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Internationally Wrongful Acts in the Domestic Courts: The Contribution of Domestic Courts to the Development of Customary International Law Relating to the Engagement of International Responsibility

  • SIMON OLLESON

Abstract

The rules of customary international law governing when a state or international organization will be held to have committed an internationally wrongful act, thereby engaging its international responsibility, are relatively well settled in international practice and jurisprudence. A key point of reference in this regard is the work of the International Law Commission on State Responsibility and Responsibility of International Organizations. The present paper examines relevant practice of domestic courts from a variety of jurisdictions which have relied upon the ILC's work, and discusses the extent to which domestic courts may make a contribution to the further development of the rules relating to engagement of responsibility. It concludes that, due to the operation of rules of, inter alia, immunity and non-justiciability, the principal instance in which domestic courts may actually apply the rules of international law is where it is the responsibility of the forum state which is in issue.

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1 The extent to which domestic courts have considered and may contribute to the development of other aspects of the customary law of responsibility, in particular the content and implementation of responsibility (including the principal obligation to make full reparation), is examined in the article by Stefan Wittich elsewhere in the same issue of the Leiden Journal of International Law.

2 Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the ILC on 10 August 2001; for the text of the articles and the ILC's accompanying Commentary, see Report of the International Law Commission on the Work of Its Fifty-Third Session (2001), UN Doc. A/56/10, Ch. IV. The text of the Articles, and the Commentary, together with an introduction and various other useful materials relating to the drafting history of the Articles, are reproduced in Crawford, J., The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002). In 2001, the General Assembly took note of the Articles, commended them to the attention of governments, and annexed them to its resolution, whilst deferring until 2004 any decision on whether the Articles should be adopted in the form of a multilateral convention (GA Res. 56/83, 10 December 2001; UN Doc. A/RES/56/83). In doing so, it dropped the qualifier ‘draft’, so that the Articles are properly referred to as ‘Articles’, rather than ‘draft Articles’. Upon the General Assembly taking up the question again in 2004, the question of what was to be done with the Articles was again deferred until 2007 (GA Res. 59/35, 2 December 2004; UN Doc. A/RES/59/35). That pattern was thereafter repeated in 2007, with the taking of a decision being further deferred until 2010, albeit that it was resolved to examine at that point, ‘within the framework of a working group of the Sixth Committee, the question of a convention on responsibility of states for internationally wrongful acts or other appropriate action on the basis of the articles’ (GA Res. 62/61, 6 December 2007; UN Doc. A/RES/62/61). In 2010, following consideration by the Working Group, the General Assembly once more deferred any decision on what action was to be taken in relation to the Articles until its 68th Session in 2013, and resolved that, on that occasion, it would ‘examine, within the context of a working group of the Sixth Committee, with a view to adopting a decision, the question of a convention on responsibility of states for internationally wrongful acts or any other appropriate action on the basis of the articles’ (emphasis added) (GA Res. 65/19, 6 December 2010; UN Doc. A/RES/65/19). For an account of the positions taken by states in the debate in the Sixth Committee in 2004, see J. Crawford and S. Olleson, ‘The Continuing Debate on a UN Convention on State Responsibility’, (2005) 54 ICLQ 959.

3 Arts. 3–27 ARIO. For the text of the Articles on the Responsibility of International Organizations and the ILC's accompanying Commentary, see Report of the International Law Commission on the Work of its Sixty-Third Session (2011), UN Doc. A/66/10, Chapter V. As with the Articles on State Responsibility, in 2011, the General Assembly took note of the Articles on the Responsibility of International Organizations, commended them to the attention of governments, and annexed them to its resolution, in the process dropping the qualifier ‘draft’; the question of ‘the form which might be given’ to the Articles on the Responsibility of International Organizations was deferred for further consideration at the General Assembly's 69th session in 2014 (GA Res. 66/100, 9 December 2011; UN Doc. A/RES/66/100).

