………………

As to issue 3: on justification of the imposition of tariffs

4. There is a fundamental change in the circumstances thereby justifying the

imposition of the tariffs.

Additionally, in Gabcikovo-Nagymaros case,1 mentioned by the ILC in its commentaries, the

International Court of Justice recognized that the necessity defense was customary international
law and that interests extending beyond a state’s borders could justify its invocation.2

As to issue 4: on jurisdiction of ICC:

The notion that there is no violation of article 34 of the VCLT as the prosecution is against
individuals, not states is invalid. In this regard, it is recalled that the 2004 United Nations
Convention on Jurisdictional Immunities of States and Their Property provides that the concept
of a ‘state’ for the purposes of immunity includes representatives of the State acting in that
capacity’3. Darian Grey, as Rasasa’s incumbent Foreign Affairs minister4 falls squarely within
this concept.

Moreover, the customary rule that crimes committed within the territorial jurisdiction of a state
may come before its courts even when the offender is a foreign citizen5 cannot stand. The foreign
citizens contemplated in the rule does not include persons accorded immunity by international
law.

1
Gabcikovo-Nagymaros (Hungary v. the Slovak Republic), 1997 I.C.J. 7, 40 (Sept. 25, 1997).
2
Andrea K. Bjorklund, “Emergency Exceptions to International Obligations in the Realm of Foreign Investment:
The State of Necessity as a Circumstance Precluding Wrongfulness”, Report for the International Law Association
Committee on International Investment 2006
3
2004 UN Convention on Jurisdictional Immunities of States and Their Property, Article 2(1)(b)(iv)
4
Agreed Facts, ¶32.
5
Malcolm N. Shaw, International Law, sixth edition, p. 653
 Where the prosecutor or territorial state brings a complaint concerning the nationals of a non-
party state, Article 18 of the statute accords the non-party state the same procedural rights as
party states in terms of challenging the admissibility of the case. 6

Mr Kreß avers that article 27 of the Statute does not innovate on the existing content of
customary international law;274 rather, the international criminal court exception has been
authoritatively confirmed and applied subsequently as a cardinal principle of international
criminal law codified in article 27(2) of the Statute. 7
Ms Gaeta submits that, while she agrees with Mr Kreß that article 27(2) is reflective of customary
international law, this general rule removing immunities does not extend to the matter of judicial
cooperation; as a consequence, article 98(1) is applicable to the case at hand and Jordan was not
obliged to execute the request to arrest and surrender Mr Al-Bashir 8

The above reading does not deprive article 98(1) of meaning. Article 98(1) of the Statute is indeed, as
stated by Jordan, a ‘conflict-avoidance rule’,357 ensuring that States Parties are not placed in a situation
where their cooperation obligations require them to breach an obligation owed to a third State. 9

article 86 of the Statute stipulates the general obligation of States Parties to cooperate fully with the
Court; the more specific obligations are set out in the subsequent articles. Cooperation of States not
parties to the Statute is addressed in article 87(5), which provides, in its sub-paragraph (a), that the Court
may ‘invite any State not party to [the] Statute to provide assistance under [Part 9 of the Statute] on the
basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis’. Sub-
paragraph (b) provides for the possibility of bringing cases of non-compliance under certain conditions
before the Assembly of States Parties or the UN Security Council. 10

