This chapter argues that while great strides have been made to humanise the law of diplomatic protection, its practice in the courtroom is not in alignment with this as the protected individual does not participate in proceedings. It first dismantles the famous Mavrommatis fiction and argues that other conditions for diplomatic protection (such as nationality and the exhaustion of local remedies) and its features (such as state discretion and state responsibility) have been increasingly humanised to place emphasis on the individual. Second, it analyses the case law to show how the individual does not participate in proceedings at the Peace Palace. Finally, it provides suggestions to advocate for stronger procedural participation for the injured individual in cases of diplomatic protection at the ICJ.

Subsequent to adoption of the Convention, the International Law Commission studied legal issues relating to its interpretation and implementation in the context of its work on the Code of Crimes against the Peace and Security of Mankind. This included issues such as the nature of participation and the available defences. The Genocide Convention and the crime of genocide are addressed in several international treaties, in particular the International Covenant on Civil and Political Rights, the Convention on the non-applicability of Statutory Limitation, and the Convention on the Suppression and Punishment of Apartheid. The Genocide Convention was also studied in detail by the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities and the Ad Hoc Working Group of Experts on Apartheid. In the 1990s, the crime of genocide as defined in the Convention was incorporated in the statutes of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. These courts have all provided judicial interpretation of the definition of genocide taken from the Convention. The Elements of Crimes, adopted pursuant to the Rome Statute of the International Criminal Court, further develop the definition of genocide.

States incur responsibility for violations of the Convention that may include failure to prosecute or to comply with other obligations under the Convention. The International Court of Justice has made it clear that States may also be found responsibility for actually committing genocide. Because the repression of genocide is erga omnes, even a State that is not injured by the violation may take proceedings against another State alleging that it has committed genocide. The general principles are set out in the Articles on State Responsibility adopted by the International Law Commission. There have been seventeen interstate applications to the Court based upon the Genocide Convention although it has yet to conclude that a State Party has committed the crime of genocide. The two main cases to date are Bosnia v. Serbia and Croatia v. Serbia. Three cases are currently pending, Gambia v. Myanmar, Ukraine v. Russia and South Africa v. Israel. The Court has made important provisional measures orders in some of these cases.

Chapter 5 tackles the question of the applicability of belligerent reprisals in non-international armed conflict. After assessing the merits and difficulties associated with previous reflections on the topic, it devises a new methodology to approach the issue. Then, it puts the notion of belligerent reprisals in relation with the two features of inequality of status between States and non-State armed groups, and equality of rights and obligations for parties to non-international armed conflicts. A careful reading of the travaux préparatoires of Additional Protocol II to the 1949 Geneva Conventions upholds an interpretation that links belligerent reprisals with the latter principle, and that places reciprocity at the basis of both the applicability and the purpose of the measure in non-international armed conflicts. The chapter concludes with the impact of this formalization on such key questions as the requirement of imputability to a State of the original IHL violation and the actual features of the principle of equality. It suggests that the focus be shifted to the idea of equilibrium of rights and obligations, and that belligerent reprisals be seen as a key enabler of it.

In the Epilogue, I take a step back to offer a few generalizations about the history of state responsibility. First, I reconceptualize the growth of state responsibility in terms of three overlapping phases: (1) pre-legalism; (2) ad hoc legalism; and (3) institutional legalism. I then consider some themes common to US, German and other approaches to state responsibility. One idea that runs through all three narratives is the consequentiality of breaking the law. When a state violates its international obligations, there should be a consequence for its conduct. What that “responsibility” should mean was, of course, an open question. Another noticeable pattern is that state responsibility was a fundamentally exceptional doctrine. Whatever the purported general rule, the doctrine has consistently provided considerable room for exceptions. Yet, while the UN–codified doctrine does not predict state behavior, it remains a critical legal framework. The codification of state responsibility as secondary rules has provided international society with an argumentative tradition for questioning and judging any type of state conduct.

By way of conclusion, this chapter seeks to provide an overall assessment of what draws the Court and the Commission together, and of the impact that their “special relationship” has produced. In pulling the threads together, it explains that the interaction between the two organs has turned out differently to that which was originally envisaged, and that the great weight accorded by each of them to the work of the other has challenged the exclusive basis of State consent for international law’s validity. In a legal system that remains heavily dependent on unwritten rules of customary international law that require authoritative determination, the ultimate result has been that the Court and the Commission together assume a public order role not foreseen for either of them by their founders.

