A. Brexit and the European Court of Justice

A key tenet of the ‘Brexit’ campaign in Britain has been to take back control over law in the United Kingdom (UK) from the CJEU. The ‘leave’ campaigners and their supporters in the Press singled out the Court—branded ‘Europe's imperial court’—for particular criticism amongst the European institutions.

When the electorate voted by a narrow margin on 23 June 2016 in favour of leaving the European Union (EU), the British Government immediately announced that it intended to give notice of withdrawal under Article 50 Treaty on European Union (TEU) in the exercise of its prerogative power in foreign affairs.Footnote ¹⁹ It would be an act of State on the international plane that it did not need statutory authority from Parliament.Footnote ²⁰

On 3 November 2016, the Divisional Court demurred. It said that directly effective rights under EU law, including the right of recourse to the European Court, had been given effect in the UK by Parliament and only Parliament could take them away.Footnote ²¹ The response from the press was immediate and furious: The Daily Mail branded the Court ‘Enemies of the People’.Footnote ²² Yet on 24 January 2017, the UK Supreme Court, by a majority of 8:3, upheld the Divisional Court holding that only Parliament could authorize withdrawal.Footnote ²³

Some of the criticism of the CJEU was focused on a perceived growth in its power since the Treaty of Lisbon, with its enlarged competence for the EU and adoption of the European Charter.Footnote ²⁴ But much of it stems simply from the direct binding effect of its judgments on EU law applicable in the domestic jurisdictions of the Member States, leading to what the Economist aptly described as an atmosphere of ‘contempt of court’Footnote ²⁵ in the UK. Yet, whatever form the arrangements between the UK and the EU may ultimately take, it is inevitable that some form of international tribunal, with power to bind the parties will be required for the system to operate.Footnote ²⁶

B. European Court of Human Rights

If the CJEU has come in for criticism, the ECtHR, the judicial institution that applies the European Convention on Human Rights,Footnote ²⁷ has become a bête noire, with the Press in the UK referring to ‘meddling unelected European judges’ who are ‘wrecking British law’.Footnote ²⁸ The ECtHR has had to face criticism from a much wider range of its member States—not least the charge of being a ‘Western imposition’ from the easternmost member States of the Council of Europe who still occupy the majority of the Court's caseload, despite the fact that all of those States freely chose to join the Council and the Court after the end of the Cold War.Footnote ²⁹

But the criticism of the Court in the UK, as a foundation member of the Court, is particularly serious. In part this criticism has focused on particular judgments, such as the issue of prisoner voting rights.Footnote ³⁰ There is a more general wish to exclude British engagement in military operations abroad from the purview of the Court's review, following the Al-Skeini Footnote ³¹ and Al-Jedda Footnote ³² judgments of the Grand Chamber in 2011, such that it is now part of the Conservative Party Manifesto to state that: ‘British troops will in the future be subject to the international law of armed conflict … not the European Court of Human Rights.’Footnote ³³ The Manifesto stops just short of complete withdrawal, leaving the question open until the completion of Brexit.

Noel Malcolm, pre-eminent authority on Thomas Hobbes,Footnote ³⁴ in a 150-page pamphlet published in 2017 for the Judicial Power Project, subjects the jurisprudence of the Court to a wide-ranging critique.Footnote ³⁵ He argues that it has produced an ‘unclear, indeterminate, subjective and unpredictable system of human rights adjudication’ that undermines democracy.Footnote ³⁶ He concludes that ‘the current system under the European Convention is so dysfunctional and counter-productive that it should be abandoned’ and replaced by a detailed domestic code.Footnote ³⁷

Such an approach gives adequate weight neither to the historical reasons for the creation of the Convention and its Court nor to Britain's formative role in it. The Convention is not simply an abstract creation of the Council of Europe. As Brian Simpson showed in his magisterial study Human Rights and the End of Empire,Footnote ³⁸ the UK played a pivotal role in the framing of the ECHR. Britain saw the Convention not only as an expression of the fundamental values of the English legal system but also as serving the key foreign policy objective of ensuring that Europe did not again return to the mass atrocities of World War II. The text was derived in no small measure from Sir Hersch Lauterpacht's An International Bill of the Rights of Man;Footnote ³⁹ and promoted by the Foreign Office and by the former British Prime Minister Winston Churchill, who said: ‘[i]n the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law’.Footnote ⁴⁰

In other words, the ECtHR stands not merely as a bulwark of international rights; it is also a key part of the architecture to ensure peace and justice across Europe. Lord Phillips, sometime President of the UK Supreme Court, suggested in a debate on Malcolm's book that, given that ‘others might be only too keen to follow our example … it would be lamentable to withdraw our support from the Convention and the Court’.Footnote ⁴¹

C. International Criminal Court

There has also been a serious movement to withdraw from the ICC, focussed primarily but not solely in Africa.Footnote ⁴² African States were formative supporters of the Court. Thirty-four African States chose to become parties to the Rome Statute—the largest single regional grouping. Yet the fact that to date the investigations opened by the Office of the Prosecutor have been largely focused on African States has led to charges of a neo-colonial agenda,Footnote ⁴³ despite the appointment of an African, Fatou Bensouda, as the second prosecutor.Footnote ⁴⁴ These criticisms obscure the fact that of the eight investigations to date, six were the result of voluntary reference by the relevant State (or were tantamount to a national reference) and two (SudanFootnote ⁴⁵ and LibyaFootnote ⁴⁶) were references by the Security Council, supported by its African members. The Office of the Prosecutor has in any event more recently significantly broadened the geographical scope of the situations subject to preliminary examination.Footnote ⁴⁷

