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CHAPTER III

EXTRATERRITORIAL APPLICATION OF DOMESTICENVIRONMENTAL LAW

1. Grounds for Extraterritorial Jurisdiction

(1) Lack of the relevant international law rules

As discussed in the previous chapter on the Tuna/Dolphin dispute,there is no treaty specifically relevant to the protection of dolphins,such as exists for certain species of whales. There is also no treatypertinent to the use of perse-seine nets, unlike for long driftnetswhich are now prohibited by a regional convention. The same is truewith the question of sustainable forestry to which I referred in con-nection with the Austro-Malaysian dispute ; the 1992 Rio Confer-ence agreed on the Forestry Statement, but it is not a binding instru-ment. Assume then that there are no international law rules, eitherin treaty law or customary law, applicable to the incidental killingof dolphins and to the eco-labelling of tropical wood. The situa-tion therefore entails the unilateral, extraterritorial application ofdomestic law, in this case either the Marine Mammal ProtectionAct (MMPA) of the United States to the conduct of Mexican fisher-men on the high seas, or Austria’s legislation which affected thelogging practice in Malaysia.

A fundamental principle of international law is that the scope ofapplication of a country’s public law is limited to its territory, andaccordingly any extraterritorial extension of its sovereign power isunjustified, except in two cases. One exception is for the purpose ofregulating activities in areas beyond national jurisdiction such as thehigh seas, and the other is for certain exceptional cases where extra-territorial jurisdiction is permitted under duly prescribed conditions.

(2) Legal régime of the high seas

First, the basic principle of the legal régime of the high seas isflag-State jurisdiction, which means that each State may exercise itsjurisdiction to regulate the conduct of the vessels flying the flag of

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120. There may be certain differences in the question of extraterritorialitybetween the situation where the measures in question are targeted towards activi-ties in the global commons and where they are targeted towards those in the ter-ritory of other States. As far as the high seas are concerned, however, there is afirmly established set of rules regarding personal jurisdiction over ships, and thenineteenth-century theory that ships are the floating territories of the flag Statesis no longer supported. In our examination of the Tuna/Dolphin dispute, we canrely on the theory which is normally asserted for extraterritorial jurisdictionbased on the objective territoriality principle, as discussed below.

121. With regard to the categories of jurisdiction, see the American LawInstitute, Restatement of the Law, Third, The Foreign Relations Law of theUnited States, Vol. 1, 1987, pp. 230-234.

that State. The State does not have the jurisdiction to regulate theconduct of the vessels and the people on board if the vessels areregistered in other States. In the Tuna/Dolphin case, then, the UnitedStates did not have jurisdiction over vessels flying the Mexican flagor over the fishermen on board those vessels.

In this regard, I find the references to the law of the sea in thedecision of Tuna-II somewhat confusing. The panel report refers tothe question of whether Article XX, paragraphs (b) and (g), can beapplied to the United States policy to conserve dolphins on the highseas, and surprisingly, the panel says “yes”. However, reading thereport carefully, we find that all that the panel really says is that theUnited States has jurisdiction “over its [own] nationals and vessels”on the high seas (paras. 5.17, 5.22, emphasis added). The panel issimply stating the obvious, which is irrelevant to the present case.What is disputed here is whether the United States has jurisdictionover the Mexican fishermen on the high seas. The passages qnotedin the panel report of the decision seem rather misleading.

(3) Possible situations of extraterritorial jurisdiction

If extraterritorial application of the MMPA is to be justified, itshould be justified on a different ground. Remember that we arespeaking here of prescriptive (or, legislative) jurisdiction, that is, theState’s competence to legislate and regulate the conduct of aliensoutside its territory120. Enforcement jurisdiction is not an issue in thepresent case, because the trade restriction of the Mexican tuna wasone of enforcement at the border, that is, within the territory, of theUnited States121.

There are five principles by which extraterritorial jurisdiction canbe asserted. First, the objective territoriality principle, which is con-

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122. The passive personality principle has not been generally accepted forordinary torts or crimes, although in its controversial decision in the S.S. Lotuscase, the Permanent Court of International Justice seemingly recognized thejurisdiction of the State of the victims’ nationality, Turkey (see footnote 125,infra). The principle is, however, increasingly asserted to be applicable to terror-ist and other organized attacks on a State’s nationals by reason of their national-ity (Restatement Third, op. cit., supra footnote 121, p. 240).

123. The protective principle is recognized as applicable to offences directedagainst the security of the State or other offences threatening the integrity ofgovernmental functions that are generally recognized as crimes by developedlegal systems, e.g. espionage, the counterfeiting of the State’s seal or currency,falsification of official documents, etc. (ibid., p. 240).

124. Ibid., p. 254.

sidered applicable, for example, where an offence begins in countryX and is completed in country Y, and the latter country asserts itsjurisdiction. This is a most pertinent principle for our discussion, andI will come back to it in a moment. There is also the subjective ter-ritoriality principle (the case, in the example just mentioned, wherecountry X asserts its jurisdiction), and the passive personality prin-ciple (the case where the country of the victims’ nationality assertsits jurisdiction)122. These two principles are irrelevant to our consid-eration. Two more principles might justify extraterritorial jurisdic-tion : the protective and universality principles. The protective prin-ciple is applicable only in the most exceptional circumstances wherethe security of the State is at stake123, and the universality principleis applicable to certain offences such as slave trade, piracy andhijacking, offences recognized by the community of nations as ofuniversal concern124.

(4) The objective territoriality principle

The question on extraterritorial jurisdiction has been frequentlydiscussed in the contexts of anti-trust and criminal laws. With regardto the Tuna/Dolphin dispute, though, it is clear that the objective terri-toriality principle is most pertinent. While no State may enforce itsjurisdiction outside its territory, the State may not be precluded incertain situations from prescribing legal norms (prescriptive or legis-lative jurisdiction) which give effect to the conduct outside its terri-tory. The Permanent Court of International Justice addressed thisproblem in its decision on the famous case of S.S. Lotus, as follows :

“Far from laying down a general prohibition to the effectthat States may not extend the application of their laws and the

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125. PCIJ, Series A, No. 10 (1927), p. 19.126. F. A. Mann, “The Doctrine of Jurisdiction in International Law”, in

Studies in International Law, Oxford, 1973, pp. 39-41.127. Werner Meng, “Extraterritorial Effects of Administrative, Judicial and

Legislative Acts”, in R. Bernhardt, ed., Encyclopaedia of Public InternationalLaw, Vol. II, 1992, p. 340.

