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Strategically Created Treaty Conflicts and the
Politics of International Law
Treaty conflicts are not merely the contingent or inadvertent byproducts of the increasing juridification of international
relations. In several instances, States have deliberately created
treaty conflicts in order to catalyse changes in multilateral
regimes. Surabhi Ranganathan uses such conflicts as context to
explore the role of international law, in legal thought and
practice. Her examinations of the International Law
Commission’s work on treaties and of various scholars’ proposals
on institutional action, offer a fresh view of ‘mainstream’ legal
thought. They locate in a variety of writings a common faith in
international legal discourse, built on liberal and constructivist
assumptions. Ranganathan’s three rich studies of treaty conflict,
relating to the areas of seabed mining, the International Criminal
Court, and nuclear governance, furnish a textured account of the
specific forms and practices that constitute such a legal
discourse, and permit a grounded understanding of the
interactions that shape international law.
Surabhi Ranganathan is an Assistant Professor of Law at the
University of Warwick. She was previously a Junior Research
Fellow at the Lauterpacht Centre for International Law and King’s
College, Cambridge. She is the Assistant Editor of the Cambridge
Companion to International Law (2012) edited by James Crawford
and Martti Koskenniemi.
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cambridge studies in international and comparative law
Established in 1946, this series produces high quality scholarship in the fields of
public and private international law and comparative law. Although these are
distinct legal sub-disciplines, developments since 1946 confirm their
interrelations.
Comparative law is increasingly used as a tool in the making of law at
national, regional and international levels. Private international law is now
often affected by international conventions, and the issues faced by classical
conflicts rules are frequently dealt with by substantive harmonisation of law
under international auspices. Mixed international arbitrations, especially those
involving state economic activity, raise mixed questions of public and private
international law, while in many fields (such as the protection of human rights
and democratic standards, investment guarantees and international criminal
law) international and national systems interact. National constitutional
arrangements relating to ‘foreign affairs’, and to the implementation of
international norms, are a focus of attention.
The series welcomes works of a theoretical or interdisciplinary character, and
those focusing on the new approaches to international or comparative law or
conflicts of law. Studies of particular institutions or problems are equally
welcome, as are translations of the best work published in other languages.
General Editors
James Crawford SC FBA Whewell Professor of International Law,
Faculty of Law, University of Cambridge
John S. Bell FBA Professor of Law, Faculty of Law, University of
Cambridge
A list of books in the series can be found at the end of this volume.
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Strategically Created Treaty
Conflicts and the Politics of
International Law
Surabhi Ranganathan
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University Printing House, Cambridge CB2 8BS, United Kingdom
Cambridge University Press is part of the University of Cambridge.
It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning and research at the highest international levels of excellence.
www.cambridge.org
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© Surabhi Ranganathan 2014
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2014
A catalogue record for this publication is available from the British Library
Library of Congress Cataloging-in-Publication Data
Ranganathan, Surabhi, author.
Strategically created treaty conflicts and the politics of international law /
Surabhi Ranganathan.
pages cm – (Cambridge studies in international and comparative law ; 113)
ISBN 978-1-107-04330-5 (hardback)
1. International law. 2. Treaties. I. Title.
KZ3410.R36 2014
341–dc23
2014019425
ISBN 978-1-107-04330-5 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
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Contents
page xi
xv
xix
xxii
xxv
Foreword
Preface
List of abbreviations
Table of cases and procedural documents
Table of treaties and other international instruments
Introduction
1
1
3
Strategically created treaty conflicts
On treaty conflict and the questions that
follow
3
The challenged Court, and other stories
Legal doctrine on treaty conflict
Law and politics in confluence
3
8
16
Between epiphenomenality and lawfare
17
One reformulation of that question about
international law
Epiphenomenality
Lawfare
Which?
18
20
23
27
The argument of this book
28
28
31
Outline of the chapters
41
Part I
2
28
A dual analysis
Key findings
Unpacking ideas
International law thought
45
Writing the ‘principle of political decision’ into the
law of treaties
47
v
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contents
Introduction
47
Outline of the argument
49
VCLT Article 30 and its discontents
52
A reductive view of treaty conflict
No fetters on the exercise of political decision
53
55
Explaining the principle of political decision
56
Compatibility with fundamental principles
Imprimatur of the VCLT
A space for responsive politics
A caveat on stability and change
56
57
58
60
Competing philosophies of international law?
61
Previous formulations
Indicative of complete philosophies of international
law . . .
. . . or crises of confidence (but not lack of faith)?
Between philosophy and anxiety
63
66
66
Lauterpacht
Fitzmaurice
Waldock
The ILC
67
71
75
79
International law as an ILC project
3
61
82
The fifth element
A long view?
83
89
Eddies in the mainstream
93
The idea of effective implementation of treaties
Three variations on a theme
Approximate application of treaties
95
95
99
Lauterpacht and South-West Africa
After Lauterpacht
Misreadings in Gabčı́kovo–Nagymaros
Approximate application and international law
100
104
106
109
Compliance management
113
The ‘new sovereignty’ and the managerial approach
Treaty adaptation
Expectations of law
Accommodation via treaty coordination or regime
interaction
125
Beyond resolution: from treaty conflict to institutional
conflict
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120
123
126
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Treaty interaction
Justification for treaty interaction
127
129
Conceptions of international law
Conclusion
Part II
4
140
143
Treaty conflicts in practice
145
Notions of ocean: the dispute over deep seabed
mining
Back to the future?
