On 29 November 1979 the United States of America instituted proceedings before the International Court of Justice against the Islamic Republic of Iran in respect of the seizure and holding as hostages of members of the US diplomatic and consular staff and certain other US nationals. Although the Government of Iran chose not to appear before the Hague Court it defined its position in two communications addressed to the Court on 9 December 1979 and 17 March 1980. In these letters the Iranian Government took the view that the Court could not and should not take cognizance of the case since the question of the hostages

“only represents a marginal and secondary aspect of an overall problem, one such that it cannot be studied separately and which involves, inter alia, more than 25 years of continual interference by the United States in the internal affairs of Iran, the shameless exploitation of our country, and numerous crimes perpetrated against the Iranian people, contrary to and in conflict with all international and humanitarian norms.”

The idea for this study came from the realization that I am in possession of a largely untapped reservoir of valuable treaty materials: the network of bilateral investment treaties (BITs hereafter) which I have collected and studied for a number of years. In these treaties more than one hundred governments have taken a position on a number of issues relating to the promotion and protection of international investments. The three key issues are expropriation, transfer rights with regard to capital and revenues, and dispute settlement.

Without too much exaggeration one may still assert that in customary international law nearly everything remains controversial. Even its existence as a separate branch of international law, to say nothing of its topicality, is sometimes questioned.

Since the outbreak of the Second Gulf Crisis the question of the role of the United Nations Security Council in the maintenance of peace and security within the context of the institutionalized collective security system provided for in the UN Charter, and the closely related question of the principal legal and political limitations on the exercise of its authority under Chapter VII of the Charter, have been at the forefront of attention.

Belligerent reprisals have long occupied a curious position in the law of armed conflict. They are one of the oldest means for the enforcement of that law, and, until recently, were widely regarded as indispensable. Yet the scope for abuse and the danger that reprisals, far from enforcing the law, can produce an escalating spiral of atrocities completely undermining respect for the law have also long been recognized. Thus, the Lieber Code of 1863 states that:

‘The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilised nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage’.

State responsibility is a subject of international law folklore. Its importance and contribution to the promotion of the rule of law among the world community of states is well known. Its codification and development has, however, gone on at its own stately gait, even at the International Law Commission where it has been considered since 1955.

In his final speech at the Helsinki Conference (CSCE) in 1975, Prime Minister Wilson called the Final Act of the Conference a “moral commitment”, not an international treaty. Thus, the Act is not binding as a matter of international law, though it is quite clear from the historical context, and from the wording of the Final Act itself, that the participating states have some sort of obligation (“commitment”) to base their future conduct on the provisions of the Final Act. The Act formulates norms, rules intended to determine state behaviour, but these rules are not of a legal character. This is, apparently, the assumption underlying the Wilson statement, to which many similar statements could be added. As will be shown, a considerable body of state practice based on the same concept has developed, and points to the existence of non-legal (pre-legal, para-legal, moral, political) obligations as distinguished from legal ones. Is it a valid distinction, can a distinction really be made between legal and non-legal norms? If so, what constitutes the difference? What is the basis of obligation in both cases?

The international law of armed conflict aims to regulate the conduct of hostilities by belligerent parties and their armed forces and to protect certain especially vulnerable categories of people, such as prisoners of war and the inhabitants of occupied territories. How effective can it be in this pretension, and what mechanisms are available to promote compliance?

For nine years an ad hoc committee of the General Assembly of the United Nations worked to reach agreement on the text of an international convention against the recruitment, use, financing and training of mercenaries. In December 1989, the text was submitted to the General Assembly for adoption. Mercenary activity is not a new phenomenon. The attempt to regulate such activity suggests that rules are needed to meet what is either a new problem or an old problem the significance of which has increased. The object of this article is to attempt to identify what activities need to be proscribed and who should be held legally responsible and for what That will suggest a framework against which to evaluate recent texts concerning the use of mercenaries. These include not only the one elaborated under the aegis of the United Nations but also the OAU Convention for the Elimination of Mercenaries in Africa, the Luanda Draft Convention and Article 47 of Protocol I to the Geneva Conventions of 1949. It is necessary first to consider the historical position of the mercenary, before examining the role of such fighters in the conflicts of the 1960s and 1970s. It should then be possible to establish the nature of the perceived problem and, in particular, whether it is the activities of the ‘mercenary’ himself, as commonly understood, which is the cause of that problem. The article suggests that the issue of mercenary activity has been mis-diagnosed. It is not a matter of the jus in bello but of the jus ad bellum. The mercenary, it is argued, is an unlawful participant in the conflict. The problem is one of intervention and not of the status of such a fighter.

