Danae Azaria

This monograph examines the relationship between treaties providing for uninterrupted energy transit and countermeasures under the law of international responsibility. It analyses the obligations governing energy transit through pipelines in multilateral and bilateral treaties, looking at the WTO Agreement, the Energy Charter Treaty, and sixteen bespoke pipeline treaties.

It argues that a number of transit obligations under these treaties are indivisible, reflecting the collective interests of states parties. The analysis is placed in the historical and normative landscape of freedom of transit in international law. After setting out the content and scope of obligations concerning transit of energy, it distinguishes countermeasures from treaty law responses, and examines the dispute settlement and compliance supervision provisions in these treaties. Building on these findings, the work discusses the availability and lawfulness of countermeasures as, on the one hand, a means of implementing the transit states responsibility for interruptions of energy transit via pipelines; and, on the other hand, circumstances that preclude the wrongfulness of the transit states interruptions of transit.

Whales are regarded as a totemic symbol by some nations and as a natural marine resource by others. This book presents a complex picture of legal problems surrounding the interpretation of the International Convention for the Regulation of Whaling and the role of its regulatory body, the International Whaling Commission. Contemporary whaling is about the competing interests of whaling nations (which are in the minority), non-whaling nations (which are in the majority) and indigenous peoples. Whales are covered by many international conventions, which has led to a very fragmented legal situation and does not necessarily ensure that whales are protected. This is one of the paradoxes of the contemporary international legal regime which are explored in this book. The book also examines the contentious issue of the right of indigenous peoples to whaling and questions whether indigenous whaling is very different from commercial practices.

Article Type: Research Paper Purpose—This article discusses the content of sovereign rights of coastal states in the continental shelf and the exclusive economic zone by reference to recent international case law. Design, Methodology, Approach—It touches on issues of property over nonliving resources, access to confidential information about such resources, the exclusive rights and jurisdiction exercised over infrastructure necessary for the exercise of sovereign rights, and the delineation of the scope of such sovereign rights by their interaction with other interests—individual or community interests—protected by international obligations, such as investment protection, freedom of navigation and the obligation to make contributions for the exploitation of nonliving resources in the continental shelf beyond 200 nautical miles. Findings—The article argues that activities surrounding the exploration and exploitation of nonliving resources in these maritime areas have been the drive f...

The Panel Session ‘Energy on the Move: Treaties on Transit of Energy via Pipelines’ was part of the 110th Annual Meeting of the American Society of International Law, on 31 May, at 1pm. Dr. Danae Azaria acted as speaking moderator and the speakers were Professor Gabrielle Marceau, Mr. Matthew Kronby, and Mr. Matthew Weiniger. Each speaker gave a seven-minute talk on a case study involving a dispute concerning a transit pipeline. The rest of the session took the form of a discussion based on questions by the moderator. The panel discussion was followed by fifteen minutes of questions from the audience.

EXECUTIVE SUMMARY A(I): Is the UK permitted to make a reservation to Article 12(2) of the European Convention on Extradition vis-a-vis particular States to the effect that additional documents, and more specifically prima facie evidence of the offence for which extradition is requested (i.e. signed witness statements), have to be submitted by the requesting State? The European Convention on Extradition (‘ECE’) contains a provision concerning reservations according to which reservations have to be made either upon signature or upon ratification or accession. The late formulation of a reservation would render it invalid. However, modern practice, including under the auspices of the Council of Europe, exceptionally recognises the possibility that the late formulation of a reservation can be valid, if unanimously accepted by other contracting states. A reservation by the UK concerning Article 12 to the effect that prima facie evidence of the offence for which extradition is requested (i...