128. Mann, op. cit., supra footnote 126, pp. 25-27.

jurisdiction of their courts to persons, property and acts outsidetheir territory, [international law] leaves them in this respect awide measure of discretion which is only limited in certaincases by prohibitive rules ; as regards other cases, every Stateremains free to adopt the principles which it regards as best andmost suitable.”125

Nonetheless, it is generally accepted that extraterritorial jurisdictioncannot be asserted without a “close, substantial, direct, weighty”126

or “reasonable” point of contact (“minimum contact rule”127). TheLotus decision is in part considered as recognizing the principle ofpassive personality as a point of contact, and was much criticized,with a contrary rule adopted in subsequent State practice128. Thecase is more appropriately observed as a matter of concurrent juris-diction where the offence consists of an act originating on board avessel under one flag (France in this case) with effects felt onanother vessel under another flag-State jurisdiction (Turkey). TheLotus case, as seen from this perspective, is a precedent of the objec-tive territoriality principle.

The 1972 New York resolution of the International Law Associa-tion (ILA) on the extraterritorial application of anti-trust legislationcan be used as a guideline for our consideration of problems otherthan those in the anti-trust field. Article 3, paragraph 1, of the reso-lution, referring to the objective territoriality principle, reads :

“A State has jurisdiction to prescribe rules governing theconduct of an alien outside its territory, provided,

(a) part of the conduct being a constituent element of theoffence occurs within the territory and,

(b) acts or omissions occurring outside the territory are con-stituent elements of the same offence.”

Paragraph 2 of the same Article provides :

“Whereas municipal law is the sole authority for the purpose

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129. Report of the International Law Association, 55th Conference, NewYork, 1972, pp. xix-xx, 107-175.

130. Meng, op. cit., supra footnote 127, p. 341.131. U.S. v. Aluminum Co. of America (ALCOA), 148 F. 2d 416, 443 (2nd Cir.

1945).132. Restatement Third, op. cit., supra footnote 121, pp. 237-254.133. Meng, op. cit., supra footnote 127, p. 341.

of ascertaining the constituent elements of a particular offence,international law retains a residual but overriding authority tospecify what is or is not capable of being a constituent elementfor the purpose of determining jurisdictional competence.”129

It is important to note that this resolution requires rather strictascertainment of the territorial link in establishing the extraterritorialjurisdiction and that it stresses the authority of international law indetermining the jurisdictional competence.

In this respect, a word on the so-called “effects doctrine” may beappropriate, as it is considered to be a variation of the objective ter-ritoriality principle130. The jurisprudence of the United States sincethe famous ALCOA decision131, and thus the Restatement Third, takethe position that a State may exercise jurisdiction based on effects inthe State, when the effect or intended effect is “substantial” and theexercise of jurisdiction is “reasonable”132. However, in the field ofeconomic regulation, the extraterritorial application of domestic lawon the basis of “effects” is extremely controversial, and in my view,without generally accepted qualifications (on which the internationalcommunity has not reached any consensus), the principle cannot beconsidered as reflecting the existing international law rules133.

(5) The objective territoriality principle as applied to the Tuna/Dolphin case

The formulation above of the objective territoriality principle wellreflects the state of the existing international law applicable to ourcase under consideration. Note that the ILA resolution discussedabove requires that acts or omissions occurring outside the territoryare constituent elements of the offence and that part of the conductconstituting the offence must occur within the territory. If we applythis rule to the Tuna/Dolphin case, then the act of incidental killingof dolphins on the high seas should be regarded as having at least adirect link to the act of importing tuna into the United States. Actu-


134. EC Council Regulation No. 3254/91 of 4 November 1991, prohibitingthe use of leghold traps in the Community and the introduction into the Commu-nity of pelts and manufactured goods of certain wild animal species originatingin countries which catch them by means of leghold traps or trapping methodswhich do not meet international humane trapping standards. James Cameron etal., eds., Trade and the Environment : The Search for Balance, Vol. II, CameronMay, 1994, pp. 581-584.

ally, however, the protection of dolphins and importation of tuna inthis context seem to be two separate, although perhaps remotely con-nected, acts, and thus the position of the United States would not besupported under the rule stated by the ILA resolution. The same istrue with European Union regulation on the prohibition of importa-tion of fur of animals caught by the cruel leghold-trap method134.

In more general terms, I submit that the relationship between theproduction process and the product in the context of extraterritorialjurisdiction can be understood by recognizing the process as a cause,and the product a result of the process. In other words, under theobjective territoriality principle we need a direct causal link betweenthe two as constituent elements of the same offence, and at least apart of the offensive act should take place within the country whichasserts its jurisdiction over the “production process and productionmethod” in question. As I mentioned in the previous chapter, wemust avoid slippery-slope arguments on PPMs, especially in the con-text of extraterritorial application of domestic regulations.

2. Unilateral Measures and the Concept of Opposability

I would like to expand the scope of our discussion slightly andexamine the question of opposability of the unilateral measurestaken by the United States under the MMPA. Recall that, in theTuna-I report, the GATT panel concluded that

“if the extrajurisdictional interpretation of Article XX (g)suggested by the United States were accepted, each contract-ing party could unilaterally determine the conservation policiesfrom which other contracting parties could not deviate withoutjeopardizing their rights under the General Agreement”,

thus the measures in question, according to the opinion of the panel,would undermine the multilateral framework of GATT (para. 5.32).I am basically in favour of this conclusion, but with certain reserva-tions. This is where the concept of opposability should be con-

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135. Opposability is a notion which refers to a “limited” (rather than full-fledged) legal effect of an act or measure. It also refers to an “external” and indi-rect effect vis-à-vis third parties who are not directly involved in the act ormeasure in question (cf. Jun’ichi Eto, “Kokusaiho ni okeru Taikosei no Gainen”(The Concept of Opposability in International Law), Toyo Hogaku (Toyo Univ.Law Review), Vol. 36, 1992, pp. 87 f., 92-95).

Opposability can be used not only in the context of a State’s act or measurebut also with reference to the effect of an international organization’s externalaction on the third parties, that is, non-members, or the members in similar situa-tions to which its action is directed. See, for instance, the advisory opinion of theInternational Court of Justice of 21 June 1971 on the Legal Consequences forStates of the Continued Presence of South Africa in Namibia (South West Africa)notwithstanding Security Council Resolution 276 (1970) (ICJ Reports 1971,p. 16). This aspect of the question is, however, outside the ambit of our presentconsideration (cf. J. G. Starke, International Law, 11th ed. (I. A. Shearer, ed.),1994, pp. 80-81. See also, Shinya Murase et al., Gendai Kokusaiho no Shihyo(Indicators of the Present International Law), Yuhikaku, 1994, pp. 42-47).

