There is a certain paradoxical character about the concept of lex ferenda as an element of legal discussion, since the defining feature of lex ferenda is that, whatever else it may be, it is not part of positive law. Yet the term is at times found useful in doctrinal discussion; it was the subject of a penetrating essay, some 20 years ago, by the late Professor Michel Virally, and the time is perhaps ripe for its re-examination, in the light, in particular, of some more recent decisions of the International Court of Justice. Lex ferenda serves as a label for something which has at least conceptual existence, as a contrast or opposite to lex lata, the law that exists and obliges the subjects of law to adopt, or to refrain from, certain defined courses of conduct in certain defined circumstances. The term is not, however, a mere antithesis, in the sense of referring to something or everything that is not law: the force of the Latin gerund (‘delenda est Carthago’) is that the term refers to something that in some sense ought to be law, but is not. There are of course numerous possible ideas and rules which might be law, but of these many not only are not law, but are not even potential law, inasmuch as they would not be desirable as law, and would therefore not fall into the narrower, more precise, category of lex ferenda.

The core document so far in the field of the protection of victims' rights is the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”, adopted in 1985 by the UN General Assembly. Starting from the notion that this is a declaration ‘only’, it was suggested by some to develop a victims' rights convention, aiming to improve the legal status of the rights concerned. Following that suggestion, the initiative was taken by independent experts to draft the “UN Convention on Justice and Support for Victims of Crime and Abuse of Power”.

This article firstly discusses the legal status of the 1985 Declaration, including the question what parts might have reached the status of international customary law. This analysis is followed by the question of what can be learned from today's academic discussions on characterising international legal standards – hard alongside soft law, etc. – and from recent debates on lawmaking in the international legal field (inter alia, communicative lawmaking and co-regulation). The article addresses some major risks, when embarking on the route of a possible victims' rights convention, including experiences to be drawn from other policy areas. Having done this, it comes up with the instrument of a framework convention, combining the benefits of legal bindingness with the flexibility and ‘stepping-stone character’ of successful soft law documents. It is seen as a way out of the problems discussed in the article. After having presented some further thoughts on monitoring procedures, the article finally takes a careful look at the previously mentioned Draft Convention.

Since the entry into force of the Antarctic Treaty in 1961, the Antarctic Treaty Consultative Parties have adopted numerous regulations in order to protect and preserve the fragile environment of Antarctica. The enactment of legislation on environmental and other issues is the prerogative of a limited group of Contracting Parties, the Consultative Parties. They negotiate and adopt recommendations as well as new conventions related to the Antarctic Treaty. The entire body of rules is referred to as the Antarctic Treaty System.

At the meeting of the Conference on Security and Co-operation in Europe in Moscow in September 1991, Mikhail Gorbachev, the former President of the old Soviet Union, in his opening speech, raised the problem of minority rights in the newly emerging States of Eastern Europe and the Baltics. With the movement of the many different ethnic groups throughout the former Soviet Union since 1917, the rush to independence by the various republics creates new and, in many cases, substantial minority groups. The violence seen in Azerbaijan between Azeris and Armenians may presage events throughout Europe if care is not taken to protect minority rights. Often through naïveté or in a blatant attempt to stir up national fervour in the new State, the delicate task of defusing ethnic frictions in the creation of open, stable and successful societies is being mishandled. The crisis is sufficient for the Council of Europe to have deferred the applications for membership of Latvia, Lithuania and Estonia while their constitutional provisions for minority groups are examined. The former Eastern bloc States are in a period of transition as old nationalisms buried by Stalinism are reawakened – the issue of minority groups within States created out of the collapse of the Ottoman and Austro-Hungarian empires has taken on fresh life.

Traditionally, international law has barely paid attention to the democratic legitimacy of its most important subjects – states –, having been concerned only with relations between states and not within them. The neutral position of international law vis-à-vis a state's internal form of government changed after the collapse of communism. The question of whether the citizen could claim democratic governance, made headway. The normative value of democracy has also deeply influenced the foreign policy of a large number of states: since the 1990s, respect for democracy has at times been considered a condition for recognizing a new state and it is increasingly a prerequisite for membership of international organizations. A forcible imposition of democracy is however doubtful. Finally, the article examines whether international law itself is made in a sufficiently democratic manner. The formation of international law through treaties or custom, for instance, is inherently suffering from a democracy deficit, even though some remedies seem possible. There are likewise problems of democratic deficits in the decision-making processes in international organizations. Powerful states are able to use decision-making to their advantage by using all kinds of formal and informal mechanisms. The article explores, as a case-study, the situation in the World Trade Organization.

The extent of destruction and appropriation of cultural property in recent armed conflicts, especially those in Croatia and Bosnia and Herzegovina, questions the adequacy of international rules aimed at the protection of cultural property in armed conflicts. This article seeks to examine that problem by analysing the basic international rules devoted to the protection of cultural property in the event of armed conflict.

Under Article 2 of the Treaty of Rome the European Economic Community “shall have as its task … to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the member States belonging to it.” These purposes are to be achieved by establishing a Common Market and by progressively approximating the economic policies of the Member States.

