AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW potx

AKEHURST’S MODERN
INTRODUCTION TO
INTERNATIONAL LAW


‘Professor Malanczuk has written a new edition of Michael Akehurst’s
textbook which maintains its high traditions of clarity, precision and
coherence. The new edition, more detailed and more widely referenced,
will appeal to a wider audience of students than its predecessor, while
still satisfying the needs of those seeking an accessible introduction to
International Law, whether lawyers or not.’
Colin Warbrick, University of Durham
First published in 1970, A Modern Introduction to International Law
rapidly established itself as the most widely used and successful textbook
in its field. It covers a variety of topics from diplomatic immunity to
human rights and from recognition of governments to war crimes. This
new edition is now completely revised and updated to take account of
many new developments and includes additional chapters on human
rights, state responsibility, the environment and the economy.
Akehurst’s Modern Introduction to International Law is ideal for
students concerned with the relationship between international politics
and international law and provides clear and authoritative guidance
through a complex and ever changing field of study.
Peter Malanczuk is Professor of International Law at the Law Faculty
of Erasmus University Rotterdam.



AKEHURST’S MODERN
INTRODUCTION TO

INTERNATIONAL LAW
Seventh revised edition


Peter Malanczuk
Assessor iur., Dr. iur.,
Professor of International Law, Law Faculty, Erasmus University
Rotterdam,
Former Legal Assistant to the President of the Iran-United States
Claims Tribunal,
Counsel, Lalive & Partners, Attorneys-at-Law, Geneva,
Member, Tianjin Board of Arbitration, China





London and New York
First published in 1970 by HarperCollins Academic
Second edition 1971
Third edition 1977
Fourth edition 1982
Fifth edition 1987
Sixth edition 1987

Simultaneously published in the USA and Canada
by Routledge
29 West 35th Street, New York, NY 10001

Seventh edition 1997

Routledge is an imprint of the Taylor & Francis Group
This edition published in the Taylor & Francis e-Library, 2002.

© 1997 Routledge

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any
form or by any electronic, mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information storage or retrieval system,
without permission in writing from the publishers.

British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data
A catalog record for this book is available from the Library of Congress

ISBN 0-415-16553-9 (hbk)
ISBN 0-415-11120-X (pbk)
ISBN 0-203-42771-8 Master e-book ISBN
ISBN 0-203-73595-1 (Glassbook Format)

Contents

Preface xiii
Abbreviations xvii
1 Introduction 1
The problem of defining international law 1
General and regional international law 2
Characteristics of international law 3

International law as ‘law’ 5
The scope of international law 7
2 History and theory 9
The formation of European international law 10
Features of European international law in state practice after 1648 11
Colonization and the relation to non-European powers 12
The Western hemisphere 14
Theory: naturalists and positivists 15
The theory of sovereignty 17
Legal results of the period up to the First World War 18
The unlimited right to use force 19
The peaceful settlement of disputes 20
Prohibition of the slave trade 21
Humanization of the law of warfare 21
First forms of international organizations 22
The Hague Peace Conferences of 1899 and 1907 22
The watershed after the First World War 23
The League of Nations 23
The attempt to restrict the use of force 24
Other functions of the League 24
The Permanent Court of Justice 24
Failure of the League system 25
Development after the Second World War 26
The prohibition of the use of force and collective security in the United
Nations Charter 26
Decolonization and change in the composition of the international
community 28
Attitudes of Third World states towards international law 28
Universality and the challenge to the unity of international law 30
New developments in theory 32

vi CONTENTS
3 Sources of international law 35
Treaties 36
Law-making treaties and ‘contract treaties’ 37
Parties to international treaties and ‘internationalized contracts’ 38
Custom 39
Where to look for evidence of customary law 39
The problem of repetition 41
What states say and what states do 43
The psychological element in the formation of customary law (opinio iuris) 44
‘Instant’ customary law 45
Universality and the consensual theory of international law 46
General principles of law 48
Judicial decisions 51
Learned writers 51
Other possible sources of international law 52
Acts of international organizations 52
‘Soft’ law 54
Equity 55
The hierarchy of the sources 56
Ius cogens 57
Obligations erga omnes and ‘international crimes’ 58
Codification of international law 60
4 International law and municipal law 63
Dualist and monist theories 63
The attitude of international law to municipal law 64
The attitude of national legal systems to international law 65
Treaties 65
Custom and general principles 68
Conclusions 71

Public international law and private international law 71
5 States and governments 75
States 75
Defined territory 75
Population 76
Effective control by a government 77
Capacity to enter into relations with other states 79
Self-determination and recognition as additional criteria 80
Federal states 81
Governments 81
Recognition of states and governments in international law 82
Recognition of states 82
Legal effects of recognition in international law 83
Legal effects in domestic law 86
Recognition of governments 86
De jure and de facto recognition 88
CONTENTS vii
6 International organizations, individuals, companies and groups 91
International organizations 92
Non-governmental organizations (NGOs) 96
Individuals and companies 100
Insurgents and national liberation movements 104
Ethnic minorities and indigenous peoples 105
Minorities 105
Indigenous peoples 106
7 Jurisdiction 109
Forms of jurisdiction 109
Criminal jurisdiction of national courts 110
Territorial principle 110
Nationality principle 111

Protective principle 111
Universality principle 112
Universal jurisdiction of national courts over crimes against human rights 113
‘Ivan the Terrible’ —The trial of John Demjanuk 115
Conflicts of jurisdiction 116
Extradition 117
8 Immunity from jurisdiction 118
Sovereign (or state) immunity 118
The act of state doctrine 121
Diplomatic immunity 123
Immunity from the jurisdiction of courts 125
Other privileges and immunities 126
Consular immunity 127
Immunities of international organizations 127
Waiver of immunity 128
9 Treaties 130
Conclusion and entry into force of treaties 131
Adoption of the text of a treaty 131
Consent to be bound by a treaty 131
Entry into force 134
Reservations 135
Registration 136
Application of treaties 137
Territorial scope of treaties 137
Treaties and third states 137
Application of successive treaties relating to the same subject matter 137
Invalid treaties 137
Provisions of municipal law regarding competence to conclude treaties 138
Treaties entered into by persons not authorized to represent a state 138
Specific restrictions on authority to express the consent of a state 139

