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INTERNATIONALLAW REPORTS

Volume 129

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Cambridge University Press978-0-521-87919-4 - International Law Reports, Volume 129Edited by Elihu Lauterpacht, C. J. Greenwood, A. G. Oppenheimer and Karen LeeFrontmatterMore information

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Volumes published under the title:

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and Vols. 1—125Edited by Sir Elihu Lauterpacht, C.B.E., Q.C.,

and C. J. Greenwood, C.M.G., Q.C.






Lauterpacht Research Centre for International LawUniversity of Cambridge

INTERNATIONALLAW REPORTS

VOLUME129

Edited by

SIR ELIHU LAUTERPACHT, cbe qcHonorary Professor of International Law, University of Cambridge

Bencher of Gray’s Inn

C . J . GREENWOOD, cmg qcProfessor of International Law, London School of Economics and Political Science

Bencher of Middle Temple

A. G. OPPENHEIMERAssociate Editor: Civil Law Jurisdictions

Fellow of the Lauterpacht Research Centre for International Law, University of Cambridge

KAREN LEEAssistant Editor

Fellow of the Lauterpacht Research Centre for International Law, University of CambridgeFellow of Girton College, Cambridge

G R O T I U S P U B L I C A T I O N S






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CONTENTSPage

Preface vii

Editorial Note ix

Table of Cases (alphabetical) xiii

Table of Cases (according to courts and countries) xv

Digest (main headings) xvii

Digest of Cases Reported in Volume 129 xix

Table of Treaties xxxv

Reports of Cases 1

Index 751

v






PREFACE

The present volume contains decisions on a range of subjects frominternational and national courts and tribunals. The jurisprudence ofthe International Court of Justice is represented by the Advisory Opin-ion on the Wall, which is reported together with the decisions of theSupreme Court of Israel on the same subject, and the decision in the ElSalvador/Honduras case. The decisions of two ICSID arbitral tribunalsin SGS v. Pakistan and SGS v. Philippines are included, together with adecision of the Supreme Court of Pakistan in the SGS v. Pakistan case.Finally, the volume includes a number of decisions on issues of Stateimmunity, including the judgments of the Court of Appeal and Houseof Lords in Jones v. Saudi Arabia as well as a group of decisions from theEuropean Court of Human Rights and the Greek and German courtsrelating to a massacre in the Second World War.

We are very grateful to those whose work has made this volume pos-sible. Professor Greenwood prepared the summaries of SGS v. Philip-pines, the Israeli decisions and the judgments in the AIC and AIG cases.Ms Karen Lee, Assistant Editor, wrote the summaries of the Wall Advi-sory Opinion and Jones v. Saudi Arabia and saw the volume through thepress. Mr Philip van Gelder-Kimpton, LLM, summarized the SGS v.Pakistan cases. Mr Andrew Oppenheimer summarized the cases from theEuropean Court of Human Rights, Germany and Greece. Mr SandeshSivakumaran summarized the El Salvador v. Honduras judgment. TheRegistry of the Israeli Supreme Court kindly supplied the English trans-lations of the Israeli decisions. Ms Tara Grant prepared the Tables ofCases and Digest and provided general and secretarial assistance. MissMaureen MacGlashan, CMG, compiled the Table of Treaties and Index.Mrs Diane Ilott checked the copy and Mr Philip Riley read the proofs.

In addition, we would like to extend our thanks to all the otherswho have worked to complete this volume, particularly our publishers,Cambridge University Press, and typesetters, Aptara, and their staff.

E. LAUTERPACHTLauterpacht Research Centre

for International Law,University of Cambridge

C. J. GREENWOODLaw Department,London School of Economics

and Political ScienceJanuary 2007






EDITORIAL NOTE

The International Law Reports endeavour to provide within a singleseries of volumes comprehensive access in English to judicial materialsbearing on public international law. On certain topics it is not alwayseasy to draw a clear line between cases which are essentially ones of publicinternational law interest and those which are primarily applications ofspecial domestic rules. For example, in relation to extradition, the Reportswill include cases which bear on the exception of “political offences”or the rule of double criminality, but will restrict the number of casesdealing with purely procedural aspects of extradition. Similarly, while thegeneral rules relating to the admission and exclusion of aliens, especiallyof refugees, are of international legal interest, cases on the procedureof admission usually are not. In such borderline areas, and sometimesalso where there is a series of domestic decisions all dealing with asingle point in essentially the same manner, only one illustrative decisionwill be printed and references to the remainder will be given in anaccompanying note.

Decisions of International TribunalsThe Reports seek to include so far as possible the available decisions ofevery international tribunal, e.g. the International Court of Justice, orad hoc arbitrations between States. There are, however, some jurisdic-tions to which full coverage cannot be given, either because of the largenumber of decisions (e.g. the Administrative Tribunal of the UnitedNations) or because not all the decisions bear on questions of publicinternational law (e.g. the Court of Justice of the European Commu-nities). In these instances, those decisions are selected which appear tohave the greatest long-term value.

Human rights cases. The number of decisions on questions of interna-tional protection of human rights has increased considerably in recentyears and it is now impossible for the Reports to cover them all. Asfar as decisions of international jurisdictions are concerned, the Reportswill continue to publish decisions of the European Court of HumanRights and of the Inter-American Court of Human Rights, as well as“views” of the United Nations Committee on Human Rights. Decisionsof national courts on the application of conventions on human rightswill not be published unless they deal with a major point of substantivehuman rights law or a matter of wider interest to public international

ix






x EDITORIAL NOTE

lawyers such as the relationship of international law and national law, theextent of the right of derogation or the principles of the interpretationof treaties.

