Landmark Cases in Public International Law

637 Pages·2017·7.276 MB·English

by  Cameron Miles, Eirik Bjorge

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 inter-
national 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.
ii
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 Bloomsbury Publishing Plc
Kemp House 50 Bedford Square
Chawley Park London
Cumnor Hill WC1B 3DP
Oxford OX2 9PH UK
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 imagina-
tive 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 func-
tions 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 elabora-
tion 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 analyti-
cal 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 enuncia-
tion 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 inter-
national 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 Inter-
national 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 pub-
lic and private international law, and international dispute settlement. He has
been counsel in proceedings before the International Court of Justice; the Iran–US