Coercion of a representative of a state 139
Coercion of a state by the threat or use of force 139
Other causes of invalidity 140
viii CONTENTS
The consequences of invalidity 140
Termination of treaties 141
Termination in accordance with the provisions of a treaty 141
Termination by consent of the parties 141
Implied right of denunciation or withdrawal 142
Termination or suspension of a treaty as a consequence of its breach
(discharge through breach) 142
Supervening impossibility of performance 144
Fundamental change of circumstances (rebus sic stantibus) 144
Emergence of a new peremptory norm (ius cogens) 145
Outbreak of war 145
Consequences of termination or suspension 146
10 Acquisition of territory 147
Modes of acquisition of territory 147
Cession 148
Occupation 148
Prescription 150
Operations of nature 151
Adjudication 151
Conquest 151
Acquiescence, recognition and estoppel 154
Intertemporal law 155
Legal and political arguments 157
Minor rights over territory 158
Servitudes 158
11 Legal consequences of changes of sovereignty over territory

(state succession) 161
Treaties 162
Treaties dealing with rights over territory 162
Other types of treaties 163
The principle of ‘moving treaty boundaries’ 163
Decolonization and new states 164
Recent practice 165
Secession 165
Baltic states 165
Dismemberment 166
Soviet Union 166
Yugoslavia 167
Czechoslovakia 167
Unification 167
Germany 167
Yemen 168
International claims 169
Nationality 169
Public property 169
Private property 170
Contractual rights 170
CONTENTS ix
12 The law of the sea 173
Internal waters 175
Territorial sea 176
The right of innocent passage 176
Rights of the coastal state over the territorial sea 177
The width of the territorial sea 178
The line from which the territorial sea is measured 180
The contiguous zone 182

Exclusive fishery zones and exclusive economic zones 183
The high seas 184
Interference with ships on the high seas 186
Jurisdiction of municipal courts over crimes committed on the high
seas 190
The continental shelf 191
The deep seabed 193
Maritime boundaries 195
13 Air space and outer space 198
Air space 198
Outer space 201
The ‘common heritage of mankind’ principle 207
14 Human rights 209
The concept of human rights 209
Human rights on the universal level 211
The United Nations Charter 211
The Universal Declaration of Human Rights 212
United Nations bodies active in the field of human rights 213
The 1966 Covenants 215
Other human rights instruments on the universal level 216
Human rights on the regional level 217
The European Convention for the Protection of Human Rights and
Fundamental Freedoms 217
Other regional instruments 219
Human rights as a matter of international concern 220
15 Economy 222
The Bretton Woods system and international economic organizations 223
The International Monetary Fund (IMF) 225
The World Bank 227
The GATT 228

The new World Trade Organization 231
The trade agreements on goods 231
The Agreement on Services (GATS) 232
The Agreement on Intellectual Property Rights (TRIPS) 232
Institutional aspects 233
Developing countries and the legal quest for a New International Economic
Order 233
Expropriation and standard of compensation 235
x CONTENTS
Disguised expropriation 238
Expropriation of contractual rights 238
The right to development 239
16 Environment 241
The scope and nature of international environmental law 242
Customary law and general principles 245
The United Nations Conference on Environment and Development 247
The Convention on Climate Change 248
The Biodiversity Convention 249
The Rio Declaration and Agenda 21 250
Conclusions 251
17 State responsibility 254
The work of the International Law Commission 254
State responsibility and the treatment of aliens 256
‘Imputability’ 257
The minimum international standard 260
Preliminary objections 262
Nationality of claims 263
Exhaustion of local remedies 267
Waiver 268
Unreasonable delay and improper behaviour by the injured

alien 269
Consequences of an internationally wrongful act 269
Countermeasures and dispute settlement 271
18 Peaceful settlement of disputes between states 273
Diplomatic methods of dispute settlement 275
Negotiations 275
Good offices and mediation 275
Fact-finding and inquiry 277
Conciliation 278
Legal methods of dispute settlement 281
Adjudication 281
The International Court of Justice 281
Composition 282
Jurisdiction in contentious cases 282
Procedure 287
Ad hoc chambers 288
Enforcement of judgments 288
Advisory opinions 289
Evaluation of the Court 290
Arbitration 293
ICSID 295
The Iran-United States Claims Tribunal 296
Settlement of disputes under the Law of the Sea Convention 298
Conclusions 300
CONTENTS xi
19 International wars, civil wars and the right to self-determination:
ius ad bellum 306
Lawful and unlawful wars: developments before 1945 306
The prohibition of the use of force in the United Nations
Charter 309

Self-defence 311
Preventive self-defence 311
Self-defence and claims to territory 314
Self-defence against attacks on ships and aircraft 315
Armed protection of nationals abroad 315
Armed reprisals 316
Immediacy and proportionality 316
Collective self-defence 317
Civil wars 318
The legality of civil wars 318
Participation by other states: help for the insurgents 319
Participation by other states: help for the established authorities 322
The theory that help for the established authorities is legal 322
The theory that help for the established authorities is illegal 323
Collective self-defence against subversion 324
Conclusion 325
Self-determination and the use of force 326
Mandated territories, trust territories and non-self-governing
territories 327
Mandated territories 327
Trust territories 328
South West Africa (Namibia) 328
Non-self-governing territories 329
Double standards? 332
Consequences of violations of the right of self-determination 334
Creation of new states 334
Title to territory 334
Wars of national liberation 336
New developments 338
The effectiveness of the modern rules against the use of force 341

20 Means of waging war and criminal responsibility: ius in bello 342
Lawful and unlawful means of waging war 342
Nuclear weapons 346
The law of neutrality and economic uses of maritime warfare 350
Reprisals 351
Rules governing the conduct of civil wars 352
War crimes trials 353
The International Criminal Tribunal for the Former Yugoslavia 355
Jurisdiction of the Tribunal 356
The work of the Tribunal 358
The Rwanda Tribunal 360
Towards a permanent international criminal court? 360
Possible future developments 361
xii CONTENTS
21 The Charter and the organs of the United Nations 364
The United Nations Charter and the problem of interpretation 364
Literal interpretation 365
Intention and travaux préparatoires 366
Practice 366
Effectiveness and implied powers 367
The purposes of the United Nations 368
Domestic jurisdiction 368
Membership 369
The representation of China 371
The case of Yugoslavia 372
The organs of the United Nations 373
The Security Council 373
The General Assembly 377
The Secretariat 380
The Economic and Social Council and the specialized agencies 382