Yet the objections of African heads of State have been such as to lead to the withdrawal of Burundi;Footnote ⁴⁸ abortive withdrawals by South AfricaFootnote ⁴⁹ and The Gambia;Footnote ⁵⁰ and a proposal brought forward to the meeting of the African Union in January 2017 for a possible collective withdrawal by African States from the Court. The Collective Withdrawal proposal was promoted by an Open-ended Ministerial Committee of the Union as a last resort solution to address what it saw as necessary institutional and legal reforms of the ICC; to enhance African solutions for African problems and to ‘[p]reserve the dignity, sovereignty and integrity of Member States’.Footnote ⁵¹ The strategy was endorsed by a majority of States at the Assembly of the Union.Footnote ⁵² But it appears currently to be largely a bargaining chip for the Union's mission to reform the Court.Footnote ⁵³ The alternative of a regional court with competence in the field of international crimes, envisaged by African States in 2014, has not yet come into force.Footnote ⁵⁴

Scholars have also questioned the Court's fundamental mission. Gerry Simpson devoted his Kirby Lecture in 2015 to a critique of the system of international criminal justice as ‘human rights with a vengeance’ or ‘a system of injustice’. He argues that the prosecution of war crimes has always been historically contingent, more about the identity of the violator than the identity or nature of the violation. He concludes that international criminal law ‘might now be one of the less auspicious ways to do good in the world’.Footnote ⁵⁵ In the present author's view, an approach that equates international criminal justice with retribution, misses the point that a principal purpose of a criminal justice system—national or international—is to break the cycle of retribution by replacing it with adjudication according to law, as Aeschylus so powerfully demonstrated in The Oresteia. Footnote ⁵⁶ To deny this possibility at the international level for crimes that are unlikely to be prosecuted domestically would have grave consequences—not only in terms of the impunity of the perpetrators, but also in terms of the wider maintenance of peace and security that is a core purpose of international law.

D. Investment Treaty Arbitration

A further example is the case of investment treaty arbitration. Following an extraordinary period of development there are now about 3,300 investment treaties providing for the international arbitration of investment disputesFootnote ⁵⁷ and the total number of registered cases now totals more than 850.Footnote ⁵⁸ At the same time, there has been a growing opposition to investor–State arbitration. This became a major subject of civil society dissent in the negotiation of the (now renamed) Comprehensive and Progressive Agreement for Trans-Pacific Partnership 2018Footnote ⁵⁹ and the proposed Transatlantic Trade and Investment Partnership.

Some of the objections that have been raised engage specific perceived inequities in the operation of investment arbitration, which critics claim evidences systemic bias; is open to abuse; is insufficiently transparent given the public issues involved; and lacks procedures that might build consistency. The larger critique is more central to the present theme. It is simply that investment arbitration undermines domestic sovereignty by empowering international tribunals to sit in judgment on the choices of democratically elected governments at the suit of private claimants.

The backlash against investment arbitration has begun to have an impact on State practice. Only three States have withdrawn from the ICSID Convention 1965,Footnote ⁶⁰ which, with 153 States partiesFootnote ⁶¹ is still on a par with the New York Convention 1958Footnote ⁶² (with 157 parties) as the world's most widely ratified arbitration treaty. But membership of the ICSID Convention does not itself confer jurisdiction—the State must do so by separate instrument of consent. In modern times the most frequent such instrument has been standing consent given by bilateral treaty.

This is where the change in State practice is becoming more readily apparent. As recently as 2010, an author of a prominent treatise found ‘no reported case of a country actually terminating an investment treaty to which it had agreed’.Footnote ⁶³ But recently a number of States have moved to terminate their investment treaties.Footnote ⁶⁴

Within the group of States that seek what has been called a ‘paradigmatic reform of investor–State arbitration’Footnote ⁶⁵ there is a spectrum of different proposed approaches, not all of which involve outright rejection of international dispute settlement under treaty.Footnote ⁶⁶

In the United States, the President has threatened to give notice of withdrawal from the North American Free Trade Agreement (NAFTA) on more than one occasion.Footnote ⁶⁷ The renegotiated agreement that is intended to replace NAFTA does not reject the international arbitration of investment disputes altogether, but radically reduces the permissible scope of such claims.Footnote ⁶⁸

In Europe, systemic reform not rejection of international dispute settlement is the order of the day. Exclusive competence for concluding investment agreements with third States was transferred to the Union under the Treaty of Lisbon.Footnote ⁶⁹ More recently, the CJEU has confirmed that the provisions for the international arbitration of disputes in intra-European bilateral investment treaties are precluded by the EU Treaties.Footnote ⁷⁰ These two steps will lead to a significant contraction of the existing stock of bilateral investment treaties concluded by EU Member States.Footnote ⁷¹

In formulating its new approach, the European Commission has rejected arbitration as its preferred model for the resolution of investment disputes. The EU's two most recent Free Trade Agreements—with Canada and Vietnam (neither of which are yet in force)—adopt a proposed Investment Court (and Appeals Chamber) rather than arbitration.Footnote ⁷² Cecilia Malmström (EU Trade Commissioner) has now adopted a broader policy that critiques investment arbitration for its lack of legitimacy, unpredictability and propensity for error.Footnote ⁷³ The EU Council aims to replace investment arbitration generally with a Multilateral Investment Court.Footnote ⁷⁴

All of these possibilities: incremental reform; a more major systemic reform, such as the replacement of arbitration with a standing international investment court; and a complete paradigm shift that would return such disputes to an earlier world of domestic remedies and possible diplomatic protection vindicated through inter-State claims are now on the table in UNCITRAL, which has assumed a mandate on the reform of investor–State dispute settlement.Footnote ⁷⁵

E. Other Modes of Avoidance

States may also adopt other modes of avoidance of international litigation short of outright withdrawal.

