Introduction, Ch.1 Foundation of international law, The Nature of International Law
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Sir Robert Jennings QC, Sir Arthur Watts KCMG QC
- Erga omnes obligations — Peremptory norms / ius cogens — Customary international law — Peace keeping — Paramilitary groups — Subjects of international law
The Nature of International Law
H Lauterpacht, The Function of Law, pp 399–438; Hag R, 62 (1937), iv, pp 100–28; and Collected Papers, vol 1 (1970), pp 9–50 Praag, §§ 1–3 Krabbe, The Modern Idea of the State (1917) (Eng trans, 1921), pp 233–62 Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (1920), pp 102–274; Allgemeine Staatslehre (1925), pp 119–32; Law and Peace in International Relations (1942), pp 3–82; General Theory of Law and State (1945), pp 328–54; and Principles of International Law (1952), pp 3–44, 196–201 Verdross, pp 1–42 and 92–6; Die Einheit des rechtlichen Weltbildes (1923), pp 36–135, and in ZI, 29 (1921), pp 65–91 Spiropoulos, Théorie générale du droit international (1930), pp 1–83 Walz, Das Wesen des Völkerrechts und Kritik der Völkerrechtsleugner (1930) Blühdorn, Einführung in das angewandte Völkerrecht (1934), pp 1–106 Schiffer, Die Lehre vom Primat des Völkerrechts in der neueren Literatur (1937) Ziccardi, La costituzione dell’ ordinamento internazionale (1943), pp 19–157 Brierley, The Outlook for International Law (1944); and The Basis of Obligation in International Law (1958) Sperduti, La fonte suprema dell’ ordinamento internazionale (1946) Constantantopoulos, Verbindlichkeit und Konstruktion des positiven Völkerrechts (1948) Giuliano, La communità internazionale e il diritto (1950) Ago, Scienza giuridica e il diritto internazionale (1950) Corbett, Law and Society in International Relations (1951), pp 36–53 Scott, RI (Paris), 1 (1927), pp 637–57 Foulke, Col Law Rev, 19 (1919), pp 429–66 Salvioli, Rivista, 3rd series, i (1921–22), pp 20–80 Cavaglieri, ibid, pp 289–314, 479–506 Brierly, Hag R, 23 (1928), iii, pp 467–549; and 58 (1936), iv, pp 5–34 Bruns, ZöV, 1 (1929), pp 1–56 Spiropoulos, RI (Paris), 3 (1929), pp 97–130 Heydte, ZöR, 11 (1931), pp 526–46 Redslob, RI, 3rd series, 14 (1933), pp 488–513, 615–33 Salvioli, Hag R, 46 (1933), iv, pp 5–17 Schindler, ibid, pp 233–322 Strupp, ibid, 47 (1934), i, pp 263–300 Rundstein, RI, 3rd series, 12 (1931), pp 491–512, 669–89 Le Fur, Hag R, 54 (1935), iv, pp 5–193 Corbett, University of Toronto Law Journal, 1 (1) (1935), pp 3–16 Jones, BY, 16 (1935), pp 5–19 Wengler, ZöR, 16 (1936), pp 322–92 Goodhart, Grotius Society, 22 (1936), pp 31–44 Scrimali, ZöR, 21 (1941), pp 190–216 Hurst, Grotius Society, 30 (1944), pp 119–27 Glanville Williams, BY, 22 (1945), pp 146–63 Kelsen, OZöR, 1 (1946), pp 20–83 Paradisi, Comunicazioni e studi, 3 (1950), pp 55–78 Campbell, Grotius Society, 35 (1950), pp 113–32 Quadri, Hag R, 80 (1952), i, pp 585–630 Ago, Hag R, 90 (1956), ii, pp 857–94; and AJ, 51 (1957), pp 691–733 Suy, RG, 64 (1960), pp 762–70 Hart, The Concept of Law (1961), ch 10 Schwarzenberger, Power Politics (3rd ed, 1964) Ziccardi, Il diritto internazionale odierno — nozione e commento (1964) Friedmann, An Introduction to World Politics (1968) Deutsch, The Analysis of International Relations (1968) Deutsch, Kelsen and Fried in The Relevance of International Law (eds Deutsch and Hoffman, 1968), pp 57–83, 85–92, 93–132 Friedmann, Hag R, 127 (1969), ii, pp 47–130 de Visscher, Théories et réalities en droit international public (4th ed, 1970) Fitzmaurice, Annuaire: Livre du Centenaire (1973), pp 196–363 Tunkin, Hag (p. 4) R, 147 (1975), iv, pp 1, 9–110 P Reuter, Droit international public (5th ed, 1976) Mosler, Hag R, 140 (1974), iv, pp 17–79; and ZöV, 36 (1976), pp 6–47 Gonidec, Relations internationales (2nd ed, 1977) Braillard, Théories des relations internationales (1977) Wengler, Hag R, 158 (1977), v, pp 9–86 Barile, Hag R, 161 (1978), iii, pp 9, 23–47 Watson, YB of World Affairs, 34 (1980), pp 265–85 Sahovic, Hag R, 199 (1986), iv, pp 171–232 Cassese, International Law in a Divided World (1986), pp 9–125 Carty, The Decay of International Law? (1986) DeLupis, The Concept of International Law (1987) Franck, AJ, 82 (1988), pp 705–59 Allott, Eunomia (1991) See also works cited at § 3, n 9, § 3, n 13 and § 4, n 1.
International law is the body of rules which are legally1 binding on states in their intercourse with each other. These rules are primarily those which govern the relations of states, but states are not the only subjects of international law. International organisations and, to some extent, also individuals may be subjects of rights conferred and duties imposed by international law.2 International law in the meaning of the term as used in modern times began gradually to grow from the second half of the Middle Ages. As a systematised body of rules it owes much to the Dutch jurist Hugo Grotius, whose work, De Jure Belli ac Pácis, Libri iii, appeared in 1625, and became a foundation of later development.3
That part of international law that is binding on all states, as is far the greater part of customary law, may be called universal international law, in contradistinction to particular international law which is binding on two or a few states only.4 General international law is that which is binding upon a great many states. General international law, such as provisions of certain treaties which are widely, but not universally, binding and which establish rules appropriate for universal application, has a tendency to become universal international law.5
One can also distinguish between those rules of international law which, even (p. 5) though they may be of universal application, do not in any particular situation give rise to rights and obligations erga omnes, and those which do. Thus, although all states are under certain obligations as regards the treatment of aliens, those obligations (generally speaking) can only be invoked by the state whose nationality the alien possesses: on the other hand, obligations deriving from the outlawing of acts of aggression, and of genocide, and from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination, are such that all states have an interest in the protection of the rights involved.6 Rights and obligations erga omnes may even be created by the actions of a limited number of states.7 There is, however, no agreed enumeration of rights and obligations erga omnes, and the law in this area is still developing, as it is in the connected matter of a state’s ability, by analogy with the actio popularis (or actio communis) known to some national legal systems, to institute proceedings to vindicate an interest as a member of the international community as distinct from an interest vested more particularly in itself. The International Court of Justice has held that proceedings in defence of legal rights or interests require those rights or interests to be clearly vested in those who claim them (even though they need not necessarily have a material or tangible object damage to which would directly harm the claimant state),8 and that the actio popularis ‘is not known to international law as it stands at present’.9 Although the notion of actio popularis is in some respects associated with that of rights and obligations erga omnes, the two are distinct and, to the extent that they are accepted, each may exist independently of the other.
International law is sometimes referred to as ‘public international law’ to References(p. 6) distinguish it from private international law.10 Whereas the former governs the relations of states and other subjects of international law amongst themselves, the latter consists of the rules developed by states as part of their domestic law to resolve the problems which, in cases between private persons which involve a foreign element, arise over whether the court has jurisdiction and over the choice of the applicable law:11 in other terms, public international law arises from the juxtaposition of states, private international law from the juxtaposition of legal References(p. 7) systems. Although the rules of private international law are part of the internal law of the state concerned, they may also have the character of public international law where they are embodied in treaties.12 Where this happens the failure of a state party to the treaty to observe the rule of private international law prescribed in it will lay it open to proceedings for breach of an international obligation owed to another party.13 Even where the rules of private international law cannot themselves be considered as rules of public international law, their application by a state as part of its internal law may directly involve the rights and obligations of the state as a matter of public international law, for example where the matter concerns the property of aliens14 or the extent of the state’s jurisdiction.15
States may, by and within the limits of agreement between themselves, vary or even dispense altogether with most rules of international law. There are, however, a few rules from which no derogation is permissible. The latter — rules of ius cogens, or peremptory norms of general international law — have been defined in Article 53 of the Vienna Convention on the Law of Treaties 1969 (and for the purpose of that Convention) as norms ‘accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’;1 and Article 64 contemplates the emergence of new rules of ius cogens in the future.
Such a category of rules of ius cogens is a comparatively recent development and there is no general agreement as to which rules have this character.2 The References(p. 8) International Law Commission regarded the law of the Charter concerning the prohibition of the use of force as a conspicuous example of such a rule.3 Although the Commission refrained from giving in its draft Articles on the Law of Treaties any examples of rules of ius cogens, it did record that in this context mention had additionally been made of the prohibition of criminal acts under international law, and of acts such as trade in slaves, piracy or genocide, in the suppression of which every state is called upon to cooperate; the observance of human rights, the equality of states and the principle of self-determination.4 The full content of the category of ius cogens remains to be worked out in the practice of states and in the jurisprudence of international tribunals. In this connection it is important that Article 66 of the Vienna Convention on the Law of Treaties provides for the judicial settlement of disputes concerning the application and interpretation of Articles 53 and 64.
The operation and effect of rules of ius cogens in areas other than that of treaties are similarly unclear. Presumably no act done contrary to such a rule can be legitimated by means of consent,5 acquiescence or recognition; nor is a protest necessary to preserve rights affected by such an act; nor can such an act be justified as a reprisal against a prior illegal act; nor can a rule of customary international law which conflicts with a rule of ius cogens continue to exist or subsequently be created (unless it has the character of ius cogens, a possibility which raises questions — to which no firm answer can yet be given — of the relationship between rules of ius cogens, and of the legitimacy of an act done in reliance on one rule of ius cogens but resulting in a violation of another such rule).
Almost from the beginning of the science of international law the question has been discussed whether it is law properly so-called. Hobbes1 and Pufendorf2 had already answered the question in the References(p. 9) negative. During the 19th century Austin3 and his followers took up the same attitude. In large measure the problem is one of definition, and different definitions of what constitutes ‘law’ can produce different answers to the question whether any particular body of rules may properly be regarded as ‘law’.4 Definitions drawn up primarily in terms of the internal (or municipal)5 law of states may be unnecessarily restrictive when applied to rules obtaining in other kinds of community. Although the characteristics of municipal law provide a valid standard against which to measure the quality as law of the rules in some other, and particularly the international, community, a body of rules may be law in the strict sense of the term even though it may not at some stages of its development possess all the characteristics of municipal law. Divergence from the usual characteristics of municipal law has nevertheless often been regarded as expressive of the weakness of a body of rules qua law.6
In earlier editions of this treatise7 law was defined as a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power.8 The three requirements of this definition are satisfied by international law, to a greater or lesser extent. The states of the world do together constitute a body bound together through common interests which create extensive intercourse between them, and differences in culture, economic structure, or political system, do not affect as such the existence of an international community as one of the basic factors of international law.9 Rules for the (p. 10) conduct of the members of that community exist, and have existed for hundreds of years. Equally, there exists a common consent of the community of states that the rules of international conduct shall be enforced by external power, although in the absence of a central authority for this purpose states have sometimes to take the law into their own hands by such means as self-help10 and intervention11 — although the outlawing of resort to force, and the hesitant steps being taken towards international enforcement action, may indicate less reliance on self-help as the normal means for the enforcement of international law. The Security Council’s primary12 responsibility for and powers in relation to the maintenance of international peace and security, which extend to enforcement action including mandatory measures of various kinds, or the establishment of peacekeeping forces operating with the consent of the state in which the force exercises its functions, offer possibilities of future development towards an effective system of sanctions.13 They also serve to demonstrate that enforcement of the References(p. 11) law through an agency which is both external to the state in default and representative of the international community has the authority of a recognised principle of international law. All the same, it must be recognised that deficiencies in the means at present available for the enforcement of international law including in particular the absence of truly compulsory arrangements for the judicial settlement of disputes14 — make it, by comparison with municipal law and the means available for its enforcement, certainly the weaker of the two in that respect.
While some deficiencies in international law make it as yet undeniably an imperfect legal order, developments over the past half century in particular indicate considerable progress towards their amelioration. An emerging system of sanctions for the enforcement of international law is discernible,15 while recourse to so-called law-making treaties,16 and certain aspects of the activities of international organisations,17 may be pointers in the direction of an emergent References(p. 12) legislative process or at least an international analogue thereof.18 There are also certain other indications of a growing maturity in the international legal order. These include the recognition that certain rules have the character of ius cogens, which reduces the area for the operation of purely consensual rules,19 and establishes that within the general body of rules of international law there exists superior legal rules, with which rules of a ‘lower’ order must be compatible. Article 103 of the United Nations Charter may also be regarded as establishing, for members of the United Nations at least, the ‘superior’ nature of the obligations under the Charter.20
There is similarly increasing acceptance that the rules of international law are the foundation upon which the rights of states rest, and no longer merely limitations upon states’ rights which, in the absence of a rule of law to the contrary, are unlimited.21 Although there are extensive areas in which international law accords to states a large degree of freedom of action (for example, in matters of domestic jurisdiction), it is important that that freedom is derived from a legal right and not from an assertion of unlimited will, and is subject ultimately to regulation within the legal framework of the international community.22 In the Military and Paramilitary Activities case the International Court of Justice upheld the essential justiciability of even those disputes raising issues of the use of force and collective self-defence.23
Furthermore international law may now properly be regarded as a complete system.24 By this is meant not that there is always a clear and specific legal rule References(p. 13) readily applicable to every international situation, but that every international situation is capable of being determined as a matter of law,25 either by the application of specific legal rules where they already exist, or by the application of legal rules derived, by the use of known legal techniques, from other legal rules or principles. It is thus not permissible for an international tribunal to pronounce a non liquet,26 ie to invoke the absence of clear legal rules applicable to a dispute as a reason for declining to give judgment (unless the compromis submitting the dispute to the tribunal in some way limits the power of the tribunal to apply international law as a whole). The International Court takes judicial notice of international law.27
Theoretical arguments about the legal nature of international law, insofar as some of them seek to deny the legally binding character of international law, take on an increasingly unrealistic appearance, since in practice international law is constantly recognised as law by the governments of states who regard their freedom of action as legally constrained by international law.1 States not only recognise the rules of international law as legally binding in innumerable treaties, but affirm constantly the fact that there is a law between themselves.2 They further recognise this law by requiring their officials, courts, and nationals, to act conformably with the duties imposed upon the state by international law. The legal character of international law is acknowledged in the 1970 Declaration on Principles of International Law References(p. 14) concerning Friendly Relations and Cooperation among States:3 the seventh Principle includes the duty of every state to fulfil in good faith its obligations under the generally recognised principles and rules of international law.