22 The United Nations and peace and security 385
Pacific settlement of disputes under the United Nations Charter (Chapter VI) 385
Collective security and enforcement action (Chapter VII) 387
Practice under Chapter VII during the Cold War 390
The United Nations force in Korea 391
The Uniting for Peace Resolution 392
Rhodesia and South Africa 393
Practice under Chapter VII after the end of the Cold War 395
The invasion of Kuwait by Iraq 396
The Kurdish crisis 399
Somalia 402
Rwanda 405
Haiti 407
Yugoslavia 409
UN peacekeeping 416
The ‘old’ peacekeeping during the Cold War 416
The first United Nations Emergency Force in the Middle East (UNEF) 417
The United Nations Force in the Congo (ONUC) 418
The Expenses case 420
The United Nations Force in Cyprus (UNFICYP) 420
New forces in the Middle East 422
New forms of peacekeeping after the Cold War 423
Conclusion 425
Table of cases 431
Table of treaties, declarations and other documents 435
Index 441

Preface

A Modern Introduction to International Law by the late Professor

Michael Akehurst was first published in 1970. Passing through six
editions, it became a classic among student textbooks within
departments of law and political science alike and it has been translated
into Spanish, Portuguese, Japanese and Chinese. Since the last edition
in 1987, however, due to the author’s death, the text has been merely
reprinted without change and, in view of the manifold new
developments in international law and international relations in the
ten years that have passed since the sixth edition, especially after the
end of the Cold War, it became outdated. While I have therefore sought
to build upon the solid groundwork laid by Dr Akehurst (who,
unfortunately, I did not know personally) and to retain his clarity of
style and unique focus on the interrelationship between legal theory
and political practice, I found it necessary to subject the contents and
structure of the book to a thorough scrutiny, reorganization and some
enlargement, including additional chapters on important new branches
of international law. But I would like to record my deep respect to
Michael Akehurst who contributed much to education and to the study
of international law, also by means of many other masterly publications
which he wrote, and who, in a collection of essays dedicated to his
memory, has been described by his British colleagues as ‘one of the
most gifted international lawyers of his generation’.
1
In preparing a revised and updated new version of the book, I have
tried to produce an edition that will meet the needs of students and
other readers for an introduction to international law, as well as providing
a more comprehensive account than the previous edition of the general
scope of the subject as it stands today, although I have become acutely
aware of the difficulty of trying to achieve this within a single book that
should not become too long. At the same time, by incorporating more
systematic and extensive references, it has been designed to serve as a

point of departure for more advanced study and for research. The revised
text aims at a broader and somewhat more cosmopolitan audience by
drawing upon a variety of legal systems, perspectives and also on literature
in languages other than English. The conceptual approach is based upon
a historical perspective of international law and emphasizes its dynamic
nature as a process which evolved from its limited European origins to a
universal system and is characterized by the strong impact of power
relations, as well as by the diversity of the national legal systems, cultures,
and political and economic structures with which it interacts.
Compared with the sixth edition, too many changes as regards
1 V.Lowe (ed.), The United Nations and
Principles of International Law: Essays
in Memory of Michael Akehurst, 1994.
xiv PREFACE
arrangement and treatment have been made for these divergencies to be
enumerated in all their detail. But there are a number of alterations
concerning the structure and contents of the book which should be
mentioned. In Chapter 1, I have included a discussion of the problem of
defining international law, of the concepts of general and regional
international law, of the special characteristics of international law as a
decentralized legal system and have given an indication of the ever-increasing
scope of international law with regard to the subject matters it covers.
Chapter 2 has been rewritten and much expanded by giving a condensed
systematic overview of the historical phases of the development of
international law. Chapter 3 on the sources of international law now starts
with an explanation of the concept of legal sources and it has been revised
in many parts, taking into account the recent literature and decisions, such
as the 1996 Advisory Opinion of the International Court of Justice on the
legality of nuclear weapons. Sections have also been added addressing the
concepts of ‘soft law’, obligations erga omnes and international crimes. In

Chapter 4 on international law and municipal law, I have added a brief
explanation of the relevant dualist and monist theories and reduced the
previous emphasis on English law by referring also to other legal systems,
including the United States, European continental legal systems and the
constitutional reforms in Russia and Eastern Europe. Chapter 5 on states
and governments explains the criteria of a state in more detail than the
previous edition and includes a discussion of the experience of the break-
up of Yugoslavia in connection with the problem of the recognition of states.
In Chapter 6, dealing with international organizations, individuals and
companies, Michael Akehurst had also included human rights and the
concept of nationality, and in the following Chapter 7 he had discussed
the treatment of aliens, including expropriation, the nationality of claims,
and other preliminary objections, such as the local remedies rule. In view
of the development of international law, I decided to adopt a different
approach. The increasing importance of the protection of human rights
on the international level has made it imperative to add a separate and
expanded chapter on the topic (Chapter 14). Nationality, the treatment
of aliens (except for expropriation of foreign property) and preliminary
objections are now dealt with in a new Chapter 17 on state responsibility
for internationally wrongful acts within the framework of the International
Law Commission’s attempt to codify the law in this area. This
rearrangement was also chosen because of the close connection of the
topic to the methods of dispute settlement, which are treated in Chapter
18. Expropriation of foreign property, on the other hand, seemed to fit
better into a new chapter on international economic law which I have
also added (Chapter 15).
Chapter 6, therefore, is now limited to a discussion of the legal personality
of entities other than states in international law. This provided room for a
more detailed treatment of international organizations, individuals and
companies and to include new parts on the role of non-governmental

