The Specially-Affecting States Doctrine

Abstract

The orthodox view of the Specially-Affected States Doctrine (SASD), grounded in the International Court of Justice's (ICJ) 1969 judgment in the North Sea Continental Shelf cases, is that practice leading to the emergence of a customary rule must include that of states “whose interests were specially affected.” The framing of this passage of the North Sea Continental Shelf judgment seems to imply both a positive and a negative importance for the practice of specially-affected states. Such practice is a requirement for the emergence of a new rule of customary international law. Acceptance by specially-affected states is, in other words, necessary but not sufficient for a rule of custom to emerge. Whether practice of specially-affected states can be sufficient to form a general custom is not resolved by this formulation, although it seems reasonable to infer that the ICJ had in mind that the combined involvement of specially-affected and other states was needed for the formation of such a rule of customary international law concerning basic principles of continental shelf delimitation. Conversely, the absence of rule-supporting practice by specially-affected states would have a negating effect on the emergence of a rule of customary international law, despite rule-affirming practice of states not specially affected. On this view, practice of only such states could not crystalize into a custom. One commentator has suggested that the negative construction does not mean that a single specially-affected state necessarily holds veto power over the formation of a new rule of customary international law, but asserted that “[i]f several ‘states whose interests are specially affected’ object to the formation of a custom, no custom can emerge.” Unsurprisingly, given this level of abstraction, such formulations do not themselves provide specificity as to how many (or which) specially-affected states would be sufficient to prevent the formation of a custom in a particular situation.

Mitigating effects of sea-level rise on maritime features through the international law-making process in the Law of the Sea

“…In this process, UN agencies, particularly the ILC, have an important role to play, both in drafting treaties and in facilitating the formation of consensus. In addition, adjudging states that experience sea-level rise where maritime features are particularly threatened, as specially affected states, may help enhance the significance of their practice in the identification of customary international law, although the actual meaning and effects of the doctrine are still subject to contested opinions (Heller, 2018;Yeini, 2018).…”

Book Review of Isaac B. Kardon, China's Law of the Sea: The New Rules of Maritime Order

“…Kardon emphasizes that the international order is built upon the rules of international law, and the examination of the dynamic maritime order relies on the study of state practices related to the law of the sea (pp. [12][13]. Consequently, the author narrows the focus to Chinese practices and examines the responses of states specially affected by them in subsequent chapters.…”

“…The Specially Affected States Doctrine (SASD) is a significant yet ambiguous topic in the evolution of international law. It takes efforts to identify states whose interests are specially affected by a proposed rule, as both Heller's and Yeini's work published in the American Journal of International Law reveals [13][14][15]. However, this book provides little evidence that Kardon recognized the complexity of the SASD and took it seriously.…”