4 I.e. the principles that ‘every internationally wrongful act of a State entails the international responsibility of that State’ (Art. 1 ARSIWA); that an internationally wrongful act occurs when conduct, consisting of an action or omission, is both attributable to a State and constitutes a breach of its international obligations (Art. 2 ARSIWA); and that characterization of an act as internationally wrongful is governed by international law (Art. 3 ARSIWA). See also Arts. 3–5 ARIO.

5 See, Arts. 30 and 31 ARSIWA, and Arts. 30 and 31 ARIO.

6 See Introductory Commentary to Part One, Chapter V, paras. 2–4 and 7 of ARSIWA; see also Crawford, supra note 2, at 160–2. In the CMS annulment, the Ad Hoc Committee discussed whether the effect of the successful invocation of a state of necessity ‘goes to the issue of wrongfulness or that of responsibility’, and implicitly endorsed the approach of the ILC that circumstances precluding wrongfulness are secondary rules which affect the responsibility which is otherwise entailed by a breach of an international obligation, rather than whether there has been a breach of international obligation: CMS Gas Transmission Company v. Argentine Republic (ICSID Case No. ARB/01/8), Decision on Annulment of 25 September 2007, paras. 132–134. For discussion of the distinction, see Lowe, V., ‘Precluding Wrongfulness or Responsibility: A Plea for Excuses’, (1999) 10 EJIL 405.

7 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ Reports 1999, p. 62 (the Cumaraswamy Advisory Opinion).

8 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Reports 2002, p. 3.

9 Ferrini v. Federal Republic of Germany, Corte di Cassazione, Decision No. 5044/2004, 11 March 2004; ILR Vol. 128, p. 658; ILDC 19 (IT 2004).

10 For a summary of the various legal proceedings, see ibid., at paras. 27–29. For the Courts’ finding that the actions of the Italian courts had resulted in Italy's responsibility, see paras. 52–58, and the dispositif, para. 139(1). In addition, the Italian courts had recognized as enforceable in Italy judgments against Germany rendered by the Greek courts in favour of Greek claimants – see paras. 30–34. The Court likewise held that the conduct of the Italian courts in that regard violated Italy's obligation to respect the immunity from jurisdiction of Germany – paras. 121–133, and the dispositif, para. 139(3).

11 Questions Relating to the Obligation to Extradite or Prosecute (Belgium v. Senegal), Judgment of 20 July 2012 (not yet published). For the Court's summary of the relevant facts, including the decisions of the Senegalese courts, see paras. 17–22.

12 See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human, Rights supra note 7, at 87 (para. 62). In support the Court referred to Art. 6 of the ILC's draft Articles on State Responsibility, as adopted on first reading in 1996, which subsequently became, with changes in the drafting, Art. 4 of ARSIWA.

13 See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, supra note 7, at 88 (para 63).

14 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, ICJ Reports 1999, p. 9; Judgment, ICJ Reports 2001, p. 466.

15 Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, p. 77; and Judgment, ICJ Reports 2004, p. 12.

16 In the final paragraph of the reasoning of its Order on Provisional Measures in LaGrand, the Court recalled that ‘the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State, whatever they may be’; LaGrand, Provisional Measures, supra note 14, at p. 16 (para. 28). However, that observation appears to have been directed prospectively to compliance with the Order, rather than to the issue of attribution of the conduct of the domestic courts that had given rise to the dispute.

17 Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measures, Order of 17 June 2003, ICJ Reports 2003, p. 102.

18 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), ICJ Reports 2008, p. 177.

19 See generally Jurisdictional Immunities of the State, supra note 10.

20 See generally Questions Relating to the Obligation to Extradite or Prosecute, supra note 11.

21 Further, as the facts underlying the Arrest Warrant and Jurisdictional Immunities decisions clearly illustrate, the conduct of domestic courts may act as the catalyst for the development, or clarification and consolidation, of existing rules in other areas of international law, most notably state immunity and jurisdictional immunities of states. This is so both insofar as the decisions of domestic courts in themselves may be relied upon as state practice of the existence of the rules of customary international law they purport to identify and then apply, and insofar as the decisions of domestic courts may result in proceedings in which an international court ruling upon an inter-state dispute is given the opportunity to pronounce upon and clarify the content of the relevant rules of customary international law.

