Landmark Cases in Public International Law ( PDFDrive.com ).pdf

LANDMARK CASES IN PUBLIC INTERNATIONAL LAW The past two hundred years have seen the transformation of public international law from a rule-based extrusion of diplomacy into a fully-fledged legal system. L andmark Cases in Public International Law examines decisions that have contributed to the development of international law into an integrated whole, whilst also creating specialised sub-systems that stand alone as units of analysis. The significance of these decisions is not taken for granted, with contributors critically interrogating the cases to determine if their reputation as ‘landmarks’ is deserved. Emphasis is also placed on seeing each case as a diplomatic artefact, highlighting that international law, while unquestionably a legal system, remains reliant on the practice and consent of states as the prime movers of development. The cases selected cover a broad range of subject areas including state immunity, human rights, the environment, trade and investment, international organisations, international courts and tribunals, the laws of war, international crimes, and the interface between international and municipal legal systems. A wide array of international and domestic courts are also considered, from the International Court of Justice to the European Court of Human Rights, World Trade Organization Appellate Body, US Supreme Court and other adjudicative bodies. The result is a three-dimensional picture of international law: what it was, what it is, and what it might yet become.

Landmark Cases in Public International Law

Edited by

Eirik Bjorge and Cameron Miles

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © The editors and contributors severally 2017 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-84946-788-9 ePDF: 978-1-50991-878-2 ePub: 978-1-50991-879-9 Library of Congress Cataloging-in-Publication Data A catalogue record for this book is available from the Library of Congress. Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Foreword BY SIR FRANK BERMAN KCMG QC

There is a particular pleasure in sitting down to write a Foreword to this imaginative collection of essays, which one hopes will have a much wider appeal than just to current scholars and practitioners of the legal discipline of international law itself. The task allows one—indeed I ought to say compels one—to do more than simply re-visit landmarks in one’s own personal legal formation. It forces one irresistibly to think about the way in which international law has developed, has broadened and thickened, and about the very sizeable changes that have taken place in the functions international law is expected to perform, and in the way it performs them. It does so, too, in a manner that is particularly congenial to those from a common law background, from Pitt Cobbett in 1885 until today, by looking at how things have worked out in practice: how the key issues presented themselves in real terms, how they were dealt with, in sets of concrete circumstances, and how all that was then responded to, by acceptance, or by rejection, but most of all by further elaboration or development. Moreover, the Landmark Cases collected in this book serve at least two other useful purposes. They remind one in the first place that no dispute going to judicial settlement ever consists of one single isolated legal issue. Indeed, one of the most striking indicators of international law as a legal system lies in the way in which international disputes, most especially when they are subjected to the fierce analytical discipline of forensic argument, show themselves as entailing the simultaneous application and the interplay of different legal concepts each with its relevance to particular aspects of the matter under dispute. The second important reminder is that disputed legal issues arise out of facts on the ground. By this, I don’t wish merely to restate the platitude that an important part of any tribunal’s task lies in finding and stating the facts. I mean rather that each of the Landmark Cases collected in this book consists, and necessarily so, of the application of law, as found by the tribunal, to a set of facts. So that it is at one’s peril that one gets into the way of thinking of any given landmark decision as having established ‘a principle,’ without paying the right sort of regard to how the enunciation of the principle emerged and within what context. The particular charm of a good many of the chapters in the book is to bring us back (or at least here I speak only for myself) from the skeletal memory of a doctrine or principle to a clear understanding of just how complex and intricate a situation it had been that led to the statement of the doctrine or principle in judicial decisions that often approached the complexity of the situation that had brought them about; and then to show us which aspects of these complex decisions stood the test of international opinion, which parts of them were quietly ignored or set aside, and how that organic process led the law to what we think it may be today.

vi Foreword The editors, Eirik Bjorge and Cameron Miles, have had the eminently good sense not to impose any sort of rigid template on their contributors—other, that is, than the request to explore actively, and if need be sceptically, whether their Landmark deserved and still deserves what the editors delicately refer to as its ‘reputation’ as such. This welcome freedom has allowed the impressive range of contributors to develop, often working fruitfully in pairs, their own approaches to the task, ranging from sober appreciation to the re-fighting of old battles, but always in a way that captures the attention and seeks to hold it. It goes without saying that it would be invidious to single any of them out, though it is hard not to express admiration for Douglas Guilfoyle’s elegant achievement of encapsulating, in the space of a mere 20 pages, not merely the details and consequences (deftly reassessed) of the Lotus case, but also the political and diplomatic history of the region and even the personalities, style and background of the two principal advocates. But this Foreword would under any circumstances be incomplete without a special mention of the chapter on the Tyrer case in the European Commission and Court of Human Rights by Sir Nigel Rodley, which displays all of the qualities of thoughtful care and fairmindedness which will make his sudden and premature death so great a loss to the world of international law. Sir Frank Berman KCMG QC London 14 August 2017

Contents Foreword by Sir Frank Berman KCMG QC�� v Notes on Contributors�� ix 1. Introduction�� 1 Eirik Bjorge and Cameron Miles 2. The Charming Betsy and The Paquete Habana (1804 and 1900)�� 11 William S Dodge 3. Mavrommatis Palestine Concessions (Greece v Great Britain) (1924–27)�� 33 Michael Waibel 4. Factory at Chorzów (Germany v Poland) (1927–28)�� 61 Chester Brown 5. SS Lotus (France v Turkey) (1927)�� 89 Douglas Guilfoyle 6. Island of Palmas (Netherlands v United States of America) (1928)�� 111 Eirik Bjorge 7. Legal Status of Eastern Greenland (Denmark v Norway) (1933)�� 133 Rolf Einar Fife 8. Trail Smelter (United States of America/Canada) (1938 and 1941)�� 159 Duncan French 9. Trial Before the International Military Tribunal at Nuremberg (1945–46)�� 189 Katherine O’Byrne and Philippe Sands 10. The Early United Nations Advisory Opinions (1948–62)�� 221 Thomas D Grant and Rowan Nicholson 11. The South West Africa Cases (1949 to 1971)�� 263 James Crawford and Paul Mertenskötter 12. North Sea Continental Shelf (Federal Republic of Germany v Netherlands; Federal Republic of Germany v Denmark) (1969)�� 283 Nikiforos Panagis and Antonios Tzanakopoulos 13. Barcelona Traction, Light and Power Company (Belgium v Spain) (1970)�� 307 Giorgio Gaja

viii Contents 14. Tyrer v United Kingdom (1978)�� 325 Nigel Rodley 15. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (1984 to 1986)�� 349 Robert Kolb 16. Tadić v Prosecutor (1995)�� 377 Sarah MH Nouwen and Michael A Becker 17. The Nuclear Weapons Advisory Opinions (1996)�� 409 Surabhi Ranganathan 18. Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (1997)�� 435 Laurence Boisson de Chazournes and Makane Moïse Mbengue 19. Vivendi v Argentina (1997–2010)�� 455 Sam Luttrell 20. US—Import Prohibition of Certain Shrimp and Shrimp Products (1998)�� 489 Callum Musto and Catherine Redgwell 21. LaGrand (Germany v United States of America) (2001)�� 509 Cameron Miles 22. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004)�� 539 John Dugard 23. Jurisdictional Immunities of the State (Germany v Italy; Greece intervening) (2012)�� 563 Omri Sender and Michael Wood Index�� 585

Notes on Contributors Michael A Becker is a PhD candidate in international law at the University of Cambridge, where he is a WM Tapp Scholar at Gonville and Caius College. His doctoral research examines the contemporary role of commissions of inquiry in the international legal system. A graduate of Yale Law School, he served as an Associate Legal Officer at the International Court of Justice from 2010 to 2014. He has experience as a commercial litigator and as a federal law clerk in the United States. He is admitted to the Bar of the State of New York. Sir Frank Berman KCMG QC joined HM Diplomatic Service in 1965 and was the Legal Adviser to the Foreign and Commonwealth Office from 1991 to 1999. Since then, he has been in practice in Essex Court Chambers in London specialising in international arbitration and advisory work in international law. He is Visiting Professor of International Law at Oxford and the University of Cape Town. He has served as a Judge ad hoc of the International Court of Justice and is a member of the Permanent Court of Arbitration. He has been appointed to the list of arbitrators maintained by the International Centre for Settlement of Investment Disputes. Eirik Bjorge is Senior Lecturer in Public International Law at the University of Bristol. He has authored The Evolutionary Interpretation of Treaties (OUP, 2014) and Domestic Application of the ECHR: Courts as Faithful Trustees (OUP, 2015), and edited, and translated from the French, Bernard Stirn’s Towards a European Public Law (OUP, 2017). With Sir Frank Berman KCMG QC, he is responsible for the law of treaties section in Oppenheim’s International Law (10th edn, OUP, 2018), and in 2015, he was awarded the King of Norway’s Gold Medal in Law. Laurence Boisson de Chazournes has been Professor in International Law and International Organisation at the Faculty of Law of the University of Geneva since 1999. She is an Associate Member of the Institute of International Law and an adviser to various international organisations (UN, ILO and WHO), governments and law firms. In the area of dispute settlement, she advises and litigates on a wide range of international law issues. She has served as chairperson of WTO arbitration panels, has pleaded before the International Court of Justice and has been an arbitrator in investment arbitration (ICSID, ICC and PCA). She is a member of the PCA and of the Court of Arbitration for Sport in which she has also been appointed arbitrator. Chester Brown is Professor of International Law and International Arbitration at the University of Sydney Law School, and the Co-Director of the Sydney Centre for International Law. He is also a Barrister at 7 Wentworth Selborne Chambers (Sydney) and an Overseas Associate of Essex Court Chambers (London) and Maxwell Chambers (Singapore). He teaches and researches in the fields of public and private international law, and international dispute settlement. He has been counsel in proceedings before the International Court of Justice; the Iran–US

x Notes on Contributors Claims Tribunal; inter-state, investor-state and international commercial arbitral tribunals; as well as in inter-state conciliation proceedings. He is the author of A Common Law of International Adjudication (OUP, 2007), for which he received the ASIL C ertificate of Merit, 2010. He co-authored of The International Arbitration Act 1974: A Commentary (2nd edn, LexisNexis, 2015), edited Commentaries on Selected Model Investment Treaties (OUP, 2013), and co-edited of Evolution in Investment Treaty Law and Arbitration (CUP, 2011). He was educated at the Universities of Melbourne, Oxford, and Cambridge. Judge James Crawford AC is a Judge of the International Court of Justice. Previously, he was Whewell Professor of International Law at the University of Cambridge (1992–2015), and he has also held chairs in Australia and China. As a member of the International Law Commission he was responsible for the Draft Statute for an International Criminal Court (1994) and the Articles on the Responsibility of States for Internationally Wrongful Acts (2001). In addition to scholarly work on statehood, state responsibility and investment protection, he has been involved as counsel, expert or arbitrator in many international cases. In 2012, he was awarded the Hudson Medal by the American Society of International Law. In 2013, was appointed Companion of the Order of Australia. William S Dodge is Martin Luther King, Jr Professor of Law at the University of California, Davis, School of Law. He is a co-reporter for the American Law Institute’s Restatement Fourth, the Foreign Relations Law of the United States and a member of the US State Department’s Advisory Committee on International Law. From 2011 to 2012, he served as Counselor on International Law to the Legal Adviser at the State Department. Among other publications, he is the co-author of Transnational Business Problems (5th edn, Foundation Press, 2014) and the co-editor of International Law in the US Supreme Court: Continuity and Change (CUP, 2011), which won the American Society of International Law’s Certificate of Merit in 2012. He served as a law clerk for Justice Harry A Blackmun of the US Supreme Court and received his BA and JD from Yale University. John Dugard SC is Emeritus Professor of International Law at the Universities of Leiden and the Witwatersrand, and a member of the Institut de Droit International. He was Director of the Lauterpacht Centre for International Law at the University of Cambridge in 1995, a member of the International Law Commission from 1997 to 2011 and UN Special Rapporteur on the Situation of Human Rights in the O ccupied Palestinian Territory from 2001 to 2008. He has served as a Judge ad hoc of the International Court of Justice on six occasions. Rolf Einar Fife is Ambassador of Norway to France and Monaco. He was DirectorGeneral of Legal Affairs at the Ministry of Foreign Affairs of Norway from 2002 to 2014. Prior to that, he had occupied various positions within the Ministry, including Norway’s permanent mission to the United Nations, and as head of the division for the law of international organisations and the law of the sea. In the course of his career, he has represented Norway before international courts and tribunals. In 2009/10, he was elected to preside over the Committee of Legal Advisers on Public International Law of the Council of Europe. He is a member of the Permanent Court of Arbitration.

Notes on Contributors xi Duncan French is Professor of International Law, Head of the Law School and PGT Dean at the University of Lincoln. He has written extensively on international law and international environmental law. He was Chair of the International Law Association Study Group on Due Diligence and International Law. Judge Giorgio Gaja is a Judge of the International Court of Justice and Emeritus Professor at the University of Florence Law School. In 2014, his general course at the Hague Academy was published under the title ‘The Protection of General Interests in the International Community’. Thomas D Grant is Fellow of Wolfson College and Senior Associate of the Lauterpacht Centre for International Law at the University of Cambridge, and an Associate Member of 3 Verulam Buildings in London. He has served as legal advisor to governments, international organisations, corporate clients, and two US presidential election campaigns. He has an extensive practice before international courts and tribunals, and is admitted to practise in the District of Columbia, New York, Massachusetts, and at the US Supreme Court. He is the author of several books, the most recent of which is Aggression Against Ukraine: Territory, Responsibility and International Law (Palgrave MacMillan, 2015). Douglas Guilfoyle is Professor of Law at Monash University in Melbourne, Australia. He researches and teaches in public international law with an emphasis on the law of the sea and international criminal law. He is the author of Shipping Interdiction and the Law of the Sea (CUP, 2009), International Criminal Law (OUP, 2016) and numerous articles on maritime security, naval warfare and piracy. Robert Kolb is Professor of Public International Law at the University of Geneva. He formerly worked for the International Commission for the Red Cross in Geneva. Sam Luttrell is Partner in the International Arbitration Group at Clifford Chance LLP, based in Perth. His practice is focused on investor–State arbitration in the energy and resources sector. He is ranked in Band 1 for arbitration (Australia) in Chambers Global and is listed as a ‘future leader’ of international arbitration in Who’s Who Legal. In addition to his work as counsel, he is a regular contributor to international law and arbitration journals, and teaches at universities and arbitral institutions around the Asia-Pacific region. Cameron Miles is a barrister at 3 Verulam Buildings in London, specialising in public international law with a focus on state immunity, state responsibility, the procedure of international courts and tribunals, and international investment disputes. He is the author of Provisional Measures before International Courts and Tribunals (CUP, 2017), and numerous scholarly articles, notes and book reviews in his fields of expertise. He is admitted to practise in Australia, England and Wales, and holds an LLM and PhD from the University of Cambridge. Makane Moïse Mbengue is Associate Professor of International Law at the Faculty of Law of the University of Geneva and Affiliated Professor at Sciences Po Paris (School of Law). He has acted, and still acts, as expert for the African Union, the United Nations Economic Commission for Africa, the United Nations Environment Programme, the World Health Organization, the World Bank, the International

xii Notes on Contributors Labour Organization and the International Institute for Sustainable Development among others. He also works as a professor for courses in International Law organised by the United Nations Office of Legal Affairs and by the United Nations Institute for Training and Research. He further acts as counsel in disputes before international courts and tribunals, and as advisor for governments in several fields of international law. He is the author of several publications in the field of international law. Paul Mertenskötter is Fellow at the Institute for International Law and Justice at New York University School of Law. There, he works on the MegaReg Project, and the law and global governance of health regulation focused on diet and non- communicable diseases. He was a law clerk at the International Court of Justice from 2014 to 2015. He holds a JD, cum laude, from NYU, where he was a Guarini Government Service Scholar, German Academic Scholarship Foundation Scholar and recipient of the Jerome Lipper Prize for outstanding work in international law. He did his undergraduate work in philosophy, politics and economics at the Universities of York and Pennsylvania. Callum Musto is a doctoral candidate in Public International Law at the London School of Economics and Political Science. His research spans a range of topics in international law including sources doctrine and theory, jurisdiction, international dispute settlement, law of the sea, international environmental law, and international economic law. He has taught public international law, European Union law and public law at the University of Oxford, the London School of Economics and the Australian National University. He holds a Master’s degree in international law from the University of Oxford and degrees in law, history and international relations from the Australian National University. He is co-editor of the UK Materials on International Law for the British Yearbook of International Law. Rowan Nicholson is a doctoral candidate in the Faculty of Law at the University of Cambridge, undertaking a dissertation on the concept of legal personality in international law. He has Bachelor’s degrees in Law and Arts from the University of Adelaide and Master’s degrees in International Relations and Law from Macquarie University and the University of Cambridge, respectively. Previously, he was Senior Associate to Professor James Crawford AC SC at the Lauterpacht Centre for International Law. Sarah Nouwen is University Senior Lecturer, Co-Deputy Director of the Lauterpacht Centre for International Law and a Fellow of Pembroke College at the University of Cambridge. Prior to assuming her lectureship, she served as Senior Legal A dvisor to the African Union High-Level Implementation Panel for Sudan, and as a consultant for the Netherlands Ministry of Foreign Affairs and the United Kingdom Department for International Development. She is the author of Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (CUP, 2013). Katherine O’Byrne is a barrister at Doughty Street Chambers in London, specialising in international law, human rights, public law and extradition. She has been instructed as junior counsel in the Supreme Court, Court of Appeal and in public

Notes on Contributors xiii inquiries, and has represented individual and state clients before UN bodies and the International Court of Justice. She has expertise in domestic claims with international law elements, including torture, arbitrary detention and sexual abuse cases, and regularly acts on behalf of children in need. She previously practised as a solicitor at Freehills (now Herbert Smith Freehills) and was an associate to Justice Kenneth Hayne AC of the High Court of Australia. She holds an LLM from the University of Cambridge, she is the co-editor of Surrogacy, Law and Human Rights (Ashgate/ Routledge, 2015), and has published in the areas of public law, gender, children’s rights and refugee law. Nikiforos Panagis is a doctoral candidate and Graduate Teaching Assistant in Public International Law in the Faculty of Law at the University of Oxford. He is the r ecipient of a doctoral grant by the Academy of Athens in Greece. He has previously studied law at the National and Kapodistrian University of Athens, where he received an LLB and LLM, and at the University of Oxford, where he obtained a MJur and MPhil. Surabhi Ranganathan is Lecturer in International Law at the University of C ambridge, Fellow of King’s College, Cambridge, and Fellow of the Lauterpacht Centre for International Law. She is the author of Strategically Created Treaty Conflicts and the Politics of International Law (CUP, 2014). Her research explores histories and politics of international law, with a current focus on the designation, representations and regulation of global commons, especially the deep seabed. She has written on nuclear governance, particularly in the context of the India–US nuclear deal, for law journals as well as online fora. Catherine Redgwell is Chichele Professor of Public International Law at All Souls College, University of Oxford, having previously held posts at UCL and at the Universities of Nottingham and Manchester. She has published extensively in public international law, particularly in the areas of international environmental law, international energy law, law of the sea, and the law of treaties. She is joint general editor of the British Yearbook of International Law and co-editor of Oxford Monographs in International Law for Oxford University Press. Sir Nigel Rodley was Emeritus Professor of Law at the University of Essex. From 1973 to 1990 he was legal adviser to Amnesty International. From 1993 to 2001 he served as Special Rapporteur on Torture on the UN Commission on Human Rights, thereafter becoming a member of the UN Human Rights Committee—serving as its president from 2013 to 2014. In 2005, he received the American Society of International Law’s Golter T. Butcher Medal for distinguished work in human rights. He was the author of numerous books and articles on international human rights and humanitarian law, most notably The Treatment of Prisoners Under International Law, published by Oxford University Press in 1987 and now in its 3rd edition. Philippe Sands QC is Professor of Law at University College London and Director of the Centre on International Courts and Tribunals. He has held visiting professorships at (inter alia) the University of Toronto (2005), the University of Melbourne (2005) and the Université de Paris I (Sorbonne). He is also a barrister and a rbitrator,

xiv Notes on Contributors practicing from Matrix Chambers in London. In this capacity, he has extensive experience before a variety of international courts and tribunals, including the International Court of Justice, the International Tribunal for the Law of the Sea and the European Court of Justice. He also advises states, governments and other entities on public international law issues. He has been appointed to the list of arbitrators maintained by the International Center for Settlement of Investment Disputes and the Permanent Court of Arbitration. His most recent book, East West Street: On the Origins of Genocide and Crimes Against Humanity (Weidenfeld & Nicholson, 2016) won the 2017 Baillie Gifford (Samuel Johnson) Prize for Non-Fiction. Antonios Tzanakopoulos is Associate Professor of Public International Law and Fellow of St Anne’s College at the University of Oxford. He has taught as a visitor at the Universities of Paris (Paris X Nanterre), London (King’s College), Athens (National and Kapodistrian), at the Interdisciplinary Center in Herzliya, and at the China University of Political Science and Law in Beijing. He was previously lecturer in international law at University College London and at the University of Glasgow. He has also delivered a special course at the Xiamen Academy of International Law in 2017 and has been invited by the Curatorium of the Hague Academy of International Law to serve as Director of Studies in 2021. He is Secretary-General of the International Law Association and Joint Secretary of its British branch. Omri Sender is counsel for the World Bank, and a consultant and litigator in public international law. Since 2012, he assists the Special Rapporteur of the UN International Law Commission on the topic ‘Identification of Customary International Law’. A graduate of Tel Aviv University (LLB, LLM) and New York University (LLM), he is currently pursuing a doctoral degree in international law (SJD) at the George Washington University Law School. Michael Waibel is Senior Lecturer and Co-Deputy Director of the Lauterpacht Centre for International Law, and Fellow of Jesus College at the University of Cambridge. His main research interests are public international law, international economic law with a focus on finance and the settlement of international disputes. Sir Michael Wood is a member of the UN International Law Commission, and S enior Fellow of the Lauterpacht Centre for International Law at University of Cambridge. He is a barrister at 20 Essex Street in London, where he practises in the field of public international law, including before international courts and tribunals. He was Legal Adviser to the UK’s Foreign and Commonwealth Office between 1999 and 2006, having joined as an Assistant Legal Adviser in 1970.

1 Introduction EIRIK BJORGE AND CAMERON MILES

There is some tendency on the part of English lawyers to regard that body of custom and convention which is known as International Law, as fanciful and unreal; as a collection of amiable opinions, rather than a body of legal rules. The text writers have much to answer for in this respect. Their real function is to record and collate existing usage. The function which they have striven to assume has been that of authorship. They frequently prescribe, not what is, but what they think ought to be, the practice of nations. Rules originating thus, necessarily command but scanty reverence; and perhaps nothing has tended more to lessen the esteem in which International Law is held than the misapprehension which has been begotten.1

N THE AUTUMN of 1885, Pitt Cobbett2—a barrister of Gray’s Inn and a tutor at the Universities of Oxford and London—published a volume of leading cases on public international law. Books of this kind were, in an age before the International Law Reports and the Max Planck Encyclopedia of Public International Law, essential to the discipline’s practice, containing excerpts of and helpful commentary on the various decisions (almost entirely of domestic courts) that had helped shape the field, such as it then was.

1 P Cobbett, Leading Cases and Opinions on International Law (London, Stevens and Haynes, 1885) v (Leading Cases). 2 Cobbett was not much of a barrister: despite having chambers at 4 King’s Bench Walk in the Temple, he saw himself as an academic, and never practised. He was, however, one of the principal legal figures of early Australia. Born in Adelaide in 1853, he migrated to England with his parents in 1864, matriculating into University College, Oxford, in 1873. He took a BA in 1876, an MA and BCL in 1880, and a DCL in 1887. In 1890, he returned to Australia, where he was appointed to the Challis Professorship in the Faculty of Law at the University of Sydney and became its first Dean. Leading Cases ran to three editions—the second appeared in 1892 and the third (in two volumes, Peace and War and Neutrality) in 1909 and 1913. Further editions were published by others posthumously. At the time of his death in 1919, he was completing a major work on the Constitution of Australia. The manuscript was very close to completion; but in 1920, the High Court of Australia handed down judgment in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (the famous Engineers’ Case), which radically altered the nature of federalism in the Commonwealth through eradication of the doctrines of implied intergovernmental immunities and reserved state powers. The book would have required substantial revisions and was thus never published. Further: FC Hutley, ‘Cobbett, William Pitt (1853–1919)’ in Australian Dictionary of Biography, vol 8 (Melbourne, Melbourne University Press, 1981).

2 Eirik Bjorge and Cameron Miles It is fair to say that much of Cobbett’s Leading Cases would be unfamiliar to the modern eye—both in terms of its structure and the cases that Cobbett alighted upon as being worthy of reportage. The most recent edition of Brownlie’s Principles of Public International Law3 is divided into 11 parts, beginning with the sources and relations of international law, and then moving through personality and recognition, territorial sovereignty, the law of the sea, the environment, international transactions, jurisdiction, nationality, state responsibility, the protection of individuals and groups (diplomatic protection, human rights and international criminal law) before concluding, somewhat euphemistically, with disputes (encompassing the claims process, settlement of international disputes, and the use and threat of force by states). A single chapter—the last in Brownlie’s Principles—is given over to questions relating to war, and it confines these within the four walls of the UN Charter. Leading Cases, on the other hand, is divided into three parts: peace, war, and neutrality. ‘Peace’ begins with a discussion of international personality by reference to the Cherokee Nation v State of Georgia,4 in which the US Supreme Court determined that whilst the Cherokee were a distinct political society, they could not be considered foreign states for the purposes of the US Constitution, likening the relation between the US and the various Native American tribes as like that of ‘a ward to its guardian’. It then moves through the topics of state jurisdiction (comprising a single case, R v Keyn,5 also known as The Franconia), before dealing with public and private vessels, foreign sovereigns, questions of nationality, ambassadors, the slave trade, and piracy. ‘War’ considers steps short of war, the effects of declarations of and the outbreak of hostilities, trading with the enemy, ransom contracts, capture in war, prize and booty, salvage, and the termination of hostilities. The majority of cases and incidents included in this part concern the activity of ships.6 Less than familiar names leap out: The Hoop,7 The Vrouw Margaretha,8 The Swineherd.9

J Crawford, Brownlie’s Principles of International Law, 8th edn (Oxford, OUP, 2012). US (5 Peters) 1 (1831). Surprisingly, the following year, the Court declared that the Cherokee nation was sovereign, such that Georgia state law could not be enforced in Cherokee territory: Worcester v Georgia, 31 US (6 Peters) 515 (1832). Further: JC Burke, ‘The Cherokee Cases: A Study in Law, Politics, and Morality’ (1969) 21 Stanford LR 500. 5 (1876) 2 Ex D 63. It is irresponsible to suggest that this case stands for any concrete proposition: see CA Miles, ‘The Franconia Sails On: Revisiting the Intellectual History of the Territorial Sea in the United States, Canada and Australia’ (2013) 13 OUCLJ 347. 6 A high number of these concern judgments given by Sir William Scott, a judge in the English High Court of Admiralty and perhaps the greatest British international lawyer of his day, during the Napoleonic Wars and in the aftermath of the American War of Independence: HJ Bourguignon, Sir William Scott, Lord Stowell: Judge of the High Court of Admiralty, 1798–1828 (Cambridge, CUP 1987). 7 Setting out the general rule that in times of war trading with the enemy without the permission of the Sovereign was forbidden: (1799) 1 C Rob 196. 8 Establishing that property consigned by an enemy to a neutral vessel will be held liable for condemnation unless evidence is furnished that the consignee is the true owner of the goods: (1799) 1 C Rob 336. 9 Establishing that war, although usually terminated via treaty of peace, can in certain situations be terminated by simple cessation of hostilities, or the conquest and submission of one of the belligerent states, in whole or in part: extracted in P-A Merlin, Répertoire de jurisprudence, Tome XI (Prise) (Paris, Chez Garnery, 1815) 183. 4 30

Introduction 3 ‘Neutrality’ follows a similar theme: neutral territory is considered at length, f ollowed by a lengthy section on the duties of neutral states, the laws of blockade, contraband, continuous voyage, and the Rule of the War of 1759.10 One case does prompt recognition in modern eyes: the Alabama Claims11 (cited as ‘the Geneva Arbitration and Award’) is the subject of substantial discussion. Another familiar sight is not a case at all: The Caroline incident.12 Although Leading Cases might today seem parochial, by the standards of its time, the fact that Cobbett’s collection contained any genuinely international materials was nothing if not forward-looking.13 The overlap (or rather, the lack thereof) between the schema of Leading Cases and Brownlie’s Principles demonstrates the ‘widening and thickening’14 that international law has experienced in the 128 years between the publication of the two books. Cobbett’s international law was little more than a rule-based extrusion of international diplomacy, in which what few directives there were for the regulation of hostilities took pride of place, with the rest occupied by the corollaries of sovereignty: personality, territory, nationality, and immunity. The engine room of the lawmaking process was diplomatic interaction between the chancelleries of states awarding themselves the epithet ‘civilised’ and the judgments of their courts. Even temporary international tribunals were scarce, and the idea of a permanent international court impossible. Beyond bodies such as the various river commissions, international organisations did not exist in any meaningful sense. Leading Cases, therefore, was a fair presentation of a case law worthy of the somewhat dubious name given to it by WE Hall—‘a rough jurisprudence of nations’.15 The international law of Brownlie’s Principles, however, is reflective of a fully articulated legal system, complete with a distinct theory of sources, developed secondary rules of responsibility, an international organisation of plenary membership in the UN, and an ever-expanding constellation of international courts and tribunals headed informally by the International Court of Justice (ICJ) and producing hundreds of decisions, judgments, and awards annually. It regulates—and is acknowledged as regulating—the relations of states with a depth and complexity that would have been impossible when Leading Cases went to press. Cobbett, one suspects, would have been pleased (and possibly surprised) to see what his chosen field has become.

10 Being that, on the outbreak of war, a neutral was entitled to continue trade that it had previously possessed, but was not permitted to commence new trade with either belligerent without violating the law of neutrality: The Immanuel (1799) 2 C Rob 186. 11 Alabama Claims (US/UK) (1871) 29 RIAA 125. 12 The Caroline (1840–1841) 29 BFSP 1129. Further: RY Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 AJIL 82. 13 Contemporaneous collections pertaining to international issues would contain only judgments by the domestic courts, including the prize courts, whereas the opinions on international matters which were included were by domestic Law Officers: see, eg, G Chalmers (ed), Opinions of Eminent Lawyers (Burlington, C Goodrich & Co, 1858); RG Marsden (ed), Documents relating to Law and Custom of the Sea (London, Navy Records Society, 1916). 14 R Higgins, ‘A Babel of Judicial Voices: Ruminations from the Bench’ (2006) 55 ICLQ 791, 792. 15 WE Hall, A Treatise on International Law, 8th edn (Oxford, OUP, 1924) 395.

4 Eirik Bjorge and Cameron Miles II

The purpose of this slightly meandering introduction is to highlight that the structure, complexity, and mission of international law has evolved rather more in the past century than other systems of law. That being the case, it is appropriate to take stock, to consider how we reached this point and what cases have been—or are thought to have been—essential in bringing us here. Landmark Cases in Public International Law brings together 22 analyses of some of the most prominent international decisions of the past two centuries in international law with a view to interrogate critically their continued relevance. Confirming the rapid evolution of the field, only one would have been familiar to Cobbett: The Charming Betsy,16 an 1804 decision of the US Supreme Court that he did not, more than 80 years later, see fit to include in his Leading Cases.17 Even if one accepts that, in the normal course of events, a period of reflection is needed before a case can be considered a landmark, that seems a glaring omission.18 This brings us on to the question of what makes a case a ‘landmark’. In its literal sense, a landmark is a point of reference on the road to somewhere else—an object that lets the traveller know that they are not the first person in that place. In a more metaphorical sense, it is something of continued significance, attesting to the progress of a particular subject. All of the cases in this volume were selected by us, as editors, for their reputation as landmarks of public international law. In receiving the brief, contributors were given little more guidance than this description, an assigned case (or cases), and the request that they actively question whether these judgments, awards, or opinions were still to be afforded that appellation—or, indeed, whether they had deserved it in the first place. Given the unique environment in which international law still operates, they were also asked to analyse their assigned cases as diplomatic as well as legal artefacts. In selecting the cases, we were motivated by several considerations: (1) to prioritise the decisions of international courts and tribunals over domestic courts so as not to replicate the kind of parochialism that was forced on Cobbett and his contemporaries; (2) to ensure an even balance between international courts and tribunals; and (3) to ensure parity between different sub-systems of international law. A possible criticism of the final selection might be that it gives too much weight to the combined case-law of the Permanent Court of International Justice (PCIJ) and its successor, the ICJ. To our minds, this is defensible: as the informal apex of the system of international courts and tribunals, the Court (in both its guises) has been responsible for many of the foundational decisions of the modern system of international law, and continues to serve this function today as the only permanent international court of plenary jurisdiction. Furthermore, and notwithstanding the recent florescence of

Murray v The Charming Betsey, 6 US (2 Cranch) 64 (1804). WS Dodge, this volume, ch 1. case was granted right of berth in the third edition: Leading Cases, 3rd edn, vol 1 (London, Stevens and Haynes, 1909). 18 That being said, having had ourselves to make the kind of difficult determinations that Cobbett was called on to make, however, we do not believe that all the beams are in the eyes of others: we take heart from the possibility that obvious omissions can be included in later editions or volumes. 17 The

Introduction 5 international adjudicatory bodies, it was for most of its history the proverbial ‘only game in town’.19 To seek diversity at the expense of the Court’s contribution would potentially undermine the project’s mission. Nevertheless, efforts have been made to balance these competing requirements. At any rate, whilst the reader may question the inclusion of some cases rather than others, we hope they will agree that the cases selected and the insights of the individual contributors give a three-dimensional understanding of international law: what it was, what it is, and what it might yet become. *** The book commences with William S Dodge’s discussion of two of the foundational cases for the interaction of international and municipal law: The Charming Betsy; and The Paquete Habana.20 Both are decisions of the US Supreme Court and represent the only municipal cases in the volume, for the reasons already given. In a nice piece of symmetry, Dodge’s analysis is bookended by the final chapter, Omri Sender and Sir Michael Wood’s contribution on Jurisdictional Immunities of the State, the ICJ’s signal elaboration on the law of state immunity and its interaction with the jurisdiction of municipal courts.21 Although the chapters in between are arranged chronologically, distinct themes and sub-groups appear—as is often the case, however, the decisions within these groups often make significant forays into more general questions of international law. The first of these are a series of diplomatic protection cases before the PCIJ and ICJ that provided much of the grounding not only in that area of law but in diverse areas such as the definition of state acts, remedies in international law, and corporate nationality. Michael Waibel discusses the Mavromattis Palestine Concessions case, a classic of diplomatic protection.22 Chester Brown considers the various phases of the Factory at Chorzów saga23 and the famous pronouncement of the PCIJ on remedies in international law. Judge Giorgio Gaja analyses the ongoing relevance of Barcelona Traction,24 the decision that refined the rules on corporate nationality and

19 See KJ Alter, ‘The Multiplication of International Courts and Tribunals after the End of the Cold War’, in CPR Romano, KJ Alter and Y Shany (eds), The Oxford Handbook of International Adjudication (Oxford, OUP, 2014) 63. 20 To pre-empt an obvious criticism, the volume does not commence with a discussion of the Alabama Claims for two reasons. First, the decision is today cited more for the fact that it took place than for any enduring principles of law—the substantive questions raised in the arbitration were determined in accordance with certain agreed rules on the duties of neutrals that have little or no application today. (Though, we recognise that the decision is still cited as an early authority for the principles—now largely taken for granted—of compétence de la compétence (see, eg, Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2011] 1 AC 763, [81]) and that international law prevails over domestic law (see, eg, Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, [1998] ICJ Rep, 12, 34)). Second, and more importantly, it would be difficult to improve on the superlative analysis of the arbitration by Lord Bingham: T Bingham, ‘The Alabama Claims Arbitration’ (2005) 54 ICLQ 1. 21 O Sender and M Wood, this volume, ch 22. 22 M Waibel, this volume, ch 3. 23 C Brown, this volume, ch 4. 24 G Gaja, this volume, ch 13.

6 Eirik Bjorge and Cameron Miles formally recognised the concept of obligations erga omnes. The historical endpoint of this discussion is reached in Sam Luttrell’s chapter on the proceedings in Vivendi v Argentina,25 an episode representative of the modern system of treaty-based investor–state dispute settlement that made a significant contribution to the distinction between contract and treaty claims in international law. Another distinct bloc contains two early cases on the law of territory. Eirik Bjorge tackles the Island of Palmas case,26 and with it the modern foundation of the lex temporis in international law. This chapter also represents an opportunity to consider the legacy of one of the great figures of the field in the early twentieth century: Max Huber, who sat as sole arbitrator in that case. Ambassador Rolf Einar Fife then considers Legal Status of Eastern Greenland,27 an early case that elaborated on the modern requirements for the assertion of sovereignty over territory and the effect of unilateral undertakings by states in international law. Later in the book, cases begin to emerge on another significant sub-system: international law and the environment. Multiple chapters touch on this area. Duncan French addresses Trail Smelter,28 the dispute between the US and Canada that begat an entirely novel tributary of law: transboundary harm. Laurence Boisson de Chazournes and Makane Moïse Mbengue consider the ICJ’s decision in GabčíkovoNagymaros,29 the famous ‘Danube Dam’ case that also made significant statements on state responsibility and the law of treaties. Finally, Callum Musto and Catherine Redgwell discuss US—Shrimp30 (also known as Shrimp/Turtle), a decision on trade and the environment that brings into play dispute settlement and the World Trade Organization. Another later chronological appearance is international criminal law and the law of human rights. Katherine O’Byrne and Philippe Sands revisit the origins of the former field in the Nuremberg Trials,31 at which the concept of an international crime was made reality and the word ‘genocide’ first used in open court. Sarah Nouwen and Michael Becker consider the decision in which international criminal law emerged in its modern form, the interlocutory appeal in Tadić v Prosecutor,32 charting the contributions of that case to general international law, international humanitarian law, international criminal law and international legal reasoning. From the perspective of human rights, Sir Nigel Rodley opines on Tyrer v UK,33 a decision of the European Court of Human Rights with much to say on the interpretation of treaties, and which crystallised the modern standard of what constitutes inhuman, cruel, and degrading treatment. Yet another grouping is that of the law of the sea. Two chapters address this theme, although they are perhaps more significant for what they say about other areas of international law. Douglas Guilfoyle confronts the case of the SS Lotus34 25

S Luttrell, this volume, ch 19. E Bjorge, this volume, ch 6. 27 RE Fife, this volume, ch 7. 28 D French, this volume, ch 8. 29 L Boisson de Chazourne and MM Mbengue, this volume, ch 18. 30 C Redgwell and C Musto, this volume, ch 20. 31 P Sands and K O’Byrne, this volume, ch 9. 32 SMH Nouwen and MA Becker, this volume, ch 16. 33 N Rodley, this volume, ch 14. 34 D Guilfoyle, this volume, ch 5. 26

Introduction 7 and subjects to searching inquiry its notorious eponymous principle—that what is not expressly prohibited for states in international law must be permitted. Nikiforos Panagis and Antonios Tzanakopoulos address the North Sea Continental Shelf cases—formally a maritime delimitation, but also arguably the source of the modern understanding of the development of customary international law and its relationship to treaty norms. International humanitarian law and the law concerning use of force form yet a further distinct cluster. In this context, Robert Kolb considers the various phases of Nicaragua,35 a true landmark concerning both the use of force under the UN Charter and the extent to which international law and the ICJ could be used to hold a superpower such as the US to account. Surabhi Ranganathan addresses the ICJ’s conclusions in the Nuclear Weapons Advisory Opinions,36 and uses these as an opportunity to address the Court’s troubled relationship with nuclear weapons more generally. Finally, John Dugard addresses another of the Court’s advisory opinions in Wall,37 and what that decision says about international humanitarian law, the law of occupation, the law of self-defence, and other areas. He also takes the opportunity to consider the wider effect of the Court’s advisory jurisdiction, and to address one of the most long-running and problematic issues in international affairs, the situation of Israel–Palestine. Finally, three chapters consider cases connected to the ICJ and its relationship with the UN as its principal judicial organ. At the broadest level, Tom Grant and Rowan Nicholson, in their chapter on the Early United Nations Advisory Opinions,38 address some of the early decisions of the ICJ that set in place the administrative structure of the UN and refined its relationship with its member states, setting it on course to become the vital body it is today. In so doing, the Court also shaped the contours of the modern law of international organisations. Judge James Crawford and Paul Mertenskötter consider the South West Africa Cases,39 a two-judgment and four-advisory-opinion epic that reveals important truths about the workings of the ICJ and its relationship with the other principal organs of the UN, wrapped up in the historical context of South Africa’s long-running resistance to international law and public opinion in relation to its occupation of Namibia. Finally, Cameron Miles addresses the Court’s role in the development of the international civil procedure through the lens of LaGrand,40 a case in which the ICJ put to an end a controversy of some eight decades concerning its capacity to order binding interim relief. III

As it is customary to remark, books of this kind would not exist without the assistance of a large number of people. With that in mind, we first extend our profound thanks to the contributors, who tolerated with charm and good humour the usual combination 35

N Panagis and A Tzanakopoulos, this volume, ch 12. S Ranganathan, this volume, ch 17. 37 J Dugard, this volume, ch 22. 38 TD Grant and R Nicholson, this volume, ch 11. 39 J Crawford and P Mertenskötter, this volume, ch 10. 40 C Miles, this volume, ch 21. 36

8 Eirik Bjorge and Cameron Miles of chaser emails and ‘helpful’ suggestions that characterise modern academic editors,41 and despite which they produced chapters of uniformly high quality.42 We also thank Sir Franklin Berman KCMG QC for his gracious Foreword, produced under similar circumstances, as well as the anonymous referees to whom we sent selected chapters for review. This project commenced with an academic seminar held at All Soul’s College, Oxford, on 17 June 2015. That seminar, which was successful, would not have been possible without the good offices of Catherine Redgwell, to whom we are extremely grateful. Similar essential assistance, of a financial character, was provided by Jesus College, Oxford and Trinity Hall, Cambridge. At Hart Publishing (now an imprint of Bloomsbury) Sinead Moloney was enthusiasm personified in receiving the original proposal for the book, and Bill Asquith and Francesca Sancarlo efficiently moved it through the publication process. Much-needed copy-editing assistance was ably provided in the first instance by Reece Lewis, a doctoral candidate in public international law at the University of Bristol. Hart’s own copy-editor, Vicki Hillyard, was a model of efficiency. Finally, a word of explanation is perhaps owed for the image that graces the cover of this book. It is the architectural drawings for the ‘World Peace Centre’ in The Hague, reflecting an expansion plan for the Dutch capital by the architect, urban planner and designer Hendrik Petrus Berlage (1856–1934).43 This elaborate design would have incorporated the Peace Palace, which can be seen in the top right of the octagon that dominates the image. However, like many things in international law, despite the best will in the world, issues of cost and practicality intervened, and the lex ferenda never became lex lata.

*** On 25 January 2017, shortly before this volume went to press, Professor Sir Nigel Rodley died.44 He was 75 years old. He is survived by his wife, Lyn. They were married in 1967. 41 Although some older descriptions of the editorial function remain perfectly adequate. See eg A Bierce, The Devil’s Dictionary (Oxford, OUP, 1999):

EDITOR, n. A person who combines the judicial functions of Minos, Rhadamanthus and Aeacus, but is placable with an obolus; a severely virtuous censor, but so charitable withal that he tolerates the virtues of others and the vices of himself; who flings about him the splintering lightning and sturdy thunders of admonition till he resembles a bunch of firecrackers petulantly uttering his mind at the tail of a dog; then straightway murmurs a mild, melodious lay, soft as the cooing of a donkey intoning its prayer to the evening star. Master of mysteries and lord of law, high-pinnacled upon the throne of thought, his face suffused with the dim splendors of the Transfiguration, his legs intertwisted and his tongue a-cheek, the editor spills his will along the paper and cuts it off in lengths to suit. And at intervals from behind the veil of the temple is heard the voice of the foreman demanding three inches of wit and six lines of religious meditation, or bidding him turn off the wisdom and whack up some pathos. 42 It should be noted that although limited opportunity was given to the authors to update their chapters during the publication process, the law as presented is generally as it was in December 2016. 43 A Effinger, Het Vredespaleis, 1913–1988 (The Hague, AW Sijthoff, 1988) 61. 44 See now G Robertson and I Crewe, ‘Sir Nigel Rodley obituary: Human rights lawyer committed to eradicating torture’ (The Guardian, 2 February 2017) accessed 4 April 2017; B Çali, ‘In memoriam: Professor Sir Nigel Rodley’ (EJIL: Talk!, 2 February 2017) accessed 4 April 2017.

Introduction 9 For most students and scholars of international law, it is considered a life well spent to have contributed to the field in a manner worthy of citation in the spirit of Article 38(1)(d) of the ICJ Statute. Giants of the discipline may, however, exceed this. Sir Nigel, in a very real sense, was one of the creators of what we now know to be the international law of human rights. Born in the West Riding of Yorkshire in 1941, he was educated initially at Clifton College, then attended the University of Leeds (LLB, 1963), Colombia University (LLM, 1965) and New York University (LLM, 1970). He was awarded a PhD from the University of Essex (1992) and an LLD from Dalhousie University (2000), where he had taken up his first teaching position as a young academic. Sir Nigel’s professional contributions to human rights commenced when in 1973 he took up a position as the legal adviser of Amnesty International, a role he held until 1990 whilst also occupying a teaching position at the London School of Economics. Whilst in these positions, he played a key role in the drafting of the UN Convention Against Torture.45 After that time, he was appointed a Reader at the Faculty of Law at the University of Essex, and promoted to full Professor in 1994. From 1993 to 2001, he served as Special Rapporteur on Torture of the UN Commission on Human Rights, thereafter becoming a member of the UN Human Rights Committee, as established under the International Covenant on Civil and Political Rights;46 he served as its chairperson from 2013 to 2014. His academic writings on human rights and international humanitarian law were no less essential, in particular his 1973 article (co-authored with another giant of the field, Tom Franck) in the American Journal of International Law on the law of unilateral humanitarian intervention,47 his 1987 treatise on The Treatment of Prisoners under International Law,48 and his 2002 contribution to Current Legal Problems on the definition of torture in international law,49 produced at a time of moral crisis for practitioners in the field. As befitted his colossal energies, Sir Nigel was made a Knight Commander of the Order of the British Empire in 1998 in recognition of his services to human rights and international law. In 2005, he received the American Society of International Law’s Golter T Butcher Medal for distinguished work in human rights. For all this, Sir Nigel was and remained an unfailingly generous and encouraging man and it was in this capacity that we knew him as a contributor to this volume. His chapter on Tyrer v UK is characteristic of his voice: deeply human, deeply learned and perceptive of the strengths and weaknesses of international law. We dedicate this book to his memory.

45 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment, 10 December 1984, 1465 UNTS 85. 46 16 December 1966, 99 UNTS 171. 47 T Franck and N Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’ (1973) 67 AJIL 275. 48 N Rodley, The Treatment of Prisoners under International Law (Oxford, OUP, 1987). A second edition appeared in 1999 and a third—produced with the assistance of Matt Pollard—in 2009. 49 NS Rodley, ‘The Definition(s) of Torture in International Law’ (2002) 55 CLP 467.

2 The Charming Betsy and The Paquete Habana (1804 and 1900) WILLIAM S DODGE

I. INTRODUCTION

URRAY V THE Schooner Charming Betsy1 and The Paquete Habana2 are two familiar landmarks along the course of the US Supreme Court’s long engagement with international law. The Charming Betsy is best known for its statement that ‘an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains’,3 a principle of interpretation that may be traced to Blackstone’s Commentaries and is known today as the Charming Betsy canon. The Paquete Habana’s significance lies in its statement that ‘[i]nternational law is part of our law’, but also in the possibility that international law might be superseded as a rule of decision by a ‘controlling executive or legislative act or judicial decision’.4 Although written nearly 100 years apart, each case appears to stand for similar propositions—that international law has an important place in the law of the United States, but that US domestic law should prevail in the event of conflict. What often goes unnoticed is that these decisions made their famous statements against the backdrop of very different understandings about international law and its relationship to US domestic law. Over the course of the nineteenth century, three profound shifts occurred in US thinking about customary international law. First, the theoretical foundations of customary international law shifted away from natural law towards positivism. Second, the consent requirement for making customary international law shifted from the individual consent of each state to the consent of states generally. And third, the US understanding of the relationship between international law and domestic law shifted away from monism towards dualism—away from an understanding that international law was part of US law unless displaced, towards an understanding that international law was not part of US law unless adopted.

6 US (2 Cranch) 64 (1804). 175 US 677 (1900). The Charming Betsy (n 1) 118. 4 The Paquete Habana (n 2) 700. 2 3

12 William S Dodge This chapter examines The Charming Betsy and The Paquete Habana as landmarks in a changing landscape of international law. It argues that neither case changed the course of international law in the United States but that each reflects the understandings of its own time about international law and the incorporation of international law in the US legal system. II. THE CHARMING BETSY

Today, the rule that a statute should be construed, if possible, not to violate international law is known as the Charming Betsy canon.5 But the association of the case with the canon is relatively recent. Nor did the decision break new ground when it applied the rule in 1804, for this principle had been a staple of American statutory interpretation for decades. Although The Charming Betsy has come to be seen as a landmark for international law in the United States, it is really just a representative example of the age in which it was decided. A. The facts From 1797 to 1800, the United States fought an undeclared ‘quasi-war’ with France.6During the conflict, Congress passed a series of Nonintercourse Acts, including one in 1800 that prohibited commerce between ‘any person resident within the United States or under their protection’ and residents of French territories.7 The 1800 act also subjected to capture and forfeiture ships in three categories: ships owned by US citizens or residents sailing to a port in French territories; ships sold by US citizens or residents to another person for the purpose of sailing to a port in French territories; and ships engaged in commerce by or for residents of French territories.8 On 10 April 1800, an American schooner called The Jane sailed from Baltimore.9 Its captain James Phillips had orders to sell the ship and its cargo in the Caribbean— at St Bartholomew if possible, and if not, then at St Thomas. At St Thomas, Phillips sold the schooner to a resident of that island, one Jared Shattuck, who renamed the ship The Charming Betsy. Shattuck was born in Connecticut before the American Revolution, but had moved to the Danish island of St Thomas as a child. In 1796, Shattuck became a Danish burger, with the privileges of a Danish subject, who owed allegiance to the Danish crown. 5 See, eg, CA Bradley, ‘The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law’ (1998) 86 Geo LJ 479. 6 See A DeConde, The Quasi-War: The Politics and Diplomacy of the Undeclared War with France, 1797–1801 (New York, Charles Scriber’s Sons, 1966). 7 An Act Further to Suspend the Commercial Intercourse between the United States and France, and the Dependencies Thereof, ch 10, § 1, 2 Stat 7, 8 (1800). 8 ibid. 9 The facts are taken from the district court’s decree, reproduced in the report of the Supreme Court’s decision, see The Charming Betsy (n 1) 64–70; and from an account of the case in FC Leiner, ‘The C harming Betsy and the Marshall Court’ (2001) 45 Am J Legal Hist 1.

The Charming Betsy and The Paquete Habana 13 On 25 June, The Charming Betsy sailed for the French island of Guadeloupe with a cargo owned by Shattuck. On 1 July, a French privateer took her as prize. Although Denmark was neutral in the conflict between the United States and France, the French captain claimed the ship was American, justifying its capture. Two days later, The Charming Betsy was captured again, this time by the American frigate Constellation, under the command of Captain Alexander Murray. Although The Charming Betsy carried Danish papers, she looked to be an American-built ship, and the French process verbal—an affidavit that the French privateer would have used to prove that the ship was a lawful prize—stated that the ship was American. Murray sent The Charming Betsy first to Martinique, to sell her cargo, and then to Philadelphia where Murray’s lawyers asked the court to condemn the ship for violating the Nonintercourse Act. To Murray’s dismay, the district court not only rejected his claim that The Charming Betsy was a lawful prize but also assessed damages against him for wrongfully seizing the ship.10 On appeal, the circuit court affirmed that the ship was not lawfully captured, but reversed the decree for damages.11 Both parties appealed to the Supreme Court. B. The Supreme Court’s Decision Chief Justice John Marshall delivered the opinion of the Supreme Court on 22 February 1804. Marshall summarised Captain Murray’s contentions as three: (1) that The Charming Betsy and her cargo were subject to confiscation under the Nonintercourse Act; (2) if not, that he was at least entitled to salvage for recapturing the vessel from the French; and (3) if not, that he at least had probable cause to seize the vessel and so should be excused from damages. The Supreme Court ruled against Murray on all three points. First, the Court had to construe the Nonintercourse Act, and it was in the courseofthis analysis that Marshall wrote the line for which his decision is now famous: ‘an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains’.12 It was the law of nations concerning the rights of neutrals that was relevant to the case, and the Chief Justice continued by observing that a statute ‘can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country’.13 Marshall’s discussion was beside the point, however, for Murray contended that Shattuck was not a neutral but a US citizen. Whether and how a US citizen might expatriate himself was politically controversial,14 and Marshall chose not to answer that question.15 Instead, he held as a matter of US domestic law—not the law of nations—‘that an American citizen may acquire in a foreign country, the

The Charming Betsy (n 1) 69–70. ibid, 70. 12 ibid, 118. 13 ibid. 14 Leiner, ‘The Charming Betsy’ (n 9) 12; see eg Talbot v Jansen, 3 US (3 Dall) 133 (1795). 15 See The Charming Betsy (n 1) 120. 11

14 William S Dodge commercial privileges attached to his domicile, and be exempted from the operation of an act expressed in such general terms as that now under consideration.’16 On the second point, the Court held that Murray was not entitled to salvage for having rescued The Charming Betsy from the French. In reaching this conclusion, Chief Justice Marshall followed his own decision three years earlier in Talbot vSeeman17 (also known as The Amelia), where he held that ‘a neutral vessel captured by a belligerent is to be discharged without paying salvage’ because ‘the liberation of a clear neutral from the hand of the enemy, is no essential service rendered to him, in as much as that the same enemy would be compelled by the tribunals of his own country after he had carried the neutral into port, to release him’.18 Marshall did not find any exception to this rule applicable in The Charming Betsy. She was not so armed as to ‘be in a condition to annoy American commerce’.19 Nor was she in ‘imminent hazard of being condemned’ by a French prize court determined to ignore the law of nations.20 The captors in Talbot had succeeded with the latter argument because of a French decree declaring that a ship would not be considered neutral if it carried enemy cargo.21 But Marshall apparently accepted the argument by Shattuck’s counsel that the French had changed their practice and would not now condemn a neutral ship.22 On the third and last point, the Court rejected Murray’s argument that he at least had probable cause to seize The Charming Betsy. She was carrying Danish papers, Chief Justice Marshall noted, which ‘appear to have been perfectly correct’.23 The French proces verbal stating that the ship was American was self-serving and not to be believed.24 The American build of the ship, its recent sale, and the fact that most of its crew was not Danish did not establish probable cause because they were not unusual facts.25 And although the common practice of giving neutral papers to American ships might have reinforced a legitimate suspicion, it could not ‘be itself a motive for the seizure’ for that would make all neutral vessels liable to seizure.26 Although Captain Murray lost on each point, the Supreme Court did find error in the determination of damages, ordering a recalculation on remand. In the end, Congress passed a private bill indemnifying Murray for the damages against him.27

16 ibid. Marshall went on to argue that the act itself seemed to exclude Shattuck because he was not ‘under the protection of the United States’. As a matter of statutory interpretation, this was questionable. The ‘under the protection’ language is found only in the Act’s prohibition of commerce. The relevant forfeiture provision omits this language and referred expressly to ‘citizens [of the United States] resident elsewhere’, which is precisely what Shattuck was alleged to be. See An Act Further to Suspend the Commercial Intercourse between the United States and France, and the Dependencies Thereof, ch 10, § 1, 2 Stat 7, 8 (1800). 17 5 US (1 Cranch) 1 (1801). 18 ibid, 36 (quoting The War Onskan (1799) 2 Rob 299, 300; 165 ER 323, 324). 19 The Charming Betsy (n 1) 121. 20 ibid. 21 See Talbot (n 17) 37-43. 22 The Charming Betsy (n 1) 95–105 (argument of counsel). 23 ibid, 123. 24 ibid, 122. 25 ibid, 123. 26 ibid. 27 See An Act for the Relief of Alexander Murray, ch XII, 6 Stat 56 (1805).

The Charming Betsy and The Paquete Habana 15 C. The Significance of the Decision The canon of construing statutes to avoid law-of-nations violations was not new to American law. In Talbot, the salvage case on which The Charming Betsy relied, Chief Justice Marshall had similarly written that ‘the laws of the United States ought not, if it be avoidable, so to be construed as to infract the common principles and usages of nations’.28 During the 1790s, the Supreme Court had decided a number of cases by reading the admiralty jurisdiction of the United States narrowly to avoid conflicts both with treaties and with the unwritten law of nations.29 The earliest American decision applying the consistency canon appears to be Miller v The Ship Resolution,30 which involved an ordinance of the Continental Congress making recaptured prizes subject to condemnation only if Great Britain had held them for at least 24 hours.31 The Federal Court of Appeals for Prize Cases construed the ordinance to apply only to ‘a legal capture’ under the law of nations and not to a situation where the initial British capture had been unlawful.32 Perhaps the clearest articulation of the canon before The Charming Betsy case was New York Mayor James Duane’s famous decision in Rutgers v Waddington, a case argued for the defendants by Alexander Hamilton,33 which also provides clues about the origins of the canon. Mayor Duane had to construe New York’s 1783 Trespass Act, authorising owners whose property had been taken during the British occupation to bring suits for damages, a statute that Hamilton argued violatedthe law of nations.34 To avoid the conflict, Duane read the act not to apply during theperiodthat the defendants occupied the property under the direct authority of the British commander.35 ‘The repeal of the law of nations, or any interference with it, could not have been in contemplation, in our opinion, when the Legislature passed this statute; and we think ourselves bound to exempt that law from its operation.’36 Duane cited a number of reasons for this canon, including the principle that statutes should be interpreted to avoid unreasonable results and the presumption against implied repeals.37 Both were standard principles of statutory interpretation found in William Blackstone’s Commentaries on the Law of England.38 Duane expressly

Talbot (n 17) 43. See, eg, United States v Peters, 3 US (3 Dall) 121 (1795). 30 2 US (2 Dall) 1 (Fed Ct App 1781). 31 See G Hunt (ed) 19 Journal of the Continental Congress 1774–1789 (GPO 1912), 315 (An ordinance relative to the capture and condemnation of prizes). 32 Miller (n 30) 3–4. 33 Rutgers v Waddington (NY City Mayor’s Ct 1784), reprinted in Julius Goebel Jr (ed), 1 The Law Practice of Alexander Hamilton: Documents and Commentary (New York, Columbia University Press, 1964) 392. 34 Brief No 6, ibid, 368–73. 35 Rutgers (n 33) 419. 36 ibid, 417. 37 See ibid, 417–18. 38 See Sir William Blackstone, Commentaries on the Laws of England (Oxford, Clarendon Press, 1765–1769) vol 1, 87–92. 29

16 William S Dodge traced the reasonable principle to Blackstone.39 But the presumption against impliedrepeals is found in the Commentaries too,40 and Blackstone famously stated that ‘the law of nations … is here adopted in it’s full extent by the common law, and is held to be a part of the law of the land’,41 an understanding that would make the presumption against implied repeals relevant. Rutgers reveals the Charming Betsy canon as an application of familiar English rules of statutory interpretation to the question of conflicts between statutes and international law. In some ways, The Charming Betsy is an odd case after which to name this canon of statutory interpretation. In contrast to Miller, Rutgers, and Talbot, the canon did no work in The Charming Betsy, which Chief Justice Marshall resolved on the ground that under US domestic law a US citizen could acquire commercial privileges in another country exempting him from the Nonintercourse Act.42 The Supreme Court would rely on The Charming Betsy during the nineteenth century not for this canon of construction but rather for the various points of prize law that the case had actually decided—whether a US citizen with a foreign domicile was subject to the Nonintercourse Acts,43 whether arming a merchant vessel changed its character,44 and whether probable cause for a seizure existed.45 The Court also cited the decision for certain procedural questions of admiralty law.46 In fact, the Supreme Court did not begin to cite The Charming Betsy for the canon of consistency with international law until the middle of the twentieth century.47 One suspects that The Charming Betsy came to be associated with the consistency canon simply because its articulation of the rule is clearer and more concise than that found in any other decision of the Supreme Court.

39 See Rutgers (n 33) 415 (‘[T]his is the language of Blackstone in his celebrated commentaries’); see also Blackstone, Commentaries (n 38), 91 (‘[W]here some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament’). 40 See Blackstone (n 38) 89, who states that a later law repeals an earlier one ‘only when the latter statute is couched in negative terms, or by its matter necessarily implies a negative’). 41 ibid, vol 4, 67. 42 See The Charming Betsy (n 1) 120; see also nn14–16 above and accompanying text. 43 See The Mary and Susan, 14 US (1 Wheat) 46 (1816), 55 nf; Maley v Shattuck, 7 US (3 Cranch) 458 (1806), 488–89. 44 See The Panama, 176 US 535 (1900), 546–47. 45 See Sands v Knox, 7 US (3 Cranch) 499 (1806), 503; Maley (n 43) 489–90. 46 See The Scotland, 105 US 24 (1881), 36 (proper rate of interest); Manro v Almeida, 23 US (10 Wheat) 473 (1825), 486 (availability of in personam remedy for maritime torts). 47 See Laurtizen v Larsen, 345 US 571 (1953), 578. Justice Sutherland quoted The Charming Betsy in support of the consistency canon in an earlier dissenting opinion. See Cunnard SS Co v Mellon, 262 US 100 (1923), 132 (Judge Sutherland dissenting). Prior to this, when the Court found it necessary to articulate the consistency canon, it generally cited no case in support. See, eg, MacLeod v US, 229 US 416 (1913), 434 (‘The statute should be construed in the light of the purpose of the government to act within the limitation of the principles of international law, the observance of which is so essential to the peace and harmony of nations’). When construing a statute to be consistent with a treaty, the Court often cited its 1884 decision in Chew Heong, which said that a ‘court ought, if possible, to adopt that construction which recognized and saved rights secured by the treaty’. Chew Heong v United States, 112 US 536 (1884), 549; see, eg, Cook v United States, 288 US 102 (1933), 120; United States v Payne, 264 US 446 (1924), 449; Lem Moon Sing v United States, 158 US 538 (1895), 549.

The Charming Betsy and The Paquete Habana 17 But The Charming Betsy does reflect early American understandings of international law and its relationship to US domestic law. Consistent with Blackstone, early Americans understood that ‘the law of nations … is here adopted in it’s full extent by the common law, and is held to be a part of the law of the land’.48 In 1784, a Pennsylvania court convicted a French citizen of a common law offense for having violated the law of nations by assaulting a member of the French legation in Philadelphia.49 ‘[T]he law of Nations,’ wrote the Court in echo of Blackstone, ‘in its full extent, is part of the law of this State’.50 In setting up the federal courts under the new US Constitution, the First Congress assumed that violations of the law of nations could result in civil liability when it gave those courts jurisdiction ‘of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States’.51 The early Supreme Court regularly applied the law of nations as a rule of decision in admiralty cases.52 As Chief Justice Marshall would later write in The Nereide, ‘[t]ill … an act [of Congress] be passed, the Court is bound by the law of nations which is a part of the law of the land’.53 The status of the law of nations as part of the common law was one of the foundations of the Charming Betsy canon for, as we have seen, the canon rested, at least in part, on the presumption against implied repeals.54 Marshall’s famous statement in The Charming Betsy also assumed that Congress could override the law of nations if it chose to do so. Originally, Congress’s authority to supersede the law of nations depended on which category of the law of nations was involved.55 Just as early Americans looked to Blackstone to understand how international law fit into the common law, so they looked predominantly to the Swiss writer Emer de Vattel to understand the nature of international law

48 Blackstone (n 38) vol 4, 67; see also Heathfield v Chilton, (1767) 4 Burr 2015, 98 ER 50 (Judge Mansfield stating that ‘the law of nations … is part of the common law of England’); Triquet v Bath, (1764) 3 Burr 1478, 1481; 97 ER 936, 938 (KB 1764) (Judge Mansfield stating ‘[t]hat the law of nations, in its full extent was part of the law of England’). 49 Respublica v De Longchamps, 1 US (1 Dall) 111 (Pa Ct Oyer & Terminer 1784). 50 ibid, 116. In 1793, the federal government brought a number of common-law prosecutions for violating treaties and the unwritten law of nations with respect to US neutrality. See eg Henfield’s Case, 11 F Cas 1099 (CCD Pa 1783) (No 6,360). Although none of the prosecutions succeeded, they illustrate the assumption that the law of nations was part of the common law in the United States. Ultimately, the Supreme Court held that there was no federal common law of crimes, see United States v Hudson & Goodwin 11 (7 Cranch) US 32 (1812), 34, a holding the Court later extended without discussion to cases involving the law of nations. See United States v Coolidge, 14 US (10 Cranch) 415 (1816). 51 An Act to Establish the Judicial Courts of the United States (1789), ch 20, § 9, 1 Stat 72, 77; see Sosav Alvarez-Machain, 542 US 692 (2004), 714 (noting that Alien Tort Statute was passed on the assumption that ‘torts in violation of the law of nations would have been recognized within the common law of the time’). 52 See DL Sloss, MD Ramsey and WS Dodge, ‘International Law in the Supreme Court to 1860’ in DLSloss, MD Ramsey and WS Dodge (eds), International Law in the US Supreme Court: Continuity andChange (Cambridge, CUP, 2011) 23–25. 53 13 US (9 Cranch) 388, 423 (1815). 54 See nn 36–41 above and accompanying text. 55 For more detailed discussion, see WS Dodge, ‘Customary International Law, Congress and the Courts: Origins of the Later-in-Time Rule’ in PHF Bekker, R Dolzer and M Waibel (eds), M aking Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts (Cambridge, CUP, 2010) 531.

18 William S Dodge itself. Vattel divided the law of nations into four categories: (1) the necessary, (2) the voluntary, (3) the conventional, and (4) the customary. The necessary law of nations was based directly on natural law; it was immutable and binding, but only internally on the conscience of the sovereign.56 The voluntary law of nations was also based on natural law, but it created external rights and duties. It was not ‘voluntary’ in the modern sense, because nations were required to give their consent.57 The conventional law of nations consisted of treaties and was based on express consent.58 Finally, the customary law of nations consisted of state practice and was based on ‘tacit consent’,59 consent that a nation could withdraw if it no longer wished to follow such a particular rule.60 Vattel’s categorisation is obviously different from the modern understandings that international law consists only of treaties and customary international law based on state practice and that nations are not free to withdraw from an established rule of customary international law.61 Early American cases suggested that a statute could supersede only rules belonging to the customary law of nations.62 In Ware v Hylton, the US Supreme Court considered the validity of Virginia’s 1777 Act confiscating debts owed to British creditors, which was alleged to violate both the treaty of peace with Britain and the unwritten law of nations. Justice Chase’s overview of the law of nations clearly shows Vattel’s influence: The law of nations may be considered of three kinds, to wit, general, conventional, or customary. The first is universal, or established by the general consent of mankind, and binds all nations. The second is founded on express consent, and is not universal, and only binds those nations that have assented to it. The third is founded on tacit consent; and is only obligatory on those nations, who have adopted it.63

Vattel considered the rule against confiscating debts to be part of the customary law of nations,64 and that fact was critical to Chase’s conclusion that Virginia was free to violate it. Chase wrote that the rule against confiscating private debts ‘was

56 E de Vattel, The Law of Nations (CG Fenwick tr first published 1758, Carnegie Inst 1916) Intro §§ 7–9. 57 ibid, Intro §§ 21, 28; Book III §§ 188–92. 58 ibid, Intro § 24. 59 ibid, Intro § 26; Book III § 106. 60 ibid, Intro § 25. For further discussion of the right to withdraw from the customary law of nations, see CA Bradley and M Gulati, ‘Withdrawing from International Custom’ (2010) 120 Yale LJ 202, 216–18; WS Dodge, ‘Withdrawing from Customary International Law: Some Lessons from History’ (2010) 120 Yale LJ 169, 172–75. 61 See, eg, Restatement (Third) of Foreign Relations Law § 102 (1987) (listing sources of international law); ibid. § 102, cmt d (‘A state that enters the international system after a practice has ripened into a rule of international law is bound by that rule.’). 62 The original understanding also seems to have been that treaties were ‘beyond the lawful reach of legislation’. The Federalist No 64, at 394 (C Rossiter ed, 1961) (John Jay). For development of the so-called ‘later-in-time’ rule for treaties, see JT Parry, ‘Congress, the Supremacy Clause, and the Implementation of Treaties’ (2009) 32 Fordham Int’l LJ 1209; DF Vagts, ‘The United States and its Treaties: Observance and Breach’ (2001) 95 AJIL 313. 63 Ware v Hylton 3 US (3 Dall) 199, 227 (1796) (Judge Chase). Chase did not mention the necessary law of nations, presumably because it did not create external rights and duties, and he referred to Vattel’s voluntary law of nations as the ‘general’ law of nations. 64 Vattel, Law of Nations (n 56) Book III § 77.

The Charming Betsy and The Paquete Habana 19 not binding on the state of Virginia, because founded on custom only’.65 Justice Iredell similarly expressed ‘considerable doubt’ that the rule was binding on Virginia, ‘admitting the principle to prevail by custom only’.66 It is instructive to compare an earlier state court decision refusing to give effect to the same Virginia law. In Page v Pendleton, Chancellor George Wythe viewed the rule against confiscating debts as ‘depending … on the law of nature,’67 and on that basis, he concluded that ‘the legislature could not retract their consent to observe the preacepts of the law, and conform to the usages of nations’.68 Other early decisions involving conflicts between statutes and the law of nations similarly turned on whether a rule was part of the voluntary or customary law of nations.69 In sum, The Charming Betsy not only restated a common principle of statutory interpretation but also reflected American understandings of international law at the time. Those understandings would change significantly before The Paquete Habana reached the Supreme Court. III. THE CHANGING LANDSCAPE OF INTERNATIONAL LAW

American understandings of international law and its incorporation in the US legal system shifted during the nineteenth century. When The Charming Betsy was decided in 1804, most international law rules were based on natural law and did not depend on state consent to give them binding force. These natural law rules were supplemented by customary rules manifested in state practice and based on tacit consent, consent each nation was free to withdraw if it wished. Both sets of rules were part of the common law in the United States, at least unless superseded by statute, something that was certainly possible for rules based on state practice, but perhaps not for rules based on natural law. When The Paquete Habana was decided in 1900, by contrast, all customary international law rules were based on state practice and depended on consent for their binding force. The consent required, however, was no longer the consent of each nation but instead the consent of the community of nations, which meant that individual nations were no longer free to withdraw from particular rules of customary international law. Paradoxically, at the same time that American courts acknowledged that the United States could be bound internationally to rules without its consent, they also asserted that international law was not part of domestic law unless specifically adopted by the United States. In the most general terms, then, the landscape of international law in the United States shifted during the nineteenth century away from natural law towards positivism and away from monism towards dualism.

Ware (n 63) 227 (Judge Chase) (emphasis added). ibid 263 (Judge Iredell). 67 Wythe’s Rep 212 n(b) (Va Ch 1793). 68 ibid, 213. Wythe taught law to Thomas Jefferson and John Marshall, among others, signed the Declaration of Independence in 1776, and served as a delegate to the Constitutional Convention in 1787. 69 See Dodge, ‘Customary International Law’ (n 55) 536–44. 66

20 William S Dodge A. From Natural Law to Positivism By the time the United States was established, the law of nations had long been understood to consist of both natural and positive law.70 Some eighteenth-century authors emphasised natural law, and others positive law.71 Early Americans relied most heavily on Vattel, who divided the law of nations into four categories, two based on natural law and two on positive law.72 But natural law dominated Vattel’s treatise.73 Vattel’s system continued to influence American law into the nineteenth century.Justice Joseph Story’s circuit court decision in United States v The La Jeune Eugenie echoed Vattel’s voluntary, customary and conventional categories when he wrote that ‘the law of nations may be deduced, first, from the general principles of right and justice’, second, ‘in things indifferent or questionable from the customary observances of civilized nations’, and third, ‘from the conventional or positive law’.74 Story concluded that the African slave trade violated natural law.75 The first edition of Henry Wheaton’s Elements of International Law, which would become the most important American treatise on international law in the nineteenth century, similarly followed Vattel’s categorisation.76 But while the Supreme Court continued to look to Vattel for the substance of international law rules, it tended to ignore his theoretical system. In The Schooner Exchange v McFaddon, for example, Chief Justice Marshall treated foreign sovereign immunity, which Vattel certainly would have viewed as part of the voluntary law of nations based on natural law,77 as based on implied consent78 and thus defeasible.79 In other opinions, Marshall asserted that an act of Congress could superseded rules of prize law without regard to whether those rules were part of the voluntary or the customary law of nations.80 The Supreme Court took a 70 See, eg, H Grotius, De Jure Belli ac Pacis (FW Kelsey tr, first published 1646, Oxford, OUP, 1925) 9 (defining the law of nations as law ‘concerned with the mutual relations among states or rulers of states,whether derived from nature, or established by divine ordinances, or having its origin in custom and tacit agreement’). 71 For an overview, see ED Dickinson, ‘Changing Concepts and the Doctrine of Incorporation’ (1932) 26 AJIL 239, 244–53. 72 See nn 56–60 above and accompanying text. 73 Vattel titled his work The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Sovereigns and wrote in his preface that the necessary and voluntary law of nations ‘will form the principal subject of my work’. Vattel (n 56) Preface, 11a. In Vattel’s view, the customary law of nations was restricted to questions on which natural law was ‘Indifferent’, Intro. § 9, and he even doubted that it belonged ‘within a systematic treatise on the Law of Nations’, Intro § 25. For further discussion, see Dodge, ‘Withdrawing from Customary International Law’ (n 60) 172–75. 74 United States v The La Jeune Eugenie 26 F Cas 832 (CCD Mass) (No 15,551) (1822), 846. 75 ibid (‘It is repugnant to the great principles of Christian duty, the dictates of natural religion, the obligations of good faith and morality, and the eternal maxims of social justice.’). 76 See H Wheaton, Elements of International Law (Philadelphia, Carey, Lea & Blanchard, 1836) § 14. 77 Vattel (n 56) Book III §§ 92, 108. 78 See The Schooner Exchange v McFaddon 11 US (7 Cranch) 116 (1812), 136 (‘All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself.’). 79 ibid 146 (‘Without doubt, the sovereign of the place is capable of destroying this implication.’). 80 See The Nereide 13 US (9 Cranch) 388 (1815), 423 (‘Till such an act be passed, the Court is bound by the law of nations which is a part of the law of the land’); Thirty Hogsheads of Sugar v Boyle 13 US

The Charming Betsy and The Paquete Habana 21 istinctivelypositivist view of the law of nations in The Antelope. Addressing the d same question of whether the African slave trade violated the law of nations that Justice Story had earlier addressed in The La Jeune Eugenie, Chief Justice Marshall wrote ‘[w]hatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part’.81 By this ‘test of international law,’ Marshall concluded, the question ‘is decided in favour of the legality of the trade’.82 While some nineteenth century treatises continued to emphasise natural law as the basis of international law,83 the trend was towards positivism. Wheaton, who had adopted Vattel’s categories of the law of nations in the first, 1836 edition of his famous treatise, criticised that categorisation in the 1846 edition and suggested that the natural law of nations ‘may more properly be called international morality’.84 Two posthumous editions, supposedly based on changes made before Wheaton’s death, omitted natural law rules deduced by reason as one of the sources of international law.85 Richard Wildman asserted that ‘[t]he law of nature forms no part of international law’,86 while William Hall asserted that moral obligations could become legally binding only if ‘received as positive law by the body of states’.87 Just after the turn of the twentieth century, Lassa Oppenheim would assert that international law, like all law, was based on ‘the common sense of the community’.88 Although the US Supreme Court sometimes mixed natural and positive idioms when discussing international law,89 by 1872 a positivist approach had clearly prevailed. In The Scotia, a maritime case whose language The Paquete Habana would later quote, Justice Strong wrote: ‘Like all the laws of nations, [the law of the sea] rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct.’90 (9 Cranch) 191 (1815), 198 (‘[British prize law] continued to be our prize law, so far as it was adapted to our circumstances and was not varied by the power which was capable of changing it’). In 1839, Chief Justice Roger Taney would use the phrase ‘voluntary law of nations’ to refer not to binding rules based on natural law but rather to discretionary acts of comity. See Bank of Augusta v Earle 38 US 519 (1839), 589. On the history of international comity in American law, see WS Dodge, ‘International Comity in American Law’ (2015) 115 Colum L Rev 2071, 2084–98. 81

The Antelope, 23 US (10 Wheat) 66 (1825), 121.

82 ibid.

83 See, eg, Sir R Phillimore, Commentaries upon International Law (London, T & JW Johnson, 1854) vol 1, 56 (‘The Primary Source … of International Jurisprudence is Divine Law’); HW Halleck, International Law (San Francisco, HH Bancroft & Co, 1861) Ch 2, § 6 (quoting Phillimore). 84 H Wheaton, Elements of International Law, 3rd edn (Philadephia, Lea and Blanchard, 1846) § 15. 85 See H Wheaton, Elements of International Law, 6th edn (Boston, Little, Brown & Co, 1855) § 12; H Wheaton, Elements of International Law, 8th edn § 15 (Boston, Little, Brown & Co, 1866). For discussion see Dodge, ‘Withdrawing from Customary International Law’ (n 60) 180–81. 86 R Wildman, Institutes of International Law, vol 2 (London, William Benning & Co, 1849). 87 WE Hall, International Law, vol 4 (Oxford, Clarendon Press, 1880). 88 L Oppenheim, International Law: A Treatise (London, Longmans, Green & Co, 1905) § 4. 89 See, eg, The Prize Cases 67 US 635 (1863), 670 (‘The law of nations is also called the law of nature; it is founded on the common consent as well as the common sense of the world’). For discussion of nineteenth-century cases, see DJ Bederman, ‘Customary International Law in the Supreme Court, 1861–1900’ in Sloss, Ramsey and Dodge, ‘International Law’ (n 52) 92–100. 90 The Scotia, 81 US 170 (1872), 187.

22 William S Dodge B. From Individual to Common Consent In Vattel’s system, nations were bound by the voluntary law of nations based on natural law but were free to withdraw their consent from the customary law of nations based on state practice.91 The shift from natural law to positivism raised the question whether nations were now free to withdraw their consent from all rules of international law. Wheaton seems to have drawn that conclusion. In his 1845 volume on the history of international law, Wheaton asserted that all rules of ambassadorial privileges ‘may be disregarded by any state which chooses to incur the risk of retaliation or hostility’.92 This position was repeated in the two editions of the Elements treatise published after Wheaton’s death.93 But other nineteenth-century writers asserted that international law rested not on the individual consent of each nation but on the common consent of the community of nations. Wildman wrote that ‘[a]s the custom of a people forms part of their municipal law, and is binding upon all, so the custom of nations is binding on each’94 and he denied that any nation could withdraw from customs ‘established by the general practice of nations’.95 Other writers affirmed that customary international law could be based ‘general consent’96 and expressly denied that individual nations could withdraw from such rules.97 In 1905, Oppenheim would summarise the view that had prevailed by the end of the nineteenth century. ‘Common consent’ meant the consent of ‘an overwhelming majority’,98 and it was ‘not necessary to prove for every single rule of International Law that every single member of the Family of Nations consented to it’.99 Thus, ‘no State which is a member of the Family of Nations can at some time or another declare that it will in future no long submit to a certain recognized rule of the Law of Nations’, which could ‘be altered by common consent only’.100 This shift from individual to common consent found expression, again, in The Scotia. Not only did the US Supreme Court emphasise that the law of nations ‘rests upon the common consent of civilized communities’,101 it pointed out repeatedly that the maritime regulations in question had become binding despite less than universal adherence.102 The fact that the two nations whose ships were involved in the collision, Britain and the United States, had adopted the same regulations was not dispositive, for ‘no statute of one or two nations can create obligations for the world’.103 It was ‘common consent’ that counted. 91

See nn 57–60 and accompanying text. H Wheaton, History of the Law of Nations in Europe and America from the Earliest Times to the Treaty of Washington 1842 (New York, Gould, Banks & Co, 1845) 95–96. 93 Dodge, ‘Withdrawing from Customary International Law’ (n 60) 181–82. 94 Wildman, Institutes (n 86) 29. 95 ibid, 33. 96 Hall, International Law (n 87) 4. 97 Halleck, International Law (n 83) ch 2, § 9. 98 Oppenheim, International Law (n 88) § 11. 99 ibid, § 12. 100 ibid. 101 The Scotia (n 90) 187 102 ibid, 186 (‘nearly all’); ibid, 187 (‘almost every’); ibid, 188 (‘almost all’). 103 ibid, 187. 92

The Charming Betsy and The Paquete Habana 23 C. From Monism to Dualism At the beginning of the nineteenth century, Americans assumed that international law was automatically part of their law unless it had been validly superseded by statute.104 Chief Justice Marshall captured this view in The Nereide when he wrote: ‘Till such an act be passed, the Court is bound by the law of nations which is a part of the law of the land’.105 By the end of the nineteenth century, the presumption had been reversed— internationallaw was understood to be part of American law only to the extent it had been adopted by the United States.106 Writing in an 1875 maritime case, The Lottawanna, Justice Joseph Bradley said: [I]t is hardly necessary to argue that the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. In this respect it is like international law or the laws of war, which have the effect of law in no country any further than they are accepted and received as such.107

In most cases, reversal of the presumption made no difference because international law could be adopted not only by legislatures but also by courts.108 The adoption theory would not, therefore, prevent a court from applying rules of international law in appropriate cases, though it might change the way in which the court characterised what it was doing. But the Court’s new theory did make a difference in cases where new international law came into conflict with existing judicial p recedent, which was precisely the question in The Lottawanna. Libellants sought to o verturn an old Supreme Court decision denying the validity of their liens109 on the ground that maritime law now recognised the validity of those liens, but the Court refused to do so. An existing precedent ‘ought not to be overruled except for very

104

See nn 48–69 and accompanying text. The Nereide, 13 US (9 Cranch) 388 (1815), 423. In another case, the Supreme Court specifically rejected the argument that international law applied only if ‘the municipal law of the place has incorporated the international law as a part of itself’ Rhode Island v Massachusetts, 37 US 657 (1838), 675 (argument of counsel). Despite the absence of legislation incorporating international law, the Court declared that it would decide the interstate border dispute ‘according to the law of nations’, ibid, 749. 106 The shift may have been reinforced by parallel developments with respect to treaties. In a series of cases during the 1880s, the Supreme Court emphasised that treaties operated primarily on the international plane and that their domestic effect was subject to the control of Congress. See The Chinese Exclusion Case, 130 US 581 (1889), 602; Whitney v Robertson, 124 US 190 (1888), 194; The Head Money Cases, 112 US 580 (1884), 598. 107 The Lottawanna, 88 US 558 (1875), 572. The court would repeat this assertion in a series of maritime cases over the next 25 years, including one authored by Justice Horace Gray, who would write The Paquete Habana. See Liverpool & GW Steam Co v Phenix Ins Co, 129 US 397 (1889), 444 (Gray, J) (‘The general maritime law is in force in this country, or in any other, so far only as it has been adopted by the laws or usages thereof’). The notion that international law had to be adopted in order to become part of domestic law does not seem to have been confined to the United States. See eg Regina v Keyn (1876) 2 Ex D 63, 202–03 (Cockburn, CJ) (‘To be binding, [international] law must have received the assent of the nations who are to be bound by it’). 108 See The Lottawanna (n 107) 571 (stating that a court might adopt a new rule of maritime law ‘to preserve harmony and logical consistency in the general system’); see also The John G Stevens, 170 US 113 (1898), 126–27 (‘the general maritime law is in force in this country, or in any other, so far only as administered in its courts or adopted by its own laws and usages’). 109 See The General Smith, 17 US (4 Wheat) 438 (1819). 105

24 William S Dodge cogent reasons,’110 the Court reasoned, and a change in the practices of other countries was not ‘sufficient ground’ to do so.111 It was probably cases like The Lottawanna that the Supreme Court had in mind when it referred in The Paquete Habana to international law being displaced by a ‘controlling … judicial decision’.112 IV. THE PAQUETE HABANA

The Paquete Habana is known today both for its statement that ‘[i]nternational law is part of our law’ and for its suggestion that international law might be superseded asa rule of decision by a ‘controlling executive or legislative act or judicial decision’.113 The former has been called the Supreme Court’s ‘classic utterance’ on the topic of incorporation,114 while the later has been disparaged as an ‘opaque, confused, and confusing dictum’.115 As we have seen, both the incorporation of international law into US law and the possibility that domestic law might trump international law have a long history and are reflected in The Charming Betsy among other decisions. The significance of The Paquete Habana lies not in the originality of its statements but in the way those statements reflected changes in the understanding of international law and incorporation during the nineteenth century. A. The Facts On 25 April 1898, the United States declared war on Spain in support of Cuba’s independence.116 The declaration was retroactive to 21 April, legitimising a blockade of Cuba’s north coast that the United States had established on 21 April and proclaimed the following day. President McKinley’s 22 April proclamation stated that the United States would maintain the blockade ‘in pursuance of the laws of the United States and the law of nations applicable to such cases’.117

110

The Lottawanna (n 107) 571. 578; see also 576 (‘To ascertain, therefore, what the maritime law of this country is, it is not enough to read the French, German, Italian, and other foreign works on the subject, or the codes which they have framed; but we must have regard to our own legal history, constitution, legislation, usages, and adjudications as well’). 112 The Paquete Habana (n 2) 700; see nn 161–64 below and accompanying text. 113 ibid. 114 MW Janis, An Introduction to International Law, 4th edn (Aspen, Aspen Publishers, 2003) 103; see also MD Ramsey, The Constitution’s Text in Foreign Affairs (Boston, Harvard University Press, 2007) 342 (noting that ‘the case has become pivotal, almost talismanic, in modern debates over the relationship between international law and constitutional law’). 115 L Henkin, Foreign Affairs and the United States Constitution, 2nd edn (Oxford, Clarendon Press, 1996) 235. 116 Act of April 25, 1898, ch 189, 30 Stat 364 (1898). For more detailed discussions of the facts of The Paquete Habana, see WS Dodge, ‘The Paquete Habana: Customary International Law as Part of Our Law’ in JE Noyes, LA Dickinson and MW Janis (eds), International Law Stories (New York, Foundation Press, 2007) 129; SW Stucky, ‘The Paquete Habana: A Case History in the Development of International Law’ (1985) 15 U Balt L Rev 1. 117 Proclamation No 6, 30 Stat 1769 (1898). 111 ibid,

The Charming Betsy and The Paquete Habana 25 He followed on 26 April with another proclamation on the capture of prizes, stating that the ‘war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice’.118 On 28 April, US Admiral William T Sampson reported that a large number of fishing vessels were attempting to enter Havana harbour. Because they were manned by ‘excellent seamen’ who might be useful to Spain, Sampson recommended that these vessels be captured and their crews detained.119 Secretary of the Navy John Davis Long replied on 30 April, directing that ‘Spanish fishing vessels attempting to violate blockade are subject, with crew, to capture, and any such vessel or crew considered likely to aid enemy may be detained’.120 The Paquete Habana was a 43-foot sloop with a crew of three. A US gunboat captured her on 25 April, with a cargo of fresh fish, and took her to Key West, Florida where she and her cargo were condemned as prize of war and sold for $490.121 Her case was one of many in the lower courts involving fishing vessels.122 And the Supreme Court’s decision in this case would be just one of nine prize decisions, involving a range of issues, which the Court would hand down between 11 December 1899 and 14 May 1900123 in its last, great elaboration of prize law.124 B. The Supreme Court’s Decision Justice Horace Gray delivered the Supreme Court’s opinion on 8 January 1900, holding, by a vote of six to three, that coastal fishing vessels were exempt from capture under international law.125 Justice Gray traced the rule as far back as 1403, to an order by King Henry IV of England implementing a treaty with France.126 He found some interruption in state practice in 1798, when an English order had expressly directed the seizure of French fishing boats and the great English admiralty judge Sir William Scott had characterised the rule against capturing fishing vessels as one ‘of comity only’.127 But Gray found that international law had evolved 118

Proclamation No 8, 30 Stat 1770–71 (1898). The Paquete Habana (n 2) 712–13 (quoting Navy Report Appendix, 178). ibid, 713 (quoting Navy Report Appendix, 178). 121 ibid, 678–79. 122 The appeal in The Paquete Habana was argued together with the appeal in The Lola. See ibid, 678. Claimants and the United States stipulated that the decisions in these cases would be dispositive of 10 other cases involving fishing vessels. Dodge, ‘The Paquete Habana’ (n 116) 132 fn 25. 123 The others include: The Pedro, 175 US 354 (1899), The Guido, 175 US 382 (1899); The Buena Ventura, 175 US 384 (1899); The Newfoundland, 176 US 97 (1900); The Adula, 176 US 361 (1900); The Panama, 176 US 535 (1900); The Benito Estenger, 176 US 568 (1900); and The Carlos F Roses, 177 US 655 (1900). For a contemporary analysis of the prize cases by the attorney who served as counsel for the United States, see HM Holt, ‘Recent Development and Tendency of the Law of Prize’ (1903) 12 Yale LJ 306. 124 See DJ Bederman, ‘The Feigned Demise of Prize’ (1995) 9 Emory J Int’l L 31, 37–38 (noting decline of prize cases in US courts). 125 The Paquete Habana (n 2) 686. 126 ibid. 127 The Young Jacob and Johanna (1798) 1 C Rob 20, 165 ER 81. On Scott’s influence as a judge, see HJ Bourguignon, Sir William Scott, Lord Stowell: Judge of the High Court of Admiralty, 1789–1828 (Cambridge, CUP, 1987). 119 120

26 William S Dodge since then: ‘the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law’.128 Gray cited nineteenth-century state practice during the Napoleonic Wars, the Mexican–American War of 1848, the Crimean War of 1854, the Franco–Austrian War of 1859, the Franco–Prussian War of 1870, and the Sino–Japanese War of 1894.129 Most problematic was the Crimean War, when England had destroyed many Russian fishing boats and storehouses, but Gray distinguished them as large businesses supplying the Russian military.130 The paragraph for which The Paquete Habana is famous came next: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.131

In large part, this paragraph simply repeated what Gray had written five years earlier in Hilton v Guyot, a decision on the enforcement of foreign judgments that he cited in support.132 The Paquete Habana used this paragraph to introduce the 18 scholarly works that Gray invoked in further support of the international law rule.133 Finally, Justice Gray turned to consider the policy of the US Government during the war with Spain, which he found to be ‘quite in accord with the rule of international law, now generally recognized by civilized nations, in regard to coast fishing vessels’.134 Gray quoted President McKinley’s proclamations directing that the blockade should be conducted in accordance with the law of nations.135 He read Admiral Sampson’s report as evidence that he was ‘not authorized, without express order, to arrest coast fishermen peaceably pursuing their calling’, and he read Secretary Long’s answer as indicating that Sampson should not seize such vessels ‘so long as they neither attempted to violate the blockade, nor were considered likely to aid the enemy’.136 Chief Justice Fuller dissented. He would have followed Sir William Scott’s decision in The Young Jacob and Johanna that the rule against capturing fishing vessels was

128

The Paquete Habana (n 2) 694. See ibid, 694–700. 130 See ibid, 699–700. 131 ibid, 700. 132 See Hilton v Guyot, 159 US 113 (1895), 163. 133 The Paquete Habana (n 2) 700–08. 134 ibid, 712. 135 See ibid; see also nn 117–18 above and accompanying text. 136 ibid, 713. Gray’s last point was disingenuous because fishing vessels could not have returned to port without violating the blockade. 129

The Charming Betsy and The Paquete Habana 27 one ‘of comity only’.137 But even if the rule were part of international law, Fuller maintained that the President was not bound by it. Quoting Chief Justice Marshall’s opinion in Brown v United States, Fuller asserted that international law ‘is a guide which the sovereign follows or abandons at his will’.138 Thus, Fuller concluded ‘that exemption from the rigors of war is in the control of the Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended’.139 On remand, a commissioner assessed damages for the seizure of The Paquete Habana and her cargo at $4,500,140 which the district court ordered the US Government to pay rather than the captors.141 The United States appealed to the Supreme Court, which held that the government should indeed be liable because it had ratified the captures, but that the damages were excessive.142 There is no record of the amount ultimately paid.143 C. The Significance of the Decision The Paquete Habana was quickly hailed as a ‘remarkable opinion’ that settled the propositions ‘that international law is law; that it is part of our municipal law; that our courts take judicial notice of it as such’.144 In contrast to The Charming Betsy, the Supreme Court began to cite Justice Gray’s opinion consistently for the proposition that ‘International law is part of our law’.145 Of course, the Court could as easily have cited an older opinion like The Nereide for the same proposition.146 Sometimes it did, right alongside The Paquete Habana.147 On the surface, Gray’s opinion looked like a continuation of early American views.

