This article has the limited ambition of analyzing some special features of the law of the General Agreement on Tariffs and Trade (GATT) and its successor organization, the World Trade Organization (WTO), in the framework of general international law. The GATT, as is the case with all those international organizations which have their own substantive law and are not merely vehicles for international negotiation and co-ordination, inevitably is a special branch of international law. As with all such branches it develops rules which deviate from general international law and which further refine and adapt the rules and principles of international law. In respect of GATT, as in some other exceptional cases (EC), there is even reason to ask the question whether it has or has not become a self-contained regime in international law. That is to say that the system's countermeasures are not the normal countermeasures of international law, such as reprisals and the exceptio non-adimpleti contractus in treaty law, but are entirely separate from those normal countermeasures and are regulated so as to limit the freedom of States to have recourse to them. Although Riphagen has described the GATT not so much as a self-contained system, but as a number of ‘conventional derogations’ from general rules of international law, there is reason to look again at this assessment given the evolution that has taken place in the GATT system since then.

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.

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.

On 10 June 1977, at Geneva, the representatives of ninety-seven States, of the Holy See and of three national liberation movements put their signatures to the Final Act of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. This event brought to a formal close a Conference which had commenced its work in 1974, and which had, in the course of four consecutive annual sessions deliberated, negotiated, and more or less satisfactorily resolved a large number of often delicate issues of humanitarian law.

International legal accountability involves the legal justification of an international actor's performance vis-à-vis others, the assessment or judgment of that performance against international legal standards, and the possible imposition of consequences if the actor fails to live up to applicable legal standards. This article examines questions of accountability in the international legal system through the lens of the state responsibility regime. It begins with an examination of the law of state responsibility and the accountability framework that it provides. By definition, that framework can facilitate only inter-state accountability on the basis of positive legal rules. The article then turns to the increasingly rich variety of other modes of international legal accountability. The rise of these alternative modes reflects the expansion of international law's normative horizons beyond inter-state concerns, the widening of the range of international actors, and the diversification of international law-making and implementation methods. It also reflects the fact that states rarely resort to the law of state responsibility to hold one another accountable for breaches of international law. Thus, while state responsibility remains the “paradigm form of responsibility on the international plane,” it is not clear that it constitutes the paradigm form of legal accountability in contemporary international practice.

Following the First World War, a group of lawyers and diplomats drafted the Statute of the Permanent Court of International Justice. Ever since, the Statute of the World Court has contained an article (Article 38) which indicates the rules the Court should apply when it administers the law. Since that time the complexity of international society has increased considerably, and the need for speedy production of rules of international law has also grown very conspicuously, consequent upon the ever-increasing interdependence of the more than 160 states which are now the main producers of that law. In these circumstances, it seems to me to be of importance to state in as plain terms as possible how international law is made.

The concept of state immunity connotes that a state does not fall under the jurisdiction of foreign courts (immunity from jurisdiction) and that its property located in foreign territory is not subject to attachment and execution (immunity from execution). Thus, state immunity has a twofold nature: immunity ratione personae, in so far as a foreign state is involved, and immunity ratione materiae where foreign state property is at stake.

As set out in section II of this paper, the Diplomatic Conference, by adopting Article 48 of Protocol I, reaffirmed the principle of distinction “between the civilian population and combatants and between civilian objects and military objectives”. The obligation to make this distinction serves, as the Article states, “to ensure respect for and protection of the civilian population and civilian objects”. As a logical consequence of this obligation, the Article lays down that the Parties to the conflict “accordingly shall direct their military operations only against military objectives”.

This chapter argues that it is illuminating to read ‘crisis’ not as a fact, but as a political discourse that functions as a ‘technique of government’. Drawing examples from the context of the EU’s contemporary policy responses to the financial crisis, it illustrates how experts produce knowledge about ‘crises’, and how the discourse of crisis is operationalized as a tool for giving effect to governmental ambitions. This reading of crisis as a technique of government raises three inter-related challenges to the implied assumptions of the crisis narrative. First, it puts into question the idea that crises are ‘uncommon’ or ‘special’ events, and instead argues that the discourse of crisis is commonplace in the EU, and acts as a normative assertion about the status quo. Second, it undermines the simplistic logic of cause and effect by emphasizing the production of truth that lies at the heart of crisis discourse and how these truths shape expectations and policy proposals. Third, this reading complicates the idea that crises are ‘game changing’ moments of social or political shift, arguing rather that their political effects remain uncertain and tied up with the success of particular forms of knowledge.