organizations, insurgents and national liberation movements, and ethnic
minorities and indigenous peoples. In Chapter 7 on jurisdiction, I have
submitted a more detailed discussion of the concept of universal criminal
PREFACE xv
jurisdiction, and added new parts on universal jurisdiction of national
courts over crimes against human rights (with special reference to recent
US practice), on the illuminating case of ‘Ivan the Terrible’, and some
more reference to the problem of the exercise of extraterritorial
jurisdiction, as, for example, in the case of the 1996 US Helms-Burton
Act. The general order and content of the following chapters on immunity
from jurisdiction (Chapter 8), treaties (Chapter 9) and acquisition of
territory (Chapter 10) have remained largely the same as that written by
Michael Akehurst. In Chapter 11 on state succession, changes were made
to give a more systematic overview of the complicated topic and by adding
text on the principle of ‘moving treaty boundaries’, as well as on recent
practice with regard to the secession of the Baltic States, the
dismemberment of the Soviet Union, Yugoslavia and Czechoslovakia
and the unification of Germany and Yemen. The main changes in Chapter
12, dealing with the law of the sea, reflect the entry into force of the
1982 Law of the Sea Convention and the modification of the controversial
deep seabed mining regime in 1994. Chapter 13 on air law and the law
governing outer space has been expanded to provide a more detailed
account of these relatively young areas of international law and a
concluding part on the legal significance of the so-called ‘common heritage
of mankind’ principle has been added.
As mentioned above, this is followed by new separate chapters on
human rights (Chapter 14), international economic law (Chapter 15),
the international protection of the environment (Chapter 16) and on
state responsibility (Chapter 17). The arrangement of the remaining
chapters has also been altered for systematic reasons. In view of the

importance of the topic for understanding the peculiar nature of
international law, Chapter 18 on the peaceful settlement of disputes
between states has been much expanded, taking into account also the
experience of ICSID, the Iran-United States Claims Tribunal and the
complex dispute settlement mechanism under the 1982 Law of the Sea
Convention. Chapter 19 on international wars, civil wars and the right
to self-determination concerns the legality of the use of force (ius ad
bellum) and also discusses new developments with regard to the self-
determination of ethnic, cultural and linguistic minorities and indigenous
peoples. In Chapter 20, the laws of war (ius in bello), international
humanitarian law and international criminal responsibility of individuals
for war crimes are dealt with, including new parts on the International
Criminal Tribunals for former Yugoslavia and Rwanda, and on the
project to establish a Permanent International Criminal Court. Chapter
21 on the Charter and the organs of the United Nations now deals with
certain matters which the previous edition covered in Chapter 15. I have
added some new text on the problem of the UN membership of the
Former Yugoslavia and some more details, inter alia, on the UN budgetary
problems and the role of the UN Secretary-General. The final Chapter
22 on the role of the United Nations with regard to the maintenance of
international peace and security contains new material on the practice
of the UN Security Council under Chapter VII of the UN Charter after
the end of the Cold War and includes detailed case studies of the
invasion of Kuwait by Iraq in 1990, the Allied intervention in the Kurdish
crisis in 1991, the humanitarian intervention in Somalia in 1992,
xvi PREFACE
the tragedy in Rwanda in 1994, the intervention in Haiti in 1994, and the
break-up of Yugoslavia. I have also added a part on the new forms of UN
peacekeeping and, finally, some critical reflections on the role of the Security
Council after the end of the Cold War.

As regards more technical matters, the new edition has transferred
references from the text to notes and provides for extensive cross-references
in the notes (which is a more useful guide than only having to rely on the
index). In addition to the index and the table of cases, a separate table of
treaties and other relevant documents, as well as a table of abbreviations
have been included. While I have attempted to provide enough details of
leading cases and other documents to make discussion of them intelligible,
to encourage the reading of source material I have often given references to
Cases and Materials on International Law (4th edn 1991), by Professor
D.J.Harris, and Basic Documents in International Law, by Professor
I.Brownlie (4th edn 1995). Moreover, systematic use has been made for the
purpose of further study in references to the magnificent Encyclopedia of
Public International Law, edited by Professor R.Bernhardt, the Restatement
of the Law (Third): The Foreign Relations Law of the United States (1987),
prepared by the American Law Institute, and, where appropriate, to The
Charter of the United Nations—A Commentary (1995), edited by Professor
B.Simma, and to United Nations—Law, Policies and Practice (1995), edited
by Professor R.Wolfrum. All of these excellent works provide good further
explanation and well-selected bibliographies on the matters addressed in
the various chapters of this book.
I am very grateful to Peter Morris (T.M.C.Asser Instituut, The Hague)
who carefully read the whole manuscript and improved and enriched it
with his experience as the Assistant General Editor of the Netherlands
Yearbook of International Law. I am also indebted to the ‘anonymous
reviewer’ who has studied the text on behalf of the publishers and who has
made very valuable comments and suggestions. I owe thanks to my
departmental colleague Olivier Ribbelink (University of Amsterdam) who
has given helpful comments on a number of chapters. My thanks are further
due to Bruno Simma (University of Munich) and Malgosia Fitzmaurice
(Queen Mary and Westfield College, University of London) for sharing

their thoughts with me at an early stage of the preparation of the manuscript.
At a time when funds for university libraries are still being cut, I record that
I could not have prepared this edition without access to the excellent facilities
of the libraries of the Peace Palace in The Hague and of the Max Planck
Institute in Heidelberg, whose staff have in every way been most helpful. In
addition, I have received immense, untiring and very capable help in both
research and secretarial services from Liu Jian. Finally, I would like to thank
the publishers for their confidence, patience and impressive spirit of
cooperation.
The final preparation of the manuscript for publication was completed
during September 1996.
Peter Malanczuk
The Hague
November 1996

Abbreviations


AASL Annals of Air and Space Law
AC Appeal Cases (UK)
AD Annual Digest and Reports ofPublic
International Law Cases
AFDI Annuaire Français de Droit Interna-
tional
AFDMAS Annals Français Droit Maritime et
Aéro-Spatial
AI Arbitration International
AJIA Australian Journal of International
Affairs
AJICL African Journal of International

and Comparative Law
AJIL American Journal of International
Law
AJPIL Austrian Journal of Public and
International Law
ALADI Latin American Integration Associa-
tion
All ER All England Law Reports
ANC African National Congress
Ann. IDI Annuaire de l’Institut de Droit
International
Anu. DI Anuario de Derecho Internacional
APEC Asian-Pacific-Economic-
Cooperation
ARABSAT Arab Satellite Organization
Arizona JICL Arizona Journal of International
and Comparative Law
ASDI Annuaire Suisse de Droit
International
ASEAN Association of South East Asian
Nations
ASIL IELIGNewsl. ASIL International Environmental
Law Interest Group Newsletter
ASIL IELNews ASIL International Environmental
Law News
ASIL Proc. Proceedings of the American Society
of International Law
ASILS ILJ Association of Student International
Law Societies International Law
Journal