International arbitrations. The Reports of course include arbitralawards rendered in cases between States which involve an application ofpublic international law. Beyond this, however, the selection of arbitraldecisions is more open to debate. As these Reports are principally con-cerned with matters of public international law, they will not includepurely private law commercial arbitrations even if they are internationalin the sense that they arise between parties of different nationality andeven if one of them is a State. (For reports of a number of such awards,see Yearbook Commercial Arbitration (ed. Pieter Sanders, under the aus-pices of the International Council for Commercial Arbitration).) Butwhere there is a sufficient point of contact with public international lawthen the relevant parts of the award will be reported. Examples of suchpoints of contact are cases in which the character of a State as a party hassome relevance (e.g. State immunity, stabilization clauses, force majeure)or where there is a choice of law problem involving discussion of inter-national law or general principles of law as possible applicable laws. Thesame criteria will determine the selection of decisions of national courtsregarding the enforcement of arbitral awards.

Decisions of National TribunalsA systematic effort is made to collect from all national jurisdictionsthose judicial decisions which have some bearing on internationallaw.

Editorial Treatment of MaterialsThe basic policy of the Editors is, so far as possible, to present the materialin its original form. It is no part of the editorial function to impose onthe decisions printed in these volumes a uniformity of approach orstyle which they do not possess. Editorial intervention is limited to theintroduction of the summary and of the bold-letter rubric at the headof each case. This is followed by the full text of the original decision orof its translation. Normally, the only passages which will be omitted arethose which contain either statements of fact having no bearing on thepoints of international law involved in the case or discussion of mattersof domestic law unrelated to the points of international legal interest.The omission of material is usually indicated either by a series of dotsor by the insertion of a sentence in square brackets noting the passageswhich have been left out.






EDITORIAL NOTE xi

Presentation of MaterialsThe material in the volume has been typeset for this volume. The sourceof all such material is indicated by the reference to the “Report” in squarebrackets at the end of the case. The language of the original decision isalso mentioned there. The bold figures in square brackets in the bodyof the text indicate the pagination of the original report.

NotesFootnotes. Footnotes enclosed in square brackets are editorial inser-

tions. All other footnotes are part of the original report.

Other notes. References to cases deemed not to be sufficiently sub-stantial to warrant reporting will occasionally be found in editorial noteseither at the end of a report of a case on a similar point or under anindependent heading.

Digest of CasesWith effect from Volume 75 the decisions contained in the Reports areno longer arranged according to the traditional classification scheme.Instead a Digest of Cases is published at the beginning of each volume.The main headings of the Digest are arranged alphabetically. Under eachheading brief details are given of those cases reported in that volumewhich contain points covered by that heading. Each entry in the Digestgives the name of the case concerned and the page reference, the nameof the tribunal which gave the decision and an indication of the mainpoints raised in the case which relate to that particular heading of theDigest. Where a case raises points which concern several different areasof international law, entries relating to that case will appear under eachof the relevant headings in the Digest. A list of the main headings usedin the Digest is set out at p. xvii.

Consolidated Index and TablesA Consolidated Index and a Consolidated Tables of Cases and Treatiesfor volumes 1-80 were published in two volumes in 1990 and 1991. Afurther volume containing the Consolidated Index and ConsolidatedTables of Cases and Treaties for volumes 81-100 was published in 1996.A Consolidated Index, a Consolidated Tables of Cases and a Consoli-dated Table of Treaties for volumes 1-125 were published in 2004.






TABLE OF CASES REPORTEDALPHABETICAL

(Cases which are reported only in a note are distinguished from cases which are reportedin full by the insertion of the word “note” in parentheses after the page number of the report.)

AIC Limited v. Federal Government ofNigeria and Others 571

AIG Capital Partners Inc. and Another v.Republic of Kazakhstan (National Bankof Kazakhstan intervening) 589

Beit Sourik Village Council v. Governmentof Israel and Commander of the IDFForces in the West Bank (HCJ 2056/04)189

Distomo Massacre Case (Greek Citizens v.Federal Republic of Germany) (Case NoIII ZR 245/98) [Federal Republic of Ger-many] 556

Distomo Massacre Case (Prefecture of Voio-tia v. Federal Republic of Germany) (CaseNo 11/2000) [Greece] 513, 524 (note)

Greek Citizens v. Federal Republic of Ger-many (Distomo Massacre Case) (CaseNo III ZR 245/98) [Federal Republic ofGermany] 556

Jones v. Ministry of the Interior ofthe Kingdom of Saudi Arabia andAnother (Secretary of State for Constitu-tional Affairs and Another intervening)629

Kalogeropoulou and Others v. Greece andGermany (Application No 59021/00)537

Land, Island and Maritime Frontier Dispute(El Salvador/Honduras: Nicaragua inter-vening), Application for Revision of theJudgment of 11 September 1992 (El Sal-vador v. Honduras) (Judgment) 1

Legal Consequences of the Construction ofa Wall in the Occupied Palestinian Ter-ritory (Advisory Opinion) 37

Mara’abe and Others v. Prime Minister andOthers (HCJ 7957/04) 241

Margellos and Others v. Federal Republicof Germany (Case No 6/2002) 525, 536(note)

Mitchell and Others v. Al-Dali and Others629

Pakistan, through Secretary, Ministry ofFinance v. Societe Generale de Surveil-lance SA [Pakistan] 323

SGS Societe Generale de Surveillance SAv. Islamic Republic of Pakistan (ICSIDCase No ARB/01/13) (Procedural OrderNo 2) 360, 365

SGS Societe Generale de Surveillance SAv. Islamic Republic of Pakistan (ICSIDCase No ARB/01/13) (Disqualificationof Arbitrator) 360, 377

