Part VII State jurisdiction, 20 Sovereignty and

equality of states
James Crawford SC, FBA

From: Brownlie's Principles of Public International Law (9th Edition)

James Crawford

Previous Edition (8 ed.)

Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 09 July 2019
ISBN: 9780198737445

Subject(s):
Sovereignty — States, equality — Pacta sunt servanda — Jurisdiction of states, domestic

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 (p. 431) 20  Sovereignty and equality of states
1.  The Concept of Sovereignty
The sovereignty of states1 represents the basic constitutional doctrine of the law of nations,
which governs a community consisting primarily of states having, in principle, a uniform
legal personality.2 If international law exists, then the dynamics of state sovereignty can be
expressed in terms of law. If states (and only states) are conceived of as sovereign, then in
this respect at least they are equal, and their sovereignty is in a major aspect a relation to
other states (and to organizations of states) defined by law.
The corollaries of the sovereignty and equality of states are: (1) a jurisdiction, prima facie
exclusive, over a territory and the permanent population living there; (2) a duty of non-
intervention in the area of exclusive jurisdiction of other states; and (3) the ultimate
dependence on consent of obligations arising whether from customary law or from treaties.
The last of these has certain special applications: in principle, the jurisdiction of
international tribunals depends on the consent of the parties; membership of international
organizations is not obligatory; and the powers of the organs of such organizations to
determine their own competence, to take decisions by majority vote, and to enforce
decisions depend ultimately on the consent of member states.3
(p. 432) The manner in which the law expresses the content of sovereignty varies, and much
of the law could be expressed in terms of the coexistence and conflict of sovereignties. Yet
another perspective is provided by the notion of sovereignty as discretionary power within
areas delimited by the law. Thus, states alone can confer nationality for the purposes of
municipal law, delimit the territorial sea, and decide on the necessity for action in self-
defence. Yet in all these cases the exercise of the power is conditioned by international law,
and compliance with those conditions is not a matter for the acting state alone.

2.  Some Uses of ‘Sovereignty’

(A)  The competence of states
The term ‘sovereignty’ is variously used to describe the legal competence which states have
in general, to refer to a particular function of this competence, or to provide a rationale for
a particular exercise of this competence. The word itself has a lengthy and troubled history,
and is susceptible to multiple meanings and justifications.4 In its most common modern
usage, however, the term is rather descriptive in character, referring in a ‘catch-all’ sense to
the collection of rights held by a state, first in its capacity as the entity entitled to exercise
control over its territory and, secondly, in its capacity to act on the international plane,
representing that territory and its people.5 Sovereignty is not to be equated with any
specific substantive right, still less is it a precondition to statehood.6 Thus jurisdiction,
including legislative competence over national territory, may be referred to by the terms
‘sovereignty’ or ‘sovereign rights’. Sovereignty may refer to the title to territory or to the
rights accruing from the exercise of title. The correlative duty of respect for territorial
sovereignty,7 and the privileges in respect of (p. 433) territorial jurisdiction referred to as
sovereign (or state) immunity, are described after the same fashion. In general,
‘sovereignty’ characterizes powers and privileges resting on customary law which are
independent of the particular consent of another state.

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 (B)  Sovereignty as equality
A corollary of their independence is the equality of states,8 historically expressed by the
maxim par in parem non habet imperium.9 In international law, the maxim is frequently
invoked as a basis for state immunity, at the core of which (in its restricted modern
application) is the concept of equality between sovereigns.10 But equality has further
implications: it refers to the juridical conceptualization of the division of power between
states. Obviously, the allocation of power and the capacity to project it in reality are
different things, which suggests that while all states are equal, some are more equal than
others.11
But nonetheless formal equality remains and has meaning.12 When, by legislation or
executive decree, a state delimits a fishing zone or the territorial sea, the manner and
provenance of the exercise of such power is in the first place a matter for the state. But
when it comes to enforcing the limit vis-à-vis other states, the issue is placed on the
international plane. Similarly, the conferral or withdrawal of nationality may lead to a
collision of interest between two states as to the right to exercise diplomatic protection.
One might conclude that the criterion depends on a distinction between internal
competence—no outside authority can annul or prevent the internally valid act of state
power—and international responsibility for the consequences of the wrongful exercise of
that competence, which certainly has wide application, but it is not absolute in character.
Thus, in particular contexts, international law may place restrictions on the ‘internal’
territorial competence of states as a consequence of treaty obligations, for example,
forbidding legislation which discriminates against certain groups among the population. In
the case of various territorial privileges, created either by general or local custom or by
treaty, other states are permitted to exercise governmental functions, that is, perform
sovereign acts, within the territorial domain.

