'Nuff said

(Taking context-optional note of thought-provoking quotes)

This is an especially important finding of the Tribunal which reinforces the binding nature of international law. Under the cardinal principle of pacta sunt servanda (Article 27 [of the Vienna Convention on the Law of Treaties]), a State is normally prohibited from referring to its internal legislation to justify its failure to perform. In applying this principle, the Tribunal concluded that allowing Russia to 'modulate (or, as the may be, eliminate) the obligation of provisional application, depending on the content of its internal law in relation to the specific provisions found in the Treaty, would undermine the principle that provisional application of the treaty creates binding obligations.'

-- Dr. Chiara Giorgetti (right), attorney at White & Case in Washington, Georgetown Law adjunct, and Co-Chair of the International Courts and Tribunals Interest Group of the American Society of International Law, in an ASIL Insight. Georgetti analyzed the Interim Award on Jurisdiction and Admissibility (2009), issued by an arbitral panel in Yukos Universal Ltd. (UK – Isle of Man) v. Russian Federation, an investment dispute alleged to involve $100 billion in losses as a result of the 2006 bankruptcy of Yukos, once Russia's largest oil company. At issue was the duty of a signing (but not ratifying) state, Russia, to adhere to the terms of a treaty even before it enters into force -- in this case, the multilateral Energy Charter Treaty (logo above left). As Georgetti affirms, the panel's finding of duty, in a situation that in other contexts has prompted "unsigning" -- would seem to have the potential for far reach.

Judge Sotomayor and International Law

For those interested in the views of Judge Sonia Sotomayor (right) on the place of international law in American courts, a few tidbits. (See also yesterday's IntLawGrrls post on her nomination.)
The New York Times has gathered some of Judge Sotomayor’s notable opinions for the U.S. Court of Appeals for the 2d Circuit and made them available online. Among those collected are two that address issues relating to international law; in each, she presents a crisp analysis of the relevant demands of international law and foreign relations:
► Her dissenting opinion in Croll v. Croll (2000), arguing for an interpretation of the Hague Convention on the Civil Aspects of International Child Abduction that accords with its object and purpose (the classic method of treaty interpretation in international law). Specifically, she takes the position that

[w]hile traditional American notions of custody rights are certainly relevant to our interpretation of the Convention, the construction of an international treaty requires that we look beyond parochial definitions to the broader meaning of the Convention, and assess the ‘ordinary meaning to be given to the terms of the treaty in their context and in light of [the Convention’s] object and purpose.’

(quoting the Vienna Convention on the Law of Treaties)
► Her dissent from the denial of rehearing en banc in Koehler v. Bank of Bermuda (2000), contending that the appellate panel should not have adopted an understanding of what it means to be a “citizen or subject of a foreign state” that would leave residents of Bermuda and other similarly situated territories of the United Kingdom effectively stateless and outside the alienage jurisdiction of the federal courts. She describes this conclusion as “flawed and internationally troublesome,” noting its deleterious effect on “our relations with foreign nations, and the access of foreign entities and individuals to our courts.”
Judge Sotomayor also wrote a brief foreword for The International Judge: An Introduction to the Men and Women Who Decide the World's Cases (2007), a book based on interviews with 32 judges on international tribunals. Here, she carefully elides the hot-button question of “the appropriate role that international and foreign law should play in American constitutional adjudication” for an alternative query:

how much we have to learn from international courts and from their male and female judges about the process of judging and the factors outside of the law that influence our decisions.

In considering this question, she draws parallels between the challenges faced by the international judges described in the book and those that she and her colleagues on the federal appellate bench must likewise address, noting particularly the difficult necessity of remaining impartial in “cases that touch our passions deeply.”
She also offers some insight into her view of the mechanism by which judges fulfill their role:

[A]ll courts… are in large part the product of their membership and their judges’ ability to think through and across their own intellectual and professional backgrounds, to reach some juncture of consensus and cooperation in which a common language is used to articulate the rules and norms that bind their communities.

Another ICC unsigning

Among the Bush Administration's early post-9/11 acts -- an act taken fewer than 4 months after the opening of the detention camp at Guantánamo -- was to "unsign" the ICC treaty.
"Unsign" is a bit of a misnomer; in point of fact, what happened was that John R. Bolton, then U.S. Under Secretary of State for Arms Control and International Security, sent the following letter of repudiation to Kofi Annan, then U.N. Secretary-General:

This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty.

The unprecedented act stirred controversy, as our colleague Edward T. Swaine noted in his super 2003 article titled, simply, Unsigning. The act also stirred emulation: soon Israel also repudiated its ICC signature, in words virtually identical to Bolton's above.
And now there are 3.
At the end of August current Secretary-General Ban Ki-moon received Sudan's "unsigning," again lifted nearly verbatim from Bolton's May 6, 2002, letter:

I, Deng Alor Koul, Minister for Foreign Affairs of the Republic of Sudan, hereby notify the Secretary-General of the United Nations, as depositary of the Rome Statute of the Criminal Court[,] that Sudan does not intend to become a party to the Rome Statute. Accordingly, Sudan has no legal obligation arising from its signature on 8 September 2000.

What all 3 states seem to fear is the Vienna Convention on the Law of Treaties. It provides in Article 18:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
(b) It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

This 1969 Treaty on Treaties, many provisions of which are deemed customary international law binding even upon nonparties like the United States, thus takes a midway position. It is more constraining than would be a no-effect-whatsoever position, yet far less constraining, as Swaine notes, than the civil law's culpa in contrahendo principle by "which liability may be imposed for bad faith conduct during negotiations." States that repudiate their signature, or unsign, endeavor to erase even the "interim obligation" of Article 18.
Let us assume arguendo that this practice has, or should, become a norm of international law. Even so the practice cannot liberate nonparty states from all concern.
As I've detailed here and here, in a few circumstances the Rome Statute permits ICC exercise of jurisdiction against nationals of a nonconsenting, nonparty state. Among those circumstances is referral of a matter by the U.N. Security Council pursuant to Article 13(b) of the Rome Statute. Such a referral -- Resolution 1593 (2005), adopted by a vote of 11-0, with Algeria, Brazil, China, and the United States abstaining -- launched the ICC investigation into atrocities in the Darfur region of Sudan. That investigation led Prosecutor Luis Moreno-Ocampo 2 months ago to seek an international arrest warrant against Sudan's President Omar al-Bashir. From that warrant's charges -- genocide and crimes against humanity in Darfur -- Sudan's "unsignature" affords Bashir no refuge.

(Coming Wednesday: The ICC, Sudan, and the Security Council)