SGS Societe Generale de Surveillance SAv. Islamic Republic of Pakistan (ICSIDCase No ARB/01/13) (Objections toJurisdiction) 360, 387

SGS Societe Generale de Surveillance SAv. Islamic Republic of Pakistan (ICSIDCase No ARB/01/13) (Discontinuance)442 (note)

SGS Societe Generale de Surveillance SA v.Pakistan, through Secretary, Ministry ofFinance [Pakistan] 323

SGS Societe Generale de Surveillance SA v.Republic of the Philippines (ICSID CaseNo ARB/02/6) (Objections to Jurisdic-tion) 444

Voiotia, Prefecture of v. Federal Republicof Germany (Distomo Massacre Case)(Case No 11/2000) [Greece] 513, 524(note)

Wall Advisory Opinion 37

xiii






TABLE OF CASES REPORTEDARRANGED ACCORDING TO COURTS

AND TRIBUNALS (INTERNATIONAL CASES)AND COUNTRIES (MUNICIPAL CASES)

(Cases which are reported only in a note are distinguished from cases which are reportedin full by the insertion of the word “note” in parentheses after the page number of the report.)

I. DECISIONS OF INTERNATIONAL TRIBUNALS

European Court of Human Rights

2002Kalogeropoulou and Others v. Greece

and Germany (Application No59021/00) 537

International Centre for the Settlement ofInvestment Disputes

2002SGS Societe Generale de Surveillance

SA v. Islamic Republic of Pak-istan (ICSID Case No ARB/01/13)(Procedural Order No 2) (Dis-qualification of Arbitrator) 360,365, 377

2003SGS Societe Generale de Surveillance SA

v. Islamic Republic of Pakistan (ICSIDCase No ARB/01/13) (Objections toJurisdiction) 360, 387

2004SGS Societe Generale de Surveil-

lance SA v. Republic of thePhilippines (ICSID Case NoARB/02/6) (Objections to Jurisdiction)444

International Court of Justice

2003Application for Revision of the Judgment

of 11 September 1992 in the Case Con-cerning the Land, Island and MaritimeFrontier Dispute (El Salvador/Honduras:Nicaragua intervening) (El Salvador v.Honduras) (Judgment) 1

2004Legal Consequences of the Construction of

a Wall in the Occupied Palestinian Ter-ritory (Advisory Opinion) 37

II. DECISIONS OF MUNICIPAL COURTS

Germany, Federal Republic of

2003Distomo Massacre Case (Greek Citizens

v. Federal Republic of Germany) (CaseNo III ZR 245/98) 556

Greece

2000Prefecture of Voiotia v. Federal Republic

of Germany (Distomo Massacre Case)(Case No 11/2000) 513

xv






xvi TABLE OF CASES

2002Margellos and Others v. Federal Republic of

Germany (Case No 6/2002) 525

Israel

2004Beit Sourik Village Council v. Govern-

ment of Israel and Commander ofthe IDF Forces in the West Bank(HCJ 2056/04) 189

2005Mara’abe and Others v. Prime Minister and

Others (HCJ 7957/04) 241

Pakistan

2002Societe Generale de Surveillance SA v. Pak-

istan, through Secretary, Ministry ofFinance; Pakistan, through Secretary,Ministry of Finance v. Societe Generalede Surveillance SA (Order) (Judgment)323, 325, 327

United Kingdom, England

2003AIC Limited v. Federal Government of

Nigeria and Others 571

Jones v. Ministry of the Interior of theKingdom of Saudi Arabia and Another(Secretary of State for ConstitutionalAffairs and Another intervening) 629,636

2004Jones v. Ministry of the Interior of the

Kingdom of Saudi Arabia and Another(Secretary of State for ConstitutionalAffairs and Another intervening) 629,649

Mitchell and Others v. Al-Dali and Oth-ers 629, 649

2005AIG Capital Partners Inc. and Another

v. Republic of Kazakhstan (NationalBank of Kazakhstan intervening)589

2006Jones v. Ministry of the Interior of the

Kingdom of Saudi Arabia and Another(Secretary of State for ConstitutionalAffairs and Another intervening) 629,713

Mitchell and Others v. Al-Dali and Oth-ers 629, 713






DIGEST OF CASESList of Main Headings

(Those headings for which there are entries in the present volume are printed in italics.For a guide to the Digest, see the Editorial Note at p. xi.)

Air

Aliens

Arbitration

Canals

Claims

Comity

Conciliation

Consular Relations

Damages

Diplomatic Relations

Economics, Trade and Finance

Environment

Expropriation

Extradition

Governments

Human Rights


International Criminal Law

International Organizations

International Tribunals

Jurisdiction

Lakes and Landlocked Seas

Nationality

Recognition

Relationship of International Law andMunicipal Law

Reprisals and Countermeasures

Rivers

Sea

Sources of International Law

Space

State Immunity

State Responsibility

State Succession

States

Territory

Terrorism

Treaties

War and Armed Conflict

xvii






DIGEST OF CASESREPORTED IN VOLUME 129

PageArbitration

Arbitrators — Composition of arbitration tribunal — Disqualifi-cation challenge to member — Publication by member on issuesraised in claim — Continuing retainer of member’s law firm byUnited Mexican States — Appointment of member’s law firmin unrelated NAFTA case in which counsel for respondent wasappointed President of Tribunal — No facts to lead to reason-able inference that member will favour respondent on basis of anunderstanding between member and counsel for respondent —Challenge rejected — International Centre for the Settlement ofInvestment Disputes, Arbitration Tribunal

SGS Societe Generale de Surveillance SA v. Islamic Republic ofPakistan (ICSID Case No ARB/01/13) 360