(p. 434) 3.  The Interaction of States with International Law

At this point it may be useful to review some of the ways states interact with international
law.

(A)  Sovereignty and the application of rules

(i)  The performance of obligations arising from treaties
One of the central canons of the customary international law of treaties is the rule pacta
sunt servanda, that is, the notion that states must comply with their obligations in good
faith.13 No case has yet arisen in which an international court or tribunal repudiated the
rule or challenged its validity. From a certain point of view, the rule is axiomatic and self-
evident.14 From another, it is in tension with the concept of sovereignty, in that the
obligation to perform (and to be held to account for non-performance) appears to restrain a
state’s ability to exercise its sovereignty.
In Wimbledon, the Permanent Court firmly rejected the argument that a treaty provision
could not deprive a state of the right to apply the law of neutrality to vessels passing
through the Kiel Canal. The SS Wimbledon was a British-owned steamship time-chartered
to a French company. On board was a cargo of Italian munitions destined for the Polish
naval base at Danzig. Poland was at war with Russia, a conflict in respect of which Germany
had pledged neutrality. For fear that German neutrality would be breached if the ship were
allowed passage, the Wimbledon was detained and eventually forced to find its way to
Danzig through the Denmark Strait, with consequent delays. Britain, France, Italy, and
Japan (but not Poland) claimed reparation, asserting that Germany’s refusal to grant
passage to the Wimbledon was contrary to Article 308 of the Treaty of Versailles,15

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 requiring Germany to allow passage through the Kiel Canal to all vessels of nations with
which it was not at war.
The Court held that the idea that the treaty restrained Germany’s ‘sovereign’ right to
impose the law of neutrality on the Kiel Canal was fallacious. The treaty itself was an
expression of conduct to which the state consented to be bound. Rather than removing the
right to apply the law of neutrality to the Kiel Canal, it created an obligation (p. 435) to
exercise that right in a certain way, with the capacity to enter into an international
obligation being itself an attribute of sovereignty.16
(ii)  Interpretation of treaties
On occasion, the International Court has referred to sovereign rights as a basis for a
restrictive interpretation of treaty obligations.17 But under the unitary theory of
interpretation set out in the VCLT Article 31 and customary international law, everything
depends on the context, the intention of the parties, and the relevance of other,
countervailing, principles such as that of effectiveness. In certain contexts, this application
of other canons of interpretation has led to a complete reversal of the restrictive approach,
particularly in circumstances where the dispute concerns a state and a private party.18
Investor–state arbitration tribunals are particularly forward in this respect, often holding
that international investment agreements should be interpreted either neutrally19 or for the
benefit of the private investor.20 It is argued by some that the doctrine of restrictive
interpretation in favour of sovereignty is no longer applicable.21 This approach finds
support in the more recent approach of the International Court.22
(p. 436) (iii)  Presumptions and burdens
Many areas of international law are uncertain or contain principles which do not admit of
easy application to concrete issues. Thus, much could turn on the answer to the question
whether there is a presumption in favour of sovereignty. In another form the issue is
whether, in case of doubt as to the mode of application of rules or in case of an absence of
rules, the presumption is that states have legal competence or not. In the Lotus, the Court
decided the issue of jurisdiction on the basis that ‘restrictions upon the independence of
States cannot be presumed’.23 But yet again there is no general rule, and in judicial
practice issues are approached empirically. Indeed, a general presumption of either kind
would lead to inconvenience or abuse. The context of a problem will determine the
incidence of the burdens of proof of a given issue: whether that produces a burden of
proving a restriction on sovereignty will vary. The ‘jurisdictional geography’ of the problem
may provide useful indications: more than one sovereignty may be involved. Thus in Asylum
the Court stressed the fact that diplomatic asylum involves a derogation from sovereignty
as represented by the normally exclusive jurisdiction of the territorial state.24