This monograph examines the relationship between treaties providing for uninterrupted energy transit and countermeasures under the law of international responsibility. It analyses the obligations governing energy transit through pipelines in multilateral and bilateral treaties, looking at the WTO Agreement, the Energy Charter Treaty, and sixteen bespoke pipeline treaties. It argues that a number of transit obligations under these treaties are indivisible, reflecting the collective interests of states parties. The analysis is placed in the historical and normative landscape of freedom of transit in international law. After setting out the content and scope of obligations concerning transit of energy, it distinguishes countermeasures from treaty law responses, and examines the dispute settlement and compliance supervision provisions in these treaties. Building on these findings, the work discusses the availability and lawfulness of countermeasures as, on the one hand, a means of imple...

Article 7 – the transit article – of the Energy Charter Treaty is an important guarantee of energy security. Nevertheless, some claim that the ‘principle of freedom of transit’ enshrined in the provision may give rise to implementation problems because of the vague relationship between this article and Article V of the General Agreement on Tariffs and Trade. This article argues that the relationship between these two provisions is misunderstood. While some emphasise that Article 7 draws on Article V, the latter is not equipped to deal with energy transit through a fixed infrastructure. The findings of the recent Panel Report on Article V, the Colombia Entry Ports case, do not readily apply to energy transit unless interpreted in light of the standards established and promoted in the framework of the Energy Charter process. The article argues that the transit provision of the Energy Charter Treaty should influence the interpretation of, as well as efforts to revise, Article V of the General Agreement on Tariffs and Trade, within the current Doha negotiations in the World Trade Organization.

The modern law of treaties applies regardless of whether a treaty is publicized. The secrecy of an international agreement does not affect its legal force, nonpublicized agreements may be used in interpreting a publicized treaty, and mere failure to comply with domestic requirements concerning publicity does not invalidate the treaty or a state's consent to be bound by it. Under the UN Charter, UN members may not invoke an unregistered treaty or international agreement before a UN organ, but the rules on state responsibility are not concerned with the secrecy or publicity of primary obligations. Injured states may resort to countermeasures for breaches of secret treaty obligations and can suspend compliance with secret treaty obligations as a countermeasure against the responsible state. States may also seek to enforce obligations in secret treaties by bringing claims in international courts and tribunals outside the UN system—and these courts and tribunals have proliferated.

This article argues that the International Law Commission (ILC) interprets international law. In recent years, in documents intended to remain non-binding, the Commission has made interpretative pronouncements about a treaty in force, the Vienna Convention on the Law of Treaties, and customary international law reflected therein. This development is called the ‘codification by interpretation’ paradigm in this article. This article argues that interpretation falls within the ILC’s function, and it analyses the effects of the Commission’s interpretative pronouncements. It explains that the ILC’s interpretative pronouncements are not per se binding or authentic. However, they may trigger an interpretative dialogue with states. The ILC’s interpretative pronouncements may constitute a focal point for coordination among states, a subsidiary means for determining rules of law and a supplementary means of (treaty) interpretation. The aim of the ILC’s ‘codification-by-interpretation’ paradig...

The chapter defines ‘international energy law’ as an amalgam of different international obligations concerning energy activities—the exploration and exploitation of energy resources, their trade and transportation, and investment in the energy sector—as well as the effects of these activities on the environment and on human rights. It is thus not surprising that it accommodates bilateral obligations as well as obligations that protect community interests either of all states (erga omnes) or of groups of states (erga omnes partes). Furthermore, the role of community interest obligations in international energy law is not only relevant vis-à-vis the nature of obligations that fall within the field’s scope. Given the importance that states place on economic activities in the energy sector, international obligations, which reflect community interests, may be and often are enforced by energy-related measures.

Although it is widely accepted that the pronouncements of expert treaty bodies are not binding, this does not mean that they are deprived of any effect in law. This study focuses on their legal effects vis-à-vis the interpretation of treaties, and explores how the International Court of Justice and the International Law Commission have dealt with the pronouncements of expert treaty bodies in relation to the interpretation of treaties. The tale about the Court’s and the Commission’s approaches in this respect demonstrates the profound belief of both the Court and the Commission that international law is a legal system, which calls for reliance on the pronouncements of expert treaty bodies as integral actors within the legal system with some ‘authority’ concerning the determination of the law (within their mandate). This does not mean that the Court and the Commission support a ‘blind reliance’ on such pronouncements; rather the quality of each pronouncement is a criterion for relying...