International Centre for the Settlement of Investment Dis-putes — Jurisdiction — BIT — Provision for settlementof investment disputes — Whether extending to disputeover breach of contract where no allegation of breach oftreaty — Contract containing exclusive forum clause — Whetherdepriving ICSID tribunal of jurisdiction — Whether requir-ing stay of proceedings — Essentially contractual claim —Proceedings stayed pending determination of amount payableunder terms of CISS Agreement — International Cen-tre for the Settlement of Investment Disputes, ArbitrationTribunal

SGS Societe Generale de Surveillance SA v. Republic of the Philip-pines (ICSID Case No ARB/02/6) 444

Jurisdiction — ICSID Convention, Article 41 — Dutyof tribunal to judge its own competence — Provi-sional measures — ICSID Convention — Article 47 —Right to access international adjudication — Whethercapable of being constrained by decision of nationalcourt — Procedure — Disqualification challenge to arbi-tration tribunal member — ICSID Convention, Article 57 —

xix






xx DIGEST OF CASES

Arbitration (cont.)

ICSID Arbitration Rules, Rule 9(4) — International Centre forthe Settlement of Investment Disputes, Arbitration Tribunal


Procedure — ICSID Arbitration Rules, Article 19 — Stay of pro-ceedings — Exclusive jurisdiction clause binding on parties andapplicable to claim — Proceedings stayed pending determinationof amount payable — International Centre for the Settlement ofInvestment Disputes, Arbitration Tribunal


Damages

Reparation — Whether Israel under obligation to make repara-tion for all damage caused by construction of wall — Customaryinternational law — Restitution in kind — Payment of equivalentsum — Compensation in accordance with applicable internationallaw rules — International Court of Justice

Legal Consequences of the Construction of a Wall in the OccupiedPalestinian Territory (Advisory Opinion) 37

Economics, Trade and Finance

Investment protection — Bilateral investment treaty — Effectin national law of party — Provision for ICSID arbitration —Relationship to arbitration provision in contract — Whether oneprevailing over the other — Role of national courts — Whethernational court can stay proceedings before ICSID tribunal —Pakistan, Supreme Court (Appellate Jurisdiction)

Societe Generale de Surveillance SA v. Pakistan, through Secre-tary, Ministry of Finance; Pakistan, through Secretary, Ministry ofFinance v. Societe Generale de Surveillance SA 323

Investment protection — Bilateral investment treaty — Umbrellaclause — Whether elevating alleged contractual breaches intotreaty violations — Consequences of such an interpretation —Whether clear evidence existed of an intention to produce suchconsequences — International Centre for the Settlement of Invest-ment Disputes, Arbitration Tribunal







DIGEST OF CASES xxi

Investment protection — Expropriation — Whether non-payment of contract debt capable of constituting expropriation —International Centre for the Settlement of Investment Disputes,Arbitration Tribunal


Investment protection — Forum selection clause — Contractualarbitration clause covering all disputes arising from the contract —Relation to bilateral investment treaty and ICSID arbitration —Whether claims relating to breach of contract and breach of treatyare distinct — Whether contractual arbitration clause includesjurisdiction over treaty claims — Whether ICSID has exclusivejurisdiction over breach of treaty claims — Whether ICSID hasconcurrent jurisdiction over breach of contract claims — Termsof the contract — Whether the tribunal can decide factual issueswith respect to the contract which is subject to another body’sjurisdiction — Relationship between contractual claims and treatyclaims — Distinct nature of international law standards — Inter-national Centre for the Settlement of Investment Disputes, Arbi-tration Tribunal


Investment protection — International Centre for the Settle-ment of Investment Disputes (ICSID) — Enforcement of ICSIDaward — State immunity — England, High Court (Queen’s BenchDivision)

AIG Capital Partners Inc. v. Republic of Kazakhstan (NationalBank of Kazakhstan intervening) 589

Investment protection — ICSID Convention, Article 25(1) —Interpretation of “investment” — Distinguishable from an ordi-nary commercial transaction — Investment broadly defined undertreaty — Whether contract involved a “claim for money” —Whether contract in the nature of a public law concession —International Centre for the Settlement of Investment Disputes,Arbitration Tribunal







xxii DIGEST OF CASES

Economics, Trade and Finance (cont.)

Investment protection — Investment — Agreement of 1997between the Swiss Confederation and the Republic of thePhilippines on the Promotion and Reciprocal Protection ofInvestments — Article II — Investment “in the territory” of aContracting Party — Contract for the provision of services — Per-formance mostly outside the territory of the host State — Whetheran investment in its territory — Part of performance taking placein the host State — International Centre for the Settlement ofInvestment Disputes, Arbitration Tribunal


Investment protection — Investment — Agreement of 1997between the Swiss Confederation and the Republic of thePhilippines on the Promotion and Reciprocal Protection ofInvestments — Article II — Investment “in the territory” of aContracting Party — Contract for the provision of services — Per-formance mostly outside the territory of the host State — Whetheran investment in its territory — Part of performance taking placein the host State — International Centre for the Settlement ofInvestment Disputes, Arbitration Tribunal


Investment protection — Umbrella clause in investment treaty —Obligation imposed by “umbrella clause” in respect of contractualobligations — Obligation on Philippines to pay monies owingpursuant to contract — Whether enforceable through ICSID arbi-tration — Effect of exclusive forum clause in the contract — Inter-national Centre for the Settlement of Investment Disputes, Arbi-tration Tribunal


Expropriation

Bilateral investment treaty (BIT) between Swiss Confederationand Republic of the Philippines — Article VI — Whether refusalto pay monies owed under contract amounts to expropriation ofproperty — Mere non-payment of invoices where amount owing isin dispute does not amount to expropriation under terms of BIT —