It is not possible to say why international law as a whole is binding upon the international community without entering the realm of non-legal considerations. It is, however, in accord with practical realities to see the basis of international law in the existence of an international community the common consent of whose members is that there shall be a body of rules of law — international law — to govern their conduct as members of that community. In this sense ‘common consent’ could be said to be the basis of international law as a legal system.1 That common consent is reinforced by there being an increasing number of matters (such as international civil aviation, the use of international rivers, and questions of pollution) for which some rules are a real necessity and which can only be satisfactorily regulated by internationally valid rules.
This ‘common consent’ cannot mean, of course, that all states must at all times expressly consent to every part of the body of rules constituting international law, for such common consent could never in practice be established. The membership of the international community is constantly changing; and the attitude of individual members who may come and go must be seen in the context of that of the international community as a whole, whilst dissent from a particular rule is not to be taken as withdrawal of consent to the system as a whole.
The common consent that is meant is thus not consent to particular rules but to the express or tacit consent of states to the body of rules comprising international law as a whole at any particular time. Membership of the international community carries with it the duty to submit to the existing body of such rules, and the right to contribute to their modification or development in accordance with the prevailing rules for such processes. Thus new states which come into existence and are admitted into the international community thereupon become subject to the body of rules for international conduct in force at the time of their admittance. No single state can say on its admittance into the community of nations that it desires to be subjected to such and such rules of international law, and not to others.2 The admittance includes the duty to submit to all the rules in References(p. 15) force, with the sole exception of those which are binding upon such states only as are parties to a treaty creating the rules concerned.
Similarly, no state can at some time or another declare that it will in future no longer submit to a certain recognised rule of international law. The body of the rules of this law can be altered by the generally agreed procedures only, not by a unilateral declaration on the part of one state. This applies to all rules other than those created by treaties which admit of denunciation or withdrawal.
Different from the duty to submit to existing rules, however, is the liberty of all states within the international community — newly admitted as well as old-established — to contribute to the evolution of those rules. In this way, while a single state’s withdrawal of consent to a putative new rule will not in itself affect the legal character of the rule, it may over a period and taken together with a similar attitude on the part of other states lead to a change in the law. Many states which have achieved independence, particularly in the last quarter of a century, have questioned the extent to which certain parts of the hitherto accepted body of customary rules are properly to be regarded as true rules of a universal international law: the influence of these states on the evolution of international law is likely to be significant.3 They have for example made a notable contribution to the demand for a codification of the principles of friendly relations and cooperation among states,4 and for the establishment of a new international economic order,5 and their new-found (or reacquired)6 independence has produced an emphasis on the sovereignty of states which is affecting many aspects of international law. The emergence of ‘consensus’ as an appropriate procedure for the adoption of many decisions at international conferences7 and in such bodies (p. 16) as the United Nations General Assembly has mitigated the consequences which would otherwise flow from rigid requirements of consent in an international community now numbering over 150 states, and has permitted the continued development of international law in accordance with the general consent of the international community.
States are the principal subjects of international law.1 This means that international law is primarily a law for the international conduct of states, and not of their citizens. As a rule, the subjects of the rights and duties arising from international law are states solely and exclusively, and international law does not normally impose duties or confer rights directly upon an individual human being, such as an alien or an ambassador. Rights which might necessarily have to be granted to an individual human being according to international law are not, as a rule, international rights, but rights granted by a state’s internal law in accordance with a duty imposed upon the state concerned by international law. Likewise, duties which might necessarily have to be imposed upon individual human beings according to international law are, on the traditional view, not international duties, but duties imposed by a state’s internal law in accordance with a right granted to, or a duty imposed upon, the state concerned by international law.2
States are primarily, but not exclusively,1 the subjects of international law. To the extent that bodies other than states directly possess some rights, powers and duties in international law they can be regarded as subjects of international law, possessing international personality. It is a matter for inquiry in each case whether — and if so, what — rights, powers and duties in international law are conferred upon any particular body.
States may treat individuals and other persons as endowed directly with international rights and duties and constitute them to that extent subjects of international law.2 Although individuals cannot appear as parties before the References(p. 17) International Court of Justice,3 states may confer upon them the right of direct access to international tribunals.4 As the Permanent Court of International Justice recognised in the Advisory Opinion concerning the Jurisdiction of the Courts of Danzig, states may expressly grant to individuals direct rights by treaty; such rights may validly exist and be enforceable without having been previously incorporated in municipal law.5
A notable example of the direct applicability to individuals of the provisions of a treaty is afforded by the operation of the European Economic Community.6 Many treaty provisions regarding human rights and fundamental freedoms also apply directly to individuals, who may in certain circumstances institute proceedings before an international tribunal to secure the observation to such rights, even as against the state of which they are nationals.7 Moreover, it is an established principle of customary international law that individual members of armed forces of the belligerents — as well as individuals generally — are directly subject to the law of war and may be punished for violating its rules.8 Similarly, offences against the peace and security of mankind are offences for which the responsible individuals are punishable.9 The doctrine adopted in many municipal systems to the effect that international law is part of the law of the land is upon analysis yet another factor showing that international law may act per se upon individuals, who become, to that extent, subjects of international law.10 Finally, even in respect of those rules of international law which regulate the conduct of states we must not forget that the conduct actually regulated is the conduct of human beings acting as the organ of the state. As Westlake said, ‘The duties and rights of States are only the duties and rights of the men who compose them.’11
Not only individuals but also certain territorial or political units other than states may, to a limited extent, be directly the subject of rights and duties under international law. This applies, for example, to the rights and duties of political communities recognised as belligerents and insurgents.12 Prior to 1929 the Holy See, though not at that time a state, was a subject of international rights and duties.13 It must also be noted that international practice has gradually recognised a measure of international legal personality of territorial units which are References(p. 18) not states but which nevertheless have been admitted to participation in their own name in important international organisations of states such as the Universal Postal Union and the World Health Organisation.14
The possibility that inter-governmental organisations may possess international legal personality is now accepted.15 In the case concerning Reparation for Injuries Suffered in the Service of the United Nations the International Court of Justice expressly rejected the view that only states can be subjects of international law. In affirming the international personality of the United Nations16 as being indispensable for the fulfilment of the purpose for which it was created, the Court pointed out that ‘throughout its history the development of international law has been influenced by the requirements of international life’ and that ‘the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States’.17 Such new subjects of international law, the Court explained, need not necessarily be states or possess the rights and obligations of statehood. For ‘the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community’.18 Furthermore, as the International Court stated in a later References(p. 19) case,19 an international organisation is not to be considered as some form of super-state: ‘International organisations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’.
The constitutions of many international organisations contain an express provision intended to establish for the organisation a legal personality in international law separate from that of the member states. The constitution of an organisation often also confers on it specific international capacities which necessarily imply a measure of international personality. Furthermore, the states setting up an organisation may confer upon it functions which for their fulfilment necessitate the possession of certain international legal capacities and thus, to that extent, of international personality.20 Whether, and to what extent, an organisation possesses international personality distinct from that of the states members of it, is a question to be answered in the light of its particular circumstances.21 The international personality of international organisations is References(p. 20) manifest in various areas of international law, such as the law of treaties,22 international claims,23 privileges and immunities,24 and maritime flags.25 Although international organisations may not be a party in cases before the International Court of Justice, certain of them are entitled to seek advisory opinions from the Court.26
Of particular interest is the development of the international personality of the European Communities. They, like many international organisations, have an international personality distinct from that of the member states. The extent of that personality is, however, not just a matter of having certain necessary powers and capacities alongside the full range of international powers and capacities still possessed by the member states, but extends also to matters for which the Community has acquired competence through action within the Community and for which the member states have accordingly, by Community law, ceased to have international competence, having in effect transferred their powers in relation to those matters to the Community.27
References(p. 21) Some organisations, though international in scope and organisation, are not composed of states or governments and operate under private law rather than international law. Such non-governmental organisations28 (often referred to as NGOs) vary greatly in their significance and standing. Some have been accorded certain very limited rights on the international plane, such as the right to attend as observers meetings of inter-governmental organisations29 or international conferences.30 Under Article 71 of the United Nations Charter the Economic and Social Council may ‘make suitable arrangements for consultation with non-governmental organisations which are concerned with matters within its competence’.31 A European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations was concluded on 24 April 1986.32
The difficulty of drawing sharp lines between different categories of organisations References(p. 22) is illustrated by a further intermediate class between inter-governmental organisations and purely private international organisations.33 This comprises companies and consortia which, while their structure is essentially that of private law organisations, are partly or wholly composed of governmental agencies: they may also, to a limited degree, have conferred on them certain attributes of international personality.34
9 The preamble to the Draft Declaration on Rights and Duties of States, adopted by the General Assembly of the UN in 1949 (Res 375 (IV)), affirms that ‘the States of the world form a community governed by international law’.
For a discussion of international law and the structure of the international community see, in addition to many of the works cited in the bibliography preceding § 17, Therre, La Psychologie individuelle et collective dans l’efficacité du droit international public (1946); Schwarzenberger, YB of World Affairs (1947), pp 159–77, and International Law and Order (1971), especially chs 2, 3 and 5; McDougal, Hag R, 82 (1953), i, pp 137–258; Stone, Legal Controls of International Conflict (1954), and Hag R, 89 (1956), i, pp 65–175; Corbett, Hag R, 85 (1954), i, pp 473–540, Morals, Law and Power in International Relations (1956), and From International Law to World Law (1969); Fitzmaurice, MLR, 19 (1956), pp 1–13; Jessup, The Use of International Law (1959), ch 1; Röling, International Law in an Expanded World (1960); Hart, The Concept of Law (1961), ch 10; Kaplan and Katzenbach, The Political Foundations of International Law (1961); Manning, The Nature of International Society (1962); Quadri, Hag R, 113 (1964), ii, pp 245–318; Friedmann, The Changing Structure of International Law (1964), International Law in a Changing Society (1971) and De l’Éfficacité des institutions internationales (1970); Tunkin, Droit international public: problèmes théoriques (1965), and Hag R, 147 (1975), iv, pp 19–206; Coplin, The Functions of International Law (1966); Landheer, On the Sociology of International Law and International Society (1967); Rabl, Die Völkerrechtsgrundlagen der modernen Friedensordnung (2 vols, 1967, 1969); Scheinman and Wilkinson (eds), International Law and Political Crisis (1968); Jenks, A New World of Law? (1969), pp 219–67; Falk, Legal Order in a Violent World (1970), The Status of Law in International Society (1970), and (as ed, with Black) The Future of the International Legal Order (vol I, 1969); Monaco, Hag R, 125 (1968), iii, pp 99–130; Burton, Systems, States, Diplomacy and Rules (1968); Bozeman, The Future of Law in a Multicultural World (1971); Deutsch and Hoffman (eds), The Relevance of International Law (1971); Pinto, Le Droit des relations internationales (1972); Gottlieb in The Future of the International Legal Order, vol 4 (eds Falk and Black, 1972), pp 331–83; P de Visscher, Hag R, 136 (1972), ii, pp 7–43; Fitzmaurice, Annuaire: Livre du Centenaire (1973), pp 196–329; Mosler, Hag R, 140 (1974), iv, pp 17–44, and in ZöV, 36 (1976), pp 6–49; Luard, Types of International Society (1976); Parkinson, The Philosophy of International Relations (1977); Onuf, AJ, 73 (1979), pp 244–66; De Vree, Neth IL Rev, 26 (1979), pp 46–59; Reuter and Combacau, Institutions et relations internationales (1980); Barberis, Hag R, 179 (1983), i, pp 170–80; Boyle, World Politics and International Law (1985); Movchan, in International Law and the International System (ed Butler, 1987), pp 123–34; van Dijk, Germ YBIL, 30 (1987), pp 9–35; Tesón, Yale JIL, 15 (1990), pp 84–120. See also works cited at n 13, and § 4, n 1. For references to earlier works see 8th ed of this vol, p 11, n 2.
13 As to the sanctions of international law, particularly those under the UN Charter, see Husserl in University of Chicago Law Review, 12 (1945), pp 115–39; Hsu Mo, Grotius Society, 35 (1949), pp 4–15; Cavaré, Hag R, 80 (1952), i, pp 195–288; Fitzmaurice, MLR, 19 (1956), pp 1–13, and Annuaire: Livre du Centenaire (1973), pp 297–304; Kunz, AJ, 54 (1960), pp 324–47; Barkun, Law Without Sanctions (1968); Monaco, Hag R, 125 (1968), iii, pp 313–32; P de Visscher, ibid, 136 (1972), ii, pp 137–202; Fawcett, Grotian Society Papers (ed Alexandrowicz, 1970), pp 83–9; Leben, Les Sanctions privatives de droit ou de qualité dans les organisations internationales spécialisées (1979); Ferencz, Enforcing International Law (2 vols, 1983); Fukatsu in The Structure and Process of International Law (eds MacDonald and Johnston, 1983), pp 1187–205; Osieke, Neth ILR, 31 (1984), pp 183–98; Cassese, International Law in a Divided World (1986), pp 215–50. See also works cited at n 9, and §; 4, n 1.
The functions of the Security Council and of the United Nations generally as an agency for settling disputes and for maintaining international peace and security and the relevant provisions of the Charter are discussed in detail in pt I of vol II of this work (7th ed), §§ 25b–ge. See also Bowett, United Nations Forces (1964); Higgins, United Nations Peacekeeping 1946–67 (3 vols, 1969, 1970, 1980); Gutteridge, The United Nations in a Changing World (1969), ch III; Karaosmanoglu, Les Actions militaires coercitives et non-coercitives des Nations Unies (1970); Manin, L’Organisation des Nations Unies et le maintien de la paix (1971); Pfeifenberger, Die Vereinten Nationen: Ihre politischen Organe in Sicherheitsfragen (1971); Saksena, The United Nations and Collective Security (1974); Arntz, Der Begriff der Friedensbedrohung, in Satzung und Praxis der Vereinten Nationen (1975); Reuter and Combacau, Institutions et relations internationales (1980), ch VIII.
On the enforcement of international judicial decisions see Art 94 of the UN Charter; Jenks, The Prospect of International Adjudication (1964), pp 663–726; Anand, Studies in International Adjudication (1964), pp 250–86; Reismann, AJ, 63 (1969), pp 4–27; Oellers-Frahm, ZöV, 36 (1976), pp 654–79.
1 See Henkin, Hag R, 114 (1965), i, pp 167–276, and How Nations Behave: Law and Foreign Policy (2nd ed, 1979); Fenwick, Foreign Policy and International Law (1968); Tunkin, Theory of International Law (1974), pp 273–302; Lachs, Hag R, 169 (1980), iv, pp 253–61; Brownlie, BY, 52 (1981), pp 1–8; Perkins, The Prudent Peace: Law as Foreign Policy (1981); Hoyt, Law and Force in American Foreign Policy (1985); Reisman and Willard (eds), International Incidents (1988). See also the following five-volume series examining the impact of international law on international crises: Bowie, Suez 1956 (1974); Ehrlich, Cyprus 1958–67 (1974); Chayes, The Cuban Missile Crisis (1974); Abi-Saab, The United Nations Operation in the Congo 1960–64 (1978); Fisher, Points of Choice (1978). On the continued significance of international law even in times of stress see Jenks, Law, Freedom and Welfare (1963), pp 50–70. See also works cited at § 3, nn 9 and 13.