136. In France, in particular, the concept of opposabilité has been frequentlyemployed in the civil-law context of the third party effect of a contract (cf. J.Duclos, L’opposabilité : Essai d’une théorie générale, Bibliothèque de droitprivé, tome 179, 1984, quoted in Eto, op. cit., supra footnote 135, pp. 91 f.).Against this legal background, the concept of opposability seems to be importantfor explaining the third party effect of treaties by French international lawyers(cf. Paul Reuter, Introduction au droit des traités, 2nd ed., 1985, pp. 140 f).

137. The Fisheries case (1951) and the Fisheries Jurisdiction case (1974) aremost important as we discuss them in detail below. The idea of opposability (orinopposability) or similar concepts has been adopted by the Court in the deci-sions of the Rights of Nationals of the United States in Morocco (1952), Notte-bohm (1955), Temple of Preah Vihear (1962), Barcelona Traction, Light andPower Company, Limited (1970), United States Diplomatic and Consular Staffin Tehran (1980), Frontier Dispute (1986) and East Timor (1995) cases.

sidered, as I believe that the concept is particularly helpful to betterunderstand the juridical effect of certain unilateral measures in thecontexts of dispute settlement and the international law-making pro-cess.

(1) Jurisprudential notion of opposability and its utility

Used here, the concept of opposability is “a limited external legaleffect of the measures taken by a State”135. The notion essentiallyhas been developed in the civil-law countries136, and therefore maynot be a familiar concept to those educated primarily in common-lawjurisdictions. The International Court of Justice has in the pastreferred to this concept when it has found that the relevant legalsituation cannot comfortably or adequately be described in terms ofclear-cut legal/illegal criteria137. Professor J. G. Stark, for instance,shed light on this concept in his article published in 1970, in whichhe observed, “kept within limits, opposability is a helpful concept, a


138. J. G. Starke, “The Concept of Opposability in International Law”, Aus-tralian Yearbook of International Law, Vol. 5, 1968-1969, pp. 1 f.

139. Soji Yamamoto, “Ippoteki Kokunaisochi no Kokusaiho Keisei Kinou”(The Function of Unilateral Measures by a State in the International Law-making Process), Jochi Hogaku Ronshu (Sophia Univ. Law Review), Vol. 33,1991, pp. 47-86 ; id., Kokusaiho (International Law), 2nd ed., Yuhikaku, 1994,pp. 40-41.

140. “Unilateral measures” should not be confused with “unilateral acts” suchas recognition of a new State or submission of a case to ICJ under the optionalclause of the Statute. A unilateral act is a juridical act whose conditions andlegal effects are defined in the established rule of international law, whether cus-tomary law (such as the law concerning recognition of States) or treaty law(such as Article 36, paragraph 2, of the ICJ Statute). A unilateral measure is, bycontrast, an action of a State taken under its domestic law for which there is noclearly established rule of international law. Soji Yamamoto, “Kokusai FunsoYoin toshite no Taikoryoku to sono Henshitsu” (The Changing Function ofOpposability as Cause of Action in International Dispute), The Yachiyo Journalof International Studies, Vol. 6, No. 1, 1993, pp. 63-88.

methodological aid to reasoning and decision”138. In Japan, Profes-sor Soji Yamamoto has made significant contributions to clarifyingthe concept and its implications in international law139. I believe thatthe idea of opposability has great serviceability for the purpose ofjuridical analysis and characterization of so-called “unilateral meas-ures” as distinguished from “unilateral acts”140.

For example, the concept of opposability can help place in contextunilateral measures such as those taken by the United States underthe MMPA and under Section 301 of the Trade Act of 1974, actionsthat were very unpopular outside the United States. If one is asked tochoose between unilateralism and multilateralism, without doubt themodel choice should be the latter. However, there is also a view thatunilateralism should be rejected only when a relevant multilateralmechanism is available as an effective means to provide adequateremedies for justifiable grievances. In addressing this issue, oppos-ability is quite a useful concept to characterize certain legal effectsof unilateral measures. Its utility from an analytical perspective isparticularly evident in describing the international law-making pro-cess that originates from unilateral measures based on domesticlaws, also called the spill-over effects of domestic laws, where rele-vant rules of international law are lacking, emerging or changing.The concept may also be helpful in differentiating between the casesof permissible and non-permissible unilateral measures dependingupon the character and availability of appropriate dispute settlementmechanisms. The practical utility of this concept also cannot beunderestimated. The notion of opposability will likely serve to

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141. John H. Jackson, William J. Davey and Alan O. Sykes, Jr., Legal Prob-lems of International Economic Relations, 3rd ed., West, 1995, pp. 815-840. Weare concerned here only with the “regular” 301 (19 USC §§ 2411 (Supp. VI, 1995)) ;“super” 301 (19 USC § 2420 (a)-(b) (Supp. VI, 1995)) and “special” 301 (19USC §§ 2242 (a), 2412 (b) (2) (Supp. VI, 1995)) are also closely related. Profes-sor Thomas Schoenbaum describes the ironical position of the United Statestrade policy : “. . . political support for renewed trade liberalism in the UnitedStates may be dependent on legitimizing unilateralism that successfully combatsthe perception of unfair trade practices and closed markets of US trading part-ners” (Thomas J. Schoenbaum, “The Theory of ‘Contestable Markets’ in Inter-national Trade : A Rationale for ‘Justifiable’ Unilateralism to Combat Restric-tive Business Practices ?” (mimeograph, on file with the author), 1995, p. 7 ; theEuropean Union has also adopted a strengthened version of Section 301 after theconclusion of the Uruguay Round that allows retaliation against “illicit commer-cial practices” by foreign trading partners, Council Regulation (EC) No. 3286/94of 22 December 1994, Official Journal of the European Communities, No. L.349/71 (31 December 1994).

depoliticize the issue involving unilateral measures, lead to equitablesolution of disputes, and promote negotiation and consultation on thebasis of good faith between the parties.

(2) “Unfair trade practice” and Section 301

Let us briefly look into Section 301 of the United States TradeAct of 1974, undeniably the most notable example of unilateralmeasures today. The Section provides for mandatory and discretion-ary retaliatory actions against a foreign country’s “unfair tradepractice”. While mandatory actions for “a violation of a tradeagreement” and “unjustifiable practice” are considered to beGATT-consistent, a major question remains in the identification of“unreasonable” trade practices, a determination left largely to judg-ment by the United States Government, with such judgment seen assubjective in the eyes of targeted countries141.

The GATT’s substantive law does not proscribe “unfair tradepractice”, except in the very limited areas of subsidies and anti-dumping. There is no provision in GATT that refers to fairness andmarket access, although the Uruguay Round negotiations haveresulted in agreements regarding market access for certain goods andcertain areas of trade in services based upon explicit concrete com-mitments made by member States. In other words, a rule on unfairtrade practice as such is absent, at least in general terms, in the exist-ing international legal framework.

