Antonios Tzanakopoulos

Barcelona Traction at 40: The ICJ as an Agent of Legal Development

The article revisits the Barcelona Traction judgment of the International Court of Justice, rendered forty years ago. It evaluates the lasting influence of the Courts pronouncements on the nationality of corporations and on obligations erga omnes, and uses the case to illustrate the Courts role as an influential agent of legal development. In this respect, it identifies a number of factors that can help to explain under which circumstances judicial pronouncements are likely to shape the law.

Introduction: Domestic Courts as Agents of Development of International Law

This introductory paper to the symposium hosted by the Leiden Journal of International Law , and edited by the authors, deals with the function of domestic courts as agents for the development of international law. The paper ‘sets the scene’ for the contributions to the symposium, which seek to trace the impact of domestic courts in the development of canonical areas of international law, such as jurisdiction, immunity, state responsibility, the law of international organizations/human rights, and the law of armed conflict/conduct of hostilities. It discusses the formal quality and actual influence of domestic-court decisions on the development of international-law, and introduces the concept of ‘agents’ of international-law development. This is the analytical perspective that the contributions to the symposium adopt.

National Treatment and MFN in the (Invisible) EU Model BIT

This article discusses the potential provisions on national treatment and MFN to be included in a future EU Model BIT against the background of the leaked draft text of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) investment chapter. It concludes that the EU treaty practice seems to be closer to investment protection models influenced by NAFTA, such as those prevalent in the Canada and US Model BITs, and that a future EU Model BIT along these lines will depart significantly from the investment treaty practice of EU Member States.

Nicaragua in the International Court of Justice and the Law of Treaties

This chapter assesses the impact of the ‘Nicaraguan’ cases, i.e. cases in which Nicaragua has been involved before the International Court of Justice, on the law of treaties. It focuses on two main aspects: the first is the relationship between various principles and (or) maxims of interpretation and the customary rules of interpretation reflected in Articles 31–33 of the Vienna Convention on the Law of Treaties. The second is the relationship between treaty and customary law, considered against the background of the quintessential Nicaraguan case, the Military and Paramilitary Activities in and against Nicaragua.

Sanctions Imposed Unilaterally by the European Union: Implications for the European Union’s International Responsibility

This chapter deals with the responsibility of the EU under international law for ‘unilateral sanctions.’ Like States, international organizations may also adopt unilateral sanctions against States or other international organizations. The EU has been particularly active in this respect. After some terminological clarifications regarding sanctions and countermeasures, the chapter examines EU practice in imposing unilateral sanctions on third States and sets out the conditions for legal resort to such sanctions. The chapter then proceeds to discuss the potential engagement of the international responsibility of the EU for the imposition of sanctions. If such measures are attributable to the EU, and they are in breach of the EU’s international obligations, then they must be justified as countermeasures. Otherwise the EU’s international responsibility will be engaged. The chapter then examines the mechanisms for implementing that international responsibility on the part of the States that have been unlawfully targeted by EU sanctions.

Sharing Responsibility for UN Targeted Sanctions

International organisations often lack operational capacity, but may command significant normative power over states. By contrast, states have organs with significant operational capacity. Adoption of sanctions by the UN Security Council under Chapter VII of the UN Charter would remain a dead letter without enlisting the capacity of states to implement these measures on the ground. The UN and its member states thus both contribute to a single harmful outcome. International responsibility for this is shared in practice, as demonstrated by recent developments in domestic and regional international courts: states are held responsible by domestic or regional international courts, and are forced to disobey the Security Council in order to comply with their human rights obligations. In turn, the states put pressure on the Security Council to reform the offending regime, forcing the UN to comply with its own international obligations.

Pacta Sunt Servanda versus Flexibility in the Suspension and Termination of Treaties

This paper explores the presumptive tension between the pacta sunt servanda rule (the rule that commitments ought to be honoured) and the possibility for unilateral or consensual suspension or termination of treaties. It argues that the pacta sunt servanda rule seems able to accommodate the various methods of suspension or termination: under the general international law of treaties, termination or suspension is not actually unilateral; only the invocation of relevant grounds is. Further, both grounds for suspension or termination, as well as defences under the law of responsibility (which achieve results similar to suspension) are narrow and thus hard to invoke successfully. Finally, the law allows states to devise their own exit clauses in treaties. This leads to very broad exit clauses allowing for unilateral termination or withdrawal. This however being part of the pactum, it does not formally put pressure on the pacta sunt servanda rule.