An overview of the conflict
The conventional regime
147
147
149
152
Background to the LOSC
The Part XI regime
Pioneer investor provisions
The common heritage principle in Part XI and
Resolution II
152
155
158
159
The Reciprocating States Regime
161
Domestic legislation
International agreements
161
163
Conflict between the LOSC and the RSR
164
A treaty conflict?
Divergences between the LOSC and the RSR
The situation in the 1980s
Principles underpinning the RSR and the LOSC
164
165
165
168
Conflict to compromise: two key moments
172
The Midnight Agreement and Exchange of Notes, 1987
The Implementation Agreement, 1994
Dynamics of compromise
173
174
176
Under the PrepCom: 1983–9
The making of the Implementation Agreement
176
192
International law and the dynamics of compromise
199
Document-rattling: the importance of legal forms
Key moves in making legal claims
Institutional forums
200
203
208
Conclusion
5
vii
210
Courting the United States? The International
Criminal Court and Article 98 agreements
Introduction
The United States’ mistrust of the ICC: background
and manifestations
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212
217
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Conflict
221
The Rome Statute regime for investigation and
prosecution
Bilateral immunity agreements
Conflict between the Rome Statute and the BIAs
221
224
225
The Court in practice, 2002–10
234
Self-referrals by Uganda, the DRC and the CAR
Sudan’s referral by the Security Council and a shift
in US policy
235
242
The OTP and managerialism
246
The early phase
Post the Sudan referral
248
258
A strategy for external communications
265
‘An idea whose time has come’
‘A judicial institution operating in a highly political
environment’
‘No longer a theoretical construct, but a tangible court’
A review of the OTP’s activities from 2002 to 2010
269
271
274
Compliance with the Court
The OTP’s implementation of the Rome Statute
The turn to ‘the law’
6
267
274
276
277
The evolving Court
280
Fissions in the nuclear order: the India–US Nuclear
Deal and the nuclear-governance regime
Introduction
The nuclear-governance regime
282
282
288
Non-proliferation
Safeguards
Nuclear energy
Disarmament
289
290
293
294
The India–US Nuclear Deal
295
The 2005 Joint Statement: a break from the past
The 123 Agreement: terms of the Deal crystallised
295
299
Treaty conflict
Implications of the Deal
302
306
Threat 1: vertical proliferation by India
Threat 2: horizontal proliferation by India
Threat 3: impact on the programmes and postures of
other States
Threat 4: erosion of the NPT-based nuclear-governance
regime
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310
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From conflict to accommodation
316
The process of implementation
Rhetoric of accommodation
Attempts to reaffirm the NPT
317
331
337
Accommodation and international law
340
‘Multilateralising’ the Deal: the sanction of
international forums
Legal forms and discourse
Some implications of accommodation
340
345
348
Conclusion, and afterword on the Deal
351
Conclusion
7
ix
355
The politics of international law
Two inquiries in one
Treaty conflict in thought and practice
357
357
360
A reading of legal thought
Three studies of practice
360
363
Implications and further questions
Appendix 1
Appendix 2
Appendix 3
Appendix 4
Appendix 5
Appendix 6
366
Seabed mining policies of LOSC, Part XI,
Annexes III and IV
Pioneer investor provisions of Resolution II
Alterations made by the 1994 Implementation
Agreement
Limits to the Rome Statute’s obligation to
cooperate
Sample bilateral investment agreement
The 123 Agreement compared with other
agreements for civil nuclear cooperation
Bibliography
Index
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374
376
380
382
384
396
430
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Foreword
International legal scholarship tends to address the political substrate
of international law in one of two extreme modes: either by not dealing
with it at all and engaging only with the doctrinal surface; or by being
entirely consumed with it and reducing doctrinal form to insignificance. In Dr Ranganathan’s chosen field of inquiry – treaty conflict –
these modes involve either the fixed assumption that treaty conflicts
are inadvertent by-products of the increasing numbers of treaties, to be
resolved by application of formal rules and procedures; or that treaty
conflicts merely confirm the epiphenomenal character of international law.
Dr Ranganathan challenges both these approaches. Arguing that
treaty conflicts are often strategically created by States for the purpose
of catalysing changes in multilateral legal regimes, she builds upon, and
finesses, existing understandings in four respects.
First, she departs from a long tradition of argument over the appropriate definition of the concept of ‘treaty conflict’ (does it include only
instances where treaties provide for mutually exclusive obligation, or
also those of incompatibilities between rights and obligations?), showing that from the perspective of their impact upon international relations there is no distinction between the two. A conflict between a right
granted by one treaty and an obligation provided under another may,
depending upon the context, involve a greater challenge to the stability
and coherence of an existing legal regime than an outright conflict of
obligations. Denying to the former the status of a treaty conflict properly so-called makes little difference. Dr Ranganathan, instead, calls
attention to other features of treaty conflicts that may be more important: the strategic context; the lack of identity between their parties,
bringing into play the doctrinal restrictions of the pacta tertiis rule; and
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foreword
the possibility, through a cleverly leveraged conflict, of challenging a
hard-won multilateral treaty regime through a bilateral or ‘small-group’
treaty.