The CJEU held that the United Kingdom of Great Britain and Northern Ireland (UK) is allowed to unilaterally revoke the notification of its intention to withdraw from the European Union (EU) as long as the revocation is submitted in writing to the European Council before the UK's withdrawal takes effect, and as long as the revocation is “unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the member state concerned under terms that are unchanged as regards its status as a member state, and that revocation brings the withdrawal procedure to an end” (para. 74).

The CJEU held that the United Kingdom of Great Britain and Northern Ireland (UK) is allowed to unilaterally revoke the notification of its intention to withdraw from the European Union (EU) as long as the revocation is submitted in writing to the European Council before the UK's withdrawal takes effect, and as long as the revocation is “unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the member state concerned under terms that are unchanged as regards its status as a member state, and that revocation brings the withdrawal procedure to an end” (para. 74).

The modern law of treaties applies regardless of whether a treaty is publicized. The secrecy of an international agreement does not affect its legal force, nonpublicized agreements may be used in interpreting a publicized treaty, and mere failure to comply with domestic requirements concerning publicity does not invalidate the treaty or a state's consent to be bound by it. Under the UN Charter, UN members may not invoke an unregistered treaty or international agreement before a UN organ, but the rules on state responsibility are not concerned with the secrecy or publicity of primary obligations. Injured states may resort to countermeasures for breaches of secret treaty obligations and can suspend compliance with secret treaty obligations as a countermeasure against the responsible state. States may also seek to enforce obligations in secret treaties by bringing claims in international courts and tribunals outside the UN system—and these courts and tribunals have proliferated. Megan Donaldson's article, The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order, is a welcome and thought-provoking contribution to the scholarship on secret treaties and the rule of law. 1 Secrecy has traditionally been perceived as a means by which states violate their international obligations concerning, for example , the self-determination of peoples and the prohibition of use of force. This understanding is primarily due to practice prior to and during the First World War. Modern scholarship, including Donaldson's contribution, challenges this perception. 2 Although it cannot be excluded that states may use secrecy as a means for pursuing violations of international law, states also conclude secret treaties that do not violate international law (or that will not violate international law, if implemented). The rationale behind secrecy may be that if such agreements are publicized, they may undermine peace. Additionally, governments may lack sufficient personnel, which may prevent them from publicizing treaties—either domestically or internationally—and such capacity limitations may even exist in larger bureaucracies. But it is important to recognize that some of the legal " techniques " that, according to Donaldson, have supported the conclusion of secret treaties in the previous century and in this century are perfectly available in the law of treaties. Further, decentralized measures for enforcing international law, such as the rules on countermeasures under the law on state responsibility, still operate even where the primary obligations breached are secret. This essay discusses how the law of treaties accommodates secrecy of treaties, and suggests that secret treaties may not only indicate the faith that states may have in pacta sunt servanda, as Donaldson argues, but also signal their

Structured Abstract Article Type: Research Paper Purpose—This article discusses the content of sovereign rights of coastal states in the continental shelf and the exclusive economic zone by reference to recent international case law. Design, Methodology, Approach—It touches on issues of property over non-living resources, access to confidential information about such resources, the exclusive rights and jurisdiction exercised over infrastructure necessary for the exercise of sovereign rights, and the delineation of the scope of such sovereign rights by their interaction with other interests—individual or community interests—protected by international obligations, such as investment protection, freedom of navigation and the obligation to make contributions for the exploitation of non-living resources in the continental shelf beyond 200 nautical miles. Findings—The article argues that activities surrounding the exploration and exploitation of non-living resources in these maritime areas have been the drive for the development of the law of the sea and will continue to be so. Practical Implications—The article explains the outer limits and legal implications of sovereign rights and exclusive jurisdiction in relation to non-living resources

