for a right of
‘remedial secession’ and, if so, under what circumstances.84 Since there are several
cases of de facto secession of parts of existing countries, it is possible that at some
point in the future cases of this nature might end up before the ICJ. The sensitivity
of these issues and the potential of the ICJ to develop the law in this regard are
demonstrated by the considerable number of states that participated in the legal
proceedings of the Kosovo case.85
3.2 The right of peoples to make use of their own natural resources
The right of peoples to make use of their own natural resources is very important.
Article 1, paragraph 2, common to the two 1966 International Human Rights
Covenants, provides that all peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any obligations arising out of
international economic cooperation, based upon the principle of mutual benefit,
and international law. The Court has found that the principle of permanent
sovereignty over natural resources is a principle of customary international law.86
In the Armed Activities case the Court dealt for the first time with the issue of the
prohibition of illegal exploitation, plundering, and looting of natural resources as
part of the obligations imposed under international humanitarian law. The Court
found that Uganda had violated its duty of vigilance by not taking adequate
measures to ensure that its military forces did not engage in the looting, plundering,
82 Wall (n 73) para 150. 83 Kosovo (n 77) para 82.

84 Kosovo (n 77) paras 82–3.
85 Thirty-six member states of the United Nations and Kosovo filed written statements in the first
written phase and fourteen member states of the United Nations and Kosovo filed written statements
in the second written phase. Twenty-eight member states of the United Nations (including the five
permanent members of the Security Council) and Kosovo presented oral statements before the Court.
86 Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168, para 244.
Para 7 of GA Res 1803 (XVII) (14 December 1962) reads: ‘Violation of the rights of peoples and
nations to sovereignty over their natural wealth and resources is contrary to the spirit and principles of
the Charter of the United Nations and hinders the development of international co-operation and the
maintenance of peace.’
and exploitation of the natural resources of the Democratic Republic of the Congo
(DRC).87 According to the Court, Uganda was internationally responsible for
failing to comply with its obligations under Article 43 of the Hague Regulations
of 1907 as an occupying Power in Ituri in respect of all acts of looting, plundering,
and exploitation of natural resources in the occupied territory.88 The ICJ also
observed that the fact that Uganda was the occupying Power in the Ituri district
extended Uganda’s obligation to take appropriate measures to prevent the looting,
plundering, and exploitation of natural resources in the occupied territory to cover
private persons in this district and not only members of the Ugandan military
forces.89
In the East Timor case Portugal contended that Australia had violated its
obligation to respect Portugal’s status as administering Power, East Timor’s status
as a non self-governing territory, and the right of the people of the Territory to self-
determination and to permanent sovereignty over its wealth and natural resources,
by entering into a treaty with Indonesia in 1989 over the ‘Timor Gap’.90 The
Court found that it could not exercise jurisdiction over this case, since in doing so it
would have to rule upon the lawfulness of Indonesia’s conduct as a prerequisite for
deciding on Portugal’s contention, in the absence of Indonesia’s consent.91 How-
ever, the Court deemed Portugal’s assertion of the right of self-determination of
peoples having a jus cogens character as irreproachable. The right to freely dispose of
their natural resources is a corollary of the right of peoples to self-determination.
3.3 Peremptory norms of international law

for the protection of groups
The ICJ has dealt with several international law norms aimed at the protection of
peoples and minorities which are of an erga omnes character and whose violation
entails state responsibility, as well as individual criminal responsibility.92 The
prohibition of genocide and of racial discrimination and apartheid practices are
the most prominent amongst these norms. In its celebrated dictum in the Barcelona
Traction case, the Court stated that obligations erga omnes in contemporary
international law derive, among others, from the outlawing of acts of aggression,
and of genocide, as also from principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimination.93 It is
not entirely coincidental that the 1948 Genocide Convention and the 1965 UN
87 DRC v Uganda (n 86) para 246. 88 DRC v Uganda (n 86) para 250.
89 DRC v Uganda (n 86) para 248. 90 East Timor (n 79) para 33.
91 East Timor (n 79) 105, para 35.
92 More generally on the ICJ and human rights see Bruno Simma’s contribution to this volume at
Chapter 13, and ‘Mainstreaming Human Rights: The Contribution of the International Court of
Justice’, Journal of Int’l Dispute Settlement 3 (2012), 7–29. See also G Zyberi, ‘Human Rights in the
International Court of Justice’ in MA Baderin and M Ssenyonjo (eds), International Human Rights
Law: Six Decades after the UDHR and Beyond (Aldershot: Ashgate, 2010) 289–304.
[1970] ICJ Rep 3, para 33.

Convention on the Elimination of Racial Discrimination were the first human
rights instruments to be adopted under the framework of the UN. Genocide, racial
discrimination, and apartheid have been strongly condemned by the ICJ, as well as
the other main organs of the UN.94 Over time these important rules for the
protection of peoples and minorities have acquired an erga omnes character and
even the status of jus cogens. The breach of these norms has also been systematically
qualified as an international crime, that is, as a serious breach of an obligation owed
to the international community as a whole.95
The jus cogens status of these norms does not mean, however, that the ICJ can
automatically exercise jurisdiction over situations where violations of these norms
have occurred which gravely affect the rights of concerned peoples and minorities.
The Court has accepted that the prohibition of genocide is a jus cogens norm, while
clarifying that the fact that a dispute relates to a state’s compliance with a jus cogens
norm cannot of itself provide a basis for the jurisdiction of the Court.96 The Court
has been adamant in emphasizing that its jurisdiction is only based on the consent
of the parties. Since peoples or minorities do not have direct access to the Court,
legal action by third states, in the form of actio popularis, represents a potentially
useful means to bring before the Court situations of serious violations of their
rights. However, the ICJ seems rather reluctant to adopt a broad interpretation of
actio popularis.97 And even if the Court were able and willing to entertain cases on
this basis, the paucity of use of inter-state complaints included in international
human rights instruments shows that peoples and minorities cannot reasonably put
much hope in this option. The ICJ’s case law relating to the prohibition of genocide
and the prohibition of racial discrimination and of apartheid are dealt with in the
following subsections.
3.3.1 The prohibition of genocide

The 1948 Genocide Convention provides for the prevention and the punishment
of the crime of genocide. As the ICJ noted, while referring to a December 1946
resolution of the General Assembly, genocide is a crime under international law
involving a denial of the right of existence of entire human groups, a denial which
shocks the conscience of mankind and results in great losses to humanity, and
which is contrary to moral law and to the spirit and aims of the United Nations.98
In adopting the object and purpose test of treaty interpretation, which later became
94 See GA Res 2202A (XXI) (16 December 1966); and SC Res 556 (23 October 1984).
95 See Vaurs-Chaumette (n 1) 998–9.
96 DRC v Rwanda (n 6) para 64.
97 South West Africa Cases (Liberia v South Africa and Ethiopia v South Africa) (Second Phase) [1966]
ICJ Rep 6, para 88. In this Judgment the ICJ ruled out a conception of actio popularis pursuant to
which every member of a community would be entitled to vindicate community, or ‘public’ interests.
While that initial position seems to have been implicitly reversed in later decisions, notably Barcelona
Traction (n 93), no other cases based on actio popularis have been brought before the Court.
(Advisory Opinion) [1951] ICJ Rep 15, 23. The Court was referring to GA Res 96 (I) (11 December
1946).
part of Article 31 of the 1969 Vienna Convention on the Law of Treaties, the
Court indicated that this test prevented states from entering any reservations they
choose with regard to a convention by virtue of their sovereignty.99 That balanced
approach to reservations is important not only for the Genocide Convention but
also for other international human rights treaties.
In clarifying the character of the Genocide Convention, the Court noted that
this Convention was intended by the General Assembly and by the contracting
parties to be definitely universal in scope and manifestly adopted for a purely
humanitarian and civilizing purpose.100 As the Court pointed out, it is difficult
to imagine a convention that has a greater humanitarian and civilizing character,
since its object is on the one hand to safeguard the very existence of certain human
groups and on the other to confirm and endorse the most elementary principles
of morality.101 According to the Court, the intrinsic character of the Genocide
Convention gave rise to two legal consequences. First, the principles underlying the
Convention are principles which are recognized by civilized nations as binding on
states, even without any conventional obligation.102 This finding of the Court
recognizes the customary law status that the prohibition of genocide had already
achieved. The second consequence which the Court established as flowing from the
character of the Genocide Convention was the universal character both of
the condemnation of genocide and of the cooperation required ‘in order to liberate
mankind from such an odious scourge’.103 Rightfully, the Court emphasized
the necessity of international cooperation in order to prevent and punish the
crime of genocide.
The Court has held that acts of genocide have to be directed against a collection
of people who have a particular group identity.104 Through this finding the Court
has clarified that the targeted group has to be defined in positive terms according to
the specific characteristic protected under the Genocide Convention which con-
nects the group, namely their national, ethnical, racial, or religious identity.
Additionally, the Court has also observed that genocide may be found to have
been committed where the intent is to destroy the group within a geographically
limited area.105 With regard to the issue of ‘cultural genocide’, the Court has
concluded that the destruction of historical, religious, and cultural heritage cannot
be considered to be a genocidal act within the meaning of Article II of the Genocide
Convention.106 At the same time, however, the ICJ endorsed the observation made
by the Trial Chamber of the International Criminal Tribunal for the former
Yugoslavia (ICTY) in the Krstić case that ‘where there is physical or biological
destruction there are often simultaneous attacks on the cultural and religious

106 Bosnian Genocide (n 6) para 344 (citing Prosecutor v Krstić ‘Judgment’ (Trial Chamber)
(2 August 2001) IT-98-33-T (ICTY), para 580).

property and symbols of the targeted group as well, attacks which may legitimately
be considered as evidence of an intent to physically destroy the group’.107 While
emphasizing that genocide aims at the physical elimination of the group, the Court
has allowed for acts of ‘cultural’ genocide to be taken into account for the purpose
of proving the genocidal intent of the perpetrators.
In the Legality of the Threat or Use of Nuclear Weapons case, some states
contended that the prohibition against genocide, contained in the Genocide
Convention, is a relevant rule of customary international law which the Court
must apply; that the number of deaths occasioned by the use of nuclear weapons
would be enormous; that the victims could, in certain cases, include persons of a
particular national, ethnic, racial, or religious group; and that the intention to
destroy such groups could be inferred from the fact that the user of the nuclear
weapon would not take into account the well-known effects of the use of such
weapons. Through its findings the Court clarified that the prohibition of genocide
would be pertinent, if the recourse to nuclear weapons did indeed entail the
element of intent, towards a group as such, required by the Genocide Conven-
tion.108 In the view of the Court, it would only be possible to arrive at such a
conclusion having taken due account of the circumstances specific to each case.109
Taken together, these findings of the Court highlight the importance and necessity
of establishing conclusively the special intent required for the crime of genocide, to
destroy in whole or in part a national, ethnic, racial, or religious group as such.
In dealing with the issue of international responsibility for this crime, the Court
has held that states party to the Genocide Convention are bound by the obligation
under the Convention not to commit, through their organs or persons or groups
whose conduct is attributable to them, genocide and the other acts enumerated in
Article III.110 The ICJ’s finding on the duty of states to prevent genocide is also
important from the perspective of protecting the rights of peoples. The Court
formulated this duty in the following way:
The obligation on each contracting State to prevent genocide is both normative and
compelling. It is not merged in the duty to punish, nor can it be regarded as simply a
component of that duty. It has its own scope, which extends beyond the particular case
envisaged in Article VIII, namely reference to the competent organs of the United Nations,
for them to take such action as they deem appropriate. Even if and when these organs have
been called upon, this does not mean that the States parties to the Convention are relieved of
the obligation to take such action as they can to prevent genocide from occurring, while
respecting the United Nations Charter and any decisions that may have been taken by its
competent organs.111
Further, the Court has clarified that the obligation to prevent genocide is one of
conduct and not one of result, in the sense that a state cannot be under an
107 Krstić (n 106) para 580.

108 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226,
para 26.
109 Nuclear Weapons (n 108). 110 Bosnian Genocide (n 6) para 179.
obligation to succeed, whatever the circumstances, in preventing the commission of

genocide: the obligation of states parties is rather to employ all means reasonably
available to them, so as to prevent genocide as far as possible.112 According to the
Court, a state’s performance can be judged through the ‘due diligence’ test, which
involves assessing whether a state has manifestly failed to take all measures within its
power to prevent genocide.
The various parameters to be taken into account in that assessment include the
capacity to influence effectively the actions of persons likely to commit, or already
committing, genocide, which depends, among other things, on the geographical
distance of the state concerned from the scene of the events, and on the strength of
the political links, as well as links of all other kinds, between the authorities of that
state and the main actors in the events.113 This legal finding would seem to indicate
that, prima facie, neighbouring or regional states have more responsibility than
other states, and that the more powerful states, including the five permanent
members of the Security Council, share more responsibility since they have an
elevated capacity to influence the course of action of the main actors in the events.
Although implicitly, the Court has also introduced the issue of shared state
responsibility for the prevention of genocide by referring to what every state should
do to prevent genocide. Thus, the ICJ has held that it is irrelevant whether the state
whose responsibility is in issue claims, or even proves, that even if it had employed
all means reasonably at its disposal, they would not have sufficed to prevent the
commission of genocide.114 For the Court that would be irrelevant to the breach of
the obligation of conduct, since the possibility remains that the combined efforts of
several states, each complying with its obligation to prevent, might have achieved
the result—averting the commission of genocide—which the efforts of only one
state were insufficient to produce.115 In order for the Court to assign responsibility
to a state for failing to prevent genocide, it is enough that the state was aware, or
should normally have been aware, of the serious danger that acts of genocide would
be committed.116 Obviously, the inter-related tests of ‘due diligence’, ‘manifest
failure to take action’, and the standard of state awareness (‘was aware, or should
normally have been aware, of the serious danger that acts of genocide would be
committed’) remain to be applied on a case-by-case basis by the Court. In any case,
the Court has already spelled out in general terms what is expected of states with
regard to the prevention of genocide and how their conduct will be assessed.
Besides the duty to prevent genocide, the Court has also clarified the duty of
states to punish persons suspected of having committed genocide. In interpreting
112 Bosnian Genocide (n 6) para 430. 113 Bosnian Genocide (n 6) para 430.
115 Bosnian Genocide (n 6) para 430. For a more detailed discussion of the ICJ and the responsibility
to protect doctrine see inter alia G Zyberi, ‘The Responsibility to Protect Through the International
Court of Justice’ in A Nollkaemper and J Hoffmann (eds), Responsibility to Protect: From Principle to
Practice (Amsterdam: AUP, 2012) 305–17; G Zyberi, ‘The International Court of Justice’ in G Zyberi
(ed), An Institutional Approach to the Responsibility to Protect (Cambridge: CUP, 2013) 365–85.
Article VI of the Genocide Convention, which deals with the prosecution of
persons by domestic or international courts, the Court found that this article
only obliges the contracting parties to institute and exercise territorial criminal
jurisdiction.117 The Court added that while this article certainly does not prohibit
states, with respect to genocide, from conferring jurisdiction on their criminal
courts based on criteria other than where the crime was committed which are
compatible with international law, in particular the nationality of the accused, it
does not oblige them to do so.118 With regard to the obligation of states to
cooperate with the ‘international penal tribunal’ mentioned in Article VI of the
Genocide Convention, the Court has clarified that the notion of an ‘international
penal tribunal’ within the meaning of Article VI must at least cover all international
criminal courts created after the adoption of the Convention (at which date no such
court existed) which are of potentially universal scope, and competent to try the
perpetrators of genocide or any of the other acts enumerated in Article III.119 That
general interpretation of Article VI lays down a prima facie obligation of states to
cooperate with international criminal courts and tribunals established to prosecute
perpetrators of genocide, including the International Criminal Court. In order to
grant reparations to the injured party on the basis of a state’s failure to prevent
genocide, the Court requires a sufficiently direct and certain causal nexus between
the wrongful act, that is, the breach of the obligation to prevent genocide, and the
injury suffered.120 Through that legal finding the Court has established a rather
high threshold for awarding reparations.
3.3.2 The prohibition of racial discrimination and apartheid

The Court has recognized that the prohibition of racial discrimination is a jus cogens
norm.121 In its Advisory Opinion on South West Africa (Namibia) in 1971, the ICJ
noted that South Africa had pledged itself in Namibia ‘to observe and respect, in a
territory having an international status, human rights and fundamental freedoms
for all without distinction as to race’.122 Subsequently, the Court found that
establishing and enforcing distinctions, exclusions, restrictions, and limitations
exclusively based on grounds of race, colour, descent, or national or ethnic origin
which constituted a denial of fundamental human rights was a flagrant violation of
the purposes and principles of the UN Charter.123 Through these findings the
Court added its authoritative voice to the wide condemnation by the international
117 Bosnian Genocide (n 6) para 442. 118 Bosnian Genocide (n 6) para 442.
120 For a more detailed discussion of the issue of reparations see, inter alia, C McCarthy,
‘Reparation for Gross Violations of Human Rights Law and International Humanitarian Law at the
International Court of Justice’ in C Ferstman et al (eds), Reparations for Victims of Genocide, Crimes
against Humanity and War Crimes: Systems in Place and Systems in the Making (Dordrecht: Martinus
Nijhoff, 2009) 283–311; G Zyberi, ‘The International Court of Justice and Applied Forms of
Reparation for International Human Rights and Humanitarian Law Violations’ (2011) 7 Utrecht
L Rev 204.
121 DRC v Rwanda (n 6) para 78. 122 Namibia (n 3) para 131.
community of measures establishing limitations, exclusions, or restrictions for the

members of the indigenous population groups in respect of their participation in
certain types of activities, fields of study or of training, labour, or employment,
as well as submitting that part of the population to restrictions or exclusions
on residence and movement in large parts of Namibia.124 Moreover, and most
importantly, the Court anchored the principle of prohibition of discrimination in
the Charter of the United Nations, as a corollary of the principle of equal rights of
peoples. The prohibition of discrimination is a general principle of international
law, which is embedded in all international human rights law instruments.
In interpreting Article 22 of the UN Convention on the Elimination of Racial
Discrimination (CERD) the Court held that the express choice of two modes of
dispute settlement, namely, negotiations or resort to the special procedures under
CERD, suggested an affirmative duty to resort to them prior to seizing the Court.125
It is difficult to see, however, how following such protracted procedures, clearly
envisioned for a peacetime situation, would be of any use in the context of a fast
developing armed conflict. And should it be compulsory to exhaust or have resort to
remedies which under the circumstances ruling at the time would seem to be prima
facie non-effective?126 In its 2008 order on provisional measures the Court had
indicated that both parties within South Ossetia and Abkhazia and adjacent areas in
Georgia should refrain from any act of racial discrimination against persons, groups of
persons, or institutions; abstain from sponsoring, defending, or supporting racial
discrimination by any persons or organizations; do everything in their power,
whenever and wherever possible, to ensure, without distinction as to national or
ethnic origin, their security, freedom of movement, and residence within the border
of the state, the protection of the property of displaced persons and of refugees.127
The Court also required that the authorities of both states do everything in their
power to ensure that public authorities and public institutions under their control or
influence do not engage in acts of racial discrimination against persons, groups of
persons, or institutions.128 Perhaps this is the most comprehensive provisional
measures order given by the Court thus far with the aim of preventing racial
discrimination against individual persons and ethnic groups (minorities) and guar-
anteeing them a wide range of rights in a conflict situation.
3.4 Interim observations on the ICJ