When Section 301 is invoked as a discretionary action on thebasis of an “unreasonable” trade practice, the targeted States often


142. Fusae Nara, “A Shift toward Protectionism under Section 301 of the1974 Trade Act : The Problem of Unilateral Trade Retaliation under Interna-tional Law”, Hofstra Law Review, Vol. 19, 1990, pp. 229 f.

143. Professor Hudec developed a theory of “justified disobedience” withregard to Section 301, or to unilateral self-help in general. His theory seems tobe based on the premise that the unilateral retaliation for “unfair trade practice”is illegal under international law, but that its wrongfulness may be precluded andbecome justified under such proscribed conditions as : (1) the objective of thedisobedient act must be to secure recognition of a legal change that is consistentwith the general objectives of GATT ; (2) the disobedience must be preceded bya good faith effort to achieve the desired legal change by negotiation, and itmust be accompanied by an offer to continue to negotiate in good faith ; (3) theextent of the disobedience must be limited to that which is necessary to achievea negotiated legal reform of the kind required ; and (4) the Government mustaccept the power of the legal process to judge their disobedient behaviour, andmust accept the consequences imposed by law for it, etc. (Robert E. Hudec,“Self-Help in International Trade Dispute”, The Proceedings of the 84th AnnualMeeting of the American Society of International Law, 1990, pp. 33-38.) Itseems to me, however, that Professor Hudec’s theory on unilateral measures per-ceived as “disobedient but justified” acts is self-defeating : while his concernsare quite understandable (he states, for instance, “The illegal measures . . . hadbeen significant enough to send a message, . . . [When] the danger to GATT isserious enough, we are willing to break GATT law in order to get our messageacross” (ibid., p. 35)), one can never claim that breaking the law is the way toimprove it. His position, stressing the importance of legal change and good faith,should be better embraced by the concept of opposability.

protest the measures as violation of GATT rules, more specifically asan infringement of its rights to a MFN and national treatment underArticles I and III142. To consider the retaliatory measures alone maynot be appropriate, because the very causes which have led to theunilateral resort to such retaliation cannot be divorced therefrom.Normally it is considered that unilateral measures cannot be justifieduntil GATT dispute settlement procedures are exhausted. However, itmay be meaningless for some countries to submit the case to theGATT panel procedure when the panel’s finding, based on the exist-ing GATT law, is expected to be effectively in favour of the targetedStates. This is the situation surrounding Section 301 as one may seeit, and a substantial change in this situation may not be expectedeven under the World Trade Organization (WTO) dispute settlementsystem, although it is a great improvement over the former GATTprocedure. Therefore, it may not be appropriate to consider uni-lateral measures taken under Section 301 in terms of “a breach”of GATT law or “disobedience” thereto, the wrongfulness of whichmay be “justified” or “precluded”143. Those measures can better betermed either opposable or inopposable measures.

Section 301 is, of course, designed to deal with trade matters,and does not cover environmental issues. However, the underlying

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144. See “Gephardt Plans Bill to Allow Sanctions for Failure to EnforceEnvironmental Laws : House Majority Leader Announces Plans to Introduce a‘Green 301’ ”, Daily Environmental Reports (BNA), 25 March 1994 ; Richard A.Johnson, “Developments in Trade and Environment Policy : A U.S. Perspective”(Fair Trade Centre Briefing of 1 March 1994, Tokyo), p. 4 (on file with theauthor).

145. For instance, the United States National Economic Council was report-edly considering in January 1994 the development of a new policy to govern theuse of trade measures to enforce environmental objectives. The policy would setfour minimum conditions of which one would need to be met before the UnitedStates Government would consider imposing unilateral trade “sanctions” underUnited States laws at the President’s discretion. The first condition is that trademeasures would be required by an international environmental agreement toenforce its goals. The second test is likely to be that the trade measures protectan endangered or threatened species. Under the third test, the environmentalproblem in question must at least partially affect the United States environment.The fourth test would be that the offending policy is considered to undermine aninternational conservation standard. (Michael Bergsman, “NEC Proposes Guide-lines for Trade Measures to Protect Environment”, Inside U.S. Trade, Vol. 12,No. 3, 21 January 1994, pp. 1, 13-14.)

motive of the Section is quite similar to unilateralism in the fieldof the environment. In fact, United States Congressman RichardGephardt once proposed a “Green Section 301”. His idea was toapply environmental standards and enforcement through UnitedStates unilateral actions if they affect the environment of the UnitedStates, that of the global commons, or globally protected species144.Though his plans have since lost their momentum, similar proposalsmay arise again145. Undoubtedly the question is quite pertinent toour discussion here. International environmental law is one areawhere a significant part of applicable rules are at the formative stage,and therefore, as in the case of unfair trade practices, where the con-cept of opposability has an important role to play.

3. Conceptual Framework of Opposability

In today’s international community, so-called “legal disputes” dis-tinct from the political disputes can be categorized into the followingthree groups : (1) disputes concerning legality, which are the core ofinternational disputes ; (2) disputes concerning opposability, whichare centred on unilateral measures taken by States or by internationalbodies ; and (3) disputes concerning compatibility with the objec-tives of an international régime, which I consider to be an increas-ingly important category of disputes in view of the recent growth ofa number of international régimes. I will discuss this last category inChapter V.


146. A word on standing with regard to the claim based on opposability maybe necessary. If a case is submitted by a compromis, no controversy on standingis expected to arise, even when the new, emerging rules of international law maybe regarded as applicable to the case (note for example the compromis by whichLibya and Tunisia brought the case on the delimitation of their continental shelfin which the parties requested of the International Court of Justice that a judg-ment be given, in part, according to “the new accepted trends in the Third Con-ference on the Law of the Sea” (ICJ Reports 1982, p. 23). If a case is submittedunder the optional clause, the plaintiff State may bring the claim based, interalia, on “the breach of international obligation” (Art. 36, para. 2 (c), of the Stat-ute) ; the plaintiff State must indicate in its application the subject matter of thedispute (Art. 40, para. 1, of the Statute), and state the facts and reasons whichare the basis of its application (Art. 38, paras. 1 and 2, of the Rules of Court). Itis the defendant State that normally asserts that the relevant law is lacking, andtherefore that the issue should be dealt with from the viewpoint of opposabilityrather than legality, on which the Court will make a final judgment. See IanBrownlie, System of the Law of Nations : State Responsibility, Part I, 1983,Chapter V on the “causes of action”, pp. 53 f.

147. ICJ Reports 1951, p. 131. The Court pointed out the unsettled state ofinternational law relating to the topic, observing that

“although the ten-mile rule has been adopted by certain States both in theirnational law and in their treaties and conventions, and although certain arbi-tral decisions have applied it as between these States, other States haveadopted a different limit” (ibid.).