What is the legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights (ICESCR)? This question seems simple enough, and every lawyer interested in the international protection of human rights is likely to have come to ponder it at one time or another. Before the Second World War, the international protection of economic and social rights was mainly the concern of the ILO, with its own very specific techniques and procedures. Apart from that, the question of social rights had gained the attention only of some academics. After the War, economic and social rights were included in the Universal Declaration of Human Rights (Articles 22–29), though that is not a binding instrument. There is also, of course, the European Social Charter, concluded in 1961, and in force since 26 February 1965, which is a regional treaty. Since the entry into force of the ICESCR on 3 January 1976, however, there is now a binding and global instrument dealing with the protection of what are generally called “social rights” (in contradisctinction to “civil and political rights”).

The international community is formed first and foremost by states, which were defined by Vattel as “political bodies, societies of men who have united together and combined their forces in order to procure their mutual welfare and security”. The element missing from this definition relates to the need for a territorial basis for such political bodies. This necessity, however, is self-evident. As Oppenheim has noted, “a State without a territory is not possible”. This does not mean that territoriality is a criterion of personality in international law, but statehood is inconceivable in the absence of a reasonably defined geographical base. The frontiers of such an entity need not be established beyond dispute, nor is there any prescribed minimum of territory for the existance of a state, but some piece of land is essential before one can accept the establishment and continuation of a state.

A number of recent environmental treaties provide for a non-compliance procedure (NCP) to address failure by Contracting Parties properly to implement their treaty obligations. Examples include the 1987 Montreal Protocol to the 1985 Vienna Convention on the Protection of the Ozone Layer; the 1991 VOC and 1994 Sulphur Protocols to the 1979 Long-Range Transboundary Air Pollution Treaty; the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic; and the 1997 Kyoto Protocol to the 1992 Framework Convention on Climate Change, all of which envisage a separate mechanism for compliance being established. This recourse to non-compliance procedures is evidence of a growing awareness that traditional rules of international law concerned with material breach of treaty obligations and with state responsibility are inappropriate – and, indeed, unable – fully to address problems of environmental treaty compliance. This is a consequence both of the nature of international environmental obligations, in particular their non-reciprocal character, and of the inherent limitations of the present rules relating to treaty breach and state responsibility in addressing harm especially to the global commons. This is a consequence both of the nature of international environmental obligations, in particular their non-reciprocal character, and of the inherent limitations of the present rules relating to treaty breach and state responsibility in addressing harm especially to the global commons. Even the innovative provisions of the current draft articles of the ILC on state responsibility, which address breach of multilateral and erga omnes obligations and are discussed further below, do not completely fill the ‘responsibility gap’. Nonetheless recent international environmental agreements do not eschew traditional international law mechanisms; indeed, in all of the instances cited above, non-compliance procedures function alongside traditional dispute settlement mechanisms. This duality is possible if one views NCPs as located within a wider category of non-confrontational dispute avoidance procedures which combine classical methods, which have their roots in the dispute settlement mechanisms developed under general international law, with ‘innovative procedures for enhancing compliance with, and responding to, non-performance of international obligations.’

The article discusses the question of the international responsibility of the European Community against the background of the International Law Commission's (ILC) recent work on the responsibility of international organizations generally. It describes the role of the EC (and EU) in international relations and highlights its special legal features in the light of plentiful practical examples. The various practical issues drawn from the EC's voluminous international treaty practice are grouped into what the paper calls “horizontal” and “vertical” issues, illustrating the different aspects related to the division of competence between the organization and its Member States and the operating features of the EC legal system reflecting its nature as “executive federalism”. The underlying theme of the paper recognizes that there are important “public morals” aspects calling for clear rules on the responsibility of international organizations, but there are also practical realities related to the diversity of international organizations pointing to the direction of special rules for instance in the case of the EC. On the basis of a broad review of the EC practice, the paper offers some critical comments on the ILC work suggesting that the traditional notion of an international organization does not resonate well with the realities of the European Community. In particular it argues that the ILC has overlooked the notions such as the Regional Economic Integration Organization (REIO), which has emerged in multilateral treaty practice during recent years, and failed to consider broader international law implications that such practice entails, including for purposes of international responsibility.

On 12–13 December 1981, a newspaper published a description of the scramble among several groups of scientists and treasure hunters over a wreck found in 1976 on a shallow reef of the Caicos Islands and believed by some to be the “Pinta”, one of the three ships that sailed with Columbus in 1492. On 28 August 1981, the same paper announced the discovery and impending removal of seventy-two rotting wooden hulks lying on the seabed off the coast of Southern Japan near Nagasaki. It has been contended that these hulks are the remains of the fleets with which Kublai Khan vainly attempted to invade Japan in 1274 and 1281.a Similar notices appear with increasing frequency in the international press. In 1980, for instance, the discovery of the wreck of a Czarist warship, the “Admiral Nakhimov”, sunk in the Strait of Korea during the Russo-Japanese War of 1904–1905, was announced; it is rumoured that the ship carried an enormous treasure of gold, platinum and other valuables. This discovery led to a heated controversy between the Soviet Union and Japan, in the course of which the former asserted that the salvage operation planned by a Japanese businessman would amount to “an act of piracy”, the vessel having retained its character as a Russian warship and, therefore, the sovereign immunity attached to it. Another event which provoked considerable argument was the partly successful attempt by the United States research vessel “Glomar Explorer” to raise the wreck of a Soviet submarine which had sunk 1,000 miles north-west of Hawaii in 1968.