1 In contradistinction to mere usages (ie practices which, although perhaps widely adopted, are not adopted with any sense of their being legally binding), to morality (see § 17), and sometimes to international comity (see § 17).
2 See § 7.
3 For the history of international law see the 8th ed of this vol §§ 37b–59. In addition to the works there cited, see (a) as to the history of international law in general, Nussbaum, A Concise History of the Law of Nations (rev ed, 1954); Herrero, Historia del Derecho de Gentes (1954); Sereni, Diritto internazionale, pt I (1956); Reibstein, Eine Gesichte seiner Ideen in Lehre und Praxis, (vol i, 1957–58) and (vol ii, 1963); Strupp, Wört, vol 3, pp 680–760; (b) as to the development of international law before the time of Grotius, Simmonds, Grotius Society, 43 (1957), pp 143–57; Guggenheim in Symbolae Verzijl (1958), pp 177–89; Ehrlich, Hag R, 105 (1962), i, pp 177–259; Verosta, Hag R, 113 (1964), iii, pp 491–613; van der Molen, Alberico Gentili and the Development of International Law (2nd rev ed, 1968); Connelly, YB of World Affairs (1978), pp 303–19; Ago, BY, 53 (1982), pp 213–32; (c) as to the development of international law by Grotius and in the 17th and 18th centuries, Herrero, Hag R, 81 (1952), ii, pp 313–46; Alexandrowicz, Introduction to the History of the Law of Nations in the East Indies (1967); Dumbauld, The Life and Legal Writings of Hugo Grotius (1969); Ago, Hag R, 182 (1983), iv, pp 375–98; Schiedermair, ibid, pp 399–416; Janis, AJ, 78 (1984), pp 405–18; Dufour, Haggenmacher and Toman, Grotius et l’ordre juridique international (1985).
4 See § 23 as to the scope of the application of the rules of international law.
5 See § 583, n 3. See Rie, Grotius Society, 36 (1950), pp 209–28, as to the Congress of Vienna and the origins of the notion of ‘public law of Europe’.
3 See also §§ 11, n 9; § 16 (as to ‘law-making’ powers of international organisations); and § 32 (as to the revision of international law). In so far as the expression ‘law-making treaties’ is used as synonymous with ‘international legislation’ it must be remembered that the latter is merely a metaphor. There is as yet no international legislature proper in the international sphere. As to the role, and weaknesses, of treaties as a basis for a legal system and a mechanism for securing change, see Simma in The Structure and Process of International Law (eds MacDonald and Johnston, (1983), pp 485–512.
So-called law-making treaties have been concluded ever since international law came into existence. It was not until the nineteenth century, however, that they came to acquire world-wide importance, beginning with the Final Act of the Vienna Congress 1815. The following 19th century examples may also be mentioned: the Treaties of London of 1831 and 1839 providing for the neutralisation of Belgium (see § 96, n 2); the Declaration of Paris 1856 (see vol II of 7th ed of this work, § 177); the Geneva Convention of 1864 for the amelioration of the conditions of the wounded in armies in the field (see vol II of 7th ed of this work, § 118; and the Final Act of the Hague Peace Conference 1899 (see ibid, § 68 (4)). For a comprehensive list see Rühland, System der völkerrechtlichen Kollektivverträge (1929). See also Hudson’s International Legislation (1931–50), of which nine volumes have been published. The ILC considered dealing with this kind of treaty as subject to certain special considerations, and in its 1962 draft Articles on the Law of Treaties defined a ‘general multilateral treaty’ as ‘a multilateral treaty which concerns general norms of international law or deals with matters of general interest to States as a whole’. For various reasons it dropped this provision from its final draft Articles on the Law of Treaties, as explained in ILC Commentary (Treaties) Art 12: YBILC (1966), ii, pt 2, p 199.
Note also the emphasis sometimes placed on human rights treaties as not being ‘multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States’ but rather treaties whose object is the protection of individuals, even as against the state of their own nationality as well as all other contracting states: see, eg Effect of Reservations Opinion (1982), ILR, 67, pp 559, 568; Restrictions to the Death Penalty (Advisory Opinion OC-3/83) (1983), ILR, 70, pp 449, 466.
6 Barcelona Traction Case (Second Phase), ICJ Rep (1970), p 32. See generally on rights and obligations erga omnes, YBILC (1976), pt 2, p 99; Weil, RG, 86 (1982), pp 30–33; Frowein in Völkerrecht als Rechtsordnung (Festschrift für H Mosler) (eds Bernhardt, Geck, Jaenicke and Steinberger, 1983), pp 241–62; Thirlway, BY, 60 (1989), pp 92–102. See also n 9; and § 146.
Similar questions may arise in relation to some general multilateral treaties, where any party may in some circumstances claim to be injured by a breach of the treaty by any other party, even if that breach does not directly affect the claimant party’s own (including its nationals’) material interests. See §§ 150, at n 17, and 436, n 12, as to human rights treaties. See generally on responsibility arising out of breaches of multilateral treaties, Sachariew, Neth IL Rev, 35 (1988), pp 273–89.
9 ibid, p 47. See also the Dissenting Opinion of Judge De Castro in the Nuclear Tests Case, ICJ Rep (1974), pp 386–7; and Ireland v United Kingdom (1978), ILR, 58, pp 190, 291–2. See generally Schwelb, Israel YB on Human Rights, 2 (1972), pp 46–56; Fitzmaurice, Annuaire: Livre du Centenaire (1973), p 326; Jenks in Ius et Societas (ed Wilner, 1979), pp 151–8; Brownlie, Principles of Public International Law (4th ed, 1990), pp 466–73; Gray, Judicial Remedies in International Law (1987), pp 211–15; Thirlway, BY, 60 (1989), pp 92–102. See also n 6 and § 157 (as to the possibility that state conduct which is categorised as criminal may justify countermeasures by any other state). See also Klass Case (1978), ILR, 58, pp 423, 443, allowing proceedings for breach of the European Convention on Human Rights even though a law had not been implemented against the applicant, so long as he was directly affected by its existence; see also Aumeeruddy-Cziffra v Mauritius (1981), ILR, 62, pp 285, 293.
12 See § 1, n 6; and, with particular reference to human rights, Meron, Human Rights and Humanitarian Norms as Customary Law (1989), pp 188–215.
7 Reparations for Injuries Case, ICJ Rep (1949), p 185; Namibia Case, ICJ Rep (1971), p 56. See also §§ 626–7, as to the extent to which states may by treaty (such as the UN Charter) give rise to obligations applicable also to third states. And see § 583, n 8.
8 See generally on such a status or regime, McNair, Treaties, pp 255–71, 655–64; O’Connell, State Succession in International and Municipal Law (1967), 2, pp 12–22, 231ff; Jennings, Hag R, 121, (1967), ii, p 442; YBILC (1974), ii, pt 1, pp 204–6, paras (30)–(36); Klein, Statusverträge im Völkerrecht (1980); and § 1, n 6, and §§ 626–7.
8 South West Africa Cases (Ethiopia and Liberia v South Africa) (Second Phase), ICJ Rep (1966), at pp 32–3.
10 See an article by Beckett, BY, 7 (1926), pp 73–96, entitled: ‘What is Private International Law?’; Dicey and Morris, ch 1; Cheshire and North, Private International Law (11th ed, 1987, ch 1).
On the relation of public and private international law see Siotto-Pintor, L’Egypte contemporaine, 26 (1935), pp 237–67; Scelle, i, pp 42–9; Rundstein, RI, 3rd series, 17 (1936), pp 314–49; Starke, LQR, 42 (1936), pp 395–401; Niederer, Ann Suisse, 5 (1948), pp 63–82; Kopelmanas in Etudes Georges Scelle (vol ii, 1950), pp 753–804; Stevenson, Col Law Rev, 52 (1952), pp 561–88; Strupp-Schlochauer, Wort (1962), vol II, p 129 (entry by Makarov); Hambro, Hag R, 105 (1962), i, pp 1–66; Wortley, ibid., 85 (1954), i, pp 245–338; Unger, Grotius Society, 43 (1957), pp 87–108; Carswell, ICLQ, 8 (1959), pp 268–88; Fitzmaurice, Hag R, 92 (1957), ii, pp 218–22; Hambro, Varia Juris Gentium: Liber Amicorum for J P A François (1959), pp 132–9; Starke, Studies in International Law (1965), pp 21–30; Collier, Conflict of Laws (1987), pp 359–68.
For a survey of the decisions of the PCIJ on questions of private international law see Hammarskjöld, Revue critique du droit international, 30 (1934), pp 315–44. As to conflict of laws before international tribunals see Lipstein, Grotius Society, 27 (1941), pp 141–81, and 29 (1943), pp 51–84; Hambro, loc cit in Hag R, above.
As to the operation of rules of private international law in the activities of international organisations, see Jenks, The Common Law of Mankind (1958), pp 201–4, and The Proper Law of International Organisations (1962), pp 133–251; Seyersted, Hag R, 122 (1967), iii, pp 433–611; Akehurst, The Law Governing Employment in International Organisations (1967), pp 107–9.
11 To be distinguished from rules of private international law are those agreements reached between the states having as their aim the unification of certain substantive rules of their respective internal legal systems, eg as to trade marks, bills of exchange and carriage of goods and persons by air; these agreements may often include provisions dealing with private international law as well as with unification of private law. Leading examples in this field are the Brussels Convention of 1924 relating to the Carriage of Goods by Sea (amended by the Brussels Protocol of 1968, and again at Hamburg in 1978), widely known as ‘The Hague Rules’ because they were originally drafted in that city; the Warsaw Convention of 1929 on Carriage by Air and the Berne Copyright Convention 1886 (both subsequently amended several times); and various Conventions relating to the international sale of goods concluded at The Hague in 1964, New York in 1974 and Vienna in 1980. Note also the steps taken by the European Economic Community in the matter of harmonisation of laws, especially by means of Directives under Art 100 of the Treaty establishing the EEC; and also various conventions concluded within the Council of Europe.
See generally on unification Matteucci, Hag R, 91 (1957), i, pp 387–441; David, The International Unification of Private Law (1971), being pt V of vol II of The International Encyclopedia of Comparative Law; Zweigert and Kropholler, Sources of International Uniform Law (3 vols, 1971, 1972, 1973); Kropholler, Internationales einheitsrecht (1975); F A Mann, LQR, 99 (1983), pp 376–406. The International Institute for the Unification of Private Law (UNIDROIT), established in 1926, has undertaken extensive work in this field: among its various publications see Unification of Law (1948), Survey 1947–52, Survey 1953–55, and, from 1956 to 1971, an annual UNIDROIT Year Book. See also Revue de droit uniforme, from 1973 and Stanford, in The Effect of Treaties in Domestic Law (eds Jacobs and Roberts, 1987), pp 253–71. See also § 106, n 1, para 4, as to the activities of the UN Conference in International Trade Law (UNCITRAL). The initial uniformity established by a treaty may to some extent be lost as a result of diverse interpretations in the national courts of the various States: see on this aspect of the Warsaw Convention 1929, Mankiewicz, ICLQ, 21 (1972), pp 718–57.
Note also that many multilateral treaties, eg in the field of human rights, are intended to standardise the treatment accorded within the states parties to them, and to that extent involve a measure of unification or harmonisation of law.
1 GA Res 3201 (S-VI). A further special session of the General Assembly, covering much the same ground as the 6th Special Session, was held in 1975; it adopted GA Res 3362 (S-VII) providing for further assistance to the development of developing countries by the promotion of international economic cooperation.
Much of the detailed work to put into effect the principles of the Declaration is carried out in the UN Conference on Trade and Development (UNCTAD) and the UN Industrial Development Organisation (UNIDO), as well as in certain of the specialised agencies and economic commissions. UNIDO was established on 1 January 1967 as an autonomous organisation within the UN to promote industrial development: GA Res 2089 (XX) (1965). In 1979 a constitution for UNIDO was adopted (ILM, 18 (1979), p 667), and UNIDO is now a specialised agency of the UN. Its ‘primary objective’ is ‘the promotion and acceleration of industrial development in the developing countries with a view to assisting in the establishment of a new international economic order. The Organization shall also promote industrial development and co-operation on global, regional and national, as well as on sectoral levels’.
Note also the activities in this field of the Committee for Industrial Development (set up by the Economic and Social Council of the UN in 1960), and the Centre for Industrial Development established in 1961 on the recommendation of the Committee (GA Res 1712 (XVI) (1961)); and the work carried out under the UN Development Programme set up in 1965 and combining the activities previously undertaken within the Expanded Programme of Technical Assistance and the Special Fund (GA Res 2029 (XX) (1965)). A major Conference on International Economic Cooperation was held in Paris from 1975–77, at which representatives of the developed and developing countries participated. As to efforts to draw up a code of conduct to regulate the activities of transnational corporations, seen by some states as contributing to the inequitable balance between developed and developing countries, see § 582, n 18.
In 1978 the UN Commission on International Trade Law (UNCITRAL: on which see David, AFDI, 16 (1970), pp 453–67) decided that it should determine the legal implications of the new international economic order and established a working group to examine the matter: see Report of UNCITRAL to the General Assembly 1978 (Doc A/33/17), and the UN Secretary-General’s general survey on the subject (Doc A/CN 9/171 (1979)). See also Selby, AJ, 74 (1980), pp 958–61; Review of the Multilateral Treaty-Making Process (UN Legislative Series, ST/LEG/SERIES B/21 (1985)), pp 371–82. The principles and norms of international law relating to the new international economic order have been the subject of discussion in the UN General Assembly since 1979 (see Res 34/150), but without so far leading to specific results (see, most recently, GA Res 44/30 (1989)).
12 See the Serbian Loans Case, PCIJ, Series A, No 14, at p 41. Several treaties have been concluded at various Hague Conferences since 1902, the conferences themselves having begun in 1893. The value of these conferences led to their being established on a permanent basis by a statute drawn up in 1951 (TS No 65 (1955)). See Review of the Multilateral Treaty-Making Process (UN Legislative Series, ST/LEG/SERIES B/21 (1985)), pp 513–21; van Loon, in The Effect of Treaties in Domestic Law (eds Jacobs and Roberts, 1987), pp 221–51. Other major treaties on private international law include the 1928 Bustamente Code (LNTS, 86, p 111), now binding on a number of Central and South American states; conventions signed in Geneva in 1923 and 1928, and in New York in 1958, concerning arbitration awards; conventions signed in Geneva in 1930 and 1931 concerning bills of exchange and cheques; conventions signed in Brussels in 1968 by members of the European Economic Community on the mutual recognition of judgments and of companies (see § 143, n 5); and conventions on a number of subjects concluded at Inter-American Specialised Conferences on Private International Law held in 1975, 1979, 1985 and 1989 (ILM, 14 (1975), p 325, ibid, 18 (1979), p 1211, ibid, 24 (1985), p 459 and ibid, 29 (1990), p 62). See generally Kosters and Bellemans, Les Conventions de la Haye sur le droit international privé (1921); Nolde, Hag R, 55 (1936), i, pp 303–427; Plaisant, Les Règles de conflit de lois dans les traités (1946); Jenks, The Common Law of Mankind (1958), pp 51–4; van Hoogstraten, Hag R, 122 (1967), iii, pp 343–424.