AsYIL Asian Yearbook of International Law
AUJILP American University Journal of
International Law and Policy
AULR American University Law Review
AVR Archiv des Völkerrechts
AYIL Australian Yearbook of Interna-
tional Law
BayVBI. Bayerische Verwaltungsblätter
BCICLR Boston College International and
Comparative Law Review
BENELUX BENELUX Economic Union
(Belgium, The Netherlands and
Luxembourg)
BPIL British Practice in International
Law
Brooklyn JIL Brooklyn Journal of International
Law
Brownlie BDIL I.Brownlie (ed.), Basic Documents
in International Law, 4th edn,
1995
BYIL British Year Book of International
Law
CACM Central American Common
Market
Cardoza LR Cardoza Law Review
CARICOM Caribbean Community
Cd., Cmd., Cmnd., Command Papers (UK) 1900–
Cm. 1918, 1919–1956, 1956–1986,
1986– respectively
CEFTA Central European Free Trade

Area
CENTO Central Treaty Organization
CFCs chlorofluorocarbons
ChD Law Reports, Chancery Division
(UK)
CIA Central Intelligence Agency
CILSA The Comparative and International
Law Journal of Southern Africa
CJIELP Colorado Journal of International
Environmental Law and Policy
CJPS Canadian Journal of Political
Science
Cl. Ct. US Court of Claims Reports
CLB Commonwealth Law Bulletin
CLP Current Legal Problems
CLR Commonwealth Law Reports
CMLR Common Market Law Reports
Colum. JTL Columbia Journal of Transnational
Law
Colum. LR Columbia Law Review
xviii ABBREVIATIONS
Colum. JIL Columbia Journal of International
Law
Cong. Rec. Congressional Records (US)
Conn. JIL Connecticut Journal of International
Law
Cornell ILJ Cornell International Law Journal
CSCE Conference on Security and Coopera-
tion in Europe
CTS Consolidated Treaty Series

CWILJ California Western International Law
Journal
CWRJIL Case Western Reserve Journal of
International Law
CYIL Canadian Yearbook of International
Law
Dalhouse LJ Dalhouse Law Journal
Denning LJ Denning Law Journal
Denver JILP Denver Journal of International Law
and Policy
Dept. State Bull. Department of State Bulletin (US)
DGVR Berichte der Deutschen Gesellschaft
für Völkerrecht
Dick. JIL Dickinson Journal of International
Law
Doc. Document(s)
DOMREP Mission of the Representative of the
UN Secretary-General in the
Dominican Republic
Droit et Soc. Droit et Société
Duke JCIL Duke Journal of Comparative and
International Law
EA Europa-Archiv
EC European Community
ECE UN Economic Commission for
Europe
ECOSOC United Nations Economic and Social
Council
ECOWAS Economic Community of West
African States

ECSC European Coal and Steel Community
EEA European Economic Area
EEC European Economic Community
EFTA European Free Trade Association
EJIL European Journal of International
Law
ELQ Ecology Law Quarterly
Emory ILR Emory International Law Review
EPIL Encyclopedia of Public International
Law
(R.Bernhardt, ed., EPIL 1=
EPIL, Instalment 1; EPIL I=
EPIL, Volume I)
EPL Environmental Policy and Law
ER English Reports
ESA European Space Agency
ET European Taxation
ETS European Treaty Series
EU European Union
Eur Asia Stud. Europe-Asia Studies
EURATOM European Atomic Energy Community
EUTELSAT European Telecommunications
Satellite Organization
Ex. D. Law Reports, Exchequer Division
(UK)
F. 2 d Federal Reports (Second Series) (US)
F. (J.C.) Fraser, Justiciary Cases (Scotland)
F. Supp. Federal Supplement (US)
FA Foreign Affairs
FAO Food and Agriculture Organization

FAZ Frankfurter Allgemeine Zeitung
FCN Friendship, Commerce and Naviga-
tion Treaty
Fla. JIL Florida Journal of International Law
Fordham ILJ Fordham International Law Journal
FP Foreign Policy
FS Bernhardt U.Beyerlin/M.Bothe/R. Hofmann/E
U.Petersmann (eds), Recht
zwischen Umbruch und
Bewahrung. Festschrift für Rudolf
Bernhardt, 1995
FSIA Foreign Sovereign Immunity Act (US)
FTA Canada-United States Free Trade
Agreement
FYIL Finnish Yearbook of International
Law
GA United Nations General Assembly
Ga. JICL Georgia Journal of International and
Comparative Law
GATS General Agreement on Trade in
Services
GATT General Agreement on Tariffs and
Trade
GEF Global Environmental Facility (World
Bank)
Geo. LJ Georgetown Law Journal
GNP Gross National Product
Gov. & Oppos. Government and Opposition
GYIL German Yearbook of International
Law