While the UN Security Council may obligate States not parties to the Statute to cooperate with the Court,
it is of note that the Statute does not provide for a third regime of cooperation specific to UN Security
Council referrals. Thus, given that the Court must exercise its jurisdiction ‘in accordance with [the]
Statute’, cooperation by a State following a referral by the UN Security Council must either follow the
rules provided for States Parties (articles 86 et seq. of the Statute) or the more limited regime for States
not parties to the Statute (article 87(5) of the Statute). That is to say, in the absence of a comprehensive
6
Rome Statute, Article 18(1).
7
SITUATION IN DARFUR, SUDAN, IN THE CASE OF THE PROSECUTOR v. OMAR HASSAN AHMAD AL-BASHIR,
Judgment in the Jordan Referral re Al-Bashir Appeal , Prosecutor’s Final Submissions, par. 89.
8
SITUATION IN DARFUR, SUDAN, IN THE CASE OF THE PROSECUTOR v. OMAR HASSAN AHMAD AL-BASHIR,
Judgment in the Jordan Referral re Al-Bashir Appeal , Prosecutor’s Final Submissions, par. 90.
9
S ITUATION IN DARFUR, SUDAN, IN THE CASE OF THE PROSECUTOR v. OMAR HASSAN AHMAD AL-BASHIR,
Judgment in the Jordan Referral re Al-Bashir Appeal , Prosecutor’s Final Submissions, para. 131.
10
S ITUATION IN DARFUR, SUDAN, IN THE CASE OF THE PROSECUTOR v. OMAR HASSAN AHMAD AL-BASHIR,
Judgment in the Jordan Referral re Al-Bashir Appeal , Prosecutor’s Final Submissions, para. 136.
regime of cooperation spelt out in a Security Council resolution, with the clear intention of replacing the
two cooperation regimes provided for in the Rome Statute, cooperation must be governed by either of the
two regimes provided for under the Rome Statute. The question that then arises is under which of the two
regimes cooperation by Sudan in respect of the situation in Darfur falls, given that Resolution 1593 does
not provide any comprehensive regime of cooperation that would guide the Darfur referral. 11
On its face, it would appear that the answer is straight-forward: Sudan is not party to the Statute and any
cooperation would therefore seem to fall under article 87(5) of the Statute. This would mean that it is
open to Sudan to enter into ad hoc arrangements or agreements with the Court regarding cooperation, but
that it is not required to do so, and that, in the absence of such an arrangement or agreement, there is
simply no obligation for Sudan to cooperate with the Court. In the view of the Appeals Chamber,
however, such an approach would be overly simplistic and disregard Sudan’s legally binding obligations
under Resolution 1593.
For that reason, there were also no ‘irreconcilable legal obligations’ that Jordan was facing372
when being asked to arrest and surrender Mr Al-Bashir to the Court. Nor was this a situation
where customary or conventional international law existing in the relationship between Sudan
and Jordan was modified by the Statute without Sudan becoming a party to the Statute373 – the
modification was effected by Resolution 1593, which imposed legally binding obligations on
Sudan.12

Thus, the exception to the exercise of the Court’s jurisdiction provided in article 27(2) of the
Statute should, in principle, be confined to those States Parties who have accepted it.13

Respondent emphasizes the prosecutor’s argument in said case that nothing in the statute “necessarily
gives rise to ‘conflicting obligations’ because the Statute, being a treaty, acts ‘as lex specialis by reference
to relevant customary law’14 such that ‘a State Party or a UN Security Council Situation-Referral
State can neither ‘claim immunity vis-à-vis the Court’s exercise of jurisdiction, nor validly object to any
request addressed to it for arrest and surrender of its official’. 15 The prosecutor’s submission belies any
notion that jurisdiction may be exercised when a state is neither a party to the statute or one involved in a
situation referred to the ICC by the UNSC.

Notes:

11
S ITUATION IN DARFUR, SUDAN, IN THE CASE OF THE PROSECUTOR v. OMAR HASSAN AHMAD AL-BASHIR,
Judgment in the Jordan Referral re Al-Bashir Appeal , Prosecutor’s Final Submissions, para. 137.
12
S ITUATION IN DARFUR, SUDAN, IN THE CASE OF THE PROSECUTOR v. OMAR HASSAN AHMAD AL-BASHIR,
Judgment in the Jordan Referral re Al-Bashir Appeal , Prosecutor’s Final Submissions, para. 145.
13
The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Cooperation of the Democratic Republic of the
Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, International Criminal Court, ICC-02/05-
01/09, 9 April 2014, par. 26.
14
SITUATION IN DARFUR, SUDAN, IN THE CASE OF THE PROSECUTOR v. OMAR HASSAN AHMAD AL-BASHIR,
Judgment in the Jordan Referral re Al-Bashir Appeal, Prosecutor’s Final Submissions, para. 5.
15
SITUATION IN DARFUR, SUDAN, IN THE CASE OF THE PROSECUTOR v. OMAR HASSAN AHMAD AL-BASHIR,
Judgment in the Jordan Referral re Al-Bashir Appeal, Prosecutor’s Response, para. 20
General Armistice agreement

- An agreement between belligerents which results in a complete cessation of all hostilities for a
specified period of time, usually of some considerable duration, or for an indeterminate period.
It applies to all the forces of the opposing belligerents, wherever they may be located. It may
have a political and economic, as well as a military, character.
- A war convention – an agreement, consensual. Belligerents are free to include any provisions
guided only by the necessities of war.
- May only be concluded on behalf of the sovereignty of the state by either of two methods:
o A specific provision that it is to become effective only after ratification, or
o The representatives of the state designated to negotiate the armistice may be provided
with full powers. (preferred method)
- Armistice does not terminate the state of war existing between the belligerents, either de jure
or de facto, the state of war continues to exist and to control the actions of neutrals as well as
belligerents.
o

no immunity ratione materiae exists under customary international law in the case of national and
international proceedings for genocide, crimes against humanity, war crimes and the crime of
aggression.16

