Preface xiii
Abbreviations xvii
1 Introduction 1
The problem of defining international law 1
General and regional international law 2
Characteristics of international law 3
International law as ‘law’ 5
The scope of international law 7
2 History and theory 9
The formation of European international law 10
Features of European international law in state practice after 1648 11
Colonization and the relation to non-European powers 12
The Western hemisphere 14
Theory: naturalists and positivists 15
The theory of sovereignty 17
Legal results of the period up to the First World War 18
The unlimited right to use force 19
The peaceful settlement of disputes 20
Prohibition of the slave trade 21
Humanization of the law of warfare 21
First forms of international organizations 22
The Hague Peace Conferences of 1899 and 1907 22
The watershed after the First World War 23
The League of Nations 23
The attempt to restrict the use of force 24
Other functions of the League 24
The Permanent Court of Justice 24
Failure of the League system 25
Development after the Second World War 26
The prohibition of the use of force and collective security in the United
Nations Charter 26
Decolonization and change in the composition of the international
community 28
Attitudes of Third World states towards international law 28
Universality and the challenge to the unity of international law 30
New developments in theory 32
3 Sources of international law 35
Treaties 36
Law-making treaties and ‘contract treaties’ 37
Parties to international treaties and ‘internationalized contracts’ 38
Custom 39
Where to look for evidence of customary law 39
The problem of repetition 41
What states say and what states do 43
The psychological element in the formation of customary law (opinio iuris) 44
‘Instant’ customary law 45
Universality and the consensual theory of international law 46
General principles of law 48
Judicial decisions 51
Learned writers 51
Other possible sources of international law 52
Acts of international organizations 52
‘Soft’ law 54
Equity 55
The hierarchy of the sources 56
Ius cogens 57
Obligations erga omnes and ‘international crimes’ 58
Codification of international law 60
4 International law and municipal law 63
Dualist and monist theories 63
The attitude of international law to municipal law 64
The attitude of national legal systems to international law 65
Treaties 65
Custom and general principles 68
Conclusions 71
Public international law and private international law 71
5 States and governments 75
States 75
Defined territory 75
Population 76
Effective control by a government 77
Capacity to enter into relations with other states 79
Self-determination and recognition as additional criteria 80
Federal states 81
Governments 81
Recognition of states and governments in international law 82
Recognition of states 82
Legal effects of recognition in international law 83
Legal effects in domestic law 86
Recognition of governments 86
De jure and de facto recognition 88
6 International organizations, individuals, companies and groups 91
International organizations 92
Non-governmental organizations (NGOs) 96
Individuals and companies 100
Insurgents and national liberation movements 104
Ethnic minorities and indigenous peoples 105
Minorities 105
Indigenous peoples 106
7 Jurisdiction 109
Forms of jurisdiction 109
Criminal jurisdiction of national courts 110
Territorial principle 110
Nationality principle 111
Protective principle 111
Universality principle 112
Universal jurisdiction of national courts over crimes against human rights 113
‘Ivan the Terrible’ —The trial of John Demjanuk 115
Conflicts of jurisdiction 116
Extradition 117
8 Immunity from jurisdiction 118
Sovereign (or state) immunity 118
The act of state doctrine 121
Diplomatic immunity 123
Immunity from the jurisdiction of courts 125
Other privileges and immunities 126
Consular immunity 127
Immunities of international organizations 127
Waiver of immunity 128
9 Treaties 130
Conclusion and entry into force of treaties 131
Adoption of the text of a treaty 131
Consent to be bound by a treaty 131
Entry into force 134
Reservations 135
Registration 136
Application of treaties 137
Territorial scope of treaties 137
Treaties and third states 137
Application of successive treaties relating to the same subject matter 137
Invalid treaties 137
Provisions of municipal law regarding competence to conclude treaties 138
Treaties entered into by persons not authorized to represent a state 138
Specific restrictions on authority to express the consent of a state 139
Coercion of a representative of a state 139
Coercion of a state by the threat or use of force 139
Other causes of invalidity 140
The consequences of invalidity 140
Termination of treaties 141
Termination in accordance with the provisions of a treaty 141
Termination by consent of the parties 141
Implied right of denunciation or withdrawal 142
Termination or suspension of a treaty as a consequence of its breach
(discharge through breach) 142
Supervening impossibility of performance 144
Fundamental change of circumstances (rebus sic stantibus) 144
Emergence of a new peremptory norm (ius cogens) 145
Outbreak of war 145
Consequences of termination or suspension 146
10 Acquisition of territory 147
Modes of acquisition of territory 147
Cession 148
Occupation 148
Prescription 150
Operations of nature 151
Adjudication 151
Conquest 151
Acquiescence, recognition and estoppel 154
Intertemporal law 155
Legal and political arguments 157
Minor rights over territory 158
Servitudes 158
11 Legal consequences of changes of sovereignty over territory
(state succession) 161
Treaties 162
Treaties dealing with rights over territory 162
Other types of treaties 163
The principle of ‘moving treaty boundaries’ 163
Decolonization and new states 164
Recent practice 165
Secession 165
Baltic states 165
Dismemberment 166
Soviet Union 166
Yugoslavia 167
Czechoslovakia 167
Unification 167
Germany 167
Yemen 168
International claims 169
Nationality 169
Public property 169
Private property 170
Contractual rights 170
12 The law of the sea 173
Internal waters 175
Territorial sea 176
The right of innocent passage 176
Rights of the coastal state over the territorial sea 177
The width of the territorial sea 178