2004 was an eventful year for diplomatic protection. The ILC adopted at first reading a full set of draft articles. At the same time, some opportunities to clarify contentious issues concerning the relation of diplomatic protection with human rights law were missed. In the Avena decision, the ICJ made a step backwards, compared to LaGrand, with regard to the characterisation of the applicant's action as diplomatic protection: the Court referred to the ‘inter-dependence’ of the rights of the State and the rights of the individual and it did ‘not find necessary to deal with Mexico's claims of violation under a distinct heading of diplomatic protection’. The Court also failed to address thoroughly Mexico's contention that Art. 36 VCCR individual right to notification can be characterised as a human right: it only provided a clue as to its position when it stated that ‘neither the text nor the object and purpose of the Convention, nor any indication in the travaux préparatoires, support the conclusion that Mexico draws from its contention in that regard.’ The present article looks at the case law of the ICJ in the field of diplomatic protection to evaluate whether the approach of the Court to diplomatic protection has become more human-rights oriented in the last few years. The discussion is conducted in the context of the ILC project, to assess potential interactions between the ILC work and the ICJ case law. The main argument the article presents is that, whereas the Court is hesitant in leading to a jurisprudential elaboration of diplomatic protection, the remedies ordered show a willingness of the Court to make diplomatic protection instrumental to the protection of human rights.

Since the 1991 Gulf War, the challenge of protecting the environment during armed conflict has been high on the global agenda. Over the past two years there have been at least five major Meetings of Experts on the subject, the Sixth (Legal) Committee of the UN General Assembly (hereafter Sixth Committee) began deliberations on it, as has the UN General Assembly itself, and it was addressed at the UN Conference on Environment and Development (hereafter UNCED), ultimately forming part of the Rio de Janeiro Declaration on Environment and Development (hereafter Rio Declaration) and Agenda 21.

The Final Act of Helsinki and the pattern of international relations based upon it lend themselves very well to some reflections on the conditions which make it possible, and preferable, to root new efforts towards multilateral co-operation in existing international organizations, or to create new international organizations for this purpose, or, again, to avoid or postpone the structure of an international organization. Indeed, the importance of the international organization as a regulatory instrument should be substantiated by defining not only its potentialities, but also its limitations.

As was mentioned in the previous note on the above subject, the (first) Conference of Government Experts held in Geneva in May 1971, although an important step on the road towards the “reaffirmation and development” of certain more or less neglected parts of the international humanitarian law applicable in armed conflicts, was in itself insufficient preparation for a future diplomatic conference. A second conference of experts seemed therefore to be indicated, and the announcement, made in the final session of the Conference by the President of the International Committee of the Red Cross (or ICRC), that such a conference would be organized in 1972, was received with unanimous approval and satisfaction.

United Nations Peace Operations and UN mandated Peace Enforcement Operations, which are usually conducted by regional organizations or ad hoc coalitions of States, are wholly dependent upon the voluntary contribution of troops by Member States. This involves transferring parts of command authority to the United Nations or to the regional organization which has undertaken the mission under UN mandate, while other aspects of authority over the troops remain under the control of the State which is contributing its troops. This partial transfer of authority results in complex multilayered command structures which has given rise to certain legal and practical questions relating to the attribution of conduct in relation to allegations of possible violations of international law and the most appropriate remedies in such cases. This article provides an overview of the types of command structures most often used in both UN and UN mandated operations and explores the questions resulting from these in relation to attribution of conduct. It also discusses possible shortcomings in the provision of remedies and offers some suggestions as to how these might be addressed.

