Chapter 3 - Substantive Considerations and Common Interests

Summary

INTRODUCTION

When studying the case law of international courts and tribunals, two types of cases can be identified in which the common interest is invoked. First, the common interest is oft en invoked by the defending State as an exception ground. Most international Treaties include provisions that allow a State to take measures that are inconsistent with some or all of the Treaty rules ‘in the public interest’. These provisions are called ‘public interest exceptions’. Although public interest exceptions are generally included in a Treaty to allow a State to defend its national, domestic, interests, they are oft en used to protect domestic interests that coincide with common interests. Some of these provisions explicitly refer to ‘the’ public interest or the specific interests that could qualify as an exception ground, others do not. Under the latter category, this study will also consider certain interpretations of provisions, which differentiate between public interest norms and other norms on the basis of the public interest purpose, as exceptions. The reason for this is that the purpose or effect of those interpretations is to allow the State to regulate in the public interest, to provide some leeway for State measures, when no technical legal exception is available. This is different from the second type of legal argument in which the violated Treaty norm obliges the State to regulate in the common interest. In the latter situation, the common interest is used to highlight or add weight to the norm that is allegedly violated. Thus, in most of these cases the common interest will be invoked by the claimant rather than the defendant. Furthermore, the role of the court will be different here. Instead of reviewing an exception to the relevant Treaty it will review whether a strict enforcement of the Treaty is in order.

PUBLIC INTEREST EXCEPTIONS

INTERNATIONAL COURT OF JUSTICE

Emergency Clauses

A first occasion on which the ICJ has to consider public interest issues invoked by the State is when it interprets emergency and necessity clauses. A variety of international Treaties include a public interest clause, namely a provision that allows for an exception to the Treaty rules ‘in the public interest’.