137

ibid, 719 (Fuller CJ, dissenting) (quoting The Young Jacob and Johanna (n 127) 81). ibid, 715 (quoting Brown v United States, 12 US (8 Cranch) 110 (1814), 128). 139 ibid, 720. 140 The Paquete Habana, 189 US 453 (1903), 467. 141 ibid, 464. 142 ibid, 466–67. 143 Dodge, ‘The Paquete Habana’ (n 116) 157. 144 JB Scott, ‘The Legal Nature of International Law’ (1907) 1 AJIL 831, 859–60. Scott was writing in the first volume of the American Journal of International Law, of which he was the editor. In the same volume, John Bassett Moore praised the opinion as the ‘clearest and most precise application’ of the principle that international law evolves through ‘the general and gradual transformation of international opinion and practice’. JB Moore, ‘International Law: Its Present and Future’ (1907) 1 AJIL 11, 11. Other nations followed the rule that coastal fishing vessels were exempt from capture under international law, which was incorporated in Art 3 of Hague Convention XI. But the rule soon became obsolete, as mines and submarines made coastal blockades too dangerous. See Dodge, ‘The Paquete Habana’ (n 116) 157. 145 Kansas v Colorado, 206 US 46 (1907), 97 (quoting The Paquete Habana (n 2) 700); see also Sosa v Alvarez-Machain, 542 US 692 (2004), 729–30; First Nat’l City Bank v Banco Para El Comercio Exterior de Cuba, 462 US 611 (1983), 623; First Nat’l City Bank v Banco Nacional de Cuba, 406 US 759 (1972), 763; Banco Nacional de Cuba v Sabbatino, 376 US 398 (1964), 423; Skiriotes v Florida, 313 US 69 (1941), 72–73. 146 See The Nereide, 13 US (9 Cranch) 388 (1815), 423 (‘the Court is bound by the law of nations which is a part of the law of the land’). 147 See Sosa (n 145) 730; Sabbatino (n 145) 423. 138

28 William S Dodge But in fact, The Paquete Habana reflected the shifts in American understandings of international law and its incorporation that had occurred during the nineteenth century. At the start of the nineteenth century, Americans understood the u nwritten law of nations to be based primarily on natural law, supplemented on indifferent matters by state practice. At the close of the nineteenth century, the American approach to customary international law was thoroughly positivist.148 So when The Paquete Habana went looking for international law to govern the capture of fishing vessels, it turned to ‘the customs and usages of civilized nations’.149 And while the opinion also looked to treatise writers, it did so not for deductions from natural law but for treatments of state practice—in Gray’s words, ‘not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is’.150 Another shift during the nineteenth century concerned the consent requirement forcustomary international law, which changed from individual consent that nationswere free to withdraw to the common consent of nations that created universal obligations.151 Like The Scotia, which Justice Gray quoted at length, The Paquete Habana asserted that the law of nations ‘rests upon the common consent of civilized communities’.152 When usages of nations became ‘generally accepted’, they created rules of ‘universal obligation’.153 Finally, the American understanding of incorporation changed during the nineteenth century, away from a view that customary international law was part of domestic law unless displaced towards a view that customary international law was not part of domestic law unless adopted.154 At first glance, The Paquete Habana seemed to ignore that shift when it stated that ‘[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination’.155 The best way to square this statement with the adoption theory is to recall that courts could adopt international law as part of domestic law too,156 which is what Justice Gray effectively did with the international law rule on fishing vessels. But the late-nineteenth-century approach to incorporation also appears in The Paquete Habana’s statement that resort ‘to the customs and usages of civilized nations’ is necessary only ‘where there is no treaty and no controlling executive or legislative act or judicial decision’.157 The idea that a legislative act could displace customary international law in the US system was an old one. It was implicit in The Charming Betsy’s statement that

148

See nn 70–90 above and accompanying text. The Paquete Habana (n 2) 700, 686–700 (reviewing state practice from 1403 to 1894). 150 ibid, 700, 700-09 (reviewing treatises). 151 See nn 91–103 above and accompanying text. 152 The Paquete Habana (n 2) 711 (quoting The Scotia (n 90) 187). 153 ibid. 154 See nn 104–112 above and accompanying text. 155 The Paquete Habana (n 2) 700. 156 See n 108 above and accompanying text. 157 The Paquete Habana (n 2) 700. For reasons of space, I will not discuss the relationship of treaties to customary international law. 149

The Charming Betsy and The Paquete Habana 29 ‘an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains’158 and was explicit in The Nereide’s statement that ‘[t]ill such an act be passed, the Court is bound by the law of nations which is a part of the law of the land’.159 The Lottawanna also emphasised the legislature’s authority to supersede international law as a rule of decision.160 The influence of the adoption theory shows most clearly in The Paquete Habana’s reference to a ‘controlling … judicial decision’. Justice Gray likely had in mind cases like The Lottawanna itself, in which the Supreme Court had adhered to a prior precedent rather than following later developed international practice.161 He might also have been thinking of The Adula,162 one of the eight other prize cases argued around the same time as The Paquete Habana, in which counsel for the ship owners asked the Court to abandon past decisions concerning the conduct of blockades because of a subsequent change in international law. The Court refused, perhaps because the international law claim seemed weak, perhaps because the precedent seemed strong, or perhaps both.163 Justice Gray joined the dissent in The Adula, but the case showed that the question whether a judicial decision could prevail over a contrary rule of international law was a live one.164 It is The Paquete Habana’s reference to a ‘controlling executive … act’ that is most difficult to understand. The early American understanding seems to have been that the President was bound by the law of nations under his constitutional duty to ‘take Care that the Laws be faithfully executed’.165 When Chief Justice Marshall wrote in Brown v United States that the law of nations ‘is a guide which the sovereign follows or abandon’s at his will’166—the line Fuller quoted in his Paquete Habana dissent— he was referring not to the President alone but to the President and Congress acting together as sovereign. Even Justice Story, who took a more pro-executive stance in Brown than the Court, made it clear that the President could not violate interna-

158

The Charming Betsy (n 1) 118 (emphasis added). The Nereide (n 146) 423. 160 See The Lottawanna (n 107) 577 (‘If, within its proper scope, any change is desired in its rules, other than those of procedure, it must be made by the legislative department’). 161 See nn 106–11 above and accompanying text. 162 176 US 361 (1900). 163 ibid, 371 (‘We cannot change our rulings to conform to the opinions of foreign writers as to what they suppose to be the existing law upon the subject’). 164 The question continues to arise today in various contexts. See, eg, United States v Said, 798 F 3d 182 (4th Cir 2015) 189–90, which followed the modern definition of piracy under international law rather than 1820 Supreme Court decision); Trendex Trading Corp v Central Bank of Nigeria [1977] QB 529, 553–54 (Denning MR), which followed the restrictive theory of foreign sovereign immunity despite contrary precedents. For an argument that changes in international law provide special justification for overruling past precedents, see MP Van Alstine, ‘Stare Decisis and Foreign Affairs’ (2012) 61 Duke LJ 941. 165 US Const Art II, § 3. This was the view of both sides during the 1793 debate over President Washington’s neutrality prosecutions. See A Hamilton, ‘Letters of Pacificus, No 1’ (1793), in HC Syrett and JE Cooke (eds), 15 The Papers of Alexander Hamilton (New York, Columbia University Press. 1969) 33, 40 (‘The Executive is charged with the execution of all laws, the law of Nations as well as the Municipal law, which recognizes and adopts those laws’); J Madison, ‘Letters of Helvidius, No 2’ (1793) in TA Mason, RA Rutland and JK Sisson (eds), 15 The Papers of James Madison, 86 (Richmond, University of Virginia Press, 1985) (agreeing with Hamilton). 166 12 US (8 Cranch) 110 (1814), 128. 159

30 William S Dodge tional law: ‘he cannot lawfully transcend the rules of warfare established among civilized nations’.167 The Lottawanna and subsequent cases discussing the adoption of international law by the United States referred only to adoption by the legislature or the courts. Indeed, I have found no suggestion prior to The Paquete Habana that the President had authority to violate international law or to supersede it as a rule of decision for the courts.168 I have previously suggested that Justice Gray included executive acts in his list, along with legislative acts and judicial decisions, because in this case the executive’s policy supported his decision.169 President McKinley’s proclamations had stated that the United States would follow the law nations in conducting the blockade,170 a fact that Gray took care to point out.171 Justice Gray may also have misread Brown v United States, like Chief Justice Fuller, as recognising presidential authority to depart from international law.172 But even if Gray did believe that the President could authorise the seizure of fishing boats in violation of international law, he clearly did not believe that members of the armed forces could do so without such authorisation. In evaluating The Paquete Habana’s dictum about controlling executive acts, one must always bear in mind that the Supreme Court held the United States government liable for violating customary international law.173 And that—by itself—is significant.

167

ibid, 153 (Judge Story dissenting). further discussion, see WS Dodge, ‘After Sosa: The Future of Customary International Law in the United States’ (2009) 17 Willamette J Int’l L & Dis Res 21, 34–38. Professor Ramsey agrees that the President cannot, consistent with the Constitution, violate international law. But Ramsey suggests that executive interpretations of international law might bind the courts. See Ramsey (n 114) 362–76. Whether or not this is best reading of the Constitution’s text and history, it is probably not what Justice Gray had in mind. The executive branch did not argue for deference to its interpretation of international law in The Paquete Habana. See Dodge, ‘The Paquete Habana’ (n 116) 135 fn 50. And Justice Gray seems to have contemplated the possibility that the President could have ordered a violation of international law. See n 171 below. 169 See Dodge, ‘The Paquete Habana’ (n 116) 156. 170 See nn 117–18 above and accompanying text. 171 See The Paquete Habana (n 2) 712–13. It is tempting to argue that an executive act could be ‘controlling’ only if it adopted international law and not if it sought to displace that law. But such an interpretation is contradicted by Justice Gray’s statement elsewhere in the opinion that fishing boats were exempt from capture if ‘no act of Congress or order of the President has expressly authorized [them] to be taken and confiscated,’ ibid, 711, a phrase suggesting that the President might have rejected rather than adopted the international law rule. 172 For further discussion of the readings of Brown in The Paquete Habana, see Dodge, ‘The Paquete Habana’ (n 116) 140–41, 154–55. 173 The ‘executive acts’ dictum lay dormant until the 1980s, when a lower court used it to justify the detention of Cuban refugees in violation of international law. See Garcia-Mir v Meese, 788 F 2d 1446 (11th Cir 1986) 1453–55. This decision provoked a flood of commentary. See Agora: May the President Violate Customary Law? (1986) 80 AJIL 913; Agora: May the President Violate Customary Law? (Continued) (1987) 81 AJIL 371. The Bush administration later invoked the dictum to argue that detainees held at Guantanamo Bay, Cuba were not entitled to the protections of customary international law. See Memorandum for Alberto Gonzales, Counsel to the President, and William J Haynes II, General Counsel of the Department of Defense, from Jay S Bybee, Assistant Attorney General (22 January 2002), 35. 168 For

The Charming Betsy and The Paquete Habana 31 V. CONCLUSION

Some cases change the course of international law or the place of international law in a domestic legal system. Neither of the cases reviewed in this chapter did so. The Charming Betsy was just one of many decisions in the late-eighteenth and earlynineteenth centuries to construe statutes as consistent with international law, and the case did not come to be closely associated with the consistency canon until the middle of the twentieth century. The Paquete Habana was just one of many Supreme Court prize decisions arising from the Spanish–American War. Apart from its reference to controlling executive acts, it broke no new doctrinal ground. To focus only on landmarks is to risk obscuring important shifts in the landscape. And when landmark decisions make superficially similar statements, one might conclude that nothing has changed in between. That is not true here. As this chapter has shown, American understandings of international law and its incorporation in the US legal system changed significantly during the nineteenth century. The Charming Betsy and The Paquete Habana are landmark cases not because they changed the course of international law in the United States but rather because they show—as landmarks often do—the contours of the ground beneath.

3 Mavrommatis Palestine Concessions (Greece v Great Britain) (1924–27) MICHAEL WAIBEL1

I. INTRODUCTION

HE MAVROMMATIS DISPUTE was about the fate of conflicting concessions for the supply of water and electricity and associated economic and political control over Palestine in the interwar period. Both water and e lectricity were essential to the aspirations of the Jewish people to create a homeland in this inhospitable part of the world. The control over water, in particular, has provoked considerable bloodshed in this region due to water scarcity,2 and remains a central theme of the contemporary Arab–Israeli conflict.3 The dispute about the concessions led to the three Mavrommatis Palestine Concessions4 cases before the PCIJ that are the focus of this chapter. As the sole dispute about the British Mandate in Palestine, these three cases provided a c atalyst for the PCIJ to address vital constitutional questions concerning the Mandate, including the legislative powers of the Government of Palestine,5 the conformity of such legislation with the British Mandate and the interaction of private law rights and public law from the vantage point of international law that also characterises many contemporary investment disputes.6 1

Thanks to Hannah Dixie and Henry Moore for outstanding research assistance. N Bethell, The Palestine triangle: the struggle for the Holy Land, 1935–48 (New York, Putnam, 1979); R El-Eini, Mandated Landscape: British Imperial Rule in Palestine, 1929–1948 (London, Routledge, 2006); AJ Sherman, Mandate days: British lives in Palestine, 1918–1948 (Liverpool, Johns Hopkins University Press, 2001); PL Hanna and American Council on Public Affairs, British policy in Palestine (1942) available at . 3 See generally E Benvenisti, Sharing transboundary resources: international law and optimal resource use (Cambridge, CUP, 2002). 4 Mavrommatis Palestine Concessions (Greece v United Kingdom) (1924) PCIJ Ser A No 2; (1925) PCIJ Ser A No 5; (1927) Ser A No 10. 5 According to the then Chief Justice of Palestine, ‘[t]he Mandate was a sort of constitution, conferring limited powers of government’, TW Haycraft, ‘Palestine under the Mandate’ (1928) 15 Journal of the Central Asian Society 167, 170. 6 N Bentwich, ‘The Jurisdiction of the International Court of Justice over Concessions in a Mandated Territory’ (1928) 44 LQR 450; M Burgis, ‘Transforming (Private) Rights through (Public) International Law: Readings on a “Strange and Painful Odyssey” in the PCIJ Mavrommatis Case’ (2011) 24 LJIL 873; H Lauterpacht, The Function of Law in the International Community (Oxford, Clarendon Press, 1933) 164. 2

34 Michael Waibel II. THE HISTORICAL CONTEXT

The Mavrommatis dispute arose in the aftermath of World War I in a territory that was then known as Palestine, and became the State of Israel in 1948. It was the result of a state succession resulting from the dissolution of the Ottoman Empire and the temporary passing of the territory from Ottoman rule under a B ritish mandate in the interwar period. On 9 December 1917, Great Britain occupied Jerusalem of the Ottoman Empire. Following the Treaty of Sèvres of 1920,7 Palestine became a British Mandate.8 Certain territories of defeated powers in World War I became mandates, assigned to particular states and with oversight by the League of Nations.9 On 2 November 1917, the Balfour Declaration endorsed the creation of a home for the Jewish people in Palestine.10 Great Britain’s Foreign Secretary, Arthur B alfour, pledged British support in a letter to Lord Walter Rothschild, a leading figure in the British Jewish community.11 The declaration marks the origins of Israel. On 24 July 1922, the League of Nations incorporated it into the British mandate.12 The British civilian administration for Palestine functioned similarly to crown colonies.13 The former sovereign (the Ottoman Empire) granted concessions to Mavrommatis, and the mandatory (Great Britain), after the Ottoman Empire’s dissolution, granted concessions to Rutenberg. The old concessionaire, Mavrommatis, was a Greek

7 Article 95 of the Treaty of Sèvres, 10 August 1920, provided for a mandate for Palestine: ‘The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on 2 November 1917 by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.’ 8 Mandate for the Administration of the Former Turkish Territory of Palestine, conferred upon his Britannic Majesty, confirmed and defined by the League of Nations, 24 July 1922. 9 Art 22 League of Nations Covenant; H Lauterpacht, ‘The Mandate under International Law in the Covenant of the League of Nations’ in H Lauterpacht and E Lauterpacht (eds), International Law (Cambridge, CUP, 1970) vol III, 29; JC Hales, ‘The Creation and Application of the Mandate System. (A Study in International Colonial Supervision)’ (1939) 25 Transactions of the Grotius Society 185. 10 It was preceded by Herbert Samuel’s Cabinet Memorandum on “The Future of Palestine” (January 1915). The memo argued that Palestine should become a British protectorate, with home rule in due course. This plan had as much to do with British imperialism as with Zionism. For the Arab Middle East, the peace settlements were the old nineteenth-century imperialism again, M MacMillan, Paris 1919: six months that changed the world, 1st US edn (New York, Random House, 2002) 381. Herbert Samuel later became High Commissioner for Palestine from 1920 to 1925. He formed a strong relationship with Rutenberg; see S Ronen, Current flow: the electrification of Palestine (Stanford, Stanford University Press, 2013) 44. 11 The Rothschilds also provided financial support for Rutenberg’s plan to electrify Palestine: N Ferguson, The House of Rothschild: The World’s Banker: 1849–1998 (New York, Penguin, 1998) vol II, 441–53. 12 Great Britain had been the occupying power since December 1917, and had already established a civilian government in 1920, TW Haycraft, ‘Palestine under the Mandate’ (1928) 15 Journal of the Central Asian Society 167, 170. 13 S Ronen, Current flow: the electrification of Palestine (Stanford, Stanford University Press, 2013) 14.

Mavrommatis Palestine Concessions 35 e ntrepreneur resident in the Ottoman Empire.14 The new concessionaire, Rutenberg, was a Soviet national of Jewish faith who played a major role in the establishment of the state of Israel. At a time of great geopolitical upheaval, the travails of Euripides Mavrommatis with the British authorities in London and Palestine, perhaps due to his nationality, resembled the wanderings of Odysseus.15 Perhaps Mavrommatis was simply on the wrong side of history, and Rutenberg a fortunate benefactor of Great Britain’s new commitment to Zionism: the Rutenberg concession, which granted extraordinary monopolistic rights to exploit … natural resources and to operate public utilities, was an important milestone in the politics of the economic policy, not only in the prestige it accorded to Zionist movement but also in the violent opposition it provoked.16

During Britain’s mandate over Palestine, relations and political and economic divisions between the Jews and Arabs steadily deteriorated,17 culminating in the 1947–48 Civil War that led to Israel’s independence. The extent to which Zionism and British policy with respect to the Mandate contributed to this deterioration is disputed. III. THE FACTS OF MAVROMMATIS

In 1914, shortly prior to the outbreak of the First World War, Mavrommatis, a Greek national and public works contractor resident in the Ottoman Empire, obtained from the Ottoman authorities two sets of concessions to undertake various public works in Palestine in the cities of Jerusalem, Jaffa, and Jordan. The first set of two concessions, provided under contracts dated 27 January 1914, allowed, first, the construction and working of a system of electric tramways and, second, the distribution of electric light and power and of drinking water in the city of Jerusalem. In August 1914, due to the outbreak of World War I, the parties postponed the execution of these concessions by mutual agreement until the restoration of peace.18 The second set of concessions concerned the city of Jaffa, similar in substance with the additional inclusion of the irrigation of the gardens of that city by means of the waters of the river El-Hodja.19 However, while these agreements had been converted into concessions on 28 January 1916, they were not confirmed in accordance with Ottoman law. The third set of concessions, relating to the irrigation of the Jordan valley, lacked any kind of definitive contract. The Ottoman Parliament, which had adjourned once the war began, had yet to approve this set.

14 Greek nationals and ethnic Greeks played a major role in the Ottoman economy in the early twentieth century; on Ottoman nationality, H Will ‘What Ottoman Nationality Was and Was Not’ 3 Journal of the Ottoman and Turkish Studies Association 2, 277–98. 15 Burgis, ‘Transforming (Private) Rights’ (n 6) 897, citing Mr H Purchase, Counsel for the Greece, First Speech, Part II, Speeches and Documents Read before the Court, Series C, No 7, 1925, 41. 16 BJ Smith, The Roots of Separatism in Palestine: British Economic Policy 1920–1929 (Syracuse, Syracuse University Press, 1993) 118. 17 Jews and Arabs clashed violently as early as 1921 and again in 1929. 18 R Uerpmann-Wittzack, ‘Mavrommatis Concessions Cases’ (2013) MPEPIL 1. 19 Mavrommatis Series A, No 2 (n 4) 8.

36 Michael Waibel After World War I, Mavrommatis obtained renewed promises of support from his earlier backers before submitting his pre-existing concessionary claims to the Palestine administration, which forwarded them to the Colonial Office.20 In September 1921, Britain granted two concessions for supplying and selling electricity throughout Palestine to Pinhas Rutenberg, a Soviet–Jewish engineer and businessman.21 Rutenberg’s concessions related to two schemes. The first, smaller scheme, estimated to cost Rutenberg £100,000,22 granted him exclusive rights to use the waters of the Auja Basin and to provide power, electric light and irrigation using any type of energy in the district of Jaffa.23 The second, larger scheme afforded him exclusive rights to exploit the waters of the Jordan River to allow a hydroelectric and irrigation scheme, on the condition that he form a company with subscribed capital of £1 million within two years.24 It further granted Rutenberg complete rights over the supply of electric power throughout Mandatory Palestine, save for Jerusalem itself. Britain turned to Zionism as Palestine was on the edge of an economic r enaissance.25 In the wake of the Balfour Declaration, references had begun to emerge in British policy regarding the need, as a matter of principle, to show preference to Zionist organisations in granting developmental concessions.26 Although Rutenberg acted of his own accord as a private entrepreneur, he was a fortunate beneficiary of preferential treatment in favour of the Zionist movement.27 The Rutenberg concessions represented ‘the most practical example of the policy of setting up a National Home for the Jews’28 and marked a milestone in Palestine economic policy.

20 Smith,

The Roots of Separatism in Palestine (n 16) 123. Naor, ‘An Electrifying Story’ (Haartez—Israel News, 25 January 2004) accessed 22 December 2016. Rutenberg founded the Palestine Electric Company. In 1961, it became the Israel Electric Corporation, of which the State of Israel owns 99.85% and which is Israel’s only integrated electricity company and one of its largest companies. In January 1926, Rutenberg became the first citizen of the new Palestine, Jewish Daily Bulletin, 11 January 1926, New York, Vo III, No 374, A1, . 22 Circa £4 million today (calculated using MeasuringWorth). 23 Smith (n 16) 119. 24 ibid. 25 ibid, 117. See also M Svirsky, Arab-Jewish Activism in Israel-Palestine (Farnham, Ashgate, 2012) 103. 26 ibid. Smith goes so far as to call the concession ‘nationalistic.’ See also: Svirsky, Arab-Jewish Activism (n 25) 56, for further discussion of the preferential treatment accorded to the Zionist movement, including the granting of monopolistic concessions to allow exploitation of natural resources and operation of public services and utilities, as well as a protectionist industrial policy comprising, inter alia, tax exemptions favouring Jewish industries. cf J Metzer, The Divided Economy of Mandatory Palestine (Cambridge, CUP, 1998) 177: ‘The sensitivities surrounding the delicate and always unsatisfactory—to one party or another—attempts by the government to abide by its dual obligation to the Zionist cause and the Arab case meant that any government move that could be interpreted as assisting one community (say, granting concessions to natural monopolies, devising schemes of protective tariffs, or any other area of public policy) was perceived, for that very reason, by the other community as harmful.’ 27 ibid. See also: M LeVine, ‘The Discourses of Development in Mandate Palestine’ (1995) 17 Arab Studies Quarterly (1–2) 103–04 for a possible explanation: ‘Because of British financial restraints, Zionist development discourse automatically had resonance with the British … It is clear, then, that the Mandatory not only viewed Jewish economic development as relieving them of their responsibility under the Mandate to develop the country, but moreover that the fulfilment of Zionist aims was the only way the Government could afford to rule the country’. 28 ibid, 118. See also: K Firro, The Druzes in the Jewish State: A Brief History (Boston, Brill, 1999) 145–46. 21 M

Mavrommatis Palestine Concessions 37 By their terms, the concessions afforded Rutenberg monopolistic rights that c onflicted with Mavrommatis’ existing concessions and gave him a high degree of control over the economic future of Palestine.29 In granting the concessions to Rutenberg, Great Britain sought to achieve several objectives, namely to promote Zionist development schemes, placate Arab opposition and weaken domestic criticism of its colonial policy in Palestine: The agreement between the British government and Rutenberg explicitly stated that the constitution of the projected company would need the approval of the high commissioner acting on the advice of the Zionist Organization. By emphasizing that the Rutenberg concession was fundamentally a Zionist project, British officials no doubt hoped to gain some political points. The Zionists would be grateful for the preferential treatment, the Arabs would recognize the material benefits from the Jewish National Home policy, and those opposing government policy in Britain would be convinced that practical achievements were being made in Palestine and that support of the Balfour Declaration was thereby justified.30

In 1922, Article 11 of the Mandate for Palestine officially referenced the importance of Jewish participation in the development of the Jewish homeland.31 However, the Zionist Organisation considered the best way to further Jewish interests was to publicly distance itself from Rutenberg, agreeing to negotiate with the administration in secret.32 It downplayed any political affiliations between them, initially to assist in raising capital, and, later, due to ‘four years of strenuous opposition to the concession and little or no benefit to the Arab population’,33 which ultimately, and undesirably, rendered the Rutenberg concession ‘a symbol of Zionist aggression’.34

ibid, 117–19. ibid, 119. cf Metzer, Divided Economy (n 26) 183: ‘While I agree with Smith on the contribution of some British policies to Jewish–Arab economic separatism (largely enhanced by the attributes of Jewish economic activity), the claims that the prime beneficiaries of the tariffs in Mandatory Palestine were Jewish industrialists, and that these benefits were in any way consequential, are empirically unverified’. 31 The British Mandate for Palestine (Council of the League of Nations, 24 July 1922) Art 11: ‘The Administration of Palestine shall take all necessary measures to safeguard the interests of the community in connection with the development of the country, and, subject to any international obligations accepted by the Mandatory, shall have full power to provide for public ownership or control of any of the natural resources of the country or of the public works, services and utilities established or to be established therein. It shall introduce a land system appropriate to the needs of the country, having regard, among other things, to the desirability of promoting the close settlement and intensive cultivation of the land. ‘The Administration may arrange with the Jewish agency mentioned in Article 4 to construct or operate, upon fair and equitable terms, any public works, services and utilities, and to develop any of the natural resources of the country, in so far as these matters are not directly undertaken by the Administration. Any such arrangements shall provide that no profits distributed by such agency, directly or indirectly, shall exceed a reasonable rate of interest on the capital, and any further profits shall be utilised by it for the benefit of the country in a manner approved by the Administration.’ 32 Smith (n 16) 121. 33 ibid, 119. 34 ibid, 121. See also LeVine, ‘Discourses of Development’ (n 27) 108–09: The three most important concessions in Palestine—electricity, exploiting the mineral resources of the Dead Sea, and draining the Huleh—were all granted to the Zionists soon after the British occupation, and the electricity concession, known as the Rutenberg concession, was ‘singularly important’ so as to be subject to debate in Parliament. This concession, which provoked violent outbursts from the Arab population, gave the Jews a monopoly on constructing the biggest electrical station in Palestine with a free hand to use the power to equip Jewish settlements. Moreover, the company could expropriate any land it deemed necessary, while 30

38 Michael Waibel In 1921, the Palestine Zionist Executive authorised Rutenberg to answer uestions relating to the establishment of the Jewish National Home for the Zionist q Organisation.35 In public, however, Chaim Weizmann, the organisation’s president, expressly refuted such an idea. Instead, he professed the organisation’s only interest in these affairs to be its desire that the Rutenberg concessions ran successfully and without delay. He disclaimed any direct financial interest of the Zionist Organization. He also underlined that Rutenberg was not, nor had ever been, a nominee of the Zionist Organization.36 He described his own role as ‘merely that of a friendly intermediary between M Mavrommatis and Mr Rutenberg’.37 Before the PCIJ, the UK acknowledged that the Zionist Organization was ‘anxious to see put into operation a project which would bring fertility and prosperity to large areas of Palestine’,38 but made explicit that this ‘does not render Rutenberg their representative’.39 Mavrommatis, who had intended to resume work at the conclusion of the hostilities,40 protested vociferously on learning of Rutenberg’s conflicting concessions.41 In 1918, Mavrommatis submitted his concessionary claims to the Palestine administration. Yet the Colonial Office in London dragged its feet. It advised him to ‘come to an understanding with the Zionist organisation and with Mr Rutenberg’42 in order to obtain his collaboration in the carrying out of the projected works, yet he endeavoured to do so without success. Lengthy negotiations ensued, over a period of four years, between Great Britain and Mavrommatis. The British Government labelled him ‘slippery’,43 openly maligning Mavrommatis for his unrealistic demands for compensation regarding the expropriation of his concessions. They accused him of lacking any intention to carry out his electricity concession, alluding to his purported desire to simply make a considerable profit. Rutenberg ultimately called him a ‘franchise blackmailer’.44 When Mavrommatis realised that his claim in respect of Jaffa was futile, he focused his efforts on Jerusalem. Efforts to reach a compromise ultimately proved fruitless. Mavrommatis ‘sought assistance from every possible source in order to further his claim’,45 contacting the British press and Members of Parliament who were sympathetic to his cause. Finally, in 1924, Mavrommatis approached the Greek government to apply on his behalf to

no other body was permitted to distribute or sell electricity in Palestine. Thus, Arab groups were subsequently turned down for concessions to electrify Arab cities like Jaffa, and were basically forced by the British to get permission—almost never granted—from Jewish concessions to exploit their own resources. 35

ibid, 120. 27/309, Statement by Dr. Chaim Weizmann, President of the Zionist Organisation (5 February, 1925) 2. 37 ibid, 5. 38 Speech by Sir D Hogg, Counsel for Britain, Part II, Speeches Made and Documents Read Before the Court, Series C No 7, February 1925, 128. 39 ibid. 40 Burgis (n 6) 888. 41 Naor ‘An Electrifying Story’ (n 21). 42 Mavrommatis Series A, No 2 (n 4) 19. 43 CO 733/144/7, Government memorandum considering extension of the time of the concessions (October 1927). 44 Naor (n 21). 45 ibid. 36 TS

Mavrommatis Palestine Concessions 39 the Permanent Court of International Justice (PCIJ). The Greek government accepted to exercise diplomatic protection. Greece’s initial submissions were two-fold: first, the British government lacked the authority to grant the Rutenberg concessions and by doing so had infringed Mavrommatis’ rights; and, second, according to the Treaty of Lausanne, the British government had taken on responsibility for all of Turkey’s obligations, which included the concessions granted to Mavrommatis by the Ottoman authorities. IV. THE PROCEEDINGS AND JUDGMENTS IN MAVROMMATIS

A. Judgment No 2 (1924—Jurisdiction) The first Mavrommatis case concerned the jurisdiction of the Permanent Court. Greece’s application contended that Britain had failed to recognise the rights of Mavrommatis, a Greek subject, under contracts and agreements concluded by him with the Ottoman authorities, in regard to concessions for certain public works to be constructed in Palestine. Greece submitted the case to the Court under Article 26 of the Mandate for Palestine, which provided for the Permanent Court’s jurisdiction, as follows: The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations.46

Britain objected that the Court lacked jurisdiction over the dispute. By a narrow majority of seven to five, the Court on 30 August 1924 affirmed its jurisdiction over the Mavrommatis concessions, albeit only with respect to the Jerusalem concessions. Conversely, the Court found that the Jaffa concessions were outside its jurisdiction due to final approval from the Turkish government having taken place after 29 October 1914, the effective date for claiming a right of survival or succession under Protocol XII of the Treaty of Lausanne. As for the Jordan concessions, Greece abandoned any claim in this respect during the course of proceedings, conceding it was premised simply on a verbal agreement which lacked the requisite confirmation of a definitive contract. The judgment addresses three preconditions found in Article 26, namely: (1) the existence of the dispute; (2) the prior negotiation requirement; and (3) whether the dispute concerned ‘the interpretation or the application of a provision of the Mandate’. As neither its Statute nor the Rules contained any provision on preliminary objections, the Court first considered whether it had the inherent power to examine preliminary objections. The Court emphasised that it was ‘at liberty to adopt the principle which it considers best calculated to ensure the administration of justice,

British Mandate for Palestine (n 31) Art 26.

40 Michael Waibel most suited to procedure before an international tribunal and most in conformity with the fundamental principles of international law’.47 i. Was There a Dispute Between the Mandatory and Another Member of the League of Nations? Britain and Greece disagreed as to whether the dispute in issue was between states, or merely between a private individual and another state. Under Article 26, the Court’s jurisdiction is limited to inter-state disputes. The UK firmly rejected any contention that a dispute existed between governments.48 The dispute in question undoubtedly began as a private one, with the alleged infringement of the concessionary rights of Mavrommatis. However, in the eyes of the Court, it was irrelevant that the dispute had originated in an injury to a private individual. In the course of its judgment, the Court endorsed a liberal approach towards diplomatic protection. In a now-famous passage, the majority held: It is an elementary principle of international law that a State is entitled to protect its s ubjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. 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.49

This notion that a state is ‘asserting its own right’50 when it takes up a dispute of private origin on behalf of one of its citizens has become known as the ‘Mavrommatis fiction’ or the first (of three) Mavrommatis formulas. ii. Could the Dispute Be Settled by Negotiation? The Court dealt with the second condition of negotiations similarly efficiently. The UK contended that this prior negotiating requirement referred only to negotiations between two states;51 whereas Greece submitted that negotiations between Mavrommatis and Great Britain in 1923 satisfied this requirement. Great Britain contended that compliance with this second jurisdictional prerequisite was a matter of great importance, since ‘from the moment when there begin to be negotiations between the governments’,52 rather than simply between an individual and a government, ‘it is a question which will be honoured by new men’,53 applying ‘not the rule applicable to municipal matters in the particular country concerned, but the principles and standards of international law’.54 47 Mavrommatis Series, A No 2 (n 4) 16; H Lauterpacht, The Function of Law in the International Community (Oxford, OUP, 2011). 48 Speech by Sir C Hurst, Counsel for Britain, Part II, Speeches and Documents Read before the Court, Series C, No 5, 4 September 1924, 70. 49 Mavrommatis Series A No 2 (n 4) 12. 50 ibid. 51 Hurst (n 48) 71. 52 ibid, 72. 53 ibid. 54 ibid.

Mavrommatis Palestine Concessions 41 The Court found that there was no requiring that the Greek Government (as opposed to Mavrommatis) be involved in these negotiations. Rather, provided the individual on whose behalf the state was exercising diplomatic protection had previously made efforts to settle the dispute, this prerequisite for jurisdiction was met. The Court underscores the importance of flexibility.55 The majority held that when earlier negotiations had taken place between a private individual and a government, it is ‘incompatible with the flexibility which should characterize international relations’56 to require additional discussions. The Court conceded that new factors may enter into the diplomatic negotiations when the State enters a dispute, given that it does not act merely as a substitute claimant for its national.57 Rather, the state asserts its own, independent right, perhaps prompting new channels of negotiation. However, it held that when earlier diplomatic negotiations between the state’s national and another government had been unsuccessful and led to the involvement of the state’s government, such negotiations may render further negotiations on the question which gave rise to the dispute superfluous.58 iii. Did the Dispute Relate to the Interpretation or Application of the Mandate? The third requirement for jurisdiction proved the most contentious. This has been characterised as the ‘major hurdle standing in the way of the Permanent Court’s jurisdiction’59 and is widely considered ‘what makes the Mavrommatis case a significant example of international legal argument’.60 The Permanent Court was quick to acknowledge that its jurisdiction under Article 26 of the Mandate was ‘limited to certain categories of disputes, which are [objectively] determined according to a legal criterion’,61 here specifically those concerning the interpretation and application of the Mandate. This approach of the Court has been influential in international dispute settlement. International courts and tribunals do not decide hypothetical disputes; the dispute must have practical relevance. The ICJ defines a dispute as a ‘disagreement on a point of law or fact, a conflict of legal views or interests between two persons’.62 This is a flexible formulation, but a party cannot create a dispute merely by asserting that one exists, nor can states simply submit disputes to the Court ‘at their discretion’.63 In Mavrommatis, the question of whether any such dispute existed was thus pivotal. Mavrommatis alleged that his rights had been undermined by the British grant of concessions to Rutenberg in spite of a British obligation to respect pre-existing concessions. The question for the

Mavrommatis Series, Series A No 2 (n 4) 15.

56 ibid. 57 ibid. 58 ibid.

59 O Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (Cambridge, CUP, 2004) 193. 60 ibid. 61 Mavrommatis Series A No 2 (n 4) 16–17. 62 ibid, 11. 63 Spiermann, International Legal Argument (n 59) 196–97.

42 Michael Waibel Court was therefore whether the granting of concessions to Rutenberg violated the international obligations referenced in Article 11 of the Palestine Mandate.64 Both sides conceded that the Mavrommatis concessions themselves, granted prior to the outbreak of the war, lay outside the scope of this Article.65 The Court thus held that Article 11 applied only to the Mavrommatis case if two conditions were met. First, the Rutenberg concessions must have fallen within its scope, having been granted in exercise of the Mandatory’s full power to provide for public ownership or control of the natural resources of Palestine. Second, that grant must have violated Britain’s international obligations.66 Determining the meaning of ‘public ownership and control’ under Article 11 was thus crucial. Whereas the French understanding of contrôle encompassed ‘the right to grant concessions with a view to the development of the natural resources of the country or of public works, services and utilities, as also the right to annul or cancel existing concessions’,67 the English version had a more restricted meaning. Eventually, the Court decided the term public control referred to ‘the various methods whereby the public administration may take over, or dictate the policy of, undertakings not publicly owned’.68 In drawing this conclusion, the Court considered itself ‘bound to adopt the more limited interpretation which can be made to harmonise with both versions … in accordance with the common intention of the Parties’.69 While some minority judges sided with Great Britain in considering that public control related ‘only to the governmental ownership or operation of public utilities, but not to grant of franchises to private concessionaires’,70 the majority rejected the notion that all activities not carried out by the government were private. The expression ‘public control’ in the English language ‘covered any exercise of public authority by which private enterprise was subordinated’,71 thus extending beyond cases in which the Government takes over and itself directs an undertaking. The expression is also used to indicate certain forms of state activity regarding undertakings of a private character. It may mean measures of economic policy consisting in subordinating private enterprise to public authority. The Court held that this ‘wider meaning of the English expression appears to be the only one which does not nullify the expression contrôle public in the French version’.72 The Rutenberg concessions were public utilities, as the Government of Palestine supervised Rutenberg’s enterprise and the companies were to be created in agreement with the Jewish Agency.73 This character met the third jurisdictional precondition. This exercise of control by Palestine was, however, according to Article 11 of the Mandate, subject to the Mandatory’s international obligations.74 The Court called 64

E Borchard, ‘The Mavrommatis Concessions Cases’ (1925) 19 AJIL 728, 731. Bentwich (n 6) 454. 66 ibid. 67 Mavrommatis Series, Series A No 2 (n 4) 18. 68 ibid, 19. 69 ibid. 70 Borchard (n 64). 71 Bentwich (n 56) 454. 72 Mavrommatis Series, Series A No 2 (n 4) 73 Bentwich (n 6). 74 British Mandate for Palestine (n 31) Art 11. 65

Mavrommatis Palestine Concessions 43 this limitation necessary because the international obligations of the M andatory were not automatically the international obligations of Palestine.75 Given the authority granted to the Palestine Administration under Article 11 of the Mandate, it was crucial that the Palestine Authority exercised this authority in a manner that was compatible with Great Britain’s international obligations’.76 Before the Court could establish its jurisdiction, therefore, the second crucial matter was to determine the scope of Britain’s international obligations referenced in Article 11. The Greek government argued that the phrase at issue in Article 11 referred to ‘all international obligations in general’.77 Meanwhile, the British view was that it referred ‘only to various beneficent principles to the maintenance of which Great Britain was pledged under the Mandate, such as freedom of transit and communication and equality of commercial opportunity for all Members of the League’.78 Accordingly, the British government contended that the dispute related not to the interpretation or application of the Mandate, but rather simply to Protocol XII of the Treaty of Lausanne. The Protocol was ‘an international instrument distinct from and independent of the Palestine Mandate’79 which dealt specifically with the kind of concessions at issue, while the Mandate did so only by implication. The Court conceded that, in the event of a conflict between the Mandate and the Protocol, the latter deserved preference ‘being a special and more recent agreement’.80 However, holding the provisions of the Mandate applicable ‘in so far as they were compatible with the Protocol’,81 the Court found no such conflict: The silence of Protocol XII concerning the Mandate and the jurisdiction of the Permanent Court of International Justice, does not justify the conclusion that the Parties intended to exclude such jurisdiction; for the Protocol does not only deal with mandated territories, and it includes amongst its signatories a State which is not a Member of the League of Nations.82

The Court thus held that the international obligations referenced in Article 11 must be understood to encompass the Protocol’s requirement to maintain concessions, provided they were granted before 29 October 1914. This date, to which the Court attached considerable importance as Article 311 of the Treaty of Sèvres specified it (the essence of which later became Protocol XII) proved pivotal; it dictated that the Jerusalem concessions, but not the Jaffa concessions, were classified as obligations accepted by Great Britain under Article 11, making only the former subject to the jurisdiction of the Permanent Court. The Court stopped short of finding jurisdiction in respect of the Jaffa concessions which, granted after 29 October 1914, precluded application of Protocol XII. In the alternative, the Parties disagreed over whether ‘concessions granted between 29 October 1914, and the restoration of peace in

Mavrommatis Series A No 2 (n 4) 23.

ibid, 24.

ibid, 30. ibid, 31.

76 ibid. 78 ibid. 80

81 ibid. 82 ibid.

44 Michael Waibel countries where Turkey continued to exercise sovereign power, hold good, in principle, as against the successor States’.83 Supporting a theory of state succession, the Court considered the Administration of Palestine bound to honour any contracts agreed by the preceding regime, and recognise attendant concessionary rights, under ‘the general principle of subrogation’.84 The Court paid little attention to contested nationality of Mavrommatis or to Protocol XII not yet having entered into force at seisin.85 However, relying on the principle of effectiveness to sidestep the problem of non-retroactivity,86 the Court concluded that the Protocol ‘also granted protection against infringements anterior to the protocol’s coming into force’87 because Greece would be able to resubmit its application at any time.88 Despite the application being premature, it was cured by the subsequent deposit of the necessary ratification.89 Its justification for so doing was, in the words of the Permanent Court, that an International Court ‘is not bound to attach to matters of form the same degree of importance which they might possess in municipal law’90 (the second Mavrommatis formula). iv. Dissenting Opinions The majority judgment fuelled five fervent dissents, albeit to various degrees: none of the five dissenting judges was satisfied as to the existence of a dispute between two states, viewing it as merely one between Great Britain and a Greek national; Judge Bustamante refused to accept that the Court’s jurisdiction could extent to a dispute predating the entry into force of Article;91 while in the view of Judge Moore and Lord Finlay, who offered the lengthiest dissents, all three prerequisites for jurisdiction in Article 26 were not met. On the central issue of diplomatic protection, the dissenting opinions expressed a clear preference for a more restrictive reading than that adopted by the majority judgment. Both Lord Finlay and Judge Moore emphasised the lack of any negotiation between governments.92 Judge Moore refused to accept that a government could become a party to a dispute ‘at any moment when it might see fit to intervene’,93 and was particularly concerned that a loose understanding of the need for a negotiation process encouraged governments to ‘evade their obligations’94 to use diplomacy to endeavour to settle any differences that arise. He pointed to similar provisions in general arbitration treaties which require negotiations between governments to

ibid, 28.

84 ibid. 85

Burgis (n 6). Uerpmann-Wittzack ‘Mavrommatis Concessions Cases’ (n 18) 14. 87 ibid, 8. 88 ibid. 89 Mavrommatis Series A No 2 (n 4) 34. 90 ibid. 91 Borchard (n 64) 729. 92 Bentwich (n 6) 457. 93 Mavrommatis Series A No 2 (n 4) dissenting opinion by Judge Moore, 63. 94 ibid, 62. 86

Mavrommatis Palestine Concessions 45 reach a settlement by way of an example. Moreover, in his view, the nature of the dispute was ‘eminently fit’95 for settlement by inter-government negotiation. Until such discussions had been attempted, Judge Moore stated, ‘it was not possible to say that there was a dispute as to the interpretation of the Mandate’,96 as required by the third jurisdictional condition. Meanwhile, Judge Pessôa disproved of the decision of the majority to dispense with the need for previous negotiations between two governments, considering such a requirement to be ‘a tribute to the sovereignty of nations’,97 and to the principle ‘that all disputes shall be settled between the nations concerned themselves’. In his view, the Court should only intervene when any likely solution ‘is recognized as impossible’.98 Similarly critical of the failure of the Greek government to make any effort to negotiate with Great Britain, Lord Finlay deemed it ‘insufficient that Greece had simply espoused the claim of its national’,99 deeming it ‘quite impossible to say that if the Greek Government had taken up the claim and, as a government, had pressed for a settlement, the negotiations might not have resulted in a settlement’.100 Regarding the third and most divisive prerequisite, he took the view that the dispute in issue fell to be considered under Article 26, refusing to accept the majority’s view that the international obligations accepted by the Mandatory included p rovisions of Protocol XII of the Treaty of Lausanne. He contended that the Administration had not provided for the public control of the country’s natural resources in a manner prohibited by Article 11 on the grounds that ‘supervision of a Concession by the public authority, which is an inherent provision of nearly every Concession, is not what is contemplated by the Article of the Mandate’.101 Such a violation would be found, Lord Finlay hypothesised, if ‘the Government of Palestine had disregarded all Concessions granted by the Turks and asserted public ownership of all resources of the country’.102 But it had not done so. Judge Bustamante refused to accept the proposition that the Court possessed any jurisdiction to enforce unratified treaties, denying the Mandate possessed any ‘retrospective effect’.103 Judge Moore was in agreement, pointing to Article 36 of the Statute of the Court which limited its compulsory jurisdiction to matters specifically provided for ‘in treaties and conventions in force’.104 He was also particularly critical of the approach towards treaty interpretation by the majority, considering the French text to simply be a literal translation of the English text, ‘intended to mean the same thing’.105 However, he acknowledged the difference in opinion and that ‘each clause should be interpreted in the sense which best reconciles the rights and

Bentwich (n 6).

Mavrommatis Series A No 2 (n 4) dissenting opinion by Judge Pessôa, 91.

96 ibid. 98 ibid. 99

Uerpmann-Wittzack (n 18), 9. Mavrommatis Series A No 2 (n 4) dissenting opinion by Judge Finlay, 41. 101 Bentwich (n 6) 456. 102 ibid 457. 103 Mavrommatis Series A No 2 (n 4) dissenting opinion by Judge Bustamante, 83. 104 Judge Moore (n 93) 55. 105 ibid, 69. 100

46 Michael Waibel duties of the contracting Parties’.106 More particularly, he proposed that in the case of a divergence of views on the meaning of a given term differently understood in the languages of the contracting parties, is to give preference to that country which is bound.107 Apart from the disagreement over whether jurisdictional conditions were satisfied, the majority and dissents in Mavrommatis disagreed sharply on the mandatory or consensual character of the PCIJ’s jurisdiction: should a compromissory clause be dealt with simply on its terms, according to what states agreed; or ‘put in the greater context of the Permanent Court as an institution and given a mainly analogical, and often extensive, interpretation in accordance with notions of what a court of justice ought to be’.108 Judges Finlay and Moore, firm advocates of the consensual test for establishing jurisdiction in the earlier Eastern Carelia109 opinion, reiterated their views in Mavrommatis. Indeed, Judge Moore professed to have been ‘unable to grasp the majority view in a legal sense’,110 and drew attention to the fact that continental European judges seemed to favour compulsory jurisdiction, unlike judges from elsewhere.111 Even the majority judges failed to offer a united front: while Judge Anzilotti subscribed to consensual jurisdiction, fellow majority judge, President Loder (Netherlands), issued the following warning to those who opposed compulsory jurisdiction: You are fighting against time; you will do so in vain … We recognise no greatness which is raised above justice, even where it wears the mantle of sovereignty.112

B. Judgment No 5 (1925—Merits) i. Nationality of Mavrommatis Before it could establish whether any infringement of such concessions had taken place, the Court needed to rule on the validity or otherwise of the Mavrommatis concessions. The rights of non-Ottoman nationals who held concessions in Palestine were maintained, but not those of Ottoman nationals. One of the initial issues in determining the validity of the concessions was therefore whether Mavrommatis was a Greek or Ottoman national. To resolve this issue, the Court referred not only to Ottoman law but also to general principles of contract law.113 Using such general principles, the Court dealt with the matter of Mavrommatis’ nationality swiftly, finding any mistake concerned not his identity but merely his attributes. Nullity of

106

ibid, 70. ibid. Judge Moore citing: A Rivier, Principes du Droit des Gens (1896) vol 2, 122; Bonfils, Manuel de Droit International Public, 7th edn (Paris, Fauchille, 1924) 571. 108 Spiermann (n 59) 203. 109 Status of Eastern Carelia, Advisory Opinion (23 July 1923) Series B, No 5. 110 Spiermann (n 59). 111 ibid. 112 ibid 204. Spiermann cites BCJ Loder, Speech Delivered by Dr BCJ Loder at the Baquest Given by the Anglo-Batavian Society (The Hague, 1923) 19–22. 113 Mavrommatis Series A, No 5 (n 4) 30. 107

Mavrommatis Palestine Concessions 47 the concessions was thus not a possibility, while annulment depended ‘on the question whether Ottoman nationality was considered as a condition of the grant of the concessions’.114 In doing so, the Court thereby rendered the nationality question irrelevant. Despite the Court’s sole concern here being the validity of a concession under national law, this judgment has had some influence in the determination of a relevant error within the meaning of Article 48 of the Vienna Convention of the Law of Treaties (VCLT).115 ii. Expropriation of Mavrommatis’ Concessions Once the Court resolved the nationality matter, it considered whether Britain could expropriate Mavrommatis, whose prior concessions partially overlapped with those of Rutenberg in respect of electric power and tramways in Jerusalem. Unlike Article 311 of the Treaty of Sèvres which had preceded it,116 Protocol XII to the Treaty of Lausanne maintained pre-existing concessions and gave no right to expropriate them.117 Britain had conceded if Rutenberg’s concession granted unconditionally an exclusive right to supply electric energy to Palestine, it would constitute an expropriation of Mavrommatis’ concession,118 but stressed that Rutenberg’s concession does nothing of this kind.119 In the UK’s view, it was particularly telling that Mavrommatis himself did not appear to consider his concessions to be alive.120 However, the majority was of the view that Rutenberg’s ability to request the expropriation of pre-existing concessions by the Palestine administration sufficed to constitute an interference with the rights of Mavrommatis in breach of Protocol XII.121 This was true until, in May 1924, Rutenberg ‘categorically declared’122 that he was renouncing his right to request expropriation, leaving the Mavrommatis concessions free from potential interference. The UK addressed the Greek concerns as to Rutenberg’s good faith in disclaiming his right to expropriate the concessions belonging to Mavrommatis, with Mr Hogg claiming the ‘clear and unequivocal disclaimer’123 was prompted directly by these Greek doubts.

114 ibid.

115 Uerpmann-Wittzack (n 18) [10]. An error of fact was only considered to justify annulment of a contract if the particular fact was deemed conditional for the conclusion of the contract. This idea is reflected in Art 48(1) VCLT, which states: ‘A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty’. 116 On the interpretation of this provision in relation to a single concession dating back to the Ottoman period that the Government of Palestine decided to buy out, Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements v His Britannic Majesty’s Government, Award, 4 October 1922, reproduced in Appendix I to S Rosenne, The Jaffa–Jerusalem Railway Arbitration (1992), 28 Israel Yearbook on Human Rights, 239–72. 117 Borchard (n 64) 736. 118 Hogg (n 38) 113. 119 ibid. 120 ibid, 124. 121 Mavrommatis Series A, No 5 (n 4) 40. 122 Borchard (n 64). 123 Hogg (n 38) 188.

48 Michael Waibel The UK reminded the Court that ‘it is not really a question solely of Mr Rutenberg’s intention; it is a question of the British Government’s intentions’,124 which were firmly opposed to expropriation. This seemed to convince the Court, which found that, while there had previously been a clear breach of Protocol XII, this breach had occurred only between the years of 1921 and 1924, after which Rutenberg renounced the right to request expropriation. It was therefore left for the Court to determine the extent of any compensation due to Mavrommatis during this time. Yet the Court found that Mavrommatis had suffered no loss.125 Rather, the Court recognised that, while it had been a t heoretical possibility during the time, expropriation itself had never taken place. Despite his financial difficulties, the Court found Mavrommatis had neither been inhibited in any efforts to execute his concessions, nor was he deprived of any tangible benefit attributable to the grant of concessions to Rutenberg. The Court emphasised that ‘the sole subject of inquiry was the extent, if any, to which the grant of the Rutenberg concession had violated the international obligations of the Mandatory, and the losses, if any, that Mavrommatis thereby sustained’.126 The Court agreed with British submissions that unconnected losses, or deteriorations in value attributable to the political instabilities of Palestine, fell outside the court’s jurisdiction under Article 26.127 With particular reference to Mavrommatis’ accusation that the British government had caused the withdrawal of his financiers, the Court found wanting any evidence of any causal link between the two, opining instead that ‘the withdrawal of his banking support was caused by many other factors, notably the uncertainty of the whole political situation due to the absence of treaty relations, and not merely by the grant of the Rutenberg concession’.128 Therefore, despite ruling in favour of Mavrommatis, the Permanent Court turned down his claim for compensation, and thus specifically awarded only declaratory rather than pecuniary relief, on the grounds that he had not suffered any monetary loss. Instead, the Court simply held: even if the clause in Article 29 of the conditions of M. Rutenberg’s concession is to be regarded as contrary to the Mandatory’s international obligations, in so far as it gave M. Rutenberg the right to require the expropriation of concessions conflicting with his own, this clause has not in fact either led to the expropriation or annulment of M. Mavrommatis’ concessions, or caused him any loss which might justify a claim on his behalf for compensation in the present proceedings.129

iii. Protocol XII Treaty of Lausanne 1924 Although the majority decided that Mavrommatis, found to have suffered no loss, was unable to claim compensation, a larger majority considered that he was entitled 124 ibid. 125

Mavrommatis Series A, No 5 (n 4) 44. Borchard (n 64). Hogg (n 38) 100. 128 Borchard (n 64) 736; Burgis (n 6) is highly critical of this aspect of the Court’s decision, attributing Mavrommatis’ struggles in implementing his concessions directly to the Mandate regime’s actions, notably regarding ‘the bank withdrawing its backing in the knowledge of British preferences for Rutenberg’s concessions’. 129 Mavrommatis Series A, No 5 (n 4) 45. 126 127

Mavrommatis Palestine Concessions 49 to re-adaptation of his concession in light of the new circumstances. This matter was decided not under the jurisdiction of the Court according to Article 26, but rather under a special informal agreement between the parties to decide upon which provisions of Protocol XII were applicable to the Mavrommatis concessions.130 The Court held that the international obligations accepted by the Mandatory under Article 11 of the Mandate incorporated by reference the provisions of Protocol XII of the Treaty of Lausanne, effective 6 August 1924. The fundamental principle of the Protocol was the maintenance of concession contracts concluded with the Ottoman Empire before 29 October 1914. The salient issue thus soon became whether Mavrommatis had begun to put his Jerusalem concessions into operation before this date, entitling him to claim the benefits of Article 4, which provided for the readaptation of concessions to conform with current economic conditions, or whether he would instead have to rely upon Article 6, which carved out an exception for concessions yet to commence.131 For the Court, much turned on the choice between the English and French versions of the text, and particularly with the weight accorded to the Protocol’s drafting history of the latter, which included a notable linguistic change from commencement d’éxecution to commencement d’application.132 Ultimately, the Court decided that this change was significant, and thus that putting a contract into operation included not only the execution of the contract but additionally any preliminary efforts in advance of the execution, namely the submission of surveys and designs of the works to be carried out, as Mavrommatis had done in 1914. Consequently, the Court found that Article 4 applied, which meant that Great Britain, though not liable for compensation, was obliged readapt Mavrommatis’s concession to the new economic conditions.133 C. Judgment No 10 (1927—Readaptation) In the wake of the 1925 judgment, which held the Rutenberg concession of 1921 to contradict British obligations as Mandatory for Palestine according to Protocol XII of the Treaty of Lausanne in conjunction with Article 11, negotiations took place to readapt and ultimately replace the 1914 concession contracts. Greece and the UK appointed experts and gave them the task of readapting the concessions for the supply of water and electricity to Jerusalem, which concluded on 25 February 1926. The new concessions contained provisions requiring that ‘the Concessionaire [absolutely and] irrevocably surrendered all the rights and benefits under the Ottoman Agreements of 1914’.134 The High Commissioner for Palestine also conditioned the new concessions upon the concessionaire forming requisite companies within a specified timeframe, securing sufficient capital, and submitting plans for approval within three months. 130

ibid, 27. Borchard (n 64) 733. 132 Mavrommatis Series A, No 5 (n 4) 50. 133 A Kuhn, ‘The Mavrommatis Case on Readaptation of the Jerusalem Concessions’ (1928) 22 AJIL 383. 134 Bentwich (n 6) 459. 131

50 Michael Waibel Initial efforts of Mavrommatis to wholly assign his concessionary rights to a trustee failed, having been prohibited by the terms of the contract. Subsequently, in May 1926, he submitted plans on his own behalf, the approval of which, in respect of the water concession, was not forthcoming until December 1926, considerably later than within the three months stipulated. Shortly prior to receiving such approval, Mavrommatis made apparent that ‘he demurred to the refusal of the British Government to accept the deposit of the plans made by the trustee, and demanded damages for the failure to approve the plans within the time fixed in the contract itself’.135 Such delay was purportedly attributable to opposition from Rutenberg, during which time the Rutenberg concessions were formally granted by Great Britain. Outraged that the UK delayed the granting of these concessions, Mavrommatis turned once more to the Greek government to institute proceedings before the PCIJ on his behalf. On 28 May 1927, Greece obliged. The claim was that the British Government had breached its international obligations in granting Rutenberg’s hydro-electric concession in March 1926, in light of the conflict with Mavrommatis’ concession which was ‘protected by international treaty’.136 Given the hostilities Mavrommatis faced, Greece submitted, ‘it was rendered materially and morally impossible for M. Mavrommatis to obtain the financing of his concessions’137 which caused him to suffer damages. The Court concurred with the UK, confirming that ‘only where an alleged breach of the Protocol of Lausanne is the outcome of the exercise of the full power to provide for public control given by Article 11 of the Mandate that it has jurisdiction to deal with the breach’,138 thereby dismissing the Greek claims to the effect that any act whatsoever performed by the authorities concerning the grant of a public utility concession could be deemed sufficiently public. In short, the Court determined that ‘the question of readaptation fell outside the scope … of the compromissory clause [contained in Article 26] as it had been construed in 1924’.139 The clause thus ‘did not vest the Permanent Court with jurisdiction to decide the whole dispute as defined by the applicant’.140 Jurisdiction was held not to follow inexorably from earlier judgments No 2 and No 5.141 Here, unlike in 1924, the Court therefore concurred with the British submissions and adopted a more conservative outlook to its jurisdictional reach, interpreting Article 26 narrowly, and ultimately declining jurisdiction. The Court’s reticence is likely to have been prompted by the critical backlash that ensued its 1924 judgment. Indeed, Judge Moore considered earlier dissents to have been ‘far more instructive than the principal opinion’.142 The Court made clear that its previous decisions allowed jurisdiction only if ‘the facts alleged by the Greek Government in support of its claim

135 ibid. 136 ibid. 137

Mavrommatis Series A, No 11, 6. Bentwich (n 6) 461. 139 Spiermann, (n 59) 215. 140 ibid. 141 Mavrommatis No 11 (n 137) 14. 142 Spiermann (n 59) 225, citing Judge Moore to Hudson, 14 January 1934, Moore papers 1278 and Hudson papers 134A.1. 138

Mavrommatis Palestine Concessions 51 constitute an exercise of the full power to provide for public control under Article 11 of the Mandate’.143 Ultimately, the Court held that it did not. i. Dissenting Opinions Dissents came from Judge Nyholm, Judge Altamira and, unsurprisingly, the Greek national judge, Judge Caloyanni. Those in the minority certainly favoured ‘a more expansive reading of the nature of “public control” as well as the “public” role of the Jewish Agency in the development of the Mandate’,144 thereby advocating a more liberal approach to the jurisdiction of the Permanent Court. Each of these dissents is arguably premised upon the maxim boni iudicis est ampliare iurisdictionem, which in the past has tended to be confined to national courts.145 Spiermann has questioned whether the majority judges may have been ‘discouraged from such analogical interpretation by the meagre outcome of the previous proceedings in the judgment on the merits in 1925’.146 This certainly could have been a factor. Judge Caloyanni ‘cautioned against relying on traditional notions of “public authority”, arguing instead for flexibility in light of the sui generis nature of the Mandate system’.147 In his view, the ‘special international character of the Mandates’148 compelled the Court to interpret its jurisdiction generally to ensure ‘a degree of conformity in the exercise of the total power granted to the Mandatories’.149 In addition, his suggestion that international obligations should require the Mandatory to ‘determine its negative as well as its positive conduct so as not to infringe or impair any rights’,150 implied that any act or omission could constitute an exercise of public control under Article 11.151 Similarly, Judge Altamira spoke of ‘juridical common sense’,152 disagreeing with the narrow definition of public control adopted by the majority. He preferred to ‘extend the jurisdiction of the Court by the argument that any series of acts by the Administration of Palestine which tended to set aside or to hamper certain Concessions in order to give free play to a certain economic policy of the Mandate’153 sufficed as an exercise of public control. The dissent of Judge Nyholm, admirably fervent in his belief that jurisdiction of the Court should be ‘general, subject to specific exceptions’,154 in contrast with the majority who regarded the Court’s jurisdiction as itself an exception, is particularly striking for its discussion of the implications of the majority approach. E xpressing some concern, Judge Nyholm made the astute observation that the upshot of the Court’s decision was, ‘by the choice of his own line of action, 143

British Mandate for Palestine (n 31) Art 11. Burgis (n 6) 895. Bentwich (n 6) 461. 146 Spiermann (n 59) 225. 147 Burgis (n 6). 148 ibid. 149 ibid. 150 Bentwich (n 6) 462. 151 ibid. 152 Mavrommatis No 11 (n 137) dissenting opinion by Judge Altamira, 44. 153 Bentwich (n 6). 154 ibid. 144 145

52 Michael Waibel a Mandatory may abolish the jurisdiction of the Court’,155 which he criticised as ‘an inadmissible proposition’.156 At heart, the Court’s ‘refusal to take jurisdiction seems to have rendered futile the carefully considered judgments rendered on the previous submissions’.157 The breach in issue, alleged by the Greek government, was the UK’s failure to comply with the re-adaptation ordered by the 1925 judgment of the Court. In 1924, the Court had found that it had jurisdiction to entertain the Mavrommatis dispute. In 1925, it determined that Great Britain was in violation of its international obligations regarding concessions belonging to Mavrommatis, who was entitled to re-adaptation provided he absolutely and irrevocably surrendered all rights to his former concessions. Mavrommatis obliged. Kuhn remarked, ‘[a]nd yet the mandatory, by failing to take the necessary steps to make the new concession definite, could annul both the old and the new concession without right of redress through the Permanent Court’.158 Perhaps disappointingly, this appears to accurately portray the connotations of the decision of the Court in this third and final Mavrommatis judgment. Bentwich certainly believed this to be the case, suggesting the International Court will only be able to intervene exceptionally, namely, when a government act affects a concession in such a way as to violate ‘some specific provision in an international agreement, to which the Mandatory is a party’.159 Unlike Kuhn, Bentwich believed this to be a fortunate outcome, warning of ‘grave embarrassment if the opinion of the minority of the judges in the third case had prevailed, and any dispute between a pre-war Concessionaire and a Mandatory Government arising out of any action of that Government with regard to the natural resources or public utilities could form the subject of a suit in the International Court’.160 He criticised the three dissenting judges for failing to address the British submission to the effect that jurisdiction should not be taken by the International Court ‘where the complainant has a claim which can be pursued in the Municipal Courts’.161 To demonstrate the severity of the consequences should the Court have found jurisdiction in this case, Bentwich relied upon words of the Attorney-General, who had spoken on behalf of Britain in Mavrommatis, and cautioned as to the longterm implications of deciding in favour of the Greek government for the existence and vitality of the Permanent Court itself: Nothing can be better calculated to render nations unwilling to enter into agreements submitting their cases to the decision of the Court than a consciousness that those agreements are likely to be construed in such a way as to embrace questions which were never intended when the agreement was signed. Few things can be worse for the dignity of the Court than that it should find itself involved in trying a multitude of causes which are, in effect, claims by private persons such as are dealt with in the ordinary municipal courts, but which are diverted to this tribunal because it happens that the respondent is a sovereign State and the claimant is a subject of some other Power.162 155

Mavrommatis No 11 (n 137) dissenting opinion by Judge Nyholm, 31.

157

Kuhn (n 32) 385.

156 ibid. 158 ibid. 159

Bentwich (n 6) 462. ibid 463. 161 ibid 462. 162 Speech by Sir D Hogg, Counsel for Britain, Part II, Speeches Made in Court, Series C No 13, September 1927, 20. 160

Mavrommatis Palestine Concessions 53 This prediction, accurate or otherwise, clearly had much weight with the majority judges in the final Mavrommatis judgment and goes a considerable way to explaining the stark change in approach between 1924 and 1927. Spiermann broadly concurred with this statement, and asked whether the reluctance of the majority to bestow an effective interpretation upon a special agreement with limited scope in upholding jurisdiction might, borrowing words from Chorzow Factory, ‘instead of settling a dispute once and for all, would leave open the possibility of further disputes’.163 V. THE LEGACY OF MAVROMMATIS

The Mavrommatis judgment is often used simply as authority for the right of states to exercise diplomatic protection. However, its significance runs deeper. It also led the Court to formulate three influential formulas in international dispute settlement generally concerning the character of diplomatic protection, flexibility in procedural matters and temporal jurisdiction and temporal reservations. For these reasons, the Mavrommatis case deserves the designation as a landmark. A. Diplomatic Protection Although disputed in 1924, the Court’s concept of diplomatic protection has achieved both fame and notoriety, making the first Mavrommatis judgment by far the most significant. The ICJ approved the institution in the seminal cases of Nottebohm164 and Barcelona Traction,165 and referred to it as the ‘cornerstone of diplomatic protection’.166 The first limb of the ‘famous formula’167 has been uncontroversial. Diplomatic protection has long been understood as a discretionary right belonging to the state whose national has been injured by another state’s internationally wrongful act.168 It is the second limb, namely, the notion that the state invokes its own right, which has provoked debate. In Nottebohm, embracing this fiction, the ICJ held accordingly: ‘diplomatic protection and protection by means of international judicial proceedings constitute measures for the defence of the rights of the State’.169 In the 2000s, the International Law Commission (ILC) distanced itself somewhat from this so-called Mavrommatis fiction,170 albeit while trying to preserve the essence 163 Case Concerning the Factory at Chorzów (Claim for Indemnity) (Jurisdiction), Series A, No 9 (1927), 25. 164 Nottebohm Case (Liechtenstein v Guatemala) Second Phase [1955] ICJ Rep 4. 165 Case Concerning The Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v Spain) Second Phase [1970] ICJ Rep 3. 166 Preliminary Report on Diplomatic Protection, International Law Commission, 50th session (1998), A/CN.4/484, 27, [1]) of the commentary on Article 2. 167 Uerpmann-Wittzack (n 18) [14]. 168 A Pellet, ‘The Second Death of Euripides Mavrommatis’ (2008) 7 LPICT 33–38, at 35; United Nations, Draft Articles on Diplomatic Protection (2006), Art; 2. 169 Nottebohm (n 164) 24. 170 United Nations, Draft Articles on Diplomatic Protection with Commentaries (2006), Art; 4.

54 Michael Waibel of diplomatic protection as established by the Permanent Court in Mavrommatis. The ILC hoped to ‘open the door to fundamental evolution in order to put the revered institution that they claim to codify in step with international law in the 21st century’.171 Special Rapporteur Dugard was alert to the limited role for individuals on the international law plane, recognising that ‘[t]he individual may have rights under international law but remedies are few’.172 This is evident from several international and national decisions.173 The mechanism of diplomatic protection therefore remains an essential way for individuals to vindicate their international rights, a consideration which has been instrumental in the ILC’s decision to retain the Mavrommatis fiction to some extent. The ILC did phrase Draft Article 1 so as to define diplomatic protection without direct reference to the Mavrommatis fiction. However, it was careful not to imply that the Permanent Court had wrongly decided Mavrommatis at the time. Rather, the ILC underlined the developments in international law since Mavrommatis. After the First World War, the Court shifted in favour of states protecting the rights of individuals not through any theory of diplomatic protection, but rather ‘as a distinct act of representation’.174 Most candid in this recognition was the Arbitral Tribunal in the Junghans case between Germany and Romania, which held: The injured individual addressed his government. If the latter accepted to defend his claim, it was the State that became claimant, appearing before the arbitral tribunal as the legal representative of its national. Thus, the German Government appeared on behalf of the Junghans heirs whose rights determined the extent of the claim it was bringing.175

In more recent cases concerning state responsibility, the Court has acknowledged this notion that a state may appear ‘for the protection of its own rights as well as for the protection of its nationals’.176 For instance, in 1993, in Bosnian Genocide, the Court determined ‘Bosnia and Herzegovina was entitled to receive, in its own right and as parens patriae for its citizens, full compensation for the damages and losses caused’.177 Similarly, in 2005, in Armed Activities, it held that acts had caused injury ‘to the DRC and to persons in its territory’.178 It follows from this suggestion that the state has its own claim as well as a claim on behalf of its national. This change evidenced in the case law of the International Court was coupled with indications that the ILC had begun to embrace the theory of ‘two rights’.179 171

Pellet ‘The Second Death of Euripides Mavrommatis’ (n 168) 34. Commentary to Draft Article 1 (n 170) 26. 173 A Vermeer-Künzli, ‘As If: The Legal Fiction in Diplomatic Protection’ (2007) 18 EJIL 37, 67. See, for example, Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya: Mitchell v Al-Dali and the Kingdom of Saudi Arabia [2006] UKHL 26, where Lord Hoffman upheld state immunity in the face of serious allegations of torture. 174 Pellet (n 168) 48. 175 ibid 47, citing Arbitral Award of 21–29 October 1940, second part, 3 RIAA, 1888. 176 ibid, 50. 177 The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) CR 2006/37, 24 April 2006, 60. 178 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 257, [259] (emphasis added). 179 Pellet (n 168) 52. 172

Mavrommatis Palestine Concessions 55 Dugard pointed to human rights treaties, which ‘offer foreigners only limited means to enforce the rights they are considered to have on the international plane’,180 as one reason for retaining the Mavrommatis fiction: as long as the State remains the dominant actor in international relations, the espousal of claims by States for the violation of the rights of their nationals remains the most effective remedy for the promotion of human rights. Instead of seeking to weaken this remedy by dismissing it as an obsolete fiction that has outlived its usefulness, every effort should be made to strengthen resort to diplomatic protection.181

Whether we view investment treaties as analogous to human rights treaties or rather to the more traditional treaties creating benefits for states only has important implications, and is not merely a theoretical debate. If the right belongs to the individual, the state’s right must be purely residual, and thus may only be exercised in the absence of a remedy brought by the individual. Conversely, if the holder of the right is the state itself, as the Mavrommatis formula dictates, the failure of the individual to exhaust local remedies will have no impact on the ability of the state to bring its own claim. According to the traditional Mavrommatis principle, whereby the right of diplomatic protection belongs to the home state, the national should not be able to prejudice its state’s right to bring a claim. This means an individual is unable to waive the right as it is held by the state, and therefore removed entirely from the disposition of the individual. In the investment context, for example, if an investor contracted with the host state to waive its ability to seek diplomatic protection, the investor might be prevented from requesting diplomatic protection, but it could not prevent the home state from providing diplomatic protection. The home state could also bring and settle claims, even on unfavourable terms, without the consent, acquiescence or even knowledge of the investor. However, in Mavrommatis itself, the home state’s ability to bring a diplomatic protection claim depended on the nature and actions of its national.182 The state had to prove nationality both at the time of injury and when bringing the claim and demonstrate that the national had exhausted local remedies. The Mavrommatis fiction has therefore arguably remained, despite some fierce criticism, to best serve the interests of the individual in international law. Without it, they would likely be worse off. B. Jurisdiction of the International Court Although Mavrommatis concerned the interpretation of a single provision, Article 11 of the British Mandate for Palestine, it provides some insight into the scope of the PCIJ’s jurisdiction regarding mandates in general and more broadly, the character of the Court’s jurisdiction.183 180

ibid, 43.

181 ibid.

182 A Robert, ‘State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority’ 2014 Harvard International Law Journal, 55. 183 4 ILR 50, in the Note, 52.

56 Michael Waibel First, the ICJ consistently relies on the Permanent Court’s definition of a ‘dispute’ given in Mavrommatis,184 namely, that a dispute exists in the event of a ‘disagreement on a point of law or fact, a conflict of legal views or of interests between two persons’.185 Subsequent ICJ cases have echoed this approach.186 In South West Africa,187 South Africa objected that the conflict or disagreement alleged by Ethiopia or Liberia was not a dispute in terms of Article 7 of the Mandate for South West Africa, as it did not involve or affect any material interest of those states. There the Court held that the requirement of a dispute was satisfied where parties disagreed over points of law. Second, the Court’s treatment of Protocol XII as lex specialis. As we have seen, the Protocol appeared to satisfy all the conditions for overriding similar clauses in the British Mandate over Palestine: as an independent and distinct international instrument, it dealt ‘specifically with the kind of concessions such as those of M. Mavrommatis’,188 unlike Article 11 of the Mandate, which did so only by implication. The Court dismissed that the Protocol would only apply insofar as it was compatible with the Mandate, emphasising that the Protocol as a special and more recent agreement prevailed.189 Conversely, the provisions of the Mandate were held to be applicable ‘in so far as they were compatible with the Protocol’.190 Certain provisions of the Protocol clearly affected the jurisdiction of the Court, albeit without proving technically incompatible with Article 11 of the Mandate. Third, the temporal scope of the Court’s jurisdiction. In Mavrommatis, Great Britain objected to the PCIJ’s jurisdiction on temporal grounds. It alleged that the acts forming the basis of the claim took place before the entry into force of Protocol XII to the Treaty of Lausanne.191 The Court dismissed the objection, considering the Protocol to encompass all disputes whenever they arose, on the grounds that ‘[t]he reservations made in many arbitration treaties regarding disputes arising out of events previous to the conclusion of the treaty seems to prove the necessity for an explicit limitation of jurisdiction’.192 The Permanent Court also referred to an important systemic consideration of the treaty’s effectiveness, noting that ‘[a]n essential characteristic therefore of Protocol XII is that its effects extend to legal situations dating from a time previous to its own existence’.193 If that were not the case, the Court warned, the Protocol would be

184 See, for instance, Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections) [2011] ICJ Rep [30]. 185 Mavrommatis Series A, No 2 (n 4) 11. 186 See for example: Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Merits) [1980] ICJ Rep 3; Case Concerning the Northern Cameroons (Cameroon v United Kingdom) (Preliminary Objections) [1963] ICJ Rep 27. 187 South-West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) Judgment of 21 December 1962, [1962] ICJ Rep 327. 188 ibid, 30. 189 ibid, 31. 190 ibid. 191 Mavrommatis Series A, No 2 (n 4) 35; cf also Phosphates in Morocco (Italy v France) (14 June 1938), Series A/B, no 74, 24. 192 ibid, 35. 193 ibid, 34.

Mavrommatis Palestine Concessions 57 ineffective as regards the very period at which the rights in question are most in need of protection.194 This Mavrommatis principle means that a jurisdictional provision referring simply to ‘disputes’ applies to existing as well as new disputes, except where the jurisdictional clause is tied to the substantive operation of a treaty.195 In the absence of temporal reservations, the only other limitation on temporal jurisdiction is the entry into force of the substantive obligation on which the claim is based.196 In 2008, the ICJ applied this Mavrommatis principle in the Croatia Genocide case.197 Yugoslavia relied on the principle of non-retroactivity and submitted that the ICJ lacked jurisdiction to give effect to the Convention on the Prevention and Punishment of the Crime of Genocide with respect to acts which had occurred prior to the Genocide Convention entering into force between the parties. It submitted according to the rule of customary international law, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide would not be operative between the parties prior to 29 December 1992 and, accordingly, this would not confer jurisdiction on the Court in respect of events occurring prior to 29 December 1992.198

In its famous paragraph 34, the Court said the following about its temporal jurisdiction: Yugoslavia, basing its contention on the principle of the non retroactivity of legal acts, has … asserted … that, even though the Court might have jurisdiction on the basis of the [Genocide] Convention, it could only deal with events subsequent to the different dates on which the Convention might have become applicable as between the Parties. In this regard, the Court will confine itself to the observation that the Genocide Convention—and in particular Article IX—does not contain any clause the object or effect of which is to limit in such manner the scope of its jurisdiction ratione temporis, and nor did the Parties themselves make any reservation to that end, either to the Convention or on [a later possible opportunity]. The Court thus finds that it has jurisdiction in this case to give effect to the Genocide Convention with regard to the relevant facts which have occurred since the beginning of the conflict which took place in Bosnia and Herzegovina.199

Originally conceived to overcome a procedural default in a proceeding before the PCIJ, the Court invoked but misapplied this Mavrommatis principle in Croatia Genocide.200 The Federal Republic of Yugoslavia (FRY), then Serbia and Montenegro, did not become a Member of the United Nations until 2000 thus could not have

194 ibid. 195 See

Mondev International Ltd v United States of America ICSID Case No ARB(AF)/99/2. cf Article 13 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA): ‘An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs’. 197 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections) [1996] ICJ Rep. cf also E Bjorge, The Evolutionary Interpretation of Treaties (Oxford, OUP, 2014) 177; A Chua and R Hardcastle, ‘Retroactive Application of Treaties Revisited: Bosnia-Herzegovina v Yugoslavia’ (1997) 44 NILR 414. 198 ibid, [15]. 199 ibid [34]; 200 Case Concerning Application of the Convention on the Prevention and Punishment on the Crime of Genocide, 3 February 2015, separate opinion, Judge Abraham, 540. 196

58 Michael Waibel been a state-party in 1999. At the time of the ICJ’s ruling, Croatia would have been unable to bring a claim against then Serbia based on the Genocide Convention given the latter’s reservation to jurisdiction in this respect. Nonetheless, the Court assumed that Croatia could have validly resubmitted the case and, out of judicial economy considerations, the Court seemed to suggest that it might have jurisdiction over events prior to 27 April 1992 (but joining the determination of its jurisdiction in respect of these acts to the merits). In its judgment on the merits, the Court adopted a more nuanced approach as regards the application of the Mavrommatis principle.201 It explained that ‘the absence of a temporal limitation in Article IX is not without significance but it is not, in itself, sufficient to establish jurisdiction over that part of Croatia’s claim which relates to events said to have occurred before 27 April 1992’.202 It underscored that the ‘temporal scope of Article IX is necessarily linked to the temporal scope of the other provisions of the Genocide Convention’.203 This position leaves the Mavrommatis principle intact, as the other limitation on temporal jurisdiction applies, namely the entry into force of the substantive obligation at issue. C. State Succession The Mavrommatis judgments have also been used in support of a rule that concessions granted by the predecessor state bind the successor state.204 As we have seen, the dispute brought the law of state succession as it applied to state contracts to the fore. The tension between major changes in status linked to the passing of territorial sovereignty due to armed conflict and pre-existing economic agreements with private actors was at the core of the Mavrommatis dispute.205 In an earlier decision, in German Settlers in Poland, the Court had determined that ‘private rights acquired under existing law do not cease on a change of sovereignty’.206 Indeed, it had gone so far as to suggest that ‘[e]ven those who contest the existence in international law of a general principle of State succession do not go so far as to maintain that private rights including those acquired from the State as the owner of the property are invalid as against a successor in sovereignty’.207 The first Mavrommatis judgment presented the Court with an occasion to develop the law on matters of State succession, having been asked to determine its jurisdiction

201 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), judgment, 3 February 2015. 202 ibid, [93]. 203 ibid. 204 Uerpmann-Wittzack (n 18) [14]. 205 cf also an important arbitral award on state succession with respect to the Ottoman debt a year after the first Mavrommatis judgment, Affaire de la Dette publique ottomane (Bulgarie, Irak, Palestine, Transjordanie, Grèce, Italie et Turquie), Award, 18 April 1925. Questions of state succession increasingly arise also with respect to contemporary investment treaties. For an overview, see CJ Tams ‘State Succession to Investment Treaties: Mapping the Issues’ 31 ICSID Review 2, 314–43. 206 German Settlers in Poland Series B, No 6 (1923) 36. 207 ibid.

Mavrommatis Palestine Concessions 59 in respect of Mavrommatis’ concessions for Jerusalem and Jaffa. The Greek Government contended that, according to the Treaty of Lausanne, Great Britain, on becoming the mandatory power for Palestine, ‘assumed all of Turkey’s obligations, including the electricity franchise granted to Mavrommatis’.208 The UK disagreed, contending that the dissolution of the Ottoman Empire by the end of the First World War rendered void Mavrommatis’ claims. The essence of this British submission is that such a fundamental change of circumstances, the regime change, frustrated the earlier contracts between Mavrommatis and the Ottoman authorities. If correct, later concessions granted to Rutenberg could not breach Mavrommatis’ rights, since they would be deemed invalid. The Court declined the opportunity to engage in these matters of state succession.209 Instead, it opted to decide the matter according to the specific applicable provisions of Protocol XII, according to which it had no jurisdiction regarding the Jaffa concessions. However, the Court in Mavrommatis did recognise that Great Britain, succeeding Ottoman rule of Palestine, was bound to recognise c ertain concessionary rights that Turkey had granted under ‘the general principle of subrogation’.210 It found the Administration of Palestine was bound to recognise the Jaffa concessions based on a general principle of international law211 which admitted no exception.

208

Naor (n 21). (n 64) 738, lamented the Mavrommatis case as a missed opportunity for the PCIJ to contribute to the law of state succession. 210 Mavrommatis Series A, No 2 (n 4) 28. 211 ibid. 209 Borchard

4 Factory at Chorzów (Germany v Poland) (1927–28) CHESTER BROWN

I. INTRODUCTION

HIS VOLUME COLLECTS commentaries on ‘landmark’ cases in public international law, and it would not be complete without a chapter on the Factory at Chorzów case. For, like other contributions included in this v olume, the Factory at Chorzów case must be among the most frequently cited judgments to have emanated from an international court or tribunal.1 It is primarily significant for the contribution it makes to the rules of international law on issues of state responsibility, the law of reparation, and the assessment of damages, but it also deals with issues which are of contemporary concern, such as the effect of multiple or parallel proceedings, the inherent powers of international courts and tribunals concerning the consequences of an internationally wrongful act, the so-called doctrine of ‘clean hands’, and allegations of abusive corporate manoeuvres. It has therefore proved to be one of the more enduring international decisions and is deserving of its place in this volume. The case concerned a claim by Germany against Poland which was brought in relation to Poland’s alleged breach of its international obligations under Article 6 of the Geneva Convention of 15 May 1922,2 and the amount of reparation that Poland owed in respect of its conduct towards two German companies—namely, the ‘Oberschlesische Stickstoffwerke AG’ (‘the Oberschlesische’) and the ‘Bayerische Stickstoffwerke AG’ (‘the Bayrische’)—at the time it took possession of the ‘nitrate

1 eg, in J Crawford (ed), Brownlie’s Principles of Public International Law, 8th edn (Oxford, OUP, 2012), it is cited eight times; in D Harris and S Sivakumaran, Cases and Materials on International Law, 8th edn (London, Sweet & Maxwell, 2015), it is cited 15 times; in M Shaw, International Law, 7th edn (Cambridge, CUP, 2014), it is cited eight times; in A Zimmerman, C Tomuschat, K Oellers-Frahm and C Tams (eds), The Statute of the International Court of Justice: A Commentary, 2nd edn (Oxford, OUP, 2012), it is cited 34 times; and in G Triggs, International Law: Contemporary Principles and Practices, 2nd edn (London, Butterworths, 2011) it is cited nine times. 2 Convention concerning Upper Silesia concluded at Geneva on 15 May 1922 (Germany–Poland), reproduced in Martens, Nouveau Receuil Général des Traités, 3rd ser, vol 16, 645 (‘the Geneva Convention’).

62 Chester Brown factory situated at Chorzów’.3 The Factory at Chorzów case was, thus, an apparently straightforward diplomatic protection claim, albeit one in which the Permanent Court of International Justice (PCIJ or ‘the Court’) restated the applicable international law principles concerning the obligation on states to make reparation for an internationally wrongful act. For a comprehensive understanding of the issues in the Factory at Chorzów case, it is necessary to be familiar with a number of different decisions of the Court. Indeed, the Factory at Chorzów litigation might also be remembered as the international proceedings which invoke thoughts of Jarndyce v Jardyce, the apparently endless litigation concerning a contested will before the English Courts of Chancery in Dickens’s Bleak House.4 The relevant decisions include both of the Court’s judgments in the Certain German Interests in Polish Upper Silesia case (in which the underlying facts of the case are set out),5 as well as, of course, the Factory at Chorzów case itself.6 In Certain German Interests in Polish Upper Silesia (Merits), the Court had declared that Poland’s conduct was a breach of its obligations under Article 6 (and the following provisions) of the Geneva Convention.7 Then on 18 October 1927, Germany sought an interpretation of the two judgments that had been issued in the Case Concerning German Interests in Polish Upper Silesia.8 In its judgment of 16 December 1927, in the case titled Interpretation of Judgment Nos 7 and 8 (The Chorzów Factory), the Court held that it had recognised, ‘with binding effect between the Parties concerned … amongst other things, the right of ownership of the [Oberschlesische] in the Chorzów factory under municipal law’.9 In the next instalment, the Factory at Chorzów (Jurisdiction) case, the Court enunciated what is, as James Crawford has termed it, the ‘classic general statement

3 Factory at Chorzów (Merits) (Germany v Poland), Series A (No 17) 5 (Judgment of 13 September 1928). 4 C Dickens, Bleak House (1853). The fictitious Jarndyce v Jarndyce litigation, which forms a central theme of Dickens’s novel, involved an interminable challenge to an inheritance which played out before the English Courts of Chancery. 5 Certain German Interests in Polish Upper Silesia (Preliminary Objections) (Germany v Poland), Series A (No 6) (Judgment of 25 August 1925); Certain German Interests in Polish Upper Silesia (Merits) (Germany v Poland), Series A (No 7) (Judgment of 25 May 1926). For discussion, see, eg, JHW Verzijl, The Jurisprudence of the World Court (Sijthoff, 1965), vol I, 145–63; A Fachiri, The Permanent Court of International Justice: Its Constitution, Procedure and Work (Oxford, OUP, 1932) 221–28, 234–42; M Hudson, The World Court (World Peace Foundation 1931) 31–35; and O Spiermann, International Legal Argument in the Permanent Court of International Justice (Cambridge, CUP, 2005) 215–24. This case also deals with a range of other claims brought by Germany against Poland, notably concerning Poland’s liquidation of certain rural estates belonging to German private interests (see eg Certain German Interests in Polish Upper Silesia (Preliminary Objections) (Germany v Poland), Series A (No 6), 6, 10–11, 22–27). This aspect of the Certain German Interests in Polish Upper Silesia case is not addressed in this chapter. 6 Factory at Chorzów (Jurisdiction) (Germany v Poland), Series A (No 9) (Judgment of 26 July 1927); Factory at Chorzów (Interim Measures of Protection) (Germany v Poland), Series A (No 12) (Order of 21 November 1927); and Factory at Chorzów (Merits) (Germany v Poland), Series A (No 17) (Judgment of 13 September 1928). For discussion, see eg Verzijl Jurisprudence (n 5) vol I, 163–76; Fachiri Permanent Court (n 5) 246–50, 263–64, 271–74, 283–88; Hudson The World Court (n 5) 52–55. 7 Certain German Interests in Polish Upper Silesia (Merits) (n 5). 8 Interpretation of Judgments Nos 7 and 8 (The Chorzów Factory) (Germany v Poland), Series A (No 13) (Judgment of 16 December 1927). 9 ibid, 22.

Factory at Chorzów 63 of the consequences of an internationally wrongful act’,10 as follows: ‘[i]t is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form’.11 After the Court disposed of a request by Germany for interim measures of protection,12 the proceedings culminated in the celebrated Factory at Chorzów (Merits) judgment of 13 September 1928, in which the Court issued its oft-cited dictum that: The essential principle contained in the actual notion of an illegal act—a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals—is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.13

As is well known, this passage of the Court’s judgment forms the basis of Article 31 of the Articles on State Responsibility of the International Law Commission (ILC), which provides in part that: ‘The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act’.14 In its commentary, the ILC explained that: The obligation placed on the responsible State by article 31 is to make ‘full reparation’ in the Factory at Chorzów sense. In other words, the responsible State must endeavour to ‘wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed’ through the provision of one or more of the forms of reparation set out in chapter II of this part.15

And as James Crawford has explained, the Court’s definition of the obligation to make full reparation ‘has been reaffirmed on numerous occasions, by the International Court, investment tribunals, international human rights courts and committees, and other bodies’.16 It is perhaps ironic that despite the authoritative guidance offered by the Court on the content of the obligation to make full reparation, the Court never issued a judgment which implemented it. For on 6 December 1928—less than three months after the Court had delivered its judgment on the merits—Germany notified the Court that ‘the Parties had concluded an agreement regarding the settlement

J Crawford, State Responsibility: The General Part (Cambridge, CUP, 2013) 480. Factory at Chorzów (Jurisdiction) (n 6) 21. 12 Factory at Chorzów (Interim Measures of Protection) (n 6). 13 Factory at Chorzów (Merits) (n 6) 47. 14 International Law Commission, ‘Draft Articles on Responsibility of States for International Wrongful Acts, with Commentaries’ (2001) ILC Ybk, vol II, pt II, 31, Art 31(1). 15 ibid, 91 (Commentary to Article 31), [3] (footnotes omitted). 16 Crawford, State Responsibility (n 10) 481 (footnotes omitted). See also C Brown, A Common Law of International Adjudication (Oxford, OUP, 2007), 185–24. 11

64 Chester Brown of the dispute’.17 On 13 December 1928, Poland issued a letter confirming that this was the case.18 The Court thus issued an order bringing to an end the expert enquiry that had been set in train by the Court’s judgment of 13 September 1928, and terminating the proceedings.19 Part I of this chapter sets out the background to and facts of the case, and Part II identifies the Court’s conclusions on the legal issues. Part III then analyses the importance of the Court’s judgment, and also notes certain limitations. It is concluded that the Factory at Chorzów case is one that deserves its place in the pantheon of the ‘landmark cases’ of international law. II. BACKGROUND AND FACTS OF FACTORY AT CHORZÓW

In order to have an appreciation of the facts of the Factory at Chorzów case, it is necessary to be familiar with the Court’s earlier judgment in Certain German Interests in Polish Upper Silesia (Jurisdiction), which was handed down on 25 August 1925.20 But before turning to that case, the broader background to the Factory at Chorzów case is also noteworthy. For the Factory at Chorzów case was but one in a series of disputes between Germany and Poland in the interbellum, some of which manifested themselves as inter-state disputes, whereas others became requests for an advisory opinion. The subject matter of these disputes was largely characteristic of the early case load of the Court, which frequently found itself called upon to assist in the administration of the post-World War I settlement reached (inter alia) in the Treaty of Versailles. As JHW Verzijl has said of this early period of the PCIJ’s existence: When we try to visualise in the first place to what spheres of international law the disputes referred to the Court for a Judgment or for an Advisory Opinion belong, it appears—and this is by no means accidental—that the turmoil on the international political scene of the present day is strikingly reflected in them. The modern world is still waiting for the final settlement of the legal liquidation of World War I, and the last stubborn political struggles about it between the nations also found its echo in the Hague Court. There in refined juristic forms Poland and Czechoslovakia disputed sovereignty over the ore field of Jaworzina, Yugoslavia and Albania over a strip of land in the neighbourhood of the monastery of Saint Naoum on Lake Ochrida, Great Britain, standing up for her protégé Iraq, and (even though by a negative attitude) Turkey over the vast and valuable Mosul district.21

Dr Verzijl continued as follows: With the aid of the Court, Bulgaria tried to defend herself against an excessive burden of war reparations in favour of Greece, and the Free City of Danzig attempted to wrest itself

17 Factory at Chorzów (Indemnities) (Germany v Poland), Series A (No 19), 12 (Order of 25 May 1929). 18 ibid. 19 ibid, 13. 20 Certain German Interests in Polish Upper Silesia (Preliminary Objections) (n 5). 21 Verzijl Jurisprudence (n 5) vol I, 7.