During a meeting of our Editorial Board which took place as far back as October 1990, we found ourselves debating the question whether closed or semi-closed systems as they could be seen to emerge in various fields of international law (e.g., GATT practice, community legal order) would become a potential risk, constituting a threat to the global unity and efficacy of the international legal order. Bruno Simma's thorough and stimulating analysis in the 16th issue of this Yearbook (1985) entitled ‘Self-contained Regimes’ additionally fuelled the very early stages of our preliminary thoughts with regard to the scope and implications of the question raised.

In 1994, the International Law Commission (ILC) adopted the Draft Articles on the Law of the Non-Navigational Uses of International Watercourses. Having been favourably reviewed by the General Assembly of the United Nations, these Articles now form the negotiating text for a global treaty on international water law. The fate of this treaty remains uncertain. But irrespective of the results of the negotiations, the text formulated by the ILC may become an authoritative source of citations for States, scholars and other actors involved in disputes over water scarcity, and is therefore likely to have a determinative influence on the development of international water law. For this reason a critical examination of the ILC Articles is imperative.

In this study theories which perceive the law's main goal to be instrumental in wealth creation, in the sense that legal rules should be formulated so as to be conducive to efficiency (and hence increase the wealth of a society), will be contrasted with perceptions of law as the continuous balance between political choices whose purpose is to advance justice, including distributive justice, as equality. These values are recognized, not as prudential or utilitarian, but as categorical. An apparent characteristic of doctrines which perceive the role of law as enhancing wealth in that they necessarily accept, as given, the contemporary values of distributive justice. In addition to this Panglossian quality, they have also raised doubts regarding welfare theories of social cost, “externalities” which provide the bedrock foundation of emerging theories of liability for harms due to scientific and technological innovations. These critics of social cost theories question the attribution of causation, and thus of costs, as a matter of logical or social necessity to any enterprise or conduct. Their question is “what is a cost of what activity?” This has been paraphrased, for example by Calabresi, as: “Is a pedestrian-auto accident to be attributed to driving or walking?” The welfare economists, in opposition to this relativism, argue that protean “transaction costs”, or “information costs” justify intervention in the name of amelioration. In this way the legislatures and the judges are called upon to intervene in the name of that same efficiency which was also standard to the conservative opponents of strict and absolute liability.

Treaties and custom are generally regarded as the major sources of international law. They derive their validity more or less directly from the consent of those subjects of the law which also possess the institutional authority to make law. The perceived limitations of the consensual nature of these two sources have resulted in doctrinal controversy concerning, inter alia, the existence of sources of international law which are not essentially consensual. This is the rationale for the inclusion of general principles of law recognised by civilised nations alongside treaties and customary international law in Article 38 of the Statute of the International Court of Justice, as one of the sources of international law to which the Court may refer. Similarly, the phenomenon of ‘soft’ international law is, by and large, a response to the failure to generate the full measure of State consent required for attributing full legal status to the ‘soft’ norms in question, often in relation to developing fields of international concern. It is often said that these non-consensual sources have an inferior status when compared with the consensual ones. The purpose of this paper is to consider critically the basis and the form of the differentiation between these two apparently non-consensual phenomena (i.e., ‘general principles’ and ‘soft’ law) on the one hand, and the paradigmatic (because consensual) types of international law (i.e., treaties and custom) on the other.

This chapter considers the idea that international human rights law is both produced by and dependent upon crisis. Surveying the capaciousness, ambiguity, and constructedness of the concept, we position the relative weight given to particular rights in terms of their framing as ‘crises’. We focus on how the idea of crisis has been differently deployed in the Universal Declaration of Human Rights and in the division between civil and political rights and economic, cultural and social rights to argue for a critical engagement with the language of crisis in human rights law, and to ask how that language has shaped the value and meaning of rights discourse more generally.

The Soviet doctrine of foreign state immunity starts out from the principle that state sovereignty, the sovereign equality of states, underlies this rule of international law. Sovereignty is an indefeasible attribute of every state. It follows from the legal equality of states, and their mutual independence, that no state may wield power with regard to another state, its organs and its property.