(1) Causes of action

First, if we compare disputes concerning legality with those con-cerning opposability from the viewpoint of the causes of action orobjective of a claim, we see a contrast. In disputes regarding legal-ity, a court is asked to determine whether the action of the defendantState is violative of a rule or rules of international law. Normally theplaintiff State asks the court to find the other party to have beenwrongful, and therefore invokes State responsibility. The final goalof the plaintiff is to acquire appropriate remedies for the wrongsdone by the defendant State.

In disputes concerning opposability, by contrast, the court seeksa determination regarding the external effect, normally the effectvis-à-vis the plaintiff State, of the measures taken by the defendantState146. That’s it : no more, no less. For instance, the InternationalCourt of Justice in the Fisheries case found that the ten-mile rule forthe mouth of a bay “has not acquired [the] authority of a general ruleof international law”, and that “[i]n any event, the ten-mile rulewould appear to be inapplicable [“inopposable” in the French text ofthe judgment] as against Norway inasmuch as she has alwaysopposed any attempt to apply it to the Norwegian coast”147. TheCourt also referred to the straight baseline drawn up by Norway

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148. The Court stated that

“The notoriety of the States, the general toleration of the internationalcommunity, Great Britain’s position in the North Sea, her own interest inthe question, and her prolonged abstention would in any case warrantNorway’s enforcement of her system against the United Kingdom.” (ICJReports 1951, p. 139.)

149. ICJ Reports 1962, pp. 10-11, 36. See Ian Brownlie, op. cit., supra foot-note 146, pp. 62-63 ; Soji Yamamoto, op. cit. (Kokusaiho), supra footnote 139,p. 41.

150. While the Court felt bound to observe that “an operation undertaken inthose circumstances, for whatever motive, is of a kind calculated to underminerespect for the judicial process in international relations” (ICJ Reports 1980,p. 43), the Court at the same time pointed out that “neither the question of legal-ity of the operation of 24 April 1980, under the Charter of the United Nationsand under general international law, nor any possible question on responsibility,flowing from it, is before the Court” (p. 43).

under its decrees of 1869 and 1889 for its territorial waters which, inits opinion, would be opposable to the United Kingdom148.

It may also be noted that normally the determination on oppos-ability does not address the issue of State responsibility. In theTemple of Preah Vihear, while the Court pointed out the fact thatsome of the temple’s objects had been removed by the Thai authorities,the question on restitution had not been raised on which a judgmentby the Court would be required149. While the Court did not employthe term opposability in its judgment, it held that the question regard-ing the ownership of the objects would be considered in light ofthe legal effect of the fact that the area surrounding the temple wasunder the sovereignty of Cambodia and, therefore, that those objectsbelonged to Cambodia, and left the question of restitution to besolved by negotiation between the parties. The same is true with theCourt’s reference, in the case concerning the United States Diplo-matic and Consular Staff in Tehran, to the failed rescue operationby the United States which, as the Court found, did not raise anyquestion of State responsibility150.

(2) Normative situation of the applicable law

Secondly, the most striking difference between legality andopposability relates to the normative situation of the applicable law.A dispute concerning legality addresses the situation where theapplicable law is clearly established, whereas an opposability dis-pute refers to a situation in which the relevant law is lacking, emer-ging or undergoing change. In other words, opposability addresses the


151. Kisaburo Yokota, Umi no Kokusaiho (International Law of the Sea),Vol. I, Yuhikaku, 1959, pp. 99-114, 123-134.

152. ICJ Reports 1974, p. 29.153. The Court noted that it was aware of

“present endeavours, pursued under the auspices of the United Nations, toachieve in a third Conference on the Law of the Sea the further codificationon progressive development of this branch of law, as it is of various pro-posals and preparatory documents produced in this framework which mustbe regarded as manifestations of the views and opinions of individual Statesand as vehicles of their aspirations, rather than as expressing principles ofexisting law” (ICJ Reports 1974, p. 23).

The Court, however, stressed that “the Court, as a court of law, cannot renderjudgment sub specie legis ferendae” (ibid., pp. 23-24).

“grey” areas of law. It may be recalled that the rule on baseline forbays and territorial waters was already a controversial topic whenthe Fisheries case was before the Court, as revealed by the ensuingdebates at the early sessions of the International Law Commission,the efforts of which culminated in the 1958 Geneva Convention onthe Territorial Sea and the Contiguous Zone151.

Indeed, the law of the sea is one area where drastic change hasoccurred during the latter half of this century. The Fisheries Juris-diction case of 1974 is most symbolic in this sense. While Icelandhad agreed with the United Kingdom regarding the 12-mile fisherieszone in 1961, the Court found that it was

“bound to conclude that the Icelandic Regulations of 14 July1972 establishing a zone of exclusive fisheries jurisdictionextending to 50 nautical miles . . . are not opposable to theUnited Kingdom”152.

In other words, the Court reached no conclusion regarding theUnited Kingdom position that the extension was illegal. Rather, theCourt held only that the measures in question were not opposable.Such a judgment was inevitable in view of the fact that, when thecase was pending before the Court, some countries were alreadybeginning to assert the 200-mile exclusive economic zone153.

There was quite a similar dispute in the spring of 1995 betweenSpain and Canada regarding certain fish stocks off Newfoundland.On 28 March 1995, Spain instituted proceedings against Canadabefore the International Court of Justice. In its Application, Spaincontends, inter alia, that Canada’s Coastal Fisheries Protection Act,as amended in 1994,

“in so far as it claims to exercise jurisdiction over ships flying

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154. Request by Spain, paragraph (a), Report of the International Court ofJustice (A/50/4), 1995, p. 30. Whether or not Canada’s unilateral measures takenoutside 200-mile zone would be considered as “opposable” to Spain depends onthe evaluation of Canada’s domestic efforts for conservation and management ofthose particular fish stocks as well as her international efforts in the contexts ofthe United Nations Conference on Straddling Fish Stocks and Highly MigratoryFish Stocks, etc. Spain’s attitude also comes under scrutiny from the same per-spectives.

155. Agreement for the Implementation of the Provisions of the UnitedNations Convention on the Law of the Sea of 10 December 1982 Relating to theConservation and Management of Straddling Fish Stocks and Highly MigratoryFish Stocks, adopted 4 August 1995, 34 ILM (1995), 1542.

156. Starke, op. cit., supra footnote 138, p. 3.

a foreign flag on the high seas outside the exclusive economiczone of Canada, is not opposable to the Kingdom of Spain”(emphasis added)154.

The issue concerns the unsettled status of the straddling and highlymigratory fish stocks in international law, and the evaluation ofinternational management efforts in various United Nations fora,which culminated in the adoption of a multilateral convention laterin 1995155.

