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Akehurst s modern introduction to international law malanczuk


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Akehurst s modern introduction to international law malanczuk

  1. 1. AKEHURST’S MODERN I N T R O D U C T I O N 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.
  2. 2. 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
  3. 3. 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)
  4. 4. 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
  5. 5. 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
  6. 6. 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
  7. 7. 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
  8. 8. 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
  9. 9. 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
  10. 10. 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
  11. 11. 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
  12. 12. 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.
  13. 13. 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
  14. 14. 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,
  15. 15. 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
  16. 16. 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
  17. 17. 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. 2d 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-
  18. 18. 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
  19. 19. 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.GRUPPEAAA 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
  20. 20. 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
  21. 21. 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
  22. 22. 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 doctrine3 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 personality4 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 insurgents7 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.
  23. 23. 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 referredtoas‘universalinternationallaw’.Butthereisalsoregionalinternational 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
  24. 24. CHARACTERISTICS OF INTERNATIONAL LAW 3 law as laid down in the United Nations Charter and the Friendly Relations Declaration of 1970.25 Characteristics of international law International law has a number of special characteristics making it completely different from highly developed national legal systems which are connected with the existence of the modern state and its apparatus. The modern state which emerged in Europe after the fourteenth century centralized the use of force by making it a state monopoly, developing a standing army and a more or less efficient bureaucracy.26 It increasingly engaged in economic and social regulation, and created a sophisticated system of legal institutions, principles and rules regulating society. TheWesternconceptoflaw,withitsnationalandphilosophicalvariations, became a central instrument for the organization and development of both state and civil society. In a systematic sense, this is reflected in the distinction between the three functions, typically entrusted to central organs, of law- making (legislature), law determination (courts and tribunals), and law enforcement (administration, police, army). Domestic law is addressed to a large number of governmental bodies and private individuals and groups of individuals. International law, on the other hand, is primarily concerned with the legal regulation of the international intercourse of states which are organized as territorial entities, are limited in number and consider themselves, in spite of the obvious factual differences in reality, in formal terms as ‘sovereign’ and ‘equal’.27 Thus, international law is a horizontal legal system, lacking a supreme authority, the centralization of the use of force, and a differentiation of the three basic functions of law-making, law determination, and law enforcement typically entrusted to central organs. The United Nations General Assembly is not a world legislature,28 the International Court of Justice in The Hague can operate only on the basis of the consent of states to its jurisdiction,29 and the law-enforcement capacity oftheUnitedNationsSecurityCouncilisbothlegallyandpoliticallylimited.30 Nevertheless, a state which violates an international obligation is responsible for the wrongful act towards the injured state, or, under certain circumstances, to the international community as a whole.31 The injured state can raise an international claim which it may pursue on the basis of special remedies, if available, or by resorting to third-party mediation or conciliation, arbitration or judicial proceedings.32 In the end, however, the role of self-help by states in cases of a violation of their rights is predominant in international law, as compared with the restricted admissibility of self-help of individuals in national legal systems. If one state commits an illegal act against another state, and refuses to make reparation or to appear before an international tribunal, there is (or was until recently) only one sanction available to the injured state: self- help.33 Self-help exists as a sanction in all legal systems. In earlier primitive legal systems, most sanctions involved the use of self-help in one form or another. Even in modern legal systems an individual may defend himself against assault, retake property which has been stolen from him, evict 25 Text in Brownlie BDIL, 36. See Chapter 2 below, 32. 26 For a recent study see H.Spruyt, The Sovereign State and Its Competitors, 1995, See also Chapter 2 below, 10, 17–18. 27 See B.Broms, The Doctrine of Equality of States as Applied in International Organizations, 1959; R.P. Anand, Sovereign Equality of States in International Law, RdC 197 (1986), 13– 228; G.Jaenicke, States, Equal Treatment and Non-Discrimination, EPIL 10 (1987), 456–65; J.M.Castro Rial, States, Sovereign Equality, ibid., 477–81. 28 See Chapters 3, 52–4 and 21, 377–9 below. 29 See Chapter 18 below, 281–93. 30 See Chapters 18, 292–3, 21, 373–7 and 22, 390–1, 425–9 below. 31 See Chapters 3, 58–60 and 17, 254– 72 below. 32 See Chapter 18 below, 273–305. 33 B.-O.Bryde, Self-Help, EPIL 4 (1982), 215–17.