The legitimacy of decision-making within international institutions increasingly is the subject of both policy and academic discourse. This essay addresses that subject with respect to international institutions involved in implementing the concept of sustainable development by way of multilateral environmental agreements (MEAs) and which in that process engage in normative development. The question of the legitimacy of decision-making arises in this context, in particular, because developed states have ‘outsourced’ their obligation, to transfer financial means to developing states for purposes of implementing MEAs, to the World Bank and institutions associated with the Bank, such as the Global Environment Facility. This essay analyses the manner in which the legitimacy of decision-making is addressed in relevant policy and academic-legal discourse and sets out the relevant institutional and decision-making structures through which the concept of sustainable development attains normative content. It concludes that the interactional theory of international law and the principle of good self-regulation, or eunomics, offer valuable insights into what is at stake when considering the legitimacy of decision-making in the implementation of sustainable development by way of MEAs, insights that are relevant within the wider context of decision-making by international institutions.

News of the death in Wellington on 25 September 1984 of Robert Quentin Quentin-Baxter shocked his many friends attending the 39th session of the General Assembly of the United Nations. The traditional moment of silence was observed by the Sixth Committee, and many tributes followed, for Quentin's life had been one of dedicated and loyal service to his country and to the community of nations.

Peter Kooijmans' inquiry into the doctrine of the legal equality of states and, with it, the foundations of international law, reflects a peculiar brand of cosmopolitan thought, namely innate cosmopolitanism. Though under-recognized, innate cosmopolitanism is an argument for re-conceiving the modern international legal order according to a deep unity underlying the whole of human relations. As such, innate cosmopolitanism is distinct from better-recognized examples of cosmopolitan thinking, including liberal cosmopolitanism and cosmopolitan constitutional theory. Rejecting the normative individualism of liberal cosmopolitanism, and eschewing the formal orientation of constitutional theory, innate cosmopolitanism envisions the world as a viable collectivity that is perceived to exist, irrespective of formal recognition, as a matter of historical fact. But while innate cosmopolitanism operates according to a top-down model of collectivity, it nonetheless recognizes and incorporates smaller units of collectivity. As such, it holds especial relevance at a time when international legal doctrine looks beyond the preeminence of states, but continues to be bound to them in practice. Following innate cosmopolitanism, the international system incorporates all members equally when it takes into account the different material position of each member vis-à-vis the collective whole. The rights and responsibilities enjoyed by each, and their political situation within the community, will vary accordingly. This article will explore the innate cosmopolitan contribution to international law by reference to two current discourses, concerning ethical legitimacy and constitutional theory, as they grapple with justifications for and the doctrinal viability of an expanding public order globally. Additionally, examples drawn from the activation of the crime of aggression in the Rome Statute, and the Kadi case, will be considered for the critical light they throw on innate cosmopolitan theory.

On 26 July 1974 the International Law Commission (ILC) adopted its final draft articles on succession of States in respect of treaties and recommended that the General Assembly of the UN convene an international conference to study the draft and to conclude a convention. This terminated twelve years of work during which the ILC studied five reports of Sir Humphrey Waldock, one of Sir Francis Vallat – both Special Rapporteurs for the topic – and many observations from Member States. In December 1974 the General Assembly asked for further comments from the Member States, and deferred further discussion until its 30th session (1975).

‘Need I apologize for my choice of subject? Some may say it belongs to the realm of exotics of law. Some may ask: Why deal with issues so remote when there are so many much closer to us still awaiting a solution? Why reach so far?’ With these words the late Judge Manfred Lachs introduced his 1964 lecture at the Hague Academy of International Law on the topic ‘The International Law of Outer Space’. The subject is no longer exotic today. Within the three decades following the launch of Sputnik 1 in 1957, the use of space technology is now widespread, not only for military but also for civilian purposes, including satellites for communications, meteorology, television and radio broadcasting and other applications. Remote sensing data is employed in agriculture and resource management as well as in environmental monitoring. Writing a quarter of a century later than Lachs, in a prologue to a collection of articles by “a new generation of space law scholars’, K.-H. Böckstiegel notes:

‘Space law is coming of age. What started out as an exotic field of law and then continued with the discussion and codification of legal rules, following the development of exploratory space activities, is now confronted with the challenge of arriving at just and effective rules for the use of space serving many practical and conflicting economic, political and military interests.’

The European Community wields substantial economic influence outside its borders. The Community is a major donor, providing ECU 5.8 billion in development assistance in 1996, and grants the developing countries extensive trade preferences under the Lomé Convention and the Generalised System of Preferences. To what extent, however, the Community's economic power should be used to promote human rights has been, and remains, a controversial issue.