22 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, supra note 7, at 88–9 (para. 63).

23 For the request for an opinion as formulated by ECOSOC, see ibid., supra note 7, at 63–4 (para. 1).

24 See, e.g., the reliance by the ILC on the observations of the International Court of Justice in the Commentary to ARIO: Commentary to Art. 3, para. (3); Commentary to Art. 6, para. (3); Commentary to Art. 36, para. (3).

25 City of London v. Sancheti, [2008] EWCA Civ 1283; [2009] 1 Lloyd's Rep 117 (21 November 2008).

26 Ibid., at 35.

27 Horgan v. An Taoiseach et al., the Minister for Foreign Affairs, the Minister for Transport, the Government of Ireland, Ireland and the Attorney General, [2003] IEHC 64; [2003] 2 IR 468; ILDC 486 (IE 2003).

28 [2003] 2 IR 468, at 491–492.

29 Ibid., at 492.

30 Ibid, at 493, citing Commentary to Art. 16, para. (10). Crawford, supra, note 2, p.151; and V. Lowe, ‘Responsibility for the Conduct of Other States’, (2002) Japanese Journal of International Law 1.

31 See Horgan, supra note 27, [2003] 2 IR 468, at 493.

33 As to the doctrine of non-justiciability as a matter of English law, see e.g. Buttes Gas and Oil Co. v. Hammer (No. 3), [1982] AC 888; Kuwait Airways Corp. v. Iraqi Airways Co. (Nos. 4 and 5). [2002] 2 AC 883 (House of Lords). For the US, as to the ‘act-of-state’ doctrine, see Underhill v. Hernandez, (1897) 168 US 250; Banco Nacional de Cuba v. Sabbatino, (1964) 376 US 398; 35 ILR 1; and W. S. Kirkpatrick v. Environmental Tectonics, (1990) 493 US 400; as to the ‘political question’ doctrine, see Baker v. Carr, (1962) 369 US 186.

34 See, e.g., as a matter of English law, J. H. Rayner (Mincing Lane) Ltd v. Department of Trade and Industry, [1990] 2 AC 418; 81 ILR 670.

35 R (ex p. European Roma Rights Centre) v. Immigration Officer at Prague Airport, [2004] UKHL 55; [2005] AC 1.

36 R (on the application of Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs, [2002] EWCA Civ 1598; [2003] UKHRR 76; see also Rahmatullah v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence, [2012] UKSC 48.

37 Although the domestic rules determining the extent to which the implementing legislation applies to particular bodies may not necessarily track precisely the contours of the law relating to state responsibility as a matter of public international law. For instance, Section 6(3), (5), and (6) of the Human Rights Act 1998, which defines the notion of ‘public authority’ and therefore the scope of domestic applicability of the obligations under the European Convention within the UK legal system, would appear not exactly to capture the categories of bodies the conduct of which is attributable to the UK for the purposes of its obligations under the European Convention as a matter of the general international law of responsibility. This is most obviously the case insofar as Section 6(6)(b) expressly excludes the application of the 1998 Act in relation to a failure by Parliament to make any primary legislation or remedial order; it is also far from clear that the test of whether a ‘hybrid’ entity which has certain ‘functions of a public nature’ within the meaning of Section 6(3)(b), such that the Human Rights Act 1998 applies to it in performing those functions (as to which, see, in particular, YL v. Birmingham City Council & Ors, [2007] UKHL 27; [2008] 1 AC 95), parallels the test under the general law of responsibility in Art. 5 ARSIWA, pursuant to which the conduct of non-organs ‘exercising elements of governmental authority’ is attributable to the state only to the extent to which they are in fact acting in that capacity in carrying out the conduct in question.