  25. 25. 4 INTRODUCTION 34 See Chapter 19 below, 306–18. 35 See Chapter 17 below, 271–2. 36 See Chapter 22 below, 387–415. 37 See Chapter 3 below, 52–4. 38 See Chapters 21, 373–9 and 22, 385–416, 425–30 below. 39 See Chapter 15 below, 225–7. trespassers from his land and terminate a contract if the other party has broken a major term of that contract. But in modern societies self-help has become the exception rather than the rule, whereas in international law it has remained the rule. At one time states might even go to war to enforce their legal rights. However, this is no longer lawful, with certain exceptions such as self-defence against armed attack.34 The remaining forms of self-help are countermeasures, such as retorsion and reprisals.35 Retorsion is a lawful act which is designed to injure the wrongdoing state —for example, cutting off economic aid (this is lawful because there is no legal obligation to provide economic aid, apart from under special treaty provisions). Reprisals are acts which would normally be illegal but which are rendered legal by a prior illegal act committed by the other state. For instance, if state A expropriates property belonging to state B’s citizens without compensation, state B can retaliate by doing the same to the property of state A’s citizens. Reprisals must be proportionate to the original wrong; for instance, state B could not expropriate property worth several times the value of the property which its citizens had lost; still less would it be entitled to kill or imprison state A’s citizens. One disadvantage of retorsion and reprisals is that the state imposing these measures may injure itself as much as the state against which they are directed; this is particularly so when one state cuts off trade with another state. A recent example has been the reluctance of the United States to use trade sanctions to enforce its criticism of human rights practices in China, in view of the huge Chinese market opportunities for American companies. A more serious disadvantage of self-help is that it works effectively only if the injured state is in some way more powerful or more determined than the wrongdoing state. Not surprisingly, therefore, there has been a recent tendency for sanctions to be imposed by large groups of states, working through international organizations such as the United Nations.36 But the United Nations Security Council can impose sanctions only in limited circumstances, and in the past was often paralysed by the power of veto possessed by each of its five permanent members. The United Nations General Assembly is not subject to the veto, but its resolutions are usually not legally binding (although they are an institutionalized form of public opinion and can be instruments of political pressure).37 Both the Security Council and the General Assembly, being political rather than judicial bodies, base their decisions on political considerations and sometimes pay little attention to the legal rights and wrongs of a dispute.38 International organizations with more specialized functions may exercise a more effective control over their members, especially if, like the International Monetary Fund, they provide essential services.39 A state which was excluded from membership of the Fund would be unable to borrow gold and foreign currency from the Fund to meet a balance of payments crisis. And regional organizations may exercise an even stricter discipline over their members; for instance, the Court of Justice of the European Union has compulsory jurisdiction over member states which are accused of breaking the rules of Community law.40
  26. 26. INTERNATIONAL LAW AS ‘LAW’ 5 However, it must be admitted that sanctions work less effectively in international law than in national law. States are few in number and unequal in strength, and there are always one or two states which are so strong that other states are usually too weak or too timid or too disunited to impose sanctions against them. But this does not mean that international law as a whole works less effectively than national law— only that it works in a different way. In international law there is considered to be collective responsibility of the whole community of a state which has committed an internationally wrongful act. Thus, the civilian population of Iraq, in spite of some precautions taken, was in effect made to suffer under the sanctions adopted by the international community in response to the invasion and occupation of Kuwait by the Iraqi Government in the Second Gulf War.41 International law has, therefore, often been described as a ‘primitive legal system’. But this is a rather misleading characterization. It is true that the impact of power and politics is much more immediately recognizable and directly relevant in international law than in national law. It is also true that international law, due to the lack of central institutions, is heavily dependent on national legal systems (often called ‘municipal law’)42 for its implementation. There are also other features which explain the comparison of the international legal system to the unsophisticated institutions, principles and rules of pre-modern societies. However, on the whole, this characterization fails to distinguish the different nature of international law (as a horizontal, decentralized legal system governing primarily the relations between states) and of developed (centralized and institutionalized) national legal systems. It also does not adequately reflect the relatively high degree of differentiation of international law with regard to the areas it now covers, the proliferation of multilateral and bilateral treaties, the considerable increase since 1945 of the main traditional subjects of international law and the emergence of new actors on the international level, in particular the large number of international organizations created by states for a broad variety of functions. International law as ‘law’ There is an old dispute going back to the early writings of Hobbes and Pufendorf, reinforced in the nineteenth century by Austin’s influential legal theory, on the issue whether international law may be properly called ‘law’.43 The controversy has focused on the relevance of the lack of sanctions in cases of violation of international norms as compared to municipal law and it has often confused the question of whether international law is ‘law’ with the problem of the effectiveness and enforcement of international law.44 In foreign policy thinking, the reductionist perception of international law is still prevalent in the ‘realist’ school which emphasizes the role of power and of national interest in international relations and is connected with names such as Morgenthau,45 Kennan and is also reflected in the latest book by Henry Kissinger.46 40 Articles 169 and 170, EC Treaty. 