Second, she shows that treaty conflicts that display these characteristics are not fully or adequately addressed through current legal
rules, whether those provided in the Vienna Convention on the Law
of Treaties or those suggested, in numerous works, as rules of thumb
for reconciling or allocating priority between conflicting treaties. The
problem does not lie with the rules themselves. Dr Ranganathan,
following Jan Klabbers (Treaty Conflicts and the European Union,
Cambridge University Press, 2009) argues that legal rules cannot
address such conflicts unless they depart from foundational principles
of treaty law. Alternative proposals, by Hersch Lauterpacht amongst
others, infringe or ignore the pacta tertiis rule, the rule that treaties
between different parties are res inter alios acta, and States’ freedom to
enter into treaties.
That legal doctrine cannot offer satisfactory solutions to a variety
of treaty conflicts may lead to the conclusion that there is little
point in further analysis, that international law can contribute little to
regulating a phenomenon that nonetheless challenges its own systemic
character and, worse still, that we must accept the critique that international law is reduced to a form of ‘managerialism’. Dr Ranganathan’s
further contribution lies in challenging these conclusions.
Third, by way of detailed studies of treaty conflicts strategically created in order to challenge, respectively, the deep seabed mining regime
under the UN Convention on the Law of the Sea, the International
Criminal Court established by the Rome Statute, and the nucleargovernance regime underpinned by the Nuclear Non-Proliferation
Treaty, she shows that international law is neither purely epiphenomenal nor purely instrumental to politics. In truth, legal forms play a role
in framing the scope and terms of the conflict, mediating interactions
and moderating outcomes. She is careful not to suggest that the limits
introduced by international legal practices are necessarily for the good –
they may indeed be obstructive to some interests and from some perspectives – but she does maintain that they are real, significant and not
easily wished away; reminders that there is indeed a ‘system’ of international law, that becomes visible precisely in the moments of challenge
that arise from treaty conflicts. The three studies encompass a range of
socio-legal materials, and offer rich analyses of three distinct and topical issues.
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xiii
Dr Ranganathan, finally, uses treaty conflicts as a prism to explore the
conceptions of international law underlying a range of scholarship that
she describes as ‘mainstream’: writings in the context of the
International Law Commission’s efforts to identify an appropriate conflict rule, and works on treaty implementation – from Lauterpacht and
Rosenne’s doctrine of approximate application to the compliance scholarship of the US academy, to recent work on regime interaction (for
instance, Margaret Young, Saving Fish, Trading Fish, Cambridge University
Press, 2011). These works are dispersed in time and tradition, but, as she
shows, they have in common their engagement with the politics of
international law and their ultimate conception of law, not as rules or
procedures, but as a discourse anchored in both. She argues that this
conception is founded on liberal and constructivist assumptions about
international law; on this view, engaging in a legal discourse has (or at
least can have) the effect of advancing the rule of law by moderating
positions and outcomes; the very experience of engaging through law
can strengthen respect for the rule of law. She is largely sympathetic
with, though occasionally sceptical of, the liberal assumption; she
rightly does not seek to prove or disprove constructivist positions. But
her reading finesses summary judgments, whether of naı̈ve idealism or
rigid doctrinalism, often visited upon international law’s mainstream.
In these ways, her work aims to get to the heart of what makes
international law, in legal thought and in the practice of international
relations. It will be for readers to judge its success; but it is on any view a
fine first achievement by a promising scholar.
James Crawford
Lauterpacht Centre for International Law
University of Cambridge
7 April 2014
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Preface
It is difficult – for anyone, I imagine – to reconstruct the process by
which one comes to write the book that one writes. Many factors shape
the choice of a project and the way one goes about developing it. I think
the early trigger for this book was my desire to explore the paradoxes
revealed by one event: the India–US Nuclear Deal. But that exercise grew
into a much larger exploration of strategically created treaty conflicts
and what they might teach us about the politics of law.
The Nuclear Deal was announced in 2005, revealed in specific bilateral form in August 2007, and pronounced nearly dead a few weeks
later. In the course of these developments, it had made some news in
the United States, where I was then based, and had a compelling hold on
public debate back home, in India, where it was variously regarded as
a major foreign policy triumph (in his January 2014 exit interview, the
two-term Indian Prime Minister, Manmohan Singh, identified it as his
greatest moment in office), and as a foreign policy disaster that had
signed away India’s autonomy in international relations to the United
States. In a country dogged by massive corruption scandals, rocketing
inflation, fierce debates over social and economic spending, and controversies relating to the deployment of the military in Kashmir, the
northeast, and against Maoists, the Nuclear Deal was the only issue on
which the government was challenged through a no-confidence
motion.
The delirium surrounding the Deal was to a large extent connected to
expectations that, energy benefits aside, it would boost India’s nuclear
weapons programme and imply US, and international, acceptance of
the same, paving the way perhaps for that sixth seat on the UN Security
Council. But here was the paradox. While neutralising domestic opposition entailed emphasising, in India, these aspects of the Deal, the bid
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for international acceptance was based on the claim that the Deal was
unconnected to India’s nuclear weapons programme and left unaffected the international legal regime for nuclear non-proliferation
and disarmament, underpinned by the Nuclear Non-Proliferation
Treaty (NPT).