Factory at Chorzów 65 free from the political grip of Poland, symbolised this time by foreign post-boxes and postmen. Also the struggle for the rights of national, religious, and linguistic minorities which flared up with unprecedented bitterness after the World War, echoed loudly before the forum of the World Court: Finland stood up energetically for oppressed kinsmen in the labour commune of Eastern Carelia, Greece fought before the supreme forum for the vital interests of her kinsmen in Constantinople, who were threatened with involvement in the radical exchange of Greek and Turkish populations and consequently with banishment from Turkey, and the Polish Republic had to defend itself there three times already against German charges that it did not accord sufficient notice to the rights of the German minorities living on its territory.22

The frequency with which Poland found itself before the Court during this period may reflect a tendency or desire on its part to assert its regained independence, or at least ensure that the limits of the post-World War I agreements reached with neighbouring States were properly tested. A number of these disputes concerned Poland’s obligations under the Geneva Convention of 15 May 1922; other matters concerned its borders with Czechoslovakia and its relationship with the Free City of Danzig.23 Thus, in addition to the Certain German Interests in Polish Upper Silesia and Factory at Chorzów cases, Germany also instituted proceedings against Poland in the Rights of Minorities in Upper Silesia case (1928),24 the Case Concerning the Administration of the Prince of Pless (1933),25 and the Polish Agrarian Reform and German Minority case (1933).26 The Court was also requested to issue an advisory opinion in other matters which arose out of German–Polish relations, namely the German Settlers in Poland case (1923),27 the Acquisition of Polish Nationality case (1923),28 and the Access to German Minority Schools in Upper Silesia case (1931).29 And as has been noted above, the Court issued a number of advisory opinions concerning Poland’s rights and obligations vis-à-vis the Free City of Danzig under the Danzig—Polish Convention of 9 November 1920. These included Polish Postal

ibid 7–8. See, eg, Fachiri (n 5) 189–93; M Hudson, The Permanent Court of International Justice (New York, Macmillan Company, 1934) 461, 463, 465. 24 Rights of Minorities in Upper Silesia (Minority Schools) (Germany v Poland), Series A (No 15) (Judgment of 26 April 1928); Fachiri (n 5) 276–80. 25 Case Concerning the Administration of the Prince of Pless (Germany v Poland), Series A/B (No 52) (Order of 4 February 1933); Case Concerning the Administration of the Prince of Pless (Germany v Poland) (Interim Measures of Protection), Series A/B (No 54) (Order of 11 May 1933); and Case Concerning the Administration of the Prince of Pless (Germany v Poland), Series A/B (No 57) (Order of 4 July 1933); Case Concerning the Administration of the Prince of Pless (Germany v Poland), Series A/B (No 59) (Order of 2 December 1933). 26 Polish Agrarian Reform and German Minority (Germany v Poland) (Interim Measures of Protection), Series A (No 58) (Order of 29 July 1933); Polish Agrarian Reform and German Minority (Germany v Poland), Series A (No 60) (Order of 4 July 1933). 27 German Settlers in Poland, Series A (No 6) (Advisory Opinion of 10 September 1923); see Hudson, Permanent Court (n 23) 459; Fachiri (n 5) 174–83. 28 Acquisition of Polish Nationality, Series B (No 7) (Advisory Opinion of 15 September 1923); see Hudson (n 23) 459; Fachiri (n 5) 183–89. 29 Access to German Minority Schools in Upper Silesia (Germany v Poland), Series A/B (No 40) (Advisory Opinion of 15 May 1931); Hudson (n 23) 464; Fachiri (n 5) 315–17. 23

66 Chester Brown Services in Danzig (1925),30 Jurisdiction of the Courts of Danzig (1928),31 Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels (1931),32 and Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (1932).33 Poland’s relations with its neighbours and the postWorld War I political settlement in central Europe thus occupied much of the Court’s attention during this period. Returning to Certain German Interests in Polish Upper Silesia, the judgment in this case records that on 5 March 1915—in the first year of the First World War— the Chancellor of the German Reich had entered into a contract with the Bayrische Stickstoffwerke AG (‘Bayrische’) under which Bayrische agreed to ‘establish for the Reich and to begin forthwith’ the construction of a nitrate factory at Chorzów in Upper Silesia.34 The German Reich was to acquire the land and ensure the registration of the land in its own name in the land register.35 Bayrische agreed to manage the factory until 31 March 1941 and would make use of ‘all patents, licences, experience gained, innovations and improvements, as also of al1 supply and delivery contracts of which it had the benefit’.36 Under the contract, the Reich had the right, beginning on 31 March 1926, ‘to terminate the contract for the management of the factory by the Company on March 31st of any year upon giving fifteen months’ notice’.37 Nearly five years later, on 24 December 1919—being just after the conclusion of the First World War, including the conclusion of the Treaty of Versailles, which the Allied Powers had signed with Germany on 28 June 1919—a new company was formed, namely the Oberschlesische Stickstoffwerke AG (‘Oberschlesische’), and it was agreed in a contract between the German Reich, the Oberschlesische, and the ‘Stickstoff-Treuhand-Gesellschaft’ which was a trust company for the nitrate factory (the ‘Treuhand’) that the Reich would sell the factory at Chorzów to the Oberschlesische, including ‘the whole of the land, buildings and installations belonging thereto, with all accessories, reserves, raw material, equipment and stocks’.38 Bayrische was to remain in charge of the management of the factory, and the relationship between Bayrische and Oberschlesische was confirmed in letters dated 24 December 1919 and 28 December 1919.39 On 29 January 1920, the Oberschlesische became the registered owner of the nitrate factory at Chorzów, as was recorded by the local court (‘Amtsgericht’) in Koenigshuette.40 Then, on 25 November 1920,

30 Polish Postal Services in Danzig, Series B (No 11) (Advisory Opinion of 16 May 1925); see Hudson, (n 23) 461; Fachiri (n 5) 217–21. 31 Jurisdiction of the Courts of Danzig, Series B (No 15) (Advisory Opinion of 3 March 1928); see Hudson (n 23) 463; Fachiri (n 5) 274–76. 32 Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels, Series A/B (No 43) (Advisory Opinion of 10 December 1931); see Hudson (n 23) 465; Fachiri (n 5) 326–29. 33 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Series A/B (No 44) (Advisory Opinion of 4 February 1932); see Hudson (n 23) 465. 34 Certain German Interests in Polish Upper Silesia (Preliminary Objections) (n 5) 8. 35 ibid. 36 ibid. 37 ibid. 38 ibid 8–9. 39 ibid 9. 40 ibid. Koenigshuette is the German name for Chorzów.

Factory at Chorzów 67 the Bayrische and the Treuhand (which owned all the shares of the Oberschlesische) entered into another contract which clarified the relationship between the Bayrische, the Oberschlesische, and the Treuhand.41 It was submitted on behalf of Germany that on 14 July 1920, Poland adopted a law which constituted a measure of liquidation as concerns property, rights and interests acquired after 11 November 1918 (‘the Polish Law’).42 The principal operative provisions of the Polish Law were Article 1, 2(1), and 5. Article 1 provided that: In all cases where the Crown, the German Reich, the States of Germany, institutions of the Reich or States of Germany, the ex-Emperor of Germany or other members of reigning houses, are or were entered after November 11th, 1918, in the land registers of the former Prussian provinces—either as owners or as possessors of real rights—the Polish Courts shall, on the basis of the Treaty of Peace of Versailles of June 28th, 1919, in place of the above-mentioned persons or institutions, automatically enter the name of the Polish Treasury (fisc polonais) in these registers.43

Article 2(1) provided that: Should any of the above-mentioned persons or institutions have, after November 11th, 1918, either alienated or charged the landed property in question, or should a real right, registered in the name of the aforesaid persons or institutions, have been, after November 11th, 1918, either at their request or with their consent, ceded, struck out or modified in any way, the Court shall restore the entry in the land registers to the situation which would have existed if the aforesaid persons or institutions had not made any request or given the consent necessary to effect the changes in the registers.44

Article 5 provided that: The Polish Treasury (fisc), having been entered in accordance with Article 1, as owner of a landed property, may require the eviction of persons who, as a result of a contract concluded with one of the persons or institutions mentioned in Article 1, remain in occupation of such property after the coming into force of this law.45

Germany submitted that Article 5 constituted a liquidation of the contractual rights of the persons concerned. Germany further argued that the Polish Law was not in conformity with Articles 92 and 297 of the Treaty of Versailles.46 Article 92 provided in part that ‘the property, rights, and interests of German nationals shall not be liquidated under Article 297 by the Polish Government except in accordance with the following provisions’; those provisions included that any ‘proceeds of the liquidation shall be paid direct to the owner’,47 and in addition that if an application 41

Certain German Interests in Polish Upper Silesia (Merits) (n 5) 43. Certain German Interests in Polish Upper Silesia (Preliminary Objections) (n 5). The Polish Law of 14 July 1920 was called the ‘Law concerning the transfer of the rights of the German Treasury and of members of reigning German Houses to the Treasury of the State of Poland’. 43 Law of 14 July 1920, Art 1; reproduced in Certain German Interests in Polish Upper Silesia (Merits) (n 5) 23. 44 Law of 14 July 1920, Art 2(1); reproduced in Certain German Interests in Polish Upper Silesia (Merits) (n 5) 23. 45 Law of 14 July 1920, Art 5; reproduced in Certain German Interests in Polish Upper Silesia (Merits) (n 5) 23–24. 46 Certain German Interests in Polish Upper Silesia (Preliminary Objections) (n 5) 5. 47 Treaty of Versailles, Art 92. 42

68 Chester Brown was made to a Mixed Arbitral Tribunal established under the Treaty of Versailles, and that Tribunal considers that the conditions of the sale were ‘unfairly prejudicial to the price obtained’, the Tribunal ‘shall have discretion to award to the owner equitable compensation to be paid by the Polish Government’.48 Two and a half more years passed. Then, on 1 July 1922, the Amtsgericht in Koenigshuette decided that the registration of the Oberschlesische as the owner of the factory at Chorzów was null and void and was cancelled. The Amtsgericht ordered that the pre-existing position was to be restored, and that in accordance with Article 1 of the Polish Law, the lands in question were to be registered in the name of the Polish Treasury.49 The Amtsgericht’s decision was implemented the same day.50 On 3 July 1922, Mr Ignacy Moscicki, who was acting under the a uthority of a Polish ministerial decree of 24 June 1922, took possession of the factory at Chorzów and took over the management of the factory.51 On 10 November 1922, the Oberschlesische commenced proceedings before the Germano-Polish Mixed Arbitral Tribunal which had been established under the Treaty of Versailles,52 asking the Tribunal (inter alia) ‘to order the Polish Government, the respondent in the suit, to restore the factory, to make any other reparation which the Court may see fit to fix and to pay the costs of the action.’53 The Polish Government contested the Tribunal’s jurisdiction.54 In addition, the Oberschlesische commenced proceedings before the Civil Courts of Kattowitz (Kattowice, Poland), in which it sought an order that the respondent ‘inform the applicant as to the movable property found at the Chorzów nitrate factories at 11 am on the morning of July 3, 1922, when the working of those factories was resumed by the respondent’; that it ‘state what debts it had collected’ and that it ‘restore to the applicant or to the [Bayrische] such movable property, or, should this be impossible, the equivalent value, and also to repay to the applicant or to the [Bayrische] the amount of the debts collected’.55 For its part, the Bayrische also commenced proceedings before the Germano-Polish Mixed Arbitral Tribunal on 25 March 1925, ‘with a view to obtaining an annual indemnity until the restitution of the factory to the Oberschlesische’, and seeking ‘possession and management of the factory to be restored to it’.56 The two claims before the Mixed Arbitral Tribunal were ultimately withdrawn in June 1928 after the Court had confirmed its jurisdiction over the merits of Germany’s claim for an indemnity, and the hearing of Germany’s claim on the merits was concluded.57 In addition to the litigation commenced by the Oberschlesische, Germany filed an application instituting proceedings before the Court on 15 May 1925, essentially

48 ibid. 49

Certain German Interests in Polish Upper Silesia (Preliminary Objections) (n 5) 9.

50 ibid. 51

(No 17), 22. Treaty of Versailles, Art 304. 53 Certain German Interests in Polish Upper Silesia (Preliminary Objections) (n 5) 9. 54 ibid. 55 ibid, 10. 56 (No 17), 23. 57 (No 17), 23. The hearing on the merits was held on 21–22, 25, 27, and 29 June 1928: (No 17), 6. 52

Factory at Chorzów 69 seeking declarations that the Polish Law of 14 July 1920 constituted ‘a measure of liquidation’, and as such was not in conformity with Articles 92 and 297 of the Treaty of Versailles’;58 and that ‘the attitude of the Polish Government’ concerning the Oberschlesische and the Bayrische was ‘not in conformity with Article 6 of the Geneva Convention’, and also asking that the Court declare how Poland should have behaved as regards the two companies.59 As part of this claim, Germany also sought various declarations and compensation concerning Poland’s treatment of a number of other German nationals and their property in Poland.60 Thus commenced the claim which would ultimately give the Court the opportunity to shape the law on reparation. III. THE PROGRESS OF GERMANY’S CLAIM

A. Certain German Interests in Polish Upper Silesia: Jurisdiction Faced with Germany’s quest for justice on behalf of the Oberschlesische and the Bayrische, Poland filed preliminary objections concerning Germany’s claim, arguing that Germany’s Application concerned a dispute ‘which [was] not covered by Article 23 of the Convention of Geneva’ (being the compromissory clause on which Germany based the Court’s jurisdiction), and was therefore outside the Court’s jurisdiction. In the alternative, Poland submitted that even if the Court had jurisdiction, the Application could not be entertained.61 Article 23 of the Geneva Convention provided that: 1. Should differences of opinion respecting the construction and application of Articles 6 to 22 arise between the German and Polish Governments, they shall be submitted to the Permanent Court of International Justice. 2. The jurisdiction of the Germano-Polish Mixed Arbitral Tribunal derived from the stipulations of the Treaty of Peace of Versailles shall not thereby be prejudiced.62

Poland’s objections to the Court’s jurisdiction was made on the grounds that there was no ‘dispute’ concerning the interpretation or application of the Geneva Convention, and that even if there was a ‘dispute’, it did not fall within the scope of Article 23. Poland further objected that Germany’s claim was inadmissible because the same dispute had been submitted by the Oberschlesische to the Germano-Polish Mixed Arbitral Tribunal; in addition, Poland objected to an aspect of Germany’s prayer for relief on the basis that it resembled a request for an advisory opinion, which Germany did not have standing to request.63

Certain German Interests in Polish Upper Silesia (Preliminary Objections) (n 5) 5. ibid 5–6. 60 ibid 6, 22–27. 61 Certain German Interests in Polish Upper Silesia (Preliminary Objections) (n 5) 11. 62 ibid, 13. 63 ibid, 13, 18–19. 59

70 Chester Brown The Court rejected Poland’s first objection, holding, consistently with its earlier decision in Mavrommatis Palestine Concessions, that: [A] difference of opinion does exist as soon as one of the Governments concerned points out that the attitude adopted by the other conflicts with its own views. Even if, under Article 23, the existence of a definite dispute were necessary, this condition could at any time be fulfilled by means of unilateral action on the part of the applicant Party. And the Court cannot allow itself to be hampered by a mere defect of form, the removal of which depends solely on the Party concerned.64

As for the second jurisdictional objection raised by Poland, which the Court described as its principal objection,65 this concerned the argument that the dispute did not concern the interpretation or application of Articles 6 to 22 of the Geneva Convention, but rather concerned the Polish Law of 1920. In considering this objection, the Court analysed Article 6 of the Geneva Convention, which provided that: Poland may expropriate in Polish Upper Silesia in conformity with the provisions of Articles 7 to 23 undertakings belonging to the category of major industries including mineral deposits and rural estates. Except as provided in these clauses, the property, rights and interests of German nationals or of companies controlled by German nationals may not be liquidated in Polish Upper Silesia.66

The Court ultimately rejected this objection, concluding that ‘differences of opinion contemplated by Article 23, which refers to Articles 6 to 22, may also include differences of opinion as to the extent of the sphere of application of Articles 6 to 22’, which therefore covered the dispute between Germany and Poland in the present case.67 The Court observed that Article 6 of the Geneva Convention refers to ‘undertakings’ of ‘major industries’, and the Court considered that Article 6 was ‘intended to ensure the continuity of economic life’, with the result that ‘the factory at Chorzów must be regarded as a whole’.68 It followed for the Court that the undertaking fell within the terms of Article 6.69 The Court then addressed Poland’s objections which concerned the admissibility of the claim. The first of these was that Germany’s application could not be entertained ‘until the Germano-Polish Mixed Arbitral Tribunal in Paris has given judgment in the dispute regarding the same factory, which [the Oberschlesische] submitted to that Tribunal on November 10th, 1922’.70 The Court explained that Poland did not formally present this objection as one based on litispendance, although this was a

64 ibid, 14. See also Mavrommatis Palestine Concessions, Series A (No 2), 11, stating that ‘A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons’. 65 Certain German Interests in Polish Upper Silesia (Preliminary Objections) (n 5) 14. 66 ibid, 16. 67 ibid 16. 68 ibid, 17 69 ibid. 70 ibid, 19.

Factory at Chorzów 71 ‘convenient expression’ to describe the objection.71 The Court rejected the objection, explaining that: It is a much disputed question in the teachings of legal authorities and in the jurisprudence of the principal countries whether the doctrine of litispendance, the object of which is to prevent the possibility of conflicting judgments, can be invoked in international relations, in the sense that the judges of one State should, in the absence of a treaty, refuse to entertain any suit already pending before the courts of another State, exactly as they would be bound to do if an action on the same subject had at some previous time been brought in due form before another court of their own country.72

But in any event, the Court held that there was no need for it to enter into the debate of whether litispendance was applicable as a general principle of law, for ‘the essential elements which constitute litispendance [were] not present’:73 There is no question of two identical actions: the action still pending before the GermanoPolish Mixed Arbitral Tribunal at Paris seeks the restitution to a private Company of the factory of which the latter claims to have been wrongfully deprived; on the other hand, the Permanent Court of International Justice is asked to give an interpretation of certain clauses of the Geneva Convention. The Parties are not the same, and, finally, the Mixed Arbitral Tribunals and the Permanent Court of International Justice are not courts of the same character, and, a fortiori, the same might be said with regard to the Court and the Polish Civil Tribunal of Kattowitz.74

The Court also rejected Poland’s final objection (which also concerned the admissibility of the claim) that the German application sought in part a form of advisory opinion. Poland had argued that Germany’s prayer for relief, insofar as it contained the request that the Court should indicate ‘the attitude which should have been adopted by the Polish Government’ concerning the Bayrische and Oberschlesische in order to comply with the Geneva Convention was inadmissible.75 The Court said that this was not a request for an advisory opinion, as had been contended by Poland, but rather a request for a decision. This was thus also rejected. The Court therefore confirmed its jurisdiction over Germany’s claim in respect of the factory at Chorzów and also held that Germany’s claim was admissible.76 Germany’s claim thus proceeded to the merits. B. Certain German Interests in Polish Upper Silesia: Merits The Court issued its judgment in Certain German Interests in Polish Upper Silesia (Merits) on 25 May 1926.77 Noting Poland’s objection regarding how its

ibid, 19–20. ibid, 20. 73 ibid. 74 ibid, 20. 75 ibid, 21. 76 ibid, 27. 77 Certain German Interests in Polish Upper Silesia (Merits) (n 5). 72

72 Chester Brown first claim had been formulated (namely that it seemed to deal exclusively with the Polish Law, and the relation between this law and Articles 92 and 297 of the Treaty of Versailles—rather than whether the Polish Law of 14 July 1920 was in breach of the Geneva Convention),78 Germany had reformulated its claim such that it ‘directly contemplate[d] the relation between Articles 2 and 5 of the Polish law of July 14th, 1920, and Articles 6 to 22 of the Geneva Convention’.79 Germany’s reformulated final submission was as follows: (1) That the application both of Article 2 and of Article 5 of the law of July 14th, 1920, in Polish Upper Silesia, decreed by the law of June 16th, 1922, constitutes a measure of liquidation within the meaning of Article 6 and the following articles of the Convention of Geneva in the sense that, in so far as the above-mentioned articles of the Convention of Geneva authorize liquidation, that application must be accompanied by the consequences attached to it by the said Convention, in particular the entry into operation of Articles 92 and 297 of the Treaty of Versailles prescribed by the said Convention, and that, in so far as those articles do not authorize liquidation, that application is illicit. (2) (a) That the attitude of the Polish Government in regard to the Oberschlesische Stickstoffwerke and Bayerische Stickstoffwerke was not in conformity with Article 6 and the following articles of the Geneva Convention; (b) Should the decision in regard to point (a) be in the affirmative, the Court is requested to state what attitude should have been adopted by the Polish Government in regard to the Companies in question in order to conform with the above-mentioned provisions.

Although the Court had held in its Judgment of 25 August 1925 that it had jurisdiction, it had added a reservation to the effect that its decision ‘must in no way prejudice the question of the extent to which the Court may see fit to deal with the questions contemplated by submission No. 1 of the German Application in the proceedings on the merits’.80 The Court thus briefly considered Poland’s jurisdictional objections anew, and once again rejected them. The Court then turned to consider the merits. On Germany’s first submission, the Court held that it first had to consider whether, generally speaking, Articles 2 and 5 of the Polish Law were compatible with Articles 6 to 22 of the Geneva Convention.81 The Court again considered the terms of Article 6 of the Geneva Convention, which provides that: Poland may expropriate in Polish Upper Silesia, in conformity with the provisions of Articles 7 to 23, undertakings belonging to the category of major industries including mineral deposits and rural estates. Except as provided in these clauses, the property, rights and interests of German nationals or of companies controlled by German nationals may not be liquidated in Polish Upper Silesia.82

The Court considered the meaning of the term ‘liquidation’ and concluded that it was reasonable to conclude that 78

ibid, 15.

79 ibid. 80

ibid, 16. ibid, 20. 82 Geneva Convention, Art 6. 81

Factory at Chorzów 73 the intention was … to convey the meaning that, subject to the provisions authorizing expropriation, the treatment accorded to German private property, rights and interests in Polish Upper Silesia is to be the treatment recognized by the generally accepted principles of international law.83

Having noted this, the Court confirmed that expropriation would only be lawful under the conditions identified in Article 7. The Court concluded, as a general matter, that: the application of Articles 2 and 5 of the Polish law of July 14th, 1920, in Upper Silesia is not compatible with the system established by Head III of the Geneva Convention. For, on the one hand, these articles may affect private property and withdraw it from the protective régime instituted by Articles 6 to 22, subjecting it to more serious measures prohibited by the Convention. On the other hand, they make no provision for any investigation concerning the validity of a title, and eliminate any previous investigation of an individual case, though such investigation is necessary for a correct application of the Convention.84

Poland, however, had two responses: first, that the Polish Law was not contrary to the Geneva Convention but ‘merely gave effect to rights which Poland derives from the Treaty of Versailles and other international instruments connected with that Treaty’, which were not affected by the Geneva Convention.85 Secondly, and in any event, even if that were wrong, Poland argued that the measures taken under Articles 2 and 5 of the Polish Law could not be regarded as ‘measures of liquidation’ within the meaning of Articles 6 to 22 of the Geneva Convention.86 Beginning with the first point, the Court reviewed Poland’s obligations under the Armistice Convention of 11 November 1918, the Protocol of Spa of 1 December 1918, and the Treaty of Versailles of 28 June 1919. These provided in part that Germany was not permitted for the duration of the armistice to dissipate any of its assets,87 and that any states to which German territory was ceded would ‘acquire all property and possessions situated therein belonging to the German Empire or to the German States’, with reparation being paid to Germany.88 The Court observed that Poland was not a state party to the Armistice Convention or the Protocol of Spa, and held that ‘there [had] been no subsequent tacit adherence or accession on the part of Poland to the Armistice Convention or the Protocol of Spa’;89 it further held that Poland did not have a right to reparation under the Treaty of Versailles because there had not been a state of war between Poland and Germany (Poland having of course previously been partitioned between the Kingdom of Prussia, the Russian Empire, and the Habsburg Empire until 1919.)90 The Court thus concluded that it was not

Certain German Interests in Polish Upper Silesia (Merits) (n 5) 21. ibid, 24. 85 ibid, 25. 86 ibid. 87 See, eg, Protocol of Spa, Art 1, cited at Certain German Interests in Polish Upper Silesia (Merits) (n 5) 26. 88 See, eg, Treaty of Versailles, Art 256(1), cited at Certain German Interests in Polish Upper Silesia (Merits) (n 5) 27. 89 Certain German Interests in Polish Upper Silesia (Merits) (n 5) 28. 90 ibid. 84

74 Chester Brown possible for Poland to rely on those treaties to displace the provisions of the Geneva Convention.91 As the Court held: no title of international law has been cited by Poland which enables Articles 2 and 5 of the law of July 14th, 1920, to be regarded as the exercise of a right overriding her obligations under Head III of the Geneva Convention.92

The Court then turned to Poland’s second argument, namely that the ‘suppression of private rights’ effected under Articles 2 and 5 of the Polish Law could not be regarded as ‘measures of liquidation’ within the meaning of Articles 6 to 22 of the Geneva Convention, because it applied to all ‘property, rights, and interests’ without regard to nationality, whereas the regime of liquidation only applied to German property.93 For its part, Germany argued that ‘liquidation within the meaning of the Treaty of Versailles and of the Geneva Convention includes any measure contrary to generally accepted international law which affects the property of German nationals, no matter whether such measure is authorised by a treaty provision (authorised liquidation) or whether it is not (unauthorised liquidation)’.94 But in the end, the Court rejected Poland’s submission, holding that: Expropriation without indemnity is certainly contrary to Head III of the Convention; and a measure prohibited by the Convention cannot become lawful under this instrument by reason of the fact that the State applies it to its own nationals.95

It also concluded that: The Court, therefore, is of opinion that the application in Upper Silesia of Articles 2 and 5 of the Polish law of July 14th 1920, is not in conformity with Articles 6–22 of the Geneva Convention, in so far as the said articles affect the persons or companies referred to in Head III of the Convention.96

The Court then turned to Germany’s second submission, namely its request (a) for a declaration that the attitude of the Polish Government in regard to the Oberschlesische and Bayerische was not in conformity with its obligations under the Geneva Convention,97 and (b) in the event that the answer was negative, an indication of how Poland was required to fulfill its obligations. The Court observed with respect to the second part of this submission, Germany had failed to ‘formulate properly set out claims’, with the result that the Court was not in a position to give judgment.98 It therefore only considered part (a) of Germany’s second submission. Although the Court had already decided that the Polish Law was in breach of Poland’s obligations under the Geneva Convention, Germany’s second submission provided a separate issue to be analysed. This was ‘whether the Oberschlesische

91 92

ibid, 29. ibid, 31.

93 ibid. 94

ibid, 32. ibid, 33. 96 ibid, 34. 97 ibid, 34ff. 98 ibid, 34–35. 95

Factory at Chorzów 75 and the Bayerische are really the owners of the rights which together constitute the Chorzów enterprise’.99 If this were established, it would follow that those rights would be protected by Article 6 of the Geneva Convention, only subject to the effect of the Treaty of Versailles on the content of Poland’s obligations under the Geneva Convention.100 In the case of the Oberschlesische, it was not disputed that it was a company controlled by German nationals.101 Germany argued that Poland could only v alidly acquire the factory at Chorzów (which was the Oberschlesische’s property), in accordance with Article 7 of the Geneva Convention, and in the absence of having done so, Poland must be held to be in beach of its obligations under Article 6.102 This is because the factory was ‘immune from any measure of liquidation because it possesses the character of property, rights and interests of German nationals or of companies controlled by German nationals’, within the meaning of Article 6(2).103 Poland disagreed that it was in breach of Article 6, arguing that there had been no measure of liquidation.104 In considering Germany’s claim, the Court recalled its earlier conclusion in relation to Germany’s first submission that the Polish Law was not in conformity with Poland’s obligations under the Geneva Convention, and that Poland could not rely on the Armistice Convention, the Protocol of Spa, or the Treaty of Versailles to alter that.105 The Court also considered, and rejected, an argument that there had been a ‘misuse of the right possessed by [Germany] to alienate property situated in the plebiscite area, before the transfer of sovereignty’.106 The alleged abuse was Germany’s conduct in having annulled the contract between the Reich and the Bayrische of 5 March 1915 and having then replaced it on 24 December 1919 with a contract between the Reich, the nitrate trust company (the ‘Stickstoff-TreuhandGesellschaft’), and the Oberschlesische. But the Court held that this commercial activity, far from being an abuse, had fulfilled ‘a legitimate object of the administration, namely, the abandonment by the Reich of an entreprise showing a serious deficit, by means of a sale under conditions offering a reasonable guarantee that the capital invested would eventually be recovered’.107 The Court also concluded that it could not be said that the contracts concluded in December 1919 were not ‘genuine’,108 somehow ‘designed to prejudice Poland’s rights’,109 or were ‘fictitious or fraudulent’.110 The Court also noted that there was nothing in the Treaty of Versailles to restrain Germany from alienating property, and in any event, the

ibid, 35.

100 ibid. 101 ibid. 102

ibid, 36.

103 ibid. 104

ibid, 36–37. ibid, 37. 106 ibid. 107 ibid, 38. 108 ibid. 109 ibid. 110 ibid, 42. 105

76 Chester Brown transaction was concluded prior to the entry into force of the Treaty of Versailles, which did not take place until 10 January 1920.111 Finally, the Court turned to the position of the Bayrische which had concluded the original contract with the Reich on 5 March 1915, and which, even after the contracts of 24 December 1919, was charged with ‘manag[ing] the exploitation of the Chorzów factory, on behalf of the Oberschesische’.112 It was not disputed that the Bayrische was controlled by German nationals. The question for the Court was whether Poland’s act in taking possession of the Chorzów factory on 3 July 1922 amounted to an unlawful expropriation of the Bayrische’s contractual rights. The Court’s answer was brief and to the point: As these rights related to the Chorzów factory and were, so to speak, concentrated in that factory, the prohibition contained in the last sentence of Article 6 of the Geneva Convention applies in respect of them. Poland should have respected the rights held by the Bayerische under its contracts with the Oberschlesische and the Treuhand; and the attitude of Poland in regard to the Bayerische has therefore, like its attitude in regard to the Oberschlesische, been contrary to Article 6 and the following articles of the Geneva Convention.113

The Court therefore held as follows: (1) That the application both of Article 2 and of Article 5 of the law of July 14th, 1920, in Polish Upper Silesia, decreed by the law of June 16th, 1922, constitutes, in so far as it affects German nationals or companies controlled by German nationals covered by Part 1, Head III, of the Geneva Convention, a measure contrary to Article 6 and the following articles of that Convention. (2)(a) That the attitude of the Polish Government in regard to the Oberschlesische Stickstoffwerke and Bayerische Stickstoffwerke Companies was not in conformity with Article 6 and the following articles of the Geneva Convention.

However, this did not dispose of the case, even though the Court had declared Poland to be in breach of its obligations under the Geneva Convention. For Germany wanted compensation from Poland in respect of the factory at Chorzów, and in order to obtain this, it instituted separate proceedings. Thus commenced the more wellknown phase of this litigation: the Factory at Chorzów (Claim for Indemnity) case. C. Factory at Chorzów (Claim for Indemnity): Jurisdiction On the basis of the Court’s Judgment of 25 May 1926 in Certain German Interests in Polish Upper Silesia (Merits), Germany and Poland engaged in negotiations with a view to an amicable settlement of the claims of the Bayrische and the Oberschlesische for the payment of monetary compensation.114 On 25 June 1926, Germany wrote to Poland to seek to implement the judgment, which involved: (1) the re-entry in the land registers of the Court of Konigshütte of the Oberschlesische as owners of the real estate constituting the Chorzów factory; 111

ibid, 39. ibid, 43. ibid, 44. 114 Factory at Chorzów (Claim for Indemnity) (Jurisdiction) (n 17) 15. 112 113

Factory at Chorzów 77 (2) the restoration of the factory as an industrial enterprise to the Bayerische; (3) the payment to these two Companies of an indemnity, the amount of which to be fixed by direct negotiations between the two Governments.115

On 9 September 1926, Poland replied to Germany’s letter, stating that for various reasons it would not be able to comply with Germany’s claim for restoration of the factory, and that there would also be problems in municipal law with entering the Oberschlesische in the land register.116 It suggested that it would be preferable for the Bayrische and Oberschlesische to approach the management of the factory directly, with limited participation by the two Governments.117 The negotiations began on 22 November 1926, and on 19 January 1927, the German delegation sent the Polish delegation a note containing two alternative proposals concerning the amount of compensation and the method of payment. Germany also made it clear that it was prepared to take the matter back to the Court if no agreement could be reached. It is noteworthy that Germany indicated that it ‘had abandoned its original claim for the restitution of the factory … [because] it had come to the conclusion that the Chorzów factory, in its present condition, no longer corresponded to the factory as it was before the taking over in 1922’.118 In its reply, Poland apparently agreed with the amounts of compensation claimed by Germany,119 but disagreed with the method of payment, among other reasons because it wanted to set off the compensation against money apparently owed by Germany to Poland.120 On 8 February 1927, Germany informed Poland that the two states’ differences seemed intractable and commenced proceedings before the Court. As in Certain German Interests in Polish Upper Silesia, Germany again based the jurisdiction of the Court on Article 23 of the Geneva Convention, but Germany also referred to the Germano-Polish Arbitration Treaty which had been concluded at Locarno on 16 October 1925.121 Ultimately the Court held that Germany’s claim was based on the Geneva Convention.122 The Court also acknowledged that in considering Germany’s claim, it [could not] take account of declarations, admissions or proposals which the Parties may have made in the course of direct negotiations which have taken place between them, declarations which, moreover, have been made without prejudice in the event of the points under discussion forming the subject of judicial proceedings.123

Poland once again contested the Court’s jurisdiction, arguing that (i) Article 23 of the Geneva Convention, which gave the Court jurisdiction over disputes c oncerning the interpretation or application of Articles 6 to 22 of the Geneva Convention,

115

ibid, 16.

116 ibid. 117 ibid. 118

ibid, 17.

120

ibid, 18. ibid, 19.

119 ibid. 121

122 ibid. 123 ibid.

78 Chester Brown did not confer jurisdiction on the Court over disputes relating to reparations; and (ii) even if Article 23 of the Geneva Convention did confer such jurisdiction on the Court, the Geneva Convention ‘has instituted special jurisdictions’ for private claims, and this jurisdiction affected the Court’s jurisdiction under Article 23.124 With regard to its first jurisdictional objection, Poland sought to argue that the compromissory clause in Article 23 of the Geneva Convention was of a type that sought to exclude questions of compensation from the court or tribunal’s jurisdiction.125 But the Court gave Poland’s jurisdictional objections relatively short shrift. As the Court explained, in stating the ‘classic general statement of the consequences of an internationally wrongful act’:126 It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application.127

The Court supported this view with the observation that even in treaties containing compromissory clauses which had been subjected to reservations, ‘the differences concerning which [reservations] were deemed to be necessary were those relating to legal rights and obligations and not those relating to pecuniary reparation’.128 In any event, the Court was doubtful as to whether any conclusions could be drawn from the classification of disputes in general arbitration treaties.129 However, the Court thought that in any event, such classification supported the conclusion that the phrase ‘differences of opinion resulting from the interpretation and application’ in Article 23 of the Geneva Convention ‘should be construed as including questions relating to reparations’.130 Poland made the point that in another treaty concluded by Germany with the Free City of Danzig in 1921, the compromissory clause specifically included the tribunal’s jurisdiction to decide questions of reparation. But the Court also rejected this, finding that: [T]he fact that a convention explicitly confirms the conception generally adopted in regard to arbitration clauses cannot be construed to mean that the same Parties, when employing in another convention the wording ordinarily used in conventions of this kind, have, by so doing, given evidence of an intention contrary to that which is to be presumed when interpreting an arbitration clause in a convention.131

The Court’s conclusion was: It follows from the above that Article 23, paragraph 1, which constitutes a typical arbitration clause (clause compromissoire), contemplates all differences of opinion resulting

124

ibid, 20. ibid, 21. Crawford (n 10) 480. 127 Factory at Chorzów (Claim for Indemnity) (Jurisdiction) (n 17) 21. 128 ibid, 22. 129 ibid. 130 ibid. 131 ibid, 24. 125 126

Factory at Chorzów 79 from the interpretation and application of a certain number of articles of a convention. In using the expression ‘differences of opinion resulting from the interpretation and application’, the contracting Parties seem to have had in mind not so much the subject of such differences as their source, and this would justify the inclusion of differences relating to reparations amongst those concerning the application, even if the notion of the application of a convention did not cover reparations for possible violation.132

Turning to Poland’s second jurisdictional objection, it argued that ‘there are other tribunals before which the injured companies could assert their right to an indemnity and that, in these circumstances, the German Government cannot, by substituting itself for these companies, disturb the jurisdictional system established by the Geneva Convention’.133 These other tribunals were the Germano-Polish Mixed Arbitral Tribunal (which was created under the Treaty of Versailles), and the Upper Silesian Arbitral Tribunal (which, under Article 5 of the Geneva Convention, had jurisdiction over claims concerning the alleged ‘destruction of vested rights’ arising under Part II, or ‘Head II’, of the Geneva Convention).134 As has been noted above, the Court had in an earlier phase of proceedings considered a Polish objection to admissibility on whether Germany’s claim should not be entertained on the basis of litispendance, as proceedings were pending before the Germano-Polish Mixed Arbitral Tribunal.135 On that earlier occasion, the Court had rejected the application of the doctrine, but here the Court reconsidered it due to the fact that Germany was now seeking compensation for Poland’s breach of the Geneva Convention, rather than merely declaratory relief.136 The Court began by repeating its finding in the Certain German Interests in Polish Upper Silesia case that the seizure of the property, rights and interests of the Oberschlesische and Bayrische had been effected by the Polish Law which was in breach of ‘Head III’ (namely, Articles 6–22) of the Geneva Convention, and was ‘not supported by some special authority having precedence over the Convention’ and ‘[overstepped] the limits of generally accepted international law’.137 Because the Polish Law was a breach of the provisions contained in Head III, the Court held that the Upper Silesian Arbitral Tribunal, whose jurisdiction was limited to breaches of Head II of the Geneva Convention, could not have jurisdiction over Germany’s claim. As for the Germano-Polish Mixed Arbitral Tribunal, the Court recalled that Head III of the Geneva Convention had limited the liquidation regime provided for in the Treaty of Versailles, and that certain provisions of the Treaty of Versailles had been declared applicable in Polish Upper Silesia.138 The Court considered that the jurisdiction of the Germano-Polish Mixed Arbitral Tribunal concerned ‘the application’ of Head III, whereas the present case arose out of ‘acts contrary to’ the provisions

132 ibid. 133

ibid, 25. 26. Article 5 of the Geneva Convention provided that: ‘The question whether and to what extent an indemnity for the suppression or diminution of vested rights must be paid by the State, will be directly decided by the Arbitral Tribunal upon the complaint of the interested Party’. 135 Certain German Interests in Polish Upper Silesia (Preliminary Objections) (n 5) 19–21. 136 Factory at Chorzów (Claim for Indemnity) (Jurisdiction) (n 17) 27. 137 ibid. 138 ibid, 28. 134 ibid,

80 Chester Brown of Head III.139 The Court also explained that it was reluctant to reject jurisdiction on the basis of these provisions, as follows: the Court, when it has to define its jurisdiction in relation to that of another tribunal, cannot allow its own competency to give way unless confronted with a clause which it considers sufficiently clear to prevent the possibility of a negative conflict of jurisdiction involving the danger of a denial of justice.140

Given that the provision in the Treaty of Versailles conferring jurisdiction on the Germano-Polish Mixed Arbitral Tribunal was at least open to question, and that Poland had filed a plea to the Mixed Arbitral Tribunal’s jurisdiction in the case commenced by the Oberschlesische, the Court rejected Poland’s preliminary objection. It was fortified in this conclusion by noting that Poland had failed to give notice to the Oberschlesische in advance of the adoption of the Polish Law, which was in breach of the ‘fundamental principles’ of Head III of the Geneva Convention.141 This had, in effect, deprived the Oberschlesische of the possibility of submitting its claim to the Mixed Arbitral Tribunal to have the Polish Law declared unlawful.142 And the Court called in aid the doctrine that no one can be allowed to take advantage of his or her own wrong (nullus commodum capere de sua injuria propria) in stating that: It is, moreover, a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one Party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open, to him.143

The Court therefore rejected Poland’s objections to jurisdiction and admissibility. It also rejected the proposition that ‘in case of doubt the Court should decline jurisdiction’; it held that ‘[w]hen considering whether it has jurisdiction or not, the Court’s aim is always to ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it’.144 In the present case, it had been c onvincingly

139

ibid, 28–29. ibid, 30. 141 ibid, 30–31. 142 See also Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge, CUP, 1953) 150. 143 Factory at Chorzów (Claim for Indemnity) (Jurisdiction) (n 17) 31. As Bin Cheng explains, the Factory at Chorzów case provides an apt illustration of the nullus commodum principle: ‘The Polish Government had expropriated the Chorzów Factory in virtue of her laws of July 14, 1920 and June 16, 1922, without following the procedure laid down in the Geneva Convention of 1922. As regards procedure, the Convention had provided that no dispossession should take place without prior notice to the real or apparent owner, thus affording him an opportunity of appealing to the Germano-Polish Mixed Arbitral Tribunal (Art 19). Poland, by failing to follow the procedure laid down in the Geneva Convention, had illegally deprived the other party of the opportunity of appealing to the Mixed Arbitral Tribunal. The Permanent Court held that Poland could not now prevent him or rather his home State, from applying to the Court, on the ground that the Mixed Arbitral Tribunal was competent and that, since no appeal had been made to that Tribunal, the Convention had not been complied with’ (ibid, 150). 144 ibid, 32. 140

Factory at Chorzów 81 emonstrated to the Court that it had jurisdiction, and the Court accordingly d rejected Poland’s objections to jurisdiction and reserved Germany’s suit for judgment on the merits.145 D. Request for Interpretation of Judgments Nos 7 and 8 Before the Court could turn to the merits of the Factory at Chorzów (Claim for Indemnity) case, it had to deal with two requests: a request for interpretation of the two judgments in Certain German Interests in Polish Upper Silesia, and a request for interim measures of protection. Germany filed its application on 18 October 1927 seeking an interpretation of the two judgments that had been issued in the Case Concerning German Interests in Polish Upper Silesia.146 In its request for interpretation, Germany sought two declarations: first, that the effect of the Court’s judgment in Certain German Interests in Polish Upper Silesia (Jurisdiction) was not that Poland had the right ‘to annul by process of law, even after the rendering of that judgment, the Agreement of December 24th, 1919, and the entry, based on that agreement, of the name of the Oberschlesische as owner in the land registers’; and secondly, that the proceedings brought by Poland against the Oberschlesische before the Kattowitz Civil Court which sought to effect that annulment did not have any relevance for the proceedings before the Court.147 In what can only be described as a compressed timetable, Poland filed written observations on 7 November 1927, and a public hearing was held on 28 November 1927. With unusual speed—the Court issued its judgment on 16 December 1927—the Court set out the test that had to be satisfied for it to exercise its power to interpret judgments under Article 60 of its Statute: first, there had to be ‘a dispute as to the meaning and scope of a judgment of the Court’, and second, ‘the request should have for its object an interpretation of the judgment’ (rather than be, eg, a disguised attempt to reopen the case).148 The Court considered that these conditions were satisfied,149 and duly confirmed that it had recognised in its earlier judgments, ‘with binding effect between the Parties concerned … amongst other things, the right of ownership of the [Oberschlesische] in the Chorzów factory under municipal law’.150 E. Factory at Chorzów (Claim for Indemnity): Interim Measures of Protection Concurrently with its request for interpretation of the Court’s judgments in Certain German Interests in Polish Upper Silesia, Germany also filed what was a m isconceived 145

ibid, 33. Interpretation of Judgments Nos 7 and 8 (The Chorzów Factory) (n 17). 147 ibid, 5. 148 ibid, 10. 149 ibid, 10–15. 150 ibid, 22. 146

82 Chester Brown Request for Interim Measures of Protection on 15 November 1927, in which it sought the payment of 30 million Reichsmarks ‘within one month of the date of the Order sought’.151 The Court rejected the German Request without even seeking observations from Poland, noting that ‘the request of the German Government cannot be regarded as relating to the indication of measures of interim protection, but as designed to obtain an interim judgment in favour of a part of the claim formulated in the Application above mentioned’.152 It followed that Germany’s Request was not ‘covered by the terms of the provisions of the Statute and Rules’.153 F. Factory at Chorzów (Claim for Indemnity): Merits Having determined Germany’s request for an interpretation of the judgments in the Certain German Interests in Polish Upper Silesia case, and having disposed of Germany’s application for interim measures of protection, the Court finally arrived at the task of deciding on Germany’s claim for an indemnity. The object of Germany’s claim, as indicated in its Application of 8 February 1927, was a declaration that Poland was ‘under an obligation to make good the consequent damage sustained by [the Oberschlesische and the Bayrische] from July 3rd, until the date of the judgment sought’, that the amount of compensation to be paid was 59,400,000 Reichsmarks for the damage caused to the Oberschlesische, and 16,775,200 Reichsmarks for the damage caused to the Bayrische.154 These figures were ultimately amended, and in its final submissions, Germany sought ‘58,400,000 Reichsmarks, plus 1,656,000 Reichsmarks in respect of the Oberschlesische, and ‘20,179,000 Reichsmarks’ in respect of the Bayrische.155 Germany also proposed a schedule for payment, with six per cent interest from the date of judgment.156 In addition, Germany sought an order that ‘until June 20th, 1931, no nitrated lime and no nitrate of ammonia should be exported to Germany, to the United States of America, to France or to Italy’.157 For its part, Poland sought the dismissal of Germany’s claims as regards the Oberschlesische, and Germany’s claim as regards the Bayrische should be limited to 1,000,000 Reichsmarks for past loss, and that an annual rent of 250,000 Reichsmarks should be paid for the period 1 January 1928 until 31 March 1941.158 In its judgment of 13 September 1928, the Court first grappled with the nature of Germany’s claim, and concluded that although there was nothing in international law which prevented states from conferring rights of standing on individuals to bring claims directly, the application in the instant case was ‘designed to obtain, in favour

151

Factory at Chorzów (Interim Measures of Protection) (n 6) 10.

152 ibid. 153 ibid. 154

Factory at Chorzów (Merits) (n 6) 6. ibid, 8. 156 ibid, 7. 157 ibid. 158 ibid, 15. 155

Factory at Chorzów 83 of Germany, reparation the amount of which is determined by the damage suffered by the Oberschlesische and Bayrische’.159 The Court proceeded to examine three issues: (i) ‘the existence of the obligation to make reparation’; (ii) ‘the existence of the damage which must serve as a basis for the calculation of the indemnity’; and (iii) ‘the extent of this damage’.160 On the first issue, the Court confirmed its earlier conclusion that ‘it is a general principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation’.161 The Court also observed that it had already concluded that: [A] breach of an international engagement [had] in fact taken place in the case under consideration … this point is res judicata. The non-conformity of Poland’s attitude in respect of the two Companies with Article 6 and the following articles of the Geneva Convention is established by No 2 of the operative provisions of Judgment No 7. The application of the principle to the present case is therefore evident.162

Turning to the second issue, the Court noted that it was not common ground that damage had resulted from the wrongful act.163 Poland denied that the Oberschlesische had suffered any damage, although it agreed that the Bayrische was entitled to an indemnity, albiet not the amount sought by Germany.164 Poland’s objection rested in part on its assertion that the Oberschesische was not the lawful owner of the factory, and so had suffered no dispossession; Poland argued further that the Oberschlesische was a company controlled by the German Government, rather than by German nationals.165 The Court restated the principle which it said was ‘accepted in the jurisprudence of arbitral tribunals’, according to which ‘in estimating the damage caused by an unlawful act, only the value of property, rights and interests which have been affected and the owner of which is the person on whose behalf compensation is claimed, or the damage done to whom is to serve as a means of gauging the reparation claimed, must be taken into account’.166 This had the effect of ‘excluding from the damage to be estimated, injury resulting for third parties from the unlawful act’.167 The Court rejected Poland’s submission that the Oberschlesiche was not the lawful owner of the factory, observing that it had already decided this issue in Certain German Interests in Polish Upper Silesia.168 As for Poland’s objection to the effect that Germany could not claim in respect of the Oberschlesische as it was government-owned, rather than owned by German nationals, the Court held that even if this issue had not already been decided in its

159

ibid, 29.

160 ibid. 161 ibid. 162 ibid. 163

ibid, 30.

165 166

ibid, 31, 34–35. ibid, 31.

168

ibid, 31–33.

164 ibid.

167 ibid.

84 Chester Brown earlier judgments, it would be ‘bound to conclude that the Oberschlesische was controlled by the Bayrische’.169 The Court then set down the ‘guiding principles’ for the assessment of compensation: The action of Poland which the Court had judged to be contrary to the Geneva Convention is not an expropriation—to render which lawful only the payment of fair compensation would have been wanting. It is a seizure of property, rights and interests which could not be expropriated even against compensation, save under the exceptional conditions fixed by Article 7 of the said Convention. As the Court has expressly declared in Judgment No 8, reparation is in this case the consequence not of the application of Articles 6 to 22 of the Geneva Convention, but of acts contrary to those articles.170

The Court then set forth its famous dictum: The essential principle contained in the actual notion of an illegal act—a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals—is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.171

It followed, for the Court, that ‘the compensation due to the German Government is not necessarily limited to the value of the undertaking at the moment of dispossession, plus interest to the day of payment’. As the Court explained, ‘[t]his limitation would only be admissible if the Polish Government had had the right to expropriate, and if its wrongful act consisted merely in not having paid to the two Companies the just price of what was expropriated’.172 In the present case, however, such an outcome would be ‘unjust’, for it might result in putting ‘Germany and the interests protected by the Geneva Convention, on behalf of which interests the German Government is acting, in a situation more unfavourable than that in which Germany and these interests would have been if Poland had respected the said Convention’.173 This passage of the Factory at Chorzów judgment is cited by the ILC in support of the proposition that in certain cases, claims for loss of profits may be appropriate.174 When it sought to apply this formula to the facts of the case in order to arrive at an assessment of damages, the Court was not satisfied with the material that had been submitted by the parties.175 The Court therefore arranged for the convening

169

ibid, 40. ibid, 46. ibid, 47. 172 ibid. 173 ibid. 174 J Crawford, The International Law Commission’s Articles on State Responsibility (Cambridge, CUP, 2002) 228 (Commentary to Art 36(2), [27]). 175 Factory at Chorzów (Merits) (n 6) 49. 170 171

Factory at Chorzów 85 of an ‘expert enquiry’ under Article 50 of the Court’s Statute, which had apparently been suggested by Germany.176 It directed the expert enquiry to examine: (i) the value of the factory on the date of dispossession, being 3 July 1922; (ii) whether the factory would have made a profit between that time and the date of the present judgment, if it had remained in the hands of the Oberschlesische and the Bayrische; and (iii) what would the present value be of the factory, had it remained in the hands of the two companies.177 The Court observed that ‘the value to which the above questions relate will be sufficient to permit it with a full knowledge of the facts to fix the amount of compensation to which the German Government is entitled, on the basis of the damage suffered by the two Companies in connection with the Chorzów undertaking’.178 The Court did not rule on all of the relief requested by Germany and Poland, preferring to wait pending the report of the expert enquiry.179 However as has already been noted, the matter was settled by Germany and Poland shortly after the Court rendered its judgment,180 and, like the Court of Chancery in Jarndyce v Jarndyce, the Court was never able to complete its judicial task.181 But the Factory at Chorzów case has left an undeniable legacy, to which the next part of this chapter turns. IV. CONCLUSION: THE LEGACY OF FACTORY AT CHORZÓW

The Factory at Chorzów case is most well known for its authoritative statement on the law of reparation, which has been widely applied by other international courts and tribunals, forms the basis of the relevant provisions of the ILC’s Articles on State Responsibility, and unquestionably reflects customary international law. But the Court’s pronouncements on issues such as lis alibi pendens, abuse of rights in commencing multiple proceedings, the inherent powers of international courts and tribunals, and the correct approach for the Court to adopt in deciding whether it has jurisdiction, have all been the subject of much academic and judicial consideration and discussion.182

176

ibid, 51. ibid, 51–52. 178 ibid, 55. 179 ibid, 59–62. 180 Factory at Chorzów (Indemnities) (n 17) 12–13. 181 The Court of Chancery in the fictitious litigation in Jarndyce v Jarndyce, featured in Dickens’s Bleak House, did not issue a final judgment because the funds in the estate were ultimately consumed with the litigation costs. 182 eg, on lis alibi pendens and discussion of the Certain German Interests in Polish Upper Silesia case, see R Kolb, The International Court of Justice (Oxford, Hart, 2013) 219–20; H Wehland, The Coordination of Multiple Proceedings in Investment Treaty Arbitration (Oxford, OUP, 2013) 135, 194 Oxford, 96; and Y Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford, OUP, 2003) 239–40; on the doctrine of abuse of rights (or abuse of process), see also Shany, 255–60; Brown International Adjudication (n 16) 245–50; and C Brown, ‘The Relevance of the Doctrine of Abuse of Process in International Adjudication’ [2010] Transnational Dispute Management 7; on inherent powers, see C Brown, ‘The Inherent Powers of International Courts and Tribunals’ (2005) 76 BYIL 195; and on the Court’s approach to deciding the issue of jurisdiction, see, eg, Spiermann International Legal Argument (n 5) 251–24. 177

86 Chester Brown The impact of the Factory at Chorzów case has also been felt in the field of investment treaty arbitration, where uncertainty persisted until relatively recently concerning the applicable standard of compensation for an unlawful expropriation. As is well known, many investment treaties include in the provision dealing with expropriation the conditions which must be satisfied for an expropriation to be lawful; these include the payment of compensation, which is typically expressed in accordance with the Hull formula, namely that the payment of compensation must be ‘prompt, adequate and effective’, and most investment treaties also typically state that such compensation must represent the ‘fair market value’, or the ‘genuine value’, which is to be assessed, in the terms of the Article 6(1) of the Australia—Hong Kong BIT, ‘immediately before the deprivation or before the impending deprivation became public knowledge whichever is the earlier’.183 To similar effect, Article 4(2) of the Germany—Philippines BIT provides that ‘[s]uch compensation shall be equivalent to the value of the expropriated investment immediately before the date on which the actual or threatened expropriation, nationalization or comparable measure has become publicly known’. The difficulty that arose from the interaction of such provisions with the Factory at Chorzów dictum was whether the date for assessing compensation stipulated in the BIT applied only in the case of a lawful expropriation (ie, one otherwise carried out in conformity with the requirements of the BIT, which are typically that the expropriation was for a public purpose, was non-discriminatory, and was made against the payment of compensation), or whether the date for assessing compensation under the BIT also applied in the case of an unlawful expropriation.184 This issue appears to have been resolved by the ICSID tribunal in ADC Affiliate Ltd and ADMC & ADC Management Ltd v Republic of Hungary.185 In that case, Hungary had issued a Ministerial Order which had the effect of terminating a series of contracts which had been entered into with the claimants concerning the refurbishment and management of Budapest International Airport, in respect of which Hungary did not pay any compensation.186 The ICSID tribunal concluded that this was an expropriation,187 and then turned to the issue of the standard of compensation—including the date of assessing compensation—which Hungary was obliged to pay. In contrast to many claims for expropriation, this was a material issue, since Budapest Airport had, in the time since the Ministerial Order, become a profitable enterprise, and its value had increased significantly in the intervening period. Hungary argued that the standard of compensation set forth in the applicable BIT (Article 4(2) of the Cyprus–Hungary BIT, which provides that ‘[t]he amount of

183

eg, Australia–Hong Kong BIT, Art 6(1). especially A Sheppard, ‘The Distinction between Lawful and Unlawful Expropriation’ in C Ribeiro (ed), Investment Arbitration and the Energy Charter Treaty (Huntington, NY, Juris, 2006) 169–99. 185 ADC Affiliate Ltd and ADMC & ADC Management Ltd v Republic of Hungary (ICSID Case No ARB/03/16, Award of 2 October 2006). 186 The Ministerial Order was the ‘Transport and Water Management Ministry Order No 45/2001 (XII.20)’: ADC Affiliate Ltd and ADMC & ADC Management Ltd v Republic of Hungary (ICSID Case No ARB/03/16, Award of 2 October 2006), [179]–[190], [444]. 187 ibid, [423]–[455], [476]. 184 See

Factory at Chorzów 87 compensation must correspond to the market value of the expropriated investments at the moment of the expropriation’) was a lex specialis to which Cyprus and Hungary had agreed, and that this ought to apply over the Factory at C horzów standard.188 But the tribunal disagreed, noting that the BIT’s lex specialis only applied to the standard of compensation applicable in the case of a lawful expropriation. In contrast, as the ICSID tribunal observed, ‘the BIT does not contain any lex specialis rules that govern the issue of the standard for assessing damages in the case of an unlawful expropriation’, with the result that the tribunal ‘[was] required to apply the default standard contained in customary international law in the present case’.189 The tribunal proceeded to set out the Court’s dictum from the Factory at Chorzów case, and explained that ‘[t]his statement of the customary international law standard has subsequently been affirmed and applied in a number of international arbitrations relating to the expropriation of foreign owned property’.190 Having reviewed the practice of international courts and tribunals, the ICSID tribunal concluded that: [T]here can be no doubt about the present vitality of the Chorzów Factory principle, its full current vigor having been repeatedly attested to by the International Court of Justice.191

And this directly affected the date of assessing the value of the expropriated asset, as the Court explained: The present case is almost unique among decided cases concerning the expropriation by States of foreign owned property, since the value of the investment after the date of expropriation (1 January 2002) has risen very considerably while other arbitrations that apply the Chorzów Factory standard all invariably involve scenarios where there has been a decline in the value of the investment after regulatory interference … [I]n the present, sui generis, type of case the application of the Chorzów Factory standard requires that the date of valuation should be the date of the Award and not the date of expropriation, since this is what is necessary to put the Claimants in the same position as if the expropriation had not been committed.

The impact of the Court’s judgment in Factory at Chorzów was therefore quite material for the claimants in that case. The same applied in Siemens AG v Argentine Republic, a claim brought under the Germany–Argentine Republic Bilateral Investment Treaty. In that case, the ICSID tribunal held that: Under customary international law Siemens is entitled not just to the value of its enterprise as of 18th May 2001, the date of expropriation, but also to any greater value that enterprise has gained up to the date of this award plus any consequential damages.192

188

ibid, [480]. ibid, [483]. 190 ibid, [484]–[486]. 191 ibid, [493]. 192 Siemens AG v Argentine Republic (ICSID Case No ARB/02/8, Award of 6 February 2007), [352]. ADC Affiliate Ltd and ADMC & ADC Management Ltd v Republic of Hungary (ICSID Case No ARB/03/16, Award of 2 October 2006) was not sui generis after all. 189

88 Chester Brown For the sake of completeness, it should also be noted that the international law of reparation, as based on the Factory at Chorzów dictum, has its limitations. The focus on restitution as the primary form of reparation can have limited application in the context of environmental damage and violations of human rights, which may not be able to be ‘made good’ by either of the other forms of reparation, namely compensation and satisfaction.193 One can well imagine that the current threat of environmental degradation was not at the forefront of the PCIJ judges’ minds in the 1920s, but international law need not be static; there is room for the development of new rules to cater for the challenges faced by modern international society. The Factory at Chorzów case is evidently one of the Court’s most important judgments. It laid the foundations for the law on state responsibility and many other issues besides, and its relevance is enduring. It is thus deserving of its place in this collection of ‘landmark cases’ of international law.

193 See especially M Mbengue, ‘A Critical Assessment of Reparation in International Law’ (Paper resented at the ASIL Meeting, Washington DC, 1 April 2016). As Laura Livingston observed in the ASIL p Cable of 3 April 2016, Professor Mbengue explains that ‘most environmental damages are irreversible, precluding the possibility of ever truly restoring or reviving the status quo ante. This creates difficulties in transposing traditional reparations principles onto environmental issues. Though attempts have been made to enhance responsibility for environmental wrongs through imposing strict liability and strengthening liability for non-state actors, the international community still struggles to formulate effective rules regarding liability, responsibility, and compensation for environmental damages’.

5 SS Lotus (France v Turkey) (1927) DOUGLAS GUILFOYLE

The [Lotus] dictum represents the high water mark of laissez-faire in international relations, and an era that has been significantly overtaken by other tendencies.1 Existe-t-il une différence entre la souveraineté turque et la souveraineté française?2

I. INTRODUCTION

N THE NIGHT of 2 August 1926, a Monsieur Demons, first officer of the French mail packet SS Lotus, was keeping watch as his ship sailed towards Constantinople.3 Some five or six nautical miles off Lesbos, the SS Lotus struck and sunk the Turkish vessel Boz-Kourt. Somehow, neither Demons nor Hassan Bey, the captain of the Boz-Kourt, were sufficiently alert to prevent disaster. The Turkish vessel was cut in two and sank. The Lotus went to its aid, rescuing Bey and nine others; nonetheless, eight Turkish crewmen perished. On arrival at Constantinople, local authorities commenced an investigation which ended with both Demons and Bey being tried for manslaughter and convicted on 15 September 1926. Demons was sentenced to 80 days in prison and fined. History records Bey’s sentence as being somewhat harsher, but omits why. France vigorously protested throughout that in a high seas collision exclusive flag state jurisdiction compelled the result that any crime committed had been committed solely aboard the Lotus and fell solely within French jurisdiction. The idea that a foreigner could (even if by negligence and beyond Turkish territory) kill Turkish citizens and that Turkish courts could not prosecute him sat poorly with the young Turkish republic. Indeed, Turkey had only recently escaped centuries-old capitulatory agreements limiting the jurisdiction of Turkish courts and officials over Europeans and allowing ambassadors or consuls to exercise extra-territorial criminal jurisdiction over their nationals.4 The two states agreed by compromis, Turkey 1 Arrest Warrant of 1 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, 3, 79 (Judges Higgins, Kooijmans and Buergenthal). 2 PCIJ, Series C, No 13-II, 120-1 (speech of Dr Mahmut Esat, Agent for Turkey). 3 This account draws on: SS Lotus (France v Turkey), Judgment, (1927) PCIJ Reports, Series A, 3, 10–12. 4 Not necessarily to the exclusion of local criminal jurisdiction: JB Angell, ‘The Turkish Capitulations’ (1901) 6 The American Historical Review 254, 256.

90 Douglas Guilfoyle not yet being a member of the League of Nations, to submit the dispute to the Permanent Court of International Justice (PCIJ). Thus began one of the most often discussed, and perhaps most poorly understood, cases of the PCIJ.5 It may, in retrospect, seem surprising that the incident became a case for the PCIJ at all. Demons had escaped rather lightly. His negligence had killed eight foreign nationals and he had been sentenced only to 80 days in prison. Nonetheless, freedom of navigation through internationally regulated waters (albeit in a different context) had already been litigated before the Court in SS Wimbledon.6 Then, as now, states may pursue navigational disputes simply for the principle involved. There were, however, also likely other historical and geopolitical concerns at play as discussed below. The Lotus case is significant in several respects. Its principal interest arises, of course, from the greatly maligned dictum that as rules of international law binding upon independent States ‘emanate from their own free will’ it follows that ‘[r]estrictions upon the independence of States cannot therefore be presumed’.7 This notorious ‘principle of freedom’ or ‘Lotus principle’ has been widely condemned as erroneous or, at the least, unfortunate.8 For all the controversy, the Lotus principle played little discernible role in the resolution of the Lotus case. Further, this passage was almost certainly not intended to outline a laissez-faire international law of coexistence founded on the proposition that all is permitted which is not prohibited. Nonetheless, as regards foundational principles or conceptions of the international legal system, generations of scholars have discussed the ‘Lotus principle’, if only to disagree with it.9 Despite frequent disparagement of the case’s contribution to the law of jurisdiction, it was at least prescient in concluding that there could be concurrent jurisdiction over events on the high seas (flag state jurisdiction notwithstanding) or, indeed, upon land.10 It was correct on the narrow point that ‘exclusive’ flag state jurisdiction is no obstacle to the existence of concurrent prescriptive jurisdiction11 and in suggesting more generally that concurrent jurisdiction might be an ordinary feature of international relations.12 It is also notable for being the first case in which the PCIJ attempted to formulate a definition of customary international law, or at least what it is not.13 5 Noted in: JL Brierly, ‘The “Lotus” Case’, (1928) 44 LQR 154; GW Berge, ‘The Case of the SS “Lotus”’ (1927–1928) 26 Michigan LR 361; R Ruzé, ‘Affaire du Lotus’ (1928) 9 Rev Droit Int’l & Legis Comp 3, 124; M Travers, ‘Affaire du Lotus’ (1928) 9 Rev Droit Int’l & Legis Comp 3, 400; JHW Verzijl, ‘Affaire du Lotus devant la cour Permanente de Justice Internationale’ (1928) 9 Rev Droit Int’l & Legis Comp 3, 1; and F Williams, ‘L’affaire du Lotus (Trad J Ch Rousseau)’ (1928) RGDIP 361. 6 SS ‘Wimbledon’ (United Kingdom and ors v Germany), Judgment, (1923) PCIJ Reports, Series A, No 1, 15. 7 Lotus (n 3) 18. 8 On the latter view: H Lauterpacht, The Function of Law in the International Community (Union, New Jersey, Lawbook Exchange, 2000) 94. 9 eg, Brierly ‘The “Lotus” Case’ (n 5); G Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’ (1957-II) 92 Recueil des Cours 1-277, 56–57; A Mills, ‘Rethinking Jurisdiction in International Law’ (2014) 84 BYIL 187, 190–94. 10 Lotus (n 3) 27, 29 and 31. 11 D Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge, CUP, 2007), 8–10. 12 Indeed, Mann suggested ‘jurisdiction is almost always concurrent’ but considered this ‘a matter for regret’ and evidence of the rudimentary state of development of international law. FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964-I) 111 Recueil des Cours 9, 10. 13 J Crawford, Chance, Order, Change: The Course of International Law (Leiden, Brill Nijhoff, 2014) 59, [52].

SS Lotus 91 While the Lotus case has something to say about fundamental principles of international law, and rather more to say about jurisdiction and the formation of customary international law,14 it is also a case about non-liquet.15 What is an international court to do when it finds there is no international rule governing a case? Should judicial technique be deployed to avoid a non-liquet, for example, by deducing the existence of a gap-filling rule derived from more general principles? The question clearly goes to whether international law is properly conceived of as a formally complete system or is simply a wilderness of isolated primary rules.16 If the Lotus principle meant what it is commonly taken to mean, it would leave the door open to (potentially frequent) findings of non-liquet, a possibility some scholars in the 1920s would have considered natural.17 Instead, the reasoning of the majority appears to presume the formal completeness of international law, and leaves little space for non-liquets. II. THE HISTORICAL BACKGROUND

A. Turkish–French Relations and the End of the Capitulatory Regime Several historical and legal-political circumstances must be taken into account to appreciate how the parties themselves understood the Lotus case. On the Turkish side, this was not a simple dispute about the law applicable to a maritime collision. It was a litmus test for the independence and sovereignty of the new Turkish R epublic, barely four years old in 1927. Further, the two states had a complex history. There had been an ‘exceptionally close’ diplomatic, trade and cultural relationship between the two countries from the sixteenth century until at least the end of the nineteenth century.18 It is also worth noting that France was not a distant great power but a territorial rival actively encroaching on Turkey’s borders. France retained ‘extensive Levantine mandates’ over areas formally under Ottoman control and both France and Turkey had claims to the Syrian province of Hatay (Alexandretta).19 As at 1926, the status of Hatay remained unsettled and prevented ‘the establishment of stable … [French/Turkish] relations’ and colored their ‘attitudes towards the Lotus case’.20 Other than territorial concerns, the new Turkish Republic was a jealous guardian of the jurisdiction of its courts, having only recently ended the long (and longresented) capitulatory regime. The capitulatory agreements of the Ottoman Empire,

14 ibid.

15 O Spiermann, International Legal Argument in the Permanent Court Of International Justice (Cambridge, CUP, 2005) 254; H Handeyside, ‘The Lotus Principle in ICJ Jurisprudence: Was the Ship ever Afloat?’ (2007) 29 Michigan JIL 71, 78–80. 16 Crawford, Chance, Order, Change (n 13) 62–67; H Lauterpacht, ‘Some Observations on the Prohibition of “Non Liquet” and Completeness of the Law’ in E Lauterpacht (ed), International Law: Selected Papers, vol 2 (Cambridge, CUP, 1975). 17 eg, JS Reeves, ‘International Society and International Law’ (1921) 15 AJIL 361, 371 (positing ‘large areas’ within which sate action is ‘simply non-legal, or strictly political’). 18 U Özsu, ‘De-territorializing and Re-territorializing Lotus: Sovereignty and Systematicity as Dialectical Nation-Building in Early Republican Turkey’ (2009) 22 LJIL 29, 32. 19 ibid. 20 ibid; see further: M Khadduri, ‘The Alexandretta Dispute’ (1945) 39 AJIL 406.

92 Douglas Guilfoyle and subsequently Turkey, lasted roughly from 1535 to 1923 (the First World War interrupting) and involved a network of concessionary treaties between Turkey and European powers. Briefly, these granted foreign nationals not only freedom of movement and freedom to practice their own religion, but a series of economic and legal privileges—notably including the establishment of consular courts with jurisdiction over disputes between foreigners.21 These had the effect of turning the Ottoman empire into ‘a virtual open and free market for Europe’.22 Unsurprisingly, this state of affairs ‘engendered resentment within the Turkish-Muslim ruling elite’.23 At the end of the First World War, the Ottoman Empire had concluded a disastrous peace treaty with the Allies, the 1920 Treaty of Sèvres. It had imposed ‘the harsh terms of a relentless victor’, resulting in the partition and occupation of Turkey as well as the re-imposition of the capitulatory regime which had been abrogated in 1914.24 It was never accepted by the subsequent nationalist government of Mustafa Kemal (later Atatürk) and after the Turkish War of Independence against the occupying powers it was replaced with the 1923 Treaty of Lausanne.25 A principal objective of the Turkish negotiators of the Treaty of Lausanne was the abolition of the capitulatory regime. Indeed, its elimination had been considered by the National Forces of Mustafa Kemal as ‘a non-negotiable condition for the cessation of hostilities’.26 The new Turkish Republic sought in the Treaty a vindication of its right to be regarded as an equal sovereign under international law. Indeed, Turkey had sought an express acknowledgement in the Treaty of the competence of Turkish courts to prosecute crimes committed by foreigners beyond Turkish territory.27 This proposal was rejected, and instead Article 16 simply provided that Turkish courts could exercise jurisdiction subject to international law. As discussed below, France relied heavily upon this drafting history in the course of the case. B. The Treaty of Lausanne and the 1926 Special Agreement The jurisdictional provision of the Treaty of Lausanne was crucial to the Lotus case, affecting the questions put to the PCIJ in the special agreement, the structure of argument adopted and possibly the formulation of the notorious Lotus principle. Article 15 of the Treaty of Lausanne provided that, subject to Article 16 (concerning personal status and family law): ‘all questions of jurisdiction shall, as between Turkey and the other contracting Powers, be decided in accordance with the principles of international law’. Similarly, Article 17 required that Turkey afford to foreigners appearing

21 Özsu, ‘De-territorializing and Re-territorializing Lotus’ (n 18) 38. See further: E Pears, ‘Turkish capitulations and the status of British and other foreign subjects residing in Turkey’ (1905) 21 LQR 408–25 (helpfully summarising the scholarship of the time). 22 Özsu (n 18) 38; quoting T Naff ‘The Ottoman Empire and the European State System’ in H Bull and A Watson (eds), The Expansion of International Society (Oxford, OUP, 1984) 143, 158. 23 ibid. 24 P Marshall Brown, ‘From Sevres to Lausanne’ (1924) AJIL 113, 113–14. 25 See generally: E Turlington, ‘The Settlement of Lausanne’, (1924) 18 AJIL 696–706. 26 Özsu (n 18) 39. 27 Lotus (n 3) France: Memorial, PCIJ Reports, Series C, No 13-II, 181.

SS Lotus 93 before Turkish courts ‘a level of protection conforming both to international law and the legal principles and procedures generally followed in other countries’.28 The principal question put to the PCIJ under the special agreement was: Has Turkey, contrary to Article 15 of the Convention of Lausanne …, respecting … jurisdiction, acted in conflict with the principles of international law—and if so, what principles—by instituting, following the collision … on the high seas between the French steamer Lotus and the Turkish steamer Boz- Kourt and upon the arrival of the French steamer at Constantinople—as well as against the captain of the Turkish steamship—joint criminal proceedings … against M. Demons … in consequence of the loss of the Boz-Kourt [and eight lives]?

The second question was, if the first were answered in the affirmative, what compensation was due to Demons. It is, in retrospect, remarkable that France agreed to this phrasing of the question to be put. It is hard to see how asking whether Turkey had ‘acted in conflict with the principles of international law—and if so, what principles would do anything other than place the burden upon France to show that Turkey had either acted in violation of a prohibition of international law or acted in excess of the jurisdictional powers positively conferred upon States. In the event, and contrary to the common understanding of the case, the question of burdens of evidence or presumptions of law had little to do with the outcome (as discussed below). C. Questions of Principle: The Changing Structure of International Law The case was heard by the PCIJ under the presidency of Max Huber. It was a period in which there were relatively few experts in international law on the court. In Huber’s estimation there were only himself, Moore, Anzilotti, Beichmann and (on a good day) Bustamente.29 On Spiermann’s account it was a crucial period in the international legal argument between conceptions of the State as being either a ‘national sovereign’ or as an ‘international sovereign’.30 The important distinction being that a conception of international law grounded in states as national sovereigns can proceed as far as a law of international coexistence delineating spheres of autonomy or self-determination but not much further. This produces a relatively static vision of a minimalist international law.31 Alternatively, one can commence from the standpoint of a more complex and dynamic international law of cooperation in which the state is a subject of international law and in which the state as a national sovereign (enjoying complete freedom of action) is a ‘residual principle’.32 This dual character of the state, as Cheng put it, standing ‘on the one hand as a supreme political institution, sovereign within its own boundaries, and on the other

28 Author’s translation (‘d’une protection conforme au droit des gens ainsi qu’aux principes et éthodes généralement suivis dans les autres pays’). See: Lotus (n 3) French Memorial, Annex 4, PCIJ, m Series C, No 13-III, 216. 29 Spiermann, International Legal Argument (n 15) 212 fn 14. 30 ibid, 39–40. 31 ibid, 106–07. 32 ibid, 106–07.

94 Douglas Guilfoyle hand as a member of a society in which other equally sovereign members co-exist’33 pervades the Turkish method of argument in the Lotus case (as discussed below). Itwas an approach which, generally, fell on receptive ears. That is, in Spiermann’s view, before the Huber Court governments continued to advance arguments which presumed the primacy of the national sovereign, and therefore involved reading down international law: In rejecting these and other arguments, the [PCIJ’s] drafting committees eschewed arguments attractive to national lawyers and moulded an international lawyer’s approach … based on a firm hierarchy between the two structures of international legal argument. In a pure form, this approach … [prioritized first] the international law of cooperation and [second] the international law of coexistence with the residual principle of a state freedom being applied where no international law could be discerned.34

While the Lotus case is commonly taken to have turned on a presumption of freedom, the logic of the actual decision is far more in accordance with Spiermann’s view. Indeed, in the sentence preceding the Court’s formulation of the Lotus principle it describes customary international law as consisting of: usages generally accepted as expressing principles of law and established in order to regulate the relations between … co-existing independent communities or with a view to the achievement of common aims.35

The prioritisation of the law of co-existence or the law needed to achieve ‘common aims’ over any absolute presumption of freedom of action is readily apparent. III. THE FACTS OF SS LOTUS

As noted above, the facts of the Lotus case are not especially complex.36 On 2 August 1926, the French packet boat SS Lotus collided with the Turkish coal steamer Boz-Kourt while en route to Constantinople. The collision occurred at night, approximately five to six nautical miles north of Cape Sigri on Lesbos. Following the collision, the Boz-Kourt sunk. The Lotus rendered assistance to the shipwrecked sailors and saved 10 of the crew. Nonetheless, eight Turkish nationals perished. The following day the SS Lotus arrived in Constantinople, where the Turkish authorities proceeded to investigate the collision resulting in the arrest of Demons, the first officer and watch officer of the Lotus at the time of the collision as well as the captain of the Turkish vessel, Hassan Bey, who had been in charge of its navigation at the time of the collision. Both were arrested pending trial on 5 August. Despite repeated protestations from the French chargé d’affaires in Constantinople, both were charged with negligent homicide and the case was heard by the criminal court of Stamboul on 28 August 1926. The Turkish court rejected arguments that it lacked jurisdictional competence and on 15 September 1926 it sentenced the French lieutenant to 80 days 33 B Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge, Grotius, 1987) 31. 34 Spiermann (n 15) 213. 35 Lotus (n 3) 18. 36 This account draws on: ibid, 10–12 and Verzijl ‘Affaire du Lotus devant la cour’ (n 5) 1.

SS Lotus 95 in prison and a fine of 22 Turkish pounds and gave the Turkish captain a slightly harsher sentence. The prosecutor entered an appeal, which had the effect of suspending the sentence pending its hearing. In the interim, Lieutenant Demons was released on bail. The episode appears to have caused considerable friction with the exchange of numerous diplomatic notes as to the competence of Turkish courts in matters of collision beyond the territorial sea involving the negligence of a foreign national aboard a foreign flagged vessel.37 Nonetheless, the French and Turkish governments rapidly agreed to resolve their differences by arbitration and signed a compromise at Geneva on 21 October 1926 conferring jurisdiction over the conflict on the PCIJ. IV. THE PROCEEDINGS AND JUDGMENT IN SS LOTUS

A. The Pleadings The French submissions in the written and oral proceedings advanced, in essence, six arguments.38 First, the expression ‘principles of international law’ as used in the Treaty of Lausanne was not to be understood as a general term, but in light of the negotiating history. That is, in the course of negotiations the Turkish delegation had expressly proposed that the Treaty refer to the jurisdiction of Turkish courts to prosecute extraterritorial crimes committed by foreigners. This was roundly rejected by participating European states. France thus proposed that the jurisdiction of Turkish courts did not extend to such cases, an interpretation contrary to the plain meaning of the text based on the travaux préparatoires.39 As discussed below, there is good reason to consider that this was not merely tendentious argumentation but rather reflected French assumptions as to the qualified character of Turkish sovereignty. Second, France advanced the argument that international law does not permit a state to extend its criminal jurisdiction beyond its frontiers other than in cases where there has been expressed or implicit agreement to such an extension.40 Third, and with reference to the Franconia case (R v Keyn) among others,41 France contended that in cases of collision the exclusive jurisdiction of the flag state must mean that only the flag state is competent to prosecute criminal or disciplinary matters arising, if for no other reason than any offence will be defined by national regulations regarding safety of navigation.42 Fourth, without much elaboration, France contended it would be ‘contrary to the facts’ to localise the offence as having occurred where the effects were felt; that is, aboard the Turkish vessel.43 Fifth, France submitted that there was effectively a burden upon Turkey to show that in such a case it could point to some positive title in international law permitting it to exercise

Reproduced in: PCIJ Reports, Series C, No 13-II, 216–23. See: Berge ‘The Case of the SS “Lotus”’ (n 5) 365–66. 39 Lotus (n 3) France: Memorial, PCIJ Reports, Series C, No 13-II, 180–84. 40 ibid, 192. 41 ibid, 208; Lotus, France: Counter-Memorial, PCIJ Reports, Series C, No 13-II, 254. See further n 86. 42 Lotus (n 3) France: Memorial, PCIJ Reports, Series C, No 13-II, 197, 208–09. 43 Lotus (n 3) France: Counter-Memorial, PCIJ Reports, Series C, No 13-II, 254. 38

96 Douglas Guilfoyle extraterritorial jurisdiction.44 Sixth, it submitted that Article 6 of the Turkish Penal Code— permitting the prosecution of extraterritorial conduct by foreigners that affected Turkish interests—was contrary to international law.45 However, the French attitude to the case is perhaps more accurately captured in the Counter-Memorial’s submission that: the substitution of the jurisdiction of the Turkish Courts for that of the foreign c onsular courts in criminal proceedings taken against foreigners is the outcome of the consent given by the Powers to this substitution in the Conventions signed at Lausanne on July 24th, 1923.46

This rather plainly puts the case on the footing not of a contest between two juridically equal sovereigns, but between a ‘power’ and a peripheral state which enjoyed jurisdiction not to the full extent allowed by international law but to the extent allowed by European ‘powers’.47 Turkey had, broadly, six submissions in reply.48 First, the plain language of Article 15 gave Turkish courts jurisdiction in accordance with international law subject only to limits imposed by Article 16 (which was not relevant to the facts). Therefore, there was no warrant to imply any further limitation to Turkish jurisdiction based on the negotiating history. Second, Article 6 of the Turkish Penal Code, which had been taken verbatim from the Italian Penal Code and was similar to provisions found in numerous other national systems, was not contrary to international law. Third, analogous cases demonstrated that an offence committed aboard a Turkish vessel could be treated as if it has occurred within Turkish territory and the same principles of criminal jurisdiction were applicable. Fourth, to the extent that the incident involved connected offences (délits connexes) the Turkish Code of Criminal Procedure, which had been borrowed directly from France, stipulated that offenders should be tried together. Thus it was appropriate and legal to try Demons and the Turkish captain together in Turkey. Fifth, even contemplating the case only from the perspective of international law applicable to collisions at sea, no principle of international criminal law debarred Turkish jurisdiction. Sixth, given that Turkey plainly had jurisdiction to prosecute Demons for manslaughter, there could be no international wrong giving rise to a requirement to pay reparations to either France or Demons. This recitation, however, does not do full justice to the advocacy of the Turkish Agent and Minister of Justice: Dr Mahmut Esat, a dynamic Swiss-educated lawyer (and revolutionary politician) in his mid-thirties.49 Esat was an interesting figure in the early Turkish republic, at once a fierce nationalist but also a modernising 44

ibid, 246. Lotus (n 3) France: Memorial, PCIJ Reports, Series C, No 13-II, 186. Lotus (n 3) France: Counter-Memorial, PCIJ Reports, Series C, No 13-II, 282. (Author’s translation: ‘la substitution de la compétence des tribunaux turcs à celle des tribunaux consulaires étrangers pour connaître des actions pénales dirigées contre des étrangers a été le résultat du consentement donné par les Puissances à cette substitution dans les Conventions signées à Lausanne le 24 juillet 1923’). 47 On international law as a system in which great powers typically enjoy special prerogatives: G Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge, CUP, 2004). 48 See Lotus (n 3) 9. 49 Esat was so proud of his performance in Lotus he assumed the additional surname ‘Bozkurt’: Özsu (n 18) 49 fn 104. 45 46

SS Lotus 97 niversalist. For him, the price of creating a new and distinctly ethnically Turkish state u (one which would break with the multi-ethnic Ottoman Empire) was s ubscription to the European standard of civilisation.50 That is, while recognition as a ‘civilised’ state would entail submission to international law and adoption of European legal standards (Esat introduced the Swiss Civil Code to Turkey in 1926) it would also confer a protective cloak of sovereignty upon the young ethno-nationalist republic. As Özsu puts it, Esat advanced two parallel lines of argument: ‘the one pointing in the direction of international law’s binding force, the other underlining the agency or the autonomous state’. Esat thus argued that the effect of Article 15 of the Treaty of Lausanne was to recognise Turkey’s complete jurisdictional competence subject only to the condition that it not contravene the principles of international law. Thus, following the abolition of the capitulations, Turkey was now ‘on a footing of complete equality with other civilised and independent states, without any restriction or difference’.51 Esat was thus inclined to present the French case as a ‘thinly veiled attempt to reintroduce institutions of consular decentralisation’52 and he was equally scathing of the hypocrisy implicit in France’s own municipal use of the protective principle to assert criminal jurisdiction over the act of foreigners outside France affecting French interests. The French case was presented in elegant, technical and often gently disparaging terms by the redoubtable formalist Jules Basdevant.53 Basdevant was the older man of the two advocates, having participated in the 1919 peace conferences as a French technical expert. Now entering his fifties, he held one of very few chairs in international law in Paris and had had a distinguished academic career.54 A frequent advocate before international arbitral tribunals and the PCIJ, he was soon to enter the Ministry for Foreign Affairs55 and would eventually be elected to the ICJ itself in 1946 as an inaugural (and very long-serving) judge and eventual president. Very much a figure of the establishment, and a specialist in treaty law, he doggedly insisted throughout on his argument that Article 15 of the Treaty of Lausanne was the governing conventional law between the parties and had to be interpreted in light of the drafting history. Compared to Esat’s fieriness he may have seemed, on this occasion, rather haughty. Maintaining his insistence, as he did even in his reply, that extra-territorial judicial competence ‘had been refused to Turkey by the Allies in the negotiations at Lausanne’ and one could not recognise now, by an act of treaty interpretation, a competence ‘which had been clearly refused at Lausanne’56 played

50 H-L Kieser ‘An ethno-nationalist revolutionary and theorist of Kemalism: Dr Mahmut Esat B ozkurt (1892-1943)’ in H-L Kieser (ed), Turkey Beyond Nationalism: Towards Post-Nationalist Identities (London, IB Tauris, 2006) 20–27. 51 PCIJ, Series C, No 13-II, 111-12; quoted in Özsu (n 18) 47. (Author’s translation: ‘sur un pied d’égalité complète avec les autres États civilisés et indépendants, sans aucune restriction ou différence.’ Original emphasis). 52 Özsu (n 18) 45. 53 M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge, CUP, 2001) 312. 54 ibid. 55 ibid. 56 PCIJ, Series C, No 13-II, 139 (reply of Professor Basdevant, Agent for France) (author’s translation).

98 Douglas Guilfoyle directly to Esat’s case. It found little favour with the Court which held that the words in Article 15 ‘principles of international law’ were ‘sufficiently clear’ in themselves to preclude ‘having regard to preparatory work’. The words could only mean, in their ordinary sense, ‘international law as it is applied between all nations belonging to the community of States’.57 His arguments to the effect that criminal jurisdiction was, absent an exception, strictly territorial found more success, albeit only among the dissenting judges. B. The Judgment The Lotus case is of lasting significance regarding at least three legal issues: whether the international legal system is to be construed as one in which everything is permitted to states unless it is prohibited; the law of jurisdiction (or more narrowly, the law of jurisdiction applicable to high seas collisions); and the rules governing the ascertainment of customary international law. First, however, something should be said as to the division of opinion within the Court. Discussion of the case usually notes that the Court was equally divided with six votes in favour and six votes against the answers given, the final dispositifs following the casting vote of the President.58 This is not entirely correct. Judge Moore dissented not on the point actually decided in answering the question posed (as discussed below) but because he considered that Turkey had in practice relied upon the passive personality jurisdiction provision of its Penal Code (which he considered impermissible as the law stood at the time) and that this should have decided the case in favour of France.59 The point of law finally decided in the Lotus Case should inform our reading of the rest of the judgment: the Court held, entirely correctly, that a ship on the high seas can be ‘assimilated’ to the territory of its flag state for some purposes.60 It follows that a ship on the high seas is in the same (or no better) position as state territory for jurisdictional purposes and therefore ordinary jurisdictional principles should be applied to events on board, including objective territorial (or effects) jurisdiction. Thus: The act of the Lotus in colliding with the Turkish ship was, therefore, an act c ompleted within the Turkish territorial jurisdiction—literally, within the Turkish ship—and accordingly liable to be prosecuted by the Turkish authorities.61

Nonetheless, that act was commenced by the negligence of Demons aboard the Lotus, itself subject to the jurisdiction of France as the flag State. France, therefore, 57 Lotus (n 3) 16. The Court referred to the standard of civilisation only in quoting Turkey’s submissions: ibid, 7. 58 eg R Ruze, ‘Affaire du Lotus’ (1928) Revue de Droit International et de Législation Comparée 124, 144; C Staker, ‘Jurisdiction’ in MD Evans (ed) International Law, 4th edn (Oxford, OUP 2014) 317; A von Bogdandy and M Rau, ‘The Lotus’, Max Planck Encyclopedia of Public International Law (2006), [5]. See: Art 55, PCIJ Statute. 59 Lotus (n 3) Judge Moore (dissenting opinion), 65; see also H Lauterpacht (ed), Oppenheim’s International Law, 5th edn (London, Longmans, Green & Co, 1937) 270 fn 1. 60 Lotus (n 3) 23. 61 Staker, ‘Jurisdiction’ (n 58) 317.

SS Lotus 99 on ordinary principles would have subjective territorial jurisdiction. The result was, in the view of the majority, that: [i]t is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.62

From a modern standpoint, this would appear a relatively obvious conclusion.63 (Indeed, it was foreseen as the most likely course of reasoning for the Court in 1926 by Beckett).64 In such a case there is no rule of priority (let alone exclusivity) and either flag state involved will be able to exercise criminal jurisdiction if they are able to gain custody of the offender (or if national law permits trial in absentia).65 This result might be thought problematic insofar as it does not preclude multiple criminal proceedings being commenced before different national courts for the same conduct. However, the same may be said of any number of transnational offences. There is no general international rule against double jeopardy:66 though a limited version of one was introduced in the Geneva High Seas Convention to overturn this specific ruling, as discussed below. Nevertheless, in reaching this quite narrow conclusion the PCIJ manage to render one of the most contentious decisions in its history. The controversy arises from the (in)famous passage (emphasis added): International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.67

The final sentence has, of course, already been referred to above as the ‘Lotus principle’. One should note that, strictly, this dictum does not establish a presumption in favour of state’s freedom of action: it only ‘rejects a presumption against [such] freedom’.68 Nonetheless, the usual reading of the principle suggests the court held that there is a general presumption of freedom of state action with the consequence that it is for a state denying the legality of another state’s action to lead evidence of a prohibitive rule. This coincides with what Cheng or Spiermann term the ‘national sovereign’ approach: one which takes an essentially internal view of sovereignty, holding that a sovereign is presumptively free of any constraint. So interpreted, the principle establishes a presumption of freedom which is rebuttable, but one which necessarily commences from a proposition (or provides a technique for arriving at the conclusion) that in any given controversy between states there may not necessarily a rule governing it. This would, on its face, leave a potentially 62

Lotus, 30–31. Shipping Interdiction (n 11); Mann, ‘Doctrine of Jurisdiction’ (n 12). WE Beckett, ‘Criminal Jurisdiction Over Foreigners’ (1927) 8 BYIL l08, 111–12. 65 R O’Keefe, International Criminal Law (Oxford, OUP, 2015) 25–28. 66 R Cryer, H Friman, D Robinson and E Wilmshurst, An Introduction to International Criminal Law and Procedure, 3rd edn (Cambridge, CUP, 2014) 85–87. 67 Lotus (n 3) 18. 68 Speirmann (n 15) 254. 63 Guilfoyle, 64

100 Douglas Guilfoyle wide scope for findings of non-liquet. This, however, is not the approach the Court took in substance and was one Judge Anzilotti (who drafted the judgment) ruled out early.69 Alternatively, the Lotus principle may be interpreted instead as laying out only a residual presumption: once ordinary legal technique has been exhausted in an effort to find an applicable rule, it is possible to conclude that the question is regulated by a principle of freedom.70 On this interpretation the principle has nothing to say about burdens of proof. (And, indeed, the idea that the case set up a strict burden of proof is not compatible with the fact the Court conducted its own research into the applicable law going beyond the parties’ submissions.)71 Further, such a reading is much more compatible with the idea of (again in Cheng or Spiermann’s terms) the ‘international sovereign’, a sovereign with legal powers which are inherently limited or circumscribed, not least by the existence of other sovereigns within a system premised on the formal and existential equality of states.72 Obviously, in any system of formal equality the existence of other equals (especially equals claiming an immunity right in respect of a reserved domain of domestic affairs) will limit the sphere of action available to any individual. Alternatively, Crawford advances a reading of the Lotus principle which focuses upon the content of the word ‘independence’. That is, independent sovereign states enjoy rights: of plenary competence to act on the international plane; of ‘exclusive competence in their internal affairs’; not to be subject to compulsory dispute settlement without their consent; and of formal legal equality.73 Restrictions upon these rights may exist, but are not to be presumed. While there is now much more international law which may qualify these rights ‘it is still generally accurate to characterize sovereignty as a set of (rebuttable) presumptions.’74 Such readings are far more compatible with the paragraph which immediately followed the statement of the Lotus principle: Now the first and foremost restriction imposed by international law upon a State is that— failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.75

This passage, at the least, states one fundamental restrictive rule and presumes the existence of a wider corpus of well-established restrictive rules. The statement concerns, of course, only enforcement jurisdiction. However, given the great variety of

ibid, 250 fn 209, 259. ibid, 254. 71 ibid; Lotus (n 3) 31. 72 Namely, equality of standing before international judicial organs (formal/juridical equality) and having an equal right to territorial integrity and political independence (existential equality). Neither necessarily requires legislative equality (ie equal capacity to influence law-making processes): Simpson, Great Powers and Outlaw States (n 46) 42–56. 73 Crawford (n 13) 89–90, [90]–[93]. 74 ibid, 90, [95]. 75 Lotus (n 3) 19–20. On the significance of this paragraph for our understanding of the case see further: An Hertogen, ‘Letting Lotus Bloom’ (2016) 26 EJIL 901, 907. 70

SS Lotus 101 national legislation attaching civil consequences to conduct abroad the Court went on to state: It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law (emphasis added).76

This is more problematic. The first part of this sentence is uncontroversial: States do prescribe conduct which occurs abroad and clearly do not consider their jurisdiction to be strictly territorially limited. The emphasised portion supports the conventional reading of the case as setting out an unbridled positivist principle of freedom.77 However, the picture is more complex. First, a significant part of Turkey’s argument was that sovereign states are free under international law to choose between a variety of national systems of jurisdiction. Following the statement above the Court was keen to emphasise that the discretion left to states by international law ‘explains the great variety of rules which they have been able to adopt without objections’ by other states.78 The Court here was attempting to square a circle: the great variety of state practice on jurisdiction appeared overall to be tacitly consented to; yet the practice was not perceived as consistent enough to give rise to defined permissive rules. What we see here may also be a sign of the tensions the Court faced in attempting to navigate between two conceptions of sovereignty and, indeed, towards the more modern view it is typically taken to have rejected. (A point returned to in the conclusion.) Further, the discussion to this point in the judgment concerned civil law, and was therefore incidental. The point at hand was one of criminal jurisdiction, as the Court went on to observe: Nevertheless, it has to be seen whether the foregoing considerations really apply as regards criminal jurisdiction, or whether this jurisdiction is governed by a different principle … Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend … to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State. The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty. This situation may be considered from two different standpoints.79

This passage, crucial to the final outcome, largely sets the Court’s reasoning up to this point to one side. The point of departure in considering the question of criminal law prescriptive jurisdiction is not deduction from abstract principle but induction from the actual (and varied) legislative conduct of states in prescribing extra-territorial offences. True, the last words hint again at questions of method. One must commence from either: first, a presumption of freedom, and a restrictive rule must

76 ibid.

77 Judges Higgins, Kooijmans and Buergenthal (n 1), 79; Mills ‘Rethinking Jurisdiction in International Law’ (n 9), 191. 78 Lotus (n 3) 19. 79 ibid, 20.

102 Douglas Guilfoyle be proved against Turkey (the Turkish argument); or, second, a presumption of territoriality, in which case a permissive rule of extra-territorial jurisdiction must be demonstrated (the French argument). Again, we seem to be back to presumptions and burdens of proof. Critically, however, the Court did not choose either approach, rather it concluded that whichever approach was taken in the present case the question would be the same: whether there was a relevant rule prohibiting Turkish prescriptive jurisdiction. One might well find this conclusion a little baffling. Part of the problem is undoubtedly caused, as noted above, by the manner in which the question was put. The special agreement between France and Turkey expressly asked whether Turkey had acted contrary to any rule of international law. One might thus expect it would have been difficult for the court to avoid examining whether there was a relevant prohibition. Nonetheless, in substance, that is precisely what the Court did. Instead of searching for a prohibitive rule it instead found a permissive rule. After correctly noting that the principle of exclusive flag state jurisdiction principally confers an immunity from foreign interference (ie enforcement jurisdiction) on the high seas, the Court went on to observe: it by no means follows that a State can never in its own territory exercise jurisdiction over acts which have occurred on board a foreign ship on the high seas. A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State the flag of which it flies, for, just as in its own territory, that State exercises its authority upon it, and no other State may do so. … [B]y virtue of the principle of the freedom of the seas, a ship is placed in the same position as national territory; but there is nothing to support the claim according to which the rights of the State under whose flag the vessel sails may go farther … It follows that what occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies. If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned.80

That is, in holding that ships on the high seas could be in no better position that territory, the PCIJ found that they could be subject to concurrent prescriptive jurisdiction inter alia on the basis of the effects principle—which was sufficient to resolve the case at hand. To the extent that a prohibitive rule was relevant it was that of exclusive enforcement jurisdiction in respect of ships and territory. If one takes the Court’s reasoning seriously, the implicit train of logic must be that the easiest way to demonstrate the existence or non-existence of a restrictive rule is to enquire into the existence of a permissive one. What the law permits it cannot prohibit. In this sense the majority was right: in this particular case it did not matter the approach one took to the question because the positive law already supplied an answer. On the question of customary international law, the Lotus case’s most obvious contribution is the introduction into the reasoning of the PCIJ (and later the ICJ) of the two-element theory of customary law. The Court took the question to

ibid, 25.