41 See the report by C.Jochnick/R. Normand/S.Zaidi, Unsanctioned Suffering—A Human Rights Assessment of United Nations Sanctions on Iraq, Centre for Social and Economic Rights, 1996; R.Provost, Starvation as a Weapon: Legal Implications of the United Nations Food Blockade Against Iraq and Kuwait, Colum. JTL 30 (1992), 577–639; E.J. Garmise, The Iraqi Claims Process and the Ghost of Versailles, NYULR 67 (1992), 840–78; R.Normand/C. Jochnick, The Legitimation of Violence: A Critical Analysis of the Gulf War, Harvard ILJ35 (1994), 387–416; B. Graefrath, Iraqi Reparations and the Security Council, ZaöRV 55 (1995), 1– 68. See also Chapter 22 below, 396–9. 42 See Chapter 4 below, 63–71. 43 See Harris CMIL, 1–17. 44 On the problem of the enforcement of international obligations, see the Colloquium in Commemoration of the 600th Anniversary of the University of Heidelberg, 22 and 23 September 1986, ZaöRV 47 (1987), 1 et seq. (with contributions by R.Jennings, R. Bernhardt, K.Zemanek, K.Doehring, E. Stein, J.A.Frowein, G.K.A.Ofosu-Amaah, T.Stein, R.Dolzer and S. Rosenne); P.van Dijk, Normative Force and Effectiveness of International Norms, GYIL 30 (1987), 9; W.E.Butler (ed.), Control Over Compliance with International Law, 1991; J.Delbrück (ed.), The Future of International Law Enforcement. New Scenarios-New Law?, 1993; A.P.Rubin, Enforcing the Rules of International Law, Harvard ILJ 34 (1993), 149–61; J.Delbrück (ed.), Allocation of Law Enforcement Authority in the International System, 1994. 45 H.J.Morgenthau, Politics Among Nations. The Struggle for Power and Peace, 1948. See also the earlier work by E.H.Carr, The Twenty Years Crisis 1919–1939. An Introduction to the Study of International Relations, 1940. 46 H.A.Kissinger, Diplomacy, 1994. See also Chapter 2 below, 32–3.
  27. 27. 6 INTRODUCTION 47 R.St.J.Macdonald, Foreign Policy, Influence of Legal Considerations Upon, EPIL II (1995), 442–6; S.A.Watts, The International Rule of Law, GYIL 36 (1993), 15–45. 48 B.Simma, Reciprocity, EPIL 7 (1984), 400–4. 49 On the role of LegalAdvisers and the impact of international law on foreign policy decision-making see the Symposium in EJIL 2 (1991), 132 et seq. (with contributions by S.M. Schwebel, G.Guillaume, M.Krafft and A.D.Watts);A.Cassese, The Role of LegalAdvisers in Ensuring that Foreign Policy Conforms to International Legal Standards, Mich. JIL 14 (1992), 139; B. Mawhinney/ K.Girtel, Fourth LegalAdvisers’ Meeting at UN Headquarters in New York, AJIL 88 (1994), 379–82; M.A.G.Félix,FifthLegalAdvisers’ Meeting at UN Headquarters in New York, AJIL 89 (1995), 644–9. 50 See Chapter 3 below, 39–40. 51 See Chapter 3 below, 60–2. 52 See Chapter 4 below, 65–71. 53 See L.Henkin, How Nations Behave, 2nd edn 1979. For an instructive description of how governments, courts, international organizations and other bodies apply international legal norms in the course of their work see R.Higgins, Problems and Process: International Law and How We Use It, 1994. 54 See M.Fromont, Les Grands Systèmes de droit contemporains, 1987; K.Zweigert/H.Kötz, Introduction to Comparative Law, 2nd edn 1992; C. Varga, Comparative Legal Culture, 1992; International Encyclopedia of Comparative Law, Vol. II, Chapter 1: The Different Conceptions of the Law; J. Kropholler, Comparative Law, Function and Methods, EPIL I (1992), 702–7; W.E.Butler, Comparative Law and International Law, ibid., 699–702; M. Hilf, Comparative Law and European Law, ibid., 695–9; R.A.Danner/M.-L. Bernal (eds), Introduction to Foreign Legal Systems, 1994. 55 For an example of the differences in the area of constitutional law in two Western federal systems of government see W.J.Josef, The Role of Basic Values in the Constitutional Hermeneutics of Germany and the United States, ZaöRV 56 (1996), 178–204. See further S.P. Sinha, Legal Polycentricity and International Law, 1996; P.Legrand, European Legal Systems Are Not Converging, ICLQ 45 (1996), 52–81. Certainly, the actual role and capability of international law in governing the relations between states must not be exaggerated, in view of the decisive significance of military, economic, political and ideological factors of power. In fact, the role of international law in international relations has always been limited, but it is rarely insignificant.47 Its function in structuring the international system has been enhanced because of increasing global interdependence and the self-interest of states in regulating their intercourse rationally on the basis of reciprocity.48 Therefore, disputes between states are usually accompanied by—in a given case naturally often conflicting— references to international law. Foreign ministries do not unnecessarily employ a regular staff of legal advisors.49 States continuously conclude and implement bilateral and international treaties and establish and operate international organizations. More and more compilations of state practice in international law have been appearing.50 Serious efforts are being made to codify international law.51 Modern national constitutions usually contain references to international law.52 All of this corresponds to the empirical fact that most states are careful to observe most obligations of international law most of the time,53 even in the absence of a compulsory dispute settlement procedure and centralized enforcement agency. Spectacular cases of violation of international law, which attract the attention of the media more than regular conduct, are exceptional and should not be confused with the ordinary course