General defences in international adjudication

Thesis

This thesis tests the presumption of general applicability of the defences enshrined in Part I, Chapter V of the Articles on the Responsibility of States for Internationally Wrongful Acts in international adjudicative proceedings. These defences are considered ‘general’, both in terms of their personal scope (applicable to all States) and in terms of subject matter (in principle applicable with respect to all State obligations). The thesis identifies and assesses three factors, which can potentially exclude the applicability of general defences in international adjudication: firstly, applicable law limitations; secondly, the interpretation of the treaty that forms the basis of the claim and the application of the lex specialis principle; and thirdly, jurisdictional constraints of the adjudicative body in question. It examines these factors by reference to the case law of three international adjudicative bodies or systems: the International Court of Justice, the WTO dispute settlement system and investor-State arbitration. The analysis confirms that there is indeed a presumption of applicability of general defences to all international adjudicative proceedings relating to State obligations, regardless of jurisdictional constraints or applicable law limitations. This presumption, however, is rebuttable. Certain treaties reveal, through interpretation, the parties’ intention to exclude the possibility of reliance on all or some general defences for breaches of obligations enshrined thereunder. Such intention is often expressed in the form of exception clauses. The thesis examines the interaction of such clauses with general defences and suggests a methodology for assessing to what extent general defences are residually available to the Respondent, and whether and how they inform the interpretation of treaty exceptions. Lastly, the thesis demonstrates that international adjudicative bodies have the power to make incidental findings in the context of applicable defences, even if such matters would be outside the scope of their jurisdiction if they were presented before them as independent claims.

Authors: Ventouratou, A

• DOI: 10.5287/ora-jvjr7pkem
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: international adjudication; state responsibility; self-defence; countermeasures; necessity; defences; exception clauses
• Subjects: Pacific settlement of international disputes; Exceptions (law); Sanctions (international law)