SS Lotus 103 be whether there existed a rule of international law which, in the event of a collision, reserved jurisdiction exclusively to the courts of the flag state of ‘the vessel proceeded against’.81 Rather than proceeding on the basis that it already knew the law (jura novit curia), the Court instead required evidence of the rule.82 Thus it was not enough for France and to show that cases concerning (disputed or concurrent) criminal jurisdiction in the event of a collision were rare and that this was consistent with a duty upon states other than the flag state not to prosecute. Even if the rarity of reported cases proved the factual point alleged by the French agent: it would merely show that states had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom.83

While a strict two-element formulation of custom has become a staple of the written judgments of the ICJ, the extent to which it is applied in practice is, at best, dubious.84 C. The Dissenting Opinions Six dissents were appended to the Court’s judgment. Of these, as noted, Judge Moore was actually in agreement with the majority on the question decided. His ‘dissenting’ opinion makes an eloquent case that every ‘law-governed’ state, including France, asserted the right in some cases to punish crimes occurring in its territory even though committed ‘by a person at the time corporeally present in another state’.85 He further concludes that ‘there was nothing in the law or in the reason of the thing’ compelling a conclusion that this principle should operate differently in respect of ships at sea than on land.86 This and his dissection of the various cases lead in support of the contrary conclusion was enough to lead him to agree with the majority.87 His dissent went only to the question of legality of passive personality jurisdiction at international law.88 (That is, while he considered that Turkey could have taken jurisdiction as a flag state over the incident, he considered that in practice it had relied on Article 6 of its Penal Code, which was not in conformity with international law as he understood it.) The dissent of Judges Loder, Weiss, Finlay, Nyholm and Altamira are considered in turn below. 81

ibid, 25–26. Crawford (n 13) 66. 83 Lotus (n 3) 28 (emphasis added). 84 S Talmon, ‘Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion’ (2015) 26 EJIL 417–443; A Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’ (2001) 95 AJIL 757–91. 85 Lotus (n 3) Judge Moore (dissenting opinion), 69–70. 86 ibid, 69. 87 National case law as to whether a flag State may prosecute the death of a national aboard its flag vessel where caused by a foreigner aboard a foreign vessel was contradictory. See eg Beckett ‘Criminal Jurisdiction Over Foreigners’ (n 64) on the difference in reasoning and result between R v Keyn (1876) 2 ExD 63 and US v Davis (1837) 2 Sumn 482. 88 ibid, 89–93. 82

104 Douglas Guilfoyle Judge Loder disagreed with the proposition that ‘every door is open unless it is closed by treaty or by established custom’ and thought rather that international law rested on ‘a general consensus of opinion’ among states.89 More concretely, Judge Loder prioritised territoriality, holding that exceptions to the principle should be proven and strictly construed.90 The criminal law of a state may extend to crimes and offences committed abroad by its nationals, since such nationals are subject to the law of their own country; but it cannot extend to offences committed by a foreigner in foreign territory, without infringing the sovereign rights of the foreign State concerned, since in that State the State enacting the law has no jurisdiction.91

Further, this jurisdiction could not be extended by the ‘subsequent presence’ of the accused in the territory of the prescribing state.92 He considered objective territoriality a legal fiction justified only in the case of intentional transboundary effects and disapproved entirely of any passive personality or protective doctrine.93 Judge Weiss also placed a paramount importance upon territoriality, holding that once the frontier is traversed ‘the right of states to exercise police duties and jurisdiction ceases to exist’.94 A state’s criminal jurisdiction is thus ‘based on and limited by’ territory.95 Further, he took the freedom of the high seas to warrant treating a ship as ‘a detached and floating portion of the national territory’ of its flag state with the consequence of excluding ‘any jurisdiction other than that of the flag’ other than in ‘certain exceptional cases’.96 Lord Finlay considered the application of the objective territorial principle to events having their effects aboard a vessel ‘a new and startling application of [the] metaphor’ that flag State jurisdiction could be analogised to territory.97 Without much reasoned explanation, though with some reference to authority, he considered it natural that maritime law would dictate in the event of a collision jurisdiction should rest with the flag state of the negligently navigated vessel or alternatively the state of nationality of the person responsible.98 He also disapproved of any argument based on protective jurisdiction.99 Judge Nyholm, proceeded from a similarly strict conception of territoriality as the other dissenters. In his view, the principle of exclusive flag state jurisdiction collapsed in the case of a collision and the ordinary principle of territorial jurisdiction applied.100 However, no positive rule permitting an exercise of extra-territorial jurisdiction in

Lotus (n 3) Judge Loder (dissenting opinion), 34. ibid 34–35. ibid, 35. 92 ibid. 93 ibid, 36–37. 94 Lotus (n 3) Judge Weiss (dissenting opinion), 44. 95 ibid, 45. 96 ibid, 46. 97 ibid, 52. 98 ibid, 53. 99 ibid, 56–57. 100 Lotus (n 3) Judge Nyholm (dissenting opinion), 62–63. 90 91

SS Lotus 105 such cases had yet emerged, though he conceded there was a ‘tendency towards a relaxation in the strict application’ of territoriality of criminal jurisdiction.101 As to the existence of a rule of international custom, Judge Nyholm took a somewhat more relaxed view than the majority holding that custom could be: a manifestation of international legal ethics which takes place through the continual recurrence of events with an innate consciousness of their being necessary.102

Judge Altamira proceeded from the proposition that ‘the jurisdiction of a state is territorial in character and that in respect of its nationals a state has preferential, if not sole jurisdiction’, and that exceptions to these principles had only been recognised in ‘extreme cases’.103 He was unpersuaded that the fact that a number of states had adopted similar legislation regarding the prosecution of offences committed extraterritorially could prove a rule of customary international law. At best, he considered that it might be evidence of the opinion of states on a question;104 the existence of a general agreement among states being the critical issue. Judge Altamira conducted a forensic review of relevant case law and national legislation to content himself that states generally only asserted extra-territorial criminal jurisdiction in particularly serious cases but held that there was insufficient uniformity to demonstrate the existence of an agreed rule. He found the ‘preponderating opinion’ of states to be against the assertion of jurisdiction in a case such as the Lotus and appeared to accord significant weight to the protests of France as evidence that it had not consented to any such rule.105 Such a strict version of positivism has not subsequently found favour in the case law of the ICJ where the consent or non-consent of the state ‘contesting the existence of [a] rule is not as decisive as we might expect’ in an ostensibly consentbased system.106 V. THE AFTERMATH OF SS LOTUS

It would be an understatement to say the PCIJ’s judgment in Lotus was not well received, either in practice or in the academy.107 As noted, the narrowest ground for the decision was that the collision had ‘taken place’ on the Turkish ship and was therefore an event within the jurisdiction of the flag state (by analogy with the objective territorial or effects principle).108 The decision ‘produced alarm among seafarers, and a long campaign against the rule’,109 which was thought to create the risk of multiple prosecutions for the same offence. 101

ibid, 63. ibid, 60. 103 Lotus (n 3) Judge Altamira (dissenting opinion), 95. 104 ibid, 96. 105 ibid, 103. 106 Crawford (n 13) 69, [65]. 107 See ibid 40 and 458; von Bogdandy and Rau ‘The Lotus’ (n 58) [1]. 108 RR Churchill and AV Lowe, The Law of the Sea, 3rd edn (Manchester, Manchester University Press, 1999), 208; cf DP O’Connell (I Sheared, ed), The International Law of the Sea, vol II (Oxford, Clarendon, 1984), 800. 109 P Malanczuk, Akehurst’s Modern Introduction to International Law (London, Routledge, 1997), 109. 102

106 Douglas Guilfoyle This resulted first in the International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in matters of Collisions and Other Incidents of Navigation 1952 (Brussels Penal Jurisdiction Convention).110 This provided in Article 1: In the event of a collision or any other incident of navigation concerning a sea-going ship and involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, criminal or disciplinary proceedings may be instituted only before the judicial or administrative authorities of the State of which the ship was flying the flag at the time …

Article 2 prohibited measures of arrest or detention of the vessel in such cases being taken by any authority other than the flag state. With only very minor amendments to the wording, these provisions were adopted in 1956 as Article 35 of the International Law Commission’s (ILC) Articles concerning the Law of the Sea.111 The ILC drafting was modified slightly in Article 11(1) of the 1958 Geneva Convention on the High Seas (High Seas Convention), in particular by further treating the question of disciplinary proceedings in an additional paragraph which also acknowledged the jurisdiction of licence issuing authorities over non-nationals.112 Article 11(1) of the High Seas Convention was subsequently reproduced almost verbatim as Article 97 of the UN Convention on the Law of the Sea.113 There appears to have been no significant debate on this point during either UNCLOS I or UNCLOS III.114 Given that the rule has been re-enacted in successive widely-adhered-to treaties—and without, it would appear, any debate on the principle involved—one may conclude that it now represents customary international law115 in respect of collisions, incidents of navigation and disciplinary matters. In other cases of criminal jurisdiction the rule enunciated in the Lotus case (events occurring aboard a ship are within the flag state’s criminal jurisdiction, even if those events commenced outside the ship) presumably remains unaffected. As noted throughout this chapter, academic commentary has tended to focus upon the ‘principle of freedom’ or ‘Lotus presumption’ and has often been scathing. Shortly after the case was decided Brierly rather acidly dismissed it as a: highly contentious metaphysical proposition of the extreme positivist school that the law emanates from the free will of sovereign independent States, and from this premiss … that restrictions on the independence of States cannot be presumed. Neither … can the absence of restrictions; for we are not able to deduce the law applicable to a specific state of facts from the mere fact of sovereignty or independence.116

110 International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision and Other Incidents of Navigation, 10 May 1952, 439 UNTS 233. 111 ILC, Report of the International Law Commission: Articles Concerning the Law of the Sea, UN Doc A/3159 (1956), GAOR 11th Sess Suppl 9, 8. 112 Resulting from a French proposal: UN Conference on the Law of the Sea I, Report of the Second Committee, UN Doc A/CONF.13/L.17 (1958), OR II, 96 [29]. 113 On the drafting history, see ibid [30]. 114 See: MH Nordquist, SN Nandan, S Rosenne (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, vol III (The Hague, Nijhoff, 1995) 167–68. 115 Following: ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/ Denmark), [1969] ICJ Rep 3, [71]–[74]. 116 Brierly ‘The “Lotus” Case’ (n 5) 155.

SS Lotus 107 Thus the general view of the Lotus case is that it represents the last gasp of an ‘old’ vision of international law based on the mere coexistence of sovereigns relatively unencumbered by legal relations in their dealings with each other, a view barely apposite in the 1920s and completely unsustainable now.117 This is the received wisdom; and it is, in part at least, wrong. Critics do not always appear to have considered the Lotus principle either in its immediate textual context or framed against the wider circumstances of the case. Indeed, given that the majority launch straight from formulating the Lotus principle into a discussion of the first-principle restrictions imposed upon states’ sovereign powers,118 it can hardly be concluded that the Court considered that the ‘principle of freedom’ was to be taken as a starting point in all cases. Indeed, if the Lotus principle means what it literally says, then the PCIJ in Lotus failed to apply it. As discussed above, other more satisfactory readings are available. In context, it may be construed as articulating either a residual principle to address non-liquets or as a proposition that sovereignty under international law (a state’s ‘independence’) consists of a bundle of rebuttable presumptions derogations from which may be proven but not assumed. This is not to say the Lotus presumption is actually in some revisionist sense good law or an early statement compatible with the modern ‘heads’ or ‘principles’ of jurisdiction approach. It is not. Nor, however, does it necessarily embody the dated two-dimensional vision of positivism for which it is commonly made the whipping boy. VI. SS LOTUS AND THE DEVELOPMENT OF INTERNATIONAL LAW

It would be bold to suggest that Lotus has had any crucial role in the subsequent development of public international law.119 Nonetheless, a number of propositions of law which the PCIJ outlined in Lotus were broadly correct and remain recognisable. Certainly as regards the law of jurisdiction it was in error when it said: Far from laying down a general prohibition to the effect that states may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every state remains free to adopt the principles which it regards as best and most suitable.120

The error, however, was largely one of emphasis and overstatement. It must be remembered that Turkey had pleaded that as a sovereign state it had a free choice as between several equally valid systems of criminal jurisdiction which it might adopt.121 117

eg Judges Higgins, Kooijmans and Buergenthal (n 1). Lotus (n 3) 18. 119 It has occasionally found favour: Case Concerning Right of Passage over Indian Territory (Merits), ICJ Reports 1960, 6, Judge Moreno Quintana (dissenting opinion) 91; North Sea Continental Shelf [1969] ICJ Rep 3, Judge Amoun (Sep Op) 101; Fisheries Jurisdiction (United Kingdom v. Iceland), [1974] ICJ Rep 3, Judge Dillard (Sep Op) 59; and in Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep 220 see: Judge Guillaume (Sep Op) 291–2, President Bedjaoui (Declaration) 271, and Judge Shahabuddeen (dissenting opinion) 426. See further: Spiermann (n 15) 253 fn 218. Note also: Arrest Warrant (n 1) Belgium: Counter-Memorial [3.3.29]. 120 Lotus (n 3) 19. 121 Esat (n 2) 116. 118

108 Douglas Guilfoyle These included at one end of the spectrum the system of strict territoriality and at the other the more controversial ‘protective’ system of jurisdiction (which it attributed to France). It also does an injustice to the Court to read the quote above without reading the passage which follows, emphasising that in practice states have adopted a great variety of systems of criminal law based on different principles of jurisdiction and have done so without protest. The Court further noted that various law reform and treaty drafting efforts to simplify or eliminate the ‘conflicting jurisdictions arising from the diversity of the principles adopted by the various states’ had not generally met with any success.122 In a sense, the PCIJ was refreshingly modern (or postmodern) in its willingness to accept the possibility of multiple concurrent jurisdictions as an inevitable feature of a system of law regulating the co-existence of sovereigns. The idea that international law must contain some rule to resolve questions of concurrent jurisdiction decisively in favour of one state or another remains illusory.123 The Court was thus on firm ground, and remains entirely right, when it stated: In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.124

As Crawford has noted, following the Arrest Warrant Case it is possible to suggest that the general rule is now that a state must be able to point to a permissive title in international law supporting an exercise of jurisdiction. However, he has accurately characterised this as a ‘shift in focus’ which is ‘largely cosmetic’.125 As discussed above, the method actually adopted by the PCIJ in Lotus was to enquire first into the existence of a permissive rule. Having found that the principle of territoriality applied by analogy, the more theoretical discussion to which a general presumption of freedom might have been relevant simply fell away. VII. CONCLUSIONS

How should we now assess the Lotus case? As already observed, there are effectively two Lotus cases: the most discussed version of the case, dealing with first principle understandings of international law; and, second, the case regarding the law of jurisdiction on the high seas, and criminal jurisdiction more generally. It is widely accepted that the Lotus principle is bad law. Attempts to suggest otherwise than that the PCIJ literally meant what it said (restrictions upon States’ independence cannot be presumed) are apt to be dismissed as revisionism.126 Nonetheless, this chapter has suggested those criticisms are somewhat overstated. Rather than being the high water mark of old-fashioned positivism, in the Lotus case we may see instead a turning point. It displays an earnest attempt to revise the dominant theory

122

Lotus (n 3) 19. Cryer et al, Introduction to International Criminal Law (n 66). 124 Lotus (n 3) 19. 125 J Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford, OUP, 2012) 458. 126 Mills ‘Rethinking Jurisdiction in International Law’ (n 9), 190. 123

SS Lotus 109 of international law (one increasingly at variance with the facts) and construct a law not merely of coexistence but cooperation. This much is plain on the bare text of the Court’s judgment. Further, it is worth noting that the Lotus principle was not actually applied in the Lotus case, or at least not in any decisive fashion. The driver of the decision was instead the proposition that the foremost restriction upon the sovereign power of the state is that it may not exercise jurisdictional power in another state’s territory absent a permissive rule. This is clearly not only still a good statement of law, but the cornerstone of the modern international system. It is present, for example, in the non-intervention principle and the prohibition on the use of force in the UN Charter.127 Further, the Court’s approach to the discernment of custom has clearly been influential in the development of the jurisprudence of the International Court of Justice. The two-element theory of custom has never been formally resiled from, even if it is open to debate whether it is a formula more honoured in the breach than the observance.128 As regards the Court’s conclusion that there could be concurrent jurisdiction on the high seas in matters of collusion, it has been noted that this is one of the few rules of custom—possibly the only one—discerned by the PCIJ or the ICJ which has been subsequently overturned in treaty law.129 This, however, tends to obscure the fact that absent the special rule introduced to deal with collisions the proposition remains good law. There are numerous instances in which states may have concurrent jurisdiction over events occurring upon the high seas going well beyond cases of universal jurisdiction such as piracy. These are usually explicitly created by treaty, drug interdiction and (historically) unauthorised radio broadcasting being clear examples.130 However, it is established that a flag state may waive its jurisdiction ad hoc in order to allow another state to prosecute offences discovered aboard its vessel irrespective of an underlying treaty arrangement.131 This strongly suggests that the correct understanding of exclusive jurisdiction on the high seas is not that it excludes other states from exercising prescriptive jurisdiction, but rather it is a guarantee against interference by foreign government vessels (enforcement jurisdiction).132 The conclusions of the PCIJ on point were, and remain, correct. Finally, however, it is worth noting the modernity of the Court’s conclusion that concurrent jurisdiction could exist as part of the natural state of affairs in the international order. In a sense, this conclusion is what caused the most alarm at the time. It still finds echoes in unjustified alarm over universal jurisdiction. Nonetheless, among numerous changes to the international legal order since 1927 we increasingly ‘live in a world of interpenetrating jurisdictional orders not [always] closely tied to territory’.133 In the latter, the PCIJ was, at the very least, prescient.

127

Bogdandy and Rau (n 58), 19.

128 ibid. 129

Crawford (n 13), 66 [60]. Guilfoyle (n 11) Chs 5 and 7. 131 ibid 72, 84, 119, 121, 248, 256, 287; see eg: Mevedyev v France, Application No 3394/03, Judgment of the Grand Chamber, 29 March 2010 [96]. 132 Arrest Warrant (n 1) Judge ad hoc Van Den Wyngaert (dissenting opinion) 169, [49]. 133 D Guilfoyle, ‘Reading The City and the City as an International Lawyer: Reflections on Territoriality, Jurisdiction And Transnationality’ (2015) 4 London Review of International Law 195, 207. 130

110

6 Island of Palmas (Netherlands v United States of America) (1928) EIRIK BJORGE

T ISSUE IN Island of Palmas1 was the sovereignty over a miniscule island called the Island of Palmas, or the Island of Miangas,2 in the north of the archipelago which today constitutes Indonesia. The 700 inhabitants of the coconut-palm-strewn island mainly exported dried coconut kernels and mats.3 From a commercial, as well as military, point of view the island’s value was, like the island itself, small.4 Nonetheless, when on 21 January 1906 General Leonard Wood, US Governor of the Province of Moro, made landfall on the island, he was dismayed to find there a Dutch flag flying on the shore as well as on the dinghy that came out to greet him. ‘As far as I could ascertain,’ reported General Wood when he had later left the island for Zamboanga in the Philippines, ‘the Dutch flag has been there for the past fifteen years’; indeed ‘one man said he thought it had always been there’.5 Although it surfaced only in 1906, the dispute as to the sovereignty over the island had a long backstory. Spain had claimed to have discovered the Island of Palmas in the sixteenth century, possibly as early as 1526, the island having at that time been ‘seen’ by a Spanish explorer.6 The Spaniards never landed or made any contact with the inhabitants of the island; indeed, no signs of taking possession or of administration by Spain had been shown or even alleged to have existed on the part of Spain. Having discovered the island, Spain had then, by virtue of the Treaty of Paris of 10 December 1898,7 ceded the island to the United States. The United States, by reason of the Treaty of 1898, founded its argument on the Spanish discovery of the island in the sixteenth century. The sovereign rights of Spain over the island were,

Island of Palmas (Netherlands, United States of America) (1928) 2 RIAA 829, (1928) 4 ILR 3. chosen English as the language of the arbitration, the sole arbitrator elected to use English geographical names, ‘as shown on the British Admiralty Chart 2575’; the name of the case, therefore, is Palmas rather than Miangas. 3 WJB Versfelt, The Miangas Arbitration (Utrecht, Kemink, 1933) 1–2. 4 ibid 2; FK Nielsen, The Island of Palmas Arbitration before the Permanent Court of Arbitration at the Hague (Washington, DC, Government Printing Office, 1928) 1. 5 Versfelt, The Miangas Arbitration (n 3) 4. 6 Island of Palmas (Netherlands, United States of America) (1928) 2 RIAA 829, 844–45. 7 Treaty of Peace between Spain and the United States, 10 December 1898, 187 CTS 100. 2 Having

112 Eirik Bjorge in the submission of the United States, confirmed by the Treaty of Munster of 1648.8 Nothing had, in the view of the United States, occurred which operated to invalidate the title thus acquired by Spain which was later ceded to the United States in the 1898 Treaty.9 Against this background, the United States argued that it did not need to prove itself that it had exercised sovereignty over the island. As to the question of the intertemporal law, that is, whether the law to be applied was that of the sixteenth century or that of later centuries, the United States had argued that only the law as understood when the island was first discovered could be taken into account, citing a communication by Secretary of State Upshur to Mr Everett, American Minister to Great Britain, of 9 October 1843: How far the mere discovery of a territory which is either unsettled, or settled only by savages, gives a right to it, is a question which neither the law nor the usages of nations has yet definitely settled. The opinions of mankind, upon this point, have undergone very great changes with the progress of knowledge and civilization. Yet it will scarcely be denied that rights acquired by the general consent of civilized nations, even under the erroneous views of an unenlightened age, are protected against the changes of opinion resulting merely from the more liberal, or the more just, of after time. The rights of nations to countries discovered in the sixteenth century is to be determined by the law of nations as understood at that time, and not by the improved and more enlightened opinion of three centuries later.10

The United States furthermore made reference to what Hall observed in his Treatise of International Law, that is, that ‘[i]n the early days of European exploration it was held, or at least every state maintained with respect to territories discovered by itself, that the discovery of previously unknown land conferred an absolute title to it upon the state by whose agents the discovery was made’.11 The argument was that Spain’s title should, against this background, not be judged by the view of a later date as to the necessity of exacting more solid ground for title than those sanctioned in the past, that is, the view that discovery would give only an inchoate title, to be perfected by permanent occupation and administration.12 Furthermore, the United States argued that since the island formed a geographical unity with the archipelago of the Philippines, it was unnecessary to impose on the sovereign of the totality of that territory to prove that it had exercised effective sovereignty of so small a unit. Without relying in terms on the principle of contiguity as a means by which to establish its title, the United States seemed to try to lighten its burden of proof as to the sovereignty over the island by reference to this somewhat nebulous concept.13

Treaty of Peace between Spain and the Netherlands, 30 January 1648, 1 CTS 1. Island of Palmas Arbitration (n 4) 2–3. JB Moore, Digest Vol I, 259; cited in Memorandum of the United States 52–53; Nielsen (n 4) 3. 11 A Pearce Higgins, Hall’s Treatise on International Law, 7th edn (Oxford, Clarendon Press, 1917) 104 (emphasis added). 12 Nielsen (n 4) 30. 13 F de Visscher, ‘L’arbitrage de l’Île de Palmas (Miangas)’ (1929) 10 Revue du droit international et de législation comparée 735, 737. 9 Nielsen,

Island of Palmas 113 The Netherlands, for its part, claimed that it had exercised sovereignty on the island up until the time at which the dispute crystallised between the parties. The Dutch Government contested the titles of acquisition on which the United States founded its argument, arguing that the Spanish discovery had never in the first place been proved; if Spain had indeed had a title, such title had been lost. It also expressed profound disagreement with the principle of contiguity. Represented in the period in question by the Dutch East India Company, the Netherlands argued that, by reason of agreements entered into with certain local chieftains of the Sangi Islands, establishing Dutch suzerainty over the territories of these chieftains, including the Island of Miangas, it had acquired and possessed rights of sovereignty over the island since at least 1677, probably as far back as 1648. On the Dutch argument, its claim to title, founded on a continuous and peaceful display of state authority over the island, must prevail over a title of acquisition of sovereignty which had not been followed by actual display of state authority.14 As foreshadowed above, up until 1906 no dispute had arisen between the United States and Spain on the one hand and the Netherlands on the other in connection with the Island of Palmas.15 On the heels of General Wood’s landfall, the United States’ Ambassador at The Hague, on 31 March 1906, asked of the Dutch Government what its understanding was as to the status of the Island of Palmas. The Netherlands Ministry of Foreign Affairs, in a note of 17 October 1906, replied, stating that on several grounds the island, referred to as Miangas rather than Island of Palmas by the Dutch, formed a part of Dutch possessions.16 This diplomatic exchange continued fruitlessly for almost 20 years. On 23 January 1925, the two governments, on the basis of a bilateral arbitration convention from 1908,17 signed a compromis in which they agreed to refer to settlement by a sole arbitrator the intractable question of the sovereignty over the island.18 The parties agreed on Max Huber, the then president of the Permanent Court of International Justice, as sole arbitrator of a tribunal set up under the auspices of the Permanent Court of Arbitration. It was agreed that: ‘[t]he sole duty of the arbitrator shall be to determine whether the Island of Palmas (or Miangas) in its entirety forms a part of territory belonging to the United States of America or of Netherlands territory’.19 All of the proceedings would be in writing: no oral hearing would take place.20 I. CLAIMS TO LANDMARK STATUS

As one Dutch commentator observed shortly after the award had been handed down, ‘[i]t cannot be denied that the material importance of the Island of Miangas 14 Versfelt,

The Miangas Arbitration (n 3) 6. Island of Palmas (n 6) 836. Versfelt (n 3) 5. 17 Arbitration Convention between the Netherlands and the United States, 2 May 1908, 207 CTS 7. 18 MA Mathews, ‘Chronicle of International Events for the Period November 16, 1924–February 15, 1925’ (1925) 19 AJIL 382, 389. 19 Island of Palmas (n 6) 832. 20 MO Hudson, ‘The Permanent Court of Arbitration’ (1933) 27 AJIL 440, 457. 15 16

114 Eirik Bjorge is by no means in proportion to the trouble taken by the litigating Powers and to the time taken to settle the dispute’.21 In international law, as in other fields, great things come from small beginnings:22 Island of Palmas has justly been referred to as ‘one of the most influential arbitral decisions ever’.23 Handed down in 1928, ‘the celebrated Award of Judge Huber in the Island of Palmas case’24 in short order became a classic of international law, and has remained so in the jurisprudence of international courts and tribunals.25 This was because Sole Arbitrator Huber, having been invited in the pleadings of the two parties to address certain fundamental questions of international law, missed no opportunity to set out his view of them in a way which clearly shaped the contours of a number of principles which at the beginning of the twentieth century had no more than been limned by other international courts and tribunals. Indeed, according to Fernand de Visscher, the Sole Arbitrator’s account of the concept of territorial sovereignty, the conditions of acquisition and of conservation, and the burden of proof, amounted to nothing less than a remarkable feat of doctrinal exposition.26 The two propositions to which the Award gives expression in its doctrinal frontispiece—one concerning the nature of sovereignty; the other, the intertemporal law—have both taken their rightful place in the mainstay of international law. They could also both be thought to be paradoxical. The chapter will deal with them in turn, seeking to shed light on the paradoxes which they contain within them. II. SOVEREIGNTY

First, the Award establishes that state sovereignty ‘signifies independence’ and ‘exclusive competence’, such that in international law sovereignty is ‘the point of departure in settling most questions that concern international relations’.27 From the fact that sovereignty is a signifier rather than a legal norm or institution, it follows that appeals to sovereignty, for the settlement of legal disputes, must be

Versfelt (n 3) 147. cf Zechariah 4:10. 23 O Diggelmann, ‘Max Huber (1874–1960)’ in B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (Oxford, OUP, 2012) 1157. 24 R Jennings and A Watts, Oppenheim’s International Law Vol I, 9th edn (London, Longman, 1992) 708–09. 25 See, eg, Legal Status of Eastern Greenland, Judgment (1933) PCIJ Series A/B No 53, 45; Rann of Kutch (India/Pakistan) (1968) 27 RIAA 1, 554–55; Canton of Valais v Canton of Tessin (1980) 75 ILR 114, 117; Eritrea v Yemen (Phase One: Territorial Sovereignty and Scope of the Dispute) (1998) 114 ILR 1, 117–18, [450]–[454]; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) [2007] ICJ Rep 659, 723, [214]; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) [2008] ICJ Rep 12, 36–37, [67]. 26 de Visscher ‘L’arbitrage de l’ Île de Palmas (Miangas)’ (n 13) 738. 27 Island of Palmas (n 6) 838. See also: Status of Eastern Carelia (1923) PCIJ Series B No 5, 27; United Nations Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States, Section 3 Res 2625 (XXV); reprinted in (1970) 9 ILM 1292, 1296; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, [1986] ICJ Rep 14, 106–7, [202]–[203]. 22

Island of Palmas 115 accompanied by careful examinations of what exactly sovereignty signifies.28 Yet the Award also brings out the importance of coexistence, stressing that international law ‘has the object of assuring the coexistence of different interests which are worthy of legal protection’.29 Thus, on the one hand, there is sovereignty: Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organisation of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.30

Thus conceived, the requirement of effectiveness is not only a logical consequence of the nature of territorial sovereignty: it is also a requisite element of any mode of acquisition of territorial sovereignty and its maintenance.31 On the other, there is the coexistence of sovereign states: ‘International law, like law in general, has the object of assuring the coexistence of different interests which are worthy of legal protection’.32 A leading international law writer such as Guggenheim made of this statement the centrepiece of his theory of international law, stating at the outset of his treatise on public international law that: ‘the original core of public international law is constituted by the rights and obligations which follow therefrom’.33 Island of Palmas makes plain that with sovereignty, as that concept is understood in international law, comes not only certain rights and freedoms for states—but also obligations.34 A similar change was occurring in the domestic law of especially continental legal systems, where in the 1910–20s what could be termed a positive concept of the sovereignty of the state was crystallising.35 It is clear, for example, in the French law of the inter-war period, as exemplified by the work of Léon Blum, who left an indelible mark on French public law first as a judge for more than 20 years in the Conseil d’État, and later as a parliamentarian and prime minister in charge of several legislative reforms. Following the conclusions of then commissaire du gouvernement Blum, the Conseil d’État36 in Compagnie générale française des

28 V Lowe, ‘Sovereignty and International Economic Law’ in W Shan, P Simons and D Singh (eds), Redefining Sovereignty in International Economic Law (Oxford, Hart, 2008) 77. 29 Island of Palmas (n 6) 870. 30 ibid, 838. 31 R Ago, Il requisito dell’effettività dell occupazione in Diritto internazionale (Rome, Anonima Romana Editorale, 1934) 25–26. 32 ibid, 870. 33 P Guggenheim, Traité de Droit international public tome I (Geneva, Librairie de l’Université, 1953) 2 (‘Le noyau original du droit des gens est constitué par les droits et devoirs qui en résultent.’). 34 M Giuliano, I diritti e gli obblighi degli stati (Milan, CEDAM, 1956) 79; V Lowe, ‘Regulation or Expropriation?’ (2002) 55 CLP 447, 451. 35 The development was a slower one in English law: S Sedley, Lions under the Throne: Essays on the History of English Public Law (Cambridge, CUP, 2015) 23–69. 36 Supreme Court for administrative law matters, as well as legal advisor to the Executive.

116 Eirik Bjorge t ramways held that,37 although the Government had entered into certain c oncession contracts with a tramway company, the Government nevertheless retained a residual inalienable sovereignty (‘pouvoir de souveraineté’), certain police powers (‘pouvoir de police’) to make changes to the contracts in light of the needs of society.38 The Government could not be taken to have abandoned its right to regulate, as ‘the state remains the guarantor of the execution of the provision of the service vis-à-vis the whole citizenry’.39 Its rights to make unilateral changes to the concession contracts was found in the general interest.40 Therefore, on this conception of the sovereignty of the state, the obverse to these powers of the Government, or to this particular negative aspect of sovereignty, was that the state was conceived of ‘as a public service, an agency providing services rather than exercising sovereignty’ only in the negative sense.41 Thus Compagnie générale française des tramways exemplifies the move from a private law to a public law conception of state contracts within domestic law. The domestic law governing railway concessions was more than the synallagmatic law of contract. It was a law that, going beyond the concept of the night-watchman state of the nineteenth century, took into consideration the exigencies of providing, in a positive sense, state services to the individuals over whom the state exercises sovereignty. This was prefigured too in the Dissenting Opinion of Judge Moore in SS Lotus,42 where Judge Moore observed that: ‘a nation possesses and exercises within its own territory an absolute and exclusive jurisdiction’; ‘[t]he benefit of this principle equally enures to all independent and sovereign States, and is attended with a corresponding responsibility for what takes place within the national territory’.43 Thus, in Island of Palmas, sovereignty involves not merely the exclusive right to engage in the activities of a state within a given territory, but also, as a corollary, the obligation to protect within that territory the rights of nationals of other states: Territorial sovereignty cannot limit itself to its negative side, ie to excluding the activities of other States; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum protection of which international law is the guardian.44

37 L Blum, ‘Conclusions’ in Conseil d’Etat 11 March 1910 Compagnie générale française des t ramways Case No 16178, reported in (1910) 17 Revue du droit public 274–84. 38 The commissaire du gouvernement entered the following caveat in relation to the concept of police powers as an expression of state sovereignty, however: ‘quand il s’agit de services publics de transports, ce pouvoir n’est pas seulement le commandement vague général, indéterminé, variable suivant les cas et les nécessites qu’on appelle le pouvoir de police. C’est bien un droit de règlementation très précis, très défini, qui est conféré par des textes et repose sur des textes’: ibid, 275. 39 ibid. 40 Conseil d’Etat 11 March 1910 Compagnie générale française des tramways Case No 16178 (‘l’intérêt du public’); Conseil d’Etat 2 February 1987 Société TV 6 (‘des motifs d’intérêt général’). 41 P Birnbaum, Léon Blum: Prime Minister, Socialist, Zionist (New Haven, Yale University Press, 2015) 75–76. 42 SS Lotus PCIJ (1927) Series A No 10, 68. 43 See Giuliano, I diritti e gli obblighi degli stati (n 34) 79. 44 Island of Palmas (n 6) 839.

Island of Palmas 117 This dichotomy is what was also developed by the majority of the Permanent Court in Lotus (decided by the casting vote of President Huber), when it stressed that international law governs relations between independent states and that, equally importantly, the rules of international law are established ‘in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims’.45 Huber seems to have taken these aspects of sovereignty into consideration in making his determination: If, as in the present instance, only one of two conflicting interests is to prevail, because sovereignty can be orientated to but one of the Parties, the interest which involves the maintenance of a state of things having offered at the critical time to the inhabitants of the disputed territory and to other States a certain guarantee for the respect of their rights ought, in doubt, to prevail over an interest which—supposing it to be recognized in international law—has not yet received any concrete form of development.46

Transfer of sovereignty thus has little in common with transfer of property in domestic private law.47 The Award brings out the importance in international law of the contribution which a state actually makes to a stable and constructive order of affairs as against the negative insistence on a historic right, dating back to a period in history when the purely proprietary conception of sovereignty prevailed.48 This theme has become a part of the grammar of international law. The Tribunal in Rann of Kutch held that: Territorial sovereignty implies, as observed by Judge Huber in the Island of Palmas case, certain exclusive rights which have as their corollary certain duties. In adjudicating conflicting claims by rival sovereigns to a territory, all available evidence relating to the exercise of such rights, and to the discharge of such duties, must be carefully evaluated with a view to establishing in whom the conglomerate of sovereign functions has exclusively or predominantly [been] vested.49

This meant that, in determining whether the Rann of Kutch belonged to India or Pakistan, the Tribunal would look to which of those two states, or their forerunners, had on the one hand, ‘in actual fact enjoyed the rights of sovereignty over the disputed territory’ and, on the other, ‘which of them carried out the burden of discharging the duties inherent in sovereignty in that territory at each relevant period of time’.50 Similarly, the ICSID Tribunal in Antoine Goetz referred, in relation to the concept of sovereignty, to ‘le principe, énoncé par Max Huber dans la sentence arbitrale relative à l’ Île de Palmas, selon lequel la souveraineté territorial ne comporte pas seulement le droit exclusive de l’exercice des activités étatiques mais aussi le corollaire de l’obligation de protéger sur le territoire étatique les droit des nationaux des autres Etats’.51 45

SS Lotus (n 42) 18. Island of Palmas (n 6) 870. de Visscher (n 13) 754 (‘la notion de souveraineté n’est plus celle de jadis’). 48 Memorial of the United Kingdom of 3 March 1952, Minquiers & Ecrehous, 105; Giuliano, I diritti e gli obblighi degli stati (n 34) 147. 49 Rann of Kutch (n 25) 554. 50 ibid, 554–55. 51 Antoine Goetz & Others v Republic of Burundi ICSID ARB/95/3 (Weil, President; Bedjaoui; Bredin) [65]. 46 47

118 Eirik Bjorge It is part of the legacy of Island of Palmas that it showed clearly how international law looks to whether a state has in fact discharged the duties inherent in sovereignty. ‘[I]nternational arbitral jurisprudence in disputes on territorial sovereignty,’ observed the Sole Arbitrator, ‘would seem to attribute greater weight to—even isolated—acts of display of sovereignty than to continuity of territory, even if such continuity is combined with the existence of natural boundaries’.52 In this regard, he cited in terms the case of Alpe di Craivarola53 where, in 1874, Sole Arbitrator Marsh, adjudicating on whether the alpine border area of the Alp of Craivarola belonged to Switzerland or to Italy, referred to the effective use of the land by villagers from certain Italian communes. Amongst other things, the villagers could show that they had, as private individuals, purchased the pastureland in question as far back as 1554; that they, together with their officials, had planted border marks around the pastureland; and that they ‘had the incontestable possession and use of certain parts of the Alp of Cravairola for nearly four centuries, and of other parts of the same period of much longer still’.54 In the aggregate these acts amounted to display of sovereignty that was held to be more important than the continuity of territory and alleged principle according to which territorial limitation in mountainous regions should follow the watershed of rivers in the region, to which Switzerland, in its submissions, was able to point. Another case which could be thought to have been covered by ‘international arbitral jurisprudence in disputes on territorial sovereignty’,55 but which was not mentioned by the Sole Arbitrator in terms, is the Meerauge award,56 where, dealing with the issue of possession from time immemorial, the Tribunal observed that: ‘[p]ossession from time immemorial is understood as the form of possession where no evidence can be adduced that the situation was ever different and no living person has ever heard of a different state of affairs’.57 Importantly, however, the Tribunal went on to observe that: ‘[s]uch possession must also be unbroken and uncontested, and it is self-evident that possession so defined must have continued up to the present—that is, up to the time at which the dispute leading to the conclusion of an arbitration agreement occurred.’58 By positing that possession—‘Besitz’ in the German original—must continue, the Meerauge award arguably prefigured the conclusion in Island of Palmas in so far as the position set out by Sole Arbitrator Huber was beginning to crystallise already in Meerauge that an initial claim to title is somehow not good enough if ‘possession’ is not continued up to the present.

Island of Palmas (n 6) 855. Alpe di Craivarola in H La Fontaine, Pasicrisie internationale: histoire documentaire des arbitrages internationaux (Berne, Stämpfli, 1902) 201–9 (Sole Arbitrator GP Marsh); translation printed in Decision of arbitration concerning the definite fixing of the Italian–Swiss frontier at the place called Alpe de Cravairola (1874) 28 RIAA 141. 54 (1874) 28 RIAA 141, 147; Pasicrisie internationale 201, 204. 55 Island of Palmas (n 6) 855. 56 Meerauge Arbitral Award (Austria/Hungary) (1902) 3 Nouveau recueil général de traités, 3rd Series, 71; (1902) 28 RIAA 379 (see Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (n 25) 32; cf Sep Op Judge ad hoc Sreenivasa Rao, 157, [9]). 57 (1902) 3 Nouveau recueil général de traités, 3rd Series, 71, 80; (1902) 28 RIAA 379, 391. 58 ibid. 53

Island of Palmas 119 By making the point about effective possession so clearly, Huber brought out a broader principle which was crystallising in the jurisprudence of international courts and tribunals;59 but he went further, in that he would also point up the importance of the activities of the state vis-à-vis the individuals living on the territory over which the state claims to have sovereignty. Shortly after the Award in Island of Palmas had been handed down, Lauterpacht observed that any international court or tribunal has at its disposal that source of judicial activity which consists in the realization of the purpose of the law, namely, in finding, in case of doubt, solutions most conducive to the benefit of the community as a whole and to the necessity of stable and effective legal relations between its members.60

The operation of this method, he continued, is illustrated by the principal reasons which caused international tribunals to recognise extinctive and acquisitive prescription, that is, considerations of stability, of the necessity for maintaining, so far as possible and equitable, the established order of things, and of discouraging endless litigation. It was against this background, Lauterpacht argued, that the arbitrator in Island of Palmas, when stressing the importance of peaceful, continuous, and effective display of state activity as a title of acquisition of sovereignty, expressed the view that the recognition of the effect of prescription is necessary in view of the particular needs of international society.61 Strikingly similar reasoning had informed the determination in 1909 by the Permanent Court of Arbitration in Grisbadarna,62 where the Tribunal observed that: ‘[i]t is a settled principle of the law of nations that a state of things which actually exists and has existed for a long time should be changed as little as possible’.63 What the Tribunal then went on to say was of no less importance,64 namely, that this was all the more so when individuals and their rights vis-à-vis the state were involved: [t]his rule is specially applicable in a case of private interests which, if once neglected, can not be effectively safeguarded by any manner of sacrifice on the part of the Government of which the interested parties are subjects.65

59 H Lauterpacht, The Development of International Law by the International Court (Cambridge, CUP, 1958) 241; JHW Verzijl, International Law in Historical Perspective VIII: Inter-State Disputes and Their Settlement (Leyden, AW Sijthoff, 1976) 307. 60 H Lauterpacht, The Function of Law in the international Community (Oxford, Clarendon Press, 1933) 131. 61 ibid. 62 Affaire des Grisbadarna (Norvège/Suède) (1909) 11 RIAA 147; Grisbadarna (Maritime Boundary Dispute between Norway and Sweden) (1910) 4 AJIL 204. 63 Grisbadarna (Maritime Boundary Dispute) (n 62) 233 (emphasis added). (original: ‘dans le droit des gens, c’est un principe bien établi, qu’il faut s’abstenir autant que possible de modifier l’état des choses existant de fait et depuis longtemps’—Affaire des Grisbadarna (n 62) 161). See H Lauterpacht, Private Law Analogies and Sources of International Law (London, Longman, 1927) 264; Lauterpacht, The Function of Law (n 60) 131. 64 Lauterpacht failed to mention this important point: H Lauterpacht, The Function of Law (n 60) 131; he focused on the private law aspects of international law rather than the public law ones: cf Lauterpacht’s Private Law Analogies (n 63). 65 Grisbadarna (Maritime Boundary Dispute) (n 62) 234.

120 Eirik Bjorge This was exactly the point which would take on such importance in Island of P almas, where, distancing himself from a private law concept of sovereignty-as-ownership, negative sovereignty, the Sole Arbitrator considered himself bound to conceive of sovereignty as a fundamentally concrete concept, positive sovereignty: Although municipal law, thanks to its complete judicial system, is able to recognize abstract rights of property as existing apart from any material display of them, it has none the less limited their effect by the principles of prescription and the protection of possession. International law, the structure of which is not based on any super-State organisation, cannot be presumed to reduce a right such as territorial sovereignty, with which almost all international relations are bound up, to the category of an abstract right, without concrete manifestations.66

Already in the late 1920s sovereignty could no longer be conceived as a pure juridical abstraction, as a prerogative that did no more than to confer on a state the right to exclude the activity of every other state in a given region.67 It must instead be conceived of as a positive function the raison d’être of which is to be found in the general interest.68 As the Sole Arbitrator in Island of Palmas put it: Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other States; for it serves to divide between nations the space upon human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian.69

If this anthropocentric view of the concept of state sovereignty did not quite match the Lauterpachtian proposition that ‘[t]he individual is the ultimate unit of all law, international and municipal’,70 it did delineate with unmatched clarity the new— positive—concept of sovereignty that had been taking shape in the international law of the nineteenth and fledgling twentieth century. Furthermore, the Island of Palmas dictum according to which a state could not expect to benefit from negative sovereignty if it had not shown itself to be prepared to exercise positive sovereignty arguably finds expression in the jurisprudence of the European Court of Human Rights, which in Al-Skeini71 set out the rules governing extraterritorial application of the European Convention on Human Rights.72 The concepts of negative and positive sovereignty are closely interlinked and mutually dependent on one another. It is clear from Al-Skeini that a state cannot expect to be allowed to show, or purport to show, positive sovereignty (to the extent that the United Kingdom visited upon the Iraqi population certain human rights abuses), 66

Island of Palmas (n 6), 839. de Visscher (n 13) 740. See also Compagnie générale française des tramways (n 37). 69 Island of Palmas (n 6) 839. 70 H Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 BYIL 1, 27. Criticised in LC Green, ‘Book Review, International Law and Human Rights. By H. Lauterpacht’ (1951) 4 ILQ 126, 126–28; M McDougal, ‘Book Review, International Law and Human Rights. By H. Lauterpacht’ (1951) 60 Yale LJ 1051; J Crawford and CA Miles, ‘Four Ways of Thinking about the History of International Law’ in JC Sainz-Borgo and others (eds), Liber Amicorum in Honour of a Modern Renaissance Man, His Excellency Gudmundur Eiriksson (New Dehli, Universal Law Publishing 2017) 265, 287. 71 Al-Skeini v United Kingdom (App No 55721/07) 7 July 2011, (2011) 147 ILR 181. 72 4 November 1950, 213 UNTS 222. 67 68

Island of Palmas 121 without international law also imposing upon it the duties that come with such displays of sovereignty. In Island of Palmas Spain, desirous of sovereignty over the territory in question, had not been prepared to exercise positive sovereignty and therefore was not in law granted sovereignty over it. In Al-Skeini, conversely, the United Kingdom, which did not want to be held to exercise jurisdiction over the territory in question, had been nothing if not prepared to exercise positive sovereignty, and therefore in law was held to exercise jurisdiction over the impugned acts taking place at its hands in the territory.73 This, too, serves to bring out the premium put by Huber’s approach on the human beings on the territory in question, ‘in order to assure them at all points the minimum of protection of which international law is the guardian’.74 III. THE INTERTEMPORAL LAW

Secondly, as was seen above, the existence of the rights of Spain, and its successor, to title would have to follow the conditions required by the evolution of law. Island of Palmas establishes that ‘a juridical fact must be appreciated in the light of the law contemporary with it’.75 Nonetheless, ‘[t]he same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestations, shall follow the conditions required by the evolution of law’.76

Further: C McLachlan, Foreign Relations Law (Cambridge, CUP, 2014) 333–36. Island of Palmas (n 6) 839. 75 ibid 845. Also: Enterprize in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I (Paris, Pedone, 1905) 703; Hermosa and Créole in de Lapradelle and Politis (ibid) 703–04; Lawrence in de Lapradelle and Politis (ibid) 740–41; Volusia in de Lapradelle and Politis (ibid) 741; The Pious Fund Case (United States v Mexico) (1902) 9 RIAA 1, 11–14; Cape Horn Pigeon (USA v Russia) (1902) 9 RIAA 63, 64; James Hamilton Lewis (USA v Russia) (1902) 9 RIAA 66, 67 and 69; CH White (USA v Russia) (1902) 9 RIAA 71, 72; Kate & Anna (USA v Russia) (1902) 9 RIAA 76, 77; Pelletier in JB Moore, History and Digest of International Arbitrations to which the United States has been a Party II (Washington, DC, Government Printing Office, 1898) 1750; SS Lisman (USA v United Kingdom) (1937) 3 RIAA 1767, 1771; Mixed Claims Commission: Sambaggio case (Italy v Venezuela) (1903) 10 RIAA 499, 522; Case concerning Right of Passage over Indian Territory (Merits) Judgment [1960] ICJ Rep 6, 37; Société Générale in respect of DR Energy Holdings Limited and Empresa Distribuidora de Electricidad del Esta SA v Dominican Republic Award on Preliminary Objections to Jurisdiction (LCIA Case No UN 7927) (Orrego Vicuna, President; Doak Bishop; Cremades), [86]; Ping AN Life Insurance Company of China, Ltd v Belgium (ICSID Case No ARB/12/29) Award (Lord Collins, President; Sands; Williams), [135]; Jan de Nul NV v Arab Republic of Egypt (ICSID Case No ARB/04/13) Award (Kaufmann-Kohler, President; Mayer; Stern), [132]. 76 ibid 845. Also: Portendick in de Lapradelle and Politis, (ibid), 530–31; Sentence arbitrale relative aux requêtes de la Grande-Bretagne et du Portugal sur certains territoires de la côte Est de l’Afrique appartenant autrefois aux Rois de Tembe et Mapoota, incluant les îles de Inyack et Éléphant (Baie de Delagoa ou Lorenzo Marques) (1875) 28 RIAA 157, 160; Carolines arbitration, 22 October 1885, printed in MC Calvo, Le droit international: théorique et pratique, 6th edn (Paris, Pedone 1888) 420–21; Veloz-Mariana in H La Fontaine, Pasicrisie internationale: histoire documentaire des arbitrages internationaux (Berne, Stämpfli, 1902) 26; Guiana Boundary case (Brazil/Great Britain) (1904) 11 RIAA 11, 21–22; Nationality Decrees Issued in Tunis and Morocco (1923) PCIJ Series B No 4, 24; Island of Clipperton (Mexico v France) (1931) 2 RIAA 1105; Minquiers & Ecrehos Case (France/United Kingdom), Judgment [1953] ICJ Rep 47; Western Sahara, Advisory Opinion [1975] ICJ Rep 12, 68; Kasikili/ Sedudu Island (Botswana/Namibia), Judgment [1999] ICJ Rep 1045, [25] and [89]. 74

122 Eirik Bjorge In Reuter’s words, Island of Palmas gave expression to the rule generally r ecognised in domestic law that legal situations come into being validly in accordance with rules that are in operation at a certain given point in time but depend, for their continued existence, on rules which later come into existence.77 The Sole Arbitrator explicitly tempered the second limb of its test by adding the rider that the second limb would not be brought to bear in the case of ‘territories in which there is already an established order of things’.78 This may obviously be a difficult question of degree. As Crawford would later observe, ‘the two elements of the Island of Palmas case are less antithetical than they may seem; stability due to the creation, and flexibility due to evolution in the existence of rights, should be conceived as complementary principles’.79 The Permanent Court of International Justice in Eastern Greenland treated continuity of display of state authority as an integral element in the Danish title to the territory.80 The Court did not regard it as sufficient that Denmark established its sovereignty at a particular moment in history. Instead it traced the exercise of sovereignty through successive periods until the critical date.81 The two-limbed principle of intertemporality was not a new one. Early arbitrations settled on the heels of the gradual development of the customary rules concerning discovery and occupation showed the gradual evolution of international law in respect of the acquisition of sovereignty from the original legal sufficiency of discovery or symbolic occupation to the requirement of the effectiveness of the occupation.82 The early jurisprudence of international tribunals, and the writings of the most highly qualified publicists, hesitated at first as to how to grapple with the passage of time and intertemporality. Westlake for example observed that ‘titles must be judged by the state of international law at the time when, if at all, they arose’.83 It would be wrong, however, to think that the rule enunciated in Island of Palmas was new. In the Carolines arbitration,84 something very much akin to the principle of intertemporal law had been relied on.85 The particular pertinence of this case stems from the fact that the parties had presented the arbitrator with almost exactly the same question as would arise Island of Palmas. The Carolines arbitrator, Pope Leo XIII, decided in almost the exact same vein as Sole Arbitrator Huber would do

77 P Reuter, ‘Cours générale de droit international public’ (1961) 103 Hague Recueil 554 (‘la règle (généralement admise dans les droits nationaux) que les situations juridiques se créent validement suivant les règles en vigueur à un moment donné, mais qu’elles doivent pour se perpétuer satisfaire ultérieurement à de nouvelles règles qui seraient établies’). 78 Island of Palmas (n 6) 839. 79 J Crawford, State Responsibility: The General Part (Cambridge, CUP, 2013) 242. 80 Legal Status of Eastern Greenland (n 25) 22. 81 H Waldock, ‘Disputed Sovereignty in the Falklands Islands Dependencies’ (1948) 25 BYIL 311, 321. Also: Minquiers & Ecrehos Case (n 76). 82 Verzijl, International Law (n 59) 307. 83 J Westlake, International Law I, 2nd edn (Cambridge, CUP, 1910) 114. 84 Carolines arbitration, 22 October 1885, printed in MC Calvo, Le droit international: théorique et pratique, 6th edn (Paris, Pedone, 1888) 420. 85 ibid, 420–21.

Island of Palmas 123 later in Island of Palmas: Spain had in the sixteenth century discovered the islands making up the Carolines and Palaos archipelago; it had founded its sovereignty over the islands by the principles of international law then in force. It was uncontested that only Spain had at the time acted so as to obtain the right to title according to the sixteenth-century rules. On the other hand, Germany—as well as the United Kingdom—had declared expressly, in 1875, to the Spanish government that they did not recognise the sovereignty of Spain over the islands. Germany averred that it was effective occupation of a territory which gave rise to sovereignty over it, and that Spain had never occupied the archipelago in the fashion required. The arbitrator in his ruling affirmed the sovereignty of Spain over the archipelago, but this was tempered in three important ways. First, the Spanish government must, ‘in order to render effective its sovereignty’, establish on the islands a regular administration which would be capable of safeguarding order and guaranteed rights. Secondly, Spain must offer to Germany full liberty of commerce, navigation, and fishery in the archipelago, as well as the right to establish there a naval station and a coal depot. And, thirdly, Germany was to be given the right to establish plantations and agriculture on an equal footing with Spanish nationals. The Carolines arbitration is therefore, as Basdevant observed, an early precedent for the proposition that ‘la reconnaissance de la souveraineté acquise selon le droit ancien est … tempérée par l’engagement de la rendre plus active selon le vœu du droit moderne’.86 Nonetheless, the rule came in for criticism. The United States Agent Nielsen’s comment to the Tribunal’s conclusions as to intertemporality was that: It would seem difficult to perceive how an international title, so to speak, acquired under law definitively accepted as a certain period of time, or a domestic title to land acquired under rules regulating the acquisition of title the time of acquisition, could be regarded as an absolute title, if the title acquired, in order to continue to exist, must ‘follow the conditions required by the evolution of law.’ It would seem that the ‘evolution of law’ could only affect titles acquired contemporaneously with the stages of evolution. If this were not so, there could be no acquisition of a title subject to alteration or destruction by the ‘evolution of law’.87

In a similar vein, several academic authors took issue with the way in which Island of Palmas dealt with the intertemporal law.88 The principle of intertemporality was most famously criticised by Jessup. He attempted in his criticism to take the

86 J Basdevant, ‘Efficacité des Règles générales du droit de la paix’ in (1936) 58 Hague Recueil 537. This solution was, in material terms, also the one codified in the General Act of the Berlin Conference of 26 February 1885, and later reiterated in the Convention of Saint-Germain of 10 September 1919. Article 10 of the Convention of Saint-Germain provided that: ‘les Hautes Parties contractantes reconnaissant l’obligation de maintenir, dans les régions relevant de le leur autorité, l’existence d’un pouvoir et des moyens de police suffisants pour assurer la protection des personnes et des biens et, le cas échéant, la liberté du commerce et du transit’. Further: M Kohen, Possession contesté et souveraineté territoriale (Paris, Presses universitaires de France, 1997) 184. 87 Nielsen (n 4) 31. 88 Giuliano, I diritti e gli obblighi degli stati (n 34) 192; R Jennings, The Acquisition of Territory in International Law (Manchester, MUP, 1963) 29–30; K Doehring, ‘Die Wirkung des Zeitablaufs auf den Bestand völkerrechtlicher Regeln’ [1964] Max Planck Jahrbuch 70, 88.

124 Eirik Bjorge axe to the very root of the ruling in Island of Palmas, the effects of which he saw as highly disturbing.89 Jessup in his criticism gave an example in order to bear out the to his mind deleterious effects which would follow in the wake of the principle on which Island of Palmas was based: Assume that State A in a certain year acquires Island X from State B by a treaty of peace after a war in which A is the victor. Assume Island X is a barren rocky place, uninhabited and desired by A only for strategic reasons to prevent its fortification by another Power. Assume that A holds Island X, but without making direct use of it, for two hundred years. At the end of that time suppose that the development of international morality has so far progressed as to change the previous rule of international law and that the new rule is that no territory may be acquired by a victor from a vanquished at the close of a war. Under the theory of ‘intertemporal law’ as expounded, it would appear that A would no longer have good title to Island X but must secure a new title upon some other basis or in accordance with the new rule. Such a retroactive effect of law would be highly disturbing.90

The argument put forward by Jessup in his example is open to criticism, and that criticism seems logically to fall in four parts. First, Jessup’s case in point is different from the legal situation in Island of Palmas. While the norm relied on by Huber related only to the facts obtaining at the time of the coming into force of the norm itself, the norm in Jessup’s example bears on the way in which the territory was acquired in the first place. Thus A’s right to Island X in Jessup’s example could be extinguished only if it was applied to the acquisition which took place 200 years before the norm’s coming into force.91 This was, however, exactly that which the tribunal was at pains to avoid in Island of Palmas; it made very clear that the effects of the new rule was that ‘discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island of Palmas’.92 It is thus far from clear that the effect here described is actually retroactive. Rather the case is that the change of law prompts a change ex nunc as opposed to ex tunc. This has parenthetically led one commentator to argue not only that Jessup had misunderstood the difference between nullity ex nunc and ex tunc but also that his was an outright misreading of the whole Island of Palmas case.93 In the light of the above, this criticism of Jessup’s stance seems fair. Secondly, counter examples to Jessup’s example could be imagined that would make very clear the necessity of the rule of intertemporality. One could think of examples bearing on colonialism. It could hardly be disputed that colonialism was central to the development of international law;94 Island of Palmas is a case in point.

P Jessup, ‘The Palmas Island Arbitration’ (1928) 22 AJIL 735, 740. ibid, 740. 91 W Krause-Ablaß, Intertemporales Völkerrecht (Hamburg, Forschungsstelle für Völkerrecht und ausländisches Recht der Universität Hamburg, 1969) 27–28; HW Baade, ‘Intertemporales Völkerrecht’ (1957) 7 Jahrbuch für internationals Recht 229, 242. 92 Island of Palmas (n 6) 846 (emphasis added). 93 Krause-Ablaß, Intertemporales Völkerrecht (n 81) 28. 94 A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, CUP, 2004) 2–3. 90

Island of Palmas 125 It is possible therefore to imagine examples to do with slavery, exploitation, and the rights of peoples to self-determination which would furnish us with situations in which that which was once in conformity with international law at a later point is singularly in breach of a newly emerged rule because, to use Jessup’s words, ‘the development of international morality has so far progressed as to change the previous rule of international law’.95 Suffice it here to give one example, from the jurisprudence of the International Court. In Western Sahara,96 one pressing question was, which law applied, the old one of the nineteenth century or the new twentieth-century one of self-determination? The International Court began by observing that the questions before it must be addressed ‘by reference to the law in force at that period’.97 The Court had found that there existed, at the time of Spanish colonisation, ‘legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of W estern Sahara’.98 The materials and information presented to the Court had also shown the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity and the territory of Western Sahara. The Court made clear that its ruling was one which took into account both limbs of the principle of intertemporality when it commented on its own conclusion that the materials and information presented to it did not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity: Thus the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.99

This was in line with the argument of Algeria and went against the grain of the argument presented by Morocco. This final sentence of the Court’s ruling is essential in that it shows that the Court was concerned not to address only the old law but also to take into account the present law, reflected in the Charter and in the resolutions on self-determination.100 In that sense the Court correctly applied both limbs of the principle of the intertemporal law enunciated in Island of Palmas. Morocco in fact made the same mistake in its criticism of intertemporal law as Jessup had done in his criticism of Island of Palmas: in its pleadings Morocco had

Jessup ‘The Palmas Island Arbitration’ (n 89) 740. Western Sahara, Advisory Opinion (n 76). 97 ibid, 38–39. 98 ibid, 68. 99 ibid. This point seems to be lost on some authors, who claim that the Court did not fully engage with the intertemporal issues, and instead adopted a ‘conservative’ approach: M Shaw, ‘The Western Sahara Case’ (1978) 49 BYIL 119, 152; M Koskenniemi, From Apology to Utopia, 2nd edn (Cambridge, CUP, 2005) 456–57. 100 P Tavernier, ‘Observations sur le droit intertemporal dans l’affaire de l’île de Kasikili/Sedudu (Botswana/Namibie)’ (2000) RGDIP 429, 441–42. 96

126 Eirik Bjorge assumed that the second limb of the intertemporal rule would mean that the title was invalid retroactively. This was based on a two-fold misconception: first, the new norm did not in point of fact reopen the question of the title acquired at the date of colonisation, it rather demanded its cessation and just possibly eroded it; secondly, the new norm did not operate on the basis of re-examining old titles but based itself on the rights of the inhabitants of the colonially defined territory to self-determination.101 If one sees the rule of intertemporality under the angle of colonialism and the right of peoples to self-determination, as the International Court did in Western Sahara, its soundness becomes very clear, even clearer than was in the case of the two colonial powers vying for imperium over a faraway territory in Island of Palmas. A third criticism levelled at the principle relied on by the tribunal in Island of Palmas by Jessup was that the application of Huber’s principle would mean chaos if such a principle were to be applied to private law and private titles in national law.102 It is in this regard apposite to mention that the tribunal in Island of Palmas probably took some inspiration from European national law, where the principle already was well developed. This seems to have been entirely overlooked by Jessup in his criticism. In Germany the principle, or an early cognate, may be traced back to as early as in the end of the nineteenth century.103 One German scholar dated it back to 1897, when the term ‘intertemporales Recht’ had been used to describe the law determining the period to which legislation applies.104 By 1908 at the latest it had, under the names ‘droit transitoire’ as well as ‘droit intertemporel’, made an appearance in French private law doctrine.105 Furthermore the principle was highly developed in Swiss law;106 in fact the Swiss civil code of 1907, in Article 17 of its last chapter, codifies the principle.107 These examples seem to go some way in giving the lie to Jessup’s argument that the result would have been chaos had the principle been imported into national law. The issue may have been under-researched in the common law, and that may go some way in explaining this lack of understanding of what, to Jessup, clearly seemed a very strange proposition indeed.108 The intertemporal law, like other branches of international law, ‘does not operate in a vacuum’; rather it operates in ‘relation to facts and in the context of a wider

101

Shaw ‘The Western Sahara Case’ (n 99) 153. P Jessup ‘The Palmas Island Arbitration’ (n 89) 740. 103 A Rodger, ‘A Time for Everything under the Law: Some Reflections on Retrospectivity’ (2005) 121 LQR 57, 60–62. 104 FX Affolter, Geschichte des intertemporalen Privatrechts (Leipzig, Veit, 1902) 1. 105 M Popoviliev, ‘Le droit civil transitoire ou intertemporel (sa nature, sa règle générale et sa place dans la législation)’ (1908) 3 Revue trimestrielle de droit civil 462. 106 HW Baade ‘Intertemporales Völkerrecht’ (1957) 7 GYIL 229, 242. 107 Article 17 of the last chapter of the Swiss civil code provides that: ‘1. Les droits réels existant lors de l’entrée en vigueur du code civil sont maintenus, sous réserve des règles concernant le registre foncier. 2. Si une exception n’est pas faite dans le présent code, l’étendue de la propriété et des autres droits réels est néanmoins régie par la loi nouvelle dès son entrée en vigueur. 3. Les droits réels dont la constitution n’est plus possible à teneur de la loi nouvelle continuent à être régis par la loi ancienne.’ 108 Rodger ‘A Time for Everything under the Law’ (n 103) 60–61. 102

Island of Palmas 127 framework of legal rules of which it forms only a part’.109 The impact of the intertemporal law will be reduced by the effect of other principles of international law. These include the effect of recognition, acquiescence, and the rule that abandonment is not to be presumed.110 An example of this may be found in Pedra Branca, where the historic title of the Sultanate of Johore to the disputed territories survived despite the fact that the Sultanate had exercised little or no governmental authority over them.111 The principle of the Island of Palmas rule has become an article of faith in international law. Yet the chaos foreshadowed by Jessup seems somehow not to have come to pass. This is partly because of the flexibility of the rule. It is also partly because other principles of interpretation and application of intertemporal law such as acquiescence, prescription, and desuetude would operate to make it impossible for the second element of the principle to work injustices.112 But the success of the principle is also precisely the fact that it reflects the evolution of law. There is no surprise in the fact that states follow international law, for it is the states themselves who will have made the law which they are following. The reason why states do comply, and always have complied, with international law is that they make the rules to suit themselves.113 That which is seen by some as the very problem of the intertemporal rule is in fact its saving grace. We should not forget that the jurist who—while he did not invent it—brought the intertemporal law into the mainstream of international law was himself known for his sociological approach to law. The author of Die soziologischen Grundlagen des Völkerrechts,114 Huber took a view of international law which was in no way blind to what states actually do. This is a point of some significance. If the system of territorial title internationally has not collapsed as a result of the adoption by international law of the principle of intertemporality that is partly because the changing requirements of the law with which the rights must be kept up in accordance, will be a reflection of the development of state practice. It bears mention therefore that the principle on which the Island of Palmas tribunal based its decision had, in material terms, been codified by the world powers in the General Act of the Berlin Conference of 26 February 1885, and later reiterated in the Convention of Saint-Germain of 10 September 1919. Article 10 of the Convention of Saint-Germain provided that: ‘les Hautes Parties contractantes reconnaissant

109 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt [1980] ICJ Rep 73, 76 [10]. 110 J Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford, OUP, 2012) 218–19. 111 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (n 25). 112 TO Elias, ‘The Doctrine of Intertemporal Law’ (1980) 74 AJIL 285, 286–87; I Brownlie, Principles of Public International Law, 2nd edn (Oxford, OUP 1973) 132–33. 113 See AV Lowe, International Law (Oxford, OUP, 2007) 19. 114 M Huber, Die soziologischen Grundlagen des Völkerrechts (Berlin, Verlag für Recht und Gesellschaft, 1928). Further: J Delbrück, ‘Max Huber’s Sociological Approach to International Law Revisited’ (2007) 18 EJIL 97, 102–10; O Spiermann, ‘Judge Max Huber at the Permanent Court of International Justice’ (2007) 18 EJIL 115, 116–19; O Diggelmann, ‘Max Huber (1874–1960)’ in Fassbender and Peters History of International Law (n 23) 1156–51.

128 Eirik Bjorge l’obligation de maintenir, dans les régions relevant de le leur autorité, l’existence d’un pouvoir et des moyens de police suffisants pour assurer la protection des personnes et des biens et, le cas échéant, la liberté du commerce et du transit’.115 It seems important to point out, however, that it is not the case that all territories acquired by way of methods now deemed unacceptable should be taken away from the states in issue. In most cases, such as those where title was acquired by conquest, the latter-day criterion of effective occupation will anyway later be fulfilled. This ties in with the sociological point: it is no surprise that states should in fact be acting in conformity with a rule which flows from state practice. These points seem to bear out the correctness, in normative terms, of the principle of intertemporal law. The same conclusions may be drawn from the vicissitudes to be found in international jurisprudence and doctrine. The issues are there sometimes simplified but the time related matters which in their bearing on the law seem at first so simple may on further examination prove to be very difficult indeed. Sometimes, not least in cases where the tribunal seems to have been unaware of the principle of intertemporality, one can detect a tendency in the argument of the tribunal away from the ‘old law’ in direction surreptitiously of the ‘new law’. The Carolines arbitration has already been dealt with above. This can be seen in classic cases such as Clipperton,116 Veloz-Mariana,117 Delagoa Bay,118 and the Guiana Boundary Case.119 The same surreptitious slippage from old to new law may be observed in modern international jurisprudence too. The International Court in Kasikili/Sedudu had to interpret an 1890 treaty between Germany and the United Kingdom, the foundation of the rights of Botswana and Namibia as successor states, that fixed the spheres of influence in Africa of Germany and the United Kingdom as colonial powers. Article III delimited ‘the sphere in which the exercise of influence is reserved to Germany’ to the east by a line which ‘descends the centre of the main channel’ of the river Chobe ‘to its junction with the Zambesi, where it terminates’.120 The Court noted that ‘at the time of the conclusion of the 1890 Treaty, it may be that the terms “centre of the [main] channel” and “Thalweg” des Hauptlaufes were used interchangeably’.121 It went on to hold that ‘although, as explained above the parties in 1890 used the terms “thalweg” and “centre of the channel” interchangeably, the former reflects more accurately the common intention to exploit navigation than does the latter. Accordingly, this is the term that the Court will consider determinative’.122 The boundary thus followed the line of deepest soundings in the

115

C Rousseau, Principes généraux du droit international public (Paris, Pedone, 1944) 32–33. Island of Clipperton (n 76). 117 Veloz-Mariana in H La Fontaine, Pasicrisie internationale: histoire documentaire des arbitrages internationaux (Berne, Stämpfli, 1902) 26. 118 Sentence arbitrale relative aux requêtes de la Grande-Bretagne et du Portugal sur certains territoires de la côte Est de l’Afrique appartenant autrefois aux Rois de Tembe et Mapoota, incluant les îles de Inyack et Éléphant (Baie de Delagoa ou Lorenzo Marques) (1875) 28 RIAA 157, 160. 119 Guiana Boundary Case (Brazil/Great Britain) (1904) 11 RIAA 11, 21–22. 120 German original: ‘setzt sich dann im Thalweg des Hauptlaufes dieses Flusses fort’. 121 Kasikili/Sedudu Island (n 76) [25]. 122 ibid, [89]. 116

Island of Palmas 129 northern channel around the Kasikili/Sedudu Island. The authors who have studied the meaning concept of thalweg in the nineteenth and twentieth century have, however, underlined the considerable uncertainty that obtained as to its content.123 Namibia in this vein insisted that there was not in general international law in 1890 a principle according to which river frontiers followed the thalweg. This the Court did not take into account, choosing instead to have recourse to the definitions of the thalweg which had crystallised after the 1890s. Arbitrators and international judges, in spite of their best efforts to the contrary, have difficulty stepping back in time. This of course has cogent reasons, and could only with difficulty be criticised. In fact, the Sole Arbitrator’s judgment in Island of Palmas inadvertently exemplifies this. For around the time when Island of Palmas was handed down, but clearly too late for any of the parties, or the Tribunal, to have noticed, scholarship came to light which incontrovertibly showed that it was in fact never the case that the sixteenth century rules of international law on discovery were such that the mere discovery of a new land could give rights of sovereignty.124 The position already at that early period was the one set out by Grotius, that is, that ‘to discover a thing is not only to seize it with the eyes but to take real possession of it’.125 To the extent, therefore, that Island of Palmas tried to come to grips with the old law, the law of the sixteenth century, by getting it so wrong the Sole Arbitrator brought out one of the difficulties of relying for its application in the modern period on ancient law. This leads us to an important conclusion when it comes to the soundness of the application of the principle of intertemporality. Against this background a plea for a two-limbed principle of intertemporality becomes something like a plea for transparency in international adjudication, and in fact also an argument for predictability. As international tribunals—on the clear evidence of the international law reports from their very first volumes all the way up to present times—will tend to apply modern conceptions of law, or apply an old law which looks very much like the new law, when on their own admission they are simply applying the old law, then surely the solution in Island of Palmas, with its attendant complexities, is preferable if for no other reason than that it leads to a more transparent form of international adjudication. It may be so difficult to grasp this spirit of the past that at times international tribunals have failed to understand and to apply the old law, instead dressing up contemporaneous law as old and applying that in lieu of the old one. This fact, as was seen above, leaps from the pages of international law reports old and new. The double helix of intertemporality recognises that it is very difficult, when one is interpreting a

123 P La Pradelle, La frontière: étude de droit international (Paris, Les Éditions internationales, 1928); E Lauterpacht, ‘River Boundaries: Legal Aspects of the Shatt-al-Arab Frontier’ (1960) 9 ICLQ 208; P Tavernier, ‘Le conflit frontalier entre l’Irak et l’Iran et la guerre du Chatt-el-Arab’ [1981] Arès Défense et Sécurité 333, 341; F Schroetter, ‘Les systèmes de délimitation dans les fleuves internationaux’ (1992) 38 Annuaire français de droit international 948, 959–64. 124 J Goebel, The Struggle for the Falkland Islands (New Haven, Yale University Press, 1927); de Visscher (n 13) 741–42. 125 ibid, 117.

130 Eirik Bjorge treaty, not to view it from the perspective of the time of interpretation.126 This is one reason why application in international arbitration of the two limbs of the principle from Island of Palmas may lead to more transparency and in the final analysis also more predictability. The principle of intertemporality seems to have been designed to govern a situation in which the necessary stability in relations between states is to be preserved, while at the same time the necessity for evolution in those relations and in the law regulating them is recognised. There is no real antithesis between the first and second element, and the more we have regard to this consideration the better we can appreciate the delicate balance aimed at in the formulation of the doctrine as now generally accepted. The analysis above, however, commands the conclusion that the solution reached in Island of Palmas is the best proffered yet. The intertemporal principle to which Island of Palmas gives expression has taken on importance within treaty interpretation.127 Perhaps the clearest example of how the principle in Island of Palmas continues to operate within the law of treaties was given by the International Court in Aegean Sea, where Huber’s words are mirrored closely: in certain cases, the interpretation of the treaty must ‘follow the evolution of the law and … correspond with the meaning attached to the expression by the law in force at any given time’.128 IV. OTHER ISSUES SETTLED BY THE AWARD

Two other issues settled by the Award merit mention. First, as the International Court observed in Land and Maritime Boundary, the Award is authority for the proposition that agreements between states and local chieftains are not treaties, the Court referring to Arbitrator Huber’s determination that such an instrument ‘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’.129 As Judge Al Khasawneh pointed out in his Separate Opinion, however, Island of Palmas was on this score clearly wrong: the fact that the agreement is not one between equals does not mean that it cannot be valid as a matter of the law of treaties. Judge Al Khasawneh observed that ‘Such an approach is a confusion of inequality in status on the one hand and inequality in power on the other. That local rulers and chiefs were weak is apparent from their agreeing to enter into treaties of protection, but this does not detract from the fact that they had the capacity to enter into treaty relations’.130 A generous view might be to say that this part of Huber’s award is no more than an instance of Homer nodding; but, as Mamadou Hébié has observed, the reality of the matter is that ‘Max Huber ruled that some local political entities in South-East Asia

126

D Greig, Intertemporality and the Law of Treaties (London, BIICL, 2001) 138. E Bjorge, The Evolutionary Interpretation of Treaties (Oxford, OUP, 2014). 128 Aegean Sea Continental Shelf (Greece v Turkey) (Judgment) [1978] ICJ Rep 3, 32 at [77]. 129 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) [2002] ICJ Rep 303, 405 at [205]. 130 ibid, 495–96 at [5]. 127

Island of Palmas 131 could not conclude real treaties because they were outside the European Family of Nations’.131 Secondly, and less controversially, Island of Palmas is authority for the evidentiary rule that maps are to be handled with great care. As the Sole Arbitrator observed in a passage which has been cited on many occasions by international courts and tribunals: only with the greatest caution can account be taken of maps in deciding a question of sovereignty … Any maps which do not precisely indicate the political distribution of territories … clearly marked as such, must be rejected forthwith … The first condition required of maps that are to serve as evidence on points of law it their geographical accuracy. It must here be pointed out that not only maps of ancient date, but also modern, even official or semi-official maps seem wanting in accuracy.132

V. CONCLUSION

Though the disputed territory in question was all but miniscule, the Award settling which state had sovereignty over it is nothing if not a landmark of public international law. In fact, as this chapter has sought to show, Island of Palmas is one of the first cases which made public international law a public law as opposed to being only, as one leading nineteenth-century work would have it, ‘private law writ large’.133 As the Sole Arbitrator showed, private law concepts of ownership were not sufficient to inspire the international law of sovereignty over land. Island of Palmas thus took a small but decisive step away from a conception of international law in which sovereignty had been modelled on transfer of property in domestic private law. Small, because it was founded on already existing international law, as set out in numerous awards and judgments. Important, because, by leaving behind the negatively conceived private law concept of sovereignty-as-ownership, Sole Arbitrator Huber in Island of Palmas considered himself bound to conceive of sovereignty as a fundamentally concrete concept, positively conceived, and one which gave importance to the individuals who actually lived on the territory in question. According to the orthodox conception of international law, individuals were classed as objects of international law on a par with rivers and canals;134 Island of Palmas, through the concept of sovereignty that it promulgated, effected a jurisprudential dent in this age-old conception. As will have been seen, the Award in Island of Palmas built on

131 M Hébié, ‘The Role of the Agreements Concluded with Local Political Entities in the Course of French Colonial Expansion in West Africa’ (2015) 85 BYIL 21, 25. See, more generally, M Hébié, Souveraineté territoriale par traité (Paris, Presses universitaires de France, 2015). 132 Island of Palmas (n 6) 852–53. Quoted in, eg Territorial and Maritime Dispute between Nicaragua and Honduras (n 25) 723, [214]; Case concerning the Temple of Preah Vihear (Cambodia v Thailand) dissenting opinion Judge Moreno Quintana ICJ Rep 1962, 69–70; Eritrea v Yemen (n 25) 100, [388]. 133 TE Holland, Studies in International Law and Diplomacy (Oxford, Clarendon Press, 1898) 152. 134 L Oppenheim, International Law (London, Longmans, 1905) 344–45.

132 Eirik Bjorge precedents such as Alpe di Cravairola,135 in which the point was explicitly made that human activity could, in the determination of which state enjoyed sovereignty, take precedence over the importance of the watershed of a river, and Grisbadarna, which stressed the importance ‘of private interests which, if once neglected, cannot be effectively safeguarded by any manner of sacrifice on the part of the Government of which the interested parties are subjects’.136 In this way Island of Palmas can be seen to have laid the groundwork for later developments of international law which would recognise individuals as subjects and no longer only objects of international law. This should be seen as being closely connected with that which the Award says about the intertemporal law. The second limb of the intertemporal rule was no more than a natural corollary to the modern doctrine according to which sovereignty involves the provision of guarantees for the observance of minimum standards of international law in the territory.137

135 Alpe di Craivarola in H La Fontaine, Pasicrisie internationale: histoire documentaire des arbitrages internationaux (Berne, Stämpfli, 1902) 201. 136 Grisbadarna (Maritime Boundary Dispute) (n 62) 234. 137 Waldock, Disputed Sovereignty (n 81) 321.

7 Legal Status of Eastern Greenland (Denmark v Norway) (1933) ROLF EINAR FIFE

I. INTRODUCTION

N 1933 A contentious issue between Denmark and Norway concerning sovereignty over a swathe of Eastern Greenland was successfully resolved through international dispute settlement.1 This was the first time that a dispute over acquisition of territorial sovereignty was settled by the Permanent Court of International Justice in The Hague (PCIJ), the predecessor of the present International Court of Justice (ICJ).2 In fact, this also proved to be the only time that it did so.3 As distinct from earlier arbitral awards, such international adjudication by a standing court is in itself a historic landmark. Moreover, the judgment has later been relied upon as a building-block for the international jurisprudence in this field, as will be seen in Part IV. The parties swiftly complied with the judgment. It helped ‘clear the air’ between them and provides a case study of the potential role of law and legal process in international politics.4 Nevertheless, Eastern Greenland is rarely mentioned in surveys of the interplay between law and international politics, or even in treatises on international relations for the period between the First and Second World Wars.5 1 Legal Status of Eastern Greenland (Denmark v Norway), Judgment of 5 April 1933, PCIJ, Series A/B, No 53. 2 For an overview of the precursors, the creation and the procedures of the Permanent Court of International Justice, see MO Hudson, The Permanent Court of International Justice 1920–1942 (New York, Macmillan, 1943). Five years before the Eastern Greenland judgment a notable arbitral award was issued with Island of Palmas (Netherlands, United States of America) (1928) 2 RIAA 829. Two years before Eastern Greenland, and a few months before Norway proclaimed its occupation of the territory, an arbitral award concerning an uninhabited territory was delivered by the King of Italy on 28 January 1931, in the case Island of Clipperton (Mexico v France) (1931) 2 RIAA 1105. 3 As opposed to a frontier dispute, see R Dollot, ‘Le Droit international des espaces polaires’ (1949) 75 Hague Recueil 1949, 121, 162; O Spiermann, International Legal Argument in the Permanent Court of International Justice—The Rise of the International Judiciary (Cambridge, CUP, 2005) 344. 4 The expression ‘clear the air’ was used by one of the protagonists, Professor Frede Castberg; see the quotation at the end of the article. 5 No reference was made to Eastern Greenland in the classic and regularly revised JB Duroselle, Histoire des Relations internationales de 1919 à 1945, Vol 1, 12th edn (Paris, Armand Colin, 2001); nor is any reference made to it, for instance, in M Byers (ed), The Role of Law in International Politics— Essays in International Relations and International Law (Oxford, OUP, 2000).

134 Rolf Einar Fife Even recognised handbooks of the history of international law happen to avoid references to the judgment.6 This stands in sharp contrast to the frequent references in later jurisprudence and in manuals of international law.7 There may be several reasons for such excessive sobriety. The rapidly deteriorating international climate in 1933 may have led to a general shift in focus over to other, decidedly more worrying, political issues than those related to remote and uninhabited Arctic territories. Admittedly, 1933 is not widely remembered for Eastern Greenland, or as the year of the first international adjudication by a world court of a contentious territorial sovereignty dispute and its successful legal and political resolution.8 Instead, it remains associated with Hitler’s rise to power in Berlin as chancellor in January, against a backdrop of global economic recession and social disruption. In March of the same year, Japan left the League of Nations, to be followed by Germany in October. The judgment having ‘cleared the air’, the parties themselves did not have any incentives to make frequent references to it. On the Norwegian side, the occupation of Eastern Greenland on 10 July 1931 came instead increasingly to be seen as a questionable episode, not least in a domestic political and constitutional law perspective.9 As an experience that few would like to be reminded of it came to be relegated to a parenthesis in Norway’s political history.10 For students of international law, the judgment came to signify two pithy propositions. As regards acquisition of territorial sovereignty, the principle of effectiveness requires little in terms of evidence of display of state authority if the territory in question is inhospitable. In addition, the phenomenon known as the ‘Ihlen Declaration’ came to signify that a unilateral declaration of a foreign minister may become legally binding for a state under international law.

6 No reference is provided in the otherwise thorough B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (Oxford, OUP, 2012). 7 G Alfredsson, ‘Eastern Greenland Case’ Max Planck Encyclopedia of Public International Law (2007) 267, 268 noted no fewer than 26 references to the case in I Brownlie, Principles of Public International Law, 5th edn (Oxford and New York, Clarendon 1998); the number remains the same in J Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford, OUP, 2012). 8 The general decline of the order established after the First World War is key to P Krüger’s chapter ‘From the Paris Peace Treaties to the End of the Second World War’ in Fassbender and Peters History of International Law (n 6) 679, 693. 9 An example of an even-handed, though characteristically short, narrative is provided by B Furre, Norsk Historie 1905–1990 (Oslo, Det norske samlaget, 1992) 140–41. In recent years, detailed analyses of political and economic history related to Eastern Greenland have been carried out. The most comprehensive survey to date is covered in the three-volume EA Drivenes & HD Jølle (eds), Norsk Polarhistorie (Oslo, Gyldendal, 2004), in particular vol 2 at 215–44; and vol 3 at 188 and 266–71. The present contribution draws heavily on the backgrounds provided by Drivenes and Jølle. A single-volume English edition was published in 1996: EA Drivenes and HD Jølle (eds), Into the Ice—The History of Norway and the Polar Regions (Oslo, Gyldendal, 2006) 296–306. The impact of the dispute between Denmark and Norway in shaping Norwegian foreign policy was discussed in OB Fure, Mellomkrigstid 1920–1940, vol 3 of Norsk Utenrikspolitisk Historie (‘History of Norwegian foreign policy’) (Oslo, Universitetsforslaget, 1996) 121–32. 10 Some protagonists were later associated with the Nazi party during the Second World War, which contributed to their discreditation. They included Gustav Smedal (1888–1951) (see n 121 below), who had worked as a lawyer in the Norwegian Foreign Ministry from 1920 to 1923. His doctoral thesis at the University of Oslo in 1930 (Ervervelse av statshøihet over polarområder) proved highly influential for the formulation of the legal basis for the Norwegian claim over Eastern Greenland in 1931. It was

Legal Status of Eastern Greenland 135 More recently, the judgment has been considered by some as representing decidedly classical inter-state international law, notably without analysing issues pertaining to indigenous populations.11 Its continued relevance as a keystone of the jurisprudence pertaining to the establishment of territorial sovereignty has nevertheless both been proven and richly analysed.12 The object of this contribution is to highlight the 1933 judgment’s continued importance and interest in several perspectives, and possibly help unshackle such mental brackets as might still surround it.13 II. SETTING THE STAGE: GEOGRAPHY, THE PARTIES AND THEIR CLAIMS

A. Geography An aphorism commonly attributed to Napoleon is that the foreign policy of a state follows from its geography.14 In addition to promoting a keener understanding of the parties’ interests, claims and arguments, placing Eastern Greenland in its wider geographical context may also benefit its legal analysis. Greenland (in Greenlandic, Kalaallit Nunaat) covers 2.2 million km², with population concentrated largely in settlements on the west coast. These could not easily be linked by transport over land, and the latter remains difficult today. Eastern Greenland concerned a disputed territory covering a part of the east coast situated north of the Arctic Circle, at latitudes between 71°30′N and 75°40′N. The Court emphasised the Arctic climate and character of the territory. In its own words, ‘only a narrow strip of varying width along the coasts is free of permanent ice’.15 Moreover,

published in English in 1931 as Acquisition of Sovereignty over Polar Areas (C Meyer tr) and remained an important reference in international law; see for example CHM Waldock, ‘Disputed Sovereignty in the Falklands Islands Dependencies’ (1948) 25 BYBIL 311 at 315–36; R Ago, Il requisito dell’effettività dell’occupazione in diritto internazionale (Rome, Anonima Romana Editoriale, 1934). In 1931, Smedal also published Oppgjør og forståelse med Danmark (‘Resolution and understanding with Denmark’), which became politically influential in activist circles in connection with the Eastern Greenland case. 11

Alfredsson ‘Eastern Greenland Case’ (n 7) 268, [10]. is no scope here for a survey of this rich literature. For a brief but elegant introduction, see V Lowe, International Law (Oxford, OUP, 2007) 136–48. For a readable overview of acquisition and transfer of territorial sovereignty, see J Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford, OUP, 2012) 215–44. For a foundational discussion of legal method, with frequent references to Eastern Greenland, see M Kohen, Possession contestée et souveraineté territoriale (Paris, Presses Universitaires de France, 1997). For the normative significance of statehood and its international law conditions, including effectiveness, see J Crawford, The Creation of States in International Law, 2nd edn (Oxford, OUP, 2006). 13 A summary of the 1933 judgment is provided in Summaries of Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice (United Nations, New York, 2012) (ST/LEG/ SER.F/1/Add.4) 306–18. A synopsis is provided in Part III below. 14 ‘Tout Etat fait la politique de sa géographie’, as quoted by A Defay, La géopolitique (Paris, Presses Universitaires de France, 2005) 4. 15 Eastern Greenland (n 1) 26. This characteristic has become subject to climate change. For an overview of Greenland’s physical and economic geography see C Berthelsen, IH Mortensen and E Mortensen, Kalaallit Nunaat Greenland Atlas (Nuuk, Greenland, Pilersuiffik, 1990), with overall maps of regions and settlements at 18 and 51. 12 There

136 Rolf Einar Fife not only the vast Greenland ice sheet, in the judgment referred to as the ‘inland ice’, but also parts of the coast were deemed difficult to access. Such difficulties were seasonally compounded on the east coast ‘owing to the influence of the Polar current and the stormy winds on the icebergs and the floe ice and owing to the frequent spells of bad weather’.16 The coastal region concerned extended between Carlsberg Fjord in the south and Bessel Fjord in the north. Economic interests in the area related to traditional marine activities, namely fishing and hunting. The coastal front faced the Greenland Sea and the island of Jan Mayen. This island had recently been annexed by Norway (1929). Incidentally, such long-standing interests seemed to re-emerge again later, in a case between D enmark and Norway that led to the 1993 ICJ judgment concerning the maritime delimitation between Greenland and Jan Mayen.17 This judgment c oncerned a maritime area facing the coast of Eastern Greenland.18 A careful consideration of the wider geographical context of Eastern Greenland may also bring to the fore what Neil MacCormick would have called ‘consequentialist arguments’, ie consequences of various alternative rulings as to the types of decision which would have to be given in other hypothetical cases.19 The landward limits of the area covered the Norwegian act of occupation in 1931, and thus the landward extent of the disputed area, had not been defined, other than by reference to the ‘inland ice’.20 If the area had ultimately been found to be terra nullius and thus open to occupation, there would be pause to reflect on what consequences this would have had for the definition of landward limits and beyond, but not solely. Consequential issues would have arisen for other unsettled parts of Greenland. In fact, this proved to be more than a purely hypothetical question. In 1932, in the course of these proceedings, Norway brought a case against D enmark before the PCIJ concerning a different part of Greenland, the South-Eastern Territory of Greenland.21 This case followed from a second act of occupation made by Norway on 12 July 1932, further south on the eastern coast of Greenland.22 Both parties had sent hunting expeditions to this area, and both had nationals invested with police powers.23 On 18 July 1932, Norway instituted proceedings before the PCIJ requesting the Court to order interim measures of protection, alleging a ‘serious reason to

16 Eastern Greenland (n 1) 27. Recent developments of climate change have led to dramatic decreases of the ice sheet, but also to a high incidence of drift ice at sea and continued seasonal challenges for navigation and other forms of communication. 17 Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment [1993] ICJ Rep 38. On treaty-making in the wake of the ICJ judgment, RE Fife, ‘Les accords faisant suite à l’arrêt rendu par la Cour internationale de Justice en 1993 dans l’affaire entre le Danemark et la Norvège concernant la délimitation maritime dans la région située entre le Groenland et Jan Mayen’ (1999) 4 Annuaire du droit de la mer 199. 18 This maritime area is situated at latitudes between 69°54′N and 74°21′N, thus largely coinciding with the latitudes defining Eastern Greenland. 19 N MacCormick, Legal Reasoning and Legal Theory (Oxford, Clarendon Press, 1978) 129ff. 20 Eastern Greenland (n 1) 26. 21 Legal Status of the South-Eastern Territory of Greenland, Order 3 August 1932, PCIJ, General list, Nos 52 and 53, 276. See Summaries of Judgments, etc 320–21. 22 Between the latitudes 63°40′N and 60°30′N. 23 South Eastern Territory of Greenland (n 21) 283.

Legal Status of Eastern Greenland 137 fear … acts of violence against Norwegian nationals’.24 The request was dismissed in an order on 3 August, while the Court reserved its right subsequently to consider whether new circumstances would require the indication of such provisional measures. The case was ultimately removed from the Court’s list in 1933 following the withdrawal of both acts of occupation by Norway after the Eastern Greenland judgment. However, the question as to what other parts of Greenland might have been deemed open to occupation, had the Court instead found in favour of Norway in that case, has rarely been the object of a sharpened focus in legal or other commentaries. This is not to say that Eastern Greenland hinges on such consequentialist arguments, nor that the state of international law was so indeterminate as to pave the way for more subjective influences. However, it may be useful to underline a geographical context that helps explain that the core issue in Eastern Greenland was not whether Denmark had territorial sovereignty in Greenland—that was undisputed. The issue, in its pithiest form, was instead whether that sovereignty covered Greenland as a whole or whether instead there could remain terrae nullius areas open to occupation. B. Background to the Norwegian Occupation in 1931 of Erik Raudes Land Since the end of the nineteenth century Norwegian hunters and fishers had been operating in the waters adjacent to Eastern Greenland and Jan Mayen, sometimes using bases on the Greenlandic shore.25 The establishment of a Danish trade monopoly for all Greenland led to a fear within such circles that it would drive out Norwegian interests. Protests ignited parts of Norwegian public opinion, particularly in coastal areas of the Norwegian mainland dependent on fishing and trapping. Greenland associations were formed. They organised rallies claiming that Norway had been subjected to historic injustice, when Greenland and other overseas territories had been handed over to Denmark at the end of the Napoleonic wars in 1814, and recalling that Norwegians had continued making a living in these Arctic areas. As a consequence, demands were made that the Norwegian Government occupy an unsettled area on the East coast of Greenland, on the assumption that it was terra nullius. Such demands were first resisted by the Government. They also led to a sharp cleavage between political parties. These demands met with opposition either to so-called ‘polar imperialism’ or to unilateralist action. Considering that the core issue concerned the extension of a trade monopoly detrimental to vested Norwegian economic interests, the Government favoured negotiations with Denmark with a view to securing equal fishing and hunting rights. Nevertheless, both states increased their activity in Eastern Greenland to bolster their claims. Private hunting and scientific expeditions were invested with police authority, on both sides. In the spring of 1931, an advisory council for polar affairs 24

The request was made in accordance with Art 41 of the Statute of the Court; ibid, 278. following summary of factual developments draws heavily on authors referred to in n 9, in particular Drivenes and Jølle. 25 The

138 Rolf Einar Fife of the Norwegian Government (Ishavsrådet), comprising representatives of hunting and scientific interests, demanded that the Government occupy a part of Greenland. Not having received the approval of the Government, the council’s chairman, the international lawyer Gustav Smedal organised the hoisting of the Norwegian flag on the territory by a private expedition on 26 June 1931.26 This ‘private occupation’ proclaimed Erik Raudes Land to be Norwegian. Under swiftly mounting political pressure, the Government ultimately relented. On 10 July 1931, it associated itself with these private acts and declared sovereignty over this part of Eastern Greenland. This declaration triggered the Court case. On 12 July 1931, Denmark submitted its application instituting proceedings on the basis of the optional clause contained in Article 36 (2) of the Court’s statute. At the same time, political tensions between Denmark and Norway should not be exaggerated. Thus, in the South-Eastern Territory of Greenland case brought the subsequent year, the Court characterised the attitude and conduct of the parties in the following way:27 even in this form, these declarations, taken together, are indicative of the existence in responsible circles in both countries of a state of mind and of intentions which are e minently reassuring.