of business between states. The old discussion on whether international law is true ‘law’ is therefore a moot point. First, it should be noted that the general concept of ‘law’ itself and its relative status in society is subject to quite divergent views throughout the world, as has been shown by the modern discipline of comparative legal studies.54 It is based on different ideas, methods and traditions, as a consequence of historical and cultural diversity,55 including the Anglo-Saxon common law tradition in England, the Commonwealth states and the United States, the European continental civil law tradition based on notions of Roman law, the Marxist conception of law as a product of class struggle and historical formations of society, the Islamic concept of law with no separation between state, society and religion, and special traditions in Asia and in Africa. This diversity is also relevant for proper understanding of the different national perceptions on the role and interpretation of international law itself. Secondly, as regards international law as ‘law’, the arguments of the critics centred upon the absence of a legislature and, more recently, upon the topic of sanctions and compliance without recognizing the historical, structural and functional differences between legal systems within states and the international legal system as the necessary starting point of analysis. A horizontal system of law operates in a different manner from a centralized one and is based on principles of reciprocity and consensus rather than on command, obedience and enforcement. A system of law designed primarily for the external relations of states does not work like any internal legal system of a state. After all, there is no reason to assume that the international legal system must, or should, follow the historical models of centralized systems of national law. In effect, what distinguishes the rules and principles of international law from ‘mere
  28. 28. THE SCOPE OF INTERNATIONAL LAW 7 morality’ is that they are accepted in practice as legally binding by states in theirintercoursebecausetheyareusefultoreducecomplexityanduncertainty in international relations. While international law is clearly weaker than municipal law from the viewpoint of independent enforcement, it still provides the external relevant terms of legal reference for the conduct of states in their international relations, based on the fact that, in spite of all differences, they are members of an existing international community.56 The scope of international law The process of change in international law from a system of coordination of the international intercourse of mainly European states in limited areas, such as diplomatic relations and war, to a universal system of cooperation in numerous fields between quite different entities reflects the advances of natural sciences and technology,57 increasing global economic and political interdependence and the need to address problems which can no longer be properly dealt with within a national framework, such as in the fields of communications, international trade, economics and finance, environment and development, or the massive problem of refugee flows. The concept of ‘sovereignty’ of states, although particularly cherished due to their historical experience by the new states which have emerged from the process of decolonization since the 1960s, is becoming more and more antiquated in view of the globalization of the economy and increasing interdependence of states.58 International law now covers vast and complex areas of transnational concern, including traditional topics, such as the position of states,59 state succession,60 state responsibility,61 peace and security,62 the laws of war,63 the law of treaties,64 the law of the sea,65 the law of international water- courses,66 and the conduct of diplomatic relations,67 as well as new topics, such as international organizations,68 economy and development,69 nuclear energy,70 air law and outer space activities,71 the use of the resources of the deep sea,72 the environment,73 communications,74 and, last but not least, the international protection of human rights.75 This development has resulted in increasing specialization in both academia and legal professions in practice. As noted by Oscar Schachter: It is no longer possible for a ‘generalist’ to cope with the volume and complexity of the various branches of international law. Increasingly, the professional international lawyer, whether practitioner or scholar, is a specialist in a particular branch of the law and each branch develops its own complicated and often arcane doctrine.76 This specialization reflects the fact that international law has ‘through maturity, acquired complexity’,77 but the development also now poses problems with regard to the unity of the academic subject.78 The literature on international law has indeed become an immense area of study. While the total production of books on international law had amounted to about 56 See R.Jennings/A.Watts (eds), Oppenheim’s International Law, Vol. I, Part 1, 9th edn 1992, 8–14; H.Mosler, International Legal Community, EPIL II (1995), 1251–5. 57 M.Lachs, Thoughts on Science, Technology and World Law, AJIL 86 (1992), 673–97. 58 On the doctrine of sovereignty see Chapter 2 below, 17–18. 59 See Chapters 5, 75–90, 7, 109–17 and 8, 118–29 below. 60 See Chapter 11 below, 161–72. 61 See Chapter 17 below, 254–72. 62 See Chapter 22 below, 385–430. 63 See Chapters 19, 306–41 and 20, 342–63 below. 64 See Chapter 9 below, 130–46. 65 See Chapter 12 below, 173–97. 66 See Chapter 16 below, 242–3. 67 See Chapter 8 below, 123–7. 68 See Chapters 6, 91–6 and 21, 364– 84 below. 69 See Chapter 15 below, 222–40. 70 See Chapter 16 below, 244. 71 See Chapter 13 below, 198–208. 72 See Chapter 12 below, 173–5, 193–5. 73 See Chapter 16 below, 241–53. 74 See Chapter 13 below, 201–3. 75 See Chapter 14 below, 209–21. 76 O.Schachter, International Law in Theory and Practice, 1991, 1. 77 T.M.Franck, Fairness in International Law and Institutions, 1995, 5. 78 See L.A.N.M.Barnhoorn/K.C. Wellens (eds), Diversity in Secondary Rules and the Unity of International Law, 1995.