A State may decide not to enter an appearance in a case brought against it under a treaty provision.Footnote ⁷⁶ Such an approach is neither unique to States as defendants nor to the present day. The International Court of Justice (ICJ) was confronted with several cases in the 1970s where respondent States did not appearFootnote ⁷⁷ and there are some indications that this practice may again be re-emerging.Footnote ⁷⁸ Non-appearance does not relieve the court or tribunal from the power and duty to decide the claim brought before it. It neither deprives the tribunal of the competence and obligation to determine its own jurisdiction (the principle of Kompetenz-Kompetenz); nor does it deprive the resulting judgment or award of its binding force. These are general principles of law, applicable to the international judicial process whether or not (as is often the case) they are spelled out expressly.Footnote ⁷⁹

However, a decision not to appear does carry with it particular procedural consequences in international litigation. In common with a default of appearance before a national court, it deprives the tribunal of the benefit of the respondent's evidence and submissions, including when the tribunal is determining its jurisdiction. In the specific context of international litigation and arbitration, it deprives the respondent State of the opportunity to participate in the constitution of the tribunal, through the appointment of arbitrators or judges ad hoc as the case may be.Footnote ⁸⁰

A State may also inhibit the operation of a judicial process without withdrawal through a decision not to cooperate in the appointment of judicial officers. This is the case at present in relation to appointments to the Appellate Body of the WTO.Footnote ⁸¹ Such action, though taken unilaterally, may have a much wider negative effect than the withdrawal of one State alone. The actions of such a State would have to be judged against its general duty to perform its international law obligations in good faith.

The blocking of judicial appointments affects the ability of all other States to access and enjoy the benefits of third party adjudication. In the case of the WTO DSU its effect would not be limited to the exercise of the right of appeal. The extinction of the Appellate Body by a refusal to cooperate in appointments could also in turn deprive trade rulings of their finality and provoke a cycle of retaliation and counter-retaliation. The Deputy Director-General of the WTO, Alan Wolff, argues that, while this dispute may have had its origins in divided views on how the Appellate Body should interpret its mandate, there is now a more fundamental question at stake. This is not a matter to be solved through a debate on the legal merits of particular decisions. It involves a systemic risk to a key element in the stability and effectiveness of the world trade system.Footnote ⁸²

A. The Burdens of Enlargement

The first proposition is that the current phenomenon of withdrawal is in part a consequence of the success of the international law project, which affects both the juridical source of State consent and the scope of disputes. The trajectory of international adjudication has moved from isolated cases, dealt with by means of arbitration that States agreed to on an ad hoc basis to a proliferation of standing international courts and tribunals, on whom States have conferred standing jurisdiction by treaty.

A further aspect of the development of international adjudication has been its density and reach ratione personae and ratione materiae. The extension of international adjudication to cover claims by private persons against States is one of its most distinctive contemporary elements: applied in both human rights and investment treaties. In both instances this has been a deliberate decision of the contracting States to admit direct claims rather than to require, as in the paradigm of diplomatic protection, the translation of all claims to the inter-State level. Both human rights and investment treaties by design reach deep into the internal governance of States parties ratione materiae. That is their purpose: to place international law limits on what States may permissibly do, whether ‘to everyone within their jurisdiction’Footnote ⁸³ or in respect of foreign nationals (in the case of investment treaties). At the same time, the development of international criminal law embodied in the Rome Statute of the ICC involves the direct application of international adjudication to the conduct of individuals, regardless of their official capacity,Footnote ⁸⁴ exacting the responsibility of commanders as much as of foot soldiers.Footnote ⁸⁵ Immunities do not operate as a bar to the jurisdiction of the Court.Footnote ⁸⁶

This expansion in the ambition of States for the competence of the international legal system assumes an unwavering acceptance by each of them that the higher objectives of the international rule of law justify the voluntary subjection of the State to the application of the law by the judgment of an international tribunal. In hindsight, it should not be a matter of surprise that, as the decisions of such tribunals multiply, and the results are exposed to political debate at home, some States would become restive under a yoke of their own creation.

B. The Alleged Democratic Deficit

A reaction to the enhanced ambitions of international adjudication has been the argument that international courts and tribunals contribute to a democratic deficit.Footnote ⁸⁷ Their judges or members are not (directly) elected or directly accountable to the national societies affected by their decisions. Yet their decisions may directly constrain the policy choices of nationally elected legislatures, who have been democratically elected.

So, for example, criticism of the ECtHR has been made on the grounds that: it involves decisions being made about the rights of citizens by a body that is not exclusively accountable to them; international tribunals generally involve decisions being made by unaccountable international elites; the State has transferred constitutional powers of decision that ought to have remained within the domestic polity; and that the judiciary has an insufficiently controlled discretionary power, which can lead to an overreaching of its jurisdiction in ways that are unduly intrusive on State's decision-making powers and beyond the scope of the original mandate that States granted to the court. ^{Footnote 88} Similar arguments have been advanced in democratic States against other international courts and tribunals, notably the CJEUFootnote ⁸⁹ and investment arbitral tribunals.