5 See eg the Convention between the Nordic States regarding the Recognition and Enforcement of Judgments 1932 (LNTS, 139, p 165); the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 1971; the Brussels Convention on Jurisdiction and the Enforcement of Civil and Commercial Judgments 1968 between member states of the EEC (ILM, 8 (1969), p 229), the Convention of 1978 providing for the accession of those states which became members of the EEC in 1973 (TS No 10 (1988); ILM, 18 (1979), p 8, on which see Kaye, Civil Jurisdiction and Enforcement of Foreign Judgments (1987)), the Conventions of 1982 and 1989 providing for the accession of Greece (ETS No 46 (1983)), and Spain and Portugal (ETS No 21 (1991); ILM, 29 (1990), p 1413, with explanatory Report on the 1989 accession Convention at p 1470), and the Lugano Convention of 1988 extending the principles of the Brussels Convention to member states of EFTA as well as EEC states (ILM, 28 (1989), p 620, with explanatory Report at ILM, 29 (1990), p 1481; and see Minor, CML Rev, 27 (1990), pp 507–19); the Inter-American Convention on Extra-territorial Validity of Foreign Judgments and Arbitral Awards 1979 (ILM, 18 (1979), p 1224), and the Inter-American Convention on Jurisdiction in the International Sphere for the Extra-territorial Validity of Judgments (ILM, 24 (1985), p 468). Many such bilateral conventions have been concluded: those concluded by the UK follow a generally similar pattern, eg those concluded with the Netherlands in 1967 (TS No 97 (1969)) and Israel in 1970 (TS No 2 (1970)). Apart from such multilateral and bilateral treaties the laws of most states provide for the recognition, within limits laid down by the national law, of civil and commercial judgments given in other states.
See generally on enforcement of foreign judgments von Mehren, Hag R, 167 (1980), ii, pp 9–112; Dicey and Morris, pp 418–533; Restatement (Third), i, pp 591–628; Collier, Conflict of Laws (1987), pp 93–133. On recognition and enforcement of foreign arbitral awards, see Luzzatto, Hag R, 157 (1977), iv, pp 9, 66–86; Bowett, Hag R, 180 (1983), ii, pp 216–21; Brotons, Hag R, 184 (1984), i, pp 169–354; Dicey and Morris, pp 534–93; Restatement (Third), i, pp 629–41; Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
See § 139, nn 41, 52, as to cooperative agreements on enforcement in relation to securities control and anti-trust matters. See also § 119, n 11, as to the exercise of authority by one state within the territory of another, with the latter’s consent.
13 See the Guardianship of Infants Case ICJ Rep (1958), p 55.
14 See § 407.
15 See § 136ff.
1 See § 642, n 2.
2 See, as to ius cogens generally, § 2, with selected bibliography at n 2. In the context specifically of the law of treaties see H Lauterpacht’s Report on the law of treaties, YBILC (1953), ii, pp 154–5; Fitzmaurice’s Report, YBILC (1958), ii, pp 26–7, 39–41; Waldock’s Report, YBILC (1963), ii, pp 52–3; Scheuner, ZöV, 27 (1967), pp 520–32, and 29 (1969), pp 28–38; Sinclair, ICLQ, 19 (1970), at pp 66–9, and The Vienna Convention on the Law of Treaties (2nd ed, 1984), pp 203–41; Charles de Visscher, RG, 75 (1971), pp 5–11; P de Visscher, Hag R, 136 (1972), ii, pp 102–11; Nisot, RG, 76 (1972), pp 692–7; Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties (1974); Rozakis, The Concept of Jus Cogens in the Law of Treaties (1976); Gaja, Hag R, 172 (1981), iii, pp 279–89; Barberis, AFDI, 30 (1984) pp 239, 263–8.
The evolution of the rule may be indicated by noting that the previous edition of this volume (§ 506), without referring to the term ius cogens, expressed the rule as being that ‘it is a recognised customary rule of International Law that obligations which are at variance with universally recognised principles of International Law cannot be the object of a treaty’: the examples given were a treaty by which a state undertook not to interfere should the other party to the treaty command its vessels to commit piratical acts on the high seas, and a treaty the execution of which involves the infliction of a legal wrong upon a third state. McNair, Treaties, asserted that states cannot by treaty set aside or modify ‘rules which have been accepted, either expressly by treaty or tacitly by custom, as being necessary to protect the public interests of the society of States or to maintain the standards of public morality recognised by them’ (p 215). In the Assessment of Aliens for War Taxation Case (1965), ILR, 43, pp 3, 8, consideration was given to the extent to which the provisions of a treaty would not prevail over rules of customary international law. See also the decision of the Constitutional Court of the Federal Republic of Germany of 7 April 1965, with comment by Riesenfeld, AJ, 60 (1966), pp 511–15.
2 See von der Heydte, ZV, 16 (1932), p 461ff; Verdross, AJ, 31 (1937), pp 571–7, and ibid, 60 (1966), pp 55–63; Schwarzenberger, Current Legal Problems, 18 (1965), pp 191–214, and International Law and Order (1971), pp 27–56; Virally, Ann Français, 12 (1966), pp 5–29; Abi-Saab, Suy, Murty and Schwarzenberger in The Concept of Jus Cogens in International Law (1967), Carnegie Endowment Conference, 1966; Schwelb, AJ, 61 (1967), pp 946–75; Mosler, Ann Suisse, 25 (1968), pp 9–40; Morelli, Rivista, 51 (1968), pp 108–17; Marek in Receuil d’études de droit international en hommage à Paul Guggenheim (1968), pp 426–59; Monaco, Hag R, 125 (1968), iii, pp 202–12; Nisot, Rev Belge (1968), pp 1–8; Barberis, ZöV, 30 (1970), pp 19–45; Paul, OZöR, 21 (1971), pp 19–49; Schweitzer, Archiv des Völkerrecht, 15 (1971), pp 197–223; Lachs, Hag R, 169 (1980), iv, pp 201–11; Barberis, ZöV, 30 (1970), pp 19–45; P de Visscher, Hag R, 136 (1972), ii, pp 102–11; Tunkin, ibid, 147 (1975), iv, pp 85–94; Crawford, BY, 48 (1976–77), pp 146–8; Gomez-Robledo, Hag R, 172 (1981), iii, pp 17–208; Alexidze, ibid, pp 227–63; Weil, RG, 86 (1982), at pp 19–29, and AJ, 77 (1983), at pp 423–30; Munch in Völkerrecht als Rechtsordnung (Festschrift für H Mosler) (eds Bernhardt, Geck, Jaenicke and Steinberger, 1983), pp 617–28; Christensen, AJ, 81 (1987), pp 93–101; Hannikainen, Peremptory Norms (ius cogens) in International Law: Historical Development, Criteria, Present Status (1988); Dupuy, RG, 93 (1989), pp 588–97; F A Mann, Further Studies in International Law (1990), pp 84–102. See also, as to the operation of rules of ius cogens in the law of treaties, § 642, n 2.
3 Draft Arts on the Law of Treaties (1966), commentary on Art 50, YBILC (1966), ii, pp 247–9. See also Military and Paramilitary Activities Case, ICJ Rep (1986), pp 100–1.
4 YBILC (1966), ii, pp 247–9; and as to slavery see also commentary on Art 61. The ILC subsequently considered that it was among the four areas which it had identified as giving rise to an international crime (see § 157, n 5) ‘that are to be found the rules which the contemporary international legal order has elevated to the rank of ius cogens’: YBILC, 1976, vol II, pt 2, p 121 (para 67).
‘2 An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole, constitutes an international crime.
3 Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from:
(b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination;
Internationally wrongful acts which are not international crimes in accordance with para 2 constitute international delicts: ibid, Art 19.4.
5 See Draft Arts on State Responsibility, Art 29.2, and commentary, paras (21)–(22), YBILC (1979), ii, pp 109, 114–15.
1 De Cive, xiv, 4.
2 De Jure Naturae et Gentium, ii, c iii, § 22.
3 Lectures on Jurisprudence, vi.
4 On the legal nature of international law see Hart, The Concept of Law (1961), ch X; H Lauterpacht, Collected Papers, (vol 1, 1970), pp 11–36. The matter is also discussed in many of the works cited in n 9.
5 The term ‘municipal law’ is often used in the sense of national or state law in contradistinction to international law. Municipium was ‘a town, particularly in Italy, which possessed the right of Roman citizenship … but was governed by its own laws’: Lewis and Short, Latin Dictionary.
6 See, as to the dangers of the insistence on the specific character of international law, H Lauterpacht, The Function of Law, pp 403–7. See also Jennings, ICLQ, 13 (1964), pp 385–97. On the dissimilarities between international and municipal law see Brierly, The Basis of Obligation in International Law (1958), pp 250–64.
7 8th ed, § 5; see also ibid, §§ 6–9.
8 That is, external to the person against whom they are enforced.
10 See § 129(3).
11 See § 128.
12 Article 24. The Security Council’s role is not exclusive, and the General Assembly also has competence in matters of international peace and security. See Certain Expenses of the United Nations, ICJ Rep (1962), at p 163.
14 Thus compulsory disputes settlement provisions in some treaties depend on the consent of states expressed by their becoming parties to the treaty. The ‘compulsory’ jurisdiction of the ICJ, under Art 36.2 of its Statute, depends on voluntary declarations in advance by the States concerned. On this so-called ‘optional clause’ see vol II of this work (7th ed), pp 58–65 and Jenks, The Prospects of International Adjudication (1964), pp 547–603; Merrills, BY, 50 (1979), pp 87–116.
Even where a state has made such a declaration accepting the Court’s jurisdiction, circumstances may lead it, when another state refers a dispute with it to the Court in reliance on that declaration, to refuse to accept the Court’s jurisdiction. See eg Fisheries Jurisdiction Cases, ICJ Rep (1973), pp 3, 49, and (1974), pp 3, 175; Nuclear Tests Cases, ICJ Rep (1973), pp 99, 135, and (1974), pp 253, 457; United States Diplomatic and Consular Staff in Teheran Case, ICJ Rep (1980), p 3; Military and Paramilitary Activities Case, ICJ Rep (1984), p 169, and (1986), p 14. On the situation arising from the non-appearance of the defendant state in such cases see Guyomet, Le Défaut des parties à un differend devant les juridictions internationales (1960); Eisemann, AFDI, 19 (1973), pp 351–75; Rosenne in Il processo internazionale, xiv Communicazioni et studi, Studi in onore di Gaetano Morelli (1975); Stuyt, RG, 82 (1978), pp 401–33; Fitzmaurice, BY, 51 (1980), pp 89–122; Sinclair, ICLQ, 30 (1981), pp 338–47; Mosler in Festschrift Schlochauer (1981), pp 439–56; Mangoldt in Festschrift für H Mosler (1983), pp 503–28; Bowett, Hag R, 180 (1983), ii, pp 204–21; Elkind, Non-appearance before the International Court of Justice (1984), and ICLQ, 37 (1988), pp 674–81; Thirlway, Non-appearance before the International Court of Justice (1985); Highet, AJ, 81 (1989), pp 237–54.
Examples of defendant states failing to participate in arbitration proceedings to which they had previously agreed by contract include BP Exploration Company (Libya) Limited v Government of the Libyan Arab Republic (1973), ILR, 53, p 297; Texaco Overseas Petroleum Company and California Asiatic Oil Company v Government of the Libyan Arab Republic (1975–1977), ILR, 53, p 389; Libyan American Oil Company v Government of the Libyan Arab Republic (1977), ILR, 62, p 140.
15 See n 13. See also § 145ff, as to the law of state responsibility, which allows for the redress of international wrongs suffered by one state at the hands of another. See also generally, Fisher, Improving Compliance with International Law (1981).
9 See § 583. On recent developments in the international law-making process generally, see Gotlieb, Hag R, 170 (1981), pp 131–55.
The convenience of the term ‘law-making treaties’ may become a source of confusion if we fail to keep in mind that: (a) all treaties are in a real sense law-making inasmuch as they lay down rules of future conduct for the parties in a way similar to that in which a private contract lays down the law governing the conduct of the parties in the future; (b) the term ‘law-making’ does not imply that there exists among states international legislation in the accepted meaning of the term, namely, the enactment of laws overriding the will of a dissenting minority.
See, on the use of the term ‘international legislation’, McNair, Iowa Law Rev, 19 (1933–34), pp 177–89; Hudson, Legislation, v, p viii. See also Brierly, Problems of Peace, 5th series (1930), pp 205–29; McNair, BY, 11 (1930), pp 110, 112–16; Gihl, International Legislation (1937); Starke, BY, 23 (1946), pp 341–6; Engel, AJ, 44 (1950), pp 737–9; Jenks, BY, 29 (1952), pp 107–10 and A New World of Law? (1969), pp 175–86; Kelsen, Principles of International Law (1952), p 321ff; Ch de Visscher, RG, 59 (1955), at p 359ff; Lachs, Hag R, 92 (1957), ii, pp 236–333; Schwarzenberger, Frontiers of International Law (1962), pp 288–96; Shihata, Revue Egyptienne de droit international, 22 (1966), pp 51–90; Singh, Malaya Law Rev, 12 (1970), pp 277–97, ibid, 13 (1971), pp 178–92, and ibid, 14 (1972), pp 1–60; Fitzmaurice, Annuaire: Livre du Centenaire (1973), pp 262–75; Morgenstern, BY, 49 (1978), pp 101–17; Jennings, Ius et Societas (ed Wilner, 1979), pp 159–68; Lachs, in Völkerrecht als Rechtsordnung (Festschrift Mosler) (eds Bernhardt et al, 1983), pp 493–502; and on the concept of legislation in general, Akzin, Iowa Law Rev, 21 (1936), pp 713–50. It is of interest to note that Scelle, who seems to attach importance to the distinction between law-making and other treaties, admits in effect that practically all treaties are ‘law-making’: La Théorie juridique de la révision des traités (1936), p 41. See also § 16, as to the ‘law-making’ powers of international organisations; and § 24ff, as to codification of international law.
17 See § 16.
18 As to which see also § 32.
19 Note also ‘general principles of law’ as a source of international law less dependent upon consent than other sources: see § 12.