How do the ICJ’s findings on self-determination compare to that of other ‘agents of
legal development’? In a general sense, the Court’s findings are reflected in the
124 Namibia (n 3) para 130. 125 Georgia v Russia (n 63) para 134.
126 Unfortunately, the ILC does not address this specific issue in its work on the ‘Effect of Armed
Conflict on Treaties’. The Draft Articles on the effects of armed conflicts on treaties with commen-
taries were adopted by the ILC at its 63rd session (2011), <http://untreaty.un.org/ilc/reports/2011/
english/chp6.pdf> (accessed 17 May 2013).
127 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v Russia) (Provisional Measures) [2008] ICJ Rep 353, para 149.
128 Georgia v Russia (Provisional Measures) (n 127) 353, para 149.
relevant general comments of the Human Rights Committee and the CERD with
respect to self-determination.129 The transformative potential of self-determination
has been realized through the political processes of decolonization, steered mainly
through the General Assembly. For its part, the ICJ has clarified a number of state
obligations arising under the right of peoples to self-determination and has inter-
preted the relevant supervisory and other competences of the General Assembly and
the Security Council. According to the Court, the right of peoples to self-determin-
ation has an erga omnes character. With regard to obligations of states to respect the
right of peoples to self-determination, the Court has pointed at the threefold duty
of states not to recognize an illegal situation impinging on this right, not to render
help in the maintenance of such a situation, and to promote the realization of the
right to self-determination, in accordance with the provisions of the United
Nations Charter. Another significant contribution with regard to this right is the
Court’s emphasis on the importance of respecting the free and genuine will of the
peoples concerned.
The ICJ has clarified that the obligation to prevent the commission of the crime
of genocide is imposed by the Genocide Convention on any state party which, in a
given situation, is able to contribute to restraining in any degree the commission
of genocide. By introducing the interrelated tests of ‘due diligence’, ‘manifest
failure to take action’, and the standard of state awareness as ‘was aware, or should
normally have been aware, of the serious danger that acts of genocide would be
committed’, the Court has laid down a number of somewhat specific, though not
sufficiently articulated, criteria for expected state behaviour concerning the duty to
prevent genocide. The Court has also clarified that acts of genocide have to be
directed against a collection of people who have a particular group identity, with the
genocidal intent to destroy them, even when the intent is to destroy the group
within a geographically limited area. With regard to the issue of ‘cultural genocide’,
the Court has found that the destruction of historical, religious, and cultural
heritage cannot be considered a genocidal act within the meaning of Article II of
the Genocide Convention, but such attacks could be considered as evidence of an
intent to physically destroy the group. Notably, the two ad hoc tribunals estab-
lished by the Security Council, the Tribunal for the former Yugoslavia and that for
Rwanda, have taken note of the Court’s 1951 Advisory Opinion on the customary
nature of the principle of prohibition of genocide as laid down in the Genocide
Convention, as well as other findings concerning different legal aspects of the crime
of genocide made by the Court in its 2007 Judgment in the Application of the
Genocide Convention case.130
129 It should be noted, however, that there are no direct references to findings of the ICJ in these
general comments. See CCPR, General Comment No 12: The right to self-determination of peoples
(Article 1), Twenty-first session, 1984; CERD, General Recommendation No 21: Right to self-
determination, Forty-eighth session, 1996.
130 See, inter alia, Prosecutor v Akayesu ‘ Judgment’ (Trial Chamber) (2 September 1998) ICTR-96-
4-T (ICTR), para 495. Trial Chamber I stated: ‘The Genocide Convention is undeniably considered
part of customary international law, as can be seen in the opinion of the International Court of Justice
on the provisions of the Genocide Convention, and as was recalled by the United Nations’ Secretary-
Other important legal developments for the protection of the rights of peoples
and minorities are the Court’s findings relating to the prohibition of racial discrimin-
ation and apartheid. The Court has held that the prohibition of racial discrimination
is a jus cogens norm, and that establishing and enforcing distinctions, exclusions,
restrictions, and limitations exclusively based on grounds of race, colour, descent, or
national or ethnic origin which constitute a denial of fundamental human rights is a
flagrant violation of the purposes and principles of the UN Charter. The ICJ has also
found that the principle of permanent sovereignty over natural resources is a
principle of customary international law. These findings are important because
they lay down certain obligations for states not only vis-à-vis their own populations,
but also vis-à-vis other peoples and minorities beyond their jurisdiction.
Through their case law, the PCIJ and the ICJ have rendered a significant contribu-
tion to interpreting and developing the international legal framework concerned
with fundamental rights of peoples and minorities. The PCIJ has dealt mainly with
the rights of minorities, whereas the ICJ has dealt with the rights of peoples more
generally. Although the PCIJ and the ICJ have avoided providing a comprehensive
definition of the concept of minorities and peoples, their findings concerning rights
accruing to them have left a recognizable and important mark in the development
of international law. The PCIJ provided institutional support to the Council of the
League in its supervisory function over the minority protection regime. Similar
institutional support was given by the ICJ to the General Assembly and the Security
Council in their activities in the context of the decolonization process. Moreover,
through its findings the ICJ established a link between the older mandates regime
of the League of Nations with the UN system, in order to ensure the international
supervision of the mandates and accountability on behalf of the peoples con-
cerned.131 A reading of the case law of the PCIJ and the ICJ reveals that these
international courts have kept the concepts of peoples and minorities separate,
despite their similarities. From a general perspective, minorities would be entitled
to a considerable degree of internal self-determination within an existing state,
whereas peoples enjoy the full spectrum of the right to self-determination.
Estimates suggest that 10 to 20 per cent of the world’s population belong to
minorities, which means that between 600 million and 1.2 billion people are in
need of special measures for the protection of their rights, given that minorities are
often among the most disadvantaged groups in society and their members are often
General in his Report on the establishment of the International Criminal Tribunal for the former
Yugoslavia.’ See also Prosecutor v Popović et al ‘Judgment’ (Trial Chamber) (10 June 2010) IT-05-88-T
(ICTY) paras 807, 808, 809, 812, 813, 814, 817, 819, 821, 822, 827, and 831 (footnotes 2910, 2911,
2913, 2916, 2925, 2926, 2929, 2934, 2937, 2940, 2943, 2944, 2958, 2968).
131 See, respectively, International Status of South West Africa (n 67) 136–7; Namibia (n 3) paras
56–7.
subject to discrimination and injustice and excluded from meaningful participation
in public and political life.132 These figures show that the rights of minorities
cannot be overlooked if we are to ensure just and stable societies. Minority rights
are increasingly recognized as an integral part of the United Nations’ work towards
the promotion and protection of human rights, sustainable human development,
and peace and security. The findings of the PCIJ in this regard provide support for
efforts to mainstream the consideration of minority issues within the framework of
the UN and other relevant international and regional mechanisms.
As demonstrated above, the effect of the legal findings of the ICJ is not strictly
limited to solving the dispute at hand, but, in the present complex framework of the
international legal system with its many adjudicatory mechanisms, these findings
influence to a considerable extent the practice of international law in a rather broad
context.133 In present international law practice the ICJ’s findings are an important
and authoritative source, bound to provide necessary guidance and to surface
regularly in decisions taken by a significant number of adjudicatory and supervisory
mechanisms concerned with the rights of peoples and minorities. The importance
of the findings of the ICJ is evident, since states routinely accept them as the most
authoritative statements on the status of a certain international law norm. By virtue
of its important position as one of the main organs of the UN and its principal
judicial organ, the decisions of the ICJ are taken note of by governments, other
relevant actors, and by the ILC in its work on progressive development and
codification of international law. While it is rather difficult to state with certainty
the effect of the ICJ’s findings in shaping international law in a certain area,
including the rights of peoples and minorities, it can be said that the case law of
the Court is attentively followed by states, international organizations, and other
relevant actors.
132 For a general overview of the issue of protection of minorities under international law and the
UN Guide on Minorities see <http://www.ohchr.org/EN/Issues/Minorities/Pages/MinoritiesGuide.

aspx> (accessed 17 May 2013).
133 For a more detailed discussion of the relationship of the ICJ with other international courts and
tribunals and quasi-judicial bodies, and the issue of cross-fertilization, see inter alia Zyberi 2008 (n 65)
343–430.
15
The International Court of Justice and
International Environmental Law
Malgosia Fitzmaurice
1. Introduction
Although the role of the International Court of Justice (ICJ or ‘the Court’) in
relation to international environmental law has expanded in recent years and there
are a number of ‘environmental’ cases already decided by, or pending before, it,
international environmental law remains something of ‘a poor relative’ in compari-
son to other areas of the Court’s jurisprudence (such as diplomatic protection, or
the law of territory1). To some extent, this reflects the—still—relatively novel
character of the discipline: unlike in traditional fields of international law, which
stretch back centuries and were well-defined in 1922 or 1946, the Court’s engage-
ment with international environmental law is by necessity of a more recent origin.
In addition, a cursory glance at the relevant texts shows that the Court’s jurisdic-
tional potential is fairly limited: multilateral environmental agreements (MEAs) as
the key regulatory instrument of international environmental law generally do not
envisage recourse to the ICJ as a standard form of dispute resolution, but instead
rely on a range of different (typically non-binding) dispute settlement strategies.2
And finally, where environmental disputes come within the Court’s jurisdiction,
standing may be a problem: as is well known, in contentious proceedings, access to
the Court is limited to states,3 and only a limited number of entities are entitled to
1 On these topics see the contributions by Parlett and Shaw to this volume at Chapters 6 and 8
respectively.
2 For details see M Fitzmaurice, ‘International Protection of the Environment’ 293 Recueil des Cours
(2001) 9, chapter VII.

Article 15(2) of the Convention on Environmental Impact Assessment in a Transboundary Context
(the ‘Espoo Convention’, 1989 UNTS 309) contains a dispute settlement clause that is typical of
modern MEAs in that it requires parties to ‘opt into’ binding dispute settlement. It provides:
When signing, ratifying, accepting, approving or acceding to this Convention, or at any time
thereafter, a Party may declare in writing to the Depositary that for a dispute not resolved in
accordance with paragraph 1 of this Article [ie through negotiation], it accepts one or both of the
following means of dispute settlement as compulsory in relation to any Party accepting the same
obligations:
a) Submission of the dispute to the International Court of Justice;
b) Arbitration in accordance with the procedure set out in Appendix VII.
3 See Art 34 of the ICJ Statute.
request advisory opinions.4 What is more, where states are considering contentious
proceedings, they would typically be expected to establish a legal interest in the
subject matter of the litigation, which may be complex where claims are brought in
defence of public interests.5
All this has fuelled debate about the ICJ’s suitability as a forum to address
environmental disputes.6 An International Court for the Environment, possibly
forming part of a World Environmental Organization, was mooted for some time,7
an idea recently revived in written evidence submitted to the (UK) Parliament.8
Perhaps mindful of concerns, the ICJ, in 1993, established a Special Chamber for
Environmental Matters pursuant to Article 26(1) of its Statute, to attract environ-
mental cases; but—perhaps predictably—parties chose not to avail themselves of
that option and in 2006, the Chamber was not reconstituted.9 Proceedings
therefore have been addressed not by a special chamber, but by the full Court.
And notwithstanding the limitations just mentioned, some of the Court’s decisions
have indeed clarified, crystallized, or confirmed the legal status of important
principles of international environmental law. In a recent address,10 Judge
Owada distinguished three ways by which the Court could contribute to the
development and clarification of international environmental law. Firstly, through
4 See Art 96 of the UN Charter and Article 65 of the ICJ Statute.

5 For brief comment see 2.2.
6 In addition to the concerns mentioned in the text, the length of proceedings before the Court
(which may not be able to address instances of environmental degradation requiring swift action in a
timely manner) and the allegedly technical character of environmental law have been seen as obstacles.
7 See eg A Postiglione, ‘An International Court for the Environment’ (1993) 23 Envtl Policy and L
73. Contrast the more cautious views expressed by Sir R Jennings, ‘Need for Environmental Court?’
(1992) 20 Envtl Policy and L 313–14; and cf further E Valencia-Ospina, ‘The International Court of
Justice and International Environmental Law’ (1994) 2 Asian Ybk of Intl L 1–10; E Hey, Reflections on
an International Environmental Court (The Hague: Kluwer, 2000); OW Pedersen, ‘An International
Environmental Court and International Legalism’ (2012) 24 J Envtl L 547.
For the author’s position see M Fitzmaurice, ‘Environmental Protection and the International
Court of Justice’ in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice.
Essays in Honour of Sir Robert Jennings (Cambridge: CUP, 1996) 293, 302–8; as well as M Fitzmaurice,
Recueil des Cours (n 2) 363–7; M Fitzmaurice, ‘The International Court of Justice and Environmental
Disputes’ in D French et al (eds) International Law and Dispute Settlement (Oxford: Hart Publishing,
2010) 17.
8 See Environmental Audit Committee: Preparations for Rio + 20: The United Nations Conference
on Sustainable Development, ‘Written evidence submitted by the International Court for the Environ-
ment’ <http://www.publications.parliament.uk/pa/cm201012/cmselect/cmenv aud/writev/rio/rio.pdf>
(accessed 17 May 2013).
9 For details see R Ranjeva, ‘L’environnement, la Cour internationale de Justice et sa
Chambre spéciale pour les questions d’environnement’, Annuaire français de droit international 40
(1994) 432–41; Palchetti, ‘Commentary on Article 26’ in A Zimmermann, C Tomuschat, K Oellers-
Frahm and CJ Tams (eds), The Statute of the International Court of Justice. A Commentary (Oxford:
OUP, 2nd edn 2012) 490–2. In 2006, commenting on the Court’s decision not to reconstitute the
Chamber, President Rosalyn Higgins observed: ‘A survey of State practice suggests that States prefer
environmental law not to be compartmentalized, but to find its place within international law as a
whole’ (Speech to the General Assembly, reproduced in ICJ Yearbook (2006–2007) 307).
10 H Owada, ‘International Environmental Law and the International Court of Justice’ Inaugural
Lecture at the fellowship Programme on International and Comparative Environmental Law, II, 2006/
3–4, 5–32 Iustum Aequum Salutare <http://ias.jak.ppke.hu/hir/ias/200634sz/owada.pdf> (accessed 17
May 2013).
International Environmental Law 355
settling bilateral disputes between states, the Court could contribute to identifying
and clarifying issues of international environmental law as an element of the
international ordre public. Secondly, by rendering advisory opinions, the Court
could identify certain general principles of international environmental law.
Finally, the Court could emphasize the growing importance of international envir-
onmental law in contemporary international life, could offer its service to the
development of the law in this field, and, in so doing, ‘strengthen its capacity to
deal with cases pertaining to disputes specifically relating to international environ-
mental law as such’.11
The following analysis will trace the Court’s impact on the development of
international environmental law by reviewing its most important findings chrono-
logically; this inductive approach will bring out changing approaches to inter-
national environmental law and help identify the Court’s contribution to legal
fields as diverse as water law, nuclear technology, biodiversity, etc. Before dealing
with the Court’s environmental cases, it seems however necessary to revisit two
decisions that, while not directly concerning issues of environmental law, provide a
conceptual basis for its development.
2. Formulating basic concepts: Corfu Channel, Barcelona Traction
The ICJ’s contribution to international environmental law begins with ‘non-

environmental’ judgments. In two important contentious cases, it formulated
concepts that were also picked up by international environmental lawyers and
that in fact—as noted by Viñuales in an insightful essay12—would provide ‘an
initial grounding’13 for the development of the discipline.
2.1 Corfu Channel

The first case in point is Corfu Channel.14 In it, the Court enunciated a ‘general and
well-recognized principl[e]’ when affirming ‘every State’s obligation not to allow
knowingly its territory to be used for acts contrary to the rights of other States’.15 In
the circumstances of the case, this general principle was ‘translated’ into an obliga-
tion to notify ‘shipping in general [of ] the existence of a minefield in [a State’s]
territorial waters’.16 However, its scope of application was much broader; and the
principle could very well be applied to harm occurring in one state, and originating
11 Owada (n 10) 30–1.

12 JE Viñuales, ‘The Contribution of the International Court of Justice to the Development of
International Environmental Law’ (2008) 32 Fordham ILJ 232.
13 Viñuales (n 12) 244. For a detailed assessment see also N Horbach and P Bekker, ‘State
Responsibility for Injurious Transboundary Activity in Retrospect’ (2003) 50 NILR 327.

15 Corfu Channel (n 14) 22. For comment see P Birnie, A Boyle, C Redgwell, International Law &
The Environment (Oxford: OUP, 3rd edn 2009) 144.

in another. Some of the foundational awards of international environmental law—
namely Trail Smelter17 and Lac Lanoux18—in fact had used it in precisely that
context, and the ICJ’s use of language was close to that of Trail Smelter:
[U]nder the principles of international law, as well as the law of the United States, no State
has the right to use or permit the use of its territory in such a manner as to cause injury by
fumes in or to the territory of another or the properties or persons therein, when the case is
of serious consequence and the injury is established by clear and convincing evidence.19
While this ‘general principle’—often rendered in Latin as ‘sic utere tuo ut alineum
non laedas’20—enshrined a narrow view of environmental protection that saw
environmental obligations as running ‘between States’ (and had trouble addressing
harm to global commons),21 it played a formative role in the development of
international environmental law. The reason for this is not difficult to understand:
even at a time when ‘the environment’ as such remained an elusive concept, the
principle allowed environmental law to be construed on the basis of an inter-state
understanding. Around two decades after Corfu Channel (and three after Trail
Smelter), this would form the agreed core of Principle 21 of the Stockholm
Declaration (later to be repeated in Principle 2 of the Rio Declaration22
and implemented in a host of multilateral treaties23) pursuant to which ‘States
have . . . the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States’. 24 The procedural
dimension of the Corfu Channel pronouncement (ie the duty of notification) would
reappear in Principles 18 and 19 of the Rio Declaration25 and feature (with
references to the ICJ’s jurisprudence) in Draft Articles 6 and 8 of the text of the
International Law Commission (ILC) on Prevention of Transboundary Harm
from Hazardous Activities adopted in 2001.26 None of this is to suggest that the
ICJ, in Corfu Channel, invented the sic utere tuo principle. However, the brief
summary indicates that it recognized the general relevance of a broad principle that
would be of particular importance in the field of international environmental law.
17 Trail Smelter (US v Canada) (1938 and 1941) 3 RIAA 1905. For a contemporary perspective see
the contributions to RM Batspies and RA Miller (eds), Transboundary Harm in International Law.
Lessons from Trail Smelter Arbitration (Cambridge: CUP, 2006).
18 Affaire du lac Lanoux (Spain v France) (1957) 12 RIAA 281.
19 Trail Smelter (n 17) 1963.
20 Cf J Brunnée, ‘Sic utere tuo ut alienum non laedas’ in R Wolfrum (ed), Max Planck Encyclopedia
of Public International Law, vol IX (Oxford: OUP, 2012) 188; C Hinds, ‘Das Prinzip “sic utere tuo ut
alienum non laedas” und seine Bedeutung im internationalen Umweltrecht’ (1992) 30 Archiv des
Völkerrechts 298.
21 A point stressed by Viñuales (n 12) 237–9.
22 Rio Declaration on Environment and Development, reprinted in (1992) 31 ILM 874.
23 See eg the Convention on Long-Range Transboundary Air Pollution, 1302 UNTS 217, the
Vienna Convention for the Protection of the Ozone Layer, 1513 UNTS 324; or the United Nations
Framework Convention on Climate Change, 1771 UNTS 107.
24 Stockholm Declaration of the United Nations Conference on the Human Environment, Report
of the United Nations Conference on the Human Environment, reprinted (1972) 11 ILM 1416.
25 Rio Declaration (n 22).
26 ILC Ybk 2001/II(2), 148. See the references to Corfu Channel (n 14) in para 3 of the commentary
to draft article 6, and para 3 of the commentary to draft article 8.

