On 20th September 1972 Dr. Wolfgang G. Friedmann, professor of international law and director of international legal research at Columbia University, was robbed and stabbed to death three blocks from the Columbia campus. This sad news rapidly spread all over the world, and caused a heavy shock to those who had got to know this outstanding lawyer from his publications, and above all to those who, like the present writer, had the privilege to become his friend through personal contacts with his charming and inspiring personality.

Lors de sa 12e session tenue à La Haye du 2 au 21 octobre 1972, la Conférence de la Haye de droit international privé a abordé le problème de plus en plus actuel, mais mal élucidé tant en droit interne qu'en droit international privé de la responsabilité du fait des produits (products liability).

During the preparatory stages of the Third Conference on the Law of the Sea, there has been a wide range of opinion registered on the issue of the extent and nature of maritime jurisdiction over fisheries. It is the purpose of this paper to provide a summary and to comment upon the positions expressed on this matter by the various delegations to the preparatory sessions of the Conference. It is hoped that this paper will serve as a timely and useful reference for those with an interest in the outcome of the fisheries issue at the Third United Nations Conference on the Law of the Sea.

Man entered the threshold of his last unexplored frontier in 1957 with the launching of Sputnik I into outer space. The transition from the scientific and technological wonder that Sputnik I created to the use of outer space for the benefit of man has been at an exceedingly fast pace. Yet the frontier has just begun to be revealed and the exploitation of the common resource of outer space is in its infancy. Developments in space technology in years to come will determine more accurately the fuller potential of this resource. The rapid increase in space activity with advances in space technology has resulted in a constantly changing legal order for accommodating social, political, military, and economic aspects of these activities.

The principle of arbitration took roots and flourished in Latin America because of three principal reasons. Firstly, it was a necessity that peace should be maintained among the newly emancipated Republics, if their independence was not to be rendered precarious. In this sense the desire of these Republics to settle their international problems by pacific methods was in itself a product of their historical situation. Secondly, the spirit of confraternity engendered by the similarity in language, culture and religion aided the reception of arbitration as a mode of settling their quarrels. Finally from the earliest beginnings the leaders of the revolution, especially Bolivar devised projects to ensure that arbitration became the foundation-stone of American International Law.

The revocation in 1966 of South Africa's Mandate for South West Africa must be seen as the final denunciation by the international community of the trust it had once placed in South Africa. Resolution 2145 (XXI) was the culmination of 20 years of unsuccessful efforts to remind that country of its international obligations, flowing from Article 22 of the Covenant and from the Mandate Agreement, which had as their primary object “the well-being and development” of the indigenous population under the guarantee of international supervision.

The concept of international river law as defined in its three branches i.e., 1) the determination of state boundaries in frontier waters 2) the physical interferences (Immissionen) in waters between states, 3) the trans-boundary navigation on international rivers appears to clearly define any international river law relationship only in the branch of state boundary determination. The application of international river law to physical interferences in the waters between states is of doubtful scope, while the question whether or not navigation on international rivers is to be construed as part of international river law seems to be not just a question of terminology but of dogmatics.

Originally the scope of the application of international river law was not based on the concept of interferences in waters as a physical unit. However, the growing needs arising from industrial development and the development of law on the basis of such industrial phenomena as hydroelectric power, water pollution, high rate water consumption, etc., has progressively focused this scope of application from the starting doctrine of “international river” (internationaler Fluss), borrowed from the international law of navigation but with the element of “navigability” removed, to the doctrine of “international river system” (internationales Flusssystem), then to the doctrine of “coriparian states system” (Flussanliegerstaatensystem) and, finally, to the doctrine of “international drainage or river basin” (internationales Flussbecken) which is widely recognized today. This development is particularly noteworthy since the scope of this body of law refers to any water interference whatsoever in the area of a drainage basin. The notion of international drainage basin, however, will fail if there are interferences in the waters outside this area. Already since World War II there have been instances of artificial production of precipitation which have caused disputes between member states of the USA. It would therefore seem that the natural circuit of water (natürlicher Wasserkreislauf) Sea-Air-Ground-Sea should be the appropriate scope for the application of international drainage basin law excepting, however, the High Sea which is governed by the international law of the High Sea. This conception would fill the lacuna between the scope of the international law of the High Sea and that of the international law of drainage basin, the latter becoming thereby an international law of natural water circuit. This international law of natural water circuit as a law concerning physical interferences is therefore part of the international law of (physical) interferences or international law of neighbourhood which has to be defined as the body of legal norms governing physical interferences between states, the cause of which has its origin in one state, the effect, however, by virtue of physical laws, manifesting itself in another state, acts of God excepted. As far as water interferences are concerned the notion of international river law — a term that may be used furthermore for convenience — should be understood in the sense of an international law of natural water circuit.

The pronouncement of the International Court of Justice on Namibia lends itself to commentaries of many kinds. Far-reaching conclusions, even too far-reaching for many people, can be drawn from it. The accuracy of these conclusions, however, will depend primarily on the definition of the context within which the Court made its pronouncement. It is my firm conviction that this context is determined by the characteristics of the Mandate “Agreement”, characteristics which are absolutely unique and which can, therefore, in my opinion, be used as a basis for an argument per analogiam only with the greatest caution.