20 See § 592.
21 See Fitzmaurice, BY, 3 (1953), pp 8–18, and Hag R, 92 (1957), ii, pp 49–59; H Lauterpacht, The Development of International Law by the International Court (1958), pp 359–67; Waldock, Hag R, 106 (1962), ii, pp 161–9. The older view found some support in the dictum of the PCIJ in the Lotus case that ‘International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.’ (PCIJ, Series A, No 10, p 18.) Although the Court was directed by the compromis to consider the matter from the standpoint of seeking rules prohibiting Turkey from doing what she had done, the Court explained that this ‘way of stating the question is also dictated by the very nature and existing conditions of international law’ (ibid).
22 Thus the notion of ‘abuse of right’ is unavailable unless, but is available where, it is a ‘right’ which is being exercised.
23 ICJ Rep (1986), pp 26, 27. The Court has also noted that while it may be aware that political aspects may be present in any legal dispute brought before it, the purpose of recourse to the Court is the peaceful settlement of legal disputes: its judgment is a legal pronouncement, and it cannot concern itself with the political motivation which may lead a state at a particular time, or in particular circumstances, to choose judicial settlement (Border and Transborder Armed Actions, ICJ Rep (1988), p 91).
24 See H Lauterpacht, The Function of Law, pp 51–135, Development of International Law by the International Court (1958), pp 165–7, in Symbolae Verzijl (1958), pp 196–221, and in Collected Papers, vol I (1970), pp 94–8; Siorat, Le Problème des lacunes en droit international (1959); Stone, BY, 35 (1959), pp 124–61; Salmon, Rev Belge (1967), pp 440–58; Higgins, ICLQ, 17 (1968), pp 58–84; Thirlway, BY, 60 (1989), pp 76–84. But note the critical view taken of the completeness of international law by Carty, The Decay of International Law? (1986).
25 Thus although in the Barcelona Traction case (Second Phase) the ICJ, noted that ‘International law may not, in some fields, provide specific rules in particular cases’, it nevertheless proceeded to decide the case before it, arising in one of those fields, as a matter of law (ICJ Rep (1970), p 38). See also Oil Fields of Texas Inc v Iran (1982), ILR, 69, at pp 581 and 594: ‘[the] circumstances do not fall clearly within well developed and discussed doctrines of law. The controlling rules have therefore to be derived from principles of international law applicable in analogous circumstances or from general principles of law. The development of international law has always been a process of applying such established legal principles to circumstances not previously encountered’ (p 581).
26 Article 12 of the ILC Draft Articles on Arbitral Procedure provides that ‘the tribunal may not bring in a finding of non liquet on the ground of the silence or obscurity of the law to be applied’ (YBILC, (1958), ii, p 8). In Desgranges v ILO the impermissibility for a judicial tribunal to pronounce a non liquet because of the silence or obscurity of the law was regarded as a ‘fundamental tenet of all legal systems’: ILR, 20 (1953), pp 523, 530.
27 Fisheries Jurisdiction Case, ICJ Rep (1974), p 9; reaffirmed in the Military and Paramilitary Activities Case, ICJ Rep (1986), pp 24–5.
2 It is not inconsistent with this affirmation that states may differ as to precisely what rules that law prescribes.
1 See Brierly, Hag R, 23 (1928), iii, reprinted in The Basis of Obligation in International Law (1958), pp 1–67; Fitzmaurice, Hag R, 92 (1957), ii, pp 36–47; Hart, The Concept of Law (1961), ch 10.
For a bibliography of earlier discussion of the subject see 8th ed of this vol, p 15, n 1.
It may be noted that in Marxist theory in particular the requirement of consent, as a reflection of state sovereignty, is given notably strong emphasis: see §§ 23, n 22, and 104, n 5; and § 104, n 6 as to ‘peaceful coexistence’.
22 As to the change of the Russian attitude in connection with its entry into the League of Nations, see Mannzen, Soviet-union und Völkerrecht (1932); Davis, ‘The Soviet Union and the League of Nations’, Geneva Special Studies, 5, No 1 (1934); Kleist, Die völkerrechtliche Anerkennung Sovietrusslands (1934); Miliokov, La Oblique extérieure des Soviets (1936); Hartlieb, Das politische Vertragssystem der Sowietunion, 1920–35 (1936); Makarov, ZöV, 5 (1935), pp 34–60 (with a bibliography), and 6 (1936), pp 479–95; Maurach, ZV, 21 (1937), pp 19–45; and Beckhoff, Völkerrechtgegen Bolschevismus (1937). See also Prince, AJ, 36 (1942), pp 425–45 (on the participation of Soviet Russia in international organisation), ibid, 39 (1945), pp 450–85, Hazard, Yale LJ, 55 (1946), pp 1016–35, and Krylov, Hag R, 70 (1947), i, pp 407–74.
Among more recent literature on the Soviet approach to international law see Hazard, Law and Social Change in the USSR (1953), pp 274–300; Calvez, Droit international et souveraineté en URSS (1953); Stone, Legal Controls of International Conflict (1954), pp 57–64; Kelsen, Communist Theory of Law (1955); Kulski, AJ, 49 (1955) pp 518–34; Snyder and Bracht, ICLQ, 7 (1958), pp 54–71; Triska and Slusser, AJ, 52 (1958), pp 699–726; Corbett, Law in Diplomacy (1959), pp 83–109; Meissner, Sowjetunion und Völkerrecht 1917 bis 1962 (1963), a valuable bibliographical work, and Aussenpolitik und Völkerrecht der Sowjetunion (1987); Zile, AJ, 58 (1964), pp 359–88; Ramundo, The (Soviet) Socialist Theory of International Law (1964); Higgins, Conflict of Interests (1965), Pt III; Baade (ed), The Soviet Impact on International Law (1965); Dutoit, Coexistence et droit international à la lumière de la doctrine Sovietique (1966); Nasinovsky, AS Proceedings (1968), pp 189–96; Ginsburgs, ibid, pp 196–203; Tunkin and Lewin, Drei sowjetische Beitrage zur Völkerrechtslehre (1969); Grzybowski, Soviet Public International Law (1970), and Soviet International Law and the World Economic Order (1987); Patry, Can YBIL, 9 (1971), pp 102–13; Ginsburgs, YB of World Affairs (1971) pp 39–55; Hazard, AJ, 65 (1971), pp 142–8; Butler, ibid, pp 796–800; Osakwe, AJ, 66 (1972), pp 596–600; Butler, YB of World Affairs (1972), pp 331–45; Tunkin, Theory of International Law (1974), Hag R, 147 (1975), iv, pp 1–208, and in Ius et Societas (ed Wilner, 1979), pp 338–49; Lapenna, YB of World Affairs (1975), pp 242–64; Schweisfurth, Sozialistiches Völkerrecht? (1979); Grzybowski, AJ, 77 (1983), pp 862–72; Kartashkin in The Structure and Process of International Law (eds Macdonald and Johnston, 1983), pp 79–102; Green, Yale JIL, 13 (1988), pp 306–31; Malenovsky, Rev Belge, 22 (1989), pp 307–38; Mullerson, AJ, 83 (1989), pp 494–513. See also § 104, n 6 (on ‘peaceful co-existence’), and § 133 (on the ‘Brezhnev doctrine’).
On the implications for international law of the existence of East-West ‘tension’ see Schwarzenberger, Grotius Society, 36 (1950), pp 229–69; McWhinney, AJ, 59 (1965), pp 1–15; Tunkin, Recueil d’études de droit international en hommage à Paul Guggenheim (1968), pp 888–98.
5 The emphasis sometimes placed in Marxist theory on the need for consent to rules of international law is to be noted. It is asserted that although the state will eventually wither away, in the ‘transitional’ (ie contemporary) period the state continues to exist and is sovereign, that states will continue (temporarily) to have dealings with each other, but that an aspect of their sovereignty is that they cannot be legally bound by rules to which they have not expressly consented. Although in their extreme form these views are now less often advanced, even in a more moderate form they downgrade customary international law in favour of freely concluded treaties recording the express consent of the states concerned, and weaken the legal force of all rules of customary international law which have not been expressly assented to by all states. Such an emphasis on universally expressed consent underestimates the extent to which in actual fact rules of conduct which are generally even if not universally accepted are regarded as law. It also creates a legal vacuum in those areas presently regulated by customary international law, large parts of which depend on the implied consent of states. Their replacement by the alleged basic principle of ‘peaceful coexistence’ between states is an unsatisfactory and inadequate alternative.
6 Peaceful coexistence was not only a feature of East-West relations in this period, but also a distinctive element in the Asian (and specifically Chinese) approach to international law, formally stated in the Sino-Indian Treaty of 1954, and set out the following year in the declaration of the Bandung Conference. The literature on peaceful coexistence is extensive, and is often more political than legal (as is appropriate for a concept which has been put forward largely for political purposes). Amongst the more legally centred contributions are Hazard, AJ, 51 (1957), pp 63–71, AJ, 55 (1961), pp 109–20, AJ, 57 (1963), pp 86–97, 604–13, and AJ, 59 (1965), pp 59–66; Fifield, AJ, 52 (1958), pp 504–10; Tunkin, Hag R, 95 (1958), iii, pp 5–78, and Droit international public, problèmes théoriques (1965), pp 19–62; Snyder and Bracht, ICLQ, 7 (1958), pp 54–71; Syatauw, Some Newly Established Asian States and the Development of International Law (1961), pp 206–19; McWhinney, AJ, 56 (1962), pp 951–70, RG, 67 (1963), pp 544–62, ‘Peaceful Coexistence’ and Soviet-Western International Law (1964), and Conflit idéologique et ordre public mondial (1970); Lapenna, ICLQ, 12 (1963), pp 737–77; Higgins, Conflict of Interests (1965), pp 99–170; Sharma, Indian Year Book of International Affairs, 14 (1965), pp 109–136; Ramundo, Peaceful Coexistence (1967); Freeman, AJ, 62 (1968), pp 710–22; Dore, International Law and the Superpowers (1984), pp 1–29. See also the discussions of the International Law Association in ILA, Report of the 47th Conference (1956), pp 17–63; ibid, Report of the 48th Conference (1958), pp 417–505; ibid, Report of the 49th Conference (1960), pp 332–84; ibid, Report of the 50th Conference (1962), pp 260–374; ibid, Report of the 51st Conference (1964), pp 777–821. See also § 23, nn 21, 22, as to the Soviet approach to international law; and § 105, n 2, as to the ‘Friendly Relations’ Declaration.
2 See Fitzmaurice, Annuaire: Livre du Centenaire (1973), pp 237–45. The matter is also discussed in many of the works cited in n 3. In relation to treaties a new state can exercise a degree of choice (which may be substantial) as to which treaties formerly extending to its territory it will regard as continuing to bind it after independence: see generally § 66.
3 Jennings, BY, 34 (1958), pp 350–4; Bos, Varia Juris Gentium: Liber Amicorum for J P A François (1959), pp 62–72; Rölling, International Law in an Expanded World (1960); Syatauw, Some Newly Established Asian States and the Development of International Law (1961); Castaneda, International Organisation, 15 (1961), pp 38–48; Anand, AJ, 56 (1962), pp 383–406, and ICLQ, 15 (1966), pp 55–75, and New States in International Law (1972); Sinha, ICLQ, 14 (1965), pp 121–31, and New Nations and the Law of Nations (1967); O’Brien (ed), The New Nations in International Law and Diplomacy (1965); Falk, Hag R, 118 (1966), ii, pp 7–103; Green, Can YBIL, 5 (1967), pp 118–41; Doherty, AJ, 62 (1968), pp 335–64; Fatouros in The Future of the International Legal Order, vol 1 (eds Falk and Black, 1969), pp 317–71; Bokor-Szegö, New States and International Law (1970); Yakemtchouk, L’Afrique en droit international (1971); Anand (ed), Asian States and the Development of International Law (1972); Elias, Africa and the Development of International Law (1972), and New Horizons in International Law (1980), pp 21–34; McWhinney, The International Court of Justice and the Western Tradition of International Law (1987), ch 1. See also § 23, on the universality of international law. On the influence on international law of non-Christian and non-European cultures and civilisations see also § 22, n 3 and n 10.
It may be that the tendency of some newly independent states to question rules of customary international law on the basis that they reflect concepts which are essentially alien to their cultures, attitudes and interests no longer represents a major element in their approach to international law. Those states increasingly seem to accept, eg in pleadings before the ICJ, international law as the appropriate general frame of reference for the discussion of international legal issues (while, of course, remaining free — as are all states — to contend for the existence of particular rules in a form which reflects their requirements).
3 As to the position of non-Christian states and peoples at different stages in the development of international law see Westlake, i, p 40; Phillimore, i, §§ 27–33; Bluntschli, §§ 1–16; Heffter, § 7; Gareis, Das heutige Völkerrecht (1879), § 10; Rivier, i, pp 13–18; Fauchille, §§ 40–44 (1); Martens, § 41; Nys, i, pp 126–37; Westlake, Papers, pp 141–43; Lindley, pp 10–47 and passim; Smith, i, pp 14–33; Plantet, Les Consuls de France à Alger avant la Conquéte (1579–1830) (1930); Irwin, The Diplomatic Relations of the United States with the Barbary Powers, 1776–1816 (1931); Scott, The Spanish Origin of International Law, Francisco de Vitoria and his Law of Nations (1934). For a study of some treaty and diplomatic relations between European and South Asian states in the 17th and 18th centuries, see Alexandrowicz in Hag R, 100 (1960), ii, pp 207–316, suggesting that those relations were conducted on the basis of international law to a greater extent than is often realised, and that the early contribution of non-European and non-Christian influences of the forms of international law is not to be underrated. See similarly the same writer in BY, 35 (1959), pp 162–82, BY, 37 (1961), pp 506–16, BY, 39 (1963), pp 441–8, BY, 41 (1965–66), pp 301–20, Introduction to the History of the Law of Nations in the East Indies (1967), and Hag R, 123 (1968), i, pp 117–214. See also Wright, AJ, 48 (1954), pp 616–26; Higgins, Conflict of Interests (1965), pp 11–45; Mössner, Die Völkerrechtspersönlichkeit und die Völkerrechtspraxis der Barbareskenstaaten (1968), and in Grotian Society Papers 1972 (ed Alexandrowicz, 1972). See also works cited at § 5, n 3; and n 10 below.
See in particular as to the Islamic contribution to international law Armanazi, Les prindpes islamiques et les rapports internationaux en temps de paix et de guerre (1929); Bentwich, The Religious Foundations of Internationalism (1933), pp 159–80; Rechid, Hag R, 60 (1937), ii, pp 375–502; Hamidullah, The Muslim Conduct of State (revised edition, 1945); Kruse, Islamische Völkerrechtslehre (1953); Khadduri and Liebesny, Law in the Middle East, 1 (1955), pp 348–72; Khadduri, The Law of War and Peace in Islam (1955), and AJ, 50 (1956), pp 358–72; Mahmassani, Hag R, 117 (1966), i, pp 205–328; Khadduri (ed), The Islamic Law of Nations: Shaybani’s Sivar (1966). As to ancient Egypt, see Rey, RG, 48(1), (1941–45), pp 35–52.
