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The ILC Draft Conclusions on the Identification of Customary International Law: State Silence and Teachings
Get PDF2 The Historical and Normative Background: ‘Freedom of Transit’ in International Law
No full textChapter 2 examines the development of ‘freedom of transit’ in international law. It provides the historical and normative landscape for treaties on transit of energy via pipelines and offers a basis for academic comparison in the following chapters. The chapter begins with the analysis of the development of rules concerning transit through waterways (cross-border rivers, international canals, transit at sea), and continues by examining the development of rules concerning transit overland through the prism of the historical transition from the League of Nations to the United Nations and the debate about transit rights of landlocked states. It illustrates that in international law, the development of ‘freedom of transit’ via different routes came about separately, and served diverse purposes, for particular routes and for particular groups of states. However, in each case the balance between the interests of the transit state and those of other states underlies all rules concerning transit.</p
The Vienna Convention on the Law of Treaties at 50 – ‘A Complete Code or a Code to be Completed over Time’?
Get PDF4 The Nature of International Obligations Regarding Transit of Energy: from Bilateral to Indivisible Obligations
No full textChapter 4 classifies treaty obligations concerning transit with a view to determining which state is injured under the law of international responsibility and can invoke responsibility including by recourse to countermeasures against the responsible transit state. The question posed is to whom is each obligation owed. The analysis in this chapter also assists in determining which treaty party may have recourse to means available in the treaty where the treaty does not contain sufficiently express rules on standing, a matter which is analysed in Chapter 6. The analysis illustrates the polyphony of primary rules vis-à-vis their nature, and argues that bilateralism is not the only model in this area of international law (either in form or in substance). Rather, a number of treaties create collectively owed obligations: some erga omnes partes and some interdependent..</p
Trade Countermeasures for Breaches of International Law Outside the WTO
Get PDFThis article challenges the widely held view that WTO Members are not permitted to impose trade restrictions on other WTO Members in the form of countermeasures for breaches of international law. It cautions that this generally held view has wider implications for international law and multilateralism because countermeasures are a significant means of enforcing and preserving the normative integrity of international obligations outside the WTO, including erga omnes and erga omnes partes obligations. Arguments supporting their ‘displacement’ must be based on clear evidence, which this article shows to be lacking. This article also attempts to allay the (understandable but perhaps exaggerated) concern that such countermeasures might undermine the predictability of the WTO system. Trade countermeasures for breaches of extra-WTO obligations are subject to stringent conditions under customary international law and to judicial scrutiny by means of WTO adjudication, both of which minimise the space for abuse and the risk of unpredictability
7 Countermeasures against the Responsible Transit State
No full textThis chapter analyses the availability of countermeasures, as a means of implementing the responsibility of the transit state (or international organization), in a particular form: that of suspending performance of obligations in the treaty breached by the transit state. Such exclusion may result either from the nature of obligations to be suspended as a countermeasure or from special treaty provisions that exclude countermeasures as circumstances precluding wrongfulness. Additionally, it examines the conditions of lawfulness of countermeasures under customary international law and explains that these conditions may restrict the choice as to the form that countermeasures may take, when they are available within and outside the treaty breached by the responsible transit treaty party.</p
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