2.2 Barcelona Traction

Unsurprisingly, as international environmental law has come of age, it has had to
move beyond inter-state constructions and embraced notions of collective interest.
In fact, international environmental law today is viewed as an example par excel-
lence of a legal regime safeguarding interests of the international community.27
Hence contemporary MEAs typically aim at setting general standards for the
protection of the ‘common heritage’ or the ‘good of mankind’, and often emphasize
the ‘intrinsic’ value of nature.28 This has broad implications, not all of which
are fully resolved: standing to raise breaches, for example, remains a conceptual
challenge, as does the application of general notions of responsibility to environ-
mental obligations. The ICJ has so far not addressed these matters expressly, and
yet it has famously launched a concept that would come to capture much of the
debate about community interests in international law: that of obligations erga
omnes.29 The relevant section of the Court’s Judgment in the Barcelona Traction
case30 is well-known and thus can be dealt with summarily. In the circumstances of
the case, the Court dismissed Belgium’s claim for diplomatic protection, brought
on behalf of majority shareholders of a company, for lack of standing. More
importantly, it drew:
an essential distinction . . . between the obligations of a State towards the international
community as a whole, and those arising vis-à-vis another State in the field of diplomatic
protection. By their very nature, the former are the concern of all States. In view of the
importance of the rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.31
As with the Court’s statement in Corfu Channel, the Barcelona Traction dictum was
not made specifically with respect to international environmental obligations.
Instead, the Court mentioned rules against aggression, genocide, and those pro-
tecting ‘basic rights of the human person’ as examples of obligations erga omnes.32
27 See eg Fitzmaurice (n 2) 150 ff; U Beyerlin and Th Marauhn, International Environmental Law
(Oxford: Hart Publishing, 2011) 288–9; EM Kornicker Uhlmann, ‘State Community Interests, Jus
Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms’ 11
(1998) Geo Intl Envtl L Rev 101; U Beyerlin, ‘State Community Interests and Institution-Building in
International Environmental Law’ (1996) 56 Zeitschrift für ausländisches öffentliches Recht und Völk-
errecht 602.
28 See eg the 1992 Biodiversity Convention (1760 UNTS 39, Preamble: ‘intrinsic value of
biological diversity’); Framework Convention on Climate Change (1771 UNTS 107, Preamble:
‘change in the Earth’s climate and its adverse effects are a common concern of humankind’).
29 Literature on the concept is abundant. See notably CJ Tams, Enforcing Obligations Erga Omnes
in International Law (Cambridge: CUP, 2005); and G Gaja’s First and Second Reports on ‘Obligations
and Rights Erga Omnes in International Law’ submitted to the Institut de Droit international and
reproduced (together with comments and the Institut’s eventual resolution) in Annuaire de l’Institut de
Droit international vol 71-I (2005) 119–212, and Annuaire de l’Institut de Droit international vol 71-II
(2006) 83–137 and 286–9.
[1970] ICJ Rep 3.

31 Barcelona Traction (n 30) para 33. 32 Barcelona Traction (n 30) para 34.
However, just as with the ‘general and well-recognized’33 sic utere tuo principle, so
the erga omnes concept is capable of being applied outside its initial field of
application. In fact, as an awareness of environmental risks increased and the
interest of the international community in environmental protection came to be
articulated more comprehensively, international environmental law became an
obvious ‘candidate’.34 While the matter remains controversial, it is worth noting
that in its Cracow Resolution on ‘Obligations and rights erga omnes in international
law’, the Institut de Droit international expressly mentioned ‘obligations relating to
the environment of common spaces’ as an example (alongside those given in
Barcelona Traction) of ‘obligations reflecting . . . fundamental values’ of the inter-
national community.35 The work of the ILC seems to point in the same direction:
in its Articles on State Responsibility (ASR) adopted in 2001,36 in which it sought
to operationalize the notion of obligation erga omnes by spelling out a regime of
standing to invoke responsibility, the ILC prominently referred to international
environmental law as an example of collective interest obligations that could be
vindicated by all ‘interested’ states.37
To be sure, the ICJ’s majority has so far refrained from expressly qualifying
obligations of international environmental law as obligations erga omnes.38 Also,
many aspects of the erga omnes regime remain uncertain. However, it seems clear
from the foregoing that by formulating, and later developing, the erga omnes
concept, the ICJ has provided international environmental lawyers with a powerful
tool. Just as it did in Corfu Channel, in Barcelona Traction the Court launched
concepts that were to shape environmental debates of the future.
3. Initial caution: Nuclear Tests I
Soon after Barcelona Traction, and soon after the Stockholm Declaration, the first
environmental cases reached the ICJ. The Nuclear Tests I proceedings39 were the
first applications prompted by environmental concerns.40 The applicants, Australia
33 Cf Corfu Channel (n 14) 22. 34 See the references in note 27.

35 Annuaire de l’Institut de Droit international, vol 71-II (2006) 286 (Preamble).
36 ILC, Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001,
annexed to GA Res 56/83 (12 December 2001) and reproduced, with commentaries, in ILC Ybk
2001/II(2), 31.
37 Commentary to Art 48 ASR, para 7: ‘They [collective obligations] might concern, for example,
the environment or security of a region’. For further detail (and a more cautious perspective) see J Peel,
‘New State Responsibility Rules and Compliance with Multilateral Environmental Obligations: Some
Case Studies of How New Rules Might Apply in the International Environmental Context’ (2001) 10
RECIEL 82.
38 Yet the same is not true for individual judges: see notably the individual opinions by Judge
Weeramantry referred to in sections 4 and 5.

39 Nuclear Tests (Australia v France) [1974] ICJ Rep 253 and Nuclear Tests (New Zealand v France)
[1974] ICJ Rep 457.

40 For a clear summary see A Watts, ‘Nuclear Tests cases’ in R Wolfrum (ed), Max Planck
Encyclopedia of Public International Law, vol VII (Oxford: OUP, 2012) 282; for details see
T Stephens, International Courts and Environmental Protection (Cambridge: CUP, 2009) 137–45.
The following draws on M Fitzmaurice in Lowe and Fitzmaurice (n 7) 296–9.
and New Zealand, sought an injunction from the Court against French atmospheric
nuclear testing in the Pacific. Their applications were part of a general movement
against atmospheric nuclear testing,41 then a key concern for the emerging environ-
mental movement. Claims of significant damage to the environment by nuclear
testing formed an important part of the arguments developed by the applicants.
Australia, for example, submitted detailed information on the effects of nuclear
testing on human beings and animals, as well as on the environment as such,42
and New Zealand stressed the dangers of radiation to people and animals.43
While the applications thus squarely raised environmental concerns, the legal
claims, for the most part, were formulated as infringements of sovereign positions.
Australia notably argued that the deposit of radioactive fall-out on its territory and
dispersion in its airspace violated sovereign rights.44 New Zealand’s pleadings also
mainly stressed the claimant’s right to be free from radioactive fall-out.45 The case
therefore broadly followed the ‘inter-state’ logic of the sic utere tuo principle—
despite the fact that both states did mention broader community concerns. In fact,
had the Court entertained the case it might have clarified many of the issues left
unaddressed by its earlier decision in Corfu Channel and by the Trail Smelter award,
among them the questions of causality and the required level of damage.
However, as is well-known, having ordered interim measures of protection,46 the
Court did not decide on the substantive issues. From unilateral statements by
French officials, it inferred that France would discontinue its testing programme
after 1974; according to a majority of judges, this meant the dispute had become
moot.47 This interpretation, however, was by no means obvious and might very
well be taken to reflect a certain caution vis-à-vis environmental concerns. In the
words of one commentator, ‘there was particular disappointment that the Court
did not deal with the merits of the legality of atmospheric testing’,48 while another
thought ‘the ICJ [had] avoided the environmental implications of French nuclear
41 See eg GA Res 2934 (XXVII) (29 November 1972) (condemning tests in the Pacific); as well as
the 1963 Partial Test Ban Treaty (which, inter alia, banned atmospheric tests, but which had not been
ratified by France), 480 UNTS 45.
42 For example, it was alleged by the Australian Government that the main radioactive contamin-
ation of the environment by a nuclear explosion is caused by radioactive fall-out deposited on the
surface of the earth, including direct contamination of soil, of the water of oceans, lakes, rivers and
reservoirs, and of vegetation. Australia also claimed that nuclear fall-out would affect the atmosphere,
contributing to changes in meteorological conditions. Notably, the French nuclear explosions would
result in troposphere fall-out on states, other territories and oceans in the Southern hemisphere.
Australia submitted that the radioactive ‘cloud’ of debris in the troposphere might make several transits
around the globe before being depleted by radioactive decay and deposit: see Nuclear Tests (Australia v
France) (n 39) ICJ Pleadings, vol I, 9–10.
43 Nuclear Tests (New Zealand v France) (n 39) ICJ Pleadings, vol I, 3, 5–7.
44 Nuclear Tests (Australia v France) (n 39) ICJ Pleadings, vol I, 14 and 43.
45 Nuclear Tests (New Zealand v France) (n 39) ICJ Pleadings, vol I, 8 and 49.
46 Nuclear Tests (Australia v France) (Interim Protection) [1973] ICJ Rep 99 and Nuclear Tests (New
Zealand v France) (Interim Protection) [1973] ICJ Rep 135.

47 See Nuclear Tests (Australia v France) (n 39) paras 50–2, and Nuclear Tests (New Zealand v
France) (n 39) paras 52–5. In the following, for reasons of convenience, references are to the
proceedings brought by Australia only.
48 Watts (n 40) para 26.
testing by recasting the dispute from one concerning international environmental
law to one relating to the legal effects of unilateral statements’.49
Some of the individual opinions provide insights into the judges’ appreciation of
environmental matters in general, and of nuclear testing in particular; but again, the
judicial ‘fall-out’ was fairly limited: The joint Dissenting Opinion of Judges
Onyeama, Dillard, Jiménez de Aréchaga, and Waldock,50 as well as the dissent of
Judge ad hoc Barwick,51 centred on jurisdictional issues; to them, the Court, in
considering the dispute moot, had misconstrued the applicants’ claim. Judge
Petrén, in his Separate Opinion, queried whether there existed a norm of customary
international law precluding states from causing radioactive fall-out on the territory
of other states through atmospheric tests. In his assessment, the answer was in the
negative: by 1974, there had emerged no legal rule against atmospheric nuclear
testing.52 Judge de Castro, in his dissent, offered a different view. He invoked the
sic utere tuo principle as a basic principle of international environmental law and
referred to the Corfu Channel dictum and the Trail Smelter award arbitration; these
seemed to suggest that to him that the deposit of radioactive fall-out on the territory
of another state was illegal.53
All things considered, it seems fair to say that the Court, in Nuclear Tests,
chose not to make much use of the opportunity to clarify questions of inter-
national environmental law. While the Court may have been right, or prudent,
not to entertain the applicants’ claims, the lack of engagement, in the Judgment
and Opinions, with fundamental questions of environmental concern remains
surprising.54
4. Growing awareness, procedural strictures:

Nauru, Nuclear Tests II
The two decades following the Nuclear Tests I Judgment witnessed a dramatic
increase in environmental awareness, reflected in important documents like the
1992 Rio Declaration and a wealth of specialized treaties.55 This change of attitude
began to be reflected in the ICJ’s approach in two proceedings brought during the
49 Stephens (n 40) 98. 50 See eg Nuclear Tests (Australia v France) (n 39) 312.
51 See eg Nuclear Tests (Australia v France) (n 39) 391.
52 See Separate Opinion of Judge Petrén, Nuclear Tests (Australia v France) (n 39) 306: ‘The
example given by China when it exploded a very powerful bomb in the atmosphere is sufficient to
demolish the contention that there exists at present a rule of customary international law prohibiting
atmospheric nuclear tests’.
53 Dissenting Opinion of Judge de Castro, Nuclear Tests (Australia v France) (n 39) para 4. On the
other hand, Judge de Castro rejected the applicants’ claim to bring proceedings in defence of general
community interests: para 5.
54 Stephens (n 40, 144) summarizes the matter aptly when noting that ‘[t]here is little discussion in
the decision of the serious environmental questions at issue in the proceedings. Indeed even in reciting
the facts underlying the dispute the Court steered clear of any substantive description of the environ-
mental dangers of nuclear testing, and merely noted the existence of a disagreement between the parties
about the effects of radioactive materials dispersed by the French testing.’
55 For a survey of developments see M Fitzmaurice (n 2) 35–40.
1990s, namely Nauru and Nuclear Tests II. Yet, whatever the Court’s attitude, and
notwithstanding the changed legal landscape, environmental arguments either did
not take centre stage or could not do so because of jurisdictional strictures; this in
turn affected the impact of the Court’s pronouncements.
4.1 Nauru
The Nauru case56 might have been the first real environmental case before the ICJ;
however, as it was settled before the Court rendered a merits decision, it can be
dealt with summarily. In its application, Nauru asserted the responsibility of
Australia, as a Trusteeship Authority, for the effects of phosphate mining.57 Until
1967, Australia, New Zealand, and the United Kingdom had exploited a large
percentage of the Nauruan phosphate resources and in the process had left the
island’s land and ecosystem degraded. Before the ICJ, Nauru asserted the illegality
of the mining activity and sought compensation, including for the rehabilitation
of lands.58
At the preliminary objections stage, the proceedings before the Court mainly
concerned the legal nature of the Trusteeship Agreement and Australia’s position
as a (sole) defendant. These were addressed by the Court in its 1992 Judgment
which dismissed Australia’s objections and paved the way for a decision addressing
Australia’s responsibility for environmental harm. As it transpired, the two parties
settled the case before any decision on the merits, with Nauru receiving substantial
financial contributions and development assistance.59
While the Court’s involvement may have been decisive in ensuring this out-
come, the Court therefore was unable to contribute to the development of inter-
national environmental law. Still, it has been held to be ‘significant that the Court
was considered by the applicant as an appropriate forum for the determination of
the relevant legal issues, including compensation for harm to the environment’.60
56 Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240.
57 For a clear survey see N Schrijver, ‘Certain Phosphate Lands in Nauru case (Nauru v Australia)’
in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law, vol II (Oxford: OUP, 2012)
57; for more details on the environmental dimension A Anghie, ‘ “The Heart of My Home”:
Colonialism, Environmental Damage, and the Nauru Case’ (1993) 34 Harvard ILJ 44.
58 In its Memorial, the Government of Nauru argued as that ‘the effect of the legal regime which
combined a single minded state monopoly, and ever increasing demand for phosphate meant the
systematic destruction of the Nauruan environment, a process which threatened to engulf all but the
narrow coastal rim of the Island’. And further: ‘When it was eventually realised by Australia that the so-
called “fertile” coastal strip was not sufficient to sustain a growing community whose previous total
land area would eventually be reduced by four-fifths, the strategy adopted was to seek to remove the
community from their home, rather than to rehabilitate the worked-out land.’ See ICJ, Certain
Phosphate Lands in Nauru (n 56), Memorial of the Republic of Nauru, vol I (at <http://www.icj-cij.
org/docket/files/80/6655.pdf> (accessed 17 May 2013)) para 100.
59 See Australia Nauru Settlement Agreement (1993) 32 ILM 1474. As Schrijver notes (n 57) para
16, the payments were made ‘without prejudice to Australia’s position that it bore no responsibility
for the rehabilitation of the phosphate lands worked out before 1 July 1967’, but ‘in an effort to assist
the Republic of Nauru in its preparations for its post-phosphate future’ (per Art 1, para 1).
60 PN Okowa, ‘Environmental Dispute Settlement: Some Reflections on Recent Developments’ in
M Evans (ed), Remedies in International Law (Oxford: Hart Publishing, 1998) 157, 162.
4.2 Nuclear Tests II

The Nuclear Tests II case61 was in some ways similar, but—especially if compared
with the Nuclear Tests I cases—confirmed the change of perception. Whereas
Australia’s and New Zealand’s initial applications had been formulated mainly as
sovereignty-based claims, New Zealand’s attempt to have the matter re-examined
twenty years later (as well as the pleadings in the case) centred on environmental
questions. The request, filed by New Zealand on the basis of paragraph 63 of the
1974 Judgment, was based on the alleged environmental impact, in particular on
the marine environment, of underground nuclear tests conducted by France on the
Polynesian atolls of Mururoa and Fangataufa.62 New Zealand argued that France’s
nuclear testing in the South Pacific was illegal in international law. In support, New
Zealand drew on international treaties and general principles of international
environmental law, among them the principle of environmental impact assessment
(EIA), a requirement for which was incorporated in the 1986 Convention for the
Protection of the Natural Resources and Environment of the South Pacific (the
Nuomea Convention63), and the precautionary principle.64
In terms of jurisdiction, this was an unlikely case: as France had withdrawn its
optional clause declaration and as no treaty referred the matter to the ICJ, New
Zealand could not point to any regular basis of jurisdiction. Instead it argued that
because of a reference, in the 1974 Judgment, to the possibility of a judicial re-
examination, it could ‘re-open’ the initial (Nuclear Tests I) case to scrutinize
France’s underground nuclear testing in the Pacific.65 Perhaps expectedly
(but controversially66), the Court did not accept the argument: by an Order of
22 September 1995,67 it ruled that the Request of New Zealand for the resumption
of the proceedings did not fall within the remit of paragraph 63 of the 1974
Judgment in the Nuclear Tests I case. In the view of the majority, the basis of the
1974 Judgment had not been (as required by para 63) ‘affected’: the new Applica-
tion related to underground nuclear testing, while the 1974 case was concerned
61 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s
Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case [1995] ICJ Rep
288 (Nuclear Tests II ).
62 For details see M Craven, ‘New Zealand’s Request for an Examination of the Situation in
Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests
Case’ (1996) 45 ICLQ 725; Stephens (n 40) 145–9.
63 Reprinted in (1987) 26 ILM 41.
64 See M Fitzmaurice, in French et al (n 7) 35–6, for a summary.
65 The relevant passage—para 63 of the Court’s 1974 Judgment—reads as follows: ‘Once the
Court has found that a State has entered into a commitment concerning its future conduct it is not the
Court’s function to contemplate that it will not comply with it. However, the Court observes that if the
basis of this Judgment were to be affected, the Applicant could request an examination of the situation
in accordance with the provisions of the Statute; the denunciation by France, by letter dated 2 January
1974, of the General Act for the Pacific Settlement of International Disputes, which is relied on as a
basis of jurisdiction in the present case, cannot constitute by itself an obstacle to the presentation of
such a request’ (Nuclear Tests (New Zealand v France) (n 39)).
66 Cf M Fitzmaurice, Recueil des Cours (n 2) 376; Stephens (n 40) 147.
67 Nuclear Tests II (n 61) 288.
solely with atmospheric tests.68 Even so, in paragraph 64 of the Order, the Court,
mindful of the environmental aspects of the case, added the following statement:
‘the present Order is without prejudice to the obligations of States to respect and
protect the natural environment, obligations to which both New Zealand and
France have in the present instance reaffirmed their commitment.’ While this was
no substitute for a full engagement with the issues, it can perhaps be taken as
recognition, by the Court, that international environmental law had entered the
international legal mainstream.
In their dissenting opinions, Judges Weeramantry and Koroma and Judge ad hoc
Sir Geoffrey Palmer went beyond the majority’s general assessment and, in very
persuasive terms, expressed support for more specific aspects of environmental
protection, which in their view warranted a different outcome. Judge Weeramantry
discussed several principles of international environmental law as relevant to
nuclear testing, such as intergenerational rights (equity), the precautionary
principle, the principle of environmental impact assessment (described by him as
‘gathering strength and international acceptance’).69 He also emphatically stressed
the illegality of introducing nuclear waste into the marine environment.70 Judge
Koroma noted the evolution in environmental knowledge and law and argued that
the Court should have taken into consideration all these new developments and
allowed New Zealand’s Request.71 A similar position was adopted by Sir Geoffrey
Palmer, who noted the development of international environmental law and its
principles as enshrined in both the Stockholm and the Rio Declarations and,
therefore, accorded merit to the Request of New Zealand. He was, furthermore,
of the view that the principle of environmental impact assessment and the precau-
tionary principle had already entered the body of customary international law.72
Nuclear Tests II therefore confirmed that international environmental law had
reached the Court. Rather than avoiding it completely, the majority included a
general reference to its importance, while individual judges were prepared to go
much further.
5. Mainstreaming international environmental law: Nuclear

Weapons, Gabčíkovo-Nagymaros
If its engagement with environmental issues remained constrained by procedural

limitations in Nauru and Nuclear Tests II, two further proceedings, brought soon
thereafter, saw the Court address environmental concerns in a fuller way. These
two proceedings—Nuclear Weapons and Gabčíkovo-Nagymaros—marked a break-
through for international environmental law in the Court’s jurisprudence, just as
68 Nuclear Tests II (n 61) paras 62–3.