It will be necessary to return to these arguments later.Footnote ⁹⁰ At a fundamental level they misconstrue the relation between democracy and the judicial function, which is to maintain the rule of law. As Baroness O'Neill recently pointed out:Footnote ⁹¹

This point also applies at the international level, since, as the German Constitutional Court memorably put it:Footnote ⁹²

C. State Sovereignty and Raison d’État

Another objection that is taken to international adjudication is that it cannot apply when it trenches upon the vital interests of the State in the maintenance of its sovereignty. There has been an element of this in the reaction to the jurisdiction of the UNCLOS tribunal in relation to the South China Sea dispute;Footnote ⁹³ and in the statement of African States that collective withdrawal from the ICC is needed to ‘[p]reserve the dignity, sovereignty and integrity of Member States’.Footnote ⁹⁴

A more specific aspect of this argument is the intrusion into States’ discretion in the field of foreign affairs. This has been a specific feature of the African Union debate. A focus of much of the recent dissent amongst African States has been the attempts of the ICC to achieve the surrender of Omar Al-Bashir of Sudan in the course of his diplomatic visits to other African States, a matter referred to the Appeals Chamber on the application of Jordan.Footnote ⁹⁵

This more general appeal to the siren call of sovereignty seems sometimes to be treated as if it were a self-explanatory and complete answer to submission to international adjudication. But, at least when expressed in absolute terms, this is a misconception. States are sovereign and independent of each other, but they do not exist in splendid isolation. Sovereignty has both an internal aspect in the governance of the State and its people, and an external aspect in the State's relations with others. In the case of international adjudication, this means that the decision of a State to submit to international adjudication is an expression of its sovereignty on the international plane and is not in derogation from it.Footnote ⁹⁶ It is not, a ‘submission to alien powers. Instead, it is a voluntary, mutual pari passu commitment’.Footnote ⁹⁷ Since ‘[t]he empowerment to exercise supranational powers … comes from the Member States … [t]hey therefore remain the masters of the Treaties …’.Footnote ⁹⁸

States have important choices to make about when they consent to the jurisdiction of international tribunals. But these choices require a balancing of internal domestic interests with the interests that States share with other States in the maintenance of an international order bounded by law.

D. Excess of Judicial Power

Finally, international courts and tribunals face the criticism that they are insufficiently judicial, lacking the indicia of due process that a national judicial system can achieve, and insufficiently constrained by the limitations and corrections that such a system can impose.

Investment arbitration has come under particular criticism on this ground. It is claimed that: arbitrator selection by the parties institutionalizes the biases of party-appointed arbitrators towards those (whether investors or States) who appoint them; the process is insufficiently transparent, given the public interests engaged by such cases; arbitrators are insufficiently independent since they may have other roles that give rise to conflicts of interest; and the system as a whole is prone to decisional incoherence, in view of the lack of a doctrine of precedent and of a right of appeal.Footnote ⁹⁹ Judicial activism and excess of mandate is also a charge levelled at human rights courts both in EuropeFootnote ¹⁰⁰ and in the Americas.Footnote ¹⁰¹

These criticisms have to be taken seriously. But their validity cannot be determined on the basis of individual cases. Judges and arbitrators cannot expect to find their decisions universally endorsed—especially not by the unsuccessful party. They must work within a system that States, not judges, created. It follows that it is States that can reform the system, should they wish to do so. In the present author's experience, international judges and arbitrators are very much concerned to work within the limits of the power conferred upon them; to decide according to the applicable law; and according to a demonstrably fair process. Those are the very qualities that lend legitimacy to the decision of States to refer their dispute to third party adjudication.

Where an international arbitral tribunal exceeds the scope of the jurisdiction granted to it by the Parties, its award is liable to be avoided for excess of power.Footnote ¹⁰² At the same time a tribunal's failure to exercise a jurisdiction that the parties have conferred upon it may be just as much open to criticism as an excess of power as a decision that goes beyond the scope of consent.Footnote ¹⁰³ Commissioner Gore observed as long ago as the decision in The Betsey in 1794 that:Footnote ¹⁰⁴

The International Court of Justice (ICJ) has also observed that: ‘The Court must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent.’Footnote ¹⁰⁵

The duty of an international court or tribunal in jurisdictional matters is to determine, as a matter of law, the scope of its jurisdiction as conferred upon it by the parties. Its decision would be as much open to criticism for an under exercise of jurisdiction as for an excess of jurisdiction, since its decision always affects the rights of both parties to the dispute. Adjudication, at national as well as international levels, especially where it concerns constraints on the exercise of State power, is inevitably driven by the facts as presented in the evidence before the tribunal. Courts have to decide the cases presented to them in light of that evidence. They cannot avoid that responsibility because it might be politically inconvenient.

These four critiques taken together suggest that the objections to international adjudication are not specific to the work of particular tribunals. Rather they go to the heart of the exercise of the adjudicatory function at the international level. The assault on international adjudication also exposes the fragility of the system of international courts and tribunals that States have created, a system created by a myriad of acts of consent by individual States. In these circumstances, it is of some importance to determine the limits that international law places on the withdrawal of such consent. It is to this issue that the article now turns.