I became interested in the question whether there was indeed, legally
speaking, a treaty conflict between the Deal and the NPT – it seemed to
me that I could build a strong argument both in favour, and against (and
indeed some of these arguments were being made in public debate) –
and, if so, whether there was any particular legal solution that could be
applied to it. Gradually, the complexities in answering both questions
became apparent: the ‘conflict’ was less a matter of determination than
perception and representation, but, even accepting that there was a
conflict, there was no easy way of getting around the attributes that
made it legally intractable: it was a strategic conflict, and one State party
to one treaty (the Deal) – India – could claim to have no legal obligation
to respect the other (the NPT). What kind of legal ‘solution’ could be
proposed for such a situation? Even if one was proposed, would it be
regarded by the relevant parties?
I began to see, also, that the small question, of treaty conflict between
the Deal and the NPT, actually provided a context in which to explore
many other questions, and anxieties, that no doubt all students of
international law feel from time to time, and most of all when faced
with the fragility of, and political subtext to, legal rules: what actually is
international law? Is it really law, if States simply replace rules with
others when it suits them to? How does it work? Why have so many
believed it is for so long? And then more specifically: What happens
when States seem to replace one treaty by another? Particularly when
only some States party to one treaty replace it with another in their
dealings with each other, or with third States? Is there an appropriate
definition of treaty conflict? Are there effective legal solutions to such
conflicts? How else are treaties to be protected? Why does the Vienna
Convention on the Law of Treaties (VCLT) take the approach it does?
Does the VCLT approach have any relevance to practice? And to square
the circle: What is the practice of treaty conflicts? Does it tell us anything about the role and influence of international law?
These questions form the subject of this book. I do not pretend to have
provided the answers to them, but I have offered my answers, in the hope
of perpetuating that broad conversation that – I have suggested – sustains and enriches international law. There are many people who
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guided and helped me in developing both questions and answers, and in
completing this work, and I owe them my sincerest thanks.
First, and above all, to James Crawford. James supervised the PhD
thesis on which this book is based with exceptional patience and
encouragement, and continued to advise on the development of the
book. Without his careful scrutiny of my writing and his exhortations to
‘finish!’, I would not have reached the point of writing this preface.
Several others also played a role in guiding my thoughts, on the book
as a whole, or on specific sections of it. I owe thanks, in particular, to
Jan Klabbers, Martti Koskenniemi and Guglielmo Verdirame, for generous discussions on the project as a whole, and for very insightful comments on specific chapters. Many friends provided careful assessments
of specific portions: no doubt, if and when they read this book, Douglas
Guilfoyle, Jessie Hohmann, Sarah Nouwen, Federica Paddeu, Tiina
Pajuste, Mieke van der Linden and Sara Wharton, will recognise portions
where their comments have joined the text. In addition to James, Rohit
De and T. C. A. Ranganathan read through the full manuscript and provided valuable feedback on the argument as a whole. Sumati Dwivedi’s
edits were a marvel; her several hundred comments, suggestions and
corrections, for each chapter, have shaped both language and substance.
Many more gave generously of their time. I am very grateful to the
late R. P. Anand (who met me despite his failing health and gave both
advice and books), Ben Batros, Giovanni Bassu, P. R. Chari, B. S. Chimni,
P. S. Das, Matthew Heaphy, David Koller, Sunil Pal, Rod Rastan,
Manpreet Sethi, O. P. Sharma, Yogesh Tyagi, Siddharth Varadarajan,
John Washburn, and a few others who prefer to remain unnamed, for
their advice on both conceptual and factual matters.
While a book takes shape in the mind, it needs material conditions to
flourish. My doctoral research and travel were made possible by the
Gates Trust, the J. C. Hall Scholarship at St John’s College, and an
Overseas Research Scholarship, and by the excellent working and living
environments provided by the Cambridge Faculty of Law and St. John’s
College. My post-doctoral time at King’s College, and at the Lauterpacht
Centre for International Law, has been absolutely fantastic: each has
provided both intellectual stimulation and companionship, and very
generously accommodated the disturbances caused by my book writing.
I especially owe thanks to Eva Nanopoulos for relieving me from admissions work, my office-mate Tiina for monitoring my progress, and Karen
Fachechi and Anita Rutherford for providing administrative guidance
and support at various points.
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I have benefitted enormously from presentations and discussions at
workshops in America, Europe and India. The book draws upon these
conversations, and on publications that grew from them, and I am
extremely grateful to all who contributed to both. Among others, and
in addition to those already named, Eyal Benvenisti, Samantha Besson,
Lucas Lixinski and Michael Waibel provided instructive chats on specific conceptual points, and Sophie Chapman, Mirina Grosz, Paula Haas,
Nayanika Mathur and Pallavi Raghavan provided perspectives from the
vantage point of their own disciplines. I also owe thanks to Lorenzo
Cassini, Simon Chesterman, Angelina Fisher, the late Thomas Franck,
Kirsty Gover, Benedict Kingsbury and Euan Macdonald for development
of the early research proposal while I was at NYU, and for their mentorship. Gauri and Gittu Modi in New York, Anubhuti Agrawal and Avirup
Nag, Sumona Bose and Ashwin Bishnoi, Shivani Mathur, and Kriti
Kapila in London, provided house room and home comforts on several
research trips.