  29. 29. 8 INTRODUCTION 79 J.Schwietzke, Review of: E.Beyerly, Public International Law. A Guide to Information Sources, ZaöRV 52 (1992), 1052–3. 80 See, for example, D.Wyatt/A. Dashwood, European Community Law, 3rd edn 1993; D.A.O.Edward/ R.C. Lane, European Community Law, 2nd edn 1995; and the articles in EPIL II 81 See Chapter 6 below, 95–6. 2,000 titles in 1785, by 1967 it had reached the figure of 80,000 books. Currently some 700 books and 3,000 articles on international law are published annually.79 The present book offers only a first introduction to fundamental elements and selected areas of international law. Furthermore, European Community law, which, although part of international law, has become a highly specialized area,80 is outside the scope of this introduction, except for some reference to certain essential characteristics to describe the uniqueness of the ‘supra-national’ European Union as compared with other forms of international organizations.81
  30. 30. 2 History and theory The origin of international law is a matter of dispute among scholars.1 Some authors start by examining the relations and treaties between political entities from ancient times (3000 BC), including pre-classical antiquity in the Near East, ancient Greece and Persia, and the Romano- Hellenistic period.2 The prevailing view in the study of international law is that it emerged in Europe in the period after the Peace of Westphalia (1648), which concluded the Thirty Years War. Again we find different opinions in the literature on the proper classification of the subsequent development. In his interesting book on the epochsofthehistoryofinternationallaw,theGermandiplomatandhistorian Grewe argues that there were three distinct systems of international law after the sixteenth century, each of which was characterized by the interests, ideologies and policies of the power that was predominant in the relevant period: the international legal orders of the Spanish age (1494– 1648), the French age (1648–1815) and of the English age (1815–1919)3 (which the Scots and the Welsh, of course, in contrast to Grewe, would prefer to call ‘British’).4 The Encyclopedia of Public International Law, edited by Rudolf Bernhardt, basically differentiates between the periods from 1648 to 1815, 1815 to the First World War, the inter-war period, and developments since the Second World War.5 But it also has separate entries for regional developments in Africa, the Far East, the Islamic world, Latin America, and South and South-East Asia,6 to avoid the impression of a Eurocentric approach and to clarify that the development of international rules and principles was not a European matter only. With regard to Asia, the work of C.H.Alexandrowicz especially has brought many new insights which had been lost in the course of European expansion.7 As noted by R.P.Anand, it is incorrect to assume that international law has developed only during the last four or five hundred years and only in Europe, or that Christian civilization has enjoyed a monopoly in regard to prescription of rules to govern inter-state conduct.As Majid Khadduri points out: ‘In each civilization the population tended to develop within itself a community of political entities—a family of nations—whose interrelationships were regulated by a set of customary rules and practices, rather than being a single nation governed by a single authority and a single system of law. Several families of nations existed or coexisted in areas such as the ancient Near East, Greece and Rome, China, Islam and Western Christendom, where at least one distinct civilization had developed in each of them. Within each civilization a body of principles and rules developed for regulating the conduct of states with one another in peace and war’.8 1 See W.G.Grewe, Epochen der Völkerrechtsgeschichte, 1984, 19–25; A.Cassese, International Law in a Divided World, 1986, 37–8; H.Steiger, Völkerrecht, in O.Brunner/W.Conze/R. Koselleck (eds), Geschichtliche Grundbegriffe, Vol. 7, 1992, 97–140. For a good collection of documents see W.G.Grewe (ed.), Fontes Historiae Iuris Gentium: Sources Relating to the History of International Law, Vol. I:1380 BC-1493 (1985), Vol. II:1493–1815 (1988), Vol. III 1/2:1815–1945 (1992). See also A.Nussbaum, A Concise History of the Law of Nations, 1962; J.H.W.Verzijl, International Law in Historical Perspective, 11 vols, 1968– 1991; P.S.Onuf/N.Onuf, Federal Union, Modern World, The Law of Nations in an Age of Revolutions, 1776–1814, 1993; H.Legohérel, Histoire du droit international public, 1996. 2 W.Preiser, History of the Law of Nations: Ancient Times to 1648, EPIL II (1995), 716–49. 3 Grewe (1984), op. cit., 43. For an excellent analysis of the strategic- economic reasons for the changes in the international system see P.Kennedy, The Rise and Fall of the Great Powers, Economic Change and Military Conflict from 1500 to 2000, 1987. See also C.J. Barlett, The Global Conflict. The International Rivalry of the Great Powers, 1880–1990, 2nd edn 1994. 