Hague YIL Hague Yearbook of International
Law
Harris CMIL D.J.Harris, Cases and Materials on
International Law, 4th edn, 1991
Harvard ILJ Harvard International Law Journal
Harvard LR Harvard Law Review
Hastings ICLR Hastings International and Compara-
tive Law Review
Hastings LJ Hastings Law Journal
High Tech. LJ High Technology Law Journal
HM Helsinki Monitor
Houston JIL Houston Journal of International
Law
HRLJ Human Rights Law Journal
HRQ Human Rights Quarterly
HV Humanitäres Völkerrecht
IA International Affairs
IAEA International Atomic Energy Agency
IATA International Air Transport Associa-
tion
IBRD International Bank for Reconstruc-
ABBREVIATIONS xix
tion and Development (World
Bank)
ICAO International Civil Aviation Organi-
zation
ICC International Chamber of Commerce
ICJ International Court of Justice
ICJ Rep. International Court of Justice Reports
of Judgments, Advisory Opinions

and Orders
ICJYb Yearbook of the International Court
of Justice
ICLQ International and Comparative Law
Quarterly
ICRC International Committee of the Red
Cross
ICSID International Centre for the Settle-
ment of Investment Disputes
ICSID Rev. ICSID Review-Foreign Investment
Law Journal
ICTY Bull. International Criminal Tribunal for
the Former Yugoslavia Bulletin
IDA International Development Associa-
tion
IFAD International Fund for Agricultural
Development
IFC International Finance Corporation
IFOR Implementation Force in (former)
Yugoslavia
IHT International Herald Tribune
IJ International Journal
IJECL International Journal of Estuarine
and Coastal Law
IL The International Lawyer
ILA International Law Association
ILA Rep. Report(s) of the Conference(s) of the
International Law Association
ILC International Law Commission
ILCYb Yearbook of the International Law

Commission
ILM International Legal Materials
ILO International Labour Organization
ILP International Law and Policy
ILQ International Law Quarterly
ILR International Law Reports
ILT The Irish Law Times and Solicitors’
Journal
IMF International Monetary Fund
IMO International Maritime Organization
Indian JIL Indian Journal of International Law
INMARSAT International Maritime Satellite
Organization
INTELSAT International Telecommunications
Satellite Organization
IO International Organization
IP International Peacekeeping
IPTF International Police Task Force
IQ The Indonesian Quarterly
IR International Relations
Iran-US CTR Iran-United States Claims Tribunal
Reports
IRRC International Review of the Red
Cross
Israel LR Israel Law Review
ITO International Trade Organization
ITU International Telecommunication
Union
IUCN International Union for the Conserva-
tion of Nature

IYIL Italian Yearbook of International
Law
Jap. Ann. IL The Japanese Annual of International
Law
JDI Journal du droit international
JIArb. Journal of International Arbitration
JPR Journal of Peace Research
JSpaceL Journal of Space Law
JTLP Journal of Transnational Law &
Policy
JWTL Journal of World Trade Law
KB King’s Bench (UK)
KCA Keesing’s Contemporary Archives
LAS League of Arab States
Leg. Stud. Legal Studies
LJIL Leiden Journal of International Law
LNOJ League of Nations Official Journal
LNTS League of Nations Treaty Series
LPIB Law and Policy of International
Business
LOS Bull. Law of the Sea Bulletin
Loyola LAICLJ Loyola of Los Angeles International
and Comparative Law Journal
LQR Law Quarterly Review
MERCOSUR Mercado Comun del Sur (Treaty
Establishing a Common Market
between Argentina, Brazil,
Paraguay and Uruguay)
MFN most-favoured-nation clause
Mich. JIL Michigan Journal of International

Law
MIGA Multilateral Investment Guarantee
Agency
MINURSO Mission des Nations Unies pour le
Réferendum de la Sahara de
l’Ouest (United Nations Mission
for the Referendum in Western
Sahara)
Mont. LR Montana Law Review
MSF Médecins Sans Frontières
NAFO North Atlantic Fisheries Organization
NAFTA North American Free Trade
Agreement
NATO North Atlantic Treaty Organization
NCJILCR North California Journal of
International Law and Commer-
cial Regulation
NGOs non-governmental organizations
xx ABBREVIATIONS
NIEO New Inter national Economic Order
NILR Netherlands International Law
Review
NJILB Northwestern Journal of Interna-
tional Law and Business
NLJ New Law Journal
Nordic JIL Nordic Journal of International Law
NQHR Netherlands Quarterly of Human
Rights
NULR Northwestern University Law Review
NWICO New World Information and

Communication Order
NYIL Netherlands Yearbook of Interna-
tional Law
NYL. Sch. ICL New York Law School Journal of
International and Comparative
Law
NYUJILP New York University Journal of
International Law and Politics
NYULR New York University Law Review
OAS Organization of American States
OAU Organization of African Unity
OCSE Organization for Cooperation and
Security in Europe
ODA Official Development Aid
ODECA Organization of Central American
States
OECD Organization for Economic Coopera-
tion and Development
OIC Organization of the Islamic Confer-
ence
Okla. CULR Oklahoma City University Law
Review
ONUC Opérations des Nations Unies pour le
Congo (United Nations Force in
the Congo)
ONUCA United Nations Observer Group in
Central America
ONUMOZ United Nations Operation in
Mozambique
ONUSAL United Nations Observer Mission in

El Salvador
ONUVEH UN Observer Group for the
Verification of the Elections in
Haiti
OPEC Organization of Petroleum Exporting
Countries
Osteur Recht Osteuropa-Recht
Ottawa LR Ottawa Law Review
Pace ILR Pace International Law Review
Palestine YIL Palestine Yearbook of International
Law
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International
Justice
PCIJ Series A Permanent Court of International
Justice, Collection of Judgments
(1922–1930)
PCIJ Series A/B Permanent Court of International
Justice, Collection of Judgments,
Orders and Advisory Opinions
(1931–1940)
PCIJ Series B Permanent Court of International
Justice, Collection of Advisory
Opinions (1922–1930)
PD Law Reports, Probate, Divorce and
Admiralty Division, 1875–90
(UK)
Pepp. LR Pepperdine Law Review
P.L. Public Law
PLO Palestine Liberation Organization

Proc. IISL Proceedings of the International
Institute of Space Law
PYIL Polish Yearbook of International Law
QB Law Reports, Queen’s Bench
Division (U.K.)
RBDI Revue Beige de Droit International
RdC Recueil des Cours (Hague Academy
of International Law)
RDI Revue de Droit International, de
Sciences Diplomatiques et
Politiques
REDI Revue Egyptienne de Droit Interna-
tional
Restatement American Law Institute, Restatement
(Third) (Third) of the Foreign Relations
Law of the United States, 2 vols,
1987
RFDAS Revue Française de Droit Aérien et
Spatial
RGDIP Revue Générale de Droit Interna-
tional Public
RIA Review of International Affairs
RIAA Reports of International Arbitral
Awards (United Nations)
RIS Review of International Studies
RSDI Revue Suisse de Droit International
RPF Rwandese Patriotic Front
S. Ct. Supreme Court Reporter (US)
San Diego LR San Diego Law Review
Santa Clara LR Santa Clara Law Review