This book would not exist at all if it had not been for the stellar
support given by Cambridge University Press. I am extremely grateful
to Finola O’ Sullivan, Elizabeth Spicer, Elizabeth Davey, Gillian Dadd,
Martin Gleeson, Richard Woodham and others for encouraging the
work and accommodating delays.
Without Rohit’s arguments, encouragement and very good cooking,
the process of research and writing would have lacked sparkle. Without
my family’s affection, support and humour, the book could not have
been completed. I am grateful to my nana and nani, Yashbir and Nirmal
Das, for cheerfully tolerating the many times I shut myself up to work
during my (and their trips) to Bombay, and to my father Ranganathan, my
mother Namita and my brother Jayant for putting up with all my grouching and hair-tearing in Bombay and Delhi. This book is dedicated, with my
love, to them, and to 15C Shanaz, where it had its start and its end.
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Abbreviations
123 Agreement
ASIL
ASP
ASPA
AU
BIA
CACJ
CAR
CICC
CJEU
CTBT
Deal
DRC
EC
ECJ
EES
ENDC
EU
Euratom
FMCT
FRG
G8
G77
GAL
GAOR
GATT
GNEP
Bilateral agreement for nuclear cooperation
concluded by the United States
American Society of International Law
Assembly of States Parties
American Servicemembers’ Protection Act
African Union
Bilateral immunity agreement
Central American Court of Justice
Central African Republic
Coalition for the ICC
Court of Justice of the European Union
Comprehensive Test Ban Treaty
India–US Nuclear Deal
Democratic Republic of the Congo
European Community
European Court of Justice
Group of Eastern European States
Eighteen Nation Committee on Disarmament
European Union
European Atomic Energy Community
Fissile Materials Cut-off Treaty
Federal Republic of Germany
Group of 8
Group of 77
Global Administrative Law
General Assembly Official Records
General Agreement on Tariffs and Trade
Global Nuclear Energy Partnership
xix
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list of abbreviations
IAEA
ICC
ICJ
ILC
ILM
INFCIRC
Interim
Agreement
ISA
ISSA
ITER
LOSC
LRA
MTCR
NATO
NGO
NIEO
NNWS
NPT
NSG
NSSP
NWS
OSPAR
Convention
OTP
Part I Guidelines
Part II Guidelines
PCIJ
PrepCom
Provisional
Understanding
PSI
PTC
International Atomic Energy Agency
International Criminal Court
International Court of Justice
International Law Commission
International Legal Materials
Information Circular
Agreement concerning Interim Arrangements
relating to Polymetallic Nodules of the Deep
Seabed
International Seabed Authority
India-Specific Safeguards Agreement
International Thermonuclear Experimental
Reactor
United Nations Convention on the Law of the Sea
Lord’s Resistance Army
Missile Technology Control Regime
North Atlantic Treaty Organization
Non-governmental organisation
New International Economic Order
Non-nuclear-weapons States
Nuclear Non-Proliferation Treaty
Nuclear Suppliers Group
Next Steps in Strategic Partnership
Nuclear-weapons States
Convention on the Protection of the Marine
Environment of the North-East Atlantic
Office of the Prosecutor
NSG Guidelines for Nuclear Transfers
NSG Guidelines for Transfer of Nuclear-Related
Dual Use Equipment, Materials, Software, and
Related Technology
Permanent Court of International Justice
Preparatory Commission
Provisional Understanding Regarding Deep
Seabed Matters between Belgium, France,
Germany, Italy, Japan, the Netherlands, the
United Kingdom and the United States
Proliferation Security Initiative
Pre-Trial Chamber
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list of abbreviations
Rome Statute
RSR
SCN
SIPRI
SOFA
TRIPs
UAE
UNCLOS III
UNEP
UNGA
UNSC
UNTS
UPDF
USSR
UST
VCLT
WHO
WTO
xxi
Rome Statute of the International Criminal Court
Reciprocating States Regime
Special Commission
Stockholm International Peace Research Institute
Status of Forces Agreement
Trade-Related Aspects of Intellectual Property
Rights
United Arab Emirates
Third United Nations Conference on the Law of
the Sea 1973–82
United Nations Environmental Programme
United Nations General Assembly
United Nations Security Council
United Nations Treaty Series
Ugandan People’s Defense Forces
Union of Soviet Socialist Republics
United States Treaties and Other International
Agreements
Vienna Convention on the Law of Treaties
World Health Organization
World Trade Organization
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Table of cases and procedural
documents
Admissibility of Hearings of Petitioners by the Committee on South
West Africa, Advisory Opinion (1956) ICJ Rep 23 100, 101, 106
Separate Opinion of Sir Hersch Lauterpacht (1956) ICJ Rep 35 96, 99,
101–104, 105, 110–111, 112–113
Application of the Interim Accord of 13 September 1995 (Former
Yugoslav Republic of Macedonia v. Greece), Judgment (2011)
ICJ Rep 644 11