69 Dissenting Opinion of Judge Weeramantry, Nuclear Tests II (n 61) 345.
70 Dissenting Opinion of Judge Weeramantry, Nuclear Tests II (n 61) 345.
71 Dissenting Opinion of Judge Koroma, Nuclear Tests II (n 61) 363 ff.
72 Dissenting Opinion of Judge Palmer, Nuclear Tests II (n 61) 381 ff.
much as they reflected, and affirmed, that environmental law had moved from the
margins into the mainstream of international law.
5.1 Nuclear Weapons

Two advisory opinions rendered in 1996 added to the Court’s jurisprudence on
nuclear weapon-related activities. As is well-known, one was requested by the
World Health Organization (WHO), the other by the UN General Assembly.73
The WHO Request addressed environmental aspects expressly, asking whether ‘[i]n
view of the health and environmental effects . . . the use of nuclear weapons by a
State in war or other armed conflicts [would] be a breach of its obligation under
international law including the WHO Constitution?’74 This Request was declined:
in the view of the Court’s majority, the legality or illegality of nuclear weapons did
not fall within the WHO’s sphere of functions, a requirement for it to request an
advisory opinion under Article 96(2) of the UN Charter.75 As in earlier ICJ
proceedings, it was left to the dissenters to engage in a fuller assessment of environ-
mental issues. Judge Weeramantry emphasized the dramatic evolution of inter-
national environmental law as well as the close relationship between health and
environmental obligations relating to nuclear weapons.76 Judge Koroma, who
stressed the importance of environmental obligations of states in relation to nuclear
weapons and noted that they are enshrined in international customary law and the
Geneva Conventions.77
Yet while these statements followed an established pattern—a fairly cautious
majority view, more ‘activist’ individual opinions seeking to establish the relevance
of international environmental law—it was the Court’s response to the second
Request, ie that submitted by the General Assembly, that marked a significant step
towards the mainstreaming of international environmental law. Notwithstanding
the General Assembly’s ‘neutral’ formulation of the Request—‘Is the threat or use
of nuclear weapons in any circumstances permitted under international law?’78—
many states focused their pleadings on the environmental impact of nuclear
weapons.79 In its Opinion, the Court took up these points at two different levels.
73 See Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996]
ICJ Rep 66 (‘Nuclear Weapons—WHO’) and Legality of the Threat or Use of Nuclear Weapons (Advisory
Opinion) [1996] ICJ Rep 226 (‘Nuclear Weapons’).
74 See Nuclear Weapons—WHO (n 73) para 16.
75 Nuclear Weapons—WHO (n 73) paras 20–6. On jurisdictional issues relating to the WHO
request see eg E Lauterpacht, ‘Judicial Review of the Acts of International Organisations’ in L Boisson
de Chazournes and P Sands (eds), International Law, the International Court of Justice and Nuclear
Weapons (Cambridge: CUP, 1996) 92.
76 Dissenting Opinion of Judge Weeramantry, Nuclear Weapons—WHO (n 73) 101.
77 Dissenting Opinion of Judge Koroma, Nuclear Weapons—WHO (n 73) 172.
78 GA Res 49/75 K (15 December 1994).
79 For details see E Brown-Weiss, ‘Opening the Door to the Environment and Future Generations’
in Boisson de Chazournes and Sands (n 75) 338. As regards specific international provisions, Article 35
(3) of the Additional 1977 Protocol I to the 1949 Geneva Conventions and Article 18 of the 1977
Convention on the Prohibition of Military or Any other Hostile Use of Environmental Modification
Techniques (ENMOD Convention) seemed to be of particular relevance and were discussed, as were
First, it made a number of general statements about the importance of environ-

mental concerns, thus affirming their legal relevance. For instance, it noted that the
environment was under daily threat and that the use of nuclear weapons could
constitute ‘a catastrophe for the environment’.80 It also observed that the environ-
ment was not an abstraction but represented a living space, impacting upon
the quality of life and the very health of human beings, including generations
unborn.81 Furthermore, it went beyond the cautious approach of Nuclear Tests I by
recognizing the general obligation of states to ensure that activities within their
jurisdiction or under their control do not cause harm to the environment of other
states or to areas beyond their control; this, the Court said, finally applying the
Corfu Channel statement, was ‘part of the corpus of international law relating to the
environment’.82
Second, the majority opinion did not restrict itself to statements of a general
nature, but inquired whether ‘obligations stemming from [treaties of international
environmental law] were intended to be obligations of total restraint during
military conflict’.83 Perhaps predictably, given this approach, the Court concluded
that international environmental obligations did not intend ‘to deprive a State of
the exercise of its right of self-defence under international law because of its
obligations to protect the environment’.84 However, this was not the end of the
matter. Notably, the Court held that states must take the environment into
consideration ‘when assessing what is necessary and proportionate in the pursuit
of legitimate military objectives’.85 Put differently, and in line with Principle 24 of
the Stockholm Declaration as well as the 1992 UN General Assembly Resolution
47/37 on the Protection of the Environment in Times of Armed Conflict, respect
for the environment was a factor influencing the application of the international
regime governing recourse to force. Additional protection for the environment was
provided by Articles 35(3) and 55 of Additional Protocol I to the Geneva Conven-
tion, which, for example, required states to protect the natural environment against
widespread, long-term and severe damage. The Court considered that these obliga-
tions, in their entirety, imposed powerful constraints on States’ conduct during
armed conflict.
Notwithstanding the passage of time, the Nuclear Weapons Opinion has
remained controversial. A number of judges wanted the Court to go further and
find that the use of nuclear weapons was illegal under all circumstances.86 Judge
Weeramantry in particular emphasized the importance of international environ-
mental principles, and their impact on other branches of international law:
Principle 21 of the Stockholm Declaration, Principle 2 of the Rio Declaration and the concept of
intergenerational equity.
86 See notably the Dissenting Opinions of Judges Weeramantry and Koroma, Nuclear Weapons
(n 73) 429 and 556.

Environmental law incorporates a number of principles which are violated by nuclear
weapons. [These include the] principle of intergenerational equity and the common heritage
principle . . . [as well as] the precautionary principle, the principle of trusteeship of earth
resources, the principle that the burden of proving safety lies upon the author of the act
complained of, and, the ‘polluter pays principle’, placing on the author of environmental
damage the burden of making adequate reparation to those affected. [ . . . ]
These principles of environmental law thus do not depend for their validity on treaty
provisions. They are part of customary international law. They are part of the sine qua non
for human survival.87
Some commentators had expected a fuller endorsement of environmental consider-
ations, which would have contributed to the integration of international humani-
tarian law and international environmental law.88 However, whatever the content
of the Opinion, it is difficult to ignore the Court’s willingness to engage with
international environmental law and to explore its relationship with other areas of
international law. As is clear from its recognition of Principle 21, its general support
for environmental protection and its analysis of specific treaties, the Court by 1996
had opened up for environmental concerns.
5.2 Gabčíkovo-Nagymaros
The Gabčíkovo-Nagymaros case89 can be seen in a very similar light. Decided in
1997, it was the first contentious case in which the Court, unrestrained by
jurisdictional limits, pronounced on important aspects of international water law
and the protection of the environment. Environmental considerations played a
pivotal role as they constituted the main theme of pleadings submitted by Hungary.
However, it would be an over-simplification to claim that Gabčíkovo-Nagymaros
was exclusively an environmental case. The law of treaties,90 the state responsi-
bility91 and state succession92 played an equally important role. Moreover, in
a manner not dissimilar to Nuclear Weapons, the proceedings highlighted, and
probed, links between international environmental law and general international
law.
The dispute concerned the construction and operation of the Gabčíkovo-Nagymaros
barrage system on the River Danube, which Hungary and Czechoslovakia had agreed
87 Dissenting Opinion of Judge Weeramantry, Nuclear Weapons (n 73) 502–4.

88 See eg Brown-Weiss (n 79) 348.
89 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7. For comment see eg J
Lammers, ‘The Gabčíkovo-Nagymaros Case Seen in Particular from the Perspective of the Law of
International Watercourses and the Protection of the Environment’ (1998) 11 Leiden JIL 287; S Stec
and G Eckstein, ‘Of Solemn Oaths and Obligations: The Environmental Impact of the ICJ’s Decision
in the Case Concerning the Gabčíkovo-Nagymaros Project’ (1997) 8 YIEL 41, as well as the literature
referred to in notes 90–2.
90 M Fitzmaurice, ‘The Gabčíkovo-Nagymaros Case and the Law of Treaties’ (1998) 11 Leiden JIL
321.
91 R Lefeber, ‘Case Analysis: The Gabčikovo-Nagymaros Project and the Law of State Responsibility’
(1998) 11 Leiden JIL 609; as well as Crawford in this volume at Chapter 5.

92 J Klabbers, ‘Cat on a Hot Tin Roof: The World Court, State Succession and the Gabčíkovo-
Nagymaros Case’ (1998) 11 Leiden JIL 345.

on in a Treaty of 1977 and two subsequent Protocols.93 In the spirit of post-1989

reform, Hungary sought to distance itself from the project, first seeking to suspend then
to terminate it. The Czechoslovak Government, and, from 1993, the Slovak Govern-
ment, wanted to go ahead with the project, and, when Hungary distanced itself,
proceeded to unilaterally divert the Danube on its territory pursuant to the so-called
‘Variant C’.
Hungary’s central argument for abandoning the project was the alleged existence
of ‘a state of ecological necessity’.94 Hungary provided several ecological reasons to
substantiate its claim, arguing that the construction of the barrage system would
result in a dramatic deterioration of water quality and threaten the Danube’s
habitat; this, it suggested, meant that the suspension and termination of the project
was justified as a necessity measure under the law of state responsibility. As regards
general international environmental law, Hungary moreover suggested that re-
quirements of international environmental law, recognized since 1977, also justi-
fied its termination of the Treaty (even though it did not argue that any of these
norms were of a jus cogens character).95
In engaging with, and ultimately dismissing, these arguments, the Court made a
number of crucial pronouncements. The most important of these concerned the
law of state responsibility.96 As a matter of principle, the Court accepted two claims
put forward by Hungary. First, it accepted that international law recognized
necessity (at that time still quite controversial) as a ‘circumstance precluding
wrongfulness’ if a state could not otherwise ‘safeguard an essential interest against
a grave and imminent peril’.97 Second, stressing the importance of environmental
protection as recognized in the Nuclear Weapons Opinion, it accepted Hungary’s
argument that concerns for a state’s natural environment could qualify as an
‘essential interest’ within the meaning of the necessity defence.98 Taken together,
the two findings paved the way for the recognition of necessity as a self-standing
circumstance precluding wrongfulness and its invocation in cases involving trans-
boundary detrimental interference with the environment or the utilization of
natural resources. They put an end to long-standing controversies about the state
of necessity in international law and opened it up as a defence for environmental
measures prima facie violating international obligations.
When it came to the application of the principle, the Court adopted a more
cautious approach, emphasizing throughout that necessity could ‘only be invoked
93 For a summary of the factual background see Gabčíkovo-Nagymaros (n 89) paras 15–25.
94 Gabčíkovo-Nagymaros (n 89) paras 50–52.
96 For comment on the Court’s ‘activism’ see Crawford in this volume at Chapter 5.
97 As per Art 25 of the ILC’s Articles on State Responsibility, adopted in 2001. The ILC’s commen-
tary to the provision (n 36) acknowledges the impact of the Court’s Gabčíkovo-Nagymaros Judgment in
para 11.
98 Gabčíkovo-Nagymaros (n 89) para 53. The Court relied on its statement regarding the importance
of environmental protection made in the 1996 Nuclear Weapons opinion (n 73). As noted by Stephens,
(n 40) 182, ‘[t]he repetition of this statement in the Gabčíkovo-Nagymaros Project case communicated a
clear recognition by the Court of the growing importance of environmental concerns within inter-
national law.’
under certain strictly defined conditions’.99 As Hungary had described the environ-
mental impact of the barrage system to be ‘uncertain’, the case—thought the
Court—really concerned a ‘potential’ peril. That, however, was not sufficient
according to the rules of state responsibility. What is more, necessity was not the
only available response: Hungary did have options other than to suspend and
terminate the 1977 Treaty, which could have been flexibly applied to meet some
of its demands.100
Just as necessity was applicable in principle but rejected in casu, so was Hungary’s
alternative argument based on emerging rules of international environmental law.
In addressing it, the Court emphasized treaty stability, but recognized the potential
for reform ‘from within’. In its assessment, the 1977 Treaty allowed the parties to
reflect novel requirements of international environmental law: its Articles 15, 19,
and 20 contained general, evolving, and continuing obligations requiring the
parties, while implementing the Treaty, to take into consideration the quality of
water in the Danube River, the protection of nature, and new environmental
norms. The Court emphasized the importance of these obligations, noting that
‘vigilance and prevention are required on account of the often irreversible character
of damage to the environment and the limitations inherent in the very mechanism
of reparation in relation to this type of damage.’101 However, the responsibility to
monitor environmental implications of the barrage system was shared between
the parties; and it required consultation and negotiation rather than unilateral
action.102 More generally, the Court, albeit cautiously and rather succinctly,
endorsed the concept of sustainable development as the key ‘linkage’ between
environmental and economic concerns:
Such new norms have to be taken into consideration, and such new standards given proper
weight, not only when States contemplate new activities but also when continuing with
activities begun in the past. This need to reconcile economic development with protection
of the environment is aptly expressed in the concept of sustainable development.103
As these statements suggest, the Gabčíkovo-Nagymaros Judgment endorsed many of
Hungary’s environmental considerations in principle, but still considered Hungary
to be bound by the 1977 Treaty. Environmental law was thus strengthened, but in
the specific instance seemed to yield to arguments in favour of treaty stability and
state responsibility. Interestingly, in one particular aspect, environmental consider-
ation did however have an immediate impact on the outcome of the case. As
Hungary thus was in breach of the 1977 Treaty, Slovakia’s unilateral implementa-
tion of ‘Variant C’ might have qualified as a countermeasure. The Court accepted
as much, but held that Slovakia’s response was not proportionate and thus could
not be justified.104 In reaching this finding, it relied on the principle of equitable
and reasonable utilization of international watercourses. This principle—derived
99 Gabčíkovo-Nagymaros (n 89) para 51. 100 Gabčíkovo-Nagymaros (n 89) para 55.

101 Gabčíkovo-Nagymaros (n 89) para 140. 102 Gabčíkovo-Nagymaros (n 89) para 112.
103 Gabčíkovo-Nagymaros (n 89) para 140. For comment on this point see Lammers (n 89) 318.
from the equality of all riparian States in relation to uses of watercourses and
subsequently codified in the 1997 United Nations Convention on Non-
Navigational Uses of International Watercourses105—was considered to be a
principle of general international law that guided the implementation of propor-
tionality.106 Slovakia’s failure to respect the principle of equitable and reasonable
use of the Danube meant that its unilateral response was in violation of inter-
national law.
Some fifteen years later, the Gabčíkovo-Nagymaros Judgment remains remarkable
as an attempt to apply concepts of treaty law and state responsibility in an age of
environmental awareness. The Court’s attempt to explore the fault line between
environmental law and general international law is certainly not immune from
criticism. As regards sustainable development, for example, a fuller engagement
might have helped clarify the status and implications of the principle.107 As in
earlier cases decided during the 1990s, the opinion of Judge (Vice-President)
Weeramantry explored many issues that the majority only touched upon. To
him, sustainable development was an established principle of contemporary inter-
national law aimed at reconciling two competing legal concepts, the right to
development and environmental protection. Vice-President Weeramantry also
highlighted the connection between sustainable development and environmental
impact assessment, which he viewed as a legal requirement,108 and emphasized
that environmental rights were human rights, thus strengthening the argument
for treaty change.109 These statements—as well as similar pronouncements made
on the impact of environmental considerations on boundary delimitation in
the Kasikili Sedudu case110—provide support for a more robust construction of
international environmental law—one whereby it would not be a factor among
others, but have a controlling influence on the application of general international
law. While the majority of the Court’s judges, during the proceedings of the 1990s,
were not prepared to embrace such a robust construction, Judge Weeramantry’s
105 United Nations Convention on the Law of Non-Navigational Uses of International
Watercourses (1997) 36 ILM 700.

107 There are numerous publications on this subject. See, eg: D French, International Law and
Policy of Sustainable Development (Manchester: MUP; New York: Juris Publishing, Melland Schill
Studies in International Law, 2005); P Brandon and P Lombardi, Evaluating Sustainable Development
(Oxford: Blackwell, 2005); T Strange and A Bayley, Sustainable Development. Linking Economy, Society
and Environment (Paris: OECD, 2008).
108 Separate Opinion of Judge Weeramantry, Gabčíkovo-Nagymaros (n 89) 88.
109 See Separate Opinion of Judge Weeramantry, Gabčíkovo-Nagymaros (n 89) 114: ‘Environ-
mental rights are human rights. Treaties that affect human rights cannot be applied in such a manner as
to constitute a denial of human rights as understood at the time of their application. A Court cannot
endorse actions which are a violation of human rights by the standards of their time merely because
they are taken under a treaty which dates back to a period when such action was not a violation of
human rights.’
110 Dissenting Opinion of Judge Weeramantry, Kasikili/Sedudu Island (Botswana v Namibia)
[1999] ICJ Rep 1045, paras 91–2: in the presence of a natural reserve that ought not to be divided,
the Court ‘should consider itself empowered to make a slight deviation from the strict geometric path
indicated by the boundary treaty’ or ‘constitute, in the larger interests of both parties and indeed of the
world community, a joint regime over the area so that neither party is deprived of its use’. On the role
of equitable principles see also Separate Opinion of Judge Kooijmans, Botswana v Namibia (n 110)
paras 36–7.
opinions may perhaps best be seen as an avant-garde view—that like other avant-
garde approaches might one day become the majority view.
Whatever its shortcomings as an individual decision or as an exercise in legal
development, Gabčíkovo-Nagymaros provided the Court with an opportunity to
confirm that, within the space of a few decades, international environmental law
had entered the mainstream of international law. Unlike earlier decisions, the case
was less about emphasizing that, in the abstract, environmental law was relevant,
than about exploring its relationship with other concepts. Together with, but more
pronouncedly than, Nuclear Weapons, it was about operationalizing international
environmental law in disputes turning on concepts of general international law.
6. Proceduralizing environmental law: Pulp Mills

Contrary to what might perhaps have been expected, the sequence of environ-
mental proceedings (Nuclear Tests, Nuclear Weapons, and Gabčíkovo-Nagymaros)
did not immediately give rise to a new ‘wave’ of environmental litigation before the
ICJ.111 Environmental arguments were made in cases like the Dispute Regarding
Navigational and Related Rights,112 but did not play a central role. It was the Pulp
Mills case,113 brought by Argentina against Uruguay in 2006, that saw the Court
address environmental questions head-on, and that would yield a number of crucial
pronouncements.
More than the cases that preceded it, Pulp Mills was a ‘proper’ environmental
case, in which environmental concerns prompted the application and defined the
parties’ arguments. Argentina asserted that Uruguay’s ‘authorization, construction
and future commissioning of two pulp mills on the River Uruguay’ breached the
terms of the 1975 River Uruguay Statute114 and notably referred to ‘the effects of
such activities on the quality of the waters of the River Uruguay and on the areas
affected by the river’.115 The 1975 Statute requires the two states to coordinate and
cooperate in the management of the river, and to set up an institution to that end,
and formulates substantive principles governing the use of the river. When inter-
preting and applying these provisions, the Court made a number of relevant
pronouncements.
First, in some respects, it affirmed and consolidated the broad lines of its earlier
jurisprudence. Hence it affirmed the sic utere tuo principle116 and provided some
insight into its understanding of sustainable development, which it linked to the
111 Hence the Court’s decision not to re-constitute, in 2006, its Environmental Disputes Chamber:
see section 1 for brief comment.