38 Cf. Nollkaemper, A., ‘Internationally Wrongful Acts in Domestic Courts’, (2007) 101 AJIL 760.

39 Constance Regional Court, Case No. 4 O 234/05 H, judgment of 27 July 2006; partial English translation in Responsibility of States for Internationally Wrongful Acts; Comments and Information Received from Governments, Report of the Secretary General, 9 March 2007, UN Doc. A/62/63, at 11–12.

41 District Court for the Hague, HN v. Netherlands (Ministry of Defence and Ministry of Foreign Affairs), LJN: BF0181/265615; ILDC 1092 (NL 2008). It may not be irrelevant in this regard that, in the interim, the International Court of Justice in Bosnian Genocide, in effect, implicitly endorsed Art. 6 ARSIWA as representing customary international law: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, 43, at 204 (para. 389); although cf. the more careful position taken by the Court, ibid., at 215 (para. 414).

42 HN v. Netherlands, supra note 41, para. 4.6.

43 Ibid., para. 4.8.

44 See now ARIO, Art. 7.

45 HN v. Netherlands, supra note 41, para. 4.8.

46 Ibid., para. 4.9

47 Ibid., para. 4.10.

48 Ibid., para. 4.11.

49 Ibid., para. 4.13.

50 Ibid., para. 4.14.

51 Ibid., para. 4.15.

52 Behrami and Behrami v. France; Saramati v. France, Germany and Norway (Apps. Nos. 71412/01 and 78166/01), Decision on Admissibility of 2 May 2007; see also Berić v. Bosnia and Herzegovina (Apps. Nos. 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05, and 25496/05), Decision on admissibility of 16 October 2007; Blagojević v. Netherlands (App. No. 49032/07), Decision of 9 June 2009; Galić v. Netherlands (App. No. 22617/07), Decision of 9 June 2009.

53 Behrami and Behrami v. France; Saramati v. France, Germany and Norway, supra note 52, para. 133.

54 HN v. Netherlands, supra note 41.

55 R (Al-Jedda) v. Secretary of State for Defence (JUSTICE and Another Intervening), [2007] UKHL 58; [2008] 1 AC 332. See also the subsequent decision of the European Court of Human Rights in Al-Jedda v. United Kingdom (App. No. 27021/08), Judgment of 7 July 2011 [GC], and its careful treatment (at paras. 74–86) of the decision in Behrami.

56 Nuhanovic v. Netherlands, English translation available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5388, at para. 5.8

57 Ibid., at paras. 5.10–5.20.

58 Horgan, supra note 27.

59 Bundesverfassungsgericht, Case No. 2 BvR 1243/03, Decision of 5 November 2003; Bundesverfassungsgericht, Case No. 2 BvR 1506/03, Decision of 5 November 2003; English translation of the latter decision available at http://www.bverfg.de/en/decisions/rs20031105_2bvr150603en.html.

60 Ibid., Case No. 2 BvR 1243/03, at para. 47. In support of its conclusion that Art. 16 reflected customary international law, the Court referred to the ILC's Commentary.

61 See Bundesverfassungsgericht, Case No. 2 BvR 1243/03, at paras 51–60, and Case No. 2 BvR 1506/03, at paras 53–62.

62 See ARSIWA, Commentary to Art. 16, para. (3) (‘Article 16 limits the scope of responsibility for aid or assistance in three ways . . . secondly, the aid or assistance must be given with a view to facilitating the commission of that act, and must actually do so’) and para. (5) (‘The second requirement is that the aid or assistance must be given with a view to facilitating the commission of the wrongful act, and must actually do so. This limits the application of article 16 to those cases where the aid or assistance given is clearly linked to the subsequent wrongful conduct. A State is not responsible for aid or assistance under article 16 unless the relevant State organ intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State. There is no requirement that the aid or assistance should have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that act’). Crawford, supra, note 2, at p. 149. See also the Introductory Commentary to Part One, Chapter IV, para. (9) (Crawford, supra, note 2, at pp. 147–8), which refers to ‘the exclusion of certain situations of “derived responsibility” from chapter IV’, including ‘the issue which is described in some systems of internal law as being an “accessory after the fact”. . . In that regard, the Commentary continues: ‘It seems that there is no general obligation on the part of third States to cooperate in suppressing internationally wrongful conduct of another State which may already have occurred. Again it is a matter for specific treaty obligations to establish any such obligation of suppression after the event. There are, however, two important qualifications here. First, in some circumstances assistance given by one State to another after the latter has committed an internationally wrongful act may amount to the adoption of that act by the former State. In such cases responsibility for that act potentially arises pursuant to article 11’.