To reach this conclusion, the Court took into consideration internal instructions issued to a Norwegian national invested with police powers, which emphasised the need to display ‘the utmost tact’ and required ‘avoiding complications’.28 Furthermore, no obstacles were to be placed in the way of Danish expeditions operating within the framework of a bilateral Convention of 9 July 1924 between Denmark and Norway concerning Eastern Greenland. This allowed fishers and hunters from both countries to continue their activities subject to the legislation of their respective countries. The two governments could not be presumed to act otherwise than in conformity with the intentions expressed before the Court. In any case, the Court considered that the sovereignty rights in question at the time could not be affected by the expeditions.29 Relying on a presumption of good faith of the parties, the Court therefore dismissed the Norwegian request. It reserved its right to subsequently consider whether new circumstances could arise requiring a different stance.30 The conduct of the parties was deemed ‘eminently reassuring’, and characterises more broadly the relations between them. C. Key Claims Denmark disputed the 1931 proclamation by Norway, stating that it had sovereignty over the whole of Greenland. Thus, the declaration of occupation and any steps taken in this connection by the Norwegian Government were deemed to 26

n 10. South Eastern Territory of Greenland (n 21) 286. 28 ibid. 29 ibid, 287. 30 ibid, 289. 27

Legal Status of Eastern Greenland 139 c onstitute a violation of the existing legal situation and were, accordingly, unlawful and invalid. Norway claimed that Denmark had no sovereignty over the area named Eirik Raudes land, which was considered terra nullius—no man’s land—at the critical date, ie the date of proclamation of Norwegian sovereignty in 1931, and that Norway had acquired the sovereignty over the territory. Considerable amounts of evidence were presented in the written and oral pleadings, with public hearings held from November 1932 to February 1933. Arguments presented by the Danish side, including its counsel Charles de Visscher, claimed actual exercise of sovereignty over time, but also general recognition and acquiescence by other states.31 Denmark maintained that the legal status of a given region depends on community recognition of other states (communis opinio). This spoke in favour of considering references to Greenland in various domestic legal acts and international instruments and documents as including the whole of Greenland.32 Among Norway’s arguments were a lack of sufficient display of state authority by Denmark in the area concerned, ie insufficient evidence of effective Danish possession, which spoke in favour of considering it terra nullius in 1931. Any bilateral recognition of Danish sovereignty by others was not deemed to engage Norway.33 Norway claimed that references to Greenland in a variety of instruments, domestic as well as international, included only the colonised parts of the island. It was maintained that they did not comprise the isolated and more inaccessible east coast. As stated by Norway’s counsel Gilbert Gidel, with the exception of Denmark none of 24 states that had been notified by Norway of the occupation of Eirik Raudes Land, had objected to it.34 III. THE DECISION: SYNOPSIS OF KEY FINDINGS

With a majority of 10 judges against two, the Court concluded that on 10 July 1931 Denmark possessed a valid title to the sovereignty over all Greenland.35 Also dissenting, Judge Anzilotti found in favour of Denmark, albeit on different grounds. The synopsis reveals a thorough consideration of treaties, displays of governmental authority and diplomatic correspondence, following a chronological structure: a

The Court gave a detailed account of historical and constitutional developments, based on the information provided by the parties. The first colonisation of Greenland was assumed to have taken place around 1000 AD. Two settlements on the south-west coast of Greenland became tributary to the kingdom of Norway in the thirteenth century. In 1380, the kingdoms of Norway and Denmark were united under the same Crown. In so far as it constituted a

Pleadings, Denmark’s Memorial, 101. Pleading, Denmark’s Reply. 712. 33 Pleadings, Norway’s Counter-Memorial, 538. 34 Pleadings, Norway, Gidel, No 66, 3185–280. See Dollot, Le Droit international (n 3) 161. 35 The two dissenting opinions were of Judge Anzilotti (Italian) and the Norwegian judge ad hoc Vogt; howeverJudge Anzilotti reached the same conclusion as the majority. 32

140 Rolf Einar Fife

dependency of the Crown, Greenland continued to be regarded as a Norwegian possession.36 The colonies in Greenland disappeared before 1500, but this did not put an end to the King’s pretensions to sovereignty over it.37 Under King Christian IV in the seventeenth century these pretensions were displayed in the form of a concession for a navigation and trade monopoly and in some contacts with foreign states. In 1723 and 1734 concessions for monopolies were granted for the whole of Greenland and exclusive privileges for their holders were enforced. There were also periods, intermittently, where the monopoly was directly exercised by the state. In 1776 Greenland trade became a monopoly of the state of Denmark by Ordinance of the King. Further regulations issued in 1781 divided the island into two administrative districts.38 While the Court recognised that the King’s claims ‘amounted merely to pretensions’, it found that ‘in the absence of any competing claim the King’s pretensions to be the sovereign of Greenland subsisted’. Furthermore, the Court considered that ‘Legislation is one of the most obvious forms of the exercise of sovereign power’, and that its enactment had in principle not been limited to the colonies, but concerned all Greenland.39 Legislative acts and administrative acts, including ordinances related to concessions, indicated that references to the word ‘Greenland’ had been made in the geographical sense, rather than meaning only the colonised area on the west coast. The Court relied on the ‘ordinary meaning of the word’ and stated that ‘(i)f it is alleged by one of the Parties that some unusual or exceptional meaning is to be attributed to it, it lies on that Party to establish its contention’.40 The burden of proof thus lied on Norway. The evidence provided did not support that the word ‘Greenland’ was to be interpreted in a restricted sense. Moreover, in the absence of any claim to sovereignty by another Power, and due to the Arctic and inaccessible character of the uncolonised parts of Greenland, the King of Denmark and Norway was found to have exercised his authority to an extent that was sufficient to establish a valid claim to sovereignty over all Greenland. Up to 1814, the rights which the King possessed over Greenland had been enjoyed by him as King of Norway. Summing up, no part of Greenland was to be considered ‘terra nullius’ in 1814. Thereafter, the Court attached ‘special importance’ to events between 1814 and 1819.41 Norway had up to 1814 been united to Denmark, which had supported France in the Napoleonic wars. Napoleon’s defeat made it possible for Sweden to obtain the cession of the Kingdom of Norway. The Kiel Peace Treaty of 14 January 1814 became significant in this context, as its Article 4 explicitly

Eastern Greenland (n 1) 27. Among others, Waldock, ‘Disputed Sovereignty’ (n 10) 321 has noted that the Court treated continuity of display of state authority as an integral element in the Danish title, irrespective of the fact that it did not emphasise the requirement of continuity as regards display of state activity to the same extent as Judge Huber in Island of Palmas (Netherlands, United States of America) (1928) 2 RIAA 829, (1928) 4 ILR 3 876. 38 ibid, 29. 39 ibid, 48. 40 ibid, 49. 41 ibid, 31. 37 ibid.

Legal Status of Eastern Greenland 141

excluded Greenland, the Faroe Islands and Iceland from the cession—thereby also signifying that Greenland would thereafter be delinked from Norway. Subsequently, and as a reaction to the Kiel treaty, Norway declared independence, but was ultimately forced into union with Sweden in the autumn of 1814. A Stockholm Convention of 1 September 1819 between Norway and Denmark effected the ‘complete liquidation of all matters arising out of the Union between Denmark and Norway’. The PCIJ considered a Norwegian attempt in the negotiations to formally claim the restitution of the Faroes, Iceland and Greenland at that time. The claim met with a Danish refusal, was withdrawn by Norway and formally renounced in a note to Denmark of 28 May 1819.42 In addition, the Court interpreted the Stockholm Convention as amounting to a renunciation of any further claims.43 Using modern legal classifications, state succession as regards a territory was thus an important issue in Eastern Greenland. While Norwegian circles may have perceived the forced cession as coercive and unjust, ultimately contributing to the chain of events that led to the occupation in 1931, there could be no doubt as to the clarity of the Norwegian renunciation of any residual claims to sovereignty in Greenland. The Court considered thereafter the period between 1819 and 1915, scrutinising displays of public authority, in particular treaty practice and concessions granted. It found that Denmark had continued to display its authority over the uncolonised part of Greenland to a degree sufficient to confer a valid title of sovereignty.44 The same applied to its exercise of governmental functions in the years leading up to 1931.45 The Court considered Norwegian claims that Denmark during and after the First World War, particularly in 1919, had attempted to ‘extend’ her sovereignty to the whole of Greenland. However, the use of the word ‘extension’ in Danish correspondence was not deemed decisive.46 Moreover, Denmark was not found to be estopped from claiming that Denmark possessed an old established sovereignty over all Greenland.47 Danish efforts to gain recognition that all Greenland was under Danish sovereignty, had been supported by the United states and other powers. A separate question was whether also the Norwegian Foreign Minister, Niels Claus Ihlen,48 had made a binding engagement to this effect when making an oral ‘declaration’ in 1919 that Norway would not oppose Danish claims. The PCIJ first considered more generally, and in detail, whether Norway had made any legally binding undertakings that recognised Danish sovereignty over all Greenland, or whether such undertakings only concerned the colonised

ibid, 65–66. ibid, 66–68. 44 ibid, 54. 45 ibid, 62–63. 46 ibid, 60. 47 ibid, 62. 48 Nils Claus Ihlen (1855–1925) was the Foreign Minister of Norway from 1913 to 1920. 43

142 Rolf Einar Fife parts of Greenland. The Court concluded that the Norwegian renunciation of claims in the 1819 Convention implied a recognition of Danish sovereignty over all Greenland.49 Moreover, the PCIJ found on the basis of a bilateral treaty of 1826, as well as multilateral postal conventions in 1920, 1924 and 1929, that Norway had reaffirmed that it had recognised the whole of Greenland as Danish.50 Finally, the Court considered in depth the assurance given by Foreign Minister Ihlen on 22 July 1919 to the Danish head of the diplomatic mission in Norway.51 This undertaking had been made in response to Denmark’s stated intention to obtain recognition of its sovereignty over the whole of Greenland at the 1919 Peace Conference in Paris after the First World War. It declared ‘that the Norwegian Government would not make any difficulties in the settlement of this question’. Significantly, the PCIJ found that Denmark and Norway had made two declarations of an equivalent nature concerning Greenland and Spitsbergen respectively.52 Denmark had, for its part, stated a week earlier, on 14 July 1919, that it was prepared to renew at the Peace Conference an unofficial assurance already given to the Norwegian Government on 2 April 1919 that, having no special interests at stake in Spitsbergen, it would raise no objection to Norway’s claims upon that archipelago. Accordingly, the Danish G overnment counted on the Norwegian Government not making any difficulties with regard to Danish intentions as to Greenland.53 Even if the D anish attitude to the Spitsbergen question and the Norwegian attitude in the G reenland question were not to be regarded as ‘interdependent’ and thus creating a bilateral engagement, the Court found that it could hardly be denied that the two declarations were of an ‘equivalent nature’.54 Consequently, Norway was also ‘under an obligation to refrain from contesting Danish sovereignty over Greenland as a whole and a fortiori to refrain from occupying a part of Greenland’.55 The Ihlen Declaration was found to be binding upon Norway. The majority view thus considered a variety of legal arguments to be relevant, with the collateral academic advantage of providing an analysis of a wealth of legal instruments throughout history—and an interesting account of diplomatic history and of domestic constitutional developments in Denmark and Norway. As regards the acquisition of territorial sovereignty, the judgment recalled that a claim of sovereignty not based upon some particular act or title such as a treaty

Eastern Greenland (n 1) 68. ibid, 69. ibid, 69–73. 52 The archipelago of Svalbard was formerly known as Spitsbergen. Since 1925 the latter name has been reserved for the main island, while the whole archipelago, including Bear Island, bears the name Svalbard. The summary that follows is drawn from RE Fife, ‘Denmark/Greenland–Norway (Svalbard)’, Report 9–25, in DA Colson and RW Smith (eds), International Maritime Boundaries (Leiden and Boston, MA, Martinus Nijhoff, 2011) 4513–31, which analyses the background and contents of the 2006 maritime delimitation agreement between Denmark and Norway for the area between Greenland and Svalbard. 53 ibid, 36–37 and 57–58. 54 ibid, 70–71. 55 ibid, 73. 50 51

Legal Status of Eastern Greenland 143 of cession but merely upon continued display of authority, must involve both the intention and will to act as sovereign, and some actual exercise or display of such authority.56 The judgment established that in thinly populated and inhospitable areas such as the Arctic and inaccessible territory concerned, a court may be 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.57 Such exercise of sovereign rights has to rely on display of state authority, or acts à titre de souverain, by a state.58 When confronted with a competing claim by another state, a limited display of authority was found to be sufficient to give rise to a valid claim to sovereignty. The judgment’s consideration of the requirement of effective exercise of sovereignty was criticised by Judge Dionisio Anzilotti in his dissenting opinion, noting ‘the disproportion between the claim to sovereignty over all Greenland and the effective exercise of that sovereignty’.59 On the other hand, Anzilotti held that the Danish request in 1919 and the declaration made in response thereto constituted the only agreement between the two countries that concerned the question submitted to the Court.60 On this account, he reached the same conclusion as the majority.61 The Norwegian ad hoc judge Vogt did not question that Denmark had an intention and will to act as a sovereign, ie animus possidendi, as regards the entirety of Greenland. He was however of the view that it had not provided sufficient evidence of a corpus possidendi, ie actual administration. Nor did Vogt question the, in principle, binding nature of the Ihlen Declaration. He held instead that the declaration had been given under conditions that had not later been met by the Danish side. IV. ENDURING INFLUENCE OF EASTERN GREENLAND

A. Acquisition of Territorial Sovereignty The 1933 judgment is indisputably part of classical international law, allocating territory, power and rights to states, as referred to by Crawford, with little concern for distributive justice or other considerations.62 While one has to exercise caution

Eastern Greenland (n 1) 45–6. The first element is often referred to as animus, the second to corpus. ibid, 46. 58 ibid, 45–46, 51, 54. 59 Dissenting opinion of Anzilotti, 83. 60 ibid 76, 94. 61 Judges Schücking (German) and Wang (Chinese) concurred with the majority. However, they issued jointly observations to the effect that Denmark’s diplomatic overtures toward other States between 1915 and 1921 proved that Denmark herself did not maintain towards those states the theory of an already existing Danish sovereignty over the whole island. In their view, Denmark sought instead to extend her sovereignty to it, with the assent of the states chiefly interested. 62 J Crawford, Chance, Order, Change: The Course of International Law, General Course on Public International Law (2013) 365 Hague Recueil 344, [607], fn 1260. For a distinction between classic coexistence law and modern cooperation law, see W Friedmann, The Changing Structure of International Law (New York, Columbia University Press, 1964) 60–64. See also the distinction between relational and institutional law (‘Le droit de la société relationnelle’ and ‘Le droit de la société institutionnelle’) in RJ Dupuy, Le droit international Que Sais-je?, 11th edn (Paris, Presses Universitaires de France, 2001); cf C Leben, ‘The Changing Structure of International Law Revisited 57

144 Rolf Einar Fife in reifying rules or treating them as discrete units,63 it should also be noted that key propositions in the 1933 judgment continue to resonate vibrantly in the legal arguments of international court-rooms and the jurisprudence concerning territorial sovereignty.64 They have become building-blocks in the reasoning of later judgments and arbitral awards concerning territorial sovereignty in less accessible or inhospitable territories, in regions as diverse as the Red Sea, the South China Sea and the Caribbean Sea.65 An illustration in this regard is provided by the 1998 arbitral award between Eritrea and Yemen. It concerned Red Sea islands and islets at the opposite end of the thermometer scales, as compared to Eastern Greenland. After having described these small or tiny islands as inhospitable, ‘waterless and habitable only with great difficulty’,66 the tribunal stated: It is well known that the standard of the requirements of such activity may have to be modified when one is dealing, as in the present case, with difficult or inhospitable territory. As the Permanent Court of International Justice said in the Legal Status of Eastern Greenland case, ‘[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 a superior claim’.67

Another example is provided by the 2002 ICJ judgment in the case between Indonesia and Malaysia concerning sovereignty over the ‘very small islands which are uninhabited or not permanently inhabited’ of Ligitan and Sipadan (Pulau Ligitan and Pulau Sipadan).68 Yet another was provided by the ICJ in the 2008 case between Malaysia and Singapore concerning the small island Pedra Branca/Pulau Batu Puteh at the point where the Straits of Singapore open up into the South China Sea.69 The Eastern Greenland reasoning related to thinly populated or unsettled territories has also shown its continued relevance in the geographic setting of the Caribbean Sea, as in the 2012 ICJ judgment in a case between Nicaragua and Colombia.70 By Way of Introduction’ (1997) 3 EJIL 399–408, and Spiermann, International Legal Argument (n 3) 48–49. Drawing on Anzilotti, Droit international, 44–45, Alf Ross referred to international law as a ‘law of coordination’ rather than of subordination: A Ross, Lærebog i Folkeræt, 5th edn (Copenhagen, Nyt Nordisk Forlag, 1980) 25–26. 63

W Twining and D Miers, How to Do Things with Rules, 5th edn (Cambridge, CUP, 2010) 102–07. importance of the Eastern Greenland judgment and of other developments in the Arctic for the development, unity and universality of international law is considered in RE Fife, ‘Arctic Reflections Among Receding Sea-ice’ in International Law of the Sea—Essays in memory of Anatoly L Kolodkin (Moscow, Statut, 2014) 206–21. 65 Award of the Arbitral Tribunal in the first stage of the proceedings between Eritrea and Yemen (Territorial Sovereignty and Scope of the Dispute (1998), 114 ILR 1, 118 [452]; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, [2002] ICJ Rep 625, 682, [134]; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment [2008] ICJ Rep 12, 35–36, [63]–[67]; Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment [2012] ICJ Rep 624, [80]. 66 Eritrea/Yemen (n 67) 31, [93] and 69, [239]. 67 ibid, 118, [452]. 68 Sovereignty over Pulau Ligitan and Pulau Sipadan (n 67) 682, [134]. 69 Sovereignty over Pedra Branca /Pulau Batu Puteh, Middle Rocks and South Ledge (n 67) 16, [22], 35–36, [63]–[67]. 70 Territorial and Maritime Dispute (Nicaragua v Colombia) (n 65) [80]. 64 The

Legal Status of Eastern Greenland 145 B. Unilateral Declarations of States In addition, Eastern Greenland triggered a doctrinal debate concerning unilateral declarations of states and its key dicta were later confirmed by the jurisprudence. The judgment found that an unconditional and definitive declaration made by the Minister of Foreign Affairs on behalf of his government in response to a request by the diplomatic representative of a foreign state, in regard to a question falling within his province, is binding upon the state to which the minister belongs.71 The Court itself referred to it as the ‘Ihlen Declaration’, which later became a familiar notion for students of international law and contributed to a debate on the role of unilateral declarations.72 As to whether domestic Norwegian law authorised Ihlen to make such a declaration, the court rejected the Norwegian argument that he was constitutionally incompetent under domestic law to issue it. The Court held that the oral declaration made on 22 July 1919 by Norway’s Foreign Minister constituted an ‘undertaking’ that obliged Norway ‘to refrain from contesting Danish sovereignty over Greenland as a whole, and a fortiori to refrain from occupying a part of Greenland’.73 This was not as such a Norwegian recognition of Danish sovereignty over the island in its entirety. It signified, however, an obligation to refrain from contesting the Danish position in this regard.74 The Court found that a foreign minister under the concrete circumstances was presumed to have authority to bind the state:75 The Court considers it beyond dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs.

There may be reason to pause before extrapolating this presumption without discernment. First, the Court undertook a thorough analysis of the circumstances at hand, which were closely related to a multilateral event, the Paris Peace Conference after the First World War, and a sequence of concrete diplomatic exchanges that made it clear that the declaration was ‘unconditional and definitive’.76 Second, the Court identified a Danish declaration of a similar nature, which was ‘interdependent’ with the Ihlen declaration.77 Thirdly, it is interesting to note Rousseau’s emphasis on the particular circumstances of an oral statement thereafter consigned

Eastern Greenland (n 1) 71. example JG Campos, LS Rodríguez and PA Sáenz de Santa Maria, Curso de Derecho Internacional Público, 2nd edn (Madrid, Civitas, 2002) 140; Crawford, Brownlie’s Principles (n 12) 416; P Daillier, M Forteau and A Pellet, Droit international public, 8th edn (Paris, LGDJ, 2009) 395–36, [236]–[237]; R Kolb, Interprétation et création du droit international (Brussels, Bruylant, 2006) 246–47. 73 Eastern Greenland (n 1) 73. 74 The Court had incidentally also found that Norway previously had recognised Danish sovereignty over all Greenland, inter alia on the basis of the 1819 Treaty referred to above. 75 ibid, 71. 76 ibid, 72. Further guidance may be drawn from Anzilotti’s dissenting opinion, which placed additional emphasis on the existence of what, in his view, amounts to an accord between Denmark and Norway. 77 ibid, 70. 72 For

146 Rolf Einar Fife in written form and taken note of in the other representative’s presence. In his view, this ‘must have exercised a decisive influence on the Court’s decision’.78 This seems to be confirmed by the Court’s references to the way the Danish request and Mr Ihlen’s reply were recorded by him in a minute.79 There was therefore no possible basis for disputing or questioning the statement’s authenticity. This may contribute to explaining why the Court did not follow the approach of the 1927 Arbitral Award of the Mixed Romanian–Hungarian Arbitral Tribunal in Kulin, which decided not to attach decisive weight to oral statements of a Hungarian delegate in Brussels in 1923.80 Anzilotti came to the same result in his dissenting opinion.81 In his view, no international legal rule required that such a declaration be made in written form. As already noted, he held that the Danish request in 1919 and the declaration made in response thereto constituted the only agreement between the two countries that concerned the question submitted to the Court.82 This had also an influence on McNair, who considered the arrangement as an ‘informal agreement’.83 While there has been no disagreement as to whether Norway had made a legally binding undertaking, views have thus been more divided as to the purely unilateral nature of the declaration and whether the circumstances in Eastern Greenland really made the Ihlen Declaration a classic case of autonomous unilateral engagement. For this reason, later legal theory and jurisprudence has instead relied heavily on the 1974 Judgments in Nuclear Tests.84 Nevertheless, it is fair to say that Eastern Greenland provided a seminal development that triggered the emergence of this topic in international law and its main tenets were confirmed by later jurisprudence. In 2006, the International Law Commission adopted its ‘Guiding Principles applicable to unilateral declarations of states capable of creating legal obligations’, reflecting this jurisprudence.85 It is thus on the above two accounts that the judgment has contributed to shaping classic international law, in the sense of the law essentially concerned with the interstate rules of mutual respect for state sovereignty and abstention from interference in such sovereignty.86 The jurisprudence confirms that the 1933 judgment not only is part of classical international law, as related to a key historical period of the legal system’s development, but also of classic international law, in the broader sense of having a lasting and enduring systemic significance.

C Rousseau, Droit international public (Paris, Sirey, 1970) vol 1, 419. Eastern Greenland (n 1) 69, 70. 80 Affaire des optants hongrois (Emeric Kulin père c État roumain) (1927) 7 TAM 138; see also Decisions of the 50th session, 1998, ILC Ybk, vol 2, part 1, 329, [86]. 81 Eastern Greenland (n 1) Anzilotti, dissenting opinion, 91–92. 82 ibid, 76 and 94. 83 McNair, The Law of Treaties (Oxford, OUP, 1961) 10. 84 See Nuclear Tests (Australia v France), Judgment [1974] ICJ Rep 253. Nuclear Tests (New Zealand v France), Judgment [1974] ICJ Rep 457. 85 Report of the International Law Commission, 58th session, 2006 (A/CN.4/L.703), [176]. The Guiding Principles were taken note of by the United Nations General Assembly on 4 December 2006 with resolution A/RES/61/34. 86 Friedmann (n 62); Spiermann, International Legal Argument (n 3) 48. 79

Legal Status of Eastern Greenland 147 V. CRITICAL REFLECTIONS: THE NATURE OF INTERNATIONAL LEGAL ARGUMENT

The dissenting opinion of Anzilotti and his criticism of the majority’s legal arguments concerning acquisition of territorial sovereignty were influential in legal doctrine. The Court’s handling of the test of effectiveness was thus summarised by Hyde as87 deference for the value of ancient claims as the foundation of rights of sovereignty over an unpossessed and unexplored territory, unwillingness to derive abandonment thereof from a mere cessation of any visible connection between the claimant sovereign an such territory for some two centuries, and a readiness to accept as tests of the limits of territorial pretensions over a vast area remaining unoccupied even in the twentieth century, something other and less than actual administrative control throughout the same.

Anzilotti’s argument was also largely echoed by Alf Ross, arguably the most influential Danish international lawyer in the period after the Second World War. He asserted that mere legislation over a territory without any authority of enforcement amounts to ‘empty pretensions’.88 In his view, the judgment meant that the Court in this situation had in reality given up asserting any real requirement of effectiveness. In the context of a lasting and effective occupation within a given larger, naturally defined area, within which no other state had carried out any colonisation, a mere will to extend the occupation to the entire area would then prove sufficient to create a legal entitlement that had to be respected by other states. This he referred to as being, in reality, a theory of geographical unity. However, instead of stating as much in plain words, the Court had in his view sought to achieve a result in conformity with the rule of occupation. In his view, this undermined the very contents of the principle of effectiveness and represented an act of dissimulation. Such an act was unhelpful since it easily could lend itself to arbitrary conclusions as to what would generally be required in terms of effective occupation. These arguments rested in fact on the view that Court had applied a doctrine of continuity or geographical unity. This also seems to have had some influence, at least among Nordic lawyers.89 They have, however, been effectively rebutted by Waldock, who recalled that ‘effective occupation’ does not mean physical settlement of the territory but effective display of state activity. This the Court found that Denmark had displayed in regard to the whole of Greenland, slight though the impact of that authority might have been in the contested part of the island.90 He observed that the geographical unity of Greenland was an important fact in assessing the limits of Denmark’s state activity. Nevertheless, geographical continuity would have been to no avail if Denmark had not established some state activity displayed in regard to the whole island. Thus, the Court’s judgment did not conflict with the views of Judge Huber in Island of Palmas.91 87 C Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States vol I, 2nd edn (1945) 336, quoted by H Briggs, The Law of Nations—Cases, Documents and Notes, 2nd edn (London, Stevens & Sons, 1953) 250–51. 88 A Ross, A Textbook of International Law (London, Longmans, Green and Co, 1947) 146–47. 89 See Alfredsson (n 7) 268, [11]. 90 Waldock (n 10) 343–44. 91 ibid.

148 Rolf Einar Fife If one follows Anzilotti’s broader criticism, which was largely echoed by Alf Ross, one might also be tempted to consider that the Court’s majority did not draw its main inspiration from ‘Ockham’s Razor’, or a principle of simplicity, according to which the better explanations can do with fewer, instead of multiplying hypotheses. An understandable and laudable inclination towards Ockham’s ideal might possibly have contributed to later legal theory often being less than kind as to the quality of the majority’s legal reasoning. Koskenniemi has used the judgment as an illustration of the general substantial indeterminacy of international law. He had held that ‘[t]he embarrassing dilemma is that by failing to indicate a preference between fact (possession) and views about fact (recognition), dispute-solution fails to be guided by any rule at all’.92 As regards Eastern Greenland, he observed that:93 Every argument was interpreted so as to point in the same direction: the conduct of third states implied recognition of Danish sovereignty; Danish conduct constituted effective possession; Norway had recognized Danish sovereignty; as it had recognized Danish sovereignty, its own acts could not amount to effective possession.

And, as the razor-sharp Ockham might have done, he added that: The decision was overdetermined. The same conclusion was drawn from conflicting premises. The embarrassing dilemmas involved in an effort to make a preference were awarded by presuming that there was no conflict.94

While stimulating, these categorisations made in 1989 are at least debatable. This concerns, for instance, the amalgamation of acquiescence, recognition and various other forms of consent, but also the question as to what was really in issue. As already mentioned, in its pithiest form, the question was not whether Denmark had sovereignty in Greenland, but whether that sovereignty covered Greenland as a whole or there could instead remain terrae nullius open to occupation. This also explains why the meaning of the term ‘Greenland’ as either the colonised area or the island as a whole, emerged as a key object of interpretation in several contexts. These contexts include the assessment of evidence of an actual display of state authority, as documented by legal acts and instruments of a domestic or international nature, as well as the documented attitude of other states in this regard.95 It is also debatable whether this can be reduced to a tension between pure facts and a legal approach to sovereignty.96 Significantly, the PCIJ applied principles of interpretation as regards treaties, unilateral declarations and domestic administrative or legislative acts, for the purpose

92 M Koskenniemi, From Apology to Utopia—The Structure of International Legal Argument (Cambridge, CUP, 1989, with epilogue 2005) 288. 93 ibid, 293. 94 ibid, 293. Reference is also made in the 2005 epilogue, ibid 578, to this judgment together with an increasingly fact-focused and contextual territorial jurisprudence of the ICJ in the 1990s. 95 For a general rebuttal of Koskenniemi’s substantive indeterminacy, see Crawford, Chance, Order, Change (n 62) 123–35. 96 On the relationship between title and effectivités, see Kohen, Possession contestée (n 12) 209–10.

Legal Status of Eastern Greenland 149 of ascertaining the actual use or ordinary meaning of the term ‘Greenland’ in various contexts.97 More than three decades before the adoption of the 1969 Vienna Convention on the Law of Treaties—and long before Wittgenstein followed by Oxford philosophers of language had delved into the notion of ‘ordinary meaning’ and the relationship between rule-following and practice—the Court signified, in a nutshell, that the meaning of the word was its use in language.98 Acting, in a way, as harbinger for the principle later codified in the Vienna Convention Article 31(4), the Court established that Norway had the burden of proof for any unusual or exceptional meaning of the term:99 The geographical meaning of the word ‘Greenland’, i.e. the name which is habitually used in the maps to denominate the whole island, must be regarded as the ordinary meaning of the word. If it is alleged by one of the Parties that some unusual or exceptional meaning is to be attributed to it, it lies on that Party to establish its contention.

Moreover, Koskenniemi held that the Court’s role in Eastern Greenland largely amounted to an effort to reduce the scope of the dispute, to the extent of verging towards a conclusion that there actually existed no disagreement whatsoever between the parties.100 Careful consideration of the possibilities of reducing the scope of a dispute is however not entirely foreign to the process of peaceful settlement of disputes. The PCIJ thoroughly considered the conduct of the parties and identifiable patterns, reflecting a particular interest for any expressions of consent in its various forms as a traditional cornerstone in the production of rules in international law, as well as acquiescence in its broadest possible sense. Moreover, this was the first time ever a standing international court considered a dispute of acquisition of territorial sovereignty. As shown by Waldock, the Court confirmed legal consistency with clear authority provided by recent arbitral decisions in Island of Palmas (1931) and Clipperton Island (1932) as regards requirements of continued display of state authority in particular geographical contexts.101 While this may be a sociological observation rather than a normative assessment related to the quality of the legal argument, it may be useful to consider not only what the Court was saying, but what it was doing. From an institutional vantage point, it was still in the phase of establishing its credentials as the first World Court, in the first contentious case concerning the basic structure of legal argument pertaining to the establishment of territorial sovereignty. It is also worthwhile noting the composition of the Court. It was presided over by the Japanese lawyer Mineichiro

Eastern Greenland (n 1) 49, 52 and 58. See the general rule of interpretation contained in the Vienna Convention on the Law of T reaties of 23 May 1969, Art 31, in particular paras 1 and 4. As regards philosophy of language, see in particular L Wittgenstein (GEM Anscombe and R Rhees (eds), GEM Anscombe (tr), Philosophical Investigations (Oxford, Blackwell, 1953) 43. Among the Oxford philosophers’ turn to ordinary language, see for example G Ryle, Ordinary Language (1953) in Collected Papers II (London, Hutchinson, 1971), 316. 99 Eastern Greenland (n 1) 49. The same principle was applied by the Court to treaties (52) and unilateral declarations (59). 100 Koskenniemi (n 92) 293. 101 Waldock (n 10) 315, 321, 335 and 337. 98

150 Rolf Einar Fife Adachi (also spelled Adatci), known for his considerable diplomatic experience, in addition to his legal skills. The court’s vice-president was the Salvadoran jurist Gustavo Guerrero, who had been foreign minister 1927/28 and later succeeded Adachi as president of the PCIJ, and ultimately became the first president of the ICJ. The court included other prominent national lawyers, notably the former Chinese Minister of Justice Wang Ch’ung-hui, who later became foreign minister.102 It may be worthwhile to consider how the Court brought together experiential knowledge relevant for delicate international dispute settlement, in addition to what is sometimes referred to as textual knowledge, as represented by prominent legal professors such as Dionisio Anzilotti. There is a challenge in rendering commensurable different traditions or, in short, producing commensurability.103 The identification of building-blocks of consensus may have required turning a number of stones. If the decision was ‘overdetermined’, thus sacrificing Ockham’s ideal of simplicity, this may have appeared as a small sacrifice, if the effect was to build a broad m ajority and quasi-unanimity of result. The majority appears to have sought to identify the existence of consensual bases in the form of instruments or engagements that would lend themselves to interpretation. In the case of Anzilotti, this resulted in narrowing down on the engagements made in 1919, which were deemed to amount to an accord, whose breach by Norway constituted what we today would have termed an internationally wrongful act entailing state responsibility. The majority considered a range of other engagements as relevant, but laid considerable emphasis on the 1819 liquidation agreement between Denmark and Norway as being a settlement of what we today would have called a state succession. In both cases, as well as in the case of judge ad hoc Vogt, the judgment sheds light on basic principles of interpretation of agreements and of unilateral declarations. As already noted, the general rule that was applied, including the appurtenant burden of proof that was established, appear familiar today in light of the relevant provisions of the 1969 Vienna Convention on the Law of Treaties and customary international law. The painstaking analysis of different legal bases might be linked to a legitimation effect, in order to enhance acceptability along several competing world views

102 President Adachi had previously inter alia participated in the negotiations ending the Russo-Japanese war in 1905, the Paris Peace Conference in 1919, represented Japan as ambassador in Brussels 1920–27 and in Paris 1927–30 and presided the Council of the League of Nations. While engaged in various capacities in work for the Council he was inter alia its rapporteur in 1923 in conciliation efforts pertaining to the Hungaro-Romanian land reform, which led to the 1927 arbitral award in the Kulin case: n 80 above). See F Castberg, Excès de pouvoir en justice international (1931) 35 Hague Recueil 37; A Mandelstam, ‘Conciliation internationale’ (1931) 35 Hague Recueil, 534. As regards the prominent Chinese judge Wang, see Ole Spiermann, ‘Judge Wang Chung-hui at the Permanent Court of International Justice’ (2006) 5 Chinese Journal of International Law 1, 115–28. 103 I owe this expression and perspective to Sanjay Subrahamanyam: see inter alia his ‘Par-delà l’incommensurabilité: Pour une histoire connectée des empires aux temps modernes’ (2007) 54 Revue d’histoire moderne et contemporaine 34, which appeared in an early electronic version in English: ‘Beyond Incommensurability: Understanding Inter-Imperial Dynamics, Theory and Research in Comparative Social Analysis’, Paper 32, Department of Sociology (UCLA, Los Angeles, 2005).

Legal Status of Eastern Greenland 151 and interests, based on common principles of interpretation.104 The requirements of negotiating a broad common platform included considering, weighing and absorbing several perspectives and legal bases. Ockham’s ideal of simplicity thus might have to be relegated to a dissenting opinion, as compared to the establishment of an overwhelmingly clear majority. It may have reappeared in the court’s formulation of the applicable principles of interpretation. This leads to a brief digression on the merits of Vaughan Lowe’s reminder that ‘International law has always owed more to bricolage and pragmatism than to the cold logic of bloodless scholarship’.105 Bricolage is a word often intuitively associated with improvisation. In a legal context, it might appear to be at variance with substantive determinacy or enhanced legal security and predictability. However, the metaphor of the ‘bricoleur’ takes on a different and inspiring form in Levi-Strauss’ anthropology, and might also be helpful in this context:106 The example of the ‘bricoleur’ helps to bring out the differences and similarities. Consider him at work and excited by his project. His first practical step is retrospective. He has to turn back to an already existent set made up of tools and materials, to consider or reconsider what it contains and, finally and above all, to engage in a sort of dialogue with it and, before choosing between them, to index the possible answers which the whole set can offer to his problem … But the possibilities always remain limited by the particular history of each piece and by those of its features which are already determined by the use for which it was originally intended or the modifications it has undergone for other purposes.

The PCIJ was dealing, in essence, with problem-solving and had to make do with what was at hand—it may be suggested that it did so respectably.107 And, as observed by Levi-Strauss, the totality of means at the disposal of the ‘bricoleur’ cannot easily be defined as a project.108 Similarly, when Lowe referred to pragmatism, in addition to bricolage, one may reflect on John Dewey’s conception of inquiry, which provides an understanding of the nature of pragmatism:109 He sees inquiry as beginning with a problem; we are involved in ‘an indeterminate situation’. And inquiry aims for ‘the controlled or directed transformation of an indeterminate situation into one that is so determinate in its constituent distinctions and relations as to convert the elements of the original situation into a unified whole’.110

104 The legitimation effect originally analysed by Max Weber, has undergone various transformations in regard to legal theory, see for instance D Kennedy, A Critique of Adjudication (fin de siècle) (Cambridge, MA, HUP, 1997) 236ff, 398ff. 105 Lowe, International Law (n 12) 142. 106 C Lévi–Strauss, La pensée sauvage, in Oeuvres (Paris, Gallimard, 2008) 576–77; translated from the French by George Weidenfield and Nicholson Ltd, The Savage Mind (Chicago, University of Chicago Press, 1966), based on La Pensée savage (Paris, Librarie Plon, 1962); http://web.mit.edu/allanmc/www/ levistrauss.pdf. 107 In Lévi-Strauss’s parlance (n 106), ‘les “moyens de bord”’. 108 ibid, ‘L’ensemble des moyens du bricoleur n’est donc pas définissable par un projet’. 109 J Dewey, ‘Logic: the Theory of Inquiry’ in L Hickman and T Alexander (eds), The Essential Dewey Vol 2 (Bloomington and Indianapolis, Indiana University Press, 1998) 169–79. 110 ibid, 171.

152 Rolf Einar Fife Both approaches are compatible with a strive for systemic coherence in international law.111 This requires a painstaking analysis, which is also be advocated by Anzilotti:112 The best way of appreciating these overtures is, in my view, to allow the documents relating to them to speak for themselves. Though the attitude adopted by the Danish Government is, in a sense, the most important factor, the answer given by the foreign governments must also be noted, either because it shows how the Danish request was understood, or because the Danish Government, in accepting these answers without observations or reservations, showed that it accepted the interpretation placed by the other Government upon its request.

The cumulation of alternative legal bases and reasoning in Eastern Greenland may therefore not only be linked to a desired legitimation effect, it may also reflect problem-solving and promote systemic coherence. As highlighted by Marcelo Kohen, the rules pertaining to acquisition of territorial sovereignty have a bearing on international peace and security—and related requirements of stability have today to be considered as part of the broader framework of the law of the United Nations Charter.113 Alfredsson has implied that the judgment has lost its relevance as regards the consideration of ‘disputes of a colonial character’, because it did not consider decolonisation or issues of indigenous peoples’ rights, in spite of an acknowledgement in the judgment of Inuit presence.114 Thus, he asserted115 Today, the right of colonized peoples to external self-determination would be of paramount consideration … As to acquisition of territory and effective occupation, therefore, the applicable law has undergone substantial changes when it comes to the fate of separate and overseas territories that are inhabited by non-European or non-Western peoples and administered by European or Western Powers.

No reference was made in the judgment to later developments concerning indigenous populations or peoples, nor for instance to the status of non-self-governing territories under the United Nations Charter. This may hardly be surprising in 1933. The core question raised in the application by Denmark in Eastern Greenland was whether the declaration of occupation promulgated by Norway on 10 July 1931 was unlawful, to which the Court replied in the affirmative. Legal theory has later debated whether indigenous communities not regarded as states could be regarded as occupants of their territory, with the effect of precluding terra nullius status and the possibility of occupation, or whether only state sovereignty was sufficient to preclude occupation.116 The ICJ advisory opinion in Western Sahara 1975 affirmed a restrictive concept of terra nullius, and excluded from it territories inhabited by peoples having a social and political organisation.117

111 MacCormick,

Legal Reasoning (n 19) 106–08 and 119–218. Eastern Greenland (n 1) Dissenting Opinion of Anzilotti, 77 [3]. 113 Kohen (n 12); see also the preface of George Abi-Saab in this regard. 114 See Alfredsson (n 7); ‘Greenland and the Law of Political Decolonization’ (1982) 25 GYIL 290–308. 115 Alfredsson (n 7) 268 [10]. 116 Crawford, Creation of States (n 12) 263ff. 117 Western Sahara [1975] ICJ Rep 12, 39 [79]–[80]. 112

Legal Status of Eastern Greenland 153 While passing reference has been made in the debate to Eastern Greenland’s mention of the Inuit inhabitants of Greenland, this case was decided on other grounds. The position of original inhabitants, moreover concentrated in Western Greenland and not in the territory in issue, was not discussed in argument.118 In Eastern Greenland the Court found that international agreements concluded in 1814 and 1819 amounted, in reality, to state succession. Sovereignty over Greenland had been transferred in its totality from Norway to Denmark. A later question could have been to what extent the principle of uti possidetis juris would have had any bearing on Greenland. Yet a separate perspective under international law is the development of obligations pertaining to the rights of indigenous peoples, as Denmark and Norway are parties to ILO Convention 169 of 27 June 1989 no 169 concerning Indigenous and Tribal Peoples in Independent Countries, which require the adoption of measures not raising the issue of external self-determination.119 VI. BEHIND THE SCENES

History has a marvellous way sometimes of providing hindsight. What actually happened in 1931? What was the role of government and that of private actors, and for those especially interested: what role did international lawyers play? Recent historiography has contributed new perspectives on what happened behind the scenes on the Norwegian side. The ‘Greenland case’ has often been interpreted within a broader context of polar colonisation, in addition to the specific economic interests of fishers and seal hunters.120 The concrete chain of events that ultimately triggered the filing of the court case started out, in fact, as part of a private conspiracy, involving even a tale of ‘cloak and dagger’. To ensure secrecy, a key activist supporter of Norwegian sovereignty in Eastern Greenland, Carl Marstrander, travelled on 26 June 1931 from Oslo to Gothenburg.

118 Crawford (n 12), 267–68 fn 66, as compared to LC Green and OP Dickason, The Law of Nations and the New World (Edmonton, University of Alberta Press, 1989). 119 For an overview of the Greenland Inuit (the kalaallit), see the statement of Finn Lynge on behalf of Denmark in the Oral Pleadings of the ICJ Greenland Jan Mayen case, CR 93/2, Public sitting, held on Tuesday 12 January 1993. 120 This was brought to an extreme in Gustav Smedal, Grönland und die Monroe-Doktrin, Monatshefte für Auswärtige Politik, 7 July 1941, 521–31. Smedal (Oppgjør og forståelse, n 10), had established himself as a key strategist for an aggressive, nationalist brand of territorial activists, speaking in favour of occupation of East Greenland, organising the private occupation in 1931 and ultimately taking part in the legal team before the Court. After the judgment in 1933, he continued, however, as an irredentist. He was drawn to membership in Quisling’s National Socialist (NS) party and, after the Nazi invasion in 1940 of Denmark and Norway and the ensuing US occupation of Greenland, he sought to mobilise German support to re-open the issue of sovereignty in Norway’s favour, this time claiming Norwegian sovereignty over all Greenland, allegedly to thereby restore immemorial links between the territory and the Kingdom. The above article in German is thus premised with a reference to ‘the ties that link the history of the Norwegian population from time immemorial to Greenland’ and to ‘the strong and lively interest in Norway for the polar regions’ (Norwegen, wo die Bevölkerung von den ältesten Zeiten ihrer Geschichte an mit Grönland verbunden gewesen und wo das Interesse für die Polargebiete stark und lebendig ist). Nevertheless, Smedal did not succeed in persuading Berlin. After the Second World War he was sentenced for his NS activities. His 1930 doctoral thesis remains however an important source in the legal history of territorial acquisition in the Arctic, see inter alia references in n 10 above.

154 Rolf Einar Fife Marstrander was a prominent professor of Celtic languages at the University of Oslo, but acted now under cover of being a pastor Jonas Dahl. Under that fictitious name, he sent the following coded message to the leader of a hunting expedition in Greenland: ‘The gospel is proclaimed across the city of Oslo, pastor Dahl’.121 This happened to be the order activating a plan to carry out the occupation of Eastern Greenland. At the receiving end of that message was Hallvard Devold. He had led an expedition to Greenland between 1926 and 1928 and started out on a new one in 1929, with a team of trappers and scientific researchers. He was deeply convinced that Denmark was determined to drive the Norwegians out of Greenland and he was intent on protecting Norwegian interests in Eastern Greenland. Upon receiving the coded message, he proceeded to carry out the ceremony of hoisting the Norwegian flag and declaring an occupation of the territory named Erik the Red’s Land (Eirik Raudes Land).122 This name was evocative of early Viking exploits in North America. Nevertheless, that name was less firmly grounded in reality than that of the site chosen for the hoisting of the flag, less romantically named Mosquito Bay.123 On the same day, 26 June, the Foreign Affairs Committee of the Norwegian Parliament (Storting) had actually staked out a different course of events. It had recommended that Norway should engage in negotiations with Denmark with a view to finding a satisfactory solution to a long-standing dispute concerning hunting and fishing rights in Greenland.124 The private occupation was perceived as a direct challenge to both Government and Parliament, particularly as it was combined with the launch of a carefully orchestrated press campaign.125 It came after a protracted series of events that had pitted a group of activists, whose views were in part supported by the legal adviser to the Foreign Ministry, Professor Frede Castberg, against the Government. The group called for a more forceful defence of Norwegian interests in the A rctic, since these had increasingly been threatened by the Danish hunting and fishing monopoly over the whole of Greenland, the 1921 enlargement of Soviet territorial waters to 12 nautical miles and closure of the White Sea to Norwegian trappers and the 1926 Soviet proclamation of the Sector principle, which declared sovereignty over all Arctic areas north of Russia. What followed was not politicians setting aside cautious advice from international law experts. On the contrary, an almost unanimous international legal expertise in Norway supported a rapidly growing extra-parliamentary movement. This coalition caused the government to take a different course—in the teeth of a parliamentary majority. Professor Frede Castberg was legal adviser to the Norwegian Foreign Ministry and later became rector of the University of Oslo, and was a key adviser as regards 121

Drivenes and Jølle (eds), Into the Ice (n 9) 296. ibid, 297. In Norwegian: Myggbukta. 124 An approach that received full support in the plenary of the Parliament, in a closed session held on 24 June 1931, see Fure, Mellomkrigstid (n 9) 130. 125 Various newspapers carried the news on 29 June, leading to great popular interest. The Government responded nevertheless to a question from the Danish diplomatic mission in Norway on that day that it would not be swayed by the private occupation, though not condemning it: see ibid 130–31. 122 123

Legal Status of Eastern Greenland 155 events in 1931. He recounts in his memoirs a nuanced narrative.126 He referred to a unanimous assessment amid international lawyers in Norway that Eastern Greenland was ‘no man’s land and that it would be permissible for Norway to occupy it’. Castberg did however not advocate the course proposed by the newly appointed minister of defence, Vidkun Quisling.127 In a ministerial meeting where Castberg was present, Quisling had allegedly spoken in favour of a state occupation. In his view, ‘such a policy would conform to a general contemporary trend of assertive and energetic conduct, which could create a fait accompli’ and referred to the 1922 coup by the polish general Zeligowski, that had led to Polish control over Vilnius.128 Castberg marked sharp opposition to ‘such a military operation and favoured instead a course of action limited to enhancing the legal basis for a possible case before an international court’. The only aim of such action would be to prevent Denmark pre-empting Norway with acts of occupation on her own. Castberg regretted the belated consideration of such action, since a Danish expedition under the leadership of Knud Rasmussen was already on its way to the territory. Undoubtedly stung by criticisms of constitutional irregularities by the Government, Castberg discarded as totally unwarranted any analogy between ‘international judicial policy’ of this kind and a ‘policy amounting to a military coup’.129 A newly appointed Norwegian government was in May 1931 taken aback by the mounting popular campaign in favour of occupation. Prime Minister Kolstad characterised it as an ‘unwarranted intrusion into our foreign policy’.130 A fortnight later, however, on 10 July 1931, the Government relented. It proclaimed a formal (state) occupation of Eirik Raudes Land.131 The next day, Denmark brought the case before the PCIJ. The Norwegian Parliament subsequently became the foremost critic in Norway of the 1931 occupation and of its consequences.132 As regards the policy that led to the occupation of Eastern Greenland in the first place, later historiography has revealed how private initiatives actually had undercut policy, and how foreign policy came to follow as a function of these initiatives. In addition, the evidence does not reveal a case of politicians willing to take risks in side-stepping caution recommended by international legal advisers, but rather lawyers driving policy, albeit for reasons that now appear more circumspect and respectable than some would have it in the aftermath. It should be noted, however, that the decisive legal advice actually provided by Castberg contained both a dose of activism and circumspection on 2 July 1931, less 126 F Castberg, Minner—om politikk og vitenskap fra årene 1900–1970 (Oslo, Universitetsforlaget, 1971) 20–24 and 29–35. 127 At the time, Quisling was not yet member of the National Socialist party and this was before his name became associated with the Nazi occupation of Norway. 128 Castberg, Minner (n 126) 29. 129 ibid, 30. 130 Drivenes and Jølle (eds) (n 9) 300. 131 Fure (n 9) 131. 132 In spite of stinging parliamentary criticism, constitutional lawyers have not deemed it necessary under the Norwegian constitution to seek prior parliamentary approval before proceeding to an act of occupation. This includes F Castberg, Norges Statsforfatning, 2nd edn (Oslo, Arbeidernes aktietrykkeri, 1947) vol II, 178; J Andenæs, Statsforfatningen i Norge, 7th edn (Oslo, Tano, 1990) 301.

156 Rolf Einar Fife than a week after the private occupation had been announced and a week before the Government decided to issue its proclamation:133 In my opinion, bringing land in Eastern Greenland under Norwegian sovereignty does not create a better basis for handling an international legal dispute than if no Norwegian occupation takes place. Should Norway not undertake an occupation, the claim in dispute settlement would have to be based on Eastern Greenland being no-man’s land. Even if a judgment would find in favour of Norway in this regard, this would however not be satisfactory for Norway. Should a judgment decide that the territory is no-man’s land, for instance at the time when proceedings should be instigated, this would not prevent Denmark from afterwards taking steps to acquire sovereignty. Naturally there is no way one can predict with absolute certainty the outcome of an international dispute settlement in such a case. International legal rules in this field are too vague to provide such an answer. However, it would be quite unacceptable to portray the occupation by a state of no-man’s land, which another state claims to be entitled to, as contempt for modern international justice and a modern policy based on the League of Nations. Support for efforts to strengthen international justice does of course not mean that one will waive or renounce one’s national interest within the limits of one’s assumed entitlement. The latest developments in international justice are precisely what makes it possible in so many cases to make national claims without any real risk of triggering warfare or unfriendly relations between nations. When a Norwegian occupation in Eastern Greenland among others in the Swedish press has been compared to the Polish occupation of Vilna or the Italian one in Fiume,134 we can only observe that there are in practice almost no similarities between the military occupation of densely populated cities and land areas that are in another state’s possession and, on the other hand, the peaceful inclusion under national sovereignty of an almost uninhabited territory, in conformity with international legal rules pertaining to no-man’s land. The only thing in common between a military occupation and occupation of terra nullius under international law is the word ‘occupation’. VII. THE AFTERMATH

As already indicated, the judgment settled not only a legal issue, but also a major political controversy. The judgment was accepted with ‘dignity’ by the parties.135 Arguably, it even helped shaping Norwegian foreign as well as domestic policies in the aftermath. The Norwegian Government repealed the two resolutions of 1931 and 1932 proclaiming sovereignty over parts of Eastern Greenland. The Norwegian Parliament issued a strong criticism of the treatment of the whole issue of occupations. With a broad majority the Foreign Affairs Committee noted that Denmark had contributed to activating traumatic elements and a feeling of injustice in the collective recollection of Norwegians, but it added:136

133 Translation to English by the author. F Castberg, ‘PM Okkupasjonsspørsmålets stilling i dag’ in Utredninger om Folkerettsspørsmål 1922–1941 (Oslo, Thronsen, 1950) 237–38. 134 This actually reflected Quisling’s argument in the cabinet (n 127). 135 Dollot (n 3) 161; Waldock (n 10) 350. 136 Author’s translation. Parliamentary Archives (Stortingets arkiv), Innst S nr 166 (1933:72), quoted by Fure (n 9) 131.

Legal Status of Eastern Greenland 157 The Committee has found it paramount on its part to do whatever it can to ensure that what we have experienced during these years never be repeated. We must effectively prevent that important decisions be ripped out of the hands of the competent authorities, that loose agitation become a substitute for calm assessment and objective deliberation, and that one act behind the back of Parliament.

One can only speculate whether this experience was later instrumental in strengthening the role of the Norwegian Parliament in foreign affairs. If so, the issues raised by Eastern Greenland have had a lasting domestic impact in Norway. According to Waldock and Dollot the Court had established principles that would be applicable to Antarctica.137 International cooperation as regards the latter continent led, however, to the adoption in 1959 of the Antarctica Treaty whereby all territorial claims and protests were frozen in Article IV. The judgment’s major impact was therefore in the Arctic, including a significant contribution to understanding of the collateral legal history and status of Svalbard (Spitsbergen) and related engagements.138 In Part IV we have seen how the judgment also became a building block in the reasoning of later judgments and arbitral awards concerning territorial sovereignty in inhospitable territories. In the aftermath, the court case led to recriminations on the Norwegian side, including by Professor Jon Skeie, who had participated in the Norwegian legal team before the Court. He published stinging criticisms against individual members of the team and politicians who had been involved.139 In sharp contrast to such recriminations, and foreshadowing that Eastern Greenland would become a landmark case, professor Castberg held a lecture in Stockholm while the proceedings were still ongoing, where he stated sentences that may stand as a conclusion:140 I believe that the judgment that will be issued next year at The Hague may in some respects become a landmark in the development of international law. This is due to the important questions of legal principle that the judgment will have to decide as regards certain disputed areas of international law but also to the fact that this court case sets a precedent in that a state institutes proceedings against another before an international court in a case that concerns important, national questions. As for Norway and Denmark this case and the judgment will undoubtedly—and whatever the outcome—clear the air like a thunder storm and leave behind a fresher, healthier atmosphere in the relations between two peoples that—in spite of everything—are bound to each other through so many and strong bonds.

137

Waldock (n 10) 350; Dollot (n 3) 162. See above nn 17 and 65. 139 J Skeie, Politikere og diplomater i Grønlandssaken (Oslo, Olaf Norli Forlag, 1933). 140 Translated by the author from the Norwegian quotation in Castberg, Minner 35 from a lecture before the Norwegian Association (Det norske samfunn) in Stockholm 1932. 138

158

8 Trail Smelter (United States of America/Canada) (1938 and 1941) DUNCAN FRENCH

It is an awkward fit with other rules of international environmental law, and … it is at the same time a cornerstone of that law.1

I. INTRODUCTION

HE TRAIL SMELTER Arbitration (United States/Canada)2 would undoubtedly be characterised as a landmark case, particularly if the principal criterion for such status is subsequent repetition leading to widespread and near-universal endorsement. As a pivotal—and indeed foundational—moment in the development of international environmental law, Trail Smelter (as it is invariably reduced to in metonymic form to represent cumulatively the facts, the judgment and, most prominently, the international legal principle enunciated therein) has received significant attention, if not something approaching legal veneration. No discussion of the history, formulation or gradual hardening of this particular area of international law would be complete without citation, usually positive, of this particular case.3 In addition to its specific focus on responsibility for transboundary air pollution—which has subsequently developed into a more general rule of customary international environmental law—it is also pointed to as an early intergovernmental environmental dispute (and a successfully resolved one at that),4 as well as, more generally, being one of a series of original moments in the emergence of the

1 J Ellis, ‘Has International Law outgrown Trail Smelter?’ in R Bratspies and R Miller (eds), Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (Cambridge, CUP, 2006) 64. 2 Reports of International Arbitral Awards, 16 April 1938 and 11 March 1941, vol III, 1905–82. 3 See, for instance, P Sands and J Peel, Principles of International Environmental Law, 3rd edn (Cambridge, CUP, 2012) 26: ‘The award … and its finding on the state of international law on air pollution in the 1930s has come to represent a crystallising moment for international environmental law’ and R Barnes, Property Rights and Natural Resources (Oxford, Hart, 2009), which describes the award as the ‘locus classicus of this rule’. 4 cf T Stephens, International Courts and Environmental Protection (Cambridge, CUP, 2009) 124.

160 Duncan French dominant politico-legal environmental narrative, such as the publication in 1962 of Rachel Carson’s Silent Spring5 or the reaction to the high profile Torrey Canyon marine pollution incident in 1969;6 such is its perceived, and projected, importance. There were, of course, earlier legal (and judicial) precursors on environmental matters than Trail Smelter, which are equally worthy of reference—take for instance the 1893 Award arising from the Bering Sea Fur Seals Arbitration7—but, as a defining point in the formulation of general legal principle, it is Trail Smelter that attracts much of the normative attention. This has, of course, a lot to do with the context and timing of the award (an initial decision in 1938 and a final award in 1941) on an issue of increasing relevance, namely the transboundary impact of industrialisation, and the paucity until even relatively recently of international environmental case law. But more than that—and in a way this differentiates the earlier Bering Sea Fur Seals arbitration—Trail Smelter has remained influential because of the apparent clarity of the principle stated. It remains the only decided international case that is squarely on the issue of transboundary air pollution; with the Aerial Herbicide (Ecuador v Colombia) case—which concerned, not atmospheric industrial pollution, but the transboundary drift of herbicide spraying—being settled in 2013 before the International Court had the opportunity to rule on the merits.8 This chapter therefore seeks to achieve a rather difficult balance. It would be churlish in a collection on landmark cases not to laud Trail Smelter as an important arbitration and award; as deserving a place in the pantheon of singularly remarkable, even historic, international cases. Would it not be slightly curious for a case, which is generally accepted as providing a foundation for an entire sub-discipline of international law, to not be worthy of such attention? But as the quotation from Ellis above indicates, and as this chapter explores, much about Trail Smelter is not what it seems. Despite frequent citation across the standard array of normative outlets—court decisions, pleadings, by academics, in the work of the International Law Commission (ILC) inter alia—the complexity of the dispute is often ignored, instead replaced by focusing attention on just one sentence (or indeed only part thereof)9 in the final award: under the principles of international law, as well as of the law of the United States, no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.10

5 On the role of prominent individuals in the development of international environmental consciousness, see M Drumbl, ‘Actors and Law-Making in International Environmental Law’ in M Fitzmaurice, D Ong and P Merkouris (eds), Research Handbook on International Environmental Law (Cheltenham, Edward Elgar, 2010) 13. 6 For detail, see Sands and Peel, Principles of International Environmental Law (n 3) 391. 7 Great Britain v United States (1893) Moore’s International Arbitration 755. 8 See Application Instituting Proceedings (31 March 2008) and Order of 13 September 2013 (Removal from List). 9 See K Mickelson, ‘Rereading Trail Smelter’ (1993) 31 Canadian Yearbook of International Law 219, 226: ‘the discussion tends to focus on this single celebrated (or denigrated) passage’. 10 Reports (n 2) 1965.

Trail Smelter 161 The chapter will return to how these words have been understood—and misunderstood—later, but it is equally interesting to reflect on how far a case becomes important less because of itself but because of how even a very small part of it is subsequently taken up, used and repeated. In thinking about the invariably ‘landmark-ed’ nature of this particular dispute, it has been useful to reflect on a timeline of four epochs in the development of such a case. These are not chronological per se—though to a large extent there is a semblance with time passed— but rather they indicate a process by which a case (and certainly this arbitration), subsequent to it being handing down, might thereafter evolve.11 The first epoch is repetition and endorsement; a case becomes significant because it is adopted—not necessarily through citation by other courts and tribunals (though that may be an element of this)—but equally because it is included in legal argumentation and the development of state practice, policy and doctrine. Importantly, this is not about a case becoming a formal legal precedent, nor necessarily is it about the strength of its reasoning (though one always hopes that might be a consideration). As the history of Trail Smelter reveals, the apparent enunciation within the decision of a putative general(-ised) principle can be a particularly influential reason for its wider adoption. The second epoch is myth-making. The case becomes relied upon and incessantly quoted, rarely with reference to the circumstances in which it occurred, and primarily for the establishment of a general principle. It is used to justify a legal norm that is broader than the court or tribunal, which gave the ruling, envisaged. At this stage, the risk of over-simplification is significant. The third epoch is deconstruction; either dismissal of the significance of the Award or, much more likely, an attempt to reconnect the principle with the particularities (both substantive and procedural) of the case itself. Either way, it is often a critical attempt to reanalyse, perhaps in some cases even relegate, the generality of its relevance and application. This has certainly occurred with Trail Smelter,12 with one commentator—to whom I will return—seeing the importance of the arbitration more in terms of it being a ‘case-study’ in environmental dispute settlement, than as a landmark ‘case’. Finally, the fourth epoch is re-evaluation; seeking to rebalance the myth of the case with the criticism, which it has received. How can a case that has been so widely used, referenced and endorsed now be understood when placed against such (usually very incisive) criticism? With Trail Smelter, this is where the debate arguably now stands. Thus, this chapter is structured as follows. Part II will set out in some detail the background to the dispute, the procedure of the arbitration and the award itself. Not only is the case itself worth significant attention, but such examination reveals a number of under-researched and under-reported facets of the dispute, which are lost through a narrow filtering of its meaning. While not undermining the viewpoint that Trail Smelter is deserving of inclusion as a landmark case, the chapter reveals

11 There is indeed a parallel with the literary criticism of la mort de l’auteur, which indicates that once published, the writing takes on an independence unrelated to, and detached from, its creator. The original argument arose from an essay by R Barthes, ‘The Death of the Author’ (1967) Aspen 5–6. 12 See various contributions to Bratspies and Miller, Transboundary Harm (n 1). As the editors say in their introduction, ‘There are important lessons to be learned from a modern engagement with Trail Smelter—including both novel applications with the arbitration and a real sense of its limitations’ 10.

162 Duncan French features that both contextualise and particularise the original dispute. Part III then explores the assumed significance of Trail Smelter; how it has indeed become that foundational case, principally centred around the quoted sentence above. Within this discussion, there will be a review of the development of international environmental law as a discipline comprising soft law, conventional regimes and, increasingly, case law, as well as how that complex interplay of sources has itself provided normative justification for what then became known as the ‘no harm’ principle. Part III then moves on to summarise an array of criticisms of Trail Smelter; questioning its right to be viewed as a ‘great’ case whilst concurrently suggesting that there are alternative models of analysis still worthy of exploration in relation to either the award or, more broadly, the dispute. Such criticisms are manifold but can be divided largely into two types: analysis of how the case has been subject to over-simplification and misinterpretation over the decades (without necessarily criticising the arbitration itself); and, more fundamentally, criticism of the reasoning of the arbitral tribunal. Part IV, in conclusion, in seeking to bridge the gap between the arbitration’s acquired status and such criticism will provide a re-evaluation of the case and tentatively conclude that questions over its normative significance tells us as much about the structural development of international law as it does about the subject matter of this particular case. Moreover, whilst one cannot predetermine how a case will be subsequently interpreted, reimagined and refined, there is equally value in not extracting general principle at the expense of, or perhaps more precisely without consideration of, the factual circumstances that led to that point. II. TRAIL SMELTER: THE DISPUTE, ARBITRATION AND AWARD

The beginning of the timeline of the Trail Smelter dispute—as with many disputes which are prompted by something other than a discrete, or one-off, event—is invariably subject to some contention. The Award itself provides as authoritative a summary of the history of the dispute as one is likely to find.13 As the Tribunal noted, a smelter factory was established in Trail in British Columbia, Canada in 1896, which since 1906 had been owned and operated by the Consolidated Mining and Smelting Company of Canada, Limited. The proximity, and geographical lie of the land, between Trail and the Canadian/United States border was of particular relevance; ‘The distance from Trail to the boundary line is about seven miles as the crow flies or about eleven miles, following the course of the river (and possibly a slightly shorter distance by following the contour of the valley’.14 As will be seen, the Tribunal found it extremely necessary to study the topographical and climatic conditions between the smelter and the affected parts of the United States, in this case the northern reaches of the State of Washington, in significant—arguably unprecedented—detail. Thus, this part will consider the background to the dispute, the arbitration and the Award, as each provides a complexity and a richness invariably lost in the subsequent repetition of a singular phrase or principle, often in abstraction.

13 14

See, in particular, Reports (n 2) 1913–19. ibid, 1913.

Trail Smelter 163 A. The Dispute The factory was involved in the smelting of zinc and lead ores in significant quantities, leading it to become ‘one of the best and largest equipped smelting plants on this continent’.15 In particular, the development of the smelter between 1925 and 1927 through the erection of two high chimney stacks of approximately 410 feet not only increased still further its level of production but increased the quantity and concentration of sulphur dioxide emitted as a consequence. As the Tribunal noted, ‘it is claimed by one government (though denied by the other) that the added height of the stacks increased the area of damage in the United States’.16 Nevertheless, it seems beyond dispute—and certainly accepted by the Tribunal—that the tonnage of sulphur emitted from the smelter rose substantially over the first three decades of the twentieth century, with an important factual finding in the Award that ‘From 1925, at least, to the end of 1931, damage occurred in the State of Washington, resulting from the sulphur dioxide emitted from the Trail Smelter’.17 The arbitral Tribunal was established by means of an international agreement, the Convention for Settlement of Difficulties arising from Operation of Smelter at Trail, BC, signed and ratified in 1935. The highly specific nature of the ‘difficulties’—a term I will return to—cannot be lost. This was essentially a compromis (if somewhat of an unusual sort) between two governments relating exclusively to the operation of a private business in the territory of one, causing harm to the other. Some of the provisions of the Convention will be considered momentarily, though it is worth noting three aspects of the wider context to the dispute. First, this was not the earliest attempt at settlement in relation to the smelter’s emissions. Back in 1927, the United States had proposed to Canada that the International Joint Commission (IJC)— established in 1909 by the Boundary Waters Treaty18—should investigate the matter. The IJC had authority under Article IX of the 1909 Treaty to investigate and report on ‘any other questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier between the United States and the Dominion of Canada’. Significantly, such a report by the IJC ‘shall in no way have the character of an arbitral award’. On the acceptance of Canada to make such a reference to the IJC, and following a detailed investigation which included evidence of both witnesses and scientific experts, the IJC issued its report in February 1931. In the report, the IJC proposed that an ‘indemnity [be paid] that will compensate United States interests in respect of such fumes, up to and including the first day of January, 1932 … the sum of $350,000’.19 Thereafter, the IJC recommended that if damage were to continue after this date—something which the IJC sought to minimise by proposing various technical measures to reduce the emission of sulphur dioxide—the two governments were to agree on the level of indemnity ‘“in the event of”’ such a private

ibid, 1917.

16 ibid. 17 ibid. 18 19

10 IPE 5158. Reports (n 2) 1918.

164 Duncan French claim of harm ‘“not being adjusted by the company within a reasonable time”’.20 The IJC report—despite its analytical rigour—proved not acceptable, particularly to the United States, and subsequent correspondence between the governments eventually led to the 1935 convention to establish the Tribunal. The second aspect of the wider context, often ignored, was that the owner of the smelter itself recognised the potential damaging nature of its operations and the likelihood of harm across the border. As the Award noted, it ‘took the matter up seriously and made a more or less thorough and complete investigation’.21 Indeed, the smelter company negotiated with a number of property owners in the State of Washington and concluded settlements in a number of instances. This occurred in the period 1926–28. However, these bilateral negotiations (primarily with farmers) came to end with the establishment of a ‘Citizens’ Protective Association’—a nongovernmental organisation—which included within its Articles a prohibition of individual settlements without the majority consent of its board of directors, something which then did not occur.22 Thirdly, and something which will be discussed later when considering both the myth of Trail Smelter and the critique of the arbitration, what is often lost is that the intergovernmental dispute arose principally because of perceived weaknesses in the domestic legal system of both countries. The law of the State of Washington provided limited opportunity for the Canadian company, which owned the smelter to resolve the dispute, either through the purchase of affected property or the purchase of so-called smoke easements.23 The Tribunal recognised the legal limitations on the company’s ability to settle the dispute at a local level, but noted that both as a matter of ‘fact or as to the law, the Tribunal expresses no opinion and makes no ruling’.24 Likewise, Canadian law was viewed as unsupportive of the private interests of American claimants. As Read notes: It was the general opinion of the lawyers concerned at the time that the British Columbia courts would be compelled to refuse to accept jurisdiction in suits based on damage to land situated outside of the province. Apart, therefore, from the practical difficulty confronting some hundreds of claimants in bringing suits in a foreign forum, there was the moral certainty that they would lose.25

Thus, just as it is a misrepresentation of the Award in Trail Smelter to view it in reductionist form as only an enunciation of the principle of state liability for transboundary harm, it is also a simplification of the dispute to view it purely on the intergovernmental plane, setting to one side the interests of both the smelter company and those private actors whose interests were harmed, or were allegedly harmed. True, the dispute was between the two governments—and indeed, the Tribunal was very

ibid, 1919. ibid, 1917. 22 ibid. 23 On the use of such easements, see J Read, ‘The Trail Smelter Dispute’ (1963) 1 Canadian Yearbook of International Law 213, 223. 24 Reports (n 2) 1918. 25 Read, ‘The Trail Smelter Dispute’ (n 23) 222. 21

Trail Smelter 165 clear that the United States was acting in its own sovereign capacity and not as agent for a claim of diplomatic protection26—but the identification of a single polluter and the causal link between the emissions and the harm caused meant that this was much more than just a standard intergovernmental bilateral arbitration. Read, who was involved in the proceedings on the Canadian side, perhaps describes it best (if a little ambiguously) as ‘transmuting the claims by individuals against the Trail Smelter into claims sounding in international tort by the United States against Canada’.27 In the intervening years, there has been progress on principles of transboundary civil justice to support private actions in such instances, though there is much that could still be achieved, and there is by no means uniformity in approach.28 B. The Arbitration To fully appreciate the complexity of the dispute, one needs to consider some of the essential features of the 1935 convention, which established the arbitration. First, whilst not endorsing the IJC report, Article I nevertheless required the Canadian Government to pay the United States $350,000 ‘in payment of all damage which occurred in the United States, prior to the first day of January, 1932’. Importantly, the Article is silent on the legal basis for this, something of a stumbling block for subsequent comment in seeking to elucidate from the case a general rule on historic responsibility. Secondly, Article IV of the convention sets out both the applicable law and the overall object of the arbitration, as follows: The Tribunal shall apply the law and practice followed in dealing with cognate questions in the United States of America as well as international law and practice, and shall give consideration to the desire of the high contracting parties to reach a solution just to all parties concerned.

Article IV thus embedded the parameters, but also highlighted the peculiarities, of the arbitration, namely, the requirement to consider both US and international law and practice; recognition of both governmental and private interests; and an apparent synergy between legal settlement (narrowly conceived) and broader dispute resolution. Whereas the first of these three characteristics—the applicable law—is perhaps obvious from the face of the wording of Article IV, though no less significant for that, the other two are worth further consideration. First, it is quite clear that though Canada and the United States are the ‘high contracting parties’, the reference to ‘all parties concerned’ is intended to be wider and includes (not only them) but both the smelter and those potentially harmed by the sulphur emissions. It is arguable that it also included those impacted by the economic opportunities that the

26 Reports (n 2) 1912: ‘The Tribunal is not sitting to pass upon claims presented by individuals or on behalf of one or more individuals by the Government, although individuals may come within the meaning of “parties concerned”’. 27 Read (n 23) 223. 28 See, for instance, 2006 Toronto Report of the International Law Association Committee on Transnational Enforcement of Environmental Law (www.ila-hq.org/en/committees/index.cfm/cid/31).

166 Duncan French smelter created in terms of employment, and which would be impacted by too punitive or restrictive a final award. Secondly, as the Tribunal makes clear particularly in the 1941 Award, its role is to balance legal adjudication—respecting the usual rules and expectations arising therefrom—with ensuring a just solution29 captured, in the view of the Tribunal, by the reference in the Convention’s preamble to reaching a ‘permanent settlement’. Not appreciating the particularity of this mandate has again resulted in a subsequent over-generalisation of the arbitration, as well as perpetuating confusion as to the role, significance, and meaning of equitable considerations in transfrontier harm disputes. To recognise that there is indeed this tension between what the Tribunal achieved and what it is often believed to have achieved, one only needs to review the questions, which it was asked to ‘finally decide’ upon. Article III sets out the four questions, worth quoting in full: 1 2 3 4

Whether damage caused in the Trail Smelter in the State of Washington has occurred since the first day of January, 1932 and, if so, what indemnity should be paid therefor? In the event of the answer to the first part of the preceding Question being in the affirmative, whether the Trail Smelter should be required to refrain from causing damage in the State of Washington in the future, and, if so, to what extent? In the light of the answer to the preceding Question, what measures or régime, if any, should be adopted or maintained by the Trail Smelter? What indemnity or compensation, if any, should be paid on account of any decision or decisions rendered by the Tribunal pursuant to the next two preceding Questions?

It is important to note on what issues the Tribunal was not asked to decide. It was not asked to rule on historical damage up to 1932; as noted above, Article I having already settled this by the transfer of monies from the Canadian government to United States, though notably without any specific statement as to the legal basis as to why, or if indeed this was because of any liability on the part of the Canadian state. Moreover, if one reads closely, the Tribunal was also not asked to rule on Canadian responsibility, either subsequently to 1932 or prospectively. Rather the question relates to what is expected of Trail Smelter, and what ‘indemnity or compensation’ should be paid. In this regard, there was recognition—in questions 2 and 3—that damage might be ongoing and thus what measures should be adopted to ameliorate such harm and—in question 4—what indemnity should be paid ‘on account of any decision or decisions rendered’.30 There is very little in these questions pointing the Tribunal towards making legal determinations, or taking an explicitly normative approach, to state responsibility and liability under international law. Of course, putting oneself in the shoes of those drafting the convention, these were neither principal nor pragmatic considerations. As Read notes, ‘at the time of negotiation, those who were concerned were thinking in terms of smoke damage caused

See JG Merrills, International Dispute Settlement, 5th edn (Cambridge, CUP, 2011) 96. framing of questions 1 and 4 on the payment of indemnity might, paradoxically, allow for the elaboration of contrary arguments that this was both an acceptance (and a rejection) of strict liability in international law. In truth, neither position is sustainable, nor can a general principle be inferred from this bilateral convention. 30 The

Trail Smelter 167 by a Canadian corporation to a very large number of private interests, mostly farmers and owners of wood lots, in Washington’.31 This arbitration was not about the application (never mind the development) of abstract rules of customary international law—as it is sometimes retrospectively portrayed—but resolving the dispute in the most effective manner, relying primarily on the rules of US negligence as the principal means of settlement.32 Following the appointment of the three-member Tribunal, chaired by the thirdparty jurist Jan Frans Hostie of Belgium, it was supported in its work by two scientists, one designated by each government, who were ‘to assist the Tribunal’ as permitted under the convention.33 As will be noted below, this scientific expertise is clearly evident in the depth of the scientific analysis in the Award, as well as helping the Tribunal to devise the ‘measures or régime’ envisaged under question 3. The Tribunal undertook its work through the usual steps of adopting its rules of procedure, exchange of pleadings, as well as a detailed site visit, and various sessions for the hearing of evidence from the governments, interested parties and experts—all of which occurred during the summer and autumn of 1937. Read was particularly complimentary of the arbitrators on this point; ‘When the members of the Tribunal inspected the area involved … it was no casual survey. They made a close examination of many of the farms and orchards and cruised the forests. When they heard the evidence, the witnesses and experts were talking about places and conditions familiar to them’.34 On completion of this stage of the proceedings, the Tribunal began the difficult task of seeking to answer the questions asked of it. It is at this point that what might have been a relatively straightforward arbitral award—at last from a procedural perspective—became something much more interesting. Again, this is something which is rarely picked up when the dispute is viewed singularly in terms of fixating on a particular principle, and divorced from the broader context. Under Article XI of the 1935 Convention, the Tribunal was required to report its final decision within three months of conclusion of the proceedings, unless such period was extended by agreement of the two governments. As the agents of both governments jointly informed the Tribunal on 2 January 1938 that they had nothing else to present, that three-month clock would have required the publication of the final Award by 2 April of the same year. The Tribunal informed the governments that it could indeed provide such an award by then, but that it would be ‘on the basis of data which it considered inadequate and unsatisfactory’.35 The governments agreed to a time extension of three months from 1 October 1940, which was eventually extended again until 12 March 1941; the final Award ultimately being delivered a day before that deadline.

Read (n 23) 222. ironically, the Canadian Government would have been more concerned by any reliance by the Tribunal on Canadian law; ‘Those precedents were unfavourable to industrial enterprise, and, if applied, might be disastrous to the Smelter’ (ibid, 227). 33 Art II, para 4 of 1935 Convention. 34 Read (n 23) 215. 35 Reports (n 2) 1912. 32 Somewhat

168 Duncan French The Tribunal nevertheless did issue an Award on 16 April 1938, which it said at the time was a ‘final decision’ on question 1, and a temporary decision under questions 2 and 3. The apparent finality of question 1 became a significant feature of the 1941 Award. Significantly, the preliminary decision to question 3 was to establish a temporary (if nonetheless innovative and complex) regime for a trial period to allow the Tribunal to ‘predict, with some degree of assurance, that a permanent régime based on a more adequate and intensive study and knowledge of meteorological conditions in the valley … will effectively prevent future significant fumigations in the United States, without unreasonably restricting the output of the plant’.36 The Tribunal justified this need for a temporary regime quite clearly on what it viewed as the ‘primary purpose of the Convention’, namely to ensure that the final outcome was a just solution and a permanent settlement. C. The Award In discussing the Award of the Trail Smelter arbitration it is important to recognise both the separateness of the two decisions, as well as the unity of the Award as a whole. True, there is significant repetition of the facts within the two decisions—as the Tribunal refers to them37—but there is also value in each. Stylistically and, to some extent, as regards content, there is a distinction between the two decisions. There are noticeably few references to international law in the 1938 Decision, focusing substantially on the scientific and technical information, as well as US tort law. On the other hand, in the 1941 Decision—despite also containing significant detail on the scientific and technical information, particularly in establishing the permanent regime—there is much more discussion of international law, not only to the (in) famous reference to Canada’s responsibility in international law cited in the introduction, but also on matters such as res judicata and whether judicial decisions are open to revision and reconsideration. The geographical narrowness of the 1938 Decision—unsurprising given the nature of the dispute—also gives way to a more policy-attuned approach in the 1941 Decision. As between the two countries involved, each has an equal interest that if a nuisance is proved, the indemnity to damaged parties for proven damage shall be just and adequate and each also has an equal interest that unproven or unwarranted claims shall not be allowed. For, while the United States’ interests may now be claimed to be injured … it is equally possible that at some time in the future Canadian interests might be claimed to be injured by an American corporation … The Tribunal should endeavour to adjust the conflicting interests by some ‘just solution’ which would allow the continuance of the operation of the Trail Smelter but under such restrictions and limitations as would, as far as foreseeable, prevent damage … and as would

ibid, 1934. the remainder of this part, they will be referred to as the ‘1938 Decision’ and the ‘1941 Decision’. Elsewhere in the chapter, unless otherwise specified, they will be referred—as they have been up to this point—collectively as the ‘Award’. 37 For

Trail Smelter 169 enable indemnity to be obtained, if in spite of such restrictions and limitations, damage should occur in the future in the United States.38

The Tribunal in answering the questions asked of it—in particular, in devising the permanent regime for the Trail Smelter—was acutely aware not only of the economic consequences of measures that would impose undue burdens, even potential closure, upon a key industry (which would ‘exaggerate … the interests of the agricultural community’), whilst at the same time ensuring a balance with other interests (‘the agricultural community should [not] be oppressed to advance the interest of industry’).39 Thus, returning to the title of the 1935 convention—‘difficulties arising from operation of smelter at Trail’—it is apparent that the Tribunal viewed its role as principally prospective in finding a meaningful—and agreed—way forward for both governments, which was in the interests of all parties, rather than adjudicate per se on legal wrongs. A perhaps alternative perspective would be to say that the law— both domestic (US) and international—was used as a meaningful framework for the construction of a balancing of interests, satisfactory to all parties. This chapter is unable to provide a detailed analysis of the Tribunal’s answers to each of the four questions. In particular, it is unable to examine the Tribunal’s approach to the US law of nuisance or trespass, or to set out the scope and complexity of either the temporary or permanent regime established. What is important to note however is that the Tribunal was guided to—and did indeed establish—such a regime, within the context of the questions asked of it. Recognising the establishment of this regime as a fundamental feature of the decision also underlines the argument that ‘A “contextualised” analysis is both more accurate and more useful than the standard invocation of abstract principles’.40 If it is impossible to consider the Award in detail, several aspects are nevertheless worth drawing out. First, while much has been made of the fact that the Tribunal awarded damages in respect of ‘owned’ property (agricultural land and forestry) but not in respect of damage to unowned land41—thus positing the argument that Trail Smelter is precedent against damage for pure environmental harm—this is a simplification of the reasoning of the Tribunal on two counts. First, to my mind, the Tribunal does not rule out expressly the award of damages for environmental harm per se though admittedly the focus of the Award is for damages based on loss of use or rental value. Many of the claims failed because of a lack of direct causal evidence of harm. For instance, the Tribunal noted that ‘it is impossible to determine whether such damage has been due to fires or to mortality of trees and shrubs caused by fumigation’.42 Similarly, the Tribunal rules out awarding damages for a failure

Reports (n 2) 1938–39. ibid, 1939. 40 Mickelson, ‘Rereading Trail Smelter’ (n 9) 232. 41 Aerial Herbicide Spraying (Ecuador v Colombia): Written Memorial of Ecuador, Volume I (28 April 2009), para 10.17: ‘The two awards of the Arbitral Tribunal [in Trail Smelter] did not deal with pure environmental damage per se, and did not assess damages in respect of injurious consequences to the Colombia River’. See also A Boyle, ‘Reparation for Environmental Damage in International Law: Some Preliminary Problems’ in M Bowman and A Boyle (eds), Environmental Damage in International and Comparative Law: Problems of Definition and Valuation (Oxford, OUP, 2002) 19. 42 Reports (n 2) 1926. 39

170 Duncan French of reproduction of fir trees near the boundary for a lack of scientific evidence.43 There remain, of course, valid arguments as to whether, and how far, pure ecological damage outside private ownership would have been compensable in US law at the time in any event, but the case is beyond a singular general principle, one way or the other.44 Secondly, it also clear that the Tribunal does not award damages in all cases of ‘owned’ property; claims of indemnity for alleged damage to livestock, urban property and reduced profitability of business enterprises were all denied— for lack of evidence in the first two cases, and for reasons also of remoteness in the last instance.45 Moreover, in the 1941 Decision, the Tribunal also refused to award further damages (to cover the period between the decisions) for alleged harm to crops and forestry, on the basis of lack of evidence.46 Such analysis of what was— and what was not—compensated, and for what reasons, is often lost in summary discussions of the Award. Secondly, in what now might seem a curious argument arising from the 1938 Decision, the United States sought to argue before the Tribunal that it should reconsider that part of the 1938 Decision where the Tribunal had decided that ‘damage’ under question 1 did not include the cost of the investigations that the United States had undertaken in assessing whether the smelter had caused damage in the State of Washington. As the Tribunal had noted in the 1938 Decision, this was the only costs the United States had set next to its claim for damages in respect of violation of its own sovereignty. The Tribunal concluded that such investigatory costs were not within the definition of damage as intended by both governments in drafting the 1935 Convention, nor could they be awarded as incidental to the other damages which were. In something of a mild rebuke, the Tribunal noted that such costs are likely in an international dispute ‘where each government has incurred expenses and where it is to the mutual advantage of the two governments that a just conclusion and permanent disposition of an international controversy should be reached’.47 Unsurprisingly, such an approach to costs has become characteristic of international arbitration, though as recently as 2015, the Tribunal in Arctic Sunrise (Netherlands v Russian Federation) (2015) had occasion to rule that the Dutch claim for, inter alia, survey expenses and incidental fees were to be borne by the party presenting its own case.48 Nevertheless, despite the relative small amount in question—$89,655: small compared not only to that claimed overall, but particularly when contrasted with the size

ibid, 1930.

44 Significantly,

there was indeed limited indemnity for damage which might now be viewed as pure environmental harm. See ibid, 1926: ‘As regards these lands in their use as pasture lands, the Tribunal is of opinion that there is no evidence of any marked susceptibility of wild grasses to fumigations, and very little evidence to prove the respective amounts of uncleared land devoted to wild grazing grass and barren or shrub land, or to prove the value thereof, which would be necessary in order to estimate the value of the reduction of the use of such land. The Tribunal, however, has awarded a small indemnity for damage to about 200 acres of such lands in the immediate neighborhood of the boundary’ (emphasis added). 45 ibid, 1931. 46 ibid, 1959. 47 ibid, 1933. 48 Award of 14 October 2015 [396], [400].

Trail Smelter 171 of the other claims rejected—it was this failed claim, which the United States asked the Tribunal to reopen and reconsider. The argument of the United States raised two distinct legal questions; was the 1938 Decision on question 1 res judicata and, even if it was, did the Tribunal have the authority to review its previous decision in light of a material error of law. To an international lawyer, these are demonstrably questions of international law, though the Tribunal was faced with the initial question as to whether the provision in the 1935 Convention on applicable law—which included both US and international law—applied and, if so, how. It is at this point, one can arguably see a discreet ‘turn to’ international law in the overall Award. The Tribunal was adamant; these were issues of international law: that it ‘shall proceed as international law, justice and equity may require’.49 This is significant, not only for its reasoning but because it allowed the Tribunal to assert its autonomy from both governments and to allow it to access a body of general principle not bound within the confines of either the 1935 Convention, or US law and practice. The Tribunal, though already having asserted that its answer in the 1938 Decision to question 1 was final, nevertheless considered previous cases where res judicata had been raised by arbitral tribunals and the Permanent Court of International Justice (PCIJ). Relying on this jurisprudence, the Tribunal comes decisively to the view that as ‘The three traditional elements for identification: parties, object and cause … are the same’,50 there was no doubt that there was res judicata on this particular issue. This, of course, did not deal with the issue entirely as the United States had also claimed an error in law by the Tribunal. In a particularly interesting and informative section of the 1941 Decision, the Tribunal first considers its authority to review a decision (outside of any provision of the compromis), before considering earlier awards and judgments which had touched upon revision, including the PCIJ cases of Saint Naoum Monastery,51 as well as the 1907 Hague Convention for the Pacific Settlement of Disputes. The authority on this issue was significantly less settled than on the matter of res judicata and the Tribunal is left to determine for itself the appropriate test. In an important ruling that ‘mere error in law is no sufficient ground for a petition’,52 and that the terminology of ‘essential error’ is mistaken, the Tribunal finds the true test ‘on the strength of precedents and practice’ was whether the Tribunal had made a ‘manifest error’,53 in this case in the interpretation of the 1935 Convention, which the Tribunal moreover finds has not been made out. This aspect of the Tribunal’s Award—much overlooked in favour of its contribution to environmental jurisprudence—is nevertheless a notable contribution to the development of the administration of this particular aspect of international justice.54

49 Reports (n 2) 1950, referring to Art 16 of its own Rules of Procedures (adopted at its hearing on 21–22 June 1937). 50 ibid, 1952. 51 Advisory Opinions, Series B, No 9, 21. 52 Reports (n 2) 1957. 53 ibid. 54 See C Brown, A Common Law of International Adjudication (Oxford, OUP, 2007) 167.

172 Duncan French D. Responsibility for Transboundary Harm The aspect of the Award that requires most attention, and the one for which it is most renowned, is its answer in the 1941 Decision to question 2: ‘… whether the Trail Smelter should be required to refrain from causing damage in the State of Washington in the future and, if so, to what extent?’. As noted above, on its face this is not a question demanding an answer in international law. Moreover, as the Tribunal makes clear in its opening remarks on this question—the principal issue before it was one of disagreement between Canada and United States as to what precisely constituted damage. Canada supported the International Joint Commission view in its earlier report that damage—at least damage that might prompt a duty on the smelter to respond—did not include ‘occasional damage … [including] by reason of unusual atmospheric conditions’.55 One might suggest this is the application of a de minimis test. The United States, on the other hand, refused to accept a definition which might exclude injury ‘regardless of the remedial works … and regardless of the effect of those works’.56 This would seem to approach something close to a strict liability rule. It was of course this disagreement that had, inter alia, led to the conclusion of the 1935 Convention and the arbitration. Part—but only part—of the answer to this disagreement was determined by the Tribunal in what would become its most famous sentence, set out again for ease of reference: ‘under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’. But considering this sentence alone, viewed in abstraction, and outside of the context of how the Tribunal reasoned both up to this point and then how it finalised its answer to question 2 thereafter, fails to reflect the more nuanced, and arguably controversial, approach taken by the Tribunal. In fact, there is overall very little recognition or reference to placing Canada’s obligations within a general international law frame. Thus, it might prompt one to ask whether the discussion of Canada’s customary responsibility is but a rhetorical flourish or, in legal terms, obiter? Notably the Tribunal assimilates to no small degree the law of the United States and international law. It does so, in part, by reasoning that the factual nature of the relations between federal states is sufficiently similar to that of sovereign states.57 As the Tribunal notes at separate points: —— The law followed in the United States in dealing with the quasi-sovereign rights of the States of the Union, in the matter of air pollution, whilst more definite, is in conformity with the general rules of international law.58

Reports (n 2) 1962. ibid, 1963. 57 The Tribunal (ibid, 1963) also relies on an unnamed, though cited, Swiss case, involving two of its cantons concerning transfrontier aspects of a shooting establishment, analogising again that the situation is similar as the matter involves ‘territorial relations’. 58 ibid, 1963. 56

Trail Smelter 173 —— For it is reasonable to follow by analogy, in international cases, precedents established by [the Supreme Court] in dealing with controversies between States of the Union … where no contrary rule prevails in international law.59 —— What the Supreme Court says … under the Constitution equally applies to the extraordinary power granted this Tribunal under the Convention. What is true between States of the Union is, at least, equally true concerning the relations between the United States and the Dominion of Canada.60

In particular, the Tribunal notes the absence of international case law on transfrontier harm, be it air or water pollution, but adds that ‘certain decisions of the Supreme Court of the United States which may legitimately be taken as a guide in this field of international law’.61 It is unclear if the Tribunal was thinking of Article 38(1)(d) of the PCIJ Statute—identical to the present ICJ Statute—so that domestic ‘judicial decisions … as subsidiary means for the determination of rules of law’ [sic], or whether its reference to ‘guide’ was jurisprudentially disconnected from and/or looser than the reference set out in the World Court Statute. The Tribunal cites a number of US cases, including State of Missouri v State of Illinois,62 State of New York v State of New Jersey63—both water pollution cases—and State of Georgia v Tennessee Copper Company and Ducktown Sulphur, Copper and Iron Company, Limited64—which concerned atmospheric pollution—to assist it in its reasoning. The New York v New Jersey case seems particularly apposite as language from that case referencing harm that is of ‘serious magnitude … established by clear and convincing evidence’ finds its way into the Tribunal’s own reasoning. Separately, the Georgia v Tennessee Copper case is equally important in highlighting a feature of the Tribunal’s own approach. The Tribunal both quotes the US Supreme Court in its belief that Georgia is entitled to ‘stand […] upon her extreme rights’ (assumingly a demand that it receives unpolluted air from Tennessee) but also notes, that at a later stage, the actual injunction framed (which set out an annual compensation arrangement) only required emissions to be reduced ‘adequate[ly] to diminish materially the present probability of damage’,65 thus suggesting something more in conformity with an approach to the matter focused on harm minimisation. This focus on US case law isn’t of course to suggest that the Tribunal didn’t consider international law; the Tribunal makes mention of previous precedents—though only the Alabama Claims66 is actually named—as well as Eagleton’s 1928 work on Responsibility of States in International Law, which is cited with approval, where he states ‘A state owes at all times a duty to protect other states against injurious acts by individuals from within its jurisdiction’,67 a principle the Tribunal says both countries, notably Canada, did not question at the hearing. Thus, it is not surprising

ibid, 1964.