The European Convention on Extradition (‘ECE’) contains a provision concerning reservations according to which reservations have to be made either upon signature or upon ratification or accession. The late formulation of a reservation would render it invalid. However, modern practice, including under the auspices of the Council of Europe, exceptionally recognises the possibility that the late formulation of a reservation can be valid, if unanimously accepted by other contracting states. A reservation by the UK concerning Article 12 to the effect that prima facie evidence of the offence for which extradition is requested (i.e. signed witness statements) has to be submitted by particular requesting States parties would be consistent with the object and purpose of the ECE, but its late formulation would not meet the narrow circumstances in which late formulations of reservations have been accepted, and in any event, such late formulation would require the unanimous acceptance of other contracting States in order to be valid.

Although the formulation of a late reservation would render the reservation invalid, a number of alternative routes may be available. First, the UK may denounce the ECE (pursuant to its Article 31) with a view to immediately re-acceding to it and formulating a reservation to Article 12 when acceding. Although such an approach is controversial, there is no rule of customary international law prohibiting it. However, as at 1 January 2014, the UK is party to the Fourth Additional Protocol to the ECE (‘Fourth Protocol’). A denunciation of the ECE automatically entails the denunciation of the Fourth Protocol (pursuant to the Fourth Protocol’s Article 14(3)), and upon accession to the ECE and to the Fourth Protocol a reservation formulated to the ECE concerning prima facie evidence in relation to Article 12 of the ECE would have legal effects only in the relationship of the UK with ECE parties that are not parties to the Fourth Protocol. The UK will be unable to formulate a valid reservation to the Fourth Protocol (concerning Article 12 of the ECE) that applies to the relationship between the UK and other Fourth Protocol parties, because the Fourth Protocol permits only specified reservations but not one in relation to Article 12 to the effect examined here. Second, the UK could try to elicit the establishment of an agreement between ECE parties concerning the interpretation of Articles 12 or 13 to achieve the desired result by triggering the subsequent practice of ECE parties in the treaty’s application.

Assuming that an ECE (or Fourth Protocol) party is not performing the treaty in good faith, under customary international law and the VCLT the UK remains bound by the ECE or the Fourth Protocol (as applicable). The only available responses open to the UK as a result of non-performance of the ECE by another State are the following.

First, under customary international law on the law of treaties, only in case of a material breach by another State party, if the UK is specially affected by that material breach, will the UK be entitled to suspend the operation in whole or in part of the ECE (or the Fourth Protocol, as applicable) in its relationship between itself and the defaulting State. The suspension of the treaty’s operation will release the UK and the defaulting State from the obligation to perform the treaty in their mutual relations during the period of the suspension, but will not otherwise affect the legal relations between the parties established by the treaty.
Second, it is arguable – albeit not beyond doubt – that the UK may withhold performance of its treaty obligations until such time as the other party performs, assuming that the obligations in question are synallagmatic, in the sense that the performance of some treaty obligations may be conditioned upon performance of the same or closely linked obligations under the same treaty (under the exceptio inadimpleti contractus). This is a matter of treaty interpretation. However, it is doubtful that the obligations in the ECE (or the Fourth Protocol, as applicable) are synallagmatic in this way.

Third, under customary international law on state responsibility, if the UK is injured by an internationally wrongful act pertaining to the breach (material or not) of an obligation under the ECE (or the Fourth Protocol, as applicable), it may take a countermeasure against the responsible ECE party (or party to the Fourth Protocol) in the form of suspending compliance with its international obligations under the ECE (or to the Fourth Protocol) or another international obligation owed to the responsible State. The wrongfulness of such suspension would be precluded for as long as the internationally wrongful act persists, but the obligations whose performance is suspended would remain an applicable legal standard between the responsible State and the State taking the countermeasure. However, countermeasures in order to be lawful have to fulfill a number of conditions, and hence their lawfulness will depend on the circumstances of each case. If they are not lawful, the wrongfulness of the countermeasures will not be precluded, and the UK would violate its international obligations and would engage international responsibility.