Indeed, it should be borne in mind that, in the case of the European Convention on the Transfer of
Proceedings in Criminal Matters, one of the reasons to refuse a transfer request is respect for the
“international undertakings” of the requested State, which include diplomatic immunity, as set forth in
the explanatory report to the Convention 17

43. The Court will thus examine first the application of Article XX, paragraph 1 (d), of the 1955 Treaty,
which in the circumstances of this case, as explained above, involves the principle of the prohibition in
international law of the use of force, and the qualification to it constituted by the right of self-defence.
On the basis of that provision, a party to the Treaty may be justified in taking certain measures which it
considers to be "necessary" for the protection of its essential security interests. As the Court
emphasized, in relation to the comparable provision of the 1956 United StatesINicaragua Treaty in the
case concerning Military and Paramilitary Activities in and against Nicaragua, "the measures taken must
not merely be such as tend to protect the essential security interests of the party taking them, but must
be 'necessary' for that purpose"; and whether a given measure is "necessary" is 'hot purely a question
for the subjective judgment of the party" (1 C. J. Reports 1986, p. 141, para. 282), and may thus be
assessed by the Court. In the present case, the question whether the measures taken were "necessary"
overlaps with the question of their validity as acts of self-defence. As the Court observed in its decision

16
Pg 2127, claus kreb, commentary on rome statute
17
See Explanatory Report to the European Convention on the Transfer of Proceedings in Criminal Matters (ETS-
073), commentary to art. 11 (i), p. 22. (pg. 54 of 7 th report on immunity)
of 1986 the criteria of necessity and proportionality must be observed if a measure is to be qualified as
self-defence (see ibid., p. 103, para. 194, and paragraph 74 below). 18

Where a dispute before one tribunal is inextricably connected to another antecedent or concurrent
dispute, in a manner similar to that in the bifaceted Bluefi n Tuna dispute, it is arguable that, based on a
‘ single dispute theory ’ , one forum should apply comity by declining to exercise jurisdiction or
suspending the proceedings, pending the outcome of the dispute in the other forum. This integrationist
approach is cognizant of legal pluralism (that states and individuals are subject to a multiplicity of rights
and obligations under different sources of law), 161 and that parallel claims under WTO and FTA law,
while framed in accordance with the law of each jurisdiction, are not distinctive. It is also a pragmatic
means of avoiding a panoply of potentially confl icting judgments.

e Pauwelyn’s theory of ‘ jurisdictional defence ’ using lex specialis and lex posterior

Case Concerning Conservation and Sustainable Exploitation of Swordfish Stocks

in the South-Eastern Pacific Ocean (Chile v. European Communities)
Chile – Measures Affecting Transit and Importation of Swordfish dispute 

TO jurisdiction overlaps with that of non-trade-focused dispute settlement fora, such as the International Court of Justice (ICJ),
the International Tribunal for the Law of the Sea, and the Permanent Court of Arbitration. WTO disputes may be linked to
broader disputes before these tribunals, although the WTO may be seen as a more effective forum for resolving disputes given
the relative speed of delivering judgments and perceived greater enforcement powers created by the threat of cross-sectoral
retaliation.

The Argentina – Poultry case demonstrates the problems that can arise where, faced with an
unfavourable judgment delivered in one jurisdiction, a disputant seeks to relitigate the dispute before
another tribunal. In this case, Brazil took a complaint to the WTO following an adverse ruling from the
MERCOSUR tribunal in relation to the same subject matter. In preliminary argument, Argentina
requested that the Panel refrain from exercising jurisdiction, on the basis of the prior MERCOSUR
tribunal ruling. It framed its legal argument in terms of breach of the obligation of good faith,
estoppel, and an argument based on Article 31(3)(c) of the Vienna Convention on the Law of Treaties
(VCLT). 54 These arguments were dismissed by the Panel. In reaching its ruling on jurisdiction, the
WTO Panel considered a provision in MERCOSUR’s Brasilia Protocol, which allowed a complaining
party choice of forum but not exclusivity. The Panel noted that since the dispute had been fi led at the
WTO the parties had signed a new dispute settlement protocol which provides for exclusive
jurisdiction once a forum has been elected. 55 Recognizing the problem that the non-exclusive forum

18
Oil platforms, par. 43, icj judgment 2003
selection clause gave rise to, the Panel remarked that the fact that the MERCOSUR parties had
introduced the new rules indicated that they recognized that it was currently permissible to bring a
dispute under WTO rules following a MERCOSUR dispute. 56 Because the former Protocol was still in
force, the WTO considered that it was required to exercise jurisdiction notwithstanding the prior
ruling on the same matter at issue, and did not consider whether, in the circumstances, it would be
appropriate to do so.