This chapter provides a detailed account of the impact that the Commission’s work has had in shaping the Court’s case-law. In addition to surveying and classifying all those instances in which the Court has to date been ready to refer expressly to the Commission’s output, the chapter demonstrates that reliance on the Commission’s work has often been more implicit. The question is then posed as to the basis for such recourse and the advantage afforded by it.

This chapter sets the scene for an appreciation of the contemporary relationship between the Court and the Commission by tracing its roots in the broader ideal of the pacific settlement of disputes and the rule of law in international affairs. Taking stock of developments dating back to the nineteenth century, it illustrates that the long-standing movements for an international court and for an international code were not unrelated, and that a certain vision did exist for the way in which their present institutional manifestations were to interact. That original vision, which has been lost in time, has thus far attracted less attention from commentators than its importance requires.

This introductory chapter explains the scope and purpose of the present study; the methodology pursued; and the structure of argument presented in subsequent chapters.

This chapter addresses in detail those rare occasions in which the Court and the Commission have adopted differing positions on the legal questions before them. In exploring both the potential for such disagreements and how they have been handled, the chapter shows that these instances attest to the strength of the inter-institutional relationship rather than undermine it. It also points out, however, that harmony comes at a cost.

This chapter addresses the relationship between the Court and the Commission beyond the printed page. By focusing attention on the movement of members from one institution to the other, and to the customary exchanges in Geneva between the members of both the UN organs, it reveals the extent and contribution of the more subtle ties that bind the Court and the Commission.

This chapter examines the unparalleled influence that the Court’s decisions have had on the Commission’s codification and progressive development of areas of the law under its consideration. It illustrates not only the great extent to which many of the Commission’s propositions have borrowed their authority from the pronouncements of the Court, but also the significant impact of the latter on the Commission’s choices concerning terminology and programme of work. The chapter further demonstrates the Commission’s conscious efforts to support the Court’s cause more broadly, including by encouraging the expansion of the Court’s jurisdiction and by promoting the doctrine of the sources of international law enshrined in its Statute.

This chapter frames the interpretive regime of modern international law as a historical contingency and aims to trace its genealogy through an analysis of the codification process that led to the current regime. The contingency of the rules of treaty interpretation is hardly recognized in the official discourse. Treated as a matter of common sense or trans-historical customary international law, the rules of treaty interpretation set forth in the Vienna Convention on the Law of Treaties have for instance been applied to the interpretation of treaties dating back to the nineteenth century and a whole range of treaties concluded in the twentieth century before the entry into force of the Vienna Convention. There is, however, ample evidence that the interpretive approach of the Vienna Convention has by no means prevailed throughout the history of international law. This chapter identifies a series of factors ranging from the intellectual history of the discipline of international law and the contingencies of the codification process, to the political circumstances of the Cold War era and the rise of permanent international tribunals that can account for the normative outcome of the Vienna Convention regime.

The doctrine of attribution in international law has been defined, in large part, by the International Law Commission’s (ILC) provisions on attribution of conduct in the Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA). It is uncontroversial to note that despite the influence of the ILC’s rules on attribution, the regime of international responsibility remains underdeveloped. In addition to being underinclusive, the rules of attribution in ARSIWA are beginning to appear outdated. The central question, therefore, is whether the rules of attribution in ARSIWA are flexible enough to accommodate two disparate trends. On the one hand, we have witnessed an outsourcing of public functions to private actors in areas such as immigration, prison management, and education, whereby privatization has reduced state control and, consequently, potential state responsibility. On the other hand, there is a marked centralization of power in SOEs, some of which are now playing a global role as investors. This chapter assesses whether the default rules on attribution are flexible enough to manage both ends of the spectrum of state activity, which will be a crucial issue for regulators going forward.

The author starts by observing that discussions about the foundations and the limits of the powers of international courts, including those of the European Court of Human Rights (hereafter ECtHR), turn around the aims of achieving legal certainty, ensuring legitimacy and justice, and avoiding conflicting obligations which may emanate from different regimes of international law. The chapter reflects on these aims from the perspective of consent as the common basis of the main sources of international law, as listed in Article 38 of the Statute of the International Court of Justice. Proceeding from the case law of the ECtHR, the chapter explores how the recent work of the International Law Commission conceives the role of consent in respect of the main sources of international law, and whether the jurisprudence of the ECtHR remains within the framework of general international law so enunciated.