(B)  Sovereignty and international organizations

The institutional aspects of organizations of states result in an actual, as opposed to a
formal, qualification of the principle of sovereign equality.25 In an organization subject to
majority or weighted voting, organs may be permitted to take decisions, and even to make
binding rules, without the express consent of all member states. But on joining the
organization each member consented in advance to the institutional aspects, and thus in a
formal way the principle that obligations can only arise from the consent of states and the
principle of sovereign equality are satisfied.
On the other hand, international organizations can evolve and may assume roles very
different to that initially contemplated. In the case of the UN, the organs have interpreted
the Charter in accordance with the principles of effectiveness and implied powers at the
expense, it may seem, of Article 2(1) and (7).26 In Certain Expenses, the Court held that in
the absence of any particular procedure to determine the validity of the acts of the UN’s
institutions, each of them must determine their own jurisdiction.27 Some 40 years later, this

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 position arguably enabled the Security Council to pass several (p. 437) ‘legislative’
resolutions using its Chapter VII powers.28 These resolutions require states to enact
particular domestic laws, thereby supplanting the recommendatory role of the General
Assembly, the treaty-making process, and the principle of consent.29 True, the Security
Council has always had the power to bind UN Members to the point of overriding other
treaty obligations,30 but legislative resolutions require Members to respond to a general
phenomenon (the financing of terrorism, the transport of nuclear weapons) rather than a
specific situation involving a particular country or region. That is at odds with the original
conception of the Security Council as a force for the maintenance of world peace, not the
alteration of world order.31
If an organization encroaches on the domestic jurisdiction of members to a substantial
degree, the structure may approximate to a federation. Given the modern conception of the
relationship between states and international organizations, such a position seems
inherently unlikely, and in any event, the consent-based conception of this relationship
precludes the argument that state sovereignty is under threat from some form of
overarching ‘world government’. Pending an (unlikely) revolution, ‘world government’ is an
essentially decentralized enterprise, something international law provides because states
have accepted it: it is the government we have when we are not having a government.

(C)  Article 2(7) of the UN Charter: domestic jurisdiction

Matters within the competence of states under general international law are said to be
within the reserved domain, the domestic jurisdiction, of states.32 But this is tautologous,
and in practice the category of domestic jurisdiction is not very fruitful. As a source of
confusion, however, it deserves some consideration.
(i)  Original intent
The advent of international organizations with powers to settle disputes on a political basis
caused some states to favour express reference to the reserved domain in order to reinforce
state sovereignty. Article 15(8) of the League of Nations Covenant provided, in relation to
disputes submitted to the Council as distinct from arbitration or judicial settlement:
(p. 438)

If the dispute between the parties is claimed by one of them, and is found by the
Council, to arise out of a matter which by international law is solely within the
domestic jurisdiction of that party, the Council shall so report, and shall make no
recommendation as to its settlement.

In making a political settlement, the Council might well touch on the reserved domain, since
this contains matters frequently the cause of disputes, and the need to write in the legal
limit of action was apparent. During the drafting of the UN Charter similar issues arose,
and the result was Article 2(7):

Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any
State or shall require the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the application of
enforcement measures under Chapter VII.

Certain contrasts with Article 15(8) of the Covenant will be apparent. There is no reference
to international law, the reference is to matters ‘essentially’ within the domestic
jurisdiction, and there is no designation of the authority which is to have the power to
qualify particular matters. Article 2(7) of the Charter was intended to be flexible and non-
technical. At the same time, the restriction was meant to be comprehensive, the use of the

