Alexander Orakhelashvili

Peremptory norms in international law

PART I IDENTIFICATION OF PEREMPTORY NORMS 1. Peremptory Norms as International Public Order 2. The Criteria of Identification of Peremptory Norms and their Specific Groups 3. Distinctive Characteristics of Peremptory Norms: Absolute Character, Non-Derogability and the Effect-Oriented Profile 4. Concepts Cognate to Peremptory Norms 5. Sources of Peremptory Norms PART II EFFECT OF PEREMPTORY NORMS IN GENERAL INTERNATIONAL LAW 6. Impact of Peremptory Norms in the Law of Treaties 7. Peremptory Norms and the Validity of the Actions of States 8. Remedies for Breaches of Peremptory Norms 9. Peremptory Norms and the Allocation of Jurisdiction to States 10. Peremptory Norms and State Immunity 11. The Problem of Subsequent Validation of Breaches of Peremptory Norms PART III PEREMPTORY NORMS AND THE POWERS OF INTERNATIONAL ORGANISATIONS 12. The Applicability of Peremptory Norms to the Acts of International Organisations 13. The Types of Conflicts of the Acts of International Organisations with Peremptory Norms 14. Legal Consequences of the Conflict of Security Council Resolution with Peremptory Norms PART IV PEREMPTORY NORMS AND THE POWERS OF INTERNATIONAL TRIBUNALS 15. Peremptory Norms and International Judicial Jurisdiction 16. Peremptory Norms and the Standing to Bring Claims 17. Peremptory Norms and Friendly Settlement and Discontinuance of Cases PART V EFFECT OF PEREMPTORY NORMS IN NATIONAL LEGAL SYSTEMS 18. Techniques of Interaction of International Jus Cogens with National Law 19. Peremptory Norms and Acts of Foreign States in Private International Law Conclusion Appendix

The interpretation of acts and rules in public international law

INTRODUCTION PART I - THE EFFECTIVENESS OF INTERNATIONAL LEGAL REGULATION 1. Doctrinal Treatment of the Effectiveness of Legal Regulation 2. Characteristics and Implications of the Effectiveness of Legal Regulation PART II - THRESHOLD OF LEGAL REGULATION 3. The Essence of the Threshold of Legal Regulation 4. Customary Law and Inherent Rules PART III - LAW AND NON-LAW IN THE INTERNATIONAL LEGAL SYSTEM 5. Fact as Non-Law and the Limits on its Relevance 6. Interest as Non-Law 7. Values as Non-law 8. Quasi-Normative Non-Law PART IV - THE REGIME AND METHODS OF INTERPRETATION IN INTERNATIONAL LAW 9. Conceptual Aspects of Interpretation 10. Treaty Interpretation: Rules and Methods 11. Treaty Interpretation: Effectiveness and Presumptions 12. Interpretation of Jurisdictional Instruments 13. Interpretation of Unilateral Acts and Statements 14. Interpretation of Institutional Decisions 15. Interpretation of Customary Rules 16. The Agencies of Interpretation PART V - TREATY INTERPRETATION AND INDETERMINATE PROVISIONS OF NON-LAW 17. The Essence of and Response to the Indeterminacy of Treaty Provisions 18. Equity and Equitable Considerations in Treaties CONCLUSION

Jurisdictional immunities of the State (Germany v. Italy; Greece Intervening)

International Court of Justice decision on sovereign immunity from civil claims for wartime atrocities

The Acts of the Security Council: Meaning and Standards of Review

I. The General Framework of the Security Council’s Interference with International Law II. The Impact of Article 103 of the UN Charter III. The Interpretation of Security Council Resolutions 1. The Rules of Treaty Interpretation and their Applicability to Security Council Resolutions 2. Interpretation Methods as Applied to Resolutions Related to Specific Fields of International Law a. Jus ad bellum – The Claims of Implicit or Subsequent Validation by the Security Council of the Unilateral Use of Force b. Jus ad bellum – Claims on the Impact of Security Council Resolutions on the Law of Self-Defence c. Anti-Terrorist Measures: Claimed Impact of Security Council Resolutions on Fundamental Human Rights d. Anti-Terrorist Measures: Security Council Resolution and Detention Contrary to Human Rights and Humanitarian Law Norms e. Measures of Counter-Proliferation: The Possible Impact of Security Council Resolutions on the Law of the Sea

The Impact of Unilateral EU Economic Sanctions on the UN Collective Security Framework: The Cases of Iran and Syria

The European Union’s economic sanctions against Iran and Syria have been both wide-ranging in scope and far-reaching in impacting the lives of ordinary people. It is noteworthy that the bulk of the EU’s sanctions have been adopted without the authority and support of the UNSC—an organ in whose hands the coercive activities are centralized and monopolized according to Chapter VIII of the UN Charter. This chapter describes sanctions regimes introduced by the EU, and then moves to analyze the basis on which they have been adopted. The law applicable to sanctions raises constitutional issues of the relationship between the UN and EU and of the rights and obligations of States under constituent instruments of both organizations. It draws on various options of the relationship between UN and EU focused upon in international judicial practice, and the ways in which EU’s claims to ‘autonomy’ from the UN should be properly handled. As a next step, the legality of the EU’s measures under general international law is examined. It then assesses the propriety of sanctions in the light of broader policy and institutional considerations.