SAYIL South African Yearbook of Interna-
tional Law
SC United Nations Security Council
SCHR REIHE Schriftenreihe der Deutschen
DT. GRUPPE AAA Gruppe der AAA. Association des
Auditeurs et Anciens Auditeurs de
l’Académie de Droit International
de La Haye
SDR special drawing rights
SELA Sistema Económico Latinoamericano
(Latin American Economic
System)
SEW Sociaal-Economische Wetgeving.
Tijdschrift voor Europees en
Economisch Recht
ABBREVIATIONS xxi
SIA State Immunity Act (UK)
Simma CUNAC B.Simma (ed.), The Charter of the
United Nations. A Commentary,
1995
Sing. JLS Singapore Journal of Legal Studies
SP Space Policy
Space Comm. Space Communications
Sri Lanka JIL Sri Lanka Journal of International
Law
St. Louis ULJ St. Louis University Law Journal
Stanford JIL Stanford Journal of International
Law
Stat. United States Statutes at Large
Suffolk TLJ Suffolk Transnational Law Journal

SWAPO South West African People’s
Organization
SWMTEP System-Wide Medium-Term
Environment Programme
TA Transnational Associations
Temple ICLJ Temple International and Compara-
tive Law Journal
Texas ILJ Texas International Law Journal
TNCs transnational corporations
Trans. Grot. Soc. Transactions of the Grotius Society
TRIMS trade-related investment measures
TRIPS trade-related intellectual property
rights
TSJ Telecommunications & Space Journal
UKTS United Kingdom Treaties Series
UN United Nations
UNAMIC United Nations Advance Mission in
Cambodia
UNAMIR United Nations Assistance Mission
for Rwanda
UNASOG United Nations Aouzou Strip
Observation Group
UNAVEM United Nations Angola Verification
Mission
UNCC United Nations Compensation
Commission
UNCED United Nations Conference on
Environment and Development
UNCHR United Nations Centre for Human
Rights

UNCITRAL United Nations Commission on
International Trade Law
UNCLOS United Nations Conference on the
Law of the Sea
UNCOPUOS United Nations Committee on the
Peaceful Uses of Outer Space
UNCRO United Nations Confidence Restora-
tion Operation in Croatia
UNCTAD United Nations Conference on Trade
and Development
UNDOF United Nations Disengagement
Observer Force (Golan Heights)
UNDP United Nations Development
Programme
UNEF United Nations Emergency Force
UNEP United Nations Environment
Programme
UNESCO United National Educational,
Scientific and Cultural Organiza-
tion
UNFICYP United Nations Peacekeeping Force in
Cyprus
UNGOMAP United Nations Good Offices Mission
in Afghanistan and Pakistan
UNIDO United Nations Industrial Develop-
ment Organization
UNIFIL United Nations Interim Force in
Lebanon
UNIIMOG United Nations Iran-Iraq Military
Observer Group

UNIKOM United Nations Iraq-Kuwait
Observation Mission
UNIPOM United Nations India-Pakistan
Observation Mission
UNISPACE United Nations Conference on the
Exploration and Peaceful Uses of
Outer Space
UNITAF Unified Task Force
UNMIH United Nations Mission in Haiti
UNMOT United Nations Mission of Observers
in Tajikistan
UNOMIG United Nations Observer Mission in
Georgia
UNOMIL United Nations Observer Mission in
Liberia
UNOMUR United Nations Observer Mission in
Uganda-Rwanda
UNOSOM United Nations Operation in Somalia
UNPO Unrepresented Nations and Peoples
Organization
UNPREDEP United Nations Preventive Deploy-
ment Force in the former
Yugoslav Republic of Macedonia
UNPROFOR United Nations Protection Force in
(former) Yugoslavia
UNSF United Nations Security Force in
West New Guinea (West Irian)
UNTAC United Nations Transitional
Authority in Cambodia
UNTAG United Nations Transitional

Assistance Group in Namibia
UNTS United Nations Treaties Series
UNYb United Nations Yearbook
UNYOM United Nations Yemen Observation
Mission
UPU Universal Postal Union
US United States Reports (Supreme
Court)
US-Mexico LJ United States-Mexico Law Journal
xxii ABBREVIATIONS
USCMA United States Court Military
Appeals
USTS United States Treaty Series
Vand. JTL Vanderbilt Journal of
Transnational Law
Vand. LR Vanderbilt Law Review
Virginia JIL Virginia Journal of International
Law
VN Vereinte Nationen
VRÜ Verfassung und Recht in Ubersee
WEU Western European Union
WHO World Health Organization
WIPO World Intellectual Property
Organization
Wis. ILJ Wisconsin International Law
Journal
WLR Weekly Law Reports (UK)
WMO World Meteorological Organiza-
tion
Wolfrum UNLPP R.Wolfrum (ed.), United Nations:

Law, Policies and Practice, 2
vols, 1995 (UNLPP I= UNLPP
Vol. 1; UNLPP II= UNLPP
Vol. 2)
WTO World Trade Organization
Yale JIL Yale Journal of International Law
Yale LJ Yale Law Journal
YIEL Yearbook of International
Environmental Law
ZaöRV Zeitschrift für ausländisches
öffentliches Recht und
Völkerrecht
ZLW Zeitschrift für Luft- und
Weltraumrecht

