When, on 12 August 1949, the Diplomatic Conference of Geneva finished its work, an important part of the law of armed conflict had been “codified and progressively developed” in the light of past experience both of the Second World War and other recent armed conflicts. However, this was a far cry from saying that one could lean back in satisfaction over a job well done; indeed, equally –or perhaps even more– important problems of the law of armed conflict had remained outside the scope of the Conference and, hence, had not found a solution in the four Conventions it had adopted. The Conference had, in fact, been restricted to an examination of the problems concerning protection of war victims rather than those concerning warfare proper; and, although the IVth or Civilians Convention in particular incidentally deals with the power of belligerents to attack enemy territory, the problem of the protection of the civil population against the dangers of modern warfare had remained essentially open.

In the spring of 1971, the case of Ralph Joseph Waver, an American deserter, became a topic of discussion in Dutch legal circles, particularly those interested in public international law.

R.J. Waver was a gunner in the United States Navy serving in the U.S.S. “Marias” which formed part of the Atlantic fleet. On 26 June 1970 his ship called at Rotterdam and Waver deserted, inter alia because he strongly disagreed with American policy in South Viet-Nam. He went into hiding in Amsterdam where he established contact, through friends, with “Release”, a foundation which among other things made it its business to assist foreigners, if necessary with the help of lawyers and other experts. On their advice Waver departed for Sweden on 21 July 1970, as this country was said to offer him the best chance of being admitted. Late in July 1970 he applied to the Swedish authorities in Malmö for a residence permit. However, when the Swedish Government proceeded to hand over friends of his, who found themselves in the same predicament, to the United States Army in Germany, even before they had had time to bring an appeal against the refusal to grant them a residence permit, Waver returned to the Netherlands late in August 1970. “Release” thereupon approached some Members of Parliament who in their turn sounded out the Minister of Justice in regard to Waver's chances of obtaining a residence permit in the Netherlands. The Minister promised to take up the case with the Assistant Secretary-General of Justice. On 22 October 1970 the above Members of Parliament and the Assistant Secretary-General had their first discussion, part of it in the presence of Waver and his Counsel. Opinions differ as to the results of this discussion.

In the opening chapter the volume editors reflect on the content of the book. They do so, by first touching upon the ideas the Editorial Board of the Netherlands Yearbook of International Law (NYIL) had in mind when opting for a volume on the issue of crisis, including such questions as: how international law reacts to crises and whether or not crises in daily realities also cause crises within separate international legal sub-disciplines. Next to that they summarize the eight chapters, followed by a reflection upon four topics and perspectives that come to the forefront when taking the contributions together and not reading them as reflections on separate trends in separate fields of international law. The four topics relate to: the role of crises in developing international law; do we do the things right or do we do the right things?; reconsidering and sharpening compliance; and the role of international lawyers.

This chapter compares and contrasts temporary international criminal tribunals to the permanent International Criminal Court (ICC) referencing international criminal law’s and UN Security Council’s (UNSC) relationship to ‘crisis’. All the situations where the UNSC has acted in international criminal justice are critical in the sense that they involve crucial decisions where members elect among distinct choices in inherently unstable situations. My argument is that crises enable a negative grounding of legal and political jurisdiction that relies on legitimation that is confirmed by judicial bodies. The analysis outlines the institutionalisation of an exceptional legal mechanism in the practice of the International Criminal Tribunal for the former Yugoslavia (ICTY), its proliferation to the International Criminal Tribunal for Rwanda (ICTR) and its normalisation in the International Criminal Court (ICC). The purpose of this analysis is neither to parse what the law is and what it should be—nor what the law does versus what it promises—, but rather to show how and why individual criminal responsibility in the absence of State intervention demonstrates a globalising political power that is conjoined to a universalising legal glory. A crisis is a liminal situation, which by its ambiguity enables that process of power being linked to glory.

The urgent demand for improvement in food production for a growing world population necessitates, inter alia, a mere intensive exploration and exploitation of the living resources of the oceans. This higher level of exploitation can be realized by an increase in effort and by the development of new techniques for maritime fishing. However, at the same time it has become apparent that the living resources of the oceans are not inexhaustible. In many areas of the seas the dangers of overfishing have been amply demonstrated. This makes effective regulation of maritime fishing operations a matter of increasing urgency.

The signature of the Treaty of Versailles in 1919 marked the birth of the International Labour Organisation (ILO); the ILO Constitution formed Chapter XIII of the Treaty.

Theories of International Relations take various positions regarding the role of international law in international politics. This article identifies four different perspectives on that role by making two distinctions: first, between approaches that assume that states act on the basis of a cost-benefit analysis and approaches that assume that states act upon shared ideas; second, between theories that assume that sovereign states are the only relevant players in international politics and theories that allow for the possibility that domestic and transnational players may affect international politics as well. Subsequently, the article investigates the choices made by France, Italy, the Netherlands, the United Kingdom and the United States prior to the 2003 war against Iraq. The four perspectives on the role of international law provide different interpretations of the weight these states attached to international law when considering the use of violence against Iraq.

The rule of law has emerged both on the domestic and international levels as a promise of longstanding democracy, economic development and peace. On both levels, the rule of law is often associated with the longstanding character of institutions and the predictability of rules, meaning that ‘citizens are entitled to laws that are neither murky nor uncertain’. However, does this always mean in practice that the rule of law can only be concretized by laws and legal institutions that last forever? More specifically in the international context, can we guarantee the consolidation of the international rule of law through the coexistence of both permanent and temporary institutions and instruments? In this chapter, I analyse the meaning of the rule of law at the domestic and international levels and discuss its complex relationship with time. I argue that the past, present and future of the rule of law can be, in some cases, united by the use of temporary institutions such as international criminal tribunals or truth commissions, rules and measures. Temporariness can be essential to react swiftly to humanitarian crises, provide transitory justice, gradually concretize the rule of law in fragile democracies, and adapt legal orders to evolving economic and political circumstances.