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 formula ‘essentially within’ stemming from the wide implications of the economic and social
provisions of the Charter (Chapter IX).
(ii)  The practice of the political organs
But these intentions have in practice worked against each other. The flexibility of the
provision, and the assumption in practice that it does not override other, potentially
conflicting, provisions have resulted in the erosion of the domain of domestic jurisdiction,
although the drafters intended its reinforcement. Moreover, the word ‘intervene’ has been
approached empirically. Discussion, recommendations in general terms, and even
resolutions addressed to particular states have not been inhibited by the formulation of
Article 2(7).33
Ultimately, the early debates about the meaning of the term ‘to intervene’ have lost their
importance. Over time, Article 2(7) does not serve as an effective restraint on the activities
of the UN.34 This is not due to a narrow interpretation of the term ‘intervention’35 but to a
narrowing of those things which are seen as solely within the domestic jurisdiction of
states. As the Permanent Court had already said in Nationality Decrees:
(p. 439)

The question whether a certain matter is or is not solely within the jurisdiction of a
State is an essentially relative question; it depends on the development of
international relations.36

The implications are far-reaching.

This means that the concept of ‘domestic jurisdiction’ does not denote specific areas which
are clearly defined, irreducible, or in any way inherently removed from the international
sphere. It rather circumscribes areas which, taking into account the situation at issue, are
not even prima facie affected by rules of international law. In order to remove an area from
the sphere of domestic jurisdiction, it is sufficient that this area is regulated by
international law only in certain respects.37 UN organs have taken action on a wide range
of topics dealing with the relations of governments to their own people. Resolutions on
breaches of human rights, the right of self-determination, and democratic governance have
been adopted regularly. If the organ concerned felt that the acts complained of were
contrary to the purposes and principles of the Charter and also that the issue was
‘endangering international peace and security’, a resolution was passed. Certain issues are
regarded as inherently matters of international concern, without the need for express
reference to any threat to international peace and security.38 The Security Council initially
adopted a resolution concerning apartheid only partly on the basis that the situation
‘constitutes a potential threat to international peace and security’.39 But over time the
potential has become actual. In 1992, the President of the Security Council stated that
those economic, social, humanitarian, and ecological factors that could lead to a threat to
peace and security were themselves threats that could justify Security Council action under
Chapter VII.40
As a separate notion in general international law, the reserved domain is mysterious only
because many have failed to see that it stands for a tautology. However, if a matter is prima
facie within the reserved domain because of its character and the issue presented in the
normal case, then certain presumptions against any restriction on that domain may be
created. Thus, the imposition of customs tariffs is prima facie unrestricted by international
law, whilst the introduction of forces into another state is not prima facie an internal matter
for the sending state.41 As with other issues associated with sovereignty, domestic
jurisdiction has content as presumption rather than rule.42