DIGEST OF CASES xxiii

International Centre for the Settlement of Investment Disputes,Arbitration Tribunal


Human Rights

Access to courts — European Convention on Human Rights, Arti-cle 6(1) — State immunity — Relationship between State immu-nity and human rights — Nature of prohibition of crimes againsthumanity — Whether constituting a rule of jus cogens — Whethertaking precedence over principle of State immunity — Greece,Court of Cassation (Areios Pagos)

Prefecture of Voiotia v. Federal Republic of Germany (DistomoMassacre Case) (Case No 11/2000) 513

Access to courts — European Convention on Human Rights, Arti-cle 6(1) — State immunity — Relationship between State immu-nity and human rights — Nature of prohibition of crimes againsthumanity — Whether constituting a rule of jus cogens — Whethertaking precedence over principle of State immunity — Greece,Special Supreme Court (Anotato Eidiko Dikastirio)

Margellos and Others v. Federal Republic of Germany (Case No6/2002) 525

Access to courts — European Convention on Human Rights, Arti-cle 6(1) — State immunity — Relationship between State immu-nity and human rights — Nature of prohibition of crimes againsthumanity — Whether constituting a rule of jus cogens — Whethertaking precedence over principle of State immunity — EuropeanCourt of Human Rights (First Section)

Kalogeropoulou and Others v. Greece and Germany (ApplicationNo 59021/00) 537

Access to courts — State immunity — Whether restrictionon enforcement of judgment against assets of a foreign Statea restriction on right of access to court — European Con-vention on Human Rights, Article 6 — Whether engaged —Whether limitation legitimate and proportionate — Right toproperty — European Convention on Human Rights, First Proto-col, Article 1 — England, High Court (Queen’s Bench Division)







xxiv DIGEST OF CASES

Human Rights (cont.)

Freedom from torture — Torture Convention, 1984 — Claimantsalleging systematic torture by State officials while in custody offoreign State — Article 14 of Torture Convention, 1984 — Inter-pretation — Whether other States required to provide remedy foracts of torture committed outside their territory — Jus cogens pro-hibition of torture — Whether taking precedence over other rulesof international law — Nature of State immunity internationallaw rules — Whether States recognizing or giving effect to inter-national law obligation to exercise jurisdiction over claims arisingfrom alleged breaches of peremptory norms of international law —Whether entitlement to immunity when sued for torture — Eng-land, High Court (Queen’s Bench Division), Court of Appeal(Civil Division) and House of Lords

Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia andAnother (Secretary of State for Constitutional Affairs and Anotherintervening); Mitchell and Others v. Al-Dali and Others 629

International human rights law — Treaties — International humanrights conventions to which Israel party — International Covenanton Civil and Political Rights, 1966 — International Covenant onEconomic, Social and Cultural Rights, 1966 — Convention onthe Rights of the Child, 1989 — Applicability to Occupied Pales-tinian Territory — Relationship between international humani-tarian law and human rights law — Applicability of human rightsinstruments outside national territory — International Court ofJustice


Right of access to court — Kingdom of Saudi Arabia claimingimmunity for itself and its officials — Whether immunity incom-patible with claimants’ right of access to court — European Con-vention on Human Rights, 1950, Article 6 — England, HighCourt (Queen’s Bench Division), Court of Appeal (Civil Division)and House of Lords


Right of peoples to self-determination — United Nations Charter— General Assembly Resolution 2625 (XXV) (1970) — Inter-national Covenants on Human Rights, 1966, Article 1 — Right






DIGEST OF CASES xxv

erga omnes — Whether Israel breaching obligation to respect rightof Palestinian people to self-determination — Israeli settlementsin Occupied Palestinian Territory — Whether contrary to Article49(6) of Fourth Geneva Convention, 1949 — Legal validity —Whether wall tantamount to de facto annexation — Whether alter-ing demographic composition — International Court of Justice


Rights of Palestinians residing in territory occupied by Israel —Whether Israel’s routed wall gravely infringing those rights —Destruction or requisition of properties — Demographic changes— Right to freedom of movement — Right to work — Rightto adequate standard of living — Right to health — Right toeducation — Hague Regulations, 1907, Articles 46 and 52 —Fourth Geneva Convention, 1949, Articles 53 and 49(6) — Secu-rity Council Resolutions 446, 452 (1979) and 465 (1980) —International Covenant on Civil and Political Rights, 1966,Article 12(1) — International Covenant on Economic, Social andCultural Rights, 1966, Articles 6, 7, 11, 12, 13 and 14 — UnitedNations Convention on the Rights of the Child, 1989, Articles 16,24, 27 and 28 — Whether Israel in breach of obligations underinternational law — International Court of Justice



Advisory jurisdiction — Advisory Opinion on the Legal Conse-quences of the Construction of a Wall in Occupied Palestinian Ter-ritory — Whether binding on the courts of Israel — Whether tobe given any weight — Different factual basis put before differentcourts — Israel, Supreme Court

Mara’abe and Others v. Prime Minister and Others(HCJ 7957/04) 241

Procedure — Finality of judgment — Application for revision ofa judgment — Statute of the Court, Article 61 — Admissibility ofrequest — Discovery of “new fact” — Whether new fact of such anature as to be a decisive factor — International Court of Justice






xxvi DIGEST OF CASES

International Court of Justice (cont.)