The contribution argues that facticity of the human rights impacts of economic globalisation increasingly undermines the normativity of the state-centred conception of international human rights law. The exposure of the international legal order of states to the operations of global business entities leads to a collusion of sovereign state interest and globalised corporate power at the expense of protecting the rights of victims of human rights violations in the global market economy. The contribution scrutinises two prominent attempts to address this lacuna of protection: transnational tort litigation and the UN Guiding Principles on Business and Human Rights. It is argued that both approaches are not only an expression of the present crisis of international human rights law but also risk contributing to its perpetuation. While the ‘escape into tort’ results in the privatisation of public human rights in the global market economy, the UN Guiding Principles entrench their territorialisation in the state legal order in the face of global economic challenges. The concluding section reflects on the future pathways of international human rights law by positing a choice between, on the one hand, a more radical departure from human rights’ state-centred heritage and, on the other hand, a transformation of the international legal order of states by virtue of human rights. It highlights the importance of extraterritorial human rights obligations in recovering the state's legal accountability for human rights violations committed in the course of global business operations.

What is the relation between law and time? How do international lawyers conceive law in time? This chapter aims to answer the question of how international law is situated in time in a paradigmatic fashion. Looking at social time—the common perception of time in society as opposed to individual or astronomical time—the law is an institution defining time but also relying on a temporal conception. The chapter establishes three basic paradigms of how international law has been situated temporally: the paradigm of atemporality, depicting law as eternal and unchangeable; the paradigm of temporality, defining law as ascertainable but changeable; and the paradigm of fluxus, defining the law as necessarily changing, unsteady and moving. The chapter shows how the understanding of international lawyers shifted from the paradigm of atemporality to the paradigm of temporality. It reviews the treatises of international legal scholars and the notion of peace in peace treaties from the 17th to the 20th century. The chapter then goes on to discuss whether there has been a second paradigm shift from the paradigm of atemporality to the paradigm of fluxus. For this purpose three cases are explored: the evolutive interpretation of the notion of security, the changing customary law on state immunities and the principle of sustainable development. The chapter concludes with the outlook of transcending the paradigmatic approach with a cubistic look at the relationship between law and time.

The polar regions stand apart from other areas of the globe because of their severe climate and remoteness. Those conditions have also impacted on the development of the legal regime of the polar regions and led to questions concerning the applicability of general public international law to these regions. The present Article investigates this interaction from the perspective of one specific issue: the establishment of the outer limits of the continental shelf in accordance with Article 76 of the United Nations Convention on the law of the sea. Article 76 at present is being implemented worldwide by coastal States and the polar regions are no exception. The present analysis indicates that the implementation of Article 76 in the polar regions is largely similar to other regions of the world. Article 76 contains an arrangement of considerable legal complexity, which often has to be applied in a complex legal and politico-geographical context. The major differences with other regions are no doubt presented by Antarctica, in which case at least for the moment the process of implementing Article 76 also will not be finalized.

Nigeria as a comparatively newly independent state has not developed extensive practice and case law in the area of immunity of foreign state owned property within the country. However, it is possible to glean from the existing laws and the attitude of the Nigerian government in disputes on this subject what may be generally regarded as the Nigerian practice in this field.

Is the World Trade Organization (WTO) in a legitimacy crisis and might the protracted Doha negotiations be evidence of it? This article understands the notion of ‘legitimacy crisis’ as a severe threat to an institution’s viability due to fundamental shifts in the legitimising ideas underlying the institution, an external threat to its values or its ability to fulfil its functions. It contends that the WTO is not yet definitely in a legitimacy crisis because the Doha negotiations still reveal the commitment of the WTO members to the values and legitimising ideas of the WTO. Perception of a legitimacy crisis fuels the negotiation of free trade agreements (FTAs) amongst key WTO members, which could be used to advance the Doha negotiations, force developing countries into agreement and shape the outcome of the negotiations in favour of developed countries. Such an outcome, this chapter cautions, could be the real onset of a legitimacy crisis if developing countries gain very little from a Doha agreement. To prevent a crisis and move the negotiations forward this chapter suggests that the different trade-related development needs of developing countries need to be assessed more seriously and developing countries need to be enabled to address serious adverse consequences linked to any trade liberalisation they undertake.

This article attempts to demonstrate that the law of self-defence in the UN-Charter is uncertain. Nobody doubts that the Charter permits self-defence, but the precise modalities of the right are unclear. This is not an exposé of the whole spectrum of issues that can arise or have arisen. Rather, the article considers a few examples and analyses the structure of the arguments scholars and tribunals employ in order to find out where our limits of ‘legal cognition’ lie. Several topics are examined, inter alia, whether an ‘armed attack’ is a necessary condition for the exercise of self-defence under the UN-Charter; the actions qualifying as armed attack; whether an armed attack has to occur or whether the victim state merely reasonably has to expect it to occur; and whether individuals can commit an armed attack. It will become clear throughout the article that the closer one looks at the law of self-defence, the less certain the law becomes. I submit that the uncertainty of the law on self-defence is caused by a lack of legal regulation – there is only so much that Article 51 can tell us. Scholars importing their own ideas of what scope self-defence should have do not enhance our understanding of the positive law, their designs simply are not law.

Legal equality of states is a fundamental principle of international law. The contributions in this special volume examine this principle in today's international law context while engaging also with Pieter Kooijmans' book The Doctrine of the Legal Equality of States. This chapter introduces this 1964 book and briefly discusses the various contributions in the present volume against the background of this book.