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 Footnotes:
1
  Kelsen (1944) 53 Yale LJ 207; Rousseau (1948) 73 Hague Recueil 167, 171–253; van
Kleffens (1953) 82 Hague Recueil 1, 5–130; Fitzmaurice (1957) 92 Hague Recueil 1, 48–59;
Lauterpacht, Development (1958) 297–400; Verzijl, 1 International Law in Historical
Perspective (1968) 256–92; Koskenniemi (1991) 32 Harv ILJ 397; Schreuer (1993) 4 EJIL
447; Koskenniemi, From Apology to Utopia (2005) ch 4; Besson, ‘Sovereignty’ (2011)
MPEPIL; Crawford in Crawford & Koskenniemi (eds), Cambridge Companion to
International Law (2012) 117; Condorelli & Cassese in Cassese (ed), Realizing Utopia: The
Future of International Law (2012) 14–25; Alvarez, ibid, 26–37; van der Vyver in Shelton
(ed), The Oxford Handbook of International Human Rights Law (2013) ch 16; Rawlings,
Leyland, & Young, Sovereignty and the Law: Domestic, European and International
Perspectives (2013); Glanville, Sovereignty and the Responsibility to Protect (2014);
Chinkin & Baetens (eds), Sovereignty, Statehood and State Responsibility (2015); Glanville
in Bellamy & Dunne (eds), The Oxford Handbook of the Responsibility to Protect (2016) ch
9.
2
  Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949 p
174, 177–8.
3
  The qualifier ‘ultimately’ bears considerable weight. In practice, the sovereignty of most
states is sullied by consent—e.g. the consent of UN member states that are not permanent
members of the Security Council to be bound by the Council’s resolutions. The principle of
consent has retained practical content more in some fields than others, and more in certain
formal settings—e.g. the jurisdiction of courts and tribunals (see chapter 32).
4
  Koskenniemi (2005) 228–33, 240–5. Many consider the term to be outdated: Charney
recommends its eradication as evoking ‘the total independence and autonomy of the state
… a fundamentalist view that is difficult to debate in light of its emotive baggage’: Charney
(1997) 91 AJIL 394, 395; Donnelly (2014) 28 Ethics & Int Affairs 225, 234 (‘appeals to
absolute sovereignty ring increasingly hollow’). See also Ilgen, Reconfigured Sovereignty:
Multi-Layered Governance in the Global Age (2003) 6–35; Radon (2004) 40 Stanford JIL
195; Camilleri in Jacobsen, Sampford, & Thakur (eds), Re-Envisioning Sovereignty: The End
of Westphalia? (2008) 33. On shifts in the meaning and relevance of sovereignty: Spruyt,
The Sovereign State and Its Competitors (1994); Krasner, Sovereignty: Organized Hypocrisy
(1999); Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (2006);
Walker, Sovereignty in Transition (2006); Benvenisti (2013) 107 AJIL 295 (reconceptualizing
sovereignty as trusteeship); Zürn & Deitelhoff in Leibfried et al (eds), The Oxford Handbook
of Transformations of the State (2015) 193.
5
  Although states are not the only entities with international legal personality, there is
certainly a perception that they are paramount: Schreuer (1993) 4 EJIL 447, 455; Crawford,
Chance, Order, Change (2014) ch III. This perception is reaffirmed by scholars of
international relations: Abbott (1989) 14 Yale JIL 335; Jackson, Sovereignty (2007). Cf
Walker in Rawlings, Leyland, & Young (eds), Sovereignty and the Law: Domestic, European
and International Perspectives (2013) 24; Glanville, Sovereignty and the Responsibility to
Protect (2014) 7–9; Walker, Intimations of Global Law (2014) 13.
6
  Crawford, The Creation of States in International Law (2nd edn, 2006) 32–3.
7
  Corfu Channel (UK v Albania), ICJ Reports 1949 p 4, 35; UN Charter, Art 2(4).
8
  Draft Declaration on the Rights and Duties of States, ILC Ybk 1949, 287, Art 3. Cf SS
Lotus (1927) PCIJ Ser A No 10, 25.