112 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) [2009] ICJ Rep 213.
113 Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14.
114 English translation in 1295 UNTS 340.
115 Pulp Mills (n 113) Application by Argentina, para 2 (<http://www.icj-cij.org/docket/files/135/
10779.pdf> (accessed 17 May 2013)).

116 Pulp Mills (n 113) para 101.
principle of equitable and reasonable utilization of water.117 As regards another

broad concept, the precautionary principle, the Court went beyond its previous
jurisprudence by stressing that precaution did not usually entail a reversal of the
burden of proof. Rejecting Argentina’s contention to that effect in cases involving
transboundary harm, the Court found that it remained for the applicant to establish
the facts (harm, damage, causation, etc) on which its claim is based:118 ‘while
a precautionary approach may be relevant in the interpretation and application of
the provisions of the Statute, it does not follow that it operates as a reversal of the
burden of proof ’.119
Second, and more importantly, beyond these general statements, the Pulp Mills
Judgment is noteworthy for the Court’s pronouncements on procedural aspects of
international environmental law. Throughout, the Court emphasized the import-
ance of cooperation and coordination in the joint management of the river. This
implied a duty to inform a neighbouring state as soon as possible of a project or
activity with potential transboundary effects, ie ‘as soon as [the State engaged in a
project] is in possession of a plan which is sufficiently developed to permit a
preliminary assessment’.120 Furthermore, states were also required to negotiate in
good faith with a view to preventing transboundary harm, which did not mean an
agreement had to be reached,121 but at least imposed upon states an ‘obligation so
to conduct themselves that the negotiations are meaningful’.122 While these
attempts to clarify the scope of duties of cooperation and coordination are no
doubt important, the Judgment’s key finding concerns a particularly prominent
procedural mechanism, namely EIA. Unlike many multilateral treaties, the 1975
Statute did not expressly require the parties to conduct EIAs. Still, the Court
considered that such a requirement derived from general international law:
[T]he obligation to protect and preserve, under Article 41 (a) of the [1975] Statute, has to be
interpreted in accordance with a practice, which in recent years has gained so much
acceptance among States that it may now be considered a requirement under general
international law to undertake an environmental impact assessment where there is a risk
117 See Pulp Mills (n 113) eg para 177, where the Court mentions the ‘interconnectedness between
equitable and reasonable utilisation of a shared resource and the balance between economic develop-
ment and environmental protection that is the essence of sustainable development’.
In a similar vein, in its Interim Order of 21 January 2007, the Court had already observed that ‘the
present case highlights the importance of the need to ensure environmental protection of shared
natural resources while allowing for sustainable economic development; whereas it is in particular
necessary to bear in mind the reliance of the Parties on the quality of the water of the River Uruguay for
their livelihood and economic development; whereas from this point of view, account must be taken of
the need to safeguard the continued conservation of the river environment and of the rights of
economic development of the riparian States’. Pulp Mills on the River Uruguay (Argentina v Uruguay)
(Provisional Measures) [2007] ICJ Rep 3, para 80.
118 Pulp Mills (n 113) para 162
121 Pulp Mills (n 113) para 150 (citing Railway Traffic between Lithuania and Poland (Advisory
Opinion) (1931) PCIJ Ser A/B No 42, 116).

122 Pulp Mills (n 113) para 146 (citing North Sea Continental Shelf (Germany/Denmark; Germany/
Netherlands) [1969] ICJ Rep 3, para 85).

that the proposed industrial activity may have a significant adverse impact in a transbound-
ary context, in particular, on a shared resource.123
At the same time, the Court refused to specify, in the abstract, the exact scope and
content of an EIA. It did stress (taking up a point made by Judge Weeramantry in
Gabčíkovo-Nagymaros) that ‘once operations have started and, where necessary,
throughout the life of the project, continuous monitoring of its effects on the
environment shall be undertaken’.124 However, the Judgment left open how much
information states would have to provide in their transboundary EIA documenta-
tion, and it even accepted that in the circumstances of the case, ‘no legal obligation
to consult the affected populations ar[ose] for the Parties’.125 This suggests that the
customary duty to conduct EIAs may be less onerous than obligations imposed by
multilateral conventions. Nevertheless, the fact remains that the obligation to
undertake EIAs has been explicitly acknowledged as a duty under customary
international law, which is a holding of major relevance.
7. The diversity of international environmental law: pending cases
To the preceding sections, which address the Court’s existing jurisprudence on

questions of international environmental law, some short comment may be added
on the issues currently before the Court. These issues are highly relevant and diverse
in nature, suggesting that the next decade of ICJ jurisprudence will yield further
important contributions to the development of the field. Three issues in particular
stand out.
Firstly, the twin cases of Certain Activities Carried out by Nicaragua in the Border
Area126 and Construction of a Road in Costa Rica along the River San Juan,127 both
involving Costa Rica and Nicaragua, concern the impact on the environment of
construction projects carried out along the Costa Rican-Nicaraguan border. They
will provide the Court with an opportunity to affirm and develop its Pulp Mill
jurisprudence and to assess the effect, on construction projects, of obligations
arising under specialized treaties such as the Ramsar Convention on Wetlands128
and/or the Biodiversity Convention.129
Secondly, the Aerial Herbicide Spraying (Ecuador v Columbia) case130 also
involves neighbouring states, but concerns transboundary pollution rather than
123 Pulp Mills (n 113) para 204. 124 Pulp Mills (n 113) para 205.
126 See Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nigaragua)
<http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=crn&case=150&k=ec> (accessed 17
May 2013) and <http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=ncr2&case=152&k=
7f> (accessed 17 May 2013) for information.
127 See Construction of a Road in Costa Rica along the River San Juan (Nicaragua v Costa Rica)
<http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=ncr2&case=152&k=7f> (accessed 17
May 2013) for information.
128 996 UNTS 243.
129 996 UNTS 243.
130 See <http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=ecol&case=138&k=ee> (ac-
cessed 17 May 2013) for information.

limits on construction activities. Ecuador asserts that by using herbicides to destroy

coca and poppy plantations in the frontier area, Colombia caused serious damage to
individuals, crops, animal, and the natural environment on the Ecuadorian side of
the frontier. The case is perhaps best seen as a contemporary version of the famous
and often misunderstood Trail Smelter case.131 It will enable the Court to comment
on the requirements of transboundary pollution claims in the face of uncertain
causality and, perhaps, to the clarify the status of the ILC’s 2001 Draft Articles on
the Prevention of Transboundary Harm from Hazardous Activities.132
Finally, Whaling in Antarctic (Australia v Japan)133 is the first ICJ case squarely
raising issues of animal welfare, notably the protection of minke whales, fin whales,
and humpback whales. In its application, Australia asserts that by continuing to
conduct ‘scientific whaling’ under the Japanese Whale Research Programme under
Special Permit in the Antarctic (‘JARPA II’), Japan is in breach of obligations under
the International Convention for the Regulation of Whaling, as well as its other
international obligations for the preservation of marine mammals and marine
environment. Because of the general and longstanding public interest in the
protection of marine mammals, this case is likely to define the public perception
of the Court as a protector of environmental concerns.
8. The nature and relevance of the Court’s contribution

The survey of ICJ jurisprudence on environmental issues can perhaps best be seen
as a gradual rapprochement : after cautious beginnings, the Court has embraced
international environmental law and today can be seen as one of its advocates.
Historically, this development—drawing on the work of Viñuales134—is perhaps
best viewed as a three-stage process. The first period comprises pronouncements
on general international law that would be applied to environmental concerns
(Corfu Channel and Barcelona Traction). The second period (notably Gabčíkovo-
Nagymaros and Nuclear Weapons) is one of consolidation and mainstreaming.
Finally, during the third, and current, stage, the Court is beginning to move
from general principles to specific norms of international environmental law and
to influence their interpretation.
As the third period is only just beginning, from the perspective of legal develop-
ment, the Court’s main contributions so far have concerned, not the details of
international environmental law, but broader conceptual issues. A string of pro-
nouncements affirmed the importance of environmental concerns in general terms,
without necessarily drawing specific legal consequences. Through these statements
(in Nuclear Weapons, Nauru, and Nuclear Tests II) the Court may have contributed
to the consolidation of international environmental law as a discipline. However, it
131 Trail Smelter (n 17). 132 ILC Ybk 2001/II(2), 148 (with commentaries).
133 See <http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=aj&case=148&k=64> (ac-
cessed 17 May 2013) for information.
134 Viñuales (n 12).
needs to be said that it was an imprimatur that typically came rather late, that
sanctioned a process rather than driving it, and that often remained at a general
level. Where the Court has gone beyond general endorsements, it has mostly
focused on broad and overarching concepts such as sustainable development
and—more recently—environmental impact assessment. Or, alternatively, it has
looked not at environmental law directly, but at the impact of environmental
considerations on other areas of international law, among them state responsi-
bility, self-defence, and the law of treaties. Indeed it is this last aspect, ie its
work on the ‘linkages’, that seems to have been the Court’s most obvious
contribution to the process of legal development to date: by analysing the
relationship between environmental law and general concepts, it has facilitated
the integration of a specialized sub-discipline into the fabric of traditional
international law. In so doing, the Court has acted as a stock-taking institution
or, to put it in somewhat more colourful terms, as a gate-keeper overseeing the
gradual mainstreaming of a previously exotic sub-discipline.135 As with many
‘mainstreaming exercises’, this has at times meant that the concepts to be
mainstreamed were in fact ‘toned down’ and read cautiously.
Seen in this light, the Court’s pronouncements on international environmental
law seem to have been of a rather similar nature to those on other specialized fields
in need of gradual mainstreaming, notably human rights law and, perhaps, the law
of self-determination. Looking back, it seems that the process is now largely
completed: international environmental law is recognized as an important branch
of international law, and perhaps the Court, as the guardian of general international
law, was uniquely placed to perform a mainstreaming role. At the same time, one
cannot help but notice that, at least to date, the Court’s impact on the specifics of
international environmental law has remained minimal: its jurisprudence provides
very little guidance on what precisely international environmental law requires
states to do or how the general notions can be translated into specific commands.
Specific rights and obligations are being generated through environmental treaties
in particular, and typically interpreted and applied within treaty-specific mechan-
isms. Unlike in other fields of international law, the Court’s role within those treaty
regimes is limited: reliance is placed on deliberative and non-adversarial processes,
on meetings and conferences of parties, or on treaty bodies. The day-to-day
application and development of international environmental law is their province,
and the ICJ’s forays into specific aspects have remained limited. This, one hastens
to add, may very well change, at least incrementally, as current proceedings require
the Court to engage in the interpretation of the Ramsar and Biodiversity Conven-
tions or to clarify the scope of the moratorium on whaling. Yet it seems safe to
predict that simply because of the limited opportunities it has to pronounce on
aspects of environmental law, the Court’s main role will remain that of a generalist
looking at the broader concepts and linkages.
135 A point rightly emphasized by Viñuales (n 12) 258.

PART VIII
CONCLUSION
16
The ICJ as a ‘Law-Formative Agency’:
Summary and Synthesis
Christian J Tams
1. Introduction
The preceding chapters provide evidence of the diversity and importance of the
pronouncements of the International Court of Justice (ICJ or ‘the Court’) on aspects
of substantive international law, just as they highlight factors restricting the Court’s
influence on the development of international law. The information they process,
and distil, provides a solid grounding which should inform future discussions of the
ICJ’s role as a ‘law-formative agency’1—discussions, which, as noted in the General
Introduction, are all too often guided by fears about activist judicial ‘legislation’, or
inspired by visions of international courts elevating international law to a higher level.
The evidence presented in the present book bears out neither grave concerns nor great
exaggerations; instead it allows us to identify ‘realistic horizons’2 for the development
of international law by the ICJ. In a discourse dominated by conceptual debates and
specific case studies, this, it is submitted, is an important contribution.
The concluding remarks that follow seek to summarize and synthesize the main
findings of the preceding chapters and spell out a number of propositions about the
ICJ’s role in the process of legal development. The treatment is necessarily broad-
brush. However, it is hoped that it will permit a comparative assessment of the
Court’s relative influence on particular fields of the discipline.
2. Taking stock
Any attempt to assess the Court’s role as a ‘law-formative agency’ must proceed
from concrete evidence. So what has been the ICJ’s influence on the development
of international law? The preceding chapters provide a wealth of information in this
respect; but four points would seem to stand out: (1) the ICJ’s jurisprudence has an
1 The term is borrowed from O’Connell whose analysis of the topic, notwithstanding its brevity,
remains instructive: DP O’Connell, International Law, vol I (London: Stevens and Sons, 2nd edn 1970) 31.
2 Cf R Falk, ‘Realistic Horizons for International Adjudication’ (1970–1971) 11 Virginia JIL 314.
impact on practically all areas of contemporary international law, (2) ICJ pro-
nouncements are generally considered to be authoritative pronouncements on the
law, (3) the ICJ’s influence as a law-formative agency varies considerably among
the different areas under review, and (4) ICJ pronouncements have contributed to
the development of international law in diverse ways, affecting both customary
international law and treaties. These propositions will be explored in turn.
2.1 ICJ pronouncements are influential across the spectre

of international law
Ninety years of international jurisprudence has left its traces on almost the entire
spectre of contemporary international law. Through judgments and advisory opin-
ions, the ICJ and its predecessor, the Permanent Court of International Justice
(PCIJ), have left an imprint on all areas of international law addressed in the book.
To some extent, this could be said to reflect the choice of topics addressed in
the preceding chapters. With respect to state responsibility or diplomatic protection,
early pronouncements by the Court—such as the ‘Chorzów dictum’3 or the ‘Mav-
rommatis formula’4—have become important points of reference for the development
of the law. Similarly, the relevance of ICJ decisions to the understanding of aspects of
treaty law (reservations being a prominent example), or of territorial and boundary
questions, is widely acknowledged. In these areas, as well as with respect to the law of
the United Nations (of which the Court is the ‘principal judicial organ’5), it may not
come as a surprise to see the Court influence international law.
Yet the analysis illustrates that ICJ pronouncements have contributed to the
development of international law in many other fields too. In fact, it seems difficult
to think of broadly-defined areas of international law in which ICJ holdings are of
no relevance. The distinctive feature of the Court, namely its potentially unlimited
scope of jurisdiction ratione materiae, is reflected in its jurisprudence: as the Court
has come to address questions relating to many, if not most, areas of international
law, its jurisprudence has become a general element of international legal develop-
ment. (It is worth noting that—as the brief references to Mavrommatis and
Chorzów Factory suggest—the process began early on, soon after the PCIJ’s estab-
lishment. Since then, the judicial contributions have accrued over time and have
covered more and more areas of international relations.) The foregoing contribu-
tions illustrate this with respect to aspects as diverse as the interpretation of ‘armed
attack’ in Article 51 of the UN Charter;6 positive obligations to prevent human
rights violations;7 the duty to conduct environmental impact assessments;8 and the
scope of immunities enjoyed by serving foreign ministers.9 On all these issues, and
3 Factory at Chorzów (Merits) (1928) PCIJ Ser A No 17, 29. See Crawford in this volume, at 72.
4 Mavrommatis Palestine Concessions, Judgment No 2 (1924) PCIJ Ser A No 2, 12. See Parlett in this
volume, 89–90.
5 Article 92 of the UN Charter. 6 Gray in this volume, 251–4.
7 Simma in this volume, 310 and 324. 8 Fitzmaurice in this volume, 370–2.
9 O’Keefe in this volume, 115–20.
Synthesis 379
on many more, anyone seeking to assess the state of contemporary international law
will come across influential ICJ (or PCIJ) pronouncements. Put differently, the
Court’s jurisprudence has left its mark ‘across the board’ of contemporary inter-
national law; few areas are completely sealed off from its influence.
2.2 ICJ pronouncements are generally influential

It is implicit in the foregoing comments that ICJ pronouncements are usually treated
as relevant contributions to the process of legal development. Their relevance can take
a variety of forms. In some instances, the ICJ, through its jurisprudence, is considered
to have clarified the law in contested areas.10 Many ICJ decisions are credited with
having recognized legal developments and thereby ‘ratified’ them.11 Some judgments
or opinions have ‘shored up’ orthodox approaches that had come under pressure,
while others have embraced novel concepts. Finally, many pronouncements have
been picked up in subsequent attempts at codification or clarification, notably in
international treaties and texts of the International Law Commission (ILC).12
The general impression gained from the preceding chapters is that in most cases,
ICJ decisions in fact are accepted as influential contributions to the legal process.
This is not to suggest that contributors always agreed with them: in fact, examples
of (what contributors would consider) ‘missed opportunities’ or disappointing
outcomes are easy to find.13 And yet, even where this is so, the analysis confirms
O’Connell’s perception that ICJ decisions are accorded ‘a truly astonishing defer-
ence’.14 This, it is worth noting, also applies to pronouncements that were
controversial when initially made. Close decisions taken against strong dissents
(such as the Nicaragua Judgment15 or the Genocide Advisory Opinion16) seem to
have matured with age and have come to be accepted notwithstanding initial
criticism. And moreover, as the last example suggests, influence is not dependent
on the binding nature of the pronouncement. Non-binding advisory proceedings
have proved to be an important vehicle of legal development, as evidenced by
the Court’s pronouncements in the proceedings concerning the Israeli Wall 17
10 See O’Keefe in this volume, 115, 123 (discussing the Court’s rejection of a human rights
exception to immunity); as well as Gowlland-Debbas in this volume, 36, and Simma in this volume,
305, 324 (on reservation to treaties).
11 See eg Shaw in this volume, 161–2 (commenting on the Court’s ‘approval’ of the legal character
of self-determination); Zimmermann in this volume, 63–4 (recognition of automatic succession to

localized treaties).
12 The interaction between the ICJ and the ILC in the clarification of international responsibility is
probably the clearest example. For brief comment see 2.4.2.

13 See eg Fitzmaurice in this volume, 369–70 (criticizing the Court’s cautious pronouncements on
sustainable development); Parlett in this volume, 104–5 (suggesting the Court should have looked at
bilateral treaty practice when considering diplomatic protection of shareholders).
14 O’Connell (n 1) 32.
ICJ Rep 14.



(formulating standards on the territorial scope of treaties18) or Nuclear Weapons19
(providing the Court ‘with a rare opportunity to set out its views on . . . the law
prohibiting certain means of conduct’20). All this suggests that ICJ pronounce-
ments generally enjoy a privileged status: of course, some are (to adapt a phrase by
Paulsson) ‘destined to become ever brighter beacons’ than others, but few ‘flicker
and die near-instant deaths’.21
There are limits, though, and they, too, are implicit in the foregoing comments.
While generally influential, ICJ pronouncements are not ‘sacrosanct tablets of
stone’.22 If they are generally shown deference (indeed ‘truly astonishing deference’23),
so too can deference be withheld. This does not seem to happen often (and may at
times be a matter of perspective or interpretation24), but it is possible. Lowe and
Tzanakopoulos discuss two prominent examples: the ‘reversal’ of the Lotus holding on
port state jurisdiction over collisions on the high seas in subsequent multilateral
treaties;25 and the international community’s abandonment of the Court’s regime of
fisheries zones, put forward in the 1974 (Icelandic) Fisheries cases,26 and quickly
superseded by the broader notion of exclusive economic zones.27
These examples are exceptional, but they illustrate a more fundamental point.
While influential, ICJ decisions are not an autonomous source of law; they operate
within a broader legal process. This is widely acknowledged and unlikely to come as
a major surprise. Yet perhaps it is relevant to note that, while the matter is at times
discussed in some detail,28 the preceding contributions treat it as a ‘non-issue’.
Neither ‘precedent’ nor the notion of a (formal) ‘source of law’ in the sense of
Article 38(1)(d) of the Court’s Statute feature at all in the detailed analyses. It is
simply taken for granted that ICJ decisions are neither. Yet this realization is the
starting-point, not the end, of the debate about the Court’s role. It is a debate
played out below the level of formally binding sources. As noted by Terris,
Romano, and Swigart, from the perspective of legal development, ‘[t]he formal
nature of a judicial finding does not matter’.29
18 See eg Simma in this volume, 309.