(3) Normative effect of the measures taken

Thirdly, the difference between disputes concerning legality andthose concerning opposability is also clear in terms of the scope ofthe normative effect of the measures in question. When the Courtrenders a decision for the former group of disputes, its finding isdecisive, and its effect virtually erga omnes, in spite of the limitationstipulated in Article 59 of the ICJ Statute. By contrast, the effect ofa decision on opposability is relative in the sense that it is limited tothe particular relationships of States. Recall that in both the Fisher-ies and the Fisheries Jurisdiction cases, the Court was addressingthe effect of the measures in question, either by Norway or Iceland,vis-à-vis only the United Kingdom. In other words, the legal prin-ciple applies only to the parties and only with respect to the particularfactual situation that those parties have brought to the tribunal forresolution. Professor Starke correctly pointed out that “by using theconcept of opposability, the question is treated as confined to thearea of dispute between the parties” (emphasis added)156. Opposabil-ity is judged from the viewpoint of the particularized bilateral rela-tions between the contesting States leading up to the dispute before


157. The Canadian Coastal Fisheries Protection Act and its implementingregulations expressly permits the use of force against foreign fishing boats in thezone of the high seas covered by those regulations. Spain contends that theboarding on the high seas on 9 March 1995 of the ship Estai flying the flag ofSpain and the measures of coercion and the exercise of jurisdiction over thatship and over its captain constitute a concrete violation of the principles andnorms of international law. Request by Spain, paragraph (c), op. cit., supra foot-note 154. As mentioned in footnote 146, supra, it is normally the defendantState which resorts to the concept of opposability. The use of this concept by aplaintiff State, as it presupposes or implies the unsettled state of law, wouldweaken its position.

the Court, in which the relevant conduct of each party is closelyreviewed. The principle of good faith plays an important role in thiscontext, as I will explain later.

(4) The components of opposability

Having defined the concept of opposability, we move to the questionof by what requirements can certain unilateral measures be regardedas opposable or inopposable. The component elements of opposabil-ity are, in my view, effectiveness and legitimacy. The measures mustbe effective to be opposable. If they are not, the measures are in-opposable. In the course of the “Cod War” which preceded the Fish-eries Jurisdiction case, one may recall that Britain had sent a navalfleet to the disputed area to protect its fishing boats from inter-ference by Iceland’s coast-guard patrol boats, which were cutting thenets of the British fishing vessels. There was a similar aspect in thedispute between Spain and Canada which was just mentionedabove157. To successfully assert the opposability for the measures inquestion, or to block the measures so that they become inopposable,a State must exert certain power. While this power need not be of amilitary character, and in fact it is generally desirable that it not bein the form of military power, some exercise of power is nonethelessnecessary, whether economic or diplomatic. The unilateral measuresmust be self-sustaining, since they are, by definition, undertaken inthe grey area of normativity and are therefore devoid of any protec-tion of law.

(5) Equity

However, opposability is not a concept which justifies power poli-tics or gun-boat diplomacy, and therefore the unilateral measures inquestion must be supported by legitimacy. The measures must con-

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158. ICJ Reports 1986, pp. 567-574. The Court describes the modality ofequity as follows : (1) equity contra legem (contrary to the law), (2) equity infralegem (within the law), and (3) equity praeter legem (external to the law).

159. Soji Yamamoto, op. cit., supra footnote 139 (Unilateral Measures),pp. 47-49.

160. The principle of good faith might have been merely a moral principleuntil a few decades ago, but today the principle has become substantially insti-tutionalized through judicial decisions of the International Court of Justice. Thefunction of this principle is considered at least on three levels : creation of therights and obligations of States, interpretation of international rules, and imple-mentation thereof by States. The last category of good faith, which includes“good faith negotiations”, is particularly important in assessing opposability.Hugh Thirlway, “The Law and Procedure of the International Court of Justice1960-1989”, Part One, Chap. 1, The British Year Book of International Law,1989, pp. 7-29 ; J. F. O’Conner, Good Faith in International Law, Dartmouth,1991, pp. 81-106 ; Gillian White, “The Principle of Good Faith”, in Lowe andWarbrick, eds., The United Nations and the Principle of International Law,1994, Routledge, pp. 230-255.

form to a sense of equity and to the general interests of the interna-tional community rather than to the special interests of a particularState or group of States. Indeed, misuse and abuse of the opposabil-ity concept should be carefully avoided. The legitimizing process isthus crucial in asserting opposability for the measures being under-taken, and in this process the concept of “equity” plays an importantrole. The Chamber of the International Court of Justice in the Fron-tier Dispute case clarified the meaning and function of equity158 ;among the modalities of equity, “equity praeter legem” (external tothe law) is at the very core of opposability. Professor Soji Yamamotohas presented an illuminating case for equity praeter legem in dis-cussing the law-making function of a State’s unilateral actions,where such actions correct, or fill gaps in, the existing rules of inter-national law159.

(6) Good faith

Whereas effectiveness and legitimacy may be the objective ele-ments of opposability, the principle of good faith160 in the conduct ofthe parties is very important as the subjective standard in evaluatingwhether measures in question can be considered opposable, because,as indicated above, the concept under consideration is relevant to theparticular relationship between the countries concerned. The Stateresorting to unilateral measures must show that, having exhausted allavailable measures in good faith, it simply had no other choice. Simi-larly, the targeted State’s conduct also comes under scrutiny. Forinstance, in the context of the Tuna/Dolphin disputes, the conduct of


161. It is questionable, however, whether the so-called rule of “persistentobjection” is recognized as established in international law. Oscar Schachter,op. cit., supra footnote 28, pp. 12-14 ; Jonathan I. Charney, “The PersistentObjector Rule and the Development of Customary International Law”, BritishYear Book of International Law, Vol. 56, 1985, p. 11 f. ; Ted Stein, “TheApproach of the Different Drummer : The Principle of the Persistent Objector inInternational Law”, Harvard International Law Journal, Vol. 28, 1985, p. 459 ;Jun’ichi Eto, “Kanshu Kokusaiho no Riron to Ikkanshita Hantaikoku” (TheTheory of Customary International Law and the Persistent Objector Rule),Kokusaiho Gaiko Zasshi (Journal of International Law and Diplomacy),Vol. 88, 1989, pp. 38-64.

162. While traditionally international law has permitted both reprisals andretorsions under certain conditions, their scope and the distinction between themhave been a subject of controversy. See American Law Institute, RestatementThird, op. cit., supra footnote 118, Vol. 2, Sec. 905, on unilateral remedies,pp. 380 f. Reporter’s note, para. 8, p. 390.