Austro-German Customs Union (1931) PCIJ Series A/B, No. 41, 37 12, 64
Costa Rica v. Nicaragua (1917) 11 American Journal of International Law
181 13, 64
El Salvador v. Nicaragua (1917) 11 American Journal of International
Law 674 64
European Commission of the Danube (1927) PCIJ Series B, No. 14, 6
12, 64
Gabčı́kovo–Nagymaros Project (Hungary/Slovakia), Judgment (1997) ICJ
Rep 7 96, 100, 106, 107, 110
Separate Opinion of Judge Bedjaoui (1997) ICJ Rep 120 107–108
Slovakia’s Memorial, Vol. I (2 May 1994) 106–107
Hungary’s Counter Memorial, Vol. I (5 December 1994) 108–109
Slovakia’s Reply, Vol. I (20 June 1995) 109, 111
International Status of South-West Africa, Advisory Opinion (1950) ICJ
Rep 128 100, 101, 102, 104, 111, 112
Dr Steyn, Statement on behalf of South Africa, Minutes of Public
Sittings at The Hague from May 16th to 23rd and on July 11th 1950,
CR 1950 100
Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa), Advisory Opinion (1971) ICJ
Rep 16 101
xxii
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xxiii
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion
(1996) ICJ Rep 226 56, 166, 294
Legality of the Use by a State of Nuclear Weapons in Armed Conflict,
Advisory Opinion (1996) ICJ Rep 66 132
Mavrommatis Palestinian Concessions (1924) PCIJ Series A, No. 2, 6
12, 64
Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States), Merits (1986) ICJ Rep 14 54
Dissenting Opinion of Judge Oda (1986) ICJ Rep 212 54
Dissenting Opinion of Judge Jennings (1986) ICJ Rep 528 54
Oscar Chinn (1934) PCIJ Series A/B, No. 63, 65 12, 64, 69
Prosecutor v. Abu Garda, Decision on Confirmation of Charges (PTC), 8
February 2010, ICC-02/05–02/09 257
Prosecutor’s Application Filed on Request of PTC I, 20 May 2009, ICC02/05 257
Prosecutor v. Bemba Gombo, Kilolo Musamba, Mangenda Kabongo,
Babala Wandu and Arido, Warrants of Arrest (PTC), 20 November
2013, ICC-01/05–01/13 241
Prosecutor v. Jean Pierre Bemba Gombo, Decision on Charges (PTC), 15
June 2009, ICC-01/05–01/08 241
Prosecutor v. Kony, Otti, Odhiambo, Ongwen, Decision (PTC), 10 March
2009, ICC-02/04–01/05 237, 239
Prosecutor v. Kony, Otti, Odhiambo, Ongwen, Judgment (Appeals), 16
September 2009, ICC-02/04–01/05 OA 3 237
Prosecutor v. Mathieu Ngudjolo Chui, Judgment Pursuant to Article 74
of the Statute, 18 December 2012, ICC-01/04–02/12–3 215, 239–240
Prosecutor v. Omar al-Bashir, Décision concernant le refus de la
République du Tchad d’accéder aux demandes de coopération
délivrées par la Cour (PTC), 13 December 2011, ICC-02/05–01/09 228
Prosecutor v. Omar al-Bashir, Decision on the Failure by the Republic of
Malawi to Comply with the Cooperation Requests Issued by the
Court (PTC), 12 December 2011, ICC-02/05–01/09 228
Prosecutor v. Omar al-Bashir, Warrant of Arrest, 4 March 2009, ICC-02/
05-01/09 245
Prosecution’s Article 58 Application, 14 July 2008, ICC-02/05-157-AnxA
244
Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on
Libya’s Postponement of the Execution of the Request for Arrest
and Surrender of Al-Senussi Pursuant to Article 95 of the Rome
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table of cases and procedural documents
Statute and Related Defence Request to Refer Libya to the UN
Security Council, 14 June 2013, ICC-01/11–01/11–354 214
Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on
the Admissibility of the Case against Saif Al-Islam Gaddafi, 31 May
2013, ICC-01/11–01/11–344-Red 214
Application on Behalf of the Government of Libya Relating to Abdullah
Al-Senussi Pursuant to Article 19 of the ICC Statute, 2 April 2013,
ICC-01/11–01/11 214
Application on Behalf of the Government of Libya Pursuant to Article 19
of the ICC Statute, 1 May 2012, ICC-01/11–01/11 214
Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on
Admissibility of the Case Against Al-Senussi, 11 October 2013, ICC01/11–01/11–466-Red 214
Prosecutor v. Thomas Lubanga Dyilo, Decision Concerning Arrest
Warrant, 24 February 2006, ICC-01/04-01/06 252–253, 277
Prosecutor v. Thomas Lubanga Dyilo, Decision on Consequences of NonDisclosure of Exculpatory Materials (Trial Chamber), 13 June 2008,
ICC-01/04–01/06 240, 270, 279
Prosecutor v. Thomas Lubanga Dyilo, Judgment on Appeal by Prosecutor
against Trial Chamber Decision on the Consequences of NonDisclosure of Exculpatory Materials (Appeals), 21 October 2008,
ICC-01/04–01/06 OA 13 240
Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of
the Statute, 14 March 2012, ICC-01/04–01/06–2842 215, 239–240
Status Conference Transcript, 18 November 2008 240
Reparation for Injuries suffered in the Service of the United Nations,
Advisory Opinion (1949) ICJ Rep 174 69, 132
Situation in Kenya, Decision Pursuant to Article 15 of the Rome Statute
on the Authorization of an Investigation into the Situation in the
