Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information 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. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information 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. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information 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 Information on this title: www.cambridge.org/9781107043305 © 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, accurate or appropriate. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information vi 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 © in this web service Cambridge University Press 114 120 123 126 www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information contents 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 © in this web service Cambridge University Press 212 212 217 www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information viii contents 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 © in this web service Cambridge University Press 308 309 310 315 www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information contents 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 © in this web service Cambridge University Press 371 374 376 380 382 384 396 430 www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information 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 xi © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information xii 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. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information foreword 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information 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 xv © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information xvi preface 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information preface xvii 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. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information xviii preface 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. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information xx 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information table of cases and procedural documents 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information xxiv 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information 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 xxv © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information xxvi 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information table of treaties and international instruments 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information xxviii 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-04330-5 - Strategically Created Treaty Conflicts and the Politics of International Law Surabhi Ranganathan Frontmatter More information table of treaties and international instruments xxix 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 © in this web service Cambridge University Press www.cambridge.org