20 Kreß in this volume, 273.
21 J Paulsson, ‘International Arbitration and the Generation of Legal Norms: Treaty, Arbitration
and International Law’ in AJ van den Berg (ed), ICCA Congress Series No. 13: International Arbitration
2006: Back to Basics? (The Hague: Kluwer, 2007) 879, 881.
22 Berman in this volume, 22.
23 O’Connell (n 1) 32.
24 Contrast eg the differing perspectives on the ‘fate’ of the Genocide Advisory Opinion (n 16):
Gowlland-Debbas and Simma see it as an important contribution (in this volume, at 36 and 324),
while Berman emphasizes how subsequent developments modified and changed it (in this volume, 20).
25 Lowe and Tzanakopoulos in this volume, 190–1.
26 Fisheries Jurisdiction (UK v Iceland) (Merits) [1974] ICJ Rep 3 and Fisheries Jurisdiction (Germany
v Iceland) (Merits) [1974] ICJ Rep 175.

27 Lowe and Tzanakopoulos in this volume, 191.
28 See eg GJH van Hoof, Rethinking the Sources of International Law (Deventer: Kluwer, 1983)
169–76; I Scobbie, ‘Res Judicata, Precedent and the International Court. A Preliminary Sketch’ (1999)
20 Australian Ybk of Intl L 299; as well as many sources cited in M Shahabuddeen, Precedent in the
World Court (Cambridge: Grotius Publications, 1997) 67–96.
29 D Terris, CPR Romano, L Swigart, The International Judge (Oxford: OUP, 2007) 121.
Synthesis 381
2.3 The ICJ’s impact is ‘sector-specific’

While the preceding comments stress general features of the Court’s jurisprudence,
the impact of ICJ pronouncements on the different areas of international law varies.
Relevant ‘across the board’ and generally considered influential, the Court’s juris-
prudence affects different areas of international law in very different ways. Each of
the preceding chapters focuses on one particular area, and of course reflects the
perspective of its author or authors (who may evaluate the Court’s role according to
different standards). However, a comparative assessment reveals obvious differ-
ences. This applies to the modalities of the Court’s contribution,30 but more
fundamentally to the extent and degree of the Court’s influence on the develop-
ment of international law in a given area. This in fact seems to be the key factor
emerging from the various contributions: the Court’s impact varies greatly between
the different areas of international law; it is ‘sector-specific’. At the risk of oversim-
plification, three levels of influence can be distinguished: a) significant contribu-
tions by the Court, b) targeted influence on specific issues within a broader area,
and c) with a particular focus on linkages between a particular area and general
international law.
2.3.1 Significant contribution

In some fields, the Court’s jurisprudence has been a significant factor in legal
development. Of the areas addressed in the book, this would seem to apply to the
law of state responsibility, diplomatic protection, the law of treaties, the law of
territory, and the legal regime governing recourse to force. In all five areas, PCIJ and
ICJ holdings have contributed to the development of central aspects of the
applicable law. On diplomatic protection, Kate Parlett notes how the PCIJ and
ICJ have affirmed the ‘Vattelian’ understanding of diplomatic protection as an
inter-state claims mechanism, have shaped the interpretation of nationality; and
clarified the interaction between general and special claims mechanisms. With
respect to responsibility, James Crawford’s contribution highlights how a string
of Court rulings has clarified or consolidated crucial aspects of the contemporary
regime: this is true with respect to attribution of conduct originating from outside
established state structures; the system of remedies; and conditions governing the
making of claims (including, but not limited to, diplomatic protection).31
Unlike responsibility and diplomatic protection, the law of treaties, from 1969
onwards, has been regulated in treaty form. The codification could draw on
important judicial pronouncements (eg influencing core aspects of the general
30 A matter to be addressed in 2.4.

31 This indeed might be taken to confirm Alain Pellet’s view that ‘[t]he law of international
responsibility of the State has always been essentially judge-made’: see A Pellet, ‘Some Remarks on
the Recent Case Law of the International Court of Justice on Responsibility Issues’ in P Kovacs (ed),
International Law—A Quiet Strengh * Le droit international—une force tranquille. Miscellanea in
memoriam Geza Herczegh (Budapest: Pazmany Press, 2011) 111, 112.
regime such as reservations, or treaty interpretation), which continue to influence
the interpretation of key provisions of the ‘Vienna regime’. Beyond those ‘bread
and butter’ issues,32 Vera Gowlland-Debbas argues that the Court has been
‘sensitive to the need to approach treaty relations against the background of an
evolutive international system’ characterized by normative hierarchies, collective
interest treaties and the emergence of non-state actors as participants in treaty
relations.33
Beyond treaty law, responsibility, and diplomatic protection, the Court has
made significant contribution to the development of two substantive areas of
international law addressed in the preceding chapters: territory and recourse to
force. Through its long-standing and regular engagement with core issues, ‘the
Court’ (in the words of Malcolm Shaw) ‘has come to be accepted as an authoritative
guide’ to the law of territory.34 Amongst other things, ICJ decisions have clarified
the relationship between effectivités and legal title, the scope and nature of the
right to self-determination, and the notion of uti possidetis. Finally, while the Court
has traditionally had fewer opportunities to pronounce on questions relating to the
use of force, Christine Gray’s analysis demonstrates that it has addressed core
aspects of the legal regime. Its decisions provide vital clues to the understanding
of the notions of ‘force’ and ‘armed attack’. Beyond that (and just as in relation to
the law of treaties), the Court’s jurisprudence also provides guidance on broader
issues such as the place of the jus ad bellum in the international legal system and
the possibility of establishing exceptions to the ban on force not expressly recog-
nized in the UN Charter.
2.3.2 Targeted influence on particular aspects of the law

In other areas, the Court’s footprint is not quite as visible, and its jurisprudence has
had an impact on discrete, rather than central, aspects of the law. This is not to
suggest that the ICJ had been irrelevant to the development of international law;
however, its influence has been more ‘targeted’. The development of the law of the
sea may perhaps best illustrate the general point. Over time, the ICJ has no doubt
had its share of maritime cases, and in fact maritime boundary delimitation is often
considered to be a textbook example of ‘ICJ-shaped law’.35 However, as Vaughan
Lowe and Antonios Tzanakopoulos note, when looking at the law of the sea in its
entirety, maritime boundary delimitation has developed rather differently than the
bulk of the law of the sea. Core issues that define the contemporary regime—one
might think of, for example, zonal approaches, freedom of the high seas, marine
environmental law, etc—have been shaped not by ICJ decisions, but international
32Gowlland-Debbas in this volume, 29. 33 Gowlland-Debbas in this volume, 51.

34Shaw in this volume, 176.
35 A Pellet, ‘Shaping the Future of International Law: The Role of the World Court in Law-
Making’ in M Arsanjani et al (eds), Looking to the Future. Essays on International Law in Honor of
W. Michael Reisman (The Hague: Martinus Nijhoff, 2010) 1065, 1070–3.
Synthesis 383
practice and treaty-making. In fact, outside delimitation (and perhaps the passage
through straits), the ICJ’s influence has been limited at best.36
No area of law is the same, but similar patterns—of targeted influence on
discrete questions—can be discerned elsewhere. With respect to immunities, recent
ICJ decisions have left a mark on the regime of personal immunities and on
exceptions to immunity. However, its prominent jurisprudence is of recent origin
and—as Roger O’Keefe observes—‘[t]he ICJ was a latecomer to the law of
jurisdictional immunities’,37 pronouncing on questions at a time when the foun-
dations of the regime had been laid through private and public codification
attempts as well as domestic legislation and domestic court decisions. Similarly,
as regards UN institutional law, James Sloan and Gleider Hernández trace the
ICJ’s decisions on, amongst other things, personality and membership, but
conclude that the ‘the Court’s contribution to clarifying the institutional law
of the Organization has been one of modest persuasion’38: the bulk of Charter
law continues to be applied by other organs. On treaty succession, things do not
appear to be much different. According to Andreas Zimmermann, Gabč íkovo-
Nagymaros39 stands out for its firm pronouncement on territorially-grounded
treaties and the recent Croatian Genocide case40 may signal a more flexible
approach to declarations of succession.41 However, on many of the major
debates—on the clean slate principle, newly-independent states, and distinctions
among types of succession and between succession and identity—the ICJ’s voice
has not really been heard; these areas are influenced by treaty-making, and by
international and depositary practice.
The examples could be multiplied, but the central point will have become clear.
In most fields of international law discussed in the preceding chapters, the Court’s
jurisprudence has contributed to the process of legal development, but has been
restricted to specific (often discrete) aspects.
2.3.3 In particular: exploring linkages

With respect to other fields of international law addressed in the preceding chapters
(ie human rights, peoples and minorities, international environmental law, and
armed conflicts), the ICJ’s influence could probably also be characterized as
‘targeted’. However, more specifically, the Court seems to have focused on exploring
the linkages between these specialized regimes and general aspect of international law.
Bruno Simma’s contribution highlights, both the paucity of ICJ pronouncements
36 See Lowe and Tzanakopoulos in this volume, 178: ‘the Court’s influence on the development of
the law of the sea has not been great, and seems to be diminishing.’ Contrast Pellet (n 35) 1070: ‘But it is
probably in the field of the law of the sea that the Court’s contribution to the progressive development of
international law has been the deepest’ (emphasis in the original).
37 O’Keefe in this volume, 146.
38 Sloan and Hernández in this volume, 233.
39 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7.

41 Zimmermann in this volume, 63 and 66–7.
on core aspects of substantive human rights law (eg the interpretation of specific
rights), and the importance of the Court’s attempts ‘juridical “mainstreaming”’ of
human rights law—‘in the sense of integrating this branch of the law into both the
fabric of general international law and its various other branches’.42 The Court’s
important holdings on broad conceptual questions (such as reservations to human
rights treaties, the territorial scope of obligations, the erga omnes concept) can be
contrasted to an almost complete absence of holdings on the ‘bread and butter
issues’43 of international human rights law. As regards rights of peoples, Gentian
Zyberi’s discussion equally highlights that ICJ pronouncements have laid down or
affirmed broad principles, without necessarily spelling out details;44 and presumably
Zyberi would agree with Shaw that ‘the role of the Court in the process has provided
the essential stamp of authority and legitimacy’, while ‘much of the actual practice in
establishing and developing the principle [of self-determination] has taken place in
the United Nations’.45
Looked at from a distance, the ICJ’s impact on international humanitarian law
and international environmental law is not dissimilar: just as with human rights
law, the Court’s contribution mostly concerns linkages. Claus Kreß notes that the
Court had ‘powerfully reconceptualized [the law of armed conflict] in a humani-
tarian spirit’, but its ‘contribution to the detailed elaboration of this field of law
remains limited’.46 On international environmental law, Malgosia Fitzmaurice sees
the Court as a ‘gate-keeper overseeing the gradual mainstreaming of a previously
exotic sub-discipline’, but firmly states that its ‘impact on the specifics of inter-
national environmental law has remained minimal’.47 The general picture
emerging seems to be that of a Court engaging with broad conceptual questions,
while adding little to the (perhaps more mundane) issues raised in the everyday
practice of treaty application. This chimes well with the Court’s perception of itself
as a ‘generalist institution’ and, in terms of its differentiated impact on legal
development, should be seen as a variation on the theme of ‘targeted influence’.
2.4 Modalities of legal development

Finally, the preceding contributions provide insights into the modalities by which the
Court has contributed to the development of international law. To some extent, this
matter has been touched upon already: ICJ pronouncements are likely to be picked
up by other actors and thereby become part of the international legal discourse, in
which they enjoy a privileged status.48 In this respect, different ICJ pronouncements
follow different pathways. However, three general trends can be made out.
42 Simma in this volume, 323–4. 43 Cf Gowlland-Debbas in this volume, 29.

44 Zyberi in this volume, 338–42. Arguably, the PCIJ’s influence on rights of minorities was of a
more comprehensive character: for a clear account see Zyberi in this volume, esp at 337: ‘The PCIJ did
not simply interpret the fairly ambitious minorities treaties agreed after World War I; through its legal
findings it also contributed significantly to laying the foundations and the standards for the present-day
international legal framework on minority protection.’
45 Shaw in this volume, 160. 46 Kreß in this volume, 296.
47 Fitzmaurice in this volume, 374. 48 See 2.2.
Synthesis 385
2.4.1 Treaty and custom

First, when looked at from the perspective of sources, the Court’s contributions
fall into one of two broad categories.49 They either determine whether a particu-
lar rule of customary international law exists or they opt for a particular interpret-
ation of a bi- or multilateral treaty provision. (By contrast, general principles
of law—at least in respect of the development of substantive international law—
seem to play no significant role.) Which ‘modality’ is used depends on the facts of
the case, which can turn on either treaty or custom, thus determining the Court’s
modus operandi: it will either apply rules of treaty interpretation or the rules on
custom formation.50 Yet not too much should be read into the distinction. The
law of sources has been sufficiently de-formalized51 (sanctioned by the Court’s
jurisprudence, which has broadened the range of argumentative techniques that
can be relied upon to establish the existence of a particular provision), to permit
recourse to a broad range of materials. In line with this, the preceding contribu-
tions do not point to principled distinctions between the Court’s two modes of
operation. Both custom and treaty can become ‘vehicles’ for the judicial develop-
ment of international law. Where a case is governed by customary international
law, the Court’s contribution consists of assessing whether international practice
and opinio juris are sufficient to give rise to a customary rule—a process enabling
it to make contributions, for example, to the development of the law of immun-
ities (Arrest Warrant,52 Jurisdictional Immunities53), responsibility (Gabčíkovo-
Nagymaros,54 Mavrommatis,55 Tehran Hostages,56 LaGrand,57 etc), treaty succes-
sion (Gabčíkovo-Nagymaros), or title to territory (Burkina Faso/Mali,58 Libya/
Chad,59 etc). When called upon to apply a treaty, the Court can be influential
by advancing a particular interpretation that often will be relied on outside the
scope of the particular dispute—as happened with respect to ‘ICJ-shaped’ con-
structions of UN Charter provisions (Admission to Membership;60 Namibia;61
49 See also T Ginsburg, ‘Bounded Discretion in International Judicial Lawmaking’ (2005) 45
Virginia JIL 631, 639–40 (discussing ‘Implicit Judicial Lawmaking—The Interpretation of Treaties
and the Finding of Custom’).
50 With regard to the latter, see H Lauterpacht, The Development of International Law by the
International Court of Justice (London: Stevens & Sons, 1958) 368: ‘Many an act of judicial legislation
may in fact be accomplished under the guise of the ascertainment of customary international law’.
51 For a detailed account see J d’Aspremont, Formalism and the Sources of International Law
(Oxford: OUP, 2012) esp 118 ff.


55 Mavrommatis (n 4).
56 United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3.
57 LaGrand (Germany v USA) [2001] ICJ Rep 466.
58 Frontier Dispute (Burkina Faso/Mali) [1986] ICJ Rep 554.
59 Territorial Dispute (Libya/Chad) [1994] ICJ Rep 6.
60 Conditions for Admission of a State to Membership in the United Nations (Article 4 of the Charter)

61 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16.
Congo v Uganda62), the Genocide Convention (Genocide cases63), or international
humanitarian law (Wall,64 Congo v Uganda65). Put differently, the Court operates
within the established system of sources and can contribute to the development of
international law through the interpretation of treaties and the identification of
custom.
2.4.2 Cooperation in legal development

Second, the preceding discussion highlights interesting forms of interaction be-
tween the ICJ and other law-formative agencies. The emerging picture is not
uniform, but a number of features stand out. The most prominent one is that of
a rather harmonious ‘partnership’ between the ICJ and the ILC. In a surprisingly
large number of areas, ICJ decisions have drawn on, and confirmed, views of the
ILC, which in turn has been able to refer to the Court’s jurisprudence in support of
its own views. The development of the law of state responsibility provides an
obvious example in point:66 suffice it to mention the impact of the cases like
Tehran Hostages 67 or Nicaragua 68 on Part One of the ILC’s Articles on State
Responsibility 69 or the Court’s subsequent validation of Articles 8 and 16 (as well
as, without express acknowledgement, Article 41) of the ILC’s text in the Bosnian
Genocide 70 and Wall 71 proceedings.72
The ILC has by no means been the ICJ’s only partner in legal development.
General Assembly resolutions have been an extremely fertile source of inspiration
for ICJ decisions (of which Nicaragua is only the most prominent73). Treaty
provisions, even where not binding as such, have frequently been relied upon as
evidence of custom.74 And more recently the Court—belatedly, many would
say75—has begun to draw on the work of specialized institutions such as the
63 See Croatian Genocide (n 40); Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43;
and Reservations to Genocide Convention (n 16).
64 Wall (n 17).
65 DRC v Uganda (n 62).
66 It is not the only one, though: the Court’s recent case law on diplomatic protection (Ahmadou
Sadio Diallo (Guinea v DRC) (Merits) [2010] ICJ Rep 639) would seem to follow a similar pattern of
cooperation between ICJ and ILC: see Parlett in this volume, 93–106.
67 Tehran Hostages (n 56).
68 Nicaragua (n 15).
69 ILC, Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001,
annexed to GA Res 56/83 (12 December 2001) and reproduced, with commentaries, in ILC Ybk
2001/II(2) 31.
70 Bosnian Genocide (n 63).
71 Wall (n 17).
72 For details see Crawford in this volume, 84–5.
73 Nicaragua (n 15) para 188. See Gray in this volume, eg at 244, 248.
74 Among them, to name but a few, the 1997 Watercourses Convention (see Fitzmaurice in this
volume, 368–9) or the 2004 Convention on Jurisdictional Immunities (see O’Keefe in this volume,
eg at 134–5).
75 See A Pellet, ‘Article 38’ in A Zimmermann, C Tomuschat, K Oellers-Frahm and CJ Tams (eds),
The Statute of the International Court of Justice—A Commentary (Oxford: OUP, 2nd edn 2012) 731,
858–62 (paras 316–20) with references.
Synthesis 387
International Criminal Tribunal for the former Yugoslavia (ICTY) or the human
rights treaty bodies and used their expertise to bolster its own findings.76 All this
suggests that the Court has not been a soloist, but has, fairly pragmatically, drawn
on the work of other potential ‘law-formative agencies’ to support, or reinforce, its
findings.
2.4.3 In particular: the ICJ as a ‘gatekeeper’