163. Elizabeth Zoller, Peacetime Unilateral Remedies : An Analysis ofCountermeasures, Transnational Publishers, 1984, pp. 3-44.

Mexico may be questioned : did Mexico act in good faith in co-oper-ating to protect the dolphins in the framework of the Inter-AmericanTropical Tuna Commission (IATTC), or did it have a well-foundedreason in refusing to co-operate, characterizing itself as “a persistentobjector”161, the status by which it may well be precluded by theapplication of the rule, if any, on the protection of dolphins ?

4. Opposability and the Dispute Settlement Process

(1) Countermeasures : reprisals and retorsions

The question of permissibility of unilateral retaliatory measuressuch as those referred to above relates to the controversial problemsof countermeasures and the relevant dispute settlement procedures.Conceptually, a retaliatory measure should first be differentiatedbetween a reprisal and a retorsion. A reprisal is an institution bywhich a countermeasure is exercised against a prior breach of law,whereas a retorsion is a retaliation against an unfriendly act whichhas not amounted to violation of international law162. Because thenotion of opposability refers to the grey area between law and non-law, a retaliation under consideration here is more a retorsion than areprisal in the traditional sense163.

(2) Dispute settlement and countermeasures

The question on permissibility of countermeasures is closelyrelated to the function of the dispute settlement procedures. Recall

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164. The Court stated that “the rules of diplomatic law, in short, constitute aself-contained régime . . . ” (ICJ Reports 1980, p. 40). Ryo Yamamoto, “Koku-saiho-jo no Jiko-Kanketsuteki Seido ni Kansuru Ichi-Kosatsu” (An Observationon the Self-Contained Regime in International Law), Kokusaiho Gaiko Zasshi(Journal of International Law and Diplomacy), Vol. 93, No. 2, 1994, pp. 32-67.

165. Oscar Schachter, “Dispute Settlement and Countermeasures in the Inter-national Law Commission”, American Journal of International Law, Vol. 88,1984, pp. 471-477 ; Yoshiro Matsui, “Countermeasures in the International LegalOrder”, The Japanese Annual of International Law, No. 37, 1994, pp. 1-37.

166. W. Riphagen, “Reports on the Content, Forms and Degrees of Interna-tional Responsibility”, Yearbook of the International Law Commission, Prelimi-nary Report, Vol. 2, Part 1, 1980, p. 111 ; Third Report, 1982, Vol. 2, Part 1,pp. 25, 30, 47 ; Fourth Report, Vol. 2, Part 1, 1983, pp. 18-33 ; Fifth Report,Vol. 2, Part I, 1984, p. 4.

167. G. Arangio-Ruiz, “Fourth Report on State Responsibility”,A/CN.4/444/Add.2, p. 13 (para. 113).

that the International Court of Justice in the case concerning theUnited States Diplomatic and Consular Staff in Tehran referredto the concept of “self-contained régime”164, meaning that resort tocountermeasures by the injured State was excluded except for thosemeasures specifically prescribed. If a given dispute settlement pro-cedure is regarded as self-contained, it is a logical conclusion that nounilateral countermeasures be permissible. The issue of permissibil-ity of countermeasures has become very controversial in the contextof elaborating draft articles on State Responsibility by the Interna-tional Law Commission in recent years165. The former Special Rap-porteur, Professor Willem Riphagen, appeared to take the positionthat a State should retain its prerogative to resort to unilateral counter-measures within permissible limits and restrictions, that is, whenremedies are not secured despite the exhaustion of the dispute settle-ment procedures prescribed in the relevant régime166. Comparedwith his predecessor, the present Special Rapporteur, Professor Gae-tano Arangio-Ruiz, takes the rather restrictive view that the injuredState should be required to exhaust all the available dispute settle-ment procedures before taking countermeasures, which then wouldbe permitted only in certain exceptional circumstances167. While aconsensus may be reached on such limits and conditions of counter-measures as non-involvement of the use or threat of force and normsof international law, the crucial point in assessing the permissibilityof countermeasures should be a balancing between the effectiveremedy of the injured State’s substantive rights and the proceduralprotection of the international legal system from the possible abuse ofcountermeasures often, but not always, by powerful States. This is asearch for balance between substantive justice and procedural justice.


168. Article XVI, paragraph 4, of the Agreement Establishing the WorldTrade Organization provides : “Each Member shall ensure the conformity of itslaws, regulations and administrative procedures with its obligations as providedin the annexed Agreements.” Furthermore, the Understanding on Rules and Pro-cedures Governing the Settlement of Disputes provides in Article 23 (Strength-ening of the Multilateral System) :

“23.1. When Members seek the redress of a violation of obligations orother nullification or impairment of benefits under the covered agreementsor an impediment to the attainment of any objective of the covered agree-ment, they shall have recourse to, and abide by, the rules and procedures ofthis Understanding.

23.2. In such cases, Members shall :(a) not make a determination to the effect that a violation has occurred, that

benefits have been nullified or impaired or that the attainment of anyobjective of the covered agreements has been impeded, except throughrecourse to dispute settlement in accordance with the rules and pro-cedures of this Understanding, and shall make any such determinationconsistent with the findings contained in the panel or Appellate Bodyreport adopted by the DSB [Dispute Settlement Body] or an arbitrationaward rendered under this Understanding.”

Thus it is clear under this pledge that member States are obliged to refrain fromtaking any unilateral action against alleged impediments to trade and to seekrecourst to WTO’s new dispute settlement procedure.

169. In accepting the results of the Uruguay Round, the United States enacteda domestic law, Uruguay Round Agreements Act, Public Law No. 103-465, 108Stat. 4809, 1994, according to which United States law takes precedence over

(3) The WTO dispute settlement

Resorting to a unilateral retaliatory measure under Section 301,particularly regarding an “unreasonable” unfair trade practice,should be deemed to seriously undermine the multilateral frameworkof WTO dispute settlement, in view of the fact that the WTO pro-cedure has been greatly improved, strengthened and judicializedcompared to its predecessor168. However, the question of permissibilityrests on the juridical judgment on whether the WTO dispute settle-ment mechanism can be regarded as a self-contained régime, and, ofcourse, a factual assessment as to its effectiveness. The lack of rulespertaining to unfair trade practices and to environmental protectionmay be considered a reason for not submitting disputes to the WTO,because, as I mentioned above, there is no point on relying on theWTO when there are no remedies expected therefrom based uponthe existing GATT law. The mandate of a GATT dispute settlementpanel is to interpret and apply the existing law and to exert judicialrestraint when it faces new areas of law. Realistically speaking, then,it does not seem possible to rule out completely cases where unilat-eral retaliation may be imposed even under the new WTO system169.