60 ibid. 61 ibid. 62

200 US 496, 521. 256 US 296, 309. 64 206 US 230. 65 Reports (n 2) 1965 referencing 237 US 474, 477. 66 Great Britain v United States (1872) 1 Moore’s International Arbitration 45. 67 New York, New York University Press, 1928, 80. 63

174 Duncan French that the Tribunal concluded as it did, namely that both US law and international law imposes an obligation on states not to use or allow the use of its territory ‘in such a manner as to cause injury’. It goes on to say that such injury may not cause harm to another state’s territory or to ‘property or persons therein’ so long as it is of ‘serious consequence’ and evidenced clearly. When set next to the 1938 Decision on quantum awarded (under principles of US tort law), one can perceive how the principle as thus enunciated had already played out in the Tribunal’s own application of legal principles, where not all harm is considered sufficiently evidenced or connected to the original source. Particularly unclear is on what basis a state owes this responsibility—purely because harm occurred (a form of strict liability) or because it has failed to adequately prevent it (the idea of a failure of due diligence upon the state). The Tribunal itself confuses this question by going on to note that ‘Canada is responsible in international law for the conduct of the Trail Smelter’;68 an unfortunate statement that in later decades would similarly cause ambiguity in the work of the International Law Commission on state liability for ‘acts not prohibited by international law’.69 If the reasoning of the Tribunal leading up to the famous dictum reveals a wide array of issues, what is often missed is its disposition of question 2, which raises even broader uncertainty as to what precisely is the scope of the ruling identified, as well as the status (and purpose) of the pronouncement on the existence of a rule of international law. The Tribunal stated the following disposition: So long as the present conditions in the Columbia River Valley prevail, the Trail Smelter shall be required to refrain from causing any damage through fumes in the State of Washington; the damage herein referred to and its extent being such as would be recoverable under the decisions of the courts of the United States in suits between private individuals. The indemnity for such damage should be fixed in such manner as the Governments, acting under Article XI of the Convention, shall agree upon.70

As an answer to question 2—guided, as the Tribunal says, by the objective of achieving a just solution—this might be perfectly satisfactory, though the conflation of a requirement not to cause ‘any damage’ and then stating damage is only ‘recoverable under the decisions’ of the US courts highlights the very conceptual confusion that this chapter has identified. But in response to how this disposition links to the Tribunal’s previous reasoning on international law, it is merely question-begging? Where is the reference to international law? How does Canada’s responsibility interrelate to that of the requirements on the smelter? Does the obligation on the smelter provide a basis for the responsibility of the former, and if so how and of what kind? How indeed can the Tribunal impose a requirement on the smelter directly? Is there an expectation that Canada regulates to ensure this?

68 Reports (n 2) 1965. cf Responsibilities and obligations of states sponsoring persons and entities with respect to activities in the Area ITLOS Reports (2011) 10, 60: ‘Under international law, the acts of private entities are not directly attributable to States except where the entity in question is empowered to act as a State organ … or where its conduct is acknowledged and adopted by a State as its own’. 69 A Boyle, ‘State Responsibility and International Liability for Injurious Consequences of Acts Not Prohibited by International Law: A Necessary Distinction’ (1990) 39 ICLQ 1, 12–14. 70 Reports (n 2) 1966.

Trail Smelter 175 Such uncertainty resurfaces in the Tribunal’s answer to question 4 on future indemnity. The particular issue, from the perspective of the modern law, was whether indemnity was payable on any damage caused (subject to the evidential thresholds already mentioned) or whether it was only payable if the damage was beyond or incapable of being regulated by the established regulatory regime. Again, future commentators have scrutinised too intently the scant language in the Award on this issue. The Tribunal rather cursorily—and without relying on authority—noted that indemnity was payable ‘whether through failure on the part of the Smelter to comply with the regulations … or notwithstanding the maintenance of the regime’.71 This might again be interpreted as justifying a form of strict liability in international law. Alternatively, as the International Law Commission finally decided, this is not principally about the liability of states but rather should centre on the fair allocation of loss between transboundary private actors. Of course, those who search the language of the Award will largely search in vain, though those who continue to read on will discover the real relevance of future indemnity. It will only occur ‘when and if the two governments shall make arrangements for the disposition of the claims’.72 In other words, this is not customary law, but a negotiation process driven by the particular provisions of the 1935 convention. It is thus unsurprising that the Trail Smelter arbitration provides little elucidation on the key principles for which it arguably stands. Arguably it provides little more than guidance on the importance equitable considerations can play in resolving transboundary environmental disputes. Indeed, returning to the disposition of question 2, what does ‘so long as the present conditions in the Columbia River Valley prevail’ mean? It seems hopelessly vague from a legal perspective, as any requirement imposed dependent on conditions outside the governments’ control surely would be. It does, however, make a little more sense if the Tribunal saw its role, as I have argued, as primarily about finding a permanent settlement to the particular ‘difficulties’ between the governments. Certainly, when one considers the regulatory regime established, its complexity is tailored for the sulphur dioxide emissions of those particular climatic conditions. As Read notes, ‘by far the most difficult part of the case consisted of issues of fact, highly technical in character, and dependent for their solution on scientific experiment and testimony’.73 It is arguable that the Tribunal, guided by its scientific experts, took an almost utopian belief in the role of science and technology in the settlement of this dispute. Thus, by relating the resolution of the dispute so closely to the geographical and climatic conditions of the valley, the Tribunal moves not only away from reliance on abstract principle, but reveals that its principal purpose, and achievement, was the establishment of the control regime. Perhaps it is no surprise that the Tribunal found reason to comment on the US Supreme Court judgments, to which it had cause to cite, that they were ‘decisions in equity’.74 At the very least, it affirms this chapter’s

Reports (n 2) 1980.

Read (n 23) 225. Reports (n 2) 1965.

72 ibid. 74

176 Duncan French argument that the recourse to international law in Trail Smelter is ultimately tangential to the bespoke arrangements that the Tribunal put in place as a response to the particular set of circumstances confronting it. III. TRAIL SMELTER: EMERGENCE—AND CRITIQUE—OF THE MYTH

Despite the previous discussion of the richness of the arbitration and Award, the enduring significance of Trail Smelter has undoubtedly been how its decision has subsequently been narrowed so as to represent a singular ‘landmark’, and universalising, rule of customary international environmental law.75 Part of this must rest on the paucity of other case law in this field; a general lack which only recently began to change since the mid-1990s, perhaps even later. Thus, Trail Smelter stands out, not only as an early case, but one with an apparently clear enunciation of a general principle. This perhaps distinguishes the case from other early decisions, such as the Bering Sea Fur Seals Arbitration, where the ruling was—from the standpoint of environmental law at least—more complicated. In that case, the principal ruling was in fact against the environmental argument; namely that the traditional freedom of all states to fish in the high seas (made by the United Kingdom on behalf of Canada) was upheld in the face of unilateral conservation measures (argued by the United States).76 Though, like Trail Smelter, a regulatory regime was instigated as part of the arbitral award (thus again indicating a complexity often lost in subsequent discussion), the case is nevertheless more nuanced and it is significantly less easy to attribute any form of environmentally progressive general obligation. Moreover, whilst the atmosphere is generally (though not wholly) regarded as a common, or shared, resource deserving of protection,77 the balance between exploitation and sustainable use of marine resources remains substantially more contested.78 Thus it is the apparent simplicity—and ubiquity—of the Trail Smelter principle, which has carried its reputation. A. Repetition and Myth-making But what invariably helped to translate Trail Smelter from being a bilateral award to (admittedly in the early period) a putative global norm was its apparent relevance to and, for at least one member of the International Court, persuasive force in helping to decide a broader issue of environmental harm. As is well known, the

75 Stephens, International Courts (n 4) 133: ‘The longevity of the dictum is a consequence of the flexible and negotiable standard articulated by the tribunal’. As regards its impact on non-environmental forms of transboundary harm, see the chapters in Part 3 of Bratspies and Miller (n 1). 76 See V Lowe, International Law (Oxford, Clarendon, 2007) 236. 77 See Report of the International Law Commission (Sixty-seventh session) (4 May–5 June and 6 July–7 August 2015) ILC Report, A/70/10, 2015, ch V (Protection of the Atmosphere) [54]. 78 For recent clarification on the importance of cooperation between coastal and flag states in the matter of fisheries, see Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, [213].

Trail Smelter 177 matter confronting the International Court in the 1974 Nuclear Tests Cases concerned the radioactive fall-out from French atmospheric nuclear tests in the South Pacific. Despite the majority of the Court accepting France’s unilateral declaration as disposing of the case,79 nevertheless the subject matter of the dispute meant it was one of a very few environmentally cognate cases considered by any international tribunal between 1945 and the 1990s. More specifically, the inclusion of a reference to Trail Smelter in this case, noticeably in the dissenting opinion of Judge de Castro,80 is arguably one of a number of key moments that assisted in the juridical development of Trail Smelter’s global reach, as well as revealing the possibility of its scope beyond cross-boundary fume pollution. The erga omnes arguments raised in this case have been well scrutinised,81 but it is perhaps also worth noting the seemingly unproblematic assertion of the Trail Smelter principle to disputes beyond territorial boundaries. Judge de Castro, in an almost exemplary example of my criticism of how the case has been reduced to an atomised form, summarises Trail Smelter with almost no reference to the facts, quotes only part of the pertinent sentence—even capitalises the start of his quote when in fact it is mid-sentence82—and then determines that ‘the consequence must be drawn, by an obvious analogy’ that the general principle enunciated in Trail Smelter can be applied in other situations, to include a general obligation not to cause harm in non-sovereign areas, in this case, radioactive fallout onto the high seas.83 Thus, by 1974, it is apparent that the value of the Award had already begun to morph from a ‘right to demand prohibition of the emission by neighbouring properties of noxious fumes’84 into a wider prohibition on other forms of atmospheric harm. Judge de Castro goes further and notes that ‘This award marks the abandonment of the theory of Harmon (absolute sovereignty of each state in its territory with regard to all others)’.85 There is, of course, a risk of appearing contradictory and retrospectively churlish to criticise the use of Trail Smelter in this way. The reliance by Judge de Castro of an earlier arbitral decision to build up his own reasoning is per se not unusual and indeed if one takes the view that international environmental law cannot operate without a ‘Trail Smelter’ principle, its evolution from the specific to the general is both inevitable and to be viewed positively. Nevertheless, there is room for discussion. Should a principle moulded for the particular circumstances of bilateral, and presumably reciprocal, relations be applied wholly and unquestionably to a very different situation? More specifically, in light of the specific difficulties around enforcement for harm to common areas,86 is the universal application of one generalised rule 79 Nuclear Tests (Australia v France) [1974] ICJ Rep 253, 270; Nuclear Tests (New Zealand v France) [1974] ICJ Rep 457, 475. 80 ibid, 372, 389. 81 M Ragazzi, The Concept of International Obligations Erga Omnes (Oxford, OUP, 1997) 175–81. 82 Judge De Castro does include a footnote which references the earlier part of the sentence, particularly that the principle draws on both international and US law, but it isn’t made clear how the two phrases fit together. 83 See n 80. 84 ibid. 85 ibid, fn 2. 86 cf Responsibilities and Obligations of States (n 68) 59.

178 Duncan French necessarily to be encouraged? Judge de Castro in his approach, of course, is merely mirroring what has happened to the principle in diplomatic fora, but nevertheless as revealed in the later work of the International Law Commission, which limited its investigations in this area to the prevention of, and liability for, the occurrence of transboundary harm, there is—whether one likes it or not—significant divergence in approach and efficacy of rule enforcement when harm happens to sovereign, in contrast to non-sovereign, areas.87 What is also particularly noticeable is how de Castro, followed invariably by academic treatises, makes a link between Trail Smelter and the International Court’s first case, Corfu Channel, and its general dicta that ‘every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states.88 The intention of making this connection is premised upon linking Trail Smelter to general international law and thus its relevance, I’d suggest, is two-fold. First, Trail Smelter as an emerging rule of international law can be seen as reflective of—and supportive of the formation of—a much more foundational principle in international law. Secondly, by making a connection between Trail Smelter and Corfu Channel, it has the undisputed effect of normalising and mainstreaming international environmental law.89 The prohibition of transboundary harm thus becomes less an esoteric and ‘green’ (invariably viewed as a soft) commitment, and more of a legally binding rule, which is merely one manifestation of the wider obligation espoused by the Court in Corfu Channel. Retrospectively, it might now be wondered why Corfu Channel is so readily mentioned in early textbooks on international environmental law, but as a link to both a general principle of international law and, more specifically, as a precise dictum of the International Court, Trail Smelter is thus associated very closely within the accepted body of international law. Thus, even where the majority of Court refused to engage in environmental considerations—in Nuclear Tests Cases— nevertheless, academic treatises on environmental law can make a chronological narrative from bilateralism towards global acceptance, with implicit endorsement by the International Court. Within this process, two diplomatic events are especially important; the adoption, already by 1972, of the UN Declaration on the Human Environment and the conclusion of the negotiations of the 1982 UN Convention on the Law of the Sea (UNCLOS). Through these two seminal texts, the Trail Smelter rule is thus codified

87 D French, ‘Common Concern, Common Heritage and other Global(-ising) Concepts: Rhetorical Devices, Legal Principles or a Fundamental Challenge?’ in M Bowman, P Davies and E Goodwin (eds), Research Handbook on Biodiversity and Law (Cheltenham, Edward Elgar, 2016) 336–37: ‘no distinction is made between the responsibility for transboundary impact and the negative effects of harm caused in areas beyond national jurisdiction. It has thus justified the evolution of a single meta-norm (the singularly inappropriately-named ‘no harm’ principle) to come into existence, notwithstanding the very significant legal and practical differences that exist between these two scenarios’. 88 Corfu Channel (United Kingdom v Albania) Merits, [1949] ICJ Rep 4, 22. 89 J Viñuales, ‘The Contribution of the International Court of Justice to the Development of International Environmental Law: A Contemporary Assessment’ (2008) 32 Fordham Journal of International Law 232, 238: ‘Corfu Channel … came as a confirmation of this narrow view … confirmed and linked to general international law’. cf J Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford, OUP, 2012) 353.

Trail Smelter 179 into something more precise and, in the latter case, conventional. It is useful to place excerpts from each, side by side: Principle 21 of the 1972 UN Stockholm Declaration90 States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Articles 192–194(2) UNCLOS91 Article 192: States have the obligation to protect and preserve the marine environment. Article 193: States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment. Article 194(1) … Article 194(2): States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

This is Trail Smelter writ large, stripped of context and applied as a general principle, or rule, of international law—to the extent that it becomes known, more than a little erroneously, as the ‘no harm’ principle.92 Indeed, no longer is it limited to atmospheric harm. Several points are worthy of note. Principle 21 is remarkable both for its brevity and its ambition. Unlike almost all of the rest of the Declaration, this is placed not in aspirational terms but drafted in the language of international law. Unsurprisingly, following 1972, a flurry of legal agreements sought to give effect to Principle 21 on a broad array of environmental matters; including marine pollution,93 atmospheric pollution,94 and ozone pollution.95 Even the later 1992 (so-called ‘Rio’) treaties on climate change and biodiversity reference the principle,96 as do many others almost as a matter of ritual.97 It is for that reason—above almost all others—that 1972 is often said to be the ‘birth’ of international environmental law.

UN Doc A/CONF.48/14/Rev.1. 21 ILM (1982) 1261. P Birnie, A Boyle and C Redgwell, International Law and the Environment, 3rd edn (Oxford, OUP, 2009) 137. 93 1972 Convention for the Prevention of Marine Pollution by Dumping of Wastes and other Matter (11 ILM (1972) 1294), preamble. 94 1979 Convention on Long-Range Transboundary Air Pollution (18 ILM (1979) 1442), preamble. 95 1985 Vienna Convention for the Protection of the Ozone Layer (26 ILM (1987) 1529), preamble. 96 1992 UN Framework Convention on Climate Change (31 ILM (1992) 851), preamble and 1992 Convention on Biological Diversity (31 ILM (1992) 818) Art 3. 97 D French, ‘A Reappraisal of Sovereignty in the light of Global Environmental Concerns’ (2001) 21 Legal Studies 376, 383. 91 92

180 Duncan French Principle 21 of course encapsulates two rather separate principles; permanent sovereignty over natural resources (itself still very much controversial at the time) and secondly, the essence of the rule—if not quite the language—of Trail Smelter. The extent to which these are discrete rules, operationally independent, or the extent to which the one might constrain the application of the other, are fundamental questions with which the international community continues to grapple.98 Diplomatically, of course, the combination of the two principles was to elicit consensus amongst the states present in Stockholm, representing the developed and developing perspectives. Nevertheless, notwithstanding the politics inherent within the principle, there is also a legal tension at play. It is therefore unsurprisingly that states elected to develop specific conventional regimes as the most effective way of applying it to particular environmental problems. As well as prompting regulatory action, the 1972 Declaration sets out the beginnings of a framework for state responsibility for environmental harm, though without the answers to several key questions. Much of the subsequent discussion since then has therefore been on the precise scope of such responsibility. In particular, queries as to the nature of the obligation of the state (as one of conduct or of result?), the necessity of loss before action (which now raises the related matter of the relevance and status of the precautionary principle)99 and the accepted compensable heads of damage have, inter alia, come to dominate both academic and juridical debate. Though states were willing to establish primary rules of conduct through the adoption of regulatory conventions, they rarely specified, in clear terms, express rules of liability. As will be noted, the ILC’s work was especially problematic in this regard. And as Principle 13 of the 1992 Rio Declaration on Environment and Development indicates, 20 years after the Stockholm Declaration, little progress had been, or seemingly could be, made on liability.100 The lack of case law also ensured courts and tribunals had relatively few cases to develop general rules of international law on liability in this area. Moreover, as rather subtle differences in the wording of the Stockholm Declaration and the cited provisions on UNCLOS reveal, there was a broader jurisprudential debate as to whether the ‘no harm’ principle was a negative obligation on states not to cause (or allow the causation of) harm, or whether it was a positive, more extensive, obligation to protect the environment. The Stockholm Declaration was notably muted in this respect; UNCLOS on the other hand seemed more progressive (at Article 192), though its subsequent obligation to ‘prevent, reduce and control pollution’ itself raised questions as to the actual commitment required of states.

98 See generally N Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge, CUP, 1997). 99 Principle 15 of 1992 Rio Declaration on Environment and Development (UN Doc A/CONF.151/26/ Rev.1): ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’. 100 ‘States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction’.

Trail Smelter 181 Thus, even at the early stages in the global acceptance of ‘no harm’ principle, there lacked precision and specificity at the heart of the fundamental rule. Moreover, as the principle had now become detached from the very case from which it had closest resonance, namely Trail Smelter, reference to that particular arbitral decision was to provide little in the way of clarity. Commentators would search in vain for answers as to the relevant standard of care (often converted into a simple binary division between strict liability and due diligence), and the severity of the harm required. Nevertheless, the progressive advance of the principle into an accepted rule of custom was inevitable. As Judge Weeramantry noted in his dissent against the Order of 22 September 1995 in 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, the principle ‘is well entrenched in international law and goes as far back as the Trail Smelter case … and perhaps beyond’.101 A year later, the International Court finally accepted the principle as part of the canon of customary law in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons. Stylistically, if less so in terms of substance, there is significant impact in the wording of the Court, when it notes (without reference to its sister clause of sovereignty over resources) that ‘the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment’.102 From an environmental perspective, there is significant advantage in transforming an essentially negatively framed obligation into a more positively worded commitment. But, as an aside, one might wonder about the reasoning here. Certainly, it seems to fit aptly into Talmon’s discussion of the methodology of the International Court in determining customary international law, where inductive and deductive reasoning models both fail to capture adequately the judicial process of the Court, but rather ‘In the large majority of cases, the Court does not offer any … reasoning but simply asserts the law as it sees fit’.103 B. Limitations and Deconstruction There is, however, a paradox. Notwithstanding this move towards being accepted as a general norm of international law, it has remained elusive in terms of its scope and obligation. This is perhaps no more evident that in the work of the ILC. The ILC has struggled to conceptualise, and to balance, a rule-based approach to transboundary responsibility with a more permissive approach to regulating lawful activity on state territory, encapsulated in what it now terms an equitable balancing of interests.104

101

[1995] ICJ Rep 317, 346. [1996] ICJ Rep 226, 242. 103 S Talmon, ‘Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion’ (2015) 26 EJIL 417, 434. 104 See, for instance, Art 10 of the 2001 draft Articles on Prevention of Transboundary Harm from Hazardous Activities: ‘factors involved in an equitable balance of interests’ (for details, see n 108 below). 102

182 Duncan French This attempt to reconcile respecting sovereign rights, on the one hand, with responsibility for harm, on the other has been at the heart of the ILC’s work programme— some would suggest has been its perennial woe—in this area since it started its work on this topic in the late 1970s. In attempting to address the issue of liability, the very title of the ILC’s original project—‘international liability for injurious consequences arising out of acts not prohibited by international law’—highlighted the complexity that the ILC was to soon find itself in on whether a state could be liable for transboundary harm caused by lawful acts without a consequential violation of international law by the state itself. Doctrinal confusion within the ILC on this matter provoked significant criticism.105 The decision in 1997 to divide the ILC’s work into the identification of rules of international law on the prevention on transboundary harm, on the one hand, and international liability in case of loss arising therefrom, on the other, was to prove the turning point.106 On the first part, the ILC focused on the due diligence obligations on states to seek to minimise transboundary harm, focusing primarily on domestic regulatory and enforcement measures and international obligations of notification and consultation.107 On the second part, the ILC more adventurously looked at the prospects for access to justice at the cross-jurisdictional level,108 recognising the limitations—to private victims—of the first approach of an international obligation premised on due diligence. This divide, whilst not wholly satisfactory, nonetheless allowed the ILC to bring its work in this area to a close. In the ILC’s commentaries to both final products, namely the 2001 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities109 and the 2006 Draft Principles on Allocation of Loss in the Case of Transboundary Harm arising out of Hazardous Activities,110 there are numerous references to Trail Smelter, though these are invariably limited— in the usual way—to a reductionist form. In some instances, where there are references to the case, there is often some difficulty in making the necessary conceptual link. For instance, in finding support in Trail Smelter for the 2001 draft Article 7 (assessment of risk), the ILC is nevertheless forced to admit that ‘Although the assessment of risk in the Trail Smelter case may not directly relate to liability for risk, it nevertheless emphasized the importance of an assessment of the consequences of an activity causing significant risk’.111 The ILC goes on to note, quoting the Tribunal: ‘The tribunal in that case indicated that the study undertaken by well-established and known scientists was ‘probably the most thorough [one] ever made of any area subject to atmospheric pollution by industrial smoke’.112 Though it does not try to conceal it, the ILC nevertheless conflates post

105

See generally Boyle ‘State Responsibility’ (n 69). discussion of the ILC Working Group on this matter, see Document A/CN.4/L.536 as mentioned in ILC Ybk 1997, vol II (Part Two), [165]–[167]. 107 For further discussion, see Birnie, Boyle and Redgwell, International Law (n 92) 137–88, passim. 108 See A Boyle, ‘Globalising Environmental Liability: The Interplay of National and International Law’ (2005) 17 Journal of Environmental Law 3. 109 To be found in ILC Ybk 2001, vol II, Part Two, 148–70. 110 To be found in ILC Ybk 2006, vol II, Part Two, 110–82. 111 ILC Ybk 2001 (n 109) 158. 112 ibid. 106 For

Trail Smelter 183 hoc scientific assessment for the purposes of devising a regulatory regime (on which the Tribunal was commenting) with ante hoc assessment for the purposes of assessing risk as part of the due diligence obligation (on which the Tribunal had little to say). Needless to say, this is an attribution by the ILC seemingly out of necessity, which is actually deeply problematic from a conceptual perspective. What is also noticeable—certainly not in every reference but at various points throughout the two commentaries—is a conflation between the Trail Smelter arbitration and the development of subsequent principles, where the former is viewed both as the antecedent of, as well as justification, for the latter, but usually without reference to its particularities and nuanced factual circumstances. Thus, for instance, in the commentaries on the 2006 Draft Principles, the ILC notes that: the notion of prompt and adequate compensation … reflects the understanding and the desire that victims of transboundary damage should not have to wait long in order to be compensated. The importance of ensuring prompt and adequate compensation to victims of transboundary damage has its underlying premise in the Trail Smelter arbitration and the Corfu Channel case, as further elaborated and encapsulated in Principle 21 of the Stockholm Declaration.113

This is a particularly unsatisfactory statement; not only does it grossly oversimplify each of these key precedents, but it blatantly ignores that neither specifically prioritises the adoption of domestic rules for the administration of justice in respect of transboundary harm based on a system of strict liability (as envisaged by the 2006 Draft Principles) in contrast to international responsibility for harm caused (accepted in the 2001 Draft Articles as an obligation of due diligence). As the ILC’s commentaries reveal, it is noticeable how little is gleaned by the ILC for either project from an in-depth reading of Trail Smelter on either the issue of due diligence or strict liability. For those that have held Trail Smelter in such high regard as an enduring principle on environmental law, this must be of concern. But in light of the limited role international law played in the arbitration, this must be considered far from surprising. Despite a general lack of case law on transboundary pollution, it would be remiss to suggest that there has been no discussion of Trail Smelter at various points, though the history here is one of selectivity. For instance, in the Pulp Mills on the River Uruguay (Argentina v Uruguay) (2010), concerning pollution of a shared watercourse, despite referencing the ‘no harm’ principle (seen by the Court as ‘the principle of prevention, as a customary rule [which] has its origins in the due diligence that is required of a State in its territory’)114 there was no mention of Trail Smelter but relying instead on its own case of Corfu Channel, an internal stylistic technique often used by the Court.115 Recent cases are also noticeable for their elaboration of

113

ILC Ybk 2006 (n 110) 141. [2010] ICJ Rep 14, 55. 115 See also Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) / Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) [2015] ICJ Rep 665, [104]. 114

184 Duncan French a customary obligation to undertake transboundary environmental impact assessment where there is risk of harm, thus advancing the procedural aspects of the obligation.116 Perhaps most interesting in terms of the usage of Trail Smelter is to be found in the pleadings of Aerial Herbicide (Ecuador v Colombia), which also related to atmospheric pollution. In its written memorial, Ecuador gives credence to the historical relevance of the arbitration,117 though it also seeks to engage with the detail of the Award to support its own position, where relevant, but also to identify what it considers is its limitations.118 This seems to be a more analytical, and justifiable, approach to the decision than has often previously been the case. Colombia in its own way also relies on Trail Smelter—perhaps in less detail—but no less relevantly for that, when it seeks to defend itself against what it perceives as a tendency in international adjudication for aspirational argumentation: ‘New and aspirational instruments … are combined, higgledy-piggledy, with established propositions such as that of the Trail Smelter arbitration’.119 As previously noted, the dispute was settled, and the International Court was not afforded the opportunity to consider such arguments.120 However, the reliance by the parties in their written memorials on the Award is not insignificant. It highlights once again the underlying paradox that the arbitral Award is both universally endorsed, and yet equally enigmatic in its application. As Ellis had cause to note, ‘it is an awkward fit with other rules of international environmental law, and … it is at the same time a cornerstone of that law’.121 Thus, in turning to some of the criticism of Trail Smelter, it is useful to demarcate between critique of the over-use and subsequent reliance on the case, and critique of the case itself. Mickelson, for example, in her article entitled Rereading Trail Smelter, highlights a range of scholars who have over the years criticised the overuse and misrepresentation of the importance of Trail Smelter. She quotes Handl, for instance, who remarked that the case as being a ‘much cited, and with regard to its international legal relevance also often over-estimated, decision’.122 Similarly, 116

Sands and Peel (n 3) 620–21. Memorial of Ecuador (n 41) [8.4]: ‘The law on this subject is rooted in the well-known decision in the Trail Smelter Arbitration which, like the present case, was concerned with air pollution’. 118 ibid, [10.17]: ‘The case is largely of historical interest, applying the approach to compensation that pertained in the early part of the twentieth century, which approach has been significantly developed in recent years’. 119 Aerial Herbicide Spraying (Ecuador v. Colombia): Written Counter-Memorial of Colombia, Vol I (29 March 2010) [8.1]. 120 Nevertheless, the recital in the Order of 13 September 2013 (Removal from List) referencing the agreement between the Parties is of substantial interest concerning how the dispute was settled in practice, reflecting some of the key procedural techniques utilised in international environmental law: ‘the Agreement of 9 September 2013 establishes, inter alia, an exclusion zone, in which Colombia will not conduct aerial spraying operations, creates a Joint Commission to ensure that spraying operations outside that zone have not caused herbicides to drift into Ecuador and, so long as they have not, provides a mechanism for the gradual reduction in the width of the said zone; and whereas, according to the letters, the Agreement sets out operational parameters for Colombia’s spraying programme, records the agreement of the two Governments to ongoing exchanges of information in that regard, and establishes a dispute settlement mechanism’. 121 Ellis, ‘Has International Law Outgrown Trail Smelter?’ (n 1). 122 G Handl, ‘Balancing of Interests and International Liability for the Pollution of International Watercourses: Customary Principles of Law Revisited’ (1975) 13 Canadian Yearbook of International Law 156, 167–68 in Mickelson (n 9) 230, fn 31. 117 Written

Trail Smelter 185 Munton is noted as saying that the award ‘has become accepted—and, to a c ertain extent, mythologised—as a landmark case in international law’.123 Reflecting the themes of this chapter, such scholars are pointing to the temptation of over- simplification and the invariable error that will result therefrom. As Rubin notes— referring specifically to Trail Smelter—‘heavy reliance on a single precedent breeds overstatement … the precedent can be applied only by raising it to a level of abstraction far beyond the range of its logic’.124 For Mickelson, such criticism focuses invariably on how Trail Smelter has been put to use since its Award in the 1940s, rather than criticism of the case itself. As she notes, ‘it is more an object of reverence than a subject of analysis’.125 On the other hand, for Ellis, it is not only the legacy of the dispute that is problematic but the legal reasoning of the Award; its long-term ‘persuasiveness is compromised by a lack of clarity in the Tribunal’s reasoning’.126 Thus, such criticism is not purely retrospective—premised on misunderstanding and misapplication in later cases—but also on the coherence of the Award itself. Ellis, in particular, points out that the Tribunal’s own understanding on state responsibility is ultimately flawed; for though it relied on the work of Eagleton to justify the maxim of responsibility to which it refers, ‘His reasoning is not adopted by the Tribunal’.127 Nowhere does the Tribunal conclude on what precise grounds Canada is responsible for the transboundary pollution, but merely asserts it as such. As Ellis notes, ‘the Tribunal did not identify the nature of the international legal obligation that Canada breached in this case’.128 Thus, not only does Trail Smelter not have the precedential value that many believe it to have, but it perhaps fails to convince on its own merit as regards its own reasoning as the law stood in 1941. A third criticism is to suggest increasing irrelevance for Trail Smelter; that the focus of international law in the area of environmental harm has changed. Drumbl, for instance, notes that if the primary obligation of Trail Smelter is—as has been explained, an ‘obligation not to cause serious environmental harm’—there was also always a secondary obligation in operation, namely the provision of reparation and compensation. As he notes, ‘I see an important distinction in terms of the currency of Trail Smelter’s primary rule … and the currency of Trail Smelter’s secondary obligation’.129 Relying in part on the work of Dinah Shelton, he argues that despite the ILC’s clarification of the rules regarding state responsibility, Trail Smelter may continue to lead a somewhat lonely existence. Shelton observes that ‘the Trail Smelter arbitration is almost alone today in being cited for state responsibility and reparations in the

123 D Munton, ‘Dependence and Interdepedence in Transboundary Environmental Relations’ (1980–81) 36 International Journal 139, 140 in Mickelson (n 9) 223, fn 13. 124 A Rubin, ‘Pollution by Analogy: The Trail Smelter Arbitration’ (1971) 50 Oregon Law Review 259. 125 Mickelson (n 9) 220. 126 Ellis (n 1) 59. 127 ibid. 128 ibid, 60. 129 M Drumbl, ‘Trail Smelter and the International Law Commission’s work on State Responsibility for Internationally Wrongful Acts’ in Bratspies and Miller (n 1) 93.

186 Duncan French field of environmental protection, because virtually no interstate cases have been brought in the decades since it was decided’130

On the other hand, of course, it is not all about formal dispute settlement. The work of the ILC—and international law more generally—is to structure the peaceful settlement of disputes, not to govern legal procedures alone. There is scope for recognising the importance of inter-state negotiation, inter alia, as a key means to reconcile the competing interests of States. As the Tribunal recognised, equity invariably plays a central part in such a settlement. The 2001 Draft Articles on Prevention of Transboundary Harm themselves list a range of factors that contribute to an equitable balancing of interests. Though this might undermine the certainty of law, in matters such as these where harm is pervasive, ongoing and to be controlled rather than to be strictly prohibited (as with a one-off disaster, say), finding appropriate solutions must be part-legal/part-policy. To the extent that Trail Smelter is viewed as providing for a general principle—in contrast to a framework for inter-State resolution—then it may rightly be perceived as unhelpful. Thus, criticism of Trail Smelter has ranged from the intrinsic to the consequential. As this chapter has identified throughout, there is a paradox to the Award. It would seem to be both relevant and irrelevant to the structure and operation of modernday international environmental law. As time has passed, its stature has waned as other disputes have been decided, conventions have been adopted and processes of codification and progressive development have reviewed which rules and principles of international environmental law are necessary and required. Nevertheless, Trail Smelter retains an almost mystical presence that won’t be ignored. Referring generally, though there is a pertinence to the issue under discussion, D’Aspremont frames it thus: the practice of taking refuge in judicial validation and the judicialization of international legal thought that comes with it … is not to repudiate international lawyers’ practice of taking refuge in judicial validation of argumentative structures. It may be that such shortcuts are necessary to preserve the possibility of legal argumentation … Yet, accepting the inevitability of the phenomenon does not mean that one should not take a hard look at the practice.131

IV. TRAIL SMELTER IN CONCLUSION: RE-EVALUATION AS A LANDMARK DISPUTE SETTLEMENT?

There is a significant risk when discussing a dispute such as Trail Smelter—viewed latterly as a ‘landmark’ judgment—that one can generalise to an unreasonable extent. Usually, and undoubtedly at the initial stages, this over-generalisation is often an uncritical, and uncriticised, process to elaborate on its importance. This may be

130 ibid, 94 referencing D Shelton, ‘Righting Wrongs: Reparations in the Articles on State Responsibility’ (2002) 96 AJIL 833, 854–55. 131 J D’Aspremont, ‘If International Judges Say So, It Must Be True: Empiricism or Fetishism?’ (2015) 4 ESIL Reflections 9, 5.

Trail Smelter 187 a necessary part of its development, but it is during this stage that the case and the general rule/principle, which it is said to stand for begin to converge. As noted in the introduction, very often this is most clearly reflected by a metonymic synthesis between the name of the case and the said rule/principle. When we discuss such well-known cases as Wimbledon, Lotus and Chorzów Factory, what are we actually referring to? Almost invariably, the dominant rule/principle arising from the case and very little else. And as such cases become generalised both in terms of their acceptance and their application, they broaden in scope, harden in normativity and yet, paradoxically, narrow into a singular rule capable of easy citation and repetition. What is perhaps more novel about Trail Smelter is that its evolution into a general principle has relied as much—if not more so—on diplomatic initiatives and soft law than it has on judicial endorsement. And though the mechanisms are far from identical, they are not wholly separate. As Talmon noted in a paper on the methodology of judicial determination of customary international law, ‘judicial deduction is not the same as logical deduction … logical reasoning is replaced by legal reasoning, which has its basis in the traditions of the legal system’.132 Nevertheless, though each has its own internal structure and values, they are sufficiently linked to be supplementary and mutually supportive in the development of international law. Trail Smelter has come to represent something very different from that which it actually concerned. At this juncture, it is perhaps worth restating an obvious; there is nothing wrong per se with the principle attributed to the case—there is arguably even good reason for the Tribunal to have relied on an early iteration of it in this particular dispute. What however, has happened, and which is problematic, is that the principle has absorbed all else about the dispute. Consequently when one looks at the case through the prism of the general principle (still most easily referenced as) ‘no harm’, one loses the importance and the rigour of context. Moreover, as the principle was relevant, yet tangential, to the determination of the case, the case itself does not answer key questions on the general application of the principle; causation, level of harm, nature of liability, compensable heads of damage, etc. It is thus not surprising that many have queried the case and contested its longterm significance. This rush to re-read the case is, of course, not without merit, and the insights brought by such critiques are invaluable and long overdue. It has allowed a less reverential, and more analytical, approach to be brought to a ‘landmark-ed’ case. What has emerged is a case stripped of much of the rhetoric that surrounded it. More generally, it has highlighted the importance of referring back to the original text. Nevertheless, in moving towards a fourth epoch of re-evaluation, perhaps we need not go so far. Notwithstanding the veracity of the criticism, it cannot be denied that the case was instrumental in the development of international environmental law. As McCaffrey concludes, ‘Whether praised as bold and visionary or dismissed as narrow and compromising … This was a remarkable decision’.133 It would be as ahistorical to deny this as it would be to give it a substance and meaning that it

132

Talmon, ‘Determining Customary International Law (n 103) 420. S McCaffrey, ‘Of Paradoxes, Precedents and Progeny: The Trail Smelter Arbitration 65 Years Later’ in Bratspies and Miller (n 1) 45. 133

188 Duncan French does not deserve. The Tribunal, by positioning its answer within the rubric of international law, did so intentionally; as did Judge de Castro and others who relied on it subsequently. It is not that the abstract principle was given undue prominence in later developments, but that the case in its totality—the principle, innovative procedural aspects (use of scientific experts), the Tribunal’s reasoning at other points (eg. res judicata and the revision of awards), as well as the establishment of the regulatory regime (both in the first and the final decisions)—has not been considered worthy of further, and deeper, exploration and endorsement. As Mickelson notes, ‘Trail Smelter would remain a landmark, although its usefulness is not so much as a “case”, but as a “case study”’.134 If indeed that had occurred, rather than undermining its status, such analysis would have revealed much earlier the importance of dispute settlement in international environmental law. It also provides a salutary lesson against rushing to reduce any case to a singular, abstract, principle.

134

Mickelson (n 9) 232.

9 Trial Before the International Military Tribunal at Nuremberg (1945–46) KATHERINE O’BYRNE AND PHILIPPE SANDS1

I. INTRODUCTION

VER SEVEN DECADES ago, on 21 November 1945, US Chief Prosecutor Robert H Jackson gave his opening address2 at the trial of major Nazi war criminals before the International Military Tribunal (‘IMT’ or ‘the Tribunal’) at Nuremberg.3 Jackson told the eight judges: The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to reason.4

On 30 September and 1 October 1946, for the first time in history, an international tribunal convicted individuals of international crimes, including crimes against peace (waging aggressive war), war crimes and crimes against humanity. The principles of international law recognised in the Charter5 and Judgment6 of the N uremberg Tribunal were later affirmed by the UN General Assembly,7 and the 1 Thanks to Megan Hirst and Ailsa McKeon for their editorial assistance on previous drafts of this chapter. 2 Given on Day 2, 21 November 1945, the Indictment having been read on Day 1. 3 This chapter deals only with the trial of major war criminals before the IMT, and not the subsequent trials of lower-level functionaries and private citizens before the Nuremberg Military Tribunals 1946–49. As to the subsequent trials, see the comprehensive analysis in KJ Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford, OUP, 2012). 4 Nuremberg Trial Proceedings, Volume 2, Day 2, Wednesday 21 November 1945, Transcript 97–98. The Proceedings Volumes, including full transcripts, are available online via Yale Law School at the Avalon Project: . 5 United Kingdom of Great Britain and Northern Ireland, United States of America, France and Union of Soviet Socialist Republics, Agreement for the Prosecution and Punishment of the Major War C riminals of the European Axis (‘London Agreement’), and Charter of the International Military Tribunal (‘Nuremberg Charter’), 82 UNTS 280 (entered into force 8 August 1945). 6 France v Göring, Judgment and Sentence [1946] 22 IMT 203, (1946) 41 AJIL 172, (1946) 13 ILR 203, ICL 243 (IMTN 1946) (1 October 1946) (‘Nuremberg Judgment’). 7 UNGA Res 95(I), ‘Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal’, adopted on 11 December 1946.

190 Katherine O’Byrne and Philippe Sands seven key principles established at Nuremberg were codified by the International Law Commission.8 At the time of the trial itself, many individuals closely involved recognised it to be a landmark. In his closing address before the Tribunal, Sir Hartley Shawcross, the chief British prosecutor, stated: This Trial must form a milestone in the history of civilization, not only bringing retribution to these guilty men, not only marking that right shall in the end triumph over evil, but also that the ordinary people of the world—and I make no distinction now between friend or foe—are now determined that the individual must transcend the state.9

The judges presiding over the trial were no less convinced of the trial’s significance. Norman Birkett (later Lord Birkett), the associate British judge, called it ‘the greatest trial in history’.10 US prosecutor Telford Taylor, even more involved in later cases, wrote that Nuremberg was conceived as ‘an episode that would leave an enduring judicial monument, to mark as a giant step in the growth of international law’.11 US Secretary of War Henry Stimson, one of the architects of the Tribunal, concluded: ‘The surviving leaders of the Nazi conspiracy against mankind have been indicted, tried, and judged in a proceeding whose magnitude and quality make it a landmark in the history of international law’.12 Even Nuremberg’s defence lawyers, while criticising aspects of the trial’s legitimacy, admitted to its landmark qualities. Otto Kranzbühler, representing Hitler’s successor Admiral Karl Dönitz, wrote: ‘Nuremberg was conceived, and can only be understood, as a revolutionary event in the development of international law … One was fully aware that a step forward was being ventured’.13 As significant as that step was, for a time it seemed as though it might be the only footfall along the path to realising international criminal justice. Certainly, the answer to the question whether Nuremberg is a landmark may have been different prior to the establishment of the ad hoc international criminal tribunals for Rwanda and Yugoslavia in 1993. Then, it may have been seen as a point of interest in the landscape, a postscript to a war that devastated the world, but otherwise as a failed or infertile model. During the second half of the twentieth century, crimes against humanity and mass killings abounded: not only in Yugoslavia and Rwanda, but in Cambodia, Bangladesh, Kenya, Zimbabwe, South Africa, Sudan, Indonesia, Iran, Iraq, East Timor, China, Chile and Argentina; revolutions, conflicts and repressions 8 Pursuant to General Assembly Resolution 177 (II), paragraph (a); see International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal (1950), adopted by the International Law Commission at its second session in 1950 and submitted to the General Assembly as a part of the Commission’s report covering the work of that session, including the commentaries of the Commission on the Principles, (1950) 2 ILC Ybk 374. The seven principles are: individual criminal responsibility for international crimes; internal law cannot relieve responsibility under international law; official position does not relieve responsibility; superior orders are not a defence; the right to a fair trial; crimes against peace, war crimes and crimes against humanity are punishable; and complicity is a crime. 9 Nuremberg Trial Proceedings, Volume 19, Day 188, Saturday, 27 July 1946, Transcript 527–28. 10 MR Marrus, ‘The Nuremberg Trial: Fifty Years After’ (1997) 66 The American Scholar 563, 563. 11 T Taylor, Nuremberg and Vietnam: An American Tragedy (New York, New York Times Books, 1970) 80. 12 HL Stimson, ‘The Nuremberg Trial: Landmark in Law’ (1947) 25 Foreign Affairs 179, 179. 13 O Kranzbühler, ‘Nuremberg Eighteen Years Afterwards’ (1965) 14 DePaul Law Review 333, 335.

The International Military Tribunal at Nuremberg 191 rising from the disintegration of pre-war colonisation, opportunistic power grabs and age-old enmities. Most went unattended by judicial responses. Only after the end of the Cold War did international criminal law begin to flourish, with the establishment of the ad hoc tribunals, various hybrid mechanisms, and the International Criminal Court (ICC). Through the work of these institutions, the indictment and prosecution of warlords, military commanders, and former and serving heads of state gave new life to the principles established at Nuremberg. But for Nuremberg (and the proceedings in Tokyo,14 themselves catalysed by Nuremberg), it is unlikely that these subsequent developments would have occurred at all, or in the form they did. Today, Nuremberg’s status and reputation as a landmark in the topography of international law, particularly international criminal law, is not in doubt. All roads lead to Nuremberg, it may be said. But despite this legacy, the grand aspirations expressed during the Nuremberg trial have been fulfilled only to a limited extent, and serious questions remain as to the commitment of the international community to the role of international criminal courts. Seventy years after the trial, a vicious civil war rages in Syria, which international courts have so far failed to reach. Longstanding conflicts and repressive regimes continue to provide fertile ground for international crimes and impunity in the Middle East, Africa, Central Asia, and elsewhere. Meanwhile, in Libya, Sudan, the Democratic Republic of the Congo, the Central African Republic, Rwanda, Cambodia, and other states touched by the work of international criminal mechanisms, accountability continues to be the exception and the power of deterrence remains highly questionable. Western powers—including the United Kingdom and United States—appear to remain beyond the reach of international criminal courts, even where jurisdictional grounds are clear (as in the case of Afghanistan) or plausible (as in the case of allegations of involvement in ‘extraordinary rendition’). Thinking about Nuremberg at this juncture raises fundamental questions. If Nuremberg is a landmark, what makes it so? What did it signify at the time, how have its principles been deployed and developed, and what does it mean for us today? Nuremberg is a landmark for multiple legal, political, historical, and social reasons, all of which form the basis of extensive analysis elsewhere, and not all of which can be explored here. Much writing and discussion has been dedicated to analysing the context, precursors, progress, outcomes, and legacies of the trial. As well as creating a record of Nazi crimes, Nuremberg provided a model for new institutions of international law and an approximation of due process to the captured leaders of a totalitarian regime. Of course, the concept of a landmark does not necessarily carry normative content. The trial continues to be controversial,15 which is not surprising given that it was born of a compromised, experimental, and highly political process.

14 See International Military Tribunal for the Far East, Judgment of 12 November 1948, in J Pritchard and SM Zaide (eds), The Tokyo War Crimes Trial (New York, Garland, 1981), vol 22. 15 See, eg, Georg Schwarzenberger, ‘The Judgment of Nuremberg’, in G Mettraux, Perspectives on the Nuremberg Trial (Oxford, OUP, 2008) 167; E Borchard, ‘The Impracticality of ‘Enforcing’ Peace’ (1946) 55 Yale LJ 966; G Finch, ‘The Nuremberg Trial and International Law’ (1947) 41 AJIL 20; F Schick, ‘The Nuremberg Trial and the International Law of the Future’ (1947) 41 AJIL 770; D Luban, ‘The Legacies of Nuremberg’, in Mettraux, 638; K Sellars, ‘Imperfect Justice at Nuremberg and Tokyo’ (2010) 21 EJIL 1085.

192 Katherine O’Byrne and Philippe Sands The focus of this chapter is on three major themes which can be said to have established Nuremberg as a legal landmark. The first of these is the foundation of the Tribunal itself to create a new institution of international law. While not entirely without precedent, Nuremberg was for its time the most successful example of an international war crimes tribunal, which created a model for further international tribunals and trials. The second major theme is the creation and development of new and distinct categories of international criminal liability in the Nuremberg Charter, Indictment and Judgment. The lawyers and judges involved in the Nuremberg trial formed the foundation for our modern conceptions of aggression (crimes against peace), crimes against humanity and genocide.16 Crimes against peace, made for the first time the subject of formal criminal sanctions in the Nuremberg Charter, were the predecessors of the crime of aggression in the Statute of the International Criminal Court, finally defined at Kampala in June 2010. The concept of crimes against humanity, first articulated in the Nuremberg Charter, has since developed to provide more concrete protection to individuals in civilian populations in times of war or peace. It is also necessary to say something of the role of Nuremberg as a platform for the development of Raphael Lemkin’s concept of ‘genocide’, despite the fact that g enocide was not mentioned in the Charter or Judgment of the Tribunal. The third major theme, that of the individual in international law, runs as an undercurrent through the institutional and substantive legal aspects of the trial. Nuremberg, for the first time in history, gave effect to international accountability for individual leaders and contributed to the provision of international protection to individual civilians. Nuremberg and its principles, alongside the advent of international human rights law, played a part in effecting a shift in the focus of international law on state-to-state relations towards a complex and ever-evolving exchange between individuals, groups, and states.17 Part II of this chapter briefly traverses the well-known history leading up to the establishment in 1945 of the IMT as a new international legal institution, the genesis of the trial, models and precedents, and its basic factual parameters. Part III examines the three key developments in international criminal law precipitated by Nuremberg, explains how they came to be, and analyses their developments since the trial. The chapter concludes in Part IV with a reflection on legacy, how Nuremberg cemented the place of individuals at the forefront of the international legal framework, and how it continues to serve as a foundational and imperfect model for international tribunals and prosecutions today.

16 In the limited space available, this chapter does not attempt to cover Nuremberg’s contribution to the concept of war crimes, which, while one of the pillars of international criminal law, existed previously in the law of armed conflict and was not subject to major innovation at Nuremberg. Similarly, the chapter does not explore the concept in the Charter of conspiracy or common plan. 17 For a detailed treatment of these themes, and of the lives and contributions of Sir Hersch L auterpacht and Raphael Lemkin in particular, see P Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity (London, Weidenfeld & Nicolson, 2016); P Sands, My Nazi Legacy: What Our Fathers Did (London, Wildgaze Films, 2015); P Sands, A Song of Good and Evil (various performances around the UK and Europe, 2014–16).

The International Military Tribunal at Nuremberg 193 II. FOUNDATIONS FOR AN INTERNATIONAL TRIBUNAL

A. Fall and Capture of the Nazi Leadership The horrors committed by the Nazi regime in Europe are well known. Sir H artley Shawcross, in his closing speech at Nuremberg on 26 July 1946, described the ten million needless deaths of soldiers, sailors and other combatants in aggressive wars waged by Hitler in Poland, Denmark, Norway, Belgium, the Netherlands, Luxembourg, Yugoslavia, Greece, and the Soviet Union.18 He lamented the deaths of civilians: 12 million men, women, and children … in the cold, calculated, deliberate attempt to destroy nations and races … Two-thirds of the Jews in Europe exterminated, more than 6 million of them on the killers’ own figures. Murder conducted like some mass production industry in the gas chambers and the ovens of Auschwitz, Dachau, Treblinka, Buchenwald, Mauthausen, Maidanek, and Oranienburg.

The foundations for Nuremberg were laid swiftly in the months following the fall of the Nazi leadership in Spring 1945. On 30 April 1945 in Berlin, Hitler, having announced to his generals that the war was lost, committed suicide with his wife, Eva Braun, inside the Führerbunker. The Battle of Berlin raged outside as the Soviet Red Army approached. The next day, Goebbels and his wife committed suicide, having killed their six children.19 Himmler followed suit after his capture and detention in British custody. Those Nazi ringleaders who had survived the war were arrested by the Allied forces in the days and weeks following Hitler’s demise. On 3 May 1945, Hans Frank, Hitler’s chief lawyer and Governor General of occupied Poland, was captured by American troops near his home in Bavaria.20 Hermann Göring, former Commander of the Luftwaffe, had been expelled from the Nazi Party after offering to take over as Führer, an overture perceived by Hitler as traitorous. On 6 May 1945, he made his way to American lines and was taken into custody. On 7 May 1945 in Rheims, France, Alfred Jodl, Chief of the Operations Staff of the Armed Forces High C ommand, signed an unconditional surrender to the Allies. On 23 May 1945, Karl Dönitz, named in Hitler’s will as Reichspräsident and Supreme Commander of the Armed Forces, surrendered to British troops with the rest of the Flensburg Government.

Nuremberg Trial Proceedings, Volume 19, Day 186, Friday 26 July 1946, Transcript 432. eg, WL Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (New York, Simon & Schuster, 1960) ch 31: ‘Goetterdaemmerung: The Last Days’, 1016–17, 1019. 20 Frank was arrested along with an extensive art collection and 42 volumes of his diaries, which were later used as evidence against him at trial. He had notated an address to his colleagues with the words: ‘We must remember that we, who are gathered together here, figure on Mr Roosevelt’s list of war criminals. I have the honour of being Number One’. The documents were prosecution exhibits at the proceedings of the IMT against Frank: Document 2233-AA-PS: Frank Diary, Official Meetings, 1943: Warsaw, 21/25/1943, in Nazi Conspiracy and Aggression, Volume IV: Documents 1409-PS-2373-PS (US Government Printing Office 1946) 916–17. See generally Sands, East West Street (n 17) 209–63. 19 See,

194 Katherine O’Byrne and Philippe Sands B. Options for Dealing with the Nazi Leaders The British judge at Nuremberg, Geoffrey Lawrence (Lord Oaksey), later posited: ‘There were, I suppose, three possible courses: to let the atrocities which had been committed go unpunished; to put the perpetrators to death or punish them by executive action; or to try them. Which was it to be?’21 Contemporaneous records reveal discussion of various approaches, but show that the decision to try the senior Nazi leadership was initially motivated primarily by politics, propaganda, and posterity, rather than a desire to develop or enforce international law. During the war, at the Moscow Conference of October 1943, the UK, the US, and the Soviet Union, on behalf of 32 nations, issued a ‘Statement on Atrocities’ intended as both a plan for the delivery of summary justice post-war and as an undisguised warning to the Nazis, whom the Allies regarded as responsible for ‘government by terror’, ‘ruthless cruelties’, and ‘monstrous crimes’.22 Local trials were the proposed option for foot-soldiers, lower-level officers and regular party members, who would be ‘judged and punished’ in the countries where atrocities had been committed.23 ‘Let those who have hitherto not imbrued their hands with innocent blood beware lest they join the ranks of the guilty,’ the Statement threatened, ‘for most assuredly the three Allied powers will pursue them to the uttermost ends of the earth’.24 At that early stage, the attitude towards the Nazi leadership was more perfunctory, and envisaged a summary form of joint punishment without judgment: ‘German criminals whose offenses have no particular geographical localization … will be punished by joint decision of the government of the Allies’.25 The Morgenthau Plan of 1944,26 initially supported by Roosevelt and Secretary Stimson, recommended that Nazi ‘Arch Criminals’ be identified, apprehended and ‘put to death forthwith by firing squads made up of soldiers of the United Nations’.27 This met with public disapproval, particularly from Jewish groups in the US.28 Stimson changed his mind, writing to the US President on 9 September 1944: ‘the very punishment of these

21 G Lawrence, ‘The Nuremberg Trial’ (1947) 23 International Affairs 151, 152–53. See further S timson, ‘The Nuremberg Trial’ (n 12): ‘There were three different courses open to us when the Nazi leaders were captured: release, summary punishment, or trial’. 22 The Statement on Atrocities was appended to the Joint Four-Nation Declaration (30 October 1943) between the US, UK, the Soviet Union and China. Note that the Statement itself was agreed to only between the US, UK and the Soviet Union, not China. 23 ibid. Over dinner at the Soviet Embassy in Tehran on 29 November 1943, Prime Minister Churchill, Marshal Joseph Stalin and President Franklin D Roosevelt discussed what was to be done with the German forces. While Stalin advocated their liquidation in large numbers, Churchill ‘took strong exception to what he termed the cold-blooded execution of soldiers who fought for their country’. Churchill said that ‘war criminals must pay for their crimes and individuals who had committed barbarous acts, and in accordance with the Moscow Document, which he himself had written, they must stand trial at the places where the crimes were committed. He objected vigorously, however, to executions for political purposes.’: Bohlen Minutes, Tehran Conference: Tripartite Dinner Meeting, November 29, 1943, Soviet Embassy, 8.30 pm. 24 ibid. 25 HJ Morgenthau, Memorandum to the President: ‘Treasury Plan for the Treatment of Germany’ (4 September 1944), in BF Smith, The American Road to Nuremberg: The Documentary Record 1944–1945 (Stanford, Hoover Institution Press, 1982) 27–28. 26 ibid. 27 ibid. 28 See, eg, American Jewish Conference, ‘Statement on Punishment of War Criminals’, 18 August 1944.

The International Military Tribunal at Nuremberg 195 men in a dignified manner consistent with the advance of civilization will have the greater effect on posterity … I am disposed to believe that at least as to the chief Nazi officials, we should participate in an international tribunal constituted to try them’.29 Churchill, on the other hand, initially favoured dealing with the Nazi leadership by political means. In November 1943, Churchill proposed to his Cabinet that a list should be compiled ‘of all major criminals’, namely ‘the Hitler and Mussolini gangs’ and ‘the Japanese War Lords’, that they should ‘be declared world outlaws’ and that once captured and identified, should be ‘shot to death within six hours and without reference to higher authority … By this means we should avoid all the tangles of legal procedure’.30 The recently declassified diaries of Guy Liddell, then head of counter-espionage at MI5, reveal that Churchill proposed at the Yalta Conference in February 1945 that ‘a fact-finding committee should come to the conclusion that certain people should be bumped off and that others should receive varying terms of imprisonment’,31 with punishment to be implemented by military bodies. Roosevelt and Stalin preferred that the Nazis should be tried before a court: Roosevelt favoured this course of action because ‘Americans would want a trial’; Stalin, ‘on the perfectly frank grounds that Russians liked public trials for propaganda purposes’.32 What the historical documents make clear is that the establishment of the IMT was not initially driven, at least at the highest level, by an appetite for a legal process per se or any sort of commitment to the elaboration of a new and broader model of international criminal justice—indeed, leaders including Churchill wished to avoid overcomplicated legalism. Their priority was not the creation of a new legal institution, but how to extend their military might to ensure that the Nazis were penalised and permanently vanquished. The Allied occupation of Germany has been characterised as an occupatio sui generis enabling war crimes proceedings based on Germany’s unconditional surrender and the assumption of supreme authority by the four powers.33 It was judges, lawyers and legal philosophers, whose contribution is discussed below, who pressed the argument that the world needed new legal rules and instruments to demonstrate abhorrence and to guard against the recurrence of such atrocities, and who devised the legal principles on which the Tribunal was based. The IMT managed to unite, though imperfectly, both principled and pragmatic aims. The British eventually acquiesced in the plan for a trial under pressure from the Americans. President Roosevelt had died on 12 April 1945, and was replaced by the more vociferously pro-trial President Harry Truman.34 No doubt the decision 29 Cited in GJ Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (New Jersey, Princeton University Press, 2000) 165. 30 ibid, 186, 188. 31 See I Cobain, ‘Britain favoured execution over Nuremberg trials for Nazi leaders’, The Guardian (26 October 2012). 32 ibid. 33 See RK Woetzel, The Nuremberg Trials in International Law (London, Stevens & Sons Limited, 1962) 58–95, esp 89. 34 The British turnaround appeared to have been prompted by a statement on 2 May 1945 by President Truman, announcing America’s commitment to a trial: ‘It is our objective to establish as soon as possible an international military tribunal; and to provide a trial procedure which will be expeditious in nature and which will permit no evasion or delay—but one which is in keeping with our tradition of fairness toward those accused of crime’: see E Stover, V Peskin and A Koenig, Hiding in Plain Sight: The Pursuit of War Criminals from Nuremberg to the War on Terror (Berkeley, University of California Press, 2016) 29.

196 Katherine O’Byrne and Philippe Sands to proceed with a trial was also influenced by the fact that the distasteful prospect of affording a manifestly evil leader a platform to mount a defence was obviated by events at the close of the war. Hitler, Himmler, Goebbels and Mussolini, the ringleading ‘gangsters’ most likely to make a trial both unpalatable and u nmanageable,35 were all dead by the end of the spring of 1945.

C. Models for the Tribunal Although there was no concrete model for an international trial for wartime crimes of military leaders captured by a victorious enemy, some precedents did exist. The examples most often cited include the trial in 1474 by judges of Austria and a number of Swiss cities of Peter von Hagenbach, the former Governor of Breisach on the Upper Rhine, for atrocities including rape and murder;36 the executive action taken against Napoleon Bonaparte by the Congress of Vienna following his escape from Elba in 1815; and the arrest and trial at Leipzig of German war criminals in 1921, following World War I, under Articles 227–30 of the Treaty of Versailles.37 This included a failed attempt to extradite ex-Kaiser Wilhelm von Hohenzollern from the Netherlands for a ‘supreme offence against international morality and the sanctity of treaties’, resisted by the Netherlands on the basis that no such crime existed in international law.38 The uncovering of previously buried historical materials means that comparators continue to accumulate. In early 2017, the Wiener Library in London opened the archive of the UN War Crimes Commission, closed since the late 1940s. The archive contains documents relating to thousands of prosecutions, by member states of the Commission, of Axis leaders including Hitler, including evidence and charges compiled while the concentration camps were in operation.39 Commentators have debated whether such examples constitute true precedents for Nuremberg, and distinctions are frequently drawn based on the nature of each forum, the crimes tried, the law applied, and the relationship between trial

35 T Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (New York, Skyhorse Publishing, 1993) 32. 36 See, eg, G Gordon, ‘The Trial of Peter von Hagenbach: Reconciling History, Historiography and International Criminal Law’, in KJ Heller and G Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford, OUP, 2013); T McCormack, ‘From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime’ in T McCormack and G Simpson (eds), The Law of War Crimes: National and International Approaches (The Hague, Kluwer Law International, 1997) 31–63. 37 Treaty of Versailles, 1919 (225 CTS 188), Art 227. 38 See M Cherif Bassiouni, ‘An Appraisal of the Growth and Developing Trends of International Criminal Law’ in J Dugard and C Van den Wyngaert (eds), International Criminal Law and Procedure (Aldershot, Dartmouth, 1996) 79–95. 39 See Wiener Library, United Nations War Crimes Commission: records, available at ; O Bowcott, ‘Opening files on Holocaust will “rewrite chapters of history”’, The Guardian (18 April 2017). For the first academic analysis of this material, see D Plesch, Human Rights After Hitler—The Lost History of Prosecuting Axis War Crimes (Washington DC, Georgetown University Press, 2017).

The International Military Tribunal at Nuremberg 197 and armed conflict.40 Looking back, from a perspective informed by the modern proliferation of war crimes tribunals with a variety of jurisdictional set-ups and by prosecutions at the domestic level of international crimes, it may be argued that such distinctions serve to illustrate the forward movement of international prosecutions in various forms. It cannot, however, be said that any provides a parallel; Nuremberg was in a class of its own in virtually every respect. In addition to its innovations of procedure and principle, it is arguable that Nuremberg represented the first tribunal that could properly be called ‘international’ in character. This argument has been based primarily on two forms of international sanction:41 first, that 23 nations signed up to the London Agreement and the C harter, representing a significant proportion of the international community of states at the time; and, second, that the international community through the General Assembly of the United Nations later endorsed the principles applied at Nuremberg42 and confirmed the understanding that the Charter and Judgment were instruments of international law.43 In late 1944, a new plan, drafted primarily in the form of a six-page memorandum by US War Department lawyer Lieutenant Colonel Murray C Bernays entitled ‘Trial of European War Criminals’,44 was presented to the US Secretary of State. Bernays’ plan contained a number of innovations, particularly in the area of collective criminality, sowing seeds that developed into what we now view as some of Nuremberg’s most significant legacies. First, Bernays developed the notion of criminal liability for ‘conspiracy or c ommon plan’, which allowed the Nuremberg indictment to reach individuals at the top of the Nazi power structures and the authors of Nazi political doctrine for acts prior to 1939, not just those who carried out orders and implemented policies. Second, the plan supported prosecution of crimes committed against German and Axis-territory nationals on religious, racial or political grounds, which, because they were not committed against enemy populations, were not traditional war crimes (ie what became the concept of crimes against humanity). Third, Bernays recommended the collective criminalisation of organisations including the SA, the SS, the Gestapo, the Nazi Government, and the Nazi Party. Meanwhile, the Soviet lawyer, legal academic and head of the Soviet Extraordinary State Commission for the Investigation of German War Crimes, Professor Aron Trainin, put forward two further major innovations in the Soviet plan: trying the Germans for waging aggressive war (crimes against peace) and doing so with

See, eg, Woetzel, The Nuremberg Trials (n 33) 17–39. ibid, 49–57. 42 UNGA Res 95(I) (n 7). 43 See International Law Commission (n 8). The Commentaries state at paragraph 96 that ‘since the Nürnberg principles had been affirmed by the General Assembly, the task entrusted to the Commission … was not to express any appreciation of these principles as principles of international law but merely to formulate them’. 44 Secretary of War to Secretary of State, Annex: Trial of European War Criminals (memorandum dated 15 September 1944), 27 October 1944. See MC Bernays, ‘Legal Basis of the Nuremberg Trials’ (1946) 35 Survey Graphic 5; Smith, The American Road to Nuremberg (n 25). 41

198 Katherine O’Byrne and Philippe Sands remeditated brutality (crimes against the laws of war).45 Bernays’ proposals became p the basis of the US plan for a war crimes trial46 and the foundation for negotiations between Britain, the US, the Soviet Union and France for the establishment of an international tribunal. Together the proposals set the stage for the design of the Tribunal and its principles at the London Conference in Summer 1945. D. Overview of the Proceedings On 8 August 1945, following several months of negotiations, the Charter of the Tribunal was agreed in London by four nations (Britain, the US, the Soviet Union and France).47 The London Agreement was ratified by 19 other states. It gave the Tribunal jurisdiction in respect of three substantive crimes (crimes against peace, war crimes, crimes against humanity), via two modes of responsibility: commission of a defined crime, regardless of superiority (‘individual responsibility’), and ‘common plan or conspiracy’. The offences appeared in Article 6 of the Charter as follows: The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) ‘Crimes against peace’: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. (b) ‘War crimes’: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. (c) ‘Crimes against humanity’: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Article 6 went on to provide that criminal responsibility could arise from a conspiracy or common plan: Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

Articles 7 and 8 respectively provided that the official position of a defendant could not be invoked in defence or mitigation, and that superior orders could be considered

45 See AN Trainin and AY Vishinsky (eds), A Rothstein (tr), Hitlerite Responsibility Under Criminal Law (London, Hutchinson & Co, 1945). 46 As approved at meeting at the Pentagon on 9 November 1944. 47 See above (n 5).

The International Military Tribunal at Nuremberg 199 not as a defence but as a mitigating factor in respect of punishment. Article 9 provided that: At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.

The Article allowed for an individual member of the organisation to apply to be heard on the question of its criminality. Each of the four Allied powers named one judge and one alternate judge, eight judges in all.48 Prosecutors were nominated from each of the four countries, including several leading lawyers. Among them were Jackson, a former AttorneyGeneral and serving Supreme Court Justice, for the US, and Sir David Maxwell-Fyfe, assisting Sir Hartley Shawcross, for Britain. Assisting the British team was an Austro-Hungarian-born lawyer, then the Whewell Chair of International Law at the University of Cambridge, Hersch Lauterpacht. Lauterpacht was instrumental in drafting aspects of Article 6 of the Charter and in catalysing the recognition in international law of crimes against individuals. A Polish lawyer, Raphael Lemkin, also born in East Central Europe, travelled from Washington DC to Nuremberg where he clung to the periphery of the American team, but waged his own campaign: having failed to get the concept of genocide included in the Charter, he managed to get it inserted into the Indictment.49 Twenty-four accused were named on the Indictment50 as having been charged with various combinations of the Charter crimes; 23 were arrested and 21 appeared at trial.51 The trial began in Courtroom 600 at the Nuremberg Palace of Justice on 20 November 1945, and ran until 1 September 1946. The Tribunal handed down its Judgment on 30 September 1946; individual convictions and sentences were read out on 1 October 1946. Nineteen accused were convicted,52 12 sentenced to death and seven to prison sentences ranging from 10 years to life imprisonment. Ten accused were executed by hanging on 16 October 1946.53 Martin Bormann, Hitler’s p rivate secretary, was never captured and was convicted and sentenced in absentia. Hermann Goering committed suicide in his cell by biting into a s muggled cyanide pill the night before he was due to be hanged.

48 They were: Lord Justice Colonel Sir Geoffrey Lawrence, President of the Tribunal (United Kingdom); Sir Norman Birkett (British alternate); Francis Biddle (United States); John J Parker (American alternate); Professor Henri Donnedieu de Vabres (France); Robert Falco (French alternate); Major General Iona Nikitchenko (Soviet Union); Lieutenant Colonel Alexander Volchkov (Soviet alternate). 49 Sands (n 16) 188–89. 50 Nuremberg Trial Proceedings, Volume 1, Indictment, Defendants, [I]. 51 They were Hermann Göring, Karl Dönitz, Hans Frank, Wilhelm Frick, Hans Fritzsche, Walther Funk, Rudolf Hess, Alfred Jodl, Ernst Kaltenbrunner, Wilhelm Keitel, Konstantin von Neurath, Franz von Papen, Erich Raeder, Joachim von Ribbentrop, Alfred Rosenberg, Fritz Sauckel, Hjalmar Schacht, Baldur von Schirach, Arthur Seyss-Inquart, Albert Speer and Julius Streicher. Robert Ley, Head of the German Labour Front, committed suicide before the trial began. Gustav Krupp von Bohlen und Halbach, a leading industrialist, was found medically unfit for trial. Martin Bormann, Hitler’s private secretary, was not captured and tried in absentia, as noted below. 52 Fritzsche, von Papen and Schacht were acquitted. 53 Frank, Frick, Jodl, Kaltenbrunner, Keitel, Ribbentrop, Rosenberg, Sauckel, Seyss-Inquart and Streicher.

200 Katherine O’Byrne and Philippe Sands III. LAWS FOR A NEW WORLD

A. Drafting the Charter A second respect in which the Nuremberg trial constituted a landmark was its role in the conception and development of new substantive rules of international law. Alongside the design and establishment of the Tribunal itself, those who drafted the Nuremberg Charter made a number of formative contributions to substantive international law, which were applied in the Judgment of the Tribunal and created a legacy that shapes international criminal law today. The core contents of the Charter of the Tribunal, the opening and closing speeches and many of the legal and factual arguments made over the course of the proceedings, as well as the Tribunal’s Judgment in 1946, enshrined soon thereafter by the UN General Assembly in the Nuremberg Principles,54 changed the landscape and shaped the future direction of international law. Of all the substantive innovations in the Charter, the drafting, use at trial, and subsequent development of the two most significant concepts are discussed in detail below: crimes against peace (Article 6(a)) and crimes against humanity (Article 6(c)). Also discussed is an international crime that did not make it into the Nuremberg Charter, but which nonetheless has been one of the most significant legacies of the trial: the crime of genocide, or acts intended to destroy groups. From 26 June to 8 August 1945, representatives of the four victorious powers— the US, France, UK, and the Soviet Union—met in London to draft the Agreement and Charter that would establish the architecture of the Tribunal and the crimes to be tried. There was disagreement on the content of the Charter, and negotiations were difficult. Some key individuals influenced the inclusion and articulation in the Charter of crimes against peace and crimes against humanity. Robert Jackson, then a former Attorney-General and US Supreme Court Justice known for championing individual liberties, was appointed as US chief counsel in May 1945, and proved a vigorous force during the negotiations on the Charter in London during Summer 1945.55 Jackson described the Nuremberg Charter itself as ‘something of a landmark, both as a substantive code defining crimes against the international community and also as an instrument establishing a procedure for prosecution and trial of such crimes before an international court’.56 He saw as particularly significant the fact that the 54

UNGA Res 95(I) (n 7). Sellars explains that he nearly walked out several times: (n 15), 84–85. As a prosecutor, Jackson was regarded as less effective than others in some respects: Telford Taylor recalls that he was criticised for his ‘disappointing’ cross-examination of Goering: Taylor, Nuremberg and Vietnam (n 11), 335–47. MaxwellFyfe wrote to his wife on 21 March 1946 about his own cross-examination of Goering: ‘Jackson had not only made no impression but actually built up the fat boy further. I think I knocked him reasonably off his perch’: A Topping, ‘Bringing a Nazi to justice: how I cross-examined “fat boy” Göring’, The Guardian (20 March 2009); correspondence of Sir David Maxwell-Fyfe available in The Papers of Lord Kilmuir, GBR/0014/KLMR, Churchill Archives Centre at the University of Cambridge. See further D Maxwell-Fyfe, Political Adventure: The Memoirs of the Earl of Kilmuir (London, Weidenfeld & Nicholson, 1964). 56 Report of Robert H Jackson, United States Representative to the International Conference on Military Trials (Washington DC, US Government Printing Office, 1945) (‘Jackson Report’), viii. 55

The International Military Tribunal at Nuremberg 201 Charter resulted from the collective efforts of individuals from vastly different legal backgrounds: The significance of the charter’s procedural provisions is emphasised by the fact that they represent the first tried and successful effort by lawyers from nations having profoundly different legal systems, philosophies, and traditions to amalgamate their ideas of fair procedure so as to permit a joint inquiry of judicial character into criminal charges.57

In negotiating the content of the Charter, Jackson, a pragmatist, relied little on legal theorising; but he did credit the advice and insights of Professor Lauterpacht, with whom he personally consulted in relation to both crimes against peace and crimes against humanity. Lauterpacht had by that time been appointed to the Whewell Chair of International Law at Cambridge. He was personally affected by the subject matter of the Nuremberg trial: his family remained in the ghettos of Zolkiew and Polish Lvov (formerly Lemberg, soon to become Soviet Lviv),58 detained as Jews by the Nazis following Operation Barbarossa and placed under the governorship of Hans Frank, one of the Nuremberg accused.59 With the exception of Lauterpacht’s niece, Inka, they did not survive.60 Lauterpacht was engaged by the Foreign Office to work on Anglo-American matters, and in September 1945 was appointed to the British War Crimes Executive, charged with the preparation and presentation of the prosecution of German war criminals.61 Jackson consulted Lauterpacht on the intricacies of drafting the C harter during the London Conference, and Lauterpacht was instrumental in advising on the terminology and format for the list of crimes. ‘I do hope’, Jackson wrote in May 1945, ‘that we can get together and that I can have the benefit of your good judgment and learning on the difficult subjects with which we must deal’.62 On 29 July 1945, Jackson visited Lauterpacht’s house in Cranmer Road, Cambridge.63 Elihu Lauterpacht recalled: ‘It was at these meetings that Hersch put forward the idea of presenting the case against the major war criminals under three principal headings: crimes against the peace; war crimes; and crimes against humanity’.64 That was almost exactly how they were reflected in the Charter. As will be seen, of all the legal dilemmas faced by the drafters of the Charter, the question of retroactivity of crimes was perhaps the most challenging. In respect of crimes against peace and crimes against humanity, whether the delegates were codifying generally accepted principles of positive law or creating sources of c riminal 57

ibid, viii–x, quoted in Mettraux, Nuremberg Trial (n 15) xiv. Polish–Soviet Border Agreement, signed 16 August 1945, entry into force 5 February 1946. 59 Sands (n 17) 219–20. 60 ibid, 102–05, 299–301. 61 Sir Hartley Shawcross also drew extensively on Lauterpacht’s expertise in preparing for N uremberg, asking him to draft substantial sections of his speeches for both the opening and closing of the trial. Lauterpacht’s drafts were published in full for the first time in H Lauterpacht, ‘Draft Nuremberg Speeches’ (2012) 1 CJICL 45. 62 Letter from Robert H Jackson to Hersch Lauterpacht (30 May 1945), quoted in E Lauterpacht, The Life of Hersch Lauterpacht (Cambridge, CUP, 2010) 272. 63 Lauterpacht (n 62) 271 fn 18, 272. 64 Jackson subsequently attributed this formulation to ‘an eminent scholar of international law’ (Jackson Report (n 56) 416), whom William E Jackson later identified as Lauterpacht: (n 62) 272 fn 20. See further on this point Sands (n 17) 110–11. 58

202 Katherine O’Byrne and Philippe Sands liability ex post facto was a vexed question. That the drafters engaged in some innovation is not in doubt, and is part of what makes Nuremberg so significant. In this respect, Nuremberg was a sign of things to come. The issue of retroactivity is an ongoing challenge in international criminal law today: even where the substantive law is established, it is problematic that many of the international tribunals (although not the ICC)65 have been established during or after the events they are designed to charge and try.66 In respect of individual accused, the willingness to overlook or de-emphasise the nullum crimen sine lege and nulla poena sine lege principles is a reflection of the wider tension between international criminal law and the right to a fair trial under international human rights law. Tragically—some may say ironically67—the signing of the London Agreement was bookended by two cataclysmic acts of war. Two days beforehand, on 6 August 1945, the US dropped an atomic bomb on Hiroshima. Nagasaki followed one day after the signing, on 9 August 1945. B. Crimes Against Peace The term ‘crimes against peace’ derived from the work of Aron Trainin,68 who attended the London Conference on behalf of the Soviet Union. The British negotiator, Lord Chancellor William Jowitt, suggested: I think Professor Trainin’s book treats aggression not as the crime of war but as a crime against peace, and I do think that if you do have a nomenclature it would be well to have a nomenclature that comes from his book, and instead of calling it ‘crime of war’, call it ‘crime against peace’.69

65 As to which see Rome Statute of the International Criminal Court, UN Doc A/CONF 183/9, 2187 UNTS 90, opened for signature 17 July 1998, (entered into force 1 July 2002) (‘Rome Statute’), Art 24. 66 See, eg, D Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’, in S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford, OUP, 2010) ch 28. 67 Note the remarks of Justice Pal in dissent at the International Military Tribunal for the Far East regarding the Allied powers’ use of the atomic bomb: ‘History will say whether … it has become legitimate by such indiscriminate slaughter to win the victory by breaking the will of the whole nation to continue to fight … This policy of indiscriminate murder to shorten the war was considered to be a crime. In the Pacific war under our consideration, if there was anything approaching what is indicated in the above letter of the German Emperor, it is the decision coming from the Allied powers to use the bomb. Future generations will judge this dire decision … It would be sufficient for my present purpose to say that if any indiscriminate destruction of civilian life and property is still illegitimate in warfare, then, in the Pacific war, this decision to use the atom bomb is the only near approach to the directives of the German Emperor during the first world war and of the Nazi leaders during the second world war’: Pal’s dissent was 1,235 pages long and is available at ‘Dissentient Judgment of Justice RB Pal, Tokyo Tribunal’ (12 November 1948) (Tokyo, Kokusho-Kankokai, 1999), at www.cwporter.com/pal10.htm. See also R Falk, ‘The Shimoda Case: A Legal Appraisal of the Atomic Attacks Upon Hiroshima and Nagasaki’ (1965) 59 AJIL 759; Y Tanaka and R Falk, ‘The Atomic Bombing, The Tokyo War Crimes Tribunal and the Shimoda Case: Lessons for Anti-Nuclear Legal Movements’ and Comment (2009) 44 The Asia-Pacific Journal 1, esp at 19; CL Blakesley, ‘Acting out against terrorism, torture and other atrocious crimes: contemplating morality, law and history’, in LN Sadat and MP Scharf, The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (Leiden, Martinus Nijhoff, 2008) 164–67. 68 Trainin and Vishinsky, Hitlerite Responsibility (n 45). 69 Jackson Report (n 56) 416–17.

The International Military Tribunal at Nuremberg 203 The question of retroactivity of crimes reared its head in relation to crimes against peace. Did a crime of waging aggressive war exist as a matter of customary international law at the time the Nazis invaded and instigated conflicts in countries across Europe, such that it could give rise to individual criminal responsibility and be made the subject of a criminal charge? And did it matter? If the principle was not so recognised, could it simply be asserted that the Charter was making new law which could legitimately be applied? It was clear that, by the start of World War II, waging aggressive war was regarded as unlawful under international law, and that the Axis powers themselves had subscribed to this view, but it was not yet recognised as a source of individual criminal responsibility. Attempts to curtail the exercise by states of aggressive military force date back to antiquity, but the first codification of a prohibition on aggression at the international level was in the Covenant of the League of Nations, signed by its original parties at Versailles in 1919.70 Following World War I, a Commission was formed by the Preliminary Peace Conference to consider the possible criminality of the acts that had provoked the conflict. The Commission concluded that deliberate violations of international law—specifically, breaches of binding treaty obligations—were culpable acts and, on that basis, recommended that the Conference formally condemn such acts. The Commission concluded, however, that no criminal charge could be laid against the responsible authorities or individuals, on the basis of institutional limitations and difficulties of proof, and thought it ‘desirable that, for the future, penal sanctions should be provided for such grave outrages against the elementary principles of international law’.71 As Lord Birkenhead, British Attorney-General, said at the time: It is necessary for all time to teach the lesson that failure is not the only risk which a man possessing at the moment in any country despotic powers and taking the awful decision between Peace and War, has to fear. If ever again that decision should be suspended in nicely balanced equipoise, at the disposition of an individual, let the ruler who decides upon war know that he is gambling, amongst other hazards, with his own personal safety.72

The Commission’s recommendation went unheeded. In September 1927, the League of Nations published a Declaration Concerning Wars of Aggression, adopted by roll call of its members,73 which included Germany, Italy and Japan. The Assembly noted its conviction that ‘a war of aggression can never serve as a means of settling international disputes and is, in consequence, an international crime’, and declared that ‘all wars of aggression are, and shall always be, prohibited’ and that ‘the States

70 Treaty of Peace Between Allied and Associated Powers and Germany, signed 28 June 1919 (entered into force 10 January 1920), Part 1. See further S Glaser, ‘The Charter of the Nuremberg Tribunal and New Principles of International Law’, in Mettraux (n 15); S Glueck, The Nuremberg Trial and Aggressive War (New York, Knopf, 1946) 25–34. 71 ‘Commission on the Responsibility of the Authors of the War and the Enforcement of Penalties’ (1920) 14 AJIL 95, 118. 72 D Lloyd George, Memoirs of the Peace Conference (New Haven, Yale University Press, 1939) 60. 73 Declaration Concerning Wars of Aggression, Special Supplement No 53, League of Nations Official Journal, 22 (24 September 1927) 22. This document is reproduced as Document No 5 in BB Ferencz’s work, Defining International Aggression—The Search for World Peace (Dobbs Ferry, Oceana Publications, 1975), vol 1, and available at www.derechos.org/peace/dia.

204 Katherine O’Byrne and Philippe Sands Members of the League are under an obligation to conform to these principles’.74 In 1928, Germany, Italy and Japan were all original signatories to the Kellogg– Briand Pact,75 declaring ‘that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another’.76 Germany had also concluded non-aggression treaties with numerous countries including England,77 France,78 the Soviet Union79 and Poland.80 Despite, however, the ambiguous reference to ‘an international crime’, these instruments did not explicitly make aggression a source of individual, as opposed to state, responsibility which could be prosecuted under international law. If a law, it was a law without a sanction capable of being incurred by individuals. Lauterpacht had in the early 1940s expressed the view that the punishment by legal means of aggressive war was a social necessity: There appear to be compelling reasons for the establishment in the future of an International Criminal Court having jurisdiction to try the crime of war (i.e. resort to war in violation of international law) … In this matter the position is now different from that which obtained in 1914 and which prompted the Commission of Responsibilities set up in 1919 by the Paris Conference to declare that ‘by reason of the purely oppositional character of the institutions at The Hague for the maintenance of peace (International Commissions of Enquiry, Mediation and Arbitration) a war of aggression may not be considered as an act directly contrary to positive law.’ The law of any international society worthy of the name must reject with approbation the view that between nations there can be no aggression calling for punishment. It must consider the responsibility for the premeditated violation of the General Treaty for the Renunciation of War as lying within the sphere of criminal law.81

Views of participants at the London Conference were split over whether the Charter could, or more to the point whether it should, declare that crimes against peace could attract individual criminal responsibility.82 Jackson and the US delegation answered both questions firmly in the affirmative: International Law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties or agreements between nations and of accepted customs … Innovations and revisions in International Law are brought about by the action of

74 ibid.

75 General Treaty for Renunciation of War as an Instrument of National Policy, signed 27 August 1928, 94 LNTS 57 (entered into force 24 July 1929). 76 ibid. 77 German–British Non-Aggression Pact (30 September 1938). 78 German–French Declaration (‘Die deutsch-französische Erklärung’) (6 December 1938). 79 Molotov–Ribbentrop Pact (23 August 1939). 80 German–Polish Non-Aggression Pact (26 January 1934). 81 H Lauterpacht, ‘The Law of Nations and the Punishment of War Crimes’ (1944) 21 BYIL 58, 81 and fn 1; also published in E Lauterpacht (ed), International Law: Collected Papers (Cambridge, CUP, 2004), vol 5, 519 and fn 42. 82 See S Glueck, ‘The Nuernberg Trial and Aggressive War’, in Mettraux (n 15), for an exposition of the positions by an attendee at the London Conference. Glueck, for his part, had not been convinced of the idea in 1944 but came around based on the argument that the Pact of Paris together with other treaties and resolutions was sufficiently developed custom: see ibid, fn 3.

The International Military Tribunal at Nuremberg 205 g overnments designed to meet a change in circumstances. It grows, as did the Common-law, through decisions reached from time to time in adapting settled principles to new situations.83

Jackson therefore was ‘not disturbed by the lack of precedent for the inquiry we propose to conduct’. In his view, by the time the Nazis came to power it was established that launching an aggressive war was illegal and the defence of legitimate warfare was unavailable. ‘It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal’.84 The French delegation had concerns, however, that designating aggression as a criminal charge was neither principled nor wise. On 19 July 1945, Professor André Gros voiced his objections to the American draft: We do not consider as a criminal violation the launching of a war of aggression. If we declare war a criminal act of individuals, we are going farther than the actual law … We do not want criticism in later years of punishing something that was not actually criminal … It is said very often that a war of aggression is an international crime, as a consequence of which it is the obligation of the aggressor to repair the damages caused by his actions. But there is no criminal sanction … We think it will turn out that nobody can say that launching a war of aggression is an international crime—you are actually inventing the sanction.85

Interestingly, Gros’ objections derived at least in part from his belief that the parties were engaged in the building of a landmark, and that therefore the legal principles contained in the Charter must be robust. ‘The statute of the International Tribunal will stand as a landmark which will be examined for many years to come’, he said, ‘and we want to try to avoid any criticisms’.86 Lauterpacht, as ever, analysed the applicable principles in detail, and in doing so assisted in assuaging the concerns about a lack of precedent. In his role on the British War Crimes Executive, he wrote to the Foreign Office after the signing of the Charter on 20 August 1945: The main criticism which the Government will have to meet in this matter will be that [Article 6(a)] is an innovation. The paragraph which I am sending you shows that it is not so … The General Treaty for the Renunciation of War not only rendered aggressive war unlawful; it condemned it and thus created the basis for a declaration that aggressive war is not only unlawful, but also criminal. It is very important that full use should be made in this connection of the General Treaty for the Renunciation of War—a universal treaty solemnly ascribed to by Germany, Italy and Japan. The legislative character, if any, of the Agreement of August 8, 1945, consists in the acceptance of the principle—which is an unavoidable principle if the law is not to be reduced to an absurdity—that the agency which commits a criminal act is not the abstract mystical entity of the State, but human beings who plan and execute the crime. There is, therefore, on sound principle no element of retroactivity either

Jackson Report (n 56) 51–52. 52 (emphasis added). In a letter to Sir Stephen Schwebel in May 1999, Jackson’s son William recalled that Lauterpacht agreed with this analysis when they consulted together in Cambridge. William Jackson had accompanied his father on the trip from London. ‘The subject of discussion, as I recall, was whether a war of aggression was a crime under international law (which was central to my father’s position during the London negotiations). I believe that Professor Lauterpacht shared and supported my father’s position’: quoted in Lauterpacht (n 62) 271 fn 18. 85 Jackson Report (n 56) 295. 86 ibid. 84 ibid,

206 Katherine O’Byrne and Philippe Sands in expressly declaring an aggressive war to be a criminal act or in fixing that responsibility upon the individual human agents.87

Lauterpacht knew that convincing the Tribunal would not be easy. In drafting Shawcross’s opening speech, Lauterpacht took care to demonstrate that the criminalisation of waging of aggressive war was ‘not in any way an innovation’.88 Lauterpacht devoted pages to identifying legal sources establishing the illegality of aggression, then again took the further step of arguing that the criminal prosecution of individuals for such conduct was not the retrospective operation of new law. Rather, it amounted to holding the individuals representing the ‘controlling minds’ of the state responsible, rather than permitting them to hide behind the ‘veil’ of the state. The mental energy Lauterpacht dedicated to this issue, however, demonstrates that the question exercised him greatly. When it came to Shawcross’s closing speech, Lauterpacht was even more emphatic, asserting that, ‘in a very real sense, the crime of war had become the parent of and the opportunity for the war crimes’.89 The Tribunal agreed. On 1 October 1946, in the Judgment, aggression was declared the ‘supreme international crime’.90 The Tribunal had preceded this assessment by describing the charges of planning and waging aggressive war as ‘charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world’.91 The legal theorist Hans Kelsen, who taught Lauterpacht in Vienna in the early 1920s, later reflected that it was the Charter, and not the Judgment, that created aggression as an international crime: The rules created by this Treaty and applied by the Nuremberg Tribunal, but not created by it, represent certainly a new law, especially by establishing individual criminal responsibility for violations of rules of international law prohibiting resort to war.92

The legacy created by the Charter and the Judgment in recognising the crime of aggression has reverberated through international legal history, and ultimately come full circle. It is striking that such significant advances, culminating in criminal convictions, were made at Nuremberg when, 50 years later, in negotiating the Rome Statute of the International Criminal Court, state parties still could not agree on the definition of the crime. Some states disputed whether the Court should have jurisdiction over aggression at all. As a compromise measure, it was agreed that aggression should be included in the Court’s subject matter jurisdiction, but its definition, and the exercise by the Court of that jurisdiction, would be postponed.93 87 Hersch Lauterpacht to Patrick Dean, Foreign Office legal adviser, 20 August 1945, quoted in Lauterpacht (n 62) 273. 88 H Lauterpacht, Draft Opening Speech—Part I (typed foolscap, 1945) 17, quoted in P Sands, ‘Twin Peaks: The Hersch Lauterpacht Draft Nuremberg Speeches’ (2012) 1 CJICL 37, 39. 89 H Lauterpacht, Draft Closing Speech (typed foolscap, 1946) 35, quoted in Sands, Twin Peaks (n 88) 41. 90 Nuremberg Trial Proceedings, Volume 22, Day 217, 30 September 1946, 426. 91 ibid. 92 H Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’, in Mettraux (n 15) 275. 93 See discussion of the debates surrounding the inclusion of the crime of aggression in the Rome Statute in WA Schabas, The International Criminal Court: A Commentary on the Rome Statute, 2nd edn (Oxford, OUP, 2010) 303–05. Schabas notes that it was ‘literally on the final day of the Conference,

The International Military Tribunal at Nuremberg 207 That task was accomplished94 at the Review Conference of the Rome Statute in May and June 2010, in Kampala, Uganda, within the framework established by the Assembly of States Parties to the Rome Statute. Stefan Barriga and Claus Kreß describe the mood amongst those individuals present on the final evening of the conference at Kampala on 11 June 2010: After two weeks of intense consultations, the endgame was as dramatic as anyone could have imagined. After the President of the Conference had tabled his last attempt to reach consensus shortly before midnight on the final day of the Conference, delegates held their breaths as one delegation raised its flag to voice a number of concerns. A collective sigh of relief filled the room as it became clear that, despite these concerns, no delegation was willing to stand in the way of consensus. Moments later, thunderous applause erupted as the President declared the Kampala compromise on the crime of aggression adopted. That night, the terrace of the vast Munyonyo Commonwealth Resort, with its splendid view of Lake Victoria, was transformed into the place where delegates from the world over celebrated the conclusion of an almost century-long process of trying to define the crime.95

The crime of aggression has thus been brought into the twenty-first century and defined to reflect modern warfare. But the conviction of individuals at Nuremberg for waging aggressive war is yet to be replicated. The amendments require two further conditions to be fulfilled for the International Criminal Court to exercise jurisdiction. The jurisdiction of the Court may begin one year after the 30th ratification of the amendment, but not before the Assembly of States Parties has approved the commencement of jurisdiction after 1 January 2017. While 32 states have now ratified the amendments, the approval of commencement of jurisdiction has yet to occur. In addition, the amendments only come into force for parties that have ratified the amendments. Germany has done so. Other powerful parties to the Rome Statute, including the United Kingdom, France, Canada, Japan, South Korea and Australia, have not. Non-party states, including the United States and Russia, as well as Israel, India and China, have chosen not be bound by principles similar to those that bound the German defendants at Nuremberg. The jurisdictional requirements for the prosecution of aggression, in Article 15 bis of the Rome Statute, have the effect that the ICC will only have jurisdiction over an act of aggression committed by a state party which has accepted that jurisdiction, and only when that act is also committed against a state party.96 [that] agreement was reached that authorized the Court to exercise jurisdiction over aggression once the crime was defined and its scope designated in a manner consistent with the purposes of the Statute and the ideals of the United Nations’: 305. 94 Article 8 bis of the Rome Statute now defines the crime of aggression as ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression’: (1). An ‘act of aggression’ is ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’: (2). Article 15 bis provides for jurisdiction over aggression. The Court will not exercise such jurisdiction over a State that has declared that it does not accept jurisdiction: (4) or a State that is not party to the Rome Statute: (5). 95 S Barriga and C Kreß (eds), The Travaus Préparatoires of the Crime of Aggression (Cambridge, CUP, 2012) xv. See further C McDougall, The Crime of Aggression under the Rome Statute (Cambridge, CUP, 2013). 96 See KJ Heller, ‘The Sadly Neutered Crime of Aggression’, Opinio Juris (13 June 2010) available at .

208 Katherine O’Byrne and Philippe Sands Despite the painstaking development of a complex legal framework over a period of a century, in which Nuremberg was undoubtedly a landmark, the legacy remains imperfect. It remains the fact that the instigators of wars that may be characterised as aggressive may never be prosecuted as such. In any event, even in addition to the restrictive jurisdictional requirements, the crime of aggression is likely to be very difficult to apply in practice. The idea that in every inter-state conflict one or both sides must be a wrongdoer is arguably unrealistic, when the concept of whether a war is legitimate is usually a subjective and partisan one.97 Nor can it be said, in many cases, that a decision whether to go to war is ‘suspended in nicely balanced equipoise’,98 even if ultimately the final decision is taken by an individual or a group of individuals. C. Crimes Against Humanity The concept of crimes against humanity, ultimately defined in Article 6(c) of the Charter, crystallised against the backdrop of the Charter’s drafters being faced with the problem that traditional principles of international humanitarian law left a gap. ‘War crimes’ did not cover acts of atrocity committed by a state against its own people. Essentially, as Sir Hartley Shawcross explained in his closing speech during the trial, crimes against humanity were intended to cover atrocities ‘which the Criminal Law of all countries would normally stigmatise as crimes: murder, extermination, enslavement, persecution on political, racial or economic grounds’99 when committed against a civilian population, as well as discriminatory persecution of the kind that was rife during the Nazi regime. In substance, therefore, the crimes were similar to war crimes; but their legal foundation differed. On the questions of legal innovation and retroactivity, it appears clear that the concept of individual criminal responsibility for crimes against humanity was novel. In older documents, the terms ‘humanity’, ‘laws of humanity’, ‘dictates of humanity’ and the like had been used non-technically—for example, in the Fourth Hague Convention of 1907.100 In May 1915, the Allies used the term in a joint declaration on the massacre of Armenians: In view of these new crimes of Turkey against humanity and civilization the Allied governments announce publicly … that they will hold personally responsible … all members of the Ottoman government … who are implicated in such massacres.101

The inclusion of the term in the Charter, however, marked its first appearance in an instrument of international law using the formulation ‘crimes against humanity’ as

97 See, eg, the critical perspective offered by M Walzer, ‘The Crime of Aggressive War’ (2007) 6 Washington University Global Studies Law Review 635. 98 See above (n 72). 99 Nuremberg Trial Proceedings, Volume 19, Day 186, 26 July 1946, Transcript 470. 100 Laws and Customs of War on Land (Hague IV) (18 October 1907), Preamble. 101 United States Department of State, Papers relating to the foreign relations of the United States, 1915, Supplement, The World War (1915), Part IV: Other problems and responsibilities, 981, ‘The Ambassador in France (Sharp) to the Secretary of State [Telegram], Paris, May 28, 1915’.