Republic of Kenya (PTC), 31 March 2010, ICC-01/09 257
Prosecutor’s Request for Authorisation of Investigation Pursuant to
Article 15, 26 November 2009, ICC-01/09 257
South West Africa Cases (Ethiopia v. South Africa; Liberia v. South
Africa), Preliminary Objections (1962) ICJ Rep 319 101
South West Africa Cases (Ethiopia v. South Africa; Liberia v. South
Africa), Second Phase, Judgment (1966) ICJ Rep 6 101
SS Lotus (France v. Turkey) (1927) PCIJ Series A, No. 10, 4 55–56
Voting Procedure on Questions Relating to Reports and Petitions
Concerning the Territory of South West Africa, Advisory Opinion
(1955) ICJ Rep 67 101
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Table of treaties and other international
instruments
Treaties and Final Acts
African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba), 1996,
35 ILM 698 284
Agreed Measures for Conservation of Antarctic Fauna and Flora, 1964,
17 UST 992 149
Agreement between USA and Afghanistan Regarding the Surrender
of Persons to the International Criminal Court, September 20, 2002
232
Agreement between USA and Colombia Regarding the Surrender of
Persons to the International Tribunals, 17 September 2003 225, 231
Agreement between USA and Egypt Regarding the Surrender of Persons
to the International Criminal Court, 26 February 2003 225
Extension Agreement (USA and Egypt), February 21, 2007 225, 233
Agreement between USA and India Regarding the Surrender of Persons
to the International Tribunals, 26 December 2002 225
Agreement between USA and Nicaragua Regarding the Surrender of
Persons to the International Criminal Court, 4 June 2003 224,
225, 230
Agreement between USA and Panama Regarding the Surrender of
Persons to the International Criminal Court, 23 June 2003 232
Agreement between USA and Singapore Regarding the Surrender of
Persons to the International Criminal Court, by Exchange of Notes,
17 October 2003 225
Agreement between USA and Swaziland Regarding the Surrender of
Persons to the International Criminal Court, 10 May 2006 231
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table of treaties and international instruments
Agreement between USA and the Central African Republic Regarding
the Surrender of Persons to the International Criminal Court, 13
January 2004 241
Agreement between USA and the Democratic Republic of the Congo
Regarding the Surrender of Persons to the International Criminal
Court, 19 March 2003 239
Agreement between USA and Tunisia Regarding the Surrender of
Persons to the International Criminal Court, by Exchange of Notes,
5 June 2003 225
Agreement between USA and Uganda Regarding the Surrender of
Persons to the International Criminal Court, 12 June 2003 235
Agreement Concerning Interim Arrangements Relating to Polymetallic
Nodules of the Deep Seabed between France, Germany (FRG), the
United Kingdom and the United States, 1982, 21 ILM 950 163, 181,
201
Agreement for Cooperation between the Government of the United
States of America and the Government of India concerning Peaceful
Uses of Nuclear Energy, 3 August 2007 285, 299–302, 303, 305–306,
307, 308, 310, 315, 317, 318, 320, 322, 334–335, 384–392
Agreement for Cooperation between the United Arab Emirates and USA
Concerning Peaceful Uses of Nuclear Energy, 20 May 2009 385, 392
Agreement for Cooperation between USA and Japan Concerning
Peaceful Uses of Nuclear Energy, 4 November 1987 387–388, 392
Agreement for Cooperation between USA and the People’s Republic of
China concerning Peaceful Uses of Nuclear Energy, 23 July 1985
388–392
Agreement for Cooperation in the Peaceful Uses of Nuclear Energy
between the European Atomic Energy Community and USA, 1995
Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies, 1979, 17 ILM 1434 385–387, 392
Agreement on the Rescue of Astronauts, the Return of Astronauts, and
the Return of Objects Launched into Outer Space, 1968, 7 ILM 149
149
Agreement on the Resolution of Practical Problems with Respect to
Deep Seabed Mining areas between Canada, Belgium, Italy, the
Netherlands, and the USSR the Union of Soviet Socialist Republics
signed at New York on August 14 (Midnight Agreement) and
Exchange of Notes between USA and the Parties to the Agreement
(Exchange of Notes), 1987, 26 ILM 1502 152, 173–174, 186–187
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xxvii
Midnight Agreement Exchange of Notes between the USA and the
USSR, 1987, 26 ILM 1506 174
Midnight Agreement Exchange of Notes between USA and the
Netherlands, 1987, 26 ILM 1508 174
Agreement on Trade-Related Aspects of Intellectual Property Rights,
1994, 33 ILM 1197 6, 15
Antarctic Treaty, 1959, 402 UNTS 71 149
Charter of the United Nations, 1945 8, 12, 47, 49, 52, 111
Comprehensive Nuclear Test Ban Treaty, 1996, 35 ILM 1439 283
Convention on Nuclear Safety, 1994, 33 ILM 1514 283