As to Indian and Hindu influences see Bandyopadhyay, International Law and Custom in Ancient India (1920); Chacko, Hag R, 93 (1958), i, pp 121–42; Sastry, ibid, 117 (1966), pp 507–615; Derrett, Indian Year Book of International Affairs, 15–16 (1966–67), pp 328–47. See also Viswanatha, International Law in Ancient India (1925), which reveals some interesting anticipations of rules and institutions commonly regarded as exclusively European. See also Jayatilleke, Hag R, 120 (1967), i, pp 441–563, as to the influence of Buddhist doctrine on international law.
As to Chinese influence on and attitudes to international law see Sui Tchoan Pao, Le droit des gens et la Chine antique (1924); Escarra, La Chine et le droit international (1931); Britton, AJ, 29 (1935), pp 616–35; Tung, China and Some Phases of International Law (1940); Chow, La doctrine de droit international chez Confucius (1940); Chen, AJ, 35 (1941), pp 641–50; Chiu, AJ, 60 (1966), pp 245–67; Iriye, Hag R, 120 (1967), i, pp 1–60; Cohen, AS Proceedings (1967) pp 108–116, and (ed), China’s Practice of International Law (1972); Cohen and Hungdah Chiu, People’s China and International Law (2 vols, 1974); Hsiung, Law and Policy in China’s Foreign Policy (1972).
Mention should also be made of the contribution of Judaism to the conception of the Law of Nature: see Isaacs, The Legacy of Israel (Oxford, 1927); Bentwich, The Religious Foundations of Internationalism (1933), pp 59–82, and Weil, Hag R, 151 (1976), iii, pp 253–333. Selden published in 1640 his De Jure Naturali et Gentium juxta Disciplinam Ebraeorum.
4 See § 105.
5 See § 106.
6 It must be remembered that many ‘new’ states in fact have a long history as one-time independent political societies.
7 See § 575, n 13.
13 Consensus is in practice, even without express provision to that effect, often the basis for decisions taken in many international fora. For a provision for a conference’s decisions to be taken by consensus, see para 69 of the Final Recommendations of the Helsinki Conference on Security and Co-operation in Europe 1973 (AJ, 68 (1974), at p 191). Consensus also played a major role in the work of the Third UN Conference on the Law of the Sea 1973–82, by virtue of the ‘Gentleman’s Agreement’ endorsed by the Conference on 27 June 1974. See Vignes, AJ, 69 (1975), pp 119–29; Sohn, ibid, pp 310, 333–52; Treves, Ital YBIL, 2 (1976), pp 39–60; Barile, Ital YBIL, 5 (1980–81), pp 3–13; Buzan, AJ, 75 (1981), pp 324–48; Evensen, Hag R, 199 (1986), iv, pp 483–6. See also Rule 35 of the Rules of Procedure of the Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea: ILM, 22 (1983), p 1352.
For treaty provisions calling for decisions to be taken by consensus see Art 161 (8)(d) of the Convention on the Law of the Sea 1982, and Art 22.2 of the Convention on the Regulation of Antarctic Mineral Resource Activities 1988 (§ 257, n 5); both Conventions define ‘consensus’ as meaning ‘the absence of formal objection’: Arts 161(8)(e) and 22.5 respectively. See generally on consensus procedures for the taking of decisions Jenks, Cambridge Essays in International Law (1965), pp 48–63; Cassan, AFDI, 20 (1974), pp 456–85; UN Juridical YB (1974), pp 163–4; Sperduti, Ital YBIL, 2 (1976), pp 33–8; Ballreich, in Völkerrecht als Rechtsordnung (Festschrift Mosler) (ed Bernhardt et al, 1983), pp 1–24; Zemanek, in The Structure and Process of International Law (eds Macdonald and Johnston, 1983), pp 857–87; Lacharrière, AFDI, 14 (1968), pp 9–14. An interesting provision is included in the Montreal Protocol on Substances that Deplete the Ozone Layer 1987 (ILM, 26 (1987), p 1541), Art 9 of which provides for the parties to reach agreement by consensus on certain decisions, failing which and as a last resort, the decision may be taken by a specified majority, to be binding on all parties.
2 See the Mavrommatis Palestine Concessions Case (1924), PCIJ, Series A, No 2, p 12, line 10.
1 The question whether there could be any subjects of international law other than states was at one time a matter of strenuous debate. In the first three editions of this work the view was expressed that states only and exclusively are the subjects of international law. It is now generally accepted that there are subjects other than states, and practice amply proves this. One of the most important pioneers in getting this ‘modern’ view accepted was Sir Hersch Lauterpacht, the editor of the 8th ed of this vol. See H Lauterpacht, LQR, 63 (1947), pp 438–60, 64 (1948), pp 97–119, and Collected Papers, I (1970), pp 136–50. See also n 2 on p 19 of the 8th ed of this vol for an extensive bibliography of the earlier discussion.
2 See generally § 375. In Globocnik-Vojka v Republic of Austria ILR, 71 (1958), p 265, liquidators of a bank, appointed under a treaty provision pursuant to which the bank was put into liquidation, were held to have acquired a ‘status of persons under international law’.
2 In Steiner and Gross v Polish State the Upper Silesian Arbitral Tribunal held, in March 1928, that, under the terms of the relevant convention, it had jurisdiction to entertain a claim by a Polish national against the Polish State — notwithstanding the Polish contention that under international law an individual cannot invoke an international authority against his own state: AD, 4 (1927–28), No 188. Moreover, in the same case the Tribunal held that a national of a third state, which was not a party to the treaty in question, could exercise rights enforceable before the Tribunal, ibid, No 287. The Mixed Arbitral Tribunals established after the First World War are probably also another instance of direct access of individuals to international tribunals. See Blüdhorn, Hag R, 41 (1932), iii, pp 144–6. But the question is controversial. Thus Anzilotti, p 136, considers the jurisdiction of the Mixed Arbitral Tribunals to be the result of parallel municipal legislation; see also Kaufmann, cited below, who, without denying the theoretical significance of the innovation, explains it by reference to the exceptional character of the peace treaties and stresses the circumstance that before these tribunals governments remained in part domini litis.
Notable examples of tribunals established by treaty and to which individuals have access for the enforcement of treaty provisions, even against the state of which they are nationals, are afforded by the Court of Justice of the European Communities (see § 19, sect (3)) and the European Court and Commission of Human Rights (see § 442).
After the Second World War a Supreme Restitution Court and an Arbitral Commission on Property, Rights and Interests in Germany were established by treaty in the Federal Republic of Germany to deal with certain matters of restitution and compensation arising out of the war, and individuals had access to these tribunals: see Simpson and Fox, International Arbitration (1959), pp 37–9. The Iran-USA Claims Tribunal was established in a manner allowing individuals to present their own claims directly to the tribunal: see § 158, n 5.
As to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965, see § 407, n 49.
See also Pt I of the Additional Protocol to the European Convention on State Immunity 1972 (§ 109, n 8) allowing individuals access to the European Tribunal constituted under the Protocol (unless a declaration to the contrary is made under Pt IV). Note also the various administrative tribunals established to deal with disputes between international organisations and their employees. The ICJ has held that it is not precluded from delivering an Advisory Opinion as the result of an initiative taken by a member state of the UN in respect of the rights of a private individual, notwithstanding that the individual could not be in the same position before the Court as that state: Review of Judgment No 273 of the UN Administrative Tribunal, ICJ Rep (1982), pp 325, 332–3.
See generally on the access of individuals to international tribunals: Fleury, Un nouveau progrès de la justice internationale: l’accès de particuliers aux tribunaux internationaux (1932); Schulé, Le droit d’accès des particuliers aux juridictions internationales (1934); Annuaire, 33 (1927) ii, pp 601–26; Rundstein RL, 3rd series, 10 (1929), pp 431–53, 763–83; Borchard in AJ, 24 (1930), pp 359–65; Ténékidès RI, 3rd series, 13 (1932), pp 89–111; Baumgarten, ibid, pp 742–99; Séfériadès Hag R, 51 (1935), i, pp 5–120; Kaufmann, ibid, 54 (1935), iv, pp 420–27; Idelson in Grotius Society, 30 (1944), pp 50–66; Sperduti, Hag R, 90 (1956), ii, pp 788–824; Gross, AJ, 52 (1958), pp 16–40; Brownlie, ICLQ, 11 (1962), pp 701–20, and Principles of Public International Law (4th ed, 1990), pp 580–94; von der Heydte, Hag R, 107 (1962), iii, pp 297–357; Gormely, The Procedural Status of the Individual before International and Supranational Tribunals (1966); Atkey, Can YBIL, 5 (1967), pp 229–40; H Lauterpacht, Collected Papers, vol I (1970), pp 143–7; Trinidade, Neth IL Rev, 24 (1977), pp 373–92.
As to the access of individuals to international authorities by way of petition see Richard, Le Droit de pétition (1932); Feinberg, Hag R, 40 (1932), ii, pp 529–640. The right of petition is an established practice of the UN, particularly in relation to individuals from trust and dependent territories and in relation to human rights (see §§ 436, n 18, 438, n 19 and 440, n 34); it is also formally part of the procedures of the European Commission of Human Rights (see § 442). In its Advisory Opinion on the Status of South-West Africa (ICJ Rep (1950), p 128) the ICJ regarded the inhabitants of mandated territories as having acquired a right to submit petitions to the Council of the League of Nations, and concluded that they continue to have that right in relation to the UN General Assembly: pp 137–8. See also the South-West Africa (Hearings of Petitioners) Case, ICJ Rep (1956), p 23.
49 TS No 25 (1967); ILM, 4 (1965), p 532; AJ, 60 (1966), p 892; UNTS, 575, p 159. The Convention entered into force in 1966. It established an International Centre for Settlement of Investment Disputes (Art 1) the jurisdiction of which extends ‘to any legal dispute arising directly out of an investment, between a Contracting State … and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre’ (Art 25). See also Chapters III and IV of the Convention, regarding Conciliation and Arbitration. Consent to arbitration under the Convention excludes other remedies, eg in national courts (Art 26). Awards are binding on the parties to the dispute and contracting states must recognise awards and enforce pecuniary obligations imposed by them as if they were final judgments of their own courts (Arts 53, 54). But execution against state property may be subject to considerations of sovereign immunity (Art 55). For the Centre’s ‘Additional Facility’ (1978), see ILM, 21 (1982), p 1443.
See on the Convention generally, Rodley, Can YBIL, 4 (1966), pp 43–63; Roulet, Ann Suisse, 22 (1965), pp 121–54; E Lauterpacht, in Receuil Guggenheim (1968), pp 642–64; Schwarzenberger, Foreign Investments and International Law (1969), pp 135–52; Szasz, The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (vol 1, 1970; vol 2, 1968); Pirrung, Die Schiedsgerichtsbarkeit nach dem Weltbankübereinkommen für Investitionsstreitegkeiten unter besonderer Berücksichtigung der Rechtslage bezüglich der Bundesrepublik Deutschland (1972); Broches, Hag R, 136 (1972), ii, pp 331–410; Amerasinghe, BY, 47 (1974–75), pp 227–68; Cherian Investment Contracts and Arbitration (1975); Meron, BY, 47 (1974–75), pp 301, 303–9; Sutherland, ICLQ, 28 (1979), pp 367–400; O’Keefe, YB of World Affairs, 34 (1980), pp 286–304; Delaume, AJ, 77 (1983), pp 784–803; Tupman, ICLQ, 35 (1986), pp 813–38. See also § 12, n 12, as to the law applicable to contracts between states and private parties.
5 While admitting that in principle a treaty ‘cannot, as such, create direct rights and obligations for private individuals’, the Court said: ‘It cannot be disputed that the very object of an international agreement, according to the intention of the contracting parties, may be the adoption by the parties of some definite rules creating individual rights and obligations and enforceable by national courts’: (1928) PCIJ, Series B, No 15, p 17. See for comment thereon H Lauterpacht, The Development of International Law by the International Court (1958), pp 173–6.
6 See § 19, sect (3).
8 See § 148.
8 YBILC (1954), ii, pp 151–2. See § 30, item (19).
10 See § 19.
4 See generally Belkharroubi, Revue Egyptienne de Droit International, 28 (1972), pp 20–43; Ronzitti, Le Guerre di liberazione nazionale e il diritto internazionale (1974); Ronzitti, Ital YBIL, 1 (1975), pp 192–205; Klein, ZöV, 36 (1976), pp 618–52; Barberis, Hag R, 179 (1983), i, pp 239–68; Shaw, in Third World Attitudes to International Law (eds Snyder and Sathirathai, 1987), pp 141–55. For the view that national liberation movements have a unique degree of international personality derived from the basic right to self-determination, which in turn may legitimise their recognition as a government (or provisional government) in circumstances which might otherwise be premature, and removes wars in which they are engaged from the traditional category of civil wars, see Wilson, International Law and the Use of Force by National Liberation Movements (1988), pp 103–27.
Associated aspects of the same issue include (1) the right of a liberation movement to use force to achieve its aims (see § 127, n 10, and § 85, at nn 25–8); (2) its right to seek assistance from third states (see § 85, at nn 25–8; § 131 (4)), and (3) their right to respond positively to such requests (ibid); (4) the right of the parent state to use force to resist the liberation movement (see § 127, n 10, and § 130, at nn 20–2); (5) its right to seek assistance from third states (see § 130, at nn 20–2), and (6) their right to respond positively to such a request (see § 130, at nn 18–22). As to the unlawfulness of aiding rebels in another state, and the possibility of encouragement of civil strife in another country constituting indirect aggression, see Novogrod in International Criminal Law, (eds Bassiouni and Nanda, vol 1, 1973), pp 198–237; and § 130, at nn 16–19, and § 122.
13 See § 99ff.
14 See § 84, n 17. See also § 85, n 29, as to the concept of ‘peoples’. As to the position of dependent territories in general see § 84; and see § 75 on the international position of the member states of a federation; and also § 22, n 7 as to the position of certain native tribes.
17 Thus Hong Kong is a member of the WMO, GATT, and the Asian Development Bank, and an associate member of the IMO and the Economic Commission for Asia and the Pacific; ‘British overseas dependent territories’ constitute a collective member of the UPU, and also of the ITU until the International Telecommunications Convention 1973, which abolished such membership, entered into force. Montserrat became a member of the Organisation of Eastern Caribbean States, but without participating in its defence and external affairs activities: see Parliamentary Debates (Commons), vol 47, col 444 (written answers, 3 November 1983). As to Southern Rhodesia, see n 4.
Participation by colonies in international organisations is particularly likely witii organisations of an administrative or technical kind, which are more concerned with the possession by a territory of the relevant functional capacity (eg its own postal or meteorological services) than with its political status. See also Fawcett, The British Commonwealth in International Law (1963), pp 229–31. Non-self-governing territories in the region covered by the Economic Commissions for Asia and the Pacific and for Latin America and the Caribbean may be associate members of those Commissions, and several have done so.
