The author of Legal Consequences of Peremptory Norms in International Law was honoured to see that his book had been reviewed in the Israel Law Review. However, he respectfully feels compelled to point out that the book review unfortunately fell short of offering a fair representation of the text of the book, and that it misstated certain legal and factual positions. This response does not summarise the arguments, rather it is limited to addressing the main issues arising out of the review.Footnote 1
The reviewFootnote 2 refers to the passage in the book that says that limits to the powers of the Security Council are primarily political rather than legal.Footnote 3 Immediately after that reference the review says that ‘[r]eliance is then placed on Judge Schwebel's approach in Lockerbie’.Footnote 4 That is incorrect for the simple reason that the book refers to Judge Schwebel's opinion on the previous page in connection with a different proposition.Footnote 5 The review also says that the reference to Judge Schwebel's opinion ‘overlooks the fact that Judge Schwebel was in the minority’.Footnote 6 That is incorrect: the book refers specifically to Judge Schwebel's ‘dissenting opinion’.Footnote 7 In any event, Judge Schwebel dissented on grounds of jurisdiction, admissibility, mootness and whether the objection in question had an exclusively preliminary character, rather than on grounds of judicial review, which the International Court of Justice (ICJ) did not even address.
The review also says that ‘the Court in fact performed what [Judge Schwebel] regarded to be judicial review of Security Council resolutions’.Footnote 8 It did not. Rather, the ICJ in its judgments on preliminary objections in the Lockerbie cases found that it had jurisdiction and that Libya's claims were admissible. It decided that the objection of the United Kingdom and the United States that Security Council Resolutions 748 (1992) and 883 (1993) had rendered Libya's claims without object did not have an exclusively preliminary character (and that the Court would therefore consider this objection at the merits stage, which never took place).Footnote 9 Judge Schwebel's dissenting opinion discusses judicial review, but it does not allege that the Court had performed judicial review.Footnote 10
The review further suggests that the book does not accept that the Security Council is subject to legal limitations.Footnote 11 That is incorrect. The book states that ‘[t]he Security Council, like other UN organs, exists within the confines of general international law and its powers are subject to treaty-based limitations’, and that ‘the United Nations and the Security Council, as one of its organs, exist in the normative setting of general international law and are subject to it’.Footnote 12
Finally, and also in the context of the UN Security Council, the review refers to the decision of the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber in Prosecutor v Tadić on the Defence Motion for Interlocutory Appeal on Jurisdiction,Footnote 13 seemingly in order to reject the book's alleged view that ‘the Security Council is free of legal limitations’.Footnote 14 The review does not mention, however, that the book in fact refers to and quotes from that decision in Tadić;Footnote 15 nor does it mention that the book says that ‘[t]his position [in Tadić on legal limits to the Security Council's powers] has much to commend it as a matter of principle’.Footnote 16
In connection with state immunity, the review proposes an unusual analysis of Jones v Ministry of Interior of the Kingdom of Saudi Arabia and of Al-Adsani v United Kingdom.Footnote 17 The review says that the outcome in these cases:Footnote 18
establishes, on the domestic legal plane in the United Kingdom (UK), a continuously and prospectively operating legal position as between the UK and states such as Kuwait or Saudi Arabia, consisting of the derogatory deal between those states under which there is – implicitly but rather very effectively – an agreement that should any British national or foreign national be tortured in such states, the UK will not in the future afford to them any judicial remedy against the torturing state.
The review then adds that in ‘the bilateral relations between the UK and those states, torture will not attract any consequences of internationally wrongful acts – in other words, torture will be treated as lawful’.Footnote 19 It is not entirely clear how this analysis could serve as a basis for criticising these passages in the book.
In connection with the ICJ's judgment in Jurisdictional Immunities of the State,Footnote 20 the review says:Footnote 21
Reference is then made to the ICJ's opinion in Germany v Italy that FSIA [Foreign Sovereign Immunities Act] amendments made in 1996 are outliers (p 267). This, however, is contradicted by the fact that since the ICJ's judgment on Jurisdictional Immunities was handed down, both Canada and the US have, time and time again, amended their legislation in a way that cannot be reconciled with the ICJ's approach. Thus, state practice increasingly goes against the ICJ's position.
In a footnote to the last sentence in that paragraph, the review cites certain materials that pre-date the ICJ's judgment of February 2012 in Jurisdictional Immunities of the State by approximately three and seven years, respectively. It also cites the 2012 amendments to Canada's State Immunity Act and the 2016 Justice Against Sponsoring Terrorism Act in the United States, which amended the FSIA. Both amendments, however, introduce provisions concerning terrorism. They do not concern peremptory norms. The book discusses and quotes the already existing and more relevant exception to immunity under the FSIA.Footnote 22
The review also criticises the view, in the context of Jurisdictional Immunities of the State, that rules on state immunity have a procedural character, and says that this view amounts to a ‘cliché’.Footnote 23 It says that characterising state immunity rules as procedural:
overlooks an obvious fact that the proceedings in Germany v Italy dealt with the merits of the case, with substantive claims by Germany as to whether Italy's conduct in relation to Germany had violated obligations of substantive conduct arguably owed by Italy to Germany … Germany v Italy dealt with immunities as substantive obligations that Italy arguably owed to Germany on the basis of primary rules of international law relating to the conduct of states.
It is undisputed that the proceedings between Germany and Italy before the ICJ concerned the merits of an international legal dispute between those two states. Yet when one says that rules on state immunity have a procedural character one is referring to the procedure/substance distinction in the forum in which rules on immunity are typically applied – that is, in domestic courts. It is in that sense that the book characterises rules on state immunity as procedural.
The review says, in an apparent criticism of the positions in the book, that ‘Italian, Swiss and American courts have distanced themselves from the ICJ's approach [in Jurisdictional Immunities of the State]’, after stating that ‘the rather limited view of jus cogens that the book favours is not as firmly established as might be expected’.Footnote 24 The review cites one Swiss and one US decision. It does not cite an Italian decision, though it is likely to have been referring to Decision No 238 of 22 October 2014 of the Constitutional Court of Italy and to Orders No 84, 85 and 113 of the Tribunal of Florence of 21 January 2014 through which the action was referred to the Constitutional Court.Footnote 25 Contrary to what might appear from the review, the book does discuss these Italian decisions.Footnote 26 In fact, that discussion in the book concludes by acknowledging: ‘As the Constitutional Court's decision … demonstrates, the positions concerning State immunity as reflected in Jurisdictional Immunities and other international and domestic jurisprudence are not yet fully accepted’. The US decision that the review cites is Yousuf v Samantar.Footnote 27 The book discusses and quotes from this decision as well.Footnote 28
As noted above, this response does not address all issues arising out of the review, but it has hopefully clarified the position in relation to the points above.