Third, the detailed discussions suggest that when contributing to the development of
international law, the Court has very often acted in one particular role: that of a
gatekeeper overseeing (and controlling) the evolution of particular rules and principles
of international law. This particular function is very clear in the Court’s handling of
matters involving human rights and international environmental law. The ICJ’s
jurisprudence on these two areas reflects the gradual mainstreaming of two initially
‘exotic’ sub-disciplines. In both fields, initial decisions saw the Court tread cautiously,
before it was to embrace human rights and environmental protection and by so
doing, in the words of Bruno Simma, to help make ‘human rights [or environmental]
arguments more readily acceptable to international law generalists’.77
In other areas of international law, ‘gatekeeping’ has taken different forms. Very
often, the Court has been able to contribute to legal development by recognizing
that a particular rule had acquired the status of customary international law: over
time, this has, for example, led to the development of international law on the basis
of unratified treaties78 or General Assembly resolutions.79 With respect to inter-
national treaties, the Court, by assessing subsequent practice, has often given its
imprimatur to processes of evolutive treaty interpretation80—or indeed put an end
to assertions of legal change.81 And of course, in the process of overseeing develop-
ments, the Court has quite frequently not only ‘mainstreamed’, but also modified
76 See eg Bosnian Genocide (n 63) para 403 (‘the Court takes fullest account of the ICTY’s trial and
appellate judgments dealing with the events underlying the dispute’); Diallo (Merits) (n 66) para 66
(while ‘the Court is in no way obliged, in the exercise of its judicial functions, to model its own
interpretation of the [International Covenant on Civil and Political Rights] on that of the [Human
Rights] Committee, it believes that it should ascribe great weight to the interpretation adopted by this
independent body that was established specifically to supervise the application of that treaty.’)
77 Simma in this volume, 324.
78 See eg Fitzmaurice in this volume, 368–9 (referring to the 1997 Watercourses Convention);
O’Keefe, in this volume, 134–5 (discussing the 2004 Convention on Jurisdictional Immunities).
79 See eg Sloan and Hernández in this volume, 213–16, and Gray in this volume, 244, 252
(commenting on the Court’s approval of GA Res 377A (V) (3 November 1950) and GA Res 3314
(XXX) (14 December 1974).
80 See eg Gowlland-Debbas in this volume, 36–43 (discussing examples of dynamic treaty inter-
pretation); Fitzmaurice in this volume, 370–1 (noting the Court’s interpretation of a 1975 River
Statute in the light of emerging norms of environmental law).
81 For prominent examples see eg the Court’s judgments in Arrest Warrant (n 52) and Jurisdictional
Immunities (n 53). O’Keefe provides a pertinent assessment: ‘According to its supporters, the Court has
in this way contributed to the restoration of sanity after a period of fractious disequilibrium. To its
opponents, the Court has thrown in its lot with the forces of reaction, variously spearheading and
sanctifying an international legal counter-reformation’ (in this volume, 148).
legal principles and rules, of which only a toned down version would be ‘sanc-
tioned’.82 These examples suggest that especially where the law is claimed to be
undergoing change, the ICJ will very often be seen as an arbiter. The Court in fact
seemed to accept such a role when, in the Nuclear Weapons Advisory Opinion and
having affirmed that it had no legislative mandate, it observed: ‘This is so even if, in
stating and applying the law, the Court necessarily has to specify its scope and
sometimes note its general trend.’83
3. Explaining the Court’s impact on legal development

The preceding chapters not only provide important insights into the nature, extent,
and modalities of the Court’s contribution to the development of international law.
They also provide a rich sample of evidence that can be used to explain the impact
of PCIJ or ICJ pronouncements. This is, to be sure, not a mechanical exercise and
no attempt will be made to measure or predict impact according to exact criteria.
However, it may be possible to get a clearer picture of the Court’s impact influence
as a ‘law-formative agency’ by seeking to address two questions: (i) which ICJ
pronouncements are likely to be influential and (ii) what factors determine whether
a particular area of law is more or less affected by ICJ pronouncements? While
commentators have frequently commented on the first of these questions, the
second so far has hardly been addressed. The subsequent sections will test explan-
ations advanced with respect to the first question, and identify a number of fairly
general factors that could help answer the second.
3.1 The impact of particular pronouncements

The first question has prompted much discussion over time. If PCIJ and ICJ
decisions require external validation in order to be influential, one wonders
which pronouncements are more likely to influence the development of inter-
national law. Commentators have advanced a range of explanations seeking to
identify (in Niels Petersen’s words) ‘factors of success’84 accounting for the impact
of specific holdings (or lack thereof ). Two of these have gained particular promin-
ence: first, commentators regularly argue that rationes decidendi should be ‘weight-
ier’ than obiter dicta; and second, there is support for the view that influence is
dependent on the quality of the Court’s reasoning. Focused as they are on a general
account of the Court’s role, the contributions to the book do not engage with these
explanations in detail. Yet they provide much evidence against which popular
explanations can be tested—and which suggests that common assumptions need
to be revisited.
82See eg Fitzmaurice in this volume, 374. 83 Nuclear Weapons (n 19) para 18.
84N Petersen, ‘Lawmaking by the International Court of Justice—Factors of Success’ (2011) 12
German LJ 1295.
Synthesis 389
3.1.1 Rationes decidendi versus obiter dicta

The first assumption that can be tested is based on a distinction between ratio and
obiter. While (typically) acknowledging that international law does not recognize a
theory of precedent in the common law sense, many commentators fall back on the
distinction when aiming to explain which ICJ pronouncements have, or should have,
an impact on the development of the law. Amerasinghe’s statement that ‘[m]ore
authority naturally attaches to the former [ie ratio] than to the latter [dicta]’,85 is merely
the most forceful expression of a popular argument; over time similar points have been
made by Sir Robert Jennings and (with variation) Mohamad Shahabuddeen.86
Given the prominence of this view (and its proponents), and perhaps its intuitive
appeal to an Anglo-American audience at least, it is worth noting that the preceding
chapters provide no support at all for the view that the ratio of a decision should be
more authoritative than obiter. The distinction may be a useful attempt to draw a
line somewhere; but judging from the contributions to the present book, this line is
not relevant for the purposes of legal development. In fact, it is revealing that, asked
to assess the Court’s influence on specific areas of international law, contributors
simply do not rely on the distinction in any systematic way. There are few
references to the distinction to begin with87 and no contributor suggests that a
judicial pronouncement should be more likely to be influential if it was a ratio
decidendi—or that being ‘merely’ an obiter dictum would weaken it. Quite to the
contrary, in many areas ‘mere obiter’ are considered to have been extremely influen-
tial. As such, the contributions provide support for the view of Boyle and Chinkin
that, ‘[t]here are numerous examples of influential dicta’.88 By way of illustration,
suffice it mention the impact of the erga omnes dictum (which in fact would have to
be qualified as ‘a very wide divaricating dictum’89) on human rights law in the
Barcelona Traction case,90 referred to by Bruno Simma91 or the fundamental PCIJ
ruling, in Chorzów Factory,92 asserting (with long-term effects referred to by James
Crawford) the primacy of restitution over compensation.93 As regards another
famous case, Lotus,94 and another famous obiter, it may be worth noting that
while the PCIJ’s specific holding on jurisdiction was reversed (even though it was
85 Cf Amerasinghe, State Responsibility for Injuries to Aliens (Oxford: Clarendon Press, 1967) 33.
86 See eg RY Jennings, ‘The Judiciary, National and International, and the Development of
International Law’ (1996) 45 ICLQ 1, 6 ff; M Shahabuddeen, Precedent in the World Court (Cam-
bridge: CUP, 1996) 152–64; see also L Condorelli, ‘L’autorité de la décision des juridictions inter-
nationales permanentes’ in Société française pour le droit international (ed), La juridiction
internationale permanente. Colloque de Lyon (Paris: Pédone, 1987) 277, 308.
87 In the preceding chapters, the term ‘obiter’ features only eight times.
88 A Boyle and C Chinkin, The Making of International Law (Oxford: OUP, 2007) 271.
89 Cf Sunbolf v Alford (1838) 3 M and W 218, 252 (per Lord Abinger).
[1970] ICJ Rep 3, 32–33 (paras 33–34).

91 Simma in this volume, 304.
92 Chorzów Factory (Merits) (n 3) 47.
93 Crawford in this volume, 72. In the circumstances of the case, Germany had only demanded
compensation; cf C Gray, Remedies in International Law (Oxford: OUP, 1987) 96.

94 The SS ‘Lotus’ (1927) PCIJ Ser A No 10.
key to the outcome), the famous Lotus presumption,95 one of the most prominent
judicial pronouncements of all times, for better or worse continues to haunt the
discipline—even though it was expressed in a ‘mere obiter’.96 All this suggests that,
at least from the perspective of legal development, Judge Anzilotti may have been
right to suggest that ‘the grounds of a judgment are simply logical arguments . . .
[a]nd for this purpose there is no need to distinguish between essential and non-
essential grounds’.97
3.1.2 The ‘fullness’ and ‘cogency’ of the Court’s reasoning

Other alleged ‘factors of success’ feature little better. The quality of the reasoning is
an equally popular indicator of ICJ’s impact. Assessing the probable impact of
judicial decisions, Georg Schwarzenberger emphasized that much depended on ‘the
fullness and cogency of the reasoning’—and continued that it ‘was not accidental
that the least convincing statements on international law made by the International
Court of Justice excel by a remarkable economy of argument’.98 According to
Terris, Romano, and Swigart, this in fact is the key determinant: ‘What ultimately
seems to matter is only that the reasoning . . . is legally sound and persuasive’.99
Statements like these seem intuitively correct. One would certainly hope that in
order to command authority, a decision would need to be well (or even cogently)
argued, which in turn may imply minimum standards of ‘fullness’ and ‘cogency’.
But can both factors be applied meaningfully? Again, it is indicative how little they
feature in the preceding contributions. Contributors of course express views on the
persuasiveness of ICJ pronouncements and refer to holdings that they consider to have
been poorly reasoned.100 However, there is little suggestion that badly reasoned
decisions should be devoid of impact, or that cogently reasoned statements should
exercise particular influence. And perhaps this is only wise. Cogency, much like beauty,
is in the eye of the beholder. Whose view should be relevant when assessing whether a
particular ICJ pronouncement was cogently argued? The view of an individual
95 The SS ‘Lotus’ (n 94) 18: ‘Restrictions upon the independence of states cannot . . . be presumed.’
For comment see notably O Spiermann, ‘Lotus and the Double Structure of International Legal
Argument’ in L Boisson de Chazournes and P Sands (eds), International Law, the International
Court of Justice and Nuclear Weapons (Cambridge: CUP, 1996) 131.
96 The actual decision in Lotus depended not on the (abstract and general) presumption, but on the
Court’s analysis of international practice in the field of jurisdiction; see Lotus (n 94) 22–31.
97 Dissenting Opinion of Judge Anzilotti Factory at Chorzów (Interpretation) (1927) PCIJ Ser
A No 13, 24.
98 G Schwarzenberger, International Law as Applied by International Courts and Tribunals, vol I
(London: Stevens and Sons, 3rd edn 1957) 32; and similarly O’Connell (n 1) 32.
99 Terris et al (n 29) 121. See also Boyle and Chinkin (n 88) 302; and A von Bogdandy and
M Jacob, ‘The Judge as Law-Maker: Thoughts on Bruno Simma’s Declaration in the Kosovo Opinion’
in U Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno
Simma (Oxford: OUP, 2011) 809, 822 (‘The law-making effect of a judicial decision, in particular its
general and abstract dimension, hence rests not only on its voluntas, but also on its ratio: legal scholars,
advisers, other courts, and certainly not least the deciding court itself at a later point in time must be
convinced of the soundness–broadly defined–of a prior decision.’)
100 See eg Zimmermann in this volume, 67–8; Parlett in this volume, 102–3; Shaw in this
volume, 173–4.
Synthesis 391
commentator is unlikely to matter much. Conversely, the international commu-

nity remains of course free to ignore a particular ICJ statement—and to make
that decision based on the quality of the Court’s reasoning. But is this likely—
and could it be verified? The limited studies that exist suggest a cautious
approach. Having studied the reasoning and influence of different decisions,
Niels Petersen concludes that ‘the concrete reasoning and soundness of the legal
argument are only of limited relevance in terms of impacting the legal dis-
course’.101 All things considered, and as much as one would hope for well-
reasoned decisions, fullness and cogency would seem to be too subjective to
determine the long-term impact of ICJ pronouncements.
3.1.3 Presumed influence

The foregoing comments suggest that some of the ‘factors of success’ relied on by
commentators are difficult to verify. This may be a negative way of looking at
matters, though. Perhaps more constructively, one could say that the fine distinc-
tions between ratio and obiter or between well-reasoned and cryptic pronounce-
ments, are overshadowed by the generally positive reception that ICJ decisions
receive. The ICJ’s institutional prestige and the general recognition of its jurispru-
dence as relevant102 have blurred differentiations between different categories of
ICJ pronouncements. The international community’s response has been of consid-
erable equalizing force and has levelled the playing field: unless ICJ pronounce-
ments are ignored (which can of course happen, but is rare and requires broad
support), they will stand, and they will exercise an influence. The quality of the
reasoning may be a factor in determining responses to decisions, but not more. All
things considered, the preceding contributions suggest that ICJ pronouncements,
as a general matter, are presumed to be influential.
3.2 External factors determining the Court’s impact

on legal development
Beyond individual ICJ pronouncements, the preceding chapters also help identify
factors that can explain the Court’s impact on the development of international
law. As noted above, this impact varies considerably; it is sector-specific.103 Focused
on their respective chapters, commentators generally do not discuss what factors
affect the level of impact in any detail. However, read together, the preceding
101 Petersen (n 84) 1316.

102 In his commentary to Article 38 of the ICJ Statute, Pellet spells out the main reasons for the
ICJ’s special status: ‘the Court remains the most prestigious of all [international courts] and the only
one having a general competence for all legal disputes (subject to the consent of the parties); its status as
the principal judicial organ of the United Nations enhances its authority as does its composition, both
wide (15 judges, usually sitting together in the full Court) and diversified . . . ; its organic permanence
and precedence in time has enabled the Court to elaborate an impressive case law without equal in
general international law’ (Pellet in Zimmermann et al (n 75) 858, para 315; footnotes omitted).
103 See 2.3.
chapters suggest that the Court’s influence depends on a number of—rather
straightforward—external factors. Three of them would seem to stand out.
3.2.1 Opportunity
The first point is the most obvious, and yet one that surprisingly often is not made.
The previous analysis suggests that the Court’s relevance as a law-formative agency
crucially depends on opportunities provided by its ‘clients’, ie states and/or UN
agencies. Lacking the power to initiate proceedings and restrained by the ne ultra
petita doctrine, the Court depends on applications, requests, and arguments made
by others. It has no influence on whether proceedings are brought and limited
freedom in shaping the subject matter of a dispute brought before it.104
None of this seems particularly controversial, and yet it is rare to find the
implications on the relevance of courts as law-formative agencies spelled out clearly.
Boyle and Chinkin formulate the basic point with refreshing clarity when noting
that ‘[t]he impact of international courts and tribunals on the evolution of inter-
national law largely depends upon how many cases are brought before them’.105
The preceding analysis suggests that this indeed is a key factor in explaining, not
only the general relevance of the Court (a matter to be taken up in the concluding
section), but also its differentiated impact on different fields of international law.
For it is readily apparent that the Court’s significant contributions typically concern
areas on which it has had opportunity to pronounce regularly, or repeatedly. The
importance of PCIJ and ICJ decisions on the development of treaty law and the law
of responsibility reflects the fact that because the topics cross-cut a wide range of
subjects they arise in a large portion of the cases.106 By the same token, given the
large number of territorial and boundary disputes addressed by it, the Court could
perhaps be expected to become an ‘authoritative guide’107 in this field—just as it
has had opportunity to address and revisit relevant aspects of the jus ad bellum and
the legal regime governing diplomatic protection. By contrast, it is very difficult to
see how the Court could have shaped areas of law that it has had occasion to address
in only a handful of cases—as is the case with international humanitarian law,
immunities, or (at least until recently) human rights or international environmental
law. Finally, the virtual disappearance of the ICJ from debates about minority
104 While on occasion, benches of the Court have been said to go out of their way to make or raise
particular points of law, the typical pattern sees the ICJ addressing arguments of the parties.
105 Boyle and Chinkin (n 88) 269. Lissitzyn made the same point in 1951: ‘The performance of
the Court’s law-developing function . . . depends on the member and organs of the international
community which the Court serves. They must . . . give the Court the opportunity to function by
submitting disputes or requests for opinion to it’ (O Lissitzyn, The International Court of Justice: Its Role
in the Maintenance of International Peace and Security (New York: Carnegie Endowment, 1951) 29).
106 According to Crawford’s estimate, ‘[a]pproximately one-third of the Court’s cases involve
responsibility’: Crawford in this volume, 85.

107 Shaw in this volume, 176. See also Shaw 152: ‘Title to territory, as well as consequences of title,
have long formed an important part of the work of international courts and tribunals generally, and of
the ICJ in particular. That the Court should have played an important role in clarifying the
international law of territory therefore comes as no surprise.’
Synthesis 393
protection (an area shaped in important ways by its predecessor) can be taken to
reflect the shift from a heavily judicialized system, involving the regular involve-
ment by the PCIJ in contentious or advisory proceedings, to a minority protection
regime that is partly integrated into human rights protection (as per Article 27 of
the International Covenant on Civil and Political Rights) and that partly avoids
recourse to binding dispute settlement.
Further examples could be given; however the basic point will have become clear:
the analysis confirms the rather straightforward point that the Court’s sector-
specific influence reflects the opportunities presented to it. This simple criterion
cannot explain everything, but it is a crucial factor explaining the Court’s sector-
specific impact on legal development. It suggests that the Court’s role as a law-
formative agency depends on jurisdictional arrangements and the willingness of
states and UN agencies to translate jurisdictional titles into actual cases. This would
seem to be the first external factor influencing the Court’s role.
3.2.2 Receptiveness
While opportunity is essential, in and of itself, it does not conclusively determine
the Court’s influence on the development of international law. For pronounce-
ments to have an impact they need to fall on fertile grounds; for an area of law to be
shaped in relevant measure by the ICJ, it needs to be receptive to judicial develop-
ment. Like ‘opportunity’, ‘receptiveness’—as the second external factor emerging
from the preceding analysis—seems a fairly straightforward criterion; but it deserves
to be spelled out and concretized.108
The preceding chapters offer a number of basic insights that can help identify
which areas of international law are more or less ‘receptive’ to judicial development.
Notably, it suggests that breadth and specificity matter. Areas of law made up of only
a few principles and norms are more likely to be influenced by the Court than broad
areas characterized by highly specific provisions. The jus ad bellum and the regime of
diplomatic protection would seem to belong to the former category: both are
important, but discrete, legal topics the development of which the Court, through
a rather small number of decisions, has been able to influence in a significant manner.
By contrast, in relation to broad fields comprising a vast number of specific provisions
(such as the law of the sea, international humanitarian, or international environmental
law), the Court’s contribution has typically been much more targeted. Behind this are
two simple truths that restrain the developmental impact of judicial decisions gener-
ally. Firstly, where the law spells out virtually every detail, courts called upon to apply
it can do no more than fine-tune.109 Secondly, where the law is highly diversified,
courts with few cases are hardly ever able to exercise significant influence.110
108 Boyle and Chinkin (n 88) hint at one particularly relevant aspect when suggesting that, in
addition to mere numbers, the impact of a court depends on whether cases brought before it ‘rais[e]
new and contested legal issues’ (269).
109 The point is made by Lowe and Tzanakopoulos in this volume, 179, 193.
110 See further Berman in this volume, 21–2.
The ‘make-up’ of a specific field of law however is just one factor. There is also a
temporal dimension: the ‘receptiveness’ of an area may change over time. The
codification movement is an important factor in this respect. The preceding
chapters suggest that the PCIJ and ICJ have often been influential when pronoun-
cing on the law during long-term and on-going codification attempts. State
responsibility may be the most obvious example in point, as witnessed by the
highly successful law-development partnership between ICJ and ILC since the
1970s.111 By contrast, where the ICJ faces completed and comprehensive codifica-
tion attempts, its role is likely to be more limited: hence its rather marginal role in
relation to international humanitarian law (which by the time of Nicaragua112 had
seen a century of permanent codification attempts) and the law of the sea (equally
shaped by successive waves of deliberate multilateral treaty-making).
3.2.3 In particular: competing agencies of legal development