As a subject of international law, the refugee is inherently temporary: refugee status exists in order to fill the gap caused by a breakdown of the normal bond between citizen and state with ‘international protection’, until this bond can be restored, either with the original state of nationality, or with another state. While this ambition is clear, the practice of refugee protection under the current, post-1951 regime has exposed the serious problem international refugee law (IRL) faces with regard to the tail-end of protection, also known as ‘durable solutions’. This chapter studies the most prominent attempt made by UNHCR and states within the refugee regime at re-invigorating the temporary character of international protection—namely the mechanism known as ‘temporary protection’. While the concept can be traced to formulations of ‘temporary refuge’ in the 1980s, temporary protection (TP) truly emerged as a term of art in the 1990s, as Western Europe was faced with a large-scale influx of forced migrants from the former Yugoslavia. In 2001, TP was the subject of an EU directive, which partly clarified the relationship of TP to mainstream IRL—notably whether TP should be seen as a substitute for, or a prelude to, the operation of the 1951 Refugee Convention. Ambiguity has remained the hallmark of the TP concept, however, not least in UNHCR’s attempts at formalising a TP regime outside the European ambit. After examining the main features of these attempts, the chapter concludes that, while the EU directive should be taken seriously, a continuing doctrine of temporary protection outside established IRL is both legally unsound and politically unconvincing.

Article 121 of the 1982 United Nations Convention on the Law of the Sea (LOS Convention) retains the traditional definition of an island as: ‘a naturally formed area of land, surrounded by water, which is above water at high-tide’ (paragraph 1), and attributes to it the same maritime spaces as the mainland. These spaces are at present: the 12 mile territorial sea (TS), the 24 mile contiguous zone (CZ), the continental shelf (CS) and the 200 mile exclusive economic (or fishery) zone (EEZ) (paragraph 2). However, unlike the 1958 Geneva Convention on the Territorial Sea which gives the same legal status to all natural islands, paragraph 3 of Article 121 limits the legal entitlement of islands to maritime spaces by providing that:

‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’.

There is widespread agreement about the fact that the European Community is a highly complex legal system situated outside the mainstream of public international law. Nobody would deny that Community law forms an ‘autonomous legal order’ in the sense proposed by Sørensen, but then, that characteristic is shared by many other international organisations. Yet, many authors, among which are the majority of specialists in EC law, go far beyond this and argue that EC law is situated outside the ‘system of international law’ altogether. Although seemingly anchored in international law (as it was created by an international treaty) the European Community has been drifting into uncharted waters. It is often considered to be a ‘sui generis’ organisation, no longer part of international law though not yet a (federal) State on its own. The European Court of Justice, for its part, has never stated in so many words that EC law is entirely outside the scope of public international law, but some of its dicta seem to point in that direction.

On Thursday 31 May 2001, the International Law Commission (ILC) adopted, by consensus, at the second reading, the draft articles on the responsibility of states for internationally wrongful acts. It has thus almost put an end to a saga which goes back more than seventy years to 1927 when a committee of experts constituted by the League of Nations decided to put the subject on the agenda of the Codification Conference of 1930, with very little success. As for the ILC, it put the subject on the agenda in 1955 before finally completing its investigation forty-six years and five Special Rapporteurs later.

International law, like other fields of law, is not static. It develops constantly, accommodating the changes in international practice, attitudes of States, and the changing needs and requirements of the international community. According to the ICJ, ‘the possibility of the law changing is ever present’. At the same time, the notions of legal stability and security are inherent in the concept of law. Considering the development of law, we are still confronted with the trend to guarantee stability.

The obstacles facing the Special Rapporteur of the International Law Commission in drawing up a draft on the “content, forms and degrees of international responsibility” arise mainly out of the absence in the first part of the draft of any real theory of international delict introducing into this general concept criteria for differentiation which would enable more restricted categories to be distinguished. Once it is admitted that responsibility (defined in the abstract as the emergence of new legal relations between the wrongdoer on the one hand, and his victim or third parties on the other) can take a variety of forms, covers a broad spectrum and involves different subjects according to the legal causes which gave rise to it, then we can no longer avoid analyzing those causes. The internationally wrongful act, defined as the violation by a State of an international obligation, ceases to be the homogeneous legal concept of the first part of the draft adopted on first reading by the International Law Commission, but instead breaks down into a multiplicity of acts.