The International Military Tribunal at Nuremberg 209 a source of individual criminal liability. In 1947, the principal French IMT judge, Professor Henri Donnedieu de Vabres, frankly observed in hindsight that, in contrast to war crimes, ‘the concept of “crimes against humanity” is a new one. It had probably been conceptualised by some authors for a certain time, but only with the Nuremberg trial did this notion enter into judicial practice’.102 Lauterpacht was of a similar view, and (privately at least) did not seek to make a case against retroactivity. He explained to the Foreign Office that the concept of ‘crimes against humanity’ was ‘clearly an innovation’: It is a fundamental piece of international legislation affirming that international law is not only the law between States but also the law of mankind and that those who transgress against it cannot shield themselves behind the law of their State or the procedural limitations of international law … It will be as well if the four Governments frankly admit that—notwithstanding the doctrine and the various historical instances of humanitarian intervention—all this is an innovation which the outraged conscience of the world and an enlightened conception of the true purposes of the law of nations impel them to make immediately operative.103

It will be recalled that Article 6(c) of the Charter defined crimes against humanity as ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal’ (emphasis added). The French and English texts of the Charter originally contained a semi-colon after the phrase ‘before or during the war’. This was thought to create two different types of crimes against humanity, one encompassing any of the enumerated acts against a civilian population, and one comprising persecutions with a connection (or ‘nexus’) to crimes against peace, war crimes or common plan. As Lauterpacht explained, ‘The principle part of paragraph (c), namely; its first sentence[104] is very wide indeed; it is not limited by the somewhat vague qualifications to which the crimes enumerated in the second sentence are subject’.105 It was, however, later discovered that the Russian text contained a comma in place of the semi-colon in the definition, creating a drafting ambiguity as to whether the ‘nexus’ requirement applied to the whole of Article 6(c), or only to its second phrase.106 On 6 October 1945, the prosecutors from all four nations signed the Berlin Protocol agreeing that the Russian text was correct.107

102 H Donnedieu de Vabres, ‘The Nuremberg Trials and the modern principles of international criminal law’ in Mettraux (n 15) 227. Egon Schwelb, in ‘Crimes against Humanity’ (1946) 23 BYIL 178, 179, similarly described crimes against humanity as a ‘novel’ concept in law, while Hannah Arendt, writing after the trial in Israel of Adolf Eichmann, called it ‘new and unprecedented’: Eichmann in Jerusalem: A Report on the Banality of Evil (first published 1963; New York, Penguin, 2006) 255, 257. 103 Letter from Hersch Lauterpacht to Patrick Dean, FO371/51034 (20 August 1945), quoted in Lauterpacht (n 62) 274. 104 It may have been that Lauterpacht meant the first ‘phrase’ of Article 6(c), before the semi-colon, rather than the first sentence, as Article 6(c) did not contain more than one sentence. 105 Letter from Hersch Lauterpacht to Patrick Dean, FO371/51034 (20 August 1945), quoted in Lauterpacht (n 62) 274. 106 For a full discussion of this issue see C Fournet, Genocide and Crimes Against Humanity: Misconceptions and Confusion in French Law and Practice (Oxford, Hart, 2013) 21–22. 107 Berlin Protocol signed on 6 October 1945, available at .

210 Katherine O’Byrne and Philippe Sands Nevertheless, the Indictment, signed on the same day, charged crimes pursuant to Article 6(c) under two headings. Part X(A) mirrored the language of the first phrase of Article 6(c): ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations before and during the war’ (emphasis added) in relation to civilians believed to be hostile or potentially hostile to the Nazis, including the operation of concentration camps since 1933.108 Part X(B) mirrored the second phrase, charging ‘persecution on political, racial, and religious grounds in execution of and in connection with the common plan mentioned in count one’ (emphasis added) in relation to the Jews, including internment at concentration camps, murder and ill-treatment, also dating back to 1933. This bipartite division of the concept, with nexus to the common plan applying only to the second part, would suggest that the Allies did not intend at an early stage for the nexus requirement to apply to the whole of Article 6(c), or to exclude crimes occurring before 1939 from the jurisdiction of the Tribunal. It is unlikely, however, that the parties would have gone to the effort to sign the Berlin Protocol for the sake of a comma if they had not considered that it altered the scope of Article 6(c).109 Ultimately, the Tribunal found the charges of crimes against humanity substantiated. It declined, however, to find that crimes against humanity were carried out before the war, in the years between 1933 and 1939, because it interpreted the nexus requirement in the second phrase of Article 6(c) as applying to the whole paragraph. The Tribunal observed that: To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter.110

Nonetheless, the Tribunal went on to make the first findings of crimes against humanity, stating that from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.111

The significance of the convictions for crimes against humanity was later identified by Hannah Arendt, in her Epilogue to Eichmann in Jerusalem: The Banality of Evil.112

108

Nuremberg Trial Proceedings, Volume 1, Indictment, Count Four—Crimes Against Humanity. a contemporaneous view see E Schwelb, ‘Crimes Against Humanity’ (1946) 23 BYIL 178; see also the extensive analysis in M Cherif Bassiouni, Crimes Against Humanity in International Law, 2nd edn (Kluwer Law International, 1999) 25–30. 110 Nuremberg Judgment (n 6) ‘The Law Relating to War Crimes and Crimes Against Humanity’, available at . 111 ibid. 112 Arendt (n 102). 109 For

The International Military Tribunal at Nuremberg 211 There, she argued that while the Nuremberg judges appeared more comfortable with convicting the accused of the more readily recognisable war crimes, they reserved crimes against humanity for the most egregious cases. Arendt added: ‘they revealed their true sentiment by meting out their most severe punishment, the death penalty, only to those who had been found guilty of those quite uncommon atrocities that actually constituted a “crime against humanity”’.113 Indeed, without exception, all those sentenced to death had been convicted of crimes against humanity.114 This priority given to protecting individuals including German citizens as well as those of other nationalities was what Schwelb later described as a ‘radical inroad … into the sphere of the domestic jurisdiction of sovereign states’.115 The single most significant development in the concept of crimes against humanity since Nuremberg has been its liberation from the ‘nexus’ requirement linking it to armed conflict.116 In fact, the requirement was not mentioned in Allied Control Council Law No 10, under which the Allies supervised the subsequent trials of lowerlevel functionaries and private citizens before the Nuremberg Military T ribunals from 1946 to 1949.117 In 1947, the UN General Assembly requested the International Law Commission to draft a code of offences against the peace and security of mankind based on the Nuremberg Principles. The Draft Code was not completed for 50 years, but significantly, its 1996 iteration omitted the requirement for inhumane acts to be committed ‘before or during the war’.118 While the Statute of the International Criminal Tribunal for the former Yugoslavia retained a requirement that crimes against humanity be committed ‘within armed conflict’,119 whether international or non-international, the Statute of the International Criminal Tribunal for Rwanda omitted the formal nexus with armed conflict but instead required that the inhumane acts must be part of a ‘systematic or widespread attack against any civilian population on national, political, ethnic, racial or religious grounds’.120 The Rome Statute similarly mandates that ‘murder, extermination, torture, rape,

113

ibid, 257. The converse was almost true: with only a few exceptions, a conviction of crimes against humanity resulted in a death sentence. The exceptions were Walther Funk (life imprisonment), Baron Konstantin von Neurath (15 years), Baldur von Schirach (20 years) and Albert Speer, the only defendant to plead guilty (20 years). 115 Schwelb, ‘Crimes Against Humanity’ (n 109) 179. 116 K Ambos and S Wirth, ‘The current law of Crimes against Humanity: an analysis of UNTAET Regulation 15/2000’ (2002) 13 Criminal Law Forum 1, 3–13; Antonio Cassese, International Law (2nd edn, Oxford, OUP, 2005), 442; and see generally Beth van Schaack, ‘The Definition of Crimes against Humanity: Resolving the incoherence’ (1998) 37 Columbia Journal of Transnational Law 787. 117 Allied Control Council Law No 10, Article II(1)(c). 118 International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind with commentaries (1996), adopted by the International Law Commission at its 48th session, in 1996, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session [50]. The report, which also contains commentaries on the draft articles, appears in (1996) ILC Ybk, vol II, Part Two. 119 UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended), 25 May 1993 (as established by UNSC Res 808/1993, 827/1993 and amended by UNSC Res 1166/1998, 1329/2000, 114/2002) (‘ICTY Statute’), Art 5. 120 UN Security Council, Statute of the International Criminal Tribunal for Rwanda (as amended), 8 November 1994 (as established by UNSC Res 955 (1994) of 8 November 1994 and last amended by UNSC Res 1717 (2006) of 13 October 2006) (‘ICTR Statute’), Art 3. 114

212 Katherine O’Byrne and Philippe Sands political, racial, or religious persecution and other inhumane acts’ reach the threshold of crimes against humanity only if they are ‘part of a widespread or systematic attack directed against any civilian population’.121 While crimes against humanity are not yet the subject of their own specific convention (the ILC is currently elaborating a draft convention under the stewardship of Professor Sean Murphy),122 their flexibility has enabled them to embrace developing conceptions of inhumanity, such as torture, rape and sexual assault.123 Although protections against gender-based violence were not a feature at Nuremberg,124 they have become a fundamental aspect of modern international humanitarian and criminal law, which Lauterpacht’s conception of crimes against humanity has been sufficiently wide to embrace. As David Luban has put it, the phrase ‘has acquired enormous resonance in the legal and moral imaginations of the post–World War II world’ in two senses, being crimes that aggrieve all human beings as well as violating the core value of our shared humanity.125 In May 1999, Serbian President Slobodan Milošević became the first serving head of state to be indicted for crimes against humanity, for alleged acts in Kosovo. In April 2012, Charles Taylor was the first head of state to be convicted of crimes against humanity. A few months later he was sentenced to 50 years in prison. The unshackling of crimes against humanity has not only allowed for successful prosecutions, but has gone further. For example, in 2013 the UN Human Rights Council established a Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea.126 The Commission’s mandate was to investigate ‘systematic, widespread and grave violations of human rights … with a view to ensuring full accountability, in particular where these violations may amount to crimes against humanity’.127 In its final report in 2014, the Commission considered that

121

Rome Statute (n 65), Art 7. its 66th session in 2014, the International Law Commission decided to include ‘crimes against humanity’ in its programme of work, and to appoint Professor Sean Murphy as Special Rapporteur for the topic: Report of the International Law Commission, 66th session (5 May–6 June and 7 July–8 August 2014), UN GAOR, 69th session, Supplement No 10, UN Doc A/69/10, Ch XIV, s A.1. For a summary of the Commission’s ongoing work on crimes against humanity, with links to the relevant texts and instruments, see ILC, Summaries of the Work of the International Law Commission, Crimes against humanity, a vailable at . 123 Although the concept of crimes against humanity in the Charter did not refer to gender-based crimes, it has in later years become a useful tool for prosecuting them. Allied Control Council Law No 10 outlawed rape as a crime against humanity (Art II(1)(c)), though no rapes were prosecuted. Note the resolution adopted by UN Security Council in 2008, which noted that ‘rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide’: UNSC Res 1820, UN SCOR, 63rd session, UN Doc S/Res/1820 (19 June 2008), [18]. 124 Indeed, there were hardly any women present at Nuremberg, the notable exception being Katherine B Fite, a US lawyer who was involved in the preparations for and proceedings of the IMT. See generally JQ Barrett, ‘Katherine B Fite: The Leading Female Lawyer at London & Nuremberg, 1945’ (Paper presented at the Robert H Jackson Third Annual International Humanitarian Law Dialogs, Chautauqua Institution, 31 August 2009). Katherine Fite was the staff lawyer who travelled with Jackson to meet Lauterpacht in Cambridge on 29 July 1945: Sands (n 17) 111. 125 David Luban, ‘A Theory of Crimes Against Humanity’, (2004) 29 Yale JIL 85, 86. 126 Human Rights Committee, Situation of human rights in the Democratic People’s Republic of Korea, 22nd session, UN Doc A/HRC/RES/22/13 (9 April 2013). 127 ibid [5]. 122 At

The International Military Tribunal at Nuremberg 213 its basic factual findings (including findings of murder, rape, forced disappearances, population transfers, persecution, and the particular inhumane act of knowingly causing prolonged starvation) could constitute reasonable grounds establishing the commission of crimes against humanity, warranting domestic or international criminal investigation.128 The Commission’s conclusions demonstrate the existence of a widespread and systematic attack on the civilian population, the relevant conduct occurring throughout and beyond the DPRK over an extended period, and being perpetrated ‘pursuant to policies established at the highest level of the State’.129 As the experience of the Commission shows, the absence of a war nexus requirement raises violations of basic human rights to a level equal with that of breaches of humanitarian law. The concept of crimes against humanity permits a state to be held responsible for grave failures in upholding the human rights of its own nationals, even in times of peace. Despite Nuremberg’s more conservative approach, the articulation of crimes against humanity in the Charter and in the Judgment were crucial precursors to these more modern developments. D. Genocide Today, the mass killing of Jews, gypsies, Poles, homosexuals, and other minorities in the Holocaust, broadly defined, is the most obvious and frequently cited example of what we now regard as genocide. Yet the astute reader will note that genocide was not one of the crimes enumerated in the Nuremberg Charter, and nor was it mentioned in the Tribunal’s Judgment. An analysis of Nuremberg’s significance and legacy, however, would not be complete without making mention of the crime of genocide. The recognition of genocide was initially an individual project. At and around the time of Nuremberg, genocide was the sole obsession of one individual, Raphael Lemkin. Born in what is now Belarus, Lemkin, like Lauterpacht, studied law at the University of Lwow where be obtained a doctorate in criminal law. He then worked as a public prosecutor in Warsaw.130 At a conference in Madrid in 1933, his first paper was circulated, proposing that a new international law was needed to prohibit barbarism and repression against racial and religious groups.131 Lemkin cited examples: the Huguenots in France; the Protestants in Bohemia; the Hottentots in German West Africa; the Armenians in Turkey. He also warned about Hitler’s recent rise to power in Germany. 128 Human Rights Committee, Report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea, 25th session, UN Doc A/HRC/RES/25/63 (7 February 2014), [74]. 129 ibid [75]. 130 R Lemkin and D-L Frieze (ed), Totally Unofficial: The Autobiography of Raphael Lemkin (New Haven, Yale UP, 2013) 20–21. See generally D Irvin-Erickson, Raphael Lemkin and the Concept of Genocide (Philadelphia, University of Pennsylvania Press, 2017); JQ Barrett, ‘Raphael Lemkin and “Genocide” at Nuremberg’, in C Safferling and E Conze, The Genocide Convention Sixty Years After Its Adoption (The Hague, Asser, 2010); J Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (New York, Palgrave M acmillan, 2008); S Power, ‘A Problem from Hell’: America and the Age of Genocide (New York, Basic Books, 2002). 131 Sands (n 17) 157, 175.

214 Katherine O’Byrne and Philippe Sands In the early 1940s, Europe was in the grips of what Churchill described as ‘the crime without a name’.132 Lemkin escaped Europe as an academic refugee, taking up a post at Duke University in North Carolina, USA, carrying with him suitcases full of Nazi decrees and ordinances which he believed showed Hitler’s underlying aims. Lemkin’s analysis of German rule in occupied countries, Axis Rule in Occupied Europe, was published in November 1944.133 In Chapter IX, he named the crime ‘genocide’, defined as the ‘extermination of racial and religious groups’.134 In S ummer 1945, he was appointed as an advisor to the War Department and to Robert Jackson. Lemkin’s ideas were controversial and were resisted by the legal teams at Nuremberg, for both legal and political reasons. Lauterpacht considered the crime of genocide to be unsupported by past practice, and had previously been rather dismissive of Lemkin’s work.135 In the US, conservatives were anxious about whether African-Americans could invoke the term ‘genocide’ to seek redress from the state.136 British and other colonial powers may well have had the same concerns about past acts directed at the elimination or assimilation of cultural groups.137 Lemkin campaigned for the German leaders to be charged with the crime of ‘genocide’, but was disappointed to learn late in the summer that the Nuremberg Charter made no reference to the word. But, having flown to London to press for

132 BBC, ‘Prime Minister Winston Churchill’s broadcast to the world about the meeting with President Roosevelt’ (24 August 1941), available at www.ibiblio.org/pha/policy/1941/410824a.html. 133 Cited by the International Court of Justice when defining the protected group in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (2007) ICJ Reports 43, [193]. 134 Sands (n 17) 179. 135 ibid, 107, 108. 136 Obstructionism also from conservatives prevented Congress’s assent to the Genocide Convention in 1948: DT Critchlow and N MacLean, Debating the American Conservative Movement: 1945 to the Present (Lanham MD, Rowman & Littlefield, 2009), 138. Similar tactics had been used in relation to the inclusion of a non-discrimination clause in the Universal Declaration of Human Rights: A de Conde, Ethnicity, Race, and American Foreign Policy: A History (New Hampshire, UPNE, 1992) 129. Such fears proved to some degree well founded as, between 1946 and 1951, three American civil rights organisations directly petitioned the UN to obtain assistance in combatting racial discrimination in the United States. The third petition, submitted by the Civil Rights Congress in 1951, made specific allegations based on the newly adopted Genocide Convention that each level of US administration, from local to federal, was engaged in genocide against the black populace: see CH Martin, ‘Internationalizing “the American dilemma”: the Civil Rights Congress and the 1951 Genocide Petition to the United Nations’ (1997) 16 Journal of American Ethnic History 35, 36. Nonetheless, redress was not forthcoming. 137 See discussion of these objections in M Lewis, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919–1950 (Oxford, OUP, 2014), 202–03. Indeed, Lemkin had conducted a detailed case study of the Tasmanian Aboriginal peoples as part of an unfinished work on genocide written in the 1940s–50s: see generally A Curthoys, ‘Raphael Lemkin’s “Tasmania”: An Introduction’ in D Moses and D Stone (eds), Colonialism and Genocide (Abingdon, Routledge, 2013). Nonetheless, prior to the UK’s ratification of the Genocide Convention (delayed by concerns about the extradition obligation under Art 7), the British Conservative Government felt no qualms in ‘giving an unqualified assurance that Her Majesty’s Government would never themselves violate the principles embodied in the Convention’: United Kingdom, Parliamentary Debates, House of Commons, 18 July 1962, 423–4 (Edward Heath). Similarly, despite advertence to Genocide Convention’s applicability to treatment of indigenous peoples, it was apparently not considered at the time of Australia’s ratification that the Genocide Convention might be relied upon by its Aboriginal and Torres Strait Islander peoples: Commonwealth, Parliamentary Debates, Senate, 6 July 1949, 2004–05 (Reginald Murray).

The International Military Tribunal at Nuremberg 215 the inclusion of ‘genocide’ in the Nuremberg Indictment, Lemkin was in the end successful.138 Count Three of the Indictment, on war crimes, under the heading ‘Murder and ill-treatment of civilian populations of or in occupied territory and on the high seas’, stated as follows: Throughout the period of their occupation of territories overrun by their armed forces the defendants, for the purpose of systematically terrorizing the inhabitants, murdered and tortured civilians, and ill-treated them, and imprisoned them without legal process. The murders and ill-treatment were carried out by divers means … [The defendants] conducted deliberate and systematic genocide, viz, the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others.

In the closing arguments for each of the prosecuting states at the end of the trial, the concept of ‘genocide’ was again used by the Soviet, French and British lawyers.139 All three states supported a conviction for genocide. Sir Hartley Shawcross’s closing speech,140 as drafted by Lauterpacht, did not mention the word. Nor did Robert Jackson in his closing speech for the US. Nor, in the end, did the Tribunal’s J udgment. Lemkin later recorded the day of the Judgment as ‘the blackest’ of his life.141 Lemkin redoubled his efforts before the United Nations. By the end of 1946, he had convinced the General Assembly to pass a resolution recognising genocide as a crime under international law.142 His efforts eventually led to the adoption of the Genocide Convention at the UN on 9 December 1948.143 Article 2 defines genocide as ‘any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’, namely, killings, serious bodily or mental harm, deliberately inflicting conditions of life calculated to cause physical destruction, preventing births and forcibly transferring children. In 1951, the ICJ confirmed that the Convention has jus cogens force.144 In this respect, Nuremberg is a landmark not in the sense of being the site of recognition of the crime of genocide, but as a gateway to recognition. Nuremberg saw the first mention of ‘genocide’ in a formal international legal document, the 138 In his unpublished autobiography, Lemkin speaks of having gone to London in 1945, as the uremberg Charter was concluded, and ‘succeeded in having inscribed the charge of genocide against N the Nazi war criminals in Nuremberg. Everything seemed to progress successfully with the genocide charge against the Nazis until things started to be spoiled at Nuremberg’: R Lemkin, ‘Totally Unofficial Man’ in S Totten and SL Jacobs (eds), Pioneers of Genocide Studies (New Brunswick, New Jersey, Transaction Publishers, 2013) 375. 139 Nuremberg Trial Proceedings, Volume 19, Day 186, 26 July 1946, Transcript 493, 496, 497, 508, 514 (Sir Hartley Shawcross); 530, 549, 550, 561, 563 (Auguste Champetier de Ribes); 569 (General Roman Rudenko). 140 ibid, Transcript 432–528. 141 W Korey, An Epitaph for Raphael Lemkin (New York, Jacob Blaustein Institute for the Advancement Human Rights, 2001) 25. 142 The Crime of Genocide, UNGA Res 96(1), UN GAOR, 6th Comm, 1st session, UN Doc A/RES/96(I) (11 December 1946). Lemkin described the process of getting the resolution before the UN General Assembly in ‘Genocide as a Crime under International Law’ (1947) 41 AJIL 145, 148–50. 143 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951). 144 Reservations to the Genocide Convention (Advisory Opinion) (1951) ICJ Reports 15, 23.

216 Katherine O’Byrne and Philippe Sands Nuremberg Indictment. The proceedings raised the profile of the concept of genocide on the international stage. Somewhat paradoxically, its necessity was affirmed by the gap left in the Nuremberg Judgment by linking crimes against humanity to aggressive war or war crimes: acts directed at the extermination of groups during peacetime were excluded, as pointed out by Lemkin in an article for the United Nations Bulletin.145 Again the determination of an individual and his ability to influence others both at Nuremberg and before other bodies on the international stage (albeit in a way that was not always entirely welcome), was critical in the development of international law. The legacy of Nuremberg, and of Lemkin, has been in recognition rather than prevention of genocide. In the intervening period, there have been what have been recognised in law as more genocides (Rwanda, Bosnia, Cambodia, Darfur). While the Nuremberg defendants were not convicted of genocide, others have been. In 1968, Adolf Eichmann was convicted under an Israeli law reflecting the Convention definition of genocide.146 The International Criminal Tribunal for Rwanda (ICTR) in Akayesu147 handed down the first genocide verdict in modern international criminal law, and recognised for the first time that mass rape could amount to genocide. This was followed in the International Criminal Tribunal for the f ormer Yugoslavia (ICTY) by the convictions of Radislav Krstić in 2004 for aiding and abetting genocide148 and of Radovan Karadžić in 2016 for committing genocide as part of a joint criminal enterprise.149 In September 2007, the International Court of Justice in The Hague ruled150 that Serbia had violated the obligation to prevent genocide in Srebrenica. This was the first time that a state has been condemned for violating the Genocide Convention. In July 2010, President Omar al-Bashir of Sudan became the first serving Head of State to be indicted for genocide by the ICC. Of course, genocide has been the subject of critique. The post-Nuremberg emancipation of crimes against humanity from the requirement of a nexus to armed conflict means that any act that meets the definition of genocide is also now likely to constitute a crime against humanity, whether committed in time of war or peace. Arguably this does not create total overlap or make genocide redundant, as the reverse is not true: the specific mens rea for genocide makes it notoriously difficult to establish.151

145 Korey,

Epitaph for Raphael Lemkin (n 141). Attorney-General v Eichmann (1968) 36 ILR 5 (District Court of Jerusalem), para 80. Section 1(b) of the Nazis and Nazi Collaborators (Punishment) Law 1950 4 LSI 154 (Isr) is drafted to reflect the definition in Art 2 of the Genocide Convention, but is slightly wider than that insofar as it also includes destroying or desecrating Jewish religious or cultural assets or values, and inciting hatred of Jews. The Eichmann court observed, however, that those subsections had no relevance to his case: [16]. 147 Prosecutor v Akayesu, Trial Judgment (ICTR-96-4-T), 2 September 1998. This conviction was not disturbed on appeal. 148 Judgment, Prosecutor v Krstić, Appeal Judgment (IT-98-33-A), 19 April 2004. Krstić had been convicted at trial of committing genocide as part of a joint criminal enterprise. However, his appeal against that finding was successful, leading to a substituted conviction on the accessorial basis of aiding and abetting. 149 Prosecutor v Karadžić, Trial Judgment (IT-95-5/18-T), 24 March 2016. 150 Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v Serbia and Montenegro) (2007) ICJ Reports 43. 151 See, eg, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (2008) ICJ Reports 412. 146

The International Military Tribunal at Nuremberg 217 Its characterisation, however, as ‘the crime of crimes’,152 which is singled out for ‘special condemnation’ by international courts,153 regularly leaves victims of atrocities feeling cheated if they can make out only a ‘lesser’ offence, and risks devaluing other international crimes. Ultimately, however, genocide has been absorbed into the canon of international criminal law along with the fundamental principles established at the Nuremberg trial. IV. CONCLUSIONS

Writing about the meaning of Nuremberg as a landmark, Secretary Stimson said: A single landmark of justice and honor does not make a world of peace … But the sins of others do not make the Nazi leaders less guilty, and the importance of Nuremberg lies not in any claim that by itself it clears the board, but rather in the pattern it has set.154

Those words, written 70 years ago, are no less true today. Nuremberg was, from a legal perspective at least, a moment of crystallisation following a period of unspeakable horrors. In the context of the early plans for summary executions, it was notable that the Nuremberg trial occurred at all. Courtroom 600 is rightly regarded as the birthplace of the modern system of international criminal justice: the conception of a novel (if not entirely unprecedented) kind of international court, a fresh legal jurisdiction, and a new way of holding to account some of those responsible for atrocities against both individuals and groups, albeit in a way that was lopsided and left unpunished certain other crimes—including those committed by the Allies. Nuremberg reflects the marriage of pragmatism and principle. It has not altered the reality of war and law; attempts to deliver post-conflict justice remain flawed, insufficient and uneven. What Nuremberg did achieve was to set a framework or expectation that the consequences of conflict could be dealt with in a particular way, according to what are now recognised as fundamental international principles. Those principles have been deployed time and again, and have developed in ways that were not anticipated at the time of their conception. The example set by Nuremberg would stand alone for 50 years before bearing fruit, but would ultimately be taken up in successor tribunals of various forms. The tribunals for the former Yugoslavia, Rwanda, Sierra Leone, Cambodia and Lebanon have drawn on the Nuremberg model in crafting hybrid jurisdictional arrangements.155 In July 1998, more than 150 states adopted the Statute for an International Criminal Court. These tribunals have indicted, convicted and

152

Prosecutor v Kambanda, Judgment and Sentence (ICTR-97-23-S), 4 September 1998, [16]. Krstić (n 148) [36]. 154 Stimson (n 12) 188. 155 ICTY Statute (n 119); ICTR Statute (n 120); UN Security Council, Statute of the Special Court for Sierra Leone, 16 January 2002; United Nations, Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 6 June 2003; UN Security Council, Security Council resolution 1757 (2007) on the establishment of a Special Tribunal for Lebanon, UN Doc S/RES/1757 (30 May 2007). 153

218 Katherine O’Byrne and Philippe Sands sentenced some former and sitting heads of state. There is no doubt, however, that the institutional legacy of Nuremberg remains flawed and unevenly applied. The notion of lopsided justice—a system used by the strong against the weak— is hard to refute. In a statement to the press on 9 August 1945, Robert Jackson said: ‘however unfortunate it may be, there seems no way of doing anything about the crimes against peace or against humanity except that the victors judge the vanquished’.156 That observation, and its legacy, perpetuates today.157 As well as Nuremberg’s contribution as a matter of substantive law, it has been an underpinning theme of this chapter that one of the key features of the Nuremberg trial was its recognition of individuals as subjects, as well as authors, of international law.158 As seen in this chapter, the contributions of certain key individuals, rather than the anonymous acts of states, shaped the definition of crimes and the course of the trial, and ultimately mapped the landscape of international law. As subjects of that law, individuals are given rights and obligated to abide by certain responsibilities, the breach of which results in criminal liability. Nuremberg established that rampant individualism, and the subordination of the group to the whims and totalitarian agenda of one individual, will be a matter of concern to the whole international community. As confirmed by Articles 7 and 8 of the Charter, the individual cannot hide from responsibility for his acts on the grounds that they were authorised by a state or by the order of a superior. The ruling of the Tribunal assisted in chipping away at the invincibility of the state as the supreme being of international law, concluding that ‘[c]rimes against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.159 We might ask whether the concept of individual criminal liability in international law has been taken too far. Over-emphasis on individual criminal liability may obscure egregious acts of states committed by arms of government that cannot be pinned to one particular individual, or which may be more systemic. All three crimes analysed in this chapter illustrate the underlying paradox that, although they are the subjects of individual criminal responsibility, in reality they are generally committed only pursuant to some form of collective deliberation, related to either a ‘widespread and systematic attack’, an ‘intent to destroy, in whole or in part, a group’, or ‘the planning, preparation, initiation or execution of an act of aggression’ of sufficient character, gravity and scale to constitute a manifest violation of the UN Charter.160

156 ‘The Texts of the War Crimes Committee Report and the Jackson Statement’ New York Times (9 August 1945). 157 See, eg, D Zolo, Victors’ Justice: From Nuremberg to Baghdad (London, Verso, 2009); F Barr Lebo, ‘Proposing a new framework: Including China on the crossroads of transitional justice and reconciliation’ (2016) 1 Asian Journal of Comparative Politics 171, 181–82. 158 See, eg, K Parlett, The Individual in the International Legal System: Continuity and Change in International Law (Cambridge, CUP, 2013) ch 4. 159 Nuremberg Judgment (n 6) ‘The Law of the Charter’, available at . 160 See Trainin and Vishinsky (n 45) 79: ‘as distinct from common crimes, international crimes are almost always committed not by one person, but by several or many persons—a group, a band, a clique’.

The International Military Tribunal at Nuremberg 219 This was to some extent reflected at Nuremberg in the specific criminalisation of certain organisations as a means of targeting the whole group and not allowing its members to escape criminal liability. Modern international criminal prosecutions are in practice very often directed at groups of wrongdoers, even if not formally pursuant to a joint criminal enterprise. This is illustrative of the ongoing interplay between the individual and the group in international legal systems: through the Nuremberg trial, international law embraced both liability and protection of both the individual and the group. Nuremberg remains the standard-bearer. It is a place and a process to which those who advocate for individual and collective rights in times of upheaval can point in order to demonstrate that the international community will not—or at least should not—allow impunity and injustice to prevail. In a time of ongoing turmoil on the international stage, safeguarding that legacy, however imperfect, remains important.

220

10 The Early United Nations Advisory Opinions (1948–62) THOMAS D GRANT AND ROWAN NICHOLSON

I. INTRODUCTION

ITZMAURICE, WRITING IN 1952, observed that the advisory practice of the International Court of Justice (ICJ) was rather sparse.1 Though the Court would remain less active in this regard than its predecessor, the Permanent Court of International Justice, it was by no means dormant. By 1962, the Court had received 12 advisory requests and delivered 13 advisory opinions. The jurisprudence that took shape during this period helped consolidate a particular conception of the international community, both as organised around a central institution—the United Nations (UN)—and as expressed through law-making performed by states in multilateral treaties. On three occasions the Court addressed rules that govern participation in international organisations. The first advisory opinion of the Court, on Conditions of Admission of a State to Membership in the United Nations (1948), led it into the deep end of the international politics of the day, the two Cold War blocs having fallen into deadlock over requests by states for admission to the UN. The Court considered the constitution of the UN again in 1950, when a question arose as to the competence of the General Assembly in respect of the admission of a state as a UN member. In 1959, another question about the constitution of an international organisation arose, this time concerning a specialised organisation, the Maritime Consultative Committee of the Inter-Governmental Maritime Consultative Organization. The Maritime Consultative Committee was not a flashpoint of East–West tensions; the Advisory Opinion holds some general interest nevertheless. How the Court treated the then new practice of registering ships in states of convenience, far from the effective ownership of the world’s fleets, presaged a world of evermore fluid transactions and legal relations across borders. We address these three opinions together in Part II of this chapter. The Advisory Opinion on Reparation for Injuries (1949) merits treatment as a landmark in its own right, establishing, as it finally did, that states may constitute an organisation among themselves as an international legal person having a legal character opposable against all states. If Reparation for Injuries affirmed that the 1 GG Fitzmaurice, ‘The United Nations and the Rule of Law’ (1952) 38 Transactions of the Grotius Society 135, 138.

222 Thomas D Grant and Rowan Nicholson UN had the capacity to engage in legal relations at the international level, then Certain Expenses, adopted in 1962—at the opposite end of the period considered in this chapter—affirmed that the UN had the power to secure from its members the funds necessary to impart practical effects to those relations. Both were a logical corollary of the increased willingness of states after World War II to vest broadened competence in a multilateral institution. We address these advisory opinions in Part III. The two advisory opinions on Interpretation of Peace Treaties (1950) illustrate that the search for a dispute settlement apparatus to apply rules and principles of international human rights began almost at the outset of the UN era; it also affirmed the role of the Court as principal judicial organ of the UN and tested the Court as a supervisory mechanism for international arbitration. The opinion as delivered was more qualified than human rights advocates would have liked. The Court here nevertheless affirmed its own role in the international organisation of which it is part, and it made clear that the substantive protections and procedural machinery of the Peace Treaties had a binding character. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) concerned the relations inter partes of the parties to a multilateral convention to which different states have adopted different reservations and different objections. The community-building impetus here was clear: divergent reservations practice does not interrupt the coalescence of general international law rules where these reflect values of central importance to the community. We consider these two advisory opinions in Parts IV and V. This period also saw the first advisory opinions arising out of labour disputes within the UN, disputes ostensibly having little significance to international law as a whole, but which were entwined with international (and national) politics and with legal principles as well. The advisory opinions on Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (1954) and Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO (ILOAT UNESCO Judgments) (1956) addressed concerns that have persisted in various forms to this day, including legal controls over the principal organs of the UN and the standing of individuals in an international dispute settlement apparatus (Part VI). If a community composed of states is to have a central institution, then the ultimate purpose of the community—to protect and enhance the dignity of the individual human being—will be served only if its institution is held to account. II. WHOSE INTERNATIONAL ORGANISATION? THE ADVISORY OPINIONS ON MEMBERSHIP

A. Conditions of Admission of a State to Membership in the United Nations, 28 May 1948 The Court’s first advisory opinion, Conditions of Admission,2 arose out of an impasse between the Western and Eastern blocs into which states were split during the Cold War. 2 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion [1948] ICJ Rep 57.

The Early United Nations Advisory Opinions 223 When the United Nations came into being in 1945, it had 50 original members.3 Article 4(1) of the Charter provides that membership is additionally ‘open to all other 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’. In 1947, applications for membership from five former Axis states came before the Security Council, of which three were supported by the Soviet Union (Bulgaria, Hungary and Romania) and two by the West (Finland and Italy). Poland and the Soviet Union proposed that all five be voted on together, as a package; otherwise, they would oppose the admission of Italy.4 This proposal was rebuffed. The result was that all five applications were rejected, the Soviet-supported ones by majority vote of the Security Council and the Western-supported ones by exercise of the Soviet veto.5 This conduct by the Soviet Union was what the General Assembly had in mind when it requested the Advisory Opinion from the Court. But it is worth noting that the attitudes of each camp were more a function of politics than of consistently held interpretations of Article 4(1). The previous year, it had been the United States that had proposed that the Security Council recommend the admission of all eight applicants under consideration, and the Soviets (along with a Western state, Australia) that had objected that each had to be considered separately.6 The question posed to the Court was this: Is a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph 1 of the said Article? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State?7

At first sight, this looked like a political question. But the Court wasted little time in finding that it was a legal question, and hence one on which the Court was competent to give an advisory opinion under Article 65 of the Statute. The thrust of the question was whether the conditions in Article 4(1) were ‘exhaustive in character’ in the sense that ‘a Member is not legally entitled to make admission dependent’ on other conditions.8 This was a matter of treaty interpretation, and there was nothing

UN Charter, Art 3. of New Members: Special Report of the Security Council, 9 October 1947, UN Doc A/406, 2–3. Further: Y-L Liang, ‘Conditions of Admission of a State to Membership in the United Nations’ (1949) 43 AJIL 288, 289–91; T Franck, ‘Admission of a State to Membership in the United Nations (Advisory Opinions)’, last updated 2006, Max Planck Encyclopedia of Public International Law, www.mpepil.com; T Grant, Admission to the United Nations, Charter Article 4 and the Rise of Universal Organization (Leiden, Brill, 2009) 27–44. 5 Admission of New Members: Special Report of the Security Council, 9 October 1947, UN Doc A/406, 6–7. 6 Liang, ‘Conditions’ (n 4) 289–90. 7 UNGA Res 113B (II), 17 November 1947. 8 Conditions of Admission (n 2) 61. 4 Admission

224 Thomas D Grant and Rowan Nicholson to stop the Court from exercising in regard to the Charter ‘an interpretative function which falls within the normal exercise of its judicial powers’.9 The Court extracted five conditions from Article 4(1), each of which was subject to the judgment of the existing members: that an applicant be a ‘State’; be ‘peaceloving’; accept the obligations of the Charter; be able to carry out these obligations; and be willing to do so.10 It held that these conditions were exhaustive—both necessary and sufficient. To hold otherwise ‘would lead to conferring upon Members an indefinite and practically unlimited power of discretion in the imposition of new conditions’.11 That would be inconsistent with the character of Article 4, ‘which, by reason of the close connexion which it establishes between membership and the observance of the principles and obligations of the Charter, clearly constitutes a legal regulation of the question of the admission of new States’.12 This is not quite as inflexible as it might seem, in that it ‘does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions’.13 But the Court rejected arguments that Article 4(2), which empowered the General Assembly and the Security Council to judge whether the conditions were fulfilled, thereby permitted regard to be had to ‘considerations of political expediency’ by reason of the political responsibilities of those organs.14 The Court went on to find that making consent to admission dependent on the admission of other applicants ‘clearly constitutes a new condition … entirely unconnected with those’ in Article 4(1).15 Each application had to be voted on separately, on its own merits. A dissent by Judges Basdevant, Winiarski, McNair, and Read highlighted a problem with a distinction drawn in the plurality opinion. The plurality of the Court thought that since the question concerned ‘conditions on which a Member “makes its consent dependent”’, it could ‘only relate to the statements made by a Member concerning the vote it proposes to give’ rather than ‘to the reasons which, in the mind of a Member, may prompt its vote’.16 The dissenters noted the strangeness of giving ‘a Member freedom to base its vote upon a certain consideration and at the same time’ forbidding ‘it to invoke that consideration in the discussion preceding the vote’; that interpretation of the Charter ‘would not conduce to that frank exchange of views which is an essential condition of the healthy functioning of an international organization’.17 They held that the conditions in Article 4(1) were necessary but not sufficient; a Member was free to introduce into the discussion ‘a political factor’ that it considered of importance.18 The dissenters had a point. Merely by precluding states from offering extraneous reasons for their votes about admission, without being able to stop them from actually voting in accordance with those reasons, the advisory opinion could not 9

ibid, 61. ibid, 62. 11 ibid, 63. 12 ibid. 13 ibid. 14 ibid, 64. 15 ibid, 65. 16 ibid, 60. 17 ibid, 82–83 (Judges Basdevant, Winiarski, McNair, and Read dissenting). 18 ibid, 90–91 (Judges Basdevant, Winiarski, McNair, and Read dissenting). 10

The Early United Nations Advisory Opinions 225 offer a way out of the impasse. As Pakistan’s representative put it in the General Assembly, ‘the only way to resolve the deadlock was for the permanent members of the Security Council to reach agreement among themselves’.19 Invoking divisions within the Court itself, the Soviet Union denied that an advisory opinion had been adopted. The seven authors of the plurality opinion plus the two who gave concurring opinions (Judges Alvarez and Azevado) outnumbered the six dissenters (those already mentioned plus Judges Zoričić and Krylov). But the Soviet argument was that the concurring opinions ‘differed … on the most important issue of whether political considerations could be invoked in addition to the legal conditions’ in Article 4(1), so the supposed majority was really in the m inority: seven judges to eight.20 This argument was questionable. Judge Azevedo, for instance, whatever reasoning led him to his conclusions, summed them up by saying ‘I agree with the findings of the Court’.21 The General Assembly, in any event, adopted a resolution recommending that the Advisory Opinion be complied with.22 B. Competence of the General Assembly for the Admission of a State to the United Nations, 3 March 1950 In 1949, the General Assembly made a second attempt to escape the impasse by requesting an advisory opinion. Competence of the General Assembly23 concerned the paragraph of the Charter immediately following that considered in the earlier opinion, Article 4(2), according to which the ‘admission of any such State to membership of the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council’.24 The question was whether the admission of a State under Article 4(2) can be effected by a decision of the General Assembly when the Security Council has made no recommendation for admission by reason of the candidate failing to obtain the requisite majority or of the negative vote of a permanent Member.25

Recalling its reasoning in its earlier opinion, the Court held that this was a legal question.26 Admission, it held, requires two steps: ‘a “recommendation” of the Security Council and a “decision” of the General Assembly’; both steps are ‘indispensable’.27 Nor can the General Assembly ‘attribute to a vote of the Security Council the character of a recommendation when the Council itself considers that no such recommendation has been made’.28 The text of Article 4(2) was clear enough to enable the Court to form this view without much discussion. 19

UN Doc A/AC.24/SR.9, 3–5. UN Doc A/AC.24/SR.7, 5–6. 21 Conditions of Admission (n 2) 73 (Judge Azevedo). 22 UNGA Res 197A (III), 8 December 1948. Further Liang, ‘Conditions’ (n 4) 295–98. 23 Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] ICJ Rep 4. 24 UN Charter, Art 4(2). 25 UNGA Res 296A (IV), 22 November 1949. 26 Competence of the General Assembly (n 23) 6–7. 27 ibid, 8. 28 ibid, 10. 20

226 Thomas D Grant and Rowan Nicholson The Court nonetheless went on to make some observations about the roles of the political organs of the United Nations that reinforced its conclusions and may also have wider significance. The ‘Charter does not place the Security Council in a subordinate position’ to the General Assembly but ‘confers upon it “primary responsibility for the maintenance of international peace and security”’.29 Among its powers r elevant to membership, the Security Council has the sole power to reinstate a Member that has been suspended.30 To decide that the General Assembly acting alone could admit a state to membership ‘would almost nullify the role of the Security Council in the exercise of one of the essential functions of the Organization’.31 So the impasse remained. In the end, a way out was provided not by the Court but by a diplomatic bargain that resembled in substance the package deal the Soviet Union had proposed in 1947. In 1955, following receipt of a report from a committee of good offices established for the purpose, the General Assembly requested that the Security Council reconsider 18 applicants for admission.32 Shortly afterwards, both organs voted to admit 16 of these (including those rejected in 1947: Bulgaria, Hungary, Romania, Finland and Italy).33 C. Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, 8 June 1960 Like the earlier opinions, Maritime Safety Committee34 required the Court to interpret a membership provision in a treaty establishing an international organisation, though this time the organisation was the Inter-Governmental Maritime Consultative Organization (which has since been renamed the International Maritime Organization).35 Article 28(a) of the treaty provided: The Maritime Safety Committee shall consist of fourteen Members elected by the Assembly [of the Inter-Governmental Maritime Consultative Organization] from the Members, governments of those nations having an important interest in maritime safety, of which not less than eight shall be the largest ship-owning nations, and the remainder shall be elected so as to ensure adequate representation of Members, governments of other nations with an important interest in maritime safety, such as nations interested in the supply of large numbers of crews or in the carriage of large numbers of berthed and unberthed passengers, and of major geographical areas.36

ibid, 8–9, quoting UN Charter, Art 24. UN Charter, Art 5. 31 Competence of the General Assembly (n 23) 9. 32 UNGA Res 918 (X), 8 December 1955. 33 UNSC Res 109 (1955), 14 December 1955; UNGGA Res 995 (X), 14 December 1955. The two applicants from among the 18 that were excluded were Japan, which was vetoed by the Soviet Union but admitted in 1956, and Mongolia, which was vetoed by the Republic of China (Taiwan) but admitted in 1961. Further: Grant, Admission to the United Nations (n 4) 85–86. 34 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion [1960] ICJ Rep 150. 35 IMCO Assembly Res A.358 (IX) (14 November 1975); IMCO Assembly Res A.371 (X) (9 November 1977). 36 Convention on the Inter-Governmental Maritime Consultative Organization, 6 March 1948, 289 UNTS 48. 30

The Early United Nations Advisory Opinions 227 If the eight ‘largest ship-owning nations’ meant the eight states with the largest tonnage registered to their flags, then they included Liberia and Panama. But Liberia and Panama were flags of convenience: the majority of their registered tonnage was beneficially owned by nationals of other states. The Assembly accepted a proposal by Britain that a separate vote be taken to fill each of the eight places reserved for the largest ship-owning nations and that states be voted on in the order in which they appeared on a list of the states with the largest registered tonnage.37 When the Assembly proceeded to do this, it voted down Liberia and Panama and instead elected the states with the ninth and 10th largest registered tonnage.38 Liberia and Panama objected. The Assembly requested an advisory opinion to say whether the Committee had been ‘constituted in accordance with’ the treaty establishing the Organization.39 This was a straightforward question of treaty interpretation. It raised two problems. The first was whether the Assembly had a discretion not to elect one of the eight largest ship-owning nations. One argument supporting this conclusion was that the word elected in Article 28(a) connoted ‘a notion of choice’ implying ‘an individual judgment on each member to be elected and a free appraisal of the qualifications of that member’.40 Another argument was that ‘having an important interest in maritime safety’ was a distinct qualification for election, taking precedence over the qualification of being among the eight largest ship-owning nations, and that the Assembly had a discretion to choose from among states with that overriding qualification.41 The Court rejected both arguments. If discretion were the ‘supreme rule for the constitution’ of the Committee, that would ‘render superfluous’ most of Article 28(a).42 The reference to election was to be read in light of the mandatory statement that at least eight members ‘shall be’ the largest ship-owning nations.43 So was the requirement of an important interest in maritime safety: being one of the largest ship-owning nations necessarily constituted the required interest.44 The second problem was how the eight largest ship-owning nations were to be identified. Practice and analogies with comparable treaty provisions indicated that the sole test applied was registered tonnage, not the nationality of the beneficial owners, which in any event ‘would be difficult to catalogue, to ascertain and to measure’.45 The relevant practice included the fact that the Assembly had simply elected the states with the largest registered tonnage minus Liberia and Panama; it had not identified eight states by reference to some other calculation.46 The Assembly was divided about how to respond to the Court’s opinion, fearing the effect that invalidating the existing Committee would have on work already done and in progress.47 In the end, it adopted a British–Liberian resolution that 37 Maritime Safety Committee (n 34) 150, 155. Further KR Simmonds, ‘The Constitution of the Maritime Safety Committee of IMCO’ (1963) 12 ICLQ 56, 61–62. 38 ibid, 154–56, 169. 39 ibid, 151. Further Simmonds, ‘Constitution’ (n 37). 40 Maritime Safety Committee (n 34) 158–59. 41 ibid, 159. 42 ibid, 161. 43 ibid, 159. 44 ibid, 160. 45 ibid, 169, further 165–71. 46 ibid. 47 Simmonds, ‘Constitution’ (n 37) 78–9.

228 Thomas D Grant and Rowan Nicholson issolved the existing Committee with an amendment that confirmed the measures d the Committee had taken since being elected in 1959.48 It then adopted a proposal to declare elected the eight states with the largest registered tonnage and to elect afresh the other six members of the Committee provided for by Article 28(a). The result was that Liberia joined the eight, dislodging the Netherlands. The Netherlands in turn was elected as one of the six in place of the United Arab Republic.49 D. Commentary and Assessment The importance of the questions discussed in these opinions may seem to have faded. Maritime Safety Committee, now seldom cited, arose from a dispute that was localised in time and political context. A concern expressed at the time by KR Simmonds, in an article critical of the opinion, was that the ‘Court’s decision to accept without question the exclusiveness of the registered tonnage criterion may … only serve to exacerbate existing high feelings on this matter’.50 The opinion has nonetheless influenced the interpretation of the requirement, codified in the Convention on the Law of the Sea, that there ‘exist a genuine link’ between a ship and the state to whose flag it is registered.51 Simone Borg remarks that it ultimately contributed to a ‘shifting away from attempts to use the genuine link so as to limit reﬂagging of ships to open registries’ towards an emphasis on ‘the need to ensure a genuine link by calling for the adoption of more stringent international norms for safety of ships and vesselsource pollution’.52 The opinion foreshadowed debates about arrangements made by multinational companies to minimise their exposure to domestic taxes and regulations. Just as ships selected Liberia and Panama as flags of convenience, companies shift or attribute activities to convenient jurisdictions. And as in Maritime Safety Committee, international courts and tribunals will sometimes hesitate to look behind the legal form of a transaction to its real economic substance. A contrast might be drawn with a case in which the Court did look behind form. In Nottebohm, it declined to admit an application by Liechtenstein to exercise diplomatic protection over a national, originally German, whose connection to Liechtenstein was tenuous53—Liechtenstein was, as it were, a nationality of convenience. Nottebohm was in fact raised in the pleadings in Maritime Safety Committee: Norway cited the decision for the proposition that a state’s rights could not be allowed to depend entirely on facts that it was within that state’s power to create.54 48

IMCO Assembly Res A.21 (II) (6 April 1961). Simmonds (n 37) 80–81. ibid, 85. 51 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, Art 91(2). 52 S Borg, ‘The Influence of International Case Law on Aspects of International Law Relating to the Conservation of Living Marine Resources Beyond National Jurisdiction’ (2012) 23 Yearbook of International Environmental Law 44, 56 fn 68. 53 Nottebohm (Liechtenstein v Guatemala), Second Phase [1955] ICJ Rep 4. 54 Oral Statement of Mr Seyersted (Norway), Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, ICJ Pleadings 360, 365. Compare Oral Statement of Mr Riphagen (Netherlands), Constitution of the Maritime Safety Committee of the Inter- Governmental Maritime Consultative Organization, ICJ Pleadings 351, 357. 49 50

The Early United Nations Advisory Opinions 229 Equally, the diplomatic impasse out of which the UN admission opinions arose was rooted in the geopolitics of the Cold War. Today, unlike in its early years as a political project of the victors of the Second World War, and especially since the Cold War ended in 1991, the United Nations aspires to universality. And leaving aside the anomaly of the Vatican City and a few contested cases (notably Palestine, Taiwan and Kosovo) universality has been achieved. New states are admitted w ithout much enquiry into whether they meet the conditions identified in Conditions of Admission. Still, the conditions come up occasionally. An argument made by Greece in 1993 against admitting Macedonia was that its name and symbols, which it shared with a wider region, ‘undermines the sovereignty of neighbouring states’.55 Thomas Franck interprets this as an argument that it failed the condition of being ‘peace-loving’.56 It was admitted with the caveat that it be ‘provisionally’ referred to as ‘the former Yugoslav Republic of Macedonia’.57 What about the wider importance of the opinions on membership? Both of the treaty provisions interpreted in the opinions—Article 4 of the Charter and Article 28(a) of the Convention on the Inter-Governmental Maritime Consultative Organization—have been cited to illustrate how the drafters of a treaty may forge a compromise by omitting reference to a disputed point.58 That makes them good examples of how the Court might step in and, through treaty interpretation abstracted from the politics, fill the gaps left by the drafters. As will be seen below with the incomplete Treaty Commissions in Interpretation of Peace Treaties, the Court does not in all cases step in. On one hand, as Franck points out, since the opinions on UN admission did not in the end actually resolve anything, they pose ‘in near-textbook fashion the question of the limits of adjudication in what is essentially a politico-diplomatic dispute’.59 On the other hand, those limits did not prevent the opinions from influencing the law of treaty interpretation. For instance, all three opinions dealt with the role of drafting history. In Maritime Safety Committee, the Court cited Competence of the General Assembly for the proposition that it is only if the natural and ordinary meaning of words leads to ambiguity ‘that resort need be had to other methods of construction’.60 The Court does not seem to have treated Maritime Safety Committee as a case of ambiguity; it apparently thought that the words of Article 28(a) were already clear enough on their own. It nonetheless went on to analyse the drafting history, which corroborated its conclusions: the concern of the drafters had been that the Committee be controlled by the largest ship-owning nations, which were

Letter from Greece to the United Nations, 25 January 1993, UN Doc A/47/877, appendix [10]. Franck, ‘Admission of a State to Membership’ (n 4) § 11. 57 UNSC Res 817 (1993), 7 April 1993; UNGA Res 47/225, 8 April 1993. A sequel to the UN admission controversy played out in NATO, which has its own substantive admission rules and decision- making procedures, about which see Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v Greece) [2011] ICJ Rep 633, 659–61 and Greece, Counter-Memorial, Interim Accord (19 January 2010), [1.5]–[1.6], [5.9]–[5.15], [5.48]–[5.55]. 58 C Brown, ‘The Inherent Powers of International Courts and Tribunals’ (2005) 76 BYIL 195, 203 fn 40. 59 Franck, ‘Admission of a State to Membership’ (n 4) § 7. 60 Maritime Safety Committee (n 34) 159–60. 56

230 Thomas D Grant and Rowan Nicholson originally to be ‘selected’ (the word elected had been substituted at the last moment, seemingly without discussion).61 So in Maritime Safety Committee the Court seems to have assumed that, although it is not necessary to consider the drafting history in a case where words lack ambiguity, it is still permissible. Despite the Court’s reference to Competence, this approach actually departed from, or at least refined, what the Court had said in that earlier opinion. There it had said that if words in their natural and ordinary meaning are ambiguous or lead to an unreasonable result, then, and then only, must the Court, by resort to other methods of interpretation, seek to ascertain what the parties really did mean when they used these words.62

The Court had clarified that if there is no problem with the natural and ordinary meaning, it is not ‘permissible … to resort to travaux préparatoires’.63 It appears, then, that in Maritime Safety Committee the Court took a more flexible view of drafting history than it had taken in Competence. In any event, since the Court used the drafting history merely for corroboration, the opinion was based on the text. Indeed, Maritime Safety Committee is significant because, as Jan Klabbers has observed, the Court essentially took a textual approach rather than one based on the purpose of the drafters. He suggests that a purposive approach would most likely have led to ‘the opposite result’: ‘flag of convenience’ states were ‘not known for their scrupulous adherence to safety standards’, the topic dealt with by the Committee.64 He adds that the opinion is also remarkable in being the only occasion on which the Court suggested that a decision by an international organisation might be invalid until 199665 (when the Court rejected as beyond power a request for an advisory opinion made by the World Health Organization).66 Finally, the opinions raise tangentially a question that is relevant to the next pair of opinions that we will discuss. Klabbers notes that in Conditions of Admission the Court interpreted Article 4(1) as creating an obligation to treat the conditions therein as exhaustive. But does [this obligation] rest upon the organs concerned [the Security Council and General Assembly]? Or rather upon the member states comprising those organs? [T]he first option stresses the separate identity of the organization and its organs, whereas the second seems to relegate the organization to a mere vehicle for its member states.67

The Court a year after Conditions of Admission would deal directly with the separate identity of the United Nations. This would be in the Advisory Opinion on Reparation for Injuries, to which we now turn.

ibid, 165, further 161–65. Emphasis added. Competence of the General Assembly (n 23) 8. Compare Conditions of Admission (n 2) 63; Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Art 32. 63 ibid, 8. 64 J Klabbers, ‘The Life and Times of the Law of International Organizations’ (2001) 70 NJIL 287, 305. 65 ibid. 66 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion Requested by the World Health Organization [1996] ICJ Rep 66. 67 Klabbers, ‘Life and Times’ (n 64) 304. 62

The Early United Nations Advisory Opinions 231 III. THE ORGANISATION’S CAPACITY TO ACT: REPARATION FOR INJURIES AND CERTAIN EXPENSES

A. Reparation for Injuries Suffered in the Service of the United Nations, 11 April 1949 The International Court’s second advisory opinion, Reparation for Injuries,68 arose out of events following the establishment of the state of Israel in the former British mandate of Palestine. On 17 September 1948, Folke Bernadotte, a Swedish diplomat recently appointed as the UN mediator in Palestine, was assassinated by an Israeli paramilitary group, Lehi.69 Colonel André Sérot, a UN observer from France, was also assassinated. The United Nations paid expenses and indemnities to their heirs.70 With a view to claiming reparation from Israel, the General Assembly posed two questions to the Court, of which the first was this: In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him?71

One source of doubt about whether the United Nations could claim reparation was that at that time there was no consensus that international organisations had international legal personality in their own right. The character of its predecessor, the League of Nations, had been unclear.72 That the framers of the Charter had made provision for the legal personality of the United Nations in domestic law,73 while not conclusive as to relations on the international plane, established that personality was possible in principle. Before the opinion was requested, the Secretary-General had said that he had no doubt that the United Nations had the capacity to present claims.74 Nor was the international legal personality of the United Nations disputed in the proceedings or in any of the dissenting opinions.75 In affirming that it did have international legal personality, the Court at last resolved the point and provided the closest thing to an authoritative definition of the concept. Describing the United Nations as ‘an international person’, the Court remarked, is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is ‘a super-State’, whatever that expression may mean. It does not even

68 Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion [1949] ICJ Rep 174. 69 Y-L Liang, ‘Reparation for Injuries Suffered in the Service of the United Nations’ (1949) 43 AJIL 460, 460–61. 70 UN Doc A/674, 7 October 1948. 71 UNGA Res 258 (III), 3 December 1948. 72 Further: JL Brierly, ‘The Covenant and the Charter’ (1946) 23 BYIL 83. 73 UN Charter, Art 104. 74 UN Doc A/674, 7 October 1948, 5. Further on views expressed before the opinion: Liang, ‘Reparation’ (n 69) 461–72. 75 Liang, ‘Reparation’ (n 69) 472.

232 Thomas D Grant and Rowan Nicholson imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.76

Capacity meant ‘capacity to resort to the customary methods recognized by international law for the establishment, the presentation and the settlement of claims’, among them ‘protest, request for an enquiry, negotiation, and request for submission to an arbitral tribunal or to the Court’.77 The Court drew this conclusion from the nature of the functions entrusted to the United Nations, which could not have been carried out ‘if it was devoid of international personality’.78 Of course, to have legal personality does not in itself mean that an entity has standing to submit to a given tribunal or court. There are, if anything, even more international legal persons today—and yet still only limited opportunities for them to submit claims. As we will relate below, the Court would later give opinions touching on access to justice and the accountability of organs from which justice might be sought. The Reparation opinion also holds interest for its consideration of the general opposability of legal personality. The assassinations that had motivated the request for the opinion had occurred after Israel’s declaration of independence on 14 May 1948 but before it had been admitted to the United Nations. The Court dealt with this complication only in brief terms, by observing 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.79

The United Nations thus had international legal personality even relative to non-members. A corollary of the Court’s definition of international legal personality was that it did not imply that the United Nations had the specific right to bring a claim of the sort contemplated. International legal persons ‘are not necessarily identical in their nature or in the extent of their rights’: whereas ‘a State possesses the totality of international rights and duties recognized by international law, the rights and duties’ of the United Nations ‘must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’.80 The Court nevertheless readily found that the United Nations could bring a claim for damage exclusively caused by a breach of a duty owed to it, to its own interests, administration, property, or assets, or to ‘the interests of which it is the guardian’.81 The Court also went further by articulating an entirely new doctrine of functional protection, analogous with the right of states to exercise diplomatic protection over 76

Reparation for Injuries (n 68) 179. ibid, 177. 78 ibid, 179. 79 ibid, 185. 80 ibid, 178, 180. 81 ibid, 180. 77

The Early United Nations Advisory Opinions 233 their nationals. This followed from an ‘examination of the character of the functions entrusted to the Organization and of the nature of the missions of its agents’, who must know that in the performance of their duties they are ‘under the protection of the Organization’.82 Functional protection meant that damage suffered by agents of the United Nations, which were under its protection, could be included in the reparation to which it was entitled.83 That answered the first question that the General Assembly had put to the Court. The second question was how this answer could ‘be reconciled with such rights as may be possessed by the State of which the victim is a national’,84 that is to say, with the established doctrine of diplomatic protection. In the absence of a rule assigning priority either to the state or to the United Nations in bringing an international claim, the Court merely expressed confidence that parties could ‘find solutions inspired by goodwill and common sense’ and that ‘in due course a practice will be developed’.85 A defendant state could not, however, be compelled to make reparation twice for the same damage.86 In the event, Bernadotte’s widow did not press for a claim, and the United Nations claimed against Israel solely for damage suffered to itself from the assassination of Bernadotte. It asked Israel to apologise, to arrest the assassins, and for an indemnity of $54,628.87 Although Israel duly paid the sum and expressed regret, it was not able to apprehend the assassins and considered that without new evidence further efforts were unlikely to succeed. The Secretary-General accepted that this was ‘substantial compliance’.88 B. Certain Expenses of the United Nations, 20 July 1962 Where Reparation for Injuries concerned the legal capacity of the United Nations, Certain Expenses concerned how to give that capacity effect through actions on the ground. What right, if any, did the UN have to obtain funds from its member states to cover expenses its actions incurred?89 Article 17(2) of the Charter provides that the ‘expenses of the Organization shall be borne by the Members as apportioned by the General Assembly’. The General Assembly asked the Court whether certain expenditures that the Assembly had

ibid, 184, further 181–84. As a matter of principle, this entitlement to reparation for injuries suffered by its agents would imply that the organisation can hold legal responsibility for injuries that its agents cause. The Court eventually affirmed that point: Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion [1999] ICJ Rep 62, 89, [66]. 84 UNGA Res 258 (III), 3 December 1948. 85 Reparation for Injuries (n 68) 186. 86 ibid. Compare Articles on Responsibility of States for Internationally Wrongful Acts [2001] 2(2) ILC Ybk 26, Art 46 (Plurality of injured States); commentary to Art 46, [3]–[4] and fn 705. 87 UNGA Res 365 (IV), 1 December 1949; Annual Report of the Secretary-General on the Work of the Organization, 1 July 1949–30 June 1950, UN Doc A/1287, 124–5. 88 ibid, 125. 89 Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion [1962] ICJ Rep 151. 83

234 Thomas D Grant and Rowan Nicholson authorised and sought to apportion really constituted ‘expenses of the Organization’ within Article 17(2).90 The expenditures related to the peacekeeping operation deployed in the Congo,91 in pursuance of resolutions of the General Assembly and Security Council, and to the United Nations Emergency Force deployed in the Middle East at the end of the Suez crisis, in pursuance of General Assembly resolutions. Some states had refused to pay the amounts apportioned to them. In particular, the Soviet Union argued that the operations in the Congo and the Middle East violated the Charter and were therefore not valid expenses.92 Not only allies of the Soviet Union but also many other states—for example, Argentina, Saudi A rabia, and Spain—had paid nothing towards the operations. Since the expenses of the operations amounted to almost two-thirds of its annual budget, this put the United Nations in financial difficulties.93 In December 1961, the acting Secretary-General, U Thant, warned that it would ‘soon be facing imminent bankruptcy’.94 Underlying the advisory request was a dispute with the Soviet Union over the role of the General Assembly in the maintenance of international peace and security. In 1950, in response to the impasse between the Eastern and Western blocs that had paralysed the Security Council, the Assembly adopted the Uniting for Peace resolution asserting that it could make recommendations in regard to the maintenance of international peace and security—including, possibly, recommendations for collective military action.95 The operations in the Congo and the Middle East were novel in that they were supervised by the General Assembly (though they were deployed with Congolese and Egyptian consent).96 The United States—by far the largest contributor to the budget—was, in contrast to the Soviet Union, ‘the strongest advocate of virtually unlimited budgetary powers for the Assembly’.97 The Court said little about this background, merely reaffirming that questions about the Charter were ultimately questions of treaty interpretation, whatever their political significance. The Court’s view was that ‘on its face’ Article 17(2) referred to all expenses, not just ‘regular expenses’.98 But it had been argued that expenses ‘resulting from operations for the maintenance of international peace and security … fall to be dealt with exclusively by the Security Council, and more especially through agreements negotiated in accordance with Article 43’.99 Under Article 43, member

UNGA Res 1731 (XVI), 20 December 1961. Officially what is here called the Congo was, at the time, the Republic of the Congo (capital: Léopoldville) and after multiple name changes is now the Democratic Republic of the Congo (capital: Kinshasa). 92 The Soviet Union pursued this argument in the pleadings: Memorandum of the USSR Government, Certain Expenses (n 89) 270. Further on the pleadings: KR Simmonds, ‘The UN Assessments Advisory Opinion’ (1964) 13 ICLQ 854, 861–69. 93 JF Hogg, ‘Peace-keeping Costs and Charter Obligations: Implications of the International Court of Justice Decision on Certain Expenses of the United Nations’ (1962) 62 Columbia LR 1230, 1231–32. 94 Statement by the Acting Secretary-General at the 899th Meeting of the Fifth Committee, 11 December 1961, UN Doc A/C.5/907, [14]. Further on the political background to the case: Simmonds, ‘Assessments’ (n 92) 855–61. 95 Uniting for Peace, UNGA Res 377 (V), 3 November 1950. 96 Hogg, ‘Peace-keeping Costs and Charter Obligations’ (n 93) 1235. 97 L Gross, ‘Expenses of the United Nations for Peace-keeping Operations: The Advisory Opinion of the International Court of Justice’ (1963) 17 International Organization 1, 8. 98 Certain Expenses (n 89) 161, further 158–62. 99 ibid, 162. 91

The Early United Nations Advisory Opinions 235 states undertake to contribute to the maintenance of peace and security, including by making armed forces and other assistance available in accordance with special agreements. The Court firmly rejected this argument. The Security Council’s responsibility for the maintenance of international peace and security was ‘primary’,100 not ‘exclusive’; although the General Assembly could not authorise coercive action, it could still concern itself with those matters.101 Nor did Article 43 constitute a lex specialis derogating from the general rule in Article 17.102 In fact, the Court went further than it needed to go to answer the question before it: the operations in the Congo and the Middle East had not been authorised under Chapter VII, but even if they had been, the Court said its answer would have been the same. Among other considerations there was this: if such expenses were to be borne solely by states that negotiated agreements under Article 43, that would limit the Security Council’s discretion in negotiating agreements and would leave it ‘impotent in the face of an emergency situation when agreements under Article 43 have not been concluded’.103 The Court did hold that ‘expenditures must be tested by their relationship to the purposes of the United Nations’, in that an expenditure not made for one of those purposes ‘could not be considered an “expense of the Organization”’. It muted the impact of this limitation, however, by observing that when the United Nations ‘takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes …, the presumption is that such action is not ultra vires the Organization’; each organ of the United Nations ‘must, in the first place at least, determine its own jurisdiction’.104 Thus if an ‘action was taken by the wrong organ …, this would not necessarily mean that the expense incurred was not an expense of the Organization’.105 In short, the only allowable expenses are those incurred for the purposes of the United Nations, but if an organ adopts a resolution ostensibly for one of those purposes and the Secretary-General consequently incurs financial obligations, they ‘must be presumed to constitute “expenses of the Organization”’. This was enough to found a conclusion that the expenditures fell under Article 17(2).106 The President of the Court, Winiarski, criticised this approach in a dissenting opinion. His objection was that the resolutions authorising the operations were merely recommendations, not binding decisions, and that it ‘is difficult to see by what process of reasoning recommendations could be held to be binding on States which have not accepted them’ or to be ‘partially binding’ insofar as they imposed financial obligations on such states.107 Despite indicating that it did not need to do so, the Court went on to consider whether the operations were within the power of the General Assembly, along with how the Assembly had dealt with the expenses in its own practice.108 The Court

100

UN Charter, Art 24. Certain Expenses (n 89) 162–65. 102 ibid, 165–67. 103 ibid, 166–67. 104 ibid, 167–68. 105 ibid, 168. 106 ibid, 170. 107 ibid, 234 (President Winiarski dissenting). 108 ibid, 170–79. 101

236 Thomas D Grant and Rowan Nicholson confirmed the conclusion already reached. Some of the judges criticised the Court for having considered the validity of the operations.109 The Assembly had rejected a proposal by France to ask the Court whether the expenses were ‘decided on in conformity with’ the Charter, but the Court denied that the point was beyond its reach.110 Judges Spender and Fitzmaurice also objected to this part of the plurality opinion on the ground that the practice of the General Assembly to which the Court referred did not necessarily reflect an agreement of the parties to the Charter and therefore ought not to be relied upon in interpreting it.111 The Vienna Convention on the Law of Treaties, signed a few years after Certain Expenses, might be cited in support of this criticism: it describes ‘subsequent practice’ as part of the context for interpreting a treaty where it ‘establishes the agreement of the parties regarding its interpretation’.112 Leo Gross pointed out that although the Court ‘refrained from declaring it explicitly, the opinion had the effect of holding that Members of the UN were legally bound to pay the assessments made by the Assembly to defray the costs of the two operations’.113 He speculated that in effect ‘this may well amount to a revision of the Charter’, especially ‘if it is adopted and acted upon by the General Assembly’.114 The Assembly did adopt it and at the same time re-established a working group on budgetary procedures.115 The Soviet Union and its allies, for their part, maintained their position that the operations in the Middle East and the Congo had been ultra vires and thus imposed no financial obligations on members.116 C. Commentary and Assessment Yuen-Li Liang anticipated at the time that Reparation for Injuries, being the first case in which the Court had been ‘asked to pass on the basic question of the s tatus of a general world organization in international law’, ‘should have far-reaching consequences, many of which may not be immediately evident’.117 The same is true of Certain Expenses. The two opinions helped to open new fields of law relating to international organisations. First, the events surrounding Reparation for Injuries foreshadowed later efforts to protect UN agents, not only through functional protection but also through treaties such as the Convention on the Safety of United Nations and Associated Personnel.118 It also established the doctrine of implied powers of international organisations. The Court found that the United Nations ‘must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by 109

eg, ibid, 181 (Judge Spiropoulos declaration), 182, 197 (Judge Spender). ibid, 156–57. 111 ibid, 187–92 (Judge Spender), 201 (Judge Fitzmaurice). Further: Hogg (n 93) 1241–45. 112 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Art 31(3)(b). 113 Gross, ‘Expenses of the United Nations for Peace-keeping Operations’ (n 97) 1. 114 ibid, 27. 115 UNGA Res 1854 A–B (XVII), 19 December 1962. 116 Simmonds, ‘Assessments’ (n 92) 882–88. 117 Liang, ‘Reparation’ (n 69) 477. 118 Convention on the Safety of United Nations and Associated Personnel, 9 December 1994, 2051 UNTS 363. 110

The Early United Nations Advisory Opinions 237 ecessary implication as being essential to the performance of its duties’.119 n This idea finds an echo in the presumption, identified in Certain Expenses, that the United Nations is empowered to perform an action if that action ‘was appropriate for the fulfilment’ of one of the United Nations’ purposes.120 In the Nuclear Weapons opinion for the World Health Organization, the Court cited Reparation for Injuries for the proposition that ‘the necessities of international life may point to the need for organisations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities’.121 This reference to ‘objectives’ accords more closely with the emphasis in Certain Expenses on the purposes of an organisation than with the suggestion in Reparation for Injuries that implied powers must be ‘essential to the performance of its duties’. Secondly, as Pierre d’Argent observes, Reparation for Injuries ‘has become standard reference in any textbook addressing the legal personality, capacity and competences … of international organizations’.122 The focus of the opinion on the United Nations, however, complicates its application to other international organisations. Since the Court’s explanation of why the United Nations’ international personality was ‘objective’ was that it had been brought into being by ‘the vast majority of the members of the international community’,123 it remains debatable whether organisations with more limited membership necessarily also have objective international personality, as distinct from personality solely relative to their own members.124 Thirdly, Certain Expenses has contributed to the debate about the division of powers between organs of the UN. The Court interpreted the exclusive competence of the Security Council narrowly.125 The Court thereby left open the possibility that the General Assembly could make recommendations in specific cases or organise its own peacekeeping operations. In doing so it rejected the view, expressed by President Winiarski, that the intention of those who drafted [the Charter] was clearly to abandon the possibility of useful action rather than to sacrifice the balance of carefully established fields of competence … It may be that the United Nations is sometimes not in a position to undertake action which 119

Reparation for Injuries (n 68) 182. Certain Expenses (n 89) 168. Nuclear Weapons, Advisory Opinion Requested by WHO (n 66) 79. 122 P d’Argent, ‘Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion)’, last updated 2006, MPEPIL, www.mpepil.com, § 11. 123 Reparation for Injuries (n 68) 185. 124 eg, H Schermers and N Blokker, International Institutional Law: Unity within Diversity, 5th edn (Leiden, Nijhoff, 2011) § 1568 restrict ‘objective’ legal personality to organisations ‘of a universal character’; American Law Institute, Restatement of the Law: The Foreign Relations Law of the United States, 3rd edn (St Paul, American Law Institute Publishers, 1987) § 223 comment e, restricts it to those with a ‘substantial’ membership; C Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd edn (Cambridge, CUP 2004) 87, 89–90 takes a more liberal view. The ILC has remarked that although the Court ‘has not identified particular prerequisites, its dicta on the legal personality of international organisations do not appear to set stringent requirements’; in Reparation for Injuries (n 68) and other opinions, it ‘appeared to favour the view’ that an organisation’s personality ‘is an “objective” personality’: Articles on Responsibility of International Organizations [2011] 2 ILC Ybk 2, commentary to Art 2, [8], [9]. The other opinions concerned the World Health Organization: Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion [1980] ICJ Rep 73, 89–90; Nuclear Weapons, Advisory Opinion Requested by WHO (n 66) 8–9. 125 Certain Expenses (n 89) 165. 120 121

238 Thomas D Grant and Rowan Nicholson would be useful for the maintenance of the international peace and security or for one or another of the purposes indicated in Article 1 of the Charter, but that is the way in which the Organization was conceived and brought into being.126

The rejection of President Winiarski’s view placed the fulfilment of the purposes of the United Nations ahead of the ‘balance of … fields of competence’. This was not to be the final word on the matter. The Court would clarify in 1996 that particular organs have their limits: ‘international organizations are subjects of international law which do not, unlike States, possess a general competence … they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them’.127 France warned that the Advisory Opinion might lead to a global legislative power; the Court was imposing on member states an obligation to bring their parliaments to vote for the contributions fixed by the General Assembly and the taxes necessary to pay for them.128 The United States, however, ‘believe[d] referral [of the question of expenses] to the ICJ [was] essential for future of UN as effective instrument [of] world peace’.129 The US actively lobbied non-aligned states (such as India) in the hope of building support for that view in connection with ICJ proceedings.130 Since the United Nations has continued to face difficulties in persuading states to pay their dues, and since it is as often accused of being impotent as of imposing its will on states, France’s concern now seems overblown. Nevertheless, Certain Expenses, along with Reparation for Injuries, helped to make the United Nations more effective and enabled it to remain active despite the impasses of the Cold War. IV. HUMAN RIGHTS, ARBITRATION, AND THE COURT AS ORGAN OF THE UNITED NATIONS: INTERPRETATION OF PEACE TREATIES

A. The Advisory Opinions of 30 March and 18 July 1950 The advisory opinions on Interpretation of Peace Treaties with Bulgaria, H ungary and Romania arose from one of the first major skirmishes of the Cold War concerning human rights. A number of Western Allies had set out ‘grave accusations … against the Governments of Bulgaria and Hungary regarding the suppression of human rights and fundamental freedoms in those countries’.131 Romania was included subsequently. The legal provision that addressed these matters, which was contained mutatis mutandis in all three Peace Treaties, read as follows: Bulgaria shall take all measures necessary to secure to all persons under Bulgarian jurisdiction, without distinction as to race, sex, language or religion, the enjoyment of human rights and of the fundamental freedoms, including freedom of expression, of press and publication, of religious worship, of political opinion and of public meeting. 126

Certain Expenses (n 89) 230 (President Winiarski dissenting). Nuclear Weapons, Advisory Opinion Requested by WHO (n 66) 78. 128 Lettre de la République Française, Certain Expenses (n 89) 134. Further: Gross (n 97) 6. 129 Telegram from US Department of State to US Embassy, New Delhi, 17 November 1961, NND 949637; RG 59; CDF 1960-63; Box 575. 130 ibid. 131 UNGA Res 272 (III), 30 April 1949, [1]. 127

The Early United Nations Advisory Opinions 239 Accusations of breaches of obligations such as these would vex East–West relations for decades. The basic lines of argument were exposed at the time of the Peace Treaties opinion. Albeit with somewhat different protagonists, those lines are still visible today. A group of Western states alleged that a group of other states had breached international human rights obligations, and the latter asserted that, under UN Charter Article 2(7), such matters belong to the protected domain of domestic jurisdiction and thus are not appropriate matters for others to address.132 The East–West divide traversed much the same ground, for example, in the negotiations leading to the Helsinki Final Act133 and in the debates of the late 1970s and early 1980s over the definition of intervention and interference.134 After having sought but failed to discuss the matter of human rights and fundamental freedoms with the governments in Sofia, Budapest and Bucharest, the Allied Governments called upon Bulgaria, Hungary and Romania to ‘join in appointing Commissions pursuant to the provisions of the respective Treaties of Peace for the settlement of dispute concerning the interpretation or execution of these Treaties’.135 The three Eastern bloc states refused to appoint their representatives and maintained that they were under no legal obligation to do so.136 The General Assembly, in a resolution of 22 October 1949,137 asked the Court four questions, which may be summarised as follows: I. whether certain diplomatic exchanges between Bulgaria, Hungary, and Romania and the Western Allies disclosed disputes concerning the human rights provisions of the treaties; II. in the event of an affirmative reply to Question I, whether those three Eastern bloc states were obliged to appoint their representatives to Treaty Commissions called for under the dispute settlement provisions of the Peace Treaties; III. in the event of an affirmative reply to Question II and a failure by one of those states to notify the UN Secretary-General that it had appointed a representative, whether the Secretary-General was authorized to appoint the missing member to the Treaty Commission; IV. in the event of an affirmative reply to Question III, whether a Treaty C ommission composed only of a representative of one party and a third member appointed by the Secretary-General would constitute a Commission within the meaning of the relevant Peace Treaty articles competent to make a definitive and binding decision in settlement of a dispute. 132 See Letter from the Chargé d’Affaires AI of the USSR in the Netherlands to the Registrar of the ICJ, 14 January 1950, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania [1950] ICJ Pleadings 199. 133 A Bloed and P van Dijk, ‘Human Rights and Non-Intervention’ in A Bloed and P van Dijk (eds), Essays on Human Rights in the Helsinki Process (Dordrecht, Nijhoff, 1985) 57, 66–71. See also SB Snyder, Human Rights Activism and the End of the Cold War (Cambridge, CUP, 2011) 15–32. 134 See, eg, Mr Flitan (Romania), First Committee, 3 December 1981, UN Doc A/C.1/36/PV.50, 11, arguing that the definition of ‘interference’ should encompass ‘more subtle forms’, including criticisms by one state of another’s human rights practice. 135 UNGA Res 294 (IV), 22 October 1949, preambular [7]–[8]. 136 ibid, preambular [9]. 137 ibid, as transmitted by the Secretary-General of the United Nations to the President of the International Court of Justice, 31 October 1949.

240 Thomas D Grant and Rowan Nicholson Though the human rights clauses of the peace treaties were the wellspring of the difficulty leading to the advisory request in 1949,138 the Court did not understand the General Assembly to have asked it ‘to deal with the [human rights] charges brought before the General Assembly’.139 Instead, according to the Court, the questions put to the Court related ‘solely to obtaining from the Court certain clarifications of a legal nature regarding the applicability of the procedure for the settlement of disputes by the Commissions provided for’ under the dispute settlement provisions of each of the three Peace Treaties.140 The Court summarily dismissed the argument that Charter Article 2(7) deprived the Court of competence over the matter.141 The Court similarly dismissed the objection that the requested advisory procedure would replace the procedure contemplated under the Peace Treaties; it would not; it would only ‘facilitate it by seeking information for the General Assembly as to its applicability to the circumstances of the present case’.142 The Court gave more consideration to the Eastern bloc objection invoking the Permanent Court’s Advisory Opinion on the Status of Eastern Carelia (1923). The Council of the League of Nations had asked whether the autonomy and self- determination provisions of the Treaty of Peace between Russia and Finland (1920) and related declarations ‘constitute engagements of an international character which place Russia under an obligation to Finland’.143 Though this was an advisory request, the Permanent Court laid emphasis on the contentions of the two states parties to the instruments for which interpretation had been requested. The Permanent Court perceived Finland’s contentions to have been that the provisions were ‘executory obligations’ and that Russia ‘ha[d] not carried out those obligations’,144 contentions which Russia did not accept. Having described the matter in that way, the Permanent Court denied that it was considering the question whether ‘an advisory opinion, if [relating] to matters which form the subject of a pending dispute between nations, should be put to the Court without the consent of the parties’.145 Party consent146 and the ‘integrity of the Court’s judicial function’,147 however, are the principles with which Eastern Carelia came widely, if rather imprecisely, to be associated.148 This is perhaps because the PCIJ went on to say that ‘the opinion which the Court has been 138 139

See UNGA Res 272 (III), 30 April 1949. Interpretation of Peace Treaties (n 132) 70.

141

ibid, 71.

140 ibid. 142 ibid.

143 LN Council Res (21 April 1923), transmitted by the Secretary-General to the Permanent Court of International Justice, 27 April 1923. 144 Status of Eastern Carelia, Advisory Opinion, PCIJ Ser B No 5, 25. 145 ibid, 27. 146 See, eg, Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep 38, 208–09 (Judge Shahabuddeen); Written Submission of Spain, 26 March 1975, Western Sahara, ICJ Pleadings 1975, vol I, 186 [299]. 147 See, eg, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] ICJ Rep 403, 416. 148 See also investment practice, where Eastern Carelia (n 144) has been cited in respect of party consent: eg, Wintershall AG v Argentine Republic, ICSID Case No ARB/04/14 (Nariman, President; Torres Bernárdez and Bernardini, Members), 8 December 2008, [160] n 135; Daimler Financial Services AG v Argentine Republic, ICSID Case No ARB/05/1 (Dupuy, President; Brower and Bello Janeiro, Members), Award, 22 August 2012, [174]; Koza LLP v Turkmenistan, ICSID Case No ARB/11/20 (Townsend, President; Lambrou and Boisson de Chazournes, Members), Jurisdiction, 3 July 2013, [21] fn 21.

The Early United Nations Advisory Opinions 241 requested to give bears on an actual dispute between Finland and Russia’ and then concluded, in view of Russia’s non-participation in the League and explicit exclusion of differences with Finland from League settlement, that it was ‘impossible to give its opinion on a dispute of this kind’.149 Also in view was the difference between Finland and Russia over whether the autonomy provisions were international obligations; the Permanent Court said that this difference was ‘really one of fact’.150 The objections to the Interpretation of Peace Treaties request, then, were that the request in truth called on the Court to settle a dispute between states, not all of which had consented to the jurisdiction of the Court, and that the request was a roundabout way to place the human rights claims of the Western Allies before the Court.151 The Court, unlike its predecessor, did not find the objections convincing. It concluded that ‘the present Request … is solely concerned with the applicability to certain disputes of the procedure for settlement instituted by the Peace Treaties, and it is justifiable to conclude that it in no way touches the merits of those disputes’.152 In reaching that conclusion, the Court observed that an advisory opinion ‘is given not to the States, but to the organ which is entitled to request it’.153 It also observed that, in Eastern Carelia, the Permanent Court had been concerned that the question put to it ‘raised a question of fact which could not be elucidated without hearing both parties’.154 The Western Allies had highlighted this as a central distinction. The United States, for example, when arguing in favour of the e xercise of jurisdiction in 1949–50, placed emphasis on the factual dimension, which had ‘deterred the Court from giving an advisory opinion on the Status of Eastern Carelia’ but which (it said) was absent in the Peace Treaties request.155 On these considerations, the Court accepted that it could address the questions put to it. In reply to Question I, the Court stated that whether ‘there exists an international dispute is a matter for objective determination’.156 Considering the positions of the two groups of states, East and West, the Court concluded: ‘There has … arisen a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations. Confronted with such a situation, the Court must conclude that international disputes have arisen’.157 Having answered Question I in the affirmative, the Court turned to Question II. The General Assembly’s request had asked whether the three states are obliged ‘to carry out the provisions of the articles referred to in Question I, including the provisions for the appointment of their representatives to the Treaty Commissions’.

149

Eastern Carelia (n 144) 27–28. 28. South Africa in its pleadings in Namibia placed weight on the ‘fact’ strand of Eastern Carelia, a stratagem that met with no greater success than Spain’s in Western Sahara four years later. See Written Statement of South Africa, Namibia, ICJ Pleadings 1971 vol I, 448, [44]. 151 See, eg, Telegram from Minister of Foreign Affairs of the People’s Republic of Bulgaria addressed to the President of the Court, 14 January 1950, Interpretation of Peace Treaties (n 132) 196. 152 Interpretation of Peace Treaties (n 132) 72. 153 ibid. 154 ibid. 155 Written Statement of the United States, Interpretation of Peace Treaties (n 132) 135. See also Written Statement of the United Kingdom, Interpretation Peace Treaties (n 132) 169, [7]. 156 Interpretation of Peace Treaties (n 132) 74. 157 ibid. 150 ibid,

242 Thomas D Grant and Rowan Nicholson This form of words suggests that Question II concerned provisions in addition to the appointment provisions. Indeed, Question I referred to the substantive human rights provisions as well. The Court, however, did ‘not think that the General Assembly would have asked it whether Bulgaria, Hungary and Romania are obligated to carry out the articles concerning human rights’.158 The Court observed that those states had not denied that they were subject to the human rights articles.159 The Court thus took the question to concern the dispute settlement articles only. The dispute settlement articles of the Treaties provided that any dispute not settled by direct diplomatic negotiations or reference to the Heads of Mission shall be referred at the request of either party to a Commission, appointment to which the Treaties contained provisions addressing. Those antecedent processes having failed, the door was open to settlement by means of the Treaty Commissions—and the Western Allies took advantage of the opportunity—that is to say, they appointed their Treaty Commissioners. In turn, ‘Bulgaria, Hungary and Romania [were] obligated to carry out the [appointment] provisions’ and appoint their own Treaty Commissioners.160 The Court in these terms answered Question II in the affirmative as well and delivered its Advisory Opinion on Questions I and II on 30 March 1950. Thirty days elapsed after the delivery of the Advisory Opinion on Questions I and II without any of the Eastern bloc states having made an appointment to the Treaty Commissions. The Court then turned to Questions III and IV.161 The US, UK and head of the UN Legal Department made written and oral submissions in this second phase; the Eastern bloc states did not.162 The crux of Question III was this. Articles 36, 40, and 38 of the Peace Treaties (Bulgaria, Hungary and Romania) provided that, in the event that the two parties have ‘failed to agree within a period of one month upon the appointment of the third member [of the Treaty Commission], the Secretary-General may be requested by either party to make the appointment’. The Western states contended that it was open to one party to request the Secretary-General to appoint the missing neutral when the other party had not appointed its own member. Their contention implied that a Commission would be validly constituted in this way—notwithstanding the failure of the respondent state to appoint and the resultant empanelment of only two, not three, Commissioners. The Court did not accept the Western states’ contention. In considering the matter, the Court placed emphasis on the sequence of events identified in the dispute settlement clause: While the text in its literal sense does not completely exclude the possibility of the appointment of the third member before the appointment of both national Commissioners it is nevertheless true that according to the natural and ordinary meaning of the terms it was intended that the appointment of both the national Commissioners should precede that of the third member.163

158

ibid, 76.

159 ibid. 160

ibid, 77. Interpretation of Peace Treaties (n 132) 225. ibid, 225–26. 163 ibid, 227. 161 162

The Early United Nations Advisory Opinions 243 The Court drew further support from ‘the practice of arbitration’, in which ‘this is the normal order followed’.164 Unremarkable in itself, the dispute settlement provision in the Peace Treaties assured that failure of the primary mechanism of appointment would not result in a failure to appoint. Well-drafted dispute settlement clauses contain provisions to similar effect. However, this particular clause addressed only a failure to appoint the third member; it was silent in respect of a failure by one of the parties to appoint its ‘national commissioner’. The Court concluded that ‘the refusal by the Governments of Bulgaria, Hungary and Romania to appoint their own Commissioners has made the constitution of [a Treaty Commission] impossible’.165 In reaching this conclusion, the Court suggested that the Peace Treaties effectively defined the Commission to be a body comprised of three members: ‘A Commission consisting of two members is not the kind of commission for which the Treaties have provided’.166 The dispute settlement clause did not explicitly state that the Commission could come into being only if both parties appointed, but that was the practical effect. States, when crafting arbitral mechanisms in other treaties, in a number of notable instances would take steps to avoid the problem that had arisen from the respondents’ refusal to appoint under the Peace Treaties.167 The Court made clear that its conclusion on this point did not mean that the three states were at liberty not to appoint: they were ‘under an obligation to appoint … and it is clear that refusal to fulfil a treaty obligation involves international responsibility’.168 International responsibility for breach of an obligation does not, however, in itself mean jurisdiction exists to settle a dispute, nor does the rule of effectiveness (ut res magis valeat quam pereat) revise a treaty in favour of creating an effective dispute settlement organ. The Court said, in a phrase to be frequently repeated (in dissents as much as in judgments and awards), it ‘is the duty of the Court to interpret the Treaties, not to revise them’.169 164 ibid. 165

ibid, 228. ibid. The US and UK had noted that in the Lena Goldfields arbitration, an incomplete tribunal had functioned and produced an award. However, that had been a fully constituted tribunal in which one arbitrator refused to participate. It would appear from this practice that non-appearance of an arbitrator who had been duly appointed is to be treated like non-appearance of a party, but a failure to constitute the decision-making body in the first place is a different category of problem. See JJ Veeder, ‘The Lena Goldfields Arbitration: The Historical Roots of Three Ideas’ (1998) 47(4) ICLQ 747, 752–53. 167 See especially UN Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 571, Annex VII, Art 3, for application of which see Philippines v China, PCA Case No 2013-19 (Mensah, President; Cot, Pawlak, Soons and Wolfrum, Members), Jurisdiction and Admissibility, 29 October 2015, [29]–[31]. 168 Interpretation of Peace Treaties, Second Phase (n 132) 228. 169 ibid, 229. See Navigational and Related Rights (Costa Rica v Nicaragua) [2009] ICJ Rep 214, 286 (Judge Skotnikov); Anglo-Iranian Oil Co (United Kingdom v Iran), Preliminary Objections [1952] ICJ Rep 93, 142 (Judge Read dissenting); South West Africa (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections [1962] ICJ Rep 319, 583Judge ad hoc van Wyk dissenting). See also Rights of Nationals of the United States of America in Morocco (France/USA) [1952] ICJ Rep 176, 196. From arbitral practice, see Venezuela US, SRI v Bolivarian Republic of Venezuela, PCA Case No 2013-34 (Tomka, President; Fortier and Kohen, Members), Jurisdiction, 26 July 2016, [59] fn 29 (in respondent’s objection to jurisdiction, which the Tribunal rejected); Wintershall AG v Argentine Republic, ICSID Case No ARB/04/14 (Nariman, President; Torres Bernárdez and Bernardini, Members), 8 December 2008, [84] (‘If this be the duty of an international court, the duty of an ICSID Tribunal is no different’). And from national court practice (in the High Court of Australia), Minister for Immigration and Multicultural Affairs v Respondents (2004) 222 CLR 1, [109] (Judge Kirby). 166

244 Thomas D Grant and Rowan Nicholson B. Commentary and Assessment Some 40 years after Interpretation of Peace Treaties, in the Arbitral Award of 31 July 1989, a contentious case, the Court referred to Interpretation of Peace Treaties to support its interpretation of an Arbitration Agreement between Guinea-Bissau and Senegal to define their maritime boundary.170 In their joint dissenting opinion Judges Aguilar-Mawdsley and Ranjeva invoked the advisory, as distinct from contentious, character of the opinion on which the Court relied, in order to support their view that that opinion furnished no guidance.171 This is a familiar refrain, but it has not prevented the Court from tapping its advisory jurisprudence when helpful. Interpretation of Peace Treaties is one of the advisory opinions that the Court frequently has referred to, including in its judgments in contentious cases. Interpretation of Peace Treaties also, unsurprisingly, has surfaced in the Court’s subsequent advisory practice. This, perhaps, was the fork in the road between Eastern Carelia and its modern approach, under which the Court will not decline to exercise its advisory jurisdiction solely because a state party to a dispute that is relevant to the advisory request has not consented to adjudication.172 Nor will an advisory opinion necessarily be declined because the questions put to the Court require an evaluation and interpretation of facts.173 It is difficult to reconcile Eastern Carelia and Peace Treaties with a single jurisprudence constante;174 jurists indeed have described the later case as a progressive step in international advisory practice,175 the earlier as anomalous or archaic, even a ‘red herring’.176 Reisman described Peace Treaties as making ‘a good deal of far-reaching international constitutional law and international arbitral law’.177 In affirming that it will proceed to give an advisory opinion notwithstanding the presence of an interstate dispute, the Court recalled that its reply to the competent UN organ ‘is only of an advisory character: as such, it has no binding force’. Indeed, the non-binding character of advisory opinions was the premise from which the

170

Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) [1991] ICJ Rep 53, 70. ibid, 127 (Judges Aguilar-Mawdsley and Ranjeva dissenting). 172 See K Keith, ‘The Advisory Jurisdiction of the International Court of Justice: Some Comparative Reflections’ (1996) 17 Australian YBIL 39, 43–44. 173 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, 160–62. 174 For a brave, and not wholly unconvincing, attempt, see G Abi-Saab’s statement (for Egypt) in the two Nuclear Test advisory proceedings: 1 November 1995, CR 1995/23, 19–23. 175 Maurice Kamto, for example, contrasted Eastern Carelia (n 144) with ‘a trend in international law for each multilateral instrument to be viewed as a kind of legal subsystem, with its own dispute settlement procedure’: ILC 2622nd mtg, 17 May 2000 [2000] 1 ILC Ybk 78. Judge Owada (ICJ President at the time) described it as belonging to an earlier stage in the ‘historical evolution of the advisory opinion procedure’: ILC 3100th mtg, 7 July 2011, UN Doc A/CN.4/SR.3100, 10. For Pierre Marie-Dupuy’s account of the change from Eastern Carelia to Interpretation of Peace Treaties fn 132, see Exposé Oral de M Dupuy (for Morocco), 15 May 1975, Western Sahara, ICJ Pleadings 1975 vol IV p 95, 97–98. Compare K Oellers-Frahm, ‘Lawmaking through Advisory Opinions?’ (2011) 12 German LJ 1033, 1050–51 and fn 83. 176 JE Alvarez, ‘Legal Remedies and the United Nations à la Carte Problem’ (1991) 12 Michigan JIL 229, 293. 177 WM Reisman, ‘The Supervisory Jurisdiction of the International Court of Justice: International Arbitration and International Adjudication’ (1996) 258 Hague Recueil 1, 160. 171

The Early United Nations Advisory Opinions 245 Court concluded that the absence of a state’s consent does not prevent the exercise of jurisdiction: It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court’s Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an ‘organ of the United Nations,’ represents its participation in the activities of the Organization, and, in principle, should not be refused.178

The Court might be taken to task here for having given with one hand (affirming advisory jurisdiction) only to have taken away with the other (recalling the nonbinding character of advisory opinions). For states that worried that advisory practice was creeping towards a binding general power (as some did),179 the Court’s observations here perhaps gave comfort, but to have said that advisory opinions are advisory was to state the obvious. The scope of jurisdiction when a concerned state objected, by contrast, in light of the practice of the PCIJ, was a real question. The net result of the advisory opinions in 1950 was to reinforce the Court’s position as an ‘organ of the United Nations’.180 Mindful of that position, only for ‘compelling reasons’ would the Court after Peace Treaties decline to give an opinion in response to a request falling within its jurisdiction.181 The ICJ indeed (from 1946 to 2017) has not declined to give an advisory opinion on discretionary grounds.182 Its refusal to answer the WHO’s request concerning nuclear weapons resulted not from the Court exercising discretion but from an organ making a request that it did not have the competence to make.183 The influence of Peace Treaties can be seen in the ILC’s Model Rules and draft convention on arbitral procedure as well. Draft Article 1, paragraph 1, in the Model Rules (Article 2, paragraph 1, in the draft convention), provided as follows: If, before the constitution of the arbitral tribunal, the parties to an undertaking to arbitrate disagree as to the existence of a dispute, or as to whether the existing dispute is wholly or

178

Peace Treaties, First Phase (n 132) 71. In instructions to the ‘USSR Representative’ [sic] at the ILC, the Politburo in draft Protocol No 68 of March 1949 (whether the Protocol was adopted is not clear from the archive sources made available to the present writers) advised that the USSR representative ‘proceed from the premise that we are not interested in the development of the activity of this Commission, since the purpose of the Anglo-American majority is [inter alia …] with the assistance of this Commission and as a result of its work, to strengthen the role of the International Court and in the process to undermine the influence and significance of the Security Council by making the interpretations and the so-called advisory opinions of the Court on legal issues compulsory’: File 1523 / former Fond 3, op 4, file 986, AP RF; PB Prot No 68 from 17/03–10/05/49, 60; Point 166 (from 9 April 1949); On the instructions [direktivy] for the representative of the USSR in the UN ILC. 180 See on this point A Pellet, ‘Strengthening the Role of the International Court of Justice as the Principal Judicial Organ of the United Nations’ (2004) 3 Law and Practice of International Courts and Tribunals 159, 162. 181 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO, Advisory Opinion [1956] ICJ Rep 77, 86; Immunity from Legal Process (n 83) 78; Wall (n 173); Kosovo (n 147) 416. 182 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion Requested by the General Assembly [1996] ICJ Rep 226, 235. 183 Nuclear Weapons, Advisory Opinion Requested by WHO (n 66) 84. 179

246 Thomas D Grant and Rowan Nicholson partly within the scope of the obligation to go to arbitration, such preliminary question shall, at the request of any of the parties and failing agreement between them upon the adoption of another procedure, be brought before the International Court of Justice for decision by means of its summary procedure.