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 9
  The maxim may be traced back to the fourteenth-century-jurist Bartolus, who wrote ‘Non
enim una civitas potest facere legem super alteram, quia par in parem non habet
imperium’ (‘For it is not for one city to make the law upon another, for an equal has no
power over an equal’): Badr, State Immunity (1984) 89, citing Bartolus, Tractatus
Repressalium (1394) Quaestio 1/3, §10. Further: Dinstein (1966) 1 Is LR 407.
10
  Cooper (1979–80) 11 Loyola UCLJ 193, 194; Kokott, ‘States, Sovereign Equality’ (2011)
MPEPIL; Weatherall (2014–15) 46 Geo JIL 1151, 1156.
11
  Cf Orwell, Animal Farm (1945) 90; and see Simpson, Great Powers and Outlaw States
(2004); Reinold, Sovereignty and the Responsibility to Protect (2012) 47; Viola, Snidal, &
Zürn in Leibfried et al (eds) (2015) 221–36.
12
  Reinold (2013) 32, 47–50; Cohen, Globalization and Sovereignty (2012) 196–204;
Aalberts, Constructing Sovereignty Between Politics and Law (2012) 147–51; Zürn &
Deitelhoff in Leibfried et al (eds) (2015) 202–5, 209; Li (2016) 38 Hous JIL 465, 484–8.
13
  Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, 1155 UNTS 331, Art
26. Also: Aust, ‘Pacta Sunt Servanda’ (2007) MPEPIL; Villiger, Commentary on the 1969
Vienna Convention on the Law of Treaties (2009) 363–8; Dörr & Schmalenbach, Vienna
Convention on the Law of Treaties (2nd edn, 2018) 467; Reinhold (2013) 2 UCLJLJ 40;
Thirlway, The Sources of International Law (2014) 31; Ziegler & Baumgartner in Mitchell,
Sornarajah, & Voon (eds), Good Faith and International Economic Law (2015) 9–35;
Steinhardt (2013) 107 AJIL 841.
14
  It was one of Kelsen’s two candidates for the grundnorm of international law: Kelsen,
Reine Rechtslehre (1934) 129–30; Kelsen (1936) 10 RITD 253, 254–6. Also: Rigaux (1998) 9
EJIL 325; von Bernstorff, The Public International Law Theory of Hans Kelsen (2010); and
further: chapter 3.
15
  Treaty of Peace between the Allied and Associated Powers and Germany, 28 June 1919,
225 CTS 188.
16
  (1923) PCIJ Ser A No 1, 25. Further: Feinäugle, ‘The Wimbledon’ (2013) MPEPIL. But
the principle operates equally in favour of freedom as constraint: cf the view of the
International Court on reservations by states to multilateral treaties: Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951 p
15, 24.
17
  SS Wimbledon (1923) PCIJ Ser A No 1, 24; Free Zone of Upper Savoy and the District of
Gex (1930) PCIJ Ser A No 24, 12; (1932) PCIJ Ser A/B No 46, 96, 167; Rights of Access to
Danzig Harbour (1931) PCIJ Ser A/B No 43, 142; Interpretation of the Statute of Memel
(1932) PCIJ Ser A/B No 49, 294, 313–14; Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, ICJ Reports 1950 p 221, 227; Fisheries (UK v Norway), ICJ Reports
1951 p 116, 143; Anglo-Iranian Oil Co (UK v Iran), ICJ Reports 1952 p 93, 105, cf 143
(Judge Read, diss); Continental Shelf (Libya/Malta), ICJ Reports 1985 p 13, 22; Nuclear
Tests (Australia v France), ICJ Reports 1974 p 253, 267; ibid, 286 (Judge Gros); 306 (Judge
Petrén); 365–6 (Judges Oneyana, Dillard, Jiménez de Aréchaga, and Waldock, diss) (on
unilateral declarations). Also: Lauterpacht (1949) 26 BY 48; Koskenniemi (2005) 253–4;
Linderfalk, On the Interpretation of Treaties (2007) 280–4; Gardiner, Treaty Interpretation
(2nd edn, 2015) 65–8; Bjorge, The Evolutionary Interpretation of Treaties (2014) 48–54;
Djeffal, Static and Evolutive Treaty Interpretation: A Functional Reconstruction (2016) 263–
7.
18
  Crema (2010) 21 EJIL 681, 691.