A. Continuity v Voluntarism in Treaty Relations

Modern international law has had an uneasy relationship with withdrawal from treaties. It engages a tension between, on the one hand, the maintenance of stability in treaty relations that underlies its fundamental rule of recognition: the general principle of pacta sunt servanda Footnote ¹⁰⁶ and, on the other hand, the default rule enunciated in the Lotus that ‘[t]he rules of law binding upon States therefore emanate from their own free will … [such that] [r]estrictions upon the independence of States cannot therefore be presumed’.Footnote ¹⁰⁷ The Lotus principle has a particular application in the case of international adjudication. States are not subject to compulsory international process, jurisdiction or settlement without their consent, given either generally or in the specific case.Footnote ¹⁰⁸

The general phenomenon of treaty withdrawal cannot be dismissed as a marginal practice. One study identified 1547 instances of State withdrawals from multilateral treaties registered with the United Nations from 1945 to 2004.Footnote ¹⁰⁹ In the majority of cases, treaties make express provision for withdrawal, but such provision is not universal.

The framers of the VCLT had well in mind the baleful experience of the Covenant of the League of Nations, from which 17 members withdrew in the 1930s under the express provisions of Article 1(3).Footnote ¹¹⁰ That experience no doubt explains the omission from the UN Charter of any provision for withdrawal.Footnote ¹¹¹ At the same time, the voluntarist premise, which would imply a right of withdrawal from any treaty, irrespective of express provision, had not been entirely erased from the practice of States. In the result, the provisions of the VCLT on termination or withdrawal proved to be of pivotal importance to the adoption of the Convention as a whole.Footnote ¹¹² These provisions, which are collected in Section 3 of Part IV of the Convention, deal both with the substantive circumstances in which a State may withdraw from a treaty and with the procedural safeguards applicable to the act of withdrawal. As will be seen, these provisions carry important consequences at international law. They challenge any assumption that withdrawal from international adjudication is merely a unilateral voluntarist act.

B. Express Provision

Articles 54 and 56 provide the substantive conditions for withdrawal. Article 54 deals with withdrawal by agreement:

The majority of treaties do in fact make express provision for withdrawal. But it is always a difficult diplomatic decision to include such a provision. Article 50 TEU was included in Lisbon as it was felt better to clarify whether withdrawal from the EU was possible, and, if so, under what conditions. It is those conditions that have shaped the course of the Brexit negotiations, in particular by setting a deadline of two years from notification of an intention to withdraw for the EU Treaties to cease to apply to that State unless either a withdrawal agreement has been concluded or the European Council, in agreement with the Member State concerned, unanimously agrees to extend the date.Footnote ¹¹³

A notification of withdrawal may be revoked ‘at any time before it takes effect’.Footnote ¹¹⁴ In Wightman, the CJEU confirmed that such a unilateral right of revocation also applies within the context of Article 50 TEU.Footnote ¹¹⁵ Highlighting ‘the considerable impact on the rights of all Union citizens’,Footnote ¹¹⁶ the Court held the right to revoke a decision to withdraw had to be one for the Member State concerned, since otherwise ‘it could be forced to leave the European Union despite its wish—as expressed through its democratic process in accordance with its constitutional requirements—to reverse its decision to withdraw’.Footnote ¹¹⁷ This, thought the Court, would be inconsistent with the objective of the EU to promote an ever-closer Union.Footnote ¹¹⁸ As a result, a Member State is free at any time to revoke its decision to withdraw until the period specified in Article 50 has expired, provided that such revocation is:Footnote ¹¹⁹

A consequence of the inclusion of such an express provision for withdrawal is that, precisely because it brings the option of withdrawal out into the open, it presents itself as an option that States may take in compliance with international law, rather than placing the State in a position where it might be said to be in breach. Yet an express provision for withdrawal from a treaty providing for third party dispute resolution may also have the valuable effect of limiting the impact of precipitate acts of withdrawal by imposing a time period before withdrawal takes effect.Footnote ¹²⁰

C. An Implied Right of Withdrawal?

Article 56 deals with the more difficult case of a right of unilateral withdrawal on the basis of the parties’ intention or by implication. It contains both a substantive and a procedural condition. Article 56(1) requires substantively that:

This provision recognizes a presumption against a right of withdrawal in cases of treaties with no express provision. It then adds two possible exceptions: a subjective exception where the parties’ common intention was to permit withdrawal and an objective exception where such a right may be implied from the nature of the treaty.

Article 56(2) adds a procedural condition in its requirement that:

In addition to this specific notice rule, the general provisions of Article 65 also apply to the ‘[p]rocedure to be followed with respect to … withdrawal from … a treaty’. Article 65 mandates a staged procedure that provides for:

1. (a) A party proposing to withdraw to notify the other parties of its claim ‘and the reasons therefor’ (para 1);

2. (b) A moratorium, which ‘except in cases of special urgency’ shall not be less than three months within which any other party may raise an objection before any proposed withdrawal may take place (para 2);

3. (c) A requirement to seek a peaceful solution to a disputed withdrawal ‘through the means indicated in Article 33′ of the UN Charter (para 3).

Article 66 adds a specific dispute resolution procedure (provided under the Annex to the Convention) applicable to disputes under Article 65(3) that are still unresolved after 12 months enabling reference to conciliation.Footnote ¹²¹

For present purposes, three points need to be made about the application of these provisions to withdrawal from third party dispute settlement: (a) the essential link between the substantive and the procedural requirements for withdrawal; (b) the customary status of the VCLT's requirements; and (c) their application to the specific case of treaty provisions for dispute settlement.

In stressing the indivisible link between substance and procedure, both the International Law Commission and States were:

The Commission pointed out that only the provision of a procedure for notification and dispute resolution would ensure that neither the claimant nor the objecting State could be subordinated to the will of the other in circumstances in which ‘the parties by negotiating and concluding the treaty have brought themselves into a relationship in which there are particular obligations of good faith’.Footnote ¹²³ Withdrawal is not merely a unilateral act. It produces consequences for other States parties to the treaty, who must in good faith be given an opportunity to engage with the State proposing withdrawal.