Among the many general problems of international law in issue in the Namibia Case, the question of the legal consequences of illegality under public international law is certainly one of the more important ones. Strictly speaking it was the central issue; indeed, the question put to the Court by the Security Council was to determine “the legal consequences for States of the continued presence of South Africa in Namibia”, and it referred to Security Council Resolution 276 (1970), which declared that continued presence to be illegal. Now both in the Advisory Opinion itself and in the separate and dissenting opinions, taken together, rather more attention is paid to other questions of law. in particular the question of the legality or illegality of the continued presence itself, than to the question of the permissible, or even mandatory, reaction to such illegality. Of course there is – as we will see later – a link between the two sets of problems; but. in the first instance, they could be treated separately. There are indeed – again, in the first instance – good reasons for such separate treatment. From any legal point of view it could hardly be irrelevant that a given factual situation is the result of conduct contrary to legal norms, and it would seem a priori reasonable that the law should attach some legal consequence in respect of the person whose conduct is involved. Nevertheless, the law relating to sanctions (in the largest sense of the word) is derivative law and, as such, cannot be unrelated to the peculiarities of the norms, the negation of which is “illegal”. But, on the other hand, the sanction is situated in the present, it reacts to the past, and prepares the future. In view of all this, it is hardly surprising that in this field of law relating to sanctions, there is even more uncertainty than in the field of the more direct (substantive) law relating to the rights and duties of States under a “model” of a peaceful international society!

In classic international law – as was to be expected – there is a close relatioship between substantive law and law relating to sanctions.

The European Convention on State Immunity, worked out by a Committee of Experts set up by the Council of Europe, was opened for signature at Basle on 16 May, 1972, on the occasion of the Seventh Conference of European Ministers of Justice. It received thus far 7 signatures, those of Austria, Belgium, the Federal Republic of Germany, Luxemburg, The Netherlands, Switzerland and The United Kingdom.

1. “Space for World Development”, which was chosen by the International Astronautical Federation as the main theme of its Vienna Congress in October 1972, is particularly relevant when referring to space communications. Indeed, a “global strategy of development”, during this second development decade, will largely be based on technological advances in the field of satellite telecommunications. Moreover, increased cooperation among States in this domain will certainly be of great benefit for mutual understanding among people and for world peace. Unfortunately, what one witnesses today is an earthbound picture of national rivalries projected into outer space. To be sure, regional and interregional agreements or even international instruments intended to have a world-wide basis retouch this picture. However, a unified system of communications comprising both the Eastern and Western countries does not so far exist. Such a system, under the authority of the United Nations or one of its specialized agencies, such as the International Telecommunications Union, which a few years ago seemed unlikely unless “some form of world government is acceptable to the great powers”, appears today somewhat more feasible. General principles for space communications have been and are presently elaborated which, if finally adopted, will, to some extent, contribute to a rapprochement of competing systems in space communications.

I. The report submitted by the present author to the Netherlands' International Law Association on the occasion of its annual meeting in 1973 deals with Dutch court practice in matters of State Immunity. It includes an analytical introduction (I), an explanation of some general principles regarding State Immunity, particularly in connection with the implementation of international customary law by the Dutch judiciary, as well as a review of the terminological problems involved (II), an explanation of the few statutory provisions affecting State Immunity which are in force in the Netherlands (III), and an extensive commentary on Dutch court practice in matters of State Immunity on the basis of the court decisions issued and published in this field since 1840 (IV). Abstracts of all relevant court decisions placed in chronological order have been added to the report (Annex).

1. L'art. 245 de l'ancien CPC (1834) déclarait que “Ne peuvent constituer l'objet d'une preuve … 3) des règles juridiques fondées sur les lois générales de l'Etat et non seulement celles basées sur des usages locaux, sur des coutumes, sur des traditions, ou sur des lois étrangères”. Les juges, dans leur quasi-totalité, avaient interprété cet article comme imposant la preuve du droit étranger. En le traitant comme un élément de fait, ils l'appliquaient secundum allegata et probata. En outre, le droit étranger n'était appliqué que lorsqu'il était différent du droit hellénique; s'il n'y avait pas de différence le droit hellénique s'appliquait, comme étant similaire au droit étranger (sur ce mode d'opération — “identiteits-hypotese” — v. en général Jessurun d'Oliveira, De antikiesregel. Een paar aspekten van de behandeling van buitenlands recht in het burgerlijk proces, 1971).

1. With the internationalization of the market international transactions also grow in number and importance. Here we should not only think of international sales agreements. Important as those may be there are also licence agreements, know-how agreements, agency-contracts, transport agreements, deliveries of installations and even of complete factories to developing countries, concession-agreements – all these play a role in international transactions. From all these contracts – the list is far from being complete – disputes can arise. How are these disputes to be resolved?

2. Court proceedings

Of course there is the national judge. Bringing the case in court is, however, in international matters even more than in the national field, not always looked upon favourably by business people. The reasons for this are manifold.

This report is, as its author observes, essentially an explanatory comment on the European Convention. It points out that the Convention regulates more than merely the immunity of states. Chapter I contains the immunity rules proper, Chapter II the procedural rules, in particular those concerning the summoning of a foreign state, Chapter III the rules to ensure that a contracting state gives effect to judgments given against it, whereas Chapter IV is concerned with a peculiarity of the Convention, i.e., the provision that states wishing to extend the number of cases in which immunity cannot be claimed beyond those covered by Chapter I, can make a declaration to that effect. This provision was put forward by The Netherlands delegation and was therefore termed the “zône grise néerlandaise” as distinct from the “black” zone (acta jure imperii)which recognizes immunity and the “white” zone which does not.