Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

Heathcote, The ICJ and the Evolution of International Law

The ICJ and the Evolution of International Law: the enduring impact of the Corfu Channel case

Editor(s): Sarah Heathcote, Karine Bannelier, Theodore Christakis, Sarah Heathcote

In 1949 the International Court of Justice (ICJ) handed down its first judgment in the Corfu Channel Case. In diffusing an early Cold War dispute, the Court articulated a set of legal principles which continue to shape our appreciation of the international legal order. Many of the issues dealt with by the Court in 1949 remain central questions of international law, including due diligence, forcible intervention and self-help, maritime operations, navigation in international straits and the concept of elementary considerations of humanity. The Court’s decision has been cited on numerous occasions in subsequent international litigation.  In short, it was and remains a thoroughly modern decision — a landmark for international law; and one which today warrants reconsideration. Taking a critical approach, this book examines the decision’s influence on international law generally and on some fields of international law like the law of the sea and the law of international responsibility specifically.  It collects the commentary of a distinguished set of international law scholars, including four well-known international judges. 

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Centre: CIPL

Research theme: International Law

Is State of Necessity a Principle of Customary International Law? (Est-ce que L'état de nécessité est un principe de droit international coutumier?) (French)

Author(s): Sarah Heathcote

This article argues that State practice does not sustain the assertion, increasingly prevalent in judicial decisions and arbitral awards since 1997, that state of necessity is a principle of customary international law. Nor indeed is it 'spontaneous' law as ILC Special Rapporteur Roberto Ago had insinuated. Moreover, a considerable difficulty in establishing a customary rule of necessity is that its well established formulation is highly abstract (neither the ends to be safeguarded by its invocation, nor the means to achieve those ends, are specified by the purported rule); whilst its manifestations can only relate to specific and tangible ends. Consequently, how can one know whether a concrete situation is one premised on, and accepted as an application of, an abstract rule of necessity, or instead is premised on, or accepted as, a manifestation of an emerging or existing specific rule of exception relative to particular situations? Thus both State practice and logic indicate that necessity remains de lege ferenda; though a material source (or extra-legal inspiration) for particular rules of exception. This may well be the case in respect of an emerging exception of financial necessity.

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Centre: CIPL

Research theme: International Law

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