What is the status of these provisions as a matter of customary international law? Here a distinction needs to be drawn between the general principles underlying Articles 56 and 65 and the more particular elements of the procedure there specified.

The existence of a general presumption in customary international law against the existence of an implied right of withdrawal was well established before VCLT.Footnote ¹²⁴ The ICJ has on more than one occasion emphasized the general obligation of good faith that attends withdrawal from treaties. In its Advisory Opinion on Egypt's membership of the WHO, the Court elaborated on the content of this obligation in the following way:Footnote ¹²⁵

It added, so far as concerns the length of the notice periods, that ‘what is reasonable and equitable in any given case must depend on its particular circumstances’.Footnote ¹²⁶

In Military and Paramilitary Activities in Nicaragua,Footnote ¹²⁷ the Court, dealing with the United States’ withdrawal of its declaration under the Optional Clause, drew ‘from the requirements of good faith’ an analogy with the law of treaties, which ‘requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity’.Footnote ¹²⁸

The Court turned to the customary status of Article 65 in Gabčikovo-Nagymaros.Footnote ¹²⁹ It rejected Hungary's claim that it was entitled to terminate the treaty on six-days’ notice and prior to suffering any injury. Citing in this context its earlier holding in the WHO Egypt Opinion, it emphasized the obligation on parties to consult and negotiate in good faith, noting that:Footnote ¹³⁰

The United States, though not a party to the VCLT, has stated that it regards its provisions on withdrawal as generally consistent with accepted principles of international law.Footnote ¹³¹

The conclusion to be drawn is that the requirement upon a party that wishes to withdraw from a treaty containing no express provision for withdrawal has an obligation to notify and consult the other parties to the treaty. This arises from the general duty of good faith and is a rule of customary international law. The precise period of notice and other procedures to be adopted must, in cases where the VCLT is not applicable between the parties, be determined in light of the particular context.Footnote ¹³²

D. Treaties Providing for Judicial Settlement

Does the VCLT's presumption of continuity apply to agreements to submit to international adjudication where no express provision for withdrawal is made? Put another way, is a treaty providing for binding judicial settlement one in respect of which ‘a right of denunciation or withdrawal may be implied by the nature of the treaty’.Footnote ¹³³ Waldock proposed that treaties for arbitration and judicial settlement were by their nature subject to an implied right of withdrawal.Footnote ¹³⁴ But this was not accepted in the deliberations in the Commission, which feared that a unilateral right of withdrawal from international adjudication could be subject to abuse.Footnote ¹³⁵ The Commission rejected any express enumeration of the categories of treaties that might of their nature imply a right of withdrawal.

Nevertheless, the view that treaties providing for binding judicial settlement are of their nature always capable of an implied right of withdrawal has persisted in the views of some publicists.Footnote ¹³⁶ This proposition is not borne out by the State practice that is cited in its support. Nor are the arguments advanced in its favour compelling.

The State practice that is generally invoked in support of an implied right of unilateral withdrawal from dispute settlement treaties is the United States’ withdrawal from the Optional Protocols to the Vienna Conventions on Diplomatic and Consular Relations.Footnote ¹³⁷ Both Protocols provide for the submission of disputes to the ICJ (or, by agreement, to arbitration).Footnote ¹³⁸ Neither of the Protocols (nor the Conventions to which they relate) contains a withdrawal clause. Yet, on 7 March 2005, the United States purported to notify the UN Secretary-General that it ‘hereby withdraws’ from the Consular Relations Protocol.Footnote ¹³⁹ On 12 October 2018, the United States gave the same notification in respect of the Diplomatic Relations Protocol.Footnote ¹⁴⁰ In neither case is there a record of objections by other States parties.

These assertions of a right of unilateral withdrawal cannot on their own carry much weight. In both cases, the notifications were given in the context of pending cases against the United States before the ICJ.Footnote ¹⁴¹ Such a notification can have no effect on the instant proceeding as the Court's jurisdiction is determined on the basis of the parties’ consent at the time of the application instituting the proceeding.Footnote ¹⁴² This is the application to judicial settlement of the more general rule of treaty law that an act of withdrawal ‘does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to [withdrawal]’.Footnote ¹⁴³ At the same time, other States parties to the Protocol might understandably have been hesitant to register their objection, lest it be seen as an intervention in the course of a contentious dispute before the Court.

The arguments advanced in favour of an implied right of withdrawal from such a treaty are not convincing. The Consular and Diplomatic Protocols are not integral to the Conventions, though they are designed to resolve disputes arising under them. On the contrary, States have a choice as to whether to accede to Protocol or to become party to the Convention alone. The plain text of both omits any reference to withdrawal, so the nature of the commitment that a State makes when it enters into the Protocol is clear. This is not surprising in view of the subject matter of the underlying Conventions. They deal with some of the most basic rules of intercourse between States. Such rules do not have a merely unilateral effect. They create a network of mutual rights and obligations between States parties that must endure over time.

The jurisdiction of international courts and tribunals is, to be sure, always founded upon the consent of States. But consent may be given on a standing basis by treaty.Footnote ¹⁴⁴ Such consent is of a different character to that given by way of a declaration under Article 36(2) of the Statute of the ICJ, which, though made within the framework of a treaty, is nevertheless the unilateral act of a State. Nor can such consent, when given by treaty, be reduced to the equivalent of a submission by ad hoc agreement, taken only in the light of the particular dispute, which consent might be given or withheld at the election of either State.