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WTO/GATT agreements. Since Section 301 permits the United States to act uni-laterally to suspend trade concessions either before DSB authorization or even inthe face of a panel or Appellate Body decision against the United States, suchaction would be violative of United States international obligation. ProfessorSchoenbaum considers nonetheless that there is a limited area where unilateralactions may be permitted under international law, and proposes that Section 301should be used, inter alia, “in accordance with market contestability theory toimprove access to foreign markets and to remove distortion caused by eitherforeign government or private restrictive business behavior”. (Schoenbaum,op. cit., supra footnote 141, pp. 28 f.).

170. Lori Fisher Damrosch, “Retaliation or Arbitration — Or Both ? The1978 United States-France Aviation Dispute”, American Journal of Interna-tional Law, Vol. 74, 1980, pp. 785-807. It is said that “retaliation can serve auseful (though not always perfectly successful) function in the dynamic processof attaining arbitral resolution of a dispute” (p. 802). According to ProfessorDamrosch,

“. . . under some circumstances a responsive breach might be justified evenabsent a prior breach, if the responding State party believes in good faiththat a breach has occurred . . . since the interplay and even escalation ofresponses before a dispute reaches a tribunal can serve important purposes,that dynamic process should not be stifled by a blanket rule of abstentionfrom self-help measures pending arbitration” (p. 807).

Thus, “as a general matter, . . . the existence of a dispute settlement clause in atreaty should not require abstention from retaliation during the period before thevictim party can obtain satisfaction from a tribunal” (p. 807).

In more general terms, whether and to what extent a unilateralremedial measure is permitted depends on the effectiveness and self-contained character of the dispute settlement mechanism. Naturally,unilateral remedies are not desirable ; it is however a fact of life ininternational law that its procedural law is not always perfect, inwhich case an aggrieved State must be permitted to seek remediesunilaterally.

It may be argued that in some extreme cases where the given dis-pute settlement procedures lack the necessary guarantee of remedies,a unilateral remedial measure may even help enhance the effective-ness of the procedure in question170.

(4) Stress on negotiation and consultation

I should point out that when a court finds a unilateral measure tobe either opposable or inopposable it normally stresses the impor-tance of solving the issue through negotiation and consultation.Thus, in the Fisheries Jurisdiction case, the International Courtstated :

“In view of the Court’s finding that the Icelandic Regula-


171. ICJ Reports 1974, pp. 30-31.

tions are not opposable to the United Kingdom for reasonswhich have been stated, it follows that the Government of Ice-land is not in law entitled to exclude unilaterally United King-dom fishing vessels from sea areas to seaward to the limits . . .or to impose restrictions on their activities in such areas. Butthe matter does not end there ; as the Court has indicated, Ice-land is, in view of its special situation, entitled to preferentialrights in respect of the fish stocks of the waters adjacent to itscoasts. Due recognition must be given to the rights of both Par-ties . . . It follows that even if the Court holds that Iceland’sextension of its fishery limits is not opposable to the Applicant[United Kingdom], this does not mean that the Applicant isunder no obligation to Iceland with respect to fishing in the dis-puted waters in the 12-mile to 50-mile zone. On the contrary,both States have an obligation to take full account of eachother’s and of any fishery conservation measures the necessityof which is shown to exist in those waters . . . The most appro-priate method for the solution of the dispute is clearly that ofnegotiation.”171

Judgments on opposability are often linked to the obligation ofthe parties to negotiate and consult on the basis of the guidelinesprescribed by the Court for an equitable solution of the dispute. Byso doing, the Court certainly influences the law-making processalthough the Court would naturally try to avoid even the appearanceof having performed a law-creating function.

5. Opposability and the International Law-MakingProcess

The claim for the continental shelf began with the unilateralmeasures of United States President Harry S. Truman’s Proclamationin 1945. The same is true with 200-mile exclusive economic zones :some maritime nations such as Japan strongly objected at first,claiming that these unilateral measures violate the freedom of thehigh seas. Such a unilateral claim was “illegal” at its beginning, butcame to be “opposable” among some States. Then, by the early1980s, claims to economic zones had crystallized or metamor-

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172. Soji Yamamoto, op. cit. (Unilateral Measures), supra footnote 139,pp. 74-79 ; unilateral action by some (powerful) States has in the past led tomultilateral agreement where none had seemed possible. See, e.g., Richard B.Bilder, “The Role of Unilateral State Action in Preventing International Envi-ronmental Injury”, Vanderbilt Journal of Transnational Law, Vol. 14, 1991,p. 51, 82.

173. Masahiro Miyoshi, Consideration of Equity in the Settlement of Territo-rial and Boundary Dispute, Martinus Nijhoff, 1993, pp. 208-210.

phisized into an international legal institution as a result of negotia-tion which took place between Governments on bilateral bases and atthe multilateral forum of the United Nations Conference on the Lawof the Sea. It is this kind of law-making process to which our atten-tion should be given regarding “opposable” unilateral measures.

It may be admitted that some external-directed domestic measuresof a unilateral nature have growing significance in today’s inter-national law-making process by means of the spill-over effects ofdomestic laws. This is due to the nature of an international commu-nity that, unlike modern democratic States, lacks a legislature, andtherefore “peaceful change” or law-making normally takes a longtime. The dynamic of today’s international relations reveals gaps inpositive international law, and sticking with the old rules would notmeet the actual requirements and interests of the international com-munity. Under those circumstances, certain unilateral measures takeon characteristics of opposability in order to fill gaps in the law inlight of a perceived urgent need to protect the general interests of theinternational community172. Equity praeter legem plays a significantrole in bridging the gap between existing law and requirementsexternal to existing law173.

Needless to say, such a law-making process is not ideal nor desir-able, but given the present situation of the international community,we cannot altogether deny the significance of this process. TheTuna-I panel stated toward the end of its report that the question oftrade measures should be answered “by amending or supplementingthe provisions of the General Agreement” rather than “by interpret-ing Article XX” (para. 6.3). As we have seen, the unilateral meas-ures by the United States in the Tuna/Dolphin dispute resulted inconcrete legislative efforts at the GATT Working Group, which hasbeen succeeded by the WTO’s Committee on Trade and Environ-ment. Rest assured, I do not wish to praise unilateralism, but Ibelieve that we must soberly take note of and duly assess the truecourse of development in the international community.


174. It seems particularly important in the study of, for instance, “the forma-tion of customary international law”, the topic currently under consideration byone of the ILA Committees, to focus one’s attention on this aspect of the law-making process. See, Remarks by Shinya Murase, Report of the InternationalLaw Association, 65th Conference, Cairo, 1992, pp. 385-386.

The concept of opposability has played and certainly will con-tinue to play an important role. Its implications in internationallaw must be studied further to attain a better understanding of thechanging relations of States today174.

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