Application for Revision of the Judgment of 11 September 1992in the Case Concerning the Land, Island and Maritime FrontierDispute (El Salvador/Honduras: Nicaragua Intervening) (El Sal-vador v. Honduras) 1

Jurisdiction

International Court of Justice — Advisory jurisdiction — Dis-cretionary power — Judicial propriety — Whether compellingreason for Court not to comply with request for advisory opin-ion — Relevance of Israel’s lack of consent to judicial settlement— Whether advisory opinion impediment to solution to Israeli–Palestinian conflict — Whether Court having sufficient informa-tion and evidence — Relevance of opinion’s usefulness — WhetherIsrael’s good faith and “clean hands” argument compelling reasonfor Court to decline request — International Court of Justice


International Court of Justice — Advisory jurisdiction — UnitedNations General Assembly adopting Resolution ES-10/14 — Gen-eral Assembly requesting advisory opinion on question set forth inresolution — Competence of Court — Article 65(1) of Statute ofInternational Court of Justice — Competence of General Assem-bly — United Nations Charter, Articles 96(1), 10 and 11(2) —Whether General Assembly exceeding its competence — WhetherGeneral Assembly contravening Article 12(1) of Charter — Inter-pretation of Article 12 — Validity of request — General Assem-bly’s Tenth Emergency Special Session — Whether properly seisedunder Resolution 377 A (V) of matter before Court — Whetherquestion submitted to Court of legal character — Alleged lack ofclarity of terms of request — Whether having effect on legal natureof question — Political aspects — Whether depriving question oflegal character — Whether depriving Court of competence —International Court of Justice


Relationship of International Law and Municipal Law

Crimes against international law — Crimes against humanity andwar crimes — Claim for compensation in civil proceedings in tortbefore municipal courts — Whether commission of such crimes






DIGEST OF CASES xxvii

by its armed forces precluding foreign State from relying on Stateimmunity — Whether such exception to immunity now recog-nized as rule of customary international law — Federal Republicof Germany, Federal Supreme Court (BGH)

Distomo Massacre Case (Greek Citizens v. Federal Republic ofGermany) (Case No III ZR 245/98) 556

Crimes against international law — Crimes against humanity andwar crimes — Claim for compensation in civil proceedings in tortbefore municipal courts — Whether commission of such crimesby its armed forces precluding foreign State from relying on Stateimmunity — Whether such exception to immunity now recog-nized as rule of customary international law — Greece, Court ofCassation (Areios Pagos)


Crimes against international law — Crimes against humanity andwar crimes — Claim for compensation in civil proceedings in tortbefore municipal courts — Whether commission of such crimesby its armed forces precluding foreign State from relying on Stateimmunity — Whether such exception to immunity now recog-nized as rule of customary international law — Greece, SpecialSupreme Court (Anotato Eidiko Dikastirio)


State Immunity Act 1978 — Interpretation — Human Rights Act1998, Section 3 — Whether Section 1(1) of State Immunity Act1978 could be read in way compatible with Convention rights— European Convention on Human Rights, 1950, Article 6 —Whether State Immunity Act 1978 could be interpreted in mannerpermitting immunity to be refused to Kingdom of Saudi Arabiaand its officials in respect of torture claims — England, High Court(Queen’s Bench Division), Court of Appeal (Civil Division) andHouse of Lords

Jones v. Ministry of the Interior of the Kingdom of Saudi Ara-bia and Another (Secretary of State for Constitutional Affairsand Another intervening); Mitchell and Others v. Al-Dali andOthers 629

Treaties — Customary law — General principles — Pro-portionality — Whether a general principle of international






xxviii DIGEST OF CASES

Relationship of International Law and Municipal Law (cont.)

law — Applicability in Israeli courts — Conditions of proportion-ality — Israel, Supreme Court

Beit Sourik Village Council v. Government of Israel and Comman-der of the IDF Forces in the West Bank (HCJ 2056/04) 189

Treaties — Customary law — General principles — Proportional-ity — Whether a general principle of international law — Applica-bility in Israeli courts — Conditions of proportionality — Israel,Supreme Court


Treaties — Pakistan — Bilateral investment treaty — Whetherpart of the law of Pakistan — Whether capable of creating rightsunder the law of Pakistan — Role of the courts of Pakistan —Pakistan, Supreme Court (Appellate Jurisdiction)

Societe Generale de Surveillance SA v. Pakistan, through Secre-tary, Ministry of Finance; Pakistan, through Secretary, Ministry ofFinance v. Societe Generale de Surveillance SA 323

State Immunity

Human rights — Relationship between law of State immunityand human rights — State Immunity Act 1978 — Whether Actdisproportionate — Whether Act inconsistent with a peremp-tory norm of international law prohibiting torture — Whetherapplication of Act infringing claimants’ right of access to a courtunder Article 6 of European Convention on Human Rights,1950 — Whether English courts having jurisdiction to enter-tain claims — Whether States recognizing or giving effect tointernational law obligation to exercise jurisdiction over claimsarising from alleged breaches of peremptory norms of interna-tional law — Sources of international law — Treaties — Judicialdecisions — Reputed publicists — Whether recognizing excep-tion to State immunity for torture cases in civil proceedings —Whether ancillary procedural rule entitling or requiring States toassume civil jurisdiction over other States in alleged torture cases —England, High Court (Queen’s Bench Division), Court of Appeal(Civil Division) and House of Lords







DIGEST OF CASES xxix

Immunity from execution — Bank accounts — Property of cen-tral bank — Source of funds and purpose for which those fundsintended irrelevant — Other bank accounts — Whether in use forcommercial purposes — Dormant accounts — Evidence of foreignState’s Head of Mission — England, High Court (Queen’s BenchDivision)

AIC Limited v. Federal Government of Nigeria andOthers 571

Immunity from execution — Enforcement of arbitration awardagainst foreign State — Bank accounts — Property of centralbank — Source of funds and purpose for which those fundsintended irrelevant — Whether funds intended for use for com-mercial purposes — Human rights — Whether restriction onenforcement against assets contrary to the European Conventionon Human Rights, Article 6 or Article 1 of the First Protocol —Evidence of foreign State’s Head of Mission — England, HighCourt (Queen’s Bench Division)