This provision ‘ha[d] as its aim to address situations like that which was presented in the case of Interpretation of Peace Treaties’184—that is to say, in particular as related to Question I. So too was the concern raised that when ‘account is taken of the considerable number of international arbitration clauses and agreements … negative answers to Questions III and IV would have wide effects’.185 Peace Treaties was not the first time that the ICJ or its predecessor had been asked to consider a disputed arbitration clause, nor would it be the last. We noted Arbitral Award of 31 July 1989 above. Already in 1953, the Ambatielos case called upon the Court to say whether or not a Declaration of 1926, referring to an 1886 Treaty of Commerce and Navigation between Great Britain and Greece, obliged those parties to constitute a Commission of Arbitration to deal with a private claim.186 The Permanent Court, in 1928, had addressed a (somewhat) similar question of interpretation in respect of the GrecoTurkish Agreement of 1926.187 Some ILC members thought it unwise to ‘set up the International Court of Justice as a sort of super-tribunal not subordinate to the agreement of the parties’, but the prevailing opinion accepted, in principle, that the Court, subject to the terms of a jurisdictional instrument, might yet perform a role like that it was asked to (and, partly, did) in Peace Treaties.188 The Court was evidently mindful that its interpretation of the dispute settlement clause in the Peace Treaties might have a ripple effect in arbitral practice. It considered the concern that because ‘of the very large number of existing treaties and other international agreements which contain arbitration clauses similar or analogous to [these] … the basic issue … in the present advisory case is one of general and wide significance’.189 Examining the practice of arbitration, the Court noted that the existence of treaty provisions that do address default of appointment illustrate that states ‘felt the impossibility of remedying this situation simply by way of interpretation’.190 The Court perhaps can be heard (faintly) to have suggested that the Peace Treaties harboured a pathology in their incomplete default provisions,191 but the Court did not accept it to be a proper exercise of the judicial function to ‘remedy … a default

184 Commentary on the Project on Arbitral Procedure Prepared by the Secretariat, 5 May 1953, UN Doc A/CN.4/L.40, 14 (commentary on draft Art 2). 185 Written Statement of the United States, 22 October 1949, Peace Treaties, Second Phase (n 32) 239. 186 Ambatielos (Greece v United Kingdom) [1953] ICJ Rep 10, 26. 187 Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol‚ Article IV), Advisory Opinion, PCIJ Ser B No 16. 188 ILC Model Rules on Arbitral Procedure, General Commentary, Article 1 [1958] 2 ILC Ybk 87, [25]. 189 Written Statement of the United States, 22 October 1949, Peace Treaties, Second Phase (n 132) 215. 190 Peace Treaties, Second Phase (n 132) 229. 191 Reisman addresses Peace Treaties under the title ‘inoperable clauses’: Reisman, ‘Supervisory Jurisdiction’ (n 177) 158–64. On its significance for the role of the ICJ in supervising arbitral jurisdiction, see ibid, 129–45.

The Early United Nations Advisory Opinions 247 for the occurrence of which the Treaties have made no p rovision’.192 Interstate arbitration is ‘still hardly a central feature of international politics’,193 but it is a recurrent phenomenon, and Peace Treaties is the starting point of the ICJ’s involvement with it. Peace Treaties also has joined the standard citation list for the definition of ‘legal dispute’. Permanent Court in Mavrommatis Palestine Concessions already had identified a dispute as ‘a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons’.194 This, the locus classicus on the point, was in 1924—that is, nearly 30 years before Interpretation of Peace Treaties. And, yet, the dispute over the Peace Treaties in the late 1940s exposed unsettled questions as to the juristic character of disputes and their impact on agreed dispute settlement procedures. The Advisory Opinion was a significant step towards settling those questions, and it seems to have been one factor that provoked the ILC to attempt to settle them definitively. Though it would prove premature (as it remains) to invest a general function of determining matters of jurisdiction in the ICJ, the 1950 Advisory Opinion nevertheless further clarified that, whoever decides the matter, the existence of a dispute is an ‘objective determination’.195 The Court has referred to the A dvisory Opinion for this principle, including in numerous contentious proceedings.196 As a requirement that a party instituting proceedings must meet,197 the existence of a dispute would seem an unlikely one not to be satisfied; the M arshall Islands in 2016 gained the distinction of being the first not to satisfy it, though the Court was heavily divided on the point.198 Placing the 1950 Advisory Opinion in its wider setting, this was only three months before the invasion of South Korea by the forces of the North. The Advisory Opinion was adopted on 30 March 1950; the resolution of the Security Council recommending that the member states ‘furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack’ was passed on 27 June 1950, famously in

192

Peace Treaties, Second Phase (n 132) 229–30. Reisman (n 177) 41. 194 Mavrommatis Palestine Concessions (Hellenic Republic v Great Britain), Jurisdiction, PCIJ Ser A, No 2, 11. And see M Waibel, this volume, ch 3. 195 Peace Treaties, First Phase (n 132) 74. 196 See, eg, East Timor (Portugal v Australia) [1995] ICJ Rep 90, 101; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v United States), Preliminary Objections [1998] ICJ Rep 115, 123; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility [2006] ICJ Rep 6, 40; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia, Preliminary Objections [2011] ICJ Reports 70, 84. Making that determination ‘is an integral part of the Court’s judicial function’, and it may require the Court to determine whether a putative legal dispute has already been settled, as it had been in respect of sovereignty over San Andrés, Providencia and Santa Catalina: Territorial and Maritime Dispute (Nicaragua v Colombia), Preliminary Objections [2007] ICJ Rep 833, 874. See also Nuclear Tests (New Zealand v France) [1974] ICJ Rep 457, 476: ‘The dispute brought before it must … continue to exist at the time when the Court makes its decision’. 197 ICJ Statute, Art 36(2). 198 Marshall Islands v Pakistan, Jurisdiction and Admissibility, 5 October 2016, [34]–[55], about which see FI Paddeu, ‘Multilateral Disputes in Bilateral Settings: International Practice Lags behind Theory’ (2017) 76 CLJ 1, 1–2. 193

248 Thomas D Grant and Rowan Nicholson the absence of the Soviet Union.199 Jurists, Kelsen and Stone among them, doubted whether, lacking the participation of one of the permanent members, the Security Council had adopted a binding resolution for an enforcement action.200 Interpretation of Peace Treaties—itself instigated by non-participation of Eastern bloc states— was one of a number of political, military and legal incidents that indicated the entrenchment of opposing Cold War camps. Archive sources indeed suggest the role that the Soviet Union played in directing the main lines of Eastern bloc response to the advisory request: the Soviet Foreign Ministry, unselfconsciously it would seem, advised Stalin that it would be ‘reasonable to advise the Hungarians … to make it clear that … this issue is entirely the subject matter of Hungary’s domestic jurisdiction’.201 Scholars of Soviet approaches to international law described the position taken by Hungary, Bulgaria, and Romania in the advisory proceedings as reflecting the ‘socialist view’ which ‘extends domestic concepts of jurisdiction and of national sovereignty to include even the situations covered by international agreements’.202 The 40 years following Interpretation of Peace Treaties would bring considerable challenges to international adjudication. Nevertheless, the Advisory Opinion made clear that a request concerning a legal question falls within the proper bounds of an advisory opinion, even when the legal question is politically sensitive. That political matters do not in themselves oust the Court’s advisory jurisdiction has been a guiding consideration ever since.203 V. THE COURT AS GENERAL LAW-MAKER: RESERVATIONS TO THE GENOCIDE CONVENTION

A. Reservations to the Genocide Convention, 28 May 1951 Reservations to the Genocide Convention gave the Court another opportunity to express itself on an aspect of the law of treaties.204 The Genocide Convention, signed in 1948, was to enter into force on a date after 20 states had ratified or acceded to it.205 Nothing was said in the treaty about reservations. Eight of the states that

199

UNSC Res 83 (1950), 27 June 1950. DHN Johnson, ‘The Korean Question and the United Nations’ (1956) 26 Nordisk Tidsskirft Int’l Ret 25. 201 RGASPI (Russian State Archive of Social and Political History), Fond 82 (Lichnyi arkhiv VM Molotova [VM Molotov Papers]), op 2 (The activities of VM Molotov as head of the Soviet Foreign Policy), 13 June 1949: 5/5/15 3:40–4:20, 174. 202 K Grzybowski, ‘Socialist Judges in the International Court of Justice’ [1964] Duke Law Journal 536, 541. 203 See, eg, 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, 171 (Judge de Castro). 204 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] ICJ Rep 15. 205 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, Art XIII. 200 See

The Early United Nations Advisory Opinions 249 ratified it—for example, the Philippines and Bulgaria—did so with reservations that other parties to the treaty objected to. All eight reserving states made reservations concerning Article IX, which provided for the compulsory jurisdiction of the ICJ; some of them also made reservations concerning other provisions.206 The question this raised was whether the reserving states were parties to the treaty (and hence counted toward the threshold of 20 for purposes of entry into force).207 The General Assembly asked the Court three questions, of which the first was this: Can the reserving State be regarded as being a party to the [Genocide] Convention while still maintaining its reservation if the reservation is objected to by one or more of the parties to the Convention but not by others?208

The traditional rule, based on the principle that ‘in its treaty relations a State c annot be bound without its consent’, was that ‘no reservation was valid unless it was accepted by all of the contracting parties’. But the Court abandoned this strict approach, noting among other relevant circumstances ‘the very wide degree of participation’ envisaged by the Genocide Convention.209 It was also significant that in a treaty, such as the Genocide Convention, manifestly adopted for a purely humanitarian and civilizing purpose … 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 …. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions.210

This memorable language should not obscure that the Court was treading carefully between competing considerations. On the one hand, it was ‘inconceivable that the contracting parties readily contemplated that an objection to a minor reservation’ would completely exclude the reserving state. On the other hand, they could not ‘have intended to sacrifice the very object of the Convention in favour of a vain desire to secure as many participants as possible’.211 From this, the Court concluded that it is the compatibility of a reservation with the object and purpose of the Convention that must furnish the criterion for the attitude of a State in making the reservation on accession as well as for the appraisal by a State in objecting to the reservation.212

206 Reservations to the Genocide Convention (n 204) 31 (Vice-President Guerrero and Judges McNair, Read, and Hsu Mo dissenting). Further on the background to the opinion: GG Fitzmaurice, ‘Reservations to Multilateral Conventions’ (1953) 2 ICLQ 1; C Redgwell ‘Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties’ (1993) 64 BYIL 245, 247–50. 207 On the practice of the Secretary-General as depository and, in effect, accountant for tabulating treaty ratifications, see S Rosenne, Developments in the Law of Treaties, 1945–1986 (Cambridge, CUP, 1989) 424–36; PTB Kohona ‘Some Notable Developments in the Practice of the UN Secretary-General as Depository of Multilateral Treaties: Reservations and Declarations’ (2005) 99 AJIL 433. 208 UNGA Res 1731 (XVI), 20 December 1961. 209 Reservations to the Genocide Convention (n 204) 21. 210 ibid, 23. 211 ibid, 24. 212 ibid.

250 Thomas D Grant and Rowan Nicholson The second question before the Court proceeded from the premise that a r eserving state could be regarded as a party despite an objection to its reservation. The question was this: what is the effect of the reservation as between the reserving State and: (a) the parties which object to the reservation? (b) those which accept it?213

In reply, the Court reaffirmed the underlying principle of consent. Each objecting state ‘will or will not, on the basis of its individual appraisal within the limits of the criterion of the object and purpose …, consider the reserving State to be a party to the Convention’.214 In other words, a reserving state would be considered to be a party to the Convention relative to states that accepted the reservation, and relative to states that objected to the reservation but still consented to treating the reserving state as a party, but not relative to objecting states that did not so consent. The Court thought that the disadvantages of this relativity were ‘mitigated by the common duty of the contracting states’ to be guided by compatibility with the object and purpose of the treaty.215 The third question before the Court concerned whether it mattered if an objection to a reservation was made by a state that was not yet a party to the treaty.216 The Court held that if an objection was made by a signatory to the treaty that had not yet ratified it, the objection could serve as notice but would have its full legal effect only on ratification; an objection by a state that was entitled to sign or accede but that had not yet done so would have no legal effect at all.217 At the same time as the General Assembly had requested the Advisory Opinion from the Court, it had asked the ILC, which was conducting the study that would lead to the Vienna Convention on the Law of Treaties, to provide a report on reservations and to give priority to the topic.218 In its report to the Assembly, the ILC hewed more closely to the traditional approach and expressed the view that ‘the criterion of the compatibility of a reservation with the objects and purposes of a multilateral convention … is not suitable for application to multilateral conventions in general’.219 But the General Assembly (and on its instructions the Secretary-General) adopted the Court’s view.220 It later extended the approach to ‘all conventions concluded under the auspices of the United Nations which do not contain provisions to the contrary’.221 The ILC came round and incorporated elements of the Court’s

213

UNGA Res 1731 (XVI), 20 December 1961. Reservations to the Genocide Convention (n 204) 26. 215 ibid. 216 UNGA Res 1731 (XVI), 20 December 1961. 217 Reservations to the Genocide Convention (n 204) 27–29. 218 UNGA Res 1731 (XVI), 20 December 1961. 219 Report of the International Law Commission Covering the Work of Its Third Session, 16 May–27 July 1951 [1951] 2 ILC Ybk 123, [24]. Further: Report on Reservations to Multilateral Conventions [1951] 2 ILC Ybk 1. 220 UNGA Res 598 (VI), 12 January 1952. 221 UNGA Res 1452 B (XIV), 7 December 1959, [1]. 214

The Early United Nations Advisory Opinions 251 view into the Vienna Convention, which was signed in 1969 and came into force in 1980.222 In particular, under Article 19(c), a state may not make a reservation that ‘is incompatible with the object and purpose of the treaty’. Note that, according to both the Court and the Vienna Convention, this rule applies only where a treaty does not already make express provision for the effect of reservations. The ILC was not alone in its reluctance to abandon the traditional approach. In a joint dissenting opinion, Vice-President Guerrero and Judges McNair, Read, and Hsu Mo denied that there was a new test of compatibility with the object and purpose of the treaty. In the dissenting judges’ view, without the consent of all other parties, a reserving state could not become a party. The dissenters concluded ‘that the parties entered into the Convention on the basis of the existing law and practice’ and saw no reason to ‘impute to them the intention to adopt a new and different rule’.223 They warned that the test of compatibility with object and purpose would be difficult to apply and would invite more states to adopt reservations.224 The ILC, 60 years later, remarked that ‘international jurisprudence [does not] enable us to define it’, and thought the ‘helpful hints’ as to the meaning of the expression ‘object and purpose’ still to be those found in Reservations.225

B. Commentary and Assessment Writers at the time, Fitzmaurice among them, shared the dissenting judges’ apprehension that Reservations would set off a chain reaction—of reservations.226 It would be going too far to say that subsequent practice in respect of reservations is attributable to the Advisory Opinion alone, but reservations there were and in significant number. Reservations to the Genocide Convention would be central to the debate about reservations to human rights treaties in general that peaked in the 1990s.227 The Court itself returned to the question of reservations to the Genocide Convention in 1999. It dismissed the Legality of Use of Force cases brought against Spain and the United states by the Federal Republic of Yugoslavia (Serbia and Montenegro) on the ground that the respondents had made reservations to the dispute settlement clause, Article IX228 (a provision that Fitzmaurice, ‘obviously inspired by the cold

222

Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Arts 19–23. Reservations to the Genocide Convention (n 204) 44 (Vice-President Guerrero and Judges McNair, Read, and Hsu Mo dissenting). 224 ibid, 47 (Vice-President Guerrero and Judges McNair, Read, and Hsu Mo dissenting). 225 ILC Guide to Practice on Reservations to Treaties, ILC 63rd session (2011), UN Doc A/66/10/ Add.1, 34, 355 (commentary to § 3.1.5, [7]). 226 Fitzmaurice, ‘Reservations’ (n 206). 227 See further Y Tyagi ‘The Conflict of Law and Policy on Reservations to Human Rights Treaties’ (2000) 71 BYIL 181. 228 Legality of Use of Force (Federal Republic of Yugoslavia v Spain), Provisional Measures [1999] ICJ Rep 761, 772; Legality of Use of Force (Federal Republic of Yugoslavia v United States), Provisional Measures [1999] ICJ Rep 916, 923–24. 223

252 Thomas D Grant and Rowan Nicholson war debate’,229 thought incapable of reservation).230 Similarly, in Armed Activities on the Territory of the Congo, in 2006, it accepted that Rwanda’s reservation to Article IX was compatible with the object and purpose of the Convention.231 The question of reservations to another human rights treaty, the International Covenant on Civil and Political Rights,232 was considered by the United Nations Human Rights Committee in a general comment in 1994.233 It held that ‘the object and purpose test … governs the matter of interpretation and acceptability of reservations’ and gave a number of examples of reservations that would fail the test.234 These included reservations to provisions that reflect customary norms binding on states regardless of the treaty; reservations ‘denying peoples the right to determine their own political status and to pursue their economic, social and cultural development’; and reservations to the obligation to respect rights on a non-discriminatory basis.235 The Committee also affirmed that the ‘normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for the reserving party’ but that it ‘will be operative for the reserving party without benefit of the reservation’.236 The European Court of Human Rights has taken the same view of the European Convention of Human Rights237 (though in other respects the European Convention makes express provision for the effect of reservations).238 Though an exercise of advisory jurisdiction, Reservations to the Genocide Convention came to influence the International Law Commission, the drafters of the Vienna Convention, and decisions by other international courts. Fitzmaurice said that the traditional rule on reservations had had ‘almost the entire weight of previous international authority behind it’.239 This ignores the substantially different practice of Latin American states, to which the Court referred, but, even considering that regional exception to the ‘weight of … authority’, the influence of the opinion is remarkable. Insofar as the Court articulated a new approach to reservations that departed from the traditional rule, it was engaging in what is sometimes called ‘the progressive development of international law’—a term that the General Assembly used in requesting the Advisory Opinion, albeit in the part of the resolution addressed to the Commission rather than to the Court.240 Hersch Lauterpacht described the Advisory Opinion as judicial legislation.241

229 ILC Guide to Practice on Reservations to Treaties, ILC 63rd session (2011), UN Doc A/66/10/ Add.1, 34, 388 (commentary to § 3.1.5.7, [1]). 230 GG Fitzmaurice, Report on the Law of Treaties, 14 March 1956 [1956] 1 ILC Ybk 104, 127. 231 Congo v Rwanda (n 196) 32–33. 232 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 1. 233 CCPR General Comment No 24: Issues Relating to Reservations, UN Doc CCPR/C/21/Rev.1/ Add.6. 234 ibid, [6]. 235 ibid, [8]–[11]. 236 ibid, [18]. 237 Belilos v Switzerland, ECtHR App No 10328/83, 29 April 1988, [60]. 238 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5, Art 57. 239 Fitzmaurice, ‘Reservations’ (n 206) 11. 240 UNGA Res 1731 (XVI), 20 December 1961. 241 H Lauterpacht, The Development of International Law by the International Court (Cambridge, CUP, 1958) 189–90.

The Early United Nations Advisory Opinions 253 VI. HOLDING INTERNATIONAL ORGANS TO ACCOUNT: EFFECT OF AWARDS OF COMPENSATION (UNAT) AND JUDGMENTS OF THE ADMINISTRATIVE TRIBUNAL OF THE ILO UPON COMPLAINTS MADE AGAINST UNESCO

Unsurprisingly, an organisation with the personnel, budget, activities and politics of the United Nations encountered questions about the interpretation and application of its own rules. As we already have related, the earliest advisory opinions of the ICJ addressed basic questions about how the UN is constituted (Conditions of Admission) and about its character as a legal person (Reparation for Injuries). Also in the first decade of its operation, the ICJ addressed questions arising out of disputes between the Organization (or one of its specialised agencies) and its personnel. The disputes themselves, at first blush, were matters that might arise in any large bureaucracy—allegations of unfair dismissal and unfair refusal to renew contracts of employment. On further inspection, the questions posed to the Court went to fundamental aspects of international organisation and international law, including equality of parties in legal proceedings, accountability and judicial independence, separation of powers within the UN, and the relation between legal responsibility of the organisation and legal responsibility of the member states. The present section will briefly summarise the questions and holdings in the advisory opinions on Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (1954) and Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO (1956). We then will assess the wider significance of these early landmarks in the Court’s treatment of intramural matters of the system of which it is ‘the principal judicial organ’. A. Effect of Awards of Compensation, 13 July 1954 Controversies over financial contributions to the UN have surfaced from time to time since early in the UN era. A major early episode erupted out of concerns in the United States that persons with communist sympathies had infiltrated the UN civil service. Having intensified scrutiny of its own civil service personnel, the United States in 1953 brought US nationals employed by the UN under its Civil Service Commission program of loyalty screening.242 A number of UN personnel of US nationality were then dismissed from UN service. Ten dismissed personnel brought 11 cases before the Administrative Tribunal of the United Nations (UNAT). Not all resulted in compensatory awards in favour of the dismissed personnel,243 but six did, which equated to favourable judgments for five out of 10 claimants, requiring

242 See LRY Storrs, ‘McCarthyism and the Second Red Scare’ in Oxford Encyclopedia of American History (Oxford, OUP, 2015). 243 See, eg, Judgment No 26 (Case No 34: Marjorie L Zap v Secretary-General of the United Nations), 21 August 1953; Judgment No 46 (Case No 53: Lyman Cromwell White v Secretary-General of the United Nations) (Bastid, President; Lord Crook, Vice-President; Petrén, Vice-President; Loutfi and Abdoh, alternates), 11 December 1953.

254 Thomas D Grant and Rowan Nicholson an appropriation by the General Assembly of $179,420.244 To give one example, Jane Reed, a member of the Secretariat Library staff, appeared as a witness before the Internal Security Sub-Committee of the US Senate (which seems to have been in a competitive posture toward the US House Un-American Activities Committee). Ms Reed had invoked the privilege under the Fifth Amendment to the US Constitution and refused to reply to certain questions that the Sub-Committee had posed. This was on 15 October 1952. The Secretary-General of the United Nations told her that ‘he was very much concerned about this matter’ and placed her on leave on 22 October 1952. The Secretary-General on 1 December told Ms Reed that he would terminate her employment if she did not waive her Fifth Amendment privilege and return to testify to the US Senate Sub-Committee. She refused. The SecretaryGeneral terminated Ms Reed’s employment on 5 December. She brought a claim for compensation before UNAT, which resulted in an award of money damages.245 A public outcry ensued in the United States in opposition to financing the General Assembly appropriations required to satisfy the UNAT awards. Pressure was brought to bear at the UN to refuse to satisfy the awards. The General Assembly on 9 December 1953 presented the following questions to the ICJ for an advisory opinion: (1) Having regard to the Statute of the United Nations Administrative Tribunal and to any other relevant instruments and to the relevant records, has the General Assembly the right on any grounds to refuse to give effect to an award of compensation made by that Tribunal in favour of a staff member of the United Nations whose contract of service has been terminated without his assent? (2) If the answer given by the Court to question (1) is in the affirmative, what are the principal grounds upon which the General Assembly could lawfully exercise such a right?

This, then, was not a call to review the UNAT awards. There was, in any event, no provision for appeal or review in the UNAT Statute. The request instead concerned the powers of one of the principal organs in respect of a dispute settlement mechanism that that organ had itself constituted. The Court answered the first question categorically in the negative: ‘the General Assembly has not the right on any grounds to refuse to give effect to an award of compensation’ such as that in the UNAT judgments.246 The second question accordingly did not call for consideration. The Advisory Opinion provoked further objection in the United States. A Joint Resolution of the US House and Senate (Resolution 262) expressed the sense of Congress that no part of the awards should be settled from funds provided by the United States.247 This in turn spurred the United States to call for a judicial review procedure of UNAT awards. John Foster Dulles, the Secretary of State, did affirm that

244 The sum was given in UNGA Res 785 A (VIII), 9 December 1953, preambular [1], by which the advisory request was made. 245 Judgment No 37 (Case No 45: Jane Reed v Secretary-General), 21 August 1953. 246 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion [1954] ICJ Rep 47, 62. 247 Adopted 10 August 1954 (House); 20 August 1954 (Senate), for which see Congressional Record, vol 100, part II, 13949, 15386.

The Early United Nations Advisory Opinions 255 the United States would, owing to ‘our traditional respect [for] judicial opinions … abide by [the] Court’s finding despite our sharp disagreement’.248 A certain degree of damage nevertheless appears to have been done on the US domestic scene to the prestige of the Organization. B. ILOAT UNESCO Judgments, 23 October 1956 A further advisory opinion arose out of much the same political circumstances. Both chambers of the United States legislative branch having set up loyalty screening procedures, as noted above, the executive branch did the same. Four US nationals employed by UNESCO found themselves called to testify to the International Organizations Employees Loyalty Board of the United States Civil Service Commission.249 Mr Peter Duberg, a representative example of the four UNESCO employees, refused to appear before the Board. Having informed the Director-General of UNESCO on 13 July 1954 of his refusal, Mr Duberg was informed by letter of 13 August 1954 that his appointment as a UNESCO employee would not be renewed.250 Mr Duberg sought compensation from UNESCO before the Administrative Tribunal of the International Labour Organization (ILOAT). ILOAT found that UNESCO’s decision should be rescinded and declared that that decision ‘constitutes an abuse of rights’. ILOAT awarded $15,500 and other allowances to Duberg in the event UNESCO did not renew his appointment.251 Article II, paragraph 5, of the Statute of ILOAT provided (and still provides) that the Tribunal has competence to hear certain complaints from personnel of an international organisation other than the ILO, where the organisation has declared its recognition of the jurisdiction of the ILOAT for that purpose. Article XII of the ILOAT Statute as it was in 1956 provided that an organisation having declared such recognition may submit certain questions of the validity of an ILOAT decision to the ICJ for an advisory opinion, that opinion to be binding. The questions must concern either (or both) a challenge to the ILOAT’s jurisdiction or the contention that the ILOAT’s decision ‘is vitiated by a fundamental fault in procedure’. UNESCO, which recognised ILOAT jurisdiction in accordance with Article II, paragraph 5, invoked Article XII, in effect for the purpose of challenging the ILOAT judgment in 248 Secretary of State to Certain Diplomatic Missions, 11 December 1954, reprinted in Foreign elations of the United States, 1952–1954, vol III (United Nations Affairs) (Office of the Historian, US R Department of State) 410–11. 249 Interestingly, the Department of State officers who fleshed out the operating practice of the Loyalty Board identified UNESCO as an example of the specialised agencies upon which the board should focus. They also recognised—as would the Court (ILOAT UNESCO Judgments [1956] ICJ Rep 77, 92)—that applicants for employment would have no standing to complain to the tribunals but that ‘in taking action against an employee the Secretary General of an international organisation had to consider decisions reached by administrative tribunals … and in some instances he was bound by them’: Memorandum by William L Franklin (Office of Security), Subject: Transmission of Information under Executive Orders 10422 and 10459 by the Civil Service Commission’s International Organizations Employees Loyalty Board, 11 August 1953, reprinted in Foreign Relations of the United States, 1952–1954, vol III (United Nations Affairs) (Office of the Historian, US Department of State) document 127. 250 ILOAT UNESCO Judgments (n 250) 81–82. 251 In re Duberg, ILOAT, Judgment No 17, 26 April 1955.

256 Thomas D Grant and Rowan Nicholson the Duberg case and the other three American UNESCO employee cases. UNESCO contended that ILOAT had exceeded its jurisdiction; it did not contend that ILOAT’s judgments were ‘vitiated by a fundamental fault in procedure’. The ICJ noted that Article XII of the ILOAT Statute, in establishing the binding effect of an advisory opinion on the requesting organ, ‘goes beyond the scope attributed by the Charter and by the Statute of the Court to an Advisory Opinion’.252 According to the Court, this extension of the opinion’s effect ‘provides no reason why the Request for an Opinion should not be complied with’.253 That was not the end of the matter, however. Considering the purpose for which UNESCO requested the opinion, a problem arose. UNESCO requested the opinion in order to challenge four Judgments of ILOAT in favour of four UNESCO officials. As reflected in the written submissions, certain member states wished to overturn, nullify or otherwise avoid the results of those judgments. Notwithstanding formal qualifications to distinguish the advisory proceedings from an appeal, the Court could not avoid the observation that the ‘advisory procedure thus brought into being appears as serving, in a way, the object of an appeal’.254 Moreover, as the Court acknowledged, Article XII envisaged advisory proceedings as a substitute for contentious proceedings for the reason that the latter are open only to states, and so a contentious case between an international organisation and an individual would have doubly failed.255 The problem was that placing the matter under advisory procedure still left one party out. Articles 66 and 67 of the Court’s Statute provide for states and international organisations to participate in advisory proceedings, not for individuals. The particular terms of UNESCO’s consent to ILOAT jurisdiction and to the possibility of advisory recourse to the ICJ did nothing to remedy the omission. As the Court observed, UNESCO, ‘in challenging the four Judgments and applying to the Court … availed itself of a legal remedy which was open to it alone’.256 The individual claimant, whose rights under the ILOAT Judgment the judgment debtor now challenged, had no independent standing before the Court. Suggesting a certain anxiety about the matter, the Court repeatedly offered assurances that the problem was not a problem at all. The Court said that the use to which the Advisory Opinion would be put under ILOAT Statute Article XII ‘in no wise affects the way in which the Court functions’ or its reasoning;257 it said that ‘the inequality … does not in fact constitute an inequality before the Court’.258 The (supposed) balm for the inequality of the parties was a procedural sleight of hand. The Court denied that it was changing the way it conducted its proceedings (‘the inequality … does not affect the manner in which the Court undertakes the examination’), but it lay emphasis on the fact that UNESCO transmitted to the Court supplementary observations ‘formulated on behalf of the persons in whose 252

ILOAT UNESCO Judgments (n 250) 84. The Court since has made clear that, when agreed, binding effects can be attributed to an advisory opinion in respect of a State as well: Immunity from Legal Process (n 83) 77, [25]. 254 ibid, 84. 255 ibid, 85. 256 ibid. 257 ibid, 84. 258 ibid, 85. 253 ibid.

The Early United Nations Advisory Opinions 257 favour [the] Judgments … were given’.259 In this way—via the organisation that was now seeking to undermine their earlier success in proceedings against that organisation—the individual claimants were said to enjoy all due procedural protection. Judge Córdova, dissenting, fairly described this as a ‘very unusual procedure’.260 He took it to be unacceptable that the individual parties ‘had to depend upon the goodwill of their opponents to act as an intermediary for the presentation of their views’.261 He would have declared the Court incompetent to give the opinion.262 In short, speaking from behind a screen is not the same thing as speaking face to face. The point would resurface from time to time and, for a time, it occasioned no great disquiet.263 However, as will be seen below, it eventually presaged the end of ILOAT Article XII and the form of advisory recourse that provision enabled. C. Commentary and Assessment Effect of Awards of Compensation and ILOAT UNESCO Judgments, quite apart from the fraught politics surrounding them, would hold continuing interest for their legal content. Particular attention was drawn to Effects of Awards during discussions at the ILC in connection with the draft Articles on Responsibility of International Organizations. Alain Pellet proposed that, from the Advisory Opinion, it ‘followed that international organizations [are] legally obliged to discharge their financial obligations arising in the context of reparation and that member States had no choice but to enable them to do so’.264 This was in reference to the Advisory Opinion, where the Court had said that ‘the assignment of the budgetary function to the General Assembly cannot be regarded as conferring upon it the right to refuse to give effect to the obligation arising out of the award of the Administrative Tribunal’265 and that the ‘General Assembly has not the right on any grounds to refuse to give effect to [such] an award’.266 ILC members agreed that the risk that an international organisation would lack (or be deprived of) the resources to satisfy its obligations presents a problem; they had difficulty agreeing to a solution.267 Nolte saw Effect of Awards of Compensation as concerning one constitutive treaty (the UN Charter) and thus as saying little about general international law. As such, it did not, in his view, ‘postulate an obligation on the part of the Member States … but only on the part of the General Assembly’.268 It had to do with a ‘special case of the effects of a final judgment within a c onstitutional

259

ibid, 80. ibid, 166. 261 ibid. 262 ibid, 168. 263 See Review of Judgment No 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] ICJ Rep 166, 172. 264 A Pellet, ILC 2935th mtg, 12 July 2007 [2007] 1 ILC Ybk 145 [76]. 265 Effect of Awards (n 246) 59. 266 ibid, 62. 267 Pellet (n 264) [70]. 268 G Nolte, ILC 2935th mtg, 12 July 2007, [2007] 1 ILC Ybk 159 [50]. 260

258 Thomas D Grant and Rowan Nicholson system’, but not the general system of international law.269 Effect of Awards of Compensation in light of these divergent views can be seen as an early page in the search for a solution to the problem of responsibility of organisations constituted under multilateral treaties—and, in particular, the problem of giving their responsibility practical effect.270 Article 40, paragraph 2, of the Articles as eventually adopted provides: The members of a responsible international organization shall take all the appropriate measures that may be required by the rules of the organization in order to enable the organization to fulfil its obligations under this Chapter.271

The ILC Commentary added: While the rules of the organization do not necessarily deal with the matter expressly, an obligation for members to finance the organization as part of the general duty to cooperate with the organization may be implied under the relevant rules.272

The Commentary referred to Fitzmaurice’s separate opinion in Certain Expenses in support of the (possible) ‘general duty’.273 The Commentary thus suggested, though not with much conviction, that the obligations of member states for giving an organisation the funds to satisfy its debts might have something to do with rules outside those of the organisation. The matter in the main is contained within each organisation’s particular legal framework. Distinct from the question of legal responsibility of member states for the finances of and other conduct of an international organisation, there is a question of mechanisms to hold an international organisation to account. Effect of Awards of Compensation by no means imposed a general international law obligation on member states. But it did amount to an early, if halting, step towards accountability of international organisations.274 It is true that the Court drew attention to the power of the General Assembly to revoke the Statute that gave UNAT the power to adopt awards binding on the General Assembly.275 Such a power of revocation would seem to diminish, not enhance, accountability. At the same time, in drawing attention to this power, the Court dismissed the contention that the Assembly could not have conferred such power on a tribunal;276 it noted, by domestic law analogy, that national legislatures ‘create courts with the capacity to render decisions legally binding on the legislatures which brought them into being’.277 Moreover, the Court

269

ibid (emphasis added). JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry (International Tin Council Case) (1990) 81 ILR 670, 678–80 (Lord Templeman), 683–84 (Lord Griffiths). 271 Articles on Responsibility of International Organizations [2011] 2 ILC Ybk 2, Art 40 (emphasis added). 272 ibid, commentary to Art 4, [5]. 273 Certain Expenses (n 89) 208 (Judge Fitzmaurice). 274 Klabbers notes that the Court’s analysis of its role in judicial review of the General Assembly’s conduct was scanty: J Klabbers, ‘Checks and Balances in the Law of International Organizations’ (2007) 13 Ius Gentium 141, 160. 275 Effect of Awards (n 246) 56. 276 The Court referred in this connection to Reparation for Injuries (n 68) 182 (‘the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication’). See Effect of Awards (n 246) 56. 277 Effect of Awards (n 246) 61. 270 Compare

The Early United Nations Advisory Opinions 259 expressed the opinion that, if the General Assembly ever were to change the UNAT Statute, for example by setting up an appellate instance, ‘the General Assembly itself, in view of its composition and functions, could hardly act as a judicial organ … all the more so as one party to the disputes is the United Nations Organization itself’.278 This was a directive (or at least a suggestion) to the legislator: feel free to adopt a different procedure, but you cannot be your own judge. The Court here can be heard to have affirmed judicial independence as a principle applicable within the constellation of UN rules and procedures. It was by General Assembly act that ‘an independent and truly judicial body’ had been constituted.279 Taking the Advisory Opinion as a whole, it appears that the Court would not accept any approach that lacked those properties. As to the role of the ICJ in the wider institutional framework, the 1950s advisory opinions might have invited further recourse to the Court for settlement of differences relating to tribunal awards. Indeed, administrative tribunal cases did lead to a succession of advisory proceedings,280 but by no means did a floodgate open. Other institutions that might have provided for recourse to the ICJ did not do so. The World Bank, for example, when establishing its own Administrative Tribunal, considered the practice of the UN and ILO tribunals but on several grounds declined to include a mechanism for ICJ advisory opinions. For one thing, ‘the mechanism itself has been criticised by the ICJ and a similar attempt at the Bank to channel cases to the ICJ may present similar difficulties’. For another, in the Bank’s view, ‘there appears to be no compelling reason to have a stage beyond a properly constituted tribunal’.281 From the early administrative tribunal advisory opinions, one thus can trace still-live questions of international law. The question remains unsettled how to hold an international organisation to account. And, so too, the question continues to concern states and jurists whether—and if so to what extent and in what form— agreed dispute settlement procedures need higher instances as a control.282 For the UN administrative system, at any rate, the question whether to have such a control was, at length, addressed in the affirmative. The General Assembly—in 2007–8, which is to say over half a century after John Foster Dulles had suggested it—abolished UNAT and replaced it with a two-tier system. A UN Dispute Tribunal now deals with staff cases, and a UN Appeals Tribunal receives appeals from its decisions,283 which are binding upon the parties.284 278

ibid, 56. ibid, 53. Review of Judgment No 158 [1973] ICJ Rep 166; Review of Judgment No 273 of the United Nations Administrative Tribunal, Advisory Opinion [1982] ICJ Rep 325; Review of Judgment No 333 of the United Nations Administrative Tribunal, Advisory Opinion [1987] ICJ Rep 18; Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion [2012] ICJ Rep 10. 281 Memorandum relating to draft Statute for Bank Administrative Tribunal, 1 November 1979, 5. From World Bank Group Archives, Administrative Tribunal—Correspondence 01; Folder ID: 1201400; ISAD(G) Reference Code: WB/IBRD/IDA 03 Exc-10-4539S. 282 Consider the European Commission’s proposal of 12 November 2015 for an ‘investment court system’ for the Transatlantic Trade and Investment Partnership, about which see SW Schill, ‘The European Commission’s Proposal of an “Investment Court System” for TTIP: Stepping Stone or Stumbling Block for Multilateralizing International Investment Law?’ (2016) 20 ASIL Insights 9. 283 UNGA Res 61/261, 4 April 2007; 62/228, 22 December 2007; 63/253, 24 December 2008. 284 Statute of the United Nations Appeals Tribunal, Art 10(5). 279 280

260 Thomas D Grant and Rowan Nicholson That by no means implies that the only impact of the 1950s advisory opinions on administrative tribunals was in the remote future. They had near-term effects as well. In particular, they helped to settle questions about the management of the UN and legal relations within it. The advisory opinions of the Court are not binding. However, Article XII of the Statute of the Administrative Tribunal of the ILO285 provided that an advisory opinion of the ICJ resulting from a request made by an agency that accepts the jurisdiction of the ILO Administrative Tribunal will be binding. This was ‘nothing but a rule of conduct for the Executive Board [of UNESCO in the case at hand]’.286 It was nonetheless a rule for that body. There were six organisations recognising the jurisdiction of the ILO Tribunal at the time (WHO, ITU, UNESCO, WMO, FAO, and CERN).287 There are over 60 today.288 The ILO itself, after consultation with the organisations recognising the ILO Administrative Tribunal’s jurisdiction, in 2016 amended the Statute of the ILO Administrative Tribunal, deleting Article XII.289 A similar amendment to the UNAT Statute had removed the ICJ advisory provision in 1995. This might be seen as another long-term effect of the 1956 Advisory Opinion, telegraphed through more recent practice. In particular, the Advisory Opinion concerning Judgment No 2867 of the Administrative Tribunal of the ILO upon a Complaint Filed against the International Fund for Agricultural Development (2012) had returned to the problem of equality of parties.290 Judge Greenwood’s separate opinion drew pointed attention to it: [I]n the circumstances of the present case, the Court was right to comply with the request for an advisory opinion but I have reached that conclusion with considerable reluctance and only because of the particular circumstances of the case. The Opinion highlights—rightly, in my view—the unsatisfactory nature of the provision for recourse to the Court laid down in Article XII of the Annex to the Statute of the Administrative Tribunal … As the Court makes clear, the procedure created by that provision is open to serious criticisms in that it falls well short of modern standards on equality of the parties in legal proceedings … The need for reform of Article XII of the ILOAT Statute is urgent and it is very much to be hoped that a new procedure for challenging judgments of the Tribunal can be put in place within a short period of time.291

The ILO itself, when in due course it deleted Article XII, expressed concern over ‘equality of access to justice and equality of arms’.292 As binding decisions under the rules of the tribunals concerned, the ICJ’s early statements on the powers of the administrative tribunals contributed to 285 Statute of the Administrative Tribunal of the ILO, 9 October 1946, amended 29 June 1949, Art XII. 286 ILOAT UNESCO Judgments (n 250) 84. 287 ibid, 79. 288 For a list of cases by organisation, see www.ilo.org/dyn/triblex/triblexmain.byOrg. 289 International Labour Conference, 105th session (June 2016); ILO Governing Body, 326th session (March 2016). 290 Advisory Opinion [2012] ICJ Rep 10, 26 (‘any review procedure should enable the staff member to participate on an equitable basis in such procedure, which should ensure substantial equality’). 291 ibid, 93–94 (Judge Greenwood). 292 ‘Amendments to the Statute of the ILO Administrative Tribunal adopted’, 14 June 2016, .

The Early United Nations Advisory Opinions 261 the jurisprudence of these organs and have influenced their conduct since. Other tribunals, like the World Bank Administrative Tribunal, have referred to the ICJ’s advisory practice for guidance.293 The core of an international administrative law— or at least an administrative law for international organisations—in this way began to emerge.294 VII. CONCLUSION

The present chapter has considered a series of advisory opinions delivered in the first decade and a half of the International Court of Justice, which is to say in the opening years of the era of the UN Charter. States in the period from the Charter’s adoption in 1945 to the Court’s delivery of the Certain Expenses Advisory Opinion in 1962 took steps towards implementing a new understanding of sovereignty. They placed an array of technical functions in the hands of international institutions and adopted new multilateral instruments of general subscription. Yet in the same period, deep fissures opened in international society—with the Cold War, between East and West; and, with decolonisation, between North and South. The early advisory practice of the ICJ was part of the community-building enterprise of the day, with all the crosscurrents and challenges that that enterprise entailed. In view of the circumstances, it comes as little surprise that the impact of this advisory practice was not uniform. Surprising, perhaps, is that legal developments would emerge from the practice over such substantial lengths of time. It is not obvious, for example, that one court would have affirmed that the main international organisation could hold the right to receive reparation for injuries done to its agents (Reparation for Injuries); remain essentially silent for half a century as to the obligation of that organisation for injuries done by its agent; and then—with only modest intervening hints as to what eventually would come—affirm the obligation in plain language (Immunity from Legal Process of a Special Rapporteur). Then there was the accountability of this sprawling machinery of international governance to the individuals sometimes caught up in its wheels. It was in 1956 that the Court first confronted the problem of equality of access to justice (ILOAT UNESCO Judgments); it was in 2012 that the Court threw down the gauntlet to the other organs of the international system and thus helped instigate corrective steps (Judgment No 2867). Slow though it may be, this is a court with institutional memory. The jurisprudence, as expounded in the advisory opinions of the ICJ, might not have looked like it was on a course of inexorable progress—nevertheless, it progressed. Perhaps the sharpest challenge against the particular conception of international community emerging during this time came from South Africa. The challenge took form both in South Africa’s internal policy of apartheid and in its administration of South West Africa (Namibia), a territory that had been entrusted to it by the League of Nations. The Court gave three advisory opinions during the period considered 293

See JI Charney (1998) 271 Hague Recueil 1, 225–27. E Benvenisti, ‘The Interplay between Actors as a Determinant of the Evolution of Administrative Law in International Institutions’ (2005) 68 Law and Contemporary Problems 319, 325–31. 294 See

262 Thomas D Grant and Rowan Nicholson in this chapter addressing different aspects of the problem of South West Africa— International Status of South-West Africa (1950),295 Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa (1955),296 and Admissibility of Hearings of Petitioners by the Committee on South West Africa (1956).297 The contentious proceedings instituted against South Africa by Liberia and Ethiopia in 1960 are better known,298 and the judicial culmination came in 1971 with the Advisory Opinion on Namibia.299 South Africa was generally dismissive of the Court, seeing the South West Africa cases at most as a useful distraction that afforded ‘a further breathing space to decide what is to be done about the territory’.300 Decades indeed would elapse before Namibia’s independence in 1990, but the ‘breathing space’ brought South Africa no closer to the result its apartheid rulers desired. To the contrary, the successive advisory and contentious proceedings at the Court traced the accelerating collapse of South Africa’s credibility and resilience in world affairs. Like the other main developments that the advisory practice of the period advanced, the full impact of the South Africa advisory opinions took time to emerge. For a court whose effectiveness in international relations is sometimes questioned, the early advisory opinions remind us that time indeed may have to pass before we can take its full measure.

295

Advisory Opinion [1950] ICJ Rep 128. Advisory Opinion [1955] ICJ Rep 67. Advisory Opinion [1956] ICJ Rep 23. 298 South West Africa (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections [1962] ICJ Rep 319; Second Phase [1966] ICJ Rep 6. 299 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. The Namibia Advisory Opinion and the 1950s advisory opinions concerning South West Africa are treated in the next chapter. 300 US Embassy (Pretoria) to Department of State, 8 November 1960, report by Philip K Crowe of conversation with Minister of External Affairs of South Africa, Eric Louw: Dispatch No 264; 360/11-860. 296 297

11 The South West Africa Cases (1949 to 1971) JAMES CRAWFORD* AND PAUL MERTENSKÖTTER

I. INTRODUCTION

OUR ADVISORY OPINIONS, two judgments, the most litigated territory before the International Court of Justice (ICJ). The South West Africa Cases carry important lessons both about the workings of the Court with its changing composition and about its interaction with the other principal organs of the United Nations.1 As Solomon Slonim pointed out in 1973, this ‘notable intermeshing of law and politics … must be reckoned among the distinctive features of the entire dispute’.2 It is this interplay of legal judgment and political affairs in the face of a clear public policy need—the fight against apartheid in a mandated territory— that provides the theme for this contribution. Part II provides the historical context necessary to understand the South West Africa Cases: the struggle over ultimate authority goes back to Versailles.3 Part III recounts the three advisory opinions handed down between 1950 and 1956. Part IV examines the 1962 and 1966 judgments in the contentious proceedings between Ethiopia and Liberia as Applicants and South Africa as Respondent. Part V traces the highly critical reactions to the 1966 judgment and analyses the Court’s own counterpoise in the form of the 1971 advisory opinion.

* The views expressed are those of the authors. 1 South West Africa Cases refers to the following six decisions: International Status of South-West Africa, (Advisory Opinion) [1950] ICJ Rep 128; South-West Africa—Voting Procedure (Advisory Opinion) [1955] ICJ Rep 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa (Advisory Opinion) [1956] ICJ Rep 23; South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa (Preliminary Objections) [1962] ICJ Rep 319; South West Africa Cases, Second Phase, [1966] ICJ Reports 6; 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. 2 S Slonim, South West Africa and the United Nations: An International Mandate in Dispute (Baltimore, John Hopkins University Press, 1973) 5. 3 For a useful account of the history see S Pederson, The Guardians. The League of Nations and the Crisis of Empire (Oxford, OUP, 2015) esp Chs 4, 7.

264 James Crawford and Paul Mertenskötter II. THE MANDATE OVER SOUTH WEST AFRICA, 1919–50

Article 22 of the Covenant inaugurated the mandates system, giving the League a supervisory role over the territorial administration of former German and Ottoman territories detached by the Peace Treaties. Article 22 was subject to long and heated negotiations, with the United States insisting on League supervision over all mandates, while South Africa and Australia pushed for the annexation of former German South West Africa and New Guinea respectively.4 The final language sacrificed clarity for an ambiguity acceptable to all.5 It read: (1) To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant. (2) The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League. (3) The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances. (4) Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be p rovisionally recognised subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory. (5) Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military training of the natives for other than police purposes and the defence of territory, and will also secure equal opportunities for the trade and commerce of other Members of the League. (6) There are territories, such as South-West Africa and certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population. (7) In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge.

For a general historical introduction, see Slonim, South West Africa (n 2) 11–38. Hudson, The Permanent Court of International Justice, 1920–1942 (New York, Macmillan, 1943) 229. 5 MO

The South West Africa Cases 265 (8) The degree of authority, control, or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council. (9) A permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates.

While Article 22 established the mandate system and defined the ‘primary and substantive obligation undertaken by the mandatory’, its implementation required further agreements between the League and the mandatory to settle the specific ‘degree of authority, control, or administration’.6 The agreement for South West Africa was confirmed by the League Council in December 1920.7 Article 2 provided that: (1) The Mandatory shall have full power of administration and legislation over the territory subject to the present Mandate as an integral portion of the Union of South Africa to the territory, and may apply the laws of the Union of South Africa to the territory, subject to such local modifications as circumstances may require. (2) The Mandatory shall promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory subject to the present Mandate.

Article 6 provided for an annual report by the Mandatory to the Council. Article 7 provided: (1) The consent of the Council of the League of Nations is required for any modification of the terms of the present Mandate. (2) The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice.

The fundamental question, which neither the Covenant nor the Mandate Agreement clearly answered, concerned the location of ultimate authority over the mandate: did it lie with the League or with the Mandatory?8 This question was at issue, expressly or by implication, in all the cases before the Court. III. THE FIRST THREE ADVISORY OPINIONS: STATUS, VOTING PROCEDURE, HEARING OF PETITIONERS

The UN came into being in October 1945 and the League was dissolved shortly after. Under Article 37 of the Statute of the International Court of Justice (an integral part of the UN Charter) the Permanent Court of International Justice was replaced by the new Court in existing jurisdictional clauses, including Article 7(2) of the Mandate for South West Africa. But the Court’s initial involvement took the form not of proceedings under Article 7(2) but of a series of advisory opinions. 6 A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, CUP, 2004) 2; Art 22 [8] of the Covenant. 7 Slonim (n 2) 40. 8 See J Crawford, The Creation of States in International Law, 2nd edn (Oxford, OUP, 2006) 568.

266 James Crawford and Paul Mertenskötter A. International Status of South West Africa (1950) In December 1949, the General Assembly requested an advisory opinion as to ‘the international status of the Territory of South West Africa’ and ‘the international obligations of the Union of South Africa arising therefrom’.9 The request concerned Article 77 of the Charter which did not firmly establish whether former mandated territories (if not already independent) would necessarily become part of the new Trusteeship System. South Africa denied any obligation to convert South West Africa to a trusteeship, and indeed sought approval to annex the territory. The institutional locus for the debate was the Fourth Committee, which received information about the indigenous population’s terrible living conditions through the efforts of Michael Scott, an Anglican clergyman in Johannesburg, the International League for Human Rights, the National Association for the Advancement of Colored People (NAACP), and the Government of India.10 Following the National Party’s 1948 electoral victory on an ‘apartheid’ platform, the passage of the South West Africa Affairs Amendment Act 1949 signaled a move toward annexation.11 Over the vehement opposition of South Africa, the debate led to a resolution requesting an advisory opinion about South West Africa’s international status.12 The first and most important question for the Court was whether ‘South Africa continue[s] to have international obligations under the Mandate for South-West Africa and, if so, what … those obligations are’.13 The Court began by affirming two principles of ‘paramount importance’ for the creators of the mandate system, ‘non-annexation’ and the ‘sacred trust of civilisation’ for the well-being and development of peoples not yet able to assume a full measure of self-government.14 Article 22 and the Mandate Agreement required South Africa ‘to exercise an international function of administration on behalf of the League, with the object of promoting the well-being and development of its inhabitants’.15 Authority over South West Africa rested on the mandate. ‘If the Mandate lapsed,’ so the Court held, South Africa’s ‘authority would equally have lapsed. To retain the rights derived from the Mandate and deny the obligations thereunder could not be justified’.16 This was to become the bedrock of the Court’s stand on the fundamental question of authority implicit in subsequent cases, with the exception only of the 1966 Judgment.17

UNGA Res 338 (IV) (6 December 1949). Clark, ‘The International League for Human Rights and South West Africa 1947–1957: The Human Rights NGO as Catalyst in the International Legal Process’ (1981) 3 HRQ 101, 114. 11 J Dugard (ed), The South West Africa/Namibia Dispute: Documents and Scholarly Writings on the Controversy Between South Africa and the United Nations (Berkeley, University of California Press, 1973), 119–27. 12 UNGA Res 338 (n 9). 13 ibid. 14 International Status of South-West Africa (n 1) 131. 15 ibid, 132. 16 ibid. 17 South West Africa Cases (Preliminary Objections) (n 1) 333 (citing the same language); Legal Consequences for States of the Continued Presence of South Africa in Namibia (n 1) 42 (citing the same language). 10 RS

The South West Africa Cases 267 Because realising the fundamental purposes of the Mandate did not depend on the existence of the League, the winding-up of the League did not put an end to the mandate or to South Africa’s obligations under it.18 The Court confirmed this view with reference to Article 80(1) of the Charter and the League’s final resolution on the question of mandates, which made it clear that the mandates themselves did not come to an end.19 But it also relied on South Africa’s own acknowledgment of continuing ‘obligations under the Mandate’, implying that the substantive obligations continued.20 This led to the corollary institutional question: what now, with the disappearance of the League, was the ‘machinery for implementation’ of the Mandatory’s obligations?21 The Court could not discern in the language of Articles 75 and 77(1) any obligation to conclude a trusteeship agreement, but Article 10 of the Charter gave the General Assembly analogous functions. The subsequent practice of the General Assembly as well as the League’s own final resolution on the topic confirmed that South Africa had an ‘obligation to submit to supervision and control of the General Assembly and to render annual reports to it’.22 This institutional transfer logic enabled the Court to find that the League Council’s procedural innovation as to petitions also carried over to the UN. During its operation, the League Council had adopted rules requiring the mandatory to forward petitions to the League from people living in the mandate. South Africa now had to forward these petitions to the GA.23 This procedural aspect had become politically salient, because of Michael Scott’s attempts to have his own views as well as that of the South West African indigenous groups—the Herero in particular—heard at the UN.24 The Court’s institutional logic is sound in light of the basic principle that the mandatory did not have ultimate authority over the mandate. An institution was needed to maintain accountability. Legally, the transfer conception and the emphasis on maintaining the ‘special legal status’ created by Article 22 overcame the problem of South Africa’s not having consented to the new set-up.25 Consent was not necessary as no new legal relation was entered into, whereas conceiving of it as a novation would make lack of consent problematic.26 But the Court qualified its finding to some degree with a limiting principle, holding that: The degree of supervision to be exercised by the General Assembly should not … exceed that which applied under the Mandates System, and should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations.27

International Status of South-West Africa (n 1) 133. UN Charter, Art 80(1); ibid, 134. 20 ibid, 134–36. 21 ibid, 136. 22 ibid. 23 ibid, 138. Art 22(9) of the Covenant had not provided for individual petitioning. 24 Clark, ‘Human Rights and South West Africa’ (n 10) 114. 25 International Status of South-West Africa (n 1) separate opinion of Judge McNair, 154. 26 Legal Consequences for States of the Continued Presence of South Africa in Namibia (n 1) dissenting opinion of Judge Fitzmaurice, 267; see also, Crawford (n 8) 592. 27 ibid, 138. 19

268 James Crawford and Paul Mertenskötter The General Assembly’s second sub-question was ‘whether the Charter imposes upon the Union of South Africa an obligation to place the Territory under the Trusteeship System by means of a Trusteeship Agreement’.28 A narrow majority of eight judges relied on the voluntary language in Articles 75 and 77 to conclude that the Charter did not require South Africa to submit to the trusteeship system. By contrast Judge de Visscher, with whom three other judges agreed,29 thought that the object and purpose of the UN read with the language of Article 80(2) established an obligation to negotiate with a view to bringing South West Africa under trusteeship. It was again the logic of institutional transfer from the League to the General Assembly that provided the basis for the Court’s unanimous answer to the third sub-question, concerning the ‘competence to modify the international status of the Territory of South-West Africa’.30 Here the Court more strongly emphasised South Africa’s consent to the General Assembly as the ‘competent international organ’.31 The General Assembly accepted the Court’s opinion but continued to call on South Africa to place South West Africa under trusteeship.32 It also established an ad hoc committee to implement the Opinion:33 three years later that Committee was replaced by the permanent Committee on South West Africa,34 whose work would trigger two further advisory opinions. B. Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa (1955) When establishing the Committee on South West Africa, the General Assembly passed Special Rule F which established that its decisions needed a two-thirds majority.35 Since during League times voting had been by consensus, the question was raised whether the new procedure was consistent with the 1950 Opinion.36 The Court first analysed its 1950 statement that ‘the degree of supervision to be exercised by the General Assembly should not therefore exceed that which applied under the Mandates System’. But this qualification only related to substance, not procedure.37 This conclusion was forcefully questioned by Judge Lauterpacht in his separate opinion.38 As to the statement that the General Assembly’s supervision ‘should conform as far as possible to the procedure’ used by the League’s Council,39

ibid, 139. International Status of South-West Africa (n 1) 188. 30 ibid, 141. 31 ibid, 142. 32 UNGA Res 449A (V) (13 December 1950) (accepting the advisory opinion); UNGA Res 449B (V) (13 December 1950) (reiterating that ‘the normal way’ for South West Africa was to be placed under trusteeship). 33 UNGA Res 449A (n 32). 34 UNGA Res 749A (VIII) (28 November 1953). 35 UNGA Res 844 (IX) (11 October 1954). 36 International Status of South-West Africa (n 1) 138. 37 South-West Africa—Voting Procedure (n 1) 72–73, citing ibid, 138. 38 See ibid, 94. 39 ibid, 72, citing International Status of South-West Africa (n 1) 138. 29

The South West Africa Cases 269 this did not require the Assembly to change its own constitutional arrangements— of which the voting procedure under Article 18 of the Charter was one.40 In the Court’s words: ‘one system cannot be substituted for another without constitutional amendment.’41 What is ‘possible’ in terms of transformation for purposes of the saving clause is determined by the receiving institution’s own constitution.42 C. Admissibility of Hearings of Petitioners by the Committee on South West Africa (1956) Three months after the Voting Procedure opinion, a university student claiming to be ‘the only native born from South West Africa in America’43 sought an oral hearing before the Committee on South West Africa. It was argued that South Africa’s refusal to cooperate, including its failure to transmit petitions, left an informational lacuna. As rephrased by the Court, the question to be answered was ‘whether it was legally open to the General Assembly to authorise the Committee to grant oral hearings to petitioners’.44 The reasoning of the Court, again, was guided by what Judge Lauterpacht called ‘the method of pure construction’.45 The Court recalled its principle requiring an unchanging ‘degree of supervision’ in conformity ‘as far as possible with the procedure’ followed by the League.46 But it was not the case that more information made available to the Committee by way of oral hearings would ‘add to the obligations of the Mandatory’:47 information was a means to effective supervision, not supervision in itself. Rather, the Court said, ‘it is in the interest of the mandatory, as well as of the proper working of the Mandates System, that the exercise of supervision by the General Assembly should be based upon material which has been tested as far as possible, rather than upon material which has not been subjected to proper scrutiny’.48 Thus the limiting principle of 1950 allowed for flexibility of methods, but the Court then reached a more politically sensitive issue: South Africa’s refusal to transmit petitions from South West Africans.49 It was this that had made the previous procedure impracticable and the direct petition process to the Committee necessary in the first place.50 For South Africa now to contend that the Committee was not

ibid, 75.

41 ibid. 42

ibid, separate opinion of Judge Lauterpacht, 92. UN Doc/A/2913/Add.2, Annex I(a) (Letter dated 20 September 1955 from Mr E Mburumba Getzen, Lincoln University, Pennsylvania, to the Chairman of the Fourth Committee). 44 Admissibility of Hearings (n 1) 23. 45 South-West Africa—Voting Procedure (n 1) 90. 46 Admissibility of Hearings (n 1) 30. 47 ibid. 48 ibid. 49 ibid, 31. 50 ibid. The dissenting opinion criticised consideration of this factor. See dissenting opinion of VicePresident Badawi and Judges Basdevant, Hsu Mo, Armand-Ugon and Moreno Quintana, 61. 43

270 James Crawford and Paul Mertenskötter maintaining ‘as far as possible’ the League’s procedures was an attempt, so the Court implied, to benefit from its own wrongdoing. The vote here was eight to five. The majority opinion did not rely as heavily on the institutional transfer logic as it had done in 1950 and 1955. Reading the dissent makes clear why: the logic of transfer implied reference back to League practice.51 If no constitutional problem arose, as it did in 1955 with Article 18 of the Charter, the old system of inadmissibility of oral petitions should be maintained.52 Ten years after the end of the League the Court was drawn toward a legal conclusion going beyond the mandates system as it had existed in practice. The trusteeship system, the spirit of human rights at the UN and rising voices against apartheid encouraged the Court to be more progressive. South Africa’s frustration of the League’s petitioning process provided the legal hook for the majority. From South Africa’s perspective, refusal to cooperate with the League’s system had led to a more drastic qualification of its claimed sovereignty. And that still-unrenounced South African claim provided the subtext for the next episode of Court involvement. In 1950, the Court held that while the League had disappeared, the mandate had not. In 1966, after its narrow decision of 1962 in favour of jurisdiction, it effectively reversed itself, holding the mandate obligations unenforceable in limine because even African members of the League lacked a legal interest in their enforcement. IV. THE 1962 AND 1966 JUDGMENTS The Court, by the President’s casting vote—the votes being equally divided, decides to reject the claims of the Empire of Ethiopia and the Republic of Liberia.53

This single-sentence dispositif of the 1966 Judgment caused singular damage to the Court’s relations with the General Assembly and with developing states. After the claims had been argued on the merits, their rejection on purely technical grounds was seen as evasive and legalistic and as implying that mandatory obligations were in effect non-justiciable.54 This reaction was exacerbated by the fact of the 1966 decision being taken on the casting vote of the President (Sir Percy Spender), after he had earlier provoked the recusal of Judge Zafrullah Khan on a questionable basis.55 Had Judge Zafrullah Khan participated, the decision would no doubt have gone the other way: the 1966 ‘majority’ thus seemed not merely technical but manipulated. A. Leading up to 1962 Following South Africa’s refusal to meet its reporting obligations, the General Assembly asked the Committee on South West Africa to study ‘what legal action 51 ibid, dissenting opinion of Vice-President Badawi and Judges Basdevant, Hsu Mo, Armand-Ugon and Moreno Quintana, 65. 52 ibid, 68–69. 53 South West Africa, Second Phase (n 1) 51, [100]. 54 Dugard, The South West Africa / Namibia Dispute (n 11) 216–375. 55 See S Rosenne, The Law and Practice of the International Court 1920–2005, vol II, 4th edn (The Hague, Martinus Nijhoff, 2005), 1058–59 and references.

The South West Africa Cases 271 is open’ against South Africa.56 The most promising suggestion was for a former Member of the League to bring a case to the Court on the basis ‘that a dispute concerning the supervision functions themselves could properly exist, as well as a dispute relating to the administration or the status of the Territory’.57 The General Assembly welcomed the Committee’s report and in June 1960 Ethiopia and Liberia announced their intention to follow the sketched course.58 The lead-up to the contentious proceedings demonstrates how the Court had, through its three advisory opinions in the 1950s, not only taken a central place in the institutional machinery of the UN but was seen as a place of progressive potential. It was the Court that the Member States looked to for the next step toward resolution, and it was ‘legal action’ that was seen to be effective rather than, or at least in conjunction with, the politics at the General Assembly. The Court had accumulated significant institutional and social capital, and it was seen to be organisationally located between the General Assembly and enforcement at the Security Council. B. The 1962 Judgment On 21 December 1962, the Court, by a vote of eight to seven, rejected all of South Africa’s objections to jurisdiction.59 South Africa made four objections: (1) the Mandate for South West Africa was no longer ‘a treaty or convention in force’ as required by Article 37 of the Court’s Statute; (2) the applicants were no longer Members of the League as required by Article 7 of the Mandate Agreement; (3) the relief sought could not constitute a dispute for purposes of Article 7, because the applicants did not have ‘material interests’ at stake; and (4) the claims were not capable of a negotiated settlement.60 i. The First and Second Preliminary Objections The Court rejected the first two objections, relying on the institutional transfer rationale that had guided it in the Advisory Opinions. It stated that ‘the unanimous holding of the Court in 1950 on the survival and continuing effect of Article 7 of the Mandate, continues to reflect its opinion today’.61 South Africa’s obligation to submit to jurisdiction was ‘effectively transferred’ to the Court by Article 37 and remained in force.62 League Members’ ability to bring claims was a necessary check on a Mandatory which could otherwise block a Council decision due to the unanimity requirement.63 This made ‘judicial protection of the sacred trust in each Mandate […] an essential feature of the Mandates System’.64

UNGA Res 1060 (XI) (26 February 1957). UNGAOR, Twelfth Session, Suppl No A (A/3625), 5–6, cited in Dugard (n 11) 212–13. 58 UNGA Res 1142 (XII) (25 October 1957); Slonim (n 2) 180. 59 South West Africa Cases (Preliminary Objections) (n 1) 347. 60 ibid, 326–27. 61 ibid, 334. 62 ibid. 63 ibid, 319, 337. 64 ibid, 336. 57

272 James Crawford and Paul Mertenskötter In a lengthy joint dissent, Judges Spender and Fitzmaurice entirely disavowed the institutional transfer rationale. In response to the question whether Ethiopia and Liberia could still be considered Members of the League the dissent spoke of the ‘transformation or metamorphosis involved’65 for the ‘carry-over’ to work.66 Such a transformation would only be legally possible if the aspect transferred ‘was of so fundamental and essential a character that the instrument or institution could not function without it’.67 But Article 7 ‘could not have not been regarded as having this character’.68 The unanimity rule deprived the mandate system of any overriding effect: [T]here is no conceivable warrant for supposing that it was ever intended to be a part of the Mandates System that the Council of the League should be able to impose its own view on the Mandatory. The existence of the unanimity rule shows the exact reverse.69

According to the dissent, the Council’s voting procedure thus rendered South Africa invulnerable to direction, whatever substantive obligations it had undertaken, and Article 7 could not have been intended to change this situation. ii. The Third and Fourth Preliminary Objections The Court rejected the third preliminary objection on the basis that under Article 7 the Members of the League had a ‘legal right or interest’ in the Mandatory observing its obligations toward the inhabitants of the Mandate.70 Article 7 could not be limited to individual rights such as those under the ‘open door’ (which in any event had no application to South West Africa): ‘the well-being and development of the inhabitants of the Mandated territory are not less important’ than the Members’ own material interests.71 The fourth objection concerned the possibility of resolving the dispute by negotiation, the impossibility of which was required for the Court’s jurisdiction of the compromissory clause in Article 7. The Court focused on the evident ‘deadlock’ that had long existed at the United Nations, which showed that negotiations were impossible.72 C. The Judicial Philosophy of Judges Fitzmaurice and Spender The 99-page joint dissent of Judges Spender and Fitzmaurice was the harbinger of the 1966 Judgment. Two major features are its legal technique, and their conception of the United Nations and the Court’s role. The dissent features a positivism that

ibid, dissenting opinion of Sir Percy Spender and Sir Gerald Fitzmaurice, 506. ibid, 516, see generally 516–18 (discussing the institutional transfer question and its two fallacies). ibid, 518. 68 ibid, 519. 69 ibid, 520. 70 ibid, 343. 71 ibid, 344. 72 ibid, 346. 66 67

The South West Africa Cases 273 presumes international law to exist in freedom from politics. The dissenters claimed in dual double negatives to be not unmindful of nor … insensible to the various considerations of a non-juridical character, social, humanitarian and other, which underlie this case; but these are matters for the political rather than the legal arena. They cannot be allowed to deflect us from our duty of reaching a conclusion strictly on the basis of what we believe to be the correct legal view.73

This categorisation of humanitarian considerations as by definition ‘non-juridical’ begs the question, especially when the relevant texts were drafted with humanitarian considerations in mind. According to the dissenters, the requirement in Article 22 of the Covenant that the Mandatory ‘promote to its utmost the material and moral well-being and the social progress of the inhabitants of the territory’ gave the Judges ‘serious misgivings as to the legal basis on which the necessary objective criteria could be found’.74 To them the Court was not the proper forum for the merits, and this normative consideration ‘strongly reinforce[d]’ their negative conclusion on jurisdiction. The dissenters subscribed to a formalist conception in which the sources of international law would work to keep law and politics separate. Legal technique should keep the law distant from inherently normative determinations, such as those apparently entailed by Article 2 of the Mandate.75 Though artfully presented as positivist, their interpretative stance was as value laden as that of the judges now in dissent in 1966.76 The Judgment’s repeated insistence on the framing of the Mandate in 1920 as the critical date for analysis77 was likewise positivist in form but void in substance. The Wilsonian ideals underpinning the mandate system were present at the creation, though the contingency of the dissolution of the League was not addressed. The mandate gave authority to the Council and the Permanent Mandates Commission but nowhere stated or inferred that they were the only implementing authorities. To impose that meaning on Article 7 was as unjustified in 1966 as it would have been in 1920. These criticisms were made at the time. Thus, Michael Reisman wrote in 1966 of the Court’s analysis A jurisprudence which fabricates a distinction between law and policy and proceeds to apply the desiccated results of the distinction without judicial cognizance of the most intense expectations and demands of the vast majority of the world is a retreat into mysticism. A jurisprudence which has so little confidence in the vigor of law that it must concern itself first with the purity of its own ‘discipline’ rather than the functional and instrumental

ibid, dissenting opinion of Sir Percy Spender and Sir Gerald Fitzmaurice, 466. ibid, 466–67. 75 S Besson, ‘Legal Philosophical Issues of International Adjudication’ in Cesare Romano, Karen Alter and Yuval Shany (eds), The Oxford Handbook of International Adjudication (Oxford, OUP, 2014) 426–28. 76 See also, South West Africa Cases, Second Phase (n 1) 34, [50] (the Court again stating that even if a treaty, ie the UN Charter, includes humanitarian considerations, they do not ‘themselves amount to rules of law.’); cf ibid, dissenting opinion of Judge Padilla Nervo, 453 (‘The sacred trust is not only a moral idea, it has also a legal character and significance; it is in fact a legal principle’). 77 See also ibid 23, [16]. 74

274 James Crawford and Paul Mertenskötter character of law in social progress can hardly serve the needs of a rapidly changing world community. A jurisprudence that can, in the name of law, reach a conclusion which is against the moral and humanitarian principles that it itself concedes, is disquieting. A jurisprudence, which cannot grasp the inevitable, subjective, policy-choice element in legal decision but shuttles through the corridors of Aristotelean logic in order to be “forced” to a conclusion which is non consonant with community policy, lacks the spleen which the modern world may properly demand of theories of law.78

As his dissent in the Temple case showed, Sir Percy Spender (who by 1966 had been elected president of the Court) was well aware of the dynamics of colonialism.79 But he was a conservative who was suspicious of international organisations such as the UN, which he felt might ‘contain those who are working to disrupt the order we believe in’.80 In this he was no doubt influenced by the ‘strict and complete legalism’ of Sir Owen Dixon, the leading Australian jurist of the time.81 But this legalism is not to be conflated with an approach to adjudication that regards political questions as beyond judicial resolution. ‘It is not,’ Dixon said, ‘a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described, but whether they are compelling’.82 In contrast to the approach implicit in the 1962 dissent, and the 1966 Judgment, Dixon had faith in the law as a progressive force: [I]t is an error, if it is believed that the technique of the common law cannot meet the demands which changing conceptions of justice and convenience make. The demands made in the name of justice must not be arbitrary or fanciful. They must proceed, not from political or sociological propensities, but from deeper, more ordered, more philosophical and perhaps more enduring conceptions of justice.83

The same should apply to international law. i. The 1966 Judgment In 1965, the Court heard long and detailed argument about South Africa’s policies toward South West Africa’s indigenous inhabitants and its policy of apartheid. The outcome was a complete surprise.84 In July 1966, on President Spender’s casting vote, the majority (comprising judges from Australia, Poland, Greece, the United

WM Reisman, ‘Revision of the South West Africa Cases’ (1966) 7 Va L R 1, 87–88. Case concerning the Temple of Preah Vihear (Cambodia v Thailand) [1962] ICJ Rep 101, dissenting opinion of Sir Percy Spender,139–42. 80 D Lowe, ‘Percy Spender, Minister and Ambassador’ in J Beaumont, C Waters and D Lowe (eds), Ministers, Mandarins and Diplomats: Australian Foreign Policy Making, 1941–1969 (Melbourne, Melbourne University Press, 2003) 62, 70; see also J Crawford, ‘“Dreamers of the Day”: Australia and the International Court of Justice’ (2013) 14 MJIL 1, 11. 81 O Dixon, ‘Upon Taking the Oath of Office as Chief Justice’ in J Woinarski (ed), Jesting Pilate and Other Papers and Addresses (Melbourne, Law Book Co, 1965) 245, at 247. 82 Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, 82; see generally D Dawson and M Nicholls, ‘Sir Owen Dixon and Judicial Method’ (1985–1986) 15 MULR 543, 545. 83 O Dixon, ‘Concerning Judicial Method’ (1956) 29 ALJ 468, 479. 84 South Africa had not even pleaded the standing objection at the Merits Phase. 79 See

The South West Africa Cases 275 Kingdom, Italy, France and South Africa, over the dissent of the judges from China, the USSR, Japan, the United States, Mexico, Senegal and Nigeria) overruled the 1962 majority and dismissed the case for lack of standing. The first question that arises is whether the 1962 Judgment had not foreclosed this possibility—was it not res judicata? The Court in 1966, conscious of what had been decided in 1962, introduced a distinction. It said: [T]here was one matter that appertained to the merits of the case but which had an antecedent character, namely the question of the Applicants’ standing in the present phase of the proceedings, not, that is to say, of their standing before the Court itself, which was the subject of the Court’s decision in 1962, but the question, as a matter of the merits of the case, of their legal right or interest regarding the subject-matter of their claim, as set out in their final submissions.85

This approach to standing was perhaps best criticised by Rosalyn Higgins: [I]n 1966, the Court sought to explain this effective reversal by saying: ‘To hold that the parties in any given case belong to the category of State specified in the Clause—that the dispute has the specified character—and the forum is the one specified—is not the same as finding the existence of a legal right or interest relative to the merits of the claim’.86 But it must be the same thing—for the categories of States specified in the clause are presumably those who do have a legal interest in the carrying of the Mandate. Moreover, the Court in 1962 classified the Applicants as falling within that category, not as an abstract proposition but in relation to an already existing and formulated set of claims.87

This must be the correct view, otherwise the Court cannot decide any preliminary objection that has an admissibility component, despite the terms of Article 79(9) of the Rules. It is confirmed by the Court’s application of res judicata to its preliminary objections phase in Bosnian Genocide.88 The more consequential part of the 1966 Judgment was, however, the question of substance on which the dismissal was based. Why were there no legal interests or rights of Liberia and Ethiopia at issue? Two main arguments were relied on. ii. ‘Conduct’ and ‘Rights and Interests’ Provisions The distinction between ‘conduct’ and ‘rights and interests’ provisions was the first of these, already foreshadowed in the 1962 joint dissent. Conduct provisions were those, like Article 22 of the Covenant, which required the Mandatory to act a certain way toward the people living in the Mandate. These requirements as to conduct

See also, South West Africa Cases, Second Phase (n 1) 18, [4]. ibid, 37, [60]. R Higgins, ‘The International Court and South West Africa: the Implications of the Judgment’ (1966) 42 Int’l Aff. 573, 580; for a different view see Slonim (n 2) 296–98 (concluding that the legal basis of the 1966 Judgment was pure non-justiciability because of the inherently political character of the dispute). 88 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Preliminary Objections) [2007] ICJ Rep 49, 93–101, [121]–[139]. 86 87

276 James Crawford and Paul Mertenskötter derived, so the argument ran, from the ‘sacred trust’. ‘Rights and interests’ provisions, on the other hand, were clauses like Article 5 of the Mandate Agreement, which protected certain material interests of the other Members of the League, such as missionary activities (if such can be considered material).89 In 1966, the Court took the view that, in contrast to the ‘rights and interests’ provisions, which all Members of the League could attempt to enforce through the international legal process, the conduct provisions ‘appertained exclusively to the League itself’.90 The conduct provisions created no ‘legal tie between the mandatories and other individual members’.91 The 1966 Judgment further denied that the Mandate Agreements created rights erga omnes partes by implication. The Members of the League could derive only those rights from the Mandate Agreements which were ‘unequivocally conferred, directly or by a clearly necessary implication. The existence of such rights could not be presumed or merely inferred or postulated’.92 But no such rights of policing the conduct provisions—neither in their own name nor as agents of the League—had been explicitly conferred on the League’s Members.93 In direct contrast was Judge Tanaka, who wrote in his 1966 dissent: [T]here is no reason why an immaterial, intangible interest, particularly one inspired by the lofty humanitarian idea of a ‘sacred trust of civilization’ cannot be called ‘interest’. In short, the interest possessed by the member States of the League as its Members is corporate and, at the same time, idealistic. However, this does not prevent it from being ‘interest’.94

The idea that there could be ‘humanitarian considerations’ justifying such general legal rights and obligations was rejected by the Court as lying outside the law.95 But to take the view that ‘conduct provisions’ create legal rights only if they expressly confer rights ‘in the same way’ that ‘special interest provisions’ do is a debilitating assumption, especially given the different types of legal rights involved.96 Moreover, and to the same end, the Court interpreted Article 7(2) restrictively. The Court could see nothing in it that would take the clause outside the normal rule that, in a dispute causing the activation of a jurisdictional clause, the substantive rights themselves which the dispute is about, must be sought for elsewhere than in this clause, or in some element apart from it—and must therefore be established aliunde vel aliter.97

89 Mandate for German South West Africa, Art 5 (‘The Mandatory shall ensure in the territory freedom of conscience and the free exercise of all forms of worship, and shall allow all missionaries, nationals of any State Member of the League of Nations, to enter into, travel, and reside in the territory for purpose of prosecuting their calling’). 90 See also South West Africa Cases, Second Phase (n 1) 22, [14]. 91 ibid, 26, [25]. 92 ibid, 28, [32]. 93 ibid; 29, [33], 35, [54]. 94 ibid, dissenting opinion of Judge Tanaka, 252. 95 See also, ibid, 34, [49]. 96 ibid, 39, [66]. 97 See also ibid, 39, [65].

The South West Africa Cases 277 This limiting approach to compromissory clauses has not been followed by the Court,98 and does not reflect the modern law.99 iii. The Role of Institutions in the International Legal Order The Judgment and the separate and dissenting opinions take very different approaches to the role of institutions in the international legal order. The 1966 Judgment, as Slonim put it, ‘rent asunder … the entire fabric of Assembly-Court cooperation— developed and woven through the advisory opinions of 1950, 1955, and 1956 and the Judgment of 1962.’100 In 1962, Judges Fitzmaurice and Spender thought the issue was one between South Africa and the General Assembly exclusively. Liberia and Ethiopia were only appearing in ‘representational capacity’, because Article 34 precluded the United Nations from appearing as a party before the Court.101 They did not consider that a dispute conducted ‘solely within the framework of an international organization’ could constitute an interstate dispute for the purposes of compromissory clauses, especially where the applicant has only participated through its membership in the organisation.102 This position maintains a radical division between the activities of international organisations and politics among states. The same logic of division between international organisation and member state carried over into the 1966 Judgment.103 One response to this institutional distinction came from Judge Koretsky who framed the contentious proceeding not as an instance of inter-state dispute, but as a process by which the alternative control organ of the Mandates, the Court, could be brought into action. On this view, the State was ‘endowed with a right … of judicial initiative within the limits defined by Article 7(2)’.104 The state plays an initiating role in the process but no dichotomy is maintained as between the legal relationship between the League and Mandatory on the one side, and Member of the League and Mandatory on the other side. For Koretsky, the ‘real interest of the Applicants in

98 See, eg, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) [2015] ICJ Rep [114] (in dealing with the possibility of state succession to responsibility, the Court referred to the compromissory clause of the Genocide Convention, Article IX, and noted that it ‘speaks generally of the responsibility of a State and contains no limitation regarding the manner in which that responsibility might be engaged.’ In this sense, the Court was focusing on a part of the compromissory clause to imply the possibility of finding an extension of the obligations within it). 99 M Papadaki, ‘Compromissory Clauses as the Gatekeepers of the Law to be “Used” in the ICJ and PCIJ’ (2014) 5 JIDS 560; E Cannizzaro and B Bonafé, ‘Fragmenting International Law through Compromissory Clauses? Some Remarks on the Decision of the ICJ in the Oil Platforms Case’ (2005) 16 EJIL 481. 100 Slonim (n 2) 313. 101 South West Africa Cases (Preliminary Objections) (n 1) dissenting opinion of Sir Percy Spender and Sir Gerald Fitzmaurice, 547–48. 102 ibid, 549. 103 See also, South West Africa Cases, Second Phase (n 1) 30, [37]. 104 See, eg, ibid, dissenting opinion of Judge Koretsky, 246.

278 James Crawford and Paul Mertenskötter these cases’ was for them to ‘exercise this judicial initiative’.105 Judge Tanaka wrote in the same spirit of institutional innovation when he said: [T]he existence of the Council as a supervisory organ of the Mandate cannot be considered as contradictory to the existence of the Court as an organ of judicial protection of the Mandate. The former, being in charge of the policies and administration of the Mandatory and the latter, being in charge of the legal aspects of the Mandate, they cannot be substituted the one for the other and their activities need not necessarily overlap or contradict each other. They belong to different planes. The one cannot be regarded as exercising appellate jurisdiction over the other.106

Another reflection on the institutional issue came from Judge Jessup who started his discussion of the issue with a quotation from Arnold McNair: There was perhaps no part of the Covenant that called forth more derision from the cynical and the worldly-wise than the Mandates System contained in Article XXII … The Mandates System represents the irruption of the idealist into one of the periodical world settlements which have in the past lain too much in the hands of so-called ‘practical men’.107

Judge Jessup went on to provide examples of cases brought by multiple states and in the context of shared League membership.108 In such cases individual member states did not need to show another ‘legal interest’ beyond a disagreement about ‘a constitutional or other basic treaty provision’.109 He further noted the institutional innovation created by the League through the ‘inter-relation of the function of the Permanent Court of International Justice and of the political organs of the League of Nations, [which was] frequently illustrated in connection with the peace settlements after World War I’.110 V. POLITICAL FALL-OUT FROM 1966 AND THE 1971 ADVISORY OPINION

The 1966 Judgment lost the Court trust among large parts of the international community, notably the G77. As a direct result the Court’s composition became an issue. In the following year, the General Assembly ‘made sure that no white Commonwealth judge was elected’.111 The Court was also institutionally sidelined in the United Nations system. The Court responded in its turn, at least tacitly. The famous erga omnes passage in Barcelona Traction may be seen as recompense for 1966, if not an outright acknowledgement of error. In a passage that clearly implied a reconsideration of the 1966 distinction between an applicant state’s interest in the Mandates ‘conduct’ and ‘legal rights and interest’ provision, the Court declared: [A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field

105

ibid, 248. ibid, dissenting opinion of Judge Tanaka, 257. 107 Editor’s Preface to J Stoyanovsky, The Mandate for Palestine (London, Longmans, 1928) v. 108 South West Africa Cases, Second Phase (n 1) dissenting opinion of Judge Jessup, 413–14. 109 ibid, 414. 110 ibid, 423. 111 Dugard (n 11) 378. 106

The South West Africa Cases 279 of diplomatic protections. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. … Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.112

For South West Africa itself, events moved more swiftly. On 27 October 1966, by 114 votes to two (Portugal and South Africa) and with three abstentions (France, Malawi and the United Kingdom) the General Assembly adopted Resolution 2145(XXI) terminating the Mandate for South West Africa. The Resolution remarked that the General Assembly was ‘[g]ravely concerned at the situation in the Mandated Territory, which has seriously deteriorated following the judgment of the International Court of Justice of 18 July 1966’.113 As a result, South West Africa came under the ‘direct responsibility of the United Nations’.114 In a logical next step, the General Assembly set up a Council for South West Africa to administer the territory in May 1967.115 The Council was given legislative authority over South West Africa and there was to be a Commissioner for South West Africa to hold executive powers.116 South Africa denied the validity of these acts and continued its presence in South West Africa, making it impossible for the Council and Commissioner to discharge their functions. The aftermath of the 1966 Judgment brought into play a further institutional dimension of the United Nations system—the relationship between the General Assembly and the Security Council. Whereas the idea behind contentious proceedings in 1960 had been for the Court to create the institutional link between the Assembly and the Council, the 1966 Judgment had foreclosed that path. The institutions now needed to find another route. South Africa having ignored the resolution terminating the mandate, the Assembly turned to the Council for help. Initially the Council was reluctant: it was only the passing of drastic legislation by South Africa that prompted action.117 After South Africa rebuffed its first resolution, the Security Council adopted a sharper tone and called upon South Africa ‘to withdraw its administration from the territory immediately and in any case before 4 October 1969’.118 South Africa refused again.119 The Security Council passed a resolution aimed at isolating South Africa internationally,120 and a further resolution requesting an advisory opinion from the

112 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase [1970] ICJ Rep 3, 32, [33]–[34]. 113 UNGA Res 2145(XXI) (27 October 1966). 114 ibid, [4]; see also Crawford, Creation of States (n 8) 589. 115 Dugard (n 11) 409–13, reproducing in full UNGA Res 2248 (S-V) (19 May 1967). 116 UNGA Res 2248 (n 115) [1(b)], [3]. 117 Slonim (n 2) 322–26; Dugard (n 11), 438; UNSC Res 264 (20 March 1969) UN Doc S/RES/264. 118 UNSC Res 269 (12 August 1969) UN Doc S/RES/269, [5]. 119 Dugard (n 11) 441. 120 UNSC Res 283 (29 July 1970) UN Doc S/RES/283.

280 James Crawford and Paul Mertenskötter ICJ as to ‘the legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970)’.121 The Court was back in the game.122 A. The 1971 Advisory Opinion The Court’s Advisory Opinion was delivered in June 1971, more than 20 years after its Opinion on the International Status of South West Africa. By 13 votes to two, the Court upheld the validity of the various resolutions and spelled out the legal consequences of the termination of the mandate. While the Opinion raises a number of legal issues,123 we will again focus on the Court’s approach to the institutional questions; foremost the Court’s understanding of the power of the Assembly and Council to create international obligations for states. In determining the legal consequences of South Africa’s continuing presence in South West Africa, the central question was whether the United Nations had validly terminated South Africa’s Mandate thereby making the latter’s continuing presence there unlawful. The two relevant acts were General Assembly Resolution 2145 and Security Council Resolution 276.124 General Assembly resolutions are generally not binding.125 But the Advisory Opinion held that in ‘specific cases’ such resolutions can ‘make determinations or have operative design’.126 It also held that ‘[b]y resolution 2145 (XXI) the General Assembly terminated the Mandate’.127 Evidently this was one of those ‘specific cases’. The basis for this, according to Judges Zafrullah Khan, Petrén, Oneyeama and Dillard was the institutional transfer logic developed in the 1950 Opinion.128 If the General Assembly was the effective successor to the League Council, and the latter had the power to revoke the mandate in the face of a serious breach as a ‘necessary part of its supervisory powers’, so did the General Assembly.129

121

UNSC Res 284 (29 July 1970) UN Doc S/RES/284. Afro-Asian States remained unenthusiastic about bringing the matter back to the Court. See Dugard (n 11) 493. 123 See eg Crawford, Creation of States (n 8) 162–68 (addressing the Opinion’s approach to the duty of non-recognition). 124 See Dugard (n 11) 487. 125 UN Charter, Art 10 (the General Assembly ‘may make recommendations to the Members of the United Nations or the Security Council’); South-West Africa—Voting Procedure (n 1) separate opinion of Judge Lauterpacht, 92 (‘the absence of full legal binding force in the resolutions of the GA is a … fundamental and … rudimentary proposition’); see generally E Klein and S Schmahl, ‘Article 10’ in B Simma, D-E Khan, G Nolte and A Paulus (eds), The Charter of the United Nations, 3rd edn (Oxford, OUP, 2012) 468, 479–87. 126 Legal Consequences for States of the Continued Presence of South Africa in Namibia (n 1) 16, [50]. 127 ibid, [51]. 128 International Status of South-West Africa (n 1) 137. 129 Legal Consequences for States of the Continued Presence of South Africa in Namibia (n 1), Declaration of President Khan, 61; separate opinion of Judge Petrén, 131–33; separate opinion of Judge Oneyama, 146–47; separate opinion of Judge Dillard, 163–65. 122

The South West Africa Cases 281 But the Opinion was not unequivocal: elsewhere it suggested that it was only the Security Council that converted the General Assembly’s recommendation into an international obligation binding on States. Thus the Assembly was ‘lacking the necessary powers to ensure the withdrawal of South Africa from the Territory’ and consequently ‘enlisted the co-operation of the Security Council’.130 But how could the Security Council resolution, not adopted under Chapter VII, be binding upon states? Here the Court relied on Article 25 of the Charter, which states that ‘the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’.131 While ‘revolutionary’ at the time,132 the accepted view today is that this provides a basis for the Security Council’s power to make binding decisions outside Chapter VII in certain limited circumstances.133 In these respects the 1971 Opinion seems to have developed the law toward more institutional power of the Security Council. A final point to make about the Advisory Opinion, also institutional in a sense, goes to the Court’s apparent adjudication of the underling merits of the dispute it had declined to decide in 1966. The Advisory Opinion includes the following passage: Under the Charter of the United Nations, the former Mandatory had pledged itself to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, 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 Charter.134

It is doubtful whether this question was actually before the Court. It is also unclear why the Court decided to address this question when it had earlier stated that it was for the General Assembly to make the determination.135 Perhaps most importantly, it is unclear why the Court was willing to make such a substantive finding without having heard or examined any evidence. The Opinion seems to rest on the principle of non-discrimination alone, which was controversial as a matter of lex lata at the time, and remains so today.136 It has even been suggested that it was the applicants’ move toward this legal strategy that had a significant effect on the outcome of the 1966 case. The question of international law’s position toward apartheid had been squarely before the Court in the contentious proceedings, but was never resolved.

Landmark Cases in Public International Law ( PDFDrive.com ).pdf - PDFCOFFEE.COM (2024)