4 On the multinational nature of the British unitary state and regionalist tendencies, see P.Malanczuk, Region und unitarische Struktur in Großbritannien, 1984. 5 History of the Law of Nations, EPIL II (1995): S.Verosta, 1648 to 1815, 749– 67; H.-U.Scupin, 1815 to the First World War, 767–93; W.G.Grewe, the First World War to the Second World War, 839–49; O.Kimminich, Since the Second World War, 849–61. 6 History of the Law of Nations— Regional Developments, EPIL II (1995): T.O.Elias,Africa, 793–802; S.Miyazaki, Far East, 802–9; A.S.El-Kosheri, Islam,
  31. 31. 10 HISTORY AND THEORY 809–18;A.T.Y.Serra, LatinAmerica, 818–24; N.Singh, South and South- EastAsia, 824–39. 7 C.H.Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th centuries), 1967; Treaty and Diplomatic Relations Between European and SouthAsian Powers in the Seventeenth and Eighteenth Centuries, RdC 123 (1968– I), 121 et seq. See also J.A.Thomas, History and International Law in Asia: ATime for Review, in R.St.J.Macdonald (ed.), Essays in Honour of Wang Tieya, 1994, 813–57. 8 R.P.Anand, The Influence of History on the Literature of International Law, in R.St.J.Macdonald/D.M.Johnston (eds), The Structure and Process of International Law, 1983, 342. 9 See Chapter 22 below, 395–415, 423–30. 10 See Grewe (1984), op. cit.; Anand, op. cit., 344. On one aspect see also T. Meron, The Authority to Make Treaties in the Late Middle Ages, AJIL 89 (1995), 1–20. 11 See text below, 17–18. The problem of periodization is well-known in historical studies in general. To a large extent the classification of history into periods is arbitrary and depends on the criteria applied. Therefore, not too much importance should be attached to it. For the purposes of this introduction it suffices to broadly distinguish between the ‘classical’ system of international law (1648–1918) and the development of ‘modern’ or ‘new’ international law since the First World War. The classical system was based on the recognition of the modern sovereign state as the only subject of international law. This system was composed of numerous sovereign states considered as legally equal and who accepted the unlimited right to wage war to enforce claims and protect national interests. In essence it reflected the interaction among European powers and the imposition of their international legal order upon the rest of the world in the three centuries following the Peace of Westphalia. From 1919 onwards a fundamental transformation of the international system took place with the attempt to organize the international community and to ban the use of force. The development of modern international law can conveniently be described in the stages from the First World War to the Second World War, including the split of the international community in the wake of the Russian Revolution and the creation of the League of Nations, from the establishment of the United Nations to decolonization (1945–60), and from the further expansion of the international community to the end of the Cold War marked by the dissolution of the Soviet empire (1960–89). The attempt to find a ‘New World Order’ after the end of the bipolar East-West conflict and the difficulties in the current phase of the development of international law will be addressed in the final chapter of this book.9 The formation of European international law Even during the Middle Ages in Western Europe international law existed.10 But medieval Europe was not very suitable for the development of international law, because it was not divided into states in the modern sense. Nowadays we think of states as having undisputed political control over their own territory, and as being independent of external political control. Medieval kings were not in this position; internally, they shared power with their barons, each of whom had a private army; externally, they acknowledged some sort of allegiance to the Pope and to the Holy Roman Emperor. When strong centralized states, such as England, Spain, France, the Netherlands and Sweden began to emerge, claiming unrestricted sovereignty and no longer submitting to a superior authority, new international standards evolved, also in relation to non-European powers like the Ottoman Empire, China and Japan. In the fifteenth and sixteenth centuries, with the discovery of the sea routes to the Far East and the rediscovery of America, the sea powers transcended the previous limits of the political world of Europe. This was followed by the development of the concept of the sovereign state, first in theory in the sixteenth century by Bodin,11 then in reality in Spain and, in the transition to the seventeenth century, also in France.