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 19
  E.g. Mondev International Ltd v US (2002) 125 ILR 98, 123. Further: Amerasinghe,
Jurisdiction of Specific International Tribunals (2009) 438; Dolzer & Schreuer, Principles of
International Investment Law (2nd edn, 2012) 29–30; Weiler, The Interpretation of
International Investment Law (2013) 31; Bjorge (2014) 43.
20
  Tradex Hellas SA v Albania (1996) 5 ICSID Reports 43, 68–9; SGS Société Générale de
Surveillance SA v Philippines (2004) 8 ICSID Reports 515, 550;
Republic of Ecuador v Occidental Exploration & Production [2007] EWCA Civ 656, [28];
Fraport AG Frankfurt Airport Services Worldwide v Philippines, ICSID Award, 16 August
2007, para 397; Waibel in Hofmann & Tams (eds), International Investment Law and
General International Law (2011) 29, 39–40.
21
  Pulkowski in Broude & Shany (eds), The Shifting Allocation of Authority in International
Law (2008) 67; Crema (2010) 21 EJIL 688; Bjorge (2014) 48.
22
  Navigational and Related Rights (Costa Rica v Nicaragua), ICJ Reports 2009 p 213, 237
(‘A treaty provision which has the purpose of limiting the sovereign powers of a State must
be interpreted like any other provision of a treaty, i.e. in accordance with the intentions of
its authors as reflected by the text of the treaty and the other relevant factors in terms of
interpretation’).
23
  Cf Lake Lanoux (France v Spain) (1957) 12 RIAA 281, 306. Further: De Pascale (1970)
40 ILR 250, 256.
24
  Asylum (Columbia v Peru), ICJ Reports 1950 p 266, 274–5.
25
  Bourquin, L’Etat souverain et l’organisation internationale (1959); Morgenstern, Legal
Problems of International Organizations (1986) 46–68; Amerasinghe, Principles of the
Institutional Law of International Organizations (2nd edn, 2005) 48; Duxbury, The
Participation of States in International Organisations (2011) 166–7; De Brabandère in
French (ed), Statehood and Self-Determination: Reconciling Tradition and Modernity in
International Law (2015) 450–70; Klabbers, An Introduction to International Organizations
Law (3rd edn, 2015) 4–7, 131; Archer, International Organizations (4th edn, 2015) 32–57;
Bederman & Keitner, International Law Frameworks (4th edn, 2016) ch 8.
26
  Simma et al (eds), The Charter of the United Nations (3rd edn, 2012) 85; and further:
chapter 7. On the principle of effectiveness generally: Zappala in Cassese (2012) 105–17.
27
  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), ICJ
Reports 1962 p 151, 162. Also Reparation for Injuries, ICJ Reports 1962 p 174, 185.
28
  SC Res 1373 (2001) and SC Res 1540 (2004).
29
  On the scope and potential limitations of these resolutions: Happold (2003) 16 LJIL 593;
Talmon (2005) 99 AJIL 175; Bianchi (2006) 17 EJIL 881; Hinojosa-Martinez (2008) 57 ICLQ
333. Commenting on the Security Council’s power to legislate more generally: Koskenniemi
(1995) 6 EJIL 325, 326; Szasz (2002) 96 AJIL 901; Talmon (2005) 99 AJIL 175; Tsagourias
(2011) 24 LJIL 539; Joyner (2011–12) 43 Geo JIL 225; Boyle in Cassese (2012) 172–86.
30
  UN Charter, Arts 25, 39, 41–42, 103.
31
  E.g. Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ
Reports 1971 p 16, 294 (Judge Fitzmaurice, diss).
32
  Kelsen, The Law of the United Nations (1950) 769–91; Verdross, Mélanges offerts à
Charles Rousseau (1974) 267. For the practice of UN organs: Higgins, Development (1963)

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 58–130; Oxman, ‘Jurisdiction of States’ (2007) MPEPIL; Zurbuchen (2010) 31 Grotiana 69;
Nolte in Simma et al (3rd edn, 2012) 280–311; Watts (2014) 14 Baltic YIL 137.
33
  Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4, 7; Peace Treaties, ICJ
Reports 1950 p 65, 70–1; Lauterpacht (1958) 270–2.
34
  Goodrich, Hambro, & Simons, Charter of the United Nations (3rd edn, 1969) 68.
35
  Which has been interpreted broadly: Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v US), ICJ Reports 1986 p 14, 107; Conforti, The Law and Practice of
the United Nations (3rd edn, 2005) 143–5. On the interpretation of the term ‘to intervene’
generally: Nolte in Simma et al (3rd edn, 2012) 10–22; Watts (2014) 14 Baltic YIL 137, 151–
2, 157–8.
36
  (1923) PCIJ Ser B No 4, 24.
37
  Nolte in Simma et al (3rd edn, 2012) 292.
38
  On the concept of international concern: Higgins (1963) 77–81.
39
  SC Res 282 (1970). Note that this and other SC resolutions on the same subject were
adopted under Chapter VI.
40
  S/23500 (1992) para 3; Talmon (2005) 99 AJIL 175, 180.
41
  See, however, the opinion of Judge Lauterpacht in Certain Norwegian Loans (France v
Norway), ICJ Reports 1957 p 9, 51–2.
42
  For the decline of the plea of domestic jurisdiction as a preliminary plea before
international courts and tribunals: Interhandel (Switzerland v US), Preliminary Objections,
ICJ Reports 1959 p 6; Peace Treaties, ICJ Reports 1950 p 65, 70–1. Also: Nolte in Simma et
al (3rd edn, 2012) 291; Tams, ‘Interhandel Case’ (2007) MPEPIL.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.
Subscriber: Peace Palace Library; date: 25 January 2021