63 Jones v. Ministry of Interior; Mitchell and Others v. Al-Dali and Others and Ministry of Interior, [2006] UKHL 26; [2007] 1 AC 270; ILDC 521 (UK 2006).

64 Jones v. Ministry of the Interior, Saudi Arabia; Mitchell and Others v. Al Dali, [2004] EWCA Civ 1394; [2005] QB 699; ILDC 109 (UK 2004).

65 Jones v. Saudi Arabia, supra note 63, [13] ; [2007] 1 AC 270 at 283.

66 Al-Adsani v. The United Kingdom (App. No. 35763/97); Judgment of 21 November 2001; Reports 2001-XI [GC].

67 Jones v. Saudi Arabia, supra note 63, [28]; [2007] 1 AC 270 at 290.

68 Ibid., [9]; [2007] 1 AC 270, at 280.

69 Ibid., [10], [2007] 1 AC 270, at 280–1.

70 Ibid., [11]; [2007] 1 AC 270, at 281.

71 Ibid., [12]; [2007] 1 AC 270, at 281.

72 Ibid., [2007] 1 AC 270, at 281–2, referring to Commentary to Art. 4, para. 13. See Crawford, supra note 2, 99; and Commentary to Art. 7, para. (8). See Crawford, supra, note 2, 108.

73 Jones v. Saudi Arabia, supra note 63, at [12]; [2007] 1 AC 270, at 282; the reference is to Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Reports 2005, 168, at 242 (paras. 213–214).

74 Jones v. Saudi Arabia, supra note 63, at [13]; [2007] 1 AC 270, at 283.

75 Ibid., [24]–[27]; [2007] 1 AC 270, at 288–89.

76 Ibid., at [74]; [2007] 1 AC 270, at 300.

77 Ibid., at [75]; [2007] 1 AC 270, at 300–1, quoting Francisco Mallén (United Mexican States) v. United States of America, (1927) IV RIAA 173, Vol. IV, p. 173.

78 See Jones v. Saudi Arabia, supra note 63, at [76]–[77]; [2007] 1 AC 270, at 301, quoting Commentary to Art. 4, para (13. See Crawford supra, note 2, p. 99.

79 Jones v. Saudi Arabia, supra, note 63, at [78]; [2007] 1 AC 270, at 301.

80 Ibid., at [31]; [2007] 1 AC 270, at 290. A similar link was drawn by the International Court of Justice in Certain Questions of Mutual Assistance in Criminal Matters supra, note 18, at p. 244 (para. 196), when it observed that ‘the State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs’.

81 La Générale des Carrières et des Mines v. F. G. Hemisphere Associates LLC, [2012] UKPC 27; [2013] 1 All ER 409 (‘Gécamines’).

82 See C. Czarnikow Ltd v Centrala Handlu Zagranicznego Rolimpex, [1979] AC 351; I° Congreso del Partido, [1983] 1 AC 244, at 258. For an example of a case in which it was held to be appropriate to pierce the corporate veil, and assimilate a corporation to the state, see Walker International v. Republique populaire du Congo, [2005] EWHC 2813 (Comm).

83 Gécamines, supra note 81, at [28].

84 Ibid., at [15].

85 Ibid., at [18], quoting ARSIWA, Commentary to Art. 4, para. 6 See Crawford, supra note 2, p. 100.

86 Gécamines, see supra note 81, at [15].

87 R (on the Application of Corner House Research and Campaign against Arms Trade) v. Director of the Serious Fraud Office, [2008] EWHC 714 (Admin) (‘Corner House’).