These considerations all suggest that an implied unilateral right of withdrawal from a dispute resolution convention cannot be presumed. Nor is it in the interest of States generally that it should be. In any event, all implied withdrawals require notice and the opportunity for other States to dispute the proposed action.

Laurence Helfer argues that, when viewed in a wider perspective, not all instances of withdrawal have produced irrevocable or negative effects on the stability of international relations and that exit may sometimes enhance international cooperation by promoting newer and deeper forms of treaty engagement.Footnote ¹⁴⁵ He submits that the inclusion of an express provision for withdrawal may actually encourage States to ratify multilateral treaty engagements in the first place;Footnote ¹⁴⁶ and that negotiators should tailor exit clauses to seek to condition the behaviour of States in entering such engagements.Footnote ¹⁴⁷

These propositions are of doubtful validity. There is no evidence that States’ positive decisions to bind themselves to multilateral treaty obligations are motivated by the opportunity to avoid such obligations by unilateral decision in the future. The multilateral context is quite different from that of a bilateral trade or investment treaty, where both contracting States might well provide for a time-limited duration with a right of withdrawal thereafter. In any event, the VCLT itself contains, as has been seen, a rather detailed set of procedures of general application that are designed to constrain the impetuous unilateral behaviour of States by requiring notice and consultation with other affected States. There are dangers in an approach that takes game theory as if it were applicable to a legal rule. Helfer's concept of ‘group exit’ as a ‘coordination game’Footnote ¹⁴⁸—never a term of art in international law—has been invoked in the African Union position paper vis-à-vis the strategy for withdrawal from the Rome Statute.Footnote ¹⁴⁹

Pausing at this point, the above analysis demonstrates that unilateral withdrawal from treaty engagements to submit disputes to international adjudication cannot be presumed to be an inalienable and automatic right of States. The presumption is to the contrary: that a binding treaty obligation to settle subsequent disputes by third party adjudication cannot, once assumed, be rescinded unilaterally and without the consent of other States Parties, unless the treaty so provides, and then only in accordance with its terms. In any event, withdrawal requires reasonable notice to the other States parties so as to provide them with the opportunity to negotiate. This rule is not only in accordance with the VCLT, but also finds a more general basis in customary international law, in light of the general obligations of pacta sunt servanda and good faith.

Beyond the formal constraints that international law places upon withdrawal from international adjudication, lies a wider question about the systemic implications of withdrawal and the response of the law. It is to this question that Part V now turns.

A. The Legal Limits of the Exercise of State Power

The first point is that the arguments raised by some governments for restricting the jurisdiction of international courts and tribunals should not be taken at face value. The control of the exercise of executive power in order to ensure its compliance with the norms of international law is a primary function of international adjudication. It is a function that is unlikely always to garner popularity with the officials whose conduct is under review.

The point is well illustrated by the recent study of Karen Alter and others into the backlash against international courts in Africa.Footnote ¹⁵² The authors cite three cogent examples: The Gambia's opposition to the human rights jurisdiction of the Court of the Economic Community of West African States when it upheld allegations of torture of journalists;Footnote ¹⁵³ Kenya's opposition to the jurisdiction of the East African Court of Justice following its ruling on the constitutional procedures for election to the East African Legislative Assembly;Footnote ¹⁵⁴ and Zimbabwe's opposition to the Southern African Development Community (SADC) Tribunal following its decision on Zimbabwe's land confiscation and redistribution programme.Footnote ¹⁵⁵

The same point may be made about the jurisdiction of the ICC, particularly vis-à-vis currently serving high officers of State. It is more generally true for the human rights courts and tribunals. Relatively few human rights cases concern exercises of legislative competence. The primary purpose of human rights is to protect the individual against the abuse of State power.

Finally, though this has been much obscured by the tenor of recent debates, this is the primary function of investment treaties. There are cases in which the treaty protections have been held engaged vis-à-vis the legislative branch of a State, though the situations in which this will be found are always exceptional. The great majority of cases concern abuses of executive power that result in unfair and inequitable treatment or the expropriation of property.Footnote ¹⁵⁶

In democratic States, the function of human rights is to act as a counter-majoritarian set of principles for the protection of the individual and of minorities, such that invoking the democratic principle cannot always supply the trump card. It is no accident that some of the decisions of the ECtHR that have provoked the most controversy in Member States concern the ability of marginalized persons in society to participate in the democratic process.Footnote ¹⁵⁷

B. The Collective Interest of the Mandate Providers

The second proposition is that the primary defenders of international courts and tribunals are the States that endowed the Court or tribunal with its mandate acting as a collectivity.

Yuval Shany argues that the key constituency for an international court is its mandate providers: the Member States and Organisations.Footnote ¹⁵⁸ It is those States and Organisations acting together that endow the Court with its mandate or goals and which supervise its operation. At the same time, the participation of the Contracting States in the governance of a court or tribunal maintains their stake in the operation and in the success of the judicial institution itself. This collective stake, if sufficiently strongly maintained, can withstand opportunistic criticism from individual States and constrain withdrawal. The experience of the African regional courts bears this out. In both West and East Africa, the supervising institution and the other member States, acting together, forestalled attempts at the subversion of the Court by an individual State. Only in Southern Africa was this collective action unavailing after determined political pressure.Footnote ¹⁵⁹