  32. 32. EUROPEAN INTERNATIONAL LAW AFTER 1648 11 Features of European international law in state practice after 1648 In state practice, the year 1648 marking the Peace of Westphalia12 is considered as a watershed, at least in Europe where a new political order was created, to be replaced only after the defeat of Napoleon by the Vienna Congress of 1815. Within Europe the Peace of Westphalia ended the devastating religious wars between Catholic and Protestant countries and led to the recognition of Protestant powers and of the fact that the state is independent of the Church. Three hundred or so political entities, constituting the remains of the Holy Roman Empire, received the right to enter into alliances with foreign powers under certain restrictions. While Germany was divided into a number of comparatively small states, France, Sweden and the Netherlands were recognized as new big powers, and Switzerland and the Netherlands were accorded the position of neutral states. The Empire disintegrated and the decline of the power of the Church accelerated. As the Italian scholar Cassese notes with regard to the system set up by the Peace of Westphalia: ‘by the same token it recorded the birth of an international system based on a plurality of independent states, recognizing no superior authority over them.’13 The Peace of Westphalia envisaged a collective security system which obliged parties to defend its provisions against all others. Disputes were to be referred to a peaceful settlement or a legal adjudication. If no solution was found on this basis within three years, all other parties were to come to the assistance of the injured party and allowed to use force. This system was never put into practice. Power politics and continuously shifting military alliances among European states overruled it, reflecting the attempt to maintain a balance of power14 which was the prevailing political principle in their foreign policy. Friederich Gentz, the collaborator of Metternich, was later (1806) to define the European balance of power accurately as ‘an organization of separately existing states of which no single one has the ability to impair the independence or the basic rights of the others without meeting with effective resistance and thus having to risk danger for itself’.15 What became known as ‘European public law’ (ius publicum europaeum; droit public de l’Europe) evolved from the increased diplomatic and violent intercourse and ever-changing alliances among European powers on the basis of this principle, which was to be only temporarily abolished through the conquest of Europe by Napoleon. The French Revolution of 1789, however, had profoundly challenged the basis of the existing system by advocating the ideas of freedom and self-determination of people16 which were meant to be implemented beyond the boundaries of France, and denied the rights of monarchs to dispose of state territory and population according to their own discretion. With the restoration of the old order in Europe at the Vienna Congress of 1815,17 the second attempt in history to create a collective security system was somewhat more successful, of course, under its own terms and historical conditions. The Treaties of Paris created the Holy Alliance of Christian nations between the monarchies of Austria, Russia and Prussia, and an anti-revolutionary military alliance between Austria, Prussia, 12 See Zayas, Westphalia, Peace of (1648), EPIL 7 (1984), 536–9. 13 Cassese, op. cit., 37. 14 See A.Vagts/D.Vagts, Balance of Power, EPIL I (1992), 313–15. 15 Cited by Verosta, 1648 to 1815, op. cit., at 751. 16 See Chapter 19 below, 326–40. 17 F.Münch, Vienna Congress (1815), EPIL 7 (1984), 522–5.
  33. 33. 12 HISTORY AND THEORY 18 See S.Verosta, Aix-La-Chapelle, Congress of (1818), EPIL I (1992), 94– 5; Verosta, Holy Alliance, EPIL II (1995), 861–3. 19 A.Randelzhofer, Great Powers, EPIL II (1995), 618–22. 20 T.Schieder, Crimean War, EPIL I (1992), 867–9. 21 Text in 114 CTS 409. See T. Schieder, Paris Peace Treaty (1856), EPIL 7 (1984), 376–8. 22 F.Münch, Berlin Congress (1878), EPIL I (1992), 387–9. 23 F.Münch, Balkan Wars (1912/ 1913), EPIL I (1992), 319–21. 24 On this period see S.Verosta, Kollektivaktionen der Mächte des Europäischen Konzerts (1886– 1914), 1988. 25 J.Fisch, Die europäische Expansion und das Völkerrecht, 1984; F. Ermarcora, Colonies and Colonial Régime, EPIL I (1992), 662–6. Russia, and England, joined later also by France, to intervene against liberal and nationalist uprising threatening the established order.18 The era of cooperation between the Great Powers19 in Europe came to an end with the dispute over the Balkans and their diverging strategic interests with regard to the declining Turkish empire. The Crimean War,20 in which Russia was defeated by the alliance of France and Great Britain, supported by Piedmont-Sardinia and Turkey, ended with the Paris Peace Treaty of 1856.21 But the Berlin Congress of 187822 failed to solve the Balkan problems and the struggle of European powers over the distribution of spoils emerging in the Orient from the disintegration of the Ottoman Empire culminated in the Balkan Wars of 1912/13,23 bringing the Concert of Europe to its end.24 Colonization and the relation to non-European powers One important aspect of the nature of international law in the age of European colonization of the world,25 was the relationship of European states, unified by Christianity, to non-European powers. European expansion abroad in the interest of trade and commerce was promoted in England, the Netherlands and France by ruthless profit-making companies, such as the British East India Company, enjoying privileges which permitted them to perform state functions in overseas territories. On the inter-state level, at first