88 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 December 1997, 37 ILM 1.

89 Corner House, supra note 87 at 105.

90 Ibid., at [130].

91 Ibid., at [143].

92 Ibid., at [144].

93 Ibid., at [145], referring to Commentary to Art. 25, para. 1 see Crawford, supra note 2, p. 178; and Gabčíikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, 7.

94 Corner House, supra note 87, at [146]–[148].

95 R (Corner House Research and Another) v. Director of the Serious Fraud Office (JUSTICE Intervening), [2008] UKHL 60; [2009] 1 AC 756.

96 Bundesverfassungsgericht, decision of 26 October 2004 (Cases Nos. 2 BvR 955/00, and 2 BvR 1038/01), at paras. 136–137 (available in English at http://www.bverfg.de/entscheidungen/rs20041026_2bvr095500en.html).

97 Ibid., para. 138.

98 See e.g. Commentary to Art. 17, para. (5); Crawford, supra note 2, 153.

99 Oberlandesgericht, Frankfurt am Main, Decision of 27 June 2006 (Case No. 2/21 O 122/03); partial English translation in Responsibility of States for Internationally Wrongful Acts, supra note 39 at para. 31.

100 Ibid.

101 Ibid.

102 Ibid.

103 Ibid.

104 Bundesverfassungsgericht, Cases 2 BvM 1/03–5/03 and 2 BvM 1/06 and 2/06, Decision of 8 May 2007; translation available at http://www.bundesverfassungsgericht.de/entscheidungen/ms20070508_2bvm000103en.html.

105 Ibid., at paras. 35–47.

106 Ibid., at paras. 45–47.

107 Ibid., at para. 64, although cf. the strongly dissenting opinion of Judge Lübbe-Wolff on this point.

108 Ibid., para. 51.

109 Although admittedly some domestic courts have displayed somewhat greater scepticism in relation to the customary nature of other Articles outside Part I. See in particular, the decision of the Divisional Court in R (on the Application of Al-Haq) v. Secretary of State for Foreign and Commonwealth Affairs, [2009] EWHC 1910 (Admin), DC, at 57 (in relation to Arts. 40 and 41 ARSIWA). Cf., however, the observations of Lord Bingham in A and Others v. Secretary of State for the Home Department (No. 2), [2005] UKHL 71, at 34; [2006] 2 AC 221, at 262–3 (as regards the obligations of states deriving from the prohibition of torture).

110 Caron, D., ‘The ILC Articles on State Responsibility: The Paradoxical Relationship between Form and Authority, (2002) 96 AJIL 856.

111 ARSIWA Introductory Commentary, para 1. See Crawford, supra note 2, 74.

112 As do the decisions of the domestic courts. The question how to decide what constitutes state practice when a government takes a particular position as to the law before its domestic courts, and the domestic court in its judgment rejects that position and expresses a different view as to the content of the law, at odds with that of the government, is beyond the scope of this paper. Cf. Roberts, A., ‘Comparative International Law: The Role of National Courts in Creating and Enforcing International Law’, (2011) 60 ICLQ 57, at 62.

113 See, e.g., the summary of the position taken by the UK government as to the conditions for invocation of necessity under customary international law before the House of Lords in the report of R (Corner House Research and another) v. Director of the Serious Fraud Office (JUSTICE intervening); [2008] UKHL 60; [2009] 1 AC 756, at 812.

* MA (Cantab), LL M (NYU), Dip. Int. L. (Cantab.); Member of the Bar of England and Wales; Tenant, 13 Old Square Chambers, Lincoln's Inn, London []. This is an expanded and updated version of a paper given at the Third ILDC Colloquium, held at the University of Glasgow on 19 and 20 May 2011. I am grateful to the organizers (Christian Tams, Antonios Tzanakopoulos, Erika de Wet, and André Nollkaemper) for the kind invitation to speak. Thanks are due to Dr Silvia Borelli, who patiently read various drafts of the present paper and provided invaluable comments. The usual disclaimers and caveats apply.

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