INTERNATIONAL LAW AND GEOPOLITICS: ONE OBJECT, CONFLICTING LEGITIMACIES?

The disciplines of international law and geopolitics have evolved around the same object – the exercise of State power in space. But the interaction between geopolitical and legal categories has not been properly examined yet. Similar to international law, geopolitics focuses on certain, albeit not formally binding, laws that govern or explain the conduct of States in relation to space. There is room for the geopolitical laws reasoning to lead to outcomes that differ from those required under international legal obligations of States. In other cases, geopolitical laws and reasoning could actually explain why certain international legal rules and institutions are what they are. This contribution is the first attempt to study geopolitics and international law in parallel to each other. It is demonstrated that the evolution of geopolitical thinking, whether as part of a particular expansionist or containment agenda or as scientific approach, has constantly reflected on the categories of international law, and also has been used in practice by States to justify their particular conduct in defiance of international legal requirements. At the same time, international law has traditionally left to States the room for pursuing their geopolitical agenda without breaking the requirements of international law. It is here that the significance of geopolitical factors for international law becomes clear, as the allegedly lawful expansionist action by States can lead, and has repeatedly led, to reactions that involve breaches, and potentially damage the integrity, of international law. Despite geopolitical agenda being allegedly lawful, it still has to observe certain geopolitical laws in order to avoid broader negative repercussions both for that agenda and for international law.

Questions of International Judicial Jurisdiction in the LaGrand Case

On 27 June 2001, the International Court of Justice rendered its final decision in the case of LaGrand ( Germany v. United States of America ), which deals with many complex issues of international law. Apart from the very interesting substantive legal issues relating to the regime of consular assistance and death penalty in international law, the Judgment of the Court contains significant principles and reflections as to the essence and scope of international judicial jurisdiction. In contrast to the traditional approach to this question, the Courts Judgment is concerned with practical and specific aspects of jurisdiction in action, rather than dealing with general assumptions and conceptions surrounding the problem. From this point of view, the present contribution examines the significance of LaGrand as a case in which the traditional assumptions on international judicial jurisdiction are tested and reappraised.

Legal Stability and Claims of Change: The International Court's Treatment of Jus Ad Bellum and Jus in Bello

The post-Cold War era has witnessed a number of international conflicts and the attendant claims that the law related to the use of force and armed conflicts have experienced significant changes in consequence of those events and processes. This has been argued extensively in terms of the conflicts of Iraq, Yugoslavia, or Afghanistan. The proof of legal change is, however, difficult to establish as it is subject to high standard of proof and at the same time legal changes can damage the consistency and credibility of the system. As the International Courts consistent jurisprudence demonstrates, the argument of alleged legal changes in the legal regime governing armed conflicts are not based on the consistent reasoning. This is explained at the example of the Courts treatment of a number of fields, such as the consent to the use of force, proof of the facts of the use of force, the law of self-defence, and the law of belligerent occupation. The Courts consistent jurisprudence not only undermines the argument of legal change but also demonstrates that the legal position in this field maintains its separate existence in relation to power and politics. The strict application of legal norms is an inevitable requirement for a transparent legal system.

Research handbook on jurisdiction and immunities in international law

Contents: 1. State Jurisdiction in International Law: Complexities of a Basic Concept Alexander Orakhelashvili 2. The Concept of Jurisdiction in International Law Cedric Ryngaert 3. Universal Jurisdiction: Concept, Logic and Reality Sienho Yee 4. Jurisdiction of States and the Law of the Sea Yoshifumi Tanaka 5. State Immunity from Jurisdiction between Law, Comity, and Ideology Alexander Orakhelashvili 6. Shared Foundations and Conceptual Differentiation in Immunities from Jurisdiction J Craig Barker 7. Immunity from the Criminal Jurisdiction of National Courts Elizabeth Franey 8. The UK State Immunity Act 1978: History, Scope and Relation to International Law Alexander Orakhelashvili 9. Treaties on State Immunity: the 1972 and 2004 Conventions Alexander Orakhelashvili 10. Foreign State Immunity: A Private International Law Analysis Richard Garnett 11. The Status of Armed Forces in Public International Law: Jurisdiction and Immunity Aurel Sari 12. Immunity from Execution Xiaodong Yang 13. Torture, Jurisdiction and Immunity: Theories and Practices in Search of One Another Francois Larocque 14. Immunities and International Criminal Tribunals Robert Cryer 15. Jurisdictional Immunity of International Organisations: from Abstract Functionality to Absolute Immunity Alexander Orakhelashvili Index

State Immunity in National and International Law: Three Recent Cases Before the European Court of Human Rights

The issue of state immunity in the case of human rights violations has been controversial in the last decade, partly due to the absence of international judicial pronouncements. The bringing of the three cases previously litigated in the United Kingdom and Ireland before the European Court of Human Rights was supposed to reduce this uncertainty. However, decisions of the Court seem to have failed to meet these expectations. The Court has failed to properly examine whether the sources of international law support the scope of state immunity as portrayed in the decisions. Furthermore, the decision on Al-Adsani is deficient in that it fails to respect the difference between sovereign and non-sovereign acts, and the effects of peremptory norms with regard to state immunity.