29 The matter is discussed in many of the works cited at n 14; and see Dinstein, ICLQ, 25 (1976), pp 102, 103–10; Crawford (ed), The Rights of Peoples (1988); and § 428 (as to minorities and indigenous peoples). As to the Algiers Declaration of the Rights of Peoples 1976, see Rigaux, and Falk, in UN Law: Fundamental Rights (ed Cassese, 1979), pp 211–24 and 225–36. This Declaration was the product of work by a number of eminent individuals. It was followed by the adoption in 1981 of the African Charter of Human and Peoples’ Rights (§ 444): as to the concept of ‘peoples’ in that Charter, see Kiwanuka, AJ, 82 (1980), pp 80–101. See also § 22, n 7, as to the position generally of native peoples. As to the application of the principle of self-determination in respect of the transfer of eastern areas of Poland to the Soviet Union in 1939, see Ginsburgs, AJ, 52 (1958), pp 78–80; in respect of the Palestinian people, see Mallison and Mallison, The Palestine Problem (1986), pp 188–204; and in respect of Mayotte, see Oraison, Rev Belge, 17 (1983), pp 655–98. In its Advisory Opinion on the Western Sahara the ICJ declined to regard the ‘Mauretanian entity’ as a personality or corporate entity distinct from the several emirates and tribes composing it, or as enjoying some form of sovereignty in the Western Sahara: ICJ Rep (1975), p 63). See also AD v Canada (1984), ILR, 79, p 261. And see § 375, n 6.
7 See generally as to the position of native peoples Crawford, The Creation of States in International Law (1979), pp 176–84; and § 34, n 3 and (as to territorial rights) § 250, n 4, (as to indigenous peoples) § 428, and (as to treaties) § 595, n 2.
As to the application of the laws of war to non-civilised states and savage tribes see Wright, AJ, 20 (1926), pp 265–68, and Colby, ibid, 21 (1927), pp 279–88. The USA applied, in some respects, the rules of international law to their relations with Red Indian tribes: see Rice, JCL, 3rd series, 16 (1934), pp 78–95; Deloria, AS Proceedings, 1974, pp 276–80.
For relations with Indian peoples in the USA, see especially the judgments of Marshall CJ of the Supreme Court in Fletcher v Peck (1810) 6 Cranch 87, 2 Peters 308; Johnson and Graham’s Lessee v M’Intosh (1823) 8 Wheaton 543, 5 L Ed 681; Cherokee Nation v State of Georgia (1831) 5 Peters 1, 8 L Ed 25; and Worcester v State of Georgia (1832) 6 Peters 515, 8 L Ed 483. See also Mitchell v United States (1835) 9 Peters 711, 9 L Ed 283; Goodall v Jackson (1823) 20 Johns R 693; United States v Sioux Nation of Indians (1980) 448 US 371; Totus v United States, AD, 10 (1941–42), No 1; Ex parte Green, ibid, No 128.
For the position of Indian peoples in Canada see Cumming, AS Proceedings (1974), pp 265–76; Torrelli, AFDI, 20 (1974), pp 227–49; Sanders, Indigenous People in the Constitution of Canada (1980); and Slattery, The Land Rights of Indigenous Canadian Peoples (1979). The nature of ‘treaty’ relations between the Crown and Indian tribes in Canada, and the resulting status of Canadian Indians, was considered at length in the context of the enactment at Westminster, at the request of the Government of Canada, of the Canada Act 1982, to which were annexed new Constitutional provisions for Canada: see R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta  QB 892; Noltcho v Attorney-General  3 All ER 822; and comment by Crawford, BY, 53 (1982), pp 253–9. See also Logan v Styres (1959), ILR, 27, p 239; Calder v Attorney-General of British Columbia (1973), ILR, 73, p 56.
For a discussion of the rights of aboriginal tribes in lands inhabited by them see Re Southern Rhodesia  AC 211. See also generally Snow, The Question of Aborigines in the Law and Practice of Nations (1921); Octavio, Les sauvages Americains devant le droit, Hag R, 31 (1920), pp 181–289; Scott, op cit in n 3, p 50, n 2, and the Award of the American-British Claims Arbitration Tribunal in the case of the Cayuga Indians (1926), RIAA, 6, pp 173, 176–7.
It is necessary to distinguish the situation in which, because a community does not qualify for recognition as a state, it is inappropriate to apply in relation to it the rules of international law. This is different from saying that the community is a state, but is outside the international community.
See generally on rules of morality, § 17.
15 See Jenks, BY, 22 (1945), pp 267–75, and The Prospects of International Adjudication (1964), pp 185–224; H Lauterpacht, International Law and Human Rights (1950), pp 12–26, and Collected Papers, (vol I, 1970), pp 137–41; Morelli, Hag R, 89 (1956), i, pp 557–83; Bastid in Festschrift für Spiropoulos (1957), pp 35–42; Broches, Hag R, 98 (1959), iii, pp 316–38; Dupuy, Hag R, 100 (1960), ii, pp 529–61; Pescatore, Hag R, 103 (1961), ii, pp 27–52; Weissberg, The International Status of the United Nations (1961); Seyersted, Objective International Personality of Intergovernmental Organisations (1963); El Erian, YBILC (1963), ii, pp 179–84, and ibid (1967), ii, pp 137–8; O’Connell, RG, 67 (1963), pp 24–35; Seyersted, Nordisk TA, 34 (1964), pp 46–61, Indian JIL, 4 (1964), pp 1–74, and Acta Scandinavica, 34 (1964), pp 3–112; Quadri, Hag R, 113 (1964), iii, pp 423–33; Bishop, Hag R, 115(1965), ii, pp 261–8; UN Secretariat’s Study of Practice (1967), reproduced in YBILC (1967), ii, pp 207–22, 299–302; Whiteman, Digest, 13 (1968), pp 10–28; Ginter, Die Völkerrechtliche Verantwortlicheit internationaler Organisationen gegenüber Drittstaaten; Mosler, Hag R, 140 (1974), iv, pp 50–53, 66–7; Tunkin, Theory of International Law (1974), pp 357–65, and Hag R, 147 (1975), iv, pp 198–206; Bowett, The Law of International Institutions (4th ed, 1982), ch 11; Barberis, Hag R, 179 (1983), i, pp 213–38; Seidl-Hohenveldern, Corporations in and under International Law (1987), pp 69–108. See also § 596, as to the treaty-making capacity of international organisations generally, and also with particular reference to the capacities and competences of the EEC in matters of external relations.
16 In addition to certain rights and capacities to be enjoyed by the UN within the domestic legal systems of states and the right to present international claims as affirmed in the Reparations case, the UN’s international personality finds expression in its general possession of ‘juridical personality’ (Art 1 of the Convention on Privileges and Immunities of the United Nations 1946: that personality is not limited to matters of private law), the capacity to conclude international agreements with states — including non-member states — and other international organisations, and the power to exercise direct jurisdictional and legislative powers (see Art 81 of the Charter; and note also certain powers vested in the UN under the Treaty of Peace with Italy 1947 in relation to Trieste (§ 96, n 5)); certain powers in relation to West New Guinea (West Irian) under GA Res 1752 (XVII) (1962), UNYB (1962), pp 124–7; and the powers of the UN Council for Namibia (§ 88, n 20).
5 The status of Trieste after the Second World War was special. Trieste was formerly under Italian sovereignty. The Treaty of Peace with Italy 1947 terminated Italian sovereignty over Trieste, and established the Free Territory of Trieste, under a Permanent Statute. This laid down that the territory should be demilitarised and declared neutral; that no armed forces, except upon direction of the Security Council, should be allowed; and that the Government of the Free Territory should not make or discuss any military arrangements or undertaking with any state: TS No 50 (1948), Arts 21 and 22, and Annexes VI-IX. The responsibility of ensuring the independence and integrity of the Free Territory and of appointing a governor (as required by the statute) was accepted by the Security Council in 1947, but the Council was unable to agree upon a governor: see UNYB (1947–48), pp 352–3; Schachter, BY, 25 (1948), pp 96–8. The Permanent Statute could thus not be put into effect. Alternative practical arrangements were made for the Free Territory in 1954 by which Italy and Yugoslavia each assumed responsibility for separate zones of the Free Territory: the ‘practical arrangements’ were set out in a memorandum concluded between Italy, the UK, the USA and Yugoslavia, which did not purport to amend the Peace Treaty. See UN Doc S/3301; BFSP, 161 (1954), pp 419–26. The Soviet Union stated that it took cognisance of the memorandum: UN Doc S/3305. By a treaty concluded in 1975 Italy and Yugoslavia abandoned their residual claims to the zone administered by the other: see RG, 80 (1976), pp 949–51, and 81 (1977), p 1177, and Caggiano, Ital YBIL, 2 (1976), pp 248–72; Vukas, AFDI, 22 (1976), pp 77–95; Udina, RG, 83 (1979), pp 301–49. See generally Leprette, Le Statut international de Trieste (1949); Udina, RIF, 16 (1947), pp 161–75; Gervais, RG, 51 (1947), pp 134–54; Kelsen, YB of World Affairs (1950), pp 174–90; Hannum, Autonomy, Sovereignty and Self-Determination (1990), pp 400–6; and, as to human rights under the Trieste settlement, see § 428, n 3. Italian courts were inclined to the view that the termination of Italian sovereignty did not take effect while the Permanent Statute was not effective and that courts in Trieste remained Italian courts, and that marriages there had not taken place in foreign territory: see Case of Solazzi and Pace, AJ, 49 (1955), p 423, and other cases cited in ibid, p 268, and AJ, 51 (1957), p 434. For the view that Italy’s powers over Trieste under the 1954 Memorandum did not amount to sovereignty see the decision of the Council of State in Sotietà Teatro Puccini v Commissioner-General of the Government for the Territory of Trieste (1961), ILR, 40, p 43. But cf Cernorograz and Zudich v INPS (1978), ILR, 77, p 627, in which the Court of Cassation held that the 1954 arrangements amounted to a provisional distribution of effective sovereignty over the zones of Trieste to Italy and Yugoslavia respectively, which was made permanent and confirmed by the treaty concluded in 1975.
20 GA Res 2248 (S-V); see also GA Res 2325 (XXII) (1967), 2372 (XXIII) (1968). In 1972 the Council was increased from 11 to 18 members: GA Res 3031 (XXVII). The Council issued travel documents to persons belonging to Namibia, and concluded agreements concerning the recognition of these documents (eg with Tanzania, UN Doc A/AC 131/29; and see also UN Juridical YB (1973), pp 18, 21). See generally UN Juridical YB (1967), p 309 and (1982), pp 164–70; Engers, AJ, 65 (1971), pp 571–8.
In order to enable the Council’s work to be carried out more effectively the General Assembly in 1970 established a UN Fund for Namibia to provide comprehensive assistance to the people of the territory: see GA Res 2679 (XXV) (1970) and SC Res 283 (1970). The Council for Namibia acted as trustee of the Fund and administered and managed it. See generally Osieke, BY, 51 (1980), pp 189, 192–6; Zacklin, Hag R, 171 (1981), ii, pp 308–27.
With the attainment of independence by Namibia in 1990 (n 48), the Council recommended that it be dissolved: this was done by GA Res 44/243, of 11 September 1990.
18 Ibid. As international personality is not limited to states, the latter are bound to fulfil international duties — ie duties prescribed by general international law — not only in relation to other states but, in proper cases, to international persons generally. This explains why in the Reparation for Injuries case the ICJ held that the UN was entitled to bring a claim also against a non-member state although in the same case the Court held that the basis of the claim by the UN is a breach of a duty due to it. For, once the Court found that the UN was endowed by the Charter with international personality not only in relation to its members but erga omnes (ibid, p 185), it followed that all states — whether members of the UN or not — owed it duties as prescribed by general international law. Sed quaere. See Fitzmaurice, BY, 29 (1952), p 21. Note also the observations of the Federal German Constitutional Court on the non-statal character of the European Community: Application of Frau Kloppenburg  3 CMLR 1, 18.
While the Court has thus held the UN vested with certain attributes of international personality erga omnes, there is a question whether such a conclusion should also follow in relation to an organisation of a less primary and universal character, and thus whether non-members of such a more limited organisation are under any obligation to recognise its international personality.
20 It is legitimate to deduce from the unanimous finding of the Court in the Reparation for Injuries case that international personality is a necessary attribute of any public international organisation which possesses a personality distinct from its members and whose rights and duties, in the light of its constitution and practice, are such that they cannot be effective without the attribution of international personality to the organisation in question: ICJ Rep (1949), pp 178, 180.
21 The question was much discussed in the context of the question whether the member states of the International Tin Council were liable for the debts of the Council, which question was answered in the negative by the English courts, on the ground that in English law (by virtue of an Order in Council and not by virtue directly of the relevant treaty provision) the Council had a separate legal capacity to conclude contracts and that therefore only the Council, and not its member states, could be held liable on its contracts: Machine Watson & Co Ltd v Department of Trade and Industry  3 All ER 523 (House of Lords). See for a somewhat similar distinction between an international organisation and its member states, Confédération Française Democratique du Travail v European Communities, YBECHR (1978), p 530. The Tin Council litigation was extensive, and involved several distinct issues: for the decision of the Court of Appeal on the main issues, affirmed by the House of Lords, see the same parties,  3 WLR 1033. See also, on other aspects of the litigation, the decisions of the Court of Appeal in Maclaine Watson & Co Ltd v International Tin Council  3 WLR 1169; and In re International Tin Council  3 WLR 1159. For comment on the various stages of the litigation see Eisemann, AFDI, 31 (1985), pp 730–46; Sands, Neth IL Rev, 34 (1987), pp 367–91; Herdegen, ZöV, 47 (1987), pp 537–57, and Neth IL Rev, 35 (1988), pp 135–44; Cheyne, ICLQ, 36 (1987), pp 931–5, 38 (1989), pp 417–24, and 39 (1990), pp 945–52; Kullman, Germ YBIL, 30 (1987), pp 205–23; SeidlHohenveldern, ibid, 32 (1989), pp 43–54; Greenwood, BY, 60 (1989), pp 461–75, 477–9; Lewis, State and Diplomatic Immunity (3rd ed, 1990), pp 166–81. See also Westland Helicopters Ltd and Arab Organisation for Industrialization et al (1982–5), ILR, 80, p 596, and Arab Organisation for Industrialization v Westland Helicopters Ltd (1987), ibid, p 622..
See also, as to the recognition in English law of the legal personality of an international entity of which the UK was not a member and which was not established in the UK, but which was created a corporate body in a foreign state recognised by the UK, Arab Monetary Fund v Hashim (No 3)  2 WLR 729; and, generally on this point, UKMIL, BY, 49 (1978), pp 346–8; Seidl-Hohenveldern, Corporations in and under International Law (1987), pp 100–104. See also Bumper Development Corp. v Commissioner of Police of the Metropolis, The Times, 14 February 1991. These various cases leave open the question whether legal personality will be recognised in English law if it flows solely from customary international law (the position of a foreign state suggests that it might be recognised) or from incorporation under the laws of a territorial entity not recognised as a state (as to which see § 56, nn 27–32). As to the history of the personality of international organisations in English law, see Marston, ICLQ, 40 (1991), pp 403–24.
