Robert D. Sloane

On the Use and Abuse of Necessity in the Law of State Responsibility

Necessity, necessità, is Machiavelli’s guiding principle . . . that infringing the moral law is justified when it is necessary. Thus is inaugurated the dualism of modern political culture, which simultaneously upholds absolute and relative standards of value. The modern state appeals to morality, to religion, and to natural law as the ideological foundation for its existence. At the same time it is prepared to infringe any or all of these in the interest of self-preservation. —J. M. Coetzee Recent jurisprudence in investment arbitration, almost all of which originated in disputes arising out of Argentina’s turn-of-the-century fiscal crisis, has raised difficult questions about the existence, nature, and advisability of necessity as a defense to state responsibility. The jurisprudence has contributed to a sophisticated literature focusing on necessity’s role in the special context of investment arbitration. But the growing prominence of necessity pleas in international law has not been so limited. Nor will its effects be. In the first place, investor-state arbitral jurisprudence contributes to the evolution of general international law. Investment tribunals invoke the latter, for example, to inform their interpretation of bilateral investment treaties (BITs) or to cure lacunae in the law. More significantly, beyond the realm of investment arbitration, the past few decades have seen a striking growth in necessity pleas in fields ranging widely across the landscape of international law.

Measures Necessary to Ensure: The ICJ's Provisional Measures Order in Avena and Other Mexican Nationals

This article analyzes the provisional measures order of the International Court of Justice (ICJ) in Avena and Other Mexican Nationals, the first provisional measures order issued by the ICJ after its decision in LaGrand holding that such orders have binding effect. After reviewing the background to Mexicos action, the article focuses on Avenas place in the Courts provisional measures jurisprudence, its international legal significance, its potential effects, if any, on the ICJs perceived institutional legitimacy and authority, and its legal and political consequences for the United States. In particular, the article examines the domestic legal implications of the Courts order for the United States in the context of developing international norms on capital punishment and the due process standards governing its implementation in states that continue to practice it.

The International Criminal Tribunal for Rwanda

This essay will appear as the ninth chapter of The Rules, Practice, and Jurisprudence of International Courts and Tribunals (Chiara Giorgetti ed., Brill, forthcoming). It covers the origin, establishment, organization, jurisdiction, and procedures of the International Criminal Tribunal for Rwanda (ICTR). It then explains and analyzes a selection of the ICTR’s significant contributions to international criminal jurisprudence, covering, in particular, the Akayesu; Kayishema & Ruzindana; Nahimana, Barayagwiza & Ngeze (“The Media Case”); and Baglishema cases. The issues therefore include, among others, specific intent in the definition of genocide, rape as a modality of genocide, jurisdiction to prosecute violations of Additional Protocol II of 1977, and incitement to genocide.

The Incident at Cavalese and Strategic Compensation

Penny wise, pound foolish. —Benjamin Franklin, Poor Richard’s Almanack In 1953 the United States ratified the North Atlantic Treaty Organization’s Status of Forces Agreement of 1951 (SOFA), which set forth “conditions and terms which will control the status of forces sent by one state, party to the Agreement, into the territory of another state, party to the Agreement.” The drafters foresaw that the presence and training of foreign military forces within and between their territories would probably, if not inevitably, cause injury to civilians, giving rise to claims that, if not settled quickly and satisfactorily, could spark incidents disruptive to their cooperation in mutual defense. To this end, the SOFA established ajurisdictional regime designed to minimize the political friction these incidents threatened to generate, by providing prompt and manifestly fair settlement procedures. The SOFA’s jurisdictional framework protects nationals of a foreign military force from the criminal processes of the alienjurisdiction in which they reside and train, yet permits injured citizens of the host state to pursue civil damages for the tortious acts of foreign forces without fear that their claims might receive prejudicial treatment in the foreign state’s local courts.