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Response to the Review of Legal Consequences of Peremptory Norms in International Law

Published online by Cambridge University Press:  18 February 2019

Daniel Costelloe
Daniel Costelloe*
Affiliation:
Wilmer Cutler Pickering Hale and Dorr LLP; daniel.costelloe@wilmerhale.com.
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Type
Book Review
Information
Israel Law Review , Volume 52 , Issue 1 , March 2019 , pp. 119 - 122
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2019 

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Footnotes

The positions in this response reflect the author's personal views and should not necessarily be attributed to any institution or to any other person.

References

1 There are other passages in the book review, in addition to those addressed in this response, that the author of the book considers to be misconceived.

2 Orakhelashvili, Alexander, ‘Book Review: Legal Consequences of Peremptory Norms in International Law’ (2018) 51 Israel Law Review 503, 504Google Scholar.

3 Costelloe, Daniel, Legal Consequences of Peremptory Norms in International Law (Cambridge University Press 2017) 140CrossRefGoogle Scholar.

4 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom), Preliminary Objections, Judgment, 27 February 1998 [1998] ICJ Rep 9 (Lockerbie 1); Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Preliminary Objections, Judgment, 27 February 1998 [1998] ICJ Rep 115 (Lockerbie 2). Orakhelashvili (n 2) 504 (emphasis added).

5 Costelloe (n 3) 139. The opinion to which the book refers (at p 141) in connection with the proposition that limits to the Security Council's powers are primarily political is the separate opinion of Judge ad hoc Lauterpacht of 13 September 1993 in Application of the Convention on the Prevention and Punishment of the Crime of Genocide. The book refers to Judge Schwebel's opinion in connection with the proposition that the ICJ enjoys no explicit power under the UN Charter to review Security Council resolutions.

6 Orakhelashvili (n 2) 504.

7 Costelloe (n 3) 139 (emphasis added).

8 Orakhelashvili (n 2) 504.

9 Lockerbie 1 (n 4) [53]; Lockerbie 2 (n 4) [53]. These references are to the dispositive paragraphs in the ICJ's respective judgments, but the Court did not engage in judicial review of the relevant Security Council resolutions in any part of the judgments.

10 Lockerbie 1 (n 4) dissenting opinion of President Schwebel, 73–81; Lockerbie 2 (n 4) dissenting opinion of President Schwebel, 164–72.

11 Orakhelashvili (n 2) 504.

12 Costelloe (n 3) 136.

13 ICTY, Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1, Appeals Chamber, 2 October 1995.

14 Orakhelashvili (n 2) 504.

15 Costelloe (n 3) 135.

16 ibid.

17 Orakhelashvili (n 2) 505–06. Jones v Ministry of Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270; ECtHR, Al-Adsani v United Kingdom, App no 35763/97, 21 November 2001.

18 Orakhelashvili (n 2) 505.

19 ibid (emphasis added).

20 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment [2012] ICJ Rep 99.

21 Orakhelashvili (n 2) 506.

22 28 USC §1605A; Costelloe (n 3) 266. This exception is more relevant because it extends specifically to acts of torture.

23 Orakhelashvili (n 2) 506–07.

24 Orakhelashvili (n 2) 507.

25 Decision No 238 is available in English on the Constitutional Court's website: https://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S238_2013_en.pdf.

26 Costelloe (n 3) 284.

27 Yousuf v Samantar 699 F.3d 763 (4th Cir, 2012).

28 Costelloe (n 3) 280. In the context of discussing this case, the book among other things also refers, by way of contrast, to the decisions of the Ontario Superior Court of Justice and of the Supreme Court of Canada in Bouzari v Islamic Republic of Iran 124 ILR 428 and in Kazemi and Hashemi v Islamic Republic of Iran [2014] 3 SCR 176, both of which adopted the opposite approach to that in Yousuf v Samantar. Costelloe (n 3) 280 (including fn 178) and 281.