27 See Luther v Sagor  1 KB 456. In consequence of the refusal of the USA to recognise the annexation of the Baltic Republics by Soviet Russia in 1939 the US courts declined to give effect to the decrees of the authorities in the annexed territories or to issue letters rogatory to them. See Briggs, AJ, 37 (1943), pp 585–96; The Kotkas, AD, 10 (1941–42), No 15; The Signe, ibid, Nos 16 and 19; The Maret (1944) F (2d) 431. See also Latvian State Cargo and Passenger Line v Clark, AD, 15 (1948), No 16; Latvian State Cargo and Passenger Line v McGrath, ILR, 18 (1951), No 27; Latvian State Cargo and Passenger Line v US, ILR, 20 (1953), p 193; Re Kovas’ Estate (1958), ILR, 26, p 76; Re Mitzkel’s Estate (1962), ILR, 33, p 43; Re Luk’s Estate (1965), ILR, 35, p 62. See also to the same effect the decision of the High Court of Eire in The Ramava, AD, 10 (1941–42), No 20; of French courts in Héritiers Bouniatian v Soc Optorg, Clunet, 51 (1924), p 133, and Jellinek v Lévy (1940), RG, 51 (1947), p 250; and of a Moroccan court in Attorney-General v Salomon Toledano (1963), ILR, 40, p 40. See also Johnson v Briggs Inc, AD, 9 (1938–40), No 33, as to decrees of the unrecognised regime in Austria after the Anschluss; and § 55, n 7, as to decisions by UK courts concerning acts of the illegal regime in Southern Rhodesia.
22 See § 596.
23 See § 145, n 2.
2 The international responsibility of international organisations will be covered in the projected vol III of this work. The matter is important not just in relation to international organisations but also, indirectly, in relation to states, since developments in the law relating to the responsibility of international organisations will affect also the law relating to the responsibility of states.
The international responsibility of international organisations is discussed by Wright, AJ, 43 (1949), pp 95–104; Eagleton, Hag R, 76 (1050), i, pp 387–421; Eustathiades, Hag R, 84 (1953), iii, pp 397–627; Parry, Hag R, 90 (1956), ii, pp 714–21; Garcia Amador, Hag R, 94 (1958), ii, pp 409–13; de Visscher, Hag R, 102 (1961), i, pp 480–88; Pescatore, Hag R, 103 (1961), ii, pp 67–74, 210–36; Ritter, AFDI (1962), pp 427–56; YBILC (1963), ii, pp 181–2; ibid (1967), ii, pp 218–22, 302; Ginther, Die völkerrechtliche Verantwortlichkeit internationaler Organisationen gegenüber Drittstaaten (1969); Bowett, The Law of International Institutions (4th ed, 1982), pp 362–5; Meng, ZöV, 45 (1985), pp 324–55; Gonzalez, RG, 92 (1988), pp 63–102.
As to the responsibility of member states of an international organisation for the organisation’s acts, despite its independent legal personality, see Seidl-Hohenveldern in Festschrift für Hermann Mosler (1983), pp 881–90, and the litigation in the UK concerning the liabilities of the International Tin Council, particularly the decision of the House of Lords in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry  3 WLR 969, holding the member states not liable on an organisation’s contracts (see § 7, n 21).
See also § 150, n 22 as to claims by international organisations.
24 See § 465, n 2, and p 1071.
2 International organisations may possess a degree of international personality, and this may, in particular cases, involve the possession of the right of legation. It will depend on the constitution and nature of each organisation whether it possesses the right of legation, and if so to what extent.
25 See § 289.
The first General Assembly approved the emblem of the UN for its official seal, and recommended that legislation should be passed by members to prevent its use for commercial purposes by means of trade marks or commercial labels as well as the use of the official seal and of the name of the UN, and of abbreviations of that name through the use of initial letters: Res 92 (I) (1946). See also UN Juridical YB (1965), p 221; ibid (1970), pp 168–9; ibid (1973), pp 136–8; ibid (1976), pp 176–7; and ibid (1977), pp 188–91. In Res 167 (II) (1947) the General Assembly adopted a UN flag, and pursuant to the Assembly’s request the Secretary-General later that year promulgated a Flag Code which provided: (a) that the flag of the UN shall not be subordinate to any other flag; (b) that it shall be flown from all buildings, offices and official residences designated as such by the UN; (c) that it shall be used by any unit acting on behalf of the UN such as the Military Staff Committee. See Fawcett, ILQ, 3 (1950), p 279. By a Resolution of the Security Council adopted in 1950 the forces operating in Korea were given the name and the flag of the UN. See Baxter, BY, 29 (1952), pp 332–7. The UN flag was also used by eg the UN Security Force in West New Guinea (West Irian) (see paragraph 7(b) of the Secretary-General’s General Directive, UN Juridical YB (1964), p 36), the UN force in the Congo (UNTS, 414, p 229, para 26), and the UN force in Cyprus (ibid, 492, p 57, para 20). As to the use of the UN flag in trust territories see GA Res 325 (IV) (1949).
26 See Art 65 of the Statute of the ICJ, and Art 96.2 of the Charter of the UN. A list of the organs and agencies authorised to request advisory opinions is given in the annual vols of the YB of the ICJ.
27 The creation of the European Communities has thus involved, at a regional level, a notable concession of sovereign powers by member states and a degree of supranationality for the Communities. The transfer of sovereign powers from the member states to the Communities and the pooling of sovereignty involved in membership of the Communities are, however, limited by the ultimate possibility of withdrawal from the Communities: so long as that possibility remains, any transfer of powers from states to the organisations is in the last analysis essentially temporary. Furthermore, such transfer or pooling of sovereign powers as has taken place is limited to the fields, mainly economic, which are covered by the European Communities: they do not, accordingly, involve such matters as defence and foreign policy generally. For matters not falling within the scope of the Communities’ powers the member states have developed separate procedures of political cooperation, through which they cooperate outside the framework of the Community Treaties. See Report on European Political Cooperation, agreed by the Foreign Ministers of the European Communities on 13 October 1981 (Cmnd 8424); and Art 30 (Title III) of the Single European Act 1986 (ECT No 12 (1986); ILM, 25 (1986), p 503). And see van der Meersch, Hag R, 148 (1975), v, pp 1–433; Charpentier, AFDI, 25 (1979), pp 753–78; Perrakis, AFDI, 34 (1988), pp 807–22; and Crotty v An Taoiseach  2 CMLR 666, on which see O’Connor, AFDI, 33 (1987), pp 762–73, and Lang, CML Rev, 24 (1987), pp 709–18.
The so-called ‘supranationality’ of the European Communities has been much discussed, particularly in the context of the direct applicability and supremacy of Community law, as to which see § 19, nn 81, 88–9, respectively. The development of its international competences has owed much to decisions of the European Court of Justice in the context of the respective treaty-making powers of the Communities and their member states. The European Court has held that the ‘Community constitutes a new legal order of international law’: van Gend en Loos v Nederlandse Administratie der Belastingen  ECR 1.
81 The direct effect of Community law within the member states, and the relationship generally between Community law and the national laws of the member states, are the subject of an extensive literature, to be found in specialised works on European Community law.
88 Costa v ENEL  ECR 585; Walt Wilhelm v Bundeskartellamt  ECR 1; Amministrazione delle Finanze dello Stato v Simmenthal (No 2)  ECR 629 (and see comment by Carreau, Revue trimestrielle de droit européen, 14 (1978), pp 381–418).
28 See generally Lador-Lederer, International Non-Governmental Organisations (1963); White, International Non-Governmental Organisations: Their Purposes, Methods and Accomplishments (1968); H Lauterpacht, Collected Papers (vol 1, 1970), p 140, n 8; Benvenuti, Ital YBIL, 4 (1978–79), pp 84–102; Brownlie, Principles of Public of International Law (4th ed, 1990), pp 68–9; Schermers, International Institutional Law (2nd ed, 1980), pp 15–18, 107–11.
29 See eg n 31.
31 Such arrangements have been made pursuant to the Council’s Res 1296 (XLIV) (1968), superseding the criteria for consultative arrangements set out in Res 288B (X) (1950). By Res 3 (II) (1946) the Council established a Standing Committee on NGOs, with 19 members (Res 1981/50 (1981)) elected for a term of four years (Res 70 (ORG-75) (1975)). A list of NGOs in consultative status with the Council is to be found in the annual volumes of the UNYB, eg 36 (1982), pp 1243–51. Such NGOs may send observers to public meetings of the Council and its commissions, with certain rights to submit views in writing and in some cases orally. Representatives of NGOs attending meetings pursuant to these arrangements are entitled to no privileges and immunities, although s 11 of the Headquarters Agreement with the USA provides for their freedom of access to the Headquarters district.
33 See Friedmann, The Changing Structure of International Law (1964), pp 181–4, 213–31; Seidl-Hohenveldern, Corporations in and under International Law (1987), pp 109–22. On the status of international associations and especially on the Belgian Law of 25 October 1919, granting to them a special status see Normandin in Répertoire, ii, pp 104–32. See also Bastid and others in Annuaire, 43 (1) (1950), pp 547–630, and 43 (2), pp 335–69. The Institute of International Law adopted in 1950 a resolution containing the project of a convention for the granting of international status to private international associations. The convention provides in particular for the treatment, in various respects, of such associations in a manner not less favourable than other non-profit-making associations within the territory of the contracting parties.
34 See Ijalaye, The Extension of Corporate Personality in International Law (1978); Schermers, International Institutional Law (2nd ed, 1980), pp 18–21. As to the law applicable to certain transactions of states, particularly in their dealings with private corporations, on essentially private law matters, see § 12, n 12.
12 Disputes between states and private corporations (often multinational corporations) often turn on what is the appropriate law applicable to the substance (as opposed to the lex arbitrationis), in the absence of a choice of law clause in the contract, or on the interpretation of such a clause where there is one, against the background of the national law of the state concerned. The choice of law clause might itself invoke general principles of law, or those principles might be applied by tribunals as providing the appropriate legal basis for the award. For discussion of the issues arising in this context see Jessup, Transnational Law (1956), pp 1–16; McNair, BY, 33 (1957), pp 1–19; F A Mann, BY, 33 (1957), pp 20–51, AJ, 54 (1960), pp 572–91, BY 42 (1967), pp 1–37, and Rev Belge, 11 (1975), pp 562–7; Verdross in Varia Juris Gentium (1959), pp 355–62; Jennings, BY, 37 (1961), pp 156–82; Hyde, Hag R, 105 (1962), i, pp 271, 288–331; Weil, Hag R, 12 (1969), iii, pp 95–240; Goldschmidt, Hag R, 136 (1972), ii, pp 203, 233–61 (and, generally, on transactions between states and public entities, and private firms, pp 203–330); Geiger, ICLQ, 23 (1974), pp 73, 80ff; UN Juridical YB, 1976, pp 159–76, esp. 160–1; Luzzatto, Hag R, 157 (1977), iv, pp 9, 87–100; Verhoeven, Rev Belge, 14 (1978–79), pp 209–30; Wengler, ibid, pp 415–24; Kuusi, The Host State and the Transnational Corporation (1979); Giardina, Ital YBIL, 5 (1980–81), pp 147–70; Delaume, AJ, 75 (1981), pp 784–819, especially pp 796–809; Greenwood, BY, 53 (1982), pp 27–81; Barberis, Hag R, 179 (1983), i, pp 189–206; Lalive, Hag R, 181 (1983), iii, pp 9–284; Redfern, BY, 55 (1984), pp 65–110, and Redfern and Hunter, International Commercial Arbitration (1986), esp. ch 2; Sacerdoti, Ital YBIL, 7 (1986–87), pp 26–49; Gray, Judicial Remedies in International Law (1987), pp 188–93; Bowett, BY, 59 (1988), pp 49, 50–9; Crook, AJ, 83 (1989), pp 278, 292ff; Paasivirta, BY, 60 (1989), pp 315–50.
See generally on transactions between states (and public entities) and foreign private parties, Böckstiegel, Der Staat als Vertragspartner Auslandischer Privatunternehmen (1971); Seidl-Hohenveldern, Lalive and van Hecke, Rev Belge, 11 (1975), pp 567–84; Sacerdoti, I contratti tra stati e stranieri nel diritto internazionale (1972); Bettems, Les Contrats entre Etats, et personnes privées étrangères (1988); Rigaux, Hag R, 213 (1989), i, pp 9, 207–37. See also § 408, n 14.
Cases in which these issues have fallen for decision include Petroleum Development Ltd v Sheikh of Abu Dhabi, ILR, 18 (1951), No 37, at p 149; Ruler of Qatar v International Marine Oil Co Ltd, ILR, 20 (1953), p 534; Saudi Arabia v Arabian American Oil Company, ILR 27 (1958), pp 117, 153–7, 165–72; Sapphire International Petroleum Ltd v National Iranian Oil Co (1963), ILR, 35, pp 136, 168–76, 182–3 (on which, and generally, see Lalive, ICLQ, 13 (1964), pp 987–1021); BP Exploration Co (Libya) Ltd v Government of the Libyan Arab Republic (1973–74), ILR, 53, p 297; Texaco Overseas Petroleum Co v Government of the Libyan Arab Republic (1975–77), ILR, 53, p 389; Libyan American Oil Co v Government of the Libyan Arab Republic (1977), ILR, 62, pp 140, 173–6; Re Revere Copper and Brass Inc and Overseas Private Investment Corpn (1978), ILR, 56, pp 258, 271ff; AGIP Spa v Government of the Popular Republic of the Congo (1979), ILR, 67, pp 319, 338; Government of Kuwait v American Independent Oil Co (1982), ILR, 66, pp 518, 559–62 (on which see Burdeau, AFDI, 28 (1982), pp 454–70); SPP (Middle East) Ltd v Arab Republic of Egypt (1983), ILM, 22 (1983), pp 752, 768–71 (reversed on grounds not relevant in the present context: ILM, 23 (1984), p 1048); Mobil Oil Iran Inc v Islamic Republic of Iran, AJ, 82 (1988), p 136.
For the view that certain provisions of the Vienna Convention on the Law of Treaties 1969 apply to concession agreements see BP Exploration Company (Libya) Ltd v Government of the Libyan Arab Republic (1973–74), above, at p 332. But note that in the Anglo-Iranian Oil Co Case, ICJ Rep (1952), p 93, the ICJ held that the concession contract between the company and Iran did not constitute a treaty. On the nature of concession agreements see § 408, n 12.
Article 13 of the Procedures for the Settlement of Disputes under Art XVIII of the Agreement of 1971 relating to the International Telecommunications Satellite Organisation and under Art 20 of the Operating Agreement of 1971 relating to that organisation provides for the arbitral tribunal to base its decisions only on those two 1971 agreements and on ‘generally accepted principles of law’. Note also Art 42 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965, on which see generally § 407, n 49. Article 42 requires the tribunal to apply, if the parties have not agreed the applicable law, the law of the state party to the dispute ‘and such rules of international law as may be applicable’.