Convention on Physical Protection of Nuclear Material, 1979, 18 ILM
1419 283
Convention on Registration of Objects Launched into Outer Space,
1975, 15 ILM 43 149
Convention on the Conservation of Antarctic Marine Living Resources,
1980, 19 ILM 837 149
Convention on the Conservation of Antarctic Seals, 1972,
11 ILM 251 149
Convention on the International Liability for Damage Caused by Space
Objects, 1972, 11 ILM 1 149
Convention on the Protection of the Marine Environment of the NorthEast Atlantic, 1992, 32 ILM 1069 126
Final Act of the Third UN Conference on the Law of the Sea, 1982, 21 ILM
1245 151
Resolution I on the Establishment of the Preparatory Commission for
the International Sea-Bed Authority and for the International
Tribunal for the Law of the Sea, 1982, 21 ILM 1245 158, 176–177
Resolution II Governing Preparatory Investment in Pioneer Activities
relating to Polymetallic Nodules, 1982, 21 ILM 1245 158, 159, 167,
168, 180, 184, 186, 188, 374–375
Final Act of the United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International
Criminal Court, done at Rome on 17 July 1998, UN Doc. A/
CONF.183/10 14, 218
Resolution F, Establishing a Preparatory Commission for the
International Criminal Court 218
General Agreement on Tariffs and Trade, 1947, 2 UNTS 29 6
General Agreement on Tariffs and Trade, 1994, 33 ILM 1153 6
Geneva Convention on the High Seas, 1958, 450 UNTS 82 151, 166
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table of treaties and international instruments
Provisional Understanding Regarding Deep Seabed Matters between
Belgium, France, Germany (FRG), Italy, Japan, the Netherlands, the
United Kingdom and the United States, 1984, 23 ILM 1354 163–164,
165, 168–170, 182, 204
Memorandum on Implementation, 1984, 23 ILM 1358 163
Rome Statute of the International Criminal Court, 1998, 2187 UNTS 90
212, 217–220, 221–224, 226–232, 234, 237, 240, 243, 244, 247, 248,
249, 252, 253, 276–277, 380–381
Statute of the International Atomic Energy Agency, 1956, 276 UNTS 3
284, 341
Safeguards Agreement with China, 1989, INFCIRC/369, 1989 389, 392
China’s Additional Protocol, 2002, INFCIRC/369/Add.1 391, 392
Safeguards Agreement with India, 1971, INFCIRC/154 300
Safeguards Agreement with India contained in Exchanges of Letters
dated 1 October and 1 December 1993, INFCIRC/433 (1994) 300, 321
Safeguards Agreement with India, 2009, INFCIRC/754 301, 318–320
Safeguards Agreement with Iran, 1974, INFCIRC/214 312
Safeguards Agreement with Pakistan, 2011, INFCIRC/816 311
Safeguards Agreement with the United States of America, 1981,
INFCIRC/288 319
South Pacific Nuclear-Free Zone Treaty (Treaty of Rarotonga), 1985, 24
ILM 1442 284
Treaty Banning Nuclear Weapon Tests in the Atmosphere, Outer Space
and Under Water, 1963, 480 UNTS 43 283
Treaty Establishing the European Atomic Energy Community, 1957, 298
UNTS 167 126
Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty
of Tlatelolco), 1967, 634 UNTS 326 284
Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies, 1967, 6 ILM 386 7, 8, 16, 149
Treaty on the Non-Proliferation of Nuclear Weapons, 1968, 729 UNTS 161
7, 283, 284, 286–295, 303–307, 315, 321–322, 337–339, 341, 344, 351
United Nations Convention on the Law of the Sea, 1982, 21 ILM 1261 6,
126, 147, 150–151, 152–153, 155–157, 159–160, 165–167, 170–171,
175, 197–198, 371–379
Agreement relating to the Implementation of Part XI, 1994, 33 ILM
1309 43, 152, 174–175, 192–198, 376–379
Vienna Convention on the Law of Treaties, 1969, 8 ILM 679 8, 9, 11, 12,
13, 47, 49, 52–60, 66–67, 80, 105–106, 108, 125, 166–167, 203, 291,
293, 307, 361
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Declarations, joint statements and decisions
Declaration of the First Meeting of Equatorial Countries, Bogotá,
Colombia, 3 December 1976 6, 7, 16, 27, 370
Group of 8 Statement on Non-Proliferation, L’Aquila, 8 July 2006 333
India–United States Joint Statement, 18 July 2005 284–285, 295–296,
298–299, 301–302, 310, 317, 318, 322
Interdiction Principles for the Proliferation Security Initiative, 2003 287
Nuclear Suppliers Group Guidelines for Nuclear Transfers
2006, INFCIRC/254/Rev.7 Part I 324
2007, INFCIRC/254/Rev.9 Part I 323, 326–327, 339
2007, INFCIRC/254/Rev.7 Part II 293, 324
2012, INFCIRC/254/Rev.11 Part I 292, 293, 323, 326–327, 339
Nuclear Suppliers Group Guidelines for Transfer of Nuclear-Related
Dual Use Equipment, Materials, Software, and Related Technology
2006, INFCIRC/254/Rev.7 Part II 293, 324
2010, INFCIRC/254/Rev.8 Part II 293, 324
2011, INFCIRC/254/Rev.10 Part II 339
Nuclear Suppliers Group Statement on Civil Nuclear Cooperation with
India, 7 September 2008 326–328, 337
United States–Russia Joint Statement, G8 Summit, 15 July 2006 333
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