1 Introduction

The problem of defining international law
The term ‘international law’ was first used by Jeremy Bentham in 1780
in his Introduction to the Principles of Morals and Legislation. Since
about 1840, in the English and Romance languages it has replaced the
older terminology ‘law of nations’ or ‘droit de gens’ which can be traced
back to the Roman concept of ius gentium and the writings of Cicero.
1
In the German, Dutch, Scandinavian and Slavic languages the older
terminology is still in use (‘Völkerrecht’, ‘Volkenrecht’, etc.).
Until the period between the two World Wars, writers found no
difficulty in defining (public) international law,
2
in one formulation or

another, as the law that governs the relations between states amongst
each other. The prevailing positivist doctrine
3
of the nineteenth century
and first half of the twentieth century held that only states could be
subjects of international law, in the sense of enjoying international legal
personality
4
and being capable of possessing international rights and
duties, including the right to bring international claims.
5
However, this did not quite reflect reality even at that time. The Holy
See,
6
although not a state, was recognized to have international legal
personality, and so, for certain purposes, were insurgents
7
and some
forerunners of modern international organizations.
8
Since the inter-war
period, the matter has become more complicated due to both the
expansion of the scope of international law into new areas and the
emergence of actors other than states on the international plane, such as
intergovernmental organizations established by states, non-governmental
organizations created by private individuals, transnational companies,
individuals and groups, including minorities and indigenous peoples.
9
Some of these new actors have also acquired international legal
personality or, at least, certain rights under international law, even if

only granted by treaties concluded between states.
This development is reflected, for example, in the change of the
definition in the Restatement (Third) by the American Law Institute of
the Foreign Relations Law of the United States, according to which
international law

consists of rules and principles of general application dealing
with the conduct of states and of international organizations and
with their relations Inter se, as well as with some of their relations
with persons, whether natural or juridical.
10

Some recent textbooks refrain from any attempt to define international

1 See, for example, Cicero, De officiis,
lib. III, 17, 69.
2 For the meaning of private
international law see Chapter 4 below,
71–4.
3 See Chapter 2 below, 16–17.
4 See Chapter 6 below, 91–2.
5 See Chapters 17, 256–7 and 18, 262–
9 below.
6 See Chapter 5 below, 76.
7 See Chapters 6, 104–5 and 19, 318–
26 below.
8 See Chapters 2, 22 and 6, 92–6
below.
9 See Chapters 6, 105–8 and 19, 338–
41 below.

10 Restatement (Third), para. 101, 22–
4. The previous Restatement only
referred to ‘those rules of law applicable
to a state or international organization
that cannot be modified unilaterally by
it’, ibid., at 24. The concept of ‘foreign
relations law of the United States’ is
broader than ‘international law as it
applies to the United States’. It includes
‘domestic law that has substantial
significance for the foreign relations of
the United States or has other
substantial international
consequences.’, ibid., para. 1, at 7.
2 INTRODUCTION
11 See, for example, I.Brownlie,
Principles of Public International
Law, 4th edn 1990. On the sources
of international law see Chapter 3
below, 33–62.
12 R.Y.Jennings, International Law,
EPIL II (1995), 1159–78, at 1165.
13 See M.Koskenniemi, The Future
of Statehood, Harvard ILJ 32 (1991),
397; C.Schreuer, The Waning of the
Sovereign State: Towards a New
Paradigm for International Law?,
EJIL 4 (1993), 447–71; L.A.Khan,
The Extinction of Nation-States. A
World Without Borders, 1996 and

Chapter 2 below, 17–18 on the
doctrine of state sovereignty.
14 See Chapter 21 below, 369–73.
15 Article 35, UN Charter, text in
Brownlie BDIL, 1. See Chapter 22
below, 385–430.
16 Article 34(1), Statute of the ICJ,
ibid., 438. See Chapter 18 below,
281–93.
17 See Chapter 17 below, 256–7.
18 See Chapter 5 below, 75–90.
19 See Chapter 3 below, 36–48.
20 See O.Schindler, Regional
International Law, EPIL 7 (1984),
404–9 and Chapters 2, 14–15 and
3, 41 below.
21 See Chapter 3 below, 44.
22 See Chapter 2 below, 30–2.
23 See Chapter 2 below, 28–33.
24 See E.McWhinney, United
Nations Law Making: Cultural and
Ideological Relativism and
International Law Making for an Era
of Transition, 1984; R J.Dupuy
(ed.), The Future of International
Law in a Multicultural World, 1984;
A.Cassese, International Law in a
Divided World, 1986.
law and enter directly into the discussion of its ‘sources’.
11

On a similar
basis, Sir Robert Jennings, the distinguished writer and former President of
the International Court of Justice, has even called into question the general
need for an objective definition of international law with regard to actually
using and applying it.
12
At any rate, in the exposition of the subject in a
textbook, emphasis must be placed at the outset on the circumstance that,
although increasing global interdependence and the emergence of new players
on the international level have put into question the role of the state in
international affairs,
13
international law is still predominantly made and
implemented by states. International organizations are to a large extent
dependent upon these territorial entities and the willingness of their
governments to support them. Only states can be members of the United
Nations,
14
only states are entitled to call upon the UN Security Council if
there is a threat to international peace and security,
15
only states may appear
in contentious proceedings before the International Court of Justice,
16
and
only states can present a claim on behalf of a national who has been injured
by another state,
17
if there is no treaty to the contrary. The individual has
no individual rights in this respect under customary international law and

is dependent on the political discretion of the home state as to whether or
not to present the claim. In other words, the international legal system is
still primarily geared towards the international community of states,
represented by governments.
18
General and regional international law
‘General international law’ refers to rules and principles that are applicable to
a large number of states, on the basis of either customary international law or
multilateral treaties.
19
If they become binding upon all states, they are often
referred to as ‘universal international law’. But there is also regional international
law, which applies only to certain groups of states, such as, for example, certain
rules on diplomatic asylum recognized only by South American states,
20
or the
law of the European Union. Moreover, the term ‘particular international law’
is used to denote rules which are binding upon two or a few states only. Mere
usage, in the sense of widespread practice observed between states without any
sense of legal obligation, is often called international comity.
21
Regionalism tends to undermine the universality of international law,
but it is an important existing feature of the international system.
22
The
universality of international law was at one stage challenged by the
Communist theory of international law and at a later stage by the numerous
new states emerging from the process of decolonization after the Second
World War.
23

These challenges in principle no longer appear. But obviously
the community of more than 185 states in existence today is rather
heterogeneous in terms of military, political and economic power, territorial
size and population, political structure, and cultural and ideological
orientation. This diversity also affects the interpretation and operation of
international law to a considerable extent.
24
Almost all of the existing states,
however, are members of the United Nations and of regional organizations
of various kinds and agree on certain fundamental principles of international