Immunity from execution — Human rights — Whether Stateimmunity compatible with right of access to courts — EuropeanConvention on Human Rights, 1950, Article 6(1) — Exception toimmunity for tort claims in civil proceedings — European Courtof Human Rights (First Section)

Kalogeropoulou and Others v. Greece and Germany (ApplicationNo 59021/00) 537

Jurisdiction — Doctrine of restrictive immunity — Exception toimmunity for civil claims in tort — European Convention on StateImmunity, 1972 — Article 11 — Whether now reflecting rule ofcustomary international law — Immunity from civil proceedingsin respect of acts of armed forces — Article 31 of Convention —Whether such immunity absolute — Whether any exception forwar crimes or crimes against humanity violating jus cogens and notdirectly connected with furtherance of armed conflict — Whethercommission of such acts constituting tacit waiver of immunity —Federal Republic of Germany, Federal Supreme Court (BGH)







xxx DIGEST OF CASES

State Immunity (cont.)

Jurisdiction — Doctrine of restrictive immunity — Exception toimmunity for civil claims in tort — Tort committed in forum Stateby agents of defendant State — European Convention on StateImmunity, 1972 — Article 11 — Whether now reflecting rule ofcustomary international law — Immunity from civil proceedingsin respect of acts of armed forces — Article 31 of Convention —Whether such immunity absolute — Whether any exception forwar crimes or crimes against humanity violating jus cogens and notdirectly connected with furtherance of armed conflict — Whethercommission of such acts constituting tacit waiver of immunity —Greece, Court of Cassation (Areios Pagos)


Jurisdiction — Doctrine of restrictive immunity — Exception toimmunity for civil claims in tort — Tort committed in forum Stateby agents of defendant State — European Convention on StateImmunity, 1972 — Article 11 — Whether now reflecting rule ofcustomary international law — Immunity from civil proceedingsin respect of acts of armed forces — Article 31 of Convention —Whether such immunity absolute — Whether any exception forwar crimes or crimes against humanity violating jus cogens and notdirectly connected with furtherance of armed conflict — Whethercommission of such acts constituting tacit waiver of immunity —Greece, Special Supreme Court (Anotato Eidiko Dikastirio)


Jurisdiction — Human rights — Whether State immunity com-patible with right of access to courts — European Conventionon Human Rights, 1950, Article 6(1) — Exception to immunityfor tort claims in civil proceedings — Greece, Court of Cassation(Areios Pagos)


Jurisdiction — Human rights — Whether State immunity com-patible with right of access to courts — European Convention onHuman Rights, 1950, Article 6(1) — Exception to immunity fortort claims in civil proceedings — Greece, Special Supreme Court(Anotato Eidiko Dikastirio)







DIGEST OF CASES xxxi

Jurisdictional immunity — Alleged violations of jus cogens — Tor-ture — Claims for damages for torture committed outside forumState — Whether defendant State immune — General provisionfor immunity — Whether exception for jus cogens violation —State Immunity Act 1978, Sections 1(1) and 5 — Whether Sec-tion 1(1) of the Act should be read subject to implied exceptionfor claims which alleged torture — Whether English courts havingjurisdiction — England, High Court (Queen’s Bench Division),Court of Appeal (Civil Division) and House of Lords


Jurisdictional immunity — General rule that foreign State immuneunless an exception to immunity is applicable — United KingdomState Immunity Act 1978 — Proceedings for registration of judg-ment against foreign State given by court in that foreign State —Whether State entitled to immunity — Whether proceedings relat-ing to commercial transaction — England, High Court (Queen’sBench Division)

AIC Limited v. Federal Government of Nigeria and Others 571

Jurisdictional immunity — Officials — Definition of State —Whether including officials — Whether officials acting in officialcapacity entitled to same immunity as State — Whether tortureofficial act attracting immunity ratione materiae — Whether excep-tion applying — State Immunity Act 1978 — Whether Englishcourts having jurisdiction — England, High Court (Queen’sBench Division), Court of Appeal (Civil Division) and House ofLords


State Responsibility

Legal consequences arising from Israel’s construction of wall —Whether responsibility of Israel engaged under internationallaw — Whether Israel bound to comply with its internationalobligations — Whether Israel obliged to put an end to any interna-tionally wrongful act — Obligations upon all States under UnitedNations Charter and international law — Additional obligation






xxxii DIGEST OF CASES

State Responsibility (cont.)

upon States parties to Fourth Geneva Convention, 1949 — Obli-gation upon both Israel and Palestine to observe rules of interna-tional humanitarian law — Protection of civilian life — Require-ment of implementation in good faith of all relevant SecurityCouncil resolutions — International Court of Justice


Territory

Occupied Palestinian Territory — Occupying Power Israel con-structing wall in Occupied Palestinian Territory — Whether con-trary to international law — Relevant rules and principles of inter-national law — United Nations Charter — Other treaties —Customary international law — Relevant General Assembly andSecurity Council resolutions adopted pursuant to Charter —Applicability to Palestinian Occupied Territory — Occupied ter-ritory — Definition — Status — Territorial acquisition by threator use of force — Self-determination of peoples — Internationalhumanitarian law — International human rights conventions —Whether wall as routed gravely infringing human rights of Pales-tinians residing in occupied territory — Whether wall necessaryto attain Israel’s security objectives — Whether justified by mili-tary exigencies, national security or public order — InternationalCourt of Justice