This leads to a further observation. Courts and tribunals that have a strong institutional structure around them, that maintains the support of its member States, generally fare better in withstanding the efforts of individual States at denunciation. The costs of withdrawal are higher if the State must engage directly with other member States that remain committed to the objectives of the court. So, the ECtHR is supported by the deep institutional structure of the Council of Europe, which consists of both the Committee of Ministers and the Parliamentary Assembly.Footnote ¹⁶⁰ The CJEU is supported by the equally deep institutional structure of the EU. The Panels and Appellate Body of the WTO DSU are closely tied to the Dispute Settlement Body, composed of member States, which considers and adopts panel reports and Appellate Body decisions.Footnote ¹⁶¹ The Rome Statute created an Assembly of States Parties to provide management oversight of the Court and also to adopt legislative texts.Footnote ¹⁶²

By contrast, no international organisation of general competence supervises the operation of dispute resolution under the Law of the Sea Convention. ITLOS and a fortiori Annex VII arbitral tribunals must fend for themselves. They each have the benefit of administrative support: from the Registry and the Bureau of the PCA respectively. The PCA is itself supervised by an Administrative Council of Member States. But this is not the equivalent of general support for the work of a court or standing tribunal.

So too investment arbitration, by its decentralized design, lacks a close relationship with its mandate providers collectively. The closest analogue is the Administrative Council of ICSID. This has provided a suitable forum for the initiation of procedural reviews.Footnote ¹⁶³ But ICSID has no monopoly on investment arbitration. The PCA and other arbitral institutions are also active in the promotion of arbitration for the settlement of disputes. UNCITRAL (rather than UNCTAD) has also provided a forum for procedural reform. In any event, none of the arbitral institutions has a mandate to tackle the substantive rules of international law found in investment treaties and applied by tribunals.

The collective support of the mandate providers is important to the survival of an international court or tribunal. It can ensure that the larger rule of law objectives that States collectively sought to enhance through the creation of the court cannot be subverted by the self-interest of any one particular State. At the same time, collective support invokes a political process. It requires the garnering of political support from a range of States, each with their own diverse interests. It also requires political resolve. These conditions may not always be present.Footnote ¹⁶⁴ With these thoughts in mind, it is also valuable to consider the role that national courts can play in the support of international adjudication, especially in the constitutional restraint of withdrawal.

C. The Role of National Courts

The third systemic implication is that international adjudication depends for its successful operation on support by national courts that are themselves committed to upholding the international rule of law as a constraint on the misuse of State power. More specifically recent practice demonstrates the valuable role that national courts may play in applying constitutional law to constrain precipitate executive acts of withdrawal.

D. Extra-National Institutional Design

The fourth point is that international courts and tribunals exist to serve particular purposes in the international legal system. But they are human institutions. There is no sacrosanctity in any particular institutional structure. Not every change in the design of a particular international adjudicatory system resulting from a critique of existing arrangements is necessarily evidence of a wider failure of international adjudication generally.

As Cesare Romano demonstrates in his instructive study on ‘Trial and error in international judicialization’Footnote ¹⁹³ international courts are fragile institutions, especially in their early days. For every successful international court or tribunal, there are many more that were envisaged by States and never started operating or fell into disuse. Equally, international systems of adjudication are on occasion capable of radical redesign if they are no longer fit for purpose. This was the case when, in 1994, the member States of the World Trade Organisation adopted a Dispute Settlement Understanding that enabled the creation of an Appellate Body to whom appeals from Panel decisions could be addressed, representing a judicialization of international trade disputes. There is a comparable development at present under consideration in the case of investment disputes with the proposal (discussed above)Footnote ¹⁹⁴ to create a new standing Multilateral Investment Tribunal with an Appellate Tribunal as an alternative to international arbitration.

At the same time, one should be wary of reading a requiem over those international courts and tribunals that are operating successfully. An empirical study published in 2018 examining the evidence of the effect of the backlash against international courts, concludes that ‘[t]here has been plenty of critique of ICs [international courts] both historically and contemporarily, but only rarely has it seriously challenged and changed the authority of ICs … [which] do not appear to be in an existential crisis, neither are they generally disappearing from the map’.Footnote ¹⁹⁵ Even in the present climate, relatively few threats of withdrawal from international adjudication have materialized, and fewer still have resulted in the demise of the court in question.

The question always must be whether the core purposes of the international legal system require an extra-national adjudicatory function. Taking the Asia-Pacific region by way of example, there are some significant gaps in the legal remedies available in particular to individuals. It has long been observed that Asia and the Pacific are ‘the only regions in the world which are yet to establish cooperative regional mechanisms for the promotion and protection of human rights’.Footnote ¹⁹⁶ The remedy of individual petition to the UN Human Rights Committee is a relatively weak form of review. The result is that, for practical purposes, individuals have only such protections against executive power as national constitutions may afford them. Yet, as the cases concerning the detention on Nauru of persons arriving in Australia's maritime migration zone demonstrate, national courts may encounter real limitations in achieving the domestic accountability of their own executive branch for its admitted involvement in extraterritorial detention in the region, once clothed with domestic legislative authority.Footnote ¹⁹⁷

This Part has argued that international adjudication, precisely because it places some legal limits on the exercise of State power in the pursuit of the rule of law, is inherently vulnerable to denunciation. International courts and tribunals may best be supported by the collective interests of the mandate providers, but national courts may also play an important role in the constraint of withdrawal. A defence of international adjudication does not imply the sacrosanctity of any particular judicial structure, since the form of adjudication should be best attuned to the function that it has to perform. This leaves finally for consideration a larger question so far implicit but not directly confronted: Why should adjudication be accorded such an important role in the international legal system, such that withdrawal is not treated as a unilateral act of executive discretion, but rather is limited by law?