A third, related factor is perhaps best viewed as variation on the second. The
receptiveness of a given area of law may depend on whether it possesses its own,
specialized, processes of legal development. Where these are in place, and where
they operate in a regular and effective way, the preceding analysis points to a more
restricted ICJ impact. There is nothing natural or logical about this division of
roles. However, as the Court is presented with so few developmental opportunities,
specialized mechanisms are likely to engage in legal development with much greater
frequency, perhaps even on an everyday basis. The preceding chapters suggest that
this factor indeed affects the role of the Court: its impact is greater where no other
agencies of legal development exist, and smaller where it faces strong competition in
legal development.
The latter trend may be illustrated by reference to the development of inter-
national human rights law. Human rights law is not only ‘treatified’, but also
heavily institutionalized, with courts, commissions, committees, expert bodies, and
special rapporteurs all playing important roles.113 All these institutions engage in
manifold processes of norm interpretation, norm application, and potentially legal
development, through instruments as diverse as judgments, reports, general com-
ments, observations, etc. With respect to particular treaties, some treaty bodies may
come to be accepted as authoritative interpreters of the law and develop a sense of
‘ownership’ of the treaty they supervise, to the point where some regional human
rights treaties effectively ‘are what their courts say they are’.114 That the ICJ’s
impact has been relatively limited in the legal development of international human
rights law and that its contributions concern the margins of the discipline,
111 See Crawford in this volume, 79–85; and further in 2.4.2. 112 Nicaragua (n 15).
113 A useful survey is provided by E Riedel and JM Arend, ‘Article 55(c)’ in B Simma, DE Khan,
G Nolte and A Paulus (eds), The Charter of the United Nations—A Commentary (Oxford: OUP, 3rd
edn 2012) 1565.
114 Cf CE Hughes, ‘Speech to Chamber of Commerce’ in Addresses and Papers of Charles Evans
Hughes, Governor of New York, 1906–1908 (New York and London: Putnam and Sons, 1908) 139
(‘We are under a Constitution, but the Constitution is what the judges say it is’).
Synthesis 395
or linkages, may not be unrelated to the existence of the numerous alternative

developers.
The law of territory, and even more so diplomatic protection, in many ways
present counter-examples. Both fields of law lack specialized and organized pro-
cesses of norm application and interpretation that could contribute to the develop-
ment of the law. No specialized monitoring bodies exist; international practice
dominates the field. In these areas, there simply are no competing agencies of legal
development: in a sectoral regime lacking specialized institutions, it is the ICJ that
the international community looks to for guidance on the law.
The examples mentioned—human rights law on the one hand and territory and
diplomatic protection on the other—are situated at opposite ends of a spectrum.
Other areas addressed in the preceding contributions would be found somewhere
between them—international environmental law, international humanitarian law,
and the law of the sea (all of them institutionalized115) presumably closer to human
rights law; immunities and state succession (lacking organized processes of legal
development) closer to diplomatic protection. The foregoing considerations suggest
that the position on the spectrum has an influence on the ICJ’s role. The absence of
competing agents of legal development strengthens its role. In a field crowded by
developers of the law, the ICJ may be a particularly prominent voice, but is one
among many.
4. The Court’s contribution in perspective
None of the factors discussed in the foregoing section can conclusively explain why,
or when, ICJ pronouncements contribute to the development of international law.
However, it is submitted that they go at least some way towards explaining the
variable nature of the Court’s impact on the development of particular areas of
international law—and their explanatory value exceeds that of the still-popular
explanations based on distinctions between ratio and obiter, or on the perceived
cogency of the reasoning.
The broader argument emerging from the discussion is that the Court’s role as a
law-formative agency depends less on factors internal to its jurisprudence than on
external variables: whether or not it wants to (and whether or not its holdings have
been essential, or well-reasoned or not), the Court is influential where it is being
provided with an opportunity regularly to pronounce on a particular area of law,
where its pronouncements concern areas of law open to judicial development, and
where it faces little or no competition by other agencies of legal development.
Determined by these external variables, the Court’s role is ‘context specific’: a
powerful factor in some areas, ICJ case law is of negligible influence in others.
115 As is noted in the respective chapters, meetings and conferences of parties adapt multilateral
environmental agreements (Fitzmaurice in this volume, 374); the ICRC oversees the development of
the ‘Geneva law’ (Kreß in this volume, 296); UNCLOS treaty bodies and specialized maritime
organizations apply and adjust the law of the sea (Lowe and Tzanakopoulos in this volume, 179–85).
Robust statements such as ‘[i]nternational courts—in particular the ICJ—do play a
major law-making role’116 are refreshing, but simply too general—just like the
preceding contributions do not bear out overly negative assessments lamenting the
Court’s disappointing record as a lawmaker.117 Fundamentally, the Court’s role
reflects the particular legal processes at play in a given area of international law: it
operates within its unique parameters, by which it is partly empowered and partly
constrained.
116 Boyle and Chinkin (n 88) 268. See also RY Jennings and AD Watts (eds), Oppenheim’s
International Law (Oxford: OUP, 9th edn 1992) 41 (‘a most important factor in the development
of international law’); and Ginsburg (n 49) 639 (‘It would be difficult to assess the total proportion of
international lawmaking that is carried out by judicial actors, but it is sure to be high.’)
117 W Friedmann, ‘The International Court of Justice and the Evolution of International Law’
(1969–1970) 14 Archiv des Völkerrechts 305.

Index
The index lists points of law on which the ICJ and its predecessor have pronounced. As the whole book
is about the ICJ, that term has not been referenced. The same holds true for ‘PCIJ’ and ‘World Court’,
and for names of cases.
Anticipatory self-defence 257–258 investment protection 99–103, 104–105
Armed attack 246, 251–254, 257–260 (see also Investment protection)
against non-State actors 258–260 nationality of claims 90–103
collective-self-defence 256 genuine link 96–99
necessity and proportionality 254–255 continuous 90–91
Armed conflicts (law of) of corporations 75, 77, 99–103
aut dedere aut judicare 290 shareholder protection 75, 77, 99–103
belligerent occupation 267, 271–273, 287 special regimes 104–105
belligerent reprisals 276, 289 State right, as a 87–93
chemical weapons 273
criminal responsibility 278, 287 Environmental impact assessment (EIA) 362,
elementary considerations of 370–372
humanity 265–266, 268, 295 Environmental protection
enforcement 275–278, 292 atmospheric (nuclear) testing 359–360
Geneva law 265, 270–273 ecological necessity 76, 80–81, 367–368
Hague law 265, 273–274 environmental impact assessment (EIA) 362,
human rights law, relationship with 268–270, 370–372
319–320, 325 equitable and reasonable use of
individual criminal responsibility 278, 287 resources 368–369
jus cogens status 266–267, 280–282, 285, 296 erga omnes status 357–358
Martens clause 268, 285 mainstreaming of 363–370, 373–374
military necessity 276, 289, 291–292 necessity 76, 80–81, 367–368
neutrality 279, 283 nuclear tests 358–360, 363–364
nuclear weapons 273–274, 292–295 nuclear weapons 273–274, 292–295,
occupation 267, 271–273, 287 364–366
protection of the environment 282, 364–366 precautionary principle 42, 362, 363,
State responsibility for breaches 275–278, 366, 371
292, 319–320 Rio Declaration 356, 360, 363, 365
individual criminal responsibility 278 sic utere tuo ut alineum non laedas 239,
belligerent reprisals 276, 289 335–356, 359–360, 370
military necessity 276, 289, 291–292 state responsibility 367–370
reparation 276 Stockholm Declaration 356, 365–366
unlawful combatants 289 sustainable development 369
aut dedere aut judicare 123, 290, 313 water law 368–369, 371–372
Erga omnes obligations 5, 44, 77–79, 162,
Belligerent occupation 267, 271–273, 287 166–167, 277, 280–282, 296, 304, 306,
309, 313–314, 321, 325, 341–344, 350,
Community obligations see Erga omnes 357–358, 384, 389
obligations
Frontiers, stability of 156, 165–167
Delimitation of maritime areas 188–190
equidistance 19, 189 Genocide, prohibition against 310, 318,
equitable principles 19, 188 334–338
Diplomatic protection
best practices 94–95 Head of State immunity see Personal immunities
continuous nationality 90–91 Human rights law
discretionary character 94–95 aut dedere aut judicare 123, 290, 313
genuine link 96–99 consular notification 306–308
398 Index
Human rights law (cont.) United Nations Convention 113, 134–136,
erga omnes obligations 304, 313–314, 138–139, 142–143, 145, 386–387
320–321 Jus cogens 27, 34, 43–44, 46, 77–79, 82–83,
expropriation 310–312 108, 129–131, 137–138, 140, 142–146,
genocide, prohibition against 310, 318, 224–225, 247, 261, 266–267, 280–282,
334–338 285, 296, 309, 314, 316, 317, 325,
immunity, and 314–317 343–344, 348, 351
incidental relevance to ICJ cases 303–306 Jus ad bellum see Use of force (law on)
mainstreaming of, 320–325 Jus in bello see Armed conflicts (law of)
racial discrimination, prohibition
against 312, 338–339 Law of the Sea
restraint by the Court 303–308 baselines 18–19, 190
delimitation of maritime areas 188–190
Immunities see Jurisdictional immunities equidistance 19, 189
International environmental law see equitable principles 19, 188
Environmental protection entry to ports 184
International human rights (law) see Human equidistance 19, 189
rights law equitable principles 19, 188
International humanitarian law see Armed exclusive economic zone (EEZ) 191, 380
conflicts (law of) fisheries 190–191
International Law Commission (ILC) 5 fisheries zone 190–191, 380
diplomatic protection 94–100, 102–106 innocent passage 191–192
fragmentation study 46 International Maritime Organization
jurisdictional immunities 111, 113, (IMO) 183–184, 189
118–120, 123–124, 126, 129, 131, 135, International Tribunal for the Law of the Sea
138, 147 (ITLOS) 180, 186
law of the sea 182 Law of the Sea Convention
reservations to treaties 18 (LOSC) 179–180, 182–184, 186,
state responsibility 72–79, 81–85 189–190, 192
International responsibility see State right of passage 191–192
responsibility straight baselines 18–19, 190
Intertemporal law 14, 37, 157, 159 territorial sea 19, 181–182, 189, 190–192
Investment protection 32, 87, 96, 100, transit passage 192
102–106, 186 UN Conferences on the Law of the Sea
Ius ad bellum see Use of force (law on) (UNCLOS) 182, 186, 190–192
Ius in bello see Armed conflicts (law of) Law of the Sea Convention (LOSC) 179–180,
182–184, 186, 189–190, 192
Judicial review 224–232, 242–243 Law of treaties see Treaties (law of)
Jurisdictional immunities
acta jure gestionis 127, 129–130, Maritime delimitation 188–190
132–136 Martens clause 268, 285
as a legal rule 111–112 Military necessity 276, 289, 291–292
as a preliminary issue 110–111 Minorities, rights of see Minority rights
enforcement measures 113–115 Minority rights
exceptions 120–123, 133–136, 137–146, cultural rights 334–335
314–317 definition of ‘minority’ 329–330
execution, immunity from 113–115 equal treatment 332–34
exequatur proceedings 112–113 language rights 334–335
immunity exceptions see Jurisdictional League of Nations system 328–332
immunities, exceptions minority treaties 328–332
jus cogens, and 129–130, 137–140, 142–146, non-discrimination 332–334
314–317 (see also Jus cogens) preservation of identity 334–336
measures of constraint 113–115
personal immunities see Personal immunities Nationality 87–89
private acts 127, 129–130, continuous 90–91
132–136 of claims 87–89
procedural nature 109, 127–128 of corporations 75, 77, 99–103
recognition of judgments 112–113 of natural persons 96–99
territorial tort 132–136 Necessity 76, 80–81, 367–368
Index 399
Non-use of force principle see Use of force necessity 76, 80–81, 367–368 (see also
(law on) Military necessity)
public interest 76–78 (see also State
Obligations erga omnes see Erga omnes responsibility, multilateral rules;
obligations Community obligations)
Occupation see Belligerent occupation reparation 72, 74
reprisals 81 (see also Armed conflicts (law of ),
Peoples’ rights belligerent reprisals)
prohibition against genocide 334–338 secondary rules 76
prohibition against racial shareholder protection 75, 77 (see also
discrimination 338–339 Diplomatic protection, shareholder
self-determination of peoples 156, 160–162, protection)
172–174, 339–342 State crimes 78, 83
erga omnes status 342–343 violation of human rights, for 319–321
jus cogens status 342–343 violation of immunities, for 110
decolonization 340 State succession
sovereignty over natural resources 342–343 State continuity, and, distinguished 54–57
Personal immunities 115–126 treaties, to see Succession to treaties
beneficiaries 115–120 United Nations practice 55–57
exceptions 120–123, 314–315 Succession to treaties (see also State succession)
foreign ministers 115–120 automatic succession
inviolability 123–126 general principle, as a 59–61
Precautionary principle 42, 362, 363, 366, 371 human rights treaties, to 44–45,
Protection of the environment see Environmental 61–63
protection localized treaties, to 64–65
depositary practice 64–66
Reservations to treaties 5, 18, 31, 36, 39, 62, devolution agreements 67–68
220, 378, 381–382 form (of notification) 66–68
collective interest treaties, and 43–44 human rights treaties 44–45, 61–63
human rights, and 305, 309, 324, localized treaties 64–65
344–345, 384 notification of 64–68
Responsibility see State responsibility temporal effects 65–66
Responsibility of States see State responsibility universal succession 59–61
Rights of peoples see Peoples’ rights
Territorial sovereignty see Territory (law of)
Sea, law of see Law of the Sea Territory (law of )
Self-defence 251–260 boundary treaties 156, 165–167
Self-determination of peoples 156, 160–162, colonial title 156–160 (see also Territory (law
172–174, 339–342 of ), self-determination; Territory (law
sic utere tuo ut alineum non laedas 239, 335–356, of ), uti possidetis
359–360, 370 effectivités 155, 168–171
State immunity see Jurisdictional immunities frontiers 156, 165–167
State responsibility human rights, and 174–176, 339–342
attribution of conduct 72, 85 intertemporal rules 156–159 (see also
complicity 84 Intertemporal law)
countermeasures 81 precolonial title 155–156
damages 71–72, 82 secession 172–174
guarantees and assurances of non- self–determination 156, 160–162, 172–174,
repetition 81–82 339–342
imputability 72 (see also State responsibility, sovereignty 151–153
attribution of conduct) terra nullius 155
injury to aliens 75, 77 (see also Diplomatic uti possidetis 156, 162–166
protection) Threat of force 250
international humanitarian law 275–278 Title to territory see Territory (law of)
law of treaties, and 49–51 Treaties (law of )
legal personality 73–74, 202–206 capacity 31, 33
multilateral rules (see also State responsibility, collective interests treaties 34–45
public interest; Community obligations) interpretation of 36–43 (see also Treaty
73–74, 76–77, 82–84 interpretation)
400 Index
Treaties (law of ) (cont.) Admission of members 208–210
succession to 44–45, 61–63 (see also Advisory opinions 13–16, 218–223
Succession to treaties) Capacity 202–206
reservations to 43–44 (see also Reservations Charter, dynamic character 200–201
to treaties) Charter interpretation 200–202
concession agreements 32 General Assembly competences 198–199,
conclusion of treaties 29 208–210, 211–212, 213–216
form of treaties 29 Implied powers 199, 202–205, 207, 211
formation of treaties 29 Judicial review 224–232, 242–243
hierarchy between treaties 45–46 Legal personality 31, 73–74, 202–206
informal agreements as treaties 29 Security Council competences 198–199,
interpretation see Treaty interpretation 208–210, 211–212, 213–216, 217–218
non-State actors as parties to treaties 30–33 Security Council resolutions,
parties 30–33 interpretation 217–218
State responsibility, and 49–51 Sixth Committee 198
sub-State entities as parties to treaties 30–31 Use of force (law on)
succession see Succession to treaties aggression 241
treaty-making capacity 31–33 anticipatory self-defence 257–258
Treaty interpretation armed attack 246, 251–254, 257–260
and interpretation of Security Council changes in the law 243–245, 258–260
resolutions compared 41–42 collective self-defence 256
Charter interpretation 200–202 customary regime 243–245, 247
dynamic approach 37–41, 200–202, 368, international practice 244–245
371 justiciability of disputes 241–242
intention of parties 37, 41 non-intervention, and 248–250
of environmental treaties 368, 371 policy of force 239
subsequent practice 41–42 relevance of UN Charter 240–241, 243–244
Treaty law see Treaties (law of ) self-defence 251–260
Treaty succession see Succession to treaties against non-State actors 258–260
anticipatory self-defence 257–258
UN Conferences on the Law of the Sea armed attack 246, 251–254, 257–260
(UNCLOS) 182, 186, 190–192 collective-self-defence 256
UN law see United Nations (law of the) necessity and proportionality 254–255
United Nations (law of the) threat of force 250

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THE DEVELOPMENT OF INTERNATIONAL LAW BY

THE INTERNATIONAL COURT OF JUSTICE

List of Abbreviations xiii

III. THE LAW O F CLAIMS

IV. SPATIAL REGIMES

7. Title and boundary treaties 166

V. THE UNITED NATIONS

VI. ARMED CONFLICT

VII. COMMUNITY CONCERNS

Accordance with International Law of the Unilateral Declaration of Independence in Respect

A v Ministère public de la Confédération, B and C, dossier no. BB.2011.140, decision of

In his revised edition of The Development of International Law by the International

& Sons, 1958) 4 and 5.

Justice (London/New York/Toronto: Longmans Green and Co., 1934).

Princeton: PUP, 1968) 390.

makers’ (2011) 12 German LJ 979, 981.

[2012] 3 JIDS 247; Terris et al (n 12) 121 et seq.

Legitimation of International Judicial Lawmaking’ (2011) 12 German LJ 1341; as well as the

(Advisory Opinion) [1951] ICJ Rep 15, 22–4.

[1970] ICJ Rep 3, 32–3, paras 33–4.

It is a privilege to have been asked to start off this thoroughly commendable

ICJ Rep 392.

institution of advisory opinions alongside contentious state-to-state proceedings.

3. The World Court’s approach

13 Art 92 of the Charter.

and 175, 192.

3.1 Separate and dissenting opinions

3.2 Advisory opinions

PCIJ Ser B No 5, 28.

Opinion) [1962] ICJ Rep 151.

Opinion) [2004] ICJ Rep 136.

4. The effect of the Court’s judicial activity

41 Fitzmaurice (n 2). 42 Thirlway (n 2).

anniversary of the Court.

(Advisory Opinion) [1951] ICJ Rep 15.

50 Reservations to Genocide Convention (n 46) 23.

International Criminal Court.

58 H Lauterpacht, The Development of International Law by the International Court (London:

Stevens & Sons, 1958) 5.

Tilburg Law Lectures) (Berlin: Springer, 1983) 1.

(London: Stevens & Sons, 1958) 75.

55 AJIL 825, 835, 854–5.

Serbia) (Preliminary Objections) [2008] ICJ Rep 412, para 53.

the requirements of the international system, and in the Maritime Delimitation in

ICJ Rep 38, Separate Opinion of Judge Weeramantry, para 239.

International Court of Justice, 1961–1973 (The Hague: Kluwer, 1998) 70–4.

United Nations (Dordrecht: Martinus Nijhoff, 3rd edn 1997) 6.

Judicial Policy’ (2007) 56 ICLQ 741, 742.

2012 (<www.icj-cij.org/docket/ﬁles/143/16883.pdf> (accessed on 17 May 2013)).

Opinion) [2004] ICJ Rep 136.

2. The Court and the diversity of forms and

(Jurisdiction and Admissibility) [1994] ICJ Rep 112, para 23.

32 Higgins (n 29) 557.

Rep 174, 178.

Opinion) [1980] ICJ Rep 73, para 37.

37 Serbian Loans (1929) PCIJ Ser A No 20, 41.

[1970] ICJ Rep 3.

45 Island of Palmas case (Netherlands v US ) (1928) 2 RIAA 829, 840.

3. The Court, the hierarchization of international law,

3.1 The concept of collective interest treaties

are subject to different treaty rules, in particular in the matters of interpretation,

3.2 The Court’s approach to collective interest treaties

3.3 Collective interests and treaty interpretation