Status — Occupation — Occupied territories in which Israel hav-ing status of occupying Power — Customary international law —Article 42 of Hague Regulations of 1907 — Threat or use offorce — Article 2(4) of United Nations Charter — Territorialacquisition resulting from threat or use of force — Illegality —Security Council Resolution 242 (1967) — General AssemblyResolution 2625 (XXV) (1970) — Whether wall tantamount tode facto annexation — International Court of Justice


Terrorism

War and armed conflict — Israel claiming wall to protect fromterrorist attacks — Self-defence — Article 51 of United Nations






DIGEST OF CASES xxxiii

Charter — Whether relevant — Security Council Resolutions1368 and 1373 (2001) — Whether Israel could invoke — Stateof necessity — Whether construction of wall only way for Israelto safeguard essential interest against grave and imminent peril —International Court of Justice


War and Armed Conflict

Belligerent occupation — West Bank territories occupied by Israelsince 1967 — Whether the law of belligerent occupation stillapplicable — Hague Regulations on Land Warfare, 1907 —Whether declaratory of customary international law — GenevaConvention No IV respecting the Protection of Civilian Per-sons, 1949 — Whether applicable — Powers of occupationauthorities — Taking of land — Construction of security bar-rier — Whether permitted — Whether proportionate — Israel,Supreme Court

Beit Sourik Village Council v. Government of Israel and Comman-der of the IDF Forces in the West Bank (HCJ 2056/04) 189

Belligerent occupation — West Bank territories occupied by Israelsince 1967 — Whether the law of belligerent occupation stillapplicable — Hague Regulations on Land Warfare, 1907 —Whether declaratory of customary international law — GenevaConvention No IV respecting the Protection of Civilian Per-sons, 1949 — Whether applicable — Powers of occupationauthorities — Taking of land — Construction of security bar-rier — Whether permitted — Whether proportionate — Israel,Supreme Court


Enforcement of the laws of war — Compensation andreparations — Crimes against humanity and war crimes — Claimfor compensation brought by relatives of victims before municipalcourts — Atrocities committed by German forces during SecondWorld War — Greece, Court of Cassation (Areios Pagos)







xxxiv DIGEST OF CASES

War and Armed Conflict (cont.)

Enforcement of the laws of war — Compensation and repara-tions — Crimes against humanity and war crimes — Claim forcompensation brought by relatives of victims before municipalcourts — Atrocities committed by German forces during SecondWorld War — Greece, Special Supreme Court (Anotato EidikoDikastirio)


Enforcement of the laws of war — Compensation andreparations — Crimes against humanity and war crimes — Claimfor compensation brought by relatives of victims before munici-pal courts — Atrocities committed by Nazi German forces duringSecond World War — Whether reparations claims by individualsprecluded by London Debt Agreement, 1953 — Whether Fed-eral Republic of Germany liable as successor State following entryinto force of Treaty of Final Settlement with respect to Germany,1990 — Federal Republic of Germany, Federal Supreme Court(BGH)


International humanitarian law — Treaties — Fourth GenevaConvention relative to Protection of Civilian Persons in Time ofWar, 1949 — Applicability to Occupied Palestinian Territory —Hague Regulations annexed to Fourth Hague Convention on Lawsand Customs of Warfare on Land, 1907 — Customary interna-tional law — International Court of Justice


Israeli–Palestinian conflict threatening international peace andsecurity — United Nations Charter — United Nations —Organs — General Assembly — Security Council — Article 12 ofUnited Nations Charter — Whether any further action required —Requirement of implementation in good faith of all relevant Secu-rity Council resolutions — Security Council Resolutions 242(1967) and 338 (1973) — “Roadmap” approved by Security Coun-cil Resolution 1515 (2003) — Negotiated solution to outstandingproblems — Establishment of Palestinian State — Peace and secu-rity in Middle East region — International Court of Justice







TABLE OF TREATIES

This table contains a list, in chronological order according to the date ofsignature, of the treaties referred to in the decisions printed in the presentvolume. It has not been possible to draw a helpful distinction between treatiesjudicially considered and treaties which are merely cited.

In the case of bilateral treaties, the names of the parties are given in alpha-betical order. Multilateral treaties are referred to by the name by which theyare believed commonly to be known. References to the texts of treaties havebeen supplied, including wherever possible at least one reference to a text inthe English language. The full titles of the abbreviated references will be foundin the list of Abbreviations and Sources printed in the volume containing theConsolidated Table of Treaties to Volumes 1–125.

1878July 13 Austria/Hungary, France, Germany, Great Britain, Italy, Rus-

sia, Turkey, Treaty of Berlin (Treaty for the Settlement ofAffairs in the East) (153 CTS 171; 3 Martens NRG, 2ndser. 449; 69 BFSP 749; 12 Traites 316)

Art. 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

1907Oct. 18 Hague Convention No IV on the Laws and Customs of War-

fare on Land (205 CTS 277; USTS 539; 3 Martens NRG, 3rdser. 461; 100 BFSP 338; 2 US Treaties 2269; UKTS 9 (1910),Cd 5030; Roberts and Guelff, Documents on the Laws of War,3rd edn 67)

Art. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528, 536, 565-7

Regulations annexed to the Convention (Roberts and Guelff,Documents on the Laws of War, 3rd edn 73) . . . . . . . . . . . . . . . 252–3

Section IIArt. 23(g) . . . . . . . . . . . .104, 131, 208, 212, 255-7, 271, 282

Section III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91Art. 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 566-7Art. 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 254-63, 519Art. 46 . 104, 109, 111, 131, 161, 205-6, 211-12, 254, 282,

285-6, 521, 528, 566-7Art. 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 566-7Art. 52 . . . 104, 109, 131, 208, 212, 255-7, 271, 282, 285-6

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