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The Specially-Affecting States Doctrine

Published online by Cambridge University Press:  29 May 2018

Shelly Aviv Yeini
Shelly Aviv Yeini*
Affiliation:
PhD. candidate, Bar-Ilan University Faculty of Law.
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Extract

The orthodox view of the Specially-Affected States Doctrine (SASD), grounded in the International Court of Justice's (ICJ) 1969 judgment in the North Sea Continental Shelf cases, is that practice leading to the emergence of a customary rule must include that of states “whose interests were specially affected.” The framing of this passage of the North Sea Continental Shelf judgment seems to imply both a positive and a negative importance for the practice of specially-affected states. Such practice is a requirement for the emergence of a new rule of customary international law. Acceptance by specially-affected states is, in other words, necessary but not sufficient for a rule of custom to emerge. Whether practice of specially-affected states can be sufficient to form a general custom is not resolved by this formulation, although it seems reasonable to infer that the ICJ had in mind that the combined involvement of specially-affected and other states was needed for the formation of such a rule of customary international law concerning basic principles of continental shelf delimitation. Conversely, the absence of rule-supporting practice by specially-affected states would have a negating effect on the emergence of a rule of customary international law, despite rule-affirming practice of states not specially affected. On this view, practice of only such states could not crystalize into a custom. One commentator has suggested that the negative construction does not mean that a single specially-affected state necessarily holds veto power over the formation of a new rule of customary international law, but asserted that “[i]f several ‘states whose interests are specially affected’ object to the formation of a custom, no custom can emerge.” Unsurprisingly, given this level of abstraction, such formulations do not themselves provide specificity as to how many (or which) specially-affected states would be sufficient to prevent the formation of a custom in a particular situation.

Type
Notes and Comments
Information
American Journal of International Law , Volume 112 , Issue 2 , April 2018 , pp. 244 - 253
Copyright
Copyright © 2018 by The American Society of International Law 

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References

1 North Sea Continental Shelf Cases (Ger./Den.; Ger./Neth.) 1969 ICJ Rep. 3 (Feb. 20).

2 Id. at 43.

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7 Id.

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