The line from which the territorial sea is measured 180
The contiguous zone 182
Exclusive fishery zones and exclusive economic zones 183
The high seas 184
Interference with ships on the high seas 186
Jurisdiction of municipal courts over crimes committed on the high
seas 190
The continental shelf 191
The deep seabed 193
Maritime boundaries 195
13 Air space and outer space 198
Air space 198
Outer space 201
The ‘common heritage of mankind’ principle 207
14 Human rights 209
The concept of human rights 209
Human rights on the universal level 211
The United Nations Charter 211
The Universal Declaration of Human Rights 212
United Nations bodies active in the field of human rights 213
The 1966 Covenants 215
Other human rights instruments on the universal level 216
Human rights on the regional level 217
The European Convention for the Protection of Human Rights and
Fundamental Freedoms 217
Other regional instruments 219
Human rights as a matter of international concern 220
15 Economy 222
The Bretton Woods system and international economic organizations 223
The International Monetary Fund (IMF) 225
The World Bank 227
The GATT 228
The new World Trade Organization 231
The trade agreements on goods 231
The Agreement on Services (GATS) 232
The Agreement on Intellectual Property Rights (TRIPS) 232
Institutional aspects 233
Developing countries and the legal quest for a New International Economic
Order 233
Expropriation and standard of compensation 235
Disguised expropriation 238
Expropriation of contractual rights 238
The right to development 239
16 Environment 241
The scope and nature of international environmental law 242
Customary law and general principles 245
The United Nations Conference on Environment and Development 247
The Convention on Climate Change 248
The Biodiversity Convention 249
The Rio Declaration and Agenda 21 250
Conclusions 251
17 State responsibility 254
The work of the International Law Commission 254
State responsibility and the treatment of aliens 256
‘Imputability’ 257
The minimum international standard 260
Preliminary objections 262
Nationality of claims 263
Exhaustion of local remedies 267
Waiver 268
Unreasonable delay and improper behaviour by the injured
alien 269
Consequences of an internationally wrongful act 269
Countermeasures and dispute settlement 271
18 Peaceful settlement of disputes between states 273
Diplomatic methods of dispute settlement 275
Negotiations 275
Good offices and mediation 275
Fact-finding and inquiry 277
Conciliation 278
Legal methods of dispute settlement 281
Adjudication 281
The International Court of Justice 281
Composition 282
Jurisdiction in contentious cases 282
Procedure 287
Ad hoc chambers 288
Enforcement of judgments 288
Advisory opinions 289
Evaluation of the Court 290
Arbitration 293
ICSID 295
The Iran-United States Claims Tribunal 296
Settlement of disputes under the Law of the Sea Convention 298
Conclusions 300
19 International wars, civil wars and the right to self-determination:
ius ad bellum 306
Lawful and unlawful wars: developments before 1945 306
The prohibition of the use of force in the United Nations
Charter 309
Self-defence 311
Preventive self-defence 311
Self-defence and claims to territory 314
Self-defence against attacks on ships and aircraft 315
Armed protection of nationals abroad 315
Armed reprisals 316
Immediacy and proportionality 316
Collective self-defence 317
Civil wars 318
The legality of civil wars 318
Participation by other states: help for the insurgents 319
Participation by other states: help for the established authorities 322
The theory that help for the established authorities is legal 322
The theory that help for the established authorities is illegal 323
Collective self-defence against subversion 324
Conclusion 325
Self-determination and the use of force 326
Mandated territories, trust territories and non-self-governing
territories 327
Mandated territories 327
Trust territories 328
South West Africa (Namibia) 328
Non-self-governing territories 329
Double standards? 332
Consequences of violations of the right of self-determination 334
Creation of new states 334
Title to territory 334
Wars of national liberation 336
New developments 338
The effectiveness of the modern rules against the use of force 341
20 Means of waging war and criminal responsibility: ius in bello 342
Lawful and unlawful means of waging war 342
Nuclear weapons 346
The law of neutrality and economic uses of maritime warfare 350
Reprisals 351
Rules governing the conduct of civil wars 352
War crimes trials 353
The International Criminal Tribunal for the Former Yugoslavia 355
Jurisdiction of the Tribunal 356
The work of the Tribunal 358
The Rwanda Tribunal 360
Towards a permanent international criminal court? 360
Possible future developments 361
21 The Charter and the organs of the United Nations 364
The United Nations Charter and the problem of interpretation 364
Literal interpretation 365
Intention and travaux prйparatoires 366
Practice 366
Effectiveness and implied powers 367
The purposes of the United Nations 368
Domestic jurisdiction 368
Membership 369
The representation of China 371
The case of Yugoslavia 372
The organs of the United Nations 373
The Security Council 373
The General Assembly 377
The Secretariat 380
The Economic and Social Council and the specialized agencies 382
22 The United Nations and peace and security 385
Pacific settlement of disputes under the United Nations Charter (Chapter VI) 385
Collective security and enforcement action (Chapter VII) 387
Practice under Chapter VII during the Cold War 390
The United Nations force in Korea 391
The Uniting for Peace Resolution 392
Rhodesia and South Africa 393
Practice under Chapter VII after the end of the Cold War 395
The invasion of Kuwait by Iraq 396
The Kurdish crisis 399
Somalia 402
Rwanda 405
Haiti 407
Yugoslavia 409
UN peacekeeping 416
The ‘old’ peacekeeping during the Cold War 416
The first United Nations Emergency Force in the Middle East (UNEF) 417
The United Nations Force in the Congo (ONUC) 418
The Expenses case 420
The United Nations Force in Cyprus (UNFICYP) 420
New forces in the Middle East 422
New forms of peacekeeping after the Cold War 423
Conclusion 425
Table of cases 431
Table of treaties, declarations and other documents 435
Index 441