The scope of application of Articles 85 and 86 of the EEC Treaty is not limited to undertakings which have been established within the Community. Undertakings which have been established outside the Community and which restrain competition inside the Common Market can come within the scope of application of the EEC competition law. In a growing Number of cases, the EuropeanCommission and the Court of Justice of the EEC have applied the Articles 85 and 86 to undertakings which had their seats in third countries.

Commanders are the critical path enabling the formation and employment of any fighting organization. By extension, their units are most militarily effective where they are governed by adequate control mechanisms. The classic doctrine of command responsibility that imputes the criminality of subordinates onto their leaders is founded on the legal premise that commanders are responsible for establishing affirmative controls over their subordinates to regulate their conduct. The commander is thereby criminally culpable for failing to create a climate of compliance with the laws and customs of war. The obligation of commanders to control the conduct of their subordinates, or to take action to ameliorate violations when they do occur, applies to both formalized regular military organizations and the loosely structured non-state entities that are common in modern conflicts. Current legal tests for evaluating such ‘effective control’ inaccurately reflect modern operational reality by narrowly focusing on the particular circumstances of the criminal act and the precise relationship between the perpetrators and the superior at the moment of the offense. However, courts have developed and applied a series of tests for evaluating ‘effective control’ that in practice become formulaic and limiting. This trend is exacerbated when applied to warlords or non-state actors in non-hierarchical organizations.

Command responsibility has deep historical roots that transcend culture and geography, indicating a timeless consensus that commanders bear personal and professional responsibility for the acts of their subordinates regardless of the context in which they occur. International law subsequently developed to place a heightened responsibility on commanders who field a fighting organization and control the application of violence by their subordinates. Without the proper internal enforcement of the laws and customs of warfare, the commander becomes liable to external criminal enforcement, directed towards both the subordinates and the commander. Prosecutorial trends toward charging joint criminal enterprises and other new theories of individual responsibility fail to understand the essence of the criminality at issue for all fighting organizations – that it is the fielding of the fighting organization without the proper safeguards that in many cases is the causal factor for mass atrocities. Is the law presently configured such that a rebel warlord, a terrorist leader or an outsourced intelligence operator may evade superior responsibility simply because of the unorthodox structure of the fighting organization or the disaggregated orchestration of violence?

If the theory of effective control is not reconceived, the answer will be yes, and increasingly so. It is perhaps inevitable that the changing face of warfare requires a modernized conception of effective control. The concept of effective control should be reconceptualized by jurists to extend its present applications by including an imputed responsibility to any commander or non-state actor assuming that role who organizes a collective entity with the intent of conducting hostilities and thereafter fails to create a climate of compliance with the laws and customs of war. This approach will permit the extension of liability to commanders who organize cellular units that operate on the basis of primary loyalty to a local leader and with little/no tactical control by the hierarchy, such as the tactics seen in Iraq, Afghanistan, and a number of modern non-international armed conflicts.

Jurists should analyze superior responsibility cases with full cognizance of modern command and control theory in order to sustain its viability as a practical prosecutorial tool to regulate the crimes committed by loosely knit groups and non-state actors conducting atrocities in chaotic circumstances. A reconceived theory of effective control would retain the current indicia developed by jurists, which are most often applicable to state actors and formalized military hierarchies. To be clear, the current jurisprudence may well support liability in many cases, but the Composite Theory proposed herein would make localized findings of effective control one aspect of the larger judicial inquiry. A Composite Theory of Responsibility would revitalize and modernize the doctrine of superior responsibility and avoid impunity for those perpetrators clever or lucky enough to exploit the lacunae in current case law.

From the outset, it is important to establish the meaning of “cabotage”, though, as so often happens, different meanings are possible. To recall what the German delegate to the General Conference on Communication and Transit, held in Barcelona in 1921, rightly observed in this connection: “In international law, by ‘cabotage’ is understood the transport of goods or passengers from one port in a country to another port in the same country. According to European international law ‘petit cabotage’ is spoken of when it is a question of ports situated on the same sea, and ‘grand cabotage’ when the ports are situated on different seas. Maritime transport from Bordeaux to Marseille is ‘grand cabotage’, from Bordeaux to Nantes or to Le Havre is ‘petit cabotage’. Consequently, in European international law, the word ‘cabotage’ is only applied to maritime navigation …”. … The cabotage question with which we are dealing here is quite different. It is not cabotage properly so called, and I am glad that in the Draft Convention we do not speak of ‘cabotage’, but of ‘local transport’…

1. Part One: International Law in General

2. Part Two: Sources of International Law

3. Part Three: Subjects of International Law

4. Part Four: The Position of the Individual in International Law

5. Part Five: Organs of the State

6. Part Six: The Law of Treaties

7. Part Seven: Personal Jurisdiction of the State

8. Part Eight: State Territory and Territorial Jurisdiction

9. Part Nine: Seas, Waterways

10. Part Ten: The Air Space, Outer Space

11. Part Eleven: Responsibility

12. Part Twelve: Pacific Settlement of Disputes

13. Part Thirteen: Coercion and Use of Force Short of War

14. Part Fourteen: Armed Conflicts (War)

15. Part Fifteen: Neutrality, Non-Belligerency

16. Part Sixteen: Legal Aspects of International Relations in Various Matters

This study deals with the question whether there is, to-day, an international right of innocent passage of warships through territorial waters in time of peace. With this in view it will first be examined which links there are with other fields of international law; then will follow a more comprehensive review of the fundamentals of the problem.