Europeans were prepared to admit that non-European states had at least limited rights under the European system of international law. Non-European states were also often willing to concede that European states had at least limited rights under their various non-European systems of international law, and so legal relations, at the beginning on equal footing, between European and non- European states became possible. However, these relations did not constitute a true universal legal system based on common values or institutions, and states existed separately without any extensive cooperation. The Europeans recognized the Mogul Empire in India, the Ottoman Empire, Persia, China, Japan, Burma, Siam (renamed Thailand in 1939) and Ethiopia as established political entities, but they were aware that these states did not play a major role in global affairs. By the Paris Peace Treaty of 1856 Turkey was even expressly admitted (as the first non-Christian nation) to the Concert of Europe. On the other hand, the Ottoman Empire, for example, had found it difficult to accept the Christian nations it was confronted with at its borders in Europe as equal and was insisting on its superiority. Similarly, China, ‘the empire in the centre of the earth’, preferred isolation to contact with foreigners, from whom nothing more than tribute was expected to be due. When a British delegation from King George III (1760–1821), backed by some handsome new technical gifts, requested in 1793 that China accept a British envoy, the Emperor responded: As to your entreaty to send one of your nationals to be accredited to my Celestial Court and to be in control of your country’s trade with China, this request is contrary to all usage of my dynasty and cannot possibly be entertained…Our ceremonies and code of laws differ so completely from your own that, even if your Envoy were able to acquire the rudiments of our civilization, you could not
  34. 34. EUROPEAN INTERNATIONAL LAW AFTER 1648 13 possibly transplant our manners and customs to your alien soil…Swaying the wide world, I have but one aim in view, namely, to maintain a perfect governance and to fulfill the duties of the state…I set no value on objects strange or ingenious, and have no use for your country’s manufactures.26 Japan, after the ascent to power of the Shoguns, ended the infiltration by Christian missionaries and also cut itself off from all alien contact, the only exception being Dutch merchants who were permitted to continue business at a trading post at Nagasaki. It took until the nineteenth century for European powers to re-establish trade with China and Japan with the threat and use of force, invoking, inter alia, the alleged legal principle of ‘freedom of trade’. In sum, although legally all members of the international community were equal, in fact, the international system was dominated by the great powers of Britain, France, Spain, Portugal, the United States, Russia, Austria, Prussia and the Netherlands. Following the industrial revolution in Europe after the late eighteenth century, in the nineteenth century the international community to a large extent had virtually become a European one on the basis of either conquest or domination. By about 1880 Europeans had subdued most of the non-European states, which was interpreted in Europe as conclusive proof of the inherent superiority of the white man, and the international legal system became a white man’s club, to which non-European states would be admitted only if they produced evidence that they were ‘civilized’. In the case of old powers, such as Turkey, Siam (Thailand), China and Japan, Western states basically relied on the so-called capitulation system, treaties which were designed to establish lasting privileges for European trade and commerce in those states and which exempted Europeans from local jurisdiction. In the case of communities without sufficient central authority, the method was simply conquest and appropriation. Conquest and appropriation became particularly apparent in the scramble for Africa,27 the dividing up of the continent among European powers at the Berlin West Africa Conference 1884/5, which managed to settle the issues among colonial powers without provoking another European war.28 Only rarely were nations which had been selected for colonization able to offer effective resistance, as in the case of Ethiopia in 1896 when Emperor Menelik’s forces humiliated the Italians in the battle of Adwa. The fate of China offers an illuminating example. After the Opium War of 1842, fought under the premise of securing the sale of the drug in China, the Treaty of Nanking compelled China to surrender the island of Hong Kong to Britain.29 It was followed by other ‘unequal treaties’ imposing diplomatic relations and increasing the number of available trading ports.30 The anti-foreign spirit in China in response to Western intervention in the distracted Empire resulted in the famous Boxer rebellion. The Boxers, known in China as ‘Patriotic Harmonious Fists’, found official support for their ‘China for the Chinese’ objective. But following attacks on Western legations in Beijing and the murder of Europeans, military intervention led 26 Emperor Ch’ieng-lung, cited by Verosta, 1648 to 1815, op. cit., at 761. 27 See T.Pakenham, The Scramble for Africa 1876–1912, 1992. 28 F.Münch, Berlin West Africa Conference (1884/1885), EPIL I (1992), 389–91. 29 A.D.Hughes, Hong Kong, EPIL II (1995), 870–3. See also Harris CMIL, 235. On the agreement to return Hong Kong to China in 1997 see Chapter 10 below, 158. 30 See Wang Tieya, International Law in China: Historical and Contemporary Perspectives, RdC 221 (1990–II), 193– 369; W.Morvay, Unequal Treaties, EPIL 7 (1984), 514–17. See also Chapters 9, 139–40 and 10, 158 below.